Copelin v. Reed Tool Co.

• Decision Date: 30 August 1984
• Docket Number: No. 01-83-0785-CV,01-83-0785-CV
• Citation: 679 S.W.2d 605
• Parties: Judy A. COPELIN, Appellant, v. REED TOOL CO., Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 605

679 S.W.2d 605

Judy A. COPELIN, Appellant, v. REED TOOL CO., Appellee.

No. 01-83-0785-CV.

Court of Appeals of Texas Houston (1st Dist.).

Aug. 30, 1984.

Rehearing Denied Aug. 11, 1984.

Robert D. McPherson, Houston, for appellant.

W.D. Carter, Fulbright & Jaworski, Charles W. Hurd, III, Fulbright & Jaworski, Patricia J. Kerrigan, Fulbright & Jaworski, Houston, for appellee.

Before DOYLE, DUGGAN and LEVY, JJ.

OPINION

DOYLE, Justice.

This is the second appeal resulting from a suit for loss of consortium. Appellant, Judy A. Copelin, is the wife of George Copelin, a former machine operator for appellee, Reed Tool Company. George Copelin suffered severe brain damage and was left in a coma due to injuries suffered while in the course of his employment. Appellant's claim for damages is based on her husband's injuries.

Judy Copelin alleged that Reed Tool's intentional misconduct, gross negligence or negligence caused her husband's injury. The trial court granted Reed Tool's motion for summary judgment on the basis that Judy Copelin's action was derivative and could not be maintained, because her husband's suit for physical injuries was barred by the Texas Workers' Compensation Act. Tex.Rev.Civ.Stat.Ann. art. 8306, sec. 3.

The Supreme Court held that Judy Copelin's action for grossly negligent impairment of consortium was barred by her husband's workers' compensation agreement, but that her action for intentional impairment of consortium was maintainable, since neither the Act nor George Copelin's acceptance of workers' compensation benefits could destroy this separate property claim. Reed Tool Co. v. Copelin, 610 S.W.2d 736 (Tex.1980).

The case was remanded to the district court because of the existence of a material issue of fact as to whether George Copelin was injured by Reed Tool's intentional misconduct. Reed Tool again moved for a summary judgment. The company asserted that there was no genuine issue of material fact concerning an intentional injury. Appellant filed no response, and the summary judgment was granted.

In her sole ground of error, appellant contends that the trial court erred in granting the summary judgment, because there is a question of fact regarding intentional injury that should have been submitted to a jury. Appellee responds that by failing to file a written response to the summary judgment motion, appellant did not preserve error.

Tex.R.Civ.P. 166-A(c) provides that upon the filing of a motion for summary judgment:

The judgment sought shall be rendered forthwith [if the summary judgment proof shows that] there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the issues as expressly set out in the motion or in an answer or any other response.

If no answer is filed to a motion for summary judgment, the only issue which the non-movant may raise on appeal is that the grounds expressly presented to the trial court by the movant's motion are insufficient as a matter of law to support a summary judgment. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex.1979). See generally Hittner, Summary Judgments in Texas, 35 Baylor L.Rev. 207 (1983).

In the first appeal of this case, the Supreme Court applied this same rule:

Reed Tool moved for summary judgment alleging that there was no issue of fact and it was entitled to judgment as a matter of law. Judy Copelin filed no written response or written answer to the motion. She was, therefore, limited in the court of civil appeals to the sole contention that the grounds presented in Reed Tool's motion are insufficient as a matter of law to support summary judgment.

Reed Tool Co., 610 S.W.2d at 739. Thus, filing a written response in opposition to the motion for summary judgment was not required to preserve the error claiming that appellee's proof was insufficient as a matter of law.

Judy Copelin alleges that appellee Reed Tool intentionally caused injury to her husband because it required him to operate a machine known to be dangerous under unsafe conditions. Reed Tool relies on deposition testimony of two of its former employees, Willie Graves, Jr., and his son, Carl Graves, as proof of lack of intent. Both testified that they did not believe that anyone at Reed Tool had intentionally injured George Copelin. However, Carl Graves also testified that the machine on which George Copelin had been injured was "known to be the unsafest machine in the department," that the machine was known as "jaws," that other workers had been injured by the machine, that Reed Tool supervisors responded to complaints concerning safety with indications that the complaining employee might lose his job, and that George Copelin was working 12-hour shifts and looked "zonked."

This testimony is merely evidentiary; it is insufficient to negate as a matter of law a finding of intent. At most, this testimony raises a fact issue as to whether Reed Tool's actions...