American Home Assurance Co. v. McDonald

181 S.W.3d 767, 2005 Tex. App. LEXIS 9432, 2005 WL 3005634

Opinions

OPINION

BILL VANCE, Justice.

American Home Assurance Company (“American Home”) sought judicial review of a workers compensation decision¹ involving Sherrill McDonald (“McDonald”). McDonald filed a counterclaim for attorney’s fees under the Texas Labor Code. Section 408.221(c) provides for “reasonable and necessary attorney’s fees as provided by Subsection (d) incurred by the claimant 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.” Tex. Lab.Code Ann. § 408.221(c) (Vernon Supp.2004-05).

After six months of discovery, American Home non-suited its claim. McDonald then filed a Motion for Summary Judgment on the counterclaim for attorney’s fees, which the trial court granted. American Home now appeals from that judgment, arguing that McDonald does not meet the definition of “prevailing party” under the statute. To be entitled to attorney’s fees, it says, McDonald must have won a judg-menton the merits of the case'and not rely on American Home’s voluntary change in conduct' with the filing of its non-suit.

We review a trial court’s summary judgment de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003).

While this appeal has been pending, the El Paso and Amarillo Courts of Appeals have decided this issue, both holding that a claimant in McDonald’s position is a “prevailing party” entitled to attorney’s fees under section 408.221(c). Pacific Employers Ins. Co. v. Torres, 174 S.W.3d 344 (Tex.App.-El Paso, 2005, no pet. h.); American Home Assurance Co. v. Vaughn, 2005 WL 2396833, 2005 Tex.App. LEXIS 7988 (Tex.App.-Amarillo Sept. 29, 2005, no. pet.h.).² We agree with those decisions.

The trial judge properly awarded attorney’s fees to McDonald for trial and appellate expenses. We overrule the issue and affirm the judgment.

Chief Justice GRAY, concurring.

1 . Specifically, American Home sought reimbursement on a claim of overpayment of benefits to McDonald.

2 . But see Cigna Ins. Co. v. Middleton, 63 S.W.3d 901 (Tex.App.-Eastland 2001, pet. denied). The Cigna case was distinguished by both the El Paso and Amarillo Courts.