Randall O. Sorrels, Jason B. Ostrom
In 1913, the Texas Legislature passed the Texas Workers’ Compensation Act (the “Act”). (1) For close to a century the Act has protected employees while performing their jobs (2) and has provided employers a more predictable, no fault compensation system. (3) The Act automatically entitles an employee to compensation benefits when the employee is injured in the course and scope of his employment. (4) In general, compensation benefits are limited to payment of medical bills, (5) a payment based on a physical impairment rating, (6) and a percentage of lost earnings. (7) The participating employer’s exposure to common law damages, on the other hand, is eliminated.
Participation in the Act is voluntary on the part of the employer, but there are consequences when an employer chooses not to participate in the worker’s compensation system. (8) When the employer is not a subscriber to the Act (“non-subscriber”), the employee is statutorily empowered to sue the employer for injuries sustained in the course and scope of his or her employment. (9) If the employee proves the negligence of the employer proximately caused his or her injuries, the employee’s remedies include all damages recoverable under both common and statutory law. Importantly, the Act prohibits the non-subscribing employer from asserting the common law defenses of contributory negligence, assumption of the risk and fellow-servant doctrine in defending suits brought by employees. (10) The risk of unlimited damages and the elimination of common law defenses often provides adequate encouragement for employers to subscribe to the Act, while punishing those who do not. (11)
When suits are brought against non-subscribers, courts have historically submitted a negligence issue against the employer, as well as any additional instructions to assist the jury in determining the employer’s negligence. The most common defendant’s submission has been the “sole cause” instruction, employers rely on to argue that the employee’s sole negligence, or the sole negligence of a third-party, is the only reason for the accident or occurrence in question. However, the issue of the employee’s negligence, historically, has not been submitted to the jury.
In Byrd v. Central Freight Lines, Inc., (12) the Amarillo Court of Appeals held in cases involving non-subscribing employers, an employee’s negligence and the parties’ comparative negligence could be submitted to the jury. (13) Relying on a proposition set forth by the Texas Supreme Court in Texas Workers’ Compensation Com’n v. Garcia, (14) the Byrd court held that the trial court did not err in submitting questions of the employee’s negligence and the parties’ comparative responsibility. (15) The Texas Supreme Court denied the petition for review, but in a Per Curiam opinion, the Court expressly stated it neither approved nor disapproved of “the lower court’s dictum that ‘comparative negligence is an element of a worker’s non-subscriber action against the employer outside the [Texas Workers’ Compensation] Act.'” (16) The Texas Supreme Court has granted a petition for review on this issue in another case, however, and Texans should receive some direction over the submission of an employee’s negligence in 2000. (17)
HISTORICAL AND LEGISLATIVE BACKGROUND
A. . COMPARATIVE RESPONSIBILITY/PROPORTIONATE RESPONSIBILITY
Until 1973, contributory negligence served as a complete defense and absolute bar to the plaintiff’s recovery. (18) Thus, a defendant could be found 99% negligent, and a plaintiff 1% negligent, and the plaintiff would receive nothing. (19) The Comparative Negligence Statute was passed in 1973 to alleviate this harsh result. Since then, the comparative negligence scheme has undergone a number of changes, and is now commonly referred to as the Proportionate Responsibility Statute, (20) which apportions the submitted parties’ responsibility for the recovery of damages in certain civil actions. (21) Significantly, the Proportionate Responsibility Statute expressly states it does not apply to an action to collect workers’ compensation benefits. (22) This statute is the genesis of the debate over the submission of an employees’ negligence in a non-subscriber case.
Non-subscribing employers argue that, while the Act excludes the common law defense of contributory negligence, it does not specifically exclude the statutory comparative negligence/proportionate responsibility defenses, and thus the employee’s negligence should be submitted to the jury. On the other hand, employees argue that a claim by the employee against a non-subscribing employer is not a typical personal injury suit, but rather it is a statutory claim brought under the guidance and direction of the Texas Workers’ Compensation Act. Hence, the claim by an employee against a non-subscribing employer is an action to collect benefits under the Workers’ Compensation Act and the comparative negligence/proportionate responsibility statute does not apply. (23)
B. INTENT AND PURPOSE OF THE ACT
To assess the merits of the arguments, one must understand the background of the Act. The Texas Workmen’s Compensation Act was enacted shortly after the turn of the century — primarily for the benefit and protection of the employee. (24) The object of the statute was to do away with employer’s common law defenses and fix the amount recoverable by an employee, free of any uncertainty. (25) Additionally, the Act sought to provide speedy and equitable relief to an employee injured in the course of his employment, (26) to avoid uncertainty in litigation, (27) and to transfer from the worker to the industry a greater portion of economic loss due to industrial accidents. (28)
To ensure that these purposes were realized, the legislature needed to develop a mechanism to encourage employers to subscribe to the Act. One such mechanism was to eliminate the common law defenses of contributory negligence, assumption of the risk, and the fellow-servant doctrine for non-subscribing employers. (29) By eliminating these defenses and by eliminating the ceiling on damages that an injured employee recovered, the legislature provided an incentive for employers to participate in the Act, and a potential penalty for those who did not.
But the Act was not always as it is today. Originally, when contributory negligence acted as a complete bar, the legislature eliminated the defense of contributory negligence in a non-subscribing employeremployee setting, however, they did allow an offset of damages according to the employee’s negligence: (30)
Section 1. In an action to recover damages for personal injuries sustained by an employee in the course of his employment, or for the death resulting from personal injury so sustained, it shall not be a defense:
1. That the employee was guilty of contributory negligence; but in such event the damages shall be diminished in the proportion to the amount of negligence attributable to such employee. . . . (31)
In Memphis Cotton Oil Co. v. Tolbert, (32) Plaintiff, A.T. Tolbert , sued Memphis Cotton Oil Co. for injuries that he sustained while working for Memphis Cotton Oil Co. (33) Memphis Cotton Oil Co. appealed the judgment entered in favor of Tolbert. (34) Two of the issues raised in Memphis Cotton Oil concerned the damage determination by the jury. (35) The court in Memphis Cotton Oil held that the answer of the jury to the issue regarding the negligence of plaintiff, which diminished plaintiff’s recovery by two-fifths based on the plaintiff’s negligence, legally provided a method of determining the amount of damages found by the jury. (36) The court went on to hold that according to the Act, the fact that plaintiff was guilty of contributory negligence did not bar his recovery, but would “decrease his damages in proportion to such contributory negligence.” (37) The application of this rule in 1914 is similar to today’s application of our Proportionate Responsibility Statute.
In 1917, the Texas Workers’ Compensation Act was modified, completely eliminating the offset of damages relating to the employee’s negligence, as well as the defense of contributory negligence. (38) The 1917 modification did not allow any consideration of an employee’s negligence in a suit against a non-subscribing employer to the Act.
Section 1. In an action to recover damages for personal injuries sustained by an employee in the course of his employment, or for the death resulting from personal injury so sustained, it shall not be a defense:
1. That the employer was guilty of contributory negligence.
2. That the injury was caused by the negligence of a fellow employee.
3. That the employee had assumed the risk of the injury incident to his employment; but such employer may defend in such action on the ground that the injury was caused by the willful intention of the employee to bring about the injury, or was so caused while the employee was in the state of intoxication.
4. In all such actions against an employer who is not an subscriber, as defined hereafter in this law, it shall be necessary to a recovery for the plaintiff to prove negligence of such employer or some agent or servant of such employer acting within the general scope of his employment. (39)
Following the 1917 modification of the Act, the section regarding defenses available to non-subscribing employers was modified again in 1989 and in 1993. (40) These modifications did not significantly change the meaning or intent of Article 8306 of the Act. The current version of the provision of the Act pertaining to defenses available to non-subscribing employers reads:
(a) In an action against an employer who does not have workers’ compensation insurance coverage to recover damages for personal injury… sustained by an employee in the course and scope of the employment, it is not a defense that:
(1) the employee was guilty of contributory negligence;
(2) the employee assumed the risk of injury or death; or
(3) the injury or death was caused by the negligence of a fellow employee. (41)
Significantly, the doctrine of “assumption of risk” was abandoned in 1975 by the Texas Supreme Court and “assumed risk” was absorbed by the law of comparative fault. (42)
PLAINTIFFS’ STATUTORY INTERPRETATION OF THE ACT
The injured worker argues the “plain language” of the Act prohibits the submission of the employee’s negligence. Rules of statutory construction mandate courts to use the ordinary meaning of terms unless the legislature has provided a definition. (43) In the history of the Act, courts have been required to interpret various meanings of the Act, and Texas courts have determined that the Act is to be construed liberally in favor of injured worker and to promote the interests of justice. (44)
Employees argue it is improper to restrict, by implication, an employee’s rights which are not found in the language of the Act. (45) Further, a strained or narrow construction of the Act, that denies the employee benefits, is improper. (46) Eighty one years ago, the Texas Legislature eliminated the defense of contributory negligence in a non-subscriber’s case and therefore eliminated consideration of the employee’s negligence. (47) Long before there existed in Texas a Comparative Negligence Statute, (48) the Texas Legislature determined that in a case against an employer who elected not to subscribe to the Texas Workers Compensation Act, the non-subscriber was prohibited from diminishing damages in proportion to the amount of negligence attributable to the employee. Accordingly, courts should avoid construing the Act, or any part thereof, in a manner which results in absurd consequences — that is the submission of an employee’s negligence. (49)
Employers who currently press for the submission of the employee’s negligence typically rely on the Byrd case. In November of 1992, Stephen Byrd, while in the course and scope of his employment, was struck by a forklift being operated by a fellow employee of Central Freight Lines, Inc. (50) Mr. Byrd was walking to his trailer when he was hit by the forklift on the back of his heel, twisting his leg and causing him to fall to the ground. Mr. Byrd testified he never saw Mr. Williams on the forklift prior to being hit. As a result of being struck by the forklift, Mr. Byrd never returned to work and filed suit against Central Freight Lines. At the time of the incident, Central Freight Lines was not a subscriber to workers’ compensation insurance. (51) The trial court included in its jury questions, over objection by the employee, questions inquiring as to the negligence of Mr. Byrd and the comparative negligence of the employer and Byrd. (52) The jury found both parties to be fifty percent negligent, and awarded damages. Upon entry of judgment, the trial court applied the comparative negligence statute and reduced the award by fifty percent. (53)
On appeal, Byrd argued the application of the comparative negligence concepts was barred by the Workers’ Compensation Act. (54) Mr. Byrd emphasized Holiday Hills Ret. & Nursing Center, Inc., v. Yeldell, (55) which held that comparative negligence is not applicable and should not be submitted to the jury in employees’ suits against employers who are non-subscribers to the Act. (56) The Court of Appeals for the Seventh District of Texas declined to follow Yeldell, instead relying on language found in the Texas Supreme Court decision in Texas Workers’ Compensation Com’n v. Garcia, which states:
Although the Legislature has softened the defense of contributory negligence by adopting comparative responsibility . . . and this Court has abolished the defense of assumption of risk . . . an injured employee pursuing the common law remedy must still prove that the employer was negligent and that [the employee] was not more than 50 percent negligent. (57)
But was Garcia a significantly different case with significantly different facts? In Garcia, Plaintiffs challenged the constitutionality of the 1989 Texas Workers’ Compensation Act. (58) The Supreme Court of Texas determined that the Act was constitutional, (59) but also addressed other issues that were not related to the constitutionality of the Act. Mr. Byrd argued the Garcia court’s statement concerning comparative responsibility was dicta and as such should not be considered as precedential authority. Dicta is defined as, “opinions of a judge which do not embody the resolution or determination of the specific case before the court.” (60) The question before the court in Garcia, was regarding the constitutionality of the Workers’ Compensation Act. There were no issues before the court regarding comparative responsibility. (61) It should be noted the Amarillo Court in Byrd recognized that this statement made by the Texas Supreme Court might be dicta, however, the court chose to cite it as precedential authority. The Texas Supreme Court declined to grant review of the Byrd decision, but expressly noted that the Byrd comment on the applicability of comparative responsibility was dicta and the Texas Supreme Court expressed no opinion on that issue. (62)
The proposition advanced in Garcia is not entirely lacking in support. The statement made by the court in Garcia has some striking similarity to a decision handed down by a United States District Court in the Western District of Texas. In Carlos v. White Consolidated Industries, Inc., (63) plaintiff, Mario Carlos, injured his back while working for the non-subscribing defendant. (64) In Carlos’ negligence claim, the U.S. District Court held, based on the concept of comparative negligence, the defendant was entitled to a take nothing judgment because of Carlos’ negligence. (65) The Carlos court justified the submission of the plaintiff’s negligence by applying the Comparative Responsibility Statute. (66) However, the Carlos court cited no authority, including Garcia, to support that submission. (67)
ADDITIONAL CASE LAW
Prior to Byrd, the non-subscriber negligence issue was addressed by the Fort Worth Court of Appeals in Holiday Hills Ret. & Nursing Center, Inc. v. Yeldell. (68) Bertha Yeldell brought suit against her non-subscribing employer, Holiday Hills Retirement and Nursing Center, Inc., for injuries she sustained during the course and scope of her employment. (69) The trial court declined to submit an issue of Yeldell’s negligence, and the jury returned a verdict in favor of Yeldell. (70)
Holiday Hills argued on appeal that the trial court erred in failing to submit the requested issue on comparative negligence. (71) The court held that based on the Act and an analysis of comparative negligence and defenses available to a non-subscriber, comparative negligence was not applicable and should not be submitted to the jury. (72) Interestingly, the Byrd court did not address the holding in Yeldell. (73)
Subsequent to the Byrd opinion, three intermediate appellate decisions held the employee’s negligence should not be submitted. First, in Brookshire Brothers, Inc. v. Wagnon, plaintiff Talbert Wagnon worked for Brookshire Brothers, a non-subscriber. (74) Wagnon, working alone, was injured while lifting a heavy box of meat and twisting his body to place the box on a cart. (75) Wagnon sued Brookshire Brothers for the injuries he sustained, and the jury found for Wagnon and awarded him $750,000.00 in damages. (76)
Brookshire Brothers appealed, asserting the trial court erred in denying an issue on comparative negligence. (77) Brookshire Brothers cited Texas Workers’ Compensation Comm’n v. Garcia for the proposition that an injured employee in a non-subscriber case must prove that he was not more than fifty percent negligent in causing the injury. (78) The Brookshire Brothers Court held that the proposition advanced by the Garcia Court was dicta and non-controlling. (79) The court in Brookshire Brothers stated, “we disagree that Garcia is determinative of this issue . . . because the dispute before the Supreme Court of Texas was the constitutionality of the Worker’s Compensation Act.” (80) The court went further, stating the Act clearly seeks to exclude from jury consideration any issues of an employee’s negligence, other than sole proximate cause. (81) The court held that in an employee’s suit against a non-subscribing employer, comparative negligence is not applicable and should not be submitted to the jury. (82) Less than a week later, the Tyler Court also decided Kroger Co. v. Keng.
The Texas Supreme Court has agreed to review this decision by the Tyler Court. In Kroger, plaintiff Sonja Keng was injured while working in the Kroger delicatessen in Houston. (83) At the time of Keng’s injuries, Kroger was a non-subscriber to the Act. (84) Keng brought suit against Kroger for the injuries that she sustained, and the jury found that Kroger was negligent. (85) Kroger appealed, and asserted that the trial court erred in failing to submit a jury question on comparative responsibility. (86) Kroger contended that because they were a non-subscriber, this case was not a workers’ compensation case and Kroger was entitled to benefit from the comparative negligence statute. (87) This argument, however, was not made in Byrd, Yeldell or Brookshire Brothers.
The court of appeals in Kroger concluded that when an employee files a suit against a non-subscribing employer, that suit is “an action to collect benefits [and damages] under the workers’ compensation laws of Texas.” (88) Therefore, that action is subject to the exemption language of Section 33.002(c)(1) of the Texas Civil Practice and Remedies Code, which reads “this chapter does not apply to: (1) an action to collect workers’ compensation benefits under the workers’ compensation laws of this state.” (89)
Second, the court in Kroger cited Torres v. Caterpillar, (90) for the inapplicability of the comparative responsibility statute to a non-subscriber case under the Workers’ Compensation Act. (91) The court in Torres noted, “since [the Defendant] was a non-subscribing employer, contributory negligence was not a defense, and therefore the trial court properly disregarded the percentage causation the jury attributed to [the employee’s] negligence in awarding damages [against the employer].” (92) Third, similar to Brookshire Brothers, Kroger held that the brief statement, that an employee cannot recover if he is more than fifty percent negligent, was dicta and non-controlling. (93) Thus, Kroger declined to follow Byrd, concluding that any attempt to apply the comparative negligence statute offends the prohibition of a contributory negligence defense in a statutory non-subscriber case. (94)
Even more recently, the Beaumont Court of Appeals was asked to consider whether the Texas’ Comparative Responsibility Statute applies to cases involving non-subscribers. (95) The court in Lewis, relying primarily on Kroger, Yeldell, and Brookshire, held “that in an employee’s suit against a nonsubscribing employer, comparative negligence is not applicable and should not be submitted to the jury.” (96)
It is anticipated that a needed decision will be forthcoming by the Texas Supreme Court this term — one which could redefine almost a century of case law. The outcome depends on the Texas Supreme Court choosing between two arguments. The injured workers will argue that the Texas Worker’s Compensation Act should be construed liberally in favor of the worker, as it has been for close to a century, and control over the Proportionate Responsibility Statute. Thus, employers who do not subscribe to the worker’s compensation system will face the injured employee with neither a cap on damages nor a negligence submission against the employee.
Non-subscribing employers, on the other hand, will argue that the Texas Worker’s Compensation Act addresses only common law defenses, and the Proportionate Responsibility Statute provides a statutory defense. Thus, the provisions which eliminate common law damages do not prohibit an employee’s comparative negligence submission, which, of course, will reduce or eliminate the employee’s damages based on his or her negligence. Until decided, both employers and employees, and those lawyers representing each, will eagerly await the Texas Supreme Court’s ruling.
2. See Texas Emp. Ins. Ass’n v. Grammar, 157 S.W.2d 701, 704 (Tex. Civ. App.–Dallas 1941, writ ref’d w.o.m.); see also Travelers Ins. Co. v. Forson, 268 S.W.2d 219, 221 (holding that the Act is intended to protect employees against risks and hazards taken or imposed on them in order to do their jobs).
10. See Tex. Lab. Code Ann. §406.033 (Vernon’s 1996); See also Farley v. M M Cattle Co., 529 S.W.2d 751, 758 (Tex. 1975), appeal after remand 549 S.W.2d 453 (1977)(abolishing the doctrine of assumption of the risk.); Harrison v. Harrison, 597 S.W.2d 477, 481 (Tex. Civ. App.–Tyler 1980, writ ref’d n.r.e.) (“As stated above, appellant although eligible was not a subscriber under the workman’s compensation laws of Texas. Under these circumstances in an employer-employee suit, the common law defenses of contributory negligence, assumption of risk and fellow servant negligence are not available to the employer”); Potter v. Garner, 407 S.W.2d 537, 538 (Tex. Civ. App.–Tyler 1966, writ ref’d n.r.e.);.
18. See Parrott v. Garcia, 436 S.W.2d 897, 901 (Tex. 1969) (“The present Court has inherited the well established common law principle that contributory negligence proximately causing injury is a bar to recovery against a negligent defendant.”).
20. The Comparative Negligence Act, Article 2212a, et seq., was passed in 1973. In 1985, the Comparative Negligence Act was revised and codified in Civil Practices & Remedies Code § 33.001, et seq. Civil Practices & Remedies Code § 33.001, et seq. was amended once in 1987 and again in 1995. The purpose of comparative negligence and/or proportionate responsibility was to counter the harsh effects of contributory negligence. See Farley v. M.M. Cattle Co., 529 S.W.2d 751, 758 (Tex. 1975). Comparative negligence works by reducing the amount of recovery available to the plaintiff by that amount of negligence attributed to the plaintiff. See Tex. Civ. Prac. & Rem. Code Ann. §33.012(a) (Vernon 1997). If the plaintiff is found to be greater than 50% negligent for causing the injury, than the plaintiff will not be permitted to recover any amounts. See Tex. Civ. Prac. & Rem. Code Ann. §33.001 (Vernon 1997).
22. See Civ. Prac. & Rem. Code Ann. § 33.002(c) (Vernon 1996) (“This chapter does not apply to: (1) an action to collect workers’ compensation benefits under the workers’ compensation laws of this state . . . .”).
24. See Hazelwood v. Mandrell Industries Co., Ltd., 596 S.W.2d 204, 206 (Tex. Civ. App.–Houston [1st Dist.] 1980, writ ref’d n.r.e.) (holding that if the employee’s benefits under the statute are substantially reduced, the intent of the legislature is thwarted).
35. See id. at 313 (“Assignment No. 2 is to the effect that the court erred in rendering judgment upon the motion of plaintiff for $7,200, because, under the findings by the jury, he was not entitled to a judgment in any sum. The third assignment is to the effect that the court erred in entering judgment upon the motion, because said findings were so conflicting that the plaintiff was not entitled to judgment thereon.”).
36. See id. at 314 (“The jury clearly found that the damages sustained by appellee should be diminished two-fifths, chargeable to appellee’s negligence, which would, under the law, diminish his recovery to the amount for which the judgment should be rendered.”).
44. See Miears v. Industrial Ace Bd., 232 S.W.2d 671, 675 (1950) (“It is settled law that the Workmen’s Compensation Act should be construed liberally in favor of the injured workman . . . and it would therefore not be proper to supply by implication a restriction on the employee’s rights which is not found in the language of the statute.”).
46. See Pacific Indemnity Co. v. Woodall, 253 S.W.2d 490, 492 (Tex. Civ. App.–Fort Worth 1952, writ ref’d) (“The courts have many times held that the Workmen’s Compensation Act . . . is to be construed liberally to the end that the benefits desired would be conferred upon the injured employee and that his rights would not be denied by any strained or narrowed construction of the provisions of the law.”).
47. See Act of March 28, 1917, 35 th Leg., R.S., ch. 103, 1917 Tex. Gen. Laws 269 (repealed 1989). This Act by the Texas Legislature removed the language allowing for a reduction of damages by the amount of an employee’s negligence.
48. See Abalos v. Oil Dev. Co. of Tex., 544 S.W.2d 627,632 (Tex. 1976) (“The Legislature of Texas has now abolished contributory negligence as an absolute bar and has substituted the doctrine of comparative negligence.”).
54. See id. at 259 n.1 (The incident forming the bases of this lawsuit, occurred on November 5, 1992, thus the applicable version of the Texas Workers’ Compensation Act was at Texas Revised Civil Statutes article 8308-3.03.).
56. See id. at 775. (“Under this statute, in so far as a non-subscriber is concerned, all the plaintiff has to do is show that some negligence of the employer caused his injury. It matters not if the plaintiff was negligent, or helped cause his injury . . . .”).
60. Black’s Law Dictionary 454 (6th ed. 1990); See also State ex. rel. Foster v. Naftelin, 246 Minn. 181, 208, 74 N.W.2d 249, 266 (Minn. 1956) (“Dicta . . . generally is considered to be expressions in a court’s opinion which go beyond the facts before the court and therefore are the individual views of the author of the opinion and not binding in subsequent cases.”).
68. See Yeldell, 686 S.W.2d 770. The court in Yeldell, like the court in Byrd, had to determine whether an issue of comparative negligence regarding an employee in a suit against a non-subscribing employer to the Texas Workers’ Compensation Act can be submitted to the jury.
73. See Byrd, 976 S.W.2d at 259-60 (“However, Yeldell has never been followed for the proposition advanced, and our research reveals no other intermediate Texas court cases which has decided the proposition advanced.”).
81. See id; see also Yeldell, 686 S.W.2d at 775 (“Under a plain reading of this statute, any negligence of the plaintiff which was not the sole proximate cause of his injury would avail the employer nothing.”).
82. See Brookshire Brothers, 979 S.W.2d at 347. This language is the exact language used by the court in Yeldell. Clearly, unlike the court in Byrd, the court in Brookshire Brothers, found that the proposition advanced by the court in Yeldell was worthy of consideration.
94. See id. at n.3 (“The Amarillo Court of Appeals has ‘followed’ Garcia’s holding that comparative responsibility is an available defense for defendants in a nonsubscriber case. We decline to do so . . . .”).