APPEALS COURT DENIES INSURER’S PETITION FOR WRIT OF MANDAMUS SEEKING TO SET ASIDE TRIAL COURT’S ORDER STRIKING ITS CONTROVERTING AFFIDAVITS

Recently, a Houston court of appeals joined a growing list of appellate courts refusing to order trial courts to set aside orders striking defendants’ controverting affidavits in personal injury lawsuits. In re Liberty Co. Mutual Ins. Co., No. 14-20-00579-CV, 2020 WL 6278398 (Tex. App.—Houston [14th Dist.], Oct. 27, 2020) involved a petition for writ of mandamus filed by Liberty County Mutual Insurance Company (“Liberty”) seeking to compel the trial court judge to set aside his order striking Liberty’s controverting affidavits.

Liberty was the uninsured/underinsured (“UM/UIM”) carrier for the insured who was involved in a three-car motor vehicle accident and settled with both other drivers involved. When Liberty refused to pay the claimant UIM benefits, the claimant sued Liberty for breach of contract and violations of the Texas Insurance Code.

After filing suit, the claimant filed notice of billing affidavits pursuant to section 18.001 of the Texas Civil Practice and Remedies Code, which provides that a party who files an affidavit stating that the amount he was charged for a service was reasonable and the service was necessary can use the affidavit as evidence to support his claims of reasonableness and necessity of a service at trial, unless a controverting affidavit is filed.

In response, Liberty filed twelve controverting affidavits (a/k/a “counter-affidavits”). The claimant then moved to strike the controverting affidavits, and the trial court granted his motion. As a result, Liberty filed a petition for writ of mandamus with the appeals court, arguing that the trial court abused its discretion by striking its controverting affidavits and that it did not have an adequate remedy on appeal because it would lose the substantial right of presenting evidence at trial to contradict the claimant’s affidavits.

The Court noted that only one appellate court has held that a party seeking to compel a trial court to set aside an order striking controverting affidavits did not have an adequate remedy on appeal. Instead, the Court pointed to numerous courts of appeals who have since declined to follow that ruling and instead reached the opposite conclusion: that an adequate remedy on appeal does exist.

In support of its conclusion, the Court stressed that nothing in the rules of civil or appellate procedure precluded an appellate court from curing a trial court’s erroneous exclusion of controverting affidavits because striking a controverting affidavit does not impair the presentation of a viable claim or defense. That is, because the section 18.001 affidavits are explicitly not considered conclusive evidence of reasonableness and necessity of the charges or causation of the corresponding injuries, a defendant can still present evidence that the injuries for which a claimant was treated were not caused by the accident. Moreover, a defendant can contest the affidavits in opening and closing statements, cross-examine the claimant about his injuries and prior medical conditions, and may introduce the corresponding medical records into evidence. Finally, if the ruling excluding the controverting affidavit is made part of the trial record, an appellate court can correct any error and reverse the trial court’s ruling. Accordingly, the Court denied Liberty’s petition for writ of mandamus.