                                   NO. 07-03-0330-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL E

                                  OCTOBER 28, 2004

                         ______________________________


                IN RE TEACHERS INSURANCE COMPANY, RELATOR
                       _______________________________

Before JOHNSON, C.J., and REAVIS, J. and BOYD, S.J.1


                               MEMORANDUM OPINION


       Teachers Insurance Company seeks issuance of a writ of mandamus directing the

trial judge to vacate that part of his order denying Teachers’ motion to sever an uninsured

motorist claim from the negligence action against the uninsured motorist. We deny the

petition.


                                     BACKGROUND


       Real Party in Interest Jan McDonald filed suit alleging that he and his automobile

were in collision with a vehicle being driven by Diana Lane in the course and scope of her

employment with City Church Outreach Ministries (“the Church”). McDonald alleged that

Lane and the Church were negligent in causing the collision and were not covered by

       1
      John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment.
liability insurance. McDonald was covered by an uninsured/underinsured motorist (UIM)

policy issued by Teachers which provided that, “[Teachers] will pay damages which a

covered person is legally entitled to recover from the owner or operator of an uninsured

motor vehicle because of bodily injury . . . or property damage caused by an accident.”


       McDonald sued Lane and the Church (“the underlying negligence claim”), then

amended his petition to add Teachers as a party. He claimed that Teachers should be

liable to him under its UIM policy. McDonald also alleged that Teachers violated Article

21.55 of the Texas Insurance Code by failing to accept or reject his claim and delaying

payment.


       Teachers answered and moved the trial court to sever and abate McDonald’s entire

claim against Teachers until resolution of the underlying negligence action. The trial court

granted Teachers’ motion regarding the Article 21.55 claim, see In re Trinity Universal Ins.

Co., 64 S.W.3d 463 (Tex.App.–Amarillo 2001, orig. proceeding), but denied the request

to sever and abate the UIM claim. Teachers then filed the instant proceeding seeking

issuance of a writ of mandamus directing the trial court to sever the UIM claim from the

underlying negligence action.


                                       MANDAMUS


      A writ of mandamus is an extraordinary remedy that will issue only (1) to correct a

clear abuse of discretion or the violation of a duty imposed by law, and (2) when there is

no other adequate remedy at law. See Canadian Helicopters Ltd. v. Wittig, 876 S.W.2d



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304, 305 (Tex. 1994). The party seeking mandamus must prove both elements before the

writ will issue. Id.


       To establish the first requirement for mandamus relief, an abuse of discretion, the

complaining party must demonstrate that the trial court acted unreasonably, arbitrarily, or

without reference to guiding rules and principles. Downer v. Aquamarine Operators, Inc.,

701 S.W.2d 238, 241-42 (Tex. 1985).


       If a relator establishes that an abuse of discretion occurred, to be entitled to

mandamus relief, a relator must also demonstrate the second of the two-part requirement

for mandamus: that he or she has no adequate remedy at law to redress the harm. Walker

v. Packer, 827 S.W.2d 833, 840-42 (Tex. 1992). Merely showing reversible error will not

satisfy this requirement. In re Masonite Corp., 997 S.W.2d 194, 199 (Tex. 1999). This

second requirement is met only when a party is in danger of permanently losing substantial

rights if the ruling of the trial court is allowed to stand. See Canadian Helicopters Ltd., 876

S.W.2d at 306. The requirement is not satisfied by merely showing that appeal would

involve more expense or delay than obtaining a writ of mandamus. See CSR Ltd. v. Link,

925 S.W.2d 591, 596 (Tex. 1996).


                                   ADEQUATE REMEDY


       In addressing the second requirement for issuance of mandamus, that it has no

adequate remedy at law to redress the harm, Teachers does not provide authority, but

references parts of its brief in which it argues that the trial court abused its discretion in

failing to sever the UIM and underlying negligence claims.           In asserting that it will

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permanently lose substantial rights and will have no adequate remedy by appeal absent

issuance of mandamus, Teachers, in substance, urges that (1) the UIM and underlying

negligence claims are not substantially interwoven; (2) because McDonald has not first

obtained a settlement or final judgment against Lane and Church, he is not “legally entitled

to recover” under the UIM policy, and Teachers will have to endure the expense and effort

of preparing and defending the UIM claim which might be disposed of by a prior trial of the

negligence claim; and (3) Teachers has a right to defend the claim against it without

introduction of evidence of the presence or absence of liability insurance.


       Teachers’ assertion that the claims are substantially interwoven relates to whether

the trial court abused its discretion in failing to sever the claims, not whether Teachers will

have an adequate remedy by appeal. See Guaranty Fed. Sav. Bank v. Horseshoe

Operating Co., 793 S.W.2d 652, 658 (Tex. 1990). We do not consider this assertion in

connection with whether Teachers has an adequate remedy by appeal.


       Teachers’ second contention is, in effect, that McDonald’s UIM claim is not ripe for

adjudication because he has not obtained a final judgment or settlement from an uninsured

motorist and, therefore, Teachers will be forced to incur expenses in defending against a

claim that might not mature because McDonald might not prevail in his negligence

assertions against Lane and the Church. Teachers’ argument fails for two reasons. First,

the UIM policy does not require that McDonald must “ripen” his claim by obtaining a

judgment against an uninsured motorist before pursuing a UIM claim against Teachers; it

provides that Teachers will be liable for damages which a covered person is legally entitled

to recover from the owner or operator of an uninsured motor vehicle. The phrase “legally

                                              -4-
entitled to recover,” as used in UIM policies, means that the insured must be able to show

fault on the part of the uninsured motorist and the extent of the resulting damages. See

Franco v. Allstate Ins. Co., 505 S.W.2d 789, 792 (Tex. 1974). This legal entitlement can

be established in either a direct action against the UIM carrier or in a suit against the

uninsured motorist. See Id.; State Farm Mut. Auto. Ins. Co. v. Matlock, 462 S.W.2d 277,

278 (Tex. 1970). The second reason is that the expense of defending McDonald’s suit and

prosecuting an appeal, if necessary, is not a permanent loss of substantial rights such as

warrants issuance of mandamus.          See CSR Ltd., 925 S.W.2d at 956; Canadian

Helicopters Ltd., 876 S.W.2d at 306.


       Teachers references Henson v. Southern Farm Bureau Cas. Ins. Co., 17 S.W.3d

652 (Tex. 2000) in regard to its argument that McDonald’s claim is not ripe because a UIM

claim does not accrue until such time as the third party tortfeasor’s liability and the amount

of damages have been established by trial. In Henson, however, the issue was not

whether suing the UIM insurer and the uninsured/underinsured tortfeasor in the same suit

would result in the UIM carrier’s permanent loss of substantial rights. The issue was when

a UIM claim accrued for purposes of calculating interest. We do not consider Henson to

control the issue before us.


       Teachers next contends that allowing the underlying negligence claim and the UIM

claim to be tried together will deny it an adequate remedy by appeal because such a trial

will necessarily require proof of the presence or absence of liability insurance. Teachers,

in a manner, references In re Koehn, 86 S.W.3d 363 (Tex.App.–Texarkana 2002, orig.

proceeding). Koehn, however, involved assertions by the allegedly underinsured negligent

                                             -5-
tortfeasor that trying the UIM claim and the negligence claim together would prejudice the

tortfeasor because the presence and amount of the tortfeasor’s liability insurance would

be introduced into evidence. See TEX . R. EVID . 411. In the matter before us there is no

claim by Lane or the Church that they will be prejudiced by evidence that they had no, or

insufficient, liability insurance to cover McDonald’s damages from the collision. The issue

presented in Koehn is dissimilar to that presented by Teachers.


      Finally, Teachers urges that trial of the UIM and underlying negligence claims

together will prejudice Teachers because the existence of insurance will be injected into

the case, the jury will be more likely to find Lane and the Church negligent and award

higher damages, and the likelihood that Teachers’ UIM liability would be triggered will be

increased. Whatever the merits of Teachers’ argument, we consider it to have been

foreclosed by the Supreme Court. See Franco, 505 S.W.2d at 792; Matlock, 462 S.W.2d

at 278.


      We conclude that Teachers has not met its burden to prove that trial of the UIM

claim and the negligence claim in the same proceeding would deny it an adequate remedy

at law. Our conclusion makes it unnecessary to address Teachers’ claim that the trial court

abused its discretion in refusing to sever the UIM claim from the underlying negligence

claim. See TEX . R. APP. P. 47.1.


      The petition for writ of mandamus is denied.


                                                       Phil Johnson
                                                       Chief Justice


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