Bob et al v. Harsco Corporation

Filing 74

OPINION on Reimbursement. (Signed by Judge Lynn N. Hughes) Parties notified. (ghassan, 4)

UNmD STATES DISTRICT COURT

Julia Bob,

et

SOUTHERN DISTRICT OF TEXAS

al.,

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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).