Ferguson v. Hospital Corp. Intern., Ltd., 84-2455
| Decision Date | 05 November 1985 |
| Docket Number | No. 84-2455,84-2455 |
| Parties | Deborah FERGUSON, Kathleen Rabjohns, and Michael Rabjohns, Plaintiffs-Appellees, v. HOSPITAL CORPORATION INTERNATIONAL, LTD., Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
E.D. Vickery, John M. Elsley, Houston, Tex., for defendant-appellant.
W. James Kronzer, Houston, Tex., Judson Francis, Dallas, Tex., Richard Harrison, Sherman, Tex., for plaintiffs-appellees.
Appeal from the United States District Court for the Eastern District of Texas.
Before RUBIN, WILLIAMS and DAVIS, Circuit Judges.
ON PETITION FOR REHEARING
The petition of appellant Hospital Corporation International for rehearing in the case of Ferguson v. Hospital Corp. Int'l Ltd., 769 F.2d 268 (5th Cir.1985), is DENIED.
Because the petition for rehearing envisages dire effects from the Court's holding in this case, we find it useful to reply briefly to the specific contentions advanced.
The first contention is that by definition in the statute an employer becomes a "subscriber" under the statute simply by taking out an insurance policy under which Texas compensation benefits would be paid. Once a subscriber in these terms, it is urged that an employer cannot be treated as a non-subscriber under the statute.
We leave aside, as the original opinion did, the question whether the voluntary insurance policy taken out in California would have complied with Texas compensation law. In any event, the contention hides behind literal wording to ignore the established law with respect to this issue.
The earliest cases held under the original statute in 1917, which contained the same wording, and continued to hold in the following years that an employer could not claim to its benefit subscriber status under the statute until the requisite notices had been given to the Industrial Accident Board and to the employee. The difficulty with litigating in each instance a claim by an employee that he had not been notified ultimately led to the enactment of the provision that the notice to the Industrial Accident Board constituted constructive notice to the employee. This amendment, however, did not in the slightest change the basic jurisprudence that the notice was required for an employer to claim subscriber status under the law. Indeed, in Bailey v. Texas Indemnity Ins. Co., 14 S.W.2d 798 (Tex.Comm.App.1929), a case upon which the petitioners' erroneously rely in connection with their other point, the court continued to make clear that the notice in strict compliance with the statute was essential to the employer claiming benefits as a subscriber under the statute. These collected cases were set out in the opinion for the Court, 769 F.2d at 272.
The other point which petitioners urge is that notice six months after the accident and injury constituted adequate notice under the statute. They cite the Bailey case, supra, as the only authority in the state on this issue and as authority holding that subsequent notice does comply with the statute. They urge that the Bailey case is a holding precisely on point and by not following it we are violating the mandate of Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Church of Scientology of California v. Foley, 640 F.2d 1335 (D.C.Cir.1980), cert. denied 452 U.S. 961, 101 S.Ct. 3110, 69 L.Ed.2d 972 (1981).
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Kielwein v. Gulf Nuclear, Inc., A14-89-172-CV
...had the intention to be a subscriber under the Act. Ferguson v. Hospital Corp. Int'l, 769 F.2d 268, 273 (5th Cir.1985), reh'g denied, 776 F.2d 105. However, it is undisputed that Kielwein had notice of the coverage, and there is no evidence that he could not have successfully filed a claim ......