A Texas appellate court has stopped a driver from using a pre-suit discovery petition to investigate claims handling practices by two insurers and their claims representative, finding that the requested discovery was already available through existing litigation. The Ninth Court of Appeals in Beaumont issued a consolidated opinion on April 3, 2025, conditionally granting a writ of mandamus to Berkley Regional Insurance Company, Berkley National Insurance Company, and claims representative Brittany Cusack, and dismissing Cusack’s appeal for lack of jurisdiction.
The dispute stems from a June 22, 2022, multi-vehicle accident involving Walter Naymola Jr., who was driving a vehicle owned by National Tank & Equipment, LLC (NTE). NTE held a business auto liability policy issued by Berkley Regional Insurance Company (BRIC) and a commercial umbrella policy issued by Berkley National Insurance Company (BNIC).
According to a verified Rule 202 petition filed by Naymola, following the accident, representatives of Berkley—allegedly without Naymola’s knowledge and while he was hospitalized—obtained settlement releases from four individuals involved in the crash: Vanessa Edwards, Gabrielle Eastland, Dezman Parkerson, and Lynsey Parkerson. In January 2024, those same individuals filed suit against Naymola in Jefferson County, Texas (the “Edwards lawsuit”), asserting that the releases were invalid and did not bar their claims against him.
In response, Naymola filed a Rule 202 petition seeking pre-suit depositions of BRIC, BNIC, Cusack, and an unnamed individual (“John Doe”) to investigate potential tort claims arising from how the settlement agreements were obtained. He argued that if the releases are ultimately deemed unenforceable, he may have viable claims against Berkley and its representatives. The petition also requested extensive document production, including claim files, communications between the insurers and the Edwards plaintiffs, communications with legal counsel and third parties, drafts of the releases, and accident-related documentation.
Berkley opposed the petition, asserting that Naymola’s claims were hypothetical and unripe, that the trial court lacked subject matter jurisdiction, and that Rule 202 does not authorize documentary discovery. Berkley further argued that Naymola was already a party to the Edwards lawsuit and could obtain the requested information through normal discovery channels in that case. It also noted that it had already produced documents and a privilege log in the Edwards litigation.
Despite those objections, the trial court granted Naymola’s Rule 202 petition in August 2024. The court ordered Berkley and Cusack to produce witnesses for deposition and to make documents available in advance if they were essential for preparation or testimony.
On appeal, the Ninth Court of Appeals concluded that it lacked jurisdiction over Cusack’s appeal. Because the Rule 202 request was directed toward someone against whom litigation was contemplated, the appellate court ruled that the order was not final or immediately appealable.
However, the court conditionally granted mandamus relief. It found that the trial court abused its discretion by allowing Rule 202 depositions when the same discovery was accessible through the existing Edwards lawsuit. The court emphasized that Rule 202 is intended for limited, ancillary use and may not be used to bypass the discovery procedures available in ongoing litigation.
In its analysis, the appellate court also noted that Naymola had failed to plead or prove why he could not obtain the information in the Edwards case, nor had he explained why depositions were necessary before filing a new lawsuit. The court concluded that the burden and expense of pre-suit discovery were not justified under the rule and directed the trial court to vacate its order. The writ would issue only if the trial court failed to comply.
No specific policy language from the BRIC or BNIC insurance contracts was at issue in the case. The dispute focused on claims handling conduct—particularly the process of obtaining releases from third-party claimants without informing or involving the insured driver.
The case underscores the procedural boundaries of Rule 202 in Texas and highlights legal risks that can arise when insurers negotiate third-party settlements without transparency or coordination with all relevant insureds. While the decision does not foreclose potential claims against the insurers, it affirms that pre-suit discovery must be narrowly applied and may not serve as a substitute for formal litigation processes.
