Roy HERNANDEZ, Individually and d/b/a Hernandez Roofing, Appellant and Appellee, v. Philip LAUTENSACK, Appellee and Appellant.
No. 2-05-085-CV.
Decided: April 13, 2006
Panel A: CAYCE, C.J.; HOLMAN and GARDNER, JJ.
OPINION
I. Introduction
Roy Hernandez, individually and d/b/a/ Hernandez Roofing and Philip Lautensack filed cross appeals from a judgment in favor of Lautensack concerning the roof Hernandez put on Lautensack’s house. In three issues, Hernandez argues that Lautensack’s presuit notice under the Residential Construction Liability Act was untimely, that there was no evidence that Lautensack’s alleged damages were reasonable, and that the trial court erred in awarding attorney’s fees to Lautensack because his presuit demand was excessive. In two issues, Lautensack argues that the evidence conclusively proved his attorney’s fees in an amount double what the jury awarded to him and that the trial court erred by refusing to reopen testimony so that Lautensack’s counsel could testify about appellate attorney’s fees. We modify the trial court’s judgment and affirm it as modified.
II. Factual and Procedural Background
In 1999, Lautensack hired Hernandez to replace the slate tile roof on Lautensack’s residence at a cost of $20,000. The new roof had many leaks that Hernandez was unable to stop. In 2002, Hernandez told Lautensack that the leaks were the result of hail damage and offered to replace the roof for $9,100 in labor charges if Lautensack provided new slate tiles at a cost of $25,000. Unhappy with Hernandez’s prior work, Lautensack hired another roofer, Kip Petty, to install a new cement tile roof for $32,300. Petty documented several defects in Hernandez’s previous roofing job, including lack of proper underlayment, lack of metal flashing, and improper tile spacing. Petty replaced the roof in September 2002.
Lautensack sent Hernandez a claim notice letter on February 12, 2003, by certified and regular mail. The letter described various problems with the roof, alleged breaches of express warranties and DTPA violations, and threatened litigation unless Hernandez paid Lautensack $41,880. The certified letter was returned unclaimed; the regular letter was not returned. Hernandez did not reply.
Lautensack sued Hernandez on April 17, 2003, for breach of contract, misrepresentation, fraud, and deceptive trade practices and sought actual damages, attorney’s fees, and exemplary damages. Hernandez responded with a plea in abatement claiming that Lautensack had failed to serve the requisite presuit notice under the Residential Construction Liability Act (“RCLA”). See Tex. Prop.Code Ann. §§ 27.001-.003 (Vernon Supp.2005), .0031 (Vernon 2000), .004 (Vernon Supp.2005), .0041 (Vernon 2000), .0042 (Vernon Supp.2005, .005-.006 (Vernon 2003), .007 (Vernon Supp.2005). Though Lautensack contended that his first letter was sufficient notice under the RCLA, he eventually sent a second notice letter in response to Hernandez’s plea in abatement.
The case was ultimately tried to a jury. The jury returned a verdict in favor of Lautensack on all causes of action and awarded him $24,750 in actual damages plus $10,680 in attorney’s fees. The jury also found that Lautensack’s RCLA notice was untimely because it did not give Hernandez the opportunity to inspect the alleged roof defects and offer to repair them. For reasons not relevant to this appeal, the trial court disregarded the jury’s answers to the breach of warranty and DTPA issues. The trial court then signed a judgment in favor of Lautensack for the amounts awarded by the jury. Both parties appealed.
III. Discussion
A. Hernandez’s Issues 1. Timeliness of RCLA notice
In his first issue, Hernandez argues that the trial court erred by rendering judgment for Lautensack because the jury found that Lautensack’s presuit notice failed to meet the requirements of the RCLA. We disagree.
Section 27.004 of the RCLA provides that a claimant seeking damages arising from a contractor’s construction defect must give the contractor written notice of the alleged defect more than sixty days before filing suit. Tex. Prop.Code Ann. § 27.004(a). After receiving notice, the contractor has thirty-five days to inspect the property and forty-five days to make a written offer of settlement. Id. § 27.004(a)-(b). Under the RCLA as amended in 2003, failure of the claimant to give the requisite presuit notice results in dismissal of the suit. Id. § 27.004(d). But as Hernandez concedes in his brief, the prior version of the RCLA applicable to this suit contained no dismissal provision; instead, it provided for abatement of a suit where the claimant failed to provide the requisite presuit notice. See Act of May 17, 1995, 74th Leg., R.S., ch. 414, § 10, 1995 Tex. Gen. Laws 2988, 2996 (amended 2003) (current version at Tex. Prop.Code Ann. § 27.004(d)).
The trial court submitted the following question to the jury as part of the charge:
Do you find that, 60 days preceding the filing of this suit by Philip Lautensack against Roy Hernandez, Philip Lautensack gave written notice by Certified Mail/Return Receipt Requested to Roy Hernandez specifying, in reasonable detail, the construction defects that are the subject of the complaint at a time when Roy Hernandez could have performed any of the following:
a. Within 35 days of receipt of the written notice, Roy Hernandez had a reasonable opportunity to inspect the property, to determine the nature and cause of the construction defect and the nature and extent of repairs necessary to remedy the construction defect?
․
b. Within 45 days of receipt of the written notice, make an offer to repair, or to have repaired by an independent contractor at Roy Hernandez’s expense, the construction defect described in the notice?
The jury answered “no” to both parts of the question.
Hernandez argues that the jury’s answers to this question compel a judgment in his favor. Hernandez does not argue that the content of Lautensack’s notice was deficient; rather, he argues that by replacing the roof before he sent his notice letter, Lautensack deprived Hernandez of the opportunity to inspect the property and offer to repair the alleged defects under RCLA section 27.004.
We reject Hernandez’s argument for several reasons. First, the practical effect of Hernandez’s argument is to engraft the dismissal provision of the current RCLA onto the prior version that controls this case. This we cannot do. We must apply the law as the legislature wrote it. Reese v. Duncan, 80 S.W.3d 650, 658 (Tex.App.-Dallas 2002, pet. denied). Second, the RCLA’s intent to give a contractor a reasonable opportunity to inspect the property upon request was effectuated under the facts of this case. The undisputed evidence at trial proved that Hernandez did in fact inspect the roof many times when he attempted to repair leaks before it was replaced and submitted a bid to replace the roof in September 2002. Lautensack rejected Hernandez’s bid and chose to have his roof replaced by another contractor. Third, the RCLA expressly provides that a contractor may make a monetary settlement offer, not just an offer to repair the defects. Tex. Prop.Code Ann. § 27.004(b), (n). The fact that Lautensack had the defective roof replaced before he sent his notice letter did not deprive Hernandez of the opportunity to inspect the roof, make an offer to repair or replace the roof, or make a timely, monetary settlement offer.
The version of the RCLA that governs this suit simply does not provide for the result that Hernandez seeks. We overrule his first issue.
2. No evidence of reasonable cost of repair
In his second issue, Hernandez argues that there was no evidence that Lautensack’s repair costs were reasonable. We disagree.
A legal sufficiency challenge may only be sustained when: (1) the record discloses a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex.1998), cert. denied, 526 U.S. 1040, 119 S.Ct. 1336, 143 L.Ed.2d 500 (1999); Robert W. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 TEX. L. REV. 361, 362-63 (1960). In determining whether there is legally sufficient evidence to support the finding under review, we must consider evidence favorable to the finding if a reasonable factfinder could, and disregard evidence contrary to the finding unless a reasonable factfinder could not. City of Keller v. Wilson, 168 S.W.3d 802, 828 (Tex.2005).
A party seeking recovery for the cost of repairs must prove their reasonable value. Ebby Halliday Real Estate, Inc. v. Murnan, 916 S.W.2d 585, 589 (Tex.App.-Fort Worth 1996, writ denied). To establish the right to recover costs of repair, it is not necessary for a claimant to use the words “reasonable” and “necessary”; a claimant need only present sufficient evidence to justify a jury’s finding that the costs were reasonable and the repairs necessary. Id.; Ron Craft Chevrolet, Inc. v. Davis, 836 S.W.2d 672, 677 (Tex.App.-El Paso 1992, writ denied).
Kip Petty, the roofer who replaced the roof installed by Hernandez, testified without objection as an expert in residential roof installation generally and slate tile roofs specifically. Petty testified that Hernandez failed to install adequate metal flashing, failed to space the slate tiles far enough apart, and improperly installed the roof underlayment. He testified that because of these defects, the roof Hernandez installed “never had a chance” to be watertight. Petty determined after his first inspection that the roof could not be repaired and needed to be replaced. He testified that he bid $32,330 to replace the roof, and his invoice reflects that Lautensack paid the full amount.
Don Gove testified that he performed structural carpentry work on Lautensack’s house in conjunction with Petty’s roof replacement. Gove testified that Lautensack’s house was designed to carry a cedar shingle roof, which would weigh about a third as much as a slate tile roof. Gove replaced several rafters that had sagged or broken under the weight of Hernandez’s roof. He performed this work according to the recommendations of a structural engineer. Gove charged $2,400 for the structural work, plus another $1,500 for altering three dormer windows to accept appropriate flashing. Gove specifically testified that those repairs were necessary.
Other evidence showed that the Hernandez charged $20,000 for the roof he installed on Lautensack’s house and that Hernandez offered to replace his first roof for $9,100 plus $25,000 in slate to be provided by Lautensack. Hernandez himself offered the estimate of another roofer to replace just 419 out of the 14,000 to 15,000 slate tiles on Lautensack’s roof for $22,015. We conclude that this is some evidence to support the $24,750 in actual damages awarded by the jury as the reasonable cost of replacing Lautensack’s roof. We overrule Hernandez’s second issue.
3. Excessive demand
In his final issue, Hernandez argues that the trial court erred by awarding attorney’s fees to Lautensack because the jury found that Lautensack’s settlement demand was excessive. Once again, we disagree.
In Findlay v. Cave, the supreme court held that a creditor who makes an excessive demand on a debtor is not entitled to attorney’s fees under Tex.Rev.Civ. Stats. Ann.. art. 2226 (now chapter 38 of the civil practice and remedies code) for subsequent litigation required to recover the debt. 611 S.W.2d 57, 58 (Tex.1981); see Tex. Civ. Prac. & Rem.Code Ann. § 38.001-.002 (Vernon 1997). A demand is not excessive simply because it is greater than what the jury later determines is actually due. Pratt v. Trinity Projects, Inc., 26 S.W.3d 767, 769 (Tex.App.-Beaumont 2000, pet. denied). The dispositive inquiry for determining whether a demand is excessive is whether the claimant acted unreasonably or in bad faith. Id.; Allstate Ins. Co. v. Lincoln, 976 S.W.2d 873, 876 (Tex.App.-Waco 1998, no pet.). Application of this rule is limited to situations where the creditor refuses a tender of the amount actually due or indicates clearly to the debtor that such a tender would be refused. Findlay, 611 S.W.2d at 58.
In this case, the record contains no evidence that Hernandez ever tendered the amount actually due, that Lautensack refused any such tender, or that Lautensack indicated to Hernandez that such a tender would be refused. We hold, therefore, that there was legally insufficient evidence to support the jury’s finding that Lautensack’s demand was excessive and that the trial court did not err by disregarding that finding and awarding attorney’s fees to Lautensack. See Tex.R. Civ. P. 301 (providing that trial court may disregard any jury finding that has no support in the evidence). We overrule Hernandez’s third issue.
B. Lautensack’s Issues
1. Attorney’s fees
In his first issue, Lautensack argues that he conclusively proved reasonable and necessary attorney’s fees of $21,360 through the end of trial and that the trial court erred by awarding him only the $10,680 in attorney’s fees-exactly half the amount he claimed-that the jury found were reasonable and necessary.
The amount of reasonable attorney’s fees is usually a question for the fact finder. Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 882 (Tex.1990). The testimony of an interested witness on attorney’s fees generally does no more than raise a fact issue. Id. But testimony from an interested witness may prove attorney’s fees as a matter of law when the testimony is not contradicted by any other witness or attendant circumstances and is free from contradiction, inaccuracies, and circumstances tending to cast suspicion on the evidence, especially when the opposing party had the means and opportunity of disproving the testimony and failed to do so. Id.; see also Welch v. Hrabar, 110 S.W.3d 601, 610-11 (Tex.App.-Houston [14th Dist.] 2003, pet. denied); Elias v. Mr. Yamaha, Inc., 33 S.W.3d 54, 62-63 (Tex.App.-El Paso 2000, no pet.); Gulf Shores Council of Co-Owners, Inc. v. Raul Cantu No. 3 Family Ltd. P’ship, 985 S.W.2d 667, 677 (Tex.App.-Corpus Christi 1999, pet. denied).
In this case, Lautensack’s attorney, Mr. Holland, testified that Lautensack had incurred reasonable and necessary attorney’s fees through the end of trial of $21,360. He introduced as exhibits his monthly invoices, which reflected the work he performed, how long it took, and how much he charged for it. Hernandez cross-examined Holland extensively, but the focus of the cross-examination was whether Lautensack had complied with the RCLA’s notice requirements. The closest Hernandez came to controverting Lautensack’s attorney’s fees was when he asked whether the work Holland performed before sending the second demand letter was “premature,” to which Holland answered “no.” Because Holland answered the question in the negative, his fees remained uncontroverted.
No other witness contradicted Holland’s testimony; indeed, no other witness testified about attorney’s fees. Holland’s testimony and exhibits were free from contradiction, inaccuracy, and circumstances tending to cast suspicion on them. Hernandez had the opportunity to contradict Holland’s testimony but failed to do so.
We hold that Lautensack proved reasonable and necessary attorney’s fees of $21,360 as a matter of law and sustain his first issue.
2. Refusal to permit additional testimony
In his second issue, Lautensack argues that the trial court erred by refusing to reopen testimony so that he could offer evidence of his anticipated attorney’s fees in the court of appeals and supreme court.
Rule of procedure 270 provides that a trial court may permit additional evidence to be offered at any time when it clearly appears necessary to the administration of justice. Tex.R. Civ. P. 270. Rule 270 allows, but does not require, the court to permit additional evidence. Lopez v. Lopez, 55 S.W.3d 194, 201 (Tex.App.-Corpus Christi 2001, no pet.). In determining whether to grant a motion to reopen, the trial court considers whether: (1) the moving party showed due diligence in obtaining the evidence, (2) the proffered evidence is decisive, (3) reception of such evidence will cause undue delay, and (4) granting the motion will cause an injustice. Word of Faith World Outreach Ctr. Church v. Oechsner, 669 S.W.2d 364, 366-67 (Tex.App.-Dallas 1984, no writ). The decision to reopen is within the trial court’s sound discretion. Estrello v. Elboar, 965 S.W.2d 754, 759 (Tex.App.-Fort Worth 1998, no pet.). A trial court does not abuse its discretion by refusing to reopen a case after evidence is closed if the party seeking to reopen has not shown diligence in attempting to produce the evidence in a timely fashion. See id. The trial court should exercise its discretion liberally “in the interest of permitting both sides to fully develop the case in the interest of justice.” Word of Faith, 669 S.W.2d at 366-67.
Lautensack had every opportunity to put on evidence of his appellate attorney’s fees before the trial court closed the evidentiary phase of the trial. His attorney testified at length about his fees. Nothing in the record shows that Lautensack was diligent in attempting to produce evidence of his appellate attorney’s fees in a timely fashion, nor does he address the question of diligence in his brief. Under these circumstances, “the interests of justice do not warrant a second bite at the apple.” Estrello, 965 S.W.2d at 759. We hold that the trial court did not abuse its discretion by denying Lautensack’s motion to reopen the evidence. We overrule his second issue.
3. Motion for judicial notice
Lautensack has filed a motion requesting that we take judicial notice of his attorney’s affidavit and other documents filed in the trial court and attached to his brief in this court. Lautensack represents that those documents reflect what he would have claimed as appellate attorney’s fees if the trial court had allowed him to reopen the evidence. Because we hold that the trial court did not abuse its discretion by refusing to reopen the evidence, we deny Lautensack’s motion for judicial notice as moot.
IV. Conclusion
We overrule Hernandez’s issues and Lautensack’s second issue. We sustain Lautensack’s first issue and modify paragraph 2 of the trial court’s judgment to state, “Plaintiff is entitled to recover from Defendant reasonable and necessary attorney’s fees in the amount of $21,360.” We affirm the judgment as modified. See Tex.R.App. P. 43.2(b).
ANNE GARDNER, Justice.
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Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas civil litigation attorneys in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
Texas state Representative Kenneth Sheets filed legislation that would establishes a voluntary roofing contractor registration program with the Texas Department of Insurance (TDI).
Sheets said House Bill 1488, known as the Roofing Contractor Consumer Protection Act, would help protect consumers from unscrupulous roofing contractors. Under the bill, roofing contractors installing replacement roofs in Texas would have the option to register with TDI, placing them in a state-wide database maintained by the TDI.
“Texas property owners face some of the highest homeowners insurance rates in the nation, in large part because of the unique weather risks faced by the state,” Rep. Sheets said in a statement announcing the bill. “Sadly, the problem of severe weather is made worse by the influx of contractors to an affected area that are either unable or unwilling to perform quality work. Poor work causes more severe and frequent property claims for homeowners, which then leads to higher insurance rates.”
In addition to the creation of the state-wide database, HB 1488 tightens existing law by prohibiting all roofing contractors, regardless of their participation in the statewide registration, from rebating consumer insurance deductibles and requires disclosure to consumers the status of their liability insurance coverage.
“More often than not, the bad actors in the industry are not bonded or insured, leaving the homeowner without any recourse for work that is incomplete or improperly installed,” Rep. Sheets said. “A common sense disclosure requirement coupled with a voluntary registration database will provide consumers more tools to protect their properties from those who seek to take advantage of a catastrophe.”
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas civil litigation attorneys in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
TITLE 3. INSOLVENCY, FRAUDULENT TRANSFERS, AND FRAUD
CHAPTER 27. FRAUD
Sec. 27.02. CERTAIN INSURANCE CLAIMS FOR EXCESSIVE CHARGES. (a) A person who sells goods or services commits an offense if:
(1) the person advertises or promises to provide the good or service and to pay:
(A) all or part of any applicable insurance deductible; or
(B) a rebate in an amount equal to all or part of any applicable insurance deductible;
(2) the good or service is paid for by the consumer from proceeds of a property or casualty insurance policy; and
(3) the person knowingly charges an amount for the good or service that exceeds the usual and customary charge by the person for the good or service by an amount equal to or greater than all or part of the applicable insurance deductible paid by the person to an insurer on behalf of an insured or remitted to an insured by the person as a rebate.
(b) A person who is insured under a property or casualty insurance policy commits an offense if the person:
(1) submits a claim under the policy based on charges that are in violation of Subsection (a) of this section; or
(2) knowingly allows a claim in violation of Subsection (a) of this section to be submitted, unless the person promptly notifies the insurer of the excessive charges.
(c) An offense under this section is a Class A misdemeanor.
Added by Acts 1989, 71st Leg., ch. 898, Sec. 1, eff. Sept. 1,
Sec. 35.02. INSURANCE FRAUD. (a) A person commits an offense if, with intent to defraud or deceive an insurer, the person, in support of a claim for payment under an insurance policy:
(1) prepares or causes to be prepared a statement that:
(A) the person knows contains false or misleading material information; and
(B) is presented to an insurer; or
(2) presents or causes to be presented to an insurer a statement that the person knows contains false or misleading material information.
(a-1) A person commits an offense if the person, with intent to defraud or deceive an insurer and in support of an application for an insurance policy:
(1) prepares or causes to be prepared a statement that:
(A) the person knows contains false or misleading material information; and
(B) is presented to an insurer; or
(2) presents or causes to be presented to an insurer a statement that the person knows contains false or misleading material information.
(b) A person commits an offense if, with intent to defraud or deceive an insurer, the person solicits, offers, pays, or receives a benefit in connection with the furnishing of goods or services for which a claim for payment is submitted under an insurance policy.
(c) An offense under Subsection (a) or (b) is:
(1) a Class C misdemeanor if the value of the claim is less than $50;
(2) a Class B misdemeanor if the value of the claim is $50 or more but less than $500;
(3) a Class A misdemeanor if the value of the claim is $500 or more but less than $1,500;
(4) a state jail felony if the value of the claim is $1,500 or more but less than $20,000;
(5) a felony of the third degree if the value of the claim is $20,000 or more but less than $100,000;
(6) a felony of the second degree if the value of the claim is $100,000 or more but less than $200,000; or
(7) a felony of the first degree if:
(A) the value of the claim is $200,000 or more
Amended by:
Acts 2005, 79th Leg., Ch. 1162, Sec. 4, eff. September 1, 2005.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas civil litigation attorneys in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
TO: ALL COMPANIES, CORPORATIONS, EXCHANGES, MUTUALS, RECIPROCALS, ASSOCIATIONS, LLOYDS, OR OTHER INSURERS WRITING PROPERTY AND CASUALTY INSURANCE IN THE STATE OF TEXAS AND TO THEIR REPRESENTATIVES AND AGENTS, AND TO ADJUSTERS, PUBLIC ADJUSTERS, ROOFING CONTRACTORS, AND THE PUBLIC GENERALLY
RE: HOUSE BILL 1183
The Texas Department of Insurance issues this bulletin to remind insurers, insurance adjusters, and public insurance adjusters that the 83rd Texas Legislature (2013), enacted House Bill 1183, effective September 1, 2013, which establishes prohibited conduct of insurance adjusters, public insurance adjusters, and roofing contractors.
HB 1183 does not change existing prohibitions in Texas Insurance Code, Chapters 4101 or 4102, but it adds §4101.251 and §4102.163.
Section 4101.251 prohibits licensed adjusters from adjusting a loss related to roofing damage on behalf of an insurer if the adjuster is a roofing contractor or otherwise provides roofing services or roofing products for compensation, or is a controlling person in a roofing-related business. The section also prohibits a roofing contractor from acting as an adjuster or advertising to adjust claims for any property for which the roofing contractor is providing or may provide roofing services, regardless of whether the contractor holds a license under this chapter.
Section 4102.163 prohibits a roofing contractor from acting as a public adjuster or advertising to adjust claims for any property for which the contractor is providing or may provide roofing services, regardless of whether the contractor holds a license under this chapter.
While not contained in HB 1183, public insurance adjusters are prohibited from participating directly or indirectly in the reconstruction, repair, or restoration of damaged property that is the subject of a claim adjusted by the license holder. Texas Insurance Code §4102.158.
The department will investigate written complaints of persons violating the Insurance Code and notes that violating Insurance Code Chapters 4101 and 4102 may result in criminal penalties and license denial, suspension, or revocation. In addition, violating Chapter 4102 may result in fines.
If you have any questions regarding this bulletin, please contact Jamie Walker by email atjamie.walker@tdi.texas.gov, or by telephone at 512-305-6797.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas civil litigation attorneys in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
Evanston Insurance Company v. Gene by Gene, Ltd., — F.Supp.3d —- (2016)
2016 WL 102294
United States District Court,
S.D. Texas, Houston Division.
Evanston Insurance Company, Plaintiff,
v.
Gene by Gene, Ltd., Defendant.
Civil Action No. H–14–1842
|
Signed January 6, 2016
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas civil litigation attorneys in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
Opinion issued February 9, 2016
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-14-00508-CV
———————————
FRANCISCO CHAMUL, Appellant
V.
AMERISURE MUTUAL INS. CO., Appellee
On Appeal from the 190th District Court
Harris County, Texas
Trial Court Case No. 2012-14219
O P I N I O N
Francisco Chamul suffered a serious work-related injury and filed a
worker’s compensation claim seeking lifetime-income benefits. His application
was denied. After completing the administrative review process, the trial court
granted summary judgment against him.
2
In two issues, he contends that the trial court erred by (1) applying an overly restrictive definition to an undefined statutory term—imbecility—in support of summary judgment for the insurer and (2) finding that his treating physician’s affidavit qualifies as a sham affidavit and therefore is incompetent summary judgment evidence.
We reverse and remand.
Background
A. Legal background concerning “imbecility” as statutory standard for benefits
The Labor Code provides for lifetime-income benefits for employees who suffer certain devastating injuries. TEX. LAB. CODE ANN. § 408.161(a)–(b) (West 2015). Among the list of qualifying injuries is “a physically traumatic injury to the brain resulting in incurable insanity or imbecility.” Id. § 408.161(a)(6). This basis for lifetime-income benefits dates back to 1917. See Act of Mar. 28, 1917, 35th Leg., R.S., ch. 103, § 1, Part I, sec. 11a, 1917 Tex. Gen. Laws 269, 275; see also Lumbermen’s Reciprocal Ass’n v. Gilmore, 258 S.W. 268, 269 (Tex. Civ. App.—Texarkana 1924) (quoting imbecility provision from workers’ compensation statute of 1917), aff’d, 292 S.W. 204 (Tex. 1927). Despite the long-standing use of “imbecility” as a standard, the Labor Code does not define the term, and its meaning has proven to be anything but clear.
3
Further complicating the matter is that the terminology used to address and differentiate between various levels of intellectual deficits is constantly evolving. See Caroline Everington, Challenges to Conveying Intellectual Disabilities to Judge and Jury, 23 WM. & MARY BILL RTS. J. 467, 484–85 (2014). Terms are coined and then fall in disfavor. “Feeble-minded” and “imbecile” were used in the early twentieth century. See Buck v. Bell, 274 U.S. 200, 47 S. Ct. 584 (1927) (using both terms interchangeably in much-criticized opinion while discussing woman subject to involuntary sterilization); Tomoe Kanaya et al., The Flynn Effect and U.S. Policies: The Impact of Rising IQ Scores on American Society Via Mental Retardation Diagnosis, 58 AM. PSYCHOLOGIST 778, 788 (2003) (noting that intellectual-capacity labels are “continually supplanted by newer ones over time. For example, terms such as imbecile and feeble-minded were considered scientific and acceptable in the first quarter of the 20th century but were replaced after time with successive euphemisms.” (emphasis omitted)). A more recent example of changing terminology is the shift from using the term “mentally retarded” to “intellectually disabled.” See Ex parte Cathey, 451 S.W.3d 1, 5 (Tex. Crim. App. 2014).
Whatever meaning the Legislature attached to the term “imbecility” when it included the standard in the lifetime-income-benefits provision in 1917, it is clear that the term has little medical significance today. The medical experts in this case
4
agree that the term “imbecility” is no longer part of the language of medicine for diagnosing patients or developing treatment plans to address their afflictions. Chamul’s treating physician stated that the term “imbecility” is “offensive” and not used by members of the medical profession to her knowledge. Amerisure’s selected neuropsychiatric expert included in his report the following statement: “Please note that use of imbecility or incurable insanity is pejorative. I only use it because it is administratively/statutorily required and does not reflect my personal or professional language use.”
The Legislature updates statutes to remove “demeaning” terms and phrases and replace them with more acceptable terms, but it has not yet chosen to retire “imbecility” as a standard for benefits. Cf. TEX. GOV’T CODE ANN. § 392.001 (West 2013) (stating that demeaning terms create invisible barriers to inclusion of individuals with disabilities); TEX. GOV’T CODE ANN. § 325.0123 (West 2013) (discussing statutory revisions to use phrase “intellectual disability” instead of “mental retardation”). We can infer nothing from this inaction because a “legislature legislates by legislating, not by doing nothing, not by keeping silent.” Sanchez v. Schindler, 651 S.W.2d 249, 252 (Tex. 1983) (quoting Wycko v. Gnodtke, 105 N.W.2d 118, 121–22 (Mich. 1960)). “[L]egislative silence . . . may reflect many things, including implied delegation to the courts or administrative agencies, lack of consensus, oversight, or mistake.” Brown v. De La Cruz, 156
5
S.W.3d 560, 566 (Tex. 2004). Here, we know only that the terminology has remained unchanged.
Charging the hearing officers and the courts with construing a statutorily undefined term that is now outdated and considered offensive presents challenges. Adding to the challenge is the dearth of case law attempting to define the term. Before turning to that body of law, we consider the evidence of Chamul’s neurocognitive injury.
B. Factual background concerning Chamul’s injury and his diagnoses
While working as a brick mason for Camarat Masonry, Francisco Chamul fell from a scaffold onto a concrete slab more than 10 feet below. He suffered a serious head injury. Specifically, he had multiple fractures of his skull, a left subdural hematoma with diffuse cerebral edema, and intercranial pressure that required bilateral decompression craniectomies. He also suffered spinal cord injuries, fractured ribs, and more. He was transported to Ben Taub Medical Center where he remained in a coma for 36 days.
Chamul was transferred to the Mentis Neuro-Rehabilitation Facility for rehabilitation. Approximately six months later, he underwent his first extensive neuropsychological evaluation performed by Dr. Francisco Perez. Dr. Perez diagnosed Chamul with neurocognitive problems, including significant memory
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deficiencies that negatively impacted his visual memory, ability to learn, and ability to retain new verbal information.
Chamul’s next evaluation was by Dr. Cindy B. Ivanhoe at The Institute for Rehabilitation and Research in Houston. Dr. Ivanhoe testified that Chamul suffers from seizures and cognitive problems that affect his memory, thought organization, and understanding interpersonal dynamics. Chamul is not capable of living independently, needs to be supervised, is unable to operate a motor vehicle, and is permanently unable to return to competitive employment as a result of his brain injury. She further stated: “It is my opinion that Francisco Chamul is permanently mentally incapacitated because of his work related injuries.”
Approximately two years after beginning treatment with Dr. Ivanhoe, Chamul was examined by Dr. Stanley Hite, a doctor appointed by the Division of Workers’ Compensation. According to Dr. Hite, Chamul functions at the level of an 11 or 12 year-old, is unable to care for himself, and will need a caretaker for the rest of his life. Dr. Hite opined that Chamul’s condition will not improve.
Chamul was also examined by Wallace Stanfill, a certified rehabilitation counselor. After assessing Chamul, Stanfill concluded that he ‘has experienced a total and permanent loss of the functioning of his brain from a vocational standpoint.” While agreeing that Chamul “is marginally functional in many basic areas,” Stanfill opined that he “is not considered to be cognitively able to engage in
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any degree of competitive work, even unskilled employment.” Instead, “[h]is current level of functioning would [be] at best more in keeping with sheltered employment,” which is consistent with Dr. Ivanhoe’s assessment.
Felix Chamul is Chamul’s father and primary caregiver. He stated in his affidavit that his son is unable to manage his medical and financial affairs and needs assistance with dressing and grooming. He believes that Chamul is unemployable.
Amerisure retained neuropsychiatrist Dr. Andrew Brylowski to examine Chamul. Dr. Brylowski concluded that, although Chamul had a significant, traumatic brain injury with diffuse brain swelling, he “did not sustain any type of irreversible brain injury which would rise to the level of rendering him permanently unemployable because of eliminating his ability to engage in a range of usual cognitive processes.” Dr. Brylowski diagnosed Chamul with “malingering,” concluding that he inaccurately reported information during the examination. Dr. Brylowski opined that “any cognitive, conative, neuroendocrine, sensory and motor function, or brainstem/cranial nerve function can be treated and managed to help [Chamul] reintegrate into the workforce.”
C. The definition of “imbecility” used in Chamul’s administrative and judicial proceedings thus far
At the contested-hearing level, the hearing officer noted that the Labor Code does not define “imbecility” and concluded that past administrative appeals panels
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and courts have adopted a definition of “imbecility” from a dictionary published in 1991; this definition “contemplates that the affected individual will not only require supervision in the performance of routine tasks, but will have a mental age1 of three to seven years.” WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY (1991) In support of that statement, the hearing officer cited two sources: Liberty Mutual Insurance Co. v. Camacho, 228 S.W.3d 453 (Tex. App.—Beaumont 2007, pet. denied) and Appeals Panel Decision No. 961340, 1996 WL 487735 (Aug. 21, 1996).
1 The Supreme Court discussed the concept of “mental age” in Penry v. Lynaugh, 492 U.S. 302, 339–40, 109 S. Ct. 2934, 2958 (1989), abrogated by Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242 (2002):
Mental age is “calculated as the chronological age of nonretarded children whose average IQ test performance is equivalent to that of the individual with mental retardation.” Such a rule should not be adopted today. . . . [T]he “mental age” concept, irrespective of its intuitive appeal, is problematic in several respects. As the AAMR [American Association for Mental Retardation—now American Association on Intellectual Developmental Disabilities] acknowledges, “[t]he equivalence between nonretarded children and retarded adults is, of course, imprecise.” The “mental age” concept may underestimate the life experiences of retarded adults, while it may overestimate the ability of retarded adults to use logic and foresight to solve problems. The mental age concept has other limitations as well. Beyond the chronological age of 15 or 16, the mean scores on most intelligence tests cease to increase significantly with age. As a result, “[t]he average mental age of the average 20 year old is not 20 but 15 years.”
Not surprisingly, courts have long been reluctant to rely on the concept of mental age as a basis for exculpating a defendant from criminal responsibility.
(Internal citations and parentheticals omitted.)
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The hearing officer considered the evidence—which included Dr. Hite’s opinion that, while Chamul is unable to care for himself, he functions at the level of an 11 or 12 year-old—and stated his determination as follows:
The evidence presented at the Contested Case Hearing reveals that although Claimant likely meets the initial portion of the definition [that “the affected individual will . . . require supervision in the performance of routine tasks”], Claimant has not been shown to exhibit the mental age range in question [“a mental age of three to seven years”].
Thus, the decision of the hearing officer was that Chamul was not entitled to lifetime-income benefits for his work-related injury. Chamul was informed that the Appeals Panel was allowing the hearing officer’s decision to become final. Chamul sought judicial review of the decision.
Both Chamul and the insurer, Amerisure Mutual Insurance Company, filed summary-judgment motions with the trial court. Amerisure highlighted the issue presented in the competing motions: “The crux of the cross motions for summary judgment in this case turn on the definition of ‘imbecility.’” Amerisure argued that “imbecility” should be interpreted to mean a “feebleminded person having a mental age of three to seven years . . . .” Chamul, on the other hand, argued for a more general definition: “an irreversible brain injury, which renders the employee permanently unemployable and so affects the non-vocational quality of his life by eliminating his ability to engage in a range of usual cognitive processes.”
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Amerisure also argued that the affidavit of Chamul’s treating physician, Dr. Ivanhoe, should be disregarded as incompetent summary-judgment evidence because it is a sham affidavit.
The trial court applied Amerisure’s “imbecility” definition. The court also found that Dr. Ivanhoe’s affidavit is a sham affidavit and, as a result, disregarded it. Based on the remaining evidence, including various physicians’ statements that Chamul had not been reduced to a mental age of three to seven years, but, instead, closer to a mental age of 11 years, the trial court granted Amerisure’s summary-judgment motion and denied Chamul’s. Thus, Chamul remained without lifetime-income benefits.
Chamul timely appealed.
Summary Judgment
Both parties moved for summary judgment on the issue whether Chamul’s traumatic brain injury resulted in “imbecility” to meet the requirement for lifetime-income benefits.
A. Standards of review
A party moving for Rule 166a(c) summary judgment must conclusively prove all of the elements of its cause of action as a matter of law. TEX. R. CIV. P. 166a(c); Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 566 (Tex. 2001); Rhone Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222–23 (Tex. 1999). A
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defendant moving for summary judgment on a cause of action asserted against it must negate as a matter of law at least one element of the plaintiff’s theory of recovery or plead and prove each element of an affirmative defense. Nelson v. Chaney, 193 S.W.3d 161, 165 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
“When both sides move for summary judgment and the trial court grants one motion and denies the other, the reviewing court should review both sides’ summary judgment evidence and determine all questions presented.” FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000); accord Gillebaard v. Bayview Acres Ass’n, 263 S.W.3d 342, 348 (Tex. App.—Houston [1st Dist.] 2007, pet. denied). The reviewing court should render the judgment that the trial court should have rendered. See Tex. Workers’ Comp. Comm’n v. Patient Advocates of Tex., 136 S.W.3d 643, 648 (Tex. 2004); Comm’rs Court of Titus Cty. v. Agan, 940 S.W.2d 77, 81 (Tex. 1997); Gillebaard, 263 S.W.3d at 347–48. The propriety of summary judgment is a question of law. We, therefore, review the trial court’s grant of one party’s motion and denial of the other’s using the de novo standard. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003).
We review issues of statutory construction de novo as well. Tex. Lottery Comm’n v. First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010). We rely on the plain meaning of the text chosen by the Legislature. Id. “We use
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definitions prescribed by the Legislature and any technical or particular meaning the words have acquired.” City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008). Otherwise, we construe the statute’s words according to their plain and common meaning unless a contrary intention is apparent from the context or such a construction leads to absurd results. Id. at 625–26; Fresh Coat, Inc. v. K–2, Inc., 318 S.W.3d 893, 901 (Tex. 2010) (“Presuming that lawmakers intended what they enacted, we begin with the statute’s text, relying whenever possible on the plain meaning of the words chosen.”); Fitzgerald v. Advanced Spine Fixation Sys., 996 S.W.2d 864, 866 (Tex. 1999) (explaining that “it is a fair assumption that the Legislature tries to say what it means . . . .”). The Texas Supreme Court has held that the Texas Workers’ Compensation Act should be liberally construed to confer benefits upon injured workers. Lujan v. Houston Gen. Ins. Co., 756 S.W.2d 295, 297 (Tex. 1988).
B. The source of the mental-age based definition of “imbecility” that was applied to Chamul’s claim
The mental-age based definition of imbecility that was found in the 1991 dictionary entry and later adopted by Chamul’s hearing officer and relied on by the trial court to deny his claim appears to slice out an age range (i.e., three to seven years), thereby indicating that higher and lower age ranges exist. There is a historical context to this stratification. See Michael Clemente, Note, A Reassessment of Common Law Protections for “Idiots,” 124 YALE L.J. 2746,
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2756–58, 2763–68 (2015). It can be traced to the now-repudiated eugenics movement of the late-nineteenth to mid-twentieth century. Id. at 2763–64; see Sarah Fender, BIOETHICS IN HISTORICAL PERSPECTIVE 11 (Palgrave MacMillan 2013).
Eugenics was a social movement that sought to control human heredity. See BIOETHICS IN HISTORICAL PERSPECTIVE at 11. Its adherents emphasized the genetic source of traits and believed that good traits could be accentuated in a population by good breeding and bad traits could be minimized by selective sterilization. Jennifer S. Geetter, Coding for Change: The Power of the Human Genome to Transform the American Health Insurance System, 28 AM. J. L. & MED. 1, 1–19 (2002) (discussing eugenics movement as precursor to scientific study of genetics). These ideas were eventually repudiated, but, before that would occur, many social and governmental programs were enacted based on these beliefs. See id. One was the government-mandated involuntary sterilization program that led to the infamous 1927 case of Buck v. Bell, 274 U.S. 200, 47 S. Ct. 584 (1927).2 There, the United States Supreme Court held that a “feeble-minded” woman, who was said to have been born to a “feeble-minded” mother and to have had a “feeble-minded”
2 See Fieger v. Thomas, 74 F.3d 740, 750 (6th Cir. 1996) (noting that Buck has been repudiated except for its discussion of selective enforcement).
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child out-of-wedlock,3 did not have constitutional protection against involuntary sterilization. 274 U.S. at 205–07, 47 S. Ct. at 584–85. In a harshly worded opinion, Justice Holmes wrote that “[t]hree generations of imbeciles is enough.” 274 U.S. at 207, 47 S. Ct. at 585.
While Justice Holmes and some others in that era used the terms “feeble-minded” and “imbecile” interchangeably,4 a prominent eugenicist, Henry Herbert Goddard, sought to differentiate between levels of deficits. He created a three-tier system for classifying “feeble-minded” individuals’ cognitive abilities. See A Reassessment of Common Law Protections for “Idiots,” 124 YALE L.J. at 2763 (citing Henry Herbert Goddard’s Report on Committee on Classification of Feeble-Minded, 15 J. PSYCHO-ASTHENICS 61–67 (1910)). Under Goddard’s system, “idiots” had an IQ of 25 or below with a calibrated mental age of up to two years; “imbeciles” had an IQ between 25 and 50 with a calibrated mental age of three to
3 Scholarly research later revealed that neither the plaintiff nor her daughter had low IQ. Instead, the plaintiff’s foster parents were intent to institutionalize her after their nephew raped her, which led to the birth of a daughter, who actually excelled in school until her young death. See Paul A. Lombardo, Three Generations, No Imbeciles: New Light on Buck v. Bell, 60 N.Y.U. L. REV. 30, 53–54, 61 (1985).
4 See James W. Ellis & Ruth A. Luckasson, Mentally Retarded Criminal Defendants, 53 GEO. WASH. L. REV. 414, 421 n.38 (1985) (stating that terms “‘idiots,’ ‘imbeciles,’ ‘morons,’ and ‘feebleminded,’ [were] all used to describe different degrees of mental retardation. The terminology was used without precise uniformity . . . . On occasion each term has been used as an umbrella term to include all levels of disability.”); see also A DICTIONARY OF MEDICAL SCIENCE 428 (Lea Brothers & Co., 23d ed. 1903) (defining “feeblemindedness” as “[w]eak mental condition[] in which are included dementia, idiocy, and imbecility.”).
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seven years; and “morons” had an IQ between 50 and 75 with a calibrated mental age of eight to 12 years of age. Id. at 2763 (again citing Journal of Psycho-Asthenics 1910 Report).
Some dictionaries published after this eugenics era incorporated the tier system into their definitions of these words. See, e.g., MCGRAW-HILL DICTIONARY OF SCIENTIFIC AND TECHNICAL TERMS 1052 (6th ed., 2003) (defining “imbecile” as “person of middle-grade mental deficiency; the individual’s mental age is between 3 and 7 years”).
Over time, the eugenics movement lost support and was repudiated. BIOETHICS IN HISTORICAL PERSPECTIVE at 11; Lisa Powell, Note, Eugenics and Equality: Does the Constitution Allow Policies Designed to Discourage Reproduction Among Disfavored Groups?, 20 YALE L. & POL’Y REV. 481, 482–89 (2002); see Eric M. Jaegers, Note, Modern Judicial Treatment of Procreative Rights of Developmentally Disabled Persons: Equal Rights to Procreation and Sterilization, 31 U. LOUISVILLE J. FAM. L. 947, 956 (1992) (“Beginning in the 1930s and 1940s, a variety of factors initiated a gradual decline in support for eugenic theories. First, as scientific understanding of mental retardation became more sophisticated, researchers were able to disprove or discredit many premises upon which eugenics was based.”).
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Nonetheless, references to Goddard’s tier system continue to be included in definitions for these terms in dictionaries published decades later. See, e.g., THE AMERICAN HERITAGE COLLEGE DICTIONARY 692 (Houghton Mifflin Co., 4th ed. 2007) (defining “imbecile” as “person of moderate to severe mental retardation having a mental age from three to seven years”); WEBSTER’S NEW WORLD COLLEGE DICTIONARY 723 (Houghton Mifflin Harcourt Publishing Co., 5th ed. 2014) (defining “idiot” as “disabled person mentally equal or inferior to a child two years old”); Id. at 726 (defining “imbecile” as “disabled person mentally equal to a child between three and eight years old”); id. at 952 (defining “moron” as “disabled person mentally equal to a child between eight and twelve years old: an obsolescent term”); but see id. at 726 (also defining “imbecile” as “very foolish or stupid person”) and THE OXFORD ENGLISH DICTIONARY 670 (Clarendon Press, 2d ed. 1989) (defining “imbecile” as follows: “In general sense: Weak, feeble; esp. feeble of body, physically weak or impotent.”).
Thus, dictionary definitions that describe an “imbecile” as having a mental age between three and seven—including the 1991 dictionary definition—are referring to this three-tier classification system conceptualized by Goddard.
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C. How the 1991 dictionary definition became incorporated into administrative and judicial analysis of qualifications for lifetime-income benefits
The mental-age based “imbecility” definition was first used in the context of a workers’ compensation claim in 1996. See Appeal No. 961340, 1996 WL 487735 (Tex. Work. Comp. Comm’n Aug. 21, 1996). There, the administrative appeals panel noted the lack of a statutory definition of “imbecility” and looked to Webster’s Ninth New Collegiate Dictionary, dated 1991, for insight. Cf. Jaster v. Comet II Constr., Inc., 438 S.W.3d 556, 563 (Tex. 2014) (stating that court will look to dictionaries and other sources to determine common, ordinary meaning of statutory terms left undefined). That 1991 dictionary defined “imbecility” as the quality or state of being an imbecile; it defined “imbecile” as “a mentally deficient person, especially a feebleminded person having a mental age of three to seven years and requiring supervision in the performance of routine daily tasks or caring for himself.” WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY (1991). That appeals panel decision and its age-specific definition was later quoted in another appeals decision. See Appeal No. 020660, 2002 WL 971165, at *1 (Tex. Work. Comp. Comm’n Apr. 19, 2002).
Meanwhile, some of the other states with “imbecility” as the standard in their lifetime-income-benefits statutes were adopting much broader definitions. In Barnett v. Bromwell, Inc., 366 S.E.2d 271 (Va. Ct. App. 1988) (en banc), that court
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noted that “imbecility” was an “obsolete” medical term and adopted a “functional,” “non-technical” approach to defining it. Id. at 272–74. The court defined the term to mean “an irreversible brain injury which renders the employee permanently unemployable and so affects the non-vocational quality of his life by eliminating his ability to engage in a range of usual cognitive processes . . . .” Id. at 274.
Likewise, Michigan adopted a general definition in Redfern v. Sparks-Withington Co., 268 N.W.2d 28, 37 (Mich. 1978), holding as follows:
We conclude that . . . a worker’s intellectual impairment is “imbecility” if he suffers severe cognitive dysfunction . . . . [C]ognitive dysfunction is “severe” if it affects the quality of the worker’s personal, non-vocational life in significant activity comparably to the loss of two members or sight of both eyes [another basis for qualifying for lifetime income benefits in some workers’ compensation statutes], and is incurable if it is unlikely that normal functioning can be restored.
Id. at 37.
The Texarkana Court of Appeals compared the Virginia court’s definition to the 1991 dictionary definition in National Union Fire Insurance Co. v. Burnett, 968 S.W.2d 950 (Tex. App.—Texarkana 1998, no pet.). After discussing these two alternative approaches to defining ‘imbecility,” the court determined that neither was helpful to answer the issue before it: whether the undefined statutory term “incurable insanity” included a diagnosis of depression without psychosis. Id. at 956.
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The 1991 dictionary definition was referenced again in 2007 by the Beaumont Court of Appeals. See Liberty Mut. Ins. Co. v. Camacho, 228 S.W.3d 453 (Tex. App.—Beaumont 2007, pet. denied). Amerisure relies heavily on Camacho, asserting that it was “a similar case concerning entitlement to lifetime income benefits due to imbecility” and that the definition of imbecility that was used in that case “is the same definition” applied to deny Chamul’s benefits.
In Camacho, the Beaumont Court of Appeals noted that the jury had been instructed that an “imbecile” is “a mentally deficient person, especially a feebleminded person having a mental age of three to seven years and requiring supervision in the performance of routine daily tasks or caring for himself.” 228 S.W.3d at 461. But the Camacho court was not asked to determine whether the age-specific definition was legally correct or the trial court erred by supplying that definition to the jury. See id. Instead, the issue was whether a different jury instruction was erroneous: that the jury was to “give no special weight” to the decision of the Texas Workers’ Compensation Commission in its deliberations. Id. at 459.
Just three years ago, these competing definitions were compared again by another workers’ compensation appeals panel. See Appeal No. 121131-s, 2012 WL 12359072 (Tex. Work. Comp. Comm’n Aug. 27, 2012). That panel discussed that the hearing officer in the underlying contested hearing had noted the 1991
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dictionary definition of “imbecility” and compared it to the more general definition found in the Virginia Barnett opinion. See id. at *3. Without endorsing either approach over the other, the panel concluded that the hearing officer did not err by determining that the claimant was entitled to lifetime-income benefits. See id.
Based on Camacho and these earlier appeals-panel decisions, Amerisure argues that “imbecility,” in the context of a lifetime-income-benefits claim, means “a mentally deficient person, especially a feebleminded person having a mental age of three to seven years and requiring supervision in the performance of routine daily tasks or caring for himself.” Amerisure reads this definition narrowly to require that the claimant establish a mental age between three and seven years.
D. Overly narrow, age-specific definition does not control
Amerisure obtained summary judgment that Chamul did not meet the definition of “imbecility” in the trial court. The trial court’s holding was explicitly based on the narrow definition urged by Amerisure and adopted by the hearing officer. We conclude that the trial court erred by granting summary judgment to Amerisure. In doing so, we reject the narrow definition that would place a burden on claimants to establish a mental age of between three and seven years for three reasons. First, the 1991 dictionary from which the narrow definition was obtained was not an appropriate source to discern the meaning of a term incorporated into a statute more than 70 years earlier. Second, the mandate that the workers’
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compensation statute be liberally construed to confer benefits upon injured workers suggests that Section 408.161 of the Labor Code should not be read to require proof of a mid-range mental age—a result achieved only through the most narrow reading of the statute and the definition possible. See Lujan, 756 S.W.2d at 297. Third, applying the 1991 dictionary definition would lead to absurd results and, therefore, must be rejected.
1. Consulting a dictionary to understand the common meaning of a statutory term
The term “imbecility” has been in the Labor Code for almost a century, always without an assigned definition. See Lumbermen’s Reciprocal Ass’n, 258 S.W. at 269. It is appropriate to reference a dictionary to discern the common, ordinary meaning of a statutory term that has been left undefined. See Jaster, 438 S.W.3d at 563. However, not all dictionaries are equal.
“In the absence of a specific amendment, a statute should be given the meaning which it had when enacted.” Taylor v. Firemen’s & Policemen’s Civil Serv. Comm’n of City of Lubbock, 616 S.W.2d 187, 189 (Tex. 1981) (noting that statute in question was adopted in 1947 and, therefore, looking to dictionary definition at that time); cf. Porter v. State, 996 S.W.2d 317, 320 (Tex. App.—Austin 1999), supplemented, 65 S.W.3d 72 (Tex. App.—Austin 1999, no pet.) (examining “the meaning the statute had when it was enacted”). This is because a dictionary published close in time to the enactment of the legislation is a superior
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source for discerning the common, ordinary understanding of the term at the time it was incorporated. See ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXT 419 (Thomson/West, 1st ed. 2012). A dictionary published 70 years later is not as elucidating. Accordingly, we must consider other dictionaries published closer in time to the enactment of this legislation.
Contemporaneous dictionaries included more generalized definitions and did not limit “imbecility” to a mid-mental-age range. The 1910 edition of Black’s Law Dictionary provides this general definition of “imbecility”:
A more or less advanced decay and feebleness of the intellectual faculties; that weakness of mind which, without depriving the person entirely of the use of his reason, leaves only the faculty of conceiving the most common and ordinary ideas and such as relate almost always to physical wants and habits . . . the test of legal capacity in this condition, is the stage to which the weakness of mind has advanced, as measured by the degree of reason, judgment, and memory remaining.
BLACK’S LAW DICTIONARY 632 (2nd ed. 1910). This definition remained in effect for more than 40 years. See BLACK’S LAW DICTIONARY (4th ed. 1951). Other contemporaneous dictionaries defined “imbecility” in similar, general terms:
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A DICTIONARY OF MEDICAL SCIENCE (1903)
Weakness of intellect; nearly allied to idiocy
BOUVIER’S LAW DICTIONARY 1492 (West Publishing Co. 1914)
A form of mental disease consisting in mental deficiency, either congenital or resulting from an obstacle to the development of the faculties supervening in infancy. Idiocy.
2 BENJAMIN W. POPE, LEGAL DEFINITION 707 (1919)
destitute of strength, either of body or of mind,—weak, feeble, impotent, decrepit
WEBSTER’S COLLEGIATE DICTIONARY (G. & C. Merriam, 3d ed. 1920)
weakness, esp. of mind; . . . foolishness; absurdity; fatuity
JAMES A. BALLENTINE, A LAW DICTIONARY 218 (1923)
feebleness of mind
Chamul refers us to an even more recent definition of “imbecility.” See BLACK’S LAW DICTIONARY (10th ed. 2014) (defining “imbecile” as “person afflicted with severe mental retardation”). But, like the 1991 definition on which Amerisure relies, this definition fails to elucidate the meaning of the term when it was included in the workers’ compensation statute.
Because we are to consider the definition of the term when it was included in the challenged statute, we rely more on the general definitions quoted above, which date from 1903 to 1923, than on the age-specific definition on which Amerisure relies from 1991.
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2. Liberal construction suggests a broader definition
“The primary purpose of the Texas Workers’ Compensation Act is to benefit and protect injured employees.” Barchus v. State Farm Fire & Cas. Co., 167 S.W.3d 575, 578 (Tex. App.—Houston [14th Dist.] 2005, pet. denied) (analyzing predecessor statute, rejecting argument that “injury to the skull” required “fracture” of skull, and concluding that liberal construction of statute prohibits reading into statute requirement that skull be fractured). Thus, when a fair reading permits it, the Act is liberally construed to confer benefits upon injured workers. See Lujan, 756 S.W.2d at 297.
Contrary to this requirement, Amerisure is arguing for the most restrictive reading possible of the definition it proposes. The 1991 definition is “a mentally deficient person, especially a feebleminded person having a mental age of three to seven years . . .” WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY (1991) (emphasis added). The definition does not limit the term to only those with a mental age of three to seven; it says, instead, especially those of that category, suggesting that others also would fit within the description.
While we have not found a case directly on point, in our view, the term “especially” is analogous to “including” and signals that the statutory provision is broader in scope than the particular example that follows the term of enlargement. See In re E.C.R., 402 S.W.3d 239, 246 n.6 (Tex. 2013) (noting that terms of
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enlargement within statutory definitions indicate that lists are nonexclusive; specifically analyzing provisions using term “including”); Tex. W. Oaks Hosp. v. Williams, 371 S.W.3d 171, 179 (Tex. 2012) (holding that Legislature’s use of term “including” meant that statutory definition was nonexclusive). Attaching a narrow definition to limit a benefit without statutory text to support that interpretation violates the rule of liberal construction. See Barchus, 167 S.W.3d at 580. Therefore, even if we were to conclude that the 1991 definition accurately states the meaning of “imbecility” in the context of a lifetime-income-benefit award, the definition, itself, leaves open the possibility that someone with a mental age higher than seven years of age might qualify.
3. Applying the 1991 dictionary definition would lead to absurd results
If we were to accept Amerisure’s definition and hold that “imbecility” refers to individuals with a mental age between three and seven, this would exclude from the statute’s application the two other tiers of the three-tier classification system: “idiots” and “morons.” Doing so would lead to the absurd result that lifetime-income benefits would be available to an employee who suffered a traumatic brain injury serious enough to leave her at a functional age of three to seven years but denied to a worker more seriously injured and left at a functional age of below three years of age. Because such an absurd result could not have been intended by the Legislature, we must reject it. See City of Rockwall v. Hughes, 246 S.W.3d 621,
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625–26 (Tex. 2008) (stating that statutory terms are given their plain and common meaning unless such a construction leads to absurd results).
The Virginia Court of Appeals also noted the absurdity of this result in its en banc decision in Barnett, while construing “imbecility” in that state’s workers’ compensation statute:
To interpret the term “imbecility” to mean only those employees whose I.Q.s fall precisely within the range of 20 to 49 would lead to the absurd result that an employee with an I.Q. of less than 20 would not fall within the definition of the term. We do not find such a restrictive meaning necessarily inherent in the term, nor do we attribute such an unreasonable result to an intent by the legislature.
Barnett, 366 S.E.2d at 274; see Burnett, 968 S.W.2d at 955 (discussing Barnett).
We agree that a definition that denies lifetime-income benefits to the most severely injured worker but permits them for those with mid-level deficits does not comport with legislative intent. To the extent past appeals panels have relied on this narrow 3-to-7-years definition, we are not bound by those interpretations given the absurd results that would follow. See Barchus, 167 S.W.3d at 578 (stating that, while construction of statute by administration charged with its enforcement is entitled to thoughtful consideration, it is not binding on courts and no presumption of validity attaches to it); see also Fulton v. Associated Indem. Corp., 46 S.W.3d 364, 370 (Tex. App.—Austin 2001, pet. denied) (“We liberally construe workers’ compensation legislation to carry out its evident purpose of compensating injured workers and their dependents. An agency may not supply by implication
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restrictions on an employee’s rights that are not found in the plain language of the Act.”).
We conclude that the 1991 definition must be rejected because it has not been shown to mirror the understanding of the term when it was incorporated into the legislation, is overly narrow, and would lead to absurd results.
E. The trial court erred by granting summary judgment based on the narrow, age-specific definition
The hearing officer stated in the decision denying lifetime-income benefits that Chamul “likely meets” the definition of imbecility except for the “mental age of three to seven years” requirement. The trial court expressly stated that it applied a narrow “imbecility” definition, which required a mental age of three to seven years, in its determination of the summary-judgment motions. We have rejected that narrow definition.
The record reveals that there was a great deal of evidence presented to the hearing officer and attached to the summary-judgment motions concerning the severity of Chamul’s head injury and resulting impairment. While his treating physician was hesitant to describe him as having a functional age of three to seven years old,5 she did describe in detail how his injury has negatively impacted his
5 In Chamul’s second issue, he contends that the trial court erred by finding that Dr. Ivanhoe’s affidavit is a sham affidavit. Amerisure had argued that Dr. Ivanhoe’s affidavit “appear[ed] to be a sham affidavit created exclusively for the purpose of attempting to create a fact issue where one does not exist.” To the extent any
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ability to care for himself, perform work and non-work related tasks, and communicate.
The record also contains a report from Dr. Hite, an affidavit from rehabilitation expert Wallace Stanfill, and an affidavit from Chamul’s father and caretaker, Felix Chamul. In Dr. Hite’s report, he explained that Chamul’s condition will not improve and that he will need a caretaker for the rest of his life. Likewise, Stanfill explained in his affidavit that “while Mr. Chamul is marginally functional in many basic areas, he is not considered to be cognitively able to engage in any degree of competitive work, even unskilled employment. His current level of functioning would [be] at best more in keeping sheltered employment.” Finally, Felix Chamul, the father and caretaker of Francisco Chamul, stated in his affidavit that Chamul is unable to manage his medical and financial affairs and is unemployable.
There is, however, contrary evidence in the record. Dr. Brylowski, the neuropsychiatrist retained by Amerisure, testified that Chamul “did not sustain any type of irreversible brain injury which would rise to the level of rendering him
conflict between her affidavit and testimony leads to the conclusion that the affidavit qualifies as a sham affidavit, that conclusion would be limited to that part of the affidavit that conflicts: Dr. Ivanhoe’s statement that Chamul’s cognitive deficits “results in him having the mental capacity and behavior of a three to seven year old child.” The remainder of the affidavit remains relevant and admissible. See Farroux v. Denny’s Rests., Inc., 962 S.W.2d 108, 111 (Tex. App.—Houston [1st Dist.] 1997, no pet.) (adopting “sham affidavit” doctrine and analyzing whether single paragraph in affidavit presented fact issue).
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permanently unemployable because of eliminating his ability to engage in a range of usual cognitive processes.” He further stated that any cognitive problems could be treated and managed to help Chamul reintegrate into the workplace.
Based on the competing summary-judgment evidence, we conclude that a fact issue exists as to whether the deficiencies caused by the traumatic brain injury Chamul suffered in the course of his employment meet the requirements of “imbecility” under the statute. Because this is a material fact issue, summary judgment for Amerisure was erroneous.
We sustain Chamul’s first issue.
Conclusion
When faced with competing summary judgments, the general rule is that an appellate court should determine all questions presented and render the judgment that the trial court should have rendered. Patient Advocates of Tex., 136 S.W.3d at 648. Here, though, a fact issue exists that precludes summary judgment for either party. See Coker v. Coker, 650 S.W.2d 391, 394–95 (Tex. 1983). Accordingly, the trial court’s order granting Amerisure’s motion for summary judgment is reversed, and the cause is remanded for further proceedings consistent with this opinion.
Harvey Brown
Justice
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Panel consists of Justices Jennings, Higley, and Brown.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas civil litigation attorneys in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
OSHA fines humanitarian relief company in Lubbock after amputation
Breedlove Foods cited for 12 serious safety violations after feed auger debilitates worker
Employer name: Breedlove Foods Inc.
Location: 1818 N. Martin Luther King Blvd., Lubbock, Texas
Date Citation Issued: April 12, 2016
Investigation findings: The U.S. Department of Labor’s Occupational Safety and Health Administration Lubbock Area Office began the inspection Oct.16, 2015, after a feed auger amputated an employee’s hand as the worker performed cleaning work in and around the operating machine. Investigators found that the employer did not provide a safe working environment for its employees. The agency cited Breedlove for 12 serious violations that included:
Not having an emergency stop on equipment.
Allowing wet floors to create slip hazards.
Lacking a lockout/tagout program or procedures to power down machines before cleaning or maintenance.
Background: Breedlove is a commercial-sized non-profit food processor that works to feed hungry people in the U.S. and more than 65 countries. It serves educational and medical institutions, nursing homes, disaster relief operations and impoverished populations abroad.
Quote: “Breedlove Foods’ focus on humanitarian efforts is commendable. The company, however, must also focus on the safety and health of its employees,” said Elizabeth Linda Routh, OSHA’s area director in Lubbock. “We identified a dozen serious safety violations in our inspection, some of which led to a debilitating injury to an employee. This employer needs to act immediately to address the numerous machine guarding and electrical hazards to protect its workers before another serious injury or worse occurs.”
Information: Breedlove Foods, an international commercial nonprofit food processor, employs approximately 57 workers at its Lubbock facility. The company has 15 business days from receipt of its citations to comply, request an informal conference with OSHA’s area director, or contest the citations and penalties before the independent Occupational Safety and Health Review Commission.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas civil litigation attorneys in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
Call center provider to pay $150K in back wages for misclassifying hundreds of employees as independent contractors – denying minimum wage, overtime
Firm now classifies all call-center agents as employees
Employer: ViaSource Solutions Inc., formerly INW Contact LLC, a call-center provider to businesses that market products on television infomercials
Location: 223 East Thousand Oaks Blvd., Suite 222, Thousand Oaks, California
Investigation findings: An investigation by the U.S. Department of Labor’s Wage and Hour Division found ViaSource Solutions misclassified hundreds of call-center agents as independent contractors rather than employees, and subsequently denied them minimum wage and overtime for hours they worked, in violation of the Fair Labor Standards Act. The firm also failed to pay employees for time spent in training, creating additional violations of the FLSA.
Resolution: ViaSource has reclassified all call-center agents as employees and will pay $101,491 in back wages for minimum-wage violations to 435 employees plus $48,893 for unpaid overtime due to 165 employees.
Quote: “The resolution of this investigation of ViaSource Solutions sends a clear message to employers who try to reduce overhead costs at the expense of their workers,” said Kimchi Bui, director of the Wage and Hour Division in Los Angeles. “Whether a worker is an employee or an independent contractor under the FLSA is a legal question, determined by the actual employment relationship – not by any title, or any agreement between an employer and employee. We take worker misclassification very seriously, and will hold employers accountable to classify workers properly and to provide them with all the benefits entitled by law.”
Information: Misclassifying employees as independent contractors or some other nonemployee status often denies them minimum wage, overtime, workers’ compensation, unemployment insurance and other workplace protections. Employers often intentionally misclassify workers to reduce labor costs and avoid employment taxes. For more information about federal wage laws administered by the Wage and Hour Division, or to file a complaint, call the agency’s toll-free helpline at 866-4US-WAGE (487-9243). All services are free and confidential. Information also is available at http://www.dol.gov/whd/.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas civil litigation attorneys in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
OSHA levies $80K in fines for Quick Roofing for repeatedly exposing Conroe, Texas, workers to falls, ladder hazards, eye injuries | United States Department of Labor
OSHA levies $80K in fines for Quick Roofing for repeatedly exposing Conroe, Texas, workers to falls, ladder hazards, eye injuries
Employer has been cited six times in three years for same or similar violations
Employer name: Quick Roofing LLC
Inspection Site: 628 Maple Point Drive, Conroe, Texas
Citations issued: April 14, 2016
Investigation findings: On Nov. 23, 2015, after witnessing three roofers at work at a site in Conroe not using fall protection systems, U.S. Department of Labor Occupational Safety and Health Administration inspectors began an investigation of their employer, Quick Roofing LLC. The inspectors found one serious and four repeat violations dealing with fall, ladder, and eye hazards. The Texas roofing company has an extensive history with OSHA for repeatedly exposing workers to fall and ladder hazards. The agency previously cited Quick Roofing for the same or similar violations in:
Dallas in December 2015
San Antonio in October 2015
Austin in September 2015
Fort Worth in July 2014 and February 2013
Proposed Penalties: $80,280
Quote: “Falls from roofs and ladders can debilitate or kill workers,” said Joann Figueroa, OSHA’s area director in the Houston North office. “Quick Roofing’s continued history of ignoring federal safety standards must end. OSHA will not tolerate employers that repeatedly ignore commonsense safety requirements.”
Background: In 2014, more than 800 workers died after falling. From May 2-6, 2016, construction employers and employees across the country will stop work for a few hours to learn more about how to recognize and prevent fall hazards. The National Safety Stand Down to Prevent Falls in Construction web site has information, materials and programs designed to help save lives.
Quick Roofing has 120 workers at its headquarters in Kennedale and has facilities in Austin, San Antonio, and Katy. The company has 15 business days from receipt of its citations to comply, request an informal conference with OSHA’s area director, or contest the citations and penalties before the independent Occupational Safety and Health Review Commission.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas civil litigation attorneys in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
Many companies offer leave benefits that allow employees to take time off from work for various reasons. Leave benefits whether paid, unpaid or partially paid are generally an agreement between the employer and employee, or employees representative (such as a union).
Family and Medical Leave Act The Family and Medical Leave Act provides certain employees with up to 12 weeks of unpaid, job-protected leave per year. It also requires that their group health benefits be maintained during the leave.
Fair Labor Standards Act While certain types of leave are required by law, other types are voluntary incentives provided by employers. There is a common misconception that Department of Labor regulates leave benefits through the Fair Labor Standards Act. But, the FLSA only covers certain types of leave.
In fact, there are a number of employment practices which FLSA does not regulate. For example, it does not require:
Vacation, holiday, severance, or sick pay
Meal or rest periods, holidays off, or vacations
Premium pay for weekend or holiday work
Pay raises or fringe benefits
Discharge notice, reason for discharge, or immediate payment of final wages to terminated employees.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas civil litigation attorneys in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
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