## In the Court of Appeals Se cond Appellate District of Texas

at F ort Wort h

___________________________ No. 02

- 20

- 00174

- CV

___________________________

On Appeal from the 352nd District Court Tarrant County, Texas Trial Court No. 352

- 291883

- 17

Before Birdwell, Bassel, and Wom ack, JJ. Memorandum Opinion by J ustice Womack 

### A LLSTATE 

### C OUNTY 

### M UTUAL 

### I NSURANCE 

### C OMPANY 

### , Appellant

V



### . C HRISTINE 

### H ILL 

### , Appellee2 MEMORANDUM OPINION

I. I NTRODU CTION Ap pellee Christine Hill brought suit against Appellant Allstate County Mutual Insurance Company to recover u nder insured motorist (UIM) benefits under her

automo bile pol

icy. The trial court gra nted Hill de claratory relief and attorney ’ s fees. On app eal , Allstate argues that the trial court erred in allowing Hill to use the
Uniform Declaratory Jud gment s Act (UDJA) in connection with her claim for UIM benefits and by awarding her attorne y ’ s fees. See Tex. C iv. Prac. & Rem. Code Ann. § § 37.001

– .011

. I n light of the Texas Supreme Court ’ s recent decision i n Allsta te Ins.
Co. v. Irwin , No. 19

- 0885, 2 021 WL 2021446 , at *1, * 6 (Tex. May 21, 2021) , we will
affirm.

II. B ACKGROUN D Hill was a pass enger in a car driven by J o shua Wa rthen wh ich was “ t

- boned ” at
an inter section by a car driven by R afael W . Mendes on April 13 , 2016. Hill later brought suit against Mendes for inj uries she sustained in the collision and against
Warthen ’ s insurer , Farmers County Mutual Insurance Company, and her ins urance

c ompany, All state , for UIM coverage

. Prior to trial , H ill settled with Mendes and Farmers and non

- suited her claims

ag ainst them

. Hill then proceeded to trial against Allstat e for de c l aratory r elief under

th e UDJA for past and fu ture med ical care expens es , past and future ph ysical pain and

m ental anguish, pas t an d future dis figurement , and past and future physical3

impairment. 1 Specifically, Hill requested that the following be establ i s hed by
declarator y judgment :

a. she has an uninsured/unde rinsured policy with A llsta te;
b. she is entitled t o un insu red /underinsured motorist coverage under that policy;

c. Mendes was an underinsured driver;
d. Mendes w as negligent and his negli ge n c e [ ] caused the c ollision and Hill ’ s dama g es;

e. Hi ll ’ s damages are cover ed un der the Alls tate policy;
f. Hill has satisfied or is satisfying all policy conditions necessary for her to recover under the policy; g. the tot al amount of the damages Hil l incurr ed as a result of the cr a sh;
h. the amo unt of prejudgment int erest that Mendes would owe;
i . the a mount of underinsured motorist insurance benefits Allstate is obligated to t ender under their policy to [H ill]; and j . costs and rea s on able and n e cessar y attorney fees a s are e q uitable and just under C[ivil] P[ racti ce and] R[emed ies ] C[ode] ch. 37. Before trial bega n , the parties stipulated th at Mendes was liable for causing the

collisi on , that Hill was a “ Cov ered Person ” under an Allstate poli c y , and that the

v ehi cle d riven by Mendes was a n “ Underinsured moto r vehicle ” as def ined by the

1 T o establish an insurer ’ s lia bility to an insured under a UIM policy, an insured must first obtain dete rmination s of the third

- party driver ’ s liability and the amount of damages. In re State Farm M ut

. Auto. Ins. Co. , Nos . 19

- 079 1, 19

- 0792, 2021 WL 1 045651, at *5 (Tex. Mar. 19, 2021) ( orig. proceeding).4

policy

. The parties a lso stipulated , “ No defense or basis for denial of benefits exists

other than that

. . . Hill is required to prove at trial th at she i s en t i tled to benefits
under the Allstate P olicy in excess o f the amount previously paid by the policy covering

. . . Mendes. ” Fin ally , there was an agreement t o “ bifurcate ” the attorney ’ s
fee s issue fr om the other issues in the case and ha ve it he ard by the t r ial court after the jury verdi ct wa s received on the amount of damages, if any, Hill sustained in the
motor vehicle collision

. Ultimately, the ju ry determined that Hill was e ntitled to $126,760.35 in past damages and $211,000 i n future d a mages as a resu l t of the motor vehicle collision.
After the ver d ict, Hill sought to recover her attorney ’ s fee s in a moti on for entry of judg ment that included her attorney ’ s “ Decla ration as to Attorney ’ s Fees. ” The trial

co urt ente red judgment that Hill was e nt itled t o recover from Allstate:

• The sum of $30,000 , which is the amount Hill is legally entitled to
recov er from Mendes, reduced to the policy limits in the insuranc e policy;

• An award of $42,668. 75 in rea sonable and n ecessary at torney ’ s fees and costs incurred b y Hill, pursuant to the U DJA. If Allstate appeals the judgment and Hill prevails on appeal, Hill recover s additional attorney ’ s fees : (a) in the event Allsta te appeals to an intermediate appellate court, an add itional $27 ,500, w

ith an additional $5,000 fo r oral argument; (b) in t he event Allstate files a petition for review with the Texas Supreme Cour t, an additional $5,000 with an additional $15,000 for merit s briefing and an additional $5,000 for oral argument ;

• Al l o f H ill ’ s costs of court; and

• Post

- ju d gment interest.5

Allstate filed a moti on for new trial , or in the alternative, a mot ion to modify the j udgment , which was overruled by operat ion of law

. This appeal followed

. III. D ISCUSSION
Allstate ’ s issue in th is case revolve s ar ound whether a d e claratory judgment action was the proper cause of ac tion for a policyholder to secure UIM benefits. As

no ted in Allstate ’ s brief, “ This case conta ins iden ti c al issues as were in volved ” in
Allstate Ins. Co. v. Irwin , 606 S.W.3 d 774 (Tex. App.

— San Antonio 2 019 ), aff ’ d , 2021

WL 20214 46 , which it argues was wrongly decided

. The Texas Sup reme Court has now r esolved this is sue by affirmin g the holding

in Irwin and conclud ing that the U DJA can be used to determine an insurance carri er ’ s liability for be nefits under a UIM policy

. 2021 WL 2021446, at *1. The court
reasoned:

T he Act ’ s application here to determi ne the p rer equisit es for, and existence of, the insured ’ s UIM claim no t only served a useful purpose but also terminated the controversy be tween the par t ies . The UDJA was thus properly invo ked to d etermine the parties ’ status an d responsibilities under th e UM/UIM po licy pr ior to its breach. Tex. Civ

. Prac. & Rem. Code § 37 .0 03.
Id. at *4. With regard to the award of attorney ’ s fees, the s upreme court n oted that , as part of the declaratory judgment remedy, the Legislat ure has p rovided for the award of “ r easonabl e a nd necessary attorney ’ s fee s as ar e equitable and just. ” T ex. Civ. Pr ac. & Rem. Code § 37.009. Thus , when the Act applies, att o rney ’ s fees m ay be available. Unlike Chapter 38, Chapter 37 ’ s UDJA does not req uire an a ward of attorney ’ s fees to anyone; rat her, it “ entrust s attor ney fee awards to the6

trial court ’ s sound discre tion. ” Bocquet v. Herring , 972 S.W.2d 19, 21 (Tex. 1 998)

. I d. at *6. Because the supreme court “ d[id] not agree that the award [in Irwi n wa s]

erroneous or otherwise v iol ate [d] the American Rule, ” it affirmed the trial court ’ s judgment. Id.

Her e, in Allstate ’ s on ly issue, it ask s, “ Did the trial court err in allow ing Hil l to unnecessarily invo ke the UDJA in connection with her claim for U [I] M b enefits and by also award ing her attorney ’ s f ees under th e statute ? ” Relying on Irwin , we answer the qu estion in the negative. See id. Accordingly, we overrule Allst a te ’ s issue

. I V

. C ONCLU SION Having overruled Allstate ’ s issue , we affirm the tri al c ourt ’ s judgment.

/s/ Dana Womack

Dana Woma c k Justic e
Delivered: July 15 , 202 1