For the eleventh time in the last year, the Texas Supreme Court has granted an emergency stay while it considers an insurer’s petition for writ of mandamus in an underinsured motorist case.
As in the other three cases, In re State Farm Mutual Automobile Insurance Company and Melissa Linette Burris (No. 24-0972; granted November 22, 2024) arose from a Dallas county court at law judge’s denial of State Farm’s motion to abate the insured’s extracontractual claims until after trial on the declaratory judgment action and grant of plaintiff’s motion to compel State Farm to produce a corporate representative for depositions. And, as likewise in the other cases, the Dallas Court of Appeals denied mandamus.
TCJL filed an amicus brief in one of these cases, in which we argued that once the Irwin case allowed the underinsured driver’s liability to be determined in a declaratory judgment action (for which plaintiff’s attorney’s fees are recoverable), then any extracontractual claims must be abated and severed for subsequent trial. What is going on here is that plaintiffs are seeking discovery of the insurer’s claims handling practices (often including deposition requests for corporate representatives and adjusters) before the insurer’s liability on the policy has even been established. They hope to use this discovery in the dec action to distract the jury from the real issue: whether the underinsured driver caused the plaintiff’s injuries. If they can shift the focus from the other driver to the big, bad insurance company, they enhance their chances for both a favorable verdict and recovery of their attorney’s fees.
In short, this is the workaround plaintiff’s attorneys devised in response to the Brainard decision. It’s clearly working in the Dallas Court of Appeals district. It appears, fortunately, that SCOTX is onto it and that we should soon get a ruling on this particular tactic.
