Robertson v. Home State County Mut. Ins. Co.

• Decision Date: 15 July 2010
• Docket Number: NO. 2-08-280-CV,2-08-280-CV
• Parties: PAUL ROBERTSON APPELLANT v. HOME STATE COUNTY MUTUAL APPELLEE INSURANCE COMPANY
• Court: Texas Court of Appeals

PAUL ROBERTSON APPELLANT

v.HOME STATE COUNTY MUTUAL APPELLEE INSURANCE COMPANY

NO. 2-08-280-CV

Court of Appeals of Texas

DELIVERED: July 15, 2010

OPINION ON REHEARING

Appellant Paul Robertson filed a motion for rehearing of our opinion issued October 8, 2009. We deny Robertson's motion for rehearing, withdraw our opinion and judgment dated October 8, 2009, and substitute the following.

I. Introduction

This is an insurance coverage case. Appellant Paul Robertson obtained a judgment against his employer, Ray Redi-Mix, Inc., for damages for personal injuries that he sustained while on the job. Appellee Home State County Mutual Insurance Company, Redi-Mix's transportation insurer, denied coverage under severalexclusions contained in Redi-Mix's policy of insurance for Robertson's claims against Redi-Mix and obtained a summary judgment against Robertson based on those exclusions. In two issues, Robertson argues that the trial court erred by granting Home State's motion for summary judgment. We will affirm.

II. Factual and Procedural Background

According to Robertson's first amended original petition, Redi-Mix employed him as a truck driver. On November 3, 2005, Robertson informed Redi-Mix that the truck that he had been assigned to drive had a defective tarp, but Redi-Mix instructed him to make do with the tarp he had. The next day, the tarp malfunctioned, causing Robertson to sustain bodily injuries.

Redi-Mix did not provide workers' compensation insurance coverage to its employees. It did, however, have a truckers' liability insurance policy issued by Home State (the "Policy") that provided coverage for "all sums an insured legally must pay as damages because of bodily injury or property damage to which [the] insurance applies, caused by an accident and resulting from the ownership, maintenance or use of a covered auto." The Policy contained the following relevant exclusions to which coverage did not apply:

3. WORKERS COMPENSATION

Any obligation for which the insured or the insured's insurer may be held liable under any workers compensation, disability benefits or unemployment compensation law or any similar law.

4. EMPLOYEE INDEMNIFICATION AND EMPLOYER'S LIABILITY

Bodily injury to:

a. An employee of the insured arising out of and in the course of employment by the insured; or

b. The spouse, child, parent, brother or sister of that employee as a consequence of paragraph a. above.

This exclusion applies

(1) Whether the insured may be liable as an employer or in any other capacity; and

(2) To any obligation to share damages with or repay someone else who must pay damages because of the injury.

But this exclusion does not apply to bodily injury to domestic employees not entitled to workers compensation benefits or to liability assumed by the insured under an insured contract.

Robertson sued Redi-Mix for the injuries that he allegedly sustained on November 4, 2005, and he sought a declaratory judgment that Home State had a duty to defend, to indemnify, or to both defend and indemnify Redi-Mix for his claims against Redi-Mix. Home State filed a counterclaim seeking a declaratory judgment that it had neither a duty to defend nor a duty to indemnify Redi-Mix for the claims made by Robertson against Redi-Mix because the workers' compensation and employee exclusions contained in the Policy applied to exclude coverage under the Policy. Robertson obtained a final judgment against Redi-Mix for, among other things, damages in the amount of $967,631.52, and the trial court severed Robertson's suit against Redi-Mix from his remaining claim against Home State. Home State moved for summary judgment on the grounds (1) that coverage under the Policy for Robertson's claims against Redi-Mix is excluded under the workers' compensation exclusion, (2) that coverage under the Policy for Robertson's claims against Redi-Mix is excluded under the employee exclusion and did not fall within the "domestic employee" exception, and (3) that the truck to which Robertson was assigned when he sustained injuries is not a listed vehicle under the Policy. The trial court granted Home State's motion for summary judgment on the grounds that Robertson's claims against Redi-Mix are excluded under both the workers' compensation and employee exclusions. Robertson appeals.

III. Summary Judgment Standard of Review

In a summary judgment case, the issue on appeal is whether the movant met the summary judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). The burden of proof is on the movant, and all doubts about the existence of a genuine issue of material fact are resolved against the movant. Sw. Elec. Power Co., 73 S.W.3d at 215. Once the movant produces sufficient evidence to establish the right to summary judgment, the burden shifts to the nonmovant to come forward with competent controverting evidence raising a genuine issue of material fact withregard to the element challenged by the defendant. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).

When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). Evidence that favors the movant's position will not be considered unless it is uncontroverted. Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex. 1965). But we must consider whether reasonable and fair-minded jurors could differ in their conclusions in light of all of the evidence presented. See Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 568 (Tex. 2006); City of Keller v. Wilson, 168 S.W.3d 802, 822-24 (Tex. 2005). The summary judgment will be affirmed only if the record establishes that the movant has conclusively proved all essential elements of the movant's cause of action or defense as a matter of law. Clear Creek Basin Auth., 589 S.W.2d at 678.

IV. Workers' Compensation Exclusion

In his first issue, Robertson argues that the trial court erred by granting Home State's motion for summary judgment on the ground that coverage under the Policy for Robertson's claims against Redi-Mix is excluded under the workers' compensation exclusion. He contends that his negligence claim against Redi-Mix is not excluded under the Policy's workers' compensation exclusion because RediMix did not subscribe to workers' compensation benefits. He argues on rehearing that because Redi-Mix was a nonsubscriber, his negligence action against Redi-Mixsounded in common law and, consequently, is not an "obligation" under the Texas Workers' Compensation Act ("TWCA"). Thus, according to Robertson, the judgment he obtained against Redi-Mix did not implicate the Policy's exclusion of coverage for an "obligation for which the insured or the insured's insurer may be held liable under any workers compensation."

We clarify on rehearing that the specific issue before this court is not whether Robertson's negligence action arose under the TWCA. Indeed, there is no doubt that an employee's negligence action against his employer existed at common law before the enactment of the TWCA. See, e.g., Tex. Workers' Comp. Comm'n v. Garcia, 893 S.W.2d 504, 510 (Tex. 1995) (explaining that when Texas first enacted workers' compensation legislation in 1913, most injured workers were denied recovery "under the common law" because of the difficulty in proving negligence and the ability of the employer to invoke complete defenses); Tex. & N.O.R. Co. v. Bingle, 91 Tex. 287, 288, 42 S.W. 971, 971 (1897) (explaining that an employee may recover against employer for negligence); Nunez v. Wyatt Cafeterias, Inc., 771 F. Supp. 165, 167-68 (N.D. Tex. 1991) (reasoning that negligence action against nonsubscriber has its origins in common law principles dating back to the 1870s). Rather, the specific issue that we address here is determined and limited by the express language of the workers' compensation exclusion contained in Redi-Mix's Policy, specifically: whether the damages that Robertson recovered against RediMix for Redi-Mix's negligence constitute an "obligation" for which Redi-Mix is liable "under any" workers' compensation law.

Generally, courts construe insurance policies according to the same rules of construction that apply to contracts. Natl Union Fire Ins. Co. of Pittsburgh, Pa. v. Crocker, 246 S.W.3d 603, 606 (Tex. 2008). Enforcing the parties' expressed intent is our primary concern. Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133 (Tex. 1994). If terms in the contract can be given a definite or certain legal meaning, they are not ambiguous, and the court will construe the contract as a matter of law. Natl Union Fire Ins. Co. of Pittsburgh, Pa. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex. 1995). However, if a contract of insurance is susceptible to more than one reasonable interpretation and is, thus, ambiguous, we must resolve the uncertainty by adopting the construction that most favors the insured. Natl Union Fire Ins. Co. of Pittsburgh, Pa. v. Hudson Energy Co., Inc., 811 S.W.2d 552, 555 (Tex. 1991).

Within the context of his first issue, Robertson includes the following sentence regarding ambiguity: "The worker's compensation exclusion is at least ambiguous with regard to excluding a non-subscriber claim." Robertson included argument in his response to Home State's motions for summary judgment addressing the grounds (1) that coverage under the Policy for Robertson's claims against Redi-Mix is excluded under the employee exclusion and did not fall within the "domestic employee" exception and (2) that the truck assigned to Robertson when he sustained injuries is not a listed vehicle under the...