In Re Berkley Regional Insurance Company, Berkley National Insurance Company, and Brittany Cusack v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-24-00288-CV
NO. 09-24-00289-CV
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IN RE BERKLEY REGIONAL INSURANCE COMPANY, BERKLEY
NATIONAL INSURANCE COMPANY, AND BRITTANY CUSACK

and

BRITTANY CUSACK, Appellant

V.

WALTER NAYMOLA JR., Appellee

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Original Proceeding and On Appeal from the
136th District Court of Jefferson County, Texas
Trial Cause No. 24DCCV1247
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MEMORANDUM OPINION

Berkley Regional Insurance Company, Berkley National Insurance Company,

and Brittany Cusack (collectively “Berkley”) filed a petition for a writ of mandamus

to instruct the trial court to set aside a Rule 202 order granting Walter Naymola Jr.

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discovery of insurance claim files relating to a separate active lawsuit in which the

plaintiffs seek a declaration that their pre-suit releases of their claims against

Naymola are unenforceable. We stayed the depositions pending the resolution of the

original proceeding and obtained a response from the Real Party in Interest, Walter

Naymola Jr. Brittany Cusack filed a contemporaneous appeal from the same order.

See CMH Homes v. Perez, 340 S.W.3d 444, 448 (Tex. 2011). We issue a

consolidated opinion.

Background

In his Rule 202 petition, Naymola alleged that on June 22, 2022, he was

driving a vehicle owned by National Tank & Equipment, LLC (“NTE”) when he

was involved in a multi-vehicle accident. He alleged that Berkley Regional

Insurance Company (“BRIC”) provided business auto liability coverage to NTE, and

Berkley National Insurance Company (“BNIC”) issued a commercial umbrella

policy for NTE. According to Naymola, Berkley obtained from Vanessa Edwards,

Gabrielle Eastland, Dezman Parkerson, and Lynsey Parkerson, settlement releases

of claims against NTE and Naymola. Seeking to avoid the releases, in January 2024,

Edwards, Eastland, and the Parkersons filed a lawsuit in Jefferson County under

Cause Number 24DCV0131 (“Edwards lawsuit”). Naymola alleged that he “seeks

to investigate potential claims he may have against Berkley, Cusack, and/or Doe

related to their settlement practices in the unlikely instance that any of the Releases

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are deemed unenforceable.” Naymola requested permission to conduct pre-suit

discovery to investigate potential tort claims related to their handling of the claims

and releases at issue in the Edwards lawsuit. Naymola asked to depose BRIC, BNIC,

Cusack, and John Doe, regarding contents of all claim files pertaining to the claims

of Edwards plaintiffs, claims of privilege in respect to the claim files, and all

communications between the deposed parties and the Edwards plaintiffs. Naymola

asked the trial court to order Berkley to produce before the depositions all claim

files, including claims notes, written communications between the deponents

concerning the claims, communications between Berkley and any counsel retained

to provide advice concerning the releases on behalf of Naymola, written

communications between Berkley and any of the Edwards plaintiffs, written

communications between Berkley and any third party—including private

investigators, independent adjusters, and law enforcement—concerning the claims,

all drafts of the releases, and all photographs, crash reports, and other documentation

received or provided to others.

Berkley responded that Naymola’s claims were unripe, the trial court lacked

subject matter jurisdiction over Naymola’s hypothetical claims, that Rule 202 did

not allow documentary discovery, and Naymola failed to meet his burden under Rule

202. Berkley argued Naymola was already party to the Edwards lawsuit and could

readily obtain the discovery in that suit.

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In reply, Naymola argued he had already been harmed in that he has been sued

and forced to expend funds to defend himself in the Edwards lawsuit. According to

Naymola, he faced future injury to the extent a judgment might be entered against

him despite the execution of the releases because Berkley, through its employees or

agents rather than using the services of a licensed attorney, and without Naymola’s

knowledge, obtained settlement releases from several of the parties now suing

Naymola in the Edwards lawsuit. Naymola suggested Berkley would vehemently

resist discovery in the Edwards lawsuit. Naymola argued Rule 202 allows document

production because Rule 205 allows notice of deposition and service of a subpoena

compelling production of documents from a non-party.

At the hearing on the Rule 202 petition, Naymola’s attorney told the trial court

that NTE was the insured on the policies and Berkley representatives settled with

the plaintiffs while Naymola was hospitalized. The Edwards plaintiffs sued

Naymola, alleging that the releases are not valid or do not prevent the lawsuit against

Naymola. He explained that to adequately defend the Edwards lawsuit Naymola was

seeking the Berkley claim files and information in Berkley’s possession to determine

what Berkley did so that Naymola could defend the Edwards plaintiffs’ attempts to

void the releases. Counsel argued that if the releases are determined to be ineffective,

Naymola has an additional potential claim against Berkley, and that claim is ripe

because there is already a suit on file. Counsel added, “[G]ive the man his file so he

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can defend himself from the releases that they went and obtained using his name and

without his knowledge and without ever telling him.” He argued Naymola had been

damaged because “they will not produce those documents and have not produced

them in the 58th.” He argued Naymola was further damaged because Berkley

refused to pay his invoices. He added that they were seeking only non-privileged

information in the Rule 202 proceeding.

Berkley argued the Rule 202 petition relies on unripe claims that Naymola

alleged he might have in the unlikely instance any of the releases are deemed

unenforceable. Berkley argued in the Edwards lawsuit plaintiffs’ counsel served a

subpoena on Berkley, Berkley was cooperating in discovery, had made limited

production and produced a privilege log, and no motion to compel had been filed.

BNIC’s privilege log was admitted in evidence at the hearing.

On August 12, 2024, the trial court signed an order granting the Rule 202

petition. The trial court found the material allegations of the verified petition are

true, and that the likely benefit of allowing Naymola to take depositions to

investigate a potential claim outweighs the burden or expense of the procedure. The

trial court ordered that within 30 days Cusack be presented for her deposition, that

in advance of her deposition she be fully prepared to testify, and that she be required

to produce for inspection, if reviewed by the witness in preparation for her testimony

or if essential to providing complete and comprehensive deposition responses, all

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claim files and documents pertaining to claims by the Edwards plaintiffs arising out

of the June 22, 2022 vehicular accident involving Naymola. The trial court ordered

BRIC to produce, within 30 days, a representative on topics including contents of all

claim files pertaining to the Edwards plaintiffs, claims of privilege with the claim

files, and all communications between BRIC, BNIC, and Cusack and the Edwards

plaintiffs arising out of the accident. The trial court ordered the witness to be

prepared to testify about and, if reviewed by the witness in preparation for the

deposition, or if it would be essential to the witness providing complete and

comprehensive deposition responses, all claim files and related documents

pertaining to the June 22, 2022 accident with Naymola. The trial court ordered BNIC

to produce, within 30 days, a representative on topics including contents of all claim

files pertaining to the Edwards plaintiffs, claims of privilege with the claim files, all

communications between BRIC, BNIC, and Cusack and the Edwards plaintiffs

arising out of the accident. The trial court ordered the witness to be prepared to

testify about and, if reviewed by the witness in preparation for the deposition, or if

it would be essential to the witness providing complete and comprehensive

deposition responses, all claim files and related documents pertaining to the June 22,

2022 accident with Naymola.

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Appeal or Mandamus

Cusack argues the trial court’s order is appealable as to her because Naymola

has not stated a valid claim against her in his Rule 202 petition. Naymola argues he

identified a potential negligence cause of action against Cusack. Generally,

“[p]resuit deposition orders are appealable only if sought from someone against

whom suit is not anticipated.” In re Jorden, 249 S.W.3d 416, 419 (Tex. 2008) (orig.

proceeding). An order allowing presuit discovery incident and ancillary to a

contemplated lawsuit against the party to be deposed is not a final, appealable order.

IFS Sec. Grp., Inc. v. Am. Equity Ins. Co., 175 S.W.3d 560, 563 (Tex. App.—Dallas

2005, no pet.).

In his Rule 202 petition, Naymola asks the court to permit him to conduct pre-

suit discovery pursuant to Texas Rule of Civil Procedure 202 to investigate potential

claims he may have against Berkley and Cusack. Since the Rule 202 petition lacks

an allegation that Cusack is a person against whom suit is not anticipated, and the

stated purpose of the petition is to investigate potential claims against her, the order

is not final and appealable as to Cusack. See Jorden, 249 S.W.3d at 419.

Accordingly, we lack jurisdiction over Cusack’s appeal. Since the order allowing

Naymola to depose Cusack would occur before she will have an opportunity to

appeal, appeal would not be an adequate remedy if she can show that the trial court

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abused its discretion by granting the Rule 202 petition to depose Cusack. See id. at

419-20.

Standard of Review

We may issue a writ of mandamus to remedy a clear abuse of discretion by

the trial court when the relator lacks an adequate remedy by appeal. See In re

Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding);

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

“A trial court clearly abuses its discretion if it reaches a decision so arbitrary

and unreasonable as to amount to a clear and prejudicial error of law.” Walker, 827

S.W.2d at 839 (internal quotations omitted). A trial court also abuses its discretion

if it fails to correctly analyze or apply the law, because a trial court has no discretion

in determining what the law is or in applying the law to the facts. See Prudential,

148 S.W.3d at 135; Walker, 827 S.W.2d at 840.

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

of mandamus review against the detriments, considering whether extending

mandamus relief will preserve important substantive and procedural rights from

impairment or loss. In re Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex. 2008) (orig.

proceeding). This balancing test is necessarily a fact-specific inquiry that “resists

categorization[.]” Prudential, 148 S.W.3d at 136. “The most frequent use we have

made of mandamus relief involves cases in which the very act of proceeding to

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trial—regardless of the outcome—would defeat the substantive right involved.” In

re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 465 (Tex. 2008) (orig. proceeding).

“[P]arties lack an adequate appellate remedy from orders compelling discovery

beyond what the rules allow.” In re Millwork, 631 S.W.3d 706, 714 (Tex. 2021)

(orig. proceeding). “An improper order under Rule 202 may be set aside by

mandamus.” In re Wolfe, 341 S.W.3d 932, 933 (Tex. 2011) (orig. proceeding).

Rule 202

Rule 202 provides a proceeding that is ancillary to an anticipated suit. See

id. “‘To prevent an end-run around discovery limitations that would govern the

anticipated suit, Rule 202 restricts discovery in depositions to the same as if the

anticipated suit or potential claim had been filed.” Id. (internal quotation marks

omitted). “Courts must strictly limit and carefully supervise pre-suit discovery to

prevent abuse of the rule.” Id. Rule 202 “afford[s] potential litigants a way to conduct

discovery prior to the actual initiation of a lawsuit.” In re Overhead Garage Door,

LLC, No. 07-18-00015-CV, 2018 WL 934814, at *2 (Tex. App.—Amarillo Feb. 16,

2018, orig. proceeding) (mem op.). In Overhead Door, the appellate court

determined the Rule 202 proceeding was moot because the petitioner filed a lawsuit

against the anticipated defendant in another court. See id. at 3.

The availability of discovery through existing litigation must be a factor in

weighing the benefits and burdens of ordering depositions in a Rule 202 proceeding.

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In re Kaddatz, No. 02-23-00336-CV, 2023 WL 7210337, at *9 (Tex. App.—Fort

Worth Nov. 2, 2023, orig. proceeding) (mem. op.). “Rule 202 depositions are not

now and never have been intended for routine use. There are practical as well as due

process problems with demanding discovery from someone before telling them what

the issues are.” Jorden, 249 S.W.3d at 423.

Naymola failed to show that the likely benefit of taking a Rule 202 deposition

outweighs the burden and expense of doing so. See Tex. R. Civ. P. 202.4(a)(2). This

proceeding is ancillary to an existing suit. The discovery sought by Naymola through

a Rule 202 petition is relevant to the Edwards lawsuit and is immediately available

through third-party depositions and, if necessary, a protective order concerning any

documents that are privileged as to the Edwards plaintiffs but not as to Naymola.

The claims Naymola wishes to investigate, that is, Berkley’s and Cusack’s actions

in obtaining releases from the Edwards plaintiffs, are the very subject of the Edwards

lawsuit. Berkley and Cusack may not be defendants in the Edwards lawsuit because

the claims against them are not ripe, but discovery is available to Naymola in the

existing lawsuit. Naymola neither pleaded and proved why he cannot obtain the

discovery in the Edwards lawsuit, nor did he explain why the depositions must be

taken before he files his anticipated lawsuit against Relators.

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Conclusion

We conclude that we lack jurisdiction over Cusack’s appeal because her

deposition is incident to a contemplated lawsuit against her. Accordingly, we dismiss

Cusack’s appeal. We conclude the trial court abused its discretion by ordering pre-

suit depositions of Cusack and representatives of BRIC and BNIC because Naymola

can obtain their depositions in an existing lawsuit. We conclude Relators lack an

adequate remedy by appeal because the depositions will have already been taken

before they will have an opportunity to appeal. Accordingly, we lift our order

granting temporary relief and we conditionally grant mandamus relief. We are

confident that the trial court will vacate its order granting Naymola’s request to take

pre-suit depositions. The writ shall issue only if the trial court fails to act in

accordance with this opinion.

PETITION CONDITIONALLY GRANTED; APPEAL DISMISSED.

PER CURIAM

Submitted on December 31, 2024
Opinion Delivered April 3, 2025

Before Golemon, C.J., Wright and Chambers, JJ.

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