Recent holdings by the Corpus Christi-Edinnburg and San Antonio Court of Appeals appear to expand the scope of discovery against insurers in UM/UIM cases. As a result, those representing insurers should be weary of the scope of insurer corporate representative deposition requests and seek out court intervention where the deposition notices contain overly broad and irrelevant topics.
On April 18, 2019, the Corpus Christi-Edinburg Court of Appeals held a plaintiff driver was entitled to depose the defendant insurer’s corporate representative in a suit seeking UM/UIM benefits. Specifically, the court held plaintiff driver was permitted to depose the insurer’s representative regarding motorist liability, amount of driver’s damages in the collision, and the extent of motorist’s coverage.
In so ruling, the court noted that plaintiff had settled with the underinsured motorist and was then proceeding directly against his insurer. The then pending claims did not involve extra-contractual matters. The court also explained plaintiff had pled facts which, if true, would establish the third party’s liability for the accident, the third party’s underinsured status, and his insurer’s refusal to pay UIM benefits. Therefore, the court found plaintiff had alleged a ripe claim and allowed the deposition of the insurer’s corporate representative to go forward.
This holding is in line with two other Texas appellate court cases allowing insurance corporate representative depositions in UM/UIM litigation. In In re Luna, the Corpus Christ-Edinburg Court granted mandamus relief to allow the deposition of the insurer’s representative in an UM case. 2016 WL 6576879. There, the court found information pertaining to liability and the insurer’s defenses was relevant and discoverable absent a showing of privilege or other exemption. Similarly, the San Antonio Court of Appeals granted mandamus relief to permit the deposition of an insurance representative in a case involving UM/UIM benefits. In In re Garcia, the court concluded that in quashing the deposition in its entirety, the lower court had restricted plaintiff’s access to relevant information pertaining to the insurer’s multiple defenses. 2007 WL 1481897.
Contrastingly, the First Court of Appeals held the plaintiff was not entitled to depose the insurer’s claims adjuster because the information sought was not relevant to the liability of the car accident, the plaintiff’s UM/UIM status, or the existence and amount of damages. In re Liberty Cty. Mut. Ins. Co., 537 S.W.3d 214, 220 (Tex. App.—Houston [1st Dist.] 2017, orig. proceeding). In doing so, the court in In re Liberty noted:
Because Liberty Mutual's contractual obligations do not ripen until after [the plaintiff] has obtained a judgment against [the other driver] on liability, damages, and coverage, the requested discovery is irrelevant to any current claims, which are the building blocks for an eventual determination of the parties' contractual rights. An insurer is not required to incur litigation expenses on these issues because they may be rendered moot by the trial of the underlying accident. Id.
More recently, the Fourteenth Court of Appeals quashed an insurance representative’s deposition in a UIM case because the deposition order was, “not limited to the relevant topics of the truck driver’s liability and the existence and amount of Plaintiff's damages” and “the information sought through the deposition already has been obtained by Plaintiff or may be obtained from other sources with less burden and expense.” In re Liberty Cty. Mut. Ins. Co., 557 S.W.3d 851, 856 (Tex. App.—Houston [14th Dist.] 2018, orig. proceeding).
Similarly, the Fort Worth Court of Appeals issued an opinion examining the allowance for a plaintiff to call an insurer’s corporate representative to testify during trial. 2018 WL 5993445, (Tex. App.—Fort Worth Nov. 15, 2018, no pet. h.). There, the court held that because plaintiff and defendant insurer had stipulated to coverage, and it would have been improper for the jury to know the policy limits for either the allegedly underinsured drover or the UIM-policy, the insurer’s corporate representative need not have testified at trial.
In light of the recent holdings by the Corpus Christi-Edinnburg and San Antonio Court of Appeals, it appears some courts are liberally construing the Texas Supreme Court decision of Brainard and permitting plaintiffs to compel insurer’s corporate representative depositions within UM/UIM litigation. Thus, those representing insurers in UM/UIM litigation must be weary of the scope of insurer corporate representative deposition requests and seek out court intervention where the deposition notices contain overly broad and irrelevant topics.
Attorney Sarah Schuller works out of the Dallas office of Taylor | Anderson, LLP, and handles UM/UIM claims. She can answer any questions you may have about this trend and UM/UIM litigation in general.