Court of Appeals of Texas, Houston (1st Dist.).

Faride A. EL-AHMAD, Appellant,

v.

GENERAL MILLS, INC., Appellee.

No. 01-91-00281-CV.

|

Nov. 27, 1991.

Before SAM BASS, DUNN and HUGHES, JJ.

OPINION

SAM BASS, Justice.

*1 Appellant, Faride A. El-Ahmad, sued appellee, General Mills, for personal injuries sustained when she slipped and fell at her workplace, a Red Lobster restaurant owned by appellee. The trial court granted summary judgment in favor of appellee.

We affirm in part and reverse and remand in part.

On October 18, 1988, while punching out at the end of the work day, appellant slipped in some water that had pooled near the time clock. She alleged in her petition, filed October 15, 1990, that she had warned the management that water was standing on the floor and had asked them to correct the situation. The management did not take any action, however. Appellant received workers’ compensation benefits for the injuries she sustained in the fall, but she also sued General Mills on a gross negligence theory.

Appellee filed a general denial on November 19, 1990. Additionally, on December 10, 1990, appellee filed a motion for summary judgment. Appellee contended in this motion that the exclusive remedies doctrine found in the Texas workers’ compensation statute was an absolute bar to appellant’s suit. A hearing on the motion was set for February 4, 1991.

On January 25, 1991, appellant amended her petition to include an intentional tort claim. Specifically, she asserted that appellee intentionally failed to furnish a safe workplace and intentionally inflicted emotional distress. Appellee did not respond to appellant’s amendments. On February 4, 1991, the trial judge granted the motion for summary judgment.

In appellant’s first point of error, she asserts that the trial court should not have granted the final summary judgment. She claims that appellee failed to establish that no genuine issue of fact existed regarding appellant’s cause of action for intentional tort.

The party moving for summary judgment has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex. 1985); TEX. R. CIV. P. 166a(c). The issue on appeal in a summary judgment case is whether the movant met this burden. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979).

An employee who receives workers’ compensation benefits may not bring suit for injuries caused by the employer’s negligence or gross negligence, but only for the employer’s intentional torts. Rodriguez v. Naylor Indus., Inc., 763 S.W.2d 411, 412 (Tex. 1989); TEX. REV. CIV. STAT. ANN. art. 8306 Sec.3(a) (Vernon 1964). A movant for summary judgment who asserts the exclusive remedies doctrine must show: (1) that plaintiff was an employee of the employer within the meaning of the workers’ compensation statute; (2) that employer had workers’ compensation insurance in effect at the time of the accident; and (3) that the employee was a beneficiary of such insurance. Sanchez v. Leggett, 463 S.W.2d 517, 522 (Tex. Civ. App.– Corpus Christi 1971, writ ref’d n.r.e.).

*2 Appellee supported its motion for summary judgment with the affidavit of the workers’ compensation unit manager of General Mills’ workers’ compensation insurance carrier. This affidavit set forth that appellee had a workers’ compensation policy in effect on the date of appellant’s injury. It further indicated that appellant had not elected to forego coverage under the policy, and that she had been paid medical benefits and compensation. Thus, appellee met its burden of proof with respect to the gross negligence claims raised by appellant; and the summary judgment regarding these claims was proper.

However, a trial court may not grant judgment as a matter of law on a cause of action not addressed in a summary judgment proceeding. Chessher v. Southwestern Bell Tel. Co., 658 S.W.2d 563, 564 (Tex. 1983). The movant must establish that he is entitled to a summary judgment on the issues expressly presented to the trial court by conclusively proving all essential elements of his defense as a matter of law. Clear Creek Basin Auth., 589 S.W.2d at 678. A summary judgment is presumed to dispose of only those issues expressly presented, not all issues in the case. City of Beaumont v. Guillory, 751 S.W.2d 491, 492 (Tex. 1988).

Appellee filed its amended petition, which raised an intentional tort claim, prior to the hearing on appellee’s motion for summary judgment. Therefore, at the time the trial court rendered the summary judgment, it had the intentional tort cause of action before it. Acevedo v. Droemer, 791 S.W.2d 668, 670 (Tex. App.–San Antonio 1990, no writ). Appellee’s motion for summary judgment addressed only the negligence claim, asserting that the exclusive remedies provision of the workers’ compensation statute bars such claims where the employee has received workers’ compensation benefits. Since an intentional tort claim was not alleged until after the motion for summary judgment was filed, and appellee failed to amend his motion for summary judgment to include this cause, the appellee did not specifically address or dispose expressly of the intentional tort cause of action. Id. at 671. Thus, appellee did not sustain its burden with respect to the intentional tort claim, and final summary judgment was improper.

Appellant’s first point of error is sustained.

Appellant, in her second point of error asserts that the exclusive remedies doctrine of the Texas workers’ compensation statute is unconstitutional. In her third point of error, appellant asserts that she never knowingly relinquished her common-law right to sue appellee for gross negligence. Having sustained appellant’s first point of error, it is unnecessary to discuss points of error two and three.

The summary judgment on the negligence cause of action is affirmed. The summary judgment on the intentional tort cause of action is reversed and remanded.

*3 Do not publish. TEX. R. APP. P. 90.