Texas Supreme Court Rejects Attempt to Overturn Brainard

March 31st, 2019 By Catherine Hanna

On Friday, March 29, 2019, the Texas Supreme Court denied review in Case No. 18-0231, Weber v. Progressive.  Hanna & Plaut’s Jeff Glass and David Plaut represented Progressive in this UM/UIM case that sought to overturn the Texas Supreme Court’s Brainard and Henson decisions.

Weber argued that she “complied with all conditions precedent” to sue for breach of contract on her personal auto policy with Progressive when she obtained consent to settle with the underlying tortfeasor after exhaustion of the tortfeasor’s liability limits.  She urged the Texas Supreme Court to look to the law of other jurisdictions, contending that she should not have secure a judgment against either the tortfeasor or directly against the UM/UIM carrier to prove the liability of the tortfeasor and the amount of her damages as both Brainard and Henson require.

In the Supreme Court, Progressive argued that Brainard and Henson preclude any exhaustion theory that the UM/UIM carrier becomes potentially liable for UM/UIM policy limits automatically after exhaustion of the underlying tortfeasor’s liability limits. In the courts below, Weber founded her breach of contract and extra-contractual claims exclusively on that theory, arguing exhaustion of the underlying UIM limits obviated any need to prove the tortfeasor’s liability and the amount of damages. Under Weber’s exhaustion theory, settlement alone would have replaced the Brainard requirements as the only pre-condition to recovery of UIM benefits. Denying Weber’s Petition for Review, the Supreme Court affirmed the dismissal of Weber’s suit for her refusal to plead anything other than a breach of contract “based on the Exhaustion Doctrine.”