Travelers Indem. Co. of Rhode Island v. Starkey

Court of Appeals of Texas,

Dallas.

THE TRAVELERS INDEMNITY COMPANY OF RHODE ISLAND (Now The Travelers Indemnity Company of Connecticut), Appellant,

v.

Lynn Edward STARKEY and Hazel Dean Starkey, Appellees.

No. 05–03–01531–CV.

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Feb. 17, 2005.

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Rehearing Overruled March 30, 2005.

Attorneys & Firms

*902 Julie B. Tebbets, Colleyville, for appellant.

Roger G. Williams, Wilson Williams Molberg & Mitchell, PC, Kenneth H. Molberg, Wilson, Williams & Molberg, P.C., Dallas, for appellees.

Before Justices LANG-MIERS.

OPINION

Opinion By Justice LANG-MIERS.

The Travelers Indemnity Company of Rhode Island (Now The Travelers Indemnity Company of Connecticut) appeals the trial court’s judgment awarding death benefits to Lynn Edward Starkey and Hazel Dean Starkey under the now-repealed provisions of the Texas Workers’ Compensation Act article 8306 section 8.¹ We affirm.

I. Factual and Procedural Background

On February 8, 1984, Jonathan Starkey sustained injuries in a motor vehicle accident while in the course and scope of his employment rendering him a quadriplegia. Travelers paid Jonathan 919 weeks of workers’ compensation indemnity benefits between the date of the injury and the date of his death seventeen years later on September 8, 2001. Jonathan also filed a third-party action against a party he alleged caused or contributed to his injuries. Travelers intervened in that action. The parties in the third-party action, including Travelers, reached a settlement, the terms of which are at issue in this appeal.

Following Jonathan’s death, his parents, Lynn and Hazel Starkey, sought death benefits under the now-repealed Texas Workers’ Compensation Act section 8b by signing this document; Travelers argued it did not. The trial court rendered judgment for the Starkeys against Travelers and entered findings of fact and conclusions of law, from which Travelers appeals.

II. The Issues

Travelers raises four issues with multiple subparts. Travelers initially argues the Starkeys’ cause of action never existed because Travelers paid Jonathan more than 360 weeks of benefits prior to his death which eliminated any claim the Starkeys had to death benefits. Travelers next challenges the sufficiency of the evidence to support the trial court’s judgment and findings of fact and conclusions of law because plaintiffs’ exhibit one, the contractual provision in dispute, was never admitted into evidence. Alternatively, Travelers argues the trial court erred in interpreting plaintiffs’ exhibit one as a waiver of the credit to which Travelers was entitled under section 8b. Travelers also argues the trial court erred in striking the verification of its supplemental answer denying Jonathan’s wage rate.

The Starkeys respond that plaintiffs’ exhibit one was admitted and that Travelers’ issues are not subject to review because there is an incomplete record on appeal. Alternatively, the Starkeys argue that Travelers contractually waived any right to credit under section 8b, the evidence is legally and factually sufficient to support the trial court’s findings, and the trial court did not err in striking Travelers’ verification.

III. Sufficiency of the Record

In its first three issues, Travelers challenges the sufficiency of the evidence to support the trial court’s judgment and findings of fact and conclusions of law because plaintiffs’ exhibit one—the sole evidence relied on by the trial court in rendering its findings of fact and conclusions of law—was never admitted into evidence. As a result, we must initially determine whether this exhibit was admitted and whether we have a complete record on appeal.

A. Was Plaintiffs’ Exhibit One Admitted?

The parties stipulated to plaintiffs’ exhibit one in open court on the record. A stipulation is “an agreement, admission, or concession made in a judicial *904 proceeding by the parties or their attorneys respecting some matter incident thereto.” M.J.R.’s Fare of Dallas, Inc. v. Permit and License Appeal Bd., 823 S.W.2d 327, 330–31 (Tex.App.-Dallas 1991, writ denied).

Travelers argues the stipulation relieved the Starkeys of the obligation to authenticate plaintiffs’ exhibit one, but not to offer the exhibit into evidence. But many cases have held that evidence treated by the trial court and the parties as if it had been admitted is, for all practical purposes, admitted. See, e.g., Texas Dep’t of Pub. Safety v. Latimer, 939 S.W.2d 240, 242–43 (Tex.App.-Austin 1997, no writ) (trial court considered administrative record in making decision, both parties treated it as evidence, both referred to the record’s contents, and no objection was made that administrative record had not been admitted).

The reporter’s record clearly shows that plaintiffs’ exhibit one was marked and that both parties treated the exhibit as if it had been admitted into evidence: attorneys for both parties referred to plaintiffs’ exhibit one during the trial, they agreed its interpretation was one of two issues for the trial court to decide, plaintiffs’ exhibit one was projected onto a screen for the benefit of the trial court, Travelers did not object to references to plaintiffs’ exhibit one on the basis it was not in evidence, the parties discussed tendering to the trial court the entire settlement agreement under seal, Travelers did not object to plaintiffs’ exhibit one in their objections to the proposed judgment or in their motion for new trial, and the trial court based its findings of fact and conclusions of law on this exhibit. We conclude that plaintiffs’ exhibit one was, for all practical purposes, admitted.

B. Standard of Review When Record is Incomplete

Plaintiffs’ exhibit one is not contained in the appellate record.⁴ Travelers *905 did not attempt to supplement the record, did not argue that plaintiffs’ exhibit one has been lost or destroyed under J.B. Chadwick v. Glens Falls Ins. Co., 340 S.W.2d 501, 503 (Tex.Civ.App.-Waco, 1960, no writ). Because we have an incomplete record, we overrule Travelers’ challenges to the sufficiency of the evidence to support the trial court’s findings of fact. We overrule Travelers’ second issue, subparts B and C, and its third issue, subpart A which deals with the trial court’s findings of fact.

IV. Challenge to the Existence of the Cause of Action

At trial, Travelers moved for directed verdict on the ground that the Starkeys’ cause of action for death benefits under Id. at 645, 175 S.W.2d 73.

However, Hart is distinguishable. Unlike here, the parties in Hart did not dispute whether the workers’ compensation carrier waived the section 8b credit for payments made prior to the injured worker’s death. Jonathan Starkey was injured on February 8, 1984. The third-party settlement agreement was signed December 10, 1987, less than 360 weeks after the date of injury. We conclude the trial court did not abuse its discretion in denying Travelers’ motion for directed verdict. We overrule Travelers’ first issue, subpart B.

V. Challenge to the Trial Court’s Findings of Fact and Conclusions *906 of Law⁶

A. Does the Contract Waive the Section 8b Credit?

Travelers challenges the legal sufficiency of the trial court’s conclusion of law number two because plaintiffs’ exhibit one was never admitted into evidence. We may review the trial court’s conclusions of law de novo to determine their correctness. See Richardson Indep. School Dist. v. G.E. Capital Corp., 58 S.W.3d 290, 293 (Tex.App.-Dallas 2001, no pet.). Conclusion of law number two states:

2. As a result of the contractual language cited above, the defendant is not entitled to an offset to or credit against the award to the plaintiffs for any compensation benefits it previously paid to or on behalf of Jonathan Starkey. The contract language waives or otherwise relinquishes the right, if any, that the defendant may have had in the absence of its agreement.

This conclusion is based on finding of fact number six, which quotes language from plaintiffs’ exhibit one:

6. The third-party action was settled by and between the parties, including the defendant here. As a part of that agreement, and in return for consideration, including a cash payment, Travelers agreed as follows:

The above amounts paid to Travelers shall constitute full settlement, satisfaction, and accord of all claims, demands, rights and liens that Travelers has or may have, directly or derivatively, accrued or contingent, under Tex.Rev.Stat. Ann. art 8307(6a)⁷, or otherwise, against .... the Starkeys, or any of them, in any way arising out of the Accident, the Action, or this settlement of the Action. None of the payments described in the Agreement shall in any way reduce, satisfy, or eliminate any obligation that Travelers has or may have to pay any future benefits to or on behalf of Jonathan Glynn Starkey....

The parties do not claim this provision is ambiguous, and our primary duty is to ascertain the parties’ intent as expressed within the provision’s four corners. See Ogden v. Dickinson State Bank, 662 S.W.2d 330, 331 (Tex.1983).

Travelers complains the trial court used parol evidence to interpret this provision as waiving the credit under Article 8306, § 8b as part of the document.” We disagree.

This provision in the third-party settlement agreement waives Travelers’ rights under “article 8307 section 6a and any other statute or provision by which Travelers may have had a claim against the Starkeys. For this reason, the trial court did not err in reaching conclusion of law number two. We overrule Travelers’ second issue, subpart A.

B. Did the Trial Court Err in its Award to the Starkeys?

In its third issue, Travelers argues the trial court erred in reaching conclusions of law numbers three, four and five in which the trial court awarded benefits, attorneys’ fees, interest and costs to the Starkeys because there is no evidence to support the findings of fact from which these conclusions were drawn. Travelers also argues that the issue of wage rate, upon which the benefits were calculated, was not before the trial court. We disagree. The parties stipulated that one of the two issues before the trial court was the average weekly wage applicable to the benefits sought by the Starkeys. For the reasons set forth under VI below, the evidence of weekly wage rate supports the trial court’s findings of fact numbers eight and nine in which the court determined that Jonathan’s average weekly wage produced a weekly compensation rate of $189. Conclusion of law number three is based on a mathematical calculation of the weekly benefits awarded to the Starkeys multiplied by the average weekly rate applicable to Jonathan. See Act approved March 28, 1917, 35th Leg., R.S., ch. 103 § 1 (repealed 1989). We conclude the trial court did not err in awarding benefits to the Starkeys.

In conclusions of law numbers four and five, the trial court awarded the Starkeys attorneys’ fees in the amount of twenty-five percent of the judgment, plus interests and costs “as allowed by law.” Article 8306 section 7d authorized the trial court to award attorneys’ fees up to twenty-five percent.⁸ It was not error, therefore, *908 for the trial court to award attorneys’ fees to the Starkeys.

We also conclude it was not error for the trial court to award postjudgment interest and costs. Travelers cites no authority for its argument that the award of postjudgment interest and costs was error. The successful party in the trial court is entitled to postjudgment interest. See TEX.R. CIV. P. 131. The trial court did not err by awarding postjudgment interest and costs to the Starkeys.

For these reasons, we overrule Travelers’ third issue, subpart A which deals with the trial court’s conclusions of law.

VI. Did the Trial Court Err in Striking Travelers’ Verification?

In its fourth issue, Travelers argues the trial court abused its discretion in striking Travelers’ verification to its supplemental answer in which it denied Jonathan’s wage rate. Commercial Insurance Company of Newark, New Jersey v. Lane, 480 S.W.2d 781 (Tex.Civ.App.-Dallas 1972, writ ref’d n.r.e.).

However, in Lane, the court contemplated that appellant’s workers’ compensation carrier would have the same access to the employer’s records as the employer and would investigate those records sufficiently to give the carrier personal knowledge of the wage rates. Id. at 783. In this case, however, Travelers has not shown that it conducted any investigation at all, but simply relied on two documents the adjuster reviewed. The adjuster testified he conducted no review of the employer’s wage records in determining Jonathan’s wage rate and did not know whether the wage rate included fringe benefits.⁹ The adjuster did not know whether Jonathan or a similarly-situated employee had worked for 210 days prior to the injury and did not *909 offer any basis for using the “just and fair” formula authorized by statute.¹⁰ Indeed, the adjuster testified he did not conduct any investigation into what constituted a just and fair wage in Jonathan’s case and that his affidavit was based only on the information from the employer’s first report of injury and claim for death benefits.

But even if the trial court had erred in striking Travelers’ verification, we conclude any error was harmless. After the trial court struck the verification, the Starkeys offered additional evidence of Jonathan’s wage rate. Mr. Starkey testified that he was project manager and Jonathan was crew supervisor for the same employer. Mr. Starkey testified he was familiar with the wage rate of workers similar to Jonathan who had been employed for a year and that they made approximately $72 a day before fringe benefits. Also, Travelers offered as evidence at trial the claim for death benefits which stated Jonathan’s weekly wage rate was $300. The parties stipulated that the maximum average weekly wage rate for workers’ compensation purposes at the time was $189. Based on this evidence, Jonathan’s average weekly wage exceeded the $189 maximum.¹¹

Travelers argues that striking the verification precluded it from presenting evidence of the wage rate. But Travelers does not cite to references in the record, and we have found none, where it offered other evidence of Jonathan’s wage rate and the trial court excluded it. Travelers does not argue or cite any authority that striking the verification was reasonably calculated to cause and probably did cause the rendition of an improper judgment or probably prevented it from properly presenting the case to this Court. TEX.R.APP. P. 44.1(a). We conclude the trial court did not abuse its discretion in striking Travelers’ verification of its supplemental answer. We overrule Travelers’ fourth issue.

VII. CONCLUSION

Having overruled Travelers’ issues, we affirm the judgment of the trial court.