Liberty Mutual Insurance Company v. Rickie Sims

ACCEPTED
12-14-00123-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
12/27/2014 9:39:47 AM
CATHY LUSK
CLERK
No. 12-14-00123-CV
FILED IN
12th COURT OF APPEALS
In the TYLER, TEXAS
12/27/2014 9:39:47 AM
Twelfth Court of Appeals CATHY S. LUSK
Clerk
Liberty Mutual Insurance Company,
Appellant,
v.
Rickie Sims,
Appellee.
BRIEF OF APPELLEE RICKIE SIMS
Don Wheeler Darrin Walker
State Bar No: 21256200 State Bar. No. 00788600
LAW OFFICE OF DON WHEELER LAW OFFICE OF DARRIN WALKER
101 Tenaha Street 6134 Riverchase Glen Dr.
Center, Texas 75935 Kingwood, Texas 77345
Telephone No.: (936) 598-2925 Telephone No.: (281) 358-2295
Facsimile No.: (936) 598-7024 Facsimile No.: (281) 358-5602
velawson@sbcglobal.net darrinwalker@embarqmail.com
ORAL ARGUMENT REQUESTED
TABLE OF CONTENTS
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii
ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix
STATEMENT OF FACTS AND PROCEDURAL HISTORY. . . . . . . . . . . . . . . . 1
SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
I. AS A MATTER OF LAW, THE UIM POLICY LIMIT IN THE POLICY
WAS $1 MILLION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
A. Sims offered conclusive evidence that the UIM policy
limit was $1 million.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
B. Liberty Mutual offered no admissible evidence that the
Policy was modified to reduce the UIM policy limit to
$250,000... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
1. Liberty Mutual offered no evidence that Liberty
Mutual and Chesapeake ever agreed to modify
the policy limit.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2. Liberty Mutual offered no evidence that it gave
consideration for any reduction of the policy
limit.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
II. THE TRIAL COURT PROPERLY INCLUDED THE FACTUAL DISPUTE
OVER WHETHER THE POLICY LIMIT HAD BEEN REDUCED IN THE
ISSUES TRIED TO THE JURY.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
-i-
III. EVIDENCE OF THE POLICY LIMIT WAS RELEVANT AND
ADMISSIBLE TO PROVE AN ELEMENT OF SIMS’S CLAIM ... . . . . . . . . . . . . . . . 33
IV. THE TRIAL COURT PROPERLY ADMITTED SIMS’S EVIDENCE
AND EXCLUDED LIBERTY MUTUAL’S.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
A. Standard of Review.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
B. The trial court properly admitted Plaintiff’s Exhibit
13 (the Policy).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
1. Whether the Policy was modified to reduce
the policy limit was a fact issue to be resolved
in this case.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
2. Sims’s pleading supported the admission of
the Policy.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
3. The trial court did not abuse its discretion in
overruling Liberty Mutual’s objection under
Rule 403.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
C. The trial court properly admitted Liberty Mutual’s
responses to Sims’s Requests for Admission.. . . . . . . . . . . . . . . . . . 48
D. The trial court properly excluded Defendant’s
Exhibit 12... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
E. The trial court properly excluded Liberty Mutual’s
supplemental discovery responses... . . . . . . . . . . . . . . . . . . . . . . . . . 53
1. The court properly excluded Liberty Mutual’s
purported “amendment” to its response to
Sims’s Request for Admission No. 6.. . . . . . . . . . . . . . . . . . . . 53
2. The court properly excluded Liberty Mutual’s
supplemental discovery responses.. . . . . . . . . . . . . . . . . . . . . 56
-ii-
V. THE ADMISSION OF EVIDENCE OF INSURANCE IN THIS CASE
DID NOT VIOLATE TEXAS RULE OF EVIDENCE 411 OR HARM
LIBERTY MUTUAL... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
CONCLUSION AND PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
CERTIFICATE OF COMPLIANCE WITH TEXAS RULE OF
APPELLATE PROCEDURE 9.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
-iii-
INDEX OF AUTHORITIES
Cases:
Advantage Physical Therapy, Inc. v. Cruse, 165 S.W.3d 21
(Tex. App.—Houston [14th Dist.] 2005, no pet.). . . . . . . . . . . . . . . . . . 22, 23
Benchmark Ins. Co. v. Sullivan, No. 12-07-00223-CV,
2009 WL 1153385 (Tex. App.—Tyler April 30, 2009,
no pet.) (mem. op.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Brandon v. Schroeder, 167 S.W.2d 599 (Tex. Civ. App.—
Galveston 1942), rev’d on other grounds,
141 Tex. 319, 172 S.W.2d 488 (1943). . . . . . . . . . . . . . . . . . . . . . . . . . 26-27
Cooke v. Dykstra, 800 S.W.2d 556 (Tex. App.—Houston
[14th Dist.] 1990), opinion modified on rehearing,
1990 WL 310627 (Tex. App.—Houston [14th Dist.]
Nov. 29, 1990, no writ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48-49
First Nat’l Bank of Louisville v. Lustig, 150 F.R.D. 548
(E.D. La. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50, 51
Goss v. Kellogg Brown & Root Inc., 232 S.W.3d 816
(Tex. App.—Houston [14th Dist.] 2007, pet. denied). . . . . . . . . . . . . . . 42-43
Hammer v. State, 296 S.W.3d 555 (Tex. Crim. App. 2009).. . . . . . . . . . . . . . . . . 46
Hathaway v. General Mills, Inc.,
711 S.W.2d 227 (Tex. 1986).. . . . . . . . . . . 22, 28, 29, 31, 34, 36, 39, 44, 51
Henson v. Southern Farm Bureau Cas. Ins. Co.,
17 S.W.3d 652 (Tex. 2000).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
In re Reynolds, 369 S.W.3d 638 (Tex. App.—Tyler 2012,
orig. proceeding). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 33, 40, 44, 47, 60
-iv-
Kaufhold v. McIver, 682 S.W.2d 660 (Tex. App.—Houston
[1st Dist.]1984, writ ref’d n.r.e.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 40
Leuchtenmacher v. Farm Bureau Mut. Ins. Co.,
461 N.W.2d 291 (Iowa 1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34, 44
Lively v. Blackwell, 51 S.W.3d 637 (Tex. App.—Tyler 2001,
pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Lomax v. State, 16 S.W.3d 448 (Tex. App.—Waco 2000,
no pet.).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49, 56
Marshall v. Vise, 767 S.W.2d 699 (Tex. 1989). . . . . . . . . . . . 21, 27, 51, 55, 58, 59
Mid-Century Ins. Co. Of Texas v. McLain,
No. 11-08-00097-CV, 2010 WL 851407
(Tex. App.—Eastland March 11, 2010,
no pet.) (mem. op.). . . . . . . . . . . . . . . . . . . . . . . 35, 37, 38-39, 44, 47, 60-61
Morgan v. Anthony 27 S.W.3d 928 (Tex. 2000).. . . . . . . . . . . . . . . . . . . . . . . . . . 58
Moss v. State, 75 S.W.3d 132 (Tex. App.—San Antonio
2002, pet. ref’d).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45-46
Naik v. Naik, 438 S.W.3d 166 (Tex. App.—Dallas 2014,
no pet.).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Natural Gas Pipeline Co. of Am. v. Pool, 30 S.W.3d 618
(Tex. App.—Amarillo 2000), rev’d on other grounds,
124 S.W.3d 188 (Tex. 2003).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Parkway Hosp., Inc. v. Lee, 946 S.W.2d 580 (Tex. App.—
Houston [14th Dist.] 1997, writ denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Pittsburgh Corning Corp. v. Walters, 1 S.W.3d 759
(Tex. App.—Corpus Christi 1999, pet. denied). . . . . . . . . . . . . . . . . . . . . . 46
-v-
PPC Transp. v. Metcalf, 254 S.W.3d 636 (Tex. App.—
Tyler 2008, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42, 43, 47
Red Ball Motor Freight, Inc. v. Dean, 549 S.W.2d 41
(Tex. Civ. App.—Tyler 1977, writ dism’d w.o.j.). . . . . . . . . . . . . . . . . . . . 48
Roark v. Stallworth Oil and Gas, Inc., 813 S.W.2d 492
(Tex. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Sanders v. State, 255 S.W.3d 754 (Tex. App.—Fort Worth
2008, pet. ref’d).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Stowers v. Harper, 376 S.W.2d 34 (Tex. Civ. App.—Tyler
1964, writ ref’d n.r.e.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23, 50
Travelers Ins. Co. v. Creyke, 446 S.W.2d 954 (Tex. Civ.
App.—Houston [14th Dist.] 1969, no writ). . . . . . . . . . . . . . . . . . . . . . . 51-52
United States v. Dennis, 625 F.2d 782 (8th Cir. 1980). . . . . . . . . . . . . . . . . . . . . . 47
United States v. Pace, 10 F.3d 1106 (5th Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . . 46
United States v. Terry, 702 F.2d 299 (2nd Cir. 1983). . . . . . . . . . . . . . . . . . . . 50, 51
United States Football League v. National Football League,
842 F.2d 1335 (2nd Cir. 1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Wal-Mart Stores, Inc. v. Cordova, 856 S.W.2d 768
(Tex. App.—El Paso 1993, writ denied). . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Wal-Mart Stores, Inc. v. Deggs, 968 S.W.2d 354 (Tex. 1998).. . . . . . . . . . . . . . . 49
World Wide Ass’n of Specialty Programs v. Pure, Inc.,
450 F.3d 1132 (10th Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46-47
Zodiac Corp. v. General Elec. Credit Corp., 566 S.W.2d 341
(Tex. Civ. App.—Tyler 1978, no writ).. . . . . . . . . . . . . . . . . . . . . . . . . 24, 50
-vi-
Court Rules:
TEX. R. APP. P. 33.1.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48, 60
TEX. R. APP. P. 38.1.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
TEX. R. CIV. P. 193.7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
TEX. R. CIV. P. 198.3. . . . . . . . . . . . . . . . . . . . . 11, 20-21, 27, 31, 51, 54, 55, 58, 59
TEX. R. CIV. P. 270. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 39
TEX. R. EVID. 103. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48, 54, 60
TEX. R. EVID. 106. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49, 51, 55
TEX. R. EVID. 107. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49-50, 51
TEX. R. EVID. 403. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46, 61
TEX. R. EVID. 411. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59, 60, 61
TEX. R. EVID. 801. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 58, 59
TEX. R. EVID. 802. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 58, 59
Secondary Authorities:
J. WEINSTEIN AND M. BERGER, WEINSTEIN’S EVIDENCE
(1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
36 TEX. JUR. 3D Evidence § 360 (Westlaw 2014).. . . . . . . . . . . . . . . . . . . . . . . . . 24
36 TEX. JUR. 3D Evidence § 362 (Westlaw 2014).. . . . . . . . . . . . . . . . . . . . . . 24, 51
-vii-
STATEMENT OF THE CASE
Nature of the Case: Sims sued Liberty Mutual to recover underinsured
motorist benefits under an automobile insurance
policy Liberty Mutual issued to Sims’s employer,
Chesapeake Energy Corporation.
Course of Proceedings: Sims sued the underinsured motorist (Aryka
Knous) for negligence and sued Liberty Mutual
and Farmers Casualty Insurance Company (his
personal auto liability insurer) to collect UIM
benefits. [1 CR 11-16] Sims settled with Knous
before trial, and proceeded to trial against Liberty
Mutual and Farmers. [2 RR 24-25] Although
Liberty Mutual judicially admitted that its policy
limit was $1 million [6 CR 950] and never
requested leave to withdraw that admission, at trial
it took the position that the policy had been
modified to reduce the policy limit to $250,000.
[2 RR 23-24; 3 RR 7] The trial court submitted
that factual dispute to the jury. The jury found
that Knous’s negligence proximately caused Sims
to suffer over $2.5 million in damages, and that
the policy limit was $1 million. [6 CR 1005-1009]
Trial Court’s Disposition: The trial court entered judgment against Liberty
Mutual for $1 million. [10 CR 1680-1683]
-viii-
ISSUES PRESENTED
1. Liberty Mutual judicially admitted that its policy limit was $1 million, yet
also claimed the policy had been modified to reduce the policy limit to
$250,000. Sims bore the burden of proving how much UIM coverage he
had, and Liberty Mutual bore the burden of proving that the policy had been
modified. So the trial court properly admitted evidence of the policy limit
and submitted the issue to the jury. Because Sims conclusively established
that the policy limit was $1 million, and Liberty Mutual offered no
admissible evidence that the policy had been modified to reduce the policy
limit, the court properly entered judgment for $1 million in conformity with
the jury’s verdict.
2. Whether the policy had been modified to reduce the policy limit was a fact
issue that had to be resolved for the court to enter a judgment on Sims’s
UIM claim. Accordingly, the trial court properly admitted evidence of the
policy limit, submitted the issue to the jury, and entered judgment for $1
million in conformity with the jury’s verdict.
3. Sims offered admissible (indeed conclusive) evidence that the policy limit
was $1 million. Liberty Mutual failed to offer any admissible evidence that
the policy had been modified to reduce the policy limit, and also failed to
seek leave to withdraw its judicial admission that the policy limit was $1
million. So the trial court properly excluded Liberty Mutual’s inadmissible
“evidence,” which would have contradicted its judicial admission.
4. Rule 411 prohibits the admission of evidence that a party is insured against
liability for the purpose of proving that the party acted wrongfully, but not
for any other purpose. There was no issue in this case regarding whether
Chesapeake acted wrongfully, and the evidence of Chesapeake’s insurance
policy was offered to prove an element of Sims’s contract claim under the
policy, not to prove that Chesapeake acted wrongfully. So, the admission of
the policy didn’t violate Rule 411.
-ix-
STATEMENT OF FACTS AND PROCEDURAL HISTORY
On March 25, 2012, Ricky Sims was injured in a motor vehicle accident in
Oklahoma. [3 RR 61-62, 67; 6 CR 949-950] At the time of the accident, Sims
was operating a vehicle owned by his employer, Nomac/Chesapeake Energy
Corporation (hereinafter “Chesapeake”) with Chesapeake’s permission in the
course and scope of his employment. [3 RR 66-70, 75; 6 CR 950; DX-2] The
driver of the vehicle that struck Sims, Aryka Knous, did not have enough
insurance to compensate Sims for the severe injuries he suffered. [2 RR 24-25;
PX 4a, 4b, 7a, 7b (5 RR, Part II, pp. 582-585, 627, 631-632)] So on January 30,
2013, Sims sued Liberty Mutual to collect underinsured motorist benefits under an
automobile liability insurance policy (“the Policy”) issued by Liberty Mutual to
Chesapeake. [PX-13; 3 RR 61-62; 1 CR 11-16; 6 CR 935]
On May 17, 2013, in response to Sims’s Request for Disclosure, Liberty
Mutual produced a copy of the Policy’s Declarations Page that stated that the UIM
policy limits were $1 million. [6 CR 890-893, 896-900]
On September 11, 2013, in response to Request for Production No. 1 in
Sims’s Second Set of Requests for Production (which requested that Liberty
Mutual produce “[a] true and correct copy of the declaration sheet(s) and policy(s)
of uninsured and/or underinsured motorist insurance made the basis of this suit”),
1
Liberty Mutual stated, “Defendant refers Plaintiff to the insurance policy DEFN
00002-00237 produced via email to Peggy Watlington on August 13, 2013.” [8
CR 1415-1418] That policy stated that the UIM policy limit was $1 million. [PX-
13, Bates No. DEFN 00010;1 8 CR 1430]
Also on September 11, 2013, in response to Sims’s Request for Admission
No. 6 (which requested that Liberty Mutual “admit or deny that said insurance
policy issued by LIBERTY MUTUAL INSURANCE COMPANY to
CHESEAPEAKE ENERGY covering RICKIE SIMS and the 2009 Chevrolet 1500
truck on the day of the accident of March 25, 2012 contained uninsured/
underinsured motorist coverage of one million dollars per accident”), Liberty
Mutual stated, “Based upon the information known to date, Defendant admits the
Uninsured/Underinsured Policy Limits in the Commercial Automobile Policy
issued to Chesapeake Energy Corporation had limits of $1M.” [6 CR 950]
On October 15, 2013, Liberty Mutual served upon Sims its “First
Supplemental Responses to Plaintiff’s Discovery Requests.” In this document,
Liberty Mutual “supplemented” its response to Sims’s Interrogatory No. 10,
1
The copy of Plaintiff’s Exhibit 13 that is contained in 5 RR, Part II is out of
order and incomplete, but all the significant pages are there. The pages of PX-13
in the Reporter’s Record are in the following order: DEFN 00002, DEFN 00065,
DEFN 00110-178, DEFN 66-109, DEFN 00003-00064. A complete copy of PX-
13 is located at 8 CR 1422 — 10 CR 1679.
2
stating in relevant part, “Defendant retains UM/UIM coverage limits of $250,000.
Defendant refers Plaintiff to the Policy attached hereto as DEFN 00239-00252. . . .
Any previous information given to this Interrogatory is no longer applicable.” [6
CR 901-905] In supplemental responses to Interrogatory No. 11 and Request for
Production No. 9, which sought information about and production of additional
UIM coverage that might cover Sims’s accident, Liberty Mutual referred Sims “to
DEFN 00002-00237, the Liberty Mutual Commercial Auto policy previously
provided to Plaintiff,” and “the Policy attached hereto as DEFN 00238-00252,
regarding amendments to the policy regarding UM/UIM policy limits.” [6 CR
904-905] DEFN 00238-00252 consisted of 14 pages, two of which purported to
reflect an endorsement to reduce the policy limit of Chesapeake’s Texas UIM
coverage to $250,000. [6 CR 907-908] However, Liberty Mutual did not
supplement its response to Sims’s Request for Production No. 1 in Sims’s Second
Set of Requests for Production, which had identified the Policy originally
produced (which showed a UIM policy limit of $1 million) as the Policy. [6 CR
901-905]
Sims was suspicious of this complete reversal of Liberty Mutual’s position
regarding its policy limit for several reasons:
3
1. Liberty Mutual had judicially admitted that the policy limit was
$1 million and had produced the documents verifying that
policy limit. [8 CR 1415-1418, 1430] How could the
insurance company (and its insured, with whom it could easily
communicate) not know its own policy limit?
2. The so-called “endorsements” produced on October 15, 2013,
contained no signature indicating that Chesapeake had ever
agreed to the alleged reduction of its Texas UIM coverage. [6
CR 906-919]
3. The so-called endorsements did include a signed selection of
New Mexico UIM policy limits, dated July 29, 2011. [6 CR
913-914] But the Policy that Liberty Mutual had originally
produced stated that it was issued on August 8, 2011, and that
the Texas UIM policy limit in that Policy was $1 million. [8
CR 4123, 1430] How could an endorsement predate the
issuance of the policy it allegedly amended?
4. Both the Policy Liberty Mutual had originally produced and the
“endorsements” it subsequently produced had a series of
sequential page numbers in the top right corner of each page.
The original Policy included pages 228201100160400002 —
228201100160400240. [8 CR 1422 — 10 CR 1679] The
alleged “endorsements” included pages 339201100022200002
— 339201100022200015. [6 CR 906-919] It thus appeared
that these two documents were not stored anywhere close to
one another in Liberty Mutual’s files. Why would the Policy
and the endorsements that allegedly amended it not be stored
together?
5. The Policy stated that Liberty Mutual could not reduce the
insurance provided by the Policy unless Liberty Mutual
afforded Chesapeake 90 days’ written notice of the reduction [9
CR 1494], and no such notice had ever been produced.
4
6. Although Liberty Mutual “supplemented” its interrogatory
response and responses to some of Sims’s requests for
production, it did not move for leave to withdraw its admission
that the policy limit was $1 million. [6 CR 901-905]
In light of these suspicious circumstances, Sims refused to simply take Liberty
Mutual’s word for it that the policy limit had been reduced to $250,000, and
prepared to prove the $1 million policy limit at trial. [3 RR 9-11]
On January 8, 2014, Sims filed a motion for leave to file his Third Amended
Petition, which added an extra-contractual cause of action against Liberty Mutual
under the Texas Insurance Code. [5 CR 820-21] This claim alleged that Liberty
Mutual had misrepresented that the policy limit was $250,000, when in fact it was
$1 million. [5 CR 829] Sims asked the court to permit the amendment, and then
immediately sever the Insurance Code cause of action into a separate lawsuit and
abate the severed case until after the impending trial of his cause of action to
recover UIM benefits. Sims requested this relief so that his Insurance Code cause
of action (i) would be preserved and not subject to a plea of res judicata based on
the final judgment in the UIM case, but (ii) would not delay the impending trial.
[5 CR 820-821, 830] The court granted Sims’s motion, permitted the filing of
Sims’s Third Amended Petition, and severed the Insurance Code cause of action
5
into a new cause number. [5 CR 855] Liberty Mutual removed the severed
Insurance Code case to federal court on January 16, 2014. [6 CR 962]
On January 9, 2014, Liberty Mutual served upon Sims “Defendant’s First
Amended Responses and Objections to Plaintiff’s Requests for Admissions.” In
this document, Liberty Mutual unilaterally and without seeking the court’s leave
purported to “amend” its response to Sims’s Request for Admission No. 6.
Whereas Liberty Mutual’s September 11, 2013 response had admitted that the
policy limit was $1 million, its January 9, 2014 “amendment” stated, “Denied.
Based upon information and Policy Amendments previously provided to Plaintiff,
the policy limits related to the above-referenced insurance policy total $250,000.”
[4 RR 135-136] Liberty Mutual never asked the court to permit it to withdraw or
amend its original admission that the policy limit was $1 million.
At the pretrial hearing immediately prior to jury selection, Liberty Mutual
offered “for the Court’s record” a notebook containing certain discovery
responses, correspondence, and a document Liberty mutual contended was the
Policy and endorsements to the Policy. Liberty Mutual explicitly stated, “These
will not be admitted into evidence.” [2 RR 23] Given that the notebook was not
offered as evidence, but merely “for the Court’s record,” Sims did not object to the
notebook being made part of “the Court’s record.” [2 RR 23-24] The court
6
received the notebook as “Court Exhibit 1” (cited herein as “CX-1”) for the
limited purpose for which it was tendered. [2 RR 24]
Thereafter, Liberty Mutual “object[ed] to the trial going forward” because
“[i]t’s Liberty’s position that it has $250,000 UM coverage, that the total amount
of coverage that it has, has been tendered and, therefore, proceeding with this trial
and incurring the legal expenses and fees associated with this trial should not
proceed.” [2 RR 26] Sims responded that “it’s been the Plaintiff’s position that
there’s a million dollars in insurance coverage, and that’s still our position at this
trial.” [2 RR 26-27] The trial court did not rule on Liberty Mutual’s objection.
After jury selection and prior to the commencement of the evidence, Liberty
Mutual “renew[ed] [its] objection to the case proceeding forward” on the ground
that it had tendered $250,000, which it claimed was its policy limit, and therefore
“this is unnecessary cost being incurred by Liberty Mutual to try this case.” [3 RR
7] Liberty Mutual continued:
. . . [T]here’s an issue as to the amount of policy limits. Liberty
contends it’s $250,000; Plaintiffs contend it’s $1 million. That is not
part of this lawsuit. They have filed a separate claim which the Court
severed, which is now in federal court, dealing with all the extra
contractual issues. It is in that lawsuit that the issue of policy limits
will be decided. In this lawsuit, the only relevant issues are liability
and damages. So we would certainly object to any mention
whatsoever of policy limits. We think that would be a reversible
error. . . . [P]olicy limits outside of the issue of control have been held
7
by Texas courts to be inadmissible as extremely prejudicial because
Texas law shows that jurors are inherently more likely to rule, not
only in favor of Plaintiff, but give higher verdicts. . . .
[3 RR 8-9]
Sims responded:
. . . [I]n re Reynolds out of Tyler says that we have to prove the
insurance policy was in effect. Had to prove how much insurance
coverage there is. And the way we normally do that is by request for
admission, and there’s never a dispute as to the amount of coverage.
But in this particular case it is, and that’s our burden of proof.
And we’re ready to go forward to prove it’s a million dollars, and we
say it’s a part of this case that we have to prove. This is a suit on an
insurance contract, and that is an insurance contract that includes the
contract itself, including all these terms, including the amount of
insurance that’s available.
[3 RR 9]
Liberty Mutual replied that the issue of the policy limit was to be litigated
solely in the severed bad-faith case [3 RR 9], and counsel for Farmers Casualty
Insurance Company (Sims’s personal UIM carrier) argued:
. . . it is inherently prejudicial to the insurance companies to have the
amount of the limits admitted in front of the jury. I’ve had that
excluded on many, many occasions in trying first party insurance
cases because it influences the jury to award damages that exceed or
approach or are in the neighborhood of the insurance policy limits
when that is brought before them.
[3 RR 10]
Thereafter, the following exchange occurred:
8
SIMS’S COUNSEL: But, Judge, in all those cases, there was
stipulation as to the amount of the policy limits. So if Liberty Mutual
will stipulate that the insurance policy, in this case [is] a million
dollars, th[en] we’ll agree not to mention it.
LIBERTY MUTUAL’S COUNSEL: Liberty Mutual will stipulate
that the policy limits were $250,000.
SIMS’S COUNSEL: So there’s a dispute.
THE COURT: Well, there’s an issue there.
LIBERTY MUTUAL’S COUNSEL: Right, but not for this Court,
not for this jury to decide. It’s for the Court, and that’s actually a
question of law. Because its interpretation of a contract, which is a
question of law, which is again being decided by the federal court in a
case which has been severed and removed from this Court, so that is
an issue of law because it deals directly with interpretation of
contracts. That is not an issue of fact for a jury to decide.
SIMS’S COUNSEL: Judge, first of all, this is a case against Liberty
Mutual under the insurance contract. If there’s a dispute as to what
the policy limits are, how are you going to draft a judgment? Are you
going to give a judgment based on what they say the policy limits are,
or based on what we say the policy limits are? And this is not a
question of interpreting [the] policy, this is a question of whether this
alleged endorsement was ever adopted by the parties. That’s a fact
question.
[3 RR 10-11]
Liberty Mutual then argued that the only issues the jury should decide in the
UIM case were whether the underinsured motorist was at fault and the amount of
Sims’s damages, because “the judgment should be whatever the jury comes up
9
with regardless of policy amounts.” [3 RR 11] Liberty Mutual theorized that,
once the judgment in the full amount of Sims’s damages was entered in this case,
“then the policy will kick in, and then the question is how much does the policy
pay? What are the limits? And that is a question that would be determined in the
federal court in the severed cause of action.” [3 RR 12] Sims replied that there
had to be a resolution of the factual dispute regarding the policy limit before the
trial court could fashion a judgment in the UIM case, and the trial court overruled
Liberty Mutual’s objection. [3 RR 12-13]
At the opening of the evidence, Sims offered the Policy (DEFN 00002-
00237) into evidence as Plaintiff’s Exhibit 13. [3 RR 55; PX-13] Liberty Mutual
objected as follows:
Your Honor, Plaintiff's Exhibit No. 13 is objected to by Defendant
Liberty for the various reasons we’ve already mentioned.
First and foremost, it’s not in their pleadings as a dispute as to
the policy amounts. There’s a separate lawsuit related to this, which
has been filed in federal court severed from this case, and it’s now in
federal court. This has nothing to do with the issues to be decided in
this case. It’s [unduly] prejudicial, and we think it’s reversible error
if this is admitted. Defendant Liberty moves for mistrial.
[3 RR 56] The trial court admitted the Policy as Plaintiff’s Exhibit 13. [3 RR 56-
57]
10
Sims’s counsel then read to the jury Liberty Mutual’s September 11, 2013
responses to Sims’s Requests for Admission Nos. 1-6 (including the response to
Request for Admission No. 6 that admitted that the UIM policy limit was $1
million). [3 RR 60-62] Liberty Mutual did not object to this evidence, but
requested under the rule of optional completeness to read its unauthorized
“amendments” to its responses to the Requests for Admission, which had been
served without leave of court on January 9, 2014. [3 RR 58-59] Sims opposed
this request on the ground that responses to requests for admission are conclusive
unless and until the admitting party seeks and obtains the court’s leave to
withdraw or amend them based on a showing of good cause, see TEX. R. CIV. P.
198.3, which Liberty Mutual had never done. [3 RR 59] Incredibly, even then,
Liberty Mutual did not seek the court’s leave to withdraw or amend its
admissions. Thus, the trial court overruled Liberty Mutual’s request to read its
unauthorized “amended” responses to Sims’s Requests for Admission. [3 RR 60]
Sims called five witnesses in his case in chief: (i) Sims [3 RR 63-124]; (ii)
physical therapist Richard Bunch, Ph.D., who had performed a functional capacity
evaluation of Sims, [3 RR 125-170]; (iii) Certified Life Care Planner and
Registered Nurse Dan Bagwell, who prepared a life-care cost analysis regarding
Sims, [4 RR 7-87]; (iv) neurologist and Certified Life Care Planner David Altman,
11
M.D., who examined Sims and jointly prepared the life-care cost analysis with
Bagwell, [4 RR 87-110]; and (v) economist Dr. Charles Hawkins, who testified
regarding the present value of Sims’s future damages. [4 RR 111-131]
During Sims’s case in chief, Liberty Mutual offered the so-called
endorsements to the Policy (DEFN 000238-000252) into evidence as Defendant’s
Exhibit 12.2 [4 RR 71-72] Sims objected that the exhibit was unauthenticated and
that there was no admissible evidence that the so-called endorsement had ever
been properly adopted by the parties. [4 RR 72-73] The court sustained the
objection and excluded Liberty Mutual’s Exhibit 12. [4 RR 75] Immediately after
Sims rested, Liberty Mutual rested without calling any witnesses. [4 RR 141] It
thus offered no testimonial evidence that the so-called endorsement was ever
effectuated. Indeed, no evidence that would have supported a finding that the
policy limit was $250,000 was admitted at trial.
The court’s charge submitted four questions to the jury. In response to these
four questions, the jury unanimously found that: (i) “the policy limit of the
underinsured motorist coverage in the Liberty Mutual Policy at the time of the
Collision” was $1 million; (ii) the negligence of Aryka Knous was the proximate
cause of the Collision, (iii) no negligence on the part of Sims was a proximate
2
DX-12 is located at 5 RR, Part II, pp. 873-886.
12
cause of the collision, and (iv) Sims sustained over $2.5 million in damages as a
result of the Collision. [6 CR 1005-1011] The verdict was received without
objection on January 23, 2013. [4 RR 192]
On February 7, 2013, Sims moved for a judgment awarding him $1 million
in UIM benefits against Liberty Mutual. [6 CR 1019-1034] On February 13,
2013, Liberty Mutual filed “Defendant Liberty Mutual Insurance Company’s
Motion to Disregard Jury Answers and for Judgment Notwithstanding the Verdict
and Objections to Plaintiff’s Motion for Judgment on the Verdict” (hereinafter
referred to as Liberty Mutual’s “Motion to Disregard”). [7 CR 1048-1058]
Attached as Exhibit A to Liberty Mutual’s Motion to Disregard was an unsworn
“Policy Certification Form” purportedly signed by Patricia Faunce, Manager of
Central Processing Operations, Commercial Insurance Shared Services, and a copy
of what Faunce’s certification stated was “a true copy of the original policy
[Number AS1-6910-522861-031] issued” to Chesapeake. [7 CR 1059—8 CR
1381] Notably, this document was different from the document Liberty Mutual
had offered at trial as the true and correct copy of the policy. While the first 237
pages of the two documents were the same (and indeed, were the same as
Plaintiff’s Exhibit 13 [8 CR 1422 — 10 CR 1679]3), after that they differed.
3
See footnote 1, above.
13
[Compare CX-1 (located in 5 RR, Part I), Bates Nos. DEFN 00239-00252 with 8
CR 1307-1381] The document attached as an exhibit to Liberty Mutual’s Motion
to Disregard contained many more pages than the one Liberty Mutual offered at
trial. [Compare CX-1 (containing 252 pages) with 7 CR 1060—8 CR 1381
(containing 311 pages).4
Sims filed a response in opposition to Liberty Mutual’s Motion to
Disregard, in which he noted that Liberty Mutual’s responses to Plaintiff’s
Requests for Admission conclusively established that the policy limit was $1
million and that Liberty Mutual had offered no competent evidence at trial to
prove that the alleged endorsement reducing the policy limit to $250,000 was ever
effectuated. [8 CR 1393] Sims objected to Exhibits A and B5 to Liberty Mutual’s
Motion to Disregard on the grounds that (i) the evidence was closed, (ii) any
evidence contrary to Liberty Mutual’s judicial admissions was inadmissible, and
(iii) the document Liberty Mutual now alleged to be the policy was not
4
Notably, Liberty Mutual’s Brief cites exclusively to the document first
submitted after the verdict was rendered and received in support of Liberty
Mutual’s Motion to Disregard (which it refers to as “the certified Chesapeake
Policy,” see Liberty Mutual’s Brief, p. 4), rather than the different document that it
offered at trial (CX-1).
5
Exhibit B was simply excerpts from Exhibit A. [8 CR 1382-1388]
14
authenticated by competent evidence, since Faunce’s certification6 was hearsay.
[8 CR 1393]
On February 21, 2014, Judge Mitchell signed a Final Judgment awarding
Sims $1 million in underinsured motorist benefits from Liberty Mutual. [10 CR
1680-1683] In its Final Judgment, the court stated:
. . . The following facts were conclusively established through
stipulations of the parties, Liberty Mutual’s responses to Plaintiff’s
requests for admission that were on file with the District Clerk, and
the evidence admitted at trial:
. . .
4. The policy limit on the underinsured motorist coverage in the
Liberty Mutual Policy was $1,000,000.
. . .
The jury found that:
1. The underinsured motorist policy limit in the Liberty Mutual
Policy was $1 million.
2. The negligence of Knous was a proximate cause of the
collision, and no negligence of Sims was a proximate cause of the
collision; and
3. As a result of the collision, Plaintiff Rickie Sims suffered past
damages in the amount of $605,885.47 and future damages in the
amount of $1,935,000.
6
Sims erroneously referred to the unsworn certification as an “affidavit” in
his response. [8 CR 1393]
15
. . .
Pursuant to the Liberty Mutual Policy, Liberty Mutual is liable
to Plaintiff for the damages that Plaintiff is legally entitled to recover
from Knous ($2,563,876.47, plus $83.00 per day after February 21,
2014 until the date this Judgment is signed) less the amount of
Knous’s automobile liability insurance policy limits ($100,000), up to
the $1,000,000 policy limit of the underinsured motorist coverage in
the Liberty Mutual Policy.
. . .
IT IS THEREFORE ORDERED AND ADJUDGED AS
FOLLOWS:
That Plaintiff Rickie Sims recover from Defendant Liberty Mutual
Insurance Company the amount of $1,000,000 in underinsured
motorist benefits. . . .
[10 CR 1680-1683]
16
SUMMARY OF THE ARGUMENT
The claim that went to trial in this case was not a negligence claim against
Aryka Knous (the negligent driver). It was a contract claim against Liberty
Mutual to recover UIM benefits under the Policy. So Sims had the burden to
introduce the Policy under which he was making his claim to prove his case in
chief. And the trial court had to know what the UIM policy limit under the Policy
was in order to craft a judgment (assuming Sims prevailed). But there was a
factual dispute between the parties regarding what the policy limit was.
In its original discovery responses, Liberty Mutual produced what it
contended was a true and correct copy of the Policy, which stated that the UIM
policy limit was $1 million. Liberty Mutual also admitted in response to Sims’s
Requests for Admission that the UIM policy limit was $1 million. Later, Liberty
Mutual “supplemented” its discovery responses, producing what it claimed was an
amendatory endorsement that had reduced the UIM policy limit to $250,000. But
it never:
(i) asked the trial court for leave to withdraw its judicial admission
that the UIM policy limit was $1 million;
(ii) produced any admissible evidence that the alleged endorsement
had ever been effectuated; or
17
(iii) identified any witnesses to testify regarding the alleged
modification of the Policy.
Further, there were other circumstances indicating that the Policy had never been
modified to reduce the policy limit.
So, Sims prepared to prove the elements of his UIM claim, including that he
was covered by $1 million of UIM coverage under the Policy. Liberty Mutual
never moved for summary judgment or otherwise sought to establish as a matter of
law that the Policy had been modified to reduce the policy limit to $250,000. And
at trial, Liberty Mutual refused to concede that the policy limit was $1 million
(despite its still-effective judicial admission that it was). To the contrary, Liberty
Mutual claimed that the policy limit was $250,000 as a matter of law due to the
alleged modification, and that the trial should not even proceed, since it had
tendered $250,000 to Sims. For his part, Sims never stipulated or agreed that the
policy limit was $250,000 or that the Policy had been modified to reduce the
policy limit. So, there was a factual dispute between Sims and Liberty Mutual
regarding whether the Policy had been modified to reduce the policy limit.
But at trial, Liberty Mutual offered no admissible evidence to prove the
Policy had been modified to reduce the policy limit. And even if it had, such
evidence would have been barred because Liberty Mutual had never sought or
18
obtained the trial court’s permission to withdraw its judicial admission that the
policy limit was $1 million.
By contrast, Sims introduced admissible, conclusive evidence (including the
Policy and Liberty Mutual’s judicial admission) that the policy limit was $1
million. The jury found that the policy limit was $1 million and that Sims’s
damages were approximately $2.5 million. When Sims moved for a $1 million
judgment on the verdict, Liberty Mutual moved the court to disregard the jury’s
verdict and render judgment for $250,000, arguing that its policy limit was
$250,000 as a matter of law. In support of this request, Liberty Mutual attached
yet a third version of what it claimed was the actual policy, again without any
admissible evidence to authenticate it or establish that the Policy had been
modified to reduce the UIM policy limit from $1 million to $250,000. The trial
court properly entered judgment against Liberty Mutual for $1 million, because
the evidence properly admitted at trial conclusively established that the policy
limit was $1 million, and Liberty Mutual failed to carry its burden of proving that
the Policy had been modified to reduce the policy limit to $250,000.
19
ARGUMENT
I. AS A MATTER OF LAW, THE UIM POLICY LIMIT IN THE POLICY WAS $1
MILLION.
Liberty Mutual’s first issue — and indeed its entire appeal — is premised
on the assumption that the Policy was modified to reduce the UIM policy limit
from $1 million to $250,000. But Liberty Mutual never offered any admissible
evidence to prove that factual premise, and in fact judicially admitted that the
policy limit was $1 million.
A. Sims offered conclusive evidence that the UIM policy limit was $1
million.
Sims read to the jury Liberty Mutual’s answer to Sims’s Request for
Admission No. 6, in which Liberty Mutual admitted that the UIM policy limit was
$1 million. [6 CR 950; 3 RR 62] “A matter admitted under [Texas Rule of Civil
Procedure 198] is conclusively established as to the party making the admission
unless the court permits the party to withdraw or amend the admission,” and
“[t]he court may permit the party to withdraw or amend the admission [only] if:
(a) the party shows good cause for the withdrawal or amendment; and (b) the court
finds that the parties relying upon the responses and deemed admissions will not
be unduly prejudiced and that the presentation of the merits of the action will be
subserved by permitting the party to amend or withdraw the admission.” TEX. R.
20
CIV. P. 198.3 (emphasis added). Liberty Mutual neither sought nor obtained the
court’s leave to withdraw or amend its responses to any of Sims’s Requests for
Admission — even when Sims’s counsel explicitly pointed out that it needed to
do so. [3 RR 59] So its attempt to withdraw its admission that the policy limit
was $1 million by unilaterally “amending” it [4 RR 135-136] was ineffectual. And
“[a]n admission once admitted, deemed or otherwise, is a judicial admission, and a
party may not then introduce testimony to controvert it.” Marshall v. Vise, 767
S.W.2d 699, 700 (Tex. 1989). Accordingly, Liberty Mutual was not entitled to
introduce evidence controverting its admission that the policy limit was $1
million, and its admission was conclusive and binding.
Furthermore, Plaintiff’s Exhibit 13 was admitted without objection as to its
genuineness or authenticity. [3 RR 56-57] That Exhibit unambiguously showed
the UIM policy limit to be $1 million. [PX-13, Bates No. DEFN 00010 (5 RR,
Part II, p. 802)] And as demonstrated below, Liberty Mutual failed to offer any
competent evidence that the Policy was modified to reduce the UIM policy limit to
$250,000. Accordingly, Sims conclusively established that the policy limit was $1
million. And even if Sims’s evidence were not conclusive, it was certainly
sufficient to support the jury’s finding that the policy limit was $1 million. [6 CR
1005]
21
B. Liberty Mutual offered no admissible evidence that the Policy
was modified to reduce the UIM policy limit to $250,000.
Whether a contract was modified depends on the parties’ intentions and is a
question of fact. Hathaway v. General Mills, Inc., 711 S.W.2d 227, 228 (Tex.
1986); Naik v. Naik, 438 S.W.3d 166, 173 (Tex. App.—Dallas 2014, no pet.);
Stowers v. Harper, 376 S.W.2d 34, 39 (Tex. Civ. App.—Tyler 1964, writ ref’d
n.r.e.). A modification must satisfy the elements of a contract: a meeting of the
minds supported by consideration. Hathaway, 711 S.W.2d at 228; Naik, 438
S.W.3d at 173. The party asserting a modification to a contract has the burden of
proof. Hathaway, 711 S.W.2d at 228; Naik, 438 S.W.3d at 173; Stowers, 376
S.W.2d at 39 (placing burden of proof on defendant asserting modification).
1. Liberty Mutual offered no evidence that Liberty Mutual and
Chesapeake ever agreed to modify the policy limit.
A binding contract must have an offer and an acceptance, and the offer must
be accepted in strict compliance with its terms. Advantage Physical Therapy, Inc.
v. Cruse, 165 S.W.3d 21, 26 (Tex. App.—Houston [14th Dist.] 2005, no pet.). The
parties must have a meeting of the minds, and each party must communicate its
consent to the terms of the agreement. Id. The offer must be clear and definite
just as there must be a clear and definite acceptance of all terms contained in the
offer. Id. To form a binding contract, the party to whom the offer is made must
22
accept such offer and communicate such acceptance to the person making the
offer. Id. Thus, to prove a valid acceptance of an offer to modify a contract, there
must be evidence that the party asserting the modification called the other party’s
attention to the proposed modification and that the other party accepted the terms
of the proposed modification. Stowers, 376 S.W.2d at 39.
Here, Liberty Mutual offered no such evidence. Prior to jury selection,
Liberty Mutual tendered “for the Court’s record” (but not to be admitted into
evidence) 252 pages that its counsel asserted (without any evidence) were “the
complete policy,” including alleged endorsements to the Policy. [2 RR 23]
During trial, Liberty Mutual offered as Defendant’s Exhibit 12 fourteen pages that
its counsel asserted (again without any evidence) were amendatory endorsements
to the Policy (including one purporting to reduce Chesapeake’s Texas UIM policy
limit to $250,000 [DX-12, Bates No. DEFN 00241 (5 RR, Part II, p. 875)]. Upon
Sims’s objections, this exhibit was excluded. [4 RR 71-75] Finally, after the
verdict was rendered and received, Liberty Mutual attached as Exhibit A to its
Motion to Disregard (i) 311 pages that it claimed to be the complete Policy and all
its endorsements and (ii) an unsworn “Policy Certification Form” stating, “I certify
this is to be a true copy of the original policy issued.” [7 CR 1060—8 CR 1388]
Liberty Mutual never offered any testimony from any employee of Chesapeake or
23
Liberty Mutual to authenticate these documents or establish that the parties
actually agreed to and properly effectuated the alleged endorsement reducing the
Texas UIM policy limit to $250,000.
“Writings, standing alone, do not constitute evidence per se; they must
ordinarily be accompanied by proof of some sort to show that they are genuine and
executed by the party charged with their execution.” 36 TEX. JUR. 3D Evidence §
360 (Westlaw 2014). Thus, “[a] private writing must be proved to be genuine
before it can be admitted into evidence, especially when it is offered against a
person not a party to the writing.” Kaufhold v. McIver, 682 S.W.2d 660, 667 (Tex.
App.—Houston [1st Dist.]1984, writ ref’d n.r.e.). See also Zodiac Corp. v.
General Elec. Credit Corp., 566 S.W.2d 341, 346 (Tex. Civ. App.—Tyler 1978,
no writ) (“The requirement is that the document be authenticated as genuine
before it can be used.”). Further, “[a]s a general rule, to secure the admission of an
instrument allegedly executed by an agent on behalf of his or her principal, the
agent’s authority to bind the principal must be shown.” 36 TEX. JUR. 3D Evidence
§ 362 (Westlaw 2014).
Liberty Mutual offered no admissible evidence that Chesapeake ever agreed
to the alleged endorsement reducing the Texas UIM policy limit to $250,000
(Bates No. DEFN 00241 in CX-1 and DX-12). Liberty Mutual called no employee
24
of Chesapeake (or even Liberty Mutual) to testify that Chesapeake agreed to the
alleged modification. The 14 pages of alleged endorements contained signatures
on only two pages. One of these purported to be the signature of “Stacy Roberts,
Vice President — Risk Management,” but that signature only related to New
Mexico UIM coverage. [Bates No. DEFN00246-00247 in CX-1 and DX-12]
Further, Liberty Mutual offered no evidence to prove that this signature was
genuine, or that Stacy Roberts was authorized to agree to the modification of the
terms of the New Mexico UIM coverage on behalf of Chesapeake. The alleged
endorsements also contained a signature that purported to be that of “Patricia
Faunce,” which was on an MCS-90 endorsement issued to Performance
Technologies, LLC. [Bates No. 00251 in CX-1 and DX-12] Of course, the MCS-
90 has nothing to do with the limit of Texas UIM coverage. And the fact that this
was an endorsement to a policy belonging to Performance Technologies, rather
than Chesapeake, casts further suspicion on the genuineness of the alleged
endorsements.
In its brief, Liberty Mutual relies almost exclusively on the 311-page
document that it submitted for the first time after the verdict was rendered and
received as an exhibit to its Motion to Disregard. But it was by then too late for
Liberty Mutual to offer any such evidence. “When it clearly appears to be
25
necessary to the due administration of justice, the court may permit additional
evidence to be offered at any time; provided that in a jury case no evidence on a
controversial matter shall be received after the verdict of the jury.” TEX. R. CIV.
P. 270. Because the matter of whether the Policy had been modified to reduce the
UIM policy limit was disputed, the trial court could not have permitted Liberty
Mutual to present additional evidence on that matter after the verdict, even if
Liberty Mutual had asked it to. And Liberty Mutual never asked the court to
permit the presentation of additional evidence, and the court didn’t do so. Sims
objected to the Exhibits to Liberty Mutual’s Motion to Disregard on the ground
that new evidence could not be admitted after Liberty Mutual rested and closed
and the verdict was rendered and received. [8 CR 1393] The trial court impliedly
sustained Sims’s objection when it signed Sims’s proposed judgment. [10 CR
1680-1683] So, Liberty Mutual cannot rely on the Exhibits to its Motion to
Disregard to establish that the Policy was modified.
Furthermore, Rule 270 does not “alter the rules of evidence as to the
character of evidence which is admissible; hearsay evidence would no more be
admitted under this rule than it could be admitted if offered before the evidence
had been closed.” Brandon v. Schroeder, 167 S.W.2d 599, 602 (Tex. Civ.
App.—Galveston 1942), rev’d on other grounds, 141 Tex. 319, 172 S.W.2d 488
26
(1943). Sims objected that the certification that purported to authenticate the 311-
page document included in Exhibit A to Liberty Mutual’s Motion to Disregard
was inadmissible hearsay [8 CR 1393], which it was. TEX. R. EVID. 801(d), 802;
Benchmark Ins. Co. v. Sullivan, No. 12-07-00223-CV, 2009 WL 1153385, at *3
(Tex. App.—Tyler April 30, 2009, no pet.) (mem. op.). The trial court impliedly
sustained Sims’s objection when it signed Sims’s proposed judgment. [10 CR
1680-1683] So, even if the trial court had reopened the evidence (which it didn’t
and couldn’t), there was no competent evidence to authenticate the genuineness of
the documents attached to Liberty Mutual’s Motion to Disregard.
Moreover, the trial court properly excluded Court Exhibit 1, Defendant’s
Exhibit 12 and the documents attached to Liberty Mutual’s Motion to Disregard
because Liberty Mutual had judicially admitted that the Policy’s UIM policy limit
was $1 million. [6 CR 950] Accordingly, that fact was conclusively established,
and Liberty Mutual couldn’t introduce any evidence to the contrary. TEX. R. CIV.
P. 198.3; Marshall v. Vise, 767 S.W.2d 699, 700 (Tex. 1989). And Liberty
Mutual’s attempt to undo its admission by unilaterally “amending” it [4 RR 135-
136] was ineffectual, since Liberty Mutual neither asked for nor received the trial
court’s permission to withdraw its admissions. TEX. R. CIV. P. 198.3.
Accordingly, Liberty Mutual was not entitled to introduce evidence controverting
27
its admission that the policy limit was $1 million. Liberty Mutual therefore
offered no admissible evidence that Chesapeake and Liberty Mutual ever agreed to
modify the Texas UIM policy limit and failed to carry its burden of proving the
alleged modification of the Policy.
Finally, even if the documents Liberty Mutual offered had been admissible
(which they weren’t), they still didn’t raise a fact issue regarding whether the
Policy had been modified to reduce the UIM policy limit. The Policy stated:
We will not cancel this policy or make changes that reduce the
insurance afforded by this policy until written notice of cancellation
or reduction has been mailed or delivered to [Chesapeake] at least:
a) 10 days before the effective date of cancellation, if we cancel for
non-payment of premium; or
b) 90 days before the effective date of the cancellation or reduction if
we cancel or reduce the insurance afforded by this policy for any
other reason.
[PX-13 (Bates No. DEFN 00063) (5 RR, Part II, p. 855) (emphasis added)]
Liberty Mutual offered no evidence that it had ever given Chesapeake written
notice of any reduction in the UIM policy limit. Consequently, it failed to prove
that the Policy was modified to reduce the policy limit. Hathaway, 711 S.W.2d at
228.
28
2. Liberty Mutual offered no evidence that it gave consideration
for any reduction of the policy limit.
Consideration is a present exchange bargained for in return for a promise.
Roark v. Stallworth Oil and Gas, Inc., 813 S.W.2d 492, 496 (Tex. 1991). It
consists of either a benefit to the promisor or a detriment to the promisee. Id. The
detriment must induce the making of the promise, and the promise must induce the
incurring of the detriment. Id.
Liberty Mutual claims that the Policy was modified retroactively to the
inception of the Policy to reduce the UIM policy limit from $1 million to
$250,000. But it offered no evidence that Chesapeake received any refund for
overpayments of premiums for the period when the policy limit was $1 million,
that the premium was decreased to reflect any modification after the Policy was
allegedly modified, or that Liberty Mutual gave any other consideration to
Chesapeake in exchange for the alleged reduction in the policy limit.
Accordingly, Liberty Mutual failed to carry its burden of proving that the Policy
was modified to reduce the policy limit. Hathaway, 711 S.W.2d at 228.
29
II. THE TRIAL COURT PROPERLY INCLUDED THE FACTUAL DISPUTE OVER
WHETHER THE POLICY LIMIT HAD BEEN REDUCED IN THE ISSUES TRIED
TO THE JURY.
Liberty Mutual’s first issue argues that (i) the language of the Policy was
unambiguous and Sims didn’t plead that it was ambiguous, (ii) therefore its
interpretation was a question of law for the trial court, and (iii) therefore, the trial
court erred in admitting evidence regarding the policy limit and submitting the
question inquiring into the policy limit to the jury.7 But the factual dispute that the
jury decided was not what the language of the contract meant, but rather whether
the Policy was modified to reduce the UIM policy limit from $1 million to
$250,000. In arguing that the interpretation of “the contract” was a question of
law for the court, Liberty Mutual erroneously presumes that “the contract” that
bound the parties was a contract that Liberty Mutual claimed — but didn’t prove
— existed: CX-1, DX-12 and Exhibit A to Liberty Mutual’s Motion to Disregard.
But the evidence at trial and the jury’s verdict established that the actual
“contract” that bound the parties was the one that Liberty Mutual judicially
7
In support of its argument, Liberty Mutual cites cases that address disputes
where both parties agree about the existence and terms of the contract, and merely
disagree about the interpretation of the contract’s language. This case, by contrast,
involves a dispute about whether the contract was ever modified, so there is
disagreement about whether the parties are bound by the original contract (PX-13)
or the purported modification of the contract (DX-12). The cases upon which
Liberty Mutual relies are inapposite.
30
admitted and the evidence established to exist: PX-13, with a $1 million UIM
policy limit.
Liberty Mutual insisted that PX-13 was not the actual Policy because the
Policy had been modified by DX-12. So there was a dispute as to whether the
alleged modification reducing the policy limit from $1 million to $250,000 was
ever effectuated. Hathaway v. General Mills, Inc., 711 S.W.2d 227, 228 (Tex.
1986). It was Liberty Mutual’s burden to prove that it was, id., and Liberty
Mutual had the opportunity to do so. It could have done so by (i) moving the trial
court to withdraw its admissions, TEX. R. CIV. P. 198.3, and (ii) producing
admissible evidence that the Policy had been modified. Hathaway, 711 S.W.2d at
228. But it didn’t. So, Liberty Mutual is simply wrong when it says that “the
contract” unambiguously provided only $250,000 in UIM coverage. To the
contrary, “the contract” that was proven at trial to exist (PX-13) unambiguously
provided that the policy limit was $1 million. [PX-13, Bates No. DEFN 00010 (5
RR, Part II, p. 802)] Liberty Mutual cannot now say that (i) the real contract
consists of the documents attached to its Motion to Disregard, (ii) those documents
unambiguously provide that the policy limit was $250,000, and therefore (iii) the
trial court erred in submitting the issue of the policy limit to the jury.
31
Moreover, Sims is not attempting to “create coverage” by waiver or
estoppel. This was a suit on a contract, and Sims established that the contract
provided $1 million in coverage. Liberty Mutual failed to prove that the contract
had been modified to reduce the policy limit. Thus, it was established that the
policy limit was $1 million. The trial court’s judgment did not create coverage
that did not exist under the Policy by virtue of waiver or estoppel. Instead, it
simply recognized that the evidence at trial demonstrated that the Policy was never
modified to reduce the policy limit.
Liberty Mutual’s argument that the trial court’s judgment is an erroneous
creation of coverage by waiver or estoppel is absurd, for it would mean that
insurance companies were simply beyond the reach of the justice system.
According to Liberty Mutual, it doesn’t matter that Liberty Mutual wholly failed at
trial to prove that the Policy was modified to reduce the policy limit. As long as
Liberty Mutual claims the Policy was modified — even without offering any
competent evidence — any judgment based on the original policy limit would be
imposing liability on the basis that Liberty Mutual “waived” or is “estopped” by
its failure of proof to rely on the modification. None of the cases Liberty Mutual
cites support this notion.
32
III. EVIDENCE OF THE POLICY LIMIT WAS RELEVANT AND ADMISSIBLE TO
PROVE AN ELEMENT OF SIMS’S CLAIM .
In its second issue, Liberty Mutual claims that, even though it claimed that
the policy limit was only $250,000 because the Policy had been modified,
evidence of the policy limit was irrelevant to any issue to be determined by the
jury. Liberty Mutual cites no authority that supports this proposition.
In In re Reynolds, 369 S.W.3d 638 (Tex. App.—Tyler 2012, orig.
proceeding), this Court held that a negligence claim against an underinsured driver
and a UIM claim did not involve the same facts and issues because, while both
claims involved the issues of the underinsured driver’s negligence and the
plaintiff’s damages, the UIM claim required the plaintiff to prove that he had UIM
coverage. Id. at 652. Accordingly, the Court held that a trial court had no
discretion to refuse to sever the UIM claim from the negligence claim, because
“evidence of insurance is not admissible in the trial of [the plaintiff’s] negligence
claims against [the underinsured driver],” “[b]ut evidence of . . . [the plaintiff’s]
UIM coverage is required to establish [the plaintiff’s] UIM clai[m].” Id. at 653
(emphasis added).
Of course, in most cases the UIM policy limit is stipulated, so there is no
reason for the jury to hear evidence of the policy limit in the UIM case. Sims’s
33
counsel openly recognized this, and agreed not to offer any evidence of the policy
limit if Liberty Mutual would stipulate that the policy limit was $1 million, as it
had judicially admitted. But Liberty Mutual obstinately refused to do so, instead
insisting that the policy limit was $250,000, despite its judicial admission to the
contrary and its failure to offer any admissible evidence to support its contention.
The trial court therefore reached the only conclusion that it could: that there was a
dispute as to the policy limit. [3 RR 10] And indeed, Liberty Mutual admitted
that such a factual dispute existed. [3 RR 8]
Further, that dispute was not a dispute about interpreting the language of the
Policy. Rather, it was a dispute about whether the Policy had been modified to
reduce the policy limit from $1 million to $250,000. That was a question of fact
for the jury. Hathaway v. General Mills, Inc., 711 S.W.2d 227, 228 (Tex. 1986).
Although disputes regarding the policy limit are rare, when there is a dispute
regarding the policy limit, the jury must hear evidence about the policy limit and
resolve the factual dispute. Leuchtenmacher v. Farm Bureau Mut. Ins. Co., 461
N.W.2d 291, 294-95 (Iowa 1990). Otherwise, how could the court craft a
judgment?
Liberty Mutual’s position regarding how, when and by whom this factual
dispute should be determined has been inconsistent, but none of its suggested
34
answers to these questions make any sense. Initially, Liberty Mutual posited that
the issue of the policy limit could only be determined in the severed extra-
contractual case. [3 RR 8] That argument is obviously incorrect, for in many
(indeed most) UIM cases, the plaintiff never makes an extra-contractual claim.
Yet in any UIM case in which the plaintiff prevails, the court must enter a
judgment against the insurance company in a specific amount, which cannot
exceed the UIM policy limit (since the insurer’s liability is contractual, and
therefore limited by the policy limit in the contract). Henson v. Southern Farm
Bureau Cas. Ins. Co., 17 S.W.3d 652, 654 (Tex. 2000) (“And because the damages
exceeded Contreras’ liability policy limits, Henson became entitled to the
uninsured/underinsured motorist policy benefits, up to the policy limits.”
(emphasis added)); Mid-Century Ins. Co. Of Texas v. McLain, No. 11-08-00097-
CV, 2010 WL 851407, at *1, *3 (Tex. App.—Eastland March 11, 2010, no pet.)
(mem. op.) (“McLain’s claim in this case, made pursuant to her insurance policy,
was contractual in nature.” . . . “The judgment against Mid-Century should not
have exceeded $20,000 [the UIM policy limit].”). How can the trial court fashion
a proper judgment against the insurer in the UIM case when there is an unresolved
factual dispute about the policy limit?
35
Liberty Mutual then contended that the issue of the policy limit was one of
contract interpretation that was a question of law for the court, rather than a
question of fact for the jury. [3 RR 10-11] But as noted above, in this case the
dispute was not over what the language of the Policy meant, but whether the
alleged modification to reduce the policy limit was ever effectuated. As Sims
explained this to the trial court [3 RR 11], that was a question of fact for the jury.
Hathaway, 711 S.W.2d at 228.
Liberty Mutual’s third argument regarding when and by whom the matter of
the policy limit must be determined was perhaps its most absurd. Liberty Mutual
claimed that, despite the factual dispute about the policy limit, the only issues the
jury should decide in the UIM case were whether the underinsured driver was at
fault and the amount of Sims’s damages, because “the judgment should be
whatever the jury comes up with regardless of policy amounts.” [3 RR 11] But of
course, if that were the case, the trial court’s judgment in this case would have
ordered Liberty Mutual to pay Sims $2,540,885.40. [6 CR 1008-1109] Yet
Liberty Mutual argued that the court should only award $250,000, because that is
what Liberty Mutual claimed (without any evidence) was the policy limit. [7 CR
1050] And it is fundamental that the judgment in a UIM case is limited to the
36
policy limit, even if the damages the jury awards exceed the policy limit. Mid-
Century Ins. Co., 2010 WL 851407 at *3.
Finally, Liberty Mutual theorized that, once the judgment in the full amount
of Sims’s damages were entered in this case, “then the policy will kick in, and then
the question is how much does the policy pay? What are the limits? And that is a
question that would be determined in the federal court in the severed cause of
action.” [3 RR 12] This is wrong for two reasons, both of which have been
addressed above. First, the question of what the policy limit is must be resolved
before the judgment is entered in the UIM case, because the judgment against the
insurer in the UIM case cannot exceed the policy limit. Second, in most UIM
cases there is never any extra-contractual claim asserted, so it is obvious that
factual disputes about UIM policy limits cannot be reserved exclusively for extra-
contractual cases.
The correct answer to the question is the one Sims provided: When there is
a factual dispute regarding whether the UIM policy was modified to change the
policy limit, the jury must resolve that factual issue in the UIM case so that the
trial court can fashion the judgment. Indeed, in one of the very cases Liberty
Mutual cites in its brief, the Eastland Court of Appeals held that it was the
plaintiff’s burden to introduce her insurance policy to establish the policy limit,
37
and that she should do so upon remand. Mid-Century Ins. Co., 2010 WL 851407
at *1-*3. In that case, the plaintiff had failed to introduce her UIM policy at trial.
After the trial, the insurance company introduced it in order to establish the policy
limit so the court could craft a judgment. The plaintiff argued that the court
should enter judgment for the entire amount of damages the jury found she had
suffered (over $116,000) because it was the insurance company’s burden to
establish the policy limit. The court of appeals rejected this argument, saying:
Despite the fact that it was her burden of proof, McLain contended
that Mid-Century had not introduced McLain’s policy during the jury
trial . . .. McLain’s counsel erroneously argued to the trial court, and
now to this court, that it was Mid-Century’s burden to introduce
McLain’s policy . . . into evidence. The long established Texas law is
that a plaintiff seeking recovery against an insurance company for
injuries resulting from the negligence of an uninsured motorist must
plead and prove that, at the time of the accident, the plaintiff was
protected by uninsured motorist coverage. In the retrial of this case,
McLain should introduce a copy of her policy and establish her
UIM coverage if she continues to contend that the policy introduced
by Mid-Century was not her policy at the time.
Id. at *1-*2 (emphasis added).8
8
In Mid-Century, the trial court permitted the insurer to introduce the policy
after the verdict. Id. at *1. However, the plaintiff could not complain about that
procedural irregularity, because it benefitted the plaintiff. In the absence of
evidence of the UIM policy, the plaintiff couldn’t have recovered at all. Further,
the plaintiff had judicially admitted prior to trial that the UIM policy limit was
$20,000. So, there was no harm to the plaintiff in the insurer introducing the
policy post-verdict. Id. at *3 (“Despite McLain’s failure to introduce the policy,
Mid-Century did introduce a copy of the policy with its provision for $20,000 in
38
In this case, there was a dispute as to whether the Policy had been modified
to reduce the policy limit. So Sims satisfied his burden of proof by introducing the
Policy, as he was required to do. At that point, it was Liberty Mutual’s burden to
establish that the Policy had been modified. Hathaway, 711 S.W.2d at 228.
Liberty Mutual simply failed to carry its burden of proof, and the jury found that
the policy limit was $1 million. [6 CR 1005]
If, as Liberty Mutual claims in this appeal, it will unduly prejudice the
insurer for the jury to hear evidence of the policy limit, there are a plethora of
procedural options available to ameliorate any such prejudice. One is for the
insurer to file a motion for summary judgment, if it believes it can establish as a
matter of law that the policy was modified to reduce the policy limit. Liberty
Mutual didn’t do that here. Another option is to move to bifurcate the trial, so that
the first phase involves only the questions of the underinsured driver’s fault and
the plaintiff’s damages, and the second phase litigates the question of whether the
policy was modified to reduce the policy limit. That way, evidence of the policy
UIM benefits. At the outset of trial, counsel for McLain told the court that . . . the
UIM limit in her policy was $20,000.”). In the case at bar, by contrast, Sims
always contended that the UIM policy limit was $1 million, and introduced
conclusive evidence to support that contention at trial. Liberty Mutual then had
the burden to introduce evidence at trial of the alleged modification. TEX. R. CIV.
P. 270; Hathaway, 711 S.W.2d at 228.
39
limit could be excluded from the first phase, but the jury would still resolve the
factual dispute about the policy limit in the second phase.9 Liberty Mutual did not
move to bifurcate the trial in this case. A third option (albeit probably less potent
than the first two) would be to ask the court to instruct the jury that it should not
consider the policy limit when determining the questions of fault and damages.
Liberty Mutual requested no such instruction here.
Liberty Mutual can’t blame the trial court for the result in this case. Liberty
Mutual has only itself to blame. It judicially admitted that the policy limit was $1
million, and failed to move the court for leave to withdraw that admission when it
decided it wanted to take a different position. It produced three different versions
of “the contract,” each time asserting that the document produced was the compete
9
Indeed, Liberty Mutual argues on appeal that the issue of the policy limit
was not relevant (and therefore should have been excluded) until after the jury
found the underinsured motorist at fault and determined Sims’s damages. See
Liberty Mutual’s Brief, pp. 23-24. While the trial court could have bifurcated the
trial so that the policy limit issue was not litigated until after the other issues, the
policy limit was a disputed factual issue that was integral to Sims’s UIM claim,
because Sims was suing under the contract. So the trial court could not have
severed the issues into two different cause numbers, since they were all
components of a single contractual cause of action against Liberty Mutual. In re
Reynolds, 369 S.W.3d 638, 650 (Tex. App.–Tyler 2012, orig. proceeding) (“A
claim is properly severable only if (1) the controversy involves more than one
cause of action . . ..”). Thus, Liberty Mutual’s argument that the policy limit was
not relevant to Sims’s contractual cause of action against Liberty Mutual until
after the jury determined that the underinsured driver was at fault and assessed
Sims’s damages is incorrect.
40
and correct Policy. It failed to identify or call any witnesses from either
Chesapeake or Liberty Mutual to authenticate the alleged endorsement, to testify
that the Policy had been modified to reduce the policy limit, or to explain the
circumstances surrounding the alleged modification. Liberty called no witnesses
— and indeed, presented no admissible evidence of any kind — to establish that it
presented the alleged endorsement to Chesapeake or that Chesapeake ever agreed
to the alleged modification of the Policy. Nor did Liberty Mutual even attempt to
introduce any evidence that it gave any consideration for the alleged modification
or that it provided Chesapeake the required written notice of any intent to reduce
the policy limit. Liberty Mutual didn’t move for summary judgment, move to
bifurcate the trial, or even ask for a limiting instruction. Put simply, Liberty
Mutual failed to properly litigate the case and carry its burden of proof on the
factual dispute regarding whether the Policy was modified to reduce the policy
limit. The trial court did not commit any error in the trial of this case.
IV. THE TRIAL COURT PROPERLY ADMITTED SIMS’S EVIDENCE AND
EXCLUDED LIBERTY MUTUAL’S.
In its third issue, Liberty Mutual complains about the trial court’s (i)
admission of Plaintiff’s Exhibit 13 and Liberty Mutual’s answers to Sims’s
Requests for Admission and (ii) exclusion of Defendant’s Exhibit 12 and Liberty
41
Mutual’s supplemental responses to Sims’s written discovery. The trial court
ruled correctly on every occasion.
A. Standard of Review.
The trial court has broad discretion in admitting and excluding evidence and
will be reversed only when it acted unreasonably or arbitrarily, without regard for
any guiding rules or principles. Lively v. Blackwell, 51 S.W.3d 637, 641 (Tex.
App.—Tyler 2001, pet. denied). Thus, appellate courts do not disturb trial courts’
rulings on relevancy as long as they are within the zone of reasonable
disagreement, and generally leave to the trial court’s discretion questions of
relevancy and the weighing of the probity of evidence versus its prejudicial nature.
PPC Transp. v. Metcalf, 254 S.W.3d 636, 641 (Tex. App.—Tyler 2008, no pet.);
Natural Gas Pipeline Co. of Am. v. Pool, 30 S.W.3d 618, 632 (Tex.
App.—Amarillo 2000), rev’d on other grounds, 124 S.W.3d 188 (Tex. 2003).
Further, an appellate court must uphold the trial court’s evidentiary ruling if there
is any legitimate basis for the ruling, even one not urged below. Lively, 51 S.W.3d
at 641.
Error is not reversible unless it probably caused the rendition of an improper
judgment. An evidentiary error satisfies this standard only where the appellant
shows the whole judgment turned on the complained-of evidence. Goss v. Kellogg
42
Brown & Root Inc., 232 S.W.3d 816, 819 (Tex. App.—Houston [14th Dist.] 2007,
pet. denied). In determining whether error was harmful, this Court reviews the
entire record. PPC Transp., 254 S.W.3d at 643.
B. The trial court properly admitted Plaintiff’s Exhibit 13 (the
Policy).
The trial court properly admitted Plaintiff’s Exhibit 13 (the Policy). When
Sims offered Plaintiff’s Exhibit 13, Liberty Mutual made the following objection:
Your Honor, Plaintiff's Exhibit No. 13 is objected to by Defendant
Liberty for the various reasons we’ve already mentioned. First and
foremost, it’s not in their pleadings as a dispute as to the policy
amounts. There’s a separate lawsuit related to this, which has been
filed in federal court severed from this case, and it’s now in federal
court. This has nothing to do with the issues to be decided in this
case. It’s [unduly] prejudicial, and we think it’s reversible error if
this is admitted.
[3 RR 56]
1. Whether the Policy was modified to reduce the policy limit
was a fact issue to be resolved in this case.
We have addressed above why the “reasons [Liberty Mutual had] already
mentioned” — which included that “[t]here’s a separate lawsuit related to this,
which has been filed in federal court severed from this case, and it’s now in
federal court” and “[t]his has nothing to do with the issues to be decided in this
43
case” — were meritless. Sims was required to introduce the Policy as part of his
case in chief. In re Reynolds, 369 S.W.3d 638, 653 (Tex. App.—Tyler 2012, orig.
proceeding); Mid-Century Ins. Co. Of Texas v. McLain, No. 11-08-00097-CV,
2010 WL 851407, at *1-*2 (Tex. App.—Eastland March 11, 2010, no pet.) (mem.
op.). Further, because there was a factual dispute regarding whether the Policy
had been modified to reduce the policy limit, Sims was entitled to introduce
evidence of what the original policy limit was, Mid-Century Ins. Co., 2010 WL
851407 at *2; Leuchtenmacher v. Farm Bureau Mut. Ins. Co., 461 N.W.2d 291,
294-95 (Iowa 1990), and it was then Liberty Mutual’s burden to prove that it had
been modified to reduce the policy limit. Hathaway v. General Mills, Inc., 711
S.W.2d 227, 228 (Tex. 1986).
2. Sims’s pleading supported the admission of the Policy.
Liberty Mutual’s objection that the introduction of the Policy was not
supported by the pleadings was meritless. Sims’s Third Amended Petition alleged
as follows:
8.
Pleading further, Plaintiff would show that at the time of the
occurrence made the basis of this suit, Knous was an uninsured/
underinsured motorist; and as such, Defendant, LIBERTY MUTUAL
INSURANCE COMPANY, and Defendant, FARMERS TEXAS
COUNTY MUTUAL INSURANCE COMPANY, are liable and
responsible to the Plaintiff for the damages sustained by the Plaintiff.
44
Therefore, Defendants are liable to the Plaintiff for the policy limits
under the policy of insurance issued by LIBERTY MUTUAL
INSURANCE COMPANY to Chesapeake Energy Corporation and
the policy limits under the policy of insurance issued by FARMERS
TEXAS COUNTY MUTUAL INSURANCE COMPANY to Plaintiff,
both of which policies provided uninsured/underinsured motorist
coverage. Said coverages were in effect at the time of the collision,
and all conditions precedent to recovery under the policies of
insurance issued by the Defendants have been complied with and
demand has been made for payment of the same. Therefore, Plaintiff
brings this suit and is entitled to recover under the uninsured/under
insured motorists provision of the policies of insurance in question
the policy limits.
9.
Defendant Liberty Mutual Insurance Company has
misrepresented the uninsured/underinsured policy limits of its
insurance policy issued to Chesapeake Energy Corporation,
representing that the policy limits are $250,000 per accident, when in
fact the limits are $1 million per accident. . . .
[6 CR 939-40 (emphasis added)] Thus, the pleadings clearly supported the
introduction of the Policy, including the policy limits. And indeed, Liberty
Mutual has waived any contention that the trial court erred in overruling this
particular objection by failing to brief it on appeal. TEX. R. APP. P. 38.1(i).
3. The trial court did not abuse its discretion in overruling
Liberty Mutual’s objection under Rule 403.
Finally, the trial court properly overruled Liberty Mutual’s objection that
Plaintiff’s Exhibit 13 was “unfairly prejudicial.” All evidence is prejudicial to one
party or the other. Moss v. State, 75 S.W.3d 132, 141 (Tex. App.—San Antonio
45
2002, pet. ref’d). Accordingly, evidence may be excluded only if its probative
value is substantially outweighed by the danger of unfair prejudice. TEX. R.
EVID. 403. “Unfair prejudice” does not mean that the evidence injures the
opponent’s case, which is the central point of offering evidence. Moss, 75 S.W.3d
at 141. Rather it refers to an undue tendency to suggest decision on an improper
basis, commonly, though not necessarily, an emotional one. Id.
Further, it is only when the potential for unfair prejudice substantially
outweighs the probative value of the evidence that it is to be excluded. TEX. R.
EVID. 403; Pittsburgh Corning Corp. v. Walters, 1 S.W.3d 759, 772 (Tex.
App.—Corpus Christi 1999, pet. denied). That is, it is only when there exists a
clear disparity between the degree of prejudice of the offered evidence and its
probative value that Rule 403 is applicable. Moss, 75 S.W.3d at 141. Thus, it is
presumed that the probative value of relevant evidence exceeds any danger of
unfair prejudice, Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009),
and the exclusion of evidence under Rule 403 should occur only sparingly. United
States v. Pace, 10 F.3d 1106, 1115 (5th Cir. 1993).
In performing the Rule 403 balancing, the court should give the evidence its
maximum reasonable probative force and its minimum reasonable prejudicial
value. World Wide Ass’n of Specialty Programs v. Pure, Inc., 450 F.3d 1132,
46
1139 (10th Cir. 2006). And “[i]n weighing the probative value of evidence against
the dangers and considerations enumerated in Rule 403, the general rule is that the
balance should be struck in favor of admission.” United States v. Dennis, 625
F.2d 782, 797 (8th Cir. 1980). It is the objecting party’s burden to demonstrate that
the probative value is substantially outweighed by the danger of unfair prejudice.
Sanders v. State, 255 S.W.3d 754, 760 (Tex. App.—Fort Worth 2008, pet. ref’d).
Sims was required to introduce the Policy as an element of his proof. In re
Reynolds, 369 S.W.3d at 653; Mid-Century Ins. Co., 2010 WL 851407 at *1-*2.
Further, Liberty Mutual contended at trial that the policy limit was $250,000,
because the Policy had been modified. So, the Policy’s probative value was
extremely high. And because Liberty Mutual refused to stipulate that the policy
limit was $1 million, and prejudice it suffered as a result of Sims proving the $1
million policy limit was not unfair prejudice. Thus, the trial court’s determination
that the probative value of the Policy was not substantially outweighed by the
danger of unfair prejudice was within the zone of reasonable disagreement, and
the court did not abuse its discretion in admitting Plaintiff’s Exhibit 13. PPC
Transp. v. Metcalf, 254 S.W.3d 636 (Tex. App.—Tyler 2008, no pet.).
47
C. The trial court properly admitted Liberty Mutual’s responses to
Sims’s Requests for Admission.
When Sims offered Liberty Mutual’s responses to Sims’s Requests for
Admission into evidence at trial, Liberty Mutual explicitly stated that it did not
object to Sims’s counsel reading its responses to the jury. Liberty Mutual merely
requested under the Rule of Optional Completeness to read its unauthorized
“amendments” to its responses to the Requests for Admission. [3 RR 58-59] We
will address below why the court properly excluded Liberty Mutual’s
“amendments” to its responses to Sims’s Requests for Admission. But Liberty
Mutual’s failure to object to Sims’s reading its original responses waives any error
in admitting them. TEX. R. EVID. 103(a); TEX. R. APP. P. 33.1(a).
Further, the court did not err in admitting Liberty Mutual’s responses.
Although responses to requests for admission properly on file with the clerk need
not be introduced into evidence to be binding and conclusive, Red Ball Motor
Freight, Inc. v. Dean, 549 S.W.2d 41, 43 (Tex. Civ. App.—Tyler 1977, writ
dism’d w.o.j.), they are admissible against the admitting party. Parkway Hosp.,
Inc. v. Lee, 946 S.W.2d 580, 587-88 (Tex. App.—Houston [14th Dist.] 1997, writ
denied), disapproved of on other grounds by Roberts v. Williamson, 111 S.W.3d
113 (Tex. 2003); Cooke v. Dykstra, 800 S.W.2d 556, 561-62 (Tex. App.—Houston
48
[14th Dist.] 1990), opinion modified on rehearing, 1990 WL 310627 (Tex.
App.—Houston [14th Dist.] Nov. 29, 1990, no writ). See also Wal-Mart Stores,
Inc. v. Deggs, 968 S.W.2d 354, 356 (Tex. 1998) (“At trial, Deggs’s counsel read
the deemed admissions to the jury and told the jury that these matters were
conclusively established.”). Further, Liberty Mutual’s invocation of the Rule of
Optional Completeness was not a ground for excluding Liberty Mutual’s original
responses, but at most raised the issue of whether the amended responses should
have been admitted at that time. Lomax v. State, 16 S.W.3d 448, 450 (Tex.
App.—Waco 2000, no pet.). Accordingly, the trial court did not abuse its
discretion in admitting Liberty Mutual’s responses into evidence.
D. The trial court properly excluded Defendant’s Exhibit 12.
Liberty Mutual claims the trial court erred in excluding Defendant’s Exhibit
12, which Liberty Mutual claimed constituted endorsements that modified the
Policy. Liberty Mutual’s sole argument on appeal is that the court was required to
admit Defendant’s Exhibit 12 under the Rule of Optional Completeness. Texas
Rule of Evidence 106 states, “When a writing or . . . part thereof is introduced by a
party, an adverse party may at that time introduce any other part or any other
writing . . . which ought in fairness to be considered contemporaneously with it.”
TEX. R. EVID. 106. Texas Rule of Evidence 107 states, “When part of . . . [a]
49
writing . . . is given in evidence by one party, the whole on the same subject may
be inquired into by the other, and any other . . . writing . . . which is necessary to
make it fully understood or to explain the same may also be given in evidence . .
..” TEX. R. EVID. 107. However, the Rule of Optional Completeness “merely
addresses the order of proof and does not make admissible evidence that should
otherwise be excluded.” First Nat’l Bank of Louisville v. Lustig, 150 F.R.D. 548,
554 (E.D. La. 1993) (citing 1 J. WEINSTEIN AND M. BERGER, WEINSTEIN’S
EVIDENCE ¶ 106[01] (1986)). That is, “Rule 106 does not render admissible
evidence that is otherwise inadmissible.” United States v. Terry, 702 F.2d 299,
314 (2nd Cir. 1983). See also United States Football League v. National Football
League, 842 F.2d 1335, 1375-76 (2nd Cir. 1988).
As explained in detail above, Defendant’s Exhibit 12 was inadmissible for a
number of reasons. First, Liberty Mutual presented no admissible evidence that it
was what it purported to be, i.e., endorsements to the Policy. Kaufhold v. McIver,
682 S.W.2d 660, 667 (Tex. App.—Houston [1st Dist.]1984, writ ref’d n.r.e.);
Zodiac Corp. v. General Elec. Credit Corp., 566 S.W.2d 341, 346 (Tex. Civ.
App.—Tyler 1978, no writ). Second, Liberty Mutual presented no evidence that:
(i) Chesapeake agreed to the alleged reduction in the policy limit,
Stowers v. Harper, 376 S.W.2d 34, 39 (Tex. Civ. App.—Tyler
1964, writ ref’d n.r.e.);
50
(ii) the alleged endorsement was signed by an authorized agent of
Chesapeake, 36 TEX. JUR. 3D Evidence § 362 (Westlaw 2014);
(iii) Liberty Mutual gave Chesapeake the required 90 days’ written
notice of its intent to reduce the policy limit [PX-13, Bates No.
DEFN 00063 (5 RR Vol. II, p. 855)], or
(iv) Liberty Mutual gave any consideration for the alleged
reduction in the policy limit. Hathaway v. General Mills, Inc.,
711 S.W.2d 227, 228 (Tex. 1986).
Further, Defendant’s Exhibit 12 was inadmissible because it was contrary to
Liberty Mutual’s response to Sims’s Request for Admission No. 6, in which
Liberty Mutual admitted that the policy limit was $1 million. TEX. R. CIV. P.
198.3; Marshall v. Vise, 767 S.W.2d 699, 700 (Tex. 1989). Because Defendant’s
Exhibit 12 was inadmissible on all these independent bases, the Rule of Optional
Completeness did not mandate that the trial court admit it, just because Plaintiff’s
Exhibit 13 was admitted. United States v. Terry, 702 F.2d at 314; First Nat’l Bank
of Louisville, 150 F.R.D. at 554.
Indeed, the Rule of Optional Completeness only permits the introduction of
other parts of the same document or transaction. TEX. R. EVID. 106, 107. That
is, the evidence sought to be introduced under the Rule of Optional Completeness
“must bear some reasonable relationship to the [document previously admitted]
and be in explanation thereof.” Travelers Ins. Co. v. Creyke, 446 S.W.2d 954, 957
51
(Tex. Civ. App.—Houston [14th Dist.] 1969, no writ). Because Liberty Mutual
offered no admissible evidence that Defendant’s Exhibit 12 was actually a
properly effectuated modification of the Policy, it was not part of the same
document or transaction, and did not tend to explain anything in Plaintiff’s Exhibit
13. Therefore, it was properly excluded.
E. The trial court properly excluded Liberty Mutual’s supplemental
discovery responses.
Liberty Mutual’s third issue complains that the court erred in excluding its
“amended discovery responses.” Liberty Mutual’s Brief, p. 26. The court did not
err.
1. The court properly excluded Liberty Mutual’s purported
“amendment” to its response to Sims’s Request for
Admission No. 6.
When Sims offered Liberty Mutual’s responses to his Requests for
Admission into evidence, the following colloquy occurred:
MR. KOEN: Your Honor, the only thing we’d ask under the rule of
optional completeness is that he reads the supplemental admissions as
well that were filed.
MR. WHEELER: Your Honor, as far as — it’s our position the
Request for Admissions that have been filed, they’re still in effect.
They have never been taken away from being in effect, and so they’re
evidence in this particular case that we can read to the jury.
52
MR. KOEN: Your Honor, we’re not saying that they can’t be read.
But there were supplemental responses correcting what Mr. Wheeler
is wanting to read to the jury, and I think it’s misleading if he does
not read the supplemental responses as well.
MR. WALKER: Your Honor, the only way that an admission can be
withdrawn is if the Court grants leave to withdraw it on good cause.
And a Request for Admission is not like an interrogatory that you can
just change your answer. You have to have leave of court to change
your answer; that’s never been done. Those supplemental responses
are not proper.
MR. KOEN: Your Honor, one other thing, too. When we
supplemented the discovery, we also supplemented in September — I
think it was October, Your Honor, with the change to the policy,
lowering the policy limits to $250,000. That was previously released
to Plaintiff’s counsel as well. I think it’s misleading to [be] reading
only portions of discovery when, in fact, there are several discovery
responses which address this issue.
THE COURT: Proceed.
MR. KOEN: Can I get a ruling, Your Honor, on my objection to
reading these without — well, I’m going to object without reading the
supplemental discovery as well, just for record purposes.
THE COURT: That’s overruled.
[3 RR 59-60]
In its brief, Liberty Mutual asserts in connection with this colloquy that the
court erred in “permitting Sims to read to the jury Liberty’s original admission that
applicable policy limits were $1 million without requiring the reading of the
supplemental response that corrected it and showed policy limits were $250,000.”
53
Liberty Mutual’s Brief, p. 30. But Liberty Mutual did not provide the trial court
with “Defendant’s First Amended Responses and Objections to Plaintiff’s
Requests for Admissions” (the document in which it purported to “amend” its
response to Request for Admission No. 6, which admitted that the policy limit was
$1 million [4 RR 135-136]). [3 RR 59-60] Nor was that document included in
“Court Exhibit 1,” which had been tendered only for record purposes. [CX-1]
Indeed, that document is not even in the record in this appeal. Liberty Mutual
didn’t even read the purported “amended” response to Request for Admission No.
6 to the court at that time (although Liberty Mutual’s counsel later read its
purported “amendment” to its response to Request for Admission No. 6 to the trial
court [4 RR 135-136]). So, Liberty Mutual failed to make the substance of the
evidence known to the court, and therefore failed to preserve error. TEX. R. EVID.
103(a)(2).
In any event, the court did not err in refusing to permit Liberty Mutual to
read its purported “amendment” to its response to the jury. As noted above, “A
matter admitted under [Texas Rule of Civil Procedure 198] is conclusively
established as to the party making the admission unless the court permits the party
to withdraw or amend the admission.” TEX. R. CIV. P. 198.3 (emphasis added).
Further, “[a]n admission once admitted, deemed or otherwise, is a judicial
54
admission, and a party may not then introduce testimony to controvert it.”
Marshall v. Vise, 767 S.W.2d 699, 700 (Tex. 1989). Since Liberty Mutual had
never asked the trial court to permit it to withdraw its admission that the policy
limit was $1 million (and therefore the court had never permitted Liberty Mutual
to do so), that admission was binding and conclusive upon Liberty Mutual.
Accordingly, it could not introduce evidence contrary to that admission, including
its ineffectual “amendment” to its response to Sims’s Request for Admission.
Further, the Rue of Optional Completeness did not make the ineffectual
“amendment” admissible. That rule permits the remainder of a document to be
introduced “which ought in fairness to be considered contemporaneously with” a
part of the same document that has been admitted. TEX. R. EVID. 106. Liberty
Mutual’s improper “amendment” to its original response to Request for Admission
No. 6 was not part of Liberty Mutual’s original response, which had been
admitted. It could only be a proper part of what had been admitted if the trial
court had granted Liberty Mutual leave to withdraw or amend its original
response. TEX. R. CIV. P. 198.3. Further, the so-called “amendment” was not
something that “ought in fairness to [have been] considered contemporaneously
with” the original response, since it was a wholly improper and ineffective attempt
to withdraw an admission without the court’s permission. Indeed, it would have
55
been completely unfair to permit Liberty Mutual to introduce an improper
“amendment” to a request for admission (and thereby controvert the binding
admission it had made) when Liberty Mutual had neither sought nor obtained the
trial court’s permission to amend its response. Finally, the rationale of the Rule of
Optional Completeness is to introduce into evidence the remainder of a document
to correct any misleading impressions left with the jury by the previously
introduced part of the document. Lomax v. State, 16 S.W.3d 448, 450 (Tex.
App.—Waco 2000, no pet.). There was absolutely nothing misleading about
reading the jury Liberty Mutual’s original (and only proper) response to the
Request for Admission. So, the trial court did not abuse its discretion in refusing
to permit Liberty Mutual to read its improper and unauthorized “amendment” to
the jury.
2. The court properly excluded Liberty Mutual’s supplemental
discovery responses.
Liberty Mutual also complains that the trial court erred in excluding
“Liberty’s offer of proof of Liberty’s amended discovery responses, including
interrogatory answers, requests for production, and requests for admission.”
Liberty Mutual’s Brief, p. 30 (citing to 4 RR 134-137). This offer of proof
included four items: (i) Defendant’s Exhibit 12; (ii) Liberty Mutual’s
56
supplemental response to Interrogatory No. 10; (iii) Liberty Mutual’s
supplemental response to Request for Production No. 9; and (iv) Liberty Mutual’s
“amended” response to Request for Admission No. 6.
We have explained above why the trial court properly excluded Defendant’s
Exhibit 12 and Liberty Mutual’s unauthorized “amendment” to Request for
Admission 6. And the court likewise properly excluded Liberty Mutual’s
supplemental responses to Interrogatory No. 10 and Request for Production No. 9.
In its offer of Liberty Mutual’s supplemental response to Interrogatory No.
10, Liberty Mutual stated:
One of the supplemental responses is to Interrogatory No. 10 that
reads “Please state the amount of policy limits of uninsured and
underinsured motorist coverage of each and every policy that covers
or may cover the claim that [is] made the basis of this suit.” The
response reads: “The amount of the policy limits of the underinsured
and uninsured motorist coverage of each and every policy that covers
or may cover the claim made the basis of this suit is $300,000.
Defendant retains UM/UIM coverage limits of $250,000. Defendant
refers Plaintiff to [the] policy attached hereto as Defendant’s Bates
labeled 2 — 00239-00252. . . . Any previous information given to this
interrogatory is no longer applicable.” [4 RR 134]
The trial court properly excluded Liberty Mutual’s supplemental response
to Interrogatory No. 10 because:
57
1. A party cannot introduce its own answers to interrogatories into
evidence. TEX. R. CIV. P. 193.7 (“Answers to interrogatories
may be used only against the responding party.”); Morgan v.
Anthony 27 S.W.3d 928, 929 (Tex. 2000).
2. When offered by Liberty Mutual, Liberty Mutual’s
interrogatory answer was hearsay. TEX. R. EVID. 801(d), 802.
3. Liberty Mutual’s supplemental response contradicted its
admission that the policy limit was $1 million [6 CR 950],
which had never been withdrawn or amended with the court’s
permission. Accordingly, the supplemental interrogatory
response was inadmissible. TEX. R. CIV. P. 198.3; Marshall v.
Vise, 767 S.W.2d 699, 700 (Tex. 1989).
Accordingly, the trial court properly excluded Liberty Mutual’s supplemental
response to Interrogatory No. 10.
In its offer of Liberty Mutual’s supplemental response to Request for
Production No. 9, Liberty Mutual stated:
Request for Production No. 9 asks for a copy of any additional
uninsured or underinsured policy that may cover the claim in
question. Our response was: “Defendant is unaware of any
additional uninsured or underinsured policy that might provide
coverage for the claims in question. Defendant refers Plaintiff to
Defendant’s Bates label 00002 through 00237, the Liberty Mutual
commercial auto policy previously provided to Plaintiff. Defendant
further refers Plaintiff to the policy attached hereto as Defendants
Bate’s label 00238-00252 regarding the amendments to the policy
regarding the UM/UIM policy limits. . . .” [4 RR 134-135]
The trial court properly excluded Liberty Mutual’s supplemental response
to Request for Production No. 9. Because there is no rule specifically providing
58
that responses to requests for production are or are not admissible, their
admissibility is determined by the Rules of Evidence. Wal-Mart Stores, Inc. v.
Cordova, 856 S.W.2d 768, 772 (Tex. App.—El Paso 1993, writ denied). When
offered by Liberty Mutual, Liberty Mutual’s supplemental response to Request for
Production No. 9 was inadmissible hearsay. TEX. R. EVID. 801(d), 802. Further,
by contending that the unauthenticated, unproven “endorsement” that purportedly
reduced the policy limit was a part of the Policy, Liberty Mutual’s supplemental
response contradicted its admission that the policy limit was $1 million [6 CR
950], which had never been withdrawn or amended with the court’s permission.
Accordingly, the supplemental response to Request for Production No. 9 was
inadmissible. TEX. R. CIV. P. 198.3; Marshall v. Vise, 767 S.W.2d 699, 700 (Tex.
1989).
V. THE ADMISSION OF EVIDENCE OF INSURANCE IN THIS CASE DID NOT
VIOLATE TEXAS RULE OF EVIDENCE 411 OR HARM LIBERTY MUTUAL.
In its fourth issue, Liberty Mutual claims that Chesapeake’s insurance
policy was inadmissible pursuant to Texas Rule of Evidence 411. This contention
is meritless for several reasons.
59
First, Liberty Mutual did not object to the admission of the Policy on this
basis when it was offered. [3 RR 56] Accordingly, Liberty Mutual waived this
objection at trial. TEX. R. EVID. 103(a)(1); TEX. R. APP. P. 33.1(a)(1)(A).
Further, the objection is meritless, even if it had been preserved. Texas
Rule of Evidence 411 states, “Evidence that a person was or was not insured
against liability is not admissible upon the issue whether the person acted
negligently or otherwise wrongfully. This rule does not require the exclusion of
evidence of insurance against liability when offered for another issue, such as
proof of agency, ownership, or control, if disputed, or bias or prejudice of a
witness.” TEX. R. EVID. 411. Liberty Mutual was Chesapeake’s (and by
extension Sims’s) insurer, not the underinsured driver’s (Aryka Knous’s). While
the jury was asked to consider whether Knous was negligent, there was no issue as
to whether Chesapeake was negligent or acted wrongfully. So, the evidence that
Chesapeake was insured against liability was not offered to prove that Chesapeake
acted wrongfully. Instead, it was offered for another purpose: to establish an
element of Sims’s contractual claim against Liberty Mutual. In re Reynolds, 369
S.W.3d 638, 653 (Tex. App.—Tyler 2012, orig. proceeding); Mid-Century Ins. Co.
Of Texas v. McLain, No. 11-08-00097-CV, 2010 WL 851407, at *1-*2 (Tex.
60
App.—Eastland March 11, 2010, no pet.) (mem. op.). So, the admission of the
Policy didn’t violate Rule 411.
Liberty Mutual ignores the fact that the Policy did not insure Knous against
liability — an essential element for Rule 411 to apply — and falls back to its
general argument that the probative value of the evidence of the policy limit was
substantially outweighed by the danger of unfair prejudice. That is an analysis
under Rule 403 (which we have addressed above), not Rule 411. So Liberty
Mutual’s fourth issue is really just a rehash of part of its third issue, which has
been addressed above.
Further, even if the admission of the Policy violated Rule 411 by showing
that Chesapeake was insured against liability, that did not harm Liberty Mutual in
this case. The jury was well aware that this case involved a claim by Sims against
Liberty Mutual under an automobile liability policy that provided Sims with UIM
coverage. Liberty Mutual was the named defendant and openly admitted that the
case involved insurance. [2 RR 49-50] So, Liberty Mutual was not harmed by the
fact that the jury was advised that Chesapeake was insured against liability.
Liberty Mutual’s fourth issue must be overruled.
61
CONCLUSION AND PRAYER
The fundamental premise of Liberty Mutual’s appeal — that the UIM policy
limit in the Policy was $250,000 — is false. The evidence at trial conclusively
established that the policy limit was $1 million. Liberty Mutual failed to offer any
admissible evidence to support its contention that the Policy was modified to
reduce the Policy limit to $250,000, and the trial court committed no error in
admitting or excluding evidence or permitting the jury to determine the policy
limit. Sims therefore prays that the Court affirm the trial court’s judgment. Sims
further prays for any other relief to which he may be entitled.
Respectfully submitted,
Don Wheeler
State Bar No: 21256200
LAW OFFICE OF DON WHEELER
101 Tenaha Street
Center, Texas 75935
Telephone No.: (936) 598-2925
Facsimile No.: (936) 598-7024
velawson@sbcglobal.net
LAW OFFICE OF DARRIN WALKER
6134 Riverchase Glen Dr.
Kingwood, Texas 77345
(281) 358-2295 (telephone)
(281) 358-5602 (facsimile)
darrinwalker@embarqmail.com
62
By: /s/ Darrin Walker
Darrin Walker
State Bar No.: 00788600
Counsel for Appellee Rickie Sims
CERTIFICATE OF COMPLIANCE WITH TEXAS
RULE OF APPELLATE PROCEDURE 9.4
I certify that this brief complies with the limitation of TEX. R. APP. P.
9.4(i)(2)(B) because this brief contains 14,341 words, excluding the parts
exempted by TEX. R. APP. P. 9.4(i)(1).
/s/ Darrin Walker
CERTIFICATE OF SERVICE
I hereby certify that the foregoing motion has been provided to counsel
listed below in the manner indicated on this 27th day of December, 2014.
c.c. David Plautt via electronic service and
Attorney for Appellant via e-mail to dplaut@hannaplaut.com
/s/ Darrin Walker
Darrin Walker
63