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Bedair ex rel. Bedair v. Houston Independent School Dist.
October 11, 2001
Unpublished Opinion

Bedair ex rel. Bedair v. Houston Independent School Dist.

Court of Appeals of Texas, Houston (1st Dist.).

Elizabeth Ann BEDAIR, Bobby Jack BEDAIR, Individually and as Next Friend of Elizabeth Ann Bedair II and Bobby Jack Bedair, Jr., Appellants,



No. 01-01-00083-CV.


Oct. 11, 2001.

On Appeal from the 61st District Court, Harris County, Texas, Trial Court Cause No.1998-59022.

Panel consists of TAFT, JJ.


COHEN, Justice.

*1 Elizabeth Ann Bedair and Bobby Jack Bedair, individually and as next friend of Elizabeth Ann Bedair II and Bobby Jack Bedair, Jr. (together, the Bedairs), appeal from a judgment denying their attorney, Harold Eisenman, reimbursement for attorney’s fees and expenses under the Labor Code. We affirm.


The Bedairs sued Houston Lighting and Power (HL & P) and one of its employees (together, the defendants) on December 15, 1998, alleging that Bobby Bedair, an employee of appellee Houston Independent School District (HISD), was injured on the job when his vehicle was hit by an HL & P truck. HISD, which was self-insured and provided medical and compensation benefits to Bobby Bedair, sued the same defendants under another cause number on January 22, 1999 on Bobby Bedair’s behalf as his subrogee. See TEX. LAB.CODE ANN. § 417.001(b) (Vernon 1996) (“If a benefit is claimed by an injured employee ..., the insurance carrier is subrogated to the rights of the injured employee and may enforce the liability of the third party in the name of the injured employee....”). The two suits were later consolidated.

The Bedairs moved for reimbursement of Eisenman’s attorneys fees and expenses under TEX. LAB.CODE ANN. 417.003(a) (Vernon 1996), which motion the trial judge denied; they then moved for reconsideration, which request was also denied. After the defendants settled with HISD for $40,000 and with the Bedairs for $110,000, the Bedairs reserved their right to appeal on attorney’s fees and expenses.

Appellate Jurisdiction

By separate motion, HISD argues that we should dismiss the appeal because the order the Bedairs challenge is not a “final judgment.” Here, the interlocutory order became final when later orders disposed of the remaining parties and claims. It is clear that the parties intended to dispose of everything remaining when (1) the Bedairs and the defendants jointly moved for a judgment disposing of all claims between them and (2) HISD and the defendants jointly moved for a judgment disposing of all claims between them. When the trial judge signed judgments based on these two joint motions, the interlocutory order denying reimbursement for attorney’s fees and expenses became final and appealable. See, e.g., H.B. Zachry Co. v. Thibodeaux, 364 S.W.2d 192, 193 (Tex.1963) (per curiam).

Accordingly, we deny HISD’s motion to dismiss the appeal.


In a sole issue, the Bedairs argue the trial judge erred in denying their motion for reimbursement of Eisenman’s attorney’s fees and expenses. Specifically, citing Twin City Fire Ins. Co. v. Jones, 834 S.W.2d 114, 116-17 (Tex.App.-Houston [1st Dist.] 1992, writ denied).

*2 The Bedairs rely on the italicized portion of section 417.003(a):

An insurance carrier whose interest is not actively represented by an attorney in a third-party action shall pay a fee to an attorney representing the claimant in the amount agreed on between the attorney and the insurance carrier. In the absence of an agreement, the court shall award to the attorney payable out of the insurance carrier’s recovery:

(1) a reasonable fee for recovery of the insurance carrier’s interest that may not exceed one-third of the insurance carrier’s recovery; and

(2) a proportionate share of expenses.

Id. at 446.

We hold the trial judge did not abuse his discretion in implicitly concluding that HISD’s attorney actively represented HISD in recovery of its subrogated interest or in denying the Bedairs’ motion for that reason. HISD filed its own suit on Bobby Bedair’s behalf as his subrogee. HISD’s attorneys responded to the defendants’ request for TEX.R. CIV. P. 194 disclosures, supplemented those responses, responded to the Bedairs’ rule 194 disclosure request, and requested rule 194 disclosures from the defendants. HISD asserts in its brief, without dispute, that its attorney attended a pretrial mediation.

HISD alleged in its reimbursement-motion response that, the week before trial, Eisenman, seeking to resolve HISD’s statutory compensation lien, advised HISD that the defendants had offered $70,000 in settlement. HISD, whose lien was already just under $75,000, further alleged that it responded by offering to settle its lien for $40,000-representing almost a 50 percent reduction in HISD’s compensation lien-free and clear of any attorney’s fees or expenses, but that the Bedairs rejected this offer.1 Accordingly, the Friday before the Monday trial date, HISD negotiated its own settlement with the defendants for $40,000. This settlement included assigning HISD’s lien to the defendants and requiring them to pay HISD within 15 days. HISD confirmed this settlement was “irrespective of Mr. and Mrs. Bedair’s claims against your clients.” The Bedairs apparently settled with the defendants immediately thereafter for $110,000. The defendants’ letter acknowledging settlement with the Bedairs stated that the $110,000 “is not subject to the subrogation lien held by [HISD] for workers compensation benefits paid in the past, as the lien for benefits paid in the past has been independently satisfied.” (Emphasis added.)

*3 By April 17, 2000, the HISD-defendants settlement had fallen through for lack of payment. After the trial judge denied the Bedairs’ request for attorney’s fees and expense reimbursement, the defendants and HISD consummated a $40,000 settlement agreement substantively similar to their prior one.

The trial judge did not abuse his discretion if he determined the above evidence showed HISD’s counsel “actively represented” HISD. The fact that Eisenman also developed his own clients’ case and greatly increased its settlement value, and may thereby also have aided HISD, does not change the fact that HISD’s own counsel actively represented and separately negotiated HISD’s lien recovery. See Branton & Mendelsohn, Inc., 670 S.W.2d at 701 (discussing how the purpose of this workers’ compensation statute was to prevent the carrier from getting the “free ride” of recovering its subrogated interest principally through the claimant’s counsel’s efforts without compensating the claimant’s counsel).

In contrast to the facts in City of Arlington v. Lummus and Hartford Ins. Co. v. Branton & Mendelsohn, Inc., on which the Bedairs especially rely, HISD’s counsel did more towards recovering its subrogated interest than merely file an intervention. See and compare Huston, 702 S.W.2d 697, 699 (Tex.App.-Dallas 1985, writ ref’d n.r.e.). Finally, we distinguish each case on which the Bedairs rely because those courts upheld the granting of fee and expense reimbursements, i.e., they found no abuse of discretion;2 this is the opposite of what the Bedairs ask this Court to find.

*4 Accordingly, we overrule the Bedairs’ sole issue and affirm the judgment.



At the reconsideration hearing, Eisenman stated that the top offer at an earlier mediation had been $32,000, to be split among him, the Bedairs, and HISD.


See TEX. LAB.CODE ANN. § 417.003(c), which is not relied on here).

End of Document