Medina v. Herrera

• Decision Date: 19 September 1996
• Docket Number: No. 95-0885,95-0885
• Citation: 927 S.W.2d 597
• Parties: 39 Tex. Sup. Ct. J. 627 Lazaro MEDINA, Petitioner, v. Jose HERRERA and Interstate Forging Industries, Inc., Respondent.
• Court: Texas Supreme Court

Page 597

927 S.W.2d 597

39 Tex. Sup. Ct. J. 627

Lazaro MEDINA, Petitioner, v. Jose HERRERA and Interstate Forging Industries, Inc., Respondent.

No. 95-0885.

Supreme Court of Texas.

Argued Dec. 12, 1995.

Decided May 10, 1996.

Rehearing Overruled Sept. 19, 1996.

Stuart F. Lewis, Bryan, for Petitioner.

John D. Wittenmeyer, Houston, William W. Davidson, Angleton, for Respondent.

PHILLIPS, Chief Justice, delivered the opinion of the Court, in which GONZALEZ, HECHT, CORNYN, SPECTOR, OWEN, BAKER and ABBOTT, Justices, joined.

After suffering an injury at work, petitioner applied for and received workers' compensation benefits. We must determine whether his pursuit of that remedy now precludes him from pursuing various common law intentional tort claims against his employer and co-worker. The trial court granted summary judgment for both defendants, and the court of appeals affirmed. 905 S.W.2d 624. We hold that, under the facts of this case, petitioner's claim against his employer is barred as a matter of law by his election of the workers' compensation remedy, but his claim against his co-worker is not barred. We therefore affirm the judgment of the court of appeals in part and reverse in part, remanding petitioner's claim against his co-worker to the trial court for further proceedings.

I

Petitioner Lazaro Medina alleges that he was assaulted by his supervisor on October 31, 1991, while working at Interstate Forging Industries ("Interstate") in Navasota, Texas. According to Medina, he was riding on a forklift at work driven by his supervisor, Jose Herrera, when Herrera began punching him in the stomach. While attempting to get off the forklift to evade this attack, Medina asserts, he lost his balance and fell, injuring his back.

A week later, on November 6, 1991, Medina began missing work due to his back injury. The following day, Interstate reported the injury to its workers' compensation carrier and to the Workers' Compensation Commission. ¹ The carrier, Liberty Mutual Insurance Company, began paying temporary income benefits to Medina on November 20, 1991.

Shortly thereafter, Medina hired an attorney and filed a formal claim for compensation with the Commission. On the claim form, which was prepared by his attorney, Medina described the circumstances of his injury consistently with his present allegations. Liberty never contested that Medina's injury was compensable under the workers' compensation system, and that issue is no longer subject to dispute. See TEX.LAB.CODE § 409.021(c) (carrier must contest compensability of injury within sixty days after receiving notice of injury, or else it waives its right to do so).

Liberty ceased paying temporary income benefits on May 22, 1992, contending that Medina had reached maximum medical improvement. See TEX.LAB.CODE § 408.102. Disputing this evaluation, Medina requested a benefit review conference, see id. § 410.023, at which the parties failed to reach agreement. After a contested case hearing on January 20, 1993, see id. § 410.151, the hearing officer ruled that Medina had not yet reached maximum medical improvement, and thus he was entitled to continued temporary income benefits. Foregoing its right to appeal this ruling, see id. § 410.202, Liberty resumed paying temporary income benefits to Medina until November 3, 1993, the date of statutory maximum medical improvement. See id. § 401.011(30)(B). Thereafter, Liberty commenced paying impairment income benefits to Medina. It does not appear that Medina contested the impairment rating used by Liberty in calculating the duration of the impairment income benefits. See id. § 408.125.

Meanwhile, Medina sued Herrera and Interstate on October 28, 1993, seeking common law damages. Although he alleged no specific causes of action, Medina claimed that Herrera, while acting in the course and scope of his employment with Interstate, had intentionally injured him. After answering, both defendants moved for summary judgment, contending solely that Medina's suit for intentional tort was barred by his earlier election of the workers' compensation remedy. By that time, Liberty had paid Medina over $50,000 in workers' compensation benefits, was scheduled to pay weekly impairment income benefits until June 1994, and was obligated to pay future medical expenses flowing from Medina's injury for the rest of his life. See TEX.LAB.CODE § 408.021. The trial court granted summary judgment for both defendants on March 11, 1994.

The court of appeals affirmed the trial court's judgment. It concluded that the workers' compensation remedy and the common law intentional tort remedy are mutually exclusive, so that Medina, by electing the compensation remedy, waived any later claim for intentional tort. 905 S.W.2d at 628-29. We then granted Medina's application for writ of error.

II

The doctrine of "election of remedies" is an affirmative defense that, under certain circumstances, bars a person from pursuing two inconsistent remedies. See generally Bocanegra v. Aetna Life Ins. Co., 605 S.W.2d 848, 850-52 (Tex.1980). We must determine whether this doctrine bars Medina from pursuing intentional tort claims arising from his workplace injury because he earlier applied for and received workers' compensation benefits.

In Bocanegra, the Court noted that the election of remedies doctrine combines elements of estoppel, ratification, and unjust enrichment. 605 S.W.2d at 851. Although recognizing that the doctrine had been "widely criticized," id. at 850, we concluded that it survives in several branches of the law to prohibit inconsistent legal positions that may produce manifest injustice:

[A]n election will bar recovery when the inconsistency in the assertion of a remedy, right, or state of facts is so unconscionable, dishonest, contrary to fair dealing, or so stultifies the legal process or trifles with justice or the courts as to be manifestly unjust.

Id. at 851. Based on these principles, we articulated the following test:

The election doctrine, therefore, may constitute a bar to relief when (1) one successfully exercises an informed choice (2) between two or more remedies, rights, or states of facts (3) which are so inconsistent as to (4) constitute manifest injustice.

Id. Medina contends that defendants failed to establish three of these elements, any one of which would be sufficient to defeat their right to assert the election doctrine. We address his arguments in turn below.

A

Medina first argues that his receipt of workers' compensation benefits is not inconsistent with his present intentional tort claims. While we reject this contention as to Medina's claim against his employer, Interstate, we agree with Medina as to his claim against his supervisor, Herrera.

We first address Medina's claim against Interstate. There is no express provision in either the new Workers' Compensation Act or the former act expressly excluding coverage for an injury resulting from an employer's intentional tort. In Massey v. Armco Steel Co., 652 S.W.2d 932, 933 (Tex.1983), however, which was decided under the former act, we expressly stated that an employee's claim for workers' compensation and his or her claim against the employer at common law for intentional tort are mutually exclusive. See also Reed Tool Co. v. Copelin, 689 S.W.2d 404, 406 (Tex.1985); Castleberry v. Goolsby Bldg. Corp., 617 S.W.2d 665, 666 (Tex.1981). This result follows from Middleton v. Texas Power & Light Co., 108 Tex. 96, 185 S.W. 556 (1916), which, as a central tenet of upholding the constitutionality of the former act, held that the statute was not intended to apply to or affect an employee's common law claim for intentional tort against his employer. Id. at 560. There is nothing in the new Act which evidences any intention to change this result, as the operative provisions creating liability for compensation and shielding employers from common law liability are, in material respects, the same as the former act. Compare TEX.LAB.CODE §§ 406.031, 406.032, 408.001, with Tex.Rev.Civ.Stat. art. 8306, §§ 3, 3b, 5, 24; art. 8308, § 4.01; and art. 8309, § 1. We thus conclude that the new Act embodies the rule of Middleton and its progeny. While these decisions hold that the compensation remedy and intentional tort remedy against an employer are mutually exclusive, to analyze Medina's claim we must examine precisely what is meant by an "employer's intentional tort."

Middleton and its progeny clearly remove from the Act's coverage intentional torts attributable directly to an employer, such as where a partner of a partnership-employer personally assaults an employee, see Jones v. Jeffreys, 244 S.W.2d 924, 926 (Tex.Civ.App.--Dallas 1951, writ ref'd), or where a corporation specifically directs a servant to commit an assault on a fellow servant. See Richardson v. The Fair, Inc., 124 S.W.2d 885, 886 (Tex.Civ.App.--Beaumont 1939, writ dism'd judgm't cor.). Because the Act provides no coverage in these situations, the compensation remedy and the intentional tort remedy against the employer are factually inconsistent and thus mutually exclusive.

Medina's tort theory against Interstate, however, is that Herrera assaulted him while Herrera was acting in the "course and scope" of his employment with Interstate. Generally, a master is vicariously liable for the torts of its servants committed in the course and scope of their employment. See Houston Transit Co. v. Felder, 146 Tex. 428, 208 S.W.2d 880, 881 (1948). While we have stated that "[i]t is not ordinarily within the scope of a servant's authority to commit an assault on a third person," see Texas & Pac. Ry. Co. v. Hagenloh, 151 Tex. 191, 247 S.W.2d 236, 239 (1952), exceptions may exist where the assault, although not specifically authorized by the employer, is closely connected with the servant's authorized duties, such as where a security guard uses more force than is necessary in protecting the employer's property. Id. Because...