Opinion issued February 23, 2012.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-11-00668-CV
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Juan Garcia, Appellant
V.
AZZ INCORPORATED, Appellee
On Appeal from the 189th District Court
Harris County, Texas
Trial Court Case No. 20164531
MEMORANDUM OPINION
This appeal arises from a summary
judgment granted in favor of AZZ Incorporated (AZZ), the former employer of
Appellant Juan Garcia. Garcia sued AZZ
for negligence and gross negligence after Garcia claimed he sustained multiple
workplace injuries at AZZ. AZZ filed a
motion for summary judgment, asserting that Garcia’s suit was barred by the exclusive
remedy provision of the Texas Workers’ Compensation Act (the “Act”). See Tex. Lab. Code Ann
§ 408.001 (West 2006). The trial court granted the motion
and Garcia appealed.
We affirm.
Background
Garcia was employed by AZZ for approximately six weeks before he resigned in September 2010. In his affidavit, which he filed in response to AZZ’s motion for summary judgment, Garcia averred that he sustained three work-related injuries while working at AZZ: two back injuries and a burn. Garcia further avers that, although he repeatedly asked his supervisors if he could be seen by a doctor, he was told to keep working or be fired, and that he was never provided access to a doctor or told how to see one. Garcia’s affidavit concludes: “I stopped working at AZZ because of my injuries, for which I was provided no medical care by AZZ, nor by any person or organization understood by me to be associated with AZZ.”
Garcia sued AZZ shortly after he resigned, alleging claims of negligence and gross negligence. In its answer, AZZ generally denied Garcia’s allegations and asserted that Garcia’s claims are barred by the exclusive remedy provision of the Act. See Tex. Lab. Code Ann § 408.001. Garcia filed a supplemental petition in which he alleged that the doctrine of quasi-estoppel prevents AZZ from asserting the exclusive remedy defense because AZZ allegedly took a position inconsistent with the defense when it prevented Garcia from obtaining medical care for his injuries.
AZZ moved for summary judgment. Its summary judgment evidence established the applicability of the exclusive remedy provision, i.e., that Garcia was an employee who was covered by a workers’ compensation policy at the time of his injury. Garcia did not dispute that AZZ’s evidence established the applicability of the exclusive remedy provision. Instead, Garcia argued that the doctrine of quasi-estoppel prevents AZZ from availing itself of the defense. The trial court granted AZZ’s motion for summary judgment, and Garcia appealed.
Propriety of Summary Judgment
A. Standard of Review
We review a trial court’s summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). A defendant is entitled to summary judgment on an affirmative defense if the defendant conclusively proves all the elements of the affirmative defense. Tex. R. Civ. P. 166a; Havlen v. McDougall, 22 S.W.3d 343, 345 (Tex. 2000); Rhone–Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999). To accomplish this, the defendant 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). The burden then shifts to the nonmovant to raise an issue that would preclude summary judgment. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678–79 (Tex. 1979); see also G.C. Bldgs., Inc. v. RGS Contractors, Inc., 188 S.W.3d 739, 742 (Tex. App.—Dallas 2006, no pet.) (“If the defendant’s motion and summary judgment evidence establish its right to judgment as a matter of law, the burden then shifts to the party opposing the motion to raise a genuine issue of material fact or show the defendant’s legal position is unsound.”).
B. Applicable Law
1. The Act’s Exclusive Remedy Provision
“The Texas Workers’ Compensation Act is the exclusive remedy for work-related injuries with the exception of intentional injury.” Reed Tool Co. v. Copelin, 689 S.W.2d 404, 406 (Tex. 1985); See Tex. Lab. Code Ann. § 408.001(a) (“Recovery of workers’ compensation benefits is the exclusive remedy of an employee covered by workers’ compensation insurance coverage . . . .”). The exclusive remedy provision is an affirmative defense that the defendant must plead and prove. See Exxon Corp. v. Perez, 842 S.W.2d 629, 630–31 (Tex 1992). To establish the exclusive-remedy defense, a defendant must show (1) that it was the plaintiff’s employer within the meaning of the Act and (2) that it was covered by a workers’ compensation insurance policy. W. Steel Co. v. Altenburg, 206 S.W.3d 121, 123 (Tex. 2006).
Courts have recognized narrow exceptions to the exclusive remedy defense. See, e.g., Medina v. Herrera, 927 S.W.2d 597, 601 (Tex. 1996) (discussing narrowness of intentional tort exception); Urdiales v. Concord Techs. Del., Inc. 120 S.W.3d 400, 406 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (discussing “personal animosity” exception). But it is well settled that the exclusive remedy provision applies and bars claims of negligence and gross negligence even in cases in which the employer fails to provide an employee with notice of the availability of workers’ compensation benefits, as required by the Act. See Tex. Lab. Code Ann. § 406.005 (West 2006) (failure to provide notice of benefits constitutes an administrative violation punishable by fine); Wesby v. Act Pipe & Supply, Inc., 199 S.W.3d 614, 618 (Tex. App.—Dallas 2006, no pet.) (failure to notify employee of coverage constitutes administrative violation punishable only by fine, and exclusivity provision does not hinge on whether notice has been provided to employee); Blazik v. Foleys, Inc., 1998 WL 788848, *3 (Tex. App.—Houston [1st Dist.] Nov. 12, 1998, no pet.) (not designated for publication) (same); Warnke v. Nabors Drilling USA, L.P., 01-09-00734-CV, 2011 WL 4836199, *3 (Tex. App.—Houston [1st Dist.] Aug. 25, 2011, no pet.) (op. on reh’g) (“[T]he exclusivity bar does not hinge on whether notice has been provided to the employee”).
2. Quasi-estoppel
“Quasi-estoppel precludes a party from asserting, to another’s disadvantage, a right inconsistent with a position previously taken.” Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 864 (Tex. 2000). “The doctrine applies when it would be unconscionable to allow a person to maintain a position inconsistent with one to which he acquiesced, or from which he accepted a benefit.” Id. “Thus, quasi-estoppel forbids a party from accepting the benefits of a transaction and then subsequently taking an inconsistent position to avoid corresponding obligations or effects.” Reliant Energy Servs., Inc. v. Cotton Valley Compression, L.L.C., 336 S.W.3d 764, 792 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (quoting Eckland Consultants, Inc. v. Ryder, Stilwell Inc., 176 S.W.3d 80, 87 (Tex. App.—Houston [1st Dist.] 2004, no pet.)).
C. Analysis
AZZ’s summary judgment evidence established that AZZ was Garcia’s employer within the meaning of the Act. Likewise, the summary judgment evidence proved that AZZ was covered by a workers’ compensation insurance policy during the relevant time period. Garcia does not dispute either element of AZZ’s exclusive remedy defense. Rather, Garcia contends that AZZ should be estopped from availing itself of the exclusive remedy defense because, as he averred in his summary judgment affidavit, each time he asked his supervisors to be seen by a doctor, he was “told to keep working or be fired” and he was “not provided access to a doctor, nor told how to gain access to a doctor.” AZZ responded in its summary judgment briefing, as it does on appeal, that there is no recognized quasi-estoppel exception to the exclusive remedy provision, and urges us to reject Garcia’s invitation to create one. We agree with AZZ.
Garcia’s complaint is that AZZ failed to provide him with information about workers’ compensation coverage and benefits (i.e., how to obtain medical treatment). Many courts, including this one, have concluded that the exclusive remedy provision bars negligence and gross negligence claims despite an employer’s failure to provide employees with notice of worker’s compensation coverage. See, e.g., Wesby, 199 S.W.3d at 618 (exclusivity provision does not hinge on whether notice has been provided to employee); Blazik, 1998 WL 788848, at *3 (same); Warnke, 2011 WL 4836199, at *3 (“the exclusivity bar does not hinge on whether notice has been provided to the employee”).
Our recent opinion, Warnke v. Nabors Drilling USA, L.P., is particularly instructive. See Warnke, 2011 WL 4836199 at *3. Warnke was injured while working for Nabors and sued Nabors, asserting negligence and other claims. Id. at *1. His summary judgment evidence showed (1) that, before he was injured, his supervisor told him that he was not covered by a worker’s compensation policy and (2) after his injury, a Nabors employee in the human resources department told Warnke’s wife that Warnke was not a Nabors employee and would not be provided with workers’ compensation benefits. Id. Warnke argued that Nabors’s conduct precluded it from availing itself of the exclusive remedy defense. Noting that “the exclusivity bar does not hinge on whether notice has been provided to the employee,” we held the exclusive remedy provision barred Warnke’s common law negligence claim against Nabors and affirmed the trial court’s summary judgment on Warnke’s negligence claim. Id. at *3.
This case presents analogous facts. Even taking as true Garcia’s evidence that AZZ failed to provide him with medical care, access to a doctor, and information about how to gain access to a doctor, we conclude that AZZ is not precluded from asserting the exclusive remedy defense as a bar against Garcia’s negligence and gross negligence claims.[1] See Warnke, 2011 WL 4836199, at *3; Wesby, 199 S.W.3d at 618; Blazik, 1998 WL 788848, at *3. We conclude that AZZ met its summary judgment burden to establish the applicability of the exclusive remedy defense under the Act, and that Garcia failed to raise an issue of fact precluding summary judgment. We overrule Garcia’s sole issue.
Conclusion
We affirm the trial court’s judgment.
Rebeca Huddle
Justice
Panel consists of Justices Jennings, Massengale, and Huddle.
[1] Garcia did not adduce any summary judgment proof of any misrepresentation on the part of AZZ, nor did he assert claims of fraud or negligent misrepresentation in his pleadings. Therefore, we do not address the availability of the exclusive remedy defense in cases in which a plaintiff asserts that an employer committed fraud or negligent misrepresentation, or that such conduct caused the employee an injury separate and apart from the underlying physical on-the-job injury. Cf Warnke v. Nabors Drilling USA, L.P., 01-09-00734-CV, 2011 WL 4836199, *6–9 (Tex. App.—Houston [1st Dist.] Aug. 25, 2011, no pet.) (op. on reh’g).