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
AT TYLER TYLER, TEXAS
__________________________________________________________________
11/16/2015 5:51:19 PM
PAM ESTES
Clerk
IN Re AAA TEXAS COUNTY MUTUAL INSURANCE COMPANY
__________________________________________________________________
Original Proceeding from the 188th Judicial District Court
Of Gregg County, Texas
Trial Court Cause Number 2014-1365-A
__________________________________________________________________
RELATOR AAA TEXAS COUNTY MUTUAL INSURANCE COMPANY’S
EMERGENCY MOTION FOR TEMPORARY RELIEF
WALTERS, BALIDO & CRAIN, L.L.P.
Gregory R. Ave
State Bar No. 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
Case Number 12-15-__________-CV
IN THE TWELFTH DISTRICT COURT OF APPEALS
AT TYLER
__________________________________________________________________
IN Re AAA TEXAS COUNTY MUTUAL INSURANCE COMPANY
__________________________________________________________________
Original Proceeding from the 188th Judicial District Court
Of Gregg County, Texas
Trial Court Cause Number 2014-1365-A
__________________________________________________________________
RELATOR AAA TEXAS COUNTY MUTUAL INSURANCE COMPANY’S
EMERGENCY MOTION FOR TEMPORARY RELIEF
TO THE HONORABLE TYLER COURT OF APPEALS:
Pursuant to Texas Rule of Appellate Procedure 52.10(a), Relator AAA
Texas County Mutual Insurance Company (“AAA”) moves the Court for
an emergency stay of the trial court’s order compelling AAA to respond to
certain discovery requests propounded on AAA by Plaintiff and Real Party
in Interest Thomas Jackson (“Jackson”) regarding his extra-contractual
claims prior to a determination of his claim for underinsured motorist
(“UIM”) benefits, while AAA pursues an original proceeding from the trial
court’s orders denying AAA’s motion to sever and abate those extra-
contractual claims and compelling discovery, and show:
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AAA is the defendant in the underlying action and Jackson is the
plaintiff. Respondent is the Honorable David Brabham, Presiding Judge of
the 188th Judicial District Court of Gregg County, Texas (“the trial court”).
AAA files this Motion concurrently with their Petition for Writ of
Mandamus. All “MR __” references herein are to the indicated Tab of the
Verified Mandamus Record, with page numbers of the electronically filed
document. AAA’s counsel has attached a certificate of compliance to
certify that Jackson and the trial court have been notified by telephone,
facsimile, eServe, or hand delivery that a motion for temporary relief
would be filed. TEX. R. APP. P. 52.10.
Jackson sued AAA seeking to recover UIM benefits for injuries he
allegedly sustained as a result of a motor vehicle accident involving a
vehicle driven by Patricia Tompkins (“Tompkins”). [MR 6-14.] As a result
of the accident, Jackson submitted a claim to AAA for UIM benefits. [MR
1.] After evaluating Jackson’s claim, AAA offered Jackson $20,000.00 to
fully and finally settle any and all claims of Jackson for UIM benefits,
which was in addition to the $5,000.00 in personal injury protection (“PIP”)
benefits previously paid to Jackson by AAA, and the $30,000.00 he received
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from Tompkins. [Id.] Jackson rejected AAA’s settlement offer and
instituted the underlying lawsuit against AAA. [MR 2-3.]
In his second amended petition (i.e., the live pleading), Jackson seeks
UIM benefits under a Texas personal automobile policy number TPA-
016443353 issued by AAA to Jackson (“the policy”), as well as damages for
breach of contract, purported breach of the common law duty of good faith
and fair dealing, violations of the Texas Insurance Code, violations of the
Texas Deceptive Trade Practices Act (“DTPA”), and attorneys’ fees based
on his misguided request for declaratory relief under Chapter 37 of the
Texas Civil Practice and Remedies Code. [MR 6-14.] AAA’s alleged breach
of contract, common law bad faith, and statutory violations are, solely
based on Jackson’s demand AAA pay him the $20,000.00 previously
offered by AAA, and previously rejected by Jackson – but without any
settlement or finality of Jackson’s claims against AAA. In essence, it is the
contention of Jackson that AAA has breached the policy and acted in bad
faith by not funding Jackson’s UIM lawsuit against AAA (i.e., paying the
$20,000.00 offered by AAA and rejected by Jackson) – all before Jackson
obtains a legal determination of Tompkins’ liability, the amount of his
actual damages, and that such damages exceed the $5,000.00 in PIP and
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$30,000.00 in liability limits previously paid to Jackson, or the full limit of
liability available under Tompkins’ personal auto policy (whichever is
greater). [Id.]
On January 19, 2015, AAA filed its motion to sever and abate
Jackson’s extra-contractual claims, pending a fully adversarial trial to
determine the liability or fault of Tompkins in causing the accident with
Jackson, the amount of his actual damages, and a determination as to
whether Jackson’s actual damages exceed the $35,000.00 he has already
received or the limits of liability in Tompkins’ auto policy (whichever is
greater) (the “Motion”). [MR 66-80.] After various procedural
machinations, exchange of discovery, and a motion to compel filed by
Jackson, on October 6, 2015 AAA notified Jackson that the trial court had
set the hearing on its motion to sever and abate for November 6, 2015. [MR
127.] Jackson filed his response to the Motion on the day prior to the
hearing, November 5, 2015. [MR 128.] The trial court held the hearing on
the Motion and on the same day, November 6, 2015, signed an order
DENYING the Motion in its entirety, holding that Jackson’s “extra-
contractual claim will not be severed from the underlying contract claim
and the extra-contractual claims are not abated” – which necessarily
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includes discovery into same – and ordering that “trial shall be bifurcated
as to [Jackson’s] extra-contractual claims.” [MR 138.]
On the same day, the trial court entered an order on Jackson’s motion
to compel discovery responses from AAA wherein the trial court judicially
determined:
& the following requests are related to the
incident underlying the suit, [Jackson’s]
claims for breach of contract and/or
[Jackson’s] claims for declaratory judgment:
[Jackson’s] Request for Admission No. 18;
[Jackson’s] Interrogatories Nos. 1, 2,4,5, 7, 9,
10, 11, 12, 13, 15, and 20; [Jackson’s] Requests
for Production Nos. 2, 3, 4, 5, 7, 9, 10, 11, 12,
13, 15, 16, 17, 18, 25, and 29; and [Jackson’s]
Request for Production No. 34, to the extent it
pertains to these immediately aforementioned
discovery requests. It is, therefore, ORDERED
that [AAA] shall fully respond to these
requests and interrogatories and produce all
responsive information and documents . . .
& the following requests are related to the
[Jackson’s] extra-contractual claims:
[Jackson’s] Request for Admission No. 17;
[Jackson’s] Interrogatories Nos. 3, 6, 8, 14, 16,
17, 18, and 19; [Jackson’s] Requests for
Production Nos. 1, 6, 8, 14, 19, 20, 21, 22, 23,
24, 26, 27, 28, 30, 31, 32, and 33; and
[Jackson’s] Request for Production No. 34, to
the extent it pertains to these immediately
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aforementioned discovery requests. It is,
therefore, ORDERED that [AAA] shall fully
respond to these requests and interrogatories
and produce all responsive information and
documents . . .
[MR 135-37.]
As asserted in AAA’s Petition For Writ Of Mandamus, the trial court’s
order denying AAA’s request to sever and abate the extra-contractual
claims violates well established Texas law which requires a trial court both
sever and abate extra-contractual claims until such time as Jackson
establish he is legally entitled to recover UIM benefits and the insurer
subsequently failed to pay same. That is, unless and until Jackson obtains a
final judgment establishing the liability and underinsured status of
Tompkins, AAA has no contractual obligation to pay UIM benefits to him.
In this situation, a trial court is unquestionably required to both sever and
abate the extra-contractual claims; otherwise, AAA is subjected to manifest
injustice, prejudice, and irreparable harm.
As fully set forth in AAA’s petition, the trial court abused its
discretion in denying AAA’s motion to abate discovery as to Jackson’s
extra-contractual claims and by compelling AAA to engage in discovery
related to same. In this regard, the trial court’s actions are in direct
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contravention of well-established precedent from this Court, the Texas
Supreme Court, and other Texas courts of appeals. Finally, AAA has no
adequate remedy by appeal from such abuse.
This Court may grant temporary relief pending the determination of
an original proceeding. TEX. R. APP. P. 52.10(a). AAA seeks an emergency
stay, because the trial court’s failure to abate Jackson’s extra-contractual
claims (and potential discovery related thereto) now requires AAA to
produce documents, information, and answers to discovery which do not
relate to the only issues which are ripe for determination – the legal
liability of Tompkins, the amount of actual damages sustained by Jackson,
and whether Tompkins is in fact an underinsured motorist. Temporary
relief will prevent a waste of resources and preserve the status quo, while
allowing the Court the proper time to review the merits of AAA’s
mandamus petition.
PRAYER
WHEREFORE PREMISES CONSIDERED, Relator AAA Texas
County Mutual Insurance Company respectfully prays this Court stay the
trial court’s November 6, 2015 order compelling AAA to respond to
discovery propounded by Jackson which relate to his extra-contractual
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claims and which do not go to the issues delineated supra, and a stay of all
further trial court proceedings in this matter until such time as this Court
can review the merits and issue its opinion, and for general relief.
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 AAA TEXAS COUNTY
MUTUAL INSURANCE COMPANY
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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, Texas
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
Certificate of Conference
Pursuant to Texas Rule of Appellate Procedure 10, I hereby certify
that we contacted counsel for Jackson regarding the filing of this motion for
temporary relief. Counsel for Real-Party-In-Interest is opposed.
/s/ Gregory R. Ave
GREGORY R. AVE
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Certificate of Compliance
Pursuant to TEX. R. APP. P. 52.10(a), I hereby certify that Respondent
and counsel of record for Real-Party-in-Interest were notified that AAA is
seeking a temporary stay through this motion while its Writ of Mandamus
is under consideration.
/s/ Gregory R. Ave
GREGORY R. AVE
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