*1
267
kins,
(Alaska 1978);
v.
Idaho
421
747
Vera N.
(Okla.1969);
Keen,
Birch v.
Co.
(1901) and disapprove must v. Lawson
Ulschmid,
(Tex.Civ.App.—
Waco writ ref’d Pruitt,
Petroleum Co. ref’d (Tex.Civ.App. Worth writ - Fort
n.r.e.); Guyer, 482 Berry v. S.W.2d (Tex.Civ.App. [14th Dist.] — Houston n.r.e.); ref d
writ McClellan v. Boeh
mer, (Tex.App. Corpus S.W.2d - writ). Christi no In all of these
cases, validity of upheld Texas courts releases,
personal Ulschmid
case even involved the same “200-1” nota is
tion as exists this case. This a lot precedent
Texas for the court to address it summary
in such fashion. equity,3
I can to do understand desire today
but the court’s decision is too one-sid- equity.
ed to fall under the rubric of If the result, determined reach
ought to at least be candid about its rea- I I af- respectfully
sons. dissent. would appeals.
firm the court of HECHT, JJ., join in this
COOK
dissent. statutes, (1961). see prob- For similar prefer that address this 29-113 § I would Texas (1957); by judicial art. Utah by legislation § fiat. also rather than Md.Ann.Code lem Idaho, (1953); N.D.Cent.Code example, personal release Code Ann. 78-27-3 § For (West (1987); § Cal.Civ.Code § fifteen after the occur- 9-08-08 executed within (1964); 1982); may anytime § tit. one Me.Rev.Stat.Ann. be disavowed at within rence § Code Conn.Gen.Stat. 52-572a year the occurrence. Idaho after
268 jury, to a found that
Trial was
right leg
lost the
of her
Martinez had
use
and that
use of both
polio,
due to
the lost
legs
totally
permanently
left her
and
incapacitated
upon the
for work. Based
Austin,
judg-
London,
petitioner.
jury’s findings, Martinez recovered
W.
for
Jack
percent
100
ment
Standard Fire for
Lawson,
A. Wright,
C. Vernon
David
disability
leg (repre-
permanent
to her left
Austin,
respondent.
for
senting 200 weeks
verdict),
jury
date
and the balance of
OPINION
perma-
for
her total
nent
benefits from
Fund.
MAUZY, Justice.
jur-
lacked
Holding that the district court
The issue
this workers’
party
as a
isdiction
action is whether suits
permit-
time
the action within the
named to
(Fund)
Injury Fund
must be filed within
8307,
5, the
by
ted
article
section
court of
period prescribed for
the same time
actions
appeals reversed
rendered
the Industrial Acci-
to set aside decisions of
nothing
recover
that Martinez
(Board).
Board
hold that notice to
dent
We
Fund.
pacity over the amount due for the later lawfully transacting liability or accident 673-676; See id. S.W.2d at business in Texas. Neither definition men- Keaton, v. Tex. Second Fund Further, or includes the Fund. tions 12c-2 which creates the Fund procedures, and defines its does not include Application Article Section the Fund as an “insurer” or “the Associa- 5 to the Fund Indeed, provides tion.” that statute provides perti- Article account, essentially the Fund is a bank part: nent comprised payments by insurance com- panies from workers’ death compensation] Whenever workers’ suit [a benefits due workers with no beneficiaries. brought, rights is liability parties thereto shall be determined pre- 12c 12c-l Article sections provisions of this and the suit of the manner in which the Fund must scribe injured employee person suing or on pay money. any Neither nor out these account of death of such Compensa- other section of the Workers’ Association, shall if provide Act tion suits employer injured of such or deceased em- subject Fund are of article ployee at the time of such or death any section 5. Nor does in- was a subscriber as defined this law. corporate article section 5 refer- If the final order of the Board is carefully Legislature speci- ence. The has Association, then the Association only fied that the cases to which article bring and not the shall suit to applies governed are section 5 those ruling set aside said final and decision of by its own terms and those in which its desires, if it so and the Court incorporated by terms are reference. in either event determine the issues shall In Johnson (1977) (emphasis in such cause ... add- (Tex.1985), S.W.2d 107 we held that ed). insurer, proce- Fund is not the same as an Johnson, durally substantively. In As the Fund concedes its brief to this court, sought not when Fund to establish for itself the this article mandates have, subrogation insurers even suit should be instituted but also brought though creating the Fund are suit should be within the statutes whom such subrogation. period. question limitations Neither silent on the This specified rejected argument, any specifies expressly statute that its Court this nor amending large returning through veterans Ch. Tex.Gen.Laws number of (1925) (section Special of a Fund out of art. 8306 the establishment Tex.Rev.Civ.Stat.Ann. urgent persons may compensated when 2: "there is an need to facilitate the which such they injury.”) handicapped persons including subsequent employment sustain a although since given opportunity, case shall be considered to include a claim Legislature the rights added the Fund.7 The could sought by the Fund.6 The Court held opportunity have taken the in 1977 to add rights neither duties nor could procedural steps by implication. be created Id. at 109. The by express It could have cases. done so further held that the rule of con- provision in Fund stat- concerning struction proceedings involving by defining utes or the Fund as “the associ- “expressio unius It company.” ation” or an “insurance alterius;” est exclusio enumeration in a by adding could have done so the Fund to particular person, thing, statute of a conse- parties list of suits when amended quence equivalent express or class is to an However, Leg- section 5. *4 exclusion of all others. Id. at 108-109. exactly it opposite islature did the when provi- Article section 5 enumerates procedural steps removed for claimants applicable sions to the em- Association and Thus, Injury Fund cases. the cur- ployers, but not the does mention Fund. only require give rent statutes to claimants it is Because not listed in article employer the file a injury notice of to 5, the section fund is not included in the against claim with the Board the insurer. mandatory procedures of that statute. Such action is deemed notice and claim fact, In pre- the that statute does against by express the the terms of Fund procedure any scribe for a claimant to fol- article section 12c. against pursuing low in a claim the Fund is Evidence in the record shows that Mar- 12c, provides in article section timely employer tinez both notified her pertinent part: timely filed her claim with the Board. The employer to “... notice of the Board, director of the Mr. Wil- executive filing a claim the Industrial Acci- with Treacy, that Martinez’ em- liam testified required by law shall dent Board as also timely ployer report filed a of with be deemed and considered notice to and Further, Treacy the Board. Mr. testified against a filing of claim the ‘Second ” fully the Board is aware that notice of that ry Fund.’ filing the a claim to regulates No in the Act the other year within one is deemed and considered the No filing against of suits Fund. other against filing of claim the notice to and a suit, separate sepa- a provision mandates a agreed Fund. The Board Board, separate rate at the a required it is article section that trial, award, separate appeal, separate fully require- 7b to advise claimants procedural any bring or to event to file claims. The uncontroverted ments Indeed, against Leg- Fund. the action the record, however, that evidence the shows in 1977 amended the statute to add islature no or rule of the Board there is statute language of the clear any particular the of words given requiring 12c is the the use that once notice provide legislature Legislature had to oth- Forty-four amended If the intended 6. later give periods 6a to the Fund the compensation of time within which er and different subrogation of as against same give and file claims the Sec- to notice Law June Fund, carriers. easily incorpo- have could Tex.Gen.Laws provisions in the Second rated Compen- to the Workmen’s Fund amendment Previously, Act Workers’ power legisla- with the sation Act. The rests as the manner in which a claim was silent to prescribe procedure method ture against perfected to be and con- the Fund was the Act. under question notice to the as when sidered. above, As the 1977 Id. S.W.2d at 512. stated given, the claim be and as to when Fund must legislative to the Fund amendments against was con- must be filed first procedure prescribed the method of to file in Industrial Accident sidered legislative against act the Fund. This claim Guidry, Tex. Board holding Guidry. effectively pre- holding jurisdictional overruled In that the against applied requisites 4a to claims of section Fund, we stated: phrase against the insur- “Second Fund” was both the Fund and carrier, making any a claim. Nor doc- awarded her is there ance the Board ument, form, or against claim instruction either the carrier but denied her benefits provided Fund, required by timely the Board or law she against claim carrier, any anything instructs claimant do but that she filed suit differently make a not sue the Fund until the time did ordinary expired. other than to make claim. appealing the Board award is not whether the claim The issue The Texas has mandated timely; The issue Fund was it was. method which the Second decision appeal of the Board’s whether given shall notice of it. a claim denying timely. that claim was Without Thus, pursuant hold that we to article issue, addressing this reverses 12c, Martinez’ the Board is notice to appeals judgment court of deemed and considered notice to and judgment trial affirms the court’s a claim Fund. The appeal I believe that the was dismissing trial correct court was timely as to and that plea jurisdic- Fund’s should judgment court of tion. We therefore reverse the *5 affirmed. of the court of and affirm judgment of the trial court. I HECHT, J., dissenting opinion files a totally Vera Martinez claims to be and PHILLIPS, J., C.J., COOK, in which and incapacitated a result permanently of
join. right leg use of due the loss of her to polio, subsequent and loss of childhood HECHT, Justice, dissenting. leg her left to an sus- use of Filing I a dissent. claim with the Indus- employment. tained in course of her Board, filing trial Accident and with a suit Industrial Board awarded her The Accident court to set aside the decision on Board’s of for the total loss use claim, obviously proce- that are different left her injured leg of her and not for total under the dures Workers’ permanent incapacity. and Two later curiously this Law. The Court overlooks timely that notified the Board she elementary The issue rather distinction. not abide its decision filed would states, case, correctly this as the Court suit the insurance carrier district procedure, filing involves the latter suit appeal carrier court. The did not is, appeal question decision. a Board The Board award. suits must such period pending suit had for al- filed within same time After the been months, the carri- prescribed eight all actions deci- Martinez and for to set aside most naming the pleadings the Industrial Accident Board.1 er each filed sions of question by holding party The Fund as a to the action answers dismiss injury to consti- first time. The Fund moved to that notice of the Board jurisdiction it for on claim Fund. This want of tutes they ground of were not filed within holding may well be correct statement very twenty days after Martinez’ notice it has little to do with but by its deci- case, certainly does not answer the Board that she would not abide sion, prescribed by question period No one that has been raised. (Vernon timely filed
disputes that the claimant here
Tex.Rev.Civ.Stat.Ann.
The
court denied the
Supp.1990).2
her
that that claim
district
claim with
noted,
Court,
statutory
Except
pending
as otherwise
refer-
case was
in this
While this
(Vernon
Com-
Legislature enacted a new Texas Workers’
ences are
Thx.Rev.CivStat.Ann.
Act,
pensation
1989 Tex.Sess.Law Serv.
Supp.1990).
(Vernon 1989).
governed
This case is
prior law.
Fund’s motion.3
injuries
period
re-
over a
of time could
injury only
compen-
cover for the later
trial,
At
the carrier conceded that Mar-
sation to which he would
been
have
entitled
tinez had lost
leg
the use of her left
due to
injured.
had he not
previously
been
The
compensable
jury
The
found that
purpose
provision,
of this
as this Court
Martinez had
her right leg
lost the use of
explained in Miears v. Industrial Accident
polio,
due to
the lost
and that
use of both
Board, 149 Tex.
legs
totally
had left
permanently
her
(1950), was
incapacitated.
trial court
The
rendered
persons
encourage
employment
judgment on
the verdict
Martinez re-
physically handicapped
previous inju-
cover
for the lost
her
use of
Obviously,
employer-
would
ries.
carrier,
leg
left
and the additional
discouraged
per-
from
employing
perma-
her total
due for
if he knew that
the law
sons
under
his
nent
the Fund.4
from
insurer
become
in the
would
liable
event
appeal by
On
disability
re-
a second
for the
appeals held
the district
court lacked
sulting from the
effect of the
combined
jurisdiction
Martinez’
dis-
injuries,
merely
two
and not
for the
party
Fund because
named
it was not
as a
resulting
ability
from the second
permitted by
to the action within the time
considered alone.
ap
The
section 5.
court of
salutary purpose
not
peals
as to
judgment
reversed the
the Fund
withstanding,
the result was that
em
and rendered
that Martinez re
ployee
would recover
if
less
nothing
cover
The IAB contended that Miears’ action was a claimant the as- mandamus, actually for and that venue carrier. of a sets proper County, was in Travis the seat of This af- at 575-576. S.W.2d government, state rather than Harris part part reversed in on other firmed County, where Miears resided. The court portion addressing this grounds, without appeals rejected of civil the IAB’s conten- opinion. 232 court’s S.W.2d tions, reasoning as follows: 671.9 *7 Fund, liability pay- for the The of the for this to ad- The next occasion Court for a second ments of additional benefits claiming against procedures for dress the amount, differ, injury except does not in in Injury the Fund came Industrial Second liability compensation of the Guidry, 162 Tex. Accident Board v. pay carrier to the for the loss Like Gui- which, 345 S.W.2d organ of the use of the member or totally and dry to have been injury totally too claimed previous because incapacitated as a result of employee. permanently the permanently and disables eyes, due to the of vision in both one loss liability the assets of the Since the the noncompensable injury, and an earlier carrier, liability of compensation and the injury in the course of other due to compensation, is the Fund for additional employment. Guidry notified his injury in a second identical cases where thirty days of its concerned, the latter within how could the framers of of compen- eye 201 weeks’ compensation was 100 Miears was entitled The for loss of sation, weeks, permanent incapacity, between what was due for the difference and for total and held, contrary incapacity what would have been due to the the The trial court 401 weeks. injuries they IAB, specific both been had entitled to additional com- for both that Miears was compensable. appeals held that The court also between what was pensation for the difference lump paid to be in sum. incapacity was due for the Miears was entitled and what due for the agreed Supreme with the trial court injury, The trial The Court a total of 301 weeks. latter or compensation ought paid weeks’ in that Miears was due 301 Miears to be also found that court lump Fund, Injury agreed with did not from the Second that the statute sum but concluded compensation appeals the was payment court that require lump the Second sum payable lump appeals that in sum. civil held ry The court of Fund. occurrence, against for claims requirements filed his of the statute his employer’s compensation carrier within six carriers. required injury, months of the all as Nevertheless, in re- fault Guidry’s However, Guidry section 4a. In a impair sult its rationale. does Injury notify did not the Second Fund of concurrently with Gui- similar case decided it his file a claim within explained: dry, court periods. Guidry eventually such When provi- Legislature engrafted the Injury sued the Fund for 301 Second Act Fund sions Second in compensation weeks’ for his Compensa- upon existing Workmen’s compensation he addition to received structure, providing Law without tion eye, the for the loss of his Second evi- procedure operation, for its detailed Injury Fund contended that the lan- dencing by enactment and jurisdiction of the action because lacked that adminis- guage used an intent it be Guidry failed to meet the notice and had part harmony in with as a tered requirements provisions existing The several law. 4a, Ultimately, Supreme as to it. being Compensation Law the Workmen’s upheld Fund’s conten- Second materia, it follows that it was pari in tions, requirements arti- holding that cer- intention of the within 4a, compensation apply cle the Second tain limitations Injury Fund alike. carriers and the Second in with accordance Fund be administered Legis- The Court reasoned that because by in- claims existing governing laws lature made in- jured workmen integral part of the Workers’ provisions an Therefore, may be generally. surers specifying Law without said, Legisla- intention it was the notice and claims procedures for the Sec- cases that ture second pertinent it intended that “all for the Injury Fund be substituted ond
provisions” for notice to and administra- compensation insurer equally apply carriers necessary to the law to the extent tion of Injury Fund. 345 S.W.2d at of the Second accomplish purposes (emphasis original). The Court conclud- legislative It is the Injury Fund Act. ed: intention by a A claimant in Sec- as the insurer stand not differ mate- does just so as a Injury Fund cases far proceeding by claimant rially from a nu- interpretation of the harmonious follows, It insurance carrier. merous therefore, necessary jurisdiction- permit. lav/ will prerequisites provided al [article Parker, Bd. Industrial Accident *8 8307, complied with section must 4a] (Tex.Civ.App. S.W.2d — Texarkana payment the Sec- in suits to secure n.r.e.). The held that ref’d writ required in as are other Injury employer injury to his Parker’s notice of Compensation cases. Workmen’s requirement for to the the notice satisfied article sec Injury Id. Fund under Second employ Having with his tion 4a. settled reasoning. its exceeded Guidry’s result carrier, however, filed had not er’s Parker Injury Fund been treated the Had Second thus had the IAB and timely a claim with carrier, Guidry’s notice to like an insurance of statute. requirement the not met his filed with the claim employer his interest the case in the The court remanded requirements met of IAB should have to justice give opportunity Parker an of to 4a, a claim for a to file good for his failure show cause requirements that the Guidry’s timely claim. claim specific notice a given IAB issue of sum, address the In three cases the claim be and that the Fund compensation apply to procedures directly beyond went what against filed Fund, op- Legislature returned In Injury Fund to its of the Second Miears, Parker, eration Guidry and and all con- scheme, employee again making the clude that the Fund is to be treated Leg- The against the Fund.11 the claimant compensation same as a carrier to the ex- proviso arti- an additional to islature added Compen- possible tent under the Workers’ 12c “that notice cle Guidry The sation Law. Court refers filing of a claim with to the footnote, only briefly, in a mentions Miears required Accident Board as the Industrial ignores altogether. Parker deemed and considered by law shall also be filing to and of a claim notice B Thus, Injury Fund’.” the 1977 ‘Second changed holding of amendments Gui- repudiated Legislature The has never observes, and correctly dry, as the Court con- Guidry and Parker. On the holding adopted part Parker. trary, Legislature in actions however, cases, and of rationale of those 1977 and 1985 confirm the rationale and like Fund is to be treated Miears—that the holdings of those cases. compensation carrier —was left private Legislature In amended the rely appears to undisturbed.12 The Court legislation pro- 1947 Second its heavily on the 1977 amendments for compensation vide that a carrier would be however, those amend- holding. Plainly, fully responsible incapacity result- for the claims, filing pertain only ments ing injuries, that the from successive but appeals from Board and not to the carrier could obtain reimbursement decisions. difference between that amount and the In indicated the later extent to which it intended the Second effect, from the Fund.10 In Second a carrier. On ry Fund to be treated like the 1971 amendments made the claimant year, issued its April 10 of that this Court Fund the carrier instead opinion Johnson employee. Amended article (Tex.1985),holding 12c-l, required that a carrier file its right of the Fund did not have the Fund within 180 employee’s to an subrogation a carrier has employee’s date of recovery against a tortfeasor for an Apparently, Legislature prescribed paid. The on which has been period within to file claims time distinguished but did not disavow Court specified the Fund when it had not Subrogation, Guidry and Parker. period changing such a before because said, historically right limited is a the claimant from the ought law which not to exist provision of the statute carrier no similar clearly Legisla- unless mandated obliged by apply. The carrier is not would reasoned, Furthermore, the Court ture. a claim any to file with subrogation allowing the Fund a Legislature appears IAB. Before it, affect the monies available would judicial satisfied with the dis- to have been (in expressly by the statute matter treated 12c-2), cernment that it intended 8306, section unlike the sub- like a claiming against Fund to be treated procedures for ject of made like treatment was the statute was silent. carrier. When fund as to which *9 amendments, issued, the by Only the 1971 after impossible Johnson repudiated the distinction the provi- Legislature additional Legislature included an had drawn between the Second sion. in Second 12. What this Court observed May Tex.Gen. ch. 10. Law of Keaton, (Tex.1961), Laws 1257. far, Legislature the Texas remains true: “Thus comprehensive fit to enact a Sec- has not seen Tex.Gen. June 11. Law of Statute_" Injury Fund Laws 2004. brought, rights private by amending ever such suit is ry Fund and carriers give liability parties article section 6a to the Fund the thereto shall be subrogation same this by determined Thus, only carriers.13 case to treat the injured employee ... and the suit of the differently from a Association, if the against shall carrier was disavowed employee at employer injured ... of such than two months after it was decided. less injury ... was a sub- the time of such upon the sole case which the Johnson is in this law. If the as defined scriber holding, legislative as if Court relies for its against the final order of the Board is inconsequential. disapproval simply were Association, and not then the Association aside bring suit to set Legislature since shall The actions of the ruling decided and decision of Guidry and Parker were said final desires, consistently supported reasoning Board, court shall have their if it so and the against a claimant in the issues event determine either “[a] Board, Fund does not differ cause, upon the Second instead materially proceeding by a claimant novo, proof and the burden of trial de Guidry, insurance carrier.” compen- claiming upon party shall follows, therefore, 512. It 345 S.W.2d at to such final any party .... If sation Injury Fund should be the Second Board, after ruling and decision of carrier private compensation like a treated provided, having given notice as above Compensation Law under the Workers’ (20) twenty days to insti- fails within said possible. when the same prosecute a suit to set tute aside, ruling decision final then said Ill there- binding upon parties shall be claim Given that to.... generally Fund is to be the Second filing period of argues that the Martinez private com- claim treated like a apply not to suits section 5 should carrier, the issue becomes wheth- pensation ex- its Fund because by article period prescribed er the time applies language section 5 press suing aside a to set section 5 Association”, defined “the applies IAB decision but insurance carriers section to include so, if with what merely begs argument the Fund. The not case. effect treating very reason for question. is Fund like a carrier because A spec- Compensation Law does Workers’ perti- provides Article followed for mak- ify procedures to be part: nent Fund. The Fund is ing claims willing party who is not Any interested possible. where like a carrier to be treated by the final to abide and does not consent argues applying Ac- Industrial ruling and decision of [the section 5 requirement of article (20) shall, twenty within cident Board] Injury Fund con- against the Second suits final rul- of said days after the rendition 12c-l, flicts with file with said ing and decision Fund is to be payment by the states that he not abide notice that will said Board paid. By is made after other he decision. And ruling final by said argues, a provision, Martinez this latter (20)days giving twenty after within shall not accrue the Fund does county bring suit in the such notice liability estab- the carrier’s until after occurred, in the coun- where however, directly argument, This lished. at the resided ty where of this Court the conclusion conflicts with set aside ... occurred time decision_ have *10 claims should Guidry, When- ruling “[b]oth final said 1387. Tex.Gen. Laws Law of June Ehl v. presented joint proceedings New York Underwriters Ins. Co. been (Tex.Civ.App.— against adminis- inger, the Second Fund as writ). 1980, no against tered the assets Houston Dist.] [14th administered carrier sue did not the Second Martinez company.” Guidry, the insurance prescribed period, and time Fund within Applying filing require- at 512. S.W.2d by its did not sue the Fund the carrier to suits ment of article section 5 Latham, 491 permitted by answer date as not against Fund does no recourse at 103. There is S.W.2d 12c-l, conflict with com- Injury Fund for against the Second any Com- the Workers’ except by the pensation as authorized pensation Law. Keaton, Law. Workers’ Miears, Accordingly, attempts distinguish at 713. Martinez Martinez S.W.2d against action the Second which held venue no cause of Fund, should have applicable ry to suits the Second and the district court jurisdic- action for by arguing that venue is dif- her want dismissed jurisdiction. Martinez also ferent tion. distinguish as Guidry
tries to
and Parker
involving only section
article 8307 and
4a of
IV
Conceding
not section 5.
these distinc-
judgment
The court of
rendered
tions, however, does
common
not avoid the
nothing against
take
the Sec-
that Martinez
proceed-
conclusion of these
cases
“[a]
judgment
Injury Fund. Rendition of
ing by claimant
Fund differs
inappropriate
in an action
on the merits
way
by a
in no material
from a
jurisdiction.
the trial court lacks
over which
compensa-
claimant
assets of a
judg-
Accordingly, I would
reverse
tion carrier.”
deadline imposes greater injuries
cessive no burden prescribing than a deadline
on an claims.
for other B Petitioner, THOMPSON, Tommy mandatory, and Article section 5 is v. jurisdiction has over an action no court INDEMNITY CO. OF TRAVELERS a Board award filed outside set aside ISLAND, Respondent. RHODE period. time Fire prescribed Standard LaCoke, 585 S.W.2d v. Ins. Co. No. C-8895. (Tex.1979). Timely to set aside suit Texas. Supreme Court of potentially as to one carrier Board award not employee’s does liable on 9,May against another carrier the claim preserve Security Ins. timely sued. Latham Co., (Tex.1972). Time- pre- improper does not
ly party suit proper party. claim of See
serve