PJC General Negligence 2022

P ERSONAL I NJURY D AMAGES

PJC 28.3

§ 33.001; Tex. R. Civ. P. 277. This instruction should be omitted if there is no claim of the plaintiff’s negligence. Also, if an exclusionary instruction for failure to mitigate damages is required, this instruction should be modified. See PJC 28.9. 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). 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 con tract will be the same liability and damages questions used in third-party liability cases. See Brainard , 216 S.W.3d at 818. Note, however, that in presenting these liabil ity and damages questions to the jury, the UM/UIM carrier remains the real party in interest and must be identified to the jury as such. See Perez v. Kleinert , 211 S.W.3d 468 (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 motorist).

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