543 S.W.3d 397
Tex. App.2018Background
- Bruce Howard, a CES employee, died in a tank explosion; Nelly Sosa claimed she was his common‑law (informal) wife and filed for DWC death benefits and later wrongful death and survival claims in probate court.
- At a DWC contested hearing, the hearing officer found Sosa and Howard were not informally married under Tex. Fam. Code § 2.401; that DWC order became final after the appeals panel denied review and Sosa did not seek judicial review.
- Sosa later obtained an uncontested probate heirship judgment declaring her Howard's common‑law wife and was appointed administrator of his estate.
- CES moved for traditional summary judgment in the wrongful death and survival suit, arguing (1) collateral estoppel based on the DWC finding bars Sosa's standing as surviving spouse, and (2) the Workers' Compensation Act's exclusive remedy bars the survival claim (except for exemplary damages in wrongful death claims).
- The probate court granted CES summary judgment (without specifying grounds) and severed claims; Sosa appealed only the summary judgment ruling.
Issues
| Issue | Plaintiff's Argument (Sosa) | Defendant's Argument (CES) | Held |
|---|---|---|---|
| Whether DWC finding that Sosa was not informally married precludes her from bringing wrongful death claim as surviving spouse | DWC decided only beneficiary eligibility; that is not identical to "standing" to sue as surviving spouse in wrongful death action | The factual question—whether Sosa and Howard were informally married under Fam. Code § 2.401—is identical; DWC's final factual finding is preclusive | DWC finding is preclusive; collateral estoppel bars Sosa from relitigating informal‑marriage issue and thus she lacks surviving‑spouse standing for wrongful death claim |
| Whether exclusive remedy bars survival claim seeking exemplary damages for gross negligence | Exemplary‑damages exception to Tex. Lab. Code § 408.001(b) allows a survival action seeking exemplary damages | The statutory exemplary‑damages exception applies only to wrongful death claims by surviving spouse or heirs of the body; survival claims are derivative and barred | Survival claim for exemplary damages is barred by the exclusive remedy provision; only wrongful death claimants may use the exemplary‑damages exception |
Key Cases Cited
- Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507 (Tex. 1998) (elements and effect of issue preclusion)
- Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796 (Tex. 1994) (issue preclusion requirements)
- Getty Oil Co. v. Ins. Co. of N. Am., 845 S.W.2d 794 (Tex. 1992) (identity‑of‑issues requirement for collateral estoppel)
- Shepherd v. Ledford, 962 S.W.2d 28 (Tex. 1998) (use of Fam. Code § 2.401 to determine common‑law marriage in wrongful death context)
- Russell v. Ingersoll‑Rand Co., 841 S.W.2d 343 (Tex. 1992) (survival action is derivative; recoverable damages are those the decedent suffered while alive)
- Ross v. Union Carbide Corp., 296 S.W.3d 206 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) (exemplary‑damages exception applies to wrongful death, not survival claims)