NO. 07-05-0014-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

FEBRUARY 7, 2007

______________________________

MID-CENTURY INS. CO. OF TEXAS, APPELLANT

V.

CAROLE DANIEL AND STAN DANIEL, APPELLEES

_________________________________

FROM THE 72 ND DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2001-513,596; HONORABLE BLAIR CHERRY, JUDGE

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Before CAMPBELL, J. and REAVIS, and BOYD, S.JJ. ^{(footnote: 1)}

CONCURRING OPINION

Although the Insurance Code violation claims asserted by the plaintiffs in Brainard were severed and therefore not directly addressed in the supreme court’s opinion in that case , I agree that the unique character of UIM coverage, Brainard , 2006 WL 3751572 at *9, affects the manner in which UIM claims should be treated under former article 21.55 of the Insurance Code.   See Menix v. Allstate Indem. Co. , 83 S.W.3d 877, 883 n. 2 (Tex.App.–Eastland 2002, pet. denied).  It is undisputed Mid-Century paid the Daniels’ UIM claim promptly after its liability was determined.  The Daniels’ motion for summary judgment asserted Mid-Century violated article 21.55 in the following ways:

1. Failed to notify [the Daniels] in writing of the acceptance or rejection of the claim not later than the 15 th business day after receiving all items, statements, and forms required by the insurer on May 3, 2001 . . ., a violation of § 3(a).

1. Failed to state the reasons for any rejection . . ., a violation of § 3(c).

1. Failed to notify [the Daniels] that it needed more time and reasons therefore 15 business days after receipt of all requested information on May 3, 2001 . . ., a violation of § 3(d).  

1. Failed to accept or reject the claim not later than 45 days after any notice that requested additional time.  Mid-Century never requested additional time . . ., a violation of § 3(e) . . . .

The record shows the Daniels brought suit against the tortfeasor Melvin Bray and Mid-Century in April 2001.  Because, under the circumstances presented here, the asserted violations of section 3 occurred before the determination that Mid-Century had UIM coverage liability, I conclude the asserted violations could not entitle the Daniels to the interest penalty and attorney’s fees under section 6 of article 21.55.   Brainard , 2006 WL 3751572; Allstate Ins. Co. v. Bonner , 51 S.W.3d 289 (Tex. 2001); Menix , 83 S.W.3d 877.  On that basis, I concur in the court’s judgment.    

James T. Campbell

         Justice

FOOTNOTES

1:

John T. Boyd, Chief Justice (Ret.), and Don H. Reavis, Justice (Ret.) Seventh Court of Appeals, both sitting by assignment.