Court of Appeals of Texas, Dallas.

Bernard J. DOLENZ, Appellant,

v.

BRITISH AMERICAN INSURANCE COMPANY, Appellee.

No. 05-93-00816-CV.

|

August 31, 1994.

Before LAGARDE, BARBER and WHITTINGTON, JJ.

LAGARDE, Justice.

OPINION

*1 We withdraw our opinion of April 29, 1994. The following is now the opinion of this Court.

Bernard J. Dolenz appeals the dismissal of his causes of action against British American Insurance Company (BAIC). Dolenz brings seven points of error contending that the trial court’s dismissal of his causes of action against BAIC was error, an abuse of discretion, and violated Dolenz’s constitutional rights. We hold that the trial court did not abuse its discretion in dismissing Dolenz’s causes of action. We affirm the trial court’s dismissal of Dolenz’s causes of action.

PROCEDURAL BACKGROUND

According to Dolenz’s petition, Jose Duran was injured on the job. BAIC was Duran’s workers’ compensation carrier. Duran received medical treatment from the Dolenz Clinic and accumulated an unpaid account of over $65,000 with the Clinic. Duran received a favorable award from the Industrial Accident Board, which BAIC appealed to the district court. Dolenz attempted to intervene in the case, but the trial court did not allow the intervention. Dolenz appealed the trial court’s dismissal of his plea in intervention, and this Court affirmed the dismissal. Dolenz v. British Am. Ins. Co., No. 05-91-00777-CV (Tex. App.-Dallas Mar. 4, 1992, writ dism’d) (not published) (Dolenz I ).

Duran entered into an agreed judgment with BAIC for $41,000 in which Duran agreed to pay all outstanding and future medical bills “growing out of this injury(s) in question.” Duran apparently never paid Dolenz for his unpaid medical bills.

Dolenz then filed this suit against BAIC and Duran alleging that they breached various duties to Dolenz and defrauded and conspired to defraud Dolenz. Duran did not answer Dolenz’s petition, and Dolenz received a default judgment for $362,640 against Duran. BAIC answered Dolenz’s petition. BAIC moved for dismissal of Dolenz’s petition and for sanctions against him on several grounds, including the argument that Dolenz’s causes of action were barred under the Workers’ Compensation Act because Dolenz did not exhaust his administrative remedy before bringing suit in the district court. The court subsequently rendered judgment dismissing Dolenz’s claims with prejudice and rendering a take-nothing judgment against him.

SUBJECT MATTER JURISDICTION

In his first and second points of error, Dolenz contends that the trial court erred in dismissing his claims against BAIC. BAIC asserts that the trial court lacked jurisdiction of Dolenz’s claims because he did not present the claim to the Industrial Accident Board and exhaust his administrative remedy before bringing suit in the district court.

The Workers’ Compensation Act states, “All questions arising under [workers’ compensation] law … shall, except as otherwise provided, be determined by the [Industrial Accident] Board.” Act of June 15, 1977, 65th Leg., R.S., ch. 412, § 1, 1977 Tex. Gen. Laws 1113, 1113 (Tex. Rev. Civ. Stat. Ann. art. 8307, § 5), repealed by Act of December 12, 1989, 71st Leg., 2nd C.S., ch. 1, § 16.10, 1989 Tex. Gen. Laws 1, 114. When a plaintiff is required by statute to take preliminary administrative action before filing suit, he has the burden of showing that such prerequisite has been met. Methodist Hosps. v. Texas Workers’ Compensation Comm’n, 874 S.W.2d 144, 148-49 (Tex. App.-Austin 1994, no writ). The record does not show that Dolenz presented his claims to the Industrial Accident Board before bringing suit.¹ If his claims “aris [e] under” the workers’ compensation laws, then the trial court lacked jurisdiction over the claims and did not abuse its discretion in dismissing them. See Johnson v. American Gen. Ins. Co., 464 S.W.2d 83, 84 (Tex. 1971); Methodist Hosps., 874 S.W.2d at 148-49.

A. Suit on Sworn Account, Negligent Breach of Contract, Quantum Meruit

*2 Dolenz’s causes of action for suit on sworn account, negligent breach of contract, and quantum meruit involve only claims that BAIC failed to pay Dolenz’s submitted medical bills. A health care provider’s claim for compensation for services provided an injured worker “aris[es] under” the workers’ compensation laws. See Methodist Hosps., 874 S.W.2d at 149. Accordingly, the trial court did not err in dismissing these causes of action.

B. Breach of Duty of Good Faith and Fair Dealing

In his fifth point of error, Dolenz contends that the trial court erred in dismissing his causes of action under article 21.21 of the Texas Insurance Code because Dolenz possessed an independent cause of action under article 21.21 as a matter of law. Dolenz relies on Watson v. Allstate Insurance Co., 828 S.W.2d 423 (Tex. App.-Fort Worth 1991), aff’d in part and rev’d in part, 876 S.W.2d 145 (Tex. 1994), in support of this claim. In Watson, the Fort Worth Court of Appeals held that a third-party claimant could bring an article 21.21 cause of action against an insurer. Id. at 429 (op. on reh’g). The Texas Supreme Court, however, reversed the Fort Worth court on this point and held that a third-party claimant lacks standing to sue an insurer directly under article 21.21. Allstate Ins. Co. v. Watson, 876 S.W.2d 145, 150 (Tex. 1994). “Standing is implicit in the concept of subject matter jurisdiction.” Texas Ass’n of Business v. Texas Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). Accordingly, Dolenz did not have an independent cause of action under article 21.21 as a matter of law. Because Dolenz lacked standing to bring the cause of action, and the trial court therefore lacked jurisdiction over it, the trial court did not abuse its discretion in dismissing Dolenz’s cause of action for breach of the duty of good faith and fair dealing. We overrule Dolenz’s fifth point of error.

In his sixth point of error, Dolenz contends that the trial court erred in dismissing his claims because “the controlling supreme court authority allows … Dolenz to plead acts proscribed by section 17.46 of the DTPA² as part of his article 21.21 cause of action.” See Aetna Cas. & Sur. Co. v. Marshall, 724 S.W.2d 770, 772 (Tex. 1987); see also Tex. Bus. & Com. Code Ann. § 17.46 (Vernon 1987 & Supp. 1994); Tex. Ins. Code Ann. art. 21.21 (Vernon 1981 & Supp. 1994). Marshall does permit an insured to plead violations of section 17.46 of the DTPA in an article 21.21 action. Marshall, 724 S.W.2d at 772. However, the insured in that case had standing to assert an article 21.21 action. See id. As we discussed under Dolenz’s fifth point of error, Dolenz lacks standing to bring an article 21.21 action. Marshall does not purport to give standing to a third-party claimant bringing DTPA claims under article 21.21 when the party otherwise lacks standing to bring an article 21.21 claim. Marshall is not applicable to the facts of this case. Because Dolenz lacked standing to bring an article 21.21 claim, he also lacks standing to bring DTPA claims as part of an article 21.21 claim. Therefore, the trial court also lacked jurisdiction over the DTPA claims. We overrule Dolenz’s sixth point of error.

*3 In his seventh point of error, Dolenz contends that the trial court erred in dismissing because BAIC was required to deal fairly and in good faith with Dolenz, a third-party beneficiary of an insurance contract. Dolenz relies on St. Paul Guardian Insurance Co. v. Luker, 801 S.W.2d 614, 618 (Tex. App.-Texarkana 1990, no writ), in support of this argument. In Luker, the insured had a homeowner’s policy that gave the insured the option of extending coverage to the personal property of others. Luker, 801 S.W.2d at 617. When the house burned down, the insured filed a claim for the damage to the house and to the appellees’ household goods. The insurer refused to pay for the damage to the appellees’ goods. The appellees brought a bad faith claim against the insurer. Id. at 616. The Texarkana court held that “when an insurer agrees to insure a third party beneficiary under the terms of an insurance contract, it owes the same duty of good faith and fair dealing to the third party as it does to the purchaser of the insurance.” Id. at 618-19. The court reasoned that the agreement to cover the third party created a special relationship between the third party and the insurer. See id. at 618. In CNA Insurance Co. v. Scheffey, 828 S.W.2d 785 (Tex. App.-Texarkana 1992, writ denied), the Texarkana court held that the reasoning in Luker did not give a physician standing to sue a workers’ compensation insurer for breach of the duty of good faith and fair dealing. Scheffey, 828 S.W.2d at 791. The court reasoned that no special relationship exists between a workers’ compensation insurer and a physician providing medical services to a workers’ compensation claimant. Id. at 791. Contrary to Dolenz’s assertion, Luker and Scheffey do not create a split of authority. Scheffey distinguishes Luker. We find the Texarkana court’s reasoning in Scheffey on this issue persuasive. We overrule appellant’s seventh point of error.

C. Conspiracy, Fraud, Tortious Interference with Contract

In his third point of error, Dolenz contends that the trial court erred in dismissing his claims for conspiracy, fraud, and tortious interference with contract because they are not workers’ compensation causes of action. Although the claims are not brought under the Workers’ Compensation Act, the trial court lacked jurisdiction if the claims “ar[ose] under” the workers’ compensation laws. In the fraud and tortious interference with contract actions, Dolenz complained that certain acts of BAIC damaged Dolenz. These acts included BAIC not filling Duran’s prescriptions, not appropriately compensating Dolenz, and forcing “Dolenz to sue to collect his reasonable and necessary fees.” In his conspiracy action, Dolenz alleges that the actions of BAIC and Duran “were planned to preclude Dolenz from collecting his legitimate fees.” The essence of each of these causes of action is BAIC’s failure to compensate Dolenz for his medical services or BAIC’s failure to perform its duties under the Workers’ Compensation Act. All of these claims “aris[e] under” the workers’ compensation laws. Because Dolenz did not present these claims to the Industrial Accident Board before bringing suit on them, the trial court lacked jurisdiction over them. See Methodist Hosps., 874 S.W.2d 148-49. Accordingly, the trial court did not err in dismissing these claims. We overrule Dolenz’s third point of error.

D. Constitutional Claims

*4 In his fourth point of error, Dolenz contends that the trial court erred in dismissing all his causes of action because he had standing to bring these claims pursuant to article one, sections three (equal rights), thirteen (due course of law), and nineteen (due course of law) of the Texas Constitution. See Tex. Const. art. I, §§ 3, 13, 19. Dolenz argues that his rights under these provisions have been violated because: “[T]he Dolenz Clinic has provided services for the rehabilitation of Mr. Duran and the courts seemingly are not allowing Dolenz access to the courts to get paid for the goods and services rendered.”

Dolenz misunderstands the meaning of “due course of law.” The constitution does not prohibit the legislature from setting up an administrative-remedy framework and requiring a party to pursue that remedy before turning to the courts. The law does not close the courts to Dolenz; it requires that Dolenz fulfill a condition precedent (i.e., exhausting his administrative remedy) before turning to the courts for relief. See Johnson, 464 S.W.2d at 84; Methodist Hosps., 874 S.W.2d at 149. The law does not outright deny Dolenz access to the courts or deprive him of property without due course of law. Cf. Blair v. Texas Dep’t of Human Servs., 837 S.W.2d 670, 671-72 (Tex. App.-Austin 1992, writ denied) (person may receive due process of law from administrative tribunal). We overrule Dolenz’s fourth point of error.

Because the trial court did not have jurisdiction over Dolenz’s causes of action, it did not abuse its discretion in dismissing them. We overrule Dolenz’s first and second points of error and affirm the trial court’s order of dismissal.

	Footnotes
1		Dolenz asserts in his brief that he did present his claims to the Industrial Accident Board. However, statements in briefs that are unsubstantiated by the record are not considered on appeal. Bard v. Frank B. Hall & Co., 767 S.W.2d 839, 844 (Tex. App.-San Antonio 1989, writ denied). Dolenz attached an “appendix” to his brief that, he argues, proves he presented his claims to the Industrial Accident Board. However, attachments to briefs are not part of the record and cannot be considered on appeal. Perry v. Kroger Stores, Store No. 119, 741 S.W.2d 533, 534 (Tex. App.-Dallas 1987, no writ).
2		Texas Deceptive Trade Practice-Consumer Protection Act, Tex. Bus. & Com. Code Ann. §§ 17.41-.63 (Vernon 1987 & Supp. 1994).