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At a Glance:
Title:
Blevins v. State Farm Mutual Automobile Insurance Company
Date:
November 15, 2018
Citation:
02-17-00276-CV
Status:
Unpublished Opinion

Blevins v. State Farm Mutual Automobile Insurance Company

Court of Appeals of Texas, Fort Worth.

William BLEVINS, Appellant

v.

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee

No. 02-17-00276-CV

|

Delivered: November 15, 2018

On Appeal from the 96th District Court, Tarrant County, Texas, Trial Court No. 096-259556-12, Hon. R.H. Wallace, J.

Attorneys & Firms

Brian W. Butcher, Noteboom – The Law Firm, Hurst, Texas, for Appellant.

Lisa D. Hull, Harrison & Hull, L.L.P., McKinney, Texas, for Appellee.

Before Birdwell, JJ.

MEMORANDUM OPINION

Memorandum Opinion by Justice Kerr

*1 Presenting four issues, William Blevins appeals from an unfavorable jury verdict and resulting judgment on his declaratory-judgment action against State Farm Mutual Automobile Insurance Company for underinsured-motorist benefits. Blevins’s first two issues present legal- and factual-sufficiency challenges to the jury’s findings of zero damages; his third issue complains of the trial court’s excluding testimony about the uninsured- and underinsured-motorist (UM/UIM) policy by quashing a trial subpoena for a State Farm corporate representative; and his final issue involves claimed jury-charge error. We affirm.

Introduction

State Farm was the only defendant to go to trial after the two drivers whose cars each struck Blevins’s settled with him. As in any underinsured-motorist case, Blevins needed to establish liability on the part of either or both of those settling drivers and to quantify his damages through a jury verdict and judgment. Only then, after applying any offsets and credits, might State Farm owe him money under his UIM policy. At its core, then, this was first and foremost a tort case.

At trial, Blevins did not put into evidence or seek to recover any out-of-pocket medical bills or repair costs, nor did he seek lost wages or recovery for any diminished earning capacity. Rather, his principal trial theory was that the wreck had caused a traumatic brain injury that had permanently diminished his cognitive abilities and affected his family relationships. The jury was asked only about damages for past and future physical pain and mental anguish, past and future disfigurement, and past and future physical impairment.

The voluminous medical records put before the jury referred here and there to a bump on Blevins’s head and associated swelling, to a concussion that was not serious and that resolved quickly, and to a leg abrasion. This handful of objective yet relatively insignificant injuries were barely mentioned in testimony, and mostly in the cross-examination of Blevins’s expert, who had not, until over a lunch break at trial, reviewed Blevins’s medical records or known about his past concussions, seizures, depression, severe traumatic brain injury that in the end did not convince the jury to award him any damages.

Facts

Blevins was involved in a multi-car wreck on October 2, 2011, losing consciousness temporarily at the scene but coming to before being removed from his car. He was taken by ambulance to Texas Health Harris Methodist Hospital in Fort Worth, where he was evaluated and sent home several hours later with a pain reliever and an anti-nausea medication.

Blevins’s medical history

At the time of the wreck Blevins had been under a neurologist’s care, and a January 2011 medical record from Texas Neurology in Dallas—written some nine months before Blevins’s accident—summed up his medical history1:

53 yo WM RH seizures since September 2006

*2 On Memorial Day 2006, ear ache, then bacterial menengitis [sic], ICU

Rehab

Home then August 2006 diagnosed with [diplopia

September 2006, working in a hot warehouse, he felt hot, he passed out, he believes he fainted[.] Hit the concrete floor hard, struck left brow, concussion with loss of consciousness, but witness did not see a seizure[.] Then started having episodes of loss [of] strength, and falling backwards, whole body tingling, improved with laying down[.] Three episode[s] occurred over a few days after his fall in the warehouse ...

He has bilateral high frequency hearing loss[.] The hearing loss in his left ear may be more severe[.] He attributes the left ear hearing loss to a concussion he received when he was struck by his own car when someone ran into from behind and she [sic] fell back on the pavement hitting his head[.] This occurred in his early 20s[.]

As this medical history indicates, Blevins suffered two hospitalizations in 2006. The first time, Blevins spent ten days in the hospital with West Nile virus in Tarrant County, leading to further hospitalization.

When he came down with West Nile virus, Blevins testified that he developed a “massive headache” and fever spikes along with a “shaking issue” that left him unable to hold a utensil and feed himself. By the end of 2006 Blevins was better “[b]ut [he] had a seizure ....” And as the above-quoted Texas Neurology record reveals, while Blevins was working in a hot warehouse in September 2006, he passed out and hit his head “hard” on the concrete floor.

Nonetheless, Blevins denied any ongoing neurological problems and felt that he had completely recovered by 2007. In addition, a past hearing issue was addressed when Blevins had tubes inserted into his ears while hospitalized in 2006, which enabled him to stop using hearing aids, although Blevins testified that the 2011 wreck caused those problems to resurface.

Medical Clinic of North Texas (MCNT) records dated October 6, 2006, that are contemporaneous with the onset of Blevins’s seizure disorder give this additional information, as recorded by counselor Kathy Bailey, Ph.D.:

*3 He fainted at work and, subsequently, he was laid off from his job. He had no disability insurance. This has placed the family into financial challenge.

On September 25, 2006, he was helping a friend with some bookkeeping work. He had a seizure and was, then, diagnosed with a seizure disorder. Since the seizure, Mr. Blevins has been hesitant to be without his spouse at his side. He has struggled with fears of the night because the darkness reminds him of uncertainty.2

Dr. Bailey’s 2006 records also list, among “additional persistent symptomology,” Blevins’s tearfulness, anhedonia (inability to feel pleasure), difficulty in making decisions, fatigue, and sense of “impending doom.”

As part of its January 2011 assessment and treatment of Blevins’s seizure disorder, Texas Neurology referred Blevins to be evaluated for Obstructive Sleep Apnea.”

Also in January 2011, Texas Neurology performed an MRI on Blevins’s brain. The results of that test were “unremarkable.” When Texas Neurology performed a repeat MRI on Blevins three days after his car wreck, the findings were explicitly “compared to MR dated 01/31/2011”:

The study is negative. There is no significant interval change. There is no imaging evidence of mesial temporal sclerosis. There is no evidence of any significant subcortical pathology. No evidence for pathologic contrast enhancement. Cerebral and cerebellar volume are appropriate for the patient’s age. No microvascular ischemic changes present.

SUMMARY: Negative MR evaluation of brain. No significant change from January exam.

Except for a neuropsychological evaluation done in 2013 at the request of Blevins’s counsel after this suit was filed, no medical records from the day of or after the October 2, 2011 accident contain any observational entries or test results that would support Blevins’s claim that the wreck resulted in an enduring “traumatic brain injury,” as that phrase was used by his retained expert neuropsychologist, Andrew Houtz, Ph.D. But it was on such an injury that Blevins, his wife, and Dr. Houtz exclusively focused at trial, and for which Blevins sought compensation of at least $300,000.3

The October 2, 2011accident and its aftermath

*4 Blevins did not remember anything about the wreck itself, although he recalled looking for his cell phone afterward. One witness from the scene testified that when she had first approached the car, Blevins was unresponsive; she feared he was dead. After the witness unbelted Blevins’s young son, Nathanael,4 from the back seat and went to the front of the car, Blevins came to and said, “My son! My son!” The witness “could tell something was wrong” with Blevins because his eyes were open, but he was “not comprehending.”

Blevins’s first real recollection of interacting with anyone was when he was in the ambulance on the way to the hospital. The “Comments” section of MedStar records from that day indicate that Blevins had a “hematoma (bruise) was described as “to top of head.” Under the form’s “Subjective” section, MedStar recorded head pain but “No Altered Mental Status”; Blevins was noted in the “Initial Assess – Objective” portion to have been alert to person, place, and time but also “confused.”

Once at Harris Hospital, Blevins remembered riding on the gurney and also remembered the emergency-department doctor’s reacting to a comment Blevins had made by responding “That was funny, especially the first time,” or words to that effect.5 Blevins testified that right after the accident, his shoulder and possibly “one of [his] knees or legs was hurting, [his] right leg, maybe,” and that he had “quite a bit of bruising” on his face from the air bag. No photographs of Blevins following the accident were introduced into evidence.

Consistent with MedStar’s records, the medical records from the Harris Hospital Emergency Department indicate that Blevins arrived at the ED with a hematoma to his head, although his wife testified that he “still has a lump” from the collision.

The hospital records also indicate that Blevins scored a near-perfect total on the 15-point Glasgow coma scale, a test Blevins’s expert described as a “measure of awareness, of alertness.” As Dr. Houtz acknowledged on cross-examination, Blevins’s assessment at 14 indicated a “relatively mild” head injury.6

Blevins was sent home from Harris Hospital a few hours later, with prescriptions for head injury that may be causing some long lasting symptoms such as headache and dizziness.”

*5 At trial, Blevins specifically mentioned a concussion only once:

Q. After this collision, did you have hearing problems?

A. Yes.

Q. And can you tell the jury about that, how -- when you first realized you had problems.

A. Well, I was -- I can’t remember exactly when we noticed that, but I was kind of -- You know, with a concussion, there was a period of time where there was this time and space thing, so I’m not sure. And what I mean by that was, there -- the -- the gentleman in the emergency room said that --

A hearsay objection was sustained at that point, and Blevins went on to testify not about any concussion-related cognitive issues, but rather that it was “weeks after that was when I started noticing that I could hear again.”

October and November 2011: post-accident medical care

As noted, Texas Neurology had performed an MRI on October 5, three days after Blevins’s wreck. Blevins then saw his neurologist, Dr. Nolan Jenevein, on October 10, 2011, when he returned to Texas Neurology for what the Progress Note shows as “[f]ollow up MRI concussion.”

Dr. Jenevein noted that “MRI brain shows subgaleal hematoma, several millimeters thick over the left frontal parietal region. Intracranially the MRI scan shows no abnormalities.” At this visit Blevins apparently did not complain of any cognitive difficulties, and his “cortical functions” were described as “alert and oriented X 3, comprehension and language intact, general knowledge and judgement with normal variation, speech fluent.” Dr. Jenevein also noted that Blevins was declining to take his recommended antiseizure medication.7 (And although at trial Blevins testified that he continued to see Dr. Jenevein after the wreck and talked to him about the mental changes he had experienced as a result, the medical records do not support that assertion.)

On October 25, 2011, Blevins went to the Medical Clinic of North Texas, where he had been a patient since 2006. His complaint at that visit was “joint/neck/back pain,” and he reported taking phenergan.” The October 25 medical record indicates that MCNT “will refer to back specialist if pain persists.”

The next day, though, on October 26, 2011, Blevins visited Labrecque Family Chiropractic, where he self-reported that he had suffered a “severe” concussion. Blevins’s chief complaints were “daily headaches, bilateral neck pain, constant mid back pain and [stiffness,] daily bilateral knee pain and right hip pain.” He then embarked on a roughly two-months-long series of regular chiropractic treatments.8

*6 About halfway into his course of chiropractic treatments, on November 17, 2011, Blevins also became a new patient at Arlington Orthopedic Associates, where his chief complaint was “neck pain.”9 As he did with Labrecque Family Chiropractic, Blevins reported that he had suffered a “severe concussion” from the accident. As with Blevins’s other medical records, the Arlington Orthopedic Associates records do not reflect that Blevins reported or exhibited any cognitive difficulties.

2012: Blevins files suit

The record does not give the exact date, but sometime before November 12, 2012—the date on which Olivia Head filed her original answer—Blevins sued Head and Lesley Matos, the drivers of the two cars that had hit him on October 2, 2011. (State Farm was added as a defendant in May 2016.)

July 2013: Andrew Houtz, Ph.D. evaluation; May 2017 trial testimony

At least eight months after filing this lawsuit, and nearly two years after the accident, Blevins was referred by his counsel to Andrew Houtz, Ph.D., for a neuropsychological evaluation to “assess his current level of neuropsychological functioning, identify cognitive strengths and limitations, evaluate for residual sequelae impacting his daily functioning.”

Dr. Houtz spent an hour talking with Blevins and three hours administering tests; the July 2013 appointment was their sole interaction, and Dr. Houtz did not treat Blevins. At trial, Dr. Houtz acknowledged that he had not interviewed Blevins’s wife or any co-workers but that the “historical aspect” came only from Blevins—that is, from what he self-reported. Dr. Houtz concluded that Blevins was “having ongoing traumatic brain injury in the October 2011 accident that resulted in permanent deficits.

In his testimony on direct, Dr. Houtz represented to the jury that Blevins had had an head injury.”

*7 Dr. Houtz also told the jury that his previous review of Blevins’s medical records had shown a diagnosis of a “severe concussion since the time of this wreck.” But on cross-examination, Dr. Houtz conceded that—

• he did not actually recall having seen any medical records describing Blevins’s concussion as “severe”;

• he had not seen the Texas Neurology records or Blevins’s MRI results;

• although he had thought that Blevins had had some “brain bleeding” as a result of the accident, the records do not actually show that; and

• Dr. Houtz’s recollection of Blevins’s having had a “subdural hematoma or some type of bleed” in the space between the skull and the brain was also not supported by the medical records.

Dr. Houtz was unaware of Blevins’s having passed out and having struck his head on a concrete floor in 2006. Moreover, Blevins did not tell Dr. Houtz about the warehouse incident, about sleep apnea will “[t]ypically ... cause memory problems and attention and concentration difficulties.”

Also on cross-examination, Dr. Houtz agreed that he did not feel Blevins’s head for a “goose egg,” nor did he remember if Blevins had mentioned a “goose egg” during their session. Dr. Houtz did not think that Blevins had mentioned any neck or back pain either.

Dr. Houtz similarly had not reviewed the 2006 MCNT records in which Dr. Bailey had recorded Blevins’s hesitancy to be without his wife at his side since his seizure, his struggles with fears at night, symptoms of anhedonia and tearfulness, difficulty in making decisions, and other problems; nor did Blevins tell Dr. Houtz of those issues. In fact, Dr. Houtz admitted that he was not even aware of these and other medical records until reviewing them for the first time over the lunch break that came between cross-examination and his redirect testimony.

On redirect, and after then having seen Blevins’s medical records, Dr. Houtz explained that even a “mild” brain injury, with the former being “some kind of an insult to the head” but one that “may not transmit enough kinetic force to cause actual damage to the tissue of the brain.”

*8 On further cross-examination, Dr. Houtz acknowledged that Blevins’s subgaleal hematoma, which was a bruise or “goose egg,” was outside the cranium rather than intracranial; was several millimeters thick, or about the width of a large paperclip; and seems to have “spontaneously resolved” several days later. It was not “something that was bleeding.” Dr. Houtz also agreed that Blevins’s neurologist did not change anything about his treatment following the accident.

Course of proceedings

The only trial witnesses were Blevins himself; his wife, Jenna; Elizabeth O’Rear, a witness to the accident; and Dr. Houtz. State Farm rested without putting on any evidence in its case in chief.

The jury found negligence and proximate cause in connection with Olivia Head but not Lesley Matos. The jury was not asked to compensate Blevins for any economic damages such as medical expenses or lost wages, and for each of the noneconomic-damages categories submitted to the jury, it returned a finding of zero damages. Blevins unsuccessfully moved for a new trial, and this appeal followed.

ISSUES ONE & TWO

Evidentiary Sufficiency

Standards of Review; Legal Principles

To successfully challenge the legal sufficiency of a factfinder’s determination that the challenging party failed to meet its burden of proof, that party “must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts” necessary to meet the burden of proof. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).

Here, although Blevins raised a separate legal-sufficiency issue and mentions in passing the “as a matter of law” standard, he has asked only for a remand and has not identified where in the record his non-economic damages were ostensibly established as a matter of law. Accordingly, we will evaluate his evidentiary issues only for factual sufficiency.

In a factual-sufficiency challenge to an adverse finding on which the challenging party had the burden of proof, such as to establish its damages, that party “must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence.” GTE Mobilnet of S. Tex. v. Pascouet, 61 S.W.3d 599, 616 (Tex. App.—Houston [14th Dist.] 2001, pet. denied).

*9 Moreover, a jury has “great discretion” in considering damages-related evidence, and it is particularly within the jury’s province to resolve necessarily speculative matters such as pain and mental anguish and to decide what amounts (if any) to award for such things. State Farm, 483 S.W.3d at 263 (citing cases).

But “more likely” does not necessarily mean “must.” See Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 775 (Tex. 2003) (observing, in dicta, that zero-damages award for pain and suffering would not necessarily be upheld on appeal “if there is objective, undisputed evidence of a significant injury and the jury could not have compensated the injured party in some other category of damages” (emphasis added)).

Texas jurisprudence no longer adheres uncritically, if it ever did, to the so-called “zero-damages rule,”12 which the supreme court has neither adopted nor disavowed. See Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986) (op. on reh’g)). And not just goes against the great weight—it must do so in a way that is manifestly unjust, shocks the conscience, or clearly demonstrates bias. Id.

*10 We must also keep in mind that it is the jury, and the jury alone, that judges the witnesses’ credibility and the weight to give their testimony. Id. In performing that role, the jury may believe one witness and disbelieve others, just as it may resolve inconsistencies in any witness’s testimony. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986).

Discussion

This case is unusual in that the record contains some evidence that Blevins had a concussion, an abrasion on his leg, bruising on his face, and a traumatic brain injury, and (except for Blevins’s one-line testimony that his face was bruised by the air bag) it was within those records that the evidence of objective injuries appeared.13 Given the way the case was tried, we see our inquiry as essentially two-fold:

• Was it wrong for the jury to reject Blevins’s claim of a traumatic brain injury with lasting effects by awarding no damages?

• Was the evidence of objective injuries such that the jury had no choice but to have awarded some non-economic damages for pain and mental anguish, disfigurement, or physical impairment?

Traumatic brain injury with permanent effects

In reviewing and weighing the evidence that the jury had before it, when considering Blevins’s claim of a traumatic brain injury we cannot conclude that the jury’s zero-damages answers were so against the great weight and preponderance of the evidence as to be manifestly unjust. Blevins’s own descriptions of his cognitive problems were vague:

• Before the accident, he and his son would go on “adventures,” but “it’s become a different kind of issue because ... as [Nathanael has] gotten older, he can see the differences in” Blevins, and after the wreck they “couldn’t do” the adventures because Blevins was “having issues with getting lost when we were going places.”

• Although the company Blevins works for has been “really great,” he has to keep “meticulous notes” and make reminders for himself and write down names when meeting someone because his short-term memory is affected, which produces fear of being found out.

• Work causes “a lot of anxiety” because he knows that a “customer is not a friend” but is instead someone to be served to the best of his ability; it is critical that his customers in the lighting business know they can count on him to fix systems.

• When things happen with work, “it’s just more [him] being so freaked out about it. But it’s -- That question is always looming, you know, ‘Well, what happens if -- if it becomes all the time?’ ”

• As far as Blevins’s home life is concerned, his frustration with himself “bleeds over to [their] relationship -- Jenna and [his] relationship with” Nathanael; Blevins worries that his own stress spills over, and he does not want his son to have memories of yelling, as Blevins did with his own father.

*11 • Blevins is frustrated at the unpredictable nature of being able to remember some things but not others, and at his interactions with people when they remind him that a conversation already occurred.

• He has “lost some” of who he was, which is a burden on his wife and son; it is “just a scary time” and memory is “just not there.”

• At the time of trial, Blevins was studying for a particular certification in the lighting industry but was finding it difficult.

Blevins’s wife also testified to his memory problems and frustrations, although those issues had improved over the years. Asked whether there is a “night and day difference in the Bill Blevins that the jury sees versus the one that existed prior to this wreck,” Mrs. Blevins responded, “That the jury would see at this point in time, six years after the accident, I would say, no, you can’t see it; but I can see it, and Nathanael can see it, and my parents can see it. He’s not the same person.” She also testified that he continued to get better “over the course of a few years” but also that between his working all day and then doing brain-related exercises like word games at night, she felt as if “it’s almost like [she was] not just parenting” Nathanael herself but also having to do Blevins’s parenting as well.

As noted, Dr. Houtz saw Blevins only once, after suit had been filed, an appointment from which he prepared his expert report that was introduced at trial. Dr. Houtz did not review Blevins’s medical records in connection with preparing that report, did not interview Mrs. Blevins or any of Blevins’s co-workers about their observations of his cognitive functioning before and after the wreck, and accepted Blevins’s self-reporting of a “severe” concussion and accident-related cognitive problems.

Although on appeal Blevins argues that Dr. Houtz’s testimony about Blevins’s “brain injury that lacked objective support in the record, we conclude that the jury’s findings of zero damages were not contrary to the great weight and preponderance of the evidence, nor were those findings manifestly unjust.

Objective injuries reflected in the medical records

In addition to what Blevins did and did not testify to concerning injuries unrelated to his alleged brain trauma with cognitive deficits—testimony that was scant at best—the hearing on Blevins’s motion for new trial underscored what his approach to damages had been at trial:

*12 Court: As I recall, and I may not recall everything, I mean, you certainly didn’t argue that they ought to be given a certain amount of money for the hematoma on the head. As I recall, your arguments were he ought to be awarded a million dollars or up to a million dollars and no less than 300,000. And that was based upon this theory of a closed-head injury, which I think the jury could reject it.

Blevins’s Counsel: I believe you’re right that the jury could reject that there was a post-head injury with lingering ongoing cognitive deficits because there is uncontroverted, unchallenged evidence....

But, Your Honor, I don’t think I told the jury, even though I did, you know, request a large amount of money, of course it was based on my belief that there was an ongoing cognitive issue. I didn’t tell them to discount other injuries that he suffered that may have supported a much lower verdict amount.

As State Farm points out, this exchange does not suggest that Blevins ever actually asked the jury to award non-economic damages for any of his other, objective injuries such as the concussion, the bruise and swelling on his head, or the abrasion on his leg. But regardless of whether Blevins might have made such a request in his closing argument—which does not seem to be the case, and he certainly did not do so in his opening—we cannot conclude from this record that Blevins sustained a serious or significant objective injury for which the jury was obligated to compensate him.

It is true that a concussion, traumatic-brain-injury claim) warranted an award of damages, the record does not show it. Blevins testified to pain in his back and neck for which he sought treatment; the Arlington Orthopedic Associates record dated November 17, 2011, indicates that he “started developing neck pain about three weeks” after the accident. Blevins otherwise spoke only of having injured his shoulder, having bruising on his face from the air bags, and perhaps “one of [his] knees or legs was hurting, [his] right leg, maybe.”

In light of Blevins’s very limited testimony concerning physical pain, which did not even involve the bruise and bump on the top of his head or his leg scrape, we conclude that the jury properly exercised its discretion by not awarding damages for past and future physical pain and mental anguish. Put differently, the jury’s decision is not contrary to the great weight and preponderance of the evidence, nor do we see it as manifestly unjust or shocking, upon these facts. See In re Orren, 533 S.W.3d 926, 930 (Tex. App.—Tyler 2017, orig. proceeding) (noting that “where the evidence of pain is conflicting, scant, or more subjective than objective, appellate courts are generally more reluctant to determine a jury finding of no damages is contrary to the great weight and preponderance of the evidence”).

In the typical personal-injury case in which a zero-damages award for pain and suffering is affirmed despite objective injuries, the jury has been afforded the opportunity to compensate the injured party through an award of medical expenses even while also concluding that the injured party “never suffered pain warranting a money award.” Blizzard, 756 S.W.2d at 805).

*13 Here, though, Blevins did not seek to recover his medical expenses; Mrs. Blevins testified that their health insurer had paid Blevins’s medical bills and that no bills remained unpaid.14 But simply because the jury had no opportunity or need to compensate Blevins for seeking medical attention does not mean that it was thereby required to compensate him for pain and mental anguish arising from his relatively minor objective injuries.

The jury also declined to award damages for past and future disfigurement or for past and future physical impairment. As part of our evidentiary-sufficiency review, we must consider the evidence unique to each category of non-economic damages. Golden Eagle Archery, 116 S.W.3d at 773.

“Disfigurement” is recognized as “that which impairs the appearance of a person, or that which renders unsightly, misshapen or imperfect, or deforms in some manner.” Fajardo v. Fuentes, No. 01-10-00650-CV, 2011 WL 4500843, at *2–3 (Tex. App.—Houston [1st Dist.] Sept. 29, 2011, no pet.) (mem. op.) (noting that disfigurement damages are “necessarily speculative” and affirming zero-damages award for claimed disfigurement from abdominal bruises). Given the jury’s broad discretion, we cannot say that its failure to award disfigurement damages was against the great weight and preponderance of the evidence.

The same is true of physical impairment, a damages category that encompasses loss of the injured party’s former lifestyle, the effect of which “must be substantial and extend beyond pain, suffering, mental anguish, lost wages or diminished earning capacity.” Enright, 330 S.W.3d at 402. Here too, Blevins says only that his injuries were “necessarily accompanied” by physical impairment and that State Farm did not contest the “obvious fact” of physical impairment. But our independent review of the record has turned up no evidence of physical impairment, as cases define that term, and so we cannot conclude that the jury went against the great weight and preponderance of the evidence in such a way as to show a manifest injustice.

We overrule Blevins’s first two issues.

ISSUES THREE & FOUR

What a Jury Should Know About UIM Coverage

Standards of Review; Legal Principles

Blevins’s last two issues, which he briefed together and which we will analyze together, deal with what and how much a jury should hear about UIM coverage in a case like this. Blevins maintains that the trial court erred by quashing his trial subpoena for a State Farm representative to appear, and also by declining to expand on a jury instruction about Blevins’s UIM coverage.

*14 We review both issues for an abuse of discretion. See Romero v. KPH Consolidation, Inc., 166 S.W.3d 212, 225 (Tex. 2005).

Trials involving UIM coverage are unique in that before an insured like Blevins is entitled to any UIM benefits under his policy, he must first establish the other driver’s negligence and his own damages. See Mid-Century Ins. Co. of Tex. v. McLain, No. 11-08-00097-CV, 2010 WL 851407, at *1, *3 (Tex. App.—Eastland Mar. 11, 2010, no pet.) (mem. op.).

Implicit in this rule is that, after the jury’s verdict, one or both parties will present evidence to the court on UIM coverage limits, liability policy limits of the other motorist, and any other payments received by the insured for which the UIM carrier is entitled to credit. This information is necessary for the trial court to enter a judgment based on the issues answered by the jury and those the court determines as a matter of law.

Sims, 2015 WL 7770166, at *6. As a consequence, such evidence is “not relevant to the controversy resolved by the jury” and is “best heard at a hearing after the verdict ....” Id.

And while it is true that a plaintiff must prove the existence of UIM coverage—and hence that “injection of insurance is unavoidable in UIM cases”—that reality does not mean that evidence of the UIM coverage limits is admissible. Id. at *8.

Here, State Farm and Blevins stipulated that he had such coverage, meaning that Blevins had no need to “prove” it in the sense of introducing the policy itself.15 For the trial court’s use, State Farm read a stipulation into the record at the beginning of the second day of trial:

The parties stipulate that Olivia Head and Lesley Matos were previous parties to this lawsuit, whose claims were settled.

Olivia Head was insured by a liability policy providing $30,007 of coverage. And that policy was tendered in exchange for a full release with consent by State Farm.

Lesley Matos was insured by a liability policy providing $100,000 in liability coverage. Ms. Matos settled her claim with the plaintiff, agreeing to pay $40,000 in exchange for the full release with consent from State Farm.

*15 State Farm stipulates that Bill Blevins was insured by a UIM/UM policy providing $100,000 per person in coverage, and that policy was in effect on October 2nd, 2011.

The parties further stipulate that there are no other policies of insurance or bonds that would cover Olivia Head and Lesley Matos for the occurrence at issue and damages to the plaintiff caused by their negligence.

As the Sims court recognized, it is improper for a jury to know policy limits for either an allegedly underinsured driver or the UIM-policy insured:

One reason for not allowing evidence of the other motorist’s liability limits is to prevent the jury from knowing the threshold over which the UIM carrier may have a contractual obligation to pay. The same reasoning applies to the introduction of UIM policy limit amounts, because the jury’s knowledge of that amount could affect its damages verdict.

Id.

Because it would have been improper for the jury to have heard much about Blevins’s UIM coverage, and because applying its terms would have been a job for the trial court if Blevins had gotten a favorable jury verdict on damages, we disagree with Blevins that a State Farm representative should have testified at trial. His trial subpoena contained twelve categories of information, none of which bore on the sole issues for trial: (1) the relative liability of Olivia Head and Lesley Matos, and (2) Blevins’s damages. Although Blevins argues that he should have been allowed to question a State Farm representative in his “breach of contract” case, he did not (yet) have any contract claims to pursue: State Farm would have breached a contract only if it refused to pay UIM benefits after their amounts were established, such as by a favorable jury verdict in this lawsuit. See Brainard, 216 S.W.3d at 818 (recognizing that 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” and that “[n]either requesting UIM benefits nor filing suit against the insurer triggers a contractual duty to pay”).

Blevins argued below that a corporate representative could have confirmed that the non-economic damages he sought were of the sort covered by the UIM provision. But as State Farm points out, the policy language—which, as statutorily required, tracks Pressil v. Gibson, 477 S.W.3d 402, 408 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (“Whether damages or particular remedies are available to a plaintiff is a question of law.”). We conclude that the trial court did not abuse its discretion by quashing Blevins’s trial subpoena, and we therefore overrule his third issue.

*16 As for Blevins’s final issue concerning the trial court’s failure to give his requested jury instruction, that issue was not preserved for appeal. Blevins apparently asked for a “part two” to the instruction that was actually given. The instruction given was: “State Farm issued a policy to William Blevins providing coverage for UM/UIM damages and that such policy was in effect on October 2, 2011, the date of the collision at issue.” Although the record does not contain the exact language that Blevins sought to include as part two, from the parties’ discussions on the record of proposed stipulations at the trial’s beginning, we understand that he wanted a second jury instruction to this effect: that “the parties further stipulate that William Blevins’ UM/UIM policy provided coverage up to the limit of his policy for damages, if any, that were caused in this collision and for which there was no coverage, or insufficient coverage, on the liability policy or policies of the at-fault driver or drivers.” That language was never submitted in written form either as a suggested stipulation or as a requested jury instruction.

Blevins failed to preserve error, if any, in the omission of an instruction along the lines of the above language. His proposed jury questions and instructions that appear in the clerk’s record did not contain any instruction at all about UIM coverage, nor does the record contain the proposed written charge that the parties discussed at the close of all evidence and that ostensibly contained a secondary instruction similar to the above proposed stipulation. After the trial court announced that it would take out the “second part,” Blevins’s counsel said this:

Your Honor, plaintiffs have requested an instruction that the jury be informed that the UIM/UM policy that Mr. Blevins purchased provided coverage for all of the damages, if any, that they’re going to assign dollar figures to when they’re answering the questions. I think that’s important, because the jury knows that this is a case that’s against State Farm. And there was expression during this trial that – that they didn’t understand why State Farm would be responsible for damages caused by unrelated third parties.[16] This is just an attempt to, first of all, help the plaintiff meet their burden of proving up coverage as well as just to let the jury know the reasons that State Farm is in the lawsuit so that they understand the damages are covered by the UM policy.

Rule 278 provides that “[f]ailure to submit a definition or instruction shall not be deemed a ground for reversal of the judgment unless a substantially correct definition or instruction has been requested in writing and tendered by the party complaining of the judgment.” Hall v. Hubco, Inc., 292 S.W.3d 22, 29 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) (holding that any error in trial court’s failing to instruct jury on law of contract formation was waived where complaining party did not offer proposed instruction in writing). We thus conclude that Blevins has waived any complaint about the absence of “part two” of a jury instruction about UIM coverage and overrule his fourth issue.

Conclusion

Having overruled each of Blevins’s appellate issues, we affirm the judgment below.

Dissenting Memorandum Opinion by Justice Birdwell (to follow)

DISSENTING MEMORANDUM OPINION

Dissenting Memorandum Opinion by Justice Birdwell

The faultless victim of a high-impact automobile collision, Appellant William Blevins, sustained uncontroverted, significant intracranial hemorrhage, eventually resulting in a discharge diagnosis of concussion with the prescription of pain medication and medical follow-up, as necessary. Describing these acute, objective, and medically-documented injuries as “limited and relatively insignificant,” the majority affirms the jury’s award of no damages for past physical pain. See Majority Op. at 28. Because the decisions of our court and of other Texas courts compel the opposite result, I would hold that the jury’s finding that Blevins sustained no compensable past physical pain whatsoever was so against the great weight and preponderance of the evidence as to be manifestly unjust, thereby requiring a new trial. I, therefore, dissent.2

Jury’s zero-damages award for past physical pain is contrary to the evidence

*17 Texas courts have traditionally held that when a factfinder receives uncontested evidence establishing a plaintiff’s objective personal injuries, a zero-damages verdict for past physical pain must be reversed and a new trial ordered. See generally Estrada v. Dillon, 44 S.W.3d 558, 561 (Tex. 2001) (affirming application of Monroe and Hammett objective injury analysis to zero-damages award for past physical impairment).

The principle of objective injury is historically well-developed by this court. For example, in Hammett, we explained that to uphold a jury’s zero-damages finding in the face of uncontroverted evidence of objective injury, the evidence must have provided the jury a reason for finding that “the injured party’s injury was unaccompanied by any pain and suffering.” Id. at 666–68. Stated differently, we held that no rational jury could find that one of the plaintiffs suffered no pain whatsoever. See id.4

*18 As to the other plaintiff in Hammett, although the same treating physician reached a similar diagnostic conclusion based upon her subjective complaints and his physical examination, there were no radiological studies confirming the diagnosis as there were for the other plaintiff. Accordingly, we held that the purely subjective nature of her complaints justified the same jury in finding that she suffered no pain whatsoever. Id. at 668–69.5 Comparing as it does the injuries sustained by similarly situated plaintiffs in the same accident, Hammett remains this court’s best example for distinguishing objective from purely subjective injuries when addressing zero-damages challenges, confirming that jurors may exercise their prerogative to disbelieve evidence of the latter,6 but not the former. See 28 Tex. Jur. 3d Damages § 279 (2019) (citing Hammett as primary authority for objective injury analysis).

The majority recognizes this traditional, well-developed analysis, stating that when “testimony about pain and mental anguish is accompanied by uncontroverted, objective evidence of an injury—for an obvious example, loss of a limb, or broken bones—appellate courts are more likely to overturn a zero-damages award for past pain and mental anguish.” Majority Op. at 20 (citing In re State Farm Mut. Auto. Ins., 483 S.W.3d 249, 263 (Tex. App.—Fort Worth 2016, orig. proceeding)). Nevertheless, anticipating that the supreme court will eventually confirm its implication in Golden Eagle Archery that an objective injury can be sufficiently insignificant or de minimis as to permit a jury to exercise its credibility prerogative to disbelieve that the plaintiff experienced any physical pain associated therewith,7 the majority relies on certain pre-and post-Golden Eagle Archery decisions that either conflict with or are factually distinguishable from our analysis in Hammett. Majority Op. at 21.

*19 For example, in In re State Farm, upon which the majority primarily relies, we recited the insignificant-injury principle and applied it when the plaintiff was stopped at a red light, the defendant bumped the plaintiff’s car from behind at less than four miles per hour, the plaintiff’s car sustained minor damage, the plaintiff left the scene of the accident without feeling injured, the plaintiff drove his vehicle to work and worked the rest of the day without problems, and the plaintiff later received diagnoses of muscle spasms and a disc protrusion or herniation. Id. at 264. We explained in part,

It was undisputed that the accident occurred at a very low speed, causing less than $800 in damage to [the plaintiff’s] car and no damage to [the defendant’s] car. The jury heard conflicting evidence about the severity of [the plaintiff’s] injuries and whether his injuries were caused by the collision.[8] [The plaintiff] was instructed to return to the CareNow clinic in seven to fourteen days if his condition did not improve or return immediately if his condition worsened, but there was no evidence that he returned to the clinic.

Id.

Similarly, other post-Golden Eagle Archery decisions affirm zero-damages verdicts, but only when evidence of the existence or likely cause of the objective injury invoked the jury’s credibility prerogative, not when the existence or likely cause of the injury was uncontested. See McGuffin, 732 S.W.2d at 426 (noting that after a car accident, the plaintiff did not complain of any injury at the scene, responded that “she did not know” whether she was injured, returned home, later complained of pain, and first showed an objective injury three weeks after the accident).

*20 Summarizing these decisions, an objective injury appears to be sufficiently insignificant or de minimis to sustain an award of zero damages for past physical pain when (1) the severity of the accident involves a low to moderate impact resulting in little or moderate damage to the plaintiff’s vehicle, (2) the plaintiff does not evidence the objective injury at the scene of the accident or personally treats it as insignificant by declining to seek immediate medical diagnosis and treatment, (3) subsequent diagnostic examination reveals no or minimal objective sequelae of injury that are not also attributable to other causes such as ordinary degeneration or a pre-existing injury or condition, and (4) the plaintiff’s subjective medical history and complaints are the primary basis for diagnosis and treatment. When sufficient evidence of these criteria exists, a jury is deemed within its credibility prerogative to disregard or disbelieve objective evidence of physical injury.

Applying these criteria, however, the objective, undisputed evidence that Blevins suffered significant head trauma does not support the majority’s insignificant-injury conclusion. Initially, as to the severity of the accident, the uncontested photographic and testimonial evidence demonstrated that at least two separate vehicles struck Blevins with sufficient force to completely destroy both front wheel wells of his vehicle and trigger the deployment of the driver-side air bag. Such damage required his forceable extraction from the vehicle and completely disabled its continued operation. Accordingly, nothing about the severity of the accident permitted the jury to disregard its occurrence as a possible source of traumatic personal injury.

Second, the undisputed evidence shows that Blevins sustained significant head trauma not attributable to any other cause but the collision. Not only did he lose consciousness as a result thereof, a disinterested bystander motorist who witnessed the accident thought Blevins was dead as she approached his vehicle to help. This same Good Samaritan thereafter observed him regain consciousness, but described his level of consciousness as confused and disoriented: “The man, you could tell something was wrong with him because his eyes was open, but he was not comprehending.... You could see in his eyes that the lights--the lights were on, but nobody was home; there was just nothing there.”9

Blevins thereafter required emergency transport to a hospital for treatment for pain and neurological evaluation. With a working diagnosis of hematoma to the top of his head:

Arrived to find pt. c-spined and backboarded in the back of ambulance on[ ]scene. Medstar crew advised that pt. was restrained driver o[f] one of the vehicles in a 4 car mvc. Pt. had hematoma to top of head. Pt. was treated, monitored and transported without further injury or illness.

*21 In documenting his mental disorientation, the EMTs employed the Glasgow Coma Scale, a “scale for measuring the level of consciousness, especially after a Rio Grande Reg’l Hosp., Inc. v. Villarreal, 329 S.W.3d 594, 601 n.6 (Tex. App.—Corpus Christi–Edinburg 2010, pet. dism’d by agr.) (citing Glasgow Coma Scale, available at https://medical-dictionary. thefreedictionary.com/Glasgow+Coma+Scale (last visited Feb. 26, 2019)).

Contrary to the majority’s suggestion that Blevins’s “near perfect total” on the Glasgow assessment left the jury free to disregard his injury as insignificant, see Majority Op. at 9–10, 28–29, the EMTs objectively confirmed he suffered from some degree of mental confusion on two of the three Glasgow assessments they had conducted before transporting him to the hospital. Finally, the EMTs documented significant “Headache/Migraine” of a severity of 5 on a scale of 10. At the time they left the scene of the accident, there was clear, uncontested objective evidence of significant head trauma, and the pain associated therewith, and absolutely no basis for the jury to conclude that Blevins suffered no pain whatsoever as a result of the collision.

Third, upon arrival at the hospital, the emergency room staff admitted Blevins complaining of headache and repetitive questioning. Before he was seen by a physician, the staff performed three separate Glasgow assessments on Blevins, each documenting some degree of mental confusion consistent with the EMTs’ previous assessments.

The attending physician’s notes subsequently confirmed Blevins’s chief complaint as headache with loss of consciousness and memory loss:

William Blevins is a 54 y.o. male who presents to the ED for HA [headache] s/p MVC. Pt was the restrained driver in a PT cruiser. Pt states that he does not remember the wreck. According to nursing, Pt was c/o the HA at the top of his head. Positive neck pain but negative CP [chest pain] or ABD [abdominal] pain. The first thing that Pt remembers after the wreck is being in the ambulance. Pt states that his left thumb hurts when he moves it. According to mother, another driver ran a red light and hit Pt on the passenger side. Pts car ended up in a tree and 4 other cars were involved. Pt does not remember when his last tetanus shot was. Pt is not on any medication at home. There are no other Sx [symptoms] at this time.

By his review of systems, the physician noted Blevins was “positive” for headaches and neck pain, but negative for dizziness, light-headedness, or mental confusion. By his physical exam, the physician observed a contusion to the top of the head, but found Blevins to be neurologically intact, giving him a Glasgow assessment with no deficits. The doctor did note, however, that Blevins was “[a]mnestic of events” leading to his transport and admission for emergency diagnosis and treatment.

As a result of his initial assessment, the doctor prescribed intravenous CT scan of the head was: “No definite acute intracranial process. There is soft tissue swelling overlying the entire left side of the head. No underlying fracture is seen.”

*22 After Blevins spent approximately five hours in the ER, the doctor eventually discharged him as suffering from a concussion, prescribed medications for both pain and nausea, and recommended follow-up with his family physician, as needed. The doctor’s discharge instructions indicated that a concussion requires a few days for recovery and that, during that time, Blevins might experience continued headaches. But the doctor further instructed Blevins to seek immediate medical care if he experienced severe, persistent headaches.10

Finally, Blevins’s subjective medical history and complaints were not the primary basis for his emergent diagnosis and treatment. At the time of his discharge, diagnostic evaluation of Blevins, post-accident, revealed clear, objective evidence of significant lumbar sprains)).

In fact, in Horn v. State Farm Insurance, our sister court in Tyler held that the jury’s zero-damages verdict in a factually similar uninsured motorist case was against the great weight and preponderance of the evidence because the uncontested, objective evidence established that the plaintiff sustained a “moderately severe” Id. at 267. In reversing and remanding for a new trial, the court of civil appeals held,

Although the amount of damages is ordinarily left to the discretion of the jury under the evidence before them, the jury cannot ignore the undisputed facts and arbitrarily fix an amount neither authorized nor supported by the evidence. In the instant case, there is nothing in the record indicating that [the insured] was not injured or that she did not suffer any pain. The undisputed facts disclose that [she] did suffer pain. Thus, the finding of the jury that [she] suffered no damages is not only unsupported by any evidence, but directly contrary to all the evidence. In our view[,] the verdict was manifestly wrong[,] and the trial court should have granted a new trial.

*23 Id. at 268 (citations omitted).

Applying Hammett and Horn, there is nothing in this record indicating that Blevins was not injured by the collision or that he did not suffer any pain as a direct result thereof. Accordingly, there was absolutely no basis for the jury to disregard the objective evidence of head trauma and conclude that Blevins suffered no pain whatsoever as the immediate result of the collision.

The majority’s insignificant-injury analysis appears to predicate its holding that the jury was within its credibility prerogative to disregard this evidence, at least in part, on the grounds that Blevins “never set the stage for an award of damages” based on his objective injuries, particularly by failing to reference the evidence pre-admitted in the form of his medical and hospital records. See Majority Op. at 23, 27–31. While it is true that the primary foci of his evidentiary presentation were the alleged long-term neuropsychological consequences of the collision, as particularly articulated through the testimony of Dr. Houtz, Blevins did not expressly so limit his request for damages. For example, he specifically described his concussion as a “severe injury” during opening statement. He also told the jury about the internal bleeding in and swelling of his head.

Because the parties waived a transcription of closing arguments, the record does not reveal what Blevins urged the jury to answer in response to the damages question in the charge, but there is no doubt he asked the jury to compensate him for “[p]hysical pain and mental anguish sustained in the past” in an amount more than zero. Moreover, given the fact that State Farm agreed to the admission of Blevins’s medical and hospital records for the jury’s consideration on this very question––and never once challenged either his discharge diagnosis or any of the objective findings of head trauma made by the EMTs or the emergency room staff in reaching such diagnosis, including those of the diagnostic radiologist and the treating physician,11––it is highly unlikely that State Farm actually urged a zero-damages verdict upon the jury, particularly when it could have reasonably and more credibly argued for a valuation of damages well within the approximately $70,000 settlement credit to which it was entitled and still obtained a “take nothing” defense judgment.

For all of these reasons, I would hold that the jury’s finding of zero damages for Blevins’s past physical pain was so against the great weight and preponderance of the credible evidence as to be clearly wrong and unjust and was therefore based on factually insufficient evidence. I would sustain his second issue and remand for a new trial. Because the majority does not, I dissent.

DISSENTING OPINION ON DENIAL OF EN BANC RECONSIDERATION1

Dissenting Opinion on Denial of En Banc Reconsideration by Justice Birdwell

*24 When a jury renders a zero-damages verdict in the face of uncontroverted, objective evidence of injury, there is reason to question the deliberative process resulting in that verdict. See Brainard v. Trinity Universal Ins., 216 S.W.3d 809 (Tex. 2006). Specifically, I urge the court to clarify the nature of the cause of action to be adjudicated when trying a UM/UIM coverage dispute, including the manner in which that cause of action accrues (or otherwise becomes ripe for subject matter jurisdiction) and the manner of instructing the jury to obtain a true verdict resolving what is clearly a coverage dispute.3

Zero-damages verdict likely found no contractual “UM/UIM damages”

Contrary to the factual sufficiency analysis of the majority, a comprehensive review of the record does not reveal that the jury’s verdict simply reflected its rejection of the traumatic neuropsychological injury urged by Blevins, but reflects obvious confusion concerning whether the noneconomic damages made the subject of its deliberations arose from a denial of coverage.4 As observed by Blevins in seeking reconsideration en banc, during its deliberations, the jury presented a note containing two questions to the trial court. The note evidenced understandable confusion as to whether the jury’s answers to the damages questions should reflect the contract damages Blevins sustained due to State Farm’s alleged wrongful denial of coverage—as the case was actually tried—or the tort damages actually sustained by Blevins as a result of the negligence of the individual settling defendants—as the case was actually submitted:

[Have] there been any payments under the UM/UIM part of the State Farm policy?

*25 Are the Non-Economic damages part of the UM/UIM coverage?

Both questions reveal that State Farm’s contractual obligations under its policy were the subject of the jury’s deliberations, asking (1) whether State Farm had already made payments to Blevins under its UM/UIM policy and (2) whether the noneconomic damages that were the subject of Question No. 3—the noneconomic tort damages question—were within State Farm’s UM/UIM coverage. Quite literally, the jury asked whether tort damages for past physical pain and mental anguish were within State Farm’s UM/UIM contractual coverage and whether State Farm had already paid such damages. Given the nature of the coverage dispute between Blevins and State Farm, as well as the manner in which they tried this case, the jury’s confusion is not surprising.

To begin with, having seated and sworn the jury, the trial court expressly instructed the jurors to “not guess or consider whether any party is covered by insurance unless [the court] tell[s] you to do so.” See Tex. R. Civ. P. 226a (Jury Instructions Prescribed By Order, Section, II.9. (“Do not consider or guess whether any party is covered by insurance unless I tell you to.”)). At that point in the trial, however, every member of the jury had participated in a selection process identifying Blevins as the plaintiff insured; State Farm as the defendant insurer; State Farm’s policy as insuring Blevins for bodily injuries caused by the negligence of an underinsured motorist; and the lawsuit as involving a coverage dispute concerning State Farm’s contractual liability to Blevins for the payment of UIM benefits.

Moreover, outside the presence of the jury, Blevins and State Farm stipulated that the coverage dispute was the justiciable controversy to be tried, confirming that (1) Blevins had settled with the two individual tort defendants for amounts approved by State Farm and paid by their respective and independent liability policies and (2) “Blevins was insured by a UIM/UM policy providing $100,000 per person in coverage, and that policy was in effect on October 2[ ], 2011.” And in the presence of the jury, neither Blevins nor State Farm characterized the dispute between them to be anything other than contractual in nature.

*26 Additionally, although we do not have a transcript of voir dire in the record, certain undisputed references to its substance make it clear that the case was tried as a coverage dispute. For example, concerned that the jury might misapprehend the nature of the dispute, Blevins urged the trial court, outside the jury’s presence before opening statement, to reconsider its previous ruling quashing a subpoena issued for a corporate representative to explain the contractual coverage issue in relation to the tort damages questions that would be the subject of the court’s charge. Blevins observed, without contradiction from State Farm, that during voir dire “there was confusion to the point of almost chaos about what a UIM policy covers.” Blevins further observed,

The jury’s going to understand that State Farm is the defendant in this case, not the person who caused the damages. And that’s what the genesis of the confusion of the jury was about: “Well, what does this cover? I don’t understand. I need to see the policy,” that type of thing. Those are the things that having an insurance company representative could clarify for the jury. It would be a short, quick, easy line of questioning that would clarify the issues. We don’t want the jury to be making decisions and entering a verdict based on confusion. I think the voir dire process, which happened after the Court’s initial ruling, illustrated the reasons why I think we really should have somebody here from the insurance company.

Declining to reconsider its previous ruling, the trial court nevertheless confirmed that the coverage dispute was a prominent feature of voir dire, stating, “It’s my view that the voir dire process was a good indication of why none of that ought to be injected in the case. It isn’t relevant in a case where they’re just going to be ask[ed] to determine damages.”

Thereafter, and throughout the course of the trial, Blevins argued that State Farm wrongfully denied payment of benefits under his UM/UIM policy. In response, State Farm contested that theory of liability by confirming through his wife (1) State Farm’s payment for the property damage to their vehicle, and (2) payment of other medical and hospital bills through the Blevins’s health insurance, as well as (3) the absence of any outstanding medical bills still to be paid.5 Moreover, when Mrs. Blevins said that State Farm’s refusal of UM/UIM coverage upset her, State Farm challenged her to tell the jury when State Farm had so refused, clearly suggesting that no refusal had ever occurred.

By way of this particular cross-examination, State Farm informed the jury that it had already paid property damages––and suggested that it had also paid medical and hospital expenses––thus inviting the jurors to infer that the policy had already paid any and all damages that could form the basis of Blevins’s UIM claim.6 Thereafter, during the charge conference, despite Blevins’s stated concern that the jury would be confused by the distinction between coverage and tort damages,7 State Farm successfully objected to the inclusion of an instruction that would have simply informed the jury that the tort damages addressed by Question No. 3 were damages covered by the UM/UIM policy.8

*27 Having previously instructed the jury to consider insurance coverage only if instructed to do so, the trial court then submitted a charge that instructed the jury to consider that “State Farm issued a policy to William Blevins providing coverage for UM/UIM damages and that such policy was in effect on October 2, 2011, the date of the collision at issue.” Having heard evidence and argument concerning a contractual dispute between Blevins and State Farm over UM/UIM coverage, then having been instructed by the court to consider that coverage in answering the liability and damages questions, the jury quite understandably sought guidance during its deliberations concerning how to reconcile the terms “UM/UIM damages” in the coverage instruction and the noneconomic personal injury “damages” to be awarded in Question No. 3.9 Without apparent objection from either party, the trial court declined to provide any clarification, other than to refer the jury back to the evidence and the charge itself. There being no confirmation that any of the noneconomic damages to be awarded in Question No. 3 were “UM/UIM damages” covered by the State Farm policy and having heard Mrs. Blevins confirm that there were no outstanding medical expenses (possibly due, in part, to State Farm policy payments), the jury returned its zero-damages verdict. Viewing the uncontroverted objective evidence of significant head trauma in light of the court’s preliminary and charge instructions to the jury, and the jury’s manifest confusion concerning the “damages” in question given the coverage dispute and payments made, the refusal of the jury to award any damages for past physical pain and mental anguish—in effect, its refusal to find that Blevins sustained any injury whatsoever—is so against the great weight and preponderance of the evidence as to require reversal and remand for a new trial.

Why Brainard needs reconsideration

The jury’s confusion in deliberating damages likely finds its origin in a historical anomaly in Texas UM/UIM jurisprudence whereby the supreme court invalidated sub silentio the contractual arbitration provisions of the Texas Family Automobile Policy mandated by former article 5.06–1 of the Texas Insurance Code and the early decisions of the supreme court interpreting it are in order.

Adjustment12 by arbitration intended to avoid conflict of interest, irreconcilable jury verdicts, and an unenforceable agreement to agree

*28 “In 1967, the Legislature enacted article 5.06–1 expressly provided:

No automobile liability insurance ... covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state unless coverage is provided therein or supplemental thereto, in the limits described in the Texas Motor Vehicle Safety-Responsibility Act, under provisions prescribed by the Board, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom.

See Act effective Oct. 1, 1967, 60th Leg., R.S., ch. 202, § 1, 1967 Tex. Gen. Laws 448, 448 (emphasis added). As can be seen from the italicized language, the “coverage provided” was expressly “provided ... under provisions prescribed by the [State] Board [of Insurance].” See id.

Indeed, in article 5.06–1 “incorporated” the uninsured motorist coverage provisions of the then-existing Texas Family Automobile Policy promulgated by the Board:

The standard automobile insurance policy form in use when the Legislature enacted 5.06–3(a) by using the phrase “any insured named in the policy,” we can safely assume that it considered the TFAP while drafting and enacting these statutes.

Id. at 118 (footnote omitted); see also Kemp v. Fid. & Cas. Co. of N.Y., 512 S.W.2d 688, 690 (Tex. 1974) (op. on reh’g).

At the time of Innocent Victims 1959, 38 Tex. L. Rev. 154, 163–64 (1959) (observing uninsured motorist coverage first approved by Insurance Commission in 1957, with the “[d]etermination of legal entitlement to damages against the uninsured ... to be arrived at by agreement between the insured and the company or by arbitration”).

*29 To confirm the historical accuracy of this contention, it is necessary, as did Sanchez, to reference the terms of the then-existing TFAP incorporated by former Glen Falls Ins. v. McCown, 236 S.W.2d 108, 109 (Tex. 1951) (observing that Insurance Commission “authorized and directed to prescribe a uniform standard automobile insurance policy so that all parties at interest may know what their respective rights and obligations are under it”).

Reviewing the terms of the State Farm TFAP, Part IV—Protection Against Uninsured Motorists, Coverage U, prescribed the following:

To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called “bodily injury,” sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile; provided, for the purposes of this coverage, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree, by arbitration.

See State Farm TFAP, supra note 14, at 495 (emphasis added); see also Hohenberg Bros. Co. v. George E. Gibbons & Co., 537 S.W.2d 1, 3 (Tex. 1976) (“While no particular words are necessary for the existence of a condition, such terms as ‘if’, ‘provided that’, ‘on condition that[,]’ or some such other phrase that conditions performance, usually connote an intent for a condition rather than a promise.”).

Critically, the exact proviso is found in the State Farm TFAP in issue in Matlock, a policy originally issued and renewed before the enactment of article 5.06–1’s effective date:

*30 Coverage UDamages for Bodily Injury Cause by Uninsured Automobiles. To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile; provided, for the purposes of this coverage, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree, by arbitration.

... No judgment against any person or organization alleged to be legally responsible for the bodily injury shall be conclusive, as between the insured and the company, of the issues of liability of such person or organization or of the amount of damages to which the insured is legally entitled unless such judgment is entered pursuant to an action prosecuted by the insured with the written consent of the company.15

See, supra, note 13; article 5.06–1).

In the State Farm TFAP, if the parties could not reach an extracontractual agreement as to the insured’s legal entitlement, they agreed to submit the dispute to binding arbitration, the process for which was expressly set forth in the State Farm TFAP:

Arbitration. If any person making claim hereunder and the company do not agree that such person is legally entitled to recover damages from the owner or operator of an uninsured automobile because of bodily injury to the insured, or do not agree to the amount of payment which may be owing under this Part, then, upon written demand of either, the matter or matters upon which such person and the company do not agree shall be settled by arbitration in accordance with the rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Such person and the company each agree to consider itself bound and to be bound by any award made by the arbitrators pursuant to this Part.

See State Farm TFAP, supra note 14, at 495 (emphasis added).

Similarly, in the Matlock TFAP, if the parties could not reach an extracontractual agreement as to the insured’s legal entitlement, they expressly agreed to submit the dispute to binding arbitration—although through a different process mirroring the one employed for property damage appraisals:

*31 15. Arbitration. If any person making claim hereunder and the company do not agree that such person is legally entitled to recover damages from the owner or operator of an uninsured automobile because of bodily injury to the insured, or do not agree as to the amount payable hereunder, then each party shall, upon written demand of either, select a competent and disinterested arbitrator. The two arbitrators so named shall select a third arbitrator, or if unable to agree thereon within 30 days, then upon the request of the insured or the company[,] such third arbitrator shall be selected by a judge of a court of record in the county and state in which such arbitration is pending. The arbitrators shall then hear and determine the question or questions so in dispute, and the decision in writing of any two arbitrators shall be binding upon the insured and the company, each of whom shall pay his or its chosen arbitrator and shall bear equally the expense of the third arbitrator and all other expenses of the arbitration. Unless the parties otherwise agree, the arbitration shall be conducted in the county and state in which the insured resides and in accordance with the usual rules governing procedure and admission of evidence in courts of law.

See Matlock TFAP, supra note 15, at 136 (emphasis added).

Additionally, the only adjudication contemplated by both the State Farm and Matlock TFAPs was cooperative, not adversarial—a judgment of liability and damages against the uninsured motorist, obtained by the insured on behalf of the insurer for the sole purpose of satisfying the insurer’s right of subrogation for a payment of uninsured motorist benefits already made to the insured:

16. Trust Agreement. In the event of payment to any person under this coverage

(a) the company shall be entitled to the extent of such payment to the proceeds of any settlement or judgment that may result from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury because of which such payment is made[;]

(b) such person shall hold in trust for the benefit of the company all rights of recovery which he shall have against such other person or organization because of the damages which are the subject of claim made under this coverage;

(c) such person shall do whatever is proper to secure and shall do nothing after loss to prejudice such rights[;]

(d) if requested in writing by the company, such person shall take, through any representative designated by the company, such action as may be necessary or appropriate to recover such payment as damages from such other person or organization, such action to be taken in the name of such person[;] in the event of a recovery, the company shall be reimbursed out of such recovery for expenses, costs and attorneys’ fees incurred by it in connection therewith;

(e) such person shall execute and deliver to the company such instruments and papers as may be appropriate to secure the rights and obligations of such person and the company established by this provision.

Compare id. at 136 (emphasis added), with State Farm TFAP, supra note 14, at 495.

Indeed, as the italicized language makes clear, this Trust Agreement contemplated that the insurer would pay the claim, then provide legal representation to the insured to prosecute the insured’s tort cause of action to a judgment against the uninsured motorist, all to the end of obtaining reimbursement for the amount already paid in UM benefits by the insurer. Compare Matlock TFAP, supra note 15, at 136, with State Farm TFAP, supra note 14, at 495. And to guarantee the cooperation of the insured in prosecuting the tort cause of action against the uninsured motorist, the policy (1) expressly excluded coverage in the event the insured settled with the uninsured motorist without the written consent of the insurer and (2) expressly rejected the binding effect of any judgment the insured obtained against the uninsured motorist, again, without the written consent of the insurer. Compare Matlock TFAP, supra note 15, at 136–37, with State Farm TFAP, supra note 14, at 495. The policy also expressly prohibited the insured from prosecuting any action against the insurer directly unless and until the insured complied with all terms of the coverage. Compare Matlock TFAP, supra note 15, at 133, with State Farm TFAP, supra note 14, at 496.

*32 Finally, the proof of claim and payment provisions of the State Farm and Matlock TFAPs make no mention whatsoever of any triggering of State Farm’s duty to pay through the filing of a lawsuit by the insured against the insurer:

11. Proof of Claim; Medical Reports. As soon as practicable, the insured or other person making claim shall give to the company written proof of claim, under oath if required, including full particulars of the nature and extent of the injuries, treatment, and other details entering into the determination of the amount payable [hereunder]. The insured and every other person making claim [hereunder] shall submit to examinations under oath by any person named by the company and subscribe the same, as often as may reasonably be required. Proof of claim shall be made upon forms furnished by the company unless the company shall have failed to furnish such forms within 15 days after receiving notice of claim.

The injured person shall submit to physical examinations by physicians selected by the company when and as often as the company may reasonably require and he, or in the event of his incapacity his legal representative, or in the event of his death his legal representative or the person or persons entitled to sue therefor, shall upon each request from the company execute authorization to enable the company to obtain medical reports and copies of records.

....

17. Payment of Loss by the Company. Any amount due hereunder is payable (a) to the insured, or (b) if the insured be a minor to his parent or guardian, or (c) if the insured be deceased to his surviving spouse, otherwise (d) to a person authorized by law to receive such payment or to a person legally entitled to recover the damages which the payment represents[;] provided, the company may at its option pay any amount due hereunder in accordance with [provision] (d) hereof.

Compare Matlock TFAP, supra note 15, at 136, with State Farm TFAP, supra note 14, at 496. The insured’s uninsured motorist claim was to be adjusted before the initiation of any litigation against the insurer, with company forms, examinations under oath, and medical record authorizations, not original petitions, interrogatories, requests for production, or depositions duces tecum. Compare Matlock TFAP, supra note 15, at 136, with State Farm TFAP, supra note 14, at 496.

Reading the entirety of the agreement, therefore, the phrase “legally entitled to recover” did not even remotely contemplate a “direct action” between the insured and the insurer to trigger the insurer’s duty to pay a claim for uninsured motorist benefits. See Carpenter v. N. River Ins., 436 S.W.2d 549, 551–53 (Tex. App.—Houston [14th Dist.] 1968, writ ref’d n.r.e.) (reversing trial court’s dismissal of insureds’ action to reduce UM arbitration award to judgment).

*33 Looking at these provisions, the requirement of arbitration to resolve coverage disputes was clearly intended to avoid inconsistent litigation outcomes and irreconcilable conflicts between insurer and insured. See generally Earl J. Hanson, Uninsured Motorist Coverage: Are Conflicts Inherent in Every Provision?, 29 Mont. L. Rev. 183, 188–90 (1967) (“Whenever a claim is made for benefits under uninsured motorist coverage, the insurance company could possibly be involved in disputes with their own policy holders and conflicts of interest may arise. One of the advantages of arbitration under the uninsured motorist coverage is avoidance of such potential conflicts.”). As ably articulated by the court of appeals in Allstate Insurance v. Hunt, these conflicts are inherent if considering the uninsured motorist insurer to be the liability insurer—a fiduciary—of the uninsured motorist (and the cause of action to be a direct action against the uninsured motorist insurer on the underlying tort, as urged herein by State Farm):

Serious ethical problems arise when an insurance company seeks to participate in the defense of an uninsured motorist. There may be (1) a potential or actual conflict of interest between the insurance company and its own insured and (2) there may be a potential or actual conflict of interest between the insurance company and the uninsured motorist. As the representative of the uninsured motorist the company stands in a fiduciary relationship to him. As the insurer of one suing the uninsured motorist it has, contractually, not only the right but also the duty to represent its insured in defense of any claim that may be asserted against him as a result of the collision in question, and thus stands in a fiduciary relationship to him. Thus to permit the insurance company to defend the uninsured motorist is to permit it to assume a fiduciary relationship to two parties having conflicting interests in the subject matter of the trust. We consider first the conflict of interest between the insurance company and the uninsured motorist.

Under the Texas statute the insurance company is subrogated to the rights of its insured. If the insurance company pays a claim to its insured under the policy, it may attempt to recover that amount from the uninsured driver. In an instance where the company has directly defended the uninsured motorist in a suit instituted by the insured, and then purposes its subrogation claim, it would be seeking a judgment against its former client. This serious ethical problem is not presented under the facts presented in the instant case. A kindred problem does arise under what will hereafter be discussed.

Of immediate concern is the conflict of interest between the company and its own insured. If the insured brings suit against the uninsured motorist and the company is permitted to defend such uninsured motorist, the company would attempt to prove either the negligence of its own insured, or the uninsured motorist’s freedom from negligence. Either determination would inure to the benefit of the insurance company. The company interests are therefore opposed to those of its own insured.

Although a counterclaim was not asserted by the uninsured motorist here, the possibility of such a counterclaim’s being asserted in other cases cannot be overlooked for such action compounds the conflict of interest problems. If the insurance company undertakes to represent the uninsured motorist who later decides to file a cross-action against the insured, what then is the insurance company’s course of action? In defending its own insured against such cross-action the company will attempt to establish that its insured was not negligent or to establish that the uninsured motorist was also negligent. Either of these contentions are opposed to the position the insurance company takes as an intervening party defendant in the original action by the insured against the uninsured motorist. Either contention is opposed to the insurance company’s position in representing the uninsured motorist.

*34 Interestingly, in any situation where the insurance company is permitted to undertake a dual representation the most favorable result for the company is for both its insured and the uninsured motorist to be found contributorily negligent. Such a determination would preclude the insurance company’s liability. To contend for this most favorable result, however, makes for a conflict of interest between the insurance company and both the insured and the uninsured motorist.

The textwriters and the courts caution against accepting any case where a conflict of interest might arise in the future. When the uninsured motorist first seeks counsel, the posture of the parties is not clearly established, yet in every instance the possibility exists that he will assert a claim or a counter-claim against the insured. Thus, if an insurance company undertakes to defend or assist in the defense of an uninsured motorist a potential conflict of interest is always present.

As has been heretofore indicated some, though by no means all, jurisdictions permit intervention or participation by the insurance company. In some of these states intervention is held to be a matter of right and in others it depends on the permission of the court. We are of the opinion, however, that the conflict of interest that is in every case potentially present compels a determination that the insurance company must refrain from representing the uninsured motorist or from intervening in an uninsured motorist case such as the one here presented. Only such determination will eliminate the possibility of the conflict of interest arising.

There are other considerations which support this determination. Aside from the conflict of interest problem it would scarcely be countenanced if the insurance company actually undertook to represent both the uninsured motorist and its own insured. And while there may be some question concerning the insurance company’s position in regard to the uninsured motorist, there is little controversy relative to its obligation to its own insured. The primary obligation of the company issuing automobile liability coverage is to defend the insured against suits alleging damages within the terms of the policy, even though such suit may be groundless, false or fraudulent. The uninsured motorist provision on the other hand relates to a considerably more restricted liability under an ancillary provision in the policy. We do not believe that an insurance company should be permitted to voluntarily place itself in a position under an ancillary policy provision where it cannot ethically fulfill its basic contractual obligation to defend its insured.

Allstate Ins. v. Watson, 876 S.W.2d 145, 150 (Tex. 1994) (op. on reh’g) (“Were we to extend to third party claimants the same duties insurers owe to their insureds, insurers would be faced with owing coextensive and conflicting duties. An insurer owes to its insured a duty to defend the insured against the claims asserted by a third party. Recognizing concomitant and coextensive duties ... to third party claimants, parties adverse to the insured, necessarily compromises the duties the insurer owes to its insured.”).

Finally, if adjustment by arbitration was not incorporated or otherwise intended by the legislature’s enactment of Radford v. McNeny, 104 S.W.2d 472, 475 (Tex. [Comm’n Op.] 1937)). Legal entitlement was clearly a “material and essential term” of the existing TFAP incorporated by the legislature per Sanchez. Without an enforceable arbitration provision, however, uninsured motorist coverage depended solely upon the agreement of the insurer that the insured was legally entitled to recover damages from an uninsured motorist. There would be no enforcement mechanism for triggering the insurer’s duty to pay.

*35 Since the only express provision for a determination of legal entitlement by adjudication was in the event the interests of the insurer and insured were completely aligned, i.e., when the insurer agreed to be bound by a judgment obtained against the uninsured motorist––and in that event the terms of the incorporated TFAP granted the insurer the sole authority to control such litigation through the assignment of counsel and to obtain, through subrogation, full reimbursement of benefits paid, as well as litigation expenses and attorney’s fees incurred––an interpretation of article 5.06–1 invalidating its arbitration provisions would effectively negate the existence of any uninsured motorist coverage. Compare Matlock TFAP, supra note 15, at 136–37, with State Farm TFAP, supra note 14, at 495–96.

Adjustment by “direct action” likely adopted by Matlock because executory agreements to arbitrate future disputes were unenforceable

So why did the supreme court prescribe a “direct action” for resolving uninsured motorist claims in State Farm Mutual Automobile Insurance v. Matlock? It appears that the court did so because, at the time of the enactment of Matlock, 462 S.W.2d at 278. Unfortunately, this conclusion can only be reached by inferential analysis of the appellate record because the court prescribed this remedy without explaining its reasoning. See id.

Having suffered personal injuries and a totaled motor vehicle due to the negligence of an allegedly uninsured motorist, William and Ivory Matlock sued State Farm directly for damages after unsuccessfully attempting to invoke the arbitration provision of their policy. See Matlock TFAP, supra note 15, at 4, 8–11, 13–16, 143–53. Significantly, the Matlocks did not assert a specific cause of action against State Farm; nor did they seek specific performance of the arbitration provisions of their policy, though they quoted the legal entitlement proviso in their pleadings. See id. at 8–11, 13–16. Instead, they alleged their compliance with the terms and conditions of their uninsured motorist coverage, as well as the factual circumstances of the October 14, 1967 accident establishing their personal injuries and property damage and the liability and uninsured status of the other vehicle. See id.

*36 By way of response, State Farm generally denied these allegations and sought to “abate and dismiss” the lawsuit as “premature” because the Matlocks had not complied with the terms and conditions of their coverage: “In this connection, Defendant would show that as a condition precedent to a suit directed against this Defendant, the Plaintiff must first have legally determined whether or not the alleged adverse driver is legally liable to the Plaintiff for their damages and injuries, if any, growing out of the accident referred to in said suit.” See id. at 18–19. Although not expressly alleging that a mature claim for benefits required adjudication of the tort cause of action against the other driver, State Farm clearly urged the trial court to reject any interpretation of the policy treating its uninsured motorist coverage as liability insurance for the other driver that would thereby authorize a direct action against the insurer. See id.

On appeal from a judgment awarding damages to the Matlocks, State Farm challenged the trial court’s denial of its plea in abatement arguing that “an insured must first establish that he is ‘legally entitled to recover damages’ against an adverse party and the amount thereof before instituting an action directly against his insurer under ‘uninsured automobile coverage,’ ” and the Matlocks had not done so. See id. at 155, 160–61, 180. Acknowledging the existence of some authority from other jurisdictions for the “direct action method” employed by the Matlocks in securing the judgment, State Farm nevertheless urged the court of appeals to interpret the phrase “legally entitled to recover” to require the insured to obtain a judgment of liability and damages against the alleged uninsured motorist as a condition precedent to bringing an action against the insurer. See id. at 180–82.

Critically, State Farm omitted from its briefing the proviso in the policy providing for a determination of legal entitlement by agreement or arbitration. Compare id., with Matlock TFAP, id. at 137. State Farm further never disclosed to the court of appeals that the policy rendered any judgment obtained against the uninsured motorist nonbinding and, therefore, superfluous for purposes of legal entitlement, if done without the written consent of the insurer. See id. at 180–82. Finally, despite urging error in the trial court’s denial of its plea in abatement until the Matlocks obtained such a judgment, nothing in the record evidenced that State Farm had ever given them written consent to sue the other driver. Stated differently, State Farm urged the court of appeals to interpret “legally entitled to recover” to require the Matlocks to obtain a judgment of liability and damages against the uninsured motorist that would establish their legal entitlement only against the uninsured motorist, not State Farm. See id.

The Matlocks responded by simply urging the court of appeals to adopt the direct action method adopted by courts in Arkansas, Missouri, Oklahoma, North Carolina, and New York, arguing that nothing in the policy required a judgment as a condition precedent to the payment of benefits. See id. at 199, 211–14. They, too, made no reference to arbitration or the legal entitlement proviso. See id. at 211–14.

The court of appeals affirmed the judgment of the trial court, holding that both id. at 85.

Significantly, however, all but one of those decisions adopted the direct action remedy because the common law or the statutory law of their states did not permit the enforcement of executory agreements to arbitrate future disputes. Boughton v. Farmers Ins. Exch., 354 P.2d 1085, 1088–91 (Okla. 1960).

*37 In Wortman, for example, the district court specifically rejected the insurer’s contention that a judgment against the uninsured motorist was a condition precedent because of the arbitration process set forth in the policy:

The provisions of the contract itself refute this contention. Arbitration is the device designated by the parties to determine whether the insured is legally entitled to damages from the uninsured motorist. Since arbitration is impossible in Arkansas, some other method must be used to determine whether the uninsured motorist is legally liable to the insured. The plaintiff, insured, has alleged facts sufficient to sustain a finding that the said insured is legally entitled to damages against the uninsured motorist. I see no reason why this court cannot make this determination as well as an arbitrator.

227 F. Supp at 470–71.

Similarly, in Boughton, the supreme court refused to declare the insured’s uninsured motorist coverage forfeit in the face of an unenforceable arbitration proviso:

We cannot sustain [the insurer]’s contention that if the arbitration provision is unenforceable or the “no action” clause is void, all parts of the insuring agreement dealing with uninsured motorists’ coverage are void. The insured paid consideration for the insurance whereby she was protected against uninsured motorists. The primary and essential part of the contract was insurance coverage, not the procedure for determining liability. [The insurer] prepared the policy and is charged with knowledge that stipulations to arbitrate future controversies are unenforceable and contracts restricting a party thereto from enforcing his rights by the usual legal proceedings in the ordinary tribunals are void. If [the] insurer imposed provisions in the policy which were unenforceable and void[,] it cannot deny liability under the insuring agreement because of the unenforceable and void provisions. Such provisions cannot invalidate or hold for naught a liability which the insurer agreed by contract to assume. A contrary rule would, in effect, be giving legal force to provisions which are unenforceable and void. We therefore hold the insuring agreement dealing with uninsured motorists’ coverage is not void.

354 P.2d at 1089–90.

So even though the opinion of the court of appeals in Matlock did not specifically address the enforceability of the arbitration process, its adoption of the direct action remedy implicitly acknowledged the common law foreclosure of that process, absent express statutory authority. None of the cited decisions, however, nor any of the arguments of the parties, considered the possibility that a statutory mandate of uninsured motorist coverage could provide such authority by expressly incorporating the existing policy terms, including the legal determination proviso, as Sanchez concluded article 5.06–1 had done. This is the ultimate origin of the historical anomaly eventually created by the supreme court.

Upon application to the supreme court for a writ of error, State Farm again argued that the phrase “legally entitled to recover” made a judgment against the uninsured motorist a condition precedent to coverage:

Thus the question has arisen as to the proper construction of the phrase “legally entitled to recover” as that phrase is determinative of the proper mode of proceeding in an action to recover on such coverage. The question is simply whether the insured may proceed directly against his insurer or must first establish the liability of the “uninsured motorist” and the amount of damages?16

*38 Again, State Farm made no mention of arbitration or the legal entitlement proviso of its policy. See Writ App, supra note 16, at 10–16. Nor did it offer to be bound by any judgment so obtained by the Matlocks if the supreme court agreed with its interpretation and reversed the court of appeals. See id. In response, the Matlocks simply restated their previous arguments, including the same citations to the decisions of other jurisdictions.17

Significantly, the only amicus curiae filing a brief before submission asked the court to consider the specific terms and conditions unique to uninsured motorist coverage in the Matlock TFAP when interpreting the phrase, “legally entitled to recover,” including the arbitration language of the legal entitlement proviso:

The interpretation of insurance–contract provisions has its own set of standards and rules; but, it is noteworthy that the Standard Form for such coverage takes pains to specifically define and describe at length the following: “persons insured,” “exclusions,” “limits of liability[,]” and[ ] contains seven “additional definitions” and eight “additional conditions.” An insured would be reasonable and justified in thinking that such an important condition as a prior lawsuit would be stated clearly in the contract. [State Farm] can claim no magic in the adjective “legally,” having agreed in the insurance contract to settle the issue of legal liability by agreement with the insured; or, failing agreement, by arbitration.18

The amicus further observed that State Farm was disingenuously urging the supreme court to interpret article 5.06–1 as mandating a different, antecedent form of insurance, i.e., unexecuted judgment coverage:

Unsatisfied judgment policies are available to the public and it should not be deceived by artful drafting of the terms of uninsured automobile insurance. “For decades insurance companies have been writing unsatisfied judgment policies and are knowledgeable in the art of specifically requiring an unsatisfied judgment as a condition precedent to their liability and to a suit directly against the insurer, if that is the insurer’s intent. Here, there is no language in the policy that requires an unsatisfied judgment to establish the legal liability, or the amount thereof, of the owner or operator of the uninsured automobile.”

See Amicus Brief, supra note 18, at 11, 13 (quoting Hill, 374 S.W.2d at 611). Finally, the amicus warned against a multiplicity of lawsuits, the risk of inconsistent verdicts, and the probability of conflicts of interest between the insured and the insurer if the court imposed an adjudication condition precedent. See id. at 15–16.

Interestingly, in apparent response to the amicus brief, State Farm filed a supplemental brief proposing the adoption of a modified direct action remedy that tried the tort cause of action against the uninsured motorist first before trying the coverage claim in a second, separate trial pursuant to rule 174.19 State Farm argued that separate trials would avoid the prejudicial injection of insurance into the trial of the insured’s claim against the uninsured motorist to the detriment of the insurer, but permit resolution of the coverage claim without a second lawsuit. See Supp Brief, supra note 19, at 22–24.

*39 On April 1, 1970, the supreme court unanimously affirmed the court of appeals. article 5.06–1 and the relevant portions of the Matlock TFAP, including the legal entitlement proviso, the court concluded that the phrase “legally entitled to recover” did not require actual adjudication of the underlying tort cause of action against the uninsured motorist as a condition precedent to State Farm’s contractual liability under the policy:

The Texas “Uninsured Motorist” statute is quoted in full above. This statute does not require the filing of a prior suit against the uninsured motorist to determine legal liability and damages as a condition precedent to the filing of a suit against one’s own insurer. The statute is absolutely silent on whether a direct action against the insurer is proper. Endorsement 230 of the insurance policy quoted above, which was promulgated by the Texas State Board of Insurance, giving uninsured motorist protection, is also silent as to the proper mode of proceeding.

State Farm contends that the following policy provision requires a holding that the insured must first proceed to judgment against the uninsured motorist before filing suit against his insurer. It obligates the insurer to pay the insured as follows:

“To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury sustained by the insured....” (Emphasis petitioner’s.)

This policy provision does not, in our opinion, require a successful lawsuit against the driver of an uninsured automobile as a condition precedent to recovering on the insurance contract.

We hold that in an uninsured motorist case, the insured may maintain a direct action against his insurer without first litigating against the uninsured motorist. The necessity of two trials on the issues of liability and damages is thereby eliminated. In cases wherein the insurance company has refused to give its consent to sue an uninsured motorist, the provision in the policy under coverage U would require two such trials. In a direct proceeding against the insurer, a policyholder will be able to avoid the expense and the lengthy delay of litigating two separate lawsuits for the purpose of collecting one judgment. We can find no justification in forcing a party, for whom express statutory protection has been enacted, to endure protracted litigation and expense in order to collect damages to which he proves himself justly entitled under policy coverage for which he has paid the premiums.

The fact that one of the parties in litigation happens to be an insurance company and that insurance companies may not be popular with juries, by no means makes it immune from being sued under the terms of its own contract. It may be true that the injection of insurance during a trial tends to influence the verdict not only as to liability but as to the amount of damages involved, but we do not find this factor to be controlling. Direct actions against hospitalization, life and Workmen’s Compensation carriers are now commonplace.20 Liability of the insurer to the insured in an uninsured motorist case arises by virtue of the specific provisions of the contract above quoted.

See id. at 289–90 (emphases added). From the italicized language, the court made implicitly clear that, although the terms adopted by the Board controlled State Farm’s liability, the arbitration language in the legal entitlement proviso was “silent as to the proper mode of proceeding” or otherwise unenforceable. See id. at 289.

*40 When State Farm subsequently sought rehearing, however, the supreme court granted the motion, set aside its judgment affirming the court of appeals, withdrew its opinion in support thereof, and rendered judgment that the Matlocks take nothing on the ground that they had failed to meet their burden of proving the other driver was uninsured. Id. at 278. Unfortunately, although expressly referencing its original ruling, the court declined to restate much of its reasoning in this new opinion:

State Farm is before this court upon points which urge that the Matlocks failed to obtain a judgment against the uninsured motorist. It says that a judgment against the uninsured motorist is a condition precedent to the Matlocks’ action against State Farm. In our original opinion, we held that neither Article 5.06–1, Insurance Code, V.A.T.S., nor the policy provisions of the insurance contract between State Farm and the Matlocks required the Matlocks to obtain a judgment against an uninsured motorist prior to seeking a judgment against the insurer.

See id. Instead, the court agreed with State Farm’s second rehearing argument––“that the Matlocks failed to prove that the driver of the other vehicle was an uninsured motorist”––approving part of a New York Supreme Court opinion holding that “the absence of insurance upon the offending vehicle and its driver is a condition precedent to the applicability of the uninsured driver endorsement.” Id. (quoting Merchants Mut. Ins. v. Schmid, 288 N.Y.S.2d 822, 825 (N.Y. Sup. Ct. 1968) (allowing arbitration of UM claim to proceed)). As a result, the court adopted a “direct action” remedy for uninsured motorist claimants that implicitly invalidated the legal entitlement proviso of the Matlock TFAP and thereby appeared to treat the coverage afforded thereby as liability insurance for the uninsured motorist.

Adjustment by direct action adjudicated a breach of contract cause of action, not the underlying tort cause of action against the uninsured motorist

Although Matlock left the impression that the direct action remedy adopted was merely an adjudication of the underlying tort cause of action against the effective liability insurer of the uninsured motorist, the supreme court immediately rejected such an interpretation in Id. at 152–55. So, to the extent Matlock authorized a direct action against the insurer, it could not be one predicated upon the traditional liability insurer–insured relationship.

In Employers Casualty Co. v. Clark, the supreme court next made clear that the cause of action to be adjudicated in a Matlock direct action was one for breach of contract, not negligence. Nunn, 464 S.W.2d at 416–17 (affirming judgment overruling uninsured motorist insurer’s plea of privilege because insured resided in county wherein contractual cause of action against private corporation “arose”).

*41 Similarly, in State Farm Mutual Automobile Insurance v. White, the court of appeals affirmed the overruling of State Farm’s plea of privilege in an uninsured motorist case because, as a foreign corporation, the insurer was amenable to venue in the county of suit “where the cause of action or a part thereof accrued.” 461 S.W.2d at 480 (citing former version of venue statute). In so holding, the court rejected State Farm’s rather surprising argument that the insured failed to establish the accrual of a breach of contract cause of action:

[State Farm] contends that venue cannot be sustained under [the foreign corporation exception] because there is no proof showing that the insurance company refused to pay the damages. There [State Farm] says [the insured] failed to establish a breach of contract giving rise to a cause of action and there being no cause of action, a “part” of a cause of action could not have “accrued” in Gregg County. We are not impressed with this argument. In view of [State Farm]’s general denial denying any obligation under the contract [State Farm]’s argument appears to be frivolous and wholly without merit.21

See id. Notably, State Farm’s assertion of a breach of contract cause of action as the basis for an uninsured motorist claim anticipated the supreme court’s decision in Clark but came at the same time State Farm was urging the supreme court in Matlock to adopt a modified direct action method treating uninsured motorist insurance like liability insurance for the uninsured motorist.

The supreme court subsequently reaffirmed the contractual nature of the Matlock direct action in Id. at 791–92.

Moreover, the court expressly rejected Allstate’s assertion that the phrase “legally entitled to recover” did not create a “debt” within the meaning of former article 5527, observing that decisions from other jurisdictions had interpreted the phrase not to require a “sum certain” in the form of a judgment of liability and damages against the uninsured motorist, but “to mean simply that the insured must be able to show fault on the part of the uninsured motorist and the extent of the resulting damages.” Merriman v. Swift & Co., 204 S.W. 775, 776 (Tex. App.––Fort Worth 1918, writ ref’d) (“ ‘Indebted,’ in the dictionary, is defined as ‘having contracted or incurred a debt.’ ‘Indebtedness, or debt, is whatever one owes, or in a purely technical sense is that for which an action of debt will lie; a sum of money due by certain and express agreement.’ ” (quoting unavailable reference source)).

*42 Finally, the supreme court confirmed in Id. at 166. Insured by National under a policy that included uninsured motorist coverage, “Arnold made timely demand for payments up to the [$10,000] limit and an independent insurance adjusting firm recommended, within six months following the date of the accident, that [National] pay the entire policy limit to Arnold. [National] refused to pay although it [was] not clear when it specifically denied the claim.” Id.

Arnold sued both the uninsured motorist and National and, in December 1977, obtained a judgment against both defendants “for approximately $17,975.” Id. After National paid him the $10,000 policy limit, Arnold filed a second lawsuit against National on December 27, 1978, “alleging various statutory causes of action and a common law cause of action for [National]’s breach of its duty of good faith and fair dealing in its handling of his claim.” Id. The trial court eventually granted National a summary judgment on all claims, which the court of appeals upheld on appeal. Id.

The supreme court subsequently reversed the summary judgment, recognizing for the first time a common law duty on the part of an insurer to adjust a policy claim fairly and in good faith:

A cause of action for breach of the duty of good faith and fair dealing is stated when it is alleged that there is no reasonable basis for denial of a claim or delay in payment or a failure on the part of the insurer to determine whether there is any reasonable basis for the denial or delay. Arnold pleaded and produced sufficient summary judgment proof to raise an issue of material fact that [National] had no reasonable basis for its refusal to pay his uninsured motorist claim and with actual knowledge of that, forced him to a trial on the accident before it would pay the claim.

Id. at 167 (emphasis added). In recognizing the duty, the court emphasized that, without its imposition, insurers could arbitrarily deny uninsured motorist coverage or delay payment of an uninsured motorist claim—due to the disparity of bargaining power and the insurer’s exclusive control over the adjustment of the claim through its investigation, evaluation and disposition—“with no more penalty than interest on the [just] amount owed.” See id.

Critically, as the italicized language above demonstrates, the actionable breach the court described was National’s forcing Arnold to file and prosecute his Matlock action to judgment when there was no reasonable basis for denying or delaying payment of his uninsured motorist claim. See id. Observing that the summary judgment evidence included an admission of fault by the uninsured motorist, a recommendation by an independent adjusting firm that National pay Arnold’s claim, and a failure on the part of National to investigate his alleged contributory negligence, the court concluded “[a]n issue of fact was raised as to [National]’s reasonableness in failing to settle the claim and forcing Arnold to trial.Id. at 166–67 (emphasis added).

Summarizing the development of uninsured motorist jurisprudence from Matlock through Arnold, therefore, the policy and statutory phrase “legally entitled to recover” never meant that an uninsured motorist claim accrued only after the insured obtained a final adjudication of the uninsured motorist’s liability and damages, whether against the uninsured motorist or the insurer. The incontestable fact that the legislature mandated uninsured motorist coverage that included a legal entitlement proviso limited to agreement and arbitration directly contradicts any interpretation of Are You in Good Hands? Whether Bad Faith Actions for Wrongful Denials of Uninsured and Underinsured Motorist Claims Still Exist in Texas, 65 Baylor L. Rev. 1086, 1095–1104 (2013) (questioning the continued viability of Arnold after Brainard).

As mandated by Brainard, adjustment by adjudication conflicts with the clear holdings of Matlock and its progeny, and is irreconcilable with the holding in Arnold

*43 In Brainard, the supreme court finally addressed an issue that had been percolating through the intermediate appellate courts for almost two decades, i.e., whether Chapter 38 of the Texas Civil Practice and Remedies Code authorized an award of attorney’s fees in the event a Brainard, 216 S.W.3d at 818.

Given that the existence of a duty to pay the just amount owed, in turn, depended upon the insured’s legal entitlement to recover damages against the underinsured motorist, the supreme court concluded that the presentment contemplated by Chapter 38, absent an extracontractual agreement between the parties, required the UIM insured to obtain a final adjudication of the liability and underinsured status of the other motorist:

The UIM insurer is obligated to pay damages which the insured is “legally entitled to recover” from the underinsured motorist. As discussed above, we have determined that this language [in the UM/UIM statute] means 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. Neither requesting UIM benefits nor filing suit against the insurer triggers a contractual duty to pay. Where there is no contractual duty to pay, there is no just amount owed. Thus, under Chapter 38, a claim for UIM benefits is not presented until the trial court signs a judgment establishing the negligence and underinsured status of the other motorist.

Of course, the insured is not required to obtain a judgment against the tortfeasor. The insured may settle with the tortfeasor, as Brainard did in this case, and then litigate UIM coverage with the insurer. But neither a settlement nor an admission of liability from the tortfeasor establishes UIM coverage, because a jury could find that the other motorist was not at fault or award damages that do not exceed the tortfeasor’s liability insurance. Brainard’s contention that a UIM policy is to be treated like other contracts, for which damages are liquidated in a judicial proceeding and attorney’s fees incurred are recoverable, misinterprets the nature of UIM insurance. The UIM contract is unique because, according to its terms, benefits are conditioned upon the insured’s legal entitlement to receive damages from a third party. Unlike many first-party insurance contracts, in which the policy alone dictates coverage, UIM insurance utilizes tort law to determine coverage. Consequently, the insurer’s contractual obligation to pay benefits does not arise until liability and damages are determined.

Id. (citations omitted). Accordingly, whether interpreting article 5.06–1 or the terms of the UM/UIM policy itself, the supreme court held that legal entitlement, as an essential element of presentment, requires a final determination by adversarial adjudication of the liability and uninsured or underinsured status of the other motorist. See id.

Moreover, because the supreme court had previously recognized that an UM/UIM insurer has a right to appeal such a judgment without implicating any extracontractual liability, Brainard effectively holds Texas insurers harmless from any contractual obligation to pay through the exhaustion of all appeals. See Mid-Century Ins. of Tex. v. Boyte, 80 S.W.3d 546, 548–49 (Tex. 2002) (holding that upon entry of the UIM judgment against the insurer, the relationship between insurer and insured became one of judgment debtor and judgment creditor). Under Brainard, therefore, the contractual adjustment and statutory presentment of a UM/UIM claim requires the initiation of a lawsuit by the insured against the insurer, its successful prosecution through the entry of a final judgment, and the successful defense of said judgment through final appeal. Only then does the policy impose upon the insurer a duty to pay “the just amount owed” in benefits to the insured, whose legal expenses in merely triggering the duty may substantially offset the amount to be paid.22

*44 Not only is such a process counterintuitive to the original remedial purposes of Hamaker v. Am. States Ins. of Tex., 493 S.W.2d 893, 895 (Tex. App.—Houston [1st Dist.] 1973, writ ref’d n.r.e.) (“[U]ninsured motorist laws are remedial.”).

Reconsideration of Brainard would have avoided the jury’s confusion in this case

Although couched in terms of a declaratory judgment action, Blevins clearly tried a breach of contract cause of action, urging the wrongful denial of a preexisting contractual duty to pay UIM benefits on the part of State Farm. See Nickerson, 216 S.W.3d at 824 (“In this case, State Farm had no contractual duty to pay benefits until the trial court rendered judgment for Nickerson.”).

Indeed, based upon the supreme court’s rulings in Brainard, Norris, and Nickerson, State Farm not only specially excepted to the accrual of any contractual cause of action for the payment of UM/UIM benefits to Blevins, it also rejected, by verified denial, that Blevins had even provided notice or proof of his UM/UIM claim due to his failure to obtain a final adjudication of his legal entitlement to damages: “Until this condition is satisfied, there is no obligation under the policy to pay UM/UIM benefits that can be breached.” State Farm even challenged—again, by verified denial—the right of Blevins to initiate this very litigation to obtain such a final adjudication against State Farm, invoking the “no legal action” provision of its policy: “No legal action may be brought against us until there has been full compliance with all terms of this policy.” This last, of course, begs the question of how a UM/UIM insured obtains a final adjudication if such final adjudication itself is a condition precedent to instituting a legal action against the insurer?23

*45 Because Brainard and its progeny contemplate the accrual of the insured’s contractual UM/UIM cause of action against the insurer only after the full and final adjudication of the insured’s tort cause of action against the uninsured or underinsured motorist, resulting in a judgment against the insurer, but Matlock and its progeny expressly reject the proposition that the UM/UIM insurer is nothing more than the liability insurer of the uninsured or underinsured motorist, juries such as the one in this case can easily misapprehend the nature of the verdict required of them. Although the actual dispute between the parties before them is one of contractual coverage, controlled by the terms of the policy, the jury must render a verdict of tort liability and damages, measured by a totally distinct set of common law prerequisites. The fact that tort liability and damages form the measure for contract liability and damages only enhances the potential confusion.

Absent a proper explanation of the interrelation between UM/UIM coverage and the tort liability of the uninsured or underinsured motorist, questions like “Why is the insured’s insurer defending the other motorist?” and “What damages are covered by the policy?” will quite naturally arise during deliberations, as they did here. And if the insurer is able to legally argue that its contractual obligation to pay will not arise unless the jury renders a verdict as to the other driver, many jurors will understandably wonder what actual controversy they’ve been summoned to court to resolve. Only had Hunt approved the insurer’s anonymous trial defense of the uninsured motorist would a simple trial of the underlying tort cause of action be possible. But as the supreme court observed, such an arrangement would likely create unresolvable conflicts of interest between the insurer and the insured.

Had the trial court below simply answered the jury’s questions with a basic explanation of the interrelation between the tort damages made the subject of Question No. 3 and the UM/UIM damages covered by the State Farm policy,24 the jury likely would have awarded an amount for Blevins’s past physical pain and mental anguish, as demonstrated by the objective evidence of significant head trauma he suffered on the day of the accident. But, quite possibly, the jury would have found the evidence of neuropsychological injury not credible and declined to award any amount near what Blevins requested. In any event, there would likely have been no jury questions confusing coverage with liability and no factual sufficiency challenge to its credibility prerogative in dissent.

Conclusion

By leaving the contractual adjustment of a UM/UIM claim to Texas juries, before the actual accrual of any contractual cause of action, Brainard effectively treats UM/UIM coverage as standard and excess auto liability insurance for uninsured and underinsured motorists, respectively, whereby insurers such as State Farm become contractually obligated to pay policy benefits to their actual insureds only when the latter successfully prosecute direct actions against them on the underlying torts through final judgment and appeal. In this manner, actual UM/UIM insureds incredibly become third party beneficiaries to their own policies, despite paying first party premiums, and do so only after incurring an undisclosed and unrecoverable litigation surcharge in the form of attorney’s fees and legal expenses above and beyond the premium paid. Brainard effectively turned UM/UIM coverage into a “wasting” policy.25

*46 The fact that Texas UM/UIM insurers annually pay untold thousands of such claims without requiring their adjustment by adversarial adjudication does not change the fact that Brainard holds them completely harmless in the event their legally gratuitous efforts at pre-litigation claims settlement fail. Without the accrual of a justiciable cause of action between insured and insurer, and thereby an actionable breach of contract for a jury to confirm or reject by their verdict, a jury will be hard pressed to understand the interrelation between the tort answers that comprise their verdict and the contractual dispute between the parties, as happened here. Because the “direct action” contemplated by Brainard conflicts with both the legislative history of Trapp v. Shell Oil Co., 198 S.W.2d 424, 427 (Tex. 1946) (“[I]t is our duty to settle the conflicts [in our prior opinions] in order that the confusion will as nearly as possible be set at rest and so the lower courts as well as the lawyers may know how to proceed in the trial of this class of cases and to advise their clients with respect to their rights.”). By finally resolving the historical anomaly created by its decision in Matlock, through reconsideration and clarification of Brainard, the court can return conscientious Texas motorists to the contractual protection originally intended by the legislature.

With these further comments, I respectfully dissent from the denial of en banc reconsideration.

Footnotes

1

Unless the jury’s attention was directed to parts of Blevins’s medical records during the non-transcribed closing arguments, during the trial the jury heard very little of what was in those records, and even then not until State Farm cross-examined Blevins’s expert. The jury could, of course, have theoretically combed through the voluminous records during its deliberations. We have independently reviewed those records as part of our evidentiary-sufficiency analysis and summarize their contents here as they relate to Blevins’s appellate issues.

2

Additionally, Dr. Bailey wrote that Blevins “described himself as, typically, a ‘scammer’ who can, eventually figure things out to get what he needs and wants.”

3

This was the number mentioned in opening statement, although plaintiff’s counsel also opined that the damages were “several million dollars,” which counsel encouraged the jury to award to “send a message by giving him the full amount of the damages, regardless of what you may think he’ll actually get,” and even though as the jury had “heard during voir dire, there’s a limit. He purchased a certain amount of UM/UIM coverage.” Neither Blevins nor any witness testified to a dollar amount of claimed damages, no medical bills were put into evidence, and closing arguments were not recorded. But as the trial judge remarked at the hearing on Blevins’s new-trial motion, “As I recall, your arguments were he ought to be awarded a million dollars or up to a million dollars and no less than 300,000. And that was based upon this theory of a closed-head injury, which I think the jury could reject it.”

4

Claims brought on Nathanael Blevins’s behalf were settled before trial.

5

Blevins points to this interchange as proof of a traumatic brain injury.

6

After a lunch break, on re-direct Dr. Houtz clarified that a person can score 15 out of 15 and “still have a serious brain injury that’s going to cause problems the rest of their life,” and that he in fact found it “very significant” that Blevins did not receive a perfect score.

7

Blevins returned to Texas Neurology in May 2012 for continuing monitoring of his seizure disorder, for which he continued to decline to take medication. The physician’s assistant’s report of Blevins’s cortical functions was the same in May 2012 as Dr. Jenevein’s from October 2011.

8

Two years later, in November 2013, Blevins saw another chiropractor. He reported at that time that he could “concentrate fully” when he wanted to “with slight difficulty,” and on a scale of zero to ten, Blevins reported a zero in the category of feeling tense, uptight, or irritable or having difficulty concentrating.

9

The records suggest that this was a referral from MCNT to Arlington Orthopedics as a follow-through on MCNT’s October 25 notation.

10

Blevins’s wife also testified that he was “diagnosed with a severe concussion,” despite the fact that no healthcare provider ever made such a diagnosis.

11

This shift in terminology appears to have been an effort to reconcile Dr. Houtz’s earlier testimony with the contents of the medical records, which were at odds in many respects.

12

Pilkington v. Kornell, 822 S.W.2d 223, 225 (Tex. App.—Dallas 1991, writ denied) (“The so called ‘zero damages rule’ dictates, in its most basic application, that, in cases involving unliquidated damages, the jury must award something for every element of damage ‘proved,’ or else the case will be remanded for a new trial.”).

13

Neither Blevins nor his wife referred to the contents of his preadmitted medical-record exhibits. The first mention of them came during State Farm’s cross-examination of Dr. Houtz.

14

The trial court allowed this line of cross-examination after Mrs. Blevins testified on direct that “[o]ne of the things that I thought about as far as insurance covering things, medical insurance doesn’t always cover everything. Even things that are recommended that you do, insurance doesn’t always cover those expenses, and sometimes you can’t do them because of those expenses.”

15

The jury was instructed that “State Farm issued a policy to William Blevins providing coverage for UM/UIM damages and that such policy was in effect on October 2, 2011, the date of the collision at issue.”

16

Several veniremembers were apparently confused during voir dire about why State Farm would have to be paying damages, and wanted to see exactly what the policy provided. According to State Farm, all prospective jurors voicing that sentiment were struck for cause.

1

In addition to these injuries, Blevins sustained an abrasion on his right leg from his knee to his hip. Because the record reflects that the primary dispute between the parties dealt with the neuropsychological impact and valuation of Blevins’s undisputed head trauma, I address only that portion of the evidentiary record.

2

Because I concur with the majority’s resolution of the other grounds for appeal asserted by Blevins, I address only his factual sufficiency challenge by way of my dissent.

3

These exemplars of objective injury continue to be cited in our opinions and the opinions of our sister courts, even after Golden Eagle Archery. See Cesar v. Torres, No. 13-07-00471-CV, 2009 WL 2914395, at *3 (Tex. App.—Corpus Christi–Edinburg Aug. 31, 2009, no pet.) (mem. op.) (same).

4

The majority cites Hammett without acknowledging this application of the objective injury principle and without expressly overruling it. See Majority Op. at 23, 28. See also Lamb v. Franklin, 976 S.W.2d 339, 341 (Tex. App.—Amarillo 1998, no pet.) (citing Hammett and stating that “[t]o uphold a jury’s finding that an injured party incurred no damages for past pain and suffering, the jury must have found by a preponderance of the evidence that no pain and suffering accompanied the injury”).

5

Although both of the plaintiffs in Hammett waited to seek medical treatment until the day after the accident, see id. at 664, 667, 668, their treating physician obtained radiological confirmation of only the former’s diagnosis because her neck injury was sufficiently “intractable” that he hospitalized her for a neurological consult and spinal manipulation under anesthesia, id. at 667. The latter required no such hospitalization or treatment. Id. at 668. As a result, exercising their exclusive prerogative to assess the credibility of the evidence, the jury could have disbelieved the latter’s purely subjective profession of pain, but not the objective evidence documenting the former’s.

6

See also McGuffin v. Terrell, 732 S.W.2d 425, 428 (Tex. App.—Fort Worth 1987, no writ) (“The jury was accorded the privilege of considering medical reports indicating no objective symptoms and were not compelled to accept Dr. Murphy’s opinion deductions. The jury apparently did not believe appellant’s testimony as to the severity of her injuries nor her alleged pain and disability. The jury may disbelieve an interested witness even if uncontradicted.”).

7

Although the supreme court suggested in Golden Eagle Archery that a zero-damages verdict for past pain and suffering could be affirmed if the evidentiary record revealed that the injury was not “significant,” the court did not and has yet to discuss what would constitute such an “insignificant” or de minimis objective injury. See 116 S.W.3d at 775 (explaining that a verdict awarding no damages for pain and suffering should not be upheld on appeal if there is “objective, undisputed evidence of a significant injury and the jury could not have compensated the injured party in some other category of damages”). As cited above, the court has affirmed, both implicitly and expressly, the Hammett objective injury analysis for zero-damages awards in personal injury cases, which is clearly predicated upon a jury’s credibility prerogative. See supra at 4.

8

Not only did the radiological studies performed on the plaintiff after the accident alternatively reveal no objective findings by x-ray, then subsequently either a protruding or In re State Farm, 483 S.W.3d at 254–56.

9

Dr. Andrew Houtz confirmed this motorist’s “accident scene” observation of Blevins’s loss of consciousness and mental disorientation, attributing them to the high-impact nature of the collision:

[T]he severity of the blow to his head was of such force that it ... knocked him out. Even when he regained consciousness, he experienced a period of confusion and disorientation, which, again, lets us know that his brain was not processing the way it should have been for a period of time after the head injury.

....

So we know that an event happened that was severe enough to kind of knock his brain offline for a particular period of time.

State Farm never contested these observations of the Good Samaritan, nor this portion of Dr. Houtz’s testimony identifying the high-impact nature of the accident as their source.

10

Even though consistent with his discharge instructions, to the extent the record reflects that Blevins continued to suffer and receive treatment for headaches for some time after the accident, the existence and extent of his post-discharge pain was a matter of purely subjective interpretation, such that the jury was free to wholly discount this testimony, even under Hammett.

11

The majority appears to suggest that because Blevins was sparing in his references to pain and never specifically referenced the objective findings supporting its existence in his medical and hospital records, our factual sufficiency review should not include such evidence. Majority Op. at 23. We have been granted no such discretion, however, to presume to know what evidence the jury did or did not consider during its deliberations, or to otherwise depart from the general rule that we must consider “all of the evidence”—including admitted exhibits—in our factual sufficiency review. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001).

1

See Tex. R. App. P. 47.5.

2

At this time, Westlaw has not assigned internal page numbers to the dissenting memorandum opinion.

3

I must disclose here that the current method for resolving UM/UIM coverage disputes has been a noted “pet peeve” of mine for some time. See 216 S.W.3d at 823 (No. 04-0427), http://www.search.txcourts.gov/case.aspx?cn=04-0427&coa=cossup. But my briefing therein did not include any discussion of the historical anomaly discussed herein, which I discovered only after taking the trial bench. Given my history in this area of the law, I proceed with the understanding that my articulation of the anomaly will undergo strict legal and historical scrutiny by both bench and bar.

4

While I continue to agree with the majority that Blevins did not preserve any error concerning the trial court’s failure to instruct the jury on the interrelation between the tort damages clearly sustained by Blevins and the coverage obligations of State Farm under its UM/UIM policy, the jury’s coverage questions to the trial court should inform our factual sufficiency review of the verdict reached by its revealed deliberations. See Boaz v. White’s Auto Stores, 172 S.W.2d 481, 484 (Tex. 1943) (observing jury note revealed prejudicial influence of trial court’s erroneous explanatory instruction on deliberations and verdict).

5

After confirming with Mrs. Blevins that their health insurer had paid some medical and hospital bills, State Farm asked her, “And then you submitted some bills to State Farm under the Personal Injury Protection coverage that you had, and those bills were ... paid, were they not?” Blevins’s counsel objected, and the trial court held an off-the-record bench conference. When the trial court went back on the record, State Farm immediately asked, “You don’t have any outstanding medical bills still to be paid, do you?” And Mrs. Blevins answered, “No.”

6

During its cross-examination of Mrs. Blevins, although State Farm referenced its “Personal Injury Protection” coverage as the source for its possible payment of some of Blevins’s medical expenses, it did not explain the distinction between that coverage and the UM/UIM coverage in question. Nor did it identify the coverage responsible for its property damage payment, other than to generically confirm that it had refunded the deductible associated with that coverage. See Noteboom v. Farmers Tex. Cty. Mut. Ins., 406 S.W.3d 381, 382, 384 (Tex. App.—Fort Worth 2013, no pet.) (holding insurer’s refund of amount of higher collision coverage deductible in excess of amount of lower UM/UIM deductible consistent with insured’s having chosen recovery under UM/UIM coverage when policy provided coverage for property damage through both collision and UM/UIM coverages).

7

“Your Honor, plaintiffs have requested an instruction that the jury be informed that the UIM/UM policy that Mr. Blevins purchased provided coverage for all of the damages, if any, that they’re going to assign dollar figures to when they’re answering the questions. I think that’s important, because the jury knows that this is a case that’s against State Farm. And there was expression during this trial that –that they didn’t understand why State Farm would be responsible for damages caused by unrelated third parties. This is just an attempt to, first of all, help the plaintiff meet [his] burden of proving up coverage as well as just to let the jury know the reasons that State Farm is in the lawsuit so that [it] understand[s] the damages are covered by the UM policy.”

8

Sustaining State Farm’s objection, the trial court removed the instruction requested by Blevins from its proposed charge. The record does not include the actual language removed, however, for purposes of error preservation. See Tex. R. Civ. P. 278 (requiring written request and tender of omitted instruction in “substantially correct” form to preserve error).

9

See Tex. Coca-Cola Bottling Co. v. Lovejoy, 138 S.W.2d 254, 268 (Tex. App.—Eastland 1940, writ ref’d) (Funderburk, J., dissenting) (“The point, however, which is here sought to be emphasized is that if the jury did not know the meaning of the word ‘damages’—the only reason for giving a definition or explanation of such term in any event—they would gain no better knowledge from the charge. The charge performed no function of an explanation or definition of the term.”).

10

A “direct action” is one in which a tort plaintiff sues the alleged tortfeasor’s liability insurer directly on the accrued tort cause of action; Texas is not a “direct action” state, however. See Ollis, 768 S.W.2d at 723.

11

Sikes cited Murray, 437 S.W.2d at 265 (“No action exists against the insurer, under its policy, until the insured’s obligation to pay has been finally determined ‘either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and the company.’ Under such a policy a third party’s right of action against the insurer does not arise until he has secured such an agreement or a judgment against the insured.”).

12

See 34 Tex. Admin. Code § 3.355(a)(8) (2019) (Comptroller of Pub. Accounts, Ins. Servs.) (“Insurance claims adjustment or claims processing [means a]ny activities to supervise, handle, investigate, pay, settle, or adjust claims or losses.”).

13

As the supreme court observed in article 5.06–1 between its 1981 amendment and the supreme court’s issuance of Brainard on December 22, 2006, including its repeal and recodification as chapter 1952 of the Texas Insurance Code, the statutory phrase “legally entitled to recover” interpreted in Brainard was the same phrase employed in the original mandating statute. See Act effective April 1, 2007, 79th Leg., R.S., ch. 727, §§ 2, 19, 2005 Tex. Gen. Laws 1752, 1752 (“nonsubstantive revision”), 1970–72 (chapter 1952), 2187 (“This Act is intended as a recodification only, and no substantive change in law is intended by this Act.”).

14

See Transcript of Record at 493–99, 587–95, State Farm Mut. Auto. Ins. v. Pan Am. Ins. (Tex. 1969) (No. B-1184), http://search.txcourts.gov/Case.aspx?cn=B-1184&coa=cossup (click on pdf for Nov. 13, 1968 “Document Received” entry) (State Farm TFAP with policy period from March 5, 1963 to August 28, 1963 and affidavit proving up attachment of Amendatory Endorsement 158J, hereinafter, the “State Farm TFAP”). Effective June 1, 1963, the Board directed the inclusion of certain amendatory endorsements in the UM coverage previously approved as part of the Texas Standard Provisions for Automobile Policies available for purchase by Texas motorists. See id. at 127–47, 597–616 (Tex. Automobile Insurance Service Office, Circular Letter No. 211-P, dated April 1, 1963, notifying all insurance companies of the Board’s order prescribing Amendatory Endorsements 158H, 158I, and 158J as amendments to various iterations of the TFAP).

15

See Transcript of Record at 127–40, State Farm Mut. Auto. Ins. v. Matlock (Tex. 1970) (No. B-1809), http://search.txcourts.gov/Case.aspx?cn=B-1809&coa=cossup (click on pdf for Dec. 17, 1969 “Document Received” entry) (State Farm TFAP with original policy period from May 24, 1966 to November 24, 1966, and renewal receipt to extend coverage from May 24, 1967 to November 24, 1967, hereinafter, the “Matlock TFAP”).

16

See Application for Writ of Error at 2, 10–16, State Farm Mut. Auto. Ins. v. Matlock (Tex. 1970) (No. B-1809), http://search.txcourts.gov/Case.aspx?cn=B-1809&coa=cossup (click on pdf for Nov. 12, 1969, hereinafter “Writ App”).

17

See Response to Petition at 2, 8–13, State Farm Mut. Auto. Ins. v. Matlock (Tex. 1970) (No. B-1809), http://search.txcourts.gov/Case.aspx?cn=B-1809&coa=cossup (click on pdf for Dec. 11, 1969).

18

See Amicus Curiae Brief at 2, 9–10, State Farm Mut. Auto. Ins. v. Matlock (Tex. 1970) (No. B-1809), http://search.txcourts.gov/Case.aspx?cn=B-1809&coa=cossup (click on pdf for Jan. 20, 1970, hereinafter “Amicus Brief”).

19

See Supplemental Brief at 2, 22–24, State Farm Mut. Auto. Ins. Co. v. Matlock (1970) (No. B-1809), http://search.txcourts.gov/Case.aspx?cn=B-1809&coa=cossup (click on pdf for Jan. 28, 1970, hereinafter “Supp Brief”).

20

The court’s reference to hospitalization, life, and workmen’s compensation claims is instructive. All three involve claims that may arise due to the tortious conduct of third parties. The court’s reference to “direct actions” simply recognizes that, whatever the factual circumstances giving rise to the claim, including the possibility that the insured may be legally entitled to recover damages from a tortfeasor, the insured may sue the insurer directly under such policies for benefits wrongfully denied upon proper demand for payment, i.e., for breach of contract. See, e.g., Reserve Life Ins. v. Shelton, 415 S.W.2d 281, 285–86 (Tex. App.––Austin 1967, writ dism’d) (holding that each wrongful denial upon proof of separate hospitalization claims constitutes separate and distinct cause of action for breach of contract).

21

See id. at 667 (Pope, J., dissenting) (“The majority has ruled that an insurer that files a general denial after it has been sued, thereby breaches its contract and waives conditions precedent as well as the exclusions expressed in a policy.”).

22

For example, absent the extracontractual agreement of the parties, the UM/UIM coverage in the standard automobile liability policy most recently approved by the Texas Department of Insurance for State Farm expressly provides for the adjustment of any claim by adjudication through trial and appeal:

Insuring Agreement

We will pay compensatory damages for bodily injury or property damage an insured is legally entitled to recover from the owner or driver of an uninsured motor vehicle. The bodily injury must be sustained by an insured. The bodily injury and property damage must be caused by an accident that involves the ownership, maintenance, or use of an uninsured motor vehicle as a motor vehicle. If we and you do not agree as to whether or not a vehicle is actually uninsured, the burden of proof as to that issue shall be on us.

....

Deciding Fault and Amount

1. a. The insured and we must agree to the answers to the following two questions:

(1) Is the insured legally entitled to recover compensatory damages from the owner or driver of the uninsured motor vehicle?

(2) If the insured and we agree that the answer to 1.a.(1) above is yes, then what is the amount of the compensatory damages that the insured is legally entitled to recover from the owner or driver of the uninsured motor vehicle?

b. If there is no agreement on the answer to either question in 1.a. above, then the insured shall:

(1) file a lawsuit, in a state or federal court that has jurisdiction, against:

(a) us;

(b) the owner and driver of the uninsured motor vehicle unless we have consented to a settlement offer proposed by or on behalf of such owner or driver; and

(c) any other party or parties who may be legally liable for the insured’s damages;

(2) consent to a jury trial if requested by us;

(3) agree that we may contest the issues of liability and the amount of damages; and

(4) secure a judgment in that action. The judgment must be the final result of an actual trial and any appeals, if any appeals are taken.

See State Farm Personal Car Policy (Form 9843A), at 22–23 (https://compare.opic.texas.gov/storage/fileuploads/StateFarmPCP2017.pdf) (hereinafter, “State Farm PCP”) (last visited July 27, 2019).

23

See, e.g., Weber v. Progressive Cty. Mut. Ins., No. 05-17-00163-CV, 2018 WL 564001, at *3 (Tex. App.—Dallas Jan. 26, 2018, pet. denied) (mem. op.) (affirming trial court’s dismissal with prejudice in response to UIM insurer’s special exceptions because insured alleged premature breach of contract claim, absent pleading of final judgment required by Brainard).

Stated differently, how is it possible for a trial court to obtain subject matter jurisdiction for purposes of adjudicating a UM/UIM claim if the contractual cause of action itself does not accrue until such time as the insured obtains a full and final adjudication of his claim? See id. at 443 (“A case is not ripe when its resolution depends on contingent or hypothetical facts, or upon events that have not yet come to pass.”).

Nevertheless, the most recently approved State Farm policy expressly attempts to confer subject matter jurisdiction upon Texas courts, by consent, even though, by its very terms, the claim is not subject to payment unless and until the insured obtains a judgment as “the final result of an actual trial and any appeals” should appeals be taken. See State Farm PCP, supra note 22, at 23. In no other instance has a Texas court countenanced the ad hoc determination of a material term of a contract—a meeting of the minds, if you will—by adjudication, i.e., the parties to the contract agree to be bound by a determination of judge and jury, and only then will the duty to perform arise. See T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992) (“In order to be legally binding, a contract must be sufficiently definite in its terms so that a court can understand what the promisor undertook. The material terms of the contract must be agreed upon before a court can enforce the contract. Where an essential term is open for future negotiation, there is no binding contract.” (citations omitted)).

24

The following instruction should suffice to avoid confusion on remand, if any:

State Farm issued a standard automobile liability policy to William Blevins providing insurance coverage for bodily injuries proximately caused by the negligence of an uninsured or underinsured motorist. Such policy was in effect on October 2, 2011, the date of the occurrence in question. By its terms, the policy covers damages recoverable under Texas law, both economic and noneconomic in nature. Whether such damages are recoverable in this particular case is the subject of the questions set forth below. In answering the questions, however, you are to consider only the occurrence in question. As the court instructed you at the beginning of this trial, you are not to consider or speculate about the existence or terms of any policy of insurance, including the Blevins policy, that may or may not provide coverage for the occurrence in question. Matters of coverage are for the court alone. Your answers to the questions below will simply provide the court with the factual basis for resolving the contractual dispute between the parties.

25

A “wasting policy” is one that deducts from policy limits the litigation fees and expenses incurred, ordinarily by the insurer in defending the insured against a claim. See Westchester Fire Ins. v. Admiral Ins., 152 S.W.3d 172, 192 & n.10 (Tex. App.—Fort Worth 2004, pet. denied) (en banc op. on reh’g). Because Brainard denies presentment of a UM/UIM claim absent full and final adjudication through appeal, any litigation and appellate expenses incurred by the insured reduce the policy benefits eventually recovered.

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