Lastly Wednesday, the Tyler Court of Appeals considered a trial court’s order allowing a UIM insurer’s corporate representative’s deposition to proceed and conditionally granted mandamus relief to the insurer allowing the deposition to proceed with a narrow focus on damages and defenses in the pending action, but not as to irrelevant and inadmissible extra-contractual and claim handling matters. In In re Garrison Property & Casualty Insurance Company, 2020 WL 6164982 (Tex. App. - Tyler, Oct. 21, 2020), the insured suffered injuries in an automobile accident and settled with the responsible driver. In the pending declaratory judgment lawsuit seeking UIM benefits under her own policy, the insured requested a deposition from her insurer’s corporate representative on thirteen topics. The insurer did not agree to produce them and filed a motion to quash. They also filed “unilateral stipulations” addressing the topics, essentially confirming coverage, available benefits, consent to settle, the other driver’s negligence, liability and other contractual issues except, the amount of damages the insured is legally entitled to recover. Nevertheless, the trial court denied the insurer’s motion to quash and ordered the deposition to proceed. This mandamus action followed.

The Tyler Court of Appeals considered the insurer’s argument that any discovery on its defenses and legal theories is not relevant until the amount of damages the insured is legally entitled to recover has been determined.  The court observed that “as long as the scope is limited to the issues in dispute, a deposition of a corporate representative is relevant and permissible discovery.”  And, “[t]his is especially true in cases such as this one in which the claimant has settled with the alleged underinsured motorist and is proceeding directly against the insurer in a case that does not involve extra-contractual matters.” Accordingly, the court concluded the deposition may proceed to discover the “nature and extent of Garrison’s defenses concerning damages.” But that other topics, such as the nature of the insured’s injuries, irrelevant matters such as “inadmissible extracontractual and claim handling matters” exceed the scope of matters relevant to damages and should not be allowed. The insurer’s petition for writ of mandamus was conditionally granted in part and denied in part, allowing the corporate representatives deposition to proceed but to be limited in scope to issues relevant in the pending lawsuit.

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