Kuzel v. Aetna Ins. Co.
| Decision Date | 13 April 1983 |
| Docket Number | No. 16789,16789 |
| Citation | 650 S.W.2d 193 |
| Parties | Robert J. KUZEL, Appellant, v. AETNA INSURANCE COMPANY, Appellee. |
| Court | Texas Court of Appeals |
Jeffrey C. Anderson, San Antonio, for appellant.
David Stephenson, San Antonio, for appellee.
Before BUTTS, TIJERINA and DIAL, JJ.
This appeal arises from a lawsuit in which appellant sought to collect disability benefits pursuant to a contract of employment. Appellant appeals from an order granting appellee's plea to the jurisdiction. We affirm the judgment of the trial court.
The record reveals the following facts. Appellant was employed by Atlantic International Marketing Corporation (Atlantic), a Maryland corporation, to work in Saudi Arabia. Appellant first learned of the job opening with Atlantic by reading an advertisement in a Houston, Texas, newspaper. After undergoing a series of interviews in Houston, appellant was offered, and accepted, a position as an assistant general supervisor. George Kassatly, Atlantic's senior representative in Houston, testified that the agreement concerning appellant's employment was reached in Houston. While en route to Saudi Arabia, appellant signed a written contract of employment at Atlantic's home office in Baltimore, Maryland. The contract provides in pertinent part:
Appellant testified that he was unaware of the provisions contained in paragraphs nine and ten of the contract, and that he did not recall any discussion of these provisions during contract negotiations in Houston. Kassatly testified that the terms of the agreement contained in paragraphs nine and ten were discussed in Baltimore.
After allegedly contracting pleurisy while on the job in Saudi Arabia, appellant filed suit against Atlantic for disability benefits. Appellant subsequently amended his pleadings to bring appellee Aetna into the lawsuit, and appellee answered with a plea to the jurisdiction. The trial court granted the plea, and in the same order, severed appellant's cause of action against Atlantic. The court's written order granting the plea recites that the plea is meritorious and is granted. We note that at the conclusion of the hearing on appellee's plea to the jurisdiction, the court below stated, "the Court will grant the motion and abate the matter until Maryland law is followed up on an administrative level." Since appellee's plea prayed for dismissal, and since the trial court was without jurisdiction to abate the cause once it found it had no jurisdiction, we shall treat the order as one of dismissal. See Texas Highway Department v. Jarrell, 418 S.W.2d 486, 488 (Tex.1967). Findings of fact and conclusions of law were neither requested nor filed, thus the judgment of the trial court must be affirmed if it can be upheld upon any theory that is supported by the evidence. Lassiter v. Bliss, 559 S.W.2d 353, 358 (Tex.1977).
In point of error one appellant asserts he is statutorily exempt from coverage under the Maryland Workmen's Compensation Act, Md.Code Ann. art. 101 (1979), (the Maryland Act). Appellant thus claims the trial court erred in basing its order on appellant's failure to comply with the administrative remedies specified in the Maryland Act. Because he maintains he is not subject to the Maryland Act, appellant claims in his second point of error that the court erred in basing its order on the grounds that suit could be maintained only in Maryland.
The Maryland Act extends coverage to employees who are employed wholly without the State only if a contract of employment is "entered into" in Maryland. Md.Code Ann. art. 101, § 21(c)(4) (1979). Compliance with the statutorily prescribed administrative procedures is a prerequisite to judicial enforcement of a claim. See St. Paul Fire & Marine Insurance Co. v. Treadwell, 263 Md. 430, 283 A.2d 601, 604 (Md.1971); Md.Code Ann. art. 101, § 56(a) (1979).
Appellant maintains the employment contract in question was entered into in Houston, Texas, thereby exempting him from the Maryland statute and its administrative procedures. Appellee, however, contends the contract was entered into in Baltimore, Maryland, when appellant signed the written agreement. The crucial issue for this appeal, therefore, is where the employment contract was entered into, particularly with regard to worker's compensation...
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Burley v. U.S. Foods, Inc.
...contract was formed in Texas, but additional consideration for employment was negotiated in Louisiana); Kuzel v. Aetna Ins. Co., 650 S.W.2d 193, 195–96 (Tex.App.1983) (holding Maryland had jurisdiction where the original contract of hire was formed in Texas, but a later contract modificatio......
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Burley v. U.S. Foods, Inc.
...567, 99 A.2d 673 (1953) ; Tobin v. Rouse, 118 Vt. 40, 99 A.2d 617 (1953) ). We find this authority persuasive. Kuzel v. Aetna Insurance Co., 650 S.W.2d 193 (Tex.App.1983), which plaintiff references and which the Court of Appeals cited, does not contradict this result. The court in Kuzel co......
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...preliminary agreements are expressly or impliedly incorporated into the final offer and acceptance. Kuzel v. Aetna Ins. Co., 650 S.W.2d 193, 195(Tex.App.-San Antonio 1983, writ ref'd n.r.e.); Ark. Oak Flooring Co. v. Mixon, 369 S.W.2d 804, 807(Tex.Civ.App.-Texarkana 1963, no writ) (oral agr......
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Burley v. U.S. Foods, Inc., 123A14
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