Evaluating and defending claims for uninsured/underinsured “UM/UIM” benefits brought pursuant to the Uniform Declaratory Judgment Act (“UDJA”). 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 the various methods for asserting such claims. The presentation will specifically address the current split in authority among the intermediate Texas courts of appeals as to the issue of whether attorneys’ fees are recoverable under the UDJA where the insured has not yet established legal entitlement and there has been no breach of the insurance policy. See Allstate Ins. Co. v. Irwin, No. 04-18-00293-CV, 2019 WL 3937281 (Tex. App.—San Antonio case law and Aug. 21, 2019, pet. filed); Allstate Fire & Cas. Ins. Co. v. Inclan, No. 13-19-00026-CV, 2020 WL 373061 (Tex. App—Corpus Christi Jan. 23, 2020, pet. filed) cf. Allstate Insurance Company v. Jordan, 06-15-00042-CV, (Tex. App.—Texarkana July 29, 2016, no pet.).
We will also discuss the arguments which are being asserted, and the proof which is being offered in support of the insured’s “just and equitable” claim for attorneys’ fees under the UJDA. Additionally we will discuss whether Menchaca has changed the handling of UM/UIM claims pursuant to Brainard. Lastly, we will review the new case law concerning deposing claims adjusters/corporate representatives before the insured has established legal entitlement.