in Re Metropolitan Life Insurance Company

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-98-00628-CV In re Metropolitan Life Insurance Company ORIGINAL PROCEEDING FROM TRAVIS COUNTY In this original proceeding, relator, Metropolitan Life Insurance Company ("Met Life") seeks a writ of mandamus directing the district court to vacate its November 13, 1998 order granting plaintiffs and real-parties-in-interest Martha and Randy Teutsch's motion to compel discovery. In the district court, the Teutsches complain that during the sale of life insurance to them, MetLife and its agent promised that the Teutsches could pay premiums for a set period, following which the policies would have sufficient accumulated value so that the Teutsches would not need to pay additional premiums. These types of policies are referred to as "vanishing premium" or "accelerated payment" policies. The Teutsches allege that these representations were false, and that they must pay premiums in a greater amount and beyond the period represented by MetLife's agent in order to keep the policies in force. The Teutsches seek to have the district court certify their case as a class action, thus allowing it to proceed on behalf of all Texas residents who purchased life insurance policies from MetLife and were "falsely told that their premiums would 'vanish' or their policies would otherwise be paid in full by a [certain date]." The case is before us as a putative class action, as the district court has not conducted a hearing to determine whether a class should be certified. In this posture, the Teutsches requested MetLife, inter alia, to "[i]dentify every Texas resident who has complained to you or the Texas Department of Insurance, since 1/1/91, about misrepresentations that premiums for a life insurance policy would be paid for after a certain number of years, or similar allegations." When MetLife failed to comply with this request, the Teutsches moved to compel MetLife to provide the information. Following a hearing, the district court ordered MetLife to fully and completely answer the interrogatory. It is this order that MetLife seeks to vacate. It is significant that the Teutsches sought, and the district ordered disclosed, only the identities of those MetLife policyholders who had lodged complaints similar to those of the Teutsches. Mandamus may issue to compel the performance of a ministerial act or duty or to correct a clear abuse of discretion committed by the trial court. See Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). We may not substitute our judgment for that of the trial court with respect to matters within the discretion of the trial court. See id. Discovery matters generally fall within the trial court's discretion. See Flores v. Fourth Court of Appeals, 777 S.W.2d 38, 41-42 (Tex. 1989); Ginsberg v. Fifth Court of Appeals, 686 S.W.2d 105, 108 (Tex. 1985). The Teutsches assert that the information sought is relevant in that it will tend to reflect the elements of numerosity, commonality and typicality required for certification of the putative class. See Tex. R. Civ. P. 42(a). They also contend that the evidence is relevant to prove their individual claims, in that it could tend to prove that MetLife was engaged in an unfair or deceptive course of dealing in the business of insurance. Relevant evidence is that evidence "having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex. R. Evid 401. Before a class is certified, a case is treated as though it is brought by the plaintiff individually or on its own behalf. America Online, Inc. v. Williams, 958 S.W.2d 268, 273 (Tex. App.--Houston [14th Dist.] 1997, no writ). The Teutsches contend, and MetLife concedes, that the information sought is relevant to the Teutsches individual claims. MetLife, however, argues that the identity of its complaining policyholders should not be discoverable because those policyholders have an expectation of privacy, which must be weighed against a general right to discovery, and the district court failed to consider any rights of the policyholders. MetLife directs us to Alpha Life Insurance Co. v. Gayle, 796 S.W.2d 834 (Tex. App.--Houston [14th Dist.] 1990, orig. proceeding) to support its position. Alpha Life, however, concerned medical records held to be "within a zone of privacy protected by the United States Constitution." See id. at 836. Further, the information sought was subject to the physician/patient privilege. See id. In the record before us, no such "zone of privacy" or privilege is apparent. Based on a careful consideration of the record, we cannot say that the district court abused his discretion in ordering the disclosure of the identities of other MetLife policyholders who made similar complaints to those of the Teutsches. Accordingly, we deny MetLife's petition for mandamus. Because we deny MetLife's petition for mandamus, the stay previously issued by the Court on November 20, 1998, is lifted. Lee Yeakel, Justice Before Justices Kidd, B. A. Smith and Yeakel Mandamus Denied Filed: March 11, 1999 Do Not Publish olicies would otherwise be paid in full by a [certain date]." The case is before us as a putative class action, as the district court has not conducted a hearing to determine whether a class should be certified. In this posture, the Teutsches requested MetLife, inter alia, to "[i]dentify every Texas resident who has complained to you or the Texas Department of Insurance, since 1/1/91, about misrepresentations that premiums for a life insurance policy would be paid for after a certain number of years, or similar allegations." When MetLife failed to comply with this request, the Teutsches moved to compel MetLife to provide the information. Following a hearing, the district court ordered MetLife to fully and completely answer the interrogatory. It is this order that MetLife seeks to vacate. It is significant that the Teutsches sought, and the district ordered disclosed, only the identities of those MetLife policyholders who had lodged complaints similar to those of the Teutsches. Mandamus may issue to compel the performance of a ministerial act or duty or to correct a clear abuse of discretion committed by the trial court. See Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). We may not substitute our judgment for that of the trial court with respect to matters within the discretion of the trial court. See id. Discovery matters generally fall within the trial court's discretion. See Flores v. Fourth Court of Appeals, 777 S.W.2d 38, 41-42 (Tex. 1989); Ginsberg v. Fifth Court of Appeals, 686 S.W.2d 105, 108 (Tex. 1985). The Teutsches assert that the information sought is relevant in that it will tend to reflect the elements of numerosity, commonality and typicality required for certification of the putative class. See Tex. R. Civ. P. 42(a). They also contend that the evidence is relevant to prove their individual claims, in that it could tend to prove that MetLife was engaged in an unfair or deceptive course of dealing in the business of insurance. Relevant evidence is that evidence "having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex. R. Evid 401. Before a class is certified, a case is treated as though it is brought by the plaintiff individually or on its own behalf. America Online, Inc. v. Williams, 958 S.W.2d 268, 273 (Tex. App.--Houston [14th Dist.] 1997, no writ). The Teutsches contend, and MetLife concedes, that the informati