NO. 07-05-0373-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL C JUNE 28, 2006

______________________________ YVONNE COOPER, APPELLANT

V. ST. PAUL FIRE AND MARINE INS. CO. A ND TEXAS MUTUAL INSURANCE COMPAN Y, APPELLEES

_________________________________ FROM THE 237 TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 97-56 0,059; HO NORABLE SAM MEDI NA, JUDG E

_______________________________ Before QUINN, C.J., and REAVIS and HANCOCK, JJ.
MEMORAND UM OPINION Appella nt, Yvonne Cooper appeals the denial of her summary judgment and the trial court’s granting of appel lees’, S t. Paul Fire and Marine Insurance Company (St. Paul) and Texas Mutual Insurance Company (Texas Mutual), motions f or summary

judgment. We affirm.1 At the ti me of the injury, th e comp any was kno wn as the Texas Workers’

Compensation Insurance Fund. 2 Background Cooper was inju red in 19 94 whil e workin g for NTS Communications d uring a t ime that Texas Mutual 1 was the company's wor kers’ compensation carrier. After receiving Cooper’s worke rs ’ compensation claim, Texas Mutual began to pay benefits. Shortly thereafte r, Cooper

was als o diagno sed with a degen erative d isk dise ase. On July 9, 1996, Cooper reinjured her back whi le worki ng for NT S; at that time, St. Paul was the workers’ compensation carrier for the company. Following the 1996 injury, Cooper filed a second claim with the Texa s Work ers’ Compensation Commission (Commission) for additional benefits. The Commission consolidated the seco nd claim with Cooper's previous administrative claim against Texa s Mutual for the 1994 injury.
On August 19, 1996, Texas Mutual filed a Motion of Refused/Disputed Claim on the basis that Cla imant had reinjure d her bac k on July 9, conten ding that St. Paul was responsible for new medical expenses incurred after the 1996 injury. In September 1996, after a treating doctor confirmed Cooper’s previous diagnosis of a degenerative back condition and chronic lower back pain, St. Paul disputed Cooper's claim based on its belief that the medical expens es incurr ed were r

elated to Cooper's degenerative back condition as well as the 1994 injury.
Because both companies denied coverage of medical expenses, Cooper requested
a benefit review conference (BRC) from the C ommissio n. After t he BRC, a benefits review3

officer determined that the 1994 injury was not a producing causeof Cooper's then current backcondition, and that St. Paul was responsible for payme nt of medical expenses incurred byCooper. Pursuing administrative remedies, St. Paul sought a contested case hearing (CCH). At the hearing, the CCH officer affirmed that the1996 in ju ry was a producing cause of

Cooper' s back co ndition, that the 1994 inj urywas not solely the cause of Cooper's then current back condition, and that both Texas Mutual and St. Paul were to paybenefits. St. Paul appealed the CCH officer's dec ision; h owever, the commission appealspanel a ffirmed th e CCH of ficer's d ecision

. Having exhausted its administrative remedies, St. Paul sought judicial review by appealing to the Di strict Co urt and re questing a jury tria l. See T EX . L AB . C ODE A N N . § 410.251 (Vernon 2006) . While awaiting trial, Texas Mutual and St. Paul entered into an agreementnonsuiting their claims against one another, and Texas Mutual wasnot required to partic ipate in the trial

. In September 2004, a jury trial was held in which the jury was asked to answer three questions: (1) Did Cooper injure her back

during the course of her employment on July 9, 1996; (2) is Cooper's back condition (after 1996) solel y due to her 1994 injury; and (3) is C ooper's back condition (after 1996) a result of the 1996 in jury? Althoug h the jury concluded that Coo per did s uffer an i njury i n 1996, the jury answered the next two questions as "NO." The trial court concluded that the jury found that the1994 injury was notthe sole cause of Cooper's current back condition, and that the jury found that Cooper's backcondi tio n was not the result of the 1996 injury. Based on the jury findings, the trial court entered judgment for St. Paul, and denied Cooper's request for a ttorney fees.4

In addition t o the jury t rial requ ested by St. Paul , Cooper had file d counter claims againstSt. Paul and a third party petition against Texas Mutual alleging bad faith, violations of the Deceptive Trade Practice s Act (DT PA), and violations of article 21.21 of the Tex as Insurance Code. The basis of the claims were that the two insuran ce companies misrepresented to the tri al court that an a ggravati on of an injury was not a new injury and that the two companies colluded to refuse payment to Cooper of medical expenses pending trial. However, these counterclaims were severed from the jury trial requested b y St. Paul and were abated until the conclusion of the jury trial. After thejury’s ve rdict, thetrial co urt consolidated Coope r’ s counterclaims with the cause tried before the jury and set al l the
cases for a hearing on the parties’ motions for summary judgment. At the hearing, the trial court heard the parties’ evidence, and awarded judgment i n favor of St. Paul based on the jury’s verdict, granted St. Paul’s and Texas Mutual’s motions for summar

y judgmen t as to the Coop er’s coun terclaims , and den ied Coop er’s moti on for sum mary judgm ent. Issues presented Cooper raises seven issues on appeal contendin g that the trial court erred in: (1) awarding judgment in favor of St. Paul based on the jury's answers; (2) denying Cooper’s Motion to Awa rd Attorney Fees; (3) granting the insurance companies' motions for summary

judgment and deny ing Coop er's moti on for sum mary judgm ent; (4) ex cluding part of Cooper's summary judgment evidence against St. Paul; (5) denying Coo per's Motion to Compel disclosure of the agreement letter between the compan ies duri ng the su mmary judgment hearin g; and ( 6) refusing to allow evidence of the agreement betwee n the companies into evi dence du ring the jury trial

. As a sevent h issue, Cooper contends t hat,5

if the appe al of thejury trial is reman ded back to the trial court, the erroneously excluded evidence should be allowed into evidence.

Judgment in favor of St. Paul and Denial of Attorney Fees
A trial court has a duty to ascertain the intention of a jury's an swers, harmonize or reconcile the answers and issues, and render a judgment in conformity with the jury’s
answers. See State v. Hale , 136 Tex . 29, 41, 146 S.W. 2 d 731, 73 9 (1941). When jur y findings are ambiguous, a trial court may examine theissues and evidence submitted; after
an examina tion of the issues a nd evidence, the trial court can then ascertain the proper interpretation of the ve rdict. See Jackson v. U.S. Fidelity and Guar. Co. , 689 S.W.2d 408, 412 (Tex. 19 85); Hale , 146 S.W.2d at 739. In appeali ng from an adverse judgment, an appellan t has the burden to show that the judgment of the trial cou rt was erroneo usl y rendered and entered. See Travelers Ins. Co. v. Brown , 402 S.W. 2d 500, 5 04 (Tex. 1966). If the jury findings are ambiguous or unclear, the appellate courts must try to interpret the findings so as to uphold the judgment. First Federal Sav. & Loan Ass'n of Dall as v. Sharp , 359 S.W.2 d 902, 90 3 (Tex.1 962). Cooper contends thatthe trial court misinterpreted the jury’s verdict and erroneously awarde d judgment in favor of St. Paul. Cooper relies on Texas Employers Ins. Ass’n v. Page for its contention that, since the jury found that the 1994 injury was not the sole cause of Cooper’s back condition, St. Paul was n ot absolved of liabi lity. See Texas E mployers In s. Ass’n v. Page , 553 S.W.2d 98 (Tex. 1977). Hence, Cooper claims that judgment should not have been awarded to St. Paul and that the trial court erred in doing so.2 Considering that the jury also had evidence of Cooper’s degenerative disk di sease,

the jury a nswers ar

e not inconsisten t. 6 However, contrary to Coope r's repres entation , Texas E mployersdoes not stand for the premise that an i nsurancecarrier i ncurs li ability for a subsequent injury unless it negates a prior

injury as the so le cause

. Texas E mployers dealt with an instructed verdict in which t he trial court

did not allow a jury to make a determination of the distribution of liabili tybetween the two i njuries. Id

. at101. In determining that the trial court should not have granted an instru cted verd ict, the T exas Su preme Court sta ted that amaterial issue
was raised and that a request for an instructed verdict should have been denied because the insurance company did not show that the prior injury was the sole cause of the present
co ndition. Id . at 102. As such, the Supreme Court held that the jury sho uld have been allowed to make adetermin ation of liabili ty. Id . In this case, the jury found that the 1994 injury was not the solecause of Cooper' s back co ndition; however , it also found that the backconditi on was n ot a resul t of the 1 996 inju ry. Accor dingly, Texas E mployers is inapplicable to the present case because the jury in the p resent ca se was al lowed to return
a verdictand specifically found that Cooper's back con dition was not the result of the 1996 injury. 2 Thus, to the extent that the jury’s answers can be considered ambiguous, we
con clude that the t rial cou rt has har monized the jury’s answers and issu es and re nder a judgment i n conformi ty with th e jury's a nswers. See Hale , 136 Tex . at 41. Next, Cooper contends that the trial court erred i n denying her Motio n to Awar d Attorney Fees. The responsibility of attorney fees shall be governed by the workers’ compensation laws in effect on the d ate of the requ est for jud icial re view. See T EX . L AB .3 Appellant contends that the present lawsu it is governed by the current section

408.221 of

the Texas Labor Code which in cludes a provision allowing recovery of attorney fees from insurance companies who seek judicial review of an appeals panel decision w hen a claimant prevails on the issues raised on judicial review. Act of May 25, 2001, 77 th Leg., R.S., ch. 1456 , § 8.01, sec. 408.221, 2001 Tex. Gen. Laws 5167, 5189. (amende d 2005) (current version at T EX . L AB . C ODE A NN . § 408.2 21 (Verno n 2006)) . Even i f the present lawsuitwas governed by the currentsection 408.221, we haveconclud ed that th e trial court did not err in awarding judgment in favor of St. Paul because Cooper is not the prevailing party at trial. Since Cooper is not the prevailing party and has not p rovided any statu tory authority for the a ward of attorney fees to her as the non-prevailing party, we conclude that anybasis for an award of attorney fees to a non-prevailin g party has been inadequa t ely briefed and thus

waived. See T EX . R. A PP . P. 38.1(h ); See Thedford v. Union Oil Co. of Cal. , 3 S.W.3d 609, 615(Tex.Ap p.-Dalla s 1999, p et. denie d). 7 C ODE A NN . § 408.221 historical note (Vernon 2006) [Act of May 25, 2001, 77 th Leg., R.S ., c h. 1456, § 8.04, 2001 Tex. Gen. Laws 5167, 5190]. The law in effect when the judicial reviewwas requested by St. Paul did not provide d for attorney fees to be paid by an insurance company that successfully seeks and prevail s upon ju dicial r eview. See Act of May 12, 1993, 73 rd Leg., R.S., ch. 269, § 1, 1993 Te x. Gen. Laws 987, 1191. Therefore,
we conclude that the trial court did not err in denying Cooper’s request for attorney fees. 3 We overrule Cooper’s first two issues.

Summary Judgment in favor of Insurance Companies

and Denial of Cooper’s Motion Relating to her count erc laims, Cooper contends that the insurance companies colluded to delay payment of medical expenses. During the appeal process, S t. Paul did notmake payments to Cooper. Texas Mutual would make payments for expenses, but only if related t o the 1994 inj ury and continued to dispu te paymen t of expe nses it fe lt were related to the 1996 injury. Thus, Cooper contends that the insurance companiesengaged4 St. Paul sought and received a summary judgment based o n the legal theory that

aggravation of a prior injury is not an "injury" as defined by the Texas Workers' Compensation Act. However, the granting of th e s ummary judgment was appealed and reversed by this court in Cooper v. St. Paul Fire & Marine Ins. Co. , 985 S.W.2d 614 (Tex. App.–Ama rillo 19 99, no pe t.).

5 The Texas Insurance Code has since been codified; however the codification was notintended to effect substantive changes in the l aw. See Act of May 22, 2003, 78 th R.S., ch. 1274, § 27, 2003 Tex. Gen. Laws 3611, 4139 . For purposes of clarity and consistency, we will use the same terminology as the p arties. 8 in unconscionable actions and delayed a n offer of medical care des pite the BRC and CCH findings in Cooper' s favor. Further, Cooper contends t hat St. Pa ul false ly repres ented to the trial court that aggravation of injury is not an injury un der the Tex as Workers' Compensation Act, and that Texas Mutual joined St. Paul in that representation. 4 Cooper’s theories of

liabil ity agai nst St. Pa ul and T exas Mut ual are c laims of bad faith, a violation of article 21.21 of the Texas Insurance Code, 5 and a violation of chapter 17, subchapter E of t he Texas Business and Commerce Code, commonly known as the Texas Deceptive Trade Practices-Consumer

Protection Act. St. Paul counters that, since the jury t rial abs olved St

. Paul of liability of the underlying compensation claim, no extra contractual liability exists. Finally, both comp anies al so raise the defen se of stat ute of li mitations to the ex

tra contractu al alle gations made by C ooper.
When both parties move for summary judgment on the same issues and the trial court grants one mot ion and denies t he other, a review ing cour t examin es the su mmary judgment evidence pres ented by both sides, determines all questions presented, and rendersthe judg ment t he trial court sho uld haverendered

. Valence Operating Co. v. Dorsett , 164 S.W. 3d 656, 6 61 (Tex. 2005).9

Although Coo per beli eves that St. Paul was acting in bad faith by disputing an aggravation of an injury as a valid claim, simply di sp uting a c laim, even if it is later determined to be an erroneous denial, does not subject a workers’ compen sation carrier to lia bili ty for bad faith. See Aranda v . Ins. Co. of N. Am. , 748 S.W.2d 210, 213 (Tex. 1988). A workers' compensation claimant who asserts that a carrie r has brea ched the duty of good faith and fair dealing by refusing to pay or delaying payment of a claim must establish (1) the absence of a reasonable basis for denying or delayi ng payment of the benefitsof the policy and (2) that the carrier knew or should have known that there was not
a reasonab le basis

for denyi ng the cl aim or de laying p ayment of the c laim. Id . More importantly, when a j ury finds that a party is not covered under an insurance policy and is notentitled to recove r under th e policy , a compan y is not l iable fo r a breach of good faith dealing, a violation of the Insurance Code, or a vio lation of the Texas Decep tiv e Trade Practices-Consumer

Protecti on Act fo r its den ial of a claim. See generally Commonwe alth Lloyds Ins. Co. v. Downs , 853 S.W.2d 104, 118-19 (Tex.App.–Fort Worth 1993, writ denied); see also Am. Motorists Ins. Co. v. Fodge , 63 S.W.3 d 801, 80 4 (Tex. 2 001) . Since the jury in th is matter found tha t, although Cooper did receive an injury in 1996, Cooper’s backconditi on was n ot a re s ult of the 1996 injury, we conclude that St. Paul is not liable for a breach of good faith dealing, or any violation of the Texas Insurance o r Business and Commerce Code. We conclude that the trial court correctly granted St. Paul’s motion for summary

judgment and denied Cooper’s motion fo r summary

judgment on Coope r’s extra contractu al claim s agains t St. Paul

.10

As t o Cooper’s extracontractu al claim s agains t Texas Mutual, T exas Mu tua l contends that Cooper’s claims are barred by the statute of limitations. In each of Cooper’s counterclaims, the statute of limit ati ons is two years. See T EX . C IV . P RAC
. & R EM . C ODE A NN . 16.003; Act effective April 4, 1985, 69 th Leg., ch. 22, § 3, 1985 Tex. Gen. Laws 395 , 395-96 (repeale d 2003) ( current ve rsion at T EX . I NS
. C ODE A NN . § 541.162) (Vernon 2006); T EX . B US
. & C O M . C ODE A NN . § 17.565 (Vernon 2002). Although Cooper cites Murray v. San Jacinto Agency, Inc. , 800 S.W.2d 826 (Tex. 1990), for the proposition that the statu te of limitation begins when a company wrongfully deni es coverage, Cooper misinterprets the
case. In Murray , the cour t emphasi zed that acause of action a ccrues at

t he tim e when facts come into existence which authorize aclaimant to seek a judicial remedy, not when the insurance company admitted to wrongly denyin g the claim. Murray , 800 S.W.2d at 828. Put another way, a cause of action can g enerally be said to accrue when the wrongful act eff e cts an in

jury. Id . (citing Moreno v. Sterling Drug, Inc. , 787 S.W.2d 348, 351 (Tex. 1990)). I n this particular case, the act causing injury is the denia l of benefits by the two companies. Texas Mutual’s denial occurred when the company notifie d Cooper on August 19, 1996, in writing , that it was dispu ting the claim. Based on this denial, Cooper was able t o seek legal remedy by requesti ng a BRC . Becaus e of the l egal reme dies ava ilable to Cooper, we concl ude th at the statute of limitations began at that point. Cooper did not raise the extra contractual claims against Texas Mutual until February 22, 1999, which is outside the two year st atut e of limi tations. Therefor e, we con clude th at the tri al court properlygranted Texas Mut ual ’s motion for summary judgment, and properly denied Cooper’s motion of summary judgment. We overrule Cooper’s third issue.11 Exclusion of Summary Judgment Evidence and Denial of Motion to Compel Next, Coo per disp utes the trial court’s ruling on three exhibits: portions of Texas Mutual's records consisting of communications between the insurance companies, a l etter from Cooper's counsel to Texas Mutual, and Cooper's attorney's affidavit proving attorney fees. Additionally, Cooper contends the trial cou rt erroneously denied its Motion to Compel seeking communication between the companies becau se, if p rivilege d, the no tes were unsupported by docum entation supporti ng its privileged status. B oth of the se issue s relate to the exclusion of summary judgment evidence.
We assume that Cooper is arguing that, because the evid ence was excluded , the summary

judgment was impro per. Admission or exclusion of evidence is within the discretion of t he trial court. City of Brownsville v. Alvarado , 897 S.W.2d 750, 753 (Tex.199 5). Reversing a summary judgment based on an eviden tiary error requires appellant

to show that there was indeed an eviden tiary error and that the error probably resulted in an impro per judgme nt. Id . To successfully challen ge an evi dentiary ruling, the comp laining party must show that the judgment turns on the particular piece of evi dence that was exclude d or admi tted. Alvarado , 897 S.W.2d at 753-54. However, Cooper only asserts that evidentiary errors exist. Coope r makes no attempt to connect any individual piece of excluded evidence to any particul ar issue or to argue that the judgment of the trial court turned on the excluded evi dence . Therefore, without deciding whether evidentiary error exists, we hold that Cooper has failed to carry6 Cooper also contends that the letter agreement improperly released TexasMutual from suit, an d that jud gment was required to be re ndered in her favor. Although Cooper cites Latham v. Security Ins. Co. of Hartfor

d , 491 S.W.2d 100, 10 5 (Tex. 19 72) for the proposition that all parties before the commission must be made parties to the suit, a close inspection of Latham reveals that only parties who desi re to challenge the administrative decisio n are req uired to particip ate in th e suit. Id

.

7 Having addressed and overruled Cooper’s first si x issues, we need not address Cooper’s final request to consid er the ad missibil ity of evi dence up on remand . T EX . R. A PP . P. 47.1. 12 her burden necessary for us to find reversible e rror in t he trial court's evidentiary rulings. Id . Cooper's fourth and fifth issues are overruled.

Exclusion of evidence at trial of the i nsurance companies agreement Finally, Cooper contends t hat the tr ial cour terred in excluding the companies' letter agreementfrom the t rial because the agreemen t was a p arty admi ssion, T E X . R. E VID . 801(e)(2) , and evi dence of the compa ny’s inconsisten t positio n, T EX . R. E VID . 613. However, under

the abus e of disc retion standard a pplied to decisions on whether to admit
or exclude evidence, see Alvarado , 897 S.W.2d at 753-54, Cooper has not discussed how the evidentiary ruling, if error, resulted in an improper judgment. Id . Hence, we conclude that the t rial cou rt did no t commit re versibleerror. 6 Therefore, we overrule Cooper’s sixth issue.
Conclusion Having overruled all of Cooper’s issues, 7 we affirm the trial court. Mackey K. Hancock Justice