Royal Insurance Co. of America v. Szuma

731 S.W.2d 953, 1987 Tex. App. LEXIS 7805

• Court: Court of Appeals of Texas
• Decided: June 3, 1987
• Docket: No. 2-86-066-CV
• Status: Published

Opinions

OPINION

FARRIS, Justice.

This is an appeal of a worker’s compensation case in which the insurance carrier complains in two points of error of the trial court’s refusal to realign the parties.

We affirm the judgment of the trial court.

The appellant carrier brought suit to set aside a final award of the Industrial Accident Board in a claim for worker’s compensation benefits filed by the appellee. The appellee answered and cross acted alleging that the appellant had paid him 23¾ weeks of compensation at a rate of $189.00 per week and seeking an additional $189.00 per week for 376 weeks.

Appellant moved the court for a realignment of parties to show the appellee as plaintiff and the appellant as defendant. The appellant’s motion for realignment was denied. Appellant, in its first point of error, complains that the trial court’s denial of its motion for realignment of parties, was error which resulted in a “prejudicially misleading designation of the parties.” In its second point of error, appellant complains that the trial court erred in denying a motion for mistrial because a note from the jury demonstrated the prejudicial effect of the court’s refusal to realign the parties.

Either a claimant or insurer may bring suit to set aside a final ruling and decision of the Industrial Accident Board, and in either event, the court shall determine the issues upon trial de novo with the burden of proof upon the claimant. TEX.REV. CIV.STAT.ANN. art. 8307, sec. 5 (Vernon Supp.1987).

Appellant contends that the failure of the trial court to realign parties and name the appellee as plaintiff confused the jury resulting in harm to appellant. In support of its argument, appellant makes reference to statements by appellee’s attorney on voir dire, in opening statement, and in opening and closing argument in which appellee’s attorney comments upon the fact that the appellant insurance company was suing the appellee. Appellant made not one objection to any of the referenced statements of appellee’s attorney. Appellant also points to a note from the jury as evidence of injury resulting from the trial court’s refusal to realign the parties. During deliv-eration, the jury sent the following note to the court:

Why is the Insurance Company sueing [sic] Tony?

Is it because Tony wants more money and they don’t pay unless he is totally disabled?

The court responded to the jury's note as follows:

You are instructed that the Court is not permitted under the law to answer this question. You are not asked a jury question concerning this matter, therefore you should not consider or deliberate on same.

Appellant moved for mistrial arguing that the jury’s note to the court indicated that the failure to realign the parties had resulted in confusing the jury.

No complaint is made that the trial court misplaced the burden of proof.

The issue before us is not unique. In 1949, the Amarillo Court of Appeals held that it was not error for the trial court to refuse to realign the parties upon the motion of an insurance carrier in a suit brought by the carrier to set aside an award of the Board. Texas Employers’ Ins. Ass’n v. Brown, 226 S.W.2d 233, 235 (Tex.Civ.App.—Amarillo 1949, writ ref’d n.r.e.). Texas Employers’ Ins. Ass’n v. Brown was a worker’s compensation case brought by the carrier to set aside an award of the Board. The trial court denied a motion of the carrier to realign the parties. In its opinion affirming the trial court, the Court of Appeals discussed in detail the statutory authority before a suit to set aside a Board award. In summarizing its discussion of the statutory authority, article 8307, section 5, the Brown court stated:

Under the method of appeal thus prescribed by the Legislature, the party appealing from an award of the Board necessarily appears upon the docket of the trial court as plaintiff. Since the appellant and the trial court followed the procedure prescribed by law, it can not be said that the court erred in maintaining that which the law provides shall be done.

Brown, 226 S.W.2d at 235.

In affirming the trial court, we follow the holding in Texas Employers’ Ins. Ass’n v. Brown. The law of worker’s compensation deals with a cause of action which is wholly statutory, and in the area of statutory construction, the doctrine of stare de-cisis has its greatest force. See Allen Sales & Servicenter, Inc. v. Ryan, 525 S.W.2d 863, 866 (Tex.1975); Marmon v. Mustang Aviation, Inc., 430 S.W.2d 182, 186 (Tex.1968). The Brown decision was handed down more than 37 years ago, and since that time the legislature has made no change, relevant to the issue before us, in its statutory directives regarding the manner of parties bringing suit to set aside an award of the Board. We must assume that the legislature, through its inaction, has indicated its approval of the rule announced in Brown. See Coastal Industrial v. Trinity Portland, 563 S.W.2d 916, 918 (Tex.1978); Allen, 525 S.W.2d at 866.

As we previously noted, appellant did not object to references by appellee’s attorney on voir dire, in opening statement and in argument, that appellant had brought suit against appellee. It was within the trial court’s discretion to restrict the attorney for appellee in this regard. See Mandril v. Kasishke, 620 S.W.2d 238, 247 (Tex.Civ.App.—Amarillo 1981, writ ref’d n.r.e.) (argument); Texas Employers Ins. Ass’n v. Loesch, 538 S.W.2d 435, 440 (Tex.Civ.App.—Waco 1976, writ ref’d n.r.e.) (voir dire); Ranger Ins. Co. v. Rogers, 530 S.W.2d 162, 170 (Tex.Civ.App.—Austin 1975, writ ref’d n.r.e.) (opening statement). Appellant has not preserved his complaints for our consideration because he did not timely object to the statements of appellee’s attorney which are the basis of appellant’s complaint. Further, we are not impressed with the inferences appellant would have us draw with regard to the jury note. Had the court realigned the parties consistent with appellant’s request, the jury’s question might have been phrased:

Why is Tony suing the insurance company? Is it because Tony wants more money and they don’t pay unless he is totally disabled?

Appellant’s two points of error are overruled.

The judgment of the trial court is affirmed.

KELTNER, J., dissents.