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Click here for the full text of this decision FACTS:The appellant, Latoi Adams, was involved in a car accident. Adams had a personal injury protection policy with Allstate County Mutual Insurance Co. for $2,500 per person per accident, which covered “reasonable expenses incurred for necessary medical services.” Allstate paid $710 under the policy for chiropractic treatment Adams received immediately after the accident. In May 2002, Adams had a single visit with another chiropractor, Dr. Funderburk, during which Funderburk’s assistant, Joe Kimble, performed a “sensory nerve conduction threshold test,” or “black box test,” on Adams. Adams submitted a bill to Allstate for the services provided by Kimble and Funderburk in the amount of $1,855, of which Allstate paid $175. Adams sued Allstate for claiming the insurer had violated former Texas Insurance Code Article 21.55. The parties stipulated that Allstate had paid Adams $885: $710 for all of the previous office visits and $175 for Funderburk’s office visit. In support of her contention that the medical services provided by Funderburk were reasonable and necessary as required under her policy, Adams filed the affidavit of Joe Kimble, along with Adams’s medical records and bills, in February 2003. In August 2003, private investigator Matt Dillon attempted to serve Kimble with a subpoena for a deposition on behalf of Allstate. Dillon visited Kimble’s residence and handed the subpoena to a man he believed to be Kimble, but who claimed to be Kimble’s brother, Julian. The man gave Dillon an alternate address at which to find Kimble. Dillon went to that address and waited two hours, but no one arrived. Suspicious, Dillon performed a background search on Kimble, and discovered, based on a photograph, that the man who claimed to be Julian was in fact Joe Kimble. Dillon returned to Kimble’s home, but the woman who answered the door denied knowing Kimble. Dillon left the subpoena on the floor inside the house. Kimble did not appear for his deposition. Allstate moved for contempt and to strike Kimble’s affidavit due to Kimble’s and Adams’ unwillingness to cooperate in the discovery process. Adams responded that Allstate’s proper remedy was to obtain and file a counter-affidavit. Allstate then moved to compel Adams to produce Kimble, or in the alternative, to strike Kimble’s affidavit. The trial court ordered Adams to provide Allstate with a last known address for Kimble. The person found at this address, however, claimed Kimble had not resided at that location for approximately six months. In March 2004, after an evidentiary hearing, the trial court granted Allstate’s motion to strike Kimble’s affidavit. At the close of the evidence, the first question submitted to the jury, labeled “Question No. 1,” asks “[w]hat sum of money, if any, do you find to be reasonable and necessary, and as a result of LATOI ADAMS’S injuries, if any, from her June 2, 2001 automobile accident?” The jury answered “$1,110 � $885 for previous office visits and $125 office visit for Dr. Funderburk.” Because the trial court concluded that the jury’s answer was ambiguous as to whether Allstate owed Adams for additional amounts for her visit to Funderburk and treatment by Kimble, the trial court submitted Question No. 1a to the jury. Question 1a is identical in content to Question 1, except that it instructs the jury to answer “only as to medical bills associated with the sensory nerve conduction threshold test performed by JOE KIMBLE.” The jury answered $0 to Question 1a. The trial court then entered a take-nothing judgment against Adams. HOLDING:Affirmed. Texas Rule of Civil Procedure 295 allows a trial court to clarify a verdict by instructing the jury of the nature of the ambiguity or conflict and retiring the jury for further deliberations. The trial court properly reconciled the jury’s verdict so as to render a take-nothing judgment on Adams’s Article 21.55 claim. By striking Kimble’s affidavit, the trial court’s sanction directed the order at the abuse associated with Kimble, and prevented the prejudice of allowing Kimble’s affidavit to be used at trial without allowing Allstate the opportunity to effectively refute it. The trial court’s order cannot be regarded as an excessive sanction. The trial court implemented a less stringent measure when it ordered Adams to supplement discovery with Kimble’s location. When the trial court’s order failed to fully promote compliance, the court did not abuse its discretion in striking the affidavit. The court struck Kimble’s affidavit, but nevertheless allowed Adams to present Kimble’s medical records to the jury. OPINION:Bland, J.; Keyes, Alcala and Bland, J.J.

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