Court of Appeals of Texas, San Antonio.

John LOVINGS and Shirley Lovings, Appellants,

v.

AMOCO OIL COMPANY, Amoco Corporation, and Everett McCann, Appellees.

Appeal No. 04-95-00125-CV.

|

Aug. 14, 1996.

Before RICKHOFF, HARDBERGER, JJ., and DIAL, Jr., J.¹

Opinion

*1 This is an appeal from a summary judgment that the plaintiffs John and Shirley Lovings take nothing on their claims against the defendants.

John Lovings was severely burned (78% of his body) by hot oil and steam in a job-related accident on September 9, 1991.² His employer, Amoco Oil Company, was a workers’ compensation subscriber. Lovings began receiving workers’ compensation benefits September 20, 1991. He has received weekly compensation benefits for over 147 weeks and $565,861.75 in medical benefits. He filed his claim under the Texas Workers’ Compensation Act on April 30, 1992, some seven months after the accident.

John Lovings and his wife, Shirley, filed suit April 23, 1993 against Amoco Oil Company, Amoco Corporation, and Everett McCann. They allege that John’s employer and his supervisor, McCann, knew that the job they were requiring him to perform was substantially certain to cause him injury. Shirley Lovings alleged that the defendants intentionally injured her husband and caused her loss of consortium.

All three defendants moved for summary judgment. Summary judgment was granted each defendant by the trial court without specifying the ground relied upon.

CLAIMS AGAINST AMOCO CORPORATION

Amoco Corporation offered summary judgment evidence that it did not employ John Lovings and did not own, operate, or control the premises where the accident occurred. The Lovings’ did not dispute these contentions in their response to the motion for summary judgment or offer reasons why Amoco Corporation should not be granted summary judgment. The summary judgment in favor of Amoco Corporation should be affirmed. Tex.R. Civ. P. 166a(c).

INTENTIONAL INJURY

Since Amoco Oil was a worker’s compensation subscriber, the Texas Workers’ Compensation Act is Lovings’ exclusive remedy except for intentional injury. Tex. Lab.Code Ann. § 408.001(a) (Vernon 1996). The Texas Supreme Court has held that the intentional failure to furnish a safe place to work does not rise to the level of intentional injury except when the employer believes his conduct is substantially certain to cause the injury. Reed Tool Co. v. Copelin, 689 S.W.2d 404, 407 (Tex.1985).

The Lovings’ offered summary judgment evidence, through the affidavit of an expert witness, that the conduct of Amoco Oil Company and Everett McCann was substantially certain to cause Mr. Lovings’ injuries. It was the expert’s opinion that the defendants were on notice of this substantial certainty by failing to comply with their own safety procedures. This is not a question of credibility. In deciding whether there is a disputed material fact issue precluding summary judgment, all evidence favorable to the non-movant must be taken as true. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-549 (Tex.1985). For purposes of this appeal from summary judgement, we will therefore assume that Mr. Lovings suffered intentional injuries.

WIFE’S CLAIM

If a wife can establish that she has lost consortium because of intentional injuries to her husband, her claim is her separate property. Her claim is not barred by the Workers’ Compensation Act or by her husband’s acceptance of workers’ compensation benefits. Reed Tool Co. v. Copelin, 610 S.W.2d 736, 740 (Tex.1980). There was summary judgment evidence that John Lovings was severely burned because of conduct amounting to intentional injury. The summary judgment that Shirley Lovings take nothing against defendants Amoco Oil Company and Everett McCann should therefore be reversed, and her cause of action should be remanded for trial.

JOHN LOVINGS’ CLAIM

*2 In their motion for summary judgment Amoco Oil and McCann contended that any intentional tort claim against an employer and a fellow employee is barred because Lovings accepted Workers’ Compensation benefits. They cite Massey v. Armco Steel Co., 652 S.W.2d 932, 933 (Tex.1983):

An employee … may waive his cause of action for intentional tort if he seeks benefits under the act … The collection of Workers’ Compensation benefits by an employee who subsequently alleges his injury was by intentional tort constitutes an election of remedies and estops the employee from proceedings to recover damages outside the act.

Lovings responded that there was not an informed election of remedies under these circumstances until acceptance of a final award, which he has not done, citing Ramirez v. Pecan Deluxe Candy Co., 839 S.W.2d 101 (Tex.App.-Dallas 1992, writ denied).

The Supreme Court recently addressed the “election of remedies” affirmative defense where an employee was pursuing intentional tort claims after he had applied for and received workers’ compensation benefits. Medina v. Herrera, 39 Tex. Sup.Ct. J. 627 (May 10, 1996) involved an assault on the plaintiff Medina by his supervisor. Medina hired an attorney who prepared and filed his formal claim for compensation. The case is in all other material respects indistinguishable from our present one.

The court repeated the test that the election of remedies doctrine may constitute a bar to relief when (1) one exercises an informed choice (2) between two or more remedies (3) which are so inconsistent as to (4) constitute manifest injustice. The Supreme Court stated that the mere receipt of compensation benefits did not automatically satisfy the informed choice element. Additional circumstances did establish that Medina made an informed election. The fact that Medina had been represented by an attorney when he filed his formal claim for compensation was held as a matter of law to charge him with knowledge of his remedies.

Had John Lovings been represented by an attorney at the time he filed his claim for compensation, that fact could be dispositive of the issue. We are directed to no place in the record that shows when he employed an attorney. Since this is a summary judgment review, every reasonable inference must be indulged in favor of the non-movant, and any doubts resolved in his favor. Nixon v. Mr. Property Management Co., 690 S.W.2d at 549. We must therefore conclude that the defendants failed to establish as a matter of law that Lovings made an informed choice between his two remedies. The summary judgment that John Lovings take nothing as to Amoco Oil Company and Everett McCann should be reversed.

That portion of the judgment that John and Shirley Lovings take nothing as to Amoco Corporation is affirmed. The judgment is in all other respects reversed and remanded to the trial court.

	Footnotes
1		Assigned to this case by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov’t Code Ann. § 74.003(b) (Vernon 1988).
2		Lovings’s injury is governed by Texas Lab.Code Ann. §§ 401.001–418.002 (Vernon 1996) which applies to injuries occurring on or after January 31, 1991.