*1 HOUSTON, Appellant The CITY OF RHULE, Appellee.
Christopher
No. 01-09-01079-CV. Texas, Appeals
Court of Dist.). (1st
Houston 7, 2012.
June *3 KEYES,
Panel consists Justices SHARP, MASSENGALE. ON OPINION REHEARING KEYES, V. EVELYN Justice. Following issuance of our opinions 21, 2011, July this case on appellant, (“the City”), of Houston filed a motion *4 and a motion to rehearing dismiss appeal jurisdictional grounds.1 on We grant rehearing City’s to address both the motion rehearing and its to motion opinion We withdraw our dismiss.. judgment July 2011 and issue this opinion in judgment their stead. dismiss, In its motion con- tends that the trial court and this Court lack jurisdiction to entertain this suit be- Rhule, appellee, Christopher cause failed exhaust administrative be- remedies fore bringing suit. appeal,
In four on City argues issues (1) the trial court subject lacked mat- jurisdiction ter over damages requested the extent damages exceeded remedies allowed the Texas (the Compensation Workers’ Act “Act” or and, “TWCA”), thus, the trial court erred in denying City’s plea jurisdic- (2) tion; submitting the trial court erred a question jury allowed it damages award physical pain Rhule result of the breach of the settle- (3) agreement; ment the trial court erred in entering judgment jury’s on the award for mental anguish because Jr., J. Hall Holley, Alton Orelia Darcele there was no evidence of Rhule’s propensi- O’Connor, Mary Cozen Dean G. Pappas, ty for mental at the time Markantonis, PC, Pappas M. & Suchma parties into the entered settlement agree- Houston, TX, for Appellant. ment; (4) the trial court’s award Powell, Firm, John S. The Powell Law attorney’s fees was erroneous because Pearland, TX, for Appellee. any damages failed establish 1993). ., jurisdictional any (Tex. 1. A issue be raised Bd time. See Tex. Ass’n Air Control Bus. fees, inju- necessary medical attornеy’s [expenses] an award of support provid- claim as ries made the basis of this or, 88 of Civil alternatively, Chapter mutually agreed au- with a [TWCA] does not ed Remedies Code Practice and (the Agree- doctor” “Settlement attorney’s upon fees award of thorize an ment”). agreed The trial court entered municipality. to this effect cause number judgment and af- to dismiss deny the motion We (the “Agreed August 89-26686 on court. judgment of the trial firm the Judgment Judgment”). Agreed set final the Indus- aside the award made BACKGROUND trial Accident Board in the administrative Rhule, firefighter for the Houston Fire proceedings. on-the- permanent suffered a Department, honored the terms February injury on job spinal years, Agreed Judgment for a number timely filed workers’ He bills for including paying Rhule’s office Board, Accident with the Industrial *5 treating physi- agreed-upon visits with his (the the Texas Workforce Commission now cian, medication, pain his and installa- TWC).2 The Board Commission pain pain Then the pump. pump tion of an award in Rhule’s favor and issued ruled treating physician, to fail. began Rhule’s required City provide to Rhule Alvarez, Dr. as well as Dr. Elizabeth Dun- and Treat- “Lifetime Medical Care can, hired respected pain specialist injury, including pain his spinal ment” for City knowledge, without Rhule’s both the re- management. City appealed The be pain pump recommended that the re- proceeding to sults of administrative However, placed. City, which had County, of Harris the 281st District Court changed managers, risk determined that 89-26686, seeking to set in cause number pain pump and other medications and aside the award. sought by physi- Rhule and his treatments jury, trying In lieu of the case to reasonable, necessaiy, cian were not and parties reached a settlement injury.3In to the work related 1988 addi- to provided which that Rhule was receive refusing pain replace pump, tion to $86,000 discharged and that the was quit paying decided might Rhule any and released visits medications physician and his for workers’ benefits or have reasonably necessary. injury, arising for other claims from his eventually A. RHULE Rhule filed suit “except that CHRISTOPHER City in the 281st shall receive reasonable and District Court Harris open lifetime 2005, Code) May Leg., Compensation The Workers' Commis- and Act of 79th Texas R.S., 1.003, 8.001, §§ replace Tex. sion was created in the Indus- ch. Gen. 469, 469-70, 607-08). subsequently Laws trial Accident It was Board. 1, 2005, and September abolished effective new alleges, response City's functions were transferred to a division 3. Rhule mo- Insurance, dismiss, Department rehearing of the Texas motion to tion for and City changed See Sw. in 2004 or risk man- Texas Workforce Commission. Bell Mitchell, Managers, agers 444 & and new Risk Cam- "[t]hose Tel. Co. v. n. 12, 1989, (Tex.2008) Integrated Group, (citing bridge Dec. 71st Services instituted a Act of 17.01, C.S., 2.01-.09, negative long-term inju- Leg., program §§ 2d review of ch. (see cutting ry "arbitrarily long off Tex. Gen. Laws former cases” and Rev. City Houston seq., codified term em- Ann. art. 8308-2.01 et Civ. Stat. past employees.” Chapter ployees Texas and 1993 as 402 of the Labor 2005-79440, County, appeal Appeals, cause number to the Court of and $20,000 Agreement. appeal breach of the Settlement for an to the Texas Su- sought damages “out-of-pocket Rhule preme Court. expenses, expenses, loss of the incidental judgment filed motion for bargain,’ ‘benefit of the cost of reasonable verdict, notwithstanding asking the tri- past, in the care and treatment al court to eliminate past the award for cost of medical care and treatment which physical pain past anguish mental
will in all probability reasonable medical to enter judgment that “Rhule recover future, required physical pain in the. anguish mental damages, pocket out of ..., past in the suffering an- expenses, attorney’s only.” fees ..., guish damages, damages nominal at- City argued for physical pain torney’s necessary bring pros- fees cannot be recovered on a breach of con- action, ecute this costs of court.” [and] tract claim Rhule had failed to specific Alternatively, sought per- provide any evidence to show that he was Agreement formance of the Settlement entitled to mental damages for court, damages, actual costs of and at- breach of contract. The trial court denied torney’s Rhule also a declar- sought fees. motion and judgment entered on atory judgment clarify rights his City appealed. the verdict. The Agreement, specifically the Settlement concerning right ongoing lifetime MOTION TO DISMISS medical expenses relating injury. to his *6 In to juris- its motion dismiss for of lack Rhule specifically sought attorney’s also diction, 21, filed July after our 2011 opin- Chapters fees under 87 and Civil plena- ion issued but before this lost Court Practice and Remedies Code. ry jurisdiction, the City argues City plea jurisdiction, The filed a to the appeal juris- must be dismissed for lack arguing that Rhule’s breach contract diction because Rhule’s claim was not a claim request declaratory for relief contract, for claim breach of but instead were The barred. trial court denied the benefits; a claim was for denial of there- to plea jurisdiction parties and the fore, lay Rhule’s remedy exclusive proceeded jury.4 to a trial before Prior City argued the TWCA. The that Rhule trial, City paid replacement to for a failed to exhaust his administrative rem- pain pump for payment and reinstituted failing by edies to first his present claim Rhule’s visits and pain office medications. dispute to Industrial Accident It then demanded that drop Rhule this Board, now known as Department suit. Rhule refused. Insurance —Division of Workers’ Com- City The jury found that the failed to (DWC) pensation within six months comply Agreement, with the Settlement dispute the time such arose and and it determined that Rhule was entitled prior his suit filing required as $50,000 $75,000 past physical for pain, statute in effect at the time his on- past $2,500 anguish, for out the-job injury. of pocket The also expenses. jury found words, attorney’s entitled In City Rhule was fees other contends that $53,000 trial, $10,000 in the required amount of Rhule was to treat his claim that dropped. The record does not contain the trial court's ment claims were The case was claims, ruling jurisdiction, plea on the and it tried on breach of contract declaratory judg- declaratory judgment not clear when how the issued. was employment.” Id. return to retain Agree- the Settlement City breached 401.011(31). § City improperly that the as a claim ment benefits, be had to first which him denied provides 408.005 Labor Code section Board Accident to the Industrial presented of claims agreements” “settlements and (“IAB”). argument this City makes (Vernon § 408.005 for benefits. See id. sub- originally claim was though even 1993, 2006); Leg., Act of 73rd ch. May was the IAB mitted to 5(2), 6, §§ Tex. Gen. Laws 987 oc- settled, City’s alleged breach Code, Labor effective (adopting Septem- after the years in 2004—fourteen curred 1, 1993, as ber non-substantive revision of entered as an reached and agreement was Act, Compensation Texas Workers’ arti- the court. Judgment Agreed et seq., cles 8308-1.01 Vernon’s Texas Civ- case, history including ignores Statutes). setting il In addition to out original did present Rhule the fact that reaching binding valid and procedures and was awarded lifetime the IAB claim to agreements, section 408.005 care necessary medical reasonable and employee’s right provides “[a]n Board, award the resisted and benefits provided medical Section aside, resulting in the Settle- to set sued may not limited or terminated.” 408.021 be that the argues Agreement. ment 408.005(b). Tex. Labor Code Ann. estopped deny the histo- should governing compromise The law settle ry original between its denial of this case agreements compensa ment in a in 1988 its breach of the of benefits benefits seeking tion case for on- in 2004 and their Agreement Settlement injuries well established. In the-job agree We under the TWCA. implications Appeals the Amarillo Court Civil Rhule. predecessor observed Labor in La- specifically provides, The TWCA 408.021, section Texas Revised Code Civil 408.021, that еm- “[a]n bor section Code 7,5 article Statutes Annotated section *7 injury ployee compensable who sustains a in that the “provided substance insurance reasonably care is entitled to all health carrier shall such furnish medicines by injury the nature of the as required may reasonably medical care as be re when needed.” Tex. Labor Code Ann. any cure quired to and relieve time 408.021(a) (Vernon 2006). “compensa- § A injury.” after the time of the Moore v. defined, Co., injury” part, is in relevant as ble 533 Lumbermen’s Mut. Cas. 171, 1976, physical or harm to the structure “damage (Tex.CivApp.-Amarillo writ n.r.e.) in body” (citing of the that “arises out of and ref'd Tex.Rev.Civ. Stat. Ann. 7). 8306, Likewise, scope § the court employment.” recog course and Id. art. (26) (Vernon 401.011(10), predecessor § that the to Labor Supp.2011).A nized Code 408.005, 8307, 12, article benefit” obtainable under the section section “[m]edical “ liability payment provided “means health care rea- of the ‘[w]here Act (insurer) by a com- or the extent of the sonably required the nature of association uncertain, ... is pensable injury employee and intended to cure indefi being satisfactorily naturally incapable the effects nite or resulting relieve ..., established, may approve any compensable injury or ... board ... or commuta ability employee compromise, enhance the settlement 28, C.S., 1, 1917, R.S., 16.01(7), § Leg., 1989 Tex. Mar. ch. Gen. Laws See Act of 35th 269, 103, 7, 272, § (current ch. 1917 Tex. Gen. Laws Tex. Lab.Code 1, 114 version at Ann. (Vernon 2006)). 29, 1989, Leg., Dec. 408.021 repealed Act of 71st 2d ” Gregson must See v. Zu- exhausted. parties.’ made tion thereof between Co., 885-87(5th 883, Id. rich Am. Ins. F.3d Ann. art. (quoting Tex.Rev.Civ. Stat. 12). Cir.2003) 8306, § (holding compensation workers’ required claimant was not to initiate and Likewise, is well established “[i]t procedures exhaust administrative agreement, that a settlement compromise bringing TWC before in claims court Board, binding when approved against insurer had agreed provide who upon parties to it unless until the necessary all and reasonable medical cov- Id.; agreement lawfully set aside.” see erage pre- but then denied coverage Rubalcada, Cigna v. 960 S.W.2d Ins. Co. scription medication incident claimant’s (Tex.App.-Houston [1st Dist.] approved treatment; administra- (holding compromise pet.) tive review of insurer’s of such denial agreement binding settlement “is on the TWCA). treatment was not available under parties only be set aside on party grounds that would entitle a to re The Amarillo Court of Appeals Civil ex- that it scission at common law” and “su plained the v. law Barnes Bituminous claim”); persedes original Seale v. Am. Casualty long Corp. ago as 1973: Co., Motorist Ins. 798 S.W.2d 386-87 The defense of lack of juris trial court denied) 1990, writ (Tex.App.-Beaumont diction for failure to first secure action (holding claimant by the Industrial Accident on Board judgment who had obtained district court disputed expense [agreed to under com lifetime awarding ap her medical benefits promise agreement] settlement will not propriately brought suit in district court support summary ... judgment. When upon carrier based carrier’s indica compromise agreement settlement pay tion it would not for weight reduction parties executed approvеd by was treatments connection with claimant’s Board, there was a valid accord su Co., back injury); Argonaut Esco Ins. perseding compensa Barnes’ pending (Tex.Civ.App.-Beau tion only benefits claim and subject n.r.e.) mont (holding writ ref'd judicial Employers cancellation. Pacific compromise made Brannon, Ins. Co. v. 150 Tex. while workers’ case was (1951). approved agree S.W.2d 185 pending approved by court was valid ment compromised only settled claim, accord superseding original was benefits, disability Barnes’ both past but *8 subject judicial to only cancellation for and future expense liability as equitable grounds, fraud or other and was taken, well. No action has been either defendant). binding plaintiff on both and otherwise, in proceeding this or to have grounds for setting aside such a set the approved agreement judi settlement tlement agreement are those that would aside; fact, cially set in plaintiffs’ plead entitle a to at party rescission common ings are to allege drafted a breach and law, fraud, mistake, including mutual to enforce approved the terms of the See, other equitable grounds. e.g., Rubal agreement, settlement evidence cada, 960 at 412. S.W.2d opening appel statement made in their “(t)his Finally, it is well established that late brief that on is a suit breach agreement of a settlement long agreement reached contract.” So as the is under the TWCA is not subsisting, binding upon parties treated like an it is it, initial claim for benefits to on-the-job Lowry Andersow-Berney Bldg. for an v. Co.,
injury,
(1942),
for which administrative remediеs
139 Tex.
ment that estopped why it is not argument Accident Board. by the Industrial case, history and we hold deny of this City obligated agreement, Under Lomas & estopped. reasonable and that it is so See Net pay itself inju- spinal Huckabee, necessary medical care for tleton Co. life, recom- (Tex.1977) curiam) the care
ry including (holding (per home agreed-upon physician, an as mended were to assert claims estopped owners Agreement, in the Settlement set out escrow for second insurer agent “naturally ongoing pain alleviate Rhule’s policy asserting invalidity of first insurance injury” compensable from the resulting inconsistent where claims were so ... ability to return [his] and to “enhance prior allegation of homeowners’ successful employment.” retain See to or Tex. LaboR as to be coverage policy repug under first 401.011(31). Ann. Code justice); nant Horizon Con Offshore case is no in this Servs., There contention tractors, Inc. v. Aon Risk followed procedures were not proper 53, 69 (Tex.App.-Houston [14th Agrеement the 1990 the time Settlement denied) 2009, pet. (stating that doc Dist.] by the court approved reached and was judicial party estoppel trine of bars who Moreover, Judgment. Agreed an prior pro has made sworn statement the Settle- attempt made no set aside ceeding maintaining contrary position from un- Agreement, performance and its ment subsequent proceeding); Cook Compos years— fourteen Agreement der that ites, Corp., Styrene Inc. v. Westlake outside the of limitations for well statute 124, 136 (Tex.App.-Houston [14th setting agreement persua- aside such — dism’d) that, pet. (holding un Dist.] validity sively argues recognized of quasi-estoppel, party der doctrine binding Agreement. nature of the asserting right to disad precluded present any argument does not so vantage doing of another where authority support ignoring that would party’s previous posi be inconsistent with 408.021, 408.005, sections Labor Code tion). 408.011, injuries compensable which define *9 City’s conclude the motion to We that for lifetime provide under the TWCA and jurisdiction this case for lack of dismiss by reasonably required care where to Rhule’s failure to exhaust adminis- due injury the nature of the and for settlement bringing this suit trative remedies before brought binding Act in of claims under the Agreement the is for breach of Settlement valid Nor agreements. the deny mo- without merit. We therefore City present any argument the or does City’s of the tion and turn the merits extending authority support that would the appeal. doctrine of of administrative exhaustion
THE APPEAL parties CITY’S exists between the ato contract for provision the lifetime of medical care City argues con- appeal, On the that its in provisions reached accordance the with in handling duct medical care for Rhule’s TWCA, of the such that foreseeable non- compensation injury protected workers’ damages, including damages economic for by governmental immunity and that pain suffering anguish, mental are of scope governmental of the waiver that for recoverable its breach. He argues immunity is Rhule compensation limited that, case, in his own pain and suffering would have been entitled to and mental were foreseeable con- argues TWCA. It it is immune to of sequences City’s breach of the Set- claims for damages exceed remedies Agreement, tlement provides which for TWC; by exclusivity allowed that the care, lifetime medical including pain man- provision precludes in the TWCA workers and, agement, therefore, ishe entitled to bring who seek- claims under Act from damages recover for physical both his ing personal damages injuries for sus- his mental suffering. argues He also of employment, tained the course their he is entitled to recover attorney’s fees including for damages suffering incurred as a result City’s of the breach. and mental which anguish, are limited to actions;6 personal and that arguments. We consider each of these provide recovery TWCA does not Therefore, attorney’s argues, fees. A. Plea to the Jurisdiction subject trial court lacked matter jurisdic- issue, In its first the City argues that it tion over claims for damages immunity has not waived its to Rhule’s physicаl pain well anguish, damages claims, and attorney’s and, fees Thus, attorney’s as his claim for fees. because of its immunity, the trial court court denying erred in plea failing erred in to dismiss Rhule’s suit for jurisdiction subject on lack based lack jurisdiction. jurisdiction. matter 1. Standard of Review argues the City’s immunity to workers’ been compensation plea claims has A jurisdiction to the chal that, Legislature, waived lenges the trial court’s subject ju matter settling his and entering claims the Settle- to hear risdiction Bland Indep. case. Agreement ment Blue, accordance Sch. Dist. 34 TWCA, (Tex.2000). provisions in Subject jurisdiction waived matter immunity both from suit and lia- essential to the authority a court to bility for agreement. breach of that He decide a case and is presumed. never further argues damages that his Bd., for breach Ass’n Bus. v. Tex. Air Control of the Agreement (Tex.1993). Settlement are contract The existence damages a special relationship and that subject jurisdiction matter is question exclusivity 6. The provision pro- of the exclusivity provision TWCA mer version stated vides, "Recovery of workers’ injuries subject that workers whose are remedy employ- benefits is the exclusive right against of an TWCA have "shall of action ee covered against agent, insur- employer any their or servant coverage legal ance beneficiary or a employer employer said agent employer injuries_” employee personal or an v. Ins. Aranda Co. N.of *10 Am., employer 210, (Tex.1988) for the death of or a (quoting work-related 748 S.W.2d 214 injury 8306, by employee.” sustained former § art. 3 Tex. Labor Tex.Rev.Civ. Stаt. Ann. (Vernon 2006). (Vernon § Supp.1988)). for- 408.001 The Code Ann. 744 Pub. See Highways & Dep’t State
of law. Tex. Ann. tled. Labor Code 408.005(b), Gonzalez, 322, §§ S.W.3d 327 408.021. 82 Transp. v. (Tex.2002). Therefore, we review the trial contracts, it is “When state jurisdiction plea to ruling on a court’s liable made for its benefit as on contracts immunity from Id. de novo. Governmental Servs. private person.” if it a Gen. were subject court’s matter trial suit defeats a Co., 39 Little-Tex Comm’n v. Insulation Id. jurisdiction. (Tex.2001) Fed. (citing S.W.3d 594 immunity has two
Governmental Univ., Sign S. 951 405 v. Tex. S.W.2d liability from components immunity (Tex.1997)). Although by entering into a — Me immunity from Tooke suit. entity waives its governmental contract a (Tex.2006). xia, A 332 197 S.W.3d liability immunity from for breach is from state immune government unit of not, contract, entering merely by it “does the state consents. liability unless suit contract, immunity into a waive from suit.” Jones, Transp. v. Dep’t See Tex. Lawson, Univ.-Kingsville v. Tex. A & M (Tex.1999). Immunity (Tex.2002); Little-Tex subject suit a trial court’s from defeats Co., 39 The su Insulation S.W.3d at 594. properly is assert jurisdiction matter has, however, preme recognized the court Id. Immu plea jurisdiction. ed in a legislature’s “express govern waiver” of a from nity liability protects from state immunity liability mental unit’s both Legislature if the money judgments even compensation and from suit for workers’ expressly consent sue. Id. given has claims. La Porte v. Bar benefits Immunity (Tex.1995), field, 898 S.W.2d 2. Waiverof su perseded by grounds, statute on other Tra Practice and Remedies Code sec- Civil Norman, Appraisal vis Cent. Dist. v. municipality’s a immu- tion 101.028waives (Tex.2011). Moreover, plurali S.W.3d 54 nity from This claims TWCA. ty supreme court has held that provides: statute exposed “when governmental entity governmental A unit that workers’ has immunity, suit a waiver because of compensation accepts insurance or that nullify by settling cannot that waiver laws of this it can agreement with an on which privileges state is entitled to the Lawson, not be at 521. sued.” immunities the workers’ granted Thus, of a of a “enforcement settlement pri- of this laws state liability immunity for which is waived corporations. vate individuals immunity.” Id. should not be barred 101.028 Civ. Prac. & Rem.Code Ann. court in supreme Lawson addressed (Vernon 2011). TWCA, turn, pro- id. reasoning the uses here. See employee vides that who sustains “[a]n It “a acknowledged at 521-22. suit entitled to health compensable injury is all for breach of by the reasonably required care nature of separate from the suit on the needed,” apart when “[a]n claim,” settled and it that “[all- reasoned employee’s right to medical benefits as lowing government suit provided may 408.021 not be section terminated,” agreement settling breach a claim limited or and that a claim immunity which has been does not waived employer that an limited terminated policy Legislature’s interfere with the employee medical benefits to which stated, compromised The court further was entitled and set- choices.” *11 writ) course, assumes, gov- (stating, all that a -Beaumont in This con not, settling agreement would a text of breach of entity ernmental claim, immunity been suit for which has workers’ “This suit is waived, an ex- a obligation agreement undertake based on settlement that was liability much dif- into greater incorporated agreed judgment. it to an poses a judgment than that which it faced from Because consent is a ferent written original agreement, interpreted сlaim. But we think this as- should be as a general one. A settle- sumption relating is a realistic contract rules to con applicable.”). of a claim trades unknowns—such struction contracts ment be, as what the will and how evidence however, City argues, The that “[t]he will view it—for knowns—obli- jury scope of the waiver in connection with a gations accurately that are more assess- Agreement] breach of the [Settlement settlement, gov- reaching able. In scope should be limited to the initial ernment local guided is counsel Specifically, waiver. waiver provided degree of help gauge exposure by the Compensation] [Workers’ Act.” liability and the fairness of the settle- Thus, City argues that its liability Legislature ment. Once the has decided should be limited to the benefits that were claims, for a immunity to waive class of Compensation authorized the Workers’ inclusion of settlements within Act and the trial subject court lacked waiver is consistent with that decision. jurisdiction matter over Rhule’s claims for at 522. Id. limits, damages falling outside those name- ly, damages suffering, Here, by entering into the Settle anguish, and attorney’s fees. Agreement settling ment Rhule’s workers’ claim, City City’s argument waived its misconstrues the immunity liability agree from plain language under that governing statutes above, liable if ment became as it were and case law set out which unam- person. private biguously provides See Civ. Prac. & Rem. employee that an of a Tex. 101.028; Lawson, § 87 S.W.3d municipality who has suffered an injury Code Ann. Moreover, legislature’s at 520. compensable may waiver under the TWCA recov- City’s immunity exactly suit for er the same breach of purposes original com agreement settling an claims for medi- pensation City’s waived the im also cal benefits under that Act as an employee munity from en private suit for Rhule’s suit to of a company that breached an Agreement. force the agreement provide Settlement See Tex. medical benefits un- 101.028; § PraC. & der the TWCA. See Civ. Rem.Code Ann. Prao. & Rem. Civ. Lawson, Thus, Thus, case, § at 521. con we 101.028. in this Code Ann. clude liable for of Rhule recover damages breach from the just pri the Settlement Agreement any agreement as for the breach of an employer vate be liable for provide breach lifetime medical set benefits out agreement provide of an agreed duly medical bene promulgated judgment due to compensable injury fits if exactly under the TWCA See & private employer. only TWCA. were a ques- Tex. Civ. Prac. Rem.Code 101.028; Lawson, 521; therefore, remaining, S.W.3d at tion whether an Ann. Co., employee Little-Tex Insulation whose employer breached an 594; see also Mut. Fire Liberty provide Ins. Co. him with lifetime Crane, management (Tex.App. pain benefits awarded to him
746 liability whether close the determination of compensable under for the exists.”); v. S. Elec. damages City recover Houston is entitled to TWCA of (Tex. Servs., Inc., suf- 744 he 273 S.W.3d pain and physical denied) 2008, pet. the breach.7 App.-Houston Dist.] as a result of [1st fered facts alleged (holding pleadings sufficient Corp. City Reata Construction cites suit immunity waiver of establish its support claim. See City Dallas to of jurisdiction and de plea and to defeat conclude, (Tex.2006). We 371 197 S.W.3d damage plaintiffs determine clining to however, that Construction is dis- Reata jurisdiction). through plea as, case, present tinguishable from case, Dallas its City of waived We established that conclude seeking affirmative immunity merely by City immunity waived its from suit on relief, by by entering a claim settling not his claim for breach of the Settlement contract. See id. binding and enforceable liable for Agreement and that the at 373. any private on Rhule’s claims like damages Co., analogous cases 39 person. case is more See Little Tex. Insulation This Jones, 638-39; 594; statutory of limita 8 at interpreting the effect S.W.3d at S.W.3d Servs., Inc., breach contract tions on recoverable S. S.W.3d 744. Elec. 273 damages Any under Local Government Code alleged statutory limitations on City Mesquite v. de- damages section 271.153.8 In recoverable did not Inc., ju- Contracting, prive subject PKG Dallas Court trial court of matter “statutory limita Appeals adjudicate concluded risdiction to Rhule’s breach damages Contracting, tions on recoverable do PKG’s contract claims. See PKG Thus, mat deprive subject not trial court at 448. the trial court jurisdiction adjudicate ter PKG’s breach subject jurisdiction had matter over the suit, of contract err entirety claims.” and it did not (Tex. denied); App.-Dallas pet. City’s plea jurisdiction. see denying the Kirby Ltd. v. Lake also Lake Dev. Clear We overrule first issue. Auth., Water (Tex.2010) (“The purpose section Damages B. Recoverable by is to the amount 271.153 limit due second, issues, first, governmental on a contract once In and third agency its established, liability has not entitled argues beеn not to fore claimants are gov- adopts City's providing goods or the local 7. The dissent misconstruc- services to 271.151(2) predicates argument § tion of the law and entity.” (defining Id. ernmental upon referencing without the misconstruction subject subchapter"). to this Dam- "Contract controlling distinguishing statutes ages subject of a to sub- for breach contract case law. chapter limited balance 271 are to “the due entity governmental local and owed note, however, We that this case does contract as have been under arise section 271.153. That statute amended," owed for as well "the amount provides immunity waiver of from suit inter- change orders or additional work” and governmental entity local that is author- "[a] 271.153(a). Consequential and ex- § est. Id. ized statute or the constitution to enter emplary damages for unab- into a enters into contract and that a contract expressly sorbed home office overhead are subject subchapter chapter to ... 271 of [I contrast, 271.153(b). By § im- excluded. Id. the Local See Code].” Government Local (Vernon munity waived 2006). to suit under TWCAis 271.152 Code Gov't Ann. Practice Chapter governs section 101.028 of Civil "a written stat- contract ing Code. essential terms Remedies *13 Agreement Settling damages past physical pain recover for Breach of an Compensation Workers’ arising in a anguish for mental suit Claim or settlement of a workers’ Generally, the measure of Rhule is not entitled to claim and that damages for breach of contract is that In damages recover such this case. injured which рerson restores to the issue, argues that trial second economic he position enjoyed would have if submitting question jury court erred in the contract been performed. had Mood of for damages physi- an award permitting Prods., Inc., 8, v. Kronos 245 S.W.3d 12 pain of cal on Rhule’s breach contract denied). (Tex.App.-Dallas pet. issue, City argues In claim. its third These include consequential damages, sup- the evidence was insufficient to that damages or those that naturally, “result anguish award of mental port jury’s necessarily, but not from the defendant’s of damages on Rhule’s breach contract wrongful Bayless, acts.” Stuart v. 964 claim. (Tex.1998) curiam) (per S.W.2d 921 (quoting Arthur Andersen & Co. v. Perry exclusivity that the City argues pro- Equip. Corp., S.W.2d precludes damages vision of the for TWCA 816(Tex.1997)). Consequential damages suffering anguish and and mental for pain recoverable, however, are not unless the agreement breach of a settlement under contemplated parties at time they Act, it just precludes personal inju- made the contract damages such damages claims for made in ry for benefits probable would be a result of breach. administrative the Act. proceedings under Thus, recoverable, consequential Id. to be Therefore, argues, it is immune under damages be must foreseeable and directly liability Act from to the ex- wrongful traceable to the and act must damages he pain tent seeks for and suffer- result from Id. it. However, ing anguish. and mental we already have the legisla- determined that this regard, damages In a governmental entity’s ture’s waiver of suffering mental mаy be recoverable for immunity from on a compen- suit contract, breach of but “the applies immunity sation also to waive distress of mind must be shown have from suit for enforcement of necessary been such a and natural result claim and that the is liable for party breach of contract as that the breach of that settlement breaching be it will held to have contem private person extent a liable. such plated suffering.” City mental See Tex. Civ. PRAC. & Brown, (Tex. Ann. 129,131 Rem.Code Dallas v. 150 S.W.2d Lawson, 101.028; 521-22; S.W.3d dism’d). Civ.App.-Dallas writ Conse Barfield, question, at 294. The S.W.2d quential damages for physical serious therefore, suffering is whether therefore, suffering may, mental be recov anguish damages are recovera- suffering ered when such necessary is the consequential damages ble as breach of result of foreseeable the defendant’s provision a contract for the of lifetime Likes, Tyler conduct. See care, including pain management, 495-96 (Tex.1998)(citing made to settle a claim cases). TWCA. they hold are
We recoverable Thus, the general rule that mental suf- appropriate case. fering is not allowable as an element of Recovery Damages Pain damages for breach of has long contract Suffering Anguish and Mental held be a qualified been one. See Rather, good and fair duty breach of the faith
Brown,
at 131.
in the
upheld
dealing
mental an-
for intentional misconduct
long
courts have
Texas
processing
paying
contract in
for breach of
guish
Aranda, 748
relationship”
claim under
the TWCA.
“special
is a
when there
сases
(1988).
stated,
contracting
The court
claimant
between the
well
law
“It
established under Texas
party,
*14
every
is a
‘accompanying
that
contract
is
in na-
personal
contract
the
[in that]
care,
duty
perform
with
common law
duty or obli-
and the contractual
ture
skill,
expedience
reasonable
and faithful
matters of
coupled
gation
so
done,
and a
thing agreed
ness the
solicitude, with the
or
or
mental concern
any
to observe
of these
negligent failure
whom the
party
of the
sensibilities
as well
a breach of
conditions is
tort
owed,
duty
that a breach of that
duty is
”
(quoting Montgom
Id. at 212
contract.’
necessarily
reasonably
or
result in
will
Scharrenbeck,
&
ery Ward
v.
Co.
suffering,
and it
anguish
(1947));
see also
parties
the
from
be known to
the
should
Seale, 798
at 390.
suffer-
nature of the contract that such
from its breach.
ing will result
that,
spe-
The court
the
held
because of
Wyatt,
Foley
Pat H.
& Co.
relationship
cial trust
between the insured
(Tex.Civ.App.-Houston
[14th
the
in the
compensa-
insurer
n.r.e.)
(quoting
writ
ref'd
Dist.]
context,
tion
contract between
“[t]he
10, 55
Shingleton,
Lamm v.
281 N.C.
compensation
employee
carrier and an
cre-
(1949)).
appeals
The
of
S.E.2d 810
court
type
special relationship
ates the same
of
Foley
in
H.
that
specifically observed
Pat
con-
that arises under other
insurance
plaintiff
of the
anguish
the mental
was
Aranda,
The
tracts.”
The Texas Court both the absence reasonable basis denying delaying in com- foregoing reasoning payment the workers’ (2) pensation policy It held exclusivi- area. that the benefits ty provision pre- the TWCA carrier knew or should have known that does deny- was reasonable clude a claim insurance carriers for there not a basis delaying paymеnt dealing and fair or for ing the claim or intentional miscon- processing duct in the of a claim.” Id. at 213. Aranda, 214. claim.” 748 S.W.2d at Re- exclusivity provision of
Addressing the covery permitted when claimant TWCA, court held that remedies duty shows that insurer’s breach of the only Act “are if afforded exclusive good and fair or its dealing faith inten- injury of is an con injury complained wrongful separate tional act is from the templated by personal the Act—a produced claim and has employment.” course of sustained Id.; independent injury. Massey, 652 (citing predecessor Id. at 214 Labor S.W.2d at 408.001, Code section Texas Civil Revised 3). In Statutes article section Likes, Subsequently, Tyler v.
view, was not shield Act intended to “[t]he court supreme explored rationale *15 from the entire field carriers of the exception general and extent Id.; of tort law.” see Reed Tool Co. v. rule recovery that limits for breach of (Tex.1980).9 736, Copelin, 610 739 S.W.2d First, contract to economic it recog loss. exclusivity provi The court that the held nized that “Texas has recovery authorized “exempt employers sion does not from anguish of mental damages virtually in all liability inju Likes, common law intentional personal injury actions.” 962 ries” it be read as a and “cannot bar 495 (quoting S.W.2d at v. Krishnan Se (Tex. job-related 478, claim that is not based on a 916 pulveda, S.W.2d 481 Aranda, 1995)).In addition, injury.” (quot 748 recognized S.W.2d at 214 it 739). Tool, Rath ing anguish compensable 610 S.W.2d at Reed also as “Mental er, claim employee may “an have one duty the foreseeable result of a breach of against employer arising his under the Act and out certain special relation ships.” another claim at common law for an inten Id. at 496. These include the Id.; tional see also Arm Massey physician-patient relationship, very tort.” and “a Co., co dealing Steel 652 933 limited S.W.2d number contracts (Tex.1983)(holding employee may intensely emotional non-commercial sub against have employer jects one claim under as preparing such for buri corpse at TWCA another common law al.” Id. tort; permitted intentional claimant is cautioned, however, that, The court good
recover for breach of
faith and fair
“[wjithout intent or malice on the defen-
if
dealing
separate
or intentional act
part,
bodily injury
dant’s
serious
to the
produced indepen
claim and
plaintiff,
special relationship
or a
between
injury).
dent
parties,” damages
the two
are recoverable
Accordingly,
anguish
only
types
the court held that
for mental
“in
few
bar a
involving injuries
TWCA
cases
a shocking
“does
of such
duty
carrier
good
disturbing
anguish
for breach
faith
nature that mental
time,
cause,
place,
gradu-
9. We
Code
opposed
note that Labor
section 408.006
to a
states,
legisla-
express
"It is the
intent of the
build-up
period
al
over a
emotional stress
nothing
ture that
in this
Bruce,
subtitle shall be con-
of time. GTE Sw. Inc. v.
998 S.W.2d
expand recovery
strued to
limit or
in cases
(Tex.1999);
Emp'rs’
610
Brown v. Tex.
injuries.”
mental trauma
Ass’n,
(Tex.1982):
Tex. Labor Codeann.
Ins.
417
408.006(a) (Vernon 2006).Mental
trauma
Co.,
v. Tex. Gen.
Shannon
Indem.
however,
section,
compensable
this
(Tex.App.-Houston
[14th Dist.]
only
undesigned
when there is evidence of an
writ).
оr untoward event traceable to a definite
(Tex.1987)).
not,
result,”
howev
such as
court did
foreseeable
highly
is a
er,
ruling
Ruttiger’s
claim of
death
actions
extend its
wrongful
actions for
family
of a
duty
good
close
bystanders
breach of the common law
distinguishing
Id.
In
dealing.
member.
at 496.
faith and fair
disallowing recovery for
these cases and
reasoned,
analy-
“In the final
court
property
de-
anguish
sis,
cause
is a com-
the Aranda
of action
itself,
rea-
the court
struction
Likes
preroga-
it is
mon law one and
this Court’s
soned,
suffering seri-
persons
“While few
responsibility
tive
evaluate whether
feel made
bodily injury
ous
whole
appro-
action continues to be
cause of
expenses
recovery
mere
of medical
However,
priate.” Id. at *23.
while the
property has been
wages, many
lost
whose
“that
majority was
belief
Texas
entirely
sat-
damaged
destroyed
will
join
majority
should
of states
do
value.”
by recovery
isfied
of its
Id.
Aranda-type
not allow
suits
the work-
496-97;
v. Med. Pro-
see also Verinakis
ers’
compensation setting,”
ultimately
Inc.,
(Tex.App.-
files,
up
Legislature
that it was
concluded
denied)
1999, pet.
[14th Dist.]
Houston
if
override Aranda
it so chose
Texas
(stating
recovery
authorizes
of dam-
court,
it had not done so. Id. The
there-
“(1) as the fore-
ages
for mental
*16
fore,
the
the court
remanded
case to
of
of duty arising
seeable result of a breach
appeals,
had
which
not considered the
relationships,
of certain
such as
special
out
duty
good
law
of
faith and
common
fair
relationship
physician
and a
the
between
Aranda,
only
in
dealing recognized
but
the
(2)
common
torts
patient;
for some
law
statutory duty
good
violation of the
of
faith
generally
involve intentional or mali-
Code,
dealing
and fair
under the Insurance
and, by analogy,
cious conduct such as libel
to determine whether the defendant insur-
for violations of certain statutes such as
company
duty
ance
had
of
breached
DTPA;
(8) virtually
the
and
in
all personal
good
fair
the
dealing
faith and
com-
injury cases where the defendant’s conduct
granted
mon
Id. Rehearing
law.
has been
bodily injury”).
causes serious
by
Ruttiger.
the
court in
supreme
In Texas Mutual Insurance Co. v. Rut-
We conclude that
the instant case is
tiger,
Supreme
a divided Texas
lim
Court
Ruttiger
distinct from
in that the act com-
overruling
ited Aranda
it. No.
without
plained
at n of—the
breach of
Set-
08-0751,
(Tex.
WL
Agreement
tlement
in 2004—occurred
26, 2011,
Aug.
rehearing granted). After a
outside the context of the administrative
detailed
the history
examination of
of the
decision-making process under the TWCA
that,
TWCA and of
in the
amendments
and, therefore,
governed by
contract
majority,
many
estimation of
cured
law,
provisions
rather than
of the
in the handling
the ills
of TWCA claims
addition,
TWCA. In
what is at issue in
justified
that it believed
imposi
Aranda’s
the availability
this case is not
of a statu-
duty
tion of a
faith and fair
good
deal
tory cause of action for unfair settlement
ing,
majority
injured
held that an
Code,
practices under the
but
Insurance
worker claiming
prac
unfair settlement
availability
under the common law of
tices under
has no
the TWCA
cause
pain
and suf-
non-economic
action under
prоvision
Insurance
fering
mental
for breach of a
imposes duty
good
and
Code
faith and
dealing
agreement
fair
in
and
for life-
handling
providing
settlement
settlement
at n 5-12
care,
time
in
of claims. Id.
reached
accordance
(overruling
Aetna
Marshall,
TWCA,
Surety
&
in the
that evinces
provisions
Cas.
Co. v.
relationship
medications,
type
special
recognized
for the
pain
installation of
Likes,
pain pump,
Aranda
Likes. See
in both
for more than a decade.
748,S.W.2d
Aranda,
496;
962 S.W.2d at
In
City intentionally
breached
at
agreement by refusing
pay
for re-
placement
failing pain
pump, against
Thus,
that recovery
we conclude
the recommendation
Rhule’s treating
damages, including
of non-economic
dam
physician, agreed
parties
both
in the
suffering
ages
pain and
Agreement,
Settlement
and the recom-
permitted
anguish,
when
claimant
mendation of an expert pain-management
either that an
that is
employer
par
shows
and,
hired
physician
itself
sub-
to a
ty
under the
sequently, by refusing to pay for Rhule’s
injury contemplated by
for an
TWCA
pain
doctor visits and
medications. These
duty
law
good
Act breached its common
entirely
intentional acts
separate
were
and fair
that it
dealing
faith
committed
from
any
distinct
acts
connection with
separate
an intentional
act
wrongful
the resolution of Rhule’s 1988 claim for
injured
claim
compensation for
on-the-job injury
produced
an independent
proceedings before the Industrial Accident
pain
suffering
mental an
Furthermore,
Board.
provided
guish that followed
the breach wаs
fore
justification
for these actions whatsoev-
Aranda,
seeable result of the breach.
other
er
than its own unilateral determina-
214; Massey,
see
652 S.W.2d at
that coverage
tion
pain
of Rhule’s
pump,
(holding that employee may
have one
visits,
doctor
medications was not
against employer
under TWCA and
medically necessary and that
it was im-
another at common law for intentional tort
*17
liability
mune from
its
for
acts.
produces independent
injury);
that
see
Likes,
also
ical respected, also City contacted issue, City con In its second pain-management special- board-certified erred submit that the trial court tends Duncan, ist, “peer Dr. review” with- that allowed it jury ting question and asked her to knowledge, out Rhule’s pain. physical damages Rhule to award pain whether the use determine charge objected trial to the City reasonable for pump necessary was find an allowing jury to question replied She care and treatment. compensate to Rhule amount City it was and informed the that it that pain resulting physical his to expect batteries in the device have could Agree- of the Settlement City’s breach “necessary.” After it replaced to be then, argued argues Rhule ment. answer, hired a this dif- received now, proper. was He question Freeman, physician, Gary ferent Dr. who City’s comply refusal to argues pain specialist, and claimed to was not pay for his obligation its to with opinion refusing replace his rely upon pain access to the denied him expenses Rhule, who pain pump. When had pain his effec- managed which had pump, attorney, objected, engaged per- allowed him to work and tively and doctor, Dr. chose a fourth Leonard Thus, be- day-to-day tasks. other form Herschkowitz, expert. as medical That pump on pain he could not afford the cause opined replacement also doctor other, rely on and was forced his own pump, malfunctioning which was pain pain-management treat- less-effective increasing, was pain while Rhule’s was rea- ments, unnecessary pain while he suffered gentle- necessary sonable and to “allow dispute for his required was wait he man to function.” There was additional resolved, thus experience began evidence that re- damage was actual physical pain physical excruciating inability agree- from the breach of the sulted work. ment. hold that the record contained suffi- We
We review the trial court’s suffering evidence of pain cient caused jury ques of instructions and City’s submission the by the breach of Settlement for an abuse of Moss v. tions discretion. jury the Agreement support verdict. Tex., Inc., Mgmt. 305 S.W.3d Waste of issue. City’s We overrule the second (Tex.App.-Houston pet. [1st Dist.] 81 Sufficiency Sup- 3. of the Evidence denied). A trial its discretion court abuses Damages Anguish porting Mental in an arbitrary when it acts or unreason manner, or if it able acts without reference issue, City In its the third com any guiding rules Id. A principles. supporting the plains that evidence court has wide in submit trial discretion jury’s anguish damages award for mental ting jury questions. instructions and Id. was no was insufficient in that there evi propensity The evidence this case showed that dence of Rhule’s mental Agree re- City only anguish not Rhule the at the time the Settlement denied and, by parties, entered failing pain pump, of his which ment was into placement therefore, by agreed the trial court should have had been recommended Alvarez, judgment physician, Dr. motion for upon treating granted but notwithstanding visits the verdict. pay also refused for his doctor structing jury anguish sustain a “no-evi- on mental We dam challenge sufficiency only ages, sufficiency we evaluate the legal denee” (1) a complete discloses when the record evidence based on the charge instruc (2) fact; of a vital absence evidence actually tions that were submitted to the or rules of is barred rules of law Peca, court Osterberg jury. See v. 12 S.W.3d only to the giving weight evidence from (Tex.2000). Thus, to overturn the (3) fact; prove evidence offered a vital award, jury’s we must determine that vital prove evidence fact is offered there was no evidence mental anguish (4) scintilla; or more than a mere damages have would been within the con conclusively oppo evidence establishes templation City at the time it en of a site vital fact. Keller Wil tered into the Settlement Agreement with (Tex.2005). son, In 168 S.W.3d Keller, Rhule. See 168 S.W.3d at determining legally there is suffi whether 810; McLure, Tiller v. 121 S.W.3d finding support evidence to cient (Tex.2003); Osterberg, also see review, we must consider evidence favor that when (holding at there is no rele finding if a able to the reasonable fact- objection jury vant charge, we evaluate disregard finder could and evidence con sufficiency of evidence on charge based trary finding to the unless a reasonable and instructions that were submitted to not. Id. fact-finder could jury). stated, charge The sum jury “What cash, “Generally,
money, if an award of any, paid if now in mental reasonably anguish fairly compensate damages supported must be [Rhule] if damages any, nature, for his that resulted from duration, that the direct evidence City’s] failure to comply [the [with severity mental anguish was suffi Only ... Agreement]? Settlement include cause, caused, cient to either sub you such amounts for mental disruption stantial the plaintiffs daily find would been within contem- have high degree routine or a of mental City at plation of the the time the contract Guerra, Corp. and distress.” Serv. Int’l v. response was made.” In (Tex.2011) 221, 231 (upholding question, jury answered anguish damages award to widow $75,000 was entitled to for his mental an- body whose husband’s moved cem was guish. etery operator without permission, but overturning daughters award to decedent’s object did before trial legal insufficiency to sup of evidence portion charge. to this court Likes, award); 495; port 962 S.W.2d at City now on argues appeal that “[t]here *19 Co., H. & Foley Pat at 907. evidence, absolutely was the evi type Even when an occurrence of the for nothing dence wаs so weak that it did anguish which mental a suspicion, more than create surmise or awarded, nature, duration, of “evidence the particular susceptibility the Rhule had a to severity anguish the mental of is re City emotional distress and the knew Guerra, 231; at quired.” see particular his It susceptibility.” about re Verinakis, also 95(stating on S.W.2d at Eye Perry, lies Lions Bank Texas of that, longer requires while Texas law no (Tex.App.-Houston [14th denied) support physical anguish, manifestation of mental pet. Dist.] to its However, produce City plaintiff claims. because the did not direct evidence of “must duration, nature, charge severity in object portion the the the the lifelong care and establishing pain requiring medical substantial anguish, mental routine”). daily its her the that its decision to breach disruption anguish in his or the duty obligations its perform testified, the trial, regarding At Rhule that cause. Rhule testified contract would City, the that with Agreement Settlement him he receive important it was that that to him he receive important was injury, his lifetime medical treatment for for his back medical treatment lifetime City’s willing accept that he was not told he him that injury because the doctor be- years’ expenses offer of ten medical re- would ongoing problem had him his already cause doctor had told rest of his life. his for the quire treatment the rest City require back care for original- that when Rhule testified appealing life, the admin- ly decided to file suit of his that he not afford to could that he proceeding determination replace provide istrative his medi- pump expenses lifetime medical was entitled to own, cation and that his functionali- on his City because very was he concerned ty severely compromised pain was without years’ him ten worth only give wanted to Knowing things, these medication. eventually He set- expenses. of medical City itself to lifetime obligated provide City under the tled his claim with Rhule, man- including pain medical care to Agreed Judgment.10 in the terms related care, obligations agement and fulfilled its that he relied on Rhule further testified decade, including paying for over expenses medical payment of his visits, medications, and for Rhule’s doctor effectively manage pain, including his Then, when pain pump. installation of pain City’s approval pump. of his first fail, began City made pump replacement City denied the When replace pain refuse to decisions to battery pump, and eventual- pain in his visits, doctor pump, paying- to cease well, ly denied other forms of treatment as and to medi- paying pain cease Rhule’s pain, experienced significant he fear that cations, overruling repeated competent adequately he would able to treat never be showed recommendations if pain suffering he did was care continued to be such medical difficulty pay expenses, sleeping, necessary, in dis- reasonable and conscious eating problems, and other digestion regard predictably that Rhule would suffer psychological problems. stress-related physical and men- did suffer both Finally, that he Rhule testified was seek- anguish tal as a result its aсtions. $108,000 mental ing for his —a he it was number arrived because that the is suffi- We conclude evidence they paid many “three times [him] what anguish damages cient to show that mental anguish.” years ago [his] were consequence a foreseeable Agreement breach of the Settlement testimony Rhule’s and other documents within the contemplation was indicated was aware from the that the City at the time it entered into the Settle- of the original Agreement time Settlement ment and that the severity inju- Agreement nature and Rhule’s intentionally breached ry diagnosis and of nevertheless permanent *20 inadmissible, argu- City’s questioning 10. As him at are 408.” Thus the Rhule’s counsel was trial, original began testify regarding appeal and ment that neither Rhule’s Rhule to on original attorney surrounding attorney City’s testi- original suit nor the circumstances surrounding regarding Agreement, fied the circumstances Settlement counsel for Honor, interjected, Agreement is City getting the Settlement "Your he’s formation of think, which, misleading. negotiations into settlement I care, was, however, to be provide causing compensated. There duty its anguish dispute it nec- a Rhule to the mental about amount of workers’ suffer him, that would be essarily paid foresaw. and that matter was aby resolved settle- City’s third issue. We overrule agreement. ment This appeal relates to subsequent disputes arose re- Attorney’s Fees C. spect provided to medical treatment to be issue, City argues In its fourth to the settlement. pursuant Rhule eventu- not to an award of that Rhule was entitled ally filed suit City for breach of However, City did attorney’s fees. the settlement agreement. objection to the of attor any make award court, ney’s in the trial and it affirma fees immune employee’s from an in tively judgment its motion stated suit claiming pain suffering or mental notwithstanding the that the trial verdict anguish damages arising from an on-the- court enter for Rhule judgment should job injury. The district court therefore damages, awarding anguish “mental out of jurisdiction lacked Rhule extent attorney only.” fees pocket expenses, and addition, sought such In remedies. Rhule Tex.R.App. 33.1; Smith, P. See Marcus required present was such claims for 408, (Tex.App.-Houston filing administrative resolution before suit (“In 2009, no order pet.) [1st Dist.] Accordingly, in court. Rhule’s failure to preserve complaints regarding an certain exhaust his administrative remedies consti- fees, attorney’s party award of must jurisdictional tutes a separate barrier timely sufficiently specific make a ob his claims.
jection in to such an award the trial immunity I. Governmental court.”). Therefore, the waived any regarding fees. complaint attorney’s The City of Houston partial asserts im- suit, munity from Rhule’s to the extent City’s We issue. overrule fourth monetary that it seeks physical relief for resulting CONCLUSION City’s breach of a agree- deny We to dismiss motion categories ment. of damages Those were jurisdiction. lack judg- We affirm the among statutory not available reme- ment of court. the trial original dies for Rhule’s compen- claim. origi- sation At time of Rhule’s MASSENGALE, dissenting. Justice (1) claim, nal his sole remedies were MASSENGALE, Justice, MICHAEL percentage average weekly wage, up of his dissenting.* maximum, a statutory than for no more (2) wеeks, Rhule in- Christopher tragic suffered reasonable necessary (3) jury in of duty serving attorney’s the line as a of medical expenses, fees firefighter. dispute Houston There is no awarded as percentage any income sacrifice, justly for his deserved benefits received.1 * 26, 1981, R.S., 861, 1, my dissenting July Leg. I opinion § withdraw 67th ch. opinion I substitute this (formerly Tex. Gen. Laws codified place. 10), repealed § at art. 8306 Stat. Rev.Civ. 12, 1989, C.S., Leg., Act of 2nd Dec. 71st Rhule's Because occurred 1, 114; 16.07(7), governed ch. "old” 1989 Tex. Gen. Laws claim was worker’s 6, 1969, generally May Leg.R.S., act. Act of Act See of Mar. 61st ch.
756 immunity immunity by a regain settling not waived governmental municipality’s
A case,” liability Supreme a of immunity plurality from of Court of both consists See, e.g., Tooke holding from suit. Texas noted that its assumed that immunity 325, Mexia, not, 332 entity v. would in set governmental “a of (Tex.2006). validity of a waiver of The immunity tling a suit which has been immunity depends on the governmental waived, obligation that ex undertake as to unambiguous being clear waiver greater it to much poses liability differ See, e.g., scope. that from the origi ent than which it faced Tex. Gov’t Code Ann. (West Travis Supp.2010); § 311.034 Relying claim.” Id. on nal at 522. Norman, 342 Dist. v. CentAppraisal logic, previously our Court has held (Tex.2011). 54, case of 58 In the S.W.3d immunity no waiver a there is suit for compensation system, workers’ claimed breach of a settlement limited and exclu remedies are available from when the State was immune the set See, e.g., sive. Tex. Lab.Code Ann. Patterson, See tled claim. Porretto v. 251 408.001(a) (West HCBeck, 2006); § Ltd. v. 701, 712 (Tex.App.-Houston S.W.3d [1st (Tex.2009). 349, Rice, 352 284 2007, pet.). no Dist.] clearly unambiguously Remedies govern- not a in which a This is case sys compensation in the included workers’ entity waived mental would reclaim immu- scope not included in the tem are therefore by asserting immunity from a nity suit for immunity. governmental the waiver agreement. breach of a settlement From See, Barfield, e.g., City LaPorte 898 outset, no there has been waiver of (Tex.1995) (“The 288, rule 297 City’s immunity from suit for claims of immunity a must be clear and waiver of suffering anguish. unambiguous applies to both the existence was therefore immune waiver.”). the extent of the asserting In settling suit such claims. governmental entity A settle a claim, workers’ rational immunity which its has claim as to been agree governmental entity pro- would waived; so, by doing it does not ex but greater than those vide remedies available pand This com scope waiver. compensation sys- through assump principle was a critical mon-sense immunity already tem and which had A underlying tion the decision Texas & governmen- waived. rational been And a Lawson, M University-Kingsville v. entity only agree tal (Tex.2002). S.W.3d 518 Lawson held that provide remedy within universe of when the State into a settlement enters in the workers’ outcomes available com- agreement to resolve claim for which it (or pensation process equivalent or less- immunity, waived cannot thereafter has value). er breach immunity from a suit for majority’s holding may lead id. state agreements. the settlement See holding governmental 522-23. In the “State entities to be reluctant should 987, 4, 48, (formerly Legisla- § Gen. Tex. Gen. 1250. The 1969 Tex. Laws Laws 8306, 11), compensa- § worker’s codified at Stat. art. ture codified the current Tex.Rev.Civ, 12, 1989, repealed by Leg., systеm in Code as Act of 71st tion the Labor the Texas Dec. C.S., 1, 16.01(7), Compensation § Act. See Tex. 2nd ch. 1989 Tex. Gen. Workers’ Lab.Code 114; (West Supp. §§ Laws see also Act of Dec. 401.001-419.007 & Ann. C.S., 15.47, 2010); §§ Leg., § 2d ch. see abo Tex. Lab.Code Ann. 504.001- 71st Tex. (West (formerly Supp.2010) (providing codified as .073 2006 & Gen. Laws 8309h, 3), coverage repealed Art. insurance Rev.Civ. State. worker's subdivisions). 12, 1993, R.S., Leg., employees May political ch. Act of 73rd *22 care, skill, with the or provide lifetime benefits connection rea- agree for compensation expedience workers’ claimants sonable faithfulness and dispute provi- paid that a future over the claim is aby fear which a workers’ com- carrier,2 expose could the enti- pensation of such benefits claim properly sion to mental other ty anguish and statutory not under the arises workers’ not to the scheme, that would be available remedies compensation but instead under simply long government so claimant duty an independent good common-law of the claim to conclusion of litigates recognized faith fair dealing and legal process. In this and administrative in Aranda v. Supreme Court of Texas case, City agreed provide remedy America, Company Insurance North of from that could have resulted the workers’ (Tex.1988).3 210, 748 S.W.2d 212-13 A (i.e., compensation process claim resolution suit municipality immune from for torts fixed lifetime medical benefits and a performance in the gov- committed of its cash). Only the of fact of a settle- amount functions,4 including the provi- ernmental support agreement alleged is now ment compensation sion of workers’ benefits.5 claim suffering The Legislature specified has damages. of a The fact mental providing context of compensa- workers’ with Rhule should benefits, tion govern- “[a]n action subject responding to suit City entity or unit employee or an of a alleging recovery theories of from which governmental entity or unit for a breach of had settle would be immune if it refused to good of duty dealing faith and fair process the outcome the claims had of 104, governed Chapters Civil governmental the same. law of been Practice Remedies Code.” Tex. Lab. immunity this permit does not undesirable 2006).Those 416.002(b) (West § Code Ann. result. however, provisions, statutory do not Moreover, from an municipality’s immunity to the extent that a workers’ waive a Aranda claim.6 Even if Aranda compensation claim claimant assert a acknowledges City 2. that the was self- 6. See Tex. Civ. Prac. & 101.021 Ann. Rem.Code 2011) (West insured. (waiving governmental liability damage, injury, "property personal continuing viability been Aranda has proximately wrongful death caused act Mut, into Co. called doubt. See Texas Ins. negligence employee or omission or the of an 08-0751, 3796353, Ruttiger, No. 2011 WL if, acting employment” scope within his (Tex. 26, 2011), Aug. reh’g granted, *23 No. conditions, among injury other arises 17, (Tex. 2012). 08-0751 Feb. Even if operation from "the or use a motor-driven Supreme ultimately Court of Texas deter- equipment" or vehicle motor-driven or "a compen- mines revisions workers' tangible personal or use of condition or real statutory have sation scheme obviated .002, 104.001, (waiv- §§ claims, property”); id. .0035 Arаnda-type need Rhule's ing governmental immunity duty prior statutory regime, under a to in- occurred see supra presumably demnify persons note certain Aranda for certain acts or apply. still "by person omissions in the course and office, scope person’s employment, or Mexia, 4. See Tookev. 197 S.W.3d performance contractual service on be- (Tex.2006). institution, agency, depart- half of Leander, ment”); see also Milner v. Galveston, 5. See Jackson v. (Tex.App.-Austin pet.) (Tex.App.Houston 870-71 Dist.] [14th (no statutory denied) immunity waiver of for claims of (characterizing provi- writ bad-faith denial of sion of workers’ as a benefits function). governmental by municipalities). benefits *23 the when tort are by Legislature damages against governmental could be asserted governmental recoverable enti- 101 and such Chapters entity under plea ty.8 Accordingly, on subject limitations be claim would granted. jurisdiction have been should under those statuto- damages recoverable ry provisions.7 II. administrative Exhaustion remedies traditionally Legisla- defer
Courts
immu-
governmental
ture on the waiver
this
originally
appeal,
After we
decided
be “better suited to
nity, assuming it to
argument
a new
presented
associ-
conflicting policy issues
balance the
jurisdiction
this
the trial
lacked
over
court
Norman,
immunity.”
waving
ated with
case because Rhule failed
exhaust
Falls
(quoting
at 58
Wichita
argument
administrative remedies. The
692, 695
Taylor,
Hosp.
State
premised
the accurate characteriza-
upon
(Tex.2003)). Permitting
proceed
Rhule to
concerning
tion of Rhule’s сontract
ultimately
recover
with his suit and
payment for medical services
treatment
pain and mental an-
damages
physical
for
dispute arising
as a
from workers’ com-
of a
claim dis-
guish
guise
in the
contract
pensation compromise
agree-
by
Legisla-
rupts the balance struck
approved by
ment
the Industrial Accident
through
ture
the enactment
Labor Code
by an
implemented
agreed
Board and
416.002(b),
by improperly
both
sub-
by
section
a court.9
judgment approved
origi-
entity to re-
governmental
jecting
petition
alleged
nal
specifically
suit,
defending
sponding
deny necessary
to and
“has
continued
also,
treatment,
permitted, by
suit is
to the extent
reasonable medical care
as
statutory
circumventing
per-
limitations to
well as the
of medications ...
provision
agreed
recovery
tort-type
judg-
mit
of unrestricted
clear and direct breach of the
...”
ment.
The fact that
claim was
damages,
applied
free from
limitations
delays
§
101.023
direct result of owner-caused
or ac-
See Tex. Civ. Prac.
7.
&Rem.Code
Ann.
celeration;
govern-
(limiting
liability
amount of
under the
Claims
(2)
mental entities
Texas Tort
change
owed for
orders
the amount
Act,
$250,000
including maximum amount of
the contractor
direct-
additional work
single
person
for
for
each
for each
occurrence
governmental
perform by
ed to
a local
enti-
(disclaiming
bodily injury);
§ 101.024
au-
id.
contract;
ty in
with the
connection
exemplary
under the
thorization of
(3)
necessary attorney’s
reasonable and
Act);
(limit-
§ id.
Texas Tort Claims
104.003
just;
equitable
fees that are
ing
damages pur-
recoverable
the amount of
law,
(4)
by
including
interest as allowed
entity's liability
governmental
suant to a
Chapter
interest as calculated under
104).
Chapter
indemnification under
Government Code.
(West
Loc. Gov't Code
271.153
Ann.
Although
panel majority
finds this claim
Supp.2011). Damages
suffering
analogous
permitted
Local
to those
under
271.153,
contemplated by
and mental
are
major-
Government Code section
specifies
ity
provision,
this
explains
remedy sought
which
exclusive
never
how
provision’s
govern-
lim-
permitted
Rhule is
recoverable from a local
remedies
money
itations on the amount of
that can be
of a
entity for breach
contract.
governmental entity
against a local
awarded
for the breach of a contract.
271.153,
section
9. The
Rhule’s cause of action
Under
thus treats
claim,
not,
damages are
sug-
contract
limited to:
as a
and it does
contract
(1)the
majority, argue
gested by
panel
balance due and owed
the lo-
governmental entity under the contract
cal
was not a claim
breach of
“Rhule’s claim
amended,
including
may
contract,
as it
have been
was a claim denial of
but instead
any amount owed as
for the
benefits.”
perform
work as a
increased cost to
been
presented
Any
not first
for administrative reso-
filed with the board....
final
decision,
why
denial,
the trial
ruling,
lution is an additional reason
or award of the
vacated
judgment
court’s
should be
appealed
any
board
party
*24
be
the case should
dismissed.
according to and under the provisions of
Section 5 of Article 8307 of this Act. The
parties
The
and duties of the
are
rights
board, however,
jurisdic-
shall have no
by the
provisions
determined
the Work-
tion to
or
rescind
set
any compro-
aside
Compensation
applicable
ers’
Act
at the
mise
agreement
settlement
approved by
See, e.g.,
accident.
time of the
Gibson v.
any
agreed
board or
judgment ap-
Co.,
757,
Grocers
759
Supply
S.W.2d
proved by
court.11
1993,
(Tex.App.-Houston
no
[14th Dist.]
writ).
argument
City argues
statutory
The exhaustion
is based The
that
provi-
this
upon
governs
compromise
a workers’
statute that
sion
its
settlement
Rhule,
agreement
was in effect at the time of Rhule’s injury
which was ap-
proved by
1988.10 Section 12b of former Article
the board and incorporated into
agreed
8307 of the Revised
provided:
judgment approved by
Statutes
court.
Because
failed to present the
in any
Whenever
settlement
compromise
dispute to
the board as required
agreement approved by the board or in
statute, he failed to exhaust his exclusive
any agreed judgment approved by the
remedy,
administrative
and the trial court
court, any dispute
concerning
arises
jurisdiction.12
lacked
Like American Mo-
payment
hospital
...
ser-
[or]
torists
Co. v. Fodge,
Insurance
treatment,
vices ... or
or for medicines
(Tex.2001),
and unlike Texas Mutual
injured
...
...
employee
Ruttiger,
08-0751,
Insurance
Co.
No.
provided in such compromise settlement
(Tex.
26, 2011),
majority subject-matter the exercise of justify reached majority upon Barnes v. Bitumi "breach of settlement 13. The relies (Tex.Civ. Corp., like an initial Casualty S.W.2d 5 under the TWCA not treated nous 495 n.r.e.), injury, on-the-job benefits App.-Amarillo writ ref'd which claim for for an years ex- the 1983 enact which administrative remedies must be was decided 10 before City, Gregson guidance upon by provides hausted.” no of the statute relied ment aрpeal upon the proposition Accident this because that case turned that the Industrial jurisdiction inapplicability dispute resolu- matter after the of the medical Board lost over a approved parties’ compromise procedure set Labor Code section tion board 887-88, 413.031, Gregson, agreement. majority offers see F.3d at tlement no 322 implicated by that is not Rhule’s claim explanation support for its assertion that matter language City. upon it from Barnes relies "is good today” legisla despite law the 1983 still incorrectly Curiously, panel majority changes City, spe which tive invoked argument City presents that "the no states compromise cifically required disputes over estopped history why deny agreements presented first settlement to be case,” reply when in filed a this fact the board. respond suggestion of es- brief to Rhule's toppel. upon panel majority reply, In its relied 14. The references current Houston, Code, County Ap version of section of the Labor Tourneau Inc. v. Harris 408.005 Dist., (Tex.App. agreements, praisal relates to which settlements why pet.), provides explanation no [1st Dist.] but it this Houston governs estopped arising proposition one is ever ”[n]o current statute asserting jurisdic subject lack matter from his 1988 the breach Subject jurisdiction cannot be compromise agreement reached in tion. matter consent, waiver, estoppel majority explain panel 1990. Nor does the conferred any stage proceeding.” why provisions apply of a these statute upon by relied does not. Kazi, Petroleum v. 17. Dubai Co. (Tex.2000) Gregson (quoting Underwriters panel majority relies on Fed. 15. The Co., Pugh, 141 Exch. v. Zurich American Insurance F.3d (1943)). 883(5th Cir.2003), proposition