Butler v. Federated Mutual Insurance Co.

871 S.W.2d 950, 1994 Tex. App. LEXIS 500, 1994 WL 68762
CourtCourt of Appeals of Texas
DecidedMarch 9, 1994
DocketNo. 2-93-124-CV
StatusPublished
Cited by1 cases

This text of 871 S.W.2d 950 (Butler v. Federated Mutual Insurance Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Butler v. Federated Mutual Insurance Co., 871 S.W.2d 950, 1994 Tex. App. LEXIS 500, 1994 WL 68762 (Tex. Ct. App. 1994).

Opinion

OPINION

FARRIS, Justice.

This is a workers’ compensation case. Appellant, Mary Alice Butler, appealed the Texas Workers’ Compensation Commission’s Award to the district court. The carrier, Federated Mutual Insurance Company (Federated), moved for summary judgment on four grounds and the district court granted the motion on two of them.1

Butler appeals, contending there were fact issues precluding summary judgment. Fed[952]*952erated contends the summary judgment should be affirmed on the grounds stated in the judgment or on one of the other grounds it raised in its motion. We sustain Butler’s points of error because there were issues of fact concerning whether she gave timely notice, and whether she filed her claim in a timely manner. At the same time, we deny Federated’s request that we affirm the summary judgment on one of its remaining grounds because we do not consider alternate grounds when the trial court specifically rules on a different ground.

The judgment is reversed and the case is remanded for trial.

Federated argues the summary judgment should be summarily affirmed on the grounds stated in the trial court’s judgment because Butler did not bring forward a complete record of the proceeding below. Federated relies on DeSantis v. Wackenhut Corp., 793 S.W.2d 670 (Tex.1990), cert. denied, 498 U.S. 1048, 111 S.Ct. 756, 112 L.Ed.2d 775 (1991); however, it is distinguishable from the current case.

In DeSantis appellee sued appellants to enforce a noncompetition agreement and moved for summary judgment. At the hearing, appellants presented no evidence showing the agreement was unreasonable, but appellee introduced an affidavit to support its position. Id. at 689. Consequently, the trial court granted the motion finding the noncom-petition agreement was reasonable. Id. On appeal, appellants did not bring forward the affidavit, so the appellate court could not determine whether appellee met its burden. Id. Because appellants failed to bring forward a complete record and produced no proof to support its position and controvert appellees’ position, the court of appeals presumed the omitted documents supported the trial court’s judgment. Id.

Because Butler controverted the evidence presented by Federated and presented such controverting proof to this court, the substance of the omitted evidence is immaterial. Butler is entitled to reversal because she established a material fact issue exists precluding summary judgment.

The history of Butler’s illness was undisputed. Butler suffered degenerative arthritis in both knees as early as 1985. By 1989, her illness had degenerated to acute arthritis. Her arthritis continued to worsen and by February 1991, she had undergone two surgeries to replace both kneecaps. Despite the surgeries, she continued to suffer. In July 1991, her doctor told her that her illness might have been caused by her employment because her job required her to stand for long hours on a concrete floor. Butler filed her initial workers’ compensation claim with the Commission on July 31, 1991, and she gave notice to Federated on August 6, 1991.

In a summary judgment case, the issue on appeal is whether the movant met his burden for summary judgment by establishing that there exists no genuine issue of material fact and that he is entitled to judgment as a matter of law. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979); Tex.R.Civ.P. 166a. The burden of proof is on the movant, and all doubts as to the existence of a genuine issue as to a material fact are resolved against him. Great American R. Ins. Co. v. San Antonio Pl. Sup. Co., 391 S.W.2d 41, 47 (Tex.1965). Therefore, we must view the evidence in the light most favorable to the nonmovant. See id. In deciding whether there is a material fact issue precluding summary judgment, all conflicts in the evidence will be disregarded and the evidence favorable to the nonmovant will be accepted as true. Montgomery v. Kennedy, 669 S.W.2d 309, 311 (Tex.1984). Every reasonable inference from the evidence must be indulged in favor of the nonmovant and any doubts resolved in his favor. Id. Evidence which favors the movant’s position will not be con[953]*953sidered unless it is uncontroverted. Great American, 391 S.W.2d at 47.

Given the standard of review in summary judgment cases and the basis for the trial court’s ruling in this case, summary judgment was proper if Federated proved Butler failed to fulfill the notice and filing requirements of article 8307, section 4a of the Workers’ Compensation Act. Tex.Rev. Civ. StatAnn. art. 8307, § 4a (Vernon Suppi) Pamph.1994).2 Under article 8307, section 4a:

Unless the Association or subscriber have notice of the injury, no proceeding for compensation for injury under this law shall be maintained unless a notice of the injury shall have been given to the Association or subscriber within thirty (30) days after the happening of an injury or the first distinct manifestation of an occupational disease .... For good cause the Board may, in meritorious cases, waive the strict compliance with the foregoing limitations as to notice....

Id. Consequently, Federated had to establish that Butler failed to give notice within thirty days of the first distinct manifestation of the disease and that no good cause existed for the delay.

First distinct manifestation means the first time the claimant knew, or should have known, that he had an occupational disease. Travelers Ins. Co. v. Miller, 390 S.W.2d 284, 288 (Tex.Civ.App. — El Paso 1965, no writ) (emphasis added). The standard means that the limitation for notice begins to run when the claimant, as a reasonable man or woman, recognizes the nature, seriousness, and the work-related nature of the disease. Commercial Ins. Co. v. Smith, 596 S.W.2d 661, 665 (Tex.Civ.App. — Fort Worth 1980, writ ref'd n.r.e.).

If a person does not believe that his or her injury is severe or is mistaken as to its cause, good cause can be established for the failure to timely file. Cigna Ins. Co. v. Evans, 847 S.W.2d 417, 420 (Tex.App. — Texarkana 1993, writ denied) (emphasis added). Good cause has been defined as existing when a person has prosecuted his claim with the diligence an ordinarily prudent person would have used under the same or similar circumstances. Id. The totality of the claimant’s conduct must be considered in determining whether he or she acted with such ordinary prudence. Moronko v. Consolidated Mutual Ins. Co., 435 S.W.2d 846

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Anderson v. Hood County
958 S.W.2d 448 (Court of Appeals of Texas, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
871 S.W.2d 950, 1994 Tex. App. LEXIS 500, 1994 WL 68762, Counsel Stack Legal Research, https://law.counselstack.com/opinion/butler-v-federated-mutual-insurance-co-texapp-1994.