The Corpus Christi Court of Appeals has granted a group of insurers’ petition for writ of mandamus directing a Hidalgo County trial court to vacate its order allowing 21 insurers to take a presuit deposition of the insurers’ corporate representative.
In re Allstate Vehicle Property and Insurance Company, Allstate Texas Lloyds, Allstate Fire and Casualty Insurance Company, and James Rudish (No. 13-26-00576-CV; August 26, 2026) arose from an attempt by 21 Allstate insureds to obtain a court order allowing them to take a presuit deposition of an Allstate corporate representative under TRCP 202. The insureds allege that they were sold defective solar panels. They contended that the installation of those panels on their roofs constituted vandalism and filed claims under their homeowners policies. Allstate unsurprisingly denied them. Subsequently, the insurers petitioned a Hidalgo County court-at-law for a Rule 202 order on the basis that Rudish, Allstate’s corporate representative, “had personal knowledge of Allstate’s internal institutional decisions regarding whether solar-vandalism claims such as these should be afforded coverage.” In their petition, they alleged that the deposition was for use in an anticipate suit and to investigate a potential claim. It further included a subpoena duces tecum requesting production of several categories of documents. After a hearing, the trial court granted the motion. Allstate sought mandamus relief.
In an opinion by Justice Fonseca, the court of appeals conditionally granted relief. Rule 202 requires the trial court to order a presuit deposition “if, but only if, it finds either that ‘allowing the petitioner to take the requested deposition may prevent a failure or delay of justice in an anticipated suit’ or that ‘the likely benefit of allowing the petitioner to take the requested deposition to investigate a potential claim outweighs the burden or expense of the procedure.’” Relators asserted that the trial court abused its discretion in granting the petition because Real Parties in Interest failed to present any evidence supporting the trial court’s finding. Observing that neither a sworn or verified pleading nor arguments of counsel constitute evidence, and that the required findings may not be implied, the court concluded that the Real Parties proved their case. In fact, it appears that the trial court had no idea what the law was because its order stated that it relied on the pleading, the exhibits (which were not admitted into evidence and couldn’t be considered as such), and argument of counsel. Consequently, the trial court plainly and explicitly abused its discretion.
Relators next argued that mandamus should issue because they had no adequately remedy by appeal. The court agreed. First, the trial court’s Rule 202 order was not reviewable by ordinary appeal. Second, the depositions could not be “untaken.” The court lifted its stay and conditionally granted the petition ordering the trial court to vacate its order.
