denying rehearing.
Allstate’s motion for rehearing (1) reasserts its “breach of contract” issues, pointing out that a conflict exists between our decision and that of other courts of appeals, (2) asserts that our error lies, in part, in the fact that the defense of excessive demand “offers little reassurance” to insurers in its position, and (3) renews its claims regarding segregation of attorney’s fees and failure to file findings of fact and conclusions of law. Because we did not fully describe the policy consideration that led to our decision on the attorney’s fees issue, we write further in denying the motion for rehearing.
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 *878prejudgment interest, which Allstate has paid. The appeal involves only the court’s award of $20,000 in attorney’s fees based on the UIM contract, plus additional attorney’s fees for appeal.
BREACH OF CONTRACT
Allstate continues to rely on the concept of “breach of contract.” If we were to adopt Allstate’s position, two suits would be necessary for recovery of attorney’s fees under a UIM policy — one to determine the amount of damages that the policy holder is “legally entitled to recover” and one for attorney’s fees if the insurer refuses to pay those damages. We would be saying that a UIM policy is different from other contracts involving unliquidated damages. Chapter 38 of the Civil Practice and Remedies Code does not require that the damages be liquidated before attorney’s fees may be recovered. Nor does it exempt insurance contracts, except as stated in section 38.006. Thus, we do not believe that UIM policies should be excluded from the statute’s effect. We are unwilling to adopt a construction of such policies that would conflict with a statute and lead to a multiplicity of suits and the attendant consumption of scarce judicial resources.
Allstate asserts that the San Antonio Court changed its position in Essman v. General Accident Ins. Co., 961 S.W.2d 572 (Tex.App. — San Antonio 1997, no writ). Essman, however, involved a claimant who attempted to sue her insurer after she had settled with the alleged tortfeasor in an earlier suit brought by that party. What the court held was that her settlement prevented her from being able to establish the alleged tortfea-sor’s fault, thus being unable to establish the predicate for recovery of UIM benefits.1 Essman does not cite Novosad v. Mid-Century Ins. Co., 881 S.W.2d 546 (Tex.App.— San Antonio 1994, no writ), upon which we relied in our original opinion.
EXCESSIVE DEMAND
Allstate also asserts that the defense of excessive demand is “simply not adequate” to protect insurers under these conditions. It says that Lincoln’s demand was excessive as a matter of law and therefore she is not entitled to attorney’s fees. We disagree.
We remain convinced that “excessive demand” is the proper way to defend against an unwarranted claim for attorney’s fees. See Findlay v. Cave, 611 S.W.2d 57 (Tex.1981) (“A creditor who makes an excessive demand upon a debtor is not entitled to attorney’s fees for subsequent litigation required to recover the debt.”). The defense protects a party to a contract from attorney’s fees due to its inability to settle a claim based on an unreasonable demand.
In Findlay v. Cave, Findlay, a lawyer, represented Mrs. Cave under an employment contract allowing him a percentage of property awarded to her in a divorce proceeding. After judgment, Findlay calculated the fee at $57,830.29, which he demanded that she pay. Mrs. Cave paid $10,000 and refused to pay more. Although the jury rejected Findlay’s claim because the employment agreement was not “fair and reasonable,” it awarded Cave $5,624.23 in quantum meruit in addition to the $10,000.00 already received. In rejecting Mrs. Cave’s claim of “excessive demand,” the Supreme Court discussed two considerations: (1) the prior cases denying attorney’s fees due to excessive demand were liquidated-damages cases where the creditor sued for more than was due on the contract; and (2) a claim for an amount appreciably greater than that which a jury later determines is actually due cannot be the only criterion for determination that the demand was excessive. Id. at 58. The latter proposition is especially true, the Court stated, where the amount due is unliquidated. See id. The dispositive inquiry for determining whether a demand is excessive is whether the claimant acted unreasonably or in bad faith. Id.
Lincoln’s evidence concerning the reasonableness and necessity of attorney’s fees was presented to the jury, which found the amounts of reasonable and necessary attorney’s fees for trial and for possible appeals. After the trial the court heard additional *879evidence on the issue. We have again reviewed the reporter’s record of the latter part of the proceeding and find that most of the evidence about demand was directed at whether Allstate was liable on Lincoln’s claim for delay damages and attorney’s fees under section 21.55 of the Insurance Code — a claim that the court ultimately rejected.
As for Allstate’s assertion that the demand was excessive as a matter of law, we pointed out in a footnote that the trial court has determined that Lincoln’s demand letter was not a part of the record on appeal. Additionally, Allstate did not plead “excessive demand,” nor is there any evidence of unreasonableness or bad faith on Lincoln’s part in demanding a sum greater than that awarded by the jury. Because Allstate failed to plead or prove its defense of excessive demand, the court was not obligated to consider it. Again, the dispositive inquiry for determining whether a demand is excessive is whether the claimant acted unreasonably or in bad faith. See Findlay, 611 S.W.2d at 58; see also Panizo v. Young Men’s Christian Ass’n of Greater Houston Area, 938 S.W.2d 168, 169 (Tex.App. — Houston [1st Dist.] 1996, no writ).
Finally, we note that adoption of Allstate’s position would result in an insured’s inability to recover attorney’s fees even when the insured demanded the correct amount of damages.
OTHER ISSUES ON REHEARING
We will not further discuss our decision about segregation of attorney’s fees and the court’s failure to file findings of fact and conclusions of law.
CONCLUSION
Having considered Allstate’s rehearing issues and finding them without merit, we deny the motion for rehearing.
. We think the better analysis in the situation presented by Essman would be to hold that the insured could not show damages because of the earlier settlement. That is, the insured had been paid all the damages she had agreed that she had.