Court of Appeals of Texas, Twelfth District, Tyler
IN RE: OLD REPUBLIC RISK MANAGEMENT, OLD REPUBLIC INSURANCE COMPANY, THORNTON, BIECHLIN, REYNOLDS & GUERRA, L.C., TIMOTHY K. SINGLEY AND DANA M. GANNON, RELATORS
consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
Old Republic Risk Management, Old Republic Insurance Company,
Thornton, Biechlin, Reynolds, and Guerra, L.C., Timothy K.
Singley, and Dana M. Gannon, filed this original proceeding
to challenge Respondent's denial of their plea to the
jurisdiction and motion to dismiss. We conditionally grant the
January 22, 2018, Debra Morris, Individually and as
representative of the Estate of Kenneth W. Morris, Ashley
Bialowas f/k/a Ashley Morris, Amanda Morris Wright, Jimmy
Williams, Rebecca Williams, Orlando Ordaz, and Roy
McCollough, the Real Parties in Interest (RPIs), sued
Relators for fraudulent lien, declaratory judgment, insurance
code violations, fraud, independent fraudulent acts by
lawyer/law firm, and conspiracy to assert fraudulent lien.
According to the petition, a fire and explosion occurred at
the Georgia-Pacific plywood mill in Corrigan, Texas on April
26, 2014. The explosion injured several employees and
resulted in at least one fatality. Old Republic provided
workers' compensation insurance coverage to
Georgia-Pacific and paid benefits to the RPIs. The RPIs also
filed a personal injury lawsuit against certain third
parties. In their petition against Old Republic, the RPIs
alleged that Old Republic sent written notice claiming a lien
against the third-party claims based on medical, and wage
benefits paid by Old Republic and related to the RPIs'
injuries. The RPIs settled with two of the third parties and
proceeded to a jury trial in federal court as to the
remaining third parties. The federal court denied Old
Republic's motion to intervene.
September 28, 2018, Relators filed a plea to the jurisdiction
and motion to dismiss the RPIs' lawsuit against them for
lack of subject matter jurisdiction. They alleged that the
RPIs' claims arose from Old Republic's investigation,
handling, or settlement of workers' compensation
benefits, and they had not exhausted their administrative
remedies under the Texas Workers Compensation Act (the Act).
According to Relators, the Division of Workers Compensation
(DWC) maintained exclusive jurisdiction to hear claims
alleged in the RPIs' lawsuit. Relators sought dismissal
of the RPIs' claims for fraudulent lien, violations of
insurance code Section 541.061, fraud, independent fraudulent
acts by lawyer/law firm, and conspiracy to assert fraudulent
lien, leaving only the declaratory judgment claim.
letter to the parties, Respondent denied the plea to the
jurisdiction and motion to dismiss. Respondent's letter
states, in pertinent part, as follows:
At the time of the motion hearing on February 25th, I
announced an inclination to deny the Plea and Motion in the
absence of: 1) case authority dealing solely with a
subrogation lien dispute without suspension of [workers'
compensation] benefits; 2) a specific administrative
violation as to subrogation liens in Chapter 415; or 3) [an]
agency ruling /appeals decision pertaining to subrogation
liens pursuant to Chapter 415. Having found none, I make this
ruling although I would not be surprised if appellate courts
differ with my decision on the basis of an intended
"pervasive regulatory scheme" of the Labor Code for
disposition by the [DWC] on everything workers'
March 18, Respondent signed an order denying the plea to the
jurisdiction and motion to dismiss. This proceeding followed.
is an extraordinary remedy. In re Sw. Bell Tel. Co.,
L.P., 235 S.W.3d 619, 623 (Tex. 2007) (orig.
proceeding). A writ of mandamus will issue only when the
relator has no adequate remedy by appeal and the trial court
committed a clear abuse of discretion. In re Cerberus
Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005)
(orig. proceeding). The relator has the burden of
establishing both prerequisites. In re Fitzgerald,
429 S.W.3d 886, 891 (Tex. App.-Tyler 2014, orig.
proceeding.). To prevent disruption of the orderly processes
of government, the denial of a plea to the jurisdiction for
failure to exhaust administrative remedies is reviewable by
mandamus. See In re Liberty Mut. Fire Ins. Co., 295
S.W.3d 327, 328 (Tex. 2009) (per curiam, orig. proceeding);
see also In re Tex. Mut. Ins. Co., 360 S.W.3d 588,
592 (Tex. App.-Austin 2011, orig. proceeding).
contend that Respondent abused his discretion by denying
their plea to the jurisdiction and motion to dismiss because
the RPIs' claims are within the DWC's exclusive
jurisdiction and the RPIs failed to exhaust their
of Review and Applicable Law
court abuses its discretion when it reaches a decision so
arbitrary and unreasonable as to amount to a clear and
prejudicial error of law or if it clearly fails to correctly
analyze or apply the law. Cerberus Capital, 164
S.W.3d at 382. This standard has different applications in
different circumstances. Walker v. Packer, 827
S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). When
reviewing the trial court's resolution of factual issues
or matters committed to its discretion, we may not substitute
our judgment for that of the trial court. Id. The
relator must show that the trial court could reasonably have
reached only one conclusion. Id. at 840. Our review
of the trial court's determination of the ...