Court of Appeals of Texas, Dallas.

Howard SANDERS, Appellant,

v.

Lloyd GIPSON, Appellee.

No. 05-93-01609-CV.

|

July 21, 1994.

Before THOMAS, ROSENBERG and BARBER, JJ.

ROSENBERG, Justice.

O P I N I O N

*1 Howard Sanders appeals from a summary judgment entered in favor of Lloyd Gipson that denied him recovery for personal injuries he suffered as a result of an intentional tort committed by Gipson. In a single point of error, Sanders contends that the trial court erred in granting Gipson’s motion for summary judgment. We affirm the trial court’s judgment.

Sanders and Gipson were co-employees working for the Dallas Independent School District (DISD). Gipson allegedly assaulted Sanders while at work. Sanders filed a workers’ compensation claim with the DISD seeking benefits for injuries he suffered from the incident. Sanders received compensation benefits and eventually settled his claim with the DISD. He then brought suit against Gipson, individually, alleging that Gipson negligently and/or intentionally caused him bodily injury. Gipson filed a motion for summary judgment alleging that Sanders was barred from maintaining a cause of action against him because of his election to proceed under the Workers’ Compensation Act. The trial court granted Gipson’s motion for summary judgment.

Sanders contends that the trial court erred in concluding, as a matter of law, that his acceptance of workers’ compensation benefits estops him from bringing a cause of action against a fellow employee whose conduct gave rise to his injuries.

A trial court may render summary judgment only if the pleadings, depositions, admissions and affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Rodriguez v. Naylor Indus., Inc., 763 S.W.2d 411, 413 (Tex. 1989). A summary judgment seeks to eliminate patently unmeritorious claims and untenable defenses, not to deny a party its right to a full hearing on the merits of any real issue of fact. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 931 (1952). The summary judgment rule provides a method of summarily ending a case that involves only questions of law and no genuine fact issues. Spencer v. City of Dallas, 819 S.W.2d 612, 615 (Tex. App.-Dallas 1991, no writ). In determining whether there is a disputed material fact issue precluding summary judgment, we review the summary judgment evidence in the light most favorable to the nonmovant and resolve any doubts in the nonmovant’s favor. See Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548-49 (Tex. 1985).

In a summary judgment proceeding, the defendant, as movant, must either (1) disprove at least one element of each of the plaintiff’s theories of recovery, Anderson v. Snider, 808 S.W.2d 54 (Tex. 1991), or (2) plead and conclusively establish each essential element of an affirmative defense, thereby rebutting the plaintiff’s cause of action. Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972). A summary judgment for the defendant disposing of the entire case is proper only if, as a matter of law, the plaintiff could not succeed upon any theories pleaded. See Delgado v. Burns, 656 S.W.2d 428, 429 (Tex. 1983).

*2 Article 8306, section 3(a) of the Workers’ Compensation Act bars an employee’s common-law negligence action against his employer or against any agent, servant, or employee of his employer. See Act of May 17, 1983, 68th Leg., R.S., ch. 131, § 1, 1983 Tex. Gen. Laws 613, repealed by Act of Dec. 13, 1989, 71st Leg., 2nd C.S., ch. 1, § 16.01(7), 1989 Tex. Gen. Laws 114 (current version at Tex. Lab. Code Ann. § 408.001(a) (Vernon Pamph. 1994)); Massey v. Armco Steel Co., 652 S.W.2d 932, 933 (Tex. 1983). The Act does not exempt employers from common-law liability for intentional torts. Massey, 652 S.W.2d at 933. An employee may waive his cause of action for intentional tort, however, if he seeks workers’ compensation benefits. Id.

The Workers’ Compensation Act is designed to compensate employees for accidental injuries sustained in the course and scope of their employment and not intentionally inflicted injuries. See Middleton v. Texas Power & Light Co., 108 Tex. 96, 185 S.W. 556, 560 (1916). A claimant’s asserted claim for compensation for accidental injuries under the Workers’ Compensation Act and his acceptance of benefits under the Act are entirely inconsistent with a later claim for intentional injuries. Jones v. Jeffreys, 244 S.W.2d 924, 926 (Tex. Civ. App.-Dallas 1951, writ denied). The filing of a workers’ compensation claim and the acceptance of benefits bars and destroys, through an election of remedies, a claim for intentional injuries. Massey, 652 S.W.2d at 933; Jones, 244 S.W.2d at 926.

It is undisputed that Sanders sought workers’ compensation benefits and settled his compensation claim with the DISD. Sanders maintains, however, that he is not barred from bringing suit against Gipson for common-law damages unless Gipson was acting in the course and scope of his employment at the time he committed the assault. He argues that an employee who undertakes an intentional act goes outside the course and scope of his employment. Therefore, Sanders’s position is that Gipson was not acting within the course and scope of his employment when he committed the assault, or alternatively, that a fact question exists on the issue.

Sanders elected his remedy under the Workers’ Compensation Act and proceeded under the Act for an accidental injury. When he sought and accepted benefits, he necessarily took the position that the assault on him by fellow-employee Gipson occurred in the course and scope of employment and originated in the work of their employer. See Moore v. Means, 549 S.W.2d 417, 418-19 (Tex. Civ. App.-Beaumont 1977, writ ref’d n.r.e.). The position Sanders took required that Gibson acted in the scope of his employment also. See id. at 419. Sanders is barred from asserting an inconsistent position in this proceeding. We conclude that Sanders is estopped from alleging that he suffered an intentional injury and that Gipson was not acting in the course of his employment at the time of the assault. See id. at 418-19; Jones, 244 S.W.2d at 926.

*3 Sanders next argues that estoppel under the election-of-remedies doctrine is an affirmative defense and, therefore, Gipson had the burden to show that he exercised an informed choice between remedies. He maintains that Gipson failed to present any such evidence to the trial court.

The acceptance of a final settlement of a workers’ compensation claim creates a presumption that the claimant made an informed choice between available statutory and judicial remedies. Ramirez v. Pecan Deluxe Candy Co., 839 S.W.2d 101, 107 (Tex. App.-Dallas 1992, writ denied). The burden then shifts to the claimant to prove that he did not make an informed election. Id. Sanders had the burden of establishing that he did not make an informed election of remedies. He failed to meet this burden.

Sanders further argues that his cause of action for intentional injury is guaranteed to him by article 1, section 13 of the Texas Constitution. He argues that the waiver of his cause of action for an intentional injury under the Workers’ Compensation Act waives this constitutional right.

The Workers’ Compensation Act is not in conflict with article 1, section 13 of the constitution. Jones, 244 S.W.2d at 926. The Act gives Sanders an elective substitute right of action for, and in place of, his common-law action. Id. Sanders collected under the Act for an accidental injury. In so doing, he declared there was no intentional injury. He is now estopped from proceeding on another claim for the same injury on an inconsistent theory. Id. We overrule Sanders’s point of error.

We affirm the trial court’s judgment.