Puga, Felipe and Rebeca Puga, Individually and as Next Friends and Parents of Ryan Puga v. City of Harligen, Homero Saldivar and Elodia Canas ( 2000 )

NUMBER 13-99-786-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

FELIPE PUGA AND REBECA PUGA,

INDIVIDUALLY AND AS NEXT FRIENDS

AND PARENTS OF RYAN PUGA

, Appellants,

v.

CITY OF HARLINGEN AND HOMERO SALDIVAR

, Appellees.

___________________________________________________________________

On appeal from the 197th District Court of Cameron County, Texas.

___________________________________________________________________

O P I N I O N

Before Chief Justice Seerden and Justices Dorsey and Yañez

Opinion by Chief Justice Seerden

Felipe Puga and Rebeca Puga, individually and as next friends and parents of Ryan Puga, a minor, appeal a summary judgment rendered against them in favor of the City of Harlingen and Homero Saldivar.

Background

On or about November 23, 1996, Ryan Puga, a minor, was performing community service pursuant to a minor delinquency program administered by the defendant City of Harlingen. While performing the community service, Ryan Puga was struck by a motor vehicle and injured. Felipe Puga and Rebeca Puga, individually and as next friends and parents of Ryan Puga, brought suit against the City of Harlingen, Homero Saldivar, an employee of the City, and Elodia Canas⁽¹⁾, the driver of the vehicle that struck Puga. The City and Homero Saldivar filed a motion for summary judgment asserting that Puga's suit was barred by workers compensation, and alternatively, that Puga had accepted workers compensation benefits and had thus waived his right to a common law cause of action.

The trial court granted summary judgment in favor of these defendants without specifying the ground or grounds relied upon for its ruling. We will therefore uphold the summary judgment if at least one ground advanced in the motion survives review. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989).

Standard of Review

In a summary judgment, the movant has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true. Id. Every reasonable inference must be indulged in favor of the nonmovant, and any doubts must be resolved in favor of the nonmovant. Id.

When a defendant moves for summary judgment on its affirmative defense, it must prove each element of its defense as a matter of law, leaving no issues of material fact. See, e.g., Gross v. Kahanek, 3 S.W.3d 518, 519 (Tex. 1999). Defendants' contention that Puga's only remedies were under the workers compensation act is an affirmative defense. Brown Servs., Inc. v. Fairbrother, 776 S.W.2d 772, 775-76 (Tex.App.­Corpus Christi 1989, writ denied). Defendants were required to prove that the City had workers compensation insurance that covered Puga's claims. See Exxon Corp. v. Perez, 842 S.W.2d 629, 630-31 (Tex. 1992).

Summary Judgment

Defendants' motion for summary judgment was filed on August 13, 1999. On August 16, 1999, the court set the hearing on the motion for summary judgment for September 8, 1999. Plaintiffs filed their response to the motion on August 31, 1999. Defendants subsequently filed a reply to plaintiffs' response on September 2, 1999, attaching a revised or corrected affidavit. Defendants did not concomitantly move for a continuance of the summary judgment hearing date. Plaintiffs responded to this reply on September 7, 1999, raising an additional defense to the summary judgment. Defendants then filed a motion for leave to file a reply to plaintiffs' most recent response on September 17, 1999, responding to appellants' additional defense and including additional affidavits. The summary judgment was granted on November 3, 1999.

The record does not reflect that the court granted leave to file any of these pleadings beyond those which were "timely filed prior to the hearing." Affidavits, unfiled discovery, and other summary judgment evidence must be filed by the deadline that applies to the motion or response. Tex. R. Civ. P. 166a(c),(d). Thus, the motion and accompanying evidence must have been filed twenty-one days before the hearing, and the response and accompanying evidence must have been filed seven days before the hearing. Id. There is no deadline in rule 166a for a movant's reply to a response. Knapp v. Eppright, 783 S.W.2d 293, 296 (Tex.App.­Houston [14^th Dist.] 1989, no writ)(court considered reply filed three days before hearing).

Although Texas Rule of Civil Procedure 166a(c) permits the late filing of summary judgment proof, leave of court is required. Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996). If either the movant or the nonmovant files late summary judgment evidence or a late amendment to the evidence, and no order appears in the record granting leave to file, the evidence will not be considered as being before the court. Id. Similarly, if an amended response is filed after the deadline, and the record does not contain a ruling by the court, the appellate court will assume the response was not before the trial court. INA of Tex. v. Bryant, 686 S.W.2d 614, 615 (Tex. 1985).

Because the record does not reflect that the trial court granted leave to file the pleadings filed on September 2, 7, and 17, we assume that only defendant's motion for summary judgment and plaintiffs' response were before the trial court, and will review the judgment based solely on those pleadings.

Analysis

Section 504.012 of the Labor Code governs optional workers compensation coverages. See Acts 1993, 73^rd Leg., ch. 269, §1 (amended 1999)(current version at Tex. Lab. Code Ann. §504.012 (Vernon Supp. 2000)).⁽²⁾ This section provides that a political subdivision may cover volunteer fire fighters, police officers, emergency medical personnel, and "other volunteers that are specifically named." See Tex. Lab. Code Ann. §504.012(a). This section also provides that a political subdivision may cover a "child who is in a program established by the political subdivision to assist children in rendering personal services to a charitable or educational institution under Section 54.041(b), Family Code." See Tex. Lab. Code Ann. §504.012(c). Section 54.041(b) of the Family Code allows the juvenile court to order the child or a parent to make full or partial restitution to the victim of the offense for property damage, loss or personal injury.

In their motion for summary judgment, defendants argued that Ryan Puga was covered by workers compensation at the time of the incident, and therefore, the recovery of workers compensation benefits was his exclusive remedy. By affidavit, Marvin Hendrix, risk manager for the City of Harlingen, stated that:

At the time of Ryan Puga's alleged injury, specifically November 23^rd, 1996, the City was paying workers' compensation premiums on all individuals classified as volunteers based on "rate times minimum wage." Ryan Puga was performing community service for the City of Harlingen under Section 54.044 of the Texas Family Code and was covered under our Workers' Compensation policy which was in effect under Section 504.012 of the Labor Code.

Section 54.044 of the Texas Family Code requires that if the court places a child on probation under section 54.04(d), the court shall require as a condition of probation that the child work a specified number of hours at a community service project.

In response, plaintiffs argued that Hendrix's affidavit showed that the City did not establish a "program established by the political subdivision to assist children in rendering personal services to a charitable or educational institution under Section 54.041(b)," and therefore, Puga could not have been covered by workers compensation. Plaintiffs further argue that the language of the labor code indicates an intention that "volunteers" and "minors" be treated separately and distinctly for purposes of providing workers compensation insurance. Plaintiffs note that the workers compensation insurance policy at issue only references "volunteers" and does not reference minors or children.

The Agreement for Community Service executed by Puga does not specify whether Puga was performing community service as a condition of probation under section 54.044, or whether Puga was performing community service as a means to make restitution under section 54.041(b). However, the agreement recites that "This matter was present [sic] to the court to ascertain the appropriate manner by which the defendant shall discharge the fine(s) and costs assessed against him/her in the above-styled and numbered cause." Thus, it appears that Puga was performing community service for the purposes of making restitution. Thus, Hendrix's affidavit may be incorrect insofar as it recites that Puga was performing community service under section 54.044 regarding probation.

Nevertheless, Hendrix's affidavit and attached documentation shows that Puga was covered by workers compensation insurance. Hendrix's affidavit states that Puga was covered by workers compensation under section 504.012 of the Labor Code. The attached policy shows coverage for "inside" and "outside" volunteers, which "could include volunteers assigned to work off minor fines through community service depending on type of work assigned." Section 504.012 of the labor code allows a political subdivision to provide optional coverage for volunteers. Further evidence adduced by defendants shows that workers compensation benefits were in fact paid to Puga.

Because defendants have established the affirmative defense that workers compensation is Puga's sole remedy as a matter of law, summary judgment is proper. We therefore overrule plaintiffs' issues on appeal and affirm the trial court's order granting summary judgment.

ROBERT J. SEERDEN, Chief Justice

Do not publish

.

Tex. R. App. P. 47.3.

Opinion delivered and filed this

14th day of December, 2000.

1. Elodia Canas, driver of the vehicle that struck Puga, is a not a party to this appeal.

2. All further references to this section herein will be to the former version of the statute as applicable to the instant case.