In re Luna

• Decision Date: 07 November 2016
• Docket Number: NUMBER 13-16-00467-CV
• Parties: IN RE CRYSTAL LUNA
• Court: Texas Court of Appeals

IN RE CRYSTAL LUNA

NUMBER 13-16-00467-CV

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

November 7, 2016

On Petition for Writ of Mandamus.

MEMORANDUM OPINION

Before Justices Rodriguez, Benavides, and Perkes

Memorandum Opinion by Justice Perkes¹

Relator Crystal Luna filed a petition for writ of mandamus in the above cause on August 22, 2016 seeking to compel the trial court to grant the deposition of a representative of the opposing party, State Farm Mutual Automobile Insurance Company(State Farm).² We conditionally grant the petition for writ of mandamus.

I. BACKGROUND

Luna brought suit against Armando Antunez alleging that he was an uninsured, intoxicated driver who caused an automobile accident resulting in her severe personal injuries. Luna further alleged that she was a covered individual under her automobile insurance policy with State Farm, and her policy included uninsured motorist (UM/UIM) coverage.³ As will be described in more detail below, Luna's causes of action regarding the motor vehicle accident have been splintered into three separate trial court cases. In general, these three separate trial court cases, all pending in the County Court at Law Number Three of Nueces County, Texas, consist of: (1) the original lawsuit instituted in 2009 in cause number 09-62091-3, in which Luna brought suit against Antunez and State Farm for personal injuries sustained in the automobile accident and uninsured motorist coverage; (2) a severed lawsuit in cause number 10-60268-3 containing Luna's contractual claims against State Farm; and (3) another severed lawsuit in cause number 2016-CCV-61472-3 containing Luna's extra-contractual claims against State Farm. The original lawsuit in cause number 09-62091-3 was resolved in Luna's favor through a default judgment against Antunez. The lawsuit in cause number 10-60268-3 containing Luna's contractual claims against State Farm remains pending and gives rise to thisoriginal proceeding. The lawsuit containing Luna's extra-contractual claims against State Farm has been abated.⁴

In the original cause number, the parties stipulated that: on the date of the accident at issue in this lawsuit, Luna was a covered person under State Farm's policy number 0925-632-SJC; the State Farm policy was in effect on the date of the accident at issue in this lawsuit; and Antunez did not have a policy of automobile insurance in effect on the date of the accident made the basis of this suit. See TEX. R. CIV. P. 11.

On November 8, 2011, in the original cause number, the trial court granted State Farm's motion to quash Luna's efforts to depose a corporate representative for State Farm. In 2013, Luna filed a motion to compel with regard to the deposition, but did not pursue the motion to hearing or ruling. After the trial court rendered judgment in favor of Luna and against Antunez in 2015, the trial court lifted an abatement of the contractual case against State Farm and the underlying UM/UIM case proceeded. In May 2016, the parties entered into a Rule 11 agreement that "discovery properly conducted" in causenumber 09-62091-3 "is valid" in cause number 10-60268-3 and "[a]ll discovery properly conducted pursuant to the Texas Rules of Civil Procedure under Cause No. 09-62091-3 shall be usable at the trial of Cause No. 10-60268-3." Pursuant to the briefing in this original proceeding, it appears that the parties have treated their stipulation as falling within this agreement. On June 2, 2016, the trial court entered an agreed order which lifted the abatement of cause number 10-60268-3.

In cause number 10-60268-3, on June 6, 2016, Luna contacted State Farm and requested to take the deposition of a corporate representative. Luna's request ultimately led to this petition for writ of mandamus, which relates exclusively to Luna's contractual claims against State Farm under cause number 10-60268-3. State Farm informed her that the trial court had already denied her request for the deposition of a corporate representative by written order on November 15, 2011 in the original cause number. Notwithstanding this, on June 17, 2016, Luna filed a notice of deposition for the corporate representative of State Farm. On June 20, 2016, Luna served an amended notice of deposition for the corporate representative for State Farm. The amended notice requested the deposition of the representative "having the most knowledge regarding the following areas which [are] the basis of this lawsuit" including: (1) the damage sustained by all vehicles involved in the collision at issue; (2) whether Antunez was an uninsured motorist at the time of the collision; (3) whether Antunez was driving an uninsured vehicle at the time of the collision; (4) State Farm's contention that Fred Ochoa Sr. was a responsible third party with regard to this collision; (5) State Farm's contention that Luna "has failed to comply with all conditions precedent to recovery, including the failure to obtain a legal determination of the existence and amount of liability, if any, of the owneror operator of the allegedly uninsured motor vehicle"; (6) whether the term "uninsured motor vehicle" is correctly defined in the State Farm insurance policy at issue in this lawsuit; (7) State Farm's claims and defenses regarding Luna's assertions in this lawsuit; (8) State Farm's contention that it is entitled to "credit and offset" for the personal injury protection (PIP) benefits in the amount of $5,000 paid to Luna as a result of the accident; (9) State Farm's contention that it is "entitled to offsets, including any recovery by [Luna] from other parties or their insurance carriers"; (10) State Farm's contention that Luna's "recovery of medical or health care expenses incurred is limited to the amount actually paid or incurred by or on behalf of the claimant"; (11) State Farm's contention that "the claim for punitive damages is subject to statutory and constitutional limitations, including, without limitation, TCPRC 41.008"; (12) State Farm's contention that it "generally denies [Luna's] allegations"; and (13) State Farm's contention that it "does not believe [Luna] is entitled to recover damages in the amount sought."

State Farm filed a motion to quash Luna's amended notice for a corporate representative deposition arguing that the notice was "improper, harassing, [and] prepared solely to abuse State Farm." State Farm asserted that "the Court had already ruled that [Luna] is not entitled to the deposition of a State Farm corporate representative on the requested topics." State Farm also argued that:

Further, the burden and expense of the proposed deposition outweighs its likely benefit to Plaintiff, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake, and the importance of the proposed discovery. See TEX. R. CIV. P. 192.4. The information Plaintiff seeks in this deposition is either not relevant to the issues that are live in this case, or State Farm has no personal knowledge of them. Regardless, the proposed deposition would provide little to no benefit to Plaintiff and be very costly to both parties. There is no case in which a defendant has been ordered to provide this typeof deposition in which evidence of the burden and expense outweighing the benefit has been offered.

Finally, State Farm asserted that the specific subjects for testimony detailed in the amended notice of deposition were improper on various grounds, including, inter alia, State Farm's lack of personal knowledge and the attorney client and work product privileges. State Farm further argued that several of the issues were rendered unnecessary by the stipulations that it had made to the effect that Antunez did not have an automobile insurance policy in effect on the date of the accident and that Luna's policy with State Farm was in effect at the time of the accident.

The trial court held a hearing on the motion to quash on July 21, 2016. Counsel for State Farm testified that it would cost $10,000 to present a corporate representative for deposition.

In order to identify the representative to correspond to the various topics, we're going to have to visit with the corporate structure, go through everybody [who's] looked at the file, go through everybody whose currently available, and then visit amongst the lawyers about who can testify to which topic. That process takes approximately an entire day, because it's [a] large company, with tens of thousands [of] employees.

After that is completely [done], we then have to get the proper corporate trainer attorney to find the people—person or people that we need, visit with them in person to prepare them for the deposition, that process takes two days, because they have to go over every policy that's potentially applicable to this situation, because there's no certainty as to what the questions in the deposition are going to be. The third step is, the witness will have to be prepared for the deposition by the lawyers in this case, that's another two days in this type of deposition.

So now we've spent an entire week. First day was probably a short day, four/five hours. The other days are going to be eight hour days. Then we have to do the deposition. Presenting the witness for the deposition. I've never seen a corporate representative take under two hours, most [of] the time it goes for the maximum of six. When you figure out the rate of the various lawyers involved, there's not going to be a lawyer involved at less than $200 dollars an hour. So even if you assume on a very reasonablebasis that you're talking about 40 hour[s] worth of time, $200 an hour, and you add the cost of the deposition, you've now gotten to $10,000. If you have any more time necessary, if you have any special project, if you have any travel, there are no corporate trainers—corporate trainer lawyers in Corpus Christi. They would all have to travel out from out of town. The closest one

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