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In re Texas Farmers Insurance Co.

Court of Appeals of Texas, Second District, Fort Worth

January 30, 2014

IN RE TEXAS FARMERS INSURANCE COMPANY, FARMERS INSURANCE EXCHANGE AND FARMERS TEXAS COUNTY MUTUAL INSURANCE COMPANY RELATORS

ORIGINAL PROCEEDING

PANEL: MCCOY, MEIER, and GABRIEL, JJ.

MEMORANDUM OPINION [1]

BOB MCCOY JUSTICE

I. Introduction

In a single issue, Relators Texas Farmers Insurance Company, Farmers Insurance Exchange, and Farmers Texas County Mutual Insurance Company ask this court for relief from Respondent the Honorable Patrick Ferchill's order requiring them to produce documents in response to Real Party in Interest (RPI)

James Holiday's discovery requests.[2] We conditionally grant relief, vacating Respondent's order to provide information in response to requests for production Nos. 4, 6, 9, 10, 11, 12, and 13 to allow RPI the opportunity to tailor the requests for production as discussed at the hearing on the motion to compel, to allow Relators to file a privilege log for the documents that they claim are privileged, and to allow Respondent the opportunity to then review the documents in camera to determine which, if any, are not privileged.

II. Background

In 2010, on the way home from drinking alcohol at Railhead Smokehouse, Jeffery Herron fell off an all-terrain vehicle (ATV) owned and operated by Todd Jarvis, who had a homeowner's policy, a personal umbrella policy, and a personal automobile policy with Relators. Herron sued Jarvis and Railhead; Railhead countered against Jarvis for negligently causing Herron's injuries. Relators agreed to provide a defense to Jarvis under the homeowner's and umbrella policies, under a full reservation of their rights and defenses, but not under the automobile policy. Relators then filed for declaratory relief, seeking a declaration that they had no duty to defend or indemnify Jarvis under any of the policies. They attached the policies to the petition.

Jarvis counterclaimed, seeking a declaration that Relators had a duty to defend and indemnify him, arguing that the ATV fell within the "lawn, garden, or farm equipment" exception to the motor vehicle exclusion in the homeowner's policy and claiming that Relators had violated insurance code chapter 541 by asserting their reservation of rights and attempting to avoid contractual liability. RPI filed a cross-action, seeking the same declaration and relief as Jarvis. RPI sent his first request for production to Relators, and Relators responded and objected to the following requests that are at issue here:

Request No. 4: Please produce complete copies of all claims manuals or training materials, or other materials that address the handling of liability claims under homeowners policies.
Response: Objection, work product privilege. Objection, not reasonably calculated to lead to the discovery of admissible evidence. Plaintiffs[] object to this request for production because this matter has been abated. Plaintiffs[] also object because the probative value, if any, is outweighed by the burden of producing this information. Plaintiffs[] object to this request because it is a request for confidential and proprietary information.
Request No. 6: Please produce all documents pertaining to the "Motor Vehicle" exclusion in the homeowners policy issued to the Jarvis[] family.
Response: Objection, work product and attorney client privileges. Objection, not reasonably calculated to lead to the discovery of admissible evidence. Plaintiffs[] object to this request for production because this matter has been abated. You already have a copy of the policy. Subject to these objections, a ...

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