Bairon Israel Morales v. Michelin North America, Inc. ( 2011 )


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  •                                              OPINION
    No. 04-10-00704-CV
    Bairon Israel MORALES,
    Appellant
    v.
    MICHELIN NORTH AMERICA, INC.,
    Appellee
    From the 229th Judicial District Court, Jim Hogg County, Texas
    Trial Court No. CC-07-59
    Honorable Alex William Gabert, Judge Presiding
    Opinion by:       Rebecca Simmons, Justice
    Sitting:          Catherine Stone, Chief Justice
    Sandee Bryan Marion, Justice
    Rebecca Simmons, Justice
    Delivered and Filed: August 3, 2011
    AFFIRMED AS MODIFIED
    Bairon Israel Morales appeals an agreed final judgment that dismissed with prejudice all
    of Morales’s and intervenor Texas Mutual Insurance Company’s claims against defendants
    Michelin North America and Discount Tire Company of Texas. We modify the trial court’s
    judgment and reduce the defendant’s payment of $118,486.21 from the settlement proceeds to
    Texas Mutual in satisfaction of its Workers’ Compensation lien by $27,754.17, which is Texas
    04-10-00704-CV
    Mutual’s proportionate share of expenses, for a modified payment amount of $90,732.04, and
    affirm the judgment as modified.
    BACKGROUND
    Bairon Morales and Rodolfo Regalado worked for K&K Repair Service, LLC. On
    September 12, 2005, Regalado was driving a company truck, with Morales as a passenger, when
    a rear tire blew out, the vehicle rolled over, and Morales was injured. Texas Mutual Insurance
    Company, K&K’s workers’ compensation insurance carrier, paid Morales $177,729.31 in
    medical and income benefits. Morales sued the tire manufacturer, Michelin North America, Inc.;
    the tire seller, Discount Tire Company of Texas; his employer, K&K; and the driver, Regalado.
    Texas Mutual intervened and asserted its subrogation rights. Morales nonsuited K&K and
    Regalado; Michelin designated them as responsible third parties.
    In September 2009, Morales settled with the remaining defendants, Michelin and
    Discount Tire, for $375,000.00 under an agreement in which Michelin and Discount Tire
    disclaimed any liability for the accident and alleged that K&K was solely responsible. Texas
    Mutual did not participate in the negotiations.
    After Morales offered Texas Mutual $15,000.00 as payment in full of its subrogation lien,
    Texas Mutual moved for summary judgment to recover the $177,729.31 it paid Morales, less the
    statutory maximum of one-third for Morales’s attorney’s fees. The trial court granted the motion
    by (1) declaring that “Texas Mutual is entitled to first dollar reimbursement on its subrogation
    lien,” (2) limiting Morales’s attorney’s fees to “one-third of Texas Mutual’s recovery,” and (3)
    effectively denying Morales a proportionate share of expenses and a reduction in Texas Mutual’s
    recovery based on K&K’s percentage of responsibility. Later, the court signed an agreed final
    judgment that dismissed with prejudice Morales’s and Texas Mutual’s claims against Michelin
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    04-10-00704-CV
    and ordered Morales to pay Texas Mutual $118,486.21—the subrogation lien amount less one-
    third for Morales’s attorney’s fees. Morales appeals the agreed final judgment solely on the
    issues of Texas Mutual’s proportionate share of expenses and the employer’s percentage of
    responsibility.
    STANDARD OF REVIEW
    “We review the trial court’s decision to grant summary judgment de novo. . . . Statutory
    construction is a question of law, which we [also] review de novo.” Tex. Mun. Power Agency v.
    Pub. Util. Comm’n, 
    253 S.W.3d 184
    , 192 (Tex. 2007); see City of Garland v. Dallas Morning
    News, 
    22 S.W.3d 351
    , 357 (Tex. 2000).
    PROPORTIONATE SHARE OF EXPENSES
    In his first issue, Morales asserts that Texas Labor Code section 417.003(a) requires the
    trial court to award not only his attorney a reasonable fee but also a proportionate share of the
    litigation expenses. Texas Mutual agreed to pay Morales’s attorney the statutory maximum
    attorney’s fee, but denies that it owes Morales’s attorney a proportionate share of expenses
    because section 417.003(c), not (a), applies and subsection (c) does not require the court to
    apportion litigation expenses.
    A. Applicable Statute
    Chapter 417 of the Texas Labor Code addresses third-party liability. Section 417.003
    controls the award and apportionment of attorneys’ fees for representation of an insurance
    carrier’s interest in a claim against a third-party. It states:
    (a)     An insurance carrier whose interest is not actively represented by an
    attorney in a third-party action shall pay a fee to an attorney representing the
    claimant in the amount agreed on between the attorney and the insurance carrier.
    In the absence of an agreement, the court shall award to the attorney payable out
    of the insurance carrier’s recovery:
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    (1) a reasonable fee for recovery of the insurance carrier’s interest that
    may not exceed one-third of the insurance carrier’s recovery; and
    (2) a proportionate share of expenses.
    ....
    (c)     If an attorney actively representing the insurance carrier’s interest actively
    participates in obtaining a recovery, the court shall award and apportion between
    the claimant’s and the insurance carrier’s attorneys a fee payable out of the
    insurance carrier’s subrogation recovery. In apportioning the award, the court
    shall consider the benefit accruing to the insurance carrier as a result of each
    attorney’s service. The total attorney’s fees may not exceed one-third of the
    insurance carrier’s recovery.
    TEX. LAB. CODE ANN. § 417.003 (West 2006).
    B. Active Representation in a Third-Party Action
    1. Active Representation
    Subsection (a) applies to “[a]n insurance carrier whose interest is not actively represented
    by an attorney in a third-party action.” TEX. LAB. CODE ANN. § 417.003(a) (West 2006); see
    Hartford Accident & Indem. Co. v. Buckland, 
    882 S.W.2d 440
    , 446–47 (Tex. App.—Dallas
    1994, writ denied) (applying an earlier version of the statute). More specifically, subsection (a)’s
    applicability depends on what constitutes active representation in a third-party action. “Active
    representation requires more than filing pleadings asserting the carrier’s subrogation interest.”
    Hodges v. Mack Trucks Inc., 
    474 F.3d 188
    , 204 (5th Cir. 2006) (citing Hartford Ins. Co. v.
    Branton & Mendelsohn, Inc., 
    670 S.W.2d 699
    , 702 (Tex. App.—San Antonio 1984, no writ)). A
    carrier’s attorney actively represents its client when the attorney takes steps to participate in pre-
    trial discovery and actively prepare for trial against the third-party defendant. See Rowan v.
    Zurich Am. Ins. Co., 
    499 F. Supp. 2d 704
    , 707 (E.D. Tex. 2007); Hartford Ins. 
    Co., 670 S.W.2d at 701
    –02; cf. 
    Buckland, 882 S.W.2d at 447
    (“An attorney ‘actively represents’ and ‘actively
    participates in obtaining a recovery’ when the attorney takes steps, adequate when measured by
    the difficulty of the case, toward prosecuting the claim [against the third-party defendant].”
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    04-10-00704-CV
    (quoting 
    Branton, 670 S.W.2d at 702
    )); City of Austin v. Janowski, 
    825 S.W.2d 786
    , 789 (Tex.
    App.—Austin 1992, no writ). Such steps may include serving discovery requests, preparing and
    delivering discovery products, deposing witnesses, hiring experts, participating in hearings,
    preparing the charge, negotiating a settlement, and the like. See 
    Buckland, 882 S.W.2d at 447
    (noting the carrier “did not generate or send any written discovery or take any depositions” and
    “did not participate in the hearings”); 
    Janowski, 825 S.W.2d at 789
    ; 
    Branton, 670 S.W.2d at 702
    .
    Intervention alone does not establish active representation as a matter of law.                          See
    
    Janowski, 825 S.W.2d at 789
    –90 (agreeing that the employer was not actively represented even
    though it filed a petition in intervention and attended a deposition); 
    Branton, 670 S.W.2d at 702
    (approving the trial court’s determination that the carrier was not actively represented although
    its attorney had filed an original and two amended petitions in intervention); Univ. of Tex. Sys. v.
    Melchor, 
    696 S.W.2d 406
    , 409 (Tex. App.—Houston [14th Dist.] 1985, no writ) (“Under the
    circumstances of contested liability, the subrogation attorney does not fulfill his duty of actively
    participating by simply filing the necessary papers for intervention and reviewing pleadings.”).
    2. Apportioning Attorney’s Fee, Expenses
    In cases where subsection (c) applies, the court takes a maximum of one-third of the
    carrier’s recovery and apportions and awards it as attorneys’ fees according to “the benefit
    accruing to the insurance carrier as a result of each attorney’s service.” TEX. LAB. CODE ANN.
    § 417.003(c) (West 2006); see 
    Buckland, 882 S.W.2d at 447
    . Subsection (c) does not address
    apportioning expenses. 1 However, if subsection (a) applies and the claimant’s attorney and the
    carrier do not agree on the claimant’s attorney’s fee, the court has a mandatory duty to award to
    1
    See Caesar v. Bohacek, 
    176 S.W.3d 282
    , 285 n.3 (Tex. App.—Houston [1st Dist.] 2004, no pet.) (“[S]ubsection (c)
    does not provide for a claimant to recover litigation expenses from an insurance carrier.”). The legislature may have
    assumed that if the carrier was “actively participat[ing] in obtaining a recovery,” the carrier and claimant would each
    bear their own expenses.
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    04-10-00704-CV
    the claimant’s attorney both a reasonable attorney’s fee and “a proportionate share of expenses.”
    TEX. LAB. CODE ANN. § 417.003(a) (West 2006); accord 
    Buckland, 882 S.W.2d at 447
    .
    C. Texas Mutual’s Representation
    Morales asserts that because Texas Mutual was not actively represented in his third-party
    action, subsection (a) applies, and his attorney should get a reasonable fee and a proportionate
    share of litigation expenses. In response, Texas Mutual asserts that subsection (c) should apply
    because Morales resisted paying first money as he was required to do. The record shows that
    Texas Mutual filed an original and two amended petitions in intervention, but does not show that
    Texas Mutual served any written discovery requests, conducted any depositions, hired any
    experts, participated in the mediated settlement negotiations, 2 or shared in the expenses of
    Morales’s suit against the third-party defendants. Texas Mutual concedes that intervention alone
    does not constitute active representation and admits that it “never contended its attorneys
    participated in obtaining the settlement from the third-party defendants—only that its attorneys
    actively represented Texas Mutual’s interest in obtaining the subrogation recovery.”
    Subsection (c) controls apportioning attorneys’ fees between the carrier and the claimant
    when both are actively represented and both are actively participating in obtaining a recovery
    from the third-party defendant. See Tex. Dep’t of Transp. v. Wilson, 
    980 S.W.2d 939
    , 942 (Tex.
    App.—Fort Worth 1998, pet. denied). Subsection (c) does not apply to a contest between the
    claimant and the carrier. If a claimant improperly resists paying the carrier its subrogation
    interest, the carrier may seek to recover its attorney’s fees in a declaratory judgment action. See
    Howell v. Tex. Workers’ Comp. Comm’n, 
    143 S.W.3d 416
    , 443 (Tex. App.—Austin 2004, pet.
    denied); Univ. of Tex. Health Science Ctr. at San Antonio v. Mata & Bordini, Inc., 
    2 S.W.3d 312
    ,
    2
    Texas Mutual asserts that it had less than one day’s notice of the mediation. The record also shows Texas Mutual
    filed a motion for summary judgment against Morales and a reply to Morales’s response to its motion for summary
    judgment.
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    04-10-00704-CV
    319 (Tex. App.—San Antonio 1999, pet. denied).                     In this case, Texas Mutual sought a
    declaratory judgment against Morales for its attorney’s fees.
    However, the relevant activities to determine active representation are the steps Texas
    Mutual took in its joint action with Morales against the third-party defendants, not the steps in its
    internecine conflict with Morales.             It is undisputed that Texas Mutual intervened, but
    intervention alone is not, as a matter of law, active representation. See Hartford Accident &
    Indem. Co. v. Buckland, 
    882 S.W.2d 440
    , 447 (Tex. App.—Dallas 1994, writ denied); Hartford
    Ins. Co. v. Branton & Mendelsohn, Inc., 
    670 S.W.2d 699
    , 701–02 (Tex. App.—San Antonio
    1984, no writ). The only other steps Texas Mutual took were not directed towards the third-party
    defendants, but were steps to secure payment of its subrogation lien from Morales. Such steps
    do not satisfy subsection (c)’s requirement for the carrier to “actively participate[] in obtaining a
    recovery” from the third-party defendant. See TEX. LAB. CODE ANN. § 417.003(c) (West 2006).
    D. Proportionate Share of Expenses
    In its summary judgment pleadings, Texas Mutual asked the trial court to find that
    section 417.003(c) applies, but if the court found that section 417.003(a) applies, asked the court
    to determine its proportionate share of expenses to be $27,754.17. The trial court’s May 7, 2010
    order granting Texas Mutual’s motion for summary judgment found that section 417.003(c)
    applies and recognized Texas Mutual’s subrogation lien in the amount of $177,729.13. 3 In the
    agreed final judgment, the trial court ordered Morales to pay Texas Mutual $118,486.21 in
    satisfaction of its subrogation lien. The ordered amount appears to be the entire subrogation lien
    less one-third for an attorney’s fee without any reduction for a proportionate share of expenses.
    3
    Morales’s attorneys claimed $59,051.44 in expenses. Texas Mutual calculated its proportionate share by dividing
    its subrogation lien of $177,729.31 by Morales’s recovery of $375,000.00 and rounding to 47.00%. It calculated its
    47% share of expenses as $27,754.17. Assuming section 417.003(a) applies, neither party disputes $27,754.17 as
    Texas Mutual’s proportionate share of expenses.
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    04-10-00704-CV
    Because Texas Mutual was not actively represented in the third-party action, the trial court erred
    in applying section 417.003(c) rather than 417.003(a). See TEX. LAB. CODE ANN. § 417.003(c)
    (West 2006); 
    Branton, 670 S.W.2d at 702
    –03; see also Caesar v. Bohacek, 
    176 S.W.3d 282
    , 285
    (Tex. App.—Houston [1st Dist.] 2004, no pet.) (noting the legislature’s intent in enacting section
    417.003 was to keep carriers from free-riding on claimant’s case). Under section 417.003(a), the
    court was required to award Morales a proportionate share of expenses. See TEX. LAB. CODE
    ANN. § 417.003(a); 
    Buckland, 882 S.W.2d at 447
    . We sustain Morales’s first issue.
    DETERMINATION OF PERCENTAGE OF RESPONSIBILITY
    In his second issue, Morales asserts he is entitled to have the fact-finder determine his
    employer’s percentage of responsibility for his injuries so the carrier’s recovery may be reduced
    accordingly.
    A. Background
    After Morales was injured, he sued Michelin, Discount Tire, his employer, K&K, and the
    driver, Regalado. Each defendant answered and Texas Mutual intervened. Michelin moved to
    designate K&K and Regalado as responsible third parties and noted that Morales had nonsuited
    them.    Subsequently, Morales settled with Michelin and Discount Tire.           The settlement
    agreement dismissed with prejudice all of Morales’s and Texas Mutual’s claims against Michelin
    and Discount Tire. After the settlement, Texas Mutual filed a second amended petition in
    intervention. Texas Mutual sought a declaratory judgment that it was “entitled to first dollar
    reimbursement of its subrogation claim,” arguing that section 417.003(c) applied, and thus its
    subrogation interest could not be reduced based on K&K’s alleged negligence, and sought
    reimbursement of its attorney’s fees. In response, Morales asserted that he is entitled to reduce
    his reimbursement of Texas Mutual’s subrogation interest by a proportionate share of expenses
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    04-10-00704-CV
    and by K&K’s percentage of responsibility for his injuries. On appeal, Morales asserts that the
    trial court abused its discretion because it did not allow the “trier of fact” to determine the
    employer’s percentage of responsibility.
    B. Controlling Law
    An insurance carrier’s subrogation interest may be reduced by an amount “based on the
    [employer’s] percentage of responsibility [as] determined by the trier of fact under Section
    33.003, Civil Practice and Remedies Code.” See TEX. LAB. CODE ANN. § 417.001(b) (West
    2006). The fact-finder determines the percentage of responsibility for each claimant, defendant,
    settling person, and properly designated responsible third-party. See 
    id. (citing TEX.
    CIV. PRAC.
    & REM. CODE ANN. § 33.003 (West 2008)). However, Texas courts may not issue advisory
    opinions.   Tex. Ass’n of Bus. v. Tex. Air Control Bd., 
    852 S.W.2d 440
    , 444 (Tex. 1993)
    (construing the Texas constitution’s “separation of powers article to prohibit courts from issuing
    advisory opinions”). “The distinctive feature of an advisory opinion is that it decides an abstract
    question of law without binding the parties.” Id.; see Robinson v. Alief Indep. Sch. Dist., 
    298 S.W.3d 321
    , 325 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) (“A case becomes moot
    when: (1) it appears that a party seeks to obtain a judgment upon some controversy, when in
    reality none exists; or (2) a party seeks a judgment upon some matter which cannot have any
    practical legal effect upon a then existing controversy.”); Lavely v. Heafner, 
    976 S.W.2d 896
    ,
    897 (Tex. App.—Houston [14th Dist.] 1998, no pet.) (“Where a live controversy ceases to exist
    between the parties, any opinion a court might render would be strictly advisory.”). “[A]
    decision that does not bind the parties is, by definition, an advisory opinion prohibited by Texas
    law.” State Bar of Tex. v. Gomez, 
    891 S.W.2d 243
    , 245 (Tex. 1994) (citing Tex. Ass’n of 
    Bus., 852 S.W.2d at 444
    ).
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    04-10-00704-CV
    C. Analysis
    Morales initially sued four defendants. Sometime before October 2007, he nonsuited two
    defendants, K&K and Regalado. Later, he settled with the two remaining defendants, Michelin
    and Discount Tire. The parties’ mediated settlement agreement states that the parties “desire to
    compromise and settle all claims and causes of action of any kind whatsoever which the parties
    have or may have” stemming from the accident in which Morales was injured. The agreement
    expressly releases Michelin and Discount Tire and dismisses with prejudice Morales’s and Texas
    Mutual’s claims against the defendants. Morales does not dispute that he nonsuited K&K and
    Regalado or that he settled with Michelin and Discount Tire.          Further, the record clearly
    establishes that Morales settled with the two remaining defendants before he obtained a
    determination of the employer’s percentage of responsibility for his injuries.
    When the trial court decided Texas Mutual’s motion for summary judgment, Morales had
    already nonsuited or settled with all of the defendants. See generally TEX. CIV. PRAC. & REM.
    CODE ANN. § 154.071 (West 2011) (describing the effect of a written settlement agreement). As
    the Agreed Final Judgment states, “the matters in controversy between Plaintiff and Defendant
    had been compromised and settled . . . [and] all releases had been executed between Plaintiff,
    Defendant, and Intervenor.” See Mem’l Med. Ctr. of E. Tex. v. Keszler, 
    943 S.W.2d 433
    , 435
    (Tex. 1997) (authorizing post-injury releases of even gross negligence). Once Morales settled all
    of his claims with the only remaining defendants, there was no longer a live controversy between
    Morales and the defendants on the matter of his injuries. See 
    Robinson, 298 S.W.3d at 325
    (mootness); 
    Lavely, 976 S.W.2d at 897
    (advisory opinions). The trial court could not have
    properly rendered a decision on the employer’s percentage of responsibility because, without any
    remaining defendants, its decision would not be binding on the parties. See Robinson, 298
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    04-10-00704-CV
    S.W.3d at 325; 
    Lavely, 976 S.W.2d at 897
    . Thus, the trial court did not err by effectively
    denying Morales’s request for a determination of his employer’s percentage of responsibility.
    We overrule Morales’s second issue.
    CONCLUSION
    Because Texas Mutual was not actively represented in Morales’s claims against the
    defendants he alleged were responsible for his injuries, section 417.003(a) is the applicable
    provision, and the trial court erred when it applied section 417.003(c) and failed to reduce Texas
    Mutual’s first money payment by the amount of its proportionate share of expenses. See TEX.
    LAB. CODE ANN. § 417.003 (West 2006); Hartford Ins. Co. v. Branton & Mendelsohn, Inc., 
    670 S.W.2d 699
    , 701–02 (Tex. App.—San Antonio 1984, no writ). Therefore, we modify the trial
    court’s judgment and reduce the defendant’s payment of $118,486.21 of the settlement proceeds
    to Texas Mutual in satisfaction of its Workers’ Compensation lien by $27,754.17, which is Texas
    Mutual’s proportionate share of expenses, for a modified payment amount of $90,732.04. See
    TEX. R. APP. P. 43.2(b). Because Morales nonsuited or settled with all the defendants before he
    obtained a determination of his employer’s percentage of responsibility for his injuries, we deny
    his prayer to remand this case for such a determination. We affirm the judgment as modified.
    Rebecca Simmons, Justice
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