holding that the twenty-day filing deadline in the predecessor to section 410.252(a) was a general statute of limitations with which compliance was required to invoke the trial court=s jurisdiction
How later courts described this case
- holding that the twenty-day filing deadline in the predecessor to section 410.252(a) was a general statute of limitations with which compliance was required to invoke the trial court=s jurisdiction
- holding that the filing deadline was tolled where the parent company filed suit rather than the subsidiary, but the defendant was not misled or disadvantaged by the mistake
- holding provision setting time period in which to appeal Industrial Accident Board decision to be a general statute of limitation
- noting that the proper party to a workers’ compensation appeal is the insurance carrier, not the employer
Written by the judges who cited it.
The opinion
KILGARLIN, Justice,
dissenting.
I respectfully dissent. The majority opinion is more than judge-made law. It amounts to a judicial amendment of an act of the legislature.
Article 8307, section 5, and article 8309d, section 11, Texas Revised Civil Statutes Annotated, both read in pertinent part as follows:
Any interested party who is not willing and does not consent to abide by the final ruling and decision of said Board shall, within twenty (20) days after the rendition of said final ruling and decision by said Board, file with said Board notice that he will not abide by said final ruling and decision. And he shall within twenty (20) days after giving such notice bring suit ... to set aside said final ruling and decision ...
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If any party to such final ruling and decision of the Board, after having given notice as above provided, fails within said twenty (20) days to institute and prosecute a suit to set the same aside, then said final ruling and decision shall be binding upon all parties thereto; ...
Jessie Mae Ealey and Pacific Employers’ Insurance Company were the only parties before the Industrial Accident Board in respect to Ealey’s claim for workers’ compensation benefits. The Board rendered an award on April 1, 1981. On April 6, 1981, Pacific Employers’ gave notice of its dissatisfaction with the award and its intent to appeal. It was not until June 17,1981, that Pacific Employers’ Insurance Company brought suit. The statutory language is clear and unequivocal. When, more than twenty days after April 6, 1981, Pacific Employers’ Insurance Company failed to file suit to set aside the Board’s award, the award of the Board became final. The statute permits no other construction.
The majority opinion totally ignores Commercial Standard Fire and Marine Insurance Co. v. Martin, 501 S.W.2d 430 (Tex.Civ.App.—Texarkana 1973), judgment modified, 505 S.W.2d 799 (Tex.1974), wherein both this court and the court of appeals ruled that the trial court never acquired jurisdiction over a worker’s compensation case because the party sued had not been a party to the proceedings before the Industrial Accident Board. The court of appeals reversed and rendered judgment in favor of that carrier. This court modified the judgment, by ordering a reversal and dismissal of the cause of action.
Also not discussed in the majority opinion is Garcia v. Employers’ Casualty Co., 519 S.W.2d 685 (Tex.Civ.App. — Amarillo 1975, writ ref’d n.r.e.). In that case Employers’ Casualty Company had been the party in the Industrial Accident Board. However, Garcia named Texas Employers’ Insurance Association as the defendant in a suit to set aside the Board’s award. The court of appeals held that Texas Revised Civil Statutes Annotated article 8307, section 5, was a general statute of limitation and compliance with its provisions was mandatory and *55 jurisdictional. Citing Martin as authority, the court of appeals held that the trial court never acquired jurisdiction over Employers’ Casualty and, accordingly, the cause should have been dismissed as to that defendant.
The majority opinion does cite Transport Insurance Co. v. Jaeger, 534 S.W.2d 389 (Tex.Civ.App.—Houston [1st Dist.] 1976, writ ref’d n.r.e.), but says that the case is distinguishable from the one at bar. The distinction, however, that the majority would make is that the employer, in whose name suit was brought to set aside the Board’s award, was not an interested party within the meaning of the statute. If Jae-ger’s employer was not an interested party, then how can it be said that Insurance Company of North America was an interested party in the Ealey claim, when it is undisputed that Pacific Employers’ was the only carrier involved in the Board proceedings.
What the majority seems to be saying is that it is all right to misname one’s self, even though the misnamed party was not before the Industrial Accident Board, if no one is misled or placed at a disadvantage. While, as I have stated, I do not think this court is entitled to repeal a legislative act, if this is to become the standard of law-, it ought to be applied equally. For example, in Garcia , Texas Employers’ bore the same relationship to Employers’ Casualty as does Pacific Employers’ to I.N.A. T.E.I.A. had the same officers, same telephone numbers, same offices as did Employers’ Casualty, and Employers’ Casualty could not have been misled by service upon T.E.I.A.
I would submit that the majority is creating a double standard of law. It is all right for an insurance carrier to misname itself if no one is misled, but it is not all right for a claimant to misname an insurance carrier, even if no one is misled. While I am still of the position that the award of the Board was final before Pacific Employers’ brought suit, if the majority is correct, then let us at least have the same standard for injured workers as the majority here establishes for insurance carriers.
CAMPBELL, J., joins in this dissent.