The controversy is ripe, because the insurer is called upon to defend, and because the existence of coverage may impact the outcome of the suit. App.Corpus Christi 2002, pet. effectuate its general purpose to make uniform the law of those states that enact it and to harmonize, as far as possible, with federal laws and regulations on the subject of declaratory judgments and decrees. Sec. In determining amount in controversy, the court may consider policy limits and defense costs, and is not necessarily limited by the damages pleaded in the underlying suit. Ins. The insured was located in Hidalgo County, the car was purchased in Hidalgo County, and the salesman contacted the agent by phone, from Hidalgo County, to add the car to the policy. 189 0 obj <>stream Declaratory judgment actions have been a recognized civil vehicle for more than one hundred years. App.Fort Worth 2000, no pet.). Sherry attributes successfully developing the most powerful tools and a five-stage formula to assist attorneys and pro se parents get better results and fight legal abuses that occur in the family court settings. 1998). App.Dallas 2000, pet. Issues also arise, when the underlying case is still proceeding, as to the extent to which the insurer can discover information which could also be relevant, and potentially damaging, in the underlying liability suit. R. CIV. 1993); American States Ins. CODE provides, in subpart (a), that: When declaratory relief is sought, all persons who have or claim any interest that would be affected by the declaration must be made parties. Co. v. Block, 744 S.W.2d 940, 943 (Tex. A person interested as or through an executor or administrator, including an independent executor or administrator, a trustee, guardian, other fiduciary, creditor, devisee, legatee, heir, next of kin, or cestui que trust in the administration of a trust or of the estate of a decedent, an infant, mentally incapacitated person, or insolvent may have a declaration of rights or legal relations in respect to the trust or estate: (1) to ascertain any class of creditors, devisees, legatees, heirs, next of kin, or others; (2) to direct the executors, administrators, or trustees to do or abstain from doing any particular act in their fiduciary capacity; (3) to determine any question arising in the administration of the trust or estate, including questions of construction of wills and other writings; or. Contact Us if you have questions.). VERHOEV V.PROGRESSIVE COUNTY MUTUAL INS.CO., 300 S.W.3D 803 (TEX.APP.. - FT.WORTH 2009) Personal auto policy Glenn and Kim Verhoev both named insureds $250,000 limits (UM/UIM) Divorced prior to issuance of policy and accident Kim injured severely in a single vehicle roll over as a passenger in a vehicle driven and owned by Glenn Kim pursued both a liability claim against Glenn Sept. 1, 1999. River Entertainment was joined because it owned Pepes where the defendant imbibed. 1996). Co., 975 S.W.2d 329 (Tex. %%EOF Insrs v. American Home Assur. App.Austin 1998, no pet. The El Paso Court of Appeals recently considered Eggemeyer v. Hughes, a case involving a disputed boundary line. The court then noted the special concerns applicable in declaratory actions. [ii]Civil Practice and Remedies Code Declaratory Judgments Sec 37.002 and Sec 37.003 (c) (c) The enumerations in Sections 37.004 and 37.005 do not limit or restrict the exercise of the general powers conferred in this section in any proceeding in which declaratory relief is sought and a judgment or decree will terminate the controversy or remove an uncertainty. App.Texarkana 1994, no writ) (possibility that liability triggering indemnity would be incurred was a feature hypothetical event, and court had no power to pass upon hypothetical or contingent situation); Fort Worth Lloyds v. Garza, 527 S.W.2d 195 (Tex. A federal anti-injunction also exists. App.Houston [1st Dist.] 3. As such, there should be no collateral estoppel of the insurer, based upon the outcome of the issue in the underlying case. See Natl Union Fire Ins. Sec. App.Dallas 2001, pet. 1 Justice Smith was perhaps prescient in his dissent, concluding that a justiciable controversy existed. Texas Dept of Public Safety v. Moore, 985 S.W.2d 149, 153-54 (Tex. TO PREVENT COSTLY LITIGATION, LOSS, DEBT, DAMAGE, AND PENALTIES: It should be the primary purpose of the State to save its citizens from injury, debt, damage and penalties; and to this end the highest function of the court ought to be to decide, when possible, the controversies of parties before any loss has been suffered or any offense committed. ~Uniform Declaratory Judgments Act Reasons for Adoption 1922. Instead, a party may recover fees only where controlling substantive law permits recovery. Civ. endobj Further, while it is unlikely that an insurer wishes to proceed, without protective order, to establish evidence that demonstrates the insureds liability as the insurer has not yet prevailed on its coverage defenses it is also unclear under what standard the insured should be able to protect otherwise discoverable information, simply because it is damaging. Co. v. Boll, 392 S.W.2d 158, 161 (Tex. The Act provides you with a mechanism to get a ruling from the court before you are dragged through costly litigation. 1969); Getty Oil v. Ins. Texas follows the American Rule DECLARATIONS RELATING TO TRUST OR ESTATE. App.Fort Worth 1992, writ denied) (insurer not estopped by failing to have declaratory judgment determined before judgment in underlying case). C.M.W., 53 S.W.3d 877 (Tex. recoverable by the prevailing party under the Texas Declaratory Judgment Act, the federal act does not provide for fees to be awarded. (a) In a case of actual controversy within its jurisdiction, except with respect to Federal taxes . Courts recognize that when there are conflicting positions on coverage, as when the insurer reserves rights, there is no privity between the insured and the insurer on issues relating to coverage, which are also at issue in the underlying case. Co. v. Burch, 442 S.W.2d 331 (Tex. When an issue has been litigated in the underlying case, when can it be re-litigated in the coverage dispute? App.Austin 1999, no pet.) c) The court may grant summary judgment as to liability only and leave damages for the jury, as appropriate. Group v. Lou-Con, Inc., 293 F.3d 908 (5th Cir. Texas is not a direct action state, and a claimant typically has no claim against an insurer until a judgment is obtained. Litigation in Texas. (a) A person interested under a deed, will, written contract, or other writings constituting a contract or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder. See Granite State Ins. Co., 975 S.W.2d 329, 332 n.1 (Tex. App.Corpus Christi 1982, no writ) (could not consider facts of ownership that conflicted with petition); Calderon v. Mid-Century Indem. (a)For Claimant. This article is designed to acquaint investors with basic rules and procedures involved in Texas litigation. 1992), cert. *I`Sl,'dpC2\,AMia*K/[ -M @ICPgIw5 Y k]x?4 :D R*NuNK^CXdmS0I,-B App.Houston [1st Dist.] COPYRIGHT: All of the materials are copyrighted. 959, Sec. oEN>-BZ=/c]-ZP4U3o>0!f$F = FQfB@DlClYthnA mML.;Emu =uT Group, 946 F.Supp. Even before the Texas Supreme Courts opinion in Griffin, federal courts recognized that indemnity presented an actual controversy and was justiciable, prior to judgment in the underlying liability suit. Civ. 1997); Heyden Newport Chemical Corp. v. So. App.Houston [14th Dist.] <>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 612 792] /Contents 12 0 R/Group<>/Tabs/S/StructParents 1>> Civ. Sec. 1965, writ refd n.r.e.) Instead, plaintiffs alleged River Entertainment was negligent for allowing the defendant to leave, in his own vehicle, when they should have known his driving ability was impaired. A number of issues arise in regard to discovery in a declaratory judgment action. SHORT TITLE, CONSTRUCTION, INTERPRETATION. A trial court has discretion to enter declaratory judgment if it will serve a useful purpose or will terminate the controversy between the parties. Id. )1^Hl]TgxY8Ubs,! 9@Dyp*l8sA!N\X The existence of another adequate remedy does not preclude a declaratory judgment that is otherwise appropriate. Default judgment presumes that the plaintiff spouse properly served the lawsuit on the defendant-and that the defendant then failed to respond in a timely manner, either by choice or due to neglect. See Bernard v. Gulf Ins. Civ. App.Houston [1st Dist.] Twenty-Fifth Floor - Plaza of the Americas. When Is a Declaratory Judgment Proper? 37.0055. 1. Marriages between two people of the same sex are valid in Texas. denied). The following are some specific ways that declaratory judgments can be used in family law. Texas Pattern Jury Charges, published by the State Bar of Texas, is a compilation of definitions, jury instructions, and supplemental material, intended to assist practitioners with developing jury charges. 2201(a) . "CI@ { cvO(|t4X & 1, eff. denied) (disallowing evidence of workers compensation payments to establish employment). E.g., Chenault v. Phillips, 914 S.W.2d 140, 141 (Tex. (although judgment reversed on coverage, no indication courts refusal to award fees to either party was abuse of discretion). Acts 2007, 80th Leg., R.S., Ch. Code 6.305 (a) (1)- (2). Declaratory relief is an especially appropriate method for resolving coverage disputes, because of the limited options available for resolution of such disputes. The U.S. Supreme Court's 2015 ruling in Obergefell v. To establish federal jurisdiction in a declaratory judgment action, two conditions must be satisfied. SUBJECT MATTER OF RELIEF. A binding adjudication of the rights and status of litigants even though no consequential relief is awarded. Recent cases discussing the enforceability of policy buy-backs suggest there may be other exceptions in which a statutory insurance requirement renders a claimant an intended beneficiary. Sec. 1992); cf. See Firemens Ins. Co v. Ins. 1995). Over the past few decades, Texas family lawyers have engaged in a legal fiction: Let's tie a bow around the package of a partition and exchange agreement by seeking to have the agreement made the subject of a declaratory judgment action. Co. v. River Entertainment, 998 F.2d 311, 315 (5th Cir. Civ. Where Can I Get More Information and Training? See State Farm Mut. 11 0 obj Ins. If your state does not have a declaratory judgment statute that provides you the ability to be heard on your constitutional rights consider filing in federal court for this relief. In Wade, the insurer argued that it was not challenging the veracity of the facts alleged, but had a defense independent of the pleadings. : `g`R@, w@T!A4Au~?8\m`g`v4oy@+./`N`p4#fb` w{X0=@ d$ For our purposes, "litigation" refers to the filing and prosecuting of a real estate-related lawsuit, or defense against one, in the Texas county civil courts at law or the civil district courts. & Ind. (a) A court of record within its jurisdiction has power to declare rights, status, and other legal relations whether or not further relief is or could be claimed.