in Re Ernest Perry ( 2019 )

NUMBER 13-18-00676-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN RE ERNEST PERRY
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Longoria
Memorandum Opinion by Chief Justice Contreras1
Relator Ernest Perry filed a petition for writ of mandamus and supplemental petition
for writ of mandamus in the above cause seeking to compel the trial court to order the
deposition of a representative of the real party in interest, State Farm Mutual Automobile
1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not
required to do so. When granting relief, the court must hand down an opinion as in any other case.”); see
also id. R. 47.4 (distinguishing opinions and memorandum opinions).
Insurance Company (State Farm).2 We conditionally grant the petition for writ of
mandamus in part and deny it in part.
I. BACKGROUND
Perry filed suit against State Farm in cause number 2018-CV-3342-DC in the 267th
District Court of Calhoun County, Texas. In his “Original Petition,” Perry alleged that he
was injured in an automobile accident proximately caused by another driver, Rene
Barrientes, who was driving an underinsured3 vehicle. Perry alleged that he was an
insured driver of State Farm and that he was bringing the lawsuit to recover benefits
pursuant to his State Farm policy regarding uninsured/underinsured (UM/UIM) motorist
coverage. State Farm had not paid Perry these benefits, and thus Perry alleged a cause
of action against State Farm for breach of contract. He further sought a declaratory
judgment that he “was a covered person under a policy of insurance issued by [State
Farm] at the time of the collision,” that he “had uninsured/underinsured coverage under
the policy of insurance” issued by State Farm, “that an uninsured/underinsured driver,
Rene Barrientes, was the ‘at-fault’ party,” and that Barrientes “was negligent and/or
negligent per se and said negligence was the proximate cause” of Perry’s injuries.
In response to Perry’s petition, State Farm filed its “Special Exceptions and
Original Answer,” which included a general denial, the denial of conditions precedent,
2 This original proceeding arises from trial court cause number 2018-CV-3342-CV in the 267th
District Court of Calhoun County, Texas, and the respondent is the Honorable Jack W. Marr. See TEX. R.
APP. P. 52.2.
3 Under the insurance code, “uninsured or underinsured motorist coverage” means the provisions
of an automobile liability insurance policy that provide for coverage in at least the limits prescribed by the
transportation code that protects insureds who are legally entitled to recover damages for bodily injury,
sickness, disease, or death, or property damage resulting from the ownership, maintenance, or use of any
motor vehicle from owners or operators of uninsured or underinsured motor vehicles. TEX. INS. CODE ANN.
§ 1952.101 (West, Westlaw through 2017 1st C.S.).
2
special exceptions, and a request for offsets and credits. State Farm specially excepted
to Perry’s petition because it failed to “state the factual basis for any breach of contract”
and because it failed to “establish standing or a right to proceed” under the Uniform
Declaratory Judgment Act. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 37.001-.011 (West,
Westlaw through 2017 1st C.S.). In its denial of conditions precedent, State Farm denied
that Perry had “fully complied with all terms of the insurance policy as a condition
precedent to bringing this suit in that Plaintiff has failed to present sufficient information
to Defendant to show Plaintiff’s entitlement to the benefits claimed under the policy.”
State Farm requested offsets and credits as to Perry’s damages “including the amounts
paid or payable by the other vehicle’s liability insurance company and Personal Injury
Protection benefits paid by Defendant.” State Farm also pleaded that Perry’s request for
attorney’s fees was “not applicable or are moot.” State Farm generally denied Perry’s
claims and requested that Perry “be required to prove the charges and allegations against
Defendant by a preponderance of the evidence as is required by the Constitution and
laws of the State of Texas.”
Perry filed a notice of intent to take the deposition of a representative or
representatives of State Farm. He requested State Farm to produce the witness or
witnesses having the most knowledge of the following areas:
1. Any policy(ies) of insurance issued or underwritten by the Defendant
applicable to the collision made the subject of this suit;
2. The occurrence or non-occurrence of all condition(s) precedent
under the contract, including, but not limited to, coverage by the
Defendant; collision with an underinsured motorist; injury to the
Plaintiff; and compliance by the Plaintiff with the terms and conditions
of his policy(ies);
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3. Plaintiff’s reasonableness and necessity of past and future medical
bills caused by the collision made the subject of this suit;
4. Any facts supporting Defendant’s legal theories and defenses;
5. Any information regarding Defendant’s experts;
6. The amount and basis for the Defendant’s valuation of the Plaintiff’s
damages; and
7. The nature and causation of Plaintiff’s alleged injuries sustained in
the collision made the basis of this suit.
8. The damage sustained by all vehicles involved in the collision at
issue;
9. Whether Rene Barrientes was an uninsured/underinsured motorist
at the time of the collision;
10. Whether Rene Barrientes was driving an uninsured/underinsured
vehicle at the time of the collision;
11. Defendant’s contention that Plaintiff has failed to “fully comply with
all terms of the insurance policy as a condition precedent to bringing
this suit in that Plaintiff failed to present sufficient information to
Defendant to show Plaintiff’s entitlement to the benefits claimed
under the policy”;
12. Whether the term “uninsured/underinsured motor vehicle” is correctly
defined in the Defendant’s insurance policy at issue in this lawsuit;
13. Defendant’s claims and defenses regarding Plaintiff’s assertions in
this lawsuit;
14. Defendant’s contention that it is entitled to “offsets and credits” for
the personal injury protection (PIP) benefits;
15. Defendant’s contention that it is “entitled to all offsets and credits,
including the amounts paid or payable by the other vehicle’s liability
insurance company”; and
16. Defendant’s contention that it generally denies Plaintiff’s allegations.
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In response, State Farm filed a “Motion to Quash and for Protective Order.” In
relevant part, State Farm explained that Perry had a policy of insurance that includes
uninsured/underinsured motorist benefits and that the underlying accident was a covered
event pursuant to that policy. State Farm asserted that the remaining issues in the lawsuit
are liability as between Perry and Barrientes, and the amount of Perry’s damages
resulting from the motor vehicle accident alleged to be the basis of this lawsuit, “if any.”
In support of its motion, State Farm offered a stipulation stating, in its entirety, as follows:
Stipulation of Facts
1. The alleged accident at the basis of this suit occurred in Calhoun
County, Texas and involved Ernest Perry, Plaintiff in this lawsuit; and
2. Ernest Perry has a policy of insurance that included
uninsured/underinsured motorist benefits underwritten by State
Farm; and
3. The policy of insurance was in full force and effect on August 13,
2016 the date of the alleged accident; and
4. The underlying accident at the basis of this lawsuit is a covered event
under the policy of insurance that Ernest Perry has with State Farm.
State Farm objected to Perry’s notice of deposition as “overbroad, harassing and
irrelevant to the issues of liability, damages and coverage in light of the stipulation” and
pending “a judicial determination as to Barrientes’s negligence and/or liability for the
alleged motor vehicle accident, the existence and amount of Perry’s damages, if any, and
Barrientes’s status as an uninsured/underinsured motorist.” State Farm argued that the
notice of deposition should be quashed because (1) the topics extend beyond the issues
of liability and damages for the underlying accident and are irrelevant because State Farm
is not liable until these issues have been determined; and (2) any area of inquiry listed
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that requires a State Farm corporate representative to answer questions regarding the
policy are premature until the issues of liability, damages, and coverage have been
determined by a jury.
Perry filed a motion to compel the deposition. The trial court set the motion for a
hearing on November 19, 2018. According to the argument presented at the hearing,
Barrientes has settled Perry’s claims against him. The record before this Court contains
the settlement agreement which provides that Perry settled his claims regarding this
incident with Barrientes, Velma Morales Barrientes, Lyndon Southern Insurance
Company, and Pronto General Agency, Ltd. for $30,000. The agreement states that the
released parties “expressly deny all liability.”
After the hearing, which was not evidentiary in nature, the trial court granted State
Farm’s motion to quash and denied Perry’s motion to compel the deposition. This original
proceeding ensued. Perry contends that the trial court abused its discretion by quashing
the deposition and denying his motion to compel and further asserts that he lacks an
adequate remedy by appeal. This Court requested and received a response to the
petition for writ of mandamus from State Farm which generally reiterated the arguments
made previously in its motion to quash the deposition. Perry has filed a reply to State
Farm’s response and further filed a supplemental petition for writ of mandamus.
II. MANDAMUS
Mandamus is an “extraordinary” remedy. In re Sw. Bell Tel. Co., L.P., 235 S.W.3d
619, 623 (Tex. 2007) (orig. proceeding); see In re Team Rocket, L.P., 256 S.W.3d 257,
259 (Tex. 2008) (orig. proceeding). In order to obtain mandamus relief, the relator must
show that the trial court clearly abused its discretion and that the relator has no adequate
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remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004)
(orig. proceeding); see In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 462 (Tex. 2008)
(orig. proceeding). A party has no adequate remedy by appeal to challenge a discovery
order when the party’s ability to present a viable claim or defense will be impaired by the
trial court’s error. See, e.g., Able Supply Co. v. Moye, 898 S.W.2d 766, 771–72 (Tex.
1995) (orig. proceeding); In re Hinterlong, 109 S.W.3d 611, 633 (Tex. App.—Fort Worth
2003, orig. proceeding).
III. DISCOVERY
A party can seek discovery of unprivileged information that is relevant to the
subject matter of the lawsuit, including inadmissible evidence, as long as the request is
reasonably calculated to lead to the discovery of admissible evidence. TEX. R. CIV. P.
192.3(a); In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003) (orig. proceeding). However,
the broad scope of discovery is limited by the legitimate interests of the opposing party in
avoiding overly broad requests, harassment, or the disclosure of privileged information.
In re Am. Optical Corp., 988 S.W.2d 711, 713 (Tex. 1998) (orig. proceeding). Discovery
may be limited if (1) it is unreasonably cumulative or duplicative, or is obtainable from
some other source that is more convenient, less burdensome, or less expensive; or (2)
the burden or expense of the proposed discovery outweighs its likely benefit, taking into
account the needs of the case, the amount in controversy, the parties’ resources, the
importance of the issues at stake in the litigation, and the importance of the proposed
discovery in resolving the issues. TEX. R. CIV. P. 192.4.
The rules of civil procedure permit a party to take the deposition of “any person or
entity.” Id. R. 200.1(a); see Crown Cent. Petroleum Corp. v. Garcia, 904 S.W.2d 125,
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127 (Tex. 1995) (construing the former rules of civil procedure); In re Celadon Trucking
Servs., 281 S.W.3d 93, 97 (Tex. App.—El Paso 2008, orig. proceeding). Generally
speaking, a party to a suit has the right to depose the opposing party. See Mobile Oil
Corp. v. Floyd, 810 S.W.2d 321, 323–24 (Tex. App.—Beaumont 1991, orig. proceeding);
see also In re Luna, No. 13-16-00467-CV, 2016 WL 6576879, at *5 (Tex. App.—Corpus
Christi Nov. 7, 2016, orig. proceeding) (mem. op.); In re Doe, No. 13-10-000590-CV, 2011
WL 1158765, at *1 (Tex. App.—Corpus Christi Feb. 10, 2011, orig. proceeding) (per
curiam) (mem. op.). However, the person noticed for deposition also has the right to
protection “from undue burden, unnecessary expense, harassment, annoyance, or
invasion of personal, constitutional, or property rights.” TEX. R. CIV. P. 192.6; Crown Cent.
Petroleum Corp., 904 S.W.2d at 127; Monsanto Co. v. May, 889 S.W.2d 274, 276 (Tex.
1994).
IV. UM/UIM CASES
UM/UIM coverage provides payment to the insured of all amounts that the insured
is legally entitled to recover as damages from owners or operators of underinsured motor
vehicles because of bodily injury or property damage. See TEX. INS. CODE ANN.
§ 1952.105–.108 (West, Westlaw through 2017 1st C.S.). The insured’s recovery, if any,
cannot exceed the limits specified in the insurance policy and is reduced by the amount
recovered or recoverable from the insurer of the underinsured vehicle. Id.
The UM/UIM insurer is under no contractual duty to pay benefits until the insured
obtains a judgment establishing the liability and the underinsured status of the other
motorist. See Brainard v. Trinity Universal Ins. Co., 216 S.W.3d 809, 815 (Tex. 2006).
Therefore, to recover benefits under a UIM policy, a policy beneficiary must show (1) that
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the insured has underinsured motorist coverage, (2) that the underinsured motorist
negligently caused the accident that resulted in the covered damages, (3) the amount of
the insured’s damages, and (4) that the underinsured motorist’s insurance coverage is
deficient. See id. at 818; State Farm v. Nickerson, 216 S.W.3d 823, 824 (Tex. 2006); In
re Progressive Cty. Mut. Ins. Co., 439 S.W.3d 422, 426-27 (Tex. App.—Houston [1st
Dist.] 2014, orig. proceeding); In re United Fire Lloyds, 327 S.W.3d 250, 255 (Tex. App.—
San Antonio 2010, orig. proceeding). Accordingly, “a claim for [UIM] benefits is not
presented until the trial court signs a judgment” resolving these issues. Brainard, 216
S.W.3d at 818; see In re Liberty Cty. Mut. Ins. Co., 537 S.W.3d 214, 220 (Tex. App.—
Houston [1st Dist.] 2017, orig. proceeding).
The scope of discovery in UM/UIM cases “differs from other insurance disputes
because, unlike most first-party cases in which the terms of the policy alone dictate the
outcome, uninsured motorist coverage hinges on the liability of the alleged uninsured, at-
fault third-party motorist, under applicable tort law.” In re State Farm Mut. Auto. Ins. Co.,
553 S.W.3d 557, 564–65 (Tex. App.—San Antonio 2018, orig. proceeding) (quoting In re
Allstate Fire & Cas. Ins. Co., No. 12-17-00266-CV, 2017 WL 5167350, at *3 (Tex. App.—
Tyler Nov. 8, 2017, orig. proceeding) (mem. op.)); see In re Liberty Cty. Mut. Ins. Co., 537
S.W.3d at 220. UM/UIM extra-contractual claims can be rendered moot if the insured
does not obtain a judgment against the uninsured or underinsured motorist. In re State
Farm Mut. Auto. Ins. Co., 553 S.W.3d at 564–65; In re Liberty Cty. Mut. Ins. Co., 537
S.W.3d at 220–21; see also In re Allstate Fire & Cas. Ins. Co., 2017 WL 5167350, at *4.
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V. ANALYSIS
Perry contends that the trial court abused its discretion by quashing the deposition
and denying his motion to compel and asserts that he lacks an adequate appellate
remedy to cure this error. Perry argues that this Court and its sister court in San Antonio
have unequivocally held that quashing the deposition of an insurance company’s
corporate representative in a UIM case is a clear abuse of discretion. In support of his
argument, Perry cites In re Luna, 2016 WL 6576879, at *7 and In re Garcia, No. 04‐07‐
00173‐CV, 2007 WL 1481897, at *2 (Tex. App.—San Antonio May 23, 2007, orig.
proceeding) (per curiam) (mem. op.). Perry argues that State Farm “has not cited—and
cannot cite—a UIM case in which the plaintiff was not permitted to depose the insurance
company’s corporate representative.” In contrast, State Farm contends that it is
premature for Perry to depose a State Farm representative because, inter alia, there has
not been a judicial determination regarding Barrientes’s negligence or liability for the
accident, the existence and amount of Perry’s damages, and Barrientes’s status as an
uninsured/underinsured motorist.4
As noted by Perry, this Court has previously addressed this issue in In re Luna,
2016 WL 6576879, at *1–8. There, this Court conditionally granted mandamus relief
directing the trial court to allow the deposition of the insurer’s representative in a UM case.
See id. at *1. There, as in the foregoing cases, a stipulation covered many of the issues
in the case but did not address causation or damages. Id. at *2–3, 6. However, a default
judgment had been entered against the defendant driver. Id. at *1. Based on the
4 State Farm further argued that Perry had not complied with Texas Rule of Appellate Procedure
52 insofar as the record was insufficient and the petition lacked the required certification. By supplemental
petition for writ of mandamus, Perry cured these alleged deficiencies.
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pleadings, State Farm was contesting both the cause of the accident and the amount of
damages sustained by the plaintiff. See id. at *6. The topics encompassed by the
deposition notice corresponded to the defenses and theories raised by State Farm or had
a direct bearing on liability and damage issues, and those matters were not encompassed
by the stipulation. See id. We concluded that information pertaining to liability and State
Farm’s defenses was relevant and discoverable absent a showing of privilege or other
exemption authorized by the rules of civil procedure, and thus conditionally granted
mandamus relief and ordered the trial court to withdraw its order quashing the deposition.
Id. at *7–8.
In so ruling, we relied on an opinion issued by the San Antonio Court of Appeals,
in which that court also conditionally granted mandamus relief and ordered the trial court
to allow the deposition of State Farm’s corporate representative in a case against State
Farm for UM/UIM benefits. See In re Garcia, 2007 WL 1481897, at *2–3. In that case,
the court concluded that the trial court erred in quashing the deposition in its entirety
because doing so unreasonably restricted the plaintiff’s access to relevant information
regarding State Farm’s multiple defenses and compromised her ability to present and
prove her case. Id. As noted by the San Antonio Court of Appeals, the denial of discovery
goes to the heart of a party’s case when the party is prevented from developing essential
elements of its claim or defense. See id.; see also Able Supply Co., 898 S.W.2d at 772;
In re Ten Hagen Excavating, Inc., 435 S.W.3d 859, 863–64 (Tex. App.—Dallas 2014,
orig. proceeding).
In another case, the First Court of Appeals concluded that the plaintiff was not
entitled to depose the insurer’s claims adjuster because the information sought through
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the deposition was neither relevant to the plaintiff’s pending claims nor reasonably
calculated to lead to the discovery of admissible evidence. In re Liberty Cty. Mut. Ins.
Co., 537 S.W.3d at 220. There, the relevant issues were liability for the car accident, the
plaintiff’s UM/UIM status, and the existence and amount of damages. See id. The court
reasoned and held as follows:
In determining whether [the plaintiff] is entitled to discovery on her
declaratory judgment claim prior to a judgment on liability and damages
regarding the underlying accident, we are guided by case law requiring the
severance and abatement of extra-contractual claims. An insured must first
establish that the insurer is liable on the contract before the insured can
recover on extra-contractual causes of action against an insurer for failing
to pay or settle an underinsured motorist insurance claim. Thus, extra-
contractual claims must be severed and abated until the underinsured
motorist breach of contract claim is determined. The rationale for requiring
abatement and severance of these types of claims is that they may be
rendered moot by a determination of underlying liability.
We apply similar reasoning to the case at hand. Because Liberty Mutual’s
contractual obligations do not ripen until after [the plaintiff] has obtained a
judgment against [the other driver] on liability, damages, and coverage, the
requested discovery is irrelevant to any current claims, which are the
building blocks for an eventual determination of the parties’ contractual
rights. An insurer is not required to incur litigation expenses on these issues
because they may be rendered moot by the trial of the underlying accident.
Our decision in In re Progressive is instructive. Progressive concerned,
among other things, a trial court’s refusal to abate discovery in an uninsured
motorist case. 439 S.W.3d at 428. Our court recognized that, “to prevail
on her extra-contractual claims . . . [the plaintiff] must demonstrate that [the
insurer] was contractually obligated to pay her uninsured motorist claim.”
Id. at 427. Because the existence of coverage for the accident was not in
dispute, this “will essentially involve the issues in a typical car wreck: the
comparative negligence of [the plaintiff] and the other driver and [the
plaintiff’s] damages.” Id. We reasoned that requiring the parties to engage
in discovery on matters unrelated to these issues—including the insurer’s
uninsured motorist claims-handling history and its internal policies and
procedures concerning the investigation of uninsured motorist claims—
before the underlying liability was determined would be “manifestly unjust.”
Id. On this basis, we held that the trial court erred in refusing to abate
discovery as to issues beyond the underlying car accident. Id. at 427-28.
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As in Progressive, Liberty Mutual has conceded the existence of
coverage—namely, that [the plaintiff] was an insured under the policy and
that the underlying accident was a covered occurrence under the policy’s
UIM provisions. Accordingly, the remaining issues are those relating to the
underlying accident: (1) [the other driver’s] liability for the car accident, (2)
[the other driver’s] uninsured/underinsured status, and (3) the existence and
amount of [the plaintiff’s] damages. It is undisputed that there has been no
judgment or other judicial determination as to any of these issues. Absent
such judgment, Liberty Mutual owes no contractual or extra-contractual UIM
duties.
The deposition of [the insurer’s claims adjuster] is irrelevant to the issues
currently pending in the case. [The claims adjuster’s] only connection to the
underlying car accident and resulting damages is that she is a claims
adjuster for the insurance company that underwrites [the plaintiff’s] policy
and signed the company’s discovery responses. [The claims adjuster’s]
testimony would not have “any tendency to make a fact more or less
probable” as to any of the relevant issue in the current case. Although [her]
testimony as to Liberty Mutual’s claim-handling activities or its general
policies and procedures is relevant to [the plaintiff’s] extra-contractual
claims, those claims have been properly severed and abated.
Id. at 220–22 (internal citations omitted). The court stated that the discovery at issue
“may become relevant” in the future and discussed both Luna and Garcia as cases which
conditionally granted mandamus relief to allow the deposition of the insurer’s
representative in actions for UM/UIM coverage. See id. at 223. The First Court of
Appeals distinguished Luna and Garcia on grounds that “both cases arose after liability
of the third-party driver had been determined and the coverage dispute had ripened.”
Id.
Most recently, the Fourteenth Court of Appeals quashed the deposition of an
insurer’s corporate representative in a UIM case because the deposition order was “not
limited to the relevant topics of the truck driver’s liability and the existence and amount of
Plaintiff’s damages” and “the information sought through the deposition already has been
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obtained by Plaintiff or may be obtained from other sources with less burden and
expense.” In re Liberty Cty. Mut. Ins. Co., 557 S.W.3d 851, 856 (Tex. App.—Houston
[14th Dist.] 2018, orig. proceeding). There, the plaintiff sought a representative to testify
regarding damages, the “facts supporting the legal theories and defenses” of the insurer,
including offset and credit, and the insurer’s live pleadings. See id. at 854–55. The
plaintiff had sued the insurer directly for UIM benefits and brought causes of action for
breach of contract and violations of the Texas Insurance Code, and the trial court had
severed the plaintiffs’ extra-contractual claims. See id. at 854. The Fourteenth Court of
Appeals conditionally granted relief. See id. at 853.
Here, to recover UIM benefits, Perry is required to show that he has underinsured
motorist coverage, that Barrientes negligently caused the accident that resulted in the
covered damages, the amount of damages that Perry sustained, and that Barrientes’s
insurance coverage is deficient. See Brainard, 216 S.W.3d at 818; In re Liberty Cty. Mut.
Ins. Co., 557 S.W.3d at 856; In re Liberty Cty. Mut. Ins. Co., 537 S.W.3d at 220; In re
Progressive Cty. Mut. Ins. Co., 439 S.W.3d at 427; In re Reynolds, 369 S.W.3d 638, 652
(Tex. App.—Tyler 2012, orig. proceeding). As stated previously, State Farm offered a
limited stipulation regarding some of these issues, but the stipulation does not address
whether Barrientes caused the accident, the amount of Perry’s damages, or whether
Barrientes’s insurance coverage is deficient. See Brainard, 216 S.W.3d at 815; In re
Progressive Cty. Mut. Ins. Co., 439 S.W.3d at 427; In re Reynolds, 369 S.W.3d at 652.
The record before this Court indicates that Perry has settled his claims with Barrientes
but does not indicate that the trial court has signed a judgment resolving these issues.
See Brainard, 216 S.W.3d at 818; In re Liberty Cty. Mut. Ins. Co., 537 S.W.3d at 220.
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Perry has pled facts which, if true, would establish Barrientes was liable for the
accident, is underinsured, and State Farm refused to pay UIM benefits. Perry has alleged
a ripe claim against State Farm. See In re Reynolds, 369 S.W.3d at 649 (holding that a
claim against a UIM insurer was ripe where the plaintiff alleged the other motorist was
liable and underinsured and the UIM Insurer refused to pay); Alvarado v. Okla. Sur. Co.,
281 S.W.3d 38, 40, 42 (Tex. App.—El Paso 2005, no pet.) (same); see also State Farm
Cty. Mut. Ins. Co. of Tex. v. Diaz–Moore, No. 04-15-00766-CV, 2016 WL 6242842, at *2
(Tex. App.—San Antonio Oct. 26, 2016, no pet.) (mem. op.). Further, an insured can sue
a UIM insurer without joining the underinsured motorist and litigate the underinsured
motorist’s liability and underinsured status in that lawsuit. See Brainard, 216 S.W.3d at
818 (“The insured may settle with the tortfeasor, as Brainard did in this case, and then
litigate UIM coverage with the insurer.”); In re Reynolds, 369 S.W.3d at 655 (“[A]n insured
seeking the benefits of his UIM coverage may sue his UIM insurer directly without suing
the UIM; obtain written consent from his UIM insurer and then sue the UIM alone, making
the judgment binding against the insurance company; or sue the UIM without the written
consent of the UIM insurer and relitigate liability and damages.”); see also State Farm
Cty. Mut. Ins. Co. of Tex., 2016 WL 6242842, at *2 (discussing an insured’s right to sue
the UIM insurer without joining the UIM and litigate the UIM’s liability and underinsured
status in that lawsuit); In re Teachers Ins. Co., No. 07–03–0330–CV, 2004 WL 2413311,
at *2 (Tex. App.—Amarillo Oct. 28, 2004, orig. proceeding) (mem. op.) (asserting that the
legal entitlement to recover against a UIM insurer by showing fault on the part of the
uninsured motorist and the extent of the resulting damages “can be established in either
a direct action against the UIM carrier or in a suit against the uninsured motorist”); cf.
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Franco v. Allstate Ins. Co., 505 S.W.2d 789, 791–92 (Tex. 1974) (noting that the ultimate
recovery in an action against a UIM insurer will depend upon proof of damages due to the
tort of the uninsured third party who was not sued); State Farm Mut. Ins. Co. v. Matlock,
462 S.W.2d 277, 278 (Tex. 1970) (holding that the insured has the burden to prove the
uninsured status of the other motorist in a direct action by the insured against his UIM
insurer).
We conclude that this case is more like Luna or Garcia than the cases decided by
the Houston Courts of Appeals insofar as Perry has settled with the underinsured motorist
and is proceeding directly against his insurer in a case that does not involve merely
extracontractual matters. Compare In re Liberty Cty. Mut. Ins. Co., 557 S.W.3d at 856
and In re Liberty Cty. Mut. Ins. Co., 537 S.W.3d at 220, with In re Luna, 2016 WL 6576879,
at *7, and In re Garcia, 2007 WL 1481897, at *2. Significantly, State Farm does not
contend that its representative will lack personal knowledge of the matters at issue here
and does not contend that the deposition will cause undue burden or invasion of personal,
constitutional, or property rights. TEX. R. CIV. P. 192.6; Crown Cent. Petroleum Corp.,
904 S.W.2d at 127; Monsanto Co., 889 S.W.2d at 276. Under these circumstances, we
conclude that the trial court abused its discretion by refusing Perry the right to depose the
opposing party in this lawsuit. See TEX. R. CIV. P. 200.1(a); Crown Cent. Petroleum Corp.,
904 S.W.2d at 127; Mobile Oil Corp., 810 S.W.2d at 323–24; see also In re Luna, 2016
WL 6576879, at *5; In re Doe, 2011 WL 1158765, at *1; In re Garcia, 2007 WL 1481897,
at *2.
In so ruling, however, we conclude that the scope of the deposition as noticed by
Perry is overbroad. The deposition should be limited in scope to matters relevant to the
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subject matter of the pending action. See TEX. R. CIV. P. 192.3(a). At present, those
issues are, essentially, whether Barrientes caused the accident, the amount of Perry’s
damages, and whether Barrientes’s insurance coverage is deficient. See Brainard, 216
S.W.3d at 815; In re Progressive Cty. Mut. Ins. Co., 439 S.W.3d at 427. Further, some
of the topics included in the notice of deposition include matters that are clearly obtainable
from some other source that is more convenient, less burdensome, or less expensive.
See TEX. R. CIV. P. 192.4(a) (providing that discovery should be limited when “the
discovery sought is unreasonably cumulative or duplicative, or is obtainable from some
other source that is more convenient, less burdensome, or less expensive”). For
instance, the notice of deposition includes topics regarding the nature and causation of
Perry’s alleged injuries sustained in the collision and the damage sustained by all vehicles
involved in the collision. Perry has independent and superior access to his own records
and deposing State Farm as to their contents would be unreasonable and unduly
burdensome. See id.; see also In re Liberty Cty. Mut. Ins. Co., 537 S.W.3d at 222–23; In
re Arras, 24 S.W.3d 862, 864 (Tex. App.—El Paso 2000, orig. proceeding).
We have concluded that the trial court abused its discretion in quashing the
deposition in its entirety, but have further concluded that the deposition should be
narrowly focused in scope to matters relevant to State Farm’s defenses in the pending
lawsuit. Accordingly, we sustain in part and overrule in part Perry’s first issue. We further
determine that Perry lacks an adequate remedy by appeal to cure the trial court’s error in
quashing the deposition because his ability to present a viable claim or defense will be
impaired by the trial court’s error. See, e.g., Able Supply Co., 898 S.W.2d at 771–72; In
re Hinterlong, 109 S.W.3d at 633. We sustain Perry’s second issue.
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VI. CONCLUSION
The Court, having examined and fully considered the petition for writ of mandamus,
State Farm’s response, Perry’s reply, and the applicable law, is of the opinion that Perry
has shown himself entitled to some of the relief sought. Accordingly, we conditionally
grant in part and deny in part, the petition for writ of mandamus. We direct the trial court
to (1) withdraw its December 3, 2018 order granting State Farm’s motion to quash and
denying Perry’s motion to compel and (2) grant Perry’s motion to compel the deposition.
We are confident that the trial court will limit the deposition’s scope in accordance with
our opinion, and that any further discovery orders in this case will be tailored to include
only matters relevant to this case. The writ of mandamus shall issue only if the trial court
fails to act promptly in accordance with this opinion.
DORI CONTRERAS
Chief Justice
Delivered and filed the
18th day of April, 2019.
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