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Texas Department of Transportation v. Anderson6/22/2000
onsider the benefit accruing to the insurance carrier as a result of each attorney's service. The total attorney's fees may not exceed one-third of the insurance carrier's recovery.
Tex. Lab. Code Ann.ยง 417.003(c). Although TDOT does not challenge the finding that its attorneys actively participated, it does challenge the court's apportionment based on the benefit accruing to TDOT.
A proper apportionment turns upon the individual facts of the case and requires an assessment of the contributions of each attorney towards recovery of the subrogation amount. See University of Tex. Sys. v. Melchor, 696 S.W.2d 406, 408 (Tex. App.-Houston [14th Dist.] 1985, no writ). We review the apportionment and amount of the attorneys' fees award under an abuse-of-discretion standard. See City of Austin v. Janowski, 825 S.W.2d 786, 788 (Tex. App.-Austin 1992, no writ).
In the present case, TDOT's attorney scheduled none of the 14 depositions in the case. In the seven depositions that TDOT attended, its attorney asked a question in one. TDOT propounded no written discovery on the defendants and did not file any motions. Although 2/3 of the settlement was paid by the construction companies, TDOT did not intervene in the case against them, did not attend any depositions pertaining to them, and did not actively participate in that portion of the case. In the case against the driver, TDOT "work with" the Andersons' attorneys. A comparison of the respective roles of the attorneys shows that the Andersons' attorneys were primarily responsible for recovery of the subrogation amount. TDOT's attorney, while active, functioned in an ancillary capacity. The contention that TDOT received no benefit from counsel's efforts is not well taken. There is ample evidence that the Andersons' counsel procured the subrogation recovery from the defendants and that the recovery would have been nonexistent but for the Andersons' counsel's efforts. See Lummus, 871 S.W.2d at 538; Vanguard Ins. Co. v. Humphrey, 729 S.W.2d 344, 347-48 (Tex. App.-Houston [14th Dist.] 1987, writ ref'd n.r.e.); Melchor, 696 S.W.2d at 408; Houston Gen'l Ins. Co. v. Metcalf, 642 S.W.2d 79, 80 (Tex. App.-Tyler 1982, writ ref'd n.r.e.). Accordingly, the trial court did not abuse its discretion, and we overrule point three.
VII. CONCLUSION
We hold that the trial court did not err in its apportionment of the settlement proceeds among the Andersons, its method of calculation in distributing the settlement proceeds, and its discretionary award of 1/3 attorneys' fees out of TDOT's subrogation lien. Thus, we affirm the trial court's judgment.
PUBLISH
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