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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.”

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