concurring.
I concur with the result reached by the majority. However, I disagree with the majority’s contention that a claim made under the Workers’ Compensation Act and an intentional tort claim are mutually exclusive. Majority Opinion at 106-107 (citing dictum in Massey v. Armco Steel Co., 652 S.W.2d 932, 933 (Tex.1983)). And I therefore further disagree that the election of remedies doctrine is applicable in this case.
*109On September 12, 1986, the date of Ramirez’s injury, the exclusive remedy provision of the Texas Workers’ Compensation Act provided that an employee of a subscriber to the Act had no right of action against his employer for damages for personal injuries. Tex.Rev.Civ.Stat.Ann. art. 8306, § 3(a) (Vernon Supp.1986) (now Tex. Rev.Civ.Stat.Ann. art. 8308-4.01(a) (Vernon Supp.1992)). The statute further stated: “No part of this Section is intended to lessen or alter the employee’s existing rights or cause of action either against his employer, its subscriber, or any third party.” Tex.Rev.Civ.Stat.Ann. art. 8306, § 3(f) (Vernon Supp.1986). One such existing cause of action is the common law action for intentional injuries. See Reed Tool Co. v. Copelin, 610 S.W.2d 736, 739 (Tex.1980).
In other jurisdictions, employees suing employers for intentional torts are said to be excepted from exclusivity provisions of workers’ compensation statutes because intentional injuries are distinguished from accidental injuries. 2A ARTHUR LARSON, The Law of WORKMEN’S Compensation § 68, at 13-1 (1990). I recognize that in Texas an employee is not required to prove that he incurred accidental injuries to receive workers’ compensation benefits and that he need only show that he sustained an injury during the course of his employment. Tex. Rev.Civ.Stat.Ann. art. 8306, § 3b (Vernon 1967) (now Tex.Rev.Civ.Stat.Ann. art. 8308-3.01 (Vernon Supp.1992)). Nevertheless, judicial interpretation of the Texas Workers’ Compensation Act since its enactment in 19131 has characterized a compen-sable injury as an accidental injury:
[The Act’s] evident purpose was to confine its operation to only accidental injuries and its scope is to be so limited. * * * [Due to Tex.Const. art. I, § 13,] 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. What we know and denominate as the cause of action arising from an accidental injury is purely the creation of the common law. It is a common law liability founded upon the common law doctrine of negligence; and but for the rule of the common law, — sometimes also expressed in statutes, — there would be no liability for such an injury, and hence no cause of action.
Therefore in denying the employee of a subscribing employer, or his beneficiaries, any cause of action for accidental injuries, this Act simply changes the common law rule of liability upon the subject. It in effect declares that such employers shall no longer be liable as under that rule, but shall be liable according to the rule prescribed by the Act.
Middleton v. Texas Power & Light Co., 108 Tex. 96, 185 S.W. 556, 560-61 (1916) (emphasis added).
More recently, our Supreme Court stated: “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). The Court concluded that a worker could bring an intentional tort claim against his employer if his employer knew with a substantial certainty that the worker would be injured. Id. at 408; see also Rodriguez v. Naylor Indus., Inc., 763 S.W.2d 411, 412 (Tex.1989).
I am aware that if a claim brought under the Workers’ Compensation Act and a claim for intentional tort are not considered mutually exclusive, then a worker would not be required to make an election because the two claims would not result in inconsistent remedies so as to constitute manifest injustice. See Bocanegra v. Aetna Life Ins. Co., 605 S.W.2d 848, 851 (Tex.1980). But employees would not receive double recoveries under the Act and for an intentional tort claim because the subscriber’s insurer has a right to intervene in the intentional tort lawsuit and ask for recov*110ery on any judgment to the extent of the insurer’s statutory subrogation rights. See Tex.Rev.Civ.Stat.Ann. art. 8307, § 6a(a) (Vernon Supp.1986)2 (now Tex.Rev.Civ. StatAnn. art. 8308-4.05 (Vernon Supp. 1992)); Chambers v. Texas Employers Ins. Ass’n, 693 S.W.2d 648, 649 (Tex.App.—Dallas 1985, writ ref'd n.r.e.); Carter v. Ferris, 337 S.W.2d 852, 855 (Tex.Civ.App.—Amarillo 1960, writ ref’d n.r.e.).
Although I agree with the majority that Ramirez ought to be allowed to pursue his claim for intentional tort, I disagree with the majority’s conclusion that would permit the election of remedies doctrine to be a defense to his claim.
. The Act was originally called the Workmen’s Compensation Act. Act effective September 1, 1913, 33rd Leg., R.S., ch. 179, 1913 Tex.Gen. Laws 429-38.
. Article 8307, § 6a(a) provides, in part:
If compensation be claimed under this law by the injured employee ..., then the association shall be subrogated to the rights of the injured employee, and may enforce in the name of the injured employee ... the liability of said other person, and in case the recovery is for a sum greater than that paid or assumed by the association to the employee ..., then out of the sum so recovered the association shall reimburse itself and pay said costs and the excess so recovered shall be paid to the injured employee or his beneficiaries.
Tex.Rev.Civ.Stat.Ann. art. 8307, § 6a(a) (Vernon Supp.1986). "Association" is defined as an insurance company authorized to insure the payment of compensation to injured employees. Tex.Rev.Civ.Stat.Ann. art. 8309, § 1 (Vernon 1967).