Hartford Acc. & Indem. v. Collins

• Decision Date: 08 December 1994
• Docket Number: No. 13-93-386-CV,13-93-386-CV
• Citation: 895 S.W.2d 750
• Parties: HARTFORD ACCIDENT & INDEMNITY, Appellant, v. Robert COLLINS, Appellee.
• Court: Texas Court of Appeals

Page 750

895 S.W.2d 750

HARTFORD ACCIDENT & INDEMNITY, Appellant, v. Robert COLLINS, Appellee.

No. 13-93-386-CV.

Court of Appeals of Texas,

Corpus Christi.

Dec. 8, 1994.

Rehearing Overruled March 9, 1995.

Loren R. Smith, Hughes, Watters & Askanase, Houston, for appellant.

Rose Vela, Douglas A. Allison, Allison & Huerta, Corpus Christi, R. Clay Hoblit, Chavez, Gonzales & Rodriguez, Corpus Christi, for appellee.

Before KENNEDY, FEDERICO G. HINOJOSA, Jr., and YANEZ.

OPINION

KENNEDY, Justice.

Hartford Accident and Indemnity Company appeals an order that apportioned expenses between Robert Collins and Hartford, his employer's workers' compensation carrier. We reverse and render.

Collins was injured when he slipped on some gel at a Reynolds Metals Company facility. When injured, he was within the course and scope of his employment with a subcontractor of Reynolds. Hartford paid approximately $93,000 in benefits.

Collins sued Reynolds for negligent maintenance of the premises and failure to inspect and discover an unreasonable, dangerous condition. Hartford intervened claiming a worker's compensation lien on Collins's recovery. Hartford and Collins agreed to settle with Reynolds for $100,000. Collins and Hartford agreed to split the proceeds evenly.

Collins then moved for apportionment of expenses. In the motion, Collins stated that Collins agreed that he would not seek attorney's fees out of Hartford's $50,000 recovery. ¹ He stated that the agreement did not cover expenses. Collins attached an attorney's affidavit detailing Hartford's lack of participation in the preparation of the case. The affidavit closed with the following passage. "The court costs incurred in this case will be paid by Defendant Reynolds Metals Company. The remaining expenses incurred in preparing this case for trial are $8,173.18."

The court granted the motion and ordered Hartford to pay "50% of the expenses incurred in preparing his case for trial."

In its later agreed order of dismissal, the court did not mention the apportionment of expenses. The court ordered that "all costs of suit of the Plaintiff, ROBERT COLLINS, are to be taxed and adjudged against [Reynolds]. All other court costs are to be taxed and adjudged against the party incurring the same."

Hartford raises five points of error against the order apportioning the expenses. The action complained of is within the court's general conduct of the trial. We must therefore examine the record to see if the court abused its discretion and thereby harmed the appellant. See Pitt v. Bradford Farms, 843 S.W.2d 705, 706-707 (Tex.App.--Corpus Christi 1992, no writ). The court abused its discretion if it acted without reference to guiding rules and principles--that is, arbitrarily or unreasonably. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986).

By point of error two, Hartford contends that the court erred in apportioning the expenses because a court can only apportion attorney's fees, not expenses. While that is not strictly the case, as seen by the rules governing costs (e.g. TEX.R.CIV.P. 141), Hartford is correct as to expenses. The Beaumont court held that there is no basis in statute or rule for a court order awarding litigation expenses. Aetna Casualty & Sur. Co. v. Harjo, 766 S.W.2d 583, 583-84 (Tex.App.--Beaumont 1989, no writ). As discussed in footnote one above, the legislature explicitly allowed for apportionment of attorney's fees in the statute. Court costs are covered by the rules of procedure. TEX.R.CIV.P. 125-149. Neither the statute nor the rules mentions expenses. We cannot read the apportionment of expenses into an exact compensation scheme like the Workers' Compensation Act. Harjo, 766 S.W.2d at 583-584 (citing Jones v. Liberty Mutual Ins Co., 745 S.W.2d 901, 902-903 (Tex.1988) (absent...