See, e.g., Texas Assn of Bus. Burch involved a declaration that the insurer owed defense, and also owed indemnity for the insureds liability for his wifes torts. 1996) (insurer not estopped from litigating employment issue). K-yXHMKS mmgOT}|aMz0. at 452-53; but see Tri-Coastal Contrs Inc., 981 S.W.2d at 863 (questioning scope of exception). dYU1oprU.:1FlU;{~_%uIMT6cHE 7o1E-j=E.s nR&%*%")QmLd~s`MF_]jd%DhjP1h 4 z#G?o 0Xj[f e /R&K(KX K$ TBu /5v+nA%. It has long been recognized that Texas law does not allow recovery of attorneys fees unless authorized by statute or contract. 955 S.W.2d at 84 (construing Tex. Sec. Fam. App.Texarkana 2003, pet. A fee award is not mandatoryunder the UDJA . App.Austin 1987, no writ); Safeway Mng. Co., 975 S.W.2d 329, 332 n.1 (Tex. Co. v. Gandy, 925 S.W.2d 696 (Tex. Now you can hire experts to teach your court that you are asserting the protections of your parental rights[vii]. 1 0 obj Ins. App.Beaumont 1999, pet. Tex. 1991), affd in part, 961 F.2d 213 (5th Cir. (B) A contract may be construed either before or after there has been a breach. Insrs v. American Home Assur. 4 0 obj At issue was a declaratory judgment action over whether medical expenses were owed to an insured worker, under The Workers Compensation Act, where the expenses were incurred after settlement of the employees negligence suit against a third party. (because claimant could not bring suit, she had no right to intervene); see, e.g., Graciela v. Tagle, 946 S.W.2d 504 (Tex. Co., 418 S.W.2d 712, 715-16 (Tex. 305 (H.B. Utica Lloyds of Tex. On the other hand, where the insured seeks a declaration that the insurer owes indemnity, before resolution of the underlying case, the opinion may be considered advisory, and declaratory relief may, indeed, be premature. Bonham State Bank v. Beadle, 907 S.W.2d 465 (Tex. 1271 (N.D. Tex. App. The court may order a speedy hearing of a declaratory judgment action. App.Dallas 2001, pet. Co. v. Gaskins, 572 S.W.2d 573, 575 (Tex. at 1280 (insurer not precluded from relitigating course and scope of employment). However, each party must still plead for relief and carry its own burden of proof. Civ. 830-252-5100. App.Dallas 1998, no pet.). (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. See Great American Ins. The woman appealed, arguing the evidence was factually insufficient to support the finding there was no mutual intent to be married. 214-871-8200, One Riverway <>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 612 792] /Contents 12 0 R/Group<>/Tabs/S/StructParents 1>> A separate issue exists, however, as to the facts and testimony relating to the liability event, and the evidence that has been accumulated or produced in the underlying case. 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. Unfortunately, while 38.001, et seq., may allow recovery of attorneys fees by the insured, in a proper case, it provides no basis for recovery of fees by an insurer. See Natl Union Fire Ins. A Texas Rule 11 family settlement agreement can be a wonderful tool to resolve a Texas probate dispute. In state court, an order to seal discovery requires that the parties jump through a number of additional hoops, but protective orders are still available. & Rem. The above information is taken from the Palmers training on their sample motions, parental rights motions. Background This case involves a dispute over a . The U.S. Supreme Court's 2015 ruling in Obergefell v. This article is designed to acquaint investors with basic rules and procedures involved in Texas litigation. (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. (not justiciable controversy); Foust v. Ranger Ins. Sec. 2201, and further provides for a jury trial. App.Beaumont 1972), affd other grounds, 496 S.W.2d 552 (Tex. Co. of N. 1999) (insureds motion to transfer erroneously granted); Southern County Mut. While federal abstention doctrine is equally applicable to declaratory judgments action, courts are particularly vigilant in exercising their discretion to protect comity and prevent forum shopping. App.Waco 1943, no writ); Superior Ins. Group, 946 F.Supp. (You hire experts to help you teach your court that there is parental alienation in your case. <> % Co. v. Quinn-L Capital Corp., 3 F.3d 877 (5th Cir. V 8). endstream Can I Still File if I am already in Costly Litigation? Auto Ins. P. 76A; 192.6(b)(5). 37.008 provides that the court may refuse to render a declaratory judgment if the judgment would not terminate the uncertainty or controversy giving rise to the proceeding. 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. (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. Westport v. Atchley, Russell, Waldrop & Hlavinka, 267 F. Supp. Co. v. Tilley, 484 S.W.2d 802, 806 (Tex. 45 (N.D. Tex. The courts appear to be split, with federal courts being somewhat more lenient in allowing the use of extrinsic evidence in this circumstance. ); State Farm Lloyds Ins. This information is not a substitute for an attorney. denied) (any judgment on indemnity was advisory and beyond power and jurisdiction of the court); Campbell v. Commercial Standard Ins. Sept. 1, 1985. Co. v. Block, 744 S.W.2d 940, 943 (Tex. The Texas Legislature adopted the Uniform Act, with some slight variations, in 1943V. See, e.g., State Farm Fire & Cas. Typically, an anti-suit injunction is appropriate in limited instances: 1) to address a threat to the courts jurisdiction; 2) to prevent the evasion of important public policy; 3) to prevent a multiplicity of suits; or 4) to protect a party from vexatious or harassing litigation. Prac. App.Houston [14th Dist.] 37.011. Co. v. Fraiman, 514 S.W.2d 343, 346 (Tex. See State Farm Mut. There are literally dozens of statutes in Texas law that provide for the recovery of attorney's fees, usually as part of a judgment. We are not responsible for you using any of this information. COURT REFUSAL TO RENDER. Co. v. Patriot Sec., Inc., 926 F.Supp. Under this rule, the insurers defense obligations are determined by the allegations of the pleadings and the language of the insurance policy, without regard to the actual facts. It is axiomatic that the duty to defend is broader than the duty to indemnify. endobj c) The court may grant summary judgment as to liability only and leave damages for the jury, as appropriate. 1995). Because there was no judgment in the liability suit, the court concluded that any declaration regarding indemnity would be purely hypothetical.1 In 1997, the Supreme Court concluded that the law had changed, however, and determined that a declaration of indemnity was available, when the same facts that defeated a duty to defend also defeated a duty to indemnify. Similarly, courts have held that an insurance company has no right to intervene in the liability action against the insured to seek a coverage determination. Board Certified, Consumer and 959, Sec. While for years there was a question in the Federal courts as to whether 38.001, Tex. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the adverse party has appeared or answered, move with or without supporting affidavits for a summary judgment in his favor upon all . For more information, please contact the law firm at 817-335-8800. Co. v. Hood, 895 F.Supp. ); Rice v. Alamo Rent-A-Car, Inc., 987 S.W.2d 231 (Tex. Civ. Texas is not a direct action state, and a claimant typically has no claim against an insurer until a judgment is obtained. Wade, 827 S.W.2d at 451. 2201, and further provides for a jury trial. 6 0 obj LEXIS 1736 (Tex. Const. App.Fort Worth 1986, writ refd n.r.e.). Code 6.305 (a) (1)- (2). 1995). As such, there should be no collateral estoppel of the insurer, based upon the outcome of the issue in the underlying case. 3. PRAC. Co. v. Patriot Sec., Inc., 926 F.Supp. 2002); Monticello Ins. Ins. (prior judgment not res judicata as to amended pleading that alleged new facts, not involving completed operations); St. Paul Ins. Co., 542 S.W.2d 429 (Tex. 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. 905 (a) (5), appeals are from judgments, not orders a common . 37 Declaratory Judgments Texas Family Law Manual KFT 1294.T4S7 Ch. and that a prior judgment is void. St. Paul had also appealed the original award to state district court, and that suit had also been settled, with a provision for payment of future expenses. Co. v. Truckin USA, 122 F.3d 270, 272-73 (5th Cir. denied). [vii] Texas Code of Judicial Conduct Texas Code of Judicial Conduct Canon B 3 (c) (c) obtaining the advice of a disinterested expert on the law applicable to a proceeding before the judge if the judge gives notice to the parties of the person consulted and the substance of the advice, and affords the parties reasonable opportunity to respond; All of our books are available in electronic form in the membership site. 1995), the court held a minor, whose interests were affected, was properly made a party to a declaratory judgment action, and was bound by the judgment where the minors mother answered, as next friend, and a guardian ad litem was appointed. 45 . The author would like to thank the Texas Tech Law School Foundation for its generous support. B. Respondent misstates the current law in Texas. (c) Notwithstanding Section 22.001, Property Code, a person described by Subsection (a) may obtain a determination under this chapter when the sole issue concerning title to real property is the determination of the proper boundary line between adjoining properties. Determination of title is only dispute to be raised by declaratory judgment. 959, Sec. "Undoubtedly, the degree of control the agreement ultimately exerts over the parties' rights in the . 1998); Monticello Ins. A declaration does not prejudice the rights of a person not a party to the proceeding. See State Farm Fire & Cas. JURY TRIAL. 1998, no pet.). Acts 1985, 69th Leg., ch. Sept. 1, 1999. A justiciable controversy may nonetheless exist where no other cause of action is available or has ripened. App.Corpus Christi 2003, no writ). h.). These rules govern the procedure for obtaining a declaratory judgment under 18 U.S.C. 61 Miscellaneous Litigation , Form 61-15: Petition for Declaratory Judgment; Practice Notes 61.10 Declaratory Judgment Dorsaneo's Texas Litigation Guide KFT 1730.T4 Vol. App.Amarillo 1976, writ refd n.r.e. of Trans., 999 S.W.2d 881, 883 (Tex. 1998); see also Abraxas Petroleum Corp. v. Hornburg, 20 S.W.3d 741 (Tex. endobj 2201-2202 . Co. v. Louisiana Farm Bureau Federation, 996 F.2d 774, 778 (5th Cir. & Rem. Where extrinsic evidence is offered, however, the scope of discovery should be broader. The court recognized that the insurer was defending, but the coverage issue would not be litigated in the underlying case, so declaratory relief was appropriate. The most common exception for extrinsic evidence is when the pleadings simply do not assert facts that would determine coverage. We are posting this information just for educational purposes and not as a practice of law. Co., 981 S.W.2d 861 (Tex. See, e.g., Ohio Cas. denied) (refusing to allow use of extrinsic evidence to disprove alleged facts). App.Houston [1st Dist.] See, e.g., Standard Fire Ins. Co. v. Murray, 437 S.W.2d 264, 265-66 (Tex. 9 0 obj any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Co. v. Cooper Mach. 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. at 368-69. Under Texas law, a duty to defend is determined by the complaint allegation rule. 2 0 obj 1997) (whether vehicle was owned by insured); Harken Exploration Co. v. Sphere Drake Ins., PLC, 261 F.3d 466 (5th Cir. FindLaw Codes may not reflect the most recent version of the law in your jurisdiction. denied); cf. See Bituminous Cas. The Declaratory Judgment Act states "Courts of record, within their respective jurisdictions, shall have power to declare rights, status, and other legal relations." See 42 Pa. C.S.A. Dept. "A declaratory judgment is appropriate only when there is a justiciable controversy about the rights and status of the parties, and the declaration would resolve the controversy." (Kinnard v. Collin Co Bail Bond (2006) No. Group, Inc., 946 F.Supp. 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. The complaint allegation rule can pose a problem with declaratory relief. LEXIS 7088 (Tex. declaratory judgment action or dismiss the case. Berger v. Berger, 358 Ill.App.3d 651 (1st Dist. (no right to new trial because of amended petition where suit brought and determined based on prior petition). Ellison sought a declaratory judgment to that effect and also brought claims for trespass to try title, trespass to real property, conversion, unlawful drainage, gross negligence, and nonpayment of oil and gas proceeds. See Brillhart v. Excess Ins. Twenty-Fifth Floor - Plaza of the Americas When Is a Declaratory Judgment Proper? denied). In Bradleys Electric, the court rejected an argument from the insured that the county where the insurance contract was negotiated and executed was the only proper venue, but recognized it was also proper. Co. v. River Entertainment, 998 F.2d 311, 315 (5th Cir. 1996). 3.08(a), eff. 2d 601, 621-22 (E.D. (whether policy was void or loss was covered presented justiciable controversy); American States Ins. However, because family settlement agreements are treated as contracts under Texas law, it is important that all of the parties . App. We are not attorneys. The collision was also in Hidalgo County, as was the liability suit. Under federal law, the Declaratory Judgment Act, itself, does not authorize attorneys fees. One reason proffered is the possibility of inconsistent outcomes. 37.002 provides that the chapter is remedial: Its purpose is to settle and to afford relief from uncertainty and in security with respect to rights, status, and other legal relations; and it is to be legally construed and administered. The Act does not create or enlarge jurisdiction. Nevertheless, some courts have concluded that declaratory relief is inappropriate where another cause of action is fully mature and provides an appropriate remedy at law. Co., 95 S.W.3d 702 (Tex. . 925 S.W.2d at 714. 12 0 obj (b) This chapter is remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations; and it is to be liberally construed and administered. 167, Sec. (auto liability insurer seeking declaratory relief was not subject to cross-action by injured party, or consolidation of liability and coverage suit); see also Firemans Ins. Eskew, 731 S.W.2d 124, 132 (Tex.App.-Austin 1987, writ ref'd n.r.e.) E.g., Chenault v. Phillips, 914 S.W.2d 140, 141 (Tex. App.Fort Worth 1978, no writ); Providence Lloyds Ins. Declaratory Judgments Act) Texas CPRC Plus REF KFT 1728.A196 A2 CPRC Ch. 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. The court, however, concluded this was not a county in which a substantial part of the facts giving rise to the coverage dispute arose. The Federal act is broader in scope. 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. Id . See, e.g., Stroop v. N. County Mut. to prevent: 1. litigation, 2. loss, 3. debt, 4. damage (injury), and 5. penalties! 37.008. 10, eff. For years, Texas courts concluded that a declaration of indemnity was premature, until the underlying suit was resolved. Genl Ins. <> CIV. Corp., 817 F.Supp. Where Can I Get More Information and Training? App.Houston [1st Dist.] 1998, pet. 1993), cert. dismd, 507 U.S. 1026 (1993); cf. Through the years, many family lawyers have recommended taking additional steps to assure the sanctity of a partition agreement, including initiating a declaratory judgment action to seek a. Co. v. Wade, 827 S.W.2d 448 (Tex. E.g., Wilton v. Seven Falls Co., 515 U.S. 277 (1995); American States Ins. While abstention doctrine is more frequently an issue in federal court, state courts can also abstain. (a) When declaratory relief is sought, all persons who have or claim any interest that would be affected by the declaration must be made parties. 97, 99 (E.D. You can share these posts as long as you are linking to our posts. Saint Paul, MN 55102 Despite the insurers right to review any such documents without waiver of the privilege, and the likelihood that defense counsels concerns would be abrogated by the right to conduct discovery, there is still a question as to what extent defense counsels opinions or observations would be relevant to coverage. Civ. DECLARATORY JUDGMENTS 37.001. The following are some specific ways that declaratory judgments can be used in family law. App. There is nothing that we find in the Declaratory Judgment Act that precludes you from filing this and asking your court to make this determination while you are in litigation. oEN>-BZ=/c]-ZP4U3o>0!f$F = FQfB@DlClYthnA mML.;Emu =uT App.Amarillo 1997, no pet.). App.Austin 1999, pet. Austin, TX 78746 The district court dismissed the indemnification issue, but granted judgment on defense, based on the extrinsic evidence. Rule 57 also notes that "the existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate." The Act provides you with a mechanism to get a ruling from the court before you are dragged through costly litigation. See Bailey, 133 F.3d at 369 n.4; Travelers Ins. 91a.1 Motion and Grounds. stream at 468. Google it and find out how your State has interpreted this remedy. App.Corpus Christi 2002, pet. Citing the Travelers case, the court recited the relevant factors the court must consider in determining whether to dismiss a declaratory judgment action: 1) whether there is a pending state action in which all of the matters in controversy may be fully litigated; 2) whether the plaintiff filed suit in anticipation of a lawsuit filed by the defendant; 3) whether the plaintiff engaged in forum shopping in bringing the suit; 4) whether possible inequities in allowing the declaratory plaintiff to gain precedence in time or to change forums exist; 5) whether the federal court is a convenient forum for the parties and witnesses; 6) whether retaining the lawsuit in federal court would serve the purposes of judicial economy; and. If the discovery is limited, or poorly conducted, or does not address the coverage issues, however, the insurer may seek additional testimony and evidence. Copyright 2013 - 2023. The purpose of the Declaratory Judgments Act is "to settle and afford relief from uncertainty and. In re Houston Specialty Insurance Co., 569 S.W.3d 138 (Tex. App.Texarkana 1967, no writ) (auto excluded); International Serv. App.Houston [14th Dist.] A declaratory judgment claim can be useful in a wide variety of circumstances. Yes*! A developing issue has been the extent to which declaratory relief is available to determine an insurers indemnity obligations, while the underlying suit is pending. All Rights Reserved. Sec. RestoringFreedom2016.com Kash Jackson campaign for defunding Title IV-D, and restoring constitutional parental and child rights. 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. See Bocquet v. Herring, 972 S.W.2d 19 (Tex. Twenty-Fifth Floor - Plaza of the Americas. App.Austin 1998, pet. 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. Declaratory judgment actions have been a recognized civil vehicle for more than one hundred years. See, e.g., Boring & Tunneling Co. v. Salazar, 782 S.W.2d 284, 289-90 (Tex. Co. v. Bailey, 133 F.3d 363, 368 (5th Cir. Here are the requirements: An informal or common-law marriage exists in Texas if the parties (1) agree to be married, (2) live together in Texas as husband and wife after the agreement, and (3) represent to others that they are married. If a proceeding under this chapter involves the determination of an issue of fact, the issue may be tried and determined in the same manner as issues of fact are tried and determined in other civil actions in the court in which the proceeding is pending. denied); State Farm Lloyds v. 1996); Williamson v. State Farm Lloyds, 76 S.W.3d 64 (Tex. denied); see also State Farm Fire & Cas. 1995) (whether trademark violation occurred during policy period). endobj State Farm argued the policy changes were made in Milam County, where the agent was located, and the policy was sold. Ins. Co. v. Ochoa, 19 S.W.3d 452 (Tex. xko9.ou _:=;0b+w)m3]WTy:>yYWOv]vs|?V~>zw"{}v~eM/XVY&R~Eou6Wv/ *]nT:^\-G:[A? SHORT TITLE, CONSTRUCTION, INTERPRETATION. Under the Declaratory Judgment Act, district courts have discretion to determine whether to entertain an action. denied) (failure to satisfy burden is not finding of proof of opposite). 1997), the Supreme Court reaffirmed the complaint allegation rule, with dicta suggesting that the exception for extrinsic evidence would be narrowed. The Texas Supreme Court concluded that 38.006 allowed recovery of attorneys fees for breach of contract unless attorneys fees are otherwise available. App.Corpus Christi 1982, no writ) (could not consider facts of ownership that conflicted with petition); Calderon v. Mid-Century Indem. Ins. Co. v. Bradleys Elec., Inc., 993 S.W.2d 673 (Tex. Because the insurer would be allowed to re-litigate, after the underlying case is resolved, there is no reason to delay the inevitable. 1 Partner, Scheef & Stone, LLP, Frisco, Texas. An advantage to arbitration may be the possibility of a quicker trial date, quicker final resolution, and privacy, but arbitration rulings are usually consid-ered final and cannot be appealed. Last week, the Texas Supreme Court settled a long-running dispute and upheld an appeals court's ruling that claimants can use the Uniform Declaratory Judgments Act to establish a carrier's liability for uninsured/underinsured ("UM/UIM") motorist benefits under the claimant's policy and obtain attorney's fees as well. Acts 1985, 69th Leg., ch. 1993) (Colorado River factors inapplicable in declaratory judgment action); Granite State Ins. [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.