1 John T. Boyd, Chi ef Justice (R et.), Se venth Co urt of Appeals, si tting by

assignment. NO. 07-03-0330-CV IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL E OCTOBER 28, 2004

______________________________ IN RE TEACHER S INSURANC E COMPANY , RELATOR

_______________________________ Before JOHNSON, C.J., and REAVIS , J. and BOYD, S.J. 1
MEMORA NDUM OPIN ION
Teachers Insurance Company seeks issuance of a w rit of mandamus dir ecting the trial judge to vacate that part of his order denying Teachers’ motion to sever an uninsured motorist claim from the neg ligence ac tion against the uninsured motorist. We deny the petition.
BACKGROUND
Real Party in Interest Jan McD onald filed suit alleging that he and his autom obile
were in collis ion with a vehicle being driven by Diana Lane in the course and s cope of her employment

with Ci ty Churc h Outreach Mi nistries ( “the Church”) . McDonald alleged that Lane and the Church were neg ligent in causing the collision and were not c overed by-2-

liability insurance. McDonald was covered by an uninsured/underinsured motorist (UIM) policyissued by

Teachers wh i ch provid e d that, “[Teacher s] wil l pay damag es which a c overed person is l egally entitled to r

ecover from theowner or operator of an un insure d motor vehicle because of bo dily injury . . . or property damage caused by an accident.”
McD o nald sued Lane and the C hurch (“the underlyin g neglig ence claim”) , then amended his petition to add Teach ers a s a party. He claimed tha t Teachers shoul d be liable to him under its UIM p olicy. M cDonald also alleged that Teach ers violated Article 21.55 of the Texas Insurance Cod e by failing to accept or reject h is claim and delaying payment.
Teachers answered and moved the trial court to sever and abate McDonald’s entire claim againstTeachers until resolution of the underlying negligence action. The trial court granted Teachers’ motion regarding the Article 21.55 claim, see In re Trinity Universal Ins. Co. , 64 S.W .3d 463 (Tex.App.–Am arillo 2001, orig. proceeding), but denied the request to sever and abate the UIM c laim. Teachers then filed the ins tant proceeding seeking issuance of a writ of mandamus direct ing the trial court to sever the UIM claim from the underlyin g neglig ence action.
MANDAMUS
A w rit of mandamus is an ext raordinary remedy that

will issue only

(1) to cor rect a clear abuse of di scretion or the viola tion of a duty i mposed by law, and (2) when there is
no other adequate remedy at law. See Canadian Helicopters Ltd. v. W ittig , 876 S.W.2d-3-

304, 305 (Tex. 1994)

. The party seeking mandamus must prove both elements before the writ w ill issu e. Id.
To establish the first req uirement for mandamus r elief, an abuse of discret ion, the complaining party

must demonstrate t hat the trial court acted unreasonably , arbitrar ily, or without reference to g uiding rul es and princi ples. Downer v . AquamarineOperators, Inc. , 701 S.W.2d 238, 241-42 (Tex. 1985).
If a relator es tablishes that an abuse of discr

etion occurr

ed, to be entitl ed to mandamus rel ief, a relator mus t also demonstra te the second of the two-part req uirement for mandamus: that he or she has no ad equate remedy at law toredress theharm. Walker
v. Packer , 827 S.W .2d 833, 840-42 (Te x. 1992). Merely showing reversi ble error w ill not satisfy this req uirement. In re Masoni te Corp. , 997 S.W.2d 194, 199 (Tex. 1999). Thi s second requirement

is met only

when a part

y is in danger of permanently losing s ubstantial rightsif the ruling of

the trial court is all owed to stand. See Canadian Heli copters Ltd. , 876 S.W.2d at 306. The requirement is not sat isfied by merely sh owin g that appeal would invol ve more expe nse or de lay than o btainin g a writ of mandamus. See CSR Ltd. v . Link , 925 S.W .2d 591, 596 (Tex. 1996 ).
ADEQUATE REMEDY
In addressing the second requirement f or i ss uance of mandamus, that it has no adequate remedy at l aw to redr ess the harm, Teacher s does not prov ide authority , but references pa rts of its brief in which it argues that the trial court abused its discretion in failing to sever the UIM and underlying negligence claims. In ass erting that it will-4-

permanently lose substantial rights and will have no adeq uate remedy by appeal abs ent issuance of mandamus, Teacher s, in substance, urg es that (1) t he UIM and under lying negligence claims are not substan tiall y interwoven; (2) because McDonald has not first obtained a settlement or final judgment a gainst Lane and Church, he is not “legal ly entitl ed to recover” under the UIM policy, and Teachers will have to endure the expense and ef fort of preparing and defendin g the UIM claim which might be dis posed of by a prior trial of the negligence claim; and (3 ) Teachers hasa right to defend the claim ag ainst it w ithout introduction of evidence of the pr esence or absence of liability insurance.
Teachers’ assertion that th e claims are substantially interwov en relates to w hether the trial court abused its discretion in failing to sever the claims, not whethe r Teachers will have an adequate remedy by appeal. See Guaranty F ed. Sav. B an k v. Hor seshoe Operating Co. , 793 S.W.2d 652, 658 (Tex. 1990). We do not consider this as sertion in connection w ith whether Teachers has an ade quate remedy by appeal.
Teachers’ second contenti on is, in effect, that McDonald’s

UIM clai m is not ripe for adjudication because he has not obtained a final j udgment or sett lementfrom an uninsured motorist and, therefore, Teacher s will be forced to incur ex penses in defending against a claim that might not mature beca use McDonald might not prevail in his negligence assertionsagainstLane and the Churc h. Teachers’ ar gument fails for

two reas ons. Firs t, the UIM polic

y does not requ ire that McDonald must “rip en” his cla im by obta ining a judgment

againstan uninsured motorist bef ore pursuing a UIM claim against Teachers; it providesthat Teachers will be liable for damages w hich a cov ered person is legally entitled to recover

from the owner

or operator of

an uninsured motor vehicle. The phrase “legally-5-

entitled to recover ,” as used in UIM policies, means that the insu red must be able to show fault on the part of the uninsured motorist and the ex tent of the resulting damages. See Franco v. Allstate Ins . Co. , 505 S.W.2d 789, 792 (Tex. 1974). This legal entitlement can be established in either a d irect acti on against theUIM carrier or in a suit agai nst the uninsured motori st. See Id. ; State Farm Mut. Auto. Ins. Co. v. Matlock , 462 S.W.2d 277, 278 (Tex. 1970). The second reason is that the expense of defen ding McDonald’s suit and prosecuting an appeal, if neces sary, i s not a permanent l oss of substantial rightssuch as warrants issuance of mandamus. See CSR Ltd. , 925 S.W.2d at 956; Canadian Helicopters

Ltd. , 876 S.W.2d at 306.
Teachers references Henson v. S outhern Farm Bur eau Cas. Ins. C o. , 17 S.W.3d 652 (Tex. 2000) in regard to its arg ument that McDonal d’s claim i s not ripe because aUIM claim does not accrue until such time as the third party tortfeasor’s liability

and the amount of dam ages have b een esta blish ed by t ria l. In Henson , howeve r, the issue was not whether suing theUIM insur

er and the uninsured/underinsured tortfeasor in the same su it would result in the UIM carrier’s permanent loss of substantial rights. The i ssue was w hen
a U I M c l a i m a c c r u e d fo r p u r p o s e s o f ca l c u l a t i n g i n t e r e s t

. We do not consider Henson to control the i ssue before us.
Teachers next contends that allow ing the under lying neglige nce claim and theUIM claim to be tried to gether w ill deny it an adequateremedy by appeal because su ch a trial will necessaril y requi re proof of the presence or absence of li ability insurance. Teachers, in a manner, reference s In re Koehn , 86 S.W.3d 363 (Tex .App.–Tex arkana 2002, o rig. proceeding). Koehn , however, involved assertions by the allegedly underinsured negligent-6-

tortfeasor

that tryi ng the UIM claim and the neglig ence claim tog ether woul d prejudice t he tortfeasor

because the pres en ce and amount of the tortfeasor’s liability insurance would be introduced i nto evidence. See T EX . R. E VID . 411. In the m atte r before us thereis no claim by Lane or t he Church that they wi ll be prejudi ced by evidence th at they

had no, or insufficient, liabilit

y insuran ce to cover

McDonald’s

damages from the col lision. The i ssue presented in Koehn is dissi milar to that presented by Teachers.
Fina lly, Tea cher s urge s tha t tria l of t he UI M and unde rlyi ng negli genceclai ms together will prejudice Teacher s because the ex istence of insur ance wil l be injec

t ed into the case, the jury will be more likely to find Lane and the Church neglige nt an d award higher damages, and the l ikelihood that Teachers’ UIM liabilit

y woul d be trigg ered wil l be increased. Whatev er the merit s of Teachers’ ar gument, we consider it to have been foreclosed by the Supr

eme Court. See Franco , 505 S.W.2d at 792; Matlock , 462 S.W.2d at 278

. We conclud e that Teachers has not met its burden to p rove that t rial of the UIM claim and the negligence claim in the same proceeding would deny it an adequate remedy atlaw. Our conclus ion makes it unne cessary to address Teachers’ claim that th e trial court abused its discr

etion in refusi ng to sever the UIM c laim from the unde rlyin g negligence claim. See T EX . R. A PP . P. 47.1. The petition for w rit of mandamus is denied.
Phil Johnson Chief Justice