543 S.W.3d 288
Tex. App.2017Background
- On a commercial construction site, Skanska was general contractor; Tyler Lee (Skanska superintendent) lost his leg after a Berkel crane boom collapsed while Berkel crew attempted to unstick a 130‑foot auger and hoist the leads. Lee received workers’ compensation benefits and sued Berkel (subcontractor) for negligence, gross negligence, and intentional injury; jury awarded >$35M actual + $8.5M exemplary damages.
- Berkel enrolled in Skanska’s contractor‑controlled insurance program (CCIP); Skanska was the statutory employer for workers’ compensation purposes, making Berkel a statutory co‑employee under Tex. Lab. Code §406.123.
- Trial court denied JNOV and submitted jury questions that asked (1) whether a Berkel employee believed an injury was substantially certain to result from his conduct and (2) whether that actor was a vice principal/manager of Berkel.
- On appeal the panel assessed whether the Workers’ Compensation Act’s exclusive‑remedy bars Lee’s common‑law recovery and whether the intentional‑injury exception applies given the jury’s findings.
- The court held Berkel could assert the exclusive‑remedy defense as a statutory co‑employee, but analyzed whether the intentional‑injury exception was properly submitted and supported by evidence; it found charge error on specificity of the intent question and concluded evidence was legally insufficient on the correct standard, but remanded in the interest of justice for further development under the clarified test.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Workers’ Comp exclusive‑remedy bars Lee’s common‑law claims | Lee: intentional‑injury exception allows common‑law recovery | Berkel: as statutory co‑employee under CCIP, exclusive remedy bars negligence/gross negligence claims | Held: Berkel may assert exclusive remedy as statutory co‑employee; negligence/gross negligence claims barred absent valid intentional‑injury exception |
| Whether a corporation can be liable for agent’s intentional tort and which agents qualify | Lee: liability may be imputed for vice principal/manager (Miller) | Berkel: corporate liability should be limited to alter‑ego/top executives | Held: Court adopts vice‑principal test (corporate acts through vice principals); submission of Question 3 was proper |
| Whether the jury question on intent (substantial certainty) was legally sufficient | Lee: jury found an employee knew injury was substantially certain (Question 2) | Berkel: question was defective because it asked about an unspecified injury rather than injury to Lee specifically | Held: Question 2 was legally erroneous — intentional‑injury exception requires knowledge that specific consequences (to a particular victim or a small, localized class) were substantially certain |
| Whether evidence legally sufficed to prove substantial certainty to injure Lee (or a small localized class) | Lee: Miller’s conduct created a zone of danger; collapse made injury substantially certain to someone nearby | Berkel: evidence at most shows foreseeability/recklessness, not knowledge of injury to Lee or a small localized class | Held: Evidence insufficient to show Miller knew that a particular victim (Lee) or small localized class in the fall path would be injured; only foreseeability/recklessness established; but case remanded for further development under clarified standard |
Key Cases Cited
- HCBeck, Ltd. v. Rice, 284 S.W.3d 349 (Tex. 2009) (workers’ compensation exclusivity and employer immunity)
- Middleton v. Texas Power & Light Co., 185 S.W. 556 (Tex. 1916) (court‑made intentional‑injury exception to exclusivity)
- Medina v. Herrera, 927 S.W.2d 597 (Tex. 1996) (intentional‑injury exception survives legislative changes)
- Reed Tool Co. v. Copelin, 689 S.W.2d 404 (Tex. 1985) (definition of intent and requirement of specific‑consequence knowledge)
- GTE Sw., Inc. v. Bruce, 998 S.W.2d 605 (Tex. 1999) (vice‑principal conduct can be imputed to corporation)
- TIC Energy & Chem., Inc. v. Martin, 498 S.W.3d 68 (Tex. 2016) (statutory co‑employee status can shield subcontractor under exclusivity)
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (legal sufficiency standard of review)
- City of San Antonio v. Pollock, 284 S.W.3d 809 (Tex. 2009) (substantial‑certainty requires consequence be necessarily incident or consequential result)