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04-19-00700-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
10/10/2019 6:15 PM

No. __________________
04-19-00700-CV __

In The Fourth Court Of Appeals

In re IMPLICITY MANAGEMENT COMPANY

Relator

ORIGINAL PROCEEDING FROM THE 37TH JUDICIAL DISTRICT COURT, BEXAR


COUNTY, TEXAS
CAUSE NO. 2016CI11 019, THE HONORABLE CATHLEEN STRYKER, PRESIDING

PETITION FOR WRIT OF MANDAMUS

Robert W. Loree
State Bar No. 12579200
rob@ lhllawfirm.com
Cassandra Pruski
State Bar No. 24083690
cassie@l h llawfi rm. com
Stephen M. Fields
State Bar No. 24096598
stephen@lhllawfirm .com

LOREE & LIPSCOMB


777 E. Sonterra Blvd., Suite 320
San Antonio, Texas 78258
Telephone: (21 0) 404-1320
Facsimile: (21 0) 404-1310

Attorneys for Relator

(Relator is also requesting emergency relief)


ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL

Pursuant to Rule 522.3(a) of the Texas riles of Appellate Procedure,


the following is a complete list of all parties and the names and addresses
of all counsel:

1. Relator (Plaintiff in the trial court):


lmplicity Management Company

2. Counsel for Relator:


Robert W. Loree
State Bar No. 12579200
rob@lhllawfirm.com
Stephen M. Fields
State Bar No. 24096598
stephen@lhllawfirm.com
Loree & Lipscomb
The Terrance at Concord
777 E. Sonterra Blvd, Suite 320
San Antonio, Texas 78258
Telephone: (21 0) 404-1320
Facsimile: (210) 404-1310

3. Respondent:
The Honorable Cathleen M. Stryker
Judge of the 224th District Court of Bexar County, Texas
Bexar County Civil Court
100 Dolorosa, 4th Floor
San Antonio, Texas 78205

4. Real Party in Interest (Defendant in the trial court):


American Risk Insurance Company

5. Counsel for Real Party in Interest:


Ray R. Ortiz
State Bar No. 15324280
ray@ob-lawpc. com
Edward J. Batis, Jr.
State Bar No. 01915470

II
ed@ob lawpc.com
ORTIZ & BATIS, P.C.
10100 Reunion Place, Suite 600
San Antonio, Texas 78216
Telephone: (21 0) 344-3900
Facsimile: (21 0) 366-4301

iii
TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL. .................................................. ii

INDEX OF AUTHORITIES ......... ................................................................ vi

STATEMENT OF THE CASE ..................................................................... 1

Nature of the case ................... ................................................................. 1

The Motion to Compel Discovery and the Order at Issue ......................... 2

STATEMENT OF JURISDICTION .............................................................. 3

STATEMENT REGARDING ORAL ARGUMENT ........................................ 3

STATEMENT REGARDING THE RECORD ............................................... 3

ISSUE PRESENTED .................................................................................. 4

STATEMENT OF FACTS ........................................................................... 4

SUMMARY OF THE ARGUMENT .............................................................. 9

ARGUMENTS AND AUTHORITIES ......................................................... 10

A. Standard of Review .......................................................................... 10

IV
B. The Compelled Discovery is Improper and Irrelevant under Texas
Law .................................................................................................. 12

C. Judge Stryker's order arbitrarily applied the law, prior order in the
case, and the Texas Rules of Civil Procedure ................................. 15

1. The trial court's inconsistent and arbitrary application of Lloyds I and


II. ................................................................................................... 15

2. Judge Stryker's order violates previous court orders and the Texas
Rules of Civil Procedure ................................................................ 17

3. ARIC's inconsistent contentions before Judge Stryker................... 18

D. Relator Has No Adequate Remedy By Appeal ................................. 20

PRAYER FOR RELIEF ............................................................................. 22

CERTIFICATION ...................................................................................... 23

CERTIFICATE OF COMPLIANCE ............................................................ 23

CERTIFICATE OF SERVICE .................................................................... 24

INDEX TO APPENDIX .............................................................................. 25

v
INDEX OF AUTHORITIES

Cases

Dillard Department Stores, Inc. v. Hall, 909 S.W.2d 491, 492 (Tex. 1995)
......................................................................................................... 10,11

In re Allstate County Mutua/Insurance Co., 227, S.W.3d at 668 ......... 20, 21

In re Cerberus Capital Management, L.P., 164 S.W.3d 379, 382 (Tex.


2005) ..................................................................................................... 11

In re CSX Corp., 124 S.W.3d 149, 153 (Tex. 2003); ................................. 11

In re Graco Children's Products, Inc., 210 S.W.3d 598,600 (Tex. 2006) .. 10

In re Nat'/ L/oyds Ins. Co., 449 S.W.3d 486 (Tex. 2014) .............................. .
.................................. 3, 4, 6, 7, 8, 9, 10,11 12, 14, 15, 16, 18, 19, 20,21

In re National L/oyds Ins. Co., 2017 WL 2501107, at *1 (Tex. June 9, 2017)


.............................................................................................................. 19

In re National Lloyds Insurance Co., 507 S.W.3d 219 (Tex. 2016) .............. ..
.......................................... ..... 3, 4, 6, 7, 8, 9, 10, 12,14,15, 16, 19, 20,21

In re Prudential Insurance Co. of America, 148 S.W.3d 124, 136 (Tex.


2004) ..................................................................................................... 11

In re State Farm Lloyds, No. 04-98-00018-CV, 1998 WL 161260 (Tex.


App.-San Antonio April 8, 1998, orig. proceeding) ............................... 13

In re Texas Windstorm Insurance Association, No. 09-18-00446-CV, 2019


WL 1387107, at *3 (Tex. App.-Beaumont Mar. 28, 2019) ... 11, 12, 14, 16

Viles v. Security National Ins. Co., 788 S.W.2d 566, 567 (Tex. 1990) ....... 14

Weiser Brown Operating Company v. St. Paul Surplus Lines Insurance,


801 F.3d 512, 526 (5th Cir. 2015)( ......................................................... 14

vi
Statutes

Texas Constitution, Art. 5 § 6 ...................................................................... 3

TEX. Gov. CODE ANN. §22.221 (a) ................................................................. 3

TEX. R. APP. P. 52.7 .................................................................................... 3

TEX. R. CIV. P. 199.5 (comment 4) .... .. ...................................................... 18

VII
TO THE HONORABLE JUSTICES OF THE FOURTH COURT OF

APPEALS:

Relator, lmplicity Management Company (hereinafter "lmplicity"), files

this petition for writ of mandamus concerning Respondent, the Honorable

Cathleen M. Stryker's September 16, 2019 discovery order. By this petition,

lmplicity will show that the order of Judge Cathleen Stryker, judge presiding

for the 37th District Court of Bexar County, Texas, that granted Real Party

in Interest, American Risk Insurance Company, Inc.'s (hereinafter "ARIC"),

motion to compel discovery was an abuse of discretion and was not proper.

STATEMENT OF THE CASE

Nature of the case

This is a breach of contract and bad faith insurance case concerning

an unpaid insurance claim arising from a March 31, 2013 hail and

windstorm damage to Villa Dijon Condominiums (hereafter "Villa Dijon")

located in San Antonio, Texas. lmplicity is the agent and property

management company for Villa Dijon. lmplicity procured property insurance

policy for the condominium complex from ARIC to cover the property

against windstorm and hail, among other perils, and is the named insured

under that policy.

lmplicity made an insurance claim to ARIC for the subject loss. Even

1
though ARIC's investigating adjuster determined that the March 31, 2013

hail storm had caused $124,814.83 in damage to the roofs of the Villa Dijon

Condominiums, ARIC never made a claims decision. On July 1, 2016,

lmplicity filed suit against ARIC alleging breach of contract, violations of the

Texas Insurance Code, violations of the Texas Deceptive Trade Practices

act, and violations of the duty of good faith and fair dealing, seeking actual,

statutory, and bad faith damages, and attorney's fees.

The Respondent

The Respondent is the Honorable Cathleen M. Stryker, Judge of the

224th Civil District Court of Bexar County. The underlying case is pending

in the 37th Civil District Court, but Real Party in Interest's motion to compel

discovery was assigned by the Presiding Court to Judge Stryker for a

hearing.

The Motion to Compel Discovery and the Order at Issue:

On September 16, 2019, Judge Cathleen M. Stryker signed and

entered an order granting ARIC's motion to compel discovery concerning

future deposition testimony for all witnesses in this case. This order

permitted ARIC to depose and question all witnesses in the case on a

subsequent, unrelated insurance claim of lmplicity with a different insurer

on a later storm. The order also held that lmplicity could not instruct a

2
witness not to answer deposition questions on this topic. (MR 3-9)

STATEMENT OF JURISDICTION

This Court has jurisdiction to issue a writ of mandamus under Article

5 section 6 of the Texas Constitution and Section 22.221 (a) of the Texas

Government Code. Mandamus is the proper procedure to remedy a trial

court order compelling over broad and irrelevant discovery. See In re

National L/oyds Insurance Co., 449 S.W.3d 486 (Tex. 2014) (hereinafter

"L/oyds f'); In re National Lloyds Insurance Co., 507 S.W.3d 219 (Tex.

2016) (hereinafter "L/oyds If'); See a/so, e.g., In re Graco Children's

Products, Inc., 210 S.W.3d 598, 600 (Tex. 2006)(per curiam).

STATEMENT REGARDING ORAL ARGUMENT

lmplicity requests oral argument because oral argument should aid

the Court in understanding the issues involved in this matter and because

the law is clear that insureds are barred from discovery of third-party

insurance claims requested from insurers under Lloyds I and L/oyds II, but

to date that prohibition has not been applied when an insurer requests

discovery of an insured's claims involving third parties.

STATEMENT REGARDING THE RECORD

Relator is filing a sworn mandamus record pursuant to Rule 52.7 of

the Texas Rules of Appellate Procedure. Relator refers to the record items

3
using the designation (MR __), meaning Mandamus Record at the

designated page.

ISSUE PRESENTED

1. Under the Texas Supreme Court's holdings in Lloyds I and Lloyds II,
does a trial court abuse its discretion by allowing an insurer to
question deposition witnesses about an unrelated, subsequent
insurance claim of the insured, the claims handling involved in that
later claim, and the litigation thereon with an unrelated insurer (a third
party) on a subsequent, different storm?

2. Did the trial court abuse its discretion by applying Lloyds I and Lloyds
II only to ARIC (the insurer) to prohibit discovery requested by
lmplicity (the insured) and then refusing to apply those same holdings
to ARIC and allowing ARIC to obtain discovery from lmplicity on its
unrelated, subsequent insurance claim with a different insurer (a third
party)?

3. Did the trial court abuse its discretion by overruling another judge's
previous order in the case and by limiting lmplicity's rights under the
Texas Rules of Civil Procedure?

STATEMENT OF FACTS

lmplicity purchased an insurance policy from ARIC (Policy Number

CLA012180-1) to cover property losses for numerous properties including

the Villa Dijon Condominiums at 100 Lorenz Road, San Antonio, Texas

78209 for the policy period of April 1, 2012 to April 1, 2013. (MR 11)

lmplicity is the agent for the condominium association, Villa Dijon

Condominium Association, Inc., for its insurance claims and for the

procurement of the subject insurance policy from ARIC for the association.

4
(MR 11)

On or about March 31, 2013, during the subject policy period, a wind

and hail storm caused damage to the roofs of the Villa Dijon

Condominiums. lmplicity thereafter reported this loss to ARIC and its

agents, who assigned this loss the claim number of 2015-02520. (MR 11)

ARIC hired an independent adjuster, Dennis Tharpe of John T.

Parker Claims Service (hereinafter "Tharp"), to investigate lmplicity's storm

damage insurance claim. (MR11) Tharp determined that the March 31,

2013 hail storm had caused hail damage to the roofs of all 15 buildings

comprising the Villa Dijon Condominiums in the replacement cost amount

of $124,814.83 for the March 31, 2013 date of loss. (MR 11)

After the Tharpe's inspection, lmplicity did not hear anything from

ARIC concerning whether ARIC was accepting or denying the claim. (MR

13) Since lmplicity did not hear from ARIC, lmplicity sent ARIC a March

23, 2016 demand letter. (MR 13) On July 1, 2016, lmplicity filed suit against

ARIC after ARIC failed to resolve the claim. (MR 13)

On October 24, 2017, during the litigation, lmplicity took the

deposition of Larry. Simmons, ARIC's vice president of claims or corporate

representative. At this deposition, Mr. Simmons discussed that it was

previously common practice for ARIC to send out examinations under oath

5
letters to its insureds. (MR 21) Mr. Simmons also revealed that the Texas

Department of Insurance (hereinafter "TDI") sanctioned ARIC for similar

conduct. (MR 21)

After this deposition, lmplicity sent ARIC requests for production

requesting documents pertaining to sanctions and fines imposed on ARIC

by the Texas Department of Insurance for its conduct that was mirror image

of its conduct in this claim. (MR 24-27) ARIC objected to these requests

citing Lloyds I and Lloyds II and took the position that "insurance claims are

inherently individual and information regarding other claims is not probative

of or relevant. .. " (MR 30-40) lmplicity filed a motion to compel ARIC to

produce its documents regarding these TDI's sanctions. (MR 20-23 )

During the hearing before Judge Richard Price on lmplicity's motion to

compel, ARIC contended that insurance claims involving third parties were

not discoverable under Lloyds I and Lloyds II. (MR 47-48) Judge Price

agreed and signed an August 2, 2018 order denying lmplicity's motion to

compel. (MR 134)

ARIC requested lmplicity's corporate representative's deposition on

April 12, 2019. (MR 136-39) In this deposition notice, ARIC listed

numerous topics on which it sought testimony regarding insurance claims

involving third parties and noticed the deposition for May 3, 2019. (MR 136-

6
139) lmplicity filed a motion to quash the deposition because of the overly

broad and irrelevant topics for the corporate representative. As the basis

for its objections, lmplicity used ARIC's prior arguments to Judge Price,

Judge Price's ruling, and Lloyds I and L/oyds II. (MR 140-142) ARIC set

lmplicity's motion to quash for a hearing. On June 5, 2019, lmplicity's

motion to quash was heard before Judge Sakai. Judge Sakai would not

give a general discovery rule pertaining to ARIC's topics, but ordered that

the deposition go forward and that lmplicity could assert its objections to

ARIC's deposition questions and had the right to instruct the deponent not

to answer objectionable questions. ARIC could then certify those questions

to the court and have a hearing on them if it disagreed with lmplicity's

objections. (MR 143-144) Judge Sakai signed and entered the order on this

hearing on July 10, 2019. (MR 143-144)

ARIC noticed the deposition of lmplicity's corporate representative

with the same topics for June 20, 2019. (MR 353-358) On June 18 and 19,

2019, lmplicity filed written objections to ARIC's overbroad topics relying on

L/oyds I and L/oyds II and Judge Price previously ruling. (MR 145-165 &

172-173) On June 20, 2019, during the deposition of lmplicity's corporate

representative, lmplicity's counsel objected and instructed the witness not

to answer questions concerning a subsequent insurance claim made by

7
lmplicity for a later storm at the Villa Dijon Condominiums, the claims

handling involved in that later claim, and the litigation thereon with an

unrelated third party insurer. (MR 187-354)

Thereafter, ARIC filed motion to compel the answers to those

questions and for sanctions. (MR 174-186) Pursuant to Judge Sakai's

order, ARIC presented certified questions in its motion for a ruling. Almost

all of those certified questions involved the above described third party

insurance claim. (MR 386-389) lmplicity filed its response to ARIC's motion

asserting that the information sought in the certified questions was not

discoverable under Lloyds I and Lloyds II and that ARIC had previously

used Lloyds I and Lloyds II to prevent discovery by lmplicity of ARIC

documents concerning its TDI sanctions, which involved third party

insurance claims. (MR 390-398)

ARIC's motion to compel was heard on August 30 and September 2,

2019 before Judge Stryker. On September 16, 2019, Judge Stryker signed

an order that ARIC could re-depose lmplicity's corporate representative

and that "with regard to any witness deposed in this matter: Any questions

asked related to . . . . the insurance claim related to the 2016 storm [the

unrelated, subsequent insurance claim of lmplicity with a subsequent,

different insurer on a later storm] are to be answered without an instruction

8
not to answer being asserted by counsel." (MR 3-9)

Judge Stryker's order contravened Judge Sakai's previous July 2,

2019 order that allowed lmplicity the right to assert objects at depositions to

ARIC's questions and instruct the witness not to answer and then allowed

ARIC to certify any such questions to the court during a subsequent

hearing for determination. (compare MR 3-9 with MR 143-144) Judge

Stryker's September 16, 2019 order is the subject of this writ of mandamus.

SUMMARY OF THE ARGUMENT

Judge Stryker's order violates the Texas Supreme Court's holdings in

L/oyds I and Lloyds II. By ordering lmplicity to answer deposition questions

concerning a subsequent insurance claim made by lmplicity on the Villa

Dijon Condominiums for a later storm filed with a different insurer, the

claims handling involved in that later claim, and the litigation thereon with

the third party subsequent insurer, the trial court has acted arbitrarily and

has failed to apply the rules of discovery equally to both parties.

Contrary to the trial court's previous rulings which limited discovery by

lmplicity on other insurance claims involving ARIC and third parties, the trial

court subsequently ordered that those limits to discovery do not apply to

discovery by ARIC on other insurance claims involving lmplicity and third

parties. In doing so, it granted overly broad, irrelevant, and impermissible

9
discovery.

ARIC has not shown and cannot show how discovery of a

subsequent lmplicity insurance claim with a different insurer on a later

storm is relevant to any issues in this case, and not just an impermissible

"fishing exhibition." Moreover, ARIC has also led the court into error by

improperly seeking and obtaining the unequal and inconsistent applications

of Lloyds I and L/oyds II. Fairness, equity and justice demand the equal

application of the holdings in Lloyds I and Lloyds II to both insurers and

insureds.

The trial court's order also prevented lmplicity from asserting its rights

under the Texas Rules of Civil Procedure and Judge Sakai's previous

order. Under these circumstance and the holdings in Lloyds I and Lloyds II,

lmplicity has no adequate remedy by appeal at law but for the equitable

intervention of this Court. As a result, by this writ of mandamus, lmplicity

seeks an order directing the trial court to vacate its September 16, 2019

order and hold that all discovery in this case is governed by Lloyds I and

Lloyds II, making insurance claims with third parties irrelevant.

ARGUMENTS AND AUTHORITIES

A. Standard of Review

"A discovery order that compels overly broad discovery 'well outside

10
the bounds of proper discovery' is an abuse of discretion for which

mandamus is the proper remedy." In re Graco Children's Products, Inc.,

210 S.W.3d 598, 600 (Tex. 2006) (per curiam); Dillard Department Stores,

Inc. v. Hall, 909 S.W.2d 491, 492 (Tex. 1995) (per curiam). Such overly

broad discovery includes document production permitting a litigant to

explore whether it can maintain an allegation in good faith, otherwise

known as a "fishing expedition." Dillard, 909 S.W.2d at 492. Nor should a

trial court permit a litigant to use depositions for an impermissible "fishing

expedition." See In re Texas Windstorm Insurance Association, No. 09-18-

00446-CV, 2019 WL 1387107, at *3 (Tex. App.-Beaumont Mar. 28,

201 9)( orig. proceeding).

A trial court abuses its discretion if it reaches a decision so arbitrary

and unreasonable as to constitute a clear and prejudicial error of law, or if it

clearly fails to correctly analyze or apply the law. In re Cerberus Capital

Management, L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding). In

determining whether mandamus should issue, the Court examines whether

the relator has an adequate remedy by appeal, evaluating whether the

benefits of mandamus review are outweighed by the detriments. In re

Prudential Insurance Co. of America, 148 S.W.3d 124, 136 (Tex. 2004).

Mandamus is appropriate in instances where the discovery sought is

11
patently irrelevant, because the discovery order imposes a burden on the

producing party far out of proportion to any benefit that may inure the

requesting party. In re CSX Corp., 124 S.W.3d 149, 153 (Tex. 2003); See

also In re National L/oyds Ins. Co. 449 S.W.3d 486, 488 (Tex. 2014).

B. The Compelled Discovery is Improper and Irrelevant under


Texas Law.

It is well settled law that information regarding other insurance claims

involving third parties is irrelevant and is not discoverable. L/oyds I and

L/oyds II, supra. In addressing this issue, the Texas Supreme Court has

specifically stated that insurance claims dealing with "unrelated third

parties" is not probative. See In re National Lloyds Ins. Co., 449 S.W.3d at

489. The Texas Supreme Court also noted that each claim has many

variables and factors and to compare different claims is at best an

"impermissible fishing expedition." /d.

More recently, in In re Texas Windstorm Insurance Association, the

plaintiff obtained an order compelling Texas Windstorm Insurance

Association (hereafter "TWIA") to produce a corporate representative to

testify to how TWIA has changed its coverage dispositions in litigation not

only on plaintiff's claims but other insureds. See In re Texas Windstorm

Insurance Association, 2017 WL 1387107 at *1. The Ninth Court of

12
Appeals held that the trial court abused its discretion by allowing testimony

on other insurance claims besides the case at hand citing L/oyds I. /d. at *3.

Prior to L/oyds I and //, the Fourth Court of Appeals in In re State

Farm Lloyds reached the same result that the Supreme Court did. In that

case, the Fourth Court reviewed a trial court order compelling State Farm

to produce claim files involving foundation repair over a two year period. In

reState Farm L/oyds, No. 04-98-00018-CV, 1998 WL 161260 (Tex. App.-

San Antonio April 8, 1998, orig. proceeding) (not designated for

publication). In granting mandamus, this Court held that the trial court

abused its discretion when it compelled discovery of third party insurance

claims. /d. at *5. The court found that plaintiff's justification was irrelevant,

rendering the request for other claims files to be overly broad.

The subject claim involves a March 31, 2013 hail storm that ARIC

adjusted in September and October of 2015, but never made a claims

decision. In its second amended motion to compel before Judge Stryker,

ARIC did not specify how or why its certified questions attached to Judge

Stryker's order concerning the 2016 subsequent insurance claim were

relevant to any of the claims or defenses it had in this case. (MR 174-186)

Nevertheless and contrary to well settled law, ARIC sought and the trial

court ordered lmplicity to give testimony regarding another insurance claim

13
arising from a later April 12, 2016 storm involving a different insurance

carrier that happened after the subject claim was adjusted. (MR 174-186)

ARIC erroneously asserted that it was seeking this testimony to

defend itself in the present litigation. (MR 179) It is totally illogical to the

point of absurdity to contend, however, that future acts involving a 2016

claim and its adjustment by and litigation with a third party have any

relevance to ARIC's handling of lmplicity's insurance claim in September

and October of 2015. In this respect, an insurer is required to make a

claims decision based on the information gathered at the time of the

adjustment. It is well established Texas law that whether there is a

reasonable basis for a denial of a claim must be judged by the facts before

the insurer at the time of the claim. See Viles v. Security National Ins. Co.,

788 S.W.2d 566, 567 (Tex. 1990).

ARIC's request for future information is contrary to established law

and not discoverable. See Weiser Brown Operating Company v. St. Paul

Surplus Lines Insurance, 801 F.3d 512, 526 (5th Cir. 2015)(Evidence of

post-litigation conduct was properly excluded). In any event, any

information that lmplicity would testify to regarding future events from a

subsequent claim with a future, different insurer will still be irrelevant to any

question of what ARIC owed on the March 31, 2013 storm. See In re

14
National Lloyds Ins. Co., 449 S.W.3d at 489; See also In re Texas

Windstorm Insurance Association, 2019 WL 1387107 at *3. As noted in

L/oyds I and Lloyds II, not only is such information irrelevant, but it is also

nothing more than an impermissible "fishing exhibition."

C. Judge Stryker's order arbitrarily applied the law, prior order in the
case, and the Texas Rules of Civil Procedure.

Not only was Judge Stryker's order contrary to well settled law, but it

was an abuse of discretion because ( 1) it was inconsistent with previous

trial court orders; (2) it arbitrarily overruled Judge Sakai's previous order

concerning instructing a witness not to answer questions during a

deposition, and (3) it arbitrarily limited lmplicity's rights under the Texas

Rules of Civil Procedure to object at a deposition and instruct a witness not

to answer. This order was a clear violation of the law that was detrimental

and prejudicial to lmplicity's legal rights.

1. The trial court's inconsistent and arbitrary application of


Lloyds I and II.

As discussed herein, the trial court barred lmplicity from discovery of

claims involving ARIC and third parties and upheld ARIC's objections under

Lloyds I and //. Contrary to ARIC's assertions that other insurance claims

are not relevant to the case at hand, ARIC then sought testimony from

lmplicity regarding other insurance claims. In this respect, ARIC used

15
Lloyds I and II as a shield and then ignored those holdings when it did not

suit them and led the trial court into error by contending before Judge

Stryker that Lloyds I and Lloyds II did not apply to an unrelated, subsequent

insurance claim of lmplicity, the claims handling involved in that later claim,

and the litigation thereon with an unrelated insurer on a subsequent,

different storm. This inconsistent application of Lloyds I and Lloyds II was

arbitrary and should not have been allowed.

In Judge Price's order, the trial court appeared to follow Texas law

that other insurance claims with third parties are not relevant or

discoverable. In Judge Stryker's order, however, the same court ruled that

other insurance claims with third parties are discoverable depending on

who is asking for the discovery. This holding appears even more arbitrary

and inconsistent when viewed in light of the fact that ARIC proffered no

reason, evidence, or circumstance to show that the scenario was different

for an insured as opposed to an insurer. In its motion, ARIC never argued

why Lloyds I and Lloyds II did not apply to its discovery requests or whether

ARIC's discovery requests was some sort of exception to Lloyds I and

Lloyds II. As a result, Judge Stryker's order fails to adhere to Texas

jurisprudence and constitutes a clear abuse of discretion. See In re

National L/oyds Ins. Co., 449 S.W.3d at 489; See a/so In re Texas

16
Windstorm Insurance Association, 2019 WL 1387107 at *3.

2. Judge Stryker's order violates previous court orders and the


Texas Rules of Civil Procedure.
Judge Sakai previously ruled that for the same depositions (that were

the subject of the hearing before Judge Stryker), the court would not limit or

broaden the scope of any questioning before the depositions. (MR 416)

More importantly, in his July 10, 2019 order, Judge Sakai ruled that

lmplicity's counsel could assert objections and instruct the deponent not to

answer, and then ARIC could certify any of those unanswered questions to

the court in a subsequent hearing for determination. (MR 143-144) This

order properly laid out the procedure for resolving unanswered, certified

questions under the Texas Rules of Civil Procedure.

Judge Stryker, however, ignored this proper procedure in her

September 16, 2019 order. (MR 3-9) Instead, she made a general ruling

with regard to any witness deposed in this case that all deposition

questions concerning the subsequent 2016 insurance claim had to be

answered without an instruction not to answer being asserted by counsel

even before knowing what the question would be.

This order is an abuse of discretion for multiple reasons. First, Judge

Stryker should have given deference to Judge Sakai's previous order,

which was before her during the hearing, and should not have arbitrarily

17
overruled it. Second, the request for a general ruling was not in ARIC's

motion and Judge Stryker ordered it sua sponte. It is not only overly broad,

but it also grants relief that was not even requested in ARIC's motion to

compel. Third, her order violates due process and the Texas Rules of Civil

Procedure. Comment 4 to Rule 199 of the Texas rules of Civil Procedure

specifically allows counsel to instruct a witness not to answer misleading,

confusing, and abusive questions, including questions that inquire into

matters clearly beyond the scope of discovery or that are argumentative,

repetitious, or harassing. See TEX. R. C1v. P. 199.5 (comment 4). Judge

Stryker's order abrogates lmplicity's rights under Rule 199 by arbitrarily

limiting when it can instruct a witness not to answer an objectionable

question at a deposition. Judge Stryker's September 16, 2019 order was

arbitrary, a clear violation of previous court orders and Texas law, and an

abuse of discretion requiring it to be set aside.

3. ARIC's inconsistent contentions before Judge Stryker.

Judge Stryker heard ARIC's motion to compel on August 30 and

September 2, 2019. In its motion, ARIC's counsel argued against the

application of L/oyds I and II and that ARIC was entitled to discovery on

lmplicity's 2016 subsequent insurance claim with a different insurer. (MR

174-186)

18
The same day, on August 30, 2019, ARIC's responses to lmplicity's

fourth requests for production was due. Instead of serving its responses

through the court's filing system like ARIC had always done giving

opposing counsel same day delivery, it filed a notice with the court that the

responses were being mailed to lmplicity's counsel's office. (MR 491-492)

When lmplicity's counsel received the discovery responses for the first time

on September 3, 2019 after the conclusion of the hearing with Judge

Stryker, they learned that ARIC had made inconsistent contentions

concerning the discoverability of third party claims. (MR 480-489)

Before Judge Stryker, ARIC had contended that Lloyds I and Lloyds II

did not apply. (MR 174-186) On the other hand, in its discovery responses

objecting to documents that ARIC had generated or obtained concerning

lmplicity's subsequent 2016 claim with a different insurer, ARIC

inconstantly stated:

"To the extent this request seeks the discovery of other claims,
it exceeds the scope of permissible discovery based on
principles recently reiterated by the Texas Supreme Court. First
insurance claims are inherently individual and information
regarding other claims is not probative or relevant to Plaintiff's
contractual or extracontractual claims. See In re Nat'/ Lloyds
Ins. Co., 449 S.W.3d 486 (Tex. 2014)(orig. proceeding)(per
curiam. Second, such discovery will lead to "unnecessary case-
within-a-case litigation." In re National Lloyds Ins. Co., 2017 WL
2501107, at *1 (Tex. June 9, 2017). Third, this request is based
on speculation and surmise and does not "bear ... a reasonable
expectation of obtaining information that will aid the dispute's

19
resolution." In re Defendant Lloyds, 2017 WL 232 2323099, at
*12 (Tex. May 26, 2017).

(MR 487-488).

ARIC did not deliver this response on August 30, 2019 to lmplicity's

counsel because it knew that lmplicity would have used it during the

hearing before Judge Stryker to show that ARIC was talking out of both

sides of its mouth. In this respect, it appears that ARIC was attempting to

lead Judge Stryker into error. Regardless, ARIC cannot have it both ways

and have Lloyds I and Lloyds II applied inconsistently to suit its desired

outcome and pull the "proverbial wool" over the court's eyes.

D. Relator Has No Adequate Remedy By Appeal

In weighing the costs and benefits of mandamus to determine

whether a relator has an adequate remedy by appeal, the Court is mindful

of the potential relevance of the discovery ordered versus the costs

incurred by the producing party relative to the amount in dispute. In re

Allstate County Mutual Insurance Co., 227, S.W.3d at 668. In instances

where the discovery sought is irrelevant and the burden on the producing

party potentially exceeds the underlying claim, mandamus should issue.

/d.; L/oyds I and Lloyds II, supra.

In this instance, lmplicity's corporate representative has already been

deposed and testified at length about the 2013 insurance claim, which is

20
the subject of this lawsuit. Now ARIC not only wants to re-depose

lmplicity's corporate representative on the subsequent third party insurance

claim involving a different insurer, but it also wants to depose Villa Dijon's

corporate representative on those same irrelevant topics. (MR 174-186)

ARIC wants this deposition, despite lmplicity's counsel proposed stipulating

that the testimony will be the same since the corporate representative is the

same person. As the Texas Supreme Court noted in In re Allstate County

Mutual Ins. Co., "[d]iscovery is a tool to make the trial process more

focused, not a weapon to make it more expensive." In re Allstate County

Mutua/Insurance Co., 227, S.W.3d at 668.

The same is true in this case. lmplicity has brought this cause of

action because despite ARIC's independent adjuster finding damage from

a storm covered under the policy, ARIC did not accept or deny coverage

and has delayed the claim in bad faith. Now four years after the claim was

turned in, ARIC is attempting to harass lmplicity and Villa Dijon with

irrelevant, abusive, and impermissible discovery, which has resulted in

numerous hearings in the trial court. As discussed in Allstate and Lloyds I

and Lloyds II, the proper remedy for such an order is mandamus because

lmplicity would have no adequate remedy on appeal. Once the answers are

given, lmplicity has no relief from such abusive, time consuming, costly,

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and irrelevant discovery.

PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Relator, lmplicity

Management Company, respectfully requests that this Court grant its

petition for writ of mandamus, vacate the trial court's September 16, 2019

order and award Relator such other relief as may be proper.

Respectfully submitted,

Loree & Lipscomb


777 E. Sonterra Blvd., Ste 320
San Antonio, Texas 78258
Telephone: (21 0) 404-1320
Facsimile: (21 0) 404-1310

Robert W. Lor e
State Bar No.
Cassandra Pruski
State Bar No. 24083690
Stephen Fields
State Bar No. 24096598

Attorneys for Relator

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CERTIFICATION

I certify that I have reviewed the petition for writ of mandamus and have
concluded that every factual statement made in the petition is supported by
competent evidence in the appendix or the

CERTIFICATE OF COMPLIANCE

The undersigned hereby certifies that this document contains 4,054


words pursuant to Rule 9.4(i) of the Texas Rules of Appellate Procedure.

Robert W. Loree

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CERTIFICATE OF SERVICE

As required by Texas Rules of Appellate Procedures 6.3 and 9.5(b),


(d), (e), I certify that I have served this document on all other parties, which
are listed below, on this the 1Oth day October, 2019 as follows:

The Hon. Cathleen Stryker


224th Judicial District Court VIA OVERNIGHT MAIL
Bexar County Civil Court
100 Dolorosa, 4th Floor
San Antonio, TX 78205
Respondent

Ray R. Ortiz
State Bar No. 15324280 Via Electronic Filing
Edward J. Batis, Jr.
State Bar No. 01915470
ORTIZ & BATIS, P.C.
101 00 Reunion Place, Suite 600
San Antonio, Texas 78216
Counsel for American Risk Insurance Co., Inc.

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Valuta