Plaintiff asserts state law claims against both Hopkins County and Individual Defendants; therefore, the Court finds that both claims are subject to the Election of Remedies provision of the TTCA. See University of Texas M.D. Anderson Cancer Ctr. v. Stewart, 2017 WL 2590230 at p. * 4 (Tex. App.—Houston [1st Dist] June 15, 2017, no pet.) (mem. op.) (granting a motion to dismiss a gross negligence claim under the Election of Remedies provision of the TTCA following a motion by a governmental unit). The Court finds that Plaintiff's state law claims against Individual Defendants should be dismissed for two reasons.
See Tex.R.App.P. 43.2(c); Univ. of Tex. M.D. Anderson Cancer Ctr., v. Stewart, No. 01-16-00865-CV, 2017 WL 2590230, at *4 (Tex. App.-Houston [1st Dist.] June 15, 2017, no pet.) (mem. op.) (reversing and rendering after trial court denied Section 101.106(e) motion to dismiss).
The City also argues that our prior opinion contravened University of Texas M.D. Anderson Cancer Center v. Stewart. See No. 01-16-00865-CV, 2017 WL 2590230 (Tex. App.-Houston [1st Dist.] June 15, 2017, no pet.). However, like Perilla-Vargas, the issue in Stewart was whether the trial court erred by dismissing claims against an employee under the election-of-remedies provision in TTCA section 101.106(e). Id. at *1.
In reaching its conclusion, the court stated, "By filing a Section 101.106(e) motion to dismiss, a governmental unit ‘effectively confirms the employee was acting within the scope of employment and that the government, not the employee, is the proper party.’ " Id. (quoting Ngakoue , 408 S.W.3d at 358, and citing Univ. of Tex. M.D. Anderson Cancer Ctr. v. Stewart , No. 01-16-00865-CV, 2017 WL 2590230, at *4 (Tex. App.—Houston [1st Dist.] June 15, 2017, no pet.) (mem. op.) ). The court also stated,
In The University of Texas M.D. Anderson Cancer Center v. Stewart, Stewart sued M.D. Anderson and six doctors it employed for gross negligence in the treatment of his wife. No. 01-16-00865-CV, 2017 WL 2590230, at *1 (Tex. App.—Houston [1st Dist.] June 15, 2017, no pet.) (mem. op., not designated for publication). The trial court denied M.D. Anderson's motion to dismiss the six doctors pursuant to section 101.106(e) after Stewart argued that it was improper to dismiss the doctors because they were not acting in the course and scope of their employment.
By filing a Section 101.106(e) motion to dismiss, a governmental unit "effectively confirms the employee was acting within the scope of employment and that the government, not the employee, is the proper party." Tex. Adjutant Gen.’s Office v. Ngakoue , 408 S.W.3d 350, 358 (Tex. 2013) ; see alsoUniv. of Tex. M.D. Anderson Cancer Ctr. v. Stewart , No. 01-16-00865-CV, 2017 WL 2590230, at *4 (Tex. App.—Houston [1st Dist.] June 15, 2017, no pet.) (mem. op). "The role of subsections (e) and (f) is to ensure that tort claims within the purview of the Act do not proceed against a government employee for conduct within the scope of his employment.