In Brainard v. Trinity Universal Insurance Company the Plaintiff was killed when his vehicle was struck by an oilfield truck. He left a widow and five children. The well service company that employed the at-fault truck driver was underinsured and Brainard's family and Estate made a claim for underinsured motorist benefits against their own carrier, Trinity Universal Insurance Company. Trinity refused to pay the benefits.
A claim for uninsured motorist benefits is a suit on a contract. Pursuant to Texas Civil Practices and Remedies Code Section 38.002 the successful litigant in a suit on a contract is entitled to recover attorney fees. In order to recover attorney fees the Plaintiff must be represented by counsel, present the claim to the insurance company, and the insurance company must have failed to pay the claim within 30 days of presentment. There is no question that Brainard made a UIM claim and that Trinity Universal failed to pay the claim within 30 days. The jury rendered against Trinity which included underinsured motorist benefits and attorneys fees. Trinity Universal claimed that they simply had no duty to pay policy benefits until there was a legal determination and thus the obligation to pay attorney fees would not accrue unless they failed to pay benefits within 30 days after a judgment became final. The Texas Supreme Court agreed thus causing consumers to bear the burden of the attorneys fees necessary to force underinsured motorist carriers to pay even the most obvious and legitimate of claims.
The Brainard decision allows UIM carriers to use litigation as leverage in an attempt to pay their insureds less uninsured/underinsured motorist benefits than the insureds are entitled to receive.
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