                                      In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                              _________________
                               NO. 09-16-00331-CV
                              _________________


   IN RE TEXAS WINDSTORM INSURANCE ASSOCIATION, BRUSH
         COUNTRY CLAIMS, LTD, AND DAVID GUTIERREZ

________________________________________________________________________

                               Original Proceeding
                 60th District Court of Jefferson County, Texas
                           Trial Cause No. B-183,464
________________________________________________________________________

                          MEMORANDUM OPINION

      In this mandamus proceeding, the relators, Texas Windstorm Insurance

Association, Brush Country Claims, LTD, and David Gutierrez, contend that the

trial court abused its discretion by compelling the relators to produce all

photographs and damage estimates on Hurricane Rita claims that they adjusted or

investigated on property located within a one mile radius of the property that is the

subject of the unfair claims settlement suit. We stayed the trial court’s discovery

order and requested a response from the real parties in interest, David James and


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Sue James. The Jameses argue that the documents would likely include a

significant number of homes similar in age and construction to their home and that

it would be reasonable to expect that other houses in the immediate vicinity would

have been subjected to wind and rain of similar intensity for a similar time period,

and the homes would have sustained similar interior water damage. After

reviewing the petition and the response, we conditionally grant mandamus relief.

      Discovery requests must not be overbroad. In re Nat’l Lloyds Ins. Co., 449

S.W.3d 486, 488 (Tex. 2014) (orig. proceeding). “‘[O]verbroad requests for

irrelevant information are improper whether they are burdensome or not.’” Id.

(quoting In Re Allstate Cnty. Mut. Ins. Co., 227 S.W.3d 667, 670 (Tex. 2007) (orig.

proceeding)). In National Lloyds, the plaintiff alleged her homeowner’s insurer

undervalued her claims for damage to her Cedar Hill home caused by two storms.

Id. at 487–88. The Texas Supreme Court concluded that the trial court abused its

discretion by compelling production of claims files by the adjusting firms on other

Cedar Hill homes damaged in the same storms. Id. at 489–90. The Court held that

the insurer’s evaluation of other homes that were damaged in the same storms

would provide no relevant information to support the plaintiff’s claims that her

claim had been undervalued. Id. at 489. The Court explained that scouring claims

files for similarly situated claimants was at best an impermissible fishing

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expedition, especially considering the many variables associated with a particular

claim. Id.

      In an attempt to distinguish National Lloyds, the Jameses submitted

supplemental affidavits from their experts. Both experts stated that it would be

“beneficial . . . to review historical photographs and estimates of real property

damaged by Hurricane Rita within a one mile radius of the Property[.]” Both of the

Jameses’ experts opined that “[s]uch information, photos, and data would be

reliable, credible and objectively verifiable evidence” for [them] to review in order

to render opinions and conclusions . . . regarding the extent and severity of damage

sustained by the Property[.]”

      However, the lack of relevance of the requested discovery is illustrated by

the initial report of one of the Jameses’ experts, Gregory Becker of Becker

Engineering, Ltd. In this report, Becker explained that neighboring structures

would experience different wind speeds:

      Downbursts (microbursts) and tornados within the hurricane bands
      gust at speeds much higher than the measured wind speeds at any
      particular monitoring station. Highly variable winds, such as tornados
      and downbursts, are likely responsible for a particular structure being
      totally demolished or severely damaged while a neighboring structure
      is left intact. Excessive wind damage is sporadic and these high winds
      are short lived and unpredictable. Therefore, this phenomenon is often
      not measured at monitoring stations nearest the property. Direct
      observation is rare, since occupants are either gone or inside. Also,
      note that adjacent buildings channel winds between the homes and
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      may also accelerate wind velocity. Accordingly, new damage is the
      best indicator of this wind force.

      National Lloyds recognized that insurance claims are unique due to the

“many variables associated with a particular claim, such as when the claim was

filed, the condition of the property at the time of filing (including the presence of

any preexisting damage), and the type and extent of damage inflicted by the

covered event.” Id. The Jameses argued to the trial court that they were seeking

information regarding wind speed and direction to support their experts’ opinions,

but their experts did not rely on this evidence in their reports so the requested

discovery would, at best, merely bolster their opinion testimony. In other words,

when Relators challenged the reliability of the methodology of Jameses’ experts,

the Jameses requested additional discovery hoping that they could scour claim files

in hopes of finding similarly situated claimants. See id.

      The trial court abused its discretion by ordering discovery of irrelevant

information. See id. at 488; Texaco, Inc. v. Sanderson, 898 S.W.2d 813, 815 (Tex.

1995) (orig. proceeding); In re GMAC Direct Ins. Co., No. 09-10-00493-CV, 2010

WL 5550672, at *1 (Tex. App.—Beaumont Dec. 30, 2010, orig. proceeding).

Furthermore, an overbroad request for irrelevant information is improper without

regard to whether the request is also burdensome. In re Allstate Cnty. Mut. Ins.

Co., 227 S.W.3d at 670. Because we have sustained Relators’ complaint that the
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trial court abused its discretion by ordering overbroad discovery, we need not

address their additional complaint that the discovery order is unduly burdensome.

      We are confident that the trial court will vacate its order compelling

discovery and the writ of mandamus shall issue only if the trial court fails to

comply with this opinion.

      PETITION CONDITIONALLY GRANTED.



                                                         PER CURIAM


Submitted on October 6, 2016
Opinion Delivered November 3, 2016

Before Kreger, Horton, and Johnson, JJ.




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