Lunsmann v. Spector

761 S.W.2d 112, 1988 Tex. App. LEXIS 3136, 1988 WL 135370
CourtCourt of Appeals of Texas
DecidedNovember 9, 1988
DocketNo. 04-88-00497-CV
StatusPublished
Cited by2 cases

This text of 761 S.W.2d 112 (Lunsmann v. Spector) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lunsmann v. Spector, 761 S.W.2d 112, 1988 Tex. App. LEXIS 3136, 1988 WL 135370 (Tex. Ct. App. 1988).

Opinion

OPINION

REEVES, Justice.

This is an original mandamus proceeding arising out of a denial of certain pre-trial discovery.

The suit arises out of the denial of coverage under a health insurance policy insuring Dian F. Lunsmann on the basis of an undisclosed material pre-existing medical condition. The Lunsmanns (relators) brought suit against Metropolitan Life Insurance Company and Eric Colon alleging breach of contract, violations of the Texas Deceptive Trade Practices-Consumer Protection Act and the Texas Insurance Code, breach of the duty of good faith and fair dealing, common law negligence, and re[113]*113questing a declaration of their rights under the Declaratory Judgment Act. Relators propounded interrogatories and requests for production to Metropolitan. Metropolitan sought and received protection against certain of the interrogatories and the requests for production.

Relators seek this Court to order respondent, the Honorable Rose Spector, Judge of the 224th Judicial District of Be-xar County, to rescind her order limiting and denying discovery and to enter an order directing Metropolitan to answer discovery. This Court has jurisdiction to issue the writ of mandamus in a case in which the trial court has clearly abused its discretion in a discovery proceeding. General Motors Corp. v. Lawrence, 651 S.W.2d 732, 733 (Tex.1983); Allen v. Humphreys, 559 S.W.2d 798 801 (Tex.1977); Barker v. Dunham, 551 S.W.2d 41, 42 (Tex.1977).

TEX.R.CIV.P. 166b provides for the scope of discovery. Subsection (2)(a) authorizes discovery of any matter relevant to the subject matter in the pending suit which relates to the claim or defense of the party seeking discovery or of any other party as long as it appears reasonably calculated to lead to the discovery of admissible evidence. Subsection (2)(d) of the rule authorizes a party to obtain discovery of the identity of any potential party or person with knowledge of relevant facts. “A person has knowledge of relevant facts when he or she has or may have knowledge of any discoverable matter.” TEX.R.CIV.P. 166b(2)(d). The information sought need not necessarily be admissible at trial. Discovery is limited only by the opposing party’s legitimate interest to avoid occurrences such as overly broad requests, harassment, or disclosure of privileged information. Jampole v. Touchy, 673 S.W.2d 569, 573 (Tex.1984). The trial court may protect a party from unduly burdensome or expensive discovery or from harassment or annoyance. McAllen State Bank v. Salinas, 738 S.W.2d 381, 384 (Tex.App.—Corpus Christi 1987, no writ).

The burden of proof is on the party alleging the particular discovery is unduly burdensome, costly, or harassing to produce. Independent Insulating Glass/Southwest, Inc. v. Street, 722 S.W.2d 798, 802 (Tex.App.—Fort Worth 1987, writ dism’d).

The trial court must look to whether the requested discovery is reasonably calculated to lead to discovery of admissible evidence. Id. at 803; TEX.R.CIV.P. 166b(2)(d). The following balancing test should be used to determine the potential relevance of discovery requests: “the probative value of the information sought and the burden on [the requesting party] if discovery is denied, is weighed against the burden placed upon relators if the discovery is granted.” Independent Insulating Glass/Southwest, Inc. v. Street, 722 S.W.2d at 803.

Discovery is favored, and the rules concerning discovery must be liberally construed. State v. Clark, 695 S.W.2d 673, 675 (Tex.App.—Austin 1985, no writ). The trial court has a broad grant of discretion in the area of discovery, and we can set aside the order only when the trial court has committed a clear abuse of discretion. Ginsberg v. Fifth Court of Appeals, 686 S.W.2d 105, 108 (Tex.1985); Jampole v. Touchy, 673 S.W.2d at 573.

Relators complain that the trial court placed improper limits on their Interrogatory No. 2. The interrogatory asked:

Please identify by name, complete address, and telephone number, each and every person known to you, your attorney, agents, employees, or investigators who has or claims to have any knowledge of any fact or record relating or pertaining to this cause of action or any factual disputes which may arise in connection with these proceedings.

Metropolitan objected that the question was vague, overbroad and burdensome. Metropolitan provided the names of individuals with knowledge of facts or records pertaining to relators’ application for insurance and claims to benefits. In its Discovery Order Number 1, the trial court sustained Metropolitan’s objection in part and ordered that Metropolitan provide the names of individuals who have knowledge [114]*114of relevant facts about the relators’ insurance application or the denial of their claim.

Relators also urge that the trial court’s limitation on the interrogatory will preclude them from obtaining relevant information concerning their allegation that Metropolitan engages in a course of conduct in denying these types of claims. We do not agree.

Relators’ interrogatory did not inquire into a wrongful course of action. It asked for any information associated with “this cause of action.” This is clearly too broad a question. It inquires into the identity of anyone with knowledge of any factual disputes which later may arise between the parties about the proceedings. TEX.R.CIV.P. 166b(2)(d) permits inquiry of relevant facts. However, relators do not restrict their interrogatory to relevant facts, but ask for each and every person who has or claims to have knowledge of any potential future factual disputes. We do not see that the trial court clearly abused its discretion in finding the interrogatory to be overbroad.

In their request for production number 7, relators asked Metropolitan to produce:

Copies of each claimant’s last amended pleading in any lawsuit involving the Defendant insurance company in the last three years where the insurance company was defending, in whole or in part, its failure to pay medical expenses on the basis of an alleged preexisting, material, undisclosed medical condition or treatment.

Metropolitan objected that the request was not relevant, overbroad, and overburden-some. Metropolitan offered the affidavit of Janine Wright, its legal department’s senior paralegal. She stated that between January 1, 1986, and August 3, 1988, Metropolitan was involved in over 110 lawsuits involving the potential insureds’ material misrepresentations in applications for insurance coverage and that the files on these suits were located in offices throughout the United States. The trial court sustained Metropolitan’s objection.

Relators rely on the case of Aztec Life Insurance Co. of Texas v. Dellana,

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Bluebook (online)
761 S.W.2d 112, 1988 Tex. App. LEXIS 3136, 1988 WL 135370, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lunsmann-v-spector-texapp-1988.