
IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN


 



NO. 3-91-281-CV



PROVIDENCE LLOYD'S INSURANCE COMPANY,

	APPELLANT

vs.



JEANETTE HOBBS SMITH, INDIVIDUALLY AND AS
REPRESENTATIVE OF THE ESTATE OF
SILAS HOWARD SMITH, DECEASED,


	APPELLEE


 


FROM THE DISTRICT COURT OF BELL COUNTY, 169TH JUDICIAL DISTRICT

NO. 121,072-C, HONORABLE STANTON B. PEMBERTON, JUDGE PRESIDING 

 



	This appeal involves the late filing of a claim by Jeanette Hobbs Smith for workers'
compensation death benefits.  Following a jury trial, the district court rendered judgment against
the carrier, Providence Lloyd's Insurance Company.  We will affirm the judgment of the trial
court.


BACKGROUND
	On January 11, 1986, Silas Howard Smith, while attending a seminar in the course
of his employment, fell to the ground, striking and injuring his knee.  Later that day he was taken
to the hospital emergency room, where, to relieve Mr. Smith's pain, the attending physician
prescribed Tylenol containing codeine, even though both Mr. and Mrs. Smith informed the doctor
that he could not take codeine.  The next day Mr. Smith began vomiting and grew weaker; his
personal physician admitted him into the hospital where he died two weeks later.  The jury found
that the work-related injury and subsequent medical care caused Mr. Smith's death and this
finding is not disputed on appeal.
	Providence Lloyd's instead attacks the legal and factual sufficiency of the evidence
to support the jury's finding that Mrs. Smith had good cause for delay in filing a claim with the
Industrial Accident Board (IAB).  Evidence at trial suggested that Mrs. Smith had relied on
assurances by officers of S.P.J.S.T., the fraternal life insurance company and benevolent society
which employed her husband, that they were taking care of the filing of the workers'
compensation claim.  The jury apparently believed that Mrs. Smith acted reasonably in her
reliance on these statements, and the district court entered judgment for Mrs. Smith.


DISCUSSION
I.  LEGAL SUFFICIENCY
	In its first point of error, Providence Lloyd's attacks the legal sufficiency of the
evidence to support the finding that Mrs. Smith had good cause for delay.  When reviewing legal
sufficiency points of error, we must consider only the evidence and inferences tending to support
the finding, and disregard all evidence and inferences to the contrary.  Alm v. Aluminum Co. of
America, 717 S.W.2d 588, 593 (Tex. 1986).
	It is well settled in Texas that an employer's representation that the claim is being
handled can excuse an employee's failure to timely file a workers' compensation claim.  See Lee
v. Houston Fire and Casualty Ins. Co., 530 S.W.2d 294, 296 (Tex. 1975), and Texas Employer's
Insurance Association v. Herron, 569 S.W.2d 549, 554 (Tex. Civ. App. 1978, writ ref'd n.r.e.). 
However, the sole test for permissible delay in filing a workers' compensation claim remains
whether the claimant acted as a reasonably prudent person would have under the circumstances. 
Texas Casualty Ins. Co. v. Beasley, 391 S.W.2d 33 (Tex. 1965).  Generally, a one-time
representation by the employer that the claim will be taken care of is not sufficient to make
inaction on the part of the claimant reasonable.  See Consolidated Casualty Ins. Co. v. Perkins,
279 S.W.2d 299 (Tex. 1955), and Texas Employer's Ins. Ass'n v. Coronado, 519 S.W.2d 517
(Tex. Civ. App. 1975, writ ref'd n.r.e.).  But cf. Standard Fire Ins. Co. v. Morgan, 745 S.W.2d
310, 311 (Tex. 1987).
	The relevant question in this case is whether a reasonably prudent person in Mrs.
Smith's position would have remained inactive in reliance on the representations by the officers
of S.P.J.S.T.  Coronado, 519 S.W.2d at 519.  Mrs. Smith testified that she was assured
repeatedly by Bernie Gebala, the vice-president of S.P.J.S.T., that "everything would be taken
care of."  Mrs. Smith further testified that she believed that when Gebala said "everything" this
included the workers' compensation claim, and since this is a legal sufficiency point of error we
must accept Mrs. Smith's reasonable interpretation of their conversations.  See Morgan, 745
S.W.2d at 311 (the jury found that the claimant's inaction was reasonable based solely on the
claimant's own testimony that her employer promised that "everything would be taken care of"). 
The fact that Gebala was a close personal friend of the Smiths enhances the reasonableness of her
reliance on his reassurances.  See Lee, 530 S.W.2d at 296.
	Additionally, several months after her husband's death, Mrs. Smith visited the
offices of S.P.J.S.T. to check on some of her husband's affairs, including the workers'
compensation claim.  She spoke with Leonard Mikeska, the S.P.J.S.T. officer in charge of
workers' compensation, and according to Mrs. Smith, he stated specifically that he had filed the
claim.  This evidence is sufficient to overcome the distinction made in some cases between
promised future action by an employer and a bald factual statement that the claim has already been
filed.  These cases suggest that a promise of future action alone should not completely reassure
the reasonably prudent person.  Compare Bray v. Texas Employer's Insurance Ass'n, 483 S.W.2d
907 (Tex. Civ. App. 1972, writ ref'd n.r.e.) (mere promise of future action insufficient) with
Morgan, 745 S.W.2d 310 (promise of future action was sufficient under the circumstances). 
There is, therefore, more than a scintilla of evidence suggesting that a reasonably prudent person
would have relied on the statements made by the officers of S.P.J.S.T.
	Providence Lloyd's further attacks the legal sufficiency of the verdict by alleging
that any initial good cause that Mrs. Smith might have enjoyed evaporated either when she
received notice and claim forms from the IAB, or when she contacted her attorney, Ben Harvie,
about the potential workers' compensation claim.  Even if the receipt of notice and claim forms
should have alerted Mrs. Smith to the need to file, her conversation with Mikeska, in which he
said that the claim had already been filed, came after receipt of the forms.  This statement by
Mikeska, along with Gebala's frequent if broadly phrased assurances, supports the jury's apparent
conclusion that Mrs. Smith reasonably believed that she had no affirmative duty to file.
	Providence Lloyd's next argues that any good cause for delay could not exist after
September 1986 when Mrs. Smith first discussed the workers' compensation claim with her
attorney, Ben Harvie.  In a meeting held to discuss a medical malpractice claim arising out of Mr.
Smith's death, the topic of workers' compensation arose when Harvie advised Mrs. Smith that she
might also have such a claim.  Mrs. Smith, however, told Harvie that S.P.J.S.T. was handling
the claim for her, and Harvie apparently did not force the issue because he believed Mrs. Smith's
statement and because the claim was not adversarial in nature at that time.
	Providence Lloyd's also contends that at the very latest, once Mrs. Smith employed
Harvie to represent her in the matter of the workers' compensation claim, any good cause for
delay that she previously enjoyed ended at that time.  They argue that the two and one-half months
that Harvie took to file the claim was an unreasonable period of time, and the letter by which
Harvie notified the IAB of the claim was insufficient for that purpose.  We disagree.
	Mrs. Smith's suspicions were first aroused when she inadvertently received a copy
of the employer's report to the IAB filed by S.P.J.S.T.  This report contained factual statements
about how Mr. Smith hurt his knee which Mrs. Smith did not agree with and she therefore
employed Harvie to investigate the matter on September 3, 1987.  Harvie personally contacted
the IAB and, on November 19, 1987, he followed up the call with a letter to the Board asking for
copies of the documentation already in the file.  That letter, read in the light most favorable to the
jury's finding, suggests that Ben Harvie still believed that the claim had already been filed.  The
IAB responded with a letter dated February 8, 1988, in which they notified Harvie that the
employer had controverted the case.  The IAB also enclosed forms for filing a claim, which Mrs.
Smith and Harvie filled out and returned by February 12, 1987, four days later.
	The record contains some evidence, therefore, that the post-attorney involvement
delay was reasonable for purposes of investigating, preparing, and filing the claim.  Texas
Employer's Ins. Ass'n v. Brantley, 402 S.W.2d 140 (Tex. 1966).  The question of whether
Harvie's original letter of inquiry to the IAB was sufficient to constitute notice is irrelevant given
Mrs. Smith's and Harvie's belief that a claim had already been filed.  Harvie's letter, in fact,
speaks of the claim as having been filed and only requests forms for indicating that Harvie would
be representing Mrs. Smith in any further action on the matter.
	We conclude, therefore, that the record contains sufficient evidence to support the
jury's finding that Mrs. Smith had good cause for delay in filing the workers' compensation claim
resulting from the death of her husband.  Accordingly, we overrule Providence Lloyds' legal
sufficiency point of error.
II.  FACTUAL SUFFICIENCY
	In its second point of error, Providence Lloyd's attacks the factual sufficiency of
the evidence to support the jury's finding that Mrs. Smith had good cause for delay.  In ruling on
this point, we must consider all of the evidence and set aside the judgment only if it is so contrary
to the overwhelming weight of the evidence as to be clearly wrong and unjust.  Cain v. Bain, 709
S.W.2d 175, 176 (Tex. 1986).
	The evidence introduced by the defendants at trial is, at best, weak.  At no time
during his testimony did Gebala deny having had frequent contact with Mrs. Smith after her
husband's death, nor did he deny reassuring her in broad terms.  Furthermore, the testimony of
both Mrs. Smith and Bernie Gebala demonstrates the depth of the friendship that had existed
between them.  Gebala wrote the eulogy for Mr. Smith's funeral, and in a letter to Mrs. Smith
he called himself a lifelong friend.  Nor does the testimony of Mikeska refute Mrs. Smith's
testimony that he told her that a claim had been filed.
	Much is made by Providence Lloyd's of a letter written by Mrs. Smith and
addressed to Gebala.  In the letter she claims that she felt betrayed by Gebala because of
statements he made in answer to a request by her attorney regarding the medical malpractice
claim.  Providence Lloyd's suggests that if she did feel betrayed by these statements she could not
have continued to reasonably rely on Gebala's assurances, which did continue even after she wrote
the letter.  However, Mrs. Smith's sense of betrayal by Gebala in this matter does not necessarily
suggest that she should have discontinued her trust in Mikeska's previous statement that the claim
had in fact been filed, nor does it mean that she necessarily could not trust Gebala, a self-professed lifelong friend, on any other matter.  Moreover, the frequent phone conversations
continued between Mrs. Smith and Gebala, and Gebala wrote a letter to Mrs. Smith in which he
again reassured her that he was treating her as fairly as he could.
  	Competent evidence of probative force exists in the record to support the conclusion
that Mrs. Smith reasonably believed the representations by officers of S.P.J.S.T. that they were
taking care of her claim.  The appellant has produced no evidence which casts any real doubt on
this contention.  Accordingly, we overrule Providence Lloyd's factual sufficiency point of error,
and affirm the judgment of the trial court.



  
					Jimmy Carroll, Chief Justice
[Before Chief Justice Carroll, Justices Aboussie and B. A. Smith]
Affirmed
Filed:   April 8, 1992
[Publish]
