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American Risk Funding Insurance Co. v. Lambert8/23/2001
Opinion by Justice Amidei
This is an appeal from a summary judgment granted in favor of Larry Lambert, Rogers Patino and Andres Garcia, hereafter referred to as "appellees" and/or "Lambert" against American Risk Funding Insurance Company, by and through Continental Casualty Company, hereafter referred to as "appellant" and/or "American Risk Funding."
Lambert sued Memc Pasadena, Inc., owner and operator of the plant premises where the appellees were injured, J. E. Merit Contractors, Inc., a general contractor which performed work and subcontracted U. S. Contractors, Inc. to perform construction work at the plant, and Albemarle Corporation, a prior owner of the plant, defendants, for personal injuries sustained in a chemical plant explosion while performing work as employees of U. S. Contractors, Inc. Appellant, the workers compensation carrier for U. S. Contractors, Inc., intervened for reimbursement for medical and indemnity benefits which it had paid to the appellees in the event the defendants were held liable. Although Lambert settled with defendants for 1.8 million dollars, Lambert denies appellant's subrogation claim because appellant had previously entered into a written contract with Lambert's employer waiving its subrogation rights. Appellant and Lambert filed motions for summary judgment. The trial court granted Lambert's motion for summary judgment.
Appellant presents five issues for review:
1. The waiver of subrogation is void because it is against public policy;
2. There is a fact issue regarding the defense of waiver;
3. The waiver was not intended to benefit appellees;
4. The waiver did not waive future benefits;
5. Appellant's common law claim for conversion is separate from any statutory right to subrogation.
Standard of Review
The standards for reviewing a summary judgment are set forth in Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985), as follows:
1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law;
2. In deciding whether there is a disputed fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true;
3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor. Id.
We should consider all grounds that the trial court rules on and may consider grounds that the trial court does not rule on in the interest of judicial economy. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex. 1996).
Issues Presented
Appellant's first issue contends that the enforcement of the waiver of a workers' compensation carrier's right to subrogation is void because it is against public policy.
Appellant outlines the history of some workers' compensation statutes which refer to a carrier's right of subrogation, arguing that the word "shall" in the statutes means the legislature intended the right of subrogation to be absolute. However, the question is not whether the right is absolute but whether it may be waived. Appellant cites no authority which prohibits a carrier from waiving its right to subrogation. One of the statutes cited by appellant actually approves waiver of subrogation where there is a judgment resulting from a trial but not where there is a compromise settlement agreement as in this case. See Tex. Civ. Prac. & Rem. Code ยง 95.004 (Vernon 1997).
Further, appellant claims its waiver of subrogation would allow appellees to ha
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