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Texas Department of Transportation v. Anderson6/22/2000
ion of settlement proceeds is a question of fact. See U.S. Fire Ins. Co. v. Hernandez, 918 S.W.2d 576, 579 (Tex. App.-Corpus Christi 1996, writ denied). Thus, subrogation and reimbursement of the carrier when there are multiple plaintiffs, some of whom are workers' compensation beneficiaries and some of whom are not, may create an apportionment problem.
IV. PROPRIETY OF APPORTIONMENT TO ADULT CHILDREN
TDOT argues in its first point that the trial court should not have awarded Clifford and Cherie 50% of the settlement monies because the evidence did not support its finding that such a distribution was "fair and reasonable." TDOT asserts that the evidence does not show that Clifford and Cherie suffered damages as a result of Dorothy's death.
Findings of fact entered in a case tried to the court have the same force and dignity as a jury's answers to jury questions. See Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991). The trial court's findings of fact are reviewable for legal and factual sufficiency of the evidence to support them by the same standards that are applied in reviewing evidence supporting a jury's answer. See Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994).
In reviewing the legal sufficiency of the evidence, we consider all of the evidence in the light most favorable to the Andersons and indulge every reasonable inference from the evidence in their favor. See Formosa Plastics Corp. v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998). If there is more than a scintilla of such evidence to support the finding, the claim is sufficient as a matter of law. See id. In reviewing the factual sufficiency of the evidence, we consider all of the evidence and determine whether the evidence supporting the finding is so weak or the evidence to the contrary is so overwhelming that the answer should be set aside and a new trial ordered. See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407-08 (Tex.), cert. denied, 525 U.S. 1017 (1998); See Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).
The Andersons testified concerning the damages they sustained because of Dorothy's death. Tony testified that Dorothy would do "anything" for her children and five grandchildren. She saw Clifford and Cherie every "three or four weeks," and they spent a lot of time with Dorothy. Dorothy's death affected Clifford and Cherie. Clifford testified that Dorothy "was always there" for him and frequently offered him financial support. Cherie described Dorothy as her "rock" and "best friend." Dorothy was always there for Cherie, especially when Cherie's son was diagnosed with a brain tumor.
These types of damages are difficult to quantify, and it is problematic for us to judge the damages Clifford and Cherie suffered. The trial court was in the best position to judge credibility and other intangible factors that would bear on assessing damages for mental anguish and loss of society. See Texas Workers' Compensation Ins. Fund v. Serrano, 985 S.W.2d 208, 211-12 (Tex. App.-Corpus Christi 1999, pet. denied). Tony, Clifford, and Cherie testified as to the loss Clifford and Cherie suffered after Dorothy was killed and how that affected their lives. We hold that this evidence is legally and factually sufficient to support the trial court's apportionment.
TDOT also argues that the effect of the apportionment deprives TDOT from recovering a greater offset in future death benefit payments to Tony. It is the effect of an apportionment, and not its intent, that determines its propriety. See Texas Workers' Compensation Ins. Fund v. Travis, 912 S.W.2d 895, 898 (Tex. App.-Fort W
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