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Click here for the full text of this decision FACTS:Gomez, a city school crossing guard, was struck and injured by a motor vehicle while on the job. The city, a self-insured political subdivision of the state, paid in excess of $78,513.13 in medical and indemnity benefits to Gomez. Gomez later settled an uninsured/underinsured claim with her personal insurance company and received $20,000. The city contends it has a subrogration right to the benefits paid to Gomez under her personal UIM insurance coverage pursuant to 417.001 (b) of the Labor Code. The Texas Workers’ Compensation Commission issued an administrative decision in the city’s favor and Gomez appealed to the trial court. The parties agreed to submit the matter to the trial court on cross-motions for summary judgment based on an agreed statement of facts. Gomez’s motion for summary judgment contends there is no support for the city’s position that it is entitled to subrogation. The trial court granted summary judgment in Gomez’s favor. The city claims a subrogation interest in the $20,000 State Farm paid Gomez, contending it is a third-party recovery pursuant to 417.001(b) of the labor code. Gomez contends the UIM settlement is a benefit derived from her own private insurance, and thus constitutes a first-party recovery not subject to the provisions of 417.001(b). HOLDING:Affirmed. In Liberty Mutual v. Kinser, the San Antonio Court of Appeals recently noted that most jurisdictions resolve the issue of whether a workers’ compensation carrier’s rights extend to UIM benefits against the carrier. The court also noted that the Texas Supreme Court has distinguished between damages awarded by a jury and benefits payable under a UIM policy. In rejecting the workers’ compensation carrier’s right to subrogation benefits, the Kinser court held that “damages” as used in 417.001(a) do not include UIM benefits under the claimant’s personal insurance policy; rather, the term is limited to damages recovered from a third party who is liable to the injured employee because the third party breached a contract or committed a tortious act against the injured employee. Persons who are conscientious and thoughtful purchase their own UIM coverage to protect themselves against losses caused by negligent financially irresponsible motorists. The relationship between an insured who purchases personal UIM insurance coverage and the insurer is that of contracting parties. In such a relationship, the insurer is obligated to pay the insured benefits, not damages, when the insured is entitled to them. OPINION:Yanez, J.; Hinojosa, Yanez, and Castillo, JJ.

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