Court of Appeals of Texas,

Houston (14th Dist.).

Frederick NICHOLS, Appellant,

v.

AETNA CASUALTY AND SURETY COMPANY, et al, Appellees.

No. B14-91-00593-CV.

|

June 18, 1992.

Before PAUL PRESSLER, MURPHY and CANNON, JJ.

O P I N I O N

PAUL PRESSLER, Justice.

*1 Appellant requests this court to review the trial court’s denial of his motion for partial summary judgment and the granting of appellees’ motion for summary judgment. Both motions are based on an interpretation of Leos v. State Employees Workers’ Comp. Div., 734 S.W.2d 341 (Tex. 1987). The judgment of the trial court is reversed and remanded.

On January 11, 1989, appellant injured both of his knees in an automobile accident while in the course and scope of his employment. As a result, he experienced the temporary loss of use of both knees for 28 weeks, from January 12 to July 24, when he returned to work. Appellant received workers’ compensation temporary total disability benefits from Aetna for this period. He continued receiving these benefits for an additional four weeks before Aetna learned that he had returned to work.

Four months later, appellant made a written request for an additional 28-weeks of compensation, asserting that he was entitled to cumulative compensation because he had sustained multiple specific injuries. He based this request on Leos v. State Employees Workers’ Comp. Div., 734 S.W.2d 341 (Tex. 1987). When Aetna refused to pay the additional benefits, appellant sued alleging that Aetna had breached its duty of good faith and fair dealing. The court heard both parties’ motions for summary judgment and granted Aetna judgment.

When both parties move for summary judgment, each must prove conclusively all of the elements of its cause of action or its defenses as a matter of law. Odeneal v. Van Horn, 678 S.W.2d 941, 941 (Tex. 1984); Federal Deposit Ins. Corp. v. Attayi, 745 S.W.2d 939, 941 (Tex. App.-Houston [1st Dist.] 1988, no writ). Neither party may prevail because of the failure of the other to discharge its burden. Federal Deposit Ins. Corp. v. Attayi, 745 S.W.2d at 941; Villarreal v. Laredo Nat’l Bank, 677 S.W.2d 600, 605 (Tex. App.-San Antonio 1984, writ ref’d n.r.e.). Further, when two summary judgment motions are before the trial court, and it grants one and overrules the other, the reviewing court may determine on appeal the propriety of the court’s ruling on each. The Atrium v. Kenwin Shops of Crockett, Inc., 666 S.W.2d 315, 317 (Tex. App.-Houston [14th Dist.] 1984, writ ref’d n.r.e.). Summary judgment evidence is considered in the light most favorable to the non-movants. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). The non-movant may defeat the opposing party’s motion by showing that at least one element of the movant’s cause has not been established with sufficient summary judgment evidence. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex. 1979).

Here, the summary judgment motions are interdependent as they involve each parties’ interpretation of the Texas Supreme Court’s holding in Leos. There, the Court was faced with the issue of interpreting Art. 8306, sec. 12 of the Workers’ Compensation Act. Now repealed, Art. 8306, sec. 12 stated, in relevant part:

*2 Where the employee sustains concurrent injuries resulting in concurrent incapacities, he shall receive compensation only for the injury which produces the longest period of incapacity; but this section shall not affect liability for the concurrent loss or the loss of the use thereof of more than one (1) member, for which member compensation is provided in this schedule, compensation for specific injuries under this law shall be cumulative as to time and not concurrent.

Overruling its prior decisions in United States Fire & Guaranty Co. v. London, 379 S.W.2d 299 (Tex. 1964) and Texas Employers Insurance Ass’n v. Patterson, 144 Tex. 573, 192 S.W.2d 255 (1946), the Court held “that the clear intent of the legislature in enacting Art. 8306, sec. 12 was to permit cumulative benefits for multiple specific injuries not to exceed 401 weeks.” Leos, 734 S.W.2d at 342.

The underlying facts of Leos, to which the Court applied its holding, were as follows: A jury determined that Mr. Leos had suffered a total loss of use of both feet for a five year period. The jury also found that the loss of use was not permanent. The trial court awarded Mr. Leos 250 weeks of accrued compensation This was 125 weeks for each foot. The court of appeals modified the judgment of the trial court to award a total of 125 weeks. The Texas Supreme Court reversed, and affirmed the judgment of the trial court awarding Mr. Leos compensation for 250 weeks.

Aetna contends that the Leos holding is expressly limited to the facts of that case and does not apply to the present situation. Aetna argues that Leos permits cumulative benefits only when the period of incapacity for multiple specific injuries exceeds the statutory maximum period permitted for a specific body member, and bases this interpretation of on the following language from the Court’s opinion:

It is apparent that the legislature took into account a situation such as occurred here, that is, when a worker suffers injury resulting in loss of use of multiple body members for a period of time in excess of the longest period designated in the Act for loss of use of any one of those members. The clear wording of the Act provides for cumulative periods of incapacity in such situations.

Leos, 734 S.w.2d at 342-43. Aetna argues that since appellant was actually incapacitated by the loss of use of both knees for only 28 weeks, and since this actual period of disability did not exceed the statutory maximum period of 200 weeks for the loss of use of one leg, see TEX. REV. CIV. STAT. ANN. art. 8306, § 12 (Vernon 1989), appellant is not entitled to cumulative benefits under Leos.

Contrary to Aetna’s interpretation, there is nothing in Leos which limits its holding to its specific facts. The Court stated:

We hold, contrary to the reasoning of Patterson and London, that the clear intent of the legislature in enacting Art. 8306, sec. 12 was to permit cumulative benefits for multiple specific injuries not to exceed 401 weeks.

*3 Leos, 734 S.W.2d at 342. To paraphrase, as did another court of appeals, Leos interpreted Art. 8306, sec. 12 to provide that compensation for specific injuries is not restricted to the longest period of incapacity, but rather accrues on a per se basis for each specific injury, with maximum benefits of 401 weeks. See City of Austin v. Miller, 767 S.W.2d 284, 290 (Tex. App.-Austin 1989, writ denied). Aetna’s claim that Leos established a “threshold of incapacity” is incorrect.

Two courts of appeals have supported such an interpretation of Leos. In City of Austin v. Miller, 767 S.W.2d 284 (Tex. App.-Austin 1989, writ denied), the claimant suffered a total loss of use of his right foot for 137 weeks and a total loss of use of his left foot for 186 weeks. The statutory maximum period for the loss of use of a foot is 125 weeks. The trial court awarded Mr. Miller 250 weeks compensation, aggregating the maximum period allowed for each foot separately. The court of appeals affirmed. The fact that Mr. Miller’s actual period of disability exceeded the statutory maximum was merely incidental to his entitlement to cumulative benefits.

In Reyes v. Transportation Ins. Co., 783 S.W.2d 801 (Tex. App.-San Antonio 1990, writ denied), Mr. Reyes sustained a total loss of use of both hands for a period of 86 weeks. The statutory maximum period for the loss of use of a hand is 150 weeks. The court of appeals held that the loss of use of both hands constituted concurrent multiple specific injuries and, as such, Mr. Reyes was entitled to the cumulative award of 172 weeks of benefits. There was no requirement that his actual period of disability exceed the statutory maximum.

Appellant here was entitled to cumulative benefits for the loss of use of both knees. Since Aetna’s motion for summary judgment was based upon an incorrect interpretation of Leos, the trial court improperly granted summary judgment in Aetna’s favor. Aetna is not entitled to summary judgment as a matter of law.

Appellant states correctly, in his motion for summary judgment, that he is entitled to cumulative benefits under Leos. For appellant to be entitled to summary judgment, however, he must prove conclusively that Aetna breached its duty of good faith and fair dealing in refusing to pay cumulative benefits. To do this, appellant must establish: (1) The absence of a reasonable basis for denying payment of the benefits of the policy; and (2) That Aetna knew or should have known that there was not a reasonable basis for denying the claim. Aranda v. Insurance Co. of North America, 748 S.W.2d 210, 213 (Tex. 1988).

The evidence in support of appellant’s motion is insufficient to establish as a matter of law his entitlement to summary judgment. The affidavit of Mark Huffman, appellant’s attorney in the underlying claim for workers’ compensation benefits, states that Huffman believes Aetna “had no justification to refuse to pay cumulative disability compensation based upon Leos and that its refusal to so pay when due and upon demand constituted a breach of its duty of good faith and fair dealing.” TEX. R. CIV. P. 166a(c) permits the granting of summary judgment on the uncontroverted testimonial evidence of an expert witness as to subject matter for which the trial judge must be guided solely by the opinion testimony of experts, so long as the evidence is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted. Here, even if the Huffman affidavit were sufficient on its face, such affidavit is controverted by the affidavit of Ed Hennessy, Aetna’s expert. Appellant’s objections to this affidavit on the grounds that it fails to show a basis for personal knowledge, that the documents upon which Hennessy relied were not before the court, and that it fails to show affirmatively that Hennessy is competent to testify on such matters are without merit. Accordingly, the trial court did not err in denying appellant’s motion for summary judgment. Both appellant’s and Aetna’s summary judgment evidence raised fact questions concerning the reasonableness of Aetna’s denial which must now be fully developed at trial.

*4 The judgment of the trial court granting summary judgment for Aetna is reversed, and the cause is remanded for proceedings consistent with this opinion.

DO NOT PUBLISH-TEX. R. APP. P. 90.