Ralph K. Burgess Justice.
Following an accident with an underinsured motorist named Nickel Ford, Margaret Jordan sued Allstate Insurance Company under her underinsured motorist (UIM) benefits policy.
Both parties appeal from the trial court's judgment.
Lawsuits to recover UIM benefits are procedurally unique, often requiring a suit within a suit. Under the Texas Insurance Code,
TEX. INS. CODE ANN. § 1952.106 (West 2009). An insured can sue to recover UIM benefits, but "[a] motorist is underinsured [only] if the available proceeds of his liability insurance are insufficient to compensate for the injured party's actual damages." In re Arcababa, No. 10-13-00097-CV, 2013 WL 5890109, at *7 (Tex. App.-Waco Oct. 31, 2013, orig. proceeding) (mem. op.) (citing Stracener v. United Servs. Auto Ass'n, 777 S.W.2d 378, 380 (Tex. 1989)); see Brainard v. Trinity Universal Ins. Co., 216 S.W.3d 809, 812 (Tex. 2006). Therefore, as a prerequisite to establishing entitlement to UIM benefits, a plaintiff must first establish (1) that she is legally entitled to recover from an underinsured motorist and (2) that her damages exceed the policy limits of the underinsured motorist's policy.
Here, the issue of Ford's liability was not contested at trial.
After settling with Ford, Jordan continued to receive medical treatment. In light of her increasing medical bills, Jordan filed a claim with Allstate to recover her remaining damages, which Allstate denied.
Jordan sued Allstate following the denial of her claim. In her petition, she asserted causes of action for breach of contract and for a declaratory judgment, asking the trial court to make the following declarations:
On August 14, 2015, the trial court entered a modified judgment which decreed that the following facts were established in the dispute between the parties: (1) Jordan's claim for underinsured motorist benefits was covered under the Policy, (2) Ford's negligence was the proximate cause of the motor vehicle accident; (3) Jordan suffered compensable bodily injuries and damages as a result of the accident, (4) Jordan's compensable damages were in excess of the policy limits of Ford's GEICO policy, (5) Jordan was entitled to $30,000.00 for her personal injury damages, both in the past and in the future, and (6) after allowable credits, Allstate owed Jordan $3,110.60, including prejudgment interest.
Allstate argues that the trial court's declaratory judgment was improper for the following reasons: (1) Jordan's claims did not implicate the UDJA; (2) under recent Texas Supreme Court precedent, the UDJA is not the proper vehicle for pursuing claims for underinsured motorists; and (3) declaratory relief is inappropriate where the true cause of action lies in breach of contract. We address and reject each argument in turn.
The purpose of the UDJA "is to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations." TEX. CIV. PRAC. & REM. CODE ANN. § 37.002(b) (West 2015). "[I]t is to be liberally construed and administered." Id. A person interested under a written contract "may have determined any question of construction or validity arising under the instrument" and may "obtain a declaration of rights, status, or other legal relations thereunder." TEX. CIV.
Allstate contends that the UDJA was not implicated because there was never a question about the construction or validity of the Policy.
Although Allstate specifically agreed for the trial court to address both the declaratory judgment and breach of contract claims in this cause of action, it now argues that the UDJA cannot be a proper vehicle for establishing the prerequisites to recover UIM benefits. In support, it relies on the Texas Supreme Court's opinion in Brainard, 216 S.W.3d 809. Brainard explained that the insurer's duty to pay under a UIM policy is contractual in nature. Based on Brainard, Allstate argues that the proper cause of action for recovery of UIM benefits is breach of contract.
Yet, "[t]he Texas Supreme Court has held that a UM/UIM insurer has no contractual duty to pay benefits until the liability of the other motorist and the amount of damages suffered by the insured are determined." Arcababa, 2013 WL 5890109, at *7 (citing Brainard, 216 S.W.3d at 815); see Henson v. So. Farm Bureau Cas. Ins. Co., 17 S.W.3d 652, 653-54 (Tex. 2000). It has further clarified that an "insurer breaches the contract by withholding benefits after the insured has obtained a judgment establishing the liability and underinsured status of the other motorist." Brainard, 216 S.W.3d at 815.
Lastly, Allstate argues that Jordan brought a claim for breach of contract, and "the Declaratory Judgment Act is not available to settle disputes already pending before the court." Nat'l Enter., Inc. v. E.N.E. Props., 167 S.W.3d 39, 43 (Tex. App.-Waco 2005, no pet.). Allstate is correct that "[t]here is no basis for declaratory relief if the party seeking such relief is already seeking a different, enforceable remedy, and a judicial declaration would add nothing to what would be implicit or express in a final judgment for the enforceable remedy" already being sought. Durham Transp. Co. v. Beettner, 201 S.W.3d 859, 873 (Tex. App.-Waco 2006, pet. denied) (quoting Strayhorn v. Raytheon E-Sys., Inc., 101 S.W.3d 558, 572 (Tex. App.-Austin 2003, pet. denied)). However, due to the unique procedure of a UIM case, the duty of an insurance company to pay UIM benefits does not arise until liability is established. Until that time, no remedy for breach of contract against the insurance company is actually enforceable.
We conclude that a declaratory judgment is an appropriate method of establishing the prerequisites to recovery in a UIM benefits case. Accordingly, we overrule Allstate's first point of error.
Although we find that the UDJA is the appropriate procedure for asserting a UIM claim, we nevertheless find that attorney fees cannot be awarded to a plaintiff at this stage of a UIM benefits case.
Under the UDJA, however, "the court may award costs and reasonable and necessary attorney's fees as are equitable and just." TEX. CIV. PRAC. & REM. CODE ANN. § 37.009 (West 2015). Yet, the Texas Supreme Court has explained that an insurer has no duty to pay UIM benefits until the plaintiff has established that she is legally entitled to an amount of damages that exceeds the limits of the UIM's policy. Therefore, the insurer has the right to make the plaintiff meet the liability and damages prerequisites to UIM recovery, through litigation or otherwise. Consequently, requiring an insurer to pay attorney fees for exercising its right to require the plaintiff to establish its entitlement to recovery of UIM benefits under the policy would be inequitable and unjust under the UDJA.
Furthermore, if a plaintiff cannot recover under Chapter 38 until payment has been refused and more than thirty days have expired after presentment, and if presentment under Chapter 38 in a UIM case does not occur "until after the liability of the other motorist and the amount of damages suffered by the insured are determined," Arcababa, 2013 WL 5890109, at *7, then allowing recovery of attorney fees in UIM cases under the UDJA would create a special category of contract cases where attorney fees would be recoverable prior to presentment. The Supreme Court has made it clear that a UDJA claim cannot be used "as a vehicle to obtain otherwise impermissible attorney's fees." MBM Fin. Corp., 292 S.W.3d at 669; see Beettner, 201 S.W.3d at 873.
The trial court awarded attorney fees in the amount of $22,500.00, provided that, "if Defendant does not appeal this Judgment to the court of appeals and time for appeal to that court has expired, Defendant shall be entitled to a remittitur of $15,000.00 against this Judgment for attorney's fees." We find that Jordan was not entitled to recover any attorney fees at this stage of the UIM proceeding. Accordingly, we sustain Allstate's second point of error and modify the judgment to delete the award of attorney fees.
The jury awarded $30,000.00 in damages for Jordan's past medical expenses, but awarded zero damages for past pain and suffering. "If the jury's failure to award damages or the amount of damages awarded is so against the great weight and preponderance of the evidence as to be manifestly unjust, shock the conscience, or clearly demonstrate bias, then a new trial would be required." Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 773
Ford's negligence was not contested at trial. Allstate conceded that Jordan had sustained some injury as a result of the accident, but argued that she was attempting to recover damages for injuries that were not the result of the accident. Allstate encouraged the jury to thoroughly review Jordan's medical records and argued that pre-existing conditions and intervening and superseding causes would be documented there.
Jordan had several pre-existing conditions. In 1983, she had surgery on the lumbar area of her spine. Arthur testified that Jordan was depressed and experienced anxiety, chronic pain, and headaches.
The accident occurred on August 5, 2010. Jordan's 2001 Cadillac Seville was totaled. Pictures of the car revealed damage to its bumper. Jordan testified that she felt a burning sensation in her neck upon impact. She declined medical treatment at the scene, but had Arthur drive her to Scott & White to see her family doctor, Edward Cooney, M.D. Jordan complained to Cooney of pain in her neck and shoulders and minimal pain across her chest. Cooney noted that Jordan had normal range of motion in her neck, no head injury or injury to her arms, and "no significant distress" and concluded that Jordan was suffering from whiplash.
On August 31, 2010, Jordan returned to Cooney for neck pain, although she stated that she was "somewhat better." Cooney noted that, although Jordan had some pain on turning her head to the right, she had good range of motion and no weakness in her upper extremities. Cooney instructed Jordan to continue with chiropractic treatment, anti-inflammatory medication, and muscle relaxers.
On September 14, 2010, Jordan was out "in the garden [when] she tripped over a brick and landed on [another] brick, striking her nose." As a result of that fall, she broke her nose in three places. Jordan was treated at Hillcrest Baptist Medical Center for her broken nose and a minor injury to her finger. Jordan claimed that she fell because she was dizzy from the medication that had been prescribed for the injuries she sustained as a result of the accident.
Between the date of the accident and the time of trial, Jordan visited several doctors and received medical treatment for a variety of symptoms. She continued with
Essentially, her medical treatment after the accident revealed that she suffered a whiplash injury and was improving with good range of motion and no weakness in her upper extremities prior to her intervening fall in her garden. After her fall, she continued to report problems similar to those received in the accident, namely, chronic neck pain, headaches, memory problems, dizziness, problems sleeping, depression, and numbness and tingling in her arms and fingers. At times, the records indicated that her conditions were improving, and at other times, they indicated that her conditions were worsening. Jordan related all of the problems to the accident, and Allstate attributed the majority of the problems to the garden fall, which it believed was an intervening and superseding cause.
At trial, Jordan claimed that she had been unable to turn her head without pain since the accident, that she had pain in her neck, arms, and shoulders, and that her pain was a 10 out of 10.
Jordan admitted that she had spinal surgery before the accident, but claimed that the accident did not aggravate any pre-existing condition. She also testified that, although she sustained a fall which broke her nose, the pain in her neck was the same before the fall as it was after the fall. Although surgery was recommended for Jordan, she testified that she had not scheduled a surgery and had no pending appointments with any doctors or chiropractors.
Hamilton was the only doctor to testify at trial. He stated that he examined Jordan on February 25, 2013, for neck pain and left arm weakness and numbness following a motor vehicle accident. Hamilton testified that he took Jordan's history and conducted a physical examination. His physical examination revealed that Jordan had numbness in her hand, her gait was very abnormal due to her poor balance, and her range of motion was significantly impaired, but her motor examination was
Hamilton explained that the pain associated with a bulging C6-7 disc radiates from the neck down through the arm and can extend all the way down into the fingers and that a protrusion at this point could also cause vertigo and numbness. He conducted another x-ray which revealed degenerative bone spurs at C5 and confirmed the small central disc protrusion at C6-7. Hamilton opined that, based on Jordan's patient history, the accident was the cause of her injuries. Hamilton stated that Jordan needed surgery, that the surgery would cost $15,994.00, and that she would have pain and other symptoms in the future for the rest of her life without the surgery.
During cross-examination, Hamilton agreed that Jordan's decreased range of motion in her neck and her degenerative disc condition could also be due to her age. While he testified that he did not believe that the disc protrusion at C6-7 was a degenerative change, Hamilton testified that he did not know about her fall in her garden. He further admitted that the fall could have caused Jordan's injuries. He also added that it was common for patients to have the same or similar symptoms that Jordan did without having experienced an automobile accident.
During closing arguments, Allstate argued that Jordan's medical records reflected only neck pain and headaches from whiplash, that Jordan's whiplash should have been cured in six to eight weeks, but that the September 2010 fall was the cause of her continued injury.
When, as here, a party attacks "an adverse finding on an issue on which she has the burden of proof, she must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence." Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (per curiam). In making this determination, we "must consider and weigh all of the evidence, and [will] set aside a verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust." Id. (citing Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)). "[T]he jury is the sole judge of the credibility of the witnesses and the weight to be given to their testimony." Golden Eagle Archery, 116 S.W.3d at 761. We are not fact-finders; accordingly, we may not pass upon the witnesses' credibility or substitute our judgment for that of the jury, even if the evidence would clearly support a different result. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998).
First, Jordan argues that, by awarding virtually all of her past medical expenses,
"Matters of pain and suffering ... are necessarily speculative, and it is particularly within the jury's province to resolve these matters and determine the amounts attributable thereto." Lanier v. E. Founds., Inc., 401 S.W.3d 445, 455 (Tex. App.-Dallas 2013, no pet.). "When uncontroverted, objective evidence of an injury is presented and the causation of the injury has been established, courts are more likely to overturn jury findings of no damages for past physical pain and impairment." Id. (citing Blizzard v. Nationwide Mut. Fire Ins. Co., 756 S.W.2d 801, 804-05 (Tex. App.-Dallas 1988, no writ); Byrd v. Westerhof, No. 03-00-00180-CV, 2001 WL 101517, at *3 (Tex. App.-Austin Feb. 8, 2001, no pet.) (not designated for publication)). This is because "the jury cannot ignore uncontroverted evidence of injury in denying any recovery for past physical pain." Schaffer v. Nationwide Mut. Ins. Co., No. 13-11-00503-CV, 2013 WL 2146833, at *2 (Tex. App.-Corpus Christi May 16, 2013, pet. denied) (mem. op.) (citing Golden Eagle Archery, 116 S.W.3d at 775 ("[A] verdict awarding no damages for pain and suffering should [not] be upheld on appeal if there is objective, undisputed evidence of a significant injury and the jury could not have compensated the injured party in some other category of damages.")). "On the other hand, if the indicia of injury are more subjective than objective in nature, appellate courts are generally more reluctant to hold a jury finding of no damages contrary to the great weight and preponderance of the evidence." Lanier, 401 S.W.3d at 455 (citing Blizzard, 756 S.W.2d at 805; Byrd, 2001 WL 101517 at *3); see Schaffer, 2013 WL 2146833, at *2 ("[W]here the evidence of pain is conflicting, scant, or more subjective than objective, a jury's zero-damages finding is not against the great weight and preponderance of the evidence.").
Jordan argues that she suffered headaches and shoulder pain and presented "stacks of objective evidence of medical treatment for neck pain beginning on the day of the accident and continuing for another three and a half years."
"[W]hen there is conflicting evidence of the injury's cause or an alternative explanation for the injured party's reported pain, appellate courts have upheld zero damage findings for physical pain despite
Moreover, without qualification, Jordan's husband, Arthur, testified that Jordan suffered from headaches and chronic pain before the accident. When Jordan originally saw Cooney after the accident, Cooney noted that Jordan was not in significant distress, had normal range of motion in her neck, and did not have any head or arm injuries. The jury also saw the amount of damage caused to the bumper on Jordan's car, which the jury could have considered to be minimal, in spite of the fact that the car was considered a total loss by the insurance company. Cooney determined that Jordan had whiplash and instructed her to return if her pain worsened. Aside from a telephone call to report experiencing side effects from Flexeril, Jordan did not seek further medical treatment for ten days. When she returned to the doctor, she informed him that she had not taken her prescribed pain medication for one week. Although an MRI was recommended, Jordan did not have it done.
In light of this evidence, the jury could have concluded that whiplash was the only injury suffered by Jordan prior to her fall, and "[t]he mere fact of injury ... does not prove compensable pain and suffering." Dollison, 79 S.W.3d at 250. As the Fort Worth Court of Appeals has observed,
State Farm Mut. Auto. Ins. Co., 483 S.W.3d at 264 (first and fifth alterations in original).
Here, the jury could have determined that, if Jordan was in extreme pain, she
Because the jury could have determined that Jordan's pain did not result from the accident, or was not so serious that monetary compensation was required, we conclude that the finding of zero damages for past physical pain is not so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Accordingly, the trial court did not err in denying Jordan's motion for new trial on this ground.
We modify the trial court's judgment by deleting the award of attorney fees and affirm the judgment, as modified.
TEX. INS. CODE ANN. § 1952.103 (West 2009).
