Court of Appeals of Texas, Dallas.

LIBERTY MUTUAL FIRE INSURANCE COMPANY, Appellant,

v.

LAW OFFICES OF VIC TERRY, P.C., Appellee.

No. 05-90-00496-CV.

|

February 14, 1991.

Before ROWE, BAKER, and WHITTINGTON, JJ.

O P I N I O N

BAKER, Justice.

*1 This appeal involves attorney’s fees awarded a claimant’s attorney for future medical benefits under the Workers Compensation Act. Liberty Mutual Fire Insurance Company appeals from the trial court’s award of attorney’s fees to the Law Offices of Vic Terry, attorney for the claimant, Leopoldo Guiterrez. Liberty Mutual contends the trial court erred in awarding fees to the claimant’s attorney because the trial court relied on this Court’s decision in Chambers v. Texas Employers Ins. Ass’n,¹ which Liberty Mutual claims incorrectly construes the applicable provision of the Workers Compensation Act. Liberty Mutual also contends the trial court erred by denying it a jury trial, by denying Liberty Mutual’s motion to reform the judgment, and by admitting expert testimony from nondesignated witnesses. We overrule these points. We affirm the trial court’s judgment.

FACTS

The Terry firm was the attorney for an injured worker in a personal injury suit against a third-party tortfeasor. Liberty Mutual intervened in the suit to recover the worker’s compensation benefits it had paid to the injured worker. The Terry firm joined the suit as a third-party plaintiff and filed a cross-claim against Liberty Mutual for its attorney’s fees under article 8307, § 6a of the Worker’s Compensation Act. See Tex. Rev. Civ. Stat. Ann. art. 8307, § 6a (Vernon Supp. 1985). The parties settled the underlying suit. At the time of the settlement, the trial court severed the disputed attorney’s fees issue from the underlying suit. As part of the settlement, Liberty Mutual paid attorney’s fees to the Terry firm on the amount of past benefits and medical expenses Liberty Mutual had already paid to the injured worker. Liberty Mutual refused to pay attorney’s fees on the value of the future benefits it does not have to pay as a consequence of the injured worker’s settlement recovery from the third-party tortfeasor. The trial court tried the severed attorney’s fees claim in a nonjury trial. The trial court entered judgment for the Terry firm for attorney’s fees calculated on the value of the future benefits contained in the underlying settlement. Liberty Mutual appeals.

THE CHAMBERS RULE

In its first point of error, Liberty Mutual urges this court to overrule Chambers v. Texas Employers Ins. Ass’n, 693 S.W.2d 648 (Tex. App.-Dallas 1985, writ ref’d n.r.e.). In Chambers, we held that the true subrogation interest of a worker’s compensation carrier when it intervenes in a third-party action includes both the amount previously paid by the carrier to the injured worker and the value of the future payments it does not have to pay. Chambers, 693 S.W.2d at 650. This case is indistinguishable from Chambers.

Four other courts have reached the same conclusion we did in Chambers. Illinois Nat’l Ins. Co. v. Perez, 794 S.W.2d 373, 377 (Tex. App.-Corpus Christi 1990, writ denied); Tucker v. Texas Employers Ins. Ass’n, 768 S.W.2d 742, 744 (Tex. App.-Houston [1st Dist.] 1988, writ denied); Vanguard Ins. Co. v. Humphrey, 729 S.W.2d 344, 346 (Tex.App.-Houston [14th Dist.] 1987, writ ref’d n.r.e.); Ischy v. Twin City Fire Ins. Co., 718 S.W.2d 885, 888 (Tex. App.-Austin 1986, writ ref’d n.r.e.). The Texas Supreme Court has declined to grant review of any of the cases. The Supreme Court denied the application for writ of error in the latest case, Illinois v. Perez, in December 1990. We decline Liberty Mutual’s invitation to reconsider our rationale in Chambers. We overrule Liberty Mutual’s first point of error.

In its third point of error, Liberty Mutual asks for reformation of the judgment to reflect a calculation of attorney’s fees based on the net recovery to the injured worker less the attorney’s fees paid by the worker to his attorney in the underlying third-party claim. Chambers is also dispositive of this issue. We must apportion Liberty Mutual’s statutory liability for attorney’s fees under article 8307, § 6a of the Worker’s Compensation Act on “the benefit accruing” to the insurance carrier. We stated in Chambers:

*2 A worker’s compensation carrier benefits in two aspects when a worker secures a settlement from a third party. First, the worker must pay over to the carrier out of his third party settlement, everything previously received from the carrier. Second, the worker may receive no further payments from the carrier until his third party settlement has been exhausted.

Chambers, 693 S.W.2d at 650 (emphasis in original). The amount of attorney’s fees paid by the injured worker to an attorney in effecting the settlement is not a factor. The net amount recovered by the worker from the third-party tortfeasor means the amount of the settlement less the reimbursement due the carrier for the past benefits and medical expenses paid to the worker. Any excess is an advance against the liability of the carrier for future payments. When the advance is adequate to cover all future payments as provided by law, the carrier does not have to make further payments. If the advance is not enough, the carrier must resume making payments to the worker when the advance is exhausted. Chambers, 693 S.W.2d at 651; see Tex. Rev. Civ. Stat. Ann. art. 8307, § 6a (Vernon Supp. 1985). We said in Chambers that “the benefit accruing” to the carrier includes the liability for future payments which the carrier does not have to make. Chambers, 693 S.W.2d at 650. Liberty Mutual cannot simultaneously include the amount of the worker’s attorney’s fees in determining when the advance is exhausted and deduct them when calculating the amount of attorney’s fees it must pay. We again decline Liberty Mutual’s invitation to reconsider our rationale in Chambers. We overrule Liberty Mutual’s third point of error.

DENIAL OF JURY TRIAL

In its third point of error, Liberty Mutual contends the trial court erred by denying Liberty Mutual a jury trial. At the trial, the court determined that a party had paid the jury fee and demanded a jury in the underlying third-party action. Liberty Mutual contends that severance does not enlarge or impair a party’s rights or privileges. See Harris v. Moore, 740 S.W.2d 14, 15 (Tex. App.-El Paso 1987, no writ). It also contends that payment of a jury fee and jury demand before the severance entitles it to a jury trial. The Terry firm argues that without a separate jury fee payment and demand Liberty Mutual had no right to a jury trial in the severed action.

Liberty Mutual argues, and correctly so, a party has a right to a jury trial upon timely demand and payment of a jury fee. See Texas Const. art. V, § 10 (1876, amended 1935). At oral argument, Liberty Mutual agreed that if it had waived a jury in the underlying thirdparty action and had not paid a jury fee and demanded a jury trial in the severed claim, it would not be entitled to a jury. The record reflects that when the parties settled the Guiterrez third-party action, they entered into an agreed judgment. The agreed judgment recites that all parties, including Liberty Mutual, waived a jury. Liberty Mutual did not pay a jury fee and make a jury demand in the severed claim. See Tex. R. Civ. P. 216. Liberty Mutual did not show a jury was available at the time of trial. Liberty Mutual agreed to a trial on a date and at a place where no jury was available. See Olson v. Texas Commerce Bank, 715 S.W.2d 764, 767 (Tex. App.-Houston [1st Dist.] 1986, writ ref’d n.r.e.). We hold Liberty Mutual waived a jury trial. The trial court did not abuse its discretion in refusing Liberty Mutual a jury trial. See Olson, 715 S.W.2d at 767. We overrule Liberty Mutual’s point of error number two.

EXCLUSION OF EXPERT WITNESSES

*3 In its fourth point of error, Liberty Mutual contends the trial court erred in permitting attorney Warren Hays to testify as a fact and expert witness on attorney’s fees because the Terry firm had not designated the witness. When the Terry firm offered Hays’s testimony at trial, Liberty Mutual objected that the Terry firm had not designated Hays. Liberty Mutual contends, and correctly so, that the Texas Rules of Civil Procedure require parties to respond to a request for designation of experts expected to testify at trial at least thirty days prior to the trial date. See Tex. R. Civ. P. 166b(6)(b).

Liberty Mutual did not propound any discovery requests to the Terry firm either before or after severance of this cause from the underlying third-party action. It relies instead on a request for expert designation which it argues a defendant tendered to plaintiff Guiterrez in the underlying case. Liberty Mutual argues that it has a right to rely on the interrogatories and answers of other parties in the same suit. See Ticor Title Ins. Co. v. Lacy, 34 Sup. Ct. J. 315 (January 30, 1991) (not yet reported).

Failure to identify experts-upon proper request-results in the automatic exclusion of that witness’s testimony at the time of trial. Morrow v. H.E.B., Inc., 714 S.W.2d 297, 297 (Tex. 1987) (per curiam). “Proper request” means an appropriate inquiry directly addressed to the matter at issue. See Tex. R. Civ. P. 166b(6)(b). An appropriate inquiry necessarily includes identity of parties and of subject matter. The request relied upon must have been directed to the party who is offering the witness sought to be excluded at the trial or by a party whose interests are identified with the offering party’s. No discovery request directed to Guiterrez could have been addressed to the matter at issue, i.e., the Terry firm’s claim for attorney’s fees against Liberty Mutual.

In order to exclude a witness, a party must first demonstrate that a proper discovery request was made. See Austin Ranch Enterprises, Inc. v. Wells, 760 S.W.2d 703, 710 (Tex. App.-Fort Worth 1988, writ denied); Morrow, 714 S.W.2d at 297. The record does not reflect the discovery request upon which Liberty Mutual tries to rely. There is nothing in the record to show that any party directed a discovery request to the Terry firm or any other party identified with it requesting the name, address, and telephone number of any expert witness expected to testify about attorney’s fees. Liberty Mutual did not demonstrate in the record that a party had made a proper discovery request. We hold the trial court did not abuse its discretion in permitting the witness Hays to testify. We overrule Liberty Mutual’s point number four.

We affirm the trial court’s judgment.

Do Not Publish

Tex. R. App. P. 90

	Footnotes
1		693 S.W.2d 648 (Tex. App.-Dallas 1985, writ ref’d n.r.e.).