Texas Workers' Compensation Insurance Facility v. Aetna Casualty & Surety Company (No. 01-97-01021-CV) In an opinion issued June 17, 1999, the First Court of Appeals held that a workers' compensation carrier could pursue subrogation against uninsured/underinsured motorist benefits under a policy issued to the claimant's employer. In Facility v. Aetna, the claimant, Robert North, was injured on June 17, 1991 in an automobile collision in the course and scope of his employment with Econo Lube N Tune. The Texas Workers' Compensation Insurance Facility ("Facility"), Econo Lube's workers' compensation carrier paid $84,412.68 in benefits to or on behalf of Mr. North. Mr. North pursued a claim for uninsured/underinsured motorist benefits against Aetna, Econo Lube's carrier, and the Facility asserted its right of subrogation.
The First Court of Appeals, following Employers Casualty Company v. Dyess, held that the Facility could pursue subrogation against UIM benefits, and like the court in Dyess, the court criticized the Fifth Circuit Court of Appeals' decision in Bogart v. Twin City Fire Insurance Company for not following the Texas Workers' Compensation Act.
Many plaintiff's attorneys have tried to limit the impact of Dyess by arguing that it only applies to the "old" Act (pre-1991). The significance of Facility v. Aetna is that it involves subrogation under the "new" Act. Also, the First Court of Appeals recognized the workers' compensation carrier's right to recover pre-judgment and post judgment interest, as well as costs.