in Re: AAA Texas County Mutual Insurance Company ( 2015 )

ACCEPTED
12-15-00277-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
11/16/2015 5:51:19 PM
Pam Estes
CLERK
Case Number 12-15-___________-CV
IN THE TWELFTH DISTRICT COURT OF APPEALS
FILED IN
12th COURT OF APPEALS
TYLER, TEXAS
at Tyler 11/16/2015 5:51:19 PM
PAM ESTES
__________________________________________________________________
Clerk
In Re AAA Texas County Mutual Insurance Company,
Relator.
__________________________________________________________________
Original Proceeding from Cause Number 2014-1365-A pending in the 188th
Judicial District Court of Gregg County
__________________________________________________________________
RELATOR AAA TEXAS COUNTY MUTUAL INSURANCE COMPANY’S
PETITION FOR WRIT OF MANDAMUS
__________________________________________________________________
WALTERS, BALIDO & CRAIN, L.L.P.
Gregory R. Ave
State Bar Number 01448900
greg.ave@wbclawfirm.com
Meadow Park Tower, Suite 1500
10440 North Central Expressway
Dallas, Texas 75231
Telephone Number (214) 347-8310
Facsimile Number (214) 347-8311
ATTORNEYS FOR RELATOR
AAA TEXAS COUNTY MUTUAL
November 16, 2015 INSURANCE COMPANY
LIST OF PARTIES AND THEIR COUNSEL
Pursuant to Texas Rule of Appellate Procedure 52.3(a), the following
is a complete list of all parties, and the names and addresses of all trial and
appellate counsel:
1. Relator:
AAA Texas County Mutual Insurance Company
2. Trial Counsel for Relator:
Carlos Balido
State Bar No.: 01631230
Walters Balido & Crain, L.L.P.
Meadow Park Tower, Suite 1500
10440 North Central Expressway
Dallas, Texas 75231
Telephone: 214-749-4805
Facsimile: 214-760-1670
Email: carlos.balido@wbclawfirm.com
3. Appellate Counsel for Relator:
Gregory R. Ave
State Bar No.: 01448900
Greg.ave@wbclawfirm.com
Jay R. Harris
State Bar No.: 00793907
Walters, Balido & Crain, L.L.P.
Meadow Park Tower, Suite 1500
10440 North Central Expressway
Dallas, Texas 75231; and
i
4. Respondent:
The Honorable Judge David Brabham
Judge of the 188th Judicial District Court of Gregg County, Texas
Gregg County Courthouse
101 East Methvin, Suite 408
Longview, Texas 75601
Telephone (903) 237-2588
Facsimile (903) 236-8603
5. Real Party in Interest:
Thomas Jackson
6. Trial Counsel for Real Party in Interest:
Justin A. Smith
Glenn A. Perry
Sloan, Bagley, Hatcher & Perry Law Firm
101 East Whaley Street
Longview, Texas 75601
Telephone (903) 757-7000
Facsimile (903) 757-7574
ii
TABLE OF CONTENTS
IDENTITY OF PARTIES & COUNSEL .............................................................................i
TABLE OF CONTENTS............................................................................................... iii
INDEX OF AUTHORITIES ........................................................................................... v
STATEMENT OF THE CASE ..................................................................................... viii
STATEMENT OF JURISDICTION ................................................................................. ix
ISSUES PRESENTED .....................................................................................................x
STATEMENT OF FACTS ............................................................................................... 1
ARGUMENT & AUTHORITIES ................................................................................... 21
I. Standard of Review .................................................................................... 21
II. Mandamus Relief Is Warranted In This Case ......................................... 22
A. The Trial Court Abused Its Discretion in Refusing To Abate
Discovery on Jackson’s Extra-Contractual Claims Because
These Claims Are Not Ripe, Have Not Accrued, and Will
Likely Be Rendered Moot, Unless and Until Jackson Has
Obtained a Final Adjudication of Tortfeasor Tompkin’s
Liability and Damages for which AAA Owes UIM Benefits,
But Then Refuses to Pay. .................................................................... 22
1. Because Jackson has not obtained a final judgment
establishing the liability of, and damages caused by,
Tompkins, AAA has no contractual duty to pay
UIM benefits ........................................................................... 22
iii
2. Allowing discovery on Jackson’s extra-contractual
claims before a determination on Jackson’s UIM
claim is an abuse of discretion. ........................................... 25
B. AAA Has No Clear and Adequate Remedy By Appeal Because
It Will Lose Substantial Rights By Being Required To Conduct
Discovery on Claims Which Have Not Accrued and May Be
Rendered Moot.. .................................................................................. 40
PRAYER ..................................................................................................................... 41
CERTIFICATE OF COMPLIANCE ................................................................................ 43
CERTIFICATE OF SERVICE ........................................................................................ 44
APPENDIX ................................................................................................................. 45
iv
INDEX OF AUTHORITIES
Cases
In re Allstate County Mut. Ins. Co.,
447 S.W.3d 497 (Tex. App.–Houston [1st Dist.] 2014) ................. 24, 38, 39, 40
In re Allstate Indem. Co.,
2003 Tex. App. LEXIS 9245 (Tex. App.–Dallas October 30, 2003)............ ix, 39
In re Allstate Ins. Co., 232 S.W.3d 340 (Tex. App.—Tyler 2007) ...................... 30
In re Am. Nat’l County Mut. Ins. Co.,
384 S.W.3d 429 (Tex. App.–Austin 2012) ........................................................... 40
Blackstone v. Thalman,
949 S.W.2d 470 (Tex. App.—Houston [14th Dist.] 1997, no writ) .................... 3
Brainard v. Trinity Universal Ins. Co., 216 S.W.3d 809 (Tex. 2006) ............passim
F. A. Richard & Assocs. v. Millard,
856 S.W.2d 765 (Tex. App.–Houston [1st Dist.] 1993) ..................................... 37
Figueroa v. Davis,
318 S.W.3d 53 (Tex. App.—Houston [1st Dist.] 2010, no pet.) ........................ 3
Gilbert Tex. Constr., L.P. v. Underwriters at Lloyd’s London,
327 S.W.3d 118 (Tex. 2010) ................................................................................... 24
Legal Sec. Life Ins. Co. v. Ward,
373 S.W.2d 693 (Tex. Civ. App.—Austin 1963, no writ).................................... 3
Liberty Nat’l Fire Ins. Co. v. Akin, 927 S.W.2d 627 (Tex. 1996)........ ix, 32, 33, 38
Mid-Century Ins. Co. v. Lerner,
901 S.W.2d 749 (Tex. App.–Houston [14th Dist.] 1995) ................................... 37
v
In re Miller, 202 S.W.3d 922 (Tex. App.--Tyler 2006) ........................................ 32
Northwestern Nat’l Lloyds Ins. Co. v. Caldwell,
862 S.W.2d 44 (Tex. App.–Houston [14th Dist.]1993) ...................................... 37
In re Progressive County Mut. Ins. Co.,
439 S.W.3d 422 (Tex. App.—Houston [1st Dist.] 2014, no pet.) ..............passim
Progressive County Mut. Ins. Co. v. Boyd, 177 S.W.3d 919 (Tex. 2005)............. 25
In re Prudential Ins. Co. of Am., 148 S.W.3d 124 (Tex. 2004) .......................21, 39
In re State Farm Mut. Auto. Ins. Co.,
395 S.W.3d 229 (Tex. App.—El Paso 2012, no pet.) .......................................... 33
State Farm Mut. Auto. Ins. Co. v. Wilborn,
835 S.W.2d 260 (Tex. App.--Houston [14th Dist.] 1992) ............................33, 37
Texas Farm Bureau Underwriters v. Skeen,
374 S.W.3d 651 (Tex. App.—Tyler 2012, no pet.) .......................................26, 27
Thurmond v. Wieser, 699 S.W.2d 680 (Tex. App—Waco 1985, no writ) ........... 3
In re Trinity Universal Ins. Co., 64 S.W.3d 463 (Tex. App.–Amarillo 2001) .... 32
In re United Fire Lloyds,
327 S.W.3d 250 (Tex. App.–San Antonio 2010) ..................................... ix, 21, 35
U.S. Fire Ins. Co. v. Millard,
847 S.W.2d 668 (Tex. App.--Houston [1st Dist.] 1993) ......................... 22-23, 37
Weir v. Twin City Fire Ins. Co.,
622 F. Supp. 2d 483 (S.D. Tex. 2009) (Harmon, J.) ............................................ 26
Womack v. Berry, 291 S.W.2d 677 (1956) ............................................................. 34
vi
OTHER AUTHORITIES
RESTATEMENT (SECOND) OF CONTRACTS § 36 (1981)............................................. 3
RESTATEMENT (SECOND) OF CONTRACTS § 39(2) ................................................... 3
TEX. GOV’T CODE ANN. § 22.221 ........................................................................... ix
Texas Insurance Code §§ 541.060(a)(2)(A), 542.056, 542.057, and 542.058 ..... 7
Texas Rule of Appellate Procedure 52 ............................................................... ix
Texas Rule of Appellate Procedure 52.3(a) ..........................................................i
Texas Rules of Civil Procedure 194.2(d) and 192.3(a) ..................................... 17
Texas Rules of Evidence 408 ................................................................................ 33
vii
STATEMENT OF THE CASE
Nature Of The Underlying Case:
This original proceeding arises from a lawsuit filed by Plaintiff and
Real Party in Interest Thomas Jackson (“Jackson”) arising from a motor
vehicle accident. [MR 6-8.] Jackson brought suit against AAA to recover
underinsured motorist (“UIM”) benefits based on a motor vehicle accident
involving Jackson and Patricia Tompkins (“Tompkins”) on June 12, 2013.
[Id.] In his second amended petition, Jackson continues to seek to recover
UIM benefits, two purported breach of contract claims, as well as damages
for AAA’s alleged bad faith and statutory violations related to settlement
negotiations and an offer of settlement made by AAA to Jackson to resolve
his UIM claims (and subsequent lawsuit). [MR 8-14.]
Respondent:
The Honorable David Brabham, Judge of the 188th Judicial District
Court of Gregg County, Texas.
Respondent’s Actions from Which Relief Sought:
AAA moved to sever and abate Jackson’s breach of contract claims,
his bad faith and other extra-contractual claims until the preliminary issue
of tort liability and damages are resolved. [MR 66.] The trial court denied
in its entirety AAA’s motion to sever and abate and instead, ordered AAA
to respond to discovery requests which solely pertain to Jackson’s extra-
contractual claims and which do not go to the only issues ripe for
determination: (1) the tort liability of Tompkins; (2) the amount of Jackson’s
actual damages because of the June 12, 2013 accident; and the underinsured
status of Tompkins. [MR 135-37; 138.]
Orders at Issue:
The trial court’s order of November 6, 2015 denying AAA’s motion to
sever and abate [MR 138; see also App. At Tab A] and the November 6, 2015
order compelling AAA to respond to the discovery requests propounded
viii
by Jackson [MR 135-37; see also App. at Tab B].
STATEMENT OF JURISDICTION
This Court possesses jurisdiction to grant mandamus relief from the
trial court’s order denying AAA’s request to sever and abate the extra-
contractual claims and the trial court’s order compelling AAA to respond
to Jackson’s discovery requests pertaining to his bad faith and extra-
contractual claims before the threshold issues of Tompkins’ purported
negligence is judicially determined, before the amount of Jackson’s actual
damages are legally established, and before the underinsured status of
Tompkins is judicially resolved because same constitutes a clear abuse of
discretion which impacts AAA’s right to protect its claim file and avoid the
expense of defending itself against claims which are not ripe, have not
accrued, and will likely be rendered moot, and for which no adequate
remedy exists by ordinary appeal. See TEX. GOV’T CODE ANN. § 22.221; TEX.
R. APP. P. 52.1
1
Liberty National Fire Ins. Co. v. Akin, 927 S.W.2d 627, 628 (Tex. 1996) (sever and abate of
extra-contractual claims from UM claim required where settlement offer has been made
on the disputed UM claim); In re Allstate Indem. Co., 2003 Tex. App. LEXIS 9245 (Tex.
App.–Dallas October 30, 2003, orig. proceeding) (trial court abused its discretion when
it failed to both sever and abate plaintiff’s extra-contractual claims in UM case); In re
Progressive County Mut. Ins. Co., 439 S.W.3d 422, 427 (Tex. App.–Houston [1st Dist.]
2014, orig. proceeding) (insurer had no adequate remedy by appeal where trial court
permitted discovery on extra-contractual claims in UM action because insurer would
“lose substantial rights by being required to prepare for claims that may be rendered
moot and never even accrue”); In re United Fire Lloyds, 327 S.W.3d 250, 256 (Tex. App.–
San Antonio 2010, orig. proceeding) (insurer did not have adequate remedy by appeal
where it would “lose substantial rights by being required to prepare for claims that may
be rendered moot and may have not even yet accrued”).
ix
ISSUES PRESENTED
1. Whether the trial court’s refusal to sever and abate
Jackson’s extra-contractual claims and refusal to
abate discovery on Jackson’s extra-contractual
claims until the conditions precedent (i.e., the
judicial determination as to the liability or fault of
Tompkins in causing the accident with Jackson, the
amount of his actual damages, and a determination
whether Tompkins is underinsured) as to whether
to asserting a valid UIM claim are satisfied is an
abuse of discretion which warrants mandamus
relief because Jackson’s extra-contractual claims are
not ripe, have not accrued, and will likely be
rendered moot, absent (1) a final adjudication of
Tompkins’ liability, (2) Jackson’s actual damages,
(3) Tompkins underinsured status, and (4) only then
when coupled with a refusal by AAA to pay UIM
benefits based on the judicial determinations of (1)-
(3), supra.
2. Whether AAA has an adequate remedy by ordinary
appeal where AAA will lose substantial rights by
being required to conduct discovery on claims
which are not ripe, have not accrued, and will likely
be rendered moot.
x
STATEMENT OF FACTS
On or about June 12, 2013, Jackson was involved in an automobile
accident with another vehicle driven by Tompkins (the “accident”). [MR
7.] After the accident, Jackson submitted claims to AAA for personal injury
protection (“PIP”) benefits which AAA paid (a total of $5,000.00). [MR 1.]
Jackson also made a liability claim against Tompkins which her insurer, for
whatever reason, offered him $30,000.00 to settle fully and finally any and
all claims he had against Tompkins (AAA consented to the settlement).
[Id.] Subsequent to the settlement with Tompkins, Jackson asserted a claim
under the policy for the full amount of UIM limits - $100,000.00 per person
limit. [Id.]
On March 31, 2014, AAA received a demand letter from Jackson and
a packet of information which provided Jackson’s version of events
surrounding the accident and medical documentation. [Id.] On April 28,
2014 AAA offered Jackson $20,000.00 “in an effort to resolve this matter” –
the clear connotation is that AAA made an offer to achieve a final
settlement of a disputed contract claim (i.e., the UIM claim). [Id.]
Importantly, the $20,000.00 offer was to “conclude” Jackson’s UIM claim in
its entirety and to “resolve this matter” all hallmarks of a finite offer to
1
settle and not the offer of a partial payment (as Jackson contends).
Moreover, four days later on May 2, 2014, Jackson made a counteroffer
and, as a matter of law, rejected AAA’s $20,000.00 offer to settle and
conclude in its entirety Jackson’s UIM claim. [MR 2.] This is evidenced
also by the rejection of the counteroffer proposed by Jackson in AAA’s
May, 22, 2014 correspondence, wherein AAA explicitly stated that:
Your letter advises [Jackson] vehemently disagrees
with [AAA’s] valuation; however, you demand
[AAA] tender a check for $20,000.00 UIM.
Furthermore, you advise [Jackson] will not sign a
release, will negotiate the issued check and have the
right to pursue additional amounts for this claim in
the future.
Unfortunately, [AAA is] unable to comply with
your request. Our offer was a compromise to
resolve this matter fully and finally in exchange for
a release. It (the $20,000.00 offer) remains on the
table if your client wishes to accept.
If this offer is not being accepted and considered
full and final we will continue our handling of this
matter per Brainard v. Trinity Universal Ins. Co. case
law.
[MR 4-5.]
As evidenced by the lawsuit, Jackson rejected AAA’s offer of
$20,000.00 to fully and finally settle his UIM claim.
2
Yet now, Jackson contends an oral agreement (since no written
agreement exists) was made between AAA and Jackson that AAA would
pay him the previously offered and rejected $20,000.00 and then litigate
whether Jackson was entitled to recover additional UIM benefits. [MR 9.]
This contention by Jackson is meritless, inane, and borders on being
patently frivolous.2 In fact, as demonstrated supra, nothing could be
further from the truth.
I. THE UIM LAWSUIT
In his second amended petition (i.e., the live pleading), Jackson seeks
to recover UIM benefits under Texas personal automobile policy number
TPA-016443353 issued by AAA to Jackson (the “policy”), breach of contract
2 “A counteroffer constitutes a rejection, not an acceptance, of the original offer.”
Blackstone v. Thalman, 949 S.W.2d 470, 473 (Tex. App.—Houston [14th Dist.] 1997, no
writ). An offeree’s power of acceptance is terminated by the making of a counteroffer,
unless the offeror has manifested a contrary intention or unless the counteroffer
manifests a contrary intention of the offeree. Thurmond v. Wieser, 699 S.W.2d 680, 682
(Tex. App—Waco 1985, no writ); see also RESTATEMENT (SECOND) OF CONTRACTS § 39(2).
Once it has been terminated by the making of a counteroffer, an offeree’s power to
accept the original offer cannot be revived by later accepting the offer. See Legal Sec. Life
Ins. Co. v. Ward, 373 S.W.2d 693, 698 (Tex. Civ. App.—Austin 1963, no writ) (holding
that the rejection of an offer has the effect of terminating it, and it cannot be revived by
later acceptance); see also Figueroa v. Davis, 318 S.W.3d 53, 68-69 (Tex. App.—Houston
[1st Dist.] 2010, no pet.) (stating that, “[u]nder contract principles, once an offer is
rejected, it is terminated, and the rejecting party cannot thereafter accept it”);
RESTATEMENT (SECOND) OF CONTRACTS § 36 (1981) (offeree’s power of acceptance is
terminated by rejection of offer); Id. § 35(2) (1981) (a contract cannot be created by
acceptance of an offer after the power of acceptance has been terminated).
3
for not funding his UIM lawsuit by paying him $20,000.00, breach of
contract for not capitulating to his demands and pay him the per person
$100,000.00 in UIM limits, as well as damages for AAA’s alleged bad faith
and statutory violations related to the handling of his claim for UIM
benefits. [MR 6-14.] In the underlying lawsuit, Jackson’s core factual
allegations exclusively relate to the purported negligent conduct of
Tompkins in causing the accident and Jackson’s alleged damages. [MR 7-
8.] Specifically, Jackson alleges:
E. FACTS
7. This lawsuit results from a collision that
occurred on June 12, 2013, at approximately 8:58
p.m. in Longview, Gregg County, Texas. [Jackson]
was operating his vehicle westbound on Pliler
Precise Road in a safe, reasonable and lawful
manner, when he stopped in obedience to a traffic
control device at the intersection of Judson Road
and Pliler Precise Road. After stopping, and in
obedience to the traffic control device, [Jackson]
proceeded to continue traveling westbound into the
intersection of Pliler Precise Road and Judson Road.
[Tompkins] was traveling northbound on Judson
Road when, with complete disregard for the safety
and welfare of other persons or property, she
disregarded the traffic control device striking the
driver’s side of the vehicle being driven by
[Jackson] and causing the collision made the basis
of this lawsuit.
4
8. When the collision occurred, [Jackson’s]
vehicle was covered by a policy of automobile
insurance in full force and effect, which is the
subject of this lawsuit. The policy of automobile
insurance was issued by [AAA] and included
uninsured/underinsured motorist coverage as
defined under the policy and/or by statute.
9. [Jackson] timely and properly notified [AAA]
of the motor vehicle collision that is the subject of
this suit. [Jackson] has fully complied with all of
the conditions of that insurance policy prior to his
filing suit against [AAA]. All conditions precedent
have been performed or have occurred. Further,
[Jackson] has complied with requests for provision
of information to [AAA].
10. As a result of the collision caused by
[Tompkins], [Jackson] sustained damages that
exceed the amount of available and collectible
liability insurance coverage issued to [Tompkins]
and which covered her negligent actions. [AAA]
refused to consider [Jackson’s] injuries, medical
billing paid or incurred by or on behalf of [Jackson]
and failed, and continues to fail, to fully
compensate [Jackson] for the injuries caused by
[Tompkins], an underinsured motorist, and give
[Jackson] the benefit of the bargain of his
uninsured/underinsured motorist coverage present
in the insurance policy, in violation of Texas law as
described herein below. As a result of their acts
and/or omissions, and unlawful conduct as
described herein below, [AAA] proximately caused
[Jackson] injury.
This is the sum total of the facts which form the basis for Jackson’s
5
purported breach of contract and extra-contractual claims against AAA.
Incredibly and despite the established law in Texas, Jackson asserts
the following causes of actions, with the relevant basis, in part, quoted:
& BREACH OF CONTRACT
[AAA] to date has failed and refused to pay
the money due under the policy, despite
demand.
Specifically, [AAA] has determined that
[Jackson’s] [UIM] claim is worth at least
$55,000.00, as evidenced by its April 28, 2014,
offer to pay $20,000.00 in addition to $5,000.00
previously paid by [AAA] in [PIP] benefits
and $30,000.00 previously paid by
[Tompkins’s] insurer. However, despite
[Jackson’s] demand for payment of this
undisputed portion of his underinsured
motorist coverage, [AAA] has refused to
tender this amount. This failure and refusal
to pay constitutes a breach of contract and
demonstrates bad faith.
& BREACH OF CONTRACT
Further, [AAA’s] failure to properly value and
fully pay [Jackson’s] damages pursuant to its
obligations in the policy at issue likewise
constitutes a breach of contract and
demonstrate bad faith, notwithstanding the
Texas Supreme Court’s holding in Brainard v.
Trinity Univ, Ins. Co., 216 S.W.3d 809 (Tex.
2006).
6
& BREACH OF THE DUTY OF GOOD FAITH AND
FAIR DEALING
Without adequate explanation or justification,
[AAA] breached its duty of good faith and fair
dealing by denying and/or delaying payment
of benefits to [Jackson] in accordance with its
insurance agreement with [Jackson] when it
was reasonably clear that it should pay said
benefits to [Jackson]. Specifically, before the
filing of this suit, [AAA] has determined that
[Jackson’s] [UIM] claim is worth at least
$55,000.00, as evidenced by its April 28, 2014,
offer to pay $20,000.00 in addition to $5,000.00
previously paid by [AAA] in [PIP] benefits
and $30,000.00 previously paid by
[Tompkins’s] insurer. However, despite
[Jackson’s] demand for [AAA’s] payment of
$20,000.00 – the undisputed portion of the
underinsured motorist coverage – [AAA] has
refused and continues to refuse to tender this
amount. Accordingly, [AAA] is in violation
of Texas Insurance Code, Chapter 541, et seq.
Further, [AAA] has engaged in unfair claim
settlement practices in violation of Texas
Insurance Code §§ 541.060(a)(2)(A), 542.056,
542.057, and 542.058.
& VIOLATIONS OF THE DTPA AND THE TEXAS
INSURANCE CODE § 541.060(A)(2)(A)
Because [AAA] violated Texas Insurance
Code § 541.060(a)(2)(A) (failing to attempt in
good faith to effectuate a prompt, fair, and
equitable settlement of a claim with respect to
which its liability has become reasonably
clear), [AAA] is deemed to have violated the
7
Texas Deceptive Trade Practices - Consumer
Protection Act [and the Texas Insurance Code]
...
[MR 8-14.]
Jackson goes on to include the cause of action du jour – a declaratory
judgment which mirrors his claim for UIM benefits with a claim for
attorneys’ fees tacked on, and claims for knowing violations, and treble
damages. [MR 10-11.]
As is apparent, Jackson intends to offensively use the pre-litigation
offer of settlement by AAA as the basis to support his claim for breach of
contract, for the supposed breach of the duty of good faith and fair dealing,
and for the claimed violation of the DTPA and the Texas Insurance Code.
Perhaps even more egregious is that Jackson intends to make the $20,000.00
pre-litigation settlement offer as the centerpiece of his argument to the jury.
That is, it is clearly evident that Jackson will contend that the value of his
UIM claim, at a minimum, is at least $55,000.00 based on the $20,000.00
settlement offer made by AAA (when combined with the PIP and liability
payments). Additionally, Jackson is going to make the settlement offer the
focal point by arguing to the jury that it represents (1) an admission by
AAA he is entitled to UIM benefits and (2) then to the same jury in the
8
bifurcated trial portion that AAA acted in bad faith in not paying him the
per person limit.
In fact, Jackson, albeit delusional and incorrect, admits as to such in
his response to AAA’s motion to sever and abate when he describes the
basis for his two breach of contract claims:
There are two breach of contract claims in this suit.
The first breach of contract claim arises because this
case, unlike those cited by [AAA], involves a carrier
who, after an apparent evaluation of coverage and
the claim, (1) determined that the insured suffered a
covered loss and was entitled to UM/UIM benefits
in the sum of $20,000.00 and (2) refused to tender
that sum upon [Jackson’s] request. It is [AAA’s]
failure to tender that sum, not the amount or
adequacy of that sum, that forms the basis for one
of [Jackson’s] breach of contract claims and the
entire basis for his bad faith claims. See [Jackson’s]
Second Am. Pet., pg. 3—5.
* * *
[MR 131.] (emphasis added).
It is impossible for Jackson to satisfy his burden of proof without
utilizing, as most likely “Exhibit A,” the settlement offer. As discussed
further infra, this Court has held that a trial court must sever and abate all
extra-contractual claims under precisely this situation.
9
II. THE MOTION TO SEVER AND ABATE
On January 19, 2015, AAA filed its motion to sever and abate
Jackson’s extra-contractual claims (which necessarily includes the
settlement-breach of contract claim) pending trial on the threshold
requirements that Jackson obtain a judicial finding establishing the liability
or legal fault of Tompkins in causing the accident, the actual amount of
Jackson’s damages, and the underinsured status of Tompkins. [MR 66-72.]
On the day before the hearing, Jackson filed his response. [MR 128-34.]
The trial court held a hearing on the motion to sever and abate on
November 6, 2015 and signed an order the same day denying AAA’s
request to sever and abate the extra-contractual claims. [MR 138.]
At prior hearing on October 1, 2015 the parties presented to the trial
court their arguments as to why discovery as to the extra-contractual
claims be stayed (by AAA) and why it should not (by Jackson). Yet, the
court did not rule until after the severance and abate hearing where the
trial court then entered an order retroactively dating back to October 1,
2015 directing AAA to respond to the extra-contractual discovery requests
within 45 days – which became ten days from the date of the hearing. [MR
135-37.]
10
In ordering AAA to respond, the trial court reviewed the following
discovery requests which clearly go beyond the scope of the evidence to
legally establish (1) whether or to what extent Tompkins was negligent or
at fault in causing the accident, (2) the amount Jackson’s actual damages
solely because of the June 12, 2013 accident, and (3) whether Tompkins is
actually underinsured – and which the trial court ordered AAA to answer
by November 16, 2015:
Request for Documents:
1. The entire claims file and/or adjuster logs
including, but not limited to, photographs,
statements, notes, memoranda, tables, computer-
generated information and other written documents
contained therein, that were generated in
connection with the injury to [Jackson] that forms
the basis of this lawsuit.
* * *
6. All correspondence, memoranda, reports, e-
mails, facsimile transmissions, and all other
documents evidencing communications regarding
the insurance claim(s) or any aspect of said claim(s)
that is the subject of this litigation between [AAA]
and its (a) adjusters, (b) employees, (c) officers, (d)
agents, € representatives, (f) independent adjusters
(other than those retained for the purpose of
litigation), and/or (g) independent adjusting firms
(other than those retained for the purpose of
litigation).
11
7. All documents regarding every telephone
conversation with or regarding [Jackson].
8. All documents regarding the amount(s) set
aside and/or placed in reserve regarding
[Jackson’s] claim for [UIM] coverage benefits
herein.
* * *
11. If already produced herein, a complete copy
of every primary, umbrella, and excess insurance
policy or agreement, including all declarations
page(s), endorsements, amendments, riders, and
attachments in effect when the subject collision
occurred and providing coverage to [Jackson] for
injuries suffered in the subject collision.
* * *
13. All non-waiver agreements, reservation of
rights letters, and other documents or
communications regarding any contractual
obligation owed to you by [Jackson] or condition
precedent to recovery with which [Jackson] must
comply.
14. All documents relating to any initial
determination, temporary determination, tentative
determination, or final determination regarding
whether [Jackson’s] claim herein is payable or not
payable.
* * *
18. All documents, records, reports, notations,
12
and/or memoranda regarding [Jackson] from
persons and/or entities that compile information
regarding bodily injury claims, health insurance
claims, liability/property/casualty insurance
claims, worker's compensation claims, and other
insurance claims, including but not limited to the
Insurance Services Office (“ISO”), Southwest Index
Bureau, and all similar persons or entities.
19. All peer reviews, audits, medical summaries,
memoranda, notes, letters, and other documents
relating to or compiled from the medical records
that [Jackson] has submitted for payment pursuant
to the policy at issue herein and/or injuries that
[Jackson] claims were caused by the collision made
the basis of this lawsuit.
20. All liability work-ups or reports relating to
[Jackson’s] claim for [UIM] coverage benefits.
21. All documents relating to [AAA’s] use, if any,
of computer software programs in reviewing,
analyzing, and/or evaluating claims of injury in
motor vehicle collisions during 2013 and 2014.
22. All documents relating to [AAA’s] use, if any,
of computer software programs in reviewing,
analyzing, and/or evaluating [Jackson’s] claims of
injury in the motor vehicle collision that forms the
basis of this lawsuit.
23. All documents containing [AAA’s] policies,
procedures, processes, and/or rules used by [AAA]
employees to assist in their evaluation of
uninsured/underinsured motorist claims.
13
24. All documents containing [AAA’s] policies,
procedures, processes, and/or rules used by [AAA]
employees to assist in their evaluation of
automobile collision bodily injury claims.
* * *
26. All reports, memoranda, and other
documents related to [AAA’s] evaluation of any
claim for benefits made by [Jackson] other than the
claim at issue herein.
27. All documents relating to every initial
determination, temporary determination, tentative
determination, or final determination regarding
whether any of [Jackson’s] claims other than that at
issue herein was payable or not payable.
28. All documents regarding and/or discussing
[AAA’s] refusal to pay the $20,000.00 that you
offered on April 28, 2014.
29. All documents reflecting, regarding, and/or
discussing premium payments made by [Jackson]
for the automobile insurance policy in effect when
the collision that is the subject of this lawsuit
occurred.
30. All documents necessary to determine the
name, address, telephone number, immediate
supervisor, and current employer of all of [AAA’s]
adjusters, employees, agents, and/or
representatives that have reviewed [Jackson’s]
claim file from a claims handling or claims review
standpoint.
14
31. All documents and/or materials pertaining to
any negotiations for settlement or offers of
settlement that were compiled or created prior to
the time of the filing of this lawsuit.
32. All documents, reports, or investigations
relied upon by [AAA] in denying or delaying
payment of any benefits to [Jackson] related to the
claim that is the subject of this lawsuit.
33. All documents regarding any contract that
[AAA has] with any independent adjuster who
performed any service on your behalf related to
[Jackson] claim herein.
34. All documents described or utilized in
responding to [Jackson’s] Interrogatories, Requests
for Production, and Requests for Admission.
* * *
Interrogatories:
3. To the extent not already produced herein,
describe each separate file containing records,
documents, and/or information relating to
[Jackson] and/or [Jackson’s] claims, including in
[AAA’s] description for each file, the file’s name,
the file number, its descriptive title assigned to it in
the ordinary course of your business, each
custodian of the file, the file’s contents, and its
current location.
* * *
5. Identify by name, employer (if different from
[AAA], business address, job title, and telephone
15
number of each individual who will be [AAA’s] in-
court representative.
6. Identify by name, employer (if different from
[AAA], business address, job title, and telephone
number and role of each of [AAA’s] employees,
agents, representatives, adjusters, independent
adjusters, independent adjusting firms, consultants,
and any entity or individual acting under any oral
or written agreement, who performed any claims
work, participated in the evaluation of [Jackson’s]
claim, and/or claims services of any type or nature
with respect to the insurance claims involved in this
litigation.
7. Identify every medical doctor, physician,
osteopath, physician’s assistant, and/or nurse who
has reviewed medical records of [Jackson] in
connection with the claim for [UIM] benefits that
are the subject of this lawsuit.
8. Identify each of your employees who played
any role in evaluating [Jackson’s] claim, authorized
any proposed payment to be made to [Jackson],
and/or made decisions regarding any adjuster’s
authority to pay or deny [Jackson’s] claim relating
to [the UIM] coverage purchased by [Jackson].
9. lf [AAA has] information that has not already
been produced herein regarding any other claims
for personal injury of any type that were made or
may have been made by [Jackson] or by [Tompkins]
since the collision made the basis of this suit, please
state all information you have regarding each such
claim, specifically including but not limited to:
a. The date of the claim;
16
b. The type of the claim;
c. The name of the person making the claim;
d. The other parties involved in the claim;
e. The injuries claimed in the incident made the
basis of this claim
f. The identity of all medical providers involved
in treating any injury claimed in the incident
made the basis of the claim
g. Each insurer and claim number assigned to
the claim; and
h. The disposition of the claim.
* * *
11. Pursuant to Texas Rules of Civil Procedure
194.2(d) and 192.3(a), if [AAA] contends that [AAA
is] entitled to a credit or offset against judgment,
state for each such credit/offset:
a. The dollar amount;
b. Each category(ies) of damages to which
[AAA] claims the credit/offset applies; and
c. How [AAA] arrived at and/or calculated the
dollar amount of the credit/offset.
* * *
14. lf not already contained in documents
produced herein, state all procedures followed and
each criteria utilized by [AAA] in its investigation
and evaluation of [Jackson’s] claim.
15. List, identify, and describe all documents not
already produced herein that support [AAA’s]
contention, if any, that:
a. [Jackson] failed to meet or perform
17
condition(s) precedent to his bringing this
lawsuit;
b. [Jackson] failed to comply with a te1m or
condition of the insurance agreement that is
the subject of this lawsuit; and/or
c. [Jackson’s] claim is excluded from [UIM]
coverage pursuant to a term or condition of
the insurance agreement that is the subject of
this lawsuit.
16. State every reason for your denial of
[Jackson’s] [UIM] claim in excess of your April 28,
2014, offer to pay $20,000.00 (in addition to
$5,000.00 in previously paid personal injury
protection benefits and $30,000.00 previously paid
by [Tompkins’] insurance carrier).
17. If [AAA] used any computer software
program to assist in the evaluation of [Jackson’s]
claim for [UIM] benefits arising from bodily injury,
state for each program:
a. The name of the program used;
b. The specific data utilized by the program in
evaluating [Jackson’s] claims;
c. All data fields that the program deems
relevant to evaluating injury claims
d. The identity of each person who input data
regarding [Jackson] into the program;
e. The means by which the results of the
program’s analysis are presented to the
program user and/or claims adjuster(s);
f. The identity of each person who received
results regarding [Jackson’s] claim; and
g. The methods by which results of the
program’s analysis are distributed to each end
user of the information other than the
18
program user and claims adjuster(s).
18. List all manuals, instructions, directions, and
materials providing guidance regarding the use of
each computer software program identified in the
foregoing interrogatory.
19. State every reason for [AAA’s] refusal to pay
the $20,000.00 that [AAA] offered (in addition to
$5,000.00 in previously paid personal injury
protection benefits and $30,000.00 previously paid
by [Tompkins’] insurance carrier) through Fredrick
M. Armour, your Claims Service Representative, on
April 28, 2014.
20. lf [AAA] contends that [Jackson] is obligated
to provide you with a release in exchange for the
payment of benefits afforded by the [UIM] coverage
contained in the policy at issue herein, identify all
policy provisions and other documents on which
[AAA] base such contention.
* * *
Request For Admissions:
14. [Admit or Deny that] [b]ased upon [AAA’s]
investigation(s) and/or evaluation(s) of [Jackson’s]
[UIM] claim, [AAA has] determined that [Jackson]
has sustained damage in excess of the sum of (1)
[Jackson’s] $5,000.00 personal injury protection
coverage, and (2) [Tompkins’] $30,000.00 limit of
liability insurance.
* * *
17. [Admit or Deny that] [AAA has] failed to pay
19
any portion of the $20,000.00 that you offered
[Jackson] on April 28, 2014.
18. [Admit or Deny that] [Jackson] has complied
with all conditions precedent to recovering from the
[UIM] coverage contained in [AAA’s] policy
number TPA-016443353
[MR 17-65.]
Relevant to this petition for writ of mandamus is that the trial court
itself deemed request for production of document numbers 1, 6, 8, 14, 19,
20, 21, 22, 23, 24, 26, 27, 28, 30, 31, 32, 33; and 34, interrogatories 3, 6, 8, 14,
16, 17, 18, and 19, and request for admission number 17 as “related to
[Jackson’s] extra-contractual claims.” [MR 135-37.] In the response to
Jackson’s motion to compel, AAA pointed out specific instances and the
reason why the answering of the above discovery requests were
prejudicial, went beyond the scope of the trial where Jackson would be
required to legally establish the liability of fault of Tompkins, Jackson’s
actual damages, and that Tompkins is in fact underinsured, as well as how
such requests were inappropriate until such time as Jackson demonstrates
he is legally entitled to recover UIM benefits. However, the trial court
denied the request to sever and abate, ordered AAA to answer all of the
above discovery requests, and indicated the trial court would bifurcate the
20
trial of Jackson’s extra-contractual claims. [MR 135-37; 138.]
Due to the relatively short time period to respond to the discovery
requests (10 days from the date of the hearing), AAA filed this original
proceeding requesting this Court stay the trial court’s order compelling
AAA to answer the discovery requests, and to instruct the trial court to
both sever and abate Jackson’s extra-contractual claims.
ARGUMENT & AUTHORITIES
I. STANDARD OF REVIEW
Mandamus will issue to correct a clear abuse of discretion for which
the relator has no adequate remedy at law. In re Prudential Ins. Co. of Am.,
148 S.W.3d 124, 135–36 (Tex. 2004, orig. proceeding). A trial court has no
discretion in determining what the law is or in applying the law to the
facts, and a clear failure by the trial court to analyze or apply the law
correctly constitutes an abuse of discretion. In re United Fire, supra, 327
S.W.3d at 253. Mandamus relief is justified when parties stand to lose
substantial rights. Id. Mandamus relief is also appropriate to “spare
private parties and the public the time and money utterly wasted enduring
eventual reversal of improperly conducted proceedings.” In re Prudential,
supra, 148 S.W.3d at 136.
21
II. MANDAMUS RELIEF IS WARRANTED IN THIS CASE
Mandamus relief is warranted in this case because the record
establishes (a) the trial court abused its discretion when it refused to abate
discovery on Jackson’s extra-contractual claims until the preliminary issues
of tort liability and damage is resolved, and (b) AAA has no clear and
adequate remedy at law. See Id. at 135–36.
A. The Trial Court Abused Its Discretion in Refusing To Sever and
Abate Jackson’s Extra-Contractual Claims and When It Failed To
Abate Discovery on Jackson’s Extra-Contractual Claims Because
These Claims Are Not Ripe, Have Not Accrued, and Will Likely Be
Rendered Moot, Unless and Until Jackson Has Obtained a Final
Adjudication of Tompkins’ Liability, Jackson’s Actual Damages, and
the Underinsured Status of Tompkins for which AAA Owes UIM
Benefits, But Then Refuses to Pay.
1. Because Jackson has not satisfied the conditions
precedent to assert a valid UIM claims and has not
obtained a final judgment establishing the liability or
fault of Tompkins in causing the accident with Jackson,
the amount of his actual damages, and a determination
whether Tompkins is underinsured, AAA has no
contractual duty to pay UIM benefits.
UIM claims and extra-contractual claims are by their very nature
independent, and Texas courts have recognized them as “separate and
distinct causes of action which might each constitute a complete lawsuit
within itself.” See United States Fire Ins. Co. v. Millard, 847 S.W.2d 668, 672
22
(Tex. App.—Houston [1st Dist.] 1993, orig. proceeding). In the context of
UIM claims, “the insurer is under no contractual duty to pay benefits until
the insured obtains a judgment establishing the liability and underinsured
status of the other motorist.” Brainard v. Trinity Universal Ins. Co., 216
S.W.3d 809, 818 (Tex. 2006) (citing Henson v. State Farm Bureau Cas. Ins. Co.,
17 S.W.3d 652, 653-54 (Tex. 2000)).
In Brainard, the Texas Supreme Court explained the unique nature of
a UIM case as follows:
The UIM contract is unique because, according to
its terms, benefits are conditioned upon the
insured’s legal entitlement to receive damages from
a third party. Unlike many first-party insurance
contracts, in which the policy alone dictates
coverage, UIM insurance utilizes tort law to
determine coverage. Consequently, the insurer’s
contractual obligation to pay benefits does not arise
until liability and damages are determined.
Brainard, 216 S.W.3d at 818
As a result, Jackson must succeed in establishing he is legally entitled
to recover UIM benefits under the policy, and then demonstrate AAA
refused to subsequently pay him those UIM benefits, before any extra-
contractual claims could ever accrue or become ripe for determination. To
succeed on his UIM claim, Jackson must first establish that UIM coverage
23
for his injuries existed at the time of the accident. See Gilbert Tex. Constr.,
L.P. v. Underwriters at Lloyd’s London, 327 S.W.3d 118, 124 (Tex. 2010) (“the
insured has the burden of establishing coverage under the terms of the
policy.”); In re Allstate County Mut. Ins. Co., 447 S.W.3d 497 (Tex. App.–
Houston [1st Dist.] 2014, no pet.) (in order “[t]o prevail on these [extra-
contractual] claims, the [plaintiffs] must first establish that Allstate is liable
under the insurance contract”).
To meet his initial burden, Jackson must first satisfy the conditions
precedent to recover on a UIM claim, which requires Jackson obtain a
judicial finding establishing the liability or legal fault of Tompkins in
causing the accident, the actual amount of Jackson’s damages, and the
underinsured status of Tompkins. In re Progressive County Mut. Ins. Co., 439
S.W.3d 422, 427 (Tex. App.–Houston [1st Dist.] 2014, no pet.). “Neither
requesting UIM benefits nor filing suit against the insurer triggers a
contractual duty to pay.” Id. Accordingly, unless and until Jackson obtains
a final judgment establishing Tompkins’ liability, Jackson’s actual damages
because of the June 12, 2013 accident, that Tompkins is actually
underinsured – that is, his actual damages exceed the total limit of liability
available to Tompkins – as well as that his actual damages exceed the
24
$5,000.00 in PIP benefits and $30,000.00 in liability limits previously paid to
him, AAA has no contractual or legal obligation to pay UIM benefits to
Jackson.
2. Allowing discovery on Jackson’s extra-contractual claims
before a determination on Jackson’s UIM claim is an
abuse of discretion.
Absent proof of an actual breach of contract, AAA should not be
required to provide discovery related to Jackson’s extra-contractual claims
because it is wholly irrelevant, overly broad, and prejudicial. See In
Progressive, supra, 439 S.W.3d at 427 (severance and abatement of extra-
contractual claims was necessary to avoid prejudice because discovery
relating to extra-contractual claims is irrelevant to claim for UM benefits
and beyond the underlying tort claim – i.e., far broader than car accident
claim that must first be resolved).
Again, in order to even potentially have – let alone actually prevail on -
- his extra-contractual claims, Jackson must first demonstrate AAA is
contractually obligated to pay his UIM claim. See Progressive County Mut.
Ins. Co. v. Boyd, 177 S.W.3d 919, 922 (Tex. 2005) (bad faith claims are
generally negated by a lack of coverage). Thus, AAA cannot be liable on
any extra-contractual claim or even for breach of contract until Jackson
25
establishes that AAA has failed or refused to pay his UIM claim
subsequent to Jackson obtaining and presenting to AAA a final
adjudication establishing (1) Tompkins’ liability, (2) Jackson’s actual
damages because of the June 12, 2013 accident, and (3) that Tompkins is
actually underinsured. Prior to this occurring, all the time, effort, money,
and judicial resources spent conducting discovery on those claims will
have been for naught.
If there is no contractual duty to pay, [the insurer]
cannot be in “bad faith,” under common law or
statute, for not paying. [The insurer] cannot be
guilty of not performing a proper investigation of
his UIM claim because it is the trial of the UIM
claim, at which it will be determined who was at
fault and the amount of damages, that constitutes
the investigation.
Weir v. Twin City Fire Ins. Co., 622 F. Supp. 2d 483, 486 (S.D. Tex. 2009).
It is for this reason that several courts of appeals, including opinions
from this Court, require the severance and abatement of extra-contractual
claims (thereby precluding discovery on such claims), in the UIM context
when a settlement offer has been made, such as the matter sub judice. For
instance, in Texas Farm Bureau Underwriters v. Skeen, 374 S.W.3d 651 (Tex.
App.—Tyler 2012, no pet.), this Court, although not a UIM case, under very
26
similar facts held that “all of the facts and circumstances of the case
unquestionably require a [severance] to prevent manifest injustice, there is
no fact or circumstance supporting or tending to support a contrary
conclusion, and the legal rights of the parties will not be prejudiced thereby
. . . “ Skeen, 374 S.W.3d at 657 (internal citations omitted).
In Skeen, Terry Graham (“Graham”) shot and killed Hiram Joshua
Chambers (“Hiram”). Id. at 654. Amanda Chambers, Hiram’s ex-wife,
sued Graham as next friend of Hiram’s two children. Id. Graham
requested a defense from Farm Bureau, but Farm Bureau denied Graham’s
request. Id.
Graham paid his attorneys approximately $130,000 to defend him
against Chambers’ suit and after its conclusion, brought a breach of
contract claim against Farm Bureau seeking reimbursement of the money
he paid to his attorneys, and asserting extra-contractual claims for breach
of Farm Bureau’s common law and statutory duty of good faith and fair
dealing. Id. After dealing with competing motions for summary judgment,
the trial court turned to Farm Bureau’s motion to sever and abate. Id. Just
as here, Farm Bureau contended that, as it had made an offer of settlement
$15,000.00) to Graham, without a severance, it would be prejudiced by
27
evidence of that settlement offer being presented during the breach of
contract portion of the trial. Id.
Farm Bureau also contended that the extra-contractual claims should
be abated until final resolution of Graham’s contractual claim because
information which would be privileged from discovery on the contractual
claim is not privileged and would be subject to discovery on the extra-
contractual claims. Id. Graham responded that the extra-contractual
claims need not be severed because the trial court had granted Graham’s
motion for partial summary judgment on his contractual claim, meaning
that the only remaining issue was the amount of damages to be awarded
by the jury on his breach of contract claim. Id. Alternatively, Graham
argued that bifurcating the trial would prevent the settlement offer from be
admitted during the breach of contract phase of the trial. Id. at 654-55. The
trial court denied Farm Bureau’s motion. Id. Farm Bureau filed a petition
for writ of mandamus and a motion for emergency relief. Id. at 655.
After discussing the availability of a mandamus under the
circumstances, this Court looked to whether the trial court abused its
discretion when it refused to sever Graham’s extra-contractual claims,
finding that:
28
there is no room for the exercise of discretion
“[w]hen all of the facts and circumstances of the
case unquestionably require a separate trial to
prevent manifest injustice, there is no fact or
circumstance supporting or tending to support a
contrary conclusion, and the legal rights of the
parties will not be prejudiced thereby. . . .” Under
these circumstances, the refusal to order a severance
constitutes a violation of a plain legal duty, even
though it is often termed a clear abuse of discretion.
Id. at 656 (internal citations omitted).
Moreover, this Court noted that it has on previous occasions held
that where an insurer has made an offer to settle, the extra-contractual
claims must be severed from the contractual claims. Id. at 657. Keeping
this proposition in mind, this Court held that as Farm Bureau had made an
offer to settle, it would be unfairly prejudiced by the admission of its
settlement offer in the trial of the breach of contract claim. Id. Further, this
Court went on to hold that the extra-contractual claims must also be abated
because:
in conducting discovery on the extra-contractual
claims in this case, Graham would seek information
regarding Farm Bureau’s handling of the
underlying claim made the basis of the breach of
contract. This information is relevant and
discoverable on the extra-contractual claims, but is
privileged and protected from discovery when
focusing only on the breach of contract claim. Thus,
29
under the facts presented here, we hold that Farm
Bureau has also shown that the trial court abused its
discretion in denying its motion to abate.
Id. at 658 (internal citations omitted).
Similarly, this Court in In re Allstate Ins. Co., 232 S.W.3d 340 (Tex.
App.—Tyler 2007, orig. proceeding), held that severance and abatement
was necessary where an insurer made an offer to settle. Relevant to this
matter, the Court likewise held that abatement of the extra-contractual
claims was required, explaining that:
as in most cases involving severance of contractual
and extra-contractual claims, if the extra-contractual
claims are not abated, both parties will incur
unnecessary discovery expenses if the Nerrens’s
breach of contract claim is decided in Allstate’s
favor. We have previously held that these factors,
standing alone, do not necessarily require
abatement. But two additional factors are present
here. First, Allstate argues that abatement is
necessary to prevent the premature disclosure of
privileged information. Specifically, Allstate
contends that in conducting discovery on the extra-
contractual claims, the Nerrens will seek
information regarding Allstate’s handling of claims
that is relevant and discoverable on the extra-
contractual claims, but is privileged and protected
from discovery when focusing only on the breach of
contract claim.
In re Allstate Ins. Co., 232 S.W.3d at 344 (internal citations omitted).
30
Just as in Skeen and In re Allstate, supra, AAA made an offer of
settlement on a disputed contract claim to Jackson. [MR 1; 4-5.]
Furthermore, Jackson has made it abundantly clear that he intends to make
the offer of settlement by AAA the focal point and key piece of evidence for
purposes of proving up his breach of contract claim as described in his
response to AAA’s motion to sever and abate [MR 131], and to prove up
his purported extra-contractual claims [Id.]. It is also true the concerns
which led this Court to require the trial court to sever and abate the extra-
contractual claims in the cases discussed above are present here – that is,
severance and abatement is necessary as Jackson seeks to discover
information regarding AAA’s handling of claims which may be relevant
and discoverable on the extra-contractual claims, but is privileged and
protected from discovery as to the portion of the trial focusing on Jackson
establishing he is legally entitled to recover UIM benefits. [MR 17-65.]
Lastly, bifurcation will not prevent Jackson from attempting to offensively
use the settlement offer during the trial on his claimed breach of contract
cause of action and which is where he must demonstrate all conditions
precedent to asserting a valid UIM claim have been legally established.
There is simply no way to avoid prejudicing AAA’s rights in the absence of
31
a severance and abatement of the extra-contractual claims and his claim for
breach of contract based on the settlement offer.
It is also true that the Texas Supreme Court in Akin noted that under
Texas jurisprudence a trial court should typically sever and abate extra-
contractual claims in the UIM context when a settlement offer on the
disputed UIM claim has been made by the insurer. Akin, supra, 927 S.W.2d
at 628; see also In re Miller, 202 S.W.3d 922, 925-26 (Tex. App.–Tyler 2006,
orig. proceeding); In re Trinity Universal Ins. Co., 64 S.W.3d 463, 468 (Tex.
App.–Amarillo 2001, orig. proceeding).
Under virtually identical circumstances, the El Paso Court of
Appeals, citing Akin, described the state of Texas jurisprudence as
requiring severance and abatement when an insurer has extended an offer
to settle a claim under a contract:
A trial court abuses its discretion if it fails to order a
severance “[w]hen all of the facts and circumstances
of the case unquestionably require a separate trial to
prevent manifest injustice, and there is no fact or
circumstance supporting or tending to support a
contrary conclusion, and the legal rights of the
parties will not be prejudiced thereby, there is no
room for the exercise of discretion.” Prejudice is not
presumed simply because contract claims and extra-
contractual claims are joined in the same action;
accordingly, severance is not always mandatory.
32
However, when an insurer moves to sever an
insured’s extra-contractual claims from a contract
claim following its offer to settle the insured’s entire
contract claim, the trial court must sever the
insured’s extra-contractual claims from the contract
claim because evidence of a settlement offer creates
prejudice.
In re State Farm Mut. Auto. Ins. Co., 395 S.W.3d 229, 234 (Tex. App.—El Paso
2012, orig. proceeding) (internal citations omitted).
The court of appeals explained the reason severance and abatement is
required this way:
Absent severance, an insurer is presented with a
“Catch-22” in that its decision to admit or exclude
evidence of a settlement offer jeopardizes the
successful defense of the other claim. For instance,
in defending against a contract claim, the insurer
will insist on exercising its right to exclude evidence
of a settlement offer to negate liability. See Akin, 927
S.W.2d at 630; see also TEX. R. EVID. 408. Conversely,
in defending against extra-contractual claims, an
insurer will insist on exercising its right to admit
evidence of a settlement offer to negate liability.
Akin, 927 S.W.2d at 630. Thus, by having to defend
against these two types of claims simultaneously
and before the same jury absent severance, an
insurer is prejudiced to such an extent that a fair
trial is unlikely. Akin, 927 S.W.2d at 630. Under
such a scenario, the trial court has no choice but to
sever in order to protect the fairness of the
proceedings and the interests of the parties. See
State Farm Mut. Auto. Ins. Co. v. Wilborn, 835 S.W.2d
260, 262 (Tex.App.--Houston [14th Dist.] 1992, orig.
33
proceeding).
Id. at 234.
A recent opinion from the Houston Court of Appeals specifically
addressed the prejudice involved in allowing discovery on extra-
contractual claims to continue prior to a determination on an UM claim.
See In re Progressive, supra, 439 S.W.3d 422. There, an insured filed suit for
UM benefits, as well as seeking damages for bad faith and statutory
violations related to the failure to pay those benefits. Id. The insured
served the carrier with a number of discovery requests, including all
documents related to lawsuits and claims against the carrier regarding the
denial of UM claims for over ten years. Id. at 427.
In response to the insurer’s motion to sever the UM claim from the
extra-contractual claims, the trial court judge signed an order allowing
discovery to move forward on all claims, and deferring the other issues
covered by the motion until the pretrial hearing. Id. at 424. The court of
appeals concluded severance and abatement of the extra-contractual claims
was required in order to avoid prejudice to the insurer. Id. at 427. (citing
Womack v. Berry, 291 S.W.2d 677, 682–83 (Tex. 1956)). The Progressive court
went on to state:
34
The trial court’s abatement of any decision on
severance until the eve of trial requires the parties
to engage in discovery on the extra-contractual
claims and prepare for a trial on these claims, even
though extra-contractual liability could only
accrue if Progressive is found liable on the contract.
Accordingly, the trial court’s decision to postpone
severance, unless writ is granted, will require
Progressive to expend resources answering
discovery that is far broader than the car accident
claim that must be resolved.
Id. at 427 (emphasis added).
Similarly, the trial court’s order – made the subject of this mandamus
– denying the severance and abatement, ordering bifurcation, and
compelling AAA to respond to Jackson’s extra-contractual claims subjects
AAA to irrelevant, overly broad, and prejudicial discovery.
Other recent opinions confirm the trial court’s refusal to sever and
abate the extra-contractual claims and to abate the discovery on Jackson’s
extra-contractual claims is an abuse of discretion. In In re United Fire Lloyds,
the insured filed suit for UIM benefits under his employer’s insurance
policy, as well as damages for bad faith and statutory violations related to
the denial of those benefits. United Fire, supra, 327 S.W.3d a 252. After the
insurer moved to sever and abate the extra-contractual and bad faith
claims, the insured filed a motion to bifurcate these claims as an alternative
35
to severance and abatement, arguing “a severance would be judicially
wasteful” and would prejudice the insured. Id. at 253. In reviewing the
trial court’s decision to bifurcate (and deny severance and abatement) the
San Antonio Court of Appeals discussed the unique nature of a UIM claim
in that a UIM insurer “has no contractual duty to pay benefits until the
insured obtains a judgment establishing the liability and underinsured
status of the other motorist.” Id. at 255.
“As a result,” the court continued, “a determination of [the insured’s]
UIM claim may negate his bad faith claims.” Id. at 256. Thus, the court
held, the trial court had abused its discretion when it refused to sever and
abate the insured’s extra-contractual claims because an insurer should not
be required to prepare to litigate claims that could be rendered moot by a
determination on the UIM claim:
[W]e are constrained by the clear holding in
Brainard, and hold that [the insurer] is under no
contractual duty to pay UIM benefits until [the
insured] establishes the liability and underinsured
status of the other motorist. Therefore, [the insurer]
should not be required to put forth the effort and
expense of conducting discovery, preparing for
trial, and conducting voir dire on bad faith claims
that could be rendered moot by the portion of the
trial relating to UIM benefits. To require such
would not do justice, avoid prejudice, and further
36
convenience. Under these circumstances, we
conclude the trial court abused its discretion in
bifurcating the case instead of severing and abating
the UIM claim from the bad faith claims.
Id. (internal citations omitted) (emphasis added).
It appears no Texas intermediate court has held severance and
abatement is not necessary where the insurer has made an offer to settle. In
fact, every court of appeals to address the issue has held that when the
insurer has made an offer to settle, a severance and abatement of the
underlying tort aspect of the claim is required to avoid undue prejudice to
the insurer in its defense of the underlying dispute. Mid-Century Ins. Co. v.
Lerner, 901 S.W.2d 749, 752-53 (Tex. App.–Houston [14th Dist.] 1995, orig.
proceeding); Northwestern Nat’l Lloyds Ins. Co. v. Caldwell, 862 S.W.2d 44, 46-
47 (Tex. App.–Houston [14th Dist.] 1993, orig. proceeding); F. A. Richard &
Assocs. v. Millard, 856 S.W.2d 765, 767 (Tex. App.–Houston [1st Dist.] 1993,
orig. proceeding); United States Fire Ins. Co. v. Millard, 847 S.W.2d 668, 673
(Tex. App.–Houston [1st Dist.] 1993, orig. proceeding); State Farm Mut.
Auto. Ins. Co. v. Wilborn, 835 S.W.2d 260, 262 (Tex. App.–Houston [14th
Dist.] 1992, orig. proceeding). The rationale of these cases is that,
ordinarily, offers of settlement as to a disputed claim for coverage are
37
inadmissible. Akin, supra, 927 S.W.2d at 629.
As in Akin, Allstate, State Farm, Progressive, United Fire, and the other
cases cited supra, the trial court’s order denying AAA’s request to sever
and abate the extra-contractual claims and to abate discovery as to same is
an abuse of discretion because it does “not do justice, avoid prejudice, or
further convenience.” In re Allstate, supra, 447 S.W.3d at 502. Here, AAA
offered Jackson $20,000.00 in exchange for the settlement and release of a
disputed contract claim (i.e., Jackson’s request for UIM benefits), which was
not accepted, and which Jackson asserts the failure of AAA to pay same –
even though it will not resolve the UIM lawsuit – constitutes a breach of
contract and bad faith on the part of AAA. [MR 1; 4-5; 8-10.] It is difficult
to imagine an even more objectionable and prejudicial situation to an
insurer than the one presently before this Court, which clearly mandates
both the severance and abatement of Jackson’s extra-contractual claims.
Thus, consistent with Brainard and its progeny, unless and until Jackson
obtains a judgment establishing the conditions precedent to assert a valid
UIM claim (that is, a judicial finding as to Tompkins’ liability, Jackson’s
actual damages, and that Tompkins is actually underinsured), AAA has no
contractual obligation to pay UIM benefits.
38
Without an existing contractual obligation to pay, AAA should not be
required to put forth the effort and expense of conducting discovery on
Jackson’s extra-contractual claims because these claims have not yet
accrued and would be rendered moot by Jackson’s failure to prevail as to
his liability and damages claims against Tompkins and only then after a
subsequent refusal to pay by AAA the judicially established UIM claim (in
the event Jackson obtains a final adjudication demonstrating he is legally
entitled to recover).
Allowing Jackson to conduct discovery on his extra-contractual
claims will require AAA “to expend resources answering discovery that is
far broader than the car accident claim that must be resolved.” In re
Progressive, supra, 439 S.W.3d at 427. Thus, the trial court’s refusal to sever
and abate the extra-contractual claims and to abate discovery on these
claims was an abuse of discretion warranting mandamus relief. See In re
Allstate, supra, 2003 Tex. App. LEXIS 9245 *2; In Allstate , supra, 447 S.W.3d
at 502; In re Prudential, supra, 148 S.W.3d at 135–36.
39
B. AAA Has No Clear and Adequate Remedy By Appeal Because It Will
Lose Substantial Rights By Being Required To Conduct Discovery on
Claims Which Have Not Accrued and May Be Rendered Moot.
Once AAA is required to respond to the discovery propounded by
Jackson and which go only to his settlement-breach of contract and extra-
contractual claims, AAA will be irreparably harmed. Moreover, as Texas
jurisprudence has consistently held, AAA has a substantial right not to be
required to put forth the expense of conducting discovery on extra-
contractual claims which have not accrue, are not ripe, and could be
rendered entirely moot, unless and until Jackson first conclusively prevails
on her UIM claim and only then after AAA fails to pay those benefits. See,
e.g., In re Progressive, supra., 439 S.W.3d at 428 (citing In re United Fire Lloyds,
327 S.W.3d at 256). If discovery on Jackson’s extra-contractual claims is
permitted to advance, AAA will be required to conduct discovery “on
claims that may have not yet accrued and that could be rendered moot by .
. . the trial relating to . . . underinsured motorist benefits.” In re Allstate,
supra, 447 S.W.3d at 503 (citing In re Progressive, 439 S.W.3d at 427–28); see
also In re American Nat’l County Mut. Ins. Co., 384 S.W.3d 429, 439 (Tex.
App.–Austin 2012, orig. proceeding) (holding that insurer did not have
adequate remedy by appeal where it would “lose substantial rights . . . by
40
being required to prepare and try claims that may be rendered moot”).
Accordingly, AAA has no adequate remedy by appeal, and mandamus
relief is warranted. Id.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Relator AAA Texas
County Mutual Insurance Company respectfully prays that this Court
direct the trial court to withdraw its November 6, 2015 order and instruct
the trial court to sever and abate the extra-contractual claims and to abate
discovery on Jackson’s severed settlement-breach of contract, extra-
contractual, and bad faith claims until there has been a full and final
resolution of Jackson’s UIM claim, and to vacate the November 6, 2015
order compelling AAA to respond to the discovery requests associated
with or which only pertain to Jackson’s extra-contractual claims. AAA also
prays and for such other and further relief to which AAA may be entitled.
41
Respectfully submitted,
WALTERS, BALIDO & CRAIN, L.L.P.
BY: /s/ Gregory R. Ave
GREGORY R. AVE
Texas Bar No.: 01448900
greg.ave@wbclawfirm.com
JAY R. HARRIS
Texas Bar No.: 00793907
Meadow Park Tower, Suite 1500
10440 North Central Expressway
Dallas, Texas 75231
Telephone: 214-347-8310
Facsimile: 214-347-8311
ATTORNEYS FOR RELATOR AAA TEXAS
COUNTY MUTUAL INSURANCE
COMPANY
42
CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), the
undersigned certifies that this petition complies with the type-volume
limitations of Texas Rule of Appellate Procedure 9.4(i)(2)(B). Exclusive of
the exempt portions identified by Texas Rule of Appellate Procedure
9.4(i)(1), this petition contains 8,664 words, including footnotes, headings,
and quotations. In providing this word-count, the undersigned is relying
on the word count generated by the computer program used to prepare the
brief.
This brief has been prepared in proportionally spaced type, 14-point
text, and in Book Antiqua font, using the computer program known as
Microsoft Word (2010 version).
Acknowledged: November 16, 2015
/s/ Gregory R. Ave
GREGORY R. AVE
43
CERTIFICATE OF SERVICE
This is to certify that on this the 16th day of November, 2015 a true
and correct copy of the above document has been forwarded to all counsel
of record in compliance with the Texas Rules of Civil Procedure.
The Honorable Judge David Brabham Via hand delivery
Judge of the 188th Judicial District Court of Gregg County
Gregg County Courthouse
101 East Methvin, Suite 408
Longview, Texas 75601
Justin A. Smith Via E-Serve
Glenn A. Perry
Sloan, Bagley, Hatcher & Perry Law Firm
101 East Whaley Street
Longview, Texas 75601
ATTORNEYS FOR REAL PARTY
IN INTEREST THOMAS JACKSON
/s/ Gregory R. Ave
Gregory R. Ave
44
APPENDIX
Item Tab
Order Denying AAA’s Motion to Sever and Abate ..........................................A
Order Compelling AAA to Respond to Jackson’s Extra-Contractual
Discovery Requests ................................................................................................ B
Defendant’s Objections and Responses to Plaintiff’s First Request for
Production; Defendant’s Objections and Answers to Plaintiff’s First
Set of Interrogatories; and Defendant’s Objections and Responses to
Plaintiff’s First Request for Admissions ............................................................. C
45
Tab A
FILE O
GREGG COUNT',~ TEXA 8
CAUSE NO. 2014-1365-A
THOMAS JACKSON § IN THE DISTRICT COURT 0
§
vs. § GREGG COUNTY, TEXAS
§
AAA TEXAS COUNTY MUTUAL §
TH
INSURANCE COMPANY § 188 JUDICIAL DISTRICT
ORDER DENYING DEFENDANT AAA TEXAS COUNTY MUTUAL INSURANCE
COMPANY'S MOTION FOR SEVERANCE AND PLEA IN ABATEMENT
On the io-t-'h day of __N_o_\J_._____, 2015, came to be heard Defendant
AAA Texas County Mutual Insurance Company's Motion for Severance and Plea in Abatement
to Plaintiffs extra-contractual claims and causes of action. The court, after reviewing the
arguments of counsel and reviewing the documents on file, is of the opinion that said motion
should be DENIED.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED, that Defendant's
Motion for Severance and Plea in Abatement is DENIED its entirety, and the Plaintiffs extra-
contractual claims will not be severed from the underlying contract claim and the extra-
.
contractual cla11n~Jl!e not abated.
--r.- /! .. _ ..L .L .. A
I J..u. \JZlW'"'ll Ott~"
1D -'-
'"{IA.CAA..
fw·I'cJ. -skill be_ (:;,i~co:t~
1
04 -to "'R.,.,.;~''=- ~o. c?..c..ti-c~c~eu ~D.A...,'5.
SIGNED this (I) th day of No Li , 2015.
JUDGE PRESIDING
ORDER DENYING DEFENDANT'S MOTION FOR SEVERANCE AND
PLEA IN ABATEMENT· Solo Page
# 14872448177325
Tab B
FILED
GREGG COUNT'(. TF..XAS
NOV 0 6 2015
CAUSE NO. 2014 - 1365 - A
-zu -A
DEPUn'
THOMAS JACKSON § IN THE DISTRICT COURT
§
vs. § OF GREGG COUNTY, TEXAS
§
AAA TEXAS COUNTY MUTUAL §
INSURANCE COMPANY § 1881h JUDICIAL DISTRICT
AGREED ORDER ON PLAINTIFF'S MOTION TO COMPEL
After considering Plaintiff, Thomas Jackson's Motion to Compel, the response, any
evidence submitted therewith, and arguments of counsel, the Court finds the Motion to be well
taken and therefore GRANTS Plaintiff's Motion to Compel.
It is therefore, ORDERED, ADJUDGED and DECREED that Plaintiff's Motion to
Compel is GRANTED and that all objections asserted by Defendant in its responses to Plaintiff's
First Requests for Admission, First Set of Interrogatories, and First Requests for Production are
hereby OVERRULED.
The Court further FINDS that the following requests are related to the incident
underlying the suit, Plaintiff's claims for breach of contract and/or Plaintiff's claims for
declaratory judgment: Plaintiff's Request for Admission No. 18; Plaintiff's Interrogatories Nos.
I, 2, 4, 5, 7, 9, 10, 11, 12, 13, 15, and 20; Plaintiff's Requests for Production Nos. 2, 3, 4, 5, 7, 9,
IO, 11, 12, 13, 15, 16, 17, 18, 25, and 29; and Plaintiff's Request for Production No. 34, to the
~ - I
extent it pertains to these immediately aforementioned discovery requests. It is, therefore,
Page I
ORDERED that Defendant shall fully respond to these requests and interrogatories and produce
all responsive information and documents within fourteen (14) days of October I, 2015. It is
further ORDERED that should any information or material be withheld on the basis of privilege
from Defendant's responses to this discovery, Defendant shall produce a privilege log
identifying the information withheld, the specific privilege(s) asserted, information sufficient for
the Court and Plaintiff to assess the applicable of those privileges, and any and all other
information required by Texas Rule of Civil Procedure 193.3 within fourteen (14) days of
October I, 2015.
The Court further FINDS that that the following requests are related to Plaintiffs extra-
contractual claims: Plaintiffs Request for Admission No. 17; Plaintiffs Interrogatories Nos. 3,
6, 8, 14, 16, 17, 18, and 19; Plaintiffs Requests for Production Nos. l, 6, 8, 14, 19, 20, 21, 22,
23, 24, 26, 27, 28, 30, 31, 32, and 33; and Plaintiffs Request for Production No. 34, to the extent
it pertains to these immediately aforementioned discovery requests. It is, therefore, ORDERED
that Defendant shall fully respond to these requests and interrogatories and produce all
responsive information and documents within forty-five (45) days of October l, 2015. It is
further ORDERED that should any information or material be withheld on the basis of privilege
from Defendant's responses to this discovery, Defendant shall produce a privilege log
identifying the information withheld, the specific privilege(s) asserted, information sufficient for
the Court and Plaintiff to assess the applicable of those privileges, and any and all other
information required by Texas Rule of Civil Procedure 193.3 within forty-five (45) days of
October I, 2015.
Page 2
t-lo-..J. Z:,
SIGNED on_!__:..:::_:~----- , 201s.
--1\Ml.J``-
JUDGE PRESIDING
Page 3
Tab C
....•. '.
CAUSE NO. 201"1365-A
THOMAS JACKSON, § IN THE DISTRICT COURT OF
Plaintiff §
§
vs. § l 88th JUDICIAL DISTRlCT l
I
§ r
AAATEXASCOUNTYMUTUAL §
INSURANCE COMP ANY §
Defendant. § GREGG COUNTY, TEXAS
DEFENDANT'S OBJECTlONS and RESPONSES TO
PLAJNTIFF THOMAS JACKSON'S FIRST REQUEST FOR PRODUCTION
TO: Thotnas Jackson, Plaintiff, by and tbrougli his attomeys of record, M. Raymond Hatcl:ier
and Alan J. Robertson, Sloan, Bagley, Hatcher & Perry Law Firm, 101 East Whaley j.
Street, Longview, Texas 75601. !
COMES NOW AAA Texas County Mutual Insurance Company, Defendants in the above
numbered and styled cause, and serves its Objections and Responses to the Plaintiffs l'irst
Request for Prodiiction, in accordance with the Texas Rn!es of Civil Procednre.
Respectfully submitted,
WALTERS, BALIDO & CRAIN, L.L.P.
State Bar No. 01631230
Meadow Park Tower, Sirite 1500
10440 N01ih Central Expressway,
Dallas, TX 75231 I·.
I
Tel: 214-749-4805
l'ax: 214-760-1670 I
carlos.balidolii.!wbclawftrrn.com '
ATTORNEY FOR DEFEND.ANT
CERTIFICATE OE SERVICE
This is to certify that a true and correct copy of the foregoing document has been mailed,
faxed, or hand delivered to all parties ofrecord, in compliance with Rule 2la of the Texas Rules
of Civil Procedure, on December~ 2014.
Via First Class U.S. Mail
M. RaymondHatcher
Alan J. Robertson
Sloan, Bagley, Hatcher & Perry Law Film
I 01 East Whaley Street
Longview, Texas 75601
r:
i
' I
The Defendant objects generally to the Definitions and Instructions set forth at 1he beginning of i
this written discovery request for the reason that they are overly broad, unduly burdensome, and
i
harassing. Further, the Defendant objects to these Definitions and Instructions for tbe reason that I'
there is no provision in the Texas Rules of Civil Procedure requiring a party to abide by such
definitions and instructions. The Defendant also objects to the Definitions and Instructions to the
extent that they seek to impose a greater burden and obligation on tbe Defendant than is
permissible under the Texas Rules of Civil Procedure,
I
l
l
l
Without walving or limiting the foregoing general objection, the Defendant specifically i
objects to Plaintiff's discovery as follows: r
!'
"·
~;:
OBJECTIONS AND RESPONSES TO PLAINTIFF'S i"•
FIRST REQUEST FOR PRODUCTION (
i
I
1. The entire claims file and/or adjuster logs including, but not limited to, photographs, I
statements, notes, memoranda, tables, computer-generated information and other written i
documents contained iherein, that were generated in connection with fue injmy to the II
Plaintiff that forms the basis of this lawsuit. II
RESPONSE: I
I
The Defendant objects to this request on the grounds it violates the attomey clie11t,
attorney WOl'k product, witness statement and party communication privileges,
I
Tue Defendant further objects to this Request as being over broad, vague, ambiguous and
outside the scope of proper discovery. See Loftin v. Marlin, 776 S.W.2d 145, 148 (Tex.
1·
1989). I
The Defendant further objects to this Request as being outside the scope of discovery as
it concerns matters that are not relevant to the irurtant litigation nor is the request
reasonably calculated to lead to the discove1y of admissible evidence pursuant to the I
!
Texas Rules of Civil Procedure.
I
The Defendant furtl1er objects to this interrogatory in that the Plaintiff bas the burden of
proof to evince that relevant to any issue in this cause. In order for the Plaintiff to
recover under their DIM claim, they must prove that the purported I
underinsnred/uninsured motorist negligently caused the accident that resulted .in tbeir j"
purported damages. See Allstate Ins. Co. v. Bonner, 51 S.W.3d 289, 291-92 (Tex.2001);
Wel/tsch v. United Servs. Auto. Ass'n, 75 S.W.3d 53, 57 (Tex.App.-San Antonio 2002,
pet. denied).
. i'
The Defendant further objects to this request to the extent that the documents called for
therein is not relevant to any issue in tlus cause. The Plaintiff has yet to obtain judgment
establishing the liability and underinsured/uninsured status of the other
motorist. Brainard v. Trinily Universal Insurance Company, 216 S.W.3d.809 (Tex.
2006). See also Henson v. Soulhern Fmw Bureau Casualty Insurance Company, 17
S.W.3d 652, 653-54 (Tex. 2000).
The Defendant further objects as Plaintiff is not entitled to discovery of privileged
information regarding bad-faith claims so long as the insurance company's liability under
I·
ihe underlying liability claim remains undetermined. See M01yland Am. Gen. Ins. Co, v, !··
',. ;
Blackmon, 639 S.W.2d455, 457-58 (Tex.1982).
f~
Without waiving said objections, Defenda11t refers Plaintiff to photographs produced as ''··
Exhibit 1. I
Without waiving said objections, Defendant refers Plaintiff to Police Report, produced as i
I1·
Exhibit2.
I
I'
2. All written documentation of any investigation or reconstrnction of the collision (other ; i
than those conducted by govemmental/law enforcement entities or retained experts) from
which this lawsuit arises.
!
I'
RESPONSE: I ;.
The Defendant objects to this request as it is overly broad, vague and unduly j
burdensome.
The Defendant further objects to this request on the grounds it violates ihe attorney client, i
I
attorney work product, witness statement and party communication privileges,
t··
I
Defendant objects to this Request as being outside the scope of discovery as it concerns rI
matters that al'e not relevant to the instant litigation nor is the request rea%nably I.
I
calculated to lead to the discovery of admissible evidence pursuant to the Texas Rules of
!
Civil Procedure.
u
r.:
The Defendant further objects to this request to the extent that the documents called for
fuerein is not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment
establishing the liability and underinsured/uninsured status of the other
motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, I 7
S.W.3d 652, 653-54 (Tex. 2000).
The Defendant fmiher objects as Plaintiff is not entitled to discoveiy of privileged
information regarding bad-faith cltrims so long as the insurance company's liability under
- - - - - - - - - - - - - - --,
the underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
Blackmon, 639 S.W.2d455, 457-58 (Tex. 1982).
Without waiving said objections, see documents attached.
3. All photographs, motion pictures, video recordings, maps, drawings, charts, diagrams,
measurements, surveys, or other documents concerning the events and happenings made
the basis of this lawsuit, the vehicles in question, the scene of the collision at issue, or the
urea, persons, or objects involved either made at the time of or since the collision at issue.
RESPONSE:
l
The Defendant objects to this request as it is overly broad, vague WJd onduly
burdensome.
I
1·
i
The Defendant further objects to this request on the grounds it violates the attorney client,
attomey work product, witness statement and party cormnunication privileges.
The Defendant further objects to this Request as being outside the scope of discovery as
it concerns matters that are not relevant to the instant litigation nor is the request
reasonably calculated to lead to the discovery of admissible evidence pursuant to the
Texas Rules of Civil Procedure.
The Defendant further objects to this request to the extent that the documents called for
therein is not relevant to any issne in this cause, The Plaintiff has yet to obtain judgment
establishing the liability and underinsnred/uninsured statns of the other
motorist. Brainard v. Trini01 Universal Insurance Company, 216 S.WJd.809 (fex.
2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
S.W.3d 652, 653-54 (fex, 2000).
111e Defendant further objects 8B Plaintiff is not entitled to discovery of privileged
information regarding bad-faith claims so long 8B the insurance company's liability under
the underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
Blackmon, 639 S.W.2d 455, 457-58 (fex. 1982).
Without waiving said objections, see documents attached.
4. All surveillance movies, photographs, videotapes, electronic or digiial images, or other
images of Thom8B Jackson or of the collision or scene of the collision in Defendant's or
Defendant's agents' or attorneys' possession.
RESPONSE:
The Defendant refers Plaintiff to attached police report.
5. All incident reports (other than those created by governmental/law enforcement entities
or retained experts) and/or witness statements relating to or discussing the collision made
the basis of this lawsuit and/or the injuries that Plaintiff claims resulted from said
collision.
RESPONSE: 1:'
i
The Defendant objects to this request as it is overly broad, vague and unduly I::
burdensome.
The Defendant further objects to this request on the grounds it violates the attorney client,
attorney work product, witness statement and par(y communication privlleges.
The Defendant further objects to this Request as being outside fue scope of discove1y as
it concerns matters that are not relevant to the instant litigation nor is the request
reasonably calculated to lead to !be discovery of admissible evidence pursuant to the
Texas Rules of Civil Procedure.
The Defendant further objects to this request to the extent tl1at the documents called fo:t
therein is JJ.ot relevant to any issue in thls cause. The Plaintiff has yet to obtain judgment
es!J3.blishing the liability and underinsured/uninsurcd status of the other
motorist. Brainard v. Trinity Universal Insurance Company, 216 S. W.3d.809 (Tex.
2006). See also Henson v. Southern Farm Bureau Casualty Insurance Campany, 17
S.W.3d 652, 653-54 (Tex. 2000). 'j.,,
The Defendant further objects as Plaintiff is not entitled to discovciy of privileged
in:foI111ation regarding bad-faith claims so long as the insurance company's liability under
the underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Ca. v.
Blaclanon, 639 S.W.2d 455, 457-58 (Tex. 1982).
Without waiving said objections, see documents attached,
6. All correspondence, memoranda, reports, e-mails, fucsimile transmissions, and all other
documents evidencing communications regarding the insuraoce claim(s) or any aspect of
said claim(s) that is the subject of Ibis litigation between Defendant and its (a) adjusters, I
(b) employees, (c) officers, (d) agents,€ representatives,(!) independent adjusters (other
than those retained for !be purpose of litigation), and/or (g) independent adjusting firms
I
(otheI !ban those l'etained for the purpose of litigation).
'
!
RESPONSE:
The Defendaot objects to this request as it is overly broad, vague and unduly
burdensome.
--------------~··-,
' I
..... -.·1
·.T - - - - - - - - - - - - - -
'
The Defendant further objects to this req11est on the grounds it violates the attorney client,
attorney work product, wit11ess statement and party communication privileges.
The Defendmt further objects to this request to the extent that it is outside the scope of
discovery a.s it regards matters that are not relevant to the subject matter of this present
lawsuit, seeks infmmation which is not relevant to the claims asse11ed by the Plaintiff,
and is not reasonably calculated to lead to the discovery of admissible evidence pursuari
to the Texas Rules of Civil Procedure.
The Defendant further objects to this request to the extent that the documents called for ;
therein is not relevant to any issue Jn this cause. The Plaintiff has yet to obtain judgment I·
establishing the liability and underinsured/uninsured status of the other i
motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.Jd.809 (Tex. r
2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17 Ii,
S.W.3d 652, 653-54 (Tex. 2000). I 1.
!r:
The Defendant furU1er objects as Plaintiff is not entitled to discovery of privileged I
I i
info1mation regarding bad-faith claims so long as the insurance company's liability under '.~:
II
(;
::-:
the underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982). IJ
II !
Without waiving said objections, see documents attached.
i
7. All documents regarding every telephone conversation with or regarding Plaintiff. I
RESPONSE: I
The Defendant objects to this request as it is overly broad, vague and unduly
burdensome.
The Defendant objects to this request on the grounds it violates the attorney client,
attorney work product, witness statement and party conununication privileges.
;:
The Defendant further objects to this request to the extent 1hat it is outside the scope of L
discovery as it regardJl matters that are not relevant to the subject matter of this present j
lawsuit, seeks info:rmation which is not relevant to the claims asserted by the Plaintiff,
and is not reasonably calculated to lead to the discovery of admissible evidence pursuant
to the Texas Rules of Civil Procedure.
The Defendmt :further objects to this request to the extent that the documents called for
therein is not relevant to any issue in tbis cause. The Plaintiff has yet to obtain judgment
establishing the liability and underinsured/uninsured status of the other
motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
~----``--------·-,
.. I
2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
S.W.3d 652, 653-54 (Tex. 2000).
The Defendant further objects as Plaintiff is not entitled to discovery of privileged
1.
information regarding bad-faith claims so long as the insurance company's liability under
the underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
Blockmon, 639 S.W.2d455, 457-58 (Tex. 1982),
Ii
8. All docim1ents regarding the ammmt(s) set aside and/or placed in reserve regarding
Plaintiff's claim foruninsured/underinsured motmist coverage benefits herein.
I
RESPONSE: I
:
The Defendant objects to this request as it is overly broad, vague and unduly i
burdensome.
The Defendant further objects to this request to the extent that it is outside the scope of
discovery as it regards matters that are not l'<;levant to the subject matter of this present
lawsuit, seeks information which is not relevant to the claims asserted by the Plaintiff,
and is not reasonably calculated to lead to the discove.ry of admissible evidence pursuant '
to the Texas Rules of Civil Procedure.
T11e Defendant further objects to this request to the extent that the documents called for I
therein is not relevant to any issue in this cause. The Plaintiffhas yet to obtain judgment
establishing the liability and underinSlrred/uoinsured status of the other I
motorist. Broinardv. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
2006). See also Henson v. Southern Farm Bureau Casually Insurance Company, 17
S.W.3d 652, 653-54 (Tex. 2000).
The Defendant further objects as Plaintiff is not entitled to discovety of privileged
information regarding bad-faith clain1s so long as the insurance company's liability under
the underlying liability claim remains nndetermined. See M01yland Am. Gen. Ins. Co. v.
Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982).
The Defendant farther objects to this request on tile gronnds it violates tile attorney client,
attorney work product, witness statement and pm1:y co=unication privileges.
''
i
I
1·
i
I
iI
-----~----------,
9. All non-privileged investigative repmis regarding tl1e collision made the bai;is of this
lawsuit including documents, memoranda, photographs, video recordings, movies,
statements, reports, drawings, communications, and tangible things attached to such
reports or referred to therein.
RESPONSE:
The Defendant objects to this request as it is overly broad, vague and unduly
burdensome.
The Defendant forthcr objects to thL5 request to the extent that it is outside the scope of
discovery ai; it regards matters that are not relevant to the subject matter of this present
lawsuit, seeks infonnation which is not relevant to the claims asserted by the Plaintiff, r
and is not reasonably calculated to lead to the discovery of admissible evidence pm·suant
to the Texas Rules of Civil Procedure.
..
The Defendant forther objects to this rec1uest to the extent that the documents called for '
therein is not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment
establishing the liability and underinsured/uninsured status of the other
motorist. Bra/n(JJ'd v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
2006). See also Henson v. Southern Farm Bureau Casually Insurance Company, .17
S.W.3d 652, 653-54 (Tex. 2000).
The Defendant fU.rther objects as Plaintiff is not entitled to discovery of privileged "
infonnation regarding bad-faith claims so long as tl1e insurance company's liability under
the underlying liability claim remains undetennined. See Maryland Am. Gen. Ins. Co. v.
Blackmon, 639 S.W.2d455, 457-58 (Tex. 1982).
Without waiving said objections, the Defendant refers Plaintiff to documents attached.
10. Complete and legible photocopies or audible recordings of every written or oral statement
obtained by yon or on your behalf from any person designated by any party as having
knowledge ofrelevant facts pursuant to Texas Rule of Civil Procedure 194.2(e).
RESPONSE:
Defendant will supplement response.
11. If already produced herein, a complete copy of every primary, umbrella, and excess
insurance policy or agreement, including all declaratioru page(s), endorsements,
ame11dments, riders, and attachments iI1 effect when the subject collision occurred and
providing coverage to Plaintiff for injuries suffered in 1he subject collision.
RESPONSE:
The Defendant objects to 1his request to the extent that it is outside the scope of discovery
as it regards matters that are not relevant to the subject matter of this present law:mit,
seeks information which is not relevant to the claims asserted by the Plaintiff, and is not
reasonably calculated to lead to the discoveiy of admissible evidence pursuant to the
Texas Rules of Civil Procedure.
Defendant will supplement response.
12. All written docwuents in Defendant's possession signed by or on behalf of Plaintiff.
RESPONSE:
None.
13. All non--waiver agreements, reservation of right~ letters, and other documents or
comm11nications regardir1g any contrnctual obligation owed to you by Plaintiff or
condltion precedent to recove1y wi1h which Plaintiff must comply.
RESPONSE:
The Defendant objects to this request as it. is overly broad, vague and unduly
burderuome.
The Defendant :further objects to this request to the extent that it is outside the scope of
discove1y as it regards matters that are not relevant to the subject Jnatter of this present
lawmit, seeks information which is not relevant to the claims asserted by the Plaintiff,
and is not reasonably calculated to lead to the discovery of admissible evidence pursuant
!
to the Texas Rules of Civil Procedure.
The Defendant further objects to this request to 1he extent that the documerds called for
therein is not relevant to any iss1ie in this cause. The Plaintiff has yet to obtain judgment
establishing the liability and underinsured/uninsured status of the other
motorist. Brainardv. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
2006). See also Henson v. Southern Farm .Bureau Casualty Insurance Company, 17
S.W.3d 652, 653-54 (Tex. 2000).
The Defendant further objects as Plaintiff is not entitled to discovery of privileged
info1mation regarding bad-faith claims so long as the insurance company's liability under
the underlying liability claim remains undetermined. See Marylatui Am. Gen. Ins. Co. v.
Blackmon, 639 S.W.2d 455, 457~58 (Tex. 1982).
The Defendant further objects to this request on the grounds it violates the attorney client,
attorney work product, witness statement and party communication privileges.
14. All documents relating to any initial determination, temporary determination, tentative l.i
determination, or final determination regarding whether Plaintiff's claim herein is
i'
payable or not payable, ;
RESPONSE:
111e Defendant objects to this request as it is overly broad, vague and unduly
burdensome.
The Defendant furtber objects to this request on the gronnds it violates the attorney client,
attorney work product, witness statement and party communication plivileges.
The Defendant further objects to this request to the extent that it is outside the scope of
discovery as it regards matters that are not relevant to tbe subject matter of this present
lawsuit, seeks information which is not relevant to the claims asserted by the Plaintiff;
and is not reasonably calculated to lead to the discovery of admissible evidence pursuant
to the Texas Rules of Civil Procedure.
The Defendant furtber objects to this interrogatory in that the Plaintiff has the burden of
proof to evince that relevant to any issue in this cause. In order for the Plaintiff to
recover under their DIM claim, they must prove that the pmported
underinsured/uninsnred motorist negligently caused the accident that resulted in their
purported dan1ages. See Allstate Ins. Co. v. Bonner, 51 S.W.3d 289, 291-92 (Tex.2001);
Welltsch v. United Servs. Auto. Ass'n, 75 S.W.Jd 53, 57 (Tex.App.-San Antonio 2002,
pet denied). II
The Defundant further objects to this request to the extent that the documents called for I
therein is not relevant to any ill sue in this cause. The Plaintiff has yet to obtain judgment I
~ .
establishing the liability and underinsured/tu1insured status of the other
motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
I
.: '
2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
S.W.3d 652, 653-54 (Tex. 2000).
Without waiving said objections, please see attacheddoclllllenis.
--------------,
.. .; . _.. ..
: .' '
15, All documents and testimony regarding Plaintiff, Patricia Tompkins, or any aspect of the
collision made the subject oflhis h1wsuit that Defendant has obtalned through the use of
subpoenas and/or depositions on wdtten questions. (Plaintiff will pay a reasonable fee for
photocopies ofresponsive documents.)
i.
RESPONSE:
Plaintiff should be in possession of all medical records and other records pe1iaining lo
Plaintiff. If and when Defendru1t obtains such records, Defendant will make these
records available to the Plaintiff for inspection upon reasonable notice and will furnish
copies to any party who requests copies at that party's expense pursuant to TRCP Rule
205.3(e). Additionally, Plaintiff will be given an equal opportunity to obtain these records
at the time they are made available to !bis Defendant by the records service.
!
16. To the extent not already produced by either pai:ty herein, all medical and/or billing
,.
i'
records regarding ThomM Jackson, whether obtained before or since the :filing of this
lawsuit (Plfilntiff will pay a reasonable fee for photocopies of responsive documents.)
RESPONSE:
!.
Plaintiff should be in possession of all medical records and other records pertaining to
Plaintiff. If and when Defendant obtains such records, Defendant will make these
I:
records available to the Plaintiff for inspection upon reasonable notice and will furnish
copies to any party vvho requests copies at that pru·ty' s expense pursuant to TRCP Rule
205.J(e), Additionally, Plaintiff will be given an equal oppmtunity to obtain these records
at tbe time they are made available to this Defendant by the records service.
17, To the extent not already produced by Defendant herein, all documents obtained by or on
behalf of Defendant through the nse of an authorization furnished to Defendant by
Plaintiff.
RESPONSE:
Plaintiff should be in possession of all records pertaining to Plaintiff. IT and when
Defendant obtains such records, Defendant will make these records available to the
Plaintiff for inspection upon reasonable notice and will furnish copies to any pm:ty who
requests copies at that party's expense pursuant to TRCP Rule 205.3(e), Additionally,
Plaintiff will be given an equal opportunity to obtain these records at the tirne they are
made available to this Defendant by fue records service.
. ..
---,,.-~----------~·~---
··· ... ·: ~ . ··.• .,.·, .
18. All documents, records, repmts, notations, and/or memoranda regarding the Plaintiff
from persons and/or entitles that compile information regarding bodily injury claims,
health insurance claims, liability/property/casualty insurance claims, worker's
co111pensation claims, and other :insurance claims, including but not !imi:ted to the
Insurance Services Office ("ISO"), Southwest Index Bureau, and all similar persons or
entities.
RESPONSE:
The Defendant objects to this request as it is av.orly broad, vague and unduly
burdensome.
The Defendant further objects to this request 011 the gro1inds it violates the attorney client,
attorney work produc~ witness statement and party communication privileges.
The Defendant further objects to this reqllest to the extent that it is outside the scope of
discovery as it regards matters that arc not relevant to the subject matter of this present
lawsuit, seeks informati011 which is not relevant to the claims asserted by the Plaintiff,
and is not reasonably calculated to lead to the discoveiy of admissible evidence pursuant
to the Texas Rules of Civil Procedure.
Defendant asse1ts its pdvileges relating to computer programs, manuals, and database
information to the extent that it constitutes Trade Secrets and other proprietary
information. See Tex. R. Civ. Evidence 507; Tex. R. Civ. P. 76(a)(2)(c); Computer
Assoc. Int. 7v. Altai, Inc., 918 S.W.2d453, 455 (Tex.1996), RESTATEMENT (213) OF
TORTS - 757, comment (b). Plaintiff has the burden of establishing the information
reqi1ested herein is necessary for a fuir adjudication of th.is claim which bas not been
established to date. Defendant asserts that the benefit that Plaintiff might obtain from this
infmmation, if any, doe s not and cannot outweigh harm of disclosure to the defendant.
See In re Leviton Mfg. Co. inc., 1 S.W.3d 898, 902 (Tex. App.-Waco 1999, odg.
proceeding).
19. All peer reviews, audits, medical summaries, memoranda, notes, letters, and other
documents relating to or compiled from the medical records that Plaintiff has submitted
for payment pursuant to .the policy at issue herein and/or injuries that Plaintiff claims
were caused by the collision made the basis of this lawsuit.
RESPONSE:
The Defendant objects to this request as it is overly broad, vague and unduly
burdensome,
The Defendant further objects to this request on the grounds it violates the attorney client,
attorney work product, witness statement and party communication privileges.
The Defendant futther objects to this request to the extent that it is outside the scope of
discovery as it regards matters that are not relevant to the subject matter of this present i
I
lawsltlt, seeks information which is not relevant to the claims asse1ted by the Plaintiff,
and is not reasonably calculated to lead to the discovery of admissible evidence pursuant I
I
I
I'
i
to the Texas Rules of Civil Procedure.
I,.
The Defendant farther objects to this request to the extentthat the doclllllents called for I I'
therein is not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment
t
l r·
l·
i•
establishing the liability and underinsured/m1insured status of the other 1I
motorist. Brainard v. Trinity Universal Insurance Company, 216 S. W.3d.809 (Tex.
2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17 I 1·
S.W.3d 652, 653-54 (Tex. 2000). I
I
I
The Defendant farther objects as Plaintiff is not entitled to discovery of privileged I ,.
information regarding bad-faith claims so long as tbe insurance company's liability under
the underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
Blackmon, 639 S.W.2d455, 457-58 (Tex. 1982).
I
I
20. All liability work-ups or reports relating to Plaintiff's claim for uninsured/underinsured I
I
motorist coverage benefits. I
RESPONSE;
I'
i
The Defendant objects to thls request as it is overly broad, vague and m1dnly
burdensome.
The Defendant ftu:fuer objects to this request on the grounds it violates the attorney client, I
attomey work product, witness statement and party conununication privileges.
The Defendant ftuiher objects to this request to the extent that it is outside the scope of
discovery as it regards matters that are not relevant to the subject matter of thi~ present
lawsuit, seeks infurmation which is not relevant to the claims asserted by the Plaintiff,
and is not reasonably calculated to lead to the discovery of admissible evidence pursuant !
to the Texas Rules of Civil Procedure. "!.
l
,.
The Defendant farther objects to thls request to the extent that the documents called for !
therein 1' not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment
establishing the liability and underinsured/uninsm:ed status of the other
motorist. Brainardv. Trinity Unrversal Insurance Company, 216 S.W.3d.809 (Tex.
2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
S.W.3d 652, 653-54 (Tex. 2000).
The Defendant farther objects as Plaintiff is not entitled to discovery of privileged
infonnation regarding bad-faith claims so long as the insurance company's liability under
.. :.·... -i ' ; .. I ,·_- ......... "*'"•~·" ••• ,. • ' ! •i < •• ;,
the underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
Blackmon, 639 S.W.2d455, 457-58 (Tex. 1982).
21. All doc1unents relating to your use, if any, of computer software programs in reviewing,
analyzing, and/or evaluating claims of injury in motor vehicle collisions during 2013 and
2014.
RESPONSE:
The Defendant objects to this request on the grounds it violates the attorney client,
attorney work produCt, witness statement and party communication privileges.
The Defendant further objects to this request as it is overly broad, vague and unduly
b11rdensome.
The Defendant further objects to this request to the extent that it is outside the scope of
discovery as it regards matters that are not relevant to the subject matter of this present
lawsuit, seeks information wbich is not relevant to the claims asserted by the Plaintiff,
and is not reasonably calculated to lead to lhe discovery of admissible evidence pursuant
to lhe Texas Rules of Civil Procedure.
i
TI1e Defendant asserts its privileges relating to computer programs, manuals, and I
database information to the extent that it constitutes Trade SeCiets and oilier proprietary I
information. See Tex. R. Civ. Evidence 507; Tex. R. Civ. P. 76(a)(2)(c); Computer
Assoc. Int. 7 v. Altai, Inc., 918 S.W.2d 453, 455 (Tex. 1996), RESTATEMENT Q.13) OF
TORTS - 757, comment (b). Plaintiff bas the burden of establishing tbe information
requested herein is necessary for a fair adjudication of thls claim which has not been
established to date. Defendant asserts that the benefit that Plaintiff might obtain from this
information, if any, doe s not and cannot outweigh harm of disclosure to the defendant.
See In re Leviton Mfg. Co. Inc., 1 S.W.3d 898, 902 (Tex. App.~Waco 1999, orig.
proceeding).
The Defendant further objects to this request to the extent that the documents called for
therein is not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment
establishing the liability and underinsured/uninsuredstatus of the other
motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
2006). See also llenson v. Southern Farm Bureau Casualty Insurance Company, 17
S.W.3d 652, 653-54 (Tex. 2000).
111e Defendant further objects as Plaintiff is not entitled to discovery of privileged
infurmation regarding bad-faith claims so long as tlle insurance company's liability under
"•
the underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982).
. i
• • :.J I. • ..• ''. ··1
22. All documents relating to your use, if any, of computer software programs in reviewing,
a11alyzing, and/or evaluating Plaintiff's claims of injury in the motor vehicle collision that
forms the basis of this lawsuit
RESl'ONSE:
The Defendant objects to this request on the gro11Dds it violates the attorney client,
attorney work product, witness statement and party colillJlunication privileges,
The Defendant further objects to this request as lt is overly broad, vague and unduly
burdensome.
l11e Defendant further objects to this request to the extent that lt is outside the scope of
discovery as it regards matters that are not relevant to the subject matter of this present
lawsuit, seeks infom1ation which is not relevant to the claims asserted by the Plaintiff,
and is not reasonably calculated to lead to the discovery of admissible evidence pursuant
to the Texas Rliles of Civil Procedure,
Defendant asserts its p1ivileges relating to computer progran1S, manuals, and database
infonnation to the extent that it constitutes Trade Secrets and other propdetary
information. See Tex. R. Civ. Evidence 507; Tex. R. Civ. P. 76(a)(2)(c); Computer
Assoc. Int. 7 v. Altai, Inc., 918 S.W.2d 453, 455 (Tex, 1996), RESTATEMENT (213) OF
TORTS - 757, comment (b), Plaintiff has the burden of establishing the information
requested herein is necessary for a fair adjudication of this claim which has not been
established to date. Defendant asse1ts that the benefit that Plaintiff might obtain from this
information, if any, doe s not and cannot outweigh harm of disclosure to the defendant.
See In re Levi/on Mfg. Co, Inc., 1 S.WJd 898, 902 (Tex. App.-Waco 1999, orig.
proceeding).
The Defendant further object5 to 1hls request to 1he extent that the documents called for
therein is not relevant to any issue in this cause. The Plaintiffhas yet to obtainjndgment I
I·
establishlng1he liability and underinsiJredfuninsured status of the other 1.
motorist, Brainardv. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex. I
!
2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
S.WJd 652, 653-54 (Tex. 2000).
The Defendant further objects as Plaintiff is not entitled to discovery of privileged
information regarding bad-faith claims so long as 1he insurance company's liability under
the underlying liability claim remains undetermined. See Maryland Am. Gen Ins. Co. v. ,.
Blackmon, 639 S.W.2d 455, 457-58 (Tex, 1982). !
'
_.,
. · .... ~:-·-- < !
23, All documents containing your policies, procedures, processes, and/or mles used by your
employees to assist in their evaluation of uninsured/underinsured motorist claims.
RESPONSE:
The Defendant objects to this request as it is overly broad, vague and unduly
burdensome.
The Defendant further objects 1D this request on the grounds it violates tl1e attorney client,
attorney work product, witness statement and party communication privileges.
The Defendant further objects to tbis request to the extent tbat it is ontside the scope of
discovery as it regards matters tbat are not relevant to the subject matter of 1his present
lawsuit, seeks information which is not relevant to 1he claims assetted by tbe Plaintiff, i
I.
;
and is not reasonably calculated to lead to tlie discovery of admissible evidence pursuant
to 1he Texas R11les of Civil Procedure.
The Defendant further objects to tbis request to the extent tbat the documents called for
therein is not relevant to any issllf) in tbis cause. The Plaintiff has yet to obtainjudg.tllent
establishing the liability and underins1n-ed/uninsured status of!he other
motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
S.W.3d 652, 653-54 (Tex, 2000).
The Defendant further objects as Plaintiff is not entitled to discovery of privileged
information regarding bad-faith claims so Jong as fue insurance company's liability under
the underlying liability claim remains undetermined. See Maryland Am, Gen. Ins. Co, v.
Blackmon, 639 S.W.2d 455, 457-58 (Tex, 1982).
24. All dociunents containing your policies, procedures, processes, and/or rnles 1IBed by your
employees to assist in their evaluation of antomo bile collision bodily injury claims.
RESPONSE:
The Defendant objects to this request as it is overly broad, vague and unduly
burdensome.
The Defendant further objects to this request on the grounds it violates the attorney client,
attorney work product, witness statement and party comm\!Jlication privileges.
The Defendant fiuther objects to this request to the extent that it is outside the scope of
discovery as it regards matters that are not relevant to the subject matter of this present
lawsuit, seeks information which is not relevant to the claims asserted by the Plaintiff,
. ., ;-:.
and is not reasonably calculated to lead to the discovery of admi'lsible evidence pursuant
to the Texas Rules of Civil Procedure.
The Defendant further objects to this request to the extent that the documents called for
the1·ein is not relevant to auy issue in fuls caru;e. The Plaintiff has yet to obtain judgment
establishing the liability and underinstn·ed/uninsurcd status of the other
motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Iex.
2006). See also Henson 11. Southern Farm Bureau Casualty Insurance Company, 17
S.W.3d 652, 653-54 (Tex. 2000).
l
TI1e Defendant further objects as Plaintiff is not entitled to discovery of privileged i'
info1mationregarding bad-faith claims so long as the insurance company's liability under
the underlying liability clalm rcmalns undetermined. See Maryland Am. Gen. Ins, Ca. v.
Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982).
25. Pursuant to Texas Rule of Evidence 609(f), all documents supporting each criminal
I
conviction of any person identified by any party herein as having knowledge of relevant
facts that you intend to use for impeachment
RESPONSE:
The Defendant does not have any documents in its possession, custody or control
responsive to this request.
26. All reports, memoranda, and other documents related to your evaluation of any claim for
be1iefits made by Plaintiff other than the claun at issue herein.
RESPONSE:
The Defendant objects to this request as it is overly broad, vague and unduly
burdensome.
The Defendant further objects to this request on the grounds it violates the attorney client,
attorney work product, witness statement and party communication privileges.
The Defendant further objects to ·this request to the extent that it is outside the scope of
discovery as it regards matters that are not relevant to fhe subject matter of this present
lawsuit, seeks information which is not relevant to the claims asserted by fhe Plaintiff,
and is not reasonably calculated to lead to fhe discovery of admissible evidence pursuant
to the Texas Rules of Civil Procedure.
The Defendant further objects to this request to the extent that the documents called for
thereil1 is not relevant to any issue in this cause. The Plaintiff has yet to obtain.judgment
establishing the liability and underinsured/uniusured status of the other
I - I
.. -.·1
motorist. Brainardv. Trinity Universal lmmrance Company, ;>.16 S.W.3d.809 (Tex,
2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
S.W.3d 652, 653-54 (Tex. 2000).
(·.
The Defendant further objects as Plaintiff is uot entitled to discovery of privileged '·
infonnation regarding bad-faith claims so long as the insurance company's liability under
the underlying liability claim remains undetermined, See Maryland Am. Gen. Ins. Co. v.
Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982).
27. All documents relating to every initial determination, temporary detem1ination, tentative
determination, or final determination regarding whether any of Plaintiff's claims other
than that at issue herein Wa'l payable or notpayable.
RESPONSE: l:
!
The Defendant objects to this request as it is overly broad, vague and unduly
burdensome.
TI1e Defendant further objects to this request on the groui1ds it violates fue attorney client,
attorney work product, witlless statement and party communication privileges.
,.
The Defendant further objects to this request to the extent tbat it is outside the scope of
,
discovery a'l it regards matters that are not relevant to 1he subject matter of this present
lawsuit, seeks information which is not relevant to the claims a'lserted by tbe Plaintifl;
and is not rea'lonably calculated to lead to the discovery of admissible evidence pursuant
to the Texas Rules of Civil Procedure.
The Defendant further objects to tlris request to the extenttbatthe documents called for
therein is not releva11t to any issue in this cause. The Plaintiff has yet to obtain judgment
establishing the liability and uuderirumred/uninsured status of the other
motorist. Brainardv. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
2006). See also Henson v. Southern Farm Bureau Casually Insurance Company, 17
S.W.Jd 652, 653-54 (Tex. 2000).
The Defendant fiuther objects a~ Plaintiff is not entitled to discovery of privileged
infom1ation regarding bad-faith claimll so long as the insurance company's liability under
the rmderlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
'·
Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982).
Without waiving said objections, please see attached documents.
I I c '
·1 ,J I . ·:
:,
'i:
I.
I'
Ij·
28. All documents regarding and/or discussing your refusal to pay 1hc $20,000.00 that you
offered on April 28, 2014.
RESPONSE:
The Detenda11t objects to this request as it is overly broad, vague mid Ullduly
burdenson1e.
The Defendant futther objects to this request 011 the grollllds it violates the attorney clie11t,
attorney work product, witness statement and party coll1lliunication privileges.
The Defe11dai1t further objects to this request to tl1e extent that th.e documents called for
tl1erei.n is not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment
establishing the liability and underinsured/uninsured statl1s of the other
motorist. Brainardv. Trinity Universal Insurance Company, 216 S,W.3d.809 (Tex.
2006). S.e also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
S.W.3d 652, 653-54 (Tex. 2000).
The Defendmit furfuer objects as Plaintiff iB not entitled to discovery of privileged
information regarding bad-faith claims so long as the insurance company's liability under
the underlying liability claim remains undetermined. See Maryland Am. Gen. In.<. Co, v.
Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982).
The Defe11dmit further objects to this rnquest to the extent that it is outside 1he scope of
discovery as it regards matters that are not relevmit to the subject matter of this present
lawsuit, seeks information which is not relevant to the claims asserted by the Plaintiff,
and is not reasonably calculated to lead to the discovery of admissible evidence pursuant
to the Texas Rules of Civil Procedure.
WithoLtl waiving said objections, please see attached documents.
29. All documents reflecting, regarding, and/or discussing premium payments made by
Plaintiff fur the automobile insurance policy in effect when the collision that is the r
subject of this lawsuit occurred.
RESPONSE: i
],
Tue Defendant objects to this request as it is overly broad, vague arid unduly ii
burdensome.
,.I·
I'·
The Defendant further objects to thiB request on the grounds it violates the attorney client, "1·
:1
attorney work product, witness statement and party communication privileges, 1!I'
!!
The Defendant further objects to thiB request to the extent that it is outside the scope of !!
discovery as it regards matters that are not relevant to the subject matter of 1his present ·'
I '
..
---.-~------ci-.-c,-ccc-.-~--.-... :er
..,-..,.,,. .-~
...----~.~...,.,....,..``----~----~...:::r:·.:-:~c--··--;~-.
lawsuit, seeks information which is not relevant to the claims asse1tecl by the Plaintiff,
and is not reasonably calculated to lead to the discovery of admissible evidence pursuant
to the Texas Rules of Civil Procedure.
The Defendant further objects io this request to the extent that the documents called for
therein is not relevant to any issue in this caase. The Plaintiff has yet to obtain judgment
establishing the liability and underinsured/uninsured status of the other
motorist. Brainardv. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
S.W.3d 652, 653-54 (Tex. 2000).
The Defendant further objects as Plaintiff is not entitled to discovery of privileged
info1mation regarding bad-faith claims so long as the insurance company's liability under
the underlying liability claim remains undetennined. See Maryland Am. Gen. Ins. Co. v.
Blackmon, 639 S.W.2d455, 457"58 (Tex. 1982).
30. All documents necessary to determine the name, address, telephone number, ilnmediate
SLtpervisor, and current employer of all of Defendant's adjusters, employees, agents,
aod/or representatives that have -reviewed Plaintiffs claim :file from a claims handling or
claims review standpoint.
RESPONSE:
The Defendant objects to this request as it Js overly broad, vague and unduly
burdensome.
The Defendant further objects to this reqQest on the grounds it violates the attorney client,
attorney work product, witness statement and party commllnication privileges.
The Defendant further objects to this request to the extent that it is outside the scope. of
discovery as it regards matters that are not relevant to the subject matter of this present
lawsuit, seeks inforn1ation which is not relevant to the clain1s asserted by tlle Plaintiff,
and is not reasonably calculated to lead to the discovery of admissible evidence pursuant
to the Texas Rules of Civil Procedure.
The Defendant ftuther objects to this request to tlle extent that the documents called for
therein is not relevant to any issue in this cause. The Plaintiff has yet to obtainjndgment
establishing the liability and uuderinsured/uuinsured status of the other
motorist. Brainard v. Trinity Universal Insurance Company, 216 S. W.3d.809 (Tex.
2006). See also Hemon v. Southern Farm Bureau Casualty Insurance Company, 17
S.W.3d 652, 653-54 (Tex, 2000).
The Defendant further objects as Plaintiff is not entitled to discovery of privileged
information regarding bad-faith claiffiB so long as the insurance company's liability under
···-·.·1
I
fue underlying liablli1y claim remains undetermined. See Maryland Am. C'rtm. Ins, Co. v.
Blackmon, 639 S.W.2d 455, 457-58 (Tex, 1982).
31. All documents and/or materials pertaining to any negotiations for settlement or offers of
settlement that were compiled or created prior to the time of the filing of this lawsuit. L
l
L·
RESPONSE:
I
The Defendant objects to this request as it is overly broad, vague and unduly I
burdensome.
The Defendant further objects to this request an the grounds it violates the attorney client,
attorney work product, witness statement and party communication privJleges.
lile Defendant further objects to this request to the extent that it is outside the scope of
discovery as it regards matters that are not relevant to the subject matter of this present
lawsuit, seeks infonnation which is not relevani to the claims asselted by the Plaintiff,
and is not reasonably calculated to lead to the discove1y of admissible evidence pursuant
to the Texas Rules of Civil Procedure.
The Defendant futther objects to this request to the extent that the documents called for
therein is not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment
establishing fue liability and underinsured/uninsured status of the other
motorist. Brainardv. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
2006). See also Hen,wn v. Southern Farm Bureau Ca.Yua/ty Jnsw·ance Company, 17
S.W.3d 652, 653-54 (Tex. 2000).
The Defendant fuither objects as Plaintiff is not entitled to discovery of privileged
infonnation regarding bad-faith claims so long as the insurance company's liability under
the underlying Jiabili1y claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982).
Without waiving said objections, please see attached. I
32. All documents, reports, or investigations relied upon by Defendant in denying or delaying II
payment of ru1y benefits to Plaintiff related to the claim thl\t is the subject of this lawsuit.
RESPONSE:
I
The Defendant objects io this request as it is overly broad, vague and nnduly
burdensome.
The Defendant further objects to this request 011 the grounds it violates the attorney client,
attorney work product, wit11ess statement and party communication privileges.
-----~---------·-,
-· ! .
The Defendant furthel' objects to this request to tbe extent that it is outside the scope of
discovery as it regards matters that are not relevant to the subject matter of this present
lawsuit, seeks information whlch is not relevant to the claims asserted by the Plaintiff,
and is not reasonably calculated to lead to the discovery of admissible evidence pursnant
to the Texas Rules of Civil Procedure.
The Defendant further objects to this intmogatory in that the Plaintiff has the burden of
proof to evince that relevant to any issue in U1is cause. In order for the Plaintiff to
recover under their U1M claim, they must prove that the purported
llJlderinsured/uninsured motorist negligently caused the accident that resulted in their
purported damages. See Al/stale Ins. Co. v. Bonner, 51 S.W.3d 289, 291-92 (Tex.2001);
Wellisch v. United Servs. Auto. Ass'n, 75 S.W.3d 53, 57 (Tex.App.-San Antonio 2002,
pet. denied).
The Defendant furilier objects to this request to !he extent that the documents called for
therein is not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment
e&tablishing the liability and underinsured/uninmred status of the other
motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
S.W.3d 652, 653~54 (Tex. 2000).
The Defendant further objects as Plaintiff is not entitled to discovery of p1ivileged
information regarding bad-faith claims so long as the insurance company's liability under
the underlying liability claim remains undetermined. See Maryland A1n Gen. Ins. Co. v.
Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982),
33, All documents regarding any contract that you have with any independent adjuster who
performed any service on your behalf related to Plaintiff's clairuhetein.
RESPONSE:
The Defendant objects to this request " it is overly broad, vague and unduly ~-
bmdensotne.
The Defendant further objects to this request on the grounds it violates the attorney client,
attorney wol'!c product, witness statement and party colll1Il1lnication p1ivileges.
The Defendant further objects to thIB rnquest to !he extent that it is outside the scope of
discovery as it regards matters that are not relevant to the subject matter of this present
lawsuit, seeks information whlch is 11ot relevant to the claims asserted by the Plaintiff,
and is not reasonably calctilated to lead to the discovery of adtnissible evidence pursuant
to the Texas Rules of Civil Procedure.
.·,
The Defendant further objects to this rec1uest to the extent thirt the documents called :for
therein is not relevant to any issue iu this cause. The Plaintiff has yet to obtain judgment
establishing the liability and undcrinsured/uninsured status of the other
motorist Brainard v. Trinity Universal lnswance Compar!JI, 216 S.W.3d.809 (Tex.
2006). See also Henson v. Soulhern Farm Bw·eau Casualty Insurance Company, 17 I
S.W.3d 652, 653-54 (Tex. 2000). i
The Defendant further objects as Plaintiff is not entitled to discovery of p1ivileged
information regarding bad-faith claims so long as t11e insurance company's liability under
the underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co, v.
Blackmon, 639 S.W.2d455, 457-58 (Tex. 1982).
34, All documents described or utilized in responding to Plaintiffs Interrogatories, Requests
for Production, and Requests for Admission.
RESPONSE:
The Defendant objects to this request as it is overly broad, vague and unduly
burdensome.
The Defendant further objects to this request on the grounds it violates the attorney client,
attorney work. product, witness statement aud party communication privileges.
The Defendant fmiher objects to this request to the extent trurt it is outside the scope of
discovery as it regards matters that are not relevant to the subject matter of this present
lawsuit, seeks information which is not relevant to the claims asserted by the Plaintiff,
and is not reasonably calculated to lead to the discovery of admissible evidence pursuant
to the Texas Rules of Ci~il Procedure,
The Defendant further objects to tbis request to the extent that the doctunents called for
therein is not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment
establishing the liability and tmderinsured/uninsured status of the other
i '.
motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex. !
2006). See also Henson v. Southern Farm Bureau Casual!y Insurance Company, I 1
iI.
,.
S.W.3d 652, 653-54 (Iex, 2000).
The Defendant further objects as Plaintiff is not entitled to discovery of privileged
information regarding bad-fhlth clallnB so long as the insurance company's liabilify under
the underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
Blackmon, 639 S.W.2d 455, 457-58 (Tex, 1982).
Withont waiving said objections, please see attached documents.
-------------~,-------,
-..~--~-.
-: :j. -``.~.:·.··. .
CAUSE NO. 201-1365-A
THOMAS JACKSON, § JN THE DISTRICT COURT OF
Plaintiff §
§
vs. § 188th JUDICIAL DISTRICT
§
AAA TEXAS COUNTY MUTUAL §
INSURANCE COMPANY §
Defendant. § GREGG COUNTY, TEXAS
l>EFENDANT'S OB.JECTlONS and ANSWERS TO
PLAtNTIFF TIIOMAS .JACKSON'S FlRST SET OF INTERROGATORIES
TO: Thomas .Jack$on, Plaintiff, by and through bis altomeys of record, M. Raymond Hatcher
and Alan J. Robertson, Sloan, Bagley, Hatcher & Perry Law Firm, 101 East Whaley
Street, Longview, Texas 75601.
COMES NOW AAA Texas County Mutual Insurance Company, Defendants lnthe above
numbered and styled cause, and serves its Objections and Answers to Plaintiff's First Set of
Intenogatories, in accordance with the Texas Rules of Civil Procedure.
Respectfully submitted,
WALTERS, BALIDO & CRAJN, L.L.P.
/k;~
CARLOS A. BALlDO
State Bar No. 01631230
Meadow Park Tower, Suite 1500
10440 North Central Expressway,
Dalli.s, TX 75231
Tel: 214-749-4805
Fax: 214-760-1670
cm1os.balido!i4wbclaw1irm.com
ATTORNEY FORDEFENDANf
----, ---------------·-,
I ., ; ·.·
"f<,..
.. ,.,
..,,.;.;; ...
CERTIFICATE OF SERVICE
This is to certify that a true and conect copy of the foregoing document hru; been mailed,
faxed, or band delivered to all parties of record, in compliance with Rule 21a of the Texas Rules
of Civil Procedure, on December~. 2014.
Via First Cf(lss U.S. Mail
M. Raymond Hatcher
Alan J. Robertson
Sloan,. Bagley, Hatcher & Peny Law Firm
101 East Whaley Street
Longview, Texas 75601
CARLOS A. BALIDO
' I
I ... .-.i !,~-· ;_ ....
•.,·,'',·1'. . ··,
!~.;E'~J-· . I
The Defendant obJccts generally to the Definitions and Instructions set forth at the beginning of
this written discovery request for the reason that they are overly broad, unduly burdensome, and
harassing. Furthet, the Defendant objects to i:hese Definitions and Instructions for the reason that
there is no provision in tl>e Texas Rules of Civil Procedme requiring a party to abide by such
definitions and instructions. TI1e Defendant also objects to the Definitions and fosn-11ctions to the
extent that they seek to impose a greater burden and obligation on the Defendant than is
pcrmissible under the Texas Rules of Civil Procedm·e.
Without waiving or limiting the foregoing general. objection, the Defendant specifically objects
to Plaintiff's discovery as follows:
OBJECTIONS AND ANSWERS TO PLAINTIFF'S
FIRST SET OF INTERROGATORIES
l. Identify each person answering these interrogatories, supplying information, and/or
assisting in any way with tl1e preparatinn of the answers to these interrogatories and/or
the responses to Plaintiff's Requests for Production and/or Requests for Admission.
ANSWER:
The Defendant objects to this interrogatory to the extent that it is outside the scope of
discove1y as it concerns matters that are not relevant to the subject matter of this present
lawsuit, it seeks informati011 which is not relevant to the clainrn asserted by the Plaintiff,
and is not reasonably calculaied lo lead to the discove1y of admissible evidence pursuant
to the Texas Rules of Civil Proce75 S.W.3d 53, 57 (fex.App.-Sau Antonio2002,
pet. denied)
The Defendant further objects to this request to the extent fuat the documents called for
therein is not relevant to any iss11e in this cause. Tue Plaintiff has yet to obtain judgment
establishlligthe liability and underinsured/uninsured status of the other
motorist. Brainard v. Trinity Universal lnrorance Company, 216 S.W.3d.809 (Tex.
2006). See also Henson v. Southern Fann Bureau Casualty Insurance Company, 17
S.W.3d 652, 653-54 (Tex. 2000).
----------------~-,
I ......
f``~_;.
... ~·-:. ~ ·•·.· .
Defendant objects as Plaintiffs are not entitled to discovery of ptivileged information
regarding bad-faith claims so long as the insurance company's liability under the
undeJ:lying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
Blackmon, 639 S.W.2d 455, 457-58 (fex. 1982).
Without waiving said objections, the Defendant refers Plaintiff to documents produced.
4. Jf you, your attorneys, or anyone acting on your behalf 01· on your attorneys' behalf took
or obtained photographs, videotape, mag110tic, digital, or electronic images, or other
images of the collision scene, vehides, or parties involved, please provide the name,
address, a11d telephone number of tbe person having custody of such images, the date on
which the images were taken or made, and the name of tbe person( s) taldng or making
such images.
ANSWI<~R:
The Deferrdant objects to this request as it is overly broad, vague and unduly
burdensome.
The Defendant further objects to this interrogatory to the extent that it is outside the
scope of disco very as it regards matters that are not relevant to the subject matter of this
present lawsuit, it seeks information which is not relevant to the clairni: asse1ted by the
Plafotiff, and it is not reasonably calculated to lead to fue discovery of admissible
evidence pursuant to the Texas Rules of Civil Procedure.
Tl1e Defendant further objects to tbis intmogatory in that the Plaintiff has tlie burden of
proof to evince that relevant to any issue in fuis cause. Jn order for the Plaintiff to
recover under their DIM claim, they must prove that the purported
unde1insured/uninsured motorist negligently caused the accident that resulted in their
purported damages. SeeAllstateins. Co. v. Bonner, 51 S.W.3d 289, 291~92 (Tex.2001);
Wellisch v, United Servs. Auto. Ass'n, 75 S.W.3d 53, 57 (Tex.App.-San Antonio 2002,
pet. denied)
The Defendant further objects to this request to the extent that the documents ruilled for
therein is not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment
establishing the liability and underi11"'1red/uninsured status of the other
motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
2006). See also Henson v. Southern Fann Bureau Casualty insurance Company, 17
S.W.3d 652, 653-54 (Tex, 2000).
TI1e Defendant further objects as Plaintiffs are not entitled to discovery of privileged
information regarding bad-faith claims so long as tbe insurance company's Uability under
tbe underlying liability claim remains undetermined. See Maryland An' Gen. Ins. Co. v.
Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982).
--,
·J
... _,...... ____
·,l i•"•
Without waiving said objections, the Defendant refers the Plaintiff to photographs and
documents produced in Defendant's Responses to Plaintiff's Request for Production.
5. Identify by name, employer (if different from Defendant) business address, job title, and
telephone munber of each iI1dividUJ1l who will be Defendant's in-court representative.
ANSWER;
The Defendant objects to this request as it is overly broad, vague and unduly
burdensome.
Without waiving said objections, Defendant's in-comt representative will be Frederick
Armour.
6. Identify by name, employer (if different from Defendant) business address, job title,
telephone number aud role of each of Defendant's employees, agents, repl'esentatives,
adjusters, independent adjusters, independent a75 S.W.3d 53, 57 (Tex.App.-San Antonio 2002,
pet. denied)
The Defenda11t further objects to this request to the extent that the documents callee! fur
therein is not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment
``----``-------··-,
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., ·;:,-
j
'.
'
establishing the liability and underinsured/uninsured status of the other
motorist. Brainardv. Trinily Uni.versa/ Insurance Compaey, 216 S.W.3d.809 (Tex.
2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
S.W.3t{ 65:>,, 653-54 (Tex. 2000).
The Defendant further objects as Plaintiffs are not entitled to discovery of. privileged
information regarding bad"faith claims so long aB the insurance company's liability under
the tmderlying liability claim remains i.mdetermined. See Maryland Am. Gen. Ins. Co. v.
Blackmon, 639 S.W.2d 455, 457-58 (Tex. J982).
The Defendant further objects to 1his Jntei:rogatory as it calls for a narrative response, and
is an attempt by Plaintiff to impropeily limit Defendant's testimony.
Without waiving said objections, Neiman Miller, AAA Texas County MuttJal Insurance
Company; Frederick Arm.our, AAA Texas County Mutual Insurance Company; aud Clint
Smith, Property Damage Appraisers.
7. Identify every medical doctor, physician, osteopath, physician's assistant, and!or nurse
who has reviewed medical records of Thomas Jackson in CO!llIBction with the claim for
uninsnred/uuderlnsured motodst benefits that are the subject of this lawsuit.
ANSWER:
TI1e Defendant objects to this request on the grounds it violates the attorney client,
attorney wotlcprodiict, witness statement.and party connnunication privileges.
The Defendant further objects to this h1te1mgatory to the ex(ent that it is outside the
scope of discovery as it regards .OJ.alters that are not relevant to the subject matter of this
present lawsuit, it seeks information which is not relevant to the claims asse1ied by the
Plaintiff, and it is not reasonably calculated to lead to the discovery of admissible
evidence pursuant to the Texas Rules of Civil Procedure.
The Defendant further objects to this interrogatory in that the Plaintiff has the burden of
proof to evince that relevant to any issue in this cause. !11 order for the Plaintiff to
recover under their UIM claim, they must prove that the purported
i.inderinsured/unimmred motorist negligently caused the accident thattesulted in their
purported damages. See Allstate Ins. Co. v. Bonner, 51S.W.3d289,291-92 (Tex.2001);
Wellisch v. UrritedServs. Auto. Ass'n, 75 S.W,3d 53, 57 (Tex.App.-San Antonio 2002,
pet. denied),
The Defendant further objects to this request to the extent that the documents called for
therein is not relevant to any issue in tbis cause. The Plaintiff has yet to obtain judgment
establishing the liability and underinsmedfuninsured status of the other
motodst. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex:.
. . . . .... '
'
I ~··-··
b}~··,
``~;<~. I ..-.
2006). See also Henson v. Southern Farm Bi1reau Casualty Insurance Company, 1. 7
S.W.3d 652, 653-54 (Tex. 2000).
Tlie Defendant further objects as Plaintiffs are uot eutitled to discovery of privileged
information regarding bad-faith claims so long as the insutance company's liability under
the ui1derlying liability claim remains \llldetermined. See Maryland Am. Gen. Ins. Co. v.
Blackmon, 639 S.W.2d455, 457-58 (Tex, 1982).
The Defendant further objects to this lnterrogato1y as it calls for a nanative response, and
is an. attempt by Plaintiff to impropedy limit Defendant's testimony.
Defendimt further objects to fuis Request to fue extent that it seeks infonnation that
exceeds the scope of discovery. Further, the Texas Rules of Civil Procedure, Rule 195.1
provides that a party may request iJ1for:rnation concerning testifying expert witnesses only
tlirough a request for disclosure and through deposition.
Plaintiff should be in possession of all meilical records and other records pertaining to
Plaintiff If and when Defendant obtains such records, Defendant will make these
records available to the Plaintiff for inspection up011 reasonable notice and will furnish
copies to any party who requests copies at that party's expense pursuant to TRCP Rule
205.3(e). Additionally, Plaintiff will be given an equal opportunity to obtnin these records
at the time they are made available to this Defendant by the records service.
S. Identify each of your employees who played any role in evaluating Plaintiff's claim,
authorized any proposed payment to be made to Plaintiff, and/ot made decisions
regai-ding any adjuster's a11thority to pay or deny Plaintiff's claim relating to
uninsured/1.Jnderillsured motorist coverage purchased by Plaintiff.
ANSWER:
Defendant objects to this Request as being over broad, vague, ambiguous and outside fue
scope of proper discovery. See Laflin v. Mar/In, 776S.W.2d145, 148 (Tex. 1989).
The Defendant farther objects to this request 011 the grotinds it violates the attorney client,
attomey work procluct, witness statement and party communication privileges.
The Defendant further objects to tliis interrogatory to the extent that it is outside the
scope of discovery as it concerns matte!'s that are not relevant to tbe subject matter of this
present lawsuit, it seeks infonnation which is not relevant to the claims asserted by the
Plaintiff, and is not reasonably calculated to lead to the discovery of admissible evidence
pursuant to the Texas Rules of Civil Procec!ure.
Defendant farther objects as Plaintiffs are not entitled to discovery of privileged
information regarding bad-faith claims so long as the insurance company's liability under
,.
-,---- .,
the underlying liability claim remains undetetnlined, See Mcrryfand Am. Gen, Ins. Co. v.
Blackmon, 639 S.W.2d 455, 457-58 (Tex:. 1982).
The Defendant fatiher objects to this interrogatmy in fuat the Plaintiff has the burden of
proof to evince that relevant to any issue in this cause. In order for the Plaintiff to
recover under their DIM claim, they must prove that the purported
underinsured/uninsured motorist negligently caused the accident that resulted in their
purpoited damages. See Allstate Ins. Co. v. Bonner, 51 S.W.3d 289, 291-92 (Tex.2001);
Wellisch v. United Servs. Auio. Ass'n, 75 S.W.3d 53, 57 (Tex.App.-San Antonio 2002,
pet. denied)
The Defendant further objects to this request to the extent that the documents called for
therein is not relevantto any issue iu this cause. The Plaintiff has yet to obtain judgmeut
establishing the liability and underinsured/unins\lred status of the other
motorist. Brainardv. Trinity Unf11ersaf Insurance Company, 216 S.W.3d,809 (Tex.
2006). See also Ifenson v. Southern Farm Bwreau Casualty Insw-ance Company, 17
S.W.3d 652, 653-54 (Tex. 2000).
Without waiving said objections, Neiman Jvfiller, AAA Texas County Mutual Insurance
Company and Frederick A1mour, AAA Texas County Mutual Insurance Company.
9. If you have :information that has not already beeu produced herein regarding any other
claims for personal iiajury of any type fuat were made or may have bee11 made by the
Plaintiff 01· by Patricia Tompkins since the collision made the basis of this suit, please
state all information you have regarding each such claim, specifically including but not
limited to;
a. The date of the claim;
b. The type of fue claim;
c. The name oft!1e persou making the claim;
d. The other parties bivalved in ti1e claim;
e. The injuries claimed in the incident made the basis of this claim
f. The identity of all medical providers iuvolved in treating an.y injury claimed in the
incident made the basis of the claim
g. Each llisurer and claim number assigned to 1he claim; and
h. 111e disposition of the claim.
ANSWER:
The Defendaut objects to tbis request as it is overly broad, vague and unduly
burdensome.
Defendant objects to this Request as being outside the scope of discove1y as it concerns
matters that are uot relevaut to the i11Stant litigation nor is the request reasonably
! I
·...•ii- '``?.. '
. '.~lrl ~-'5'il:.{,-i.:
calculated to lead to the discovery of admissible evidence pursuant to the Texas Rules of
Civil Procedure.
The Defendant furfuer objects to this in.te1wgatory as it calls for a nan1l.tive response, and
is an attempt by Plaintiff to imprope.tly limit Defondanfs testimony.
Without waiving said objectio·ru;, none.
10. Pursuant to Texas Rule of Evidence 609(f), identify by stating the date, cause nmnber,
offense, illld co mt foT eacl1 ctinrinal conviction of the Plaintiff and any person designated
by any party as h!lving knowledge of facts relevant to this matter pursuant to Texas Rl\le
of Civil Procedure 194.2(e),
ANSWER:
The Defendant is not aware of any a\ this tirne.
11. Pursuant to Texas Rules of Civil Procedure 194.2(d) and 192.3(a); if you contend that
you are entitled to a credit or offset against judgment, state for each such credit/offset:
a. The dollar amount;
b. Each category(ies) of damages to which yo11 claim the creditloffset applies; and
c. How you arrived at and/or calculated the dollar !lillOUllt of the credit/offset.
ANSWER:
The Dcfeudant objects to this request as it is overly broad, vague and -qnduly
burdensome.
The Defendant further objects to this iutenogatory as it calls for a narrative response, and
is !Ul attempt by Plaintiff to improperly limit Defend!Ult's testimony.
Without waiving said objections, Defendant refers Plain.tiff to response to Plaintiff's
194.2.
12. State each and every fuctor which yon now contend or will contend at trial caused or
contributed to causing the Plaintiff's damages including but not limited to pre-e:x:!Bting
physical or medical conditions of the Plaintiff and, for each such factor, state in general
the factual basis for your contention. ·
ANSWER:
The Defendant objects to this request as it is overly broad, vague and l\nduly
burdensome,
I;
I , ----------------··-,
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Tlie Defendant further objects to this inte11:ogatory as it cal!s fol' a narrative response, and
is an attempt by Plaintiff to improperly limit Defendanfs testimony.
Without waiving said objections, Defendant AAA Texas County Mutual lnsnrance
Company does 110t have personal knowledge of how the accident occurred. Defendant
refers Plaintiff to any deposition testimonies obtained in tbis matter, as well as documents
produced by any party.
13. If you contend that the Plaintiff's actions and/or omissions caused or co11tributed to
causing the collision fro1n which Plaintiff's claim for. uuinsured/underinsured motorist
benefits arises, describe in gelleral the factual basis for your contention.
ANSWER:
The Defendant objects to this request as it is overly broad, vague and unduly
burdenso1ne.
The Defendant :futther objects to this interrogatory as it calls for a narrative response, and
is an a!tempt by Plaintiff to impropm·ly limit Defeudanfs testimony.
Without waiving said objections, Defendant AAA Texas County Mutual Insmance
Company does not have personal knowledge of how the accident occurred. Defendant
refers Plaintiff to any deposition testimonies obtained in this matter, as well as documents
produced by any party, Further, Defendant makes no contentious at this time.
14. lfnot already contained in documents produced herein, state all ptocedmes followed and
each criteria utilized by Defendant in its investigation and evaluation of Plaintiff's claim.
ANSWER:
The Defendant objects to this request as it is overly broad, vague and unduly
burdensome.
The Defendant further objects to this request on the groUllds it violates the attorney client,
attomey work product, witness statement and paity commU11ication privileges.
The Defendant further objects to this intei:rogatozy as it cal!s for a narrative response, and
is an attempt by Plaintiff to impraperly limit Defendant's testimony.
Defendant objects to this Request as being outside the scope of discovery as it concerns
matters that are not relevant to lbe instant litigation nor is the request reasonably
calculated~ lead to tl1e discovery of admissible evidence plltsuant to the Texas Rules of
Civil ProcedUl'e.
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!
The Defendant further objects to this interrogatory in that the Plaintiff has the burden of
proof to evince that relevantto any issue in this cause. In order for the PJainliff to
· recover under their DJM claim, they must prove that the purported
um!erinsured/uninsured motorist negligently caused the accident tbat resulted in tlieir
purported damages. See Allstate Ins. Co. v. Bonner, 51 S.W.3d 289, 291-92 (Tcx.2001);
Wel/isch v. United Servs. Auto. Ass'n, 75 S.W.3d 53, 57 (Tex.App.-San Antonio 2002,
pet. denied)
The Defendant further objects to this request to the extent that the documents called for
therein is not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment
establishing the liability and underinsured/uninsured status of the other
motorist. Brainard v. Trinity Umi•ersa/ Insurance Company, 2.16 S.W.3d.809 (Tex.
2006). See also [{enson v. Southern Farm Bureau Casualty Insurance Campany, 17
S.W.3d 652, 653-54 (Tex. 2000).
Defendant objec1s as Plaintiffs are not· entitled to discovery of privileged information
regarding bad-faith claims so long as the insurance company's liability under the
underlying liability claim remains undetermined.. See Maryland Am. Gen. lns. Co. v.
Blac/anon, 639 S.W.2d45S, 457-58 (Tex. 1982).
15. List. identify, and describe all documents not already produced herein that suppo1t your
contention, if any, that:
a. Plaintiff failed to meet or perform condition(s) precedent to his bringing this lawsuit;
b. Plaintiff failed to comply with a term or condition of the-insurance agreement that is
the subject otfuis lawsuit; and/or
c. Plaintiff's claim is excluded from uninsurcd/underinsured motorist coverage pursuant
to a term or condition offue insurance agreement that is the subject of this lawsuit.
ANSWER:
The Defendant objects to this request as it is overly broad, vague and unduly
burdensome.
'Tiie Defendant further objects to this request on the gmunds it violates the attorney client,
attomey work product, witness statement and party communication privileges.
The Defendant further objects to this interrogatory as it calls for a narrative response, and
is an attempt by Plaintiff to improperly limit Defendant's testimony.
The Defondant ftu·ther objects to this request to fue extent tliat the documents called for
therein is not relevant to any issue in this cause. The Plaintiff has yet to obtirinjudgment
establishing the liability and underinsured/uninsured status of 1he other
motorist. Brainard v. Trinity Universal Insurance Campany, 216 S.W3d.809 (Tex.
··-,
.I 1,;:
2006). See also Henson v. Southern Farm Bureau Casualty insurance Compal'f)', 17
S.W.3d 652, 653-54 (Tex. 2000).
Defendant objects as Plaintiffs are not entitled to discovery of p11vileged information
regarding bad-faith claims so long as tl1e iasurance company's liability llllder the
1mderlyiag liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
Blackmon, 639 S.W.2d 455, 457-58 (fox. 1982).
Withollt waiving said objections, Defendant is not making those contentions at this time.
16. State every reason for your denial of Plaintiff's uninsured/llllderinsured motorist claim in
excess of your April 28, 2014, offer to pay $20,000.00 (in addition to $5,000.00 in
previously paid personal injury protection benefits and $30,000.00 previously paid by
Patricia Tompkins' insurance cartler).
ANSWER:
The Defendant objects to this request as it is overly broad, vague and unduly
burden1mrne.
The Defendant further objects to this request on the grounds it violates the attorney client,
attorney work produc~ witness statement ai1d party communication privileges.
The Defendant fm1:her objects to tliis interrogatory as it calls for a naimtive response, and
is an atten1pt by Plaintiff to improperly lilllit Defendant's testimony.
Defendant further objects to thiB Request as being outside the scope of discovery a' it
concems matters that are not relevant 1o the Instant litigation nor i.s the request reasonably
calculated to lead to the discovery of admissible evidence pursuant to tbe Texas Rules of
Civil Procedure.
TI1e Defeadant further objects to this request to the extent tl1at fue documents called for
therein is not relevant to any iBsue in this cause. The Plaintiff has yet to obtain judgment
establishing the liability aru:l llllderinsured/uninsured status of the otber
motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
S,W.3d 652, 653-54 (Tex. 2000).
Defendant objects a' Plaintiffs are not entitled to discovery of privileged information
regarding bad-faifu claims so long as the insurance cnmpany's liability under the
lmderlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
Blackmon, 639 S.W.2d455, 457-58 (Tex, 1982).
'•.~;-.,,
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•,;:_eft,,.~"·-
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17. If you used any computer software program to assist in the evaluation of Plaintiff's claim
fo1· tminsure17
S.W.3d 652, 653-54 (Tex. 2000).
Defendant objects as Plaintiffs are not entitled to discovery of privileged information
regarding bad-faith claims so long as the insurance company's liability llllder the
underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982).
Defendant asserts its privileges relating to computer programs, manuals, and database
information to the extent that it constitutes trade secrets and other proprietary information.
See Tex. R. Evidence 507; Tex. R. Civ. P. 76(a)(2)(c); Computer Assoc. Int. 7 v. Altai,
Inc., 918 S.W.2d 453, 455 (Tex. 1996), RESTATEMENT (213) OF TORTS - 757,
comment (b). Plaintiff has the burden of establishing the information re'luested herein is
necessary for a fair adjudication of tltls claim which has not been established to date.
-, I I
Defendaut roserts that the benefit that Plaintiff might obtain from this information, if any,
does not at1d cannot outweigh harm of disclosure to the Defendant See Tn re Leviton Mfg.
Co. Inc., 1S.W.3d898, 902 (Tex. App.-Waco 1999, orig. proceeding).
18. List all manuals, instmctions, directions, and materials providing guida11ce regarding the
use of each computer software program identified ln the foregoing intemigatory.
ANSWER:
Defendant objects to this Request as being over broad, vague, ambiguous and outside 1he
scope of proper discovery.
Defendant furll:Jer objects to this Request as being outside the scope of discovery as it
concerns m11tters that are not relevant to the instant litigation nor is the request reasonably
calculated to lead to the discovery of admissible evidence purruant to the Texas Rules of
Civil Procedure.
Tile Defendant fu1iher objects to this interrogatory as it calls for aruirtative response, and
is an attempt by Plaintiff to improperly limit Defendant's testimony. I
I
The Defendant furthe!' objects to this request to the extent that the documents called for
therein is not relevant to any issne in this cause. The Plaintiff has yet to obtain judgment
r
I
establishing the liability and 1u1deril!sured/uninsured statns oftlw other
motorist. Brainard 11. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
2006). See also Henson v. Southern Farm Bureau Casualty Jmurance Company, 17
S.W.3d 652, 653-54 (Tex. 2001}).
Defendant objects as Plaintiffs are not entitled to discovery of privileged infoJ'ITiation
regarding bad-faith .clain1s so long as the insnrance company's liability under the
underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
Blackmon, 639 8.W.2d 455, 457-58 (Tex. 1982).
Defendant asserts its privileges relating to computer programs, manuals, and datahase
infonnation to the extent that it constitutes trade secrets and other proprietary information.
See Tex. R. Evidence 507; Tex. R. Civ. P. 76(a)(2)(c); Computer Assoc. Int. 7 v. Altai,
Inc., 918 S.W.2d 453, 455 (Tex. 1996), RESTATEMENT (213) OF TORTS - 757,
comment (b). Plaintiff has the burden of establishing the infommtion requested hereirds
necessary for a fair adjudication of this. claim which has not been estllblished to date.
Defendant asserts that the benefit that Plaintiff might obtain from this information, if any,
does not and cannot outweigh hann of disclosure to the Defendant See In re Leviton Mfg.
Co. Inc., l S.W.3d 898, 902 (Tex.. App.-Waco 1999, orig. proceeding).
I I
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•
19. State every reason for your refusal to pay the $20,000.00 that you offered (in addition to
$5,000.00 in previmisly pa\d personal injury protection benefits an_d $30,000.00
previously paid by Patricia Tompkins' insurance carrier) through Fredrick M. Aimour,
ynur Claims Service Representative, onApri128, 2014.
ANSWER:
The Defendant objects to this request as it is overly broad, vague and unduly
burdensome.
The Defendant fiuiher objects to this request on the grounds it violates the attorney client,
attorney work product, witness statement and paiiy cormnunication privileges.
The Defendant further objects to this interrogatory as it calls for a nairative response, and
is an attempt by Plaintiff to improperly limit Defendant's testi:tnony.
The Defendant further objects to this interrogatory to the extent that it is outside the
scope of discovery as it concerns matters that ai·e not relevant to the subject matter of this
present lawsuit, it seeks information which is not relevant to the claims asserted by the
Plaintiff, and is not rerumnably calculated to lead to the discovery of admissible evidence
pursuant to the Texas Rules of Civil Procedure.
The Defendant further object' to this request to the extent that the documents called for
therein is not relevant to any issue in this cause. The Plalntiffhas yet to obtain judgment
establislring the liability and undetinmired/unhisured status of the other
motorist. Brainard v. TI·inity Universal Insurance Company, 216 S.W.3d.809 (Tex.
2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
S.W.3d 652, 653-54 (Tex. 2000).
Defendant objects as Plaintiffs are not entitled to discovery of privileged information
regarding bad-faith claims so long as 1he insurance company's liability under the
underlying liability claim remains undetermined. See Maryland Ant Gen. Ins. Co. :v.
Blackmon, 639 S.W.2d455, 457-58 (Tex. 1982).
20. If you contend that Plaintiff is obligated to provide you with a release in exchange for the
p~yment of benefits afforded by the uninsured/nnderinsured motorist coverage contllined
in the policy at issue herein, identify all policy provisions and other documents on which
you base such contention.
ANSWElli
The Defondimt objects to this request as it is overly broad, vague and unduly
burdensome.
l~,_~ •• :··,···
'``i-·;
...
·~x:?':;'t.; '.~;e.
Defendant objects to this Request to the extent that this requests the Defendant to render a
legal opinion or legal conclusion,
The Defendant further objects to fuis interrogatory as it calls for a narrative response, and
is an attempt by Plaintiff to improperly limit Defendant's testimony.
The Defettdant further objects to this interrogatory to the extent that it is outside the
scope of discovery as it concerns matters that are not relevant to the subject matter of this
present lawsuit, it seeks infomllltion which is not relevant to the claims asserted by the
Plaintiff, and is not reasonably calculated to lead to tbe discovery of admissible evidence
pursuant to the Texas Rules of Civil Procedure.
The Defendant further objects to this request to the extent that the documents called for
therein is not relevant to any issuein this cause. The Plaintiff has yet to obtain judgment
establishing tile liability and underinsured/uninsured status of the other
motorist. Bratnardv. Trinity Universallnsurance Company,216 S.W.3d.809 (Tex.
2006) See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
S.W.3d 652, 653-54 (Tex. 2000).
Defendant objects as Plaintiffs are not entitled to discovery of privileged information
regarding bad-faith claims so long as the insurance company's liability under the
underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982).
··I I ....-.-.--~-
--·-·-~:;-·- - ------------
... ... -.-...-.
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j_
I'
CAUSE NO. 201-1365-A
THOMAS JACKSON,
Plaintiff
§
§
IN nm DISTRICT COURT OF
I
§
vs. § 188thJUDICIAL DISTRICT
§
AAA TEXAS COUNTY MUTUAL §
INSURANCE COMPANY §
Defendant. § GREGG COUNTY, TEXAS
OE:FENDANT'S OBJECTIONS and RESPONSES TO PLAINTIFF THOMAS
JACKSON'S FIRST REQUEST FOR ADMISSIONS
TO: Thomas Jackson, Plaintiff, by and through his attorneys of record, M. Raymond Hatcher
·and Alan J. Robertson, Sloan, Bagley, Hatcher & Perry Law Firm, 101 East Whaley
Street, Longview, Texas 75601.
COMES NOW AAA Texas County Mutual Insurance Company, Defendants in the above
nwnbered and styled cause, and serves its Objections and Responses to Plaintiffs First Request
for Admissions, in accordance with the Texas Rules of Civil Procedure.
Respectfully submitted,
wl~71:'
CARLOS A BALIDO
State Bar No. 01631230
Meadow Park Tower, Suite 1500
10440 North Central Expressway,
Dallas, TX 75231
Tel: 214-749-4805
Fax: 214-760-1670
carlos.balidp(il)wbclaw.tlnn.com
ATTORNEY FOR DEFENDANT
------, I I -----~-------·-,
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CEltfIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing document has been mailed,
faxed, or hand delivered to all parties of record, in compliance witli Rule 2la of the Texas Rules
of Civil Procedure, on December '2,3 2014.
Vi11 First Cutss U.S. Med[
M. Raymond Hatcher
Alan J. Robertson
Sloan, Bagley, Hatcher & Perry Law Firm
101 East Whaley Street
Longview, Texas 7560!
I
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I1·
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i.
.. ' -,- ......... -.·!
i
The Defendant objects generally to tl1c Definitions and Instructions set forth at ilie beginning of
this written discovery request for the reason that they are overly broad, unduly burdensome, and
harassing. Further, the Defendant objects to these Definitions and Instructions for the reason that
fuere is no provision in the Texas Rules of Civil Procedure requiring a party to abide by such
definitions and instructions. The Defendant also objects to the Definitions and Instructions to the
extent that iliey seek to impose a greater burden and obligation on ilie Defendant tl1an is
permissible under the Texas Rules of Civil Procl'dure.
Witl10ut waiving or limiting the foregoing general objection, the Defendant specifically objects
to Plaintiff's discovery as follows:
OBJECTJONS AND RESPONSES TO PLAINTIFF'S
FIRST REQUEST FORADMISSJONS
1, Plaintiff sued Defendant AAA Texas County Mutual Insurance Company in its proper
name.
RESPONSE:
Admit.
2. On June 12, 2013, Plaintiff was h1Sured by a personal automobile policy bearing policy
number TPAO 16443 3 53 issued by Defendllllt.
RESPONSE:
Admit
Prior to June 12, 2013, Defendant entexed into a contractual agreement with Plaintiff to
I
1-
provide uninsured/underinsured motoiist cove111ge to Plai11tiff in the event that he was
involved in a motor vehicle collision caused by m uninsured/underinsured motodst.
1
RESPONSE:
I
Admit. !.
4. Your policy number TPAO 16443353 prnvided uninsured/underinsured motorist coverage
to PlaintiffonJ1ine 12.. 2013.
RESPONSE:
Admit
--------------···-,
·.,_..J : ••.
5. Your policy numberTPA016443353 was in force and effect on June 12, 2013.
RESPONSE:
Admit.
6. All premiums due on your policy number TPA016443353 on or before June 12, 2013,
had been timely paid by or on behalf of Plaintiff.
RESPONSE:
Admit.
7. One June 12, 2013, a collision occurred in Gregg County, Texas, between a motor
vehicle operated by Plaintiff and a motor vehicle operated by Patricia Tompldns.
RESPONSE:
Admit
8. Plaintiff timely notified Defendant of a potential uninsured/underinsured motorist claim
following the June 12, 2013, motor vehicle collision that is the basis of this suit.
RESl'ONSE:
Admit
9. Defendant has not issued a reservation of rights letter to Plai11tiff pertaining to the
uninsured/underill$ured motorist claim Plaintiff made following the June 12, 2013, motor
vehicle collision that is the basis of this suit.
RESPONSE:
Admit
1O. Based upon your investigation(s) of the June 12, 2013, motor vehicle collision that is the
basis ofthls suit, you dete1mined that Patricia Tompkins was negligent.
RESPONSE:
Deny.
I I I '
• "i '.i . i
11. If, based upon your investigatiou(s) of June 12, 2013, motor vehicle collision that is the
basis of this suit, you determined that Patricia Tompkins was negligent, you also
determined 1hat Patricia Tompkins' negligence proximately caused the collision in
question.
RESPONSE:
Deny.
12. If, based upon your invcstigation(s) of June 12, 2013, motor vehicle collision that is the
basis of this·suit, you determined that Patricia Tompkins' negligence proximately caused
the collision in question, you also determined that Patricia Tompkins' negligence and the
''
resulting collision caused at least some injury to Plaintiff. !
j.
RESPONSE: .i
il
Deny. H
i
13. Based upon your investigation(s) and/or evaluation(s) of Plaintiffs
uninsured/underinsured motorist claim, Defendant has detennined that Patricia Tompkins
was an underinsured motorist, as th.at term is defined in your policy number
TPA0\6443353.
RESPONSE:
Deny.
14. Based upon your investigation(s) and/or evaluation(s) of Plaintiff's
uninsured/underinsured motorist claim, you have determined that Plaintiff has sustained
damage in· excess of the sum of (1) Plaintiff's $5,000.00 personal injury pwtection
coverage, and (2) Patricia Tompkins' $30,000.00 limit of liability insurance.
RESPONSE:
Defendant objects to this request as it is a two pait question and vague.
Witho1Jt waiving this objection, deny.
15. On April 28, 2014, you offered $20,000.00 from Plaintiff's uninsured/underinsured
motorist coverage in addition to $5,000.00 in personal injuiy protection coverage that you
previonsly paid to Plaintiff and $30,000.00 previously paid by Ms. Tompkins' liability
insurance carrier.
RESPONSE:
Admit,
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16. Based upon your investigation(s) and/or evaluation(s) of Plaintiff's
uninsmed/underinsured motorist claim, you have determined that Plaintiff has sustained
at least $55,000.00 in damages as a result of the June 12, 2013, motor vehicle collision
between Plaintiff and Patricia Tompkins.
RESPONSE:
Deny.
17. You have failed to pay any portion of 1:b.e $20,000.00 that you offered Plaintiff on April
28, 2014.
RESPONSE;
Defendant objects to this request in that it is vague aud argumentative.
Without waiving this objection and subject thereto, Defendant admits that it has not paid
the $20,000.00 offered to Plaintiff on April 28, 2014.
18. Plail1tiff has complied with all conditions precedent to recovering from the
uninsured/underinsured motorist coverage contained in your policy number
TPAOl 6443353. .
RESPONSE: I
I
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Defendant objects to this request as it is vague,
Without waiving this objection and subject thereto, Defendant cannot admit or deny,
Reasonable inquiry has been made for Ibis infunnation and the infomiation known or
easily obtainable is insufficient to enable Defendant to admit or deny.
:
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AFFIDAVIT OF CARLOS BALIDO
STATE OF TEXAS §
§
COUNTY OF DALLAS §
BEFORE ME, the undersigned authority, on this day personally
appeared Carlos Balido, known to me to be the person whose signature
appears below, and upon his oath duly deposed and said:
"My name is Carlos Balido. I am over twenty-one (21) years of age
and suffer from no legal disabilities. I have never been convicted of a
felony offense, nor a crime involving moral turpitude. I have personal
knowledge of the facts stated herein, and they are all true and correct.
"I am licensed to practice law in the State of Texas by the Supreme
Court of Texas. My license to practice law has never been suspended or
revoked. I am the designated lead trial counsel or attorney of record for
AAA Texas County Mutual Insurance Company ("AAA") in cause number
2014-1365-A, styled Thomas Jackson v. AAA Texas County Mutual Insurance
Company, and pending in 188th Judicial District Court of Gregg County,
Texas (the "UIM suit"). As counsel for AAA in the UIM suit, I certify and
aver that the documents comprising the mandamus record are true and
AFFIDAVIT OF CARLOS BALIDO PAGE-1
I I
correct copies of the material documents from the DIM suit which were
filed with the trial court or are central to AAA' s claim the trial court abused
its discretion when it failed to both sever and abate Plaintiff Thomas
Jackson's ("Jackson") extra-contractual claims. No testimony was adduced
or presented to the trial court in relation to the November 6, 2015 hearing
on the motion to sever and abate or the October 1, 2015 hearing on the
motion to compel. True and correct copies of the material documents filed
with the trial court and which are central to the issues are attached hereto.
"With respect to these documents, I am the custodian of said
documents on behalf of my law firm and AAA. These attached documents
are kept by my law firm in the regular course of business, and it was and is
the regular course of business of my law firm for its employees or
representatives, with knowledge of the act, event, condition, opinion, or
diagnosis, recorded to make the record or to transmit information thereof
to be included in such record; and the record was made at or near the time
or reasonably soon thereafter. The records attached hereto are the original
or exact duplicates of the original.
AFFIDAVIT OF CARLOS BALIDO PAGE-2
"Further affiant sayeth not."
Carlos Balido
This instrument was sworn to and acknowledged before me on
November 16th, 2015, by Carlos Balido.
· · OTARY PUBLIC
State of Texas
AFFIDAVIT OF CARLOS BALIDO PAGE-3
AAA Texas County Mutual Insurance Company
6555 North State Highway 161
Irving, Texas 75039-2402
April 28, 2014
M. Raymond Hatcher, Esq.
Sloan, Bagley, Hatcher & Perry
101 East Whaley St.
Longview, TX 75601
RE: Insured: Thomas Jackson
Client(s): Thomas Jackson
Claim#: 011157387
Loss Date: 6/12/13
Dear Mr. Hatcher:
Thank you for your. demand letter and compact disk dated March 26, 2014 and received in our
offices on March 31, 2014. Per your letter you demand the "per person" Underinsured Motorist
(UIM) bodily injury limits in settlement of your client's injury claim. Your disk included medical
bills and records alleged to pertain to your client's care.
We have had an opportunity to thoroughly review the facts and circumstances surrounding the
referenced loss as well the medical documentation you have provided. Unfortunately, we are
unable to accept your demand.
However, in an effort to resolve this matter, we are willing io offer your client $20,000.00 UIM to
resolve his claim. This offer is additional to the $30,000.00 paid by the adverse carrier and the
$5,000.00 Personal Injury Protection (PIP) benefits previously paid.
Please present our offer to your client and contact me at the telephone number listed below so
we may discuss and conclude this matter.
Sincerely,
Fredrick M. Armour
Claims Service Representative
6555 N. State Highway 161
Irving, TX 75039
Ph#: 888.222.9208 x2218379 or 469.221.8379
NOTE: FOR YOUR INFOP.MATION AND PROTECTION, TEXAS LAW PROVIDES AS
FOLLOWS: ANY PERSON WHO KNOWINGLY PRESENTS A FALSE OR FRAUDULENT CLAIM
FORPAYMENTOFALOSSISGUILTYOFACRIMEANDMAYBESUBJECTTOFINESAND
CONFINEMENT IN STATE PRISON
Insurance provided to qualified AAA Texas merr1bers by the lnterlnsurarice Exchange of the Automobile Club and its affiliates
MR 1
JOHN D. SLOAN JR .• ,
LAUREllN K nAGLi216 S.W.3d 809 (Tex. 2006).
G. BREACH OF DUTY OF GOOD FAITH AND FAIR DEALING
12. Without adeciuate explanation or justific;ation, Defendant breached its duty of
good faith and fair dealing by denying and/or delaying payment of benefits to Plaintiff in
accordance with its insurance agreement with Plaintiff when it was reasonably clear that it
should pay said benefits to Plaintiff. Specifically, before the filing of this suit, Defendant has
determined that Plaintiffs underinsured motorist claim is worth at least $55,000.00, as evidenced
by its April 28, 2014, offer to pay $20,000.00 in addition to $5,000.00 previously paid by
Defendant in personal injury protection benefits and $30,000.00 previously paid by Ms.
Tompkins's inSurer. However, despite Plaintiff's demand for Defendant's payment of
$20,000.00 ~ the undisputed portion of the undel'insured motorist coverage - Defendoot has
refused and continues to refuse to tender this amount. Accordingly, Defendant is in violation of
Texas Insurance Code, Chapter 541, et seq. Further, Defendant has engaged in unfair claim
' See Exhibit A to Plaintiff's Original Petition amt Request for Disclosure.
2
s.,,
Exhibit B to Plaintiff's Original Petition and Request for Disclosure.
4
MR 9
-------------~---,
10/03/2014 FRI 11:'4 FAX ~03 157 ~750 Sloan Bagiey Hatcher liZJ0071011
settlement practices in violation of Texas Insurance Code §§ 541.060(a)(2)(A), 542.056,
542.057, and 542.058. As a proximate result of these actions, Plaintiff has suffered damages,
which are more fully outlined herein below.
H. VIOLA'l'ION OF THE TEXAS
DECEl'TlVE TRADE PRACTICES - CONSUMER PROTECTION ACT
13. Because Defendant violated Texas Insurance Code § 541.060(a)(2)(A) (failing to
attempt in good faith to effectuate a prompt, fair, and equitable settlement of a claim with respect
to which its liability has become reasonably clear), Defendant is deemed to have violated the
Texas Deceptive Trade Practices - Consumer Protection Act. TEX. Bus. & COM. CODE §
l 7.50(a)(4). Accordingly, Texas statutory law grants Plaintiff a private right cause of action. Id
Defendant's violation of the Texas Deceptive Trade Practices - Consumer Protection Act caused
Plaintiff damages as discussed elsewhere herein.
I. VIOLATION OF TEXAS INSURANCE CODE CHAPTER 541
14. Because Defendant violated Texas Insurance Code§ 541.060(a)(2)(A) {failing to
attempt in good faith to effectuate a prompt, fair, and equitable settlement of a claim with respect
to which its liability has become reasonably clear), Texas law grants Plaintiff a statutory private
right cause of action pursuant to the Texas Insurance Code, in addition to Plaintiff's claims
pursuant to the Texas Deceptive Trade Practices - Consumer Protection Act. Tux. INS. CODE §
541.151(1). Defendant's violation of the Tex:as Insurance Code caused Plaintiff damages as
discussed elsewhere herein.
J. PETITION FOR DECLARATORY RELIEF
15. Based on the foregoing facts, and pursuant to the policy of insurattce in force and
effect between Plaintiff and Defendant AAA Texas County Mutual Insurance Company at the
time of the wreck, Plaintiff seeks a declaratory judgment pursuant to Chapter 37 of the Tex:as
5
MR 10
--------------,-,
10/03/2014 FRI 11~35 FAX ~03 757 ~750 Slo~n B~gley H~tcher "1100~I011
Civil Practice and Remedies Code construing the contract of irumrance and declaring Plaintiff's
rights and obligations under the contract. Specifically, Plaintiff seeks findings that (1) Patricia
Tompkins is an underinsured motorist, (2) that Plaintiff is entitled to recover from Defendant
Plaintiffs damages resulting from the motor vehicle collision the subject of this suit, (3) that
Plaintiff's damages fall within the coverage afforded Plaintiff under the policy with Defendant,
and (4) a finding specifying the amount of damages, attorney's fees, interest, and court costs that
Defendant is obligated to pay.
16. Defendant AAA Texas County Mutual Insurance Company's conduct is a
proximate and produch1g cause of damages to Plaintiff. Such damages include, but are not
limited to, unpaid benefits, medical expenses, physical impainnent, lost earning capacity, and
pain and mental anguish. Such damages have occurred in the past and are likely to continue in
the future.
17. As a result of Defendant AAA Texas County Mutual Insurance Company's
conduct, Plaintiff has incurred attorney's fees through trial and appeal.
K. DAMAGES
18. As a proximate result of the collision, Plaintiff Thomas Jackson sustained serious
personal injuries, specifically including neck, back, and head injuries and injuries to his body
generally. Plaintiff believes some of his injuries are permanent in nature and have had a serious
effuct on his health and well-being. In connection with such injuries, Plaintiff Thomas Jackson
has suffered physical pain and mental anguish in the past, is suffering at the present, and, in all
reasonable probability, will continue to suffer for the rest of his life. Further, it has been
necessary for Plaintiff, Thomas Jackson, to pay or incur reasonable and necessary medical
ex:penses in the past and in all reasonable probability will incur reasonable and necessary medical
6
MR 11
--------------~---,
l0/0~/2014 FRI 11!~6 FAX ~Q~ 757 8750 Slo~n B~g1ey H~tcher 776 S.W.2d 145, 148 (Tex.
1·
1989). I
The Defendant further objects to this Request as being outside the scope of discovery as
it concerns matters that are not relevant to the irurtant litigation nor is the request
reasonably calculated to lead to the discove1y of admissible evidence pursuant to the I
!
Texas Rules of Civil Procedure.
I
The Defendant furtl1er objects to this interrogatory in that the Plaintiff bas the burden of
proof to evince that relevant to any issue in this cause. In order for the Plaintiff to
recover under their DIM claim, they must prove that the purported I
underinsnred/uninsured motorist negligently caused the accident that resulted .in tbeir j"
purported damages. See Allstate Ins. Co. v. Bonner, 51 S.W.3d 289, 291-92 (Tex.2001);
Wel/tsch v. United Servs. Auto. Ass'n, 75 S.W.3d 53, 57 (Tex.App.-San Antonio 2002,
pet. denied).
MR 17
. i'
The Defendant further objects to this request to the extent that the documents called for
therein is not relevant to any issue in tlus cause. The Plaintiff has yet to obtain judgment
establishing the liability and underinsured/uninsured status of the other
motorist. Brainard v. Trinily Universal Insurance Company, 216 S.W.3d.809 (Tex.
2006). See also Henson v. Soulhern Fmw Bureau Casualty Insurance Company, 17
S.W.3d 652, 653-54 (Tex. 2000).
The Defendant further objects as Plaintiff is not entitled to discovery of privileged
information regarding bad-faith claims so long as the insurance company's liability under
I·
ihe underlying liability claim remains undetermined. See M01yland Am. Gen. Ins. Co, v, !··
',. ;
Blackmon, 639 S.W.2d455, 457-58 (Tex.1982).
f~
Without waiving said objections, Defenda11t refers Plaintiff to photographs produced as ''··
Exhibit 1. I
Without waiving said objections, Defendant refers Plaintiff to Police Report, produced as i
I1·
Exhibit2.
I
I'
2. All written documentation of any investigation or reconstrnction of the collision (other ; i
than those conducted by govemmental/law enforcement entities or retained experts) from
which this lawsuit arises.
!
I'
RESPONSE: I ;.
The Defendant objects to this request as it is overly broad, vague and unduly j
burdensome.
The Defendant further objects to this request on the grounds it violates ihe attorney client, i
I
attorney work product, witness statement and party communication privileges,
t··
I
Defendant objects to this Request as being outside the scope of discovery as it concerns rI
matters that al'e not relevant to the instant litigation nor is the request rea%nably I.
I
calculated to lead to the discovery of admissible evidence pursuant to the Texas Rules of
!
Civil Procedure.
u
r.:
The Defendant further objects to this request to the extent that the documents called for
fuerein is not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment
establishing the liability and underinsured/uninsured status of the other
motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, I 7
S.W.3d 652, 653-54 (Tex. 2000).
The Defendant fmiher objects as Plaintiff is not entitled to discoveiy of privileged
information regarding bad-faith cltrims so long as the insurance company's liability under
MR 18
- - - - - - - - - - - - - - --,
the underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
Blackmon, 639 S.W.2d455, 457-58 (Tex. 1982).
Without waiving said objections, see documents attached.
3. All photographs, motion pictures, video recordings, maps, drawings, charts, diagrams,
measurements, surveys, or other documents concerning the events and happenings made
the basis of this lawsuit, the vehicles in question, the scene of the collision at issue, or the
urea, persons, or objects involved either made at the time of or since the collision at issue.
RESPONSE:
l
The Defendant objects to this request as it is overly broad, vague WJd onduly
burdensome.
I
1·
i
The Defendant further objects to this request on the grounds it violates the attorney client,
attomey work product, witness statement and party cormnunication privileges.
The Defendant further objects to this Request as being outside the scope of discovery as
it concerns matters that are not relevant to the instant litigation nor is the request
reasonably calculated to lead to the discovery of admissible evidence pursuant to the
Texas Rules of Civil Procedure.
The Defendant further objects to this request to the extent that the documents called for
therein is not relevant to any issne in this cause, The Plaintiff has yet to obtain judgment
establishing the liability and underinsnred/uninsured statns of the other
motorist. Brainard v. Trini01 Universal Insurance Company, 216 S.WJd.809 (fex.
2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
S.W.3d 652, 653-54 (fex, 2000).
111e Defendant further objects 8B Plaintiff is not entitled to discovery of privileged
information regarding bad-faith claims so long 8B the insurance company's liability under
the underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
Blackmon, 639 S.W.2d 455, 457-58 (fex. 1982).
Without waiving said objections, see documents attached.
4. All surveillance movies, photographs, videotapes, electronic or digiial images, or other
images of Thom8B Jackson or of the collision or scene of the collision in Defendant's or
Defendant's agents' or attorneys' possession.
RESPONSE:
The Defendant refers Plaintiff to attached police report.
MR 19
5. All incident reports (other than those created by governmental/law enforcement entities
or retained experts) and/or witness statements relating to or discussing the collision made
the basis of this lawsuit and/or the injuries that Plaintiff claims resulted from said
collision.
RESPONSE: 1:'
i
The Defendant objects to this request as it is overly broad, vague and unduly I::
burdensome.
The Defendant further objects to this request on the grounds it violates the attorney client,
attorney work product, witness statement and par(y communication privlleges.
The Defendant further objects to this Request as being outside fue scope of discove1y as
it concerns matters that are not relevant to the instant litigation nor is the request
reasonably calculated to lead to !be discovery of admissible evidence pursuant to the
Texas Rules of Civil Procedure.
The Defendant further objects to this request to the extent tl1at the documents called fo:t
therein is JJ.ot relevant to any issue in thls cause. The Plaintiff has yet to obtain judgment
es!J3.blishing the liability and underinsured/uninsurcd status of the other
motorist. Brainard v. Trinity Universal Insurance Company, 216 S. W.3d.809 (Tex.
2006). See also Henson v. Southern Farm Bureau Casualty Insurance Campany, 17
S.W.3d 652, 653-54 (Tex. 2000). 'j.,,
The Defendant further objects as Plaintiff is not entitled to discovciy of privileged
in:foI111ation regarding bad-faith claims so long as the insurance company's liability under
the underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Ca. v.
Blaclanon, 639 S.W.2d 455, 457-58 (Tex. 1982).
Without waiving said objections, see documents attached,
6. All correspondence, memoranda, reports, e-mails, fucsimile transmissions, and all other
documents evidencing communications regarding the insuraoce claim(s) or any aspect of
said claim(s) that is the subject of Ibis litigation between Defendant and its (a) adjusters, I
(b) employees, (c) officers, (d) agents,€ representatives,(!) independent adjusters (other
than those retained for !be purpose of litigation), and/or (g) independent adjusting firms
I
(otheI !ban those l'etained for the purpose of litigation).
'
!
RESPONSE:
The Defendaot objects to this request as it is overly broad, vague and unduly
burdensome.
MR 20
--------------~··-,
' I
..... -.·1
·.T - - - - - - - - - - - - - -
'
The Defendant further objects to this req11est on the grounds it violates the attorney client,
attorney work product, wit11ess statement and party communication privileges.
The Defendmt further objects to this request to the extent that it is outside the scope of
discovery a.s it regards matters that are not relevant to the subject matter of this present
lawsuit, seeks infmmation which is not relevant to the claims asse11ed by the Plaintiff,
and is not reasonably calculated to lead to the discovery of admissible evidence pursuari
to the Texas Rules of Civil Procedure.
The Defendant further objects to this request to the extent that the documents called for ;
therein is not relevant to any issue Jn this cause. The Plaintiff has yet to obtain judgment I·
establishing the liability and underinsured/uninsured status of the other i
motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.Jd.809 (Tex. r
2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17 Ii,
S.W.3d 652, 653-54 (Tex. 2000). I 1.
!r:
The Defendant furU1er objects as Plaintiff is not entitled to discovery of privileged I
I i
info1mation regarding bad-faith claims so long as the insurance company's liability under '.~:
II
(;
::-:
the underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982). IJ
II !
Without waiving said objections, see documents attached.
i
7. All documents regarding every telephone conversation with or regarding Plaintiff. I
RESPONSE: I
The Defendant objects to this request as it is overly broad, vague and unduly
burdensome.
The Defendant objects to this request on the grounds it violates the attorney client,
attorney work product, witness statement and party conununication privileges.
;:
The Defendant further objects to this request to the extent 1hat it is outside the scope of L
discovery as it regardJl matters that are not relevant to the subject matter of this present j
lawsuit, seeks info:rmation which is not relevant to the claims asserted by the Plaintiff,
and is not reasonably calculated to lead to the discovery of admissible evidence pursuant
to the Texas Rules of Civil Procedure.
The Defendmt :further objects to this request to the extent that the documents called for
therein is not relevant to any issue in tbis cause. The Plaintiff has yet to obtain judgment
establishing the liability and underinsured/uninsured status of the other
motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
MR 21
~----``--------·-,
.. I
2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
S.W.3d 652, 653-54 (Tex. 2000).
The Defendant further objects as Plaintiff is not entitled to discovery of privileged
1.
information regarding bad-faith claims so long as the insurance company's liability under
the underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
Blockmon, 639 S.W.2d455, 457-58 (Tex. 1982),
Ii
8. All docim1ents regarding the ammmt(s) set aside and/or placed in reserve regarding
Plaintiff's claim foruninsured/underinsured motmist coverage benefits herein.
I
RESPONSE: I
:
The Defendant objects to this request as it is overly broad, vague and unduly i
burdensome.
The Defendant further objects to this request to the extent that it is outside the scope of
discovery as it regards matters that are not l'<;levant to the subject matter of this present
lawsuit, seeks information which is not relevant to the claims asserted by the Plaintiff,
and is not reasonably calculated to lead to the discove.ry of admissible evidence pursuant '
to the Texas Rules of Civil Procedure.
T11e Defendant further objects to this request to the extent that the documents called for I
therein is not relevant to any issue in this cause. The Plaintiffhas yet to obtain judgment
establishing the liability and underinSlrred/uoinsured status of the other I
motorist. Broinardv. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
2006). See also Henson v. Southern Farm Bureau Casually Insurance Company, 17
S.W.3d 652, 653-54 (Tex. 2000).
The Defendant further objects as Plaintiff is not entitled to discovety of privileged
information regarding bad-faith clain1s so long as the insurance company's liability under
the underlying liability claim remains nndetermined. See M01yland Am. Gen. Ins. Co. v.
Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982).
The Defendant farther objects to this request on tile gronnds it violates tile attorney client,
attorney work product, witness statement and pm1:y co=unication privileges.
''
i
I
1·
i
I
iI
MR 22
-----~----------,
9. All non-privileged investigative repmis regarding tl1e collision made the bai;is of this
lawsuit including documents, memoranda, photographs, video recordings, movies,
statements, reports, drawings, communications, and tangible things attached to such
reports or referred to therein.
RESPONSE:
The Defendant objects to this request as it is overly broad, vague and unduly
burdensome.
The Defendant forthcr objects to thL5 request to the extent that it is outside the scope of
discovery ai; it regards matters that are not relevant to the subject matter of this present
lawsuit, seeks infonnation which is not relevant to the claims asserted by the Plaintiff, r
and is not reasonably calculated to lead to the discovery of admissible evidence pm·suant
to the Texas Rules of Civil Procedure.
..
The Defendant forther objects to this rec1uest to the extent that the documents called for '
therein is not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment
establishing the liability and underinsured/uninsured status of the other
motorist. Bra/n(JJ'd v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
2006). See also Henson v. Southern Farm Bureau Casually Insurance Company, .17
S.W.3d 652, 653-54 (Tex. 2000).
The Defendant fU.rther objects as Plaintiff is not entitled to discovery of privileged "
infonnation regarding bad-faith claims so long as tl1e insurance company's liability under
the underlying liability claim remains undetennined. See Maryland Am. Gen. Ins. Co. v.
Blackmon, 639 S.W.2d455, 457-58 (Tex. 1982).
Without waiving said objections, the Defendant refers Plaintiff to documents attached.
10. Complete and legible photocopies or audible recordings of every written or oral statement
obtained by yon or on your behalf from any person designated by any party as having
knowledge ofrelevant facts pursuant to Texas Rule of Civil Procedure 194.2(e).
RESPONSE:
Defendant will supplement response.
MR 23
11. If already produced herein, a complete copy of every primary, umbrella, and excess
insurance policy or agreement, including all declaratioru page(s), endorsements,
ame11dments, riders, and attachments iI1 effect when the subject collision occurred and
providing coverage to Plaintiff for injuries suffered in 1he subject collision.
RESPONSE:
The Defendant objects to 1his request to the extent that it is outside the scope of discovery
as it regards matters that are not relevant to the subject matter of this present law:mit,
seeks information which is not relevant to the claims asserted by the Plaintiff, and is not
reasonably calculated to lead to the discoveiy of admissible evidence pursuant to the
Texas Rules of Civil Procedure.
Defendant will supplement response.
12. All written docwuents in Defendant's possession signed by or on behalf of Plaintiff.
RESPONSE:
None.
13. All non--waiver agreements, reservation of right~ letters, and other documents or
comm11nications regardir1g any contrnctual obligation owed to you by Plaintiff or
condltion precedent to recove1y wi1h which Plaintiff must comply.
RESPONSE:
The Defendant objects to this request as it. is overly broad, vague and unduly
burderuome.
The Defendant :further objects to this request to the extent that it is outside the scope of
discove1y as it regards matters that are not relevant to the subject Jnatter of this present
lawmit, seeks information which is not relevant to the claims asserted by the Plaintiff,
and is not reasonably calculated to lead to the discovery of admissible evidence pursuant
!
to the Texas Rules of Civil Procedure.
The Defendant further objects to this request to 1he extent that the documerds called for
therein is not relevant to any iss1ie in this cause. The Plaintiff has yet to obtain judgment
establishing the liability and underinsured/uninsured status of the other
motorist. Brainardv. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
2006). See also Henson v. Southern Farm .Bureau Casualty Insurance Company, 17
S.W.3d 652, 653-54 (Tex. 2000).
The Defendant further objects as Plaintiff is not entitled to discovery of privileged
info1mation regarding bad-faith claims so long as the insurance company's liability under
MR 24
the underlying liability claim remains undetermined. See Marylatui Am. Gen. Ins. Co. v.
Blackmon, 639 S.W.2d 455, 457~58 (Tex. 1982).
The Defendant further objects to this request on the grounds it violates the attorney client,
attorney work product, witness statement and party communication privileges.
14. All documents relating to any initial determination, temporary determination, tentative l.i
determination, or final determination regarding whether Plaintiff's claim herein is
i'
payable or not payable, ;
RESPONSE:
111e Defendant objects to this request as it is overly broad, vague and unduly
burdensome.
The Defendant furtber objects to this request on the gronnds it violates the attorney client,
attorney work product, witness statement and party communication plivileges.
The Defendant further objects to this request to the extent that it is outside the scope of
discovery as it regards matters that are not relevant to tbe subject matter of this present
lawsuit, seeks information which is not relevant to the claims asserted by the Plaintiff;
and is not reasonably calculated to lead to the discovery of admissible evidence pursuant
to the Texas Rules of Civil Procedure.
The Defendant furtber objects to this interrogatory in that the Plaintiff has the burden of
proof to evince that relevant to any issue in this cause. In order for the Plaintiff to
recover under their DIM claim, they must prove that the pmported
underinsured/uninsnred motorist negligently caused the accident that resulted in their
purported dan1ages. See Allstate Ins. Co. v. Bonner, 51 S.W.3d 289, 291-92 (Tex.2001);
Welltsch v. United Servs. Auto. Ass'n, 75 S.W.Jd 53, 57 (Tex.App.-San Antonio 2002,
pet denied). II
The Defundant further objects to this request to the extent that the documents called for I
therein is not relevant to any ill sue in this cause. The Plaintiff has yet to obtain judgment I
~ .
establishing the liability and underinsured/tu1insured status of the other
motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
I
.: '
2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
S.W.3d 652, 653-54 (Tex. 2000).
Without waiving said objections, please see attacheddoclllllenis.
MR 25
--------------,
.. .; . _.. ..
: .' '
15, All documents and testimony regarding Plaintiff, Patricia Tompkins, or any aspect of the
collision made the subject oflhis h1wsuit that Defendant has obtalned through the use of
subpoenas and/or depositions on wdtten questions. (Plaintiff will pay a reasonable fee for
photocopies ofresponsive documents.)
i.
RESPONSE:
Plaintiff should be in possession of all medical records and other records pe1iaining lo
Plaintiff. If and when Defendru1t obtains such records, Defendant will make these
records available to the Plaintiff for inspection upon reasonable notice and will furnish
copies to any party who requests copies at that party's expense pursuant to TRCP Rule
205.3(e). Additionally, Plaintiff will be given an equal opportunity to obtain these records
at the time they are made available to !bis Defendant by the records service.
!
16. To the extent not already produced by either pai:ty herein, all medical and/or billing
,.
i'
records regarding ThomM Jackson, whether obtained before or since the :filing of this
lawsuit (Plfilntiff will pay a reasonable fee for photocopies of responsive documents.)
RESPONSE:
!.
Plaintiff should be in possession of all medical records and other records pertaining to
Plaintiff. If and when Defendant obtains such records, Defendant will make these
I:
records available to the Plaintiff for inspection upon reasonable notice and will furnish
copies to any party vvho requests copies at that pru·ty' s expense pursuant to TRCP Rule
205.J(e), Additionally, Plaintiff will be given an equal oppmtunity to obtain these records
at tbe time they are made available to this Defendant by the records service.
17, To the extent not already produced by Defendant herein, all documents obtained by or on
behalf of Defendant through the nse of an authorization furnished to Defendant by
Plaintiff.
RESPONSE:
Plaintiff should be in possession of all records pertaining to Plaintiff. IT and when
Defendant obtains such records, Defendant will make these records available to the
Plaintiff for inspection upon reasonable notice and will furnish copies to any pm:ty who
requests copies at that party's expense pursuant to TRCP Rule 205.3(e), Additionally,
Plaintiff will be given an equal opportunity to obtain these records at the tirne they are
made available to this Defendant by fue records service.
MR 26
. ..
---,,.-~----------~·~---
··· ... ·: ~ . ··.• .,.·, .
18. All documents, records, repmts, notations, and/or memoranda regarding the Plaintiff
from persons and/or entitles that compile information regarding bodily injury claims,
health insurance claims, liability/property/casualty insurance claims, worker's
co111pensation claims, and other :insurance claims, including but not !imi:ted to the
Insurance Services Office ("ISO"), Southwest Index Bureau, and all similar persons or
entities.
RESPONSE:
The Defendant objects to this request as it is av.orly broad, vague and unduly
burdensome.
The Defendant further objects to this request 011 the gro1inds it violates the attorney client,
attorney work produc~ witness statement and party communication privileges.
The Defendant further objects to this reqllest to the extent that it is outside the scope of
discovery as it regards matters that arc not relevant to the subject matter of this present
lawsuit, seeks informati011 which is not relevant to the claims asserted by the Plaintiff,
and is not reasonably calculated to lead to the discoveiy of admissible evidence pursuant
to the Texas Rules of Civil Procedure.
Defendant asse1ts its pdvileges relating to computer programs, manuals, and database
information to the extent that it constitutes Trade Secrets and other proprietary
information. See Tex. R. Civ. Evidence 507; Tex. R. Civ. P. 76(a)(2)(c); Computer
Assoc. Int. 7v. Altai, Inc., 918 S.W.2d453, 455 (Tex.1996), RESTATEMENT (213) OF
TORTS - 757, comment (b). Plaintiff has the burden of establishing the information
reqi1ested herein is necessary for a fuir adjudication of th.is claim which bas not been
established to date. Defendant asserts that the benefit that Plaintiff might obtain from this
infmmation, if any, doe s not and cannot outweigh harm of disclosure to the defendant.
See In re Leviton Mfg. Co. inc., 1 S.W.3d 898, 902 (Tex. App.-Waco 1999, odg.
proceeding).
19. All peer reviews, audits, medical summaries, memoranda, notes, letters, and other
documents relating to or compiled from the medical records that Plaintiff has submitted
for payment pursuant to .the policy at issue herein and/or injuries that Plaintiff claims
were caused by the collision made the basis of this lawsuit.
RESPONSE:
The Defendant objects to this request as it is overly broad, vague and unduly
burdensome,
The Defendant further objects to this request on the grounds it violates the attorney client,
attorney work product, witness statement and party communication privileges.
MR 27
The Defendant futther objects to this request to the extent that it is outside the scope of
discovery as it regards matters that are not relevant to the subject matter of this present i
I
lawsltlt, seeks information which is not relevant to the claims asse1ted by the Plaintiff,
and is not reasonably calculated to lead to the discovery of admissible evidence pursuant I
I
I
I'
i
to the Texas Rules of Civil Procedure.
I,.
The Defendant farther objects to this request to the extentthat the doclllllents called for I I'
therein is not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment
t
l r·
l·
i•
establishing the liability and underinsured/m1insured status of the other 1I
motorist. Brainard v. Trinity Universal Insurance Company, 216 S. W.3d.809 (Tex.
2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17 I 1·
S.W.3d 652, 653-54 (Tex. 2000). I
I
I
The Defendant farther objects as Plaintiff is not entitled to discovery of privileged I ,.
information regarding bad-faith claims so long as tbe insurance company's liability under
the underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
Blackmon, 639 S.W.2d455, 457-58 (Tex. 1982).
I
I
20. All liability work-ups or reports relating to Plaintiff's claim for uninsured/underinsured I
I
motorist coverage benefits. I
RESPONSE;
I'
i
The Defendant objects to thls request as it is overly broad, vague and m1dnly
burdensome.
The Defendant ftu:fuer objects to this request on the grounds it violates the attorney client, I
attomey work product, witness statement and party conununication privileges.
The Defendant ftuiher objects to this request to the extent that it is outside the scope of
discovery as it regards matters that are not relevant to the subject matter of thi~ present
lawsuit, seeks infurmation which is not relevant to the claims asserted by the Plaintiff,
and is not reasonably calculated to lead to the discovery of admissible evidence pursuant !
to the Texas Rules of Civil Procedure. "!.
l
,.
The Defendant farther objects to thls request to the extent that the documents called for !
therein 1' not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment
establishing the liability and underinsured/uninsm:ed status of the other
motorist. Brainardv. Trinity Unrversal Insurance Company, 216 S.W.3d.809 (Tex.
2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
S.W.3d 652, 653-54 (Tex. 2000).
The Defendant farther objects as Plaintiff is not entitled to discovery of privileged
infonnation regarding bad-faith claims so long as the insurance company's liability under
MR 28
.. :.·... -i ' ; .. I ,·_- ......... "*'"•~·" ••• ,. • ' ! •i < •• ;,
the underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
Blackmon, 639 S.W.2d455, 457-58 (Tex. 1982).
21. All doc1unents relating to your use, if any, of computer software programs in reviewing,
analyzing, and/or evaluating claims of injury in motor vehicle collisions during 2013 and
2014.
RESPONSE:
The Defendant objects to this request on the grounds it violates the attorney client,
attorney work produCt, witness statement and party communication privileges.
The Defendant further objects to this request as it is overly broad, vague and unduly
b11rdensome.
The Defendant further objects to this request to the extent that it is outside the scope of
discovery as it regards matters that are not relevant to the subject matter of this present
lawsuit, seeks information wbich is not relevant to the claims asserted by the Plaintiff,
and is not reasonably calculated to lead to lhe discovery of admissible evidence pursuant
to lhe Texas Rules of Civil Procedure.
i
TI1e Defendant asserts its privileges relating to computer programs, manuals, and I
database information to the extent that it constitutes Trade SeCiets and oilier proprietary I
information. See Tex. R. Civ. Evidence 507; Tex. R. Civ. P. 76(a)(2)(c); Computer
Assoc. Int. 7 v. Altai, Inc., 918 S.W.2d 453, 455 (Tex. 1996), RESTATEMENT Q.13) OF
TORTS - 757, comment (b). Plaintiff bas the burden of establishing tbe information
requested herein is necessary for a fair adjudication of thls claim which has not been
established to date. Defendant asserts that the benefit that Plaintiff might obtain from this
information, if any, doe s not and cannot outweigh harm of disclosure to the defendant.
See In re Leviton Mfg. Co. Inc., 1 S.W.3d 898, 902 (Tex. App.~Waco 1999, orig.
proceeding).
The Defendant further objects to this request to the extent that the documents called for
therein is not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment
establishing the liability and underinsured/uninsuredstatus of the other
motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
2006). See also llenson v. Southern Farm Bureau Casualty Insurance Company, 17
S.W.3d 652, 653-54 (Tex. 2000).
111e Defendant further objects as Plaintiff is not entitled to discovery of privileged
infurmation regarding bad-faith claims so long as tlle insurance company's liability under
"•
the underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982).
MR 29
. i
• • :.J I. • ..• ''. ··1
22. All documents relating to your use, if any, of computer software programs in reviewing,
a11alyzing, and/or evaluating Plaintiff's claims of injury in the motor vehicle collision that
forms the basis of this lawsuit
RESl'ONSE:
The Defendant objects to this request on the gro11Dds it violates the attorney client,
attorney work product, witness statement and party colillJlunication privileges,
The Defendant further objects to this request as lt is overly broad, vague and unduly
burdensome.
l11e Defendant further objects to this request to the extent that lt is outside the scope of
discovery as it regards matters that are not relevant to the subject matter of this present
lawsuit, seeks infom1ation which is not relevant to the claims asserted by the Plaintiff,
and is not reasonably calculated to lead to the discovery of admissible evidence pursuant
to the Texas Rliles of Civil Procedure,
Defendant asserts its p1ivileges relating to computer progran1S, manuals, and database
infonnation to the extent that it constitutes Trade Secrets and other propdetary
information. See Tex. R. Civ. Evidence 507; Tex. R. Civ. P. 76(a)(2)(c); Computer
Assoc. Int. 7 v. Altai, Inc., 918 S.W.2d 453, 455 (Tex, 1996), RESTATEMENT (213) OF
TORTS - 757, comment (b), Plaintiff has the burden of establishing the information
requested herein is necessary for a fair adjudication of this claim which has not been
established to date. Defendant asse1ts that the benefit that Plaintiff might obtain from this
information, if any, doe s not and cannot outweigh harm of disclosure to the defendant.
See In re Levi/on Mfg. Co, Inc., 1 S.WJd 898, 902 (Tex. App.-Waco 1999, orig.
proceeding).
The Defendant further object5 to 1hls request to 1he extent that the documents called for
therein is not relevant to any issue in this cause. The Plaintiffhas yet to obtainjndgment I
I·
establishlng1he liability and underinsiJredfuninsured status of the other 1.
motorist, Brainardv. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex. I
!
2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
S.WJd 652, 653-54 (Tex. 2000).
The Defendant further objects as Plaintiff is not entitled to discovery of privileged
information regarding bad-faith claims so long as 1he insurance company's liability under
the underlying liability claim remains undetermined. See Maryland Am. Gen Ins. Co. v. ,.
Blackmon, 639 S.W.2d 455, 457-58 (Tex, 1982). !
'
MR 30
_.,
. · .... ~:-·-- < !
23, All documents containing your policies, procedures, processes, and/or mles used by your
employees to assist in their evaluation of uninsured/underinsured motorist claims.
RESPONSE:
The Defendant objects to this request as it is overly broad, vague and unduly
burdensome.
The Defendant further objects 1D this request on the grounds it violates tl1e attorney client,
attorney work product, witness statement and party communication privileges.
The Defendant further objects to tbis request to the extent tbat it is ontside the scope of
discovery as it regards matters tbat are not relevant to the subject matter of 1his present
lawsuit, seeks information which is not relevant to 1he claims assetted by tbe Plaintiff, i
I.
;
and is not reasonably calculated to lead to tlie discovery of admissible evidence pursuant
to 1he Texas R11les of Civil Procedure.
The Defendant further objects to tbis request to the extent tbat the documents called for
therein is not relevant to any issllf) in tbis cause. The Plaintiff has yet to obtainjudg.tllent
establishing the liability and underins1n-ed/uninsured status of!he other
motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
S.W.3d 652, 653-54 (Tex, 2000).
The Defendant further objects as Plaintiff is not entitled to discovery of privileged
information regarding bad-faith claims so Jong as fue insurance company's liability under
the underlying liability claim remains undetermined. See Maryland Am, Gen. Ins. Co, v.
Blackmon, 639 S.W.2d 455, 457-58 (Tex, 1982).
24. All dociunents containing your policies, procedures, processes, and/or rnles 1IBed by your
employees to assist in their evaluation of antomo bile collision bodily injury claims.
RESPONSE:
The Defendant objects to this request as it is overly broad, vague and unduly
burdensome.
The Defendant further objects to this request on the grounds it violates the attorney client,
attorney work product, witness statement and party comm\!Jlication privileges.
The Defendant fiuther objects to this request to the extent that it is outside the scope of
discovery as it regards matters that are not relevant to the subject matter of this present
lawsuit, seeks information which is not relevant to the claims asserted by the Plaintiff,
MR 31
. ., ;-:.
and is not reasonably calculated to lead to the discovery of admi'lsible evidence pursuant
to the Texas Rules of Civil Procedure.
The Defendant further objects to this request to the extent that the documents called for
the1·ein is not relevant to auy issue in fuls caru;e. The Plaintiff has yet to obtain judgment
establishing the liability and underinstn·ed/uninsurcd status of the other
motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Iex.
2006). See also Henson 11. Southern Farm Bureau Casualty Insurance Company, 17
S.W.3d 652, 653-54 (Tex. 2000).
l
TI1e Defendant further objects as Plaintiff is not entitled to discovery of privileged i'
info1mationregarding bad-faith claims so long as the insurance company's liability under
the underlying liability clalm rcmalns undetermined. See Maryland Am. Gen. Ins, Ca. v.
Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982).
25. Pursuant to Texas Rule of Evidence 609(f), all documents supporting each criminal
I
conviction of any person identified by any party herein as having knowledge of relevant
facts that you intend to use for impeachment
RESPONSE:
The Defendant does not have any documents in its possession, custody or control
responsive to this request.
26. All reports, memoranda, and other documents related to your evaluation of any claim for
be1iefits made by Plaintiff other than the claun at issue herein.
RESPONSE:
The Defendant objects to this request as it is overly broad, vague and unduly
burdensome.
The Defendant further objects to this request on the grounds it violates the attorney client,
attorney work product, witness statement and party communication privileges.
The Defendant further objects to ·this request to the extent that it is outside the scope of
discovery as it regards matters that are not relevant to fhe subject matter of this present
lawsuit, seeks information which is not relevant to the claims asserted by fhe Plaintiff,
and is not reasonably calculated to lead to fhe discovery of admissible evidence pursuant
to the Texas Rules of Civil Procedure.
The Defendant further objects to this request to the extent that the documents called for
thereil1 is not relevant to any issue in this cause. The Plaintiff has yet to obtain.judgment
establishing the liability and underinsured/uniusured status of the other
MR 32
I - I
.. -.·1
motorist. Brainardv. Trinity Universal lmmrance Company, ;>.16 S.W.3d.809 (Tex,
2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
S.W.3d 652, 653-54 (Tex. 2000).
(·.
The Defendant further objects as Plaintiff is uot entitled to discovery of privileged '·
infonnation regarding bad-faith claims so long as the insurance company's liability under
the underlying liability claim remains undetermined, See Maryland Am. Gen. Ins. Co. v.
Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982).
27. All documents relating to every initial determination, temporary detem1ination, tentative
determination, or final determination regarding whether any of Plaintiff's claims other
than that at issue herein Wa'l payable or notpayable.
RESPONSE: l:
!
The Defendant objects to this request as it is overly broad, vague and unduly
burdensome.
TI1e Defendant further objects to this request on the groui1ds it violates fue attorney client,
attorney work product, witlless statement and party communication privileges.
,.
The Defendant further objects to this request to the extent tbat it is outside the scope of
,
discovery a'l it regards matters that are not relevant to 1he subject matter of this present
lawsuit, seeks information which is not relevant to the claims a'lserted by tbe Plaintifl;
and is not rea'lonably calculated to lead to the discovery of admissible evidence pursuant
to the Texas Rules of Civil Procedure.
The Defendant further objects to tlris request to the extenttbatthe documents called for
therein is not releva11t to any issue in this cause. The Plaintiff has yet to obtain judgment
establishing the liability and uuderirumred/uninsured status of the other
motorist. Brainardv. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
2006). See also Henson v. Southern Farm Bureau Casually Insurance Company, 17
S.W.Jd 652, 653-54 (Tex. 2000).
The Defendant fiuther objects a~ Plaintiff is not entitled to discovery of privileged
infom1ation regarding bad-faith claimll so long as the insurance company's liability under
the rmderlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
'·
Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982).
Without waiving said objections, please see attached documents.
MR 33
I I c '
·1 ,J I . ·:
:,
'i:
I.
I'
Ij·
28. All documents regarding and/or discussing your refusal to pay 1hc $20,000.00 that you
offered on April 28, 2014.
RESPONSE:
The Detenda11t objects to this request as it is overly broad, vague mid Ullduly
burdenson1e.
The Defendant futther objects to this request 011 the grollllds it violates the attorney clie11t,
attorney work product, witness statement and party coll1lliunication privileges.
The Defe11dai1t further objects to this request to tl1e extent that th.e documents called for
tl1erei.n is not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment
establishing the liability and underinsured/uninsured statl1s of the other
motorist. Brainardv. Trinity Universal Insurance Company, 216 S,W.3d.809 (Tex.
2006). S.e also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
S.W.3d 652, 653-54 (Tex. 2000).
The Defendmit furfuer objects as Plaintiff iB not entitled to discovery of privileged
information regarding bad-faith claims so long as the insurance company's liability under
the underlying liability claim remains undetermined. See Maryland Am. Gen. In.<. Co, v.
Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982).
The Defe11dmit further objects to this rnquest to the extent that it is outside 1he scope of
discovery as it regards matters that are not relevmit to the subject matter of this present
lawsuit, seeks information which is not relevant to the claims asserted by the Plaintiff,
and is not reasonably calculated to lead to the discovery of admissible evidence pursuant
to the Texas Rules of Civil Procedure.
WithoLtl waiving said objections, please see attached documents.
29. All documents reflecting, regarding, and/or discussing premium payments made by
Plaintiff fur the automobile insurance policy in effect when the collision that is the r
subject of this lawsuit occurred.
RESPONSE: i
],
Tue Defendant objects to this request as it is overly broad, vague arid unduly ii
burdensome.
,.I·
I'·
The Defendant further objects to thiB request on the grounds it violates the attorney client, "1·
:1
attorney work product, witness statement and party communication privileges, 1!I'
!!
The Defendant further objects to thiB request to the extent that it is outside the scope of !!
discovery as it regards matters that are not relevant to the subject matter of 1his present ·'
MR 34
I '
..
---.-~------ci-.-c,-ccc-.-~--.-... :er
..,-..,.,,. .-~
...----~.~...,.,....,..``----~----~...:::r:·.:-:~c--··--;~-.
lawsuit, seeks information which is not relevant to the claims asse1tecl by the Plaintiff,
and is not reasonably calculated to lead to the discovery of admissible evidence pursuant
to the Texas Rules of Civil Procedure.
The Defendant further objects io this request to the extent that the documents called for
therein is not relevant to any issue in this caase. The Plaintiff has yet to obtain judgment
establishing the liability and underinsured/uninsured status of the other
motorist. Brainardv. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
S.W.3d 652, 653-54 (Tex. 2000).
The Defendant further objects as Plaintiff is not entitled to discovery of privileged
info1mation regarding bad-faith claims so long as the insurance company's liability under
the underlying liability claim remains undetennined. See Maryland Am. Gen. Ins. Co. v.
Blackmon, 639 S.W.2d455, 457"58 (Tex. 1982).
30. All documents necessary to determine the name, address, telephone number, ilnmediate
SLtpervisor, and current employer of all of Defendant's adjusters, employees, agents,
aod/or representatives that have -reviewed Plaintiffs claim :file from a claims handling or
claims review standpoint.
RESPONSE:
The Defendant objects to this request as it Js overly broad, vague and unduly
burdensome.
The Defendant further objects to this reqQest on the grounds it violates the attorney client,
attorney work product, witness statement and party commllnication privileges.
The Defendant further objects to this request to the extent that it is outside the scope. of
discovery as it regards matters that are not relevant to the subject matter of this present
lawsuit, seeks inforn1ation which is not relevant to the clain1s asserted by tlle Plaintiff,
and is not reasonably calculated to lead to the discovery of admissible evidence pursuant
to the Texas Rules of Civil Procedure.
The Defendant ftuther objects to this request to tlle extent that the documents called for
therein is not relevant to any issue in this cause. The Plaintiff has yet to obtainjndgment
establishing the liability and uuderinsured/uuinsured status of the other
motorist. Brainard v. Trinity Universal Insurance Company, 216 S. W.3d.809 (Tex.
2006). See also Hemon v. Southern Farm Bureau Casualty Insurance Company, 17
S.W.3d 652, 653-54 (Tex, 2000).
The Defendant further objects as Plaintiff is not entitled to discovery of privileged
information regarding bad-faith claiffiB so long as the insurance company's liability under
MR 35
···-·.·1
I
fue underlying liablli1y claim remains undetermined. See Maryland Am. C'rtm. Ins, Co. v.
Blackmon, 639 S.W.2d 455, 457-58 (Tex, 1982).
31. All documents and/or materials pertaining to any negotiations for settlement or offers of
settlement that were compiled or created prior to the time of the filing of this lawsuit. L
l
L·
RESPONSE:
I
The Defendant objects to this request as it is overly broad, vague and unduly I
burdensome.
The Defendant further objects to this request an the grounds it violates the attorney client,
attorney work product, witness statement and party communication privJleges.
lile Defendant further objects to this request to the extent that it is outside the scope of
discovery as it regards matters that are not relevant to the subject matter of this present
lawsuit, seeks infonnation which is not relevani to the claims asselted by the Plaintiff,
and is not reasonably calculated to lead to the discove1y of admissible evidence pursuant
to the Texas Rules of Civil Procedure.
The Defendant futther objects to this request to the extent that the documents called for
therein is not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment
establishing fue liability and underinsured/uninsured status of the other
motorist. Brainardv. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
2006). See also Hen,wn v. Southern Farm Bureau Ca.Yua/ty Jnsw·ance Company, 17
S.W.3d 652, 653-54 (Tex. 2000).
The Defendant fuither objects as Plaintiff is not entitled to discovery of privileged
infonnation regarding bad-faith claims so long as the insurance company's liability under
the underlying Jiabili1y claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982).
Without waiving said objections, please see attached. I
32. All documents, reports, or investigations relied upon by Defendant in denying or delaying II
payment of ru1y benefits to Plaintiff related to the claim thl\t is the subject of this lawsuit.
RESPONSE:
I
The Defendant objects io this request as it is overly broad, vague and nnduly
burdensome.
The Defendant further objects to this request 011 the grounds it violates the attorney client,
attorney work product, wit11ess statement and party communication privileges.
MR 36
-----~---------·-,
-· ! .
The Defendant furthel' objects to this request to tbe extent that it is outside the scope of
discovery as it regards matters that are not relevant to the subject matter of this present
lawsuit, seeks information whlch is not relevant to the claims asserted by the Plaintiff,
and is not reasonably calculated to lead to the discovery of admissible evidence pursnant
to the Texas Rules of Civil Procedure.
The Defendant further objects to this intmogatory in that the Plaintiff has the burden of
proof to evince that relevant to any issue in U1is cause. In order for the Plaintiff to
recover under their U1M claim, they must prove that the purported
llJlderinsured/uninsured motorist negligently caused the accident that resulted in their
purported damages. See Al/stale Ins. Co. v. Bonner, 51 S.W.3d 289, 291-92 (Tex.2001);
Wellisch v. United Servs. Auto. Ass'n, 75 S.W.3d 53, 57 (Tex.App.-San Antonio 2002,
pet. denied).
The Defendant furilier objects to this request to !he extent that the documents called for
therein is not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment
e&tablishing the liability and underinsured/uninmred status of the other
motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
S.W.3d 652, 653~54 (Tex. 2000).
The Defendant further objects as Plaintiff is not entitled to discovery of p1ivileged
information regarding bad-faith claims so long as the insurance company's liability under
the underlying liability claim remains undetermined. See Maryland A1n Gen. Ins. Co. v.
Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982),
33, All documents regarding any contract that you have with any independent adjuster who
performed any service on your behalf related to Plaintiff's clairuhetein.
RESPONSE:
The Defendant objects to this request " it is overly broad, vague and unduly ~-
bmdensotne.
The Defendant further objects to this request on the grounds it violates the attorney client,
attorney wol'!c product, witness statement and party colll1Il1lnication p1ivileges.
The Defendant further objects to thIB rnquest to !he extent that it is outside the scope of
discovery as it regards matters that are not relevant to the subject matter of this present
lawsuit, seeks information whlch is 11ot relevant to the claims asserted by the Plaintiff,
and is not reasonably calctilated to lead to the discovery of adtnissible evidence pursuant
to the Texas Rules of Civil Procedure.
MR 37
.·,
The Defendant further objects to this rec1uest to the extent thirt the documents called :for
therein is not relevant to any issue iu this cause. The Plaintiff has yet to obtain judgment
establishing the liability and undcrinsured/uninsured status of the other
motorist Brainard v. Trinity Universal lnswance Compar!JI, 216 S.W.3d.809 (Tex.
2006). See also Henson v. Soulhern Farm Bw·eau Casualty Insurance Company, 17 I
S.W.3d 652, 653-54 (Tex. 2000). i
The Defendant further objects as Plaintiff is not entitled to discovery of p1ivileged
information regarding bad-faith claims so long as t11e insurance company's liability under
the underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co, v.
Blackmon, 639 S.W.2d455, 457-58 (Tex. 1982).
34, All documents described or utilized in responding to Plaintiffs Interrogatories, Requests
for Production, and Requests for Admission.
RESPONSE:
The Defendant objects to this request as it is overly broad, vague and unduly
burdensome.
The Defendant further objects to this request on the grounds it violates the attorney client,
attorney work. product, witness statement aud party communication privileges.
The Defendant fmiher objects to this request to the extent trurt it is outside the scope of
discovery as it regards matters that are not relevant to the subject matter of this present
lawsuit, seeks information which is not relevant to the claims asserted by the Plaintiff,
and is not reasonably calculated to lead to the discovery of admissible evidence pursuant
to the Texas Rules of Ci~il Procedure,
The Defendant further objects to tbis request to the extent that the doctunents called for
therein is not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment
establishing the liability and tmderinsured/uninsured status of the other
i '.
motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex. !
2006). See also Henson v. Southern Farm Bureau Casual!y Insurance Company, I 1
iI.
,.
S.W.3d 652, 653-54 (Iex, 2000).
The Defendant further objects as Plaintiff is not entitled to discovery of privileged
information regarding bad-fhlth clallnB so long as the insurance company's liabilify under
the underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
Blackmon, 639 S.W.2d 455, 457-58 (Tex, 1982).
Withont waiving said objections, please see attached documents.
MR 38
-------------~,-------,
-..~--~-.
-: :j. -``.~.:·.··. .
CAUSE NO. 201-1365-A
THOMAS JACKSON, § JN THE DISTRICT COURT OF
Plaintiff §
§
vs. § 188th JUDICIAL DISTRICT
§
AAA TEXAS COUNTY MUTUAL §
INSURANCE COMPANY §
Defendant. § GREGG COUNTY, TEXAS
l>EFENDANT'S OB.JECTlONS and ANSWERS TO
PLAtNTIFF TIIOMAS .JACKSON'S FlRST SET OF INTERROGATORIES
TO: Thomas .Jack$on, Plaintiff, by and through bis altomeys of record, M. Raymond Hatcher
and Alan J. Robertson, Sloan, Bagley, Hatcher & Perry Law Firm, 101 East Whaley
Street, Longview, Texas 75601.
COMES NOW AAA Texas County Mutual Insurance Company, Defendants lnthe above
numbered and styled cause, and serves its Objections and Answers to Plaintiff's First Set of
Intenogatories, in accordance with the Texas Rules of Civil Procedure.
Respectfully submitted,
WALTERS, BALIDO & CRAJN, L.L.P.
/k;~
CARLOS A. BALlDO
State Bar No. 01631230
Meadow Park Tower, Suite 1500
10440 North Central Expressway,
Dalli.s, TX 75231
Tel: 214-749-4805
Fax: 214-760-1670
cm1os.balido!i4wbclaw1irm.com
ATTORNEY FORDEFENDANf
MR 39
----, ---------------·-,
I ., ; ·.·
"f<,..
.. ,.,
..,,.;.;; ...
CERTIFICATE OF SERVICE
This is to certify that a true and conect copy of the foregoing document hru; been mailed,
faxed, or band delivered to all parties of record, in compliance with Rule 21a of the Texas Rules
of Civil Procedure, on December~. 2014.
Via First Cf(lss U.S. Mail
M. Raymond Hatcher
Alan J. Robertson
Sloan,. Bagley, Hatcher & Peny Law Firm
101 East Whaley Street
Longview, Texas 75601
CARLOS A. BALIDO
MR 40
' I
I ... .-.i !,~-· ;_ ....
•.,·,'',·1'. . ··,
!~.;E'~J-· . I
The Defendant obJccts generally to the Definitions and Instructions set forth at the beginning of
this written discovery request for the reason that they are overly broad, unduly burdensome, and
harassing. Furthet, the Defendant objects to i:hese Definitions and Instructions for the reason that
there is no provision in tl>e Texas Rules of Civil Procedme requiring a party to abide by such
definitions and instructions. TI1e Defendant also objects to the Definitions and fosn-11ctions to the
extent that they seek to impose a greater burden and obligation on the Defendant than is
pcrmissible under the Texas Rules of Civil Procedm·e.
Without waiving or limiting the foregoing general. objection, the Defendant specifically objects
to Plaintiff's discovery as follows:
OBJECTIONS AND ANSWERS TO PLAINTIFF'S
FIRST SET OF INTERROGATORIES
l. Identify each person answering these interrogatories, supplying information, and/or
assisting in any way with tl1e preparatinn of the answers to these interrogatories and/or
the responses to Plaintiff's Requests for Production and/or Requests for Admission.
ANSWER:
The Defendant objects to this interrogatory to the extent that it is outside the scope of
discove1y as it concerns matters that are not relevant to the subject matter of this present
lawsuit, it seeks informati011 which is not relevant to the clainrn asserted by the Plaintiff,
and is not reasonably calculaied lo lead to the discove1y of admissible evidence pursuant
to the Texas Rules of Civil Proce75 S.W.3d 53, 57 (fex.App.-Sau Antonio2002,
pet. denied)
The Defendant further objects to this request to the extent fuat the documents called for
therein is not relevant to any iss11e in this cause. Tue Plaintiff has yet to obtain judgment
establishlligthe liability and underinsured/uninsured status of the other
motorist. Brainard v. Trinity Universal lnrorance Company, 216 S.W.3d.809 (Tex.
2006). See also Henson v. Southern Fann Bureau Casualty Insurance Company, 17
S.W.3d 652, 653-54 (Tex. 2000).
MR 42
----------------~-,
I ......
f``~_;.
... ~·-:. ~ ·•·.· .
Defendant objects as Plaintiffs are not entitled to discovery of ptivileged information
regarding bad-faith claims so long as the insurance company's liability under the
undeJ:lying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
Blackmon, 639 S.W.2d 455, 457-58 (fex. 1982).
Without waiving said objections, the Defendant refers Plaintiff to documents produced.
4. Jf you, your attorneys, or anyone acting on your behalf 01· on your attorneys' behalf took
or obtained photographs, videotape, mag110tic, digital, or electronic images, or other
images of the collision scene, vehides, or parties involved, please provide the name,
address, a11d telephone number of tbe person having custody of such images, the date on
which the images were taken or made, and the name of tbe person( s) taldng or making
such images.
ANSWI<~R:
The Deferrdant objects to this request as it is overly broad, vague and unduly
burdensome.
The Defendant further objects to this interrogatory to the extent that it is outside the
scope of disco very as it regards matters that are not relevant to the subject matter of this
present lawsuit, it seeks information which is not relevant to the clairni: asse1ted by the
Plafotiff, and it is not reasonably calculated to lead to fue discovery of admissible
evidence pursuant to the Texas Rules of Civil Procedure.
Tl1e Defendant further objects to tbis intmogatory in that the Plaintiff has tlie burden of
proof to evince that relevant to any issue in fuis cause. Jn order for the Plaintiff to
recover under their DIM claim, they must prove that the purported
unde1insured/uninsured motorist negligently caused the accident that resulted in their
purported damages. SeeAllstateins. Co. v. Bonner, 51 S.W.3d 289, 291~92 (Tex.2001);
Wellisch v, United Servs. Auto. Ass'n, 75 S.W.3d 53, 57 (Tex.App.-San Antonio 2002,
pet. denied)
The Defendant further objects to this request to the extent that the documents ruilled for
therein is not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment
establishing the liability and underi11"'1red/uninsured status of the other
motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
2006). See also Henson v. Southern Fann Bureau Casualty insurance Company, 17
S.W.3d 652, 653-54 (Tex, 2000).
TI1e Defendant further objects as Plaintiffs are not entitled to discovery of privileged
information regarding bad-faith claims so long as tbe insurance company's Uability under
tbe underlying liability claim remains undetermined. See Maryland An' Gen. Ins. Co. v.
Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982).
MR 43
--,
·J
... _,...... ____
·,l i•"•
Without waiving said objections, the Defendant refers the Plaintiff to photographs and
documents produced in Defendant's Responses to Plaintiff's Request for Production.
5. Identify by name, employer (if different from Defendant) business address, job title, and
telephone munber of each iI1dividUJ1l who will be Defendant's in-court representative.
ANSWER;
The Defendant objects to this request as it is overly broad, vague and unduly
burdensome.
Without waiving said objections, Defendant's in-comt representative will be Frederick
Armour.
6. Identify by name, employer (if different from Defendant) business address, job title,
telephone number aud role of each of Defendant's employees, agents, repl'esentatives,
adjusters, independent adjusters, independent a75 S.W.3d 53, 57 (Tex.App.-San Antonio 2002,
pet. denied)
The Defenda11t further objects to this request to the extent that the documents callee! fur
therein is not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment
MR 44
``----``-------··-,
I '
., ·;:,-
j
'.
'
establishing the liability and underinsured/uninsured status of the other
motorist. Brainardv. Trinily Uni.versa/ Insurance Compaey, 216 S.W.3d.809 (Tex.
2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
S.W.3t{ 65:>,, 653-54 (Tex. 2000).
The Defendant further objects as Plaintiffs are not entitled to discovery of. privileged
information regarding bad"faith claims so long aB the insurance company's liability under
the tmderlying liability claim remains i.mdetermined. See Maryland Am. Gen. Ins. Co. v.
Blackmon, 639 S.W.2d 455, 457-58 (Tex. J982).
The Defendant further objects to 1his Jntei:rogatory as it calls for a narrative response, and
is an attempt by Plaintiff to impropeily limit Defendant's testimony.
Without waiving said objections, Neiman Miller, AAA Texas County MuttJal Insurance
Company; Frederick Arm.our, AAA Texas County Mutual Insurance Company; aud Clint
Smith, Property Damage Appraisers.
7. Identify every medical doctor, physician, osteopath, physician's assistant, and!or nurse
who has reviewed medical records of Thomas Jackson in CO!llIBction with the claim for
uninsnred/uuderlnsured motodst benefits that are the subject of this lawsuit.
ANSWER:
TI1e Defendant objects to this request on the grounds it violates the attorney client,
attorney wotlcprodiict, witness statement.and party connnunication privileges.
The Defendant further objects to this h1te1mgatory to the ex(ent that it is outside the
scope of discovery as it regards .OJ.alters that are not relevant to the subject matter of this
present lawsuit, it seeks information which is not relevant to the claims asse1ied by the
Plaintiff, and it is not reasonably calculated to lead to the discovery of admissible
evidence pursuant to the Texas Rules of Civil Procedure.
The Defendant further objects to this interrogatory in that the Plaintiff has the burden of
proof to evince that relevant to any issue in this cause. !11 order for the Plaintiff to
recover under their UIM claim, they must prove that the purported
i.inderinsured/unimmred motorist negligently caused the accident thattesulted in their
purported damages. See Allstate Ins. Co. v. Bonner, 51S.W.3d289,291-92 (Tex.2001);
Wellisch v. UrritedServs. Auto. Ass'n, 75 S.W,3d 53, 57 (Tex.App.-San Antonio 2002,
pet. denied),
The Defendant further objects to this request to the extent that the documents called for
therein is not relevant to any issue in tbis cause. The Plaintiff has yet to obtain judgment
establishing the liability and underinsmedfuninsured status of the other
motodst. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex:.
MR 45
. . . . .... '
'
I ~··-··
b}~··,
``~;<~. I ..-.
2006). See also Henson v. Southern Farm Bi1reau Casualty Insurance Company, 1. 7
S.W.3d 652, 653-54 (Tex. 2000).
Tlie Defendant further objects as Plaintiffs are uot eutitled to discovery of privileged
information regarding bad-faith claims so long as the insutance company's liability under
the ui1derlying liability claim remains \llldetermined. See Maryland Am. Gen. Ins. Co. v.
Blackmon, 639 S.W.2d455, 457-58 (Tex, 1982).
The Defendant further objects to this lnterrogato1y as it calls for a nanative response, and
is an. attempt by Plaintiff to impropedy limit Defendant's testimony.
Defendimt further objects to fuis Request to fue extent that it seeks infonnation that
exceeds the scope of discovery. Further, the Texas Rules of Civil Procedure, Rule 195.1
provides that a party may request iJ1for:rnation concerning testifying expert witnesses only
tlirough a request for disclosure and through deposition.
Plaintiff should be in possession of all meilical records and other records pertaining to
Plaintiff If and when Defendant obtains such records, Defendant will make these
records available to the Plaintiff for inspection up011 reasonable notice and will furnish
copies to any party who requests copies at that party's expense pursuant to TRCP Rule
205.3(e). Additionally, Plaintiff will be given an equal opportunity to obtnin these records
at the time they are made available to this Defendant by the records service.
S. Identify each of your employees who played any role in evaluating Plaintiff's claim,
authorized any proposed payment to be made to Plaintiff, and/ot made decisions
regai-ding any adjuster's a11thority to pay or deny Plaintiff's claim relating to
uninsured/1.Jnderillsured motorist coverage purchased by Plaintiff.
ANSWER:
Defendant objects to this Request as being over broad, vague, ambiguous and outside fue
scope of proper discovery. See Laflin v. Mar/In, 776S.W.2d145, 148 (Tex. 1989).
The Defendant farther objects to this request 011 the grotinds it violates the attorney client,
attomey work procluct, witness statement and party communication privileges.
The Defendant further objects to tliis interrogatory to the extent that it is outside the
scope of discovery as it concerns matte!'s that are not relevant to tbe subject matter of this
present lawsuit, it seeks infonnation which is not relevant to the claims asserted by the
Plaintiff, and is not reasonably calculated to lead to the discovery of admissible evidence
pursuant to the Texas Rules of Civil Procec!ure.
Defendant farther objects as Plaintiffs are not entitled to discovery of privileged
information regarding bad-faith claims so long as the insurance company's liability under
,.
MR 46
-,---- .,
the underlying liability claim remains undetetnlined, See Mcrryfand Am. Gen, Ins. Co. v.
Blackmon, 639 S.W.2d 455, 457-58 (Tex:. 1982).
The Defendant fatiher objects to this interrogatmy in fuat the Plaintiff has the burden of
proof to evince that relevant to any issue in this cause. In order for the Plaintiff to
recover under their DIM claim, they must prove that the purported
underinsured/uninsured motorist negligently caused the accident that resulted in their
purpoited damages. See Allstate Ins. Co. v. Bonner, 51 S.W.3d 289, 291-92 (Tex.2001);
Wellisch v. United Servs. Auio. Ass'n, 75 S.W.3d 53, 57 (Tex.App.-San Antonio 2002,
pet. denied)
The Defendant further objects to this request to the extent that the documents called for
therein is not relevantto any issue iu this cause. The Plaintiff has yet to obtain judgmeut
establishing the liability and underinsured/unins\lred status of the other
motorist. Brainardv. Trinity Unf11ersaf Insurance Company, 216 S.W.3d,809 (Tex.
2006). See also Ifenson v. Southern Farm Bwreau Casualty Insw-ance Company, 17
S.W.3d 652, 653-54 (Tex. 2000).
Without waiving said objections, Neiman Jvfiller, AAA Texas County Mutual Insurance
Company and Frederick A1mour, AAA Texas County Mutual Insurance Company.
9. If you have :information that has not already beeu produced herein regarding any other
claims for personal iiajury of any type fuat were made or may have bee11 made by the
Plaintiff 01· by Patricia Tompkins since the collision made the basis of this suit, please
state all information you have regarding each such claim, specifically including but not
limited to;
a. The date of the claim;
b. The type of fue claim;
c. The name oft!1e persou making the claim;
d. The other parties bivalved in ti1e claim;
e. The injuries claimed in the incident made the basis of this claim
f. The identity of all medical providers iuvolved in treating an.y injury claimed in the
incident made the basis of the claim
g. Each llisurer and claim number assigned to 1he claim; and
h. 111e disposition of the claim.
ANSWER:
The Defendaut objects to tbis request as it is overly broad, vague and unduly
burdensome.
Defendant objects to this Request as being outside the scope of discove1y as it concerns
matters that are uot relevaut to the i11Stant litigation nor is the request reasonably
MR 47
! I
·...•ii- '``?.. '
. '.~lrl ~-'5'il:.{,-i.:
calculated to lead to the discovery of admissible evidence pursuant to the Texas Rules of
Civil Procedure.
The Defendant furfuer objects to this in.te1wgatory as it calls for a nan1l.tive response, and
is an attempt by Plaintiff to imprope.tly limit Defondanfs testimony.
Without waiving said objectio·ru;, none.
10. Pursuant to Texas Rule of Evidence 609(f), identify by stating the date, cause nmnber,
offense, illld co mt foT eacl1 ctinrinal conviction of the Plaintiff and any person designated
by any party as h!lving knowledge of facts relevant to this matter pursuant to Texas Rl\le
of Civil Procedure 194.2(e),
ANSWER:
The Defendant is not aware of any a\ this tirne.
11. Pursuant to Texas Rules of Civil Procedure 194.2(d) and 192.3(a); if you contend that
you are entitled to a credit or offset against judgment, state for each such credit/offset:
a. The dollar amount;
b. Each category(ies) of damages to which yo11 claim the creditloffset applies; and
c. How you arrived at and/or calculated the dollar !lillOUllt of the credit/offset.
ANSWER:
The Dcfeudant objects to this request as it is overly broad, vague and -qnduly
burdensome.
The Defendant further objects to this iutenogatory as it calls for a narrative response, and
is !Ul attempt by Plaintiff to improperly limit Defend!Ult's testimony.
Without waiving said objections, Defendant refers Plain.tiff to response to Plaintiff's
194.2.
12. State each and every fuctor which yon now contend or will contend at trial caused or
contributed to causing the Plaintiff's damages including but not limited to pre-e:x:!Bting
physical or medical conditions of the Plaintiff and, for each such factor, state in general
the factual basis for your contention. ·
ANSWER:
The Defendant objects to this request as it is overly broad, vague and l\nduly
burdensome,
I;
MR 48
I , ----------------··-,
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Tlie Defendant further objects to this inte11:ogatory as it cal!s fol' a narrative response, and
is an attempt by Plaintiff to improperly limit Defendanfs testimony.
Without waiving said objections, Defendant AAA Texas County Mutual lnsnrance
Company does 110t have personal knowledge of how the accident occurred. Defendant
refers Plaintiff to any deposition testimonies obtained in tbis matter, as well as documents
produced by any party.
13. If you contend that the Plaintiff's actions and/or omissions caused or co11tributed to
causing the collision fro1n which Plaintiff's claim for. uuinsured/underinsured motorist
benefits arises, describe in gelleral the factual basis for your contention.
ANSWER:
The Defendant objects to this request as it is overly broad, vague and unduly
burdenso1ne.
The Defendant :futther objects to this interrogatory as it calls for a narrative response, and
is an a!tempt by Plaintiff to impropm·ly limit Defeudanfs testimony.
Without waiving said objections, Defendant AAA Texas County Mutual Insmance
Company does not have personal knowledge of how the accident occurred. Defendant
refers Plaintiff to any deposition testimonies obtained in this matter, as well as documents
produced by any party, Further, Defendant makes no contentious at this time.
14. lfnot already contained in documents produced herein, state all ptocedmes followed and
each criteria utilized by Defendant in its investigation and evaluation of Plaintiff's claim.
ANSWER:
The Defendant objects to this request as it is overly broad, vague and unduly
burdensome.
The Defendant further objects to this request on the groUllds it violates the attorney client,
attomey work product, witness statement and paity commU11ication privileges.
The Defendant further objects to this intei:rogatozy as it cal!s for a narrative response, and
is an attempt by Plaintiff to impraperly limit Defendant's testimony.
Defendant objects to this Request as being outside the scope of discovery as it concerns
matters that are not relevant to lbe instant litigation nor is the request reasonably
calculated~ lead to tl1e discovery of admissible evidence plltsuant to the Texas Rules of
Civil ProcedUl'e.
MR 49
------------~·-,
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·1 ::;:/·. f ..
!
The Defendant further objects to this interrogatory in that the Plaintiff has the burden of
proof to evince that relevantto any issue in this cause. In order for the PJainliff to
· recover under their DJM claim, they must prove that the purported
um!erinsured/uninsured motorist negligently caused the accident tbat resulted in tlieir
purported damages. See Allstate Ins. Co. v. Bonner, 51 S.W.3d 289, 291-92 (Tcx.2001);
Wel/isch v. United Servs. Auto. Ass'n, 75 S.W.3d 53, 57 (Tex.App.-San Antonio 2002,
pet. denied)
The Defendant further objects to this request to the extent that the documents called for
therein is not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment
establishing the liability and underinsured/uninsured status of the other
motorist. Brainard v. Trinity Umi•ersa/ Insurance Company, 2.16 S.W.3d.809 (Tex.
2006). See also [{enson v. Southern Farm Bureau Casualty Insurance Campany, 17
S.W.3d 652, 653-54 (Tex. 2000).
Defendant objec1s as Plaintiffs are not· entitled to discovery of privileged information
regarding bad-faith claims so long as the insurance company's liability under the
underlying liability claim remains undetermined.. See Maryland Am. Gen. lns. Co. v.
Blac/anon, 639 S.W.2d45S, 457-58 (Tex. 1982).
15. List. identify, and describe all documents not already produced herein that suppo1t your
contention, if any, that:
a. Plaintiff failed to meet or perform condition(s) precedent to his bringing this lawsuit;
b. Plaintiff failed to comply with a term or condition of the-insurance agreement that is
the subject otfuis lawsuit; and/or
c. Plaintiff's claim is excluded from uninsurcd/underinsured motorist coverage pursuant
to a term or condition offue insurance agreement that is the subject of this lawsuit.
ANSWER:
The Defendant objects to this request as it is overly broad, vague and unduly
burdensome.
'Tiie Defendant further objects to this request on the gmunds it violates the attorney client,
attomey work product, witness statement and party communication privileges.
The Defendant further objects to this interrogatory as it calls for a narrative response, and
is an attempt by Plaintiff to improperly limit Defendant's testimony.
The Defondant ftu·ther objects to this request to fue extent tliat the documents called for
therein is not relevant to any issue in this cause. The Plaintiff has yet to obtirinjudgment
establishing the liability and underinsured/uninsured status of 1he other
motorist. Brainard v. Trinity Universal Insurance Campany, 216 S.W3d.809 (Tex.
MR 50
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.I 1,;:
2006). See also Henson v. Southern Farm Bureau Casualty insurance Compal'f)', 17
S.W.3d 652, 653-54 (Tex. 2000).
Defendant objects as Plaintiffs are not entitled to discovery of p11vileged information
regarding bad-faith claims so long as tl1e iasurance company's liability llllder the
1mderlyiag liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
Blackmon, 639 S.W.2d 455, 457-58 (fox. 1982).
Withollt waiving said objections, Defendant is not making those contentions at this time.
16. State every reason for your denial of Plaintiff's uninsured/llllderinsured motorist claim in
excess of your April 28, 2014, offer to pay $20,000.00 (in addition to $5,000.00 in
previously paid personal injury protection benefits and $30,000.00 previously paid by
Patricia Tompkins' insurance cartler).
ANSWER:
The Defendant objects to this request as it is overly broad, vague and unduly
burden1mrne.
The Defendant further objects to this request on the grounds it violates the attorney client,
attorney work produc~ witness statement ai1d party communication privileges.
The Defendant fm1:her objects to tliis interrogatory as it calls for a naimtive response, and
is an atten1pt by Plaintiff to improperly lilllit Defendant's testimony.
Defendant further objects to thiB Request as being outside the scope of discovery a' it
concems matters that are not relevant 1o the Instant litigation nor i.s the request reasonably
calculated to lead to the discovery of admissible evidence pursuant to tbe Texas Rules of
Civil Procedure.
TI1e Defeadant further objects to this request to the extent tl1at fue documents called for
therein is not relevant to any iBsue in this cause. The Plaintiff has yet to obtain judgment
establishing the liability aru:l llllderinsured/uninsured status of the otber
motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
S,W.3d 652, 653-54 (Tex. 2000).
Defendant objects a' Plaintiffs are not entitled to discovery of privileged information
regarding bad-faifu claims so long as the insurance cnmpany's liability under the
lmderlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
Blackmon, 639 S.W.2d455, 457-58 (Tex, 1982).
MR 51
'•.~;-.,,
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··.•1E;..•
17. If you used any computer software program to assist in the evaluation of Plaintiff's claim
fo1· tminsure17
S.W.3d 652, 653-54 (Tex. 2000).
Defendant objects as Plaintiffs are not entitled to discovery of privileged information
regarding bad-faith claims so long as the insurance company's liability llllder the
underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982).
Defendant asserts its privileges relating to computer programs, manuals, and database
information to the extent that it constitutes trade secrets and other proprietary information.
See Tex. R. Evidence 507; Tex. R. Civ. P. 76(a)(2)(c); Computer Assoc. Int. 7 v. Altai,
Inc., 918 S.W.2d 453, 455 (Tex. 1996), RESTATEMENT (213) OF TORTS - 757,
comment (b). Plaintiff has the burden of establishing the information re'luested herein is
necessary for a fair adjudication of tltls claim which has not been established to date.
MR 52
-, I I
Defendaut roserts that the benefit that Plaintiff might obtain from this information, if any,
does not at1d cannot outweigh harm of disclosure to the Defendant See Tn re Leviton Mfg.
Co. Inc., 1S.W.3d898, 902 (Tex. App.-Waco 1999, orig. proceeding).
18. List all manuals, instmctions, directions, and materials providing guida11ce regarding the
use of each computer software program identified ln the foregoing intemigatory.
ANSWER:
Defendant objects to this Request as being over broad, vague, ambiguous and outside 1he
scope of proper discovery.
Defendant furll:Jer objects to this Request as being outside the scope of discovery as it
concerns m11tters that are not relevant to the instant litigation nor is the request reasonably
calculated to lead to the discovery of admissible evidence purruant to the Texas Rules of
Civil Procedure.
Tile Defendant fu1iher objects to this interrogatory as it calls for aruirtative response, and
is an attempt by Plaintiff to improperly limit Defendant's testimony. I
I
The Defendant furthe!' objects to this request to the extent that the documents called for
therein is not relevant to any issne in this cause. The Plaintiff has yet to obtain judgment
r
I
establishing the liability and 1u1deril!sured/uninsured statns oftlw other
motorist. Brainard 11. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
2006). See also Henson v. Southern Farm Bureau Casualty Jmurance Company, 17
S.W.3d 652, 653-54 (Tex. 2001}).
Defendant objects as Plaintiffs are not entitled to discovery of privileged infoJ'ITiation
regarding bad-faith .clain1s so long as the insnrance company's liability under the
underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
Blackmon, 639 8.W.2d 455, 457-58 (Tex. 1982).
Defendant asserts its privileges relating to computer programs, manuals, and datahase
infonnation to the extent that it constitutes trade secrets and other proprietary information.
See Tex. R. Evidence 507; Tex. R. Civ. P. 76(a)(2)(c); Computer Assoc. Int. 7 v. Altai,
Inc., 918 S.W.2d 453, 455 (Tex. 1996), RESTATEMENT (213) OF TORTS - 757,
comment (b). Plaintiff has the burden of establishing the infommtion requested hereirds
necessary for a fair adjudication of this. claim which has not been estllblished to date.
Defendant asserts that the benefit that Plaintiff might obtain from this information, if any,
does not and cannot outweigh hann of disclosure to the Defendant See In re Leviton Mfg.
Co. Inc., l S.W.3d 898, 902 (Tex.. App.-Waco 1999, orig. proceeding).
MR 53
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•
19. State every reason for your refusal to pay the $20,000.00 that you offered (in addition to
$5,000.00 in previmisly pa\d personal injury protection benefits an_d $30,000.00
previously paid by Patricia Tompkins' insurance carrier) through Fredrick M. Aimour,
ynur Claims Service Representative, onApri128, 2014.
ANSWER:
The Defendant objects to this request as it is overly broad, vague and unduly
burdensome.
The Defendant fiuiher objects to this request on the grounds it violates the attorney client,
attorney work product, witness statement and paiiy cormnunication privileges.
The Defendant further objects to this interrogatory as it calls for a nairative response, and
is an attempt by Plaintiff to improperly limit Defendant's testi:tnony.
The Defendant further objects to this interrogatory to the extent that it is outside the
scope of discovery as it concerns matters that ai·e not relevant to the subject matter of this
present lawsuit, it seeks information which is not relevant to the claims asserted by the
Plaintiff, and is not rerumnably calculated to lead to the discovery of admissible evidence
pursuant to the Texas Rules of Civil Procedure.
The Defendant further object' to this request to the extent that the documents called for
therein is not relevant to any issue in this cause. The Plalntiffhas yet to obtain judgment
establislring the liability and undetinmired/unhisured status of the other
motorist. Brainard v. TI·inity Universal Insurance Company, 216 S.W.3d.809 (Tex.
2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
S.W.3d 652, 653-54 (Tex. 2000).
Defendant objects as Plaintiffs are not entitled to discovery of privileged information
regarding bad-faith claims so long as 1he insurance company's liability under the
underlying liability claim remains undetermined. See Maryland Ant Gen. Ins. Co. :v.
Blackmon, 639 S.W.2d455, 457-58 (Tex. 1982).
20. If you contend that Plaintiff is obligated to provide you with a release in exchange for the
p~yment of benefits afforded by the uninsured/nnderinsured motorist coverage contllined
in the policy at issue herein, identify all policy provisions and other documents on which
you base such contention.
ANSWElli
The Defondimt objects to this request as it is overly broad, vague and unduly
burdensome.
MR 54
l~,_~ •• :··,···
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...
·~x:?':;'t.; '.~;e.
Defendant objects to this Request to the extent that this requests the Defendant to render a
legal opinion or legal conclusion,
The Defendant further objects to fuis interrogatory as it calls for a narrative response, and
is an attempt by Plaintiff to improperly limit Defendant's testimony.
The Defettdant further objects to this interrogatory to the extent that it is outside the
scope of discovery as it concerns matters that are not relevant to the subject matter of this
present lawsuit, it seeks infomllltion which is not relevant to the claims asserted by the
Plaintiff, and is not reasonably calculated to lead to tbe discovery of admissible evidence
pursuant to the Texas Rules of Civil Procedure.
The Defendant further objects to this request to the extent that the documents called for
therein is not relevant to any issuein this cause. The Plaintiff has yet to obtain judgment
establishing tile liability and underinsured/uninsured status of the other
motorist. Bratnardv. Trinity Universallnsurance Company,216 S.W.3d.809 (Tex.
2006) See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
S.W.3d 652, 653-54 (Tex. 2000).
Defendant objects as Plaintiffs are not entitled to discovery of privileged information
regarding bad-faith claims so long as the insurance company's liability under the
underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982).
MR 55
··I I ....-.-.--~-
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j_
I'
CAUSE NO. 201-1365-A
THOMAS JACKSON,
Plaintiff
§
§
IN nm DISTRICT COURT OF
I
§
vs. § 188thJUDICIAL DISTRICT
§
AAA TEXAS COUNTY MUTUAL §
INSURANCE COMPANY §
Defendant. § GREGG COUNTY, TEXAS
OE:FENDANT'S OBJECTIONS and RESPONSES TO PLAINTIFF THOMAS
JACKSON'S FIRST REQUEST FOR ADMISSIONS
TO: Thomas Jackson, Plaintiff, by and through his attorneys of record, M. Raymond Hatcher
·and Alan J. Robertson, Sloan, Bagley, Hatcher & Perry Law Firm, 101 East Whaley
Street, Longview, Texas 75601.
COMES NOW AAA Texas County Mutual Insurance Company, Defendants in the above
nwnbered and styled cause, and serves its Objections and Responses to Plaintiffs First Request
for Admissions, in accordance with the Texas Rules of Civil Procedure.
Respectfully submitted,
wl~71:'
CARLOS A BALIDO
State Bar No. 01631230
Meadow Park Tower, Suite 1500
10440 North Central Expressway,
Dallas, TX 75231
Tel: 214-749-4805
Fax: 214-760-1670
carlos.balidp(il)wbclaw.tlnn.com
ATTORNEY FOR DEFENDANT
MR 56
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CEltfIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing document has been mailed,
faxed, or hand delivered to all parties of record, in compliance witli Rule 2la of the Texas Rules
of Civil Procedure, on December '2,3 2014.
Vi11 First Cutss U.S. Med[
M. Raymond Hatcher
Alan J. Robertson
Sloan, Bagley, Hatcher & Perry Law Firm
101 East Whaley Street
Longview, Texas 7560!
I
I
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i.
MR 57
.. ' -,- ......... -.·!
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The Defendant objects generally to tl1c Definitions and Instructions set forth at ilie beginning of
this written discovery request for the reason that they are overly broad, unduly burdensome, and
harassing. Further, the Defendant objects to these Definitions and Instructions for the reason that
fuere is no provision in the Texas Rules of Civil Procedure requiring a party to abide by such
definitions and instructions. The Defendant also objects to the Definitions and Instructions to the
extent that iliey seek to impose a greater burden and obligation on ilie Defendant tl1an is
permissible under the Texas Rules of Civil Procl'dure.
Witl10ut waiving or limiting the foregoing general objection, the Defendant specifically objects
to Plaintiff's discovery as follows:
OBJECTJONS AND RESPONSES TO PLAINTIFF'S
FIRST REQUEST FORADMISSJONS
1, Plaintiff sued Defendant AAA Texas County Mutual Insurance Company in its proper
name.
RESPONSE:
Admit.
2. On June 12, 2013, Plaintiff was h1Sured by a personal automobile policy bearing policy
number TPAO 16443 3 53 issued by Defendllllt.
RESPONSE:
Admit
Prior to June 12, 2013, Defendant entexed into a contractual agreement with Plaintiff to
I1-
provide uninsured/underinsured motoiist cove111ge to Plai11tiff in the event that he was
involved in a motor vehicle collision caused by m uninsured/underinsured motodst.
1
RESPONSE:
I
Admit. !.
4. Your policy number TPAO 16443353 prnvided uninsured/underinsured motorist coverage
to PlaintiffonJ1ine 12.. 2013.
RESPONSE:
Admit
MR 58
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5. Your policy numberTPA016443353 was in force and effect on June 12, 2013.
RESPONSE:
Admit.
6. All premiums due on your policy number TPA016443353 on or before June 12, 2013,
had been timely paid by or on behalf of Plaintiff.
RESPONSE:
Admit.
7. One June 12, 2013, a collision occurred in Gregg County, Texas, between a motor
vehicle operated by Plaintiff and a motor vehicle operated by Patricia Tompldns.
RESPONSE:
Admit
8. Plaintiff timely notified Defendant of a potential uninsured/underinsured motorist claim
following the June 12, 2013, motor vehicle collision that is the basis of this suit.
RESl'ONSE:
Admit
9. Defendant has not issued a reservation of rights letter to Plai11tiff pertaining to the
uninsured/underill$ured motorist claim Plaintiff made following the June 12, 2013, motor
vehicle collision that is the basis of this suit.
RESPONSE:
Admit
1O. Based upon your investigation(s) of the June 12, 2013, motor vehicle collision that is the
basis ofthls suit, you dete1mined that Patricia Tompkins was negligent.
RESPONSE:
Deny.
MR 59
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11. If, based upon your investigatiou(s) of June 12, 2013, motor vehicle collision that is the
basis of this suit, you determined that Patricia Tompkins was negligent, you also
determined 1hat Patricia Tompkins' negligence proximately caused the collision in
question.
RESPONSE:
Deny.
12. If, based upon your invcstigation(s) of June 12, 2013, motor vehicle collision that is the
basis of this·suit, you determined that Patricia Tompkins' negligence proximately caused
the collision in question, you also determined that Patricia Tompkins' negligence and the
''
resulting collision caused at least some injury to Plaintiff. !
j.
RESPONSE: .i
il
Deny. H
i
13. Based upon your investigation(s) and/or evaluation(s) of Plaintiffs
uninsured/underinsured motorist claim, Defendant has detennined that Patricia Tompkins
was an underinsured motorist, as th.at term is defined in your policy number
TPA0\6443353.
RESPONSE:
Deny.
14. Based upon your investigation(s) and/or evaluation(s) of Plaintiff's
uninsured/underinsured motorist claim, you have determined that Plaintiff has sustained
damage in· excess of the sum of (1) Plaintiff's $5,000.00 personal injury pwtection
coverage, and (2) Patricia Tompkins' $30,000.00 limit of liability insurance.
RESPONSE:
Defendant objects to this request as it is a two pait question and vague.
Witho1Jt waiving this objection, deny.
15. On April 28, 2014, you offered $20,000.00 from Plaintiff's uninsured/underinsured
motorist coverage in addition to $5,000.00 in personal injuiy protection coverage that you
previonsly paid to Plaintiff and $30,000.00 previously paid by Ms. Tompkins' liability
insurance carrier.
RESPONSE:
Admit,
MR 60
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16. Based upon your investigation(s) and/or evaluation(s) of Plaintiff's
uninsmed/underinsured motorist claim, you have determined that Plaintiff has sustained
at least $55,000.00 in damages as a result of the June 12, 2013, motor vehicle collision
between Plaintiff and Patricia Tompkins.
RESPONSE:
Deny.
17. You have failed to pay any portion of 1:b.e $20,000.00 that you offered Plaintiff on April
28, 2014.
RESPONSE;
Defendant objects to this request in that it is vague aud argumentative.
Without waiving this objection and subject thereto, Defendant admits that it has not paid
the $20,000.00 offered to Plaintiff on April 28, 2014.
18. Plail1tiff has complied with all conditions precedent to recovering from the
uninsured/underinsured motorist coverage contained in your policy number
TPAOl 6443353. .
RESPONSE: I
I
i
Defendant objects to this request as it is vague,
Without waiving this objection and subject thereto, Defendant cannot admit or deny,
Reasonable inquiry has been made for Ibis infunnation and the infomiation known or
easily obtainable is insufficient to enable Defendant to admit or deny.
:
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MR 61
I I ---,
Electronically Submitted
1/19/2015 9:04:44 AM
Gregg County District Clerk
By: Debbie Kinney ,deputy
CAUSE NO. 2014-1365-A
THOMAS JACKSON § IN THE DISTRICT COURT OF
§
VS. § GREGG COUNTY, TEXAS
§
AAA TEXAS COUNTY MUTUAL §
INSURANCE COMPANY § 188TH JUDICIAL DISTRICT
DEFENDANT'S FIRST AMENDED ORIGINAL ANSWER
COMES NOW, AAA Texas County Mutual Insurance Company, Defendant in the above
styled and numbered cause and files its First Amended Original Answer to the Plaintiff's Second
Amended Original Petition and in support thereof would respectfully represent and show unto
the Court the following:
I.
Defendant AAA Texas County Mutual Insurance Company denies each and every, all
and singular, the material allegations contained in Plaintiff's Original Petition and demands strict
proof thereof.
II.
Defendant AAA Texas County Mutual Insurance Company demands a trial by jury.
III.
Further answering, if the same be necessary, Defendant contends that the allegations
made the basis of the claims and alleged damages, if any, of Plaintiff were caused by acts andfor
omissions of persons or third parties over whom this Defendant has no control, and for whom
this Defendant is not in law responsible. Such acts and/or omissions were the sole proximate
cause or a proximate cause or a producing cause of the occurrence in question and the alleged
damages, if any.
DEFENDANT'S FIRST AMENDED ANSWER - Page 1
#1333890(77325
MR 62
IV.
While denying that Plaintiff sustained injuries and suffered the incapacities as alleged,
Defendant would show that the injuries sustained by the Plaintiff prior and/or subsequent to the
date of the accident made the basis of this suit, contribnted in some part to any current incapacity
of the Plaintiff.
V.
Further answering, Defendant specially denies that Plaintiff sustained the injuries alleged
and would further show that the injuries, if any, sustained by him were temporary and partial in
nature and are no longer existing.
VI.
Fmiher answering, Defendant would show that the Plaintiffs recovery of medical or
healthcare expenses is limited to the amow1t actually paid or incurred by or on behalf of the
Plaintiff as mandated by the Texas Civil Practice & Remedies Code§ 41.0105.
VIL
Pleading further, Defendant would show that he is entitled to a credit or set-off for any
money collected by Plaintiff from any to1ifeasor or Co-Defendant as settlement or judgment
based on the incident at issue.
VIII.
Defendant would further show by way of affirmative defense that Defendant is entitled to
a credit/offset for PIP benefits previously paid to the Plaintiff in tl1e amount of $5,000.00.
Defendant pleads entitlement to this credit/offset pursuant to Texas law, and in particular, the
Texas Insurance Code.
DEFENDANT'S FIRST AMENDED ANSWER- Page 2
#1333890/77325
MR 63
-~-------------,
IX.
Further, Defendant would show that Plaintiff has failed to mitigate his damages as a
reasonable prudent person would have done under the same or similar circumstances and that
such failure to mitigate damages is the sole cause, or the proximate cause, of Plaintiffs damages,
if any.
WHEREFORE, PREMISES CONSIDERED, Defendant AAA Texas County Mutual
Insurance Company prays that upon final trial and hearing hereof, that no recovery be had from
Defendant AAA Texas County Mutual Insurance Company, but that Defendant AAA Texas
County Mutual Insurance Company go hence without delay and recover its costs, and for such
other and further relief to which Defendant AAA Texas County Mutual Insnrance Company may
be justly entitled and will ever pray.
Respectfully submitted,
WALTERS, BALIDO & CRAIN, L.L.P.
CARLOS A. BALIDO
State Bar No. 01631230
Meadow Pru·k Tower, Suite I 500
10440 North Central Expressway
Dallas, TX 75231
Tel: 214-749-4805
Fax: 214-760-1670
cado s. l)_!JlJs!~lli;jl'.YbcJ!!Yltin.n.ffim
DEFENDANT'S FIRST AMENDED ANSWER - Page 3
#1333890/77325
MR 64
------------, -----------------,
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing document has been mailed,
faxed, or hand delivered to all parties ofrecord, in compliance with Rule 2la of the Texas Rules
of Civil Procedure, on January 19, 2015.
M. Raymond Hatcher
Alan J. Robertson
Sloan, Bagley, Hatcher & Perry law Firm
P. 0. Drawer 2909
I 01 East Whaley Street
Longview, TX 75606
tel: 903-757-7000
__
fax: 903-757-7574
____ ________ _
rhatcher@.sloanfirm.com
-··-·-~·~"---··-·-'·"''"_"' ,
........_,....
CARLOS A. BALJDO
DEFENDANT'S FIRST AMENDED ANSWER - Page 4
#1333890/77325
MR 65
Electronically Submitted
1/19/2015 9:04:44 AM
Gregg County District Clerk
By: Debbie Kinney ,deputy
CAUSE NO. 2014-1365-A
THOMAS JACKSON § IN THE DISTRICT COURT OF
§
vs. § GREGG COUNTY, TEXAS
§
AAA TEXAS COUNTY MUTUAL §
TH
INSURANCE COMPANY § 188 JUDICIAL DISTRICT
DEFENDANT AAA TEXAS COUNTY MUTUAL INSURANCE COMP ANY'S
MOTION FOR SEVERANCE AND/OR PLEA IN ABATEMENT
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, AAA Texas County Mutual Insurance Company (hereinafter referred to
as "AAA,") and in the above-entitled and numbered cause, and files this its Motion for
Severance and/or Plea In Abatement and in support of the same would respectfully represent and
show unto the Court the following:
I.
AAA would show that this lawsuit arises out of an automobile accident that occurred on
or about June 12, 2013. Plaintiff alleges that he was turning left when tortfeasor, Patricia
Tompkins, struck Plaintiffs vehicle. At the time, AAA provided automobile liability insurance
to the Plaintiff, which contained underinsured motorist protection coverage ("UIM"). Plaintiff
made a claim under the policy provided by Defendant AAA.
·The Plaintiff has filed suit for breach of contract against Defendant seeking to recover the
UIM benefits (hereinafter the "contract claims"). However, this action is not limited to
contractual claims for U!M benefits. Rather, Plaintiff also asserted extra-contractual allegations
against Defendant for alleged breach of its duty of good faith and fair dealing arising from the
insurance contract between the parties (hereinafter the "extra-contractual claims").
DEFENDANT AAA'S MOTION FOR SEVERANCE AND/OR PLEA IN ABATEMENT
#1334490177325 PAGEi
MR 66
-----~-------~-,------,
' I
II.
To the extent that Plaintiff has alleged extra-contractual claims, AAA requests that the
Court sever all extra-contractual claims from the underlying contract claim in this case. The
Plaintiff should first have to prove his damages before AAA be made to defend the extra
contractual claims. Numerous Texas courts have concluded it is necessary to sever and abate
extra contractual claims from the threshold contract claim because of the cruel and unacceptable
dilemma the Defendant would necessarily face if it is forced to try both the fundamental issue of
liability in conjunction with claims addressing its evaluation of liability. In Re Trinity Universal
Insurance Company, No. 64 S.W.3d 463 (Tex. App.-Amarillo 2001, orig. proceeding); State
Farm Mut. Automobile Ins. Co. v. Wilborn, 835 S.W.2d 260, 262 (Tex. App.-Houston [141h
Dist.] 1992, orig. proceeding); Balderama v. Western Casualty Life Ins. Co., 794 S.W.2d 84, 89
(Tex. App.-San Antonio 1990), rev'd on other grounds, 825 S.W.2d 432 (Tex. 1991);
Northwestern Nat1 Llyds Ins. Co. v. Caldwell, 862 S.W.2d 44, 46-47 (Tex. App.-Houston [14th
Dist.] 1993, orig. proceeding); FA. Richard & Assoc. v. Millard, 856 S.W.2d 765, 767 (Tex.
App.-Houston [1" Dist.] 1993, orig. proceeding); Millard, 847 S.W.2d at 668; Mid-Century
Ins. Co. v. Lerner, 901 S.W.2d 749, 752-53 (Tex. App.-Houston [14th Dist.] 1995, orig.
proceeding).
The compelling rationale of these cases is that privileged material (such as counsel's
evaluation and insurance investigative claim files) and settlement negotiations are inadmissible
on the contract claims with regard to liability and damages. Nevertheless, this evidence would
be admissible regarding a tort or other extra-contractual claims to show whether the insurer acted
properly or not. The paradox created by the failure to sever is readily apparent. Without
severance of the extra-contractual claims, a defendant must choose between protecting its
DEFENDANT AAA'S MOTION FOR SEVERANCE AND/OR PLEA IN ABATEMENT
#1334490/77325 PAGE 2
MR 67
-----~-----------,
I I
evidentiary privileges (e.g., attorney-client communications and offers of settlement) and forego
demonstrating that its actions did not violate the statute or waive its privileges and in_ject into the
case issues of settlement, consultation with counsel, and investigative procedures and findings in
an effort to demonstrate it complied with the applicable statute. Faced with these conflicting
options, the Wilborn comt concluded:
[T]he resolution of this conflict leaves but one decision to protect
all interests involved and that is to order severance of the two
causes of action and to abate the proceedings on tl1e bad faith claim
until final disposition of the uninsured motorist claim.
Id. at 262. See also, Mi/lard, supra, 847 S.W.2d at 668.
The case law is clear that tl1e extra-contractual claims are to be severed from contract
claims because to try the two distinct types of claims together is (1) highly prejudicial to the
insurer because of the inherent problems which inevitably arise when trying an
underinsured/uninsured motorist claim jointly with extra-contractual claims requiring the
injection of insurance, settlement negotiations, settlement offers, and of privileged matters (such
as advice of counsel and investigative claim files) and (2) potentially a waste of limited judicial
and party resources because the extra-contractual claims are necessarily dependent on tl1e
resolution of tl1e underinsured/Ullinsured motorist claim and, therefore, can be rendered moot by
the first proceeding. Id.
The Amarillo Court of Appeals ordered severance of an underinsured contract claim from
the plaintiffs' extra-contractual claims. See In Re Trinity Universal Insurance Company at 467.
There, the Amarillo Court of Appeals laid a framework for determining that the plaintiffs' claim
for damages under Article 21.55 should be severed where (1) the claim for
underinsured/uninsured motorist benefits is contractual and the claim for penalty under Article
DEFENDANT AAA'S MOTION FOR SEVERANCE AND/OR PLEA IN ABATEMENT
#1334490/77325 PAGE3
MR 68
-----``----------,
21.55 involves more than one cause of action, (2) the severed claim is one that would be the
proper subject of a lawsuit if independently asserted, and (3) the Article 21.55 claim is not so
interwoven with the tort action and contract action that they involve the same facts and issues.
Id.
Defendant would show that In Re Trinity Universal Insurance Company is similar to the
case at bar. Here, the (1) Plaintiff's claim for UIM benefits is contractual and the
extra-contractual claims involve more than one cause of action, (2) the severed claims would be
the proper subject of a lawsuit if independently asserted, and (3) the extra-contractual claims are
not so interwoven with the contract action that they involve the same facts and issues: the
unresolved questions of liability and medically necessary treatment are factually and legally
distinct from the questions of alleged breach of duty of good faith and fair dealing. Once a trier
of fact has determined that Plaintiff's alleged injuries and treatment were the proximate result of
said accident; then and only then, is it appropriate to consider whether the Defendant violated
their duty of good faith and fair dealing in the handling of the UIM claim.
III.
Defendant AAA would further request that Plaintiffs extra-contractual claims be abated
until Plaintiffs contract claim has been finally resolved. United States Fire Insurance Co. v.
Millard, 847 S.W.2d 688 (Tex. App.-Houston (1st Dist.] 1993, no writ); Texas Farmers
Insurance Company v. Stem, 927 S.W.2d 77 (Tex. App.-Waco 1996); Mid-Century Insurance
Company o,[Texas v. Lerner, 901 S.W.2d 749 (Tex. App.-Houston [14th Dist.] 1995). The
issue of discovery regarding the extra-contractual claims necessitates the abatement of these
claims. It is well settled under Texas law that where litigation is initiated regarding an insurance
claim on the contract and for extra-contractual claims, evidence regarding the extra-contractual
DEFENDANT AAA'S MOTION FOR SEVERANCE AND/OR PLEA IN ABATEMENT
#1334490177325 PAGE 4
MR 69
-``-------``-,
claims remains privileged and nndiscoverable during the pendency of the contract claim. In
Maryland American General Insurance Co. v. Blackmon, 639 S.W.2d 455 (Tex. 1982), the court
found that the plaintiff was not entitled to discovery of otherwise privileged information
regarding bad-faith claims as long as the liability on the contract action remained undetermined
as it would be prejudicial to the insurance company's right to the defense of the contract. In
holding that the insurance company could assert its privileges on the contract claim, the Supreme
Court pointed out the following:
In order to recover under its contract cause of action, the [Plaintiff Bank] must
prove its president was dishonest and that such dishonesty caused losses within
the terms of the bond. [The insurance company] . . is entitled to defend itself by
requiring the [Bank] ... prove its cause of action and assert whatever defenses it
may have. The protection of the pa1ty's right to defend a suit brought against him
is the essence of the proviso in Rule l 86a [now Rule 166b, the attorney-client,
work product, and investigative privileges], and the privilege exists so long as that
right exists. Regardless of the other reasons which might justify the use of this
information, it would be impossible to limit the prejudicial effect of disclosure on
[the insurance company's] . . . right to defend the contract cause of action.
Moreover, if a plaintiff attempting to prove the validity of a claim against an
insurer could obtain the insurer's investigative files merely by alleging the insurer
acted in bad faith, all insurance claims would contain such allegations. We hold
that [the insurance company] ... is entitled to assert the privilege so long as its
liability on the bond remains nndetermined.
Blackmon, 639 S.W.2d at 457-58.
In further support of said motion, the San Antonio Court of Appeals in Jn Re United Fire
Lloyds held extra-contractual claims should be severed and abated from the contract action. In
that case, in his amended petition, the Plaintiff filed contractual claims for UIM benefits as well
as extra-contractual claims against the insurer. The Court found severance.and abatement of the
extra-contrnctual claims, and not bifurcation, is the proper procedure in a UIM claim. The Court
found when an action is brought against tl1e insurer for both breach of contract and
extra-contractual claims the extra-contractual claims should be severed and abated until such
DEFENDANT AAA'S MOTION FOR SEVERANCE AND/OR PLEA IN ABATEMENT
#1334490177345 PAGE 5
MR 70
-------~----~--·-,
I '
time as the Plaintiff has obtained a judgment as to liability against the tortfeasor and established
Plaintiffs underinsured status. As the Court states, the insurer "should not be required to put
forth the effort and expense of conducting discovery, preparing for a trial, and conducting voir
dire on bad faith claims that could be rendered moot by the portion of the trial relating to UIM
benefits. To require such would not do justice, avoid prejudice, and further convenience." In re
United Fire Lloyds, 327 S.W.3d 250, 256 (Tex. App.-San Antonio, 2010, no pet.) (attached as
Exhibit "A).
Defendant should not be required to undergo the expense of discovery with respect to
extra-contractual claims, when there exists a substantial possibility that damages are not awarded
in the contract claim, and, thus, will not even trigger the duty to pay under the UIM provisions of
the policy. Such a finding on the contract claim would preclude any necessity to discovery or to
try the extra-contractual claims.
WHEREFORE, PREMISES CONSIDERED, Defendant AAA prays that the Court sever
Plaintiff's extra-contractual claims against Defendant pursuant to Rule 41 and/or Rule 174(b) of
the Texas Rules of Civil Procedure. Defendant AAA further moves for an abatement of such
actions until such time that the action against Defendant for UIM benefits is resolved by
judgment or settlement. Defendant AAA further requests such other relief to which it may show
itself entitled.
DEFENDANT AAA'S MOTION FOR SEVERANCE AND/OR PLEA JN ABATEMENT
#1334490/77325 PAGE6
MR 71
I !
Respectfully submitted,
WALTERS, BALIDO & CRAIN, L.L.P.
CARLOS A. BALIDO
State Bar No. 01631230
Meadow Park Tower, Suite 1500
10440 North Central Expressway
Dallas, Texas 75231
214-749-4805
214-760-1670 - Fax
E-mail: balidovtax@wbclawfirm.com
ATTORNEY FOR DEFENDANT
AAA Texas County Mutual Insurance Company
CERTIFICATE OF CONFERENCE
On January 16, 2015, counsel for movant and counsel for respondent have personally
conducted a conference at which there was a substantive discussion of every item presented to
the court in this motion, and despite best efforts, the counsel have not been able to resolve the
matters presented. Therefore, a hearing is requested in this matter.
Certified to the lq day of ..::rCf)~\(l."\ , 2015.
~l~
Cll'.Balido
CERTIFICATE OF SERVICE
This is to certify that on the 19'h day of January, 2015, a true and correct copy of the
foregoing document was forwarded to all counsel of record.
Carlos A. Balido
DEFENDANT AAA'S MOTION FOR SEVERANCE AND/OR PLEA IN ABATEMENT
#1334490/77325 PAGE7
MR 72
-----------,
Exhibit ''A''
MR 73
In re United Fire Lloyds, 327 S.W.3d 250 (2010)
327 S.W.3d 250
Court of Appeals of Texas,
San Antonio.
121 APJ)eal and Error
In re UNITED FIRE LLOYDS. ~..Natureand T::xtent of[)Jscretionary Po\ver
!Vlandamus
No. 04-10-00094-CV. I July 14, 2010. ·~*-"Matters of discretion
A trial court has no discretion in detennining
what the Jaw is or applying the law to the facts,
Synopsis
and a clear failure by the trial court to analyze or
Background: E1nployee who had been involved in motor
apply the law con-ectly will constitute an abuse
vehicle accident with other 1notorist filed suit against
of discretion for mandatnus purposes.
en1ployer's automobile insurer, asserting claim for
l111derinsured motorist (UIM) benefits, as well as bad faith
clain1s, Insurer filed motion to sever and abate UIM claim
from bad faith claims. Employee filed motion for a
bifurcated trial. The 49th Judicial District Court, Webb
County, Jc)se A. Lopez, J. 1 denied insurer 1 s n1otion and
granted e1nployee 1 s tnotion. Insurer filed petition for writ 1>1 M·anda1nus
of 1nandamus. {;:."MHtter$ of=>Nature of nets to be C()rn1nanded or enforced
Mandamus will !ssue only to correct a clear Since 1nandamus is intended as an extraordinary
abuse of discretion for which the relater has no remedy, such interference is justified only when
adequate remedy at law. parties stand to Jose their substantial rights.
l Cases that cite this hen327 S.W.3d 250 (2010)
action, (2) the severed claim is one that would
be the proper subject of a lawsuit if
independently asse11ed, and (3) the severed
claim is not so interwoven with the re1naining
Action action that they involve the same facts and
,;·"'"Severance of actions issues.
Action
·)"•l''irnure and subjeer n1auer ofacti.ons in
general
Trial court was required to sever and abate claim
for underinsoi·ed motorist (UJM) benefits
1•1 Action
brought by employee involved in motor vehicle
accident with other motorist against employer's ~1 ·Severance- of actions
auto1nobUe insurer from e1nployee~s bad faith
c!ai1ns against insurer) as insurer was under no The controlling reasons for a severance of
contractual duty to pay UIM benefits until c!aiins are to do justice 1 avoid prejudice, and
employee established the liability and further convenience.
underinsured status of the other Jnotorist, andi
! Cases that cite rhls headnote
thus, insurer should not be required to put forth
the effort and expense of conducting discovery,
preparing for a trial, and conducting voir dire on
bad faith claims that could be rendered moot by
the portion of the trial relating to UIM benefits, IJOJ lnsurnncc
in that to require such would not do justice,
~?Prerequisites for Clain1 of Breach or Bad
avoid prejudice, and further convenience.
Fnith
4 ('.<:1'3es that cite this headnote JnsurHtJCe
iFBad t:1ith in general
1
Contractual clain1s based on an insurance policy
and bad faith claims against an insurer are by
171 Action their nature independent) but, in most
-~Severf!nce of actions
2 Cases t·l1nt cite- this hendnote
Claims are properly severable if: (I) the
controversy involves more than one cause of
MR 75
._ _.
in re United Fire Lloyds, 327 S.W.3d 250 (2010)
..... ,.. __ ,, ___________ _____ ... ______________._________
~---·------ .. -------------~----------"-·--·-·-··'--·--··
substantial rights by being required to prepare
1111 lnsurance for claims that might be rendered 111oot and
(;..•,;Necessity of1"ort liability might have not even yet accrued.
fnsnra1H':C!
<-P.·,Underlnsuranct'!: exhausled cover(lge I Cases that cite th.is headnote
fnsnrance
·C.,.-ii~I)crcrinination of"for1· Liabilitv: Acrjons and
Seulen1cnts ~-
An underinsured 1notorist (UIM) insurer is *252 Original Mandamus Proceeding. 1
under no contractual duty to pay benefits until
the insured obtains a judgrnent establishing the Attorneys and Law Firms
liability and underinsured status of the other
Clay E. Coalson, Donnell, Abernethy & Kieschnick,
1notorist; neither requesting UIM. benefits nor
Corpus Christi. TX, Jose L. Cia1nez, Donnell, Abernethy
filing suit against the insurer triggers a
& Kieschnick, Edinburg, TX, for Appellant
contractual duty to pay.
Ronald A. Ramos, Nadine Nieto, Law Offices of Ronald
J Cuses that cite this headnote
A. Ramos, P.C., Ada1n Poncio, Poncio Law Offices, P.C.,
San Antonio, TXi Bryan W. Jones, Texas Mutual
Insurance Company, Austin, TX, for Appellee.
IUJ Sitting: KAREN ANGELINI, Justice, REBECCA
Insurance SIMMONS, Justice, MARIA LYN 13ARNARD, Justice.
'-f:l'l~Uninsured or lJnderfnsurcd Motorist
('overage Opinion
fnsurnnt'e
i'i"'-'Necessity of Tort Lhibility
1
JnsurHfic(~
> ('.lainls rind Sett lenient Practices
0
OPINION
For an insured to recover for underinsured
motorist (UIM) benefits under an automobile Opinion by: REBECCA SIMMONS, Justice.
insurance policy, he 1nust prove not only that the
purported underinsured 1notorist negligently On February 8, 2010, relator United Fire Lloyds filed a
caused the accident that resulted in the covered petition for writ of1nanda1nus, seeking to compel the trial
damages, but also that all applicable policy court to (I) vacate the October 7, 2009 Order Grantino
provisions have been satisfied. Plaintiffs Motion for a Bifurcated Trial, (2) vacate th:
October 13, 2009 01~der Denying Defendant United Fire
Lloyd's Motion to Sever and Abate Plaintiff's
Extra-Contractual Claims, and (3) grant United Fire's
Motion to Sever and Abate Plaintiffs Extra-Contractual
Claims, We conditionally grant mandamus relief,
il·i)
!Vlandaxnus
•0?=~i\.1odif1cntion or vacation ofjudgn1ent or order
E1nployerjs automobile insurer, against which BACKGROUND
employee had brought claim for underinsured
The underlying suit arose from a motor vehicle accident
motorist (UIM} benefits as well as bad faith
involving Juan Garcia and Ramon Valverde. Garcia filed
claims, had no adequate remedy by appeal with
suit against United Fire for underinsured motorist
respect to trial court's abuse of discretion in
("UIM") benefits under his employer's insurance policy.
denying its motion to sever and abate UIM
The original petition only alleged a claim for UIM
claim ti·om bad faith claims, and, thus)
benefits, but subsequently filed petitions added
1nandan1us relief was appropriate, as if
extra-contractual (bad faith) claims. The Fomth *253
n1andamus was not granted, insurer stood to lose
MR 76
! I
In re United Fire Lloyds, 327 S.W.3d 250 (2010)
Amended Petition' alleged the following bad faith claims (orig. proceeding). HA trial court has no 'discretion' in
in violation of the Texas Insurance Code: (1) failing to determining what the law is or applying the law to the
co1nn1ence an investigation of Garcia's claim and failing facts," and "a clear failure by the trial court to analyze or
to request fro1n the c!aiinant all ite1ns. statements, and apply the law correctly will constitute an abuse· of
forn1s in order to properly evaluate Garcia)s claim in discretion" *254 Walker, 827 S.W.2d at 840. "To satisfy
violation of section 542.055; and (2) engaging in unfair the clear abuse of discretion standard, the relater must
settle1nent practices in violation of section 54 I .060:l show 'that the trial court could reasonably have reached
only one decision.' '1 liberty N{;t'l Fire ins. Co. v. Akin,
United Fire contends it inade a settle1nent offer in the 927 S.W.2cl 627, 630 (Tex.1996) (quoting Walker, 827
a111ount of $I 00,000 during 1nediation. I~owever, no S.W.2d at 840). However, this court will not issue a writ
settletnent agree1nent was ever reached. Later, United Fire of 1nandamus if there is a clear and adequate rernedy at
filed a n1otion to sever and abate Garcia's UIM claitn law. See J:Valker1 827 S.W.2d at 840. Since 1nandamus is
fron1 the bad faith clain1s. As the basis for the 1notion 1 intended as an extraordinary re1nedy 1 such interference is
United Fire asserted a severance was necessary because justified only when parties stand to lose their substantial
the introduction of the settle1nent ofter1 the policy limits, rights. Id ar 842.
and the facts concerning United Fire 1 s handling of the
claim, as they relate to the bad faith claims, would
prejudice United Fire in the trial of the UlM claim, and
would confuse, complicate, and considerably lengthen the lf. Severance or Bifurcation?
trial. Garcia then filed a 1notion for a bifurcated trial as an 171 1s1 191 Severance and bifurcation are distinct trial
alternative to the severance and abate1nent. As authority procedures. Hall v. City 1!f' Austin, 450 S.W.2d 836,
for his 1notion1 Garcia relied on this cou1t 1 s opinion in Jn 837--38 (Tex.1970). A severance divides the lawsuit into
re Trovelers Lfr~1.·dv qj' Te.Y. Int C. .o., in which we two or more separate and independent causes. Id.
concluded the trial court did not abuse its discretion in However, tbe bifurcation of a trial leaves the lawsuit
bifurcating over severing the contractual claims from the intact but enables the cou1t to hear and deterrnine one or
bad faith claims. See 273 S.W.3d 368. 373-75 1nore issues without trying all· controverted issues at the
(Tcx ..A.pp.-San Antonio 2008, orig. proceeding). Garcia same time. fd. Claims are properly severable if (I) the
contended a severance would be judicially wasteful, controversy involves 1nore than one cause of action, (2)
wou!d unduly prejudice hhn, and the disposition of the the severed claim is one that would be the proper subject
trial on the UlM claim would not eliminate the trial on the of a lawsuit if independently asserted, and (3) the severed
bad faith clain1s. In response to the rnotion for a claim is not so interwoven with the remaining action that
bifurcated h·ial, United Fire asserted that a UIM claim is they involve the satne facts and issues. 6..,u.ar. red. .\[n1.
differe11t fron1 other types of contractual insurance clai1ns Bank v. 1-Jorseshoe ()perating (~o., 793 S.W.2d 652, 658
because there is no contractual duty to pay benefits until (Tex. 1990). "The controlling reasons for a severance are
the insured obtains a judg1nent establishing liability and to do justice, avoid prejudice, and further convenience."
the underinsured status of the other 1notorist. Therefore 1 Id
United Fire claimed no bad faith claiins had yet accrued,
1101 Contractual clailns based on an insurance policy and
and the trial on the tJJM claim would control the outcome
of the bad faith clai1ns. After a hearing, the trial couit bad faith claims are by their natme independent. Akin,
granted Garcia's motion for a bifurcated trial and denied 927 S.W.2d at 629. 1'But, in 111ost circumstances, an
United Pire Lloyd's 1notion to sever and abate. This insured 1nay not prevail on a bad faith claim without first
petition for writ of 1nandamus ensued. showing that the insurer breached the contract." Id. In
Akin, the Texas Supreine Court concluded that a
severance 1nay be necessa1y in some bad faith cases. Id. at
630. For instance, when evidence is admissible only with
regard to the bad faith claim and would prejudice the
ANALYSIS insurer to such an extent that a fair trial on the contract
claim would become unlikely. Id.
I. Standard
Ill of Review Following Akin, numerous intermediate cou1ts of appeals
12 1 lll 141 1-1 161
. Mandamus will issue only to correct a
.:i have considered whether it is an abuse of discretion for a
clear abuse of discretion for which the relator has no trial court to refuse to order a severance of contractual
adequate remedy at law. {n re Prudential In'"!'. Co. q/'Arn., claims from bad faith claims when a settle1nent offer has
148 S.W.3d 124. 135 (J'ex.2004) (orig. proceeding); been made. &e, e.g., Tn re Miller, 202 S.W.3d 922,
Walker v. Packer, 827 S.W.2d 833, 839·40 (fex.1992)
_______________9_2_5_-~.~Cfe``.P.::````~!.:.p~.~95?.:~ 01·ig. proceeding (tnan~.
·f,.\-si\``·:1'/~Jext © '.t::013 Thomson Reuters. l\Jo clain1 to original U,S. Gover11n1eni: VVorks. 4
MR 77
-------------------,--------,
In re U ni:e~ ~1~€)-~".Y_d_•,_327 S.W.3d_:250_(2_0_10)____ - - - - - - - - - - - - · · - - ·-·-···-········ ....- ..·-·-----·-·-···-···-·-·-··--··
denied] ); In re Al!sliite Tex. Lloyds, No. determined.
14 05--00762-·CY, 2005 WL 2277134, at * 4 See Brainard, 216 S.W.3d at 818 (citing Flenson v. S.
(Te,,App.-Houston [14th Dist] Sept. 2, 2005, orig, F'ann B11reau C'as. fns. (~o., 17 S.W.3d 652. 654
proceeding) (1ne1n. op.); /11 re Allstate !ndem. C'o., (Tex.2000)).'1 Therefore, "the UIM insurer is under no
05--03-01496-··CV, 2003 WL 22456345, at *1 contractual duty to pay benefits until the instn·ed obtains a
(Tex.App.-Dallas Oct. 30, 2003, orig. proceeding) (mem. judgment establishing the liability and underinsured status
op.); [11 re Jrinir,v Universal Im. Co., 64 S.W.3d 463, 468 of the other motorist.... Neither requesting UIM benefits
(Tex.A_pp.-An1arillo 2001: orig. proceeding [1nnnd. nor filing suit against the insurer triggers a contractual
de11it'.d] ). Eventually. parties began seeking bifurcation of duty to pay." Id
the contractual clai1ns fro1n the bad faith clain1s as an
alternative to severance. See Jn re Travelers, 273 S.W.3d 13
1 1 Therefore1 in order for Garcia to recover under his
t)t 373~ 0 75: Jn re Allstate Tex. lioyd':i. 202 S.W.3d 89.5, VIM claim, he 1nust prove not only that the purported
901) (Tex.App.-Corpus Christi 2006, orig. proceeding underinsured 1notorist negligently caused the accident that
[mane!. denied] ) (concluding plaintiffs failed to meet their resulted in the covered damages, but also that all
burden that they would be prejudiced by the bifurcation of applicable policy provisions have been satisfied. See
contractual claitns under a homeowner's insurance policy dllstatit !ns. (~o. v. BonJ1er, 5 l S.W'.Jd 289, 291-·92
and bad faith claiins instead of severing and abating the ('fex.2001); ~Velli.<>ch v. l.lniled /:/ervs. Auro. As.s'n. 75
c!ain1s). But we are only aware of a few cases in the S.\.V,3d 53. 57 CI'ex.App.~Snn Anlonio 2002, peL denied)
context of a U ! M claiin that have considered whether (holding that because an insurer is not obligated to pay
severance and abate1nent is necessary over bifurcation. U!M benefits until the insured becomes legally entitled to
/)ee In re ,..fl/stale Prop. and ("as. fns. C'o., No, those benefits, an insurer has the right to withhold
02--07--0014 l··CV. 2007 WL I 574964, nt *I payment of UIM benefits until the insured's legal
('rex.App.-Fort V·/orth Muy 30, 2007) 01ig. proceeding) entitlement is established). As a result, United Fire
(mcm. op.) (holding it was an abuse of discretion to contends the trial court abused its discretion in bifurcating
bifurcate *255 instead of severing and abating the UIM rather than severing and abating because it is disputed
claim from the bad faith claims); In re Allstate County whether there is a covered loss. United Fire argues it
M111. Ins. Co .. 209 S.W.3d 742, 746-47 (Tcx.App.-Tyler should not be required to prepare for a trial on bad faith
2006. orig. proceeding) (concluding lt was an abuse of claims when it has no contractual duty to pay the UIM
discretion to bifurcate instead of severing the UIM .clai111 claim until Garcia obtains a judgment establishing the
fi·om the bad faith clain1s). However, these cases fail to underinsured motodst's liability and underinsured status.
discuss the necessity of severance and abatement rather
than bifurcation in the context ofa U!M claim. Garcia responds tliat it is not disputed that he has a
covered loss and the bad faith claims will not be mooted
1111 11'1 Jn a UIM case, "[t]he UJM insurer is obligated to by a trial on the UIM claim; therefore, this court should
pay damages which the insured is 'legally entitled to hold the trial court did not abuse its discretion in
recover' from the underinsured 1notorist." Brainard v. 5
bifurcating the trial rather than severing and abating:
Trinitv llniversa! Ins. c~o., 216 $.\V.3d 809, 818 Garcia relies *256 primarily on fn re Travelers to support
(Tcx.l006J (citing TEX. INS.CODE art. 5.06-1(5)). In his argument. See 273 S.W.Jd at 373-·~75. However, we do
Brainard, the Texas Supreme Court expounded on the not find In f'(! Travelers controlling because it was not a
uniqueness of a UIM case as follows: UIM case. Id In re Jf•r,n,elers involved a suit filed by
homeowners against their homeowners' insurance carrier
The UJM contract is unique for breach of contract and bad faith for mishandling their
because) according to its tenns, claim. Id. at 370. This court concluded that "[b]ecause the
benefits are conditioned upon the trial of the [plaintiffs'] extra,contractual claims Is
insured 1 s legal entitlement to unaffected by the outcoine of their contractual clahn 1 a
receive da111ages fro1n a third party. single bifurcated trial preceded by unified discovery and
Unlike lnany first-pa1ty insurance pretrial proceedings proinotes judicial economy better
contracts, in which the policy alone than severance and abate1nent." Id at 374. As a result,
dictates coverage, UJM insurance this court determined the trial court did not abuse its
uti Hzes tort law to determine discretion in bifurcating the case because 11 [u]nder these
coverage. Consequently, the circumstances, the primary justification for abatement of
insurer's contractual obligation to the extra-contractual claims-avoiding the effo1t and
pay benefits does not arise until expense of conducting discovery on claims that rnay be
liability and damages are rendered moot in a previous trial-is non-existent because
·; ..;;-.:f'.Je.-.:t ·'.\~) 2e:·r:;} i'"non1sorr Reuter.:~. No ciain1 to original U.S. Governnrent VVorl327 S.W.3d 250 (2010)
the disposition of the contractual claim will not inoot the required to prepare for clai1ns that 1nay be rendered moot
extra-contractual claims." Id and may have not even yet accrued. See [J.S. F'ire Ins. c:o.
v. Millard. 847 S.W.2d 668, 675 (Tex.App.-HouBton [Isl
This court's determination that bifurcation is an Dist.] 1993, orig. proceeding); Jn re 7"/·inifJ' Llniversal ins.
appropriate alternative to severance is not applicable to Co., 64 S.W.3d 463. 468 (Tex.App.-Amarillo 2001, orig.
the present case because a UIM claim that involves a proceeding [mand. denied]).
dispute as to whether there is a covered loss is
distinguishable frorn a ho1neowners' insurance claiin Finally, we address Garcia's contention that United Fire
where the existence of a covered Joss is not disputed. waived any co1nplaint as to the wording or form of the
LJnlike the situation presented in ln re Travelers, United order. Typically in a mandamus situation, a party
Fire disputes whether Garcia has a covered loss. As a preserves its co1nplaint by requesting an order and the
result, a determination of Garcia's U!M claim 1nay negate trial coutt either grants or *257 does not grant the request
his bad faith claiJns. See Progressive. C'ounly .~tfut. Ins. C'o. to enter an order, See Axelson, Inc. v. lv!c:J/hany, 798
v. /Joy,(, 177 S.WJd 919, 922 (Tex.2005) (recognizing S.W.2d 550, 556 (Tex.1990). lt is unclear what Garcia
bGd faith c!ai1ns are generally negated by a lack of contends United Fire waived since United Fire's
coverage under the insurance policy); /lkin. 927 S. \¥.2d at complaint is that the trial court improperly granted a
6J()n..J 1 (recognizing that judgn1ent for the insurer on the bifurcated trial over severing and abating the UIM claim
coverage clahn prohibits recovery pre1nised only on the from the bad faith claims. United Fire does not appear to
bad faith denial of a clai1n, but does not necessarily bar all complain about the fonn or contents of the bifurcation
claims for bad faith); In re Miller, 202 S.W.3d al 925 order. Therefore, we do not find lJnited Fire waived any
(concluding that bad faith claims are negated by a lack of complaints.
coverage under the insurance policy).
As a result of rhe foregolng, we are constrained by the
clear holding in Brainard. and hold that United Fire is
under no contractual duty to pay UIM benefits until CONCLUSION
Garcta establishes the liability and underinsured status of
the other inotorist. See J?rainard. 216 S.W.3d at 818. We conclude the trial court abused its discretion in
Therefore, United Fire should not be required to put forth
granting Juan Garcia's 1notion for a bifurcated trial and
the effort and expense of conducting discovery, preparing denying United Fire's motion to sever and abate.
for a trial, and conducting voir dire on bad faith claims Accordingly, we conditionally grant the writ of
that could be rendered moot by the portion of the trial
mandamus. The trial cou1i is ordered to (1) vacate the
October 7, 2009 Order Granting Plaintiffs Motion for a
relating to UJM benefits. To require such would not do
justice) avoid prejudice, and further convenience. See Bifurcated Trial, (2) vacate the October 13, 2009 Order
Ciuor. f-~ed. Sov. Bank. 793 S.\V.2cl at 658. Under these Denying Defendant United Fire Lloyd's Motion to Sever
circutnstances, we conclude the trial court abused its and Abate Plaintiffs Extra-Contractual Claims, and (3)
discretion in bifurcating the case instead of severing and grant United Fire's Motion to Sever and Abate Plaintiffs
abating the UlM claim from the bad faith claims. Extra-Contractual Claims. The writ will issue only if the
trial court fails to comply within fourteen days.
114 1 We futther conclude United Fire does not have an
adequate remedy by appeal because if rnanda1nus is not
granted it stands to lose substantial rights by being
Footnotes
This proceeding arises out of Cause No. 2008-CVE00052 l~D I, Juan Garcia, Plaintiff. Texas Mutuai Jm•tirance Co., As Subrogee
of.Juan. Garcia, !nJ.ervenor v. United Fire Lloyds, pendiiJg in the 49th Judicial District Court, Webb County, Texas, the Honorable
.lose A. Lopez. presiding.
The live petition is the Fifth A1nended Petition. However, it was filed after the trial court granted the motion to bifurcate, In
considering whether the trial court abused its discretion in denying United Fire's motion to sever and abate, we limit our review to
tbe record that was before the trial court at the thne the 1'decision was made.' 1 hr re Bristnl-·kfycrs Squibb Co .. 975 S.\~'.2d 601,
605 !Tex. 1998).
3 Specifically, Garcia contends United Fire engaged in unfair settle1nent practices by: (I) failing to atte1npt in good faith to effectuate
a pro1npt, fair, and equitable set1len1ent of Ga!'cia~s claim after liability had beco1ne reasonably clear, (2) tefusing, failing or
unreasonably delaying a settlement offer on the basis tbat other coverage tnay be available, and (3) delaying 01· refusing settleinent
6
MR 79
In re United Fire Lloyds, 327 S.W.3d 250 (2010)
of a c!aiin solely because there is other insurance of a different kind available to satisfy pait of the loss.
We acknowledge Brainard involved a different issue than the case at hand: a detennination as to when presentinent of a contract
claim was 1nade in order to delennine whether a party was entitled to attorney's fees in accordance with Chapter 38 of the Texas
Civil Practice and Remedies Code. Id.
We note that in Garcia's Sur-Reply he provides, "The truth of the n'!aUer is the primary clain1s will be decided and then, if
wan-anted, exlra~contracial [sicJ clain1s will be determined in lhc bifurcated portion of the trial." However, later Garcia again
contends that the extra~contractual clain1s will not be rendered moot by judg1nent in the first phase of the trial due to bifurcation.
t!nd of Docurnent © 2013 Thomson Reuters. No claim to original U.S. Government Works.
.................. ~------------------·----------
'"J.``~:tl.0'1vl\lexf © 2013 T11omson Reuters. No clain1 to original U.S. Goverr1rnent \f',/orks·, 7
MR 80
,- '
Electronically Submitted
1/19/2015 9:04:44 AM
Gregg County District Clerk
By: Debbie Kinney ,deputy
CAUSE NO. 2014-1365-A
THOMAS JACKSON § IN THE DISTRICT COURT OF
§
VS. § GREGG COUNTY, TEXAS
§
AAA TEXAS COUNTY MUTUAL §
INSURANCE COMPANY § 188TH JUDICIAL DISTRICT
DEFENDANT AAA COUNTY MUTIAL INSURANCE COMPANY'S
SPECIAL EXCEPTIONS TO PLAINTIFF'S SECOND AMENDED PETITION
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW Defendant, AAA Texas County Mutual Insurance Company, (hereinafter
referred to as "Defendant" or "AAA"), and files this its Special Exceptions to Plaintiff's Second
Amended Petition and in support thereof would respectfuliy represent and show unto the Court
the following:
I. SPECIAL EXCEPTION TO DECLARATORY JUDGMENT
Defendant would show that Plaintiff has alleged a claim against Defendant which may
not be alleged pursuant to the facts of the case at bar. Defendant specially excepts to Paragraph J,
because Plaintiff alleges claims against Defendant pursuant to the Uniform Declaratory Act
found in Chapter 37 of the Texas Civil Practice and Remedies Code.
This case arises out of a claim for underinsured motorist coverage. On or about June 12,
2013, Plaintiff was involved in a motor vehicle accident. At the time of the accident, Plaintiff
was covered by a liability insurance policy with Defendant AAA. Plaintiff alleges that a vehicle
driven by Patricia Tompkins collided with the Plaintiff's vehicle. Ms. Tompkins' liability
insurance company paid its policy limits for $30,000. At the time, AAA provided automobile
liability insurance to the Plaintiff, which contained underinsured motorist protection coverage
("UIM").
DEFENDANT AAA' SPECIAL EXCEPTIONS TO PLAINTIFF'S
SECOND AMENDED ORIGINAL PETITION - Pagel
#133892/77325
MR 81
-----·-, ' I
Plaintiff is not seeking to obtain a declaration of rights, status, or other legal relations
relating to the construction or validity of a written contract as required by the Uniform
Declaratory Judgment Act, but is instead attempting to circumvent the Texas Supreme Court's
ruling in Brainard v. Trinity Universal Ins. Co., 216 S.W.3d 809 (Tex. 2006) by having the
Court declare that Plaintiff's injuries and damages fall within the coverage of her insurance
policy, and that, in turn, Plaintiff is entitled to recover her insurance proceeds. Such allegations
and claims are invalid and fail to state a claim under Texas law.
The Texas Supreme Court has held that a UM/UIM carrier is under no contractual duty to
pay benefits until the insured obtains a judgment establishing the liability and underinsured
status of the other motorist. Brainard, 216 S.W.3d at 818. Moreover, the Court held that there
can be no award of attorney's fees to the claimant without such a finding of liability and
damages. Id.
The Uniform Declaratory Judgment Act is found 111 Chapter 37 of the Texas Civil
Practice & Remedies Code. The stated purpose of the Act is to "settle and to afford relief from
uncertainty and insecurity with respect to rights, status, and other legal relations." TEX. CIV.
PRAC. & REM. CODE§ 37.002. A person interested under a written contract, i.e. an insurance
contract, whose rights, status, or other legal relations are affected by the contract, may have
determined any question of construction or validity arising under the instrument and obtain a
declaration of rights, status, or other legal relations thereunder. TEX. CIV. PRAC. & REM. CODE§
37.004(a) (emphasis added).
The Uniform Declaratory Judgment Act operates to provide an individual whose rights
and legal relations are at issue in a contractual dispute as a vehicle by which he can solicit the
Court to resolve questions of construction or validity under the contract Nat 'I County Mut. Fire
Ins. Co. v. Johnson, 829 S.W.2d 322, 324 (Tex.App.-Austin 1992, writ granted). However, the
Uniform Declaratory Judgment Act does not empower the courts to render advisory opinions.
DEFENDANT AAA' SPECIAL EXCEPTIONS TO PLAINTIFF'S
SECOND AMENDED ORIGINAL PETITION - Page2
#133892/77325
MR 82
Foust v. Ranger Ins. Co., 975 S.W.2d 329, 331-32 (Tex.App.~San Antonio 1998, writ denied).
"Any judgment attempting to declare the liability of an insurance company relating to damages
that might be assessed in an underlying case is advisory and beyond power and jurisdiction of the
trial court under the Unifom1 Declaratory Judgment Act." Id
In the case at bar, Plaintiff has asserted a typical UJM claim against Defendant, but has
couched the claim as a declaratory judgment action pursuant to the Uniform Declaratory
Judgment Act contained within Chapter 37 of the Texas Civil Practice & Remedies Code.
Specifically, Plaintiff has requested that the Court declare that Plaintiffs injuries and damages
fall within the coverage of her insurance policy, and that, in turn, Plaintiff is entitled to recover
her insurance proceeds.
Plaintiff is simply trying to circumvent the Texas Supreme Court's ruling in Brainard,
which requires her to obtain an adjudication of liability and damages before Defendant is
obligated to pay benefits and/or attorney' s fees, by asking the Court to issue an impermissible
advisory opinion. Asking the Court for such declarations in a UIM case such as this does not
serve the purpose of the Uniform Declaratory Judgment Act to determine the construction or
validity of the insurance contract at issue and goes against established Texas Supreme Court
precedent requiring the Plaintiff to obtain an adjudication ofliability and damages before a UIM
carrier (such as Defendant) is obligated to pay benefits and/or attorney's fees. Until such time as
the Plaintiff has established that he is legally entitled to recover UIM benefits, AAA has no
contractual obligation under their UIM motorist policy to pay the benefits. Hence, the
declaratory judgment brought by Plaintiff is not ripe for judicial consideration.
Accordingly, Plaintiff has made allegations and claims in this case which are invalid and
fail to state a claim under Texas law. Defendant specially excepts to Plaintiff's claims in
Paragraph J for these reasons. Defendant requests that the Court sustain its Special Exception
DEFENDANT AAA' SPECIAL EXCEPTIONS TO PLAINTIFF'S
SECOND AMENDED ORIGINAL PETITION - Page3
#133892/77325
MR 83
---------------··-, I I
and order Plaintiff to replead and cure the pleading defects. If the Plaintiff does not cure this
defect, Defendant requests that the Court strike the Plaintiff's claims.
II. SPECIAL EXCEPTION AS TO ATTORNEY'S FEES
Defendant specially excepts to Paragraphs J(l 7) and Prayer for Relief (d) of the
Plaintiffs Second Amended Original Petition as the Supreme Court of Texas has held that
attorneys' fees are not recoverable in conjunction with an underinsured/uninsured motorist claim.
Brainardv. Trinity Universal Ins. Co., 216 S.W.3d. 809 (Tex. 2006).
In Brainard, the plaintiff contended that the appellate court erred in reversing the trial
court's ruling which held that she was entitled to recover attorneys' fees because her insurer
failed to timely pay Wlderinsured motorists benefits after she presented her claim. 216 S.W.3d at
817; see TEX. Crv. PRAC. & REM. CODE§ 38.002. To be entitled to attorneys' fees, the claimant
must: l) be represented by an attorney; 2) present the claim to the opposing party or to a duly
authorized agent of the opposing party; and 3) payment for the just amount owed must not have
th
been tendered before the expiration of the 30 day after the claim is presented. Id. at § 38.002.
While the Court recognized that a UIM insurer is obligated to pay damages which the insured is
"legally entitled to recover" from the underinsured motorist, under Chapter 38, the contractual
duty to pay does not arise until a judgment is obtained establishing the liability and
underinsured/uninsured status of the other motorist. Id. (citing Henson v. S. Farm Bureau Cas.
Ins. Co., 17 S.W.3d 652, 653-54 (Tex. 2000)). Therefore, the Court determined that a claim for
benefits is not presented until after the jndgment is signed, and, consequently, upheld the
appellate court's determination that the plaintiff was not entitled to recover attorney's fees.
In the present case, because the insurance contract does not require AAA to pay UIM
benefits before the tortfeasor is found negligent and the UIM status is determined, Plaintiff has
no contract claim prior to this Court issuing its judgment. Therefore, Plaintiff is not entitled to
recover attorneys' fees. For these reasons, Defendant requests that the Court sustain its Special
DEFENDANT AAA' SPECIAL EXCEPTIONS TO PLAINTIFF'S
SECOND AMENDED ORIGINAL PETITION - Page 4
#133892/77325
MR 84
--·-, I '
Exceptions and order Plaintiff to rep lead and cure the pleading defects. If the Plaintiff does not
cure this defect, Defendant requests that the Court strike the Plaintiffs claims.
WHEREFORE, PREMISES CONSIDERED, Defendant AAA prays that the Court
grant this its Special Exceptions and for such other and further relief to which Defendant AAA
may be justly entitled and will ever pray.
Respectfully submitted,
WALTERS, BALIDO & CRAIN, L.L.P.
CARLOS A. BALIDO
State Bar No. 01631230
Meadow Park Tower, Suite 1500
10440 North Central Expressway
Dallas, Texas 75231
214-749-4805
214-760-1670- Fax
E-mail: carlos.balido(iilwbclawi!rm.com
CERTIFICATE OF CONFERENCE
On January 16, 2015, counsel for movant and counsel for respondent have personally
conducted a conference at which there was a substantive discussion of every item presented to
the court in this motion, and despite best efforts, the counsel have not been able to resolve the
matters presented. Therefore, a hearing is requested in this matter.
Certified to the 19'11 day of January, 2015.
~
carrOs
; t
A. Balido
DEFENDANT AAA' SPECIAL EXCEPTIONS TO PLAINTIFF'S
SECOND AMENDED ORIGINAL PETITION - Page 5
#133892/77325
MR 85
-~---~------~--,
CERTIFICATE OF SERVICE
This is to certify that on this the 19'h day of January, 2015, a true and correct copy of the
above document has been forwarded to all counsel of record.
~-1~
c~A.BALIDO
DEFENDANT AAA' SPECIAL EXCEPTIONS TO PLAINTIFF'S
SECOND AMENDED ORIGINAL PETITION - Page6
# 133892/77325
MR 86
- - - - - - - - - - - - ,-, --------------,-,
Electronically Submitted
8/10/2015 9:37:16AM
Gregg County District Clerk
By: Erica Gant ,deputy
CAUSE NO. 2014 -1365-A
THOMAS JACKSON § IN THE DISTRICT COURT
§
vs. § OF GREGG COUNTY, TEXAS
§
AAA TEXAS COUNTY MUTUAL §
INSURANCE COMPANY § 188'h JUDICIAL DISTRICT
PLAINTIFF'S MOTION TO COMPEL DISCOVERY
TO THE HONORABLE COURT:
Plaintiff Thomas Jackson files this, his Motion to Compel Discovery. Plaintiff requests
that this Court sign an order compelling Defendant AAA Texas County Mutual Insurance
Company ("AAA") to fully answer/respond to Plaintiff Thomas Jackson's First Request for
Admissions, First Set of Interrogatories, and First Request for Production. In support thereof,
Plaintiff respectfully shows the Court the following:
I. INTRODUCTION
This lawsuit results from a motor vehicle collision occurring on or about June 12, 2013,
in Gregg County, Texas. The collision occurred at the intersection of Pliler Precise Road and
Judson Road in Longview, Texas. At that time, Plaintiff Thomas Jackson was the driver of a
vehicle lawfully and safely traveling westbound on Pliler Precise Road. Jackson stopped in
obedience to a traffic light at the intersection of Judson Road and Pliler Precise Road. After
stopping, and in obedience to the traffic light, Jackson continued traveling westbound into the
intersection of Pliler Precise Road and Judson Road. Patricia Tompkins was traveling
northbound on Judson Road when, with complete disregard for the safety and welfare of other
persons or property, she disregarded the red light, struck the driver's side of Jackson's vehicle,
and caused the collision made the basis of this lawsuit.
Plaintiffs Motion to Compel Discovery Page I
MR 87
When the collision occurred, AAA covered Jackson with a personal automobile insurance
policy. AAA's policy included underinsured motorist coverage. Jackson's injuries and damages
exhausted the limits of Ms. Tompkins's liability insurance coverage, so Jackson now seeks to
enforce against AAA the insurance policy for which both he and AAA bargained and for which
Jackson paid premiums.
AAA has already determined that Mr. Jackson was entitled at least $20,000.00 of its
$100,000.00 underinsured motorist coverage, in addition to the $5,000.00 personal injury
protection coverage it previously paid and the $30,000.00 of liability insurance paid by Ms.
Tompkins's insurer. Despite Jackson's demand that AAA pay this amount (and the parties
continue to litigate the amount(s) about which they disagree), AAA refuses to pay the
$20,000.00 which it has already determined Mr. Jackson is entitled to and which AAA offered.
Discovery in this matter is governed by a Level 3 discovery control plan. This matter has
been set for trial on February 8, 2016.
II. DEFICIENCIES IN DEFENDANT'S DISCOVERY RESPONSES
No party to this lawsuit disputes that the events listed below occurred on the
corresponding dates listed:
• October 17, 2014: Jackson's counsel serves AAA with Jackson's First Request for
Admissions, First Request for Production, and First Set of interrogatories.
• November 17, 2014: AAA's counsel requests (and Jackson's counsel grants) the first of
four extensions of AAA's deadline to respond to Jackson's written discovery. The
parties agree to extend AAA's deadline to November 25, 2014. Exhibit A.
• November 25, 2014: AAA's counsel obtains its second extension. The deadline to
object/respond/answer is now December 10, 2014. Exhibit B.
• December 10, 2014: AAA's counsel obtains its third extension. The deadline to
object/respond/answer is now December 17, 2014. Exhibit C.
Plaintiffs Motion to Compel Discovery Page2
MR 88
• December 17, 2014: AAA's counsel obtains its fourth and final extension. The deadline
to object/respond/answer is now December 24, 2014. Exhibit D.
• December 23, 2014: AAA serves its Objections and Responses to Plaintiffs First
Request for Admission, its Objections and Responses to Plaintiffs First Request for
Production, and its Objections and Answers to Plaintiffs First Set ofinterrogatories.
Although AAA purports to answer Jackson's discovery, it wholly failed to provide meaningful
responses/answers, despite having over two months and four extensions of its deadline to
respond. For example:
• In response to Jackson's 34 requests for production, AAA objected to all but 7 requests
and produced:
o The Texas Peace Officer's Crash Report regarding the subject collision
(previously produced by Jackson in discovery); and
o Black-and-white photocopies of two digital photographs, presumably of the car
driven by Jackson when the subject collision occurred.
• In response to Jackson's 20 interrogatories, AAA objected to all but 1 interrogatory and
provided substantive answers subject to its objections to only 6 interrogatories.
• AAA objected that Jackson's Request for Admission 14, which states "Based upon your
investigation(s) and/or evaluation(s) of Plaintiffs uninsured/underinsured motorist claim,
you have determined that Plaintiff has sustained damage in excess of the sum of(!)
Plaintiffs $5,000.00 personal injury protection coverage and (2) Patricia Tompkins'
$30,000.00 limit ofliability insurance," is a two-part question and is vague.
• AAA objected that Jackson's Request for Admission 17, which states that, "[AAA has]
failed to pay any portion of the $20,000.00 that you offered Plaintiff on April 28, 2014,"
is vague and argumentative.
• AAA objected that Jackson's Request for Admission 18, which states that, "Plaintiff has
complied with all conditions precedent to recovering from the uninsured/underinsured
motorist coverage contained in your policy number TPA016443353,"is vague. Further,
AAA responds that, "[w]ithout waiving this objection and subject thereto, Defendant
cannot admit or deny. Reasonable inquiry has been made for this information and the
information known or easily obtainable is insufficient to enable Defendant to admit or
deny."
Such lackadaisical efforts to respond to written discovery can hardly be considered to be
Plaintiffs Motion to Compel Discovery Page3
MR 89
---------~-,
in the good faith required by Texas Rule of Civil Procedure 193.2(c). See also In re Park Cities
Bank, 409 S.W.3d 859, 877 (Tex. App.-Tyler 2013, no pet.). Consequently, the Court should
overrule all of Defendant's objections and compel AAA to provide full and complete
responses/answers. See TEX. R. Crv. P. 193.2(e) ("An objection... that is obscured by numerous
uofounded objections ... is waived unless the [C]ourt excuses the waiver for good cause shown.").
III. FACTS NOT APPARENT FROM THE RECORD
Jackson attaches the following exhibits to his Motion for the Court's reference and
incorporates them herein as though they were set forth verbatim:
Exhibit A November 17, 2014, Rule 11 Agreement extending
AAA's deadline to object/respond/answer Jackson's
written discovery requests until November 25, 2014.
ExhibitB November 25, 2014, Rule 11 Agreement extending
AAA's deadline to object/respond/answer Jackson's
written discovery requests until December 10, 2014.
Exhibit C December 10, 2014, Rule 11 Agreement extending
AAA's deadline to object/respond/answer Jackson's
written discovery requests until December 17, 2014.
Exhibit D December 17, 2014, Rule 11 Agreement extending
AAA's deadline to object/respond/answer Jackson's
written discovery requests until December 24, 2014.
Exhibit E Defendant AAA Texas County Mutual Insurance
Company's Objections and Responses to Plaintiff Thomas
Jackson's First Request for Production
Exhibit F Defendant AAA Texas County Mutual Insurance
Company's Objections and Answers to Plaintiff Thomas
Jackson's First Set oflnterrogatories
ExhibitG Defendant AAA Texas County Mutual Insurance
Company's Objections and Responses to Plaintiff Thomas
Jackson's First Request for Admissions
Plaintiffs Motion to Compel Discovery Page4
MR 90
V. PRAYERFORRELIEF
PREMISES CONSIDERED, Plaintiff Thomas Jackson requests that the Court hear and
overrule Defendant AAA Texas County Mutual Insurance Company's objections to Jackson's
First Request for Production, First Set of Interrogatories, and First Request for Admissions,
compel AAA to provide full and complete answers/responses to same, and grant all such other
and further relief to which Jackson may show himself justly entitled.
Respectfully submitted,
SLOAN, BAGLEY, HATCHER & PERRY LAW FIRM
Isl Justin A. Smith
GLENN A. PERRY
State Bar No. 15801500
gperry@sloanfirm.com
JUSTIN A. SMITH
State Bar No. 24068415
jsmith@sloanfirm.com
101 East Whaley Street
Longview, Texas 75601
Telephone 903-757-7000
Facsimile 903-757-7574
ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF CONFERECE
I hereby certify that on the 17'" day of July, 2015, a sent a letter to opposing counsel
attaching this motion to compel and seeking to conference in acc.ordancewith the Texas R1J!es of
Civil Procedure. I called opposing counsel on the 30th of July, 2015, t~e 3l'1 ()f July; 2015, and
the 3rd of August, 2015, but have been unable to conference with.opposit1g counselregarding the
discovery disputes herein, necessitating the filing of this motion.
Isl Justin A. Smith
JUSTIN A. SMITH
Plaintiffs Motion to Compel Discovery Page5
MR 91
-, I I
CERTIFICATE OF SERVICE
I hereby certify that on this the 7th day of August, 2015 a true and correct copy of the
foregoing document was served in accordance with the Texas Rules of Civil Procedure on the
following counsel of record:
Mr. Carlos A. Balido
WALTERS, BALIDO & CRAIN, L.L.P.
10440 North Central Expressway, Suite 1500
Dallas, Texas 75231
Isl Justin A: Smith
GLENN A. PERRY
JUSTIN A. SMITH
Plaintiffs Motion to Compel Discovery Page6
MR 92
----~·-,
C I
·. ,-------~-----=~- .•"i
Electronically Submitted
101112015 9:55:19AM
Gregg County District Clerk
By: Debbie Kinney ,deputy
CAUSE NO. 2014-1365-A
THOMAS JACKSON § IN THE DISTRICT COURT
§
v. § GREGG COUNTY, TEXAS
§
AAA TEXAS COUNTY MUTUAL §
INSURANCE COMP ANY § 188TH JUDICIAL DISTRICT
DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW DEFENDANT, AAA Texas County Mutual Insurance Company
(hereinafter "Defendant") and files this its Response to Plaintiffs Motion to Compel and as
grounds therefore would respectfully show unto the Court as follows:
I. Background
Defendant would show that tills lawsuit arises out of an incident that occurred on or about
June 12, 2013 in Longview, Gregg County, Texas. Plaintiff has brought claims of breach of
contract; breach of good faith and fair dealing; violations of the Texas Insurance Code §541;
Deceptive Trade Practices Tex. Bus. & Com Code §17.50(a) (4); and a petition for declaratory
relief against the Defendant. 1 Plaintiff served his initial discovery requests to Defendant,
including Request for Disclosures, First Requests for Admissions, First Set of Interrogatories,
and First Request for Production. On Decemher 23, 2014, Defendant served its objections and
responses to Plaintiff's discovery requests. See Exhibit "A." On January 19, 2015, Defendant
filed its Motion for Severance and/or Plea in Abatement. See Exhibit "B." On June 24, 2015, the
parties discussed and confirmed the scheduling of mediation for September 29, 2015. See Exhibit
1
See Plaintiff's Second Amended Petition, on file witlt tlte Court herein.
DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL PAGEl
#1468054/77325
MR 93
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"C." On August 10, 2015, Plaintiff filed his Motion to Compel. See Exhibit "D." Counsel for
defense would show that on July 27, 2015, an email message was sent to counsel for Plaintiff
regarding the Motion to Compel. See Exhibit "E." No further discussions were held regarding
the Motion to Compel or the scheduling of the hearing. It was anticipated that if the case did not
settle at mediation, the pending motions would then brought before the court for consideration. ·
The parties attended mediation on September 29, 2015. During mediation, counsel for
the Defendant was informed by the mediator that Plaintiffs Motion to Compel was set for a
hearing on October 1, 2015. Counsel for the Defendant explained to Plaintiff's counsel that
defense counsel did not receive notice of the hearing. Defense counsel contacted the court and
received a copy of the notice letter dated September 10, 2015 from Plaintiff's counsel indicating
the letter was e-filed and faxed on the same date. See Exhibit "F." The court also confirmed there
was no indication in the system to reflect that the letter was e-filed to defense counsel. At the
mediation, Plaintiff's counsel produced a copy of the September 10, 2015 letter regarding the
Notice of Hearing. The letter included a fax cover sheet that indicated the fax to defense counsel
was "incomplete," "transaction ok," and "error." See Exhibit "G." Counsel for the defense did
not receive the Notice of Hearing letter until the copy was produced by Plaintiffs counsel at the
mediation on September 29, 2015.
On September 29, 2015, counsel for defense requested that Plaintiff's counsel reschedule
the Motion to Compel to allow defense counsel adequate time to prepare for the hearing and an
opportunity to confer with the adjuster assigned to the claim. Defense counsel explained to
counsel for Plaintiff that the assigned adjuster had recently been hospitalized for a pulmonary
embolism. He was continuing treatment under a doctors' care, but he was not released to travel
DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL PAGE2
#1468054/77325
MR 94
----------------~-,
........ ]~------------~---- ••."•'."[ --- ... ,--.,``
or work. On September 30, 2015, defense counsel sent a letter to Plaintiff's counsel to request a
two-week continuance of the Motion to Compel hearing to permit defense counsel the
opportunity to respond to the Motion to Compel, and to confer with the adjuster regarding any
additional information that had not already been produced that may be relevant to the Plaintiff's
claim, and to confer on the anticipated date of litigation.
In an attempt to promote judicial economy, counsel for defense contends it would be in
the best interest of the court's time and resources to have the court hear Defendant's Motion for
Severance and/or Plea in Abatement at the time as Plaintiff's Motion to Compel. Plaintiff's
counsel did not agree as indicated by their failure to res-set the hearing or confer with defense
counsel.
II. Argument
In the Motion to Compel, Plaintiff is attempting to compel the Defendant to produce
documents that are not relevant to Plaintiffs claim for damages. Plaintiff failed to list any
specific complaints or deficiencies, other than to state Defendant's discovery responses "wholly
fuiled to provide meaningful responses/answers." Plaintiff's motion made a production of
providing a timeline of extensions and due dates; however, Plaintiffs Motion to Compel is not
based on the timeliness of Defendant's responses, but only that Plaintiff does not agree with
Defendant's responses.
The Plaintiff has filed suit for breach of contract against Defendant seeking to recover the
underinsured motorist ("UIM") benefits (hereinafter the "contract claims"). However, this action
is not limited to contractual claims for UIM benefits. Rather, Plaintiff also asserted extra-
contractual allegations against Defendant for alleged breach of its duty of good faith and fair
DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL PAGlD
#1468054/77325
MR 95
-·-,
I
f'
dealing arising from the insurance contract between the parties (hereinafter the "extra-contractual
claims").
To the extent that Plaintiff has alleged extra-contractual claims, Defendant contends the
proper procedure is for the Court to sever all extra-contractual claims from the underlying
contract claim in this case, and to deny Plaintiff's discovery requests related to the extra-
contractual claims. The Plaintiff should first have to prove his damages before Defendant be
made to defend the extra contractual claims. Numerous Texas courts have concluded it is
necessary to sever and abate extra contractual claims from the threshold contract claim because
of the cruel and unacceptable dilemma the Defendant would necessarily face if it is forced to try
both the fundamental issue of liability in conjunction with claims addressing its evaluation of
liability. In Re Trinity Universal Insurance Company, No. 64 S.W.3d 463 (Tex. App.-Amarillo
2001, orig. proceeding); State Farm Mut. Automobile Ins. Co. v. Wilborn, 835 S.W.2d 260, 262
(Tex. App.-Houston [141h Dist.] 1992, orig. proceeding); Balderama v. Western Casualty Life
Ins. Co., 794 S.W.2d 84, 89 (Tex. App.-San Antonio 1990), rev'd on other grounds, 825
S.W.2d 432 (Tex. 1991); Northwestern Natl Llyds Ins. Co. v. Caldwell, 862 S.W.2d 44, 46-47
(Tex. App.-Houston [141h Dist.] 1993, orig. proceeding); F.A. Richard & Assoc. v. Millard, 856
S.W.2d 765, 767 (Tex. App.-Houston [1'' Dist.] 1993, orig. proceeding); Millard, 847 S.W.2d
at 668; Mid-Century Ins. Co. v. Lerner, 901 S.W.2d 749, 752-53 (Tex. App.-Houston [14th
Dist.] 1995, orig. proceeding).
The compelling rationale of these cases is that privileged material (such as counsel's
evaluation and insurance investigative claim files) and settlement negotiations are inadmissible
on the contract claims with regard to liability and damages. Nevertheless, this evidence would
DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL PAGE4
#1468054/77325
MR 96
be admissible regarding a tort or other extra-contractual claims to show whether the insurer acted
properly or not. The paradox created by the failure to sever is readily apparent. Without
severance of the extra-contractual claims, a defendant must choose between protecting its
evidentiary privileges (e.g., attorney-client communications and offers of settlement) and forego
demonstrating that its actions did not violate the statute or waive its privileges and inject into the
case issues of settlement, consultation with counsel, and investigative procedures and findings in
an effort to demonstrate it complied with the applicable statute. Faced with these conflicting
options, the Wilborn court concluded;
[T]he resolution of this conflict leaves but one decision to protect
all interests involved and that is to order severance of the two
causes of action and to abate the proceedings on the bad faith claim
until final disposition of the uninsured motorist claim.
Id. at 262. See also, Millard, supra, 847 S.W.2d at 668.
The case law is clear that the extra-contractual claims are to be severed from contract
claims because to try the two distinct types of claims together is (1) highly prejudicial to the
insurer because of the inherent problems which inevitably arise when trying an
underinsured/uninsured motorist claim jointly with extra-contractual claims requiring the
injection of insurance, settlement negotiations, settlement offers, and of privileged matters (such
as advice of counsel and investigative claim files) and (2) potentially a waste of limited judicial
and party resources because the extra-contractual claims are necessarily dependent on the
resolution of the underinsured/uninsured motorist claim and, therefore, can be rendered moot by
the first proceeding. Id.
DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL PAGES
#1468054/77325
MR 97
..... ,
A. Defendant's Objections and Responses to Request for Production
To the extent that Plaintiff is seeking responses and documents for alleged extra-
contractual claims, Defendant contends the proper procedure is for the Court to sever all extra-
contractual claims from the Wlderlying contract claim in this case, and to deny Plaintiff's
discovery requests related to the extra-contractual claims. The Plaintiff should first have to
prove his damages before Defendant be made to defend the extra contractual claims. Plaintiff
has made the following inappropriate and irrelevant requests for extra-contractual information
for the following request for production: 1, 6, 8, 9, 13, 14, 18, 19, 20, 21, 22, 23, 24, 26, 27, 28,
29, 30, 1, 32, 33, and 34.
After careful review and consideration, Defendant has considered Plaintiff's Motion to
Compel to the following requests for productions, and stands by and asserts the objections
previously submitted to the following requests: 2, 3, 5, and 7.
1. The entire claims file and/or adjuster logs including, but not limited to, photographs,
statements, notes, memoranda, tables, computer-generated information and other
written documents contained therein, that were generated in connection with the
injury to the Plaintiff that forms the basis of this lawsuit.
RESPONSE:
The Defendant objects to this request on the grounds it violates the attorney client,
attorney work product, witness statement and party communication privileges. The
Defendant further objects to this Request as being over broad, vague, ambiguous and
outside the scope of proper discovery. See Loftin v. Martin, 776 S.W.2d 145, 148 (Tex.
1989). The Defendant further objects to this Request as being outside the scope of
discovery as it concerns matters that are not relevant to the instant litigation nor is the
request reasonably calculated to lead to the discovery of admissible evidence pursuant to
the Texas Rules of Civil Procedure. The Defendant further objects to this request in that
the Plaintiff has the burden of proof to evince that relevant to any issue in this cause. In
order for the Plaintiff to recover under their UIM claim, they must prove that the
purported underinsured/uninsured motorist negligently caused the accident that resulted
in their purported damages. See Allstate Ins. Co. v. Bonner, 51 S.W.3d 289, 291-92
DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL PAGE6
#1468054/77325
MR 98
-----``-------~··-,
I '
.......•. ,~·-``~-``--~---``--
(Tex.2001); Wellisch v. United Servs. Auto. Ass'n, 75 S.W.3d 53, 57 (Tex.App.-San
Antonio 2002, pet. denied). The Defendant further objects to this request to the extent
that the documents called ·for therein is not relevant to any issue in this cause. The
Plaintiff has yet to obtain judgment establishing the liability and underinsured/uninsured
status of the other motorist. Brainard v. Trinity Universal Insurance Company, 216
S.W.3d.809 (Tex. 2006). See also Henson v. Southern Farm Bureau Casualty Insurance
Company, 17 S.W.3d 652, 653-54 (Tex. 2000). The Defendant further objects as Plaintiff
is not entitled to discovery of privileged information regarding bad-faith claims so long
as the insurance company's liability under the underlying liability claim remains
undetennined. See Maryland Am. Gen. Ins. Co. v. Blaclanon, 639 S.W.2d 455, 457-58
(Tex. 1982).
Plaintiff's very first Request for Production question is to request documents that are
ii
neither relevant nor likely to lead to admissible evidence to prove Plaintiff's damages in the !r
!t,,
subject motor vehicle accident. The Texas Supreme Court has held that a UM/UIM carrier is j·
iI
under no contractual duty to pay benefits until the insured obtains a judgment establishing the
liability and underinsured status of the other motorist. Brainard, 216 S.W.3d at 818. Because
Request for Production No. 1 is inappropriate and outside the scope of proper discovery,
Defendant has objected and reasserts its objections.
2. All written docmnentation of any investigation or reconstrnction of the collision
(other than those conducted by governmental/law enforcement entities or retained
experts) from which this lawsuit arises.
RESPONSE:
Defendant objects to this request as it is overly broad, vague and unduly burdensome.
The Defendant further objects to this request on the grounds it violates the attorney client,
attorney work product, witness statement and party co=unication privileges. Defendant
objects to this Request as being outside the scope of discovery as it concerns matters that .
i
are not relevant to the instant litigation nor is the request reasonably calculated to lead to
the discovery of admissible evidence pursuant to the Texas Rules of Civil Procedure.
Defendant further objects to this request to the extent that the documents called for
therein is not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment
establishing the liability and underinsured/uninsured status of the other
motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL PAGE7
# 1468054/77325
MR 99
----------,-----------, ,- I
. ·1
2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
S.W.3d 652, 653-54 (Tex. 2000). The Defendant further objects as Plaintiff is not entitled
to discovery of privileged information regarding bad-faith claims so long as the insurance
company's liability under the underlying liability claim remains undetermined. See
Maryland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d455, 457-58 (Tex. 1982).
Plaintiffs request is for documents that are neither relevant nor likely to lead to
admissible evidence to prove Plaintiff's damages in the subject motor vehicle accident.
Defendant was not a party or witness to the motor vehicle collision. The Texas Supreme Court
has held that a UM/IJIM carrier is under no contractual duty to pay benefits until the insured
obtains a judgment establishing the liability and underinsured status of the other motorist.
Brainard, 216 S.W.3d at 818. Because Request for Production No. 2 is inappropriate and
outside the scope of proper discovery, Defendant has objected and reasserts its objections.
3. All photographs, motion pictures, video recordings, umps, drawings, charts,
diagrams, measurements, surveys, or other documents concerning the events and
happenings made the basis of tills lawsuit, the vehicles in question, the scene of the
collision at issue, or the area, persons, or objects involved either made at the time of or
since the collision at issue.
RESPONSE:
Defendant objects to this request as it is overly broad, vague and unduly burdensome.
Defendant further objects to this request on the grounds it violates the attorney client,
attorney work product, witness statement and party communication privileges. Defendant
further objects to this Request as being outside the scope of discovery as it concerns
nmtters that are not relevant to the instant litigation nor is the request reasonably
calculated to lead to the discovery of admissible evidence pursuant to the Texas Rules of
Civil Procedure. Defendant further objects to this request to the extent that the documents
called for therein is not relevant to any issue in this cause. The Plaintiff has yet to obtain
judgment establishing the liability and underinsured/uninsured status of the other
motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
j.
S.W.3d 652, 653-54 (Tex. 2000). Defendant further objects as Plaintiff is not entitled to
discovery of privileged information regarding bad-faith claims so Jong as the insurance
company's liability under the underlying liability claim renmins undetermined. See
Maryland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982).
DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL PAGES
#1468054/77325
MR 100
---------,
I '
·- r ------~------~
Defendant previously produced documents in response to the request for photographs,
maps, drawings, diagrams, the vehicles in question, the scene of the collision. To the
extent, the request calls for "or other documents concerning the events and happenings
made the basis of this lawsuit," Defendant contends Request for Production No. 3 is
overly broad, vague, and unduly burdensome, in that it is unclear what "other documents"
Plaintiff requests. The unknown documents requested by Plaintiff may be or likely to be
pTivileged, work product, and not relevant; therefore, Defendant has objected and
reasserts its objections.
4. Answered without objections.
5. All incident reports (other than those created by governmentalllaw enforcement
entities or retained experts) and/or witness statements relating to or discussing the
collision made the basis of this lawsuit and/or the injuries that Plaintiff claims resulted
from said collision.
RESPONSE:
Defendant objects to this request as it is overly broad, vague and unduly burdensome.
Defendant further objects to this request on the grounds it violates the attorney client,
attorney work product, witness statement and party counnunication privileges. Defendant
further objects to this Request as being outside the scope of discovery as it concerns
matters that are not relevant to the instant litigation nor is the request reasonably
calculated to lead to the discovery of admissible evidence pursuant to the Texas Rules of
Civil Procedure. Defendant further objects to this request to the extent that the documents
called for therein is not relevant to any issue in this cause. The Plaintiff has yet to obtain
judgment establishing the liability and underinsured/uninsured status of the other
motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
S.W.3d 652, 653-54 (Tex. 2000). Defendant further objects as Plaintiff is not entitled to
discovery of privileged information regarding bad-faith claims so long as the insurance
company's liability under the underlying liability claim remains undetermined. See
Maryland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d 455, 457-5& (Tex. 1982).
Plaintiffs request is for documents that are neither relevant nor likely to lead to
admissible evidence to prove Plaintiffs damages i11 the subject motor vehicle accident.
Defendant was not a party or witness to the motor vehicle collision. Because Request for
DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL PAGE9
#] 468054/77325
MR 101
I I
.. ·.1--1
Production No. 5 is inappropriate and outside the scope of proper discovery, Defendant has
objected and reasserts its objections.
6. All correspondence, memoranda, reports, e-mails, facsimile transmissions, and all
other documents evidencing conunullications regarding the insurance claim(s) or any
aspect of said claim(s) that is the subject of this litigation between Defendant and its (a)
adjusters, (b) employees, (c) officers, (d) agents, € representatives, (f) independent
adjusters (other than those retained for the purpose of litigation), and/or (g) independent
adjusting :firms (other than those retained for the purpose of litigation).
RESPONSE: !.
Defendant objects to this request as it is overly broad, vague and unduly burdensome.
Defendant further objects to this request on the grounds it violates the attorney client,
attorney work product, witness statement and paity communication privileges. Defendant
further objects to this request to the extent that it is outside the scope of discovery as it
regards matters that are not relevant to the subject matter of this present lawsuit, seeks
information which is not relevant to the claims asserted by the Plaintiff, and is not
reasonably calculated to lead to the discovery of admissible evidence pursuant to the
Texas Rules of Civil Procedure. Defendant further objects to this request to the extent
that the documents called for therein is not relevant to any issue in this cause. The
Plaintiff has yet to obtain judgment establishing the liability and nnderinsured/nninsured
status of the other motorist. Brainard v. Trinity Universal Insurance Company, 216
S.W.3d.809 (Tex. 2006). See also Henson v. Southern Farm Bureau Casualty Insurance
Company, 17 S.W.3d 652, 653-54 (Tex. 2000). Defendant further objects as Plaintiff is
not entitled to discovery of privileged information regarding bad-faith claims so long as
the insurance company's liability under the underlying liability claim remains
nndetermined. See Maryland Am. Gen. Ins. Co. v. Blaclanon, 639 S.W.2d 455, 457-58
(Tex. 1982).
Plaintiff's request for documents are neither relevant nor likely to lead to admissible
evidence to prove Plaintiff's damages in the subject motor vehicle accident. The Texas Supreme
Court has held that a UM/UIM carrier is nuder no contractual duty to pay benefits until the
insured obtains a judgment establishing the liability and underinsured status of the other
motorist. Brainard, 216 S.W.3d at 818. Because Request for Production No. 6 is inappropriate
!!.
,..
and outside the scope of proper discovery, Defendant has objected and reasserts its objections. !'
DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL PAGElO
#1468054/77325
MR 102
7. All documents regarding every telephone conversation with or regarding Plaintiff.
RESPONSE:
Defendant objects to this request as it is overly broad, vague and unduly burdensome.
Defendant objects to this request on the grounds it violates the attorney client, attorney
work product, witness statement and party communication privileges. Defendant further
objects to this request to the extent that it is outside the scope of discovery as it regards
matters that are not relevant to the subject matter of this present lawsuit, seeks
information which is not relevant to the claims asserted by the Plaintiff, and is not
reasonably calculated to lead to the discovery of admissible evidence pursuant to the
Texas Rules of Civil Procedure. Defendant further objects to this request to the extent
that the documents called for therein is not relevant to any issue in this cause. The
Plaintiff has yet to obtain judgment establishing the liability and underinsured/uninsured
status of the other motorist. Brainard v. Trinity Universal Insurance Company, 216
S.W.3d.809 (Tex. 2006). See also Henson v. Southern Farm Bureau Casualty Insurance
Company, 17 S.W.3d 652, 653-54 (Tex. 2000). Defendant further o~jects as Plaintiff is
not entitled to discovery of privileged information regarding bad-faith claims so long as
the insurance company's liability under the underlying liability claim remains
undetermined. See Maryland Am Gen. Ins. Co. v. Blackmon, 639 S.W.2d 455, 457-58
(Tex. 1982).
Plaintiffs request is for documents that are neither relevant nor likely to lead to
admissible evidence to prove Plaintiffs damages in the subject motor vehicle accident.
Defendant was not a party or witness to the motor vehicle collision. Because Request for
Production No. 7 is inappropriate and outside the scope of proper discovery, Defendant has
objected and reasserts its objections.
8. All documents regarding the amount(s) set aside and/or placed in reserve
regarding Plaintiffs claim for uninsured/underinsured motorist coverage benefits herein.
RESPONSE:
Defendant objects to this request as it is overly broad, vague and unduly burdensome.
Defendant further objects to this request to the extent that it is outside the scope of
discovery as it regards matters that are not relevant to the subject matter of this present
lawsuit, seeks information which is not relevant to the claims asserted by the Plaintiff,
and is not reasonably calculated to lead to the discovery of admissible evidence pursuant
to the Texas Rules of Civil Procedure. Defendant further objects to this request to the
DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL PAGE11
#1468054/77325
MR 103
----~-,
I I
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extent that the documents called for therein is not relevant to any issue in this cause. The
Plaintiff has yet to obtain judgment establishing the liability and underinsured/uninsured
status of the other motorist. Brainard v. Trinity Universal Inswance Company, 216
S.W.3d.809 (Tex. 2006). See also Henson v. Southern Farm Bureau Casualty Insurance
Company, 17 S.W.3d 652, 653-54 (Tex. 2000). Defendant further objects as Plaintiff is
not entitled to discovery of privileged information regarding bad-faith claims so long as
the insurance company's liability under the underlying liability claim remains
undetermined. See Maryland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d 455, 457-58
(Tex. 1982). Defendant further objects to this request on the grounds it violates the
attorney client, attorney work product, witness statement and party communication
privileges.
Plaintiff's request is for documents that are neither relevant nor likely to lead to
admissible evidence to prove Plaintiff's damages in the subject motor vehicle accident. The
Texas Supreme Court has held that a UM/UIM carrier is under no contractual duty to pay
benefits until the insured obtains a judgment establishing the liability and underinsured status of
the other motorist. Brainard, 216 S.W.3d at 818. Because Request for Production No. 8 is
inappropriate and outside the scope of proper discovery, Defendant has objected and reasserts its
objections.
9. All non-privileged investigative reports regarding the collision made the basis of
this lawsuit including documents, memoranda, photographs, video recordings, movies,
statements, reports, drawings, communications, and tangible things attached to such
reports or referred to therein.
RESPONSE:
Defendant objects to tbis request as it is overly broad, vague and unduly burdensome.
Defendant further objects to this request to the extent that it is outside the scope of
discovery as it regards matters that are not relevant to the subject matter of this present
lawsuit, seeks information which is not relevant to the claims asserted by the Plaintiff,
and is not reasonably calculated to lead to the discovery of admissible evidence pursuant
to the Texas Rules of Civil Procedure. Defendant further objects to this request to the
·extent that the documents called for therein is not relevant to any issue in this cause. The
Plaintiff has yet to obtain judgment establishing the liability and underinsured/uninsured
status of the other motorist. Brainard v. Trinity Universal Insurance Company, 216
S.W.3d.809 (Tex. 2006). See also Henson v. Southern Farm Bureau Casualty Insurance
DEFENDANT'S RESPONSE TO PLAINTIFF'S MO'ITON TO COMPEL PAGE12
#1468054177325
MR 104
I !
! I
Company, 17 S.W.3d 652, 653-54 (Tex. 2000). Defendant further objects as Plaintiff is
not entitled to discovery of privileged information regarding bad-faith claims so long as
the insurance company's liability under the underlying liability claim remains
undetermined. See Maryland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d 455, 457-58
(Tex. 1982).
Plaintiffs request is for documents that are neither relevant nor likely to lead to
admissible evidence to prove Plaintiffs damages in the subject motor vehicle accident.
Defendant was not a party or a witness to the subject motor vehicle accident. The Texas Supreme
Court has held that a UM/UIM carrier is under no contractual duty to pay benefits until the
insured obtains a judgment establishing the liability and underinsured status of the other
motorist. Brainard, 216 S.W.3d at 818. Because Request for Production No. 9 is inappropriate,
outside the scope of proper discovery, and is duplicitous of request numbers 2, 3, 4, and 5,
Defendant has objected and reasserts its objections.
10. Complete and legible photocopies or audible recordings of every written or oral
statement obtained by you or on your behalf from any person designated by any party as
having knowledge ofrelevant facts pursuantto Texas Rule of Civil Procedure 194.2(e).
RESPONSE:
Defendant will supplement response.
11. If already produced herein, a complete copy of every primary, umbrella, and
excess insurance policy or agreement, including all declarations page(s), endorsements,
aniendments, riders, and attaclunents in effect when the subject collision occurred and
providing coverage to Plaintiff for injuries suffered in the subject collision.
RESPONSE:
The Defendant objects to this request to the extent that it is outside the scope of discovery
as it regards matters that are not relevant to the subject matter of this present lawsuit,
seeks information which is not relevant to the claims asserted by the Plaintiff, and is not
reasonably calculated to lead to the discovery of admissible evidence pursuant to the
Texas Rules of Civil Procedure. Defendant will supplement response.·
DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL PAGE13
#1468054/77325
MR 105
----~------~---1 ----------------,
""!
Plaintiff's request is for documents that are neither relevant nor likely to lead to
admissible evidence to prove Plaintiff's damages in the subject motor vehicle accident.
Therefore, Defendant maintains its objection, but agrees to produce a certified copy of Plaintiff's
policy.
12. Answered with no objections.
13. All non-waiver agreements, reservation of rights letters, and other documents or
co=unications regarding any contractual obligation owed to you by Plaintiff or
condition precedent to recovery with which Plaintiff must comply.
RESPONSE:
Defendant objects to this request as it is overly broad, vague and unduly burdensome.
Defendant further objects to this request to the extent that it is outside the scope of
discovery as it regards matters that are not relevant to the subject matter of this present
lawsuit, seeks information which is not relevant to the claims asserted by the Plaintiff,
and is not reasonably calculated to lead to the discovery of admissible evidence pursuant
to the Texas Rules of Civil Procedure. Defendant further objects to this request to the
extent that the documents called for therein is not relevant to any issue in this cause. The
Plaintiff has yet to obtain judgment establishing the liability and underiusured/uninsured
status of the other motorist. Brainard v. Trinity Universal Insurance Company, 216
S.W.3d.809 (Tex. 2006). See also Henson v. Southern Farm Bureau Casualty Insurance
Company, 17 S.W.3d 652, 653-54 (Tex. 2000). Defendant further objects as Plaintiff is
not entitled to discovery of privileged information regarding bad-faith claims so long as
the insurance company's liability under the underlying liability claim remains
undetermined. See Maryland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d 455, 457-58
(Tex. 1982). Defendant further objects to this request on the grounds it violates the
attorney client, attorney work product, witness statement and party communication
privileges.
Plaintiff's request is for documents that are neither relevant nor likely to lead to
admissible evidence to prove Plaintiff's damages in the subject motor vehicle accident. The
Texas Supreme Court has held that a UM/UIM carrier is under no contractual duty to pay
benefits until the insured obtains a judgment establishing the liability and uuderinsured status of
the other motorist. Brainard, 216 S.W.3d at 818. Because Request for Production No. 13 is
DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL PAGE14
#1468054/77325
MR 106
-----~---------·-,
C I
. ··.·... 1
inappropriate and outside the scope of proper discovery, Defendant has objected and reasserts its
objections.
14. All documents relating to any initial determination, temporary determination,
tentative determination, or final determination regarding whether Plaintiff's claim herein
is payable or not payable. !\
r.~
RESPONSE:
'
Defendant objects to this request as it is overly broad, vague and unduly burdensome.
Defendant further objects to this request on the grounds it violates the attorney client,
attorney work product, witness statement and party communication privileges. Defendant
further objects to this request to the extent that it is outside the scope of discovery as it
regards matters that are not relevant to the subject matter of this present lawsuit, seeks
information which is not relevant to the claims asserted by the Plaintiff, and is uot
reasonably calculated to lead to the discovery of admissible evidence pursuant to the
Texas Rules of Civil Procedure. Defendant further objects to this interrogatory in that the
Plaintiff has the burden of proof to evince that relevant to any issue in this cause. In
order for the Plaintiff to recover under the.ir UIM claim, they must prove that the
purported underinsured/uninsured motorist negligently caused the accident that resulted
in their purported damages. See Allstate Ins. Co. v. Bonner, 51 S.W.3d 289, 291-92
(Tex.2001); Wellisch v. United Servs. Auto. Ass'n, 75 S.W.3d 53, 57 (Tex.App.-San
Antonio 2002, pet. denied). Defendant further objects to this request to the extent that the
documents called for therein is not relevant to any issue in this cause. The Plaintiff has
yet to obtain judgment establishing the liability and underinsured/uninsured status of the
other motorist. Brainardv. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
S.W.3d 652, 653-54 (Tex. 2000).
Plaintiff's request is for documents that are neither relevant nor likely to lead to
admissible evidence to prove Plaintiff's damages in the subject motor vehicle accident. The
Texas Supreme Court has held that a UM/UIM carrier is under no contractual duty to pay
benefits until the insured obtains a judgment establishing the liability and underinsured status of
the other motorist. Brainard, 216 S.W.3d at 818. Because Request for Production No. 14 is
inappropriate and outside the scope of proper discovery, Defendant has objected and reasserts its
objections.
DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL PAGE15
#1468054/77325
MR 107
--, ,-
---.-,-----· ~­ -.. ·.-;
'
15. Answered without objections.
16. Answered without objections.
17. Answered without objections.
18. All documents, records, reports, notations, and/or memoranda regarding the
Plaintiff from persons and/or entities that compile information regarding bodily injury
claims, health insurance claims, liability/property/casualty insurance claims, worker's
compensation claims, and other insurance claims, including but not limited to the
Insurance Services Office ("ISO"), Southwest Index Bureau, and all similar persons or
entities.
RESPONSE:
Defendant objects to this request as it is overly broad, vague and unduly burdensome.
Defendant further objects to this request on the grounds it violates the attorney client,
attorney work product, witness statement and party communication privileges. Defendant !.
!:
further objects to this request to the extent that it is outside the s_cope of discovery as it
regards matters that are not relevant to the subject matter of this present lawsuit, seeks
information which is not relevant to the claims asserted by the Plaintiff, and is not
reasonably calculated to lead to the discovery of admissible evidence pursuant to 1he
Texas Rules of Civil Procedure. Defendant asserts its privileges relating to computer
programs, manuals, and database information to the extent that it constitutes Trade
Secrets and other proprietary information. See Tex. R. Civ. Evidence 507; Tex. R. Civ.
P. 76(a)(2)(c); Computer Assoc. Int 7 v. Altai; Inc., 918 S.W.2d 453, 455 (Tex. 1996),
RESTATEMENT (213) OF TORTS - 757, comment (b). Plaintiff has the burden of
establishing the information requested herein is necessary for a fair adjudication of this
claim which has not been established to date. Defendant asserts that the benefit that
Plaintiff might obtain from 1his inforrnation, if any, doe s not and cannot outweigh harm
of disclosure to the defendant. See In re Leviton Mfg. Co. Inc., 1 S.W.3d 898, 902 (Tex.
App.-Waco 1999, orig. proceeding).
Plaintiffs request is for documents that are neither relevant nor likely to lead to
admissible evidence to prove Plaintiffs damages in 1he subject motor vehicle accident. The
Texas Supreme Court has held 1hat a UM/UIM carrier is under no contractual duty to pay
benefits until the insured obtains a judgment establishing the liability and underinsured status of
the other motorist Brainard, 216 S.W.3d at 818. Because Request for Production No. 18 is
DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL PAGE 16
# t46sos4n732s
MR 108
-----~---------·-,
I !
inappropriate and outside the scope of proper discovery, Defendant has objected and reasserts its
objections.
19. All peer reviews, audits, medical summaries, memoranda, notes, letters, and other
documents relating to or compiled from the medical records that Plaintiff has submitted
for payment pursuant to the policy at issue herein and/or injuries that Plaintiff claims
were caused by the collision made the basis of this lawsuit.
I
II.
RESPONSE: !
Defendant objects to this request as it is overly broad, vague and unduly burdensome.
Defendant further objects to this request on the grounds it violates the attorney client,
attorney work product, witness statement and party communication privileges. Defendant ..
i\
further objects to this request to the extent that it is outside the scope of discovery as it jl
regards matters that are not relevant to the subject matter of this present lawsuit, seeks
j'.
information which is not relevant to the claims asserted by the Plaintiff, and is not
reasonably calculated to lead to the discovery of admissible evidence pursuant to the I
i
Texas Rules of Civil Procedure. Defendant further objects to this request to the extent
that the documents called for therein is not relevant to any issue in this cause. The
Plaintiff has yet to obtain judgment establishing the liability and underinsured/uninsured
status of the other motorist. Brainard v. Trinity Universal Insurance Company, 216
S.W.3d.809 (Tex. 2006). See also Henson v. Southern Farm Bureau Casualty Insurance
Company, 17 S.W.3d 652, 653-54 (Tex. 2000). Defendant further objects as Plaintiff is
not entitled to discovery of privileged information regarding bad-faith claims so long as
the insurance company's liability under the underlying liability claim remains I
undetermined. See Maryland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d 455, 457-58 i
I
(Tex. 1982).
Plaintiff's request is for documents that are neither relevant nor likely· to lead to
admissible evidence to prove Plaintiffs damages in the subject motor vehicle accident. The
Texas Supreme Court has held that a UM/UIM carrier is under no contractual duty to pay
benefits until the insured obtains a judgment establishing the liability and underinsured status of
the other motorist. Brainard, 216 S.W.3d at 818. Because Request for Production No. 19 is
inappropriate and outside the scope of proper discovery, Defendant has objected and reasserts its
objections.
DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL PAGE17
#1468054/77325
MR 109
! '
- - - - - - - - - - - - - - - -,
. ,-- -``-~-``-----~--~-
20. All liability work-ups or reports relating to Plaintiffs claim for uninsured/underinsured
motorist coverage benefits.
RESPONSE:
Defendant objects to this request as it is overly broad, vague and unduly burdensome.
Defendant further objects to this request on the grounds it violates the attorney client,
attorney work product, witness statement and party communication privileges. Defendant
forther objects to this request to the extent that it is outside the scope of discovery as it
regards matters that are not relevant to the subject matter of this present lawsuit, seeks
infonnation which is not relevant to the claims asserted by the Plaintiff, and is not
reasonably calculated to lead to the discovery of admissible evidence pursuant to the
Texas Rules ·of Civil Procedure. Defendant further objects to this request to the extent
that the documents called for therein is not relevant to any issue in this cause. The
Plaintiff has yet to obtain judgment establishing the liability and underinsured/uninsured
status of the other motorist Brainard v. Trinity Universal Insurance Company, 216
S.W.3d.809 (Tex. 2006). See also Henson v. Southern Farm Bureau Casualty hisurance
Company, 17 S.W.3d 652, 653-54 (Tex. 2000). Defendant further objects as Plaintiff is
not entitled to discovery of privileged information regarding bad-faith claims so long as
the insurance company's liability under the underlying liability claim remains
undetermined. See Maryland Am. Gen. Ins. Co. v. Blaclanon, 639 S.W.2d 455, 457-58
(Tex. 1982).
Plaintiffs request is for documents that are neither relevant nor likely to lead to
admissible evidence to prove Plaintiffs damages in the subject motor vehicle accident. ·The
Texas Supreme Court has held that a UMIUIM carrier is under no contractual duty to pay
benefits until the insured obtains a judgment establishing the liability and underinsured status of
the other motorist. Brainard, 216 S.W.3d at 818. Because Re~uest for Production No. 20 is
inappropriate and outside the scope of proper discovery, Defendant has objected and reasserts its
objections.
21. All documents relating to your use, if any, of computer software programs in reviewing,
analyzing, and/or evaluating claims of injury in motor vehicle collisions during 2013 and
2014.
RESPONSE:
DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL PAGE18
# 1468054/77325
MR 110
-----~---------·-,
f I --------------·-,
Defendant objects to this request on the grounds it violates the attorney client, attorney
work product, witness statement and party communication privileges. Defendant further
objects to this request as it is overly broad, vague and unduly burdensome. Defendant
further objects to this request to the extent that it is outside the scope of discovery as it
regards matters that are not relevant to the subject matter of this present lawsuit, seeks
information which is not relevant to the claims asserted by the Plaintiff, and is not
reasonably calculated lo lead to the discovery of admissible evidence pursuant to the
Texas Rules of Civil Procedure. Defendant asserts its privileges relating to computer
programs, manuals, and database information to the extent that it constitutes Trade
Secrets and other proprietary information. See Tex. R. Civ. Evidence 507; Tex. R. Civ.
P. 76(a)(2)(c); Computer Assoc. Int. 7 v. Altai, Inc., 918 S.W.2d 453, 455 (Tex. 1996),
RESTATEMENT (213) OF TORTS - 757, comment (b). Plaintiff has the burden of
establishing the information requested herein is necessary for a fair adjudication of this
claim which has not been established to date. Defendant asserts that the benefit that
Plaintiff might obtain from this information, if any, doe s not and cannot outweigh harm
of disclosure to the defendant. See In re Leviton Mfg. Co. Inc., I S.W.3d 898, 902 (Tex.
App.-Waco 1999, orig. proceeding). Defendant further objects to this request to the
extent that the documents called for therein is not relevant to any issue in this cause. The
Plaintiff has yet to obtain judgment establishing the liability and underinsured/uninsured
status of the other motorist. Brainard v. Trinity Universal Insurance Company, 216
S.W.3d.809 (Tex. 2006). See also Henson v. Southern Farm Bureau Casualty Insurance
Company, 17 S.W.3d 652, 653-54 (Tex. 2000). Defendant further objects as Plaintiff is
not entitled to discovery of privileged information regarding bad-faith claims so long as
the insurance company's liability under the underlying liability claim remains
undetermined. See M01yland Am. Gen. Ins. Co. v. Blaclanon, 639 S.W.2d 455, 457-58
(Tex. 1982).
Plaintiffs request is for documents that are neither relevant nor likely to lead to
admissible evidence to prove Plaintiffs damages in the subject motor vehicle accident. The
Texas Supreme Court has held that a UM/UIM carrier is under no contractual duty to pay
benefits until the insured obtains a judgment establishing the liability and underinsured status of
the other motorist. Brainard, 216 S.W.3d at 818. Because Request for Production No. 21 is
inappropriate and outside the scope of proper discovery, Defendant has objected and reasserts its
objections.
DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL PAGE19
#1468054/77325
MR 111
------·-,
22. All documents relating to your use, if any, of computer software programs in reviewing,
analyzing, and/or evaluating Plaintiff's claims of injury in the motor vehicle collision that
forms the basis of this lawsuit.
RESPONSE:
Defendant objects to this request on the grounds it violates the attorney client, attorney
work product, witness statement and party communication privileges. Defendant further
objects to this request as it is overly broad, vague and unduly burdensome. Defendant
further objects to this request to the extent that it is outside the scope of discovery as it
regards matters that are not relevant to the subject matter of this present lawsuit, seeks
information which is not relevant to the claims asse1ted by the Plaintiff, and is not
reasonably calculated to lead to the discovery of admissible evidence pursuant to the
Texas Rules of Civil Procedure. Defendant assetts its privileges relating to computer
programs, manuals, and database information to the extent that it constitutes Trade
Secrets and other proprietary information. See Tex. R. Civ. Evidence 507; Tex. R. Civ.
P. 76(a)(2)(c); Computer Assoc. Int. 7 v. Altai, Inc., 918 S.W.2d 453, 455 (fex. 1996),
RESTATEMENT (213) OF TORTS - 757, coturnent (b). Plaintiff has the burden of
establishing the information requested herein is necessary for a fair adjudication of this
claini which has not been established to date. Defendant asserts that the benefit that
Plaintiff might obtain from this information, if any, doe s not and cannot ontweigh harm
of disclosure to the defendant. See Jn re Leviton Mfg. Co. Inc., 1 S.W.3d 898, 902 (Tex.
App.-Waco 1999, orig. proceeding). Defendant further objects to this request to the
extent that the documents called for therein is not relevant to any issue in this cause. The
Plaintiff has yet to obtain judgment establishing the liability and nnderinsured/uninsured
status of the other motorist. Brainard v. Trinity Universal Insurance Company, 216
S.W.3d.809 (Tex. 2006). See also Henson v. Southern Fmw Bureau Casualty Insurance
Company, 17 S.W.3d 652, 653-54 (Tex. 2000). Defendant further objects as Plaintiff is
not entitled to discovery of privileged information regarding bad-faith claims so long as
the insurance company's liability under the underlying liability claim remains
undetermined. See Maryland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d 455, 457-58
(Tex. 1982).
Plaintiffs request is for documents that are neither relevant nor likely to lead to
admissible evidence to prove Plaintiff's damages in the subject motor vehicle accident. The
Texas Supreme Court bas held that a UM/UIM carrier is under no contractual duty to pay
benefits until the insured obtains a judgment establishing the liability and underinsured status of
the other motorist. Brainard, 216 S.W.3d at 818. Because Request for Production No. 22 is
DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL PAGE20
#t 46sos4n7325
MR 112
inappropriate and outside the scope of proper discovery, Defendant has objected and reasserts its
objections.
23. All documents containing your policies, procedures, processes, and/or rules used by your
employees to assist in their evaluation of unillsured/underinsured motorist claims.
RESPONSE:
Defendant objects to this request as it is overly broad, vague and unduly burdensome.
Defendant further objects to this request on the grounds it violates the attorney client,
attorney work product, witness statement and party communication privileges. Defendant
further objects to this request to the extent that it is outside the scope of discovery as it
regards matters that are not relevant to the subject matter of this present lawsuit, seeks
information which is not relevant to the claims asserted by the Plaintiff, and is not
reasonably calculated to lead to the discovery of admissible evidence pursuant to the ii
I.!
Texas Rules of Civil Procedure. Defendant further objects to this request to the extent I.
that the documents called for therein is not relevant to any issue in this cause. The !'
Plaintiff has yet to obtain judgment establishing the liability and underinsured/uninsured i.
status of the other motorist. Brainard v. Trinity Universal Insurance Company, 216
S.W.3d.809 (Tex. 2006). See also Henson v. Southern Farm Bureau Casualty Insurance
Company, 17 S.W.3d 652, 653-54 (Tex. 2000). Defendant further objects as Plaintiff is
not entitled to discovery of privileged information regarding bad-faith claims so long as
the insurance company's liability under the underlying liability claim remains
undetermined. See Mmyland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d 455, 457-58
(Tex. 1982).
Plaintiffs request is for documents that are neither relevant nor likely to lead to
admissible evidence to prove Plaintiff's damages in the subject motor vehicle accident. The
Texas Supreme Court has held that a UM/UIM carrier is under no contractual duty to pay
benefits until the insured obtains a judgment establishing the liability and underinsured status of
the other motorist. Brainard, 216 S.W.3d at 818. Because Request for Production No. 23 is
inappropriate and outside the scope of proper discovery, Defendant has objected and reasserts its
objections.
24. All documents containing your policies, procedures, processes, and/or rules used by your
employees to assist in their evaluation of automobile collision bodily injury claims.
DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL PAGE2l
#1468054177325
MR 113
- - - - - , . . - - - - - - - - - · · · -, ! I -,
RESPONSE:
Defendant objects to this request as it is overly broad, vague and unduly burdensome.
Defendant further objects to this request on the grounds it violates the attorney client,
attorney work product, witness statement and party communication privileges. Defendant
further objects to this request to the extent that it is outside the scope of discovery as it
regards matters that arc not relevant to the subject matter of this present lawsuit, seeks
information which is not relevant to the claims asserted by the Plaintiff, and is not
reasonably calculated to lead to the discovery of admissible evidence pursuant to the
Texas Rules of Civil Procedure. Defendant further objects to this request to the extent
that the documents called for therein is not relevant to any issue in this cause. The
Plaintiff has yet to obtain judgment establishing the liability and underinsured/uninsured
status of the other motorist. Brainard v. Trinity Universal Insurance Company, 216
S.Wc3d.809 (Tex. 2006). See also Henson v. Southern Farm Bureau Casualty Insurance
Company, 17 S.W.3d 652, 653-54 (Tex. 2000). Defendant further objects as Plaintiff is
not entitled to discovery of privileged information regarding bad-faith claims so long as
the insurance company's liability under the underlying liability claim remains
undetermined. See Maryland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d 455, 457-58
(Tex. 1982).
Plaintiff's request is for documents that are neither relevant nor likely to lead to
admissible evidence to prove Plaintiff's damages in the subject motor vehicle accident. The ~-
Texas Supreme Court has held that a UM/UIM carrier is under no contractual duty to pay
benefits until the insured obtains a judgment establishing the liability and underinsured status of
the other motorist. Brainard, 216 S.W.3d at 818. Because Request for Production No. 24 is
inappropriate and outside the scope of proper discovery, Defendant has objected and reasserts its
objections.
25. Answered without objections.
26. All reports, memoranda, and other documents related to your evaluation of any
claim for benefits made by Plaintiff other than the claim at issue herein.
RESPONSE:
Defendant objects to this request as it is overly broad, vague and unduly burdensome.
Defendant further objects to this request on the grounds it violates the attorney client,
DEFENDANT'S RESPONSE TO PLAJNTIFF'S MOTION TO COMPEL PAGE22
#1468054/77325
MR 114
I '
-.-··-.-.
attorney work product, witness statement and party communication privileges. Defendant
further objects to this request to the extent that it is outside the scope of discovery as it
regards matters that are not relevant to the subject matter of this present lawsuit, seeks
information which is not relevant to the claims asserted by the Plaintiff, and is not
reasonably calculated to lead to the discovery of admissible evidence pursuant to the
Texas Rules of Civil Procedure. Defendant further objects to this request to the extent
that the documents called for therein is not relevant to any issue in this cause. The
Plaintiff has yet to obtain judgment establishing the liability and underinsured/uninsured
status of the other motorist. Brainard v. Trinity Universal Insurance Company, 216
S.W.3d.809 (Tex. 2006). See also Henson v. Southern Farm Bureau Casualty Insurance
Company, 17 S.W.3d 652, 653-54 (Tex. 2000). Defendant further objects as Plaintiff is
not entitled to discovery of privileged information regarding bad-faith claims so long a~
the insurance company's liability under the underlying liability claim remains
undetermined. See Maryland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d 455, 457-58
(Tex. 1982).
Plaintiffs request 1s for documents that are neither relevant nor likely to lead to 1•
admissible evidence to prove Plaintiffs damages in the subject motor vehicle accident. The
Texas Supreme Court has held that a UM/UIM carrier is under no contractual duty to pay
benefits until the insured obtains a judgment establishing the liability and underinsured status of
the other motorist. Brainard, 216 S.W.3d at 818. Because Request for Production No. 26 is
inappropriate and outside the scope of proper discovery, Defendant has objected and reasserts its
objections.
27. All documents relating to every initial determination, temporary determination, tentative
determination, or final determination regarding whether any of Plaintiffs claims other
than that at issue herein was payable or not payable.
RESPONSE:
Defendant objects to this request as it is overly broad, vague and unduly burdensome.
Defendant further objects to this request on the grounds it violates the attorney client,
attorney work product, witness statement and party communication privileges. Defendant
further objects to this request to the extent that it is outside the scope of discovery as it
regards matters that are not relevant to the subject matter of this present lawsuit, seeks
information which is not relevant to the claims asserted by the Plaintiff, and is not
DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL PAGE23
#1468054/77325
MR 115
.!
reasonably calculated to lead to the discovery of admissible evidence pursuant to the
Texas Rules of Civil Procedure. Defendant further objects to this request to the extent
that the documents called for therein is not relevant to any issue in this cause. The
Plaintiff has yet to ohtainjudgment establishing the liability and underinsured/uninsured
status of the other motorist. Brainard v. Trinity Universal Insurance Company, 216
S.W.3d.809 (Tex. 2006). See also Henson v. Southern Farm Bureau Casualty Insurance
Company, 17 S.W.3d 652, 653-54 (Tex. 2000). Defendant further objects as Plaintiff is
not entitled to discovery of privileged information regarding bad-faith claims so long as
the insurance company's liability under the underlying liability claim remains
undetermined. See Maryland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d 455, 457-58
(Tex. 1982).
:
Plaintiff's request is for documents that are neither relevant nor likely to lead to k'
admissible evidence to prove Plaintiff's damages in the subject motor vehicle accident. The
Texas Supreme Court has held that a UMJUIM carrier is under no contractual duty to pay
k.:.
benefits until the insured obtains a judgment establishing the liability and underinsured status of ){
the other motorist. Brainard, 216 S.W.3d at 818. Because Request for Production No. 27 is
inappropriate and outside the scope of proper discovery, Defendant has objected and reasserts its
objections.
28. All documents regarding and/or discussing your refusal to pay the $20,000.00 that
you offered on April 28, 2014.
RESPONSE:
Defendant objects to this request as it is overly broad, vague and unduly burdensome.
Defendant further objects to this request on the grounds it violates the attorney client,
attorney work product, witness statement and party communication privileges. Defendant
further objects to this request to the extent that the documents called for therein is not
relevant to any issue in this cause. The Plaintiff has yet to obtain judgment establishing
the liability and underinsured/uninsured status of the other motorist. Brainard v. Trinity
Universal Insurance Company, 216 S.W.3d.809 (Tex. 2006). See also Henson v.
Southern Farm Bureau Casualty Insurance Company, 17 S.W.3d 652, 653-54 (Tex.
2000). Defendant further objects as Plaintiff is not entitled to discovery of privileged
information regarding bad-faith claims so long as the insurance company's liability under
the underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL PAGE24
#1468054/77325
MR 116
I I -~---~---------·-,
Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982). Defendant further objects to this request
to the extent that it is outside the scope of discovery as it regards matters that are not
relevant to the subject matter of this present lawsuit, seeks infonnation which is not
relevant to the claims asserted by the Plaintiff, and is not reasonably calculated to lead to
the discovery of admissible evidence pursuant to the Texas Rules of Civil Procedure.
Plaintiff's request is for documents that are neither relevant nor likely to lead to
admissible evidence to prove Plaintiff's damages in the subject motor vehicle accident. The
Texas Supreme Court has held that a UM/UIM carrier is under no contractual duty to pay
benefits until the insured obtains a judgment establishing the liability and underinsured status of
the other motorist. Brainard, 216 S.W.3d at 818. Because Request for Production No. 28 is
,!:
inappropriate and outside the scope of proper discovery, Defendant has objected and reasserts its
objections.
29. All documents reflecting, regarding, and/or discussing premium payments made by
Plaintiff for the automobile insurance policy in effect when the collision that is the
subject of this lawsuit occurred.
RESPONSE:
Defendant objects to this request as it is overly broad, vague and unduly burdensome.
Defendant further objects to this request on the grounds it violates the attorney client,
attorney work product, witness statement and party communication privileges. Defendant
further objects to this request to the extent that it is outside the scope of discovery as it
regards matters that are not relevant to the subject matter of this present lawsuit, seeks
information which is not relevant to the claims asserted by the Plaintiff, and is not
reasonably calculated to lead to the discovery of admissible evidence pursuaot to the
Texas Rules of Civil Procedure. Defendant further objects to this request to the extent
that the documents called for therein is not relevant to any issue in this cause. The
Plaintiff has yet to obtain judgment establishing the liability and underinsured/uninsured
status of the other motorist. Brainard v. Trinity Universal Insurance Company, 216
S.W.3d.809 (Tex. 2006). See also Henson v. Southern Fann Bureau Casualty Insurance
Company, 17 S.W.3d 652, 653-54 (Tex. 2000). Defendant further objects as Plaintiff is
not entitled to discovery of privileged information regarding bad-faith claims so long as
the insurance company's liability under the underlying liability claim remains
DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL PAGE25
#1468054177325
MR 117
undetermined. See Maryland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d 455, 457-58
(Tex. 1982).
Plaintiff's request is for documents that are neither relevant nor likely to lead to
admissible evidence to prove Plaintiff's damages in the subject motor vehicle accident. The
Texas Supreme Court has held that a UM/UIM carrier is under no contractual duty to pay
benefits until the insured obtains a judgment establishing the liability and underinsured status of
the other motorist. Brainard, 216 S.W.3d at 818. Because Request for Production No. 29 is
inappropriate and outside the scope of proper discovery, Defendant ha~ objected and reasserts its
objections.
30. All documents necessary to determine the name, address, telephone number, immediate
supervisor, and current employer of all of Defendant's adjusters, employees, agents,
and/or representatives that have reviewed Plaintiffs claim file from a claims handling or
claims review standpoint
RESPONSE:
Defendant objects to this request as it is overly broad, vagi.Je and unduly burdensome.
Defendant further objects to this request on the grounds it violates the attorney client,
attorney work product, witness statement and party communication privileges. Defendant
further objects to this request to the extent that it is outside the scope of discovery as it
regards matters that are not relevant to the subject matter of this present lawsuit, seeks
information which is not relevant to the claims asserted by the Plaintiff, and is not
reasonably calculated to lead to the discovery of admissible evidence pursuant to the
Texas Rules of Civil Procedure. Defendant further objects to this request to the extent
that the documents called for therein is not relevant to any issue in this cause. The
Plaintiff has yet to obtain judgment establishing the liability and underinsured/uninsured
status of the other motorist. Brainard v. Trinity Universal Insurance Company, 216
S.W.3d.809 (Tex. 2006). See also Henson v. Southern Farm Bureau Casualty Insurance
Company, 17 S.W.3d 652, 653-54 (Tex. 2000). Defendant further objects as Plaintiff is
not entitled to discovery of privileged information regarding bad-faith claims so long as
the insurance company's liability under the underlying liability claim remains
undetermined. See Maryland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d 455, 457-58
(Tex. 1982).
DEF.ENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL PAGE26
#1468054/7732.5
MR 118
---,------,-----------··-, -----,-----,---------------i
I '
Plaintiffs request is for documents that are neither relevant nor likely to lead to
admissible evidence to prove Plaintiffs damages in the subject motor vehicle accident. The
Texas Supreme Court has held that a UM/UIM carrier is under no contractual duty to pay
benefits until the insured obtains a judgment establishing the liability and underinsured status of
the other motorist. Brainard, 216 S.W.3d at 818. Because Request for Production No. 30 is
inappropriate and outside the scope of proper discovery, Defendant has objected and reasserts its
objections.
31. All documents and/or materials pertaining to any negotiations for settlement or offers of
settlement that were compiled or created prior to the time of the filing of this lawsuit.
RESPONSE:
Defendant objects to this request as it is overly broad, vague and unduly burdensome.
Defendant further objects to this request on the grounds it violates the attorney client,
attorney work product, witness statement and party communication privileges. Defendant
I
L.
further objects to this request to the extent that it is outside the scope of discovery as it
regards matters that are not relevant to the subject matter of this present lawsuit, seeks
information which is not relevant to the claims asserted by the Plaintiff; and is not
reasonably calculated to lead to the discovery of admissible evidence pursuant to the
Texas Rules of Civil Procedure. Defendant further objects to this request to the extent
that the documents called for therein is not relevant to any issue in this cause. The
Plaintiff has yet to obtain judgment establishing the liability and underinsured/uninsured
status of the other motorist. Brainard v. Trinity Universal Insurance Company, 216
S.W.3d.809 (Tex. 2006). See also Henson v. Southern Farm Bureau Casualty Insurance
Company, 17 S.W.3d 652, 653-54 (Tex. 2000). Defendant further objects as Plaintiff is
not entitled to discovery of privileged information regarding had-faith claims so long as
the insurance company's liability under the underlying liability claim remains
undetermined. See Maryland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d 455, 457-58
(Tex. 1982).
Plaintiff's request is for documents that are neither relevant nor likely to lead to
admissible evidence to prove Plaintiffs damages in the subject motor vehicle accident. The
Texas Supreme Court has held that a UM/UIM carrier is under no contractual duty to pay
DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL PAGE27
#1468054/77325
MR 119
I '
-------~------- ·-,
'
benefits until the insured obtains a judgment establishing the liability and underinsurcd status of
the other motorist. Brainard, 216 S.W.3d at 818. Because Request for Production No. 31 is
inappropriate and outside the scope of proper discovery, Defendant has objected and reasserts its
objections.
32. All documents, reports, or investigations relied upon by Defendant in denying or delaying
payment of any benefits to Plaintiff related to the claim that is the subject of this lawsuit.
RESPONSE:
Defendant objects to this request as it is overly broad, vague and unduly burdensome.
Defendant further objects to this request on the grounds it violates the attorney client,
attorney work product, witness statement and party conununication privileges. Defendant ;.
further objects to this request to the extent that it is outside the scope of discovery as it
regards matters that are not relevant to the subject matter of this present lawsuit, seeks
i
information which is not relevant to the claims asserted by the Plaintiff, and is not L
reasonably calculated to lead to the discovery of admissible evidence pursuant to the iI·
Texas Rules of Civil Procedure. Defendant further objects to this interrogatory in that the l
Plaintiff has the burden of proof to evince that relevant to any issue in this cause. In
order for the Plaintiff to recover under their UIM claim, they must prove that the
purported underinsured/uninsured motorist negligently caused the accident that resulted
in their purported damages. See Allstate Ins. Co. v. Bonner, 51 S.W.3d 289, 291-92
(Tex.2001); Wellisch v. United Servs. Auto. Ass'n, 75 S.W.3d 53, 57 (Tex.App.-San
Antonio 2002, pet. denied). Defendant further objects to this request to the extent that the
documents called for therein is not relevant to any issue in this cause. The Plaintiff has
yet to obtain judgment establishing the liability and underinsured/uninsured status of the
other motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
S.W.3d 652, 653-54 (Tex. 2000). Defendant further objects as Plaintiff is not entitled to
discovery of privileged information regarding bad-faith claims so long as the insurance
company's liability under the underlying liability claim remains undetermined. See
Maryland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d455, 457-58 (Tex. 1982).
Plaintiff's request is for documents that are neither relevant nor likely to lead to
admissible evidence to prove Plaintiffs damages in the subject motor vehicle accident The
Texas Supreme Court has held that a UM!UIM carrier is under no contractual duty to pay
DEFENDANT'S "RESPONSE TO PLAINTIFF'S MOTION TO COMPEL PAGE28
#1468054/77325
MR 120
.. ·.·1
benefits until the insured obtains a judgment establishing the liability and underinsured status of
the other motorist. Brainard, 216 S.W.3d at 818. Because Request for Production No. 32 is
inappropriate and outside the scope of proper discovery, Defendant has objected and reasserts its
objections.
33. All documents regarding any ~ontract that you have with any independent adjuster who
performed any service on your behalf related to Plaintiffs claim herein.
RESPONSE:
Defendant objects to this request as it is overly broad, vague and unduly burdensome.
Defendant further objects to this request on the grounds it violates the attorney client,
attorney work product, witness statement and party connnunication privileges. Defendant
further objects to this request to the extent that it is outside the scope of discovery as it I
regards matters that are not relevant to the subject matter of this present lawsuit, seeks
information which is not relevant to the claims asserted by 1he Plaintiff, and is not
reasonably calculated to lead to the discovery of admissible evidence pursuant to the
Texas Rules of Civil Procedure. Defendant further objects to this request to the extent
I!
that the documents called for therein is not relevant to any issue in this cause. The
Plaintiff has yet to obtain judgment establishing the liability and underinsured/uninsured
I
status of the other motorist. Brainard v. Trinity Universal Insurance Company, 216 I
S.W.3d.809 (Tex. 2006). See also Henson v. Southern Farm Bureau Casualty Insurance I
Company, 17 S.W.3d 652, 653-54 (Tex. 2000). Defendant further objects as Plaintiff is i
I'
not entitled to discovery of privileged information regarding bad-faith claims so long as I
the insurance company's liability under the underlying liability claim remains i
undetermined. See Mmyland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d 455, 457-58
(Tex. 1982). I
Plaintiffs request is for documents that are neither relevant nor likely to lead to
admissible evidence to prove Plaintiffs daroages in the subject motor vehicle accident. The
Texas Supreme Court has held that a UM/lTIM carrier is under no contractual duty to pay
benefits until the insured obtains a judgment establishing the liability and underinsured status of
the other motorist. Brainard, 216 S.W.3d at 818. Because Request for Production No. 33 is
DEFENDANT'S RESPONSE TO PLAJNTJFF'S MOTION TO COMPEL PAGE29
#1468054/77325
MR 121
inappropriate and outside the scope of proper discovery, Defendant has objected and reasserts its
objections.
34. All documents described or utilized in responding to Plaintiff's Interrogatories, Requests
for Production, and Requests for Admission.
RESPONSE:
Defendant objects to this request as it is overly broad, vague and unduly burdensome.
Defendant further objects to this request on the grounds it violates the attorney client,
attorney work product, witness statement and party communication privileges. Defendant
further objects to this request to the extent that it is outside the scope of discovery as it
regards matters that are not relevant to the subject matter of this present lawsuit, seeks
information which is not relevant to the claims asserted by the Plaintiff, and is not
reasonably calculated to lead to the discovery of admissible evidence pursuant to the
Texas Rules of Civil Procedure. Defendant further objects to this request to the extent
that the documents called for therein is not relevant to any issue in this cause. The
Plaintiff has yet to obtain judgment establishing the liability and underinsured/uninsured
status of the other motorist. Brainard v. Trinity Universal Insurance Company, 216
S."W.3d.809 (Tex. 2006). See also Henson v. Southern Farm Bureau Casualty Insurance
Company, 17 S.W.3d 652, 653-54 (Tex. 2000). Defendant further objects as Plaintiff is
not entitled to discovery of privileged information regarding bad-faith claims so long as
the insurance company's liability under the underlying liability claim remains
undetermined. See Maryland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d 455, 457-58
(Tex. 1982).
Plaintiff's request is for documents that are neither relevant nor likely to lead to
admissible evidence to prove Plaintiff's damages in the subject motor vehicle accident. The
Texas Supreme Court has held that a UM/UIM carrier is under no contractual duty to pay
benefits until the insured obtains a judgment establishing the liability and underinsured status of
the other motorist. Brainard, 216 S.W.3d at 818. Defendant further objects to this request as it is
an inappropriate discovery request. See Texas Tech. Univ. Health Sci. Ctr. v. Schild, 828 S.W.2d
502 (Tex.App.-El Paso, 1992, orig. prec.). Because Request for Production No. 34 is
DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL PAGE30
#1468054/77325
MR 122
! !
~ '
inappropriate and outside the scope of proper discovery, Defendant has objected and reasserts its
objections.
B. Defendant's Objections and Answers to Interrogatories
As previously stated and as it is obvious to the Court, Plaintiff is attempting to compel
the Defendant to produce responses that are not relevant to Plaintiff's claim for damages. To the
extent that Plaintiff is seeking responses for alleged extra-contractual claims, Defendant AAA
contends the proper procedure is for the Court to sever all extra-contractual claims from the
underlying contract claim in this case, and to deny Plaintiff's discovery requests related to the
extra-contractual claims. The Plaintiff should first have to prove his damages before Defendant
AAA be made to defend the extra contractual claims. Plaintiff has made the following
inappropriate and irrelevant requests for extra-contractual information for the following
interrogatories:
Interrogatory No. 3: (claim files);
Interrogatory No. 6: (individuals who performed claim work);
Interrogatory No. 8: (employees evaluating claim/authorizing payment);
Interrogatory No. 14: (procedures investigating/evaluating Plaintiff's claim);
Interrogatory No. 15: (identify documents regarding Plaintiffs failure to meet conditions
precedent; insurance agreement; coverage)
Interrogatory No. 16: (reasons for denial of Plaintiff's claim);
Interrogatory No. 17: (computer software program for evaluating claims);
Interrogatory No. 18: (manuals/guidelines associated with No. 17);
Interrogatory No. 19: (refusal to pay) and
Interrogatory No. 20: (release and policy provisions).
Plaintiff's request is for responses that are neither relevant nor likely to lead to admissible
evidence to prove Plaintiff's damages in the subject motor vehicle accident. The Texas Supreme
Court has held that a UM/UIM carrier is under no contractual duty to pay benefits until the
insured obtains a judgment establishing the liability and underinsured status of the other
DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL PAGE31
#1468054/77325
MR 123
motorist. Brainard, 216 S.W.3d at 818. Because Interrogatories Numbers 3, 6, 8, 14, 15, 16, 17,
18, 19, and 20 are inappropriate and outside the scope of proper discovery, Defendant has
objected and reasserts its objections.
After careful review and consideration, Defendant has considered Plaintiff's Motion to
Compel to the following interrogatories, and stands by and asserts the objections previously
submitted to the following requests:
Interrogatory No. 9: (personal injnry information regarding Plaintiff and tortfeasor);
Interrogatory No. 12: (factors that are the cause of Plai11tiff's damages); and
Interrogatory No. 13: (Plaintiff's actions or omission that caused or contributed to the
collision).
C. Defendant's Objections and Answers to Admissions
Of Plaintiff's 18 Requests for Admissions, all but the following three requests were
answered.
14. Based upon your investigation(s) and/or evaluation(s) of Plaintiff's
uninsured/underinsured motorist claim, you have determined that Plaintiff has sustained
damage in excess of the smn of (1) Plaintiff's $5,000.00 personal injury protection
coverage, and (2) Patricia Tompkins' $30,000.00 limit of liability insurance.
RESPONSE:
Defendant objects to this request as it is a two part question and vague. Without waiving
this objection, deny.
To the best of Defendant's ability, Defendant has responded to Plaintiff's request. Further
and to the extent, Plaintiff has requested Defendant to admit or confirm the amount of Plaintiff's
damages, the request calls for a hearsay response.
17. You have failed to pay any portion of the $20,000.00 that you offered Plaintiff on
April 28, 2014.
DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL PAGE32
#1468054/77325
MR 124
--·-,
! '
RESPONSE:
Defendant objects to this request in that it is vague and argumentative. Without waiving
this objection and subject thereto, Defendant admits that it has not paid the $20,000.00
offered to Plaintiff on April 28, 2014.
To the best of Defendant's ability, Defendant has responded to Plaintiffs request.
Plaintiffs request was a mischaracterization that Defendant "failed" to pay in that Plaintiffs
failed to agree to accept payment as a release of any and all claims presented.
18. Plaintiff has complied with all conditions precedent to recovering from the
uninsured/nnderinsured motorist coverage contained in your policy number
TPA016443353.
RESPONSE:
Defendant objects to this request as it is vague. Without waiving this objection and
subject thereto, Defendant cannot admit or deny. Reasonable inquiry has been made for
this information and the information !mown or easily obtainable is insufficient to enable
Defendant to admit or deny.
To the best of Defendant's ability, Defendant has rnsponded to Plaintiffs request.
III. Conclusion
Plaintiffs inappropriate discovery requests are an attempt to circumvent the Texas
Supreme Court's ruling in Brainard v. Trinity Universal Ins. Co., 216 S.W.3d 809 (Tex. 2006)
by seeking discovery to attempt to show that Plaintiffs injuries and damages fall within the
coverage of his insurance policy, and that, in turn, Plaintiff is entitled to recover his insurance
proceeds. Such requests are confidential and privileged information that is not relevant to
Plaintiff's claim and proof of damages. Accordingly, the Defendant has made appropriate
objections and fully answered all of Plaintiff's discovery requests to the best of Defendant's
ability at this time. Defendant reasserts its objections to those requests Plaintiff finds
objectionable. Defendant requests that this court deny Plaintiffs Motion to Compel in its
entirety.
DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL PAGE33
#1468054/77325
MR 125
------~-------·-,
------- ,--.--.
WHEREREFORE, PREMISES CONSIDERED, Defendant prays that tills Court deny
Plaintiffs Motion to Compel and for any and all other and further relief to which this Defendant
may show itself to be justly entitled.
Respectfully submitted,
WALTERS, BALIDO & CRAIN, L.L.P.
sis Carlos A. Balido
CARLOS A. BALIDO
State Bar No. 01631230 ii;
Meadow Park Tower, Suite 1500 I
i
10440 North Central Expressway [
Dallas, Texas 75231
214- 749-4805
214-760-1670 - Fax
BalidoEDocsNoti:fications@wbclawfum.com
CERTIFICATE OF SERVICE
This is to certify that on the l't day of October, 2015, a true and correct copy of the
foregoing document was forwarded to all counsel of record.
M. Raymond Hatcher
Alan J. Robertson
Justin A. Smith
Sloan, Bagley, Hatcher & Perry Law Firm
P. 0. Drawer 2909
101 East Whaley Street
Longview, TX 75606
sis Carlos A. Balido
Carlos A. Balido
DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL PAGE34
#1468054/77325
MR 126
Electronically Submitted
10/6/2015 9:50:33 AM
Gregg County District Clerk
By: Debbie Kinney ,deputy
AUSTIN  DALLAS  DECATUR  HOUSTON
CARLOS A. BALIDO
Partner
carlos.balido@wbclawfirm.com
2014-1365-A Service of Documents:
BalidoEDocsNotifications@wbclawfirm.com
(214) 347-8320 - Direct Line
(214) 347-8321 - Direct Facsimile
October 6, 2015
Via Fax: 903-757-7574
Mr. Raymond Hatcher
Mr. Alan Robertson
SLOAN, BAGLEY, HATCHER & PERRY LAW FIRM
101 East Whaley Street
Longview, Texas 75601
RE: Cause No. 201-1365-A; Thomas Jackson vs. AAA Texas County Mutual Insurance
Company, In the 188th Judicial District, Gregg County, Texas.
Our File No. 1493-77325
Dear Counsel:
Please be advised that Defendant’s Motion to Sever and Abate and Defendant’s Special
Exceptions have been set for hearing on November 6, 2015 at 10:30 a.m. in the above-
referenced case.
Thank you for your attention to this matter.
Very Truly Yours,
/s/ Carlos A. Balido
CARLOS A. BALIDO
CAB/NLR/sw
cc: Via EFile
Court Clerk
188th District Court
101 E. Methvin, Suite 408
Longview, TX 75601
WALTERS BALIDO & CRAIN L.L.P.
MEADOW PARK TOWER 10440 NORTH CENTRAL EXPRESSWAY SUITE 1500 DALLAS, TEXAS 75231
FAX: 214.760.1670 TELEPHONE: 214.749.4805
www.wbclawfirm.com MR 127
I '
CAUSE NO. 2014-1365 -A
THOMAS JACKSON § IN THE DISTRICT COURT
§
vs. § OF GREGG COUNTY, TEXAS
§
AAATEXASCOUNTYMUTUAL §
INSURANCE COMPANY § 1881• JUDICIAL DISTRICT
PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION FOR SEVERANCE AND/OR
PLEA IN ABATEMENT
TO TIIE HONORABLE COURT:
Plaintiff, Thomas Jackson, files this his Response to Defendant's Motion for Severance
and/or Plea in Abatement and, in support thereof, would respectfully show the Court as follows:
I. FACTS
On the morning of June 12, 2013, Thomas Jackson was driving west on Pliler Precise
Road. Mr. Jackson approached a traffic control signal and, in obedience to the laws of Texas,
came to a stop. When it was lawful for him to do so, he continued to drive west, across the
intersection of Pliler Precise Road and Judson Road. At the same time, Patricia Tompkins was
traveling north on Judson Road when, with complete disregard for the safety and welfare of other
persons or property, she disregarded the traffic control device on Judson Road, entered the
intersection where Mr. Jackson was traveling and struck the driver's side of Mr. Jackson's
vehicle.
When this collision occurred, Mr. Jackson was covered by a policy of automobile
insurance, which included UM/UIM coverage, issued by Defendant. Mr. Jackson timely and
properly notified Defendant of the motor vehicle collision that is the subject of this suit and has
Plaintiff's Response to Defendant's Motion
for Severance and/or Plea in Abatement Page]
MR 128
-----~---------~-,
fully complied with all of the conditions of that insurance policy prior to his filing suit against
Defendant.
Prior to April 28, 2014, Mr. Jackson compiled his medical records and other information
and sent it to Defendant to evaluate his claim, along with a demand for payment. Defendant, as it
was obliged to do, evaluated coverage and the claim. Based on that evaluation, Defendant
determined that Mr. Jackson's underinsured motorist claim is worth at least $55,000.00, as
evidenced by Defendant's April 28, 2014 offer to pay $20,000.00 in addition to $5,000.00
previously paid by Defendant in personal injury protection benefits and $30,000.00 previously
paid by Ms. Tompkins' insurer. Mr. Jackson made a demand for this undisputed portion of his
underinsured motorist coverage and Defendant refused.
IL STANDARD FOR SEVERANCE
As an initial matter, Defendant, as the party moving for severance and abatement, bears
the burden of establishing the propriety of the motion. A trial court only abuses its discretion in
failing to order a severance "when all of the facts and circumstances of the case unquestionably
require a separate trial to prevent manifest injustice, and there is no fact or circumstance
supporting or tending to support a contrary conclusion and the legal rights of the parties will not
be prejudiced thereby .... " Womack v. Berry, 291 S.W.2d 677, 683 (Tex. 1956). Prejudice is not
presumed simply because contract claims and extra-contractual claims are joined in the same
action and, accordingly, severance is not always mandatory. See Allstate Ins. Co. v. Hunter, 865
S.W.2d 189, 193-194 (Tex.App.-Corpus Christi 1993); see also Progressive County Mut. Ins.
Co. v. Parks, 865 S.W.2d 776, 778 (Tex.App.-El Paso 1993).
Plaintiffs Re!1ponse to Defendant's Motion
for Severance anti/or Plea in Abatement Page 2
MR 129
-----~-~------~··-,
III.ARGUMENT & AUTHORITIES
Defendant's argument is essentially this; anytime breach of contract claims and extra-
contractual bad faith claims are joined in a suit against an uninsured/underinsured insurance
carrier, severance is mandated. That is not the case. See Allstate Ins. Co. v. Hunter, 865 S.W.2d
189 (Tex.App.--Corpus Christi 1993); see Allstate Ins. Co. v. Evins, 894 S.W.2d 847
(Tex.App.--Corpus Christi 1995); Texas Farmers Ins. Co. v. Cooper, 916 S.W.2d 698
(Tex.App.-El Paso 1996). Certainly, there are a number of cases, to which Defendant has cited,
where severance and/or abatement in some context has been found to be proper.
All of those cases, however, are distinct from this one. In In re Trinity Universal Ins. Co.,
the insured joined the UM/UIM carrier to the suit against the third party, alleging breach of
contract and extra-contractual claims, before the third party claim had been resolved. See In re
Trinity Universal Ins. Co., 64 S.W.3d 463 (Tex.App.-Amarillo 2001). Similarly, F.A. Richard
involves the propriety of severing a suit against a defendant driver and the defendant's insurance
adjustor, not breach of contract claims from extra-contractual claims. F.A. Richard & Assoc. 's v.
Millard, 856 S.W.2d 765 (Tex.App.-Houston [!'1 Dist.] 1993). In Wilborn and Lerner, the crux
of the bad faith claim surrounded the amount of a settlement offer from the UM/UIM carrier.
State Farm Mut. Automobile Ins. Co. v. Wilborn, 835 S.W.2d 260 (Tex.App.-Houston [14th
Dist.] 1992); see also Mid-Century Ins. Co. of Tex. v. Lerner, 901 S.W.2d 749 (Tex.App.-
Houston [14th Dist.] 1995). The same is true in Millard, where the bad faith claims were
premised on the "inadequacy of the defendant's settlement offers." U.S. Fire Ins. Co. v. Millard,
847 S.W.2d 668, 671 (Tex.App.-Houston [1'1 Dist.] 1993). Balderma does not address the
propriety of severing breach of contract claims from extra-contractual claims against a UM/UIM
Plaintiff~·
Response to Defendant's Motion
for Severance and/or Plea in Abatement Page 3
MR 130
I I
insurer. Balderma v. Western Casualty Life Ins. Co., 794 S.W.2d 84, 89 (Tex.App.-San
Antonio 1990).
This case, however, does not involve a suit against a defendant driver and his insurance
adjustor joined in the same suit, or health insurance, nor does it involve a bad faith claim
premised on the inadequacy of a defendant's settlement offer. Defendant has failed to carry its
burden of showing that severance and abatement is proper and, thus, Defendant's motion should
be denied.
1. Plaintifrs Breach of Contract Claim and Bad Faith Claims for Failnre to
Tender an Amonnt the UM/UIM Carrier Determined to be Owed
There are two breach of contract claims in this suit. The first breach of contract claim
arises because this case, unlike those cited by Defendant, involves a carrier who, after an
apparent evaluation of coverage and the claim, ( 1) determined that the insured suffered a covered
loss and was entitled to UM/UIM benefits in the sum of$20,000.00 and (2) refused to tender that
sum upon Plaintiff's request. It is Defendant's failure to tender that sum, not the amount or
adequacy of that sum, that forms the basis for one of Plaintiff's breach of contract claims and the
entire basis for his bad faith claims. See Plaintiff's Second Am. Pet., pg. 3-5.
Defendant posits that this Court should apply a standard where severance should be
ordered where (1) the claim for the underinsured/uninsured motorist benefits is contractual and
the claim for penalty under Article 21.55 involves more than one cause of action, (2) the severed
claim is one that would be the proper subject of a lawsuit if independently asserted, and (3) the
Article 21.55 claim is not so interwoven with the tort action and contract action that they involve
the same facts and issues. See Defs Mtn, 3--4. Defendant cites no law or evidence in support of
the proposition that this case and the claims involved in it meet that standard. With respect to the
Plaintiffs Response to Defendant's Motion
for Severance and/or Plea in Abatement Page 4
MR 131
breach of contract claim and bad faith claims discussed above, it clearly does not. Plaintiffs
claim that Defendant's failure to tender the undisputed sum of benefits he is entitled to after
Defendant's evaluation of coverage and damages and his claim that that failure is bad faith
involve exactly the same facts and issues and are completely interwoven. As a result, those
claims rely on the same facts and legal issues, and there can be no undue prejudice or waste of
judicial resources in maintaining those claims in the same action. Thus, Defendant's motion for
severance and abatement of those claims fails under the standard Defendant asks this court to
apply.
2. Plaintiff's Breach of Contract Claim for Defendant's Failure to Properly
Value and Fully Pay Plaintiff's Damages Under the Policy
There is, in fairness, an additional breach of contract claim asserted by Plaintiff that does
assert that Plaintiff is entitled to an amount in excess of $20,000.00 in UM/UIM benefits. That
additional breach of contract claim, however, may only be severed from Plaintiffs bad faith
claims if Defendant made an offer to settle the insured's entire contract claim. In re State Farm
Mut. Auto. Ins. Co., 395 S.W.3d 229, 234 (Tex.App.-EI Paso 2012) citing to Liberty Nat. Fire
Ins. Co. v. Akin, 927 S.W.2d 627, 630 (Tex. 1996). In In re State Farm Mut. Auto Ins. Co., the
defendant satisfied its burden of proving that it offered to settle the entire contract claim by
presenting evidence in the "form of letters and affidavits" that it had offered "to settle in full each
of [the insured's] claims for underinsured bodily injury benefits and all damages [the insured]
claimed." See id. at 234 (internal quotations and citations omitted). Here, Defendant has
produced no evidence that they made an offer to settle in full each of Plaintiffs claims for
UM/UIM benefits and all damages Plaintiff claimed. There is not even an allegation that
Defendant made any settlement offer, let alone a settlement offer that was for the entirety of
PlaintifFs Response to Defentlant's Motion
for Severance and/or Plea in Abatement Page 5
MR 132
-----------~-,
Plaintiff's claims, in Defendant's motion. As a result, Defendant has failed to meet its burden of
pleading, production and persuasion in severing Plaintiff's second breach of contract claim from
Plaintiff's claims for bad faith. Because severance of Plaintiff's claims is improper, the
abatement of these claims is also improper.
3. Alternatively, the Court Should Consider Bifurcation as Opposed to
Severance
In Liberty National Fire Insurance Co. v. Akin, the Texas Supreme Court rejected "an
inflexible rule that would deny the trial court all discretion and ... require severance in every case
[iuvolving bad-faith insurance claims], regardless of the likelihood of prejudice." See Liberty
Nat. Fire Ins. Co. v. Akin, 927 S.W.2d 627, 630 (Tex. 1996). Issues of severance and discovery
generally rest within the discretion of the trial court. See In re CSX Corp., 124 S.W.3d 149,
151-52 (Tex. 2003; see also Akin, 927 S.W.2d at 629. While severance may be required where
a settlement offer has been made for the entirety of a claim, here there is no evidence and no
allegation that the Defendant has done so and the Court retains its discretion to order bifurcation
if it determines that some level of protection is warranted to avoid undue prejudice. See In re
Acceptance Indem. Ins. Co., 2008 WL 659438, at * 2 (Tex.App.-Beaumont March 13, 2008)
(finding that the trial court did not abuse its discretion in bifurcating the trial of breach of
contract and bad faith claims where there was insufficient evidence to determine if the insurer
had made offers to settle the entirety of a disputed claim); see also In re Allstate Texas Lloyds,
202 S.W.3d 895, 900 (Tex.App.--Corpus Christi, Edinburg 2006) (holding that trial court did
not abuse its discretion iu bifurcatiug breach of contract and bad faith claims where the insurer
failed to meet its burden of establishing that severance and abatement was required).
Plaintiff's Response to Defendant's Motion
for Severance and/or Plea in Abatement Page 6
MR 133
I I I I
IV. PRAYER FOR RELIEF
For these reasons, Plaintiff respectfully asks the Court to deny Defendant's Motion for
Severance and/or Plea in Abatement and for any and all other relief to which Plaintiff may be
justly entitled.
Respectfully submitted,
Isl Justin A. Smith
GLENN A. PERRY
State Bar No. 15801500
gperry@sloanfinn.com
JUSTJN A. SMITH
State Bar No. 24068415
jsmith@sloanfirrn.com
SLOAN, BAGLEY, HATCHER & PERRY LAW FIRM
101 East Whaley Street
Longview, Texas 75601
Telephone 903-757-7000
Facsimile 903-757-7574
ATTORNEYS FOR PLAJNTIFF
CERTIFICATE OF SERVICE
I hereby certify that on this the 5th day of November, 2015 a true and correct copy of the
foregoing document was served in accordance with the Texas Rules of Civil Procedure on the
following counsel of record:
Mr. Carlos A. Balido
WALTERS, BALIDO & CRAIN, L.L.P.
10440 North Central Expressway, Suite 1500
Dallas, Texas 75231
Isl Justin A. Smith
GLENN A. PERRY
JUSTJN A. SMITH
Plaintiffs Response to Defendant's Motion
for Severance and/or Plea in Abatement Page 7
MR 134
FILED
GREGG COUNTY; lF...XAS
CAUSE NO. 2014 - 1365 - A
· OF.:PlJT\'
'----C-_..!
THOMAS JACKSON § IN THE DISTRICT COURT
§
vs. § OF GREGG COUNTY, TEXAS
§
AAA TEXAS COUNTY MUTUAL §
INSURANCE COMPANY § 188 1h JUDICIAL DISTRICT
AGREED ORDER ON PLAINTIFF'S MOTION TO COMPEL
After considering Plaintiff, Thomas Jackson's Motion to Compel, the response, any
evidence submitted therewith, and arguments of counsel, the Court finds the Motion to be well
taken and therefore GRANTS Plaintiffs Motion to Compel.
It is therefore, ORDERED, ADJUDGED and DECREED that Plaintiff's Motion to i-.
F.
Compel is GRANTED and that all objections asserted by Defendant in its responses to Plaintiff's
First Requests for Admission, First Set of Interrogatories, and First Requests for Production are
hereby OVERRULED.
The Court further FINDS that the following requests are related to the incident
underlying the suit, Plaintiff's claims for breach of contract and/or Plaintiff's claims for
declaratory judgment: Plaintiff's Request for Admission No. 18; Plaintiff's Interrogatories Nos,
l, 2, 4, 5, 7, 9, 10, I 1, 12, 13, 15, and 20; Plaintiff's Requests for Production Nos. 2, 3, 4, 5, 7, 9, :- '
10, 11, 12, 13, 15, 16, 17, 18, 25, and 29; and Plaintiff's Request for Production No. 34, to the
extent it pertains to these immediately aforementioned discovery requests. It is, therefore,
Page I
MR 135
-----~-----------------,
ORDERED that Defendant shall fully respond to these requests and interrogatories and produce
all responsive information and documents within fourteen (14) days of October I, 2015. It is
fu11her ORDERED that should any information or material be withheld on the basis of privilege
from Defendant's responses to this discovery, Defendant shall produce a privilege log
identifying the information withheld, the specific privilege(s) asserted, information sufficient for
the Court and Plaintiff to assess the applicable of those privileges, and any and all other
information required by Texas Rule of Civil Procedure 193.3 within fourteen (14) days of
October 1, 2015.
The Court further FINDS that that the following requests are related to Plaintiff's extra- '[·:
'
contractual claims: Plaintiff's Request for Admission No, 17; Plaintiff's Interrogatories Nos. 3,
6, 8, 14, 16, 17, 18, and 19; Plaintiff's Requests for Production Nos. I, 6, 8, 14, 19, 20, 21, 22,
23, 24, 26, 27, 28, 30, 31, 32, and 33; and Plaintiff's Request for Production No. 34, to the extent
it pertains to these immediately aforementioned discovery requests. It is, therefore, ORDERED
that Defendant shall fully respond to these requests and interrogatories and produce all
responsive information and documents within forty-five (45) days of October I, 2015. It is
further ORDERED that should any information or material be withheld on the basis of privilege
from Defendant's responses to this discovery, Defendant shall produce a privilege log
identifying the information withheld, the specific privilege(s) asserted, information sufficient for
the Court and Plaintiff to assess the applicable of those privileges, and any and all other
information required by Texas Rule of Civil Procedure 193.3 within forty-five (45) days of
October l, 2015.
Page 2
MR 136
I I
• .. • >
•I ei\J, _(.,,
SIGNED on _-f"f~_:__ _ _ __ , 2015,
-1-w.J!-rvi~
JUDGE PRESIDING
I
I
j:;
:,..
r-·
i'
Page 3
MR 137
---~------``-,
FILED
GREGG COUNT',~ TEXAS
NOV 0 6 2015
CAUSE NO. 20 I 4-1365-A
THOMAS JACKSON § IN THE DISTRICT COURT 0
§
vs. § GREGG COUNTY, TEXAS
§
AAA TEXAS COUNTY MUTUAL §
1'H
INSURANCE COMPANY § 188 JUDICIAL DISTRICT
ORDER DENYING DEFENDANT AAA TEXAS COUNTY MUTUAL INSURANCE
COMP ANY'S MOTION FOR SEVERANCE AND PLEA IN ABATEMENT
On the (., --11.-i day of __N_o_\J_._____, 2015, came to be heard Defendant
AAA Texas County Mutual Insurance Company's Motion for Severance and Plea in Abatement
to Plaintiff's extra-contractual claims and causes of action. The court, after reviewing the
arguments of counsel and reviewing the documents on file, is of the opinion that said motion
should be DENIED.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED, that Defendant's
Motion for Severance and Plea in Abatement is DENIED its entirety, and the Plaintiffs extra-
contractual claims will not be severed from the underlying contract claim and the extra-
contractual clail_l!~Jl!e lk... ~Ott`` ~a*; +)"li.J -$till b~ bi~co:k~
not abated.
<1.t\ -to "':ft'....;~'" ~O\ e.c...tt1tt<:-W.= ~<\A.....'5,
SIGNED this (a f'h day of No u , 2015.
JUDGE PRESIDING
ORDER DENYING DEFENDANT'S MOTION FOR SEVERANCE AND
PLEA IN ABATEMENT- Solo Page
#14872448/77325
MR 138