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
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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