Jarrod S. Rozean v. The State of Texas--Appeal from 124th District Court of Gregg County

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Laws-info.com » Cases » Texas » 6th District Court of Appeals » 2003 » Jarrod S. Rozean v. The State of Texas--Appeal from 124th District Court of Gregg County

State: Texas

Court: Texas Northern District Court

Docket No: 06-03-00103-CR

Case Date: 12/01/2003

Plaintiff: Melissa Frizzell

Defendant: The State of Texas--Appeal from 114th District Court of Smith County

Preview:American Home Assurance Company v. Sherrill A.
McDonald--Appeal from 128th District Court of
Orange County
MAJORITY | MAJORITY
IN THE
TENTH COURT OF APPEALS
No. 10-04-00267-CV
American Home Assurance Company,
Appellant
v.
Sherrill A. McDonald,
Appellee
From the 128th District Court
Orange County, Texas
Trial Court No. A-030197-C
Opinion
American Home Assurance Company ( American Home ) sought judicial review of a workers compensation
decision[1] involving Sherrill McDonald ( McDonald ). McDonald filed a counterclaim for attorney s fees under the
Texas Labor Code. Section 408.221(c) provides for reasonable and necessary attorney s fees as provided by Subsection
(d) incurred by the claimant as a result of the insurance carrier s appeal if the claimant prevails on an issue on which
judicial review is sought by the insurance carrier. Tex. Lab. Code Ann. 408.221(c) (Vernon Supp. 2004-05).
After six months of discovery, American Home non-suited its claim. McDonald then filed a Motion for Summary
Judgment on the counterclaim for attorney s fees, which the trial court granted. American Home now appeals from that
judgment, arguing that McDonald does not meet the definition of prevailing party under the statute. To be entitled to
attorney s fees, it says, McDonald must have won a judgment on the merits of the case and not rely on American
Home s voluntary change in conduct with the filing of its non-suit.
We review a trial court s summary judgment de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211,
215 (Tex. 2003).
While this appeal has been pending, the El Paso and Amarillo Courts of Appeals have decided this issue, both holding
that a claimant in McDonald s position is a prevailing party entitled to attorney s fees under section 408.221(c). Pacific
Employers Ins. Co. v. Torres, 2005 WL 2044936, 2005 Tex. App. LEXIS 7019 (Tex. App. El Paso August 25, 2005,
file:///C|/Users/Peter/Desktop/opinions/PDFs1/6985.html[8/20/2013 7:22:14 PM]

no pet. h.); American Home Assurance Co. v. Vaughn, 2005 WL 2396833, 2005 Tex. App. LEXIS 7988 (Tex. App.
Amarillo Sept. 29, 2005, no. pet. h.).[2] We agree with those decisions.
The trial judge properly awarded attorney s fees to McDonald for trial and appellate expenses. We overrule the issue
and affirm the judgment.
BILL VANCE
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Chief Justice Gray concurring)
Affirmed
Opinion delivered and filed November 9, 2005
[CV06]
[1] Specifically, American Home sought reimbursement on a claim of overpayment of benefits to McDonald.
[2] But see Cigna Ins. Co. v. Middleton, 63 S.W.3d 901 (Tex. App. Eastland 2001, pet. denied). The Cigna case was
distinguished by both the El Paso and Amarillo Courts.
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