Affirmed and Majority Opinion and Dissenting Opinion filed March 21, 2019.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-17-00520-CV

                      FORT BEND COUNTY, Appellant
                                       V.
                  MELISSA ANN NORSWORTHY, Appellee

                   On Appeal from the 268th District Court
                          Fort Bend County, Texas
                   Trial Court Cause No. 14-DCV-213052B

                     MAJORITY OPINION


      This is a worker’s compensation subrogation case in which appellant Fort
Bend County (“FBC”), a self-insured governmental entity, appeals the interlocutory
judgment and order of severance in favor of appellee Melissa Norsworthy
(“Melissa”). We affirm.
                                    I.     Background

       On December 27, 2010, while working as a Fort Bend County Deputy Sheriff,
John Norsworthy swerved to avoid road debris that had fallen off a flatbed delivery
truck owned and operated by SBS/Bison Building Materials, LLC and driven by
Morris Crosby. John suffered what would be fatal injuries. FBC initiated worker’s
compensation benefits, paying one week of temporary income benefits of $689.47,
medical benefits of $215,011.87, and after his death on January 4, 2011, FBC began
paying the $766.00 weekly death benefit to the surviving spouse, Melissa,
individually and as guardian of her minor son Jacob and minor daughter Katlyn,
ages 16 and 13, respectively, at the time. Because Norsworthy was a first responder,
his spouse, Melissa, will receive a worker’s compensation benefit for her life.

       In 2014, in trial court cause number 14-DCV-213052, Jacob, John’s son, now
an adult, sued Bison and Crosby (“Bison”) for the wrongful death of John. In
Jacob’s second amended petition, he purported to bring his wrongful death claim on
behalf of himself and all beneficiaries who have a wrongful death and survival cause
of action.

       On December 3, 2015, Jacob went to mediation with Bison. At the time of
the mediation, Melissa, Jacob and Katlyn were individually receiving their statutory
proportionate share of the worker’s compensation death benefits.1 Katlyn,
represented by attorneys, attended the mediation and presented her claim as a
potential intervenor in the lawsuit. Melissa, represented by counsel, also appeared
at mediation representing a potential claim from the estate of John. At mediation,
Jacob and Katlyn agreed to settle with Bison for $1.7 million dollars ($849,000.00
each) and agreed to allocate $2,000.00 to John’s estate. Melissa, individually, did

       1
         Melissa receives one-half of the benefit and the two adult children, Jacob and Katlyn,
receive one-fourth of the benefit, each.

                                              2
not participate in the mediated settlement agreement, did not sign the mediated
settlement agreement, and did not share in her adult children’s third-party recovery.
The settlement exceeded FBC’s statutory lien for past benefits paid to Jacob, Katlyn,
and Melissa.

      On January 26, 2016, FBC filed a petition in intervention in the Bison lawsuit
seeking subrogation recovery for the worker’s compensation benefits it paid to
Jacob, Katlyn, and Melissa. Thereafter, FBC and Jacob entered into a Rule 11
Agreement, settling the part of FBC’s lien applicable to Jacob’s half of the
collective third-party recovery from Bison. See Tex. R. Civ. P. 11.

      In June 2016, FBC filed its motion for summary judgment against Katlyn and
Melissa seeking to recover the remaining half of its statutory worker’s compensation
lien on the collective third-party recovery. FBC asserted it was entitled to summary
judgment because it had timely intervened prior to final judgment in the third-party
Bison suit asserting its subrogation rights, the two-year statute of limitations did not
apply to its right to reimbursement from the settlement made by the legal
beneficiaries, and Katlyn’s recovery was for damages from a third-party tortfeasor
liable for the compensable death of John, regardless of how the legal beneficiaries
characterized it.2

      Melissa and Katlyn contested FBC’s subrogation rights. They argued in their
traditional motion for summary judgment that the statute of limitations bars FBC’s
subrogation claim. Next, Melissa asserted that FBC cannot establish the essential
elements of its conversion claim and cannot recover for medical and temporary
income benefits because she did not make any recovery from third-party, Bison.
Additionally, she argued Jacob settled with FBC for an amount that exceeds the
worker’s compensation death benefits paid to Jacob and Katlyn; therefore, the one

      2
          Katlyn claimed her recovery was for a bystander claim.

                                                3
satisfaction rule prevents FBC’s further recovery.

       On February 10, 2017, FBC’s total worker’s compensation lien was
$442,959.32.      The trial court ordered disbursement of Jacob’s $849,000.00 3
recovery on deposit with the registry of the court in accordance to the Rule 11
Agreement between Jacob and FBC. The disbursement gave FBC a $221,219.20
recovery from Jacob’s proportionate shares of the settlement proceeds, reducing
FBC’s outstanding worker’s compensation lien to $221,740.12. After reduction of
Jacob’s proportionate share of attorney’s fees and expenses, FBC made a net
recovery of $145,057.58. 4 All causes of action involving Jacob were resolved and
severed.

       On April 21, 2017, in an order styled “Defendant in Intervention Melissa
Norworthy’s Interlocutory Judgment and Order of Severance,” the trial court
granted in part Melissa and Katlyn’s summary judgment motion. The trial court
rendered summary judgment as to Melissa only and dismissed all claims against
Melissa in the subrogation case on the basis that she settled solely in her capacity as
independent administratrix of the estate and received no settlement funds
individually. The April 21, 2017 order also severed all claims against Melissa by
FBC so that the interlocutory judgment became final on those claims. The order
severed all claims into cause number 14-DCV213052-B (the “B” case). The trial
court ordered FBC “to continue to pay worker’s compensation benefits to Melissa
Norsworthy as long as she remains eligible under the statute.”



       3
          49.9412% represents Jacob’s $849,000 proportionate share of the total $1.7 million third
party settlement.
       4
          FBC asserted that the net amount recovered by Jacob and Katlyn in excess of FBC’s lien
is the future credit as defined by the Act (also known as the “holiday”). See Tex. Lab. Code §
417.002(b). At this time, only Jacob’s $411,646.64 net recovery of the “holiday” has been finally
determined and distributed.

                                                4
      On May 19, 2017, FBC filed in the main trial cause number a document
entitled, “Intervenor’s Motion for New Trial as to Defendant in Intervention Melissa
Norsworthy,” complaining that the trial court’s April 21, 2017 order compromised
FBC’s subrogation interest by ordering FBC to continue paying Melissa worker’s
compensation benefits and denying FBC its right to apply its future credit/advance
to those future benefits.    FBC contends the trial court’s ruling results in the
circumvention of the Act.

      Realizing its motion for new trial should have been filed in the “B” case, FBC
filed a motion to consider its motion for new trial timely filed, maintaining that the
inadvertent filing of the motion for new trial in the main cause number was a
clerical error. During a hearing, the trial court granted FBC’s motion to consider the
motion for new trial timely filed in the severed “B” case, and signed an order to that
effect in open court on July 28, 2017. On August 3, 2017, the trial court amended
its order without notice to FBC and handwrote that the motion for new trial was
timely filed as to the main cause number.

      On July 3, 2017, FBC filed a notice of appeal from the trial court’s order
signed April 21, 2017. The notice of appeal contained both the main cause number
and the “B” case. The appeal was assigned to this court under our appellate case
number 14-17-00520-CV. On July 28, 2017, FBC filed a second notice of appeal
from the April 21, 2017 order. The notice also contained both trial cause numbers
and was assigned to this court under our appellate case number 14-17-00633-CV.
The April 21, 2017, order is the only contested order in both appeals.

      Subsequently, in this court, FBC filed an opposed motion to consolidate the
related appeals. Melissa argued that both of FBC’s appeals should be dismissed
because the judgment was not final in the main cause number and the notice of
appeal was late in the “B” cause number. By per curiam opinion and order dated

                                            5
February 15, 2018, we granted appellant FBC’s motion to consolidate, in part, and
transferred the record filed in 14-17-0633-CV into case number 14-17-00520-CV.
Fort Bend Cty. v. Norsworthy, No. 14–17–00633–CV, 2018 WL 894050, at *3 (Tex.
App.—Houston [14th Dist.] Feb. 15, 2018, no pet.) (per curiam). We dismissed the
appeal in case number 14-17-00633-CV.5 Id.

                                       II.    Analysis

       FBC raises three issues on appeal: (1) whether the trial court erred in
dismissing Melissa from the suit and ordering FBC to continue to pay her weekly
death benefits; (2) whether the trial court erred in granting Melissa’s motion for
summary judgment on FBC’s right to an advance against future benefits owed to
Melissa; and (3) whether FBC’s motion for new trial was timely filed for purposes
of appeal.6

       Although Melissa labels an alternate reason to affirm the trial court’s
summary judgment as a “cross point” in her appellee’s brief, it is not a cross point
because it does not seek to alter the trial court’s judgment. Tex. R. App. P. 25.1(c).

A.     Standard of review

       The summary judgment standards of review are well-known. We review de
novo the trial court's order granting summary judgment. Ferguson v. Bldg. Materials
Corp, 295 S.W.3d 642, 644 (Tex. 2009) (per curiam); Wyly v. Integrity Ins. Sols.,
502 S.W.3d 901, 904 (Tex. App.—Houston [14th Dist.] 2016, no pet.). We consider
the evidence in the light most favorable to the non-movant and indulge reasonable

       5
        For the reasons set forth in the court’s February 15, 2018 memorandum opinion, the
companion motion to dismiss filed in this case is denied. Fort Bend Cty. v. Norsworthy, No. 14–
17–00633–CV, 2018 WL 894050, at *3 (Tex. App.—Houston [14th Dist.] Feb. 15, 2018, no pet).
       6
         As set forth, supra, this court previously determined FBC’s third issue on February 15,
2018. Fort Bend Cty. v. Norsworthy, 2018 WL 894050, at *3. As such, FBC’s third issue is
denied as moot.

                                               6
inferences and resolve all doubts in its favor. See City of Keller v. Wilson, 168
S.W.3d 802, 824 (Tex. 2005); Wyly, 502 S.W.3d at 904. “We credit evidence
favorable to the non-movant if reasonable fact finders could and disregard contrary
evidence unless reasonable fact finders could not.” Id.

      To prevail on a traditional motion for summary judgment, a movant must
establish that no genuine issue of material fact exists so that the movant is entitled to
judgment as a matter of law. Tex. R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp
Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). Summary judgment is
appropriate if the movant conclusively negates at least one essential element of the
plaintiff’s claim. Wyly, 502 S.W.3d at 905.

B.    Applicable law to worker’s compensation subrogation claims
      Under Section 417.001 of the Act, an employee who suffers a compensable
injury may seek damages from a liable third party in addition to pursuing a claim for
compensation benefits. Tex. Lab. Code § 417.001(a); Carty v. State Office of Risk
Mgmt., 733 F.3d 550 (5th Cir. 2013), certified question answered, 436 S.W.3d 298,
302 (Tex. 2014). When an employee or beneficiary (claimant) claims benefits, “the
insurance carrier is subrogated to the rights of the injured employee and may
enforce the liability of the third party in the name of the injured employee or the
legal beneficiary.” Tex. Lab. Code § 417.001(b); Carty, 436 S.W.3d at 302.
Consequently, the carrier is subrogated to the employee’s rights, and the carrier’s
subrogation interest includes the total benefits paid or assumed by the carrier to the
employee or the legal beneficiary. Tex. Lab. Code § 417.001(b); Carty, 436 S.W.3d
at 304.

      Section 417.002 provides the net amount recovered by a claimant in a third-
party action shall be used to reimburse the insurance carrier for benefits, including
medical benefits, that have been paid for the compensable injury. Tex. Lab. Code

                                           7
§ 417.002(a); Carty, 436 S.W.3d at 302. Amounts recovered in excess of the
amount of the reimbursement required under Section 417.002(a) are treated as an
advance against future benefits, including medical benefits, that the claimant is
entitled to receive. Tex. Lab. Code § 417.002(a-b); Carty, 436 S.W.3d at 302. If
the advance is adequate to cover all future benefits, the insurance carrier is not
required to resume the payment of benefits, but if the advance is insufficient, the
insurance carrier shall resume the payment of benefits when the advance is
exhausted. Tex. Lab. Code § 417.002(c); Carty, 436 S.W.3d at 302.

      The Supreme Court of Texas recently addressed these provisions:

      In most cases, workers’-compensation benefits are the exclusive
      remedy against a workers’-compensation subscribing employer for on-
      the-job injuries. See Tex. Lab. Code 408.001(a); Port Elevator–
      Brownsville, L.L.C. v. Casados, 358 S.W.3d 238, 241 (Tex. 2012). But
      an employee may still seek damages from a liable third party in
      addition to receiving workers’-compensation benefits. See Tex. Lab.
      Code § 417.001(a); State Office of Risk Mgmt. v. Carty, 436 S.W.3d
      298, 302 (Tex. 2014). Similarly, a workers’-compensation carrier is
      “subrogated to the rights of the injured employee and may enforce the
      liability of the third party in the name of the injured employee.” Tex.
      Lab. Code § 417.001(b). Under either scenario, the “net amount
      recovered by a claimant in a third-party action shall be used to
      reimburse the insurance carrier for benefits, including medical benefits,
      that have been paid for the compensable injury.” Id. § 417.002(a). The
      upshot of these provisions is that “until the carrier ‘is paid in full[,] the
      employee or his representatives have no right to any funds.’ ” Tex.
      Mut. Ins. Co. v. Ledbetter, 251 S.W.3d 31, 33 & n.1 (Tex. 2008)
      (quoting Argonaut Ins. Co. v. Baker, 87 S.W.3d 526, 530 (Tex. 2002)).
Wausau Underwriters Ins. Co. v. Wedel, 557 S.W.3d 554, 556 (Tex. 2018).




                                           8
C.     Trial court correctly found Melissa made no third-party recovery
       In its first and second issues, FBC advances the argument that the third-party
recovery by Melissa’s adult children is imputed to Melissa and, as a result, the trial
court erred in ordering FBC to continue paying Melissa weekly benefits and not
suspending Melissa’s future benefits. According to FBC, the trial court’s order
effectively applied a beneficiary-by-beneficiary standard rather than a collective-
recovery standard to FBC’s worker’s compensation reimbursement and future credit
in contravention of binding legal precedent.

       Melissa contends that Section 417.002 of the Labor Code only applies if a
claimant (i.e., an employee or a decedent’s legal beneficiary) secures a third-party
recovery. Melissa maintains she made no individual recovery. She neither shared
nor participated in her adult children’s third-party recovery. Thus, Melissa contends
that the collective-recovery standard does not apply in this case and the trial court
correctly ordered FBC to continue paying Melissa’s death benefits.

       1.      Melissa, in her individual capacity, made no recovery from a third-
               party
       It is undisputed that Melissa, in her individual capacity, did not seek recovery
from Bison. Her son, Jacob, filed a wrongful death suit against Bison purportedly
on behalf of all beneficiaries.7          Jacob, however, did not name Melissa in the
petition. 8 Melissa did not participate in the prosecution of the case or mediated

       7
           Under the Texas Wrongful Death Act, a wrongful death claim derives from the cause of
action the decedent could have asserted for personal injuries had he lived. Russell v. Ingersoll–
Rand Co., 841 S.W.2d 343, 347 (Tex. 1992). All or anyone of the parties, to whom the right of
action is given, may bring suit and where it is brought by only one [or some but not all] of the
parties, it must appear that the suit was brought for the benefit of all. Tex. Civ. Prac. & Rem. Code
§ 71.004(b). Moreover, the suit may be brought for the benefit and use of those not actually
prosecuting the claim without their knowledge or consent. See Dennis v. Gulf, C. & S.F. Ry. Co.,
148 Tex. 387, 224 S.W.2d 704, 705 (1949).
       8
         All of the parties who are to share in the recovery must appear on the face of the petition,
and the judgment should award to each of the parties for whose benefit the action is brought the
share as found and directed by the trier of fact. Avila v. St. Luke’s Lutheran Hosp., 948 S.W.3d
                                                 9
settlement agreement with Bison or sign a release in her individual capacity. 9 No
portion of her adult children’s settlement was allocated for Melissa’s individual
benefit.10 If FBC chose to object to apportionment of the mediated settlement on the
basis that Melissa, a necessary party, was not included in the settlement, that issue is
not before this court on appeal. FBC’s appeal is limited to the trial court’s order
granting Melissa’s summary judgment motion and ordering continued death benefit
payments.

           For the above reasons, the trial court correctly found Melissa made no third-
party recovery and FBC was required to continue to pay her death benefits. Because
Melissa did not make a recovery from the third-party, her continued receipt of death
benefits from FBC does not amount to a “double recovery.”

       2.       Collective-recovery standard inapplicable to Melissa
       FBC argues that beneficiaries are treated collectively for purposes of worker’s
compensation. FBC maintains that the effect of the trial court’s order is a double
recovery for the worker’s compensation beneficiaries.

       “[W]hen multiple beneficiaries recover compensation benefits through the
same covered employee, the carrier’s rights to a third-party settlement are
determined by treating it as a single, collective-recovery rather than separate
recoveries by each beneficiary.” Carty, 436 S.W.3d at 300. Collectively, the legal

841, 850 (Tex. App.—San Antonio 1997, writ denied).
       9
          The provision of the act requiring all of the beneficiaries to be parties was enacted chiefly
for the benefit of the defendant in such suit, to protect it against the bringing of several suits
arising out of the same transaction; and if it neglects to require this to be done, those who are not
parties are not precluded by a judgment rendered in a case brought by the other beneficiaries. See
Schwing v. Bluebonnet Exp., Inc., 470 S.W.2d 133, 137 (Tex. Civ. App.—Houston [14th Dist.]
1971), aff’d in part, rev’d in part on other grounds, 489 S.W.2d 279 (Tex. 1973). A defendant’s
failure to raise the non-joinder issue may result in its waiver. Avila, 948 S.W.3d at 850.
       10
          If the defendant chooses not to object in some manner or except to the pleadings, the
defendant runs the risk that the missing beneficiaries will not be precluded from pursuing their
claims by a judgment to which they were not parties. Avila, 948 S.W.3d at 851.

                                                  10
beneficiaries are not entitled to both worker’s compensation benefits and the third-
party recovery because retention of both results in a double recovery. See Foreman
v. Sec. Ins. Co. of Hartford, 15 S.W.3d 214, 219 (Tex. App.—Texarkana 2000, no
pet.).

         FBC’s cases are inapplicable to the underlying facts of this case. As set forth,
supra, Melissa made no third-party recovery. FBC has not provided any applicable
authority that allows FBC to attribute the third-party recovery of Melissa’s adult
children to her.11 Under the facts of this case, the cases applying the collective-
recovery standard are distinguishable and, thus, this standard does not operate to
suspend Melissa’s weekly benefits or future benefits.

         FBC’s issues are overruled.

                                          III.    Conclusion

         Having overruled overruled FBC’s issues, we affirm the trial court’s April 21,
2017 final judgment.



                                                 /s/        Margaret ‘Meg’ Poissant
                                                            Justice


Panel consists of Chief Justice Frost and Justices Spain and Poissant. (Frost, C.J.,
dissenting).




11
  The dissent argues that we are bound by the dicta in Carty, 436 S.W.3d at 302–06, seemingly conflating
a workers’ compensation “claimant,” which Melissa is, with a Texas Labor Code section 417.002 “claimant
in a third-party action,” which Melissa is not. We must read the phrase “claimant in a third-party action” in
context and construe it according to the rules of grammar and common usage. See Tex. Gov’t Code
§ 311.011(a).
                                                       11
