*1 Petitioner, MEDINA, Lazaro Forging and Interstate
Jose HERRERA Respondent.
Industries, Inc.,
No. 95-0885.
Supreme Court Texas.
Argued Dec. 1995. May 1996.
Decided
Rehearing Sept. Overruled *2 Lewis, Bryan,
Stuart F. for Petitioner. Houston, Wittenmeyer, John D. William Davidson, Angleton, W. for Respondent. PHILLIPS, Justice, Chief delivered the Court, GONZALEZ, opinion of the in which HECHT, CORNYN, SPECTOR, OWEN, ABBOTT, Justices, joined. BAKER and work, suffering After pe titioner for and received workers’ We benefits. must determine pursuit pre whether his of that now pursuing cludes him from various common law intentional claims his em ployer grant co-worker. trial court defendants, summary judgment ed for both appeals and the court of affirmed. that, We hold under the facts case, petitioner’s his em- conference, see id. review benefit ployer is barred a matter 410.023, parties to reach failed compensation reme- at which election of the workers’ hearing dy, is not a contested case agreement. but his claim his co-worker After 20, 1993, 410.151, January We therefore affirm see id. barred. appeals part yet and reverse in court of had not hearing ruled that Medina officer *3 remanding petitioner’s his part, improvement, and maximum medical reached pro- to for further co-worker the trial court temporary to he was entitled continued thus ceedings. ap- Foregoing right its to benefits. income 410.202, Liberty § peal ruling, id. see I temporary income benefits paying resumed alleges that Lazaro Medina he 3, 1993, Petitioner the date to until November Medina on supervisor his October was assaulted improvement. statutory maximum medical Bl, 1991, Forging working at Interstate while 401.011(30)(B). Thereafter, § Liber- See id. (“Interstate”) Navasota, Texas. Industries ty impairment income paying commenced Medina, riding According he was on a appear It that Medina. does not benefits to supervisor, driven his forklift work rating impairment Medina contested Herrera, began punching Jose when Herrera by Liberty calculating duration of used attempting get him the While stomach. impairment benefits. See id. income attack, Medina off the forklift evade this § 408.125. fell, asserts, injuring he lost balance Meanwhile, In- sued Herrera and Medina his back. 28, 1993, seeking com- terstate on October later, 6, 1991, A on November Medi- week alleged no damages. Although he mon missing inju- began na work due to back action, that specific Medina claimed causes following day, reported ry. The Interstate Herrera, acting in the course while carri- injury compensation to its workers’ Interstate, had inten- employment with of his Compensation Com- er and to the Workers’ answering, tionally injured him. After both carrier, Liberty Mutual In- mission.1 The judgment, summary moved defendants began paying temporary Company, surance for in- contending solely that Medina’s suit 20, benefits to Medina on November income barred his earlier elec- tentional tort was remedy. compensation of the workers’ tion thereafter, Shortly Medina hired attor- time, Liberty paid over By had Medina that ney and filed a formal claim for benefits, $50,000 in workers’ form, with the Commission. On the claim weekly in- pay impairment was scheduled to prepared by attorney, Medina which was 1994, and was obli- benefits until June come injury circumstances of his described the expenses flowing gated medical pay future consistently present allegations. with his life. injury for the of his Medina’s rest from injury Liberty contested that Medina’s never § The trial court 408.021. Tex.Lab.Code compensable workers’ com- under the granted summary for both defen- system, longer and that issue is 11,1994. dants on March subject dispute. See Tbx.Lab.Code 409.021(e) (carrier compensa- § must contest trial appeals affirmed the The court sixty bility days after receiv- within It judgment. concluded court’s injury, ing or else it waives notice remedy com- and the workers’ so). to do are mon law intentional Medina, by exclusive, electing temporary income so
Liberty paying ceased remedy, any later claim waived contending that May on at 628-29. im- intentional tort. maximum medical Medina had reached application granted then 408.102. We provement. See evaluation, requested writ of error. Disputing this Medina January 71st 1991. See Acts governed by after the new Work- 1. Medina’s Act, C.S., §§ Leg. 401.001- ch. 17.18. ers’ 2nd 418.002, occurring applies injuries which II doctrine of “election remedies” We first address Medina’s claim that,
is an affirmative defense
under certain
express pro
Interstate. There is no
circumstances,
person
pursuing
bars a
from
Compensa
vision
either the new Workers’
two
generally
remedies. See
tion Act or
act expressly
the former
exclud
Bocanegra v. Aetna
Ins.
605 S.W.2d ing coverage
injury resulting
for an
from
Life
850-52
We must determine
employer’s
Massey
tort.
(Tex.
whether
pur
this doctrine bars
Medina
Armco Steel
suing
arising
1983), however,
intentional tort claims
from his
which was decided under the
workplace injury
act,
because he
expressly
earlier
former
stated
an em
for and
received workers’
ployee’s
ben
claim for
*4
efits.
employer
or
against
his
her claim
at
mutually
common law for intentional tort are
Bocanegra,
the Court
that
noted
Copelin,
exclusive.
v.
See also Reed Tool Co.
election of remedies doctrine combines ele-
404,
(Tex.1985); Castleberry
689 S.W.2d
406
ratification,
estoppel,
unjust
ments of
665,
Goolsby Bldg. Corp.,
v.
Although
enrichment.
A partner partnership-employer a where a argues receipt personally employee, first v. Medina his assaults an see Jones Jeffreys, (Tex.Civ.App.— benefits is not incon- d), present corpora sistent with his tort Dallas writ ref where reject specifically claims. While we this contention as tion directs servant commit Medina’s claim Inter- an assault on a fellow Richard servant. See state, Fair, Inc., agree with Medina to his claim son v. The supervisor, (Tex.Civ.App. writ Herrera. dism’d — Beaumont cor.). tion,” employer spe- corporate or where provides the Act
judgm’t
Because
situations,
assault. 2A
cifically authorizes the
coverage
compensa-
in these
LARSON,
remedy
tort
tion
and the intentional
Compensation,
WORKMEN’S
Law of
(1990).
68.00,
68.21
The mere fact that an
factually
employer
inconsis-
are
employer may
for conduct under a
be liable
and thus
tent
exclusive.
according
theory
superior,
respondeat
theoiy against
Inter
Larson,
impute
con-
Professor
should
however,
state,
him
is that Herrera assaulted
trigger
so as to
duct itself
acting in
“course
while Herrera was
exception
from workers’
scope”
employment
with Interstate.
Likewise,
coverage.
the mere fact that
Id.
Generally,
vicariously
liable
master
supervisory position
holds a
the tortfeasor
in the
of its servants committed
the torts
trigger
the ex-
over
claimant should
employment.
course and
their
ception.
§Id.
68.22
Felder,
Tex.
Houston Transit Co.
occasions noted
While we have
several
(1948).
have
While we
provide coverage
ordinarily
is not
within the
“[i]t
stated
torts,
employer’s intentional
we have never
authority
scope of a servant’s
to commit
the distinctions outlined
before discussed
person,”
see Texas
Pac.
assault on third
&
above,
a rule
nor have we articulated
191, 247
Ry.
Hagenloh,
Co. v.
151 Tex.
*5
determining
corporate
of a
when conduct
(1952),
exceptions may
exist
agent
corporation
be attributable to the
will
assault, although
specifically
where the
purposes
applying
exception.
the
for
by
closely con
authorized
is
important,
is
we decline to
While this issue
duties,
nected with the servant’s authorized
today,
it
as has not been briefed or
resolve
security guard
as
more
such
where
uses
argued by
parties and resolution is not
necessary
protecting
is
in
force than
necessary
explained
this
As
decide
case.
employer’s property.
Inter
Id. Because
below,
against
claim
Medina’s common law
summary judgment
state offered
evidence
is
Interstate
inconsistent with
earlier re-
negating Medina’s contention that Herrera
ceipt
regardless
benefits
acting
scope
in the
was
course and
alleged
or
whether
not Herrera’s
assault
employment,
allegation
to be
we assume
to be the intentional tort of Inter-
deemed
for purposes
present
true
of our
review.
state.
clear, however,
It is far from
Mid-
whether
logically
alleged assault
must
Herrera’s
progeny
interpreted
dleton and
should be
1)
categories:
fall into one of three
as-
that, simply
holding
because
Interstate; 2)
directly
sault
is attributable
co-employee in
assaults a
the course and
assault, although
directly
not attributable
employment,
the tort is deemed to
Interstate,
employ-
motivated
employer”
“the
so
be
intentional tort of
3)
dispute, or
the assault was
ment-related
as to exclude
Act’s cover-
by personal
motivated
reasons unrelated to
Richardson,
age.
supra,
In
ex-
the court
category,
employment.
Under the first
distinguished
pressly
unprovoked
between
coverage
provide
pursuant
the Act would
by co-employees,
committed
assaults
Middleton,
rule of
and under the third
(see
may provide coverage
Act
which the
coverage
category
provide
the Act would not
II-A-2,
infra), and a
as-
section
“malicious
express statutory exception.
pursuant
to an
committed under the direction and
sault
406.032(1)(C).
In these
See [corporate] employer
the command of
situations, therefore,
reme-
...,”
excepted
which is
from the Act’s cover-
dy
factually
with Medi-
would be
inconsistent
age
at 886.
under Middleton.
Interstate,
rendering
na’s tort claim
similarly
Professor Larson
concludes that
mutually
exclusive.
remedies
exception,
generally
intentional tort
which
jurisdictions,
category,
recognized
ap-
in
the second
on the other
other
should
Under
hand,
provide coverage, as
only
the Act would
ply
corporate employers
where
Thus,
II-A-2,
is,
section
“assailant
virtue of control
owner-
discussed
infra.
situation,
receipt
Medina’s earlier
ship,
ego
corpora-
alter
of the
effect the
necessarily
benefits
liability
circumstances,
would not
mon law
under such
factually
be
present
inconsistent with his
Legislature
re- we conclude that the
could not
spondeat-superior
claim
Interstate.
have intended for
the workers’
Nonetheless,
system
provide
liability
because the
would
to shield a worker from
coverage, it likewise would
his or her own
shield Interstate
intentional assault on a co
liability pursuant
from common law
Interpreting
to the worker.
the act in this manner
exclusivity provision.
would be
approach
See our
Middleton,
Thus,
interpreted
408.001.2
where
while the
would
the former
remedies
inconsistent,
abrogating
employee’s right
act as not
factually
they
not be
still
would
recover for
mutually
intentional
torts.
185 S.W. at
purposes
be
exclusive
of the
Brown,
560. See
also Elliott
election
569 P.2d
of remedies doctrine.
(Alaska 1977)
1323, 1326-27
(despite exclusiv
reasons,
foregoing
For the
we conclude
ity provision
normally
shielded co-em
receipt
Medina’s earlier
ployees
liability, plaintiff
from common law
present
tort suit
who received workers’
Interstate constitute
rem-
exclusive
co-employee
still
could
sue
for intentional
edies.
injuries,
subject
not be
would
remedies).
election of
Accord Andrews v.
Peters,
N.C.App.
this case from third viding third-party Medina made an such actions informed election. subrogated rights carrier is response to Interstate’s motion for sum- paid. employee for the amount judgment, mary submitted an affida- Medina provisions are: These stating pain” vit that he was in “constant (a) beneficiary may legal or An following any income “without whatsoever” party damages from a third who is or seek injury, re- and that he inju- pay damages becomes liable to get “in some immedi- ceived benefits order under this ry compensable that is death injuries [his] ate medical attention pursue also subtitle *7 wage compensation to lost some immediate compensation benefits under this support He further asserted that [himself].” subtitle. not a to right did understand that he had he (b) by injured If a benefit is claimed pursue a common law intentional tort claim. legal beneficiary of the em- or a however, undisputed, It is that Medi subrogated ployee, the carrier is insurance attorney in represented na was both rights injured employee the submitting his formal claim for party may liability of third enforce the the securing temporary in benefits and continued injured employee or the in name of the the benefits at the hear income contested case legal beneficiary.... suit, By time he ing. the Medina filed par- § 417.001. “third While receiving been for almost two had defined, Legislature ty” statutorily is the years, represented the entire time while include the could not have intended for to circumstances, Medina counsel. Under these employer, as an who receives com- law, must, charged as matter a be injury for is pensation benefits a covered knowledge of his remedies. employer by the Act’s suing the barred ap- exclusivity provision. he did not See Medina also contends that Further, provides section 417.004 preciate of his when 408.001. the extent back that, actions, third-party employer “the accept this applied for benefits. While we in he summary party to third for reimburse- purposes true not liable the assertion as for review, judgment the inju- damages based on extent of ment or it is the executed, be- surrounding employer ry settlement unless but rather circumstances 604 occurred, incurring legal any
fore the or death expenses a written which in event agreement party Moreover, with the third to assume could not be in- “[a]n recovered. liability.” language This indi- likewise [equitable] subroga- is not surer entitled to party” cates that “third include the if the tion insured’s loss is excess of the Moreover, employer. interpreting similar amounts from the recovered insurer provisions under the former Workers’ Com- Ortiz, party causing third the loss.” 597 Act, routinely courts used term Thus, any S.W.2d settlement of the party” against per- “third to refer to actions tort claim less than the full amount of the See, employer. e.g., sons than other would, at partially, negate insured’s loss least Texas, Varela v. American Co. Petrofina right equitable subrogation. the carrier’s Inc., (Tex.1983) (“[The Finally, perhaps importantly, Id. most exclusivity abrogates provision] the covered required the carrier would be effect sue employee’s right to recover common law policy-holder, its own to re- damages employer personal from the in- paid coup policy. amounts it had jury covered the Workers’ conflict, which we believe would cause overall However, Act. employee may re- seek sys- detriment to the workers’ covery a party negligence from third whose tem, type is the of anomalous result which Thus, injury.”). contributed section prevent. the election doctrine intended provide 417.001 does not a carrier with right subrogation against allowing We thus conclude that Med paid. pursue ina an intentional Interstate, having after earlier re argues Liberty, The dissent benefits, ceived workers’ will even if pursue statutory subroga it cannot injustice. result manifest 417.001, tion under section has a equitable subrogation against Interstate paid amount of benefits Gen Medina. Ill erally, a paying an insurer under argues Medina next the doctrine of policy any equitably subrogated becomes apply election remedies should not because cause of action the have insured judgment regarding there has been no final party responsible injury. third for the claim. relies on He American Centennial Ins. Co. v. Ins. Canal Inc., Jalco, Grimes v. Typical (Tex.App. [1st writ Dist.] — Houston ly course, applied, when this doctrine is n.r.e.), a refd case decided under former the insured has a cause of valid action Ferguson Hospital Corp. See also v. act. policy insurer under (5th Cir.1985). Int’l, F.2d valid of action the third-party cause Grimes, dispute existed to whether See, e.g., tortfeasor. Ortiz Great Southern injured eligible worker Fire & Ins. Cas. *8 compensation independent benefits (Tex.1980). present The distinguish case is eligible contractor not for benefits. The able in that Medina’s workers’ worker, having hearing claimed at the Board claim tort claim against and employee, he was an that received award.
Interstate are exclusive remedies. Apparently with amount of Thus, dissatisfied the Liberty’s subroga underlying the facts award, appealed the the worker to district tion claim would be inconsistent with the court, third-party where he also asserted a underlying compensation payments facts the against claim the based on alter- subrogation claim which the was based. pleading employee. however, native that he was not an Assuming, compen that workers’ granted summary judg- trial After the court pursue equitable sation could carrier subro- circumstances, employee appeal- ment for the the gation under these we none appeals ed. The court of reversed the sum- injustice theless conclude that manifest carrier, holding prevent mary judgment, that the doctrine of would result. The a dou claimant, recovery apply ble the re election of remedies did not because would be quired appeal proceedings, intervene in tort was on the the award provides open provision con- courts not final. The court reached this
thus re- though employee had as follows: clusion even the the benefits and ceived at least weeks of every open, person All courts shall be disputed he apparently longer that carrier lands, him, goods, for an done employee. a covered was remedy by reputation, shall have person or of law. due course disagree We with Grimes Const, I, pre- provision art. Tex. it of holds a final resolution extent from, among Legislature other vents the necessary always a compensation claim is the things, abrogating right assert well- If claim element of the election defense. cause action un- common law established is eligibility benefits ant’s outweighs for its action less the reason disputed, not the fact that the amount of right of See litigant’s constitutional redress. not dispute still in should ultimate award is v. Air Con- Business Texas Texas Ass’n of making binding prevent Bd., trol hand, On the other if the carrier election. discussed, previously As availability disputes not Compensation apply Act does Workers’ justice injured remedy, may require that the tort claim to a worker’s intentional simultaneously pursue, worker be allowed to Thus, employer. Medina’s intentional basis, compensation on an alternative bene claim Interstate has been damages against fits and common Legislature, by the but rather barred employer. Bocanegra, 605 S.W.2d Cf. voluntary election of an inconsistent own (worker’s receipt 852-53 Compensation under Workers’ against group did bar later claim Applying Act. of remedies de election only non-occupa policy, health which covered does not these circumstances fense under injuries, tional where worker had settled open right to courts. See violate Medina’s relatively compensation case for low amount Mfg. Co. Cardinal Constr. Grove inju dispute because factual as whether (Tex.Civ.App. — Houston ry coverage is occupational). Where n.r.e.). 1976,writ ref 'd [14th Dist.] disputed, may have fact the worker reasons, foregoing affirm the accepted temporary benefits from the For the some appeals judgment the court of as to Medi- will in and itself carrier constitute against Interstate. reverse na’s claim We election remedies. judgment appeals court of as to case, Liberty present Herrera, never remand Medina’s claim disputed compensable that Medina’s pro- further that claim to the trial court for Act, and under the Workers’ ceedings. sixty days so
lost its to do after ENOCH, J., dissenting opinion. filed injury. received notice of the Tex.Lab. 409.021(c). enti Because Medina’s Code Justice, ENOCH, concurring part reme tlement the workers’ dissenting part. suit, dy when was settled he filed this agree I Herr- that Medina’s disputed still have been fact that there I to this end concur. era is not barred and (al regarding the issues amount disagree I the Court’s But though the record silent to whether *9 Forg- Interstate existed) negate Inter such issues Industries, Receiving ing Inc. is barred. defense. state’s election and main- workers’ action for taining intentional tort cause of IV legally injuries nor the same are neither factually Conse- remedies. finally argues open that the courts Medina required is quently, no election of remedies provision protects of the Texas Constitution respectfully I dissent from in this tort claim Interstate. case his intentional judgment. portion of the disagree. Court’s We 606
First, I note that the
Compensa-
Workers’
of remedies doctrine. This doctrine relies on
tion Act is
the exclusive
for work-
principles
ratification,
estoppel,
unjust
injuries,
related
exception
with the
of inten-
Bocanegra
enrichment.
v. Aetna
Ins.
Life
injuries. Rodriguez
Indus.,
tional
Naylor
v.
Co.,
848,
(Tex.1980).
605 S.W.2d
851
And
Inc.,
411,
(Tex.1989);
763 S.W.2d
412
Reed
principles
these
are
to the factual
Tool
Copelin,
404,
Co. v.
689 S.W.2d
406 underpinnings of the claims.
Id. As the
(Tex.1985);
Co.,
Massey v. Armco Steel
652
concedes,
Court
Medina’s claim for intention-
932,
(Tex.1983).
S.W.2d
933
Additionally, an
injuries against
al
employer
his
is not factual-
assault
supervisor
imputed
is
ly inconsistent with his
compensa-
workers’
employer under the doctrine
respondeat
tion claim.
S.W.2d at 933
another
...
the Court’s
waive
decision in this
Applying
cause of
case.
action for intentional
the election
tort if he
Act.”)
seeks
doctrine to bar an
(dicta);
employee’s
benefits under the
intentional tort
Jones
(Tex.Civ.
Jeffreys,
cause of action
estoppel
because of
or ratifi-
refd)
App.
(same);
principles
cation
writ
violates
see
the Texas Constitu-
- Dallas
employee’s
Ramirez v. Pecan
tion. An
Candy
pursue
Deluxe
an in-
action,
(T ex.App.-Dallas
tentional tort
writ
cause of
even when the
denied) (requiring
final
compensa-
commission award
first files for workers’
occurs).
tion,
before
premised
election of
Open
remedies
But
provi-
Courts
they too are
position
incorrect. The Court’s
sion of the Texas Constitution. Tex. Const.
faulty
application
I,
based on a
I,
of the election
art.
13.
guarantees
Article
Section 13
"personal
Embodied within the
place
current Act is a
employment
tached to the
or otherwise
animosity”
exception.
employment
incident to the
are factors in the
TexXab.Code
406.032(1)(C).
exception
combination,
helps
catastrophic
consequent injury
delineate
exactly which actions occur within the
employment.”
course
arises out
Nasser v. Securi-
employment
ty
(Tex.1987);
and those that do not.
Ins.
see
*10
Notwithstanding
exception,
this
when an em-
Garcia v. Texas Indem. Ins.
146 Tex.
assault,
ployee
(1948).
suffers a direct
if "conditions at-
209 S.W.2d
ed).
Tool intended
Had this Court
Reed
common
a cause of action for
law
precluded
common
hold that the
torts,
to
notwithstanding the
law intentional
well, we would
torts as
actions
intentional
Compen
coverage provided by the Workers’
case that
specifically noted in that
not have
Act,
precluding
estoppel
or
thus
sation
guaranteed compen-
exchanging
of
policy
argument. Castleberry v. Gools
ratification
only to
for common law actions
sation
(Tex.
by Building Corp.,
617 S.W.2d
injuries.
Id.
negligence and other accidental
1981).
determining the constitutionali
When
the Act
acknowledges that
Compensation Act in
The Court
ty of a former Workers’
apply
to
to or affect
not intended
“was
Light
v. Texas Power &
Middleton
intentional
employee’s
law claim for
common
held:
employer.”
S.W.2d at
against his
tort
evi-
Compensation Act’s]
[The Workers’
by
But
skirts
issue
the Court
operation
purpose
dent
was to confine its
Act,
of the’ current
which
ignoring
terms
injuries
scope
and
only
to
accidental
its
injury
compensation suffered
any
allows
I,
Article
to
limited....
to
[Due
be so
employment.
and
of
within the course
Constitution,]
Section 18 of
Texas
406.031(a)(2).
injury
An
Tex.Lab.Code
power
deny
Legislature is
to
without
scope of
within
course and
em-
suffered
right
resort
the courts
citizen
to
to
include
as well as
ployment could
accidental
any
of
to
for the redress
intentional
injuries provided the
suf-
intentional
Act does
person
another....
This
employment”
not
is “incident to
fered
class
redress
affect
narrowly
“personal
covered
drawn
n wrongs,
wrongs.
injuries,
or
Nasser,
animosity” exception.
injuries
accidental
or
which it deals are
cursorily
attempts to
at 19. The Court then
wrongs.
by holding that
ex-
dispose of the issue
(Tex.1916)
Act,
(emphasis
add
clusivity provision
S.W.
of the
ed).
408.001(a),
I,
interpret
to
from com-
Article Section 13
shields an
Courts
liability
if
is allowed
“legislative
withdrawing com mon
prohibit
action
paid
the Act.
an insured’s lawsuit a third
recoup payments made the carrier. Ortiz Casualty
v. Great S. Fire & Ins. prevents FIRESTONE PRODUCTS STEEL COM receiving recovery insured from double PANY, formerly a Division the Fire injuries. for the same Id. The Court cor- Company, stone Tire & Rubber Accuride rectly principle states that “[a]n insurer Corporation, the Firestone Tire & Rub subrogation if [equitable] entitled to Company, Bridgestone/Fire ber the insured’s loss is in excess the amounts stone, Inc., Petitioners, and the third recovered the insurer party causing the loss.” S.W.2d at 604 343). Ortiz, (quoting But Manuel BARAJAS and Luisa then, course, yet Barajas, Respondents. would not the insured recovery. According- have received a double 95-0382. No. ly, subrogation equitable doctrine of can Supreme of Texas. Court be to the workers’ possibility guard against scheme to Argued Oct. 1995. unjust compensation, prevent enrich- double Decided June 1996. ment, preserve equity. Rehearing Sept. Overruled IV
Concluding, my public it is view that the
policy behind the workers’