Wausau Underwriters Ins. Co. v. Wedel

557 S.W.3d 554
CourtTexas Supreme Court
DecidedJune 8, 2018
DocketNo. 17–0462
StatusPublished
Cited by15 cases

This text of 557 S.W.3d 554 (Wausau Underwriters Ins. Co. v. Wedel) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wausau Underwriters Ins. Co. v. Wedel, 557 S.W.3d 554 (Tex. 2018).

Opinion

Justice Johnson filed a dissenting opinion, in which Justice Boyd joined.

This case is about an unambiguous endorsement to a workers' compensation insurance policy. The Court concludes that the endorsement not only waived Wausau Underwriters Insurance Company's (Wausau) right of subrogation1 as to Western Refining Company, L.P. (Western), but also Wausau's right of reimbursement from amounts Western paid to Cactus Transport, Inc.'s (Cactus) employee, James Wedel.2 There is a decided and *561recognized difference between an insurer's right of subrogation and its right of reimbursement. See Fortis Benefits v. Cantu , 234 S.W.3d 642, 645 (Tex. 2007) (involving a health insurance policy with separate clauses3 addressing the rights of subrogation and reimbursement which "conferred on [insurer] two separate contractual rights of recovery, one styled 'subrogation' and one styled 'reimbursement.' ").

I agree that the endorsement waived the statutory subrogation right afforded Wausau by section 417.001 of the Workers' Compensation Act (Act).See TEX. LAB. CODE § 417.001. But I disagree that the endorsement waived the separate statutory right to reimbursement afforded by section 417.002. Id. § 417.002.

There are several problems with the Court's position. First, the Act expressly distinguishes between a carrier's right of subrogation and its right of reimbursement, as demonstrated in part by their being addressed in separate sections of the statute. See id. §§ 417.001, .002. Both are favored and are integral to success of the workers' compensation system. See, e.g. , State Office of Risk Mgmt. v. Carty , 436 S.W.3d 298, 304 (Tex. 2014) (stating that protection of these rights is the "primary purpose" of Labor Code sections 417.001 (subrogation) and 417.002 (reimbursement) ); Tex. Mut. Ins. Co. v. Ledbetter , 251 S.W.3d 31, 35 (Tex. 2008) (stating that first-money reimbursement is crucial to the workers' compensation system and prevents double recovery by workers). Yet the Court effectively ignores the distinction the statute makes between the two. Second, the endorsement on which Wedel bases his argument was obtained by Wedel's employer, Cactus, to comply with Western's written contractual requirement that Cactus's workers' compensation policy be endorsed with a waiver of the carrier's right of subrogation. The requirement was not that the policy be endorsed to waive the carrier's right to both subrogation and reimbursement. Third, the endorsement to Wausau's policy, according to its plain, explicit language, only precluded Wausau from "enforc[ing] [its] right" against Western to recover for payments Wausau paid to Cactus's employees. It did not reference and did not waive Wausau's right to reimbursement if Cactus's employees recovered on claims against third parties, such as Western.

I respectfully dissent.

*562I. Subrogation and Reimbursement in the Act

Texas enacted its first workers' compensation legislation in 1913. See Act of April 16, 1913, 33rd Leg., R.S., ch. 179, 1913 Tex. Gen. Laws 429, amended by Act of Mar. 28, 1917, 35th Leg., R.S., ch. 103, 1917 Tex. Gen. Laws 269. The Legislature amended the Act in 1917 to provide that an employee injured during the course of employment for an employer that provided workers' compensation insurance had an election if the injury was caused by a third party: the employee could elect to receive workers' compensation or pursue a third-party action against the alleged tortfeasor. See Fort Worth Lloyds v. Haygood , 151 Tex. 149, 246 S.W.2d 865, 867 (1952). If the employee elected to receive workers' compensation, then the carrier was "subrogated to the rights of the injured employ[ee] in so far as may be necessary and may enforce in the name of the injured employ[ee] or of his legal beneficiaries or in its own name and for the joint use and benefit of said employ[ee] or beneficiaries and the [carrier] the liability of said other person." Id. (quoting Act of Mar. 28, 1917, 35th Leg., R.S., ch. 103, § 6a, 1917 Tex. Gen. Laws 269, 285, repealed by Act of Dec. 11, 1989, 71st Leg., 2nd C.S., ch. 1, § 16.01(10), 1989 Tex. Gen. Laws 1, 114). The Legislature periodically amended the Act. As relevant to this case, the amendments refined provisions regarding the carrier's being subrogated to the rights of an injured employee4 against third parties liable for the injury and the rights of the injured employee regarding such third parties. See, e.g. , Act of Mar. 28, 1917, 35th Leg., R.S., ch. 103, § 6a, 1917 Tex. Gen. Laws 269, 285 (repealed 1989).

In 1993, the Legislature adopted the current Act. TEX. LAB. CODE tit. 5. Section 417.001 of the Act (1) expressly authorizes an injured employee to pursue both workers' compensation benefits and an action against third parties who caused the injury; (2) expressly provides a right of subrogation to the carrier and gives the carrier the right to enforce its subrogation right in the name of the employee; and (3) provides that if the carrier recovers an amount greater than its subrogation interest from a third party, then after the carrier reimburses itself and pays its costs from the amount recovered, it is to pay the remainder to the employee:

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Cite This Page — Counsel Stack

Bluebook (online)
557 S.W.3d 554, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wausau-underwriters-ins-co-v-wedel-tex-2018.