IN THE SUPREME COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

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No. 04-0427

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State Farm Mutual = Automobile=20 Insurance Company, Petitioner,

Teresa Nickerson,=20 Respondent

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On Petition for Review from = the

Court of Appeals for the Sixth = District of=20 Texas

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Argued April 14,=20 2005

Chief Justice Jefferson = delivered the=20 opinion of the Court.

Justice O=92Neill did not = participate in=20 the decision.

The = issue in=20 this case is whether an insured can recover attorney=92s fees under = Chapter 38 of=20 the Civil Practice and Remedies Code from her underinsured motorist = (UIM)=20 insurer.

Teresa=20 Nickerson was injured in an automobile collision with Calvin = Christopher.=20 Nickerson sued Christopher, but she released her claims against him = after=20 accepting a $25,000 payment representing the limits of Christopher=92s = insurance=20 policy. Nickerson also accepted a $10,000 payment of personal injury = protection=20 (PIP) benefits from State Farm. Believing her damages to be greater than = Christopher=92s policy limits, Nickerson sued State Farm to recover = under the UIM=20 provision of her policy, which had a $300,000 limit. At trial, Nickerson = sought=20 to establish Christopher=92s liability and recover attorney=92s fees = under Texas=20 Civil Practice and Remedies Code subsections 38.001 and 38.002.

On = November=20 13, 2002, a jury found that Christopher=92s negligence proximately = caused=20 Nickerson=92s damages and awarded her $225,000 in actual damages and = $46,500 in=20 attorney=92s fees incurred during trial. On December 4, 2002, State Farm = paid=20 Nickerson $191,294.52, representing the actual damages ($225,000), minus = offsets=20 ($35,000), plus interest on $190,000 at a rate of ten percent simple = interest=20 from November 13, 2002, through December 4, 2002. The trial court signed = a final=20 judgment on December 6, 2002, finding that Nickerson was entitled to = actual=20 damages of $225,000 plus prejudgment interest of $181,849.32 accruing = from the=20 date suit was filed until the day prior to judgment. Based on these = findings it=20 awarded Nickerson $300,000, the limit of her UIM policy. Additionally, = the trial=20 court awarded Nickerson $46,500 in attorney=92s fees and postjudgment = interest.=20

On = appeal,=20 State Farm initially challenged both the attorney=92s fees and = prejudgment=20 interest awards, but later withdrew the prejudgment interest issue, and = on=20 November 18, 2004, paid the remainder of the UIM policy limit of = $300,000. The=20 court of appeals affirmed the trial court=92s judgment. 130 S.W.3d 487. =

The = only=20 issue on appeal to this Court is whether the attorney=92s fee award was = proper. In=20 Brainard v. Trinity Universal Insurance Company, also issued = today, we=20 hold that an insured may recover attorney=92s fees under Chapter 38 only = if the=20 insurer does not tender the UIM benefits within thirty days after the = trial=20 court signs a judgment establishing liability and underinsured status of = the=20 other motorist. ___S.W.3d___, ___ (Tex. 2006). In this case, State Farm = had no=20 contractual duty to pay benefits until the trial court rendered judgment = for=20 Nickerson. Brainard, ___S.W.3d at ___. Thus, there was no =93just = amount=94=20 for State Farm to owe, and Nickerson had no claim to present before the = trial=20 court rendered judgment. Tex. = Civ. Prac.=20 & Rem. Code =A7 38.002(3). Therefore, the trial court erred = in awarding=20 Nickerson attorney=92s fees incurred during the trial, and the court of = appeals=20 erred in affirming that judgment.

For = the=20 reasons stated in Brainard, we reverse that part of the court of = appeals=92=20 judgment awarding attorney=92s fees incurred during the trial and render = judgment=20 for State Farm on that issue. Tex. R.=20 App. P. 60.2(c). We affirm the remainder of the court of = appeals=92=20 judgment. Id. 60.2(a).

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Wallace B.=20 Jefferson

Chief=20 Justice

OPINION=20 DELIVERED: December 22,=20 2006 &nb= sp; &nbs= p; = ; = =20