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National Union Fire Ins. Co. of Pittsburgh, PA. v. Reyna
June 8, 1995
897 S.W.2d 777
Texas Supreme Court
Published Opinion

National Union Fire Ins. Co. of Pittsburgh, PA. v. Reyna

Supreme Court of Texas.



Jesus V. REYNA, Respondent.

No. 94–1204.


May 11, 1995.


Rehearing Overruled June 8, 1995.

Attorneys & Firms

*778 Jeffrey S. Alley, for petitioner.

Joel Fry, El Paso, for respondent.



This case involves an appeal from a judgment of the Texas Workers’ Compensation Commission in favor of the employee claimant. The employer’s insurer sought a trial de novo to review the award. The trial court rendered a take-nothing judgment in favor of the insurer because the claimant had failed to file his claim within one year of injury. Upon the claimant’s appeal, the court of appeals reversed the judgment on the ground that the insurer’s verified pleading was supported by an inadequate affidavit under 883 S.W.2d 368. We disagree, and reverse and render judgment for the insurer.

Jesus V. Reyna, an employee of Mountain Pass Canning Company, was injured while working on December 20, 1985. Reyna did not file a claim with the Commission until August 30, 1990, over four and a half years later. The Texas Workers’ Compensation Act required that an employee file his claim for compensation within one year of the date of injury, or show good cause for filing later than the one-year anniversary of the date of injury. TEX.LAB.CODE § 410.303–.304 (Supp.1995)). In the trial court, Reyna pleaded that he had timely filed a claim with the Commission, or in the alternative, that he had good cause for filing his compensation claim late. National Union answered and denied that Reyna had filed his claim on time and that he had good cause for late filing. National Union attached to its answer an affidavit signed and sworn to by Michael McLean, National Union’s attorney, stating that the “statements and denials ... of [National Union]’s answer are true.”

On the day of trial, Reyna objected to National Union’s verified denial, claiming that the affidavit did not show that McLean had personal knowledge of the facts alleged. Reyna later objected to the submission of a jury question on “good cause,” arguing that no fact issue had been raised by National Union’s defective denial. The trial judge overruled both objections. Following trial, the jury found that Reyna did not have good cause for filing his claim with the Commission after the one-year deadline. Accordingly, the trial court rendered a take-nothing judgment against Reyna. Reyna appealed. He argued that the trial court erred in overruling his objections to the adequacy of McLean’s affidavit in support of National Union’s verified pleading. The court of appeals, with one judge concurring, agreed. It reversed and remanded the case for a new trial on the ground that McLean’s affidavit was defective because it failed to show that McLean had personal knowledge. 883 S.W.2d at 373.

We agree with the court of appeals that McLean’s affidavit was not made with personal knowledge that Reyna lacked good cause for having filed his claim later than one year from the date of injury. We reverse *779 the judgment of the court of appeals, however, because subsection (g) of Rule 93.

The pertinent parts of Rule 93 state:

A pleading setting up any of the following matters, unless the truth of such matters appear of record, shall be verified by affidavit.


(13) In the trial of any case appealed to the court from the Industrial Accident Board [now known as the Texas Workers’ Compensation Commission] the following, if pleaded, shall be presumed to be true as pleaded and have been done and filed in legal time and manner, unless denied by verified pleadings:

. . . . .

(b) Claim for compensation.

. . . . .

(g) That there was good cause for not filing claim with the Industrial Accident Board within the one year period provided by statute.

. . . . .

A denial of any of the matters set forth in subdivisions (a) or (g) of paragraph 13 may be made on information and belief.

Rule 93(13), and that McLean’s affidavit was inadequate.

We hold that subsection (g) of Rule 93(13)(g) allows such a pleading in denial to be verified by a party’s affidavit made on information and belief. Thus, McLean’s affidavit adequately verified National Union’s denial of Reyna’s compensation claim, based on Reyna’s failure to file his claim on time and his lack of good cause for untimely filing.

Pursuant to Rule 170 of the Texas Rules of Appellate Procedure, a majority of this Court grants National Union’s application for writ of error, and without hearing oral argument, reverses the judgment of the court of appeals and renders judgment reinstating the trial court’s order that Reyna take nothing.

End of Document