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Click here for the full text of this decision FACTS:The appellant, Douglas Caesar, challenges the trial court’s judgment entered after a jury verdict awarding $4,000 in damages to the appellee, Thomas Bohacek, on his claim for negligence. HOLDING:The court reverses that portion of the trial court’s judgment awarding Bohacek his reasonable attorney’s fees and expenses as well as pre-and post-judgment interest on those amounts, and renders judgment that Bohacek, as the successful party, recover only his taxable court costs from Caesar. The trial court awarded Bohacek his attorney’s fees and expenses “pursuant” to Texas Labor Code 417.003. Although the trial court did not cite to a specific subsection of 417.003, subsection (a) is the only subsection that allows a claimant to recover both attorney’s fees and expenses. Caesar was neither an insurance company, nor a certified self- insurer, nor a governmental entity; he was a third-party tortfeasor. Accordingly, because 417.003(a) only provides for a claimant to recover attorney’s fees and expenses from an insurance carrier, Caesar was not statutorily obligated to pay Bohacek’s attorney’s fees and expenses. The court notes that Reliance National Indemnity Co., the only party to the litigation that met the Labor Code’s definition of insurance carrier, was “actively represented” by its own attorney, C. Marcy Unkauf, in this case. Unkauf filed Reliance’s petition in intervention, its designation of expert witnesses, and its affidavit and accompanying business records establishing the amount of workers’ compensation benefits that it had paid to Bohacek. Additionally, Unkauf negotiated the settlement with Caesar and State Farm and filed a copy of the settlement agreement with the trial court. Reliance did not obtain a “free ride” from Bohacek and his attorneys, and Bohacek would not have been entitled to recover his attorney’s fees and expenses from Reliance under section 417.003(a). The court holds that the trial court erred in ordering Caesar to pay Bohacek his attorney’s fees and expenses. Caesar argues that the trial court erred in signing a final judgment in favor of Bohacek because, “when the subrogation lien [was] properly applied to the damages awarded [by the jury], Bohacek recover[ed] nothing from Caesar” and “Caesar was the prevailing party.” Moreover, Caesar asserts that, because he was the prevailing party, he was entitled to recover his court costs from Bohacek. Texas Rule of Civil Procedure 131 provides that “[t]he successful party to a suit shall recover of his adversary all costs incurred therein, except when otherwise provided.” A determination of whether a party is the prevailing or successful party must be based upon success on the merits, and not on whether damages were awarded. Johns v. Ram-Forwarding Inc., 29 S.W.3d 635 (Tex. App. � Houston [1st Dist.] 2000, no pet.). Here, Bohacek was the successful party because the jury found Caesar negligent and awarded Bohacek $4,000 in damages. It is immaterial that the trial court, in its final judgment, found that the jury’s damage award was completely offset by the subrogation lien held by Caesar and State Farm. The court holds that the trial court did not err in signing a judgment in favor of Bohacek and that Caesar was therefore not entitled to recover his court costs. OPINION:Terry Jennings, J.; Nuchia, Jennings and Keyes, JJ.

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