NUMBER 13-21-00264-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

 

IN RE OLD REPUBLIC INSURANCE COMPANY

 

On Petition for Writ of Mandamus.

 

MEMORANDUM OPINION

Before Justices Longoria, Hinojosa, and Tijerina

Memorandum Opinion by Justice Tijerina1

Relator Old Republic Insurance Company (Old Republic) has filed a petition for 

writ of mandamus through which it asserts that: (1) the trial court abused its discretion by 

denying Old Republic’s motions to sever and abate extracontractual claims from a 

contract claim for policy benefits; (2) the trial court abused its discretion in permitting

discovery on extracontractual claims, given that those claims should have been severed 

1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not 

required to do so. When granting relief, the court must hand down an opinion as in any other case.”); id. R. 

47.4 (distinguishing opinions and memorandum opinions).
2

and abated from the contract claim and because the scope of discovery was improper; 

and (3) an appeal after trial is not an adequate remedy for the trial court’s abuses of 

discretion.

2 We conditionally grant the petition for writ of mandamus.

I. BACKGROUND

The following sequence of events is derived from the original petition filed by Uhr 

Real Estate, Inc. (Uhr) against Old Republic in the underlying case. According to the 

petition, David and Valerie Fallas owned a home in Rockport, Texas, which was damaged 

in 2017 by Hurricane Harvey. The homeowners contracted with Uhr to repair the damage 

and make additional improvements to the property. Uhr subcontracted with Williams 

Insulation Company, Inc. (Williams) to install insulation at the property. The contract 

between Uhr and Williams required Williams to designate Uhr as an additional insured on 

Williams’s general liability insurance policy with Old Republic. According to Uhr’s petition, 

Williams did so. 

The repairs and improvements at the property were completed; however, the 

homeowners subsequently telephoned Mark Uhr, the owner of Uhr, to investigate a 

swollen bathroom door. Mark investigated and concluded through visual inspection and 

thermal imaging that the insulation had not been correctly installed, causing excessive 

moisture and visible mold in several locations throughout the property. The homeowners

requested Uhr to remediate and repair, and Uhr made some efforts to minimize the 

homeowners’ damages. Uhr notified Williams of the problems and suspected causation, 

2 This original proceeding arises from trial court cause number A-20-0068-CV-C in the 343rd 

District Court of Aransas County, Texas, and the respondent is the Honorable Janna Whatley. See id.

R. 52.2.
3

and an adjuster from Old Republic and an additional inspector examined the property. 

Williams made some repairs at the home but did not assume responsibility for the water 

infiltration, mold, and related damages. Ultimately, the homeowners made a claim against 

Uhr, which Uhr presented to Old Republic. Old Republic denied that Uhr was an additional 

insured and denied any coverage under its insurance policy. 

Uhr thus filed suit against Old Republic for breach of contract and unfair insurance 

practices.

3 Uhr alleged that it was an additional insured under the insurance policy and 

that Old Republic had breached its duties under the contract “by refusing to cover the 

owners’ claims against UHR” and that Old Republic “failed to step forward and manage 

the claim of the owners to minimize the damages owed by UHR and generally denied that 

UHR is an Additional Insured under the policy in question.” Uhr alleged that Old Republic 

had violated §§ 541 and 542 of the Texas Insurance Code by:

a. committing unfair settlement practices as such terms are defined for 

purposes of § 17.46(b) of the Texas Business and Commerce Code, 

Texas Deceptive Trade Practices Act (DTPA);

b. misrepresenting to UHR a material fact or policy provision, relating 

to the coverage at issue, i.e.[,] that UHR was not an Additional 

Insured under Williams’ OLD REPUBLIC policy;

c. falling to attempt in good faith to effectuate a prompt, fair and 

equitable settlement of a claim with respect to which OLD 

REPUBLIC’s liability had become reasonably clear;

d. failing to provide promptly to UHR a reasonable explanation of the 

basis in the policy, in relation to the facts or applicable law, for OLD 

REPUBLIC’s denial of UHR’s claims;

e. failing within a reasonable time to (1) affirm or deny coverage of 

3 According to the petition for writ of mandamus, the homeowners filed suit against Williams that 

same day. The homeowners had assigned their claims against Williams to Rockport Entities, Inc., an entity 

owned by Mark Uhr
4

UHR’s claim to UHR, or (2)·submit a reservation of rights to UHR;

f. refusing, failing[,] or unreasonably delaying an offer of settlement 

under UHR’s first-party coverage on the basis that other coverage 

may be available or that third parties are responsible for the damages 

suffered, except as may be allowed by the policy;

g. refusing to pay a claim without conducting a reasonable investigation 

with respect to the claims;

h. making a material misstatement of the law, i.e.[,] that since no suit 

against UHR has been filed, UHR is not an Additional Insured under 

OLD REPUBLIC’s policy; and

i. failing to affirm or deny coverage within a reasonable period of time.

See TEX. INS. CODE ANN. §§ 541.001–.454 (governing unfair methods of competition and 

unfair or deceptive acts or practices); id. §§ 542.001–.302 (governing the processing and 

settlement of claims). 

On June 2, 2021, Uhr served a notice of intention to take the oral deposition of a 

representative of Old Republic, identifying twenty-one topics for the deposition and 

including a subpoena duces tecum requiring the production of ten different categories of 

documents.

On June 7, 2021, Old Republic filed a motion to sever and abate Uhr’s 

extracontractual claims from its breach of contract claims. Old Republic asserted that 

Uhr’s contractual claims and extracontractual claims were independent and that an 

insured cannot prevail on extracontractual claims without first showing that the insurer 

breached the contract. It asserted that it would lose “substantial rights” without severing 

the extracontractual claims from the breach of contract claims. Old Republic further 

argued that abatement was “necessary because the scope of permissible discovery
5

differs in contract and extracontractual claims, and without abatement, the parties will be 

required to conduct discovery on claims that may be disposed of in a previous trial.” Old 

Republic supported its motion with the following exhibits as identified therein: 

A. September 19, 2019, Settlement Demand from the Fallases and Uhr

to Williams[,]

B. September 10, 2019, Correspondence from counsel for the Fallases 

and Uhr to Old Republic regarding joint representation[,]

C. December 10, 2019, demand letter from the Fallases and Uhr to Old 

Republic[,]

D. Old Republic Insurance Policy (Note: Filed under separate motion 

seeking confidentiality protection)[,]

E. December 23, 2019, Denial Letter in response to demand[,]

F. February 25, 2020, assignment to Rockport Properties[, and]

G. Offer to settle breach of contract claim, and rejection in response 

(redacted)[.]

That same day, Old Republic also filed a motion to quash and for protective order 

regarding Uhr’s notice of intention to take the oral deposition of Old Republic’s corporate 

representative. Old Republic alleged that the notice encompassed “matters related to the 

extracontractual claims and unrelated third-party claims.” Old Republic sought protection 

from the deposition notice “given the need for severance and abatement of the 

extracontractual claim[s].”

On or about July 13, 2021, Uhr filed a response to Old Republic’s motion to sever 

and abate. Uhr objected to the documentation attached to Old Republic’s motion on 

various grounds, including an assertion that some lacked “any evidentiary foundation,” or 

that the documentation “constituted hearsay if offered for the truth of the matters stated 
6

and [was] irrelevant if not.” Uhr also objected to the “alleged” insurance policy “because 

it [had] not been authenticated or shown to be applicable to the claims in question.” Uhr 

alleged that Old Republic’s factual background was “often erroneous and mostly 

misleading.” Uhr argued that there had been “virtually no discovery done” in the case, 

and “[n]o one knows the facts.” Uhr thus asserted that there was no evidence that its 

claims for breach of contract were essentially different from its statutory bad faith claims. 

Uhr also alleged that it should be allowed to depose Old Republic’s corporate 

representative.

On July 14, 2021, the trial court held a non-evidentiary hearing on Old Republic’s 

motions to sever and abate and to quash the deposition. At the hearing, while 

contemplating its ruling, the trial court explained that it would proceed with discovery even 

if it were to grant severance and abatement because otherwise, it “would be more 

expensive and prejudicial to everybody, not having the discovery combined.” That same 

day, the trial court denied Old Republic’s motion to quash and motion for protective order. 

The following day, the trial court denied Old Republic’s motion to sever and abate. 

This original proceeding ensued. This Court requested that Uhr, or any others 

whose interest would be directly affected by the relief sought, file a response to the 

petition for writ of mandamus. Uhr filed a response in opposition to Old Republic’s claims.

The parties further favored the Court with additional briefing: Old Republic filed a reply to 

Uhr’s response, and Uhr filed a sur-reply thereto.

4

4 Uhr filed a first amended original petition after Old Republic instituted this original proceeding. 

The amended pleading incorporates the causes of action alleged against Old Republic in Uhr’s original 

petition, breach of contract and statutory violations, and includes additional claims for conspiracy and fraud. 

Uhr alleged that Old Republic “either misrepresented that the Williams Insulation policy provided the general 
7

II. STANDARD OF REVIEW

“Mandamus relief is an extraordinary remedy requiring the relator to show that 

(1) the trial court clearly abused its discretion and (2) the relator lacks an adequate 

remedy on appeal.” In re Acad., Ltd., 625 S.W.3d 19, 25 (Tex. 2021) (orig. proceeding); 

see In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36, 138 (Tex. 2004) (orig. 

proceeding); Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992) (orig. proceeding). 

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

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

analyze or apply the law. See In re Cerberus Cap. Mgmt., L.P., 164 S.W.3d 379, 382 

(Tex. 2005) (orig. proceeding) (per curiam); Walker, 827 S.W.2d at 839–40. We 

determine the adequacy of an appellate remedy by balancing the benefits of mandamus 

review against the detriments. In re Acad., Ltd., 625 S.W.3d at 25; In re Essex Ins. Co., 

450 S.W.3d 524, 528 (Tex. 2014) (orig. proceeding) (per curiam); In re Prudential Ins. Co. 

of Am., 148 S.W.3d at 136. Appeal is an inadequate remedy to address the trial court’s 

failure to sever extracontractual claims from contractual claims and in such cases, 

mandamus relief is appropriate. See, e.g., In re State Farm Mut. Auto. Ins., 629 S.W.3d 

866, 878 & n.7 (Tex. 2021) (orig. proceeding) (collecting cases). 

liability coverage required under the UHR-Williams Insulation contract[] or failed to advise UHR that such 

coverage was changed after the contract was made.” Uhr further alleged that Old Republic and Williams 

“conspired to misrepresent the coverage provided to Additional Insureds or to change the coverage without 

notifying UHR after the contract was made.” It is a fundamental tenet of mandamus practice that an 

appellate court reviews the actions of the trial court based on the record before the court at the time it 

makes its ruling. See Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 556 (Tex. 1990) (orig. proceeding); Sabine 

OffShore Serv., Inc. v. City of Port Arthur, 595 S.W.2d 840, 841 (Tex. 1979) (orig. proceeding) (per curiam); 

Hudson v. Aceves, 516 S.W.3d 529, 539–40 (Tex. App.—Corpus Christi–Edinburg 2016, no pet.) 

(combined app. & orig. proceeding); In re Taylor, 113 S.W.3d 385, 392 (Tex. App.—Houston [1st Dist.] 

2003, orig. proceeding). Our review here is based on the record that was before the trial court at the time 

of its ruling.
8

III. SEVERANCE AND ABATEMENT

By its first issue, Old Republic asserts that the trial court abused its discretion by 

denying Old Republic’s motion to sever and abate Uhr’s extracontractual claims from 

Uhr’s breach of contract claim for policy benefits. In contrast, Uhr asserts that its 

contractual claims are interwoven with its statutory claims and involve the same facts and 

issues, and thus severance is inappropriate. Uhr further asserts that in the absence of 

findings of fact and conclusions of law, we must presume that the trial court made all 

findings necessary to support its ruling, and that ruling must be upheld on any legal theory 

that finds support in the evidence. Finally, Uhr assails the settlement offer made by Old 

Republic as “additional evidence of the bad faith practices” in which Old Republic has 

engaged. Uhr argues that the amount of the settlement offer, and Old Republic’s failure 

to continue negotiations after Uhr made a counteroffer, indicate that Old Republic “never 

intended to negotiate in good faith” and was simply “seeking a legal loophole . . . in 

support of its planned Motion to Sever and Abate.” Uhr also contends that Old Republic’s 

argument and most of its authorities relate to uninsured or underinsured motorist claims, 

and those cases are legally dissimilar to the case at hand.

A. Severance

Texas Rule of Civil Procedure 41 governs severance. See TEX. R. CIV. P. 41. Rule 

41 provides, in part, that “[a]ctions which have been improperly joined may be 

severed . . . on such terms as are just. Any claim against a party may be severed and 

proceeded with separately.” Id. The Texas Supreme Court has held that 

A claim is properly severable if (1) the controversy involves more than one 

cause of action, (2) the severed claim is one that would be the proper 
9

subject of a lawsuit if independently asserted, and (3) the severed claim is 

not so interwoven with the remaining action that they involve the same facts 

and issues. 

Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 658 (Tex. 1990); 

see In re State, 355 S.W.3d 611, 614 (Tex. 2011) (orig. proceeding); F.F.P. Operating 

Partners, L.P. v. Duenez, 237 S.W.3d 680, 693 (Tex. 2007). “The controlling reasons for 

a severance are to do justice, avoid prejudice, and further convenience.” Guar. Fed. Sav. 

Bank, 793 S.W.2d at 658; see F.F.P. Operating Partners, L.P., 237 S.W.3d at 693. “Trial 

courts have broad discretion to sever claims, and a severance is improper only if the trial 

court abused its discretion in ordering the severance.” State v. Morello, 547 S.W.3d 881, 

889 (Tex. 2018); see Guar. Fed. Sav. Bank, 793 S.W.2d at 658; F.F.P. Operating 

Partners, L.P., 237 S.W.3d at 693. Nevertheless, the trial court has a duty to order 

severance when “all of the facts and circumstances of the case unquestionably require a 

separate trial to prevent manifest injustice, and there is no fact or circumstance supporting 

or tending to support a contrary conclusion, and the legal rights of the parties will not be 

prejudiced thereby.” Womack v. Berry, 291 S.W.2d 677, 682–83 (Tex. 1956) (orig. 

proceeding); see In re State Farm Mut. Auto. Ins., 629 S.W.3d at 877.

B. Contractual and Extracontractual Insurance Claims

The Texas Supreme Court originally addressed the severance and abatement of 

contractual and extracontractual insurance claims in Liberty National Fire Insurance Co. 

v. Akin. 927 S.W.2d 627, 628–32 (Tex. 1996) (orig. proceeding). There, the trial court 

denied the insurer’s motion to sever and adjudicate a breach of contract claim before 

proceeding to trial on a bad faith insurance claim in a homeowner’s insurance property 
10

damage case. Id. at 628. The supreme court concluded that there was no abuse of 

discretion. Id. In refusing to grant mandamus relief, the supreme court rejected “an 

inflexible rule that would deny the trial court all discretion and . . . require severance in 

every case, regardless of the likelihood of prejudice.” Id. at 630; see In re Allstate Tex. 

Lloyds, 202 S.W.3d 895, 899 (Tex. App.—Corpus Christi–Edinburg 2006, orig. 

proceeding [mand. denied]) (denying mandamus relief regarding the severance of 

contractual and extracontractual claims based on the Akin standard). Ultimately, the 

supreme court concluded that the contractual and extracontractual claims were 

interwoven, that most of the evidence was admissible on both claims, and that any 

prejudicial effect of a unified trial could be ameliorated by appropriate limiting instructions. 

Akin, 927 S.W.2d at 628. However, the supreme court placed express limitations on its 

holding:

A severance may nevertheless be necessary in some bad faith cases. A 

trial court will undoubtedly confront instances in which evidence admissible 

only on the bad faith claim would prejudice the insurer to such an extent 

that a fair trial on the contract claim would become unlikely. One example 

would be when the insurer has made a settlement offer on the disputed 

contract claim. As we have noted, some courts have concluded that the 

insurer would be unfairly prejudiced by having to defend the contract claim 

at the same time and before the same jury that would consider evidence 

that the insurer had offered to settle the entire dispute. While we concur with 

these decisions, we hasten to add that evidence of this sort simply does not 

exist in this case. In the absence of a settlement offer on the entire contract 

claim, or other compelling circumstances, severance is not required.

Id. at 630 (internal citations omitted); see In re Miller, 202 S.W.3d 922, 925–26 (Tex. 

App.—Tyler 2006, orig. proceeding); In re Trinity Universal Ins., 64 S.W.3d 463, 468 (Tex. 

App.—Amarillo 2001, orig. proceeding [mand. denied]). Thus, the supreme court 

acknowledged that contractual and extracontractual claims are factually interwoven, yet 
11

there are instances where severance would nonetheless be required. See Akin, 927 

S.W.2d at 628–30. Following Akin, Texas courts have repeatedly held that a trial court 

abuses its discretion by denying a motion to sever and abate in a case against an insurer 

alleging a breach of contract and extracontractual theories when the insurer has made a 

settlement offer. See, e.g., In re Progressive Cnty. Mut. Ins., 622 S.W.3d 91, 98 (Tex. 

App.—San Antonio 2020, orig. proceeding); In re Progressive Cnty. Mut. Ins., 439 S.W.3d 

422, 426 (Tex. App.—Houston [1st Dist.] 2015, orig. proceeding); In re Allstate Cnty. Mut. 

Ins., 447 S.W.3d 497, 503 (Tex. App.—Houston [1st Dist.] 2014, orig. proceeding); In re 

Am. Nat. Cnty. Mut. Ins., 384 S.W.3d 429, 435–37 (Tex. App.—Austin 2012, orig. 

proceeding); In re Hochheim Prairie Farm Mut. Ins. Ass’n, 296 S.W.3d 907, 913 (Tex. 

App.—Corpus Christi–Edinburg 2009, orig. proceeding); see also In re Germania Ins., 

No. 13-18-00102-CV, 2018 WL 1904911, at *1 (Tex. App.—Corpus Christi–Edinburg Apr. 

23, 2018, orig. proceeding) (mem. op.). 

The Texas Supreme Court more recently addressed the propriety of severing or 

bifurcating contractual causes of action and extracontractual causes in In re State Farm 

Mutual Automobile Insurance Company. See 629 S.W.3d at 870–78. In that case, the 

supreme court concluded that in the “unique context” of uninsured/underinsured motorist 

(UM/UIM) litigation, the “common bifurcation process makes sense for at least two 

reasons.” Id. at 876. First, “bifurcation tends to preserve judicial resources” because the 

statutory claims might be rendered moot by a determination of non-liability, and the 

insurer should not have to undergo the expenses of litigating and conducting discovery 

on issues that might not be necessary. Id. Second, “bifurcation of trial is proper because 
12

evidence of the insurer’s settlement offer may be admissible in one phase of the trial but 

inadmissible in the other.” Id.

C. Findings of Fact and Conclusions of Law

Uhr argues that because the trial court made no findings of fact or conclusions of 

law, we must presume that the trial court made all findings necessary to support its ruling, 

and that ruling “must not be disturbed if it can be upheld on any legal theory that finds 

support in the evidence.”

“When, as here, no findings of fact or conclusions of law are requested or filed, we 

imply all findings that are necessary to support the trial court’s ruling and supported by 

the evidence.” BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002); 

see Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam); In re Stutsman, 

612 S.W.3d 695, 697 (Tex. App.—Texarkana 2020, orig. proceeding). The Texarkana 

Court of Appeals has explained the application of this principle in the context of severance 

as follows:

The issue of whether a trial court should or should not grant a severance 

motion is ultimately a question of law. When considering whether to grant a 

severance motion, the trial court must generally accept the plaintiff’s 

pleadings as true and then determine whether severance is 

appropriate . . . . If the trial court’s decision to grant or deny a party’s 

severance motion fell within the wide zone of reasonable agreement, the 

appellate court reviewing that decision within the context of a mandamus 

proceeding should not conclude the lower court abused its discretion. Given 

that the trial court must generally accept the plaintiff’s pleadings as true, the 

only remaining dispute concerns the legal consequences stemming from 

those accepted-as-pleaded facts.

In re Liu, 290 S.W.3d 515, 520 (Tex. App.—Texarkana 2009, orig. proceeding) (internal 

citations omitted); see In re Stutsman, 612 S.W.3d at 697. We agree with Uhr’s 
13

contentions regarding our review and apply that standard here. 

D. Analysis

In this case, Uhr’s extracontractual claims against Old Republic are dependent on 

the resolution of its contract claims. Stated otherwise, Uhr’s alleged damages are not 

independent of its alleged right to receive policy benefits. In re State Farm Mut. Auto. Ins. 

Co., 629 S.W.3d at 874–75; USAA Tex. Lloyds Co. v. Menchaca, 545 S.W.3d 479, 499–

500 (Tex. 2018). Further, Old Republic has made a settlement offer. When a settlement 

offer has been made, the parties have conflicting and competing interests in excluding 

and admitting evidence of the offer of settlement:

Absent severance, an insurer is presented with a “Catch–22” in that its 

decision to admit or exclude evidence of a settlement offer jeopardizes the 

successful defense of the other claim. For instance, in defending against a 

contract claim, the insurer will insist on exercising its right to exclude 

evidence of a settlement offer to negate liability. Conversely, in defending 

against extra[]contractual claims, an insurer will insist on exercising its right 

to admit evidence of a settlement offer to negate liability. Thus, by having 

to defend against these two types of claims simultaneously and before the 

same jury absent severance, an insurer is prejudiced to such an extent that 

a fair trial is unlikely. Under such a scenario, the trial court has no choice 

but to sever in order to protect the fairness of the proceedings and the 

interests of the parties. 

In re State Farm Mut. Auto. Ins., 395 S.W.3d 229, 234 (Tex. App.—El Paso 2012, orig. 

proceeding) (internal citations omitted); see In re Am. Nat. Cnty. Mut. Ins. Co., 384 S.W.3d 

at 434–35; In re Allstate Ins. Co., 232 S.W.3d 340, 343 (Tex. App.—Tyler 2007, orig. 

proceeding); see also In re St. Paul Surplus Lines Ins., No. 14-12-00443-CV, 2012 WL 

2015796, at *2 (Tex. App.—Houston [14th Dist.] June 1, 2012, orig. proceeding) (mem. 

op.) (per curiam) (“This court repeatedly has held that extra[]contractual claims must be 

severed and abated when the insurer has made a settlement offer on the contract claim”). 
14

As noted previously, Uhr alleges that the settlement offer “was less than 2.7% of 

the value” of its breach of contract claims, was “made in bad faith” only after Uhr would 

not agree to severance and abatement, and Old Republic failed to continue in 

negotiations after making the original settlement offer. However, based on the record 

before us, there can be no dispute that Old Republic offered to settle Uhr’s claim. Uhr 

cites no authority in support of its position that any of the foregoing alleged circumstances 

affect the determination regarding severance. 

Finally, we note that Uhr alleges that the foregoing law is centered on UM/UIM 

litigation and is thus inapplicable to this case. We disagree. These general tenets apply 

to other insurance cases and not just cases involving UM/UIM litigation. See Akin, 927 

S.W.2d at 628 (considering claims made under homeowner’s insurance); In re Tex. Farm 

Bureau Underwriters, 374 S.W.3d 651, 654 (Tex. App.—Tyler 2012, orig. proceeding)

(considering an insurance claim regarding a lawsuit for wrongful death); In re Allstate Ins., 

232 S.W.3d at 342 (considering an insurance claim regarding automobile damage caused 

by falling tree); see also In re Progressive Cas. Ins., No. 12-20-00220-CV, 2020 WL 

6065933, at *1 (Tex. App.—Tyler Oct. 14, 2020, orig. proceeding) (mem. op.) (considering 

a claim for property damage to the hull of a 2001 Skeeter ZX Bass Boat); In re Century 

Sur. Co., No. 07-15-00386-CV, 2015 WL 6689532, at *1 (Tex. App.—Amarillo Nov. 2, 

2015, orig. proceeding) (mem. op.) (considering a property damage claim following a 

hailstorm); In re St. Paul Surplus Lines Ins., 2012 WL 2015796, at *1 (considering a claim 

for property damage and business income losses); In re Maryland Cas. Co., No. 04-06-

00413-CV, 2006 WL 2135052, at *1 (Tex. App.—San Antonio Aug. 2, 2006, orig. 
15

proceeding) (mem. op.) (considering a claim for theft).

E. Conclusion

Based upon our review of the record, we hold that Uhr’s extracontractual claims 

against Old Republic are severable. We also conclude that “all of the facts and 

circumstances of the case unquestionably require a [severance] to prevent manifest 

injustice, there is no fact or circumstance supporting or tending to support a contrary 

conclusion, and the legal rights of the parties will not be prejudiced thereby . . . . ” See 

Womack, 291 S.W.2d at 683; In re Hochheim Prairie Farm. Mut. Ins. Ass’n, 296 S.W.3d 

at 912; In re Gen. Agents Ins. Co. of Am., 254 S.W.3d 670, 674 (Tex. App.—Houston 

[14th Dist.] 2008, orig. proceeding). Accordingly, we hold that the trial court abused its 

discretion in denying Old Republic’s motion for severance and abatement. We sustain 

Old Republic’s first issue.

IV. DISCOVERY

In its second issue, Old Republic asserts that the trial court abused its discretion 

by permitting discovery on extracontractual issues because “the extracontractual issues 

should be severed and abated from the contract claim and because the requested 

discovery is improper.” According to Old Republic, the trial court abused its discretion in 

allowing the deposition of its corporate representative to take place. In this regard, Old 

Republic alleges that “almost all” of the twenty-one topics in Uhr’s deposition notice and 

“most” of the ten categories of documents requested by subpoena duces tecum are 

relevant or relate to Uhr’s extracontractual claims. Old Republic alleges that “engaging in 

a deposition and requesting documents on the extracontractual claims before there has 
16

been a finding of breach of contract will cause [an] unnecessary burden and discovery 

expense[s].” In contrast, Uhr alleges that the requested discovery is essential for both the 

contractual and extracontractual claims.

The Texas Supreme Court has instructed us that discovery “may not exceed the 

bounds of the claims at issue.” In re USAA Gen. Indem. Co., 624 S.W.3d 782, 791 (Tex. 

2021) (orig. proceeding). And “[a] plaintiff may not obtain discovery on an unasserted, 

abated, or unripe bad-faith claim under the guise of investigating a claim for benefits.” Id.

Thus, “inquiry into extracontractual matters such as the claims-handling process is 

improper before entitlement to benefits under the policy has been established.” Id. As 

acknowledged by the supreme court, “the line between a proper inquiry for relevant 

information and an improper inquiry into the claims-handling process may be a fine one.

Id.

Here, the deposition notice seeks testimony and documentation regarding, inter 

alia, Old Republic’s investigation of the claims, its “defenses, if any,” to Uhr’s statutory 

causes of action, and its settlement efforts. We agree with Old Republic that the scope of 

the proposed deposition exceeds the bounds of the contract claims at issue. See id.

Accordingly, we conclude that the trial court abused its discretion in denying Old 

Republic’s motion to quash and motion for protective order. See id. Accordingly, we 

sustain Old Republic’s second issue. In so ruling, we note that when the trial court 

considers the scope of discovery for the underlying contract case, the trial court should 

exercise discretion to differentiate between discovery appropriate to contractual claims 

and discovery encompassing extracontractual claims, and to impose any other necessary 
17

and appropriate limitations as the case may require.

5

V. APPELLATE REMEDY

In its third and final issue, Old Republic asserts that it lacks an adequate remedy 

by appeal. In its response to the petition for writ of mandamus, Uhr asserts that it “does 

not contest the assertion that, had error been committed, there would be no adequate 

remedy on appeal.”

Examining the facts and circumstances of this case, we conclude that Old Republic 

lacks an adequate remedy by appeal regarding the trial court’s ruling on severance and 

abatement. See generally In re State Farm. Mut. Auto. Ins., 629 S.W.3d at 878 (collecting 

cases). Further Old Republic lacks an adequate remedy by appeal for the trial court’s 

discovery ruling because the deposition as noticed exceeds the permissible scope of 

discovery as described above. See In re USAA Gen. Indem. Co., 624 S.W.3d at 795.

Accordingly, we sustain Old Republic’s third and final issue.

VI. CONCLUSION

The Court, having examined and fully considered the petition for writ of mandamus, 

the response, the reply, the additional briefing, and the applicable law, is of the opinion 

that Old Republic has met its burden to obtain relief. Accordingly, we conditionally grant 

the petition for writ of mandamus. We direct the trial court to vacate its order of July 14, 

2021, denying Old Republic’s motion to quash and motion for protective order, and its 

5 Old Republic also argued that the discovery sought by deposition was impermissible because it, 

inter alia, related to the lawsuit filed by the homeowners against Williams and implicated the party-agent 

communication privilege. Given our ruling that the trial court erred in allowing both extracontractual and 

contractual discovery, we need not address these additional arguments here. These matters are devoted 

to the discretion of the trial court in further proceedings.
18

order of July 15, 2021, denying Old Republic’s motion to sever and abate, and to issue 

an order severing Uhr’s extracontractual claims against Old Republic and abating the 

severed cause. We are confident that the trial court will act promptly in accordance with 

this opinion, and our writ will issue only if the trial court fails to comply.

JAIME TIJERINA

Justice

Delivered and filed on the

5th day of January, 2022.