Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-18-00014-CV

Virginia BRETADO,

Appellant

v.

NATIONWIDE MUTUAL INSURANCE COMPANY,

Appellee

From the 407th Judicial District Court, Bexar County, Texas

Trial Court No. 2016-CI-09066

Honorable Antonia Arteaga, Judge Presiding

Opinion by: Patricia O. Alvarez, Justice

Sitting: Sandee Bryan Marion, Chief Justice

Marialyn Barnard, Justice

Patricia O. Alvarez, Justice

Delivered and Filed: December 12, 2018

AFFIRMED

Virginia Bretado appeals from a summary judgment granted in favor of her insurer, 

Nationwide Mutual Insurance Company. Bretado’s brief challenges only whether the trial court 

had jurisdiction to consider her claim against Nationwide.1

 Because Bretado’s claim is ripe, she 

has standing, and the trial court had jurisdiction, we affirm the trial court’s judgment.

 1 Because Bretado’s brief fails to state the issues presented for review, we rely on the subheadings in her brief as the 

issues presented: (1) “The Trial Court Lacks Jurisdiction to Grant Summary Judgment,” (2) “Nationwide’s Denial of 

the Claim Does Not Confer Jurisdiction,” and (3) “Dismissal Without Prejudice is Proper.” See TEX.R. APP. P. 38.1(f). 
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BACKGROUND

On the same day that Bretado’s vehicle was struck from behind by a vehicle driven by Paul 

A. Moryl, Bretado filed a claim against Nationwide, her insurer, for underinsured motorist 

benefits. Later, Bretado sued Moryl.

In a letter to Bretado’s attorney, Nationwide denied Bretado’s claim:

We received your settlement demand of $25,000 to resolve the above 

mentioned Under-Insured Motorist claim. Based on the documentation you 

provided, we do not feel there is an Under-Insured Motorist exposure as we feel 

your client is fully indemnified by the underlying carrier’s policy limits of $25,000. 

As such, this claim must be denied.

More than four years after Nationwide denied Bretado’s claim, Bretado sued Nationwide 

for breach of contract.2

 Nationwide answered and asserted the affirmative defense of limitations. 

Nationwide moved for summary judgment on traditional and no-evidence grounds; it 

asserted Bretado’s breach of contract claim was barred by limitations. Bretado’s response asserted

her claim against Nationwide was not ripe because Moryl had been in bankruptcy, she had not yet 

established Moryl’s liability and her underinsured status; therefore, her claim against Nationwide 

had not accrued, it could not be barred by limitations, and she did not yet have standing to sue.

3

The trial court held a hearing on Nationwide’s motion and allowed the parties to file 

additional briefing. Bretado filed a supplemental trial brief asserting the same arguments made in 

her summary judgment response. The trial court granted Nationwide’s traditional motion for 

summary judgment and concluded the no-evidence motion was moot. Bretado appeals.

 2 Bretado also sued Nationwide for extracontractual claims. The trial court severed the extracontractual claims into a 

separate cause that is not at issue in this appeal. 3 In her response to Nationwide’s motion for summary judgment, Bretado argued in the alternative that the limitations 

period on her claim against Nationwide was tolled by Moryl’s bankruptcy; therefore, her claim was timely filed. 
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Because Bretado’s brief challenges only the trial court’s jurisdiction, we limit our analysis 

to the jurisdiction question.

4

STANDARD OF REVIEW

Ripeness and standing are both components of subject matter jurisdiction. In re Coppola, 

535 S.W.3d 506, 510 (Tex. 2017); Patterson v. Planned Parenthood of Hous. & Se. Tex., Inc., 971 

S.W.2d 439, 442 (Tex. 1998). We review a challenge to a trial court’s subject matter jurisdiction 

de novo. Meyers v. JDC/Firethorne, Ltd., 548 S.W.3d 477, 486 (Tex. 2018).

RIPENESS AND STANDING

Bretado contends the trial court lacked jurisdiction to grant summary judgment in favor of 

Nationwide because her claim was not ripe, and because she had not yet sustained a direct injury 

from Nationwide’s denying her claim, she does not yet have standing to sue.

Both ripeness and standing implicate subject matter jurisdiction and “emphasize[] the need 

for a concrete injury for a justiciable claim to be presented.” Patterson, 971 S.W.2d at 442. 

Patterson explained the distinction between the two concepts as follows:

[S]tanding focuses on the question of who may bring an action, [while] ripeness 

examines when that action may be brought. At the time a lawsuit is filed, ripeness 

asks whether the facts have developed sufficiently so that an injury has occurred or 

is likely to occur, rather than being contingent or remote. Ripeness thus focuses on 

whether the case involves “uncertain or contingent future events that may not occur 

as anticipated, or indeed may not occur at all.” By maintaining this focus, the 

ripeness doctrine serves to avoid premature adjudication.

Id. (citations omitted).

 4 Bretado’s brief does not contain any issue or argument regarding the trial court’s conclusion that her claim is barred 

by limitations. Although Bretado’s reply brief argues the limitations period for her claim was tolled, “[a] reply brief 

may not be used to raise new issues.” See Gamboa v. Gamboa, 383 S.W.3d 263, 274 (Tex. App.—San Antonio 2012, 

no pet.); Lopez v. Montemayor, 131 S.W.3d 54, 61 (Tex. App.—San Antonio 2003, pet. denied) (“A reply brief is not 

intended to allow an appellant to raise new issues.”).
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RIPENESS

Citing Brainard, Bretado asserts her claim against Nationwide for breach of contract based 

on its refusal to pay underinsured motorist benefits does not accrue until she obtains a judgment 

establishing Moryl’s liability and his status as an underinsured motorist. See Brainard v. Trinity 

Universal Ins. Co., 216 S.W.3d 809, 818 (Tex. 2006). Bretado reasons “[i]n that the prerequisites 

to UIM coverage as dictated by the Texas Supreme Court have not been established, Ms. Bretado’s 

claims are not untimely, they are not yet ripe.” While Bretado frames the jurisdictional issue as 

one of both ripeness and standing, “we view it more precisely as one of ripeness.” See Patterson, 

971 S.W.2d at 442. 

A. Applicable Law

“In evaluating ripeness, we consider whether, at the time a lawsuit is filed, the facts are 

sufficiently developed so that an injury has occurred or is likely to occur, rather than being 

contingent or remote.” In re DePinho, 505 S.W.3d 621, 624 (Tex. 2016) (quoting Robinson v. 

Parker, 353 S.W.3d 753, 755 (Tex. 2011)). “A case is not ripe when determining whether a 

plaintiff has a concrete injury can be made only on contingent or hypothetical facts, or upon events 

that have not yet come to pass.” Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 852 (Tex. 

2000).

As to when a claim may be raised, an insured is not required to obtain a judgment against 

an uninsured motorist before pursuing a claim against its insurer for underinsured motorist 

benefits. See Brainard, 216 S.W.3d at 818; In re Teachers Ins. Co., No. 07-03-0330-CV, 2004 

WL 2413311, at *2 (Tex. App.—Amarillo Oct. 28, 2004, no pet.) (mem. op.). Instead, the insured 

need only “show fault on the part of the uninsured motorist and the extent of the resulting damages” 

in a lawsuit against the insurer. See In re Teachers, 2004 WL 2413311, at *2. Further, an insured 

may “sue the UIM insurer without joining the UIM and [the insured may] litigate the UIM’s 
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liability and underinsured status in that lawsuit.” State Farm Cty. Mut. Ins. Co. of Tex. v. DiazMoore, No. 04-15-00766-CV, 2016 WL 6242842, at *2 (Tex. App.—San Antonio Oct. 26, 2016, 

no pet.) (mem. op.). 

“As plaintiff, [Bretado] had the burden to allege facts that affirmatively demonstrate the 

trial court’s jurisdiction.” See id. On appeal, for purposes of determining jurisdiction, “[w]e 

construe [Bretado’s] pleadings liberally in her favor, taking all factual assertions as true.” See id.

B. State Farm County Mutual Insurance Co. of Texas v. Diaz-Moore

In Diaz-Moore, this court considered Brainard in determining when a claim against an 

insurer for underinsured motorist benefits is ripe. Id. Liliana Diaz-Moore’s vehicle was struck by 

a vehicle driven by Gilbert Beltran Jr., and she subsequently sued Beltran and State Farm alleging

the following:

(1) Beltran’s negligence caused the collision; (2) Beltran was an underinsured 

driver because the policy limits of his insurance policy [were] not sufficient to cover 

all of Diaz–Moore’s injuries and damages; (3) Diaz–Moore maintained an 

insurance policy with State Farm which provided uninsured/underinsured 

(UM/UIM) benefits coverage; and (4) State Farm failed to acknowledge Diaz–

Moore’s UM/UIM claim and/or pay any UM/UIM benefits owed to Diaz–Moore.

 

Id. at *1. Neither Beltran nor State Farm answered; Diaz-Moore obtained a default judgment

against both. Id.

On restricted appeal, State Farm cited Brainard to support its argument that Diaz–Moore’s 

claim was not ripe because State Farm was “not contractually obligated to pay benefits until Diaz–

Moore establishe[d] Beltran was liable for causing the accident and Beltran was underinsured 

based on the amount of Diaz–Moore’s damages.” Id. at *2 (citing Brainard, 216 S.W.3d at 815). 

Although this court noted State Farm was “correct with regard to Diaz-Moore’s burden of proof 

at trial,” we stated that “in determining ripeness, we only consider whether Diaz-Moore pled 
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sufficient facts which, if true, establish a claim for injuries against State Farm.” Id. We then held

Diaz-Moore had alleged a ripe claim:

As previously noted, Diaz–Moore alleged: (1) Beltran’s negligence caused the 

collision; (2) Beltran was an underinsured driver because the policy limits of his 

insurance policy are not sufficient to cover all of Diaz–Moore’s injuries and 

damages; (3) Diaz–Moore maintained an insurance policy with State Farm which 

provided uninsured/underinsured benefits coverage; and (4) State Farm failed to 

acknowledge Diaz–Moore’s UM/UIM claim and/or pay any UM/UIM benefits 

owed to Diaz–Moore. Therefore, Diaz–Moore has pled facts which, if true, would 

establish Beltran was liable for the accident, is underinsured, and State Farm 

refused to pay UIM benefits.

Id.

C. Analysis

In this case, Bretado alleged in her petition that her vehicle was hit from behind by Moryl’s 

vehicle and she suffered severe injuries and damages. She further alleged Moryl had insufficient 

insurance coverage to compensate her for her severe injuries and damages, and her Nationwide 

insurance policy provided underinsured motorist benefits to her. Bretado filed a claim with 

Nationwide for underinsured motorist benefits because Moryl had insufficient insurance coverage, 

but Nationwide failed to pay the claim. Because Bretado pled facts which, if true, would establish 

Moryl was liable for the accident, is underinsured, and Nationwide failed to pay Bretado’s claim 

for underinsured benefits, Bretado’s claim is ripe. See id.

STANDING

Bretado also contends she “lacks standing to bring the claims for which relief is sought.” 

She argues that “[w]ithout a judgment establishing the liability and underinsured status of the other

motorist, it cannot be shown that Ms. Bretado has sustained, or is in the immediate danger of 

sustaining, some direct injury based upon Nationwide’s denial, because the prerequisites to 

coverage had not been established.”
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In her standing argument, Bretado focuses on the absence of any showing that she “has 

sustained, or is in immediate danger of sustaining, some direct injury based upon Nationwide’s 

denial.” Thus, her argument is that the facts have not sufficiently developed “so that an injury has

occurred or is likely to occur.” Id. 

However, taking as true Bretado’s pleadingsthat Nationwide breached her insurance policy

by denying her claim for underinsured benefits, Bretado has been personally aggrieved and she 

has standing to assert that claim against Nationwide. See Austin Nursing Ctr., Inc. v. Lovato, 171 

S.W.3d 845, 848 (Tex. 2005) (“The issue of standing focuses on whether a party has a sufficient 

relationship with the lawsuit so as to have a ‘justiciable interest’ in its outcome.”); Nootsie, Ltd. v. 

Williamson Cty. Appraisal Dist., 925 S.W.2d 659, 661 (Tex. 1996) (“A plaintiff has standing when 

it is personally aggrieved . . . .”); Kahn v. Helvetia Asset Recovery, Inc., 475 S.W.3d 389, 393 

(Tex. App.—San Antonio 2015, pet. denied) (“A determination of standing focuses on whether a 

party has a ‘justiciable interest’ in the outcome of the lawsuit, such as when it is personally 

aggrieved or has an enforceable right or interest.”).

CONCLUSION

The only issues raised in Bretado’s brief challenge the trial court’s jurisdiction to consider 

her breach of contract claim. Bretado’s claim was ripe, she had standing to sue, and the trial court 

had jurisdiction to decide Nationwide’s motion. We overrule Bretado’s issues and affirm the trial 

court’s judgment.

Patricia O. Alvarez, Justice