PJC General Negligence 2022

B ASIC N EGLIGENCE Q UESTIONS

PJC 4.4

the percentage attributed to all defendants in answer to PJC 4.4 in proportion to the rel ative percentages found for each defendant in answer to PJC 4.3. If there is more than one contribution defendant. If the question inquires about the responsibility of more than one contribution defendant, a separate percentage answer should be sought for each such contribution defendant. Blanks for question numbers. The question number to be inserted in the blank space in the conditioning instruction should coincide with that of the underlying liabil ity question. Use of “injury” or “occurrence” in PJC 4.1. The term used in the question at PJC 4.1 (see PJC 4.1 Comment) should also be used in PJC 4.4. Uninsured/Underinsured Motorist (UM/UIM) cases. In UM/UIM cases, an insured is legally entitled to recover under his UM/UIM policy once he obtains a judg ment establishing the liability and underinsured status of the other motorist. See Brain ard v. Trinity Universal Insurance Co. , 216 S.W.3d 809, 818 (Tex. 2006); see also Allstate Insurance Co. v. Irwin , 627 S.W.3d 263, 270 (Tex. 2021), reh’g denied (Sept. 3, 2021) (approving use of declaratory judgment action “to determine the parties’ sta tus and responsibilities under the UM/UIM policy prior to its breach”). In this manner, UM/UIM coverage is unique because it uses tort law to determine coverage, and in doing so the questions necessary to establish coverage under the insurance contract will be the same liability and damages questions used in third-party liability cases. See Brainard , 216 S.W.3d at 818; see also Irwin , 627 S.W.3d at 265–66. Note, however, that in presenting these liability and damages questions to the jury, the UM/UIM car rier remains the real party in interest and must be identified to the jury as such. See Perez v. Kleinert , 211 S.W.3d 468, 472, 476 (Tex. App.—Corpus Christi–Edinburg 2006, no pet.) (granting new trial where insurer’s attorney was permitted to conceal and deliberately misrepresent his identity to the jury as attorney for third-party motor ist).

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