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In re Perry

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

April 18, 2019

IN RE ERNEST PERRY

          On Petition for Writ of Mandamus.

          Before Chief Justice Contreras and Justices Benavides and Longoria

          MEMORANDUM OPINION

          DORI CONTRERAS CHIEF JUSTICE [1]

         Relator Ernest Perry filed a petition for writ of mandamus and supplemental petition for writ of mandamus in the above cause seeking to compel the trial court to order the deposition of a representative of the real party in interest, State Farm Mutual Automobile Insurance Company (State Farm).[2] We conditionally grant the petition for writ of mandamus in part and deny it in part.

         I. Background

         Perry filed suit against State Farm in cause number 2018-CV-3342-DC in the 267th District Court of Calhoun County, Texas. In his "Original Petition," Perry alleged that he was injured in an automobile accident proximately caused by another driver, Rene Barrientes, who was driving an underinsured[3] vehicle. Perry alleged that he was an insured driver of State Farm and that he was bringing the lawsuit to recover benefits pursuant to his State Farm policy regarding uninsured/underinsured (UM/UIM) motorist coverage. State Farm had not paid Perry these benefits, and thus Perry alleged a cause of action against State Farm for breach of contract. He further sought a declaratory judgment that he "was a covered person under a policy of insurance issued by [State Farm] at the time of the collision," that he "had uninsured/underinsured coverage under the policy of insurance" issued by State Farm, "that an uninsured/underinsured driver, Rene Barrientes, was the 'at-fault' party," and that Barrientes "was negligent and/or negligent per se and said negligence was the proximate cause" of Perry's injuries.

         In response to Perry's petition, State Farm filed its "Special Exceptions and Original Answer," which included a general denial, the denial of conditions precedent, special exceptions, and a request for offsets and credits. State Farm specially excepted to Perry's petition because it failed to "state the factual basis for any breach of contract" and because it failed to "establish standing or a right to proceed" under the Uniform Declaratory Judgment Act. See Tex. Civ. Prac. & Rem. Code Ann. §§ 37.001 -.011 (West, Westlaw through 2017 1st C.S.). In its denial of conditions precedent, State Farm denied that Perry had "fully complied with all terms of the insurance policy as a condition precedent to bringing this suit in that Plaintiff has failed to present sufficient information to Defendant to show Plaintiffs entitlement to the benefits claimed under the policy." State Farm requested offsets and credits as to Perry's damages "including the amounts paid or payable by the other vehicle's liability insurance company and Personal Injury Protection benefits paid by Defendant." State Farm also pleaded that Perry's request for attorney's fees was "not applicable or are moot." State Farm generally denied Perry's claims and requested that Perry "be required to prove the charges and allegations against Defendant by a preponderance of the evidence as is required by the Constitution and laws of the State of Texas."

         Perry filed a notice of intent to take the deposition of a representative or representatives of State Farm. He requested State Farm to produce the witness or witnesses having the most knowledge of the following areas:

1. Any policy(ies) of insurance issued or underwritten by the Defendant applicable to the collision made the subject of this suit;
2. The occurrence or non-occurrence of all condition(s) precedent under the contract, including, but not limited to, coverage by the Defendant; collision with an underinsured motorist; injury to the Plaintiff; and compliance by the Plaintiff with the terms and conditions of his policy(ies);
3. Plaintiffs reasonableness and necessity of past and future medical bills caused by the collision made the subject of this suit;
4. Any facts supporting Defendant's legal theories and defenses;
5. Any information regarding Defendant's experts;
6. The amount and basis for the Defendant's valuation of the Plaintiff's damages; and
7. The nature and causation of Plaintiff's alleged injuries sustained in the collision made the basis of this suit.
8. The damage sustained by all vehicles involved in the collision at issue;
9. Whether Rene Barrientes was an uninsured/underinsured motorist at the time of the collision;
10. Whether Rene Barrientes was driving an uninsured/underinsured vehicle at the time of the collision;
11. Defendant's contention that Plaintiff has failed to "fully comply with all terms of the insurance policy as a condition precedent to bringing this suit in that Plaintiff failed to present sufficient information to Defendant to show Plaintiff's entitlement to the benefits claimed under the policy";
12. Whether the term "uninsured/underinsured motor vehicle" is correctly defined in the Defendant's insurance policy at ...

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