in Re Liberty County Mutual Insurance Company

Petition for Writ of Mandamus Denied and Opinion filed October 27, 2020.
In The
Fourteenth Court of Appeals
NO. 14-20-00579-CV
IN RE LIBERTY COUNTY MUTUAL INSURANCE COMPANY, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
190th District Court
Harris County, Texas
Trial Court Cause No. 2019-82275
OPINION
On August 21, 2020, relator Liberty County Mutual Insurance Company filed
a petition for writ of mandamus in this court. See Tex. Gov’t Code Ann. § 22.221;
see also Tex. R. App. P. 52. In the petition, relator asks this court to compel the
Honorable Beau A. Miller, presiding judge of the 190th District Court of Harris
County, to set aside his May 19, 2020 order striking Liberty’s counter-affidavits.
We deny the petition.
BACKGROUND
Darryl Shackelford alleges that, on June 13, 2015, he was traveling eastbound
on State Highway 225, when Roberto Choleva, who was also traveling eastbound
on State Highway 225, lost control of his vehicle and collided with the concrete
median on the left shoulder. Choleva spun out across the main lanes and struck
Shackelford, forcing Shackelford’s vehicle across the highway and into the median.
Shackelford’s vehicle ricocheted back onto the main lanes of the highway. Another
driver, Daniel Hernandez, who was also traveling eastbound on State Highway 225,
failed to control his speed and collided with Shackelford. Shackelford settled his
claims with Choleva and Hernandez.
Shackelford had uninsured/underinsured motorist (“UIM”) coverage with
Liberty, but Liberty failed to pay Shackelford UIM benefits. Shackelford sued
Liberty for breach of contract and violations of the Texas Insurance Code.
Shackelford filed its notice of filing of 32 business record affidavits in the trial
court. In response, Liberty filed its notice of filing of 12 counter-affidavits. On May
4, 2020, Shackelford moved to strike Liberty’s counter-affidavits, and Liberty
responded to the motion. On May 19, 2020, the trial court held a hearing and signed
the order granting Shackelford’s motion, striking all of Liberty’s counter-affidavits.
STANDARD OF REVIEW
Ordinarily, to be entitled to a writ of mandamus, the relator must show that
the trial court clearly abused its discretion, and that the relator lacks an adequate
remedy by appeal. In re Dawson, 550 S.W.3d 625, 628 (Tex. 2018) (original
proceeding) (per curiam). A trial court clearly abuses its discretion if it reaches a
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decision so arbitrary and unreasonable as to amount to a clear and prejudicial error
of law or if it clearly fails to analyze the law correctly or apply the law correctly to
the facts. In re H.E.B. Grocery Co., L.P., 492 S.W.3d 300, 302–03 (Tex. 2016)
(orig. proceeding) (per curiam); In re Cerberus Capital Mgmt., L.P., 164 S.W.3d
379, 382 (Tex. 2005) (orig. proceeding) (per curiam). The adequacy of an appellate
remedy must be determined by balancing the benefits of mandamus review against
the detriments. In re Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex. 2008) (orig.
proceeding). Because this balance depends heavily on circumstances, it must be
guided by analysis of principles rather than simple rules that treat cases as categories.
In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 464 (Tex. 2008) (orig. proceeding).
ANALYSIS
Liberty asserts that (1) the trial court abused its discretion by striking each of
Liberty’s counter-affidavits and (2) Liberty lacks an adequate remedy by appeal.
I. Section 18.001 of the Texas Civil Practice and Remedies Code
A claim for past medical expenses must be supported by evidence that such
expenses were reasonable and necessary as a result of the injury. Whitaker v. Rose,
218 S.W.3d 216, 223 (Tex. App.—Houston [14th Dist.] 2007, no pet.). A plaintiff
can prove reasonableness and necessity of past medical expenses through (1) expert
testimony or (2) an affidavit prepared and filed in compliance with section 18.001
of the Texas Civil Practice and Remedies Code. Id.
Section 18.001(b) provides:
Unless a controverting affidavit is served as provided by this section,
an affidavit that the amount a person charged for a service was
reasonable at the time and place that the service was provided and that
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the service was necessary is sufficient evidence to support a finding of
fact by judge or jury that the amount charged was reasonable or that the
service was necessary. The affidavit is not evidence of and does not
support a finding of the causation element of the cause of action that is
the basis for the civil action.
Tex. Civ. Prac. & Rem. Code Ann. § 18.001(b). The affidavits are not conclusive
but may be controverted by a competing affidavit. Gunn v. McCoy, 554 S.W.3d 645,
672 (Tex. 2018).
If an opposing party intends to controvert a claim shown by the plaintiff’s
section 18.001 affidavit, the opposing party must serve a counter-affidavit. Tex.
Civ. Prac. & Rem. Code Ann. § 18.001(f). The counter-affidavit must give
reasonable notice of the basis on which the party filing it intends to controvert the
claim reflected by the initial affidavit and must be taken before a person authorized
to administer oaths. Id. Furthermore, the counter-affidavit must be made by a person
who is qualified—by knowledge, skill, experience, training, education, or other
expertise—to testify in contravention of all or part of any of the matters contained
in the initial affidavit. Id. By filing a proper controverting affidavit, the opposing
party can force the offering party to prove reasonableness and necessity by expert
testimony at trial. Hong v. Bennett, 209 S.W.3d 795, 801 (Tex. App.—Fort Worth
2006, no pet.).
II. Adequate Remedy by Appeal
Liberty claims that it does not have an adequate remedy by appeal because it
will lose the substantial right of presenting evidence at trial to contradict
Shackelford’s affidavits. Liberty also asserts that public and private resources will
be wasted on an improper proceeding that will be reversed on appeal.
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The Twelfth Court of Appeals, the first court to address whether a party whose
counter-affidavit has been stricken has an adequate remedy by appeal, held that the
relators in that case did not have an adequate remedy by appeal. See In re Brown,
No. 12-18-00295-CV, 2019 WL 1032458 (Tex. App.—Tyler, Mar. 5, 2019, orig.
proceeding) (mem. op.). The Brown court held that the relators would lose
substantial rights if the trial court’s error in improperly striking a counter-affidavit
was not addressed until appeal, after trial. Id. at *5. Because the section 18.001
affidavit provides for the exclusion of evidence to the contrary in the absence of a
properly filed counter-affidavit, the relators would be prevented from presenting
evidence that contradicted the affidavits of the plaintiff’s medical providers. Id. The
court explained that the relators could (1) make arguments contesting the plaintiff’s
affidavits during opening statements and closing arguments; (2) cross-examine the
plaintiff about his injuries and prior medical conditions; and (3) introduce
corresponding medical records because a section 18.001 affidavit does not establish
conclusive evidence of the reasonableness or necessity of the charges or the
causation of corresponding injuries. Id.
The Brown court, however, concluded that these limited avenues are “a far
cry from the rights and protections afforded a party who has filed a proper counter-
affidavit.” Id. The court acknowledged that appellate courts do not usually grant
mandamus for the exclusion of evidence but went on to explain that “this case is not
as simple as the exclusion of evidence.” Id. at *6. When a counter-affidavit is
stricken and the ruling is the basis of an appeal, the court must determine whether
error is harmful—whether the error probably caused the rendition of an improper
judgment. Id. Prohibiting a defendant from presenting evidence negating the
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plaintiff’s damages is generally considered harmful error and will result in reversible
error and irreversible waste of resources. Id. The court held, under “the special,
unique circumstances” of that case, that the relators did not have an adequate remedy
by appeal. Id.
Since Brown issued, other courts of appeals considering orders striking
counter-affidavits have declined to follow Brown and, instead, have held that a
relator whose counter-affidavits have been stricken has an adequate remedy by
appeal. See, e.g., In re Savoy, No. 03-19-00361-CV, ― S.W.3d ―, 2020 WL
4726591 (Tex. App.―Austin July 30, 2020, orig. proceeding); In re Parks, No. 05-
19-00375-CV, 2020 WL 774107 (Tex. App.―Dallas Feb. 18, 2020, orig.
proceeding) (mem. op.); In re Flores, 597 S.W.3d 533 (Tex. App.―Houston [1st
Dist.] 2020, orig. proceeding). Liberty acknowledges the split among Texas courts
of appeals.
After reviewing decisions from our sister courts, we also decline to follow
Brown and hold that Liberty has an adequate remedy by appeal. Nothing in the
Texas Rules of Civil Procedure or the Texas Rules of Appellate Procedure suggests
that on appeal, an appellate court could not cure error, if any, of the trial court’s
exclusion of the counter-affidavit. See Flores, 597 S.W.3d at 536. Striking a
counter-affidavit concerning medical expenses does not impair the presentation of a
viable claim or defense. Id. at 536–37. The compromising of a party’s ability to
present a viable claim or defense usually occurs in the situation where a trial court’s
discovery order prevents a party from obtaining discovery that could form the basis
of a claim or defense. Id. at 537; see also Savoy, 2020 WL 4726591, at *6
(explaining that denial of reasonable opportunity to develop merits of case generally
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has meant denial of discovery, which goes to heart of party’s case, or sanctions,
which have effect of adjudicating dispute but do not result in rendition of appealable
judgment).
Because section 18.001 does not pertain to the necessary causal link between
the accident and the alleged injuries, in the absence of a section 18.001 counter-
affidavit, a defendant remains free to present evidence that the injuries for which the
plaintiff was treated were not caused by the accident. Parks, 2020 WL 774107, at
*2. The defendant still may make arguments contesting the plaintiff’s affidavits
during opening statements and closing arguments, cross-examine the offering parties
about their injuries and prior medical conditions, and also may introduce
corresponding medical records. Savoy, 2020 WL 4726591, at *6; Parks, 2020 WL
774107, at *2; Flores, 597 S.W.3d at 535. Nothing in section 18.001 requires the
jury to believe the affiant’s testimony. Flores, 597 S.W.3d at 535. Uncontroverted
affidavits are not conclusive evidence of the reasonableness or necessity of the
charges or causation of the corresponding injuries. Savoy, 2020 WL 4726591, at *6;
Flores, 597 S.W.3d at 535. Section 18.001 does not prevent parties whose counter-
affidavits have been erroneously stricken from ultimately prevailing at trial. Flores,
597 S.W.3d at 537.
The striking of a section 18.001 counter-affidavit is similar to the striking or
exclusion of any other expert witness testimony. Parks, 2020 WL 774107, at *2;
see also Flores, 597 S.W.3d at 537 (noting that relators had not offered explanation
regarding how exclusion of counter-affidavit differs from case where erroneous
ruling requires party to go to trial without star witnesses). Typically, challenges to
exclude expert testimony on a particular damage element are reviewed on appeal.
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Parks, 2020 WL 774107, at *2. The ruling excluding the counter-affidavit can be
made part of the trial record and an appellate court can correct any error by reversing
the trial court’s ruling excluding the counter-affidavit. Flores, 597 S.W.3d at 537.
Liberty merely faces the non-unique burden of having to adjust its trial
strategy to accommodate an adverse evidentiary ruling. See id. We conclude Liberty
has an adequate remedy by appeal from the trial court’s order striking Liberty’s
counter-affidavits.1
CONCLUSION
Liberty has not established that it is entitled to mandamus relief. Accordingly,
we deny Liberty’s petition for writ of mandamus.
PER CURIAM
Panel consists of Chief Justice Frost and Justices Wise and Bourliot.
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Because we hold that Liberty has an adequate remedy by appeal, it is not necessary to
address whether the trial court abused its discretion.
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