                                                                                      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
