AUSTIN ISD v. Manbeck
2011 WL 1105720
Tex. App.—Waco2011Background
- AISD is a self-insured governmental entity appealing a Division extent-of-injury decision.
- Manbeck claimed injuries beyond the shoulder, including back injuries, and AISD disputed the extent of compensable injury.
- The Division awarded benefits for the additional conditions; AISD sought judicial review; Manbeck counterclaimed for attorneys' fees under Labor Code 408.221(c).
- AISD non-suited its judicial-review claim leaving only Manbeck's fee counterclaim for trial; a jury awarded fees for pre-non-suit work, post-non-suit work, and appellate fees.
- The district court entered judgment consistent with the jury; AISD appeals on (a) whether fees incurred after non-suit are recoverable and (b) whether the pre-non-suit fee award is legally/factually sufficient; the court affirms the pre-non-suit award and reverses/post-non-suit/contingent appellate fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 408.221(c) permits 'fees for fees' after a carrier non-suit | Manbeck argues fees incurred pursuing fee recovery are recoverable | AISD argues recovery is limited to fees incurred in prevailing on carrier-appealed issues and not fees for pursuing fees | Issue sustained: post-non-suit fees are not recoverable; only pre-non-suit fees may be recovered |
| Whether the pre-non-suit fee award is legally and factually sufficient | Manbeck contends evidence supported $36,000 as reasonable/necessary | AISD contends the evidence was insufficient/unreasonable | Issue overruled: pre-non-suit fee award of $36,000 for Lee/Stewart is supported |
Key Cases Cited
- Twin City Fire Ins. Co. v. Vega-Garcia, 223 S.W.3d 762 (Tex.App.—Dallas 2007) (subsection (c) limits recovery to issues prevailed on)
- Discover Prop. & Cas. Ins. Co. v. Tate, 298 S.W.3d 249 (Tex.App.—San Antonio 2009) (as-a-result-of language requires fees incurred on review of prevailed issues)
- Transcontinental Ins. Co. v. Crump, 274 S.W.3d 86 (Tex.App.—Houston [14th Dist.] 2008) (fee-recovery as a result of the carrier's appeal; distinction based on non-suit questioned)
- Vega-Garcia, 223 S.W.3d 762 (Tex.App.—Dallas 2007) (clarified scope of fees recoverable under 408.221(c))
- Harris County Hosp. Dist. v. Tomball Reg'l Hosp., 283 S.W.3d 838 (Tex.2007) (legislative intent and fee awards under workers' comp)