International Union United Auto. Aerospace & Agr. Implement Workers of America Local 119 v. Johnson Controls, Inc.

• Citation: 813 S.W.2d 558
• Decision Date: 13 June 1991
• Docket Number: No. 05-88-00772-CV,05-88-00772-CV
• Parties: INTERNATIONAL UNION UNITED AUTOMOBILE AEROSPACE & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA LOCAL 119 & Robert Sullivent, Appellants, v. JOHNSON CONTROLS, INC. & American Motorists Insurance Company, Appellees.
• Court: Court of Appeals of Texas

Page 558

813 S.W.2d 558

INTERNATIONAL UNION UNITED AUTOMOBILE AEROSPACE &amp AGRICULTURAL IMPLEMENT WORKERS OF AMERICA LOCAL 119 & Robert Sullivent, Appellants, v. JOHNSON CONTROLS, INC. & American Motorists Insurance Company, Appellees.

No. 05-88-00772-CV.

Court of Appeals of Texas Dallas.

June 13, 1991.

Rehearing Overruled Aug. 6, 1991.

Dale B. Tillery, Dallas, for appellants.

Jonathan C. Wilson, Lancaster Smith, Harvey L. Davis, Dallas, for appellees.

Before STEWART, OVARD and BURNETT, JJ.

OPINION ON REHEARING

STEWART, Justice.

We grant in part and overrule in part appellants' motion for rehearing, although it does not change our disposition of this appeal. We withdraw our opinion and vacate our judgment dated March 7, 1991. Further, we overrule Johnson's and American's motions for rehearing. This is now the Court's opinion.

International Union United Automobile Aerospace and Agricultural Implement Workers of America Local 119 (the Union) ¹ and Robert Sullivent (Sullivent) ² appeal from a summary judgment entered against them and in favor of Johnson Controls Inc. (Johnson) and American Motorists Insurance Company (American). In two points of error, appellants contend that the trial court erred in: (1) granting Johnson's and American's motions for summary judgment; and (2) denying their motion for summary judgment. We affirm in part and reverse and remand in part.

BACKGROUND FACTS

In October 1984, Sullivent, a Johnson employee and Union member, suffered an occupational injury which rendered him unable to work. Sullivent filed a claim for workers' compensation benefits with Employers' Insurance of Wausau (Wausau), Johnson's compensation carrier at the time of the injury. Wausau granted Sullivent's request for benefits. Sullivent also requested a leave of absence pursuant to the collective bargaining agreement between Johnson and the Union. Under the agreement, an employee who is granted a leave of absence continues to accumulate seniority during his absence, and Johnson continues to pay the employee's medical and dental On March 20, 1986, J.E. Pittman, Johnson's personnel manager, wrote Sullivent a letter in response to Sullivent's request for an additional extension of his leave of absence. The letter stated that Pittman was not approving an extension of Sullivent's current medical leave of absence because Sullivent was not being seen by Dr. Kurt, the plant physician, on a regular basis (at least once every six weeks). Pittman requested that Sullivent make immediate arrangements to see Dr. Kurt and stated that, after Sullivent had been examined by Dr. Kurt, Pittman would reconsider Sullivent's current medical leave of absence extension request. When Sullivent refused to be examined, Pittman sent another letter, dated April 21, 1986, to Sullivent, with a copy to the Union, informing Sullivent that, if he did not "make arrangements to have an examination by Dr. Kurt prior to May 5, 1986, then [his] discharge ... will be effective on May 5, 1986." Pittman relied on a violation of Plant C rule number 18, dealing with disobedience, insubordination, or refusing to perform work or carry out reasonable assignments or instructions, as authorization for Sullivent's discharge.

insurance premiums. Johnson granted Sullivent's initial request and several subsequent requests for extensions of his leave of absence.

On April 29, 1986, appellants filed an original and class-action petition against Johnson, Wausau, and American, who had become Johnson's workers' compensation carrier on October 1, 1985. They alleged that Johnson's practice of requiring physical examinations of occupationally injured employees and its expressed intent to terminate Sullivent and other injured employees who were similarly situated for failure to appear before the plant physician for the purpose of an examination violated the Texas Workers' Compensation Act (the Act), including but not limited to articles 8306, section 7 and 8307, section 4, and the Industrial Accident Board (IAB) Rules. Appellants further alleged that Johnson tortiously interfered with Sullivent's contractual relationship with his lawyer by communicating directly with Sullivent concerning his occupational injury instead of communicating with his chosen legal representative.

Appellants also alleged that the actions of Wausau and American not only violated the Act, including but not limited to articles 8306, section 7 and 8307, section 4 and the IAB Rules, but also the Deceptive Trade Practices-Consumer Protection Act (DTPA) and section 21.21 of the Insurance Code. They further alleged that Wausau and American "colluded and conspired" with Johnson to intentionally violate appellants' rights under the Act and to tortiously interfere with Sullivent's contract for legal services. Appellants prayed for a temporary restraining order, temporary and permanent injunctive relief, a declaratory judgment, damages against all three defendants for the alleged tortious interference with Sullivent's contract with his attorney, and damages against Wausau and American for violation of the DTPA and the Insurance Code.

Following service of process, Johnson removed the case to federal court, alleging that the causes of action were preempted by federal law because Johnson was governed by the collective bargaining agreement. The federal court remanded the case to the state trial court, holding that the causes of action alleged by appellants arise under the workers' compensation laws of Texas.

On August 5, 1986, appellants filed a motion for partial summary judgment on the issue of liability for alleged violations of articles 8306, section 7 and 8307, section 4. On September 12 and 16, 1986, American and Johnson, respectively, filed their motions for summary judgment. On January 26, 1987, the trial court denied appellants' partial motion, granted Johnson's and American's motions for summary judgment, and ordered all reference to a purported class action by plaintiffs be eliminated and removed from the pleadings remaining on file with the court. These judgments were interlocutory because Wausau remained a party to the litigation. On November 12, 1987, appellants filed a first amended original and class action petition.

On December 11, 1987, the trial court ordered that all references to Johnson and American and all references to a class action in the amended petition be stricken and that the claims against Johnson and American be severed and dismissed. On March 8, 1988, the trial court severed appellants' claims against Johnson and American from their claims against Wausau, thus finalizing the previously granted interlocutory summary judgments. Appellants perfected their appeal from this order on June 2, 1988.

On January 30, 1989, Johnson filed a motion to dismiss the appeal, alleging that a subsequent arbitration decision in its favor on October 21, 1988, preempted appellants' causes of action under the Act; American filed a motion to dismiss on February 13, 1989. By order dated May 4, 1989, this Court dismissed the appeal with prejudice. The Supreme Court of Texas reversed and remanded the cause to this Court for consideration of appellants' points of error. International Union v. Johnson Controls, Inc., 786 S.W.2d 265 (Tex.1990) (per curiam).

STANDARD OF REVIEW

Any party may move for a summary judgment under rule 166a of the Texas Rules of Civil Procedure. When both parties move for summary judgment, each party must carry its own burden, and neither can prevail because of the failure of the other to discharge its burden. The Atrium v. Kenwin Shops of Crockett, 666 S.W.2d 315, 318 (Tex.App.--Houston [14th Dist.] 1984, writ ref'd n.r.e.). An order denying a motion for summary judgment is not appealable except, as here, when both parties have filed a motion for summary judgment and the court has granted one of the motions and overruled the other. Garcia v. City of Lubbock, 634 S.W.2d 776, 780 (Tex.App.--Amarillo 1982, writ ref'd n.r.e.).

The Texas Supreme Court has established the following standards for reviewing a motion for summary judgment:

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 his favor.

Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985).

To establish a right to recover as a matter of law, the plaintiff as movant must prove conclusively all elements of its cause of action. Plano Indep. School Dist. v. Oake, 682 S.W.2d 359, 364 (Tex.App.--Dallas 1984), rev'd on other grounds, 692 S.W.2d 454 (Tex.1985). For the defendant as movant to prevail on a summary judgment, he must either (1) disprove at least one element of plaintiff's theory of recovery or (2) plead and conclusively establish each essential element of an affirmative defense, thereby rebutting the plaintiff's cause of action. Traylor v. Unitedbank Orange, 675 S.W.2d 802, 804 (Tex.App.--Beaumont 1984, writ ref'd n.r.e.). A matter is conclusively established if ordinary minds cannot differ as to the conclusion to be drawn from the evidence. Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex.1982). In a summary judgment case, the question on appeal is not whether the summary judgment proof raises a fact issue with reference to the essential elements of a cause of action, but whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970).

NATURE OF THE CASE

In their original petition, appellants alleged two theories of recovery...