                                  NO. 12-18-00141-CV

                          IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

 AMERICAN NATIONAL COUNTY                         §         APPEAL FROM THE 4TH
 MUTUAL INSURANCE COMPANY,
 APPELLANT
                                                  §         JUDICIAL DISTRICT COURT
 V.

 TINA HOLLAND,                                    §         RUSK COUNTY, TEXAS
 APPELLEE

                                  MEMORANDUM OPINION
       American National County Mutual Insurance Company (American National) appeals the
trial court’s judgment in favor of Tina Holland. In six issues, American National argues the trial
court should have severed and abated the extracontractual claims and the evidence is insufficient
to support the jury’s findings. We reverse and remand in part and reverse and render in part.


                                          BACKGROUND
       In April 2015, Holland was involved in a motor vehicle collision with a vehicle driven by
Nhachi Nguyen. Holland was covered by a personal automobile insurance policy with American
National at the time of the accident. That policy included underinsured motorist (UIM) benefits
with a limit of $100,000 per person and personal injury protection (PIP) benefits of $2,500.
Holland contacted American National following the accident and informed it that she intended to
recover her damages from Nguyen’s insurance carrier. At the time of the accident, Nguyen was
insured by Allstate, with bodily injury limits of $30,000. Holland also told American National
that she did not intend to make a PIP claim at that time.
       In June 2016, American National received a letter from Holland’s counsel that included
Nguyen’s liability limits and referenced Holland’s UIM benefits. Holland’s counsel sought
permission to settle with Allstate should a settlement offer be made. American National responded
that Holland could settle “so long as it is within [Allstate’s] policy limits and no payments are
claimed under the PIP or the UIM coverage.” When Holland’s counsel requested permission to
settle after an offer had been made, American National granted permission. After settling with
Nguyen and Allstate, Holland requested payment of the full UIM benefits.
       Holland requested PIP benefits on November 3, 2016. An email from Holland’s counsel
informed American National that Holland was making a claim for both PIP and UIM benefits
under her policy. Holland’s counsel also wrote a letter on November 4, 2016, in which he
requested reimbursement for Holland’s medical expenses under her PIP coverage. American
National paid the full PIP benefits on December 13, 2016.
       Holland subsequently sued American National for breach of contract under the UIM
provision of her policy and for violations of the Texas Insurance Code and general insurance
principles. American National filed a motion to sever and abate. The motion was not heard until
after voir dire, and the trial court denied the motion.
       Following trial, the jury found Holland suffered damages totaling $120,000 as a result of
the accident. The jury further found that American National engaged in an unfair or deceptive act
or practice and violated the duty of good faith and fair dealing but did not untimely pay the PIP
benefits. After finding that American National’s conduct was “knowingly,” the jury assessed
$10,000 in additional damages and attorney’s fees. American National filed a motion for judgment
notwithstanding the verdict and a motion for new trial. The trial court rendered judgment
consistent with the jury’s verdict and denied American National’s motions. This appeal followed.


                                            SEVERANCE
       In its first issue, American National contends the trial court abused its discretion when it
denied American National’s motion to sever and abate Holland’s extracontractual claims.
Standard of Review
       The trial court has broad discretion in the severance of causes of action. Morgan v.
Compugraphic Corp., 675 S.W.2d 729, 734 (Tex. 1984).             However, that discretion is not
unlimited. See U.S. Fire Ins. Co. v. Millard, 847 S.W.2d 668, 671 (Tex. App.—Houston [1st
Dist.] 1993, orig. proceeding). The trial court has a duty to order severance when “all of the facts
and circumstances of the case unquestionably require a separate trial to prevent manifest injustice,
and there is no fact or circumstance supporting or tending to support a contrary conclusion, and



                                                  2
the legal rights of the parties will not be prejudiced thereby.” Womack v. Berry, 291 S.W.2d 677,
683 (Tex. 1956).
       In most circumstances, a trial court’s decision to grant or deny a motion to abate is within
the court’s discretion. In re Allstate Cty. Mut. Ins. Co., 209 S.W.3d 742, 746 (Tex. App.–Tyler
2006, orig. proceeding). Abatement of extracontractual claims is required when, under the
circumstances, both parties would incur unnecessary expenses if the breach of contract claim were
decided in the insurer’s favor. In re Am. Nat’l Cty. Mut. Ins. Co., 384 S.W.3d 429, 436 (Tex.
App.–Austin 2012, orig. proceeding). Thus, abatement is necessary when a determination on the
breach of contract claim in favor of the insurer will negate the insured’s extracontractual claims.
Id. Without the abatement, the parties would be put to the effort and expense of conducting
discovery and preparing for trial of claims that may be disposed of in a previous trial. Id.
Applicable Law
       Any claim against a party may be severed and proceeded with separately. TEX. R. CIV. P.
41. Claims are properly severable if the controversy involves more than one cause of action, the
severed claim is one that would be the proper subject of a lawsuit if independently asserted, and
the severed claim is not so interwoven with the remaining action that it involves the same facts
and issues. Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 658 (Tex. 1990).
The controlling reasons to allow a severance are to avoid prejudice, do justice, and promote
convenience. F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 693 (Tex. 2007). A
severance divides the lawsuit into two or more separate and independent causes. Hall v. City of
Austin, 450 S.W.2d 836, 837-38 (Tex. 1970). When this has been done, a judgment that disposes
of all parties and issues in one of the severed causes is final and appealable. Id. at 838.
       In the context of insurance cases, a breach of an insurance contract claim is separate and
distinct from bad faith, Insurance Code, or DTPA causes of action and each might constitute a
complete lawsuit within itself. See Millard, 847 S.W.2d at 672; see also Liberty Nat. Fire Ins.
Co. v. Akin, 927 S.W.2d 627, 629 (Tex. 1996). But, in most circumstances, an insured may not
prevail on a bad faith claim without first showing that the insurer breached the contract. Akin, 927
S.W.2d at 629. And, in insurance cases involving bad faith claims, the Texas Supreme Court has
recognized that severance may be necessary if the “insurer has made a settlement offer on the
disputed contract claim” or if there are “other compelling circumstances.” Id. at 630.




                                                  3
       An insurer generally cannot be liable for failing to settle or investigate a claim that it has
no contractual duty to pay. See Progressive Cty. Mut. Ins. Co. v. Boyd, 177 S.W.3d 919, 922
(Tex. 2005). In the context of UIM coverage, an insurer is under no contractual duty to pay UIM
benefits until the insured proves that the insured has UIM coverage, that the other driver
negligently caused the accident that resulted in covered damages, the amount of the insured’s
damages, and that the other driver’s insurance coverage is deficient. See Brainard v. Trinity
Universal Ins. Co., 216 S.W.3d 809, 818 (Tex. 2006). Thus, an insured generally must first
establish that the insurer is liable on the contract before the insured can recover on extracontractual
causes of action against an insurer for failing to promptly pay, failing to settle, or failing to
investigate an underinsured motorist insurance claim. In re Allstate Cty. Mut. Ins. Co., 447
S.W.3d 497, 501 (Tex. App.–Houston [1st Dist.] 2014, orig. proceeding). As a result, Texas case
law establishes that severance and abatement of extracontractual claims is required in many
instances in which an insured asserts a claim for UIM benefits. Id.
Analysis
       American National argues that the trial court abused its discretion when it failed to sever
Holland’s extracontractual claims from the remainder of her causes of action. According to
American National, Holland was allowed to introduce evidence pertaining to the extracontractual
claims that inflated her UIM damages award. As a result, American National argues, it was
prejudiced by the failure to sever and abate. Holland argues that American National waived its
argument for a severance and that it was not prejudiced by the cases being tried together.
       Holland argues that American National waived its motion to sever by not presenting it to
the court for argument until after voir dire. We disagree. Texas Rule of Civil Procedure 41
provides:


       Misjoinder of parties is not ground for dismissal of an action. Parties may be dropped or added, or
       suits filed separately may be consolidated, or actions which have been improperly joined may be
       severed and each ground of recovery improperly joined may be docketed as a separate suit between
       the same parties, by order of the court on motion of any party or on its own initiative at any stage of
       the action, before the time of submission to the jury or to the court if trial is without a jury, on such
       terms as are just. Any claim against a party may be severed and proceeded with separately.



TEX. R. CIV. P. 41.




                                                          4
       “A literal interpretation of Rule 41 implies that only complaints about improper joinder
must be made prior to the time of submission to the jury.” Arlitt v. Weston, No. 04-98-00035-CV,
1999 WL 1097101, at *4 (Tex. App.–San Antonio Dec. 1, 1999, pet. denied) (not designated for
publication). And, “[o]therwise, the general rule that [a]ny claim against a party may be severed
and proceeded with separately applies, and the motion may be made at any time.” Id. (internal
quotations omitted). However, the Texas Supreme Court has interpreted Rule 41 to mean that “all
‘[p]arties and actions may be severed at any stage of the action, before the time of submission to
the jury.’” Id. (emphasis added) (quoting State Dep’t of Highways & Pub. Trans. v. Cotner, 845
S.W.2d 818, 819 (Tex. 1993)); see TEX. R. CIV. P. 41. Thus, Rule 41 does not “permit a trial court
to sever a case after it has been submitted to the trier of fact.” Cotner, 845 S.W.2d at 819
(emphasis added). A trial court abuses its discretion in ordering a severance after a jury verdict,
“regardless of the [three]-pronged test [for] severability.” Arlitt, 1999 WL 1097101, at *4.
Therefore, because American National presented its argument to the court and obtained a ruling
prior to the case’s submission to the jury, American National preserved its argument before this
Court. See TEX. R. APP. P. 33.1.
       Holland’s petition alleged that American National breached its duty of good faith and fair
dealing by conditioning its consent to settle the underlying claim on Holland’s agreement to waive
her UIM and PIP benefits. According to Holland, the letter violated the duty of good faith and fair
dealing as well as Section 541.060(a)(2)(B) of the Texas Insurance Code.             Under Section,
541.060(a)(2)(B), it is an unfair settlement practice to fail to attempt in good faith to effectuate a
prompt, fair, and equitable settlement of “a claim under one portion of the policy with respect to
which the insurer’s liability has become reasonably clear to influence the claimant to settle another
claim under another portion of the coverage unless payment under one portion of the coverage
constitutes evidence of liability under another portion.” TEX. INS. CODE ANN. § 541.060(a)(2)(B)
(West 2009). She further claimed that American National failed to timely acknowledge her claim.
Under Section 542.055 of the Texas Insurance Code, an insurance company must acknowledge
receipt of a claim, commence any investigation of a claim, and request all items, statements, and
forms it reasonably believes will be required from the claimant within fifteen business days. Id.
§ 542.055(a) (West 2009). According to Holland, these claims did not require severance because
they were not related to her UIM claim and not predicated on the failure to settle the UIM claim.




                                                  5
Holland further argues that American National was not prejudiced by the claims being tried
together. We disagree.
       It is undisputed that the extracontractual claims would be the proper subject of a lawsuit if
independently asserted and not so interwoven with the UIM claim that they involve the same facts
and issues. See Millard, 847 S.W.2d at 672; see also Akin, 927 S.W.2d at 629. Therefore, the
primary inquiry is whether American National was prejudiced by the failure to sever.
       At trial, Holland testified that she was aggravated with her insurance company because her
UIM claim had not been paid:


       Q. And you were asked about what you were going to do at the beginning of this and your dealings
       with the insurance company. Before you got involved in this, did you understand, I mean, did you
       really understand that you had $100,000 that your insurance could pay to you? I mean, did you
       really understand the concept of underinsured motorist benefits before this litigation?

       A. I understand that I have $300, $100, $300, and if I’m in an accident, that should be an option,
       and they are not giving it to me, haven’t even come close to offering what my medical has been.

       Q. Mrs. Holland, as we’re sitting here today, and they’re talking about PIP payments coming late
       and that not causing you any grief, I mean, I understand $2,500 may not have caused you financial
       hardship; is that right?

       A. Right.

       Q. Did it cause you grief that your insurance can be late, but you can’t?

       A. Oh, yeah.

       Q. Did it cause you grief that you’ve paid premiums and you have medical history -- medical in the
       future that you want to be able to pay for?

       A. Yes.

       Q. Has that caused you grief?

       A. Yes. It’s not grief. It’s, again, anger. It’s, you know.

       Q. You can call it whatever you want, but, I mean, there’s things in the future that you just can’t pay
       out-of-pocket?

       A. Right.

       Q. And I don’t know if you’re a little bit more relaxed than I am, but, I mean, have you worried
       about that at all?

       A. If I have to pay a hundred -- $70,000 for a surgery, yeah, I’m not going to be happy about that.

       Q. And why wouldn’t you be happy about that?

       A. I don’t have seventy-five -- $70,000 sitting in the bank account.



                                                           6
Holland was also asked about her interactions with the insurance company. One of Holland’s
claims concerned a letter from American National. Holland’s counsel had requested permission
to settle her claim against Nguyen should the insurer make a settlement offer. In response,
American National stated, “We agree with permission to proceed with settlement against Ms.
Nguyen’s liability policy with Allstate so long as it is within their policy limits and no payments
are claimed under the PIP or the UIM coverage.” Once Nguyen’s insurer made an offer, American
National granted permission to settle per the terms of the policy. However, this initial letter is the
basis of Holland’s claim that American National violated the duty of good faith and fair dealing.
Holland testified to the following:


       Q. Now, we saw your premium page earlier. Did you pay for PIP and UIM?

       A. Yes.

       Q. So looking at this letter, how did that make you feel?

       A. Well, I’m pretty aggravated with my insurance company. Like I said, I’ve had insurance with
       them for 22 years and never made -- done anything like this. I’m surprised that we’re here today.

       Q. Was it -- I mean, your involvement with our office has been at least, I believe, the latter part of
       2015; is that correct?

       A. Yes.

       Q. I mean, has this been a pleasant experience?

       A. No.

       Q. Has this caused you -- can you tell the jury whether or not this has caused you any type of anxiety
       dealing with your insurance company like this?

       A. I don’t know if it’s anxious or just mad, because I’ve paid them so much over the last 22 years.


In addition, Holland’s counsel emphasized these points in closing argument.


       Ladies and gentlemen, opposing Counsel is right. This is about money. This is about benefits that
       Mrs. Holland has paid to her insurance company that she’s entitled to, and they haven’t paid her
       anything over $2,500. And she’s had to drag them through discovery, drag them through depositions
       that were delayed, drag them to here for you to hear about that.
       ...
       You heard that [] this has been a fine experience for Mrs. Holland. She has -- this has not bothered
       her one bit. I can only imagine Mrs. Holland, as she’s being told time and time again by her insurance
       company, “We’re not going to pay for that. We’re not going to pay for that. Or we paid that late,
       sorry. Got to take us to court to do that. Sorry.”




                                                         7
        The above detailed evidence would not have been admissible in an ordinary UIM claim
case. Because an insurer has no duty to pay UIM benefits until the underlying damages in excess
of the third party’s insurance limits are proven, these issues are not relevant to establishing those
damages. See TEX. R. EVID. 401, 402; Brainard, 216 S.W.3d at 818. Holland argued that she
suffered financial hardship and aggravation because her UIM benefits were not paid. However,
UIM benefits are not owed until Holland obtains a judgment establishing that Nguyen was an
underinsured driver and showing the extent of Holland’s damages. See Brainard, 216 S.W.3d at
818. Accordingly, the record indicates that the extracontractual claims were used to prejudice the
jury against American National. As a result, the jury inflated the damages award to ensure Holland
received the entirety of her $100,000 in UIM benefits.1
        This conclusion is further supported by the fact that, during deliberations, the jury sent the
following note to the court regarding Holland’s damages for the car accident:


        “On question 1 on all blanks the $ we put on the blanks (8 of them) will that total # go to Ms.
        Holland?”


Ultimately, the jury awarded $15,000 in each of the eight damages categories for a total award of
$120,000. This amount was awarded in spite of the fact that the jury found American National did
not mishandle Holland’s PIP claim. Therefore, it appears the evidence submitted by Holland in
support of her alleged extracontractual claims was introduced solely to incite anger against
American National so that Holland would recover as much of her UIM benefits as possible.
Therefore, the failure to sever the extracontractual claims caused prejudice to American National
and probably resulted in the rendition of an improper judgment. See TEX. R. APP. P. 44.1(a). We
sustain American National’s first issue.


                                     SUFFICIENCY OF THE EVIDENCE
        In its second issue, American National argues the evidence is insufficient to support the
jury’s finding that it engaged in an unfair or deceptive act or practice. In its third issue, it contends


        1
          Additionally, evidence of Nguyen’s liability limits, as well as Holland’s UIM coverage limits, are
immaterial to the issues before the jury and inadmissible. See Liberty Mut. Ins. Co. v. Sims, No. 12-14-00123-CV,
2015 WL 7770166, at *9 (Tex. App.—Tyler Dec. 3, 2015, pet. denied) (mem. op.). This is because knowledge of
those amounts could affect the jury’s damages verdict. Id. at *8.


                                                       8
the evidence does not support the jury’s finding that American National failed to comply with its
duty of good faith and fair dealing. Even though we sustained American National’s first issue, we
address its legal sufficiency arguments because if sustained, it is our duty to reverse and render.
See Nat’l Life Accident Ins. Co. v. Blagg, 438 S.W.2d 905, 909 (Tex. 1969); see also In re C.S.,
208 S.W.3d 77, 83 (Tex. App.—Fort Worth 2006, pet. denied).
Standard of Review
       In conducting a legal sufficiency review of the evidence, we must consider all the evidence
in the light most favorable to the verdict and indulge every reasonable inference that would support
it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). In determining whether legally
sufficient evidence supports the finding under review, we must consider evidence favorable to the
finding, if a reasonable fact finder could consider it, and disregard evidence contrary to the finding,
unless a reasonable fact finder could not disregard it. Id. at 827; Brown v. Brown, 236 S.W.3d
343, 348 (Tex. App.–Houston [1st Dist.] 2007, no pet.). If the evidence at trial would enable
reasonable and fair-minded people to differ in their conclusions, the fact finder must be allowed
to do so. City of Keller, 168 S.W.3d at 822; see also King Ranch, Inc. v. Chapman, 118 S.W.3d
742, 751 (Tex. 2003). We will sustain a legal sufficiency or “no evidence” challenge if the record
shows one of the following: (1) a complete absence of evidence of a vital fact, (2) rules of law or
evidence bar the court from giving weight to the only evidence offered to prove a vital fact, (3) the
evidence offered to prove a vital fact is no more than a scintilla, or (4) the evidence establishes
conclusively the opposite of the vital fact. City of Keller, 168 S.W.3d at 810.
       More than a scintilla of evidence exists when the evidence rises to a level that would enable
reasonable and fair-minded jurors to differ in their conclusions. Wal–Mart Stores, Inc. v. Spates,
186 S.W.3d 566, 568 (Tex. 2006) (per curiam); Forbes Inc. v. Granada Biosciences, Inc., 124
S.W.3d 167, 172 (Tex. 2003). Any ultimate fact may be proved by circumstantial evidence.
Russell v. Russell, 865 S.W.2d 929, 933 (Tex. 1993). A fact is established by circumstantial
evidence when the fact may be fairly and reasonably inferred from other facts proved in the case.
Id. Evidence that is so slight as to make any inference a guess is in legal effect no evidence. Ford
Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004). Moreover, under the equal inference
rule, a factfinder may not reasonably infer an ultimate fact from meager circumstantial evidence
which could give rise to any number of inferences, none more probable than another. See Hancock
v. Variyam, 400 S.W.3d 59, 70–71 (Tex. 2013).



                                                  9
Analysis
       In her petition, Holland alleged two grounds for her extracontractual claims against
American National. First, she claimed American National failed to timely pay her PIP benefits.
Second, she alleged American National conditioned permission to settle on Holland waiving her
PIP and UIM benefits.
       With regard to the prompt payment claim, the evidence at trial showed that the motor
vehicle collision occurred on April 28, 2015. Holland immediately notified American National
that she intended to collect her damages from Nguyen and Nguyen’s insurance company. On May
4, 2015, American National sent Holland an application for PIP benefits. Holland neither
responded nor requested PIP benefits until eighteen months later. On November 3, 2016, Holland
tendered her claim for PIP benefits to American National. The PIP benefits were paid in full in
December 2016. Holland argued the PIP benefits were paid late; however, the jury found that
American National did not untimely make the PIP payment. As a result, the alleged failure to
untimely pay PIP benefits cannot serve as the basis for the jury’s findings that American National
engaged in a deceptive or unfair act or practice and violated the duty of good faith and fair dealing.
         The remainder of Holland’s claim that American National acted in bad faith and
deceptively centers around a June 29, 2016, letter from American National. On June 27, 2016,
Holland’s counsel requested permission to settle the claim against Nguyen should a settlement
offer be made. The letter stated in pertinent part:


       The purpose of this letter is to request your written permission to settle the claim against Ms. Nguyen
       should Ms. Nguyen make a settlement offer which would release her and her automobile insurance
       carrier from liability for the accident and resulting injuries. We would respectfully request your
       immediate written consent for Ms. Holland to accept a settlement offer if such offer is made so that
       this claim against Ms. Nguyen may be resolved.


American National responded by letter on June 29, 2016:


       This letter is in response to your request for permission of settlement. We agree with permission to
       proceed with settlement against Ms. Nguyen’s liability policy with Allstate so long as it is within
       their policy limits and no payments are claimed under the PIP or the UIM coverage.


Holland’s petition urged that this letter violated American National’s duty of good faith and fair
dealing and Section 541.060(a)(2) of the Texas Insurance Code. She argues that the letter



                                                        10
“misstates the rights of Holland by attempting to condition permission to settle [with] the
underlying motorist by having Holland waive her PIP and UIM claims.” As a result, Holland
contends the evidence is sufficient to support the jury’s findings that American National engaged
in a deceptive or unfair act or practice and violated the duty of good faith and fair dealing.
       In Question 2, the jury was instructed that it is an unfair method of competition or an unfair
or deceptive act or practice in the business of insurance to misrepresent an insurance policy by (1)
making an untrue statement of material fact; (2) failing to state a material fact necessary to make
other statements made not misleading, considering the circumstances under which the statements
were made; (3) making a statement in a manner that would mislead a reasonably prudent person
to a false conclusion of a material fact; (4) making a material misstatement of law; or (5) failing
to disclose a matter required by law to be disclosed, including failing to make a disclosure in
accordance with another provision of the Insurance Code. See TEX. INS. CODE ANN. § 541.061
(West 2009). The jury found that American National engaged in such an act.
       In Question 3, the jury was instructed that, per the Texas Insurance Code, an insurer
violates its duty of good faith and fair dealing, as pertinent to this case, in the following manner:
(1) misrepresenting to a claimant a material fact or policy provision relating to coverage at issue;
(2) failing to attempt in good faith to effectuate a prompt, fair, and equitable settlement of: (A) a
claim with respect to which the insurer’s liability has become reasonably clear; or (B) a claim
under one portion of a policy with respect to which the insurer’s liability has become reasonably
clear to influence the claimant to settle another claim under another portion of the coverage unless
payment under one portion of the coverage constitutes evidence of liability under another portion;
or (3) refusing, failing, or unreasonably delaying a settlement offer under applicable first-party
coverage on the basis that other coverage may be available or that third parties are responsible for
the damages suffered, except as may be specifically provided in the policy.                  See id.
§ 541.060(a)(1), (2), (5) (West 2009). The jury found that American National violated this duty.
       The evidence at trial showed that Holland’s counsel’s letter requested permission to settle
when no settlement offer had been made. At the time of the letter, Holland represented that she
did not intend to seek PIP or UIM benefits. In June 2016, American National had no information
by which it could evaluate its subrogation rights, if any, against Nguyen and Allstate. The purpose
of the consent-to-settlement letter in an UIM case is to protect the insurance company’s
subrogation rights. See Easley v. Members Ins. Group, 828 S.W.2d 39, 40 (Tex. App.—Houston



                                                 11
[14th Dist.] 1991, no writ). As a result, the letter does not misrepresent Holland’s rights or policy
provisions and does not constitute, in this context, an unfair settlement practice. See TEX. INS.
CODE ANN. §§ 541.060, 541.061. Furthermore, the evidence demonstrated that American National
gave consent to settle within two days once it was presented with an actual settlement offer.
Thereafter, Holland settled with Nguyen and Allstate and filed suit for her UIM benefits as required
by Brainard. Because American National has no duty to pay Holland’s UIM benefits until
Nguyen’s liability and Holland’s damages are determined in a court proceeding, the June 2016
letter was sent before American National had a duty to pay. Consequently, at the time of the letter,
American National had no duty to settle Holland’s UIM claim and could not breach its duty
regarding payment of UIM benefits. See Progressive Cty. Mut. Ins. Co., 177 S.W.3d at 922;
Brainard, 216 S.W.3d at 818; In re Allstate Cty. Mut. Ins. Co., 447 S.W.3d at 501. Therefore,
American National could not have engaged in an unfair or deceptive settlement practice or violated
its duty of good faith and fair dealing at the time of the June 2016 letter.
         Based on the foregoing, we determine there was no evidence to support the jury’s findings
that American National engaged in a deceptive or unfair act or practice or that American National
violated its duty of good faith and fair dealing. See City of Keller, 168 S.W.3d at 822. Because
the evidence is legally insufficient, we sustain American National’s second and third issues and
need not address its remaining issues.2 See TEX. R. APP. 47.1.


                                                    DISPOSITION
         Having sustained American National’s first issue, we reverse the trial court’s order denying
the motion to sever the extracontractual claims and remand the contractual UIM claim for a new
trial. Because we sustained American National’s second and third issues, we reverse the trial
court’s judgment and render a take nothing judgment in favor of American National on Holland’s
claims of a deceptive or unfair act or practice and any violation of the duty of good faith and fair
dealing.




         2
           In its fourth issue, American National contends the evidence is insufficient to support the jury’s finding that
it engaged in any deceptive practice “knowingly.” In its fifth and sixth issues, American National argues the trial
court erred in awarding additional damages and attorneys’ fees because no actual damages were found in relation to
the extracontractual claims.


                                                           12
                                                                JAMES T. WORTHEN
                                                                   Chief Justice



Opinion delivered March 20, 2019.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)



                                                         13
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                           MARCH 20, 2019


                                         NO. 12-18-00141-CV


        AMERICAN NATIONAL COUNTY MUTUAL INSURANCE COMPANY,
                              Appellant
                                 V.
                           TINA HOLLAND,
                               Appellee


                                  Appeal from the 4th District Court
                            of Rusk County, Texas (Tr.Ct.No. 2016-361)

                         THIS CAUSE came to be heard on the oral arguments, appellate record and
the briefs filed herein, and the same being considered, because it is the opinion of this court that
there was error in the judgment of the court below, it is ORDERED, ADJUDGED and DECREED
by this court that the trial court’s order denying the motion to sever the extracontractual claims be
reversed and the contractual UIM portion of the case be remanded for a new trial. It is further
ORDERED, ADJUDGED and DECREED that the trial court’s judgment be reversed and a take
nothing judgment be rendered in favor of AMERICAN NATIONAL COUNTY MUTUAL
INSURANCE COMPANY on Tina Holland’s claims of a deceptive or unfair act or practice and
any violation of the duty of good faith and fair dealing. All costs of this appeal are hereby adjudged
against the Appellee, TINA HOLLAND, in accordance with the opinion of this court; and that
this decision be certified to the court below for observance.
                     James T. Worthen, Chief Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
