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State Farm Mutual Automobile Insurance Co. v. Brekke1/31/2005
"the only prerequisite which has survived judicial interpretation is that service of process be served on the insurer when suit is initiated against an uninsured." Id. The service of process offers the insurer the right to file pleadings and defend the uninsured motorist. Id. In fact, unlike Texas, most states have determined that the insurer has a right to intervene as a matter of law to defend the uninsured motorist, should the insured fail to join the insurer. See Milton v. Preferred Risk Ins., 511 S.W.2d 83, 86 (Tex. App. 1974).
The majority's assertion to the contrary, it is not the insurer's "unique" role in tort litigation generally that determines its right to jury trial. If anything, the insurer has a "unique" role in the UM context that warrants that the insured participate in UM litigation.
Because of the adversarial relationship between the insured and the insurer in the UM context, the insurer serves in the capacity of a co-defendant when joined in the tort litigation against the uninsured. The insurer bears potential responsibility for any judgment entered in that litigation. I do not agree that the unique nature of UM litigation deprives the insurance company, as a matter of public policy, of the right to a full jury trial on the issue of damages any more than it would deprive it of such a right, as a matter of public policy, in bad faith or contract litigation.
IV. Conclusion
Neither the UM statute nor this court's precedent compel us to conclude that an insurer's "actual trial" clause contravenes public policy. Although an insured is entitled to the benefit of uninsured coverage when necessary, such coverage is not inappropriately diluted if it includes a demand that the matter be fully litigated if necessary. Accordingly, I respectfully dissent and would reverse the court of appeals' decisions in these cases.
I am authorized to state that JUSTICE COATS joins in this dissent.
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