Tervita, LLC v. Casey Sutterfield
482 S.W.3d 280
Tex. App.2015Background
- Sutterfield worked for Tervita in North Dakota, was injured, and filed a worker’s compensation claim that Zurich denied; a TDI-WC contested case hearing ruled for Sutterfield.
- Sutterfield then sued Tervita, Zurich, and adjusters for (a) violations of Texas Labor Code ch. 451 (employment discrimination for filing WC claims), (b) negligent misrepresentation, and (c) conspiracy.
- Tervita moved to dismiss under the Texas Citizens Participation Act (TCPA), asserting its participation in the TDI-WC hearing and association with Zurich were protected petition/association activity.
- The trial court denied the TCPA motion; Tervita appealed interlocutorily.
- The court of appeals held that Sutterfield’s conspiracy claim and the portion of his discrimination claim premised on Tervita’s testimony at the TDI-WC hearing are subject to the TCPA and barred by absolute privilege, so those claims must be dismissed.
- The court affirmed denial of dismissal for the remaining discrimination and negligent misrepresentation claims (hostile work environment, pre-hearing communications, wrongful discharge) and remanded for consideration of attorney’s fees under TCPA §27.009 for the dismissed claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether claims based on testimony at the TDI‑WC hearing are based on Tervita's exercise of the right to petition under the TCPA | Sutterfield: the testimony is only the culmination/evidence of broader discriminatory conduct, not the basis of the claim; TDI‑WC lacked jurisdiction over labor claims so TCPA shouldn't apply | Tervita: participation and testimony at an official administrative proceeding is petitioning activity protected by the TCPA | Held: Yes. The conspiracy claim and the discrimination claim based on presenting false testimony are "based on" protected petitioning and were subject to dismissal. |
| Whether testimony given in the TDI‑WC hearing can serve as a basis for tort claims (e.g., conspiracy, misrepresentation) | Sutterfield: alleged false testimony caused injury and supported claims | Tervita: testimony in a quasi‑judicial/governmental proceeding is absolutely privileged and cannot form the basis of tort liability | Held: Absolute privilege bars claims based on the contested hearing testimony; those claims were dismissed. |
| Whether the TCPA does not apply because claims "arise out of" an insurance contract (TCPA §27.010(d)) | Sutterfield: his claims stem from Tervita’s election to carry WC insurance and therefore arise from the insurance contract; statute should be exempt | Tervita: plaintiff sued under Labor Code and common law, not under the Insurance Code or an insurance contract | Held: TCPA exemption for actions "brought under the Insurance Code or arising out of an insurance contract" did not apply. |
| Whether remaining claims (hostile work environment, pre‑hearing misrepresentations, wrongful discharge, negligent misrepresentation) are subject to the TCPA | Sutterfield: these claims are based on out‑of‑hearing conduct and thus fall outside TCPA protections | Tervita: sought dismissal under TCPA as to all claims, including association with Zurich | Held: Tervita did not meet its burden for these claims; TCPA dismissal denied as to them and they proceed on remand. |
Key Cases Cited
- In re Lipsky, 460 S.W.3d 579 (Tex. 2015) (explaining TCPA burdens and dismissal framework)
- Senior Care Res., Inc. v. OAC Senior Living, LLC, 442 S.W.3d 504 (Tex. App.—Dallas 2014) (absolute privilege bars tort claims based on statements in quasi‑judicial proceedings)
- Serafine v. Blunt, 466 S.W.3d 352 (Tex. App.—Austin 2015) (movant may satisfy TCPA first prong from pleadings)
- In re Hinterlong, 109 S.W.3d 611 (Tex. App.—Fort Worth 2003) (perjured testimony in judicial proceeding cannot underlie tort liability)
- Addison v. Diversified Healthcare/Dallas, L.L.C., 378 S.W.3d 625 (Tex. App.—Dallas 2012) (only subscribing employers are subject to Labor Code protections tied to WC claims)
- Texas Mutual Ins. Co. v. Ruttiger, 381 S.W.3d 430 (Tex. 2012) (cited as related authority on WC retaliation/claim preclusion issues)
- In re Crawford & Co., 458 S.W.3d 920 (Tex. 2014) (cited on TCPA/privilege intersections)