Court of Appeals of Texas,

Eastland.

Davis WEST, Appellant

v.

NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURG, Pennsylvania, Appellee.

No. 11–94–094–CV.

|

June 1, 1995.

Attorneys & Firms

John Wright and Martha C. Wright, for Davis West.

Art Lewis, for National Union Fire Insurance.

OPINION

JIM R. WRIGHT, Justice.

*1 This is a summary judgment case involving good cause for late filing of a claim in a workers’ compensation case. The trial court found that good cause did not exist and granted summary judgment for the carrier. The employee, West, appeals. We affirm.

Appellant, in two points of error, argues that summary judgment is precluded in this case in that the existence of good cause to file a workers’ compensation claim late is a question of fact and that the uncontroverted evidence raises a fact issue. We overrule both points of error.

West alleged that he received an injury in the course and scope of his employment on or about May 27, 1987. He filed his claim in December 1990. The summary judgment evidence reflects that West went to a company doctor at the time of the injury, that his injuries bothered him for a short time at work, and that he was able to work for extended periods of time and go about his usual routine. Further, appellant testified by deposition (which was a part of the summary judgment evidence) that he was aware that he had to file a claim within one year of the accident. Appellant was asked about any excuses that he may have had for the late filing. Appellant answered: “The only excuse would be it slipped my rememberance (sic).” When appellant was asked if that was the “only excuse,” he answered, “Yes.” West’s deposition also contains the following exchange:

A. My excuse may not even hold up, you know. Like they say, aint no excuse for not knowing the law. But I had been working. I was going through a lot of things, and I don’t know.

Q. Okay.

A. Went through a divorce. I had just went through a divorce. I really wasn’t settled.

Q. For a whole year, right?

A. Longer than that. I was, you know, kind of mixed up.

Q. You were mixed up from May of ′87 to May of ′88?

A. Probably mixed up before May. When I went through that divorce, it did a lot to me.

TEX.REV.CIV.STAT.ANN. art. 8307, § 4a (now repealed) required that a claim for injuries suffered while in the course and scope of employment must have been filed within one year from the date of injury. It is undisputed that West’s claim was not filed within one year. Therefore, he must show that there was good cause for the late filing of the claim and that the good cause continued until the date that the claim was actually filed. Lee v. Houston Fire and Casualty Insurance Company, 530 S.W.2d 294 (Tex.1975). The test for determining if good cause exists 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. City of Houston v. Garrett, 816 S.W.2d 800 (Tex.App.-Houston [14th Dist.] 1991, writ den’d).

Normally, the question of good cause would be a fact question to be determined by the trier of fact. However, in a particular case, it may be that lack of diligence is the only reasonable conclusion as the reason for late filing. In that event, the question is decided as a matter of law. Texas Casualty Insurance Company v. Beasley, 391 S.W.2d 33 (Tex.1965).

*2 Appellant argues that there are at least two reasons why good cause exists or that at least a fact question is raised. First, appellant claims that he thought his injuries were trivial. Next, appellant claims that he was going through a divorce at the time and that it had him “mixed up.” Either of these matters could constitute good cause for late filing or could, at least, raise a fact issue if there is support in the record that good cause continued up to the time of filing. There is not.

When testing the propriety of a motion for summary judgment, all evidence favorable to the non-movant must be taken as true. Further, every reasonable inference must be indulged in the non-movant’s favor, and all doubts resolved in favor of the non-movant. Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546 (Tex.1985). Also, good cause can be determined against a claimant as a matter of law only if there is no other reasonable conclusion to be drawn after the evidence is considered in the light most favorable to the claimant. Hawkins v. Safety Casualty Co., 207 S.W.2d 370 (Tex.1948).

When the summary judgment proof in this case is weighed against the standards of review set forth above, we find that West did not exercise the degree of diligence in filing his claim that a reasonably prudent person would have exercised under the same or similar circumstances. Texas Casualty Insurance Company v. Beasley, supra. Even if we assume that West could show good cause until May 1988, the date set forth in the above-quoted portion of his deposition, the record contains no proof of good cause beyond that time.

The judgment of the trial court is affirmed.