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Click here for the full text of this decision FACTS: Edward H. Brainard II was killed in a car accident, caused by a driver for a company called Premier, in 1999. At the time, Brainard and several family members were covered by an automobile liability policy issued to the Brainard Cattle Co. by Trinity Universal Insurance Co. The Brainard family filed a wrongful death suit against Premier and its employee. During the course of litigation, the family learned Premier’s insurance policy had a $1 million payout limit. Finding that amount to be inadequate to compensate for Brainard’s death, the family notified Trinity that it would be making a claim under the uninsured/underinsured motorist provision of its policy. The provision stated: “We will pay damages which an insured is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by an Insured, or property damage caused by an accident. . . . Any judgment for damages arising out of a suit brought without our written consent is not binding on us.” When Trinity asked for supporting information, the family added Trinity as a defendant and alleged claims under the Insurance Code, the breach of the common-law duty of good faith/unfair settlement practices and the Deceptive Trade Practices-Consumer Protection Act. The Brainards alleged that Trinity was obliged to pay under the UIM provision “when its investigation reveals that there is no questions as to liability” even if there had not yet been a judgment fixing damages. Without admitting liability, Premier paid the family $1 million in a settlement. The claims against Premier were dismissed by the district court with prejudice. The trial court eventually granted Trinity’s motion to sever the extra-contractual claims. The wrongful death charge was submitted to a jury, who awarded Brainard’s wife $500,000, each of the five children $100,000, and $10,000 in funeral expenses. The jury also awarded the family $100,000 in attorneys’ fees. The trial court offset the $1.11 million total award by prior amounts paid by Premier and Trinity’s personal injury protection coverage, leaving the Brainards with a $5,000 award to recover against Trinity. On appeal, Trinity questions whether attorneys’ fees were appropriately awarded. The Brainards, on cross-appeal, argue that they were entitled to prejudgment interest in the amounts awarded the family. HOLDING: Affirmed in part; reversed and rendered in part. The court agrees with Trinity that attorneys’ fees awarded in conjunction with the UIM claim were improper where there had been no determination of the operator’s liability prior to judgment. The court finds that the promise to pay is made subject to a condition precedent. No breach of contract occurs until the condition occurs. The court notes a split in the Texas appellate courts over whether attorneys’ fees may be awarded without a determination of fault of the underinsured motorist and the amount of damages. Without discussing the pros and cons of each approach, the court says it sides with those courts that do not allow the award of attorneys’ fees without a prior determination of fault. The court rejects the Brainards’ cross-appeal for prejudgment interest. The court points out that the jury was instructed to find the actual damages, without including interest. Further, the Trinity PIP provision said it would pay for bodily injury or property damage, but not interest on the damages or the amount of a judgment obtained against the underinsured operator, less the offset. Finally, the court highlights that the family’s claims are sounded in contract, not tort. “The action of the trial court in applying the credit of prior settlement and PIP payment to the amounts of actual damages found by the jury without awarding any interest was consistent with the construction of Texas Insurance Code Article 5.06-1(c) by the Texas Supreme Court as well as the express limitation of the insurer’s liability contained in the contract.” OPINION: Reavis, J.; Quinn, Reavis and Campbell, JJ.

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