Westerhaus v. Liberty Mut. Ins. Co.
| Decision Date | 11 September 1995 |
| Docket Number | No. 05-95-00037-CV,05-95-00037-CV |
| Citation | 910 S.W.2d 67 |
| Parties | Stacie Marie WESTERHAUS, Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, Appellee. |
| Court | Texas Court of Appeals |
Dean Carlton, Law Offices of Dean Carlton, Dallas, TX, for appellant.
Ervin A. Apffel, Jr., Galveston, TX, Kenneth J. Bower, McLeod, Alexander, Powel & Apffel, P.C., Galveston, TX, for appellee.
Before LAGARDE, OVARD and WRIGHT, JJ.
This is a summary judgment case. Liberty Mutual Insurance Company (Liberty) petitioned for a declaratory judgment that Stacie Marie Westerhaus was no longer entitled to death benefits awarded in a 1982 workers' compensation judgment after her father died. Liberty moved for summary judgment. The trial court granted summary judgment for Liberty. In one point of error, Westerhaus argues the trial court erred in granting Liberty's summary judgment motion because the summary judgment evidence did not establish Westerhaus was no longer dependent as a matter of law. We reverse the trial court's judgment.
Westerhaus' father was killed in an accident while within the course and scope of his employment when Westerhaus was still a child. Westerhaus' mother brought a workers' compensation action as Westerhaus' next friend against the carrier, Liberty. After a jury trial, Westerhaus was awarded a lump sum of $19,042 and weekly death benefits, net of attorneys fees, of $78.74 in 1982. The benefits were to continue until Westerhaus became eighteen years old, and thereafter for as long as she remained dependent. The judgment included a finding that Westerhaus was "actually dependent at the time of her father's death ... and will in all probability be actually dependent until she reaches 18 years of age and thereafter for the remainder of her life." The judgment also provided "any party may seek re-adjudication of the future actual dependency," requiring a "showing of material change of the then circumstance of dependency." Evidence of Westerhaus' learning disability was introduced at trial.
Liberty filed a petition for declaratory judgment on August 31, 1993, asserting Westerhaus was no longer dependent. Liberty subsequently filed a motion for summary judgment, attaching Westerhaus' responses to Liberty's request for admissions and a portion of Westerhaus' deposition transcript. Westerhaus' response to Liberty's motion for summary judgment included Westerhaus' affidavit.
The trial court granted summary judgment in favor of Liberty. In its final judgment, the trial court decreed Westerhaus was not "dependent" and excused Liberty from making further payments to Westerhaus.
The trial court renders its decision on summary judgment based upon "(i) the deposition transcripts, interrogatory answers, and other discovery responses referenced or set forth in the motion or response, and (ii) the pleadings, admissions, affidavits, stipulations of the parties, and authenticated or certified public records, if any, on file at the time of the hearing." TEX.R.CIV.P. 166a(c). When we review a trial court's granting of summary judgment, we apply the standards mandated by the Texas Supreme Court. They are:
1. The movant for summary judgment has the burden of showing there is no genuine issue of material fact and that he is entitled to judgment as a matter of law.
2. In deciding whether a disputed material fact issue exists, we accept as true evidence favorable to the non-movant.
3. We indulge in every reasonable inference and resolve any doubts in the non-movant's favor.
See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). "Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal." TEX.R.CIV.P. 166a(c); see State Bd. of Ins. v. Westland Film Indus., 705 S.W.2d 695, 696 (Tex.1986); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 677 (Tex.1979).
The summary judgment rule provides a method of summarily ending a case that involves only a question of law and no genuine fact issues. Port Distrib. Corp. v. Fritz Chem. Co., 775 S.W.2d 669, 670 (). It does not provide for trial by deposition or affidavit. See Gaines v. Hamman, 163 Tex. 618, 626, 358 S.W.2d 557, 563 (1962). The trial court determines if any fact issues exist; it does not evaluate the evidence and decide the case on affidavits. Gulbenkian v. Penn, 151 Tex. 412, 416, 252 S.W.2d 929, 931 (1952); Ross v. Texas One Partnership, 796 S.W.2d 206, 209 (Tex.App.--Dallas 1990), writ denied per curiam, 806 S.W.2d 222 (Tex.1991). The summary judgment rule eliminates a patently unmeritorious claim or an untenable defense. It is not meant to deprive litigants of a full hearing on the merits of any real issue of fact. TEX.R.CIV.P. 166a(c); see Gulbenkian, 151 Tex. at 416, 252 S.W.2d at 931.
We will reverse the summary judgment and remand the cause for a trial on the merits if the summary judgment was improperly granted. Tobin v. Garcia, 159 Tex. 58, 63-64, 316 S.W.2d 396, 400 (1958).
The right of the deceased employee's dependent children to recover death benefits is to be determined by the facts as they exist at the time of the deceased's death. Act of May 29, 1979, 66th Leg., R.S., ch. 323 § 1, 1979 Tex.Gen.Laws 730, repealed by Act of November 21, 1989, 71st Leg., 2nd C.S., ch. 1, § 16.01(7), 1989 Tex.Gen.Laws 1, 114. 1 An "adult dependent child" is entitled to death benefits under the compensation act. Act of April 19, 1973, 63rd Leg., R.S., ch. 88, § 4, 1973 Tex.Gen.Laws 187, 188, repealed by Act of November 21, 1989, 71st Leg., 2nd C.S., ch. 1, § 16.01(7), 1989 Tex.Gen.Laws 1, 114; 2 see also Hartford Accident & Indem. Co. v. Crowley, 509 S.W.2d 939, 941 (Tex.Civ.App.--Waco 1974, writ ref'd n.r.e.).
In the workers' compensation context, an approved definition of "dependent" for submission to the jury is "one who is sustained by another or relies in whole or in part for support upon the aid of another, who looks to another for support, and relies on another in whole or in part for reasonable necessaries in substantial amount aiding the Recipient to live consistent with the Dependent's or Recipient's position in life." Stanaland v. Traders & General Ins. Co., 145 Tex. 105, 112, 195 S.W.2d 118, 122 (1946). Inherent in the word "dependent" is a relationship in which one relies upon the aid of another for support. Croom v. Cochran, 379 S.W.2d 957, 959 (Tex.Civ.App.--Texarkana 1964, writ dism'd).
A claimant who is partially dependent on the deceased worker for support is entitled to compensation. Aetna Casualty & Sur. Co. v. Cassavaugh, 486 S.W.2d 815, 816 (Tex.Civ.App.--Houston [14th Dist.] 1972, writ ref'd n.r.e.). Partial dependency "may exist although the alleged dependent could have subsisted without the labor of the employee, or is not without the necessities of life." Industrial Accident Bd. v. Lance, 556 S.W.2d 101, 103 (Tex.Civ.App.--Amarillo 1977, no writ) (quoting Lumbermen's Reciprocal Ass'n v. Warner, 245 S.W. 664, 665 (Tex.Comm'n App.1922, judgm't adopted)).
The question of dependency is generally one of fact to be determined by the trier of facts, but if the facts are undisputed and lead to a definite conclusion, the court shall announce that conclusion as a matter of law. Texas Employers Ins. Ass'n v. Arnold, 127 Tex. 245, 250, 92 S.W.2d 1019, 1021 (1936).
Liberty argues that because "dependent" status at the time of the worker's death requires reliance on some other person, it follows that a readjudication of "dependent" status would be determined on whether the child (now an adult) was still dependent upon her family or other persons. Liberty presented a certified copy of the 1982 judgment as summary judgment evidence. Liberty also presented Westerhaus' responses to Liberty's requests for admissions, in which Westerhaus admitted she no longer resided with her mother, was not covered under her mother's insurance, did not have her utilities or medical needs provided by her mother, received no financial support from her mother during the preceding 24 months, and received no support for living or educational expenses from her mother during the preceding 24 months. Westerhaus admitted she had purchased her car without funds received from her mother, and that Westerhaus had claimed herself as a dependent on Westerhaus' federal tax returns for 1991, 1992 and 1993. Finally, Liberty presented one page from Westerhaus' deposition transcript, in which she stated she was currently taking one junior college class. Thus, Liberty asserts it proved Westerhaus was no longer dependent as a matter of law.
Liberty directs our attention to the Family Code, which provides for continued child support after the child has reached eighteen years of age if the child "requires substantial care and personal supervision because of a mental or physical disability and will not be able to support himself." TEX.FAM.CODE ANN. § 14.051 (Vernon Supp.1995) (). Liberty's reliance on this statute is misplaced. We note that section 14.051 of the Family Code does not focus on whether the child is dependent upon a particular person. Further, a mildly retarded young man who successfully progressed to living in his own apartment, requiring, at the very least, "intermittent contact with state social workers indefinitely, perhaps for the rest [of the child's] life" still met the requirements of "continuous care and personal supervision because of a mental or physical disability." Rose v. Rubenstein, 693 S.W.2d 580, 582-83 (Tex.App.--Houston [14th Dist.] 1985, writ dism'd).
This is contrary to Liberty's argument that Westerhaus was no longer entitled to workers' compensation death benefits because she was not...
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