709 S.W.2d 778 | Tex. App. | 1986
Lead Opinion
OPINION
This is an appeal from an award of attorney’s fees in a workers’ compensation suit. We affirm.
The attorney of Appellant Venita Courtney submitted a proposed judgment, signed
At a hearing on both of the motions, Appellant’s attorney conceded that the judge had complete discretion in awarding attorney’s fees, but argued that there was no statutory or case authority justifying use of the Widow’s Pension Table. Appellant’s attorney contended that since there was no evidence to suggest his client would remarry, the 1978 Life Tables should be used. In response, Appellee cited several cases in which the Widow’s Pension Table had been used and argued that the likelihood of remarriage was a factor in determining a widow’s benefit. In its findings of fact and conclusions of law, the trial court found that:
As a matter of law, the Widow’s Pension Table of the Texas Workers’ Compensation Act, certified as correct by the Industrial Accident Board, is the appropriate table for use in determining the present value of Plaintiff’s future benefits for purposes of calculating a lump sum attorney’s fee award. See Stott v. Texas Employers’ Insurance Association, 645 S.W.2d 778, 779 (Tex.1983) and Texas Employers’ Insurance Association v. Dryden, 612 S.W.2d 223, 225 (Tex.Civ.App.—Beaumont 1980, writ ref’d n.r.e.).
In the modified judgment signed on September 13, 1985, Appellant’s lump sum award for accrued benefits was restated as $29,687.00, but her award for future benefits was changed from a lump sum to a weekly rate. The court awarded attorney’s fees of $7,422.00, representing twenty-five percent of the accrued benefits, plus $32,-779.00, representing twenty-percent of future benefits based on the Widow’s Pension Table.
Appellant assigns two points of error. Essentially Appellant’s complaint is that the trial court erred in using the Widow’s Pension Table instead of the 1978 Life Tables in determining the present value of Mrs. Courtney’s future benefits for purposes of calculating a lump sum attorney’s fee award. Appellant points out that the Workers’ Compensation Act itself does not provide for lump sum payments to be discounted by remarriage and argues that since Mrs. Courtney’s payments are weekly without a discount for the possibility of remarriage, the attorney’s fees should not be reduced by the possibility of remarriage.
Appellant argues that the Widow’s Pension Table should not be used to calculate future benefits on which attorney fee awards were based because the table fails to take into account the two-year lump sum payment made to a widow or widower upon remarriage. Tex.Rev.Civ.Stat.Ann. art.
Both parties correctly assert that the amount of attorney’s fees and the method of their determination is within the trial court’s discretion. Texas Employers’ Insurance Association v. Motley, 491 S.W.2d 395, 397 (Tex.1973); Texas Employers’ Insurance Association v. Critz, 604 S.W.2d 479, 485 (Tex.Civ.App.—Texarkana 1980, writ ref’d n.r.e.). To reverse the trial court’s determination there must be a clear abuse of discretion. Although Appellant argues here that the Widow’s Pension Table is inaccurate and unreliable, none of the statistical data contained in Appellant’s brief was presented to the trial court. Nor was any other form of evidence adduced tending to discredit the Widow s Pension Table as a means of deriving the present value of a widow’s future benefits. Moreover, Appellant offered no evidence, legal arguments or case law before the trial court supporting use of the 1978 Life Tables as a correct means of calculating the present value of Appellant’s future death benefits, for awarding attorney’s fees or for any other purpose. On the other hand, Appellee presented and argued cases in which the Widow’s Pension Table had been utilized. See: Stott, supra, at 779; Dryden, supra, at 225. Furthermore, the Supreme Court has suggested in Twin City Fire Insurance Company v. Cortez, 576 S.W.2d 786, 790 (Tex.1978), that the expectancy of remarriage, however calculated, is a factor in analyzing the present value of unaccrued widow’s benefits. Although it is arguable whether the Widow’s Pension Table is the optimum method of calculating future death benefits, we do not find that the trial court abused its discretion by its use. Appellant’s points of error are overruled.
The judgment is affirmed.
Dissenting Opinion
dissenting.
I concur, subject to my dissent in Courtney v. Texas Employers’ Insurance Association, No. 08-85-00261-CV.