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Texas Court Update Regarding Recent Opinions Dealing with Personal Automobile Insurance Policies 2006-07

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Texas Court Update Regarding Recent Opinions Dealing with Personal Automobile Insurance Policies 2006-07 TEXAS COURT UPDATE REGARDING RECENT OPINIONS DEALING WITH PERSONAL AUTOMOBILE INSURANCE POLICIES 2006-07 JAMES J. DOYLE III RAYMOND T. FISCHER Cooper & Scully, P.C. 900 Jackson Street, Suite 100 Dallas, TX 75202 State Bar of Texas 14th ANNUAL COVERAGE AND BAD FAITH SEMINAR March 30, 2007 Dallas, Texas D/678332.1 TABLE OF AUTHORITIES CASES Allstate Indem. Co. v. Collier, 983 S.W.2d 342 (Tex. App.—Waco 1998, pet. dism'd by agr.)....................................2 Allstate Ins. Co. v. Hunt, 469 S.W.2d 151 (Tex.1971).....................................................................................9, 10 Allstate v. Hyman, No. 06-05-00064-CV, 2006 WL 694014 (Tex. App.—Texarkana March 21, 2006, no pet.) .................6, 7, 11 Battaglia v. Alexander, 177 S.W.3d 893 (Tex.2005)...........................................................................................3 Brainard v. Trinity Universal Insurance Co., 50 Tex. Sup. Ct. J. 271, 2006 WL 3751572 (Tex. Dec. 22, 2006) ............................1, 2 Henson v. Southern Farm Bureau Cas. Ins. Co., 17 S.W.3d 652 (Tex. 2000)............................................................................................2 Jankowiak v. Allstate Property & Cas. Ins. Co., 201 S.W.3d 200 (Tex. App.—Houston [14th Dist.] 2006, no pet.).............................10 Lewis v. Allstate Ins. Co., No. 09-05-225-CV, 2006 WL 665790 (Tex. App.—Beaumont, March 16, 2006, no pet.).........................12 Lopez v. Farmers Texas County Mut. Ins. Co., No. 06-06-00024-CV, 2007 WL 703496 (Tex.App.—Texarkana Mar. 9, 2007, no pet.) .................................................................................................................7 Menix v. Allstate Indem. Co., 83 S.W.3d 877 (Tex.App.—Eastland 2002, pet. denied) ..............................................2 Mid-Century Ins. Co. of Texas v. Daniel, No. 07-05-0014-CV, 2007 WL 414330 (Tex. App.—Amarillo Feb. 7, 2007, no pet. h.) ...................................................................................................................6, 7 Norris v. State Farm Mut. Auto Ins. Co., 2004 WL 811722 (Tex. App.—Waco 2004) reversed by State Farm Mut. Auto Ins. Co. v. Norris, 50 Tex. Sup. Ct. J. 269, 2006 WL 3751580 (Tex. Dec. 22, 2006) ........................................................................................................................2 Perez v. Kleinert, i D/678332.1 211 S.W.3d 468 (Tex. App.—Corpus Christi 2006, no pet.) ....................................8, 9 State Farm Mut. Auto. Ins. Co. v. Nickerson, 50 Tex. Sup. Ct. J. 268, 2006 WL 3754824 (Tex. Dec. 22, 2006) ............................4, 5 State Farm Mut. Auto Ins. Co. v. Norris, 50 Tex. Sup. Ct. J. 269, 2006 WL 3751580 (Tex. Dec. 22, 2006) ................................5 State Farm Mut. Auto. Ins. Co. v. Shaffer, 888 S.W.2d 146 (Tex. App.—Houston [1st Dist.] 1994, writ denied) ..........................2 Stracener v. United States Auto. Ass'n, 777 S.W.2d 378 (Tex.1989)...........................................................................................2 Unigard Sec. Ins. Co. v. Schaefer, 572 S.W.2d 303 (Tex.1978).......................................................................................7, 8 MISCELLANEOUS TEX. INS. CODE art. 21.55 ....................................................................................................7 TEX. CIV. PRAC. & REM. CODE sec. 38.002 .................................................................4, 6, 7 TEX. CIV. PRAC. & REM. CODE sec. 38.002(3).....................................................................5 TEX. FIN. CODE art. 304.102 ........................................................................................2, 3, 4 TEX. INS. CODE art. 5.06-1(5) ..............................................................................2, 4, 5, 6, 7 ii D/678332.1 Few areas of insurance law affect as wide a damages. The Texas Supreme Court granted contingent as personal automobile insurance review after finding disagreement among the policies and in particular uninsured and appellate courts, and addressed three issues: (1) underinsured motorist coverage. However, due whether UM/UIM motorist coverage covers to the unique nature of personal automobile line prejudgment interest which an underinsured policies, it seems that every year, new and motorist would owe the insured under tort different issues arise. This article will address liability; (2) if such prejudgment interest is such recent developments, including recent covered, how would any settlement or PIP decisions by the Texas Supreme Court, various credits be applied to the interest calculation; and Courts of Appeal, as well as recent legislative (3) whether an insured may recover attorney’s initiatives. fees from the UIM insurer under TEX.CIV.PRAC. & REM.CODE Chapter 38.5 Brainard v. Trinity Universal Insurance Co., 50 Tex.Sup.Ct.J. 271, 2006 WL The court first addressed the issue of 3751572 (Tex. Dec. 22, 2006) whether UIM coverage also includes any prejudgment interest an underinsured motorist In Brainard, the plaintiff, Brainard, brought would owe an insured. The court observed that a wrongful death action against the owner of a while the trial court correctly applied the rig which collided head-on with the vehicle her received $1,000,000 and $5,000 as offsets to the husband was driving, killing him.1 Brainard and plaintiffs’ actual damages, the real issue was, in her five children also sought UIM benefits from addition to the $5,000 difference, which Trinity Trinity, the insurer of the family business. agreed would be covered under the plaintiffs’ Trinity initially paid $5,000 in PIP benefits, but UIM policy, whether the UIM policy would also was later joined by Brainard in the action, cover the prejudgment interest the driver would, alleging Trinity to have committed breach of under tort liability, owe to the plaintiffs on the 6 contract and the duty of good faith and DTPA entire $1,010,000 in actual damages. The court and Insurance Code violations.2 After Brainard pointed out that prejudgment interest is awarded and the rig owner settled the claim for the to fully compensate injured parties rather than to owner’s policy limits of $1,000,000, Brainard punish defendants, and that prejudgment interest demanded that Trinity tender the UIM limits of is mandated by statute in wrongful death cases, 7 $1,000,000, and Trinity countered with an offer among others. The court found that if a of $50,000.3 The trial court severed the claims plaintiff obtains a judgment against a tortfeasor and proceeded to trial on the UIM issue, and for past damages resulting from a collision, found that the negligence of the rig owner prejudgment interest would be owed by the caused the accident, and awarded Brainard tortfeasor, and the plaintiff’s UIM contract $1,010,000 for pecuniary and nonpecuinary would govern whether this interest is 8 losses, and $100,000 in attorney’s fees.4 The recoverable from the plaintiff’s insurer. In court applied a credit for the received examination of the Trinity UIM policy, the court $1,000,000 from the settlement and $5,000 for found that Trinity was to pay Brainard “damages already-received PIP benefits. Trinity appealed, which [Brainard] is legally entitled to recover 9 challenging the award of attorney’s fees, while from [a tortfeasor].” The court observed that Brainard appealed, arguing that the trial court two appellate courts had previously considered erred in failing to award prejudgment interest on prejudgment interest to be included in those the amount originally awarded for actual 5 Id. 1 2006 WL 3751572 at *1. 6 Id. at *2 2 Id. 7 Id. 3 Id. 8 Id. 4 Id. 9 Id. 1 D/678332.1 damages an insured is “legally entitled to damages caused by the motor vehicle accident recover” from the UIM insurer.10 The court are covered.15 The court concluded that while considered Trinity’s argument that the UIM prejudgment interest does accrue because of lost policy required only payment of damages which use of money, it also constitutes additional the insured would be legally entitled to recover compensatory damages for the insured’s bodily “because of bodily injury or property damage,” injury and property damage.16 as set forth by TEX.INS.CODE art. 5.06-1(5), and that this condition prevented prejudgment The court addressed the alternative interest from being recoverable since argument of Trinity, that the relationship prejudgment interest is essentially compensation between Brainard and Trinity is one of for lost use of money by the plaintiff, and not contractual parties, and that as such, actual damages from bodily injury.11 Trinity TEX.FIN.CODE art. 304.102, authorizing also argued that allowing prejudgment interest to prejudgment interest in wrongful death and be covered would essentially require a UIM personal injury cases, would not apply.17 The insurer to cover all damages assessed against an Court of Appeals, in addressing this argument of underinsured motorist, thereby running Trinity’s, cited the Texas Supreme Court’s contradictory to previous appellate courts’ reasoning from Henson v. Southern Farm decisions that exemplary damages are not Bureau Cas. Ins. Co., 17 S.W.3d 652, 653-54 covered under UIM policies.12 (Tex.2000), where it held that, pursuant to a UIM policy, there is no contractual duty on an The court found that Trinity’s narrow insurer to pay benefits until the liability of the interpretation of damages “because of bodily other motorist and amount of damages the injury” was not accurate, and that while it is true
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