Court of Appeals of Texas, Dallas.
LAWSON-JEFFERSON ENTERPRISES, INC., Appellant
v.
SEABURY & SMITH, INC., Appellee
No. 05-95-00270-CV.
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Jan. 24, 1996.
Before BARBER, JAMES and WRIGHT, JJ.
OPINION
BARBER.
*1 Lawson-Jefferson Enterprises, Inc. (Lawson-Jefferson) appeals a summary judgment granted in favor of Seabury & Smith, Inc. (Seabury & Smith) in a suit for payment of workers’ compensation insurance premiums. In one point of error, Lawson-Jefferson complains the trial court erred in granting Seabury & Smith’s motion for summary judgment because there were material fact issues regarding the applicable experience modifier. We affirm the trial court’s judgment.
FACTS
Lawson-Jefferson is a corporation that does business as McDonalds. Seabury & Smith was the workers’ compensation insurance carrier for Lawson-Jefferson, Lawson-Kiest Enterprises, Inc. d/b/a McDonalds, and Lawson-Redbird Enterprises, Inc. d/b/a McDonalds. In 1991, Seabury & Smith brought suit against Lawson-Jefferson, Lawson-Kiest, and Lawson-Redbird for unpaid workers’ compensation insurance premiums for 1990. Seabury & Smith sought to recover $10,070.20 in unpaid premiums, plus attorneys’ fees, prejudgment and postjudgment interest, and costs. Lawson-Jefferson, Lawson-Kiest, and LawsonRedbird answered, generally denying the allegations and denying that all lawful offsets, credits, and payments were allowed because the proper experience rating1 was not used. On February 16, 1994, the trial court granted Seabury & Smith’s third motion for summary judgment on the issue of liability. It reserved the issue of damages for trial. On November 1, 1994, the trial court granted Seabury & Smith’s fourth motion for summary judgment on the issue of damages, rendering judgment that Lawson-Jefferson, Lawson-Kiest, and Lawson-Redbird were jointly and severally liable to Seabury & Smith for the amount of $10,070.20 in unpaid premiums, together with prejudgment interest, postjudgment interest, attorneys’ fees, and costs. Lawson-Jefferson perfected an appeal from the judgment.2
STANDARD OF REVIEW
The standards for reviewing motions for summary judgment are well established. Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 23 (Tex.1990). Summary judgment is not intended to deprive litigants of their right to a full hearing on the merits of any real issue of material fact. Gulbenkian v. Penn, 151 Tex. 412, 416, 252 S.W.2d 929, 931 (1952). The purpose of the summary judgment rule is to eliminate patently unmeritorious claims or untenable defenses. Id. The trial court’s duty is to determine if there are any material fact issues to try, not to weigh the evidence or determine its credibility and try the case on affidavits. Id.
A movant must show its entitlement to summary judgment on the issues expressly presented to the trial court by conclusively proving all essential elements of its cause of action or defense as a matter of law. See Black, 797 S.W.2d at 27. Where the summary judgment order does not specify the grounds on which it is based, we will uphold the order on any ground asserted by the movant that is supported by the evidence. See Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 79 (Tex.1989). When a motion for summary judgment asserts specific grounds, summary judgment cannot be upheld on grounds which were not asserted, even if the evidence supports the unasserted grounds. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 342 (Tex.1993).
ANALYSIS
*2 No experience modifier was requested for 1990. Lawson-Jefferson does not claim the $10,070.20, without the experience modifier, was improperly calculated. Rather, it contends that had Seabury & Smith furnished the experience loss information to the Texas Workers’ Compensation Commission and requested an experience modifier, its premium for 1990 would have been reduced. Seabury & Smith contends that had an experience modifier been requested, Lawson-Jefferson would have owed more than then the $10,070.20 premium sought. The dispute centers around which years’ information should have been used in calculating the experience modifier.
The Texas Experience Rating Plan Manual for Workers’ Compensation Insurance (Manual) governs the procedure to be followed in calculating workers’ compensation insurance premiums.3 The Manual provides that the experience modifier shall be calculated using the following data:
(2) Experience Period. The experience period … shall be not less than one (1) year and not more than three (3) years, commencing four (4) years prior and terminating one (1) year prior to the date for which an experience modification is to be established. Completed policy periods only shall be used.
The Manual also provides that if no modifier is requested, the manual or base premium rate shall apply.
Seabury & Smith presented summary judgment evidence that based upon the Manual, had an experience modifier been requested for 1990, it would have been calculated using data from 1986, 1987, and 1988. The resulting experience modifier would have been 1.34. It also presented summary judgment evidence that because no experience modifier was requested, Lawson-Jefferson was charged the base premium as required by the Manual. Lawson-Jefferson does not challenge the correctness of the $10,070.20 as calculated without an experience modifier.
Lawson-Jefferson’s evidence in opposition to summary judgment consisted in part of the deposition, with exhibits, of its president, Alfred Lawson. Alfred Lawson stated that he had calculated an estimated experience modifier of .83 for 1990. He based his information upon his loss experiences for the years 1988, 1989, and 1990. He stated that he was not familiar with the Manual.
The Manual is specific regarding the data to be used in calculating the experience modifier. Alfred Lawson incorrectly relied upon data from 1988, 1989, and 1990 when he calculated the estimated experience modifier of .83 for 1990. Even taking all of LawsonJefferson’s evidence as true and indulging all reasonable inferences in its favor, see Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548-49 (Tex.1985), LawsonJefferson’s evidence does not raise a fact issue regarding the proper experience modifier or amount of damages due. The trial court properly granted Seabury & Smith’s fourth motion for summary judgment. We overrule Lawson-Jefferson’s sole point of error.
We affirm the trial court’s judgment.
Footnotes |
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1 |
The experience rating or experience modifier is a calculation based upon the workers’ compensation subscriber’s safety record and loss experiences for prior years. The modifier, when multiplied by the base premium, will either increase or decrease the premium owed. The average is “1”. If the modifier is greater than 1, the premium will increase. If the modifier is less than 1, the premium will decrease. If no modifier is applied, the subscriber pays the base premium prescribed by the Texas Experience Rating Plan Manual for Workers’ Compensation Insurance. |
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2 |
Although the final summary judgment held all three defendants jointly and severally liable, only Lawson-Jefferson appeals the trial court’s judgment. |
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3 |
Section one of the Manual states: “The rules of this Plan shall govern the experience rating procedure to be followed in connection with Workers Compensation, Voluntary Workers Compensation and Employers Liability Coverage.” |
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