Pacific Employers Ins. Co. v. Twelve Oaks Med. Ctr.
No. 03–08–00059–CV, 2010 WL 1511753 (Tex. App.-Austin Apr. 16, 2010, no pet.) (mem. op.)
On behalf of Pacific Employers Ins. Co., we successfully challenged the trial court’s judgment, which denied our motion for summary judgment and remanded Twelve Oaks’ medical dispute to the Division of Workers’ Compensation. The basis for the summary judgment motion was that Twelve Oaks did not timely perfect its suit for judicial review even though it filed suit within 30 days after the Division’s decision, because it did not serve Pacific with a copy of its petition until almost 13 months later. There is a majority opinion and a concurring and dissenting opinion. Both hold that Twelve Oaks failed to exercise due diligence in serving Pacific Employers. However, the majority held that the failure to timely serve Pacific is jurisdictional and therefore, dismissed Twelve Oaks’ suit, while the dissent said that the failure to timely serve should be an affirmative defense and therefore, she would have reversed the trial court and rendered judgment for Pacific Employers. Whether statutory filing deadlines are jurisdictional or mandatory is the subject of ongoing debate.
