law-workers-comp-attorneys-fees | impairment-rating-dispute process | impairment-rating of injured worker
under worker's comp act | attorney's fees award under statute or contract |
HOUSTON CASE LAW ON
ATTORNEY'S FEES IN WORKER'S COMPENSATION CASE (JUDICIAL
REVIEW SUIT)
Attorney's Fees
In its third issue, Zurich contends the trial court erred in ordering it to pay Samudio's attorney's fees. Zurich
asserts that Samudio "is not entitled to recover attorney's fees in this case because he has not proved that
he is a prevailing party under the act."
The availability of attorney's fees under a particular statute is a question of law for the court. Holland v.
Wal-Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex. 1999). Therefore, we review this issue de novo. El Paso
Natural Gas Co. v. Minco Oil & Gas, Inc., 8 S.W.3d 309, 312 (Tex. 1999). A trial court's dismissal for lack of
subject matter jurisdiction does not prevent the concurrent award of attorney's fees under a mandatory
award provision. Nauslar v. Coors Brewing Co., 170 S.W.3d 242, 257 (Tex. App.--Dallas 2005, no pet.).
Zurich's lawsuit is the appeal of a decision by an appeals panel of the Division, which is authorized by
Chapter 410, Subchapter G of the Texas Labor Code. Tex. Lab. Code. Ann. §§ 410.301-.308 (Vernon
2006). The Texas Workers' Compensation Act provides that in a suit for "judicial review under Subchapter
G, Chapter 410, of a final decision of the appeals panel regarding compensability . . . or the amount of,
income . . . benefits," an insurance carrier "is liable for reasonable and necessary attorney's fees . . . as a
result of the insurance carrier's appeal if the claimant prevails on an issue on which judicial review is
sought by the insurance carrier . . . ." Id. § 408.221(c) (Vernon 2006). Otherwise, the claimant's attorney's
fees are to be paid from the claimant's recovery. Id. § 408.221(b) (Vernon 2006). In either circumstance,
"[a]n attorney's fee . . . for representing a claimant before the . . . court under this subtitle must be
approved by the . . . court." Id. § 408.221(a).
The Texas Workers' Compensation Act does not define "prevailing party." See Tex. Lab. Code. Ann. §§
401.001-506.002 (Vernon 2006). Cases construing "prevailing party" under Civil Practice and Remedies
Code chapter 38 and under Texas Rule of Civil Procedure 131 have consistently applied the same
definition and analysis to the phrase. A prevailing party is one who is vindicated by the trial court's
judgment. Flagship Hotel, Ltd. v. City of Galveston, 117 S.W.3d 552, 564-65 (Tex. App.--Texarkana 2003,
pet. denied) (construing Chapter 38); Scholl v. Home Owners Warranty Corp., 810 S.W.2d 464, 468-69
(Tex. App.--San Antonio 1991, no writ) (construing Rule 131); see also Hagberg v. City of Pasadena, 224
S.W.3d 477, 484-85 (Tex. App.--Houston [1st Dist.] 2007, no pet.) (claimant is prevailing party entitled to
attorney's fees where claimant began with final Division decision in his favor and after lawsuit is filed,
parties are put back in same position as before carrier filed judicial review).
Section 408.147(c) requires that the claimant prevail "on any disputed issue," and § 408.221(c) requires
that the claimant "prevail on an issue on which judicial review is sought by the insurance carrier." See Tex.
Lab. Code Ann. §§ 408.147(c), 408.221(c) (Vernon 2006). Here, Samudio sought and obtained dismissal
of Zurich's claim. When the trial court granted Samudio's plea to the jurisdiction, Zurich's claim was
disposed of and Samudio was in the same position he would be in if he had prevailed after a trial on the
matter. The dismissal of Zurich's claim made Samudio a prevailing party for the purposes of §§ 408.147
and 408.221. See Ins. Co. of State of Pa. v. Orosco, 170 S.W.3d 129, 134 (Tex. App.--San Antonio 2005,
no pet.) (holding that claimant who sought and obtained dismissal of carrier's judicial review challenge of
Division decision through plea to jurisdiction, was prevailing party for purposes of § 408.147); see also
Weng Enter., Inc. v. Embassy World Travel, Inc., 837 S.W.2d 217, 222-23 (Tex. App.--Houston [1st Dist.]
1992, no writ) (term "prevailing party" refers to party who successfully prosecutes action or successfully
defends against action on main issue). We hold the trial court properly awarded attorney's fees to
Samudio, the prevailing party in this appeal from the Division's decision.
We overrule Zurich's third issue.
American Zurich Ins. Co. v. Samudio (Tex.App.- Houston [1st Dist.] Feb. 11, 2010)(Alcala)
(carrier loses workers compensation appeal over worker's impairment rating, plea to the jurisdiction in
judicial review suit affirmed, attorney fees award for prevailing claimant workers comp appeal)
AFFIRM TC JUDGMENT: Opinion by Justice Alcala
Before Chief Justice Radack, Justices Alcala and Higley
01-08-00233-CV American Zurich Insurance Company v. Daniel Samudio
Appeal from 127th District Court of Harris County
Trial Court Judge: Hon. Sharolyn P. Wood
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