U.S. Fire Ins. Co. v. Pettyjohn

• Decision Date: 09 October 1991
• Docket Number: No. 2-90-156-CV,2-90-156-CV
• Citation: 816 S.W.2d 839
• Parties: UNITED STATES FIRE INSURANCE COMPANY, Appellant, v. Bobby R. PETTYJOHN, Appellee.
• Court: Texas Court of Appeals

Page 839

816 S.W.2d 839

UNITED STATES FIRE INSURANCE COMPANY, Appellant, v. Bobby R. PETTYJOHN, Appellee.

No. 2-90-156-CV.

Court of Appeals of Texas Fort Worth.

Oct. 9, 1991.

Milner & Walters, P.C., Gary A. Walters, and S. Camille Milner, Denton, for appellee.

Fillmore & Harrington, Veronica M. Carmona and Patrick Gallagher, Fort Worth, for appellant.

Before HILL, FARRIS and MEYERS, JJ.

OPINION

HILL, Justice.

United States Fire Insurance Company appeals from a judgment in favor of Bobby R. Pettyjohn for workers' compensation benefits. In seven points of error, U.S. Fire contends that the trial court erred: (1) by disregarding certain jury findings and awarding judgment to Pettyjohn; (2) by granting Pettyjohn's motion for leave to supplement interrogatories; (3) by allowing certain witnesses to testify; and (4) by permitting Pettyjohn's attorney to conduct improper voir dire examination. In a cross-point of error, Pettyjohn asserts that the trial court erred by entering judgment in his favor for 367 weeks of benefits with the first payment beginning the first Friday after the date of judgment because the court failed to award accrued weekly benefits from the date of total and permanent incapacity to the date of judgment.

We affirm because we hold that: (1) there was no evidence that Pettyjohn made an election when he accepted health benefits; (2) U.S. Fire's verified denial of the wage rate filed just prior to trial constituted good cause for the supplementation of Pettyjohn's interrogatories; (3) we cannot hold that the trial court abused its discretion in allowing testimony concerning two doctors' opinions on the basis of Pettyjohn's alleged failure to provide their opinions to U.S. Fire in response to interrogatories where, in response to those interrogatories, Pettyjohn made reference to medical narrative reports attached to his responses to U.S. Fire's request for production and our record does not contain the reports Pettyjohn produced; (4) any error of Pettyjohn's attorney on voir dire was not such an error as was reasonably calculated to cause and probably did cause an improper judgment; and (5) any error in the judgment as to the payment of benefits was induced by Pettyjohn because the judgment signed by the court was submitted to the court by Pettyjohn.

U.S. Fire argues in points of error numbers one, two, and three that the trial court erred by disregarding the jury's findings that Pettyjohn, by making a claim for and receiving certain health insurance benefits, made an election.

A jury's answer to a question may be disregarded only when it has no support in the evidence or when the issue is immaterial. C & R Transport, Inc. v. Campbell, 406 S.W.2d 191, 194 (Tex.1966); TEX.R.CIV.P. 301.

The election of remedies doctrine "may constitute a bar to relief when (1) one successfully exercises an informed choice (2) between two or more remedies, rights, or states of facts (3) which are so inconsistent as to (4) constitute manifest injustice." Bocanegra v. Aetna Life Ins. Co., 605 S.W.2d 848, 851 (Tex.1980). The term "election" in the jury's question was defined in a manner consistent with Bocanegra. The question was therefore material. We next consider whether there is evidence to support the jury's finding.

On June 26, 1987, Pettyjohn was injured in an automobile accident while working for Dye Corporation. He testified that when the accident occurred he experienced a headache, that his neck and shoulder were hurting, and that his right leg felt funny. He said that his leg and hip started hurting at the time of the accident and progressively worsened until the time of trial.

After the accident, Pettyjohn went to work for the Alvord Independent School District as a maintenance man and school bus driver from July 21, 1987, until March 1, 1988. In January, 1988, Pettyjohn filled out a report in his doctor's office concerning the accident. In the report he checked a blank describing the accident as an automobile collision, but did not check a blank describing the accident as an on-the-job injury. He related the following symptoms he had had since the accident: headache, stiffness in his neck, and pain in his neck, back, and right leg. Also in January, when seeking treatment from Dr. Ronald Rupert, a chiropractor, Pettyjohn stated on a form that he would be responsible for the account. He listed his health insurance carrier as the name of his insurance company. Health insurance claim forms signed by Pettyjohn seeking health insurance benefits for the services of Dr. Rupert and the Magnetic Resonance Center represent that his condition was not related to his employment. Pettyjohn acknowledged in his testimony that he had represented that his injury was not work related.

Dr. Rupert testified that he filed claims with Pettyjohn's health insurance carrier and received payment from them for the services he rendered to Pettyjohn.

The jury question included an instruction that an "election" occurs when one successfully exercises an informed choice between two or more remedies which are so inconsistent as to constitute manifest injustice. The term "informed choice" was defined as a choice made with a full and clear understanding of the problem, facts and remedies essential to the exercise of an informed intelligent choice.

There is no evidence that Pettyjohn knew that his injury was work-related at the time he completed his health insurance forms or that he understood that he was...