Court of Appeals of Texas,
Waco.
AMERICAN HOME ASSURANCE COMPANY, Appellant,
v.
Sherrill A. McDONALD, Appellee.
No. 10–04–00267–CV.
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Nov. 9, 2005.
Attorneys & Firms
*767 Elliott Klein, Hoffman Kelley, Dallas, for appellant.
Gary L. Rodriguez, Austin, for appellee.
Before Chief Justice REYNA.
OPINION
BILL VANCE, Justice.
American Home Assurance Company (“American Home”) sought judicial review of a workers compensation decision1 involving Sherrill McDonald (“McDonald”). McDonald filed a counterclaim for attorney’s fees under the TEX. LAB.CODE ANN. § 408.221(c) (Vernon Supp.2004–05).
After six months of discovery, American Home non-suited its claim. McDonald then filed a Motion for Summary Judgment on the counterclaim for attorney’s fees, which the trial court granted. American Home now appeals from that judgment, arguing that McDonald does not meet the definition of “prevailing party” under the statute. To be entitled to attorney’s fees, it says, McDonald must have won a judgment on the merits of the case and not rely on American Home’s voluntary change in conduct with the filing of its non-suit.
We review a trial court’s summary judgment de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003).
While this appeal has been pending, the El Paso and Amarillo Courts of Appeals have decided this issue, both holding that a claimant in McDonald’s position is a “prevailing party” entitled to attorney’s fees under American Home Assurance Co. v. Vaughn, 2005 WL 2396833, 2005 Tex.App. LEXIS 7988 (Tex.App.-Amarillo Sept. 29, 2005, no. pet. h.).2 We agree with those decisions.
The trial judge properly awarded attorney’s fees to McDonald for trial and appellate expenses. We overrule the issue and affirm the judgment.
Chief Justice GRAY, concurring.
TOM GRAY, Chief Justice, concurring.
Based on the analysis by Chief Justice Quinn of the meaning of “prevailing party” in Am. Home Assur. Co. v. Vaughn, No. 07–04–0349–CV, 2005 WL 2396833, at *3, 2005 Tex.App. LEXIS 7988, *7–9 (Tex.App.-Amarillo Sept. 29, 2005, no pet. h.),1 I concur in the judgment.
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Footnotes |
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| 1 |
Specifically, American Home sought reimbursement on a claim of overpayment of benefits to McDonald. |
| 2 |
But see Cigna case was distinguished by both the El Paso and Amarillo Courts. |
| 1 |
The same issue was first decided by the El Paso Court of Appeals in Cigna Ins. Co. v. Middleton, 63 S.W.3d 901 (Tex.App.-Eastland 2001, pet. denied). |