OPINION ON MOTION FOR REHEARING
BURGESS, Justice.Our prior opinion of December 16,1993,1 is withdrawn. Regina Fuller brought suit against Travelers Indemnity Company of Illinois (“Travelers Indemnity”) and Travelers Insurance Company (“Travelers Insurance”) seeking damages for the death of her father, Mr. Calvin Fuller.2 The trial court granted Appellees’ Motion for Summary Judgment based on the language of Tex.Rev.Civ.Stat. *960ANN. art. 8306, § 3(e), repealed by Acts 1989, 71st Leg., 2d C.S., ch. 1, § 16,1989 Tex.Gen. Laws 114.3 We reverse the summary judgment. In her Fifth Amended Petition, Appellant asserts her father was an employee of American Petrofina (or its predecessor), at its refinery in Port Arthur, Texas, for many years. During his years of employment, Mr. Fuller was exposed to various polynuclear aromatic hydrocarbons at the Fluid Catalytic Cracking Unit as well as other units. This exposure resulted in death from adenocarci-noma on May 5, 1982. Travelers Indemnity was the workers’ compensation carrier for American Petrofina from January 1, 1973, until January 1, 1976, and provided workers’ compensation benefits to the employees of American Petrofina where decedent was employed. During the period from July, 1973, to January, 1976, Travelers Insurance performed periodic safety audits and industrial hygiene surveys at the refinery for Travelers Indemnity. The safety audits were conducts ed as part of Travelers’ workers’ compensation insurance coverage for the plant. Appellant alleges that Travelers Insurance and Travelers Indemnity were negligent and grossly negligent because these companies failed to take any action to alleviate the health and safety hazards present at the employer’s facilities and/or warn Mr. Fuller of their existence, despite the knowledge by Appellees of numerous health and safety hazards present at the refinery.
Appellees filed their Amended Motion for Summary Judgment, alleging that Article 8306, § 3(e) of the Texas Workers’ Compensation Act grants immunity to workers’ compensation insurance carriers against allegations such as those made by Appellant in the instant suit.
Appellant contends the trial court erred in granting summary judgment on essentially two grounds:
1) That Tex. Const, art. XVI, § 26 preserves Plaintiffs cause of action for exemplary damages, notwithstanding the immunity provision of the Texas Workers’ Compensation Act; and
2) That the immunity provision is violative of Tex Const, art. I, § 13.
The standard of review of a summary judgment is familiar to Texas Appellate Courts. The question is whether the summary judgment proof establishes that no genuine issue of material fact exists, and that the movant is entitled to judgment as a matter of law. See Nixon v. Mr. Property Management, 690 S.W.2d 646, 548 (Tex.1985). In reviewing the summary judgment proof, all evidence favorable to the non-movant must be taken as true, indulging all inferences and resolving all doubts in the non-movant’s favor. Id. at 549.
Appellees contends that Article 8306, § 3(e) grants appellees immunity by precluding any claim against a carrier that arises out of any accident prevention program undertaken in connection with the subscriber’s operation. The Act provided:
The Association (i.e. the compensation carrier), its agent, servant or employee, shall have no liability with respect to any accident based on the allegation that such accident was caused or could have been prevented by a program, inspection, or other activity or service undertaken by the association for the prevention of accidents in connection with operations of its subscriber; provided, however, this immunity shall not affect the liability of the association for compensation or as otherwise provided in this law.4
Appellant, on the other hand, contends that the statutory provision in question must *961be read in conjunction with Tex. Const, art. XVI, § 26 which states:
Every person, corporation or company, that may commit a homicide, through willful act, or omission, of gross neglect, shall be responsible, in exemplary damages, to the surviving husband, widow, heirs of his or her body, or such of them as there may be, without regard to any criminal proceeding that may or may not be had in relation to the homicide.
Appellee and the trial court relied upon Russell v. Ingersoll-Rand Co., 841 S.W.2d 343 (Tex.1992), for support. This reliance was 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, orn-ease 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 Go International, 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 Nabours v. 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.StatAnn. art. 8306, § 5 (Vernon 1967). The court characterized as dicta the language in Fort Worth Elevators 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 of Nabours highlights an important aspect of Nabours. 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. Regina Fuller is not suing under the compensation statute. 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, all the relevant cases can be harmonized 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.
Having reversed on other grounds, we need not address appellant’s contention that article 8306, § 3(e) violates the “Open Courts” provision of the Texas Constitution.
REVERSED AND REMANDED.
. 867 S.W.2d 164.
. When appropriate, Travelers Indemnity and Travelers Insurance will be referred to collectively as "Appellees”.
. The Texas Workers’ Compensation Act. All references are to the Act in effect prior to 1991.
. This provision was recodified in the new workers’ compensation statute as Tex.Rev.Civ.Stat.Ann. art. 8308-7.06 (effective 1991) (current version at Tex.Lab.Code Ann. § 411.003 (Vernon Pamph. 1994)). On August 11, 1993, a 4-3 decision of the Fourth Court of Appeals held that the 1991 Workers’ Compensation Act, Tex.Rev.Civ.Stat.Ann. art. 8308-1.01 through 8308-11.10 was unconstitutional. Texas Workers’ Compensation Comm'n v. Garcia, 862 S.W.2d 61 (Tex.App.—San Antonio 1993, writ requested).