Smith v. Atlantic Richfield Co., 01-95-00849-CV

• Court: Court of Appeals of Texas
• Citation: 927 S.W.2d 85
• Docket Number: No. 01-95-00849-CV,01-95-00849-CV
• Parties: Gloria Lou SMITH, David Glynn Smith, and Paula Satrece Petters, Appellants, v. ATLANTIC RICHFIELD COMPANY and Lyondell Petrochemical Company, Appellees. (1st Dist.)
• Decision Date: 25 April 1996

Page 85

927 S.W.2d 85 Gloria Lou SMITH, David Glynn Smith, and Paula Satrece
Petters, Appellants,
v.
ATLANTIC RICHFIELD COMPANY and Lyondell Petrochemical
Company, Appellees. No. 01-95-00849-CV. Court of Appeals of Texas,
Houston (1st Dist.). April 25, 1996.
Rehearing Overruled Aug. 6, 1996.

Page 86

Brent M. Rosenthal, David Denny, Dallas, James I. Potts, Houston, for Appellants.

Richard O. Faulk, S. Shawn Stephens, Houston, for Appellees.

Before SCHNEIDER, C.J., and COHEN, HUTSON-DUNN, MIRABAL, O'CONNOR, WILSON, HEDGES, ANDELL, TAFT and PRICE ¹, JJ.

OPINION ON REHEARING

ANDELL, Justice.

Appellees' motions for rehearing and rehearing en banc have been considered by the Court and are overruled. We withdraw our opinion of March 14, 1996, and issue this one in its place. In this appeal, we are asked to decide if the appellants, Gloria Lou Smith, David Glynn Smith, and Paula Satrece Petters (the family), may recover exemplary damages from the defendants, Atlantic Richfield Company and Lyondell Petrochemical Company (the companies), for the death of an employee. The trial court rendered summary judgment for the companies. In two points of error, the family contends the trial court erred in rendering summary judgment because: (1) Texas law provides a cause of action for exemplary damages against an employer whose gross negligence results in an employee's death and (2) the motion for summary judgment did not address the cause of action for intentional tort. We reverse.

Background

Earl D. Smith worked for Atlantic Richfield Company and Lyondell Petrochemical Company, both of whom subscribed to the Workers' Compensation Act. In the course of his employment, Smith was exposed to various carcinogenic substances. He contracted

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cancer and died in 1992. The family sued to recover exemplary damages from the companies, alleging Smith died as a result of the companies' gross negligence. The companies moved for summary judgment on March 17, 1992. The family filed their second amended original petition on March 24, 1992, adding a second cause of action for intentional misconduct. The trial court rendered summary judgment for the companies and dismissed the family's claims on April 10, 1995. The family's motion for new trial was overruled by operation of law and this appeal ensued.

Death of an Employee

In point of error one, the family argues the trial court erred in ruling Texas law does not provide a cause of action for exemplary damages against employers whose gross negligence causes an employee's death.

1. Standard of Review

Rule 166a(c) entitles a movant to summary judgment if "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion or in an answer...." TEX.R.CIV.P. 166a(c). Ordinarily, a party appealing from the granting of summary judgment argues there is a genuine issue of material fact. See, e.g., Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985). However, the parties in this case do not argue the existence of a fact issue. The issue before us is whether the trial court properly determined as a matter of law the family's suit is barred.

2. The Statutory and Constitutional Principles

The heart of the companies' argument is that Smith could not have sued for his injuries had he survived, because his exclusive remedy was workers' compensation benefits; consequently, the surviving family also had no cause of action because of the limitations of the Wrongful Death Act. The Texas Wrongful Death Act provides, "This subchapter applies only if the individual injured would have been entitled to bring an action for the injury if he had lived." TEX.CIV.PRAC. & REM.CODE ANN. § 71.003(a) (Vernon 1986). The Texas Workers' Compensation Act of 1989 states:

Recovery of workers' compensation benefits is the exclusive remedy of an employee covered by workers' compensation insurance coverage or a legal beneficiary against the employer or an agent or employee of the employer for the...