Twin City Fire Ins. Co. v. Cortez

• Decision Date: 20 December 1978
• Docket Number: No. B-7576,B-7576
• Citation: 576 S.W.2d 786
• Parties: TWIN CITY FIRE INSURANCE COMPANY, Petitioner, v. Anita CORTEZ et al., Respondents.
• Court: Texas Supreme Court

Page 786

576 S.W.2d 786

TWIN CITY FIRE INSURANCE COMPANY, Petitioner, v. Anita CORTEZ et al., Respondents.

No. B-7576.

Supreme Court of Texas.

Dec. 20, 1978.

Rehearing Denied Feb. 28, 1979.

Gibson, Ochsner & Adkins, Mac W. Hancock, III, Amarillo, Strasburger & Price, Royal H. Brin, Jr., Dallas, for petitioner.

Mike Millsap and Tom West, Lubbock, for respondents.

GREENHILL, Chief Justice.

The main question presented in this workers' compensation case is whether the beneficiaries of an award of weekly death benefit payments are entitled to mature such an award and recover a lump sum payment on the entire award when the insurance carrier fails, without justifiable cause, to make timely payments. The second question is whether, in the event that the lump sum payment is allowable, the payment is to be calculated without a discount for early payment of future benefits. The trial court rendered judgment for the beneficiaries, giving them a lump sum payment, without discount, on the entire award. The Court of Civil Appeals affirmed. 562 S.W.2d 940. We agree with the lower courts' conclusion that a lump sum payment is proper in this case. We disapprove, however, of the refusal to allow a discount. We therefore reverse the judgments of both courts below and remand the cause to the District Court for the rendition of judgment in accordance with this opinion.

On November 19, 1973, Pedro Cortez, while acting in the course of his employment, suffered accidental injuries resulting in his death. On March 18, 1975, the Industrial Accident Board awarded workers' compensation benefits to Anita Cortez, the surviving widow, and to the six minor children of Pedro and Anita Cortez. The Board ordered Twin City Fire Insurance Company to pay benefits of $63.00 per week. These benefits were apportioned among Mrs. Cortez, her minor children, and her attorneys. The order directed that the weekly payments be continued until Mrs. Cortez's death or remarriage. By subsequent agreement of the parties and approval of the Board, the attorney's fee portion of the award was paid in a lump sum, discounted at four per cent; and no point regarding the attorney's fee is before us.

Pursuant to the order of the Board, the company began making weekly payments to Mrs. Cortez. Due to a bookkeeping error, however, the company failed to make payments to Mrs. Cortez, either individually, or for the use and benefit of her minor children, during the period from June 14 to July 25 of 1976. The trial court found this failure to be "without justifiable cause," and Twin City does not here complain of that conclusion.

On July 21, 1976, Mrs. Cortez and her children brought this suit against Twin City Fire Insurance Company, seeking to mature the death benefits award into a lump sum and to collect a twelve per cent penalty on the sum together with attorney's fees.

Lump Sum Payment

The statute on which this suit is based, article 8307, section 5a, ¹ provides, in part:

Where the board has made an award against an association requiring the payment to an injured employe or his beneficiaries of any weekly or monthly payments, under the terms of this law, and such association should thereafter fail or refuse, without justifiable cause, to continue to make said payments promptly as they mature, then the said injured employe or his beneficiaries, In case of his death, shall have the right to mature the entire claim and to institute suit thereon to collect the full amount thereof, together with twelve per cent penalties and attorney's fees, as herein provided for. Suit may be brought under the provisions of this section, either in the county where the accident occurred, or in any county where the claimants reside, or where one or more of such claimants may have his place of residence at the time of the institution of the suit. (Emphasis added).

It will be noted that this provision specifically provides for the maturing of an award in the case of the death of a worker. Moreover, the enforcement statute entitles a claimant to recover both past-due installments and future benefits. See Home Indemnity Co. v. Mosqueda, 473 S.W.2d 456 (Tex.1971); Vestal v. Texas Employers Insurance Association, 285 S.W. 1041 (Tex.Com.App.1926, judgmt adopted); Middlebrook v. Texas Indemnity Insurance Co., 112 S.W.2d 311 (Tex.Civ.App. Dallas), Writ dism'd w. o. j. per curiam, 131 Tex. 163, 114 S.W.2d 226 (1938).

Twin City contends, however, that such a lump sum recovery of both past and future benefits is impermissible as to an award of death benefits. Under article 8306, section 8, of the Workers' Compensation Act, the widow or widower of a deceased employee receives an award of weekly benefits that continues until either the death or remarriage of the beneficiary. The benefits payable to a child of the deceased may continue, under certain circumstances, until the child reaches twenty-five years of age, or for as long as the child is "actually dependent." ² Article 8306, section 8(d), places the following limitation on an award of death benefits to a widow, widower, or children:

The benefits payable to a widow, widower, or children under this section shall not be paid in a lump sum except in It is Twin City's contention that this provision, which was enacted subsequent to the enforcement provision of article 8307, section 5a, either limits or partially repeals the enforcement statute so as to prevent lump sum awards of future death benefits.

events of remarriage or in case of bona fide disputes as to the liability of the association for the death. Any settlement of a disputed case shall be approved by the board or court only upon an express finding that a bona fide dispute exists as to such liability.

We do not agree. As noted, the enforcement provision of article 8307, section 5a, explicitly applies to death benefits. In order to hold that the recent amendment to the statute, which limits the payment of a lump sum pursuant to an original award, also limits the payment of a lump sum under the enforcement statute, this court would be required to find that the newer statute has impliedly repealed the older provision. Repeal of laws by implication is not favored. Wintermann v. McDonald, 129 Tex. 275, 102 S.W.2d 167, 171 (1937). Unless a contrary intent is clearly shown, the Legislature is presumed to have enacted new or revised statutes with knowledge of the existing state of the law and with the intent that the new law be subject to the old. Allen Sales & Servicenter, Inc. v. Ryan, 525 S.W.2d 863, 866 (Tex.1975). Thus, when there is no clear repugnance between the provisions of old and new statutes, the duty of this court is to reconcile them and to construe both statutes so as to give effect to each. Wintermann v. McDonald, supra. In the absence of a clear conflict, each provision of the Workers' Compensation Act is to be construed with every other provision to produce a harmonious whole. No single portion of the Act should be read as if standing alone. See Black v. American Bankers Insurance Co., 478 S.W.2d 434 (Tex.1972).

An analysis of the function and legislative history of these statutes, as well as related provisions, leads to a conclusion that there is no real conflict between the two statutes in question. Article 8306, section 8, sets out the means of compensating the beneficiaries of a deceased worker. It provides that these benefits are to be paid weekly. Other provisions of the Act similarly prescribe weekly payments to an injured worker. ³ Thus, weekly, rather than lump sum payments, are the usual method of compensating both injured workers and beneficiaries under the Act.

The Act does contain, however, a general provision allowing parties to agree to a lump sum settlement. This provision also allows the Industrial Accident Board or a court, on appeal from a Board award, to award a lump sum payment if manifest hardship or injury would otherwise result. ⁴ Although the statute specifically refers only to the authority of the Board, it has long been construed to apply to a court in which a trial de novo is held pursuant to an appeal from the Board's decision. See Lumbermen's Reciprocal Association v. Behnken, 112 Tex. 103, 246 S.W. 72 (1922).

Until the 1973 amendment of article 8306, section 8, this general statute on lump sum payments governed both injury and death benefits. In that year, the Legislature restricted lump sum awards of death benefits to two situations: when the widow or widower remarries, and when a bona fide dispute exists as to the liability of the insurance carrier for the death. A major reason for this special limitation on death benefit awards is, apparently, the fact that in 1973 the Legislature also removed the 360-week Twin City contends that the limitations placed on lump sum payments of death benefits under article 8306, section 8, render a judgment for a lump sum under the enforcement statute impermissible. A comparison of the purpose of article 8306, section 8, the statute on awards of death benefits, and the purpose of enforcement provisions of article 8307, section 5a, however, shows that such is not the case. As stated earlier, the purpose of an original death benefit award is compensation, which the Legislature has indicated is, in most cases, best effected by weekly payments rather than a lump sum award. The main purposes of article 8307, section 5a, however, are to discourage insurance carriers from defaulting on their payments and to provide claimants with an effective, complete remedy in the event of such defaults. As indicated by the express language of the statute, the Legislature has chosen a lump sum award as the best means of fulfilling the purposes of the enforcement provision of article 8307, section 5a.

maximum time limit on the payment of death benefits so as to allow the benefits to continue until either the death or remarriage of the widow or widower. At present, death benefits are the only benefits recoverable under ...