      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                     NO. 03-12-00465-CV



                In re American National County Mutual Insurance Company


                       ORIGINAL PROCEEDING FROM HAYS COUNTY



                                         OPINION


               Relator American National County Mutual Insurance Company seeks a writ of

mandamus compelling the trial court to (1) vacate its order denying American National’s motion

for severance and abatement and (2) enter an order severing and abating real party in interest

Connie Cole’s extra-contractual claims until her breach of contract claim has been resolved. We

conditionally grant the writ.


                                       BACKGROUND

               The lawsuit underlying this original proceeding arises from an automobile accident

that occurred on November 24, 2009, between Cole and another driver, Estelline Bullock. Cole sued

Bullock and eventually settled her claims for the limits of Bullock’s insurance policy, $100,000.

Cole then made a claim under the uninsured/underinsured provision (“UIM”) of her own policy with

American National. After rejecting American National’s offer to settle her UIM claim for $5,000,

Cole sued American National for breach of contract, alleging that American National failed to pay

her covered UIM claim. Cole also brought extra-contractual claims for common-law bad faith and
insurance code violations.1 American National filed a traditional motion for summary judgment and

in the alternative, a motion for severance and abatement. Specifically, American National requested

that the trial court sever Cole’s extra-contractual claims, place those claims into a separate cause,

and abate that cause pending final resolution of Cole’s claim for breach of contract. The trial court

denied the motions and this mandamus proceeding followed.


                                    STANDARD OF REVIEW

                Mandamus will issue only to correct a clear abuse of discretion when there is no

adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004). A

trial court abuses its discretion when it reaches a decision so arbitrary and unreasonable that it

amounts to clear and prejudicial error of law. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.


        1
           Cole’s common-law bad faith claims are premised on allegations that American National
failed to “effectuate a prompt, fair, and equitable settlement of her [UIM] claim.” Cole’s insurance
code violations are premised on allegations that American National failed to “attempt to effectuate
a prompt, fair, and equitable settlement of Plaintiff’s claims” and engaged in “unfair claim settlement
practices.” Specifically, Cole alleges that American National violated chapter 451 of the insurance
code by: (1) failing to attempt in good faith to effectuate a prompt, fair, and equitable settlement of
a claim with respect to which the insurer’s liability has become reasonably clear; (2) refusing, failing,
or unreasonably delaying an offer of settlement 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; and/or (3) delaying or refusing settlement of a claim
solely because there is other insurance of a different type available to satisfy all or part of the loss
forming the basis of the claim. Cole alleges that American National violated chapter 542 by: (1) not
attempting in good faith to effectuate prompt, fair, and equitable settlements of claims submitted in
which liability has become reasonably clear; (2) compelling policyholders to initiate suits to recover
amounts due under its policies by offering substantially less than the amounts ultimately recovered
in suits brought by them; and/or (3) failing to promptly pay on a claim within fifteen business days
after a policyholder submits all proof of loss documentation, within five business days after a
policyholder satisfies all requests for additional documentation, or, failing to pay on a claim
altogether within sixty (60) days of receiving all documentation required to process and pay a claim.


                                                   2
1992); see also Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985). With

respect to resolution of factual issues or matters committed to the trial court’s discretion, we may not

substitute our judgment for that of the trial court. Walker, 827 S.W.2d at 840. The relator must

establish that the trial court reasonably could have reached only one decision. Id. On the other hand,

the trial court has no discretion in determining what the law is or applying the law to the facts. Id.

Thus, the trial court abuses its discretion when it fails to analyze the law correctly. Id.


                                            DISCUSSION


Severance

                A severance divides a lawsuit into separate and independent causes, which then

proceed to individual judgments. See Tex. R. Civ. P. 41 (“Any claim against a party may be severed

and proceeded with separately.”). Severance is appropriate if: (1) the controversy involves more

than one cause of action, (2) the severed claim is one that could be asserted independently in

a separate lawsuit, and (3) the severed actions are not so interwoven with the other claims that

they involve the same facts and issues. Liberty Nat’l Fire Ins. Co. v. Akin, 927 S.W.2d 627, 629

(Tex. 1996). The controlling reasons for a severance are to do justice, avoid prejudice, and further

convenience. Guaranty Fed. v. Horseshoe Operating, 793 S.W.2d 652, 658 (Tex. 1990).

                In the context of insurance coverage cases, it is well established that extra-contractual

claims, such as bad faith claims, and contract claims related to insurance coverage are by their

nature, independent claims that are subject to severance. See Akin, 927 S.W.3d at 629 (“Insurance

coverage claims and bad faith claims are by their nature independent.”); In re Allstate Ins. Co.,

232 S.W.3d 340, 343 (Tex. App.—Tyler 2007, orig. proceeding) (noting that extra-contractual

                                                   3
claims can be severed from breach of contract claims in insurance cases); U.S. Fire Ins. Co. v.

Millard, 847 S.W.2d 668, 672-73 (Tex. App.—Houston 1993, orig. proceeding) (“A breach of an

insurance contract claim is separate and distinct from bad faith, [i]nsurance [c]ode or [deceptive

trade practices act] causes of action.”). Thus, the issue in this case is not whether the trial court

could have ordered severance of Cole’s extra-contractual claims, but whether the trial court was

required to do so. American National argues that because it made an offer to settle Cole’s UIM

claim, trying Cole’s breach of contract claim together with her extra-contractual claims would unduly

prejudice American National. Consequently, American National argues, the trial court abused its

discretion in failing to sever Cole’s extra-contractual claims.

               A trial court has broad discretion in determining whether to sever a lawsuit into

separate suits. Akin, 927 S.W.2d at 629. However, that discretion is not unlimited. In re General

Agents Ins. Co. of Am., Inc., 254 S.W.3d 670, 673 (Tex. App.—Houston [14th Dist.] 2008, orig.

proceeding). A trial court’s refusal to order a severance constitutes an abuse of discretion “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 the legal rights of the parties will not be prejudiced thereby.” See Womack v. Berry, 291 S.W.2d

677, 682-83 (Tex. 1956) (orig. proceeding); In re Hochheim Prairie Farm Mut. Ins. Ass’n, 296

S.W.3d 907, 912 (Tex. App.—Corpus Christi 2009, orig. proceeding); In re General Agents Ins. Co.

of Am., 254 S.W.3d at 673-74.

               In Liberty National Fire Insurance Company v. Akin, the Texas Supreme Court was

confronted with the same issue presented in this case—whether the trial court abused its discretion



                                                  4
when it denied the insurer’s motion to sever and abate the insured’s bad faith claim pending a

determination on the insured’s breach of contract claim. 927 S.W.2d at 628. While the supreme

court held that severance was not required in that case, it recognized that severance of extra-

contractual claims from contractual claims may be necessary in certain cases. Id. at 630. The

supreme court explained:

        A severance may nevertheless be necessary in some bad faith cases. A trial court will
        undoubtably confront instances in which evidence admissible only on the bad faith
        claim would prejudice the insurer to such an extent that a fair trial on the contract
        claim would become unlikely. One example would be when the insurer has made a
        settlement offer on the disputed contract claim. As we have noted, some courts have
        concluded that the insurer would be unfairly prejudiced by having to defend the
        contract claim at the same time and before the same jury that would consider
        evidence that the insurer had offered to settle the entire claim. While we concur with
        these decisions, we hasten to add that evidence of this sort simply does not exist in
        this case. In the absence of a settlement offer on the entire contract claim, or other
        compelling circumstances, severance is not required.


Id. (citations omitted).

                Following Akin, a majority of intermediate courts of appeals have concluded that it

is an abuse of discretion for a trial court to refuse to grant a severance of contractual claims from

extra-contractual claims when an offer of settlement has been made by the insurer. See In re Allstate

Cnty. Mut. Ins. Co., 352 S.W.3d 277, 278 (Tex. App.—Houston [14th Dist.] 2011, orig. proceeding)

(citing State Farm Mut. Auto Ins. Co. v. Wilborn, 835 S.W.2d 260, 262 (Tex. App.—Houston

[14th Dist.] 1992, orig. proceeding)); In re Miller, 202 S.W.3d 922, 926 (Tex. App.—Tyler 2006,

orig. proceeding); In re Trinity Universal Ins. Co., 64 S.W.3d 463, 468 (Tex. App.—Amarillo 2001,

orig. proceeding); Texas Farmers Ins. Co. v. Stem, 927 S.W.2d 76, 80 (Tex. App.—Waco 1996, orig.

proceeding); see also In re State Farm Mut. Auto Ins. Co., No. 08-12-176-CV, 2012 Tex. App.

                                                  5
LEXIS 6537, at *5-6 (Tex. App.—El Paso Aug. 8, 2012, orig. proceeding); In re Allstate Prop. &

Relator Cas. Ins. Co., No. 02-07-141-CV, 2007 Tex. App. LEXIS 4328, at *2-3 (Tex. App.—Fort

Worth May 30, 2007, orig. proceeding) (mem. op.); In re Progressive Cnty. Mut. Ins. Co., No.

09-07-00011-CV, 2007 Tex. App. LEXIS 889, at *1-2 (Tex. App.—Beaumont Feb. 8, 2007, orig.

proceeding) (mem. op.); In re Maryland Cas. Co., No. 04-06-413-CV, 2006 Tex. App. LEXIS 11209,

at *4-5 (Tex. App.—San Antonio Aug. 2, 2006, orig. proceeding) (mem. op.); but see Allstate Ins.

Co. v. Evins, 894 S.W.2d 847, 850 (Tex. App.—Corpus Christi 1995, orig. proceeding) (denial of

motion to sever contractual and extra-contractual claims was proper because it was assumed that jury

would follow limiting instruction to limit their consideration of settlement offers in determining bad

faith claims). In reaching this conclusion, many of these courts of appeals have explained that, when

the insurer has made an offer of settlement on a disputed contract claim, a court’s refusal to sever

contractual claims from extra-contractual claims creates an irreconcilable conflict between the

parties’ competing interests at trial. See, e.g., In re Allstate Ins. Co., 232 S.W.3d at 343; Millard,

847 S.W.2d at 673; Wilborn, 835 S.W.2d at 261; see also In re State Farm Mut. Auto Ins. Co., 2012

Tex. App. LEXIS 6537, at *6-7 (“Absent severance, an insurer is presented with a ‘Catch-22’ in that

its decision to admit or exclude evidence of a settlement offer jeopardizes the successful defense of

the other claim.”). More specifically, a conflict arises from the parties’ competing interests in

excluding and admitting evidence of the insurer’s offer of settlement, and only a severance can

adequately protect their rights. See, e.g., Wilborn, 835 S.W.2d at 261-62.

               Under rule 408 of the Texas Rules of Evidence, settlement offers are not admissible

to prove liability for, or invalidity of, the claim or its amount, but may be admissible for another



                                                  6
purpose. Tex. R. Evid. 408. This exclusion of settlement offers promotes the settlement of claims

and recognizes that “such evidence does not represent a party’s actual position, but is an amount he

is willing to give or take to avoid the expense and annoyance of litigation.” Wilborn, 835 S.W.2d

at 261. When an insurer has made an offer to settle a disputed contract claim, a conflict arises

between the parties’ right to introduce the settlement offer in trying the bad faith claim and the

insurer’s right to exclude the evidence in the defense of the contract claims. See In re Allstate Ins. Co.,

232 S.W.3d at 343 (citing Millard, 847 S.W.2d at 673). On one hand, the exclusion of the settlement

offer in trial would unfairly deny the insured the use of the evidence to prove essential elements of

the bad faith claim. Millard, 847 S.W.2d at 673. At the same time, admission of the settlement offer

would deny the insurer the right to exclude evidence unfairly implicating that it has admitted liability

on the contract claims. Id. Accordingly, in this situation, the trial court can only reach one decision

which adequately protects the parties’ rights and that is to order severance of the two types of claims.

See, e.g., Wilborn, 835 S.W.2d at 262.

                Based on the record before us, there can be no dispute that American National offered

to settle Cole’s entire UIM claim, and Cole does not claim otherwise. Because we agree that severance

is necessary to avoid the unfair dilemma that American National would face in simultaneously

defending Cole’s contractual and extra-contractual claims, we conclude that the trial court abused

its discretion in denying American National’s motion for severance. See In re Republic Lloyds, 104

S.W.3d 354, 358 (Tex. App.—Houston [14th Dist.] 2003, orig. proceeding) (“Thus, pursuant to

Akin, a severance is required when the insurer has made a settlement offer on the entire breach of

contract claim.”).



                                                    7
Abatement

                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 Cnty. Mut., 209 S.W.3d 742, 746 (Tex. App.—Tyler

2006, orig. proceeding). In this case, American National contends that the trial court abused its

discretion in failing to abate Cole’s extra-contractual claims because, according to American

National, both severance and abatement are required whenever “a plaintiff has filed a breach of

contract claim as well as extra-contractual claims, and a settlement offer has been made.” American

National argues that absent an abatement it will “be put through the effort and expense of answering

discovery, producing documents and witnesses, engaging experts and preparing for trial on issues

that are not ripe for litigation and may be rendered moot by the trial.” In response, Cole argues that

the trial court did not abuse its discretion in failing to abate her extra-contractual claims. Specifically,

Cole argues that there is no bright-line rule requiring the abatement of extra-contractual claims in

insurance cases, even when the insurer has made an offer of settlement, and there is no necessity for

the trial court to abate her extra-contractual claims in this case.

                In support of her argument, Cole relies on the Texas Supreme Court’s decision in

Akin. In Akin, the supreme court rejected the assertion that a separate trial on extra-contractual

claims required, as a matter of law, that the court also abate those extra-contractual claims pending

a final judgment on the contract claims. 927 S.W.2d at 630-31. The supreme court explained:


        [W]e disagree with Liberty National’s argument that our decision in Stoker mandates
        that the trial court should abate a severed bad faith claim until it renders a final
        judgment and perhaps all appeals have been exhausted on the contract claim. While
        Stoker held that a judgment for the insurer on the coverage claim prohibits recovery



                                                     8
       premised only on bad faith denial of a claim, it does not necessarily bar all claims for
       bad faith.


Id. at 631. Based on this language, we agree that the abatement of extra-contractual claims is not

necessarily required, as a matter of law, in every insurance case where the insurer has offered to

settle the insured’s contract claim. But see In re Allstate Cnty. Mut. Ins. Co., 352 S.W.3d at 278 (“In

cases in which contractual and extra-contractual claims are being pursued simultaneously, this court

repeatedly has held that extra-contractual claims must be severed and abated when the insurer has

made a settlement offer on the contract claim.”).

               However, consistent with Akin, a number of our sister courts have held that abatement

of extra-contractual 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. See Millard,

847 S.W.2d at 673 (noting that abatement was necessary because insured’s bad faith, insurance code,

and deceptive trade practices act claims depended on outcome of contractual cause of action); see

In re Progressive Cnty. Mut. Ins. Co., 2007 Tex. App. LEXIS 889, at *3 (“Abatement of the bad

faith claim necessarily accompanies severance because the scope of permissible discovery differs

in the two types of claims and without abatement the parties will be put to the effort and expense of

conducting discovery on claims that may be disposed of in a previous trial.”); In re Allstate Prop.

& Relator Cas. Co., 2007 Tex. App. LEXIS 4328, at *3 (holding that abatement was required, noting

that “the court, as well as the parties, would be put to the expense and effort of preparing and trying

extracontractual claims that may be disposed of in the resolution of the breach of contract claim”).

In these cases, the courts of appeals concluded that abatement was necessary because a determination



                                                  9
on the contract claim in favor of the insurer would have negated the insured’s extra-contractual

claims. See, e.g., Millard, 847 S.W.2d at 673. Without 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.; see Akin, 927 S.W.2d at 629 (“[I]n most circumstances, an insured may

not prevail on a bad faith claim without first showing that the insurer breached the contract.”).

                In addition, in the context of UIM cases specifically, several courts of appeals have

recently concluded that abatement of extra-contractual claims is necessary as a consequence of

the unique hurdles faced by plaintiffs asserting UIM contract claims. See In re United Fire Lloyds,

327 S.W.3d 250, 256 (Tex. App.—San Antonio 2010, orig. proceeding) (discussing Brainard v.

Trinity Universal Ins. Co., 216 S.W.3d 809, 818 (Tex. 2006)); see also In re Old Am. Cnty. Mut.

Fire Ins. Co., No. 13-11-00412-CV, 2012 Tex. App. LEXIS 1293, at *12-13 (Tex. App.—Corpus

Christi Feb. 16, 2012, orig. proceeding) (mem. op.) (following In re United Fire Lloyds). In a UIM

case, “[t]he UIM insurer is obligated to pay damages which the insured is ‘legally entitled to recover’

from the underinsured motorist.”2 Brainard v. Trinity Universal Ins. Co., 216 S.W.3d at 818; see

In re United Fire Lloyds, 327 S.W.3d at 256. In Brainard v. Trinity Universal Insurance Company,

the supreme court determined that this language means that “the UIM insurer is under no contractual

duty to pay UIM benefits until the insured obtains a judgment establishing the liability and


       2
           The Texas Insurance Code provides that UIM coverage:

       must provide for payment to the insured of all amounts that the insured is legally
       entitled to recover as damages from owners or operators of underinsured vehicles
       because of bodily injury or property damage, not to exceed the limit specified in the
       insurance policy, and reduced by the amount recovered or recoverable from the
       insurer of the underinsured motor vehicle.

Tex. Ins. Code Ann. § 1952.106 (West 2009) (emphasis added).

                                                  10
underinsured status of the other motorist. . . . Neither requesting UIM benefits nor filing suit against

the insurer triggers a contractual duty to pay.” 216 S.W.3d at 818. Thus, a UIM contract is unlike

many first-party insurance contracts because, according to its terms, benefits are conditioned upon

the insured’s legal entitlement to receive damages from a third party. Id.

                Though Brainard involved a determination as to when presentment of a contract

claim was made in order to determine when a party was entitled to attorney’s fees, the San Antonio

court of appeals subsequently applied the rationale presented in Brainard to the issue of abatement.

See id.; In re United Fire Lloyds, 327 S.W.3d at 253, 256. In In re United Fire Lloyds, the San

Antonio court of appeals concluded that, given the clear holding in Brainard, the insurer should not

be required to incur litigation expenses on claims that could be rendered moot by the portion of the

trial related to UIM benefits and may not have even yet accrued. 327 S.W.3d at 253, 256 (concluding

that insured’s bad faith claims based on insurance code violations, including failure to properly

investigate and evaluate claim, could be rendered moot by portion of the trial related to UIM

benefits); see also In re Old Am. Cnty. Mut. Fire Ins. Co., 2012 Tex. App. LEXIS 1293, at *13;

but see In re State Farm Mut. Auto. Ins. Co., 2012 Tex. App. LEXIS 6537, at *20 (distinguishing

UIM case from In re United Fire Lloyds, explaining that there was no dispute that uninsured motorist

was negligent and underinsured). Accordingly, the court held that abatement of the insured’s extra-

contractual claims was required in order to “do justice, avoid prejudice, and further convenience.”

In re United Fire Lloyds, 327 S.W.3d at 265. In light of the supreme court’s holding in Brainard,

we agree that if a decision rendered in favor of American National on Cole’s contract claim would

render her extra-contractual claims moot, the trial court abused its discretion in refusing to abate her

extra-contractual claims.

                                                  11
                In this case, Cole contends an abatement is not necessary in order to prevent the parties

from incurring unnecessary litigation expenses. Cole argues that, unlike most cases involving

abatement of extra-contractual claims, at least some of her extra-contractual claims against American

National are not premised on a finding that American National wrongfully denied her claim. Instead,

according to Cole, these claims are related to American National’s conduct in handling her claim

and consequently, would not be rendered moot if she did not prevail on her contract claim. Upon

reviewing Cole’s pleadings in this case, we disagree.

                Cole’s pleadings reveal that she has asserted, in essence, that American National

breached its common-law duty of good faith and fair dealing and committed insurance code

violations by failing to offer a prompt and fair settlement of her UIM claim. However, any duty

by an insurer to its insured, common-law or statutory, necessarily arises from the contractual

relationship between the parties. See also In re Miller, 202 S.W.3d at 926 (rejecting argument that

insurance code must be construed to allow insured to pursue bad faith claims before adjudicating

UIM claim and explaining “[N]o matter how liberally we might construe an insurance code provision,

a contract underlies any cause of action involving insurance. This is an inescapable fact.”). An

insurer obviously has no obligation to settle a claim that it is not contractually obligated to pay. See

Brainard, 216 S.W.3d at 818 (“When there is no contractual duty to pay, there is no just amount

owed.”). Thus, an insurer generally cannot be liable on bad faith claims arising from its denial or

failure to investigate claims that it has no duty to pay. See Progressive Cnty. Mut. Ins. Co. v. Boyd,

177 S.W.3d 919, 922 (Tex. 2005) (concluding that bad faith claims for improper denial and failure

to investigate were negated by determination in breach of contract claim that there was no coverage);


                                                   12
see also Weir v. Twin City Fire Ins. Co., 622 F. Supp. 483, 486 (S.D. Tex. 2009) (concluding that

if there is no contractual duty to pay UIM claim then insurer cannot be in bad faith for not paying

or for not performing proper investigation). Similarly, it follows that a UIM insurer generally cannot

be liable for insurance code violations related to delays in payment, such as delays in making a

timely offer, on claims that it has no duty to pay. See Boyd, 177 S.W.3d at 922 (holding that there

can be no liability under article 21.55, now chapter 542 of the insurance code, if insurance claim is

not covered by policy); see also Weir, 622 F. Supp. at 486 (concluding that if there is no contractual

duty to pay UIM claim then insured’s bad faith claim for denial or postponing payment fails).

Therefore, in this case, all of Cole’s extra-contractual claims are premised on a contractual obligation

to pay her UIM claim, and Cole does not allege that she has suffered any damages unrelated and

independent of her contract claim. See Boyd, 177 S.W.3d at 922 (noting that supreme court has left

open possibility that insurer’s denial of claim it was not obligated to pay might nevertheless be

in bad faith if its conduct was extreme and produced damages unrelated to and independent of

policy claim). Accordingly, all of Cole’s extra-contractual claims would be rendered moot upon a

determination that American National was not contractually obligated to pay her UIM claim.

                To prevail on her extra-contractual claims against American National, Cole must

necessarily demonstrate that American National was contractually obligated to pay her UIM claim.

To do this, Cole must first prove that the other driver negligently caused the accident and that her

recoverable damages exceed the driver’s liability insurance.3 Under these circumstances, American

       3
          Though it is undisputed that Cole accepted the full amount of liability insurance from the
other driver, this settlement does not establish UIM coverage. See Brainard v. Trinity Universal
Ins. Co., 216 S.W.3d 809, 818 (Tex. 2006) (explaining in UIM case where other driver’s insurance

                                                  13
National should not be required to put forth the effort and expense of conducting discovery,

preparing for trial, and conducting voir dire on claims that would be rendered moot by a determination

against Cole on her UIM contract claim. See In re United Fire Lloyds, 327 S.W.3d at 253, 256. We

conclude that the trial court abused its discretion in failing to abate Cole’s contract claim from her

extra-contractual claims until her contract claim is resolved.


                                          CONCLUSION

               We conclude that the trial court abused its discretion in denying American National’s

motion for severance and abatement of Cole’s extra-contractual claims. If mandamus relief is not

granted, American National would lose substantial rights related to the exclusion of the settlement

offer as evidence at trial and by being required to prepare and try claims that may be rendered moot.

See Millard, 847 S.W.2d at 675. Thus, American National does not have an adequate remedy by

appeal. See id. Accordingly, we conditionally grant the writ of mandamus. The trial court is ordered

to vacate that portion of its June 4, 2012 order denying American National’s alternative motion for

severance and abatement. Further, the trial court is ordered to grant American National’s alternative

motion for severance and abatement, severing and abating Cole’s extra-contractual claims pending




tendered policy limit that “neither a settlement nor an admission of liability from the tortfeasor
establishes UIM coverage”); but see In re State Farm Mut. Auto. Ins. Co., No. 08-12-176-CV, 2012
Tex. App. LEXIS 6537, at *20 (Tex. App.—El Paso Aug. 8, 2012, orig. proceeding) (concluding that
because there was no dispute that the insured had reached policy limits settlement with underinsured
motorist, insured had proven negligence and underinsured status of other motorist). This is because
a jury could always still find that the other motorist was not at fault or award damages that do not
exceed the tortfeasor’s liability insurance. Brainard, 216 S.W.3d at 818.

                                                 14
resolution of the breach of contract claim. The writ will issue only if the trial court fails to comply

within fourteen days.



                                               __________________________________________

                                               Diane M. Henson, Justice

Before Justices Puryear, Pemberton and Henson

Filed: September 25, 2012




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