Freeman v. Texas Compensation Ins. Co.

• Citation: 603 S.W.2d 186
• Decision Date: 18 June 1980
• Docket Number: No. B-8880,B-8880
• Parties: Martha J. FREEMAN et al., Petitioners, v. TEXAS COMPENSATION INSURANCE COMPANY, Respondent.
• Court: Supreme Court of Texas

Page 186

603 S.W.2d 186

Martha J. FREEMAN et al., Petitioners, v. TEXAS COMPENSATION INSURANCE COMPANY, Respondent.

No. B-8880.

Supreme Court of Texas.

June 18, 1980.

Rehearing Denied July 23, 1980.

Law Offices of Norman & Bates, Roger M. Norman, Fort Worth, for petitioners.

Cantey, Hanger, Gooch, Munn & Collins, Estil A. Vance, Jr., Morgan, Gambill & Owen, Judge Gambill, Fort Worth, for respondent.

McGEE, Justice.

This is a suit to recover worker's compensation death benefits for the widow and minor children of Jimmy Bolding, a former employee of Southwestern Bell Telephone Company. Bolding was killed on September 14, 1974, when his car hit a concrete pillar adjacent to a freeway in Fort Worth. His widow, Martha Bolding, now Martha Freeman, sued the compensation insurance carrier, Texas Compensation Insurance Company (TCIC), claiming that her husband was killed in the course of his employment. Although a jury found that Bolding's death resulted from an injury received in the course of his employment, the trial court granted TCIC's motion for judgment non obstante veredicto. Freeman appealed, and the court of civil appeals reversed the trial court's judgment, holding that there was evidence to support the jury's verdict. The court of civil appeals also held that Bolding's beneficiaries were entitled to the maximum statutory death benefits of $70 per week until the widow remarried in 1975. The widow's share was $35 per week; the children received $35 per week. Upon remarriage, the widow was entitled to a lump sum payment equal to $35 weekly for two years and the children continued to receive $35 a week. 586 S.W.2d 172. We granted Freeman's application for writ of error to consider whether the court of civil appeals correctly determined the amount of benefits payable to Freeman and the children upon Freeman's remarriage.

Article 8306, section 8 of the Worker's Compensation Act deals with the amount and duration of death benefits payable to the legal beneficiaries of a deceased worker. Section 8(a) provides for weekly payments, with a specified minimum and maximum weekly amount:

"(a) If death results from the injury, the association shall pay the legal beneficiaries of the deceased employee a weekly payment equal to sixty-six and two-thirds per cent (662/3%) of the employee's average Tex.Rev.Civ.Stat.Ann. art. 8306, § 8(a) (Vernon 1980). It was stipulated in this case that Bolding's wages entitled his beneficiaries to $70 per week upon his death if judgment were rendered in their favor. See id. § 29(b). TCIC and Bolding's widow, now Freeman, disagree, however, on the effect of Freeman's remarriage on TCIC's liability for death benefits. Freeman contends that the court of civil appeals incorrectly determined both the lump sum amount payable to her upon remarriage and the amount payable thereafter to her children. She urges that she is entitled to a lump sum payment equal to $70 per week for two years, and that the children should receive $70 weekly after her remarriage for as long as they are eligible.

weekly wage, but not less than the minimum weekly benefit nor more than the maximum weekly benefit set forth in Section 29 of this article."

Section 8(b) of article 8306 deals specifically with the effect of remarriage on the surviving spouse's benefits. The duration of that spouse's benefits is shortened to two years and the benefits are payable in a lump sum.

"(b) The weekly benefits payable to the widow or widower of a deceased employee shall be continued until the death or remarriage of the beneficiary. In the event of remarriage a lump sum payment equal in amount to the benefits due for a period of two (2) years shall be paid to the widow or widower. The weekly benefits payable to a child shall be continued until the child reaches eighteen (18) years of age, or beyond such age if actually dependent, or until twenty-five (25) years of age if enrolled as a full-time student in any accredited educational institution. All other legal beneficiaries are entitled to weekly benefits for a period of three hundred and sixty (360) weeks."

Tex.Rev.Civ.Stat.Ann. art. 8306, § 8(b) (Vernon 1980). Before her remarriage Freeman's share of death benefits was $35. Thus, in the language of section 8(b), the "benefits due" Freeman were $35 per week. This amount times the number of weeks in two years equals the correct lump sum payment. We disagree with Freeman's contention that $70 rather than $35 should be used to compute the lump sum. Allowing Freeman to recover a lump sum representing two years of $70 weekly payments, in addition to continuing benefits to the children would result in payments exceeding $70 per week, a result contrary to the language of section 8(a). We hold that upon remarriage, the surviving spouse is to receive a lump sum payment equal to the amount of benefits that spouse would have received if there were no remarriage.

As to the effect of Freeman's remarriage on the children's benefits, the parties agree that the children should continue to receive benefits but disagree on the amount. Freeman contends that the $35 portion of the weekly benefits previously paid to her should be redistributed to the children. TCIC argues that redistribution is not required and that its overall liability for weekly death benefits is partially discharged upon payment of the two years' lump sum to Freeman.

Although article 8306, section 8 provides for termination of payments to a surviving spouse upon remarriage, it does not expressly deal with the effect of remarriage on the overall liability of the carrier to remaining beneficiaries. The amount of weekly benefits initially required to be paid by the insurance carrier is controlled by section 8(a). Section 8(b) deals with various contingencies affecting the duration of time for which the surviving spouse, children, or other beneficiaries remain eligible. Section 8(b) does not limit the amount, as distinguished from the duration as to specific beneficiaries, of the carrier's liability for weekly payments. The weekly amount of compensation benefits is controlled solely by section 8(a). The eligibility of various beneficiaries may change, but the overall amount is unaffected. There is no language in the statute to indicate that the carrier's weekly liability, once established by section 8(a), is to be modified as long as there are eligible beneficiaries. It is therefore apparent that redistribution of benefits A legislative intent that weekly benefits be redistributed rather than partially discharged is expressed in section 8(c), which deals with ineligibility of a child. The benefits are redistributed among other children if eligible, or if there are no eligible children to the surviving spouse. TCIC argues that because the legislature provided for redistribution upon ineligibility of a child, but failed to provide for redistribution upon remarriage of a surviving spouse, the principle of expressio unius est exclusio alterius applies. According to TCIC, under this principle, a legislative intent that benefits are not to be redistributed after remarriage is indicated. We are unwilling to adopt this reasoning because of additional language in the statute that clearly indicates a legislative intent that upon ineligibility of any beneficiary, the share of benefits previously paid to that beneficiary must be redistributed to remaining eligible beneficiaries. As discussed above, section 8(a) fixes the amount of weekly benefits for which the carrier is liable upon the employee's death. Under the contingencies set out in paragraph (b), a beneficiary may become ineligible and a redistribution to remaining beneficiaries may be necessary to continue the benefits payable under section 8(a). Section 8(c) harmonizes with this intent. The legislature may have set out specific provisions for reallocation among children to eliminate doubt whether an ineligible child's share should be redistributed among remaining eligible children or among all eligible beneficiaries. Furthermore, application of the expressio unius principle would lead to an unreasonable result if the surviving spouse became ineligible by death rather than remarriage. Under the expressio unius principle, no redistribution to minor children would occur if the surviving spouse died; the minor children, now orphaned, would receive one-half of the original benefits. Yet, under section 8(c), a surviving spouse whose children became ineligible continues to receive full benefits. The expressio unius principle is a rule of logic and common sense and does not compel an unreasonable interpretation.

rather than a partial discharge of liability was intended by the legislature. Redistribution is necessary to effect the requirement that the carrier "shall pay the legal beneficiaries" a weekly payment of a specified amount. In a case factually like this case, the Dallas Court of Civil Appeals has reached this result under similar reasoning. See Blankenship v. Highlands Insurance Co., 594 S.W.2d 147 (Tex.Civ.App. Dallas 1980, writ filed).

Our interpretation of section 8 is not inconsistent with section 8a of article 8306, which defines legal beneficiaries and requires payment of death benefits according to the laws of descent and distribution. Death benefits are "vested" in the sense that the status of a beneficiary as such is determined as of the date of the worker's death. See Tex.Rev.Civ.Stat.Ann. art. 8306, § 8a (Vernon 1980). The effect of subsequent ineligibility is governed by section 8. In this connection, our holding in this case is that redistribution occurs to the deceased worker's children, a class in whom the right to benefits was vested at the time the worker died.

Finally, we note that our interpretation of article 8306, section 8 is consistent with interpretations of worker's compensation statutes in other states. The following cases have held that upon remarriage, a surviving spouse's share of benefits is...