                                     NO. 07-05-0373-CV

                               IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL C

                                     JUNE 28, 2006
                            ______________________________

                              YVONNE COOPER, APPELLANT

                                              V.

                      ST. PAUL FIRE AND MARINE INS. CO. AND
                  TEXAS MUTUAL INSURANCE COMPANY, APPELLEES
                        _________________________________

               FROM THE 237TH DISTRICT COURT OF LUBBOCK COUNTY;

                   NO. 97-560,059; HONORABLE SAM MEDINA, JUDGE
                          _______________________________


Before QUINN, C.J., and REAVIS and HANCOCK, JJ.


                                 MEMORANDUM OPINION


          Appellant, Yvonne Cooper appeals the denial of her summary judgment and the trial

court’s granting of appellees’, St. Paul Fire and Marine Insurance Company (St. Paul) and

Texas Mutual Insurance Company (Texas Mutual), motions for summary judgment. We

affirm.
                                      Background


      Cooper was injured in 1994 while working for NTS Communications during a time

that Texas Mutual1 was the company's workers’ compensation carrier. After receiving

Cooper’s workers’ compensation claim, Texas Mutual began to pay benefits. Shortly

thereafter, Cooper was also diagnosed with a degenerative disk disease.


      On July 9, 1996, Cooper reinjured her back while working for NTS; at that time, St.

Paul was the workers’ compensation carrier for the company. Following the 1996 injury,

Cooper filed a second claim with the Texas Workers’ Compensation Commission

(Commission) for additional benefits. The Commission consolidated the second claim with

Cooper's previous administrative claim against Texas Mutual for the 1994 injury.


       On August 19, 1996, Texas Mutual filed a Motion of Refused/Disputed Claim on the

basis that Claimant had reinjured her back on July 9, contending that St. Paul was

responsible for new medical expenses incurred after the 1996 injury. In September 1996,

after a treating doctor confirmed Cooper’s previous diagnosis of a degenerative back

condition and chronic lower back pain, St. Paul disputed Cooper's claim based on its belief

that the medical expenses incurred were related to Cooper's degenerative back condition

as well as the 1994 injury.


       Because both companies denied coverage of medical expenses, Cooper requested

a benefit review conference (BRC) from the Commission. After the BRC, a benefits review


      1
      At the time of the injury, the company was known as the Texas Workers’
Compensation Insurance Fund.

                                            2
officer determined that the 1994 injury was not a producing cause of Cooper's then current

back condition, and that St. Paul was responsible for payment of medical expenses

incurred by Cooper. Pursuing administrative remedies, St. Paul sought a contested case

hearing (CCH). At the hearing, the CCH officer affirmed that the 1996 injury was a

producing cause of Cooper's back condition, that the 1994 injury was not solely the cause

of Cooper's then current back condition, and that both Texas Mutual and St. Paul were to

pay benefits. St. Paul appealed the CCH officer's decision; however, the commission

appeals panel affirmed the CCH officer's decision.


       Having exhausted its administrative remedies, St. Paul sought judicial review by

appealing to the District Court and requesting a jury trial. See TEX . LAB . CODE ANN . §

410.251 (Vernon 2006). While awaiting trial, Texas Mutual and St. Paul entered into an

agreement nonsuiting their claims against one another, and Texas Mutual was not required

to participate in the trial.


       In September 2004, a jury trial was held in which the jury was asked to answer three

questions: (1) Did Cooper injure her back during the course of her employment on July 9,

1996; (2) is Cooper's back condition (after 1996) solely due to her 1994 injury; and (3) is

Cooper's back condition (after 1996) a result of the 1996 injury? Although the jury

concluded that Cooper did suffer an injury in 1996, the jury answered the next two

questions as "NO." The trial court concluded that the jury found that the 1994 injury was

not the sole cause of Cooper's current back condition, and that the jury found that Cooper's

back condition was not the result of the 1996 injury. Based on the jury findings, the trial

court entered judgment for St. Paul, and denied Cooper's request for attorney fees.

                                             3
       In addition to the jury trial requested by St. Paul, Cooper had filed counterclaims

against St. Paul and a third party petition against Texas Mutual alleging bad faith, violations

of the Deceptive Trade Practices Act (DTPA), and violations of article 21.21 of the Texas

Insurance Code.      The basis of the claims were that the two insurance companies

misrepresented to the trial court that an aggravation of an injury was not a new injury and

that the two companies colluded to refuse payment to Cooper of medical expenses pending

trial. However, these counterclaims were severed from the jury trial requested by St. Paul

and were abated until the conclusion of the jury trial. After the jury’s verdict, the trial court

consolidated Cooper’s counterclaims with the cause tried before the jury and set all the

cases for a hearing on the parties’ motions for summary judgment. At the hearing, the trial

court heard the parties’ evidence, and awarded judgment in favor of St. Paul based on the

jury’s verdict, granted St. Paul’s and Texas Mutual’s motions for summary judgment as to

the Cooper’s counterclaims, and denied Cooper’s motion for summary judgment.


                                       Issues presented


       Cooper raises seven issues on appeal contending that the trial court erred in: (1)

awarding judgment in favor of St. Paul based on the jury's answers; (2) denying Cooper’s

Motion to Award Attorney Fees; (3) granting the insurance companies' motions for

summary judgment and denying Cooper's motion for summary judgment; (4) excluding part

of Cooper's summary judgment evidence against St. Paul; (5) denying Cooper's Motion to

Compel disclosure of the agreement letter between the companies during the summary

judgment hearing; and (6) refusing to allow evidence of the agreement between the

companies into evidence during the jury trial. As a seventh issue, Cooper contends that,

                                               4
if the appeal of the jury trial is remanded back to the trial court, the erroneously excluded

evidence should be allowed into evidence.


                Judgment in favor of St. Paul and Denial of Attorney Fees


       A trial court has a duty to ascertain the intention of a jury's answers, harmonize or

reconcile the answers and issues, and render a judgment in conformity with the jury’s

answers. See State v. Hale, 136 Tex. 29, 41, 146 S.W.2d 731, 739 (1941). When jury

findings are ambiguous, a trial court may examine the issues and evidence submitted; after

an examination of the issues and evidence, the trial court can then ascertain the proper

interpretation of the verdict. See Jackson v. U.S. Fidelity and Guar. Co., 689 S.W.2d 408,

412 (Tex. 1985); Hale, 146 S.W.2d at 739. In appealing from an adverse judgment, an

appellant has the burden to show that the judgment of the trial court was erroneously

rendered and entered. See Travelers Ins. Co. v. Brown, 402 S.W.2d 500, 504 (Tex.1966).

If the jury findings are ambiguous or unclear, the appellate courts must try to interpret the

findings so as to uphold the judgment. First Federal Sav. & Loan Ass'n of Dallas v. Sharp,

359 S.W.2d 902, 903 (Tex.1962).

       Cooper contends that the trial court misinterpreted the jury’s verdict and erroneously

awarded judgment in favor of St. Paul. Cooper relies on Texas Employers Ins. Ass’n v.

Page for its contention that, since the jury found that the 1994 injury was not the sole cause

of Cooper’s back condition, St. Paul was not absolved of liability. See Texas Employers

Ins. Ass’n v. Page, 553 S.W.2d 98 (Tex. 1977).        Hence, Cooper claims that judgment

should not have been awarded to St. Paul and that the trial court erred in doing so.



                                              5
       However, contrary to Cooper's representation, Texas Employers does not stand for

the premise that an insurance carrier incurs liability for a subsequent injury unless it

negates a prior injury as the sole cause. Texas Employers dealt with an instructed verdict

in which the trial court did not allow a jury to make a determination of the distribution of

liability between the two injuries. Id. at 101. In determining that the trial court should not

have granted an instructed verdict, the Texas Supreme Court stated that a material issue

was raised and that a request for an instructed verdict should have been denied because

the insurance company did not show that the prior injury was the sole cause of the present

condition. Id. at 102. As such, the Supreme Court held that the jury should have been

allowed to make a determination of liability. Id. In this case, the jury found that the 1994

injury was not the sole cause of Cooper's back condition; however, it also found that the

back condition was not a result of the 1996 injury. Accordingly, Texas Employers is

inapplicable to the present case because the jury in the present case was allowed to return

a verdict and specifically found that Cooper's back condition was not the result of the 1996

injury.2 Thus, to the extent that the jury’s answers can be considered ambiguous, we

conclude that the trial court has harmonized the jury’s answers and issues and render a

judgment in conformity with the jury's answers. See Hale, 136 Tex. at 41.


       Next, Cooper contends that the trial court erred in denying her Motion to Award

Attorney Fees. The responsibility of attorney fees shall be governed by the workers’

compensation laws in effect on the date of the request for judicial review. See TEX . LAB .



       2
         Considering that the jury also had evidence of Cooper’s degenerative disk disease,
the jury answers are not inconsistent.

                                              6
CODE ANN . § 408.221 historical note (Vernon 2006) [Act of May 25, 2001, 77th Leg., R.S.,

ch. 1456, § 8.04, 2001 Tex. Gen. Laws 5167, 5190]. The law in effect when the judicial

review was requested by St. Paul did not provided for attorney fees to be paid by an

insurance company that successfully seeks and prevails upon judicial review. See Act of

May 12, 1993, 73rd Leg., R.S., ch. 269, § 1, 1993 Tex. Gen. Laws 987, 1191. Therefore,

we conclude that the trial court did not err in denying Cooper’s request for attorney fees.3

We overrule Cooper’s first two issues.


                  Summary Judgment in favor of Insurance Companies
                              and Denial of Cooper’s Motion


       Relating to her counterclaims, Cooper contends that the insurance companies

colluded to delay payment of medical expenses. During the appeal process, St. Paul did

not make payments to Cooper. Texas Mutual would make payments for expenses, but only

if related to the 1994 injury and continued to dispute payment of expenses it felt were

related to the 1996 injury. Thus, Cooper contends that the insurance companies engaged



       3
         Appellant contends that the present lawsuit is governed by the current section
408.221 of the Texas Labor Code which includes a provision allowing recovery of attorney
fees from insurance companies who seek judicial review of an appeals panel decision when
a claimant prevails on the issues raised on judicial review. Act of May 25, 2001, 77th Leg.,
R.S., ch. 1456, § 8.01, sec. 408.221, 2001 Tex. Gen. Laws 5167, 5189. (amended 2005)
(current version at TEX . LAB . CODE ANN . § 408.221 (Vernon 2006)). Even if the present
lawsuit was governed by the current section 408.221, we have concluded that the trial court
did not err in awarding judgment in favor of St. Paul because Cooper is not the prevailing
party at trial. Since Cooper is not the prevailing party and has not provided any statutory
authority for the award of attorney fees to her as the non-prevailing party, we conclude that
any basis for an award of attorney fees to a non-prevailing party has been inadequately
briefed and thus waived. See TEX . R. APP . P. 38.1(h); See Thedford v. Union Oil Co. of
Cal., 3 S.W.3d 609, 615 (Tex.App.-Dallas 1999, pet. denied).

                                             7
in unconscionable actions and delayed an offer of medical care despite the BRC and CCH

findings in Cooper's favor. Further, Cooper contends that St. Paul falsely represented to

the trial court that aggravation of injury is not an injury under the Texas Workers'

Compensation Act, and that Texas Mutual joined St. Paul in that representation.4 Cooper’s

theories of liability against St. Paul and Texas Mutual are claims of bad faith, a violation of

article 21.21 of the Texas Insurance Code,5 and a violation of chapter 17, subchapter E of

the Texas Business and Commerce Code, commonly known as the Texas Deceptive Trade

Practices-Consumer Protection Act. St. Paul counters that, since the jury trial absolved St.

Paul of liability of the underlying compensation claim, no extra contractual liability exists.

Finally, both companies also raise the defense of statute of limitations to the extra

contractual allegations made by Cooper.


       When both parties move for summary judgment on the same issues and the trial

court grants one motion and denies the other, a reviewing court examines the summary

judgment evidence presented by both sides, determines all questions presented, and

renders the judgment the trial court should have rendered. Valence Operating Co. v.

Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).



       4
       St. Paul sought and received a summary judgment based on the legal theory that
aggravation of a prior injury is not an "injury" as defined by the Texas Workers'
Compensation Act. However, the granting of the summary judgment was appealed and
reversed by this court in Cooper v. St. Paul Fire & Marine Ins. Co., 985 S.W.2d 614 (Tex.
App.–Amarillo 1999, no pet.).
       5
         The Texas Insurance Code has since been codified; however the codification was
not intended to effect substantive changes in the law. See Act of May 22, 2003, 78th R.S.,
ch. 1274, § 27, 2003 Tex. Gen. Laws 3611, 4139. For purposes of clarity and consistency,
we will use the same terminology as the parties.

                                              8
       Although Cooper believes that St. Paul was acting in bad faith by disputing an

aggravation of an injury as a valid claim, simply disputing a claim, even if it is later

determined to be an erroneous denial, does not subject a workers’ compensation carrier

to liability for bad faith. See Aranda v. Ins. Co. of N. Am., 748 S.W.2d 210, 213 (Tex.

1988). A workers' compensation claimant who asserts that a carrier has breached the duty

of good faith and fair dealing by refusing to pay or delaying payment of a claim must

establish (1) the absence of a reasonable basis for denying or delaying payment of the

benefits of the policy and (2) that the carrier knew or should have known that there was not

a reasonable basis for denying the claim or delaying payment of the claim. Id. More

importantly, when a jury finds that a party is not covered under an insurance policy and is

not entitled to recover under the policy, a company is not liable for a breach of good faith

dealing, a violation of the Insurance Code, or a violation of the Texas Deceptive Trade

Practices-Consumer Protection Act for its denial of a claim. See generally Commonwealth

Lloyds Ins. Co. v. Downs, 853 S.W.2d 104, 118-19 (Tex.App.–Fort Worth 1993, writ

denied); see also Am. Motorists Ins. Co. v. Fodge, 63 S.W.3d 801, 804 (Tex. 2001) . Since

the jury in this matter found that, although Cooper did receive an injury in 1996, Cooper’s

back condition was not a result of the 1996 injury, we conclude that St. Paul is not liable

for a breach of good faith dealing, or any violation of the Texas Insurance or Business and

Commerce Code. We conclude that the trial court correctly granted St. Paul’s motion for

summary judgment and denied Cooper’s motion for summary judgment on Cooper’s extra

contractual claims against St. Paul.




                                             9
       As to Cooper’s extra contractual claims against Texas Mutual, Texas Mutual

contends that Cooper’s claims are barred by the statute of limitations. In each of Cooper’s

counterclaims, the statute of limitations is two years. See TEX . CIV . PRAC . & REM . CODE

ANN . 16.003; Act effective April 4, 1985, 69th Leg., ch. 22, § 3, 1985 Tex. Gen. Laws 395,

395-96 (repealed 2003) (current version at TEX . INS . CODE ANN . § 541.162) (Vernon 2006);

TEX . BUS . & COM . CODE ANN . § 17.565 (Vernon 2002). Although Cooper cites Murray v.

San Jacinto Agency, Inc., 800 S.W.2d 826 (Tex. 1990), for the proposition that the statute

of limitation begins when a company wrongfully denies coverage, Cooper misinterprets the

case. In Murray, the court emphasized that a cause of action accrues at the time when

facts come into existence which authorize a claimant to seek a judicial remedy, not when

the insurance company admitted to wrongly denying the claim. Murray, 800 S.W.2d at

828. Put another way, a cause of action can generally be said to accrue when the wrongful

act effects an injury. Id. (citing Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex.

1990)). In this particular case, the act causing injury is the denial of benefits by the two

companies. Texas Mutual’s denial occurred when the company notified Cooper on August

19, 1996, in writing, that it was disputing the claim. Based on this denial, Cooper was able

to seek legal remedy by requesting a BRC. Because of the legal remedies available to

Cooper, we conclude that the statute of limitations began at that point. Cooper did not

raise the extra contractual claims against Texas Mutual until February 22, 1999, which is

outside the two year statute of limitations. Therefore, we conclude that the trial court

properly granted Texas Mutual’s motion for summary judgment, and properly denied

Cooper’s motion of summary judgment. We overrule Cooper’s third issue.



                                            10
                       Exclusion of Summary Judgment Evidence
                             and Denial of Motion to Compel


       Next, Cooper disputes the trial court’s ruling on three exhibits: portions of Texas

Mutual's records consisting of communications between the insurance companies, a letter

from Cooper's counsel to Texas Mutual, and Cooper's attorney's affidavit proving attorney

fees. Additionally, Cooper contends the trial court erroneously denied its Motion to Compel

seeking communication between the companies because, if privileged, the notes were

unsupported by documentation supporting its privileged status. Both of these issues relate

to the exclusion of summary judgment evidence.


       We assume that Cooper is arguing that, because the evidence was excluded, the

summary judgment was improper. Admission or exclusion of evidence is within the

discretion of the trial court.   City of Brownsville v. Alvarado, 897 S.W.2d 750, 753

(Tex.1995). Reversing a summary judgment based on an evidentiary error requires

appellant to show that there was indeed an evidentiary error and that the error probably

resulted in an improper judgment. Id. To successfully challenge an evidentiary ruling, the

complaining party must show that the judgment turns on the particular piece of evidence

that was excluded or admitted. Alvarado, 897 S.W.2d at 753-54.


       However, Cooper only asserts that evidentiary errors exist. Cooper makes no

attempt to connect any individual piece of excluded evidence to any particular issue or to

argue that the judgment of the trial court turned on the excluded evidence. Therefore,

without deciding whether evidentiary error exists, we hold that Cooper has failed to carry


                                            11
her burden necessary for us to find reversible error in the trial court's evidentiary rulings.

Id. Cooper's fourth and fifth issues are overruled.


           Exclusion of evidence at trial of the insurance companies agreement


       Finally, Cooper contends that the trial court erred in excluding the companies' letter

agreement from the trial because the agreement was a party admission, TEX . R. EVID .

801(e)(2), and evidence of the company’s inconsistent position, TEX . R. EVID . 613.

However, under the abuse of discretion standard applied to decisions on whether to admit

or exclude evidence, see Alvarado, 897 S.W.2d at 753-54, Cooper has not discussed how

the evidentiary ruling, if error, resulted in an improper judgment. Id. Hence, we conclude

that the trial court did not commit reversible error.6


       Therefore, we overrule Cooper’s sixth issue.


                                         Conclusion


       Having overruled all of Cooper’s issues,7 we affirm the trial court.


                                           Mackey K. Hancock
                                               Justice


       6
        Cooper also contends that the letter agreement improperly released Texas Mutual
from suit, and that judgment was required to be rendered in her favor. Although Cooper
cites Latham v. Security Ins. Co. of Hartford, 491 S.W.2d 100, 105 (Tex. 1972) for the
proposition that all parties before the commission must be made parties to the suit, a close
inspection of Latham reveals that only parties who desire to challenge the administrative
decision are required to participate in the suit. Id.
       7
         Having addressed and overruled Cooper’s first six issues, we need not address
Cooper’s final request to consider the admissibility of evidence upon remand. TEX . R. APP .
P. 47.1.

                                              12
