In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth

___________________________

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 Womack, JJ.

Memorandum Opinion by Justice Womack

ALLSTATE COUNTY MUTUAL INSURANCE COMPANY, Appellant

V.

CHRISTINE HILL, Appellee
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MEMORANDUM OPINION

I. INTRODUCTION

Appellee Christine Hill brought suit against Appellant Allstate County Mutual 

Insurance Company to recover underinsured motorist (UIM) benefits under her 

automobile policy. The trial court granted Hill declaratory relief and attorney’s fees. 

On appeal, Allstate argues that the trial court erred in allowing Hill to use the 

Uniform Declaratory Judgments Act (UDJA) in connection with her claim for UIM 

benefits and by awarding her attorney’s fees. See Tex. Civ. Prac. & Rem. Code Ann. 

§§ 37.001–.011. In light of the Texas Supreme Court’s recent decision in Allstate Ins. 

Co. v. Irwin, No. 19-0885, 2021 WL 2021446, at *1, *6 (Tex. May 21, 2021), we will 

affirm.

II. BACKGROUND

Hill was a passenger in a car driven by Joshua Warthen which was “t-boned” at 

an intersection by a car driven by Rafael W. Mendes on April 13, 2016. Hill later

brought suit against Mendes for injuries she sustained in the collision and against 

Warthen’s insurer, Farmers County Mutual Insurance Company, and her insurance 

company, Allstate, for UIM coverage. 

Prior to trial, Hill settled with Mendes and Farmers and non-suited her claims 

against them. Hill then proceeded to trial against Allstate for declaratory relief under 

the UDJA for past and future medical care expenses, past and future physical pain and 

mental anguish, past and future disfigurement, and past and future physical 
3

impairment.1 Specifically, Hill requested that the following be established by

declaratory judgment:

a. she has an uninsured/underinsured policy with Allstate;

b. she is entitled to uninsured/underinsured motorist coverage under 

that policy;

c. Mendes was an underinsured driver;

d. Mendes was negligent and his negligence[] caused the collision and 

Hill’s damages;

e. Hill’s damages are covered under the Allstate policy;

f. Hill has satisfied or is satisfying all policy conditions necessary for her 

to recover under the policy;

g. the total amount of the damages Hill incurred as a result of the crash;

h. the amount of prejudgment interest that Mendes would owe;

i. the amount of underinsured motorist insurance benefits Allstate is 

obligated to tender under their policy to [Hill]; and

j. costs and reasonable and necessary attorney fees as are equitable and 

just under C[ivil] P[ractice and] R[emedies] C[ode] ch. 37. 

Before trial began, the parties stipulated that Mendes was liable for causing the 

collision, that Hill was a “Covered Person” under an Allstate policy, and that the 

vehicle driven by Mendes was an “Underinsured motor vehicle” as defined by the 

1To establish an insurer’s liability to an insured under a UIM policy, an insured 

must first obtain determinations of the third-party driver’s liability and the amount of 

damages. In re State Farm Mut. Auto. Ins. Co., Nos. 19-0791, 19-0792, 2021 WL 

1045651, at *5 (Tex. Mar. 19, 2021) (orig. proceeding).
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policy. The parties also stipulated, “No defense or basis for denial of benefits exists 

other than that . . . Hill is required to prove at trial that she is entitled to benefits 

under the Allstate Policy in excess of the amount previously paid by the policy 

covering . . . Mendes.” Finally, there was an agreement to “bifurcate” the attorney’s 

fees issue from the other issues in the case and have it heard by the trial court after 

the jury verdict was received on the amount of damages, if any, Hill sustained in the 

motor vehicle collision. 

Ultimately, the jury determined that Hill was entitled to $126,760.35 in past 

damages and $211,000 in future damages as a result of the motor vehicle collision. 

After the verdict, Hill sought to recover her attorney’s fees in a motion for entry of 

judgment that included her attorney’s “Declaration as to Attorney’s Fees.” The trial 

court entered judgment that Hill was entitled to recover from Allstate:

• The sum of $30,000, which is the amount Hill is legally entitled to 

recover from Mendes, reduced to the policy limits in the insurance 

policy;

• An award of $42,668.75 in reasonable and necessary attorney’s fees and 

costs incurred by Hill, pursuant to the UDJA. If Allstate appeals the 

judgment and Hill prevails on appeal, Hill recovers additional attorney’s 

fees: (a) in the event Allstate appeals to an intermediate appellate court, 

an additional $27,500, with an additional $5,000 for oral argument; (b) in 

the event Allstate files a petition for review with the Texas Supreme 

Court, an additional $5,000 with an additional $15,000 for merits briefing 

and an additional $5,000 for oral argument;

• All of Hill’s costs of court; and

• Post-judgment interest. 
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Allstate filed a motion for new trial, or in the alternative, a motion to modify the 

judgment, which was overruled by operation of law. This appeal followed. 

III. DISCUSSION

Allstate’s issue in this case revolves around whether a declaratory judgment 

action was the proper cause of action for a policyholder to secure UIM benefits. As 

noted in Allstate’s brief, “This case contains identical issues as were involved” in 

Allstate Ins. Co. v. Irwin, 606 S.W.3d 774 (Tex. App.—San Antonio 2019), aff’d, 2021

WL 2021446, which it argues was wrongly decided. 

The Texas Supreme Court has now resolved this issue by affirming the holding 

in Irwin and concluding that the UDJA can be used to determine an insurance carrier’s 

liability for benefits under a UIM policy. 2021 WL 2021446, at *1. The court 

reasoned:

The Act’s application here to determine the prerequisites for, and 

existence of, the insured’s UIM claim not only served a useful purpose 

but also terminated the controversy between the parties. The UDJA was 

thus properly invoked to determine the parties’ status and 

responsibilities under the UM/UIM policy prior to its breach. Tex. Civ. 

Prac. & Rem. Code § 37.003.

Id. at *4. With regard to the award of attorney’s fees, the supreme court noted that, as 

part of the declaratory judgment remedy,

the Legislature has provided for the award of “reasonable and necessary 

attorney’s fees as are equitable and just.” Tex. Civ. Prac. & Rem. Code 

§ 37.009. Thus, when the Act applies, attorney’s fees may be available. 

Unlike Chapter 38, Chapter 37’s UDJA does not require an award of 

attorney’s fees to anyone; rather, it “entrusts attorney fee awards to the 
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trial court’s sound discretion.” Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 

1998).

Id. at *6. Because the supreme court “d[id] not agree that the award [in Irwin was]

erroneous or otherwise violate[d] the American Rule,” it affirmed the trial court’s 

judgment. Id.

Here, in Allstate’s only issue, it asks, “Did the trial court err in allowing Hill to 

unnecessarily invoke the UDJA in connection with her claim for U[I]M benefits and 

by also awarding her attorney’s fees under the statute?” Relying on Irwin, we answer 

the question in the negative. See id. Accordingly, we overrule Allstate’s issue.

IV. CONCLUSION

Having overruled Allstate’s issue, we affirm the trial court’s judgment.

/s/ Dana Womack

Dana Womack

Justice

Delivered: July 15, 2021