Foster v. Home Indemnity Co.

757 S.W.2d 481, 1988 Tex. App. LEXIS 2497, 1988 WL 104921

• Court: Court of Appeals of Texas
• Decided: August 26, 1988
• Docket: No. 05-88-00003-CV
• Status: Published

Opinions

KINKEADE, Justice.

Patricia A. Foster appeals a take nothing judgment rendered in favor of the Home Indemnity Company. In two points of error, Foster contends that the trial court erred in granting summary judgment since there was an issue of fact as to: 1) whether due diligence was used to secure service of process; and 2) the amount of attorney’s fees. We hold that point of error one is dispositive of this cause; therefore, we reverse the judgment of the trial court and remand for a new trial.

Foster instituted this suit to mature an award by the Industrial Accident Board (IAB) dated February 6, 1984. The IAB ruling is binding if not appealed within twenty days. Home Indemnity did timely file a notice of appeal with the IAB and instituted suit in the district court. On December 12,1984, that suit was dismissed for want of prosecution.

Section 5 of Article 8307 Texas Revised Civil Statutes states in part:

If any party to such final ruling and decision of the Board, after having given notice as above provided, fails within twenty (20) days to institute and “prosecute a suit to set the same aside, then said final ruling and decision shall be binding upon all parties thereto; ... (Emphasis added).

Article 8307, § 5 requires that the suit to set aside the award be both instituted and prosecuted within the twenty-day period. It is well settled in Texas that this dual requirement is satisfied when a claimant files a petition within twenty days with a bona fide intent that citation shall issue and be served at once or that a waiver of citation will be obtained and filed at once. Herrera v. Texas Employers Insurance Association, 653 S.W.2d 359, 360 (Tex.Civ.App.-San Antonio 1983, no writ).

In 1986 Foster filed the present suit attempting to mature the 1984 IAB ruling. Home Indemnity filed a motion for summary judgment claiming the IAB ruling was void and that there are no fact issues. Foster claims that the dismissed suit has no effect on the IAB ruling because Home Indemnity did not intend to prosecute a suit as evidenced by its lack of due diligence in failing to obtain service of process on her.

Home Indemnity contends it attempted service of process at an address given to it by Foster’s previous employer. When that failed, it allegedly employed a private investigator who could not locate Foster. Foster contends that her address subsequent to December 1983 but at all times pertinent to this lawsuit was 818 Hall Street, Seagoville, Texas and that both her previous employer and Home Indemnity had knowledge of the correct address. Further, one of the exhibits contained in the IAB file on Foster’s case which is attached to Home Indemnity’s motion for summary judgment contains the correct address. It is undisputed, however, that Home Indemnity did not attempt service on Foster at the Hall Street address.

We recognize that the court in Wilborn v. Texas Employers' Insurance Ass’n, 558 S.W.2d 65 (Tex.Civ.App.-Amarillo 1977, writ ref’d n.r.e.), held that the statute was satisfied when a citation for service on Wilbom was issued on the same day as suit was filed to set aside the IAB’s award and returned by the sheriff three days later with the notation, “Left Lubbock about two months ago. Destination unknown.” Id., 558 S.W.2d at 68. However, Wilbom is distinguishable from the present case because additional facts support the Wilbom court’s holding: Wilson filed suit to appeal an award by the IAB on a separate claim against Employers’. Employers’ arranged with Wilborn's attorneys to take his deposition, but were informed by Wilborn’s attorneys that they did not know his whereabouts. The deposition was postponed. Subsequently, Wilborn’s attorneys served notice on Employers’ to take Wilborn’s deposition. Employers’ attorneys appeared for the deposition, but neither Wilborn, nor his attorneys appeared. In the present case, Foster’s attorney stated in his affidavit that he has known Foster’s address at all times pertinent to this suit, but neither Employers’, nor Employers’ attorneys have ever contacted him to inquire of Foster’s whereabouts. Additionally, Foster states in her affidavit that in 1984, her employer contacted her two times at her Hall Street address to pay her for her pension plan benefits and for the stock she owned. The Hall Street address was also contained on a document in the IAB file on her case.

The facts in Williams v. Texas Employers’ Insurance Ass’n, 653 S.W.2d 377 (Tex.App.-Fort Worth 1983, writ ref’d n.r.e.), are also distinguishable. On March 9, 1982, the IAB rendered its final award for Williams’ on-the-job injury. Employers’ timely filed its original suit to set aside the award and requested that citation be issued for service on Williams. The citation was returned unserved six days later on March 29, 1982. On July 30, 1982, Williams filed suit to mature the IAB award. Employers’ filed a cause of action to set aside the award and successfully served Williams. Summary judgment was granted to Employers’ against Williams’ action to mature the award. Williams complained because “citation was not promptly served on him.” The Williams court pointed out that Employers’ had requested that Williams be served at a specific Forth Worth address and that Williams’ affidavit states that he lived at that same address during the months of March and April 1982. Employers’ had requested that Williams be served at his proper address, but the sheriff was unsuccessful. In the present case, service was never attempted at Foster’s proper address, even though it is is contained on a document within the IAB file on her case and her employer knew of and had contacted Foster at her proper address.

We hold, based on the facts in the present cause of action that there is sufficient evidence to raise a fact issue as to Home Indemnity’s intent. We, therefore, sustain Foster’s first point of error and reverse the judgment of the trial court and remand for a new trial.

STEPHENS, J., dissents with opinion.