      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-15-00527-CV



                  In re Farmers Texas County Mutual Insurance Company


                     ORIGINAL PROCEEDING FROM TRAVIS COUNTY



                            MEMORANDUM OPINION


               Real party in interest Guy Gimenez brought the underlying case against his

automobile insurer, relator Farmers Texas County Mutual Insurance Company, asserting contractual

and extra-contractual claims based on the unisured/underinsured motorist (UIM) provisions of his

insurance policy. The Travis County Court at Law No. 2 severed the extra-contractual claims into

a separate cause number but denied Farmers’s motion to abate those claims. The Travis County

Court at Law No. 1 also denied Farmers’s motion for rehearing on abatement.1 In this original

proceeding, Farmers seeks a writ of mandamus compelling the county court to (1) vacate its order

denying relator’s motion for rehearing on abatement, and (2) enter an order abating all proceedings

and discovery in the extra-contractual action.2 We conditionally grant the writ of mandamus.




       1
         The Travis County courts at law operate on a central docket. See Travis Cnty. Cts. at Law
Loc. R. 2.3 (maintaining central docket for county courts at law nos. 1 and 2).
       2
         In its petition, relator Farmers Texas County Mutual Insurance Company references an
accompanying motion for temporary relief. No motion, however, was filed with this Court. Further,
pending before this Court is Farmers’s request for oral argument. We deny this request.
                                          BACKGROUND

                Gimenez was involved in an automobile accident with a third party. Gimenez sued

the third party for negligence. With Farmers’s consent, Gimenez settled with the third party for the

third party’s liability policy limits. Gimenez then sought benefits under the UIM provisions of his

insurance policy with Farmers. After Farmers declined to pay his claim, Gimenez sued Farmers,

asserting breach of contract and extra-contractual claims. Gimenez alleged that, by denying his

claim for UIM benefits, Farmers breached the insurance contract and that it violated the Insurance

Code by “knowingly fail[ing] to act in good faith to effectuate a prompt, fair, and equitable

settlement of this claim once Farmers’ liability became reasonably clear.” See Tex. Ins. Code

§ 541.060(a)(2)(A) (listing “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”

as unfair settlement practice). Based on the same factual allegations, Gimenez also asserted that

Farmers violated the Texas Deceptive Trade Practices Act and an insurer’s duty of good faith

and fair dealing. See Tex. Bus. & Com. Code § 17.50(a)(4) (generally providing relief for

consumers based on violation of Insurance Code); Universe Life Ins. Co. v. Giles, 950 S.W.2d 48,

50–51, 56 (Tex. 1997) (discussing insurer’s “duty of good faith and fair dealing” and “reasonably

clear” standard).

                Farmers moved to sever and abate the extra-contractual claims until the breach of

contract claim was resolved. Gimenez filed a response in opposition. After a hearing, the Travis

County Court at Law No. 2 ordered the extra-contractual claims severed but denied abatement,

ordering “that discovery may proceed as part of the lawsuit filed by [Gimenez].” Farmers filed a



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motion for rehearing on abatement. Following another hearing, the Travis County Court at Law

No. 1 denied the motion for rehearing. Shortly thereafter, Farmers brought this original proceeding.

We requested a response from Gimenez, which he has filed.


                                   STANDARD OF REVIEW

               A party seeking mandamus relief must establish that (1) the trial court clearly

abused its discretion and (2) there is no adequate remedy by appeal. In re Prudential Ins. Co.,

148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding); see In re Ford Motor Co., 165 S.W.3d 315,

317 (Tex. 2005) (orig. proceeding) (per curiam). A trial court has no discretion in determining what

the law is or applying the law to the facts of the case. In re Prudential Ins., 148 S.W.3d at 135.


                                          DISCUSSION

               In its petition for mandamus relief, Farmers argues that the county court abused its

discretion by refusing to abate the extra-contractual action, “thereby requiring Farmers to prepare

for and litigate claims which have not accrued and may be rendered moot by the outcome of the

contract action.” According to Farmers, Gimenez’s extra-contractual claims have not accrued

because Gimenez has not obtained a judgment against the third party establishing the third party’s

negligence and damages in excess of the third party’s policy limits or Farmers’s agreement that

Gimenez is “legally entitled” to benefits under the UIM provisions of the insurance policy. See Tex.

Ins. Code § 1952.106 (requiring UIM coverage to “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

motor vehicles because of bodily injury or property damage, not to exceed the limit specified in the



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insurance policy, and reduced by the amount recovered or recoverable from the insurer of the

underinsured motor vehicle” (emphasis added)). Farmers urges that the “unique” nature of UIM

insurance in this circumstance requires abatement because the “establishment of an insured’s legal

entitlement to UIM benefits is a prerequisite to the prosecution of that insured’s extra-contractual

claims.” See Brainard v. Trinity Universal Ins. Co., 216 S.W.3d 809, 818 (Tex. 2006) (“The UIM

contract is unique because, according to its terms, benefits are conditioned upon the insured’s legal

entitlement to receive damages from a third party.”).

                In the context of a UIM claim, before an insurer is contractually obligated to pay

benefits, the insured must prove that he has coverage, “that the underinsured motorist negligently

caused the accident that resulted in the insured’s covered damages, the amount of the insured’s

damages, and that the underinsured motorist’s insurance coverage is deficient.” In re Allstate Cnty.

Mut. Ins. Co., 447 S.W.3d 497, 501 (Tex. App.—Houston [1st Dist.] 2014, orig. proceeding) (citing

Brainard, 216 S.W.3d at 818). “Thus, an insured generally must first establish that the insurer is

liable on the contract before the insured can recover on extra-contractual causes of action against an

insurer for failing to promptly pay, failing to settle, or failing to investigate an underinsured motorist

insurance claim.” Id.; see Henson v. Southern Farm Bureau Cas. Ins. Co., 17 S.W.3d 652, 654 (Tex.

2000) (noting that settlement with third party alone did not establish entitlement to recover UIM

benefits from insurer). Further, prevailing on a breach of contract claim for UIM benefits does not

establish an insurer’s bad faith. See Giles, 950 S.W.2d at 50–51, 56 (discussing insurer’s “duty of

good faith and fair dealing” and “reasonably clear” standard); see also Accardo v. America First

Lloyds Ins. Co., No. H-11-0008, 2013 WL 4829252, at *5–6 (S.D. Tex. Sep. 10, 2013) (discussing



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bad faith claim in context of UIM insurance coverage and noting that “[e]vidence that only shows

a bona fide dispute about the insurer’s liability on the contract does not rise to the level of bad faith”

(citation omitted)).

                To support its position that the county court should have abated the extra-contractual

action after severance, Farmers cites this Court’s opinion in In re American National County Mutual

Insurance Company, 384 S.W.3d 429 (Tex. App.—Austin 2012, orig. proceeding). In that case

concerning UIM insurance, we concluded that the trial court abused its discretion in denying the

insurer’s motion for severance and abatement of its insured’s extra-contractual claims and granted

mandamus relief, ordering the trial court to sever and abate those claims. Id. at 439. In granting

mandamus relief, we explained:


        •       “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,”

        •       “any duty by an insurer to its insured, common law or statutory, necessarily
                arises from the contractual relationship between the parties,” and

        •       an insured “must necessarily demonstrate that [insurer] was contractually
                obligated to pay her UIM claim” to prevail on extra-contractual claims.


Id. at 437–38; see also Tex. Ins. Code § 1952.106; Brainard, 216 S.W.3d at 818 (noting that

“insurer’s contractual obligation [under UIM contract] to pay benefits does not arise until liability

and damages are determined”); In re United Fire Lloyds, 327 S.W.3d 250, 256 (Tex. App.—San

Antonio 2010, orig. proceeding) (concluding, based on “clear holding in Brainard,” that insurer

“[was] under no contractual duty to pay UIM benefits until [insured] establishes the liability and



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underinsured status of the other motorist”). We also concluded that the insurer did not have an

adequate remedy by appeal because it would lose substantial rights “by being required to prepare and

try claims that may be rendered moot.” See In re American Nat’l, 384 S.W.3d at 439.

               In his response, Gimenez argues that the opinion in American National is

distinguishable because, in that case, the insurer offered to settle the UIM claim and Farmers has not

made a settlement offer to Gimenez. See id. at 432. The lack of a settlement offer alone, however,

does not dictate the abatement determination. See In re Allstate, 447 S.W.3d at 498 (granting

mandamus relief and ordering trial court to abate and sever extra-contractual claims in situation

where insurer did not make offer to settle UIM claim); In re Progressive Cnty. Mut. Ins. Co.,

439 S.W.3d 422, 425–26 (Tex. App.—Houston [1st Dist.] 2014, orig. proceeding) (granting

mandamus relief and ordering trial court to abate and sever extra-contractual claims in situation

where there was “no evidence in the record” that insurer offered to settle UIM claim and collecting

cases in which courts have considered issues of severance and abatement in context of UIM claim).

               Gimenez also urges in his response that the county court did not abuse its discretion

in denying abatement and allowing discovery to proceed because Farmers failed to “prove by

evidence that the abatement is required for justice, judicial economy, and to avoid prejudice.” See

In re State Farm Mut. Auto. Ins. Co., 395 S.W.3d 229, 237–38 (Tex. App.—El Paso 2012, orig.

proceeding) (op. on reh’g) (declining to create “ironclad rule mandating abatement at every given

time, even if severance of contract and bad faith claims required” and placing burden on movant to

show that abatement would “promote justice,” “avoid prejudice,” and “promote judicial economy”).

He urges that it was Farmers’s burden to present evidence to show that abatement was required and



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that it failed to do so. The record, however, includes discovery requests propounded by Gimenez

that are broader than his breach of contract claim, his factual allegations in his pleadings, and a copy

of the section of his insurance policy addressing the relevant UIM coverage that tracks the mandated

coverage in section 1952.106 of the Insurance Code. See Tex. Ins. Code § 1952.106. Gimenez also

does not challenge the county court’s severance of the extra-contractual claims into a separate cause

number and agrees that the extra-contractual action should not proceed to trial until the contract

action has resolved. Under these circumstances, it follows that abatement is required. See In re

American Nat’l, 384 S.W.3d at 433, 437–39 (noting that “controlling reasons for severance are to

do justice, avoid prejudice, and further convenience” and that these equitable factors also weighed

in favor of abating extra-contractual claims in UIM case).

               As recognized by this Court as well as our sister courts, because an insurer is under

no contractual duty to pay a claim brought under a UIM policy until liability is established, the

insurer should not be required to put forth the effort and expense of conducting discovery and

preparing for trial on severed extra-contractual claims that could be rendered moot—to require the

insurer to do so would not promote justice or judicial economy or avoid prejudice. In re

Progressive, 439 S.W.3d at 426–27; In re American Nat’l, 384 S.W.3d at 437–39; In re United Fire

Lloyds, 327 S.W.3d at 256; see also United States Fire Ins. Co. v. Millard, 847 S.W.2d 668, 673

(Tex. App.—Houston [1st Dist.] 1993, orig. proceeding) (“Enhancing judicial efficiency becomes

particularly important in view of the burgeoning practice of routinely alleging bad faith in cases in

which insurance is involved.”).




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               Gimenez also argues in his response that Farmers has not presented this Court with

an adequate record to grant mandamus relief. See Tex. R. App. P. 52.7(a)(1) (requiring relator to

file copies of documents that are material to claim for mandamus relief). The record includes a copy

of the order denying the motion for rehearing on abatement and the original order granting severance

but denying abatement, as well as the transcript of the hearing on Farmers’s motion for rehearing of

its plea in abatement and other relevant pleadings. Although the record does not include the

transcript from the hearing in which the county court initially considered severance and abatement,

the order from that hearing reflects that no testimony was taken. See id. R. 52.7(a)(2) (requiring

relator to file transcript of relevant testimony from any underlying proceeding). Thus, a transcript

was not required from that hearing. Based on our review of the mandamus record, we conclude that

Farmers complied with Rule 52.7.

               Gimenez also argues that Farmers should be seeking mandamus on the original order

denying abatement. He points out that the original order was entered by the judge of County Court

at Law No. 2, and the order denying the motion for rehearing was entered by the judge of County

Court at Law No. 1. Gimenez has not cited, and we have not found, authority that would support

this argument. The Travis County courts at law operate on a central docket. See Travis Cnty. Cts.

at Law Loc. R. 2.3 (maintaining central docket for county courts at law nos. 1 and 2). Further, giving

the county court the opportunity to reconsider its decision to abate the severed extra-contractual

action was prudent. The parties had failed to bring this Court’s opinion in American National to the




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attention of the judge who originally considered Farmers’s motion to sever and abate, but brought

it to the attention of the judge considering the motion for rehearing, joining issue with

its applicability.

                Informed by the analysis in American National, we conclude that it was an abuse of

discretion for the county court to deny Farmers’s motion for rehearing on abatement and that

Farmers does not have an adequate remedy by appeal. See 384 S.W.3d at 439; see also In re United

Fire Lloyds, 327 S.W.3d at 257 (granting mandamus relief and ordering trial court to sever and abate

extra-contractual claims from UIM claim). Similar to the insured in American National, Gimenez’s

extra-contractual claims “are premised on a contractual obligation to pay [his] UIM claim,” and he

“does not allege that [he] has suffered any damages unrelated and independent of [his] contract

claim.” See 384 S.W.3d at 438. Thus, Gimenez’s extra-contractual claims would be rendered moot

upon a determination that Farmers is not contractually obligated to pay his UIM claim. See id. On

this record, we conclude that Farmers has established its right to mandamus relief. See In re

Prudential Ins., 148 S.W.3d at 135–36.


                                          CONCLUSION

                We conditionally grant mandamus relief and order the county court to vacate its order

dated August 19, 2015, denying relator’s motion for rehearing on abatement, and enter an order

abating all proceedings and discovery in the extra-contractual action. The writ will issue only if the

county court fails to comply.




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                                          __________________________________________

                                          Melissa Goodwin, Justice

Before Justices Puryear, Goodwin, and Bourland

Filed: September 30, 2015




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