In re Garrison Prop. & Cas. Ins. Co.

• Decision Date: 21 October 2020
• Docket Number: NO. 12-20-00190-CV,12-20-00190-CV
• Court: Texas Court of Appeals
• Parties: IN RE: GARRISON PROPERTY & CASUALTY INSURANCE COMPANY, RELATOR

IN RE: GARRISON PROPERTY & CASUALTY INSURANCE COMPANY, RELATOR

NO. 12-20-00190-CV

COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS

October 21, 2020

ORIGINAL PROCEEDING

MEMORANDUM OPINION

In this original proceeding, Garrison Property and Casualty Insurance Company seeks mandamus relief from the trial court's August 4, 2020 order directing Garrison to produce its corporate representative for deposition.¹ We deny in part and conditionally grant in part.

BACKGROUND

The underlying suit arises out of a car accident that occurred in August 2019. Julia Davis and Nancy Wise were injured when their vehicle (owned by Amy Calhoun) was struck by a vehicle driven by Zina Hardy. Following the accident, Davis and Wise filed suit against Hardy for negligence and against Union Insurance Company and Garrison for underinsured motorist benefits. Davis and Wise subsequently settled with Hardy and her insurance provider for her policy limits and with Union for $275,000 of its $300,000 policy limit. The remaining claim against Garrison is a declaratory judgment action alleging that Davis's claim for UIM benefits is covered under the policy, that Hardy's negligence caused her damages, and that she is entitled to recover UIM benefits from Garrison.

In May 2020, Davis requested a date to take the deposition of Garrison's corporate representative on thirteen topics. Garrison did not agree to produce a representative fordeposition and filed a motion to quash. In June, Garrison filed the following "unilateral stipulations"² and requested they not be read to the jury:

1. Plaintiff JULIA ROXANNE DAVIS was involved in a motor vehicle accident on August 7, 2019 at or near 3400 S Loop 256, Anderson County, Texas (hereafter "the accident.")[.]

2. At the time of the accident, JULIA ROXANNE DAVIS was a scheduled "Operator" and "covered person" under a Colorado Auto Policy Number 02699 71 35R 7101 4, (hereafter "the Insurance Policy") with GARRISON.

3. At the time of the accident, the Insurance Policy was in force and in effect.

4. At the time of the accident, JULIA ROXANNE DAVIS had paid all applicable premiums for the Insurance Policy including premiums for Uninsured/Underinsured Bodily Injury motorist benefits.

5. At the time of the accident, the Insurance Policy contained coverage for:

a. Medical Payments Coverage in the amount of $5,000.00; and

b. Uninsured/Underinsured Motorist Bodily Injury coverage in the amount $300,000.00 each person and $500,000.00 each accident.

6. At the time of the accident, The Insurance Policy with Defendant GARRISON contained coverage for Uninsured/Underinsured Motorist Bodily Injury benefits. The policy is attached as Exhibit A.

7. The insurance of which GARRISON is presently aware that may provide coverage to pay for JULIA ROXANNE DAVIS's bodily injury claims and damages as a result of the accident is:

a. A liability insurance policy with Allstate Insurance Company (policy number 844676267), which provides $30,000.00 in Liability - Bodily Injury coverage;

b. An Uninsured/Underinsured Motorist Coverage from Union Insurance Company, which provides $300,000.00 in Bodily Injury coverage; and

c. The Insurance Policy with GARRISON.

8. GARRISON granted JULIA ROXANNE DAVIS consent to settle with ZINA HARDY for the policy limits of $30,000.00 of the Allstate Insurance Company policy.

9. JULIA ROXANNE DAVIS has complied with all of her duties under the Insurance Policy in making an underinsured motorist claim with GARRISON arising from the accident other than the requirement that she prove that the amount of any compensatory damages she is legally entitled to recover exceeds the amount of ZINA HARDY'S available liability coverage and applicable OTHER INSURANCE for uninsured/underinsured coverage as set forth in Part C of the Insurance Policy. See also Brainard v. Trinity Universal Ins. Co., 216 S.W.3d 809, 818 (Tex. 2006).

10. The negligence of ZINA HARDY was the sole proximate cause of the accident.

The trial court held a hearing in June and took the motion to quash under advisement. Davis filed a second motion to compel in July seeking the deposition of a corporate representative on nine topics. At the hearing, Garrison represented that it was only contesting damages and underinsured motorist status.³ The trial court granted the second motion to compel and ordered the deposition of Garrison's corporate representative on the nine topics requested by Davis:

A. All information known by Garrison regarding whether Zina Hardy was an underinsured driver at the time of the collision at issue in this lawsuit.

B. All information known by Garrison regarding whether Zina Hardy was driving an underinsured vehicle at the time of the collision in this lawsuit.

C. All information known by Garrison regarding Garrison's contention that Garrison does not believe Plaintiff is entitled to recover damages in the amount sought by the Plaintiff.

D. All information known by Garrison that Plaintiff's claims are covered claims under the Garrison Policy with Plaintiff.

E. All information about whether the bodily injury claims of Plaintiff are covered under the Garrison policy, which include:

a. past and future medical expenses;

b. past and future physical pain;

c. past and future mental anguish;

d. past and future physical impairment;

e. past and future disfigurement;

f. past and future loss of household services; and

g. past and future loss of consortium.

F. All information about whether the injuries of Plaintiff are the result of the accident with Zina Hardy, which include:

a. Contusions.

b. Cervical Sprain.

c. Head injury.

d. Muscle cramps.

e. Spasms.

f. Vertigo[.]

g. Dizziness[.]

h. Post-concussive syndrome[.]

G. All information about whether the injuries of Plaintiff are permanent in nature and will, in reasonable probability, continue to suffer such injuries and damages in the future.

H. All information about whether the bodily injuries sustained by Plaintiff as a result of the accident have required reasonable and necessary medical treatment.

I. All information about Plaintiff's loss of consortium claims regarding her mother, Nancy Wise, about whether Defendant contends Wise was involved in the accident, the loss of relationship/society/consortium in the past and future; and loss of household services in the past and future.

This proceeding followed, in which Garrison contends that the trial court abused its discretion by ordering Garrison to produce its corporate representative for deposition and it does not have an adequate remedy by appeal.

PREREQUISITES TO MANDAMUS

Ordinarily, to be entitled to a writ of mandamus, relators must show that the trial court clearly abused its discretion, and that they lack 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 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). In evaluating benefits and detriments, we consider whether mandamus will preserve important substantive and procedural rights from impairment or loss. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004) (orig. proceeding). We also consider whether mandamus will "allow the appellate courts to give needed and helpful direction to the law that would otherwise prove elusive in appeals from final judgments." Id. Finally, we consider whether mandamus will spare the litigants and the public "the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings." Id. Appeal is not an adequate remedy when the appellate court would not be able to cure the trial court's discovery error on appeal. In re Dana Corp., 138 S.W.3d 298, 301 (Tex. 2004) (orig. proceeding) (per curiam); In re Ford Motor Co., 988 S.W.2d 714, 721 (Tex. 1998) (orig. proceeding).

ABUSE OF DISCRETION

Garrison asserts that the trial court abused its discretion because the relevant issues are not within Garrison's personal knowledge, requiring Garrison to produce a corporate representative would be unduly burdensome, and the requested discovery is available via more convenient and less expensive means.

Applicable Law

A trial court generally has discretion to determine the scope of discovery. In re Nat'l Lloyds Ins. Co., 532 S.W.3d 794, 802 (Tex. 2017) (orig. proceeding). "Our procedural rules define the general scope of discovery as any unprivileged information that is relevant to the subject of the action, even if it would be inadmissible at trial, as long as the information sought is reasonably calculated to lead to the discovery of admissible evidence." In re Nat'l Lloyds Ins. Co., 507 S.W.3d 219, 223 (Tex. 2016) (orig. proceeding) (per curiam) (internal quotation marks and citations omitted). Information is relevant if it tends to make the existence of a fact that is of consequence to the determination of the action more or less probable than it would be without the information. TEX. R. EVID. 401. The phrase "relevant to the subject matter" is to be broadly construed. In re Nat'l Lloyds Ins. Co., 449 S.W.3d 486, 488 (Tex. 2014) (orig. proceeding) (per curiam). Discovery requests must be reasonably tailored to include only matters relevant to the case. In re Am. Optical Corp., 988...