Security Insurance Company of Hartford v. Latham

• Decision Date: 16 March 1972
• Docket Number: No. 613,613
• Citation: 478 S.W.2d 226
• Parties: SECURITY INSURANCE COMPANY OF HARTFORD, Appellant, v. Jan LATHAM, Appellee.
• Court: Texas Court of Appeals

Page 226

478 S.W.2d 226

SECURITY INSURANCE COMPANY OF HARTFORD, Appellant, v. Jan LATHAM, Appellee.

No. 613.

Court of Civil Appeals of Texas Tyler.

March 16, 1972.

Rehearing Denied March 30, 1972.

Renfrow, Zeleskey, Cornelius, Rogers & Berry, Kenzy D. Hallmark, Lufkin, for appellant.

Sallas, Griffith & Meriwether, Gus E. Meriwether, Crockett, for appellee.

McKAY, Justice.

This suit was filed by appellee against appellant Security Insurance Company of Hartford (hereinafter called 'Security') to mature an award of the Industrial Accident Board of Texas. Security filed a plea to the jurisdiction and a plea in abatement, while appellee filed a motion for summary judgment. After a hearing, the trial court overruled Security's plea to the jurisdiction and its plea in abatement, and then granted appellee's motion for summary judgment, maturing the award of the Industrial Accident Board and awarding appellee a statutory penalty of 12%. This appeal is from that action of the trial court.

On December 2, 1970, the Industrial Accident Board made an award to appellee against Security and Connecticut Indemnity Company (hereinafter called 'Connecticut'), jointly and severally. On December 21, 1970, both Security and Connecticut filed notices of intention to appeal the award of the board, and thereafter on January 7, 1971, Connecticut filed Cause No. 9595 in the District Court of Houston County against appellee. Security was not made a party to that cause, No. 9595, by Connecticut, and Security did not file any separate suit as an appeal from the board award.

On February 2, 1971, the case at bar was filed by appellee against Security to mature the Industrial Accident Board award. On February 17, 1971, Security filed its plea to the jurisdiction and tis plea in abatement in this cause, and on the same day filed its plea in intervention in Cause No. 9595, to which plea in intervention appellee has filed an answer.

Security complains by two points that the trial court erred in overruling its plea in abatement and entering judgment for appellee because (1) when Connecticut perfected its appeal from a joint and several award by filing Cause No. 9595 in the district court, all parties who appeared before the Industrial Accident Board were before the court in Cause No. 9595, and (2) because the board award had not become final but had been vacated and suspended by virtue of an appeal by Connecticut from a joint and several judgment against Connecticut and Security.

Security relies upon Maryland Casualty Co. v. Baker, 277 S.W. 204, (Tex.Civ.App., Waco, 1925, writ ref.); Southern Casualty Co. v. Fulkerson, 45 S.W.2d 152, (Comm. of Appeals, approved by Supreme Court, 1932); and Travelers Insurance Company v. Fox, 364 S.W.2d 859, (Tex.Civ.App., Fort Worth, 1963, writ ref., n.r.e.). In Baker an award was made against Maryland Casualty Company and Ocean Accident & Guarantee Corporation, jointly and severally. Thereafter, Ocean gave notice of appeal, but Maryland did not. However, both Ocean and Maryland filed separate suits in the district court, and Marland also intervened in Ocean's suit. Thereafter, Baker filed suit against Maryland to enforce the award of the board made against both companies. The court said, '* * * the appeal duly perfected by giving notice and filing suit within the time prescribed * * * by the Ocean Accident & Guarantee Corporation, Limited, vacated, or at least suspended, the award of the board, and brought the entire case, with all of its parties and issues, before the district court of Milam county for final disposition by trial de novo, and said award, having been thus vacated or suspended, could not be made the basis of a suit in this court for its enforcement.'

In Fulkerson, the plaintiff made a claim before the board against two insurance companies for compensation, and the board found against one company but for the other. The company against whom the award was made perfected its appeal and filed suit in the district court against both the plaintiff and the other company. Plaintiff then filed pleadings alleging both companies were his coinsurers and sought recovery, jointly and severally, against both. After a jury trial, the court rendered a joint and several judgment against both alleged insurers. Both companies appealed to the Court of Civil Appeals which held no recovery could be had against the company in whose favor the board had ruled because the appeal by the losing company before the board did not operate to appeal the plaintiff's cause against the winning company before the board. The Supreme Court, through the Commission of Appeals, said the purpose of Article 8307, sec. 5, Vernon's Ann.Civ.St. is 'to allow any party interested, who has been brought under the jurisdiction of the board, to carry the entire case to the court, and to vest the court with power to take up the litigation of the several parties and try the cause just as fully and completely as though the suit had begun in such court in the first instance. * * * all that is necessary to confer jurisdiction on the court over all parties and issues originally brought before the board is for one of the interested parties over whom the board had jurisdiction to bring the cause of action before the court in the manner and within the time required by the act. * * * When the cause was duly brought before the court, the burden was on claimant to plead and prove his asserted cause of action against the alleged coinsurers just as he would have had to do if the court had had jurisdiction to begin with.' The court specifically approved the Baker case.

In the Fox case there were three parties before the board, and an appeal was perfected by one party against a second party, but the third party was not made a party to the district court suit, but upon discovery that a suit had been filed such third party filed a separate suit to enforce the board award in her favor and to enjoin the suit which was then pending between the other two parties. The court held that when an appeal is taken and perfected from the action of the board, the order of the board becomes a nullity and that 'the final award, rulings, orders and decisions of the Industrial Accident Board were completely vacated, nullified, suspended, and set aside as to all parties and issues involved. That the entire subject matter before the Board...