TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-95-00464-CV
Robert Schorovsky, Appellant
v.
SIR Lloyds Insurance Company and
Standard Financial Indemnity Corporation, Appellees
FROM THE DISTRICT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT,
NO. 92-17309, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING
Appellant Robert Schorovsky ("Schorovsky") sued appellees, SIR Lloyds Insurance Company ("SIR Lloyds") and Standard Financial Indemnity Corporation ("SFIC") seeking to recover damages deriving from appellees' alleged failure to timely pay certain workers' compensation benefits. Appellant contends that the trial court erred in granting summary judgment in favor of SIR Lloyds and SFIC. We will affirm the trial court's judgment.
BACKGROUND
On January 2, 1991, Schorovsky, while employed by TMBR/Sharp Drilling, Inc. ("TMBR"), was injured in an on-the-job accident. Schorovsky filed a workers' compensation claim with TMBR whereupon TMBR's workers' compensation carrier, SFIC, began paying Schorovsky temporary weekly income benefits. On September 10, 1991, SFIC was placed into temporary receivership and payments to appellant were temporarily suspended. Payments to Schorovsky were resumed approximately one month later and all accrued benefits were paid.
SFIC was placed in permanent receivership on March 12, 1992, whereupon the Commissioner of Insurance was appointed as the permanent receiver, and the responsibility for payment of all covered claims was transferred to Texas Property & Casualty Insurance Guaranty Association (the "Guaranty Association"). See Tex. Ins. Code Ann. art. 21.28-C, § 6 (West Supp. 1996). Payments to Schorovsky continued uninterrupted until July 30, 1992, when they were suspended on the ground that appellant was engaged in activities inconsistent with the alleged injuries for which he was receiving workers' compensation benefits. Schorovsky requested a benefit review conference as provided by the Texas Workers' Compensation Act. See Act of Dec. 13, 1989, 71st Leg., 2d C.S., ch. 1, § 6.12(a), 1989 Tex. Gen. Laws 53, repealed by Act of May 12, 1993, 73d Leg., R.S., ch. 269, § 5(2), 1993 Tex. Gen. Laws 1273. At the conference, Schorovsky and the Guaranty Association, on behalf of SFIC, settled the dispute regarding the suspension of payments by agreeing to pay him temporary income benefits for an eight-week period.
In addition to initiating the proceeding with the Texas Workers' Compensation Commission, Schorovsky filed the instant cause against SFIC and SIR Lloyds, (1) TMBR's former workers' compensation carrier, both in receivership, for damages allegedly resulting from the delays in payment of benefits from their receivership estates for certain unenumerated periods of time. (2) Schorovsky's petition was later amended to include Arnold Reyes, Special Deputy Receiver, who was served and answered. (3) The defendants moved separately for summary judgment. The trial court granted the motions, and Schorovsky now appeals. (4)
DISCUSSION
The standards for reviewing a motion for summary judgment are well established: (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 material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true; and (3) every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-549 (Tex. 1985). In addition, when a trial court does not specify the grounds on which it granted summary judgment, the judgment will be affirmed on any meritorious theory asserted in the motion. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989).
A. Standard Fidelity Insurance Company
By two points of error, Schorovsky contends that the trial court erred by granting SFIC summary judgment because (1) Schorovsky did not dismiss or release any of the claims he asserts in the instant cause in the settlement agreement he signed at the benefit review conference; and (2) Article 21.28, § 4(f) of the Texas Insurance Code (the "Code") (5) violates the Open Courts Doctrine of the Texas Constitution. See Tex. Const. art. I, § 13. We will address these points in reverse order.
In point of error two, Schorovsky argues that Article 21.28, § 4(f) of the Code, as applied to him, violates the Open Courts Doctrine because the statute prevents him from seeking judicial redress for the common law causes of action asserted in the instant cause. Schorovsky does not dispute that appellees showed themselves entitled to judgment based upon Article 21.28, § 4(f). Instead, he attacks the constitutionality of the statute. He did not raise this argument before the trial court and urges it now for the first time on appeal.
The Texas Rules of Civil Procedure require that the movant must specifically state in its motion the grounds entitling it to summary judgment. Tex. R. Civ. P. 166a(c). In response, the nonmovant must, in a written answer, expressly present to the trial court those issues that would defeat the movant's right to summary judgment. Tex. R. Civ. P. 166a(c); McConnell v. Southside Indep. School Dist., 858 S.W.2d 337, 341 (Tex. 1993); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979) ("the non-movant must expressly present to the trial court any reasons seeking to avoid movant's entitlement. . . ."). Issues not presented to the trial court will not to be considered on appeal as grounds for reversal. McConnell, 858 S.W.2d at 339-341, 343; Clear Creek, 589 S.W.2d at 678-679. Failure to provide such a response has the effect of limiting the non-movant's appeal to sufficiency of the grounds presented by the movant. McConnell, 858 S.W.2d at 343; Clear Creek, 589 S.W.2d at 678. Moreover, even constitutional challenges that were not presented to the trial court cannot be the grounds for reversal of summary judgment on appeal. See Riojas v. Phillips Properties, Inc., 828 S.W.2d 18, 22 (Tex. App.--Corpus Christi 1991, writ denied); Amroso v. Aldine Indep. Sch. Dist., 808 S.W.2d 118, 122 (Tex. App.--Houston [1st Dist.] 1991, writ denied).
SFIC's motion for summary judgment stated three cognizable grounds of recovery, one of which was based on Article 21.28, § 4(f) of the Code. In response, Schorovsky merely alleged that disputed, material fact issues existed and referred the trial court to the summary judgment evidence already in the record. A thorough review of the record reveals that no issue challenging the constitutionality of Article 21.28, § 4(f) was ever presented to the trial court. Thus, Schorovsky did not properly preserve this point of error in the trial court and cannot now raise the issue as a ground for reversal. We overrule point of error two.
In point of error one, Schorovsky contends that the trial court erred in granting summary judgment because as a matter of law he did not dismiss and/or release the claims he alleges in the instant cause in the settlement agreement between SFIC and Schorovsky.
SFIC moved for summary judgment on three grounds: (1) Article 21.28 § 4(f) of the Code bars Schorovsky's recovery; (2) Schorovsky's cause of action is based on the actions of the Receiver and must fail against the receivership estate; and (3) the issue of the suspension of benefits was fully adjudicated and settled by mutual agreement. In its order, the trial court did not indicate the specific grounds on which it granted summary judgment. Therefore, to prevail on appeal Schorovsky must successfully challenge each of the three grounds on which the trial court could have granted summary judgment. Rogers v. Ricane Enters., 772 S.W.2d 76, 79 (Tex. 1989); Malooly Bros., Inc. v. Napier, 416 S.W.2d 119, 121 (Tex. 1970).
Schorovsky's appeal challenges only the third basis presented in SFIC's motion, that the instant cause is barred by the settlement agreement between SFIC and himself. He does not make a general assignment of error complaining of the judgment generally, and he does not challenge the remaining two grounds asserted in SFIC's motion for summary judgment. Accordingly, the summary judgment must stand since the trial court's order could be properly based on one or more of the other grounds advanced by SFIC, which Schorovsky fails to challenge. Malooly, 416 S.W.2d at 121; Texas Power & Light Co. v. Cole, 313 S.W.2d 524, 529 (Tex. 1958); City of Deer Park v. State ex rel. Shell Oil Co., 275 S.W.2d 77, 84 (Tex. 1954); Thomson v. Norton, 604 S.W.2d 473, 476-77 (Tex. Civ. App.--Dallas 1989, no writ) (stating that where plaintiff does not attack any of several other independent grounds asserted in motion for summary judgment, a reviewing court has "no duty to examine and research these grounds without the assistance of counsel so as to determine whether any of them are supported by the record and by applicable rules of law"). We overrule appellant's first point of error.
B. SIR Lloyds Insurance Company
Appellant does not assert a point of error specifically directed at the judgment rendered in favor of SIR Lloyds except to the extent his first point of error contends there was no dismissal and/or release signed by appellant. He makes no argument on appeal directed at the judgment in favor of SIR Lloyds. We hold that the trial court properly granted summary judgment in favor of SIR Lloyds.
SIR Lloyds was TMBR's workers' compensation carrier before SFIC and before appellant's injury. Although appellant alleged differently below, SFIC and SIR Lloyds agree, and appellant admits on appeal, that SFIC was TMBR's workers' compensation carrier at the time of Schorovsky's accident on January 2, 1991. Schorovsky never asserted a benefits claim with SIR Lloyds, nor did the company ever settle with Schorovsky any of the claims disputed in this lawsuit. Instead, SFIC or its receiver was responsible for and did make all payments to Schorovsky for the entire period in which Schorovsky received workers' compensation benefits. Therefore, SIR Lloyds is not liable to Schorovsky on his claim or any delay in payment of workers' compensation benefits resulting from the January 2, 1991 accident.
SIR Lloyds moved for summary judgment on the basis that it was not the carrier at the time of Schorovsky's accident and, in any event, Article 21.28, § 4(f) bars his recovery. Although appellant, by controverting affidavit, claimed SIR Lloyds was his employer's carrier, he recognizes on appeal that SFIC was the insurer. Schorovsky does not otherwise challenge either basis for SIR Lloyds' motion and the judgment must stand. Accordingly, to the extent either of appellant's points of error apply to SIR Lloyds, they are overruled.
CONCLUSION
Having overruled both of appellant's points of error, we affirm the judgment of the trial court.
Marilyn Aboussie, Justice
Before Chief Justice Carroll, Justices Aboussie and Kidd
Affirmed
Filed: June 12, 1996
Do Not Publish
1. 1 SIR Lloyds is jointly owned and operated with SFIC, but the companies are separate entities and are in separate receivership estates.
2. 2 From Schorovsky's petition, it is unclear whether these unenumerated periods of time refer to the suspension of payments while SFIC was under temporary receivership, permanent receivership, or both. Schorovsky's administrative proceeding before the Texas Workers' Compensation Commission addressed only the suspension of payments while SFIC was in permanent receivership. Schorovsky has failed to exhaust his administrative remedies for any claims arising from the suspension of payments while SFIC was in temporary receivership. See Act of Dec. 13, 1989, 71st Leg., 2d C.S., ch. 1, § 6.61(f), 1989 Tex. Gen. Laws 60, repealed by Act of May 12, 1993, 73d Leg., R.S., ch. 269, § 5(2), 1993 Tex. Gen. Laws 1273. Therefore, we conclude that the instant cause concerns only the suspension of payments that occurred while SFIC was in permanent receivership.
3. 3 The original petition was filed against "SIR Lloyds of Dallas Insurance Company, in liquidation and/or receivership, Standard Financial Indemnity Corporation, Receiver." The amended petition named as defendants "SIR Lloyds Insurance Company, in Liquidation and/or Receivership, Arnold Reyes, Special Deputy Receiver AND/OR Standard Financial Indemnity Corporation, In Receivership, Arnold Reyes, Special Deputy Receiver."
4. 4 Although not named as a defendant, the Guaranty Association made a general appearance by filing a separate answer to Schorovsky's petition. In a separate appeal decided today in cause no. 03-95-00374-CV, we consider the trial court's order granting summary judgment in favor of the Guaranty Association.
5. 5 Article 21.28 section 4(f) of the Code provides in relevant part:
A Receiver and his agents and employees are not liable for and a cause of action may not be brought against any of them for an action taken or not taken by them relating to the adjustment, negotiation, or settlement of claims.
Tex. Ins. Code Art. 21.28, § 4(f) (West Supp. 1996).