
NO. 07-01-0377-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

OCTOBER 30, 2001

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IN RE TRINITY UNIVERSAL INSURANCE COMPANY, RELATOR


_______________________________


Before BOYD, C.J., and QUINN and REAVIS, JJ.

	By this original proceeding, relator Trinity Universal Insurance Company (Trinity)
seeks a writ of mandamus to compel respondent, the Honorable Steven R. Emmert,
presiding judge of the 31st District Court of Gray County, to vacate his order signed
September 14, 2001, and enter an order granting Trinity's motion for severance and
abatement in its entirety in cause number 31,677 styled Lilith Brainard, et al. v. Premier
Well Service, Inc., et al. (Premier). (1)  For the reasons expressly below, we conditionally
grant the petition for writ of mandamus.

	Trinity issued its insurance policy to Brainard Cattle Company, E.S.F. Brainard, et
al. for a policy period commencing August 26, 1998 through August 26, 1999.  Among
other provisions, the policy included an uninsured/underinsured (UIM) motorists insurance
endorsement.  Edward H. Brainard, II, an insured under the policy, sustained fatal injuries
in a head on collision with a motorized work over rig owned and operated by an employee
of Premier.  After the Brainards filed their original petition in the underlying action against
Premier and its employee seeking to recover damages occasioned by the accident and
discovered that the limits of liability insurance for Premier did not exceed one million
dollars, the Brainards made a written claim on April 18, 2000 for UIM benefits and Trinity
acknowledged receipt of the claim and requested supporting information.  
	By their second amended petition filed October 30, 2000, the Brainards joined
Trinity as a defendant and asserted several claims pursuant to the contract, including
claims under the UIM endorsement and good faith/unfair settlement practices and article
21.55 of the Texas Insurance Code entitled Prompt Payment of Claims.  Tex. Ins. Code
Ann. art. 21.55 (Vernon Pamph Supp. 2001).  Following the Brainards' settlement with and
dismissal of their claims against Premier and the operator of its equipment, (2) by order
signed June 11, 2001, among other things, the trial court denied Trinity's first motion for
severance.  Then, on June 29, 2001, Trinity filed it's second motion for severance and
abatement, which the trial court partially granted.  The trial court severed the Brainards'
good faith/unfair settlement practices and article 21.21 claims, but denied severance of the
article 21.55 claim.  Because the Brainards do not challenge the severance of their good
faith/unfair settlement practices and article 21.21 claims, the question presented for our
decision is whether the trial court abused its discretion in failing to grant the motion for
severance of the Brainards' claims under article 21.55 as applicable to their UIM claims. 
 Standards of Review

	Severance.	 Rule 41 of the Texas Rules of Civil Procedure provides that "[a]ny
claim against a party may be severed and proceeded with separately."  In McGuire v. 
Commercial Union Insurance Co. of N.Y., 431 S.W.2d 347, 351 (Tex. 1968), the Court held
that the rule refers to a claim "which is a severable part of a controversy which involves
more than one cause of action.  [Citation omitted].  Rule 41 grants the trial judge broad
discretion in the matter of consolidation and severance of causes."  Id.  The objective of
a severance is to do justice, avoid prejudice, and further convenience.  Guaranty Federal
v. Horseshoe Operating, 793 S.W.2d 652, 658 (Tex. 1990).  A claim is properly severable
if (1) the controversy involves more than one cause of action, (2) the severed claim is one
that would be the proper subject of a lawsuit if independently asserted, and (3) the severed
claim is not so interwoven with the remaining action that they involve the same facts and
issues.  Id; Lusk v. Puryear, 896 S.W.2d 377, 379 (Tex.App.--Amarillo 1995, orig.
proceeding).  The rule, however, does not contemplate the severance of one cause of
action into two or more parts.  Pierce v. Reynolds, 160 Tex. 198, 329 S.W.2d 76, 78
(1959).
	Mandamus.	 Because Trinity's challenge to the order denying severance as to the
article 21.55 claim is addressed to an abuse of discretion vested in the trial court, Trinity
carries a heavy burden.  To prevail Trinity "must establish, under the circumstances of the
case, that the facts and law permit the trial court to make but one decision."  Johnson v.
Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985).  In reviewing rulings within the
trial court's discretion, we may not substitute our judgment for that of the trial court.  Id. at
918.  Nor may we resolve factual disputes in mandamus proceedings.  Brady v. Fourteenth
Court of Appeals, 795 S.W.2d 712, 714 (Tex. 1990).  However, our review of the trial
court's determination of applicable law is less deferential because a trial court has no
discretion to determine what the law is or apply the law to the facts.  Walker v. Packer, 827
S.W.2d 833, 840 (Tex. 1992).  Thus, a clear failure of the trial court to analyze or apply the
law correctly will constitute an abuse of discretion. 
	 A writ of mandamus will issue only where there is no adequate remedy at law and
to correct "a clear abuse of discretion." (Emphasis added).  Johnson, 700 S.W.2d at 918. 
The test for abuse of discretion is whether the trial court acted without reference to any
guiding rules and principles or whether the act was arbitrary and unreasonable.  Downer
v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).  The fact that a trial
judge may decide a matter within his discretion in a different manner than an appellate
judge in similar circumstances does not demonstrate that an abuse of discretion has
occurred.  Id. 
Analysis

         	We commence our analysis by focusing on Trinity's grounds for its motion for
severance and the coverage provision of the UIM endorsement.  By its second motion for
severance and abatement, in summary, Trinity contended:
	First.  The UIM claim should be severed from the extra-contractual claims
because evidence of settlement negotiations and insurance policy limits may
be relevant to the extra-contractual claims but is not admissible as to the
UIM claims.
 Second.  Trinity should not be required to undergo the expense of discovery
as to the extra-contractual claims, when there is a substantial possibility that
the damages awarded in the contract claim will not exceed the limit of the
tortfeasor's policy, and thus will not even trigger the UIM endorsement,
which would preclude any necessity to discover or litigate the extra-contractual claims.

The coverage provision of the UIM endorsement in the policy provides:	
	We will pay damages which an insured is legally entitled to recover from the
owner or operator of an uninsured motor vehicle because of bodily injury
sustained by an insured, or property damage caused by an accident.  The
owner's or operator's liability for these damages must arise out of the
ownership, maintenance or use of the uninsured motor vehicle.
	Any judgment for damages arising out of a suit brought without our written
consent is not binding on us.  If we and you do not agree as to whether or
not a vehicle is actually uninsured, the burden of proof as to that issue shall
be on us. 

By their second amended petition by which Trinity was joined as a defendant, the
Brainards alleged that although they had made a claim for UIM benefits under the policy
before filing suit against Trinity, no benefits were paid under the policy.  In addition to
contract damages, the Brainards also sought to recover interest and attorney's fees under
article 21.55, in addition to claims of good faith/unfair settlement practices.  
Severability of UIM and Article 21.55 Claims
 
	Although the Brainards do not challenge Trinity's statement that it made an offer to
settle the UIM claim, they contend severance was not proper under Lusk v. Puryear, 896
S.W.2d 377 (Tex.App.--Amarillo 1995, orig. proceeding).  From the limited record, it
appears that the trial court based its decision to deny the severance of the UIM prompt
payment on our decision in Lusk; however, Lusk is not controlling because of the
provisions of the UIM endorsement, the recent decision in Allstate Ins. Co. v. Bonner, 51
S.W.3d 289 (Tex. 2001), and other reasons discussed below.  
 Lusk did not involve a claim for UIM benefits.  In Lusk, we held that a cross-action
against an insurer for breach of contract and for statutory damages for failure to promptly
pay personal injury protection benefits constituted one cause of action and that a
severance of the claims was improper.  896 S.W.2d at 380.  However, unlike personal
injury protection benefit coverage, the provisions of the UIM endorsement condition
payment of benefits upon a determination of liability of the UIM motorist and damages.  In
Henson v. Texas Farm Bureau Mut. Ins. Co, 989 S.W.2d 837, 839-40 (Tex.App.--Amarillo
1999), aff'd, 17 S.W.3d 652 (Tex. 2000), we denied an award of prejudgment interest
because the condition precedent provision in the contract for payment of the UIM claim
remained to be determined when the UIM claim was presented.  The Brainards' claim for
UIM benefits is contractual in nature.  See Henson, 17 S.W.3d at 653-54; see also U.S.
Fire Ins. Co v. Millard, 847 S.W.2d 668, 672-73 (Tex.App.--Houston [1st Dist.]1993, orig.
proceeding) (holding that a breach of insurance contract claim is separate and distinct
from bad faith, Insurance Code, or DTPA claims, and
	[u]ninsured motorist claims and bad faith claims have been recognized as
separate and distinct causes of action which might each constitute a
complete lawsuit within itself.

Citing State Farm Ins.  Co. v. Wilborn, 835 S.W.2d 260, 261 (Tex.App.--Houston [14th Dist.]
1992, orig. proceeding).  In Bonner, 51 S.W.3d at 291-92, which involved a prompt
payment claim under UIM endorsement, the Court held that in order to establish a UIM
claim under the policy, the claimant must prove not only that the UIM driver negligently
caused the accident that resulted in the covered damages, but also that all applicable
policy provisions were satisfied.  The Court also denied an award of attorney's fees under
section 6 of article 21.55.  Also, in State Farm Mut. Auto Ins. Co. v. Grayson, 983 S.W.2d
769, 770 (Tex.App.--San Antonio 1998, no pet.), cited with approval in Bonner, 51 S.W.3d
at 292, the court stated the rules that a claimant must (1) establish the negligence of the
UIM operator and the amount of claimant's damages, and (2) that the operator was in fact
uninsured.
	State Farm Ins. Co. v. Wilborn, 835 S.W.2d 260 (Tex.App.--Houston [14th Dist.]
1992, orig. proceeding) and U.S. Fire Ins. Co. v. Millard, 847 S.W.2d 668 (Tex.App.--Houston [1st Dist.] 1993, orig. proceeding) recognize that because uninsured motorist
claims and bad faith claims are separate and distinct causes of action and each may
constitute a complete lawsuit, severance of the claims and abatement of the bad faith
claims is appropriate because of the irreconcilable conflict between the respective parties'
interests if severance is denied.  Further, in Millard, 847 S.W.2d at 673, in its discussion
of abatement the court recognized that judicial efficiency may be enhanced by severance
and abatement because litigation of the extra-contractual claims may never be required
because of the results of the contract litigation, which is addressed in Trinity's second
ground. (3) Because (1) the claim for UIM benefits is contractual and the claim for penalty
under article 21.55 controversy involves more than one cause of action, (2) the severed
claim is one that would be the proper subject of a lawsuit if independently asserted, and
(3) the article 21.55 claim is not so interwoven with the tort action and contract action that
they involve the same facts and issues, the claim for damages under article 21.55 was
severable.  
Mandamus

	Having determined that the article 21.55 claim was severable, we must now 
determine whether a writ of mandamus is appropriate, which requires that we find  that (1)
the trial court abused its discretion, and (2) that Trinity has no adequate remedy at law. 
Regarding the abuse of discretion finding, our analysis above demonstrates that it is clear
that a UIM claim does not mature until the claimant establishes that the negligence of the
UIM motorist (1) caused the accident and the amount of damages, (2) the motorist was in 
fact underinsured, and (3) severance of the article 21.55 claim as it relates to the UIM
claim is appropriate, and the trial court abused its discretion in denying the severance of
the article 21.55 claim. 
	Regarding the adequate remedy at law factor, Trinity contends that it has none and
that mandamus is necessary because of the unacceptable dilemma presented if it is forced
to try both the fundamental issues of liability in conjunction with claims addressing its
evaluation of liability.  Wilborn, 835 S.W.2d at 262.  As in Millard, 847 S.W.2d at 675-76,
we conclude that Trinity has a substantial right to the exclusion from evidence of its
settlement offers and negotiations in the trial of the UIM claim.  Also, severance is favored
for reasons of judicial economy and to avoid the potential of unnecessary expense to the
parties for similar reasons.  Id.  We conclude that Trinity does not have an adequate
remedy at law.
 Laches and Motion for Sanctions
	We have not overlooked the Brainards' defense of laches and motion for sanctions.
Contending that Trinity knew or should have known that the trial court intended to deny
severance of the article 21.55 claim since at least August 8, 2001, the Brainards assert
that laches bars mandamus and that Trinity should be sanctioned because the mandamus
proceeding was merely brought for delay.  We disagree.  Even if counsel for Trinity were
aware in early August that the trial court had decided to deny the severance as to the
article 21.55 claim, the trial court did not sign its order granting the motion as to some
claims and denying the severance as to the article 21.55 claim until September 14, 2001. 
Because the petition for mandamus was filed on September 17, 2001, laches does not
apply and the Brainards' motion for sanctions is denied.
	Concluding that the trial court abused its discretion in denying severance of the
article 21.55 claim as related to the Brainards' UIM claim, and finding that Trinity has no
adequate remedy at law, we conditionally grant the petition for writ of mandamus.  We are
confident the trial court will now grant the motion to sever the article 21.55 claim from the
contract claim in accordance with this opinion.  We instruct the Clerk to issue the writ only
if the trial court fails to grant the motion within thirty days.
 
						Don H. Reavis
						    Justice
 
Publish.                                                                                        		
1. Real Parties in interest include Lilith Brainard, Sally Brainard Wicker, E. Swasey
F. Brainard, II, Amy Brainard, Berklee Brainard Clements, Sena Brainard and the Estate
of Edward H. Brainard, II, collectively referred to as the Brainards.
2. The order of dismissal as to Premier and its operator did not dismiss the Brainards'
claims against Trinity.
3. Severance of the article 21.55 claim will not require additional litigation because
the trial court did order a severance of the bad faith and article 21.21 claims.  
