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Texas Department of Transportation v. Anderson6/22/2000
orth 1995, no writ). But the evidence here is sufficient to support a damages award in favor of Clifford and Cherie. As TDOT points out, there have been situations where apportionments have been held to improperly circumvent the statute and the carrier's right to subrogation. See, e.g., id. at 899; Wright, 886 S.W.2d at 341-42. However in those cases, the beneficiaries were awarded a disproportionately smaller part of the settlement proceeds than other individual plaintiffs. The present allocation of 25% to Clifford and 25% to Cherie is not so disproportionate as to indicate that TDOT's subrogation right has been improperly circumvented. To hold as TDOT requests would equate to a holding that nonbeneficiary plaintiffs could never recover settlement proceeds because such a recovery would lessen the carrier's subrogation. We overrule TDOT's first point.
V. METHOD OF CALCULATION
In its second point, TDOT argues that the trial court erred in calculating Tony's recovery:
he [correct] method of calculation is to first subtract the workers' compensation lien from the settlement monies apportioned to the workers' compensation beneficiary. Next, subtract the beneficiary's attorney expenses. Then subtract the beneficiary's attorney fees as per the client's contract. The remaining amount belongs to the beneficiary which, in this case, will be used as an offset against his future weekly death benefits.
"The net amount recovered by a claimant in a third party action shall be used to reimburse the insurance carrier for benefits, including medical benefits, that have been paid for the compensable injury ." Tex. Lab. Code Ann. § 417.002(a). "Net amount recovered" is the amount recovered by the beneficiary after deduction of the beneficiary's attorneys' fees and expenses. See Texas Workers' Compensation Ins. Fund v. Alcorta, 989 S.W.2d 849, 852 (Tex. App.-San Antonio 1999, no pet.); Bridges, 790 S.W.2d at 833. Thus, the trial court correctly deducted Tony's portion of the Andersons' attorneys' fees and expenses before determining the amount of TDOT's reimbursement. We overrule point two.
VI. ATTORNEYS' FEES AWARDED FROM LIEN
In its final point, TDOT asserts that because the Andersons' attorneys' efforts were of no benefit at all to TDOT's recovery, and were in fact detrimental, the trial court abused its discretion in deducting the 1/3 attorneys' fees award from TDOT's lien.
As compensation for pursuing a third-party action, a beneficiary's attorney may recover fees from a governmental entity's worker's compensation lien. See Tex. Lab. Code Ann. § 417.003; University of Tex. v. Bishop, 997 S.W.2d 350, 354 (Tex. App.-Fort Worth 1999, pet. filed). They are recoverable if (1) the carrier hires an attorney to represent it, but the attorney does not actively represent it; (2) the beneficiary's attorney represents both the beneficiary and the carrier; or (3) the carrier is actively represented by its attorney who participates in obtaining a recovery. See Tex. Lab. Code Ann. § 417.003; Texas Dep't of Transp. v. Wilson, 980 S.W.2d 939, 941 (Tex. App.-Fort Worth 1998, pet. denied); City of Arlington v. Lummus, 871 S.W.2d 536, 537 (Tex. App.-Fort Worth 1994, writ denied).
The trial court found that TDOT's attorneys actively participated in the case; thus, the trial court was required to allocate the fees:
If an attorney actively representing the insurance carrier's interest actively participates in obtaining a recovery, the court shall award and apportion between the claimant's and the insurance carrier's attorneys a fee payable out of the insurance carrier's subrogation recovery. In apportioning the award, the court shall c
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