In Re State Farm Mutual Automobile Insurance Company and Lindsey Nicole Dessart

Supreme Court of Texas
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No. 23-0755
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In re State Farm Mutual Automobile Insurance Company
and Lindsey Nicole Dessart,
Relators

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On Petition for Writ of Mandamus
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JUSTICE SULLIVAN, joined by Chief Justice Blacklock, Justice
Devine, and Justice Young, concurring.

Suppose you’re running late to a movie premiere. It happens.
You dip into the theater mid-screening and try to pick up the plot. It’s
a film noir, though, and you missed the first act. You think to yourself:
Who’s this fat man? Why does he need that bird statuette? Is everyone
going to pull a gun on Humphrey Bogart? You’re tempted to ask the
moviegoers around you, who are following the drama because they were
in their seats for the opening credits.
Don’t be that guy. There’s no need to break their spell with dumb
questions—you’ll just have to catch a later showing. In the words of
Walter Sobchak, “life does not stop and start at your convenience.” THE
BIG LEBOWSKI (PolyGram Filmed Entertainment & Working Title Films
1998). I join the Court’s opinion with this lesson in mind, saving for
another day my many questions and concerns about Brainard v. Trinity
Universal Insurance Co., 216 S.W.3d 809 (Tex. 2006).
Some of my questions about Brainard were aired by then-Justice
Blacklock at oral argument in this case, which was heard a few months
before I was honored with an appointment to our collegial Court, and
in a “Zoom” argument back in 2020. 1 But there will be plenty
more occasions for head-scratching over Brainard. Indeed, such a
recurring drain on scarce judicial resources seems like a real problem.
Perhaps in one of those cases, the parties will join issue on whether
Brainard should be overruled. 2
In writing for the Court today, Justice Devine capably and
dutifully pens the next chapter of a serial novel that Brainard
commissioned almost two decades ago. The Court takes as a given here,
as did In re State Farm Mutual Automobile Insurance Co., 629 S.W.3d
866, 875–88 & n.3 (Tex. 2021), that Brainard’s reading of the phrase
“legally entitled to recover” is sound. See Brainard, 216 S.W.3d at 818
(“[T]his language means the UIM insurer is under no contractual duty
to pay benefits until the insured obtains a judgment establishing the

1 See, e.g., Oral Arg. Recording at 17:53–18:49, Cause No. 23-0755 (Tex.

Oct. 3, 2024); Oral Arg. Recording at 7:45–12:20, Cause Nos. 19-0791 &
19-0792 (Tex. Dec. 2, 2020). Confusingly enough, and perhaps tellingly, the
foregoing cases are all captioned as In re State Farm Mutual Automobile
Insurance Co.
2 In some future case, the parties and our amici might do well to study

the vivisection of Brainard that Justice Birdwell recently performed in another
case. See In re Progressive Cnty. Mut. Ins. Co., No. 02-25-00039-CV, 2025 WL
450707 (Tex. App.—Fort Worth Feb. 10, 2025, orig. proceeding [mand. denied])
(Birdwell, J., concurring) (op. filed Mar. 20, 2025).

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liability and underinsured status of the other motorist.”); see also TEX.
INS. CODE § 1952.106.
And why not? After all, “[j]udges are not like pigs, hunting for
truffles buried in briefs.” United States v. Dunkel, 927 F.2d 955, 956
(7th Cir. 1991) (per curiam). Brainard is cited just one time in the
parties’ briefs on the merits, and once more in a recent letter flagging
Justice Birdwell’s good concurrence. That strikes me as too little, too
late. I’m prepared to join the parties in assuming that Brainard got it
right, at least for purposes of disposing of their case in a timely fashion.
See Ante at 8 n.21 (citing Mitschke v. Borromeo, 645 S.W.3d 251, 263
(Tex. 2022)). On that understanding, I’m pleased to concur.

James P. Sullivan
Justice

OPINION FILED: April 25, 2025

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