ACCEPTED 03-14-00457-CV 3763130 THIRD COURT OF APPEALS AUSTIN, TEXAS 1/14/2015 11:15:32 AM JEFFREY D. KYLE CLERK
No. 03-14-00457-CV FILED IN 3rd COURT OF APPEALS IN THE THIRD COURT OF APPEALS AUSTIN, TEXAS 1/14/2015 11:15:32 AM AT AUSTIN, TEXAS JEFFREY D. KYLE Clerk
LINDA BALDWIN, Appellant
V.
ZURICH AMERICAN INSURANCE COMPANY, Appellee
Court of Appeals Number: 03-14-00457-CV Trial Court Number: No. D-1-GN-13-001281
APPELLEE’S BRIEF
Jessica M. MacCarty State Bar No. 24077822 jmm@fol.com Robert D. Stokes State Bar No. 19274100 Lynette L. Phillips State Bar No. 15937770 Flahive, Ogden & Latson P.O. Box 201329 Austin, Texas 78720 Telephone: (512) 435-2150 Facsimile: (512) 241-3305
APPELLEE REQUESTS ORAL ARGUMENT No. 03-14-00457-CV
IN THE THIRD COURT OF APPEALS AT AUSTIN, TEXAS
Court of Appeals Number: 03-14-00457-CV Trial Court Number: No. D-1-GN-13-001281
Jessica M. MacCarty State Bar No. 24077822 Robert D. Stokes State Bar No. 19274100 Lynette L. Phillips State Bar No. 15937770 Flahive, Ogden & Latson P.O. Box 201329 Austin, Texas 78720 Telephone: (512) 435-2150 Facsimile: (512) 241-3305
Baldwin v. Zurich Am. Ins. Co. ii No. 03-14-00457-CV Brief of the Appellee IDENTITY OF PARTIES AND COUNSEL
Linda Baldwin Zurich American Insurance 10151 Dorrell Lane #1164 Company Las Vegas, Nevada 89166 Corporation Service Company Appellant, Pro Se 211 East 7th Street, Suite 620 Austin, Texas 78701 Appellee
Hon. Gisela Triana Jessica M. MacCarty 200th District Court Flahive, Ogden & Latson 1000 Guadalupe Street, 5th Floor P.O. Drawer 201329 Austin, TX 78701 Austin, Texas 78720 Trial Court Appellate Counsel for Appellee
Robert D. Stokes Flahive, Ogden & Latson P.O. Drawer 201329 Austin, Texas 78720 Appellate Counsel for Appellee
Lynette Phillips Flahive, Ogden & Latson P.O. Drawer 201329 Austin, Texas 78720 Trial and Appellate Counsel for Appellee
Baldwin v. Zurich Am. Ins. Co. iii No. 03-14-00457-CV Brief of the Appellee TABLE OF CONTENTS
Identity of Parties and Counsel ................................................................................ iii Table of Contents ..................................................................................................... iv Index of Authorities ...................................................................................................v Statement of the Case.............................................................................................. vii Issue Presented ....................................................................................................... viii Issue No. One: Does the trial court lack subject matter jurisdiction when an employee in a workers’ compensation case files for judicial review after the 45 day deadline specified in the Texas Labor Code lapses? ............................ viii Statement of Facts ......................................................................................................2 Summary of the Argument.........................................................................................5 Argument....................................................................................................................6 Issue No. One: Does the trial court lack subject matter jurisdiction when an employee in a workers’ compensation case files for judicial review after the 45 day deadline specified in the Texas Labor Code lapses? ................................6 A. Standard Of Review. ............................................................................... 7 B. The 45 Day Deadline Is Jurisdictional And Mandatory. .............................................................................................. 7 C. Baldwin Has Failed To Challenge The Plea To The Jurisdiction As The Proper Means To Dismiss Her Case. ...................................................................................................... 10 Prayer .......................................................................................................................11 Certificate of Compliance ........................................................................................12 Certificate of Service ...............................................................................................12
Baldwin v. Zurich Am. Ins. Co. iv No. 03-14-00457-CV Brief of the Appellee INDEX OF AUTHORITIES
CASES
Argonaut Sw. Ins. Co. v. Walker, 64 S.W.3d 654 (Tex. App.—Texarkana 2001, pet. denied) ......................................................................8
Cervantes v. Tyson Food, Inc., 130 S.W.3d 152 (Tex. App.— El Paso 2003, pet. denied) .......................................................................................8
Davis v. Am. Cas. Co. of Reading, Pa., 408 S.W.3d 1 (Tex. App.—Amarillo 2012, pet. denied) ........................................................................8
Fire & Cas. Ins. Co. of Conn. v. Miranda, 293 S.W.3d 620 (Tex. App—San Antonio 2009, no pet.) .................................................................8
Johnson v. United Parcel Serv., 36 S.W.3d 918 (Tex. App.— Dallas 2001, pet. denied).........................................................................................8
LeBlanc v. Everest Nat'l Ins. Co., 98 S.W.3d 786 (Tex. App.—Corpus Christi 2003, no pet.) ......................................................................8
Morales v. Travelers Indem. Co. of Conn., No. 01-14-00429- CV, 2014 WL 7340374 (Tex. App.—Houston [1st Dist.] Dec. 18, 2014, no pet. h.) (mem. op.) .................................................................7, 8
Sunbeam Envtl. Servs., Inc. v. Texas Workers' Comp. Ins. Facility, 71 S.W.3d 846 (Tex. App. 2002) ...........................................................10
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) ..............................................................................................................7
Tex. Dep't of Transp. v. Backner, 74 S.W.3d 98 (Tex. App.— Waco 2002, no pet.) ................................................................................................8
Tex. Mun. League Intergovernmental Risk Pool v. Burns, 209
Baldwin v. Zurich Am. Ins. Co. v No. 03-14-00457-CV Brief of the Appellee S.W.3d 806 (Tex. App.—Fort Worth 2006, no pet.) ..............................................8
TEXAS RULES OF APPELLATE PROCEDURE
Tex.R.App. P. 38.3 ...................................................................................................10
STATUTES
Tex. Lab. Code Ann. § 410.252 .................................................................... 1, 3, 5, 7
Baldwin v. Zurich Am. Ins. Co. vi No. 03-14-00457-CV Brief of the Appellee STATEMENT OF THE CASE
Nature of the Linda Baldwin (Baldwin or the employee) asserted that she Case sustained a compensable injury on March 1, 2006. Zurich contended that she had not sustained a compensable injury on this date or, in the alternative, argued that it was relieved of liability.
Baldwin did sustain a compensable injury on August 20, 2007. However, she asserted that the injury included a myriad of conditions that Zurich disputed.
Course of The Texas Department of Insurance, Division of Workers’ Proceedings Compensation (the Division or DWC) determined that Baldwin did not sustain a compensable injury on March 1, 2006 and that Zurich was relieved of liability. CR 448-52. With regard to the August 20, 2007 claim that Zurich accepted, the Division found that the compensable injury did not include the disputed diagnoses. CR 448-52.
Baldwin filed her first petition in district court on October 5, 2012. CR 473. Baldwin brought tort claims against Zurich but did not appeal the decision of the Division. CR 473-81. The court dismissed the suit on January 3, 2013. CR 495.
On April 28, 2013, Baldwin filed a new petition to request review of the Division’s decision. CR 454-61. Zurich filed an amended answer and plea to the jurisdiction asserting that Baldwin did not appeal the Division’s decision within 45 days pursuant to Texas Labor Code §410.252(a) and therefore the trial court lacked jurisdiction.
Trial Court’s The Hon. Judge Triana dismissed the case for lack of subject Disposition matter jurisdiction on March 21, 2014.
Baldwin v. Zurich Am. Ins. Co. vii No. 03-14-00457-CV Brief of the Appellee ISSUES PRESENTED
ISSUE NO. ONE: DOES THE TRIAL COURT LACK SUBJECT MATTER JURISDICTION WHEN AN EMPLOYEE IN A WORKERS’ COMPENSATION CASE FILES FOR JUDICIAL REVIEW AFTER THE 45 DAY DEADLINE SPECIFIED IN THE TEXAS LABOR CODE LAPSES?
Baldwin v. Zurich Am. Ins. Co. viii No. 03-14-00457-CV Brief of the Appellee No. 03-14-00457-CV
TO THE HONORABLE COURT OF APPEALS: The Texas Workers’ Compensation Act requires a party seeking judicial
review from a decision rendered by the Division to file suit not later than 45 days
after the date the Division mailed the decision. TEX. LAB. CODE ANN. § 410.252(a).
This is an appeal of the trial court’s proper decision to grant Zurich’s plea to the
jurisdiction.
The underlying case is a workers’ compensation suit brought by Baldwin
after the Division determined that she had not sustained a compensable injury on
March 1, 2006 and that furthermore, the compensable injury she sustained on
August 20, 2007 did not extend to and include diagnoses Zurich disputed.
Baldwin v. Zurich Am. Ins. Co. 1 No. 03-14-00457-CV Brief of the Appellee However, Baldwin failed to file a petition seeking review of the Division decision
within 45 days.
Zurich moved to dismiss based on the grounds that Baldwin did not file suit
within the requisite time period and the trial court therefore lacked jurisdiction
over the suit. The trial court granted the plea and dismissed the suit. The district
court’s grant of the plea was proper and Zurich requests that this Court affirm the
dismissal.
STATEMENT OF FACTS
Baldwin was employed by Extended Stay Inc./HVM LLC as a laundry
attendant in a hotel for both alleged dates of injury. CR 450. The Division heard
two separate workers’ compensation disputes at the Contested Case Hearing
(CCH) that took place on June 14, 2012. CR-448.
The first case was docket number AU-11148351-01-CC-HD46. Id. The three
issues before the Hearing Officer were: 1) Did Baldwin sustain a compensable
injury on March 1, 2006; 2) Is Zurich relieved of liability due to Baldwin’s failure
to timely notify her employer of a work injury; and 3) Is Zurich relieved of liability
due to Baldwin’s failure to timely file a claim with the Division. Id.
The second case was docket number AU-08103562-03-CC-HD46. Id.
Zurich accepted a claim with August 20, 2007 as the date of injury. Id. The sole
Baldwin v. Zurich Am. Ins. Co. 2 No. 03-14-00457-CV Brief of the Appellee issue before the Hearing Officer was whether the compensable injury of August
20, 2007 extended to include plantar fasciitis of the left foot, left ankle sprain and
sprain of the left anterior talofibular ligament, osteoarthritis of the left knee and left
lower extremity, left knee crepitus, left shoulder impingement syndrome, and
osteoarthritis of the left forearm and radiocapitellar joint of the right elbow.
CR448-49.
The Hearing Officer found in Zurich’s favor on all issues for both docket
numbers in a decision signed on June 22, 2012. CR 451-52. Baldwin requested
review with the Appeals Panel, but on September 4, 2012, the Panel issued notice
that the Hearing Officer’s Decision and Order had become final. CR 444. Baldwin
then had 45 days from the date the Division mailed the notice from the Appeals
Panel to file a request for judicial review of the Division’s decision in district
court. TEX. LAB. CODE ANN. § 410.252(a). Since the statute provides that the notice
is deemed mailed five days after the notice is filed with the Division, Baldwin
essentially had 50 days from September 4, 2012. Id. October 25, 2012 was
therefore the deadline. RR 7.
Baldwin filed a petition on October 5, 2012, which was designated cause
number D-1-GN-12 003139. CR 473. However, in that petition, Baldwin only
alleged bad faith causes of action against Zurich and only requested relief in the
Baldwin v. Zurich Am. Ins. Co. 3 No. 03-14-00457-CV Brief of the Appellee form of economic damages. CR 473-80. Baldwin did not request review of the
Division’s decision in the October 5, 2012 petition and therefore did not comply
with Texas Labor Code § 410.252(a).
Judge Tim Sulak granted Zurich’s No Evidence Motion for Summary
Judgment, Special Exceptions, and Plea to the Jurisdiction on January 3, 2013. CR
348. Judge Sulak clearly indicated in his order that Baldwin’s suit was dismissed in
its entirety and that the order was final and appealable. Id. That order was not
appealed and Judge Sulak’s ruling is not before this Court.
Seven months after the appeals panel mailed its decision to her, on April 18,
2013, Baldwin filed a second petition designated cause number D-1-GN-13-
001281. CR 454. Baldwin re-plead her bad faith causes of action, but for the first
time asserted that she was appealing the Division’s decision regarding her 2006
and 2007 injuries. CR 454-61. Zurich filed another motion for partial summary
judgment based on the affirmative defense of res judicata. CR 20. Zurich argued
that Baldwin had already asserted tort and extra-contractual causes of action in her
first suit and that they had been dismissed via the order from Judge Sulak. Id.
On July 17, 2013, Judge Rhonda Hurley signed an order granting the motion
for partial summary judgment based on res judicata. CR 470. Judge Hurley stated
that the motion was granted “as to all claims, except for the appeal of Ms.
Baldwin v. Zurich Am. Ins. Co. 4 No. 03-14-00457-CV Brief of the Appellee Baldwin’s worker’s compensation claims from the Texas Department of Insurance,
Division of Workers Compensation, which remains unaffected by this Order.” Id.
Zurich then filed an amended original answer and plea to the jurisdiction on
February 21, 2014. CR 439. Zurich argued Baldwin did not request review of the
Division’s decision until April 18, 2013 and thus the trial court had no jurisdiction
over the second lawsuit. CR 439-41. Judge Gisela Triana granted the plea and
dismissed Baldwin’s remaining claims via order signed March 21, 2014. CR 787.
This is the only order of the three signed orders that has been appealed.
SUMMARY OF THE ARGUMENT
The Texas Labor Code states that a request for judicial review of a Division
decision in a Texas workers’ compensation case must be filed within 45 days of
the Division’s decision. While Baldwin filed a petition within the 45-day limit, she
plead bad faith causes of action and failed to indicate in her pleadings that she was
seeking review of the adverse Division decision. Those causes of action were
dismissed via summary judgment and plea to the jurisdiction.
Baldwin then filed a second petition where she requested review of the
Division’s determinations, but that petition was not filed within 45 days. As a
result, jurisdiction was not conferred to the trial court and the grant of the plea to
the jurisdiction was proper.
Baldwin v. Zurich Am. Ins. Co. 5 No. 03-14-00457-CV Brief of the Appellee ARGUMENT
The central issue in this workers’ compensation case is whether the trial
court had jurisdiction over Baldwin’s appeal of the Division’s decision given that
she did not file a petition requesting review within the 45 day time limit. TEX. LAB.
CODE ANN. § 410.252(a).1 Because Baldwin did not file a petition seeking to
appeal the Division decision within the requisite time period, this Court should
affirm the trial court’s judgment that dismisses the suit for want of jurisdiction.
ISSUE NO. ONE: DOES THE TRIAL COURT LACK SUBJECT MATTER JURISDICTION WHEN AN EMPLOYEE IN A WORKERS’ COMPENSATION CASE FILES FOR JUDICIAL REVIEW AFTER THE 45 DAY DEADLINE SPECIFIED IN THE TEXAS LABOR CODE LAPSES?
It is undisputed that Baldwin had until October 25, 2012 to file a petition
requesting a review of the Division’s decision. Baldwin failed to meet that deadline
and the trial court therefore lacked jurisdiction to consider a suit for judicial review
of the Division’s order. The plea to the jurisdiction was properly granted.
The statutory 45-day deadline is mandatory and jurisdictional. Baldwin has
not claimed, at either the trial court level or the appellate level, that a plea to the
jurisdiction is not a proper mechanism to challenge a late-filed workers’
compensation appeal. Any such argument has been waived.
1 Appellee does not dispute that Baldwin timely filed a request for review of the Hearing Officer’s decision with the Appeals Panel. Instead, Zurich asserts that Baldwin failed to timely file suit in district court seeking judicial review of the Division’s determination. Baldwin’s assertion in this appeal that the
Baldwin v. Zurich Am. Ins. Co. 6 No. 03-14-00457-CV Brief of the Appellee A. STANDARD OF REVIEW. Whether a court has subject matter jurisdiction is a question of law. Tex.
Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). Whether
a pleader has alleged facts that affirmatively demonstrate a trial court's subject
matter jurisdiction is a question of law reviewed de novo. Id. Likewise, whether
undisputed evidence of jurisdictional facts establishes a trial court's jurisdiction is
also a question of law. Id. When a plea to the jurisdiction challenges the pleadings,
the court should determine if the pleader has alleged facts that affirmatively
demonstrate the court's jurisdiction to hear the cause. Id. The court should construe
the pleadings liberally in favor of the plaintiff and look to the pleader’s intent. Id.
If the pleadings affirmatively negate the existence of jurisdiction, then a plea to the
jurisdiction may be granted without allowing the plaintiffs an opportunity to
amend. Id.
B. THE 45 DAY DEADLINE IS JURISDICTIONAL AND MANDATORY. The Texas Workers’ Compensation Act § 410.252(a) states that:
A party may seek judicial review by filing suit not later than the 45th day after the date on which the division mailed the party the decision of the appeals panel. For purposes of this section, the mailing date is considered to be the fifth day after the date the decision of the appeals panel was filed with the division.
Appeals Panel dismissed her appeal due to untimely filing and that Zurich’s plea is based on that determination is inaccurate. CR 444.
Baldwin v. Zurich Am. Ins. Co. 7 No. 03-14-00457-CV Brief of the Appellee Eight Texas appellate courts have held that the 45 day deadline is mandatory
and jurisdictional in nature, and if the suit is not timely filed, the trial court lacks
subject matter jurisdiction. Davis v. Am. Cas. Co. of Reading, Pa., 408 S.W.3d 1, 6
(Tex. App.—Amarillo 2012, pet. denied); Fire & Cas. Ins. Co. of Conn. v.
Miranda, 293 S.W.3d 620, 624 (Tex. App—San Antonio 2009, no pet.); Tex. Mun.
League Intergovernmental Risk Pool v. Burns, 209 S.W.3d 806, 812 n. 9 (Tex.
App.—Fort Worth 2006, no pet.); LeBlanc v. Everest Nat'l Ins. Co., 98 S.W.3d
786, 787 (Tex. App.—Corpus Christi 2003, no pet.); Johnson v. United Parcel
Serv., 36 S.W.3d 918, 921 (Tex. App.—Dallas 2001, pet. denied); Argonaut Sw.
Ins. Co. v. Walker, 64 S.W.3d 654, 657 (Tex. App.—Texarkana 2001, pet. denied);
Morales v. Travelers Indem. Co. of Conn., No. 01-14-00429-CV, 2014 WL
7340374, at *2 (Tex. App.—Houston [1st Dist.] Dec. 18, 2014, no pet. h.) (mem.
op.); See Cervantes v. Tyson Food, Inc., 130 S.W.3d 152, 155 (Tex. App.—El Paso
2003, pet. denied).2
The Appeals Panel issued notice that the Hearing Officer’s decision and
order had become final on September 4, 2012.CR 444. Baldwin had 50 days from
that date to file suit seeking judicial review. TEX. LAB. CODE ANN. § 410.252(a).
Baldwin did not file a petition in district court seeking review of the Division’s
2 But see Tex. Dep't of Transp. v. Backner, 74 S.W.3d 98, 103 (Tex. App.—Waco 2002, no pet.).
Baldwin v. Zurich Am. Ins. Co. 8 No. 03-14-00457-CV Brief of the Appellee decision until April 18, 2013. CR 454. The trial court therefore did not have
jurisdiction to hear Baldwin’s suit and properly granted Zurich’s plea to the
Baldwin in her briefing asserts that the original petition she filed on October
5, 2012 contains a request for judicial review of the Division’s decision and
therefore she met the 45 day deadline. Appellant’s Brief, pg. 4. In that petition,
Baldwin complains that Zurich failed to send the designated doctor in the
underlying administrative action all of her medical records, that the carrier denied
certain medications, and that Zurich exhibited bad faith practices. CR 28-36. She
requested recovery of economic damages including loss of earnings as well as
mental anguish. CR 34. However, nowhere in the petition did she assert that she
was seeking judicial review of the Division’s decision or that she had been harmed
or aggrieved by the Hearing Officer’s findings of fact or conclusions of law. As
such, the four corners of the petition reflect that Baldwin failed to request judicial
review by filing suit on October 5, 2012.
Furthermore, Judge Sulak dismissed the case related to the October 5, 2012
case in its entirety by order signed January 3, 2013. Baldwin did not appeal that
dismissal. Therefore, even if Baldwin’s argument were correct that she raised a
request for judicial review in that petition, Baldwin failed to perfect an appeal from
Baldwin v. Zurich Am. Ins. Co. 9 No. 03-14-00457-CV Brief of the Appellee that order of dismissal.
C. BALDWIN HAS FAILED TO CHALLENGE THE PLEA TO THE JURISDICTION AS THE PROPER MEANS TO DISMISS HER CASE. Where a claimant has failed to challenge the use of a plea to the jurisdiction to
defeat a late-filed request for judicial review, Texas appellate courts have refused
to remand a case where the trial court granted the plea. See Morales v. Travelers
Indem. Co. of Conn., No. 01-14-00429-CV, 2014 WL 7340374, at *2 (Tex. App.—
Houston [1st Dist.] Dec. 18, 2014, no pet. h.) (mem. op.).
Baldwin has challenged the trial court’s decision to grant the plea. She has also
argued that the plea was not a proper method for challenging her pleadings because
it challenged “the validity of the merits of Ms. Baldwin’s claim, not the jurisdiction
of the district court.” Appellant’s Brief, pg. 24-25. However, she does not contend
that a plea to the jurisdiction is an improper vehicle to request relief from the trial
court where the request for judicial review from the Division decision was filed
after the 45 day time limit lapsed. Accordingly, she has waived such argument by
failing to raise it in her initial brief. See Tex.R.App. P. 38.3; Sunbeam Envtl.
Servs., Inc. v. Texas Workers' Comp. Ins. Facility, 71 S.W.3d 846, 851 (Tex. App.
2002).
Baldwin failed to file a timely suit for judicial review of the Division’s decision
and the trial court therefore properly granted the plea to the jurisdiction.
Baldwin v. Zurich Am. Ins. Co. 10 No. 03-14-00457-CV Brief of the Appellee PRAYER
Zurich respectfully requests that this Court uphold the decision of the trial
court to grant Zurich’s plea to the jurisdiction and dismiss the suit, or for such
other and further relief to which Petitioner may have shown itself to be entitled.
Respectfully submitted,
FLAHIVE, OGDEN & LATSON P. O. Drawer 13367 Capitol Station Austin, Texas 78711 512-477-4405 512-867-1700 Fax
/S/ Jessica M. MacCarty Jessica M. MacCarty State Bar No. 24077822 Robert D. Stokes State Bar No. 19274100
Attorneys for Appellee Zurich American Insurance Company
Baldwin v. Zurich Am. Ins. Co. 11 No. 03-14-00457-CV Brief of the Appellee CERTIFICATE OF COMPLIANCE
In accordance with Tex. R. App. P. 9.4(i)(2)(B), the undersigned counsel
certifies that the document attached hereto contains 3,422 words as measured by
the word count of the computer program used to prepare the document.
/S/ Jessica M. MacCarty_ Jessica M. MacCarty State Bar No. 24077822 Attorney for Appellee
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of Appellee’s Brief has been
forwarded by certified mail, return receipt requested, on this 12th day of January,
2015 to:
Linda Baldwin 10151 Dorrell Lane #1164 Las Vegas, Nevada 89166 Appellant
/S/ Jessica M. MacCarty_ Jessica M. MacCarty
Baldwin v. Zurich Am. Ins. Co. 12 No. 03-14-00457-CV Brief of the Appellee No. 03-14-00457-CV
APPENDIX TO APPELLEE’S BRIEF
1. Texas Department of Insurance, Division of Workers’ Compensation Contested Case Hearing Decision and Order, signed June 22, 2012
2. Texas Department of Insurance, Division of Workers’ Compensation Appeals Panel Notice of Decision, dated September 4, 2012
3. Baldwin’s Original Petition, filed October 5, 2012
4. Order Granting Defendant’s Motion for Partial Summary Judgment, Special Exceptions, and Plea to the Jurisdiction with Dismissal by Judge Tim Sulak, dated January 3, 2013
5. Baldwin’s Original Petition, filed April 18, 2013
6. Order Granting Defendant’s Motion for Partial Summary Judgment by Judge Rhonda Hurley, dated July 17, 2013
7. Order of Dismissal by Judge Gisela Triana, dated March 21, 2014
8. TEX. LABOR CODE ANN. § 410.252
Baldwin v. Zurich Am. Ins. Co. 13 No. 03-14-00457-CV Brief of the Appellee