LeJeune v. Gulf States Utilities Co.

• Citation: 410 S.W.2d 44
• Decision Date: 08 December 1966
• Docket Number: No. 6837,6837
• Parties: Alice LeJEUNE, Individually and as Guardian, Appellant, v. GULF STATES UTILITIES COMPANY, Appellee. . Beaumont
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 44

410 S.W.2d 44

Alice LeJEUNE, Individually and as Guardian, Appellant, v. GULF STATES UTILITIES COMPANY, Appellee.

No. 6837.

Court of Civil Appeals of Texas.

Beaumont.

Dec. 8, 1966.

Rehearing Denied Dec. 29, 1966.

Long & Parker, Port Arthur, for appellant.

Orgain, Bell & Tucker, Beaumont, for appellee.

PARKER, Justice.

Alice LeJeune, individually and as guardian of the estate of the minor children of the marriage of Alice LeJeune and Joseph M. LeJeune, sued Gulf States Utilities Company for actual and exemplary damages based on the death of Joseph M. LeJeune on July 26, 1963, while an employee of Gulf States Utilities Company. Gulf States Utilities Company moved for and obtained a summary judgment against the plaintiff denying all of plaintiff's claims and causes of action wherein plaintiff sought to recover actual damages, decreeing that plaintiff's rights and claims for actual damages are limited to those under the Compensation Laws of the State of Texas without prejudice to plaintiff's right to try their suit, claim and cause of action against Gulf States Utilities Compamy, seeking recovery of exemplary damages by reason of alleged gross negligence of the defendant Gulf States Utilities Company. Trial was had upon the question of exemplary damages resulting in the court instructing a verdict against the plaintiff and in favor of the defendant Gulf States Utilities Company with final judgment entered that the plaintiff do have and recover nothing over and against the defendant . The plaintiff below will be called appellant and the defendant below will be called appellee or Gulf States Utilities Company.

THE SUMMARY JUDGMENT

The appellant's first point of error is as follows:

'The error of the Court in granting interlocutory summary judgment to the appellee, holding that the Court did not have jurisdiction to inquire into the working agreement between the Texas General Indemnity Company and Gulf States Utilities Company, which is a part of the Contract between these parties, designated as a Contract for Workmen's Compensation Insurance. In order to determine whether or not such agreement, which is a part of the Contract, is in derogation and would tend to restrict the operation of the Workmen's Compensation Law.'

This is the sole point of error appellant directs against the summary judgment.

Appellee's motion for summary judgment on the actual damage issue was predicated on the undisputed fact that appellee was a subscriber under the Workmen's Compensation Law and thereby was relieved of any liability for actual damages. Distinct and separate grounds, each established by the uncontradicted facts, were specified in the motion, to-wit: (a) res judicata; (b) estoppel and waiver; (c) election of remedies; (d) that the policy and endorsements were authorized by law of the State of Texas and approved by the State Board of Insurance Commissioners; (e) the fact that a standard workmen's compensation policy was in effect and that appellee had complied with the Act was alleged in the motion and supported by affidavit and certified copies. The court in granting the motion for summary judgment 'sustained each and all of the reasons and grounds specified in the motion for summary judgment .'

Undisputed facts are: On July 26, 1963, Gulf States Utilities Company was a subscriber to the workmen's compensation insurance law with insurance carried by Texas General Indemnity Company. This insurance policy has the stamp of approval of the Board of Insurance Commissioners dated April 6, 1948. The endorsement and plan of operation had been approved by the Casualty Insurance Commission of the State of Texas. Notices of injury and death of employees of a subscriber were given to the insurance carrier, which sets up and maintains reserves required by the insurance laws of the State of Texas. No adjustments are made to employers holding this type of policy and endorsement until after the losses have been ascertained and the proper reserve has been set up and maintained. The premiums paid were at the rate specified in the policy, which were rates fixed and approved by the State Board of Insurance. The foregoing was done in this case and under this policy.

'(1) Gulf States Utilities Company had duly filed with the Industrial Accident Board notice of having become a subscriber under the Act. Following the death of Joseph M. LeJeune, an employee of the Appellee, the following proceedings took place before the Industrial Accident Board of the State of Texas:

(a) Employer's first report of injury was filed.

(b) Appellant, Alice J. LeJeune, through her attorneys, filed notice of fatal injury, claim for compensation, and statement of beneficiary and death certificate.

(c) Letters of guardianship were filed showing Appellant's qualifications as guardian of the minor children.

(d) Report of initial payment of compensation was filed showing the compensation benefits were being paid.

(e) Appellant through her attorneys twice requested the Industrial Accident Board to set the cause for hearing and that an award be entered, and on October 11, 1963, the Industrial Accident Board of the State of Texas entered its final ruling, order and award, finding among other things, 'On July 26, 1963, Gulf States Utilities Company was a subscriber to the workmen's compensation insurance law with insurance carried by Texas General Indemnity Company. In their employ was Joseph M. LeJeune, whose average weekly wage produced a compensation rate of $35.00 per week under the Act. On said date Joseph M. LeJeune suffered accidental injury in the course of this employment, resulting in his death.' The Board further found and named the beneficiaries and ordered the Texas General Indemnity Company to pay the maximum compensation provided by law.'

Appellant sought and obtained this award of compensation, which has the effect of a final judgment, establishing that Gulf States Utilities Company was a subscriber to the Workmen's Compensation Insurance Law with the insurance carried by Texas General Indemnity Company, and received and accepted the benefits thereof. Appellant cannot be heard to assert the contrary and attempt to recover actual damages on the ground that Gulf States Utilities Company was not a subscriber under the Act. Sheek v. Texas Co., 286 S.W. 336 (Tex.Civ . App., 1926, n.w.h.); Gomillion v. Union Bridge & Construction Co. 5 Cir., 100 F.2d 937; Texas Employers' Ins. Ass'n v. Price, 300 S.W. 667 (Tex.Civ.App. 1927) application for writ dismissed, 117 Tex. 173, 300 S.W. 672 (1927); Constitution Indemnity Co. v. Shytles, 47 F.2d 441 (U.S. Circuit Court, 5th Circuit, 1931). Such cases hold that a common law damage suit for actual damages cannot be maintained against the employer in a case where compensation has been claimed, awarded and collected from the compensation carrier. An award of the Industrial Accident Board has the same force and effect as a judgment and is binding and conclusive on the parties. Middlebrook v. Texas Indemnity Ins. Co., 112 S.W.2d 311, err. dis., 131 Tex. 163, 114 S.W.2d 226; Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 64 S.Ct. 208, 88 L.Ed. 149.

There was a compensation policy in force in standard and approved form with notice of becoming a subscriber duly filed with the Industrial Accident Board as required by Articles 8306 § 3c and 8308 § 20, Vernon's Ann.Civ.St. The Workmen's Compensation Law provides that employees of a subscriber have no right of action at common law for actual damages. Art. 8306 §§ 3, 3a, V.A.C.S. Whether the premiums were paid or the manner in which paid was immaterial insofar as appellant is concerned. There was a compensation policy in force. Appellant invoked the jurisdiction of the Industrial Accident Board, obtained an award and has accepted the payments awarded.

The second proposition appellee relied upon in its motion for summary judgment was that in filing claim for compensation with the Industrial Accident Board and pursuing the same to a final ruling, order and award and accepting the compensation payments by virtue of such award, appellant was estopped to question the validity of the compensation policy. The third proposition relied on by appellee in its motion for summary judgment was that appellant having filed notice of injury and claim for compensation and pursued the same to final judgment and having received, collected and retained the benefits thereof, thereby made a final and binding election to proceed under the Workmen's Compensation Act of the State of Texas, and waived all claims for actual damages at common law. Art. 8306, §§ 3a and 3b; 22 Tex.Juris.2d, p. 674, 11; 34 Tex.Juris.2d, p. 480, 489; Hill v. Preston, 119 Tex. 522, 34 S.W.2d 780 (1931); Empire Gas & Fuel Co. v. Albright, 126 Tex. 485, 87 S.W.2d 1092 (1935); Daniel v. Goesl, 161 Tex. 490, 341 S.W.2d 892 (S.Ct.1960); Mueller v . Banks, 332 S.W.2d 783 (Tex.Civ.App.1960).

Under point of error No. 1 appellant states:

'We are here confronted with a situation in which the Texas General Indemnity Company, which has a permit to do business in the State of Texas, issued a Contract to the appellee, Gulf States Utilities Company, which purports to be a Workmen's Compensation Insurance Contract, and this Contract was issued on the regularly form approved by the Texas Insurance Commission and having attached thereto what purports to be an Endorsement called an Assessment and Participation Endorsement, said Endorsement was also approved by the Texas Insurance Commission.'

Further, appellant states: 'The appellant does not contend that a Participation and Assessment Endorsement placed on a Workmen's Compensation Insurance Contract is in derogation of the law, * * *.' Thus, appellant concedes the validity of the policy and the endorsement. The validity of the policy itself is not affected by the endorsement authorizing the 11% To be paid Texas General Indemnity Insurance Company for it is of no concern of the...