Opinion
No. 05-07-01538-CV
Opinion issued April 21, 2009.
On Appeal from the 101st Judicial District Court, Dallas County, Texas, Trial Court Cause No. 99-04952-E.
Before Justices BRIDGES, FITZGERALD, and LANG.
MEMORANDUM OPINION
This case considers whether an employer may raise the exclusive remedies defense under the workers' compensation act when it has failed to provide any notice of workers' compensation insurance coverage or notice of an employee's right to opt-out of such coverage. For the reasons set forth below, we conclude an employer may raise the exclusive remedies defense and affirm the judgment of the trial court.
Background
Murlyn Graham, an employee of appellees AMS Construction Company, Inc. d/b/a AMS Staff Leasing, died as a result of an on-the-job accident. AMS was a subscribing employer to the workers' compensation act at the time of the accident and, as a result, Mr. Graham's spouse received statutory benefits under the Act.
Appellants Michael D. Graham, Bryan K. Graham, and Nathan L. Graham brought this lawsuit in order to assert a common law cause of action against their deceased father's employer, AMS. AMS, in its second amended answer to the lawsuit, asserted the exclusive remedies defense under the workers' compensation act. The Grahams filed a traditional and no evidence partial motion for summary judgment on AMS's affirmative defense, stating the evidence conclusively showed AMS failed to give Mr. Graham his notice of opt-out rights or, alternatively, there was no evidence that AMS gave the required notice. AMS then filed a traditional motion for summary judgment and argued, among other things, that the Grahams' claims against AMS were barred by the exclusive remedy provision of the workers' compensation act. The trial court granted AMS's summary judgment motion, stating that "the failure to provide an employee with notice of his right to opt-out of the workers' compensation system doesn't deprive an employer of an otherwise valid workers' compensation exclusive remedies defense."
The parties filed a joint motion for entry of final judgment. In its final judgment, the trial court noted that "[a]ll claims against all parties have been disposed of either by agreement of the parties, by voluntary dismissal, or by the Court's various summary judgment rulings." Therefore, the trial court dismissed the Grahams' claims against AMS with prejudice "based on the Court's summary judgment ruling that the failure to provide an employee with notice of his right to opt-out of the workers' compensation system doesn't deprive an employer of an otherwise valid workers' compensation exclusive-remedies defense."
The Grahams appeal the final judgment of the trial court.
Standard of Review
The trial court granted AMS's traditional motion for summary judgment based upon its exclusive remedies defense. AMS's assertion that the exclusive remedy provision of the workers' compensation act applies is an affirmative defense. Vega v. Silva, 223 S.W.3d 746, 748 (Tex.App. 2007, no pet.). A defendant is entitled to summary judgment on an affirmative defense if the defendant conclusively proves all the elements of the affirmative defense. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999); Tex. R. Civ. P. 166a. To accomplish this, the defendant-movant must present summary judgment evidence that establishes each element of the affirmative defense as a matter of law. Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 121 (Tex. 1996). When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant's favor. IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004).
Discussion
On appeal, the Grahams do not challenge that AMS has established the elements of its exclusive remedies defense: (1) AMS was a subscriber to workers' compensation coverage at the time of Mr. Graham's injury and (2) Mr. Graham was employed by AMS at the time of his work-related accident which resulted in his death. Rather, in a single issue, the Grahams argue AMS was not entitled to summary judgment under the exclusive remedies provision because it failed to comply "with any notice-of-right-to-opt-out provisions required by the Texas Labor Code."
Recovery of workers' compensation benefits is the exclusive remedy of an employee covered by workers' compensation insurance coverage or a legal beneficiary against the employer for the death of or a work-related injury sustained by the employee. TEX. LAB. CODE § 408.001(a) (Vernon 2006); Exxon Corp. v. Perez, 842 S.W.2d 629, 630 (Tex. 1992); s ee also Martinez v. H.B. Zachry Co., 976 S.W.2d 746, 748 (Tex.App.-Houston [1st Dist.] 1998, writ denied) (to invoke the exclusive remedies defense, an employer must establish it was a subscriber at the time of the employee's injury).
The notice requirements of the Texas Labor Code provide, in pertinent part, as follows:
Employer Notice to Employees; Administrative Violation
(a) An employer shall notify each employee as provided by this section whether or not the employer has workers' compensation insurance coverage.
(b) The employer shall notify a new employee of the existence or absence of workers' compensation insurance coverage at the time the employee is hired.
(c) Each employer shall post a notice of whether the employer has workers' compensation insurance coverage at conspicuous locations at the employer's place of business as necessary to provide reasonable notice to the employees. The commissioner may adopt rules relating to the form and content of the notice. . . .
(e) An employer commits an administrative violation if the employer fails to comply with this section.
Tex. Lab. Code Ann. § 406.005 (Vernon 2006). Contrary to the Grahams' suggestion in their issue on appeal, the labor code does not require notice of the right to opt-out.
Instead, the administrative code states that within the notice of coverage, the following statement should be included:
You may elect to retain your common law right of action if, no later than five days after you begin employment or within five days after receiving written notice from the employer that the employer has obtained coverage, you notify your employer in writing that you wish to retain your common law right to recover damages for personal injury. If you elect to retain your common law right of action, you cannot obtain workers' compensation income or medical benefits if you are injured.
28 Tex. Admin. Code § 110.101(a)(5) (2000) (Tex. Dept. of Ins., Covered and Non-Covered Employer Notices to Employees). AMS does not dispute the Grahams' assertion that it failed to provide notice of coverage to Mr. Graham and, thereby, failed to provide notice of the right to opt-out of such coverage. Rather, AMS argues their affirmative defense under the Act does not hinge on whether notice has been provided to the employee. We agree with AMS.
In Wesby v. Act Pipe Supply, Inc., 199 S.W.3d 614, 618 (Tex.App. 2006, no pet.), our court concluded that while the current statute requires employers to provide notice to employees that they are covered by workers' compensation insurance, "failure to provide notice will not bar workers' compensation coverage or application of the exclusive remedy provision." Under section 406.005 of the labor code, failure to notify an employee of coverage constitutes an administrative violation, punishable only by fine. Id. (citing Esquivel v. Mapelli Meat Packing Co., 932 S.W.2d 612, 616 (Tex.App. 1996, writ denied); Tex. Lab. Code Ann. §§ 406.005(e), 415.022)). We concluded in Wesby, therefore, that the exclusivity provision of the Act does not hinge on whether notice has been provided to the employee. Wesby, 199 S.W.3d at 618-19.
The Grahams, in their brief, invite us to revisit our decision in Wesby under the plain language of the Act and due to policy considerations. We decline to do so. As recently noted by the Southern District of Texas, Texas state courts have uniformly ruled that workers' compensation coverage and the exclusivity provision under the law as amended do not hinge on whether notice has been provided to the employee. See Bradley v. Phillips Chemical Company, 2007 WL 1302403, *3 (S.D. Tex. April 30, 2007) (citing Wesby, 199 S.W.3d at 618; Esquivel, 932 S.W.2d at 616; Blazik v. Foley's, Inc., 1998 WL 788848, *3 (Tex.App.-Houston [1st Dist.] 1998, no pet.) (all stating the exclusivity provision of the Act does not hinge on whether notice has been provided to the employee)); see also Winn v. Panola-Harrison Electric Cooperative, Inc., 40 F.Supp.2d 850, 852 (E.D. Tex. 1998) (citing Esquivel and noting the application of the exclusivity provision, even when proper notice had not been given).
Based upon our decision in Wesby, we conclude AMS was entitled to summary judgment as a matter of law. Tex. R. Civ. P. 166a; Ryland, 924 S.W.2d at 121. We, therefore, overrule the Grahams' first issue.
The Grahams contend that even if we decline to revisit Wesby, AMS failed to produce evidence it provided constructive notice to Mr. Graham by filing the proper papers with the Texas Workforce Commission and we should reverse the summary judgment in favor of AMS. However, the Grahams raise this argument for the first time on appeal. The argument is, therefore, waived and we need not address it. State Bd. of Ins. v. Westland Film Indus., 705 S.W.2d 695, 696 (Tex. 1986); Collins v. City of Corpus Christi, 188 S.W.3d 415, 423 (Tex.App. 2006, no pet.).
Having overruled the Grahams' only issue on appeal, we affirm the judgment of the trial court.