Court of Appeals of Texas, Dallas.
Vivian L. ANDERSON, Appellant,
UNITED STATES FIRE INSURANCE COMPANY, Appellee.
March 8, 1994.
On Appeal from the 191st District Court Dallas County, Trial Court Cause No. 90-12554-J
Before WHITTINGTON, JJ.
*1 We must decide whether appellant Vivian L. Anderson may receive workers’ compensation benefits for a job-related injury after receiving group health insurance benefits for that same injury. Because we conclude that Mrs. Anderson made a voluntary, knowing, and intelligent election of remedies by seeking and receiving group health benefits from her employer’s group health insurance, she cannot recover workers’ compensation. Accordingly, we affirm the trial court’s judgment.
Vivian L. Anderson was seriously injured in an automobile accident in 1986 while employed by Farm & Home Savings. The injuries were non-job related, but Farm & Home accommodated Anderson’s injuries by keeping her on a light work schedule.
On May 15, 1987, Murray Savings Association took over Farm & Home. Murray Savings did not continue Anderson on a light schedule. Anderson’s job required her to stand most of the time, but Murray Savings did not allow her to take breaks when her back or legs began to bother her. Murray Savings also required Anderson to move and unload boxes. On May 29, 1987, Anderson told her supervisor she was in severe pain. By the time she arrived home, she could not get out of a sitting position.
Anderson was admitted to the hospital the following morning and was released ten days later. She notified her employer that she had suffered an on-the-job injury. She filed claims with Murray Savings’ group health insurance carrier, which paid the costs of her hospitalization and made disability payments for thirty months. Anderson did not return to work.
In December 1989, Murray Savings terminated Anderson and canceled her health insurance. Anderson then filed a claim with the Industrial Accident Board, which awarded workers’ compensation benefits. Appellee United States Fire Insurance Co. (the insurance company), which provided workers’ compensation insurance coverage, appealed the award.1
The insurance company moved for summary judgment on two theories: (i) Anderson did not file her claim within one year of the date of the alleged injury as required by article 8307, section 4a of the Texas Workers’ Compensation Act;2 and (ii) Anderson made a knowing and intelligent election of remedies by seeking and receiving group health insurance benefits. The trial court, without stating a reason, granted summary judgment in favor of the insurance company.3
STANDARD OF REVIEW
The function of a summary judgment is not to deprive a litigant of the right to a full hearing on the merits of any real issue of fact but to eliminate patently unmeritorious claims and untenable defenses. Gulbenkian v. Penn, 151 Tex. 412, 416, 252 S.W.2d 929, 931 (1952). In reviewing a summary-judgment record, this Court applies the following standards:
*2 1. The movant for summary judgment has the burden of showing there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.
2. In deciding whether there is a disputed material fact issue precluding summary judgment, we must take the evidence favorable to the nonmovant as true.
3. We indulge every reasonable inference in favor of the nonmovant and resolve any doubts in her favor.
See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985).
The purpose of the summary-judgment rule is not to provide either a trial by deposition or a trial by affidavit, but is to provide a method of summarily terminating a case when it clearly appears that only a question of law is involved and that no genuine issue of fact remains. Port Distributing Corp. v. Fritz Chemical Co., 775 S.W.2d 669, 671 (Tex. App.-Dallas 1989, writ dism’d by agr.).
When a defendant moves for summary judgment on the basis of an affirmative defense, he must conclusively prove all elements of that defense. Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex. 1982). The insurance company, therefore, had to establish as a matter of law that Mrs. Anderson made an election of remedies.
ELECTION OF REMEDIES
In the second point of error, Anderson contends the trial court erred because she did not make a knowing election between two inconsistent remedies. Specifically, Anderson argues the insurance company: (i) failed to show any inconsistency between her group health insurance claim and her workers’ compensation claim; and (ii) failed to establish that she exercised informed choice. In the third point of error, she argues fact issues exist precluding summary judgment.
A. Applicable Law
The election of remedies doctrine constitutes a bar to relief when (1) one successfully exercises an informed choice (2) between two or more remedies, rights, or states of facts (3) which are so inconsistent as to (4) constitute manifest injustice. Bocanegra, 605 S.W.2d at 852.
B. Inconsistent Remedies
Anderson contends that because the insurance company did not include her group health insurance claim as part of the summary judgment proof, it has failed to conclusively establish that the remedies are inconsistent. Specifically, she asserts that this Court cannot assume the group health claim excludes claims for on-the-job injuries.
*3 The summary judgment proof consisted of the pleadings, excerpts from Anderson’s deposition, and portions of the certified copy of the Texas Workers’ Compensation Commission file in this case. In her deposition, Anderson testified she was admitted to the hospital on May 30, 1987. She said her pain was so severe, she could not stand up. Anderson said she “didn’t have any doubt” that her injury was job-related. She called her supervisor and told him her injury was job-related. She testified she understood that workers’ compensation insurance covered on-the-job injuries while group medical covered non-job-related illnesses. However, she applied for and received benefits under her employer’s group health plan. Once those benefits terminated, she sought recovery under workers’ compensation.
Our situation is factually analogous to Smith v. Home Indem. Co., 683 S.W.2d 559, 562 (Tex. App.-Fort Worth 1985, no writ). In Smith, the claimant argued that an affidavit of the custodian of records for the group carrier suggested that the group insurance and workers’ compensation remedies were not inconsistent because the relationship between the two policies with each other was ambiguous and confusing. The court, however, rejected the argument because the claimant’s deemed admissions established that the group insurance remedy was limited to non-work-related disability, and the claimant knew this to be true.
Likewise, Anderson’s deposition testimony satisfies the requirements of election of inconsistent remedies. The deposition established:
Anderson filed a claim for group insurance benefits.
Anderson received full medical and disability benefits for eighteen months under her employer’s group insurance coverage.
Anderson knew at the time she applied for the group insurance benefits that those benefits were for non-work-related injuries.
Anderson knew at the time she applied for the group insurance benefits that workers’ compensation insurance covered job-related injuries.
See Smith, 683 S.W.2d at 563. These facts, which could not be contradicted, established as a matter of law that the remedies sought by Anderson are inconsistent. No material fact issues exist as to the inconsistency of the remedies.
C. Informed Choice
Anderson also asserts the insurance company failed to establish that she exercised informed choice. Specifically, Anderson states that her choice was based on misrepresentations by her employer that she would be covered indefinitely as an employee with full benefits, including 100 percent medical insurance coverage and long-term disability. Additionally, she complains that her employer told her she should not retain an attorney. Under these circumstances, Anderson contends it would be inequitable to apply the election of remedies doctrine. In support of this position, she relies on Bocanegra.
In Bocanegra, one of the claimant’s doctors told the claimant that her injuries were job-related while another doctor told her that her injuries were not job-related. The claimant’s injuries may have been job-related, non-job-related, or they may have been both. Bocanegra, 605 S.W.2d at 853.
*4 Because of the factual distinctions, we conclude Bocanegra is not dispositive of this argument. In our case, there is no evidence of bewilderment, confusion, or conflicting medical opinions as to the nature of Anderson’s injury. Anderson states in her deposition that she had “no doubt” that her injuries were work-related. She notified her employer that she suffered an on-the-job injury. Additionally, on her workers’ compensation claim form, Mrs. Anderson described her injury as occupational, resulting from “repetitious physical traumatic activity when bending, stooping, lifting, carrying, walking, standing without breaks from 5/16/87 5/29/87 injuring my back, both legs, right arm, right shoulder, neck and nervous system generally.”
Anderson also relies on 678 S.W.2d 916 (Tex. 1984). Again, however, we fail to find Anderson’s argument persuasive. In Overstreet, we affirmed summary judgment on election of remedies. The supreme court, however, concluded that the defendant had failed to establish as a matter of law that Overstreet had made an “informed” election. Although the supreme court did not elaborate, it apparently believed the evidence (deemed admissions) failed to establish that Overstreet knew the difference between coverages provided under group health and workers’ compensation. In our case, however, Anderson stated that she understood workers’ compensation covered work-related injuries while group health covered non-work-related injuries.
Contrary to Anderson’s assertion, we do not believe the elements of election of remedies require knowledge of preclusion-they require knowledge of the inconsistency. Anderson did not assert that her employer misled her as to the nature of the insurance or the nature of her injury. She does not assert that her employer instructed her not to file a workers’ compensation claim. She does, however, state that she did not initially file for workers’ compensation because she feared she would be fired. She sought workers’ compensation benefits only after her benefits under group health were terminated.
A litigant is bound by her choice if she was cognizant of the facts. Anderson was aware of the facts surrounding her injury and the differences between workers’ compensation and group health coverage. The fact that her employer agreed to indefinitely provide her with health insurance benefits and later terminated those benefits does not, in this case, prevent the exercise of informed choice. Therefore, we conclude the insurance company established as a matter of law that Anderson made a knowing and intelligent choice. No material fact issues exist as to this issue.
D. Manifest Injustice
In the third point of error, Anderson contends a fact issue exists as to whether it would constitute manifest injustice to allow her to recover workers’ compensation benefits.
Issues a nonmovant contends avoid a movant’s entitlement to summary judgment must be expressly presented by written answer to the motion or by other written response to the motion and are not expressly presented by mere reference to summary judgment evidence. McConnell v. Southside Indep. School Dist., 858 S.W.2d 337, 341 (Tex. 1993). Anderson failed to raise this issue in her response to the motion for summary judgment. Thus, we hold she has not preserved this issue for review. We overrule the points of error.
*5 Accordingly, we affirm the trial court’s judgment.
The parties were subsequently realigned so that Anderson was plaintiff in the trial court and the insurance company was defendant.
Act of June 19, 1983, 68th Leg., R.S., ch. 498, § 1, 1983 Tex. Gen. Laws 2921, repealed by Act of December 13, 1989, 71st Leg., 2nd C.S., ch. 1, § 16.01(10) to (12), 1989 Tex. Gen. Laws 114.
On appeal, the insurance company concedes that Anderson is not barred by the statute of limitations. Therefore, we will not address that ground.