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IN THE
TENTH COURT OF APPEALS
 

No. 10-97-224-CV

     ALLSTATE INSURANCE COMPANY,
                                                                              Appellant
     v.

     YVONNA LINCOLN,
                                                                              Appellee
 

From the 272nd District Court
Brazos County, Texas
Trial Court # 42,130-272
                                                                                                                

O P I N I O N
                                                                                                                

      In this appeal we decide that a determination of the amount of damages is not a prerequisite
to “presentment” of a claim leading to an award of attorney's fees for failure to pay under an
underinsured motorist (“UIM”) liability policy.   
      Yvonna Lincoln was involved in an automobile accident with Rachel Garcia in which 
Garcia's vehicle struck the rear of Lincoln's.  Garcia had insurance coverage of $20,000, and her
company paid the policy limits before trial.  Lincoln sued Garcia for additional damages and
joined her own insurance carrier, Allstate, under the UIM provisions of her policy.
      The jury found damages of $44,073.33.  Because Garcia's insurance carrier had already paid
its $20,000 policy limits, the judgment against Allstate was for $24,073.33 plus prejudgment
interest, which Allstate has paid.  
      In a separate hearing before the court, Lincoln sought attorney's fees for violations of section
21.55 of the Insurance Code and for breach of the UIM contract.  The court denied the Insurance
Code claim, but awarded Lincoln $20,000 in attorney's fees based on the UIM  contract, plus
additional attorney's fees for appeal.  These amounts were also included in the final judgment.
      Allstate does not complain of the jury's award of damages, which it has paid.  It complains
that the court erred in awarding attorney's fees, because there was no "breach of contract." 
BREACH OF CONTRACT
      Allstate's first issue argues that, under the language of the UIM policy, a judicial
determination of damages is a condition precedent to a claim on which attorney's fees may be
recovered for a breach of contract.  Its second issue asserts that there is no evidence or insufficient
evidence of a breach of the insurance contract.
      The UIM policy provides:
[Allstate] will pay damages which a covered person is legally entitled to recover from the
owner-operator of [an] uninsured motor vehicle proposed (sic) by the bodily injury sustained
by covered person or property damage caused by the accident.

(Emphasis added.)  Allstate argues that its duty to pay under the UIM coverage provision did not
arise until there was a judgment determining the amount of damages against the under- insured
driver.  Thus, Lincoln was not “legally entitled to recover” until she obtained the judgment against
Garcia.  Only then, it argues, could Lincoln claim that failure to pay would  breach the agreement
to pay her the balance of her damages.
      Lincoln argues that the amount of damages does not have to be determined before a claimant
is entitled to assert a claim for attorney's fees.  She argues that liability was not contested, she
made demand on Allstate for damages, Allstate did not pay her damages, she was required to go
to trial, and the jury found the damages owed. 
      The recovery of statutory attorney's fees is set forth in Chapter 38 of the Civil Practice and
Remedies Code.  Tex. Civ. Prac. & Rem. Code Ann. §§ 38.001-.006 (Vernon 1997).  “A
person may recover reasonable attorney's fees from an individual or corporation, in addition to
the amount of a valid claim and costs, if the claim is for: . . .  (8) an oral or written contract.” Id.
§ 38.001.  To recover attorney's fees under Chapter 38:  (1) the claimant must be represented by
an attorney; (2) the claimant must present the claim to the opposing party or to a duly authorized
agent of the opposing party; and (3) payment for the just amount owed must not have been
tendered before the expiration of the 30th day after the claim is presented.  Id. § 38.002.  Further,
Chapter 38 is to be “liberally construed to promote its underlying purposes.”  Id. § 38.005.
      Allstate cites two UIM cases in which courts of appeals have denied attorney's fees under
section 38.001.  In Sprague v. State Farm Mutual Auto. Ins. Co., 880 S.W.2d 415 (Tex.
App.—Houston [14th Dist.] 1993, no writ), Sprague sought to prove liability and damages.  The
trial court disregarded the jury's award of attorney's fees under section 38.001.  The court of
appeals held that there must be a determination of the amount a claimant is “legally entitled to
recover” if the claim is unliquidated.  Id. at 417.  Thus, the court held that until the jury
determines the amount owed, the insurer cannot be said to have failed to tender payment of the
“just amount owed.”
      In Sikes v. Zuloaga, 830 S.W.2d 752 (Tex. App.—Austin 1992, no writ), Sikes sought to
prove liability and damages.  The court of appeals held that the “legally entitled to recover”
provision creates a condition precedent to any duty to pay under the policy.  Id. at 753.  Thus, it
decided that the UIM insurer is not required to pay until a judgment is rendered specifying the
amount of damages the insured has sustained.
      However, two courts of appeals have gone the opposite direction.  In Novosad v. Mid-Century
Ins. Co., 881 S.W.2d 546 (Tex. App.—San Antonio 1994, no writ), the San Antonio Court
distinguished Sikes.  In Novosad, liability was not contested; thus the insurer was obligated to pay,
but the amount was in dispute.  The court rejected the reasoning that a specific amount of damages
must be determined before a claim arises on which attorney's fees are recoverable, because such
a rule would virtually eliminate the recovery of attorney's fees in any UIM situation.  Id. at 552.
      In Whitehead v. State Farm Mut. Auto. Ins. Co., 952 S.W.2d 79 (Tex. App.—Texarkana
1997, pet. filed) (op. on reh'g), the insurance company argued that attorney's fees were available
only if it refused to pay after the claimants showed themselves to be “legally entitled to recover”
from the uninsured motorist.  The Texarkana Court rejected the argument that a claim cannot be
“presented” until the amount of unliquidated damages is determined.  
      At the hearing on the issue of attorney's fees, Allstate argued that it was not obligated to pay
damages until the jury verdict was final.  The court, in discussing the issue, stated:
So the policy of insurance says “If you're hurt and the other guy doesn't have insurance
or enough insurance, we'll pay what you're legally entitled to receive?”  And here they
haven't, so a lawsuit results, they get a judgment, and it strikes me that that amounts to a
determination that Allstate has breached—I mean they may have done so in perfect good faith
from their point of view.  They had conceivably a perfectly reasonable argument about why
they should not pay, but that's been determined against them by the verdict of the jury. . . . 
If [Allstate] is right in [its] interpretation, then in every suit for breach of contract there could
be no recovery for attorney fees in the suit arising under the contract unless and until they're
going to pay the judgment for damages for breach of contract.

      As in Novasad, liability was not a question at trial.
  881 S.W.2d at 552.  Allstate sought to
prove that Lincoln had preexisting conditions and had subsequent injuries which lessened the
amount of damages attributed to the accident with Garcia, and the case was submitted to the jury
solely on the question of damages.    
      We agree with the Texarkana and San Antonio courts.  We do not believe the court erred in
awarding attorney's fees.  Chapter 38 does not speak in terms of a “breach” of contract.  Tex.
Civ. Prac. & Rem. Code Ann. § 38.001.  “A person may recover reasonable attorney's fees .
. . if the claim is for . . . an oral or written contract.”
 Id.  We overrule issues one and two.
EXCESSIVE DEMAND
      Allstate's third issue asserts that Lincoln's demand was excessive and therefore she is not
entitled to attorney's fees.
  A demand is not excessive simply because it is greater than that which
a jury later determines is actually due.  Findlay v. Cave, 611 S.W.2d 57, 58 (Tex. 1981).  The
dispositive inquiry for determining whether a demand is excessive is whether the claimant acted
unreasonably or in bad faith.  Id.  
      The court assessed attorney's fees after hearing the evidence both at trial and at the later
hearing on attorney's fees.  The record supports the court's implicit finding that the demand was
not excessive.  See Panizo v. Young Men's Christian Ass'n of Greater Houston Area, 938 S.W.2d
163, 169 (Tex. App.—Houston [1st Dist.] 1996, no writ).  We overrule issue three.
SEGREGATION AND REASONABLENESS OF FEES
      Allstate's fourth issue asserts that the evidence of attorney's fees is legally insufficient because
(1) Lincoln failed to segregate her fees between recoverable and nonrecoverable fees and (2)
because “flat rate” and contingency fees are not reasonable in breach-of-contract cases.
segregation
      Allstate argues that it is liable only for attorney's fees incurred in Lincoln's pursuit of the
UIM coverage, not for fees incurred in her suit against Garcia or for the unsuccessful section
21.55 claims.  Allstate did not object to Lincoln's failure to segregate attorney's fees.  Tex. R.
App. P. 33.1; Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 11 (Tex. 1991) (“If a party
refuses, over objection, to offer evidence segregating attorney's fees among various claims or
parties,” remedy is to remand) (emphasis added); Aetna Cas. & Sur. v. Wild, 944 S.W.2d 37, 40
(Tex. App.—Amarillo 1997, writ denied) (objection to jury charge based on failure to segregate
sufficient to preserve error).
reasonableness
      In addition to the evidence presented, the court was entitled to take judicial notice of the usual
and customary attorney's fees.  Tex. Civ. Prac. & Rem. Code Ann. § 38.004; Thomas v.
Thomas, 917 S.W.2d 425, 437 (Tex. App.—Waco 1996, no writ).  Usual and customary
attorney's fees for a claim presented under section 38.001 are presumed reasonable, but the
presumption may be rebutted.  Tex. Civ. Prac. & Rem. Code Ann. § 38.003.  Chapter 38 is to
be “liberally construed to promote its underlying purposes.”  Id. § 38.005.  
      The decision to grant or deny attorney's fees is within the trial court's sound discretion. 
Commissioners Court of Titus County v. Agan, 940 S.W.2d 77, 81 (Tex. 1997).  A reviewing
court will not overturn the trial court's decision absent a clear abuse of discretion.  Id.  The court
heard the evidence of attorney's fees during the jury trial and was entitled to take judicial notice
of the usual and customary fees.  Thomas, 917 S.W.2d at 437.  We do not find that the court
abused its discretion.  We overrule issue four.
FAILURE TO FILE FINDINGS OF FACT
      Allstate's final issue complains of the court's failure to file findings of fact and conclusions
of law, despite a timely request and reminder.  Lincoln does not dispute that the court failed to file
such findings.  However, she argues that Allstate cannot demonstrate any injury.  We agree.
      Each of Allstate's complaints relates to the award of attorney's fees.  We have reviewed and
overruled those issues, which were fully briefed and argued.  We overrule issue five.
      Having overruled each of Allstate's issues, we affirm the judgment.
 
                                                                                 BILL VANCE
Before Chief Justice Davis,                                           Justice
          Justice Cummings, and
          Justice Vance
          (Chief Justice Davis concurring)
Affirmed
Opinion delivered and filed August 26, 1998
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