Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 117th District Court of Nueces County, Texas.
Chief Justice Contreras and Justices Perkes and Rodriguez
appellant Rebecca Gallardo appeals the trial court's
summary judgment in favor of appellee Insurance Company of
the State of Pennsylvania (ICSOP). By four issues, which we
address as three, Gallardo contends that the trial court
improperly granted ICSOP's combined motion for
no-evidence and traditional summary judgment.We affirm.
2, 2008, Gallardo sustained an on-the-job injury for which
she sought workers' compensation benefits. ICSOP was the
workers' compensation insurance carrier available through
Gallardo's employer. The Texas Department of Insurance,
Division of Worker's Compensation (Division), concluded
that Gallardo was not entitled to receive the workers'
compensation benefits she sought. In February 2011, Gallardo
filed suit in County Court at Law Number One of Nueces
County, Texas for judicial review of the Division's
decision that she was not entitled to first, second, third,
or fourth-quarter supplemental income benefits (SIBs).
Pursuant to a Rule 11 agreement, the parties settled
Gallardo's suit, agreeing that she was entitled to first
through third-quarter SIBs.
April 12, 2012, the trial court, in a separate cause, signed
a final judgment in accordance with the settlement agreement
providing that Gallardo was entitled to SIBs for the first,
second, and third quarters. However, the agreement, as
adopted by the final judgment, provided that Gallardo was not
entitled to SIBs for the fourth, fifth, sixth, seventh, and
eighth quarters. ICSOP paid the first, second, and
third-quarter SIBs to Gallardo. The parties executed a
proposed "DWC-24 Form" and submitted it to the
Division for review on May 10, 2012, which the Division
denied on May 15, 2012.
2012, ICSOP filed suit against Gallardo in the Court at Law
Number Two of Nueces County, Texas for conversion,
fraud-in-the inducement, and breach of the settlement
agreement, claiming that Gallardo refused to cooperate in
executing a new DWC-24 Form for submission to the Division.
ICSOP also sought specific performance of the settlement
agreement. Gallardo filed an answer and plea to the
jurisdiction, a counter-claim, and a motion for sanctions.
ICSOP filed a motion for traditional and no-evidence summary
judgment requesting specific performance of the settlement
agreement or the return of the settlement funds. The trial
court granted summary judgment and ordered specific
performance of the settlement agreement. The trial court
concluded that Gallardo (1) was entitled to SIBs for the
first, second, and third quarters; (2) was not entitled to
SIBs for the fourth, fifth, sixth, seventh, and eighth
quarters; (3) could not recover attorney fees in excess of
$12, 500; and (4) "shall cooperate with ICSOP in order
to ensure that all necessary paperwork, including [the DWC-24
Form] covering the fifth, sixth, seventh, and eighth
quarters, is timely submitted and approved" by the
Court, Gallardo appealed the trial court's summary
judgment in appellate cause number 13-14-00132-CV, and she
filed a petition for writ of mandamus or prohibition in
appellate cause number 13-14-00203-CV. See Gallardo v.
Ins. Co. of the State of Pa., No. 13-14-00132-CV, 2015
WL 730846, at *1 (Tex. App.-Corpus Christi- Edinburg Feb. 19,
2015, pet. denied) (mem. op.); In re Gallardo, No.
13-14-00203-CV, 2015 WL 730920, at *1 (Tex. App.-Corpus
Christi-Edinburg Feb. 19, 2015, orig. proceeding). We
affirmed the trial court's grant of ICSOP's motion
for summary judgment as modified by our decision in the
mandamus proceeding. See Gallardo, 2015 WL 730846 at
*1. In the mandamus proceeding, we concluded that the trial
court had jurisdiction to order Gallardo to cooperate by
presenting a DWC-24 Form to the Division. In re
Gallardo, 2015 WL 730920, at *1. Regarding whether
Gallardo was entitled to the fifth through eighth-quarter
SIBs, we concluded the trial court lacked jurisdiction
because Gallardo had not exhausted her administrative
remedies regarding her entitlement to those quarters and the
Division had not approved a benefit dispute agreement (BDA)
as to those quarters. See id. at *10. We
conditionally granted mandamus relief directing the trial
court to strike those portions of its order stating that
Gallardo was not entitled to the fifth through eighth-quarter
SIBs. Id. at 12. We denied all other relief
requested by Gallardo. See id.
in sum, we affirmed the trial court's summary judgment in
favor of ICSOP; we concluded that the trial court had
jurisdiction to order Gallardo to cooperate and present
another DWC-24 Form; and we concluded that the trial court
lacked jurisdiction to determine Gallardo's eligibility
to the fifth through eighth-quarter SIBs because she had not
exhausted her administrative remedies. See Gallardo,
2015 WL 730846, at *6; In re Gallardo, 2015 WL
730920, at *10. Finally, we concluded that the Rule 11
agreement required the parties to cooperate in presenting to
the Division a DWC-24 Form addressing Gallardo's fifth
through eighth-quarter SIBs and that the trial court's
order requiring Gallardo to cooperate did not affect the
Division's prior denial of the parties' executed
DWC-24 Form or direct the Division to approve a new DWC-24
Form the parties presented. In re Gallardo, 2015 WL
730920, at *8-10. We explained that a purported Rule 11
agreement existed that provided Gallardo was not entitled to
fifth through eighth-quarter SIBs because the Division had
not yet approved a BDA regarding SIBs for those quarters
meaning Gallardo had not exhausted her remedies. Id.
at *9-10. Citing Texas Mutual Insurance Co. v.
Ruttiger, among other cases, we noted in a parenthetical
that a plaintiff exhausts administrative remedies when the
Division approves the BDA. Id. at *8 (citing 381
S.W.3d 430, 441 (Tex. 2012)).
to our decisions, on August 9, 2013, Gallardo filed suit in
this cause claiming that the Division improperly found she is
not entitled to lifetime income benefits (LIBs) beginning on
the date of her injury and SIBs for the fifth through eighth
quarters. Gallardo stated that she "had exhausted her
administrative remedies and now [sought] judicial review
pertaining to her SIBs claims." ICSOP filed a general
March 31, 2017, ICSOP filed a motion for no-evidence and
traditional summary judgment arguing, among other things,
that Gallardo "failed to timely exhaust her
administrative remedies for quarters 8-10, thereby depriving
the Court of jurisdiction over same." The trial court
granted ICSOP's motion, and this appeal followed.
first and second issues, Gallardo contends the trial court
improperly granted summary judgment regarding her claim for
SIBs because (1) the trial court lacked jurisdiction, and ...