Mo-Vac Serv. Co. v. Escobedo

• Decision Date: 12 June 2020
• Docket Number: No. 18-0852,18-0852
• Citation: 603 S.W.3d 119
• Parties: MO-VAC SERVICE COMPANY, INC., Petitioner v. Primitivo ESCOBEDO, Individually, San Juanita Escobedo, Individually, and Martha Escobedo, Individually and as Representative of the Estate of Fabian Escobedo, Respondents
• Court: Texas Supreme Court

603 S.W.3d 119

MO-VAC SERVICE COMPANY, INC., Petitioner

v.Primitivo ESCOBEDO, Individually, San Juanita Escobedo, Individually, and Martha Escobedo, Individually and as Representative of the Estate of Fabian Escobedo, Respondents

No. 18-0852

Supreme Court of Texas.

Argued February 26, 2020

Opinion delivered: June 12, 2020

J. Joseph Vale Jr., Mike Mills, Susan R. Sullivan, Atlas, Hall & Rodriguez, L.L.P., 818 Pecan Ave., McAllen, TX 78501, for Petitioner.

Armando P. Duran, Armando P. Duran, PLLC, P.O. Box 516, Alamo, TX 78516-0516, Stuart J. Starry, The Starry Law Firm, PLLC, 1500 N. Big Spring, Midland, TX 87047, for Respondents.

Elizabeth G. Bloch, Greenberg Traurig, LLP, 300 West 6th Street, Suite 2050, Austin, TX 78701, for Amicus Curiae Associated General Contractors of Texas—Highway, Heavy, Utilities & Industrial Branch.

Thomas C. Wright, Wright Close & Barger LLP, One Riverway, Suite 2200, Houston TX 77056, for Amicus Curiae Berkel & Company Contractors, Inc.

Danica Lynn Milios, Jackson Walker L.L.P., 100 Congress Ave., Suite 1100, Austin, TX 78701, Jennifer Caughey, Jackson Walker LLP, 1401 McKinney, Suite 1900, Houston, TX 77010, for Amici Curiae Martin Resource Management Corporation, Southern Multifoods, Inc., Texans for Lawsuit Reform, Texas Association of Business, Texas Automobile Dealers Association.

Russell S. Post, Beck Redden LLP, 1221 McKinney Street, Suite 4500, Houston, TX 77010-2010, for Amici Curiae Tyler Lee and Leigh Ann Lee, Individually and as Next Friend of Sydney Rose Lee, Minor.

Chief Justice Hecht delivered the opinion of the Court.

The Texas Workers' Compensation Act (the Act) provides that statutory benefits are the exclusive remedy for a covered employee or his legal beneficiary against his employer for work-related injury or death.¹ But in upholding the Act in 1916, three years after it was passed, we excepted an action for intentional injury to an employee that we viewed as protected by the Texas Constitution's Open Courts provision.² The Legislature has never codified or rejected that intentional-injury exception to the Act's exclusive remedy, and we have reaffirmed it.³

Relying on the Restatement (Second) of Torts , we have defined intent as having two parts, one purposive—that "the actor desires to cause consequences of his act"—and the other shown by his "belie[f] that the consequences are substantially certain to result from it."⁴ The latter component has proven difficult to apply, in Texas and elsewhere, especially in workers' compensation cases.⁵ The case before us presents the opportunity to provide clarification.

We reverse the judgment of the court of appeals⁶ and render judgment for the petitioner employer.

I

Petitioner Mo-Vac Service Company, Inc. is a trucking and warehousing company servicing the oil patch from several Texas cities including Dilley, a small town some 70 miles southwest of San Antonio. Mo-Vac employed more than 30 drivers operating out of the Dilley yard, hauling liquids to and from drilling sites in eighteen-wheeler tanker trucks. One of them, Fabian Escobedo, 48, a 12-year employee, died when his rig ran off the highway and rolled over in the early morning hours of May 30, 2012. His estate representative is suing to recover damages for his pain and suffering before he died.⁷

Plaintiff contends that Escobedo fell asleep at the wheel due to fatigue from being forced to work grueling hours. Mo-Vac is a subscriber to the workers' compensation system. As we explain more fully below, Plaintiff can succeed only by proving that Mo-Vac intentionally caused Escobedo's accident in the sense that it believed the accident was "substantially certain to result" from his being overworked.⁸ There is evidence that Mo-Vac forced Escobedo to work excessive hours. The question is whether there is any evidence that Mo-Vac believed his accident was substantially certain to result.

Escobedo's time records show that in the eight days leading up to the accident, he worked 137 hours, averaging 17 hours a day. He worked 20 hours three days before the accident, 14 hours two days before, and 19 hours the previous day—in total, all but 19 hours out of 72.⁹ Plaintiff's expert estimated that the day before the accident, Escobedo had only a few hours' rest before leaving the Dilley yard about 9:00 p.m. to make deliveries at two wellsites. The expert further estimated that Escobedo arrived at the first well about 9:30 p.m. and the second about 1:30 a.m., staying an hour at each. He traveled a two-lane state highway that he knew well. About 3:00 a.m., 30 minutes into his three-hour return to Dilley, Escobedo rounded a slight curve to the left in a rural area, struck a delineator pole, and veered onto the improved right-hand shoulder and a grassy area. He tried to swerve back onto the highway but overcorrected, rolling his truck and trailer. He was not wearing a seat belt and died of positional asphyxia.

Mo-Vac was pushing all its drivers hard to keep up with business demands in the west and south Texas oil boom. Their working conditions are described in an affidavit by their manager, Urbano Garza, as follows.¹⁰

Garza stated that he was "forced" by "clear directive" from upper management "to have the drivers work unsafe hours rather than let a competitor get the jobs which were demanded by our customers." Even though it was "obviously unsafe to nearly everyone in company management," Mo-Vac drivers were "routinely working 100 hours or more per week" and "19 to 24 hours straight—day after day." "It was becoming insane." If he "mentioned it as a concern", Garza said, he "would get an ‘ear full’ or a verbal reprimand from [his] supervisors about keeping production up at all costs." Because Mo-Vac was not adding enough drivers, "[m]aking the current drivers do overtime was the only way to get the production higher." In the frenzied months before Escobedo's accident, he had logged as many as 138 hours of overtime for a two-week pay period and other drivers logged even more. The record reflects that several Mo-Vac drivers had logged well over 200 hours of overtime in a single paycheck period.

According to Garza, Mo-Vac knew its drivers' hours violated state standards and encouraged them to "alter their work logs to appear that they were in compliance with DOT sleep and rest regulations". Mo-Vac's compliance clerk, Garza said, reportedly walked drivers "through the process of cheating" on their logs, moving work from one day to another. The clerk told drivers that doing so would "make it appear that they did not exceed the number of straight hours worked" without rest. Garza stated that senior management "indicated that they were aware of the practice and nevertheless encouraged it." When supervisors expressed safety concerns, they were "shut down" by management. Garza said Mo-Vac's operations manager, Mike Flanagan, "would tell me to get the numbers [of driving hours] up and told me to simply tell the drivers ‘don't get killed out there.’ " Garza was kept so busy managing the production Mo-Vac "insisted upon" that it was "impossible for [him] to monitor" the hours of "each and every one of the drivers."

Garza's affidavit continues:

When I mentioned to Mr. Flanagan that one of our drivers was going to get killed because of our insistence on unreasonable driving hours, he said to me: "we will cross that bridge when we come to it." His verbal statements and interactions with me and other staff members demonstrated to me that he was clearly anticipating an eventual injury or death, but intentionally pressed for more production because of the opportunity to make immediate money. By his actions and statements he made it clear that he did not want anything (including compliance with safe rest periods) to get in the way. From what I personally observed of upper management's behavior at MoVac in 2012, and at the time of Mr. Escobedo's death, they demonstrated verbally that they were plainly aware of the substantial certainty that one of my drivers, including Mr. Escobedo, would be injured or killed due to overwork. What I witnessed was not mere carelessness or recklessness. It was intentional conduct that I observed. They made it clear, through their actions and words, that they were more concerned with the immediate prospect of making money—even when I verbally confronted them with the clear and certain tragedy waiting to happen. Mr. Flanagan was not simply dismissive of the possibility of a crash—instead, on more than one occasion, he acknowledged to me his awareness that a crash was inevitable and indicated to me that we should press on with getting the production up, because there was money to be made.

To make matters worse, Garza stated, drivers had poor sleeping conditions. Trucks did not have sleeper berths, and Mo-Vac encouraged drivers "to sleep on a sheet of plywood stretched across their seats." "[W]orking long hours", he said, "it [wa]s difficult to get by with catnaps". Mo-Vac managers "knew this, and really did not care."

"Based on what I observed as company policy and practice," Garza concluded, "the cause of Mr. Escobedo's death was fatigue caused by an intentional practice of overworking drivers and falsifying logs."

[F]rom what I observed, it would be simply impossible for the management at MoVac to have been unaware in May of 2012 that they were going to cause an injury or death. They intentionally placed my drivers, including Mr. Escobedo, in a situation that they acknowledged was substantially certain to injure or kill one of the drivers. They wanted to make money. From what I observed, Mr. Escobedo's death was caused by greed.¹¹

The trial court granted Mo-Vac's no-evidence motion for summary judgment. The court of appeals reversed and remanded, concluding that whether Mo-Vac believed its conduct was substantially certain to cause Escobedo's death remained an issue of fact.¹²

We granted Mo-Vac's petition for review.

II

Plaintiff does not contend that Mo-Vac purposefully killed Escobedo but...