International Elevator Co. v. Garcia

ORDER PER CURIAM. This is an appeal from an order overruling the special appearance of appellant, International Elevator Company, Inc. (International Elevator). This case was set [421] for submission and oral argument on February 11, 2002. On January 24, 2002, we issued an order canceling submission and oral argument, ordered appellees, Samuel Garcia Sr. and Maria Garcia, to file a response to our order, and allowed appellant to file a response, if necessary. Reliance Insurance Company (Reliance), had intervened in this case as a subrogated workers’ compensation insurer. The trial court ordered a stay until April 5, 2002, because the Texas Commissioner of Insurance declared Rebanee an “impaired insurer” under article 21.28 of the Texas Insurance Code. See Tex. Ins.Code Ann. art. 21.28-C, § 17 (Vernon Supp.2002). Appel-lees did not oppose the stay requested by appellant. The Property and Casualty Insurance Guaranty Act requires a stay of proceedings whenever an insurance company that is a party to the proceedings or obbgated to defend a party to the proceedings has been determined to be impaired. See Tex. Ins.Code Ann. art. 21.28-C, § 17 (Vernon Supp.2002); Gould v. Sea Link Helicopters, Inc., 982 S.W.2d 29, 30 (Tex.App.—Houston [1st Dist.] 1998, order). Section 17 of article 21.28-C provides in pertinent part: All proceedings in which an impaired insurer is a party or is obbgated to defend a party in any court in this state, except proceedings directly related to the receivership or instituted by the receiver, shall be stayed for six months and any additional time thereafter as may be determined by the court from the date of the designation of impairment or an ancihary proceeding is instituted in the state, whichever is later, to permit proper defense by the receiver or the association of all pending causes of action. A deadline imposed under the Texas Rules of Civil Procedure or the Texas Rules of Appellate Procedure is tobed during the stay. Tex. Ins.Code Ann. art. 21.28-C, § 17 (Vernon Supp.2002). The Insurance Code clearly mandates an automatic six-month stay from the date the Texas Commissioner of Insurance designates Rebanee an “impaired insurer.” See Tex. Ins.Code Ann. art. 21.28-C, § 17 (Vernon Supp.2002); Builders Transport, Inc. v. Grice-Smith, 63 S.W.3d 822 (Tex.App.—Waco 2001, no pet.). The only issue is whether Rebanee is a “party or is obb-gated to defend a party,” under the statute. Tex. Ins.Code Ann. art. 21.28-C, § 17 (Vernon Supp.2002). Subrogation is the right of one who has paid an obbgation, which another should have paid, to be indemnified by the other. Texas Ass’n of School Boards, Inc. v. Ward, 18 S.W.3d 256, 258 (Tex.App.—Waco 2000, no pet.). In this case, Rebanee is subrogated to the rights of appebees as the workers’ compensation provider for ap-pebant under section 417.001 of the Texas Labor Code. See Tex. Labor Code Ann. § 417.001 (Vernon Supp.2002). The statute reads in pertinent part: If a benefit is claimed by an injured employee or a legal beneficiary of the employee, the insurance carrier is subro-gated to the rights of the injured employee and may enforce the habihty of the third party in the name of the injured employee or legal beneficiary. Id. Because Rebanee is a subrogated entity that has intervened in the suit, we hold that Rebanee is a party to the suit under article 21.28-C of the Insurance Code. See Tex. Ins.Code Ann. art. 21.28-C, § 17 (Vernon Supp.2002). Rebanee asserted its right as a party in the trial court, and, as such, is a party to the suit. Accordingly, the Court orders as fobows: [422] 1. The appeal is stayed until April 5, 2002. 2. If the stay is not extended beyond April 5, 2002, the Court will set the case for submission. International Elevator shall notify the Court immediately if the stay is extended. 3. To the extent any relief requested in motions pending before the Court in this appeal is not granted by this order, the Court denies relief. It is so ORDERED.