Opinion filed March 11, 2010

In The

Eleventh Court of Appeals 

__________

No. 11-08-00097-CV

__________

MID-CENTURY INSURANCE CO. OF TEXAS, Appellant

V.

SYNTHIA MCLAIN, Appellee

On Appeal from the 42nd District Court

Taylor County, Texas

Trial Court Cause No. 45,958-A

 M E M O R A N D U M O P I N I O N

Synthia McLain, the insured, sued Mid-Century Insurance Co. of Texas and its agent, 

Larry Chapman, after her car wreck with Becky Morey. McLain had uninsured/underinsured 

coverage under a policy written by Mid-Century and sold to her by Chapman. McLain’s lawsuit

was for contractual claims under the policy and for extra-contractual and bad faith claims. The 

trial court granted Mid-Century’s motion to sever and ordered that McLain’s extra-contractual 

and bad faith claims against Mid-Century and Chapman be severed from the underlying car 
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accident claims. The extra-contractual and bad faith claims were assigned Docket No. 45,958-B. 

McLain’s claim in this case, made pursuant to her insurance policy, was contractual in nature. 

Henson v. S. Farm Bureau Cas. Ins. Co., 17 S.W.3d 652 (Tex. 2000); Franco v. Allstate Ins. Co., 

505 S.W.2d 789 (Tex. 1974). Thus, this case was to establish the contractual obligation, if any, 

of Mid-Century to pay under the uninsured/underinsured motorist (UIM) provision of McLain’s 

insurance policy. 

A jury found that Morey’s negligence was the cause of the accident and awarded McLain 

$116,726: $5,000 for physical pain and mental anguish sustained in the past; $0 for pain and 

mental anguish in the future; $80,000 for loss of earning capacity sustained in the past; $10,000 

for loss of earning capacity in the future; $500 for physical impairment sustained in the past; $0

for physical impairment that would be sustained in the future; $11,226 for medical care in the 

past; and $10,000 for future medical care. The trial court also awarded prejudgment interest. 

Morey had settled with McLain and did not participate in the trial.

 After the verdict, Mid-Century put on evidence that its policy limit was $20,000, that it 

had made personal injury payments (PIP) of $2,500, that it had made a settlement offer of 

$1,500, and that McLain had received a settlement of $21,500 from Morey. At a hearing on 

entry of judgment, Mid-Century again urged that these amounts be taken into consideration, 

citing Brainard v. Trinity Universal Insurance Co., 216 S.W.3d 809 (Tex. 2006); Henson, 17 

S.W.3d 652; and State Farm Mutual Automobile Insurance Co. v. Norris, 216 S.W.3d 819 (Tex. 

2006). Mid-Century argued that its liability under the UIM provision should not exceed 

$20,000, pointing out that the extra-contractual claims had been severed and were to be tried 

later. Despite the fact that it was her burden of proof, McLain contended that Mid-Century had 

not introduced McLain’s policy during the jury trial and that it had failed to establish the amount 

of the settlement from Morey. And despite well-settled law, McLain convinced the trial court to 

enter judgment against Mid-Century for the entire $116,726 plus prejudgment interest. The trial 

court also denied Mid-Century’s motion for a judgment n.o.v. and for a new trial. 

Mid-Century presents four issues on appeal: that the trial court erred in entering judgment 

for the entire $116,726 in this first phase of a UIM case; that the evidence was legally and 

factually insufficient to support the award of lost earning capacity; that the evidence was legally 
3

and factually insufficient to support the award of future medical expenses; and that it was 

incurable jury argument for counsel for McLain to argue in closing that Mid-Century and its 

lawyer were trying to “deceive” the jury because they believed the jury was “ignorant” and that 

the jury should serve as the conscience of the community. This argument was made after 

counsel for McLain had repeatedly injected the idea of bad faith on the part of Mid-Century 

during the entire trial from the time of voir dire to closing. The first, second, and fourth issues 

are sustained, and the case is remanded for a new trial.

UIM Coverage

The Texas Insurance Code requires insurers to offer Texas motorists UIM coverage and 

mandates that such coverage:

[P]rovide for payment to the insured of all amounts that the insured is legally 

entitled to recover as damages from owners or operators of underinsured motor

vehicles because of bodily injury or property damage, not to exceed the limit 

specified in the insurance policy, and reduced by the amount recovered or 

recoverable from the insurer of the underinsured motor vehicle.

TEX. INS. CODE ANN. § 1952.106 (Vernon 2009).

1

McLain’s counsel erroneously argued to the trial court, and now to this court, that it was 

Mid-Century’s burden to introduce McLain’s policy and the amount of any settlement from 

Morey into evidence. The long established Texas law is that a plaintiff seeking recovery against 

an insurance company for injuries resulting from the negligence of an uninsured motorist must 

plead and prove that, at the time of the accident, the plaintiff was protected by uninsured motorist 

coverage. Members Mut. Ins. Co. v. Olguin, 462 S.W.2d 348, 350 (Tex. Civ. App.—El Paso 

1970, no writ); Members Mut. Ins. Co. v. Clancy, 455 S.W.2d 447 (Tex. Civ. App.—

San Antonio 1970, no writ); Pan Am. Fire & Cas. Co. v. Loyd, 411 S.W.2d 557, 560 (Tex. Civ.

App.—Amarillo 1967, no writ). In the retrial of this case, McLain should introduce a copy of 

her policy and establish her UIM coverage if she continues to contend that the policy introduced 

by Mid-Century was not her policy at the time. 

 

1Article 5.06-1(5) of the Insurance Code, which was a former version of Section 1952.106, was in effect when McLain 

filed this suit. See former TEX. INS. CODE art. 5.06-1(5) (1981). However, because the legislature made no substantive changes 

to Article 5.06-1(5) in enacting Section 1952.106, we refer to the current statute in the body of the opinion.
4

Before an insured is entitled to recover under a UIM policy provision, the insured must 

establish the tortfeasor’s liability and the damages resulting from the tortfeasor=s negligence. 

The UIM insurer is under no contractual duty to pay benefits until the insured obtains a judgment 

establishing the liability and underinsured status of the other motorist. Brainard v. Trinity 

Universal Ins. Co., 216 S.W.3d 809 (Tex. 2006); Henson, 17 S.W.3d at 654.2 A motorist is 

underinsured if his or her liability insurance is insufficient to pay for the injured party’s actual 

damages. Stracener v. United Servs. Auto. Ass’n, 777 S.W.2d 378, 380 (Tex. 1989). Recovery 

from UIM coverage may be had only for damages sustained in an amount in excess of the total 

amount of the tortfeasor’s liability coverage. Section 1952.106; Olivas v. State Farm Mut. Auto.

Ins. Co., 850 S.W.2d 564, 565 (Tex. App.—El Paso 1993, writ denied). It was McLain’s burden 

to establish these elements to prove that Morey was at fault and underinsured and that McLain’s 

damages exceeded the amount recovered or recoverable from Morey.

McLain argues that Mid-Century was required to plead, as affirmative defenses, policy 

limits and any offset such as Morey’s coverage limits and Mid-Century’s PIP payments. For her 

position, McLain cites Southwestern Fire & Casualty Co. v. Larue, 367 S.W.2d 162 (Tex. 1963). 

However, Larue involved an action on a promissory note against the maker of the note. 

McLain’s citation of Brown v. American Transfer & Storage Co., 601 S.W.2d 931 (Tex. 1980),

and TEX. R. CIV. P. 94 on affirmative defenses is also not in point. McLain has confused a 

contractual condition precedent with an affirmative defense. The court of appeals in Henson

held that the specific language in insurance contracts B “legally entitled to recover” B creates a 

condition precedent to a contractual obligation by insurance companies to perform under a UIM 

provision. Henson v. Tex. Farm Bureau Mut. Ins. Co., 989 S.W.2d 837, 839 (Tex. App.—

Amarillo 1999), aff’d, 17 S.W.3d at 654. It was McLain’s burden to satisfy the condition 

precedent by establishing that she was “legally entitled to recover” damages from Morey and that 

Morey was an underinsured driver. 

 

2

If the insured proceeds against the uninsured motorist without the consent of the insurance company, the judgment in 

that case will not be conclusive; the liability of the uninsured motorist and damages will have to be relitigated in the suit against 

the insurance company providing the uninsured/underinsured coverage. Criterion Ins. Co. v. Brown, 469 S.W.2d 484, 485 (Tex. 

Civ. App.—Austin, writ ref’d n.r.e.).
5

After the jury verdict, Mid-Century correctly established that it had paid PIP benefits and 

made a settlement offer to McLain. As pointed out in Brainard, those amounts are to be taken 

into consideration in determining the amount of prejudgment interest (that would have been 

owed by the underinsured motorist) under the “declining principal” formula. Brainard, 216 

S.W.3d at 816. In Brainard, the supreme court held that UIM insurance covers prejudgment 

interest that the underinsured motorist would have owed to the insured and that prejudgment 

interest constitutes part of the damages caused by the underinsured motorist. On the other hand, 

the supreme court in Henson held that, because UIM insurers do not breach their contractual 

obligation to pay until tort liability is established, prejudgment interest against the UIM insurer 

does not begin running until the liability of the uninsured/underinsured motorist is established. 

See also Menix v. Allstate Indem. Co., 83 S.W.3d 877 (Tex. App.—Eastland 2002, pet. denied).

McLain attempts to distinguish Brainard, Henson, and Nationwide Mutual Fire

Insurance Co. v. Voight, 971 So. 2d 239 (Fla. Dist. Ct. App. 2008), the cases cited by MidCentury, by arguing that in this case Mid-Century undertook the defense of Morey and thereby 

undertook a duty to plead and prove the amount of money paid by Morey or her insurer and a 

duty to plead and prove McLain’s UIM coverage. We disagree. Mid-Century simply put 

McLain to her burden of proof that she had to establish a contractual obligation of Mid-Century 

to pay an amount under the UIM provision. 

The trial court erred in entering judgment against Mid-Century for $116,726. Despite 

McLain=s failure to introduce the policy, Mid-Century did introduce a copy of the policy with its 

provision for $20,000 in UIM benefits. At the outset of trial, counsel for McLain told the court 

that the underinsured motorist had paid McLain $20,100, that Mid-Century had paid her $2,500 

in PIP benefits, and that the UIM limit in her policy was $20,000. The judgment against MidCentury should not have exceeded $20,000. Mid-Century’s first issue is sustained. We turn next 

to McLain’s burden of proof on her damages from Morey’s negligence. McLain had the burden 

to establish that her damages exceeded $22,600 ($20,100 settlement from Morey and $2,500 PIP 

benefits from Mid-Century). 
6

Loss of Earning Capacity

In its second issue, Mid-Century argues that the evidence was legally and factually

insufficient to support the jury award of $80,000 for past lost earning capacity and $10,000 for 

future lost earning capacity. 

Loss of earning capacity is the plaintiff=s diminished capacity to earn a living. See 

Plainview Motels, Inc. v. Reynolds, 127 S.W.3d 21, 35 (Tex. App.—Tyler 2003, pet. denied); 

Koko Motel, Inc. v. Mayo, 91 S.W.3d 41, 51 (Tex. App.—Amarillo 2002, pet. denied). Loss of 

earnings is the loss of actual income due to an inability to perform a certain job that the person 

held before the injury. Reynolds, 127 S.W.3d at 35. Loss of earning capacity is the proper 

measure of damages, not loss of earnings, because even an unemployed person can recover for 

lost earning capacity. Id. However, evidence of loss of earnings is admissible to establish loss 

of earning capacity. Id. at 35-36. When a plaintiff is employed at the time of his or her injury, 

the extent of his or her loss can best be shown by comparing his or her actual earnings before and

after the injury. See Strauss v. Cont’l Airlines, Inc., 67 S.W.3d 428, 436 (Tex. App.—Houston

[14th Dist.] 2002, no pet.).

McLain had the burden to introduce evidence from which a jury could reasonably 

measure in monetary terms her earning capacity prior to the injury. Strauss, 67 S.W.3d at 435. 

Although the amount of damages resulting from impairment of a plaintiff’s earning capacity is 

largely within the discretion of the jury, the jury should not be left to mere conjecture when facts 

appear to be available upon which the jury could base an intelligent answer. Id. The damages 

need to be proved with that degree of certainty of which the case is susceptible. Id. at 436.

Mid-Century correctly states that McLain was required to prove (1) her earning capacity 

before the accident in April 2003 and (2) her earning capacity after the accident and before trial 

in November 2007, as well as her earning capacity in the future. Mid-Century concedes that 

there was some evidence through McLain’s testimony as to the first element, but contends that 

evidence of the second element was lacking. 

McLain testified that, before the accident, she worked forty hours a week at $10 an hour 

as an office aide for Hibbs & Todd, a civil engineering company. Her duties included filing and 

making copies of manuals that went with blueprints to the job site. In addition, she said that she 
7

worked “approximately eighteen hours a week at the Buffalo Gap Store.” There, she made $6 an 

hour. McLain stated that her back pain became unbearable because both jobs kept her on her 

feet most of the time. According to McLain, “very shortly after the wreck [she] ended up 

leaving the Buffalo Gap store.” She believed that she left Hibbs & Todd during the first part of 

2004, but she “would have to check to make sure.” Her testimony was evidence of her earning 

capacity before the accident, but it was not the degree of certainty of which this case was 

susceptible. McLain could have easily provided her form W-2s from her employers, statements 

from her employers, and her tax returns.

If one assumes that McLain worked forty hours a week every week for Hibbs & Todd 

and eighteen hours a week every week for the Buffalo Gap store, she would have earned $508 

per week or $26,416 per year. McLain acknowledged that she did not work forty hours a week 

every week for Hibbs & Todd because sometimes she was sick, had to take care of her children,

or took time for a vacation.

Within a few weeks of leaving Hibbs & Todd, McLain took a job as a substitute teacher 

at the Jim Ned school. As a substitute teacher, she earned $50 per day. There is no evidence on 

how often she worked as a substitute teacher; but, apparently, she had the capacity to earn $250 

per week if substitute teacher jobs were available. Subsequently, although the record does not 

reflect when, she became a teacher’s aide at $7 an hour, working from “8:30 in the morning to 

3:30 in the afternoon.” She was a teacher’s aide from April 2004 until May 2007, working forty 

hours a week. McLain said that she also tutored students for $7 an hour for about five hours a 

week for three months during the summers of 2005 and 2006. She also worked at Albertson’s 

for either $6.50 or $6.75 an hour for “between 14 and 21” hours a week. At the time of trial, 

McLain was a full-time student at Abilene Christian University with one year left to obtain a 

degree in special education. From her testimony, it appears that she continued to work as a bus 

driver and at Albertson’s to help her husband support their family.

We are unable to determine from the record how the jury arrived at $80,000 for past loss 

of earning capacity or $10,000 for future loss of earning capacity. Apparently, she wanted to 

stay with Hibbs & Todd, a job that she described as a good one with benefits. However, she 

could not because of her back pain. But even if we assume that she earned $508 per week before 
8

the accident, it is not clear how much she earned or had the capacity to earn after the wreck. 

Also, the $508 per week was based on her working fifty-eight hours a week. After McLain left 

Hibbs & Todd, a number of her jobs appear to have been at $7 per hour or $280 for a forty-hour 

week. She testified that she left Hibbs & Todd sometime during the first part of 2004. The 

difference between $508 and $280 per week is $228 less earnings per week. Assuming she left 

Hibbs & Todd in January 2004, there were approximately 204 weeks between that date and the 

date of trial in November 2007. Multiplying $228 times 204 weeks yields $46,512, a number far 

short of the $80,000 jury verdict. There is, of course, insufficient evidence to even support a 

verdict in the $40,000 range because there was no evidence as to how many hours she actually 

worked before the wreck and how many hours she worked after the wreck, much less any other 

evidence of loss of earning capacity. 

The record does not reflect how the jury arrived at $10,000 in future loss of earning 

capacity. McLain acknowledged that, after she is a college graduate, she will have an 

opportunity for greater earnings.

There was a lack of medical evidence as to McLain’s loss of earning capacity. McLain 

testified that Dr. Daniel L. Munton did not take her off work because she requested that he not do 

so. She further testified that, after the procedure by Dr. Munton, she felt like “her old self” for a 

period. In his deposition, Dr. Munton stated, “No, I didn=t recommend light duty. I just 

recommended avoiding aggravating activity.” Dr. Munton specializes in physical medicine and 

rehabilitation; he treats people who want to avoid surgery.

From the record, it appears that McLain suffered a loss of earning capacity for some 

period. She should be commended for her decision to obtain a college degree; however, loss of 

earnings due to her decision to pursue a college degree was not a loss of earning capacity. There 

is insufficient evidence in the record to support the awards of $90,000 for loss of earning 

capacity. Mid-Century’s second issue is sustained.

Future Medical Expenses

Dr. Munton testified that McLain underwent a procedure, known as a medial branch 

block, where he tried to determine where her pain was coming from. That procedure uses 

needles up to eight inches long to inject a numbing medicine called Marcaine. After a few days, 
9

when her pain returned to the pre-injection level, Dr. Munton then determined that McLain 

needed to undergo a procedure termed “radiofrequency lesioning,” which he described as being 

similar to cauterizing the nerves that appeared to be causing the pain. That procedure also 

utilized lengthy needles and was described by McLain as being quite painful. McLain had that 

procedure performed on October 2, 2003. 

McLain returned to Dr. Munton on November 24, 2003, and on December 22, 2003, and 

said that she felt pain in a different location. Dr. Munton gave her the option of therapy, 

chiropractic treatment, or medication, which she chose. At the time of his deposition in 2006, 

Dr. Munton had not seen her since 2003 because he had moved to another city. Before the trial, 

he had returned to Abilene. During his deposition, he testified that some patients will have their 

pain return but that sixty to seventy percent of patients after a year are pain free or continue to 

have reduced symptoms.

To sustain an award of future medical expenses, the plaintiff must present evidence to 

establish that, in all reasonable probability, future medical care will be required and the 

reasonable cost of that care. See Rosenboom Mach. & Tool, Inc. v. Machala, 995 S.W.2d 817, 

828 (Tex. App.—Houston [1st Dist.] 1999, pet. denied). The reasonable value of future medical 

expenses may be established by evidence of the reasonable value of past medical expenses of a 

similar nature. See City of Rosenberg v. Renken, 616 S.W.2d 292, 293 (Tex. Civ. App.—

Houston [14th Dist.] 1981, no writ). The preferred method of establishing future medical 

expenses is through expert testimony, but such testimony is not required. Nat’l Freight, Inc. v. 

Snyder, 191 S.W.3d 416, 426-27 (Tex. App.—Eastland 2006, no pet.). 

Dr. Munton did not address whether in all probability McLain will need future medical 

care, the type of care that would be required, and the reasonable cost of that care in the future. 

As to future treatment, Dr. Munton stated that McLain might develop conditions that require 

surgery but that “[i]t would be unlikely in her case.” He repeated again that he could not 

recommend any kind of surgical procedure, and his opinion was there was no need for spine 

surgery. McLain testified that she anticipated having to have the cauterization process again in 

the future because the nerves grow back and have to be cauterized.
10

According to the medical records, Dr. Munton did see McLain again in January 2007. 

Dr. Munton wanted to determine the source of her pain by again performing a medial branch 

block and having an MRI done, but McLain thought these were unnecessary. They agreed that 

she would again have another radio frequency medial branch neurotomy that utilized the 32

inch radio frequency spinal needle. Subsequent to the procedure, Dr. Munton noted in February

that McLain appeared to be “doing remarkably well.” But on June 7, 2007, McLain again visited 

Dr. Munton and told him that her pain level had increased to level five. Dr. Munton described 

her condition as chronic, implying that she might have to undergo the procedure again in the 

future. This confirmed McLain’s testimony that she thought her nerves would grow back and 

that she would need further treatments in the future. In 2007, McLain’s medical expenses for the 

treatment were approximately $1,200. After reviewing the records of the costs for the injections, 

office visits with Dr. Munton, another possible medial branch block, and physical therapy, we 

cannot say that the jury’s finding of $10,000 for future medical expenses was not supported by 

sufficient evidence. Mid-Century’s third issue is overruled.

Improper Jury Argument

In its fourth issue, Mid-Century argues that counsel for McLain engaged in improper jury 

argument. To obtain reversal of a judgment on the basis of improper jury argument, MidCentury must prove (1) an error (2) that was not invited or provoked; (3) was preserved at trial 

by a proper objection, motion to instruct, or motion for mistrial; and (4) was not curable by an 

instruction, a prompt withdrawal of the statement, or a reprimand by the trial court. Standard 

Fire Ins. Co. v. Reese, 584 S.W.2d 835, 839 (Tex. 1979). Our review of an improper jury 

argument claim must cover the entire case, beginning with voir dire and ending with closing 

argument. Id. at 840. The complainant must show that the probability that the improper 

argument caused harm is greater than the probability that the verdict was grounded on the 

evidence. Id. at 840. 

At the pretrial conference, counsel for Mid-Century requested that the trial court explain 

(or allow him to explain) at the outset to the jury the nature of the case and the posture of the 

case. He stated that a brief statement would give the jury the context of the case and explain why 

Morey, the underinsured driver, was not present and McLain’s insurance company was the 
11

defendant. The trial court denied this request. However, the court did allow Mid-Century to 

state during voir dire that this case was not about how the claim was handled but was about the 

liability of Morey and the damages that resulted from the accident McLain had with Morey.

One of the first statements by McLain’s attorney to the jury on voir dire was, “We find 

ourselves in an odd situation in that Mrs. McLain’s own insurance company is fighting against 

her.” The court sustained Mid-Century’s objection, but moments later, McLain’s counsel 

continued, “[E]ven though it’s against her own insurance company, she has to prove and can 

only recover money.” Then, the following occurred:

[T]his lawsuit has been here for three-and-a-half years. The wreck has been -- it 

happened four-and-a-half years ago, and within the last week they say for the first 

time it’s her fault. Who thinks that’s right? If you do, raise your hand and let’s 

talk about that. Do you think that an insurance company owes better to their 

insured than that?

. . . .

VENIREPERSON: Yes.

MR. BURNETT: If they think that her injuries were caused by something 

else don’t you think within four-and-a-half years they ought to bring a doctor, any 

doctor --

Counsel for Mid-Century again objected, and the trial court sustained the objection. Counsel for 

McLain continued during voir dire to allude to the insurance company as being in bad faith even 

though this case was solely about the negligence of Morey and damages caused by her 

negligence. McLain’s bad faith claims had been severed into a separate case and were not 

involved in this case.

Questions by the venire panel indicate the effect counsel for McLain had on the panel. 

One venireman asked counsel for Mid-Century, “But what about when the lady -- y’all decided 

not to pay her, didn’t you?” Counsel for Mid-Century answered, “No,” but counsel for McLain 

immediately said, “I object to that. That’s not true.” When the venireperson continued with,

“My question is, someone somewhere had already had to resolve the evidence to not pay her; the 

insurance company,” the court intervened and said, “Well, that’s what the lawsuit is about.” The 

court’s statement was not helpful. The venireperson may have interpreted the court’s statement 
12

to mean that the lawsuit was over whether the insurance company had in bad faith failed to pay 

an amount that it owed, not that it was a lawsuit to determine whether the insurance company 

had any obligation at all under the UIM provision.

In opening statement, counsel for McLain continued the same tactic that he pursued 

during voir dire:

[T]here aren’t any other doctors to indicate otherwise, and yet here we are on her 

uninsured underinsured claim with this company and they haven’t paid a penny.

Counsel for Mid-Century again objected, stating that Mid-Century had no obligation to pay at 

this point and that counsel’s statements were prejudicial and had no relevance to this case. The 

court sustained the objection, telling counsel, “Do not do that again.” The court instructed the 

jury to disregard counsel’s statement, but overruled Mid-Century’s motion for a mistrial.

McLain’s counsel asked the investigating officer, “Did any of these artful questions by 

this lawyer here change your opinion of who caused the wreck?” Mid-Century’s objection was 

sustained.

In questioning McLain, her counsel continued in the same vein:

When was the first time that you heard this company, your insurance 

company, say that this wreck was your fault?

. . . .

You have been telling this company that you were hurt, that it wasn’t your 

fault, for four-and-a-half years, right?

Although it was McLain’s burden to establish her lost earning capacity, her counsel did 

not produce any of her earning records. Instead, he attempted to persuade the jury that it was 

Mid-Century’s burden to negate her testimony as to where and when she worked:

Q. Is today the first time you have now heard they [Mid-Century] are 

quarreling with you over your lost earning capacity? 

A. Correct. 

 Q. If we had known about that we could have brought somebody in here 

with those records, right?
13

The court sustained Mid-Century’s objection, but counsel’s next questions were:

Q. Your earning records are available and have been available to them for 

four-and-a-half years, haven’t they?

A. Yes.

Q. They could have gone down to Hibbs & Todd, they could have called 

anybody they wanted to and they would have give them that information, right?

The court again sustained Mid-Century’s objection, but counsel continued:

Q. Has anyone asked you, with this Defendant, to produce any records up 

until this moment?

The court again sustained Mid-Century’s objection that counsel was misleading the jury with 

respect to the burden of proof and with respect to the law that the jury would be guided by in 

making its decisions.

It is apparent from the record that counsel for McLain created the impression that MidCentury owed duties that it did not owe and that the insurance company had acted in bad faith. 

Although the court sustained Mid-Century’s many objections, the court’s actions had little effect. 

In closing argument, counsel for McLain argued:

You know now that this insurance company, that these people, paid for this 

coverage.

. . . .

No witness, no evidence, all they have is a lawyer that came down here 

armed with a strong desire to deceive you. . . . Does he think -- does this 

company think that out here in Abilene we’re all so, I guess, ignorant that we 

can’t read a doctor’s order . . . ?

[Y]ou don’t have to get past tab one in the case in the medical records of the very 

first exhibit to see how untruthful and disingenuous these people’s own insurance 

company is.

. . . .

Now, how is it that they can stand up here and say those things and expect you to 

be misled? . . . [T]hey have to deceive you into believing.
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. . . .

We know it’s been 1,672 days since this happened. We know it’s been 1,672 

days where this company could have stepped up to the plate and honored its 

responsibility, and they have failed entirely to do that.

Counsel for Mid-Century objected, and the objections were sustained, as they had been 

throughout the case. Counsel for McLain continued to imply that the insurance was acting in 

bad faith in his rebuttal argument:

Do you really think when this insurance company is talking to people --

. . . .

To this insurance company that means their insured did not complain of back 

pain.

. . . .

And when you boil this case down they’ve got to prove she’s a liar, and they can’t 

do it and it’s driving them crazy. They not only have to prove she=s a liar, they 

have to prove the police officer was a liar. They have to prove Doctor Munton 

was a liar.

. . . .

I want you to be able to say you righted a wrong, and that as the standard bearer 

and setter of this community, this will not be tolerated. I look forward to your 

verdict.

Counsel for McLain was well aware that McLain’s extra-contractual claims had been 

severed from this case. He points out that the court sustained Mid-Century’s objections 

throughout the trial. It is obvious from the record, however, that the court’s rulings had no effect 

on counsel.

In Living Centers of Texas Inc. v. P alver, 256 S.W.3d 678, 680-81 (Tex. 2008), the 

supreme court stated that the complaining party “must show that the argument by its nature, 

degree, and extent constituted such error that an instruction from the court or retraction of the 

argument could not remove its effects.” Error as to improper jury argument must ordinarily be 
15

preserved by a timely objection that is overruled. Tex. Employers’ Ins. Ass’n v. Haywood, 266 

S.W.2d 856, 858 (Tex. 1954). Here, however, unlike the situation in P alver, Mid-Century did 

object, and its objections were sustained; counsel for McLain simply ignored them.

Unsupported, extreme, and personal attacks on opposing parties can compromise the basic 

premise that a trial court provides impartial, equal justice. See Standard Fire Ins. Co. v. Reese, 

584 S.W.2d 835, 840 (Tex. 1979). As the supreme court noted in P alver, the serious effects of 

arguments not based on evidence or invited by opposing counsel are recognized in our Texas 

Rules of Civil Procedure. Rule 269 provides that, during final arguments, “[m]ere personal 

criticism by counsel upon each other shall be avoided, and when indulged in shall be promptly 

corrected as a contempt of court.” TEX. R. CIV. P. 269(e).

In this case, counsel’s final arguments were made after he had consistently emphasized to 

the jury during the entire trial that McLain’s own insurance company had acted in bad faith. 

That effect was not cured by the court’s instruction during counsel’s argument.

Counsel for McLain first argues that Mid-Century invited and provoked the argument in 

question because “Mid-Century waited over 32 years until days before trial to contest liability 

or assert that McLain’s damages resulted from a preexisting condition and then challenged the 

truthfulness of McLain on both liability and damages.” Mid-Century had filed a general denial 

at the outset. It did file an amended petition just prior to trial. At a hearing on the amended 

petition, Mid-Century represented to the trial court that its amended petition was only based on 

testimony already reflected in the record. The trial court ruled that it was timely filed. Implicit 

in its ruling was a premise that McLain should not have been surprised by the amended petition. 

After reviewing the record, we find that there was no abuse of discretion in the trial court’s 

ruling. 

Counsel for McLain also argues that Mid-Century disregarded the fiduciary duties it owed 

to its insured by stepping into the shoes of the underinsured motorist, Morey. For this argument, 

counsel relies on Allstate Insurance Co. v. Hunt, 450 S.W.2d 668, 671 (Tex. Civ. App.—

Houston [14th Dist.] 1970), aff’d, 469 S.W.2d 151 (Tex. 1971). In Hunt, the supreme court held 

that the trial court did not abuse its discretion in ruling that Allstate could not participate in 

defending the underinsured motorist. The court emphasized that Allstate had agreed to be bound 
16

by the insured’s suit against the other motorist and had been granted a severance of the suit 

against it. The supreme court reasoned that Allstate had a primary duty to its insured and that the 

insurance company would have conflicting duties if the “uninsured motorist should later decide 

to bring a cross-action against the insured motorist, the company would find itself under a duty 

to defend both antagonists.” 469 S.W.2d at 153. 

In this case, the facts are quite different from those in Hunt. There is no basis in the 

record for an argument that Mid-Century owed a fiduciary duty to McLain in this case. Shortly 

after Hunt was decided, the court in Criterion Insurance Co. v. Brown, 469 S.W.2d 484, 485 

(Tex. Civ. App.—Austin 1971, writ ref’d n.r.e.), pointed out the choices someone in Mclain’s 

position has:

[The insured] may sue the insurance company directly without suing the 

uninsured motorist. State Farm Mutual Automobile Ins. Co. v. Matlock, 462 

S.W.2d 277 (Tex. 1970). When the insured obtains the written consent of the 

insurance company, he may sue the uninsured motorist alone, and that judgment 

binds the insurance company. Allstate Ins. Co. v. Hunt, supra. The insured may 

proceed against the uninsured motorist without the consent of the insurance 

company, but the judgment in that suit will not be “conclusive,” (i.e. liability and 

damages will have to be relitigated) in the suit against the insurance company. 

Allstate Ins. Co. v. Hunt, supra.

This is still the law. Soliz v. Cofer, No. 03-01-00246-CV, 2002 WL 821909 (Tex. App.—Austin 

May 2, 2002, pet. denied); Gov’t Employees Ins. Co. v. Lichte, 792 S.W.2d 546, 548 (Tex.

App.—El Paso 1990, writ denied). 

Here, the other motorist, Morey, was not involved because she had already settled with 

McLain. This suit was directly against Mid-Century. Mid-Century was not defending Morey; it 

was putting McLain to her proof on the issues of liability and damages. This case was only a suit 

on a contract and similar to automobile, fire, life, theft, accident, wind, and workers’

compensation insurance cases brought by an insured against its own insurer over contractual 

coverage. Counsel’s arguments to the jury were improper and incurable by the time they were 

made. Mid-Century’s fourth issue is sustained.
17

Conclusion

To establish her entitlement to underinsured motorist benefits, McLain was required to 

establish the following: (1) that she had UIM coverage; (2) that Morey’s negligence caused her 

damages and the amount of her damages; and (3) that Morey was, in fact, underinsured. State 

Farm Mut. Auto. Ins. Co. v. Grayson, 983 S.W.2d 769 , 770 (Tex. App.—San Antonio 1998, no 

pet’n).

McLain did not introduce her insurance policy and failed to carry her burden of proof to 

establish that she had uninsured/underinsured coverage from Mid-Century. It is basic law that 

when one sues on a contract, that person must first establish that he or she had a contract. 

McLain also had the burden to provide evidence of her settlement with Morey and the limits of 

Morey’s insurance to establish that Morey was an underinsured motorist. She failed to provide 

that evidence. However, Mid-Century did not contest the coverage and provided evidence to the 

trial court that her policy provided for $20,000 in coverage.

McLain failed to provide sufficient proof to justify the jury’s award of $80,000 in loss of 

past earnings capacity and $10,000 in loss of future earnings capacity. Final argument by 

counsel for McLain apparently influenced the jury to give an award far in excess of the evidence. 

It is well settled that, in this case, Mid-Century’s liability for breach of contract is limited 

to the amount stated in McLain’s contract. From the record provided by Mid-Century, it appears 

that amount was $20,000. On retrial, the judgment should not exceed $20,000. 

This Court=s Ruling

The judgment of the trial court is reversed, and the cause is remanded for a new trial.

TERRY McCALL

JUSTICE

March 11, 2010

Panel consists of: Wright, C.J.

McCall, J., and Strange, J.