Uninsured/Underinsured Motorist Complaint - Texas

UNINSURED / UNDERINSURED MOTORIST COMPLAINT

Table of Contents

1. Caption
2. Parties
3. Jurisdiction and Venue
4. General Allegations
5. Policy Identification and Coverage
6. UM vs. UIM Status
7. First Cause of Action — Breach of Contract (UM/UIM Benefits)
8. Second Cause of Action — Violation of Texas Insurance Code (Bad Faith / Unfair Settlement)
9. Third Cause of Action — DTPA Violations
10. Damages
11. Prayer for Relief
12. Verification

Caption

IN THE [DISTRICT/COUNTY] COURT

[____] JUDICIAL DISTRICT

[COUNTY NAME] COUNTY, TEXAS

Parties

Discovery Control Plan

1. Plaintiff intends for discovery to be conducted under [☐ Level 2 / ☐ Level 3] of Rule 190, Texas Rules of Civil Procedure.

Parties

2. Plaintiff [PLAINTIFF FULL NAME] ("Plaintiff") is an individual who resides in [COUNTY] County, Texas, and is an insured under the automobile insurance policy described herein.

3. Defendant [INSURANCE COMPANY NAME] ("Defendant Insurer") is an insurance company authorized to transact business in the State of Texas. Defendant may be served with process through its registered agent at [REGISTERED AGENT ADDRESS].

4. [JOHN/JANE DOE] ("Uninsured/Underinsured Motorist") is an individual who, at all relevant times, operated a motor vehicle [☐ without liability insurance / ☐ with liability insurance inadequate to compensate Plaintiff's damages].

Jurisdiction and Venue

5. This Court has subject-matter jurisdiction because the amount in controversy exceeds the minimum jurisdictional requirements of this Court.

6. Venue is proper in [COUNTY] County, Texas, pursuant to Tex. Civ. Prac. & Rem. Code § 15.002 because [☐ all or a substantial part of the events giving rise to this claim occurred in this county / ☐ Defendant's principal office is in this county].

General Allegations

7. On or about [DATE OF ACCIDENT], at approximately [TIME], Plaintiff was [☐ operating / ☐ a passenger in] a motor vehicle on [STREET/HIGHWAY], in [CITY], [COUNTY] County, Texas.

8. At said time and place, the Uninsured/Underinsured Motorist negligently operated a motor vehicle and caused a collision with Plaintiff's vehicle.

9. The Uninsured/Underinsured Motorist was negligent in one or more of the following respects:

☐ Failure to maintain a safe speed
☐ Failure to yield the right of way
☐ Failure to keep a proper lookout
☐ Following too closely
☐ Driving while intoxicated
☐ Running a red light or stop sign
☐ Improper lane change
☐ Other: [________________________________]

10. Each such act or omission, individually or in combination, was a proximate cause of the collision and Plaintiff's injuries.

Policy Identification and Coverage

11. At the time of the accident, Plaintiff was insured under an automobile insurance policy issued by Defendant Insurer, Policy No. [POLICY NUMBER], effective from [POLICY START DATE] to [POLICY END DATE] (the "Policy").

12. The Policy provides uninsured/underinsured motorist bodily injury coverage with limits of $[UM/UIM LIMIT PER PERSON] per person / $[UM/UIM LIMIT PER ACCIDENT] per accident, as required by Tex. Ins. Code § 1952.101.

13. Plaintiff has paid all premiums due under the Policy and has satisfied all conditions precedent. To the extent any condition precedent has not been satisfied, Plaintiff hereby provides notice that all conditions precedent have been performed or have occurred.

14. Plaintiff did not execute a valid written rejection of UM/UIM coverage under Tex. Ins. Code § 1952.101(b).

UM vs. UIM Status

Select one:

☐ Uninsured Motorist (UM) Claim:

15. The at-fault motorist was uninsured at the time of the accident in that [☐ no bodily injury liability policy was in effect / ☐ the at-fault motorist is unknown (hit-and-run) / ☐ the at-fault motorist's insurer denied coverage or is insolvent].

☐ Underinsured Motorist (UIM) Claim:

16. The at-fault motorist maintained bodily injury liability coverage with limits of $[TORTFEASOR POLICY LIMIT], which is insufficient to compensate Plaintiff for damages sustained.

17. Plaintiff has exhausted the at-fault motorist's liability policy limits and received $[AMOUNT RECOVERED FROM TORTFEASOR] in settlement or judgment.

18. Plaintiff's damages exceed the tortfeasor's coverage, and Plaintiff is legally entitled to recover additional amounts under the UIM provisions of the Policy.

19. Pursuant to Tex. Ins. Code § 1952.106, Defendant Insurer is entitled to a credit/offset for amounts recovered from the tortfeasor's insurer.

First Cause of Action

Breach of Contract (UM/UIM Benefits)

20. Plaintiff incorporates by reference all preceding paragraphs.

21. The Policy constitutes a valid and enforceable contract between Plaintiff and Defendant Insurer.

22. Plaintiff has performed all obligations and satisfied all conditions precedent required under the Policy.

23. Defendant Insurer has breached the Policy by failing and refusing to pay UM/UIM benefits owed to Plaintiff despite proper demand. Plaintiff is entitled to a judgment or declaration establishing the fault of the Uninsured/Underinsured Motorist and the extent of Plaintiff's damages, which is a predicate to Defendant Insurer's contractual duty to pay UM/UIM benefits under Brainard v. Trinity Universal Ins. Co., 216 S.W.3d 809 (Tex. 2006).

24. As a direct and proximate result of Defendant Insurer's breach, Plaintiff has been damaged in an amount within the jurisdictional limits of this Court.

Second Cause of Action

Violation of Texas Insurance Code (Bad Faith / Unfair Settlement Practices)

25. Plaintiff incorporates by reference all preceding paragraphs.

25A. Not later than the 61st day before filing this action, Plaintiff provided Defendant Insurer with written notice, in compliance with Tex. Ins. Code § 541.154, of the specific complaint and the amount of actual damages and expenses, including attorney's fees, reasonably incurred in asserting the claim. [☐ Notice was provided on [DATE] / ☐ Notice was not practicable because [☐ this action was filed to prevent limitations from expiring under § 541.154(c)(1) / ☐ this claim is asserted as a counterclaim under § 541.154(c)(2)].]

26. Defendant Insurer has violated the Texas Insurance Code, including but not limited to Chapter 541 (Unfair Methods of Competition and Unfair or Deceptive Acts or Practices), by:

☐ Failing to attempt in good faith to effectuate a prompt, fair, and equitable settlement when liability was reasonably clear (§ 541.060(a)(2))
☐ Failing to promptly provide a reasonable explanation of the basis for denial or offer of compromise settlement (§ 541.060(a)(3))
☐ Refusing to pay a claim without conducting a reasonable investigation (§ 541.060(a)(7))
☐ Other: [________________________________]

27. Defendant Insurer's violations were a producing cause of Plaintiff's damages, including economic losses and mental anguish. Texas also recognizes an independent common-law cause of action for breach of the duty of good faith and fair dealing where an insurer had no reasonable basis to deny or delay payment of the claim and knew or should have known there was no reasonable basis for the denial or delay. Arnold v. National County Mut. Fire Ins. Co., 725 S.W.2d 165 (Tex. 1987). [☐ Plaintiff also brings this common-law bad-faith claim in the alternative.]

Third Cause of Action

DTPA Violations (Tex. Bus. & Com. Code Ch. 17)

28. Plaintiff incorporates by reference all preceding paragraphs.

29. Plaintiff is a "consumer" within the meaning of the Deceptive Trade Practices Act, Tex. Bus. & Com. Code § 17.45(4).

30. Defendant Insurer's conduct constitutes unconscionable actions and/or violations of § 17.46(b) that were a producing cause of Plaintiff's damages.

31. Defendant Insurer's conduct was committed knowingly, entitling Plaintiff to treble damages under Tex. Bus. & Com. Code § 17.50(b)(1).

Damages

32. As a result of the accident and Defendant Insurer's breaches, Plaintiff has suffered the following damages:

☐ Past medical expenses: $[AMOUNT]
☐ Future medical expenses: $[AMOUNT]
☐ Past lost wages/earnings: $[AMOUNT]
☐ Future lost wages/earning capacity: $[AMOUNT]
☐ Past physical pain and mental anguish: $[AMOUNT]
☐ Future physical pain and mental anguish: $[AMOUNT]
☐ Past physical impairment: $[AMOUNT]
☐ Future physical impairment: $[AMOUNT]
☐ Disfigurement: $[AMOUNT]
☐ Loss of consortium (if applicable): $[AMOUNT]
☐ Additional damages under Ins. Code Ch. 541: Treble damages, attorney's fees
☐ DTPA damages: Treble damages if knowing conduct
☐ Prejudgment and postjudgment interest
☐ Court costs and attorney's fees

Prayer for Relief

WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully requests that this Court enter judgment against Defendant Insurer as follows:

1. Compensatory damages in an amount within the jurisdictional limits of this Court;
2. UM/UIM contract benefits in the full amount owed under the Policy;
3. Statutory damages, including treble damages under the Insurance Code and/or DTPA;
4. Prejudgment and postjudgment interest at the legal rate;
5. Reasonable and necessary attorney's fees;
6. Court costs; and
7. Such other and further relief to which Plaintiff may be justly entitled.

Verification

STATE OF TEXAS
COUNTY OF [COUNTY NAME]

BEFORE ME, the undersigned notary public, on this [____] day of [__________], [____], personally appeared [PLAINTIFF FULL NAME], known to me to be the person whose name is subscribed below, and who, being duly sworn, stated under oath that the facts set forth in the foregoing Original Petition are within the personal knowledge of the affiant and are true and correct.

Signature: [________________________________]
Printed Name: [PLAINTIFF FULL NAME]

SUBSCRIBED AND SWORN TO BEFORE ME on [__/__/____].

Notary Public, State of Texas: [________________________________]
My Commission Expires: [__/__/____]

Respectfully submitted,

[ATTORNEY NAME], State Bar No. [BAR NUMBER]
[FIRM NAME]
[FIRM ADDRESS]
[CITY], Texas [ZIP CODE]
Telephone: [________________________________]
Facsimile: [________________________________]
Email: [________________________________]
Attorney for Plaintiff

State-Specific Notes — Texas

Sources and References

• Tex. Ins. Code Ch. 1952 — Texas Legislature
• Tex. Ins. Code § 1952.101 — FindLaw
• Tex. Ins. Code § 541.060 — FindLaw
• Tex. Ins. Code § 541.154 (Prior Notice of Action) — FindLaw
• Tex. Transp. Code § 601.072 (Minimum Coverage Amounts) — FindLaw
• Tex. Bus. & Com. Code § 17.505 (DTPA Notice; Inspection) — FindLaw
• Tex. Civ. Prac. & Rem. Code § 16.051 (Residual Limitations Period) — Texas Legislature
• Brainard v. Trinity Universal Ins. Co., 216 S.W.3d 809 (Tex. 2006)
• Allstate Ins. Co. v. Irwin, 627 S.W.3d 263 (Tex. 2021)
• Nationwide Ins. Co. v. Elchehimi, 251 S.W.3d 667 (Tex. 2008) (actual-physical-contact requirement for unidentified-motorist coverage)
• USAA Tex. Lloyds Co. v. Menchaca, 545 S.W.3d 479 (Tex. 2018)
• Arnold v. National County Mut. Fire Ins. Co., 725 S.W.2d 165 (Tex. 1987)
• UM/UIM Offsets in Texas — Ryan Orsatti Law