Texas Employers' Insurance Ass'n v. Marsh , 1978 Tex. App. LEXIS 3327 ( 1978 )

PRESLAR, Chief Justice,

dissenting.

The writer agrees with the result reached in this case, but is unable to agree with a reason for it as set out in the opening statement of the majority opinion that “Under the decision in Select Insurance Company v. Boucher, 561 S.W.2d 474 (Tex.1978), a compensation carrier is not entitled to submit special issues as to partial incapacity as inferential rebuttal issues * That statement should not form a basis for deciding this case, nor should it stand as a blanket proposition of law applicable to all cases. I do not read Select as abolishing the issues of partial incapacity in every case in which there are issues of total incapacity. I read Select as being limited to the facts and situation of that case. The Court so states:

“ * * * Under the circumstances of the instant case, the issues relating to partial incapacity were inferential rebuttal issues which are prohibited by Rule 277. * * *” (Emphasis added)

At another point in its opinion, the Court was careful to note the • limitation of its holding when it said:

“We hold, under the posture of the instant case, that the defensive issue of partial incapacity is an inferential rebuttal issue * * (Emphasis added)

I would not decide this case on the basis that the partial disability issue should not have been submitted in the first place. It was not pled by the insurer, but it was apparently tried by consent, for the issue was submitted without objection. Aside from all the philosophical discussions of whether issues are “inferential rebuttal” or “defensive,” a trial is a search for the truth. If the truth is that the disability is partial, there should be a method of determining that, even though there is a claim of total incapacity. The all-or-nothing approach would be bad public policy — bad for the workman who is in fact partially disabled. Insurers should be encouraged to admit partial incapacity where it exists and thus plead it and get a determination of it by the jury. As noted by the majority, the Supreme Court has not overruled cases which held that “partial incapacity” is an affirmative defense to “total incapacity.” I do not read the Select case as a holding that the claimant can deprive the insurer of his defense that the disability is only partial by simply pleading for total disability. I would not apply the holding in Select to this case.