The addition of an underinsured motorist claim to a Texas tort claim often adds a third and sometimes a fourth choice of venue. Texas venue rules provide that a tort claim may be brought both where the accident took place or where the tortfeasor resides at the time of the occurrence. However, an underinsured motorist claim is a suit on a contract and may be brought in the county of the corporate defendants’ principal place of business or where the contract is to be substantially performed.
Consider for example the situation where a driver from Gilmer and a driver from Longview both go to Tyler to shop and become involved in an auto accident caused by the Longview driver. Based on these facts alone the venue rules would allow the lawsuit to be filed in either Smith County or Gregg County…two not so great choices of venue from an injured persons’ perspective. However, add to this scenario the fact that the Gilmer resident purchased underinsured motorist coverage from an automobile liability insurance company with a principal place of business in Dallas, Texas. The place of performance of an automobile liability policy has been held to be in the county where the insured lives. Thus, the claim could be filed not only in Gregg and Smith counties but also in Upshur and Dallas counties. Under Texas venue rules if venue is proper as to any Defendant then it is deemed proper as to all Defendants. Thus the claim could be properly filed in Upshur County which is a much more claimant friendly choice of venue.
The Defendants may challenge the Plaintiff’s choice of venue. However, Texas Rule of Civil Procedure 51(b) provides that: “Whenever a claim is one heretofore cognizable only after another claim has been prosecuted to a conclusion, the two claims may be joined in a single action;….” The bringing of a tort claim and an underinsured motorist claim in the same cause of action falls squarely within the authorization of Rule 51(b).
Defendants sometimes seek to sever the underinsured motorist claim thereby eliminating an undesirable(from the Defendant’s perspective) choice of venue. However, the Texas Supreme Court has held that when considering a motion to sever:
“A trial court properly exercises its discretion in severing claims when:
1) The controversy involves more than one cause of action;
2) The severed claim is one that could be asserted independently in a separate lawsuit; and
3) The severed actions are NOT so interwoven with the other claims that they involve the same facts and issues.”
Guaranty Federal Savings v. Horseshoe Operating Company, 793 S.W.2d 652, 658 (Tex. 1990).
If the Trial Court follows the law an auto accident victim should be able to litigate both the underlying auto claim and the underinsured motorist claim in the victim’s home county.