TRANSCONTINENTAL INS. CO. v. CRUMP

f169 S.W.2d at 162; Staggs, 134 S.W.2d at 1030; Burnett, 105 S.W.2d at 202. In fact, we cannot conceive of causal connection analysis without consideration of cause in fact. The substantial factor language serves only to illustrate an essential aspect of causation to jurors, as we have noted:

The word "substantial" is used to denote the fact that the defendant's conduct has such an effect in producing the harm as to lead reasonable men to regard it as a cause, using that word in the popular sense, in which there always lurks the idea of responsibility, rather than in the so-called "philosophic sense," which includes every one of the great number of events without which any happening would not have occurred. Each of these events is a cause in the so-called "philosophic sense," yet the effect of many of them is so insignificant that no ordinary mind would think of them as causes.

Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 472 n. 1 (Tex. 1991) (quoting RESTATEMENT (SECOND) OF TORTS § 431 cmt. a (1965)); see also Borg-Warner Corp. v. Flores, 232 S.W.3d 765, 770 (Tex. 2007). In other words, for an act or event to rise to the level of cause in the legal sense, the act or event must be such that reasonable jurors would identify it as being actually responsible for the ultimate harm. The cause must be more than one of the countless ubiquitous and insignificant causes that in some remote sense may have contributed to a given effect as, for example, simply getting up in the morning. That the term substantial factor is given to this commonsense aspect of legal causation simply makes plain to jurors that more than causation in this indirect, "philosophic sense" is required. See Staggs, 134 S.W.2d at 1030 (recognizing that but-for language repeated something already included in the usual and ordinary meaning of "cause" and draws juror attention to the importance of an unbroken causal connection). It does not demand, nor even imply, a higher standard of legal causation beyond the ordinary sense of the concept.

Transcontinental argues that the omission of but-for language in the charge submitted by the trial court renders the definition legally incorrect. We agree. As we discussed in one workers' compensation case, "to say of a cause of an injury that it is one `but for which the injury would not have happened' is to repeat something already included in the usual and ordinary meaning of the word `cause.'" Id. (quoting Tex. Pac. Ry. Co. v. Short, 62 S.W.2d 995, 999 (Tex.Civ.App.-Eastland 1933, writ ref d)). However, the inclusion of but-for language in producing cause definitions has long been considered useful, serving "to direct the jury's attention to the importance of unbroken causal connection between the injury and the disability or death." Id.; see also Wichita County v. Hart, 917 S.W.2d 779, 783-84 (Tex. 1996) ("A trial court must submit explanatory instructions and definitions that will assist the jury in rendering a verdict."). We recognized this in Ledesma and, desiring to offer "practical help to a jury striving to make the often difficult causation determination," held that a producing cause definition that did not include the but-for component was "incomplete." 242 S.W.3d at 46. Indeed, we have often referred to producing cause and cause in fact synonymously with but-for causation. See, e.g., LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006) (per curiam); Marathon Carp. v. Pitzner, 106 S.W.3d 724, 727 (Tex. 2003) (per curiam); Hyundai Motor Co. v. Rodriguez, 995 S.W.2d 661, 667 (Tex. 1999). The producing cause definition submitted in this case lacked the but-for component. It, too, was incomplete, and therefore an erroneous statement of the law of producing cause. See Union Pac. R.R. Co. v. Williams, 85 S.W.3d 162, 166 (Tex. 2002).

B. Was the Trial Court's Definition of Producing Cause Harmful?

Having decided that the trial court's definition of producing cause was erroneous, we now consider' whether this error requires reversal. Transcontinental asserts that the trial court's omission of the but-for component of the producing cause definition was reversible error. We agree.

"A judgment will not be reversed for charge error unless the error was harmful because it probably caused the rendition of an improper verdict. . . ." Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 856 (Tex. 2009) (citing TEX.R.APP. P. 61.1). "Charge error is generally considered harmful if it relates to a contested, critical issue." Id. (citing Bel-Ton Elec. Serv., Inc. v. Pickle, 915 S.W.2d 480, 481 (Tex. 1996) (per curiam), and Siv. Bell Tel. Co. v. John Carlo Tex., Inc., 843 S.W.2d 470, 472 (Tex. 1992)). "To determine whether the instruction probably caused an improper judgment, we examine the entire record." Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 480 (Tex. 2001).

Daller, one of Crump's treating physicians and Crump's sole expert, testified:

Mr. Crump had had [sic] a renal transplant approximately 25 years prior, I believe. He also had what is known as compensated cirrhosis from hepatitis C. At the time that he experienced the injury, that injury caused a progression of his hepatic insufficiency, and because of his inability to fight off infections and also because of his overall medical condition, it caused a series of events that led to his death.

According to Daller, the site of the injury became infected, the infection caused Crump's already-weakened organs to fail, and his organ failure in turn caused his death. Further, on cross-examination he testified:

Q: It's your opinion that the cause of the infection was histoplasmosis but that but for the bruise the histoplasmosis would not have developed into a full-stage infection, right?

A: That is correct.

On the other hand, Transcontinental's expert, Hunt, testified that Crump died from the natural complications of being immunosuppressed for twenty-five years rather than from the May 9, 2000 injury:

Q. In your opinion, would the death have occurred without the May 9, 2000 injury ever taking place?

A. Yes.

Hunt testified on cross-examination, "Had [Crump] not had that contusion to his knee, he still would have had those other problems."

Q. So, you're saying that Mr. Crump would have been in there in Polly Ryon [Memorial Hospital] on January 23rd of 2001, dying of liver failure, kidney failure, aspiration of the stomach, his heart was giving out — I mean, his whole body was shutting down. You said yourself he was critically ill.

A: Yes, sir.

Transcontinental bore the burden of proving, by a preponderance of the evidence, the negative proposition that the May 2000 injury was not a producing cause of Crump's death. See TEX. LAB. CODE § 410.303; Morales v. Liberty Mut. Ins. Co., 241 S.W.3d 514, 516 (Tex. 2007) ("[T]he appealing party bears the burden of proof by a preponderance of the evidence. The factfinder may consider, but is not bound by, the appeals panel's decision. The method of review that [the Labor Code] provides is known as modified de novo review.") (citations omitted). The but-for aspect of causation was squarely at issue in this case, and the sole question before the jury was whether the May 2000 injury was a producing cause of Crump's death. Here, the charge error "relate[d] to a contested, critical issue" — indeed, the sole issue — that of causation. See Hawley, 284 S.W.3d at 856; see also Toennies, 47 S.W.3d at 480 ("An improper instruction is especially likely to cause an unfair trial when the trial is contested and the evidence sharply conflicting, as it was in the present case [when the trial court gave an incorrect causation standard]."); Tex. Dep't of Human Servs. v. Hinds, 904 S.W.2d 629, 637 (Tex. 1995) (finding harmful error where a jury instruction stated the standard of causation incorrectly and the evidence was "vigorously and convincingly disputed"); John Carlo Tex., Inc., 843 S.W.2d at 472 ("Virtually the entire factual dispute between the parties has been over whether Bell's conduct was justified. To ask the jury to resolve this dispute without a proper legal definition [of justification,] the essential legal issue[,] was reversible error."). Including the but for component in the definition would have assisted the jury in resolving the disputed expert testimony at the crux of the case and, more importantly, would have stated the law accurately. See Williams, 85 S.W.3d at 166. In these circumstances, the absence of a proper definition of producing cause probably resulted in an improper judgment and, as such, was reversible error. See Hinds, 904 S.W.2d at 637.

Prior to trial, Transcontinental objected to Crump's definition, the one ultimately accepted by the trial court, asserting it was not a correct statement under Texas law. Transcontinental tendered its own definition in writing, including a but for component: "that cause, which in a natural and continuous sequence, produces death and without which, the death would not have occurred." See TEX.R. CIV. P. 278 ("Failure to submit a definition or instruction shall not be deemed a ground for reversal of the judgment unless a substantially correct definition or instruction has been requested in writing and tendered by the party complaining of the judgment."). Because Transcontinental's definition included the critical but-for component, and was otherwise a correct statement of law, it was "substantially correct" and sufficed to preserve its complaint of charge error on appeal. See Hinds, 904 S.W.2d at 637-38 ("There should be but one test for determining if a party has preserved error in the jury charge, and that is whether the party made the trial court aware of the complaint, timely and plainly, and obtained a ruling.") (quoting State Dep't of Highways v. Payne, 838 S.W.2d 235, 241 (Tex. 1992)).

We hold that the definition of producing cause approved in Ledesma — a substantial factor in bringing about the injury or death and without which the injury or death would not have occurred — applies in workers' compensation cases. Because the definition submitted here lacked the but-for component, and because its omission in this case constitutes harmful error, we remand the case for new trial.

IV. Attorney's Fees

Transcontinental first argues that the trial court erred in denying it a jury trial on the amount of Crump's reasonable and necessary attorney's fees for which Transcontinental was statutorily liable, and second, in permitting Crump to recover attorney's fees incurred in pursuing those statutory attorney's fees. We address the first issue — whether a judge or jury decides attorney's fees under Texas Labor Code § 408.221(c) — to provide guidance for parties and trial courts. We leave the second question — whether fees can be awarded in the pursuit of fees — for another day.

Relying on this Court's precedent and the language of § 408.221, Transcontinental argues that the trial court erred when it refused to grant a jury trial and, instead, decided the disputed amount of Crump's attorney's fees for which Transcontinental was liable under § 408.221(c). Crump contends that the statute's plain language alone provides that the court, and not a jury, is to determine the amount of reasonable and necessary attorney's fees for which Transcontinental is liable. The court of appeals favored Crump's plain language argument and held that the trial court did not err in denying Transcontinental's request to submit the issue to a jury. 274 S.W.3d at 103. We hold that when a question of fact exists on the reasonableness and necessity of a claimant's attorney's fees under § 408.221(c), the carrier has a right to submit that question to a jury.

In construing another provision of the Workers' Compensation Act, we set out the scope of our inquiry:

The meaning of a statute is a legal question, which we review de novo to ascertain and give effect to the Legislature's intent. Where text is clear, text is determinative of that intent. This general rule applies unless enforcing the plain language of the statute as written would produce absurd results. Therefore, our practice when construing a statute is to recognize that the words the Legislature chooses should be the surest guide to legislative intent. Only when those words are ambiguous do we resort to rules of construction or extrinsic aids.

Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009) (citations, internal quotations, and italics omitted). We review de novo the trial court's denial of Transcontinental's request for a jury trial under subsection (c). See id.

We look first to the language of the statute. The relevant portions of § 408.221 read:

(a) An attorney's fee, including a contingency fee, for representing a claimant before the division or court under [the Texas Workers' Compensation Act] must be approved by the commissioner or court.

(b) Except as otherwise provided, an attorney's fee under this section is based on the attorney's time and expenses according to written evidence presented to the division or court. Except as provided by Subsection (c) . . ., the attorney's fee shall be paid from the claimant's recovery.

(c) An insurance carrier that seeks judicial review . . . of a final decision of the appeals panel regarding compensability or eligibility for, or the amount of, income or death benefits is liable for reasonable and necessary attorney's fees as provided by Subsection (d) incurred by the claimant as a result of the insurance carrier's appeal if the claimant prevails on an issue on which judicial review is sought by the insurance carrier. . . . If the carrier appeals multiple issues and the claimant prevails on some, but not all, of the issues appealed, the court shall apportion and award fees to the claimant's attorney only for the issues on which the claimant prevails. In making that apportionment, the court shall consider the factors prescribed by Subsection (d). . . .

(d) In approving an attorney's fee under this section, the commissioner or court shall consider:

(1) the time and labor required;

(2) the novelty and difficulty of the questions involved;

(3) the skill required to perform the legal services properly;

(4) the fee customarily charged in the locality for similar legal services;

(5) the amount involved in the controversy;

(6) the benefits to the claimant that the attorney is responsible for securing; and

(7) the experience and ability of the attorney performing the services.

. . . .

(i) Except as provided by Subsection (c) . . ., an attorney's fee may not exceed 25 percent of the claimant's recovery.

Subsection (c) is the focus of the parties' dispute, but because it is part of a single section of the Labor Code governing the award of attorney's fees, we construe it in that context. See Morales, 241 S.W.3d at 517 ("We . . . consider each provision in the context of the entire statute, not merely those portions that are in dispute."); Cont'l Cas. Ins. Co. v. Functional Restoration Assocs., 19 S.W.3d 393, 398 (Tex. 2000) ("Each provision must be construed in the context of the entire statute of which it is a part."); Bridge-stone/Firestone, Inc. v. Glyn-Jones, 878 S.W.2d 132, 133 (Tex. 1994) ("Only in the context of the remainder of the statute can the true meaning of a single provision be made clear.").

TEX. LAB. CODE § 408.221. We review the plain language of the statute as written to decide whether Crump's or Transcontinental's interpretation — judge or jury — is supported.

According to Crump, subsection (c)'s instruction that the court is to award apportioned fees means that the court alone determines the reasonable and necessary amount of fees — according to criteria given in subsection (d). This interpretation, Crump argues, comports with subsection (b)'s general rule that attorney's fees under § 408.221 are based on written evidence of time and expenses presented to the court, which would have no use for this information if it were not deciding the amount to award. Crump correctly notes that § 408.221 makes no mention of a jury.

Transcontinental focuses on the first words in subsection (b): "Except as otherwise provided." Id. § 408.221(b). It argues that subsection (c) represents an exception to the general rule set out in subsections (a) and (b), where a claimant's attorney's fees are paid out of the claimant's benefit recovery and a court decides those fees. Subsection (c) controls the situation where a claimant's attorney's fees are paid directly by the liable insurance carrier, and a court — or, according to Transcontinental, a jury if one is sought — decides the extent of the carrier's additional liability beyond the claimant's benefits award. Transcontinental points out that every reference to a court's action in § 408.221 is that of approval, except in sentence two of subsection (c), under which the court is to apportion and, after that apportionment is concluded, "award fees to the claimant's attorney only for the issues on which the claimant prevails." Id. § 408.221(c). Transcontinental correctly observes that the statute does not state explicitly that the court alone is to determine the amount of attorney's fees, nor does it expressly forbid a jury from deciding the matter.

The statute is silent on the critical judge-or-jury question. Both parties offer legitimate, reasonable interpretations of § 408.221 and subsection (c)'s role within it. Because both interpretations are reasonable as to their applicability here, we conclude that the statute is ambiguous. See In re Mo. Pac. R.R. Co., 998 S.W.2d 212, 217 (Tex. 1999) ("Beyond these preliminary observations, the statute is not entirely clear in all its particulars. The language of the statute could support more than one reasonable interpretation and therefore is ambiguous. Because it is ambiguous, we may turn to extratextual sources. . . ."). Because the plain language of the statute alone is unavailing, we look beyond it. See id.; see also TEX. GOV'T CODE § 311.023 ("In construing a statute, . . . a court may consider among other matters the . . . common law or former statutory provisions, including laws on the same or similar subjects. . . ."). Specifically, we are guided by prior decisions examining the issue of reasonable and necessary attorney's fees in the context of fee-shifting provisions in other statutory regimes and by the history of how § 408.221 has evolved over the years.

Section 408.221 provides two relevant possibilities in which an insurance carrier will pay a claimant's attorney's fees. The first is where the carrier pays the claimant's attorney's fees for representation before the Division of Workers' Compensation and some court proceedings, but the fees are subtracted from the claimant's recovery. TEX. LAB. CODE § 408.221 (a)-(b). Because, in effect, the claimant pays in this situation, the claimant's attorney's fees are limited to 25% of the claimant's recovery. Id. § 408.221(1). The trial court must approve these fees, id. § 408.221(a), and must consider several factors in doing so, id. § 408.221(d). The insurance carrier can only be said to pay these fees in the technical sense that it drafts a separate check for the attorney's fees, payable directly to the claimant's attorney. Id. § 408.221(h). In reviewing fees awarded in this situation, we have "held that the amount of the attorney's fees to be allowed in compensation cases is a matter for the trial court to determine without the aid of a jury, and the amount of the recovery is within its discretion." Tex. Employers Ins. Ass'n v. Motley, 491 S.W.2d 395, 397 (Tex. 1973) (citing Tex. Employers Ins. Ass'n v. Hatton, 152 Tex. 199, 255 S.W.2d 848, 849 (1953) ("The amount of attorney's fees to be allowed in a compensation case is exclusively for the court and not the jury, and any such [contingency-fee] contract was made subject to the approval by the court. The court in his discretion could award a lesser amount.")). Crump cites Motley and Hatton as dispositive here. But, as discussed below, those cases do not address subsection (c), which was not enacted until decades later.

Attorney's fees resulting from appeals of an award of supplemental income benefits are also addressed in § 408.221, and are not under consideration here. See TEX. LAB. CODE § 408.221(b), (c), (i); see also id. § 408.147(c) (mandating payment of employee's attorney's fees if a carrier unsuccessfully disputes a supplemental income benefits award).

Fee awards for representing a claimant before the Division of Workers' Compensation — not at issue here — are set forth in the Texas Administrative Code. See 28 TEX. ADMIN CODE § 152.1.

The second possibility is at issue in this case. Here, the insurance carrier pays the claimant's "reasonable and necessary attorney's fees" for representing the claimant on judicial review in the courts when the carrier is unsuccessful on an issue it appealed from the Division of Workers' Compensation. TEX. LAB. CODE § 408.221(c). These fees are not subtracted from the claimant's recovery, but are paid by the carrier on top of the claimant's benefits award. See id. § 408.221(b)-(c). In this situation, the claimant's attorney's fees are not limited to 25% of the claimant's recovery, but only by reasonableness and necessity. See id. § 408.221 ©, (I). This fee-shifting provision in § 408.221 did not exist until 2001. Prior to 2001, the only attorney's fee award mechanism was the one in subsection (b), described in the paragraph above, where the claimant always pays his own attorney's fees regardless of the outcome of the carrier's appeal. For this reason, Motley and Hatton do not control in this case — they addressed this other statutory scheme, and could not have contemplated the fee-shifting mechanism presented in subsection (c).

See Act of May 25, 2001, 77th Leg., R.S., ch. 1456, § 8.01, 2001 Tex. Gen. Laws 5167, 5189 (codified at TEX. LAB. CODE § 408.221).

See generally Act of Dec. 13, 1989, 71st Leg., 2d C.S., ch. 1, § 4.09, 1989 Tex. Gen. Laws 1, 34-35 (embodying what is now codified in § 408.221 as it existed prior to the 2001 amendment adding subsection (c)).

While we have not previously examined the fee-shifting provision in subsection (c), we have discussed similar fee-shifting provisions in other cases. "In general, the reasonableness of statutory attorney's fees is a jury question." City of Garland v. Dallas Morning News, 22 S.W.3d 351, 367 (Tex. 2000). In City of Garland, we considered the fees available to a substantially prevailing party under the Texas Public Information Act. Id. at 367-68. The Act provided:

(a) In an action brought under Section 552.321 [suit for writ of mandamus under the Act] . . ., the court may assess costs of litigation and reasonable attorney fees incurred by a plaintiff or defendant who substantially prevails.

(b) In exercising its discretion under this section, the court shall consider whether the conduct of the governmental body had a reasonable basis in law and whether the litigation was brought in good faith.

Id. at 367 (quoting the former version of TEX. GOV'T CODE § 552.323). We reasoned that, from the plain language of the statute, "the trial judge decides whether to award attorney's fees under the Act." Id. (emphasis added). But we immediately noted that "section 552.323 does not dictate how to determine the attorney's fees amount, except that the award must be `reasonable.' In general, the reasonableness of statutory attorney's fees is a jury question." Id. (emphasis added, citation omitted).

As support for this "general" proposition, we cited Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998), which involved attorney's fee awards under the Declaratory Judgment Act. Id. In any proceeding under the Act, "the court may award costs and reasonable and necessary attorney's fees as are equitable and just." Bocquet, 972 S.W.2d at 20 (quoting TEX. CIV. PRAC. REM. CODE § 37.009). We had to determine whether a judge or jury was to decide the amount of fees in order to answer another question: "[B]y what standard is such an award of attorney fees to be reviewed on appeal"? Id. Because the Act read "may," the trial court had discretion to decide whether to award fees at all. Id. We recognized that the Act limited this discretion in four ways: reasonableness, necessity, equity, and justice. Id. at 21. Each of those terms prescribed whether a judge or jury was to decide them. Id. Generally, reasonableness was a fact question for the jury's determination, as was necessity. Id. On the other hand, equity was within the trial court's discretion, as was justice. Id. Our examination of the Act's language led us to conclude:

Therefore, in reviewing an attorney fee award under the Act, the court of appeals must determine whether the trial court abused its discretion by awarding fees when there was [legally or factually] insufficient evidence that the fees were reasonable and necessary, or when the award was inequitable or unjust. Unreasonable fees cannot be awarded, even if the court believed them just, but the court may conclude that it is not equitable or just to award even reasonable and necessary fees. This multi-faceted review involving both evidentiary and discretionary matters is required by the language of the Act.

Id. In concluding that reasonableness and necessity of attorney's fees were matters of fact committed to a jury, we also noted that there are "factors prescribed by law which guide the determination of whether attorney fees are reasonable and necessary." Id. (citing Arthur Andersen Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997) (listing factors "a factfinder should consider when determining the reasonableness of a fee")).

The principles established for construing statutory fee-shifting provisions in City of Garland and Bocquet assist the interpretation of § 408.221(c) of the Texas Labor Code. Crump has not pointed us to a reason to exempt § 408.221 from the general rule announced in those cases: "[T]he reasonableness of statutory attorney's fees is a jury question." City of Garland, 22 S.W.3d at 367. Nor do we see language in § 408.221 that distinguishes it from the language of the statutory regimes to which we applied the general rule in those cases. Applying that general rule here, we conclude that the carrier is entitled to submit the issue of the reasonableness and necessity of a claimant's attorney's fees, where disputed, to a jury, which will consider subsection (d)'s factors. See TEX. LAB. CODE § 408.221(c), (d). The next step depends on whether the claimant totally or partially prevails on the issues appealed by the insurance carrier. If the claimant prevails only on some issues, then after the jury's verdict is announced the court will apportion the fees per the factors in subsection (d), and will award reasonable and necessary attorney's fees to the claimant's attorney only for those issues on which the claimant prevails. See TEX. LAB. CODE § 408.221(c). If the claimant totally prevails, the jury's verdict as to the fee amount for which the carrier is liable is then subject only to the court's approval based on the factors in subsection (d). Id. § 408.221(a), (d); see also Bocquet,

972 S.W.2d at 21 ("Unreasonable fees cannot be awarded. . . ."). Regardless of whether the claimant partially or totally prevails, the jury's verdict as to the fee amount "must be approved by the . . . court." TEX. LAB. CODE § 408.221(a). When a claimant pays his attorney's fees out of his benefits recovery, the amount approved by the court is solely within its discretion based on the attorney's time and expenses according to written evidence presented to the court and according to subsection (d)'s factors. See id. § 408.221(a), (b), (d); Hatton, 255 S.W.2d at 849. This interpretation resolves § 408.221's ambiguity while respecting its pre and post-2001 award mechanisms and, at the same time, respects our precedent on the reasonableness and necessity of statutory attorney's fees.

Thus, we hold that an insurance carrier is entitled to have a jury determine the disputed amount of reasonable and necessary attorney's fees for which it is liable under § 408.221(c).

V. Conclusion

We hold that: (1) the treating physician's opinion is based on a reliable foundation and, therefore, legally sufficient evidence supports the jury's verdict; (2) the trial court's omission of the but-for component in the jury charge constitutes reversible error; and (3) an insurance carrier is entitled to have a jury determine the disputed amount of reasonable and necessary attorney's fees for which it is liable. We reverse the court of appeals' judgment and remand the case to the trial court for new trial.

Justice JOHNSON filed a concurring opinion, in which Justice LEHRMANN joined.

Justice GUZMAN did not participate in the decision.