Opinion filed November 12 , 2010



## In The 

# Eleventh Court of Appeals

__________ 

### No. 11

- 10

- 00245

- CV

__________ IN RE TEXAS MUTUAL INSURANCE COMPANY ET AL

Original Mandamus Proceeding

O P I N I O N
Relators Texas Mutual Insurance Company ; Steven Painter ; Tonya Wright, individually and as representative of the estate of E arl A. Wright, III, deceased ; Virginia Weaver, individually and as representative of the estate of Albert A. Car r illo and as next fr iend of Albert A. Car r illo
, Jr. , a minor, (Texas Mutual) filed a petition for writ of mandamus, seeking to com pel the trial court to grant their plea to the jurisdiction and to dismiss the suit of real party in interest, Amerimex Drilling I
, Ltd. We condi tionally grant Texas Mutual’s petition

. I. Background Facts Painter, Wright, and Car r illo were crewmembers in Amerimex’s oil drilling operations.
After work o n July 28, 2 007, Amerimex driller J.C. Burchett was driving the crewmembers to a
company

- owned bunkhouse when they were inv olved in an automobile accident. Burchett and
Painter were injured, and Wright and Car r illo were killed

. Burchett filed a claim for workers’ compensation benefits. The crewmembers and their representatives did not. Amerimex’s carrier, Texas Mutual, disputed Burchett’s claim. The Texas Department of Insurance

— Division2

of Workers’ Compensation found that Burchett suffered a compensable injury and ordered Texas Mutual to pay benefits. Texas Mutual filed suit to appeal this determination

. Meanwhile, Amerimex initiated proceedings at the D ivision to determine whether the injuries suffered by Painter, Wright, and Ca rrillo were covered by its workers’ compensation policy

. A D ivision a ppeals p anel found that Amerimex lack ed standing

. T he appeals panel also
determined that
, if Amerimex did have standing, it would have found that the crewmembers were not injured in the course and scope of employment and
, th erefore
, that their injuries were not covered by Amerimex’s workers’ compensation policy

. Amerimex filed a petition in intervention in the judicial review case between Texas Mutual and Burchett, seeking a declaratory judgment that Painter, Wright, and Car r illo were injured in the course and scope of employment. Texas Mutu al filed a plea to the jurisdiction, arguing that Amerimex lacked standing to intervene. The crewmembers and their representatives, who were added as defendants by Amerimex’s petition, also filed pleas to the jurisdiction. T he trial court denied the plea s to the jurisdiction.
II. Issue
Texas Mutual seek s a writ of mandamus ordering the trial court to grant relators’ plea to the jurisdiction and to dismiss Amerimex’s suit for lack of standing

. III. Standard of Review To be entitled to the extraordinary r elief of a writ of m andamus
, Texas Mutual must show
that the trial court abused its discretion and that there is no adequate appellate remedy. In re Prudential Ins. Co. of Am

. , 148 S.W.3d 124, 135

- 36 (Tex. 2004). A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to constitute clear and prejudicial error of law or if it clearly fails to correctly analyze or apply the law. In re Cerberus Capital Mgmt
., LP , 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding)

. In determining whether appeal is an adequate remedy, we consider whether the benefits outweigh the detriments
of mandamus review. In re BP Prods. N. Am., Inc. , 244 S.W.3d 840, 845 (Tex. 2008) (orig. proceeding). The f

ailure to grant a plea to the jurisdiction for failure to exhaust administrative
remedies with the D ivision is subject to mandamus review in order to prevent disruption of the orderly processes of government. In re Liberty Mut. Fire Ins. Co. , 295 S.W.3d 3 27, 328 (Tex. 2009) (o rig. proceeding).3

IV. D id the Trial Court Abuse its Discretion By Finding that Amerimex Had Standing? Standing is a prerequisite to subject

- matter jurisdiction. Bland Indep. Sch. Dist. v. Blue
, 34 S.W.3d 547, 553, 5 58 (Tex. 200 0 ). The Workers’ Compensation Act vests the Division with exclusive jurisdiction to determine a claimant’s entitlement to benefits, subject to judicial review. In re Liberty , 295 S.W.3d at 328. Judicial review is available o nly to a party that has exhausted its administrative remedies and that is aggrieved by a final decision of an appeals panel. T EX

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. § 410.251 (Vernon 2006 )

. The Act provides two ways for an employer to bring
a claim with the Division : either as a subclaimant or by disput ing the compensability of a claim if the carrier has accepted liability for the payment of benefits. T EX

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. §§ 409.009, 409.011(b)(4) (Vernon 2006 )

. Texas Mutual argue s that Amerimex lack ed standing to intervene becau se Amerimex was not a subclaimant and because it did not accept liability for the crewmembers’ claims

. Amerimex responds that it has standing to enforce its rights as a policyholder

– the workers’ compensation bar to tort claims , that it is an aggrieved p arty, that it is a subclaimant, and that the Division’s conflicting course and scope rulings present a justiciable controversy

. A. Wa s Amerimex a Subclaimant? Amerimex argues that it had standing to bring a claim with the Division as a subclaimant, maintaining that its payment of health insurance premiums after the crewmembers’ accident was ―compensation‖ within the meaning of the Act. A person qualifies as a subclaimant if he has provided compensation, directly or indirectly, to or for an employee or legal beneficiary ; if he has sought and been refused reimbursement from the insurance carrier ; and if he has filed a
written claim with the Division. Section 409.009.
The Act defines ―compensation‖ as the ― payment of a benefit.‖ T EX

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. § 401.011(11) (Vernon Supp. 2010 ) . A ―benefit‖ is defined as ―a medical benefit, an income benefit, a death benefit, or a burial benefit based on a compensable injury.‖ Section 401.011(5). ―Medical Benefit‖ means ―payment for health care reasonably requi red by the nature of a compensable injury.‖ Section 401.011(31). ―Health care reasonably required‖ means ―health care that is clinically appropriate and considered effective for the injured employee’s injury.‖
Section 401.011(22

- a ). ―Income benefit‖ mea ns ―a payment made to an employee for a compensable injury‖ other than a medical benefit, death benefit, or burial benefit.
Section 401.011(25). ―Death benefit‖ means a payment made ―to a legal beneficiary because of4

the death of an employee.‖ Section 4 01.011(13). An example of a ―burial benefit‖ would be the ―actual costs incurred for reasonable burial expenses.‖ T EX

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. § 408.186 (a)(1) (Vernon 2006 )

. The ultimate goal in construing a statute is to effectuate the legislature’s intent. Union Banker’s Ins. Co. v. Shelton , 889 S.W.2d 278, 280 (Tex. 1994). To ascertain the legislature’s intent, we examine the statute’s plain language. City of DeSoto v. White , 288 S.W.3d 389, 394

- 95 (Tex. 2009). Because the words chosen by the legislature ―should be the surest guide to legislative intent,‖ the text is determinative unless enforcement of the statute’s plain language would produce absurd results. Entergy Gulf States, Inc. v. Summers , 282 S.W.3d 433, 437 (Tex. 2009). Payment of health insura nce premiums does not fit within any of the statutory categories
of benefits. Compensation b enefits address a specific on

- the

- job injury. H ealth insurance premiums do not

. They are contractual payments for insurance coverage for a specified period
of time and for a defined group of people

. Because of the wide variances in coverage provided by health insurance policies and the lack of evidence of any medical coverage provided to the crewmembers, we cannot even be sure that Amerimex’s policy provided covera ge for on

- the

- job injuries. Premium payment s , therefore, are not compensation within the mean ing of the Act. Even if we are in error, Amerimex provided no evidence that it requested but was denied reimbursement from Texas Mutual, 1 Amerimex did not file a claim for reimbursement with the Division, 2 and it has not identified any reimbursable claim for which Texas Mutual is responsible. Amerimex d oes not have standing as a subclaimant under Section 409.009

.

1 Amerimex directs our attention to the Hearing Officer’s Decision and Order in the crewmember

- related proceedings it initiated and to the transcript of the contested case hearing involving Burchett as evidence that it did file a claim for reimbursement. In the Ame rimex

- initiated proceedings, the Hearing Officer found that Amerimex had :

[F] ailed to show that it had sought and been refused reimbursement from the carrier for these premiums. Although the Chief Financial Officer testified that he sought reimbursement from the Carrier for payment of group health insurance premiums, his testimony did not provide sufficient evidence of how and in what amounts he sought reimbursement, and whether and in what manner the insurance carrier refused.

Amerimex directs us to not hing in the record to refute the Hearing Officer’s conclusions or to otherwise show that Tex as Mutual refused its request.

At the beginning of the contested case hearing involving Burchett, Amerimex’s counsel told the Hearing Officer that the proceeding w as not filed as a subclaimant claim but that they had presented a subclaim to Texas Mutual. Counsel’s statement to the Hearing Officer is no evidence of a reimbursement request.

2 Amerimex tells us in its response that it filed a written claim with the Division
, but it does not direct our attention to any evidence of that claim.5

B. Wa s Amerimex Contesting the C ompensability of a C l aim for which Texas Mutual has A ccepted L iability?

T he Act gives a n employer the right to dispute the compensability of a claim if the carrier has accepted liability for the payment of benefits. Section 409.011(b)(4). The crewmembers did
not file claims wit h Division
, and Texas Mutual has not otherwise accepted liability for any claims resulting from the accident. Amerimex, therefore, does not have standing under
Section 409.011(b)(4)

. C. Does Amerimex Otherwise have Standing ?
Amerimex maintains that Section 409.011 of the Texas Labor Code is merely a notice provision and that it does not set forth an exhaustive list of an employer’s rights. It argues that
, beyond the rights provided by Sections 409.009 and 409.011 , an employer has a contractual right to have course and scope issues resolved administratively

. We ascertain legislative intent by looking at the entire act, including the caption and body. See Hartford Ins. Co. v. Crain , 246 S.W.3d 374 (Tex. App

— Austin 2008, no pet.); Morroquin v. St ate , 112 S.W.3d 295 (Tex. App.

— El Paso 2003, no pet.). Section 409.011 is entitled ―Information Provided to Employer; Employer’s Rights.‖ It requires the Division to give notice to the employer of ―the employer’s rights and responsibilities under [the Workers’ Compensation Act].‖ Section 409.011(a)(3). It then lists the rights this notice must include, among them the right to contest the compensability of a claim if the carrier has accepted liability.
Section 409.011(b). Consequently, we disagree with Amerimex. Section 409.011 is not merely a notice provision but i s descriptive of its rights

. See Simplex Elec. Corp. v. Holcomb , 949 S.W.2d 446, 448 (Tex. App.

— Austin 19 97, pet. denied) (holding that an employer does not have the right to contest compensability of a claim after the carrier failed to dispute liability within the requisite time limits, as this failure was not acceptance of liability).
Amerimex , however, arg ues that it has much broader standing rights
, and it relies heavily

upon In re Tyler Asphalt & Gravel Co. , 107 S.W.3d 832 (Tex. App.

— Houston [14 th Dist.] 2003
, orig. proceeding). In Tyler , an employee was killed while on the employer’s premises. The empl oyee’s family filed a tort suit in Harris County against the employer and others. The employer asserted the workers’ compensation bar as an affirmative defense. Additionally,
because it had previously paid the employee’s burial expenses , the employer sou ght reimbursement from its workers’ compensation carrier. The carrier contested the claim,6

contending that the employee was not within the course and scope of his employment at the time of his accident. The Division found that the employee was within the course and scope of his employment
, and the carrier filed suit in Smith County to seek judicial review of this decision

. Id. at 836

- 37. The employer filed a motion to abate the Harris County tort litigation
, and when this motion was denied, it filed a petition for writ of mandamus

. Id. at 837. The Houston Court was primarily concerned with resolving the conflicting jurisdictional issues caused by two trial courts being simultaneously asked to determine wheth er the employee was acting within the course and scope of his employment at the time of his death . But, in its analysis
, the Houston C ourt made comments that both parties have seized upon. T exas Mutual highlights t he Houston Court ’s statement that the Ac t is contractual in nature and that
, by paying insurance premiums, employers bargained for the right to have course and scope issues resolved through the Division’s more efficient administrative process. Id. at 844. Amerimex interprets this as authority that it always has standing to go before the Division to have cou rse and scope
issues resolved. The Houston Court’s statement, however, must be read in context. The employer’s standing was not in question becau se it was a subclaimant. T he question was wh ether the Harris County tort litigation should be stayed pending the resolution of the Smith County judicial
review suit. Both suits involved the same course and scope issue
, and each court was equally
able to address it

. The resolution of which court ha d jurisdiction, however, carried procedural

consequences. I f the Harris County tort suit proceeded, the employer would be unable to assert its exclusivity defense because the Division ’s course and scope finding was binding pending the ju dicial review sui t. T he employer had the burden of proof on course and scope in the tort trial
, but the employee’s family did in the judicial review suit. Id. at 844. The Houston Court correctly noted that an employer has contractual rights as a subscriber and that
, to protect these rights, the judicial review suit should not be impacted by a competing tort suit. It found, therefore, that the court in Smith County had exclusive jurisdiction. Id. at 838.
The Houston C ourt’s statement on the employer’s contractual right to an administrative
determination does not mean that employers always have standing. The court summarized its analysis by writing, ―Smith County

. . . has exclusive jurisdiction because determination of the course and scope issue is committed to the stat utory workers’ compensation process, judicial review is part of that process, and judicial review must occur in Smith County.‖ Id

. This7

analysis assumes the Division’s jurisdiction over the course and scope issue was properly invoked. If so, that jurisdiction could not be defeated by collateral tort litigation

. That assumption cannot be employed here because the Division’s jurisdiction was not properly invoked if Amerimex does not have standing.
The Housto n Court was concerned that the employer would lose its rights as a subscriber if the tort suit proceeded. Amerimex contends that it is in a similar situation and complains that the Division’s conflicting course and scope findings placed it in an impossibl e situation

. Amerimex advises us that the plaintiffs in the tort suit are attempting to hold it liable for Burchett’s actions under a respondeat superior theory. It is concerned that they might attempt to introduce the Division’s finding that Burchett wa s in the course and scope of his employment and argue that this is improper because the Division determined course and scope under the Act’s standard but that a different standard applies for respondeat superior claims. We empathize with the concern over t he Division’s conflicting course and scope findings and the propriety of an alternative course and scope finding when the Division has determined that Amerimex did not have standing but disagree that this has placed Amerimex in an impossible situation. If the tort claimants attempt to introduce the Division’s findings in the Burchett proceeding, we are confident that the trial court can appropriately consider Amerimex’s

concerns. Amerimex does not have a general contractual right of standing.
D. Was Amerimex Aggrieved by a Final D ecision? Only a party that has exhausted its administrative remedies and that is aggrieved by a final decision of the appeals panel may seek judicial review. T EX

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. § 410.251 (Vernon 2006 )

. To be aggrieved by a final decision, the loss resulting from the final decision
must be actual and immediate. Ins. Co. of State of Pa. v. Orosco , 170 S.W.3d 129, 133 (Tex. App.

— San Antonio 2005, no pet.)

. Amerimex argues that it is aggrieved by the Division’s decision that it lacked standing to bring the crewmembers’ claims because it now must litigate the crewmembers’ personal injury
lawsuit in the midst of conflicting Division course and scope findings

. It characterizes this as an imposition of a legal injustice. T he future defense of a personal injury lawsuit i s not an actual
and immediate loss. See Orosco , 170 S.W.3d at 133 ( t he possibility of a future loss is not an8

actual and immediate loss) . Moreover, the Division’s decision did not require Amerimex to pay

an y money or deprive it of any substantive defense. Amerimex’s position assumes that
, if we find that it had no standing to initiate a course and scope proceeding with the Division
, this will impose a defensive obligation that it would not
otherwise have. T his assumption is incorrect. The crewmembers have the right to claim that they were not in the course and scope of their employment but that Burchett was . To this claim, Amerimex has the right to assert the affirmative defense that workers’ compensation benefits are their exclusive remedy

. R egardless of whether the crewmembers’ course and scope issue is resolved in the judicial review suit or the tort litigation , Amerimex will be required to defend
itself and will be required to carry the same burden of proof . It would be less expensive for Amerimex if the crewmembers’ claims were adjudicated with Burchett’s judicial review suit
, but the legislature has chosen to give employers limited standing. We c annot disregard that decision. Amerimex was not aggri eved by a final decision of the appeals panel
, and it did not have standing to intervene in the judicial review suit betwee n Texas Mutual and Burchett.
V. Conclusion The petition for writ of mandamus is conditionally granted. The trial court is directed to set aside its August 19, 2010 order and to enter an order granting the plea to the jurisdiction against Amerimex. The writ will issue only if the trial court fails to act on or before
December 1, 2010, in accordance with this opinion.

RICK ST RANGE
JUSTICE

November 12 , 2010 Panel consists of: Wright, C.J., McCall, J., and Strange, J.