Opinion
No. 10-02-00206-CV.
Opinion delivered and filed March 10, 2004.
Appeal from the 74th District Court, McLennan County, Texas, Trial Court # 2000-398-3.
Affirmed.
Loren R. Smith, Kelly Smith, L.L.P., Houston, TX, for appellant/relator.
Michael L. Scanes, Naman, Howell, Smith Lee, P.C., Waco, TX, and Keith Cameron, Naman, Howell, Smith Lee, P.C., Austin, TX, for appellee/respondent.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
This appeal presents a question of law.
Bessie Williams was injured in an automobile collision while traveling in connection with her employment with McLennan Community College (MCC). We do not know who was driving the other vehicle, which hit the back of Williams's vehicle. MCC paid workers' compensation benefits to Williams and now wants to exercise subrogation rights against the uninsured/underinsured motorist (UIM) provision in her insurance policy issued by State Farm Mutual Automobile Insurance Company (State Farm).
MCC sued State Farm in the district court in McLennan County. After both parties filed motions for summary judgment, the court granted State Farm's motion and rendered a take-nothing judgment in its favor. MCC appealed.
We agree with the decision of the San Antonio Court of Appeals in Liberty Mut. v. Kinser, 82 S.W.3d 71, 77-9 (Tex. App.-San Antonio 2002, pet. withdrawn) ("A worker's compensation carrier does not have a subrogation right to benefits paid an injured employee under the employee's UIM coverage."). Relying on that decision, we overrule MCC's issue and affirm the judgment.
We have come to a fork in the road. The issue we must decide in this case is whether we will join the majority of the cases (three cases from two courts of appeal) that have gone down this road before, or will we follow the road with a single court, whose only case on the issue has a subsequent history of dubious value.
Employers Casualty Co. v. Dyess, 957 S.W.2d 884 (Tex. App.-Amarillo 1997, pet. denied); Texas Workers' Compensation Insurance Facility v. Aetna Casualty and Surety Corp., 994 S.W.2d 923 (Tex. App.-Houston [1st Dist.] 1999, no pet.); Texas Workers' Compensation Insurance Fund v. Knight, 61 S.W.3d 91 (Tex. App.-Amarillo 2001, no pet.).
Liberty Mutual v. Kinser, 82 S.W.3d 71 (Tex. App.-San Antonio 2002, pet. withdrawn). In an unpublished opinion, the El Paso Court of Appeals also distinguishes the application of Dyess and its progeny but solely on the basis that the uninsured motorist coverage was purchased by the employer, not the employee as was the fact pattern in its case. Casualty Reciprocal Exchange v. Demock, No. 08-00-00206-CV, 2002 WL 244821 (Tex. App.-El Paso February 21, 2002, no pet.) (not designated for publication). Liberty Mutual acknowledged Casualty but expressly denied reliance on the decision as authority. Liberty Mutual, 82 S.W.3d at 79, n. 1.
I would take the more frequently traveled road and follow the majority of published decisions, not just because there are more of them, but also because they have the better reasoned analysis. There is no need for me to repeat that analysis here. I recognize that in life, it is frequently refreshing to get off the interstate highway and tour scenic back roads. That is fine for automobile travel. But this is not automobile travel. This is the law. We should use our published decisions to bring stability and predictability to the law. It may not be glamorous, innovative, or novel, but there is comfort for the litigant, and the trial court judge, in knowing that the law will be the same if the case is tried and appealed to the Tenth Court of Appeals, as it will be if it is tried and appealed to the Seventh Court of Appeals or the First Court of Appeals, or, if they choose to follow the mainstream, any of the courts of appeals that have not yet decided this issue for their district.
Without discussion of a compelling reason to do so, the majority chooses to take the road less traveled. I respectfully dissent.
My apologies to Robert Frost for the crude paraphrase of his mighty work, The Road Not Taken.