In re Porter
| Decision Date | 06 August 2021 |
| Docket Number | 06-21-00066-CV |
| Parties | IN RE DAMYIEN PORTER, WARFAB INDUSTRIES, INC., AND WARFAB, INC. |
| Court | Texas Court of Appeals |
Date Submitted: August 5, 2021
Original Mandamus Proceeding
Before Morriss, C.J., Burgess and Stevens, JJ.
In this original proceeding, Damyien Porter (Porter), Warfab Industries, Inc., and Warfab, Inc. (collectively Warfab) have filed a petition for a writ of mandamus requesting this Court to compel the trial court to vacate its order denying their plea to the jurisdiction and plea in abatement. We conclude that the record does not establish the right to mandamus relief. As a result, we deny the petition for a writ of mandamus.
On June 30, 2018, Lauren Vasquez was traveling as a passenger in a Warfab-owned pickup truck driven by Porter, a Warfab employee. According to Vasquez's petition, she was injured after Porter lost control of the vehicle and caused it to crash into a tree. She sued Porter and Warfab (collectively Relators) for several theories of negligence, alleged that Porter was operating within the course and scope of his employment at the time of the accident, and sought damages for reasonable past and future medical care, pain and suffering, past and future physical impairment, loss of earnings, and loss of earning capacity.
In their answer, Relators alleged that Warfab was a subscriber under the Texas Workers' Compensation Act (TWCA), that it had a workers' compensation policy at the time of the accident, and as a result, that Vasquez's claims were barred pursuant to the Texas Labor Code because she was also a Warfab employee. Relators filed a plea to the jurisdiction and a plea in abatement arguing that the trial court lacked jurisdiction to consider the case because Vasquez had not exhausted her administrative remedies. Relators' plea also alleged that Warfab had filed a claim with the workers' compensation insurance carrier and that it was assigned to adjuster Richard Martinez. In support, Relators attached an unverified, unsworn document purporting to be a copy of Warfab's workers' compensation and employer's liability insurance policy issued by the Hartford, which stated it would cover bodily injury if it arose "out of and in the course of the injured employee's employment." No other documents were attached to Relators' plea.
In response, Vasquez admitted that she did not pursue a worker's compensation claim because she was not acting in the course and scope of her employment during the accident. The response attached a verified copy of Warfab's interrogatory responses, which were answered by Safety Director Jimmy Dean Smith, who said that the accident happened at 1:15 p.m. A verified copy of Vasquez's timecard showed that, on the day of the accident, she clocked in at 8:06 a.m. and clocked out at 11:08 a.m. A verified copy of her earnings statement showed that Vasquez was only paid for three hours of work on the day of the accident.
On August 27, 2020, the trial court denied Warfab's plea to the jurisdiction. On November 9, Relators filed a motion for reconsideration arguing that the evidence created a question of fact concerning whether Vasquez was acting in the course and scope of her employment. Again, Relators alleged that Warfab was a subscriber under the TWCA and, in support of this assertion, attached another unverified, unsworn document purporting to be a copy of Warfab's workers' compensation and employer's liability insurance policy. Relators also attached affidavits from Smith[1] and Porter[2] attempting to challenge Vasquez's evidence on whether she was in the course and scope of her employment.
In response, Vasquez objected to Relators' unverified, unsworn copy of Warfab's purported workers' compensation insurance policy on the ground that it was unauthenticated and argued that Relators had not brought forth any evidence showing that Warfab subscribed to workers' compensation insurance on the date of the accident. Vasquez also objected to Smith's and Porter's affidavits as conclusory statements that contained hearsay.
The trial court held a hearing on Relators' motion on December 22, 2020. Relators have not provided this Court with a transcript of that hearing. Even so, Relators represented in a subsequent motion that, As a result, it appears that the trial court sustained Vasquez's objection. To remedy the issue, Relators filed supplemental evidence in support of their motion for reconsideration on March 23, 2021.
The supplemental evidence included an insurance policy authenticated by a business record affidavit, which was different from the previous unverified policies Relators had presented to the trial court. While effective on the date of the accident, the authenticated policy did not show that Warfab had workers' compensation coverage. Instead, it stated, under a provision labeled "[e]xclusions," that the "insurance [did] not apply to . . . '[b]odily injury,' . . . and 'personal injury'" or to "Workers' Compensation." It also stated that the insurance company would not or "[t]o a person, whether or not an 'employee' of any insured, if benefits for the 'bodily injury' [were] payable or must be provided under a workers' compensation or disability benefits law or a similar law."
The affidavit did not state whether Warfab had workers' compensation coverage on the date of the accident. On April 27, 2021, the trial court denied Warfab's motion to reconsider. Relators now bring this original proceeding.
"To be entitled to mandamus relief, the relator must show (1) that he has no adequate remedy at law and (2) that the action he seeks to compel is ministerial, not one involving a discretionary or judicial decision." In re Crawford, 560 S.W.3d 357, 363 (Tex. App.- Texarkana 2018, orig. proceeding) (citing State ex rel. Young v. Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding)). "The relator is obligated to provide this Court with a record sufficient to establish his right to mandamus relief." Id. (). "Before mandamus may issue, the relator must show that the trial court had a legal duty to perform a ministerial act, was asked to do so, and failed or refused to act." Id.
"In addition to showing that the trial court had no option but to have performed the act urged by the relator, the relator must also have no adequate remedy at law." Id. "An appellate remedy is 'adequate' when any benefits to mandamus review are outweighed by the detriments." Id. (citing In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004) (orig. proceeding). "[A]n appellate remedy is not inadequate merely because it may involve more expense or delay than obtaining an extraneous writ." Id. (quoting In re Prudential Ins. Co. of Am., 148 S.W.3d at 136).
"Absent an extraordinary circumstance, 'a denial of a motion to dismiss or a plea in abatement is a ruling incident to the ordinary trial process which will not be corrected by mandamus, but by the legal remedy of the ordinary appellate process.'" Id. (); see In re State Bar of Tex., 113 S.W.3d 730, 734 (Tex. 2003) (orig. proceeding). "Mandamus review is not-and should not be-an easily wielded tool, but such review of significant rulings in exceptional cases may be essential to, among other things, 'spare private parties and the public the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings.'" In re Crawford, 560 S.W.3d at 363-64 ().
An exception to the general rule that mandamus review is unavailable from an order denying a plea to the jurisdiction exists in situations when a state agency has exclusive jurisdiction or a trial court's order interferes with the authority of a state agency. See In re Entergy Corp., 142 S.W.3d 316, 321-22 (Tex. 2004) (orig proceeding); In re State Bar of Tex., 113 S.W.3d at 734. "The Texas Worker's Compensation Act provides that the recovery of worker's compensation benefits is the exclusive remedy of an employee covered by worker's compensation insurance for a work-related injury." In re Tex. Mut. Ins. Co., No. 05-05-00944-CV, 2005 WL 1763562, at *2 (Tex. App.-Dallas July 27, 2005, orig. proceeding) (mem. op.) (citing ...
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