549 S.W.3d 314
Tex. App.2018Background
- Mann, a foreman for Berry Contracting (Bay), was struck crossing a road near a Valero refinery while on-site; he and his wife sued Bay and co-employee Alvarez in personal injury.
- Valero maintained a ROCIP (rolling owner-controlled insurance program) that purportedly covered contractors and their employees at the refinery; Bay also had a standard workers’ compensation policy that excluded refinery work.
- Both carriers denied coverage: Bay’s carrier said injury was at refinery (covered under ROCIP); ROCIP carrier said Mann was not in course-and-scope (not compensable).
- Bay sought benefits from both carriers and filed before the Division; both carriers denied; Bay asserted the Labor Code exclusive-remedy defense to bar the Manns’ tort suit.
- Trial court denied Bay’s motion for summary judgment and granted the Manns’ partial summary judgment, striking Bay’s exclusive-remedy defense; Bay obtained permissive appeal on four questions concerning employer status, agency/estoppel, Labor Code §408.001(d), and course-and-scope.
- Court of Appeals reversed: found the Division did not have exclusive jurisdiction over the tort suit, sustained Bay’s issues on the ROCIP employer question and course-and-scope, rejected agency/estoppel and §408.001(d) arguments, and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument (Mann) | Defendant's Argument (Bay) | Held |
|---|---|---|---|
| 1. Was Bay an "employer" under ROCIP / §406.123? | No written agreement exists making Valero the statutory employer; Bay therefore not statutory employer. | ROCIP coverage and documents (policy, Valero manual, Alliance Services Agreement affidavit) create at least a fact issue that a written agreement exists, making Valero the general contractor/statutory employer under §406.123. | Existence of a written agreement is a fact issue — Bay created fact question; trial summary judgment for Mann cannot be affirmed on this ground. |
| 2. Do agency or quasi-estoppel bind Bay to carrier denials, barring exclusive-remedy defense? | Yes — insurer’s denial of coverage binds Bay, preventing Bay from asserting exclusive-remedy. | No — insurer’s denial does not bind the employer; Port Elevator-Brownsville controls. | Rejected plaintiff’s agency/estoppel argument; employer may still assert exclusive-remedy despite insurer denial. |
| 3. Does §408.001(d) preclude Bay from asserting exclusive-remedy because carrier denied coverage? | Yes — plaintiff reads statute to strip employer of defense when carrier denies coverage except for enumerated exceptions. | No — §408.001(d) preserves employer’s exclusive-remedy in certain noncompensable scenarios; it does not strip the defense when a carrier denies coverage for other reasons. | §408.001(d) does not bar Bay from asserting exclusive-remedy here. |
| 4. Was Mann in the course-and-scope of employment when injured? | Mann was going to his truck to get out of rain (personal detour) and thus outside course-and-scope. | Multiple versions of activity (gathering water, prepping safety meeting, inspecting excavation) tie Mann’s conduct to employer business; personal-comfort doctrine also covers seeking shelter from rain. | Summary judgment for Mann on course-and-scope was improper; factual disputes and personal-comfort doctrine preclude disposing this element as a matter of law. |
Key Cases Cited
- American Motorists Ins. Co. v. Fodge, 63 S.W.3d 801 (Tex. 2001) (Division has exclusive jurisdiction to determine compensability/entitlement to benefits)
- SeaBright Ins. Co. v. Lopez, 465 S.W.3d 637 (Tex. 2015) (summary-judgment standard and construing Act to effectuate coverage purposes)
- Helix Energy Sols. Grp., Inc. v. Gold, 522 S.W.3d 427 (Tex. 2017) (conclusive evidence standard for summary judgment)
- Port Elevator-Brownsville v. Casados, 358 S.W.3d 238 (Tex. 2012) (insurer’s denial of coverage does not prevent employer from asserting exclusive-remedy)
- Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433 (Tex. 2009) (premises-owner/general-contractor may qualify as statutory employer under ROCIP framework)
- Morales v. Liberty Mut. Ins. Co., 241 S.W.3d 514 (Tex. 2007) (whether injury occurred in course and scope bears on compensability)
- Yeldell v. Holiday Hills Ret. and Nursing Ctr., Inc., 701 S.W.2d 243 (Tex. 1985) (personal-comfort doctrine: acts for health/comfort incidental to employment are within course-and-scope)