Claimant’s Bad Faith Suit Resulted in Untimely Suit for Judicial Review
The Third Court of Appeals, sitting in Austin, has affirmed the dismissal of a claimant’s suit for judicial review because it was not timely filed following the decision of the Appeals Panel. In Zurich American Ins. Co. v. Baldwin, (No. 03-14-00457-CV, May 10, 2016), the court considered a claimant’s appeal that was made procedurally complex because of the claimant’s attempt to file a bad faith lawsuit instead of a suit for judicial review.
Baldwin was employed as a laundry attendant in a hotel in 2006 and 2007, during which time she asserted claims for two compensable injuries, one on March 1, 2006, and the other on August 20, 2007. The Division heard both claims in a contested case hearing on June 14, 2012. The Hearing Officer found in Zurich’s favor on all issues, and Baldwin filed a request for appeal with the Appeals Panel. On September 4, 2012, the Appeals Panel issued notice that the Hearing Officer’s decision had become final as of that date. On February 21, 2013, Baldwin requested reconsideration of the decision, and on March 22, 2013, DWC notified her that the Appeals Panel does not have jurisdiction to reconsider a case.
On October 5, 2012, Baldwin filed suit against Zurich alleging “bad faith practices” and “breach of duty of good faith” and seeking economic damages. Zurich filed a no-evidence motion for partial summary judgment, special exceptions, and a plea to the jurisdiction, all of which the trial court granted on January 3, 2013. The trial court dismissed Baldwin’s suit in its entirety and stated in its order that the order was final and appealable. Baldwin did not appeal the order but on April 18, 2013, filed a second suit against Zurich reasserting her bad faith allegations and for the first time seeking judicial review of the appeal panel’s decision.
Zurich filed a motion for partial summary judgment as to the bad faith claims on the basis of res judicata. The trial court granted the motion “as to all claims, except for the appeal of Ms. Baldwin’s worker’s compensation claims from the Texas Department of Insurance, Division of Workers Compensation, which remains unaffected by this Order.” Zurich then filed an amended answer and plea to the jurisdiction arguing that Baldwin’s suit for judicial review was untimely and that the trial court therefore lacked subject matter jurisdiction. The trial court granted the plea and issued an order dismissing Baldwin’s claims. Baldwin then filed an appeal challenging the order of dismissal.
Zurich argued on appeal that Baldwin’s second lawsuit, the first suit to seek judicial review of the Division’s decision in her case, was filed too late to invoke the trial court’s jurisdiction.
The Appeals Panel issued notice that the Hearing Officer’s decision and order had become final on September 4, 2012. Undersection 410.252(a), Baldwin had 50 days from that date, or until October 25, 2012, to file suit seeking judicial review of the decision. See Tex. Lab. Code § 410.252(a). Although Baldwin contends that she met the statutory requirement by filing her first petition on October 5, 2012, the record reflects that in that petition, she alleged only claims for “bad faith practices” and “breach of duty of good faith.” Moreover, even if we were to construe the first petition as asserting a claim for judicial review of the decision of the Appeals Panel, the trial court dismissed that suit in its entirety, and Baldwin did not appeal the dismissal. Baldwin’s second petition, filed in the suit underlying this appeal, in which Baldwin asserted a request for judicial review of the decision of the Appeals Panel, was not filed until seven months after the Appeals Panel’s notice. Consequently, we conclude that Baldwin’s suit for judicial review was untimely and that the trial court did not err in granting Zurich’s plea to the jurisdiction and dismissing Baldwin’s claims because she failed to file her petition within the statutory deadline.
Before reaching the merits of the case, the court of appeals noted that there is a split of authority between the appellate courts in Texas over whether an untimely suit for judicial review should be addressed by a plea to the jurisdiction or a plea in limitations. However, because Baldwin did not challenge the propriety of Zurich’s plea to the jurisdiction on this ground, the court assumed that the issue is a jurisdictional one and considered the merits of Zurich’s argument.
Flahive, Ogden & Latson attorney Lynette Phillips represented Zurich American at the Division and before the trial court. FOL lawyers Jessica MacCarty and Robert Stokes represented the carrier on appeal.
FOLIO
