Welch v. State Dept. of Highways and Public Transp., 83-2253

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation739 F.2d 1034
Docket NumberNo. 83-2253,83-2253
PartiesJean E. WELCH, Plaintiff-Appellant, v. STATE DEPARTMENT OF HIGHWAYS AND PUBLIC TRANSPORTATION and The State of Texas, Defendants-Appellees, Drott Manufacturing Company and J.I. Case Co., Defendants.
Decision Date27 August 1984

Page 1034

739 F.2d 1034
Jean E. WELCH, Plaintiff-Appellant,
The State of Texas, Defendants-Appellees,
Drott Manufacturing Company and J.I. Case Co., Defendants.
No. 83-2253.
United States Court of Appeals,
Fifth Circuit.
Aug. 27, 1984.
Opinion on Rehearing Oct. 31, 1984.

Page 1035

Michael D. Cucullu, Houston, Tex., for plaintiff-appellant.

Joe Jarrard, Jr., Dudley Fowler, David Allan Smith, Richard D. Naylor, Asst. Attys. Gen., Austin, Tex., for State Dept. of Highways & State of Tex.

Appeal from the United States District Court for the Southern District of Texas.

Before BROWN, GEE and WILLIAMS, Circuit Judges.

GEE, Circuit Judge:

Plaintiff Jean Welch was injured in the course of her employment as a "seaman" (marine technician) while working on the ferry landing dock at Galveston, Texas. Ms. Welch sued her employer, the Texas Highway Department, and the State of Texas under the Jones Act and also sued the manufacturer of the mobile crane which she asserts contributed to her injury in a products liability suit. The district court, 533 F.Supp. 403, dismissed her Jones Act claim on the ground that the state defendants had not waived Eleventh Amendment immunity either expressly, by virtue of the state Tort Claims Act, or impliedly, under the Parden doctrine. 1 Ms. Welch appeals the dismissal of her Jones Act claims 2 and we reverse.

The Eleventh Amendment immunizes an unconsenting state from federal court suits brought by citizens of the United States. A state can consent to suit, however, either expressly--by enacting a statute--or impliedly, by entering into a federally regulated sphere of activity where a private cause of action is provided for the violation of the applicable federal regulatory statute and Congress has expressly provided for that remedy to apply to the states. Employees of the Department of Public Health and Welfare, State of Missouri v. Department of Public Health and Welfare, State of Missouri, 411 U.S. 279, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973). Since we conclude that there has been an express consent, we need not consider any question of an implied one.

The Texas Tort Claims Act waives immunity to suit against the State for personal injuries proximately caused by the negligence of any officer or employee acting within the scope of employment if the injury arose from "the operation or use of a motor driven vehicle and motor driven equipment." Tex.Rev.Civ.Stat.Ann. art. 6252-19 Sec. 3 (Vernon Supp.1980-81). Section 4 of the Torts Act specifically waives the State's immunity from suit to the extent of the "liability created by Section 3" and grants permission to all claimants to sue the State of Texas for "all claims arising" under the Act. Section 19 of the Act, however, limits this waiver of immunity by providing that a governmental unit carrying worker's compensation is entitled to the privileges and immunities granted by the Workers' Compensation Act. 3 These include immunity from suits for damages under most circumstances. Section 19 reads:

Any governmental unit carrying Workmen's Compensation Insurance or accepting the provisions of the Workmen's Compensation Act of the State of Texas

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shall be entitled to all of the privileges and immunities granted by the Workmen's Compensation Act of the State of Texas to private persons and corporations. (emphasis added).

As of 1969, however, when this statute was enacted, it had long been clear that the state could confer no immunity from federal maritime remedies on "private persons and corporations." E.g., Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143 (1953). No private shipping company, after Pope & Talbot at the latest, could have rationally concluded that by taking out a state workers' compensation policy on its seamen, it could deprive them of their Jones Act remedies on the ground that state law made the compensation remedy exclusive. That this was the case was presumedly known, therefore, to the Texas Legislature when it enacted Section 19; for it is a maxim of general application, recognized by Texas courts, that:

"All statutes are presumed to be enacted by the legislature with full knowledge of the existing condition of the law and with reference to it. They are therefore to be construed in connection and in harmony with the existing law, and as a part of a general and uniform system of jurisprudence, and their meaning and effect is to be determined in connection, not only with the common law and the constitution, but also with reference to other statutes and the decisions of the courts." McBride v. Clayton, 166 S.W.2d 125, 128 (Tex.Sup.1942).

Since this is so, we must presume that in consenting to suit against state departments carrying workers' compensation to the same extent as "private persons and corporations" carrying such coverage could be sued, the Legislature intended the departments to be subject to federal maritime remedies. 4


JOHN R. BROWN, Circuit Judge, concurring:

I concur in the result reached by Judge Gee, but I think it imperative that we reach that result by way of federal, rather than state, law. I respectfully disagree with the two views of Judge Williams that: (i) the state can impose on its waiver of immunity the unconstitutional mandatory application of the State Workers' Compensation Act; and (ii) Parden has lost its vitality. With this Court now speaking as a discordant trio and the outright conflict (in result and reasoning) with our former colleagues in the Eleventh Circuit, 1 this case calls for authoritative review by the Supreme Court, despite our reversal and remand for a trial.

Page 1037

Initially, it must be recognized that two issues are at stake in the immunity defense raised by Texas. The first question is substantive: Does the Jones Act reach state defendants who are employers of seamen? Or, do states enjoy a substantive immunity that would protect them from suit in either federal or state court? In other words, does the Jones Act apply to a person classified as a seaman in the employment of a state or state agency? The second question is jurisdictional in the Eleventh Amendment sense: Assuming there is a substantive cause of action against a state, does the Eleventh Amendment bar prosecution of the suit in federal court? Or, on the other hand, has Congress, pursuant to its enumerated constitutional powers, abrogated this jurisdictional immunity in this particular statutory cause of action? I believe that the Supreme Court has squarely answered the substantive question in Petty v. Tennessee-Missouri Bridge Commission, 359 U.S. 275, 79 S.Ct. 785, 3 L.Ed.2d 804 (1959). The jurisdictional Eleventh Amendment question is answered in Parden v. Terminal Ry. of Alabama State Docks Dept., 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964). The body of recent Supreme Court decisions does not overrule these clearly applicable precedents, either explicitly or implicitly.

The inability of this Court to decide either (or both) question compels review by an authoritative tribunal.


In enacting the Jones Act pursuant to both its admiralty-maritime power and its commerce power, Congress included within the class of Jones Act defendants those states who would employ seamen aboard vessels in navigable waters. In Petty, the Supreme Court held that the Jones Act applied to a claim of an employee in the category of a seaman who was injured in the operation of a ferry across the Mississippi River by a bistate agency. On the Eleventh Amendment jurisdictional issue, the Court relied in part on the language in the interstate compact between Tennessee and Missouri as evincing consent to suit in federal court. However, on the substantive question of the application of the Jones Act, the Petty court relied solely on the congressional language and intent in the Jones Act:

We can find no more reason for excepting state or bi-state corporations from "employer" as used in the Jones Act than we could for excepting them either from the Safety Appliance Act or Railway Labor Act ... "When Congress wished to exclude state employees, it expressly so provided." The Jones Act has no exceptions from the broad sweep of the words "Any seaman who shall suffer personal injury in the course of his employment may" etc.

359 U.S. at 282, 79 S.Ct. at 790 (citations omitted). The Petty dissenters believed that the claim was forbidden by the Eleventh Amendment, and expressly did not reach this substantive argument. Justice Frankfurter stated: "I assume the Court is referring solely to the substantive applicability of [the Jones] Act." 395 U.S. at 289, 79 S.Ct. at 794 (Frankfurter, J., dissenting).

Whether or not the Petty majority's quoted statement on the applicability of the Jones Act also included the jurisdictional question, it is clear that it settled at least the substantive question. 2 Like Petty, the

Page 1038

instant case involved the operation by a state of a ferry boat and a suit brought under the Jones Act. Thus, the Petty holding is directly applicable here as to the substantive liability of Texas. The only thing which could possibly shield it from effective liability in this suit is the Eleventh Amendment.

Texas is not aided by its own statutory provision providing that state workers' compensation is the exclusive remedy for employees of governmental units carrying workmen's compensation insurance. Congress, in its constitutional admiralty and maritime power, 3 can make nationally uniform maritime substantive law that is supreme with respect to conflicting state law. E.g., Pope & Talbot v. Hawn, 346 U.S. 406, 409-10, 74 S.Ct. 202, 204-05, 98 L.Ed. 143 (1953); Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 160, 40 S.Ct. 438, 440, 64 L.Ed. 834 (1920).

As an example of this federal supremacy and uniformity in the maritime area, as Judge Gee correctly observed, the Supreme Court...

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