Alvarez v. Westchester Fire Ins. Co., 15832
| Decision Date | 25 January 1978 |
| Docket Number | No. 15832,15832 |
| Citation | 562 S.W.2d 263 |
| Parties | Esperanza ALVAREZ et al., Appellants, v. WESTCHESTER FIRE INSURANCE COMPANY, Appellee. |
| Court | Texas Court of Appeals |
Pepos S. Dounson, San Antonio, for appellants.
Damon Ball, Groce, Locke & Hebdon, San Antonio, for appellee.
This is a summary judgment case growing out of a dispute over $10,000.00 that was paid into the register of the court that was recovered in a wrongful death action. Antonio N. Alvarez, husband of Esperanza Alvarez, appellant, was killed instantly in an automobile accident on October 25, 1973, while in the course and scope of his employment by and for Charles Carroll Company. In addition to appellant, Esperanza Alvarez, he was survived by four children all of which were over the age of 18 at the time of his death. The owner and operator of the car was Virginia Howard Williams, who was insured by Government Employees Insurance Company with a policy having an applicable limit of liability of $10,000.00. Charles Carroll Company was insured for workmen's compensation by Westchester Fire Insurance Company, appellee. At the time of Mr. Alvarez' death the maximum weekly benefit payable under the Workmen's Compensation Law was $63.00, and appellee started paying Mrs. Alvarez $63.00 per week within seven days of the date of the accident. The appellant, Esperanza Alvarez, and her children, filed suit against Virginia Howard Williams for the wrongful death of Antonio N. Alvarez and appellee intervened in this suit on its right of subrogation. This suit was settled by an agreed judgment on January 15, 1976, and the funds were paid by check, payable jointly to appellant, Esperanza Alvarez, her children, their attorney, the appellee, and its agent. A dispute arose as to this $10,000.00 which has resulted in the present lawsuit. On August 24, 1976, appellant filed what is designated as a cross-action against Victor A. Speert, attorney for appellant. In this cross-action appellee alleges that this suit was brought at the bequest of Victor A. Speert and that the suit is groundless and brought in bad faith or for the purpose of harassment, and prays that Victor A. Speert pay reasonable attorney's fees, expenses, and court costs. This cross-action has been severed from the main suit by the trial court. From the voluminous papers contained in the transcript, we determine that there are only two parties, to-wit: Esperanza Alvarez, appellant, and Westchester Fire Insurance Company, appellee.
In appellant's second original amended petition she alleges that she is entitled to at least $3,500.00 of the $10,000.00, and that the appellee has refused to pay said sum to her and that such refusal on the part of appellee is arbitrary and capricious and in...
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