Bob et al v. Harsco Corporation, No. 4:2012cv01647 - Document 74 (S.D. Tex. 2014)
Court Description: OPINION on Reimbursement. (Signed by Judge Lynn N. Hughes) Parties notified. (ghassan, 4)
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UNmD STATES DISTRICT COURT Julia Bob, et SOUTHERN DISTRICT OF TEXAS al., § § § § § § § § § Plaintiffs, 'Versus Harsco Corporation, Defendant. Civil Action H-I2-I647 Opinion on Reimbursement I. In November of 2011, HerbertL Bob died when a gas compressor fell on him. His wife - Julia - and his daughters - Kimberly and Candace - sued Harsco Corporation, the manufacturer of the compressor. The parties settled for $950,000.Julia received onehalf; Kimberly and Candace each received one-quarter. 2. Through March 7, 2014, American Zurich Insurance Company has disbursed $98,480.99 of worker's compensation benefits toJulia. She continues to receive weekly payments in the amount of $787.00. 3· Zurich must be reimbursed for the $98,480.99 that it has paid to Julia because she has recovered from a third party. Zurich must subtract two adjustments from its I a) reimbursement: C a proportionate share of the cost of the lawsuit; and (b) no more than one-third of $98,480'99 for its share of the attorney's fees.' 4· Because Kimberly and Candace were not beneficiaries of Herbert's worker's compensation, Zurich may not be reimbursed from their portion of the settlement. I Tex. Labor Code § 417.002. , Tex. Labor Code § 4I7.003Ca). 5. To calculate Zurich's proportionate share of the costs to bring the lawsuit, divide the benefits paid by Julia's recovery.3 Zurich's Percentage ofJulia's Recovery: Benefits paid by Zurich: Divided by Julia's recovery: $98,480,90 $475,000.00 20-7 0 % Zurich's proportionate share: 6. The total cost of this lawsuit was $91,873.6+ One-half of that cost - $45,936.82 - is attributable to Julia, with the other one-half attributable to Kimberly and Candace. Zurich's Proportionate Share ofJulia's Costs: Julia's Expenses: $45,936.82 Multiplied by Zurich's share: 20.70% Zurich's share of the costs: 7. In Texas, an insurer must pay a reasonable attorney's fee that may not exceed one-third of its gross reimbursement amount. 4 Because Julia's lawyers represented Zurich's interests, it will pay them one-third. Zurich's Attorney's Fees: Benefits paid by Zurich: Divided by one-third: Zurich's share of attorney's fees: 3 Tex. Labor Code § 4I7.003(aH2). 4 Tex. Labor Code § 417.003 (aHl). 8. To calculate Zurich's reimbursement, subtract its share of the attorney's fees and costs from its gross recovery. Zurich's Lien Benefits paid: $9 8,4 80 .99 Less its share of attorney's fees: $3 2,826'99 $9,5 08 .9 2 Less its share of the costs: $5 6,145. 08 Zurich's total reimbursement: 9. Through March 7,2014, Zurich was owed a reimbursement of $56,145.08 . 10. In Texas, a recovery from a third party that exceeds what the carrier has disbursed in worker's compensation benefits is a credit against future benefits. 5 Zurich wants a credit against its weekly payments of $787.00. Zurich's Credit Julia's net recovery to date: $475,000.00 Less gross reimbursement to Zurich: $I 50,607.60 Less her attorney's fees: Less her 79.6% share of expenses: $3 6 ,4 2 7.9 0 $ 18 9,4 83.5 1 Total credit: II. $9 8 >4 80 .99 Through March 7, 2014, Zurich was owed a credit of $189,483.51 against its disbursements under the policy after March 7. Signed on AprillL, 2014, at Houston, Texas. Lynn N. Hughes United States DistrictJudge 5 Tex. Labor Code § 4I7.002(b).
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