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Click here for the full text of this decision FACTS:The appellant, Pacific Employers Insurance Co., filed an appeal from a decision of a Texas Workers’ Compensation Commission appeals panel suing Severiano Torres, an injured employee, and contesting the panel’s award. Torres, the appellee, answered, filing a general denial and claim for attorney’s fees under Texas Labor Code 408.221. After almost 19 months of litigation, and less than three weeks before trial, Pacific filed a notice of (nonsuit dismissing all claims against Torres without prejudice. The trial court then granted Torres’ motion for attorney’s fees. Pacific appealed, contending in one issue that the Texas Labor Code does not provide for an award of attorney’s fees to an employee when a suit filed by an insurance carrier seeking judicial review of the final decision of a commission appeals panel is disposed of by nonsuit. HOLDING:Affirmed. Pacific asserts that because a nonsuit was filed disposing of the litigation, Torres is not a prevailing party as contemplated by the statute in the absence of a judicial ruling on the merits of the claim. The court disagrees and finds that there is a basis for the award of attorney’s fees under the record. The court notes that the statute authorizes the award to a worker if the worker prevails in the underlying case being pursued by the insurance carrier. Here, Pacific nonsuited its claims on the eve of trial and after considerable discovery had been undertaken. After all of its claims were nonsuited, the court finds that the employee-defendant, Torres, is in the same position he would have been in if he had prevailed after a trial. The court states that, in fact, he is in the same position that he was prior to the suit being filed, and he was in during the proceedings. The court concludes that under the facts of this case, the employee is a prevailing party for purposes of the statute. As the prevailing party below, he is defending against a challenge by the insurance carrier. The court points out that 408.221(c) provides for some recovery of attorney’s fees by an employee after appeal of the commission’s decision by an insurance carrier seeking judicial review. The court holds that the inequities inherent in the defense of an award by an employee to a challenge by an insurance carrier was contemplated by the statute, even recognizing that an employee may recover attorney’s fees when prevailing on only some of the claims. OPINION:Barajas, C.J.; Barajas, C.J., McClure, and Chew, JJ.

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