Court of Appeals of Texas, Dallas.

Jon B. WALKER, Appellant,

v.

Pat NEIL, Appellee.

No. 05-92-02950-CV.

|

August 20, 1993

Before THOMAS, CHAPMAN and ROSENBERG. JJ.

O P I N I O N

ROSENBERG, Justice.

*1 This is a personal injury case. Jon B. Walker appeals from a take nothing summary judgment. In two points of error, Walker claims that the trial court erred in failing to find (1) that his injuries resulted from an intentional tort, and (2) that his employer waived immunity under the Texas Workers’ Compensation Act (the “Act”). We overrule Walker’s points of error and affirm the trial court’s judgment.

On July 5, 1990, Walker was injured in the course and scope of his employment with Collectible Trains and Toys, Inc. (Trains and Toys). Walker’s injuries occurred when he was riding in the back of a truck driven by Pat Neil, owner of Trains and Toys. Walker filed a worker’s compensation claim and received benefits for injuries suffered. Walker and Trains and Toys’s insurer, First National Insurance Company, entered into a compromise and settlement agreement. Walker then filed this lawsuit against Neil seeking damages for the injuries he suffered on July 5, 1990. Neil filed a motion for summary judgment asserting the protection of the exclusive remedy provision of the Act. The trial court granted Neil’s motion for summary judgment.

Summary judgment is proper only if the record shows that there is no genuine issue of material fact and that the movant 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). The rule provides a method for summarily ending a case that involves only a question of law and no genuine material fact issue. See Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557, 563 (1962). In reviewing a summary judgment record, we apply the following standards: (1) the movant for summary judgment has the burden of showing there is no genuine issue of material fact and that it is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, we must take evidence favorable to the nonmovant as true; and (3) we indulge every reasonable inference in favor of the nonmovant and resolve any doubts in its favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985).

For a defendant, as movant, to prevail on a summary judgment, it must either disprove at least one element of the plaintiff’s theory of recovery or plead and conclusively establish each essential element of an affirmative defense, thereby rebutting the plaintiff’s cause of action. International Union UAW Local 119 v. Johnson Controls, Inc., 813 S.W.2d 558, 563 (Tex. App.-Dallas 1991, writ denied). A matter is conclusively established if ordinary minds cannot differ as to the conclusion to be drawn from the evidence. Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex. 1982). A summary judgment for the defendant disposing of the entire case is proper only if, as a matter of law, plaintiff could not succeed upon any theories pleaded. See Delgado v. Burns, 656 S.W.2d 428, 429 (Tex. 1983).

*2 In his first point of error, Walker contends that the trial court erred in granting Neil’s motion for summary judgment because a genuine issue of material fact exists about whether Neil drove the truck in such a manner as to constitute an intentional tort.

The exclusive remedy provision of the Act provides that the recovery of workers’ compensation benefits is the exclusive remedy an employee has against the employer for work-related injuries. TEX. REV. CIV. STAT. ANN. art. 8308-4.01 (Vernon Supp. 1993). An exception to the exclusive remedy provision exists, however, when an employee’s injuries are due to intentional torts. See Reed Tool Co. v. Copelin, 610 S.W.2d 736, 739 (Tex. 1980).

Walker contends that Neil drove the truck in such a manner as to violate article 6701d, section 51(a) of the Texas Revised Civil Statutes. Article 6701d states that a person is guilty of reckless driving if he “drives any vehicle in willful or wanton disregard for the safety of persons or property.” TEX. REV. CIV. STAT. ANN. art. 6701d, § 51(a) (Vernon 1977). Walker argues that by violating the statute, Neil’s actions rose to the level of an intentional tort. We disagree.

There is a notable difference between reckless behavior and intentional acts. Practice Commentary TEX. PENAL CODE ANN. § 6.03 (Vernon 1974); see White v. State, 647 S.W.2d 751, 753 (Tex. App.-Austin 1983, pet. ref’d). Willful and wanton disregard, as used in article 6701d, is defined as conscious indifference to the safety of others. White, 647 S.W.2d at 753. A person acts intentionally “when it is his conscious objective or desire to engage in the conduct or cause the result.” TEX. PENAL CODE ANN. § 6.03 (Vernon 1974). Therefore, even if Neil did drive the truck recklessly, Walker’s injuries were not the result of an intentional tort.

Moreover, the Texas Supreme Court has held that “[t]he collection of workers’ compensation benefits by an employee who subsequently alleges his injury was by an intentional tort constitutes an election of remedies and estops the employee from proceeding to recover damages outside the Act.” Massey v. Armco Steel Co., 652 S.W.2d 932, 933 (Tex. 1983). To sustain an independent action against an employer for an intentional tort, the intentional act must be separable from the compensation claim and must produce an independent injury. Id. Therefore, Walker waived any cause of action he may have had for an intentional tort against Neil when he sought workers’ compensation benefits under the Act. We overrule Walker’s first point of error.

In his second point of error, Walker claims Neil removed himself from the protection of the exclusive remedy provision of the Texas Workers’ Compensation Act when he elected not to cover his own work-related injuries under the workers’ compensation policy. Walker maintains that Neil, as the owner of Trains and Toys, is not a “real” employee of the business. And because Neil did not elect to be covered by the workers’ compensation policy, Walker argues that he is not a co-employee entitled to the protection of the Texas Workers’ Compensation Act’s exclusive remedy provision.

*3 We hold that it is immaterial whether Neil was covered under the worker’s compensation policy. The exclusive remedy provision protects both co-employees and employers. See TEX. REV. CIV. STAT. ANN. art. 8308-4.01 (Vernon Supp. 1993). Neil was Walker’s employer regardless of his status on the workers’ compensation policy. We overrule Walker’s second point of error.

We affirm the trial court’s judgment.