WARNKE v. NABORS DRILLING USA.
| Decision Date | 07 April 2011 |
| Docket Number | NO. 01-09-00734-CV,01-09-00734-CV |
| Parties | ROBERT EARL WARNKE, Appellant V. NABORS DRILLING USA, L.P., NDUSA HOLDINGS CORP., AND BRUCE WILKINSON, Appellees |
| Court | Texas Court of Appeals |
OPINION TEXT STARTS HERE
Robert Earl Warlike filed negligence, fraud, and negligent misrepresentation claims against Nabors Drilling USA, L.P., NDUSA Holdings Corporation, and Bruce Wilkinson arising out of his workplace injury and his claim for workers' compensation.1 The trial court granted summary judgment against Warnke disposing of all claims and all parties. Warnke contends the trial court erred in granting summary judgment because (1) Nabors failed to establish that it provided him with pre-injury notice of coverage and such notice is required for it to claim subscriber status under the Texas Workers' Compensation Act (the "Act"); (2) a genuine issue of material fact existed whether Wilkinson was an independent contractor and therefore covered under the Act's exclusive remedy provision; and (3) his claims for fraud and negligent misrepresentation constituted separate injuries from his on-the-job injury and fell outside the protection of the Act's exclusive remedy provision.
We affirm in part, reverse in part, and remand for further proceedings.
Warnke suffered an on-the-job injury when a pipe connected by a co-worker, Bruce Wilkinson, came free and crushed his hand. In his affidavit, Warnke testified that his supervisor told him after his injury that he was not covered by workers' compensation insurance and that an employee in the human resources department, Brandon Cannady, denied the company's responsibility for Warnke's medical expenses. Warnke's wife testified by affidavit that Cannady told her that Warnke was not an employee of Nabors and the company did not provide workers' compensation coverage. Warnke also alleged that Nabors never provided him written notice of coverage under workers' compensation insurance before his injury. Eight months after the accident and about three months after filing suit, Warnke began receiving workers' compensation benefits.
Warnke filed suit against Nabors and Wilkinson, asserting claims of negligence, fraud, and negligent misrepresentation. In his original petition, Warnke claimed that he and Wilkinson were both employees of Nabors. He later amended his petition to plead in the alternative that Wilkinson was an independent contractor.
Nabors and Wilkinson filed a motion for summary judgment arguing that no genuine issue of material fact existed because the Act's exclusive remedy provision bars Warnke's recovery. Nabors and Wilkinson argued that subscriber status does not depend on providing the employee with pre-injury notice of coverage. They also asserted that the exclusive remedy provision excluded Warnke's fraud and negligent misrepresentation claims against all defendants. Warnke responded that (1) Nabors was not a subscriber because it failed to give Warnke notice of coverage and its insurance provider was not authorized to act in Texas; (2) a fact issue exists regarding whether Wilkinson was an independent contractor and therefore not covered by the exclusive remedy provision; and (3) his fraud and negligent misrepresentation claims arise from a separate injury from the on-the-job injury covered by the Act. The trial court granted summary judgment in favor of Nabors and Wilkinson on all claims.
We review a trial court's summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life Accid. Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). Under the traditional standard for summary-judgment motions, the movant has the burden to show that no genuine issue of material fact exists and the trial court should grant judgment as a matter of law. Tex. R. Civ. P. 166a(c); KPMG Peat Marwick v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). The motion must state the specific grounds relied upon for summary judgment. Tex. R. Civ. P. 166a(c). When reviewing a summary-judgment motion, we take as true all evidence favorable to the nonmovant, and indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Dorsett, 164 S.W.3d at 661; Knott, 128 S.W.3d at 215. A defendant moving for traditional summary judgment must conclusively negate at least one essential element of each of the plaintiff's causes of action or conclusively establish each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).
The Act is the exclusive remedy for non-intentional, "work-related injuries" of an employee, and exempts the employer, its agents, and its employees from common-law liability claims based on negligence or gross negligence. See Tex. Lab. Code Ann. § 408.001 (West 2006); Reed Tool Co. v. Copelin, 689 S.W.2d 404, 406 (Tex. 1985). The Act defines "injury" to mean, "damage or harm to the physical structure of the body and a disease or infection naturally resulting from the damage or harm." Tex. Lab. Code Ann. § 401.011(26) (West Supp. 2010). The exclusive remedy provision is an affirmative defense that the defendant must plead and prove. See Exxon Corp. v. Perez, 842 S.W.2d 629, 630-31 (Tex. 1992). The defendant must show that (1) the injured worker was acting as an employee at the time of the alleged tort, and (2) the defendant was a subscriber under the Act. See Martinez v. H.B. Zachry Co., 976 S.W.2d 746, 748 (Tex. App.—Houston [1st Dist.] 1998, pet. denied). Once this showing is made, the exclusive remedy is triggered and all employee claims of work-related negligence and gross negligence are barred. See Tex. Lab. Code Ann. § 408.001; see also Reed Tool, 689 S.W.2d at 406.
Warnke first contends that Nabors failed to give him pre-injury notice of workers' compensation insurance coverage, and thereby lost its subscriber status and the protection of the exclusive remedy provision. Therefore, the Act did not bar his negligence claim against Nabors as his employer. The Act requires employers to notify "each employee . . . whether or not the employer has workers' compensation insurance coverage." Tex. Lab. Code Ann. § 406.005 (West 2006). Failure to give notice constitutes an administrative violation punishable by a fine. See id. at § 406.005(e); Wesby v. Act Pipe & Supply, Inc., 199 S.W.3d 614, 618 (Tex. App.—Dallas 2006, no pet.).
Courts in this State, including this court, have held that the exclusivity bar does not hinge on whether notice has been provided to the employee. See, e.g., Wesby, 199 S.W.3d at 618; see also Blazik v. Foley's, Inc., No. 01-96-01140-CV, 1998 WL 788848, at *3 (Tex. App.—Houston [1st Dist.] Nov. 12, 1998, no pet.) (mem. op., not designated for publication). Although Nabors provided no evidence to show it gave pre-injury coverage notice to Warnke, these cases hold that the Act and the exclusivity provision apply even without such notice.2 Nabors presented sufficient evidence otherwise to demonstrate subscriber status under the Act. Neither party contests Warnke's status as an employee at the time of his injury. Further, Nabors attached an affidavit from its insurance carrier's managing director stating that his company provided workers' compensation insurance to Nabors at the time of the accident. Nabors also attached the Texas Department of Insurance's certification of the carrier's authority to provide insurance in Texas. Nabors therefore satisfied its burden to demonstrate subscriber status and triggered the exclusive remedy provision of the Act. Accordingly, we hold that the exclusive remedy provision bars Warnke's negligence claims against Nabors for the on-the-job injury of his hand.
We overrule Warnke's complaint as to pre-injury notice and Nabors's subscriber status.
Warnke next contends the Act's exclusive remedy provision does not apply to his negligence claim against Wilkinson because Wilkinson failed to prove conclusively that he was an employee of Nabors. See Tex. Lab. Code Ann. § 408.001(a); see Hughes Wood Prod. v. Wagner, 18 S.W.3d 202, 206 (Tex. 2000). While an employer's exclusive remedy generally covers the liability of its employees, the same protection does not apply to independent contractors without some showing that the employer exercised "employer-like" control over the contractor. See Garza v. Excel Logistics, Inc., 161 S.W.3d 473, 476-77 (Tex. 2005). Nabors and Wilkinson argue that Warnke made a judicial admission that Wilkinson was an employee. As evidence of Wilkinson's employment status as a "co-employee," Nabors and Wilkinson rely on Warnke's amended petition and their second amended answer.
"Assertions of fact, not plead in the alternative, in the live pleadings of a party are regarded as formal judicial admissions." Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 568 (Tex. 2001). An admission in a pleading must be deliberate, clear, and unequivocal to constitute a judicial admission. Bowen v. Robinson, 227 S.W.3d 86, 94 (Tex. App.—Houston [1st Dist.] 2006, pet. denied). Warnke's first amended petition labeled Wilkinson as a "co-employee" of Nabors, but it also asserted in the alternative that he was an independent contractor. Pleading in the alternative does not constitute a judicial admission. See id. at 95. Labeling Wilkinson as both a "co-employee" and an independent contractor constitutes some evidence of both propositions—that Wilkinson is either a co-employee or an independent contractor. The pleading is not so clear and unequivocal to prove his employment status conclusively.
Nabors and Wilkinson also attached their second amended answer, which named Wilkinson as a "co-employee." A movant's own...
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