Upon completion of this course, attendees should have learned about the proper scope of discovery in handling UM/UIM claims in Texas. Attendees will also learn about the impact of Menchaca, if any, on Brainard and how UM/UIM claims are handled in Texas. Lastly, attendees will learn about current Texas authority related to whether the UDJA is a permissible cause of action for recovering UM/UIM benefits. Attendees should be familiar with whether the UDJA provides a valid basis for recovering attorney’s fees in addition to UM/UIM benefits.
New issues have begun to arise in litigating uninsured/underinsured motorist “UM/UIM” claims in Texas. This presentation will address those new issues which include: (1) whether the insured has any proper basis for deposing the claims adjuster/corporate representative before the insured has established legal entitlement; (2) whether Menchaca has changed the handling of UM/UIM claims pursuant to Brainard; and (3) whether the Uniform Declaratory Judgment Act (“UDJA”) provides a proper basis for asserting UM/UIM claims and also allows for the recovery of attorneys’ fees. Issues specific to this presentation include an overview of the case law and insurance code provisions governing recovery of UM/UIM benefits in Texas, as well as a discussion of the proper scope of discovery in litigating a UM/UIM claim in Texas and the various methods for asserting such claims.
I. What is the proper scope of discovery before the insured has established legal entitlement?
This will include a discussion of whether there is any valid basis for deposing the adjuster or corporate representative before the insured has established legal entitlement. A number of intermediate appellate courts have addressed this issue and appear to be split. We will also discuss whether the insured has a right to depose the adjuster/corporate representative simply because the insurer is a party, regardless of whether the adjuster/corporate representative can provide relevant testimony concerning liability and damages?
B. Contention Discovery
Lastly, we will also include a discussion of the proper use of contention discovery in UM/UIM litigation where the insured has not yet established legal entitlement. We will discuss the proper scope of contention discovery and whether it requires the insured to state its contentions regarding the value of the insured’s claim.
II. Whether Menchaca has changed the handling of UM/UIM claims pursuant to Brainard ?
This will include a discussion of the condition precedent that an insured must establish in order to recover UM/UIM benefits as outlined in Brainard v. Trinity Universal Ins. Co., 216 S.W.3d 809 (Tex. 2006). It will also include a discussion of USAA Texas Lloyds Co. v. Menchaca, --S.W.3d--, 2018 WL 1866041 (Tex. Apr. 13, 2018)(Op. on rehearing) and what impact it has on Brainard or UM/UIM claims in general, if any. Lastly, we will discuss In re State Farm Mut. Auto. Ins. Co., 2018 WL 2121354 (orig. proceeding)(May 9, 2018) and the San Antonio Court of Appeal’s opinion that Menchaca does not change Brainard or the way that UM/UIM claims are handled in Texas.
III. Whether the Uniform Declaratory Judgment Act (“UDJA”) provides a proper basis for asserting UM/UIM claims and also allows for the recovery of attorneys’ fees?
This will include a discussion of the UDJA and whether it provides a proper basis for recovery of UM/UIM benefits or attorneys’ fees. We will also discuss Allstate Insurance Company v. Jordan, 06-15-00042-CV, (Tex. App.—Texarkana July 29, 2016, no pet.) and other recent case law expressly addressing the UDJA and its application to the recovery of UM/UIM benefits. We will also discuss whether attorneys’ fees are recoverable in addition to UM/UIM benefits under the UDJA.
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