concurring in part and dissenting in part.
I agree that Medina’s claim against Herrera is not barred and to this end I concur. But I disagree with the Court’s judgment that Medina’s claim against Interstate Forging Industries, Inc. is barred. Receiving workers’ compensation benefits and maintaining an intentional tort cause of action for the same injuries are neither legally nor factually inconsistent remedies. Consequently, no election of remedies is required in this case and I respectfully dissent from this portion of the Court’s judgment.
*606First, I note that the Workers’ Compensation Act is the exclusive remedy for work-related injuries, with the exception of intentional injuries. Rodriguez v. Naylor Indus., Inc., 763 S.W.2d 411, 412 (Tex.1989); Reed Tool Co. v. Copelin, 689 S.W.2d 404, 406 (Tex.1985); Massey v. Armco Steel Co., 652 S.W.2d 932, 933 (Tex.1983). Additionally, an assault by a supervisor is imputed to the employer under the doctrine of respondeat superior. Houston Transit Co. v. Felder, 208 S.W.2d 880, 881 (Tex.1948). Finally, the Workers’ Compensation Act provides compensation for intentional injuries, provided they occur within the course and scope of employment. Tex.Lab.Code § 406.031(a)(2).1 Therefore, based on a single factual scenario, an employee may receive workers’ compensation benefits for an intentional injury suffered within the course and scope of employment and also maintain an intentional tort cause of action against his employer. The worker can maintain the two simultaneously, and because the facts relied upon are not inconsistent, the election of remedies doctrine is not implicated.
I
The Court erroneously concludes that the two remedies Medina seeks are inconsistent and that he waived his intentional tort cause of action against his employer because he first sought benefits under the Act. 927 S.W.2d 597, 602. I acknowledge that courts, including this Court, have reached similar conclusions in other cases. Massey, 652 S.W.2d at 933 (“An employee ... may waive his cause of action for intentional tort if he seeks benefits under the Act.”) (dicta); Jones v. Jeffreys, 244 S.W.2d 924, 926 (Tex.Civ.App.-Dallas 1951, writ refd) (same); see Ramirez v. Pecan Deluxe Candy Co., 839 S.W.2d 101, 107 (Tex.App.-Dallas 1992, writ denied) (requiring final commission award before election of remedies occurs). But they too are incorrect. The Court’s position is based on a faulty application of the election of remedies doctrine. This doctrine relies on principles of estoppel, ratification, and unjust enrichment. Bocanegra v. Aetna Life Ins. Co., 605 S.W.2d 848, 851 (Tex.1980). And these principles are applied to the factual underpinnings of the claims. Id. As the Court concedes, Medina’s claim for intentional injuries against his employer is not factually inconsistent with his workers’ compensation claim. 927 S.W.2d at 600.
Considering its concession, the Court’s conclusion is not supported by the eases it cites because they all rely on factual inconsistencies. For example, in Bocanegra, the plaintiff collected workers’ compensation after asserting that an injury was incurred on the job, but later attempted to collect medical insurance claiming the injury was non-occupational. 605 S.W.2d at 849-50; see also Grove Mfg. Co. v. Cardinal Constr. Co., 534 S.W.2d 153, 155 (Tex.Civ.App.—Houston [14th Dist.] 1976, writ ref'd n.r.e.) (alleging intentional injury after collecting workers’ compensation for an admitted accidental injury); Jones, 244 S.W.2d at 926 (same). Medina has maintained throughout the course of these proceedings that he incurred an intentional injury in the course and scope of his employment. By statute, Medina has workers’ compensation coverage and an existing common law cause of action for injuries resulting from an intentional tort.
II
There is another problem with the Court’s decision in this case. Applying the election doctrine to bar an employee’s intentional tort cause of action because of estoppel or ratification principles violates the Texas Constitution. An employee’s right to pursue an intentional tort cause of action, even when the employee first files for workers’ compensation, is premised on the Open Courts provision of the Texas Constitution. Tex. Const. art. I, § 13. Article I, Section 13 guarantees *607an employee a cause of action for common law intentional torts, notwithstanding the coverage provided by the Workers’ Compensation Act, thus precluding an estoppel or ratification argument. Castleberry v. Goolsby Building Corp., 617 S.W.2d 665, 666 (Tex.1981). When determining the constitutionality of a former Workers’ Compensation Act in Middleton v. Texas Power & Light Co., we held:
[The Workers’ Compensation Act’s] evident purpose was to confine its operation to only accidental injuries and its scope is to be so limited.... [Due to Article I, Section 18 of the Texas Constitution,] the Legislature is without the power to deny the citizen the right to resort to the courts for the redress of any intentional injury to his person by another.... This Act does not affect the right of redress for that class of wrongs. The injuries, or ■wrongs, with which it deals are accidental injuries or wrongs.
185 S.W. 556, 560 (Tex.1916) (emphasis added). Courts interpret Article I, Section 13 to prohibit “legislative action withdrawing common law remedies for well established common law causes of action” if the substituted remedy is unreasonable or arbitrary when balanced against the purpose and basis of the statute. Texas Workers’ Compensation Comm’n v. Garcia, 893 S.W.2d 504, 520 (Tex.1995) (quoting Trinity River Auth. v. URS Consultants, Inc.-Texas, 889 S.W.2d 259, 261-62 (Tex.1994)).
The Workers’ Compensation Act’s abridgment of common law negligence actions is not viewed as arbitrary or unreasonable. Id. The workers’ compensation system “balances the advantage to employers of immunity from negligence and potentially larger recovery in common law actions against the advantage to employees of relatively swift and certain compensation without proof of fault.” Reed Tool, 689 S.W.2d at 407 (emphasis added). “If employers are required to provide not only worker’s compensation but also to defend and pay for accidental injuries, their ability to spread the risk through reasonable insurance premiums is threatened, and the balance of advantage and detriment would be significantly disturbed.” Id. (emphasis added). Had this Court in Reed Tool intended to hold that the Act precluded common law actions for intentional torts as well, we would not have specifically noted in that case that the policy of exchanging guaranteed compensation for common law actions applied only to negligence and other accidental injuries. Id.
The Court acknowledges that the Act “was not intended to apply to or affect an employee’s common law claim for intentional tort against his employer.” 927 S.W.2d at 600. But the Court skirts this issue by ignoring the terms of the’ current Act, which allows compensation for any injury suffered within the course and scope of employment. Tex.Lab.Code § 406.031(a)(2). An injury suffered within the course and scope of employment could include accidental as well as intentional injuries provided the injury suffered is “incident to employment” and not covered by the narrowly drawn “personal animosity” exception. Nasser, 724 S.W.2d at 19. The Court then attempts to cursorily dispose of the issue by holding that the exclusivity provision of the Act, Tex.Lab.Code § 408.001(a), shields an employer from common law liability if compensation is allowed or paid under the Act. 927 S.W.2d at 600. This is a fatal flaw in the Court’s reasoning because the exclusivity provision cannot be read to preclude common law intentional tort claims lest it be rendered unconstitutional. Middleton, 185 S.W. at 560-61 (Workers’ Compensation Act does not preclude common law intentional tort causes of action).
Ill
In holding that an employee makes an election of remedies by accepting workers’ compensation benefits, the Court appears to place its primary emphasis on the third legal basis for the election of remedies doctrine— the threat that an employee would receive double compensation if allowed to recover workers’ compensation benefits and maintain a common law intentional tort cause of action against the employer, thus resulting in manifest injustice. 927 S.W.2d at 601. This threat is eliminated by the workers’ compensation carrier’s ability to recoup its payments made by intervening in the employee’s intentional tort lawsuit. Tex.Lab.Code §§ 417.001-.002. “[T]he insurance carrier is subrogated to the rights of the injured employee and may en*608force the liability of the third party in the name of the injured employee.” Id. § 417.001. The insurance carrier may use the proceeds from the lawsuit to reimburse itself for payments made and treat any excess amount as an advance against future benefits it owes the injured employee. Id. §§ 417.001-.002.
I concede, as the Court correctly points out, that the term “third party” does not clearly indicate whether the Act considers the employer a third party against whom the workers’ compensation carrier may seek reimbursement. Nevertheless, under common law equitable subrogation, the workers’ compensation carrier may still intervene to recoup its payments made and establish offsets to possible future payments. The purpose behind equitable subrogation is to prevent the debtor/employee from being unjustly enriched. Smart v. Tower Land & Inv. Co., 597 S.W.2d 333, 337 (Tex.1980). Under this equitable doctrine, a party who makes payments for the benefit of a debtor, or in this case, an injured employee, is subrogated to the rights of the debtor. First Nat’l Bank of Kerrville v. O’Dell, 856 S.W.2d 410, 415 (Tex.1993); American Centennial Ins. v. Canal Ins. Co., 843 S.W.2d 480, 482 (Tex.1992). In the insurance context, equitable subrogation allows the insurance carrier to intervene in an insured’s lawsuit against a third party to recoup payments made by the carrier. Ortiz v. Great S. Fire & Casualty Ins. Co., 597 S.W.2d 342, 343 (Tex.1980). This prevents the insured from receiving a double recovery for the same injuries. Id. The Court correctly states the principle that “[a]n insurer is not entitled to [equitable] subrogation if the insured’s loss is in excess of the amounts recovered from the insurer and the third party causing the loss.” 927 S.W.2d at 604 (quoting Ortiz, 597 S.W.2d at 343). But then, of course, the insured would not yet have received a double recovery. Accordingly, the doctrine of equitable subrogation can be applied to the workers’ compensation scheme to guard against the possibility of double compensation, prevent unjust enrichment, and preserve equity.
IV
Concluding, it is my view that the public policy behind the workers’ compensation scheme favors allowing an injured employee to simultaneously accept workers’ compensation benefits and maintain an intentional tort cause of action. When first injured, the employee may be unable to work and financially incapable of waiting an extended period of time while in pursuit of a damage award in an intentional tort lawsuit. The employee must be able to sustain himself with workers’ compensation benefits pending such damage award, which might not be realized for several years, if at all. When the employee does recover damages, the workers’ compensation carrier could recoup all benefits paid and offset any future payments from the employee’s damage award. In this context, the employee would not be placed in the precarious position of choosing to accept workers’ compensation benefits necessary to sustain himself and his family at the peril of losing his constitutionally protected intentional tort cause of action.
⅜ ⅜ ¾: ⅜ # ⅜
Because the Court erred by applying the election of remedies doctrine to circumstances in which it does not apply, I respectfully dissent. I would reverse the entire judgment of the court of appeals and remand the ease to the trial court.
. Embodied within the current Act is a "personal animosity” exception. TexXab.Code § 406.032(1)(C). This exception helps delineate exactly which actions occur within the course and scope of employment and those that do not. Notwithstanding this exception, when an employee suffers a direct assault, if "conditions attached to the place of employment or otherwise incident to the employment are factors in the catastrophic combination, the consequent injury arises out of the employment.” Nasser v. Security Ins. Co., 724 S.W.2d 17, 19 (Tex.1987); see Garcia v. Texas Indem. Ins. Co., 146 Tex. 413, 209 S.W.2d 333, 336 (1948).