# Lowrey v. University of Texas Medical Branch

> Texas Court of Appeals, 8th District (El Paso) · August 26, 1992 · 837 S.W.2d 171

URL: https://www.frixlaw.com/law-library/cases/9683532

## Case

- **Full name:** Danny J. LOWREY, Appellant, v. the UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON, Et Al., Appellees
- **Court:** Texas Court of Appeals, 8th District (El Paso)
- **Decided:** August 26, 1992
- **Citations:** 837 S.W.2d 171; 1992 WL 165423
- **Precedential status:** Published
- **Opinion:** Concurrence by Osborn
- **Judges:** Osborn, Koehler, Larsen
- **Cited by:** 21 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9683532

## How later opinions describe it (automated extraction)

- holding that four-year residual statuté of limitations applied to claim for common-law rescission

## Opinion text

OSBORN, Chief Justice,
concurring.
This being a case of first impression in this state, we are without clear authorities to give direction on the issue before the court. The controlling issue between these parties is what amount of money should Mr. Lowery recover from the UTMB for his incapacity resulting from a compensa-ble injury, or how much should he recover under the Workers’ Compensation Act. If he has been paid all that he is entitled to recover, he can recover nothing more. If he has not been paid in full and there was fraud in the settlement, can he recover the full amount for the incapacity sustained? That is the very basis for the statute.
The suit to set aside the settlement agreement is ancillary to a direct claim for the full amount to which he is entitled under the Act. But for the State having waived its immunity in the first place, there would be no right to recover compensation benefits and without that right there would be no settlement agreement which could be set aside for fraud. This suit, although for rescission, has to be ancillary to the compensation statute. In the words of the song, “you can’t have one without the other.” Clearly, we have the workers’ compensation statute and its waiver of immunity. It must be given a liberal interpretation as Justice Larsen has done. To hold otherwise is to say, if you do not work for the State, you can set aside a settlement agreement obtained on fraudulent grounds, but you can not do that if you work for the State because the State is immune from its fraudulent acts. Such a result is not possible when the statute is given a liberal interpretation.
Surely, a liberal interpretation must mean an opportunity to receive full payment according to the incapacity incurred. Any fraud which fully and finally denies that opportunity without some remedy which can avoid the fraud necessarily results in a denial of justice and the benefits of a statutory scheme for compensation. Who will say that is a liberal interpretation of the statute?
I concur.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9683532. Public record. Not legal advice.