Chemical Exp. Carriers, Inc. v. Pina

• Decision Date: 16 October 1991
• Docket Number: No. 08-91-00037-CV,08-91-00037-CV
• Citation: 819 S.W.2d 585
• Parties: CHEMICAL EXPRESS CARRIERS, INC., Appellant, v. Oscar PINA, Appellee.
• Court: Texas Court of Appeals

Page 585

819 S.W.2d 585

CHEMICAL EXPRESS CARRIERS, INC., Appellant, v. Oscar PINA, Appellee.

No. 08-91-00037-CV.

Court of Appeals of Texas El Paso.

Oct. 16, 1991.

Rehearing Overruled Nov. 27, 1991.

David L. Curl, Dudley Dudley & Windle, El Paso, Jack Pew, Jr., Jackson & Walker, David T. Moran, Jackson & Walker, Dallas, for appellant.

James F. Scherr, Law Offices of James F. Scherr, Charles Louis Roberts, El Paso, for appellee.

Before OSBORN, C.J., and FULLER and KOEHLER, JJ.

OPINION

FULLER, Justice.

Oscar Pina sued and obtained a judgment against his employer for a work related injury. His employer was without workers' compensation insurance coverage having allowed it to lapse. We affirm in part, reverse and render in part, as well as reverse and remand in part.

FACTS

At the time of the accident, Oscar Pina was fifty-six years old and had been a truck driver for thirty years. On January 27, 1988, he and another truck driver were making a delivery of diesel fuel to an army facility which happened to be a first-time customer of Chemical Express.

The fuel storage tank at the facility was below ground and access to the tank was to be obtained by removal of a manhole cover that weighed approximately 400 pounds. A soldier attempted to assist Oscar Pina in lifting the manhole cover. The cover was lifted waist high instead of merely raising it a few inches above ground level and sliding it to the side. The soldier lost his grip and the cover fell on Oscar Pina causing him injury. Chemical Express referred him to a doctor. After seeing various doctors, Appellee filed a claim for workers' compensation benefits. His claim was denied on the basis that Chemical Express had no workers' compensation coverage. Pina did not return to work and was ultimately fired.

THIS LAWSUIT

Oscar Pina sued Chemical Express seeking damages alleging various and alternate theories of recovery:

Common law negligence and gross negligence;

Breach of contract seeking compensation benefits as if Chemical Express had workers' compensation coverage;

Breach of duty of good faith and fair dealing in the delay or failure to pay workers' compensation benefits; and

Wrongful discharge from employment with Chemical Express because he had filed a workers' compensation claim and/or hired a lawyer.

THE JURY VERDICT

Over objections by Chemical Express, the trial court submitted the case to the jury on all of Appellee's theories (as if there was not any workers' compensation coverage and as if there was workers' compensation coverage). The jury found:

Chemical Express was guilty of negligence and gross negligence in causing Oscar Pina's injury setting his damages at $693,500.09.

On the workers' compensation questions, Oscar Pina was totally and permanently disabled;

Oscar Pina was wrongfully discharged by Chemical Express because of filing his compensation claim and/or hiring a lawyer setting his damages at $45,000.00;

Chemical Express breached its duty of good faith and fair dealing in failing to pay Oscar Pina benefits under the workers' compensation law. His damages were set at $50,000.00 actual and $100,000.00 exemplary damages.

THE TRIAL COURT JUDGMENT

Appellee did not ask for or assert any objection to the judgment that the trial court entered. Appellant continually and consistently objected to the failure of the Appellee to make an election as to his theory of recovery. However, pursuant to the findings of the jury, the trial judge entered judgment for Appellee for:

Damages due to the negligence and gross negligence of the Appellant;

Damages for the breach of duty of good faith and fair dealing by Chemical Express in failing to pay workers' compensation benefits;

Damages for the wrongful discharge of Oscar Pina by Chemical Express because he had filed a workers' compensation claim and/or hired a lawyer.

The total judgment entered by the trial court amounted to $903,406.64 plus post-judgment interest and costs.

POINTS OF ERROR

Chemical Express asserts twenty points of error. Attack is made on all findings made in favor of Oscar Pina. Appellant states there was no evidence and/or insufficient evidence to support those findings.

In addition, Appellant urges that the trial court erred in failing to submit a sole cause instruction in regard to the negligence questions submitted to the jury.

Chemical Express further asserts the trial court erred in entering judgment based on the inconsistent theories of recovery, namely: common law negligence and lack of good faith and fair dealing in the delay or refusal to pay workers' compensation benefits.

The court in its judgment specifically states that the Appellant "breached its agreement and is liable to Plaintiff OSCAR PINA in the same fashion as if it had workers [sic] compensation insurance." [Emphasis added].

Oscar Pina had the right to sue his employer for breach of contract when there was a representation of the existence of workers' compensation coverage. Anderson-Berney Realty Co. v. Soria, 123 Tex. 100, 67 S.W.2d 222 (1933). Appellee, therefore, was also entitled to assert his cause of action for lack of good faith and fair dealing on the part of Chemical Express in delay or failing to pay workers' compensation benefits. Aranda v. Insurance Co. of North America, 748 S.W.2d 210 (Tex.1988).

May Oscar Pina recover damages under a negligence theory because of no workers' compensation coverage AND at the same time recover damages from the employer for lack of good faith and fair dealing in its failure to pay benefits as if there was workers' compensation coverage? We hold that he cannot. Appellee accepted the judgment entered by the trial court that did not allow for an award pursuant to the total-permanent jury findings under the workers' compensation questions. We find that such acceptance, without objection, constituted an abandonment, waiver and/or an election to forgo workers' compensation benefits, including the damages awarded by the jury for lack of good faith and fair dealing in failing to pay any benefits due.

If we are incorrect in finding abandonment, waiver and/or election, we still cannot allow the judgment to stand allowing damages under the inconsistent theories of common law negligence and workers' compensation. Indeed, the legislative purposes for enacting the workers' compensation law was to provide an alternative to the common law theories of recovery. This purpose is evident in Article 8308, Section 3.08 of the Workers' Compensation Act. This particular provision, applicable to subscribers of the Act, requires an affirmative election on the part of the employee if the employee wishes to retain his common law rights. Tex.Rev.Civ.Stat.Ann. art. 8308, § 3.08 (Vernon Supp. Pamphlet 1991).

In Aranda v. Insurance Co. of North America, 748 S.W.2d at 212, the Court stated:

As between the compensation carrier and the employee, there is a promise for a promise: the carrier agrees to compensate the employee for injuries sustained in the course of employment, and the employee agrees to relinquish his common law rights against his employer. [Emphasis added].

This pronouncement by our Supreme Court clearly indicates that workers' compensation and negligence are two co-existing but yet inconsistent remedies.

Therefore, we find the trial court erred in entering judgment for Appellee under the alternate theories of negligence and lack of good faith and fair dealing. Southern County Mutual Insurance Company v. First Bank and Trust of Grovers, 750 S.W.2d 170 (Tex.1988).

The judgment of the trial court awarded Appellee $693,500.09 on the common law theory of negligence, including gross negligence. The judgment also awards Appellee $150,000.00 for the lack of good faith and fair dealing in failing to pay workers' compensation benefits. Oscar Pina should not be foreclosed in his attempt to recover on the negligence theory which might afford him a greater recovery. Id. at 173, 174; Stevenson v. Koutzarov, 795 S.W.2d 313 (Tex.App.--Houston [1st Dist.] 1990, writ denied).

NEGLIGENCE AND GROSS NEGLIGENCE

A. Negligence

To show ordinary negligence by an employer, the injured employee must prove that the employer breached a duty and that the breach was a proximate cause of the damages incurred. El Chico Corporation v. Poole, 732 S.W.2d 306 (Tex.1987). The breach must be the "cause in fact" of the injury, and the injury must also be foreseeable. Harrison v. Harrison, 597 S.W.2d 477 (Tex.Civ.App.--Tyler 1980, writ ref'd n.r.e.). An employee must be furnished a safe place to work and must be furnished suitable tools to do the work safely. J. Weingarten, Inc. v. Sandefer, 490 S.W.2d 941 (Tex.Civ.App.--Beaumont 1973, writ ref'd n.r.e.).

After review of the evidence and the inferences that support the jury verdict, it is clear that there is more than a scintilla of evidence to support the findings of breach of duty and proximate cause. Stafford v. Stafford, 726 S.W.2d 14 (Tex.1987). The evidence showed that Chemical Express failed to inspect the delivery site and failed to instruct employees on how to lift heavy objects even though the company was aware that at times their drivers would be required to lift heavy tank covers. Evidence also showed that Pina was not furnished a specialized tool for lifting tank covers which might have prevented him from raising the tank cover waist high.

We are not fact finders and we may not substitute our judgment for that of the jury. There was certainly conflict in the evidence upon which a different verdict could have been reached. Texas Employers Insurance Association v. Alcantara, 764 S.W.2d 865 (Tex.App.--Texarkana 1989, no writ). However, the evidence was factually sufficient to support a finding of ordinary negligence.

FAILURE TO SUBMIT A SOLE CAUSE INSTRUCTION

Chemical Express requested a sole cause instruction but the trial court refused. Appellee contends that Appellant failed to preserve error because the denial of the requested...