                                                                                  ACCEPTED
                                                                              12-15-00277-CV
                                                                 TWELFTH COURT OF APPEALS
                                                                               TYLER, TEXAS
                                                                         12/2/2015 5:11:54 PM
                                                                                    Pam Estes
                                                                                       CLERK

                      CASE NO. 12- 15-00277 -CV

                               IN THE                         FILED IN
                TWELFTH COURT OF APPEALS               12th COURT OF APPEALS
                                                            TYLER, TEXAS
                         at Tyler                      12/2/2015 5:11:54 PM
                                                              PAM ESTES
                                                                Clerk

     fn re   t'l"l   Texas County Mutua| fnsurance Company


  Petition for Writ of Mandamus from Cause No. 2014-1365-A
            188th District Court, Gregg County, Texas
              Honorable David Brabham Presiding


REAL PARTY IN INTEREST THOMAS JACKSON'S RESPONSE
   TO RELATOR'S PETITION FOR WRIT OF MANDAMUS


                                GLENN PtrRRY
                                Texas Bar No. 15801500
                                E-mail: sap@sloanfirm.com
                                JUSTIN A. SMITH
                                Texas Bar No. 24068415
                                E-mail: jsmith@sloanfirm.com
                                Sloan, Bagley, Hatcher & Perry
                                Law Firm
                                101 East Whaley Street
                                P.O. Drawer 2909
                                Longview, Texas 75606
                                Telephone: 903- 7 57 -7 OO0
                                Telecopier: 903-757 -7 57 4

                               ATTORNEYS FOR REAL PARTY
                               IN INTEREST THOMAS
                               JACKSON

  December 2,2015
                    ORAL ARGUMENT REQUESTED

                IDENTITY OF PARTIES AND COUNSEL
     1. AAA Texas County Mutual Insurance Company, Relator
       Appellate Counsel for Relator       Gregory R. Ave
                                           Texas Bar No. 01448900
                                           E -mail: Gre s. ave@wbclawfrrm.com
                                           Jay R. Harris
                                           Texas Bar No. 00793907
                                           Walters, Balido & Crain, LLP
                                           Meadow Park Tower, Suite 1500
                                           I044O North Central Expressway
                                           Dallas, Texas 75231
                                           Telephone: 214-347-8310
                                           Facsimile : 2t4'347'831 1

     2. AAA   Texas County Mutual Insurance Company, Relator

       Trial Counsel for ßelatof           Carlos Balido
                                           Texas Bar No.O1631230
                                           E -mail : carlos.balido@wbclawfrrm.com
                                       Walters, Balido & Crain, LLP
                                       Meadow Park Tower, Suite 1500
                                       10440 North Central Expressway
                                       Dallas, Texas 7523L
                                       Telephone: 214-7 49-4805
                                       Facsimile : 214-7 60- 1670

3.     ßespondent
                                       The Honorable Judge David Brabham
                                       Judge of the 188th Judicial District
                                       Court of Gregg County, Texas
                                       Gregg County Courthouse
                                       101 E. Methvin St., Suite 408
                                       Longview, Texas 75601
                                       Telephone: 903-237'2588
                                       Facsimile: 903-236-8603




                                       I
4.   Thomas Jackson, Real Party in Interest

     Trial Counsel for Mr. Jackson: Glenn A. Perry
                                    Texas Bar No. 15801500
                                    E -mail: gap@sloanfrrm.com
                                    Justin A.
                                    Texas Bar No. 24068415
                                    E -mail: ismith@sloanfi.rm.com
                                    Sloan, Bagley, Hatcher & Perry Law
                                    Firm
                                    101 East Whaley Street
                                    P.O. Drawer 2909
                                    Longview, Texas 75606
                                    Telephon e: 903' 7 57 - 7000
                                    Facsimile : 903'7 57'7 57 4




                                   l1
                      TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL                                     I

TABLE OF CONTENTS                                                  tu
INDEX OF AUTHORITIES                                                V

TERMINOLOGY                                                       vu
STATEMENT OF THE CASE                                               1


 I.The UIM Lawsuit's Inception and the Genesis of the Subject
 Motion to Compel                                             4

 II.    The Motion to Sever and Abate ......                      T2

STATEMENT REGARDING ORAL ARGUMENT                                 15

ISSUES PRESENTED                                                  16

II. STANDARD OF REVIEW                                            T7

III. ARGUMENT & AUTHORITY                                         18

 I.  Relator's Petition for Writ of Mandamus is Premature and
 will likely be Rendered Moot..                         ...........18

 il.  The Standard for Severance and Abatement in First Party
 fnsurance Cases Involving Extra-contractual Claims         20

 III. Relator Did Not Plead, Allege, Argue, or Provide Evidence
 of Any Facts that Would Require Severance and Abatement,
 thus the Trial Court Could Not have Abused its Discretion .....24
 IV. Bifurcation Protects Relator from Inadmissible Evidence
 Being Presented for Determining Third Party Fault and
 Underinsured Status                                         34



                                  lll
 V.  The Trial Court Did Not Abuse its Discretion in Denying
 Abatement                                                   38

 VI.  Relator Has Failed to Establish that it has No Clear and
 Adequate Remedy by Appeal in Failing to Establish that the
 Trial Court Abused its Discretion or in That it Will Lose
 Substantial Rights By Being Required to Conduct Discovery on
 Jackson's Claims                                              46

 VII. Relator's Requestto Vacate the November 6, 2OI5 Order on
 Jackson's Motion to Compel is Improper............ ..........48

V. CONCLUSION &     PRAYER                            .............49

CERTIFICATE OF SERVICE                                            53

CERTIFICATE OF COMPLIANCE                                         54

TABLE OF CONTENTS TO REAL PARTY IN INTEREST'S
APPENDIX                                             ...............55




                              IV
                      INDEX OF AUTHORITIES
CASES                                                         PAGE(S)

Liberty Nat. Fire fns. Co.   v.   Akin,927 S.W.2d 627
      (Tex. 1966)                                   17, 18,   20-24,   35

Womack v. 8eruy,291 S.W.2d 677
    (Tex. 1956)                                                        L7

Allstate fns. Co. v. Ifuntur,865 S.W.2d 189
      (Tex.App.-Corpus Christi 1993)                    17, 18, 25, 44

Progressive County MuL fns. Co. v. Parks,865 S.W.2d776
      (Tex.App-El Paso 1993)                                           T7

fn re Allstate fns. Co., 2005 WL 1114640
       (Tex.App.-Texarkana M"y 12, 2OO5)                         18, 34

Johnson v. Fourth Court of Appeals,700 S.W.2d 916
      (Tex.   19S5)                                              18, 34

Walker v. Packer,827 S.W.2d 833
     (Tex. 7992)                                                       18

fn re Reynolds,369 S.W.3d 638
      (Tex.App.-Tyler 2OI2)                                            25

fn re Trinity Univ. fns. Co.,2003 WL 22839280
      (Tex.App.-Tyler Nov. 26,2003, orig. proceeding)........ ..... 25

fn re Allstate Texas Lloyds,202 S.W.3D 895
      (Tex.App.-Corpus Christi-Edinburg 2006)                          25

fn re Arcababa, 2013 WL 5890109
      (Tex.App.-Waco October 31, 2013)                                 25


                                     V
Texas Farmers fns. Co. v. Cooper,916 S.W.zd 698
      (Tex.App.-El Paso 1996)                                  25     45-46

fn re State Farm Mut. Auto fns. Co., 395 S.W.3d 229
      (Tex.App.-El Paso 2012, orig. proceeding)                       26, 27,

fn re Reynolds, S.W.3d, 354
      (Tex.App.-Houston h4rt'Dist.l             2003)                  .... 28

fn re Allstate fns. Co.,232 S.W.3d 340
       (Tex.App.-Tyler 2OO7)                       29,3r-34, 38-39,   42, 47

fn re Farmers Tex. MuL fns. Co., 2OII WL 4916303
      (Tex.App.-Amarillo Octob er         17   , 2011)                29, 30

Liberty Nat. Fire fns. Co.   v.   Akin,927 S.W.2D 627
       (Tex. 1996)                                                         35

Accardo v. America First Lloyds fns. Co.,2012WL 1576022
     (S.D.Tex. 2013)                                    40, 4r

I{amburger v. State Arm Mut. Auto fns. Co.,361 F.3D 875
                                                                          4I

Aleman v. Zenith fns. Co.,343 S.W.3D 817
     (Tex.App.-El Paso 2OII, no pet.)                                     4T

Jordan v. Fourth Court of Appeals, 701S.W.zd 644
      (Tex. 19S5)                                                         43

fn re Park Cities Bank,409 S.W.3d 859
       (Tex.App.-Tyler 2013)                                              43

Texas Rules of Civil Procedure

Tex. R. Civ. P. 193.3                                                     43


                                     vl
                           TERMINOLOGY

"AAA" or "Relator"          Relator/Defendant, AAA Texas County
                            Mutual Insurance Company
"Jackson" or "ReaI Party    Real Party in Interest/Plaintiff,
in Interest"                Thomas Jackson
"Judge Brabham" or the      Honorable Davis Brabham, 188th
"trial court"               Judicial District Court, Gregg County,
                            Texas




                                vil
                       STATEMENIIT OF THE CASE

     It is interesting     how an offending party ffiây, through grand

revisionism, portray themselves as the offended. That is exactly

what AAA Texas County Mutual Insurance Company has done in

this case. The truth is that virtually none of arguments made in

Relator's petition were made in the       trial court below and not one
piece of evidence was filed with, cited to, or even mentioned in

Relator's motion to sever and abate or          in Relator's attendant
arguments to the       trial court. In fact, despite the attestations in
Mr. Balidos' affidavit, some of the evidence in the         mandamus

record, namely the extrinsic correspondence upon which Relator

relies to characteríze their offer as one for the entire contract,

labeled MR 4 and MR 5, was neverfited with or mentioned in the

trial court at all and makes its first appearance in this case on
appeal.   ,See   Affidavit of Carlos Balido, pg. 2, see MR 4-MR   5.

     Prior to the underlying wreck which caused Thomas Jackson

severe injury, Relator entered into a contract of insurance with

him, they took his premiums, they promised to provide him with

coverage    in the event he       was    injured by an uninsured or
                                     I
underinsured motorist and assumed the attendant duties of

dealing with him in good faith and fair dealing.     It is undisputed
that the policy exists and provides coverage for the underlying
wreck.   ^9ee
                MR 187.

     On June 12, 2013, Thomas Jackson was involved             in   an

automobile wreck. See MR      7-8.    The facts of the wreck were not

disputed by Relator       in the motion or in their argument on
severance and abatement. See generally MR 139-2L5. On June

12, 201fl Jackson, leaving the church where he works, was headed

west on Pliler Precise Road and came to a stop at the red light

where Pliler Precise Road intersects Judson Road. MR 7; MR 143.

When Jackson's light turned green, he entered the intersection.

MR 7, MR 143. At that same time, Patricia Tompkins was driving

north on Judson Road, disregarded the red light commanding her

to stop, entered the intersection unlawfully, and struck Jackson.

MR 7, MR I43. Jackson was transported from the scene of the

wreck by ambulance to Good Shepherd Medical Center. MR 7, MR

143. To date, Jackson has gathered evidence that he has paid or



                                  2
incurred approximately $47,000.00        in past medical expenses
alone. MR 143.

        The information relating to the wreck and Jackson's injuries

was, of course, presented to Ms. Tompkin's insurer. Ms. Tompkin's

insured tendered their policy limits of $30,000.00. MR   8-9.   Nor is

there any great mystery as to why Ms. Tompkin's insurer did         so,

in light of the fact that Jackson's past medical expenses alone are

approximately $17,000.00 in excess of Ms. Tompkin's policy limits.

        Jackson presented his claim to Relator, providing   it with the
clear facts of this case and his damages. Presumably, Relator

conducted an investigation and made their own determination of

coverage and entitlement to benefits. Based on    that investigation
and determination, Relator offered $20,000.00 in excess of Ms.

Tompkin's policy limits and the PIP benefits that had already

been disbursed. MR 1.

        Relator characterizes that offer as unequivocally being an

offer   to settle the entirety of Mr. Jackson's contract        claim,

including disputed portions of the claim, despite the fact that no

such language appears in the offer. While Jackson disagrees with
                                  J
Relator's characterization, the      truth is that for purposes of
Relator's petition these characterizations do not matter one iota.

Relator had the burden of establishing that      it   was entitled to

severance and abatement below and they did not do so.

      Despite the fact that Jackson has contended since the filing

of this suit that the $20,000.00 offer represented an amount that

was undisputedly owed to him, Relator never pled,            alleged,

argued, or contested in anyfiling prior to this mandamus that the

offer was for disputed damages and the entirety of the contract.

MR 227-228; MR 62-65; MR 93-726; MR 81-86; MR 66-80;

MR 139-182; MR 183-216. Nor did Relator offer any evidence in

support of its motion to sever and abate, let alone evidence that

Relator claimed to support its position that they had made a

settlement offer on the entirety of the contract. MR 66-80; MR

183-216. The trial court was and is entitled to hold Relator to its

burden and doing so is not an abuse of discretion.

     I.    The UIM Lawsuit's Inception and the Genesis of the

           Subject Motion to Compel



                                 4
     This suit was filed on July 16, 2014. MR 217-223. That suit

alleges breach of contract claims, a declaratory judgment claim,

and extra'contractual claims. Id. On October 17, 2014, Jackson's

counsel served Relator with their First Request for Admissions,

First Request for Production and First Set of Interrogatories. MR

88i See also Pet., Tab C. Thirty days later, Relator requested and

Pastor Jackson granted the first of four extensions for Relator to

respond   to written   discovery, extending Relator's deadline to

November 17, 2074. MR 24I. Again, on November 25, 2014,

Relator requested and was given a second extension. MR 242-

243. On December 10, 2014, Relator again requested and was

given a third extension. MR 244. On December 17, 2014, Relator

requested, and received,     a fourth extension to    respond to

discovery. MR 245

     When Relator finally responded to discovery, their responses

were abysmal, where almost every request was objected to and

virtually no responsive information was provided. MR 87-MR     90;

MR 15-65i See also Pet., Tab C. On January 16, 2015, Jackson

filed a motion to compel, which he did not set for hearing. MR
                                 5
236-245.      In a   conference following   the production of their
discovery responses, Relator's asked to table the pending issues

and engage in an early mediation, given the clear facts of thrs case

and purportedly to avoid unnecessary litigation expense. MR 145,

I47, 754, 156-157. Jackson agreed and suggested mediators.        ,See


rd. None of the mediators were acceptable and Relator requested

additional proposals, which Jackson provided. Id. Two months

after Relator's request for an early mediation in April, Relator

finally agreed to a mediator, with whom Jackson worked to obtain

more than a dozen available dates in June and July of 2OI5, which

were circulated to Relator. MR 156-157. Relator claimed they

rwere   not available for any of these dates and requested additional

dates. MR 157. In June, Jackson again circulated more than dozen

available dates for August and September of 2OI5. See id. Relator

chose    the very last available date, six months after Relator's
request for an "early mediation." See id.

        It became clear to Jackson in late June that Relator's tactics
in this case were likely dilatory in nature. On July 15, 2015,
Jackson sent his motion to compel with a letter to Relator seeking
                                   6
to confer on Relator's discovery responses and requesting a
privilege log. MR 252-260. Following that letter, Jackson's

counsel called Relator's counsel three times in an attempt to meet

and confer on discovery, with no response. MR       I57-I58, MR 91.
Jackson's motion to compel was served on Relator on August          7,


2OL5 and was        file marked on August 10, 2015. MR 87, MR      92.

Jackson did not, however, set the motion for hearing, in the hope

that filing the motion would prompt Relator to confer on the
disputes.   It   did not. Finally, on September 10, 2015, after almost

two months of attempting to confer with Relator on discovery,

Jackson set his motion to compel for hearing and served Relator

with notice of the hearing, set for October I, 2015, by both e-filing

and facsimile. MR 26I-264. Even then, however, Relator still

attempted        to delay this case by filing a motion to continue
Jackson's hearing on discovery by informing the       trial court that
the notice of hearing was not e-filed, even though it is clearly file

marked, and that        it did not receive service of the notice via
facsimile, even though the fax confirmation sheet established that

Relator had been served on September 10, 2015. MR 161-162
                                    7
Accordingly,   the trial court denied Relator's motion for
continuance and addressed the merits of Relator's objections

     Just as   it did in the trial court below, Relator attempts to
misrepresent the record here, stating that:

           At prior hearr I, 2015 the parties presented
           to the trial court their arguments as to why
           discovery as to the extra-contractual claims
           should be stayed (bv ArlvÐ and why it
           should not (by Jackson) . Yet, the court did
           not rule [on the motion to compell until
           after tlze severance and abate hearing
           where the trial court then entered an order
           retroactively dating back to October 1, 2OI5
           directing AArt to respond to the extra-
           contractual discovery requests within 45
           days - which became ten days from the date
           of the hearing.

      SeePet. pg. 10 (emphasis added).

     That assertion is blatantly false, as the transcripts to the

October 1 and November 6, 2015 hearings, which Relator chose

not to make part of the record, make perfectly clear. At the
October I, 2015 hearing:

          The Court: All right. Thank yoü, Counsel.
          What relief are you asking for, Mr. Smith?...
          Mr. Smith: The easiest way of doing it is for
          the requests and the interrogatories that
          deal with the substantive underlying claim,
                                 8
           I would ask that those objections be
           overruled and they lRelator] ¡e ordered,
           compelled    to    respond    to those within   14
           days....

           The Court: I'm going to make that ruling.
           Okay. Ail right.

           Mr. Smith: With respect to the bad faith
           claims, perhaps the fairest way of dealing
           with that is to overrule the objections and
           require a response within 30 days, or maybe
           even 45 days. That will give them time to
           file their motion to sever and abate. In the
           event that it's granted, that discovery would
           be pending in the severed claim, and they
           won't have to respond to it until the
           abatement is removed. In the event that it's
           bifurcated, then we already have an order
           that compels the production of that
           information, and we can kind of keep this
           thing rolling.
           The Court:   III   make that ruling....
     MR 178-179 (emphasis added); see also MR I4I (th"
chronological index identifying where in the transcript the "court's

ruling" appears).

     In addition, Judge Brabham ordered, at the October 1, 2075
hearing, that Relator would produce a privilege log for each

category of discovery within the time frames cited, 14 days for the



                                     9
discovery relating to the underlying wreck and within 45 days for

the discovery relating to the extra-contractual claims. MR 180.

     That Relator's alternate reality       IS   purposefully crafted

cannot be doubted. Relator rwas present at the October 1, 2015

hearing, when Judge Brabham first issued his ruling on the

motion to compel. Jackson submitted his proposed order that is

identical in substance to the agreed order, which the trial court

signed on October 26, 2015, eleven (f f) aays prior to the hearing

on the motion to sever and abate. MR 270-27I. Relator itself

informed the trial court at the hearing on its motion to sever and

abate that the   trial court }:rad signed an order on the motion   to

compel    prior to that hearing. MR 189. Last, and most telling,   is

Relator's own acknowledgment of the court's October 1, 2015

ruling when Relator presented its agreed order on the motion to

compel.

             The Court: So this is the order consistent
             with my prior rulinfl....

             [Counsel for Relator]: Yes. Your IIonor.

MR 214 (emphasis added).

                                   10
        While Jackson is not surprised that Relator would
 characterize the       trial court signing the agreed order at their
request as Judge Brabham's first and only ruling on the motion to

compel, despite Relator's prior acknowledgments and, thus,

knowledge that such a characteñzation is false, the prejudice they

claim from that invented fact simply does not exist.

       Relator goes on to inform this Court that "the trial court

reviewed the following discovery requests which clearly go beyond

the scope of the evidence" required to establish Ms. Tompkin's
fault and underinsured status. See Pet. at pg. 11. This                            also

Relator knows is false. The             trial court directed         t}:re   parties to

review the discovery and determine                  if there was an agreement
regarding which discovery requests related to Ms. Tompkins' fault

and insurance status and which related to extra-contractual
claims. MR 179-180; MR 212. Jackson and Relator did confer

following the October         l, 2Ol5 hearing and the discovery requests
reflected    in the Agreed Orderl               reflect Jackson's and Relator's

l This is also true of Plaintiffls Proposed Order, filed on October 6,20t5, since by
that time the parties had conferred and reached an agreement regarding the
discovery requests. The only disagreement at that time, and that prompted the filing
                                           11
agreement as to which discovery requests relate to which claims.

MR 2T2.

       Almost half of the requests Relator now contends the trial

court reviewed and "clearly go beyond the scope of the evidence to

establish" Ms. Tompkins' fault and underinsured status, listed on

page 12 through 2O of the Petition, are those Relator itself agreed

relate to underlying claim to establish Ms. Tompkin's fault,
underinsured status, and coverage. SeePet., Tab B; MR 168-169,

MR   212.23

       II.    The Motion to Sever and Abate

       It is telling that the entirety of Relator's petition,            which it

titles "The Motion to Sever and Abate," does not actually discuss

the motion to sever and abate or the hearing on the motion, save
of the Proposed Order, was whether the trial courÇ in ruling on the motion on
October t,20L5, overruled Relator's objections. See MRZI2; MR270-272.
2 Specifically out of Relator's list of now complained of discovery requests, the
parties agreed that Requests for Production Numbers 7, LI, L3, and 18 and
Interrogatory Numbers 5,7,9, LL, L5, and 20 relate to Ms. Tompkin's fault, fackson's
damages (and, thus, Ms. Tompkins' underinsured status), and coverage. See Pet., Tab
B; MR 270-272. Relator responded to Requests for Admission Number 14 and 18
without objection and, thus, they were not subject to the motion to compel. See id.
3
  fackson has no desire to re-litigate the motion to compel or argue that which was
agreed to by the parties. However, by way of example, Request for Production
Number 11, which asks for the discovery of insurance policies which provide
coverage, which is expressly discoverable in every suit under Texas Rule of Civil
Procedure L92.3(Ð. Likewise, Request No. L8, and Interrogatories Nos. 7 and 9 ask
for information that would substantiate any claim of pre-existing injury.
                                        1,2
for making the misrepresentation discussed above that the trial

court "did not rule" on the motion to compel until after denying

severance and abatement. See Pet. pg.      I0-2I.   The entirety of the

section   is   devoted   to the motion to compel which was filed in
August and ruled on October 1, 2OI5.

     Relator's motion to sever and abate filed with the trial court

below comprises seven pages and one exhibit. MR66-MR80. The

one exhibit attached to     it is not any "evidence" that Relator urges
this Court to consideri rather, it is a copy of one of the cases cited

in Relator's motion. MR 73-80.

     Nowhere in Relator's motion to sever and abate does Relator

argue that the    trial court was required to sever and"/or abate the
case because they had made an offer to settle the entire contract

claim in offering $20,000.00, which Jackson contends               was

undisputedly owed in UM/UIM coverage at the time         it was made.
MR 66-72. Nowhere in Relator's motion does Relator claim they

had, in fact, made any offer to settle the entire contract claim or

that the $20,000.00 offer was not for an undisputed sum.     See id.



                                    13
      The $20,000.00 offer which Jackson contends Relator should

have paid upon their determination that          it   was owed, and which

Relator has attached as MRl, was not filed as evidence with their

motion and       is not referenced or cited. MR 66-80.          Jackson's

response   to that letter demanding that the amount be paid by
Relator, MR2-MR3, was also not filed as evidence with their

motion, nor is    it referenced or cited. MR 66-80.
     Despite Mr. Balidos' assertion      in his sworn affidavit to this
Court that the attached documents which comprise                      the

mandamus record are "[t]rue and correct copies of the material

documents       filed with the trial court," the letter that      Relator

contends   it   sent to Jackson and which   it   contends evidences that

the $20,000.00 offer was for a disputed sum on the entire contract,

labeled as MR     4-5,   was never filed in the   trial court at any point
time. See Affidavit of Carlos Balido, pg. 2 (emphasis added);         ,See


Affidavit of Justin Smith, pg. 4-5.




                                    t4
        STATEMEI{T REGARDING ORAL ARGUMENT
     Jackson asks   this Court to grant oral argument in this
matter because full discussion of the case would materially aid in

this Court's decision-making process.




                                15
                   ISSUES PRESENTED


1. Is a UM/UIM carrier entitled to severance and abatement of

     an insured's extra-contractual claims when    it   does not

     meet its burden of establishing that the carrier made an

     offer to settle the entirety of a disputed contract claim or

     other compelling circumstances.




                              t6
                     II. STANDARD OF REVIEW
     "Severance     of claims under the Texas Rules of                  Civil

Procedure rest within the sound discretion of the             trial   court."

Liberty Nat. Fire Ins. Co. v. Akin, 927 S.W.2d 627, 629 (Tex.

1996). 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.2d677,683 (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. Ifuntur,865 S.W.2d 189, 193-

194 (Tex.App.-Corpus Christi 1993); see also Progressive County

MuL fns. Co. v. Parks, 865 S.W.2d 776, 778 (Tex.App.-trI               Paso

1993). "To satisfy the clear abuse          of discretion standard,      the

relator must show 'that the trial court could reasonably have

                                       t7
reached only one decision."' See id. Thus, "fflor mandamus relief to

be appropriate, the trial court must have... issueld] a decision

without basis or guiding principle in law." fn re Allstate Ins.       Co.,

2005     WL 1714640, at 'kl (Tex.App.-Texarkana May 12, 2005)
(emphasis added) citing to Johnson v. Fourth Court of Appeals,

700 S.W .2d 916, 917 (Tex. 1935).

       Further, a writ of mandamus will not issue "absent a clear

abuse of discretion that leaves the aggrieved party no adequate

remedy at law." Liberty Nat. Fire fns. Co. v. Akin, 927 S.W.2d

627, 629 (Tex. 1996). "Mandamus is intended to be                      an

extraordinary remedy, available only         in limited   circumstances."

See WaLker v. Packer,827 S.W.2d 833, 840 (Tex. 1992). "The writ

will issue only in        situations involving manifest and urgent

necessity and not for grievances that may be addressed by other

remedies." See id.

                    III. ARGUMENT & AUTHORITY
     I       Relator's Petition for Writ of Mandamus is Premature

             and   will likely   be Rendered Moot



                                      18
      Before turning to the merits of why Relator's Petition should

be denied,       it is important to note that, procedurally, this petition
is premature and will likely be rendered                  moot. The titular

contentions of Relator's petition are that "AAA has no contractual

duty to pay UIM benefits" and that "[alllowing discovery                on

Jackson's extracontractual claims before              a   determination on

Jackson's UIM claim is an abuse of discretion." SeePet. pg 22 and

25 (emphasis added). These are also the sole contentions that
Relator made below with respect to severance and abatement.

MR187-190.

      Jackson has pending now before the             trial court his Motion
for Partial Summary Judgment and No                    Evidence Summary

Judgment which,           if   granted,   will   determine Ms. Tompkin's

liability for causing the underlying wreck, the amount of Jackson's

actual liquidated damages, and thus Ms. Tompkin's underinsured

status.   ^9ee
                 Affidavit of Justin Smith, pg. 4

     In the event Jackson's Motion for Summary Judgment is
granted, there wiII be          a   determination of coverage triggering

Relator's obligation to pay under Brainard and mooting Relator's
                                        19
contention that the   trial court   abused its discretion   in permitting

discovery prior to the determination of Ms. Tompkins' liability and

underinsured status. This Court should, therefore,      lift the stay on
the underlying proceeding and deny the petition to allow the
motion for summary judgment to be decided. Alternatively, this

Court should lift the stay and withhold rendering its decision until

after the motion for summary judgment is decided. Further,
because    that course of action would expedite this proceeding and

that below, in the event that this Court lifts the stay to permit the

trial court to rule on Jackson's motion for summary            judgment,

Jackson would agree to a stay of Relator's obligation to produce

discovery regarding Jackson's extra-contractual claims        until after
the trial court's ruling on his motion for summary judgment.

     II.     The Standard for Severance and Abatement in First

             Party Insurance Cases Involving Extra-contractual
             Claims

     The Supreme Court's decision           in Liberty National Ftre
fnsurance Company v. Akin is the seminal and controlling             case

regarding the severance and abatement of insurance coverage or
                                    20
breach of contract claims from extra-contractual claims. Liberty

Nat. Fire fns. Co. v. Akin,927   S.W .2d   627,629 (Tex. 1996). There

an insured brought breach of contract and bad faith claims
against her homeowner's insurer after a denial of coverage. See id,

at 628. The insurer moved to sever the breach of contract claims
from the bad faith claims, arguing that certain              evidence

admissible for bad faith would be inadmissible on the contract

claim. See id. The insurer also sought to abate the bad faith claims

until the contract claim was finally resolved. See id. The trial
court denied the severance and abatement, which the appellate

court affirmed, and the case proceeded to the Supreme Cowrt. See

id.

        The Supreme Court stated in Akin that "insurance coverage

claims and bad faith claims are by their nature independent." See

id. at 629. While Relator's assertion that bad faith claims       can

never exist absent a preliminary determination that of coverage4

is not accurate, that is generally the case. See id. at 629. Thus, the

insurer in Akin argued exactly what Relator argued here, namely

a   SeePet.pg.23
                                  2I
that "the trial court should have required lits insured] to obtain   a

favorable finding on her contract claim before proceeding with the

bad faith claim," and that abatement should be ordered "to avoid

the effort and expense of litigating a claim that may be nullified

by a judgment for the insurer on the contract verdíct." See id. T}le

insurer also argued that   it   was entitled to severance because    it
had offered and tendered the undisputed portion of the insured's

damages. See id. at 63O

     After re-iterating that severance and abatement are matters

vested in the discretion of the   trial court, the Supreme Court held
the trial court did not abuse its discretion in denying the insurer's

motions for severance and abatement. See id. The Supreme Court

noted, however, that:

           A severance may nevertheless be necessary
           in some bad faith cases.... One example
           would be when the insurer has made a
           settlement offer on the disputed contract
           claim. As we have noted some courts have
           concluded that the insurer would be
           unfairly prejudiced by having to defend the
           contract claim at the same time and before
           the same jury that would consider evidence
           that the insurer had offered to settle the
           entire dispute. While we concur with these
                                   22
            decisions, we hasten to add that evidence of
            this sort simply does not exist in this case.
            In the absence of a settlement offer on the
            entire contract elaim, or other compelling
            circumstances, severance is not required.
Id. at 630 (emphasis  addeÐ.

     Thus, the Supreme Court maintained that "[t]raditionally,

severance has been reserved to the    trial court's discretion, where
we leave   it   today." See id. at 631. Akin is the law       in Texas
regarding severance and abatement of         first party insurance
contractuaUcoverage claims from extra-contractual claims and the

trial court here was referred to and relied upon Akin in reaching
its decision in this case. MR193-I94.

     Under Akin, there is no special rule for bad faith insurance

claims and there is but one sltuation in first party insurance

cases, whether     that is   homeowner's insurance     or     UM/UIM

insurance, that clearly requires severance. That is,     if   the trial

court is presented with euidence that established there rs           a

settlement offer on the entire and disputed portion of a contract

claim, severance would be required to avoid undue prejudice. See

id. at 630. If the trial court is not presented with evidence that

                                 23
established there is a settlement offer on the entire contract claim,

then, under Akin "severance is not required" and the trial court

does not abuse    its discretion in refusing to order a severance. See

id. Akin was decided in 1996 and this is not new law.

      The entirety of Relator's petition, unlike its motion to sever

and abate and arguments below, revolves around
contractuaVcoverage claims being severed from extra-contractual

claims when the insurer has put on evidence that a settlement

offer for the entire contract claim has been made. SeePet.   p9.22-
39. Relator, however, misconstrues the evidence, contentions, and

arguments Relator presented           to the trial court and, thus,
completely misses the point. Relator did not contend or make any

showing to the     trial court that the rule they invoke here was
applicable.

     III.     Relator Did Not Plead, Allege, Argue,       or Provide
              Evidence of   Ary Facts that Would Require Severance
              and Abatement, thus the Trial Court Could Not have

              Abused its Discretion



                                   24
      Relator, as the party moving for severance and abatement,

had the burden of establishing in the trial court that severance

and abatement of the extra'contractual claims was required. fn re

Reynolds, 369 S.W.3d 638, 652-653 (Tex.App.-Tyler 2072)

(stating that "party seeking severance has the burden to show how

it will be prejudiced if severance is not granted and to present
evidence to the    trial court, in camera if   necessary, to support its

position .) citing tu fn re   Trinity [-Iniv. fns. Co.,2003 WL 22839280,

at *2 (Tex.App.-Tyler Nov. 26, 2003, orig. proceeding) (mem. op.)

and Allstate v. fns. Co. v. I{unter, 865 S.W.zd 189, I94
(Tex.App.-Corpus Christi 1993, no writ)i see also fn re ALilstate

Texas Lloyds, 202 S.W.3d 895, 900 (Tex.App.-Corpus Christi-

Edinburg 2006) ("Rather, the burden is on the party seeking

severance to show how       it will be prejudiced if the claims are tried
together and to present the evidence to the trial court, in camera     if
necessary,   that forms the basis of its claims. In other words,
relators must      still   caruy the burden    of proof to show that
severance    is   required.")i see also   fn re Arcababa, 2OI3 WL
5890109, at *8 (Tex.App.-Waco October 31, 2013); see also Texas
                                     25
Farmers fns. Co. v. Cooper, 916 S.W.2d 698, 7OI (Tex.App.-EI

Paso 1996)   ("It is and remains the movant's burden to               show

specifrcally how   it will   be prejudiced   if   abatement is not ordered,

and to show concrete euidence of how defending against plaintiffs

contract claim clashes with defending against plaintiffs bad faith

claims.") (emphasis added).

     Relator cites this Court to the EI Paso court of appeals

opinion in fn re State Farm Mutua| Auto fnsurance Company as

authority which,     in Relator's own words, was decided "under
virtually identical circumstances," as guiding the outcome of this

matter. SeePet., pg. 32-33. Jackson agrees whole-heartedly that

the El Paso court of appeals rightly decided fn re State Farm and

that its opinion should guide this Court's determination of this
matter, just as it did the trial court's determination. MR194-195.

Jackson also agrees     that the decision in fn re State Farm is
virtually identical to this case, with one very important
distinctioni the insurer there actually argued and put on evidence

that "conclusively proved" that that they had made an offer on the

entire contract claim in presenting its motion to sever and abate.
                                    26
See   In re State Farm Mut. Autu fns. Co., 395 S.W.3d 229, 232
(Tex.App.-El Paso 2012, orig. proceeding).

      As here, the plaintiff in State Farm contended that payment

offered was not "an offer to settle the entire contract claim." See

id. at 236. Relying, as it was required to do, on Akin the El Paso

court held that "severance is required when an insurer offers to

settle the entire contract claim...." See id. at 234. Unlike Relator,

however, "State Farm asserted         in its motion and reply, and
prouided proof   to the trial court in the form of letters and
affidavits from its claims representative, that   it was offering to
settle in full each of' the insured's contract claims. See id.
(emphasis added). Thus, "State Farm met its evidentiary burden

by providing the trial court with letters and affidavits from its

claims representative that conclusively proved that State Farm

offered to settle" the entirety of the insured's contract claims "and

the resulting damages therefrom." See id. at 236 (emphasis
addeÐ. Therefore, because the     trial court was presented with
conclusive evidence that State Farm had made settlement offers


                                 27
on the entirety of the insured's contractual claims,         it   abused its

discretion in denying severance, contrary to Akin. See id.

      Similarly, in    fn ïe Reynolds there was a dispute over
whether the insurer had made an offer to settle the entirety of the

contract claims under Akin, thus mandating the severance of the

insured's contractuaVcoverage and extra-contractual claims. See

fn re Reynoldq     104 S.W.3d 354, 358-360 (Tex.App.-Houston

h4rt Dist.l 2003). There, the court of appeals held that            because

the insurer did   t:rot " conclusively   provel they offered to settle the

entire claim as required by Akin," as opposed to an offer on the

undisputed portion of the claim, the insurer failed to establish

that they \ryere entitled to    severance and abatement. See          id. at
359-360 (emphasis added).

     Here, unlike fn re State -Farm and fn re Reynolds, Relator

did not contend in its motion or any reply that        it made an offer to
settle the entire and disputed portions of Jackson's contract claim,

nor did   it offer any evidence that it had done so. MR66-MR80.
Similarly, Relator did not claim at the hearing on its motion that

they had made an offer on the entirety and disputed portions of
                                     28
Jackson's contract claim and again offere                d no evidence that it
done so. See generally, MR183-2165 While Jackson disagrees

with Relator's characterization of their                 $20,000.00 offer6, the

characterizations, arguments and so-called evidence Relator were

not presented to the trial court, could not have been considered by

the trial court, and, thus, cannot form the basis for an abuse of

discretion. See fn re ALlstate fns. Co., 232 S.W.3d 340, 342-343

(Tex.App.-Tyler        2007) .




s The  only reference Relator made to the $20,000.00 offer at the hearing on their
 motion to sever and abate is located at MR I99 of the transcript. In truth, Jackson is
 not certain what the argument is attempting to convey because it is nigh on
unintelligible, but it seems to be that, because Relator has no contractual obligation
to pay prior to their being a judicial determination of third party fault and uninsured
status, Relator's failure to tender the $20,000.00 Ís not a breach of contract.
6 Relator claims there is a "clear connotation" that the April 28,2014letter was to
settle a disputed contract claim, but itself is forced to rely on a document that was
not filed in the trial court below as extrinsic evidence that Relator disputed the
value of Mr. fackson's claims. See Pet. pg. 1-3. Relator's reliance on that extrinsic
evidence indicates that even Relator acknowledges that the April 28,2014letter is
not clear. Of course, the trial court could not have relied on that extrinsic evidence,
nor was it asked to rely on any evidence. The April 28,20L4letter also states that
the $20,000.00 sum was arrived at from a "review of the facts" and there are other
extrinsic facts which support fackson's position that Relator did not and could not
have disputed that he was entitled to at least $20,000.00 in damages, such as the
amount of his past medical damages, his future medical damages, the evidence of
other unliquidated damages, the clarity of Ms. Tompkins'fault for causing the wreck.
There also is likely other evidence, which has not yet been produced in discover¡
which evidences Relator's investigation of the claim and their determination that
fackson was covered and entitled to at least $20,000.00 at the time the offer was
made.
                                          29
         This is the situation that was presented to the Amarillo

court of appeals       in In re Farmers Texas Mutua| fnsurance
Company. See fn re Farmers Tex. Mut. fns. Co., 2OII WL 4916303

(Tex.App.-Amarillo October 17,2011). Farmers, as Relator did

here, filed     to abate all extra-contractual claims until after the
resolution of the UIM claim. See id.          at *1. Farmers, also as
Relator did here, did not raise that      it had made an offer to settle
the entire contract claim. See id. at     *I-2.   The   trial court denied
Farmers motion. See id.         at *1. After the trial court's ruling,
Farmers informed the       trial court that it had made "a settlement
offer to conclude [the insured's] entire contract claim" and asked

the trial court to enter an order memorializing its prior ruling for

appeal. See id. at    *I-2.   The Amarillo court of appeals noted that

"in a mandamus context, for a party to preserve its complaint that

the trial court failed to abate extra-contractual claims, that party

must have brought the issue to the trial court's attention...." See

id. at   *I.

               Farmers's mandamus petition alleges that
               Judge Schildknecht clearly abused her
               discretion by failing to abate Henrie's extra-
                                     30
              contractual claims after Farmers made a
              settlement offer on Henrie's entire contract
              claim. As such, Farmers has failed to
              preserve its complaint by failing to seek an
              abatement order from the trial court on the
              grounds upon which it now              seeks
              mandamus relief Consequently, we cannot
              conclude that the trial court clearly abused
              its discretion or that Farmers does not have
              an adequate remedy available at law.
              Having failed to establish its entitlement to
              mandamus relief, we deny Farmers's
              petition.
       See   id. at*2 (emphasis added).

       Relator asserts that this Court tn     fn re AIIstatu fns. Co.
"held that severance and abatement was necessary where an

insurer made an offer to settle." Pet. pg. 30. That is not the

holding of this Court tn Allstate, although the actual opinion is

instructive. In Allstate the insureds' vehicle was damaged by
                                                                    "
falling tree and they submitted a claim to their insurer, Allstate.

See   fn re AIIstatu fns.   Co., 232 S.W.3d 340, 341 (Tex.App.-Tyler

2007). Allstate had the vehicle damage appraised and tendered a

check for $867.34, which represented the undisputed damages less

the deductible. See id. The insureds obtained their own appraisal,

which reflected greater damage, and ultimately brought suit
                                    31
against Allstate . See rd. Allstate filed a motion to sever and abate

extra-contractual claims       until the breach of contract \ryas
determined. See id. The       trial court denied the motion.    See id.

Allstate then made a settlement offer on the entire contract and,

thereafter, filed a motion for reconsideration with the   trial court
premised on that settlement offer. See id. The motion was again

denied. See id.

       This Court recognized that "[i]n considering whether the
trial court abused its discretion in denying Allstate's motion to
sever and abate, our review is limited to the record as    it   existed

before the   trial court at the time of the decision." See id. at   343

(emphasis added). Citing to the Supreme Court's opinion ín Akin,

this Court also recognized that a "trial court has broad discretion

to sever a lawsuit into separate suits" and is only required to do so

"when there is a settlement offer on the disputed contract claim."

See   id. (emphasis added).

       While this Court determined that the trial court 'bould have

granted the severance," because the claims did not rely on the

same facts and were not inextricably intertwined, that alone is not
                                   32
sufficient. See id. T}:re question in whether the trial court abused

its discretion was whether it was required to order severance
because   it was presented with   evidence that Allstate had made an

offer on the entire contract claim. See id.In fact, this Court noted

that "if the settlement offer represented only the       undisputed

portion of the contract claim, the       trial court's denial of the
severance would not be an abuse of discretion." See id. (emphasis

added). Which is, of course, exactly what Jackson has contended

since day one and which Relator made no apparent attempt to

contradict. MR 66-80; MR 183-MR 216.

     There is, quite frankly, no evidence here that "conclusively

proves" that Relator made an offer for the entirety of a disputed

contract claim, as opposed to undisputed damages, and there was

certainly no evidence at all that Relator had presented or asked

the trial court to consider in conjunction with its motion to sever

and abate. Thus, consistent with the Supreme Court's opinion in

Akin, the El Paso court's opinion ín fn re State -Farm, the Houston

court's opinion ín fn re Reynold's, the Amarillo court's opinion in

In re Farmers and this Court's opinion in fn re Allstate, Relator
                                   JJ
did not meet its burden of establishing that the severance and

abatement was mandatory and, clearly, the        trial court did not
abuse its discretion by having "issueld] a decision without basis or

guiding principle      in law." In re Allstate fns. Co., 2005 WL
7114640,   at   *I   (Tex.App.-Texarkana May 12, 2005) (emphasis

added) citing to Johnson v. Fourth Court of Appeals,700 S.W.2d

916, 917 (Tex. 19S5).

     ry. Bifurcation Protects Relator from             Inadmissible

           Evidence Being Presented for Determining Third Party

           Fault and Underinsured Status

     Putting aside Relator's new arguments and              so-called

evidence regarding settlement under       Akin, the only argument
presented to the     trial court by Relator regarding severance   was

that certain evidence that would be admissible with respect to
Jackson's extra-contractual claims would be inadmissible for

determining whether Ms. Tompkins' was liable and underinsured

MR66-72. That was also a concern raised in fn re Allstate and,

as this Court noted there, even if the trial court could order

severance, its refusal to do so is not an abuse of discretion. See   fn
                                  34
re Allstate, 232 S.W.3d at 343. Relator's concern does not mandate

severance here just as   it did not mandate it in fn re Allstate.
       Akin suggested that a trial court "may address any undue
prejudice by instructing the juty that the evidence proves nothing

with regard to the coverage of the plaintiffs claim, but may be
considered relevant only to the bad faith claim." See Liberty Nat.

Fire fnc. Co. v. Akin, 927 S.W.2d 627, 630 (Tex. 1996). Judge

Brabham's order bifurcating         the   coverage claim     from the
remainder of the claims provides far more protection than the

instruction suggested in Akin. In fact, the trial court's order here

complies with even the "inflexible" application rejected by Akin.

See   id. at 632 (dissent) (requiring "segregation" of claims in all
first party cases, but maintaining a trial court's discretion to sever

or bifurcate, and prohibit abatement).

      Nonetheless, Relator asserts        that it will be   prejudiced

because Jackson intends to introduce the $20,000.00 offer           in   the

first trial, during which the jury will determine Ms. Tompkins'
liability and underinsured status. See Pet. pg. 8-9 (... Jackson is
going to make the settlement offer the focal point by arguing to
                                   35
the jury that   it represents (f) an admission by AAA he is entitled
to UIM benefits and Q) then to the same jury in the same
bifurcated trial portion that     &L\ acted in bad faith in not paying
him the per person policy limit.")(emphasis added).


      To be clear, Jackson has always intended and contemplated

that Ms. Tompkins' fault and Jackson actual damages, and thus

his entitlement to UIM benefits is to be tried solely and
exclusively in the first trial. MR194-195. Jackson does not now

nor has he ever expressed an intention to introduce the $20,000.00

sum as evidence in that first trial for any reason. As Jackson

stated at the hearing below, only "after that issue lof third party

fault and underinsured statusl is tried," would there be a
"bifurcated trial on the bad faith claims and the [second] breach of

contract claim that asserts that lfu\rYsl failure to tender the

amount that [it] determined to be owed was a breach of contract

and bad faith." MR195.7 Removing the potential concern of


7 Contrary to Relator's contention, Jackson's bad faith claims are not
premised on the sufficiency or adequacy of the $20,000.00 sum, such that
Jackson will be contending that "AAA acted in bad faith in not paying him
the per person limit." Pet. pg. 9.
                                     36
presenting evidence supporting both of these latter claims, which

arise from the same facts and involve the exact same issues,

during the first stage of the trial is exactly why Jackson proposed

and Judge Brabham ordered the bifurcation of this trial. See id.

Relator did not make any showing below, and does not make any

showing here, how the second breach of contract claim, asserting

that Relator's failure to tender the $20,000.00 offer upon Jackson's

request, and his remaining extra-contractual claims, asserting

that Relator's failure to tender the $20,000.00 which Jackson
contends and believes Relator determined to be owed following its

investigation of the claim, that "the extra-contractual claims are

not so interwoven with the contract action that they involve the

same facts and issues," such that severance of those two claims

would be proper. See MR 69.

     Thus, in ordering bifurcation, evidence that is inadmissible

with respect to Jackson's claims to determine    coverage remains

inadmissible and there is no prejudice to Relator      in how this
matter will be tried.


                                37
     V. The Trial Court Did Not Abuse its Discretion in
            Denying Abatement

     A party cannot be entitled to an abatement if it is not
entitled to a severance that would make abatement possible. As

demonstrated above, Relator completely failed        to establish its
entitlement to a severance and, thus, is also not entitled to an

abatement. However, even            if Relator had    established its

entitlement to severance, this Court has specifically rejected        a

mandatory rule requiring abatement even where severance would

be required because the       trial court was presented with evidence
that the insurer offered to settle the entire contract claim, which

was not the case here. See fn re Allstate fns. Co., 232 S.W.3d 340,

344 (Tex.App-Tyler 2007) ("We recognize that a number of our

sister courts hold that abatement is mandatory when a trial court

orders severance of extracontractual claims from contractual

claims," however, "we have avoided creating a bright line rule

requiring abatement under these circumstances.")

     This Court reached this result because "a trial court should

schedule   its   cases   in such a manner as to expeditiously   resolve
                                    38
them," and that to promote carrying out this task, the "trial court

is given broad discretion in managing its docket" which "we will

not interfere with the exercise of... absent a showing of clear
abuse." See id. Despite this Court's clear language in Allstate to

the contràyy, Relator cites to that opinion for the proposition that

this Court "held that severance and abatement is necessary where

an insurer made an offer to settle," a claim which is, as discussed

above, not accurate with respect to either severance or abatement.

SeePet. at pg. 30.

     While this Court did ultimately find that abatement was

required   1n   Allstate,   ít   rejected   the notion that   avoiding

potentially unnecessary discovery was sufficient by itself to

establish the necessity for abatement and relied on two additional

factors, the first being the insurer's showing that   it would have to
disclose privileged and protected information and, second, the fact

that the insured's did not dispute that, if severance was ordered,

abatement should be granted. See fn re Allstate         fns. Co., 232
S.W.3d 340, 344-345 (Tex.App.-Tyler 2007). This latter factor,


                                    39
of course, is conspicuously missing from Relator's block quote of

the opinion in fn re Allstate. See id. at pg. 30 (emphasis added).

      Unlike fn re Allstate, none of the factors that led this Court

to hold that abatement was required are present here. As an
initial matter, Relator offered no evidence in the trial court that
the $20,000.00 offer was for the entirety of a disputed contract

claim, thereby establishing the necessity of a severance. See infra

$IandII
     Second,    an adverse determination on coverage will            not

negate the remainder of Jackson's claims and, thus,           will not
render discovery of Jackson's extra-contractual claims and second

breach of contract claim unnecessary. As noted above,        it is not
universally true     that   extra-contractual claims require on

determination of coverage. The only case Relator cites for the

proposition is the Southern District of Texas' 20Og opinion   in Weir
v. Twin City Fire fns. Co. See Pet., pg. 26. Wief however,        rwas


rejected by the none other than the Southern District of Texas in

2013 because   it is not the law in Texas or even in the Fifth Circuit
when applying Texas law in UM/UIM bad faith cases. See Accardo
                                  40
v. America First Llotrds fns. Co., 2OI2 WL 1576022, at           *4-5
(S.D.Tex. 2013) reþing on Ifamburger v. State Farm Mut. Auto.

fns. Co.,361 F.3d 875,880   (5th Cir. 200¿). The duty of good     faith

and fair dealing, which is imposed on all first party insurers in

Texas, does not focus on whether the claim   is valid, but whether
the insurer acted reasonablyrn the handling of the claim. Aleman

v. Zenith fns. Co.,343 S.W.3d 817, 822 (Tex.App.-El Paso 2OII,

no pet.) citing to Republic fns. Co. v. Stoker, 903 S.W.zd 338, 340

(Tex.   1995). Thus, there are occasions where          the   insurer's

investigation reveals such evidence of the motorist's fault and

their own insured's damages where "the judicial determination
that triggers the insurer's obligation to pay is no more than        a

mere formality." See id. at *5. "fn such cases, an insurer may act

in bad faith by delaying payment and insisting that the insured
Iitigate liability and damages before paying benefits on a claim."

See Accardo v. America   First Lloyds fns. Co., 2O72 WL 1576022,

at *4-5 (S.D.Tex. 2013) reþing on Hamburger v. State Farm
Mut. Auto. fns. Co.,361 F.3d 875,880 (5th Cir. 2004).


                                4t
      Jackson believes that this is just such a case, as evidenced

by his motion for summary judgment. Further, Jackson's claim

that AAA's failure to tender the       $20,000.00 offer amounts   to   a

breach of contract is independent of any judicial determination of

coverage. While Relator apparently would         like to contest the
validity of that claim, arguing their interpretation of the offer and

whether there was        a   rejection and counter-offer based on

purported evidence that is not even in the record below, the truth

is that this is not an appeal from a motion for summary judgment

where the merits of Jackson's claims are         at issue. Jackson's
breach of contract claim is a live claim that is not contingent on a

judicial determination of coverage and discovery of that claim is

not contingent on a judicial determination of coverage.

     The first additional factor cited ín     fn re AIIstaúe was the
insurer's showing that   it would be required to disclose privileged
information   if the extra-contractual   claims were not abated. See

fn re Alhstate fns. Co.,232 S.W.3d 340, 344-345 (Tex.App.-Tyler

2007). Relator has not, however, been ordered        to produce any
privile ged information for any claim.
                                  42
      In   fact, Jackson has been attempting        to discover what
information Relator even contends is privileged since sending his

request for a privilege log on July 15, 2015. Jackson presumes

Relator's response to this     will be that the agreed order did not
compel them to produce a privilege log on the extra-contractual

discovery   until after the proceeding below was stayed by this
Court.

     That, however, does not excuse or explain their failure to

produce a privilege log within fifteen (fS) of the July 15, 2015

request, as required by Texas Rule of Civil Procedure 193.3, or

prior to the hearing on Jackson's motion to compel almost eighty

(gO) days   later where Relator's objections and assertions of
privilege were set for hearing and Relator was obliged to prove the

applicability of its asserted privileges. See Jordan v. Court of

Appeals, 7OI S.W.zd 644, 648-49 (Tex. 1985) ("The burden of

proof to establish the existence of a privilege rests on the one

asserting it.")i see also   fn re Park Cities Bank, 409 S.W.3d 859,
868-69 (Tex.App.-Tyler 2013). Nor        does   it explain why Relator
did not offer any privilege log or any other evidence that supports
                                   43
its claim that some privileged material wiII be disclosed and
thereby cause prejudice     in an attempt to meet its burden in
moving for severance and abatement. MR 66-MR80

     A party is not permitted to simply refuse to comply with its

obligation to produce a privilege log under Rule 193.3, or its

obligation to establish the applicability of its privileges under the

jurisprudence of the Texas Supreme Court and this judicial

district, or its obligation to meet its burden of proof in establishing

its entitlement to severance and abatement, and then claim in
seeking a mandamus that a trial judge, whose rulings have been

reasoned and fair, has abused his discretion by not finding some

amorphous prejudice which the party has refused at every single

step in the proceeding to identify or substantiate. See Allstate fns.

Co. v. Ifuntur, 865 S.W.2d 189, 794 (Tex.App.-Corpus Christi

1993) (noting that the insurer failed to carry its burden of proof   in

requesting abatement where        it   provided "nothing more than

generalized allegations of prejudice" and "no evidence to the     trial
court, in open court or for in camera review, of specific settlement

offers or the nature or contents of the allegedly privileged matters,
                                  44
so   that the trial court could determine their prejudicial/beneficial
potential.")

       Which brings us to the second of the two additional factors

this Court cited in fn re AIIstaúe, specifically the insured's       non-

opposition       to abatement, which is      conveniently omitted from

consideration when Relator quotes the Allstate opinion              in   its

petition.   It   should be clear, based on the above and the transcript

from below, that Jackson is staunchly opposed to abatement in

this case. Since the filing of this suit, Relator has made every
attempt to unnecessarily delay the litigation of this matter and

this Court need only look at the facts and the actual record of
what has been filed, what has been said, and what has been done

in this   case    to understand exactly what game Relator is playing

here. Abatement is just one more means of delay and           if permitted
poses a substantial risk of prejudice to Jackson.

       As the El Paso court of appeals wrote in upholding a trial

court's denial of a UM/UIM insurer's request for abatement:

                 [I]f discovery in the extracontractual case is
                 stayed until the uninsured motorist claim is
                 final, years may pass. Witnesses may die or
                                      45
            disappear, files may be lost, and memories
            will undoubtedly fade. Rather than
            minimizing pretrial efforts, abatement may
            require that discovery be conducted twice,
            as the carrier may successfully argue it
            initially prepared for trial only on [the
            insured'sl contractual claim, not his
            extracontractual causes. Moreover, it is
            possible that the entire lawsuit, contractual
            and extracontractual, is subject to
            disposition before trial.... [And n]umerous
            pretrial rulings may effect both contractual
            and extracontractual claims.

      See Texas -Farmers Ins. Co. v. Cooper,916 S.W.2d 698,702

(Tex.App.-El Paso 1996).

      VI.   Relator Has Failed to Establish that      it has No Clear
            and Adequate Remedy by            Appeal tn     Failing to
            Establish that the Trial Court Abused its Discretion or

            in That it Wiil Lose Substantial Rights By Being
            Required to Conduct Discovery on Jackson's Claims

      As noted above, an "abuse of discretion occurs only when the

trial court's   decision was without reference to guiding principles."

See Texas Farmers fns. Co. v. Cooper,916 S.W.2d 698, 702-703

(Tex.App.-Et Paso 1996). It is clear from a review of the record in

this case that the trial court here did not abuse its discretion and
                                   46
relied on the guiding principles cited             in the briefing and
arguments below, including the Texas Supreme Court's opinion in

Akin and the El Paso Court of Appeals opinion in fn re State
Farm. The simple matter of           it that, despite its protestations,
contentions and the purported evidence offered here, Relator

placed none of it in front of the    trial court below and, thus, simply
failed to meet its burden under existing case law.

     Relator goes on, however, to claim that         it has no adequate
remedy by appeal for one reason onlyi that         it will be required    to

engage in discovery on Jackson's remaining claims. This is exactly

the same argument Relator espouses with respect to abatement

and which this Court has held is insufficient to establish an abuse

of discretion regarding abatement. See fn re Allstate fns. Co., 232

S.W.3d 340, 343 (Tex.App.-Tyler 2OO7). Since that basis is

insufficient   to   establish   an   abuse   of   discretion,   it is   also

insufficient to establish an inadequate remedy on appe al. See id.

Jackson incorporates herein by reference Section          IV, supra,    }rís

arguments as to why Relator's claim that           it will be required to
engage   in discovery that might be unnecessary       does not establish
                                     47
an inadequate remedy       by        appeal and, thus, establish an

entitlement to mandamus relief.

     VII. Relator's Request to Vacate the November 6, 2015
           Order on Jackson's Motion to Compel is Improper

     The Prayer of Relator's Petition asks this Court 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." See Pet., pg.         4I.   Jackson

presumes that the order referenced          is the agreed order which
Relator requested the trial court sign, after the trial court signed

Jackson's proposed order, both of which memorialized the            trial
court's prior ruling on the motion to compel at the October I,2OI5

hearing.

     Jackson cannot find any briefing           in the Petition where
Relator has made     a showing that the trial court abused            its

discretion in its ruling on Jackson's motion to compel and that     it is
entitled to the vacation of the agreed order, or the proposed order,

or the trial court's October   I,   2015 ruling. Relator did not contest

that it was required to respond to aII of the discovery propounded
                                     48
upon   it. MR176-I77.     The only question was one of timing.

MR176-177. The         trial court's    October   I,2015 ruling and
subsequent orders are expressly tailored to work       in conjunction
with any subsequent severance, abatement or bifurcation. MR
176-MR 177. Relator's attempt to vacate that order, which does
not compel them to respond if severance and abatement were
required, can only be an attempt to force Jackson to re-litigate

discovery disputes    that have already been briefed, argued     and

decided by the   trial court, to   cause yet another delay and the

unnecessary expense of time and effort by Jackson's counsel and,

thus, is improper.

                     V. CONCLUSION & PRAYER
     Jackson has, since the inception of this suit, sought to

accommodate Relator. Jackson's efforts are maligned by Relator

here, accusing him of engaging      in "procedural machinations," of
being "delusional," and misrepresenting his conduct and his

statements below. See Mtn for Emergency Relief, pg. 4; see Pet.,

pg.9-11.


                                   49
          Far more important, however, is that the trial court provided

Relator with ample opportunities to offer its evidence and meet its

burdens. On October 1, 2015, the          trial court did not overrule
Relator's claims of privilege for its failure to comply with Rule

193.3 or offer any evidence to substantiate      its claims of privilege,

as   it   was well within its rights to do. Nor did the   trial court order

that Relator respond to extra-contractual discovery prior to being

afforded forty-five (¿S) days to submit its motion for severance and

abatement, along        with any and all     evidence Relator deemed

material and appropriate to meet its burden. Relator does the trial

court's efforts here grave disservice by claiming that      it did not rule
on Jackson's motion to compel until November 6, 2015, and thus

claiming prejudice because the court "retroactively" ruled on the

motion giving them ten days to respond, despite the Relator's own

acknowledgments that         its claims are not truei by claiming that
the trial court ordered them to produce discovery that "clearly"

goes beyond the scope of discovery, even though the requests are

those that Relator itself agreed are discoverable in the underlying

claimi and, not least of all, by claiming and implying that the
                                     50
arguments Relator makes here and the evidence it submits are

those which   it   presented to the    trial court below in conjunction
with its motion to sever and abate, when its arguments here are

largely new and not one piece of evidence was offered by Relator to

meet   its burden. Relator failed to meet its burden and the
necessary result was and is the denial of      its motion to sever and
abate. That the    trial court did, as it was entitled to do under the
Texas Supreme Court's opinion rn Liberty Nat. Fire fns. Co.          v.


Akin, and its progeny. The trial court, in following that guidance,

did not abuse its discretion.

     Therefore, Real       Party in Interest Thomas            Jackson

respectfully requests that this Court deny Relator's Petition for

Writ of Mandamus, lift the stay on the proceeding below, and for
any and all other relief to which he may be entitled or which the

Court deems proper.




                                  51
     Respectfully submitted,

     Sloan, Bagley, Hatcher & Perry Law
     Firm
     101 East Whaley Street
     P.O. Drawer 29Og
     Longview, Texas 75606
     Telephone: 903-757-7000
     Telecopier: 903'7 57 -7 57 4



By   /s/ Justin A.
     GLENN A. PERRY
     Texas Bar No. 15801500
     E' mail: gap@sloanfirm.com
     JUSTIN A. SMITH
     Texas Bar No. 24068415
     E - mail: j smith@sloanfirm. com


     ATTORNEYS FOR REAL PARTY IN
     II{TEREST _ THOI\{AS JACI(SON




         52
                   CERTIFICATE OF SERVICE
I hereby certify that pursuant to Rule 9.5, Texas Rules of
Appellate Procedure, that a true and correct copy of the foregoing
brief \ryas served upon the following counsel electronically, through
the electronic filing manager, and via certified mail, return receipt
requested, on this the 2"d day of December, 2015:

     Gregory R. Ave
     Jay R. Harris
     W'alters, Balido & Crain, LLP
     Meadow Park Tower, Suite 1500
     IO440 North Central Expressway
     Dallas, Texas 7523L
     Appellate Counsel for Relator

     Carlos Balido
     Walters, Balido & Crain, LLP
     Meadow Park Tower, Suite 1500
     IO44O North Central Expressway
     Dallas, Texas 75231
     Trial Counsel for Relator:

     The Honorable Judge David Brabham
     Judge of the 188th Judicial District
     Court of Gregg County, Texas
     Gregg County Courthouse
     101 E. Methvin St., Suite 408
     Longview, Texas 75601

                       By:   /s/ Justin A. Smith
                             GLENN A. PERRY
                             Texas Bar No. 15801500
                             E-mail: gap@sloanfirm.com
                             JUSTIN A. SMITH
                             Texas Bar No. 24068415
                             E' mail: j smith@sloanfirm. com




                                  53
               CERTIFICATE OF COMPLIA}ICE
    Pursuant to Texas Rule of Appellate Procedure g.¿(ixg), the
undersigned certified that this petition complies with the type-
volume limitations    of Texas Rule of Appellate Procedure
9.4(f)(ù(B). Exclusive of the exempt portions identified by Texas
RuIe of Appellate Procedure 9.4(Ð(1), this response contains 9.647
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, 14-
point text, and in Century font, using the computer program
known as Microsoft Word QOLZ version).

     Acknowledged: December 2, 2Ol5

                     By '- /s/ Justin A. Smith
                           JUSTIN A. SMITH




                               54
   TABLE OF CONTENTS TO REAL PARTY IN INTEREST'S
                    APPENDIX
              Description                 Tab       MR No.

Affidavit of Justin Smith                  1
Reporter's Record - Transcript of          2    MR139 - MR182
October I, 2OI5 Hearing
Reporter's Record - Transcript of          3    MR 183 - MR 216
November 6, 2075 Hearing
Plaintiffs Original Petition with          4    MR 217   - MR 226
Exhibit A - B
Defendant's Orisinal Answer                5    MR 227   - MR 228
Plaintiffs First Amended Petition          6    MR 229   - MR 235
Plaintiffs Motion to Compel Discovery      7    MR 236   - MR 245
withExhibitsA-D
Notice of Hearing on Plaintiff s Motion    8    MR 246
to Compel
Plaintiffs Response to Defendant's         I    MR 247   - MR 269
Emergency Motion to Reset Hearing
with Exhibit A 'C
Plaintiffs Proposed Order on Plaintiffs   10    MR 270 - MR 271
Motion to Compel




                                55
APPENDIX TAB   1
                                     AFFIDAVIT OF JUSTIN SMITH

STATE OF TEXAS                      s
                                    s
COUNTY OF GREGG                     s

         Before me, the undersigned notary, on this day personally appeared Justin Smith, the

affrant, a person whose identity is known to me. After           I   administered an oath to affrant, he

testif,red:

         My name is Justin Smith. I am over the age of 18 years of age, of sound mind, and

capable       of making this affidavit. The facts stated in this affidavit are within my personal
knowledge and are true and correct.

         I am an attorney licensed to practice law in the State of Texas and admitted to practice in

the Fifth Circuit United States Court of Appeals, the United States District Courts for the

Northern, Eastern and Southern Districts of the State of Texas, and the United States Court           of
Federal Claims. I and my firm are the attorneys of record for Thomas Jackson in Cause Number

2014-1365-4, styled Thomas Jacl<son v. AAA Texas County Mutual Insurance Company,

pending in the 188th District Court for Gregg County, Texas. As part of my representation of Mr.

Jackson,      I   have been personally involved in the preparation of motions and other filings in the

underlying matter, have attended the hearings in this matter, and have reviewed the file.

         Attached to my affrdavit, and incorporated into the brief and appendix of Mr. Jackson's

response      to AAA Texas County Mutual Insurance Company's Petition for Writ of Mandamus,

are true and correct copies of documents relating to the underlying suit. Appendix Tab 2 is a true

and correct copy of the Reporter's Record transcribing the hearing on Mr. Jackson's motion to

compel discovery in the underlying suit and that took place on October 1,2015. The transcript

identified as Appendix Tab 2 and marked as Mandamus Record ("MR") 139-182 was prepared
and provided to my off,rce by the official court reporter for the 188th District Court          of Gregg

County, Texas, and was ordered by me to complete the record. The reporter's certification of the

transcript is located at MR 182. Similarly, identified as Appendix Tab 3, MR 183-MR 216,is a

true and correct copy of the Reporter's Record transcribing the hearing on AAA Texas County

Mutual Insurance Company's ("AAA") motion to sever and abate and special exceptions in the

underlying cause and which took place on November 6, 2015. The transcript identified                    as

Appendix Tab 3 and MR 183-MR 216 was ordered by my offrce to complete the record and

was prepared and provided to me by the official court reporter for the 188th District Court            of
Gregg County, Texas, whose certification is located at MR 216.

         Appendix Tab 4, MR 217-MR226, is a true and correct file marked copy of Thomas

Jackson's Original Petition, along with Exhibits       A and B, filed in the underlying   cause. Exhibit

A to Mr. Jackson's Original Petition is a letter sent by AAA to my f,rrm on April 28, 2014, which

appears as    MR   1, attached to   Mr. Balido's affidavit filed in conjunction with AAA's Petition for

Writ of Mandamus. Exhibit B to Mr. Jackson's Original Petition is a letter sent by my firm to

A,rd{ on May 2,2014, which appears as MR            2-MR   3, attached to Mr. Balido's aff,rdavit filed in

conjunction with AAA's Petition for V/rit           of Mandamus. Exhibit A and Exhibit B to Mr.
Jackson's Original Petition, App. Tab         4   and marked   MR 224-lr4P. 226, are true and correct

copies   of   these letters f,rled with below and reflect the only       filing of these letters in   the

underlying matter. The letters marked as MR 1 and MR            2-MR   3 are not true and correct copies

of the letters filed with the trial court, as evidenced by the absence of the marking of the exhibits

which accompanied their filing with the Original Petition. Marked as App. Tab 5, MR 227-MR

228 is a true and correct copy of Defendant, AAA's, Original Answer filed in the underlying
matter. Marked as App. Tab 6, MR       229-MR 235 is a true       and correct copy of Mr. Jackson's

First Amended Petition in the underlying matter.

          Marked as App. Tab 7, MR    236-MR 245 is a true and correct copy of Mr. Jackson's

Motion to Compel, filed on January 16, 2015, along with true and correct copies of the

agreements entered pursuant to Texas Rule of    Civil Procedure   1   1   in which Mr. Jackson extended

AAA's deadline to respond to discovery, marked     as   Exhibit A through Exhibit D and filed with

Mr. Jackson's Motion to Compel on January 16,2015. Marked             as   App. Tab 8, MP.246, is a true

and correct copy of Mr. Jackson's Notice of Hearing on Plaintifls Motion to Compel, filed in

the underlying matter.

         Marked as App, Tab 9, MR 247-}i4Pt 269, is a true and correct copy of Mr. Jackson's

Response to Defendant    AAA's Emergency Motion to       Reset the Hearing on        Plaintiff   s   Motion to

Compel, filed in the underlying matter on October 1,2015, along with a true and correct copy                of
the letter sent by my office on July 15,2015 to AAA's counsel seeking to meet and confer on

discovery and requesting a privilege log and enclosing a copy of the motion to compel, filed as

Exhibit A, a true and correct copy of the Notice of Hearing for the motion to compel file

September 10,2015 and the fax confirmation sheet confirming service on AAA's counsel, filed

as   Exhibit B, and the letters prepared pursuant to Rule 11 extending discovery, hled as Exhibit

C.

         Marked as App. Tab 10, MR 270-MR 27I, is a true and correct copy of Plaintiff                       s


Proposed Order on his Motion to Compel discovery, which was filed by            -y   office on October 6,

2015, and signed by the trial court on October 26,2015. Prior to the filing of Plaintifls Proposed

Order, App. Tab 10, on October 6,2015,I prepared a draft agreed order on the motion to compel

and sent it, via email, to Nancy Raine, an attorney with Walters, Balido and Craine and counsel
of record for AAA in the underlying cause. Ms. Raine sent to me a copy of her proposed changes

to the draft via email on October 5, 2015, following which Ms. Raine and I had telephone

conference to discuss the order memorializing the trial court's ruling at the October         I, 2015
hearing. During that conference, Ms. Raine and    I   discussed and reached an agreement regarding

which discovery requests related to which category of claims. Specifically, the parties reached an

agreement as    to which requests would be within the scope of discovery with respect to           the

underlying wreck, third party fault, underinsured status, and coverage, and which requests would

only be within the scope of discovery for the remaining and extra-contractual claims. The only

disagreement Ms. Raine and I had at the completion of our conference on October 5 or October

6,2015 was whether the trial court had ovemrled AAA's objections to Mr. Jackson's discovery.

Consequently,   I filed the Proposed Order, marked as App. Tab 10, which        reflected the parties'

agreement with respect to the scope     of discovery and the nature of the claims to which the
requests related and which overruled   AAA's objections consistent with the trial court's October

1,2015 ruling on the motion.

       On November 13, 2015, Mr. Jackson filed his Motion for Partial Summary Judgment, on

the grounds that there is no genuine issue of material fact that Ms. Tompkin's was negligent, that

her negligence caused the wreck which forms the basis of the underlying suit, that there is no

genuine issue of material fact that the wreck proximately caused Mr. Jackson to pay or incur

547,I31.05 in liquidated past medical expenses. Mr. Jackson's motion for summary judgment

also seeks, on the basis of the aforementioned findings, a declaration of Ms. Tompkin's liability

and underinsured status, given her minimum limits automotive     liability policy.

       Filed in conjunction with AAA's Petition for Writ of Mandamus is an affidavit by Mr.

Balido, attaching documents which he attests are "[t]rue and correct copies of the material
documents filed with the trial court and which are central to the issues...." Attached to Mr.

Balido's affrdavit is a document marked MR        4-MR    5 which was not filed in the underlying

cause during my representation of    Mr. Jackson. Further, the document marked        as   MR   4-MR       5


and attached to Mr. Balidos' affrdavit: (1) is not stamped or marked as having been filed with the

trial court in the underlying matter; (2) is not attached to another document which was filed with

the trial court in the underlying matter; and (3) not stamped or marked as an exhibit or

attachment to any other document which was filed with the trial court in the underlying matter.

       After seeing Mr. Balido's affidavit and the document attached thereto as MR          4-MR         5, I

again reviewed the documents filed         in the underlying matter, including each exhibits and
attachment   to those filings, beginning with the Original Petition filed on July 16, 2015 and

ending with notice of this proceeding, filed on Novemb er    17   , 2015, in order to confirm that MR

4-MR    5 had not been filed in the underlying action at any point in time.      I   also reviewed the

Register of Actions maintained by Gregg County, Texas and which reflects the filings, hearings,

and orders for the underlying cause. In my accounting and review of the documents that have

been filed   in the trial court below, I could not locate the                         to Mr. Balido's

affrdavit as MR   4-MR    5.


       FURTHER, THE AFFIANT SAYETH NOT




       SWORN TO AND SUBSCRIBED                                        A. SMITH on               ber 2,
2015

                                                                       \

                                                      Notary Public in and for
                                    2019
                                                      the State of Texas
APPENDIX TAB 2
                                                                            1




     1                           REPORTER'S RECORD
                               VOI,TMElOF]-VOLUMES
     2                   TRTAL COURT CAUSE NO. 2OL4-1365-A
     3   THOMAS \TACKSON                    IN   THE DISTRICT COURT
     4   \¡S                               GREGG COUMTY, TEXAS

     5   AAA TEXAS COUNTY MUTruAII
         rNST'RANCE COMPANY               188TH iTUDICIAL DISTRICT
     6

 7

 I
 9

10

11                         PIJAfNTIFF I S MOTION TO COMPEL
L2

13

I4
15

L6              the 1st day of OcEober, 2015, Ehe following
               On
L7       proceedings came on to be held in the above-titled      and
18       numbered cause before the Honorable David Brabham, ifudge
19       Presiding, held in Longview, Gregg County, Texas.
20             Proceedings reported by computerized stenotl4pe
2L       machíne.
22

23

24

25

                       GREI,N\T FREEMAN, TEXAS CSR 8179
                             1-88TH DISTRTCT COURT
                          101 E. METITVTN, SUITE 408
                     LONGVIEI^I, TEXAS 7560L 903.237 .2688


                                                               MR     I39
                                                                             2




      1                                           ÀPPEÀR.LIICES

      2   MR. iTSTTN SMITH
          sBoT NO. 240684L5
      3   ST,OA\I, BAGIJEY, ITATCHER          E   PERRY LAü¡ FIRM
          1-01 EasÈ l{ha1ey Street
     4    Longview, Texas 75601
          Telephone: 9o3.7s7.2000
     5

     6          REPRESENTING THE PL.A,INTIFF

     7

     I
     9    MS. NA}ICY R,ATNE
          sBoT NO. 00786183
r_0       ï/ùAJ,TERS, BAITIDO 6c CRAIN, L. L. P
          Meadow Park Tovrer, Suite 1500
11        1-0440 North Central Expresshray
          Da11as, Texas 75231-
L2        Telephone: 2t4 .'149 .4805
13

l4              REPRESENTING THE DEFENDANT

15

15

L7

t_8

T9

20

2L                                           REPORTERIS NOTE

22                    Uh-huh = yes - Affirmative response
                        Huh-uh = No - Negative response
23        QuotatÍon marks are used for clarity and do not necessarily
                            indicate a direct quote.
24

25

                         GRELY-IÍ FREE}I.AÀI, TEXAS CSR 8179
                              188TH DTSTRTCT COURT
                             1O]-       E.METITVIN, SUITE 408
                      IJONGVIEVìI   ,   TEXAS 75501 903.237.2688


                                                                    MR I4O
                                                                                   3




     1                                  CHRONOIJOGICÀL TNDEX

     2                                           VOIJUME 1

     3                           PIJAINTIFF I S MOTION TO COMPEL
     4   OcEober 1-, 2 015
     5                                                         PAGE     vor.
     6   PIJAINTIFF'S MOTION TO           COMPET,

     7   Mr. Smith.                                                 4   l_


     I   DEFENDAÀIT I S MOTION FOR CONTINUAIVCE

  9      Ms. Raíne                                                15    1

L0       Mr- Smith                                                18    1

1L       Court's ruling....                                     "25     1

L2       PIJAINTTFF   I   S MOTION TO    COMPEI,

1"3      Ms. Raine                                                25    1

T4       Mr. Smith-...                                         . .33    L

15       Ms. Raine                                             - -3'l   1

16       Court's ruling.                                         40     I
L7       Reporter's certifícaEe.           ...                   44     I
18

L9

20

2L

22

23

24

25

                                             TEXAS CSR 8179
                            GREIJY-AT FREEIT,IATI,
                                 1-88TH DISTRICT COT]R?
                              101 E. METIIVIN, SUITE 408
                          LONGVIEW, TEXAS 75501_ 903.237 -2688


                                                                        MR   I4I
                                                                           4




     1                         PROCEEDINGS
     2                            october 1,   20L5
     3                    (Opencourt, parties present)
     4                  THE COURT: All right.    This is a civil case.
     5    rhis ís 2or4-L365-4. This case is styled Thomas ilackson
     6   versus AAA Texas County Mutual Insurance Company. The
     7   matter before the court is a plaintiff's vIoÈion to compel.
     I   'Justin Smith ís present representing the plaintíf f .
     9                   Counsel, would you identify who you are,
1_0      please?
11                                           Honor. My name Nancy
                        MS. R.AIÀIE; Yes, Your
L2       Raine. My last name is R-A-I-N-E, and I represent the
13       Defendant, AAA Texas.
I4                      THE COURT:    All rÍght.      Ms. Nancy Raine Ís
15       presenE for the Defendant.
16                      BoEh   sides ready on the matter before the
17       Court?
18                      MR. SMITH:    Yes, Your Honor.
19                      MS. RÂIIVE': Yes, Your Honor.
20                      THE COURT:   Okay. Mr. Smith, it's your
2L       motion. You may proceed aE thís time.
22                       MR. SMITH: Yes, Your Honor. ,fust kind of by
23       way of preview to begin with. IE is my motion, but on
24       motions to compel, the law is r don't have the burden of
25       proof t,o prove that the objections are improper. The burden
                      GREI,N\T FREEMAN, TEXAS CSR 8L79
                           188TH DISTRICT COIJRT
                        t_01 E. METITVIN, SUITE 408
                    LONGVIEW, TEXAS 75601 903. 237 .2688


                                                                v,R 142
                                                                                5




      1    is on the Defendant to prove that Èheir objections are
      2    proper.
      3                          this case ínvolves it's a UM/UIM
                             No!ù,
      4     case. Mr. Jackson was leaving work at a church and driving
      5     down Pliler Precise Road on June L2E]n, 20L3. He was driving
     6     behind anoÈher vehicle, and they came up Eo the Íntersection
     7     of P1írer Precise Road and iludson Road and. there,s a traffic
     I     stoplight there.
     9                      The vehicle ín front of Mr. ilackson, and
10         Mr- ,fackson. stopped at the red right. The light turned
1_   l_    green, the car in front of him went- Mr. ,Jackson proceeded
L2         into the intersection on a green 1íght. And a woman,
13         Patrícj-a Tompkíns, who was drívíng north on ,Judson
L4         approaching that red light, blew through the red light and
15         T-boned Mr. ilackson  -


L6                         He wound up in the ambulance and taken to Ehe
L7        hospital. And he had lost, consciousness, \das d.isoríented,
1_8       largely due to, r guess, the adrenaline causíng his blood
19        sugar Eo drop, given hís diabetes. And he proceeded a
20        course of treatment.
2L                         In Ehe tíme sínce the wreck, Mr. ilackson has
22        i-ncurred approximatery 94T,o0o in past medical expenses.
23        And we have some letÈers that have been exchanged ín
24        discovery in this case regarding his necessary future
25        medical care.
                          GREI,YN FREEMAN, TE)GS CSR 8L79
                               188TH DISTRICT   COURT
                             101 E. METITVIN, SUITE 408
                     ïJONGVfEI^I, TEX.â,S   75601   903. 237 .2688

                                                                     MR   I43
                                                                       6




     1                   Mr. ilackson filed a claim with his own
     2   Ínsurance company f.or the PIP benefits, and that was paid,
     3   $5,000. He filed a claím against patricia Tompkins'
     4   insurance company. She had a mínimum policy, g3O,OO0 limits
     5   polícy. Ari.d on consent of his U{/UIM carrier, patrÍcia
     6   Tompkins' insurer tendered the entirety of their undertyíng
 7       insurance policy.       Mr. ,Jackson, pursuant Èo his policy,
                              Then
 8       filed a claim on hís uM/UIM for the remaÍnder of his
 9       damages.

10                      And    this case is a littte bit unusual in
11        that      from the bad faith cases that are cíted in
L2       Defendant's motion or their response to our Motion to
13       Compel. lrlhen Mr. Jackson presented his claim, the insurance
L4       company, Iíke the insurance company has a requírement to do,
15       began íts investigatíon and made a determination as to
16       damages and offered him $20,000. And Mr. ilackson's response
L7       \¡vas, " I think my damages are more than that, but if this is
18       the undispuÈed sum of my injury, tender Ehe undispuled sum
L9       Eo me and then we'11 go about titigating the remainder.I
20       His ÌIM/UIM carrier refused and wouldn't tender any parÈial
2L       palzment absent a full and complete release of the entirety
22       of his claims. This lítigatÍon ensued.
23                         On October, I belíeve. the 1-6th of 20L4, we
24       served our interrogatories, our request for admissions and
25       our requesÈ for productíon on the Defendant. Their
                      GREIJW FREEMAIV, TE)(AS CSR 8179
                            188TH DISTRICT COURT
                         l-01 E. METlrVrN, SUrTE 408
                    LONGVTEW, TEXAS 75601 903.237 .2688


                                                           MR   I44
                                                                                        7




     1    responses l^tere due on Novernber 1-6th of 20L4.           On

     2                  of z0r4 we gave them an extension of t.ime to
          November L7tr}:
     3    respond to discovery and didn't push a waiver of their
     4    objectíons.     IrIe   did it again and again and again.         We

     5   ultimately gave them four extensions on theír d,eadline to
     6   respond to and object to our discovery. Irfe ultimately got
     7   that discovery on December 23rd, 20L4, and it's sorely
     I   defícíent.
     9                       THE COURT: 201,5      or   tL4?

10                          MR. SMITH: 2014.
11                           THE COURT:    Okay. Thank you.
L2                       I[R. SMITH: Over two months after we              had
13       served the ÍnitíaI request.
1-4                         THE COURT: Okay.
15                          MR. SMITH: A number of thíngs have taken
L6       place in the Íntervening months since we received the
L7       request. Defendants e)<pressed an interest in doing early
18       mediation. Ultímately, that was held on September 29trln,                and
79       it was unsuccessful.
20                              turn to Ehe objections that,
                            Vlhen we
2L       Defendants have lodged in their responses to plaintíff's
22       díscovery request, theyrre virtually            the same set of
23       objections over and over and over again, regardless of what
24       the nature of the interrogatory or the request for
25       production is.
                        GRELY-N FREEIJIAN, TEXAS CSR 8179
                                  188TH DTSTRICT   COURT
                             101 E. METITVTN, SUITE 408
                      IJONGVIEV{, TEXAS    75601    903 -237 .2688


                                                                          MR    I45
                                                                           I



      1                    Andessentially there are two kinds of
      2   discovery that r¡ve,re trying to conduct in our request for
      3   production, our request for admissíons, and our
     4    interrogatories. One is on our underlying breach of
     5    contract and declaratory judgment claim, because par! of the
     6    policy requires that you prove that the third. party was
     7    negligent and that she was an underinsured or an unínsured
     8    motorist.
     9                     So we've sentinterrogatories, for example,
10        that have requested, íf you contend that Mr. Jackson ís aE
t_   t-   fault for the colIísion that took place, give us the general
L2        factual basis for that cont,ention,- if you contend that there
1_3       were any other causes or Ehird parties who are at fau1E
L4        other than Patrícia tompkins, give us the general factual
15        basís for thaÈ contention. as RuIe Lg7 -L allows us to do.
L6        Those requests are not responded to, and they're objected.
L7        to.
r_8                        There are reguests for underlying information
L9        like photographs, díagrams. Not just photographs of the
20        vehicle, but if photographs have been taken of the scene
2L        during their investigatíon of the underlying matter, we want
22        those photographs. There's a corresponding int,errogatory
23        that goes to the authenticatÍon of those documents. provide
24        us the name of the person who took the photographs you
25        produced. along wÍth the date that he Èook those photographs.
                                          TEXAS CSR 8179
                        GRELY-IV FREET¡IAI{.
                              188TH DISTRTCT COI'RT
                           1O]- E. METIÍVIN, SUITE 408
                      IJONGVIEbI, TEXAS 75501 903.237 .2688


                                                              MR 146
                                                                         9




     1                     All of those requests relate to the
     2     underlying matter. They're objected to on largely the same
     3     grounds as every other request, which is, you're not allowed
     4     to seek díscovery of bad faith craims in your action. Irterr,
     5     Ehis case has both breach of contract and declaratory
     6     judgment claims along with bad faith claims and
     7    extra-contract,ual claims for the Defendant's refusal to
     8    tender any partial payment of any undisputed sum thatrs due
     9    to Mr. ,Jackson.
10                         Nornr, there ís no questÍon that the discovery

11        thaÈ is targeted to the underlying incident, the breach of
L2        contract, declaratory judgment actíon to prove Èhat the
13        thírd party is at fault and that she's an underinsured
L4        driver, there's no question that that díscovery is
15       permissible in thís action.
15                         Defendant's objections are kínd of      a
L7       litEle bít of putting the cart before the horse. I¡Ihat they
18       ultimately want to do is they !Ìrant to sever off the bad
L9       faitn extra-contractual claÍms and abate them. Now, they
20       filed a motion regarding that previously, and when we had
2t       the discussion regarding having an early mediation, both
22       Plaíntiff 's Motíon to Compel, which $re hrere working on at
23       Ehe time, and their moEion to sever and abate were kind of
24       taken off the table so we would have an opportunity to
25       mediate and noÈ incur any additional and unnecessary
                      GREr,nV FREEMAN, TEXAS CSR 8179
                            188TH DISTRICT   COURT
                          101 E. METITVIN, SUITE 408
                    ï,ONGVIEV'I, TEXAS "7560L 903.237 .2688


                                                              MR   I47
                                                                          10




      1    Iitigatíon    expenses.
      z                      But wíth regard to those bad faith claims,
      3    those claíms are stÍII alive here. And essentially what
     4     their objection ís, and they cite to a líne of cases that
     5     have ordered severance and abat,ement when you had breach of
     6      contract claims and bad faÍth craims broughÈ together in the
     7      same lawsuit agaínst a IIjl/urM carrier. Their argument ís,
     I     is that we can't do both at the same time. If you are
     9     allowed to admit into evidence underlying investigative
10         materiars, which are discoverabre and rerevant to your bad
11         faiÈh claims or determinaEion of whether or not we are
L2         likely liabIe for the underlying loss and the extent to
13        which we are líkely liable for the underlying loss, those
L4        prejudice their right Eo stand on theír refusal to
15        acknowledge the craim and require the plaintiff to establish
r-5       that the third party is at fauLÈ and that she was an
I7        underinsured or unÍnsured motorÍst.
18                        The difference beÈween those cases and this
L9        case is that in alt the cases that Defendants cite to, alI
20        the bad faÍtfr claims relate to Ehe sufficiency of the
2t        settlement offer. Basically, if you rÂrere to take it and
22        apply it to the facts of this case, you know, they mad.e a
23        $20,000 offer. In these other cases, the complaint is,
24        weII, you should have offered me 60 or 100 or j-00,OOO or
25        whatever, you know, the damages would be.
                          GREI,W FREEIiÍAN, TEXAS CSR 81?9
                               ]-88TH DTSTRTCT COURT
                             101- E. METTWIN, SUTTE 408
                        LONGVTEW, TEXAS 75601 903.237 .2688


                                                               MR   I48
                                                                           t_1




      1                   Thatls not Èhe nature of plaintiff's     bad
      2    faith craims ín Ehis case. The nature of plaintiff's      bad
     3     faÍth claims in thís case is that you have done an
     4     investigatíon, yoü have obviously made a deÈermínation that
     5    he ís due some amounE under the policy up to $20,ooo because
     6    that's what you offered. And when pIaíntiff requested that
     7    you tender the partial palzment of the undispuEed sum, you
     I    refused to do so and essentiarty Eried to strong-arm him in
     9    withholdíng undÍspuËed sums that he's entitred to in an
 10       atÈempt to kind of sÈrong-arm hím into signing a comprete
11        and final release of all hís claims.
t2                        THE COURT: Was the offer of 20     well, it,'s
13        not an offer, but was the $20,000, was that before he had
L4        counsel or after he had counsel?
l-5                      MR. SMITH: After.
L6                        THE COURT: Okay.
t?                                          Mr. Hatcher and
                          MR. SI'/IITH: NoÌrr,
18        Mr. Robertson $¡ere t.he ones who were rit,ígating Èhis case at
19        that tíme.
20                       THE COURTT Okay.
2L                       1t4R.   SMITH: But my understanding is, and
22        based on correspondence that l,ve seen, is that Ehat
23        occurred after he had counsel.
24                       THE COURT: Ar¡d teII me again. Mr . Smith,
25        your posítion is how was bhe g20,OO0 tell me again the
                       GREL]TI\I FREEI,IA¡I, TEXAS CSR 8179
                             188TH DISTRTCT      COURT
                          101 E. METITVTN, SUITE 408
                     LONGVIEW, TEXAS    7560L 903.231 .2688

                                                              MR   I49
                                                                                       L2




     1_    context under which that          came up.
     2                         lUR. SMITH:     So, after Èhe third party
     3     settlement    ?

 4                              THE COURT: YES.

 5                              IIIR. SMITH: And   I guess to kind of          there
 6         was negotiation wíth a third party when it became clear that
 7         they were goíng to tender up theÍr policy.              We   sent the
 I         consent to settle
 9                              THE COURT:     I got that parÈ.
10                             MR.   SMITH:       to the I'M/UIM. They consent
11        Eo the settlement.         We    got the third party    money.
L2                             THE COURT:      Got thaÈ.
13                             MR. SMITH: We then submitted the claim for
L4        the remainder to the        UM/UIM.
15                             THE COURT:      Right.
16                             MR. SMITH: Once that claim was submítted --
t7        and f believe we were the ones who submitted Ehe claim on
18        Mr. ilackson's behalf .
19                             THE COURT: Okay.
20                             MR. SMITH:      After thaE claim was submitted,
2L        \,rre   presume that an invest,igation was done because the
22        insurance code requires it,           and they ultimately came back
23        and said, you know, rrhlerre going Eo of fer you $20,            O0O. "

24                             I¡Ihen we   got that offer, Mr. Hatcher sent         them
25        a letter saying, if this is the undíspuÈed sum, or if
                                             TEXÂS CSR 8179
                             GRETJ1ßÏ FREEMAN,
                                  188TH DISTRTCT COTIRT
                                101 E. METIIVIN, SUITE 408
                          r,oNcvrEw, TExAs 75601 903.237 .2688

                                                                           MR I5O
                                                                            13




     1   there's an undisputed sum t,o which Mr. ,fackson is entitled,
  2      then tender that money and we wíII litigate the remainder.
  3                        THE COURT: Okay.
  4                        MR. SMITH: What AÄA Insurance Company's
  5                       nothing. They just refused to tender Ehe
         response vras vras
  6      partial payment, ot any partial payment for that matter.
  7                        THE COURT: Okay-

  I                        MR. SMITH: And so     our posiEion ís, is that
  9      at, Èhis time, based on Èhose bad faith claims, those bad
10       faith claims are proper. BuE even if they're not     even if
11       there is some sort of relief that's reE:ired in order Eo
I2       prevent any kind of prejudice to the ínsurance company,
13       aside from privíIege, those are all evídentÍary íssues not
I4       discovery issues.
l_5                       And surely severance and abatement     is   one
L6       avenue that, the Court, in its discretion, could use to
T7       amelj,orate that prejudice. IÈ's certaÍnIy not the only
l_8      medíum the Court could use. For example, Èhe Court could
1,9      use a bífurcation and bifurcate Ehe underlyíng dec action
20       and breach of contract from the bad faith claims. And that
2L       way vre wouldn't have Eo have tt¡ro separate lawsuits, and we
22       could try it in two stages of the same proceeding.
23                       If that's    and, again, we dontt contend
24       that that's necessary in this case based on the posture of
25       the bad faith claims. But i-f. it ís, we would want a
                        GREI,YI\T FREETiIAI$, TEXAS CSR 8179
                              188TH DISTRICT    COURT
                          101 E. METITVIN, SUITE 408
                    r,oNGVrEW, TEXAS 75601 903 .237 .2688


                                                                MR    I5I
                                                                         L4




     1     bifurcation rather than severance and abatement. And it
     2     wourd be far more efficient for us to go through and conduct
     3     the díscovery that we need to conduct, and we would have to
     4     do that íÉ this ís a bifurcation íssue.
     5                    So that is, in sum, t,he essence of their
     6     objections. IE's essentially Ehe same thing over and over
     7    and over again, yraI1 aren't allowed to conduct discovery of
     I    bad faiEh craims even if the discovery doesn't have anything
     9    Eo do wittr bad faith claims and relates to the underlying
10        incident. And because you're not allowed to Ery those ín
11        the same proceeding, you're not allowed to do discovery of
I2        them in the same proceedíng.
13                        No\,rr, one other issue that ,s kínd of on top of

L4       this is that we had sent our meet and confer letter
15       attachíng this Motion Eo Compel on Juty 15th, I believe it's
16       dated , of 20L5. In Ehat meet and confer letÈer r^re had asked
I7       for a conference to satisfy the Rules of Civil procedure.
18       But the other thing Ehat we had asked for, because replete
L9       throughouE these objections are assertions of privilege,
20       attorney-client príviIege, work product privilege, the party
2L       communicatíon príviIege, and a wiEness statement prj_vilege,
22       whích is not a privilege thaÈ even exísts. ürlitness
23       stat,emenEs   are expressly díscoverable under L92 -3.
24                         We've asked for a privilege log back on
25       ,Ju1y l-Sth of. 2oL5 so that we could get evidence and create   a
                         GRELYI\TFREEIIA¡I, TEXAS CSR 8179
                              ]-88TH DISTRICT COURT
                            1O]- E. METITVTN, SUTTE 408
                       LONGVTEW, TEXAS 7560L 903.237 .2688


                                                              MR   I52
                                                                           15




     1   posítÍon \¡rith regard to whaE ís and what is not privileged
     2   that they have asserted is protected. And t,o date we
     3   haven'È receíved t,hat privilege 1og. so in addition to
     4   stríking the objectíons and. one thing that we would
     5   request ín the arternative is that an order compelling them
     6   to produce a privilege 1og so we can take those next steps
     7   in determining whether or not those privileges are
     I   appropriate or proper.
     9                    THE COURT: Thank you, Mr. Smith.
10                       Ms. Raíne?
11                       MS. R.AI¡IE.- Thank you, your Honor.
L2                       Your Honor, f apologize, I did not jump up        a
13        rittre sooner. Yest.erday the Defendant filed an Emergency
L4        Motion for continuance on plaintiff,s Motion to compel. Did
15        the Court receive that motion, your Honor?
T6                       THE COURT¡ I did, yes.
L7                       MS- RÀ.IJVE'.- I could argue that at thÍs time,
18       Your Honor, or ask the court if yourve made a ruling on the
19       Motion for Continuance.
20                       THE COIIRT: !ve11, f haven,t . So in f airness
2L       to you, you can teIl me what that posítion is on continuíng,
22       f'11 get their response, I can rule on that, and. then I
23       guess we'lÌ get back to the merits íf I overrule your
24       continuance. But t,ell me why you wanÈ the continuance on
2S       this.
                       GRELW FREEMA}T, TEXAS CSR 8179
                            188TH DISTRICT COURT
                          101 E. METITVIN, SUITE 408
                    r,oNGVrE[,ü, TEXå,S 75501 903.237 .2688


                                                                MR   I53
                                                                                 16




     1                    Ms   .                   plaíntif f ,s f iled
                                   Rå.IIVE.- Your Honor,
     2   their Motion to Compel, as Mr. SmiEh staEed, back in ilu1y.
     3   ürle were not notif ied of the hearíng date. Medíation was

     4   set, as Mr. Smith stated, two days ago on September 29t}n.
     5   That was Èhe first we learned that there riras a hearing date
     6   set for today. rt was from the medíator.
     7                    THE COURT: And when was          Ehat, ma,am? I'm
     I   sorry.
     9                    flIS. RAIIVE.. September 29tr}:, two days ago.
10                        THE COURT: Two       days.   Okay.
11                        MS. RAI¡ÍE.- The day before yesterday.           $Ie

L2       mediated with ttlr. Davis, and t,he medíaEion did not go
13       through.
L4                        And      Mr. Smith is correct.    We have pending
15       motions t,o compel, we have a pending motíon to sever            and.

16       abate t,he extra-contractual claims ín this case-          And
T7       informally or by, you know, mutual agreement of a great
18       Iegal thought -- plot here, hre açtreed that we would table
L9       those motions, not set them for hearing to interrupt the
20       Court's time and try to proceed to mediation, try to get the
2I       case resolved.
22                        THE COURT:      Ríght.
23                                           the case did not resolve,
                          MS. RÄIIVE.- So when
24       the next course of action would certainly be, let's get all
25       those pending motions out there set. for a hearing, which we
                      GREIJYAT FREEMAN, TEXAS CSR 8179
                            ].88TH DTSTRICT COURT
                         101 E. METIÍVIN, SUITE 408
                    r,oNGVrEhI, TEXAS 75601 903 .237 -2688


                                                                   MR     I54
                                                                              L'l




     t_   hlere prepared     to
                              - However, we were unaÌ^rare that
                                  do

     2    P1aíntiff's counsel had already set Eheír Motion t.o Compe1
     3    hearíng for today. Had we realized that, we would have set
     4    our motion Èo sever and abate the extra-contractual claims
     5    at the same tj-me because we belíeve those two thíngs are
     6    int,errelated.
     7                   Further, our adjuster had a health emergency.
  I       He was not able to be physically present at mediatíon. He
  9       had a pulmonary embolism. And that was last week, and he
10        was hospitalized. He's not able to travel, and he's not
11        able to work. But he can certainly participate by
t2        telephone, whÍch ís what he did at mediation.
13                       So I don't want the Court to think that we
L4        attended mediation wi-thout proper settlement, authoríty or
1_5       anyone present. We did not have anyone physically present
T6        from Ehe ínsurance company, but we certainly were mediating
L7        in good faíth and were present in good faith to mediate that
18        mafter.
19                           Your Honor, simply that, we just did not
20        receive notification.      there's a lot of, you know,
                                       And
2L        copies of faxes and e-mails and all that, and f don't, you
22        know, it's    I believe it was a mistake, I belíeve a
23        clerical mistake. f am not saying Plaintiff's counsel
24        didn't send that to us. I didn't have a copy of the letter
25        they sent bo us. I beIíeve it was a clerical, electroníc,
                           GRELYI{ FREEIVIAtrT, TEXAS CSR 8179
                                  188TH DISTRICT COI]RT
                              101 E. METITVIN, SUTTE 408
                     r,oNGVrEht, TEXAS       75601 903.237 .2688

                                                                   MR   I55
                                                                             18




     1    some sort of, you knor¡r, modern-day error in that we did noE
     2    receíve notice of today's hearíng but for being Eord by the
     3   mediator two days ago.
     4                   THE COURT:   I,tIelI, let   me   hear t,heir response
     5   on that, and we'll see where hre are.
     6                 Mr. Smith, on Èhe motion to contínue the
     7   hearíng today. t should have got to thaÈ first. and f do
     8   apologize. Mr- Smíth?
     9                   MS. RÀI¡IE.- That r^ras my   fault_ I,m sorry,
10       Your Honor.
11                       MR.  SMITH: Sure. I think the Court is well
L2       ar¡rare that our standard practice is to try to work out any
13       kind of issues. You know, it,s understandable, someÈímes
I4       these things occur. unexpected things, sometimes clerical
15       issues occur. That does happen.
L6                      our concern was and Ís and remains that this
I7       is not an isolated occurrence in this case. you know, vre
18       talked abouÈ when this discovery was sent oríginalry, and we
19       had to go through four different extensíons of time. some
20       of those occurred afÈer the deadline had already passed..
2L                      And then we have this     as Ms. Raínes (síc)
22       discussed, you know, we had this agreement that we were
23       going to do an early mediation t.o avoíd these kind. of costs
24       and Ehings. That was in Aprit of this year.
25                      THE COURT: The mediation?
                       GRELYN FREEIIAÀI, TEXA,S CSR 8179
                            ]-88TH DTSTRICT COIJRT
                          101 E. METITVTN, SUITE 408
                    IJONGVIEW, TEXAS 7560T 903 .237,2688


                                                                   MR 156
                                                                        l-9




     1                   MR. SIUIITH: No, the di-scussion  that lve were
     2    going to have an early mediation. trle worked for two monE,hs
     3    to geE, an agreeable mediation date. T,r¡e coordinated with Ehe
     4    mediator, Dick Davis, who we ultimately were able to get an
     5    agreemenÈ on. We got t4 dates Eo begin wíth ín.fune and
     6    iluly. None of those dates worked. We got another 13 or L4
     7    dates for August and September at Eheir request. And what
     I    they picked out of, you know, all the dates that vrere
 9        available in a four-month window of tíme was the very last
10        available date for mediation, September 29tr}rl.
11                        Thís case is set for trial ín February. An
T2        early mediation should not take six months Eo occur. And
13       when you have a four-month period of time with over two
L4       dozen available dates, ít shouldn't take until the very last
15       one to have mediation occur.
L6                       And when we got that, available date from them
L7       on ,June 24th of this year, it became pretty apparenE to us
18       that we could not rely upon any kind of dilígence on the
t9       part of the Defendant to get Èhis case moving. That was the
20       impetus for us to finish our Motion to Compel, prepare a
2L       Ietter to meet and confer, and send ít to them on July 15th,
22       20L5.
23                      One   of          that they attached Eo their
                                   Èhe Èhings
24       responses is that    after that was sent I goÈ. an e-maíI Èo
25       call them to confer on Ehat. I did t,hat three times. I
                      GREIJYAI FREEIUAIV, TEXAS CSR 8179
                           188TH DISTRICT       COURT
                         101 E. METITVIN, SUITE 408
                    T,oNGVIEW. TEXAS 75601_ 903 .237 .2688


                                                             MR   I57
                                                                              20




      1    called Ehree t,imes on July 30th, on iluly 31st, and again
      2    on AugusE, 3rd -- to confer, and f never got a response back.
     3                     Set the moÈion or, [o, f didn't set the
     4     motion -- I filed t,he motíon without setting it for a
     5     hearing in the hope that if I filed it, urithout setting it
     6     for a hearing, maybe I would get a call back and they wouÌd
     7     actually confer on the substance of our discovery íssues and
     8     we wouldn't have to be there        or be here. On August lOÈh
  9        I filed iÈ. I heard nothíng.
10                         On September l-Oth we filed the notice of
11        hearing. I,{e díd it via the e-filing service, which, as the
L2        Court knows, that servíce is supposed to serve all parties
13        electronically when the filing occurs.
L4                         No\,rr, I understand it's Eechnology and that
15        technologícal issues can happen. So maybe t,here was a flub
L6        on the e-fíling service. f don'E have any control over
L7        that- I don't know. I presume that if bhey say, uÛ,Ie didn't
18        get the e-filing notice,tr Ehey didn't get it. But we also
1_9       served them by facsimile. We did iÈ two different ways. We
20        served them by two dífferent methods. I have the fax
2t        confirmatíon saying Ehat, that went through and that, it went
22        Ehrough on September 10th of 2015.
23                        THE COURT: Okay. Has         Ms. Raíne, have you
24        been the only attorney in the case or have E,here been oEher
25        attorneys?
                         GRELYAI FREEMAtrI, TEXAS CSR 8l_79
                              I-88TH DISTRTCT   COURT
                            ]-01 E. METITVIN, SUITE 408
                       ïJoNGVIEW, TEXAS   75501   903.23'7 .2688

                                                                   MR   I58
                                                                          2L




      1                   MS. RÄIJVE: There are other attorneys, your
      2    Honor. rrm an associate at the offÍce. one of our partners
      3    aÈtended medíation the day before yesEerd,ay, Ashley üthatley.
      4   And carlos Batído is the read atborney on this case.
      5                   THE COURT: Okay. Okay. Of course, f guess
      6   you how does EhÍs work? Do you direct these Èhings to
     7    lead counsel or just to the firm? How does this work when
     I    you have multipre atÈorneys? r don't know how thaÈ works.
     9                   IIR. SMITH: I can shor,v you -- I mean, on the
 l_0      e-fitíng service, iE depends on who's got the account. And
t_L       so for like for us, my e-filing account has me and my
L2        paralegal and my secretary on it.
t-3                      THE COURT:   Right.
L4                       MR.  SMITH: ff it's anoÈher att,orney on the
L5        case, then ít vrill go to him, the paralegar, secretary, and.
15        probably me.
L7                       THE COURT: Okay.
18                       MR. SMITH: On   the facsimile that we sent,
19        the e-filing -- not the e-fitíng, facsimire r don't know
20        who theyrve got listed as their servíce contacts on t,hat.
21-                      THE COURT: Okay.
22                       MR. SMITH: BrrL v¡íthrespect to the fax that
23        we sent, rrve got a copy of it here. r attached as Exhibit
24        B to our response to their emergency motÍon.
25                       THE COURT:   All right.
                       GRELnV FREEIIIA¡T, TEXAS CSR 81?9
                            188TH DISTRICT COURT
                          101 E. METITVTN, SUTTE 408
                    r,oNGVrEW, TEXAS 75601 903 .237.2688


                                                             MR   I59
                                                                                 22




     1                      MR. SMITH: Do you have     a copy? Or I can
     2   provide you the one that I have.
     3                      THE COURT:   That's E:<híbit   B?

     4                      MR. SMITH: Exfiibít B.
     5                      THE COURT:   Okay. That's           that's your --
     6                     MR. SFIITH: If I may approach, Judge? I'1I
     7   just gíve you my copy.
     8                     THE COURT:    Yeah, let me look at that.
     9                     MR- SMITH:    It,'s not to the Motion to      Compel.
10                         THE COURT:    Okay. Thank you.
l_1                        IÍR. SMITH: That, f believe, is addressed to
T2       Carlos Balido, the lead counsel, who signs all theÍr
13       pleadings in this case.
t4                         THE COURT:    Right.   Okay.
15                         MR- SIUIITHI. And also the clerk of this court.
15                         THE COURT:    Ms. Raine, did y'a1l look in your
L7       file?    Did yìa1I get this fax?
18                         MS. R.åIIVE.. i^Ie díd look ín our file,    Your
19       Honor-   We   Iooked in our fíIe,   Copytrax files,      the fax
20       system, however the faxes come ínto our office.            And, your
2L       Honor, Ehe only thÍng we could point out ís. on the fax
22       confírmation page, which we received from plainÈiff's
23       counsel the day before yesÈerday, it notes that       ít does
24       say someEhing about "TX incomplete, r' and Ehen it, says
25       'rtransaction okay, " and it says rrerror.', And I dontt
                         GREI,W FREEII.AN, TEXAS CSR 8179
                              ]-88TH DISTRICT COURT
                            IO1 E. METITVIN, SUITE 408
                       LONGVTEW, TEXAS 75501 903.237 .2688


                                                                     MR 160
                                                                           23




     1    know -- I dontt know what atl that means.
     2                   THE     C)URT: Ríght.
     3                   I'IR. SMITH: f can tell     the Court what that
     4   means.

     5                   THE COURT:     All ríght.
     6                   MR. SMITH: On all the fax confírmations that
     7   go through, those entries are there.        And f actually pulled
     I   an example of one, iludge, íf T may?
  9                      THE COURT: Sure.
10                          SMITH: This ís a fax confirmatíon sheet
                         I¿IR-

l_1      Ehat was sent yesterday or the day before. you can see at
L2       the top there's the ,'TX incomplet,e.   "

1_3                      THE COURT:     Ríght.
I4                       I4R. SMITH: And  then down below the "error.rl
L5       I¡lhat happens ís that Ehose entríes are always Èhere. I had.
L6       to double-check thÍs with my paralegal to make sure, but
L7       thís ís how it works. If there is an incomplete fax, the
18       number wíII appear there. If it's a completed fax, the
19       numbers will go through there if there's an error. you can
20       see there on that entry, one of the numbers it went t,hrough
2t       to; and on t,he ot.her one there's a number there that
22       indicates Èhere was an error in the fax. So it was noE, an
23       incomplete fax or an error in the facsímile. Both those
24       faxes went through boEh to the court and to opposing counsel
25       for t,he number that theytve got listed.
                      GREr,tnI FREEMAN, TEXAS CSR 8t_79
                            188TH DISTRICT COURT
                         ].01 E. METIÍVTN, SUITE 408
                    LONGVIEüI, TEXÀS 75601- 903 _237 .2688


                                                               MR 16I
                                                                                    24




      1                      THE C)URT¿   All right.
     2                      MS. RAIIVE: And, Your Honor, just ín
     3     response. The letter says         the letter dated
     4     September L0th, 20L5, says it was sent vj.a e-filing          and
     5     facsimile.    When we   contacted the Court to deÈermine if         a

     6    notice letter was sent -- we talked to somebody in your
     7    court, Your Honor -- and they let us    Èhey sent us a copy
     8    of the 1eÈter as well and said iÈ had not been e-filed.                  So,
     9    we looked in our e-filing system as well and we didn't           have
10        Ír.
11                                   WelI, 1zol.r're saying t,hat the
                            THE COURT:
L2        notice of hearing letter dated September 10, you donrt
13        you don't thínk it was e-filed?
L4                          MS. R.AIIVE.. That is correct .    That was not
15        I believe that was not e-filed,        and thaE was verified
t6        through the court services.
t7                          THE COURT:    Mr. Smith, what say you on
L8        whether that r¡ras e-filed   or not r guess is my next question?
19                            SMITH: I mean, there's a file-mark
                            MR.                                            stamp
20        on the top right-hand corner of the page.
21-                         THE COURT:    Yeah, I see Ehat. I wonder if it
22        shows in my documents here.       Letrs see.
23                          MS. R.AIIVE.. Your Honor, I don't want to
24        misrepresent to the Court. I belÍeve plaintiff's         counsel
25        might have e-fited the letter t,o the Court, but it doesn't
                         GRELNT FREEIVIAIV, TEXÄ'S CSR 8179
                               ]-88TH DISTRICT   COURT
                            101 E. METIryIN, SUITE       409
                        LONGVTEW, TEXAS   75601 903.237 .2688

                                                                   MR 162
                                                                                      25




     1   reflect an e-file       thab went to Defense counsel. I díd not
     2   want to dispute that Plaintiff's          counsel e-fi1ed the
     3   document with the Court.
  4                        THE COURT: Okay.

     5                     MS. RA.IIIE: I believe that is how they filed
  6      it vriÈh Ehe Court, it just did not get re-sent out via
  7      e-file   to us.
  s                        THE COURT¡ Given       all these issues, Counsel,
  9      f'm going to overrule the Motion for Continuance, and we're
10       goíng to proceed with the Motion to Compel hearing.                  So you
11       may respond   at this time to the              as I understand it,     the
t2       burden ís on you, Ms. Raine, to now show why your objections
13       are appropriate.       Do you agree wíth Mr. Smith on that?
L4                         MS. RA.I¡IE.' That the burden is on        me?

l_5                        THE COURT:      That's what he said.
L6                         MS   - RÄ.I¡IE.. Yes, sir.
L7                         THE COURT: Okay.
18                         MS. RAI¡IE'.. To that extent,, yes, sir.
19                         THE COURT:      AtI right-      You may proceed at
20       thís tíme then.
2L                         MS. RA.IIüE.' thank you- Your Honor, this
22       morning we fiLed Defendant's Response to P1aíntiff's               Motion
23       to Compel. Did the Court receive a copy of our moÈion? If
24       not, Your Honor, I have       a

25                         THE COIIRT:     I thÍnk -- Iet me         I bel-ieve I
                       GREI,T'IV FREEMAN, TEXAS CSR 81.79
                             188TH DISTRTCT COURT
                           101- E. METIÍVIN, SUTTE 408
                     r,oNGVrEW, TEXAS 7560L 903.237 .2588


                                                                      MR 163
                                                                      26




     L    have. Letrs see here. That came in         let's see if e-fíle
     2    is at least goíng Eo do that for me. Defendant,s Response
     3    Eo Plaintiff's Motion to Compel?
     4                   MS. RAI¡IE'.. Yes, sir.
     5                   THE COURT: I have Ehat.

   6                     Mr. Smith, I'rTl going to let you get these
   7     back before I lose them.
   I                     MR. SIUIITH: Yes, Your Honor- Thank you.
  9                      MS. Rå.IÀIE.. And, Your Honor, the late filing
10       of the response goes to the lack of notice of hearing.
11                       THE COURT: I undersEand.

L2                       MS. RÄIJVE.. That.'s why all thaE is there. So
13       I appreciate you givíng us the opportunity to argue this.
T4                       WeII, PlainÈíff's counsel stole my metaphor
15       because my metaphor was Plaintiff's counsel is put,ting the
16',     carÈ before the horse. He's arguing bad faiÈh claims, he's
L7       arguing extra-contractual claims. And rrrrerre just not there
r-8      yet   -


19                      Your Honor, thís is a case agaÍnst      the
20       PlaÍnÈíff is suing his insurance company for an underinsured
2L       motorist claim. There is no cont,ractual duty to pay any
22       underinsured motoríst claims until the Plaintiff has proven
23       and received a signed judgment establishing negligence and
24       the underinsured status of the    of the oEher motorist, of
25       the E.ort-feasor in this case. Merely accepting a settlement
                      GRELYI$ FREEM;ATf, TEXAS CSR 8179
                            188TH DISTRICT COT]RT
                         1-01 E. METITVIN, SUITE 408
                    TJONGVIEW, TEXAS ?5601 903 .237 .2688


                                                            MR 164
                                                                         27




      1     offer, or whatever, from the tort-feasor does not move this
     2      forward into a claim of underinsured benefits to the
     3     insurance company as such that wourd rise to the revel of a
     4     breach of contract. There is no contractual duty for the
     5     lnsurance company to pay Mr. ,fackson untÍr t,here is a signed.
     6     judg,rnent. And that's estabrished. by the Brainard. v. Trinity
     7     Unìversa-l, case, your Honor   -


     I                    ft is the cart before the horse Ín Èhat the
     9     lawsuÍt that is before the court is a breach of contract
10        case. Nolrr, there's a bunch of extra-contractual craíms on
11        top of it, breach of good faith and fair dealíng, and DTPA,
L2        and deceptive practÍce act., protection act,, and violations
13        of the insurance code. None of those come into play until
1,4       there's established there has been a breach of conÈract.
15        And you donrt geE to the breach of contract unLil there has
16        been a faílure to pay an award of damages. so $re are not,
L7        Èhere yet.
18                         The primary purposeof underínsured insurance
L9        is compensatory. rt's to protect against financíaI Ioss.
20        There is no loss Èo Mr. ,fackson until he recovers a signed
2L        judgment from the court. plaintiff's discovery responses
22        ot, excuse me, discovery requesbs and their request, for
23        production of 34, there,s 22 Ehat have to deal      that deal
24        with extra-cont,ractuar craÍms. Request for claim fí1es,
25        notes, traíníng, computer programs, documenE,s abouÈ
                          GRET,nI FREEIUAN, TEXAS CSR 8179
                               188TH DISTRICT COURT
                             101 E. METITVTN, SUITE 408
                       IJONGVIEW, TEXAS 75601 903 .231 .2688


                                                               MR 165
                                                                      28




     1    settlement.
     2                   The  interrogatories, again, they're 1íst.ed ín
     3    my response. fhe number thaÈ are, again, go to claim files,
     4    notes, trainíng, employees evaluation, employee
     5    identifícation, refusal to pay, release and policies, none
     6    of Èhat would go towards herping the plaintiff prove their
     7    case of neglÍgence and damages against the tort-feasor. ArI
     I    that is for the extra-contractual issues.
     9                    Your Honor, not having the Motion t,o Sever
10        and Abate be able to be heard by the Court today, that is in
11        a sense my argument and my response to the court. The court
I2       was and having a motion to reset this case on the Motíon
13       to Compel, we need for the Court to have all of those things
L4       before it to elimínate the need for us to come back here
15       IaEer on on our Motion to Sever and Abate the
15       extra-contractual claims.
t7                       Plaintiff's discovery reguests to those ítems
18       that are extra-contractual, the fi1es, the notes, the
19       trainj-ng, the identification of everybody involved, is not
20       rerevant and ís inappropriate because it does not prove or
2t       advance Plaint,iff's case towards proving líability and
22       damages.
23                      The privÍleged materials Ehat he seeks about
24       evaluations and investigaEions, the settlement negotiations,
25       are goíng Eo be inadmissible to this jury to establish
                       GREI,nI FREEIUAN, TEXAS CSR 8 179
                            188TH DISTRICT COURT
                         ]-01 E. METTTVIN, SUITE 408
                    IJONGVTEW, TEXAS 75601 903. 237.2688


                                                            MR 166
                                                                            29




     1   liabiliE,y and damages. Plaintiff wants to argue and
  2      litigale thís $20,000 settlement offer. He is going Eo
     3   introduce all kinds    and interject all kinds of insurance
  4      issues in front of the jury.
  5                         Nohr,   granted, you get. Èhat, anyway because the
  6      only defendant in the case is the insurance company. But
  7      vüerre going to have we would have to defend ourselves
 I       about settlement negotiations about whatts -- what was fair
 9       and reasonable, what was saíd and not said. And Ehe jury is
l_0      going to hear there's $20,000 on the table. lrlhether there
11       !ùas or wasn't, whether there should or shouldn'L be, that's
L2       what the jury is going to hear. And that's prejudicíaI,
13       Your Honor.
L4                                                 to have to reply to
                           And forcíng the Defendant
15       those things in discovery at thís time ís unfaír, creates a
t6       burden, because PlainEiff's counsel, frankly, may never get
L7       there. He's goÈ to prove what hís damages are first, before
18       he ever gets to any sort of underinsured motorist coverage.
19                       Again, the purpose of underínsured motorist
20       coverage is compensaEory, is t.o make sure Ehat there    Ehe

2L       insured does not incur a financíaI loss. There's no loss to
22       Mr. ,fackson right now. There's merely claims, purported
23       claims, purported money owed. We are not there yet.
24                       So, Your Honor, wê're asking that the Court
25       not     not    as enumerated ín Defendantrs response, I think
                         GREI,]TI\I FREEM;AIV, TEXAS CSR 8179
                               188TH DISTRICT    COURT
                            L01 E. METIÍVrN, SUrTE 408
                       r,oNGVrEW, TEXAS   75601 903.237 .2688

                                                                  MR 167
                                                                        30




     1   we   clearly set out which of those issues are
     2    extra-contractual, which are not appropriate, which are
     3    privileged, which do not relate to the underlyÍng basis of
     4    the payment Èo Ehe breach of contract case.
     5                     ItIe will go through -- I personally will go
 6        through with Plaintiff's counsel and work bhrough any of
 7        those outstanding issues that, he feels can be       that should
 I       be produced in regards to his c1aim. But, Your Honor, it's
 9       just not proper to         Eo develop to allow Ptaintiff's
10       counsel to develop the extra-contractual issues when r,rre are
11       not there - I¡tre are not there at all -


L2                         THE COURT: So let me be sure f understand
13       your position. You do agree thaE there are some of these
L4       objections you need to address, but it's just         you just
15       because you just got notice of the hearíng you haventt
T6       had -- reaLized the hearing, you haven't had a chance to do
t7       that? fs that         not the extra-contractual matters, but the
18       other matters?
19                        MS. Rå.I¡IE.. There area few in here, Your
20       Ifonor, in looking at thís late last night. And I will not
2L       bore the Court with my other tired -- because you would not
22       believe the excuse we would have. But we díd not have
23       computer access in our office until 2 ot eLock yesterday
24       afternoon- I,rtre had a transfonner blow- I,{e riùere in the
25       office at I o'clock in the morning and stood at an empty
                      GRETJYII FREEIqAÀI, TEXAS CSR 8179
                             188TH DISTRICT   COURT
                         101 E. METIÍVIN, SUTTE 408
                    rJoNGvrEüI, TEXAS 75601_ 903 .237 .2688


                                                              MR 168
                                                                               31




  1   desk until 2 o'clock in the afternoon, which is      I
  2   canrt - - rrrhy my response is so late. So íC dídnrt get done
  3   until very, very laÈe. I'm out of breath. oh, I've also
  4   not s1ept, a lot, so I apologize if ilm out of breath.
  5   That's my point from that.
  6                    Yes. In goíng through my discovery, t.he
  7   díscovery question by qrrestion. And, again, it was so long
  I   because I went through it question by question to make sure
  9   I $ras covering every issue. And there are a few out there
1_0   where I think we can withdraw the objections.
11                      THE COURT: Okay.

t2                                I don't know that there is
                        MS. R-A.IIVE..
13    additional informat,ion. I did see that we had noE yet
T4    produced a certífied copy of the policy and a recorded
15    statement of Ehe Plaintiff, which we certainly should have
16    done earlier. I apologize that was noE done. That was sent
L7    over first thing this morning as I was dríving over to Gregg
l_8   County.
19                      THE COURT: Do      you have any -- you know, he
20    was saying all these other issues in terms of       do you have
2L    any response Èo all that?
22                   MS. R.å.I¡IE.. The issues about the lack of
23    response issue?
24                      THE COURT: YES.

25                      MS. R.åI¡IE.. I don't.       I know Plaíntiff   sent
                     GRELYaT FREEI,ÎAÌitr, TEXAS CSR 8L79
                           ].88TH DISTRICT    COURT
                         ].0]. E. MEIIÍVTN, SUITE 408
                   I¡ONGVTEW, TEXAS      7560]-   903. 237 .2688

                                                                   MR 169
                                                                        32




     1     out the leEÈers abouÈ you know, again, it's probably a
     2    better story shared over a cold beer Ehan in a courtroom,
     3    but I can tel1 you some stories abouE those extensions early
  4       on. And I apologize for that. I mean, I don'E have an
     5    excuse for that. t¡tre did ask for extensions, Ehey weren,t
 6        responded to, and I feel bad about that.
 7                        But, Ehis is not    hís moEion is not about
 I        the timeliness of the discovery. He wants to geE to       he

 9        wants to get past all that. He wants to get into the
r_0       extra-contracEual issues and the training of the claims and
11        the claim files and the claim notes is really what they want
L2       to get to.
13                        P1aintÍffs haven't been harmed by this delay
L4       other than being a little irritated at us. And f get that.
15       I appreciate being irritated at us. The case hasn't been
16       harmed. He's still able to go forward, he's stil1 able to
I7       do the thíngs he needs Eo do to get ready for trial-. He !ìras
18       stíII able to do the things that, he needed to do to geE the
L9       case ready for mediaEion. So and I'm not throwÍng away
20       medÍat,ion. I think werre going to get a mediator proposal
2L       from Mr. Davis, and I hope that gets a lot of       you know,
22       that gets everything resolved.
23                      You have my personal word, Your Honor, from
24       here on out. IrlI   caII Mr. Smith back within 24 hours of
25       receiving a call from him. I don't know what happened in
                      GREIT]N FREEMAIV, TEXAS CSR 8L'79
                             188TH DISTRICT   COURT
                         101 E. METITVTN, SUITE 408
                    T,oNGVIEW, TEXAS   75601   903 237 .2688
                                                  _




                                                               MR I7O
                                                                       33




     1     that reg'ard earlier. And, again, yoü have my personal word.
     2    that r will call hím. r will call within 24 hours of
     3    getting a call from him or e-maiI or a message and respond..
     4                     THE COART: All ríght.   Let me hear back from
     5    Mr. Smith.
     6                     YIR. SMITH: f appreciaÈe the offer Èo meeE
     7    and confer after thís hearing on discovery thaÈ should have
     I    been responded Eo before. It's a tittle bit IaÈe in the
     9    game for that. I mean, íf that meet and confer meet reaches
r_0       an impasse, we're going to be back here again to get a
1-1       ruling on these objections.
I2                        And, you know, the truth is is that this is
13        not some sort of gotcha situation, you know. The reason for
L4       bringing up these multiple extensíons at the beginning is
15       noE to say that Ehej-r objections have been waived. .And no
16       one is here disputing that, you know, filing Ehe response to
L7       the Motion to Compel that it shouldn'È be considered- you
18       know, they put ín the tíme and the effort to respond to the
I9       MoEion to Compel. I don't have any íssue with Iísteníng to
20       their arguments.
2L                        The problem ís, if we waiÈ anoEher È,wo weeks
22       or three weeks to do a confer on discovery and reach an
23       impasse, and then we wind up back here, wê're just
24       pushing -- kícking the can down the road so to speak.
25                        I would like to get this case moving on
                      GRETJYI\I FREEMAN,
                                       TEXAS CSR 8]-79
                           188TH DISÎRTCT COURT
                         1O]- E. METTTVTN, SUITE 408
                    IONGVTEhI, TEXAS 75601 903 -237.2688


                                                            MR   I7I
                                                                            34




     l_    discovery. These ínterrogatories these requests for
     2     productíons, I can point the ones out specifically to the
     3     Court that deal with the underlying subsEantive matters.
     4     Those need to be responded to withín t,he next 1-4 days, and
     5     Èhe objections need to be taken down.
     6                     And with respecÈ to these extra-contractual
     7     claims, the argument is is thaE nobody has been hurt by
  I        this, and t.hat's not, true. Mr. ilackson has been hurt by
  9        this. You know, he's got $4?,000 in past medical e)q)enses.
10         Hers got $35,000 in settlement Eo date. He's got another,
1I         what is that, L2,000 in past medícal expenses that are
L2         sittíng out there in the wings that haven't been paid.
13                        And the issue with thís argument on bad faith
T4         and partíal paymenEs ís that, if you're arguíng about, Èhe
r_5        suffíciency of the settlement offer, which is what all these
r_6       courE cases that they cite to are talking about, you know,
17        if the issue is, we offered you 20 and you said, ro, \^¡e
18        don't want it, you owe us more, weI1, then you're right
19        because there hasn't been a request bhat the money bhat no
20        one dispute should be paid ís not being paid. The issue is
2L        that youtre not gíving us more than whaE thís undisputed sum
22        is.
23                        But where the Íssue is, we've done an
24        investígation. We've determined Èhat you are, under our
25        contracÈ, entitled to an award from your
                       GREI,YN FREEM;AIV, TEXÀ'S CSR 8179
                            ]-88TH DISTRICT   COT]RT
                          ].01 E. METITVIN, SUTTE 408
                     ITONGVIEüV, TEXAS   75501   903 .237 .2688


                                                                  ì¡R 172
                                                                            35




     I   uninsured/underínsured motorist coverage. I^¡e're going to
     2    tell you that we have done our investigatíon impliciÈly by
     3    making this offer- And then when the insured says, ,,Okay,
     4    if this is the undísputed sum that I'm enÈÍÈIed to, I will
     5    Èake that, and comply with your obligatÍons under the
     6    insurance code to make timety and prompE payment on your
 7        claims following an investígation and based on your ovrn
 I        determination- " When the ínsurance company fails to do
 9        t.hat, the injury occurs then.
L0                        And where you see this in the context of
1"1       non-IIM/UfM claims is, let's say I,ve got a house. And,
t2        well, and this just happened, f had a flood ín my house.
13       The insurance company comes in with an estimator, â!t
L4        adjuster, to run out what all my damages are, the
15       measurements, the cost of the materials per exactÍmate (sic)
16       all this Ínformation. I¡lerve got a dispute. And he says,
L7       the insurance company doesn't dispute that you're entitled
18       to X number of dollars, but with regard to this other
19       damage, we don't think it's related, and, therefore. we have
20       a díspute wíth respecÈ to Èhis measure of damages.
2L                        The insurance company makes a proffer of a
22       partial payment of which there is no dispute. And Èhe
23       insured says, 'rokay, we'l1 take Èhe partíal payment and then
24       we'lI have our dispute." And the insurance company says,
25       "No, [o, oo, hold on- Yes, this is a partial payment for
                      GRET,YAT FREEI\,IAtrT,   TEXAS CSR 8L'19
                             1.88TH   DISÎRICT     COURT
                         101- E. METHVIN, SUITE 408
                    IJONGVIEW, TEXAS 75601, 903. 237 -2688


                                                                 MR   I73
                                                                              35




      1   the undispuÈed portíon of your claims, but we're not goíng
     2    to give you the partial payment of the undísputed portion of
     3    your claims unless you sign a release thaÈ gÍves us
     4    indemnity or release of all the claims, including the ones
     5    that we dispute. "
     6                    That is an issue that f have not seen arise
     7    in the t M/UIM context. But when it arises in the first
  I       party context wíth homeovmers insurance companies, and t.hose
  9       policies, therers no qr.restion that you can brÍng the bad
10        faith claims and the underlying breach of contract claims
11        together.
L2                       Therein lies kínd of the rub. Now, it ' s a
13        complicated area of law- Braínard says that you need Èo
L4        have a judgment. en admíssion by the third party is not
l_5       sufficient and a set,tlement by itself is not suffÍcient.
L6        Brainard doesn't, even talk about what the effect of havÍng
L7        the IIM/UIM carrier consent to the settlement with a third
l_8       party has on their contractual ob1ígations. And no case
t9        does that I'm a\^rare of .


20                        But t,he long and short of it is that the
2L        substanEive claims, these interrogatories that ask for Ehe
22        general factual basís of their contenE,ions, photographs,
23        diagrams of the scene, of the parties involved. of the
24        witnesses, witness statements, those interrogatories, those
25        requests for productions, those objections absolutely need
                        GRELnV FREEMjAÀI, TEXAS CSR 8179
                              188TH DISTRTCT COI]RT
                           101 E. METIÍVIN, SUITE 408
                      LONGVIEI,TI, TEXAS   75601   9O3.237 .2688

                                                                   MR   I74
                                                                          37




      l_    to be overruled-
      2                    And  with respect to E,he bad faith claims,
      3      those objecÈions should also be overruled. ff there,s a
     4       severance and abatement,, then we'11 conduct that discovery
     5       in the severed case. ff there's a bífurcation, we'l1
     6       conduct it in this case. But thatrs an evidentiary issue.
     7      You know, if the Court overrules those objectíons and
     I      permits the discovery of Ehe bad faith claims, and then
     9      uItÍmately when they bríng Èheir motion to sever and abate,
10          if the Court finds that's proper and, in íts discretion
11          orders the severance and abatement, their obligation to
L2          comply with that order will be abated with the remainder of
13          the craims. [{e won't have Eo come back here again whenever
L4          that case kicks back up.
1_5                         THE COURT: All right.     Anythíng further?
L6                          MS. RAI¡IE'.. Your Honor, just real briefly.
1,7                         There is nowhere in the policy that ít,'s a
18         pay-as-you-go- It,s not Ehat you get to submit your claims
T9         as you go along and the insurance company is obligated to
20         pay it just because that's what ís submitted t,o pay. So
2L         it's not, werre going Eo pay -- you know, there's no
22         obligation to pay in increments at a time along the way
23         until Ehe whole bhing gets resolved-
24                         Again, that is a lítigate t,hat is      that,s
25         an evidentiary matter about settlemenÈ and about you
                        GRET,YN FREEI,IAIV, TEXAS CSR 8179
                               188TH DISTRICT   COURT
                           101 E. METI{VTN, SUITE 408
                      LONGVTEVü, TEXAS   75601 903.237 .2688

                                                               MR   I75
                                                                       38




     1   know, whether or not, there's been a proper settlement goes
     2   to the basis of the case only after there's been a prooÉ of
     3   damages. ff Èhere's no damages, there's no damages awarded
  4      to Mr. ilackson, there's no therets no there's no need
  5      to go further against the case against A.AA. Unt,il
  6      Mr. ilackson establishes what his damages are, therers no
 7       underinsured motorist claim to make, and therers no
 8       contractual duty to pay him.
 9                       Your Honor, wê're coming back here again
10       because   I've got to seE my MoÈion t,o Sever and Abate, Irve
1L       got to set my Specíal Exceptions and declaratory judgment.
L2       If the Court wants the parties to try to work on discovery
13       response between now and the Eime that hearing is going to
1-4      be set, f 'ttr happy to do so-
15                         Your Honor, just in brief    and I know that
16       Plaintiff's counsel isn't presentíng his whole list of whaÈ
L7       he would like to respond to       certaín1y we can respond to
18       the identity of the picEures and who took them and things
19       like Èhat. But, again, going ínto the thought process of
20       who made the decision to pay and who made the decisíon to
2L       deny and who thought Ëhis or that, that does go to the
22       underlying bad faith claims, which are the extra-contractual
23       claims, which, in my argument, should be severed and
24       separated from this lawsuit.
25                         THE COURT: WeI1, if those were severed,
                       GREI,YII FREEMAN, TEXAS CSR 8179
                             ].88TH DISTRICT COURT
                          101 E. METTTVIN, SUITE 408
                    IJONGVIEV'I, TEXAS 75601- 903.237 .2688


                                                              MR 176
                                                                                         39




     1   you'd still    have to respond to that discovery eventually,
  2      would you not?
  3                        I4S. RA-I¡IE.' If Plaintiff
                                                   's counsel gets
  4      there.    ff he gets there and E,here is an award of damages,
  5      and AAA doesn't pay, then bhere's a breach -- then there
  6      could be a claim of breach of contract.            And if there's          a

  7      breach of contract, then perhaps there are those few oLher
  8      claíms of breach of good faith and fair dealíng and
  9      víolation of the insurance code. Itrs really just a step by
t_0      step process, and Plaintiff's       counsel ís speedíng ahead to
1t_      the end of the road.
L2                         Your Honor, I'd also remind the Court thaL                    my

13       adjuster really Ís síck.      And so I will       do     and I wíIl         do

L4       what r can to work with the office or work with his
15       supervisor, but in my response, as the Court probably                 knows

I6       it,   I was not able to provide an affidavit           from   when

L7       líbigation was anticipated because it requires so much to
18       review those and Eo review that information.             And the
19       adjuster that is assigned to the case is not at work                 and

20       able to do it.     And certainly    someone     else in the office          can
21-      have access to that information, but not ín the tíme period
22       that I had today.
23                         So, again, it's   not         I can't just pick          up

24       the phone and call somebody who's going to be familiar wíth
25       whaE's goíng on with this case to get and in-depth, detaíIed
                         GRELYN FREEIVIAN, TEXAS CSR 8r79
                              188TH DTSTRTCT COURT
                            101 E. METTTVIN, SUITE 408
                       LONGVIEV,I, TEXAS 7560L 903. 237.2688

                                                                        MR    I77
                                                                               40




     1    answer. You know, the adjuster is workíng from home, and I
     2    think I'm not reatly supposed to call hím a 1ot. f think
     3    he's not supposed to be working.
     4                    THE COURT:    All righÈ.   Thank you, Counsel.
     5                    What relief   are you asking for, Counsel,
     6   Mr. Smith?
     7                    MR. SMTTH:    üIith respect to    and I can give
     I   you the specífic inEerrogatories and requests if that's what
  9      you would prefer, or f can segregate it by category.
10                        THE COURT: However    you want to do it,      just
l_1      ÈeII   me.

L2                        MR. SMITH: The    easiest way of doing it is
13       for the requests and the interrogatories t,hat deal with the
)-4      substantíve underlying c1aim, f would ask that Ehose
15       objections be overruled and that they be ordered, competled
16       to respond to those within 14 days. I,{ith respect to the bad
I7       faíEh --
18                        THE COURT:    I'm going to make that ruling.
19       okay. All right.
20                        MR. SMITH:    With respecÈ to Ehe bad faith
2T       claims, perhaps the fairest way of dealíng wiËh that is to
22       overrule the objections and reguire a response within 30
23       days, or maybe even 45 days. That will give them      t,j-me   to
24       file theír motion to sever and abate. In the event that
25       íE's granted, that discovery would be pending in the severed
                       GREI,YN FREEMAIV, TEXAS CSR 8179
                             ]-88TH DISTRICT COURT
                          101- E. METITVTN, SUITE 408
                      LONGVIEW, TEXAS 75601 903.237 .2688


                                                              MR     I78
                                                                         4L




      1   cIaÍm, and they wonrt have Eo respond to it until Ehe
     2    abatement is removed. fn the event that it's bifurcated,
     3    then we already have an order thaÈ compels the production of
     4    that information, and we can kínd of keep this t,hing
     5    ro11íng.
     6                    THE COURT:  I'11 make that ruling.
     7                    Anything further from either side?
     I                    MR. SMITH: No, Your Honor,   Ehat's all.
     9                                                 Plaintiff have
                          MS. RÄ.IIVE.. Your Honor, does
10        Eo províde t,he specif íc requests  and, f rm sorry, I missed
1_   t_   that first part. rs he goÍng t,o provide the specific items
L2        that he belíeves meet the requirement for substantÍatly
13        underlying claims?
t4                        MR. SMTTH:   I can do So.
15                       THE COURT: He says he's going to do that.

16                       MS. RA-IìIE.. Okay. Provide it to the Court
t7        or -- we1I, I guess he provides it to you, and if I don't
18        agree with those numbers we,l-l be back on that as well.
L9                       MR. SIUIITH: I'11
20                       MS. RAIÀIE'.. I mean, I've got tro agree wiÈh
2I        the photographs Irm sorry to interrupt.
22                       MR. SIUIITH: Thatts f ine.
23                       NIS. R^AIIVE: I agree    like Eo the identiEy
24        of the photographs, but f don't want to agree to people's
25        thought processes and ideas, who made decísions to deny,
                        GREr,lrN FREEMjAN, TEXAS CSR 8179
                               188TH DTSTRTCT COURT
                           101 E. METITVIN, SUITE 408
                     r,oNGVrEW, TEXAS 75501 903.237 .26e8

                                                             MR   I79
                                                                            42




      l_   because then Ehere   is      sort of concession thaE, we did
                                     some
      2     make a decision t,o deny, and that,s not really what iE is.
      3                     MR. SMITH: So in that respect, I think the
     4      easiest way to do it is for me to prepare a proposed order
     5      with that segregated out and then to provide it to Defense
     6      counsel. She can review it, . T.f. there is a dispute over f
     7      think this is bad faith as opposed to substantive, then we
  I         can have that conversation. And we'11 ultimately put an
  9         agreed order ín front of the Court, or at least a proposed
10         order from each side íf we can'E reach an agreement.
1l_                        And the other thing that I would add on that,
L2         since she remínded me, regarding the pri-vileges, in
r_3        conjuncÈion with these orders I would ask thaÈ a privilege
L4         log be prepared within that same period of time with respect
15         to each one of these categories of díscovery. So on the
16         substantive claims, if there's privileged materials that are
L7         being withheld, produce privÍlege logs within 14 days. On
18         the other one, bad faith extra-contractual c1aíms, produce
l-9        privilege logs within 30 or 45 days.
20                         THE COURT: I'll  do 45 d.ays. All right.
2L         Anything further?
22                        MS. RåI¡IE.. No, Your     Honor. I will point out
23         thaÈ f did give Mr. Smíth my ceII phone number since our
24         telephones htere out of service yesterday. So novr Mr. Smith
25         has no reason at all not to talk to me on a regular basís.
                        GREI,YIT FREEI.iTA¡I, TEXAS CSR gL't9
                               188TH DISTRICT   COURT
                           101 E. MET}IVIN, SUITE 408
                      IJONGVIEW, TEXAS   75601    903. 237 .2688

                                                                   MR I8O
                                                                                       43




  l_                       THE     C)URT: Thab sounds like a good plan.
  2                        I[R. SMITH: I might need to get thaÈ from you
  3    again.   T,{as   that in an e-mail?
  4                        MS. R.AI¡IE.. And   in the letter   -   -   vte   sent it
  5    both,   senE   it Erùice. I,r¡e're covered.
  6                       THE COîIRT: Okay- Thank y'all for comÍng in.
  7    Werre in recess.
  I                        IIIR. SþIITH: Thank   you, Your Honor.
  9                        (End    of proceedings)
t_0

11

I2
13

L4

15

16

L7

t_8

L9

20

2I
22

23

24

25
                        GRELY-ATFREEMAN, TE)(AS CSR 8179
                              188TH DTSTRICT COURT
                            101 E. METIÍVIN, SUITE 408
                      r,oNGvIEW, TEXAS 75601_ 903 .23"7 .2688

                                                                       MR      I8I
                                                                           44




 l_   STATE OF TEI(AS
 ¿    COUMTY   OF   GREGG

 3        T, Grel1m Freeman, OffÍcia1 Court ReporÈer in and
 4    for t.he 188th DistricÈ CourE of Gregg, State of Texas,
 5    do hereby certífy that the above and foregoing contains
 6    a true and correct transcription of all portions of
 7    evídence and other proceedíngs requested in writing by
 8    counsel for the parties to be included in this volume of
 9    Èhe Reporterts Record in the above-sbyled and numbered
10    cause, all of whích occurred in open court or in
11    chambers and were reported by me.
L2        I further certify that thís Reporter's Record of the
13    proceedings truly and correctly reflects the exhíbits,
L4    if any, offered by the respective parties.
15        I further certify that the toEal cost for the
16    preparatíon of Èhís Reporter's Record is 5264.00 and was
L7    paid by Sloan, Bagley, Hatcher c Perry Law Firm.
18         hIITNESS MY OFFICIAL HA¡üD this the 25th day of

L9    November      2015.
20
                                    s    Grel      Freeman
2t                                 Gre   yn Freeman,      CSR
                                   Texas CSR      81-79
22                                 Official Court Reporter
                                   188th District Court
23                                 Gregg CounEy, Texas
                                   l-oL 8. Methvj-n, suite 408
24                                 Longview, Texas 75601
                                   Telephone: 903-23'7-2688
25                                 Expiration : 12 / 3L/ 2or5
                       GRET,YN FREEMAN, TEXAS CSR 8179
                            188TH DISTRICT      COI]RT
                          101 E. METITVIN, SUITE 408
                    f,oNcvrEw, TEXAS ?5501 903.237 .2688

                                                                MR   î82
APPENDIX TAB   3
                                                                                                 1




      t_                                REPORTER'S RECORD
                                      VOI,I]ME 1 OF 1 VOIJIIMES
     2                          TRIAT COURT CAUSE NO. 201,4.]-365-A
     3      THOMAS iTACKSON                         )       IN   THE DISTRTCT   COURT
                                                    )
     4     vs.                                      )       GREGG COUNTY, TEXAS
                                                    )
     5     AAA TEXAS COUNTY MUTUAL                  )
            INST'RAI\TCE COMPAI\TY                 )    188TH iTIJDICIAI, DISTRICT
     6

     7

     I
     9

10           DEFENDAIVT'S MOTION FOR SEVER;AI{CE AIID/OR PLEA                   IN   ABATEMENT

11                                                      &

L2                                      SPECIAIJ EXCEPTIONS
l_3

t4
15

L6

I7               On   the     of November, 2015, the following
                            5Eh day
18         proceedings came on to be held ín the above-titled and
19         numbered cause before bhe Honorable David Brabham, Judge
20         Presidíng, held in Longview, Gregg County, Texas.
2L            Proceedíngs reported by computerized stenotlpe
22         machine.
23

24

25

                              GRELYN FREETIIAIV, TE)<AS CSR 8179
                                     188TH DISTRICT COI]RT
                                 101 E. METIfl/TN, SUrTE 408
                            IJONGVIEI^I, TEXAS   75601 903.237 .2695

                                                                                 MR     I83
                                                                         a




      L                                   .APPEÀXÀIICES

      2   MR. t]uSTIN SMTTH
          sBoT NO. 240684t5
      3   SIJOA¡I, BAGI,EY, HATCHER 6. PERRY LAW FTRM
          101 East lllhaley Street
     4    L,ongview, Texas 756',01.
          Telephone:     903 .757. ?000
      5

     6          REPRESENTING THE PI,AINTIFF

     7

     I
     9    MS. NAI{CY RjAINE
          sBoT NO. 00786183
10        WAITERS, BAIIDO 6. CRjAIN, IJ.Ir. P
          Meadow Park    Tower, Suite t-500
l-L       1-0440 North   Central Erq)ressway
          Dallas, Texas 7523L
t2        Telephone: 21-4 .749 .48 05
13

L4             REPRESENTTNG    THE DEFENDANT
15

16

t7
18

l-9

20                                    REPORTERIS NOTE

2L                    Uh-huh = Yes - Affirmati_ve response
                        Huh-uh = No - Negative response
22        Quotation marks are used for clarity and do not necessarily
                            indicate a direct quote.
23

24

25

                         GRELTÀI FREEIUAII, TEXAS CSR 8179
                              188TH DISTRICT COURT
                            101 E. METITVTN, SUTTE 408
                      IJONGVIEW, TEXAS 75601 903 -237 .2688


                                                              MR   I84
                                                                                          3




      1                                  CHRONOI,OGICAT, INDEX

      2                                        VOLUME 1

      3     DEFENDAMT'S MOTTON FOR SEVER,A¡ICE Ä¡ID/OR PIJEA             IN   ABATEMENT
                                                   6c

      4                                   SPECIA¡ EXCEPTIONS
      5   November    6,     20L5
     6                                                            PÀGE        VOIJ.
     7    DEFENDAÀTT '   S   MOTTON    TO SEVER AIID ABATE
     I    Ms. Raine.                                                 5        1

     9    Mr. Smith                                                           1

1_0       Ms. Raine                                                           L

1_1       Mr- smith                                                 19        L

T2        Court's ruIing.....                                       22        1

13        DEFENDA¡ITIS MOTION FOR SPECTAT EXCEPTIONS

t4        Mr. Smith                                                 23        1

15        Ms. RaÍne                                                 23        1

16        Court's ruling.       .                               .25,29        1

L7        ReporÈerrs certificate.                                   34        1

l_8

L9

20

2L

22

23

24

25

                             GREI,]TÀI FREEMAIitr, TEXAS CSR 8179
                                      188TH DTSTRTCT    COURT
                                    101 E. METITVTN, SUITE 408
                         IONGVIEI^¡, TEXAS     756OL 903.237 .2688

                                                                          MR      I85
                                                                                       4




     1_                            PROCEEDINGS
     2                                November   6,   2015
     3                        (Open   court, parties present)
     4                        THE COURT:   AII righE.        This is a cívil
     5    matter.  Thís is 2014-1365-4. fhis case ís styled, I
     6    believe, Thomas Jackson versus AA,iA Texas County Mutual
     7    Insurance Company. I believe, Counsel, vJê,re here on
     I    Defendant's Motion for severance and Defendant's Motion for
     9    Special Exceptions. ff you'11 identify who you are for the
t_0       court reporter and who you represent, please. Counsel?
L1                       MR. SMITH: ilusÈin Smith here on behalf of
l2        the Plaíntiff,     Your Honor.
13                           MS. R.AI¡IE.. Nancy Raine on behalf of the
T4        Defendant.
15                           THE COURT:    AIl right.        And, Ms. Raine, are
16        you ready on your moEions then?
L7                           MS. R.AIJVE.. Yes, sir.
18                           THE COURT:    All right.        You may proceed at
19        this time.
20                           MS. R.A.INE: Your Honor, would you        Iíke for   me

2L        to go forward and present the Motion to Sever and .Abate
22        first and then the Specía1 Exceptíons or present, them at the
23        same tíme?
24                           THE COURT:    .Iust, however you \¡rant to proceed.
25        f'm going to let you decide.
                           GREIJn\T FREEMAN, TEXÄ,S CSR 8179
                                 188TH DISTRTCT COI]RT
                            101 E. METIÍVIN, SUITE 408
                       roNGVrEW, ÎEXAS 75601 903.237.2688

                                                                       MR 186
                                                                          5




      1                   MS. RÄ.I¡IE.- That,s   fine. Thank you, your
      2    Honor.
      3                   Your Honor, Defendant has filed a Motion to
     4     Sever and Abate the extra-cont,ractual claims that the
     5     Plaintiff has brought forth in this 1awsuit. this is a
     6     lawsuit involving a motor vehicle accident. Thomas ilackson
     '7    is an insured person under a policy issued by AAA Texas.
     I     ThaÈ is not, ín contention that that policy is Èhere. I
     9     Ehink, there's been discovery exchanged, and coverage and
10         issues of those things are not ab issue.
t_1                        Your Honor, thís is a UfM underínsured
L2        motorj-st claím. rt'is actually a lawsuit to est.ablish the
13        conditions precedent in order then for the plaintíff to try
I4        to make a claim for his UfM benefíts.
l_5                        It is Defendant's position, your Honor, lhat
L6        there fÍrst must be a judicial determínatíon by the
1-7       Praintiffs of tiability, actual damages, and the status of
L8        the tort-feasor as being an underinsured motoríst before
L9        there is a judgment presented to the Defend.ant in whích
20        damages should be paid. And until there is a judicíaI
2t        determination, which is a judgment, presented to the
22        DefendanÈ, there ís no     there is no there is no breach
23        of contract. There ís no damages.
24                        The Defendant does not have an obligatíon to
25        make a payment just because a claim has been fíIed. The
                        GREIJW FREEII,AIV, TEXAS CSR 8]-79
                              188TH DISTRICT COIJRÎ
                           ]-01 E. METI{VTN, SUITE 408
                     IJONGVTEW, TEXAS 75601 903.237 .2688


                                                              MR   I87
                                                                            6




      1    Defendant has no obligatíon to make a payment just because
      2    discovery has been exchanged. The only oblígat.ion thaE the
      3    Defendant has t,o make a pa]¡ment to praint,iff in t,his claim
      4    Ís if there has been judícial d.eÈermination and the
      5    conditÍons precedent have been estabtished.
      6                   fn Plaintiff's   discovery they have asked for
      7   numerous questions, discovery   of extra-contractual craims
     I     regarding claim manuals and individual ínformation about
     9     agents. Your Honor, wê're asking the court Eo sever the
 10        extra-conÈractual claíms out of this lawsuit because they
11         are highly prejudicial to the insured. They also go inÈo
I2         matters invorving settrement, and. we do not believe that
13         that information is proper to introduce to the jury. And
l4         Ít's a waste of judicial and. party resources to enter into
15         and engage in discovery for extra-contractuar claims ín
I6        which the Plaintiff may not ever get there.
L7                        Your Honor, wê,re also asking the Court to
1_8       abate the extra-contractual demands and craims mad.e in this
19        lawsuÍt, again because it goes towards discovery that wilr
20        be produced that could be prejudícía1      or privíIeg'ed,
2L        excuse me and undiscoverable. Again, E,hatrs a riì/aste of
22        judicial and party resources.
23                        The harm Eo the Defendant is listed in
24        Defendant's responses to the Motion to compel. we believe
25        we've ouÈlíned what those harms are. But also, your Honor,
                       GRETJYII FREEM;AN, TEXAS CSR 81?9
                             188TH DTSTRICT   COURT
                           101 E. METITVIN, SUITE 408
                     rroNcvrEw, TEXAS ?5601 903.237 .2688

                                                              MR   I88
                                                                        7




     1     a couple of weeks açlo we r^rere here before you on the
     2     Praintiff 's MoEion t,o compel, and the court signed an agreed
     3     order. And in that agreed order it enumerates the specific
     4     ibems that the courE held off in demanding or ord.ering the
     5    DefendanE to comper untir after this hearíng. But, your
     6    Honor, r'd ask you to take judícial notice of the court's
     7    order on that matter. rt lists ouÈ the specifíc admissj_ons,
     I    request for production and interrogatory ansvrers that the
     9    Defendant is being asked to ansrrrer and to prod,uce ín terms
 l_0      of the extra-contractual claims. And a1so, agaín, your
11        Honor, that's in the court's file, that's in Defendant's
L2        responses to the Mot,ion to Compel.
13                        P1aÍntiff filed a response to the Motion to
L4       sever and Abate. Agaín, your Honor, we just berieve that
15       Plaíntiff has brought, rearry has brought a rawsuit to
L6       establísh the conditíons precedent. They tríed to couch ít
L7       ín terms of a breach of contract, buE therers no there's
18       no breach of contracÈ because there's been no judicial
L9       determinat,ion of damages to be paid.
20                       Also, Èo segue into Ehe Special Exceptions,
2L       Plaintiff has calred Eheir lawsuit a declaratory judgment.
22       Your Honor, this is not, an issue where h¡erre asking the
23       Court or the Court is being asked to decide on the
24       construction of the contract. And,, again, it,s not an issue
25       of coverage. The only reason to carl it a decraratory
                      GREIJ]'Iü FREEIUAÀT, TEXAS CSR 81?9
                             1.88TH DISTRICT COIIRT
                         101 E. METITVTN, SUITE 408
                    LONGVTEü¡, TEXAS 75601- 903.237 .2688


                                                            MR   I89
                                                                       I



     1    judgment is Eo circumvenÈ Ehe Court's order to      or the
     2     Court's decision ín Brainard for the Ptaintiffs to seek
     3     attorney's fee.
     4                     And, Your Honor, the Supreme Court. case
     5    Brainard states that t,here are no attorney fees to be paid
     6    until there's been a judicial determination of condítions
     7    precedent, whÍch, again, is for the Plaintiffs to establísh
  I       liability, actual damages and bhe status of the tort-feasor.
  9       Calling it a breach of contract, calling it a declaratory
10        judgment, ít's stitl what it is. And what it is is just a
l_1       suit to come forward before the Court to establish the
L2        conditíons precedent so the Plaintiffs can seek recovery
r_3      under his UIM policy.
I4                         To Ehat, Your Honor, the Court    the
15       Defendant would ask the CourE Co granE EheÍr Motion to Sever
L6       and Abate and to grant Eheir Specíal Exceptions to
L7       Plaintiff 's Second Amended Petition.
18                         THE COURT: Thank you, Counsel.

L9                        All right. Mr. Smith, you may respond at
20       thís time.
2L                        IIIR. SMITH: Yes, Your Honor. Kind of as an
22       initial matter, you know, we were here probably abouE a
23       month ago talkíng about this case. ft involves a car wreck.
24       Mr. Jackson was driving on iludson or P1iler Precise Road
25       heading out to the intersection of iludson Road. And he had
                       GREI,NÏ FREEIUAN, TEXAS CSR 8179
                            188TH DISTRICT COI]RT
                         101 E. METIIVIN, SUITE 408
                    IJONGVIET¡I, TEXAS 75601 9O3.237 .2688


                                                             MR I9O
                                                                                9




      1    a stoplight. He stopped at the stoplight,. IÈ turned green.
      2    He went through Èhe intersection to make a lefE-hand turn on
     3     the other síde of t,he intersect.ion. And patricia Tompkins,
     4    who   is the third party, ran through     Èhe red    1íght   and.

     5    T-boned him.
     6                   He's got about, I think, in excess of $go,ooo
     7    in medical expenses to date. And we expect that he's going
     8    to have future medical. And all thÍs has been presented to
  9       the Defendant ín the form of Èhe medícal records, billíng
10        records, and letters from treating physicíans.
11                         Now, when we r¡rere here about a monÈh ago, one
t2        of the things we were talking about is discovery. But this
13        issue that werre talking about here Èoday came up, and
L4        that's why we had this kínd of, you know, w€'11 do this
15        breach of contract underlyíng liabílity discovery fírst and
L6        then abate the remainder of Ehat until ure can have this
L7        hearing.
1_8                        Now,this hearing, this severance and
t9        abatement issue, which I'11 take up first, the Defendant has
20        the burden of proof on establishing that severance and
2L        abatement is proper. The trial court ís generally granted a
22        wide array of discreÈíon j-n determiníng how it's going to
23        conduct the trial and how discovery is going to proceed.
24                        And what the Defense have asserted in their
25        motíon is that, you know, despite the fact that. Èhe tríal
                         GREr,lrÀI FREEIIA¡I, TEXAS CSR 81?9
                              188TH DISTRICT    COURT
                          101 E. METITVIN, SUITE 408
                     IJONGVIEI{, TEXAS 75601_ 903.237 -2688


                                                                   MR     I9I
                                                                         10




     1    coure is generally vested !ùith wide díscretíon, it has no
     2     discretion in this case to order a severance and abatement.
     3     And bhat's not true.
     4                    Now, Èhere are bhree different claims here
     5     that wefre kind of talking about. Four if you include the
     5     declaratory judgrment action. One of those claims is a
     7     breach of contracE claim, and there's two of those ín this
     I     case. One breach of contract claim says, look, rire presented
 9        all of thís information to you, you did an evaluation and
10        investigation of this case, and you determÍned that in
11        excess of the t,hird party policy limiEs which have been
L2        paid, and in excess of the plp benefits that have been made,
13        Mr. rJackson was entÍtled to $20,000. And when we made the
L4        demand that you pay that undísputed sum to us, 1rou refused
15        Eo do so. And that's a breach of contract.
L6                        That is also t,he basis of our bad faiÈh
L7        claíms. And al1 the cases that are in their motion for
18       Severance and Abatement, all of them, you know, Trínity
t9        tfníversal dealt with a third party and a uM/urM carrier who
20       had been joíned in the same suit before bhe third party
27       claims had been disposed of. There's anolher case in there
22       where the IIM/UIM carrier and -- sorry, not the UM/UIM
23       carrier, the Defendant driver and the Defendant driver's
24       insurance company, what would be his liabílity insurance
25       company, his adjusEer was enjoined in the same lawsuit.
                      GRELYtrI FREEIUAII, TEX3'S CSR 8t_79
                            188TH DISTRICT    COTIRT
                         ].01 E. METI{VIN, SUITE 408
                    IJONGVIEh¡, TEXAS   75601 903.237 .2688

                                                              MR   I92
                                                                          1t_




      1                   Obviously, there are different considerations
      2    there than Ehere are here. All of the IrM/urM cases in their
      3    motion, all of the bad faith cases where they said that
     4     severance and abatement was mandatory,   is where the bad
     5      faíth claims were premised on the inadequacy or the
     6     deficíency of the settlement offer.
     7                     And essentially what you'1I see Ís     take,
     I     for example, the Supreme Courb case in AJ<in. fn Akin the
     9     insurer had tendered partial payment of an undisputed. sum.
10         And then thereafter, when there was litigation on the
11         disputed sum, they moved for severance and abatement. And
L2         in that case the Texas supreme court adopted a very flexible
13         standard for trial courts and appeltate courts to review
1-4       severance and abat,ement. And what it said was, we're not
1_5       going Èo adopt a hard-and-fast rule that says that severance
I6        and abatement is required anytime you have contractual
L7        claims and bad faíth or extra-contractual craims joined ín
18        bhe same lawsuit. We're not going to have that
1_9       hard-and-fast ruIe. Triar courts need to rook at the cases
20        that theylve got and make a determÍnaÈion based on the facts
2L        that they're presented.
22                        IE did say there are certain bad faith cases,
23        contractual cases, where ít would be mandatory t,o have a
24        severance and abatement, And that ís where the insurer has
25        made a sett.lement offer for the entire contractual claím.
                       GREITI'ÀI FREEI,IAN, TEXAS CSR 8179
                            188TH DISTRICT    COT]RT
                           101 E. METITVTN, SUTTE 408
                     IJONGVIEI,T¡, TEXAS 7560L 903.237 -2688


                                                               MR   I93
                                                                        L2




      1    we don'E have   that here. so werve got one breach of
      2      contract craim that says, y,aII made an offer saying this ís
      3     what we believe that he's entítled to, that's a breach of
      4     contract and that's bad faith. There,s no bad faith claim
      5     in this lawsuit saying Ehat that offer was insufficient.
      6     And so with respect to that breach of conÈract claim and
      7     those extra-contractuar claims, whaÈever the court decides
      I     Èo do, those two claims need to stay together because they
      9     arise out of the exact same facts and. they d.eal wiEh the
 10         exact same legal issues.
 11                        Now, there,s another breach of contract,
 L2         claím, which is the one that Ms. Raines (síc) is talking
1_3        abouE, this kind of tradítionar aNr/rJrM claim that says you
T4         breached the contract and you breached. the contract because
15         the third party was líabre for it. Mr. ilackson suffered
L6         actuar damages, and his actual damages are in excess of what
I7         the third party's limits are.
18                         Norirr. Akin -- and therers a case out of the
1-9       court of eppears of Er paso, whích specifically deals with
20        this issue in the uM/urM context. what that case decided
2t        was, pursuant to.akin, when you have a         a proffer of an
22        undisputed sum, t.hat 's not suf f Ícient to arise Èo the revel
23        where severance and abatement Ís mandatory. The question
24        there is whether or not there was a setElement offer for the
25        enti.re contractual claim.
                        GREI,YIV FREE¡¿AII, TEXAS CSR 8179
                              188TH DTSTRTCT COURT
                           101 E. METITVTN, SUITE 408
                     rJoNcvrEW, TEXAS 75601 903 -237 .2688


                                                             MR   I94
                                                                             13




     1                   And because the burden was on       the insurance
     2    company, who was moving  for severance and abatement, Ehey
     3    looked at evidence. And what the insurer in that case did
     4    to prove that there was contractual or there was an offer
     5    of settlement for the entire contractual claim, was they puE
     6    on letters and affidavits from their insurance adjustors.
     7                   We don'E, have any evidence of that here. And
     8    so the only way Ehat there,s goíng Èo be a mandatory
     9    severance and abatement, as the defendant claims, is íf they
10       puE on thaÈ proof thaE there rÀras an offer for Ehe entíre
11       contractual cIaim. They haven't done that. And so the
L2       trial court retains its discretíon on whaÈ it wants to do in
13       terms of looking at the facts of Èhis case and what ís
L4       appropriate to provide whatever protection the court deems
15       is necessary.
16                      The Court has  the discretion to order a
T7       severance and abatement. The court also has discretion to
18       order a bifurcation of the trial so Ehat any kind of
19       prejudice, things that woutd be ínadmissíbre on the breach
20       of contract, declaratory judgment, will still be
2L       inadmissible for those claíms. And. after Ehat issue is
z¿       tried, we wourd have a bifurcated trial on the bad faich
23       claims and the breach of conE,ract claim that, assert,s that
24       your faj-lure to tender the amount that, you determined Èo be
25       owed was a breach of contract and bad faíth.
                      GRETJYN FREEIUAN, TEXAS CSR 8]-79
                           188TH DTSTRTCT COURT
                         1O]- E. METITVIN, SUTTE 408
                    LONGVIEI^I, TEXAS 75601_ 903.237 .2688


                                                                MR   I95
                                                                          t4




      t_                    The Court  retains the discreÈion to do Ehat.
      2     fE also retaíns the discretíon to not do anything at all.
      3     rf íb just wanE,s to have everything in one triar proceeding
      4     and the discovery all proceed together, the CourE, has the
      5     discreti-on t,o do that.
     6                       Now, wiEh respect to severance and abaÈement
     7     versus doing a bifurcatíon, there are pluses and minuses on
     I     both sides - You know, they wanE, severance so that
     9     inadmissible evídence doesn,! go to the jury on the
10         determínation of whet,her the third party is líable and is
11         acÈual1y an underinsured moEorist. They don't want
L2         inadmissibte evidence Eo go in on Ëhat claim. r think that
13         that's a varíd concern that they have. severance wourd deal
L4         with that issue. Also bifurcation would deal with that
15         issue.
15                         The other complaint that theytve got is on
L7         the abatement. And they're saying that we donrt want to do
18         discovery of anyEhing that deals wiÈh extra-contractual
r_9        claims untÍI after we got a t.rial and the determinaÈ,ion is
20         then, we1I, how long are vre going to abate this second
2L         proceeding? Is it going to be through Ehe fínal judgment?
22         Is it going to be through final appeals? And therein is a
23         concern Èhat severance and abatement gives rise to that we
24         don'E have on bi-furcatíon.
25                        You know,   there's going to be a lot of things
                        GREI,YI\I FREEIUAN, TEXAS CSR 8179
                              188TH DISTRICT   COURT
                           101 E. METITVIN, SUTTE 408
                      T,oNGVIEW, TEXAS   75601 903.237 .2688

                                                               MR 196
                                                                           L5




      1    ín this lawsuit thaE's going to relate to both breach of
      2    contract and bad faith. you know, the nature of any
      3    investígatíon Èhat they did inÈo underlying facts, their
      4   termination of     of coverage is going to be an íssue in the
      5   underlying case. Because as Ms. Raines poínts out, one of
     6    the thíngs youlve got to prove is that, yoü know, she's
     7    the third party was Iíable and that she was also an
     I    underinsured motorist. So there's goíng t,o be overlap
     9    there. A Iot of the same witnesses wirl be calred. wer1,
10        at least in terms of the third parÈíes and maybe some
11        insurance adjustors as we1l.
L2                         ff we abate the discovery, dependíng on how
13         long we abate iL     and there's a case thaE's cíted ín our
L4         response that deals with that. ft,s the Texas Farmers
15         rnsurance company v- cooper- And there they were díscussíng
16         the propriety of an abat,ement. And in bhat case they
I7         determined that abatement was noE proper because the insured
1_8       had not met its burden of proof to show that iE was that
19        íb was proper.
20                        .And the concerns that the Court had in pexas
2L        Fatmets rnsurance company v. cooper are the ones Èhat r rm
22        talking about now. Specifically thaE, even assuming -- this
23        is what the court said -- even assuming that rexas Farmers
24        prevails on the contract claím, which is cerEainly not
25        foregone, this is only one aspect of judicíal economy when
                       GRELYN FREEMAI\tr, TEXAS CSR 8179
                             188TH DISTRICT     COIJRT
                          101 E. METTÍVIN, SUrTE 408
                     I,ONGVIEI^I, TEXAS   75601 903.237 .2688

                                                                MR   I97
                                                                         t_6




      1    it Ealks about the standard for abatement. ff discovery in
     2     Ehe extra-contractual case is sÈayed until the uninsured
     3    motoríst claim is final, years may pass, witnesses may die
     4    or disappear, files may be lost, and memorj-es wilt
     5    undoubtedry fade. Rather than minimízíng pretrial efforts,
     6    abatement may require that discovery be conducted twíce as
     7    t,he carrier may successfully argue iC inítiaIIy prepared for
     I    trial only on Kidd's contractual claim, not his
     9    ext,ra-contractual claims. Moreover, it, is possible that the
10        entíre lawsuiÈ, conEractual and extra-contractual, is
l_1       subject t,o disposition before trial. Numerous pretrial
L2        ruIíngs may affect both contractual and extra-contractual
L3        claims   -


L4                              there's concerns on both sides in
                            And so
15        terms of severance and abatement or bifurcation. we berieve
L6        that bífurcation ís going to e>cpedite this proceeding, t,hat
l7        bifurcaÈion will provide any kind of protection they need
18        from the jury hearing inadmíssible evídence. That would be
L9        evidence that would be Ínadmissíble on a termínation of
20        whether the third party was 1íable and that the actual
21-       damages exceeded per policy limíts. whereas, severance and,
22        abatement is going to cause a great deal of delay in this
23        case.
24                          Sínce the Court retains the díscretion of
25        whab    it wants to do and what it feels ís proper, we feel the
                         GREI,YIü FREEMA¡ü, TEXAS CSR 81?9
                              188TH DISTRICT COURT
                           ]-01 E. METIÍVIN, SUITE 408
                       LONGVIEW, TEXAS 7560L 903 -237.2688

                                                              MR   I98
                                                                             L7




     t_    Court should enter ín a bifurcaEion if it feels that       some

     2     protection is necessary in order to protect the Defendant,'s
     3     interesE but also keep this thing movíng along so that we
     4     can get it resolved as quickly as possible.
     5                    THE COART: Thank you, Mr. Smith.
     6                    Bríef response, Counsel?
     7                    MS. R.AI¡IE.. Yes, Your Honor. Your Honor,
     I    this is not a motion to enforce seEtlement. This is not a
 9        breach of contract. The insurer, A-?\A Texas, is under no
10        contractual duty to pay a claim brought under a UIM policy
11        until liability ís establÍshed and actual damages are proven
L2        and the tort-feasor status, period. There this is noE a
13        breach of contract c1aim.
L4                        Plaintiff keeps bríngíng up the $20,000 offer
15        to settle Ëhis case. This !'ras an of f er Èo settle, plaintif f
L6        would not sign a full and final release of all claims
I7        because they wanted that to be a partíal    a partial amount
18        that they only wanEed - - so t.here was no thís is no
t9        breach of contract. This i-s not a Motíon to Enforce
20        Settlement.
2L                          Your Honor, bifurcaEion is not proper in this
22        case. We're asking the Court to abate because of the
23        discovery that Plaíntiff has already put forth, and may
24        continue to put forth, in terms of the reqr:irements of
25        havíng to answer all the inEerrogatoríes, requests for
                          GREIJnV FREEIUAìI, TEXAS CSR 8L79
                                188TH DISTRICT COURT
                             t_0L E. METIÍVIN, SUITE 408
                        TJONGVIEW, TEXAS 7550]. 903. 237 .2688


                                                                 MR   I99
                                                                          18




      1    production, and admíssions that have been presented to the
      2    Defendant.
     3                      Your Honor, we just feel líke, although the
     4     law is very clear on the issue, thaÈ werre not     vr¡erre just
     5     not there yeÈ. Thís is      praintiffs first have to prove
     6     that t,hey are confounded and have a judicial determinatíon
     7     regarding the conditions precedent.
     I                      THE COURT: Do   you excuse me. Do you
     9      agree that this is within the discretion of the court to
 L0         make the decisÍon to sever and to abate?
 11                        MS. RÄIIVE'.- Not ín this case, your Honor,
 L2        because this is not a breach of contract case. And. r
13         belíeve the courts wilr support an ord.er to dírect the court
1-4        to abate and sever the extra-conEractuar claims in this case
15         because there's been no breach of contract. There's only a
16         breach of contract if Èhere's been a judgment presented to
t7         the Defendant after the conditions precedent have been met,
18         and then the Defendant doesn't pay their judgment that's
19        owed less any credíts or offsets Ehat were made.
20                         So, f mean, bottom line is if there's a trial
2L        in t.his case and praintiffs are t,hey get an award of
22        damages from the jury as to       as to the liability
23        established, how much Mr. ,Jackson's damages are, and that
24        the tort-feasor driver, Ms. Autrey (sic). was under she
25        was underinsured, there's going to be a boEtom line number
                        GREIJYTÙFREEMAN, TEXAS CSR 81?9
                             ].88TH DTSTRICT COI'RT
                           rO1 E. METIil/IN, SUITE 408
                     r,oNGVrEW, TEXAS 7560]- 903.237 .2698


                                                              MR 2OO
                                                                        19




      1    of Èhat.   From that bottom line number, we,re going to
      )     subtract ouE the amount thaE Ms. Autrey's (sic) insurance
      3    has already paid and any plp payments to offset.. Then
      4    there's goíng to be a balance Ehat's owed. AAA Texas has 30
      5    days Èo pay any balance that is owed. If they fail to do
     5     Ehat within 30 days, that coul-d be a breach of contract.
     7                     THE COURT: Thank you. Counsel, bríefly
     I     respond to that last issue, Mr. Smíth.
     9                     MR. SMITH: Yes, I will.   And this kind of
10        overlaps with the Special Exceptions Íssue as welI.
1_   l_   Ms. Raines keeps on saying this is not a breach of contract
I2        case, it's not a breach of contract case. Every síng1e case
13        that she cites in her motion, every single case that's cited.
L4        in our response, talks about contractual c1aíms versus
15        extra-contract,ual claims.
16                        And so, you know, she says that    and this
L7        was ínitiaIly thaE ít,s not a breach of contract,, Ít's not a
18        declaratory judgment, ít,s just a request for a judícial
19        determination of tiability and underinsured status- r don't
20        know how you do thaÈ without a cause of action. r mean, you
21-       have to have somethíng to put t,hese things in, in ord.er to
22        put ít in front of È,he jury and have them fifl out the jury
23        verdict form. rtts not going to be a questionnaire that
24        says, you know, is she liab1e, ís she an underinsured
25        motorist. It's going Èo be in the conEext of is t,here a
                        GRET,YN FREEMAN, TEXAS CSR 81.79
                               188TH DTSTRICT   COURT
                             101 E. METIil/IN, SUITE 408
                      LONGVTEhT, TEXAS   75601 903.237 .2688

                                                               MR 2OI
                                                                          20




     1   breached contract. And the declaratory judgment provides
     2   the framework for the remainder of it.
     3                  So I don't understand -- and I haven,t seen
     4   any law thaÈ says that t,hese are not breach of conÈract
     5   claims. Every case Èhat I,ve seen, wheEher it's cited in
     6   her motion or ours, characterizes Èhís issue as contractual
     7   claims versus extra-contracÈual claims.
  8                      And     f will agree that therets   some confusion
  9      in the law gíven Brainard, given what Brainard saíd. is, you
10       know, you're entitled    yourre legalIy entitled to recover.
11       You're legally entítled to recover when you established that
L2       the third party ís liable and that she ís an underinsured
l_3      motorist.
L4                      But there's no f ramework in which t,o make
r_5      that judicial determination absent breach of contract and/or
16       declaratory judgment. There's no cause of action that says,
77       you know, are you an underinsured moÈorist status, are you
18       liable for the third party. There has to be something that
t9       you put these thíngs in ín terms of a cause of action.
20                      Notrl, the last thÍng that she said r¡ùas on thís
2L       contingenE claims, rig}:^iu? You can'È, have a   an
22       enÈitlement to recover until you get a judicial
23       determination of the Iíabilit.y of the third parÈ,y and the
24       unínsured status. That's not any different than any other
25       contíngent claim that's broughE togebher. f mean, you think
                       GRELW FREEMAII, TEXAS CSR 8179
                            1-88TH DTSTRTCT COURT
                          1O]-   E. METI{VIN, SUITE 408
                     ITONGVIEW, TEXAS   75601 903.237 .2688

                                                                MR 2O2
                                                                           2L




      1    about negligence and gross negligence. The punitive damages
      z    question is always contíngent upon a finding of negligence
      3    by unanimous verdÍct ín the underlying case.
     4                     And the case from      EI Paso that f was quoti-ng
     5      from a moment ago also brought up that íssue about, how
     6      there's aII kinds of lawsuits where contingenE and
     7      derívative cl-aims are brought together. And the courÈs have
     I      always dealt with these by either Erying them together,
  9        bifurcating or severing and abating them. The fact that you
10         canlt have what you need in order to satÍsfy thís 1egalIy
l-1        entítIed to recover language ís judicial determination,
L2         therefore, bad faith claims are contingent, ís not any
13         dÍfferent than any other contingent claim.
L4                          Now, f will say Èhat, there is a dífference
15        because all Ehe cases that we've been talking about, with
t6         the exception of Ehe El Paso Court of Appeals case, where
L7        they put on evidence thaE it was a settlement offer for Èhe
l_8       entire amount of the c1aim, every single one in the IIM/UIM
19        context talks abouÈ the inadequacy of the seEtlement offer.
20                          fn .In Re .t'jre L'7oyds, whích is out of San
2t        Antonj-o, they had made a settlement offer for g1oo,0O0 for
22        the entire contract claim at a mediation. And then after
23        that settlement offer for Ehe enti-re contract claim was
24        made, Ehey fited a Motion for Severance and Abatement. And
25        that was found to be mandatory.
                        GREIJII'ÀT FREEMA¡T, TEXÀ,S CSR   8179
                                188TH DISTRICT COT'RT
                           101 E. METITVIN, SUITE 408
                      toNGVIEW, TEXAS 75601 903.237.2688

                                                                 MR 2O3
                                                                            22




     1                   In MiTLard, you had a bad faiEn case that         was
     2    premised on the perceÍved deficÍencies ín Ehe settlement
     3    offer. And f think it's Malmard (phonetic), it was Ehe
     4    inadequacy of the seEtlement offer thaE gave rise to the
     5    severance and abaÈement.
     6                  Every single one of those cases you have the
     1   bad faith premised on inadequacy of the settrement, offer,
     I   not the fact     thaE. you had apparently
                                               a determination of
     9    coverage, an ínvestigation in coverage, and a determínation
10        that youlre entitred to a certain amount of money and then
11-       we just don't pay it because we bry to strong-arm a fult and
T2        final release ouE of you for the undisputed amount.
13                       Now, Ms. Raines wants to say that Ehat's a
L4       settrement offer for the entire amount of the contract, buE
15       she has to put on evidence that thaÈ's true because this Ís
16       her Motion for severance and Abatement, and she has to prove
L7       that E.hose elements are met. And Èhere's no evidence here
18       thaE this was a settlement offer for the ent.ire amount of
L9       the claim.
20                         THE COURT:   All right.   Thank you, Counsel.
2L       Very good work on both sídes.
22                       f'm going to deny the Motion to Sever and
23       deny E,he Motion to Abate. I will bj_furcate the case.
24                       Irlhere does thís leave us on Èhese Special
25       Exceptions?
                         GRELYN FREEMAII, TEXAS CSR 8179
                               188TH DISTRICT COI]RT
                            101 E.   METT{VTN, SUITE 408
                       IJONGVIEIV, TEXAS 7560L 903.237 .2688


                                                               MR 2O4
                                                                        23




     1                   MR. SMTTH: lr1ith  the Special ExceptÍons, Ehis
     2     ís the confusion thaÈ u¡e were Ealking abouÈ a second. ago.
     3     rÈ's either got to be a breach of conËract claim or a
     4    declaratory judgment claim or both. r mean, we have to have
     5    a cause of actíon to put thÍs in front of the jury.
     6    Ms- Raines says iÈ's not a breach of conEract. we1l, if
     7    j-t's not a breach of contracÈ, then we have to have
     I    something Èo put in front of the jury, cause of action. And.
     9    that's why the declaratory judgment craim is pred. in there,
 10      because of this confusion that aríses and. because ure have,
11       you know, statements they're saying it's not a breach of
L2       contract craim. we've got to have something as a cause of
13       action Eo bring -- to bring thís in front of the jury. rf
L4       i-t's     if it's not one of those two, r have no i-dea what it
15       ís.
16                       THE COURT:   Ms. Raine?
L7                      MS. RÄIIVE.- Your Honor, you can caII ít
L8       whatever you wanÈ to call it. Bottom line is prainËíffs do
19       not get to recover aLtorney fees on this cause of action.
20       They can leave ít     they can carl ít a declaratory actíon.
2L       They can call it whatever.
22                       THE COURT: Is thaE what your Specj_a1
23       Exceptions address or is there other things?
24                      MS. RÄÍJVE.- It addresses
25                       THE COURT: Let me just say herers where r¡¡e
                      GREI,YTI FREEIUAN, TEXAS CSR 8179
                           188TH DISTRICT    COURT
                         101 E. METITVIN, SUITE 408
                   rroNcvrEhl, TEXAS 75601 903.237 .2688

                                                            MR 2O5
                                                                       24




      1    are, Counsel. I'm going to have Eo briefly recess us
     2     because Irve got a case comíng up behind where they're going
     3     to call in at 10:55. So f donrt wanÈ Eo get in a bínd here
     4     on that.
     5                    MS. R.4ItrIE: My order to the Court was going
     6     to be to granL our -- grant that plaintiff replead this case
     7     Eo to Eake out the declaratory judgment and to         and our
     I    claim for attorney's fees- So if I may approach the CourÈ?
  9                       THE COURT: Mr. Smith, what's your response
10        to that?
11                        MR. SùIITH: f 'd like to see some law that
L2        says that you can't recover attorney's fees on a declaratory
13        judgment case ín a IIM/UIM contexE . I haven,t seen law t,hat
L4        says t.hat
15                         MS. R.åIÀrE.- Your Honor,I have a Supreme
16        Court case Ehat's going to say that, if Èhis ís not a
L7        declaratory judgment, which it is not, ít is not to
18        esEablish the construction of thís      of t,his policy. It's
1_9       not a    itrs not asking bhe Court to establish the
20        constructive íssues of this policy- Therefore, iÈ ís noÈ a
2L        declaratory judgment, and you cannot collect attorney,s fees
22        on a case that Ís not    on an issue that is not declarat,ory
23        judgment. It violates the American rule that the parties
24        are responsíble for theír o\¡ûn att,orney's fees.
25                       THE COURT: Mr. Smith, I mean --
                        GREI,YN FREEIUAÀI, TEXAS CSR 8]-79
                              188TH DISTRTCÎ COI'RT
                           101 E. METITVIN, SUITE 408
                       LONGVIEW, TEXAS 75601 903 .237.2688

                                                             MR 206
                                                                            25




      1                    MR. SMITH:  I'd like to have an opportunity
      2    to review the case law. And r think thís is probably
      3    something we can deal wíth at a later date on, you know,
      4    more fulI briefíng for the Court after frve had an
      5    opportunity to look at exacEty what the issues are and
      6    determine if this    this is the rure in un/urM context.
      7                    THE COURT: How much    time would you need to
     I     do that?
     9                     ¡4R. SMITH: Oh,probably a week to two    weeks
 10                        THE COURT: A1I right.
 11                        MS- RA.IÀIE.- Your Honor, if f may approach I
L2        can give Ehe Court a copy of thisZ
13                         THE COURT: Sure.
L4                        MR. SIUIITH: Is thís copy for me, Ms. Raínes?
15                        MS. RAT¡TE.. Yes.
16                         THE COURT:I wíIl take that, the issue of
I7        the specíal Exceptions under advisement, give Mr. smith two
t_8       weeks to respond. And is there anything erse, counsel, vre
L9        need to do aÈ this hearing?
20                        MS. RÄ.ItrIE: Your Honor, if you could sígn an
2L        order today denying the Motion to Sever    and. Abate.
22                        THE COURT:    If you have it prepared I wilI.
23                         - RÄIJ\IE: Do you have an order?
                          MS

24                       MR. SMITH: I do not have an order, but I'lI
25        present one to Ms. Raines-
                         GREr,nV FREEMAN, TEXAS CSR 8l_?9
                               188TH DTSTRTCT COURT
                            ].01 E. METIÍVTN, SUITE 408
                      r,oNGVrEW, TEXAS 75601 903 -237 .2688


                                                               MR 2O7
                                                                                26




     1                   MS. RAIÀIE; I just vrant to make sure I walk
     2   out of here wíth a signed copy today.
     3                   THE COURT: SuTe.
     4                  MS. RÀ-I¡IE.. If that.'s all right wÍth you?
     5                   MR. SITIITH: yeah. And we should probably put
     6   in here the bifurcation,   sínce that is what the Court
     7   ordered to do, right?
     I                   THE COURT:    I did.     y,all want to add that?
     9   Y'all want to add that on the one I sign?
10                      MS. RAI¡IE'.. Your Honor, standard for Court
11_      that if you sign an order can    hre   go and get a copy,   a

I2       conformed copy of what the Court signed, or do you want us
l_3      to make copies here?
L4                      THE COART:     Sure. No, w€'11 get you the
15       conformed copy. But do we need to add t,he bifurcation
16       issue? Do y'aII want to work on that language here?
t7                      MR. SMITH: yeah, I think thatts fine.            That
18       way we've got
19                      THE COURT:  f tell you what I,m going to do.
20       I'm goíng to recess this hearíng and let y'alI work on that
2I       order, because I've got a phone call coming Ín on this next
22       hearing. And I can come back to you if f need to go on the
23       record- ilust give me just a few minutes, okay?
24                      IIIR. SMITH:   Yes, Your Honor.
25                      THE COURT:     Okay. frm going to recess this
                      GRELYN FREEUAN, TEXAS CSR 8179
                            188TH DISTRTCT COURT
                         ]-01 E. METI{VIN, SUTTE 408
                   IJONGVIEW, TEXAS 75601 903.237 .2698


                                                               MR 2O8
                                                                              27




     L    maE,ter, and thank you very much.    We'lI   come   right back to
     2    it íf   we need to.
     3                     MR. SMITH: Thank you, your Honor.
     4                     MS. R.AIIVE; Thank you, Your Honor.
     5                     (Recess   )


     6                     THE COURT: All right. Let's go back on the
     7   record if we cou1d, Counsel, ín the Jackson matter.
     I                  Have yraII worked on an order that's
     9   agreeable in form at least?
10                      IzIR. SI{ITH: Yes, Your Honor, f belíeve we
11       have.
L2                        Ms. Raines, is that language agreeable to
l_3      you?
L4                        MS. RA-IJVE.- Well, Your Honor,     I just want to
15        crarify. rs your íntention Èo bifurcate Èhe Ería1 and abate
I6        the extra-contractual claims as well so $re,11 have
L7       because we berieve that we need to have a separate Erial?
18       üIe need to have a separate jury hear the extra-contractual
19       claims. Otherwíse, $rê're picking a jury for t,he underlying
20       UIM claims, but also adding in all the extra-contractual
2L       claims, which, agaín, is what we are opposed to. So Irm
22       asking the court, is the court's intention to bifurcate the
23       extra-contractual claims as well as to abaÈe to abate
24       those extra-contractual claíms?
25                      And for, Your Honor, we were talkíng
                        GREI,NV FREEMA¡I, TEXAS CSR 8179
                              188TH DISTRICT COURT
                           101- E. METITVIN, SUITE 408
                      IJONGVIEW, TEXAS 75601 903 -237 .2688


                                                                 MR 2O9
                                                                             28




      1   earlier -- f have a case for the Court, Eo revíew. It's a
      z   ít's In Re Fazmers Texas County Mutual Insurance Company,
     3    texas Court of Appeals out of Austin. The case number is
     4    03-15-00527.
     5                      May   f approach, Your   Honor?
     6                      THE COURT: SuTe.
     7                      MS. RÄII\IE.. Your Honor,   that case deals with
     I    that the Court needs to     shaIl sever and abate
   9      extra-contractual claims from UIM claims. So I just wanted
10        to clarify if that's the Court's ruling was to bifurcate the
1- 1_     case and abate the extra-contracEual claims to a separate
L2        jury.
13                         THE COURTT My    understanding was   a

1-4       bífurcation is just     íE's before the same jury.
15                       Mr. Smith, is that your understanding?
16                        MR. SþIITH: Mine as well, Judge.
T7                       THE COURT: I mean. that's what bifurcation
l_8       is. Otherwise, you would abate it, and ít would be before
19        another jury. But is this the case, Mr. Smith, f/ou had --
20        were you aware of this case when you r^rere responding?
2L                       MR. SMITH: I don't Ehink that       and
22        Ms. Raines can correct me if I'm mistaken -- but I don't
23        believe this ís the case that was cited in their motíon. ft
24        may be a case that has been cited by some of Ehe cases that
25        are cited ín their motion.
                         GREL]TI\I FREEMAÀI, TEXAS CSR 8179
                              188TH DISTRTCT   COURT
                          101 E. METITVTN, SUTTE 408
                    r,oNGvrEbI, TE)AS 75601 903 .237 .2688

                                                                    MR 2IO
                                                                           29




     1                    MS. RÄIJVE.- Your Honor,   this case was not
     2   cited in our motion, ro.
     3                    MR. SMITH¡   I don't   know how   it would -- let
     4   me see   real quick.
     5                    THE COURT: Well-, they severed here but
     6   denied t.he abatemenÈ; is that what the judge did?
     7                                        Honor. And so it was
                          MS- RÄ-I¡IE.. Yes, Your
     I   an appeal wíthin the Court to rule that it should be severed
 9       and abated.
10                        THE COURT:lrlel1, I think that,s a different
11       situation. Because I'm going to       I'm denying the
L2       abatement, and we're going to bifurcate. And so       then the
13       íssue would be, we're goíng to proceed with full díscovery
L4       on all issues.
15                        So Ehís orderthatrs presented Èo me says
L6       that MotÍon for Severance and plea in Abatement is denied in
I7       íts entirety. Extra-contractual claims will not be severed.
18       Extra-contractual cl-aims are not abated- The Court orders
19       that the trial shaIl be bifurcated as to the plaintiff's
20       extra-contractual claims .
2L                       I'm prepared to sign this order.
22                       Mr. SmiEh, anything further?
23                       I4R. SMITH: I don't have anything further at
24       this time, ,Judge.
25                       THE C)URT: All right.   All right. I'I1 get,
                        GRELhI FREEMAN, TEXAS CSR 8179
                             1-88TH DISTRICT COI]RT
                          101 E. METITVIN, SUITE 408
                     IJONGVTEW, TEXAS '15601 9 03 .237 -2688


                                                                MR   2II
                                                                          30




     1    each one   of you a conformed copy here.
     2                     (of f - the-record discussion)

     3                     THE COURT:   Counsel, do y'a1l have another
     4    issue?
     5                     MR. SMITH: Yeah,I think we may, your Honor.
     6                  As you recall- at the 1asÈ hearing that we
     7   had, we had had a discussion about we wourd get t,ogether and
     I   Èalk about whÍch discovery related to which issue.
     9                    THE COURT:    Correct.
10                        MR. SMITH: üIe did that, and we reached an
11        agreement as to whj-ch discovery related to which issue. hle
t2        had a dísagreement about -- my recollect.ion of what, the
13        court's order was is that the objections were overruled and
L4       they would respond to discovery. Ms. Raine,s recollection
15       was Èhat bhe Court did not overrule theír objections. And
L6       so r have submiÈted a proposed order with my recollection
L7       overruling the objections.
18                       f don't know that we have a signed copy of
19       that, and thatrs what Ms. Raines and I were discussíng.
20                       THE COURT: After that hearing, I recall      I
2L       never got     I thought what I was going to get was an agreed
22       order as to form. And f don't thínk I ever got, that. So I
23       sent some orders back on the queue e-file. Maybe each of
24       you had sent a proposed order. f can'È remember now.
25                       MR. SMITH: f think f 'm the only one who sent
                        GRELn\T FREEMAIV, TEXAS CSR 8179
                             ]-88TH DISTRTCT COURT
                           101 E. METITVTN, SUITE 408
                     IJONGVIEI^I, TEXAS 75501- 903.237 .Z6BB

                                                               Ì{tR 212
                                                                                          31




     1    a proposed order.
     2                               THE COART:   Okay- Did I not sign that?
     3    I¡eE, I   s   see.
     4                  Let's see, here's a proposed order that I
     5   returned. rJet's see if that's the one you sent, Mr. smith.
     6                  MR. SMITH: Yes, this is Ehe one that I senE,
     7   to you.
     I                              THE COURT:    Here is one         let, me look at
     9   thís one. Here's a proposed order that                        r returned it
10       because r said the lawyers would submit an ord.er urith
L1       signatures as to form, and r never got that. r think                           ret
L2       me see if r can copy this.
13                                  MS. R.4.IJVE': Your Honor, we have an agreed
L4       order that Plaintíff's              counser prepared that we díscussed.
15       And then r think there was just               some miscommunication      as to
t6       if it was agreed as to form.
L7                      And, Your Honor, w€'re ready at this tíme to
18       present that to you as an agreed order on the motion,
19       Plaintiff's Motion to compel hearing. And it's agreed. by
20       the parties to form.
2L                       THE COURT: Okay. Ir11 sign that then.
22                      MS. RåItrIE; Your Honor, I would just also
23       rike to make clear for bhe record., that is the order that r
24       referenced in my argument here today because ít crarifies
25       the extra-contract,uar discovery questions and responses that
                                 GREL]TI\I FREEMAN, TEXAS CSR 81_?9
                                      188TH DISTRICT   COURT
                                     101 E. METITVIN, SUITE 408
                               r.oNGvIEW, TEXAS 75601_ 903 .237 .2688

                                                                             MR   2I3
                                                                               32




      1   have been propounded to Defendant         to answer as paït of the
      2   extra- contracEual díscovery.
      3                    THE COURT: Okay. So
     4                   MS. RAfiüS.. And I apologize, I thought the
     5    order had been signed earlier and maybe it's a mistake Èhat
     6    f just did not receÍve a copy.
     7                   THE COART: So thís is the order consístent
     I    with my prior ruling?
     9                   MR. SMITH: That's my recollection of it.
10        Apparently, \^re're nor¡¡ agreed t,o form.
11                        MS. RÄIÀIE: Yes, Your Honor.
L2                         THE COURT:Okay. f 'm going to sign it and
13        I'11 get you a conformed copy, each one of you, on this one
T4                         MR. SNIITH: Thank      you, Your Honor.
15                         THE COURT:     Sorry for the
l_6                                 f apologize. I didn't, know that
                          MR. SIUIITH:
L7        was sent back. I'm sure ít was, and f just guess f dídn,t
18        see it.
1_9                     THE COURT: AIt this e-filing is new to me.
20                      I4R. SMTTH: Technology is a blessing and a
21-       curse   -


22                        THE COWT:       All right.    AnyÈhing further,
23        Counsel, from either side?
24                        MR. SMTTH:      No,   Your Honor.
25                        MS.   RÄTÂIE;   No,   Your Honor.
                        GREr,irt\T FREEMA¡ü, TEXAS CSR 8179
                             ]-88TH DISTRICT COIJRT
                           1O]- E. METITVIN, SUITE 408
                      LONGVTEW, TEXAS 75601_ 903 .237 .2688


                                                                     MR214
                                                                           33




      1                  THE COURT:   AtI right.    Good   luck.   Y'aIl
      2   have a safe Èrip back.
      3                  MR. SMITH: Thank    you, Your Honor.
     4                   THE COURT: Okay.
      5                   (End of proceedings)
     6

     7

     I
     9

1_0


11_


L2

13

L4

15

16

77

l_8

19

20

2L

22

23

24

25

                      GREIJYÀI FREEMAI{, TEXAS CSR 8179
                           188TH DTSTRTCT   COURT
                         101 E. METTIVTN, SUITE 408
                    ïJONGVIET¡¡, ÎEXAS 75601, 903.231 .2688


                                                               MR   2I5
                                                                                 34




     1    STATE OF TE)GS

     2   COI'NTY OF GREGG

     3        T, Gre1yn Freeman, Official Court Reporter ín and
     4   for the 188th District Court of Gregg, State of Texas,
     5   do hereby cerÈify that the above and foregoing contains
     6   a t,rue and correct transcrÍption of all portions of
     7   evidence and other proceedings requesbed in writing by
     8   counsel for the partíes to be included in this volume of
 9       the Reporter's Record Ín the above-styled and numbered
1_0      cause, all of which occurred in open court or in
1t_      chambers and were reported by me.
L2           f furEher certífy that this Reporter's Record of the
L3       proceedings truly and correctly reflects the exhibits,
L4       if any, of fered by the respect,ive parties.
15           f further certify that the total cosE for the
L6       preparatíon of thís Reporter's Record ís g204.OO and was
L7       paid by Sloan. Baqlev.       Ha tcher 5E Perry Law     Firm.
L8            !ìTITNESS MY OFFICIAIJ HA¡üD    Ihis The 25Th day of
L9       November   ,   207-5.

20
                                         /s/ erelyn   Freeman
2L                                      Gre1yn Freeman, CSR
                                        Texas CSR 8179
22                                      official Court Reporter
                                        1-88th DistricL CourE
23                                      Gregg County, Texas
                                        101 E. MeE,hvín, Suite 408
24                                      Irongview, Texas 7560L
                                        Telephone: 903-23'7-26e9
25                                      Expirat,ion: 1,2/3t/201,s
                           GREL]T\T FREEMAIü, TEXAS CSR 81-79
                                 188TH DISTRTCT COI]RT
                              1.01 E. METHVTN, SUITE 408
                        r,oNGvIEW, TEXAS 7560L 903.237 .2688

                                                                        MR 216
APPENDIX TAB 4
                                                                                              Electronically Submitted
                                                                                               711612014   l1:11:41 AM
                                                                                           Gregg County District Clerk
                                                                                           By: Debbie Kinney ,deputy


                                                 2014-1365-A
                                  CAUSE NO.

THOMAS JACKSON                                      $                  IN THE DISTRICT COURT
  Plaintiff,                                        $
                                                    $
vs.                                                 $                   GREGG COUNTY, TEXAS
                                                    $
AAA TEXAS COUNTY MUTUÀL                             $
INSURANCE COMPANY                                   $
      Defendant                                     $                        JUDICIAL DISTRICT


           PLAINTIFF''S ORIGINAL PETITION & R.EOUEST F'OR DISCLOSURE

         Thomas Jackson, Plaintiff, files this Original Petilion, and in support thereof would

respectfully show the Court as follows:

                                 A. DISCOVERY CONTROL PLAN

          l.      Discovery is intended to be conducted uncler Level 3 of Tex. R. Civ. P, 190.4.


                                             B. PARTIES

          2.      Plaintiff, Thomas Jackson, is a resident of Gregg County, Texas. Plaintiff    s


Driver's License number is XXXXX037. Plaintiff s Social Security number is XXX-XX-X454.

          3.     Defendant,   AAA Texas County Mutual lnsurance Company, is an entity doing

business in the State of I'exas, This Defendant may be served with due process herein by serving

its registered agent for service, C T Corporation System    , l02I Main Street, Suite   I 150, Houston,

Texas 77002.


                                   C. JURISDICTION        & VENUE

          4.     The Court has jurisdiction over the controversy because the damages are within

the   jurisdictional limits of the court. Plaintiff seeks monetary relief in excess of $ 100,000.00 but

not rnore than $ 200,000.00.


                                                    L




                                                                                        MR217
            5,   Pursuant to Tex. Ins. Code $ 1952.110, venue is proper in Gregg County as the

 county in which the accident occurred.

                            D. AGENCY/RESPONDEAT SUPERIOR

        6.       Whenever   it is alleged in this petition   that Defendant,    AAA Texas County Mutual

Insurance Company, did any act, omission or thing,             it is meant that Defèndant's    employees,

agents, officers, directors, servants, apparent agents, ostensible agents, agents by estoppel 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 wíth 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, ditectors,

sewants, apparent agents or ostensible agents, agents by estoppel and/or representatives.

                                               E. FACTS


        7   -    Thís lawsuit results from a collision that occurred on June 72, 2013                  at

approximately 8:58 p.m.     in Longview, Gregg Uounty. 'l'exas. Plaintifl            I'homas Jackson, was

operating his vehicle westbound on Pliler Preoise Road in a saf'e, reasonable and lawful manner,

when he stopped in obedienceto 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 saf'ety 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, causing the

collision made the basis of this lawsuit.


                                                    I


                                                                                           MR    2I8
        8.      At the time of the collision, PlaintifTs 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 Defendant and included uninsured/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 complíed with all of the conditions of that insurance

policy prior to his filing suit against Defendant. All conditions precedent have been performed or

have occurred. Further, Plaintiff has complied with requests for provision of information to the

Defendant,

        10.    As a result of the collision     caused   by Patricia 'fompkins, Plaíntiff    sustained

damages that exceed the amount     of available and collectible liability insurance coverage    issued

to Patricia Tompkins and which covered her negligent actions. Defèndant refused to consider

Plaintift's injuries, medical billing paid or incured by or on behalf of Plaintiff and failed, and

continues to fail, to fully compensate Plaintiff for tlie injuries caused by Patricia Tompkins, an

underinsured motorist, and gìve Plaintiff the benefit of the bargain of his uninsuredl/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. BRßACH OF INSURAIïCE CONTRACT

       ll.     All of the premiums that were due on the AAA Texas County Mutual              Insurance

Company policy wíth Thomas Jackson as the named insured, at the time         of the wreck,   had been

paid and the policy was in full tbrce and effect at the time of the collision. Defendant, AAA

Texas County Mutual lnsurance Company, kept its insured's rnoney and had obligations as


                                                 3



                                                                                      MR      2I9
 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 denrand,

Specifically, Defendant has determined that Plaintiff s underinsured motorist claim is worth at

least $ 25,000, as evidenced by its offer to pay $ 20,000 in addition to $ 5,000 previously paid      as


personal injury protection policy limits (see Exhibit A). I'Iowever, despite Plaintiffls demand for

payment of this undisputed portion      of his   underinsured motorist coverage (see Exhibit B),

Defendant has refused to tender this amount. This failure and reñrsal to pay constitutes a breach

of contract and demonstrates bad faith. Further, Defendant's failure to properly value and fully

pay Plaintifls damages pursuant to its obligatíons in the policy at issue likewise constitute a

breach of contract and demonstrate bad faith,


                       G. PETITION FOR DECLARATORY RELIEF


        12.    Based on the foregoing facts, and pursuant to the policy of insurance in tbrce 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 Tex. Civ. Prac.       &   Rem,

Code Ch. 37 construing the contract of insurance and declaring Plaintiffls rights and obligations

under the contract. Specifically, Plaintiff seeks      a finding that Patricia   Tompkins       is   an


underinsured motorist, that PlaintitT is entitled to recover from Defendant Plaintiffls damages

resulting fronr the motor vehicle collision the subject of this suit, that Plaintiffls damages fall

within the coverage afforded Plaintiff under the policy with Defendant, and specifying               the

amount of damages, attorney's fees, interest, and court costs that Defbndant is obligated to pay.

       13.     Defendant   AAA Texas County Mutual          Insurance Company's conduct          is    a


proximate and producing cause of damages to Plaintiff. Such damages include, but are not

limited to, unpaid benefìts, medical expenses, physical impairment, lost eamíng capacity, and

                                                  4


                                                                                   MR 22O
pain and mental anguish, Such damages have occurred in the past and are likely to continue in

the future.

        14.       As a result of Def'endant AAA Texas County Mutual lnsurance Company's

conduct, Plaintiff has incurred attomey's fees through trial and appeal.

                H. BREACH OF DUTY OF GOOD X'AITH AND FAIR DEALING

        15.       Without adequate explanation or justification, AAA Texas County Mutual

lnsurance Company, by and through its agents, breached its duty of good faith and fair dealing

by denying or delaying payment of benefrts to Plaintiff in accordance with his                     insurance

agreenrent when     it   was reasonably clear that     it   should do so. As a result, AAA Texas County

Mutual Insurance Company is in violation of Tex. Ins, Code, Chapter 542, et. søq. Further, AAA

Texas County Mutual Insurance Conrpany has engaged in unfair claim settlement practices in

violation of Tex. Ins. Code, $$542,056, 542,057, and 542.058. As a proximate result of these

actions, Plaintiff suffered damages, which are more fully outlined herein below'

                                                T.   DAMAGES

        16.      As a proxirnate result of the collision, Plaintiff, Thomas Jackson,               sustained


serious personal injuries, specihoally including neck, back, and head injuries and injuries to his

body generally. Plaintiff believes some of his injuries are perrnanent in nature and have had a

serious effect on his health and well-being.          In connection with such injuries Plaintife 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. Futther, it has been

necessary     for Plaintifl Thomas Jackson, to pay or incur reasonable and necessary                   medical

expenses in the past and in all reasonable probability         will incur   reasonable and necessary medical

€xpenses    for the treatment of his iqjuries in the future. In additíon, he has sustained loss of


                                                        5


                                                                                             l,IlR 221
eamings and physical impairment in the past and         will in all probability continue to sustain a loss

of eaming capacity and physical impairment in the future. Ptaintiff, Thomas Jackson, sues for the

recovery of past and future medical expenses, past and future physical pain and mental anguish,

past Ioss of earnings, past and future loss of earning capacity, and past and future physical

impairment; all    in an amount in     excess   of the minimum jurisdictional limits of this          Court.

Plaintiff is seeking a reasonable amount to be determined by the jury for his injtries.

        17.      In addition, Plaintiff is entitled to recover attorney's fees pursuant to Tex,         Ins.


Code 9542.06 and interest at eighteen percent (18%) pursuant to Tex. fns. Code $542.060.

                                  J. DOCUMENTS TO BE USED

        18.      Pursuant   to Tex. R. Civ. P.      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 numbeted cause.

                                K. REOUEST FOR DISCLOSURE


        19.      Pursuant   to Texas Rule of Civil Procedure 194, you are requested to disclose,

within frfty (50) days of service of this request, the information or material described in Rule

lea.2 (a)-(l).


                                             L. PRAYER


        \ryHEREFORE, PREMISES CONSIDERED, Plaintifï request that the Defendant be

cited to appear and answer and that upon hnal 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;

        c.   Declaratory relief as outlined in the petition;


                                                    5


                                                                                            v,R222
d. Costs of Court and attorney fees; and
e. All other relief the Court deems appropriate.

                              Respectfu   lly subnritted,

                              SLOAN,               Y         & PERRY LAW FIRM



                              By:
                              M.              Hatcher
                              State Ba¡ No.24002243
                             Alan J. Robertson
                             State Bar No.24067952
                             Post Office Drawer2909
                             101 East Whaley Street
                             Longview, Texas 75606
                             Telephone : (903) 757-7000
                             Facsimile : (903) 757-7574
                             Email      : rhatcher@sloanfirrn.com

                             ATTORNEYS FOR PLAINTIFF




                                          7


                                                                    rurR   223
ørl2E/2øø2       L7tiL6      4Ë922L6ø25                             AAA ÍEXAS CLAIM5                               PAGE   øLIø1.




                                                     A¡AA fsx¿s County Mutual Insurance Gompany
 (t I \                                              O-SàO Hortn State Hlghwal
                                                                               101
    I                                                f   rving, Texas   7   5039-2.402
        Texas

    April2E,2014


    M. Ravmond Hatcher, Esq'
    Sloan, BagleY, Hetoher & Perry
    101 EastWhalcY St'
    Longvicw,       TX 75601

               RE:       Insured:          Thomas Jackson
                                           Thomas Jackson
                         Client(e):
                         Clairr#:          01'1137187
                         Loss Date:        6t1Aß

    Elcar Mr- Hatcher;
                                                                                                       ived in our
                                                   comPact                                             ed Motorlst
                                                  etter You
                                                                                                       dmedical
                                                  ofYour"
                                           ain to Your client's care'
                                                                                                            the
                                                         y review the facts and circr¡nstanoes sunounding
    We    have                                                      you have  provided'  unfortunately' we arÊ
        rBfetsnce                                        m"ntàt¡on
        unable to
                                                                                  rYour client $20,000'(X) UIM to
                                                                                   ¡l tne adverse canier and the
                                                                                  aid'
                                                                                              below so
        Plcase oresent our ofier to your client and
                                                    contad me at the tolephone number li'sted
        .n m"y Oi"arss and concludc this matter'



        Clalms Service

        6s5s N. State HighwaY 161
        lwlng,  TX 75039
        'ir¡wri'a;óe.222.9208É21837eor469.221'837s



                                                                                                                   ^rtt
                                                                                                                   NI)




         lngurf,ncoptovldedtogutl[IEdAAATðtasmcmblrsbylhêlnterlnsul€nceExchangeofthoAutomoblþGlubendilgañlllateg
                                                                                                        Ì,llR 224
                                                                                           I
                                                                                          I:T
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                                                                                                                                                                r
LAURIIEN ll, BAGLIIY
                                                                            SLOAN, BAGLEY                                               AlrtNJ. RODERTSoN
M. NAYMOND II.{'I'CHER                                                     HA¡:CHER & PERRY                                             CARSONR. RUNGE
GI,ßNN A. PIìRRY¡+                                                                                                                      JUSTTN         sMrTrr
'Borrd (.ìcttil¡cú I'cnr¡rd Ltiury liirl llt
                                                                                    I.AVV FIRM                                                   ^A.
                                                                                                                                        WILLTAMX, KING
r   N¡ri¡rt¡l lJo¿rl ol 1'rìrl i\lvoc*1,                                       LONGVIDW. f TOUSTON



                                                                                     May2,2014


                  Mr, Frederick Annour                                                                      Yía Facstmile No,:   ß69   221-6025
                  AAA Texas County Mutual lnsurance Company
                  6555 N. State Highway 161
                  Inring, Texas 75039

                                   Re:         Ou¡ ClienVYour lnsured:                  Thomas Jackson
                                               Date of [ncident:                        hne 12,2013
                                               Claim No.:                               ottt57387

                  Dear Mr. Armour:

                          Thank you for contactíng our offrce rec€lrtly regarding your evaluation of rny client and
                 yotrr insurcd, Thomas Jackson's, underinsured motorist claim.

                        In your letter of April28,20l4, you indicate that you are offedng $20,000.00 in addition
                 to the $5,000.00 PIP benefits proviously paid to Mr. Jackson by AAA for his injuries, as
                 settlemcnt of his claims (over and above of the $30,000.00 third-party policy limits received by
                 Mr. Jackson). By offering this arnount, it is clear that AuAú{ has performed iæ evaluation of l\dr.
                 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 PIP bcncfits). As such, thcrc is no rcasor that AAA
                 should delay payment of this amount that iself 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 yoru insured vehemently disagrces
                l\'ith 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 UIM claim with AAA for the injuries that he sustained in
                the subject collisíon.

                                         in writing that you will forward the $20,000.00 payment as requested and
                                 Please confirm
                that your insured may negotiate the check without the negotiation being considered any type of
                rclease of her rights to seek additional amounts under the policy in the future.

                Tharù you for your attention to this matter.




                                                                   101 Eest \Whaley Srreet, Longview, Texas 7560 t
                                                   Phone   9Q3.7   57.7000 I Facsirnile 903.7 57,7574 I www.sloanfi rm.c<¡rn
SrceN,   Blolnv, Hnrcnen & PBnny Llw Fn¡r¡
lvlay2,2014
Page2


                                         Yor¡rs
                                         Slon¡,           & PBnny LnwFm¡r,r




                                             RI\,   HATCHER


MRlVpau
Japkson 1392{101




                                                               MR 226
APPENDIX TAB   5
A/   LB/2ØI4 LØ24Ø 2t4-76Ø-167Ø ?!4-?ãØ-t6?ø                                                                        D 2/3
                                                                                                       El€ctron¡cally Submitted
                                                                                                          911120144i421o1 pM
                                                                                                    cregg County District Clerk
                                                                                                    By; Debble Kinney ,deputy



                                                   CAUSE NO. 2014-1365-A
                                                                                                B\\     \t{
          THO¡vÍAS JACKSON                                $        fN THE DISTRICT COIIRT OF
                                                          $
          VS                                              $        GRECG COUNTY, TEXAS
                                                          0
          fuAÁ TÐLTS COUNTY MUTUAL                        6
         Ij\TSTIRáNCE COMPANY                             I        188N IuDIcIAL DTSTRICT

                                         DEFENDANT' S ORIGN{AI, ANS WER

                   COMES      NOW AAA Texas County Mutual          Insura:rse Company, Defenda¡rt in the above

         styled and nurnbered cause and files íts Oliginal Answcr to the Plaintiffs Original Petition and in

         support thereof would rcspcctfirlly represerú and show unto the Court the following:

                                                              I.

                  Defendânt AAA Texas County lVfutual lnsurance Cornpany denies eaoh and every, a]l and

         singular, tbe material allegations contain€d in Plaintiffs Original Petition and demands strict

         proof thereof-

                                                              u.

                  Defendaut AAA Texas County Mutual Insurance Company demands a hial byjury,

                  WHEREFORE, PRDMISDS CONSIDIIRED, Defendant AAA Tcxas County Mutual

         I¡su¡ance Company prays that upon finalhial andheæing hueof, that ao tecovory be had from

        Defendant AAA Texas County Mutual Insurance Company, but that Defendant AAA Texas

        Comty Mutual Insruance Company go hence without delay and recover its costs, and for such

        other and ñrther relief to which Defendaut AAA Texas County Mutual Insurance Company may

        be   justty entitled and will ever pray,




        DEFBNDANT'      S   ORIGINAL ANSWER                                                            Page   1




                                                                                                  MR227
A/   L8/2øL4 LØtAØ    21.4-2Gø-1.6?Ø, ?1,4-?6ø-L6?Ø
                                                                                                              t   3/3




                                               Respectfully submitted,

                                               WALTERS, BALIDO & CRAIN, L,L.P




                                                L
                                               CARLOS A. BALIDO
                                               State Bâr No, 01631230
                                               MeadowPark Tower, 15ü Floor
                                               10440 North Central Expressway
                                              Dallas, T)(7523l
                                              TeL:214-749-4805
                                              Fax: 214-760- 1670
                                              oarlo s, bali do @w-b cl¡rwlìrm,   co   nr


                                          qERInTcATE OF SERVTCE

                This ís to certiffttrat a true and correct copy ofthe foregoing document has been mailed,
        faxe{ or hand delivercd to parties of               ín compliarrce with Rulc 2la of thc Texas Rulee
        of Civil Procedure, on                                              20r4_

        M. RaymondHatcher
        Alan J. Robenson
        Sloa4 Bagle¡ Hatchor &Pwry lawFirm
        P, O. Drawer2909
        101 East Whaley St¡eet
       Longview, TX 75606
       lel: 903-757-7000
       fax: 903-757-7574
       úatpþçr@sloarrfi rm. com



                                               L
                                             CARLOS A. BALIDO
                                                                            I




       DEFÞNDAI.IT'S ORIGINA.L ANSWER
                                                                                                   Page2




                                                                                               MR 228
APPENDIX TAB 6
                                                                                         Electronically Submitted
                                                                                            91312014 8:47:54 AM
                                                                                     Gregg County District Clerk
                                                                                     By; Natalie Goodan ,deputy


                                   CAUSE NO.2014       -    136s   -A
 THOMAS JACKSON                                   $    IN THE DISTRICT COURT
                                                  $
 vs,                                              $   oF GREGG COLTNTY, TEXAS
                                                  $
 AAA TEXAS COUNTY MUTUAL                          $
 INSURANCE COMPANY                                $   188fh   JUDICIAL DISTRICT

                         PLAINTIFF'S FIRST AMBNDED PETITION

 TO THE HONORABLE COURT:

        Plaintiff Thomas Jackson files this, his First Amencled Petition, and in support thereof

 respectfully shows the Court the following:

                              A. DISCOVERY CONTROL PLAN
        1.     Plaintilï intends that cliscovery will be conducted pursuant to a Level 3 discovery

controlplan. Tex. R, Clv, 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 Securitv number is

XXX-XX-X454,

       3.      Defendant     AAA Texas County Mutual Insurance          Cornpany 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

not exceeding $200,000.00.

       5,     Pursuant to Texas Insurance Code $ 1952.110, venue is proper in Gregg County.

Texas, which is the county in which the subject wreck occured.




                                                                                  MR 229
                              D. AGENCY / RESPONDEA'I SUPEIITOR
        6.          Whenever it is alleged in this petition that Defendant,   AAA Texas County Mutual

Insurance Company,         did any act, omission or thing, it is meant that Defendant's     employees,

agents, officers, directors, servants, apparent agents, ostensible agents, agents by estoppel and/ot

representatives did such act, omission or thing and that at the titne such act, omission or thíng

was done     it   was done with the actual or implied knowledge of Detèndant,       AAA   Texas County

Mutual Insurance Company, or was done with the lull authorizatíon or ratifìcation of Defendant,

AAA Texas County Mutual Insurance Company, or was done in the normal and routine                  course

and scope     of agcncy or      employrnent   of   Defendant's employees, ageuts, officers, directors,

servants, apparent agents or ostensible agents, agents by estoppe[, and/or representatives.

                                                E. FACTS
        7.         This lawsuit results from a collision that occuned on Jutre 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        lawtil   manner)

when he stopped in obedience to a traffic control device at the inter.section of Judson Road and

Pliler Precise Road. After stopping, and in obedience to the traffic control device, Plaintiff

proceeded    to continue traveling lvestbound into the intersection of Pliler Precise Road and

Judson Road. Patricia Tompkins was traveling northbound on Judson Road when, with complete

disregald 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 Plaíntiff and causing the

collision made the basis of this lawsuit.

       8.          When the collision occurred, Plaintiffs vehicle was covered by a policy of

automobile insurance in full force and etI'ect, which ís the subject of this lawsuit. The polícy of



                                                      2



                                                                                       MR 23O
automobile insurance was issued by Defendant and included uninsured/underinsured motorist

coverage as defined under the policy and/or by statute.

        9.       Plaintiff timely and properly notified l)efendant of the motot vehicle collision that

is the subject of this   suit. PlaÍntiff   has   tilly   complied with all of the conditions of that insurance

policy prior to his hling suit against Defèndant. All conditions precedent have been performed

or have occuned. Further, PlaintifÏ has complied wíth requests for provision of information to

the Defendant.

        10.      As a result of the collision            caused   by Patricia Tompkins, Plaíntiff sustained

damages that exceed the amount         of available and collectibte liability insurance coverage       issued

to Patricia Tompkins and which covered her negligent actions. Delendant refused to consider

Plaintifï s ir{uries" medical billing paid or incurred by ot on behalf of Plaintiff and failed, and

continues to fail, to    fully compensate Plaintiff for the injuries caused by Patricia Tornpkins,         an


underinsured motorist, and give Plaintifithe 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 omissíons, and unlawful conduct as described herein

below. Defendant proximately causecl Plaintiff injury,

                            F.. BREACH OF INSURANCE CONTRACT

       I   l,    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 Courrty 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.



                                                           J



                                                                                             MR     23I
 Specifically, Defendant has determined that Plaintiff s underiusured motorist claim is worth at

 least $ 25,000, as evidenced by its offer to pay $ 20,000 in addition to $ 5,000 previously paid as

 personal injury protection policy limits (see Exhibit   A). However, despite Plaintiff's demand for
 payment     of this undisputed portion of his underinsured motorist coverage (see Exhibit B),

 Defendant has refused to tender this amount. This failure and ref'usal to pay constitutes a breach

 of contract and demonstrates bad faith. Further, Defendant's f'ailure 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^

                         G. PETITION FOR DECLARATORY RELIEF

        12.      Based on the foregoing facts, and pursuant to the policy of insurance in force and

effect between Plaintiff and Defendant AAA Texas County Mutual Insurance Company at the

time of the wreck, Plaintifi seeks a declaratory judgment pursuant to Chapter 37 of the Texas

Civil Practice and Remedies Code construing the contract of insurance       ancl declaring   Plaintiff   s


rights and obligations under the contract. Specitically, Plaintiff seeks finclings that   (l)   Patricia

Tompkins is an underinsured motorist, (2) that Plaintiff is entitled to recover from Defendant

Plaintiff s damages resulting from the motor vehicle collision the subject of this suit, (3) that

Plaintiffs   damages   fall within the coverage afl'orded Plaintiff under the policy with Defendant,

and (4) a finding specifying the amount of damages, attomey's fees, interest, and court costs that

Defendant is obligated to pay.

       13.      Det'endant   AAA Texas County Muttnl          Insurance Company's conduct          is    a

proximate and producing cause of damages to Plaintifï, Such damages include, but are not

limited to, unpaid benefìts, medical expenses, physical impainnent, lost earning capacity,          and




                                                  4


                                                                                    MR232
 pain and mental anguish. Such damages have occurred in the past and are likely to continue in

 the future.

         14,     As a result of Defendant AAA Texas County lVfutual Insurance               Company's

 concluct, Plaintiff has incurred attorney's fees through trial and appeal.

               H. BRE.,\CH OF DUTY OF GOOD FAITH AND FAIR DEALING

         15.     Without adequate explanation or justification, Delendant AAA Texas County

Mutual Insurance Cornpany, by and through its âgents, breached its duty of good faith and fair

dealing by denying 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 Plaintiffl

Accordingly, Det'endant is in violation of 'fexas Insurance Codc, Chapter 542. et seq. Further,

Defendant has engaged in unfair claim settlement practices in violation of Texas Insurance Code

$$ 542,056, 542.057, and 542.058. As a proximate result of these actions, Plaintitt suffèred

damages, which al'e more    fully outlined herein bclow.

                                             I.   DAMAGES

        ló.      As a proxirnate result of the collision, Plaintiff Thomas Jackson sustained serious

personal injuries, specifically including neck, back, and head ínjuries and injuries to his body

generally. Plaintiff believes some of his injuries are permanent in nature and have had a serious

etfèct on his health and well-being. [n connection with such injuries, Plaintiff Thomas Jackson

has sufTered physical pain and mental anguish in the past, is suffering at the present, and, in all

reasonable probability,   will   continue   to suffer f-or the rest ol'his lifb. Fuúher, it has been

necessary    for Plaintiff, Thomas Jackson, to pay or incur      reasonable and nece.ssary medical

expenses in the past and in all reasonable probability   will incul reasonable and   necessary medical

expenses    fbr the treatment ol his ínjuries in the future. In addition, he has sustained physical



                                                    5



                                                                                       MR 233
impainnent in the past arrd wilt in all probabilíty continue to sustain physical impairment in the

futurc. Plaintiff Thomas Jackson sues f'or the recovery of past and fluture medical expenses, past

and future physical pain and mental anguish, antl 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.

         17,      In addition, Plaintiff is entitled to recover attorney's tèes and interest on the

amount of his claim at eighteen percent (1S%) per year pursuant to Texas Insurance Code                 $


542,060.

                                  J.   DOCUMENTS TO BE USED

         18.      Pursuant to Texas Rule     of Civil     Procedure 193.7, Plaintii'f intends   to use all

documents exchanged and produced between the parties including                     but not lirnited to

correspondence and discovery responses during the             trial of the above-entitled and numbered

cause,

                                     K.   PRAYER FOR RELIEF

         PREMISES CONSIDERED, Plaintiff requests that the Defendant be cited to appear and

answer and that, upon tìnal hearing hereon, PlaintitTrecover as t-ollows:

         a.   Actual damages within the jurisdictional limits of this Court;

         b.   Prejudgment and post-judgment interest as allowed by law;

         c.   Declmatory relief as outlined in the petition;

         d.   Costs of Couft and attorney's fees; and

         e. All otlier relief to which Plaintiff   may show himselfjustly entitled.




                                                      6



                                                                                       MR 234
                                                   Respectfu   lly submitted,

                                                   SLoAN,   Bacuy,    H,qrcHeR & Pennv L¡.w Ftnvt




                                                   M, RA                        R
                                                   State Bar No,24002243
                                                   rhatcher@slo anfirm. com
                                                ALAN        J. ROBERTSON
                                                State Bar No,24067952
                                                arobertson@ sloanfirm. com
                                                101 East Whaley Street
                                                Longview, TX 75601
                                                Telephone 903-7 57 -7000
                                                Facsimile 903-7 57 -757 4

                                                ATTORNEYS FOR PLATNTIFF


                                 CERTIFICATE OF SERVICE
                                     e'rd
       i hereby certify that on this J_ lay of September,2}74, a true  and correct copy of the
ftrregoing document was sent by certitied mail, retum 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, Balroo & CnR¡w, L.L.P
       Meadow Park Tower, l5tl' Floor
       10440 North Central Expressway
       Dallas, TX 75231




                                                M. RAYM
                                                ALAN J.                T'SON




                                               7



                                                                                    MR 235
APPENDIX TAB 7
                                                                                                    Electronically Submitterl
                                                                                                      1 l'l 6 /20 1 5 3:02:45 P l\A

                                                                                                 Grsgg County Dis(rict Clerk
                                                                                                 By: Debbie Kinney ,deputy


                                         CAUSE NO. 2014 - l36s _ A

   THOMAS JACKSON                                          $   IN THB DISTRICT COURT
                                                           $
   vs                                                          OF' GREGG COTINTY,
                                                           $                               Tf,XAS
                                                          $
   AAA TEXAS COUNTY MUTU.{L
                                                          $
   INSURANCE COMPANY                                           T88'h   JUDICIAL DISTRICT
                                                          $


                       PLAINTIFF'S MOTION TO COI}ÍPEL DISCOVERY

  TO TIJE HONORABLE COURT:

          Plairrtiff Thotnas .faokson fiIes this, his lVfotion ro Compel Discovery. plainriff
                                                                                              requests

  that this CoLu't sign an otcJer compelling Delenclant AAA Texas County
                                                                         Mutual lnsr¡rance
  Cornpany ("AA,A")      to fully   ans'uvet'/responcl   to PlaintitÏ Thomas    .fack¡-on's Fírst Request ttr¡

  Admissions. First Set of Interrogatories, and First Request lor procluction.
                                                                               In support thereof,
 PlaintitlLespectfully shows the Court the following:

                                             I.   TNTRODUCTION

         This lawsuit results fì'om a motor vehicle collisior, occurring on or about
                                                                                     June           I   z, 2013,
 in Glegg Courrty, J'exas, The collision occurrecl at the intersection of pliler. precise
                                                                                          Roaci and

 Juclson Road   in Lortgview. Texas. At that time, Plaintiff           Thornas Jackson was the dr.iver      of   a

vel:ìcle lawfully and safely traveling westbound on Pliler Precise Roacl, Jackson
                                                                                  stoppecl                      i.
obedicnce to a traffic   lighl at the intersection of Juclson Road and pliler precise Road, After

stopping' md in obedience to the tratTc light, Jackson continued traveling
                                                                           westbouncl into t6c

intersection of' Plì.]er precise Road ancl Judscrn Roa.d.               paÍicia lompkins was traveling
nofthbourrd on .Iudson Road when, with complete rlisregarcl for the satbty
                                                                           ancl welfare of other

persons or properfy, she disregarded the red light, struck the driver's
                                                                        side of Jackson,s vehícle,

and caused the collisíon made the basís of'this lawsuit.




                                                                                               MR 236
          When the collisiorr occllrted, AAA covered Jtckson with a personal aLrtomobile ínsurance

 policy. AAA's policy inclucled underinsruecl rnotorist coverage,                     .Iackson's injuries and

 damages exhausted the          limits of Ms. Tompkins's liability insurancc coverage, so Jackson now

 seeks to enforce against       AAA the itrsurance policy for which both hc    anct   AAA bargained and for

 which Jackson paid premiurns.

         A.4A has prevíously ottþred to pay Jackson $20.000.00 of its $100,000.00 unclerinsured

 motorist coverage in additíon to the $5,000.00 personrrl injury protection coverage             it previously
paid and the $30,000.00 of liabiliry insurance paicl by N4s, Tompkins's insurer Despite

J¿tckson's demand th¿rt        ¡\AA pay this t)mount   (ancl thc pru'ties continue   to Iitigatc the amount(s)

about which they disagree), AÂA let-r.¡ses to pay the $20,000.00 which it has ah.eacly oU'erecl.

        Discovery in this malter is governed by a Level 3 discovery control            plan. This mattcr has
not yct been set f'or trial.

            fl.   DBF'TCIENCIES IN DB¡-¡]NDAIíT''S DISCOVERY RESPONSES

        No pafty to this lawsuit disputes that the e vent.s listecl below occurred on                     the

con'esponding dates listed      ;




   o    Octobcl l7r 2014: Jackson's counsel servrs AAA with Jackson's First Request for
        Admissions. First Request for Procfuctiou, And Filst Set of intenogatolies.

   o   Novembcr 11r 20t{; AAA's couusel requests (ancl Jackson's counsel grants) the firstof
       fotlt' extcnsions of AAA's deadlìne to respoud to Jackson's written <iiscovery. The
       partics agree to extend 4.4.4's deadline to Novembe r 2s,2014. Exhíbit A.

   a   Novcmber 25, 2011: r\AA's counsel obtains its second extension. The deadline to
       ob.iectirespond/answer is norv Decemher
                                          10,201.t. Exhibit B.
   a   Dccember 10, 20L4: AAA's counscl obtains its third extension. The deadline to
       object/respond/answer is now December 17,2014. Exhibit C.

  a    Dcccmber 17,       2014 AAA's          counsel obiains     its tburth antl final extension.      The
       deadlÍne to ohr.iectirçspond/answer is now December          24,2014. Exhibit       D,
                                                       2




                                                                                                MR 237
             ¡     Deccntber   23,2014: AAA serves its Objections and Responses to plaintiffs First
                   Request tbr Admission, its Objections ancl Responses to PlaintifÍ's First Request for
                   Productìon, and its Objections and .A.nswers to Plaintiff s First Set of Intenogatories,

  Although AAA purports to answe¡ Jackson's discr-rvery.               it   r,vholly faìlcd to provide meani¡gful

  respclnses/answers, despite           having over iwo months ancl four extensions of its deacllíne to

  respond, For exarnple:

         '        In responsc to Jackson's 34 requests folproduction, AAA objectecl to all but 7 requests
                  and produced:

                      o The Texas Peace Officer's Crash Report                legarding the subject collision
                         þrevierusly produced by Jackson in discovery); an<I

                     o   Black-and-white photocopíes of t',vo digital photographs, presumably of rhe car
                         dliven by Jaokson when the subject collision occurred.

        ¡        ltr response to Jackson's 20 interrogafories. AAA objected tir nll but I inteuogatory and
                 provided strbstantive answers subject to its objections to only 6 interrogatories.

     '           AAA objected that Jackson's Requcst for Admission          14, which statcs "Based upon your
                 investigation(s) a:rd/or evaluatíon(s) of Plairrtiff's uninsurecliunderinsured moto¡ist cluim,
                 you have detcrmined that Plaintiff has sustained damage in excess of the sum gf (l)
                 PlaintifFs $5,000.00 personal iqju,y protection coverage and (2) Parricia I'ornpkins;
                 $30,000.00 limit of liability insurance," is a two-part question ancl is vague.

    o            AAA objected that Jackson's Request for Aclmissíon 17, which states that, "[AAA has]
                                                                                                 -28,2014,;
                 fàiled to pay any portion of the $20.000.00 that you offcled Plaintiff on April
                 is vague ancl argumentative.

    o         A.4A objectecl that.lackson's Request fol Admission 18, whìch st¿ttes that,,'plaintiffhas
             complied   with all conditions precedent to lecovering fiom the uninsured/underinsured
             nlotorist coverage coutained in your policy number TP401644335-1,"is vagge. Further,
             AAA responcls tlut, "fwlithout waiving this objectior and subject thereto, Detèncfant
             cannot a<imit or deny. Reasonable inquiry has been macle for this infbrmetion and the
             information known or easily obtainable is insufficient to enable Defenclant to adrnit or
             deny."

Suoh lackadaisir:al efÏorts to lesponcl to written discovery can hardly be considerecl to be in the

good tàith required by Tcxas Rule of            Civil Procedure 193,2(c), See      also [n re pat,kCiríes Bank,

409 S'W'3d 859,877 (Tex. App.-Tyler 2013, no                      pet).     Consequently. the    Cour   should

                                                          l



                                                                                                  MR 238
overrule   all of   Defèndant's objections and compel      AAA to provide fulI and           complete

responses/answers. Sec Tex. R. Clv, P,193,2(c) ("An objection.,,that is obscurecl by numerous

t¡ufounded objections...is u'aived unless the [C]ourt excuscs thc waiver tbr goocl cause shown,"),


                    TII.   FACTS NOT APPARßNT F'ROIU THE RECORI)

       Jackson attaches the tbliowing exhibits     to his Motion fbr the Court's    rcf'erence and

incotporates thern helein as though they were ser forth verbatim:

       Exhibit A              Novernber 17,2014, Rule I I Agreement extending AAA,s
                              deadline to object/respondlalrswer .lackson's written
                              discover-rz tequests untìl November 25, 2014.

       Exhibit B              Novenrber 25,2014, Rule I I Agreement extending AAA's
                              deadline to object/responcVanswcr Jackson's ',witten
                              discovery requer'ts until December 10. 201 ¿1.

      Exhibir C               Decenrtrer 10,2014, Rule   ll Agreemcnt extending AAA's
                              dcadline   to  objecti'respond/answer .lackson's written
                              discovery requests until Decembcr 17,2014.

      Exhibit D              Decernber 17,2014, Rule ll Agrcement extending AAA's
                             deadline to objecVrespond/answer Jackson's written
                             discovery (eqì"lcsts unti I December 24, 2014,

      Exhibit E              Det'cndant    AAA Texas        Count¡r Mutual      Insurauce
                             Cornpany's Objectíons and Responscs to Plaintilf' f'homas
                             Jackson's First Reqtrest f-or Production

      Exhíbir F              Defendant    AAA Texas Count¡- Mutual              lnsru¿rnce
                             Company's Objections and Answers to Plaintiff fhomas
                             Jackson's First Set of Interrogatories

      Exhibit G              Defendant    AAA Texas County Mutual               lnsurance
                             Company's Otrjectioris and Responsc.s to Plaint.iff 'Ihomas
                             Jackson's First Request for Adlni.ssions


                             V.   PRA.YETì FOR RtrLIEF'

     PREMISES CONSIDERED, Plaintifï Thomas .lackson requests that the Court hear and



                                               I



                                                                                   MR 239
  ovem¡le Defendant   AAA Texas County Mutual        Insurance Company's objections to Jackson's

  First Request for Production, First Set of fntenogatories, and First Request for Admissions,

 compel AAA to provide fr¡ll and complete answerVresponses to same, and grant all suoh other

 and ñ¡rther relief to which Jackson may show himselfjustly entitled.


                                               Respectfu lly submitted,




                                               M. RAY              TCHER
                                               Staûe BarNo.24002243
                                               rhatcher@sloanfi rm.com
                                               ALAN J. ROBERTSON
                                               State BarNo.24067952
                                               arobcrtson@sloanf ïrm.com
                                               SLoAN, BAcLEy, Hnrcuen & Prnnv Lnw Fnn¡
                                               l0l East Whaley Street
                                               Longview, Texas 75601
                                               Telephone 903-757-7000
                                               Facsimile 903-757-7574
                                               ATTORNEYS FOR PLAINTIFF



                                          (:

        I hereby cefifr that on this the      of January, 2015 atrue 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
      WALTens, B¡r.loo & Cunv, L.L.p.
      10440 North Central Expressway, Suite 1500



                                                                     M
      Dallas, Texas 75231



                                                                    D HATCHER
                                                    ALAN    J.   ROBERTSON


                                                5




                                                                                  MR 24O
                                                                       WALTERS
                                                                       BATIDO &
                                                                       CRAIN


                                            AusTlN   *   DAII-AS   l   DECATUR   *   HOusrOM

                                                                                                             CARI,OS A. BALIDO
                                                                                                                          parùrer
                                                                                                carlos.balido@wbclawfi rm,com
                                                                                                   (214) 347-8320 - Oirect Lina
                                                                                               Ql 4) 141 -8321 . Dirco,t Facsirnil




 Sloan, Bagley, Hatcher &,            pety Law Firm
 l0l East Whaley Street
 Longview, Texas ?5601

         Rer      cause No' 201-1365-A; Thomas Jackron vs. AAA'fexas
                                                                           counry Muruar
                  Ilsursyrcy company,In the r ggth Judiciar Disrrict,
                                                                      c.rgg couiíy, i**u..
                  Our File No. t4g3-77JZS

 Dea¡ Counsel;




       ff this
             accurately rcflects_our agreement,_please sign
                                                            below where indìcated and retum a
copy to me in accordance with Rule 11 of
                                           the Tìxas RuË, oicivil pro"eJui., T-l*"k you
your professional courtesíes with this                                                    ro,
                                       mafter,

                                                            Very truly yours,

                                                           /s/ Cailos A. ßatido
                                                                   A. Balido


AGREED TO BY:

                                        for Plaintiff


        M EA Do   w   pAR K
                              TowER   r..giå¡iiäiåiÏf ,::ffi ,t !.1,*, ro o               DALr-As,   rEXAs           I
                                        : ztc
                                      FAX      zcoffid¡tri,thï 4,t 4s,4lo5                                   7 523




                                                                                                                     ïútR   241
                                                                                               WATTERS
                                                                                               BALIDO &
                                                                        WBC
                                                                        ^,                     CRAf N
                                                                      I--                                    l^v1/
                                                                                               ^nonNEVS,\t


                                                                    -r
                                                                 AUSTIN       I   OATIAS   i   OSCATUR   *   HOUSTON


                                                                                                                                      CARLOS A, BALIDO
                                                                                                                                                   Purtner
                                                                                                                        oarlos, botido@wbclawfi nn,com
                                                                                                                            Ql41 341-8320 - Ditocf Lino
                                                                                                                       Ql4)   347-8321 - Di¡ect Facsi¡¡ile



                                                                                  November 25,2014


   Y   l!   E n t q.l I : -tÏ   ub   e
                                         f ,¡ l o t t ûitr t o í n l î r ¡ n. m n t
  Alan Rohsrtson
  Slonn, Bagley, Ifatchel' & pcny Law Fir,rn
  101 East Whaley Stlcet
  [,otrgvicw,'Iexos 75601

                 Re;            Cause No,201-1365-A;
                                Thomolt Jaclcson tt,ç, AAA Texat Counp Muluql                                    Iwurunce Contpany
                                Our Filc No, 1493.?7325

 Dear Mr, Robertsonl

               Irlcage ollow this lctter to confirm thot th
                                   utanee Company
                                                      ,   adnrissions, pl
                                                      ruld  lhis cunrport
                                                      agreement lo 0u'

              'tharù you fo. youl profcssional
                                               cooperation and courtesy in this                                          rnar.r.er,


                                                                                      Very truly your,s,

                                                                                      r\
                                                                                      (             |        -'\--
                                                                                      àr#l'
                                                                                        '--        n'aücro

CAB:wjh
i/l3lt012




                                          WATTERS BALIDO & CRAIN t,L,P,
                 MEADOW PARK IOWER 10440 NORTH CENTflAL EXPRES5WAY
                                                                      SUITE ISOO DALIAS/ TÉXAS 75231
                                   FAt<: 2L4.76o,1670 TrlEpHoNEi 2L4,7 49,Agos

                                                                            www,lhFff¡¡çrg



                                                                                                                                                t{tR 242
Novo¡lbc¡'25,201-4
Page2

AGREED TO BY:


,úL
Alun
Attoìrey fot Plaintiff




                         EXI{IBIT B



                                      MR 243
L2/ Lø/2ø1,4   L2t?5   2L4^?€¡ø-1,6?Ø At4-?EØ-1,6?ø                                                                                    t   zlz




                                                .-.                 WALTËRS
                                                                    BALIDO &
                                                wBc                 CRAIN
                                               :.                   ^,t
                                                                          lr)nñf Ys
                                                                                      ^r
                                                                                           tAW



                                            AUSTTN    i   o¡rus * oEc¡ruR * nousro¡¡

                                                                                                             CARLOS A, BALIDO
                                                                                                                             Pa¡tnrr
                                                                                                  carlos bal ido@wbolawlìnu,co¡n
                                                                                                      (21 4) 347 -8320 - Dircct Lino
                                                                                                 (2,l4) 34?-8321 - Di¡ect Facsirnil
                                                          Deccmbcr' 10, 2014

        Wa   Føcsinll¿:   903. 757. 7574
       M, Raymond H¿tcher
       Alan J, Robertson
       Shnn Bagley Hatcher & Pcny Luw Firm
       101 Eæl Whaley Sheet
       Longrricw, Tcx¡ls 7560 I

                Re;     Cr¡use No, 2lJl'1365-A ?l.rr,mat Jacksc,t'r vc. .44A Texat Conrtgt Murual huut an¿e
                        Conpany; In dre l88th Dishiot Çourt, Gregg Cuunty, Texas
                        Or¡r File    No. 1493-77325

       Dea¡ Counsel:

             Please allorv this letter to gerve ae a Rule l1 Agreenrent in the above-referenced matter.
      Spccificrrlly, you huvo ¡t8r'eÈd tu sxtunrl DEfbrrdant A.AA Texas Coulrly lr{utual Insurunr.re
      Compuny's deadlines to sel't,e reslronces and objections to Phinfiil's ttritteri disoovety requosts.
      Defend¿utt AAA Texus CounÇ Mutuul lrsulun¡¡e Company's l'üsponsu$ and obþctiorrs to
      PJilintill's Requost t'ot' Disclosures, !'irsl Sut of Intefogalories, First Ràc¡uest tix Adnrissions un4
      Firel Request for Production ¡ue norx due Decembe               t 17 , 2014.
               If this accurateltrreflEcts    our agreement, pleasc sign below where indicated ud return a
      copJrton:e in ûccordoncu with Rulc           ll of the Texas Rulcs o1'Civil Procedure, Thalk you t'ol
      your protêssional courtesies with this matter'.


                                                              Very tr-uly yorus,

                                                               C¿rl¿s.'1. ßuli¡lo
                                                             Carlos A. Balido


     ÀGREED TO BY:

                                            t'or PlnintitT

                                              WALTERS SALIoo & CRAIN t,L,P,
                IV,IE/\DOW PARK   TOWER 1U440 NONTfI CENIRAL EKPRFSSWAY StJIlE 15OO DALtÀ9, T€XAS 7523I
                                        Fex: 214,i6o, L67O IELEPHoNE: 214,749/g}s
                                                   www. wbcla wfl rm,com

                                                      EXt{tBtl c


                                                                                                                     NIR 2tt4
                                                              WALTERS
                                                          l
                                                          i
                                                              BATIDO &
                                                          I
                                                              CRAIN
                                                                                    t/\y/
                                                              ^lIORhtFYS      ^f

                                    AUSTTN   *   o¡rres   *   ogcnruR         *     Housro¡¡
                                                                                                            CARLOS A. BÀI.JDO
                                                                                                                       Putnor
                                                                                                carlos balido(@ wbc lawf irm, c on
                                                                                                   (21 4) 3 4':, -8320 - Diroct Lins
                                                                                               (214) 341 -8321 - Drsct !'acsi¡nil
                                                 Decernber 17,2014

  lãu Frcsinùl¿: pLJ. 757, 7i 74
  Al.¡n J, Rot¡elfson
  Sloan Bagloy Hatcher & peny Law Firm
  I0l B Whaley Street
  Longview, Tcxas 75d01

         Ro;     Cruse No' 20 l-1365-A; Tlrcnrat Jlc',tso¡¡ v¡, ,4AA Tex¿tt
                                                                                                Cioz.rrúy   lufult.taÌ Insttra¿ce
                 Company; In the lBBth DisttictCourt, Gregg County, Texas
                 Our File No. t493-77325

 Dcar Coullsol

        Ple¡rsÉ ullow this letter to sËrv-e as u Rule 1l
                                                         Agrcement in the übovc-refer'er¡oed r¡ufter,
 Specilically, you have agrccd to cxtend l)ct'endant -.q.t¿.
Company's de¡dlines to serve r€sponscs, ¿ulsrv€rs arrd
                                                                fu*s count¡,                  Insur¿nce     Mutt¡rl
                                                            objections to plalntifis wrítterr dir.o,,,,o1,
Itqucsts' Del'endiurt AAA Texas
                                    ,counly lvfufual Insu,'¡icu Compury's rùsporrses, **wor* nn,t
obleotions to Plaintiff s Request fot  Disclosurc, First Set of Intenogatori"ì, Firri Request for
Arlmissions mcl Filst Request f'or productiolr urr ¡ro]\¡ ¡iuE
                                                               Doccmb cr 24,2[14.

        If this ¡tccurtttelv retlects_o_ur rgreËruen! please sign belou, rvüule indicatud
                                                                                          md refurn ir
oopy to trre in ¡ccordance rvith Rule 1l of dre TLxas RuËs
                                                                  ul'Civil prosedure. Thonk jou t'or
yout professiorl¿rl courtesies wilh this nluttcr.


                                                      Very truly yours,

                                                   /t/.   shley Whøley
                                                      AshleyVv'hatley


AGREED TO BYI
                      Ala¡r J
                      Attonrcy ibr Pluintill



                                     WALTERS BALIDO & CRAIN             L,   L,P,
        MEADOW PARK TO\'!ER 1Û440 NORTH CENTRAL EXPRESSWAY
                                                           SUITE 15OO DALLAS, TEXÀ5 75231
                                Fex: 214,760. 1ri70   TETEPHoNE   ;   114,7 49.4EeS
                                           wËt{HËfi'60m



                                                                                                                 MR 245
APPENDIX TAB 8
                                                                                                                                                           Electronically Subm¡tted
                                                                                                                                                             S/1O12O15 3:46:37 PM

                                                                                                     I
                                                                                                                                                        Gregg County District Clerk
                                                                                                  - {.--                                                By: Kindell Whitley ,deputy

                                                                                                   }(
JOI-rN t). sLoÂN '+
t,,\(]lilitiN t;. BACLTY
                                                                                    SLOAN, I]AC LEY,                                                         ^t.r\NJ.
                                                                                                                                                                          R(Jt¡uftl'soN
                                                                                                                                                             C,ilì.SON R, tìUNtL
M. rù\YlvtOND tU\1'CÊl Dt(                                                         HATCI-ltrR ¿i¿ PERRY                                                      .lUSl'l N r\. Stvl l'l'l.t
(ìL.tiNN A. PlìßRY'+
                                                                                       lÂw f:lltñl                                                           (il.r\l' l(. ZIìt.ltS I'
'll¡,¡,lt r¡rrli¡l llr,'rul lrj¡¡¡r I,'¡l lr$
,)l ¡il,'r,l   í1, ,r¡l                   ¡l,l!.x-k!
                          ',t   I ¡,,r1
                                                                                        l.()N(;vl t:\\i .   I t c)   Us'r'oN



                                                                                   Septembel 10, 2015

           VÍil E-filins
           nnd Focsíntile 2 I4-760-1670
           Mr. Carlos A Balido
           WnlteRS, Bnuoo & CRRIN, L.L.P.
           Meadow Pa¡k Towers l5rlt Floor
           10440 North Central ExpresswaY
           Dallas, Texas 75231

           Re:                        Thomas Jqckson v. AAA Texcts County lululual Insurance Contpnny; Cause No:
                                      2014-1365-A; In the l 88th Distlict Cotr¡t of Gregg County, Texas.


                                                                               NOTICE OF }IEARING

           Dear Mr. Balido:

                                      Please be aclvised that a heariug on    Plaintilß' þIotion to Compel Discovery is scheduled
           Thursday. October                           l.   2015 @ 1:00 n.m., in the 188th Judicial District Court of Gregg Courty,
           Texas.

                                      If you have any questions, please fbel [r'ee to coutact our office.




                                                                                                              Rose Feazell
                                                                                                              Paralegctl to Glenn A.         Pety and
                                                                                                              Jttstín A. Smith

               Irf
               3392.OOl JACKSON

               Viø        E-filins and filcsímile (903)236-8603
           Darvn Callow
               l88tl' District Court
           Gregg County, Texas



                                                                          rrl i r,i', i,ri,r .-rr,rr i,,,,,,1,., i,, . ,í |il
                                                       lrir,rt t)(ìì--i       rìlJr i : 1,,¡,,i1 ti;',        _i',, .,., .i,!,!ìrjrL,{¡,ri

                                                                                                                                                   MR 246
APPENDIX TAB 9
                                                                                            Electronically Submitted
                                                                                              101112015 9:48:35 AM
                                                                                         Gregg County Ðístrict Clerk
                                                                                         By: Debb¡e Kinnoy ,deputy


                                    CAUSE NO. 2014     -   13ó5   -A
 TTIOMAS.IACKSON                                  $    IN THE DISTRICT COURT
                                                  $
 vs.                                              $    OF'GREGG COUNTY, TEXAS
                                                  $
 AAA TEXAS COUNTY MUTUAL                          s
 INSURANCE COMPA¡I-Y                              $   188Ih   JUDICIAT, DISTRICT

             PLAINTIFF'S R.ESPONSE TO DEF'ENDANT'S EMERGENCY MOTION
                                 TO RESET HEARING

 TO THE HONORABLE COURT:

         Plairrtiff Thomas Jackson files this, his Response to Defèndant's Emergency Motion to

 Reset the Hearing on Plaintiff's Motion to Compel and.       in support thereof, would respectfully

 show the Cou¡t as follows:

                                 I. ARGUMENT & AUTHORITIES

         As the basis for its emergency motion to reset the hearing on Plaintiffls motion           to

compel, Defendant argues two bases: tìrst, that they were not timely served with notice of the

hearing; and, second, they have not had sufficient time to respond. ó'ee Def's Mtn, pg.    I-2. On
July 15,2015. Plaintiff sent a letter, enclosing his motion to compel, and seeking to meet and

confer with Defendant on its discovery defìciencies. Ses Ex.           A, Letter Dated 7/1712015.
Following this letter, PlaintifTattempted to contact Defendant th¡ee times, on July 30, 2015, July

31,20[5, and August 3,2015, to confer on the discovery deficiencies, without avail. S¿e Plt's

Mtn to Compel, Certificate of Conference, Plaintiff f,rled its Motion to Compel on August 7,

2015, in the hope that the fìling might prompt Defendant to confer on the motíon, supplement its

discovery, or at least respond. It did not. Defendant's second basis, that it has not had sufficient

time to responcl, is without merit; Defendant has known the contents of Plaintiff s Motion to


Plaintiffs
         Response to Defendant's
Emergency Motion to Reset Hearing                                                             Page 7



                                                                                     Ì{tR 247
 Compel since July 15, more than sixty days prior to the hearing, and that Motion has been on file

 with the Court, and was served on Defendant, on August7,2015, over fifty days prior to the

 hearing.

          On September 10, 2015, approximately trvo months after sending Plaintiff s initial meet

 and confer letter, ancl over a month after filing the motion, Plaintiff noticed the motion for

hearing on October 1,2015. Defendant claims that       it "received    less than three days' notice prior

to the hearing and has not had sufficient time to obtain and file evidence in support of              its

Response to    Plaintifls Motion to Compel."   Seø   Def s Mtn, pg. 1. The notice of hearing was e-

filed and, thus, should have been served on Defèndant electronically through the e-filing system,

if Defendant maintains an e-filing account   as it is required to do   in Gregg County. Understanding

that tech¡ical errors may occrtr, however, and presuming that they did not receive service

through the e-filing system, Plaintitïa/so served them with the file marked copy of the notice        of

hearing by facsimile, a copy of which, along with the fax confirmation sheet, is attachecl hereto.

,9ee   Ex. B, Notice of Hearing and Fax Confirmation, Thus, despite its protestations to the

contrary, Detèndant has been provided notice         of the hearing far in excess of the       three-day

minimum.

         It is understandable that, from tíme to time, thlough innocent místake,           oversight or

tluough no fault of its own, a party will not be able to comply with or meet certain deadlines. In

such instances,   Plaintiff is inclined to accommodate opposing counsel and, by agreement, permit

relief. Defendant's eleventh hour cry for delay on    bases that have no merit, however, is the latest

in a pattern of conduct which has caused intractable delay going back f'ol almost a year.In the

past, Plaintiffs counsel has, consistent with its practice, provided repeated accorìmodations.




PlaìntÍffs Response to Defendant's
Emergency Motlon to Reset Hearlng                                                                 Page 2



                                                                                         MR 248
 Those accommodations have not prompted Def'endant's dilatory conduct to be followed with any

 semblance of diligence.

          On October l7'h, 2014, PlaintitT sent his first set of Interrogatories, Requests for

 Production, and Requests for Admission. Defendant's responses were due on November 16,

 2014. OnNovember 17,2074, after having failed to comply wíth its deadline, Plaintitïprovided

 Defendant an extension to respond to discovery, moving the deadlìne to December      l,   2014. See

 Ex. C, Rule 11 Agreements. On November 25,20t4, Plaintiff provided a second extension to

Defendant, moving the deadline to December 10, 2014. See id. On December 10,2014, Plaintiff

provided a third extension to Defèndant, moving the deadline to December 17,2014. See id. On

December 17,2014, Plaintiff provicled a fourlh extension, moving the deadline t<l December 24,

2014. See id.

         On December 23,201,4, after more than sixty days and four extensions, Plaintiff finally

received Defendant's responses to discovery, which were sorely deficient. The parties proceeded

with certaín discovery and motion practice, On April 22,2014, Defendants' called to confer on

Plaintiffs Motion to Quash certain unlimited depositions on written questions to Plaintifls

medical providers. During that conversation, Defendant expressed its interest to engage in early

mediation to avoid íncurring substantial litigation costs. The parties resolved their differences

regarding the depositions on written questions and Plaintiff tabled his motion to compel began

attempting to schedule mediation. Plaintiffls counsel circulated fourteen (14) available dates in

June and July. Defendant was unavailable     for all of them. At Defendant's request, Plaintiff    s


counsel circulated twelve (12) additional available dates in August and September.

         On June 24, 2015, after more than two months of attempting to scheclule mediation,

Defendant, despite its expressed desire for early mediation, finally provided a mediation date. In


Plalntiff s Re spo ns e eo D efe nda nt's
Emergency Motlon to Reset Heoring                                                            Page 3



                                                                                  MR 249
 the four month window of time for which Plaintiff had provided available dates, Def'endant

 selected the very last available date    of   September 29,2015. This course     of dilatory conduct,

 which became apparent on June 24, 2015, is what prompted Plaintiff to complete his motion to

 oompel and begin the process of attempting to confer on July 15,2015.In the more than sixty

 days ftrllowing that letter, despite repeated attempts to confer, the flrling of the motion, the filing

 and service of the notice of hearing (again, by two separate means), Defendant has been as

 unresponsive to Plaintiff s attempt to diligently litigate this case as it was in Octobet of last year,

 when Plaintitïprovided f-our separate extensions to Defendant's deadline to respond to the vety

discovery that forms the basis of Plaintiff's Motion to Compel.

                                     I. CONCLTJSION AND PRAYER

        For the reasons expressed above, Plaintiff respectftllly requests that the Court deny

Defendant's Ernergency Motion to Reset the Hearing on Plaintiffls Motion to Compel, and for

any and all other relief to which Plaintiff rnay be justly entitled.


                                                 Respectf ully submitted,
                                                 SLoAN. BAcLEy, HRrcu¡n& Pennv Lnw           FInv


                                                 /s/ Justin A. Smith
                                                 GLENN A, PERRY
                                                 State Bar No, 15801500
                                                 qperrv@,sloanfirm, com
                                                 JUSTIN A. SMITH
                                                 State Bar No, 24068415
                                                 jsmith@sloanfirm.com
                                                  101 East Whaley Street
                                                 Longview, Texas 75601
                                                 Telephone 903-757-7000
                                                 Facsimile 903-75'1-7574
                                                 ATTORNEYS FOR PLAINTIFF




Plointìffs Response to Defendunt's
Emergency Motion to Reset Hear[ng                                                                Page 4



                                                                                        MR 25O
                                  CERTIFICATE OF SERVICE

       I hereby certify that on this the l't day of October, 2015 a true and correct copy of the
foregoing document was served in accordance with the Texas Rules of Civil Procedtre on the
following counsel of record:

      Mr. Carlos A. Balido
      Wllrens, B¡ltoo & CRerN, L.L.P.
      10440 North Central Expressway, Suite 1500
      Dallas. Texas 7523I

                                                   /s/.Iustin A. Smith
                                                   GLENN A. PERRY
                                                   JUSTIN A. SMITH




Plølntiffs Response to Delendant's
ßmergenq Motion to    Reset Hearlng                                                       Page 5



                                                                                 tutR   25t
                                                                                 *
JOHN D. SLOÂN r+
LAUR.EEN        1¡,   BACLEY
                                                                      SLOAN, BAGLEY                                            J, RYAN FOWI.eR,
                                                                                                                               A¡J|Nr. ROBERTSON
M. RÂYMOND HATCHER                                                   HATCHER & PERRY                                           CA.RSON R- RUNGE
GLENN.4. PERRY'+
'llo¡nl C<nilìrrl |cronal lnir¡,1 rirl t:w                                   LAW     FIRJV1                                    JUSTIN À SMTTH
,\roo¡r¡l tìn,rrrl ¡rf T-i¡l Âri,oc¡rr
                                                                                                                               CIJ\y R zRr   RST
                                                                        LONGVIEW - HOUSTON

                                                                                 July 15,2015




             Il'nLTERs, B,tttoo & CRAIN, L. L. p,
             Meadow Pa¡k Towers l5rh Floor
            l0M0 North Central Expressway, Suite 1500
            Dallas, Texas 7SZ3l

                           Re:               Thomas Jøckson v, AAA To,s county Mutuar Insurance
                                                                                                     compøny;cause
                                             No. 2014-1365-A; In thc lSgth D¡strict court of Gregg count5r,
                                                                                                            Texas
            Dear Mr. Balido:

                          Enclosed please find PlaintifPs Motion to Compel discovery
                                                                                     from Defendants. This letter
                                                                     confer requirements under the Texas Rules of
                                                                                         granted four extensions     to their discovery
                                                                                         s to PlaintifPs discovery and have obscured




                If you wish to conference further on Defendant's responses to discovery, please
                                                                                                    feel to
        contact me prior to July 31, 2015. please note, however that
                                                               ,     I will be out of the office from July
        2l through July 29,2015. If I do not hear from you by July 3r
                                                                       ,2015,I wÍll be forced to file the
        enclosed Motion to Cornpel.




      JAS/cfm
      Enclosure
      3392.00I JACKSON




                                                          10I Easr \lhaley Srreer, Longview, To¡as 75601
                                                Phone 901.757.7000  | Fasimi le 903,7 57,7 574 | www,sloanÊrrm,com
                                                                      EXHrBrl A
                                                                                                                         MR 252
                                    CAUSE NO.2014           -   1365   -A
  THOMAS JACKSON                                     s      IN THE DISTRICT COURT
                                                     s
  v3.                                                $      OF GREGG COUNTY, TEX.AS
                                                     $
  AAA TEXAS COUNTY MUTUAL                            $
  INSURANCE COMPANY                                  $      TSEIh   JUDICIAL DISTRICT

                     PLAINTTX'F'S MOTION TO COMPEL DISCOVERY

  TO THE HONORABLE COURT:

         Plaintiff Thomas Jackson fïles this, his Motion to Compel Discovery. Plaintiff requests

 that this Court sign an order compelling Defendant AAA Texas County Mutr¡al [nsurance

 Company ("ÀAA") to fully answer/respond to Plaintiff Thomas Jackson's First Request for

 Admissions, First Set of Interrogatories, and First Request for Production. fn suppof thereof,

 Plaintiff respectfully shows the Court the following:

                                          I.   INTRODUCTION

        This lawsuit results from a motor vchicle 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 lawftrlly and safely traveling westbound on Pliler Precise Road, Jackson stopped in

obedience to a traff,tc 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   ofthis lawsuit.




                                           EXI{IBIT A
                                                                                              MR 253
            When the collision occuned,      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 Iiability insurance paid by Ms.

 Tompkins's insurer. Despite Jackson's demand that AAA pay thís amount (and the parties

 continue   to litigate the        amount(s) about which they disagree),      AAA   refr¡ses   to pay the
$20'000.00 which it has already deterrnined 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

becn setfor trial on February 8,2016.

             II.   DEFICIENCTES IN DEFENDANT'S DISCOVERY RESPONSES

        No pafy to this lawsuit disputes that the events listed below occuned on                     the

corresponding dates listed     :




   o   October 17, 2014: Jackson's counsel serves AAA with Jackson's First Request for
       Admissions, First Request for Production, and First Set of intenogatories,

   o   November 17r 2014: AAA's counseJ requests (andJackson's counsel grants) the first of
       four extensions of AAA's deadline to rr spond to Jackson's witten discovery. The
       parties agree to extend AAA's deadline to November 2sr2014, Exhibit A,

   a   November 25r 2014: AAA's counsel obt¿ins its second extension. The deadline to
       objecVrespond/answer is now December 10,2014. Exhibit B.

  a    December lo, 2Dl4 AAA's counsel obtains its third extension,                   The deadline to
       objeclrespond/answer is now December 17,2014. Exhibit C.

       December 17,2014: AAA's counsel obtains its fourth and final extension. The deadtine
                                                     2




                                               EXHIBIT A
                                                                                               MR 254
                  to objecvrespond/answer is now Decernber     z4rz0l4. Exhibit D.

            '     I)ecember 23, 2014: AAA serves its Objectíons and Responses to plaíntiffs Fi¡st
                  Request for Admission, its Objections and-Responses to Plaintiffs First Requesf for
                  Production, and its Objections and Answe¡s to Plaintiffs First Set of Intenogatories.

   Although AAA purports to answer Jackson's discovery, it wholly failed to provide meaningful

   responses/answers, despite having over            two months and four extensíons of its deadline to
  respond. For example;

            r    In response to Jackson's 34 requests for producfion, AAA objected to    ¡ll but 7 requests
                 and produced:

                     o   The Texas Peace Officer's Crash Report regarding            the subject collision
                         (previously produced by Jackson in discovery); anã

                    o    Black-and-white photocopies of mo digital photographs, presumably of the car
                         driven by Jackson when the subject collision occurred,

        '       In response to Jackson's 20 intenogatories, AAA objected to alt but I intenogatory and
                provided substantive answers subject to its objections to only 6 intenogatories,

     o          AAA objected that Jackson's Request for Admission 14, which states "Based upon your
                investigation(s) andlor evaluation(s) of PlaintifPs uninsured/underinsured motori'st cläim,
                you have determined that Plaintiff has sustained damage in excess of the sum
                                                                                                     of (l)
                PlaintifPs $:,0.00
                                   99 personal injury protection cou"rage and (2) Parricia Tompkins;
                $30,000.00 limit of liability insurance,'tiÍi a two-part qurJioo and'is vague.

                As4v{ objected that Jackson's Request for Admissíon 17, which states that, ,,[AAA
    '                                                                                               hasl
                failed to pay any portion of the $20,000,00 that you offered Plaintiff on nprl)A,2014,;
                is vague and argumentatjve.

    o       AA\A objected that Jackson's Request for Admission 18, which states that, "plaíntiff
                                                                                                 has
            complied with all conditions precedent to recovering from the uninsured/underinsured
                                                     y number TP4016443353,"is vague, Further,
                                                     this objection and subject thereto, Defendant
                                                     y has been made for this information and the
                                                    s insufficient to enable Defendant to admit or
            deny."

            Such lackadaisical cfforts to respond to   witten discovery can hardly be considered to be
in the good faith required by Texas Rule of Civil Procedure 193.2(c). ,See also In re park Citíes


                                                       3




                                                 EXHIBIT A
                                                                                               MR 255
 Bank,409 S.w.3d 859,877 (Tex, App.-Tyler 2013, no pet,). Consequently, the cou¡r should

ovem¡le   all of   Defendant's objections and compel        AAA to provide full and       cornplete

responseVanswers,    ,See   Tex. R. C¡v. P. 193.2(e) ("An objection,..that is obscured by numerous

unfounded objections.,.is waived unless the [C]ourt excuses the waiver for good cause shown,',),

                   III. FACTS NOT APPARENT FROM THE RECORI)
       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 I I Agreement extending
                                AAA's deadline to         object/respond/answer Jackson's
                                written discovery requests until November 25,2014.

      Exhibít B                -       Novernber 25,2014, Rule I I Agreement extending
                               AAA's deadline      to    objeclrespond/answer Jackson's
                               written discovery requests until December 10,2014,

      Exhibit C                -      December 10, 2014, Rule I I Agreernent extending
                               AAA's deadline to        objecVrespond/answer Jackson's
                               w¡ifen discovery requests until Decembet 17,2014.
      Exhibit D                -       December 17,2014, Rule I    I Agreementextending
                               AAA's deadline to       objecVrespond/answer Jackson's
                               witten discovery requesfs 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 fuiswers to Plaintiff Thomas
                              Jackson's First Set of Intenogatories

     Exhibit G                -      Defendant AAA Texas County Mutual Insurance
                              Company's Objections and Responses to Plaintiff Thomas
                              Jackson's First Request for Admissions


                              V. PRAYERFOR RELIET'
    PREMÍSES CONSIDERED, Plaintiff Thomas Jackson requests that the Court hear and

                                               4




                                         EXHIBIÎ A
                                                                                     MR 256
   ovem¡le Defendant   AAA Texas County Mutual      Insurance Cornpany's objcctions to Jackson,s

   First Rcquest for Production, First Set of Intenogatories,
                                                              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 himselfjustly
                                                             entitled,

                                              Respecthrlly submitted,
                                              SLoAN, BAcLEy,   Hnrcnen & pennv L¿w F¡nu


                                              /s/.Iu.ctin Smtth
                                              GLENN A. PERRY
                                              State Bar No. 15801500
                                             qperrv@sloanfirm.com
                                             JUSTIN A. SMTTH
                                             state Ba¡ No. 24069415
                                             ismith@sloanfirm.com
                                             l0l East Whaley Street
                                             Longview, Texas 75601
                                             Telephone 903-757-7000
                                             Facsirnile     903-757-7574

                                             ATTORNEYS FOR PLAINTIFF



                               CERTTFTCATS OF SDRVIqE

        I hereby certifi that on thís the
                                          lsth day of July, 2015 a true and conect copy of the
foregoing document was served in accordance      with the'iexas Rules of Civil procedwe on the
following counsel of record:

     Mr. Carlos A. Balido
     Wnr,rERs, B¡r.loo & CRn¡N, L.L.p.
     10440 North Central Expressway, Suite 1500
     Dallas, Texas 75231



                                                   GLENN A. PERRY
                                                  ruSÎN A. SMITH



                                              5




                                      EXHIBIT A
                                                                                    MR 257
    ovemlle Defendant AAA Texas County Mutual Inswance 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 fi¡¡ther relief to which Jackson may show himselfjustly entítled.


                                                 Respectfirlly submitted,
                                                 Slonw, B,a,cLEy, HnrcHgR & pennv      L¡w Flnu

                                                /s/ Justín A. Smith
                                                GLENN A. PERRY
                                                State Bar   No, 15801500
                                                gpeny@sloanfirm,com
                                                JUSTTN A.    SMITH
                                                State Bar No. 24068415
                                                ísmith@sloanfirm.com
                                                l0l East Whaley Street
                                                Longview, Texas 75601
                                                Telephone 903-757-7000
                                                Facsimile 903-757-7574
                                               ATTORNEYS FOR PLAINTIFF



                                  CERTIFICATE O[' SERVICE

-       I hereby certify that on thís the l5th day of July, 2015 a true and correct copy of the
foregoing docr¡nent was served in accordance with the Texas Rules of Civil proceduró on the
following counsel of record:

       Mr. Carlos A. Balido
       WnlreRs, Bnuoo & CRnn, L.L.p.
       10440 North Central Expresswey, Suite 1500
       Dallas, Texas 75231



                                                      GLENN A. PERRY
                                                      JUSTIN A- SMITI{




                                                 5




                                         EXHIBIÎ A
                                                                                        tutR 258
lorfN     D.   sroANJR '+
                                                                                            )k
I.{UR8INF, EAGI.SY                                                           SLOAN, BAGTEY,                                                Âr.Aìrr. RoBERIIiON
                                                                                                                                           C.{8SONR, RUNGE
M. NÂTMONDHATCI{ER                                                          HATCHER & PERRY                                                tusl'tNn"sMrTH
GLB{NÁ" PERRY'+
'l!¡d Csifli I'Fo¡                lrtl                                                LAW FIRM                                             CIJIY R ZG¡.8ST
                         lnfoqr          lew
.ñ-úlqdl lo¡r{ of Trü¡
                         ^¿@y                                                   TONGVIry.HOUSTON


                                                              FACSIMILE TRANSMITTAL LETTER

                                                                                      July 15,2015


                             TO:                    Carlos A. B¡lido
                             COMPAhIY¡              Yallers Bofldo & Crain, LLP
                            FAX:                   (2t 4) 1 60-167 0 or              Ql4,   341   -8321


                            fiRoûr:                Claudia Fuentes-Mertinez
                                                   Legal Secretøry þ fusün,4. Smíth

                           RE:                     Thomas føchson               v.   &4u4 Tcxøs County Mutua| Insaronce Company
                                                   3392-00r

                           ORIGINALMAILED: Ycs, Regular                                U.S. MaÍt

                           NI.IMBER OF pAcES, INCLITDING THIS COVER LETTER: 7

                          Ple¡se sec ¡ttached.

                          rn      TntxsulssloN rs NoT coMpLETE,                                   PLEASE CALL (903) 757-?000.

                          CONX'IDENTHLITY NOTICE: Thls fôcrimllo tr¡nsmigsion (and/or thc documcnb
                          accomprnylng ll) may contaln confidonti¡l informstlon belonging to lhe scnder whicù is prolcctrd by
                          tho rltorney-client privlloge. Tho inform¡tlon i¡ intendeú only for the use of the indlvldorl or gntlty
                          n¡med obove. lf you rre not thc intcnded rociplcnt, you ¡re hercby notified thrt eny dlsclosuro,
                          copying' di¡tribufion or tho toking of rny rctlon in roll¡ncc on (he contcnk of lhí¡ lnform¡tlon is
                         un¡uthorized          rnd strictly prohibitcd. lf you have rocclved thie tr¡n¡misslon ln srror,          please
                         immcdlotely notlfl us by tclcphonc to arrunge for lhc roturn of the documcnb.




                                                          I   0   I   tast V4rde¡ Strecr, Long,ior','[c"-as 7i60   I
                                                Phone 903,757.7000 | hceinríla 903.757.757 4 |            rlsrrtlonnfi rrn.corn
                                                                               EXI{IBIT A
                                                                                                                                  MR 259
07/L5/20r5         ffED 13:14                      FAX 903 757 8750                                                 Sloan Bagley gatcher                                        Øloor

                                                                   r a r ** * **   a   *   *irt**t    I t t t t t ttt   Ð

                                                                   *rr     FN( MttLrr Ex              REPORT       rri
                                                                   *   rrt rt*l*rr****t              *t*f t******




    JOB    NO.                                       0620
    DEP[.        TD                                  33920 01
    Pes.                                             7

    fX INCO¡@LEIE
    SRAI¡SÀCÎION 0K                                 12I{7601670

   ERROR                                            :::::_o""'



      lQtlN      D. SLOÁNJR. '+
                                                                          SLOAN, BAGLEY,                                                                    ÂIJINJ, IOEERßON
      i^rrnB8¡Ín DÀcLEy                                                                                                                                     c^fisoN n, RUNcs
      M, Î/TYMOND tû{ÎC}mR                                               HATCHER & PERRY                                                                    JUSflNrl. SM¡I'H
      OI¡NN À PDRIY'+                                                                                                                                       cr,aY R,   z[r¡sr
      'lo¡td ü¡llî¡d ft¡c¡¡l lnlury'hltl    ltu                              tAW FIRM
                 ñord ol 'l1t¡l                                              I.ONGVIBV. HOUSTON
      'Nrlutrl
                                  ^'ltsry


                                                                FACSTMILE TRANSMITTAL LBTTER

                                                                                   July 15,2015


                                     TO:                 C¡rlos A. Bslido
                                     COMPANY:            Wnlte¡s Snlldo & Cmln, LLP
                                     FAX:                (2141760-t670 or (214 ) 347-8321


                                     Í'ROM¡              Cl¡udin f,'ucntes-M¡rllnez
                                                         Legal Secrutary to lustln A. Smlth

                                    RE:                  Thomas Jockson v. ,4,4,4 Teras County Mutuol Insurance Company
                                                         3392-001

                                    ORIGINAL MAILED: Yw, Rogular U.S. M¡il

                                    NUMBEROP PAGES, TNCLUDINC TIIIS COVER LETTER:7

                                    PleRso ¡ec    ¡tlnched.

                                    rF TRANSMISSTON IS NOT COMPLI¡TE, PLEÀSE CALL (903) 757-7000.

                                    CONFIDENTIALITY NOTICE¡ Thlc f¡c¡lmllo trnn¡mlrslon (nnd/or lio documonar
                                           ll) niy conarh confldonllal lnlbrm¡tlo¡ bolor3lng lo lho randor wbleh l¡ protccl.d by
                                    rccomptnylng
                                   Ito rttornry-ollenl prhllo¡c. Th¡ lnfornntlon l¡ lntondd only for lh¡ u¡o of lho lndlvldt¡rl ot .nl¡ly
                                   n¡nrü rbova. lf you rrc not th. lahndrd             r.clelcoa, you      rrc hü.by        nollflüd lhîa   iny   dJrolocurc'
                                                      0r tho lîllnl ¡f rny rcllon ln rollrncc on lho conlrnlr o? lhl¡ lnlormrtlon l¡
                                   copyln3, rllclrlburlon
                                   unruthorl¡cd rnd strlctly prohiùltcd. lf you hnvo rccelvod thls trnnrmlulon ln orrort ploirc
                                   lmñ0dl¡toly noll$ ur by tolophonc to trrnngc for llto rolurn olths documcntt.




                                                                            EXHIBIT A
                                                                                                                                                         MR 260
                                                                                                                                Elrclrcnlcalþ Subnlltrtl
                                                                                                                                  e/tü2016 3:4037 PM
                                                                                                                              Gllgg ComU OlciddClerk
                                                                                                                              Ð:   Klndell Wttltlcy   depuf
                                                                                     *
JOHN      D. $l'O¿11{'r
                                                                         SLOAN. BACLEY                                             ,ü!ÂNr, ROI¡ERTSON
uun¡4b¡ r, t,tc¡llÌ                                                                                                                QITBON R. ITI'IVGE
Àt n^lltfoND¡{AlcHßn                                                    HATCH ER & PERRY                                           JUSTINA, Sï{tTt{
'cr¡htl¿nÉinv.+                                                                   I.AW FIITM                                       cl.^tn. zÉ,usr
'¡¡ú   CarlA¡      ¡Þ{        l.Í¡7 Îrùt   lil
aN¡¡{d    ño¡r'l   uf'trt¡l   Âri.*¡t                                        t.oNGVlË\r? - HOUS'ION



                                                                        SePtember 10,2015


         YlsE llllna
       and    Ft$lnilc 2H'760'1670
              Culp¡"ABi¡lído
         Ir,fr.
         W-'¡¡tgRs,B¡t-Do & GRôtw' L.L.P.
         tr4oadow Pqrk Tgwers lltr Floor
       1,0440, Ñç4b,Gçntrul ExPresewaY
       Dalfre,,Tem¡'15231

       Re:                        Jqclxonv. ,ù4íTexas County Mulual lnntrance Company; CauseNo:
                              Thomas
                          20l4rl 865.-A; In the [88û Distict Court of &egg County, Tsxas.


                                                                     NOTTCE On ITEARINg

       DçuìÍr. Balido:

            Flense b.e adviscd that a hea¡ing on Plaintiffs' Motio¡t to Compel
                                                                                Discov9.ry ls schedulsd
                                                            ø
       ftunÈsll gcloter f. AILIS f¡00 n-,m,. in the l88tl¡ Judicial.Disbict    €or¡¡t of GtQgg Counff'
       Tèxas,

                          Ifyou haye any questíons, pleæe fcel fice to cootact our ofhce.




                                                                                             Rosc Feazell
                                                                                            Porolegal lo Glenn A, PerrY and
                                                                                            fusünA. Smlth

         hf
         3392.001JACKSON



         Itßü DJ.stíct corut
       Orogg'CorrntV; Texas



                                                              l0l Frrl Vhrrlcy Srrccr, l.urrgvíurr,'fc¡r¡ 7t6Ol
                                                 Itholç l)03.717.7(100 l l:ncrinrils !01.75T,757{ l rrrnr.slt:rnfirrrr,rorr




                                                                        EXI{tBrl B
                                                                                                                              MR      26I
091t012015 rEU l51 52              FAx 903 75't 7574                                                 Sloan !aw Fír¡¡                                        üoor
                                                       *r   a   rt   *rIr   tf,r * t I È **tt tt   rI*r   I
                                                       .tt       FN{ üuLrt          îx   Rf,¡roRr    r*r



    .loB üo.                         0s9t
    DEE8, ID                         3392001
    PGg.                             2
    ÎX f¡tcoupr¡¡lE
    TnAlrgÂc!Îoll or                 l,2Irr60r670
                                     9032368603
    ERNOR




                                               FACS¡MTLE IIIANSMTTTAL LET.TDR

                                                                     Soptorn[cl f5,2015


                  TO:      Cnrlos A, Bnlido
                  COMPANY: jlolta¡s Bnlhlo & Crnhb LLP
                  IIAX:    (2141160-l(u'0

                  TOt      Dnwn Cnllow
                  COMPANY: !8dþ Dl,çt¡ict Ctnrl, Gregg Coutly, Tuns
                  FAX:     (903)23G8603


                  FROM:               Roso Fonuoll
                                      Podagnl to Glsnn Å. Peny øul
                                      fnsiln   Ã   Suúth

                  RD:                 Thoant fockson v. ¡lÁÁ lltxas Conngt Mulnnl                                                   Conpnny
                                      3392.00r

                  ORICINAL MAlLltrD: No¡ fnehrllo only¡

                  NUMBER Otr PAGDS' INCLUDING'fHlS COVER LGTTER: 2                                                     I


                                                                                                                   I
                  Plonsc sce nltrchctl,     Phrlntiffs Nollco of Honring                  on lts Motlon to Compel
                  Dhcovory.                                                                                        ¡



                  rlr TRANSMIÍ¡SION tS NOT COMPLDTE, pLnASD CArL (90ti ?57-7000.
                                                                                                                   i

                                                   NOTICIX¡ Tlrl¡ lht¡lmllo lr¡nsnrbslon                                            lho   dooun¡oul¡
                 oroompnnyln¡ ll) mny conhln collhlonllnl lnlb7rrnll0r lrôlonglng lo lho                                   whlcl¡   l¡ prolcclcd òy
                 lho nllomo¡ollonl 0rlrlto¡0, TÛo ft¡lbrn¡¡llon h lnlondoú onl, for llto ruo                  of             Intllvtftrnl ot onllty
                 nnnod nbovo, lf you lro nol llro lnlontlorl                                                            lhnt ¡ny dlrôlororo,
                 copylng" dhlrll¡ulloo or llro lnhlng of nny                                                           of ll¡f¡ lnlbrnqtlon lr
                 unIul[orl¡od nnd rhlß(ly proltlbllctl. lf you ltnvo ro¡olvcrl lhl¡                                            ln orrorr      plonto
                 lmmo¡llnloly nol¡ly u¡ lry aolol¡hono ao nrrrurto for llrô toht'h ollh0 rlost¡nlonlr.




                                                                EXI{IBIT B
                                                                                                                                                   MR 262
                                               *
                                    -5,to,A'bl

                                             Lr\W   lBt\4
                                                                                                        ffit
                                      LoNÊ'1,ptt_HoúSIóN


                          FACSIMILE TRANSMITTAL LETTER

                                       Scptembcr 15' 2015


TO¡       C¡rlos A. Bslldo
 COMPANY¿ Wahe¡s Bditlo & Croìn' LLP
SAX¡               (2141760-1670

TOI       D¡wn C¡llow
COMPAI{Yz IEdn Dlstrlcl Coa¡t, Gregg County, Tuas
FAX;              (903)236-8ó03


Tß,OM:            Rose Fe¡zell
                  Prrolegal to Clenn A. Peny ond
                  ,IusilnA,9mlth

RE¡               Thomas ,Iackson      u.4',A Texrc Coung Matual            nl¡^*" Company
                  3392-00r

ORICINAL MAT ED: No' facslmlle onlY;
                                                                              I

NI'MBDR OF PAGES, INCLT'DING TEISCOVERLBTTER: p

Plea¡e see ettsched, PleiotifPs Notice of Hearing on its Morion              ti Compel
Dlscovcry.                                                                   I




IF   rnrxsußsloN         Is NoT CoMPLETE, PT,EASE CALL                               737:1000.

CONFIITEDITIALITY NOTICE: This f¡cglmlls tr¡n¡ni¡¡lon                                     lhc   documcol¡
rccompenying lt) rnay cootaln conlidcntl¡l lnform¡tlon Dololtg,log to the           whlch lc protectod by
lhc ottornoy+lhnt prlvilogc. Tho lnformotion lc Inlcndcd only for tho u¡¡         the lndlvfduql or €nllty
o¡med ¡hovs lf you aro not tho lntonded rsclplc¡t' you rro hrreby                    that ¡oy dl¡clo¡urq
copylngt dhtrlbullon or the toklng of nny nsfaon ln r¡llRnc¡ on the                oi lhl¡ lnform¡tfon ls
                                        Il
uo¡uttorlz¡d ¡nd ¡lrlctly prohlbltcd. you ltrve rccelved this                           ln crror, plcrie
imardlolcþ noll$ ur by tolcphonr to errongo for ll¡o rellrn ottho




                                      EXHIBIÎ B
                                                                                                    MR 263
,oHN D.Sr.OlW'r
lÁt REElt t.8¡[C1..ÉY
                                                                                      t'
                                                                           SI,OA¡I, BAGTEY                                                         A¡.¿{Nr. ROoERTSON
                                                                                                                                                   GANSON & RUNGE
M, RAYMOND HATCHER                                                        HATCHER & PERRY                                                          JUSTTNÀSMITH
GLE{N À PERRY'+                                                                   LAW FIRM                                                         ct   vR" zEl¡¡¡T
      çrr¡llr¡ Ètrrr¡ lolùrt I'rl¡l t¡w
'B.,rrú
rñrirrul 0oll of 'frirl Àft*7                                                LONGVII]T. HOUITTON


                                                                       Septembcr 10,2015




                                                                                                                                       Cause No:




                                                                  NOTICE OF IIEARING

          DcarMr. Balido:
                                                                                                                                   I


                     Please be advíged that a hoaring on Plaíntiffs' Motion to Comfrel Discovery is scheduled
          Thur¡d¡yr-October I. 2015 tô l:00 n'm.. in the l88th Judicial Dish{'ct Court of Gtegg County,
          Texas-
                                                                                                                               I


                     Ifyou have any questiont, please feel free to contact our offrce.i




                                                                                             Rose Feazcll
                                                                                             Paralegal to GleÅnA. Perry and
                                                                                             JustínA. Smlth

          kî
          3392-00t JACKSON

          Wa E-ßllns and facsûnlle                 (90il2i6-8603
          DaumCallow
          t88t D¡strict Court
          Gregg County, Texas                                                                                              I




                                                                                                                           I

                                          .           I   0   I E*c   rù0hcley .Srest.
                                                                                       le¡gy¡.t*, 'l'exos 7 f 60   I       I
                                          Phone   903.757.7000        |  Facsirnil e rO3,717,7j74
                                                                                                     I,*wrv.slocrrfi rt,<om



                                                                          EXr{tBtl                  B                  ;


                                                                                                                                               füR 264
                                                        WATTERS
                                                        BALIDO &
                                                        C RAIN



                               AU5IIN   i   DAUAS   T   DECAIUR   T   HOUSTON


                                                                                          CARI,OS A. BALIDO
                                                                                                          Panner
                                                                                 carlos. bal ido@wbc lawfi rm. com
                                                                                    (214) 347-8320 - Direct Line
                                                                                (214)341-8321 - Direct Facsimil
                                            November 17,Z0l4
 Yis Emall: ¡høtqh eñø.s losnlìnn.co m
 Vla E nsil: o¡oberston(ãs lo¿nlìfltlcom
 W o E mü l: oas u llø r(ùúo ¿ nllr m co m
 M. Rayrnond Hatoher
 Sloan, Bagley, Hatoher &Perry Law Firrn
 l0l East Whaley Street
 Longview, Texas 75601

        Re:     Cause No. 201-1365-A; Thomas Jaclcson vs. AAA Texas County Mulual
                Insurance Company,In the l88th Judicial District, Gregg County, Texas.
                Our File No. 1493-77325

Dear Counsel:

        Please allow this letter to serve as a Rule I I Agreement ín the above-referenced rnatter.
Specifically, you have agreed to €xtend Defendant AAA Texas County Mutual Insurance
Company's deadlines to serve responses and objections to PlaintifPs written discovery requests.
Defendant AAA Texas County Mutual Insurance Company's responses and objectíons to
Plaintiffs Requests for Disclosure, Plaintiffls First Requests for Productíon, PlaintifËs First Set
of Intenogatories, and Plaintiffs Requests for Admissions are now due December lrZ0l4,

       If this accurately reflects our agreemenÇ please sign below where indicated and retun a.
copy to me in accordance with Rule I I of thc Texas Rules of Civil Procedure. Thank you for
your professional courtesies with this matter.

                                               Very truly yours,

                                               /s/ Carlos A. BalÍdo
                                                       A. Balido


AGR"EED TO BY:

                               for Plaintiff

                                WALTERS OALIDO & CRAIN L,L.P.
        MEADOWPARKTOWER 10440NoRTHCSNTRA|-EXpRESSwAy SutlE1S0O DALrAs,TEXAS 75231
                        F tx:. 2t4.76O,1620 Teupxor,tL: 214,7 49ÁgOS

                                        www.wþclawflrm.com

                                        EXHIBIT C
                                                                                                MR 265
                                                                     WA LTER S
                                                                     BALIDO &
                                                                     CRAIN
                                                                     AIIORNËYS AI I,AW



                                           AUSTIN   *   DALTAS   T   DECATUR      *   HOUSTON


                                                                                                            CARLOS A. BALIDC}
                                                                                                                       Parlner
                                                                                                  carlos, botido@rvbclqrvfi nn, conl
                                                                                                     (2t 4) 347.8320. Diroot Line
                                                                                                (214) 34'1-8321 - D,iroct Facsirnile



                                                        Novernber 25,2014


    VÍn Enu¡ ìl : uJlt h.¿ rsltttt(ihthn u li t'tu. co t tt
   Alar¡ Roberlso¡r
   Slonn, Bagley, ttatcher & Pcny Law Fír¡n
   l0l East V/holey Strcet
   [,ongvicw, Texas 75601

                Re:     Cause  No,20l-f 365-A;
                        Thltlt¿t;'Jaclçron vs. AAA Texut Counly Mulual Insar(ince Conrpaqt
                        Our File No. 1493-77325

 Dear lvl¡'. Itobertsonl

          I)lense allow lhis letter to confirm that ths Plaintiff has agreed to extend Defenclant, AAA
 'fexas CountyMuhral Insulzurce Company's,
                                                   cleadline to sel've ils objections and/or resporrses to
 PlailrtifPs intert'ogatories, adnrissions, ptoduction, and disclosure requests untÍl V/ádnesday,
 l-)ecenrbcr 10, 2Cll4, Should this comport with yotu understanding, please sígn where indicatjd
 ancl letuln youl sigratory agreement to oul office via facsimile or e-msil.

                'thanlc you fot your plofcssiotul
                                                  cooperalion and corutesy in this mattcr.

                                                              Very truly yours,


                                                              1r-
                                                              c\l-*/a
                                                                              I

                                                                             Balido

CIAB:wjh
//13,1   l0lz




                                         WALTTRS ÐALIDO & CRAIN L.L,P.
                 MEADOW PARKTOWER 10440 NORTH CENTRAL EXPRE5SWAY SUlfE15OO DALIA5, TEXA5 75231
                                  F Axi 274.7 60.t670 TEtEpHOfl r        i
                                                                  2L4.7 49.4805
                                                    www,wbclawflrm.coÍt

                                                         EXHIBIT C
                                                                                                                       MR 266
Novcnrbcr' 25,20,4
Page2

AGREED TO BY;


,TL
¿\lun
Attorney for Plaintlff




                         EX}IIBII   G
                                        MR 267
12/tø/2Ø14 t2:?5 2L4-76ø-167Ø            214-16ø-1,67ø                                                                                    tr 2/2




                                                                  WALTERS
                                                                  EALIDO &
                                                                  CRAIN
                                                                       roRNrYs        rAw
                                                                  ^i             ^1


                                         AUSÍTN   t   O¡U¡S   I   orCnrUR        I    HoUSTON

                                                                                                           CARLOS A. BALIDO
                                                                                                                      Part¡o¡
                                                                                                 car)os.b alido@wbolaw finn, co¡n
                                                                                                     (21 4\ 347 -8320 - Direct- l. ine

                                                                                                Ql 4) 34'l -8321 - Direc¡   Facsim   il
                                                      I)ese,rîbel l0,2tJL4

       W   Facsimil¿: 003. 75 7. 75 74
       IVL Raynond Hatclter
       Alan J, Robertson
       Slonn BagloyHatohur & Peny Lrw Firm
       101 East \Vhaley Skeet
       Longvieu', Texus 75601

               Ru      C¡ruvc No, 20I-13ó5-4. I'homn Jucbsrlnvt..4^4A Texar Cottttî¡'Muluul Iruu¡'ance
                       Cornpany; In lhe l88th Distrr¡:t Court, Oregg County, Texus
                       Our File No. 1493-77325

      Dea¡ Counsel:

                 Please allorv this letfer lo señre aÉ a Rule 1f Agreement in the above-referenced mafter.
      Spet   iliculfy, you huvü agroucl tr¡ cxtflrl Dcfbn¡l¿rnt AAA Tcxas Ctrunt5r Nlutu¡rl Insuranoe
      Conrpany's de¡dltnes to servo responsÞs and objections to PlaintifT's lvritten disoovety r€quests.
      Defeudurt   AAA Texus Corutv Muturrl l¡sr¡liluce Compuy's rËsponsËs ull objections to
      Plaintiffs Roquust tirr Disclosures, First Sct of Intcrrogltories, First Requcst 1'or Adnrissions ¿urcl
      First Request for Producf otr rrË now due December 17,2O14.

             If lhis accuratel.r, refleots our agrèrment, please sign below where índicated and re hrrn a
      copy to mc in ûccoldonce wilh Rule ll of the Texr¡s Rules of Civil Procudul'e. Thurk you t'or
      your proibssional courtesies $Jiih this rnalter'.

                                                           Very huly yotu's,

                                                              Cnrlæ.4. Balido
                                                           Carlos A. Balído



     AGREED TO BY:

                             A           är Pluintitf
                                      WALTERS BALIDO & CRAIN L,t,P.
                 MEADOWPAßKTOWER IO44ONORf}ICENTRATEXPRESsWAY SUIÎE15OO DALLÀ9,TTXAS                           75]31
                                     F¡x: 214,76o.t670      TETEpHoNE;     214.749.4805
                                                  www.wbclawflrm,com




                                                  EXHIBIÎ                   C
                                                                                                                    MR 268
                                                                 WALTERS
                                                                 BALIDO &
                                                                 CRAIN
                                                                 Ài IoRNËYS   AÍ IAW



                                         AUSTTN   i   O¡lr¡s   * OeC¡run f      xousro¡v
                                                                                                     CARLOS A, BA],IDO
                                                                                                                      partne¡
                                                                                            car lor, b a lido@wb clawfinn, oom
                                                                                                (214) 347-8320 - Dirsor Lins
                                                                                           (214) 347-8321 - Diroct Facsimil
                                                      December L7,2014

 Vta Fucsimile : I 0 3. 7 5 7. 7 5 7 4
 Alun J, Robertson
 Sloan Bagley Halchor & Pcrry Law Firm
 101 E Wh,rloy Stleet
 Longview, Tuxas 75601

         Ro:       Cause No. 201-1365-A; Tlrcrnas Jackson vr. ,4.4A Tesic¡¡ Coltnly luhlual htslu'atlce
                   Company; Irr the 188th District Court, Gregg Counfy, Texas
                   Our File No. 1493-77325

Dual Counsol:

        Plcase r¡,llow this lettq' to serl'c as u Rule 11 Agreernout irr the ¡rbove-refelerced nttttel'.
Specificilty, you harrc agreod to extend Def'Êndmt A{A Texas Coun$ lvftrtual Insuranric
Cornpany's deadlines to serve Íesponses, arrsu,/ers and objections to Plaintiffs l¡ßitten discovery
roquosts, Detþnd¿¡Ít AAA Texus County Mutunl Insututce Compun'y's r¿sporlsËs, ¡nswers ancl
objections to Plaintiff s Request for Disclosute. First Set of Interrogatories, First Rcquest for
Atlrnissions ¡urrl Fir'st Ruquest f'ol Protluotion ilrË now duo l)rcrmber 24' 2[14.

       If this uucunrtcl-v retlects our ¿rg'eemünt, plcusc sign belor,r' rvhere indicuted ¡urd rufurn rt
copy to nre in ¡coordancs with Rule 1I of tho Texas Rufes of Civil Procedure, Th¡nk louf'or
your professioral courtesies with this rnatter.

                                                          Very trulyvor¡rs,

                                                          /s/.$hley WúLey
                                                          AshleyWhatley


AGREED TO BY:
                           Alan J,
                           Attutuey tirr PluintitT



                                           WATTERS SALIDO& CRAIN L,L.P,
           MEADOW PARI(TOWER 10440 NORTH CENTRAL EXPRE5SWAY SUITI 15OO OALLA', TEXAS 75231
                                    FAX,   214,760,1670 TEtEpHoNer 214,749.4805
                                                www,wbclawfírrn,com


                                                  EXHIBIT C
                                                                                                           MR 269
APPENDIX TAB 10
                                                                                                    Electf on¡callY Submitted
                                                                                             OCTOBER 27,2015 2:08 A M.
                                                                                                 Gregg County District Clerk
                                                                                                  By: Kindell Whitley ,dePUtY




                                           CAUSE NO.2014       - ß65 - A
                                                          s            IN TIIE DISTRICT COURT
THOI\{AS JACKSON
                                                          s
                                                          s            oF GREGG COUNTY' TEXAS
vl¡.
                                                          s
fuL[ TE)(/{S COIINTY MUTUAL                               s
                                                          s             188Ih   JUDICIAL DISTRICT
INSURAIYCE COMPATTTY



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

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

                                               Compel'
uken and therefore GRANTS Plaintiffs Motion to

           Itistherefore,ORDERED,ADJUDGEDandDECREEDthatPlaintiffsMotionto
                                                                            responses to Plaintiffs
compel ís GRAI.{TED and    that all objections asserted by Defendant in its

                                                           and First Requests for Production are
 First Requests for Admission, First set of Intenogatoúes,

 hereby OVERRULED.

           TheCourtfurtherFINDSthatthefollowingrequestsarerelatedtotheincident
                                                                        Plaintiffs claims for
 underlying   the suit, PlaintifPs claims for breach of co¡tract and/or

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

                            ll,   12,13,15, and 20; Plaintiffs Requests for Production
                                                                                       Nos'     2'3'4'5'7'9'
  1,2,4,5,7,g,10,
                                       18, 25, and 29; andPlaintíffs Request for Production
                                                                                            No. 34, to the
  10, 11,   |2,13,15, 16, 17,

  extent    it   pertains   to these immediately       aforementioned discovery requests'     It is' therefore'
                                                 these requests and intenogatories and produce
  oRDERED that Defendant shall frrlly respond to

  all responsive information and documents by october 15, 2015. It
                                                                   is firther ORDERED that

  shoutd any information             or material be withheld on the basis of privilege from         Defendant's

                                                                                        the information
  responses      to this discovery, Defendant shall produce a privilege log identiffing



                                                                                                              Pagc I




                                                                                               MR 27O
                                                           sufficient for the court and Plaintiff to
witrrheld, the specific privilege(s) asserted, information

                        of those privileges, and any and all other information required by
                                                                                                Texas
assess the applicabte

Rule of Civil Procedure 193.3by October 15,2015'

                   fifther FINDS that that the following   requests are related to PlaintifPs exba-
       The court

                                                        17; Plaintiffs Interrogatories Nos' 3,
contactual claims: plaintiffs Request for Admission No.
                                                                Nos. 1, 6, 8, 14, 19,        20,21'22'
6, g, 14, 16,17,18, and 19; Plaintiffls Requests for Production
                                                           Production No' 34' to the extent
23,24,26,27,28,30,31,32,and 33; and Plaintiffs Request for

it pertains to these immediately aforementioned discovery requests'
                                                                    It is, therefore, oRDERED

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

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

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

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

                                                                          ír¡formatíon suffrcient for
identifuing the information withheld, the specific privilege(s) asserted,
                                                                      and any and all other
the court and Plaintiff to assess the applicable of those privileges,

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

 October 1,2015.


              October 26th
 SIGNED on                                 2015.
                                                                '1 Í,



                                                      JTJDGE   PRESIDING




                                                                                                     Page 2




                                                                                        l,IlR 271
