Court of Appeals of Texas, Houston (14th Dist.).
Timothy N. BENNETT, Appellant,
Roland H. THOMASON, Appellee.
Oct. 29, 1998.
On Appeal from the 55th District Court Harris County, Texas Trial Court Cause No. 92-048701.
WANDA MCKEE FOWLER, Justice.
*1 Appellant, Timothy N. Bennett, appeals from a take nothing judgment in favor of Appellee, Roland H. Thomason, in Bennett’s suit to recover for damages sustained in an automobile accident. Bennett appeals on seven points of error. We affirm.
On November 26, 1990, Bennett was involved in an automobile accident with Thomason during which Thomason rear ended Bennett’s car. At the time of the accident, Bennett was in the course and scope of his employment at Dorsey’s Auto Trim. Bennett suffered considerable injuries to his back, which required surgery and prevented him from working. Because Bennett was in the course and scope of his employment at the time of the accident, he was able to file a worker’s compensation insurance claim. Under this claim, Nationwide Insurance Company paid benefits to or on behalf of Bennett in the amount of $145,101. Nationwide asserted its statutory right to “first money recovery” under the Texas Workers’ Compensation Act and intervened in the law suit. However, seven months before trial, Nationwide assigned its statutory credit to Thomason in exchange for $22,000.
The trial was to the judge. In his findings of fact and conclusions of law, he found the Estate of Roland Thomason1 was liable to Bennett for damages incurred during the accident on November, 26, 1990. The judge ruled that Bennett could recover for his injuries and medical treatments which occurred between “November 20, [sic] 1990, and April 16, 1991, and found that the damages owed to Bennett included the following: $2,000 for past lost wages, $15,450 for past pain and suffering, $7,050 for past mental anguish, and $11,425.77 for past medical bills, for a total of $35,925.77. However, the trial court also ruled that since Nationwide had assigned its worker’s compensation lien to Thomason, his estate was entitled to the full credit amount of $145,101. Since this lien amount exceeded the damages award, the trial court concluded that Bennett should take nothing from Thomason’s estate. The trial court also declined to award Bennett any attorney’s fees.
DISCUSSION AND HOLDINGS
In his first point of error, Bennett contends the court of appeals erred in allowing the late entered findings of fact and conclusions of law to be filed as a supplemental transcript, alleging that they are void because the trial court lacked jurisdiction over the case when it entered them. In his second point of error, Bennett contends the findings of fact and conclusions of law are void because they were entered by the trial court after the court lost jurisdiction in the case. We disagree with both these arguments. On October 21, 1996, the trial court signed the judgment in this case. Bennett requested findings of fact and conclusions of law on November 11, 1996. The trial court failed to enter any findings, so Bennett filed a notice of past due findings of fact and conclusions of law on December 2, 1996. The trial court finally entered its findings of fact and conclusions of law on February 27, 1997, well after the trial court’s plenary power ended.
*2 However, the fact that the trial court’s plenary power had ended does not make the trial court’s findings of fact and conclusions of law void. The expiration of the trial court’s plenary power does not affect or diminish the trial court’s ability to make and file amended findings of fact and conclusions of law. See Jefferson County Drainage, 876 S.W.2d at 959.
We also have another reason for accepting the findings the judge made. Bennett requested the findings. He was entitled to them and, to prosecute this appeal, he had to have the findings. See Jefferson County Drainage, 876 S.W.2d at 960. Consequently, we conclude that the findings are before the court.
Having concluded that the findings of fact and conclusions of law are before us for review, the only issue we need to determine is whether Bennett was injured by the belated filing. “If a judge files belated findings and conclusions, then the objecting litigant must show harm and injury. An example of such harm would be that the litigant was unable to adequately present his appeal.” See section 417.003 of the Texas Labor Code. However, our reading of the statute and of the record shows as a matter of law that he was not entitled to attorney’s fees and, therefore, that he was not harmed by not being able to request additional findings of fact.
Since September 1, 1993, the Texas Worker’s Compensation Act has been codified in the Labor Code. See Acts 1993, 73rd Leg., Ch. 269, § 1. section 417.003(c). He is using this subsection because the other two subsections about fee recovery discuss the payment of attorney’s fees when the insurance company is not represented by an attorney at trial. See id. In this cause, Nationwide was represented by counsel who had an active role during the trial, so the first two subsections are not applicable to Bennett’s situation.
*3 In section 417.003(c), the code states that
[i]f an attorney actively representing the insurance carrier’s interest actively participates in obtaining a recovery, the court shall award and apportion between the claimant’s and the insurance carrier’s attorneys a fee payable out of the insurance carrier’s subrogation recovery. In apportioning the award, the court shall consider the benefit accruing to the insurance carrier as a result of each attorney’s service. The total attorney’s fees may not exceed one-third of the insurance carrier’s recovery.
Twin City Fire Ins. Co. v. Jones, 834 S.W.2d 114, 117 (Tex.App.-Houston [1st Dist.] 1992, writ denied) (stating that the proper review of the apportionment of attorney’s fees is the abuse of discretion standard).
In addition, a more fundamental problem exists with regard to Bennett’s request for attorney’s fees. He never presented any evidence of the work he performed. “To recover attorney’s fees under the Act, the claimant must prove the nature and extent of the services performed by the attorney.” Twin City Fire Ins. Co. v. Meave, 743 S.W.2d 765, 766 (Tex.App.-Houston [1st Dist.] 1988, no writ). There being no evidence in the record of the nature and extent of his services, the trial court could not make any findings of fact and conclusions of law on the issue of attorney’s fees. We overrule Bennett’s first and second points of error.
In his third point of error, Bennett contends the trial court abused its discretion in denying attorney’s fees. For the reasons stated above, we do not believe Bennett was entitled to attorney’s fees. We, therefore, overrule Bennett’s third point of error.
In his fourth point of error, Bennett contends the trial court erred in awarding a judgment credit in favor of Thomason towards the judgment in the amount of the worker’s compensation lien. In his fifth point of error, Bennett contends the trial court erred in granting Thomason a judgment credit because the carrier’s assignment of its worker’s compensation subrogation lien to the third-party tortfeasor was void, being against public policy. In his sixth point of error, Bennett contends the trial court erred in granting Thomason a judgment credit because the worker’s compensation lien was extinguished as a matter of law when it was assigned to the third party tortfeasor. In his seventh point of error, Bennett contends the trial court erred in granting Thomason a judgment credit because there are no statutory provisions for the assignment of a worker’s compensation subrogation lien with a judgment credit. We disagree and will address the points of error together since they were argued together in Bennett’s brief.
*4 In Texas, the Courts have consistently held that an insured’s right to subrogation may be altered by contract. See Chevron, U.S.A., Inc. v. Simon, 813 S.W.2d 491, 491-92 (Tex.1991) (stating that insurance carrier could contractually waive subrogation rights and that defendant could be beneficiary of the waiver). In this cause, we find that the trial court properly ruled that Thomason was entitled to Nationwide’s statutory lien because the company had contracted for that lien.
Bennett also argues that the doctrine of merger extinguished the lien, claiming that once Thomason received the lien from Nationwide, it merged with the person liable for payment of the lien, and thus the lien was extinguished and cannot be used to reduce any of Bennett’s recovery. Based on this reasoning, Bennet argues he is entitled to recover the entire $35,925.77 the trial court awarded to him. We disagree for two reasons. First, Bennet failed to cite any cases that discuss the doctrine of merger or its operation. Second, Bennett is not entitled to a double recovery. The law in Texas is quite clear-“[t]he employee or his representatives have no right to any of the funds received from the third-party tortfeasor until the carrier receives payment in full.” Performance Ins. Co. v. Frans, 902 S.W.2d 582, 585 (Tex.App.-Houston [1st Dist.] 1995, writ denied). The reason for this rule is that it
reduces the burden of insurance to the employer and to the public by preventing an employee from retaining proceeds from a settlement in addition to his compensation benefits while the carrier is only partially reimbursed for what it has paid. A workers compensation carrier’s right to reduce its liability because of the payment of a third party must not be compromised.
Id. (citations omitted). Because public policy prevents Bennet from receiving a double recovery and because Texas law allows Nationwide to alter its right to its lien by contract, the trial court properly allowed Thomason to receive the benefit of Nationwide’s lien.
*5 We, therefore, overrule Bennett’s fourth, fifth, sixth, and seventh points of error, and affirm the trial court’s judgment.
Thomason passed away while the trial date was pending.
Although this case, and others, discuss the trial court’s ability to file late amended findings of fact and conclusions of law, we find its logic also applies to original findings of fact and conclusions of law.