Paradissis v. Royal Indem. Co., 726

• Decision Date: 16 May 1973
• Docket Number: No. 726,726
• Citation: 496 S.W.2d 146
• Parties: Chris PARADISSIS, Appellant, v. ROYAL INDEMNITY COMPANY, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 146

496 S.W.2d 146

Chris PARADISSIS, Appellant, v. ROYAL INDEMNITY COMPANY, Appellee.

No. 726.

Court of Civil Appeals of Texas,

Houston (14th Dist.).

May 16, 1973.

Rehearing Denied June 6, 1973.

Thomas G. Bousquet, Robert D. McPherson, Wandel & Bousquet, Houston, for appellant.

Sam H. Hood, Jr., Martin D. Beirne, Fulbright, Crooker & Jaworski, Houston, for appellee.

COULSON, Justice.

Chris Paradissis, plaintiff, instituted suit against Royal Indemnity Company, defendant, for damages alleged to have been caused by defendant's breach of contract, a policy of workmen's compensation insurance, and alleged negligence in the performance of said contract. The defendant's plea to the jurisdiction was sustained and the cause was dismissed. The plaintiff has perfected this appeal from the order of dismissal. The trial court is affirmed.

A policy of workmen's compensation insurance was carried by Royal Indemnity Company upon Rainbo Baking Company, the employer of Chris Paradissis. On June 6, 1962, Chris Paradissis suffered an accidental injury in the course of his employment. On January 20, 1965, the Industrial Accident Board of the State of Texas awarded Chris Paradissis workmen's compensation for total and permanent disability. The award was fully and timely paid by Royal Indemnity Company. In connection with his initial claim before the Industrial Accident Board, Chris Paradissis made no request for medical benefits and the Board made no award for medical benefits; however, Royal Indemnity Company paid the costs of continuing medical care, nursing services, hospital benefits and medicine for Chris Paradissis including, but not limited to, surgery on his back for correction of a disc defect and fusion of the back, together with continuing treatment by an orthopedic surgeon until 1971.

Plaintiff instituted this suit on February 15, 1972. Plaintiff asserts that the defendant insurance company was notified by a neurosurgeon that plaintiff had a definite psychoneurosis and should be treated by a psychiatrist; that in 1966 the operating orthopedic surgeon stated that Chris Paradissis was in need of psychiatric services; and that in 1971 the treating orthopedic surgeon informed Chris Paradissis that there was nothing that he could do for him and that he should see a psychiatrist. The plaintiff's first amended original petition contends that the failure by Royal Indemnity Company to provide psychiatric services was a breach of the contract of workmen's compensation insurance. The plaintiff further contends that the defendant insurance company was negligent in (a) concealing the plaintiff's true condition from the plaintiff and the Industrial Accident Board; (b) failing to provide psychiatric care and services as recommended by doctors of the insurance company's choice; (c) requiring the plaintiff to be treated by an orthopedic surgeon when the insurance company knew that plaintiff suffered from a functional disability requiring psychiatric care; (d) failing to provide psychiatric services when recommended by two physicians; and (e) failing to provide the necessary medical care required to alleviate, reduce and stop the pain and suffering endured by the plaintiff.

The plaintiff sought to recover damages for pain and suffering, mental anguish, loss of earnings and loss of earning capacity in the total sum of $540,000 and exemplary damages in the sum of $500,000.

The defendant Royal Indemnity Company answered asserting, among other maters, that the court was without jurisdiction of the parties or subject matter of the suit and that all rights of the plaintiff were derivative of the policy of workmen's compensation insurance and the applicable workmen's compensation law. The defendant made general reference to Articles 8306, 8307, 8308 and 8309 of the Vernon's Ann. Revised Civil Statutes of Texas as they were in effect on June 6, 1962. Specific reference by the defendant is made to sections 7 and 7a of Article 8306.

The defendant insurance company in its plea to the jurisdiction states that Chris Paradissis, through his attorney, by letter dated December 27, 1971, filed with the Industrial Accident Board a claim for continuing medical benefits provided by the Workmen's Compensation Act seeking, among other things, reimbursement for unspecified bills, expenses and debts incurred for nursing services, medical attention and medical care and pleading that the Board order a change in the treating physicians. Said letter was the first claim made by Chris Paradissis with the Industrial Accident Board subsequent to the Board's award on January 20, 1965. By letter dated January 26, 1972, Chris Paradissis, through his attorney, requested the Board to take no further action (upon the claim filed for him by letter dated December 27, 1971) until requested to do so by the parties. Thereafter on February 15, 1972, Chris Paradissis filed his original petition in this suit against Royal Indemnity Company alleging breach of contract and negligence.

The defendant's plea to the jurisdiction was heard by the trial court on April 3, 1972. The order sustaining said plea and dismissing the cause was signed and entered on June 27, 1972.

Appellant asserts error by the trial court in sustaining the plea to the jurisdiction and dismissing the plaintiff's lawsuit because (1) the plaintiff's petition did state a cause of action and (2) the Texas Workmen's Compensation Act did not divest the trial court of jurisdiction of the plaintiff's case.

The briefs of appellant and appellee set forth claims and matters which were not a part of the record before the trial court. Only such matters which were presented before the trial court will be reviewed upon this appeal from the order sustaining the defendant's plea to the jurisdiction and...