Lively v. Blue Cross Hospital Service, Inc., 4581
| Decision Date | 01 December 1972 |
| Docket Number | No. 4581,4581 |
| Citation | 488 S.W.2d 474 |
| Parties | Orvadean LIVELY, Appellant, v. BLUE CROSS HOSPITAL SERVICE, INC., Appellee. |
| Court | Texas Court of Appeals |
Mike Willatt, Houston, Mays, Moore, Dickson & Roberts, Inc., R. Temple Dickson, Sweetwater, for appellant.
Nunn, Griggs, Beall & Wilks, Charles R. Griggs, Sweetwater, for appellee.
This is a workmen's compensation case. The facts are undisputed. Orvadean Lively sought workmen's compensation benefits, including medical expenses, from Texas Compensation Insurance Company, her employer's workmen's compensation insurance carrier. Blue Cross Hospital Services, Inc., intervened and alleged that it had, by mistake, paid on behalf of Lively medical expenses amounting to $9,236.40. Texas Compensation Insurance Company admits that it is liable for the $9,236.40 of medical expenses in question. It was stipulated that the medical expenses were incurred by Lively and paid by Blue Cross.
The issue to be decided is whether Lively, the injured employee, or Blue Cross, the employer's group hospitalization and medical insurance carrier, is entitled to recover the $9,236.40 of medical expenses. The trial court held in favor of Blue Cross. Orvadean Lively has appealed. We reverse and render.
Lively contends that she should recover under Section 7 of Article 8306, Vernon's Ann.Civ.St., since the medical expenses were incurred after the workmen's compensation carrier had received notice of her injury and had failed, refused and neglected to provide medical treatment. Blue Cross contends that Lively was not entitled to benefits under the group hospitalization and medical policy, because the policy excluded any injury or sickness covered by workmen's compensation insurance. Blue Cross says the medical expenses were paid as a result of a mistake of fact and it is entitled to restitution.
Lively argues that the medical expenses are exempt from the claim of Blue Cross under Section 3 of Article 8306, V.A.C.S., which provides in part as follows:
'All compensation allowed under the succeeding section herein shall be exempt from garnishment, attachment, judgment and all other suits or claims, and no such right of action and no such compensation and no part thereof or of either shall be assignable, except as otherwise herein provided, and any attempt to assign the same shall be void.'
In Norwich Union Indemnity Co. v. Wilson, 43 S.W.2d 473 (Tex.Civ.App., Dallas 1931, Aff'd Tex.Com.App., 67 S.W.2d 225), Globe Indemnity Company intervened in a workmen's compensation case and sought recovery of $928 which it had, by mistake, paid to or on behalf of, the injured employee. While discussing the exemption contained in Section 3 of Article 8306, V.A.C.S., the Court said:
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