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At a Glance:
Title:
Argonaut Southwest Ins. Co. v. Brewer
Date:
June 30, 1994
Citation:
09-93-005-CV
Status:
Unpublished Opinion

Argonaut Southwest Ins. Co. v. Brewer

Court of Appeals of Texas, Beaumont.

Argonaut Southwest Insurance Co., Appellant,

v.

Argonaut Southwest Insurance Co., Appellant.

No. 09-93-005 CV.

|

June 30, 1994.

WALKER, J.

OPINION

*1 This workers’ compensation appeal results from judgment entered by the trial court upon a jury verdict awarding appellee, Allen Brewer, 401 weeks of workers’ compensation benefits. Trial was held in the 159th Judicial District Court, Honorable David Walker, presiding. Allen Brewer is the sole appellee and Argonaut Southwest Insurance Company, (Argonaut) is the sole appellant.

Generally stated, in the early morning hours of August 6, 1984, Allen Brewer, a theater manager for Martin Theaters, was severely injured in a collision where the car he was driving hit an unmarked trailer-tractor rig stretched across Mr. Brewer’s lane of travel.

Mr. Brewer incurred in excess of $110,000 in medical bills and expenses, same being stipulated to regarding reasonableness and necessity by Argonaut’s counsel. Argonaut, workers’ compensation carrier for Martin Theaters, denied Mr. Brewer’s workers’ compensation claim which ultimately resulted in the trial which we now review.

Appellee contended he was in the course of his employment when the collision occurred. Argonaut denied that Mr. Brewer was in the course of his employment when this collision occurred. Based on a submission of this question to the jury, the jury determined that Brewer was in the course of his employment when the collision occurred.

Specific facts show that at the time of this serious automobile/tractor-trailer collision, Mr. Brewer’s wife and daughter were passengers in Mr. Brewer’s vehicle as this family was proceeding home at approximately 12:30 a.m. on the morning of August 6, 1984. Mr. Brewer, his wife and daughter were seriously injured in this crash. Allen Brewer was life-flighted to Herman Hospital suffering from extremely serious bodily injuries including but not limited to abdominal and back injuries. During back surgery Mr. Brewer developed Adult Respiratory Distress Syndrome, whereby his breathing functions shut down. Mr. Brewer was put on a lifesupport system for three weeks, during which time he developed blood clots in his lungs. Mr. Brewer was in intensive care for approximately one month. It is not surprising that the medical testimony in this case established clearly that Allen Brewer was totally and permanently disabled. To this date, Argonaut has not paid any sum of money toward Mr. Brewer’s claim for workers’ compensation benefits, positioning that Mr. Brewer was outside the course and scope of his employment at the time of injury.

Subsequent to the accident resulting in injuries to Mr. Brewer, his wife and daughter, suit was brought against the driver of the truck and the driver’s employer. This lawsuit was settled for $825,000, $25,000 of which was for the benefit of Mr. Brewer’s daughter, the balance, less expenses and attorneys’ fees enured to the benefit of Mr. Brewer and his wife. Argonaut, refusing to pay any benefits to Mr. Brewer, now claims a credit or off-set for the amount appellee, Brewer, received in settlement of his third-party claim.

*2 The detailed facts show that Mr. Brewer’s use of his personal automobile was a necessary part of his job duties and not merely a means of traveling to and from work. It was undisputed that Mr. Brewer was paid an allowance for the use of his vehicle and that such vehicle was a requirement of his employment. It was further undisputed that Mr. Brewer was “on call” twentyfour hours per day (not to imply that Mr. Brewer was within the course and scope of his employment twenty-four hours per day). It was further undisputed that on Mr. Brewer’s vehicle itself, was at all times, an advertisement for “Martin Theaters.”

Evidence revealed that immediately prior to the wreck, Mr. Brewer had worked until 12:30 a.m. when he closed the theater, traveled to the bank to make the required deposits for his employer, traveled to the post office to mail materials for the employer, and then headed toward home. Prior to leaving the theater, Mr. Brewer had placed advertising materials relating to the promotion of his employer’s business in the trunk of his vehicle which he intended to work on upon arrival at his home. Mr. Brewer systematically did much of the promotional advertising work at his home.

Mr. Brewer had been employed as city manager for Martin Theaters from 1981 until the time of his injuries on August 6, 1984. When Mr. Brewer became city manager for Martin Theaters, his job was to oversee both the Town Square Theater and the Angelina Twin Theater. Mr. Brewer’s wife ran the Angelina Twin, however Mr. Brewer was the overseer for all Martin Theaters in Lufkin, Texas. It was Mr. Brewer’s job to order all supplies and to handle the advertisement for these two theaters. It is clear from the evidence that one important aspect of Mr. Brewer’s job duties was that he furnish and use his own personal vehicle in performing the job requirements.

Appellant attempts to cast a different light on the evidence by contending that Mr. Brewer’s predominant travel in performing his job duties was inside the city limits of Lufkin. Mr. Brewer actually testified that, “[l]ots of time I would get the film on Friday and I would have to run down to the bus station to pick up or I would have to drive to another town, like Conroe. I have gone down there quite a few times, Jacksonville, places like that.” Appellant acknowledges the payment of twenty dollars per week to Mr. Brewer for gasoline allowance but acknowledges that this amount of money, “was not even enough to cover all of his gasoline for the week.”

Appellant further contends that the advertising work which Mr. Brewer had in the trunk of his automobile at the time of the accident was not work that could only be done from his house. Appellant contends that Mr. Brewer could have done the advertising work at the theater and had done so many times in the past.

Viewing the entirety of the factual record before us, we perceive appellant’s depiction of Mr. Brewer’s duties as an after-the-fact suggestion of what Mr. Brewer’s duties perhaps should have been. We find nothing in the record which suggest a limitation on these duties by Mr. Brewer’s employer. We believe that an employer can, as here, create a job requirement scenario, so predominating as to make virtually indistinguishable the personal life and the employment life of an employee. It may well have been the intent of Martin Theaters that Mr. Brewer only work a five day week, however, such is not supported by the facts in this case. The facts of this case support that Mr. Brewer was required to perform whatever needed doing to guarantee the smooth operation and success of Martin Theaters. We find nothing in the record which would suggest that Martin Theaters ever placed a limitation upon what was required from and of Mr. Brewer.

*3 Appellant brings seven points of error to this Court for review. Point of error three contends: “The trial court erred in overruling Appellant Argonaut’s objection to the instruction accompanying Question No. 1 because the instruction given the jury improperly lessened Appellee Brewer’s burden of proof.”

Jury Question No. 1 inquired:

Do you find from a preponderance of the evidence that Allen Brewer was in the course of his employment for Martin Theatres when he was injured in the car wreck on or about August 6, 1984?

You are further instructed that an injury occurring while the employee is traveling to or from work is in the course of employment if-the transportation is furnished by the employer as a part of the contract of employment and not as a gratuitous accommodation to the employee, or is paid for by the employer; or

the employee is performing a service in furtherance of the employer’s business according to the express or implied requirements of his employment.

Answer “Yes” or “No”.

The instruction to the jury deviated from the Pattern Jury charges in that it did not inform the jury that an injury occurring while traveling from work is in the course of employment only if it is furnished by the employer, and so on. See 2 STATE BAR OF TEXAS, PATTERN JURY CHARGES PJC 19.24 (1989).

It is clear to this Court that the trial court misapplied the intended import of Article 8309 § 1b TEX.REV.CIV. STAT. ANNN. (Vernon Pamph.1994), repealed by Acts 1989, 71 St.Leg., 2d C.S., ch. 1, § 16.01(15), (18), (for current version of statute, see TEX. LABOR CODE ANN. § 401.011(12) (Vernon Pamph.1994)), which provides:

Sec. 1b. Transportation or travel as basis for claim for injury. Unless transportation is furnished as a part of the contract of employment or is paid for by the employer, or unless the means of such transportation are under the control of the employer, or unless the employee is directed in his employment to proceed from one place to another place, such transportation shall not be the basis for a claim that an injury occurring during the course of such transportation is sustained in the course of employment. Travel by an employee in the furtherance of the affairs or business of his employer shall not be the basis for a claim that an injury occurring during the course of such travel is sustained in the course of employment, if said travel is also in furtherance of personal or private affairs of the employee, unless the trip to the place of occurrence of said injury would have been made even had there been no personal or private affairs of the employee to be furthered by said trip, and unless said trip would not have been made had there been no affairs or business of the employer to be furthered by said trip.

Jury Question No. 1 improperly instructed the jury that an injury while traveling to or from work is in the course of employment if transportation is furnished by the employer as a part of the contract of employment and not as a gratuitous accommodation to the employee, or is paid for by the employer. (emphasis ours)

*4 “A party objecting to a charge must point out distinctly the objectionable matter and the grounds of objection.” Garza v. Southland Corp., 836 S.W.2d 214, 218 (Tex.App.-Houston [14th Dist.] 1992, no writ), the Houston Court confronted the question of whether plaintiff had properly objected to an instruction accompanying Jury Question No. 1. The Court determined that, “Nowhere in this objection is there a complaint that the burden of proof was not properly placed or that the submission amounted to an instructed verdict in favor of Southland. Nor do appellants state why the question is not in proper form.” (emphasis ours) Appellant’s point of error three is overruled.

Appellant’s points of error four and five complain of the trial court’s failure and refusal to submit appellant’s tendered instructions regarding the “dual purpose” doctrine and the furnishing of transportation. Appellant tendered two requested instructions, one relating to the dual purpose doctrine and the other pertaining to the furnishing of transportation by Martin Theaters. The trial court refused each request. The dual purpose instructions appear to be in substantially correct form while the transportation instruction is a glaring commentary.

The primary purpose served by objections to a court charge is to apprise the court of error, potential error or possible error, thus affording the court the opportunity of avoidance. The objection must be distinct. Lakeway Land Co. v. Kizer, 796 S.W.2d 820, 825 (Tex.App.-Austin 1990, writ denied).

Here we have the novel, if not unique, situation where the unobjected to jury question was so erroneous and such a misstatement of the law as to leave the jury virtually no alternative but to answer in the affirmative. Appellant’s requested “dual purpose” instruction was offered to accompany this erroneous, unobjected to, jury question. The evidence clearly raised a “dual purpose” question and, when requested, the trial court should submit appropriate accompanying instructions. Island Recreational Dev. v. Republic of Texas Sav., 710 S.W.2d 551 (Tex.1986). We hold that the trial court erred in refusing appellant’s properly worded instruction on “dual purpose,” however, we, like our Supreme Court, in Island Recreational, “decline to say that the failure to do so is reversible error per se ... [a]lleged error will be deemed reversible only if, when viewed in the light of the totality of these circumstances, it amounted to such a denial of the rights of the complaining party as was reasonably calculated and probably did cause the rendition of an improper judgment.” Id. at 555. TEX.R.APP. P. 81(b)(1).

*5 In light of the totality of our circumstances, we cannot say that error in refusing appellant its “dual purpose” instruction rises to the plateau of reversible error. Appellant has not shown how the trial court’s refusal of its proffered instruction on “dual purpose,” under the totality of the circumstances, constituted error of sufficient magnitude to overcome appellant’s waiver of error as to the generic question.

Appellant’s general complaint, that the charge omitted the dual purpose instruction and that the mere furnishing of gasoline allowance did not constitute, “furnishing transportation,” failed to inform the trial court why Jury Question No. 1 and its instructions were legally incorrect, or how such submission would confuse the jury or prejudice appellant. See Castleberry v. Branscum, 721 S.W.2d 270, 277 (Tex.1986). Appellant’s points of error four and five are overruled.

Appellant’s points of error one and two address “no evidence” and “insufficiency of the evidence” to support the jury’s affirmative finding on Jury Question No. 1.

Our standard of review regarding appellant’s “no evidence” point is, whether, reviewing only the evidence and inferences therefrom which support the finding, and disregarding all contrary evidence and inferences, there is more than a scintilla of evidence to support the finding. Heldenfels Brothers, Inc. v. City of Corpus Christi, 832 S.W.2d 39, 41 (Tex.1992).

Appellant contends that there is not even a scintilla of evidence on the issue of whether Mr. Brewer was acting within the scope of his employment at the time of the accident.

Mr. Brewer was “on call” twenty-four hours per day. Mr. Brewer’s vehicle was a mobile advertisement of his employer. Mr. Brewer historically performed his job requirements at and in his home. Mr. Brewer was en route home to continue the performance of his job duties. Considering this evidence and inferences, disregarding all contrary evidence and inferences, such evidence exceeds the minimum scintilla requirement. Point of error one is overruled.

Regarding appellant’s factual insufficiency challenge, our standard is less restrictive than that of legal sufficiency. Here, we must determine whether an examination of all the evidence demonstrates that the finding complained of is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986).

The question becomes, “Was the jury’s answer to Jury Question No. 1, clearly wrong and manifestly unjust in light of all the evidence?”

It is neither incumbent nor proper for this Court to substitute our views regarding the credibility of witnesses for that of the jury. See Jaffe Aircraft Corp. v. Carr, 867 S.W.2d 27 (Tex.1993).

We have previously set forth an in-depth review of the evidence. Martin Theaters placed no employment restrictions upon Mr. Brewer. Mr. Brewer was required, in his employment, to do whatever it took to promote the best interest of his employer. Neither time, distance, nor direction was ever an issue until after Mr. Brewer’s injuries. The uncontroverted evidence showed that Mr. Allen Brewer consistently performed his job duties, at home, late at night and into the early morning hours.

*6 Considering all the evidence in a light most favorable to the jury’s verdict, we cannot say that the jury’s finding that Mr. Brewer was injured while in the course of his employment with Martin Theaters, was clearly wrong and manifestly unjust. Point of error two is overruled.

We now address appellant’s points of error six and seven.

Point of error six contends that the trial court erred in denying appellant Argonaut’s motion for offset because Argonaut conclusively established its right to a credit or offset for the amounts appellee Brewer, received in settlement of his third-party claim.

Point of error seven contends that the trial court erred in refusing to admit evidence of appellee Brewer’s third-party settlement and erred in denying appellant Argonaut’s motion for new trial because the tendered evidence was admissible as to the issue of Argonaut’s right to a credit or offset.

It is appellant’s contention that to allow Mr. Brewer a recovery under his workers’ compensation claim would allow Mr. Brewer to recover twice for the same injuries. In March 1987 a settlement was reached in the Brewers’ third-party lawsuit in the total sum of $825,000. Appellee contends that when the Brewers commenced their third-party action, Argonaut never intervened in the case to protect any interest it might have. Further, he argues that the thirdparty action was settled, “without Argonaut ever having paid one cent in compensation benefits and without Argonaut becoming involved in any way in the third-party suit to protect whatever interest it might have.”

Appellant contends that Mr. Brewer is entitled to only one satisfaction, citing Stewart Title Guaranty Co. v. Sterling, 822 S.W.2d 1 (Tex.1991). Our Supreme Court stated:

The one satisfaction rule applies to prevent a plaintiff from obtaining more than one recovery for the same injury. Appellate courts have applied the one satisfaction rule when the defendants commit the same act as well as when defendants commit technically differing acts which result in a single injury.

Id. at 7. Sterling does not specifically reference workers’ compensation cases.

Specifically, in the area of workers’ compensation claims, the law has long provided subrogation as a part of the code since as far back as 1925. See Fidelity Union Casualty Co. v. Texas Power and Light Co., 35 S.W.2d 782 (Tex.Civ.App.-Dallas 1931, writ ref’d). Courts have consistently recognized the rights of compensation carriers to be subrogated to recoveries received by the carriers’ insureds.

In a case of first impression, our Eastland Court interpreted TEX.REV.CIV. STAT. ANN. art. 8307, § 6a as amended effective September 1, 1973.1The question before that court was whether the amendment permitted a claimant to pursue to conclusion a third-party claim and then recover workers’ compensation benefits without accounting to the carrier for sums recovered. Granite State Insurance Co. v. Firebaugh, 558 S.W.2d 550 (Tex.Civ.App.-Eastland 1977, writ ref’d n.r.e.).

*7 The Firebaugh facts are somewhat similar to ours. In Firebaugh, the employee lost the effective sight of his right eye as a result of a motor vehicle accident. At the time of the accident, the employee was a member of a drilling crew and was traveling as a passenger in a vehicle owned and being operated by the driller. The crew was on its way to the rig when the accident occurred. Following the accident, Firebaugh made claim against Granite State Insurance Co., for workers’ compensation benefits. Granite denied liability contending that Firebaugh was not within the course and scope of his employment at the time of the accident. Firebaugh then made claim against the driller asserting negligent operation of the vehicle as proximately causing the accident and injuries. This claim was settled and Firebaugh received $12,500 paid by, and on behalf of, the driller. A general release in favor of the driller was executed by Firebaugh on March 12, 1976. Firebaugh then filed a workers’ compensation lawsuit in August of 1976. The case was submitted to the court upon an agreed statement of facts and judgment was entered favoring Firebaugh. Granite appealed. In reversing and rendering, the Eastland Court determined that Section 6a as amended and permit a double recovery by the employee.” Id. at 553.

Our present problem differs considerably from Firebaugh in that the Brewers settled their third-party action for $825,000, $25,000 of which went to the Brewers’ daughter. The balance of that settlement, less expenses and attorneys’ fees, went to Mr. Brewer and his wife. There is no evidence as to the manner in which these proceeds were attributed for injuries received by Mr. Brewer or Mrs. Brewer.

The question becomes, what amount of these settlement proceeds should Argonaut be entitled to claim as an offset to Mr. Brewer’s action for workers’ compensation benefits? It is clear that both Mr. Brewer and Mrs. Brewer received personal injuries resulting from the accident. Appellant Argonaut attempted to introduce evidence regarding the third-party settlement and Argonaut’s entitlement to offset against that amount. Argonaut, by Bill of Exception, questioned Mr. Brewer regarding the third-party settlement. Mr. Brewer testified that the approximate amount of settlement proceeds attributable to he and his wife was “three or four hundred thousand dollars.” The actual amount was never made clear let alone the manner of division.

*8 In this Bill of Exceptions proceeding, appellant’s counsel stated a three fold purpose: To have the trial court allow evidence regarding the third-party lawsuit to be presented to the jury; to avoid a violation of the motion in limine; and, as evidence for the trial judge to base an offset to the compensation award, if any, based on recovery in the third-party proceeding.

The trial court properly disallowed this evidence to go before the jury. The trial court further properly allowed this evidence in determining whether the court itself would allow Argonaut an offset.

During this Bill of Exceptions proceeding, Argonaut failed to produce any specific evidence pertaining to the amount of recovery actually attributed to Mr. Allen Brewer. The evidence, in a nutshell, simply showed that Mr. and Mrs. Brewer received approximately “three or four hundred thousand dollars” such proceeds being in satisfaction of both Brewers’ injuries. The judgment entered in this workers’ compensation case, favoring Mr. Brewer, was for the total sum of $303,789.89. The record is absolutely void of evidence upon which the trial court could have based a decision to offset the jury’s verdict. Under the “offset” evidence it would have been pure speculation, conjecture and guessing by the trial court to attribute a dollar amount to the requested offset. It is elementary, that the burden of establishing an offset rested upon Argonaut. Argonaut failed to meet that burden, even though Argonaut’s counsel recognized such obligation. In discussing this matter with the trial judge we observe the following communication:

THE COURT: Oh, is this something even if you are entitled is this something to be determined after a jury has returned their verdict?

MR. GEORGE CHANDLER: I think it usually is.

THE COURT: Before a judgment is signed?

MR. BILL PERKINS: Well-

THE COURT: I mean if you have got the information.

MR. BILL PERKINS: No, I have to get the information from him.

We have previously cited authority which, in law, protects a compensation carrier’s right to offset its liability and responsibility by monies received by a claimant against a third-party tortfeasor. Although Article 8307 § 6a of the Workers’ Compensation Statute protected a carrier’s interest in its right to receive “first money” received from a third-party tortfeasor, this statute should not be considered or viewed as an absolute guarantee protecting a carrier’s entitlement. In the present case, we must apply subsection 6a (a) in a manner which addresses the totality of the circumstances before us.

When settlement was reached in the Brewers’ lawsuit against the third party, that settlement did not set forth any specific breakdown as to a division of the proceeds other than the setting aside of $25,000 into the registry of the court for the use and benefit of the Brewers’ minor daughter. Otherwise, the three or four hundred thousand dollars was simply attributable to claims made by both Mr. Brewer and Mrs. Brewer.

*9 Argonaut had a right to subrogation, that right being to reduce its liability due to the payment made by the third-party who settled with the Brewers. This right cannot and should not be compromised. See American General Fire & Cas. v. McDonald, 796 S.W.2d 201 (Tex.App.-San Antonio 1990, writ denied).

We believe the law to be clear that a workers’ compensation claimant cannot compromise the carrier’s right to credit and offset. However, we do not believe that the law protects a carrier from compromising its rights to credit and offset. Such, we believe to be the case before us.

In the present case, we observe that Argonaut was not unaware of matters ongoing in the Brewers’ third-party lawsuit. During the Bill of Exceptions hearing, Mr. George Chandler, attorney representing Mr. Allen Brewer, made the following address to the court:

MR. GEORGE CHANDLER: Okay. Let me move on to the last part then, the matter of offset. Judge, it’s our position in this case and this is nothing that the court even has to deal with now or even hear evidence on, that would be something we would take up after the verdict any way. But it’s our position that any right of offset that Argonaut may have had has been completely and totally and absolutely waived. Argonaut was present at every deposition I took. I faced a tag team with the attorneys for Argonaut and the attorneys for Royal Insurance, the carrier for Hutchinsons Industries. They have cooperated, the (sic) participated with one another, they each asked questions at the time it was Mr. McWhorter and Mr. Roper, later there were other lawyers. At the time the settlement of the underlying case was made Argonaut was fully aware of the settlement hearing, it was conducted in Judge Wilson’s court. They had every opportunity to come and seek a breakdown of the settlement in order to prove an allocation so as to give them a right of subregation (sic) under the subregation (sic) doctrine of Texas and specifically as stated in the Chambers and Ischy cases. For whatever reason Argonaut elected not to do that. They elected not to go in and prove how the recovery was allocated because we had three claimants. We had Allen Brewer, his wife Margaret Brewer, and Shaunna, all three in the car. It was an unallocated aggregate settlement to Mr. & Mrs. Brewer, a certain was set aside to Shaunna because she was a child. And as a consequence there is absolutely no way, no way that Mr. Perkins or Argonaut can prove any right of offset because we have no idea as to how the money was allocated. It was just paid to this family unit jointly. And Argonaut, in order to prove a credit or offset assuming they got by the Aranda violations in my bad faith case, 2121 of the Insurance Code, and other violations, assuming they could climb over that hurdle they can’t get over the basic hurdle how much Allen Brewer the individual recovered. There is just no way they can do it because it wasn’t allocated, that’s the basis of my objection. I’ll say it and I will state it throughout. I know it took a long time but if this is read in Beaumont or Austin, that’s my position about offset.

*10 Argonaut made no response whatsoever to counsel’s statement.

Even though Argonaut was not an intervenor in the third-party action, seemingly, it was very much involved in the goings-on in that case. Argonaut had the opportunity to obtain evidence regarding the Brewers’ settlement but failed to do so. Appellee contends that Argonaut “absolutely waived” its right to offset. We disagree that Argonaut’s failure to establish its right to credit and offset constituted a waiver. Rather, we view Argonaut’s peril as that of failing to meet its burden to produce evidence regarding its right to offset. Argonaut, now the challenging party, had the burden of proof to convince the trial court of not only its entitlement to offset but also the amount which should be offset. The scope of our review of this matter requires that we examine the record for evidence that supports the trial court’s failure to find, while ignoring all evidence to the contrary. Where no evidence supports the failure to find, we must then examine the entire record to determine whether Argonaut’s proposition is established as a matter of law. Holley v. Watts, 629 S.W.2d 694, 696-97 (Tex.1982).

Technically, Argonaut is not attacking the legal sufficiency of the trial court’s failure to find on the issue upon which Argonaut bore the burden of proof. However, our de novo review requires that we view appellant’s point of error six as an attack on the trial court’s failure to find. It is incumbent upon Argonaut to demonstrate to this Court that the evidence presented to the trial court conclusively established all vital facts in support of their claim for offset, as a matter of law. See Meyerland Community Improvement Association v. Temple, 700 S.W.2d 263, 267 (Tex.App.-Houston [1st Dist.] 1985, writ ref’d n.r.e.). We hold that the evidence proffered by Argonaut on the issue of offset falls far short of the matter of law standard. We overrule appellant’s point of error six.

Regarding appellant’s point of error seven, our best understanding is that appellant is complaining of the trial court’s failure to allow evidence of offset before the jury. In that such evidence is not proper for jury consideration, we overrule appellant’s point of error seven.

Appellee brings his cross-point of error complaining that Argonaut’s appeal is taken for delay and without sufficient cause, and should be sanctioned under TEX.R.APP. P. 84.

We disagree and overrule appellee’s cross-point of error. Even though we have overruled all appellant’s points of error, certainly same cannot be considered as having been presented for delay and without sufficient cause.

The judgment of the trial court is in all things affirmed.

AFFIRMED.

RONALD L. WALKER

*11 Chief Justice

Submitted on December 9, 1993

Opinion Delivered June 30, 1994

Do Not Publish

Before Walker, C.J., Brookshire and Burgess, JJ.

Footnotes

1

This statute was subsequently amended, then repealed. Current version and statute appears at TEX. LABOR CODE ANN. § 417.001 (Vernon Pamph.1994).

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