                                                                                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
                                                        TYLER, TEXAS
                              at Tyler             11/16/2015 5:51:19 PM
                                                          PAM ESTES
__________________________________________________________________
                                                            Clerk

           In Re AAA Texas County Mutual Insurance Company,

                               Relator.

__________________________________________________________________

Original Proceeding from Cause Number 2014-1365-A pending in the 188th
                 Judicial District Court of Gregg County
__________________________________________________________________

     RELATOR AAA TEXAS COUNTY MUTUAL INSURANCE COMPANY’S
                  PETITION FOR WRIT OF MANDAMUS
__________________________________________________________________

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

                                                        Gregory R. Ave
                                            State Bar Number 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
                 LIST OF PARTIES AND THEIR COUNSEL

      Pursuant to Texas Rule of Appellate Procedure 52.3(a), the following

is a complete list of all parties, and the names and addresses of all trial and

appellate counsel:

1.    Relator:

      AAA Texas County Mutual Insurance Company

2.    Trial Counsel for Relator:

      Carlos Balido
      State Bar No.: 01631230
      Walters Balido & Crain, L.L.P.
      Meadow Park Tower, Suite 1500
      10440 North Central Expressway
      Dallas, Texas 75231
      Telephone: 214-749-4805
      Facsimile: 214-760-1670
      Email: carlos.balido@wbclawfirm.com

3.    Appellate Counsel for Relator:

      Gregory R. Ave
      State Bar No.: 01448900
      Greg.ave@wbclawfirm.com
      Jay R. Harris
      State Bar No.: 00793907
      Walters, Balido & Crain, L.L.P.
      Meadow Park Tower, Suite 1500
      10440 North Central Expressway
      Dallas, Texas 75231; and




                                       i
4.   Respondent:

     The Honorable Judge David Brabham
     Judge of the 188th Judicial District Court of Gregg County, Texas
     Gregg County Courthouse
     101 East Methvin, Suite 408
     Longview, Texas 75601
     Telephone (903) 237-2588
     Facsimile (903) 236-8603

5.   Real Party in Interest:

     Thomas Jackson

6.   Trial Counsel for Real Party in Interest:

     Justin A. Smith
     Glenn A. Perry
     Sloan, Bagley, Hatcher & Perry Law Firm
     101 East Whaley Street
     Longview, Texas 75601
     Telephone (903) 757-7000
     Facsimile (903) 757-7574




                                     ii
                                       TABLE OF CONTENTS

IDENTITY OF PARTIES & COUNSEL .............................................................................i

TABLE OF CONTENTS............................................................................................... iii

INDEX OF AUTHORITIES ........................................................................................... v

STATEMENT OF THE CASE ..................................................................................... viii

STATEMENT OF JURISDICTION ................................................................................. ix

ISSUES PRESENTED .....................................................................................................x

STATEMENT OF FACTS ............................................................................................... 1

ARGUMENT & AUTHORITIES ................................................................................... 21

I.       Standard of Review .................................................................................... 21

II.      Mandamus Relief Is Warranted In This Case ......................................... 22

         A.       The Trial Court Abused Its Discretion in Refusing To Abate
                  Discovery on Jackson’s Extra-Contractual Claims Because
                  These Claims Are Not Ripe, Have Not Accrued, and Will
                  Likely Be Rendered Moot, Unless and Until Jackson Has
                  Obtained a Final Adjudication of Tortfeasor Tompkin’s
                  Liability and Damages for which AAA Owes UIM Benefits,
                  But Then Refuses to Pay. .................................................................... 22

                  1.       Because Jackson has not obtained a final judgment
                           establishing the liability of, and damages caused by,
                           Tompkins, AAA has no contractual duty to pay
                           UIM benefits ........................................................................... 22




                                                          iii
                   2.        Allowing discovery on Jackson’s extra-contractual
                             claims before a determination on Jackson’s UIM
                             claim is an abuse of discretion. ........................................... 25

         B.        AAA Has No Clear and Adequate Remedy By Appeal Because
                   It Will Lose Substantial Rights By Being Required To Conduct
                   Discovery on Claims Which Have Not Accrued and May Be
                   Rendered Moot.. .................................................................................. 40

PRAYER ..................................................................................................................... 41

CERTIFICATE OF COMPLIANCE ................................................................................ 43

CERTIFICATE OF SERVICE ........................................................................................ 44

APPENDIX ................................................................................................................. 45




                                                              iv
                                   INDEX OF AUTHORITIES

                                                    Cases

In re Allstate County Mut. Ins. Co.,
447 S.W.3d 497 (Tex. App.–Houston [1st Dist.] 2014) ................. 24, 38, 39, 40

In re Allstate Indem. Co.,
2003 Tex. App. LEXIS 9245 (Tex. App.–Dallas October 30, 2003)............ ix, 39

In re Allstate Ins. Co., 232 S.W.3d 340 (Tex. App.—Tyler 2007) ...................... 30

In re Am. Nat’l County Mut. Ins. Co.,
384 S.W.3d 429 (Tex. App.–Austin 2012) ........................................................... 40

Blackstone v. Thalman,
949 S.W.2d 470 (Tex. App.—Houston [14th Dist.] 1997, no writ) .................... 3

Brainard v. Trinity Universal Ins. Co., 216 S.W.3d 809 (Tex. 2006) ............passim

F. A. Richard & Assocs. v. Millard,
856 S.W.2d 765 (Tex. App.–Houston [1st Dist.] 1993) ..................................... 37

Figueroa v. Davis,
318 S.W.3d 53 (Tex. App.—Houston [1st Dist.] 2010, no pet.) ........................ 3

Gilbert Tex. Constr., L.P. v. Underwriters at Lloyd’s London,
327 S.W.3d 118 (Tex. 2010) ................................................................................... 24

Legal Sec. Life Ins. Co. v. Ward,
373 S.W.2d 693 (Tex. Civ. App.—Austin 1963, no writ).................................... 3

Liberty Nat’l Fire Ins. Co. v. Akin, 927 S.W.2d 627 (Tex. 1996)........ ix, 32, 33, 38

Mid-Century Ins. Co. v. Lerner,
901 S.W.2d 749 (Tex. App.–Houston [14th Dist.] 1995) ................................... 37



                                                       v
In re Miller, 202 S.W.3d 922 (Tex. App.--Tyler 2006) ........................................ 32

Northwestern Nat’l Lloyds Ins. Co. v. Caldwell,
862 S.W.2d 44 (Tex. App.–Houston [14th Dist.]1993) ...................................... 37

In re Progressive County Mut. Ins. Co.,
439 S.W.3d 422 (Tex. App.—Houston [1st Dist.] 2014, no pet.) ..............passim

Progressive County Mut. Ins. Co. v. Boyd, 177 S.W.3d 919 (Tex. 2005)............. 25

In re Prudential Ins. Co. of Am., 148 S.W.3d 124 (Tex. 2004) .......................21, 39

In re State Farm Mut. Auto. Ins. Co.,
395 S.W.3d 229 (Tex. App.—El Paso 2012, no pet.) .......................................... 33

State Farm Mut. Auto. Ins. Co. v. Wilborn,
835 S.W.2d 260 (Tex. App.--Houston [14th Dist.] 1992) ............................33, 37

Texas Farm Bureau Underwriters v. Skeen,
374 S.W.3d 651 (Tex. App.—Tyler 2012, no pet.) .......................................26, 27

Thurmond v. Wieser, 699 S.W.2d 680 (Tex. App—Waco 1985, no writ) ........... 3

In re Trinity Universal Ins. Co., 64 S.W.3d 463 (Tex. App.–Amarillo 2001) .... 32

In re United Fire Lloyds,
327 S.W.3d 250 (Tex. App.–San Antonio 2010) ..................................... ix, 21, 35

U.S. Fire Ins. Co. v. Millard,
847 S.W.2d 668 (Tex. App.--Houston [1st Dist.] 1993) ......................... 22-23, 37

Weir v. Twin City Fire Ins. Co.,
622 F. Supp. 2d 483 (S.D. Tex. 2009) (Harmon, J.) ............................................ 26

Womack v. Berry, 291 S.W.2d 677 (1956) ............................................................. 34




                                                  vi
                                         OTHER AUTHORITIES

RESTATEMENT (SECOND) OF CONTRACTS § 36 (1981)............................................. 3

RESTATEMENT (SECOND) OF CONTRACTS § 39(2) ................................................... 3

TEX. GOV’T CODE ANN. § 22.221 ........................................................................... ix

Texas Insurance Code §§ 541.060(a)(2)(A), 542.056, 542.057, and 542.058 ..... 7

Texas Rule of Appellate Procedure 52 ............................................................... ix

Texas Rule of Appellate Procedure 52.3(a) ..........................................................i

Texas Rules of Civil Procedure 194.2(d) and 192.3(a) ..................................... 17

Texas Rules of Evidence 408 ................................................................................ 33




                                                     vii
                       STATEMENT OF THE CASE

Nature Of The Underlying Case:

       This original proceeding arises from a lawsuit filed by Plaintiff and
Real Party in Interest Thomas Jackson (“Jackson”) arising from a motor
vehicle accident. [MR 6-8.] Jackson brought suit against AAA to recover
underinsured motorist (“UIM”) benefits based on a motor vehicle accident
involving Jackson and Patricia Tompkins (“Tompkins”) on June 12, 2013.
[Id.] In his second amended petition, Jackson continues to seek to recover
UIM benefits, two purported breach of contract claims, as well as damages
for AAA’s alleged bad faith and statutory violations related to settlement
negotiations and an offer of settlement made by AAA to Jackson to resolve
his UIM claims (and subsequent lawsuit). [MR 8-14.]

Respondent:

     The Honorable David Brabham, Judge of the 188th Judicial District
Court of Gregg County, Texas.

Respondent’s Actions from Which Relief Sought:

       AAA moved to sever and abate Jackson’s breach of contract claims,
his bad faith and other extra-contractual claims until the preliminary issue
of tort liability and damages are resolved. [MR 66.] The trial court denied
in its entirety AAA’s motion to sever and abate and instead, ordered AAA
to respond to discovery requests which solely pertain to Jackson’s extra-
contractual claims and which do not go to the only issues ripe for
determination: (1) the tort liability of Tompkins; (2) the amount of Jackson’s
actual damages because of the June 12, 2013 accident; and the underinsured
status of Tompkins. [MR 135-37; 138.]

Orders at Issue:

      The trial court’s order of November 6, 2015 denying AAA’s motion to
sever and abate [MR 138; see also App. At Tab A] and the November 6, 2015
order compelling AAA to respond to the discovery requests propounded


                                     viii
by Jackson [MR 135-37; see also App. at Tab B].

                        STATEMENT OF JURISDICTION

       This Court possesses jurisdiction to grant mandamus relief from the
trial court’s order denying AAA’s request to sever and abate the extra-
contractual claims and the trial court’s order compelling AAA to respond
to Jackson’s discovery requests pertaining to his bad faith and extra-
contractual claims before the threshold issues of Tompkins’ purported
negligence is judicially determined, before the amount of Jackson’s actual
damages are legally established, and before the underinsured status of
Tompkins is judicially resolved because same constitutes a clear abuse of
discretion which impacts AAA’s right to protect its claim file and avoid the
expense of defending itself against claims which are not ripe, have not
accrued, and will likely be rendered moot, and for which no adequate
remedy exists by ordinary appeal. See TEX. GOV’T CODE ANN. § 22.221; TEX.
R. APP. P. 52.1




1
  Liberty National Fire Ins. Co. v. Akin, 927 S.W.2d 627, 628 (Tex. 1996) (sever and abate of
extra-contractual claims from UM claim required where settlement offer has been made
on the disputed UM claim); In re Allstate Indem. Co., 2003 Tex. App. LEXIS 9245 (Tex.
App.–Dallas October 30, 2003, orig. proceeding) (trial court abused its discretion when
it failed to both sever and abate plaintiff’s extra-contractual claims in UM case); In re
Progressive County Mut. Ins. Co., 439 S.W.3d 422, 427 (Tex. App.–Houston [1st Dist.]
2014, orig. proceeding) (insurer had no adequate remedy by appeal where trial court
permitted discovery on extra-contractual claims in UM action because insurer would
“lose substantial rights by being required to prepare for claims that may be rendered
moot and never even accrue”); In re United Fire Lloyds, 327 S.W.3d 250, 256 (Tex. App.–
San Antonio 2010, orig. proceeding) (insurer did not have adequate remedy by appeal
where it would “lose substantial rights by being required to prepare for claims that may
be rendered moot and may have not even yet accrued”).


                                             ix
                    ISSUES PRESENTED

1.   Whether the trial court’s refusal to sever and abate
     Jackson’s extra-contractual claims and refusal to
     abate discovery on Jackson’s extra-contractual
     claims until the conditions precedent (i.e., the
     judicial determination as to the liability or fault of
     Tompkins in causing the accident with Jackson, the
     amount of his actual damages, and a determination
     whether Tompkins is underinsured) as to whether
     to asserting a valid UIM claim are satisfied is an
     abuse of discretion which warrants mandamus
     relief because Jackson’s extra-contractual claims are
     not ripe, have not accrued, and will likely be
     rendered moot, absent (1) a final adjudication of
     Tompkins’ liability, (2) Jackson’s actual damages,
     (3) Tompkins underinsured status, and (4) only then
     when coupled with a refusal by AAA to pay UIM
     benefits based on the judicial determinations of (1)-
     (3), supra.

2.   Whether AAA has an adequate remedy by ordinary
     appeal where AAA will lose substantial rights by
     being required to conduct discovery on claims
     which are not ripe, have not accrued, and will likely
     be rendered moot.




                               x
                        STATEMENT OF FACTS

      On or about June 12, 2013, Jackson was involved in an automobile

accident with another vehicle driven by Tompkins (the “accident”). [MR

7.] After the accident, Jackson submitted claims to AAA for personal injury

protection (“PIP”) benefits which AAA paid (a total of $5,000.00). [MR 1.]

Jackson also made a liability claim against Tompkins which her insurer, for

whatever reason, offered him $30,000.00 to settle fully and finally any and

all claims he had against Tompkins (AAA consented to the settlement).

[Id.] Subsequent to the settlement with Tompkins, Jackson asserted a claim

under the policy for the full amount of UIM limits - $100,000.00 per person

limit. [Id.]

      On March 31, 2014, AAA received a demand letter from Jackson and

a packet of information which provided Jackson’s version of events

surrounding the accident and medical documentation. [Id.] On April 28,

2014 AAA offered Jackson $20,000.00 “in an effort to resolve this matter” –

the clear connotation is that AAA made an offer to achieve a final

settlement of a disputed contract claim (i.e., the UIM claim).          [Id.]

Importantly, the $20,000.00 offer was to “conclude” Jackson’s UIM claim in

its entirety and to “resolve this matter” all hallmarks of a finite offer to


                                     1
settle and not the offer of a partial payment (as Jackson contends).

Moreover, four days later on May 2, 2014, Jackson made a counteroffer

and, as a matter of law, rejected AAA’s $20,000.00 offer to settle and

conclude in its entirety Jackson’s UIM claim. [MR 2.] This is evidenced

also by the rejection of the counteroffer proposed by Jackson in AAA’s

May, 22, 2014 correspondence, wherein AAA explicitly stated that:

            Your letter advises [Jackson] vehemently disagrees
            with [AAA’s] valuation; however, you demand
            [AAA] tender a check for $20,000.00 UIM.
            Furthermore, you advise [Jackson] will not sign a
            release, will negotiate the issued check and have the
            right to pursue additional amounts for this claim in
            the future.

            Unfortunately, [AAA is] unable to comply with
            your request. Our offer was a compromise to
            resolve this matter fully and finally in exchange for
            a release. It (the $20,000.00 offer) remains on the
            table if your client wishes to accept.

            If this offer is not being accepted and considered
            full and final we will continue our handling of this
            matter per Brainard v. Trinity Universal Ins. Co. case
            law.

[MR 4-5.]

      As evidenced by the lawsuit, Jackson rejected AAA’s offer of

$20,000.00 to fully and finally settle his UIM claim.



                                       2
       Yet now, Jackson contends an oral agreement (since no written

agreement exists) was made between AAA and Jackson that AAA would

pay him the previously offered and rejected $20,000.00 and then litigate

whether Jackson was entitled to recover additional UIM benefits. [MR 9.]

This contention by Jackson is meritless, inane, and borders on being

patently frivolous.2       In fact, as demonstrated supra, nothing could be

further from the truth.

I.     THE UIM LAWSUIT

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

to recover UIM benefits under Texas personal automobile policy number

TPA-016443353 issued by AAA to Jackson (the “policy”), breach of contract



2    “A counteroffer constitutes a rejection, not an acceptance, of the original offer.”
Blackstone v. Thalman, 949 S.W.2d 470, 473 (Tex. App.—Houston [14th Dist.] 1997, no
writ). An offeree’s power of acceptance is terminated by the making of a counteroffer,
unless the offeror has manifested a contrary intention or unless the counteroffer
manifests a contrary intention of the offeree. Thurmond v. Wieser, 699 S.W.2d 680, 682
(Tex. App—Waco 1985, no writ); see also RESTATEMENT (SECOND) OF CONTRACTS § 39(2).
Once it has been terminated by the making of a counteroffer, an offeree’s power to
accept the original offer cannot be revived by later accepting the offer. See Legal Sec. Life
Ins. Co. v. Ward, 373 S.W.2d 693, 698 (Tex. Civ. App.—Austin 1963, no writ) (holding
that the rejection of an offer has the effect of terminating it, and it cannot be revived by
later acceptance); see also Figueroa v. Davis, 318 S.W.3d 53, 68-69 (Tex. App.—Houston
[1st Dist.] 2010, no pet.) (stating that, “[u]nder contract principles, once an offer is
rejected, it is terminated, and the rejecting party cannot thereafter accept it”);
RESTATEMENT (SECOND) OF CONTRACTS § 36 (1981) (offeree’s power of acceptance is
terminated by rejection of offer); Id. § 35(2) (1981) (a contract cannot be created by
acceptance of an offer after the power of acceptance has been terminated).


                                             3
for not funding his UIM lawsuit by paying him $20,000.00, breach of

contract for not capitulating to his demands and pay him the per person

$100,000.00 in UIM limits, as well as damages for AAA’s alleged bad faith

and statutory violations related to the handling of his claim for UIM

benefits.   [MR 6-14.]   In the underlying lawsuit, Jackson’s core factual

allegations exclusively relate to the purported negligent conduct of

Tompkins in causing the accident and Jackson’s alleged damages. [MR 7-

8.] Specifically, Jackson alleges:

                                     E. FACTS

            7.     This lawsuit results from a collision that
            occurred on June 12, 2013, at approximately 8:58
            p.m. in Longview, Gregg County, Texas. [Jackson]
            was operating his vehicle westbound on Pliler
            Precise Road in a safe, reasonable and lawful
            manner, when he stopped in obedience to a traffic
            control device at the intersection of Judson Road
            and Pliler Precise Road. After stopping, and in
            obedience to the traffic control device, [Jackson]
            proceeded to continue traveling westbound into the
            intersection of Pliler Precise Road and Judson Road.
            [Tompkins] was traveling northbound on Judson
            Road when, with complete disregard for the safety
            and welfare of other persons or property, she
            disregarded the traffic control device striking the
            driver’s side of the vehicle being driven by
            [Jackson] and causing the collision made the basis
            of this lawsuit.



                                        4
     8.    When the collision occurred, [Jackson’s]
     vehicle was covered by a policy of automobile
     insurance in full force and effect, which is the
     subject of this lawsuit. The policy of automobile
     insurance was issued by [AAA] and included
     uninsured/underinsured motorist coverage as
     defined under the policy and/or by statute.

     9.     [Jackson] timely and properly notified [AAA]
     of the motor vehicle collision that is the subject of
     this suit. [Jackson] has fully complied with all of
     the conditions of that insurance policy prior to his
     filing suit against [AAA]. All conditions precedent
     have been performed or have occurred. Further,
     [Jackson] has complied with requests for provision
     of information to [AAA].

     10. As a result of the collision caused by
     [Tompkins], [Jackson] sustained damages that
     exceed the amount of available and collectible
     liability insurance coverage issued to [Tompkins]
     and which covered her negligent actions. [AAA]
     refused to consider [Jackson’s] injuries, medical
     billing paid or incurred by or on behalf of [Jackson]
     and failed, and continues to fail, to fully
     compensate [Jackson] for the injuries caused by
     [Tompkins], an underinsured motorist, and give
     [Jackson] the benefit of the bargain of his
     uninsured/underinsured motorist coverage present
     in the insurance policy, in violation of Texas law as
     described herein below. As a result of their acts
     and/or omissions, and unlawful conduct as
     described herein below, [AAA] proximately caused
     [Jackson] injury.

This is the sum total of the facts which form the basis for Jackson’s



                               5
purported breach of contract and extra-contractual claims against AAA.

      Incredibly and despite the established law in Texas, Jackson asserts

the following causes of actions, with the relevant basis, in part, quoted:

            &     BREACH OF CONTRACT

                  [AAA] to date has failed and refused to pay
                  the money due under the policy, despite
                  demand.

                  Specifically, [AAA] has determined that
                  [Jackson’s] [UIM] claim is worth at least
                  $55,000.00, as evidenced by its April 28, 2014,
                  offer to pay $20,000.00 in addition to $5,000.00
                  previously paid by [AAA] in [PIP] benefits
                  and     $30,000.00    previously     paid     by
                  [Tompkins’s] insurer.       However, despite
                  [Jackson’s] demand for payment of this
                  undisputed portion of his underinsured
                  motorist coverage, [AAA] has refused to
                  tender this amount. This failure and refusal
                  to pay constitutes a breach of contract and
                  demonstrates bad faith.

            &     BREACH OF CONTRACT

                  Further, [AAA’s] failure to properly value and
                  fully pay [Jackson’s] damages pursuant to its
                  obligations in the policy at issue likewise
                  constitutes a breach of contract and
                  demonstrate bad faith, notwithstanding the
                  Texas Supreme Court’s holding in Brainard v.
                  Trinity Univ, Ins. Co., 216 S.W.3d 809 (Tex.
                  2006).



                                      6
&   BREACH OF THE DUTY      OF   GOOD FAITH    AND
    FAIR DEALING

    Without adequate explanation or justification,
    [AAA] breached its duty of good faith and fair
    dealing by denying and/or delaying payment
    of benefits to [Jackson] in accordance with its
    insurance agreement with [Jackson] when it
    was reasonably clear that it should pay said
    benefits to [Jackson]. Specifically, before the
    filing of this suit, [AAA] has determined that
    [Jackson’s] [UIM] claim is worth at least
    $55,000.00, as evidenced by its April 28, 2014,
    offer to pay $20,000.00 in addition to $5,000.00
    previously paid by [AAA] in [PIP] benefits
    and     $30,000.00     previously    paid     by
    [Tompkins’s] insurer. However, despite
    [Jackson’s] demand for [AAA’s] payment of
    $20,000.00 – the undisputed portion of the
    underinsured motorist coverage – [AAA] has
    refused and continues to refuse to tender this
    amount. Accordingly, [AAA] is in violation
    of Texas Insurance Code, Chapter 541, et seq.
    Further, [AAA] has engaged in unfair claim
    settlement practices in violation of Texas
    Insurance Code §§ 541.060(a)(2)(A), 542.056,
    542.057, and 542.058.

&   VIOLATIONS OF THE DTPA AND THE TEXAS
    INSURANCE CODE § 541.060(A)(2)(A)

    Because [AAA] violated Texas Insurance
    Code § 541.060(a)(2)(A) (failing to attempt in
    good faith to effectuate a prompt, fair, and
    equitable settlement of a claim with respect to
    which its liability has become reasonably
    clear), [AAA] is deemed to have violated the


                        7
                  Texas Deceptive Trade Practices - Consumer
                  Protection Act [and the Texas Insurance Code]
                  ...

[MR 8-14.]

      Jackson goes on to include the cause of action du jour – a declaratory

judgment which mirrors his claim for UIM benefits with a claim for

attorneys’ fees tacked on, and claims for knowing violations, and treble

damages. [MR 10-11.]

      As is apparent, Jackson intends to offensively use the pre-litigation

offer of settlement by AAA as the basis to support his claim for breach of

contract, for the supposed breach of the duty of good faith and fair dealing,

and for the claimed violation of the DTPA and the Texas Insurance Code.

Perhaps even more egregious is that Jackson intends to make the $20,000.00

pre-litigation settlement offer as the centerpiece of his argument to the jury.

That is, it is clearly evident that Jackson will contend that the value of his

UIM claim, at a minimum, is at least $55,000.00 based on the $20,000.00

settlement offer made by AAA (when combined with the PIP and liability

payments). Additionally, Jackson is going to make the settlement offer the

focal point by arguing to the jury that it represents (1) an admission by

AAA he is entitled to UIM benefits and (2) then to the same jury in the

                                      8
bifurcated trial portion that AAA acted in bad faith in not paying him the

per person limit.

      In fact, Jackson, albeit delusional and incorrect, admits as to such in

his response to AAA’s motion to sever and abate when he describes the

basis for his two breach of contract claims:

            There are two breach of contract claims in this suit.
            The first breach of contract claim arises because this
            case, unlike those cited by [AAA], involves a carrier
            who, after an apparent evaluation of coverage and
            the claim, (1) determined that the insured suffered a
            covered loss and was entitled to UM/UIM benefits
            in the sum of $20,000.00 and (2) refused to tender
            that sum upon [Jackson’s] request. It is [AAA’s]
            failure to tender that sum, not the amount or
            adequacy of that sum, that forms the basis for one
            of [Jackson’s] breach of contract claims and the
            entire basis for his bad faith claims. See [Jackson’s]
            Second Am. Pet., pg. 3—5.

                          *           *            *

[MR 131.] (emphasis added).

      It is impossible for Jackson to satisfy his burden of proof without

utilizing, as most likely “Exhibit A,” the settlement offer. As discussed

further infra, this Court has held that a trial court must sever and abate all

extra-contractual claims under precisely this situation.




                                      9
II.   THE MOTION TO SEVER AND ABATE

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

Jackson’s extra-contractual claims (which necessarily includes the

settlement-breach of contract claim) pending trial on the threshold

requirements that Jackson obtain a judicial finding establishing the liability

or legal fault of Tompkins in causing the accident, the actual amount of

Jackson’s damages, and the underinsured status of Tompkins. [MR 66-72.]

On the day before the hearing, Jackson filed his response. [MR 128-34.]

The trial court held a hearing on the motion to sever and abate on

November 6, 2015 and signed an order the same day denying AAA’s

request to sever and abate the extra-contractual claims. [MR 138.]

      At prior hearing on October 1, 2015 the parties presented to the trial

court their arguments as to why discovery as to the extra-contractual

claims be stayed (by AAA) and why it should not (by Jackson). Yet, the

court did not rule until after the severance and abate hearing where the

trial court then entered an order retroactively dating back to October 1,

2015 directing AAA to respond to the extra-contractual discovery requests

within 45 days – which became ten days from the date of the hearing. [MR

135-37.]


                                     10
     In ordering AAA to respond, the trial court reviewed the following

discovery requests which clearly go beyond the scope of the evidence to

legally establish (1) whether or to what extent Tompkins was negligent or

at fault in causing the accident, (2) the amount Jackson’s actual damages

solely because of the June 12, 2013 accident, and (3) whether Tompkins is

actually underinsured – and which the trial court ordered AAA to answer

by November 16, 2015:

           Request for Documents:

           1.    The entire claims file and/or adjuster logs
           including, but not limited to, photographs,
           statements, notes, memoranda, tables, computer-
           generated information and other written documents
           contained therein, that were generated in
           connection with the injury to [Jackson] that forms
           the basis of this lawsuit.

                         *            *           *

           6.     All correspondence, memoranda, reports, e-
           mails, facsimile transmissions, and all other
           documents evidencing communications regarding
           the insurance claim(s) or any aspect of said claim(s)
           that is the subject of this litigation between [AAA]
           and its (a) adjusters, (b) employees, (c) officers, (d)
           agents, € representatives, (f) independent adjusters
           (other than those retained for the purpose of
           litigation), and/or (g) independent adjusting firms
           (other than those retained for the purpose of
           litigation).


                                     11
7.   All documents regarding every telephone
conversation with or regarding [Jackson].

8.    All documents regarding the amount(s) set
aside and/or placed in reserve regarding
[Jackson’s] claim for [UIM] coverage benefits
herein.

             *          *           *

11. If already produced herein, a complete copy
of every primary, umbrella, and excess insurance
policy or agreement, including all declarations
page(s), endorsements, amendments, riders, and
attachments in effect when the subject collision
occurred and providing coverage to [Jackson] for
injuries suffered in the subject collision.

             *          *           *

13. All non-waiver agreements, reservation of
rights   letters, and    other   documents    or
communications     regarding   any   contractual
obligation owed to you by [Jackson] or condition
precedent to recovery with which [Jackson] must
comply.

14. All documents relating to any initial
determination, temporary determination, tentative
determination, or final determination regarding
whether [Jackson’s] claim herein is payable or not
payable.

             *          *           *

18.   All documents, records, reports, notations,

                        12
and/or memoranda regarding [Jackson] from
persons and/or entities that compile information
regarding bodily injury claims, health insurance
claims,   liability/property/casualty        insurance
claims, worker's compensation claims, and other
insurance claims, including but not limited to the
Insurance Services Office (“ISO”), Southwest Index
Bureau, and all similar persons or entities.

19. All peer reviews, audits, medical summaries,
memoranda, notes, letters, and other documents
relating to or compiled from the medical records
that [Jackson] has submitted for payment pursuant
to the policy at issue herein and/or injuries that
[Jackson] claims were caused by the collision made
the basis of this lawsuit.

20. All liability work-ups or reports relating to
[Jackson’s] claim for [UIM] coverage benefits.

21. All documents relating to [AAA’s] use, if any,
of computer software programs in reviewing,
analyzing, and/or evaluating claims of injury in
motor vehicle collisions during 2013 and 2014.

22. All documents relating to [AAA’s] use, if any,
of computer software programs in reviewing,
analyzing, and/or evaluating [Jackson’s] claims of
injury in the motor vehicle collision that forms the
basis of this lawsuit.

23. All documents containing [AAA’s] policies,
procedures, processes, and/or rules used by [AAA]
employees to assist in their evaluation of
uninsured/underinsured motorist claims.




                         13
24. All documents containing [AAA’s] policies,
procedures, processes, and/or rules used by [AAA]
employees to assist in their evaluation of
automobile collision bodily injury claims.

             *           *           *

26. All      reports,  memoranda,      and    other
documents related to [AAA’s] evaluation of any
claim for benefits made by [Jackson] other than the
claim at issue herein.

27. All documents relating to every initial
determination, temporary determination, tentative
determination, or final determination regarding
whether any of [Jackson’s] claims other than that at
issue herein was payable or not payable.

28. All documents regarding and/or discussing
[AAA’s] refusal to pay the $20,000.00 that you
offered on April 28, 2014.

29. All documents reflecting, regarding, and/or
discussing premium payments made by [Jackson]
for the automobile insurance policy in effect when
the collision that is the subject of this lawsuit
occurred.

30. All documents necessary to determine the
name, address, telephone number, immediate
supervisor, and current employer of all of [AAA’s]
adjusters,     employees,      agents,      and/or
representatives that have reviewed [Jackson’s]
claim file from a claims handling or claims review
standpoint.




                         14
31. All documents and/or materials pertaining to
any negotiations for settlement or offers of
settlement that were compiled or created prior to
the time of the filing of this lawsuit.

32. All documents, reports, or investigations
relied upon by [AAA] in denying or delaying
payment of any benefits to [Jackson] related to the
claim that is the subject of this lawsuit.

33. All documents regarding any contract that
[AAA has] with any independent adjuster who
performed any service on your behalf related to
[Jackson] claim herein.

34. All documents described or utilized in
responding to [Jackson’s] Interrogatories, Requests
for Production, and Requests for Admission.

              *            *            *

Interrogatories:

3.     To the extent not already produced herein,
describe each separate file containing records,
documents, and/or information relating to
[Jackson] and/or [Jackson’s] claims, including in
[AAA’s] description for each file, the file’s name,
the file number, its descriptive title assigned to it in
the ordinary course of your business, each
custodian of the file, the file’s contents, and its
current location.

              *            *            *

5.  Identify by name, employer (if different from
[AAA], business address, job title, and telephone


                          15
number of each individual who will be [AAA’s] in-
court representative.

6.     Identify by name, employer (if different from
[AAA], business address, job title, and telephone
number and role of each of [AAA’s] employees,
agents, representatives, adjusters, independent
adjusters, independent adjusting firms, consultants,
and any entity or individual acting under any oral
or written agreement, who performed any claims
work, participated in the evaluation of [Jackson’s]
claim, and/or claims services of any type or nature
with respect to the insurance claims involved in this
litigation.

7.    Identify every medical doctor, physician,
osteopath, physician’s assistant, and/or nurse who
has reviewed medical records of [Jackson] in
connection with the claim for [UIM] benefits that
are the subject of this lawsuit.

8.    Identify each of your employees who played
any role in evaluating [Jackson’s] claim, authorized
any proposed payment to be made to [Jackson],
and/or made decisions regarding any adjuster’s
authority to pay or deny [Jackson’s] claim relating
to [the UIM] coverage purchased by [Jackson].

9.    lf [AAA has] information that has not already
been produced herein regarding any other claims
for personal injury of any type that were made or
may have been made by [Jackson] or by [Tompkins]
since the collision made the basis of this suit, please
state all information you have regarding each such
claim, specifically including but not limited to:

a.    The date of the claim;

                          16
b.   The type of the claim;
c.   The name of the person making the claim;
d.   The other parties involved in the claim;
e.   The injuries claimed in the incident made the
     basis of this claim
f.   The identity of all medical providers involved
     in treating any injury claimed in the incident
     made the basis of the claim
g.   Each insurer and claim number assigned to
     the claim; and
h.   The disposition of the claim.

             *            *            *

11. Pursuant to Texas Rules of Civil Procedure
194.2(d) and 192.3(a), if [AAA] contends that [AAA
is] entitled to a credit or offset against judgment,
state for each such credit/offset:

a.   The dollar amount;
b.   Each category(ies) of damages to which
     [AAA] claims the credit/offset applies; and
c.   How [AAA] arrived at and/or calculated the
     dollar amount of the credit/offset.

             *            *            *

14. lf not already contained in documents
produced herein, state all procedures followed and
each criteria utilized by [AAA] in its investigation
and evaluation of [Jackson’s] claim.

15. List, identify, and describe all documents not
already produced herein that support [AAA’s]
contention, if any, that:

a.   [Jackson]   failed    to   meet       or   perform

                          17
     condition(s) precedent to his bringing this
     lawsuit;
b.   [Jackson] failed to comply with a te1m or
     condition of the insurance agreement that is
     the subject of this lawsuit; and/or
c.   [Jackson’s] claim is excluded from [UIM]
     coverage pursuant to a term or condition of
     the insurance agreement that is the subject of
     this lawsuit.

16. State every reason for your denial of
[Jackson’s] [UIM] claim in excess of your April 28,
2014, offer to pay $20,000.00 (in addition to
$5,000.00 in previously paid personal injury
protection benefits and $30,000.00 previously paid
by [Tompkins’] insurance carrier).

17. If [AAA] used any computer software
program to assist in the evaluation of [Jackson’s]
claim for [UIM] benefits arising from bodily injury,
state for each program:

a.   The name of the program used;
b.   The specific data utilized by the program in
     evaluating [Jackson’s] claims;
c.   All data fields that the program deems
     relevant to evaluating injury claims
d.   The identity of each person who input data
     regarding [Jackson] into the program;
e.   The means by which the results of the
     program’s analysis are presented to the
     program user and/or claims adjuster(s);
f.   The identity of each person who received
     results regarding [Jackson’s] claim; and
g.   The methods by which results of the
     program’s analysis are distributed to each end
     user of the information other than the

                         18
      program user and claims adjuster(s).

18. List all manuals, instructions, directions, and
materials providing guidance regarding the use of
each computer software program identified in the
foregoing interrogatory.

19. State every reason for [AAA’s] refusal to pay
the $20,000.00 that [AAA] offered (in addition to
$5,000.00 in previously paid personal injury
protection benefits and $30,000.00 previously paid
by [Tompkins’] insurance carrier) through Fredrick
M. Armour, your Claims Service Representative, on
April 28, 2014.

20. lf [AAA] contends that [Jackson] is obligated
to provide you with a release in exchange for the
payment of benefits afforded by the [UIM] coverage
contained in the policy at issue herein, identify all
policy provisions and other documents on which
[AAA] base such contention.

             *            *           *

Request For Admissions:

14. [Admit or Deny that] [b]ased upon [AAA’s]
investigation(s) and/or evaluation(s) of [Jackson’s]
[UIM] claim, [AAA has] determined that [Jackson]
has sustained damage in excess of the sum of (1)
[Jackson’s] $5,000.00 personal injury protection
coverage, and (2) [Tompkins’] $30,000.00 limit of
liability insurance.

             *            *           *

17.   [Admit or Deny that] [AAA has] failed to pay


                          19
              any portion of the $20,000.00 that you offered
              [Jackson] on April 28, 2014.

              18. [Admit or Deny that] [Jackson] has complied
              with all conditions precedent to recovering from the
              [UIM] coverage contained in [AAA’s] policy
              number TPA-016443353

[MR 17-65.]

      Relevant to this petition for writ of mandamus is that the trial court

itself deemed request for production of document numbers 1, 6, 8, 14, 19,

20, 21, 22, 23, 24, 26, 27, 28, 30, 31, 32, 33; and 34, interrogatories 3, 6, 8, 14,

16, 17, 18, and 19, and request for admission number 17 as “related to

[Jackson’s] extra-contractual claims.”       [MR 135-37.]     In the response to

Jackson’s motion to compel, AAA pointed out specific instances and the

reason why the answering of the above discovery requests were

prejudicial, went beyond the scope of the trial where Jackson would be

required to legally establish the liability of fault of Tompkins, Jackson’s

actual damages, and that Tompkins is in fact underinsured, as well as how

such requests were inappropriate until such time as Jackson demonstrates

he is legally entitled to recover UIM benefits. However, the trial court

denied the request to sever and abate, ordered AAA to answer all of the

above discovery requests, and indicated the trial court would bifurcate the

                                        20
trial of Jackson’s extra-contractual claims. [MR 135-37; 138.]

      Due to the relatively short time period to respond to the discovery

requests (10 days from the date of the hearing), AAA filed this original

proceeding requesting this Court stay the trial court’s order compelling

AAA to answer the discovery requests, and to instruct the trial court to

both sever and abate Jackson’s extra-contractual claims.

                      ARGUMENT & AUTHORITIES

I.    STANDARD OF REVIEW

      Mandamus will issue to correct a clear abuse of discretion for which

the relator has no adequate remedy at law. In re Prudential Ins. Co. of Am.,

148 S.W.3d 124, 135–36 (Tex. 2004, orig. proceeding). A trial court has no

discretion in determining what the law is or in applying the law to the

facts, and a clear failure by the trial court to analyze or apply the law

correctly constitutes an abuse of discretion. In re United Fire, supra, 327

S.W.3d at 253. Mandamus relief is justified when parties stand to lose

substantial rights.   Id.   Mandamus relief is also appropriate to “spare

private parties and the public the time and money utterly wasted enduring

eventual reversal of improperly conducted proceedings.” In re Prudential,

supra, 148 S.W.3d at 136.


                                      21
II.   MANDAMUS RELIEF IS WARRANTED IN THIS CASE

      Mandamus relief is warranted in this case because the record

establishes (a) the trial court abused its discretion when it refused to abate

discovery on Jackson’s extra-contractual claims until the preliminary issues

of tort liability and damage is resolved, and (b) AAA has no clear and

adequate remedy at law. See Id. at 135–36.

      A.    The Trial Court Abused Its Discretion in Refusing To Sever and
            Abate Jackson’s Extra-Contractual Claims and When It Failed To
            Abate Discovery on Jackson’s Extra-Contractual Claims Because
            These Claims Are Not Ripe, Have Not Accrued, and Will Likely Be
            Rendered Moot, Unless and Until Jackson Has Obtained a Final
            Adjudication of Tompkins’ Liability, Jackson’s Actual Damages, and
            the Underinsured Status of Tompkins for which AAA Owes UIM
            Benefits, But Then Refuses to Pay.

            1.    Because Jackson has not satisfied the conditions
                  precedent to assert a valid UIM claims and has not
                  obtained a final judgment establishing the liability or
                  fault of Tompkins in causing the accident with Jackson,
                  the amount of his actual damages, and a determination
                  whether Tompkins is underinsured, AAA has no
                  contractual duty to pay UIM benefits.

      UIM claims and extra-contractual claims are by their very nature

independent, and Texas courts have recognized them as “separate and

distinct causes of action which might each constitute a complete lawsuit

within itself.” See United States Fire Ins. Co. v. Millard, 847 S.W.2d 668, 672



                                      22
(Tex. App.—Houston [1st Dist.] 1993, orig. proceeding). In the context of

UIM claims, “the insurer is under no contractual duty to pay benefits until

the insured obtains a judgment establishing the liability and underinsured

status of the other motorist.” Brainard v. Trinity Universal Ins. Co., 216

S.W.3d 809, 818 (Tex. 2006) (citing Henson v. State Farm Bureau Cas. Ins. Co.,

17 S.W.3d 652, 653-54 (Tex. 2000)).

      In Brainard, the Texas Supreme Court explained the unique nature of

a UIM case as follows:

            The UIM contract is unique because, according to
            its terms, benefits are conditioned upon the
            insured’s legal entitlement to receive damages from
            a third party. Unlike many first-party insurance
            contracts, in which the policy alone dictates
            coverage, UIM insurance utilizes tort law to
            determine coverage. Consequently, the insurer’s
            contractual obligation to pay benefits does not arise
            until liability and damages are determined.

Brainard, 216 S.W.3d at 818

      As a result, Jackson must succeed in establishing he is legally entitled

to recover UIM benefits under the policy, and then demonstrate AAA

refused to subsequently pay him those UIM benefits, before any extra-

contractual claims could ever accrue or become ripe for determination. To

succeed on his UIM claim, Jackson must first establish that UIM coverage

                                      23
for his injuries existed at the time of the accident. See Gilbert Tex. Constr.,

L.P. v. Underwriters at Lloyd’s London, 327 S.W.3d 118, 124 (Tex. 2010) (“the

insured has the burden of establishing coverage under the terms of the

policy.”); In re Allstate County Mut. Ins. Co., 447 S.W.3d 497 (Tex. App.–

Houston [1st Dist.] 2014, no pet.) (in order “[t]o prevail on these [extra-

contractual] claims, the [plaintiffs] must first establish that Allstate is liable

under the insurance contract”).

      To meet his initial burden, Jackson must first satisfy the conditions

precedent to recover on a UIM claim, which requires Jackson obtain a

judicial finding establishing the liability or legal fault of Tompkins in

causing the accident, the actual amount of Jackson’s damages, and the

underinsured status of Tompkins. In re Progressive County Mut. Ins. Co., 439

S.W.3d 422, 427 (Tex. App.–Houston [1st Dist.] 2014, no pet.). “Neither

requesting UIM benefits nor filing suit against the insurer triggers a

contractual duty to pay.” Id. Accordingly, unless and until Jackson obtains

a final judgment establishing Tompkins’ liability, Jackson’s actual damages

because of the June 12, 2013 accident, that Tompkins is actually

underinsured – that is, his actual damages exceed the total limit of liability

available to Tompkins – as well as that his actual damages exceed the

                                       24
$5,000.00 in PIP benefits and $30,000.00 in liability limits previously paid to

him, AAA has no contractual or legal obligation to pay UIM benefits to

Jackson.

            2.    Allowing discovery on Jackson’s extra-contractual claims
                  before a determination on Jackson’s UIM claim is an
                  abuse of discretion.

      Absent proof of an actual breach of contract, AAA should not be

required to provide discovery related to Jackson’s extra-contractual claims

because it is wholly irrelevant, overly broad, and prejudicial.          See In

Progressive, supra, 439 S.W.3d at 427 (severance and abatement of extra-

contractual claims was necessary to avoid prejudice because discovery

relating to extra-contractual claims is irrelevant to claim for UM benefits

and beyond the underlying tort claim – i.e., far broader than car accident

claim that must first be resolved).

      Again, in order to even potentially have – let alone actually prevail on -

- his extra-contractual claims, Jackson must first demonstrate AAA is

contractually obligated to pay his UIM claim. See Progressive County Mut.

Ins. Co. v. Boyd, 177 S.W.3d 919, 922 (Tex. 2005) (bad faith claims are

generally negated by a lack of coverage). Thus, AAA cannot be liable on

any extra-contractual claim or even for breach of contract until Jackson

                                      25
establishes that AAA has failed or refused to pay his UIM claim

subsequent to Jackson obtaining and presenting to AAA a final

adjudication establishing (1) Tompkins’ liability, (2) Jackson’s actual

damages because of the June 12, 2013 accident, and (3) that Tompkins is

actually underinsured. Prior to this occurring, all the time, effort, money,

and judicial resources spent conducting discovery on those claims will

have been for naught.

            If there is no contractual duty to pay, [the insurer]
            cannot be in “bad faith,” under common law or
            statute, for not paying. [The insurer] cannot be
            guilty of not performing a proper investigation of
            his UIM claim because it is the trial of the UIM
            claim, at which it will be determined who was at
            fault and the amount of damages, that constitutes
            the investigation.

Weir v. Twin City Fire Ins. Co., 622 F. Supp. 2d 483, 486 (S.D. Tex. 2009).

      It is for this reason that several courts of appeals, including opinions

from this Court, require the severance and abatement of extra-contractual

claims (thereby precluding discovery on such claims), in the UIM context

when a settlement offer has been made, such as the matter sub judice. For

instance, in Texas Farm Bureau Underwriters v. Skeen, 374 S.W.3d 651 (Tex.

App.—Tyler 2012, no pet.), this Court, although not a UIM case, under very



                                       26
similar facts held that “all of the facts and circumstances of the case

unquestionably require a [severance] to prevent manifest injustice, 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

. . . “ Skeen, 374 S.W.3d at 657 (internal citations omitted).

      In Skeen, Terry Graham (“Graham”) shot and killed Hiram Joshua

Chambers (“Hiram”). Id. at 654. Amanda Chambers, Hiram’s ex-wife,

sued Graham as next friend of Hiram’s two children.              Id.   Graham

requested a defense from Farm Bureau, but Farm Bureau denied Graham’s

request. Id.

      Graham paid his attorneys approximately $130,000 to defend him

against Chambers’ suit and after its conclusion, brought a breach of

contract claim against Farm Bureau seeking reimbursement of the money

he paid to his attorneys, and asserting extra-contractual claims for breach

of Farm Bureau’s common law and statutory duty of good faith and fair

dealing. Id. After dealing with competing motions for summary judgment,

the trial court turned to Farm Bureau’s motion to sever and abate. Id. Just

as here, Farm Bureau contended that, as it had made an offer of settlement

$15,000.00) to Graham, without a severance, it would be prejudiced by

                                       27
evidence of that settlement offer being presented during the breach of

contract portion of the trial. Id.

      Farm Bureau also contended that the extra-contractual claims should

be abated until final resolution of Graham’s contractual claim because

information which would be privileged from discovery on the contractual

claim is not privileged and would be subject to discovery on the extra-

contractual claims.     Id.   Graham responded that the extra-contractual

claims need not be severed because the trial court had granted Graham’s

motion for partial summary judgment on his contractual claim, meaning

that the only remaining issue was the amount of damages to be awarded

by the jury on his breach of contract claim. Id. Alternatively, Graham

argued that bifurcating the trial would prevent the settlement offer from be

admitted during the breach of contract phase of the trial. Id. at 654-55. The

trial court denied Farm Bureau’s motion. Id. Farm Bureau filed a petition

for writ of mandamus and a motion for emergency relief. Id. at 655.

      After discussing the availability of a mandamus under the

circumstances, this Court looked to whether the trial court abused its

discretion when it refused to sever Graham’s extra-contractual claims,

finding that:

                                      28
            there is no room for the exercise of discretion
            “[w]hen all of the facts and circumstances of the
            case unquestionably require a separate trial to
            prevent manifest injustice, 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. . . .” Under
            these circumstances, the refusal to order a severance
            constitutes a violation of a plain legal duty, even
            though it is often termed a clear abuse of discretion.

Id. at 656 (internal citations omitted).

      Moreover, this Court noted that it has on previous occasions held

that where an insurer has made an offer to settle, the extra-contractual

claims must be severed from the contractual claims. Id. at 657. Keeping

this proposition in mind, this Court held that as Farm Bureau had made an

offer to settle, it would be unfairly prejudiced by the admission of its

settlement offer in the trial of the breach of contract claim. Id. Further, this

Court went on to hold that the extra-contractual claims must also be abated

because:

            in conducting discovery on the extra-contractual
            claims in this case, Graham would seek information
            regarding Farm Bureau’s handling of the
            underlying claim made the basis of the breach of
            contract.     This information is relevant and
            discoverable on the extra-contractual claims, but is
            privileged and protected from discovery when
            focusing only on the breach of contract claim. Thus,

                                           29
            under the facts presented here, we hold that Farm
            Bureau has also shown that the trial court abused its
            discretion in denying its motion to abate.

Id. at 658 (internal citations omitted).

      Similarly, this Court in In re Allstate Ins. Co., 232 S.W.3d 340 (Tex.

App.—Tyler 2007, orig. proceeding), held that severance and abatement

was necessary where an insurer made an offer to settle. Relevant to this

matter, the Court likewise held that abatement of the extra-contractual

claims was required, explaining that:

            as in most cases involving severance of contractual
            and extra-contractual claims, if the extra-contractual
            claims are not abated, both parties will incur
            unnecessary discovery expenses if the Nerrens’s
            breach of contract claim is decided in Allstate’s
            favor. We have previously held that these factors,
            standing alone, do not necessarily require
            abatement. But two additional factors are present
            here.    First, Allstate argues that abatement is
            necessary to prevent the premature disclosure of
            privileged information.        Specifically, Allstate
            contends that in conducting discovery on the extra-
            contractual claims, the Nerrens will seek
            information regarding Allstate’s handling of claims
            that is relevant and discoverable on the extra-
            contractual claims, but is privileged and protected
            from discovery when focusing only on the breach of
            contract claim.

In re Allstate Ins. Co., 232 S.W.3d at 344 (internal citations omitted).



                                           30
     Just as in Skeen and In re Allstate, supra, AAA made an offer of

settlement on a disputed contract claim to Jackson.           [MR 1; 4-5.]

Furthermore, Jackson has made it abundantly clear that he intends to make

the offer of settlement by AAA the focal point and key piece of evidence for

purposes of proving up his breach of contract claim as described in his

response to AAA’s motion to sever and abate [MR 131], and to prove up

his purported extra-contractual claims [Id.]. It is also true the concerns

which led this Court to require the trial court to sever and abate the extra-

contractual claims in the cases discussed above are present here – that is,

severance and abatement is necessary as Jackson seeks to discover

information regarding AAA’s handling of claims which may be relevant

and discoverable on the extra-contractual claims, but is privileged and

protected from discovery as to the portion of the trial focusing on Jackson

establishing he is legally entitled to recover UIM benefits. [MR 17-65.]

Lastly, bifurcation will not prevent Jackson from attempting to offensively

use the settlement offer during the trial on his claimed breach of contract

cause of action and which is where he must demonstrate all conditions

precedent to asserting a valid UIM claim have been legally established.

There is simply no way to avoid prejudicing AAA’s rights in the absence of

                                     31
a severance and abatement of the extra-contractual claims and his claim for

breach of contract based on the settlement offer.

      It is also true that the Texas Supreme Court in Akin noted that under

Texas jurisprudence a trial court should typically sever and abate extra-

contractual claims in the UIM context when a settlement offer on the

disputed UIM claim has been made by the insurer. Akin, supra, 927 S.W.2d

at 628; see also In re Miller, 202 S.W.3d 922, 925-26 (Tex. App.–Tyler 2006,

orig. proceeding); In re Trinity Universal Ins. Co., 64 S.W.3d 463, 468 (Tex.

App.–Amarillo 2001, orig. proceeding).

      Under virtually identical circumstances, the El Paso Court of

Appeals, citing Akin, described the state of Texas jurisprudence as

requiring severance and abatement when an insurer has extended an offer

to settle a claim under a contract:

            A trial court abuses its discretion if it fails to order a
            severance “[w]hen 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, there is no
            room for the exercise of discretion.” Prejudice is not
            presumed simply because contract claims and extra-
            contractual claims are joined in the same action;
            accordingly, severance is not always mandatory.

                                       32
            However, when an insurer moves to sever an
            insured’s extra-contractual claims from a contract
            claim following its offer to settle the insured’s entire
            contract claim, the trial court must sever the
            insured’s extra-contractual claims from the contract
            claim because evidence of a settlement offer creates
            prejudice.

In re State Farm Mut. Auto. Ins. Co., 395 S.W.3d 229, 234 (Tex. App.—El Paso

2012, orig. proceeding) (internal citations omitted).

      The court of appeals explained the reason severance and abatement is

required this way:

            Absent severance, an insurer is presented with a
            “Catch-22” in that its decision to admit or exclude
            evidence of a settlement offer jeopardizes the
            successful defense of the other claim. For instance,
            in defending against a contract claim, the insurer
            will insist on exercising its right to exclude evidence
            of a settlement offer to negate liability. See Akin, 927
            S.W.2d at 630; see also TEX. R. EVID. 408. Conversely,
            in defending against extra-contractual claims, an
            insurer will insist on exercising its right to admit
            evidence of a settlement offer to negate liability.
            Akin, 927 S.W.2d at 630. Thus, by having to defend
            against these two types of claims simultaneously
            and before the same jury absent severance, an
            insurer is prejudiced to such an extent that a fair
            trial is unlikely. Akin, 927 S.W.2d at 630. Under
            such a scenario, the trial court has no choice but to
            sever in order to protect the fairness of the
            proceedings and the interests of the parties. See
            State Farm Mut. Auto. Ins. Co. v. Wilborn, 835 S.W.2d
            260, 262 (Tex.App.--Houston [14th Dist.] 1992, orig.

                                      33
              proceeding).

Id. at 234.

      A recent opinion from the Houston Court of Appeals specifically

addressed the prejudice involved in allowing discovery on extra-

contractual claims to continue prior to a determination on an UM claim.

See In re Progressive, supra, 439 S.W.3d 422. There, an insured filed suit for

UM benefits, as well as seeking damages for bad faith and statutory

violations related to the failure to pay those benefits. Id. The insured

served the carrier with a number of discovery requests, including all

documents related to lawsuits and claims against the carrier regarding the

denial of UM claims for over ten years. Id. at 427.

      In response to the insurer’s motion to sever the UM claim from the

extra-contractual claims, the trial court judge signed an order allowing

discovery to move forward on all claims, and deferring the other issues

covered by the motion until the pretrial hearing. Id. at 424. The court of

appeals concluded severance and abatement of the extra-contractual claims

was required in order to avoid prejudice to the insurer. Id. at 427. (citing

Womack v. Berry, 291 S.W.2d 677, 682–83 (Tex. 1956)). The Progressive court

went on to state:

                                      34
            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.
            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.

Id. at 427 (emphasis added).

      Similarly, the trial court’s order – made the subject of this mandamus

– denying the severance and abatement, ordering bifurcation, and

compelling AAA to respond to Jackson’s extra-contractual claims subjects

AAA to irrelevant, overly broad, and prejudicial discovery.

      Other recent opinions confirm the trial court’s refusal to sever and

abate the extra-contractual claims and to abate the discovery on Jackson’s

extra-contractual claims is an abuse of discretion. In In re United Fire Lloyds,

the insured filed suit for UIM benefits under his employer’s insurance

policy, as well as damages for bad faith and statutory violations related to

the denial of those benefits. United Fire, supra, 327 S.W.3d a 252. After the

insurer moved to sever and abate the extra-contractual and bad faith

claims, the insured filed a motion to bifurcate these claims as an alternative


                                      35
to severance and abatement, arguing “a severance would be judicially

wasteful” and would prejudice the insured. Id. at 253. In reviewing the

trial court’s decision to bifurcate (and deny severance and abatement) the

San Antonio Court of Appeals discussed the unique nature of a UIM claim

in that a UIM insurer “has no contractual duty to pay benefits until the

insured obtains a judgment establishing the liability and underinsured

status of the other motorist.” Id. at 255.

      “As a result,” the court continued, “a determination of [the insured’s]

UIM claim may negate his bad faith claims.” Id. at 256. Thus, the court

held, the trial court had abused its discretion when it refused to sever and

abate the insured’s extra-contractual claims because an insurer should not

be required to prepare to litigate claims that could be rendered moot by a

determination on the UIM claim:

            [W]e are constrained by the clear holding in
            Brainard, and hold that [the insurer] is under no
            contractual duty to pay UIM 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
            trial, and conducting voir dire on bad faith claims
            that could be rendered moot by the portion of the
            trial relating to UIM benefits. To require such
            would not do justice, avoid prejudice, and further


                                       36
            convenience. Under these circumstances, we
            conclude the trial court abused its discretion in
            bifurcating the case instead of severing and abating
            the UIM claim from the bad faith claims.

Id. (internal citations omitted) (emphasis added).

      It appears no Texas intermediate court has held severance and

abatement is not necessary where the insurer has made an offer to settle. In

fact, every court of appeals to address the issue has held that when the

insurer has made an offer to settle, a severance and abatement of the

underlying tort aspect of the claim is required to avoid undue prejudice to

the insurer in its defense of the underlying dispute. Mid-Century Ins. Co. v.

Lerner, 901 S.W.2d 749, 752-53 (Tex. App.–Houston [14th Dist.] 1995, orig.

proceeding); Northwestern Nat’l Lloyds Ins. Co. v. Caldwell, 862 S.W.2d 44, 46-

47 (Tex. App.–Houston [14th Dist.] 1993, orig. proceeding); F. A. Richard &

Assocs. v. Millard, 856 S.W.2d 765, 767 (Tex. App.–Houston [1st Dist.] 1993,

orig. proceeding); United States Fire Ins. Co. v. Millard, 847 S.W.2d 668, 673

(Tex. App.–Houston [1st Dist.] 1993, orig. proceeding); State Farm Mut.

Auto. Ins. Co. v. Wilborn, 835 S.W.2d 260, 262 (Tex. App.–Houston [14th

Dist.] 1992, orig. proceeding).     The rationale of these cases is that,

ordinarily, offers of settlement as to a disputed claim for coverage are



                                      37
inadmissible. Akin, supra, 927 S.W.2d at 629.

     As in Akin, Allstate, State Farm, Progressive, United Fire, and the other

cases cited supra, the trial court’s order denying AAA’s request to sever

and abate the extra-contractual claims and to abate discovery as to same is

an abuse of discretion because it does “not do justice, avoid prejudice, or

further convenience.” In re Allstate, supra, 447 S.W.3d at 502. Here, AAA

offered Jackson $20,000.00 in exchange for the settlement and release of a

disputed contract claim (i.e., Jackson’s request for UIM benefits), which was

not accepted, and which Jackson asserts the failure of AAA to pay same –

even though it will not resolve the UIM lawsuit – constitutes a breach of

contract and bad faith on the part of AAA. [MR 1; 4-5; 8-10.] It is difficult

to imagine an even more objectionable and prejudicial situation to an

insurer than the one presently before this Court, which clearly mandates

both the severance and abatement of Jackson’s extra-contractual claims.

Thus, consistent with Brainard and its progeny, unless and until Jackson

obtains a judgment establishing the conditions precedent to assert a valid

UIM claim (that is, a judicial finding as to Tompkins’ liability, Jackson’s

actual damages, and that Tompkins is actually underinsured), AAA has no

contractual obligation to pay UIM benefits.

                                     38
      Without an existing contractual obligation to pay, AAA should not be

required to put forth the effort and expense of conducting discovery on

Jackson’s extra-contractual claims because these claims have not yet

accrued and would be rendered moot by Jackson’s failure to prevail as to

his liability and damages claims against Tompkins and only then after a

subsequent refusal to pay by AAA the judicially established UIM claim (in

the event Jackson obtains a final adjudication demonstrating he is legally

entitled to recover).

      Allowing Jackson to conduct discovery on his extra-contractual

claims will require AAA “to expend resources answering discovery that is

far broader than the car accident claim that must be resolved.”          In re

Progressive, supra, 439 S.W.3d at 427. Thus, the trial court’s refusal to sever

and abate the extra-contractual claims and to abate discovery on these

claims was an abuse of discretion warranting mandamus relief. See In re

Allstate, supra, 2003 Tex. App. LEXIS 9245 *2; In Allstate , supra, 447 S.W.3d

at 502; In re Prudential, supra, 148 S.W.3d at 135–36.




                                       39
      B.    AAA Has No Clear and Adequate Remedy By Appeal Because It Will
            Lose Substantial Rights By Being Required To Conduct Discovery on
            Claims Which Have Not Accrued and May Be Rendered Moot.

      Once AAA is required to respond to the discovery propounded by

Jackson and which go only to his settlement-breach of contract and extra-

contractual claims, AAA will be irreparably harmed. Moreover, as Texas

jurisprudence has consistently held, AAA has a substantial right not to be

required to put forth the expense of conducting discovery on extra-

contractual claims which have not accrue, are not ripe, and could be

rendered entirely moot, unless and until Jackson first conclusively prevails

on her UIM claim and only then after AAA fails to pay those benefits. See,

e.g., In re Progressive, supra., 439 S.W.3d at 428 (citing In re United Fire Lloyds,

327 S.W.3d at 256). If discovery on Jackson’s extra-contractual claims is

permitted to advance, AAA will be required to conduct discovery “on

claims that may have not yet accrued and that could be rendered moot by .

. . the trial relating to . . . underinsured motorist benefits.” In re Allstate,

supra, 447 S.W.3d at 503 (citing In re Progressive, 439 S.W.3d at 427–28); see

also In re American Nat’l County Mut. Ins. Co., 384 S.W.3d 429, 439 (Tex.

App.–Austin 2012, orig. proceeding) (holding that insurer did not have

adequate remedy by appeal where it would “lose substantial rights . . . by


                                        40
being required to prepare and try claims that may be rendered moot”).

Accordingly, AAA has no adequate remedy by appeal, and mandamus

relief is warranted. Id.

                                 PRAYER

      WHEREFORE, PREMISES CONSIDERED, Relator AAA Texas

County Mutual Insurance Company respectfully prays that this Court

direct the trial court to withdraw its November 6, 2015 order and instruct

the trial court to sever and abate the extra-contractual claims and to abate

discovery on Jackson’s severed settlement-breach of contract, extra-

contractual, and bad faith claims until there has been a full and final

resolution of Jackson’s UIM claim, and to vacate the November 6, 2015

order compelling AAA to respond to the discovery requests associated

with or which only pertain to Jackson’s extra-contractual claims. AAA also

prays and for such other and further relief to which AAA may be entitled.




                                     41
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 RELATOR AAA TEXAS
      COUNTY MUTUAL INSURANCE
      COMPANY




 42
                    CERTIFICATE OF COMPLIANCE

       Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), the
undersigned certifies that this petition complies with the type-volume
limitations of Texas Rule of Appellate Procedure 9.4(i)(2)(B). Exclusive of
the exempt portions identified by Texas Rule of Appellate Procedure
9.4(i)(1), this petition contains 8,664 words, including footnotes, headings,
and quotations. In providing this word-count, the undersigned is relying
on the word count generated by the computer program used to prepare the
brief.

      This brief has been prepared in proportionally spaced type, 14-point
text, and in Book Antiqua font, using the computer program known as
Microsoft Word (2010 version).

     Acknowledged: November 16, 2015

                                            /s/ Gregory R. Ave
                                           GREGORY R. AVE




                                     43
                      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
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




                                    44
                                                 APPENDIX

Item                                                                                                          Tab

Order Denying AAA’s Motion to Sever and Abate ..........................................A

Order Compelling AAA to Respond to Jackson’s Extra-Contractual
Discovery Requests ................................................................................................ B

Defendant’s Objections and Responses to Plaintiff’s First Request for
Production; Defendant’s Objections and Answers to Plaintiff’s First
Set of Interrogatories; and Defendant’s Objections and Responses to
Plaintiff’s First Request for Admissions ............................................................. C




                                                        45
Tab A
                                                                                                     FILE O
                                                                                                 GREGG COUNT',~ TEXA 8




                                           CAUSE NO. 2014-1365-A

THOMAS JACKSON                                     §       IN THE DISTRICT COURT 0
                                                   §
vs.                                                §       GREGG COUNTY, TEXAS
                                                   §
AAA TEXAS COUNTY MUTUAL                            §
                                                                  TH
INSURANCE COMPANY                                  §        188        JUDICIAL DISTRICT


   ORDER DENYING DEFENDANT AAA TEXAS COUNTY MUTUAL INSURANCE
     COMPANY'S MOTION FOR SEVERANCE AND PLEA IN ABATEMENT


       On the       io-t-'h   day of __N_o_\J_._____, 2015, came to be heard Defendant

AAA Texas County Mutual Insurance Company's Motion for Severance and Plea in Abatement

to Plaintiffs extra-contractual claims and causes of action. The court, after reviewing the

arguments of counsel and reviewing the documents on file, is of the opinion that said motion

should be DENIED.

       IT IS THEREFORE ORDERED, ADJUDGED AND DECREED, that Defendant's

Motion for Severance and Plea in Abatement is DENIED its entirety, and the Plaintiffs extra-

contractual claims will not be severed from the underlying contract claim and the extra-
                .
contractual cla11n~Jl!e not abated.
                                       --r.- /! .. _ ..L      .L .. A
                                         I J..u. \JZlW'"'ll Ott~"
                                                                         1D    -'-
                                                                        '"{IA.CAA..
                                                                                      fw·I'cJ. -skill be_ (:;,i~co:t~
                                                                                       1
04 -to "'R.,.,.;~''=- ~o. c?..c..ti-c~c~eu ~D.A...,'5.
        SIGNED this             (I)   th       day of                  No Li                      , 2015.




                                                   JUDGE PRESIDING




ORDER DENYING DEFENDANT'S MOTION FOR SEVERANCE AND
PLEA IN ABATEMENT·                                                                                    Solo Page
# 14872448177325
Tab B
                                                                                       FILED
                                                                                  GREGG COUNT'(. TF..XAS


                                                                                    NOV 0 6 2015
                                   CAUSE NO. 2014 - 1365 - A
                                                                                   -zu             -A
                                                                                                   DEPUn'


THOMAS JACKSON                                    §            IN THE DISTRICT COURT

                                                  §

vs.                                               §            OF GREGG COUNTY, TEXAS

                                                  §

AAA TEXAS COUNTY MUTUAL                           §

INSURANCE COMPANY                                 §             1881h JUDICIAL DISTRICT



               AGREED ORDER ON PLAINTIFF'S MOTION TO COMPEL

       After considering Plaintiff, Thomas Jackson's Motion to Compel, the response, any

evidence submitted therewith, and arguments of counsel, the Court finds the Motion to be well

taken and therefore GRANTS Plaintiff's Motion to Compel.

       It is therefore, ORDERED, ADJUDGED and DECREED that Plaintiff's Motion to

Compel is GRANTED and that all objections asserted by Defendant in its responses to Plaintiff's

First Requests for Admission, First Set of Interrogatories, and First Requests for Production are

hereby OVERRULED.

       The Court further FINDS that the following requests are related to the incident

underlying the suit, Plaintiff's claims for breach of contract and/or Plaintiff's claims for

declaratory judgment: Plaintiff's Request for Admission No. 18; Plaintiff's Interrogatories Nos.

I, 2, 4, 5, 7, 9, 10, 11, 12, 13, 15, and 20; Plaintiff's Requests for Production Nos. 2, 3, 4, 5, 7, 9,

IO, 11, 12, 13, 15, 16, 17, 18, 25, and 29; and Plaintiff's Request for Production No. 34, to the
                                                                                                            ~ - I

extent it pertains to these immediately aforementioned discovery requests. It is, therefore,




                                                                                                   Page I
ORDERED that Defendant shall fully respond to these requests and interrogatories and produce

all responsive information and documents within fourteen (14) days of October I, 2015. It is

further ORDERED that should any information or material be withheld on the basis of privilege

from Defendant's responses to this discovery, Defendant shall produce a privilege log

identifying the information withheld, the specific privilege(s) asserted, information sufficient for

the Court and Plaintiff to assess the applicable of those privileges, and any and all other

information required by Texas Rule of Civil Procedure 193.3 within fourteen (14) days of

October I, 2015.

       The Court further FINDS that that the following requests are related to Plaintiffs extra-

contractual claims: Plaintiffs Request for Admission No. 17; Plaintiffs Interrogatories Nos. 3,

6, 8, 14, 16, 17, 18, and 19; Plaintiffs Requests for Production Nos. l, 6, 8, 14, 19, 20, 21, 22,

23, 24, 26, 27, 28, 30, 31, 32, and 33; and Plaintiffs Request for Production No. 34, to the extent

it pertains to these immediately aforementioned discovery requests. It is, therefore, ORDERED

that Defendant shall fully respond to these requests and interrogatories and produce all

responsive information and documents within forty-five (45) days of October l, 2015. It is

further ORDERED that should any information or material be withheld on the basis of privilege

from Defendant's responses to this discovery, Defendant shall produce a privilege log

identifying the information withheld, the specific privilege(s) asserted, information sufficient for

the Court and Plaintiff to assess the applicable of those privileges, and any and all other

information required by Texas Rule of Civil Procedure 193.3 within forty-five (45) days of

October I, 2015.




                                                                                               Page 2
          t-lo-..J. Z:,
SIGNED on_!__:..:::_:~----- , 201s.
                                      --1\Ml.J~~-
                                      JUDGE PRESIDING




                                                        Page 3
Tab C
....•. '.




                                           CAUSE NO. 201"1365-A

        THOMAS JACKSON,                             §              IN THE DISTRICT COURT OF
        Plaintiff                                   §
                                                    §
        vs.                                         §              l 88th JUDICIAL DISTRlCT               l
                                                                                                          I
                                                    §                                                     r
        AAATEXASCOUNTYMUTUAL                        §
        INSURANCE COMP ANY                          §
        Defendant.                                  §              GREGG COUNTY, TEXAS


                       DEFENDANT'S OBJECTlONS and RESPONSES TO
              PLAJNTIFF THOMAS JACKSON'S FIRST REQUEST FOR PRODUCTION

        TO:    Thotnas Jackson, Plaintiff, by and tbrougli his attomeys of record, M. Raymond Hatcl:ier
               and Alan J. Robertson, Sloan, Bagley, Hatcher & Perry Law Firm, 101 East Whaley                  j.
               Street, Longview, Texas 75601.                                                                   !



               COMES NOW AAA Texas County Mutual Insurance Company, Defendants in the above

        numbered and styled cause, and serves its Objections and Responses to the Plaintiffs l'irst

        Request for Prodiiction, in accordance with the Texas Rn!es of Civil Procednre.


                                                            Respectfully submitted,

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




                                                            State Bar No. 01631230
                                                            Meadow Park Tower, Sirite 1500
                                                            10440 N01ih Central Expressway,
                                                            Dallas, TX 75231                              I·.
                                                                                                          I
                                                            Tel: 214-749-4805
                                                            l'ax: 214-760-1670                            I
                                                            carlos.balidolii.!wbclawftrrn.com             '
                                                            ATTORNEY FOR DEFEND.ANT
                                CERTIFICATE OE SERVICE

        This is to certify that a true and correct copy of the foregoing document has been mailed,
faxed, or hand delivered to all parties ofrecord, in compliance with Rule 2la of the Texas Rules
of Civil Procedure, on December~ 2014.

Via First Class U.S. Mail
M. RaymondHatcher
Alan J. Robertson
Sloan, Bagley, Hatcher & Perry Law Film
I 01 East Whaley Street
Longview, Texas 75601




                                                                                                     r:
                                                                                                     i
               '   I




The Defendant objects generally to the Definitions and Instructions set forth at 1he beginning of     i

this written discovery request for the reason that they are overly broad, unduly burdensome, and
                                                                                                      i
harassing. Further, the Defendant objects to these Definitions and Instructions for tbe reason that   I'
there is no provision in the Texas Rules of Civil Procedure requiring a party to abide by such
definitions and instructions. The Defendant also objects to the Definitions and Instructions to the
extent that they seek to impose a greater burden and obligation on tbe Defendant than is
permissible under the Texas Rules of Civil Procedure,
                                                                                                      I
                                                                                                      l
                                                                                                      l
                                                                                                      l
        Without walving or limiting the foregoing general objection, the Defendant specifically       i
objects to Plaintiff's discovery as follows:                                                           r
                                                                                                      !'
                                                                                                           "·
                                                                                                           ~;:
                       OBJECTIONS AND RESPONSES TO PLAINTIFF'S                                             i"•

                           FIRST REQUEST FOR PRODUCTION                                                    (

                                                                                                      i
                                                                                                      I
1.     The entire claims file and/or adjuster logs including, but not limited to, photographs,        I
       statements, notes, memoranda, tables, computer-generated information and other written         i
       documents contained iherein, that were generated in connection with fue injmy to the           II
       Plaintiff that forms the basis of this lawsuit.                                                II
       RESPONSE:                                                                                      I
                                                                                                      I
       The Defendant objects to this request on the grounds it violates the attomey clie11t,
       attorney WOl'k product, witness statement and party communication privileges,
                                                                                                      I
       Tue Defendant further objects to this Request as being over broad, vague, ambiguous and
       outside the scope of proper discovery. See Loftin v. Marlin, 776 S.W.2d 145, 148 (Tex.
                                                                                                      1·
       1989).                                                                                         I
       The Defendant further objects to this Request as being outside the scope of discovery as
       it concerns matters that are not relevant to the irurtant litigation nor is the request
       reasonably calculated to lead to the discove1y of admissible evidence pursuant to the          I
                                                                                                      !
       Texas Rules of Civil Procedure.
                                                                                                      I
       The Defendant furtl1er objects to this interrogatory in that the Plaintiff bas the burden of
       proof to evince that relevant to any issue in this cause. In order for the Plaintiff to
       recover under their DIM claim, they must prove that the purported                              I
       underinsnred/uninsured motorist negligently caused the accident that resulted .in tbeir        j"
       purported damages. See Allstate Ins. Co. v. Bonner, 51 S.W.3d 289, 291-92 (Tex.2001);
       Wel/tsch v. United Servs. Auto. Ass'n, 75 S.W.3d 53, 57 (Tex.App.-San Antonio 2002,
       pet. denied).
                                                                                                     . i'




     The Defendant further objects to this request to the extent that the documents called for
     therein is not relevant to any issue in tlus cause. The Plaintiff has yet to obtain judgment
     establishing the liability and underinsured/uninsured status of the other
     motorist. Brainard v. Trinily Universal Insurance Company, 216 S.W.3d.809 (Tex.
     2006). See also Henson v. Soulhern Fmw Bureau Casualty Insurance Company, 17
     S.W.3d 652, 653-54 (Tex. 2000).

     The Defendant further objects as Plaintiff is not entitled to discovery of privileged
     information regarding bad-faith claims so long as the insurance company's liability under
                                                                                                       I·
     ihe underlying liability claim remains undetermined. See M01yland Am. Gen. Ins. Co, v,            !··
                                                                                                       ',.   ;
     Blackmon, 639 S.W.2d455, 457-58 (Tex.1982).
                                                                                                             f~
     Without waiving said objections, Defenda11t refers Plaintiff to photographs produced as                 ''··
     Exhibit 1.                                                                                              I
     Without waiving said objections, Defendant refers Plaintiff to Police Report, produced as               i
                                                                                                             I1·
     Exhibit2.
                                                                                                             I
                                                                                                             I'
2.   All written documentation of any investigation or reconstrnction of the collision (other          ;     i
     than those conducted by govemmental/law enforcement entities or retained experts) from
     which this lawsuit arises.
                                                                                                       !
                                                                                                       I'
     RESPONSE:                                                                                         I     ;.
     The Defendant objects to this request as it is overly broad, vague and unduly                           j

     burdensome.

     The Defendant further objects to this request on the grounds it violates ihe attorney client,           i
                                                                                                             I
     attorney work product, witness statement and party communication privileges,
                                                                                                              t··
                                                                                                              I
     Defendant objects to this Request as being outside the scope of discovery as it concerns                rI
     matters that al'e not relevant to the instant litigation nor is the request rea%nably                   I.
                                                                                                             I
     calculated to lead to the discovery of admissible evidence pursuant to the Texas Rules of
                                                                                                             !
     Civil Procedure.
                                                                                                             u
                                                                                                             r.:
     The Defendant further objects to this request to the extent that the documents called for
     fuerein is not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment
     establishing the liability and underinsured/uninsured status of the other
     motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
     2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, I 7
     S.W.3d 652, 653-54 (Tex. 2000).

     The Defendant fmiher objects as Plaintiff is not entitled to discoveiy of privileged
     information regarding bad-faith cltrims so long as the insurance company's liability under
                                                                         - - - - - - - - - - - - - - --,




     the underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
     Blackmon, 639 S.W.2d455, 457-58 (Tex. 1982).

     Without waiving said objections, see documents attached.

3.   All photographs, motion pictures, video recordings, maps, drawings, charts, diagrams,
     measurements, surveys, or other documents concerning the events and happenings made
     the basis of this lawsuit, the vehicles in question, the scene of the collision at issue, or the
     urea, persons, or objects involved either made at the time of or since the collision at issue.

     RESPONSE:
                                                                                                        l
     The Defendant objects to this request as it is overly broad, vague WJd onduly
     burdensome.
                                                                                                        I
                                                                                                        1·
                                                                                                        i
     The Defendant further objects to this request on the grounds it violates the attorney client,
     attomey work product, witness statement and party cormnunication privileges.

     The Defendant further objects to this Request as being outside the scope of discovery as
     it concerns matters that are not relevant to the instant litigation nor is the request
     reasonably calculated to lead to the discovery of admissible evidence pursuant to the
     Texas Rules of Civil Procedure.

     The Defendant further objects to this request to the extent that the documents called for
     therein is not relevant to any issne in this cause, The Plaintiff has yet to obtain judgment
     establishing the liability and underinsnred/uninsured statns of the other
     motorist. Brainard v. Trini01 Universal Insurance Company, 216 S.WJd.809 (fex.
     2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
     S.W.3d 652, 653-54 (fex, 2000).

     111e Defendant further objects 8B Plaintiff is not entitled to discovery of privileged
     information regarding bad-faith claims so long 8B the insurance company's liability under
     the underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
     Blackmon, 639 S.W.2d 455, 457-58 (fex. 1982).

     Without waiving said objections, see documents attached.

4.   All surveillance movies, photographs, videotapes, electronic or digiial images, or other
     images of Thom8B Jackson or of the collision or scene of the collision in Defendant's or
     Defendant's agents' or attorneys' possession.

     RESPONSE:

     The Defendant refers Plaintiff to attached police report.
5.   All incident reports (other than those created by governmental/law enforcement entities
     or retained experts) and/or witness statements relating to or discussing the collision made
     the basis of this lawsuit and/or the injuries that Plaintiff claims resulted from said
     collision.

     RESPONSE:                                                                                            1:'
                                                                                                          i
     The Defendant objects to this request as it is overly broad, vague and unduly                        I::
     burdensome.

     The Defendant further objects to this request on the grounds it violates the attorney client,
     attorney work product, witness statement and par(y communication privlleges.

     The Defendant further objects to this Request as being outside fue scope of discove1y as
     it concerns matters that are not relevant to the instant litigation nor is the request
     reasonably calculated to lead to !be discovery of admissible evidence pursuant to the
     Texas Rules of Civil Procedure.

     The Defendant further objects to this request to the extent tl1at the documents called fo:t
     therein is JJ.ot relevant to any issue in thls cause. The Plaintiff has yet to obtain judgment
     es!J3.blishing the liability and underinsured/uninsurcd status of the other
     motorist. Brainard v. Trinity Universal Insurance Company, 216 S. W.3d.809 (Tex.
     2006). See also Henson v. Southern Farm Bureau Casualty Insurance Campany, 17
     S.W.3d 652, 653-54 (Tex. 2000).                                                                      'j.,,
     The Defendant further objects as Plaintiff is not entitled to discovciy of privileged
     in:foI111ation regarding bad-faith claims so long as the insurance company's liability under
     the underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Ca. v.
     Blaclanon, 639 S.W.2d 455, 457-58 (Tex. 1982).

     Without waiving said objections, see documents attached,

6.   All correspondence, memoranda, reports, e-mails, fucsimile transmissions, and all other
     documents evidencing communications regarding the insuraoce claim(s) or any aspect of
     said claim(s) that is the subject of Ibis litigation between Defendant and its (a) adjusters,    I
     (b) employees, (c) officers, (d) agents,€ representatives,(!) independent adjusters (other
     than those retained for !be purpose of litigation), and/or (g) independent adjusting firms
                                                                                                      I
     (otheI !ban those l'etained for the purpose of litigation).
                                                                                                      '
                                                                                                      !



     RESPONSE:

     The Defendaot objects to this request as it is overly broad, vague and unduly
     burdensome.
--------------~··-,
                                                                 '   I



                                                    ..... -.·1
                                                                              ·.T - - - - - - - - - - - - - -
                                                             '




      The Defendant further objects to this req11est on the grounds it violates the attorney client,
      attorney work product, wit11ess statement and party communication privileges.

      The Defendmt further objects to this request to the extent that it is outside the scope of
      discovery a.s it regards matters that are not relevant to the subject matter of this present
      lawsuit, seeks infmmation which is not relevant to the claims asse11ed by the Plaintiff,
      and is not reasonably calculated to lead to the discovery of admissible evidence pursuari
      to the Texas Rules of Civil Procedure.

      The Defendant further objects to this request to the extent that the documents called for        ;
      therein is not relevant to any issue Jn this cause. The Plaintiff has yet to obtain judgment     I·
      establishing the liability and underinsured/uninsured status of the other                        i
      motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.Jd.809 (Tex.                       r
      2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17                         Ii,
      S.W.3d 652, 653-54 (Tex. 2000).                                                                  I    1.
                                                                                                            !r:
      The Defendant furU1er objects as Plaintiff is not entitled to discovery of privileged            I
                                                                                                       I    i
      info1mation regarding bad-faith claims so long as the insurance company's liability under             '.~:


                                                                                                       II
                                                                                                            (;
                                                                                                            ::-:
      the underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
      Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982).                                                         IJ
                                                                                                       II   !
      Without waiving said objections, see documents attached.
                                                                                                       i
 7.   All documents regarding every telephone conversation with or regarding Plaintiff.                I
      RESPONSE:                                                                                        I
      The Defendant objects to this request as it is overly broad, vague and unduly
      burdensome.

      The Defendant objects to this request on the grounds it violates the attorney client,
      attorney work product, witness statement and party conununication privileges.
                                                                                                       ;:
      The Defendant further objects to this request to the extent 1hat it is outside the scope of      L
      discovery as it regardJl matters that are not relevant to the subject matter of this present     j
      lawsuit, seeks info:rmation which is not relevant to the claims asserted by the Plaintiff,
      and is not reasonably calculated to lead to the discovery of admissible evidence pursuant
      to the Texas Rules of Civil Procedure.

      The Defendmt :further objects to this request to the extent that the documents called for
      therein is not relevant to any issue in tbis cause. The Plaintiff has yet to obtain judgment
      establishing the liability and underinsured/uninsured status of the other
      motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
                                                          ~----~~--------·-,




                   .. I




     2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
     S.W.3d 652, 653-54 (Tex. 2000).

     The Defendant further objects as Plaintiff is not entitled to discovery of privileged
                                                                                                       1.
     information regarding bad-faith claims so long as the insurance company's liability under
     the underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
     Blockmon, 639 S.W.2d455, 457-58 (Tex. 1982),
                                                                                                       Ii
8.   All docim1ents regarding the ammmt(s) set aside and/or placed in reserve regarding
     Plaintiff's claim foruninsured/underinsured motmist coverage benefits herein.
                                                                                                       I
     RESPONSE:                                                                                         I
                                                                                                       :
     The Defendant objects to this request as it is overly broad, vague and unduly                     i
     burdensome.

     The Defendant further objects to this request to the extent that it is outside the scope of
     discovery as it regards matters that are not l'<;levant to the subject matter of this present
     lawsuit, seeks information which is not relevant to the claims asserted by the Plaintiff,
     and is not reasonably calculated to lead to the discove.ry of admissible evidence pursuant        '
     to the Texas Rules of Civil Procedure.

     T11e Defendant further objects to this request to the extent that the documents called for        I
     therein is not relevant to any issue in this cause. The Plaintiffhas yet to obtain judgment
     establishing the liability and underinSlrred/uoinsured status of the other                        I
     motorist. Broinardv. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
     2006). See also Henson v. Southern Farm Bureau Casually Insurance Company, 17
     S. W.3d 652, 653-54 (Tex. 2000).

     The Defendant further objects as Plaintiff is not entitled to discovety of privileged
     information regarding bad-faith clain1s so long as the insurance company's liability under
     the underlying liability claim remains nndetermined. See M01yland Am. Gen. Ins. Co. v.
     Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982).

     The Defendant farther objects to this request on tile gronnds it violates tile attorney client,
     attorney work product, witness statement and pm1:y co=unication privileges.

                                                                                                       ''
                                                                                                       i
                                                                                                       I
                                                                                                       1·
                                                                                                       i

                                                                                                       I
                                                                                                       iI
                       -----~----------,




9.    All non-privileged investigative repmis regarding tl1e collision made the bai;is of this
      lawsuit including documents, memoranda, photographs, video recordings, movies,
      statements, reports, drawings, communications, and tangible things attached to such
      reports or referred to therein.

      RESPONSE:

      The Defendant objects to this request as it is overly broad, vague and unduly
      burdensome.

      The Defendant forthcr objects to thL5 request to the extent that it is outside the scope of
      discovery ai; it regards matters that are not relevant to the subject matter of this present
      lawsuit, seeks infonnation which is not relevant to the claims asserted by the Plaintiff,      r
      and is not reasonably calculated to lead to the discovery of admissible evidence pm·suant
      to the Texas Rules of Civil Procedure.
                                                                                                     ..
      The Defendant forther objects to this rec1uest to the extent that the documents called for     '

      therein is not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment
      establishing the liability and underinsured/uninsured status of the other
      motorist. Bra/n(JJ'd v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
      2006). See also Henson v. Southern Farm Bureau Casually Insurance Company, .17
      S.W.3d 652, 653-54 (Tex. 2000).

      The Defendant fU.rther objects as Plaintiff is not entitled to discovery of privileged         "
      infonnation regarding bad-faith claims so long as tl1e insurance company's liability under
      the underlying liability claim remains undetennined. See Maryland Am. Gen. Ins. Co. v.
      Blackmon, 639 S.W.2d455, 457-58 (Tex. 1982).
      Without waiving said objections, the Defendant refers Plaintiff to documents attached.

10.   Complete and legible photocopies or audible recordings of every written or oral statement
      obtained by yon or on your behalf from any person designated by any party as having
      knowledge ofrelevant facts pursuant to Texas Rule of Civil Procedure 194.2(e).

      RESPONSE:

      Defendant will supplement response.
11.   If already produced herein, a complete copy of every primary, umbrella, and excess
      insurance policy or agreement, including all declaratioru page(s), endorsements,
      ame11dments, riders, and attachments iI1 effect when the subject collision occurred and
      providing coverage to Plaintiff for injuries suffered in 1he subject collision.

      RESPONSE:

      The Defendant objects to 1his request to the extent that it is outside the scope of discovery
      as it regards matters that are not relevant to the subject matter of this present law:mit,
      seeks information which is not relevant to the claims asserted by the Plaintiff, and is not
      reasonably calculated to lead to the discoveiy of admissible evidence pursuant to the
      Texas Rules of Civil Procedure.

      Defendant will supplement response.

12.   All written docwuents in Defendant's possession signed by or on behalf of Plaintiff.

      RESPONSE:

      None.

13.   All non--waiver agreements, reservation of right~ letters, and other documents or
      comm11nications regardir1g any contrnctual obligation owed to you by Plaintiff or
      condltion precedent to recove1y wi1h which Plaintiff must comply.

      RESPONSE:

      The Defendant objects to this request as it. is overly broad, vague and unduly
      burderuome.

      The Defendant :further objects to this request to the extent that it is outside the scope of
      discove1y as it regards matters that are not relevant to the subject Jnatter of this present
      lawmit, seeks information which is not relevant to the claims asserted by the Plaintiff,
      and is not reasonably calculated to lead to the discovery of admissible evidence pursuant
                                                                                                      !
      to the Texas Rules of Civil Procedure.

      The Defendant further objects to this request to 1he extent that the documerds called for
      therein is not relevant to any iss1ie in this cause. The Plaintiff has yet to obtain judgment
      establishing the liability and underinsured/uninsured status of the other
      motorist. Brainardv. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
      2006). See also Henson v. Southern Farm .Bureau Casualty Insurance Company, 17
      S.W.3d 652, 653-54 (Tex. 2000).

      The Defendant further objects as Plaintiff is not entitled to discovery of privileged
      info1mation regarding bad-faith claims so long as the insurance company's liability under
      the underlying liability claim remains undetermined. See Marylatui Am. Gen. Ins. Co. v.
      Blackmon, 639 S.W.2d 455, 457~58 (Tex. 1982).

      The Defendant further objects to this request on the grounds it violates the attorney client,
      attorney work product, witness statement and party communication privileges.

14.   All documents relating to any initial determination, temporary determination, tentative          l.i
      determination, or final determination regarding whether Plaintiff's claim herein is
                                                                                                       i'
      payable or not payable,                                                                          ;


      RESPONSE:

      111e Defendant objects to this request as it is overly broad, vague and unduly
      burdensome.

      The Defendant furtber objects to this request on the gronnds it violates the attorney client,
      attorney work product, witness statement and party communication plivileges.

      The Defendant further objects to this request to the extent that it is outside the scope of
      discovery as it regards matters that are not relevant to tbe subject matter of this present
      lawsuit, seeks information which is not relevant to the claims asserted by the Plaintiff;
      and is not reasonably calculated to lead to the discovery of admissible evidence pursuant
      to the Texas Rules of Civil Procedure.

      The Defendant furtber objects to this interrogatory in that the Plaintiff has the burden of
      proof to evince that relevant to any issue in this cause. In order for the Plaintiff to
      recover under their DIM claim, they must prove that the pmported
      underinsured/uninsnred motorist negligently caused the accident that resulted in their
      purported dan1ages. See Allstate Ins. Co. v. Bonner, 51 S.W.3d 289, 291-92 (Tex.2001);
      Welltsch v. United Servs. Auto. Ass'n, 75 S.W.Jd 53, 57 (Tex.App.-San Antonio 2002,
      pet denied).                                                                                     II
      The Defundant further objects to this request to the extent that the documents called for        I
      therein is not relevant to any ill sue in this cause. The Plaintiff has yet to obtain judgment   I
                                                                                                       ~    .
      establishing the liability and underinsured/tu1insured status of the other
      motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
                                                                                                        I
                                                                                                       .:   '


      2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
      S.W.3d 652, 653-54 (Tex. 2000).

      Without waiving said objections, please see attacheddoclllllenis.
                            --------------,




         .. .;   . _.. ..
                     :                                                 .'   '




15,   All documents and testimony regarding Plaintiff, Patricia Tompkins, or any aspect of the
      collision made the subject oflhis h1wsuit that Defendant has obtalned through the use of
      subpoenas and/or depositions on wdtten questions. (Plaintiff will pay a reasonable fee for
      photocopies ofresponsive documents.)
                                                                                                     i.
      RESPONSE:

      Plaintiff should be in possession of all medical records and other records pe1iaining lo
      Plaintiff. If and when Defendru1t obtains such records, Defendant will make these
      records available to the Plaintiff for inspection upon reasonable notice and will furnish
      copies to any party who requests copies at that party's expense pursuant to TRCP Rule
      205.3(e). Additionally, Plaintiff will be given an equal opportunity to obtain these records
      at the time they are made available to !bis Defendant by the records service.
                                                                                                     !
16.   To the extent not already produced by either pai:ty herein, all medical and/or billing
                                                                                                     ,.
                                                                                                     i'

      records regarding ThomM Jackson, whether obtained before or since the :filing of this
      lawsuit (Plfilntiff will pay a reasonable fee for photocopies of responsive documents.)

      RESPONSE:
                                                                                                     !.
      Plaintiff should be in possession of all medical records and other records pertaining to
      Plaintiff. If and when Defendant obtains such records, Defendant will make these
                                                                                                     I:
      records available to the Plaintiff for inspection upon reasonable notice and will furnish
      copies to any party vvho requests copies at that pru·ty' s expense pursuant to TRCP Rule
      205.J(e), Additionally, Plaintiff will be given an equal oppmtunity to obtain these records
      at tbe time they are made available to this Defendant by the records service.

17,   To the extent not already produced by Defendant herein, all documents obtained by or on
      behalf of Defendant through the nse of an authorization furnished to Defendant by
      Plaintiff.

      RESPONSE:

      Plaintiff should be in possession of all records pertaining to Plaintiff. IT and when
      Defendant obtains such records, Defendant will make these records available to the
      Plaintiff for inspection upon reasonable notice and will furnish copies to any pm:ty who
      requests copies at that party's expense pursuant to TRCP Rule 205.3(e), Additionally,
      Plaintiff will be given an equal opportunity to obtain these records at the tirne they are
      made available to this Defendant by fue records service.
    . ..
---,,.-~----------~·~---
  ··· ... ·: ~                                                                          .   ··.•                   .,.·,   .




           18.   All documents, records, repmts, notations, and/or memoranda regarding the Plaintiff
                 from persons and/or entitles that compile information regarding bodily injury claims,
                 health insurance claims, liability/property/casualty insurance claims, worker's
                 co111pensation claims, and other :insurance claims, including but not !imi:ted to the
                 Insurance Services Office ("ISO"), Southwest Index Bureau, and all similar persons or
                 entities.

                 RESPONSE:

                 The Defendant objects to this request as it is av.orly broad, vague and unduly
                 burdensome.

                 The Defendant further objects to this request 011 the gro1inds it violates the attorney client,
                 attorney work produc~ witness statement and party communication privileges.

                 The Defendant further objects to this reqllest to the extent that it is outside the scope of
                 discovery as it regards matters that arc not relevant to the subject matter of this present
                 lawsuit, seeks informati011 which is not relevant to the claims asserted by the Plaintiff,
                 and is not reasonably calculated to lead to the discoveiy of admissible evidence pursuant
                 to the Texas Rules of Civil Procedure.

                 Defendant asse1ts its pdvileges relating to computer programs, manuals, and database
                 information to the extent that it constitutes Trade Secrets and other proprietary
                 information. See Tex. R. Civ. Evidence 507; Tex. R. Civ. P. 76(a)(2)(c); Computer
                 Assoc. Int. 7v. Altai, Inc., 918 S.W.2d453, 455 (Tex.1996), RESTATEMENT (213) OF
                 TORTS - 757, comment (b). Plaintiff has the burden of establishing the information
                 reqi1ested herein is necessary for a fuir adjudication of th.is claim which bas not been
                 established to date. Defendant asserts that the benefit that Plaintiff might obtain from this
                 infmmation, if any, doe s not and cannot outweigh harm of disclosure to the defendant.
                 See In re Leviton Mfg. Co. inc., 1 S.W.3d 898, 902 (Tex. App.-Waco 1999, odg.
                 proceeding).

           19.   All peer reviews, audits, medical summaries, memoranda, notes, letters, and other
                 documents relating to or compiled from the medical records that Plaintiff has submitted
                 for payment pursuant to .the policy at issue herein and/or injuries that Plaintiff claims
                 were caused by the collision made the basis of this lawsuit.

                 RESPONSE:

                 The Defendant objects to this request as it is overly broad, vague and unduly
                 burdensome,

                 The Defendant further objects to this request on the grounds it violates the attorney client,
                 attorney work product, witness statement and party communication privileges.
      The Defendant futther objects to this request to the extent that it is outside the scope of
      discovery as it regards matters that are not relevant to the subject matter of this present      i
                                                                                                             I
      lawsltlt, seeks information which is not relevant to the claims asse1ted by the Plaintiff,
      and is not reasonably calculated to lead to the discovery of admissible evidence pursuant        I
                                                                                                       I
                                                                                                             I
                                                                                                             I'
                                                                                                              i
      to the Texas Rules of Civil Procedure.
                                                                                                             I,.
      The Defendant farther objects to this request to the extentthat the doclllllents called for      I     I'
      therein is not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment
                                                                                                       t
                                                                                                       l     r·
                                                                                                       l·
                                                                                                             i•
      establishing the liability and underinsured/m1insured status of the other                        1I
      motorist. Brainard v. Trinity Universal Insurance Company, 216 S. W.3d.809 (Tex.
      2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17                    I     1·

      S.W.3d 652, 653-54 (Tex. 2000).                                                                  I
                                                                                                       I
                                                                                                       I
      The Defendant farther objects as Plaintiff is not entitled to discovery of privileged            I     ,.
      information regarding bad-faith claims so long as tbe insurance company's liability under
      the underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
      Blackmon, 639 S.W.2d455, 457-58 (Tex. 1982).
                                                                                                       I
                                                                                                       I
20.   All liability work-ups or reports relating to Plaintiff's claim for uninsured/underinsured       I
                                                                                                       I
      motorist coverage benefits.                                                                      I


      RESPONSE;
                                                                                                       I'
                                                                                                       i
      The Defendant objects to thls request as it is overly broad, vague and m1dnly
      burdensome.

      The Defendant ftu:fuer objects to this request on the grounds it violates the attorney client,   I
      attomey work product, witness statement and party conununication privileges.

      The Defendant ftuiher objects to this request to the extent that it is outside the scope of
      discovery as it regards matters that are not relevant to the subject matter of thi~ present
      lawsuit, seeks infurmation which is not relevant to the claims asserted by the Plaintiff,
      and is not reasonably calculated to lead to the discovery of admissible evidence pursuant        !
      to the Texas Rules of Civil Procedure.                                                           "!.
                                                                                                       l

                                                                                                       ,.
      The Defendant farther objects to thls request to the extent that the documents called for        !

      therein 1' not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment
      establishing the liability and underinsured/uninsm:ed status of the other
      motorist. Brainardv. Trinity Unrversal Insurance Company, 216 S.W.3d.809 (Tex.
      2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
      S.W.3d 652, 653-54 (Tex. 2000).

      The Defendant farther objects as Plaintiff is not entitled to discovery of privileged
      infonnation regarding bad-faith claims so long as the insurance company's liability under
.. :.·... -i   ' ; ..                                     I   ,·_-   ......... "*'"•~·" ••• ,.   • '   !   •i   < •• ;,




                              the underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
                              Blackmon, 639 S.W.2d455, 457-58 (Tex. 1982).

                        21.   All doc1unents relating to your use, if any, of computer software programs in reviewing,
                              analyzing, and/or evaluating claims of injury in motor vehicle collisions during 2013 and
                              2014.

                              RESPONSE:

                              The Defendant objects to this request on the grounds it violates the attorney client,
                              attorney work produCt, witness statement and party communication privileges.

                              The Defendant further objects to this request as it is overly broad, vague and unduly
                              b11rdensome.

                              The Defendant further objects to this request to the extent that it is outside the scope of
                              discovery as it regards matters that are not relevant to the subject matter of this present
                              lawsuit, seeks information wbich is not relevant to the claims asserted by the Plaintiff,
                              and is not reasonably calculated to lead to lhe discovery of admissible evidence pursuant
                              to lhe Texas Rules of Civil Procedure.
                                                                                                                              i
                              TI1e Defendant asserts its privileges relating to computer programs, manuals, and               I
                              database information to the extent that it constitutes Trade SeCiets and oilier proprietary     I
                              information. See Tex. R. Civ. Evidence 507; Tex. R. Civ. P. 76(a)(2)(c); Computer
                              Assoc. Int. 7 v. Altai, Inc., 918 S.W.2d 453, 455 (Tex. 1996), RESTATEMENT Q.13) OF
                              TORTS - 757, comment (b). Plaintiff bas the burden of establishing tbe information
                              requested herein is necessary for a fair adjudication of thls claim which has not been
                              established to date. Defendant asserts that the benefit that Plaintiff might obtain from this
                              information, if any, doe s not and cannot outweigh harm of disclosure to the defendant.
                              See In re Leviton Mfg. Co. Inc., 1 S.W.3d 898, 902 (Tex. App.~Waco 1999, orig.
                              proceeding).

                              The Defendant further objects to this request to the extent that the documents called for
                              therein is not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment
                              establishing the liability and underinsured/uninsuredstatus of the other
                              motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
                              2006). See also llenson v. Southern Farm Bureau Casualty Insurance Company, 17
                              S.W.3d 652, 653-54 (Tex. 2000).

                              111e Defendant further objects as Plaintiff is not entitled to discovery of privileged
                               infurmation regarding bad-faith claims so long as tlle insurance company's liability under
                                                                                                                              "•
                              the underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
                              Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982).
                                            . i



                  • • :.J   I. •                          ..•   ''. ··1




22.   All documents relating to your use, if any, of computer software programs in reviewing,
      a11alyzing, and/or evaluating Plaintiff's claims of injury in the motor vehicle collision that
      forms the basis of this lawsuit

      RESl'ONSE:

      The Defendant objects to this request on the gro11Dds it violates the attorney client,
      attorney work product, witness statement and party colillJlunication privileges,

      The Defendant further objects to this request as lt is overly broad, vague and unduly
      burdensome.

      l11e Defendant further objects to this request to the extent that lt is outside the scope of
      discovery as it regards matters that are not relevant to the subject matter of this present
      lawsuit, seeks infom1ation which is not relevant to the claims asserted by the Plaintiff,
      and is not reasonably calculated to lead to the discovery of admissible evidence pursuant
      to the Texas Rliles of Civil Procedure,

      Defendant asserts its p1ivileges relating to computer progran1S, manuals, and database
      infonnation to the extent that it constitutes Trade Secrets and other propdetary
      information. See Tex. R. Civ. Evidence 507; Tex. R. Civ. P. 76(a)(2)(c); Computer
      Assoc. Int. 7 v. Altai, Inc., 918 S.W.2d 453, 455 (Tex, 1996), RESTATEMENT (213) OF
      TORTS - 757, comment (b), Plaintiff has the burden of establishing the information
      requested herein is necessary for a fair adjudication of this claim which has not been
      established to date. Defendant asse1ts that the benefit that Plaintiff might obtain from this
      information, if any, doe s not and cannot outweigh harm of disclosure to the defendant.
      See In re Levi/on Mfg. Co, Inc., 1 S.WJd 898, 902 (Tex. App.-Waco 1999, orig.
      proceeding).

      The Defendant further object5 to 1hls request to 1he extent that the documents called for
      therein is not relevant to any issue in this cause. The Plaintiffhas yet to obtainjndgment       I
                                                                                                       I·

      establishlng1he liability and underinsiJredfuninsured status of the other                        1.
      motorist, Brainardv. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.                   I
                                                                                                       !
      2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
      S.WJd 652, 653-54 (Tex. 2000).

      The Defendant further objects as Plaintiff is not entitled to discovery of privileged
      information regarding bad-faith claims so long as 1he insurance company's liability under
      the underlying liability claim remains undetermined. See Maryland Am. Gen Ins. Co. v.            ,.
      Blackmon, 639 S.W.2d 455, 457-58 (Tex, 1982).                                                    !
                                                                                                       '
_.,


                                                                            . · .... ~:-·--                    <   !




      23,   All documents containing your policies, procedures, processes, and/or mles used by your
            employees to assist in their evaluation of uninsured/underinsured motorist claims.

            RESPONSE:

            The Defendant objects to this request as it is overly broad, vague and unduly
            burdensome.

            The Defendant further objects 1D this request on the grounds it violates tl1e attorney client,
            attorney work product, witness statement and party communication privileges.

            The Defendant further objects to tbis request to the extent tbat it is ontside the scope of
            discovery as it regards matters tbat are not relevant to the subject matter of 1his present
            lawsuit, seeks information which is not relevant to 1he claims assetted by tbe Plaintiff,              i
                                                                                                                   I.
                                                                                                                   ;
            and is not reasonably calculated to lead to tlie discovery of admissible evidence pursuant
            to 1he Texas R11les of Civil Procedure.

            The Defendant further objects to tbis request to the extent tbat the documents called for
            therein is not relevant to any issllf) in tbis cause. The Plaintiff has yet to obtainjudg.tllent
            establishing the liability and underins1n-ed/uninsured status of!he other
            motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
            2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
            S.W.3d 652, 653-54 (Tex, 2000).

            The Defendant further objects as Plaintiff is not entitled to discovery of privileged
            information regarding bad-faith claims so Jong as fue insurance company's liability under
            the underlying liability claim remains undetermined. See Maryland Am, Gen. Ins. Co, v.
            Blackmon, 639 S.W.2d 455, 457-58 (Tex, 1982).

      24.   All dociunents containing your policies, procedures, processes, and/or rnles 1IBed by your
            employees to assist in their evaluation of antomo bile collision bodily injury claims.

            RESPONSE:

            The Defendant objects to this request as it is overly broad, vague and unduly
            burdensome.

            The Defendant further objects to this request on the grounds it violates the attorney client,
            attorney work product, witness statement and party comm\!Jlication privileges.

            The Defendant fiuther objects to this request to the extent that it is outside the scope of
            discovery as it regards matters that are not relevant to the subject matter of this present
            lawsuit, seeks information which is not relevant to the claims asserted by the Plaintiff,
.   .,   ;-:.




                  and is not reasonably calculated to lead to the discovery of admi'lsible evidence pursuant
                  to the Texas Rules of Civil Procedure.

                  The Defendant further objects to this request to the extent that the documents called for
                  the1·ein is not relevant to auy issue in fuls caru;e. The Plaintiff has yet to obtain judgment
                  establishing the liability and underinstn·ed/uninsurcd status of the other
                  motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Iex.
                  2006). See also Henson 11. Southern Farm Bureau Casualty Insurance Company, 17
                  S.W.3d 652, 653-54 (Tex. 2000).
                                                                                                                   l
                  TI1e Defendant further objects as Plaintiff is not entitled to discovery of privileged           i'
                  info1mationregarding bad-faith claims so long as the insurance company's liability under
                  the underlying liability clalm rcmalns undetermined. See Maryland Am. Gen. Ins, Ca. v.
                  Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982).

            25.   Pursuant to Texas Rule of Evidence 609(f), all documents supporting each criminal
                                                                                                                   I
                  conviction of any person identified by any party herein as having knowledge of relevant
                  facts that you intend to use for impeachment

                  RESPONSE:

                  The Defendant does not have any documents in its possession, custody or control
                  responsive to this request.

            26.   All reports, memoranda, and other documents related to your evaluation of any claim for
                  be1iefits made by Plaintiff other than the claun at issue herein.

                  RESPONSE:

                  The Defendant objects to this request as it is overly broad, vague and unduly
                  burdensome.

                  The Defendant further objects to this request on the grounds it violates the attorney client,
                  attorney work product, witness statement and party communication privileges.

                  The Defendant further objects to ·this request to the extent that it is outside the scope of
                  discovery as it regards matters that are not relevant to fhe subject matter of this present
                  lawsuit, seeks information which is not relevant to the claims asserted by fhe Plaintiff,
                  and is not reasonably calculated to lead to fhe discovery of admissible evidence pursuant
                  to the Texas Rules of Civil Procedure.

                  The Defendant further objects to this request to the extent that the documents called for
                  thereil1 is not relevant to any issue in this cause. The Plaintiff has yet to obtain.judgment
                  establishing the liability and underinsured/uniusured status of the other
                                                           I - I


        .. -.·1




      motorist. Brainardv. Trinity Universal lmmrance Company, ;>.16 S.W.3d.809 (Tex,
      2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
      S.W.3d 652, 653-54 (Tex. 2000).
                                                                                                             (·.
      The Defendant further objects as Plaintiff is uot entitled to discovery of privileged                  '·
      infonnation regarding bad-faith claims so long as the insurance company's liability under
      the underlying liability claim remains undetermined, See Maryland Am. Gen. Ins. Co. v.
      Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982).

27.   All documents relating to every initial determination, temporary detem1ination, tentative
      determination, or final determination regarding whether any of Plaintiff's claims other
      than that at issue herein Wa'l payable or notpayable.

      RESPONSE:                                                                                              l:
                                                                                                             !

      The Defendant objects to this request as it is overly broad, vague and unduly
      burdensome.

      TI1e Defendant further objects to this request on the groui1ds it violates fue attorney client,
      attorney work product, witlless statement and party communication privileges.
                                                                                                        ,.
      The Defendant further objects to this request to the extent tbat it is outside the scope of
                                                                                                        ,
      discovery a'l it regards matters that are not relevant to 1he subject matter of this present
      lawsuit, seeks information which is not relevant to the claims a'lserted by tbe Plaintifl;
      and is not rea'lonably calculated to lead to the discovery of admissible evidence pursuant
      to the Texas Rules of Civil Procedure.

      The Defendant further objects to tlris request to the extenttbatthe documents called for
      therein is not releva11t to any issue in this cause. The Plaintiff has yet to obtain judgment
      establishing the liability and uuderirumred/uninsured status of the other
      motorist. Brainardv. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
      2006). See also Henson v. Southern Farm Bureau Casually Insurance Company, 17
      S.W.Jd 652, 653-54 (Tex. 2000).

      The Defendant fiuther objects a~ Plaintiff is not entitled to discovery of privileged
      infom1ation regarding bad-faith claimll so long as the insurance company's liability under
      the rmderlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
                                                                                                        '·
      Blackmon, 639 S. W.2d 455, 457-58 (Tex. 1982).

      Without waiving said objections, please see attached documents.
                             I   I                                                                                    c '




·1                                                       ,J   I . ·:
                                                                                                               :,
                                                                                                               'i:
                                                                                                               I.
                                                                                                               I'

                                                                                                               Ij·
     28.   All documents regarding and/or discussing your refusal to pay 1hc $20,000.00 that you
           offered on April 28, 2014.

           RESPONSE:

           The Detenda11t objects to this request as it is overly broad, vague mid Ullduly
           burdenson1e.

           The Defendant futther objects to this request 011 the grollllds it violates the attorney clie11t,
           attorney work product, witness statement and party coll1lliunication privileges.

           The Defe11dai1t further objects to this request to tl1e extent that th.e documents called for
           tl1erei.n is not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment
           establishing the liability and underinsured/uninsured statl1s of the other
           motorist. Brainardv. Trinity Universal Insurance Company, 216 S,W.3d.809 (Tex.
           2006). S.e also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
           S.W.3d 652, 653-54 (Tex. 2000).

           The Defendmit furfuer objects as Plaintiff iB not entitled to discovery of privileged
           information regarding bad-faith claims so long as the insurance company's liability under
           the underlying liability claim remains undetermined. See Maryland Am. Gen. In.<. Co, v.
           Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982).

           The Defe11dmit further objects to this rnquest to the extent that it is outside 1he scope of
           discovery as it regards matters that are not relevmit to the subject matter of this present
           lawsuit, seeks information which is not relevant to the claims asserted by the Plaintiff,
           and is not reasonably calculated to lead to the discovery of admissible evidence pursuant
           to the Texas Rules of Civil Procedure.

           WithoLtl waiving said objections, please see attached documents.

     29.   All documents reflecting, regarding, and/or discussing premium payments made by
           Plaintiff fur the automobile insurance policy in effect when the collision that is the              r
           subject of this lawsuit occurred.

           RESPONSE:                                                                                           i
                                                                                                               ],
           Tue Defendant objects to this request as it is overly broad, vague arid unduly                      ii
           burdensome.
                                                                                                               ,.I·
                                                                                                               I'·
           The Defendant further objects to thiB request on the grounds it violates the attorney client,       "1·
                                                                                                               :1

           attorney work product, witness statement and party communication privileges,                        1!I'
                                                                                                               !!

           The Defendant further objects to thiB request to the extent that it is outside the scope of         !!
           discovery as it regards matters that are not relevant to the subject matter of 1his present         ·'
                                                                                                  I   '




                           ..
---.-~------ci-.-c,-ccc-.-~--.-...         :er
                                            ..,-..,.,,. .-~
                                                         ...----~.~...,.,....,..~~----~----~...:::r:·.:-:~c--··--;~-.




               lawsuit, seeks information which is not relevant to the claims asse1tecl by the Plaintiff,
               and is not reasonably calculated to lead to the discovery of admissible evidence pursuant
               to the Texas Rules of Civil Procedure.

               The Defendant further objects io this request to the extent that the documents called for
               therein is not relevant to any issue in this caase. The Plaintiff has yet to obtain judgment
               establishing the liability and underinsured/uninsured status of the other
               motorist. Brainardv. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
               2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
               S.W.3d 652, 653-54 (Tex. 2000).

               The Defendant further objects as Plaintiff is not entitled to discovery of privileged
               info1mation regarding bad-faith claims so long as the insurance company's liability under
               the underlying liability claim remains undetennined. See Maryland Am. Gen. Ins. Co. v.
               Blackmon, 639 S.W.2d455, 457"58 (Tex. 1982).

         30.   All documents necessary to determine the name, address, telephone number, ilnmediate
               SLtpervisor, and current employer of all of Defendant's adjusters, employees, agents,
               aod/or representatives that have -reviewed Plaintiffs claim :file from a claims handling or
               claims review standpoint.

               RESPONSE:

               The Defendant objects to this request as it Js overly broad, vague and unduly
               burdensome.

               The Defendant further objects to this reqQest on the grounds it violates the attorney client,
               attorney work product, witness statement and party commllnication privileges.

               The Defendant further objects to this request to the extent that it is outside the scope. of
               discovery as it regards matters that are not relevant to the subject matter of this present
               lawsuit, seeks inforn1ation which is not relevant to the clain1s asserted by tlle Plaintiff,
               and is not reasonably calculated to lead to the discovery of admissible evidence pursuant
               to the Texas Rules of Civil Procedure.

               The Defendant ftuther objects to this request to tlle extent that the documents called for
               therein is not relevant to any issue in this cause. The Plaintiff has yet to obtainjndgment
               establishing the liability and uuderinsured/uuinsured status of the other
               motorist. Brainard v. Trinity Universal Insurance Company, 216 S. W.3d.809 (Tex.
               2006). See also Hemon v. Southern Farm Bureau Casualty Insurance Company, 17
               S.W.3d 652, 653-54 (Tex, 2000).

               The Defendant further objects as Plaintiff is not entitled to discovery of privileged
               information regarding bad-faith claiffiB so long as the insurance company's liability under
                                                                                            ···-·.·1




                                                                                                         I
      fue underlying liablli1y claim remains undetermined. See Maryland Am. C'rtm. Ins, Co. v.
      Blackmon, 639 S.W.2d 455, 457-58 (Tex, 1982).

31.   All documents and/or materials pertaining to any negotiations for settlement or offers of
      settlement that were compiled or created prior to the time of the filing of this lawsuit.               L
                                                                                                              l
                                                                                                              L·
      RESPONSE:
                                                                                                              I
      The Defendant objects to this request as it is overly broad, vague and unduly                           I
      burdensome.

      The Defendant further objects to this request an the grounds it violates the attorney client,
      attorney work product, witness statement and party communication privJleges.

      lile Defendant further objects to this request to the extent that it is outside the scope of
      discovery as it regards matters that are not relevant to the subject matter of this present
      lawsuit, seeks infonnation which is not relevani to the claims asselted by the Plaintiff,
      and is not reasonably calculated to lead to the discove1y of admissible evidence pursuant
      to the Texas Rules of Civil Procedure.

      The Defendant futther objects to this request to the extent that the documents called for
      therein is not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment
      establishing fue liability and underinsured/uninsured status of the other
      motorist. Brainardv. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
      2006). See also Hen,wn v. Southern Farm Bureau Ca.Yua/ty Jnsw·ance Company, 17
      S. W.3d 652, 653-54 (Tex. 2000).
      The Defendant fuither objects as Plaintiff is not entitled to discovery of privileged
      infonnation regarding bad-faith claims so long as the insurance company's liability under
      the underlying Jiabili1y claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
      Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982).

      Without waiving said objections, please see attached.                                              I
32.   All documents, reports, or investigations relied upon by Defendant in denying or delaying          II
      payment of ru1y benefits to Plaintiff related to the claim thl\t is the subject of this lawsuit.

      RESPONSE:
                                                                                                         I
      The Defendant objects io this request as it is overly broad, vague and nnduly
      burdensome.

      The Defendant further objects to this request 011 the grounds it violates the attorney client,
      attorney work product, wit11ess statement and party communication privileges.
                                                   -----~---------·-,




                              -·   ! .




      The Defendant furthel' objects to this request to tbe extent that it is outside the scope of
      discovery as it regards matters that are not relevant to the subject matter of this present
      lawsuit, seeks information whlch is not relevant to the claims asserted by the Plaintiff,
      and is not reasonably calculated to lead to the discovery of admissible evidence pursnant
      to the Texas Rules of Civil Procedure.

      The Defendant further objects to this intmogatory in that the Plaintiff has the burden of
      proof to evince that relevant to any issue in U1is cause. In order for the Plaintiff to
      recover under their U1M claim, they must prove that the purported
      llJlderinsured/uninsured motorist negligently caused the accident that resulted in their
      purported damages. See Al/stale Ins. Co. v. Bonner, 51 S.W.3d 289, 291-92 (Tex.2001);
       Wellisch v. United Servs. Auto. Ass'n, 75 S.W.3d 53, 57 (Tex.App.-San Antonio 2002,
      pet. denied).

      The Defendant furilier objects to this request to !he extent that the documents called for
      therein is not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment
      e&tablishing the liability and underinsured/uninmred status of the other
      motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
      2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
      S.W.3d 652, 653~54 (Tex. 2000).

      The Defendant further objects as Plaintiff is not entitled to discovery of p1ivileged
      information regarding bad-faith claims so long as the insurance company's liability under
      the underlying liability claim remains undetermined. See Maryland A1n Gen. Ins. Co. v.
      Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982),

33,   All documents regarding any contract that you have with any independent adjuster who
      performed any service on your behalf related to Plaintiff's clairuhetein.

      RESPONSE:

      The Defendant objects to this request "" it is overly broad, vague and unduly                   ~-

      bmdensotne.

      The Defendant further objects to this request on the grounds it violates the attorney client,
      attorney wol'!c product, witness statement and party colll1Il1lnication p1ivileges.

      The Defendant further objects to thIB rnquest to !he extent that it is outside the scope of
      discovery as it regards matters that are not relevant to the subject matter of this present
      lawsuit, seeks information whlch is 11ot relevant to the claims asserted by the Plaintiff,
      and is not reasonably calctilated to lead to the discovery of adtnissible evidence pursuant
      to the Texas Rules of Civil Procedure.
.·,




            The Defendant further objects to this rec1uest to the extent thirt the documents called :for
            therein is not relevant to any issue iu this cause. The Plaintiff has yet to obtain judgment
            establishing the liability and undcrinsured/uninsured status of the other
            motorist Brainard v. Trinity Universal lnswance Compar!JI, 216 S.W.3d.809 (Tex.
            2006). See also Henson v. Soulhern Farm Bw·eau Casualty Insurance Company, 17                   I

            S.W.3d 652, 653-54 (Tex. 2000).                                                                 i

            The Defendant further objects as Plaintiff is not entitled to discovery of p1ivileged
            information regarding bad-faith claims so long as t11e insurance company's liability under
            the underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co, v.
            Blackmon, 639 S.W.2d455, 457-58 (Tex. 1982).

      34,   All documents described or utilized in responding to Plaintiffs Interrogatories, Requests
            for Production, and Requests for Admission.

            RESPONSE:

            The Defendant objects to this request as it is overly broad, vague and unduly
            burdensome.

            The Defendant further objects to this request on the grounds it violates the attorney client,
            attorney work. product, witness statement aud party communication privileges.

            The Defendant fmiher objects to this request to the extent trurt it is outside the scope of
            discovery as it regards matters that are not relevant to the subject matter of this present
            lawsuit, seeks information which is not relevant to the claims asserted by the Plaintiff,
            and is not reasonably calculated to lead to the discovery of admissible evidence pursuant
            to the Texas Rules of Ci~il Procedure,

            The Defendant further objects to tbis request to the extent that the doctunents called for
            therein is not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment
            establishing the liability and tmderinsured/uninsured status of the other
                                                                                                            i '.
            motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.                 !

            2006). See also Henson v. Southern Farm Bureau Casual!y Insurance Company, I 1
                                                                                                            iI.
                                                                                                             ,.
            S.W.3d 652, 653-54 (Iex, 2000).

            The Defendant further objects as Plaintiff is not entitled to discovery of privileged
            information regarding bad-fhlth clallnB so long as the insurance company's liabilify under
            the underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
            Blackmon, 639 S.W.2d 455, 457-58 (Tex, 1982).

            Withont waiving said objections, please see attached documents.
-------------~,-------,




                                                                                                           -..~--~-.



                                                                                                           -: :j.   -~~.~.:·.··.   .




                                               CAUSE NO. 201-1365-A

            THOMAS JACKSON,                             §             JN THE DISTRICT COURT OF
            Plaintiff                                   §
                                                        §
            vs.                                         §              188th JUDICIAL DISTRICT
                                                        §
            AAA TEXAS COUNTY MUTUAL                     §
            INSURANCE COMPANY                           §
            Defendant.                                  §              GREGG COUNTY, TEXAS


                            l>EFENDANT'S OB.JECTlONS and ANSWERS TO
                   PLAtNTIFF TIIOMAS .JACKSON'S FlRST SET OF INTERROGATORIES

            TO:    Thomas .Jack$on, Plaintiff, by and through bis altomeys of record, M. Raymond Hatcher
                   and Alan J. Robertson, Sloan, Bagley, Hatcher & Perry Law Firm, 101 East Whaley
                   Street, Longview, Texas 75601.

                   COMES NOW AAA Texas County Mutual Insurance Company, Defendants lnthe above

            numbered and styled cause, and serves its Objections and Answers to Plaintiff's First Set of

            Intenogatories, in accordance with the Texas Rules of Civil Procedure.

                                                               Respectfully submitted,

                                                               WALTERS, BALIDO & CRAJN, L.L.P.



                                                              /k;~
                                                               CARLOS A. BALlDO
                                                               State Bar No. 01631230
                                                               Meadow Park Tower, Suite 1500
                                                               10440 North Central Expressway,
                                                               Dalli.s, TX 75231
                                                               Tel: 214-749-4805
                                                               Fax: 214-760-1670
                                                               cm1os.balido!i4wbclaw1irm.com

                                                               ATTORNEY FORDEFENDANf
----,                                    ---------------·-,

                                                              I                     ., ; ·.·
                                                                                 \"f<,..
                                                                                 ..       ,.,
                                                                                       ..,,.;.;; ...




                                        CERTIFICATE OF SERVICE

                This is to certify that a true and conect copy of the foregoing document hru; been mailed,
        faxed, or band delivered to all parties of record, in compliance with Rule 21a of the Texas Rules
        of Civil Procedure, on December~. 2014.

        Via First Cf(lss U.S. Mail
        M. Raymond Hatcher
        Alan J. Robertson
        Sloan,. Bagley, Hatcher & Peny Law Firm
        101 East Whaley Street
        Longview, Texas 75601




                                                     CARLOS A. BALIDO
                                                                         '   I




                          I ...                  .-.i !,~-·                                  ;_   ....
                                            •.,·,'',·1'.    . ··,
                                                           !~.;E'~J-·                                    . I




The Defendant obJccts generally to the Definitions and Instructions set forth at the beginning of
this written discovery request for the reason that they are overly broad, unduly burdensome, and
harassing. Furthet, the Defendant objects to i:hese Definitions and Instructions for the reason that
there is no provision in tl>e Texas Rules of Civil Procedme requiring a party to abide by such
definitions and instructions. TI1e Defendant also objects to the Definitions and fosn-11ctions to the
extent that they seek to impose a greater burden and obligation on the Defendant than is
pcrmissible under the Texas Rules of Civil Procedm·e.

Without waiving or limiting the foregoing general. objection, the Defendant specifically objects
to Plaintiff's discovery as follows:


                      OBJECTIONS AND ANSWERS TO PLAINTIFF'S
                          FIRST SET OF INTERROGATORIES

l.      Identify each person answering these interrogatories, supplying information, and/or
        assisting in any way with tl1e preparatinn of the answers to these interrogatories and/or
        the responses to Plaintiff's Requests for Production and/or Requests for Admission.

        ANSWER:

        The Defendant objects to this interrogatory to the extent that it is outside the scope of
        discove1y as it concerns matters that are not relevant to the subject matter of this present
        lawsuit, it seeks informati011 which is not relevant to the clainrn asserted by the Plaintiff,
        and is not reasonably calculaied lo lead to the discove1y of admissible evidence pursuant
        to the Texas Rules of Civil Proce<l\tre.

        Without waiving said objection, the Defendant answers as follows:

               Frededck Annour
               AAA Texas County Mutual Insurance Company

        The Defendant was assisted by cmmsel in the preparation of the Defendant's objections
        and responses to Plaintiff's written discovery requests.

2.      Identify each eyewitness to all or part of the collision made th" basis of this lawsuit of
        whom yoq are aware and, for each eyewitness, state his/her location when the collision
        made tbe basis oftltls lawsuit occmred.

        ANSWER:

        The Defendant objects to this interrogatory as it is overly broad, vague and unduly
        burdensome.
   j
.,,.




             T1ie Defondruit fltrther objects to this interrogatory as it calls for a narrative response, and
             is an attempt by Plaintiff to improperly limit Defendant's testimony.

             Without waiving said objections, Defendant refers Plaintiff to the individuals identified
             as relevant fact witnesses in response to Plaintiffs Request for Disclosure.

       J.    To the extent not already produced herein, describe each separate file containing records,
             documents, and/or information relating to Plaintiff and/or Plaintiff's claims, iucluding in
             yout description for each file, the file's name, the file number, its descriptive title
             assigned to it in the ordinary course of your business, each custodiru1ofthe file, the file's
             contents, and its current location.

            . ANSWER:

             The· Defendant objects to this interrogatory as it is overly broad, vague and unduly
             bw·densome.

             The Defendant further objects to this interrogatory as it calls for a narrative response, and
             is an attempt by Plaintiff to improperly limit Defendant's testimony'.

            The Defendant further objects to this request on the grounds it violates the attorney client,
            attorney work product, witness statement and party commullication p11vileges.

            The Defendant further objects to this interrogatory to the extent that it is outside the
            scope of discovery as it regards matters that are not relevant to the subject matter of this
            present lawsuit, it seeks inforrnatio11 which is not relevant to the claims asserted by tbe
            Plaintiff, and it is not reasonably calculated to lead to the discovery of admissible
            evideoce pursuant to the Texas Rules of Civil Procedure.

            · The Defendant finthet objects to this inteITogatory in that fue Plaintiff has tl1e burden of
              proof to evince that relevant to any issue in this cause. In order for the Plaintiff to
              recover under their DIM clailn, they must prove that the purported
              u11derinsured/llllinsured motorist negligently caused the accident that resulted in their
              purported damages. See Allstate In.s. Co. v. Bonner, 51 S.W.3d289, 291-92 (Tex.2001);
              Wellisch 11, United Servs. Auto. Ass'n, 75 S.W.3d 53, 57 (fex.App.-Sau Antonio2002,
              pet. denied)

            The Defendant further objects to this request to the extent fuat the documents called for
            therein is not relevant to any iss11e in this cause. Tue Plaintiff has yet to obtain judgment
            establishlligthe liability and underinsured/uninsured status of the other
            motorist. Brainard v. Trinity Universal lnrorance Company, 216 S.W.3d.809 (Tex.
            2006). See also Henson v. Southern Fann Bureau Casualty Insurance Company, 17
            S.W.3d 652, 653-54 (Tex. 2000).
                           ----------------~-,




                                                                    I ......
                                                                    f~~~_;.
                                                      ...   ~·-:.                                    ~   ·•·.·   .




     Defendant objects as Plaintiffs are not entitled to discovery of ptivileged information
     regarding bad-faith claims so long as the insurance company's liability under the
     undeJ:lying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
     Blackmon, 639 S.W.2d 455, 457-58 (fex. 1982).

     Without waiving said objections, the Defendant refers Plaintiff to documents produced.

4.   Jf you, your attorneys, or anyone acting on your behalf 01· on your attorneys' behalf took
     or obtained photographs, videotape, mag110tic, digital, or electronic images, or other
     images of the collision scene, vehides, or parties involved, please provide the name,
     address, a11d telephone number of tbe person having custody of such images, the date on
     which the images were taken or made, and the name of tbe person( s) taldng or making
     such images.

     ANSWI<~R:


     The Deferrdant objects to this request as it is overly broad, vague and unduly
     burdensome.

     The Defendant further objects to this interrogatory to the extent that it is outside the
     scope of disco very as it regards matters that are not relevant to the subject matter of this
     present lawsuit, it seeks information which is not relevant to the clairni: asse1ted by the
     Plafotiff, and it is not reasonably calculated to lead to fue discovery of admissible
     evidence pursuant to the Texas Rules of Civil Procedure.

     Tl1e Defendant further objects to tbis intmogatory in that the Plaintiff has tlie burden of
     proof to evince that relevant to any issue in fuis cause. Jn order for the Plaintiff to
     recover under their DIM claim, they must prove that the purported
     unde1insured/uninsured motorist negligently caused the accident that resulted in their
     purported damages. SeeAllstateins. Co. v. Bonner, 51 S.W.3d 289, 291~92 (Tex.2001);
     Wellisch v, United Servs. Auto. Ass'n, 75 S.W.3d 53, 57 (Tex.App.-San Antonio 2002,
     pet. denied)

     The Defendant further objects to this request to the extent that the documents ruilled for
     therein is not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment
     establishing the liability and underi11"'1red/uninsured status of the other
     motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
     2006). See also Henson v. Southern Fann Bureau Casualty insurance Company, 17
     S. W.3d 652, 653-54 (Tex, 2000).

     TI1e Defendant further objects as Plaintiffs are not entitled to discovery of privileged
     information regarding bad-faith claims so long as tbe insurance company's Uability under
     tbe underlying liability claim remains undetermined. See Maryland An' Gen. Ins. Co. v.
     Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982).
                                             --,


     ·J
                                                                                                                ...   _,......   ____
                                                                                                          ·,l     i•""•




          Without waiving said objections, the Defendant refers the Plaintiff to photographs and
          documents produced in Defendant's Responses to Plaintiff's Request for Production.

5.        Identify by name, employer (if different from Defendant) business address, job title, and
          telephone munber of each iI1dividUJ1l who will be Defendant's in-court representative.

          ANSWER;

          The Defendant objects to this request as it is overly broad, vague and unduly
          burdensome.

          Without waiving said objections, Defendant's in-comt representative will be Frederick
          Armour.

6.        Identify by name, employer (if different from Defendant) business address, job title,
          telephone number aud role of each of Defendant's employees, agents, repl'esentatives,
          adjusters, independent adjusters, independent a<ljusili1g firms, consultants, and any entity
          or indivjdual acting under any oral or written agreement, who perlormed any claims
          work, participated in the evaluation of Plaintiff's claim, and/or claims services of
          any type or nature with respect fo the insurance claims involved ln this litigation.

          ANSWER:

          111e Defcndru1t objects to 1his request as it is overly broad, vague and unduly
          burdensome,

          The Defendant further objects to this request on the grounds it violates the attorney client,
          attorney work product, witness statement and party communication privileges.

          The Defendant further objects to this interrogatory to the extent that it is outside the
          scope of discovery as lt regards matters that are not relevant to the subject matter of this
          present lawsuit, it seeks information which is not relevant to the claims asserted by the
          Plafotiff, and it is not reasonably calculated to lead to the discovery of admissible
          evidence pursuant to the Texas Rules of Civil Procedm·e.

          The Defendant further objects to this interrogatory h11batthe Plaintiff has the burden of
          proof to evince tlmt relevant to ruly issue in tlUs cal1se. In ordel' for the Plait1tiff to
          recovet under their UIM claim, they must prove that the purpm1ed
          underlnsurecl/uninsured motorist negligently caused the accident that resulted in their
          purported damages. See Allstate Ins. Co. v. Bonner, 51S.W.3d289,291-92 (Tex.2001);
          Wei/is-ch v. Umtcd Servs. Auto. Ass'n, 75 S.W.3d 53, 57 (Tex.App.-San Antonio 2002,
          pet. denied)

          The Defenda11t further objects to this request to the extent that the documents callee! fur
          therein is not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment
                                                           ~~----~~-------··-,
                                    I   '




                       .,   ·;:,-
                                              j
                                                                                            '.
                                              '




     establishing the liability and underinsured/uninsured status of the other
     motorist. Brainardv. Trinily Uni.versa/ Insurance Compaey, 216 S.W.3d.809 (Tex.
     2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
     S.W.3t{ 65:>,, 653-54 (Tex. 2000).

     The Defendant further objects as Plaintiffs are not entitled to discovery of. privileged
     information regarding bad"faith claims so long aB the insurance company's liability under
     the tmderlying liability claim remains i.mdetermined. See Maryland Am. Gen. Ins. Co. v.
     Blackmon, 639 S.W.2d 455, 457-58 (Tex. J982).

     The Defendant further objects to 1his Jntei:rogatory as it calls for a narrative response, and
     is an attempt by Plaintiff to impropeily limit Defendant's testimony.

     Without waiving said objections, Neiman Miller, AAA Texas County MuttJal Insurance
     Company; Frederick Arm.our, AAA Texas County Mutual Insurance Company; aud Clint
     Smith, Property Damage Appraisers.

7.   Identify every medical doctor, physician, osteopath, physician's assistant, and!or nurse
     who has reviewed medical records of Thomas Jackson in CO!llIBction with the claim for
     uninsnred/uuderlnsured motodst benefits that are the subject of this lawsuit.

     ANSWER:

     TI1e Defendant objects to this request on the grounds it violates the attorney client,
     attorney wotlcprodiict, witness statement.and party connnunication privileges.

     The Defendant further objects to this h1te1mgatory to the ex(ent that it is outside the
     scope of discovery as it regards .OJ.alters that are not relevant to the subject matter of this
     present lawsuit, it seeks information which is not relevant to the claims asse1ied by the
     Plaintiff, and it is not reasonably calculated to lead to the discovery of admissible
     evidence pursuant to the Texas Rules of Civil Procedure.

     The Defendant further objects to this interrogatory in that the Plaintiff has the burden of
     proof to evince that relevant to any issue in this cause. !11 order for the Plaintiff to
     recover under their UIM claim, they must prove that the purported
     i.inderinsured/unimmred motorist negligently caused the accident thattesulted in their
     purported damages. See Allstate Ins. Co. v. Bonner, 51S.W.3d289,291-92 (Tex.2001);
      Wellisch v. UrritedServs. Auto. Ass'n, 75 S.W,3d 53, 57 (Tex.App.-San Antonio 2002,
     pet. denied),

     The Defendant further objects to this request to the extent that the documents called for
     therein is not relevant to any issue in tbis cause. The Plaintiff has yet to obtain judgment
     establishing the liability and underinsmedfuninsured status of the other
     motodst. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex:.
                                                                                                              . . . . .... '
                                                                                                                          '


                                    I   ~··-··

                                    b}~··,
                                    ~~~;<~.                                                        I   ..-.




     2006). See also Henson v. Southern Farm Bi1reau Casualty Insurance Company, 1. 7
     S.W.3d 652, 653-54 (Tex. 2000).

     Tlie Defendant further objects as Plaintiffs are uot eutitled to discovery of privileged
     information regarding bad-faith claims so long as the insutance company's liability under
     the ui1derlying liability claim remains \llldetermined. See Maryland Am. Gen. Ins. Co. v.
     Blackmon, 639 S.W.2d455, 457-58 (Tex, 1982).

     The Defendant further objects to this lnterrogato1y as it calls for a nanative response, and
     is an. attempt by Plaintiff to impropedy limit Defendant's testimony.

     Defendimt further objects to fuis Request to fue extent that it seeks infonnation that
     exceeds the scope of discovery. Further, the Texas Rules of Civil Procedure, Rule 195.1
     provides that a party may request iJ1for:rnation concerning testifying expert witnesses only
     tlirough a request for disclosure and through deposition.

     Plaintiff should be in possession of all meilical records and other records pertaining to
     Plaintiff If and when Defendant obtains such records, Defendant will make these
     records available to the Plaintiff for inspection up011 reasonable notice and will furnish
     copies to any party who requests copies at that party's expense pursuant to TRCP Rule
     205.3(e). Additionally, Plaintiff will be given an equal opportunity to obtnin these records
     at the time they are made available to this Defendant by the records service.

S.   Identify each of your employees who played any role in evaluating Plaintiff's claim,
     authorized any proposed payment to be made to Plaintiff, and/ot made decisions
     regai-ding any adjuster's a11thority to pay or deny Plaintiff's claim relating to
     uninsured/1.Jnderillsured motorist coverage purchased by Plaintiff.

     ANSWER:

     Defendant objects to this Request as being over broad, vague, ambiguous and outside fue
     scope of proper discovery. See Laflin v. Mar/In, 776S.W.2d145, 148 (Tex. 1989).

     The Defendant farther objects to this request 011 the grotinds it violates the attorney client,
     attomey work procluct, witness statement and party communication privileges.

     The Defendant further objects to tliis interrogatory to the extent that it is outside the
     scope of discovery as it concerns matte!'s that are not relevant to tbe subject matter of this
     present lawsuit, it seeks infonnation which is not relevant to the claims asserted by the
     Plaintiff, and is not reasonably calculated to lead to the discovery of admissible evidence
     pursuant to the Texas Rules of Civil Procec!ure.

     Defendant farther objects as Plaintiffs are not entitled to discovery of privileged
     information regarding bad-faith claims so long as the insurance company's liability under




                            ,.
                                                 -,----                   .,




     the underlying liability claim remains undetetnlined, See Mcrryfand Am. Gen, Ins. Co. v.
     Blackmon, 639 S.W.2d 455, 457-58 (Tex:. 1982).

     The Defendant fatiher objects to this interrogatmy in fuat the Plaintiff has the burden of
     proof to evince that relevant to any issue in this cause. In order for the Plaintiff to
     recover under their DIM claim, they must prove that the purported
     underinsured/uninsured motorist negligently caused the accident that resulted in their
     purpoited damages. See Allstate Ins. Co. v. Bonner, 51 S.W.3d 289, 291-92 (Tex.2001);
     Wellisch v. United Servs. Auio. Ass'n, 75 S.W.3d 53, 57 (Tex.App.-San Antonio 2002,
     pet. denied)

     The Defendant further objects to this request to the extent that the documents called for
     therein is not relevantto any issue iu this cause. The Plaintiff has yet to obtain judgmeut
     establishing the liability and underinsured/unins\lred status of the other
     motorist. Brainardv. Trinity Unf11ersaf Insurance Company, 216 S.W.3d,809 (Tex.
     2006). See also Ifenson v. Southern Farm Bwreau Casualty Insw-ance Company, 17
     S.W.3d 652, 653-54 (Tex. 2000).

     Without waiving said objections, Neiman Jvfiller, AAA Texas County Mutual Insurance
     Company and Frederick A1mour, AAA Texas County Mutual Insurance Company.

9.   If you have :information that has not already beeu produced herein regarding any other
     claims for personal iiajury of any type fuat were made or may have bee11 made by the
     Plaintiff 01· by Patricia Tompkins since the collision made the basis of this suit, please
     state all information you have regarding each such claim, specifically including but not
     limited to;

     a. The date of the claim;
     b. The type of fue claim;
     c. The name oft!1e persou making the claim;
     d. The other parties bivalved in ti1e claim;
     e. The injuries claimed in the incident made the basis of this claim
     f. The identity of all medical providers iuvolved in treating an.y injury claimed in the
        incident made the basis of the claim
     g. Each llisurer and claim number assigned to 1he claim; and
     h. 111e disposition of the claim.

     ANSWER:

     The Defendaut objects to tbis request as it is overly broad, vague and unduly
     burdensome.

     Defendant objects to this Request as being outside the scope of discove1y as it concerns
     matters that are uot relevaut to the i11Stant litigation nor is the request reasonably
                        !   I




                                                      ·...•ii-   '~~?.. '
                                                      . '.~lrl   ~-'5'il:.{,-i.:




           calculated to lead to the discovery of admissible evidence pursuant to the Texas Rules of
           Civil Procedure.

           The Defendant furfuer objects to this in.te1wgatory as it calls for a nan1l.tive response, and
           is an attempt by Plaintiff to imprope.tly limit Defondanfs testimony.

           Without waiving said objectio·ru;, none.

     10.   Pursuant to Texas Rule of Evidence 609(f), identify by stating the date, cause nmnber,
           offense, illld co mt foT eacl1 ctinrinal conviction of the Plaintiff and any person designated
           by any party as h!lving knowledge of facts relevant to this matter pursuant to Texas Rl\le
           of Civil Procedure 194.2(e),

           ANSWER:

           The Defendant is not aware of any a\ this tirne.

     11.   Pursuant to Texas Rules of Civil Procedure 194.2(d) and 192.3(a); if you contend that
           you are entitled to a credit or offset against judgment, state for each such credit/offset:

           a. The dollar amount;
           b. Each category(ies) of damages to which yo11 claim the creditloffset applies; and
           c. How you arrived at and/or calculated the dollar !lillOUllt of the credit/offset.

           ANSWER:

           The Dcfeudant objects to this request as it is overly broad, vague and -qnduly
           burdensome.

           The Defendant further objects to this iutenogatory as it calls for a narrative response, and
           is !Ul attempt by Plaintiff to improperly limit Defend!Ult's testimony.

           Without waiving said objections, Defendant refers Plain.tiff to response to Plaintiff's
           194.2.

     12.   State each and every fuctor which yon now contend or will contend at trial caused or
           contributed to causing the Plaintiff's damages including but not limited to pre-e:x:!Bting
           physical or medical conditions of the Plaintiff and, for each such factor, state in general
           the factual basis for your contention.                                          ·

           ANSWER:

           The Defendant objects to this request as it is overly broad, vague and l\nduly
           burdensome,




I;
I   ,               ----------------··-,



                              !   :~- .. '


                              ;~~k;,~                                                        I



              Tlie Defendant further objects to this inte11:ogatory as it cal!s fol' a narrative response, and
              is an attempt by Plaintiff to improperly limit Defendanfs testimony.

              Without waiving said objections, Defendant AAA Texas County Mutual lnsnrance
              Company does 110t have personal knowledge of how the accident occurred. Defendant
              refers Plaintiff to any deposition testimonies obtained in tbis matter, as well as documents
              produced by any party.

        13.   If you contend that the Plaintiff's actions and/or omissions caused or co11tributed to
              causing the collision fro1n which Plaintiff's claim for. uuinsured/underinsured motorist
              benefits arises, describe in gelleral the factual basis for your contention.

              ANSWER:

              The Defendant objects to this request as it is overly broad, vague and unduly
              burdenso1ne.

              The Defendant :futther objects to this interrogatory as it calls for a narrative response, and
              is an a!tempt by Plaintiff to impropm·ly limit Defeudanfs testimony.

              Without waiving said objections, Defendant AAA Texas County Mutual Insmance
              Company does not have personal knowledge of how the accident occurred. Defendant
              refers Plaintiff to any deposition testimonies obtained in this matter, as well as documents
              produced by any party, Further, Defendant makes no contentious at this time.

        14.   lfnot already contained in documents produced herein, state all ptocedmes followed and
              each criteria utilized by Defendant in its investigation and evaluation of Plaintiff's claim.

              ANSWER:

              The Defendant objects to this request as it is overly broad, vague and unduly
              burdensome.

              The Defendant further objects to this request on the groUllds it violates the attorney client,
              attomey work product, witness statement and paity commU11ication privileges.

              The Defendant further objects to this intei:rogatozy as it cal!s for a narrative response, and
              is an attempt by Plaintiff to impraperly limit Defendant's testimony.

              Defendant objects to this Request as being outside the scope of discovery as it concerns
              matters that are not relevant to lbe instant litigation nor is the request reasonably
              calculated~ lead to tl1e discovery of admissible evidence plltsuant to the Texas Rules of
              Civil ProcedUl'e.
------------~·-,
                                                                               -------------~                   -,



                                       ·1 ::;:/·.             f ..
                                                             !




                 The Defendant further objects to this interrogatory in that the Plaintiff has the burden of
                 proof to evince that relevantto any issue in this cause. In order for the PJainliff to
               · recover under their DJM claim, they must prove that the purported
                 um!erinsured/uninsured motorist negligently caused the accident tbat resulted in tlieir
                purported damages. See Allstate Ins. Co. v. Bonner, 51 S.W.3d 289, 291-92 (Tcx.2001);
                 Wel/isch v. United Servs. Auto. Ass'n, 75 S. W.3d 53, 57 (Tex.App.-San Antonio 2002,
                 pet. denied)

               The Defendant further objects to this request to the extent that the documents called for
               therein is not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment
               establishing the liability and underinsured/uninsured status of the other
               motorist. Brainard v. Trinity Umi•ersa/ Insurance Company, 2.16 S.W.3d.809 (Tex.
               2006). See also [{enson v. Southern Farm Bureau Casualty Insurance Campany, 17
               S.W.3d 652, 653-54 (Tex. 2000).

               Defendant objec1s as Plaintiffs are not· entitled to discovery of privileged information
               regarding bad-faith claims so long as the insurance company's liability under the
               underlying liability claim remains undetermined.. See Maryland Am. Gen. lns. Co. v.
               Blac/anon, 639 S.W.2d45S, 457-58 (Tex. 1982).

         15.   List. identify, and describe all documents not already produced herein that suppo1t your
               contention, if any, that:

               a. Plaintiff failed to meet or perform condition(s) precedent to his bringing this lawsuit;
               b. Plaintiff failed to comply with a term or condition of the-insurance agreement that is
                  the subject otfuis lawsuit; and/or
               c. Plaintiff's claim is excluded from uninsurcd/underinsured motorist coverage pursuant
                  to a term or condition offue insurance agreement that is the subject of this lawsuit.

                ANSWER:

                The Defendant objects to this request as it is overly broad, vague and unduly
                burdensome.

               'Tiie Defendant further objects to this request on the gmunds it violates the attorney client,
                attomey work product, witness statement and party communication privileges.

                The Defendant further objects to this interrogatory as it calls for a narrative response, and
                is an attempt by Plaintiff to improperly limit Defendant's testimony.

                The Defondant ftu·ther objects to this request to fue extent tliat the documents called for
                therein is not relevant to any issue in this cause. The Plaintiff has yet to obtirinjudgment
                establishing the liability and underinsured/uninsured status of 1he other
                motorist. Brainard v. Trinity Universal Insurance Campany, 216 S.W3d.809 (Tex.
··-,



       .I   1,;:




                     2006). See also Henson v. Southern Farm Bureau Casualty insurance Compal'f)', 17
                     S.W.3d 652, 653-54 (Tex. 2000).

                     Defendant objects as Plaintiffs are not entitled to discovery of p11vileged information
                     regarding bad-faith claims so long as tl1e iasurance company's liability llllder the
                     1mderlyiag liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
                     Blackmon, 639 S.W.2d 455, 457-58 (fox. 1982).

                     Withollt waiving said objections, Defendant is not making those contentions at this time.

               16.   State every reason for your denial of Plaintiff's uninsured/llllderinsured motorist claim in
                     excess of your April 28, 2014, offer to pay $20,000.00 (in addition to $5,000.00 in
                     previously paid personal injury protection benefits and $30,000.00 previously paid by
                     Patricia Tompkins' insurance cartler).

                     ANSWER:

                     The Defendant objects to this request as it is overly broad, vague and unduly
                     burden1mrne.

                     The Defendant further objects to this request on the grounds it violates the attorney client,
                     attorney work produc~ witness statement ai1d party communication privileges.

                     The Defendant fm1:her objects to tliis interrogatory as it calls for a naimtive response, and
                     is an atten1pt by Plaintiff to improperly lilllit Defendant's testimony.

                     Defendant further objects to thiB Request as being outside the scope of discovery a' it
                     concems matters that are not relevant 1o the Instant litigation nor i.s the request reasonably
                     calculated to lead to the discovery of admissible evidence pursuant to tbe Texas Rules of
                     Civil Procedure.

                     TI1e Defeadant further objects to this request to the extent tl1at fue documents called for
                     therein is not relevant to any iBsue in this cause. The Plaintiff has yet to obtain judgment
                     establishing the liability aru:l llllderinsured/uninsured status of the otber
                     motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
                     2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
                     S,W.3d 652, 653-54 (Tex. 2000).

                     Defendant objects a' Plaintiffs are not entitled to discovery of privileged information
                     regarding bad-faifu claims so long as the insurance cnmpany's liability under the
                     lmderlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
                     Blackmon, 639 S.W.2d455, 457-58 (Tex, 1982).
      '•.~;-.,,

      ·""'''•'•
       •,;:_eft,,.~"·-
                                              I .'              . !
      ··.•1E;..•




17.   If you used any computer software program to assist in the evaluation of Plaintiff's claim
      fo1· tminsure<l/underi.nsured motorist benefits arising from bodily injury, state for each
      program:

      a. The name of the program used;
      b. The specific data utilized by the program in evaluating Plaintiff's claims;
      c. All data fields tbatthe program deems reJeva.nt lo evaluating injury claims
      d. The identity of each person who input data regarding Plaintiff into 1he program;
      e. Th" means by which tbe results of the program's analysis are presented to fue
         program user and/or claims adjuster(s);
      f. The identity of each person who received results regarding Plaintiff's claim; and
      g. The methods by which results of the program's analysis are distributed to each end
         user of the info11nation other than the program user and claims a4juster(s).

      ANSWER:

      Defendant objects to this Request as being over broad, vague, ambiguous and outside the
      scope of proper discovery.

      Defendant further objects to this Request as being outside the scope of discovery as it
      concerns matters that are not relevant to the inst:mt litigation nor is the request reasonably
      calcttlated to lead to the discovery of acl1nissible evide11ce pursuallt to the Texas Rules of
      Civil Procedure.

      The Defond:mt furtb.er objects to this interrogatory as it calls for a narrative response, and
      is an attempt by Pl.Pntiff to improperly limit Defendant's testimony.

      The Defendant f\nther objects to this reqtiest to the extent that the documents called fur
      therein is not relevant to any issue in this cause, The Plaintiff has yet to obtainjudgtnent
      establishing the liability and uuderfnsmed/l1ninsured status of the other
      motorist. Brainarcfv. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
      2006). See also Henson v. Southern Farm B1.1reau Casualty Insurance Company, 17
      S.W.3d 652, 653-54 (Tex. 2000).

      Defendant objects as Plaintiffs are not entitled to discovery of privileged information
      regarding bad-faith claims so long as the insurance company's liability llllder the
      underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
      Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982).

      Defendant asserts its privileges relating to computer programs, manuals, and database
      information to the extent that it constitutes trade secrets and other proprietary information.
      See Tex. R. Evidence 507; Tex. R. Civ. P. 76(a)(2)(c); Computer Assoc. Int. 7 v. Altai,
      Inc., 918 S.W.2d 453, 455 (Tex. 1996), RESTATEMENT (213) OF TORTS - 757,
      comment (b). Plaintiff has the burden of establishing the information re'luested herein is
      necessary for a fair adjudication of tltls claim which has not been established to date.
         -,                         I   I




      Defendaut roserts that the benefit that Plaintiff might obtain from this information, if any,
      does not at1d cannot outweigh harm of disclosure to the Defendant See Tn re Leviton Mfg.
      Co. Inc., 1S.W.3d898, 902 (Tex. App.-Waco 1999, orig. proceeding).

18.   List all manuals, instmctions, directions, and materials providing guida11ce regarding the
      use of each computer software program identified ln the foregoing intemigatory.

      ANSWER:

      Defendant objects to this Request as being over broad, vague, ambiguous and outside 1he
      scope of proper discovery.

      Defendant furll:Jer objects to this Request as being outside the scope of discovery as it
      concerns m11tters that are not relevant to the instant litigation nor is the request reasonably
      calculated to lead to the discovery of admissible evidence purruant to the Texas Rules of
      Civil Procedure.

      Tile Defendant fu1iher objects to this interrogatory as it calls for aruirtative response, and
      is an attempt by Plaintiff to improperly limit Defendant's testimony.                             I
                                                                                                        I
      The Defendant furthe!' objects to this request to the extent that the documents called for
      therein is not relevant to any issne in this cause. The Plaintiff has yet to obtain judgment
                                                                                                        r
                                                                                                        I

      establishing the liability and 1u1deril!sured/uninsured statns oftlw other
      motorist. Brainard 11. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
      2006). See also Henson v. Southern Farm Bureau Casualty Jmurance Company, 17
      S.W.3d 652, 653-54 (Tex. 2001}).

      Defendant objects as Plaintiffs are not entitled to discovery of privileged infoJ'ITiation
      regarding bad-faith .clain1s so long as the insnrance company's liability under the
      underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
      Blackmon, 639 8.W.2d 455, 457-58 (Tex. 1982).

      Defendant asserts its privileges relating to computer programs, manuals, and datahase
      infonnation to the extent that it constitutes trade secrets and other proprietary information.
      See Tex. R. Evidence 507; Tex. R. Civ. P. 76(a)(2)(c); Computer Assoc. Int. 7 v. Altai,
      Inc., 918 S.W.2d 453, 455 (Tex. 1996), RESTATEMENT (213) OF TORTS - 757,
      comment (b). Plaintiff has the burden of establishing the infommtion requested hereirds
      necessary for a fair adjudication of this. claim which has not been estllblished to date.
      Defendant asserts that the benefit that Plaintiff might obtain from this information, if any,
      does not and cannot outweigh hann of disclosure to the Defendant See In re Leviton Mfg.
      Co. Inc., l S.W.3d 898, 902 (Tex.. App.-Waco 1999, orig. proceeding).
      I    I




                                                                                                                          ····· !
          ··''

                                                                                                                  .:AI
                                                                                                                  • :;1 L_i.~.-
                                                                                                                           •




19.              State every reason for your refusal to pay the $20,000.00 that you offered (in addition to
                 $5,000.00 in previmisly pa\d personal injury protection benefits an_d $30,000.00
                 previously paid by Patricia Tompkins' insurance carrier) through Fredrick M. Aimour,
                 ynur Claims Service Representative, onApri128, 2014.

                 ANSWER:

                 The Defendant objects to this request as it is overly broad, vague and unduly
                 burdensome.

                 The Defendant fiuiher objects to this request on the grounds it violates the attorney client,
                 attorney work product, witness statement and paiiy cormnunication privileges.

                 The Defendant further objects to this interrogatory as it calls for a nairative response, and
                 is an attempt by Plaintiff to improperly limit Defendant's testi:tnony.

                 The Defendant further objects to this interrogatory to the extent that it is outside the
                 scope of discovery as it concerns matters that ai·e not relevant to the subject matter of this
                 present lawsuit, it seeks information which is not relevant to the claims asserted by the
                 Plaintiff, and is not rerumnably calculated to lead to the discovery of admissible evidence
                 pursuant to the Texas Rules of Civil Procedure.

                 The Defendant further object' to this request to the extent that the documents called for
                 therein is not relevant to any issue in this cause. The Plalntiffhas yet to obtain judgment
                 establislring the liability and undetinmired/unhisured status of the other
                 motorist. Brainard v. TI·inity Universal Insurance Company, 216 S.W.3d.809 (Tex.
                 2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
                 S. W.3d 652, 653-54 (Tex. 2000).

                 Defendant objects as Plaintiffs are not entitled to discovery of privileged information
                 regarding bad-faith claims so long as 1he insurance company's liability under the
                 underlying liability claim remains undetermined. See Maryland Ant Gen. Ins. Co. :v.
                 Blackmon, 639 S.W.2d455, 457-58 (Tex. 1982).

20.              If you contend that Plaintiff is obligated to provide you with a release in exchange for the
                 p~yment of benefits afforded by the uninsured/nnderinsured motorist coverage contllined
                 in the policy at issue herein, identify all policy provisions and other documents on which
                 you base such contention.

                 ANSWElli

                 The Defondimt objects to this request as it is overly broad, vague and unduly
                 burdensome.
l~,_~ ••                                                                            :··,···
'~~i-·;
           ...
·~x:?':;'t.;                                                                       '.~;e.




                 Defendant objects to this Request to the extent that this requests the Defendant to render a
                 legal opinion or legal conclusion,

                 The Defendant further objects to fuis interrogatory as it calls for a narrative response, and
                 is an attempt by Plaintiff to improperly limit Defendant's testimony.

                 The Defettdant further objects to this interrogatory to the extent that it is outside the
                 scope of discovery as it concerns matters that are not relevant to the subject matter of this
                 present lawsuit, it seeks infomllltion which is not relevant to the claims asserted by the
                 Plaintiff, and is not reasonably calculated to lead to tbe discovery of admissible evidence
                 pursuant to the Texas Rules of Civil Procedure.

                 The Defendant further objects to this request to the extent that the documents called for
                 therein is not relevant to any issuein this cause. The Plaintiff has yet to obtain judgment
                 establishing tile liability and underinsured/uninsured status of the other
                 motorist. Bratnardv. Trinity Universallnsurance Company,216 S.W.3d.809 (Tex.
                 2006) See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
                 S.W.3d 652, 653-54 (Tex. 2000).

                 Defendant objects as Plaintiffs are not entitled to discovery of privileged information
                 regarding bad-faith claims so long as the insurance company's liability under the
                 underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
                 Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982).
                       ··I   I                  ....-.-.--~-
                                      --·-·-~:;-·-                  -      ------------
                                                            ... ... -.-...-.
                                                                                                 ,'..
                                                                                                 j_


                                                                                                 I'

                                  CAUSE NO. 201-1365-A

THOMAS JACKSON,
Plaintiff
                                            §
                                            §
                                                             IN nm DISTRICT COURT OF
                                                                                                 I
                                            §
vs.                                         §                188thJUDICIAL DISTRICT
                                            §
AAA TEXAS COUNTY MUTUAL                     §
INSURANCE COMPANY                           §
Defendant.                                  §                GREGG COUNTY, TEXAS


      OE:FENDANT'S OBJECTIONS and RESPONSES TO PLAINTIFF THOMAS
               JACKSON'S FIRST REQUEST FOR ADMISSIONS

TO:    Thomas Jackson, Plaintiff, by and through his attorneys of record, M. Raymond Hatcher
      ·and Alan J. Robertson, Sloan, Bagley, Hatcher & Perry Law Firm, 101 East Whaley
       Street, Longview, Texas 75601.

       COMES NOW AAA Texas County Mutual Insurance Company, Defendants in the above

nwnbered and styled cause, and serves its Objections and Responses to Plaintiffs First Request

for Admissions, in accordance with the Texas Rules of Civil Procedure.


                                                     Respectfully submitted,




                                                     wl~71:'
                                                     CARLOS A BALIDO
                                                     State Bar No. 01631230
                                                     Meadow Park Tower, Suite 1500
                                                     10440 North Central Expressway,
                                                     Dallas, TX 75231
                                                     Tel: 214-749-4805
                                                     Fax: 214-760-1670
                                                     carlos.balidp(il)wbclaw.tlnn.com

                                                     ATTORNEY FOR DEFENDANT
------,         I   I                           -----~-------·-,
                                                                                                                    '   I




                                                                                                               .'




                                          CEltfIFICATE OF SERVICE

                  This is to certify that a true and correct copy of the foregoing document has been mailed,
          faxed, or hand delivered to all parties of record, in compliance witli Rule 2la of the Texas Rules
          of Civil Procedure, on December   '2,3     2014.

          Vi11 First Cutss U.S. Med[
          M. Raymond Hatcher
          Alan J. Robertson
          Sloan, Bagley, Hatcher & Perry Law Firm
          101 East Whaley Street
          Longview, Texas 7560!




                                                                                                                            I

                                                                                                                            I
                                                                                                                            I1·
                                                                                                                            I

                                                                                                                            !
                                                                                                                            I
                                                                                                                            i.
                      ..   '                  -,-              ......... -.·!
                           i




The Defendant objects generally to tl1c Definitions and Instructions set forth at ilie beginning of
this written discovery request for the reason that they are overly broad, unduly burdensome, and
harassing. Further, the Defendant objects to these Definitions and Instructions for the reason that
fuere is no provision in the Texas Rules of Civil Procedure requiring a party to abide by such
definitions and instructions. The Defendant also objects to the Definitions and Instructions to the
extent that iliey seek to impose a greater burden and obligation on ilie Defendant tl1an is
permissible under the Texas Rules of Civil Procl'dure.

Witl10ut waiving or limiting the foregoing general objection, the Defendant specifically objects
to Plaintiff's discovery as follows:

                    OBJECTJONS AND RESPONSES TO PLAINTIFF'S
                         FIRST REQUEST FORADMISSJONS

1,     Plaintiff sued Defendant AAA Texas County Mutual Insurance Company in its proper
       name.

       RESPONSE:

       Admit.

2.     On June 12, 2013, Plaintiff was h1Sured by a personal automobile policy bearing policy
       number TPAO 16443 3 53 issued by Defendllllt.

        RESPONSE:

       Admit

       Prior to June 12, 2013, Defendant entexed into a contractual agreement with Plaintiff to
                                                                                                      I
                                                                                                      1-

       provide uninsured/underinsured motoiist cove111ge to Plai11tiff in the event that he was
       involved in a motor vehicle collision caused by m uninsured/underinsured motodst.
                                                                                                      1
        RESPONSE:
                                                                                                      I
        Admit.                                                                                        !.
4.     Your policy number TPAO 16443353 prnvided uninsured/underinsured motorist coverage
       to PlaintiffonJ1ine 12.. 2013.

        RESPONSE:

        Admit
                                                              --------------···-,




               ·.,_..J   : ••.




5.    Your policy numberTPA016443353 was in force and effect on June 12, 2013.

      RESPONSE:

      Admit.

6.    All premiums due on your policy number TPA016443353 on or before June 12, 2013,
      had been timely paid by or on behalf of Plaintiff.

      RESPONSE:

      Admit.

7.    One June 12, 2013, a collision occurred in Gregg County, Texas, between a motor
      vehicle operated by Plaintiff and a motor vehicle operated by Patricia Tompldns.

      RESPONSE:

      Admit

8.    Plaintiff timely notified Defendant of a potential uninsured/underinsured motorist claim
      following the June 12, 2013, motor vehicle collision that is the basis of this suit.

      RESl'ONSE:

      Admit

9.    Defendant has not issued a reservation of rights letter to Plai11tiff pertaining to the
      uninsured/underill$ured motorist claim Plaintiff made following the June 12, 2013, motor
      vehicle collision that is the basis of this suit.

      RESPONSE:

      Admit

1O.   Based upon your investigation(s) of the June 12, 2013, motor vehicle collision that is the
      basis ofthls suit, you dete1mined that Patricia Tompkins was negligent.

      RESPONSE:

      Deny.
      I     I                                                                                             I   '




          • "i                                                             '.i               . i




11.         If, based upon your investigatiou(s) of June 12, 2013, motor vehicle collision that is the
            basis of this suit, you determined that Patricia Tompkins was negligent, you also
            determined 1hat Patricia Tompkins' negligence proximately caused the collision in
            question.

            RESPONSE:

            Deny.

12.         If, based upon your invcstigation(s) of June 12, 2013, motor vehicle collision that is the
            basis of this·suit, you determined that Patricia Tompkins' negligence proximately caused
            the collision in question, you also determined that Patricia Tompkins' negligence and the
                                                                                                                  ''
            resulting collision caused at least some injury to Plaintiff.                                         !
                                                                                                                  j.

            RESPONSE:                                                                                                  .i
                                                                                                                       il
             Deny.                                                                                                     H
                                                                                                                       i
13.         Based     upon    your   investigation(s)   and/or     evaluation(s)   of     Plaintiffs
            uninsured/underinsured motorist claim, Defendant has detennined that Patricia Tompkins
            was an underinsured motorist, as th.at term is defined in your policy number
            TPA0\6443353.

            RESPONSE:

             Deny.

14.          Based     upon    your      investigation(s) and/or     evaluation(s)     of Plaintiff's
             uninsured/underinsured motorist claim, you have determined that Plaintiff has sustained
             damage in· excess of the sum of (1) Plaintiff's $5,000.00 personal injury pwtection
             coverage, and (2) Patricia Tompkins' $30,000.00 limit of liability insurance.

             RESPONSE:

             Defendant objects to this request as it is a two pait question and vague.

             Witho1Jt waiving this objection, deny.

15.          On April 28, 2014, you offered $20,000.00 from Plaintiff's uninsured/underinsured
             motorist coverage in addition to $5,000.00 in personal injuiy protection coverage that you
             previonsly paid to Plaintiff and $30,000.00 previously paid by Ms. Tompkins' liability
             insurance carrier.

             RESPONSE:

             Admit,
                                                   -,               I   '




                                     .... -.   I




                 .I




16.   Based     upon     your    investigation(s)   and/or    evaluation(s)   of Plaintiff's
      uninsmed/underinsured motorist claim, you have determined that Plaintiff has sustained
      at least $55,000.00 in damages as a result of the June 12, 2013, motor vehicle collision
      between Plaintiff and Patricia Tompkins.

      RESPONSE:

      Deny.

17.   You have failed to pay any portion of 1:b.e $20,000.00 that you offered Plaintiff on April
      28, 2014.

      RESPONSE;

      Defendant objects to this request in that it is vague aud argumentative.

      Without waiving this objection and subject thereto, Defendant admits that it has not paid
      the $20,000.00 offered to Plaintiff on April 28, 2014.

18.   Plail1tiff has complied with all conditions precedent to recovering from the
      uninsured/underinsured motorist coverage contained in your policy number
      TPAOl 6443353.                 .

      RESPONSE:                                                                                    I
                                                                                                   I
                                                                                                   i
      Defendant objects to this request as it is vague,

      Without waiving this objection and subject thereto, Defendant cannot admit or deny,
      Reasonable inquiry has been made for Ibis infunnation and the infomiation known or
      easily obtainable is insufficient to enable Defendant to admit or deny.

                                                                                                   :


                                                                                                   I
                                                                                                   !
                                                                                                   !·
                                                              I   '




                    AFFIDAVIT OF CARLOS BALIDO

STATE OF TEXAS                §
                              §
COUNTY OF DALLAS              §


      BEFORE ME, the undersigned authority, on this day personally

appeared Carlos Balido, known to me to be the person whose signature

appears below, and upon his oath duly deposed and said:

      "My name is Carlos Balido. I am over twenty-one (21) years of age

and suffer from no legal disabilities. I have never been convicted of a

felony offense, nor a crime involving moral turpitude. I have personal

knowledge of the facts stated herein, and they are all true and correct.

      "I am licensed to practice law in the State of Texas by the Supreme

Court of Texas. My license to practice law has never been suspended or

revoked. I am the designated lead trial counsel or attorney of record for

AAA Texas County Mutual Insurance Company ("AAA") in cause number

2014-1365-A, styled Thomas Jackson v. AAA Texas County Mutual Insurance

Company, and pending in 188th Judicial District Court of Gregg County,

Texas (the "UIM suit"). As counsel for AAA in the UIM suit, I certify and

aver that the documents comprising the mandamus record are true and


AFFIDAVIT OF CARLOS BALIDO                                            PAGE-1
                                        I   I




correct copies of the material documents from the DIM suit which were

filed with the trial court or are central to AAA' s claim the trial court abused

its discretion when it failed to both sever and abate Plaintiff Thomas

Jackson's ("Jackson") extra-contractual claims. No testimony was adduced

or presented to the trial court in relation to the November 6, 2015 hearing

on the motion to sever and abate or the October 1, 2015 hearing on the

motion to compel. True and correct copies of the material documents filed

with the trial court and which are central to the issues are attached hereto.

      "With respect to these documents, I am the custodian of said

documents on behalf of my law firm and AAA. These attached documents

are kept by my law firm in the regular course of business, and it was and is

the regular course of business of my law firm for its employees or

representatives, with knowledge of the act, event, condition, opinion, or

diagnosis, recorded to make the record or to transmit information thereof

to be included in such record; and the record was made at or near the time

or reasonably soon thereafter. The records attached hereto are the original

or exact duplicates of the original.




AFFIDAVIT OF CARLOS BALIDO                                             PAGE-2
     "Further affiant sayeth not."


                                           Carlos Balido


    This instrument was sworn to and acknowledged before me on
November 16th, 2015, by Carlos Balido.



                                     · · OTARY PUBLIC
                                         State of Texas




AFFIDAVIT OF CARLOS BALIDO                                 PAGE-3
                                                         AAA Texas County Mutual Insurance Company
                                                         6555 North State Highway 161
                                                         Irving, Texas 75039-2402



April 28, 2014


M. Raymond Hatcher, Esq.
Sloan, Bagley, Hatcher & Perry
101 East Whaley St.
Longview, TX 75601

          RE:         Insured:             Thomas Jackson
                      Client(s):           Thomas Jackson
                      Claim#:              011157387
                      Loss Date:           6/12/13

Dear Mr. Hatcher:

Thank you for your. demand letter and compact disk dated March 26, 2014 and received in our
offices on March 31, 2014. Per your letter you demand the "per person" Underinsured Motorist
(UIM) bodily injury limits in settlement of your client's injury claim. Your disk included medical
bills and records alleged to pertain to your client's care.

We have had an opportunity to thoroughly review the facts and circumstances surrounding the
referenced loss as well the medical documentation you have provided. Unfortunately, we are
unable to accept your demand.

However, in an effort to resolve this matter, we are willing io offer your client $20,000.00 UIM to
resolve his claim. This offer is additional to the $30,000.00 paid by the adverse carrier and the
$5,000.00 Personal Injury Protection (PIP) benefits previously paid.

Please present our offer to your client and contact me at the telephone number listed below so
we may discuss and conclude this matter.

Sincerely,

Fredrick M. Armour
Claims Service Representative

6555 N. State Highway 161
Irving, TX 75039
Ph#: 888.222.9208 x2218379 or 469.221.8379

NOTE: FOR YOUR INFOP.MATION AND PROTECTION, TEXAS LAW PROVIDES AS
FOLLOWS: ANY PERSON WHO KNOWINGLY PRESENTS A FALSE OR FRAUDULENT CLAIM
FORPAYMENTOFALOSSISGUILTYOFACRIMEANDMAYBESUBJECTTOFINESAND
CONFINEMENT IN STATE PRISON




Insurance provided to qualified AAA Texas merr1bers by the lnterlnsurarice Exchange of the Automobile Club and its affiliates
                                                                                                                                MR 1
JOHN D. SLOAN JR .• ,
LAUREllN K nAGLi<Y
M. RAYMOND HATCHER
GLENN A.. PERRY "1·
                                                                                 *
                                                                        SLOAN, BAGLEY,
                                                                       HATCHER & PERRY
                                                                                LAW FIRM
                                                                                                                        J. RYAN FOWLER•
                                                                                                                        ALAN J. UODER'l'SON
                                                                                                                        C!\.ltSON R. RUNGE
                                                                                                                        JUSTIN A, SMITH
•J).(l,w,I C:(U!fl<!,I ~l~Ollfli lnjory T11~11.11•                                                                      WILLIAM X. KING
.NodoMl lln:ml flr 1'1\1t! Admi:1\(f                                       LONGVIEW· HOUSTON



                                                                                May 2, 2014


                  Mr. Frederick Armour                                                         Via Facsimile No.: (469) 221-6025
                  AAA Texas County Mutual Insurance Company
                  6555 N. State Highway 161
                  Irving, Texas 75039

                                    Re:              Our Client/Your Insured:     Thomas Jackson
                                                     Date oflncident;             June 12, 2013
                                                     Claim No.:                   011157387

                  Dear Mr. Armour:

                         Thank you for contacting our office recently regarding your evaluation of my client and
                  your insured, Thomas Jackson's, underinsured motorist claim.

                         In yom letter of April 28, 2014, you indicate that you are offering $20,000.00 in addition
                  to the $5,000.00 PIP benefits previously paid to Mt'. Jackson by AAA for his injuries, as
                  settlement of his claims (over and above of the $30,000.00 third-pruty policy limits received by
                  Mr. Jackson). l3y offering this amount, it is clear that AAA has performed its evaluation of Mr.
                  Jackson's UIM claim and determined that the UIM claim is worth at least $25,000.00
                  ($20,000.00 plus $5,000.00 previously paid PU? benefits). As such, there is no reason that AAA
                  should delay payment of this amount that itself acknowledges is due on this first party claim.

                          This letter is to request that you forward a check in the amount of your evaluation
                  payable to this firm and your insured, Mr. Jackson. Because your insured vehemently disagrees
                  with AAA's evaluation of the value of his claim, the payment of this amount is in no way to be
                  considered "settlement" of Mr. Jackson UlM claim with AAA for the injuries that he sustained in
                  the subject collision.

                          Please confirm in writing that you will forward the $20,000.00 payment as requested and
                  that your insured may negotiate the check without the negotiation being considered any type of
                  release of her rights to seek additional amounts under the policy in the futme.

                   Thank you for your attention to this matter.




                                                                                                                                             MR 2
------··-,
                               I   '




     May2,20l4
     Page2




     MRH/pau
     Jackson 3392-001




                        MR 3
                                                      AAA Texas County Mutual Insurance Company
                                                      6555 North State Highway 161
                                                      Irving, Texas 75039-2402



May 22, 2014



M. Raymond Hatcher, Esq.
Sloan, Bagley, Hatcher & Perry
101 East Whaley St.
Longview, TX 75601


         RE:         Insured:            Thomas Jackson
                     Client(s):          Thomas Jackson
                     Claim#:             011157387
                     Loss Date:          6112113


Dear Mr. Hatcher:

Thank you for your letter dated May 2, 2014 confinning receipt of our settlement offer. Per our
letter our offer is a total of $25,000.00. This includes $20,000.000 Underinsured Motorist (UIM)
and $5,000.00 Persona Injury Protection {PIP).

Your letter advises your client vehemently disagrees with our valuation; however, you demand
we tender a check for $20,000.00 UIM. Furthermore, you advise your client will not sign a
release, will negotiate the issued check and have the right to pursue additional amounts for this
claim in the future.

Unfortunately, we are unable to comply with your request. Our offer was a compromise to
resolve this matter fully and finally in exchange for a release. It remains the table if your client


If this offer is not being accepted and considered full and final we will continue our handling of
this matter per Brainard v. Trinity Universal Ins. Co. case law.

Please contact me at the telephone number listed below if you would like to discuss and resolve
this case.




                                                                                                                            MR 4
Insurance provided to qualified AAA Texas members by the lnterlnsurance Exchange of the AutomobHe Club and its affiliates
                                                        AAA Texas County Mutual Insurance Company
                                                        6555 North State Highway 161
                                                        Irving, Texas 75039-2402




Sincerely,



Fredrick M. Armour
Claims Service Representative

6555 N. State Highway 161
Irving, TX 75039
Ph#: 888.222.9208 x2218379 or 469.221.8379


NOTE: FOR YOUR INFORMATIONAND PROTECTION, TEXAS LAW PROVIDES AS
FOLLOWS: ANY PERSON WHO KNOWINGLY PRESENTS A FALSE OR FRAUDULENT CLAIM
FOR PAYMENT OF A LOSS IS GUILTY OF A CRIME AND MAY BE SUBJECT TO FINES AND
CONFINEMENT INSTATE PRISON




                                                                                                                             MR 5
Insurance provided to qualified AAA Texas members by the lnterineurance Exchange of the Automobile Club and its affiliates
------,-~




   10/Q~/2014    FRI    11!~1    FAX   90~   151   ~750   Slo~n   B~gley   H~tcher                              li!JOO:l/011
           '.



                                                     CAUSE NO. 2014-1365-A

           THOMAS JACKSON                                            §     IN THE DISTRICT COURT
                                                                     §
           vs.                                                       §     OF GREGG COUNTY, TEXAS
                                                                     §
           AAA TEXAS COUNTY MUTUAL                                   §
           lNSURANCE COMPANY                                         §     188"' JUDICIAL DISTRICT

                                       PLAINTIFF'S SECOND AMENDED PETITION

           TO THE HONORABLE COURT:

                       Plaintiff Thomas Jackson files this, his Second Amended Petition, and in support thereof

           respectfully shows the Court the following:

                                               A. DISCOVERY CONTROL PLAN

                       l.       Plaintiff intends that discovery will be conducted pursuant to a Level 3 discovery

           control plan, TEX. R. CIV' p. 190.4.

                                                              B. PARTIES

                       2.       Plaintiff Thomas Jackson, an individual, is a resident of Gregg County, Texas.

           Plaintiff's Texas driver's license number is XXXXX037. Plaintiff's Social Security number is

           XXX-XX-X454.

                       3.       Defendant AAA Texas County Mutual Insurance Company has generally

           appeared herein and is before the Court for all purposes.

                                                   C. JURISDICTION AND VENUE

                       4.       The Court has jurisdiction over the controversy because the damages well exceed

           the Court's jurisdictional minimum. Plaintiff seeks monetary relief in excess of $100,000.00 but

           11ot exceeding $200,000.00.

                       5.       Pursuant to Texas Insurance Code § 1952.110, venue is proper in    ~gg    County,

           Texas, which is the county in which the subject wreck occurred.




                                                                                                                      MR 6
--,
  -
                                                                                         I   I


      10/03/2014 FRI 11:31     FAX   ~03   757 8750   Slo~n B~gley H~tcher                                     li!I004/0ll




                                           D. AGENCY I RESPONDEAT SOPElUOR

                     6.      Whenever it is alleged in this petition that Defendant, AAA Texas County Mutual

              htsurance Company, did any act, omission or thing, it is meant that Defendant's employees,

              agents, officers, directors, servants, apparent agents, ostensible agents, agents by estoppe) and/or

              representatives did such act, omission or thing and that at the time such act, omission or thing

              was done it was done with the actual or implied knowledge of Defendant, AAA Texas County

              Mutual Insurance Company, or was done with the full authorization or ratification of Defendant,

              AAA Texas County Mutual Insurance Company, or was done in the normal and routine course

              and scope of agency or employment of Defendant's employees, agents, officers, directors,

              servants, apparent agents or ostensible agents, agents by estoppel, and/or representatives.

                                                           E. FACTS

                     7.      This lawsuit results from a collision that occurred on June 12, 2013, at

              approximately 8:58 p.m. in Longview, Gregg County, Texas. Plaintiff Thomas Jackson was

              operating his vehicle westbound on Pliler Precise Road in a safe, reasonable and lawful manner,

              when he stopped in obedience to a traffic control device at the intersection of Judson Road and

              Pliler Precise Road. After stopping, and in obedience to the traffic control device, Plaintiff

              proceeded to continue traveling westbound into the intersection of Pliler Precise Road and

              Judson Road. Patricia Tompkins was traveling northbound on Judson Road when, with complete

              disregard for the safety and welfare of other persons or property, she disregarded the traffic

              control device striking the driver's side of the vehicle being driven by Plaintiff and causing the

              collision made the basis of this lawsuit.

                     8.      When the collision occurred, Plaintiff's vehicle was covered by a policy of

              automobile insurance in full force and effect, which is the subject of this lawsuit. The policy of


                                                               2




                                                                                                                     MR 7
                                                  I   I                                                              ,-,

10/03/2014 FRI 11:32     FAX ~03 757 8750 Sloan Bagley Hatcher                                            ~005/011




       automobile insurance was issued by Defendant and included urrinsured/underinsured motorist

       coverage as defined under the policy and/or by statute.

               9.       Plaintiff timely and properly notified Defendant of the motor vehicle collision that

       is the subject of this suit. Plaintiff has fully complied with all of the conditions of that insurance

       policy prior to his filing suit against Defendant. All conditions precedent have been perfonned

       or have occurred. Further, Plaintiff has complied with requests for provision of infonnation to

       the Defendant.

               10.      A:; a result of the collision caused by Patricia Tompkins, Plaintiff sustained

       damages that exceed the amount of available and collectible liability insurance coverage issued

       to Patricia Tompkins and which covered her uegligent actions. Defendant refused to consider

       Plaintiff s injuries, medical billing paid or incurred by or on behalf of Plaintiff and failed, and

       continues to fail, to fully compensate Plaintiff for the injuries caused by Patricia Tompkins, an

       underinsured motorist, and give Plaintiff the benefit of the bargain of his uninsured/underinsured

       motorist coverage present in the insurance policy, in violation of Texas law as described herein

        below. As a result of their acts and/or omissions, and unlawful conduct as described herein

       below, Defendant proximately caused Plaintiff injury.

                                 F. BREACH OF INSURANCE CONTRACT

               11.      All of the premiums that were due on the AAA Texas County Mutual Insurance

       Company policy with Thomas Jackson as the named insured had, at the time of the wreck, been

       paid and the policy was in full force and effect at the time of the collision. Defendant, AAA

       Texas County Mutual Insurance Company, kept its insured's premiums and had obligations as

        described in the insurance policy that was in effect at the time of the incident in question.

       Defendant to date has failed and refused to pay the money due under the policy, despite demand.



                                                          3




                                                                                                                MR 8
----,---                  I    I
                                                                                                                   !   I


       10/03/2014 FRI 11: 33              FAX   ~03    757 8750   61o~n   B~gley   H~tcher                             1,,1,JOOo/Oll




               Specifically, Defendant has detenuined that Plaintiffs underinsured motorist claim is worth at

               least $55,000.00, as evidenced by its April 28, 2014, offer to pay $20,000.00 in addition to

               $5,000.00 previously paid by Defendant in personal injury protection benefits and $30,000.00

               previously paid by Ms. Tompkins's insurer. 1 However, despite Plaintiffs demand for payment

               of 1his widisputed portion of his underinsured motorist coverage2 , Defendant has refused to

               tender this amount.               This failure and refusal to pay constitutes a breach of contract and

               demonstrates bad faith. Further, Defendant's failure to properly value and fully pay Plaintiffs

               damages pursuant to its obligations in the policy at issue likewise constitutes a breach of contract

               and demonstrate bad faith, notwithstanding the Texas Supreme Court's holding in Brainard v.

               Trinity Univ, Ins. Co., 216 S.W.3d 809 (Tex. 2006).

                                    G.      BREACH OF DUTY OF GOOD FAITH AND FAIR DEALING

                              12.        Without adeciuate explanation or justific;ation, Defendant breached its duty of

               good faith and fair dealing by denying and/or delaying payment of benefits to Plaintiff in

               accordance with its insurance agreement with Plaintiff when it was reasonably clear that it

               should pay said benefits to Plaintiff. Specifically, before the filing of this suit, Defendant has

               determined that Plaintiffs underinsured motorist claim is worth at least $55,000.00, as evidenced

               by its April 28, 2014, offer to pay $20,000.00 in addition to $5,000.00 previously paid by

               Defendant in personal injury protection benefits and $30,000.00 previously paid by Ms.

               Tompkins's inSurer.                    However, despite Plaintiff's demand for Defendant's payment of

               $20,000.00            ~   the undisputed portion of the undel'insured motorist coverage - Defendoot has

               refused and continues to refuse to tender this amount. Accordingly, Defendant is in violation of

               Texas Insurance Code, Chapter 541, et seq. Further, Defendant has engaged in unfair claim


               ' See Exhibit A to Plaintiff's Original Petition amt Request for Disclosure.
               2
                   s.,,
                     Exhibit B to Plaintiff's Original Petition and Request for Disclosure.

                                                                             4




                                                                                                                             MR 9
        -------------~---,




10/03/2014 FRI 11:'4     FAX   ~03   157   ~750   Sloan Bagiey Hatcher                                   liZJ0071011




       settlement practices in violation of Texas Insurance Code §§ 541.060(a)(2)(A), 542.056,

       542.057, and 542.058. As a proximate result of these actions, Plaintiff has suffered damages,

       which are more fully outlined herein below.

                               H. VIOLA'l'ION OF THE TEXAS
                 DECEl'TlVE TRADE PRACTICES - CONSUMER PROTECTION ACT

               13.     Because Defendant violated Texas Insurance Code § 541.060(a)(2)(A) (failing to

       attempt in good faith to effectuate a prompt, fair, and equitable settlement of a claim with respect

       to which its liability has become reasonably clear), Defendant is deemed to have violated the

        Texas Deceptive Trade Practices - Consumer Protection Act.           TEX. Bus. & COM. CODE §

        l 7.50(a)(4). Accordingly, Texas statutory law grants Plaintiff a private right cause of action. Id

        Defendant's violation of the Texas Deceptive Trade Practices - Consumer Protection Act caused

        Plaintiff damages as discussed elsewhere herein.

                     I. VIOLATION OF TEXAS INSURANCE CODE CHAPTER 541

               14.     Because Defendant violated Texas Insurance Code§ 541.060(a)(2)(A) {failing to

        attempt in good faith to effectuate a prompt, fair, and equitable settlement of a claim with respect

       to which its liability has become reasonably clear), Texas law grants Plaintiff a statutory private

        right cause of action pursuant to the Texas Insurance Code, in addition to Plaintiff's claims

        pursuant to the Texas Deceptive Trade Practices - Consumer Protection Act. Tux. INS. CODE §

        541.151(1). Defendant's violation of the Tex:as Insurance Code caused Plaintiff damages as

        discussed elsewhere herein.

                                J. PETITION FOR DECLARATORY RELIEF

               15.     Based on the foregoing facts, and pursuant to the policy of insurattce in force and

        effect between Plaintiff and Defendant AAA Texas County Mutual Insurance Company at the

        time of the wreck, Plaintiff seeks a declaratory judgment pursuant to Chapter 37 of the Tex:as

                                                            5




                                                                                                               MR 10
                                                                        --------------,-,


10/03/2014 FRI   11~35    FAX   ~03   757   ~750   Slo~n   B~gley   H~tcher                              "1100~I011




        Civil Practice and Remedies Code construing the contract of irumrance and declaring Plaintiff's

        rights and obligations under the contract. Specifically, Plaintiff seeks findings that (1) Patricia

        Tompkins is an underinsured motorist, (2) that Plaintiff is entitled to recover from Defendant

        Plaintiffs damages resulting from the motor vehicle collision the subject of this suit, (3) that

        Plaintiff's damages fall within the coverage afforded Plaintiff under the policy with Defendant,

        and (4) a finding specifying the amount of damages, attorney's fees, interest, and court costs that

        Defendant is obligated to pay.

                 16.     Defendant AAA Texas County Mutual Insurance Company's conduct is a

        proximate and produch1g cause of damages to Plaintiff. Such damages include, but are not

        limited to, unpaid benefits, medical expenses, physical impainnent, lost earning capacity, and

        pain and mental anguish. Such damages have occurred in the past and are likely to continue in

        the future.

                 17.     As a result of Defendant AAA Texas County Mutual Insurance Company's

        conduct, Plaintiff has incurred attorney's fees through trial and appeal.

                                                      K. DAMAGES

                 18.     As a proximate result of the collision, Plaintiff Thomas Jackson sustained serious

        personal injuries, specifically including neck, back, and head injuries and injuries to his body

        generally. Plaintiff believes some of his injuries are permanent in nature and have had a serious

        effuct on his health and well-being. In connection with such injuries, Plaintiff Thomas Jackson

        has suffered physical pain and mental anguish in the past, is suffering at the present, and, in all

        reasonable probability, will continue to suffer for the rest of his life.     Further, it has been

        necessary for Plaintiff, Thomas Jackson, to pay or incur reasonable and necessary medical

        ex:penses in the past and in all reasonable probability will incur reasonable and necessary medical



                                                               6




                                                                                                              MR 11
                                         --------------~---,




l0/0~/2014   FRI   11!~6    FAX   ~Q~   757 8750   Slo~n   B~g1ey   H~tcher                               <ZJ009/0ll




        expenses for the treatment of his injuries in the future. In addition, he has sustained physical

        impairment in the past and will in all probability continue to sustain physical impairment in the

        future. Plaintiff Thomas Jackson sues for the recovery of past and future medical expenses, pa.st

        and future physical pain and mental anguish, and past and future physical impairment; all in an

        amount in excess of the minimum jurisdictional limits of this Court. Plaintiff seeks a reasonable

        amount to be determined by the jury for his injuries.

                   19.     Additionally, because Defendant acted knowingly in failing to pay $20,000.00 in

        uninsured/underinsured motorist benefits that, by its own ewluation, its duty to pay is reasonably

        clear in violation of Texas Insurance Code§ 54l.060(aX2)(A), Plaintiff is entitled to three times

        the amount of economic damages. True Bus. & COM. CODE§ 17.SO(b)(l). Also, Plaintiff is

        entitled to collect from Defendant mental anguish dwnages arising from Defendant's failure to

        pay $20,000.00 in uninsured/underiusured motorist benefits. Id

                   20.     Additionally, because Defendant acted knowingly in failing to pay $20,000.00 in

        uninsured/underinsured motorist benefits that, by its own evaluation, its duty to pay is reasonably

        clear in violation of Texas Insurance Code§ 54L060(a)(2)(A), Plaintiff is entitled to three times

        the amount of actual damages. TEX. INS. CODE§ 541. 152.

                   21.     Additionally, because Defendant acted intentionally in failing to pay $20,000.00

        in uninsured/underinsured motorist benefits that, by its own evaluation, its duty to pay is

        reasollllbly clear in violation of Texas Insurance Code § 541 .060(a)(2)(A), Plaintiff is entitled to

        three times the amount of economic damages l!llll mental anguish damages arising from

        Defendant's failure to pay $20,000.00 in uninsured/Ullderinsw·ed motorist benefits. TBX. Bus. &

        COM. CODB § 17.SO(b)(l).




                                                              7




                                                                                                                MR 12
----------------,-,                                                ,-

10/03/2014 FRI   11~31    FAX   ~03   757 8750   6lo~n   B~gley   H~tcher                                i:JOl0/011




                 22.     Additionally, pursuant to a number of statutes, Plaintiff is entitled to reasonable

        and necessary attorney's fees from Defendant. See TEX. CIV. PRAC. & REM. CODE § 37.009;

        TEX. C1v. PRAC. &REM. CODE§ 38.001(8); TEX. Bus. & COM. CODE§ 17.SO(d); TEX. INS. CODE

        § 541.152(a)(l); and TEX. INS. CODE§ 542.060(a).

                 23.     Additiomtlly, because Defendant violated Texas Insurance Code §§ 542.056,

        542.057, and/or 542.058, Plaintiff is entitled to i11terest on $20,000.00 - the runount of

        uninsuredlunderinsured motorist benefits that, pursuant to Defendant's evaluation, its duty to pay

        is reasonably clear- at the rate of 18 percent a year. TEX. INS. CODE§ 542.060(a).

                 24.     Additionally, the attorney's fees doe to Plaintiff pursuant to Texas Insurance Code

        § 542.060(a) shall be taxed as part of the costs of court.

                                          L. DOCUMENTS TO BE USED

                 25.     Pursuant to Texas Rule of Civil Procedure 193.7, Plaintiff intends to use all

        documents exchanged and produced between the parties including but not limited to

        correspondence and discovery responses during the trial of the above-entitled and numbered

        cause.
                                          l\'I. CONDITIONS PRECEDENT

                 26.     All conditions precedent to Plaintiff's recovery from Defendant have been

        performed and/or have occurred. Tux. R. C1v. P. 54.

                                             N. PRAYERFORRELIEF

                 PREMISES CONSIDERED, Plaintiff requests that the Defendant be cited to appear and

        answer and that, upon final hearing hereon, Plaintiff recover as follows:

                 a. Actual damages within the jurisdictional limits of this Court;

                 b. Prejudgment and post-judgment interest as allowed by law;



                                                             8




                                                                                                               MR 13
--------,                                                  ----------------,

   10/03/2014 FRI 11: 37   FAX 903 757 8750 Slo•n B•gley H•tcher                                         1;!]011/011




                  c. Declaratory relief as outlined in the petition;

                  d. Costs of Court and attoroey' s fees; and

                  e. All other relief to which Plaintiff may show himself justly entitled.

                                                            Respectfully submitted,

                                                            SLOAN, BAGLEY, HATCHER & PERRY LAW FIRM




                                                            State Bar No. 24002243
                                                            rhatcher@sloanfinn.com
                                                            ALAN J. ROBERTSON
                                                            State Bar No. 24067952
                                                            arobertson@sloanfirm.com
                                                            I 01 East Whaley Street
                                                            Longview, TX 75601
                                                            Telephone 903-757-7000
                                                            Facsimile 903-757-7574

                                                            ATIORNEYS FOR PLAINTIFF


                                           CERTIFICATE OF SERVICE

                   I hereby certify that on this 2"d day of October, 2014, a true and correct copy of the
           foregoing document was sent by certified mail, returo receipt requested, facsimile transmission,
           and/or e-mail in accordance with the Texas Rules of Civil Procedure to the following counsel of
           record:

                  Mr. Carlos A. Balido
                  WALTERS, BALIDO & CRAIN, L.L.P.
                  Meadow Park Tower, IS'h Floor
                  10440 Nor1h Central Expressway
                  Dallas, TX 75231




                                                             ALAN      J. ROBERTSON




                                                            9




                                                                                                              MR 14
....•. '.




                                           CAUSE NO. 201"1365-A

        THOMAS JACKSON,                             §              IN THE DISTRICT COURT OF
        Plaintiff                                   §
                                                    §
        vs.                                         §              l 88th JUDICIAL DISTRlCT                  l
                                                                                                             I
                                                    §                                                        r
        AAATEXASCOUNTYMUTUAL                        §
        INSURANCE COMP ANY                          §
        Defendant.                                  §              GREGG COUNTY, TEXAS


                       DEFENDANT'S OBJECTlONS and RESPONSES TO
              PLAJNTIFF THOMAS JACKSON'S FIRST REQUEST FOR PRODUCTION

        TO:    Thotnas Jackson, Plaintiff, by and tbrougli his attomeys of record, M. Raymond Hatcl:ier
               and Alan J. Robertson, Sloan, Bagley, Hatcher & Perry Law Firm, 101 East Whaley                     j.
               Street, Longview, Texas 75601.                                                                      !



               COMES NOW AAA Texas County Mutual Insurance Company, Defendants in the above

        numbered and styled cause, and serves its Objections and Responses to the Plaintiffs l'irst

        Request for Prodiiction, in accordance with the Texas Rn!es of Civil Procednre.


                                                            Respectfully submitted,

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




                                                            State Bar No. 01631230
                                                            Meadow Park Tower, Sirite 1500
                                                            10440 N01ih Central Expressway,
                                                            Dallas, TX 75231                                 I·.
                                                                                                             I
                                                            Tel: 214-749-4805
                                                            l'ax: 214-760-1670                               I
                                                            carlos.balidolii.!wbclawftrrn.com                '
                                                            ATTORNEY FOR DEFEND.ANT




                                                                                                          MR 15
                                CERTIFICATE OE SERVICE

        This is to certify that a true and correct copy of the foregoing document has been mailed,
faxed, or hand delivered to all parties ofrecord, in compliance with Rule 2la of the Texas Rules
of Civil Procedure, on December~ 2014.

Via First Class U.S. Mail
M. RaymondHatcher
Alan J. Robertson
Sloan, Bagley, Hatcher & Perry Law Film
I 01 East Whaley Street
Longview, Texas 75601




                                                                                                             r:
                                                                                                             i




                                                                                                     MR 16
               '   I




The Defendant objects generally to the Definitions and Instructions set forth at 1he beginning of        i

this written discovery request for the reason that they are overly broad, unduly burdensome, and
                                                                                                         i
harassing. Further, the Defendant objects to these Definitions and Instructions for tbe reason that      I'
there is no provision in the Texas Rules of Civil Procedure requiring a party to abide by such
definitions and instructions. The Defendant also objects to the Definitions and Instructions to the
extent that they seek to impose a greater burden and obligation on tbe Defendant than is
permissible under the Texas Rules of Civil Procedure,
                                                                                                         I
                                                                                                         l
                                                                                                         l
                                                                                                         l
        Without walving or limiting the foregoing general objection, the Defendant specifically          i
objects to Plaintiff's discovery as follows:                                                              r
                                                                                                         !'
                                                                                                              "·
                                                                                                              ~;:
                       OBJECTIONS AND RESPONSES TO PLAINTIFF'S                                                i"•

                           FIRST REQUEST FOR PRODUCTION                                                       (

                                                                                                         i
                                                                                                         I
1.     The entire claims file and/or adjuster logs including, but not limited to, photographs,           I
       statements, notes, memoranda, tables, computer-generated information and other written            i
       documents contained iherein, that were generated in connection with fue injmy to the              II
       Plaintiff that forms the basis of this lawsuit.                                                   II
       RESPONSE:                                                                                         I
                                                                                                         I
       The Defendant objects to this request on the grounds it violates the attomey clie11t,
       attorney WOl'k product, witness statement and party communication privileges,
                                                                                                         I
       Tue Defendant further objects to this Request as being over broad, vague, ambiguous and
       outside the scope of proper discovery. See Loftin v. Marlin, 776 S.W.2d 145, 148 (Tex.
                                                                                                         1·
       1989).                                                                                            I
       The Defendant further objects to this Request as being outside the scope of discovery as
       it concerns matters that are not relevant to the irurtant litigation nor is the request
       reasonably calculated to lead to the discove1y of admissible evidence pursuant to the             I
                                                                                                         !
       Texas Rules of Civil Procedure.
                                                                                                         I
       The Defendant furtl1er objects to this interrogatory in that the Plaintiff bas the burden of
       proof to evince that relevant to any issue in this cause. In order for the Plaintiff to
       recover under their DIM claim, they must prove that the purported                                 I
       underinsnred/uninsured motorist negligently caused the accident that resulted .in tbeir           j"
       purported damages. See Allstate Ins. Co. v. Bonner, 51 S.W.3d 289, 291-92 (Tex.2001);
       Wel/tsch v. United Servs. Auto. Ass'n, 75 S.W.3d 53, 57 (Tex.App.-San Antonio 2002,
       pet. denied).




                                                                                                      MR 17
                                                                                                       . i'




     The Defendant further objects to this request to the extent that the documents called for
     therein is not relevant to any issue in tlus cause. The Plaintiff has yet to obtain judgment
     establishing the liability and underinsured/uninsured status of the other
     motorist. Brainard v. Trinily Universal Insurance Company, 216 S.W.3d.809 (Tex.
     2006). See also Henson v. Soulhern Fmw Bureau Casualty Insurance Company, 17
     S.W.3d 652, 653-54 (Tex. 2000).

     The Defendant further objects as Plaintiff is not entitled to discovery of privileged
     information regarding bad-faith claims so long as the insurance company's liability under
                                                                                                         I·
     ihe underlying liability claim remains undetermined. See M01yland Am. Gen. Ins. Co, v,              !··
                                                                                                         ',.   ;
     Blackmon, 639 S.W.2d455, 457-58 (Tex.1982).
                                                                                                               f~
     Without waiving said objections, Defenda11t refers Plaintiff to photographs produced as                   ''··
     Exhibit 1.                                                                                                I
     Without waiving said objections, Defendant refers Plaintiff to Police Report, produced as                 i
                                                                                                               I1·
     Exhibit2.
                                                                                                               I
                                                                                                               I'
2.   All written documentation of any investigation or reconstrnction of the collision (other            ;     i
     than those conducted by govemmental/law enforcement entities or retained experts) from
     which this lawsuit arises.
                                                                                                         !
                                                                                                         I'
     RESPONSE:                                                                                           I     ;.
     The Defendant objects to this request as it is overly broad, vague and unduly                             j

     burdensome.

     The Defendant further objects to this request on the grounds it violates ihe attorney client,             i
                                                                                                               I
     attorney work product, witness statement and party communication privileges,
                                                                                                                t··
                                                                                                                I
     Defendant objects to this Request as being outside the scope of discovery as it concerns                  rI
     matters that al'e not relevant to the instant litigation nor is the request rea%nably                     I.
                                                                                                               I
     calculated to lead to the discovery of admissible evidence pursuant to the Texas Rules of
                                                                                                               !
     Civil Procedure.
                                                                                                               u
                                                                                                               r.:
     The Defendant further objects to this request to the extent that the documents called for
     fuerein is not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment
     establishing the liability and underinsured/uninsured status of the other
     motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
     2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, I 7
     S.W.3d 652, 653-54 (Tex. 2000).

     The Defendant fmiher objects as Plaintiff is not entitled to discoveiy of privileged
     information regarding bad-faith cltrims so long as the insurance company's liability under




                                                                                                     MR 18
                                                                         - - - - - - - - - - - - - - --,




     the underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
     Blackmon, 639 S.W.2d455, 457-58 (Tex. 1982).

     Without waiving said objections, see documents attached.

3.   All photographs, motion pictures, video recordings, maps, drawings, charts, diagrams,
     measurements, surveys, or other documents concerning the events and happenings made
     the basis of this lawsuit, the vehicles in question, the scene of the collision at issue, or the
     urea, persons, or objects involved either made at the time of or since the collision at issue.

     RESPONSE:
                                                                                                           l
     The Defendant objects to this request as it is overly broad, vague WJd onduly
     burdensome.
                                                                                                           I
                                                                                                           1·
                                                                                                           i
     The Defendant further objects to this request on the grounds it violates the attorney client,
     attomey work product, witness statement and party cormnunication privileges.

     The Defendant further objects to this Request as being outside the scope of discovery as
     it concerns matters that are not relevant to the instant litigation nor is the request
     reasonably calculated to lead to the discovery of admissible evidence pursuant to the
     Texas Rules of Civil Procedure.

     The Defendant further objects to this request to the extent that the documents called for
     therein is not relevant to any issne in this cause, The Plaintiff has yet to obtain judgment
     establishing the liability and underinsnred/uninsured statns of the other
     motorist. Brainard v. Trini01 Universal Insurance Company, 216 S.WJd.809 (fex.
     2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
     S.W.3d 652, 653-54 (fex, 2000).

     111e Defendant further objects 8B Plaintiff is not entitled to discovery of privileged
     information regarding bad-faith claims so long 8B the insurance company's liability under
     the underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
     Blackmon, 639 S.W.2d 455, 457-58 (fex. 1982).

     Without waiving said objections, see documents attached.

4.   All surveillance movies, photographs, videotapes, electronic or digiial images, or other
     images of Thom8B Jackson or of the collision or scene of the collision in Defendant's or
     Defendant's agents' or attorneys' possession.

     RESPONSE:

     The Defendant refers Plaintiff to attached police report.




                                                                                                        MR 19
5.   All incident reports (other than those created by governmental/law enforcement entities
     or retained experts) and/or witness statements relating to or discussing the collision made
     the basis of this lawsuit and/or the injuries that Plaintiff claims resulted from said
     collision.

     RESPONSE:                                                                                                1:'
                                                                                                              i
     The Defendant objects to this request as it is overly broad, vague and unduly                            I::
     burdensome.

     The Defendant further objects to this request on the grounds it violates the attorney client,
     attorney work product, witness statement and par(y communication privlleges.

     The Defendant further objects to this Request as being outside fue scope of discove1y as
     it concerns matters that are not relevant to the instant litigation nor is the request
     reasonably calculated to lead to !be discovery of admissible evidence pursuant to the
     Texas Rules of Civil Procedure.

     The Defendant further objects to this request to the extent tl1at the documents called fo:t
     therein is JJ.ot relevant to any issue in thls cause. The Plaintiff has yet to obtain judgment
     es!J3.blishing the liability and underinsured/uninsurcd status of the other
     motorist. Brainard v. Trinity Universal Insurance Company, 216 S. W.3d.809 (Tex.
     2006). See also Henson v. Southern Farm Bureau Casualty Insurance Campany, 17
     S.W.3d 652, 653-54 (Tex. 2000).                                                                          'j.,,
     The Defendant further objects as Plaintiff is not entitled to discovciy of privileged
     in:foI111ation regarding bad-faith claims so long as the insurance company's liability under
     the underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Ca. v.
     Blaclanon, 639 S.W.2d 455, 457-58 (Tex. 1982).

     Without waiving said objections, see documents attached,

6.   All correspondence, memoranda, reports, e-mails, fucsimile transmissions, and all other
     documents evidencing communications regarding the insuraoce claim(s) or any aspect of
     said claim(s) that is the subject of Ibis litigation between Defendant and its (a) adjusters,       I
     (b) employees, (c) officers, (d) agents,€ representatives,(!) independent adjusters (other
     than those retained for !be purpose of litigation), and/or (g) independent adjusting firms
                                                                                                         I
     (otheI !ban those l'etained for the purpose of litigation).
                                                                                                         '
                                                                                                         !



     RESPONSE:

     The Defendaot objects to this request as it is overly broad, vague and unduly
     burdensome.




                                                                                                      MR 20
--------------~··-,
                                                                 '   I



                                                    ..... -.·1
                                                                              ·.T - - - - - - - - - - - - - -
                                                             '




      The Defendant further objects to this req11est on the grounds it violates the attorney client,
      attorney work product, wit11ess statement and party communication privileges.

      The Defendmt further objects to this request to the extent that it is outside the scope of
      discovery a.s it regards matters that are not relevant to the subject matter of this present
      lawsuit, seeks infmmation which is not relevant to the claims asse11ed by the Plaintiff,
      and is not reasonably calculated to lead to the discovery of admissible evidence pursuari
      to the Texas Rules of Civil Procedure.

      The Defendant further objects to this request to the extent that the documents called for           ;
      therein is not relevant to any issue Jn this cause. The Plaintiff has yet to obtain judgment        I·
      establishing the liability and underinsured/uninsured status of the other                           i
      motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.Jd.809 (Tex.                          r
      2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17                            Ii,
      S.W.3d 652, 653-54 (Tex. 2000).                                                                     I    1.
                                                                                                               !r:
      The Defendant furU1er objects as Plaintiff is not entitled to discovery of privileged               I
                                                                                                          I    i
      info1mation regarding bad-faith claims so long as the insurance company's liability under                '.~:


                                                                                                          II
                                                                                                               (;
                                                                                                               ::-:
      the underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
      Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982).                                                            IJ
                                                                                                          II   !
      Without waiving said objections, see documents attached.
                                                                                                          i
 7.   All documents regarding every telephone conversation with or regarding Plaintiff.                   I
      RESPONSE:                                                                                           I
      The Defendant objects to this request as it is overly broad, vague and unduly
      burdensome.

      The Defendant objects to this request on the grounds it violates the attorney client,
      attorney work product, witness statement and party conununication privileges.
                                                                                                          ;:
      The Defendant further objects to this request to the extent 1hat it is outside the scope of         L
      discovery as it regardJl matters that are not relevant to the subject matter of this present        j
      lawsuit, seeks info:rmation which is not relevant to the claims asserted by the Plaintiff,
      and is not reasonably calculated to lead to the discovery of admissible evidence pursuant
      to the Texas Rules of Civil Procedure.

      The Defendmt :further objects to this request to the extent that the documents called for
      therein is not relevant to any issue in tbis cause. The Plaintiff has yet to obtain judgment
      establishing the liability and underinsured/uninsured status of the other
      motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.




                                                                                                       MR 21
                                                          ~----~~--------·-,




                   .. I




     2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
     S.W.3d 652, 653-54 (Tex. 2000).

     The Defendant further objects as Plaintiff is not entitled to discovery of privileged
                                                                                                          1.
     information regarding bad-faith claims so long as the insurance company's liability under
     the underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
     Blockmon, 639 S.W.2d455, 457-58 (Tex. 1982),
                                                                                                          Ii
8.   All docim1ents regarding the ammmt(s) set aside and/or placed in reserve regarding
     Plaintiff's claim foruninsured/underinsured motmist coverage benefits herein.
                                                                                                          I
     RESPONSE:                                                                                            I
                                                                                                          :
     The Defendant objects to this request as it is overly broad, vague and unduly                        i
     burdensome.

     The Defendant further objects to this request to the extent that it is outside the scope of
     discovery as it regards matters that are not l'<;levant to the subject matter of this present
     lawsuit, seeks information which is not relevant to the claims asserted by the Plaintiff,
     and is not reasonably calculated to lead to the discove.ry of admissible evidence pursuant           '
     to the Texas Rules of Civil Procedure.

     T11e Defendant further objects to this request to the extent that the documents called for           I
     therein is not relevant to any issue in this cause. The Plaintiffhas yet to obtain judgment
     establishing the liability and underinSlrred/uoinsured status of the other                           I
     motorist. Broinardv. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
     2006). See also Henson v. Southern Farm Bureau Casually Insurance Company, 17
     S. W.3d 652, 653-54 (Tex. 2000).

     The Defendant further objects as Plaintiff is not entitled to discovety of privileged
     information regarding bad-faith clain1s so long as the insurance company's liability under
     the underlying liability claim remains nndetermined. See M01yland Am. Gen. Ins. Co. v.
     Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982).

     The Defendant farther objects to this request on tile gronnds it violates tile attorney client,
     attorney work product, witness statement and pm1:y co=unication privileges.

                                                                                                          ''
                                                                                                          i
                                                                                                          I
                                                                                                          1·
                                                                                                          i

                                                                                                          I
                                                                                                          iI

                                                                                                       MR 22
                       -----~----------,




9.    All non-privileged investigative repmis regarding tl1e collision made the bai;is of this
      lawsuit including documents, memoranda, photographs, video recordings, movies,
      statements, reports, drawings, communications, and tangible things attached to such
      reports or referred to therein.

      RESPONSE:

      The Defendant objects to this request as it is overly broad, vague and unduly
      burdensome.

      The Defendant forthcr objects to thL5 request to the extent that it is outside the scope of
      discovery ai; it regards matters that are not relevant to the subject matter of this present
      lawsuit, seeks infonnation which is not relevant to the claims asserted by the Plaintiff,         r
      and is not reasonably calculated to lead to the discovery of admissible evidence pm·suant
      to the Texas Rules of Civil Procedure.
                                                                                                        ..
      The Defendant forther objects to this rec1uest to the extent that the documents called for        '

      therein is not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment
      establishing the liability and underinsured/uninsured status of the other
      motorist. Bra/n(JJ'd v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
      2006). See also Henson v. Southern Farm Bureau Casually Insurance Company, .17
      S.W.3d 652, 653-54 (Tex. 2000).

      The Defendant fU.rther objects as Plaintiff is not entitled to discovery of privileged            "
      infonnation regarding bad-faith claims so long as tl1e insurance company's liability under
      the underlying liability claim remains undetennined. See Maryland Am. Gen. Ins. Co. v.
      Blackmon, 639 S.W.2d455, 457-58 (Tex. 1982).
      Without waiving said objections, the Defendant refers Plaintiff to documents attached.

10.   Complete and legible photocopies or audible recordings of every written or oral statement
      obtained by yon or on your behalf from any person designated by any party as having
      knowledge ofrelevant facts pursuant to Texas Rule of Civil Procedure 194.2(e).

      RESPONSE:

      Defendant will supplement response.




                                                                                                     MR 23
11.   If already produced herein, a complete copy of every primary, umbrella, and excess
      insurance policy or agreement, including all declaratioru page(s), endorsements,
      ame11dments, riders, and attachments iI1 effect when the subject collision occurred and
      providing coverage to Plaintiff for injuries suffered in 1he subject collision.

      RESPONSE:

      The Defendant objects to 1his request to the extent that it is outside the scope of discovery
      as it regards matters that are not relevant to the subject matter of this present law:mit,
      seeks information which is not relevant to the claims asserted by the Plaintiff, and is not
      reasonably calculated to lead to the discoveiy of admissible evidence pursuant to the
      Texas Rules of Civil Procedure.

      Defendant will supplement response.

12.   All written docwuents in Defendant's possession signed by or on behalf of Plaintiff.

      RESPONSE:

      None.

13.   All non--waiver agreements, reservation of right~ letters, and other documents or
      comm11nications regardir1g any contrnctual obligation owed to you by Plaintiff or
      condltion precedent to recove1y wi1h which Plaintiff must comply.

      RESPONSE:

      The Defendant objects to this request as it. is overly broad, vague and unduly
      burderuome.

      The Defendant :further objects to this request to the extent that it is outside the scope of
      discove1y as it regards matters that are not relevant to the subject Jnatter of this present
      lawmit, seeks information which is not relevant to the claims asserted by the Plaintiff,
      and is not reasonably calculated to lead to the discovery of admissible evidence pursuant
                                                                                                              !
      to the Texas Rules of Civil Procedure.

      The Defendant further objects to this request to 1he extent that the documerds called for
      therein is not relevant to any iss1ie in this cause. The Plaintiff has yet to obtain judgment
      establishing the liability and underinsured/uninsured status of the other
      motorist. Brainardv. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
      2006). See also Henson v. Southern Farm .Bureau Casualty Insurance Company, 17
      S.W.3d 652, 653-54 (Tex. 2000).

      The Defendant further objects as Plaintiff is not entitled to discovery of privileged
      info1mation regarding bad-faith claims so long as the insurance company's liability under




                                                                                                      MR 24
      the underlying liability claim remains undetermined. See Marylatui Am. Gen. Ins. Co. v.
      Blackmon, 639 S.W.2d 455, 457~58 (Tex. 1982).

      The Defendant further objects to this request on the grounds it violates the attorney client,
      attorney work product, witness statement and party communication privileges.

14.   All documents relating to any initial determination, temporary determination, tentative            l.i
      determination, or final determination regarding whether Plaintiff's claim herein is
                                                                                                         i'
      payable or not payable,                                                                            ;


      RESPONSE:

      111e Defendant objects to this request as it is overly broad, vague and unduly
      burdensome.

      The Defendant furtber objects to this request on the gronnds it violates the attorney client,
      attorney work product, witness statement and party communication plivileges.

      The Defendant further objects to this request to the extent that it is outside the scope of
      discovery as it regards matters that are not relevant to tbe subject matter of this present
      lawsuit, seeks information which is not relevant to the claims asserted by the Plaintiff;
      and is not reasonably calculated to lead to the discovery of admissible evidence pursuant
      to the Texas Rules of Civil Procedure.

      The Defendant furtber objects to this interrogatory in that the Plaintiff has the burden of
      proof to evince that relevant to any issue in this cause. In order for the Plaintiff to
      recover under their DIM claim, they must prove that the pmported
      underinsured/uninsnred motorist negligently caused the accident that resulted in their
      purported dan1ages. See Allstate Ins. Co. v. Bonner, 51 S.W.3d 289, 291-92 (Tex.2001);
      Welltsch v. United Servs. Auto. Ass'n, 75 S.W.Jd 53, 57 (Tex.App.-San Antonio 2002,
      pet denied).                                                                                        II
      The Defundant further objects to this request to the extent that the documents called for          I
      therein is not relevant to any ill sue in this cause. The Plaintiff has yet to obtain judgment      I
                                                                                                          ~    .
      establishing the liability and underinsured/tu1insured status of the other
      motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
                                                                                                          I
                                                                                                         .:    '


      2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
      S.W.3d 652, 653-54 (Tex. 2000).

      Without waiving said objections, please see attacheddoclllllenis.




                                                                                                       MR 25
                            --------------,




         .. .;   . _.. ..
                     :                                                 .'   '




15,   All documents and testimony regarding Plaintiff, Patricia Tompkins, or any aspect of the
      collision made the subject oflhis h1wsuit that Defendant has obtalned through the use of
      subpoenas and/or depositions on wdtten questions. (Plaintiff will pay a reasonable fee for
      photocopies ofresponsive documents.)
                                                                                                        i.
      RESPONSE:

      Plaintiff should be in possession of all medical records and other records pe1iaining lo
      Plaintiff. If and when Defendru1t obtains such records, Defendant will make these
      records available to the Plaintiff for inspection upon reasonable notice and will furnish
      copies to any party who requests copies at that party's expense pursuant to TRCP Rule
      205.3(e). Additionally, Plaintiff will be given an equal opportunity to obtain these records
      at the time they are made available to !bis Defendant by the records service.
                                                                                                        !
16.   To the extent not already produced by either pai:ty herein, all medical and/or billing
                                                                                                        ,.
                                                                                                        i'

      records regarding ThomM Jackson, whether obtained before or since the :filing of this
      lawsuit (Plfilntiff will pay a reasonable fee for photocopies of responsive documents.)

      RESPONSE:
                                                                                                        !.
      Plaintiff should be in possession of all medical records and other records pertaining to
      Plaintiff. If and when Defendant obtains such records, Defendant will make these
                                                                                                        I:
      records available to the Plaintiff for inspection upon reasonable notice and will furnish
      copies to any party vvho requests copies at that pru·ty' s expense pursuant to TRCP Rule
      205.J(e), Additionally, Plaintiff will be given an equal oppmtunity to obtain these records
      at tbe time they are made available to this Defendant by the records service.

17,   To the extent not already produced by Defendant herein, all documents obtained by or on
      behalf of Defendant through the nse of an authorization furnished to Defendant by
      Plaintiff.

      RESPONSE:

      Plaintiff should be in possession of all records pertaining to Plaintiff. IT and when
      Defendant obtains such records, Defendant will make these records available to the
      Plaintiff for inspection upon reasonable notice and will furnish copies to any pm:ty who
      requests copies at that party's expense pursuant to TRCP Rule 205.3(e), Additionally,
      Plaintiff will be given an equal opportunity to obtain these records at the tirne they are
      made available to this Defendant by fue records service.




                                                                                                     MR 26
    . ..
---,,.-~----------~·~---
  ··· ... ·: ~                                                                          .   ··.•                   .,.·,   .




           18.   All documents, records, repmts, notations, and/or memoranda regarding the Plaintiff
                 from persons and/or entitles that compile information regarding bodily injury claims,
                 health insurance claims, liability/property/casualty insurance claims, worker's
                 co111pensation claims, and other :insurance claims, including but not !imi:ted to the
                 Insurance Services Office ("ISO"), Southwest Index Bureau, and all similar persons or
                 entities.

                 RESPONSE:

                 The Defendant objects to this request as it is av.orly broad, vague and unduly
                 burdensome.

                 The Defendant further objects to this request 011 the gro1inds it violates the attorney client,
                 attorney work produc~ witness statement and party communication privileges.

                 The Defendant further objects to this reqllest to the extent that it is outside the scope of
                 discovery as it regards matters that arc not relevant to the subject matter of this present
                 lawsuit, seeks informati011 which is not relevant to the claims asserted by the Plaintiff,
                 and is not reasonably calculated to lead to the discoveiy of admissible evidence pursuant
                 to the Texas Rules of Civil Procedure.

                 Defendant asse1ts its pdvileges relating to computer programs, manuals, and database
                 information to the extent that it constitutes Trade Secrets and other proprietary
                 information. See Tex. R. Civ. Evidence 507; Tex. R. Civ. P. 76(a)(2)(c); Computer
                 Assoc. Int. 7v. Altai, Inc., 918 S.W.2d453, 455 (Tex.1996), RESTATEMENT (213) OF
                 TORTS - 757, comment (b). Plaintiff has the burden of establishing the information
                 reqi1ested herein is necessary for a fuir adjudication of th.is claim which bas not been
                 established to date. Defendant asserts that the benefit that Plaintiff might obtain from this
                 infmmation, if any, doe s not and cannot outweigh harm of disclosure to the defendant.
                 See In re Leviton Mfg. Co. inc., 1 S.W.3d 898, 902 (Tex. App.-Waco 1999, odg.
                 proceeding).

           19.   All peer reviews, audits, medical summaries, memoranda, notes, letters, and other
                 documents relating to or compiled from the medical records that Plaintiff has submitted
                 for payment pursuant to .the policy at issue herein and/or injuries that Plaintiff claims
                 were caused by the collision made the basis of this lawsuit.

                 RESPONSE:

                 The Defendant objects to this request as it is overly broad, vague and unduly
                 burdensome,

                 The Defendant further objects to this request on the grounds it violates the attorney client,
                 attorney work product, witness statement and party communication privileges.




                                                                                                                               MR 27
      The Defendant futther objects to this request to the extent that it is outside the scope of
      discovery as it regards matters that are not relevant to the subject matter of this present         i
                                                                                                                I
      lawsltlt, seeks information which is not relevant to the claims asse1ted by the Plaintiff,
      and is not reasonably calculated to lead to the discovery of admissible evidence pursuant           I
                                                                                                          I
                                                                                                                I
                                                                                                                I'
                                                                                                                 i
      to the Texas Rules of Civil Procedure.
                                                                                                                I,.
      The Defendant farther objects to this request to the extentthat the doclllllents called for         I     I'
      therein is not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment
                                                                                                          t
                                                                                                          l     r·
                                                                                                          l·
                                                                                                                i•
      establishing the liability and underinsured/m1insured status of the other                           1I
      motorist. Brainard v. Trinity Universal Insurance Company, 216 S. W.3d.809 (Tex.
      2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17                       I     1·

      S.W.3d 652, 653-54 (Tex. 2000).                                                                     I
                                                                                                          I
                                                                                                          I
      The Defendant farther objects as Plaintiff is not entitled to discovery of privileged               I     ,.
      information regarding bad-faith claims so long as tbe insurance company's liability under
      the underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
      Blackmon, 639 S.W.2d455, 457-58 (Tex. 1982).
                                                                                                          I
                                                                                                          I
20.   All liability work-ups or reports relating to Plaintiff's claim for uninsured/underinsured          I
                                                                                                          I
      motorist coverage benefits.                                                                         I


      RESPONSE;
                                                                                                          I'
                                                                                                          i
      The Defendant objects to thls request as it is overly broad, vague and m1dnly
      burdensome.

      The Defendant ftu:fuer objects to this request on the grounds it violates the attorney client,      I
      attomey work product, witness statement and party conununication privileges.

      The Defendant ftuiher objects to this request to the extent that it is outside the scope of
      discovery as it regards matters that are not relevant to the subject matter of thi~ present
      lawsuit, seeks infurmation which is not relevant to the claims asserted by the Plaintiff,
      and is not reasonably calculated to lead to the discovery of admissible evidence pursuant           !
      to the Texas Rules of Civil Procedure.                                                              "!.
                                                                                                          l

                                                                                                          ,.
      The Defendant farther objects to thls request to the extent that the documents called for           !

      therein 1' not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment
      establishing the liability and underinsured/uninsm:ed status of the other
      motorist. Brainardv. Trinity Unrversal Insurance Company, 216 S.W.3d.809 (Tex.
      2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
      S.W.3d 652, 653-54 (Tex. 2000).

      The Defendant farther objects as Plaintiff is not entitled to discovery of privileged
      infonnation regarding bad-faith claims so long as the insurance company's liability under




                                                                                                       MR 28
.. :.·... -i   ' ; ..                                     I   ,·_-   ......... "*'"•~·" ••• ,.   • '   !   •i   < •• ;,




                              the underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
                              Blackmon, 639 S.W.2d455, 457-58 (Tex. 1982).

                        21.   All doc1unents relating to your use, if any, of computer software programs in reviewing,
                              analyzing, and/or evaluating claims of injury in motor vehicle collisions during 2013 and
                              2014.

                              RESPONSE:

                              The Defendant objects to this request on the grounds it violates the attorney client,
                              attorney work produCt, witness statement and party communication privileges.

                              The Defendant further objects to this request as it is overly broad, vague and unduly
                              b11rdensome.

                              The Defendant further objects to this request to the extent that it is outside the scope of
                              discovery as it regards matters that are not relevant to the subject matter of this present
                              lawsuit, seeks information wbich is not relevant to the claims asserted by the Plaintiff,
                              and is not reasonably calculated to lead to lhe discovery of admissible evidence pursuant
                              to lhe Texas Rules of Civil Procedure.
                                                                                                                                 i
                              TI1e Defendant asserts its privileges relating to computer programs, manuals, and                  I
                              database information to the extent that it constitutes Trade SeCiets and oilier proprietary        I
                              information. See Tex. R. Civ. Evidence 507; Tex. R. Civ. P. 76(a)(2)(c); Computer
                              Assoc. Int. 7 v. Altai, Inc., 918 S.W.2d 453, 455 (Tex. 1996), RESTATEMENT Q.13) OF
                              TORTS - 757, comment (b). Plaintiff bas the burden of establishing tbe information
                              requested herein is necessary for a fair adjudication of thls claim which has not been
                              established to date. Defendant asserts that the benefit that Plaintiff might obtain from this
                              information, if any, doe s not and cannot outweigh harm of disclosure to the defendant.
                              See In re Leviton Mfg. Co. Inc., 1 S.W.3d 898, 902 (Tex. App.~Waco 1999, orig.
                              proceeding).

                              The Defendant further objects to this request to the extent that the documents called for
                              therein is not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment
                              establishing the liability and underinsured/uninsuredstatus of the other
                              motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
                              2006). See also llenson v. Southern Farm Bureau Casualty Insurance Company, 17
                              S.W.3d 652, 653-54 (Tex. 2000).

                              111e Defendant further objects as Plaintiff is not entitled to discovery of privileged
                               infurmation regarding bad-faith claims so long as tlle insurance company's liability under
                                                                                                                                 "•
                              the underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
                              Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982).




                                                                                                                              MR 29
                                            . i



                  • • :.J   I. •                          ..•   ''. ··1




22.   All documents relating to your use, if any, of computer software programs in reviewing,
      a11alyzing, and/or evaluating Plaintiff's claims of injury in the motor vehicle collision that
      forms the basis of this lawsuit

      RESl'ONSE:

      The Defendant objects to this request on the gro11Dds it violates the attorney client,
      attorney work product, witness statement and party colillJlunication privileges,

      The Defendant further objects to this request as lt is overly broad, vague and unduly
      burdensome.

      l11e Defendant further objects to this request to the extent that lt is outside the scope of
      discovery as it regards matters that are not relevant to the subject matter of this present
      lawsuit, seeks infom1ation which is not relevant to the claims asserted by the Plaintiff,
      and is not reasonably calculated to lead to the discovery of admissible evidence pursuant
      to the Texas Rliles of Civil Procedure,

      Defendant asserts its p1ivileges relating to computer progran1S, manuals, and database
      infonnation to the extent that it constitutes Trade Secrets and other propdetary
      information. See Tex. R. Civ. Evidence 507; Tex. R. Civ. P. 76(a)(2)(c); Computer
      Assoc. Int. 7 v. Altai, Inc., 918 S.W.2d 453, 455 (Tex, 1996), RESTATEMENT (213) OF
      TORTS - 757, comment (b), Plaintiff has the burden of establishing the information
      requested herein is necessary for a fair adjudication of this claim which has not been
      established to date. Defendant asse1ts that the benefit that Plaintiff might obtain from this
      information, if any, doe s not and cannot outweigh harm of disclosure to the defendant.
      See In re Levi/on Mfg. Co, Inc., 1 S.WJd 898, 902 (Tex. App.-Waco 1999, orig.
      proceeding).

      The Defendant further object5 to 1hls request to 1he extent that the documents called for
      therein is not relevant to any issue in this cause. The Plaintiffhas yet to obtainjndgment          I
                                                                                                          I·

      establishlng1he liability and underinsiJredfuninsured status of the other                           1.
      motorist, Brainardv. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.                      I
                                                                                                          !
      2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
      S.WJd 652, 653-54 (Tex. 2000).

      The Defendant further objects as Plaintiff is not entitled to discovery of privileged
      information regarding bad-faith claims so long as 1he insurance company's liability under
      the underlying liability claim remains undetermined. See Maryland Am. Gen Ins. Co. v.               ,.
      Blackmon, 639 S.W.2d 455, 457-58 (Tex, 1982).                                                       !
                                                                                                          '




                                                                                                       MR 30
_.,


                                                                            . · .... ~:-·--                      <   !




      23,   All documents containing your policies, procedures, processes, and/or mles used by your
            employees to assist in their evaluation of uninsured/underinsured motorist claims.

            RESPONSE:

            The Defendant objects to this request as it is overly broad, vague and unduly
            burdensome.

            The Defendant further objects 1D this request on the grounds it violates tl1e attorney client,
            attorney work product, witness statement and party communication privileges.

            The Defendant further objects to tbis request to the extent tbat it is ontside the scope of
            discovery as it regards matters tbat are not relevant to the subject matter of 1his present
            lawsuit, seeks information which is not relevant to 1he claims assetted by tbe Plaintiff,                i
                                                                                                                     I.
                                                                                                                     ;
            and is not reasonably calculated to lead to tlie discovery of admissible evidence pursuant
            to 1he Texas R11les of Civil Procedure.

            The Defendant further objects to tbis request to the extent tbat the documents called for
            therein is not relevant to any issllf) in tbis cause. The Plaintiff has yet to obtainjudg.tllent
            establishing the liability and underins1n-ed/uninsured status of!he other
            motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
            2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
            S.W.3d 652, 653-54 (Tex, 2000).

            The Defendant further objects as Plaintiff is not entitled to discovery of privileged
            information regarding bad-faith claims so Jong as fue insurance company's liability under
            the underlying liability claim remains undetermined. See Maryland Am, Gen. Ins. Co, v.
            Blackmon, 639 S.W.2d 455, 457-58 (Tex, 1982).

      24.   All dociunents containing your policies, procedures, processes, and/or rnles 1IBed by your
            employees to assist in their evaluation of antomo bile collision bodily injury claims.

            RESPONSE:

            The Defendant objects to this request as it is overly broad, vague and unduly
            burdensome.

            The Defendant further objects to this request on the grounds it violates the attorney client,
            attorney work product, witness statement and party comm\!Jlication privileges.

            The Defendant fiuther objects to this request to the extent that it is outside the scope of
            discovery as it regards matters that are not relevant to the subject matter of this present
            lawsuit, seeks information which is not relevant to the claims asserted by the Plaintiff,




                                                                                                               MR 31
.   .,   ;-:.




                  and is not reasonably calculated to lead to the discovery of admi'lsible evidence pursuant
                  to the Texas Rules of Civil Procedure.

                  The Defendant further objects to this request to the extent that the documents called for
                  the1·ein is not relevant to auy issue in fuls caru;e. The Plaintiff has yet to obtain judgment
                  establishing the liability and underinstn·ed/uninsurcd status of the other
                  motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Iex.
                  2006). See also Henson 11. Southern Farm Bureau Casualty Insurance Company, 17
                  S.W.3d 652, 653-54 (Tex. 2000).
                                                                                                                      l
                  TI1e Defendant further objects as Plaintiff is not entitled to discovery of privileged              i'
                  info1mationregarding bad-faith claims so long as the insurance company's liability under
                  the underlying liability clalm rcmalns undetermined. See Maryland Am. Gen. Ins, Ca. v.
                  Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982).

            25.   Pursuant to Texas Rule of Evidence 609(f), all documents supporting each criminal
                                                                                                                     I
                  conviction of any person identified by any party herein as having knowledge of relevant
                  facts that you intend to use for impeachment

                  RESPONSE:

                  The Defendant does not have any documents in its possession, custody or control
                  responsive to this request.

            26.   All reports, memoranda, and other documents related to your evaluation of any claim for
                  be1iefits made by Plaintiff other than the claun at issue herein.

                  RESPONSE:

                  The Defendant objects to this request as it is overly broad, vague and unduly
                  burdensome.

                  The Defendant further objects to this request on the grounds it violates the attorney client,
                  attorney work product, witness statement and party communication privileges.

                  The Defendant further objects to ·this request to the extent that it is outside the scope of
                  discovery as it regards matters that are not relevant to fhe subject matter of this present
                  lawsuit, seeks information which is not relevant to the claims asserted by fhe Plaintiff,
                  and is not reasonably calculated to lead to fhe discovery of admissible evidence pursuant
                  to the Texas Rules of Civil Procedure.

                  The Defendant further objects to this request to the extent that the documents called for
                  thereil1 is not relevant to any issue in this cause. The Plaintiff has yet to obtain.judgment
                  establishing the liability and underinsured/uniusured status of the other




                                                                                                                   MR 32
                                                           I - I


        .. -.·1




      motorist. Brainardv. Trinity Universal lmmrance Company, ;>.16 S.W.3d.809 (Tex,
      2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
      S.W.3d 652, 653-54 (Tex. 2000).
                                                                                                                (·.
      The Defendant further objects as Plaintiff is uot entitled to discovery of privileged                     '·
      infonnation regarding bad-faith claims so long as the insurance company's liability under
      the underlying liability claim remains undetermined, See Maryland Am. Gen. Ins. Co. v.
      Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982).

27.   All documents relating to every initial determination, temporary detem1ination, tentative
      determination, or final determination regarding whether any of Plaintiff's claims other
      than that at issue herein Wa'l payable or notpayable.

      RESPONSE:                                                                                                 l:
                                                                                                                !

      The Defendant objects to this request as it is overly broad, vague and unduly
      burdensome.

      TI1e Defendant further objects to this request on the groui1ds it violates fue attorney client,
      attorney work product, witlless statement and party communication privileges.
                                                                                                           ,.
      The Defendant further objects to this request to the extent tbat it is outside the scope of
                                                                                                           ,
      discovery a'l it regards matters that are not relevant to 1he subject matter of this present
      lawsuit, seeks information which is not relevant to the claims a'lserted by tbe Plaintifl;
      and is not rea'lonably calculated to lead to the discovery of admissible evidence pursuant
      to the Texas Rules of Civil Procedure.

      The Defendant further objects to tlris request to the extenttbatthe documents called for
      therein is not releva11t to any issue in this cause. The Plaintiff has yet to obtain judgment
      establishing the liability and uuderirumred/uninsured status of the other
      motorist. Brainardv. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
      2006). See also Henson v. Southern Farm Bureau Casually Insurance Company, 17
      S.W.Jd 652, 653-54 (Tex. 2000).

      The Defendant fiuther objects a~ Plaintiff is not entitled to discovery of privileged
      infom1ation regarding bad-faith claimll so long as the insurance company's liability under
      the rmderlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
                                                                                                           '·
      Blackmon, 639 S. W.2d 455, 457-58 (Tex. 1982).

      Without waiving said objections, please see attached documents.




                                                                                                        MR 33
                             I   I                                                                                       c '




·1                                                       ,J   I . ·:
                                                                                                                  :,
                                                                                                                  'i:
                                                                                                                  I.
                                                                                                                  I'

                                                                                                                  Ij·
     28.   All documents regarding and/or discussing your refusal to pay 1hc $20,000.00 that you
           offered on April 28, 2014.

           RESPONSE:

           The Detenda11t objects to this request as it is overly broad, vague mid Ullduly
           burdenson1e.

           The Defendant futther objects to this request 011 the grollllds it violates the attorney clie11t,
           attorney work product, witness statement and party coll1lliunication privileges.

           The Defe11dai1t further objects to this request to tl1e extent that th.e documents called for
           tl1erei.n is not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment
           establishing the liability and underinsured/uninsured statl1s of the other
           motorist. Brainardv. Trinity Universal Insurance Company, 216 S,W.3d.809 (Tex.
           2006). S.e also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
           S.W.3d 652, 653-54 (Tex. 2000).

           The Defendmit furfuer objects as Plaintiff iB not entitled to discovery of privileged
           information regarding bad-faith claims so long as the insurance company's liability under
           the underlying liability claim remains undetermined. See Maryland Am. Gen. In.<. Co, v.
           Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982).

           The Defe11dmit further objects to this rnquest to the extent that it is outside 1he scope of
           discovery as it regards matters that are not relevmit to the subject matter of this present
           lawsuit, seeks information which is not relevant to the claims asserted by the Plaintiff,
           and is not reasonably calculated to lead to the discovery of admissible evidence pursuant
           to the Texas Rules of Civil Procedure.

           WithoLtl waiving said objections, please see attached documents.

     29.   All documents reflecting, regarding, and/or discussing premium payments made by
           Plaintiff fur the automobile insurance policy in effect when the collision that is the                 r
           subject of this lawsuit occurred.

           RESPONSE:                                                                                              i
                                                                                                                  ],
           Tue Defendant objects to this request as it is overly broad, vague arid unduly                         ii
           burdensome.
                                                                                                                  ,.I·
                                                                                                                  I'·
           The Defendant further objects to thiB request on the grounds it violates the attorney client,          "1·
                                                                                                                  :1

           attorney work product, witness statement and party communication privileges,                           1!I'
                                                                                                                  !!

           The Defendant further objects to thiB request to the extent that it is outside the scope of            !!
           discovery as it regards matters that are not relevant to the subject matter of 1his present            ·'




                                                                                                               MR 34
                                                                                                  I   '




                           ..
---.-~------ci-.-c,-ccc-.-~--.-...         :er
                                            ..,-..,.,,. .-~
                                                         ...----~.~...,.,....,..~~----~----~...:::r:·.:-:~c--··--;~-.




               lawsuit, seeks information which is not relevant to the claims asse1tecl by the Plaintiff,
               and is not reasonably calculated to lead to the discovery of admissible evidence pursuant
               to the Texas Rules of Civil Procedure.

               The Defendant further objects io this request to the extent that the documents called for
               therein is not relevant to any issue in this caase. The Plaintiff has yet to obtain judgment
               establishing the liability and underinsured/uninsured status of the other
               motorist. Brainardv. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
               2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
               S.W.3d 652, 653-54 (Tex. 2000).

               The Defendant further objects as Plaintiff is not entitled to discovery of privileged
               info1mation regarding bad-faith claims so long as the insurance company's liability under
               the underlying liability claim remains undetennined. See Maryland Am. Gen. Ins. Co. v.
               Blackmon, 639 S.W.2d455, 457"58 (Tex. 1982).

         30.   All documents necessary to determine the name, address, telephone number, ilnmediate
               SLtpervisor, and current employer of all of Defendant's adjusters, employees, agents,
               aod/or representatives that have -reviewed Plaintiffs claim :file from a claims handling or
               claims review standpoint.

               RESPONSE:

               The Defendant objects to this request as it Js overly broad, vague and unduly
               burdensome.

               The Defendant further objects to this reqQest on the grounds it violates the attorney client,
               attorney work product, witness statement and party commllnication privileges.

               The Defendant further objects to this request to the extent that it is outside the scope. of
               discovery as it regards matters that are not relevant to the subject matter of this present
               lawsuit, seeks inforn1ation which is not relevant to the clain1s asserted by tlle Plaintiff,
               and is not reasonably calculated to lead to the discovery of admissible evidence pursuant
               to the Texas Rules of Civil Procedure.

               The Defendant ftuther objects to this request to tlle extent that the documents called for
               therein is not relevant to any issue in this cause. The Plaintiff has yet to obtainjndgment
               establishing the liability and uuderinsured/uuinsured status of the other
               motorist. Brainard v. Trinity Universal Insurance Company, 216 S. W.3d.809 (Tex.
               2006). See also Hemon v. Southern Farm Bureau Casualty Insurance Company, 17
               S.W.3d 652, 653-54 (Tex, 2000).

               The Defendant further objects as Plaintiff is not entitled to discovery of privileged
               information regarding bad-faith claiffiB so long as the insurance company's liability under




                                                                                                               MR 35
                                                                                            ···-·.·1




                                                                                                           I
      fue underlying liablli1y claim remains undetermined. See Maryland Am. C'rtm. Ins, Co. v.
      Blackmon, 639 S.W.2d 455, 457-58 (Tex, 1982).

31.   All documents and/or materials pertaining to any negotiations for settlement or offers of
      settlement that were compiled or created prior to the time of the filing of this lawsuit.                  L
                                                                                                                 l
                                                                                                                 L·
      RESPONSE:
                                                                                                                 I
      The Defendant objects to this request as it is overly broad, vague and unduly                              I
      burdensome.

      The Defendant further objects to this request an the grounds it violates the attorney client,
      attorney work product, witness statement and party communication privJleges.

      lile Defendant further objects to this request to the extent that it is outside the scope of
      discovery as it regards matters that are not relevant to the subject matter of this present
      lawsuit, seeks infonnation which is not relevani to the claims asselted by the Plaintiff,
      and is not reasonably calculated to lead to the discove1y of admissible evidence pursuant
      to the Texas Rules of Civil Procedure.

      The Defendant futther objects to this request to the extent that the documents called for
      therein is not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment
      establishing fue liability and underinsured/uninsured status of the other
      motorist. Brainardv. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
      2006). See also Hen,wn v. Southern Farm Bureau Ca.Yua/ty Jnsw·ance Company, 17
      S. W.3d 652, 653-54 (Tex. 2000).
      The Defendant fuither objects as Plaintiff is not entitled to discovery of privileged
      infonnation regarding bad-faith claims so long as the insurance company's liability under
      the underlying Jiabili1y claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
      Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982).

      Without waiving said objections, please see attached.                                                I
32.   All documents, reports, or investigations relied upon by Defendant in denying or delaying            II
      payment of ru1y benefits to Plaintiff related to the claim thl\t is the subject of this lawsuit.

      RESPONSE:
                                                                                                           I
      The Defendant objects io this request as it is overly broad, vague and nnduly
      burdensome.

      The Defendant further objects to this request 011 the grounds it violates the attorney client,
      attorney work product, wit11ess statement and party communication privileges.




                                                                                                         MR 36
                                                   -----~---------·-,




                              -·   ! .




      The Defendant furthel' objects to this request to tbe extent that it is outside the scope of
      discovery as it regards matters that are not relevant to the subject matter of this present
      lawsuit, seeks information whlch is not relevant to the claims asserted by the Plaintiff,
      and is not reasonably calculated to lead to the discovery of admissible evidence pursnant
      to the Texas Rules of Civil Procedure.

      The Defendant further objects to this intmogatory in that the Plaintiff has the burden of
      proof to evince that relevant to any issue in U1is cause. In order for the Plaintiff to
      recover under their U1M claim, they must prove that the purported
      llJlderinsured/uninsured motorist negligently caused the accident that resulted in their
      purported damages. See Al/stale Ins. Co. v. Bonner, 51 S.W.3d 289, 291-92 (Tex.2001);
       Wellisch v. United Servs. Auto. Ass'n, 75 S.W.3d 53, 57 (Tex.App.-San Antonio 2002,
      pet. denied).

      The Defendant furilier objects to this request to !he extent that the documents called for
      therein is not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment
      e&tablishing the liability and underinsured/uninmred status of the other
      motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
      2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
      S.W.3d 652, 653~54 (Tex. 2000).

      The Defendant further objects as Plaintiff is not entitled to discovery of p1ivileged
      information regarding bad-faith claims so long as the insurance company's liability under
      the underlying liability claim remains undetermined. See Maryland A1n Gen. Ins. Co. v.
      Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982),

33,   All documents regarding any contract that you have with any independent adjuster who
      performed any service on your behalf related to Plaintiff's clairuhetein.

      RESPONSE:

      The Defendant objects to this request "" it is overly broad, vague and unduly                           ~-

      bmdensotne.

      The Defendant further objects to this request on the grounds it violates the attorney client,
      attorney wol'!c product, witness statement and party colll1Il1lnication p1ivileges.

      The Defendant further objects to thIB rnquest to !he extent that it is outside the scope of
      discovery as it regards matters that are not relevant to the subject matter of this present
      lawsuit, seeks information whlch is 11ot relevant to the claims asserted by the Plaintiff,
      and is not reasonably calctilated to lead to the discovery of adtnissible evidence pursuant
      to the Texas Rules of Civil Procedure.




                                                                                                      MR 37
.·,




            The Defendant further objects to this rec1uest to the extent thirt the documents called :for
            therein is not relevant to any issue iu this cause. The Plaintiff has yet to obtain judgment
            establishing the liability and undcrinsured/uninsured status of the other
            motorist Brainard v. Trinity Universal lnswance Compar!JI, 216 S.W.3d.809 (Tex.
            2006). See also Henson v. Soulhern Farm Bw·eau Casualty Insurance Company, 17                      I

            S.W.3d 652, 653-54 (Tex. 2000).                                                                    i

            The Defendant further objects as Plaintiff is not entitled to discovery of p1ivileged
            information regarding bad-faith claims so long as t11e insurance company's liability under
            the underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co, v.
            Blackmon, 639 S.W.2d455, 457-58 (Tex. 1982).

      34,   All documents described or utilized in responding to Plaintiffs Interrogatories, Requests
            for Production, and Requests for Admission.

            RESPONSE:

            The Defendant objects to this request as it is overly broad, vague and unduly
            burdensome.

            The Defendant further objects to this request on the grounds it violates the attorney client,
            attorney work. product, witness statement aud party communication privileges.

            The Defendant fmiher objects to this request to the extent trurt it is outside the scope of
            discovery as it regards matters that are not relevant to the subject matter of this present
            lawsuit, seeks information which is not relevant to the claims asserted by the Plaintiff,
            and is not reasonably calculated to lead to the discovery of admissible evidence pursuant
            to the Texas Rules of Ci~il Procedure,

            The Defendant further objects to tbis request to the extent that the doctunents called for
            therein is not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment
            establishing the liability and tmderinsured/uninsured status of the other
                                                                                                               i '.
            motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.                    !

            2006). See also Henson v. Southern Farm Bureau Casual!y Insurance Company, I 1
                                                                                                               iI.
                                                                                                                ,.
            S.W.3d 652, 653-54 (Iex, 2000).

            The Defendant further objects as Plaintiff is not entitled to discovery of privileged
            information regarding bad-fhlth clallnB so long as the insurance company's liabilify under
            the underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
            Blackmon, 639 S.W.2d 455, 457-58 (Tex, 1982).

            Withont waiving said objections, please see attached documents.




                                                                                                            MR 38
-------------~,-------,




                                                                                                           -..~--~-.



                                                                                                           -: :j.   -~~.~.:·.··.   .




                                               CAUSE NO. 201-1365-A

            THOMAS JACKSON,                             §             JN THE DISTRICT COURT OF
            Plaintiff                                   §
                                                        §
            vs.                                         §              188th JUDICIAL DISTRICT
                                                        §
            AAA TEXAS COUNTY MUTUAL                     §
            INSURANCE COMPANY                           §
            Defendant.                                  §              GREGG COUNTY, TEXAS


                            l>EFENDANT'S OB.JECTlONS and ANSWERS TO
                   PLAtNTIFF TIIOMAS .JACKSON'S FlRST SET OF INTERROGATORIES

            TO:    Thomas .Jack$on, Plaintiff, by and through bis altomeys of record, M. Raymond Hatcher
                   and Alan J. Robertson, Sloan, Bagley, Hatcher & Perry Law Firm, 101 East Whaley
                   Street, Longview, Texas 75601.

                   COMES NOW AAA Texas County Mutual Insurance Company, Defendants lnthe above

            numbered and styled cause, and serves its Objections and Answers to Plaintiff's First Set of

            Intenogatories, in accordance with the Texas Rules of Civil Procedure.

                                                               Respectfully submitted,

                                                               WALTERS, BALIDO & CRAJN, L.L.P.



                                                              /k;~
                                                               CARLOS A. BALlDO
                                                               State Bar No. 01631230
                                                               Meadow Park Tower, Suite 1500
                                                               10440 North Central Expressway,
                                                               Dalli.s, TX 75231
                                                               Tel: 214-749-4805
                                                               Fax: 214-760-1670
                                                               cm1os.balido!i4wbclaw1irm.com

                                                               ATTORNEY FORDEFENDANf




                                                                                                                       MR 39
----,                                    ---------------·-,

                                                              I                     ., ; ·.·
                                                                                 \"f<,..
                                                                                 ..       ,.,
                                                                                       ..,,.;.;; ...




                                        CERTIFICATE OF SERVICE

                This is to certify that a true and conect copy of the foregoing document hru; been mailed,
        faxed, or band delivered to all parties of record, in compliance with Rule 21a of the Texas Rules
        of Civil Procedure, on December~. 2014.

        Via First Cf(lss U.S. Mail
        M. Raymond Hatcher
        Alan J. Robertson
        Sloan,. Bagley, Hatcher & Peny Law Firm
        101 East Whaley Street
        Longview, Texas 75601




                                                     CARLOS A. BALIDO




                                                                                                             MR 40
                                                                         '   I




                          I ...                  .-.i !,~-·                                  ;_   ....
                                            •.,·,'',·1'.    . ··,
                                                           !~.;E'~J-·                                    . I




The Defendant obJccts generally to the Definitions and Instructions set forth at the beginning of
this written discovery request for the reason that they are overly broad, unduly burdensome, and
harassing. Furthet, the Defendant objects to i:hese Definitions and Instructions for the reason that
there is no provision in tl>e Texas Rules of Civil Procedme requiring a party to abide by such
definitions and instructions. TI1e Defendant also objects to the Definitions and fosn-11ctions to the
extent that they seek to impose a greater burden and obligation on the Defendant than is
pcrmissible under the Texas Rules of Civil Procedm·e.

Without waiving or limiting the foregoing general. objection, the Defendant specifically objects
to Plaintiff's discovery as follows:


                      OBJECTIONS AND ANSWERS TO PLAINTIFF'S
                          FIRST SET OF INTERROGATORIES

l.      Identify each person answering these interrogatories, supplying information, and/or
        assisting in any way with tl1e preparatinn of the answers to these interrogatories and/or
        the responses to Plaintiff's Requests for Production and/or Requests for Admission.

        ANSWER:

        The Defendant objects to this interrogatory to the extent that it is outside the scope of
        discove1y as it concerns matters that are not relevant to the subject matter of this present
        lawsuit, it seeks informati011 which is not relevant to the clainrn asserted by the Plaintiff,
        and is not reasonably calculaied lo lead to the discove1y of admissible evidence pursuant
        to the Texas Rules of Civil Proce<l\tre.

        Without waiving said objection, the Defendant answers as follows:

               Frededck Annour
               AAA Texas County Mutual Insurance Company

        The Defendant was assisted by cmmsel in the preparation of the Defendant's objections
        and responses to Plaintiff's written discovery requests.

2.      Identify each eyewitness to all or part of the collision made th" basis of this lawsuit of
        whom yoq are aware and, for each eyewitness, state his/her location when the collision
        made tbe basis oftltls lawsuit occmred.

        ANSWER:

        The Defendant objects to this interrogatory as it is overly broad, vague and unduly
        burdensome.




                                                                                                           MR 41
   j
.,,.




             T1ie Defondruit fltrther objects to this interrogatory as it calls for a narrative response, and
             is an attempt by Plaintiff to improperly limit Defendant's testimony.

             Without waiving said objections, Defendant refers Plaintiff to the individuals identified
             as relevant fact witnesses in response to Plaintiffs Request for Disclosure.

       J.    To the extent not already produced herein, describe each separate file containing records,
             documents, and/or information relating to Plaintiff and/or Plaintiff's claims, iucluding in
             yout description for each file, the file's name, the file number, its descriptive title
             assigned to it in the ordinary course of your business, each custodiru1ofthe file, the file's
             contents, and its current location.

            . ANSWER:

             The· Defendant objects to this interrogatory as it is overly broad, vague and unduly
             bw·densome.

             The Defendant further objects to this interrogatory as it calls for a narrative response, and
             is an attempt by Plaintiff to improperly limit Defendant's testimony'.

            The Defendant further objects to this request on the grounds it violates the attorney client,
            attorney work product, witness statement and party commullication p11vileges.

            The Defendant further objects to this interrogatory to the extent that it is outside the
            scope of discovery as it regards matters that are not relevant to the subject matter of this
            present lawsuit, it seeks inforrnatio11 which is not relevant to the claims asserted by tbe
            Plaintiff, and it is not reasonably calculated to lead to the discovery of admissible
            evideoce pursuant to the Texas Rules of Civil Procedure.

            · The Defendant finthet objects to this inteITogatory in that fue Plaintiff has tl1e burden of
              proof to evince that relevant to any issue in this cause. In order for the Plaintiff to
              recover under their DIM clailn, they must prove that the purported
              u11derinsured/llllinsured motorist negligently caused the accident that resulted in their
              purported damages. See Allstate In.s. Co. v. Bonner, 51 S.W.3d289, 291-92 (Tex.2001);
              Wellisch 11, United Servs. Auto. Ass'n, 75 S.W.3d 53, 57 (fex.App.-Sau Antonio2002,
              pet. denied)

            The Defendant further objects to this request to the extent fuat the documents called for
            therein is not relevant to any iss11e in this cause. Tue Plaintiff has yet to obtain judgment
            establishlligthe liability and underinsured/uninsured status of the other
            motorist. Brainard v. Trinity Universal lnrorance Company, 216 S.W.3d.809 (Tex.
            2006). See also Henson v. Southern Fann Bureau Casualty Insurance Company, 17
            S.W.3d 652, 653-54 (Tex. 2000).




                                                                                                                MR 42
                           ----------------~-,




                                                                    I ......
                                                                    f~~~_;.
                                                      ...   ~·-:.                                    ~   ·•·.·   .




     Defendant objects as Plaintiffs are not entitled to discovery of ptivileged information
     regarding bad-faith claims so long as the insurance company's liability under the
     undeJ:lying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
     Blackmon, 639 S.W.2d 455, 457-58 (fex. 1982).

     Without waiving said objections, the Defendant refers Plaintiff to documents produced.

4.   Jf you, your attorneys, or anyone acting on your behalf 01· on your attorneys' behalf took
     or obtained photographs, videotape, mag110tic, digital, or electronic images, or other
     images of the collision scene, vehides, or parties involved, please provide the name,
     address, a11d telephone number of tbe person having custody of such images, the date on
     which the images were taken or made, and the name of tbe person( s) taldng or making
     such images.

     ANSWI<~R:


     The Deferrdant objects to this request as it is overly broad, vague and unduly
     burdensome.

     The Defendant further objects to this interrogatory to the extent that it is outside the
     scope of disco very as it regards matters that are not relevant to the subject matter of this
     present lawsuit, it seeks information which is not relevant to the clairni: asse1ted by the
     Plafotiff, and it is not reasonably calculated to lead to fue discovery of admissible
     evidence pursuant to the Texas Rules of Civil Procedure.

     Tl1e Defendant further objects to tbis intmogatory in that the Plaintiff has tlie burden of
     proof to evince that relevant to any issue in fuis cause. Jn order for the Plaintiff to
     recover under their DIM claim, they must prove that the purported
     unde1insured/uninsured motorist negligently caused the accident that resulted in their
     purported damages. SeeAllstateins. Co. v. Bonner, 51 S.W.3d 289, 291~92 (Tex.2001);
     Wellisch v, United Servs. Auto. Ass'n, 75 S.W.3d 53, 57 (Tex.App.-San Antonio 2002,
     pet. denied)

     The Defendant further objects to this request to the extent that the documents ruilled for
     therein is not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment
     establishing the liability and underi11"'1red/uninsured status of the other
     motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
     2006). See also Henson v. Southern Fann Bureau Casualty insurance Company, 17
     S. W.3d 652, 653-54 (Tex, 2000).

     TI1e Defendant further objects as Plaintiffs are not entitled to discovery of privileged
     information regarding bad-faith claims so long as tbe insurance company's Uability under
     tbe underlying liability claim remains undetermined. See Maryland An' Gen. Ins. Co. v.
     Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982).




                                                                                                                     MR 43
                                             --,


     ·J
                                                                                                                ...   _,......   ____
                                                                                                          ·,l     i•""•




          Without waiving said objections, the Defendant refers the Plaintiff to photographs and
          documents produced in Defendant's Responses to Plaintiff's Request for Production.

5.        Identify by name, employer (if different from Defendant) business address, job title, and
          telephone munber of each iI1dividUJ1l who will be Defendant's in-court representative.

          ANSWER;

          The Defendant objects to this request as it is overly broad, vague and unduly
          burdensome.

          Without waiving said objections, Defendant's in-comt representative will be Frederick
          Armour.

6.        Identify by name, employer (if different from Defendant) business address, job title,
          telephone number aud role of each of Defendant's employees, agents, repl'esentatives,
          adjusters, independent adjusters, independent a<ljusili1g firms, consultants, and any entity
          or indivjdual acting under any oral or written agreement, who perlormed any claims
          work, participated in the evaluation of Plaintiff's claim, and/or claims services of
          any type or nature with respect fo the insurance claims involved ln this litigation.

          ANSWER:

          111e Defcndru1t objects to 1his request as it is overly broad, vague and unduly
          burdensome,

          The Defendant further objects to this request on the grounds it violates the attorney client,
          attorney work product, witness statement and party communication privileges.

          The Defendant further objects to this interrogatory to the extent that it is outside the
          scope of discovery as lt regards matters that are not relevant to the subject matter of this
          present lawsuit, it seeks information which is not relevant to the claims asserted by the
          Plafotiff, and it is not reasonably calculated to lead to the discovery of admissible
          evidence pursuant to the Texas Rules of Civil Procedm·e.

          The Defendant further objects to this interrogatory h11batthe Plaintiff has the burden of
          proof to evince tlmt relevant to ruly issue in tlUs cal1se. In ordel' for the Plait1tiff to
          recovet under their UIM claim, they must prove that the purpm1ed
          underlnsurecl/uninsured motorist negligently caused the accident that resulted in their
          purported damages. See Allstate Ins. Co. v. Bonner, 51S.W.3d289,291-92 (Tex.2001);
          Wei/is-ch v. Umtcd Servs. Auto. Ass'n, 75 S.W.3d 53, 57 (Tex.App.-San Antonio 2002,
          pet. denied)

          The Defenda11t further objects to this request to the extent that the documents callee! fur
          therein is not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment




                                                                                                            MR 44
                                                           ~~----~~-------··-,
                                    I   '




                       .,   ·;:,-
                                              j
                                                                                            '.
                                              '




     establishing the liability and underinsured/uninsured status of the other
     motorist. Brainardv. Trinily Uni.versa/ Insurance Compaey, 216 S.W.3d.809 (Tex.
     2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
     S.W.3t{ 65:>,, 653-54 (Tex. 2000).

     The Defendant further objects as Plaintiffs are not entitled to discovery of. privileged
     information regarding bad"faith claims so long aB the insurance company's liability under
     the tmderlying liability claim remains i.mdetermined. See Maryland Am. Gen. Ins. Co. v.
     Blackmon, 639 S.W.2d 455, 457-58 (Tex. J982).

     The Defendant further objects to 1his Jntei:rogatory as it calls for a narrative response, and
     is an attempt by Plaintiff to impropeily limit Defendant's testimony.

     Without waiving said objections, Neiman Miller, AAA Texas County MuttJal Insurance
     Company; Frederick Arm.our, AAA Texas County Mutual Insurance Company; aud Clint
     Smith, Property Damage Appraisers.

7.   Identify every medical doctor, physician, osteopath, physician's assistant, and!or nurse
     who has reviewed medical records of Thomas Jackson in CO!llIBction with the claim for
     uninsnred/uuderlnsured motodst benefits that are the subject of this lawsuit.

     ANSWER:

     TI1e Defendant objects to this request on the grounds it violates the attorney client,
     attorney wotlcprodiict, witness statement.and party connnunication privileges.

     The Defendant further objects to this h1te1mgatory to the ex(ent that it is outside the
     scope of discovery as it regards .OJ.alters that are not relevant to the subject matter of this
     present lawsuit, it seeks information which is not relevant to the claims asse1ied by the
     Plaintiff, and it is not reasonably calculated to lead to the discovery of admissible
     evidence pursuant to the Texas Rules of Civil Procedure.

     The Defendant further objects to this interrogatory in that the Plaintiff has the burden of
     proof to evince that relevant to any issue in this cause. !11 order for the Plaintiff to
     recover under their UIM claim, they must prove that the purported
     i.inderinsured/unimmred motorist negligently caused the accident thattesulted in their
     purported damages. See Allstate Ins. Co. v. Bonner, 51S.W.3d289,291-92 (Tex.2001);
      Wellisch v. UrritedServs. Auto. Ass'n, 75 S.W,3d 53, 57 (Tex.App.-San Antonio 2002,
     pet. denied),

     The Defendant further objects to this request to the extent that the documents called for
     therein is not relevant to any issue in tbis cause. The Plaintiff has yet to obtain judgment
     establishing the liability and underinsmedfuninsured status of the other
     motodst. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex:.




                                                                                                       MR 45
                                                                                                              . . . . .... '
                                                                                                                          '


                                    I   ~··-··

                                    b}~··,
                                    ~~~;<~.                                                        I   ..-.




     2006). See also Henson v. Southern Farm Bi1reau Casualty Insurance Company, 1. 7
     S.W.3d 652, 653-54 (Tex. 2000).

     Tlie Defendant further objects as Plaintiffs are uot eutitled to discovery of privileged
     information regarding bad-faith claims so long as the insutance company's liability under
     the ui1derlying liability claim remains \llldetermined. See Maryland Am. Gen. Ins. Co. v.
     Blackmon, 639 S.W.2d455, 457-58 (Tex, 1982).

     The Defendant further objects to this lnterrogato1y as it calls for a nanative response, and
     is an. attempt by Plaintiff to impropedy limit Defendant's testimony.

     Defendimt further objects to fuis Request to fue extent that it seeks infonnation that
     exceeds the scope of discovery. Further, the Texas Rules of Civil Procedure, Rule 195.1
     provides that a party may request iJ1for:rnation concerning testifying expert witnesses only
     tlirough a request for disclosure and through deposition.

     Plaintiff should be in possession of all meilical records and other records pertaining to
     Plaintiff If and when Defendant obtains such records, Defendant will make these
     records available to the Plaintiff for inspection up011 reasonable notice and will furnish
     copies to any party who requests copies at that party's expense pursuant to TRCP Rule
     205.3(e). Additionally, Plaintiff will be given an equal opportunity to obtnin these records
     at the time they are made available to this Defendant by the records service.

S.   Identify each of your employees who played any role in evaluating Plaintiff's claim,
     authorized any proposed payment to be made to Plaintiff, and/ot made decisions
     regai-ding any adjuster's a11thority to pay or deny Plaintiff's claim relating to
     uninsured/1.Jnderillsured motorist coverage purchased by Plaintiff.

     ANSWER:

     Defendant objects to this Request as being over broad, vague, ambiguous and outside fue
     scope of proper discovery. See Laflin v. Mar/In, 776S.W.2d145, 148 (Tex. 1989).

     The Defendant farther objects to this request 011 the grotinds it violates the attorney client,
     attomey work procluct, witness statement and party communication privileges.

     The Defendant further objects to tliis interrogatory to the extent that it is outside the
     scope of discovery as it concerns matte!'s that are not relevant to tbe subject matter of this
     present lawsuit, it seeks infonnation which is not relevant to the claims asserted by the
     Plaintiff, and is not reasonably calculated to lead to the discovery of admissible evidence
     pursuant to the Texas Rules of Civil Procec!ure.

     Defendant farther objects as Plaintiffs are not entitled to discovery of privileged
     information regarding bad-faith claims so long as the insurance company's liability under




                            ,.
                                                                                                                       MR 46
                                                 -,----                   .,




     the underlying liability claim remains undetetnlined, See Mcrryfand Am. Gen, Ins. Co. v.
     Blackmon, 639 S.W.2d 455, 457-58 (Tex:. 1982).

     The Defendant fatiher objects to this interrogatmy in fuat the Plaintiff has the burden of
     proof to evince that relevant to any issue in this cause. In order for the Plaintiff to
     recover under their DIM claim, they must prove that the purported
     underinsured/uninsured motorist negligently caused the accident that resulted in their
     purpoited damages. See Allstate Ins. Co. v. Bonner, 51 S.W.3d 289, 291-92 (Tex.2001);
     Wellisch v. United Servs. Auio. Ass'n, 75 S.W.3d 53, 57 (Tex.App.-San Antonio 2002,
     pet. denied)

     The Defendant further objects to this request to the extent that the documents called for
     therein is not relevantto any issue iu this cause. The Plaintiff has yet to obtain judgmeut
     establishing the liability and underinsured/unins\lred status of the other
     motorist. Brainardv. Trinity Unf11ersaf Insurance Company, 216 S.W.3d,809 (Tex.
     2006). See also Ifenson v. Southern Farm Bwreau Casualty Insw-ance Company, 17
     S.W.3d 652, 653-54 (Tex. 2000).

     Without waiving said objections, Neiman Jvfiller, AAA Texas County Mutual Insurance
     Company and Frederick A1mour, AAA Texas County Mutual Insurance Company.

9.   If you have :information that has not already beeu produced herein regarding any other
     claims for personal iiajury of any type fuat were made or may have bee11 made by the
     Plaintiff 01· by Patricia Tompkins since the collision made the basis of this suit, please
     state all information you have regarding each such claim, specifically including but not
     limited to;

     a. The date of the claim;
     b. The type of fue claim;
     c. The name oft!1e persou making the claim;
     d. The other parties bivalved in ti1e claim;
     e. The injuries claimed in the incident made the basis of this claim
     f. The identity of all medical providers iuvolved in treating an.y injury claimed in the
        incident made the basis of the claim
     g. Each llisurer and claim number assigned to 1he claim; and
     h. 111e disposition of the claim.

     ANSWER:

     The Defendaut objects to tbis request as it is overly broad, vague and unduly
     burdensome.

     Defendant objects to this Request as being outside the scope of discove1y as it concerns
     matters that are uot relevaut to the i11Stant litigation nor is the request reasonably




                                                                                                   MR 47
                        !   I




                                                      ·...•ii-   '~~?.. '
                                                      . '.~lrl   ~-'5'il:.{,-i.:




           calculated to lead to the discovery of admissible evidence pursuant to the Texas Rules of
           Civil Procedure.

           The Defendant furfuer objects to this in.te1wgatory as it calls for a nan1l.tive response, and
           is an attempt by Plaintiff to imprope.tly limit Defondanfs testimony.

           Without waiving said objectio·ru;, none.

     10.   Pursuant to Texas Rule of Evidence 609(f), identify by stating the date, cause nmnber,
           offense, illld co mt foT eacl1 ctinrinal conviction of the Plaintiff and any person designated
           by any party as h!lving knowledge of facts relevant to this matter pursuant to Texas Rl\le
           of Civil Procedure 194.2(e),

           ANSWER:

           The Defendant is not aware of any a\ this tirne.

     11.   Pursuant to Texas Rules of Civil Procedure 194.2(d) and 192.3(a); if you contend that
           you are entitled to a credit or offset against judgment, state for each such credit/offset:

           a. The dollar amount;
           b. Each category(ies) of damages to which yo11 claim the creditloffset applies; and
           c. How you arrived at and/or calculated the dollar !lillOUllt of the credit/offset.

           ANSWER:

           The Dcfeudant objects to this request as it is overly broad, vague and -qnduly
           burdensome.

           The Defendant further objects to this iutenogatory as it calls for a narrative response, and
           is !Ul attempt by Plaintiff to improperly limit Defend!Ult's testimony.

           Without waiving said objections, Defendant refers Plain.tiff to response to Plaintiff's
           194.2.

     12.   State each and every fuctor which yon now contend or will contend at trial caused or
           contributed to causing the Plaintiff's damages including but not limited to pre-e:x:!Bting
           physical or medical conditions of the Plaintiff and, for each such factor, state in general
           the factual basis for your contention.                                          ·

           ANSWER:

           The Defendant objects to this request as it is overly broad, vague and l\nduly
           burdensome,




I;

                                                                                                            MR 48
I   ,               ----------------··-,



                              !   :~- .. '


                              ;~~k;,~                                                        I



              Tlie Defendant further objects to this inte11:ogatory as it cal!s fol' a narrative response, and
              is an attempt by Plaintiff to improperly limit Defendanfs testimony.

              Without waiving said objections, Defendant AAA Texas County Mutual lnsnrance
              Company does 110t have personal knowledge of how the accident occurred. Defendant
              refers Plaintiff to any deposition testimonies obtained in tbis matter, as well as documents
              produced by any party.

        13.   If you contend that the Plaintiff's actions and/or omissions caused or co11tributed to
              causing the collision fro1n which Plaintiff's claim for. uuinsured/underinsured motorist
              benefits arises, describe in gelleral the factual basis for your contention.

              ANSWER:

              The Defendant objects to this request as it is overly broad, vague and unduly
              burdenso1ne.

              The Defendant :futther objects to this interrogatory as it calls for a narrative response, and
              is an a!tempt by Plaintiff to impropm·ly limit Defeudanfs testimony.

              Without waiving said objections, Defendant AAA Texas County Mutual Insmance
              Company does not have personal knowledge of how the accident occurred. Defendant
              refers Plaintiff to any deposition testimonies obtained in this matter, as well as documents
              produced by any party, Further, Defendant makes no contentious at this time.

        14.   lfnot already contained in documents produced herein, state all ptocedmes followed and
              each criteria utilized by Defendant in its investigation and evaluation of Plaintiff's claim.

              ANSWER:

              The Defendant objects to this request as it is overly broad, vague and unduly
              burdensome.

              The Defendant further objects to this request on the groUllds it violates the attorney client,
              attomey work product, witness statement and paity commU11ication privileges.

              The Defendant further objects to this intei:rogatozy as it cal!s for a narrative response, and
              is an attempt by Plaintiff to impraperly limit Defendant's testimony.

              Defendant objects to this Request as being outside the scope of discovery as it concerns
              matters that are not relevant to lbe instant litigation nor is the request reasonably
              calculated~ lead to tl1e discovery of admissible evidence plltsuant to the Texas Rules of
              Civil ProcedUl'e.




                                                                                                                 MR 49
------------~·-,
                                                                               -------------~                       -,



                                       ·1 ::;:/·.             f ..
                                                             !




                 The Defendant further objects to this interrogatory in that the Plaintiff has the burden of
                 proof to evince that relevantto any issue in this cause. In order for the PJainliff to
               · recover under their DJM claim, they must prove that the purported
                 um!erinsured/uninsured motorist negligently caused the accident tbat resulted in tlieir
                purported damages. See Allstate Ins. Co. v. Bonner, 51 S.W.3d 289, 291-92 (Tcx.2001);
                 Wel/isch v. United Servs. Auto. Ass'n, 75 S. W.3d 53, 57 (Tex.App.-San Antonio 2002,
                 pet. denied)

               The Defendant further objects to this request to the extent that the documents called for
               therein is not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment
               establishing the liability and underinsured/uninsured status of the other
               motorist. Brainard v. Trinity Umi•ersa/ Insurance Company, 2.16 S.W.3d.809 (Tex.
               2006). See also [{enson v. Southern Farm Bureau Casualty Insurance Campany, 17
               S.W.3d 652, 653-54 (Tex. 2000).

               Defendant objec1s as Plaintiffs are not· entitled to discovery of privileged information
               regarding bad-faith claims so long as the insurance company's liability under the
               underlying liability claim remains undetermined.. See Maryland Am. Gen. lns. Co. v.
               Blac/anon, 639 S.W.2d45S, 457-58 (Tex. 1982).

         15.   List. identify, and describe all documents not already produced herein that suppo1t your
               contention, if any, that:

               a. Plaintiff failed to meet or perform condition(s) precedent to his bringing this lawsuit;
               b. Plaintiff failed to comply with a term or condition of the-insurance agreement that is
                  the subject otfuis lawsuit; and/or
               c. Plaintiff's claim is excluded from uninsurcd/underinsured motorist coverage pursuant
                  to a term or condition offue insurance agreement that is the subject of this lawsuit.

                ANSWER:

                The Defendant objects to this request as it is overly broad, vague and unduly
                burdensome.

               'Tiie Defendant further objects to this request on the gmunds it violates the attorney client,
                attomey work product, witness statement and party communication privileges.

                The Defendant further objects to this interrogatory as it calls for a narrative response, and
                is an attempt by Plaintiff to improperly limit Defendant's testimony.

                The Defondant ftu·ther objects to this request to fue extent tliat the documents called for
                therein is not relevant to any issue in this cause. The Plaintiff has yet to obtirinjudgment
                establishing the liability and underinsured/uninsured status of 1he other
                motorist. Brainard v. Trinity Universal Insurance Campany, 216 S.W3d.809 (Tex.




                                                                                                                MR 50
··-,



       .I   1,;:




                     2006). See also Henson v. Southern Farm Bureau Casualty insurance Compal'f)', 17
                     S.W.3d 652, 653-54 (Tex. 2000).

                     Defendant objects as Plaintiffs are not entitled to discovery of p11vileged information
                     regarding bad-faith claims so long as tl1e iasurance company's liability llllder the
                     1mderlyiag liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
                     Blackmon, 639 S.W.2d 455, 457-58 (fox. 1982).

                     Withollt waiving said objections, Defendant is not making those contentions at this time.

               16.   State every reason for your denial of Plaintiff's uninsured/llllderinsured motorist claim in
                     excess of your April 28, 2014, offer to pay $20,000.00 (in addition to $5,000.00 in
                     previously paid personal injury protection benefits and $30,000.00 previously paid by
                     Patricia Tompkins' insurance cartler).

                     ANSWER:

                     The Defendant objects to this request as it is overly broad, vague and unduly
                     burden1mrne.

                     The Defendant further objects to this request on the grounds it violates the attorney client,
                     attorney work produc~ witness statement ai1d party communication privileges.

                     The Defendant fm1:her objects to tliis interrogatory as it calls for a naimtive response, and
                     is an atten1pt by Plaintiff to improperly lilllit Defendant's testimony.

                     Defendant further objects to thiB Request as being outside the scope of discovery a' it
                     concems matters that are not relevant 1o the Instant litigation nor i.s the request reasonably
                     calculated to lead to the discovery of admissible evidence pursuant to tbe Texas Rules of
                     Civil Procedure.

                     TI1e Defeadant further objects to this request to the extent tl1at fue documents called for
                     therein is not relevant to any iBsue in this cause. The Plaintiff has yet to obtain judgment
                     establishing the liability aru:l llllderinsured/uninsured status of the otber
                     motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
                     2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
                     S,W.3d 652, 653-54 (Tex. 2000).

                     Defendant objects a' Plaintiffs are not entitled to discovery of privileged information
                     regarding bad-faifu claims so long as the insurance cnmpany's liability under the
                     lmderlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
                     Blackmon, 639 S.W.2d455, 457-58 (Tex, 1982).




                                                                                                                      MR 51
      '•.~;-.,,

      ·""'''•'•
       •,;:_eft,,.~"·-
                                              I .'              . !
      ··.•1E;..•




17.   If you used any computer software program to assist in the evaluation of Plaintiff's claim
      fo1· tminsure<l/underi.nsured motorist benefits arising from bodily injury, state for each
      program:

      a. The name of the program used;
      b. The specific data utilized by the program in evaluating Plaintiff's claims;
      c. All data fields tbatthe program deems reJeva.nt lo evaluating injury claims
      d. The identity of each person who input data regarding Plaintiff into 1he program;
      e. Th" means by which tbe results of the program's analysis are presented to fue
         program user and/or claims adjuster(s);
      f. The identity of each person who received results regarding Plaintiff's claim; and
      g. The methods by which results of the program's analysis are distributed to each end
         user of the info11nation other than the program user and claims a4juster(s).

      ANSWER:

      Defendant objects to this Request as being over broad, vague, ambiguous and outside the
      scope of proper discovery.

      Defendant further objects to this Request as being outside the scope of discovery as it
      concerns matters that are not relevant to the inst:mt litigation nor is the request reasonably
      calcttlated to lead to the discovery of acl1nissible evide11ce pursuallt to the Texas Rules of
      Civil Procedure.

      The Defond:mt furtb.er objects to this interrogatory as it calls for a narrative response, and
      is an attempt by Pl.Pntiff to improperly limit Defendant's testimony.

      The Defendant f\nther objects to this reqtiest to the extent that the documents called fur
      therein is not relevant to any issue in this cause, The Plaintiff has yet to obtainjudgtnent
      establishing the liability and uuderfnsmed/l1ninsured status of the other
      motorist. Brainarcfv. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
      2006). See also Henson v. Southern Farm B1.1reau Casualty Insurance Company, 17
      S.W.3d 652, 653-54 (Tex. 2000).

      Defendant objects as Plaintiffs are not entitled to discovery of privileged information
      regarding bad-faith claims so long as the insurance company's liability llllder the
      underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
      Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982).

      Defendant asserts its privileges relating to computer programs, manuals, and database
      information to the extent that it constitutes trade secrets and other proprietary information.
      See Tex. R. Evidence 507; Tex. R. Civ. P. 76(a)(2)(c); Computer Assoc. Int. 7 v. Altai,
      Inc., 918 S.W.2d 453, 455 (Tex. 1996), RESTATEMENT (213) OF TORTS - 757,
      comment (b). Plaintiff has the burden of establishing the information re'luested herein is
      necessary for a fair adjudication of tltls claim which has not been established to date.




                                                                                                       MR 52
         -,                         I   I




      Defendaut roserts that the benefit that Plaintiff might obtain from this information, if any,
      does not at1d cannot outweigh harm of disclosure to the Defendant See Tn re Leviton Mfg.
      Co. Inc., 1S.W.3d898, 902 (Tex. App.-Waco 1999, orig. proceeding).

18.   List all manuals, instmctions, directions, and materials providing guida11ce regarding the
      use of each computer software program identified ln the foregoing intemigatory.

      ANSWER:

      Defendant objects to this Request as being over broad, vague, ambiguous and outside 1he
      scope of proper discovery.

      Defendant furll:Jer objects to this Request as being outside the scope of discovery as it
      concerns m11tters that are not relevant to the instant litigation nor is the request reasonably
      calculated to lead to the discovery of admissible evidence purruant to the Texas Rules of
      Civil Procedure.

      Tile Defendant fu1iher objects to this interrogatory as it calls for aruirtative response, and
      is an attempt by Plaintiff to improperly limit Defendant's testimony.                                     I
                                                                                                                I
      The Defendant furthe!' objects to this request to the extent that the documents called for
      therein is not relevant to any issne in this cause. The Plaintiff has yet to obtain judgment
                                                                                                                r
                                                                                                                I

      establishing the liability and 1u1deril!sured/uninsured statns oftlw other
      motorist. Brainard 11. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
      2006). See also Henson v. Southern Farm Bureau Casualty Jmurance Company, 17
      S.W.3d 652, 653-54 (Tex. 2001}).

      Defendant objects as Plaintiffs are not entitled to discovery of privileged infoJ'ITiation
      regarding bad-faith .clain1s so long as the insnrance company's liability under the
      underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
      Blackmon, 639 8.W.2d 455, 457-58 (Tex. 1982).

      Defendant asserts its privileges relating to computer programs, manuals, and datahase
      infonnation to the extent that it constitutes trade secrets and other proprietary information.
      See Tex. R. Evidence 507; Tex. R. Civ. P. 76(a)(2)(c); Computer Assoc. Int. 7 v. Altai,
      Inc., 918 S.W.2d 453, 455 (Tex. 1996), RESTATEMENT (213) OF TORTS - 757,
      comment (b). Plaintiff has the burden of establishing the infommtion requested hereirds
      necessary for a fair adjudication of this. claim which has not been estllblished to date.
      Defendant asserts that the benefit that Plaintiff might obtain from this information, if any,
      does not and cannot outweigh hann of disclosure to the Defendant See In re Leviton Mfg.
      Co. Inc., l S.W.3d 898, 902 (Tex.. App.-Waco 1999, orig. proceeding).




                                                                                                        MR 53
      I    I




                                                                                                                          ····· !
          ··''

                                                                                                                  .:AI
                                                                                                                  • :;1 L_i.~.-
                                                                                                                           •




19.              State every reason for your refusal to pay the $20,000.00 that you offered (in addition to
                 $5,000.00 in previmisly pa\d personal injury protection benefits an_d $30,000.00
                 previously paid by Patricia Tompkins' insurance carrier) through Fredrick M. Aimour,
                 ynur Claims Service Representative, onApri128, 2014.

                 ANSWER:

                 The Defendant objects to this request as it is overly broad, vague and unduly
                 burdensome.

                 The Defendant fiuiher objects to this request on the grounds it violates the attorney client,
                 attorney work product, witness statement and paiiy cormnunication privileges.

                 The Defendant further objects to this interrogatory as it calls for a nairative response, and
                 is an attempt by Plaintiff to improperly limit Defendant's testi:tnony.

                 The Defendant further objects to this interrogatory to the extent that it is outside the
                 scope of discovery as it concerns matters that ai·e not relevant to the subject matter of this
                 present lawsuit, it seeks information which is not relevant to the claims asserted by the
                 Plaintiff, and is not rerumnably calculated to lead to the discovery of admissible evidence
                 pursuant to the Texas Rules of Civil Procedure.

                 The Defendant further object' to this request to the extent that the documents called for
                 therein is not relevant to any issue in this cause. The Plalntiffhas yet to obtain judgment
                 establislring the liability and undetinmired/unhisured status of the other
                 motorist. Brainard v. TI·inity Universal Insurance Company, 216 S.W.3d.809 (Tex.
                 2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
                 S. W.3d 652, 653-54 (Tex. 2000).

                 Defendant objects as Plaintiffs are not entitled to discovery of privileged information
                 regarding bad-faith claims so long as 1he insurance company's liability under the
                 underlying liability claim remains undetermined. See Maryland Ant Gen. Ins. Co. :v.
                 Blackmon, 639 S.W.2d455, 457-58 (Tex. 1982).

20.              If you contend that Plaintiff is obligated to provide you with a release in exchange for the
                 p~yment of benefits afforded by the uninsured/nnderinsured motorist coverage contllined
                 in the policy at issue herein, identify all policy provisions and other documents on which
                 you base such contention.

                 ANSWElli

                 The Defondimt objects to this request as it is overly broad, vague and unduly
                 burdensome.




                                                                                                                        MR 54
l~,_~ ••                                                                            :··,···
'~~i-·;
           ...
·~x:?':;'t.;                                                                       '.~;e.




                 Defendant objects to this Request to the extent that this requests the Defendant to render a
                 legal opinion or legal conclusion,

                 The Defendant further objects to fuis interrogatory as it calls for a narrative response, and
                 is an attempt by Plaintiff to improperly limit Defendant's testimony.

                 The Defettdant further objects to this interrogatory to the extent that it is outside the
                 scope of discovery as it concerns matters that are not relevant to the subject matter of this
                 present lawsuit, it seeks infomllltion which is not relevant to the claims asserted by the
                 Plaintiff, and is not reasonably calculated to lead to tbe discovery of admissible evidence
                 pursuant to the Texas Rules of Civil Procedure.

                 The Defendant further objects to this request to the extent that the documents called for
                 therein is not relevant to any issuein this cause. The Plaintiff has yet to obtain judgment
                 establishing tile liability and underinsured/uninsured status of the other
                 motorist. Bratnardv. Trinity Universallnsurance Company,216 S.W.3d.809 (Tex.
                 2006) See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
                 S.W.3d 652, 653-54 (Tex. 2000).

                 Defendant objects as Plaintiffs are not entitled to discovery of privileged information
                 regarding bad-faith claims so long as the insurance company's liability under the
                 underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.
                 Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982).




                                                                                                                 MR 55
                       ··I   I                  ....-.-.--~-
                                      --·-·-~:;-·-                  -      ------------
                                                            ... ... -.-...-.
                                                                                                   ,'..
                                                                                                   j_


                                                                                                   I'

                                  CAUSE NO. 201-1365-A

THOMAS JACKSON,
Plaintiff
                                            §
                                            §
                                                             IN nm DISTRICT COURT OF
                                                                                                   I
                                            §
vs.                                         §                188thJUDICIAL DISTRICT
                                            §
AAA TEXAS COUNTY MUTUAL                     §
INSURANCE COMPANY                           §
Defendant.                                  §                GREGG COUNTY, TEXAS


      OE:FENDANT'S OBJECTIONS and RESPONSES TO PLAINTIFF THOMAS
               JACKSON'S FIRST REQUEST FOR ADMISSIONS

TO:    Thomas Jackson, Plaintiff, by and through his attorneys of record, M. Raymond Hatcher
      ·and Alan J. Robertson, Sloan, Bagley, Hatcher & Perry Law Firm, 101 East Whaley
       Street, Longview, Texas 75601.

       COMES NOW AAA Texas County Mutual Insurance Company, Defendants in the above

nwnbered and styled cause, and serves its Objections and Responses to Plaintiffs First Request

for Admissions, in accordance with the Texas Rules of Civil Procedure.


                                                     Respectfully submitted,




                                                     wl~71:'
                                                     CARLOS A BALIDO
                                                     State Bar No. 01631230
                                                     Meadow Park Tower, Suite 1500
                                                     10440 North Central Expressway,
                                                     Dallas, TX 75231
                                                     Tel: 214-749-4805
                                                     Fax: 214-760-1670
                                                     carlos.balidp(il)wbclaw.tlnn.com

                                                     ATTORNEY FOR DEFENDANT




                                                                                                 MR 56
------,         I   I                           -----~-------·-,
                                                                                                                    '   I




                                                                                                               .'




                                          CEltfIFICATE OF SERVICE

                  This is to certify that a true and correct copy of the foregoing document has been mailed,
          faxed, or hand delivered to all parties of record, in compliance witli Rule 2la of the Texas Rules
          of Civil Procedure, on December   '2,3     2014.

          Vi11 First Cutss U.S. Med[
          M. Raymond Hatcher
          Alan J. Robertson
          Sloan, Bagley, Hatcher & Perry Law Firm
          101 East Whaley Street
          Longview, Texas 7560!




                                                                                                                               I

                                                                                                                               I
                                                                                                                               I1·
                                                                                                                               I

                                                                                                                               !
                                                                                                                               I
                                                                                                                               i.




                                                                                                                            MR 57
                      ..   '                  -,-              ......... -.·!
                           i




The Defendant objects generally to tl1c Definitions and Instructions set forth at ilie beginning of
this written discovery request for the reason that they are overly broad, unduly burdensome, and
harassing. Further, the Defendant objects to these Definitions and Instructions for the reason that
fuere is no provision in the Texas Rules of Civil Procedure requiring a party to abide by such
definitions and instructions. The Defendant also objects to the Definitions and Instructions to the
extent that iliey seek to impose a greater burden and obligation on ilie Defendant tl1an is
permissible under the Texas Rules of Civil Procl'dure.

Witl10ut waiving or limiting the foregoing general objection, the Defendant specifically objects
to Plaintiff's discovery as follows:

                    OBJECTJONS AND RESPONSES TO PLAINTIFF'S
                         FIRST REQUEST FORADMISSJONS

1,     Plaintiff sued Defendant AAA Texas County Mutual Insurance Company in its proper
       name.

       RESPONSE:

       Admit.

2.     On June 12, 2013, Plaintiff was h1Sured by a personal automobile policy bearing policy
       number TPAO 16443 3 53 issued by Defendllllt.

        RESPONSE:

       Admit

       Prior to June 12, 2013, Defendant entexed into a contractual agreement with Plaintiff to
                                                                                                        I1-

       provide uninsured/underinsured motoiist cove111ge to Plai11tiff in the event that he was
       involved in a motor vehicle collision caused by m uninsured/underinsured motodst.
                                                                                                         1
        RESPONSE:
                                                                                                         I
        Admit.                                                                                           !.
4.     Your policy number TPAO 16443353 prnvided uninsured/underinsured motorist coverage
       to PlaintiffonJ1ine 12.. 2013.

        RESPONSE:

        Admit




                                                                                                      MR 58
                                                              --------------···-,




               ·.,_..J   : ••.




5.    Your policy numberTPA016443353 was in force and effect on June 12, 2013.

      RESPONSE:

      Admit.

6.    All premiums due on your policy number TPA016443353 on or before June 12, 2013,
      had been timely paid by or on behalf of Plaintiff.

      RESPONSE:

      Admit.

7.    One June 12, 2013, a collision occurred in Gregg County, Texas, between a motor
      vehicle operated by Plaintiff and a motor vehicle operated by Patricia Tompldns.

      RESPONSE:

      Admit

8.    Plaintiff timely notified Defendant of a potential uninsured/underinsured motorist claim
      following the June 12, 2013, motor vehicle collision that is the basis of this suit.

      RESl'ONSE:

      Admit

9.    Defendant has not issued a reservation of rights letter to Plai11tiff pertaining to the
      uninsured/underill$ured motorist claim Plaintiff made following the June 12, 2013, motor
      vehicle collision that is the basis of this suit.

      RESPONSE:

      Admit

1O.   Based upon your investigation(s) of the June 12, 2013, motor vehicle collision that is the
      basis ofthls suit, you dete1mined that Patricia Tompkins was negligent.

      RESPONSE:

      Deny.




                                                                                                   MR 59
      I     I                                                                                             I   '




          • "i                                                             '.i               . i




11.         If, based upon your investigatiou(s) of June 12, 2013, motor vehicle collision that is the
            basis of this suit, you determined that Patricia Tompkins was negligent, you also
            determined 1hat Patricia Tompkins' negligence proximately caused the collision in
            question.

            RESPONSE:

            Deny.

12.         If, based upon your invcstigation(s) of June 12, 2013, motor vehicle collision that is the
            basis of this·suit, you determined that Patricia Tompkins' negligence proximately caused
            the collision in question, you also determined that Patricia Tompkins' negligence and the
                                                                                                                     ''
            resulting collision caused at least some injury to Plaintiff.                                            !
                                                                                                                     j.

            RESPONSE:                                                                                                     .i
                                                                                                                          il
             Deny.                                                                                                        H
                                                                                                                          i
13.         Based     upon    your   investigation(s)   and/or     evaluation(s)   of     Plaintiffs
            uninsured/underinsured motorist claim, Defendant has detennined that Patricia Tompkins
            was an underinsured motorist, as th.at term is defined in your policy number
            TPA0\6443353.

            RESPONSE:

             Deny.

14.          Based     upon    your      investigation(s) and/or     evaluation(s)     of Plaintiff's
             uninsured/underinsured motorist claim, you have determined that Plaintiff has sustained
             damage in· excess of the sum of (1) Plaintiff's $5,000.00 personal injury pwtection
             coverage, and (2) Patricia Tompkins' $30,000.00 limit of liability insurance.

             RESPONSE:

             Defendant objects to this request as it is a two pait question and vague.

             Witho1Jt waiving this objection, deny.

15.          On April 28, 2014, you offered $20,000.00 from Plaintiff's uninsured/underinsured
             motorist coverage in addition to $5,000.00 in personal injuiy protection coverage that you
             previonsly paid to Plaintiff and $30,000.00 previously paid by Ms. Tompkins' liability
             insurance carrier.

             RESPONSE:

             Admit,




                                                                                                                  MR 60
                                                   -,               I   '




                                     .... -.   I




                 .I




16.   Based     upon     your    investigation(s)   and/or    evaluation(s)   of Plaintiff's
      uninsmed/underinsured motorist claim, you have determined that Plaintiff has sustained
      at least $55,000.00 in damages as a result of the June 12, 2013, motor vehicle collision
      between Plaintiff and Patricia Tompkins.

      RESPONSE:

      Deny.

17.   You have failed to pay any portion of 1:b.e $20,000.00 that you offered Plaintiff on April
      28, 2014.

      RESPONSE;

      Defendant objects to this request in that it is vague aud argumentative.

      Without waiving this objection and subject thereto, Defendant admits that it has not paid
      the $20,000.00 offered to Plaintiff on April 28, 2014.

18.   Plail1tiff has complied with all conditions precedent to recovering from the
      uninsured/underinsured motorist coverage contained in your policy number
      TPAOl 6443353.                 .

      RESPONSE:                                                                                       I
                                                                                                      I
                                                                                                      i
      Defendant objects to this request as it is vague,

      Without waiving this objection and subject thereto, Defendant cannot admit or deny,
      Reasonable inquiry has been made for Ibis infunnation and the infomiation known or
      easily obtainable is insufficient to enable Defendant to admit or deny.

                                                                                                      :


                                                                                                      I
                                                                                                      !
                                                                                                      !·




                                                                                                   MR 61
                                    I   I                                                                 ---,


                                                                                           Electronically Submitted
                                                                                             1/19/2015 9:04:44 AM
                                                                                        Gregg County District Clerk
                                                                                        By: Debbie Kinney ,deputy



                                    CAUSE NO. 2014-1365-A

THOMAS JACKSON                                §          IN THE DISTRICT COURT OF
                                              §
VS.                                           §          GREGG COUNTY, TEXAS
                                              §
AAA TEXAS COUNTY MUTUAL                       §
INSURANCE COMPANY                             §          188TH JUDICIAL DISTRICT

                   DEFENDANT'S FIRST AMENDED ORIGINAL ANSWER


       COMES NOW, AAA Texas County Mutual Insurance Company, Defendant in the above

styled and numbered cause and files its First Amended Original Answer to the Plaintiff's Second

Amended Original Petition and in support thereof would respectfully represent and show unto

the Court the following:

                                                   I.

       Defendant AAA Texas County Mutual Insurance Company denies each and every, all

and singular, the material allegations contained in Plaintiff's Original Petition and demands strict

proof thereof.
                                                  II.

       Defendant AAA Texas County Mutual Insurance Company demands a trial by jury.

                                                  III.

       Further answering, if the same be necessary, Defendant contends that the allegations

made the basis of the claims and alleged damages, if any, of Plaintiff were caused by acts andfor

omissions of persons or third parties over whom this Defendant has no control, and for whom

this Defendant is not in law responsible. Such acts and/or omissions were the sole proximate

cause or a proximate cause or a producing cause of the occurrence in question and the alleged

damages, if any.




DEFENDANT'S FIRST AMENDED ANSWER -                                                             Page 1
#1333890(77325



                                                                                                           MR 62
                                                IV.

        While denying that Plaintiff sustained injuries and suffered the incapacities as alleged,

Defendant would show that the injuries sustained by the Plaintiff prior and/or subsequent to the

date of the accident made the basis of this suit, contribnted in some part to any current incapacity

of the Plaintiff.

                                                V.

        Further answering, Defendant specially denies that Plaintiff sustained the injuries alleged

and would further show that the injuries, if any, sustained by him were temporary and partial in

nature and are no longer existing.

                                                VI.

        Fmiher answering, Defendant would show that the Plaintiffs recovery of medical or

healthcare expenses is limited to the amow1t actually paid or incurred by or on behalf of the

Plaintiff as mandated by the Texas Civil Practice & Remedies Code§ 41.0105.

                                               VIL

        Pleading further, Defendant would show that he is entitled to a credit or set-off for any

money collected by Plaintiff from any to1ifeasor or Co-Defendant as settlement or judgment

based on the incident at issue.

                                               VIII.

        Defendant would further show by way of affirmative defense that Defendant is entitled to

a credit/offset for PIP benefits previously paid to the Plaintiff in tl1e amount of $5,000.00.

Defendant pleads entitlement to this credit/offset pursuant to Texas law, and in particular, the

Texas Insurance Code.




DEFENDANT'S FIRST AMENDED ANSWER-                                                            Page 2
#1333890/77325


                                                                                                       MR 63
-~-------------,




                                                      IX.

          Further, Defendant would show that Plaintiff has failed to mitigate his damages as a

reasonable prudent person would have done under the same or similar circumstances and that

such failure to mitigate damages is the sole cause, or the proximate cause, of Plaintiffs damages,

if any.


          WHEREFORE, PREMISES CONSIDERED, Defendant AAA Texas County Mutual

Insurance Company prays that upon final trial and hearing hereof, that no recovery be had from

Defendant AAA Texas County Mutual Insurance Company, but that Defendant AAA Texas

County Mutual Insurance Company go hence without delay and recover its costs, and for such

other and further relief to which Defendant AAA Texas County Mutual Insnrance Company may

be justly entitled and will ever pray.



                                         Respectfully submitted,

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




                                         CARLOS A. BALIDO
                                         State Bar No. 01631230
                                         Meadow Pru·k Tower, Suite I 500
                                         10440 North Central Expressway
                                         Dallas, TX 75231
                                         Tel: 214-749-4805
                                         Fax: 214-760-1670
                                         cado s. l)_!JlJs!~lli;jl'.YbcJ!!Yltin.n.ffim




 DEFENDANT'S FIRST AMENDED ANSWER -                                                         Page 3
 #1333890/77325



                                                                                                     MR 64
------------,                                                  -----------------,




                                         CERTIFICATE OF SERVICE

               This is to certify that a true and correct copy of the foregoing document has been mailed,
       faxed, or hand delivered to all parties ofrecord, in compliance with Rule 2la of the Texas Rules
       of Civil Procedure, on January 19, 2015.

       M. Raymond Hatcher
       Alan J. Robertson
       Sloan, Bagley, Hatcher & Perry law Firm
       P. 0. Drawer 2909
       I 01 East Whaley Street
       Longview, TX 75606
       tel: 903-757-7000


                                                                                       __
       fax: 903-757-7574
                   ____ ________ _
       rhatcher@.sloanfirm.com
       -··-·-~·~"---··-·-'·"''"_"'   ,



                                                                          ........_,....

                                             CARLOS A. BALJDO




        DEFENDANT'S FIRST AMENDED ANSWER -                                                          Page 4
        #1333890/77325


                                                                                                             MR 65
                                                                                          Electronically Submitted
                                                                                            1/19/2015 9:04:44 AM
                                                                                       Gregg County District Clerk
                                                                                       By: Debbie Kinney ,deputy



                                     CAUSE NO. 2014-1365-A

THOMAS JACKSON                                §        IN THE DISTRICT COURT OF
                                              §
vs.                                           §        GREGG COUNTY, TEXAS
                                              §
AAA TEXAS COUNTY MUTUAL                       §
                                                             TH
INSURANCE COMPANY                             §        188        JUDICIAL DISTRICT

      DEFENDANT AAA TEXAS COUNTY MUTUAL INSURANCE COMP ANY'S
          MOTION FOR SEVERANCE AND/OR PLEA IN ABATEMENT

TO THE HONORABLE JUDGE OF SAID COURT:

       COMES NOW, AAA Texas County Mutual Insurance Company (hereinafter referred to

as "AAA,") and      in the above-entitled and numbered cause, and files this its Motion for

Severance and/or Plea In Abatement and in support of the same would respectfully represent and

show unto the Court the following:

                                                  I.
       AAA would show that this lawsuit arises out of an automobile accident that occurred on

or about June 12, 2013.     Plaintiff alleges that he was turning left when tortfeasor, Patricia

Tompkins, struck Plaintiffs vehicle. At the time, AAA provided automobile liability insurance

to the Plaintiff, which contained underinsured motorist protection coverage ("UIM"). Plaintiff

made a claim under the policy provided by Defendant AAA.

      ·The Plaintiff has filed suit for breach of contract against Defendant seeking to recover the

UIM benefits (hereinafter the "contract claims").        However, this action is not limited to

contractual claims for U!M benefits. Rather, Plaintiff also asserted extra-contractual allegations

against Defendant for alleged breach of its duty of good faith and fair dealing arising from the

insurance contract between the parties (hereinafter the "extra-contractual claims").


DEFENDANT AAA'S MOTION FOR SEVERANCE AND/OR PLEA IN ABATEMENT
#1334490177325                                                                              PAGEi




                                                                                                          MR 66
-----~-------~-,------,
                                                      '   I




                                                              II.

                To the extent that Plaintiff has alleged extra-contractual claims, AAA requests that the

         Court sever all extra-contractual claims from the underlying contract claim in this case. The

         Plaintiff should first have to prove his damages before AAA be made to defend the extra

         contractual claims. Numerous Texas courts have concluded it is necessary to sever and abate

         extra contractual claims from the threshold contract claim because of the cruel and unacceptable

         dilemma the Defendant would necessarily face if it is forced to try both the fundamental issue of

         liability in conjunction with claims addressing its evaluation of liability. In Re Trinity Universal

         Insurance Company, No. 64 S.W.3d 463 (Tex. App.-Amarillo 2001, orig. proceeding); State

         Farm Mut. Automobile Ins. Co. v. Wilborn, 835 S.W.2d 260, 262 (Tex. App.-Houston [141h

         Dist.] 1992, orig. proceeding); Balderama v. Western Casualty Life Ins. Co., 794 S.W.2d 84, 89

         (Tex. App.-San Antonio 1990), rev'd on other grounds, 825 S.W.2d 432 (Tex. 1991);

         Northwestern Nat1 Llyds Ins. Co. v. Caldwell, 862 S.W.2d 44, 46-47 (Tex. App.-Houston [14th

         Dist.] 1993, orig. proceeding); FA. Richard & Assoc. v. Millard, 856 S.W.2d 765, 767 (Tex.

         App.-Houston [1" Dist.] 1993, orig. proceeding); Millard, 847 S.W.2d at 668; Mid-Century

         Ins. Co. v. Lerner, 901 S.W.2d 749, 752-53 (Tex. App.-Houston [14th Dist.] 1995, orig.

         proceeding).

                The compelling rationale of these cases is that privileged material (such as counsel's

         evaluation and insurance investigative claim files) and settlement negotiations are inadmissible

         on the contract claims with regard to liability and damages. Nevertheless, this evidence would

         be admissible regarding a tort or other extra-contractual claims to show whether the insurer acted

         properly or not.   The paradox created by the failure to sever is readily apparent.        Without

         severance of the extra-contractual claims, a defendant must choose between protecting its
         DEFENDANT AAA'S MOTION FOR SEVERANCE AND/OR PLEA IN ABATEMENT
         #1334490/77325                                                                              PAGE 2




                                                                                                                MR 67
                                   -----~-----------,
      I   I




evidentiary privileges (e.g., attorney-client communications and offers of settlement) and forego

demonstrating that its actions did not violate the statute or waive its privileges and in_ject into the

case issues of settlement, consultation with counsel, and investigative procedures and findings in

an effort to demonstrate it complied with the applicable statute. Faced with these conflicting

options, the Wilborn comt concluded:

                     [T]he resolution of this conflict leaves but one decision to protect
                     all interests involved and that is to order severance of the two
                     causes of action and to abate the proceedings on tl1e bad faith claim
                     until final disposition of the uninsured motorist claim.

Id. at 262. See also, Mi/lard, supra, 847 S.W.2d at 668.

              The case law is clear that tl1e extra-contractual claims are to be severed from contract

claims because to try the two distinct types of claims together is (1) highly prejudicial to the

insurer because of the inherent problems which inevitably arise when trying an

underinsured/uninsured motorist claim jointly with extra-contractual claims requiring the

injection of insurance, settlement negotiations, settlement offers, and of privileged matters (such

as advice of counsel and investigative claim files) and (2) potentially a waste of limited judicial

and party resources because the extra-contractual claims are necessarily dependent on tl1e

resolution of tl1e underinsured/Ullinsured motorist claim and, therefore, can be rendered moot by

the first proceeding. Id.

              The Amarillo Court of Appeals ordered severance of an underinsured contract claim from

the plaintiffs' extra-contractual claims. See In Re Trinity Universal Insurance Company at 467.

There, the Amarillo Court of Appeals laid a framework for determining that the plaintiffs' claim

for       damages      under   Article   21.55   should   be   severed where      (1)   the claim   for

underinsured/uninsured motorist benefits is contractual and the claim for penalty under Article

DEFENDANT AAA'S MOTION FOR SEVERANCE AND/OR PLEA IN ABATEMENT
#1334490/77325                                                                                 PAGE3




                                                                                                          MR 68
-----~~----------,




21.55 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 Article 21.55 claim is not so

interwoven with the tort action and contract action that they involve the same facts and issues.

Id.

       Defendant would show that In Re Trinity Universal Insurance Company is similar to the

case at bar. Here, the (1) Plaintiff's claim for UIM benefits is contractual and the

extra-contractual claims involve more than one cause of action, (2) the severed claims would be

the proper subject of a lawsuit if independently asserted, and (3) the extra-contractual claims are

not so interwoven with the contract action that they involve the same facts and issues: the

unresolved questions of liability and medically necessary treatment are factually and legally

distinct from the questions of alleged breach of duty of good faith and fair dealing. Once a trier

of fact has determined that Plaintiff's alleged injuries and treatment were the proximate result of

said accident; then and only then, is it appropriate to consider whether the Defendant violated

their duty of good faith and fair dealing in the handling of the UIM claim.

                                                III.

       Defendant AAA would further request that Plaintiffs extra-contractual claims be abated

until Plaintiffs contract claim has been finally resolved. United States Fire Insurance Co. v.

Millard, 847 S.W.2d 688 (Tex. App.-Houston (1st Dist.] 1993, no writ); Texas Farmers

Insurance Company v. Stem, 927 S.W.2d 77 (Tex. App.-Waco 1996); Mid-Century Insurance

Company o,[Texas v. Lerner, 901 S.W.2d 749 (Tex. App.-Houston [14th Dist.] 1995). The

issue of discovery regarding the extra-contractual claims necessitates the abatement of these

claims. It is well settled under Texas law that where litigation is initiated regarding an insurance

claim on the contract and for extra-contractual claims, evidence regarding the extra-contractual
DEFENDANT AAA'S MOTION FOR SEVERANCE AND/OR PLEA IN ABATEMENT
#1334490177325                                                                              PAGE 4




                                                                                                       MR 69
-~~-------~~-,




       claims remains privileged and nndiscoverable during the pendency of the contract claim. In

       Maryland American General Insurance Co. v. Blackmon, 639 S.W.2d 455 (Tex. 1982), the court

       found that the plaintiff was not entitled to discovery of otherwise privileged information

       regarding bad-faith claims as long as the liability on the contract action remained undetermined

       as it would be prejudicial to the insurance company's right to the defense of the contract. In

       holding that the insurance company could assert its privileges on the contract claim, the Supreme

       Court pointed out the following:

              In order to recover under its contract cause of action, the [Plaintiff Bank] must
              prove its president was dishonest and that such dishonesty caused losses within
              the terms of the bond. [The insurance company] . . is entitled to defend itself by
              requiring the [Bank] ... prove its cause of action and assert whatever defenses it
              may have. The protection of the pa1ty's right to defend a suit brought against him
              is the essence of the proviso in Rule l 86a [now Rule 166b, the attorney-client,
              work product, and investigative privileges], and the privilege exists so long as that
              right exists. Regardless of the other reasons which might justify the use of this
              information, it would be impossible to limit the prejudicial effect of disclosure on
              [the insurance company's] . . . right to defend the contract cause of action.
              Moreover, if a plaintiff attempting to prove the validity of a claim against an
              insurer could obtain the insurer's investigative files merely by alleging the insurer
              acted in bad faith, all insurance claims would contain such allegations. We hold
              that [the insurance company] ... is entitled to assert the privilege so long as its
              liability on the bond remains nndetermined.

       Blackmon, 639 S.W.2d at 457-58.

              In further support of said motion, the San Antonio Court of Appeals in Jn Re United Fire

       Lloyds held extra-contractual claims should be severed and abated from the contract action. In

       that case, in his amended petition, the Plaintiff filed contractual claims for UIM benefits as well

       as extra-contractual claims against the insurer. The Court found severance.and abatement of the

       extra-contrnctual claims, and not bifurcation, is the proper procedure in a UIM claim. The Court

       found when an action is brought against tl1e insurer for both breach of contract and

       extra-contractual claims the extra-contractual claims should be severed and abated until such
       DEFENDANT AAA'S MOTION FOR SEVERANCE AND/OR PLEA IN ABATEMENT
       #1334490177345                                                                                 PAGE 5




                                                                                                               MR 70
                                  -------~----~--·-,
     I   '




time as the Plaintiff has obtained a judgment as to liability against the tortfeasor and established

Plaintiffs underinsured status. As the Court states, 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 UIM

benefits. To require such would not do justice, avoid prejudice, and further convenience." In re

United Fire Lloyds, 327 S.W. 3d 250, 256 (Tex. App.-San Antonio, 2010, no pet.) (attached as

Exhibit "A).

             Defendant should not be required to undergo the expense of discovery with respect to

extra-contractual claims, when there exists a substantial possibility that damages are not awarded

in the contract claim, and, thus, will not even trigger the duty to pay under the UIM provisions of

the policy. Such a finding on the contract claim would preclude any necessity to discovery or to

try the extra-contractual claims.

             WHEREFORE, PREMISES CONSIDERED, Defendant AAA prays that the Court sever

Plaintiff's extra-contractual claims against Defendant pursuant to Rule 41 and/or Rule 174(b) of

the Texas Rules of Civil Procedure. Defendant AAA further moves for an abatement of such

actions until such time that the action against Defendant for UIM benefits is resolved by

judgment or settlement. Defendant AAA further requests such other relief to which it may show

itself entitled.




DEFENDANT AAA'S MOTION FOR SEVERANCE AND/OR PLEA JN ABATEMENT
#1334490/77325                                                                                PAGE6




                                                                                                       MR 71
                                                         I   !




                                             Respectfully submitted,

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




                                             CARLOS A. BALIDO
                                             State Bar No. 01631230
                                             Meadow Park Tower, Suite 1500
                                             10440 North Central Expressway
                                             Dallas, Texas 75231
                                             214-749-4805
                                             214-760-1670 - Fax
                                             E-mail: balidovtax@wbclawfirm.com

                                             ATTORNEY FOR DEFENDANT
                                             AAA Texas County Mutual Insurance Company


                               CERTIFICATE OF CONFERENCE

       On January 16, 2015, counsel for movant and counsel for respondent have personally
conducted a conference at which there was a substantive discussion of every item presented to
the court in this motion, and despite best efforts, the counsel have not been able to resolve the
matters presented. Therefore, a hearing is requested in this matter.

       Certified to the   lq      day of   ..::rCf)~\(l."\   , 2015.


                                            ~l~
                                             Cll'.Balido


                               CERTIFICATE OF SERVICE

       This is to certify that on the 19'h day of January, 2015, a true and correct copy of the
foregoing document was forwarded to all counsel of record.




                                             Carlos A. Balido


DEFENDANT AAA'S MOTION FOR SEVERANCE AND/OR PLEA IN ABATEMENT
#1334490/77325                                                                           PAGE7




                                                                                                    MR 72
-----------,




               Exhibit ''A''




                               MR 73
In re United Fire Lloyds, 327 S.W.3d 250 (2010)




                    327 S.W.3d 250
                Court of Appeals of Texas,
                      San Antonio.
                                                                 121   APJ)eal and Error
             In re UNITED FIRE LLOYDS.                                 ~..Natureand T::xtent of[)Jscretionary Po\ver
                                                                       !Vlandamus
        No. 04-10-00094-CV. I July 14, 2010.                           ·~*-""Matters   of discretion

                                                                       A trial court has no discretion in detennining
                                                                       what the Jaw is or applying the law to the facts,
Synopsis
                                                                       and a clear failure by the trial court to analyze or
Background: E1nployee who had been involved in motor
                                                                       apply the law con-ectly will constitute an abuse
vehicle accident with other 1notorist filed suit against
                                                                       of discretion for mandatnus purposes.
en1ployer's automobile insurer, asserting claim for
l111derinsured motorist (UIM) benefits, as well as bad faith
clain1s, Insurer filed motion to sever and abate UIM claim
from bad faith claims. Employee filed motion for a
bifurcated trial. The 49th Judicial District Court, Webb
County, Jc)se A. Lopez, J. 1 denied insurer 1 s n1otion and
granted e1nployee 1 s tnotion. Insurer filed petition for writ   1>1   M·anda1nus
of 1nandamus.                                                          {;:.""MHtter$ of<liscretion

                                                                       To satisfy the clear abuse of discretion standard
                                                                       for issuance of a writ of mandamus~ the relater
Holdings: The Court of Appeals, H. ebecca Si111n1ons, J.,
                                                                       must show that the trial court could reasonably
held that:
                                                                       have reached only one decision.
llJ trial court was required to sever and abate UIM claim
from bad faith claims, and

Pl insurer had no adequate rernedy by appeal with respect
to trial coures abuse of discretion in denying its motion to
sever and abate.                                                 /<I   Mandan1us
                                                                       ~""'Ren1edy     al" La\v

Writ conditionally granted.                                            Appellate court will not issue a writ of
                                                                       1nandamus if there is a clear and adequate
                                                                       remedy at law.

 West Headnotes (!4)


 ILi    JVlandtllTIUS
        {«"'·Ren1edy al La\v                                     [5)
                                                                       l\ifandatnus
         Mandan1us                                                     ~=Nature  and existence of rights to be protected
         ,·;>=>Nature of nets to be C()rn1nanded                       or enforced
         Mandamus will !ssue only to correct a clear                   Since 1nandamus is intended as an extraordinary
         abuse of discretion for which the relater has no              remedy, such interference is justified only when
         adequate remedy at law.                                       parties stand to Jose their substantial rights.
         l Cases that cite this hen<lnote




                                                                                                                              MR 74
--------~---------··-,




    in re United Fire Lloyds, 327 S.W.3d 250 (2010)



                                                                         action, (2) the severed claim is one that would
                                                                         be the proper subject of a lawsuit if
                                                                         independently asse11ed, and (3) the severed
                                                                         claim is not so interwoven with the re1naining
           Action                                                        action that they involve the same facts and
           ,;·"'"Severance of actions                                    issues.
           Action
           ·)"•l''irnure and subjeer n1auer ofacti.ons in
           general

           Trial court was required to sever and abate claim
           for underinsoi·ed motorist (UJM) benefits
                                                                  1•1    Action
           brought by employee involved in motor vehicle
           accident with other motorist against employer's               ~1 ·Severance-    of actions
           auto1nobUe insurer from e1nployee~s bad faith
           c!ai1ns against insurer) as insurer was under no              The controlling reasons for a severance of
           contractual duty to pay UIM benefits until                    c!aiins are to do justice 1 avoid prejudice, and
           employee established the liability and                        further convenience.
           underinsured status of the other Jnotorist, andi
                                                                         ! Cases that cite rhls headnote
           thus, 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 UIM benefits,     IJOJ   lnsurnncc
           in that to require such would not do justice,
                                                                         ~?Prerequisites      for Clain1 of Breach or Bad
           avoid prejudice, and further convenience.
                                                                         Fnith
           4 ('.<:1'3es that cite this headnote                          JnsurHtJCe
                                                                         iFBad t:1ith in general
                                                                         1




                                                                         Contractual clain1s based on an insurance policy
                                                                         and bad faith claims against an insurer are by
    171    Action                                                        their nature independent) but, in most
           <i}'"Severanc:e of actions                                    circumstances, an insured may not prevail on a
           Trial                                                         bad faitl1 claim without first showing that the
           tJ. .. Se-parate Trials i11 Saine Cause                       insurer breached the contract.

                                                                         l   C~ases   that cite this headnote
           Severance and bifurcation are distinct trial
           procedures; a "severance" divides the lawsuit
           into two or 1nore separate and independent
           causes, but the "bifurcation)1 of a trial leaves the
           lawsuit intact but enables the court to hear and       pr1
                                                                         Insurance
           determine one or tnore issues without trying all
                                                                         {e•Necessily of Ton Liability
           controverted issues at the same thne.

            2 Case-:; Jinn cire this headnote                            In a case in which underinsured motorist (UlM)
                                                                         benefits are sought from an automobile insurer,
                                                                         the U!M insurer is obligated to pay damages
                                                                         which the insured is legally entitled to recover
                                                                         fro1n the underinsured n1otorist. V .A.T .S.
            Action                                                       Insurance Code, art. 5.06···1(5) (Repealed).
            ·t>-~Severf!nce   of actions
                                                                         2 Cases t·l1nt cite- this hendnote
            Claims are properly severable if: (I) the
            controversy involves more than one cause of




                                                                                                                            MR 75
                  ._   _.
in re United Fire Lloyds, 327 S.W.3d 250 (2010)
..... ,.. __ ,, ___________ _____ ... ______________._________
                                                  ~---·------  ..   -------------~----------"-·--·-·-··'--·--··




                                                                                             substantial rights by being required to prepare
1111      lnsurance                                                                          for claims that might be rendered 111oot and
          (;..•,;Necessity of1"ort liability                                                 might have not even yet accrued.
          fnsnra1H':C!
          <-P.·,Underlnsuranct'!: exhausled cover(lge                                         I Cases that cite th.is headnote
          fnsnrance
          ·C.,.-ii~I)crcrinination   of"for1· Liabilitv: Acrjons and
          Seulen1cnts                                 ~-

          An underinsured 1notorist (UIM) insurer is                                *252 Original Mandamus Proceeding. 1
          under no contractual duty to pay benefits until
          the insured obtains a judgrnent establishing the                          Attorneys and Law Firms
          liability and underinsured status of the other
                                                                                    Clay E. Coalson, Donnell, Abernethy & Kieschnick,
          1notorist; neither requesting UIM. benefits nor
                                                                                    Corpus Christi. TX, Jose L. Cia1nez, Donnell, Abernethy
          filing suit against the insurer triggers a
                                                                                    & Kieschnick, Edinburg, TX, for Appellant
          contractual duty to pay.
                                                                                    Ronald A. Ramos, Nadine Nieto, Law Offices of Ronald
          J   Cuses that cite this headnote
                                                                                    A. Ramos, P.C., Ada1n Poncio, Poncio Law Offices, P.C.,
                                                                                    San Antonio, TXi Bryan W. Jones, Texas Mutual
                                                                                    Insurance Company, Austin, TX, for Appellee.

IUJ                                                                                 Sitting: KAREN ANGELINI, Justice, REBECCA
          Insurance                                                                 SIMMONS, Justice, MARIA LYN 13ARNARD, Justice.
          '-f:l'l~Uninsured or lJnderfnsurcd Motorist
          ('overage                                                                 Opinion
          fnsurnnt'e
          i'i""'-'Necessity of Tort Lhibility
          1


          JnsurHfic(~
          > ('.lainls rind Sett lenient Practices
              0
                                                                                                              OPINION

          For an insured to recover for underinsured
          motorist (UIM) benefits under an automobile                               Opinion by: REBECCA SIMMONS, Justice.
          insurance policy, he 1nust prove not only that the
          purported underinsured 1notorist negligently                              On February 8, 2010, relator United Fire Lloyds filed a
          caused the accident that resulted in the covered                          petition for writ of1nanda1nus, seeking to compel the trial
          damages, but also that all applicable policy                              court to (I) vacate the October 7, 2009 Order Grantino
          provisions have been satisfied.                                           Plaintiffs Motion for a Bifurcated Trial, (2) vacate th:
                                                                                    October 13, 2009 01~der Denying Defendant United Fire
                                                                                    Lloyd's Motion to Sever and Abate Plaintiff's
                                                                                    Extra-Contractual Claims, and (3) grant United Fire's
                                                                                    Motion to Sever and Abate Plaintiffs Extra-Contractual
                                                                                    Claims, We conditionally grant mandamus relief,

il·i)
          !Vlandaxnus
          •0?=~i\.1odif1cntion   or vacation ofjudgn1ent or order

          E1nployerjs automobile insurer, against which                                                   BACKGROUND
          employee had brought claim for underinsured
                                                                                    The underlying suit arose from a motor vehicle accident
          motorist (UIM} benefits as well as bad faith
                                                                                    involving Juan Garcia and Ramon Valverde. Garcia filed
          claims, had no adequate remedy by appeal with
                                                                                    suit against United Fire for underinsured motorist
          respect to trial court's abuse of discretion in
                                                                                    ("UIM") benefits under his employer's insurance policy.
          denying its motion to sever and abate UIM
                                                                                    The original petition only alleged a claim for UIM
          claim ti·om bad faith claims, and, thus)
                                                                                    benefits, but subsequently filed petitions added
          1nandan1us relief was appropriate, as if
                                                                                    extra-contractual (bad faith) claims. The Fomth *253
          n1andamus was not granted, insurer stood to lose




                                                                                                                                               MR 76
                                                                                                             !   I




In re United Fire Lloyds, 327 S.W.3d 250 (2010)



Amended Petition' alleged the following bad faith claims                  (orig. proceeding). HA trial court has no 'discretion' in
in violation of the Texas Insurance Code: (1) failing to                  determining what the law is or applying the law to the
co1nn1ence an investigation of Garcia's claim and failing                 facts," and "a clear failure by the trial court to analyze or
to request fro1n the c!aiinant all ite1ns. statements, and                apply the law correctly will constitute an abuse· of
forn1s in order to properly evaluate Garcia)s claim in                    discretion" *254 Walker, 827 S.W.2d at 840. "To satisfy
violation of section 542.055; and (2) engaging in unfair                  the clear abuse of discretion standard, the relater must
settle1nent practices in violation of section 54 I .060:l                 show 'that the trial court could reasonably have reached
                                                                          only one decision.' '1 liberty N{;t'l Fire ins. Co. v. Akin,
United Fire contends it inade a settle1nent offer in the                  927 S.W.2cl 627, 630 (Tex.1996) (quoting Walker, 827
a111ount of $I 00,000 during 1nediation. I~owever, no                     S.W.2d at 840). However, this court will not issue a writ
settletnent agree1nent was ever reached. Later, United Fire               of 1nandamus if there is a clear and adequate rernedy at
filed a n1otion to sever and abate Garcia's UIM claitn                    law. See J:Valker1 827 S.W.2d at 840. Since 1nandamus is
fron1 the bad faith clain1s. As the basis for the 1notion 1               intended as an extraordinary re1nedy 1 such interference is
United Fire asserted a severance was necessary because                    justified only when parties stand to lose their substantial
the introduction of the settle1nent ofter1 the policy limits,              rights. Id ar 842.
and the facts concerning United Fire 1 s handling of the
claim, as they relate to the bad faith claims, would
prejudice United Fire in the trial of the UlM claim, and
would confuse, complicate, and considerably lengthen the                  lf. Severance or Bifurcation?
trial. Garcia then filed a 1notion for a bifurcated trial as an           171 1s1 191 Severance and bifurcation are distinct trial
alternative to the severance and abate1nent. As authority                 procedures. Hall v. City 1!f' Austin, 450 S.W.2d 836,
for his 1notion1 Garcia relied on this cou1t 1 s opinion in Jn            837--38 (Tex.1970). A severance divides the lawsuit into
re Trovelers Lfr~1.·dv qj' Te.Y. Int C. .o., in which we                  two or more separate and independent causes. Id.
concluded the trial court did not abuse its discretion in                 However, tbe bifurcation of a trial leaves the lawsuit
bifurcating over severing the contractual claims from the                 intact but enables the cou1t to hear and deterrnine one or
bad faith claims. See 273 S.W.3d 368. 373-75                              1nore issues without trying all· controverted issues at the
(Tcx ..A.pp.-San Antonio 2008, orig. proceeding). Garcia                  same time. fd. Claims are properly severable if (I) the
contended a severance would be judicially wasteful,                       controversy involves 1nore than one cause of action, (2)
wou!d unduly prejudice hhn, and the disposition of the                    the severed claim is one that would be the proper subject
trial on the UlM claim would not eliminate the trial on the               of a lawsuit if independently asserted, and (3) the severed
bad faith clain1s. In response to the rnotion for a                       claim is not so interwoven with the remaining action that
bifurcated h·ial, United Fire asserted that a UIM claim is                they involve the satne facts and issues. 6..,u.ar. red. .\[n1.
differe11t fron1 other types of contractual insurance clai1ns             Bank v. 1-Jorseshoe ()perating (~o., 793 S.W.2d 652, 658
because there is no contractual duty to pay benefits until                (Tex. 1990). "The controlling reasons for a severance are
the insured obtains a judg1nent establishing liability and                to do justice, avoid prejudice, and further convenience."
the underinsured status of the other 1notorist. Therefore 1               Id
United Fire claimed no bad faith claiins had yet accrued,
                                                                          1101 Contractual clailns based on an insurance policy and
and the trial on the tJJM claim would control the outcome
of the bad faith clai1ns. After a hearing, the trial couit                bad faith claims are by their natme independent. Akin,
granted Garcia's motion for a bifurcated trial and denied                 927 S.W.2d at 629. 1'But, in 111ost circumstances, an
United Pire Lloyd's 1notion to sever and abate. This                      insured 1nay not prevail on a bad faith claim without first
petition for writ of 1nandamus ensued.                                    showing that the insurer breached the contract." Id. In
                                                                          Akin, the Texas Supreine Court concluded that a
                                                                          severance 1nay be necessa1y in some bad faith cases. Id. at
                                                                          630. For instance, when evidence is admissible only with
                                                                          regard to the bad faith claim and would prejudice the
                               ANALYSIS                                   insurer to such an extent that a fair trial on the contract
                                                                          claim would become unlikely. Id.

I. Standard
Ill               of Review                                               Following Akin, numerous intermediate cou1ts of appeals
    12 1 lll 141 1-1 161
             .  Mandamus will issue only to correct a
                 .:i                                                      have considered whether it is an abuse of discretion for a
clear abuse of discretion for which the relator has no                    trial court to refuse to order a severance of contractual
adequate remedy at law. {n re Prudential In'"!'. Co. q/'Arn.,             claims from bad faith claims when a settle1nent offer has
148 S.W.3d 124. 135 (J'ex.2004) (orig. proceeding);                       been made. &e, e.g., Tn re Miller, 202 S.W.3d 922,
Walker v. Packer, 827 S.W.2d 833, 839·40 (fex.1992)
                                   _______________9_2_5_-~.~Cfe~~.P.::~~~~~!.:.p~.~95?.:~ 01·ig.                     proceeding (tnan~.
·f,.\-si\~~·:1'/~Jext   © '.t::013 Thomson Reuters. l\Jo clain1 to original U,S. Gover11n1eni: VVorks.                               4


                                                                                                                                         MR 77
                                                                                                                             -------------------,--------,




In re U ni:e~         ~1~€)-~".Y_d_•,_327 S.W.3d_:250_(2_0_10)____               - - - - - - - - - - - - · · - - ·-·-···-········ ....- ..·-·-----·-·-···-···-·-·-··--··


denied] ); In re Al!sliite Tex.                 Lloyds, No.                                                 determined.
 14 05--00762-·CY, 2005 WL 2277134, at * 4                                                     See Brainard, 216 S.W.3d at 818 (citing Flenson v. S.
(Te,,App.-Houston [14th Dist] Sept. 2, 2005, orig,                                             F'ann B11reau C'as. fns. (~o., 17 S. W.3d 652. 654
proceeding) (1ne1n. op.); /11 re Allstate !ndem. C'o.,                                         (Tex.2000)).'1 Therefore, "the UIM insurer is under no
05--03-01496-··CV, 2003 WL 22456345, at *1                                                     contractual duty to pay benefits until the instn·ed obtains a
(Tex.App.-Dallas Oct. 30, 2003, orig. proceeding) (mem.                                        judgment establishing the liability and underinsured status
op.); [11 re Jrinir,v Universal Im. Co., 64 S.W.3d 463, 468                                    of the other motorist.... Neither requesting UIM benefits
(Tex.A_pp.-An1arillo 2001: orig. proceeding [1nnnd.                                            nor filing suit against the insurer triggers a contractual
de11it'.d] ). Eventually. parties began seeking bifurcation of                                 duty to pay." Id
the contractual clai1ns fro1n the bad faith clain1s as an
alternative to severance. See Jn re Travelers, 273 S.W.3d                                       13
                                                                                               1 1  Therefore1 in order for Garcia to recover under his
t)t 373~ 0 75: Jn re Allstate Tex. lioyd':i. 202 S.W.3d 89.5,                                  VIM claim, he 1nust prove not only that the purported
901) (Tex.App.-Corpus Christi 2006, orig. proceeding                                           underinsured 1notorist negligently caused the accident that
[mane!. denied] ) (concluding plaintiffs failed to meet their                                  resulted in the covered damages, but also that all
burden that they would be prejudiced by the bifurcation of                                     applicable policy provisions have been satisfied. See
contractual claitns under a homeowner's insurance policy                                       dllstatit !ns. (~o. v. BonJ1er, 5 l S.W'.Jd 289, 291-·92
and bad faith claiins instead of severing and abating the                                      ('fex.2001); ~Velli.<>ch v. l.lniled /:/ervs. Auro. As.s'n. 75
c!ain1s). But we are only aware of a few cases in the                                          S.\.V,3d 53. 57 CI'ex.App.~Snn Anlonio 2002, peL denied)
context of a U ! M claiin that have considered whether                                         (holding that because an insurer is not obligated to pay
severance and abate1nent is necessary over bifurcation.                                        U!M benefits until the insured becomes legally entitled to
/)ee In re ,..fl/stale Prop. and ("as. fns. C'o., No,                                          those benefits, an insurer has the right to withhold
02--07--0014 l··CV. 2007 WL            I 574964, nt *I                                         payment of UIM benefits until the insured's legal
('rex.App.-Fort V·/orth Muy 30, 2007) 01ig. proceeding)                                        entitlement is established). As a result, United Fire
(mcm. op.) (holding it was an abuse of discretion to                                           contends the trial court abused its discretion in bifurcating
bifurcate *255 instead of severing and abating the UIM                                         rather than severing and abating because it is disputed
claim from the bad faith claims); In re Allstate County                                        whether there is a covered loss. United Fire argues it
M111. Ins. Co .. 209 S.W.3d 742, 746-47 (Tcx.App.-Tyler                                        should not be required to prepare for a trial on bad faith
2006. orig. proceeding) (concluding lt was an abuse of                                         claims when it has no contractual duty to pay the UIM
discretion to bifurcate instead of severing the UIM .clai111                                   claim until Garcia obtains a judgment establishing the
fi·om the bad faith clain1s). However, these cases fail to                                     underinsured motodst's liability and underinsured status.
discuss the necessity of severance and abatement rather
than bifurcation in the context ofa U!M claim.                                                 Garcia responds tliat it is not disputed that he has a
                                                                                               covered loss and the bad faith claims will not be mooted
1111 11'1 Jn a UIM case, "[t]he UJM insurer is obligated to                                    by a trial on the UIM claim; therefore, this court should
pay damages which the insured is 'legally entitled to                                          hold the trial court did not abuse its discretion in
recover' from the underinsured 1notorist." Brainard v.                                                                                                   5
                                                                                               bifurcating the trial rather than severing and abating:
Trinitv llniversa! Ins. c~o., 216 $.\V.3d 809, 818                                             Garcia relies *256 primarily on fn re Travelers to support
(Tcx.l006J (citing TEX. INS.CODE art. 5.06-1(5)). In                                           his argument. See 273 S.W.Jd at 373-·~75. However, we do
Brainard, the Texas Supreme Court expounded on the                                             not find In f'(! Travelers controlling because it was not a
uniqueness of a UIM case as follows:                                                           UIM case. Id In re Jf•r,n,elers involved a suit filed by
                                                                                               homeowners against their homeowners' insurance carrier
                    The UJM contract is unique                                                 for breach of contract and bad faith for mishandling their
                    because) according to its tenns,                                           claim. Id. at 370. This court concluded that "[b]ecause the
                    benefits are conditioned upon the                                          trial of the [plaintiffs'] extra,contractual claims Is
                    insured 1 s legal entitlement to                                           unaffected by the outcoine of their contractual clahn 1 a
                    receive da111ages fro1n a third party.                                     single bifurcated trial preceded by unified discovery and
                    Unlike lnany first-pa1ty insurance                                         pretrial proceedings proinotes judicial economy better
                    contracts, in which the policy alone                                       than severance and abate1nent." Id at 374. As a result,
                    dictates coverage, UJM insurance                                           this court determined the trial court did not abuse its
                    uti Hzes tort law to determine                                             discretion in bifurcating the case because 11 [u]nder these
                    coverage.      Consequently,       the                                     circumstances, the primary justification for abatement of
                    insurer's contractual obligation to                                        the extra-contractual claims-avoiding the effo1t and
                    pay benefits does not arise until                                          expense of conducting discovery on claims that rnay be
                    liability    and     damages       are                                     rendered moot in a previous trial-is non-existent because

     ·; ..;;-.:f'.Je.-.:t   ·'.\~)   2e:·r:;} i'"non1sorr   Reuter.:~.   No ciain1 to original U.S. Governnrent VVorl<s                                              5



                                                                                                                                                                         MR 78
                                                                                                                                                         c   '




in re United Fire Lloyds, 327 S.W.3d 250 (2010)



the disposition of the contractual claim will not inoot the                   required to prepare for clai1ns that 1nay be rendered moot
extra-contractual claims." Id                                                 and may have not even yet accrued. See [J.S. F'ire Ins. c:o.
                                                                              v. Millard. 847 S.W.2d 668, 675 (Tex.App.-HouBton [Isl
This court's determination that bifurcation is an                             Dist.] 1993, orig. proceeding); Jn re 7"/·inifJ' Llniversal ins.
appropriate alternative to severance is not applicable to                     Co., 64 S. W.3d 463. 468 (Tex.App.-Amarillo 2001, orig.
the present case because a UIM claim that involves a                          proceeding [mand. denied]).
dispute as to whether there is a covered loss is
distinguishable frorn a ho1neowners' insurance claiin                         Finally, we address Garcia's contention that United Fire
where the existence of a covered Joss is not disputed.                        waived any co1nplaint as to the wording or form of the
LJnlike the situation presented in ln re Travelers, United                    order. Typically in a mandamus situation, a party
Fire disputes whether Garcia has a covered loss. As a                         preserves its co1nplaint by requesting an order and the
result, a determination of Garcia's U!M claim 1nay negate                     trial coutt either grants or *257 does not grant the request
his bad faith claiJns. See Progressive. C'ounly .~tfut. Ins. C'o.             to enter an order, See Axelson, Inc. v. lv!c:J/hany, 798
v. /Joy,(, 177 S.WJd 919, 922 (Tex.2005) (recognizing                         S.W.2d 550, 556 (Tex.1990). lt is unclear what Garcia
bGd faith c!ai1ns are generally negated by a lack of                          contends United Fire waived since United Fire's
coverage under the insurance policy); /lkin. 927 S. \¥.2d at                  complaint is that the trial court improperly granted a
6J()n..J 1 (recognizing that judgn1ent for the insurer on the                 bifurcated trial over severing and abating the UIM claim
coverage clahn prohibits recovery pre1nised only on the                       from the bad faith claims. United Fire does not appear to
bad faith denial of a clai1n, but does not necessarily bar all                complain about the fonn or contents of the bifurcation
claims for bad faith); In re Miller, 202 S.W.3d al 925                        order. Therefore, we do not find lJnited Fire waived any
(concluding that bad faith claims are negated by a lack of                    complaints.
coverage under the insurance policy).

As a result of rhe foregolng, we are constrained by the
clear holding in Brainard. and hold that United Fire is
under no contractual duty to pay UIM benefits until                                                   CONCLUSION
Garcta establishes the liability and underinsured status of
the other inotorist. See J?rainard. 216 S. W.3d at 818.                       We conclude the trial court abused its discretion in
Therefore, United Fire should not be required to put forth
                                                                              granting Juan Garcia's 1notion for a bifurcated trial and
the effort and expense of conducting discovery, preparing                     denying United Fire's motion to sever and abate.
for a trial, and conducting voir dire on bad faith claims                     Accordingly,      we    conditionally     grant    the    writ   of
that could be rendered moot by the portion of the trial
                                                                              mandamus. The trial cou1i is ordered to (1) vacate the
                                                                              October 7, 2009 Order Granting Plaintiffs Motion for a
relating to UJM benefits. To require such would not do
justice) avoid prejudice, and further convenience. See                        Bifurcated Trial, (2) vacate the October 13, 2009 Order
Ciuor. f-~ed. Sov. Bank. 793 S.\V.2cl at 658. Under these                     Denying Defendant United Fire Lloyd's Motion to Sever
circutnstances, we conclude the trial court abused its                        and Abate Plaintiffs Extra-Contractual Claims, and (3)
discretion in bifurcating the case instead of severing and                    grant United Fire's Motion to Sever and Abate Plaintiffs
abating the UlM claim from the bad faith claims.                              Extra-Contractual Claims. The writ will issue only if the
                                                                              trial court fails to comply within fourteen days.
114 1 We futther conclude United Fire does not have an
adequate remedy by appeal because if rnanda1nus is not
granted it stands to lose substantial rights by being

    Footnotes
         This proceeding arises out of Cause No. 2008-CVE00052 l~D I, Juan Garcia, Plaintiff. Texas Mutuai Jm•tirance Co., As Subrogee
         of.Juan. Garcia, !nJ.ervenor v. United Fire Lloyds, pendiiJg in the 49th Judicial District Court, Webb County, Texas, the Honorable
         .lose A. Lopez. presiding.

         The live petition is the Fifth A1nended Petition. However, it was filed after the trial court granted the motion to bifurcate, In
         considering whether the trial court abused its discretion in denying United Fire's motion to sever and abate, we limit our review to
         tbe record that was before the trial court at the thne the 1'decision was made.' 1 hr re Bristnl-·kfycrs Squibb Co .. 975 S.\~'.2d 601,
         605 !Tex. 1998).

3        Specifically, Garcia contends United Fire engaged in unfair settle1nent practices by: (I) failing to atte1npt in good faith to effectuate
         a pro1npt, fair, and equitable set1len1ent of Ga!'cia~s claim after liability had beco1ne reasonably clear, (2) tefusing, failing or
         unreasonably delaying a settlement offer on the basis tbat other coverage tnay be available, and (3) delaying 01· refusing settleinent

                                                                                                                                               6



                                                                                                                                                     MR 79
In re United Fire Lloyds, 327 S.W.3d 250 (2010)



                 of a c!aiin solely because there is other insurance of a different kind available to satisfy pait of the loss.

                 We acknowledge Brainard involved a different issue than the case at hand: a detennination as to when presentinent of a contract
                 claim was 1nade in order to delennine whether a party was entitled to attorney's fees in accordance with Chapter 38 of the Texas
                 Civil Practice and Remedies Code. Id.

                 We note that in Garcia's Sur-Reply he provides, "The truth of the n'!aUer is the primary clain1s will be decided and then, if
                 wan-anted, exlra~contracial [sicJ clain1s will be determined in lhc bifurcated portion of the trial." However, later Garcia again
                 contends that the extra~contractual clain1s will not be rendered moot by judg1nent in the first phase of the trial due to bifurcation.




    t!nd of Docurnent                                                           © 2013 Thomson Reuters. No claim to original U.S. Government Works.




..................   ~------------------·----------


'"J.~~~:tl.0'1vl\lexf     © 2013 T11omson Reuters. No clain1 to original U.S. Goverr1rnent \f',/orks·,                                             7


                                                                                                                                                       MR 80
                                                  ,-   '




                                                                                           Electronically Submitted
                                                                                             1/19/2015 9:04:44 AM
                                                                                        Gregg County District Clerk
                                                                                        By: Debbie Kinney ,deputy



                                    CAUSE NO. 2014-1365-A

THOMAS JACKSON                                §            IN THE DISTRICT COURT OF
                                              §
VS.                                           §            GREGG COUNTY, TEXAS
                                              §
AAA TEXAS COUNTY MUTUAL                       §
INSURANCE COMPANY                             §            188TH JUDICIAL DISTRICT

         DEFENDANT AAA COUNTY MUTIAL INSURANCE COMPANY'S
      SPECIAL EXCEPTIONS TO PLAINTIFF'S SECOND AMENDED PETITION

TO THE HONORABLE JUDGE OF SAID COURT:

       COMES NOW Defendant, AAA Texas County Mutual Insurance Company, (hereinafter

referred to as "Defendant" or "AAA"), and files this its Special Exceptions to Plaintiff's Second

Amended Petition and in support thereof would respectfuliy represent and show unto the Court

the following:


             I.   SPECIAL EXCEPTION TO DECLARATORY JUDGMENT

       Defendant would show that Plaintiff has alleged a claim against Defendant which may

not be alleged pursuant to the facts of the case at bar. Defendant specially excepts to Paragraph J,

because Plaintiff alleges claims against Defendant pursuant to the Uniform Declaratory Act

found in Chapter 37 of the Texas Civil Practice and Remedies Code.

       This case arises out of a claim for underinsured motorist coverage. On or about June 12,

2013, Plaintiff was involved in a motor vehicle accident. At the time of the accident, Plaintiff

was covered by a liability insurance policy with Defendant AAA. Plaintiff alleges that a vehicle

driven by Patricia Tompkins collided with the Plaintiff's vehicle. Ms. Tompkins' liability

insurance company paid its policy limits for $30,000. At the time, AAA provided automobile

liability insurance to the Plaintiff, which contained underinsured motorist protection coverage

("UIM").

DEFENDANT AAA' SPECIAL EXCEPTIONS TO PLAINTIFF'S
SECOND AMENDED ORIGINAL PETITION -                                                           Pagel
#133892/77325




                                                                                                            MR 81
-----·-,                      '   I




                  Plaintiff is not seeking to obtain a declaration of rights, status, or other legal relations

           relating to the construction or validity of a written contract as required by the Uniform

           Declaratory Judgment Act, but is instead attempting to circumvent the Texas Supreme Court's

           ruling in Brainard v. Trinity Universal Ins. Co., 216 S.W.3d 809 (Tex. 2006) by having the

           Court declare that Plaintiff's injuries and damages fall within the coverage of her insurance

           policy, and that, in turn, Plaintiff is entitled to recover her insurance proceeds. Such allegations

           and claims are invalid and fail to state a claim under Texas law.

                  The Texas Supreme Court has held that a UM/UIM carrier is under no contractual duty to

           pay benefits until the insured obtains a judgment establishing the liability and underinsured

           status of the other motorist. Brainard, 216 S.W.3d at 818. Moreover, the Court held that there

           can be no award of attorney's fees to the claimant without such a finding of liability and

           damages. Id.

                  The Uniform Declaratory Judgment Act is found           111   Chapter 37 of the Texas Civil

           Practice & Remedies Code. The stated purpose of the Act is to "settle and to afford relief from

           uncertainty and insecurity with respect to rights, status, and other legal relations." TEX. CIV.

           PRAC. & REM. CODE§ 37.002. A person interested under a written contract, i.e. an insurance

           contract, whose rights, status, or other legal relations are affected by the contract, may have

           determined any question of construction or validity arising under the instrument and obtain a
           declaration of rights, status, or other legal relations thereunder. TEX. CIV. PRAC. & REM. CODE§

           37.004(a) (emphasis added).

                  The Uniform Declaratory Judgment Act operates to provide an individual whose rights

           and legal relations are at issue in a contractual dispute as a vehicle by which he can solicit the
           Court to resolve questions of construction or validity under the contract Nat 'I County Mut. Fire

           Ins. Co. v. Johnson, 829 S.W.2d 322, 324 (Tex.App.-Austin 1992, writ granted). However, the

           Uniform Declaratory Judgment Act does not empower the courts to render advisory opinions.

           DEFENDANT AAA' SPECIAL EXCEPTIONS TO PLAINTIFF'S
           SECOND AMENDED ORIGINAL PETITION -                                                          Page2
           #133892/77325




                                                                                                                  MR 82
Foust v. Ranger Ins. Co., 975 S.W.2d 329, 331-32       (Tex.App.~San   Antonio 1998, writ denied).
"Any judgment attempting to declare the liability of an insurance company relating to damages

that might be assessed in an underlying case is advisory and beyond power and jurisdiction of the

trial court under the Unifom1 Declaratory Judgment Act." Id

       In the case at bar, Plaintiff has asserted a typical UJM claim against Defendant, but has

couched the claim as a declaratory judgment action pursuant to the Uniform Declaratory

Judgment Act contained within Chapter 37 of the Texas Civil Practice & Remedies Code.
Specifically, Plaintiff has requested that the Court declare that Plaintiffs injuries and damages

fall within the coverage of her insurance policy, and that, in turn, Plaintiff is entitled to recover

her insurance proceeds.
       Plaintiff is simply trying to circumvent the Texas Supreme Court's ruling in Brainard,

which requires her to obtain an adjudication of liability and damages before Defendant is
obligated to pay benefits and/or attorney' s fees, by asking the Court to issue an impermissible

advisory opinion. Asking the Court for such declarations in a UIM case such as this does not

serve the purpose of the Uniform Declaratory Judgment Act to determine the construction or

validity of the insurance contract at issue and goes against established Texas Supreme Court

precedent requiring the Plaintiff to obtain an adjudication ofliability and damages before a UIM

carrier (such as Defendant) is obligated to pay benefits and/or attorney's fees. Until such time as

the Plaintiff has established that he is legally entitled to recover UIM benefits, AAA has no

contractual obligation under their UIM motorist policy to pay the benefits. Hence, the
declaratory judgment brought by Plaintiff is not ripe for judicial consideration.

       Accordingly, Plaintiff has made allegations and claims in this case which are invalid and

fail to state a claim under Texas law. Defendant specially excepts to Plaintiff's claims in
Paragraph J for these reasons. Defendant requests that the Court sustain its Special Exception



DEFENDANT AAA' SPECIAL EXCEPTIONS TO PLAINTIFF'S
SECOND AMENDED ORIGINAL PETITION -                                                           Page3
#133892/77325




                                                                                                        MR 83
---------------··-,                                        I   I




      and order Plaintiff to replead and cure the pleading defects. If the Plaintiff does not cure this

      defect, Defendant requests that the Court strike the Plaintiff's claims.

                       II.   SPECIAL EXCEPTION AS TO ATTORNEY'S FEES
              Defendant specially excepts to Paragraphs J(l 7)         and Prayer for Relief (d) of the
      Plaintiffs Second Amended Original Petition as the Supreme Court of Texas has held that

      attorneys' fees are not recoverable in conjunction with an underinsured/uninsured motorist claim.

      Brainardv. Trinity Universal Ins. Co., 216 S.W.3d. 809 (Tex. 2006).

              In Brainard, the plaintiff contended that the appellate court erred in reversing the trial
      court's ruling which held that she was entitled to recover attorneys' fees because her insurer

      failed to timely pay Wlderinsured motorists benefits after she presented her claim. 216 S.W.3d at
      817; see TEX. Crv. PRAC. & REM. CODE§ 38.002. To be entitled to attorneys' fees, the claimant

      must: l) be represented by an attorney; 2) present the claim to the opposing party or to a duly

      authorized agent of the opposing party; and 3) payment for the just amount owed must not have
                                                      th
      been tendered before the expiration of the 30 day after the claim is presented. Id. at § 38.002.
      While the Court recognized that a UIM insurer is obligated to pay damages which the insured is

      "legally entitled to recover" from the underinsured motorist, under Chapter 38, the contractual

      duty to pay does not arise until a judgment is obtained establishing the liability and

      underinsured/uninsured status of the other motorist. Id. (citing Henson v. S. Farm Bureau Cas.

      Ins. Co., 17 S.W.3d 652, 653-54 (Tex. 2000)). Therefore, the Court determined that a claim for

      benefits is not presented until after the jndgment is signed, and, consequently, upheld the

      appellate court's determination that the plaintiff was not entitled to recover attorney's fees.

             In the present case, because the insurance contract does not require AAA to pay UIM

      benefits before the tortfeasor is found negligent and the UIM status is determined, Plaintiff has
      no contract claim prior to this Court issuing its judgment. Therefore, Plaintiff is not entitled to

      recover attorneys' fees. For these reasons, Defendant requests that the Court sustain its Special

      DEFENDANT AAA' SPECIAL EXCEPTIONS TO PLAINTIFF'S
      SECOND AMENDED ORIGINAL PETITION -                                                            Page 4
      #133892/77325




                                                                                                             MR 84
--·-,               I   '




        Exceptions and order Plaintiff to rep lead and cure the pleading defects. If the Plaintiff does not

        cure this defect, Defendant requests that the Court strike the Plaintiffs claims.

               WHEREFORE, PREMISES CONSIDERED, Defendant AAA prays that the Court

        grant this its Special Exceptions and for such other and further relief to which Defendant AAA

        may be justly entitled and will ever pray.

                                                      Respectfully submitted,

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




                                                      CARLOS A. BALIDO
                                                      State Bar No. 01631230
                                                      Meadow Park Tower, Suite 1500
                                                      10440 North Central Expressway
                                                      Dallas, Texas 75231
                                                      214-749-4805
                                                      214-760-1670- Fax
                                                      E-mail: carlos.balido(iilwbclawi!rm.com



                                         CERTIFICATE OF CONFERENCE

                On January 16, 2015, counsel for movant and counsel for respondent have personally
        conducted a conference at which there was a substantive discussion of every item presented to
        the court in this motion, and despite best efforts, the counsel have not been able to resolve the
        matters presented. Therefore, a hearing is requested in this matter.

               Certified to the 19'11 day of January, 2015.


                                                      ~
                                                      carrOs
                                                             ; t
                                                              A. Balido




        DEFENDANT AAA' SPECIAL EXCEPTIONS TO PLAINTIFF'S
        SECOND AMENDED ORIGINAL PETITION -                                                         Page 5
        #133892/77325




                                                                                                              MR 85
      -~---~------~--,




                                 CERTIFICATE OF SERVICE

       This is to certify that on this the 19'h day of January, 2015, a true and correct copy of the
above document has been forwarded to all counsel of record.



                                               ~-1~
                                              c~A.BALIDO




DEFENDANT AAA' SPECIAL EXCEPTIONS TO PLAINTIFF'S
SECOND AMENDED ORIGINAL PETITION -                                                          Page6
# 133892/77325




                                                                                                       MR 86
- - - - - - - - - - - - ,-,                                                  --------------,-,



                                                                                                       Electronically Submitted
                                                                                                         8/10/2015 9:37:16AM
                                                                                                    Gregg County District Clerk
                                                                                                        By: Erica Gant ,deputy


                                                CAUSE NO. 2014 -1365-A

             THOMAS JACKSON                                   §      IN THE DISTRICT COURT
                                                              §
             vs.                                              §      OF GREGG COUNTY, TEXAS
                                                              §
             AAA TEXAS COUNTY MUTUAL                          §
             INSURANCE COMPANY                                §      188'h JUDICIAL DISTRICT

                                 PLAINTIFF'S MOTION TO COMPEL DISCOVERY

             TO THE HONORABLE COURT:

                    Plaintiff Thomas Jackson files this, his Motion to Compel Discovery. Plaintiff requests

             that this Court sign an order compelling Defendant AAA Texas County Mutual Insurance

             Company ("AAA") to fully answer/respond to Plaintiff Thomas Jackson's First Request for

             Admissions, First Set of Interrogatories, and First Request for Production. In support thereof,

             Plaintiff respectfully shows the Court the following:

                                                     I. INTRODUCTION

                    This lawsuit results from a motor vehicle collision occurring on or about June 12, 2013,

             in Gregg County, Texas. The collision occurred at the intersection of Pliler Precise Road and

             Judson Road in Longview, Texas. At that time, Plaintiff Thomas Jackson was the driver of a

             vehicle lawfully and safely traveling westbound on Pliler Precise Road. Jackson stopped in

             obedience to a traffic light at the intersection of Judson Road and Pliler Precise Road. After

             stopping, and in obedience to the traffic light, Jackson continued traveling westbound into the

             intersection of Pliler Precise Road and Judson Road.           Patricia Tompkins was traveling

             northbound on Judson Road when, with complete disregard for the safety and welfare of other

             persons or property, she disregarded the red light, struck the driver's side of Jackson's vehicle,

             and caused the collision made the basis of this lawsuit.


             Plaintiffs Motion to Compel Discovery                                                        Page I




                                                                                                                     MR 87
        When the collision occurred, AAA covered Jackson with a personal automobile insurance

policy. AAA's policy included underinsured motorist coverage. Jackson's injuries and damages

exhausted the limits of Ms. Tompkins's liability insurance coverage, so Jackson now seeks to

enforce against AAA the insurance policy for which both he and AAA bargained and for which

Jackson paid premiums.

        AAA has already determined that Mr. Jackson was entitled at least $20,000.00 of its

$100,000.00 underinsured motorist coverage, in addition to the $5,000.00 personal injury

protection coverage it previously paid and the $30,000.00 of liability insurance paid by Ms.

Tompkins's insurer. Despite Jackson's demand that AAA pay this amount (and the parties

continue to litigate the amount(s) about which they disagree), AAA refuses to pay the

$20,000.00 which it has already determined Mr. Jackson is entitled to and which AAA offered.

        Discovery in this matter is governed by a Level 3 discovery control plan. This matter has

been set for trial on February 8, 2016.

            II. DEFICIENCIES IN DEFENDANT'S DISCOVERY RESPONSES

        No party to this lawsuit disputes that the events listed below occurred on the

corresponding dates listed:

    •   October 17, 2014: Jackson's counsel serves AAA with Jackson's First Request for
        Admissions, First Request for Production, and First Set of interrogatories.

   •    November 17, 2014: AAA's counsel requests (and Jackson's counsel grants) the first of
        four extensions of AAA's deadline to respond to Jackson's written discovery. The
        parties agree to extend AAA's deadline to November 25, 2014. Exhibit A.

   •    November 25, 2014: AAA's counsel obtains its second extension. The deadline to
        object/respond/answer is now December 10, 2014. Exhibit B.

   •    December 10, 2014: AAA's counsel obtains its third extension.           The deadline to
        object/respond/answer is now December 17, 2014. Exhibit C.


Plaintiffs Motion to Compel Discovery                                                     Page2




                                                                                                    MR 88
    •   December 17, 2014: AAA's counsel obtains its fourth and final extension. The deadline
        to object/respond/answer is now December 24, 2014. Exhibit D.

    •   December 23, 2014: AAA serves its Objections and Responses to Plaintiffs First
        Request for Admission, its Objections and Responses to Plaintiffs First Request for
        Production, and its Objections and Answers to Plaintiffs First Set ofinterrogatories.

Although AAA purports to answer Jackson's discovery, it wholly failed to provide meaningful

responses/answers, despite having over two months and four extensions of its deadline to

respond. For example:

    •   In response to Jackson's 34 requests for production, AAA objected to all but 7 requests
        and produced:

           o The Texas Peace Officer's Crash Report regarding the subject collision
             (previously produced by Jackson in discovery); and

           o Black-and-white photocopies of two digital photographs, presumably of the car
             driven by Jackson when the subject collision occurred.

   •    In response to Jackson's 20 interrogatories, AAA objected to all but 1 interrogatory and
        provided substantive answers subject to its objections to only 6 interrogatories.

   •    AAA objected that Jackson's Request for Admission 14, which states "Based upon your
        investigation(s) and/or evaluation(s) of Plaintiffs uninsured/underinsured motorist claim,
        you have determined that Plaintiff has sustained damage in excess of the sum of(!)
        Plaintiffs $5,000.00 personal injury protection coverage and (2) Patricia Tompkins'
        $30,000.00 limit ofliability insurance," is a two-part question and is vague.

   •    AAA objected that Jackson's Request for Admission 17, which states that, "[AAA has]
        failed to pay any portion of the $20,000.00 that you offered Plaintiff on April 28, 2014,"
        is vague and argumentative.

   •    AAA objected that Jackson's Request for Admission 18, which states that, "Plaintiff has
        complied with all conditions precedent to recovering from the uninsured/underinsured
        motorist coverage contained in your policy number TPA016443353,"is vague. Further,
        AAA responds that, "[w]ithout waiving this objection and subject thereto, Defendant
        cannot admit or deny. Reasonable inquiry has been made for this information and the
        information known or easily obtainable is insufficient to enable Defendant to admit or
        deny."

        Such lackadaisical efforts to respond to written discovery can hardly be considered to be



Plaintiffs Motion to Compel Discovery                                                      Page3




                                                                                                     MR 89
---------~-,




       in the good faith required by Texas Rule of Civil Procedure 193.2(c). See also In re Park Cities

       Bank, 409 S.W.3d 859, 877 (Tex. App.-Tyler 2013, no pet.). Consequently, the Court should

       overrule all of Defendant's objections and compel AAA to provide full and complete

       responses/answers. See TEX. R. Crv. P. 193.2(e) ("An objection... that is obscured by numerous

       uofounded objections ... is waived unless the [C]ourt excuses the waiver for good cause shown.").

                           III. FACTS NOT APPARENT FROM THE RECORD

               Jackson attaches the following exhibits to his Motion for the Court's reference and

       incorporates them herein as though they were set forth verbatim:

              Exhibit A                       November 17, 2014, Rule 11 Agreement extending
                                      AAA's deadline to object/respond/answer Jackson's
                                      written discovery requests until November 25, 2014.

              ExhibitB                        November 25, 2014, Rule 11 Agreement extending
                                      AAA's deadline to object/respond/answer Jackson's
                                      written discovery requests until December 10, 2014.

               Exhibit C                      December 10, 2014, Rule 11 Agreement extending
                                      AAA's deadline to object/respond/answer Jackson's
                                      written discovery requests until December 17, 2014.

              Exhibit D                       December 17, 2014, Rule 11 Agreement extending
                                      AAA's deadline to object/respond/answer Jackson's
                                      written discovery requests until December 24, 2014.

              Exhibit E                     Defendant AAA Texas County Mutual Insurance
                                      Company's Objections and Responses to Plaintiff Thomas
                                      Jackson's First Request for Production

              Exhibit F                     Defendant AAA Texas County Mutual Insurance
                                      Company's Objections and Answers to Plaintiff Thomas
                                      Jackson's First Set oflnterrogatories

              ExhibitG                      Defendant AAA Texas County Mutual Insurance
                                      Company's Objections and Responses to Plaintiff Thomas
                                      Jackson's First Request for Admissions




       Plaintiffs Motion to Compel Discovery                                                     Page4




                                                                                                           MR 90
                                   V. PRAYERFORRELIEF

       PREMISES CONSIDERED, Plaintiff Thomas Jackson requests that the Court hear and

overrule Defendant AAA Texas County Mutual Insurance Company's objections to Jackson's

First Request for Production, First Set of Interrogatories, and First Request for Admissions,

compel AAA to provide full and complete answers/responses to same, and grant all such other

and further relief to which Jackson may show himself justly entitled.

                                             Respectfully submitted,
                                             SLOAN, BAGLEY, HATCHER & PERRY LAW FIRM



                                             Isl Justin A. Smith
                                             GLENN A. PERRY
                                             State Bar No. 15801500
                                             gperry@sloanfirm.com
                                             JUSTIN A. SMITH
                                             State Bar No. 24068415
                                             jsmith@sloanfirm.com
                                             101 East Whaley Street
                                             Longview, Texas 75601
                                             Telephone       903-757-7000
                                             Facsimile       903-757-7574

                                             ATTORNEYS FOR PLAINTIFF


                               CERTIFICATE OF CONFERECE

        I hereby certify that on the 17'" day of July, 2015, a sent a letter to opposing counsel
attaching this motion to compel and seeking to conference in acc.ordancewith the Texas R1J!es of
Civil Procedure. I called opposing counsel on the 30th of July, 2015, t~e 3l'1 ()f July; 2015, and
the 3rd of August, 2015, but have been unable to conference with.opposit1g counselregarding the
discovery disputes herein, necessitating the filing of this motion.


                                                    Isl Justin A. Smith
                                                    JUSTIN A. SMITH




Plaintiffs Motion to Compel Discovery                                                      Page5




                                                                                                     MR 91
                                        -,              I   I




                                 CERTIFICATE OF SERVICE

       I hereby certify that on this the 7th day of August, 2015 a true and correct copy of the
foregoing document was served in accordance with the Texas Rules of Civil Procedure on the
following counsel of record:

      Mr. Carlos A. Balido
      WALTERS, BALIDO & CRAIN, L.L.P.
      10440 North Central Expressway, Suite 1500
      Dallas, Texas 75231

                                                   Isl Justin A: Smith
                                                   GLENN A. PERRY
                                                   JUSTIN A. SMITH




Plaintiffs Motion to Compel Discovery                                                    Page6




                                                                                                  MR 92
----~·-,
                                                                                                                                    C   I


     ·.   ,-------~-----=~-                                                       .•\"i




                                                                                                             Electronically Submitted
                                                                                                               101112015 9:55:19AM
                                                                                                          Gregg County District Clerk
                                                                                                           By: Debbie Kinney ,deputy




                                                       CAUSE NO. 2014-1365-A

           THOMAS JACKSON                                               §                  IN THE DISTRICT COURT
                                                                        §
           v.                                                           §                  GREGG COUNTY, TEXAS
                                                                        §
           AAA TEXAS COUNTY MUTUAL                                      §
           INSURANCE COMP ANY                                           §                  188TH JUDICIAL DISTRICT

                        DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL

           TO THE HONORABLE JUDGE OF SAID COURT:

                      COMES NOW DEFENDANT, AAA Texas County Mutual Insurance Company

           (hereinafter "Defendant") and files this its Response to Plaintiffs Motion to Compel and as

           grounds therefore would respectfully show unto the Court as follows:

                                                               I. Background

                     Defendant would show that tills lawsuit arises out of an incident that occurred on or about

           June 12, 2013 in Longview, Gregg County, Texas. Plaintiff has brought claims of breach of

           contract; breach of good faith and fair dealing; violations of the Texas Insurance Code §541;

           Deceptive Trade Practices Tex. Bus. & Com Code §17.50(a) (4); and a petition for declaratory

           relief against the Defendant. 1 Plaintiff served his initial discovery requests to Defendant,

           including Request for Disclosures, First Requests for Admissions, First Set of Interrogatories,

           and First Request for Production. On Decemher 23, 2014, Defendant served its objections and

           responses to Plaintiff's discovery requests. See Exhibit "A." On January 19, 2015, Defendant

           filed its Motion for Severance and/or Plea in Abatement. See Exhibit "B." On June 24, 2015, the

           parties discussed and confirmed the scheduling of mediation for September 29, 2015. See Exhibit



           1
               See Plaintiff's Second Amended Petition, on file witlt tlte Court herein.

           DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL                                       PAGEl
           #1468054/77325




                                                                                                                            MR 93
             ----~----------··-,




"C." On August 10, 2015, Plaintiff filed his Motion to Compel. See Exhibit "D." Counsel for

defense would show that on July 27, 2015, an email message was sent to counsel for Plaintiff

regarding the Motion to Compel. See Exhibit "E." No further discussions were held regarding

the Motion to Compel or the scheduling of the hearing. It was anticipated that if the case did not

settle at mediation, the pending motions would then brought before the court for consideration. ·

       The parties attended mediation on September 29, 2015. During mediation, counsel for

the Defendant was informed by the mediator that Plaintiffs Motion to Compel was set for a

hearing on October 1, 2015. Counsel for the Defendant explained to Plaintiff's counsel that

defense counsel did not receive notice of the hearing. Defense counsel contacted the court and

received a copy of the notice letter dated September 10, 2015 from Plaintiff's counsel indicating

the letter was e-filed and faxed on the same date. See Exhibit "F." The court also confirmed there

was no indication in the system to reflect that the letter was e-filed to defense counsel. At the

mediation, Plaintiff's counsel produced a copy of the September 10, 2015 letter regarding the

Notice of Hearing. The letter included a fax cover sheet that indicated the fax to defense counsel

was "incomplete," "transaction ok," and "error." See Exhibit "G." Counsel for the defense did

not receive the Notice of Hearing letter until the copy was produced by Plaintiffs counsel at the

mediation on September 29, 2015.

       On September 29, 2015, counsel for defense requested that Plaintiff's counsel reschedule

the Motion to Compel to allow defense counsel adequate time to prepare for the hearing and an

opportunity to confer with the adjuster assigned to the claim. Defense counsel explained to

counsel for Plaintiff that the assigned adjuster had recently been hospitalized for a pulmonary

embolism. He was continuing treatment under a doctors' care, but he was not released to travel



DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL                               PAGE2
#1468054/77325




                                                                                                     MR 94
                                                                      ----------------~-,




               ........ ]~------------~----                                    ••."•'.\"[              --- ...   ,--.,~~




or work. On September 30, 2015, defense counsel sent a letter to Plaintiff's counsel to request a

two-week continuance of the Motion to Compel hearing to permit defense counsel the

opportunity to respond to the Motion to Compel, and to confer with the adjuster regarding any

additional information that had not already been produced that may be relevant to the Plaintiff's

claim, and to confer on the anticipated date of litigation.

        In an attempt to promote judicial economy, counsel for defense contends it would be in

the best interest of the court's time and resources to have the court hear Defendant's Motion for

Severance and/or Plea in Abatement at the time as Plaintiff's Motion to Compel. Plaintiff's

counsel did not agree as indicated by their failure to res-set the hearing or confer with defense

counsel.

                                           II. Argument

       In the Motion to Compel, Plaintiff is attempting to compel the Defendant to produce

documents that are not relevant to Plaintiffs claim for damages. Plaintiff failed to list any

specific complaints or deficiencies, other than to state Defendant's discovery responses "wholly

fuiled to provide meaningful responses/answers." Plaintiff's motion made a production of

providing a timeline of extensions and due dates; however, Plaintiffs Motion to Compel is not

based on the timeliness of Defendant's responses, but only that Plaintiff does not agree with

Defendant's responses.

        The Plaintiff has filed suit for breach of contract against Defendant seeking to recover the

underinsured motorist ("UIM") benefits (hereinafter the "contract claims"). However, this action

is not limited to contractual claims for UIM benefits.        Rather, Plaintiff also asserted extra-

contractual allegations against Defendant for alleged breach of its duty of good faith and fair



DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL                                        PAGlD
#1468054/77325




                                                                                                            MR 95
-·-,



                                                                                                                     I
                                                                                                                     f'
       dealing arising from the insurance contract between the parties (hereinafter the "extra-contractual

       claims").

              To the extent that Plaintiff has alleged extra-contractual claims, Defendant contends the

       proper procedure is for the Court to sever all extra-contractual claims from the underlying

       contract claim in this case, and to deny Plaintiff's discovery requests related to the extra-

       contractual claims. The Plaintiff should first have to prove his damages before Defendant be

       made to defend the extra contractual claims. Numerous Texas courts have concluded it is

       necessary to sever and abate extra contractual claims from the threshold contract claim because

       of the cruel and unacceptable dilemma the Defendant would necessarily face if it is forced to try

       both the fundamental issue of liability in conjunction with claims addressing its evaluation of

       liability. In Re Trinity Universal Insurance Company, No. 64 S.W.3d 463 (Tex. App.-Amarillo

       2001, orig. proceeding); State Farm Mut. Automobile Ins. Co. v. Wilborn, 835 S.W.2d 260, 262

       (Tex. App.-Houston [141h Dist.] 1992, orig. proceeding); Balderama v. Western Casualty Life

       Ins. Co., 794 S.W.2d 84, 89 (Tex. App.-San Antonio 1990), rev'd on other grounds, 825

       S.W.2d 432 (Tex. 1991); Northwestern Natl Llyds Ins. Co. v. Caldwell, 862 S.W.2d 44, 46-47

       (Tex. App.-Houston [141h Dist.] 1993, orig. proceeding); F.A. Richard & Assoc. v. Millard, 856

       S.W.2d 765, 767 (Tex. App.-Houston [1'' Dist.] 1993, orig. proceeding); Millard, 847 S.W.2d

       at 668; Mid-Century Ins. Co. v. Lerner, 901 S.W.2d 749, 752-53 (Tex. App.-Houston [14th

       Dist.] 1995, orig. proceeding).

              The compelling rationale of these cases is that privileged material (such as counsel's

       evaluation and insurance investigative claim files) and settlement negotiations are inadmissible

       on the contract claims with regard to liability and damages. Nevertheless, this evidence would


       DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL                               PAGE4
       #1468054/77325




                                                                                                             MR 96
be admissible regarding a tort or other extra-contractual claims to show whether the insurer acted

properly or not. The paradox created by the failure to sever is readily apparent.            Without

severance of the extra-contractual claims, a defendant must choose between protecting its

evidentiary privileges (e.g., attorney-client communications and offers of settlement) and forego

demonstrating that its actions did not violate the statute or waive its privileges and inject into the

case issues of settlement, consultation with counsel, and investigative procedures and findings in

an effort to demonstrate it complied with the applicable statute. Faced with these conflicting

options, the Wilborn court concluded;

               [T]he resolution of this conflict leaves but one decision to protect
               all interests involved and that is to order severance of the two
               causes of action and to abate the proceedings on the bad faith claim
               until final disposition of the uninsured motorist claim.

Id. at 262. See also, Millard, supra, 847 S.W.2d at 668.

       The case law is clear that the extra-contractual claims are to be severed from contract

claims because to try the two distinct types of claims together is (1) highly prejudicial to the

insurer because of the inherent problems which inevitably arise when trying an

underinsured/uninsured motorist claim jointly with extra-contractual claims requiring the

injection of insurance, settlement negotiations, settlement offers, and of privileged matters (such

as advice of counsel and investigative claim files) and (2) potentially a waste of limited judicial

and party resources because the extra-contractual claims are necessarily dependent on the

resolution of the underinsured/uninsured motorist claim and, therefore, can be rendered moot by

the first proceeding. Id.




DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL                                  PAGES
#1468054/77325




                                                                                                         MR 97
                                                         ..... ,




   A. Defendant's Objections and Responses to Request for Production

       To the extent that Plaintiff is seeking responses and documents for alleged extra-

contractual claims, Defendant contends the proper procedure is for the Court to sever all extra-

contractual claims from the Wlderlying contract claim in this case, and to deny Plaintiff's

discovery requests related to the extra-contractual claims. The Plaintiff should first have to

prove his damages before Defendant be made to defend the extra contractual claims. Plaintiff

has made the following inappropriate and irrelevant requests for extra-contractual information

for the following request for production: 1, 6, 8, 9, 13, 14, 18, 19, 20, 21, 22, 23, 24, 26, 27, 28,

29, 30, 1, 32, 33, and 34.

        After careful review and consideration, Defendant has considered Plaintiff's Motion to

Compel to the following requests for productions, and stands by and asserts the objections

previously submitted to the following requests: 2, 3, 5, and 7.

        1. The entire claims file and/or adjuster logs including, but not limited to, photographs,
           statements, notes, memoranda, tables, computer-generated information and other
           written documents contained therein, that were generated in connection with the
           injury to the Plaintiff that forms the basis of this lawsuit.

        RESPONSE:
        The Defendant objects to this request on the grounds it violates the attorney client,
        attorney work product, witness statement and party communication privileges. The
        Defendant further objects to this Request as being over broad, vague, ambiguous and
        outside the scope of proper discovery. See Loftin v. Martin, 776 S.W.2d 145, 148 (Tex.
        1989). The Defendant further objects to this Request as being outside the scope of
        discovery as it concerns matters that are not relevant to the instant litigation nor is the
        request reasonably calculated to lead to the discovery of admissible evidence pursuant to
        the Texas Rules of Civil Procedure. The Defendant further objects to this request in that
        the Plaintiff has the burden of proof to evince that relevant to any issue in this cause. In
        order for the Plaintiff to recover under their UIM claim, they must prove that the
        purported underinsured/uninsured motorist negligently caused the accident that resulted
        in their purported damages. See Allstate Ins. Co. v. Bonner, 51 S.W.3d 289, 291-92

DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL                                 PAGE6
#1468054/77325




                                                                                                        MR 98
                              -----~~-------~··-,
                                                                                               I   '




                                           .......•.   ,~·-~~~-~~--~---~~--




       (Tex.2001); Wellisch v. United Servs. Auto. Ass'n, 75 S.W.3d 53, 57 (Tex.App.-San
       Antonio 2002, pet. denied). The Defendant further objects to this request to the extent
       that the documents called ·for therein is not relevant to any issue in this cause. The
       Plaintiff has yet to obtain judgment establishing the liability and underinsured/uninsured
       status of the other motorist. Brainard v. Trinity Universal Insurance Company, 216
       S.W.3d.809 (Tex. 2006). See also Henson v. Southern Farm Bureau Casualty Insurance
       Company, 17 S.W.3d 652, 653-54 (Tex. 2000). The Defendant further objects as Plaintiff
       is not entitled to discovery of privileged information regarding bad-faith claims so long
       as the insurance company's liability under the underlying liability claim remains
       undetennined. See Maryland Am. Gen. Ins. Co. v. Blaclanon, 639 S.W.2d 455, 457-58
       (Tex. 1982).

       Plaintiff's very first Request for Production question is to request documents that are
                                                                                                                ii
neither relevant nor likely to lead to admissible evidence to prove Plaintiff's damages in the                  !r
                                                                                                                !t,,
subject motor vehicle accident. The Texas Supreme Court has held that a UM/UIM carrier is                       j·

                                                                                                                iI
under no contractual duty to pay benefits until the insured obtains a judgment establishing the

liability and underinsured status of the other motorist. Brainard, 216 S.W.3d at 818. Because

Request for Production No. 1 is inappropriate and outside the scope of proper discovery,

Defendant has objected and reasserts its objections.

       2.     All written docmnentation of any investigation or reconstrnction of the collision
       (other than those conducted by governmental/law enforcement entities or retained
       experts) from which this lawsuit arises.

       RESPONSE:
       Defendant objects to this request as it is overly broad, vague and unduly burdensome.
       The Defendant further objects to this request on the grounds it violates the attorney client,
       attorney work product, witness statement and party co=unication privileges. Defendant
       objects to this Request as being outside the scope of discovery as it concerns matters that                     .
                                                                                                                       i
       are not relevant to the instant litigation nor is the request reasonably calculated to lead to
       the discovery of admissible evidence pursuant to the Texas Rules of Civil Procedure.
       Defendant further objects to this request to the extent that the documents called for
       therein is not relevant to any issue in this cause. The Plaintiff has yet to obtain judgment
       establishing the liability and underinsured/uninsured status of the other
       motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.


DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL                                 PAGE7
# 1468054/77325




                                                                                                        MR 99
----------,-----------,                                     ,-   I




                                                                                    . ·1




          2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
          S.W.3d 652, 653-54 (Tex. 2000). The Defendant further objects as Plaintiff is not entitled
          to discovery of privileged information regarding bad-faith claims so long as the insurance
          company's liability under the underlying liability claim remains undetermined. See
          Maryland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d455, 457-58 (Tex. 1982).

          Plaintiffs request is for documents that are neither relevant nor likely to lead to

   admissible evidence to prove Plaintiff's damages in the subject motor vehicle accident.

   Defendant was not a party or witness to the motor vehicle collision. The Texas Supreme Court

   has held that a UM/IJIM carrier is under no contractual duty to pay benefits until the insured

   obtains a judgment establishing the liability and underinsured status of the other motorist.

   Brainard, 216 S.W.3d at 818. Because Request for Production No. 2 is inappropriate and

   outside the scope of proper discovery, Defendant has objected and reasserts its objections.

          3.      All photographs, motion pictures, video recordings, umps, drawings, charts,
          diagrams, measurements, surveys, or other documents concerning the events and
          happenings made the basis of tills lawsuit, the vehicles in question, the scene of the
          collision at issue, or the area, persons, or objects involved either made at the time of or
          since the collision at issue.

          RESPONSE:
          Defendant objects to this request as it is overly broad, vague and unduly burdensome.
          Defendant further objects to this request on the grounds it violates the attorney client,
          attorney work product, witness statement and party communication privileges. Defendant
          further objects to this Request as being outside the scope of discovery as it concerns
          nmtters that are not relevant to the instant litigation nor is the request reasonably
          calculated to lead to the discovery of admissible evidence pursuant to the Texas Rules of
          Civil Procedure. Defendant further objects to this request to the extent that the documents
          called for therein is not relevant to any issue in this cause. The Plaintiff has yet to obtain
          judgment establishing the liability and underinsured/uninsured status of the other
          motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
          2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
                                                                                                                    j.
          S.W.3d 652, 653-54 (Tex. 2000). Defendant further objects as Plaintiff is not entitled to
          discovery of privileged information regarding bad-faith claims so Jong as the insurance
          company's liability under the underlying liability claim renmins undetermined. See
          Maryland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982).

   DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL                                    PAGES
   #1468054/77325




                                                                                                           MR 100
---------,
                                                                                                                       I   '




                                                                              ·- r   ------~------~




             Defendant previously produced documents in response to the request for photographs,
             maps, drawings, diagrams, the vehicles in question, the scene of the collision. To the
             extent, the request calls for "or other documents concerning the events and happenings
             made the basis of this lawsuit," Defendant contends Request for Production No. 3 is
             overly broad, vague, and unduly burdensome, in that it is unclear what "other documents"
             Plaintiff requests. The unknown documents requested by Plaintiff may be or likely to be
             pTivileged, work product, and not relevant; therefore, Defendant has objected and
             reasserts its objections.

             4.      Answered without objections.

             5.      All incident reports (other than those created by governmentalllaw enforcement
             entities or retained experts) and/or witness statements relating to or discussing the
             collision made the basis of this lawsuit and/or the injuries that Plaintiff claims resulted
             from said collision.

             RESPONSE:
             Defendant objects to this request as it is overly broad, vague and unduly burdensome.
             Defendant further objects to this request on the grounds it violates the attorney client,
             attorney work product, witness statement and party counnunication privileges. Defendant
             further objects to this Request as being outside the scope of discovery as it concerns
             matters that are not relevant to the instant litigation nor is the request reasonably
             calculated to lead to the discovery of admissible evidence pursuant to the Texas Rules of
             Civil Procedure. Defendant further objects to this request to the extent that the documents
             called for therein is not relevant to any issue in this cause. The Plaintiff has yet to obtain
             judgment establishing the liability and underinsured/uninsured status of the other
             motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
             2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
             S.W.3d 652, 653-54 (Tex. 2000). Defendant further objects as Plaintiff is not entitled to
             discovery of privileged information regarding bad-faith claims so long as the insurance
             company's liability under the underlying liability claim remains undetermined. See
             Maryland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d 455, 457-5& (Tex. 1982).

             Plaintiffs request is for documents that are neither relevant nor likely to lead to

       admissible evidence to prove Plaintiffs damages i11 the subject motor vehicle accident.

       Defendant was not a party or witness to the motor vehicle collision. Because Request for




       DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL                               PAGE9
       #] 468054/77325




                                                                                                              MR 101
I   I




          .. ·.1--1




        Production No. 5 is inappropriate and outside the scope of proper discovery, Defendant has

        objected and reasserts its objections.

                      6.      All correspondence, memoranda, reports, e-mails, facsimile transmissions, and all
                      other documents evidencing conunullications regarding the insurance claim(s) or any
                      aspect of said claim(s) that is the subject of this litigation between Defendant and its (a)
                      adjusters, (b) employees, (c) officers, (d) agents, € representatives, (f) independent
                      adjusters (other than those retained for the purpose of litigation), and/or (g) independent
                      adjusting :firms (other than those retained for the purpose of litigation).

                      RESPONSE:                                                                                                 !.
                      Defendant objects to this request as it is overly broad, vague and unduly burdensome.
                      Defendant further objects to this request on the grounds it violates the attorney client,
                      attorney work product, witness statement and paity communication privileges. Defendant
                      further objects to this request to the extent that it is outside the scope of discovery as it
                      regards matters that are not relevant to the subject matter of this present lawsuit, seeks
                      information which is not relevant to the claims asserted by the Plaintiff, and is not
                      reasonably calculated to lead to the discovery of admissible evidence pursuant to the
                      Texas Rules of Civil Procedure. Defendant further objects to this request to the extent
                      that the documents called for therein is not relevant to any issue in this cause. The
                      Plaintiff has yet to obtain judgment establishing the liability and nnderinsured/nninsured
                      status of the other motorist. Brainard v. Trinity Universal Insurance Company, 216
                      S.W.3d.809 (Tex. 2006). See also Henson v. Southern Farm Bureau Casualty Insurance
                      Company, 17 S.W.3d 652, 653-54 (Tex. 2000). Defendant further objects as Plaintiff is
                      not entitled to discovery of privileged information regarding bad-faith claims so long as
                      the insurance company's liability under the underlying liability claim remains
                      nndetermined. See Maryland Am. Gen. Ins. Co. v. Blaclanon, 639 S.W.2d 455, 457-58
                      (Tex. 1982).

                      Plaintiff's request for documents are neither relevant nor likely to lead to admissible

        evidence to prove Plaintiff's damages in the subject motor vehicle accident. The Texas Supreme

        Court has held that a UM/UIM carrier is nuder no contractual duty to pay benefits until the

        insured obtains a judgment establishing the liability and underinsured status of the other

        motorist. Brainard, 216 S.W.3d at 818. Because Request for Production No. 6 is inappropriate
                                                                                                                               !!.
                                                                                                                               ,..
        and outside the scope of proper discovery, Defendant has objected and reasserts its objections.                        !'


        DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL                                       PAGElO
        #1468054/77325




                                                                                                                      MR 102
       7.      All documents regarding every telephone conversation with or regarding Plaintiff.

       RESPONSE:
       Defendant objects to this request as it is overly broad, vague and unduly burdensome.
       Defendant objects to this request on the grounds it violates the attorney client, attorney
       work product, witness statement and party communication privileges. Defendant further
       objects to this request to the extent that it is outside the scope of discovery as it regards
       matters that are not relevant to the subject matter of this present lawsuit, seeks
       information which is not relevant to the claims asserted by the Plaintiff, and is not
       reasonably calculated to lead to the discovery of admissible evidence pursuant to the
       Texas Rules of Civil Procedure. Defendant further objects to this request to the extent
       that the documents called for therein is not relevant to any issue in this cause. The
       Plaintiff has yet to obtain judgment establishing the liability and underinsured/uninsured
       status of the other motorist. Brainard v. Trinity Universal Insurance Company, 216
       S.W.3d.809 (Tex. 2006). See also Henson v. Southern Farm Bureau Casualty Insurance
       Company, 17 S.W.3d 652, 653-54 (Tex. 2000). Defendant further o~jects as Plaintiff is
       not entitled to discovery of privileged information regarding bad-faith claims so long as
       the insurance company's liability under the underlying liability claim remains
       undetermined. See Maryland Am Gen. Ins. Co. v. Blackmon, 639 S.W.2d 455, 457-58
       (Tex. 1982).

       Plaintiffs request is for documents that are neither relevant nor likely to lead to

admissible evidence to prove Plaintiffs damages in the subject motor vehicle accident.

Defendant was not a party or witness to the motor vehicle collision. Because Request for

Production No. 7 is inappropriate and outside the scope of proper discovery, Defendant has

objected and reasserts its objections.

       8.     All documents regarding the amount(s) set aside and/or placed in reserve
       regarding Plaintiffs claim for uninsured/underinsured motorist coverage benefits herein.

       RESPONSE:
       Defendant objects to this request as it is overly broad, vague and unduly burdensome.
       Defendant further objects to this request to the extent that it is outside the scope of
       discovery as it regards matters that are not relevant to the subject matter of this present
       lawsuit, seeks information which is not relevant to the claims asserted by the Plaintiff,
       and is not reasonably calculated to lead to the discovery of admissible evidence pursuant
       to the Texas Rules of Civil Procedure. Defendant further objects to this request to the

DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL                                PAGE11
#1468054/77325




                                                                                                       MR 103
----~-,

                                                                                                                   I   I




                                                                                                                           ... I




                 extent that the documents called for therein is not relevant to any issue in this cause. The
                 Plaintiff has yet to obtain judgment establishing the liability and underinsured/uninsured
                 status of the other motorist. Brainard v. Trinity Universal Inswance Company, 216
                 S.W.3d.809 (Tex. 2006). See also Henson v. Southern Farm Bureau Casualty Insurance
                 Company, 17 S.W.3d 652, 653-54 (Tex. 2000). Defendant further objects as Plaintiff is
                 not entitled to discovery of privileged information regarding bad-faith claims so long as
                 the insurance company's liability under the underlying liability claim remains
                 undetermined. See Maryland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d 455, 457-58
                 (Tex. 1982). Defendant further objects to this request on the grounds it violates the
                 attorney client, attorney work product, witness statement and party communication
                 privileges.

                 Plaintiff's request is for documents that are neither relevant nor likely to lead to

          admissible evidence to prove Plaintiff's damages in the subject motor vehicle accident. The

          Texas Supreme Court has held that a UM/UIM carrier is under no contractual duty to pay

          benefits until the insured obtains a judgment establishing the liability and underinsured status of

          the other motorist. Brainard, 216 S.W.3d at 818. Because Request for Production No. 8 is

          inappropriate and outside the scope of proper discovery, Defendant has objected and reasserts its

          objections.

                 9.      All non-privileged investigative reports regarding the collision made the basis of
                 this lawsuit including documents, memoranda, photographs, video recordings, movies,
                 statements, reports, drawings, communications, and tangible things attached to such
                 reports or referred to therein.

                 RESPONSE:
                 Defendant objects to tbis request as it is overly broad, vague and unduly burdensome.
                 Defendant further objects to this request to the extent that it is outside the scope of
                 discovery as it regards matters that are not relevant to the subject matter of this present
                 lawsuit, seeks information which is not relevant to the claims asserted by the Plaintiff,
                 and is not reasonably calculated to lead to the discovery of admissible evidence pursuant
                 to the Texas Rules of Civil Procedure. Defendant further objects to this request to the
                ·extent that the documents called for therein is not relevant to any issue in this cause. The
                 Plaintiff has yet to obtain judgment establishing the liability and underinsured/uninsured
                 status of the other motorist. Brainard v. Trinity Universal Insurance Company, 216
                 S.W.3d.809 (Tex. 2006). See also Henson v. Southern Farm Bureau Casualty Insurance

          DEFENDANT'S RESPONSE TO PLAINTIFF'S MO'ITON TO COMPEL                              PAGE12
          #1468054177325




                                                                                                                MR 104
I   !
                                                                                   !   I




               Company, 17 S.W.3d 652, 653-54 (Tex. 2000). Defendant further objects as Plaintiff is
               not entitled to discovery of privileged information regarding bad-faith claims so long as
               the insurance company's liability under the underlying liability claim remains
               undetermined. See Maryland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d 455, 457-58
               (Tex. 1982).

               Plaintiffs request is for documents that are neither relevant nor likely to lead to

        admissible evidence to prove Plaintiffs damages in the subject motor vehicle accident.

        Defendant was not a party or a witness to the subject motor vehicle accident. The Texas Supreme

        Court has held that a UM/UIM carrier is under no contractual duty to pay benefits until the

        insured obtains a judgment establishing the liability and underinsured status of the other

        motorist. Brainard, 216 S.W.3d at 818. Because Request for Production No. 9 is inappropriate,

        outside the scope of proper discovery, and is duplicitous of request numbers 2, 3, 4, and 5,

        Defendant has objected and reasserts its objections.

               10.    Complete and legible photocopies or audible recordings of every written or oral
               statement obtained by you or on your behalf from any person designated by any party as
               having knowledge ofrelevant facts pursuantto Texas Rule of Civil Procedure 194.2(e).

               RESPONSE:
               Defendant will supplement response.

               11.    If already produced herein, a complete copy of every primary, umbrella, and
               excess insurance policy or agreement, including all declarations page(s), endorsements,
               aniendments, riders, and attaclunents in effect when the subject collision occurred and
               providing coverage to Plaintiff for injuries suffered in the subject collision.

               RESPONSE:
               The Defendant objects to this request to the extent that it is outside the scope of discovery
               as it regards matters that are not relevant to the subject matter of this present lawsuit,
               seeks information which is not relevant to the claims asserted by the Plaintiff, and is not
               reasonably calculated to lead to the discovery of admissible evidence pursuant to the
               Texas Rules of Civil Procedure. Defendant will supplement response.·




        DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL                                PAGE13
        #1468054/77325




                                                                                                               MR 105
----~------~---1                                                           ----------------,

                                        """!




                  Plaintiff's request is for documents that are neither relevant nor likely to lead to

        admissible evidence to prove Plaintiff's damages in the subject motor vehicle accident.

        Therefore, Defendant maintains its objection, but agrees to produce a certified copy of Plaintiff's

        policy.

                  12.     Answered with no objections.

                  13.    All non-waiver agreements, reservation of rights letters, and other documents or
                  co=unications regarding any contractual obligation owed to you by Plaintiff or
                  condition precedent to recovery with which Plaintiff must comply.

                  RESPONSE:
                  Defendant objects to this request as it is overly broad, vague and unduly burdensome.
                  Defendant further objects to this request to the extent that it is outside the scope of
                  discovery as it regards matters that are not relevant to the subject matter of this present
                  lawsuit, seeks information which is not relevant to the claims asserted by the Plaintiff,
                  and is not reasonably calculated to lead to the discovery of admissible evidence pursuant
                  to the Texas Rules of Civil Procedure. Defendant further objects to this request to the
                  extent that the documents called for therein is not relevant to any issue in this cause. The
                  Plaintiff has yet to obtain judgment establishing the liability and underiusured/uninsured
                  status of the other motorist. Brainard v. Trinity Universal Insurance Company, 216
                  S.W.3d.809 (Tex. 2006). See also Henson v. Southern Farm Bureau Casualty Insurance
                  Company, 17 S.W.3d 652, 653-54 (Tex. 2000). Defendant further objects as Plaintiff is
                  not entitled to discovery of privileged information regarding bad-faith claims so long as
                  the insurance company's liability under the underlying liability claim remains
                  undetermined. See Maryland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d 455, 457-58
                  (Tex. 1982). Defendant further objects to this request on the grounds it violates the
                  attorney client, attorney work product, witness statement and party communication
                  privileges.

                  Plaintiff's request is for documents that are neither relevant nor likely to lead to

        admissible evidence to prove Plaintiff's damages in the subject motor vehicle accident. The

        Texas Supreme Court has held that a UM/UIM carrier is under no contractual duty to pay

        benefits until the insured obtains a judgment establishing the liability and uuderinsured status of

        the other motorist. Brainard, 216 S.W.3d at 818. Because Request for Production No. 13 is

        DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL                                     PAGE14
        #1468054/77325




                                                                                                                 MR 106
                                       -----~---------·-,
                                                                                                        C   I



. ··.·... 1




   inappropriate and outside the scope of proper discovery, Defendant has objected and reasserts its

   objections.

              14.     All documents relating to any initial determination, temporary determination,
              tentative determination, or final determination regarding whether Plaintiff's claim herein
              is payable or not payable.                                                                                 !\
                                                                                                                         r.~



              RESPONSE:
                                                                                                                         '
              Defendant objects to this request as it is overly broad, vague and unduly burdensome.
              Defendant further objects to this request on the grounds it violates the attorney client,
              attorney work product, witness statement and party communication privileges. Defendant
              further objects to this request to the extent that it is outside the scope of discovery as it
              regards matters that are not relevant to the subject matter of this present lawsuit, seeks
              information which is not relevant to the claims asserted by the Plaintiff, and is uot
              reasonably calculated to lead to the discovery of admissible evidence pursuant to the
              Texas Rules of Civil Procedure. Defendant further objects to this interrogatory in that the
              Plaintiff has the burden of proof to evince that relevant to any issue in this cause. In
              order for the Plaintiff to recover under the.ir UIM claim, they must prove that the
              purported underinsured/uninsured motorist negligently caused the accident that resulted
              in their purported damages. See Allstate Ins. Co. v. Bonner, 51 S.W.3d 289, 291-92
              (Tex.2001); Wellisch v. United Servs. Auto. Ass'n, 75 S.W.3d 53, 57 (Tex.App.-San
              Antonio 2002, pet. denied). Defendant further objects to this request to the extent that the
              documents called for therein is not relevant to any issue in this cause. The Plaintiff has
              yet to obtain judgment establishing the liability and underinsured/uninsured status of the
              other motorist. Brainardv. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
              2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
              S.W.3d 652, 653-54 (Tex. 2000).

              Plaintiff's request is for documents that are neither relevant nor likely to lead to

    admissible evidence to prove Plaintiff's damages in the subject motor vehicle accident. The

    Texas Supreme Court has held that a UM/UIM carrier is under no contractual duty to pay

    benefits until the insured obtains a judgment establishing the liability and underinsured status of

    the other motorist. Brainard, 216 S.W.3d at 818. Because Request for Production No. 14 is

    inappropriate and outside the scope of proper discovery, Defendant has objected and reasserts its

    objections.

    DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL                                   PAGE15
    #1468054/77325




                                                                                                                MR 107
                                             --,                   ,-

             ---.-,-----·   ~­                        -.. ·.-;

               '




       15.         Answered without objections.

       16.         Answered without objections.

       17.         Answered without objections.

       18.      All documents, records, reports, notations, and/or memoranda regarding the
       Plaintiff from persons and/or entities that compile information regarding bodily injury
       claims, health insurance claims, liability/property/casualty insurance claims, worker's
       compensation claims, and other insurance claims, including but not limited to the
       Insurance Services Office ("ISO"), Southwest Index Bureau, and all similar persons or
       entities.

       RESPONSE:
       Defendant objects to this request as it is overly broad, vague and unduly burdensome.
       Defendant further objects to this request on the grounds it violates the attorney client,
       attorney work product, witness statement and party communication privileges. Defendant                    !.
                                                                                                                 !:
       further objects to this request to the extent that it is outside the s_cope of discovery as it
       regards matters that are not relevant to the subject matter of this present lawsuit, seeks
       information which is not relevant to the claims asserted by the Plaintiff, and is not
       reasonably calculated to lead to the discovery of admissible evidence pursuant to 1he
       Texas Rules of Civil Procedure. Defendant asserts its privileges relating to computer
       programs, manuals, and database information to the extent that it constitutes Trade
       Secrets and other proprietary information. See Tex. R. Civ. Evidence 507; Tex. R. Civ.
       P. 76(a)(2)(c); Computer Assoc. Int 7 v. Altai; Inc., 918 S.W.2d 453, 455 (Tex. 1996),
       RESTATEMENT (213) OF TORTS - 757, comment (b). Plaintiff has the burden of
       establishing the information requested herein is necessary for a fair adjudication of this
       claim which has not been established to date. Defendant asserts that the benefit that
       Plaintiff might obtain from 1his inforrnation, if any, doe s not and cannot outweigh harm
       of disclosure to the defendant. See In re Leviton Mfg. Co. Inc., 1 S.W.3d 898, 902 (Tex.
       App.-Waco 1999, orig. proceeding).

       Plaintiffs request is for documents that are neither relevant nor likely to lead to

admissible evidence to prove Plaintiffs damages in 1he subject motor vehicle accident. The

Texas Supreme Court has held 1hat a UM/UIM carrier is under no contractual duty to pay

benefits until the insured obtains a judgment establishing the liability and underinsured status of

the other motorist Brainard, 216 S.W.3d at 818. Because Request for Production No. 18 is


DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL                                PAGE 16
# t46sos4n732s




                                                                                                        MR 108
                                                      -----~---------·-,
                            I   !




inappropriate and outside the scope of proper discovery, Defendant has objected and reasserts its

objections.

19.    All peer reviews, audits, medical summaries, memoranda, notes, letters, and other
       documents relating to or compiled from the medical records that Plaintiff has submitted
       for payment pursuant to the policy at issue herein and/or injuries that Plaintiff claims
       were caused by the collision made the basis of this lawsuit.
                                                                                                                I
                                                                                                                II.
       RESPONSE:                                                                                                !
       Defendant objects to this request as it is overly broad, vague and unduly burdensome.
       Defendant further objects to this request on the grounds it violates the attorney client,
       attorney work product, witness statement and party communication privileges. Defendant                   ..
                                                                                                                i\
       further objects to this request to the extent that it is outside the scope of discovery as it            jl
       regards matters that are not relevant to the subject matter of this present lawsuit, seeks
                                                                                                                j'.
       information which is not relevant to the claims asserted by the Plaintiff, and is not
       reasonably calculated to lead to the discovery of admissible evidence pursuant to the                    I
                                                                                                                i
       Texas Rules of Civil Procedure. Defendant further objects to this request to the extent
       that the documents called for therein is not relevant to any issue in this cause. The
       Plaintiff has yet to obtain judgment establishing the liability and underinsured/uninsured
       status of the other motorist. Brainard v. Trinity Universal Insurance Company, 216
       S.W.3d.809 (Tex. 2006). See also Henson v. Southern Farm Bureau Casualty Insurance
       Company, 17 S.W.3d 652, 653-54 (Tex. 2000). Defendant further objects as Plaintiff is
       not entitled to discovery of privileged information regarding bad-faith claims so long as
       the insurance company's liability under the underlying liability claim remains                           I
       undetermined. See Maryland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d 455, 457-58                         i
                                                                                                                I
       (Tex. 1982).

       Plaintiff's request is for documents that are neither relevant nor likely· to lead to

admissible evidence to prove Plaintiffs damages in the subject motor vehicle accident. The

Texas Supreme Court has held that a UM/UIM carrier is under no contractual duty to pay

benefits until the insured obtains a judgment establishing the liability and underinsured status of

the other motorist. Brainard, 216 S.W.3d at 818. Because Request for Production No. 19 is

inappropriate and outside the scope of proper discovery, Defendant has objected and reasserts its

objections.


DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL                                PAGE17
#1468054/77325




                                                                                                       MR 109
!   '
                           - - - - - - - - - - - - - - - -,


                  . ,--   -~~-~-~~-----~--~-




    20.    All liability work-ups or reports relating to Plaintiffs claim for uninsured/underinsured
           motorist coverage benefits.

           RESPONSE:
           Defendant objects to this request as it is overly broad, vague and unduly burdensome.
           Defendant further objects to this request on the grounds it violates the attorney client,
           attorney work product, witness statement and party communication privileges. Defendant
           forther objects to this request to the extent that it is outside the scope of discovery as it
           regards matters that are not relevant to the subject matter of this present lawsuit, seeks
           infonnation which is not relevant to the claims asserted by the Plaintiff, and is not
           reasonably calculated to lead to the discovery of admissible evidence pursuant to the
           Texas Rules ·of Civil Procedure. Defendant further objects to this request to the extent
           that the documents called for therein is not relevant to any issue in this cause. The
           Plaintiff has yet to obtain judgment establishing the liability and underinsured/uninsured
           status of the other motorist Brainard v. Trinity Universal Insurance Company, 216
           S.W.3d.809 (Tex. 2006). See also Henson v. Southern Farm Bureau Casualty hisurance
           Company, 17 S.W.3d 652, 653-54 (Tex. 2000). Defendant further objects as Plaintiff is
           not entitled to discovery of privileged information regarding bad-faith claims so long as
           the insurance company's liability under the underlying liability claim remains
           undetermined. See Maryland Am. Gen. Ins. Co. v. Blaclanon, 639 S.W.2d 455, 457-58
           (Tex. 1982).

           Plaintiffs request is for documents that are neither relevant nor likely to lead to

    admissible evidence to prove Plaintiffs damages in the subject motor vehicle accident. ·The

    Texas Supreme Court has held that a UMIUIM carrier is under no contractual duty to pay

    benefits until the insured obtains a judgment establishing the liability and underinsured status of

    the other motorist. Brainard, 216 S.W.3d at 818. Because        Re~uest   for Production No. 20 is

    inappropriate and outside the scope of proper discovery, Defendant has objected and reasserts its

    objections.

    21.    All documents relating to your use, if any, of computer software programs in reviewing,
           analyzing, and/or evaluating claims of injury in motor vehicle collisions during 2013 and
           2014.

           RESPONSE:


    DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL                                PAGE18
    # 1468054/77325




                                                                                                           MR 110
-----~---------·-,
                                                       f   I                     --------------·-,




            Defendant objects to this request on the grounds it violates the attorney client, attorney
            work product, witness statement and party communication privileges. Defendant further
            objects to this request as it is overly broad, vague and unduly burdensome. Defendant
            further objects to this request to the extent that it is outside the scope of discovery as it
            regards matters that are not relevant to the subject matter of this present lawsuit, seeks
            information which is not relevant to the claims asserted by the Plaintiff, and is not
            reasonably calculated lo lead to the discovery of admissible evidence pursuant to the
            Texas Rules of Civil Procedure. Defendant asserts its privileges relating to computer
            programs, manuals, and database information to the extent that it constitutes Trade
            Secrets and other proprietary information. See Tex. R. Civ. Evidence 507; Tex. R. Civ.
            P. 76(a)(2)(c); Computer Assoc. Int. 7 v. Altai, Inc., 918 S.W.2d 453, 455 (Tex. 1996),
            RESTATEMENT (213) OF TORTS - 757, comment (b). Plaintiff has the burden of
            establishing the information requested herein is necessary for a fair adjudication of this
            claim which has not been established to date. Defendant asserts that the benefit that
            Plaintiff might obtain from this information, if any, doe s not and cannot outweigh harm
            of disclosure to the defendant. See In re Leviton Mfg. Co. Inc., I S.W.3d 898, 902 (Tex.
            App.-Waco 1999, orig. proceeding). Defendant further objects to this request to the
            extent that the documents called for therein is not relevant to any issue in this cause. The
            Plaintiff has yet to obtain judgment establishing the liability and underinsured/uninsured
            status of the other motorist. Brainard v. Trinity Universal Insurance Company, 216
            S.W.3d.809 (Tex. 2006). See also Henson v. Southern Farm Bureau Casualty Insurance
            Company, 17 S.W.3d 652, 653-54 (Tex. 2000). Defendant further objects as Plaintiff is
            not entitled to discovery of privileged information regarding bad-faith claims so long as
            the insurance company's liability under the underlying liability claim remains
            undetermined. See M01yland Am. Gen. Ins. Co. v. Blaclanon, 639 S.W.2d 455, 457-58
            (Tex. 1982).

            Plaintiffs request is for documents that are neither relevant nor likely to lead to

     admissible evidence to prove Plaintiffs damages in the subject motor vehicle accident. The

     Texas Supreme Court has held that a UM/UIM carrier is under no contractual duty to pay

     benefits until the insured obtains a judgment establishing the liability and underinsured status of

     the other motorist. Brainard, 216 S.W.3d at 818. Because Request for Production No. 21 is

     inappropriate and outside the scope of proper discovery, Defendant has objected and reasserts its

     objections.


     DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL                                PAGE19
     #1468054/77325




                                                                                                            MR 111
------·-,




        22.    All documents relating to your use, if any, of computer software programs in reviewing,
               analyzing, and/or evaluating Plaintiff's claims of injury in the motor vehicle collision that
               forms the basis of this lawsuit.

               RESPONSE:
               Defendant objects to this request on the grounds it violates the attorney client, attorney
               work product, witness statement and party communication privileges. Defendant further
               objects to this request as it is overly broad, vague and unduly burdensome. Defendant
               further objects to this request to the extent that it is outside the scope of discovery as it
               regards matters that are not relevant to the subject matter of this present lawsuit, seeks
               information which is not relevant to the claims asse1ted by the Plaintiff, and is not
               reasonably calculated to lead to the discovery of admissible evidence pursuant to the
               Texas Rules of Civil Procedure. Defendant assetts its privileges relating to computer
               programs, manuals, and database information to the extent that it constitutes Trade
               Secrets and other proprietary information. See Tex. R. Civ. Evidence 507; Tex. R. Civ.
               P. 76(a)(2)(c); Computer Assoc. Int. 7 v. Altai, Inc., 918 S.W.2d 453, 455 (fex. 1996),
               RESTATEMENT (213) OF TORTS - 757, coturnent (b). Plaintiff has the burden of
               establishing the information requested herein is necessary for a fair adjudication of this
               claini which has not been established to date. Defendant asserts that the benefit that
               Plaintiff might obtain from this information, if any, doe s not and cannot ontweigh harm
               of disclosure to the defendant. See Jn re Leviton Mfg. Co. Inc., 1 S.W.3d 898, 902 (Tex.
               App.-Waco 1999, orig. proceeding). Defendant further objects to this request to the
               extent that the documents called for therein is not relevant to any issue in this cause. The
               Plaintiff has yet to obtain judgment establishing the liability and nnderinsured/uninsured
               status of the other motorist. Brainard v. Trinity Universal Insurance Company, 216
               S.W.3d.809 (Tex. 2006). See also Henson v. Southern Fmw Bureau Casualty Insurance
               Company, 17 S.W.3d 652, 653-54 (Tex. 2000). Defendant further objects as Plaintiff is
               not entitled to discovery of privileged information regarding bad-faith claims so long as
               the insurance company's liability under the underlying liability claim remains
               undetermined. See Maryland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d 455, 457-58
               (Tex. 1982).

               Plaintiffs request is for documents that are neither relevant nor likely to lead to

        admissible evidence to prove Plaintiff's damages in the subject motor vehicle accident. The

        Texas Supreme Court bas held that a UM/UIM carrier is under no contractual duty to pay

        benefits until the insured obtains a judgment establishing the liability and underinsured status of

        the other motorist. Brainard, 216 S.W.3d at 818. Because Request for Production No. 22 is

        DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL                                PAGE20
        #t 46sos4n7325




                                                                                                               MR 112
inappropriate and outside the scope of proper discovery, Defendant has objected and reasserts its

objections.

23.    All documents containing your policies, procedures, processes, and/or rules used by your
       employees to assist in their evaluation of unillsured/underinsured motorist claims.

       RESPONSE:
       Defendant objects to this request as it is overly broad, vague and unduly burdensome.
       Defendant further objects to this request on the grounds it violates the attorney client,
       attorney work product, witness statement and party communication privileges. Defendant
       further objects to this request to the extent that it is outside the scope of discovery as it
       regards matters that are not relevant to the subject matter of this present lawsuit, seeks
       information which is not relevant to the claims asserted by the Plaintiff, and is not
       reasonably calculated to lead to the discovery of admissible evidence pursuant to the                    ii
                                                                                                                I.!
       Texas Rules of Civil Procedure. Defendant further objects to this request to the extent                  I.
       that the documents called for therein is not relevant to any issue in this cause. The                    !'
       Plaintiff has yet to obtain judgment establishing the liability and underinsured/uninsured               i.

       status of the other motorist. Brainard v. Trinity Universal Insurance Company, 216
       S.W.3d.809 (Tex. 2006). See also Henson v. Southern Farm Bureau Casualty Insurance
       Company, 17 S.W.3d 652, 653-54 (Tex. 2000). Defendant further objects as Plaintiff is
       not entitled to discovery of privileged information regarding bad-faith claims so long as
       the insurance company's liability under the underlying liability claim remains
       undetermined. See Mmyland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d 455, 457-58
       (Tex. 1982).

       Plaintiffs request is for documents that are neither relevant nor likely to lead to

admissible evidence to prove Plaintiff's damages in the subject motor vehicle accident. The

Texas Supreme Court has held that a UM/UIM carrier is under no contractual duty to pay

benefits until the insured obtains a judgment establishing the liability and underinsured status of

the other motorist. Brainard, 216 S.W.3d at 818. Because Request for Production No. 23 is

inappropriate and outside the scope of proper discovery, Defendant has objected and reasserts its

objections.

24.    All documents containing your policies, procedures, processes, and/or rules used by your
       employees to assist in their evaluation of automobile collision bodily injury claims.

DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL                                PAGE2l
#1468054177325




                                                                                                       MR 113
- - - - - , . . - - - - - - - - - · · · -,                  !   I                                                              -,




                            RESPONSE:
                            Defendant objects to this request as it is overly broad, vague and unduly burdensome.
                            Defendant further objects to this request on the grounds it violates the attorney client,
                            attorney work product, witness statement and party communication privileges. Defendant
                            further objects to this request to the extent that it is outside the scope of discovery as it
                            regards matters that arc not relevant to the subject matter of this present lawsuit, seeks
                            information which is not relevant to the claims asserted by the Plaintiff, and is not
                            reasonably calculated to lead to the discovery of admissible evidence pursuant to the
                            Texas Rules of Civil Procedure. Defendant further objects to this request to the extent
                            that the documents called for therein is not relevant to any issue in this cause. The
                            Plaintiff has yet to obtain judgment establishing the liability and underinsured/uninsured
                            status of the other motorist. Brainard v. Trinity Universal Insurance Company, 216
                            S.Wc3d.809 (Tex. 2006). See also Henson v. Southern Farm Bureau Casualty Insurance
                            Company, 17 S.W.3d 652, 653-54 (Tex. 2000). Defendant further objects as Plaintiff is
                            not entitled to discovery of privileged information regarding bad-faith claims so long as
                            the insurance company's liability under the underlying liability claim remains
                            undetermined. See Maryland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d 455, 457-58
                            (Tex. 1982).

                            Plaintiff's request is for documents that are neither relevant nor likely to lead to

                    admissible evidence to prove Plaintiff's damages in the subject motor vehicle accident. The                      ~-


                    Texas Supreme Court has held that a UM/UIM carrier is under no contractual duty to pay

                    benefits until the insured obtains a judgment establishing the liability and underinsured status of

                    the other motorist. Brainard, 216 S.W.3d at 818. Because Request for Production No. 24 is

                    inappropriate and outside the scope of proper discovery, Defendant has objected and reasserts its

                    objections.

                            25.      Answered without objections.

                            26.    All reports, memoranda, and other documents related to your evaluation of any
                            claim for benefits made by Plaintiff other than the claim at issue herein.

                            RESPONSE:
                            Defendant objects to this request as it is overly broad, vague and unduly burdensome.
                            Defendant further objects to this request on the grounds it violates the attorney client,

                    DEFENDANT'S RESPONSE TO PLAJNTIFF'S MOTION TO COMPEL                                 PAGE22
                    #1468054/77325




                                                                                                                            MR 114
                                                                                                     I   '




-.-··-.-.




                   attorney work product, witness statement and party communication privileges. Defendant
                   further objects to this request to the extent that it is outside the scope of discovery as it
                   regards matters that are not relevant to the subject matter of this present lawsuit, seeks
                   information which is not relevant to the claims asserted by the Plaintiff, and is not
                   reasonably calculated to lead to the discovery of admissible evidence pursuant to the
                   Texas Rules of Civil Procedure. Defendant further objects to this request to the extent
                   that the documents called for therein is not relevant to any issue in this cause. The
                   Plaintiff has yet to obtain judgment establishing the liability and underinsured/uninsured
                   status of the other motorist. Brainard v. Trinity Universal Insurance Company, 216
                   S.W.3d.809 (Tex. 2006). See also Henson v. Southern Farm Bureau Casualty Insurance
                   Company, 17 S.W.3d 652, 653-54 (Tex. 2000). Defendant further objects as Plaintiff is
                   not entitled to discovery of privileged information regarding bad-faith claims so long a~
                   the insurance company's liability under the underlying liability claim remains
                   undetermined. See Maryland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d 455, 457-58
                   (Tex. 1982).

                   Plaintiffs request 1s for documents that are neither relevant nor likely to lead to                      1•


            admissible evidence to prove Plaintiffs damages in the subject motor vehicle accident. The

            Texas Supreme Court has held that a UM/UIM carrier is under no contractual duty to pay

            benefits until the insured obtains a judgment establishing the liability and underinsured status of

            the other motorist. Brainard, 216 S.W.3d at 818. Because Request for Production No. 26 is

            inappropriate and outside the scope of proper discovery, Defendant has objected and reasserts its

            objections.

            27.    All documents relating to every initial determination, temporary determination, tentative
                   determination, or final determination regarding whether any of Plaintiffs claims other
                   than that at issue herein was payable or not payable.

                   RESPONSE:
                   Defendant objects to this request as it is overly broad, vague and unduly burdensome.
                   Defendant further objects to this request on the grounds it violates the attorney client,
                   attorney work product, witness statement and party communication privileges. Defendant
                   further objects to this request to the extent that it is outside the scope of discovery as it
                   regards matters that are not relevant to the subject matter of this present lawsuit, seeks
                   information which is not relevant to the claims asserted by the Plaintiff, and is not


            DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL                                PAGE23
            #1468054/77325




                                                                                                                   MR 115
                                          .!




       reasonably calculated to lead to the discovery of admissible evidence pursuant to the
       Texas Rules of Civil Procedure. Defendant further objects to this request to the extent
       that the documents called for therein is not relevant to any issue in this cause. The
       Plaintiff has yet to ohtainjudgment establishing the liability and underinsured/uninsured
       status of the other motorist. Brainard v. Trinity Universal Insurance Company, 216
       S.W.3d.809 (Tex. 2006). See also Henson v. Southern Farm Bureau Casualty Insurance
       Company, 17 S.W.3d 652, 653-54 (Tex. 2000). Defendant further objects as Plaintiff is
       not entitled to discovery of privileged information regarding bad-faith claims so long as
       the insurance company's liability under the underlying liability claim remains
       undetermined. See Maryland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d 455, 457-58
       (Tex. 1982).
                                                                                                               :
       Plaintiff's request is for documents that are neither relevant nor likely to lead to                    k'


admissible evidence to prove Plaintiff's damages in the subject motor vehicle accident. The

Texas Supreme Court has held that a UMJUIM carrier is under no contractual duty to pay
                                                                                                               k.:.
benefits until the insured obtains a judgment establishing the liability and underinsured status of            ){




the other motorist. Brainard, 216 S.W.3d at 818. Because Request for Production No. 27 is

inappropriate and outside the scope of proper discovery, Defendant has objected and reasserts its

objections.

       28.    All documents regarding and/or discussing your refusal to pay the $20,000.00 that
       you offered on April 28, 2014.

       RESPONSE:
       Defendant objects to this request as it is overly broad, vague and unduly burdensome.
       Defendant further objects to this request on the grounds it violates the attorney client,
       attorney work product, witness statement and party communication privileges. Defendant
       further objects to this request to the extent that the documents called for therein is not
       relevant to any issue in this cause. The Plaintiff has yet to obtain judgment establishing
       the liability and underinsured/uninsured status of the other motorist. Brainard v. Trinity
       Universal Insurance Company, 216 S.W.3d.809 (Tex. 2006). See also Henson v.
       Southern Farm Bureau Casualty Insurance Company, 17 S.W.3d 652, 653-54 (Tex.
       2000). Defendant further objects as Plaintiff is not entitled to discovery of privileged
       information regarding bad-faith claims so long as the insurance company's liability under
       the underlying liability claim remains undetermined. See Maryland Am. Gen. Ins. Co. v.


DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL                               PAGE24
#1468054/77325




                                                                                                      MR 116
                      I   I                    -~---~---------·-,




       Blackmon, 639 S.W.2d 455, 457-58 (Tex. 1982). Defendant further objects to this request
       to the extent that it is outside the scope of discovery as it regards matters that are not
       relevant to the subject matter of this present lawsuit, seeks infonnation which is not
       relevant to the claims asserted by the Plaintiff, and is not reasonably calculated to lead to
       the discovery of admissible evidence pursuant to the Texas Rules of Civil Procedure.

       Plaintiff's request is for documents that are neither relevant nor likely to lead to

admissible evidence to prove Plaintiff's damages in the subject motor vehicle accident. The

Texas Supreme Court has held that a UM/UIM carrier is under no contractual duty to pay

benefits until the insured obtains a judgment establishing the liability and underinsured status of

the other motorist. Brainard, 216 S.W.3d at 818. Because Request for Production No. 28 is
                                                                                                                ,!:
inappropriate and outside the scope of proper discovery, Defendant has objected and reasserts its

objections.

29.    All documents reflecting, regarding, and/or discussing premium payments made by
       Plaintiff for the automobile insurance policy in effect when the collision that is the
       subject of this lawsuit occurred.

RESPONSE:
     Defendant objects to this request as it is overly broad, vague and unduly burdensome.
     Defendant further objects to this request on the grounds it violates the attorney client,
     attorney work product, witness statement and party communication privileges. Defendant
     further objects to this request to the extent that it is outside the scope of discovery as it
     regards matters that are not relevant to the subject matter of this present lawsuit, seeks
     information which is not relevant to the claims asserted by the Plaintiff, and is not
     reasonably calculated to lead to the discovery of admissible evidence pursuaot to the
     Texas Rules of Civil Procedure. Defendant further objects to this request to the extent
     that the documents called for therein is not relevant to any issue in this cause. The
     Plaintiff has yet to obtain judgment establishing the liability and underinsured/uninsured
     status of the other motorist. Brainard v. Trinity Universal Insurance Company, 216
     S.W.3d.809 (Tex. 2006). See also Henson v. Southern Fann Bureau Casualty Insurance
     Company, 17 S.W.3d 652, 653-54 (Tex. 2000). Defendant further objects as Plaintiff is
     not entitled to discovery of privileged information regarding bad-faith claims so long as
     the insurance company's liability under the underlying liability claim remains



DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL                                PAGE25
#1468054177325




                                                                                                       MR 117
       undetermined. See Maryland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d 455, 457-58
       (Tex. 1982).

       Plaintiff's request is for documents that are neither relevant nor likely to lead to

admissible evidence to prove Plaintiff's damages in the subject motor vehicle accident. The

Texas Supreme Court has held that a UM/UIM carrier is under no contractual duty to pay

benefits until the insured obtains a judgment establishing the liability and underinsured status of

the other motorist. Brainard, 216 S.W.3d at 818. Because Request for Production No. 29 is

inappropriate and outside the scope of proper discovery, Defendant ha~ objected and reasserts its

objections.

30.    All documents necessary to determine the name, address, telephone number, immediate
       supervisor, and current employer of all of Defendant's adjusters, employees, agents,
       and/or representatives that have reviewed Plaintiffs claim file from a claims handling or
       claims review standpoint

       RESPONSE:
       Defendant objects to this request as it is overly broad, vagi.Je and unduly burdensome.
       Defendant further objects to this request on the grounds it violates the attorney client,
       attorney work product, witness statement and party communication privileges. Defendant
       further objects to this request to the extent that it is outside the scope of discovery as it
       regards matters that are not relevant to the subject matter of this present lawsuit, seeks
       information which is not relevant to the claims asserted by the Plaintiff, and is not
       reasonably calculated to lead to the discovery of admissible evidence pursuant to the
       Texas Rules of Civil Procedure. Defendant further objects to this request to the extent
       that the documents called for therein is not relevant to any issue in this cause. The
       Plaintiff has yet to obtain judgment establishing the liability and underinsured/uninsured
       status of the other motorist. Brainard v. Trinity Universal Insurance Company, 216
       S.W.3d.809 (Tex. 2006). See also Henson v. Southern Farm Bureau Casualty Insurance
       Company, 17 S.W.3d 652, 653-54 (Tex. 2000). Defendant further objects as Plaintiff is
       not entitled to discovery of privileged information regarding bad-faith claims so long as
       the insurance company's liability under the underlying liability claim remains
       undetermined. See Maryland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d 455, 457-58
       (Tex. 1982).



DEF.ENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL                               PAGE26
#1468054/7732.5




                                                                                                       MR 118
---,------,-----------··-,                                                     -----,-----,---------------i
                                                     I   '




                  Plaintiffs request is for documents that are neither relevant nor likely to lead to

           admissible evidence to prove Plaintiffs damages in the subject motor vehicle accident. The

           Texas Supreme Court has held that a UM/UIM carrier is under no contractual duty to pay

           benefits until the insured obtains a judgment establishing the liability and underinsured status of

           the other motorist. Brainard, 216 S.W.3d at 818. Because Request for Production No. 30 is

           inappropriate and outside the scope of proper discovery, Defendant has objected and reasserts its

           objections.

           31.    All documents and/or materials pertaining to any negotiations for settlement or offers of
                  settlement that were compiled or created prior to the time of the filing of this lawsuit.

                  RESPONSE:
                  Defendant objects to this request as it is overly broad, vague and unduly burdensome.
                  Defendant further objects to this request on the grounds it violates the attorney client,
                  attorney work product, witness statement and party communication privileges. Defendant
                                                                                                                           I
                                                                                                                           L.
                  further objects to this request to the extent that it is outside the scope of discovery as it
                  regards matters that are not relevant to the subject matter of this present lawsuit, seeks
                  information which is not relevant to the claims asserted by the Plaintiff; and is not
                  reasonably calculated to lead to the discovery of admissible evidence pursuant to the
                  Texas Rules of Civil Procedure. Defendant further objects to this request to the extent
                  that the documents called for therein is not relevant to any issue in this cause. The
                  Plaintiff has yet to obtain judgment establishing the liability and underinsured/uninsured
                  status of the other motorist. Brainard v. Trinity Universal Insurance Company, 216
                  S.W.3d.809 (Tex. 2006). See also Henson v. Southern Farm Bureau Casualty Insurance
                  Company, 17 S.W.3d 652, 653-54 (Tex. 2000). Defendant further objects as Plaintiff is
                  not entitled to discovery of privileged information regarding had-faith claims so long as
                  the insurance company's liability under the underlying liability claim remains
                  undetermined. See Maryland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d 455, 457-58
                  (Tex. 1982).

                  Plaintiff's request is for documents that are neither relevant nor likely to lead to

           admissible evidence to prove Plaintiffs damages in the subject motor vehicle accident. The

           Texas Supreme Court has held that a UM/UIM carrier is under no contractual duty to pay


           DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL                                PAGE27
           #1468054/77325




                                                                                                                  MR 119
      I   '
                                  -------~-------                           ·-,


          '




benefits until the insured obtains a judgment establishing the liability and underinsurcd status of

the other motorist. Brainard, 216 S.W.3d at 818. Because Request for Production No. 31 is

inappropriate and outside the scope of proper discovery, Defendant has objected and reasserts its

objections.

32.       All documents, reports, or investigations relied upon by Defendant in denying or delaying
          payment of any benefits to Plaintiff related to the claim that is the subject of this lawsuit.

          RESPONSE:
          Defendant objects to this request as it is overly broad, vague and unduly burdensome.
          Defendant further objects to this request on the grounds it violates the attorney client,
          attorney work product, witness statement and party conununication privileges. Defendant                       ;.
          further objects to this request to the extent that it is outside the scope of discovery as it
          regards matters that are not relevant to the subject matter of this present lawsuit, seeks
                                                                                                                    i
          information which is not relevant to the claims asserted by the Plaintiff, and is not                     L
          reasonably calculated to lead to the discovery of admissible evidence pursuant to the                     iI·
          Texas Rules of Civil Procedure. Defendant further objects to this interrogatory in that the               l
          Plaintiff has the burden of proof to evince that relevant to any issue in this cause. In
          order for the Plaintiff to recover under their UIM claim, they must prove that the
          purported underinsured/uninsured motorist negligently caused the accident that resulted
          in their purported damages. See Allstate Ins. Co. v. Bonner, 51 S.W.3d 289, 291-92
          (Tex.2001); Wellisch v. United Servs. Auto. Ass'n, 75 S.W.3d 53, 57 (Tex.App.-San
          Antonio 2002, pet. denied). Defendant further objects to this request to the extent that the
          documents called for therein is not relevant to any issue in this cause. The Plaintiff has
          yet to obtain judgment establishing the liability and underinsured/uninsured status of the
          other motorist. Brainard v. Trinity Universal Insurance Company, 216 S.W.3d.809 (Tex.
          2006). See also Henson v. Southern Farm Bureau Casualty Insurance Company, 17
          S.W.3d 652, 653-54 (Tex. 2000). Defendant further objects as Plaintiff is not entitled to
          discovery of privileged information regarding bad-faith claims so long as the insurance
          company's liability under the underlying liability claim remains undetermined. See
          Maryland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d455, 457-58 (Tex. 1982).

          Plaintiff's request is for documents that are neither relevant nor likely to lead to

admissible evidence to prove Plaintiffs damages in the subject motor vehicle accident The

Texas Supreme Court has held that a UM!UIM carrier is under no contractual duty to pay


DEFENDANT'S "RESPONSE TO PLAINTIFF'S MOTION TO COMPEL                                   PAGE28
#1468054/77325




                                                                                                           MR 120
                                                       .. ·.·1




benefits until the insured obtains a judgment establishing the liability and underinsured status of

the other motorist. Brainard, 216 S.W.3d at 818. Because Request for Production No. 32 is

inappropriate and outside the scope of proper discovery, Defendant has objected and reasserts its

objections.

33.    All documents regarding any ~ontract that you have with any independent adjuster who
       performed any service on your behalf related to Plaintiffs claim herein.

       RESPONSE:
       Defendant objects to this request as it is overly broad, vague and unduly burdensome.
       Defendant further objects to this request on the grounds it violates the attorney client,
       attorney work product, witness statement and party connnunication privileges. Defendant
       further objects to this request to the extent that it is outside the scope of discovery as it            I
       regards matters that are not relevant to the subject matter of this present lawsuit, seeks
       information which is not relevant to the claims asserted by 1he Plaintiff, and is not
       reasonably calculated to lead to the discovery of admissible evidence pursuant to the
       Texas Rules of Civil Procedure. Defendant further objects to this request to the extent
                                                                                                                I!
       that the documents called for therein is not relevant to any issue in this cause. The
       Plaintiff has yet to obtain judgment establishing the liability and underinsured/uninsured
                                                                                                                I
       status of the other motorist. Brainard v. Trinity Universal Insurance Company, 216                       I
       S.W.3d.809 (Tex. 2006). See also Henson v. Southern Farm Bureau Casualty Insurance                       I
       Company, 17 S.W.3d 652, 653-54 (Tex. 2000). Defendant further objects as Plaintiff is                    i
                                                                                                                I'
       not entitled to discovery of privileged information regarding bad-faith claims so long as                I
       the insurance company's liability under the underlying liability claim remains                           i
       undetermined. See Mmyland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d 455, 457-58
       (Tex. 1982).                                                                                             I
       Plaintiffs request is for documents that are neither relevant nor likely to lead to

admissible evidence to prove Plaintiffs daroages in the subject motor vehicle accident. The

Texas Supreme Court has held that a UM/lTIM carrier is under no contractual duty to pay

benefits until the insured obtains a judgment establishing the liability and underinsured status of

the other motorist. Brainard, 216 S.W.3d at 818. Because Request for Production No. 33 is




DEFENDANT'S RESPONSE TO PLAJNTJFF'S MOTION TO COMPEL                                PAGE29
#1468054/77325




                                                                                                       MR 121
inappropriate and outside the scope of proper discovery, Defendant has objected and reasserts its

objections.

34.    All documents described or utilized in responding to Plaintiff's Interrogatories, Requests
       for Production, and Requests for Admission.

       RESPONSE:
       Defendant objects to this request as it is overly broad, vague and unduly burdensome.
       Defendant further objects to this request on the grounds it violates the attorney client,
       attorney work product, witness statement and party communication privileges. Defendant
       further objects to this request to the extent that it is outside the scope of discovery as it
       regards matters that are not relevant to the subject matter of this present lawsuit, seeks
       information which is not relevant to the claims asserted by the Plaintiff, and is not
       reasonably calculated to lead to the discovery of admissible evidence pursuant to the
       Texas Rules of Civil Procedure. Defendant further objects to this request to the extent
       that the documents called for therein is not relevant to any issue in this cause. The
       Plaintiff has yet to obtain judgment establishing the liability and underinsured/uninsured
       status of the other motorist. Brainard v. Trinity Universal Insurance Company, 216
       S."W.3d.809 (Tex. 2006). See also Henson v. Southern Farm Bureau Casualty Insurance
       Company, 17 S.W.3d 652, 653-54 (Tex. 2000). Defendant further objects as Plaintiff is
       not entitled to discovery of privileged information regarding bad-faith claims so long as
       the insurance company's liability under the underlying liability claim remains
       undetermined. See Maryland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d 455, 457-58
       (Tex. 1982).

       Plaintiff's request is for documents that are neither relevant nor likely to lead to

admissible evidence to prove Plaintiff's damages in the subject motor vehicle accident. The

Texas Supreme Court has held that a UM/UIM carrier is under no contractual duty to pay

benefits until the insured obtains a judgment establishing the liability and underinsured status of

the other motorist. Brainard, 216 S.W.3d at 818. Defendant further objects to this request as it is

an inappropriate discovery request. See Texas Tech. Univ. Health Sci. Ctr. v. Schild, 828 S.W.2d

502 (Tex.App.-El Paso, 1992, orig. prec.). Because Request for Production No. 34 is




DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL                                PAGE30
#1468054/77325




                                                                                                       MR 122
                                                                               !   !




                                                           ~   '



inappropriate and outside the scope of proper discovery, Defendant has objected and reasserts its

objections.

   B. Defendant's Objections and Answers to Interrogatories

       As previously stated and as it is obvious to the Court, Plaintiff is attempting to compel

the Defendant to produce responses that are not relevant to Plaintiff's claim for damages. To the

extent that Plaintiff is seeking responses for alleged extra-contractual claims, Defendant AAA

contends the proper procedure is for the Court to sever all extra-contractual claims from the

underlying contract claim in this case, and to deny Plaintiff's discovery requests related to the

extra-contractual claims. The Plaintiff should first have to prove his damages before Defendant

AAA be made to defend the extra contractual claims.                Plaintiff has made the following

inappropriate and irrelevant requests for extra-contractual information for the following

interrogatories:

       Interrogatory No. 3: (claim files);
       Interrogatory No. 6: (individuals who performed claim work);
       Interrogatory No. 8: (employees evaluating claim/authorizing payment);
       Interrogatory No. 14: (procedures investigating/evaluating Plaintiff's claim);
       Interrogatory No. 15: (identify documents regarding Plaintiffs failure to meet conditions
       precedent; insurance agreement; coverage)
       Interrogatory No. 16: (reasons for denial of Plaintiff's claim);
       Interrogatory No. 17: (computer software program for evaluating claims);
       Interrogatory No. 18: (manuals/guidelines associated with No. 17);
       Interrogatory No. 19: (refusal to pay) and
       Interrogatory No. 20: (release and policy provisions).

       Plaintiff's request is for responses that are neither relevant nor likely to lead to admissible

evidence to prove Plaintiff's damages in the subject motor vehicle accident. The Texas Supreme

Court has held that a UM/UIM carrier is under no contractual duty to pay benefits until the

insured obtains a judgment establishing the liability and underinsured status of the other


DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL                                   PAGE31
#1468054/77325




                                                                                                         MR 123
motorist. Brainard, 216 S.W.3d at 818. Because Interrogatories Numbers 3, 6, 8, 14, 15, 16, 17,

18, 19, and 20 are inappropriate and outside the scope of proper discovery, Defendant has

objected and reasserts its objections.

       After careful review and consideration, Defendant has considered Plaintiff's Motion to

Compel to the following interrogatories, and stands by and asserts the objections previously

submitted to the following requests:

       Interrogatory No. 9: (personal injnry information regarding Plaintiff and tortfeasor);
       Interrogatory No. 12: (factors that are the cause of Plai11tiff's damages); and
       Interrogatory No. 13: (Plaintiff's actions or omission that caused or contributed to the
       collision).

   C. Defendant's Objections and Answers to Admissions

       Of Plaintiff's 18 Requests for Admissions, all but the following three requests were

       answered.

       14.    Based upon your investigation(s) and/or evaluation(s) of Plaintiff's
       uninsured/underinsured motorist claim, you have determined that Plaintiff has sustained
       damage in excess of the smn of (1) Plaintiff's $5,000.00 personal injury protection
       coverage, and (2) Patricia Tompkins' $30,000.00 limit of liability insurance.

       RESPONSE:
       Defendant objects to this request as it is a two part question and vague. Without waiving
       this objection, deny.

       To the best of Defendant's ability, Defendant has responded to Plaintiff's request. Further

and to the extent, Plaintiff has requested Defendant to admit or confirm the amount of Plaintiff's

damages, the request calls for a hearsay response.

        17.    You have failed to pay any portion of the $20,000.00 that you offered Plaintiff on
        April 28, 2014.




DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL                               PAGE32
#1468054/77325




                                                                                                     MR 124
--·-,
                    !   '




        RESPONSE:
             Defendant objects to this request in that it is vague and argumentative. Without waiving
             this objection and subject thereto, Defendant admits that it has not paid the $20,000.00
             offered to Plaintiff on April 28, 2014.

                To the best of Defendant's ability, Defendant has responded to Plaintiffs request.

        Plaintiffs request was a mischaracterization that Defendant "failed" to pay in that Plaintiffs

        failed to agree to accept payment as a release of any and all claims presented.

                18.    Plaintiff has complied with all conditions precedent to recovering from the
                uninsured/nnderinsured motorist coverage contained in your policy number
                TPA016443353.

                RESPONSE:
                Defendant objects to this request as it is vague. Without waiving this objection and
                subject thereto, Defendant cannot admit or deny. Reasonable inquiry has been made for
                this information and the information !mown or easily obtainable is insufficient to enable
                Defendant to admit or deny.

                To the best of Defendant's ability, Defendant has rnsponded to Plaintiffs request.

                                                       III. Conclusion

                Plaintiffs inappropriate discovery requests are an attempt to circumvent the Texas

        Supreme Court's ruling in Brainard v. Trinity Universal Ins. Co., 216 S.W.3d 809 (Tex. 2006)

        by seeking discovery to attempt to show that Plaintiffs injuries and damages fall within the

        coverage of his insurance policy, and that, in turn, Plaintiff is entitled to recover his insurance

        proceeds.           Such requests are confidential and privileged information that is not relevant to

        Plaintiff's claim and proof of damages. Accordingly, the Defendant has made appropriate

        objections and fully answered all of Plaintiff's discovery requests to the best of Defendant's

        ability at this time.           Defendant reasserts its objections to those requests Plaintiff finds

        objectionable.          Defendant requests that this court deny Plaintiffs Motion to Compel in its

        entirety.

        DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL                                  PAGE33
        #1468054/77325




                                                                                                                MR 125
------~-------·-,




                              -------            ,--.--.




        WHEREREFORE, PREMISES CONSIDERED, Defendant prays that tills Court deny

 Plaintiffs Motion to Compel and for any and all other and further relief to which this Defendant

 may show itself to be justly entitled.

                                             Respectfully submitted,

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



                                                 sis Carlos A. Balido
                                             CARLOS A. BALIDO
                                             State Bar No. 01631230                                          ii;
                                             Meadow Park Tower, Suite 1500                                   I
                                                                                                             i
                                             10440 North Central Expressway                                  [
                                             Dallas, Texas 75231
                                             214- 749-4805
                                             214-760-1670 - Fax
                                             BalidoEDocsNoti:fications@wbclawfum.com


                                   CERTIFICATE OF SERVICE

        This is to certify that on the l't day of October, 2015, a true and correct copy of the
 foregoing document was forwarded to all counsel of record.

 M. Raymond Hatcher
 Alan J. Robertson
 Justin A. Smith
 Sloan, Bagley, Hatcher & Perry Law Firm
 P. 0. Drawer 2909
 101 East Whaley Street
 Longview, TX 75606



                                                sis Carlos A. Balido
                                             Carlos A. Balido




 DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL                             PAGE34
 #1468054/77325




                                                                                                    MR 126
                                                                                           Electronically Submitted
                                                                                             10/6/2015 9:50:33 AM
                                                                                        Gregg County District Clerk
                                                                                        By: Debbie Kinney ,deputy




                             AUSTIN  DALLAS  DECATUR  HOUSTON


                                                                                CARLOS A. BALIDO
                                                                                              Partner
                                                                      carlos.balido@wbclawfirm.com
       2014-1365-A                                                            Service of Documents:
                                                           BalidoEDocsNotifications@wbclawfirm.com
                                                                         (214) 347-8320 - Direct Line
                                                                    (214) 347-8321 - Direct Facsimile

                                        October 6, 2015

Via Fax: 903-757-7574
Mr. Raymond Hatcher
Mr. Alan Robertson
SLOAN, BAGLEY, HATCHER & PERRY LAW FIRM
101 East Whaley Street
Longview, Texas 75601

      RE:       Cause No. 201-1365-A; Thomas Jackson vs. AAA Texas County Mutual Insurance
                Company, In the 188th Judicial District, Gregg County, Texas.
                Our File No. 1493-77325

Dear Counsel:

       Please be advised that Defendant’s Motion to Sever and Abate and Defendant’s Special
Exceptions have been set for hearing on November 6, 2015 at 10:30 a.m. in the above-
referenced case.

      Thank you for your attention to this matter.

                                            Very Truly Yours,

                                            /s/ Carlos A. Balido

                                            CARLOS A. BALIDO
CAB/NLR/sw

cc:   Via EFile
      Court Clerk
      188th District Court
      101 E. Methvin, Suite 408
      Longview, TX 75601
                                 WALTERS BALIDO & CRAIN L.L.P.
         MEADOW PARK TOWER 10440 NORTH CENTRAL EXPRESSWAY SUITE 1500 DALLAS, TEXAS 75231
                           FAX: 214.760.1670 TELEPHONE: 214.749.4805
                                      www.wbclawfirm.com                                           MR 127
                                 I   '




                                         CAUSE NO. 2014-1365 -A

THOMAS JACKSON                                     §   IN THE DISTRICT COURT
                                                   §
vs.                                                §   OF GREGG COUNTY, TEXAS
                                                   §
AAATEXASCOUNTYMUTUAL                               §
INSURANCE COMPANY                                  §   1881• JUDICIAL DISTRICT


 PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION FOR SEVERANCE AND/OR
                         PLEA IN ABATEMENT

TO TIIE HONORABLE COURT:

        Plaintiff, Thomas Jackson, files this his Response to Defendant's Motion for Severance

and/or Plea in Abatement and, in support thereof, would respectfully show the Court as follows:


                                               I. FACTS

        On the morning of June 12, 2013, Thomas Jackson was driving west on Pliler Precise

Road. Mr. Jackson approached a traffic control signal and, in obedience to the laws of Texas,

came to a stop. When it was lawful for him to do so, he continued to drive west, across the

intersection of Pliler Precise Road and Judson Road. At the same time, Patricia Tompkins was

traveling north on Judson Road when, with complete disregard for the safety and welfare of other

persons or property, she disregarded the traffic control device on Judson Road, entered the

intersection where Mr. Jackson was traveling and struck the driver's side of Mr. Jackson's

vehicle.

        When this collision occurred, Mr. Jackson was covered by a policy of automobile

insurance, which included UM/UIM coverage, issued by Defendant. Mr. Jackson timely and

properly notified Defendant of the motor vehicle collision that is the subject of this suit and has


Plaintiff's Response to Defendant's Motion
for Severance and/or Plea in Abatement                                                      Page]




                                                                                                      MR 128
                          -----~---------~-,




fully complied with all of the conditions of that insurance policy prior to his filing suit against

Defendant.

        Prior to April 28, 2014, Mr. Jackson compiled his medical records and other information

and sent it to Defendant to evaluate his claim, along with a demand for payment. Defendant, as it

was obliged to do, evaluated coverage and the claim. Based on that evaluation, Defendant

determined that Mr. Jackson's underinsured motorist claim is worth at least $55,000.00, as

evidenced by Defendant's April 28, 2014 offer to pay $20,000.00 in addition to $5,000.00

previously paid by Defendant in personal injury protection benefits and $30,000.00 previously

paid by Ms. Tompkins' insurer. Mr. Jackson made a demand for this undisputed portion of his

underinsured motorist coverage and Defendant refused.

                                IL STANDARD FOR SEVERANCE

        As an initial matter, Defendant, as the party moving for severance and abatement, bears

the burden of establishing the propriety of the motion. A trial court only abuses its discretion in

failing to order a 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, 291 S.W.2d 677, 683 (Tex. 1956). Prejudice is not

presumed simply because contract claims and extra-contractual claims are joined in the same

action and, accordingly, severance is not always mandatory. See Allstate Ins. Co. v. Hunter, 865

S.W.2d 189, 193-194 (Tex.App.-Corpus Christi 1993); see also Progressive County Mut. Ins.

Co. v. Parks, 865 S.W.2d 776, 778 (Tex.App.-El Paso 1993).




Plaintiffs Re!1ponse to Defendant's Motion
for Severance anti/or Plea in Abatement                                                     Page 2




                                                                                                      MR 129
-----~-~------~··-,




                                     III.ARGUMENT & AUTHORITIES

               Defendant's argument is essentially this; anytime breach of contract claims and extra-

      contractual bad faith claims are joined in a suit against an uninsured/underinsured insurance

      carrier, severance is mandated. That is not the case. See Allstate Ins. Co. v. Hunter, 865 S. W.2d

      189 (Tex.App.--Corpus Christi 1993); see Allstate Ins. Co. v. Evins, 894 S.W.2d 847

      (Tex.App.--Corpus Christi 1995); Texas Farmers Ins. Co. v. Cooper, 916 S.W.2d 698

      (Tex.App.-El Paso 1996). Certainly, there are a number of cases, to which Defendant has cited,

      where severance and/or abatement in some context has been found to be proper.

               All of those cases, however, are distinct from this one. In In re Trinity Universal Ins. Co.,

      the insured joined the UM/UIM carrier to the suit against the third party, alleging breach of

      contract and extra-contractual claims, before the third party claim had been resolved. See In re

      Trinity Universal Ins. Co., 64 S.W.3d 463 (Tex.App.-Amarillo 2001). Similarly, F.A. Richard

      involves the propriety of severing a suit against a defendant driver and the defendant's insurance

      adjustor, not breach of contract claims from extra-contractual claims. F.A. Richard & Assoc. 's v.

      Millard, 856 S.W.2d 765 (Tex.App.-Houston [!'1 Dist.] 1993). In Wilborn and Lerner, the crux

      of the bad faith claim surrounded the amount of a settlement offer from the UM/UIM carrier.

      State Farm Mut. Automobile Ins. Co. v. Wilborn, 835 S.W.2d 260 (Tex.App.-Houston [14th

      Dist.] 1992); see also Mid-Century Ins. Co. of Tex. v. Lerner, 901 S.W.2d 749 (Tex.App.-

      Houston [14th Dist.] 1995). The same is true in Millard, where the bad faith claims were

      premised on the "inadequacy of the defendant's settlement offers." U.S. Fire Ins. Co. v. Millard,

      847 S.W.2d 668, 671 (Tex.App.-Houston [1'1 Dist.] 1993). Balderma does not address the

      propriety of severing breach of contract claims from extra-contractual claims against a UM/UIM



      Plaintiff~·
                Response to Defendant's Motion
      for Severance and/or Plea in Abatement                                                         Page 3




                                                                                                               MR 130
             I   I




insurer. Balderma v. Western Casualty Life Ins. Co., 794 S.W.2d 84, 89 (Tex.App.-San

Antonio 1990).

        This case, however, does not involve a suit against a defendant driver and his insurance

adjustor joined in the same suit, or health insurance, nor does it involve a bad faith claim

premised on the inadequacy of a defendant's settlement offer. Defendant has failed to carry its

burden of showing that severance and abatement is proper and, thus, Defendant's motion should

be denied.

             1. Plaintifrs Breach of Contract Claim and Bad Faith Claims for Failnre to
                Tender an Amonnt the UM/UIM Carrier Determined to be Owed

        There are two breach of contract claims in this suit. The first breach of contract claim

arises because this case, unlike those cited by Defendant, involves a carrier who, after an

apparent evaluation of coverage and the claim, ( 1) determined that the insured suffered a covered

loss and was entitled to UM/UIM benefits in the sum of$20,000.00 and (2) refused to tender that

sum upon Plaintiff's request. It is Defendant's failure to tender that sum, not the amount or

adequacy of that sum, that forms the basis for one of Plaintiff's breach of contract claims and the

entire basis for his bad faith claims. See Plaintiff's Second Am. Pet., pg. 3-5.

        Defendant posits that this Court should apply a standard where severance should be

ordered where (1) the claim for the underinsured/uninsured motorist benefits is contractual and

the claim for penalty under Article 21.55 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

Article 21.55 claim is not so interwoven with the tort action and contract action that they involve

the same facts and issues. See Defs Mtn, 3--4. Defendant cites no law or evidence in support of

the proposition that this case and the claims involved in it meet that standard. With respect to the


Plaintiffs Response to Defendant's Motion
for Severance and/or Plea in Abatement                                                       Page 4




                                                                                                       MR 131
breach of contract claim and bad faith claims discussed above, it clearly does not. Plaintiffs

claim that Defendant's failure to tender the undisputed sum of benefits he is entitled to after

Defendant's evaluation of coverage and damages and his claim that that failure is bad faith

involve exactly the same facts and issues and are completely interwoven. As a result, those

claims rely on the same facts and legal issues, and there can be no undue prejudice or waste of

judicial resources in maintaining those claims in the same action. Thus, Defendant's motion for

severance and abatement of those claims fails under the standard Defendant asks this court to

apply.

            2. Plaintiff's Breach of Contract Claim for Defendant's Failure to Properly
               Value and Fully Pay Plaintiff's Damages Under the Policy

         There is, in fairness, an additional breach of contract claim asserted by Plaintiff that does

assert that Plaintiff is entitled to an amount in excess of $20,000.00 in UM/UIM benefits. That

additional breach of contract claim, however, may only be severed from Plaintiffs bad faith

claims if Defendant made an offer to settle the insured's entire contract claim. In re State Farm

Mut. Auto. Ins. Co., 395 S.W.3d 229, 234 (Tex.App.-EI Paso 2012) citing to Liberty Nat. Fire

Ins. Co. v. Akin, 927 S.W.2d 627, 630 (Tex. 1996). In In re State Farm Mut. Auto Ins. Co., the

defendant satisfied its burden of proving that it offered to settle the entire contract claim by

presenting evidence in the "form of letters and affidavits" that it had offered "to settle in full each

of [the insured's] claims for underinsured bodily injury benefits and all damages [the insured]

claimed." See id. at 234 (internal quotations and citations omitted). Here, Defendant has

produced no evidence that they made an offer to settle in full each of Plaintiffs claims for

UM/UIM benefits and all damages Plaintiff claimed. There is not even an allegation that

Defendant made any settlement offer, let alone a settlement offer that was for the entirety of


PlaintifFs Response to Defentlant's Motion
for Severance and/or Plea in Abatement                                                          Page   5



                                                                                                           MR 132
-----------~-,




       Plaintiff's claims, in Defendant's motion. As a result, Defendant has failed to meet its burden of

       pleading, production and persuasion in severing Plaintiff's second breach of contract claim from

       Plaintiff's claims for bad faith. Because severance of Plaintiff's claims is improper, the

       abatement of these claims is also improper.

                   3. Alternatively, the Court Should Consider Bifurcation as Opposed to
                      Severance

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

       inflexible rule that would deny the trial court all discretion and ... require severance in every case

       [iuvolving bad-faith insurance claims], regardless of the likelihood of prejudice." See Liberty

       Nat. Fire Ins. Co. v. Akin, 927 S.W.2d 627, 630 (Tex. 1996). Issues of severance and discovery

       generally rest within the discretion of the trial court. See In re CSX Corp., 124 S.W.3d 149,

       151-52 (Tex. 2003; see also Akin, 927 S.W.2d at 629. While severance may be required where

       a settlement offer has been made for the entirety of a claim, here there is no evidence and no

       allegation that the Defendant has done so and the Court retains its discretion to order bifurcation

       if it determines that some level of protection is warranted to avoid undue prejudice. See In re

       Acceptance Indem. Ins. Co., 2008 WL 659438, at        * 2 (Tex.App.-Beaumont March         13, 2008)

       (finding that the trial court did not abuse its discretion in bifurcating the trial of breach of

       contract and bad faith claims where there was insufficient evidence to determine if the insurer

       had made offers to settle the entirety of a disputed claim); see also In re Allstate Texas Lloyds,

       202 S.W.3d 895, 900 (Tex.App.--Corpus Christi, Edinburg 2006) (holding that trial court did

       not abuse its discretion iu bifurcatiug breach of contract and bad faith claims where the insurer

       failed to meet its burden of establishing that severance and abatement was required).




       Plaintiff's Response to Defendant's Motion
       for Severance and/or Plea in Abatement                                                         Page 6




                                                                                                                MR 133
I   I                                                                                     I   I




                                             IV. PRAYER FOR RELIEF

                For these reasons, Plaintiff respectfully asks the Court to deny Defendant's Motion for

        Severance and/or Plea in Abatement and for any and all other relief to which Plaintiff may be

        justly entitled.


                                                    Respectfully submitted,

                                                    Isl Justin A. Smith
                                                    GLENN A. PERRY
                                                    State Bar No. 15801500
                                                    gperry@sloanfinn.com
                                                    JUSTJN A. SMITH
                                                    State Bar No. 24068415
                                                    jsmith@sloanfirrn.com
                                                     SLOAN, BAGLEY, HATCHER & PERRY LAW FIRM
                                                    101 East Whaley Street
                                                    Longview, Texas 75601
                                                    Telephone    903-757-7000
                                                    Facsimile    903-757-7574

                                                    ATTORNEYS FOR PLAJNTIFF

                                           CERTIFICATE OF SERVICE

               I hereby certify that on this the 5th day of November, 2015 a true and correct copy of the
        foregoing document was served in accordance with the Texas Rules of Civil Procedure on the
        following counsel of record:

               Mr. Carlos A. Balido
               WALTERS, BALIDO & CRAIN,   L.L.P.
               10440 North Central Expressway, Suite 1500
               Dallas, Texas 75231

                                                            Isl Justin A. Smith
                                                            GLENN A. PERRY
                                                            JUSTJN A. SMITH




        Plaintiffs Response to Defendant's Motion
        for Severance and/or Plea in Abatement                                                    Page 7




                                                                                                            MR 134
                                                                                        FILED
                                                                                   GREGG COUNTY; lF...XAS



                                   CAUSE NO. 2014 - 1365 - A

                                                                                                 ·   OF.:PlJT\'
                                                                                 '----C-_..!
THOMAS JACKSON                                     §            IN THE DISTRICT COURT

                                                   §

vs.                                                §            OF GREGG COUNTY, TEXAS

                                                   §

AAA TEXAS COUNTY MUTUAL                            §

INSURANCE COMPANY                                  §            188 1h JUDICIAL DISTRICT



               AGREED ORDER ON PLAINTIFF'S MOTION TO COMPEL

       After considering Plaintiff, Thomas Jackson's Motion to Compel, the response, any

evidence submitted therewith, and arguments of counsel, the Court finds the Motion to be well

taken and therefore GRANTS Plaintiffs Motion to Compel.

       It is therefore, ORDERED, ADJUDGED and DECREED that Plaintiff's Motion to                                           i-.
                                                                                                                           F.
Compel is GRANTED and that all objections asserted by Defendant in its responses to Plaintiff's

First Requests for Admission, First Set of Interrogatories, and First Requests for Production are

hereby OVERRULED.

       The Court further FINDS that the following requests are related to the incident

underlying the suit, Plaintiff's claims for breach of contract and/or Plaintiff's claims for

declaratory judgment: Plaintiff's Request for Admission No. 18; Plaintiff's Interrogatories Nos,

l, 2, 4, 5, 7, 9, 10, I 1, 12, 13, 15, and 20; Plaintiff's Requests for Production Nos. 2, 3, 4, 5, 7, 9,                  :-    '




10, 11, 12, 13, 15, 16, 17, 18, 25, and 29; and Plaintiff's Request for Production No. 34, to the

extent it pertains to these immediately aforementioned discovery requests. It is, therefore,




                                                                                                     Page I




                                                                                                                  MR 135
                                          -----~-----------------,




ORDERED that Defendant shall fully respond to these requests and interrogatories and produce

all responsive information and documents within fourteen (14) days of October I, 2015. It is

fu11her ORDERED that should any information or material be withheld on the basis of privilege

from Defendant's responses to this discovery, Defendant shall produce a privilege log

identifying the information withheld, the specific privilege(s) asserted, information sufficient for

the Court and Plaintiff to assess the applicable of those privileges, and any and all other

information required by Texas Rule of Civil Procedure 193.3 within fourteen (14) days of

October 1, 2015.

       The Court further FINDS that that the following requests are related to Plaintiff's extra-                '[·:
                                                                                                                 '
contractual claims: Plaintiff's Request for Admission No, 17; Plaintiff's Interrogatories Nos. 3,

6, 8, 14, 16, 17, 18, and 19; Plaintiff's Requests for Production Nos. I, 6, 8, 14, 19, 20, 21, 22,

23, 24, 26, 27, 28, 30, 31, 32, and 33; and Plaintiff's Request for Production No. 34, to the extent

it pertains to these immediately aforementioned discovery requests. It is, therefore, ORDERED

that Defendant shall fully respond to these requests and interrogatories and produce all

responsive information and documents within forty-five (45) days of October I, 2015. It is

further ORDERED that should any information or material be withheld on the basis of privilege

from Defendant's responses to this discovery, Defendant shall produce a privilege log

identifying the information withheld, the specific privilege(s) asserted, information sufficient for

the Court and Plaintiff to assess the applicable of those privileges, and any and all other

information required by Texas Rule of Civil Procedure 193.3 within forty-five (45) days of

October l, 2015.




                                                                                               Page 2




                                                                                                        MR 136
                                                                           I   I




• ..   •   >




                          •I ei\J, _(.,,
               SIGNED on _-f"f~_:__   _ _ __   , 2015,

                                                         -1-w.J!-rvi~
                                                         JUDGE PRESIDING
                                                                                                     I
                                                                                                     I
                                                                                                     j:;
                                                                                                     :,..
                                                                                                     r-·




                                                                                                     i'




                                                                                   Page 3




                                                                                            MR 137
---~------~~-,




                                                                                             FILED
                                                                                         GREGG COUNT',~ TEXAS


                                                                                          NOV 0 6 2015
                                          CAUSE NO. 20 I 4-1365-A

       THOMAS JACKSON                               §      IN THE DISTRICT COURT 0
                                                    §
       vs.                                          §      GREGG COUNTY, TEXAS
                                                    §
       AAA TEXAS COUNTY MUTUAL                      §
                                                               1'H
       INSURANCE COMPANY                            §      188       JUDICIAL DISTRICT


         ORDER DENYING DEFENDANT AAA TEXAS COUNTY MUTUAL INSURANCE
           COMP ANY'S MOTION FOR SEVERANCE AND PLEA IN ABATEMENT


              On the (., --11.-i   day of __N_o_\J_._____, 2015, came to be heard Defendant

       AAA Texas County Mutual Insurance Company's Motion for Severance and Plea in Abatement

       to Plaintiff's extra-contractual claims and causes of action. The court, after reviewing the

       arguments of counsel and reviewing the documents on file, is of the opinion that said motion

       should be DENIED.

              IT IS THEREFORE ORDERED, ADJUDGED AND DECREED, that Defendant's

       Motion for Severance and Plea in Abatement is DENIED its entirety, and the Plaintiffs extra-

       contractual claims will not be severed from the underlying contract claim and the extra-
       contractual clail_l!~Jl!e         lk... ~Ott~~ ~a*; +)"li.J -$till b~ bi~co:k~
                                 not abated.
       <1.t\ -to "':ft'....;~'"" ~O\ e.c...tt1tt<:-W.= ~<\A.....'5,
                SIGNED this             (a f'h  day of              No   u               , 2015.



                                                    JUDGE PRESIDING




       ORDER DENYING DEFENDANT'S MOTION FOR SEVERANCE AND
       PLEA IN ABATEMENT-                                                                     Solo Page
       #14872448/77325



                                                                                                          MR 138
