Robert Smith v. City of Lubbock and St. Paul Fire and Marine Insurance Company ( 2011 )

NO. 07-10-0466-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
SEPTEMBER 26, 2011
_____________________________
ROBERT SMITH,
Appellant
v.
CITY OF LUBBOCK AND ST. PAUL FIRE AND MARINE
INSURANCE COMPANY,
Appellees
_____________________________
FROM THE 237TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2008-542,012-A; HONORABLE LES HATCH, PRESIDING
_____________________________
Opinion
_____________________________
Before QUINN, C.J., PIRTLE, J., and BOYD, S.J.1
Robert Smith (Smith) appeals from summary judgments entered in favor of the
City of Lubbock (the City) and St. Paul Fire and Marine Insurance Company (St. Paul).
He sued both entities to recover damages allegedly encompassed by an
underinsured/uninsured auto liability policy acquired by the City from St. Paul. We
affirm in part and reverse in part.
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John T. Boyd, Senior Justice, sitting by assignment.
Summary Judgment Favoring St. Paul
Because of its ease in disposition, we first address whether St. Paul was entitled
to summary judgment. During oral argument, the insurer conceded that the decree
involving it necessitates reversal. We accept the concession, reverse that particular
decree without comment, and remand that specific aspect of the appeal to the trial court
for further proceedings.
Summary Judgment Favoring the City
Next, we address the allegation that the State’s workers’ compensation laws do
not bar an employee from suing his employer upon an underinsured/uninsured motorist
policy for damages suffered by the employee while working. The damages at issue
here arose when Smith was struck by an intoxicated driver while he performed his
duties for the City. The intoxicated driver, allegedly, was neither an employee of the
City nor sufficiently insured to recompense Smith’s injuries. So, he made claim upon an
underinsured motorist policy (the policy) acquired by his employer (the City) for its
employees, even though he already received workers’ compensation benefits. Denial of
the claim resulted in suit upon the policy.
According to Smith, the trial court should not have granted summary judgment
upon the City’s contention that the workers’ compensation laws barred additional
recovery against the City. Those statutes only precluded recovery for work-related
injuries arising from common law torts as opposed to a contract, he continues and, his
claim arose from an insurance contract. We overrule the issue.
For purposes of this appeal, the following facts are undisputed. First, the City
acquired the policy from St. Paul on behalf of its employees. Second, Smith was an
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employee of the City at all times pertinent. Third, the injuries he suffered at the hands
of the drunk driver arose within the course and scope of his employment. Fourth, the
City, or its insurer, paid Smith workers’ compensation benefits due to injuries related to
the accident. So too do we note the existence of a legislative enactment declaring:
Recovery of workers’ compensation benefits is the exclusive remedy of an
employee covered by workers’ compensation insurance coverage or a
legal beneficiary against the employer or an agent or employee of the
employer for the death of or a work-related injury sustained by the
employee.
TEX. LABOR CODE ANN. §408.001(a) (Vernon 2006). Whether the enactment
encompasses Smith’s contractual claim founded on the policy depends upon an
interpretation of that statute. Again, he asks us to read it as simply referring to tort
claims, not those arising from contract. We must disagree.
When interpreting a statute, our goal is to give effect to the legislature’s intent.
Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex. 1999); City
of Canyon v. Fehr, 121 S.W.3d 899, 905 (Tex. App.–Amarillo 2003, no pet.). In
garnering that intent, we first look to the plain and common meaning of the words
incorporated in the statute. Id. So too must we read the particular provision in context;
that is, we must read the statute as a whole. Marcus Cable Associates, L.P. v. Krohn,
90 S.W.3d 697, 706 (Tex. 2002). With that said, we turn to §408.001(a).
As can be seen from its text, the statute does not contain the words “tort” or
“negligence.” Indeed, it does not mention any particular type of chose-in-action. Given
that the common law choses-in-action of tort and contract have existed for more than a
century, it is safe to presume that our legislators knew of them when enacting
§408.001(a). Yet, they opted not to express them in the provision. Instead, they
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incorporated terms focusing upon a remedy for particular injuries, not a cause of action
through which remedies are generally sought. And, those terms were “workers’
compensation benefits” being the “exclusive remedy” for ”work-related injuries”
encountered by employees “covered by workers’ compensation insurance.” Moreover,
the parameters established by the word “exclusive” are clear and finite. Indeed, the
word is one of limitation and is commonly defined as “not admitting of something else,”
or “limited to the object or objects designated,” or “shutting out all others from a part or
share,” Exclusive Definition, DICTIONARY.COM, http://Dictionary, reference.
Com/browse/exclusive (last visited Sept. 15, 2011) or as meaning “sole, single.”
MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY, 436 (11th ed. 2003). And, most
importantly, none of those definitions suggest a vague or porous border allowing for the
quantum held within to be expanded. If a particular remedy (such as the provision of
workers’ compensation benefits) is to be “exclusive,” the latter term cannot be read as
allowing for any others, unless we are to ignore the aforementioned rules of statutory
construction.
In addition to those rules of construction, precedent also tends to strike against
Smith’s position. Admittedly, none issued by a Texas court are directly on point but they
nonetheless provide basis for refusing to read the exclusivity provision as
encompassing only tort claims. For instance, both we and the Texas Supreme Court
have stated that workers’ compensation benefits substitute not only for common law
rights and remedies but also statutory rights. Hartford Acc. & Indem. Co. v.
Christensen, 149 Tex. 79, 228 S.W.2d 135, 138-39 (1950); Prescott v. CSPH, Inc., 878
S.W.2d 692, 695 (Tex. App.–Amarillo 1994, writ denied) (stating that a worker waives
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his common-law and other statutory rights of action against an employer when the
employer is a subscriber to workers’ compensation). And, it cannot be doubted that an
action for breach of contract is a common law claim. See Tex. Mutual Ins. Co. v. Goetz
Insurors, Inc., 308 S.W.3d 485, 488 (Tex. App.–Amarillo 2010, pet. denied) (referring to
a common law breach of contract action). So, it would seem that Smith’s effort to
categorize his claim upon the policy as one for breached contract to trump the
exclusivity provision is of little value to him.
Simply put, if an employee suffers work-related injuries and seeks their redress
from an employer that subscribes to a workers’ compensation program, there is only
one way to obtain them. It is through that compensation program. It does not matter if
the employer provides those benefits from its own pocket or via a contract with a third
party insurer; once it provides them, statute bars the employee from forcing the
employer to redress the injuries through other means. “To rule otherwise would provide
the employee a backdoor way of recovering more from his employer than the exclusive
workers’ compensation remedy . . .,” especially when a portion of the recovery “would
come out of that employer’s pocket.” Bercy v. St. Martin, 37 S.3d 500, 403 (La. Ct. App.
2010, writ denied). And while there may not be authority directly on point from any
Texas court, our decision nonetheless comports with those rendered by a number of
other jurisdictions. See id.; Berger v. First State Ins. Co., 416 Mass. 652, 624 N.E.2d
947, 949 (1993); Bouley v. City of Norwich, 610 A.2d 1245, 1251-53 (Conn. 1992)
(deciding that the exclusivity provision prevented suit even though
underinsured/uninsured motorist insurance was mandated by statute);2 Gullet v. Brown,
2
This decision was superseded by statute in 1993.
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307 Ark. 385, 820 S.W.2d 457 (1991); Mitchell v. Philadelphia Electric Company, 281
Pa. Super. 452, 422 A.2d 556, 561-62 (1980).
Finally, our decision rests upon the facts, circumstances, and statutory language
before us. We do not decide whether the outcome would or should differ if 1) an
employer was mandated to buy underinsured/uninsured motorist coverage for its
employees, see William v. Newport News, 240 Va. 425, 397 S.E.2d 813, 816-17 (1990)
(noting that the acquisition of under/insured coverage was mandatory and holding that
workers’ compensation was not the sole remedy available); Heavens v. Laclede Gas
Co., 755 S.W.2d 331, 333 (Mo. App. 1988) (wherein statute mandated the purchase of
such coverage and the employer was self-insured); 2) the wording of the exclusivity
provision focused upon injury related to the “acts or omissions” of third parties rather
than a relationship between the injuries and employee’s work, see Christy v. Newark,
102 N.J. 598, 510 A.2d 22, 28-29 (1986) (wherein the statute read that “[i]f an injury or
death is compensable under this article, a person shall not be liable to anyone at
common law or otherwise on account of such injury or death for any act or omission
occurring while such person was in the same employ as the person injured or killed,
except for intentional wrong” and concluding that the provision simply encompasses
injury arising from one’s negligence), or 3) the entire sum due under the policy was
payable solely by an insurance company. See Heavens v. Laclede Gas Co., 755
S.W.2d at 332 (stating that “[i]f [the] employer had purchased insurance for the vehicle
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rather than self-insuring, the insurer would have paid under the uninsured motorist
provision of that policy”).3
As for Smith’s attempt to invoke the doctrines of waiver and estoppel, we say the
following. Those two theories exist to preserve rights, not to create independent causes
of action. Hruska v. First State Bank, 747 S.W.2d 783, 785 (Tex. 1988). They are
defensive and prevent the loss of existing rights; they do not create liability where it
does not otherwise exist. Id. Given this, neither waiver nor estoppel can grant Smith
any rights or relief in addition to that provided in §408.001(a) of the Labor Code.
We affirm that portion of the summary judgment denying Smith recovery against
the City, reverse that denying him recovery against St. Paul, and remand his dispute
against St. Paul for further proceedings.
Brian Quinn
Chief Justice
3
Whether payment of the initial $500,000 worth of damages likened to self-insurance or a
deductible, St. Paul was obliged to pay only damages exceeding that amount. The City was liable for the
first $500,000 of damages.
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