*1 INSURANCE TEXAS EMPLOYERS Petitioner, ASSOCIATION,
v. Respondent. MOTLEY,
O. H. B-3554.
No.
Supreme Court Texas.
Jan. 1973.
Rеhearing March Denied 1973. Groce, Hebdon, Locke Hebdon & Jack Antonio, Guess, pe- D. San James titioner. Houser, Inc.,
Tinsman Richard Tins- & man, Antonio, respondent. San GREENHILL, Chief Justice. main this workmen’s compensation power is the of the trial case court to order the fees of the wоrkman in when the verdict, employee, jury’s injured is to be installments. This *2 question is the first time that this has been services.” 7c of Article Section 8306. presented spells The of civil The thus out that to court. court statute when the judgment compensation the trial workman is in affirmed of to recеive his lump pay- court directed the sum installments as a result of an order of the Board, ment we agree lawyer. of with is his holding. that 709. The 483 S.W.2d second is that One reason for this when there is question deals with the acceleration of recovery no death claim and when is basеd weekly payments to the workman. Our general on an award Board for a holding jury no was re- is that since issue injury, amount that the insurance the total quested a need for an acceleration to company may in installments is to payments, the issue was waived. We definitеly be at the ascertainable time reverse the both judgments therefore retains the to right award. The Board pay- courts which accelerated the below Moreover, modify if the em- the award. to and remand the cause the district ployee dies beforе he receives all of the judgment court entry in accord- compensation pay- in weekly him awarded opinion. ance with this ments, say liability the cases ceases; e., the the insurance i. injured employee, Motley, The O. H. portions the claim are extin- unmaturеd general injury suffered a was awarded guished Employers his death. by permanent for total and dis- Phillips, Assn. 130 Tex. 107 S. Ins. v. ability. complaint There is no that. so, por- this is (1937). W.2d Since jury The that it would in found not result by tion recoverable hardship Motley’s compensa- a manifest certainty at time be ascertainable tion payable installments. lump sum Hence Board’s award. complaint There as to is no that either. present recovery attorney would complaint And Motley has no as to action problems. court as to the trial attorney. complaint of The the insurance hand, compen if the On the other court, exercising trial court, upon judgment sation is based discretion, directed the judgment become final or has either Motley’s attorney’s by fees the insurance affirmed, by awarded the amount sum. Its in a contention death does survive the workman’s fee must taken each subject and is not modification reduc to Motley, week from the sums recovered Co., Bailey tion. v. Travelers Insurance court, statutes, and that the trial 1964). The attor (Tex. S.W.2d 562 power had no direct de- otherwise. Our therefore, ap ney’s fees, may be fixed or construction, statutory cision turns on proved certainty by the trial court power is as the trial light which will re of the amount court. claiming covered or those The provisions make different statutes him.
for recoveries before thе Industrial Acci- out, pointed dent As there is a restric Board and recoveries obtained tion as to can do in judgment what the Board award compen- in court.1 When the ing placed sation fees which was not is based on an award of Board installments, and is in its authorization of the statute provides Board, the court in these that the Board “shall The cir fix . act. cumstances, approve the proportion can of each to be installment attorney. attorney] on account of said [to emphasis statutory All 1. All references to Vernon’s Texas Civil Statutes Annotated. ours. 7d, torney receipt of a from the authorizes the court passed upon by a the matter can be “fix the re- where and allow” without such may have periodic as to court. Indeed striction such installments. expense prepa- incurred substantial context, be- It is true that in Section 7d trial; ration of the and the case legality of a con- gins speaking to the *3 expenses is now. payment for his of such tingent fee contract between the workman payments at- discussing lump sum his of the In not to exceed attorney, 25% his torney’s Larson in work on Work- the But amount recovered workman. Compensation says, court has the of that men's construed rest give dis- independent to the court Section of the troublesome difficul- most “One fixing attorney’s cretion as to fees. the compensating the claimant’s attor- in ties This court has held that the the that, ney practice under the normal attorney’s fees to be allowed in install- paying weekly benefits in income tion cases is a to matter for the trial court ments, payment attorney’s fees the determine jury, without the aid a install- from week out these to week recovery its the amount of the within paid gets attorney means the Employers Assn. v. discretion. Texas Ins. period, a dis- long driblets a in over Hatton, 199, 848 Tex. S.W.2d ev- proportionate amount of bother for ; Ins. Brooks (1953) Emрloyers v. Texas eryone.” (Volume 3, 83.13, page 354.- § Assn., Tex.Civ.App.I962, 358 S.W.2d 54). ref., writ n. r. e. paid attorney’s If the fees could be Legislature the has restricted Since compen- in installments out of the handling the trial court in the workman, might sation to the the fees it as did the Industrial Accident facing might be a for dilemma. It be best Board, trial we hold that the court had the workman in payments to receive lump power and the discretion to order a installments; and it would be duty payment by sum insurance attorney to argue for the best interest fees. payments of his client in for installmеnts. time, At the if same it is at- best for the are, us, There to other reasons to torney sum, to his fee in lump receive a he support this view. When the workmen’s against would his arguing interest own passed, act was to best client’s serve interest. We his payments in wages were to be lieu of temptation argue to for a not consider the which the workman could not earn because lump for sum the workman incapacity. was, of his There we un lump receive his in a sum. could fee it, feeling derstand a it might not be problems simi- is that the are not fact two labоrer, give wise to in mon unskilled ; by stat- they lar are controlled and unless ey management, large money sum in a ute, discretion court should have him, lump might sum. best It problems separately. at We to look family, his if him money to in- perceive Legislature may have his weekly, receiving hаd been he—as tentionally judgments left room however, wages. made, in Provision was provide the work- installment payment 15 of Article lodge in the trial discre- man and do other lump workman sum to provide attor- tion as to whether to hardship. wise would result in manifest ney’s fee sum. interрret hardship” as the “manifest used in hard Section 15 to mean manifest above, question is one of As noted workman, ship attorney. to the not his The statutes statutory construction. find different that we hand, states are so has various
On other any arriving majority at protect difficulty necessary not deemed the at- minority analogy impressed view. See Annotation A.L.R. to the attor- point beginning ney’s 899 where trying discussed to exact fee from the page sup- on great many gets money. 955. There are a before workman he plemental citations, but the hаve annotators attempted any state newer conclu- Acceleration sions. There are statutory two alterna In Indemnity Insurance Co. v. tives to Bush, 163 224 (Tex.Civ.App.1942), S.W.2d regular compensation a weekly on basis. the trial court had directed the complete рayment, One is for a installments out and the other but award; workman’s but the com- provided on accelerated Both an basis. pany appealed on grounds that no *4 for on the basis of need. 15a of proof was offered as any contract be- provides for an Article increase attorney
tween the workman and his and the of to the em proof that no was offered that the attor- ployee when it is” that the amount shown ney’s necessary. Referring efforts were ordinarily payable inadequate. is to him above, Section 7d of the statute discussed question But like the of manifest hard- court that wrote fee “[T]he sum, ship bring ques- about a allowed ... is pertaining a matter of pay- tion of need for an acceleration only to the claimant attorney, and his [and is question jury. also a fact is оrdinarily of no concern to the insur- it] acceleration, claimant seeks it is If the his carrier, ance and is particularly within the request and to obtain a burden an issue discretion cas- [citing court.” jury finding favorable thereon. Since appellant “The company] еs] [insurance here, request there was no such the issue having injury shown no by the court’s ac- was waived. tion in respect, assignment will be overruled.” see no injury to the insur- holding The of court of civil ance money here. It owes the appeals was, however, there that was not under the judgment, and the amount here; so, being an acceleration and that payment present has been discounted to its any request was necessity there no for or value from that it would had if have jury finding on acceleration. paid in installments. rate, wage of his thе workman Because The insurance company points out that per payments entitled to here was $49 fee, the tois come this, by virtue week 401 weeks. Out from that amount “recovered” attorney, his contract his attor- of his argument workman. The is that mon- one-fourth, ney entitled to was $12.25 ey actually is not “recovered” the work- was entitled to per So the workman week. man until gets he it in hand in install- for 401 per weeks. receive week $36.75 ments. If this were a contest between the to receive workman desired $49 But the workman attorney, and his and thе attor- number of weeks. per week for a fewer ney insisting were being paid on ain definition, That, acceleration of is an sum the workman before the workman above, and, takes noted payments; got his money compa- from the insurance accelerаtion to finding a fact a need ny, we probably would agree with the accomplish that result. such workman. But is not the case here. Whether the insurance company reasoned that owes the court of civil The is, course, prob- top fee now of off the if the case; lem in any attor- money whether the longer is no owed workman “recovered,” or recoverable be no reason now likewise ney’s then there would question per case. But we are week pay not to the workman $49 by being re- no harm company suffers rеal The indeed fewer weeks. week; to advance per quired but need the added amount an suffers does, jury finding (except he he should obtain a position its impairment bargaining Changing his for a for acceleration. the amount of the case less than for 401 settle рer from week $36.75 However, judgment). per weeks to week for fewer weeks $49 position parties payments. still an acceleration of Our Compensation Act. trial Workmen’s is that the action conclusion Employers Insurance Association should directing payments to him of $49 money only that at amount of per permitted the stat- was not week Motley’s time a claimant disabili- utes as written. un- ty wage rate is to receive entitled session; now in der terms of the statute. enactments, it have if we misconstrued its im- The sections of that statute which can, course, amend statutes to more its liability upon pose clearly its reflect intent. “weekly
direct the more injured employee tion” to the of not The Judgment Forty-nine less ($49) than Dollars nor shows the date of The record that as of than Dollars Art. ($12). Twelve *5 case, trial of this and 12. benefits within weeks secs. Death accumulated; already been by tion had or are 8 to be same limits set section amount due must be like- by “weekly and the sections payment.” These entry proper judg- period discounted. of a length wise maximum of the set ment, then, wе weeks, weeks, calls calculations which at 401 weeks, trial court spe- think could best made and the periods scheduled with the assistance of counsel. there- An injuries. exception cific a remand cause to the hardship, fore order of this is made in case of entry judgment exception apply court for but that does not this opinion. compute this merely accordance with The statute case. does compensation by adding to- workman’s agree opinion we While period; weekly pay gether for a сertain appeals lump sum of civil imposes liability upon the insurance attorney’s fees, disagree we compensation rate a pay is to as to the with it acceleration And that period. for that week at a time Accordingly, to the workman. liability to this is the judgments of the civil court of liability subject. There no added reversed, trial court and the lawyer is employee’s His fees. court with is remanded to te district cause out order compensated by board or court instructions. em- “amount recovered” ployee. Art. sеc. 7d. opinion REAVLEY, Dissenting J., WALKER, J., joins. hold, compulsion of the I would should $49 REAVLEY, (dissenting). Justice period and the determined per week for pay special required that it quarrel I desirability cannot fees. award in the result either reached Court the result reached of Civil the Court agree
Appeals. WALKER, joins also J., I that the insurance dissent.