Court of Appeals of Texas, Fourth District, San Antonio
IN RE FARMERS TEXAS COUNTY MUTUAL INSURANCE COMPANY
Original Mandamus Proceeding
Sitting: Karen Angelini, Justice Sandee Bryan Marion, Justice Marialyn Barnard, Justice
PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED IN PART
KAREN ANGELINI, JUSTICE
On September 23, 2013, relator Texas Farmers County Mutual Insurance Company filed this petition for writ of mandamus complaining of three orders signed by three different judges in the underlying suit for personal injury and underinsured motorist coverage — one order was signed September 11, 2013, granting a presumptive spoliation jury instruction; one was signed September 13, 2013, excluding a defense expert's opinions and testimony; and one was signed September 20, 2013, striking relator's affirmative defenses. Because we conclude the trial court abused its discretion in striking relator's affirmative defenses for alleged discovery abuse in this instance, we conditionally grant the petition for writ of mandamus in part and deny it in part.
FACTUAL AND PROCEDURAL BACKGROUND
The underlying lawsuit arises out of a vehicle-bicycle collision which occurred on April 7, 2011. Luke Jajou was driving a vehicle owned by his father, John Jajou, when he collided with a bicycle ridden by 11-year-old Borna Hajivandi. Hajivandi, through his father as next friend, filed suit against the Jajous in May 2011 to recover for Borna's injuries, asserting claims for negligence, negligence per se and negligent entrustment. On May 5, 2011, prior to the lawsuit being filed, Luke Jajou provided a recorded statement to his liability insurance carrier as part of its investigation of the accident.
Jajou was served with the original petition, which included requests for disclosure pursuant to the Texas Rules of Civil Procedure on May 25, 2011. See Tex. R. Civ. P. 192.3. Allstate, Jajou's liability insurance carrier, defended Jajou in the litigation. Jajou provided his initial responses to the requests for disclosure in July 2011. With respect to the request for any witness statements, Jajou responded that he "[would] supplement if any statements were taken." Approximately three weeks later, Hajivandi settled with the Jajous and Allstate for $30, 000.00, the available policy limits. Due to the settlement agreement with Hajivandi, the Jajous never provided any supplemental responses to the requests for disclosure.
Hajivandi then filed a second amended petition in September 2011 which for the first time asserted claims against Farmers, his own insurance carrier, for breach of contract, late payment of claim and unfair settlement practices. Hajivandi asserted that the Jajous' liability insurance policy through Allstate was insufficient to cover all of Hajivandi's asserted damages, and therefore, Farmers was obligated to provide benefits under the uninsured/underinsured motorist policy issued to Hajivandi which was in effect at the time of the accident. Farmers provided responses to requests for disclosure in April 2012. With respect to the request for witness statements as described in Rule 192.3(h), Farmers responded that it had none.
In April 2013, Farmers provided Hajivandi with notice of its intent to take the deposition of Allstate on written questions. The notice included a request for Allstate's claim file regarding the April 2011 accident between Jajou and Hajivandi. The deposition was taken on May 15, 2013, and Allstate provided documents in response to the accompanying subpoena duces tecum, but did not provide any recorded statement of Luke Jajou. Farmers' counsel pursued the inquiry further and, on August 20, 2013, learned for the first time that a recorded statement of Luke Jajou had been taken by Allstate in May 2011 which had not been previously produced. Farmers received an audiotape recording of Jajou's statement on August 22. Hajivandi's counsel was notified of the audiotape and requested that the statement be put in a more usable format. The recorded statement was provided to Hajivandi's counsel, in the format requested, on August 30, 2013 — ten days after Farmers first learned of its existence and approximately three weeks before the case was set for trial.
On August 20, 2013, Hajivandi filed a motion requesting a finding of spoliation of evidence. Hajivandi asserted that Jajou had deliberately destroyed relevant evidence by failing to preserve the cell phone he had with him at the time of the accident. The trial court granted the motion by written order on September 11, 2013, ordering that at trial a presumptive spoliation jury instruction would be included in the court's charge, the specifics of which were to be determined by the trial court presiding on the merits.
Hajivandi filed a motion to exclude the testimony of a defense expert on August 23, 2013, on the basis that the expert's opinions, as expressed in the report provided with his designation, were conclusory and failed to comply with the reliability requirements of Rule 702 of the Texas Rules of Evidence. The trial court granted the motion by written order signed September 13, 2013, excluding the report and opinions of the expert from admission at trial.
Hajivandi filed a motion for sanctions and order to show cause on September 11, 2013. Hajivandi requested that Farmers' affirmative defenses be stricken because of the alleged discovery abuse in the late production of Jajou's recorded statement. The motion was heard and granted on September 20, 2013. The trial court struck Farmers' affirmative defenses of contributory negligence, sudden emergency and unavoidable accident and ordered that no affirmative defenses could be argued, asserted or included in the court's charge to the jury at trial. This petition for writ of mandamus followed.
Mandamus is an extraordinary remedy, only available where the party seeking mandamus relief has established both a clear abuse of discretion by the trial court and the lack of an adequate appellate ...