In re Trinity Universal Insurance Co.

By this original proceeding, relator Trinity Universal Insurance Company (Trinity) seeks a writ of mandamus to compel respondent, the Honorable Steven R. Emmert, presiding judge of the 31st District Court of Gray County, to vacate his order signed September 14, 2001, and enter an order granting Trinity’s motion for severance and abatement in its entirety in cause number 31,677 styled Lilith Brainard, et al. v. Premier Well Service, Inc., et al. (Premier). *fn1 For the reasons expressly below, we conditionally grant the petition for writ of mandamus.

Trinity issued its insurance policy to Brainard Cattle Company, E.S.F. Brainard, et al. for a policy period commencing August 26, 1998 through August 26, 1999. Among other provisions, the policy included an uninsured/underinsured (UIM) motorists insurance endorsement. Edward H. Brainard, II, an insured under the policy, sustained fatal injuries in a head on collision with a motorized work over rig owned and operated by an employee of Premier. After the Brainards filed their original petition in the underlying action against Premier and its employee seeking to recover damages occasioned by the accident and discovered that the limits of liability insurance for Premier did not exceed one million dollars, the Brainards made a written claim on April 18, 2000 for UIM benefits and Trinity acknowledged receipt of the claim and requested supporting information.

By their second amended petition filed October 30, 2000, the Brainards joined Trinity as a defendant and asserted several claims pursuant to the contract, including claims under the UIM endorsement and good faith/unfair settlement practices and article 21.55 of the Texas Insurance Code entitled Prompt Payment of Claims. Tex. Ins. Code Ann. art. 21.55 (Vernon Pamph Supp. 2001). Following the Brainards’ settlement with and dismissal of their claims against Premier and the operator of its equipment, *fn2 by order signed June 11, 2001, among other things, the trial court denied Trinity’s first motion for severance. Then, on June 29, 2001, Trinity filed it’s second motion for severance and abatement, which the trial court partially granted. The trial court severed the Brainards’ good faith/unfair settlement practices and article 21.21 claims, but denied severance of the article 21.55 claim. Because the Brainards do not challenge the severance of their good faith/unfair settlement practices and article 21.21 claims, the question presented for our decision is whether the trial court abused its discretion in failing to grant the motion for severance of the Brainards’ claims under article 21.55 as applicable to their UIM claims.