TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-20-00169-CV
Patricia Mihal, Appellant
v.
GEICO Advantage Insurance Company, Appellee
FROM THE 126TH DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-GN-18-003830, THE HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING
MEMORANDUM OPINION
The dispute in this appeal is whether a party may, as a matter of law, obtain a
discretionary award of attorney’s fees in a declaratory-judgment action seeking to declare
the amount to which that party is entitled under an underinsured motorist (UIM) policy.
Patricia Mihal appeals the trial court’s judgment denying her an award of attorney’s fees against
her insurer, GEICO Advantage Insurance Company, based on the trial court’s determination
that attorney’s fees are “precluded as a matter of law” when a party brings a claim for UIM
benefits under the Uniform Declaratory Judgments Act (UDJA). See Allstate Ins. v. Jordan,
503 S.W.3d 450, 457 (Tex. App.—Texarkana 2016, no pet.) (holding that award of attorney’s
fees under UDJA for UIM claims was error). But see Tex. Civ. Prac. & Rem. Code § 37.009
(“In any proceeding under this chapter [Declaratory Judgments], the court may award costs
and reasonable and necessary attorney’s fees as are equitable and just.”); Allstate Ins. v. Irwin,
606 S.W.3d 774, 780 (Tex. App.—San Antonio 2019) (holding that attorney’s fees are
recoverable under UDJA for UIM claims), aff’d, No. 19-0885, 2021 WL 2021446, at *6 (Tex.
May 21, 2021).
After an automobile accident with a third-party driver, Mihal settled with the
driver for the limits of the driver’s liability insurance. Mihal then filed a UDJA lawsuit against
GEICO seeking to declare the liability of the other driver and the amount of her damages.
Following a jury verdict, the trial court rendered a judgment adjudging the other driver solely
at fault and declaring Mihal’s damages in excess of $600,000. The judgment awarded Mihal
the full limits of her UIM coverage ($100,000), plus court costs, but denied Mihal’s request for
attorney’s fees.
In its judgment, the trial court recited that it is “not exercising its discretion to
deny an award of attorney’s fees” because an award of attorney’s fees is “precluded as a matter
of law.” Mihal complains that the trial court’s legal determination about attorney’s fees is
erroneous. In light of binding recent authority, we agree with Mihal. See Irwin, 2021 WL
2021446, at *6 (determining that declaratory-judgment action is proper vehicle for resolving
contractual dispute about UIM coverage and affirming trial court’s award of attorney’s fees
because “[p]art of the remedy [the UDJA] affords is a discretionary award of reasonable attorney’s
fees when equitable and just”).
Accordingly, we reverse the portion of the trial court’s judgment denying Mihal
an award of attorney’s fees and remand this cause to the trial court for reconsideration of
whether an award of reasonable attorney’s fees is equitable and just. We affirm the remainder
of the judgment.
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__________________________________________
Thomas J. Baker, Justice
Before Chief Justice Byrne, Justices Baker and Kelly
Affirmed in Part; Reversed and Remanded in Part
Filed: July 15, 2021
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