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A UIM claim is the strangest claim in Texas injury law, and the strangeness costs people money because they do not see it coming.
You bought the coverage. You paid the premiums. Someone with too little insurance hurt you. You submit the claim to your own carrier, and nothing happens. That is not necessarily bad faith. Under Texas law, your insurer does not owe you anything yet.
Brainard v. Trinity Universal Insurance Co., 216 S.W.3d 809 (Tex. 2006), holds that “the UIM insurer is under no contractual duty to pay benefits until the insured obtains a judgment establishing the liability and underinsured status of the other motorist.”
Two things have to be established, and note precisely what they are: the other motorist’s liability, and the other motorist’s underinsured status. Until a judgment establishes both, there is no breach, because there is nothing yet due.
This is why a UIM claim can sit for a year with a polite adjuster and no offer, and why sending demand letters to your own carrier does not move it. There is no contractual duty for the carrier to breach.
Brainard also held that a UIM claim is not “presented” for purposes of the Chapter 38 attorney’s fee statute until the trial court signs the judgment establishing negligence and underinsured status, which for years meant an insured who won still could not recover fees.
Allstate Insurance Co. v. Irwin, 627 S.W.3d 263 (Tex. 2021), addressed that gap.
The court held that an insured may use the Uniform Declaratory Judgments Act to establish the two Brainard prerequisites, the tortfeasor’s liability and underinsured status, because a real controversy over the parties’ contractual rights exists before any breach has matured.
On attorney’s fees, be careful how this is stated, because it is commonly overstated. Irwin did not hold that a winning insured recovers fees. It held that fees are available under Chapter 37, which entrusts fee awards to the trial court’s sound discretion and permits them only as equitable and just. The court also preserved the rule against tacking a declaratory claim onto a matured breach claim simply to obtain fees. Irwin was different precisely because, under Brainard, no breach claim had yet matured.
Irwin was decided five to four. It supplements Brainard rather than displacing it.
The sequence of a UIM case is not the sequence of an ordinary injury claim.
Identify every layer of coverage first. UM and UIM coverage often exists on more than one policy, including policies the injured person did not buy and does not know about, such as a household member’s policy or an employer’s.
Get the underlying carrier’s limits and confirm exhaustion.
Understand that consent matters. Auto policies commonly contain a subrogation clause requiring the UIM carrier’s consent before settling with the at-fault driver. Settling without it can jeopardize the UIM claim entirely. This is one of the most common and most expensive unforced errors in Texas UIM practice.
Then establish liability and underinsured status, by declaratory action or by suit against the tortfeasor, because that is what unlocks the coverage.
Every statute and case linked above was read at its primary source. Texas statutes change every legislative session and case law is constantly changing.
This page is general information about Texas law. It is not legal advice about your situation, and reading it does not create an attorney-client relationship.
The claim against the at-fault driver is governed by the two-year period in Section 16.003(a) of the Civil Practice and Remedies Code, running from the collision. A UIM claim that has been “under review” with a friendly adjuster for twenty-three months is a claim in trouble.
Schiffer Law Firm handles uninsured and underinsured motorist claims and coverage disputes in Houston and across Texas.
There is no charge to talk, and no attorney’s fee unless there is a recovery.
Call 713-521-0059.
This page is general information about Texas law, not legal advice about your situation, and reading it does not create an attorney-client relationship.
Brainard v. Trinity Universal holds that a UIM insurer owes nothing until a judgment establishes the liability and underinsured status of the other motorist.
Allstate Insurance Co. v. Irwin allows an insured to use the Declaratory Judgments Act to establish liability and damages, and permits fees at the trial court discretion.
No. Under Chapter 37 fees are equitable and just, which is discretionary, not the mandatory scheme of Chapter 38.
Two years for the underlying negligence. The contract claim against your own carrier has its own timing and should not be assumed.
