TEX. EMP. INS. ASS'N v. Herron

569 S.W.2d 549
CourtCourt of Appeals of Texas
DecidedJune 26, 1978
Docket1315
StatusPublished

This text of 569 S.W.2d 549 (TEX. EMP. INS. ASS'N v. Herron) 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
TEX. EMP. INS. ASS'N v. Herron, 569 S.W.2d 549 (Tex. Ct. App. 1978).

Opinion

569 S.W.2d 549 (1978)

TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Appellant,
v.
Elbert N. HERRON, Appellee.

No. 1315.

Court of Civil Appeals of Texas, Corpus Christi.

June 26, 1978.
Rehearing Denied August 29, 1978.

*551 James W. Wray, Jr., H. T. Hermansen, Jr., Dyer, Redford, Burnett, Wray & Woolsey, Corpus Christi, for appellant.

Anthony F. Constant, Corpus Christi, for appellee.

OPINION

NYE, Chief Justice.

This is a workmen's compensation case. The injured employee, Elbert N. Herron, filed his claim with the Industrial Accident Board more than six months after the accident took place. The Board made an award from which the insurance company, Texas Employers' Insurance Association, appealed to the District Court. Herron filed a cross-action to recover the benefits to which he contends that he is entitled under Art. 8306, Tex.Rev.Civ.Stat.Ann. (1967). Based on the jury's answers to special issues, the trial court entered judgment awarding Herron benefits for total and permanent disability. The appellant insurance company, Texas Employers' Insurance Association, perfected its appeal to this Court.

On August 22, 1975, Herron sustained personal injuries in the course and scope of his employment as a mechanic for Tradewinds Ford Sales, Inc., in Corpus Christi, Texas. Herron reported the injury to his boss, Fred Burke, vice president and service manager for Tradewinds Ford. Thereafter, in spite of several attempts, Herron was unable to return to work. Although the accident took place on August 22, 1975, Herron did not file his claim for compensation with the insurance company until September 4, 1976, approximately twelve and one-half months after his accident. Herron testified that during this intervening period, he received repeated assurances by Burke that he (Herron) should not worry about insurance because everything would be "taken care of". Herron testified that these assurances caused him to believe that any necessary paperwork would be taken care of by his employer. In August, 1976, Herron consulted an attorney who discovered that no claim for benefits had been filed. Immediately thereafter, Herron's claim was filed on September 4, 1976.

In addition to other special issues, the trial court submitted special issues to the jury requesting findings on whether or not good cause existed for the belated filing of Herron's claim. The jury made the following findings in response to the good cause special issues: 1) that within six months from the date of his injury, Tradewinds Ford or its agents had represented to Herron that notice of claim had been filed with the Industrial Accident Board; 2) that Herron believed continuously until about the time his claim was filed that his claim had been filed for him by representatives of Tradewind Ford; 3) that such belief caused Herron to delay filing a claim for compensation until the time the claim was filed; and 4) that such belief was good cause for Herron's delay in filing the claim for such period of time. The sole issues before us on appeal concern the sufficiency of the evidence to support the jury's answers to these special issues.

In workmen's compensation actions, the claimant must plead and prove that he timely presented his claim to the Texas Industrial Accident Board within six months after the occurrence of the accident. If the claim is filed after the expiration of the six-month period, the claimant must show that good cause existed for his failure to file the claim within the statutory time limit. Tex.Rev.Civ.Stat.Ann. art. 8307, sec. 4a (1967). Furthermore, when a claim has not been properly presented within the six-month period, the claimant must prove that good cause for failure to file continued up to the date of filing. Texas Casualty *552 Insurance Company v. Beasley, 391 S.W.2d 33, 34 (Tex.Sup.1965); Petroleum Casualty Co. v. Dean, 132 Tex. 320, 122 S.W.2d 1053 (1939). The meaning of the term "good cause", while not defined in Art. 8307, supra, was clearly set forth in Hawkins v. Safety Casualty Co., 146 Tex. 381, 207 S.W.2d 370, 372 (1948) as follows:

"The term `good cause' for not filing a claim for compensation is not defined in the statute, but it has been uniformly held by the courts of this state that the test for its existence is that of ordinary prudence, that is, whether the claimant prosecuted his claim with that degree of diligence that an ordinarily prudent person would have exercised under the same or similar circumstances."

In accordance with these guidelines, the totality of the claimant's conduct must be considered to determine whether the test of ordinary prudence has been met. Lee v. Houston Fire & Casualty Ins. Co., 530 S.W.2d 294, 297 (Tex.Sup.1975); Moronko v. Consolidated Mutual Insurance Co., 435 S.W.2d 846, 848 (Tex.Sup.1968); Texas Employers Insurance Association v. Fowler, 140 S.W.2d 545 (Tex.Civ.App.—Amarillo 1940, writ ref'd). The claimant's reason for delaying the filing of his claim is to be found principally in his own testimony. Texas Casualty Insurance Company v. Beasley, supra at 35.

Appellant insurance company brings forward eight points of error on appeal. These points of error are legal and factual insufficiency complaints directed to each of the above jury findings relevant to good cause. The thrust of appellant's appeal, however, is its contention that, even if we should find the jury's answers to special issues 1 through 3 above to be warranted by ample evidence, Herron, as a matter of law, failed to prove that degree of diligence necessary to support the jury's ultimate finding of "good cause" (special issue 4 above). Before addressing this contention, we consider appellant's legal and factual insufficiency points attacking the first three jury findings. A no evidence point of error is a question of law, and in considering the question, it is the duty of this Court to view the evidence in its most favorable light, considering only the evidence and reasonable inferences drawn therefrom in support of the judgment and to disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup. 1965); Transport Insurance Company v. Mabra, 487 S.W.2d 704 (Tex.Sup.1972). In deciding an insufficiency evidence point, this Court is required to consider all of the evidence. In Re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Fred Burke, vice president and service manager of Tradewinds Ford, had been a close personal friend of Herron for over twenty years at the time Herron sustained his injury. Burke characterized their relationship as a "very close" one. The Herrons and the Burkes made frequent social visits to each other's homes.

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Related

Continental Casualty Company v. Cook
515 S.W.2d 261 (Texas Supreme Court, 1974)
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244 S.W.2d 660 (Texas Supreme Court, 1951)
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487 S.W.2d 704 (Texas Supreme Court, 1972)
Allstate Insurance Company v. King
444 S.W.2d 602 (Texas Supreme Court, 1969)
Texas Employers' Ins. Ass'n v. Crain
259 S.W.2d 905 (Court of Appeals of Texas, 1953)
Lee v. Houston Fire & Casualty Insurance Co.
530 S.W.2d 294 (Texas Supreme Court, 1975)
Garza v. Alviar
395 S.W.2d 821 (Texas Supreme Court, 1965)
Moronko v. Consolidated Mutual Insurance Co.
435 S.W.2d 846 (Texas Supreme Court, 1968)
TEXAS EMPLOYERS INSURANCE ASS'N v. Coronado
519 S.W.2d 517 (Court of Appeals of Texas, 1975)
Texas Casualty Insurance Company v. Beasley
391 S.W.2d 33 (Texas Supreme Court, 1965)
Petroleum Casualty Co. v. Dean
122 S.W.2d 1053 (Texas Supreme Court, 1939)
Hawkins v. Safety Casualty Co.
207 S.W.2d 370 (Texas Supreme Court, 1948)
Texas Employers Ins. Ass'n v. Fowler
140 S.W.2d 545 (Court of Appeals of Texas, 1940)
Texas Employers' Insurance Ass'n v. Herron
569 S.W.2d 549 (Court of Appeals of Texas, 1978)

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569 S.W.2d 549, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tex-emp-ins-assn-v-herron-texapp-1978.