Supreme Court of Texas.
TEXAS MUTUAL INSURANCE COMPANY, Petitioner,
P. Lance MORRIS, Respondent.
Oct. 26, 2012.
Attorneys & Firms
*147 Murry B. Cohen, Akin Gump Strauss Hauer & Feld LLP, Houston, TX, for Texas Mutual Insurance Company.
Michael P. Doyle, Doyle Raizner LLP, Houston, TX, for Morris P. Lance.
Lance Morris injured his back while working and his employer’s workers’ compensation insurer, Texas Mutual Insurance Company (TMIC), accepted the injury as compensable. Three years later when it was discovered that Morris had herniated lumbar intervertebral discs, TMIC disputed whether they were causally related to the original injury. The Texas Department of Insurance Division of Workers’ Compensation (the division) determined that the disc herniations were related to the original injury and ordered TMIC to pay medical benefits, which it did. Morris later sued TMIC for damages caused by its delay in paying benefits. The trial court rendered judgment for Morris, and the court of appeals affirmed. Based on our recent decision in Texas Mutual Insurance Co. v. Ruttiger, 381 S.W.3d 430 (Tex.2012), we reverse and render judgment for TMIC.
On June 12, 2000, Morris injured his back while working for the Justin Community Volunteer Fire Department. The Fire Department reported to TMIC that Morris had strained his back while working. TMIC accepted the injury as compensable and paid benefits. In March of 2003, Morris went to a hospital emergency room with severe back pain and was diagnosed as having herniated lumbar discs. On April 1, 2003, Dr. Charles Neblett requested TMIC to preauthorize lumbar herniated discs were not causally related to the March 2000 injury.
Morris eventually requested, and the division held, two benefit review conferences to attempt to resolve the compensability dispute. See TEX. LAB.CODE § 410.021. The dispute was not resolved so a contested case hearing was held. See id. § 410.025. The hearing officer concluded that Morris’s original injury caused or aggravated the lumbar disc herniations, they were compensable, and TMIC was liable for compensation. The division specifically ordered TMIC to pay medical benefits. TMIC then paid Morris both medical and income benefits relating to the disc problems.
Morris sued TMIC for violating TEX. BUS. & COM.CODE §§ 17.41–.63. His suit was based on TMIC’s denial of compensability and delay in paying benefits until ordered to do so by the division. A jury found for Morris and awarded damages for past mental anguish, damage to his credit reputation, additional damages because TMIC acted knowingly, and attorney’s fees. The trial court rendered judgment that Morris recover under his Insurance Code claim. The judgment also provided that if the Insurance Code claim failed on appeal, he could elect to recover under the common law claim or the DTPA claim.
The court of appeals concluded that there was no evidence to support the damages awarded for loss of credit reputation. It reversed the trial court’s judgment in part and remanded for further proceedings. 287 S.W.3d 401, 434–35.
In this Court TMIC seeks reversal of that part of the court of appeals’ judgment favorable to Morris. It advances multiple reasons, but we address only four of them.
We first consider an argument TMIC did not raise in the courts below: the trial court did not have jurisdiction over Morris’s suit because he did not exhaust administrative remedies available to him under the Workers’ Compensation Act (Act). Fodge, 63 S.W.3d 801; and (3) his actions and inactions of which TMIC complains are not jurisdictional matters, but rather go to the question of whether he mitigated his damages and TMIC waived that issue by not raising it in the lower courts.
We held in Id. at 804. But we did not address whether the timing of a claimant’s utilization of the Act’s procedures is an issue that must be determined by the division before a trial court has jurisdiction over a claim for delay damages.
The Act contains certain deadlines that must be met. It specifies that an injured employee must give notice of injury to the employer not later than the thirtieth day after the injury occurs. § 409.004. But TMIC points to no provision in the Act that specifies time limits for claimants to request benefit review conferences, penalizes claimants if they delay in requesting them, or requires the division to determine whether employees’ benefit review conference requests are timely. The section of the Act addressing requests for benefit review conferences provides only that the division may “[o]n receipt of a request from a party or on its own motion” direct the parties to meet in a benefit review conference. Id. § 410.023(a). Given the silence of the Act as to time constraints for claimants to request a benefit review conference or the effect of delay in filing one, we conclude that Morris is correct. The same goes for interlocutory orders and delays in connection with contested case hearings.
We conclude that under this record, Morris’s delays in requesting division action were not jurisdictional in nature, but rather were matters of whether he mitigated his damages. Thus his delays in seeking relief from the division did not deprive the trial court of jurisdiction. Because of our disposition of the appeal we do not further address the timeliness of Morris’s seeking relief from the division.
Next we consider TMIC’s argument that causes of action for unfair claims settlement practices under Ruttiger we agree with TMIC that Morris cannot recover on either of these claims.
Finally, we address whether Morris can recover under Ruttiger, 381 S.W.3d at 446. We agree with TMIC that there is no evidence it misrepresented its policy.
Morris’s DTPA claim depends on the validity of his Insurance Code claim. Because his claims under the Insurance Code fail, he cannot recover on his DTPA claim. See id. at 446.
We grant TMIC’s petition for review. Without hearing oral argument, see TEX.R.APP. P. 59. 1, we reverse the court of appeals’ judgment and render judgment that Morris take nothing.
The Legislature has re-codified Insurance Code article 21.21 and placed the relevant provisions in Insurance Code Chapter 541. References to Insurance Code provisions will be to the re-codified sections.
Morris asserts that TMIC failed to preserve its challenge to his Insurance Code claim. But TMIC objected to that question in the jury charge and challenged the legal sufficiency of the evidence to support that finding in the court of appeals. We conclude that it preserved the challenge.