Preview
CAUSE NO. 2016-77463
ANGELA CLAIBORNE
APTVC, LLC and GATESCO, Inc.
PLAINTIFF’S MOTION FOR RECONSIDERATION OF
COURT’S ORDER DENYING MOTION TO COMPEL INSURANCE INFORMATION
Plaintiff Angela Claiborne (“Plaintiff’ or “Claiborne”) files this Motion for
Reconsideration, respectfully asking this Court to compel Defendant APTVC, LLC and
Defendant Gatesco, Inc.(collectively, “Defendants”) to comply with Texas Rule of Civil
Procedure 194.2(g) and produce any and all insurance policies which may provide coverage for
Plaintiff's injuries for the following reasons:
The clear language of Rules 194.2(g) and 193.2(f) clearly establishes that Plaintiff
may obtain discovery of the existence and contents of any insurance policy that
may cover Plaintiff's injuries.
Counsel for Defendants’ argument that they are not required to produce
insurance information if they do not notify the carrier has been expressly rejected
e 113th District Court of Harris County
(Landrum, J.).
Plaintiff is a third party beneficiary of the policy
conditions precedent of the policy even before acquiring standing to enforce
no relief if Plaintiff obtains a judgment
covered by existing insurance but in nts’ assets.
Plaintiff served Defendant APTVC, LLC with its first set of discovery requests on January
26, 2017. Ex. A, Plaintiff's First Set of Interrogatories, Request for Production, Request for Admissions,
and Request for Disclosures to Defendant. As required by Texas Rule of Civil Procedure 194.2,
Plaintiff requested the disclosure and production of “any discoverable indemnity an
agreements described in Rule 192.3(f).” Id. Defendant APTVC, LLC responded that “[nlo
insurance carrier has assumed the defense or coverage of this case.” Ex. B, Defendant APTVC,
LLC’s Response to Plaintiff's Request for Disclosure. Defendant Gatesco, Inc. communicated the
exact same response to Plaintiff's request for disclosure of insurance agreements: “No insurance
carrier has assumed the coverage or defense of this case.” Ex. C, Defendant Gatesco Inc.’s Discovery
On April 3, 2018, Plaintiff filed a Motion to Compel production of any policies that may
satisfy Plaintiffs claims in the event of a judgment. Ex. D, Plaintiff's Motion to Compel
Defendants had no authority for refusing to produce insurance (which is automatic under Rule
194.2), but instead argued this exact same argument was the subject of a writ of mandamus in a
separate case. Based on this representation, this Court denied Plaintiffs Motion to Compel to
await the opinion of the appellate court. Ex. E,
Defendants failed to notify s denied on May 15, 2018.
Plaintiff thus informed the Court that the Fourteenth Court of Appeals had denied mandamus
to defense counsel on this issue, and further noted that a sister court had rejected the argument
that counsel was not required to produce any potentially applicable insurance policies. Ex. F,
June 22, 2018 Letter July 2, 2018 Letter Memorandum Opinion of the 14th District
Court of Appeals (denying mandamus); Ex. I, Order of 113th District Court. Plaintiff now urges this
Court to reconsider its order denying Plaintiffs Motion to Compel and issue a new order
the Texas Rules of Civil Procedure.
IL.
Exhibit A: Plaintiff's First Set of Interrogatories, Request for Production,
Request for Admissions, and Request for Disclosures to
Defendant
Exhibit B Defendant APTVC, LLC’s Response to Plaintiffs Request for
Disclosure
Exhibit C Defendant Gatesc
Exhibit D: Plaintiff's Motion to Compel
Exhibit E. May 23, 2018, Order
Exhibit F: June 22, 2018, Le
Exhibit G July 2, 2018, Le
Exhibit H Memorandum Opinion of the 14th District Court of Appeals
Exhibit I: Order of the 113th Judicial District Court of Harris County, Texas
Il.
This Court should order Defendants to disclose the existence and contents of any liability
or excess insurance policies that could provide coverage for Plaintiff's claims in the event of a
potential judgment. The plain language of Texas Rule of Civil Procedure authorizes discovery of
potentially applicable insurance policies and furthermore, a failure to disclose any applicable
insurance policies only serves to prejudice Plaintiff's ability to comply with the necessary
conditions precedent of the policy. Plaintiff respectfully asks this Court to withdraw its order
denying discovery of Defendants’ insurance policies and enter a new order requiring the
nce and contents of any liability or excess insurance policies.
The plain language of Texas Rule of Civi
Texas Rule of Civil Procedure 194.2(g) provides that a party may obtain disclosure of
“any indemnity or insuring agreements as described in Rule 192.3(f).” In turn, Texas Rule of
Except as otherwise provided by law, a party may obtain discovery of the existence
and contents of any indemnity or insurance agreement under which any person
may be liable to satisfy part or all of a judgment rendered in the action or to
indemnify or reimburse for the judgment. Information
concerning the indemnity or insurance agreement is not by reason of disclosure
admissible in evidence at trial.
The Rules may not be treated as “merely procedural matters or technicalities.” Pearl Assur.
Co. v. Williams, 167 S.W.2d 808, 810 (Tex. Civ. App.—Fort Worth 1942, no writ). Rather, the
Rules have the same force and effect, and should be construed in much the same manner, as
statutes. Missouri Pac. R. Co. v. Cross, 501 S.W.2d 868, 872 (Tex. 1973); HBA East, Ltd. v. JEA
Boxing Co., Inc., 796 S.W.2d 534, 538 (Tex. App.—Houston [1st Dist.] 1990, writ denied);
, 933 S.W.2d 635, 640 (Tex. App.—San
Accordingly, rules that are specific and clea meaning unless a literal
interpretation would produce an absurd result or defeat the intent of the enacting body.
933 S.W.2d at 640. Rule 192.3(f) is plain that “a party may obtain discovery of the existence and
contents of any indemnity or insurance agreement under which person may be liable to
satisfy part or all ofa judgment rendered in the action...” (emphasis added). The Texas Supreme
Court has expressly held that Rule 192.3(f), as its plain language dictates, authorizes at least
discovery of the existence and scope of any potentially applicable insurance policies. In re Dana
The Defendants argue that since they have not provided notice to their insurer of
Plaintiff's claim or otherwise demanded a defense or coverage under the policy, that there is no
way the insurer “may be liable” for all or part of a potential judgment. This blatantly incorrect
premise contravenes the entire body of Texas jurisprudence on insurance law.
It is true that in Texas an injured party generally has no direct claim against the
tortfeasor’s insurer until the insured tortfeasor is determined to be liable to the tort claimant.
Auzenne v. Great Lakes Reinsurance, PLC, 497 S.W.3d 35, 38 (Tex. App.—Houston [14th Dist.]
2016, no pet.). However, although an injured party may not have a claim against the
tortfeasor’s insurer until a judgment has been rendered, an injured party nevertheless has the
standing of a third-party beneficiary of a liability insurance policy. In re First Mercury Ins. Co,
At the time of judgment, Plaintiff's claim against any liability insurer will become ripe
and Plaintiff will be able to file a separate claim directly against the insurer for the insurance
proceeds of the policy for any unpaid judgments. MCI Telecommunications Corp. v. Tex. Utilities
, 995 S.W.2d 647, 651 (Tex. 1999). Clearly, a tortfeasor’s insurers are parties who “
P. 192.3(f) (emphasis added).
The scope of Rule 192.3(f) clearly indicates that it encompasses the liability of any person,
not just the defendant. Since the plaintiff is entitled to collect any insurance proceeds in the
event of an unpaid judgment, it is possible that the insurer may be liable directly to the plaintiff
after the judgment. Therefore, Plaintiff may obtain discovery of the existence and contents of
any liability or excess insurance policy which may potentially provide coverage for Plaintiff's
Defendants are prejudicing Plaintiffs ability to comply with the conditions precedent
As a third party beneficiary, an injured party “steps into the shoes” of the named insured
and is thus bound by the conditions precedent of the policy. Stonewall Ins. Co. v. Modern
Exploration, Inc., 757 S.W.2d 432, 434 (Tex. App.—Dallas 1988, no pet.). A third party
beneficiary cannot acquire a better standing to enforce an insurance policy than that occupied
by the named insured itself. , 757 S.W.2d at 434-35, citing Waggoner v. HerringShowers
Lumber Co., 40 S.W.2d 1, 4 (Tex. 1931); Broughton v. Castlepoint Nat'l Ins. Co., 656 Fed. Appx.
729, 733 (5th Cir. 2016).
Since an insured has a duty to cooperate in the investigation, defe
a claim, a failure to cooperate may Martinez v. ACCC Ins. Co.
S.W.3d 924, 929 (Tex. App.—Dallas 2011, no pet.). The facts of Martinez are strikingly similar
to the facts in this case. The plaintiffs in the underlying lawsuit became judgment creditors of
it against the insurer. . at 928. The insurer responded that since the
insured had failed to meet the conditions precedent, coverage was prec
at 929. The named insured never contacted the insurer regarding the collision, never
responded to any communications regarding the collision, and failed to inform the insurer of
at 929-930. The Court in that case found that if the insurer was able to show that
it was prejudiced by the insured’s failure to cooperate, then the third party beneficiaries would
gger policy coverage.
Defendants’ argument that its insurers will not be liable to Plaintiffs could only be true
if Defendants were intentionally failing to comply with the conditions precedent of the policy
in order to preclude coverage. In fact, the only party that defense counsel truly protects with this
argument is the insurer. This subjective and arbitrary denial of coverage is exactly the type of
unfair and inequitable result that the Rules of Civil Procedure are designed to prevent.
P. 1. Defendants’ behavior should not be rewarded. This Court should order
nce and contents of any liability or excess insurance policies so
ial right to the insurance proceeds.
Iv.
Accordingly, Plaintiff respectfully requests that the Court withdraw its order denying
discovery of Defendants’ insurance policies and enter an order requiring Defendants to disclose
the existence and contents excess insurance policies.
Respectfully submitted,
LLP
Zs/ Ben Bireley
Jason A. Itkin
Texas State Bar No. 24060816
Ben Bireley
Texas State Bar No. 24076086
6009 Memorial Drive
Houston, Texas 77007
Telephone: (713) 222-3800
Facsimile: (713) 222-3850
e-service@arnolditkin.com
nwexler@arnolditkin.com
Plaintiff's Attorneys
ONFERENCE
This is to certify that prior to filing this motion, I conferred with counsel of record for
Gatesco, Inc. and APTVC, LLC via email. I understand counsel for both parties to be opposed
to the relief sought herein.
/s/ Ben Bireley
ERVICE
This is to certify that on this 10th day of September 2018, a true and correct copy of the
above and foregoing was served upon the all counsel of record in compliance with the Rules of
/s/ Ben Bireley
Preview
CAUSE NO. 2016-77463 ANGELA CLAIBORNE APTVC, LLC and GATESCO, Inc. PLAINTIFF’S MOTION FOR RECONSIDERATION OF COURT’S ORDER DENYING MOTION TO COMPEL INSURANCE INFORMATION Plaintiff Angela Claiborne (“Plaintiff’ or “Claiborne”) files this Motion for Reconsideration, respectfully asking this Court to compel Defendant APTVC, LLC and Defendant Gatesco, Inc.(collectively, “Defendants”) to comply with Texas Rule of Civil Procedure 194.2(g) and produce any and all insurance policies which may provide coverage for Plaintiff's injuries for the following reasons: The clear language of Rules 194.2(g) and 193.2(f) clearly establishes that Plaintiff may obtain discovery of the existence and contents of any insurance policy that may cover Plaintiff's injuries. Counsel for Defendants’ argument that they are not required to produce insurance information if they do not notify the carrier has been expressly rejected e 113th District Court of Harris County (Landrum, J.). Plaintiff is a third party beneficiary of the policy conditions precedent of the policy even before acquiring standing to enforce no relief if Plaintiff obtains a judgment covered by existing insurance but in nts’ assets. Plaintiff served Defendant APTVC, LLC with its first set of discovery requests on January 26, 2017. Ex. A, Plaintiff's First Set of Interrogatories, Request for Production, Request for Admissions, and Request for Disclosures to Defendant. As required by Texas Rule of Civil Procedure 194.2, Plaintiff requested the disclosure and production of “any discoverable indemnity an agreements described in Rule 192.3(f).” Id. Defendant APTVC, LLC responded that “[nlo insurance carrier has assumed the defense or coverage of this case.” Ex. B, Defendant APTVC, LLC’s Response to Plaintiff's Request for Disclosure. Defendant Gatesco, Inc. communicated the exact same response to Plaintiff's request for disclosure of insurance agreements: “No insurance carrier has assumed the coverage or defense of this case.” Ex. C, Defendant Gatesco Inc.’s Discovery On April 3, 2018, Plaintiff filed a Motion to Compel production of any policies that may satisfy Plaintiffs claims in the event of a judgment. Ex. D, Plaintiff's Motion to Compel Defendants had no authority for refusing to produce insurance (which is automatic under Rule 194.2), but instead argued this exact same argument was the subject of a writ of mandamus in a separate case. Based on this representation, this Court denied Plaintiffs Motion to Compel to await the opinion of the appellate court. Ex. E, Defendants failed to notify s denied on May 15, 2018. Plaintiff thus informed the Court that the Fourteenth Court of Appeals had denied mandamus to defense counsel on this issue, and further noted that a sister court had rejected the argument that counsel was not required to produce any potentially applicable insurance policies. Ex. F, June 22, 2018 Letter July 2, 2018 Letter Memorandum Opinion of the 14th District Court of Appeals (denying mandamus); Ex. I, Order of 113th District Court. Plaintiff now urges this Court to reconsider its order denying Plaintiffs Motion to Compel and issue a new order the Texas Rules of Civil Procedure. IL. Exhibit A: Plaintiff's First Set of Interrogatories, Request for Production, Request for Admissions, and Request for Disclosures to Defendant Exhibit B Defendant APTVC, LLC’s Response to Plaintiffs Request for Disclosure Exhibit C Defendant Gatesc Exhibit D: Plaintiff's Motion to Compel Exhibit E. May 23, 2018, Order Exhibit F: June 22, 2018, Le Exhibit G July 2, 2018, Le Exhibit H Memorandum Opinion of the 14th District Court of Appeals Exhibit I: Order of the 113th Judicial District Court of Harris County, Texas Il. This Court should order Defendants to disclose the existence and contents of any liability or excess insurance policies that could provide coverage for Plaintiff's claims in the event of a potential judgment. The plain language of Texas Rule of Civil Procedure authorizes discovery of potentially applicable insurance policies and furthermore, a failure to disclose any applicable insurance policies only serves to prejudice Plaintiff's ability to comply with the necessary conditions precedent of the policy. Plaintiff respectfully asks this Court to withdraw its order denying discovery of Defendants’ insurance policies and enter a new order requiring the nce and contents of any liability or excess insurance policies. The plain language of Texas Rule of Civi Texas Rule of Civil Procedure 194.2(g) provides that a party may obtain disclosure of “any indemnity or insuring agreements as described in Rule 192.3(f).” In turn, Texas Rule of Except as otherwise provided by law, a party may obtain discovery of the existence and contents of any indemnity or insurance agreement under which any person may be liable to satisfy part or all of a judgment rendered in the action or to indemnify or reimburse for the judgment. Information concerning the indemnity or insurance agreement is not by reason of disclosure admissible in evidence at trial. The Rules may not be treated as “merely procedural matters or technicalities.” Pearl Assur. Co. v. Williams, 167 S.W.2d 808, 810 (Tex. Civ. App.—Fort Worth 1942, no writ). Rather, the Rules have the same force and effect, and should be construed in much the same manner, as statutes. Missouri Pac. R. Co. v. Cross, 501 S.W.2d 868, 872 (Tex. 1973); HBA East, Ltd. v. JEA Boxing Co., Inc., 796 S.W.2d 534, 538 (Tex. App.—Houston [1st Dist.] 1990, writ denied); , 933 S.W.2d 635, 640 (Tex. App.—San Accordingly, rules that are specific and clea meaning unless a literal interpretation would produce an absurd result or defeat the intent of the enacting body. 933 S.W.2d at 640. Rule 192.3(f) is plain that “a party may obtain discovery of the existence and contents of any indemnity or insurance agreement under which person may be liable to satisfy part or all ofa judgment rendered in the action...” (emphasis added). The Texas Supreme Court has expressly held that Rule 192.3(f), as its plain language dictates, authorizes at least discovery of the existence and scope of any potentially applicable insurance policies. In re Dana The Defendants argue that since they have not provided notice to their insurer of Plaintiff's claim or otherwise demanded a defense or coverage under the policy, that there is no way the insurer “may be liable” for all or part of a potential judgment. This blatantly incorrect premise contravenes the entire body of Texas jurisprudence on insurance law. It is true that in Texas an injured party generally has no direct claim against the tortfeasor’s insurer until the insured tortfeasor is determined to be liable to the tort claimant. Auzenne v. Great Lakes Reinsurance, PLC, 497 S.W.3d 35, 38 (Tex. App.—Houston [14th Dist.] 2016, no pet.). However, although an injured party may not have a claim against the tortfeasor’s insurer until a judgment has been rendered, an injured party nevertheless has the standing of a third-party beneficiary of a liability insurance policy. In re First Mercury Ins. Co, At the time of judgment, Plaintiff's claim against any liability insurer will become ripe and Plaintiff will be able to file a separate claim directly against the insurer for the insurance proceeds of the policy for any unpaid judgments. MCI Telecommunications Corp. v. Tex. Utilities , 995 S.W.2d 647, 651 (Tex. 1999). Clearly, a tortfeasor’s insurers are parties who “ P. 192.3(f) (emphasis added). The scope of Rule 192.3(f) clearly indicates that it encompasses the liability of any person, not just the defendant. Since the plaintiff is entitled to collect any insurance proceeds in the event of an unpaid judgment, it is possible that the insurer may be liable directly to the plaintiff after the judgment. Therefore, Plaintiff may obtain discovery of the existence and contents of any liability or excess insurance policy which may potentially provide coverage for Plaintiff's Defendants are prejudicing Plaintiffs ability to comply with the conditions precedent As a third party beneficiary, an injured party “steps into the shoes” of the named insured and is thus bound by the conditions precedent of the policy. Stonewall Ins. Co. v. Modern Exploration, Inc., 757 S.W.2d 432, 434 (Tex. App.—Dallas 1988, no pet.). A third party beneficiary cannot acquire a better standing to enforce an insurance policy than that occupied by the named insured itself. , 757 S.W.2d at 434-35, citing Waggoner v. HerringShowers Lumber Co., 40 S.W.2d 1, 4 (Tex. 1931); Broughton v. Castlepoint Nat'l Ins. Co., 656 Fed. Appx. 729, 733 (5th Cir. 2016). Since an insured has a duty to cooperate in the investigation, defe a claim, a failure to cooperate may Martinez v. ACCC Ins. Co. S.W.3d 924, 929 (Tex. App.—Dallas 2011, no pet.). The facts of Martinez are strikingly similar to the facts in this case. The plaintiffs in the underlying lawsuit became judgment creditors of it against the insurer. . at 928. The insurer responded that since the insured had failed to meet the conditions precedent, coverage was prec at 929. The named insured never contacted the insurer regarding the collision, never responded to any communications regarding the collision, and failed to inform the insurer of at 929-930. The Court in that case found that if the insurer was able to show that it was prejudiced by the insured’s failure to cooperate, then the third party beneficiaries would gger policy coverage. Defendants’ argument that its insurers will not be liable to Plaintiffs could only be true if Defendants were intentionally failing to comply with the conditions precedent of the policy in order to preclude coverage. In fact, the only party that defense counsel truly protects with this argument is the insurer. This subjective and arbitrary denial of coverage is exactly the type of unfair and inequitable result that the Rules of Civil Procedure are designed to prevent. P. 1. Defendants’ behavior should not be rewarded. This Court should order nce and contents of any liability or excess insurance policies so ial right to the insurance proceeds. Iv. Accordingly, Plaintiff respectfully requests that the Court withdraw its order denying discovery of Defendants’ insurance policies and enter an order requiring Defendants to disclose the existence and contents excess insurance policies. Respectfully submitted, LLP Zs/ Ben Bireley Jason A. Itkin Texas State Bar No. 24060816 Ben Bireley Texas State Bar No. 24076086 6009 Memorial Drive Houston, Texas 77007 Telephone: (713) 222-3800 Facsimile: (713) 222-3850 e-service@arnolditkin.com nwexler@arnolditkin.com Plaintiff's Attorneys ONFERENCE This is to certify that prior to filing this motion, I conferred with counsel of record for Gatesco, Inc. and APTVC, LLC via email. I understand counsel for both parties to be opposed to the relief sought herein. /s/ Ben Bireley ERVICE This is to certify that on this 10th day of September 2018, a true and correct copy of the above and foregoing was served upon the all counsel of record in compliance with the Rules of /s/ Ben Bireley