Metro Temps, Inc. v. Texas Workers' Compensation Ins. Facility

Decision Date24 July 1997
Docket NumberNo. 03-96-00265-CV,03-96-00265-CV
Citation949 S.W.2d 534
PartiesMETRO TEMPS, INC. and Metromarketing Services, Inc., Appellants, v. TEXAS WORKERS' COMPENSATION INSURANCE FACILITY; Wm. Rigg Co.; and Employers Insurance of Wausau, Appellees.
CourtTexas Court of Appeals

Thomas Herter, Houston, for appellants.

Evelyn T. Ailts, Phillips & Akers, Houston, for Employers Ins.

Gregory C. Mathis, Austin, Jeff Nobles, Houston, Haynes & Boone, L.L.P., for Texas Workers.

Thomas Wade Jefferies, Hohmann, Werner & Taube, Austin, for Wm. Rigg Co.

Before POWERS and JONES, JJ., and HILL, * Chief Justice.

HILL, Chief Justice (Assigned).

Metro Temps, Inc. and Metromarketing Services, Inc., appeal from the trial court's orders dismissing their claims as to Texas Workers' Compensation Insurance Facility ("TWCIF"), Wm. Rigg Co. ("Rigg"), and Employers Insurance of Wausau ("Wausau"), the appellees, based upon the appellants' failure to exhaust their administrative remedies. The appellants contend in two points of error that the trial court erred in granting the appellees' pleas to the trial court's jurisdiction because they were not required to exhaust their administrative remedies and because the Harris County trial court erred in granting the appellees' motions to transfer venue from Harris County to Travis County.

We affirm because we conclude that where, as here, a party has claims that must be brought before an administrative body, combined with additional claims that the administrative body has no authority to adjudicate, and where the determination of those additional claims is dependent in part upon the resolution of an issue or issues that the administrative body has the authority to adjudicate, the district court is without jurisdiction to consider such additional claims until the exhaustion of administrative remedies of those issues over which the administrative body has the authority to adjudicate. We also hold that by failing to present us with the record before the transferring court, the appellants have preserved nothing for review with respect to the claimed error regarding the transfer of venue from Harris to Travis County.

The appellants' petition alleged that Metro had obtained a workers' compensation policy through TWCIF, placed by Rigg as agent and issued and serviced by Wassau. TWCIF is a non-profit, unincorporated association of insurers created by statute to provide insurance coverage for employers that are unable to obtain insurance in the voluntary market. Tex. Ins.Code Ann. art. 5.76-2, §§ 2.01, 4.01 (West Supp.1997).

The appellants asserted that the binder to the policy provided that "no modifier and no surcharge will apply, subject to change at anniversary rate date." They indicated that certain modifiers and surcharges were applied before the anniversary date, resulting in a premium charge of $621,600, when the correct charge should have been approximately $50,000.

Metromarketing sought a declaratory judgment that it is not responsible for any part of the premium charged. Metro sought a declaratory judgment that it did not owe the $621,600 premium, that the rate charged and premium claimed constituted a breach of contract by all of the appellees, and asking for a declaration of the amount due from Metro under the policy. The appellants also alleged actions against the appellees for: (1) breach of contract through raising the rates and applying modifiers and surcharges prior to the anniversary date, indicating that the appellants had suffered consequential damages and that TWCIF's action was not taken in good faith; (2) fraud in attempting to collect the $621,600 premium and in improperly attempting to hold Metromarketing liable for any of such premium, again indicating that the appellants had suffered consequential damages and that TWCIF's action was not taken in good faith; and (3) conspiracy of the appellees to wrongfully charge the appellants the $620,600 premium, again indicating that TWCIF's action was not taken in good faith. The appellants asserted that they were entitled to punitive damages and attorney's fees.

All of the appellees filed pleas to the jurisdiction of the trial court, urging that the appellants were required to exhaust their administrative remedies under section 2.08 of article 5.76-2 of the Texas Insurance Code and that their failure to do so deprived the trial court of jurisdiction. The trial court sustained the plea to the jurisdiction as to all of the appellees.

Section 2.08(a) of article 5.76-2 of the Texas Insurance Code provides that an insured aggrieved by an act or decision of the facility (TWCIF) may appeal to the board (the State Board of Insurance, as per section 1.01(1) of the same article) not later than the 30th day after the affected party had actual notice that the act occurred or the decision was made. Neither of the appellants made such an appeal.

The appellants contend in point of error number one that the trial court erred in sustaining the appellees' pleas to the jurisdiction because the appellants were not required to exhaust their administrative remedies. They argue that their claims are outside the authority of the Insurance Board to adjudicate and consequently they are not required to exhaust their administrative remedies as to those claims.

Article 5.76-2, section 2.08(a) of the Texas Insurance Code provides an administrative remedy for an insured that is aggrieved by an act or decision of the facility. In addition to their claims that the Board of Insurance has no jurisdiction, the appellants have claims regarding the amount of the premium they were...

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8 cases
  • In re Louisiana-Pacific Corp., 09-03-109 CV.
    • United States
    • Court of Appeals of Texas
    • June 26, 2003
    ...Garcia, 893 S.W.2d 504, 515 (Tex.1995); Luby's, 979 S.W.2d at 816-17, and Metro Temps, Inc. v. Texas Workers' Compensation Ins. Facility, 949 S.W.2d 534, 536 (Tex.App.-Austin 1997, no writ). The Garcia case makes no such holding; it merely reaffirms the right to a statutory appeal and a jur......
  • In re General Motors Corp.
    • United States
    • Court of Appeals of Texas
    • August 28, 2009
    ...Texas Mut. Ins. Co., 157 S.W.3d 75, 82 (Tex.App.-Austin 2004, orig. proceeding); Metro Temps, Inc. v. Texas Workers' Comp. Ins. Facility, 949 S.W.2d 534, 535 (Tex.App.-Austin 1997, no pet.). Landmark's theory is that since the 2003 order of dismissal was void, the district court's lawsuit w......
  • Golden v. Employers Ins. of Wausau, Civ.A. G-96-467.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • October 23, 1997
    ...argument that § 2.08 prevented judicial review of a suit against the servicing company); Metro Temps v. Workers' Comp. Ins. Fac., 949 S.W.2d 534, 535-36 (Tex.App. — Austin 1997, no writ) (holding that an employer must exhaust his administrative remedy under § 2.08 before proceeding in a jud......
  • In re Texas Mut. Ins. Co., 03-04-00415-CV.
    • United States
    • Court of Appeals of Texas
    • December 22, 2004
    ...to the claims over which the administrative body does have jurisdiction." Metro Temps, Inc. v. Texas Workers' Comp. Ins. Facility, 949 S.W.2d 534, 536 (Tex.App.-Austin 1997, no writ). Here, the Commission's determination of Goetz's breach-of-contract claim — and, specifically, the issue of ......
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