Kroger Co. v. Keng

• Decision Date: 24 August 2000
• Docket Number: No. 98-1012,98-1012
• Citation: 23 S.W.3d 347
• Parties: (Tex. 2000) The Kroger Co., Petitioner v. Sonja Keng, Respondent
• Court: Texas Supreme Court

Page 347

23 S.W.3d 347 (Tex. 2000)

The Kroger Co., Petitioner v. Sonja Keng, Respondent

No. 98-1012

SUPREME COURT OF TEXAS

Argued January 12, 2000.

Decided May 11, 2000.

Rehearing Overruled Aug. 24, 2000.

On Petition for Review from the Court of Appeals for the Twelfth District of Texas

Justice HANKINSON delivered the opinion of the Court.

The issue presented is whether a nonsubscriber to workers' compensation insurance is entitled to a jury question regarding its employee's alleged comparative responsibility for his or her injuries. Sonja Keng sued Kroger Company, a workers' compensation nonsubscriber, for work-related injuries. The trial court rendered judgment on the jury's verdict for Keng, and Kroger appealed. Kroger complained that the trial court erred in refusing to submit a comparative-responsibility question to the jury. The court of appeals affirmed, holding that the comparative-responsibility statute does not apply to Keng's claim, and that Kroger, as a nonsubscriber, is prohibited from using its employee's alleged negligence as a defense. 976 S.W.2d 882. Because Texas Labor Code § 406.033 precludes a finding of contributory negligence, which is a prerequisite to determining the parties' comparative responsibility, we hold that a nonsubscribing employer is not entitled to a jury question on its employee's alleged comparativeresponsibility. We therefore affirm the court of appeals' judgment.

Keng, a Kroger employee, suffered injuries while removing pie boxes from the shelves of a deli freezer at a Kroger store in Houston. As she started down the ladder she was using to remove the boxes from the freezer's top shelf, three boxes fell and hit her back, knocking her off the ladder and causing her to hit her chest on the cart below. Keng sued Kroger, a workers' compensation nonsubscriber, alleging that the store's negligence proximately caused her injuries. Kroger denied the allegations and responded that Keng's conduct either caused or contributed to the incident, entitling Kroger to protection under the comparative-responsibility statute.¹(1) See Act of June 2, 1987, 70th Leg., 1st C.S., ch. 2, § 2.04, 1987 Tex. Gen. Laws 40 ("In an action to recover damages for negligence . . . a claimant may recover damages only if his percentage of responsibility is less than or equal to 50 percent") (amended 1995) (current version at Tex. Civ. Prac. & Rem. Code § 33.001).

The parties tried the case to a jury. Kroger's proposed charge requested two jury questions: (1) whether the negligence, if any, of Keng, Kroger, or both proximately caused the occurrence; and (2) if the jury found that more than one party's negligence caused the occurrence, the percentage of negligence to attribute to each party. The trial court refused to submit Kroger's proposed charge, choosing instead to submit questions concerning only Kroger's alleged negligence. The jury found Kroger negligent and awarded Keng $30,000 in damages. The trial court rendered judgment on the verdict.

Kroger appealed, complaining that factually insufficient evidence supported the verdict and that the trial court erred in refusing to submit a comparative-responsibility question to the jury. The court of appeals affirmed. 976 S.W.2d 882. After holding that the verdict was not against the great weight and preponderance of the evidence, the court rejected Kroger's challenge to the trial court's charge. Id. at 893. The court reasoned that an employee's personal-injury action against a nonsubscribing employer is an "action to collect workers' compensation benefits," which is exempted from the statutory comparative-responsibility scheme. Id. at 891 (citing Tex. Civ. Prac. & Rem Code § 33.002(c)(1) ("This chapter does not apply to: (1) an action to collect workers' compensation benefits under the workers' compensation laws of this state.")). Additionally, the court determined that for the comparative-responsibility statute to apply, an employer must prove that its employee's negligence proximately caused the employee's injuries, which Labor Code § 406.033 prohibits nonsubscribing employers from proving. 976 S.W.2d at 892. The court therefore concluded that a comparative-responsibility question would necessarily yield an immaterial finding because, as a matter of law, an employee cannot be found contributorily negligent. Id.

Kroger petitioned this Court for review. We granted Kroger's petition to resolve a conflict among the courts of appeals concerning the propriety of submitting a comparative-responsibility question to the jury. Compare Brookshire Bros., Inc. v. Lewis, 997 S.W.2d 908, 919 (Tex. App.-Beaumont 1999, pet. denied) (stating that in a nonsubscriber case, the employee's comparative negligence does not apply and should not be submitted to the jury), Brookshire Bros., Inc. v. Wagnon, 979 S.W.2d 343, 347 (Tex. App.-Tyler 1998, pet. denied) (same), Torres v. Caterpillar, Inc., 928 S.W.2d 233, 237 n.3 (Tex. App.-San Antonio 1996, writ denied) (same), and Holiday Hills Retirement & Nursing Ctr., Inc. v. Yeldell, 686 S.W.2d 770, 774-75 (Tex. App.-Fort Worth 1985) (same), rev'd on other grounds, 701 S.W.2d 243 (Tex. 1985), with Byrd v. Central Freight Lines, Inc., 976 S.W.2d 257, 259-60 (Tex. App.-Amarillo 1998) (holding that comparative negligence is an element of an employee's action against his or her nonsubscribing employer), pet. denied per curiam, 992 S.W.2d 447 (Tex. 1999).

Kroger acknowledges that section 406.033 precludes a nonsubscribing employer from asserting its employee's common-law contributory negligence as a defense, but argues that precluding contributory negligence means only that an employer cannot assert its employee's negligence as an absolute bar to recovery. Kroger contends that it is, however entitled to assert the statutory defense of comparative responsibility. While Kroger recognizes that an action to collect workers' compensation benefits is expressly exempted from the comparative-responsibility statute's purview, it contends that an action against a nonsubscriber is necessarily not a suit to collect benefits. Kroger further maintains that this Court's decision in Texas Workers' Compensation Commission v. Garcia, 893 S.W.2d 504 (Tex. 1995), supports its position.

Keng disagrees. She contends that comparative responsibility is the legislative successor to, and a natural subset of, contributory negligence, which section 406.033 precludes nonsubscribers from relying on as a defense. Keng argues that to allow nonsubscribers to submit a jury question on comparative responsibility would effectively nullify section 406.033. Moreover, Keng urges that allowing a comparative-responsibility question would remove the very penalty -- the abrogation of certain common-law defenses -- that the Legislature intended would encourage employers to subscribe to workers' compensation insurance.

Whether Labor Code § 406.033 precludes an employer from asserting the defense of comparative responsibility is a matter of statutory construction. When construing a statute, we must give effect to the Legislature's intent. See Tex. Gov't Code §§ 311.021, 311.023, 312.005. We ascertain the Legislature's intent in the plain and common meaning of the words used. See id. § 311.011; Sorokolit v. Rhodes, 889 S.W.2d 239, 241 (Tex. 1994). We may also consider, among other things, the circumstances under which a statute was enacted, former statutory provisions, including laws on the same or similar subjects, and the consequences of a particular construction. See Tex. Gov't Code § 311.023. Because we should liberally construe the Workers' Compensation Act in favor of the injured worker, a strained or narrow construction of section 406.033 would be improper. See Miears v. Industrial Accident Bd., 232 S.W.2d 671, 675 (Tex. 1950); Pacific Indem. Co. v. Woodall, 253 S.W.2d 490, 492 (Tex. Civ. App.-Fort Worth 1952, writ ref'd). Moreover, it would be injudicious to construe the statute in a manner that supplies by implication restrictions on an employee's rights that are not found in section 406.033's plain language. See Miears, 232 S.W.2d at 675.

Labor Code § 406.033, which is part of the Workers' Compensation Act, governs an employee's personal-injury action against his or her employer,when the employer is a nonsubscriber under the Act. To encourage employers to obtain workers' compensation insurance, section 406.033 penalizes nonsubscribers by precluding them from asserting certain common-law defenses in their employees' personal-injury actions:

(a) In an action against an employer who does not have workers' compensation insurance coverage to recover damages for personal injuries or death sustained by an employee in the course and scope of the employment, it is not a defense that:

(1) the employee was guilty of contributory negligence;

(2) the employee assumed the risk of injury or death; or

(3) the injury or death was caused by the negligence of a fellow employee.

Tex. Lab. Code § 406.033(a).

To put the Legislature's intent in enacting section 406.033 in context, we briefly review the history of the Workers' Compensation Act. The Texas Legislature enacted the Act in 1913 in response to the needs of workers, who, despite escalating industrial accidents, were increasingly being denied recovery. See Garcia, 893 S.W.2d at 510-12. The Act allowed injured workers, whose employers subscribed to workers' compensation insurance, to recover without establishing the employer's fault and without regard to the employee's negligence. See Reed Tool Co v. Copelin, 689 S.W.2d 404, 407 (Tex. 1985). In exchange, the employees received a lower, but more certain, recovery than would have been possible under the common law. See id. Employers were, however, allowed to opt out of the system, resulting in their employees retaining their common-law rights. See Garcia, 893 S.W.2d at 511.

To discourage employers from making that choice, the Legislature included within the Act a...