*3 each arm above the to free elbow Ramirez C.J., Before ENOCH and OVARD and from the machine. While he was still in BURNETT, JJ. hospital injuries, applied for these compensation for and received workers’ OPINION ON REHEARING benefits. OVARD, Justice. Shop, He then sued Brittain Machine Dal- opinion January We withdraw our Electric, las employer and his Pecan De- judgment our vacate of that date. alleged negligence, gross negli- luxe. He opinion. This is now the Court’s se, gence, negligence per liability and strict requires This case us to decide a against whether causes of action Brittain and Dallas application acceptance worker’s for and alleged Electric. He an intentional tort inju- benefits for an against cause of action Pecan Deluxe. Dal- ry liability intentional tort and strict against bars las a cross-action its Electric filed against employer seeking causes of action his Deluxe contri- codefendant Pecan injury. summary the same Antonio Ramirez and Deluxe moved for bution. Pecan Company, appeal relying Dallas Electric Inc. from on all issues on Ra- summary judgment granted receipt application favor of mirez’s for and of work- (Pecan Candy Company The Pecan Deluxe ers’ benefits. The trial court Deluxe). error, points appellants granted two Pecan Deluxe’s motion. Dallas granting assert that the trial court erred in Electric nonsuited its cross-action then name, against standing appeal Pecan Deluxe. The trial court dis- his had no but corporate appellant missed Ramirez’s suit Brittain and should be allowed to parties bond); Owen, Electric after the reached a Dallas at 884-85 amend agreement. (defendant settlement allowed to amend bond executed party not by defendant’s insurer who was

JURISDICTION suit). We address Pecan Deluxe’s first cross- rules, Under these whether Dallas challenges jurisdiction. it our point because proper party Electric is a to this complains Pecan that Ramirez and Deluxe jurisdiction does not affect this Court’s properly this Dallas Electric are not before appeal. Ramirez’s issue is wheth requests that this Court and we dismiss er Ramirez has established that Dallas *4 alleges appeal jurisdiction. for of It want appeal Electric filed the bond on behalf of an properly perfected that Ramirez never accidentally parties and omitted Ra both has no appeal and that Dallas Electric principal. mirez as a standing complain appeal. origi- It to on appeal pertinent part: in The bond states nally brought complaint our atten- this to pre-submission to in a motion dismiss. tion BOND ON APPEAL COST must appealing party

An be WHEREAS, in entitled and the above principal appeal on bond named as a pending in the 160th numbered cause or have some and must execute the bond County, Judicial District Court of Dallas authority for him legal one to act with Texas, signed an Order of Dismissal was Brown, 447 the bond. v. execute Owen August, of day on the 7th 1990 dismiss- (Tex.1969). there S.W.2d 885 Where ing Candy Company The Pecan Deluxe appeals of appellants, are several court herein, judgment from which Antonio acquires jurisdiction only appel toas those Company, Dallas Electric Ramirez and timely lants who have filed bond. Gov appeal the Court of desire to to Inc. Pannill, 561 520 erning Bd. v. S.W.2d Texas, Fifth District of Appeals (Tex.Civ.App. — Texarkana Dallas, of City Texas: n.r.e.). appellate jurisdic court has no The THEREFORE, We, NOW, Elec- attempted appeals by co-appel Dallas over tion Inc., Company, principal tric as and timely have not filed a bond. lants who (Tex. Company Fire of Westchester Insurance Lloyd, Duke v. Dallas, 1979, writ). Texas Expwy, no 4040 N. Central Civ.App. — Waco surety, acknowledge ourselves as Multiple appellants may perfect Candy pay Deluxe bound to to The Pecan filing one bond behalf of appeal an on Thousand Dol- Company, the sum One dismiss an appellants. We not all ($1000.00), by Rule 46 prescribed lars as appeal procedural defects of form or Appellate Proce- Rules of the Texas allowing opportunity substance without dure, Anthony Ramirez conditioned that Explor. the defect. & to correct Woods Inc., ap- Company, Dallas Electric Co., 528 Equip. v. Arkla Producing Co. appeal with prosecute the pellants, shall (Tex.1975). appellant An effect, which pay all other costs and shall accidentally omit that was who shows and the trial court have accrued jurisdiction-invoking cost bond from the ted and tran- of facts cost of the statement by adding the bond to amend has script. City it. v. McKin his name to Powell (emphasis added). (Tex.App. ney, 711 S.W.2d — Dallas Court, of this allowing response In an order This rule to ref’d writ supplemented Electric person Ramirez and Dallas applies even when amendment of Ramirez’s proper the record with the affidavit executing not a the cost bond was that Ra- State, attorney. affidavit states v. appeal. See Shults party he intended (sole appeal, to that (Tex.1984) share mirez intended 260, 260-61 on his bond only in to file the cost Dallas Electric holder, appeal bond who executed behalf, principal prove that his had the that Ramirez made omission as burden to light argues In of this an election of remedies. He was inadvertent. affidavit bond, and the in the statements cost we Pecan Deluxe did not meet this burden allowed Ramirez to amend the cost bond. because it to that there was a failed show Thus, jurisdiction we over Ramirez’s have final settlement himself and Pecan between appeal. carrier, Deluxe’s workers’ Liberty Company. Mutual Insurance addition, Pecan Deluxe re quests dismiss this for want that we Summary judgment may be ren Dallas Electric jurisdiction because has pleadings, depositions, dered if the complain standing about adverse admissions, (1) and affidavits show affecting party. a third judgment For a genuine issue as material there is no final, summary judgment be it must (2) moving party is enti fact and that the parties dispose of all and all issues. Teer tled to as a matter law. Duddlesten, (Tex. v. 166a(c); In Rodriguez Naylor R.Civ.P. 1984). not matter It does whether the trial dus., Inc., accomplishes court this one order or in a summary judgment A to eliminate seeks of orders. Runnymede Corp. series patently unmeritorious claims and untena *5 Plaza, Inc., 4, Metroplex 543 S.W.2d 5 defenses, deny party right ble not to a its 1976, ref’d). (Tex.Civ.App. writ — Dallas hearing to a full on the merits of real disposed The of Dallas dismissal Electric of Penn, issue of fact. v. 151 Gulbenkian party the last and issue before the trial 412, 416, (1952). 931 252 S.W.2d Electric, party court. Dallas as a judgment, standing appeal. has to Stroud summary pro In judgment Stroud, (Tex.App.— 620 v. 733 S.W.2d ceeding, Pecan Deluxe as movant must ei 1987, writ). Dallas no Once Dallas Electric (1) disprove ther at least one element of bond, timely appeal gained juris filed a we recovery each of theories of or Ramirez’s appeal. diction over this (2) plead conclusively and show each essen standing complain Dallas Electric’s to of defense, tial element of an affirmative take-nothing Ramirez thereby rebutting of City his cause action. is a different issue from Dallas Electric’s Auth., Houston v. Basin Clear Creek of 589 standing jurisdiction or our over (Tex.1979). 679 A sum Indep. this case. Buckholts Dist. See Sch. mary judgment disposing for Pecan Deluxe Glaser, (Tex.1982). v. if, proper only of the entire case is as a Although may prevent the law Dallas Elec- law, succeed matter of Ramirez could not recovering, tric from we will not dismiss any theory pleaded. Delgado See jurisdiction. for want of Bonniwell v. See Burns, 656 S.W.2d Corp., Beech 663 S.W.2d Aircraft (Tex.1984)(settling tortfeasor had no In sum support of its motion for indemnity joint or contribution from non- mary judgment, Deluxe offered the Pecan tortfeasor). settling Pecan We overrule Caironi, senior affidavits of Marianne cross-point. Deluxe’s first Mutual, supervisor Liberty claims of and Brigham, president of Pecan De Bennie TORT UNDER INTENTIONAL luxe. Attached to affidavit is an Caironi’s WORKERS’ COMPENSATION compensa “El” claim form for workers’ ACT signed by days six tion benefits Ramirez error, point injury. Brigham Ramirez as- after the testified that In his first granting injury and that that the trial court erred Ramirez’s was work-related serts compen summary judg- Liberty motion for Mutual is Pecan Deluxe’s Pecan Deluxe’s re- testified that Liber responds Pecan Deluxe that the sation carrier. Caironi ment. weekly compensation pay compensation ty Mutual made ceipt of workers’ benefits paid for his reason intentional tort cause of ments to Ramirez bars Ramirez’s expenses. argues necessary Pecan Deluxe medical Ramirez able action. the exercise of an intelli position company in the dies essential to An affiant’s gent or knew of show how the affiant learned choice. Id. at in the the facts contained affidavit. “election of remedies” has been term Fulgham Co. v. Stewart Title Jackson T. fact situations applied to various distinct 128,130 (Tex.App.— Guar. involving compensation workers’ claims. Brigham, as Dallas writ ref’d situation, injured it refers to an one fact president, would know of the existence under electing worker between remedies and the injury work-related such serious common Act or the Workers’ identity insurance carri of Pecan Deluxe’s Inc., negligence. See Grimes v. Jalco law Caironi, supervisor, claims er. as senior (Tex.App. — Houston as El claim form a busi can attest n.r.e.); see also [1st Dist.] pay Liberty Mutual’s ness record and to Int’l, F.2d Hospital Corp. Ferguson policy of the be ments under the terms Cir.1985). (5th final from A award De Deluxe. Pecan tween itself and Pecan Compensation Commiss Texas Workers’ applied for Ramirez luxe established that ion,1 judicial including the exhaustion an benefits received workers’ award, controlling on is review of that injuries he was conva these while still type has made this whether a worker is evi lescing hospital. There Tex.Rev.Civ.Stat.Ajjn. arts. election. See commission or set dence a final award 8308-2.01, (Vernon Pamph. 8308-6.61-6.64 Liberty with Mutual. tlement 1992); In an Grimes, 630 at 285. Rights guarantees an The Texas Bill of situation, it refers to an election other fact against an em employee’s cause of action claiming between injuries. Tex.Const. ployer for intentional occupational injury for the as benefits I, 13; Goolsby Bldg. Castleberry v. for the claiming general medical benefits *6 (Tex.1981); 665, 666 Corp., 617 S.W.2d non-occupational. See Bocane- injury as Co., v. Mfg. Grove Cardinal Constr. Co. 850, at gra, S.W.2d 853. 605 (Tex.Civ.App 155 . —Hous The ton [14th Dist.] of remedies” doc The “election exempts Act em Workers’ applied to the choice trine has also been liability based on ployers from common law seeking damages injury for an between negligence, but “does gross negligence under an intentional tort under the Act or exempt from common law employers not Downing, 578 theory. v. See Porter injuries.” liability for intentional Castle (Tex.Civ.App. 461 — Texarkana 666; at see Tex.Rev.Civ. berry, 617 S.W.2d n.r.e.); Ferguson, 1979, writ ref’d see also (now (Vernon 1967) 8306, 5 Stat.Ann. art. Although n. the Texas at 275 10. 769 F.2d 8308-4.01(b) Tex.Rev.Civ.Stat.Ann. longer applies term the Supreme Court (Vernon see also Middleton Pamph.1992)); situa of remedies” this second “election Co., 108 Tex. Light & v. Texas Power tion, recognizes a claim now that the court (1916). 185 S.W. for inten Act and a claim made under the Massey mutually are exclusive. tional tort doc election of remedies The Co., 652 S.W.2d Steel Armco to relief when may constitute bar trine (Tex.1983). held that a The court worker choice between an informed one exercises accepts claims and benefits under who remedies, rights, or states or more two injuries claim that the same Act cannot to consti inconsistent as that are so facts An from intentional tort. resulted an Id. Bocanegra v. injustice. Aet manifest tute both the injured can recover under (Tex. worker Ins. na Life employ only if Act and intentional tort inconsistent 1980). between choice One’s sep er an act that is committed intentional to an election not amount does remedies it compensation claim and arable from action unless further will bar Ar produced independent injury. See and clear under with a full made choice is Am., 748 N. facts, Insurance Co. problem, and reme anda v. standing of the Accident Board. Previously the Industrial (Tex.1988); Grove, Original Plaintiff's Second Amended Pe- petition only S.W.2d at 154-55. tition. That asserted an inten- tional tort cause of action. however, Massey, injured The trial court shall render worker received a final commission award. judgment expressly on the issues out in set accep Massey, See 652 S.W.2d at 933. The summary judgment the motion for or in an tance of a final commission raises a award response. answer or other presumption injured that the worker made 166a(c). grant R.Civ.P. A court not an informed choice between available statu summary judgment as a matter of law on a id.; tory judicial remedies. cause of action not addressed a sum Grimes, 630 S.W.2d at 285. If Ramirez mary judgment proceeding. Chessher award, accepted had a final commission Co., 658 Southwestern Bell Tel. remedy statutory would have elected his argument, In oral Ra injuries, legal for his which would avoid a negli gross mirez’s counsel conceded that Middleton, battle with Pecan Deluxe. See gence was not before this Court on 560; at S.W. Tex.Rev.Civ.Stat.Ann. only against because he asserted it defen (Vernon Pamph.1992). arts. 8308-6.01-6.64 dants other than Pecan Deluxe. Ramirez’s any legal presumption, As with the burden attorneys and Dallas Electric’s stated that prove then shifts to Ramirez to that even petition an amended filed after Pecan De acceptance of a final commission award summary judgment, luxe’s motion for but was not an informed election. See Bocane judgment, pleaded before the trial court’s gra, 605 S.W.2d at 852-53. liability intentional tort and strict causes of summary judgment proved evidence petition action Pecan Deluxe. That applied that Ramirez for and received However, appellate is not in the record. workers’ in- benefits his the record does contain Dallas Electric’s juries. Ramirez days made that claim six response summary judgment motion. sustaining injuries after these while still response That addresses intentional tort recovering hospital. in the There is no liability and strict claims. From the state summary judgment showing evidence counsel, argument of the record and we he made an informed election between conclude that the trial court’s benefits and recov- *7 encompasses liability the strict and inten ery under an intentional tort cause of ac- gross negli tional tort claims but not the tion. We hold that Pecan Deluxe did not gence negligence per se claims. prove that Ramirez made an informed elec- Electric, response in Dallas its precludes proceeding tion that him from summary judg Pecan Deluxe’s motion for theory. into court under an intentional tort ment, accept urged the trial court to the point sustain his We first of error. considering capacity” “dual doctrine when liability. this Pecan Deluxe’s tort Under LIABILITY STRICT UNDER THE doctrine, to its employer an be liable WORKERS’ COMPENSATION in occupies, if it addition to its employee ACT employer, capacity a second capacity as error, point obligations independent In his second Ramirez confers on it that grant- imposed employer. that the trial court erred in on it as an asserts of those Indus., Inc., ing summary judgment dismissing Spinks 602 S.W.2d claims v. Cohn (Tex.Civ.App. in not addressed Pecan Deluxe’s motion. 103 writ — Dallas brief, n.r.e.); 2A Arthur Larson, In his Ramirez asserts that the mo- ref’d The Law Compensation 72.81, specifically addressed the inten- at 14- tion § of Workman’s (1990). capacity tort cause of action but did not ad- 112 The dual doctrine at tional se, allegations negligence per tempts exclusivity provi the dress his to circumvent negligence, liability. gross and strict Pe- sions of the workers’ laws. 103; Cohn, summary judgment for 602 at see also Tex.Rev. can Deluxe moved S.W.2d (Vernon Supp. against byit art. 8308-3.08 on all claims asserted Ramirez Civ.Stat.Ann. 1992)(previously Appellate art. under Texas Rule of Procedure Tex.Rev.Civ.Stat.Ann. (Vernon 1989)). 3a Dallas Electric damages Before 84. we can assess under urged exception alleges it this because findings: rule we must make two directly in Pecan Deluxe was involved the appellant brought delay for the this design, engineering, manufacture of and sufficient and without cause. Mid-Conti grinder. candy the Whatley, Casualty nent Co. S.W.2d 1987, writ); (Tex.App. adopted capacity Texas has the dual doc- — Dallas Tex.R.App.P. look see 84. The court is “to acting trine for an executive officer when point case from the of view of the at the ordinary as employee. Harris v. Casu- advocate and determine whether has Exch., Reciprocal alty grounds to the case reasonable believe that Harris, company a officer City would be reversed.” Beckham v. working night the man- was killed while as Co., ager Conditioning Air company for a that the owned Wide club operated. (Tex.App. Id. at 718-19. The court writ ref’d — Dallas “employ- exist, grounds held that the officer was also an If reasonable do not and, therefore, may impose damages ee” at the time of his death then the court by the Workers’ covered against appellant upon the affirmance or Act. Id. judgment. Whatley, modification 742 S.W.2d at 479. previous cases that have

The two Texas ly capacity dual considered whether the gains advantage appellant Neither applies employers have declined doctrine delaying proceedings. these Ramirez adopt it. Davis Sinclair Ref. recovery injury. seeks serious Ra- (Tex.App. S.W.2d [14th — Houston presented legitimate challenge to mirez n.r.e.); Cohn, Dist.] compen- in this of workers’ the cases area agree that at 103-04. We Texas Nothing in law. the record indicates sation against judicial currently law mandates Electric took this that Ramirez Dallas Davis, adoption of this doctrine. 704 appeal delay or without sufficient 415; Cohn, 602 at 104. at Deluxe's second cause. We overrule Pecan extensively legislature revised and the cross-point. Compensation Act Workers’ Pecan Deluxe failed to meet its Because (Vernon arts. 8307-8309 Rev.Civ.Stat.Ann. proof on made whether Ramirez burden Pamph.1992). It left intact exclusive remedies, we reverse the an election “recovery of remedy provision that his intentional trial court’s under this benefits only. affirm in tort cause of action We remedy employee of an is the exclusive Act part part and reverse trial court’s employer_” Tex.Rev. ... 8308-4.01(a) (Vernon this cause for a judgment. We remand Civ.Stat.Ann. explicit intentional tort left intact an new trial on Ramirez’s Supp.1992). It also *8 damages for inten exemplary for exception claim. in gross negligence or death

tional acts art. 8308- cases. Tex.Rev.Civ.Stat.Ann. ENOCH, Justice, concurring. Chief (Vernon legisla If 4.01(b) Supp.1992). the I reached the concur with the result exceptions, it any intended other ture had However, disagree I the majority. with Cohn, 602 them. would have enacted a claim made majority’s contention that it We do not believe is at 104. Compensation Act and under the Workers’ a new create proper judicial function to mutually ex- tort claim are an intentional ground recovery employees for when (cit- Opinion at 106-107 Majority clusive. recently to do so. We legislature declined Co., ing Massey Steel dictum v. Armco point of error. appellants’ second overrule 932, (Tex.1983)). And I APPEAL FRIVOLOUS disagree that the election further therefore applicable in this doctrine is Pecan De of remedies cross-point, In its second damages case. that it is entitled to luxe asserts September injuries

On the date of Ra- are wrongs. accidental or What injury, remedy provi- mirez’s the exclusive we know and denominate as the cause of sion of the Texas Compensation Workers’ arising injury action from an accidental provided employee Act that an of a sub- purely is the creation of the common law. the Act scriber to had no of action liability upon It is a common law founded against employer damages per- his for negligence; the common law doctrine of injuries. sonal art. Tex.Rev.Civ.Stat.Ann. for the rule of but the common 8306, 3(a) (Vernon Supp.1986) (now Tex. § law, expressed also in stat- —sometimes 8308-4.01(a)(Vernon art. Rev.Civ.Stat.Ann. utes, liability would be no —there Supp.1992)). The statute further stated: injury, such an and hence no cause of part “No of this Section is intended to action. lessen or employee’s existing alter denying employee Therefore in of a rights against or cause of action either his subscribing employer, or his beneficia- subscriber, employer, par- its third ries, any cause of action for accidental ty.” art. Tex.Rev.Civ.Stat.Ann. injuries, simply changes this Act 3(f) (Vernon Supp.1986). One such exist- § liability upon common law rule of ing cause of action is the common law subject. It in effect declares that such injuries. action for intentional See Reed employers longer shall no be liable as Copelin, Tool Co. v. rule, under that but shall be liable ac- (Tex.1980). cording prescribed by to the rule the Act. jurisdictions, In other employees suing Middleton Light v. Texas Power & employers for intentional torts are said to (1916) (em- Tex. 185 S.W. 560-61 excepted be from exclusivity provisions of phasis added). workers’ statutes because injuries distinguished intentional are from recently, Supreme More our Court stat- injuries. accidental 2A ARTHUR LARSON, Compensation ed: “The Texas Workers’ Compensation The Law of WORKMEN’S § remedy Act is the exclusive for work-relat- (1990). recognize at 13-1 I Texas injuries ed exception with the of intentional employee required is not prove injury.” Copelin, Reed Tool Co. injuries incurred accidental to receive (Tex.1985). The Court con- benefits and that he bring cluded that a worker could an inten- only need show that he injury sustained an employer tional tort claim his if his during the course of employment. his employer certainty knew awith substantial (Vernon art. 3b§ Rev.Civ.Stat.Ann. injured. that the worker would be Id. at 1967) (now Tex.Rev.Civ.Stat.Ann. art. 408; Indus., Rodriguez Naylor see also (Vernon Supp.1992)). 8308-3.01 Neverthe- Inc., less, judicial interpretation of the Texas if brought I am aware that a claim under Compensation Workers’ Act since its enact- the Workers’ Act and a inment 19131 has characterized compen- claim for intentional tort are not considered injury injury: sable as an accidental exclusive, mutually then a worker would purpose evident to con- was [The Act’s] required not be to make an election be operation inju- fine its accidental cause the two claims would not result in scope ries and its is to be so limited. * * * inconsistent remedies so as to constitute I, 13,] to Tex.Const. [Due injustice. Bocanegra manifest v. Aet Legislature power deny is without the *9 848, (Tex. na Ins. right the citizen the resort Life 1980). employees But would not receive courts for the redress of intentional * * * recoveries under the Act and for injury person by to his double another. intentional tort claim because the right This Act does not the subscrib affect of er’s insurer has a to intervene in wrongs. redress class the of injuries, wrongs, or with which it deals intentional tort and lawsuit ask for recov R.S., 179, originally Leg., 1. The Act was called the Workmen’s 33rd ch. 1913 Tex.Gen. September Act. Act effective Laws 429-38. ery any judgment to extent of the the rights. statutory subrogation

insurer’s 8307, 6a(a) art. § Tex.Rev.Civ.Stat.Ann. (now

(Vernon Supp.1986)2 Tex.Rev.Civ. (Vernon Supp. art. 8308-4.05 StatAnn. 1992)); Employers v. Texas Ins. Chambers

Ass’n, (Tex.App . —Dal n.r.e.); las ref 'd v. Fer writ Carter

ris, (Tex.Civ.App.—

Amarillo majority

Although agree I the with pursue his ought

Ramirez to be allowed tort, disagree I with

claim for intentional permit majority’s conclusion that would

the of to be a

the election remedies doctrine his

defense to claim. Anthony

Albert MATHEW a/k/a

Mills, Appellant, Texas, Appellee.

The STATE

No. 13-91-189-CR. Texas, Appeals

Court

Corpus Christi.

July pay the 6a(a) said costs and part: itself and provides, in reimburse § 2. Article paid to in- shall be the so recovered by excess this law compensation be claimed under If ..., jured employee his beneficiaries. or employee the association injured then the 6a(a) (Vernon injured rights subrogated art. shall be employee, Tex.Rev.Civ.Stat.Ann. name of in- enforce as an Supp.1986). is defined "Association" liability of employee said injured pay- ... company to insure the authorized surance recovery is person, in case the injured employees. other compensation to ment greater paid assumed than that (Vernon sum 1§ Tex.Rev.Civ.Stat.Ann. *10 ..., employee then out association 1967). shall the association so recovered sum