Court of Appeals of Texas, Twelfth District, Tyler
IN RE: YORK RISK SERVICES GROUP, INC., BRAD SELPH, AND SELPH ARMS, LLC, RELATOR
consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
Risk Services Group, Inc. (York), Brad Selph (Selph), and
Selph Arms, L.L.C. (Selph Arms) filed this original
proceeding in which they challenge the trial court's
order requiring the production of certain
documents. In two issues, Relators maintain that the
trial court abused its discretion by ordering them to produce
privileged documents and that they have no adequate remedy by
appeal. We conditionally grant the writ.
Hall was employed by F&D Defense, L.L.C., a weapons
manufacturer. According to Hall, he invented a device to
reduce a problem with certain rifles. He shared this
invention with Jesus Gomez from LWRC International, LLC
(LWRC). In July 2013, Hall sued LWRC in Comal County for
defamation based on forum posts disclaiming his involvement
in the invention. In October 2013, Hall sued Selph and later
added Selph Arms to the suit. Hall alleged that Selph made
false and disparaging comments regarding Hall's
involvement in the invention.
Arms had a general liability policy with Granite State
Insurance Company (Granite), which contained a duty to defend
provision. York was Granite's claims administrator. On
October 25, Selph submitted a claim for a defense under the
policy. James Beltrante, a York employee, was Selph's
claims adjuster. On November 6, York informed Selph that it
was investigating whether Selph's claim was covered.
February 2014, LWRC sued Hall and F&D in federal court
asserting various causes of action. Hall also sued LWRC in
federal court for correction of inventorship. That May,
F&D settled LWRC's lawsuit against it. Like Selph
Arms, F&D had a commercial general liability insurance
policy with Granite. The policy contained a duty to defend
provision. On August 11, Hall filed a claim for a defense on
F&D's policy. Beltrante was assigned to Hall's
claim. LWRC subsequently dismissed its case against F&D.
Hall settled with LWRC in September 2014.
December 18, 2014, York informed Selph that Granite would
"continue to furnish the defense with regard to the
entire Corby Hall lawsuit; however you may wish to retain
your own counsel, at your own expense, to participate with
respect to any uncovered claims." In September 2015,
Hall was denied coverage under F&D's policy because
he did not qualify as an insured. The denial letter explained
that (1) Hall's employment with F&D terminated on or
about April 24, 2014 and at the time Hall provided notice of
his claim, on or about August 13, he was no longer an
employee with F&D; and (2) even if he qualified as an
insured, he was not entitled to coverage for affirmative
claims, i.e., those against LWRC.
October 27, 2015, Hall sued York, Granite, and AIG Claims,
Inc. for various causes of action. Specifically, Hall sued York
for violations of the insurance code and the Texas Deceptive
Trade Practices Act. He alleged a conflict of interest based
on York's investigation of Selph's claim in
Hall's lawsuit against Selph at the time that Hall filed
his claim with York. In May 2017, Hall filed an emergency
motion to compel discovery based on York's refusal to
produce documents in response to the following requests:
Produce each Claim Management Review ("CMR")
document which relates to Brad Selph's request for
coverage regarding 0902B. This request does not pertain to
privileged portions of the related documents, if any.
Produce each document containing coverage investigations,
notes, memorandums, and conclusions which relate to Brad
Selph's request for coverage regarding 0902B. This
request does not pertain to privileged portions of the
related documents, if any.
Produce each email communication between You and Brad Selph
which relates to Brad Selph's request for coverage
"0902B" refers to Hall's lawsuit against Selph,
trial court cause number 2013-0902B. York objected to these
requests, in part, on grounds that the requests sought
"confidential and/or proprietary documents pertaining to
another insured concerning litigation in which [Hall] was the
claimant." The trial court granted Hall partial relief
and ordered that the following documents be produced:
Non-privileged portions of Claim Note entries from York's
Claims Connect system with respect to York File No. LXFD -
1720A1 (Brad Selph's Request for a defense under Policy
Non-privileged email communications between James Beltrante
on the one hand, and Brad Selph and/or James Bettersworth on
the other hand, from October 24, 2013 to May 21, 2015.
order allowed York to redact portions of the documents it
claimed to be privileged, provide a privilege log on or
before May 25, and submit documents for in camera review on
or before May 25. On May 25, York provided a privilege log
and tendered multiple documents for in camera review.
30, Hall's counsel provided a letter to the trial court,
in which it alleged that York's redacted documents and
privilege log reflected an attempt to "improperly shield
communications behind baseless assertions of attorney-client
privilege and/or work product." On June 30, the trial
court issued a supplemental order determining that York
"failed to make a prima facie case of privilege[,
]" and ordering York to provide Hall with unredacted
versions of documents that were "created, sent,
received, or maintained by York between October 25, 2013 and
December 18, 2014[.]" This original proceeding followed.
is an extraordinary remedy. In re Sw. Bell Tel. Co.,
L.P., 235 S.W.3d 619, 623 (Tex. 2007) (orig.
proceeding). A writ of mandamus will issue only when the
relator has no adequate remedy by appeal and the trial court
committed a clear abuse of discretion. In re Cerberus
Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005)
(orig. proceeding). The relator has the burden of
establishing both of these prerequisites. In re
Fitzgerald, 429 S.W.3d 886, 891 (Tex. App.-Tyler 2014,
orig. proceeding.). "[M]andamus will not issue when the
law provides another plain, adequate, and complete
remedy." In re Tex. Dep't of Family &
Protective Servs., 210 S.W.3d 609, 613 (Tex. 2006)
issue one, York maintains that mandamus review is appropriate
in this case because there is no ...