UM/UIM


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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The Western District Takes a Wrong Turn on the UM/UIM Highway

October 18th, 2019 By David L. Plaut

A new federal UM/UIM “bad faith” decision out of the San Antonio Division of the Western District of Texas – Civil Action No. SA-19-CV-00180-FB-ESC, Trejo v. Allstate Fire and Casualty Ins. – involves claims against an insurance adjuster and allegations of improper joinder remand.  The magistrate’s report in Trejo found an Insurance Code cause of action against the adjuster under Chapter 541 despite the Texas Supreme Court’s decision in Brainard v. Trinity Universal Ins. Co., 216 S.W.3d. 809 (Tex. 2006).
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Keeping Adjusters Out of the Hot Seat – UM/UIM Edition

February 3rd, 2019 By Sheila Tan

UM/UIM cases are a unique hybrid of tort and contract. Although the insured’s own insurance carrier is often named as a defendant, it has no contractual duty to pay benefits until after the liability of the insured and the other motorist, as well as the damages suffered by the insured, have been determined. Brainard v. Trinity Universal Ins. Co., 216 S.W.3d 809, 815 (Tex. 2006). Trial courts often struggle with the dilemma of how to avoid the prejudicial injection of insurance
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