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American Risk Funding Insurance Co. v. Lambert8/23/2001
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Appellant's second issue is overruled.
Appellant's third issue claims the waiver was not intended to benefit the appellees.
Appellant argues generally that appellees are not third-party beneficiaries of the contractual waiver, but cites no authority to support this proposition. The employees' cause of action against the third party is burdened by the subrogation rights of the carrier. The third party having the benefit of the waiver is free to negotiate a settlement with the injured employee without having to pay additional to the employee to cover any subrogation of compensation of workers' compensation benefits. The companies named in the waiver would benefit as intended and contracted. It is immaterial whether the injured employees benefitted. The fact the third parties' settlement amount is lowered doesn't necessarily mean the employee is benefitted. The proof shows the intent of the parties is that the waiver applies to the appellant's subrogation claim for workers' compensation benefits in this case. Id. A reasonable construction of the language in the waiver that it shall not operate directly or indirectly to benefit anyone not named in the schedule is that the parties did not intend to call for an impossible condition precedent, but that it intended a rational, reasonable and probable contract which a contractor and its workers' compensation carrier would naturally make to apply to a settlement as made in this case. Republic Nat'l Bank v. Northwest Nat'l Bank, 578 S.W.2d 109, 115 (Tex. 1978).
Appellant's third issue is overruled.
Appellant's fourth issue claims that contractual waiver did not operate to waive appellant's right to seek a credit for future benefits. The right to subrogation may be changed by contract and the workers' compensation carrier may waive its claim to future compensation. Otis Elevator, 185 S.W.2d at 119-20. A waiver of the carrier's subrogation rights waives its right to reimbursement and its right to future credits. Buckland, 882 S.W.2d at 445.
Appellant's fourth issue is overruled.
Appellant's fifth issue claims that appellant had a common law conversion claim separate from its subrogation claim, which was erroneously decided against it by the trial court by the granting of summary judgment in favor of appellees. Appellant cites Autry v. Dearman, 933 S.W.2d 182 (Tex. App.-Houston [14th Dist.] 1996, writ denied), which only involves a cause of action for conversion against one who accepts benefits of the proceeds of a third-party settlement, while having notice of the carrier's subrogation rights, but doesn't involve a contractual waiver as in this case. The appellant, by waiving its statutory claim, has no common law claim. Buckland, 882 S.W.2d at 445; Johnson v. Second Injury Fund, 688 S.W.2d 107, 108 (Tex. 1985). (There is no common law equitable right of subrogation).
Appellant's fifth issue is overruled.
The judgment of the trial court is affirmed.
Publish. tex. R. app. P. 47.3.
Opinion delivered and filed this the 23rd day of August, 2001.
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