Opinion issued June 12, 2014




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                           ————————————
                              NO. 01-14-00199-CV
                           ———————————
  IN RE PROGRESSIVE COUNTY MUTUAL INSURANCE COMPANY,
                         Relator



            Original Proceeding on Petition for Writ of Mandamus


                                  OPINION

      Relator, Progressive County Mutual Insurance Company seeks a writ of
mandamus compelling the trial court to (1) vacate its order denying Progressive’s
motion to sever extra-contractual claims asserted against it and (2) enter an order
abating those extra-contractual claims until the breach-of-contract claim brought
by Alma Guia, the real party in interest, has been resolved. We conditionally grant
the writ.
                                    Background

      Following an automobile collision with an uninsured motorist’s vehicle,

Guia sued her insurer, Progressive.1      While investigation into the claim was

ongoing, Guia sued Progressive for breach of the uninsured motorist provisions in

her policy, violations of Chapter 542 of the Texas Insurance Code, violations of the

Deceptive Trade Practices-Consumer Protection Act, and breach of the duty of

good faith and fair dealing. Guia served Progressive with a number of discovery

requests, some of which would not be relevant to the breach-of-contract claim.

Progressive filed a motion to sever the breach of contract claim for uninsured

motorist coverage from the extra-contractual claims. The trial court judge signed

an order abating the motion to sever, allowing discovery to move forward on all

claims, and deferring the other issues covered by the motion until the pretrial

hearing. Progressive filed a writ seeking to compel severance and abatement.

                                   Standard of Review

      We may issue a writ of mandamus to correct a trial court’s clear abuse of

discretion or violation of duty imposed by law when no adequate remedy by appeal

exists. See Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding).

A clear abuse of discretion occurs when the trial court’s decision is so arbitrary and

1
      The underlying case is Alma Guia v. Jessica Nicole Estes, Relinda Estes,
      Progressive Insurance Company and Progressive County Mutual Insurance
      Company; No. 2012-57535, in the 215th District Court of Harris County, Texas,
      the Honorable Elaine H. Palmer presiding.

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unreasonable that it amounts to clear error. See id. (quoting Johnson v. Fourth

Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985)). Because a trial court has no

discretion in determining what the law is, the trial court abuses its discretion if it

clearly fails to analyze or apply the law correctly. See id. at 840. “In determining

whether appeal is an adequate remedy, [we] consider whether the benefits

outweigh the detriments of mandamus review.” In re BP Prods. N. Am., Inc., 244

S.W.3d 840, 845 (Tex. 2008) (orig. proceeding).

      The trial court has “broad” discretion in the severance of causes of action.

Morgan v. Compugraphic Corp., 675 S.W.2d 729, 734 (Tex. 1984); Black v.

Smith, 956 S.W.2d 72, 75 (Tex. App.—Houston [14th Dist.] 1997, orig.

proceeding). However, that discretion is not unlimited. See U.S. Fire Ins. Co. v.

Millard, 847 S.W.2d 668, 671 (Tex. App.—Houston [1st Dist.] 1993, orig.

proceeding). The trial court has a duty to order severance when “all of the facts

and circumstances of the case unquestionably require a separate trial to prevent

manifest injustice, and there is no fact or circumstance supporting or tending to

support a contrary conclusion, and the legal rights of the parties will not be

prejudiced thereby.” Womack v. Berry, 156 Tex. 44, 291 S.W.2d 677, 682–83

(Tex. 1956) (orig. proceeding).


           Severance of Contractual and Extra-Contractual Claims




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      Texas Rule of Civil Procedure 41 governs severance of claims. See TEX. R.

CIV. P. 41. The rule provides, in part, that “[a]ctions which have been improperly

joined may be severed . . . on such terms as are just. Any claim against a party

may be severed and proceeded with separately.” Id. The predominant reasons for a

severance are to do justice, avoid prejudice, and promote convenience. F.F.P. Op.

Partners, L.P. v. Duenez, 237 S.W.3d 680, 693 (Tex. 2007). Claims are properly

severable if: (1) the controversy involves more than one cause of action; (2) the

severed claim is one that would be the proper subject of a lawsuit if independently

asserted; and (3) the severed claim is not so interwoven with the remaining action

that it involves the same facts and issues. Guar. Fed. Sav. Bank v. Horseshoe

Operating Co., 793 S.W.2d 652, 658 (Tex. 1990). Only the third element is in

dispute here.

      In Liberty National Fire Insurance Co. v. Akin, the Texas Supreme Court

considered whether severance was required in a case involving breach of contract

and extra-contractual claims against an insurer under a homeowner’s policy. 927

S.W.2d 627 (Tex. 1996). In refusing to grant mandamus relief, the Court rejected

“an inflexible rule that would deny the trial court all discretion and . . . require

severance in every case [involving bad-faith insurance claims], regardless of the

likelihood of prejudice.” Id. at 630. Ultimately, the Court concluded that the

contractual and extra-contractual claims in that case were interwoven, with most



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evidence admissible on both claims, and that any prejudicial effect could be

ameliorated by appropriate limiting instructions. See id. The Court went on to

add:

       Several Texas appellate courts have found severance may nevertheless
       be necessary in some bad faith cases. A trial court will undoubtedly
       confront instances in which evidence admissible only on the bad faith
       claim would prejudice the insurer to such an extent that a fair trial on
       the contract claim would become unlikely. One example would be
       when the insurer has made a settlement offer on the disputed contract
       claim. As we have noted, some courts have concluded that the insurer
       would be unfairly prejudiced by having to defend the contract claim at
       the same time and before the same jury that would consider evidence
       that the insurer had offered to settle the entire dispute. While we
       concur with these decisions, we hasten to add that evidence of this
       sort simply does not exist in this case. In the absence of a settlement
       offer on the entire contract claim, or other compelling circumstances,
       severance is not required.


Id. (internal citations omitted); see also In re Miller, 202 S.W.3d 922, 925–26

(Tex. App.—Tyler 2006, orig. proceeding [mand. denied]); In re Trinity Universal

Ins. Co., 64 S.W.3d 463, 468 (Tex. App.—Amarillo 2001, orig. proceeding [mand.

denied]).   Thus, in Liberty National, the Court opined a settlement offer by an

insurer may create a situation where severance of an insured’s contract claim is

required. 927 S.W.2d at 630 (Tex. 1996).

       There is no evidence in the record that Progressive made a settlement offer

to Guia. However, Liberty National does not limit severance to cases where such

an offer has been made, instead holding that “other compelling circumstances”



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may also require severance. Id. In the case before us, Progressive argues that

“other compelling circumstances” should include the effort and cost associated

with conducting discovery on extra-contractual claims that have not yet accrued

because the insured’s breach-of-contract claim has not yet been decided.

      Several courts of appeals have considered the issues of severance and

abatement in the context of uninsured motorist or underinsured motorist insurance

coverage; these courts have concluded that, when uninsured motorist claims are

involved, severance of the extra-contractual claims was required.   See In re Am.

Nat’l Cnty. Mut. Ins. Co., 384 S.W.3d 429 (Tex. App.—Austin 2012, orig.

proceeding) (concluding trial court abused discretion by denying insurer’s motion

for severance and abatement of extra-contractual claims where settlement offer was

made on underinsured motorist claim); In re Reynolds, 369 S.W.3d 638, 650–55

(Tex. App.—Tyler 2012, orig. proceeding) (holding severance of underinsured

motorist claim was required to prevent prejudice); In re United Fire Lloyds, 327

S.W.3d 250, 257 (Tex. App.—San Antonio 2010, orig. proceeding) (finding abuse

of discretion in granting motion for bifurcation of trial rather than severance and

abatement of extra-contractual claims); see also In re Old Am. Cnty. Mut. Fire Ins.

Co., No. 13-12-00700-CV, 2013 WL 398866 (Tex. App.—Corpus Christi January

30, 2013, orig. proceeding) (mem. op.) (holding that severance and abatement of

extra-contractual claims is required in many instances when insured asserts claim



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to uninsured or underinsured motorist benefits); In re Farmers Tex. Cnty. Mut. Ins.

Co., No. 07–11–00396–CV, 2011 WL 4916303, (Tex. App.—Amarillo Oct. 17,

2011, orig. proceeding) (mem. op.) (denying mandamus because complaint was

not preserved, but agreeing that abatement of extra-contractual claims is required

in most instances when an insured asserts claim to uninsured motorist benefits).

      The San Antonio Court of Appeals explained its determination that

mandamus relief was proper to compel severance and abatement of an

underinsured motorist claim from related bad faith claims as follows:

      [The insurer] is under no contractual duty to pay [underinsured
      motorist] benefits until [the insured] establishes the liability and
      underinsured status of the other motorist. Therefore, [the insurer]
      should not be required to put forth the effort and expense of
      conducting discovery, preparing for a trial, and conducting voir dire
      on bad faith claims that could be rendered moot by the portion of the
      trial relating to [underinsured motorist] benefits. To require such
      would not do justice, avoid prejudice, and further convenience. Under
      these circumstances, we conclude the trial court abused its discretion
      in bifurcating the case instead of severing and abating the
      [underinsured motorist] claim from the bad faith claims.

In re United Fire Lloyds, 327 S.W.3d at 256.2



2
       The court relied on the Texas Supreme Court’s reasoning in Brainard v.
Trinity Universal Insurance Co., 216 S.W.3d 809 (Tex. 2006), but acknowledged
that Brainard concerned timing of presentment of contract claim to determine
whether party was entitled to attorney’s fees under Chapter 38 of Texas Civil
Practice and Remedies Code, rather than severance and abatement in the context of
uninsured motorist claim. See In re United Fire Lloyds, 327 S.W.3d 250, 257 (Tex.
App.—San Antonio 2010, orig. proceeding) (discussing Brainard, 216 S.W.3d at
818).

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      In this case, to prevail on her extra-contractual claims against Progressive,

Guia must demonstrate that Progressive was contractually obligated to pay her

uninsured motorist claim. To do this, Guia must first prove that she had uninsured

motorist coverage, that the other driver negligently caused the accident and was

uninsured, and the amount of her damages. See In re Reynolds, 369 S.W.3d at 652.

It appears that the first issue is not in dispute. Therefore, Guia’s breach-of-contract

claim will essentially involve the issues in a typical car wreck: the comparative

negligence of Guia and the other driver and Guia’s damages. The bad faith claim

here is more complicated. In her most recent petition, she alleges that Progressive

breached their duty of good faith and fair dealing, violated the insurance code by

failing to timely pay the claim, and further alleges Progressive’s conduct was

knowing and intentional in violation of the Deceptive Trade Practices Act. In

discovery, Guia seeks production of all documents related to lawsuits and claims

against Progressive regarding the denial of uninsured/underinsured motorist claims

for over ten years. Examples of these requests include:

      Request 3. Produce all documents of any type as to claims asserted
      against Progressive during period from January 1, 2001, up to and
      including present day as a result of nonpayment of
      uninsured/underinsured motorist claims in Texas regardless of
      whether a lawsuit was filed and/or liability was denied.

      Request 4. Produce all documents of any type as to all lawsuits filed
      against Progressive during period from January 1, 2001, up to and
      including present day, as a result of nonpayment of



                                          8
      uninsured/underinsured motorist claims in Texas regardless of
      whether liability was denied.

      ...

      Request 16. A copy of each and every policy, manual, protocol,
      instruction booklet or similar writing concerning procedures for the
      investigation and handling of uninsured/underinsured motorist claim
      which was in effect at the time Plaintiff made her claims in this case,
      and for the seven years preceding Progressive’s denial of Plaintiff’s
      claim.

These requested documents are irrelevant to the breach-of-contract claim, and the

introduction of Progressive’s claims handling history in unrelated accidents at the

trial of Guia’s breach-of-contract claim would be manifestly unjust. See Womack

v. Berry, 291 S.W.2d at 682–83 (Tex. 1956) (orig. proceeding).

      The trial court’s abatement of any decision on severance until the eve of trial

requires the parties to engage in discovery on the extra-contractual claims and

prepare for a trial on these claims, even though extra-contractual liability could

only accrue if Progressive is found liable on the contract. See In re United Fire

Lloyds, 327 S.W.3d at 256. Accordingly, the trial court’s decision to postpone

severance, unless writ is granted, will require Progressive to expend resources

answering discovery that is far broader than the car accident claim that must be

resolved.




                                         9
      Consistent with In re Reynolds and In re United Fire Lloyds, we conclude

that severance of insured’s extra-contractual claims is required in this instance to

avoid prejudice.

                          Adequate Remedy by Appeal

      A writ of mandamus will issue only if there is no adequate remedy available

by direct appeal. See Walker, 827 S.W.2d at 839. The Corpus Christi Court of

Appeals in In re United Fire Lloyds concluded the insurer did not have an adequate

remedy by appeal because, if a writ of mandamus were not granted, the insurer

stood to lose substantial rights by being required to prepare for claims that might

be rendered moot and never even accrue. In re Fire Lloyds, 327 S.W. 3d at 256

(citing U.S. Fire Ins. Co., 847 S.W.2d at 675; In re Trinity Universal Ins. Co., 64

S.W.3d at 468).

      The Corpus Christi Court of Appeals agreed. See In re Old Am. Cnty. Mut.

Fire Ins. Co., 2013 WL 398866. Likewise, other appellate courts have also found

these claims do not have an adequate remedy by appeal. See In re Am. Nat’l Cnty.

Mut. Ins. Co., 384 S.W.3d 429, 439; In re Reynolds, 369 S.W.3d at 658; In re

United Fire Lloyds, 327 S.W.3d at 256.

                                    Conclusion

      Based on our review of the record, we conclude that Guia’s extra-contractual

claims against Progressive are severable, the facts and circumstances of the case



                                         10
require a severance to prevent manifest injustice, and the legal rights of the parties

will not be prejudiced thereby. See Womack, 291 S.W.2d at 683. The trial court,

therefore, abused its discretion in refusing to sever and abate the uninsured

motorist claims from the bad faith claims pending the determination of

Progressive’s liability for the uninsured motorist damages under the policy. See In

re Am. Nat’l Cnty. Mut. Ins. Co., 384 S.W.3d 429; In re Reynolds, 369 S.W.3d at

650–55; In re United Fire Lloyds, 327 S.W.3d at 257; see also In re Old Am. Cnty.

Mut. Fire Ins. Co., 2013 WL 398866; In re Farmers Tex. Cnty. Mut. Ins. Co., 2011

WL 4916303.

       We conditionally grant Progressive’s writ of mandamus and order the trial

court to vacate the February 11, 2014 Order, grant Progressive County Mutual

Insurance Company’s Motion to Sever, and abate the extra-contractual claims. We

are confident that the trial court will promptly comply, and our writ will issue only

if it does not.



                                              Harvey Brown
                                              Justice

Panel consists of Justices Keyes, Bland and Brown.




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