Liberty Mutual Fire Insurance Co. v. Schrull , 1995 Tex. App. LEXIS 1402 ( 1995 )

OPINION

AMIDEI, Justice.

Appellant, Liberty Mutual Fire Insurance Company [Liberty Mutual], appeals the trial court’s method of calculating the future benefit Liberty Mutual received from the settlement of the ease. In three points of error, appellant complains that the trial court erred in awarding attorney’s fees based on this erroneous calculation of future benefit. We affirm.

On September 12,1990, appellee’s husband was killed in the course and scope of his employment. Liberty Mutual paid worker’s compensation death benefits to appellee. Appellee filed suit against her husband’s employer and other parties involved in the incident. Liberty Mutual intervened in this third party law suit, seeking subrogation. A settlement was reached in the amount of $420,000. The record reflects that appellee would receive approximately $235,000 after reimbursement to Liberty Mutual for past death benefits, attorney’s fees, and expenses. The trial court held an evidentiary hearing to determine the attorney’s fee Liberty Mutual owed appellee’s attorney for obtaining the benefit accruing to Liberty Mutual from the settlement. The trial court awarded $159,-516.60 in attorney’s fees from Liberty Mutual to appellee’s attorney for the benefit accruing to Liberty Mutual as a result of the efforts of appellee’s attorney. The trial court explained that this amount represented 30% of the benefit accruing to Liberty Mutual. Thus, the trial court based the attorney’s fees on $531,722 future benefit to Liberty Mutual. On December 20, 1993, the trial court entered final judgment which relieved Liberty Mutual from its responsibility of paying workman’s compensation benefits to ap-pellee in the future.

In its first two points of error, appellant contends the trial court erred in its determination of the amount of future benefits Liberty Mutual was relieved of paying as the result of the settlement because Liberty Mutual might have to start paying benefits again in the future. Appellant also contends the award of attorney’s fees to appellee’s attorney was erroneously high because it was based on the erroneous determination of benefits accruing to Liberty Mutual. Tex.Rev.Civ.StatAnn. art. 8307 sec. 6a (Vernon 1987), provides for the award and apportionment of attorney’s fees allowable out of the insurance carrier’s subrogation recovery, taking into account the benefit accruing to the carrier as a result of each attorney’s service, the aggregate of such fees not to exceed one-third of the subrogated interest. Case law clearly includes both the amount paid as well as relief from liability for future payments in the carrier’s subrogation recovery. See Chambers v. T.E.I.A., 693 S.W.2d 648 (Tex.App.—Dallas 1985, writ ref'd n.r.e.); Ischy v. Twin City Fire Ins. Co., 718 S.W.2d 885 (Tex.App.—Austin 1986, writ ref'd n.r.e.); Vanguard Ins. Co. v. Humphrey, 729 S.W.2d 344 (Tex.App.—Houston [14th Dist.] 1987, writ ref'd n.r.e.). Here, the parties disagree over the amount of future benefits Liberty Mutual was relieved of paying due to the settlement.

As a matter of law, the judgment precludes appellee from further recovery of death benefits from Liberty Mutual. Appel-lee’s attorney secured a settlement of $420,-000 as well as the release of Liberty Mutual from any obligation to pay future death benefits to appellant. Thus, appellee’s attorney saved Liberty Mutual from having to pay the entire amount of future death benefits, which, according to the U.S. Life Tables, was $531,722. Since the future benefit accruing to Liberty Mutual as a result of the settlement was properly determined by the trial court, the attorney’s fees were properly based on this amount. Points of error one and two are overruled.

In its third point of error, appellant contends that the trial court erred in denying its motion for new trial because the award of attorney’s fees was against the great weight and preponderance of the evidence. As discussed in its first two points of error, the trial court properly awarded attorneys fees. Thus, the trial court did not err in overruling appellants’ motion for new trial. Point of error three is without merit.

We affirm the judgment of the trial court;.