Affirmed and Majority Opinion and Dissenting Opinion filed March 21, 2019. 

In The

Fourteenth Court of Appeals

NO. 14-17-00520-CV

FORT BEND COUNTY, Appellant

V.

MELISSA ANN NORSWORTHY, Appellee

On Appeal from the 268th District Court

Fort Bend County, Texas

Trial Court Cause No. 14-DCV-213052B

MAJORITY OPINION

This is a worker’s compensation subrogation case in which appellant Fort 

Bend County (“FBC”), a self-insured governmental entity, appeals the interlocutory 

judgment and order of severance in favor of appellee Melissa Norsworthy

(“Melissa”). We affirm.
2 

I. Background

On December 27, 2010, while working as a Fort Bend County Deputy Sheriff, 

John Norsworthy swerved to avoid road debris that had fallen off a flatbed delivery

truck owned and operated by SBS/Bison Building Materials, LLC and driven by 

Morris Crosby. John suffered what would be fatal injuries. FBC initiated worker’s 

compensation benefits, paying one week of temporary income benefits of $689.47, 

medical benefits of $215,011.87, and after his death on January 4, 2011, FBC began 

paying the $766.00 weekly death benefit to the surviving spouse, Melissa, 

individually and as guardian of her minor son Jacob and minor daughter Katlyn, 

ages 16 and 13, respectively, at the time. Because Norsworthy was a first responder, 

his spouse, Melissa, will receive a worker’s compensation benefit for her life.

In 2014, in trial court cause number 14-DCV-213052, Jacob, John’s son, now 

an adult, sued Bison and Crosby (“Bison”) for the wrongful death of John. In 

Jacob’s second amended petition, he purported to bring his wrongful death claim on 

behalf of himself and all beneficiaries who have a wrongful death and survival cause 

of action. 

On December 3, 2015, Jacob went to mediation with Bison. At the time of 

the mediation, Melissa, Jacob and Katlyn were individually receiving their statutory 

proportionate share of the worker’s compensation death benefits.1 Katlyn, 

represented by attorneys, attended the mediation and presented her claim as a 

potential intervenor in the lawsuit. Melissa, represented by counsel, also appeared 

at mediation representing a potential claim from the estate of John. At mediation, 

Jacob and Katlyn agreed to settle with Bison for $1.7 million dollars ($849,000.00

each) and agreed to allocate $2,000.00 to John’s estate. Melissa, individually, did 

 1 Melissa receives one-half of the benefit and the two adult children, Jacob and Katlyn, 

receive one-fourth of the benefit, each. 
3 

not participate in the mediated settlement agreement, did not sign the mediated 

settlement agreement, and did not share in her adult children’s third-party recovery. 

The settlement exceeded FBC’s statutory lien for past benefits paid to Jacob, Katlyn, 

and Melissa. 

On January 26, 2016, FBC filed a petition in intervention in the Bison lawsuit 

seeking subrogation recovery for the worker’s compensation benefits it paid to 

Jacob, Katlyn, and Melissa. Thereafter, FBC and Jacob entered into a Rule 11 

Agreement, settling the part of FBC’s lien applicable to Jacob’s half of the 

collective third-party recovery from Bison. See Tex. R. Civ. P. 11.

In June 2016, FBC filed its motion for summary judgment against Katlyn and 

Melissa seeking to recover the remaining half of its statutory worker’s compensation 

lien on the collective third-party recovery. FBC asserted it was entitled to summary 

judgment because it had timely intervened prior to final judgment in the third-party 

Bison suit asserting its subrogation rights, the two-year statute of limitations did not 

apply to its right to reimbursement from the settlement made by the legal 

beneficiaries, and Katlyn’s recovery was for damages from a third-party tortfeasor 

liable for the compensable death of John, regardless of how the legal beneficiaries 

characterized it.2

 

Melissa and Katlyn contested FBC’s subrogation rights. They argued in their

traditional motion for summary judgment that the statute of limitations bars FBC’s 

subrogation claim. Next, Melissa asserted that FBC cannot establish the essential 

elements of its conversion claim and cannot recover for medical and temporary 

income benefits because she did not make any recovery from third-party, Bison. 

Additionally, she argued Jacob settled with FBC for an amount that exceeds the 

worker’s compensation death benefits paid to Jacob and Katlyn; therefore, the one 

 2 Katlyn claimed her recovery was for a bystander claim. 
4 

satisfaction rule prevents FBC’s further recovery. 

On February 10, 2017, FBC’s total worker’s compensation lien was 

$442,959.32. The trial court ordered disbursement of Jacob’s $849,000.003

recovery on deposit with the registry of the court in accordance to the Rule 11 

Agreement between Jacob and FBC. The disbursement gave FBC a $221,219.20 

recovery from Jacob’s proportionate shares of the settlement proceeds, reducing 

FBC’s outstanding worker’s compensation lien to $221,740.12. After reduction of 

Jacob’s proportionate share of attorney’s fees and expenses, FBC made a net 

recovery of $145,057.58.4 All causes of action involving Jacob were resolved and 

severed. 

On April 21, 2017, in an order styled “Defendant in Intervention Melissa 

Norworthy’s Interlocutory Judgment and Order of Severance,” the trial court 

granted in part Melissa and Katlyn’s summary judgment motion. The trial court 

rendered summary judgment as to Melissa only and dismissed all claims against 

Melissa in the subrogation case on the basis that she settled solely in her capacity as 

independent administratrix of the estate and received no settlement funds

individually. The April 21, 2017 order also severed all claims against Melissa by 

FBC so that the interlocutory judgment became final on those claims. The order

severed all claims into cause number 14-DCV213052-B (the “B” case). The trial 

court ordered FBC “to continue to pay worker’s compensation benefits to Melissa 

Norsworthy as long as she remains eligible under the statute.”

 3 49.9412% represents Jacob’s $849,000 proportionate share of the total $1.7 million third 

party settlement.

4 FBC asserted that the net amount recovered by Jacob and Katlyn in excess of FBC’s lien 

is the future credit as defined by the Act (also known as the “holiday”). See Tex. Lab. Code § 

417.002(b). At this time, only Jacob’s $411,646.64 net recovery of the “holiday” has been finally 

determined and distributed. 
5 

On May 19, 2017, FBC filed in the main trial cause number a document 

entitled, “Intervenor’s Motion for New Trial as to Defendant in Intervention Melissa 

Norsworthy,” complaining that the trial court’s April 21, 2017 order compromised

FBC’s subrogation interest by ordering FBC to continue paying Melissa worker’s 

compensation benefits and denying FBC its right to apply its future credit/advance 

to those future benefits. FBC contends the trial court’s ruling results in the 

circumvention of the Act. 

Realizing its motion for new trial should have been filed in the “B” case, FBC

filed a motion to consider its motion for new trial timely filed, maintaining that the 

inadvertent filing of the motion for new trial in the main cause number was a 

clerical error. During a hearing, the trial court granted FBC’s motion to consider the 

motion for new trial timely filed in the severed “B” case, and signed an order to that 

effect in open court on July 28, 2017. On August 3, 2017, the trial court amended 

its order without notice to FBC and handwrote that the motion for new trial was 

timely filed as to the main cause number.

On July 3, 2017, FBC filed a notice of appeal from the trial court’s order 

signed April 21, 2017. The notice of appeal contained both the main cause number 

and the “B” case. The appeal was assigned to this court under our appellate case 

number 14-17-00520-CV. On July 28, 2017, FBC filed a second notice of appeal

from the April 21, 2017 order. The notice also contained both trial cause numbers 

and was assigned to this court under our appellate case number 14-17-00633-CV. 

The April 21, 2017, order is the only contested order in both appeals. 

Subsequently, in this court, FBC filed an opposed motion to consolidate the 

related appeals. Melissa argued that both of FBC’s appeals should be dismissed 

because the judgment was not final in the main cause number and the notice of 

appeal was late in the “B” cause number. By per curiam opinion and order dated 
6 

February 15, 2018, we granted appellant FBC’s motion to consolidate, in part, and 

transferred the record filed in 14-17-0633-CV into case number 14-17-00520-CV. 

Fort Bend Cty. v. Norsworthy, No. 14–17–00633–CV, 2018 WL 894050, at *3 (Tex. 

App.—Houston [14th Dist.] Feb. 15, 2018, no pet.) (per curiam). We dismissed the 

appeal in case number 14-17-00633-CV.5

 Id. 

II. Analysis

FBC raises three issues on appeal: (1) whether the trial court erred in 

dismissing Melissa from the suit and ordering FBC to continue to pay her weekly 

death benefits; (2) whether the trial court erred in granting Melissa’s motion for 

summary judgment on FBC’s right to an advance against future benefits owed to 

Melissa; and (3) whether FBC’s motion for new trial was timely filed for purposes 

of appeal.6

 

Although Melissa labels an alternate reason to affirm the trial court’s 

summary judgment as a “cross point” in her appellee’s brief, it is not a cross point 

because it does not seek to alter the trial court’s judgment. Tex. R. App. P. 25.1(c).

A. Standard of review 

The summary judgment standards of review are well-known. We review de 

novo the trial court's order granting summary judgment. Ferguson v. Bldg. Materials 

Corp, 295 S.W.3d 642, 644 (Tex. 2009) (per curiam); Wyly v. Integrity Ins. Sols., 

502 S.W.3d 901, 904 (Tex. App.—Houston [14th Dist.] 2016, no pet.). We consider 

the evidence in the light most favorable to the non-movant and indulge reasonable 

 5 For the reasons set forth in the court’s February 15, 2018 memorandum opinion, the 

companion motion to dismiss filed in this case is denied. Fort Bend Cty. v. Norsworthy, No. 14–

17–00633–CV, 2018 WL 894050, at *3 (Tex. App.—Houston [14th Dist.] Feb. 15, 2018, no pet).

6 As set forth, supra, this court previously determined FBC’s third issue on February 15, 

2018. Fort Bend Cty. v. Norsworthy, 2018 WL 894050, at *3. As such, FBC’s third issue is 

denied as moot. 
7 

inferences and resolve all doubts in its favor. See City of Keller v. Wilson, 168 

S.W.3d 802, 824 (Tex. 2005); Wyly, 502 S.W.3d at 904. “We credit evidence 

favorable to the non-movant if reasonable fact finders could and disregard contrary 

evidence unless reasonable fact finders could not.” Id. 

To prevail on a traditional motion for summary judgment, a movant must 

establish that no genuine issue of material fact exists so that the movant is entitled to 

judgment as a matter of law. Tex. R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp 

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). Summary judgment is 

appropriate if the movant conclusively negates at least one essential element of the 

plaintiff’s claim. Wyly, 502 S.W.3d at 905.

B. Applicable law to worker’s compensation subrogation claims

Under Section 417.001 of the Act, an employee who suffers a compensable 

injury may seek damages from a liable third party in addition to pursuing a claim for 

compensation benefits. Tex. Lab. Code § 417.001(a); Carty v. State Office of Risk 

Mgmt., 733 F.3d 550 (5th Cir. 2013), certified question answered, 436 S.W.3d 298, 

302 (Tex. 2014). When an employee or beneficiary (claimant) claims benefits, “the 

insurance carrier is subrogated to the rights of the injured employee and may 

enforce the liability of the third party in the name of the injured employee or the 

legal beneficiary.” Tex. Lab. Code § 417.001(b); Carty, 436 S.W.3d at 302. 

Consequently, the carrier is subrogated to the employee’s rights, and the carrier’s 

subrogation interest includes the total benefits paid or assumed by the carrier to the 

employee or the legal beneficiary. Tex. Lab. Code § 417.001(b); Carty, 436 S.W.3d 

at 304.

Section 417.002 provides the net amount recovered by a claimant in a thirdparty action shall be used to reimburse the insurance carrier for benefits, including 

medical benefits, that have been paid for the compensable injury. Tex. Lab. Code 
8 

§ 417.002(a); Carty, 436 S.W.3d at 302. Amounts recovered in excess of the 

amount of the reimbursement required under Section 417.002(a) are treated as an 

advance against future benefits, including medical benefits, that the claimant is 

entitled to receive. Tex. Lab. Code § 417.002(a-b); Carty, 436 S.W.3d at 302. If 

the advance is adequate to cover all future benefits, the insurance carrier is not 

required to resume the payment of benefits, but if the advance is insufficient, the 

insurance carrier shall resume the payment of benefits when the advance is 

exhausted. Tex. Lab. Code § 417.002(c); Carty, 436 S.W.3d at 302.

The Supreme Court of Texas recently addressed these provisions: 

In most cases, workers’-compensation benefits are the exclusive 

remedy against a workers’-compensation subscribing employer for onthe-job injuries. See Tex. Lab. Code 408.001(a); Port Elevator–

Brownsville, L.L.C. v. Casados, 358 S.W.3d 238, 241 (Tex. 2012). But 

an employee may still seek damages from a liable third party in 

addition to receiving workers’-compensation benefits. See Tex. Lab. 

Code § 417.001(a); State Office of Risk Mgmt. v. Carty, 436 S.W.3d 

298, 302 (Tex. 2014). Similarly, a workers’-compensation carrier is 

“subrogated to the rights of the injured employee and may enforce the 

liability of the third party in the name of the injured employee.” Tex. 

Lab. Code § 417.001(b). Under either scenario, the “net amount 

recovered by a claimant in a third-party action shall be used to 

reimburse the insurance carrier for benefits, including medical benefits, 

that have been paid for the compensable injury.” Id. § 417.002(a). The 

upshot of these provisions is that “until the carrier ‘is paid in full[,] the 

employee or his representatives have no right to any funds.’ ” Tex. 

Mut. Ins. Co. v. Ledbetter, 251 S.W.3d 31, 33 & n.1 (Tex. 2008) 

(quoting Argonaut Ins. Co. v. Baker, 87 S.W.3d 526, 530 (Tex. 2002)). 

Wausau Underwriters Ins. Co. v. Wedel, 557 S.W.3d 554, 556 (Tex. 2018).
9 

C. Trial court correctly found Melissa made no third-party recovery 

In its first and second issues, FBC advances the argument that the third-party 

recovery by Melissa’s adult children is imputed to Melissa and, as a result, the trial 

court erred in ordering FBC to continue paying Melissa weekly benefits and not 

suspending Melissa’s future benefits. According to FBC, the trial court’s order 

effectively applied a beneficiary-by-beneficiary standard rather than a collectiverecovery standard to FBC’s worker’s compensation reimbursement and future credit 

in contravention of binding legal precedent. 

Melissa contends that Section 417.002 of the Labor Code only applies if a 

claimant (i.e., an employee or a decedent’s legal beneficiary) secures a third-party 

recovery. Melissa maintains she made no individual recovery. She neither shared 

nor participated in her adult children’s third-party recovery. Thus, Melissa contends 

that the collective-recovery standard does not apply in this case and the trial court 

correctly ordered FBC to continue paying Melissa’s death benefits. 

1. Melissa, in her individual capacity, made no recovery from a thirdparty

It is undisputed that Melissa, in her individual capacity, did not seek recovery 

from Bison. Her son, Jacob, filed a wrongful death suit against Bison purportedly 

on behalf of all beneficiaries.7

 Jacob, however, did not name Melissa in the 

petition.

8

 Melissa did not participate in the prosecution of the case or mediated 

 7 Under the Texas Wrongful Death Act, a wrongful death claim derives from the cause of 

action the decedent could have asserted for personal injuries had he lived. Russell v. Ingersoll–

Rand Co., 841 S.W.2d 343, 347 (Tex. 1992). All or anyone of the parties, to whom the right of 

action is given, may bring suit and where it is brought by only one [or some but not all] of the 

parties, it must appear that the suit was brought for the benefit of all. Tex. Civ. Prac. & Rem. Code 

§ 71.004(b). Moreover, the suit may be brought for the benefit and use of those not actually 

prosecuting the claim without their knowledge or consent. See Dennis v. Gulf, C. & S.F. Ry. Co., 

148 Tex. 387, 224 S.W.2d 704, 705 (1949). 

8 All of the parties who are to share in the recovery must appear on the face of the petition, 

and the judgment should award to each of the parties for whose benefit the action is brought the 

share as found and directed by the trier of fact. Avila v. St. Luke’s Lutheran Hosp., 948 S.W.3d 
10 

settlement agreement with Bison or sign a release in her individual capacity.

9

 No 

portion of her adult children’s settlement was allocated for Melissa’s individual 

benefit.10 If FBC chose to object to apportionment of the mediated settlement on the 

basis that Melissa, a necessary party, was not included in the settlement, that issue is 

not before this court on appeal. FBC’s appeal is limited to the trial court’s order 

granting Melissa’s summary judgment motion and ordering continued death benefit 

payments. 

 For the above reasons, the trial court correctly found Melissa made no thirdparty recovery and FBC was required to continue to pay her death benefits. Because 

Melissa did not make a recovery from the third-party, her continued receipt of death 

benefits from FBC does not amount to a “double recovery.” 

2. Collective-recovery standard inapplicable to Melissa 

FBC argues that beneficiaries are treated collectively for purposes of worker’s 

compensation. FBC maintains that the effect of the trial court’s order is a double 

recovery for the worker’s compensation beneficiaries.

“[W]hen multiple beneficiaries recover compensation benefits through the 

same covered employee, the carrier’s rights to a third-party settlement are 

determined by treating it as a single, collective-recovery rather than separate 

recoveries by each beneficiary.” Carty, 436 S.W.3d at 300. Collectively, the legal 

 

841, 850 (Tex. App.—San Antonio 1997, writ denied). 

9 The provision of the act requiring all of the beneficiaries to be parties was enacted chiefly 

for the benefit of the defendant in such suit, to protect it against the bringing of several suits 

arising out of the same transaction; and if it neglects to require this to be done, those who are not 

parties are not precluded by a judgment rendered in a case brought by the other beneficiaries. See 

Schwing v. Bluebonnet Exp., Inc., 470 S.W.2d 133, 137 (Tex. Civ. App.—Houston [14th Dist.] 

1971), aff’d in part, rev’d in part on other grounds, 489 S.W.2d 279 (Tex. 1973). A defendant’s 

failure to raise the non-joinder issue may result in its waiver. Avila, 948 S.W.3d at 850. 

10 If the defendant chooses not to object in some manner or except to the pleadings, the 

defendant runs the risk that the missing beneficiaries will not be precluded from pursuing their 

claims by a judgment to which they were not parties. Avila, 948 S.W.3d at 851. 
11 

beneficiaries are not entitled to both worker’s compensation benefits and the thirdparty recovery because retention of both results in a double recovery. See Foreman 

v. Sec. Ins. Co. of Hartford, 15 S.W.3d 214, 219 (Tex. App.—Texarkana 2000, no 

pet.).

FBC’s cases are inapplicable to the underlying facts of this case. As set forth, 

supra, Melissa made no third-party recovery. FBC has not provided any applicable 

authority that allows FBC to attribute the third-party recovery of Melissa’s adult 

children to her.

11 Under the facts of this case, the cases applying the collectiverecovery standard are distinguishable and, thus, this standard does not operate to 

suspend Melissa’s weekly benefits or future benefits. 

FBC’s issues are overruled.

III. Conclusion

Having overruled overruled FBC’s issues, we affirm the trial court’s April 21, 

2017 final judgment. 

 /s/ Margaret ‘Meg’ Poissant

 Justice

Panel consists of Chief Justice Frost and Justices Spain and Poissant. (Frost, C.J., 

dissenting).

 

11 The dissent argues that we are bound by the dicta in Carty, 436 S.W.3d at 302–06, seemingly conflating 

a workers’ compensation “claimant,” which Melissa is, with a Texas Labor Code section 417.002 “claimant 

in a third-party action,” which Melissa is not. We must read the phrase “claimant in a third-party action” in 

context and construe it according to the rules of grammar and common usage. See Tex. Gov’t Code 

§ 311.011(a).