Javier Barrios Guerra v. The State of Texas--Appeal from 159th District Court of Angelina County

State: Texas

Court: Texas Northern District Court

Docket No: 09-02-00092-CR

Case Date: 11/13/2002

Plaintiff: Warren P. Canady and Sonya C. Woods-Canady

Defendant: Christal Russell--Appeal from County Court at Law of Anderson County

Preview:United States Fire Insurance Company v. Tammy Fugate--Appeal from 359th District Court of Montgomery County
MAJORITY | MAJORITY IN THE TENTH COURT OF APPEALS

No. 10-04-00260-CV United States Fire Insurance Company, Appellant v. Tammy Fugate, Appellee

From the 359th District Court Montgomery County, Texas Trial Court No. 03-01-00436 CV CONCURRING Opinion

The issue in this appeal is whether Fugate was required to bring her claim under article 21.55 of the Texas Insurance Code in the same proceeding as her claim for breach of contract for failure to pay UIM coverage. See Act of 1991, 72nd Leg., ch. 242, 11.03(a), repealed by Act of 2003, 78th Leg., ch. 1274, 26(a)(1) (current version at Tex. Ins. Code Ann. 542.060 (Vernon Pamp. 2004-2005)). The Texas case which provides the most guidance on this issue is Lusk v. Puryear, 896 S.W.2d 377 (Tex. App. Amarillo 1995, orig. proceeding). In Lusk, the court held that it was error to sever a claim for non-payment of UIM benefits from an article 21.55 claim. The court held, based on the language of the statute, that there was only one cause of action, the claim under article 21.55 is not a separate cause of action from the claim under the UIM provision of the policy. Id. at 380. A suit under the contract puts the entire liability of the insurer, both on the insurance policy and under article 21.55 in issue. Id. See Hartman v. St. Paul Fire and Marine Ins. Co., 55 F. Supp. 2d 600 (N.D. Tex. 1998). Because a claim under article 21.55 is not an independent claim that will support a separate cause of action, it follows that an article 21.55 claim is barred by res judicata if it is not brought in the same proceeding with the underlying breach of contract claim. In this regard, it is more in the nature of additional damages, though the timing of certain events must be proven, than an independent cause of action.
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Thus, I concur in the Court s judgment to reverse the judgment of the trial court and render judgment in favor of United States Fire Insurance Co. TOM GRAY Chief Justice Concurring opinion delivered and filed on July 27, 2005

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