I respectfully dissent. The majority relies upon Russellv. Ingersoll-Rand Co., 841 S.W.2d 343 (Tex. 1992), for support. This reliance is misplaced. Ingersoll-Rand involved only statutory causes of action, a survival cause of action under TEX.CIV.PRAC. REM.CODE ANN., § 71.021 (Vernon 1987) and a wrongful death action under TEX.CIV.PRAC. REM.CODE ANN., § 71.003(a) (Vernon 1987).Ingersoll-Rand held both of these are totally derivative of the decedent's rights and subject to defenses which could have been asserted against the decedent. However, our case is not based upon those statutes, it is based upon TEX. CONST. art. XVI, § 26.
Nor is this case controlled by Fort Worth Elevators Co.v. Russell, 123 Tex. 128, 70 S.W.2d 397 (1934), or GoInternational, Inc. v. Lewis, 601 S.W.2d 495, 499 (Tex.Civ.App. — El Paso 1980, writ ref'd n.r.e.), rather than by Ingersoll-Rand. For these two cases must be harmonized with Wright v. Gifford-Hill Co., Inc.,725 S.W.2d 712 (Tex. 1987), and the explanation of Naboursv. Longview Savings Loan Ass'n., 700 S.W.2d 901 (Tex. 1985), contained therein. Wright involved a widow suing to recover exemplary damages for the death of her husband under TEX.REV.CIV.STAT.ANN. art. 8306, § 5 (Vernon 1967). The court characterized as dicta the language in Fort WorthElevators Co. requiring recovery of actual damages under the compensation act in order to recover exemplary damages. The court went on to hold that a plaintiff need not secure a finding on the amount of actual damages in order to recover exemplary damages under the compensation act and disapproved that portion of Fort Worth Elevators. The court went on to explain that the statement in Nabours that even in cases where actual damages are not recoverable, it is still necessary to allege, prove, and secure jury findings on actual damages is not applicable to causes arising under the exemplary damage provision of the compensation act. This explanation *Page 170 of Nabours highlights an important aspect ofNabours. Nabours acknowledges exemplary damages may be awarded in cases where actual damages exist regardless of whether the actual damages are recoverable. 700 S.W.2d at 903.
It is true Regina Fuller is not suing under the compensation statute. However, her cause of action is not derivative of her father's in the statutory sense. TEX. CONST. art. XVI, § 26, allows her to recover for exemplary damages in a constitutional sense. While the legislature could certainly provide the carrier with immunity from liability as to Mr. Fuller, they cannot override the constitutional provision making the carrier responsible for committing homicide through gross negligence.
In summary, this court can harmonize all the relevant cases by holding when exemplary damages are sought under the constitutional provision, it is not necessary that actual damages be recoverable, they need only to exist. I would so hold and reverse the summary judgment.