Many people routinely drive without liability insurance. When an uninsured motorist causes a collision, the injured victim’s potential recovery is usually limited to the UM/UIM policy limits. Unfortunately, the Texas Supreme Court’s Brainard opinion has made it easier for UM/UIM carriers to deny uninsured motorist claims by preventing claimants from recovering attorney’s fees under Chapter 38 of the Texas Civil Practice & Remedies Code. Last week’s Inclan opinion, though, provides a new avenue for South Texas UM/UIM plaintiffs to recover attorney’s fees when a carrier wrongfully denies a claim.

In Inclan, the plaintiff filed a lawsuit against his UM/UIM carrier to recover benefits under his policy following a collision with an uninsured driver. In his petition, the plaintiff sought recovery under Chapter 37 of the Texas Civil Practice & Remedies Code (also known as the Uniform Declaratory Judgments Act or “UDJA”). Specifically, the plaintiff requested a declaratory judgment specifying the amount of damages—and of attorney’s fees—that the UM/UIM carrier was obligated to pay. The jury returned a favorable verdict that included an award for attorney’s fees under the UDJA, and the carrier subsequently appealed.

The 13th Court of Appeals’ Inclan opinion followed the precedent set last summer by San Antonio’s 4th Court of Appeals. In Irwin, the 4th Court of Appeals rejected the carrier’s argument that the UDJA should not be used to grant attorney’s fees to a prevailing plaintiff in UM/UIM litigation. In a memorandum opinion, Justice Longoria of the 13th Court of Appeals stated, “Under [the UDJA], the trial court has discretion to award attorney’s fees as are equitable and just. Therefore, the trial court did not err in awarding [the plaintiff] attorney’s fees in connection with its UM/UIM claim.”

Thus, a UM/UIM plaintiff living in the 20 counties that make up the 13th Court of Appeals—including Cameron, Hidalgo, and Willacy Counties—may seek and recover attorney’s fees against a carrier under the UDJA. While the Texas Supreme Court will ultimately have the final say on this issue, the Irwin and Inclan opinions provide valuable ammunition for crash victims and their injury lawyers when a carrier denies or undervalues an uninsured motorist claim unfairly.

If an uninsured or underinsured driver has injured you or a loved one, you have enough things to worry about. Do not let navigating through the complexities of a UM/UIM policy be one of them. We deal with the insurance company so you can focus on getting your life back to normal. You have one chance to do this; make the right choice by choosing the right attorney. Call us at (956) 291-7870 or email us at contact@rdjlawyer.com for a free consultation and case evaluation.