Classen v. Irving Healthcare System

• Decision Date: 25 August 1993
• Docket Number: No. 05-92-01956-CV,05-92-01956-CV
• Citation: 868 S.W.2d 815
• Parties: Carol CLASSEN, Appellant, v. IRVING HEALTHCARE SYSTEM, Appellee.
• Court: Texas Court of Appeals

Page 815

868 S.W.2d 815

Carol CLASSEN, Appellant, v. IRVING HEALTHCARE SYSTEM, Appellee.

No. 05-92-01956-CV.

Court of Appeals of Texas Dallas.

Aug. 25, 1993.

Rehearing Denied Nov. 16, 1993.

Steven J. Williams, Irving, for appellant.

Michael W. Huddleston, Dallas, Teresa Bohne, Irving, Jeff W. Ryan, Dallas, for appellee.

Before KINKEADE, CHAPMAN and BARBER, JJ.

OPINION

KINKEADE, Justice.

Carol Classen appeals a take nothing summary judgment granted by the trial court in favor of Irving Healthcare System (IHS). In four points of error, Classen asserts that the trial court erred in granting the summary judgment because: (1) article 8307c of the Texas Workers' Compensation Act was specifically adopted for and applies to political subdivisions and is enforceable against IHS, (2) the affidavit of Sally D. Hill in support of IHS's motion for summary judgment was inadmissible summary judgment evidence, and (3) she raised fact issues in her affidavit that should have precluded summary judgment. Concluding there is no merit in Classen's points of error, we affirm the trial court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The City of Irving, Texas passed an ordinance pursuant to its powers under article 4437e(3) of the Texas Revised Civil Statutes creating IHS. Classen worked for IHS. On June 2, 1990, while employed by IHS, Classen slipped and fell at work, injuring herself. She received benefits under the Texas Workers' Compensation Act as a result of those injuries. On November 15, 1991, nearly one and one-half years later, IHS terminated Classen. IHS asserted that it discharged her for insubordination. Classen alleged that IHS terminated her for hiring a lawyer and exercising her rights under the Texas Workers' Compensation Act. Classen sued IHS for (1) violation of article 8307c of the Texas Workers' Compensation Act and (2) intentional infliction of emotional distress resulting from the manner in which she was terminated. IHS filed a motion for summary judgment contending that Classen's claims were barred by the doctrine of sovereign immunity. The trial court granted IHS's motion for summary judgment.

Classen's points of error challenge the granting of IHS's summary judgment only on her article 8307c claim, not on her claim of intentional infliction of emotional distress. Classen does not assert a general point of error contending that the trial court erred in granting IHS's motion for summary judgment. Classen does not attack the legal sufficiency of IHS's grounds for summary judgment.

ARTICLE 8307c CLAIM

In her first two points of error, Classen contends that the trial court erred in granting IHS's motion for summary judgment on her claim under article 8307c of the Texas Workers' Compensation Act because that article was specifically adopted for and applies to political subdivisions and is enforceable against IHS. Classen relies upon Barfield v. City of La Porte, 849 S.W.2d 842 (Tex.App.--Texarkana 1993, n.w.h.) and City of La Porte v. Prince, 851 S.W.2d 876 (Tex.App.--Waco 1993, n.w.h.) in support of her argument.

Summary Judgment Standard of Review

In reviewing the trial court's ruling on IHS's motion for summary judgment with respect to Classen's article 8307c claim, we apply the following standards:

1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.

2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true.

3. Every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor.

See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). We will reverse the summary judgment and remand the cause for a trial on the merits if the summary judgment was improperly granted. Tobin v. Garcia, 159 Tex. 58, 63-64, 316 S.W.2d 396, 400 (1958).

The summary judgment rule does not provide for a trial by deposition or affidavit. The rule provides a method for summarily ending a case involving only a question of law and no genuine material fact issue. Gaines v. Hamman, 163 Tex. 618, 626, 358 S.W.2d 557, 563 (1962). The trial court's duty is to determine if there are any material fact issues to try, not to weigh the evidence or determine its credibility and try the case on affidavits. Gulbenkian v. Penn, 151 Tex. 412, 416, 252 S.W.2d 929, 931 (1952). The purpose of the summary judgment rule is to eliminate patently unmeritorious claims or untenable defenses. The rule is not intended to deprive litigants of their right to a full hearing on the merits of any real issue of material fact. Id., 252 S.W.2d at 931.

To show its right to a summary judgment, a defendant as movant must either disprove an essential element of the plaintiff's cause of action as a matter of law or establish all the elements of its defense as a matter of law. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970); Pinckley v. Gallegos, 740 S.W.2d 529, 531 (Tex.App.--San Antonio 1987, writ denied). The plaintiff as nonmovant need not answer or respond to a motion for summary judgment to contend on appeal the grounds expressly presented by the defendant's motion are insufficient as a matter of law to support summary judgment. But, a plaintiff may not raise any other issues as grounds for reversal. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). Except to attack the legal sufficiency of the movant's grounds for summary judgment, the nonmovant must expressly present to the trial court any reason for avoiding the movant's entitlement to summary judgment. The nonmovant must present summary judgment proof when necessary to show a fact issue. The nonmovant must expressly present to the trial court in a written answer or response to the motion those issues that would defeat the movant's right to summary judgment. Failing to do so, the nonmovant may not assign them as error on appeal. TEX.R.CIV.P. 166a(c); City of Houston, 589 S.W.2d at 678-79.

Article 8307c

and Sovereign Immunity

Article 8307c provides that an employee may recover reasonable damages from an employer that terminates the employee for filing a workers' compensation claim or hiring an attorney to represent him in a workers' compensation claim. TEX.REV.CIV.STAT.ANN. art. 8307c (Vernon Pamph.1993). Claims under article 8307c are commonly known as wrongful discharge claims. Article 8309h, which concerns workers' compensation insurance for employees of political subdivisions, adopts article 8307c and makes political subdivisions subject to wrongful discharge claims except to the extent that article 8307c is inconsistent with article 8309h. TEX.REV.CIV.STAT.ANN. art. 8309h, § 3(c) (Vernon Pamph.1993).

Article 8309h sets out two limitations to the right of an employee of a political subdivision to bring a wrongful discharge claim. First, the employee cannot bring a wrongful discharge claim and sue under article 6252-16a (the "whistleblower" statute). TEX.REV.CIV.STAT.ANN. art. 8309h, § 3(d) (Vernon Pamph.1993). Second, the Texas Tort Claims Act must authorize a wrongful discharge claim against a political subdivision. TEX.REV.CIV.STAT.ANN. art. 8309h, § 3(e) (Vernon Pamph.1993); see TEX.CIV.PRAC. & REM.CODE ANN. §§ 101.001-.109 (Vernon 1986 & Supp.1993). It is undisputed that IHS is a political subdivision as defined by article 8309h. Accordingly, we must review the summary judgment record to determine whether Classen's wrongful discharge claim against IHS was subject to one of these two limitations in article 8309h.

Classen asserted a wrongful discharge claim against IHS. Classen did not assert a whistleblower claim against IHS. Classen's wrongful discharge claim, therefore, was not precluded by the first limitation under article 8309h.

With respect to the second limitation in article 8309h, we must determine whether the Texas Tort Claims Act authorizes Classen's wrongful discharge claim. TEX.REV.CIV.STAT.ANN. art. 8309h, § 3(e) (Vernon Pamph.1993). The Texas Tort Claims Act prohibits claims against a government unit unless there is a specific waiver of sovereign immunity. TEX.CIV.PRAC. & REM.CODE ANN. § 101.001-.109 (Vernon 1986 & Supp.1993). The Texas Tort Claims Act specifically waives sovereign immunity for government liability for:

(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:

(A) the property damage, personal injury, or death arises from the operation or use of a motor driven vehicle or motor driven equipment; and

(B) the employee would be personally liable to the claimant according to Texas law; and

(2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.

TEX.CIV.PRAC. & REM.CODE ANN. § 101.021 (Vernon 1986).

Classen's claim does not fall within paragraph (1) because the summary judgment record establishes that her wrongful discharge claim did not arise from "the operation or use of a motor driven vehicle ... or equipment." Her claim does not fall under paragraph (2) because the summary judgment record establishes that a "condition or use of tangible personal or real property" did not cause her injury. Viewing the summary judgment record in the light most favorable to Classen, the evidence establishes there was no waiver of immunity under the tort claims act for her claim.

Classen asserts that requiring authority under the Texas Tort Claims Act for her wrongful discharge claim circumvents the legislative intent and clear purpose of the wrongful discharge statute. She says that this and other courts have broadly interpreted the wrongful discharge statute to fulfill its legislative purpose. When...