If used as evidence, the consideration of the list by the trial court in deciding whether or not to proceed to an in camera inspection was not a clear abuse of discretion. Cf. Turbodyne Corp. v. Heard, 698 S.W.2d 703 (Tex.App. — Houston [14th Dist.] 1985, no writ). The application for writ of mandamus is denied.

PER CURIAM. Turbodyne Corporation, et al. filed this original mandamus action in this court to order Judge Hyatt Heard of the 190th District Court of Harris County to rescind his order denying discovery of 39 documents from Travelers Insurance Company. The Fourteenth Court of Appeals in Harris County denied mandamus relief in Turbodyne Corp. v. Heard, 698 S.W.2d 703 (Tex.App. — Houston [14th] 1985, orig. proceeding). Travelers contends that these documents are privileged under TEX.R.CIV.P. 166b.

Travelers' affidavits stated that its experts were employed to investigate the accident and that immediately after the accident there was good cause to believe a subrogation suit would be filed. The trial court had denied discovery of Travelers' documents, and the appellate court denied mandamus relief. Turbodyne Corp. v. Heard, 698 S.W.2d 703 (Tex.App. — Houston [14th Dist.] 1985). The supreme court, however, citing Lindsey, ruled that Travelers had not sustained its burden to prove that the evidence was acquired or developed in anticipation of litigation, and granted mandamus relief. There, the court reiterated that the mere fact that an accident has occurred is not sufficient to clothe all post-accident investigation with privilege. Turbodyne, at 804; Stringer v. The Eleventh Court of Appeals, 720 S.W.2d 801 (Tex. 1986).

the occurrences or transaction out of which the claim has arisen. Relying primarily on Maryland American General Insurance Co. v. Blackmon, 639 S.W.2d 455 (Tex. 1982), Turbodyne Corp. v. Heard, 698 S.W.2d 703 (Tex.App. — Houston [14th Dist.] 1985), rev'd, 29 Sup.Ct.J. 521 (July 9, 1986)) and Cupples Products Co. v. Marshall, 690 S.W.2d 623 (Tex.App. — Dallas 1985, no writ), Relator claims that the plaintiff's request for production includes documents protected from discovery under rule 166b(3)(d). The plaintiff, on the other hand, claims that the documents are not protected because the claims file generated by Relator pertained to the car collision, not to the misrepresentation and fraud claims added in the second amended petition.

It is undisputed that the documents sought to be protected here meet the first part of this test. In support of its contention that the documents also meet the second and third parts of the test, Service Lloyds cites Turbodyne Corporation v. Heard, 698 S.W.2d 703 (Tex.App. 1985, orig. mand. proceeding) and Cupples Products Co. v. Marshall, 690 S.W.2d 623 (Tex.App. 1985, orig. mand. proceeding). Unlike the dispute underlying the present proceeding, each of those cases involved separate causes of action arising from a single injurious occurrence, and discovery of investigation files was not allowed.

The present case provides a clearer basis for discovery than any case cited by either side. In Turbodyne Corporation v. Heard, 698 S.W.2d 703 (Tex.App.-Houston [14th Dist.] 1985, no writ) and Cupples Products Co. v. Marshall, 690 S.W.2d 623 (Tex.App.-Dallas 1983, no writ), the investigation files sought through discovery dealt with the exact issues presented in the suit in which discovery was sought. In Cupples, the plaintiff had filed a claim for workers' compensation benefits and a suit for gross negligence, both arising out of the job-related death of her spouse.

Without the reports he seeks in the present case, Relator claims he will lack serious proof of causation of the accident. Respondent argues the trial court was correct and cites Turbodyne v. Heard, 698 S.W.2d 703, 704 (Tex.App. — Houston [14th Dist.] 1985, no writ) wherein a panel of this court denied discovery pursuant to Rule 166b(3)(d) and further held the rule should be read literally. The Turbodyne opinion was based on the belief that the new rule created a special exception that overruled Allen v. Humphreys.