Uninsured and Underinsured Motorist Claims

Why does a UIM claim work differently from other claims?

The Texas Supreme Court decided Brainard v. Trinity Universal Insurance Co., 216 S.W.3d 809 (Tex. 2006). It 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.”

Both of those have to be established: 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 your UIM claim can sit for a year with a polite adjuster and no offer. It is also why sending demand letters to your own carrier usually does not move it, since there is usually no contractual duty yet 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. For years, that meant an insured who won still could not recover fees.

What did Allstate v. Irwin change?

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. It reasoned that 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, and it supplements Brainard rather than displacing it.

What are the steps in a UIM claim?

The sequence of a UIM case is not the sequence of an ordinary injury claim. You start by identifying every layer of coverage. UM and UIM coverage often exists on more than one policy, including policies you did not buy and do not know about, such as a household member’s policy or an employer’s.

Next, get the underlying carrier’s limits and confirm exhaustion. In practice, that often starts with a written statement of the at-fault driver’s policy limits.

Then 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 a common and costly mistake. Asking for consent in writing before you settle helps protect the claim.

Finally, liability and underinsured status are established, by declaratory action or by suit against the tortfeasor. That judgment is what brings the coverage into play.

What should you gather while the claim is pending?

Start with the declarations page of every auto policy in your household, and ask whether your employer’s vehicle or policy is involved. Keep the crash report, photographs of the vehicles, and the names of witnesses. Keep your medical records and bills as they arrive, since they show what your injuries have cost.

Put every communication with both carriers in writing, and keep what you send and what comes back. A timeline kept as it happens is much more useful than one rebuilt from memory months later.

How long do you have?

The claim against the at-fault driver is generally governed by Section 16.003(a) of the Civil Practice and Remedies Code. Suit must be brought within two years after the day the claim accrues, which is usually the date of the injury. A UIM claim that has been “under review” with a friendly adjuster for twenty-three months is close to that deadline, and a review by your own carrier may not stop the clock.

The contract claim against your own carrier has its own timing, and it should not be assumed. Your dates are worth checking early, before either deadline is close.

Primary sources

• Brainard v. Trinity Universal Ins. Co., 216 S.W.3d 809 (Tex. 2006)
• Allstate Ins. Co. v. Irwin, 627 S.W.3d 263 (Tex. 2021)
• Tex. Civ. Prac. & Rem. Code ch. 16 (limitations)

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.