Smith v. Home Indem. Co.

• Decision Date: 17 January 1985
• Docket Number: No. 2-84-074-CV,2-84-074-CV
• Citation: 683 S.W.2d 559
• Parties: Newell G. SMITH, Appellant, v. The HOME INDEMNITY COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 559

683 S.W.2d 559

Newell G. SMITH, Appellant, v. The HOME INDEMNITY COMPANY, Appellee.

No. 2-84-074-CV.

Court of Appeals of Texas,

Fort Worth.

Jan. 17, 1985.

Gene Gaines, Dallas, for appellant.

Strasburger & Price, and P. Michael Jung and Michael R. Buchanan, Dallas, for appellee.

Before HUGHES, JOE SPURLOCK, II and HILL, JJ.

OPINION

JORDAN, Justice.

Newell G. Smith appeals from a summary judgment granted by the trial court in favor of The Home Indemnity Company in two separate worker's compensation cases, consolidated for trial. The insurance company had moved for summary judgment alleging that the claims were filed after six months from the alleged date of injury without good cause for late filing, and Smith had made a voluntary, knowing and intelligent election of remedies by making claims upon and receiving benefits from his employer's group health insurance. The trial court, without stating a reason, granted the motion and Smith appeals on two grounds of error.

We affirm.

The summary judgment proof consisted of: the pleadings, two depositions of appellant Smith, the deposition of the Custodian of Records for Lincoln National Life Insurance Company, the employer's group health insurance carrier, facts deemed admitted by order of the trial court, and certified copies of the Industrial Accident Board's files in these worker's compensation cases.

On June 3, 1980, while in the employ of Safeway Stores, Inc. (Safeway), Smith allegedly suffered an occupational injury to his left foot, and was off work from June 4 through September 7, 1980, and again from November 13, 1980 through November 8, 1981. He underwent surgery on his left foot on November 19, 1980. This alleged occupational injury was not reported to Safeway, the employer, within thirty days of the alleged date of injury, June 3, 1980. On July 9, 1980, approximately one month after the alleged injury, Smith filed a claim with Lincoln National Life Insurance Company, Safeway's group insurance carrier, stating in his application that his injury was not incurred in connection with his work. By requests for admissions which were not answered by Smith and which were deemed admitted by the trial court, Smith admitted that at the time he applied for the group insurance benefits, he understood that Safeway's group health and disability plan covered off-the-job injuries and that Safeway's worker's compensation plan covered on-the-job injuries. He also admitted this in his deposition. Appellant thereafter received the full medical and disability benefits available under Safeway's group coverage, including surgery on his left foot in November of 1980 paid for by Lincoln National Life.

On May 12, 1981, more than eleven months after his claimed injury, Smith filed a claim for Worker's Compensation with the Industrial Accident Board, claiming that his disability was work-related. He filed his notice of injury with his employer on July 21, 1981, and Safeway filed Employer's First Report of Injury on July 22, 1981. By the requests for admissions, which went totally unanswered and which were deemed admitted by the court, it was established that Smith failed to give notice of the alleged injury of June 3, 1980 within thirty days from that date, and that he failed to file his claim for compensation within six months from that date. Appellant continued to accept group insurance benefits, obtained because of his representation that the disability was not work-related, even after he filed his claim for worker's compensation.

Smith also alleged that he sustained an identical occupational injury to his right foot on November 20, 1981, right after he returned to work, but he again filed for and received group insurance benefits in connection with this second alleged occurrence. He also later filed a worker's compensation claim for the November 20, 1981 incident.

Before considering the points of error raised on this appeal, we deem it necessary to comment on the effect of appellant's unanswered requests for admissions, some sixteen admissions having been deemed by the court because of his failure to answer. Smith erroneously argues that his deposition testimony contradicts his deemed admissions, thereby creating a fact question. Such is just not the case. TEX.R.CIV.P. 169 specifically states in part that any matter admitted under this rule is conclusively established as to the party making the admission unless the court on motion permits withdrawal or amendment of the admission. Smith totally ignored the requests for admissions and they went unanswered, without a motion to extend time for answering, or any other limiting motion, right up through the trial of this case. Neither did he move the court to withdraw or amend the admissions after they had been deemed by the court. Admissions, once made or deemed by the court, may not be contradicted by any evidence, whether in the form of live testimony or summary judgment affidavits. Henke Grain Co. v. Keenan, 658 S.W.2d 343, 347 (Tex.App.--Corpus Christi 1983, no writ); American Title Company v. Smith, 445 S.W.2d 807, 809 (Tex.Civ.App.--Houston [1st Dist.] 1969, no writ). Where a party fails to respond to a request for admissions, "he will be precluded from offering summary judgment proof contradictory to those admissions." Henke, 658 S.W.2d at 347.

Smith's second point of error is based on claimed error in the granting of the summary judgment on the theory of election of remedies. In this regard he says that the affidavit of the custodian of the records of the group carrier suggests that the group insurance and worker's compensation remedies were not in fact inconsistent, contending that the relationship of the two policies with each other was ambiguous and confusing. This theory is refuted by his admissions which establish not only that the group insurance remedy was limited to non-work-related disability, but that Smith knew this to be true. He next contends that under this summary judgment record there was medical uncertainty as to whether his foot problems were work connected or not, relying on a September 3, 1980 insurance claim form on which his podiatrist checked the box for work-related disability. The problem with this argument is that there is no evidence of any kind, deposition testimony or affidavit, that Smith ever saw this form or that he was ever told by the podiatrist or any other physician that his condition was work-related. Smith never filed an affidavit in response to Home Indemnity Company's motion for summary judgment. He did not rely on this September 3, 1980 claim form because he never saw it.

As previously stated, the summary judgment proof showed that Smith applied for group insurance benefits known by him to be available only for a non-work-related disability. He thereafter accepted such benefits, both before and after he filed the worker's compensation claims which formed the basis of this suit. The inconsistent positions taken by Smith in his application for and acceptance of group benefits, on the one hand, and in his present worker's compensation claims amounted to inconsistent remedies and formed the basis for the granting of the summary judgment.

A case with a similar fact situation is Overstreet v. Home Indemnity Co., 669 S.W.2d 825 (Tex.App.--Dallas), rev'd, 678 S.W.2d 916 (Tex.1984). In that case the claimant first sought group insurance benefits, representing in writing that her disability was not work-related: then, later, following surgery, she decided the problem was work-related and filed her worker's compensation claim. Overstreet, 669 S.W.2d at 826. In Overstreet also there were requests for admissions which were deemed admitted by the trial court. Id. at 827. The Court of Appeals held the facts in Overstreet sufficient to warrant summary judgment for the compensation carrier on the grounds of election of remedies as announced in Bocanegra v. Aetna Life Ins. Co., 605 S.W.2d 848 (Tex.1980). Overstreet, 669 S.W.2d at 827-28. The Supreme Court, however, reversed and remanded the case to the Court of Appeals for consideration of other points of error. Overstreet, 678 S.W.2d at 916. This very brief, rather opaque per curiam opinion simply said that "a majority of this court is of the opinion that the admissions do not establish as a matter of law that Overstreet made an 'informed' election under the rule of Bocanegra...." Overstreet, 678 S.W.2d at 916.

The admissions deemed against Smith, some of which are later referred to, are somewhat different than the admissions in Overstreet. Additionally, in this case, there were two depositions of appellant which were made part of the summary judgment record. Moreover, there is testimony, particularly...