Opinion issued October 5, 2017

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-17-00363-CV

———————————

IN RE LIBERTY COUNTY MUTUAL INSURANCE COMPANY, Relator

Original Proceeding on Petition for Writ of Mandamus

OPINION

In this original proceeding, Liberty County Mutual Insurance Company seeks 

relief from the trial court’s order compelling discovery related to severed and abated 

claims arising from uninsured/underinsured motorist insurance coverage.

1 We 

conditionally grant relief.

 

1 The underlying case is Latrisha Morris v. Liberty County Mutual Insurance 

Company, cause number 2016-28433, pending in the 165th District Court of Harris 

County, Texas, the Honorable Ursula A. Hall presiding.
2

Background

The underlying suit arises out of a car accident that occurred in May 2014. 

Latrisha Morris was injured when her vehicle was struck by a vehicle driven by 

Amitbhali Momim. 

Morris was insured under an automobile insurance policy underwritten by 

Liberty Mutual. The insurance policy provides for uninsured/underinsured motorist 

coverage. Under this provision, Liberty Mutual is obligated to “pay compensatory 

damages which [Morris] is legally entitled to recover from the owner or operator of 

an ‘uninsured motor vehicle’ because of ‘bodily injury:’ (1) sustained by an 

‘insured;’ and (2) caused by an accident.”

In May 2016, Morris sued Momim and Liberty Mutual, asserting that 

Momim’s negligence caused the accident and that Momim was not insured for it. 

Against Liberty Mutual, Morris sought declaratory relief that Liberty was 

contractually liable under the insurance policy, and asserted both contractual and 

extra-contractual fraud and statutory claims against it based on its failure to pay 

policy benefits.

A. Severance and Abatement of Extra-Contractual Claims

Liberty Mutual moved to sever the contractual and extra-contractual claims 

against it into a separate action and to abate all activity related to these claims. See 

Brainard v. Trinity Universal Ins. Co., 216 S.W.3d 809, 818 (Tex. 2007). The trial 
3

court granted the motion in part, and it severed and abated all pending causes of 

action against Liberty Mutual except for Morris’s claims for breach of contract and 

declaratory judgment. Thus, the extra-contractual claims were severed and abated 

but the contractual claims continued to proceed in the underlying case.

B. Plaintiff’s Discovery Requests

Morris subsequently served Liberty Mutual with interrogatories, requests for 

admissions, and requests for production. These requests sought discovery of Liberty

Mutual’s claims history, the basis for its alleged denial of Morris’s claim for

uninsured motorist coverage, prior similar lawsuits, and internal policies and 

procedures concerning uninsured motorist investigations. Examples from the 

interrogatories include requests that Liberty Mutual:

 “[S]tate the amount of all settlement offers made by [Liberty Mutual] 

in an effort to resolve Plaintiff’s claim prior to suit being filed and the 

method you used and how you calculated this amount and/or Plaintiff’s 

damages.”

 “State the procedures relied upon and the criteria utilized by [Liberty 

Mutual] in its investigation of Plaintiff’s claim to evaluate and place a 

dollar value on her claim.”

 “Identify every person who participated to any degree in the 

investigation and adjusting of the claims, defenses, or issues involved 

in this case, describe the involvement of each person identified, list their 

qualifications, state the dates of each investigation, and whether it was 

reduced to writing and describe in detail the investigation and 

information gathering process that they utilized to assist you in your 

decision to deny or adjust payment of Plaintiff’s claim.”
4

 “Identify every person who has complained, within the past five (5) 

years in Texas, about any claim adjustment and/or denial based on any 

of the reasons that you contend support your adjustment and/or denial 

of Plaintiffs claim.”

 Provide the following information for the last five years: (a) “the total 

number of written claims filed, including the original amount filed for 

by the insured and the classification by line of insurance of each 

individual written claim;” (b) “the total number of written claims 

denied,” (c) “the total number of written claims settled, including the 

original amount filed for by the insured, the settled amount, and the 

classification of line of insurance of each individual settled claim;” (d)

“the total number of written claims for which lawsuits were instituted 

against [Liberty Mutual], including the original amount filed for by the 

insured, the amount of final adjudication, the reason for the lawsuit, and 

the classification by line of insurance of each individual written claim;”

and (e) “the total number of complaints, their classification by line of 

insurance, the nature of each complaint, the disposition of these 

complaints, and the time it took to process each complaint.”

Liberty Mutual filed objections and responses to the requests, contending that 

the requested discovery was irrelevant to any current cause of action because a cause 

of action for uninsured motorist benefits does not arise until the underlying tort suit 

is resolved:

To the extent Plaintiff seeks to recover [uninsured motorist] benefits, 

there has been no legal determination that Defendant is under any 

contractual duty to pay benefits, and there presently exists no legally 

cognizable basis for Plaintiff to request information concerning any 

cause of action for Breach of Contract, Common Law Bad Faith, and/or 

violations of the Texas Insurance Code or Texas Deceptive Trade 

Practices Act, Breach of Fiduciary Duty, Fraud or recovery of attorney's 

fees because they are immaterial and irrelevant to the underlying tort 

lawsuit and thus not reasonably calculated to lead to the discovery of 

admissible evidence as to any viable claims or causes of action against 

this Defendant. See Brainard v. Trinity Universal Insurance Company, 

216 S.W.3d 809, 818 (Tex. 2007).
5

Liberty Mutual’s claims adjuster, Marianne Cagle, reviewed and verified the 

discovery responses. Morris requested Cagle’s deposition. Consistent with its 

objections to the discovery requests, Liberty Mutual responded that there was no 

basis to depose Cagle until the issues of liability, damages, and coverage are 

resolved.

C. Liberty Mutual’s Motion to Quash Deposition

Liberty Mutual moved to quash the deposition of Cagle as overbroad, 

harassing, and irrelevant to the issues of liability, damages, and coverage. Liberty

Mutual stipulated that it had issued a policy of insurance to Morris, that the policy 

included uninsured motorist benefits, and that the underlying accident is a covered 

event. But Liberty Mutual asserted that “the only issues involved in this lawsuit is 

the liability of [Morris] and the alleged tort-feasor, Amitbhali Momim, that were 

both involved in the underlying motor vehicle accident and the amount of [Morris’s 

damages resulting from the underlying motor vehicle accident.” Liberty Mutual 

contends that the deposition is sought regarding Cagle’s role as a claims adjuster and 

necessarily seeks discovery as to the abated extra-contractual claims.

Morris responded that she seeks to depose Cagle “as the person who had 

information regarding Defendant’s discovery responses, including [Morris’s] 

declaratory judgment claim.”
6

After conducting a hearing, the trial court denied Liberty Mutual’s motion to 

quash and directed it to produce Cagle for deposition within sixty days.

Morris then amended her petition in the underlying case to remove all claims 

against Liberty Mutual except her claim for declaratory judgment. A determination 

has not been made as to Momim’s negligence and/or liability for the underlying 

accident, the existence and amount of Morris’s damages, or Momim’s status as an 

underinsured motorist. 

Standard of Review

Discovery matters are generally within the trial court’s sound discretion, but 

“mandamus will issue to correct a discovery order if the order constitutes a clear 

abuse of discretion and there is no adequate remedy by appeal.” In re Colonial 

Pipeline Co., 968 S.W.3d 938, 941 (Tex. 1998); see Walker v. Packer, 827 S.W.2d 

833, 839 (Tex. 1992). A clear abuse of discretion occurs when the trial court’s 

decision is so arbitrary and unreasonable that it amounts to clear error. See Walker, 

827 S.W.2d at 839 (quoting Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 

917 (Tex. 1985)). Because a trial court has no discretion in determining what the law 

is, the trial court abuses its discretion if it clearly fails to analyze or apply the law 

correctly. See id. at 840. “To satisfy the clear abuse of discretion standard, the relator 

must show ‘that the trial court could reasonably have reached only one decision.’” 

Liberty Nat’l Fire Ins. Co. v. Akin, 927 S.W.2d 627, 630 (Tex. 1996) (quoting 
7

Walker, 827 S.W.2d at 840). “In determining whether appeal is an adequate remedy, 

appellate courts consider whether the benefits outweigh the detriments of mandamus 

review.” In re BP Prods. N. Am., Inc., 244 S.W.3d 840, 845 (Tex. 2008).

Discussion

In seeking mandamus relief, Liberty Mutual contends that (1) discovery 

beyond the issues of liability and damages regarding the underlying accident is 

irrelevant because it is not liable until these issues have been determined; and 

(2) Cagle’s assistance with answering interrogatories regarding Morris’s policy is an 

insufficient basis to allow the deposition at this stage of the case. Liberty Mutual 

further asserts that it lacks an adequate remedy by appeal because it is being 

compelled to bear the burden of providing a deposition not relevant to any current 

claim. In response to the petition, Morris argues that (1) she is entitled to depose

Cagle because “[t]he deposition of a witness who provides discovery responses is 

relevant” and (2) Liberty has an adequate remedy by appeal.

A. Scope of Discovery

A trial court must make an effort to impose reasonable limits on discovery. In 

re Am. Optical, 988 S.W.2d 711, 713 (Tex. 1998). Although the scope of discovery 

is broad, requests must show a reasonable expectation of obtaining information that 

will aid the dispute’s resolution. In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003)

(citing Am. Optical, 988 S.W.2d at 713). Thus, discovery requests—including 
8

depositions—must be reasonably tailored to include only matters relevant to the 

case. Id. Information is relevant if it tends to make the existence of any fact that is 

of consequence to the determination of the action or defense more or less probable 

than it would be without such information. See TEX. R. EVID. 401.

Because Morris dismissed her breach of contract claim and her extracontractual claims have been severed and abated, Morris’s only pending claim in the 

underlying case is her request for a declaratory judgment regarding Liberty Mutual’s 

obligation to pay uninsured motorist benefits under the policy. For the reasons 

discussed below, we conclude that the trial court erred in denying Liberty Mutual’s 

motion to quash because the information sought through Cagle’s deposition is 

neither relevant to Morris’s pending claims nor reasonably calculated to lead to the 

discovery of admissible evidence. See TEX. R. CIV. P. 192.3(a); TEX. R. EVID. 401.

1. The pending claims are limited to third party liability for the accident.

The scope of relevant discovery in uninsured motorist cases differs from other 

insurance disputes because, unlike most first-party cases in which the terms of the 

policy alone dictate the outcome, uninsured motorist coverage hinges on the liability 

of the alleged uninsured, at-fault third-party motorist, under applicable tort law. See 

Brainard, 216 S.W.3d at 818 (citing Henson v. S. Farm Bur. Cas. Ins. Co., 17 

S.W.3d 652, 654 (Tex. 2000)). Consequently, “the insurer’s contractual obligation 

to pay benefits does not arise until liability and damages are determined.” Id.; see 
9

also In re United Fire Lloyds, 327 S.W.3d 250, 255 (Tex. App.—San Antonio 2010, 

orig. proceeding)

To recover benefits under an uninsured motorist policy, a policy beneficiary 

must show (1) that the insured has underinsured motorist coverage, (2) that the 

underinsured motorist negligently caused the accident that resulted in the covered 

damages, (3) the amount of the insured’s damages, and (4) that the underinsured 

motorist’s insurance coverage is deficient. See Brainard 216 S.W.3d 809 at 818; 

State Farm v. Nickerson, 216 S.W.3d 823, 824 (Tex. 2006); Norris, 216 S.W.3d at 

822-23; Henson, 17 S.W.3d at 654; In re Progressive County Mut. Ins. Co., 439 

S.W.3d 422, 426-27 (Tex. App.—Houston [1st Dist.] 2014, no pet.); In re United 

Fire Lloyds, 327 S.W.3d at 255. Accordingly, “a claim for [uninsured motorist] 

benefits is not presented until the trial court signs a judgment” resolving these issues. 

Brainard, 216 S.W.3d at 818. 

Liberty Mutual stipulated in its pleadings and responses that (1) Morris was 

insured for uninsured motorist benefits under its policy; and (2) the underlying 

accident was a covered occurrence under the policy’s provisions. This stipulation 

narrows the relevant issues in the present case to those of a “typical car wreck”

case—namely, (1) Momim’s liability for the underlying car accident, (2) Momim’s 

uninsured/underinsured status, and (3) the existence and amount of Morris’s 

damages. See In re Progressive, 439 S.W.3d at 427. 
10

In determining whether Morris is entitled to discovery on her declaratory 

judgment claim prior to a judgment on liability and damages regarding the 

underlying accident, we are guided by case law requiring the severance and 

abatement of extra-contractual claims. See, e.g., In re Progressive, 439 S.W.3d at 

426-27. An insured must first establish that the insurer is liable on the contract before 

the insured can recover on extra-contractual causes of action against an insurer for 

failing to pay or settle an underinsured motorist insurance claim. Thus, extracontractual claims must be severed and abated until the underinsured motorist breach 

of contract claim is determined. See In re Allstate Cnty Mut. Ins. Co., 447 S.W.3d 

497; In re Progressive, 439 S.W.3d 422. The rationale for requiring abatement and 

severance of these types of claims is that they may be rendered moot by a 

determination of underlying liability. See U.S. Fire Ins. Co. v. Millard, 847 S.W.2d 

668, 673 (Tex. App.—Houston [1st Dist.] 1993, orig. proceeding) (“Abatement of 

the bad faith claims must necessarily accompany severance of those claims from the 

contract claim. Without abatement, the parties will be put to the effort and expense 

of conducting discovery and preparing for trial of claims that may be disposed of in 

a previous trial.”); In re United Fire Lloyds, 327 S.W.3d at 265 (holding that 

abatement of the insured’s extra-contractual claims was required to “do justice, 

avoid prejudice, and further convenience.”). 
11

We apply similar reasoning to the case at hand. Because Liberty Mutual’s

contractual obligations do not ripen until after Morris has obtained a judgment

against Momim on liability, damages, and coverage, the requested discovery is 

irrelevant to any current claims, which are the building blocks for an eventual 

determination of the parties’ contractual rights. See In re Progressive, 439 S.W.3d 

at 426-27; In re United Fire Lloyds, 327 S.W.3d at 256. An insurer is not required 

to incur litigation expenses on these issues because they may be rendered moot by 

the trial of the underlying accident. Id.; see also In re State Farm Mut. Auto. Ins. 

Co., 395 S.W.3d 229, 237 (Tex. App.—El Paso 2012, orig. proceeding); In re Am. 

Nat. Cnty. Mut. Ins. Co., 384 S.W.3d 429, 437 (Tex. App.—Austin 2012, no pet.). 

Our decision in In re Progressive is instructive. Progressive concerned, 

among other things, a trial court’s refusal to abate discovery in an uninsured motorist 

case. 439 S.W.3d at 428. Our court recognized that, “to prevail on her extracontractual claims . . . [the plaintiff] must demonstrate that [the insurer] was 

contractually obligated to pay her uninsured motorist claim.” Id. at 427. Because the 

existence of coverage for the accident was not in dispute, this “will essentially 

involve the issues in a typical car wreck: the comparative negligence of [the plaintiff] 

and the other driver and [the plaintiff’s] damages.” Id. We reasoned that requiring 

the parties to engage in discovery on matters unrelated to these issues—including 

the insurer’s uninsured motorist claims-handling history and its internal policies and 
12

procedures concerning the investigation of uninsured motorist claims—before the 

underlying liability was determined would be “manifestly unjust.” Id. On this basis, 

we held that the trial court erred in refusing to abate discovery as to issues beyond 

the underlying car accident. Id. at 427-28.

As in Progressive, Liberty Mutual has conceded the existence of coverage—

namely, that Morris was an insured under the policy and that the underlying accident 

was a covered occurrence under the policy’s UIM provisions. Accordingly, the 

remaining issues are those relating to the underlying accident: (1) Momim’s liability 

for the car accident, (2) Momim’s uninsured/underinsured status, and (3) the 

existence and amount of Morris’s damages. It is undisputed that there has been no 

judgment or other judicial determination as to any of these issues. Absent such 

judgment, Liberty Mutual owes no contractual or extra-contractual UIM duties. 

The deposition of Cagle is irrelevant to the issues currently pending in the 

case. Cagle’s only connection to the underlying car accident and resulting damages 

is that she is a claims adjuster for the insurance company that underwrites Morris’s 

policy and signed the company’s discovery responses. Cagle’s testimony would not 

have “any tendency to make a fact more or less probable” as to any of the relevant 

issue in the current case. TEX. R. EVID. 401. Although Cagle’s testimony as to 

Liberty Mutual’s claim-handling activities or its general policies and procedures is 
13

relevant to Morris’s extra-contractual claims, those claims have been properly 

severed and abated. See In re Progressive, 439 S.W.3d at 427.

In sum, Morris requests a deposition of a claims adjuster when she does not 

have a justiciable cause of action against Liberty Mutual for uninsured motorist 

benefits. The information Morris seeks to discover may become relevant, but not 

unless Morris obtains a judgment establishing (1) Momim’s liability for the 

underlying car accident, (2) Momim’s uninsured/underinsured status, and (3) the 

existence and amount of Morris’s damages.

2. Morris has not otherwise demonstrated a basis for the discovery.

Morris further argues that she is entitled to depose Cagle because Cagle 

“assisted or provided information in answering [Liberty Mutual’s] interrogatories” 

and verified its interrogatory answers. Morris’s circular argument that the mere act 

of objecting to requests that are beyond the scope of permissible discovery can itself 

serve as the basis for obtaining discovery on the same irrelevant issues would, if 

permitted, render discovery requirements meaningless.

Liberty Mutual objected to the majority of the questions propounded in the 

interrogatories as outside the scope of permissible discovery. The interrogatories 

primarily sought information regarding Morris’s extra-contractual claims, which 

were severed and abated by the trial court. Liberty Mutual’s objections that 

discovery on the severed and abated claims was improper are well-founded. See In 
14

re Farmers Tex. Cnty. Mut. Ins. Co., 509 S.W.3d 463, 467 (Tex. App.—Austin 2015, 

orig. proceeding) (“The record, however, includes discovery requests propounded 

by [plaintiff] that are broader than his breach of contract claim, his factual allegations 

in his pleadings, and a copy of the section of his insurance policy addressing the 

relevant UIM coverage . . . .”). Nothing in Liberty Mutual’s interrogatory answers 

suggests that Cagle has any knowledge relevant to the issues of Momim’s liability, 

damages, or underinsured status. Discovery propounded on irrelevant issues does 

not become relevant by a party correctly objecting to its relevance and providing the 

required designations.

Apart from its objections, Liberty Mutual provided answers in response to 

interrogatories pertaining to Morris’s medical records. These answers, however, 

merely refer to Morris’s medical records. For instance, Interrogatory No. 4 requested 

that Liberty Mutual “identify each medical bill you received for Latrisha Morris, 

including the date received, the amount submitted, the name of the provider, the 

amount paid for each bill and the reason for denial of Uninsured benefits for each 

bill since May 5, 2014.” Liberty Mutual objected that the request was in part 

irrelevant, but responded as follows: “Subject to and without waiving the foregoing 

objections, see copies of all medical bills of Plaintiff received by Defendant [with 

corresponding label numbers] . . .”
15

Morris’s medical records are relevant to the amount of damages she claimed 

as a result of the accident, but Cagle’s verification of the interrogatories is an 

insufficient basis to allow the deposition. The only relevant testimony Cagle could 

provide would consist of confirming that Liberty Mutual had produced the medical 

records that it had been provided. Morris has independent and superior access to her 

own records, and deposing Cagle on their contents would be unreasonable and 

unduly burdensome. See TEX. R. CIV. P. 192.4(a) (providing that discovery should 

be limited when “the discovery sought is unreasonably cumulative or duplicative, or 

is obtainable from some other source that is more convenient, less burdensome, or 

less expensive”); see also In re Arras, 24 S.W.3d 862, 864 (Tex. App.—El Paso 

2000, no pet.) (granting mandamus relief challenging order requiring claims 

representative to submit to deposition because plaintiffs already received “the exact 

information” from car accident defendants and thus “the information sought by 

Plaintiffs is clearly obtainable from some other source that is more convenient, less 

burdensome, or less expensive” and “the information sought via deposition and 

subpoena duces tecum is unreasonably cumulative and/or duplicative.”).

Finally, the discovery that Morris seeks may become relevant once liability 

for the car accident is determined. Morris relies on the decisions in In re Luna and 

In re Garcia to contend that the verifying agent who answers discovery requests is 

always subject to deposition. See In re Luna, No. 13-16-00467-CV, 2016 WL 
16

6576879, at *1 (Tex. App.—Corpus Christi, Nov. 7, 2016, orig. proceeding); In re 

Garcia, No. 04-07-00173-CV, 2007 WL 1481897, at *1 (Tex. App.—San Antonio

May 23, 2007, orig. proceeding). In both cases, the courts of appeals granted 

mandamus relief to allow the deposition of an insurer’s representative in actions for 

uninsured motorist coverage. But these cases are distinguishable because both cases 

arose after liability of the third party driver had been determined and the coverage 

dispute had ripened. In Luna, the plaintiff had obtained a default judgment against 

the other motorist in her personal injury suit. See 2016 WL 6576879, at *1. In 

Garcia, the plaintiff had “collected from the other motorist's liability insurer at the 

full policy limits.” 2007 WL 1481897, at *1. But the insurer disputed the plaintiff’s 

actual damages. See id. at *2. Unlike Garcia, there is no indication at this stage of 

Morris’s case that Cagle’s deposition is relevant to any asserted defense, as questions 

about uninsured motorist coverage await determination of primary liability and 

damages.

B. Adequate Remedy by Appeal

Finally, to be entitled to mandamus relief, Liberty Mutual also must 

demonstrate that it lacks an adequate remedy by appeal. Because we conclude that 

the order compels discovery irrelevant to the underlying case, Liberty Mutual 

necessarily lacks an adequate remedy by appeal. See In re CSX Corp., 124 S.W.3d 

at 153. (“We have said that where a discovery order compels production of ‘patently 
17

irrelevant or duplicative documents’ . . . there is no adequate remedy by appeal 

because the order ‘imposes a burden on the producing party far out of proportion to 

any benefit that may obtain to the requesting party.’”) (quoting Walker, 827 S.W.2d 

at 843). Insurers have a substantial right not to undergo the expense of conducting 

discovery on issues that ultimately may be unnecessary because of the result in the 

underlying tort case. See In re Old Am. Cnty. Mut. Ins. Co., No. 13–11–00412–CV, 

2012 WL 506570, at *5 (Tex. App.—Corpus Christi Feb. 16, 2012, orig. 

proceeding); see also United Fire Lloyds, 327 S.W.3d at 257. Insurers similarly have 

been held to lack an adequate remedy by appeal when required to respond to 

discovery for extra-contractual claims that may be rendered moot by the 

determination of the breach of contract claims. See Allstate, 447 S.W. at 504; In re 

Progressive, 439 S.W.3d at 427–28; see also In re State Farm, 395 S.W.3d at 239. 

If mandamus is not granted, Liberty Mutual would be required to prepare for and 

respond to discovery concerning claims that similarly lack justiciability. See Millard, 

847 S.W.2d at 675; In re Trinity Universal Ins. Co., 64 S.W.3d 463, 468 (Tex. 

App.—Amarillo 2001, orig. proceeding).

Conclusion

For the forgoing reasons, we conditionally grant the petition for writ of 

mandamus and direct the trial court to (1) vacate its order compelling the deposition 

and (2) grant Liberty Mutual’s motion to quash. We are confident that the trial court 
18

will promptly comply, and our writ will issue only if it does not. We dismiss any 

pending motions as moot.

Jane Bland

Justice

Panel consists of Chief Justice Radack and Justices Keyes and Bland.