Reyna v. National Union Fire Insurance Co. of Pittsburgh

883 S.W.2d 368, 1994 WL 447767
CourtCourt of Appeals of Texas
DecidedOctober 5, 1994
Docket08-93-00281-CV
StatusPublished
Cited by8 cases

This text of 883 S.W.2d 368 (Reyna v. National Union Fire Insurance Co. of Pittsburgh) 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
Reyna v. National Union Fire Insurance Co. of Pittsburgh, 883 S.W.2d 368, 1994 WL 447767 (Tex. Ct. App. 1994).

Opinions

OPINION

McCOLLUM, Justice.

This is an appeal from a judgment against Appellant in a worker’s compensation case. In a single point of error, Appellant, Jesus Reyna, asserts that the trial court erred in submitting a “good cause” issue to the jury because the Appellee failed to raise its defenses by a proper verified denial. We reverse and remand.

Summary of the Evidence

Appellee, National Union, filed suit on September 9,1991, appealing an Industrial Accident Board award in favor of Appellant, Jesus Reyna, arising out of an alleged injury sustained by Appellant on December 20, 1985. Appellant’s answer on September 18, 1991 alleged a timely filed claim for compensation, or alternatively, good cause for late filing. On March 30, 1993, seven days prior to trial, Appellee filed its answer to Appellant’s counterclaim alleging that Appellant failed to timely file his claim with the Industrial Accident Board, and denied that Appellant had good cause for not filing timely. On the day of trial, Appellant filed his objection to Appellee’s verified denial which was overruled by the trial court. Appellant’s objection asserted the affidavit did not reflect that the affiant defense attorney had personal knowledge of the facts alleged in the verified denial and, further, that he was not competent to make the verified denial. At trial, Appellant renewed his objection, and objected to the jury charge containing an issue on “good cause.” The trial court overruled Appellant’s objection, and the jury found Appellant did not have good cause for delay in filing his claim with the Industrial Accident Board.

[370]*370 Rule 93(13)

Rule 93, Texas Rules of Civil Procedure, requires that certain pleas, unless the truth of such matters appear of record, shall be verified by affidavit. Rule 93 contains sixteen subsections concerning certain matters that require verification by affidavit. Subsection 13 concerns cases appealed to court from the Industrial Accident Board and includes eight subdivisions.

Rule 93(13) provides that certain pleaded matters in cases appealed to the court from the Industrial Accident Board shall be presumed to be true as pleaded and have been filed timely unless denied by verified pleadings. Tex.R.Civ.P. 93(18). Affidavits verifying the denial of matters involving notice of injury and good cause for not filing a claim ■with the Industrial Accident Board ■within the one year period may be made upon information and belief. Tex.R.Civ.P. 93(13)(a), (g). The implication is that the other matters set forth in Rule 93(18) are not sufficiently denied if the verification is made upon information and belief. Lechuga v. Texas Employers’ Ins. Assoc., 791 S.W.2d 182, 183-84 (Tex.App.—Amarillo 1990, writ denied); Federal Underwriters Exch. v. Hinkle, 187 S.W.2d 122, 126 (Tex.Civ.App.—Ft. Worth 1945, writ ref'd w.o.m.), accord Continental Fire & Casualty Ins. Corp. v. Snow, 213 S.W.2d 720, 721 (Tex.Civ.App.—Eastland 1948, no writ). A denial that a claim for compensation was timely filed with the Industrial Accident Board is not sufficient if made on information and belief. Tex. R.CrvP. 93(13)(b). Thus, the effect of the rule in those matters not excepted and allowed to be made on information and belief is that a sworn affidavit based on personal knowledge is required verifying the asserted matter.

The Answer and Affidavit

The relevant paragraph of the defendant’s answer read:

IV
For further answer, and without waiving the foregoing, Defendant alleges that Plaintiff failed to timely file the claim for compensation with the Texas Industrial Accident Board, and denies that there was good cause to excuse such failure.

This denial encompasses matters involving Rule 93(13)(b) as well as (g). As provided by the rule, since this denial was involving subsection (b), the verifying affidavit must be based on personal knowledge. A failure to properly do so would trigger the rule’s presumption that the Appellant’s allegation of timely filing was true as pleaded. See Tex. R.CivP. 93(13). The denial in question includes a clause involving good cause for not timely filing the claim for compensation, which is a matter allowed to be made on information and belief; however, since it is included with the denial for timely filing the claim, the standard for verification would necessarily be the higher personal knowledge requirement, since it would also cover the lesser standard of information and belief.

The affidavit in question read:

BEFORE ME, the undersigned authority, on this day personally appeared MICHAEL G. McLEAN, who first being duly sworn stated upon oath that he is the attorney of record for NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PENNSYLVANIA, herein, that he is authorized to act on behalf of NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PENNSYLVANIA herein, and that the foregoing statements and denials in Paragraphs IV and V of Defendant’s answer are true.

Discussion

Appellant maintains that the failure of Appellee to show in the affidavit that he was possessed of personal knowledge renders the verification inadequate to put in issue “timely filing” of his claim with the Industrial Accident Board. We agree.

The cases involving Rule 93(13) have not shed any light on the adequacy of the affidavit required by the rule. Both Appellant and Appellee rely upon cases involving the adequacy of affidavits in denying sworn accounts, presently Rule 93(10); and in summary judgment cases Rule 166a. Reliance, however, on Rule 166a cases is misplaced [371]*371whereby that rule sets out, specifically, the requirements of the affidavit and is thus not closely analogous to the issue at bar. We note that in addition to the exceptions found in Rule 98(13) allowing matters to be verified upon information and belief, two other subsections of Rule 93 allow verification upon information and belief. Tex.R.Civ.P. 93(8) and 93(15). Thus, the courts construing subsection 10 were confronted with the issue of the adequacy of affidavits analogous to the ease sub judice.

No particular terminology is required by the Government Code to render a document an affidavit. Tex.Gov’t Code Ann. § 312.011 (Vernon 1988); Norcross v. Conoco, Inc., 720 S.W.2d 627, 630 (Tex.App.—San Antonio 1986, no writ).

The present affidavit set forth that Mr. McLean was Appellee’s attorney of record and its agent. Although Mr. McLean is allowed under Rule 14 to execute the affidavit, it does not obviate his responsibility to meet the personal knowledge requirement of the rule. In Edinburg Meat Prod. Co. v. Vernon Co., 535 S.W.2d 432 (Tex.Civ.App.—Corpus Christi 1976, no writ) (a Rule 93(10) case, formerly Rule (93(k)), the Court held that without an assertion of personal knowledge by the affiant, the requirements of a verified denial are not met. Id. at 436.

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Reyna v. National Union Fire Insurance Co. of Pittsburgh
883 S.W.2d 368 (Court of Appeals of Texas, 1994)

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883 S.W.2d 368, 1994 WL 447767, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reyna-v-national-union-fire-insurance-co-of-pittsburgh-texapp-1994.