American Home Assurance Co. v. McDonald

"After six months of discovery, American Home non-suited its claim. McDonald then filed a Motion for Summary Judgment on the counterclaim for attorney's fees, which the trial court granted.This court affirms."

X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:American Home Assurance Co. sought judicial review of a workers compensation decision involving Sherrill McDonald. McDonald filed a counterclaim for attorney’s fees under the Texas Labor Code. After six months of discovery, American Home nonsuited its claim. McDonald then filed a motion for summary judgment on the counterclaim for attorney’s fees, which the trial court granted. American Home now appeals from that judgment, arguing that McDonald does not meet the definition of prevailing party under the statute. HOLDING:Affirmed. Texas Labor Code �408.221(c) provides for “reasonable and necessary attorney’s fees as provided by Subsection (d) incurred by the claimant as a result of the insurance carrier’s appeal if the claimant prevails on an issue on which judicial review is sought by the insurance carrier.” To be entitled to attorney’s fees, American Home argues, McDonald must have won a judgment on the merits of the case and not rely on American Home’s voluntary change in conduct with the filing of its nonsuit. While this appeal has been pending, the El Paso and Amarillo courts of appeals have decided this issue, both holding that a claimant in McDonald’s position is a prevailing party entitled to attorney’s fees under �408.221(c). Pacific Employers Ins. Co. v. Torres, 2005 WL 2044936, 2005 Tex. App. LEXIS 7019 (Tex. App. – El Paso August 25, 2005, no pet. h.); American Home Assurance Co. v. Vaughn, 2005 WL 2396833, 2005 Tex. App. LEXIS 7988 (Tex. App. – Amarillo Sept. 29, 2005, no. pet. h.). This court agrees with those decisions. The trial judge properly awarded attorney’s fees to McDonald for trial and appellate expenses, the court concludes. OPINION:Bill Vance, J.; Gray, C.J., Vance and Reyna, JJ. CONCURRENCE:Tom Gray, C.J. “Based on the analysis by Chief Justice Quinn of the meaning of ‘prevailing party’ in Dean Foods Co. v. Anderson, No. 07-04-0016-CV, 2005 Tex. App. LEXIS 8451, *16-17 (Tex. App. – Amarillo Oct. 13, 2005, no pet. h.), and Am. Home Assur. Co. v. Vaughn, No. 07-04-0349-CV, 2005 Tex. App. LEXIS 7988, *7-9 (Tex. App. – Amarillo Sept. 29, 2005, no pet. h.), I concur in the judgment.”

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

Trending Stories

 

Featured Product

Global Briefing

A weekly, curated selection of our international content from around the globe, across the business of law, in-house, regulatory, technology and more, with expert insights from our senior editors.

Learn More

More from ALM

 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Privacy Policy

About Us / Contact Us / Site Map / Advertise With Us/ Customer Service / Terms of Service/ FAQ / Privacy Policy

Publications

Law Topics

Rankings

More

Law.com

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.