IN THE SUPREME COURT OF TEXAS






IN THE SUPREME COURT OF TEXAS
 
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No. 04-0427
════════════
 
State Farm Mutual Automobile 
Insurance Company, Petitioner,
 
v.
 
Teresa Nickerson, 
Respondent
 
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On Petition for Review from the
Court of Appeals for the Sixth District of 
Texas
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Argued April 14, 
2005
 
 
Chief Justice Jefferson delivered the 
opinion of the Court.
Justice O’Neill did not participate in 
the decision.
The issue in 
this case is whether an insured can recover attorney’s fees under Chapter 38 of 
the Civil Practice and Remedies Code from her underinsured motorist (UIM) 
insurer.
Teresa 
Nickerson was injured in an automobile collision with Calvin Christopher. 
Nickerson sued Christopher, but she released her claims against him after 
accepting a $25,000 payment representing the limits of Christopher’s insurance 
policy. Nickerson also accepted a $10,000 payment of personal injury protection 
(PIP) benefits from State Farm. Believing her damages to be greater than 
Christopher’s policy limits, Nickerson sued State Farm to recover under the UIM 
provision of her policy, which had a $300,000 limit. At trial, Nickerson sought 
to establish Christopher’s liability and recover attorney’s fees under Texas 
Civil Practice and Remedies Code subsections 38.001 and 38.002. 
On November 
13, 2002, a jury found that Christopher’s negligence proximately caused 
Nickerson’s damages and awarded her $225,000 in actual damages and $46,500 in 
attorney’s fees incurred during trial. On December 4, 2002, State Farm paid 
Nickerson $191,294.52, representing the actual damages ($225,000), minus offsets 
($35,000), plus interest on $190,000 at a rate of ten percent simple interest 
from November 13, 2002, through December 4, 2002. The trial court signed a final 
judgment on December 6, 2002, finding that Nickerson was entitled to actual 
damages of $225,000 plus prejudgment interest of $181,849.32 accruing from the 
date suit was filed until the day prior to judgment. Based on these findings it 
awarded Nickerson $300,000, the limit of her UIM policy. Additionally, the trial 
court awarded Nickerson $46,500 in attorney’s fees and postjudgment interest. 

On appeal, 
State Farm initially challenged both the attorney’s fees and prejudgment 
interest awards, but later withdrew the prejudgment interest issue, and on 
November 18, 2004, paid the remainder of the UIM policy limit of $300,000. The 
court of appeals affirmed the trial court’s judgment. 130 S.W.3d 487. 
The only 
issue on appeal to this Court is whether the attorney’s fee award was proper. In 
Brainard v. Trinity Universal Insurance Company, also issued today, we 
hold that an insured may recover attorney’s fees under Chapter 38 only if the 
insurer does not tender the UIM benefits within thirty days after the trial 
court signs a judgment establishing liability and underinsured status of the 
other motorist. ___S.W.3d___, ___ (Tex. 2006). In this case, State Farm had no 
contractual duty to pay benefits until the trial court rendered judgment for 
Nickerson. Brainard, ___S.W.3d at ___. Thus, there was no “just amount” 
for State Farm to owe, and Nickerson had no claim to present before the trial 
court rendered judgment. Tex. Civ. Prac. 
& Rem. Code § 38.002(3). Therefore, the trial court erred in awarding 
Nickerson attorney’s fees incurred during the trial, and the court of appeals 
erred in affirming that judgment. 
For the 
reasons stated in Brainard, we reverse that part of the court of appeals’ 
judgment awarding attorney’s fees incurred during the trial and render judgment 
for State Farm on that issue. Tex. R. 
App. P. 60.2(c). We affirm the remainder of the court of appeals’ 
judgment. Id. 60.2(a). 
 
_____________________________
Wallace B. 
Jefferson
Chief 
Justice
 
 
OPINION 
DELIVERED:     December 22, 
2006                                                     

 