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

Cindy BLAZIK, Appellant,

v.

FOLEY’S, INC., Appellee.

No. 01-96-01140-CV.

|

Nov. 12, 1998.

Panel consists of SCHNEIDER, ANDELL and TAFT, JJ.

OPINION ON MOTION FOR REHEARING

TAFT.

*1 The appellee, Foley’s, Inc., has filed a motion for rehearing in this cause. We grant rehearing, withdraw our opinion of August 27, 1998, and issue this opinion in its stead. Our judgment of August 27, 1998 remains unchanged.

This is a workers’ compensation case. Appellant, Cindy D. Blazik, sued Foley’s Inc., for injuries sustained while on the job. We consider (1) the summary judgment proof necessary to invoke the exclusive remedy provision of the Texas Workers’ Compensation Act; (2) whether Foley’s met its summary judgment burden in relation to Blazik’s intentional tort claim; (3) whether Blazik’s claims of fraud, breach of the duty of good faith and fair dealing, and civil conspiracy were barred by the exclusive remedy provisions of the Act; and (4) whether the trial court properly granted summary judgment on the Texas Insurance Code article 21.21 claim. We affirm in part, reverse in part, and remand for further proceedings.

Facts

Blazik was a Foley’s employee, working as a cosmetics representative. On October 17, 1993,¹ she was removing parts of a metal display case, which collapsed and fell, cutting her left foot. Blazik fainted, hitting her head on the floor when she fell. Blazik could not work for over a week. She received medical treatment for ongoing physical and emotional problems, including abnormal vision, headaches, and dizziness. After the accident, Blazik learned of other Foley employees who had been injured “in a similar fashion by the same hardware.” Blazik sued for negligence, gross negligence, intentional infliction of physical injuries, intentional infliction of mental anguish, failure to provide a safe work environment, breach of warranties and good faith and fair dealing as to her injuries, fraud and conspiracy in regard to workers’ compensation claims and benefits due to her, and violation of Article 21.21 of the Texas Insurance Code.

Foley’s moved for summary judgment arguing Blazik’s claims were barred by the exclusive remedy portion of the Texas Workers’ Compensation Act. See  Tex.Lab.Code Ann. § 408.001(Vernon 1996). Foley’s presented the affidavit of its director of risk and environmental management, Jim Giese. He attested that during the time Foley’s employed Blazik, Foley’s had workers’ compensation insurance and was a subscriber to the Texas Workers’ Compensation Act.

Blazik filed a response, stating in an affidavit that Foley’s did not provide her with a copy of a Texas Workers’ Compensation policy, and that she did not receive benefits under a workers’ compensation policy. She stated that any benefits she received due to her injuries were directly from Foley’s, and Foley’s did not represent them as workers’ compensation benefits. She stated she had never seen a Foley’s workers’ compensation insurance policy and did not know Foley’s had a workers’ compensation insurance policy at the time of her injuries. She stated Foley’s knew that others had been injured by the same display case, but did not warn her.

Granting of Summary Judgment

*2 In Blazik’s sole point of error, she contends the trial court erred in granting summary judgment regarding her various claims. We address each claim separately.

A. Standard of Review

The standard for appellate review of a summary judgment for a defendant is whether the summary judgment proof establishes, as a matter of law, that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff’s cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970). A summary judgment for a defendant that disposes of the entire case is proper only if, as a matter of law, the plaintiff could not succeed upon any of the theories in its petition. Bhalli v. Methodist Hosp., 896 S.W.2d 207, 209 (Tex.App.-Houston [1st Dist.] 1995, writ denied). In an appeal from a summary judgment, the standard of review and presumptions favor reversal of the judgment. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985).

If a defendant moves for summary judgment based on an affirmative defense, the defendant’s burden is to prove conclusively all the elements of the affirmative defense as a matter of law. Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984). Unless the movant conclusively establishes the affirmative defense, the non-movant plaintiff has no burden in response to a motion for a summary judgment filed on the basis of an affirmative defense. Torres v. Western Cas. & Sur. Co., 457 S.W.2d 50, 52 (Tex.1970).

B. Negligence/Gross Negligence Claims

The Workers’ Compensation Act is the exclusive remedy for non-intentional, work-related injuries of an employee, and exempts the employer from common-law liability claims based on negligence or gross negligence. Reed Tool Co. v. Copelin, 689 S.W.2d 404, 406 (Tex.1985); Tex Lab.Code Ann. § 408.001 (Vernon 1996). An employer may obtain workers’ compensation coverage through a licensed insurance company or through self-insurance as provided by the Act. See Tex Lab.Code Ann. § 406.003 (Vernon 1996). Blazik would require Foley’s to prove, not only that it subscribed to the Act when the accident occurred, but also that she had (1) filed a workers’ compensation claim, and (2) received workers’ compensation benefits. In addition, Blazik argues that Giese’s affidavit alone is insufficient to prove the existence of a workers’ compensation insurance policy.

An employer may prove the existence of an insurance policy by affidavit. Harris v. Varo, 814 S.W.2d 520, 523 (Tex.App.-Dallas 1991, no writ). Once this showing is made, the exclusive remedy provision of the Act is triggered, and all employee claims of work-related negligence and gross negligence are barred. See Tex.Lab.Code Ann. § 408.001 (Vernon 1996); Reed Tool, 689 S.W.2d at 406. Giese’s affidavit stated that Foley’s employed Blazik from August 5, 1993, to March 28, 1994. It further stated that Foley’s was a subscriber to the Act during the period of Blazik’s employment.² We hold that Giese’s affidavit was sufficient to carry Foley’s burden to establish it was a subscriber. Therefore, Blazik’s claims of negligence and gross negligence were barred by the exclusive remedy provision of the Act and summary judgment proper as to those claims.

*3 In a supplemental brief filed after oral arguments before this Court, Blazik alleges Foley’s cannot claim subscriber status, and thus invoke the exclusive remedy provision of the Act, because it failed to provide competent summary judgment evidence that the notice provisions of the Act were met. The Act, according to Blazik, requires Foley’s to provide notice of its workers’ compensation coverage to (1) its employees and (2) the Workers’ Compensation Commission.

In her response to Foley’s motion for summary judgment, Blazik did not urge Foley’s failure to notify the Worker’s Compensation Commission as a basis to deny the motion, and, therefore, that issue may not be raised on appeal. Amoroso v. Aldine Indep. Sch. Dist., 808 S.W.2d 118, 121-22 (Tex.App.-Houston [1st Dist.] 1991, writ denied). We note the Act no longer requires an employer to notify the state when the employer obtains workers’ compensation coverage. See Tex.Lab.Code Ann. §§ 406.001-.012 (Vernon 1996) (requiring, inter alia, an insurance carrier to notify the Workers’ Compensation Commission upon issuing a policy). Blazik does allege in her summary judgment affidavit that she had not seen a workers’ compensation policy and did not know Foley’s had a workers’ compensation policy. However, the exclusivity provision of the Act does not hinge on whether notice has been provided to the employee. See Esquivel v. Mapelli Meat Packing Co., 932 S.W.2d 612, 616 (Tex.App.-San Antonio 1996, writ denied). Failure of an employer to notify an employee of coverage constitutes an administrative violation punishable only by fine. Id.; Tex.Lab.Code Ann. §§ 406.005(c), 415.002 (Vernon 1996). Therefore, Foley’s proof was sufficient to support summary judgment on Blazik’s negligence and gross negligence claims.

C. Intentional Tort Claims

Blazik claims that Foley’s did not prove, as a matter of law, that it was entitled to summary judgment on her intentional tort claims. In her petition, Blazik alleged the infliction of physical and mental injuries flowing from Foley’s failure to furnish a safe working environment.

The Workers’ Compensation Act does not apply to or affect an employee’s common law claim for intentional tort against his employer. Medina v. Herra, 927 S.W.2d 597, 600 (Tex.1996). This exception to the exclusive remedy provision of the Act is a narrow one, and requires specific intent to inflict injury, such as a direct assault on an employee by an employer. Reed Tool, 689 S.W.2d at 406.

In Reed Tool, the supreme court held that the intentional failure to provide a safe workplace does not rise to the level of intentional injury except when the employer believes his conduct is substantially certain to cause the injury. Id. at 407 (emphasis added). As the movant for summary judgment, it was Foley’s burden to establish that it lacked the requisite intent and was, therefore, entitled to judgment as a matter of law. Rodriguez v. Naylor Indus., Inc., 763 S.W.2d 411, 413 (Tex.1989) (holding that employer’s summary judgment proof was insufficient to establish non-existence of intent as a matter of law). As previously stated, Foley’s only summary judgment evidence was Giese’s affidavit stating Foley’s was a subscriber during the period of Blazik’s employment. Because Foley’s did not present any summary judgment evidence to establish that it lacked the requisite intent to injure Blazik, Foley’s did not meet its initial summary judgment burden, and, therefore, the trial court erred in granting summary judgment on Blazik’s intentional tort claim. See id.

D. Fraud/Duty of Good Faith and Fair Dealing/Civil Conspiracy

*4 Blazik alleged in her original petition that (1) Foley’s did not file a workers’ compensation claim, (2) she did not receive any workers’ compensation benefits, and (3) Foley’s engaged in a civil conspiracy to defraud her of her claims and benefits. The workers’ compensation statute does not bar an employee from bringing a separate claim against an employer for fraudulent misrepresentations concerning its insurance coverage. Harris, 814 S.W.2d at 526. Moreover, a defendant’s motion for summary judgment must identify and address each of the plaintiff’s causes of action to dispose of the entire case. Black v. Victoria Lloyd’s Ins. Co., 797 S.W.2d 20, 27 (Tex.1990). Foley’s did not address Blazik’s causes of action for civil conspiracy, fraud, and breach of duty of good faith and fair dealing in its motion for summary judgment or in its reply to Blazik’s response for summary judgment. Therefore, the trial court erred in granting summary judgment on those claims.

E. Insurance Code Article 21.21

In her original petition, Blazik requested damages for a “breach of Texas Insurance Code, Art. 21.21,” but provided no facts, legal argument, or authority to support her allegation. However, Foley’s did not file any special exceptions to clarify Blazik’s claim, nor did it address the point in its motion for summary judgment, reply to Blazik’s response to motion for summary judgment, or in its brief on appeal. A trial court may not grant judgment as a matter of law on a cause of action not addressed in a summary judgment proceeding. Klein v. Reynolds, Cunningham, Peterson & Cordell, 923 S.W.2d 45, 48 (Tex.App.-Houston [1st Dist.] 1995, no writ). The motion for summary judgment and supporting evidence must be analyzed in light of the pleadings to ensure that the motion effectively defeats every cause of action raised in the petition. Id. at 48-49. Therefore, the trial court erred by granting summary judgment on the article 21.21 claim.

Conclusion

We reverse that portion of the trial court’s judgment concerning Blazik’s intentional tort, civil conspiracy, fraud, breach of duty of good faith and fair dealing, and Insurance Code article 21.21 claims, and remand for further proceedings. We affirm the trial court’s judgment as to Blazik’s claims of negligence and gross negligence.

	Footnotes
1		The provisions of the Texas Workers’ Compensation Act at the time of the accident determine the rights and duties of the parties. See Harris v. Varo, 814 S.W.2d 520, 523 (Tex.App.-Dallas 1991, no writ).
2		Although the term “subscriber” was deleted from the Workers’ Compensation Act by Act of Nov. 29, 1989, 71st Leg., 2d C.S., ch. 1, 1989 Tex.Gen.Laws 1, this Court has previously noted that “the deletion of the term ‘subscriber’ from the Act was a distinction without a difference. The same substantive requirement is incorporated in the newer version’s definition of employer.” Rodriguez v. Martin Landscaping, 882 S.W.2d 602, at 605 (Tex.App.-Houston [1st Dist.] 1994, no writ).