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Gallardo v. Insurance Company of State of Pennsylvania

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

June 20, 2019

REBECCA GALLARDO, Appellant,
v.
INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA, Appellee.

          On appeal from the 117th District Court of Nueces County, Texas.

          Before Chief Justice Contreras and Justices Perkes and Rodriguez [1]

          MEMORANDUM OPINION

          NELDA RODRIGUEZ, JUSTICE

         Pro se 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.[2]We affirm.

         I. Background

         On June 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.

         On 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.

         In July 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 Division.

         In our 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.

         Thus, 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)).

         Prior 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 denial.

         On 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.

         II. SIBs

         By her 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 ...


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