                                                                                ACCEPTED
                                                                            12-15-00277-CV
                                                               TWELFTH COURT OF APPEALS
                                                                             TYLER, TEXAS
                                                                      11/16/2015 5:51:19 PM
                                                                                  Pam Estes
                                                                                     CLERK

                    Case Number 12-15-__________-CV

          IN THE TWELFTH DISTRICT COURT OF APPEALS        FILED IN
                                                   12th COURT OF APPEALS
                             AT TYLER                   TYLER, TEXAS
__________________________________________________________________
                                                   11/16/2015 5:51:19 PM
                                                          PAM ESTES
                                                            Clerk
   IN Re AAA TEXAS COUNTY MUTUAL INSURANCE COMPANY
__________________________________________________________________

        Original Proceeding from the 188th Judicial District Court
                         Of Gregg County, Texas
                 Trial Court Cause Number 2014-1365-A
__________________________________________________________________

     RELATOR AAA TEXAS COUNTY MUTUAL INSURANCE COMPANY’S
            EMERGENCY MOTION FOR TEMPORARY RELIEF


                                  WALTERS, BALIDO & CRAIN, L.L.P.
                                                       Gregory R. Ave
                                                State Bar No. 01448900
                                           greg.ave@wbclawfirm.com
                                       Meadow Park Tower, Suite 1500
                                      10440 North Central Expressway
                                                   Dallas, Texas 75231
                                     Telephone Number (214) 347-8310
                                      Facsimile Number (214) 347-8311

                                      ATTORNEYS FOR RELATOR
                                      AAA TEXAS COUNTY MUTUAL
November 16, 2015                     INSURANCE COMPANY
                   Case Number 12-15-__________-CV

          IN THE TWELFTH DISTRICT COURT OF APPEALS
                             AT TYLER
__________________________________________________________________

   IN Re AAA TEXAS COUNTY MUTUAL INSURANCE COMPANY
__________________________________________________________________

        Original Proceeding from the 188th Judicial District Court
                         Of Gregg County, Texas
                 Trial Court Cause Number 2014-1365-A
__________________________________________________________________

     RELATOR AAA TEXAS COUNTY MUTUAL INSURANCE COMPANY’S
            EMERGENCY MOTION FOR TEMPORARY RELIEF


TO THE HONORABLE TYLER COURT OF APPEALS:

     Pursuant to Texas Rule of Appellate Procedure 52.10(a), Relator AAA

Texas County Mutual Insurance Company (“AAA”) moves the Court for

an emergency stay of the trial court’s order compelling AAA to respond to

certain discovery requests propounded on AAA by Plaintiff and Real Party

in Interest Thomas Jackson (“Jackson”) regarding his extra-contractual

claims prior to a determination of his claim for underinsured motorist

(“UIM”) benefits, while AAA pursues an original proceeding from the trial

court’s orders denying AAA’s motion to sever and abate those extra-

contractual claims and compelling discovery, and show:


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      AAA is the defendant in the underlying action and Jackson is the

plaintiff. Respondent is the Honorable David Brabham, Presiding Judge of

the 188th Judicial District Court of Gregg County, Texas (“the trial court”).

      AAA files this Motion concurrently with their Petition for Writ of

Mandamus. All “MR __” references herein are to the indicated Tab of the

Verified Mandamus Record, with page numbers of the electronically filed

document.    AAA’s counsel has attached a certificate of compliance to

certify that Jackson and the trial court have been notified by telephone,

facsimile, eServe, or hand delivery that a motion for temporary relief

would be filed. TEX. R. APP. P. 52.10.

      Jackson sued AAA seeking to recover UIM benefits for injuries he

allegedly sustained as a result of a motor vehicle accident involving a

vehicle driven by Patricia Tompkins (“Tompkins”). [MR 6-14.] As a result

of the accident, Jackson submitted a claim to AAA for UIM benefits. [MR

1.] After evaluating Jackson’s claim, AAA offered Jackson $20,000.00 to

fully and finally settle any and all claims of Jackson for UIM benefits,

which was in addition to the $5,000.00 in personal injury protection (“PIP”)

benefits previously paid to Jackson by AAA, and the $30,000.00 he received




                                         2
from Tompkins.      [Id.]   Jackson rejected AAA’s settlement offer and

instituted the underlying lawsuit against AAA. [MR 2-3.]

     In his second amended petition (i.e., the live pleading), Jackson seeks

UIM benefits under a Texas personal automobile policy number TPA-

016443353 issued by AAA to Jackson (“the policy”), as well as damages for

breach of contract, purported breach of the common law duty of good faith

and fair dealing, violations of the Texas Insurance Code, violations of the

Texas Deceptive Trade Practices Act (“DTPA”), and attorneys’ fees based

on his misguided request for declaratory relief under Chapter 37 of the

Texas Civil Practice and Remedies Code. [MR 6-14.] AAA’s alleged breach

of contract, common law bad faith, and statutory violations are, solely

based on Jackson’s demand AAA pay him the $20,000.00 previously

offered by AAA, and previously rejected by Jackson – but without any

settlement or finality of Jackson’s claims against AAA. In essence, it is the

contention of Jackson that AAA has breached the policy and acted in bad

faith by not funding Jackson’s UIM lawsuit against AAA (i.e., paying the

$20,000.00 offered by AAA and rejected by Jackson) – all before Jackson

obtains a legal determination of Tompkins’ liability, the amount of his

actual damages, and that such damages exceed the $5,000.00 in PIP and

                                     3
$30,000.00 in liability limits previously paid to Jackson, or the full limit of

liability available under Tompkins’ personal auto policy (whichever is

greater). [Id.]

      On January 19, 2015, AAA filed its motion to sever and abate

Jackson’s extra-contractual claims, pending a fully adversarial trial to

determine the liability or fault of Tompkins in causing the accident with

Jackson, the amount of his actual damages, and a determination as to

whether Jackson’s actual damages exceed the $35,000.00 he has already

received or the limits of liability in Tompkins’ auto policy (whichever is

greater) (the “Motion”).        [MR 66-80.]      After various procedural

machinations, exchange of discovery, and a motion to compel filed by

Jackson, on October 6, 2015 AAA notified Jackson that the trial court had

set the hearing on its motion to sever and abate for November 6, 2015. [MR

127.] Jackson filed his response to the Motion on the day prior to the

hearing, November 5, 2015. [MR 128.] The trial court held the hearing on

the Motion and on the same day, November 6, 2015, signed an order

DENYING the Motion in its entirety, holding that Jackson’s “extra-

contractual claim will not be severed from the underlying contract claim

and the extra-contractual claims are not abated” – which necessarily

                                      4
includes discovery into same – and ordering that “trial shall be bifurcated

as to [Jackson’s] extra-contractual claims.” [MR 138.]

     On the same day, the trial court entered an order on Jackson’s motion

to compel discovery responses from AAA wherein the trial court judicially

determined:

           &     the following requests are related to the
                 incident underlying the suit, [Jackson’s]
                 claims for breach of contract and/or
                 [Jackson’s] claims for declaratory judgment:

                 [Jackson’s] Request for Admission No. 18;
                 [Jackson’s] Interrogatories Nos. 1, 2,4,5, 7, 9,
                 10, 11, 12, 13, 15, and 20; [Jackson’s] Requests
                 for Production Nos. 2, 3, 4, 5, 7, 9, 10, 11, 12,
                 13, 15, 16, 17, 18, 25, and 29; and [Jackson’s]
                 Request for Production No. 34, to the extent it
                 pertains to these immediately aforementioned
                 discovery requests. It is, therefore, ORDERED
                 that [AAA] shall fully respond to these
                 requests and interrogatories and produce all
                 responsive information and documents . . .

           &     the following requests are related to the
                 [Jackson’s] extra-contractual claims:

                 [Jackson’s] Request for Admission No. 17;
                 [Jackson’s] Interrogatories Nos. 3, 6, 8, 14, 16,
                 17, 18, and 19; [Jackson’s] Requests for
                 Production Nos. 1, 6, 8, 14, 19, 20, 21, 22, 23,
                 24, 26, 27, 28, 30, 31, 32, and 33; and
                 [Jackson’s] Request for Production No. 34, to
                 the extent it pertains to these immediately

                                     5
                   aforementioned discovery requests. It is,
                   therefore, ORDERED that [AAA] shall fully
                   respond to these requests and interrogatories
                   and produce all responsive information and
                   documents . . .

[MR 135-37.]

     As asserted in AAA’s Petition For Writ Of Mandamus, the trial court’s

order denying AAA’s request to sever and abate the extra-contractual

claims violates well established Texas law which requires a trial court both

sever and abate extra-contractual claims until such time as Jackson

establish he is legally entitled to recover UIM benefits and the insurer

subsequently failed to pay same. That is, unless and until Jackson obtains a

final judgment establishing the liability and underinsured status of

Tompkins, AAA has no contractual obligation to pay UIM benefits to him.

In this situation, a trial court is unquestionably required to both sever and

abate the extra-contractual claims; otherwise, AAA is subjected to manifest

injustice, prejudice, and irreparable harm.

     As fully set forth in AAA’s petition, the trial court abused its

discretion in denying AAA’s motion to abate discovery as to Jackson’s

extra-contractual claims and by compelling AAA to engage in discovery

related to same.     In this regard, the trial court’s actions are in direct

                                      6
contravention of well-established precedent from this Court, the Texas

Supreme Court, and other Texas courts of appeals. Finally, AAA has no

adequate remedy by appeal from such abuse.

     This Court may grant temporary relief pending the determination of

an original proceeding. TEX. R. APP. P. 52.10(a). AAA seeks an emergency

stay, because the trial court’s failure to abate Jackson’s extra-contractual

claims (and potential discovery related thereto) now requires AAA to

produce documents, information, and answers to discovery which do not

relate to the only issues which are ripe for determination – the legal

liability of Tompkins, the amount of actual damages sustained by Jackson,

and whether Tompkins is in fact an underinsured motorist. Temporary

relief will prevent a waste of resources and preserve the status quo, while

allowing the Court the proper time to review the merits of AAA’s

mandamus petition.

                                  PRAYER

     WHEREFORE PREMISES CONSIDERED, Relator AAA Texas

County Mutual Insurance Company respectfully prays this Court stay the

trial court’s November 6, 2015 order compelling AAA to respond to

discovery propounded by Jackson which relate to his extra-contractual


                                    7
claims and which do not go to the issues delineated supra, and a stay of all

further trial court proceedings in this matter until such time as this Court

can review the merits and issue its opinion, and for general relief.

                                    Respectfully submitted,

                                    WALTERS, BALIDO & CRAIN, L.L.P.


                                    BY:      /s/ Gregory R. Ave
                                          GREGORY R. AVE
                                          Texas Bar No.: 01448900
                                          greg.ave@wbclawfirm.com
                                          JAY R. HARRIS
                                          Texas Bar No.: 00793907
                                          Meadow Park Tower, Suite 1500
                                          10440 North Central Expressway
                                          Dallas, Texas 75231
                                          Telephone: 214-347-8310
                                          Facsimile: 214-347-8311

                                    ATTORNEYS FOR AAA TEXAS COUNTY
                                    MUTUAL INSURANCE COMPANY




                                      8
                       CERTIFICATE OF SERVICE

      This is to certify that on this the 16th day of November, 2015 a true
and correct copy of the above document has been forwarded to all counsel
of record in compliance with the Texas Rules of Civil Procedure.

The Honorable Judge David Brabham                    Via hand delivery
Judge of the 188th Judicial District Court of Gregg County, Texas
Gregg County Courthouse
101 East Methvin, Suite 408
Longview, Texas 75601

Justin A. Smith                                         Via E-Serve
Glenn A. Perry
Sloan, Bagley, Hatcher & Perry Law Firm
101 East Whaley Street
Longview, Texas 75601

ATTORNEYS FOR REAL PARTY
IN INTEREST THOMAS JACKSON


                                         /s/ Gregory R. Ave
                                           GREGORY R. AVE


                         Certificate of Conference

      Pursuant to Texas Rule of Appellate Procedure 10, I hereby certify
that we contacted counsel for Jackson regarding the filing of this motion for
temporary relief. Counsel for Real-Party-In-Interest is opposed.

                                         /s/ Gregory R. Ave
                                           GREGORY R. AVE




                                     9
                        Certificate of Compliance

      Pursuant to TEX. R. APP. P. 52.10(a), I hereby certify that Respondent
and counsel of record for Real-Party-in-Interest were notified that AAA is
seeking a temporary stay through this motion while its Writ of Mandamus
is under consideration.

                                     /s/ Gregory R. Ave
                                       GREGORY R. AVE




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