UM/UIM


Texas courts provide important roadmap regarding discovery in UM/UIM cases.

May 22nd, 2022 By David L. Plaut

Two recent decisions about discovery in the uninsured/underinsured motorist (“UM/UIM”) context are important to note.  The Texas Supreme Court’s decision in In re USAA General Indemnity Co., 624 S.W.3d 782 (Tex. 2021) severely limits the availability and scope of corporate representative depositions in UM/UIM cases.  Moreover, the brand-new decision of the Dallas Court of Appeals in In re Home State County Mut. Ins. Co. d/b/a Safeco and Najeeba Aneesa Sabour (Tex. App.–Dallas May 10, 2022, orig. proceed.) applies USAA and
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Austin Court Reiterates “Texas Two-Step” in UM/UIM Cases: Severance of Declaratory and Extra-Contractual Claims Required

January 31st, 2022 By David L. Plaut

In an Opinion by Chief Justice Darlene Byrne, the Austin Court of Appeals recently granted mandamus requiring severance in an underinsured (“UIM”) case against Allstate after a parking lot collision. See Cause No. 03-21-00515-CV, In re Allstate Fire and Cas. Ins. Co. (Tex. App.–Austin Jan. 12, 2022, orig. proceed.). Plaintiff had asserted negligence and gross negligence claims against the tortfeasor as well as declaratory and Insurance Code “extracontractual” claims against Allstate.  The Insurance Code claims included alleged misrepresentations, an unreasonable
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Texas Supreme Court Holds Attorneys’ Fees May Be Recovered in UM/UIM Cases

June 6th, 2021 By David L. Plaut

In a long-awaited decision, the Texas Supreme Court decided Cause No. 19-0885, Allstate Insurance Co. v. Daniel Irwin (Tex. May 21, 2021) and the hotly-contested issue of whether attorneys’ fees are available in UM/UIM cases.  In a 5-4 decision authored by Justice John Devine, the Court’s majority held “a declaratory judgment action is the appropriate remedy for determining the underlying tort issues that control the validity of the insured’s [UM/UIM] claim against his insurer.”  Slip op. at *2, 5, and
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In Re State Farm Requires Resolution of the “Car Crash” Case Before Consideration of any “Bad Faith” Claims

March 30th, 2021 By David L. Plaut

On March 19, 2021, the Texas Supreme Court issued an Opinion by Justice Blacklock reaffirming the continuing importance of its Brainard decision in the uninsured/underinsured (“UM/UIM”) motorist context. See In re State Farm Mutual Auto Ins. Co. et al. Without dissent, the Court held that UM/UIM claimants “must first obtain determinations of the third-party drivers’ liability and the amount of damages” in order to establish coverage. Slip Op. at *10. Because there was no judgment establishing the liability of the
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Texas Supreme Court Hears Oral Argument on Allstate v. Irwin

January 7th, 2021 By David L. Plaut

The Texas Supreme Court heard oral argument on Thursday, January 7, 2021 in Allstate v. Irwin, an underinsured motorist case out of San Antonio addressing the availability of attorneys’ fees in such cases.  Plaintiff Daniel Irwin sued Allstate seeking a declaration that he was entitled to recover damages resulting from the wreck under his UM/UIM benefits policy and attorneys’ fees.  On appeal, Allstate argued the trial court abused its discretion in awarding Irwin declaratory relief and attorneys’ fees. Oral argument
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Texas Supreme Court Agrees to Hear UM/UIM Attorneys’ Fees Case

October 5th, 2020 By David L. Plaut

On Friday, October 2, 2020, the Texas Supreme Court granted Allstate’s Petition for Review in Cause No. 19-0885, Allstate Insurance Company v. Irwin, on appeal from the Fourteenth Court of Appeals.  The case addresses the question of whether policyholders can recover attorneys’ fees in uninsured/underinsured (UM/UIM) cases that are pled as  declaratory judgment actions.  The Supreme Court’s previous decisions in Brainard and Henson would appear to foreclose recovery of attorneys’ fees in the absence of an underlying judgment establishing the
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Breaking News on UM/UIM

August 31st, 2020 By Catherine Hanna

On Friday, the Texas Supreme Court set an underinsured motorist (UIM) mandamus case – Cause No. 19-0791, In re State Farm Mutual Automobile Insurance Co. and Terecina Shahan – for oral argument on December 2, 2020.  The case revisits an issue presented to the Court in Weber v. Progressive Cty. Mut. Ins. Co., 2018 W. 564001 (Tex. App. – Dallas 2018, pet. denied) on Petition for Review.   In Weber, the Dallas Court of Appeals affirmed the dismissal of extracontractual UIM
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The More Things Change …The More They Stay the Same

August 11th, 2020 By Tara Mireur

The San Antonio Court of Appeals recently granted Progressive Insurance Company’s petition for writ of mandamus and directed the trial court to vacate its order denying Progressive’s motion to sever and abate the plaintiff’s extra-contractual allegations. In In re Progressive County Mutual Insurance Company, 2020 WL 3815927 (Tex. App. – San Antonio July 8, 2020, n.p.h.), the plaintiff, after settlement with the tortfeasor, brought a declaratory judgment action for recovery of UIM benefits under her insurance policy and alleged violations
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Court nixes attempted end-run around Brainard.

July 20th, 2020 By Lauren Burgess

The Southern District of Texas, McAllen Division recently issued an opinion in a UIM case that precludes the recovery of extra-contractual damages absent a finding that the insured was entitled to benefits. In Garza v. Allstate, the plaintiff brought suit against Allstate for violations of Chapter 541 of the Texas Insurance Code on the basis that Allstate denied his underinsured motorist claim “without providing any explanation.” Plaintiff specifically alleged that he was “not seeking any of the proceeds of the
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A Judicially Created Catch 22? The Settlement Without Consent Clause

February 3rd, 2020 By Karla Huertas

The uninsured/underinsured (UM/UIM)  coverage portion of Texas automobile insurance policies contains a “settlement without consent” provision which requires an insurer to obtain the consent of its insured before settling any claim. This condition exists to protect the interests of insurance carriers in recovering from a responsible party money paid to the insured in connection with an accident. Recently, in Davis v. State Farm Lloyds, Inc., 2019 WL 5884405 (Tex. App.—Dallas Nov. 12, 2019, no pet. h.), the Fifth Court of
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