Court of Appeals of Texas, Houston (14th Dist.).
IN RE EXXONMOBIL CORP., Relator
NO. 14-25-00446-CV
|
Opinion Issued December 18, 2025
ORIGINAL PROCEEDING WRIT OF MANDAMUS, 334th District Court, Harris County, Texas, Trial Court Cause No. 2022-13735
Attorneys & Firms
Joshua Smith, John S. Adcock, Anson Fung, Michael P. Cash, Wade Thomas Howard, Maryalyce W. Cox, Marilyn S. Cayce, Brett Sheneman, Houston, Angela Sorensen, Morris C. Carrington, for Relator.
Kurt B. Arnold, John Grinnan Jr., Houston, Jody Sanders, Fort Worth, Jonathan Findley, for Real party in interest Jake Winters and Ashley Lowe.
Panel consists of Justices Jewell, Wilson, and Boatman.
OPINION
Kevin Jewell, Justice
*1 In this original proceeding, relator ExxonMobil Corporation seeks mandamus relief from the trial court’s order denying its second amended motion for summary judgment based on the workers’ compensation bar. We conditionally grant relief.
Background
Real parties in interest, Jake Winters and Ashley Lowe, filed this lawsuit to recover for personal injuries Winters allegedly received on March 6, 2022 while working at ExxonMobil’s facility in Baton Rouge, Louisiana. Winters and Lowe are Texas residents. Winters1 alleged that he suffered head, neck, back, brain, and other injuries from the unscheduled release of carbon dioxide into a vessel where he was working. He asserted claims under Texas common law for negligence, gross negligence, and premises liability.2
Among other defenses, ExxonMobil asserted the exclusive-remedy defense under the Texas Workers’ Compensation Act (the “Act”). Based on the workers’ compensation bar, ExxonMobil moved for traditional summary judgment on Winters’s negligence and gross negligence claims. After Winters amended the petition to add a claim for intentional torts, ExxonMobil filed a second amended motion for traditional and no-evidence summary judgment by which it sought summary judgment on all claims.
On the day of the incident, Winters was employed by a subcontractor, Brown & Root Industrial Services. ExxonMobil based its workers’ compensation bar defense on its assertion that it procured workers’ compensation insurance for Brown & Root employees, including Winters. The trial court denied ExxonMobil’s second amended motion for summary judgment and its motion for reconsideration. ExxonMobil seeks mandamus relief from this order.
Mandamus Standard
Mandamus relief is an extraordinary remedy that is available only when the relator shows both that (1) the trial court clearly abused its discretion; and (2) no adequate remedy by appeal exists. In re Sherwin-Williams Co., 668 S.W.3d 368, 370 (Tex. 2023) (orig. proceeding) (per curiam). A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). A trial court has no discretion in determining what the law is or in applying the law to the facts; thus, a clear failure by the trial court to analyze or apply the law correctly constitutes an abuse of discretion. Id. at 840.
“We determine whether an adequate appellate remedy exists by weighing the benefits of mandamus review against the detriments.” In re Academy, Ltd., 625 S.W.3d 19, 32 (Tex. 2021) (orig. proceeding). Because this balance depends heavily on circumstances, it must be guided by analysis of principles rather than simple rules that treat cases as categories. In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 464 (Tex. 2008) (orig. proceeding). In evaluating the benefits against the detriments, we consider whether mandamus will preserve important substantive and procedural rights from impairment or loss. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004) (orig. proceeding). We consider whether mandamus will “allow the appellate courts to give needed and helpful direction to the law that would otherwise prove elusive in appeals from final judgments.” Id. We also consider whether mandamus will spare the litigants and the public “the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings.” Id.
The Act’s Exclusive-Remedy Defense
*2 The Act is “a comprehensive legislative framework that creates a statewide no-fault insurance system for workers injured or killed in the course and scope of their employment.” Tex. Pol. Subdivisions Joint Self-Ins. Fund v. Tex. Dep’t of Ins.–Div. of Workers’ Comp., 681 S.W.3d 491, 493 (Tex. App.—Austin 2023, pet. denied). It provides reciprocal benefits to both subscribing employers and their employees. Waste Mgmt. of Tex., Inc. v. Stevenson, 622 S.W.3d 273, 285 (Tex. 2021); TIC Energy & Chem., Inc. v. Martin, 498 S.W.3d 68, 72 (Tex. 2016). “Covered employees sustaining work-related injuries are guaranteed prompt payment of their medical bills and lost wages without the time, expense, and uncertainty of proving liability under common-law theories.” TIC Energy & Chem., 498 S.W.3d at 72. “In exchange, the Act prohibits employees from seeking common-law remedies from their employers by making workers’ compensation benefits an injured employee’s exclusive remedy.” Id. at 72-73. The supreme court has historically “construed the [the Act] liberally in favor of coverage as a means of affording employees the protections the Legislature created.” Waste Mgmt. of Tex., 622 S.W.3d at 285.
Participation in the Act’s protections is voluntary. See Port Elevator-Brownsville v. Casados, 358 S.W.3d 238, 241 (Tex. 2012); Tex. Labor Code § 406.002. If an employer subscribes to workers’ compensation insurance, employees of the subscribing employer may opt out and waive coverage, thereby “retain[ing] the common-law right of action to recover damages for personal injuries or death.” Tex. Lab. Code § 406.034(b). But employees of subscribing employers who do not elect to opt out of coverage within the prescribed time waive their “right of action at common law or under a statute of this state to recover damages for personal injuries or death sustained in the course and scope of the employment.” Id. § 406.034(a).
For the subscribing employer, the Act provides a defense to the injured employee’s common-law claims. HCBeck, Ltd. v. Rice, 284 S.W.3d 349, 350 (Tex. 2009). This defense provides in material part that “[r]ecovery of workers’ compensation benefits is the exclusive remedy of an employee covered by workers’ compensation insurance coverage or a legal beneficiary against the employer or an agent or employee of the employer for the death of or a work-related injury sustained by the employee.” Tex. Lab. Code § 408.001(a).
To establish the exclusive-remedy defense, and therefore defeat a common-law claim for personal injury damages, a defendant must show that (1) it was the plaintiff’s employer within the meaning of the Act; and (2) it subscribed to workers’ compensation insurance. ExxonMobil Corp. v. Alvarez, 693 S.W.3d 794, 801 (Tex. App.—Houston [14th Dist.] 2024, no pet.).
ExxonMobil was not Winters’s employer; Winters was employed by ExxonMobil’s subcontractor, Brown & Root. But for purposes of the Act, a general contractor may be deemed the employer of a subcontractor’s employees if there is “a written agreement under which the general contractor provides workers’ compensation insurance coverage to the subcontractor and the employees of the subcontractor.” Tex. Labor Code § 406.123(a), (e); see Alvarez, 693 S.W.3d at 801.
Thus, to establish the exclusive-remedy defense, ExxonMobil had to prove the existence of such an agreement and that coverage was provided to Winters. An employer that meets this burden is immune from liability for common-law negligence, and the employee’s exclusive remedy lies within the Act. Phillips v. Am. Elastomer Prods., L.L.C., 316 S.W.3d 181, 186-87 (Tex. App.—Houston [14th Dist.] 2010, pet. denied). Although the exclusive-remedy provision bars a subscribing employee from recovering damages for work-related injuries that are attributable to the subscribing employer’s negligence and gross negligence, it does not bar the employee from recovering damages for work-related injuries that are attributable to intentional conduct if the employee can establish the employer’s specific intent to inflict such injuries. Mo-Vac Serv. Co., Inc. v. Escobedo, 603 S.W.3d 119, 125, 128 (Tex. 2020). That is, for the intentional-tort exception to apply, an employer must believe that its actions are substantially certain to result in a particular injury to a particular employee, not merely highly likely to increase overall risks to employees in the workplace. Id. at 130.
*3 Because it was the moving party below, ExxonMobil had the initial burden of showing that it was entitled to judgment as a matter of law on its exclusive-remedy defense. See Tex. R. Civ. P. 166a(c). If ExxonMobil proved that defense, then the burden shifted to the plaintiffs to raise a fact issue or otherwise show that summary judgment was improper. See M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23-24 (Tex. 2000) (per curiam). When deciding whether the parties have met these respective burdens, we consider the trial court’s ruling de novo, and we review all of the evidence in the light most favorable to the plaintiffs because they are the nonmovants. See Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).
ExxonMobil’s motion challenged the intentional-tort claim under no-evidence standards. Tex. R. Civ. P. 166a(i). In such a motion, the movant must assert that no evidence exists to support one or more essential elements of the claim or defense on which an adverse party would have the burden of proof at trial. Id.; see Draughon v. Johnson, 631 S.W.3d 81, 88 (Tex. 2021). The burden then shifts to the nonmovant to produce more than a scintilla of evidence raising a genuine issue of material fact on each challenged element. Tex. R. Civ. P. 166a(i); see King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). If the nonmovant does not meet its burden, the trial court must grant the no-evidence motion. Tex. R. Civ. P. 166a(i).
Analysis
A. The Act’s exclusive-remedy provision bars Winters’s negligence, gross negligence, and premises liability claims.
1. ExxonMobil proved a written agreement to provide workers’ compensation insurance to Brown & Root employees.
The first element is whether there is “a written agreement under which the general contractor provides workers’ compensation insurance coverage to the subcontractor and the employees of the subcontractor.” Tex. Lab. Code § 406.123(a).
Not long ago in Alvarez, this court concluded that ExxonMobil satisfied its burden of showing that it was entitled to judgment as a matter of law as to the plaintiffs’ workplace negligence claims based on the Act’s exclusive-remedy provision. 693 S.W.3d at 802-05. There, we held that ExxonMobil and its subcontractor Brock Services, LLC—the plaintiffs’ employer—entered into a Standard Procurement Agreement that was in effect at the time of the workplace incident involving the plaintiffs. Id. at 802. Under the terms of the agreement, Brock Services was the “Supplier,” ExxonMobil was an “Affiliate,” and any Affiliate that issued a purchase order was a “Purchaser.” Id. The agreement further stated: “Purchaser may furnish workers compensation insurance for Services performed by Supplier at the covered sites.” Id. As we said, “[t]hough worded permissively, this provision satisfies the written-agreement requirement under the Act.” Id. at 802, 804.
Here, like in Alvarez, Winters was employed by an ExxonMobil subcontractor. Also like in Alvarez, ExxonMobil presented evidence of “a written agreement under which the general contractor provides workers’ compensation insurance coverage to the subcontractor and the employees of the subcontractor.” Tex. Lab. Code § 406.123(a). Among ExxonMobil’s summary-judgment evidence is a copy of the Standard Procurement Agreement (the “SPA”) between itself and Brown & Root, which was effective (as reflected in an amendment) at the time of the workplace incident involving Winters. Like in Alvarez, the SPA provided that Brown & Root was the “Supplier,” ExxonMobil was an “Affiliate,” and any Affiliate that issued a purchase order was a “Purchaser.” The Agreement further stated: “Purchaser may furnish workers compensation insurance for Services performed by Supplier at the covered sites.” Thus, ExxonMobil met its summary-judgment burden on the first element. The burden shifted to Winters to raise a fact issue or otherwise show that summary judgment was improper.
*4 In response to this evidence, Winters claimed that ExxonMobil could not be deemed Winters’s statutory employer because it did not conclusively prove that it issued a “purchase order” for Winters’s work at the Baton Rouge Refinery. In Alvarez, however, we expressly held that “there is nothing in the Act that conditions the exclusive-remedy defense on a particular sequence of documentation,” including “proof of purchase orders.” Id. at 803-04. Instead, we held that “the Act merely requires a written agreement that provides for workers’ compensation insurance coverage” and proof of coverage. Id. at 803. Thus, consistent with our holding in Alvarez, we conclude that ExxonMobil’s SPA with Brown & Root “satisfie[d] the written-agreement requirement under the Act, which means that ExxonMobil can be deemed [Winters’s] statutory employer.” Id. at 802.
2. ExxonMobil provided Texas workers’ compensation insurance to Winters.
Regarding the second element—whether ExxonMobil subscribed to workers’ compensation insurance—the Alvarez court concluded that ExxonMobil produced conclusive evidence that it provided workers’ compensation coverage to Brock Services’ employees. Id. This court arrived at that conclusion based on an email from ExxonMobil’s insurance agent to Brock Services, notifying Brock Services of its enrollment in “ExxonMobil OCIP – Owner Controlled Insurance Program.” Id. The email included a copy of the insurance policy issued by insurance carrier Chubb. Id. The policy named Brock Services as a named insured, covered Brock Services’ employees on the date of the workplace incident, and listed the refinery where the workplace incident occurred as one of the covered sites. Id.
In this case, the summary-judgment evidence included the enrollment document executed by Brown & Root showing its enrollment in the “ExxonMobil OCIP – Owner Controlled Insurance Program.” In the enrollment document, Brown & Root agreed that workers’ compensation insurance coverage was being provided to its employees under an “OCIP” program. Brown & Root also agreed that its enrollment in the OCIP program was “for purposes of Texas Labor Code sec. 406.123.” The evidence also included a February 2, 2022 email from ExxonMobil’s insurance agent providing Brown & Root with a copy of a “2022 Workers’ Compensation Renewal Policy/Endts” issued by Chubb. The Chubb policy identified the subcontractor, Brown & Root, as a named insured, and applied to Brown & Root employees on the date of the workplace incident. The policy also listed the “Baton Rouge Refinery,” where the workplace incident occurred, as one of the covered sites. The policy’s Information Page expressly stated that the Workers’ Compensation Insurance Part of the policy applies to Texas workers’ compensation law. Thus, consistent with our holding in Alvarez, we conclude that ExxonMobil produced conclusive evidence that it provided workers’ compensation insurance to Brown & Root employees, including Winters, that was effective on the day of the incident. Id. Accordingly, the burden of proof shifted to Winters on the second element.
In response, Winters argued that genuine issues of material fact exist regarding whether ExxonMobil’s workers’ compensation insurance policy covered accidental injuries that occurred in Louisiana. Specifically, he argued that ExxonMobil failed to demonstrate that Winters could receive Texas workers’ compensation benefits when he (1) worked for a Louisiana company; (2) at a Louisiana worksite; (3) with no evidence of any Texas work. But the policy at issue states that it applies to “TX” workers’ compensation laws and that the coverage provided is not restricted to injuries that occur in Texas. The policy states that it “covers operations conducted at the workplace defined in the Designated Workplace Exclusion,” and that definition includes the Baton Rouge Refinery specifically. Thus, the policy covers accidental injuries occurring at the Baton Rouge Refinery.
*5 Moreover, under the Act an employee who is injured while working in another jurisdiction, like Louisiana, is entitled to all the benefits of the Act if (1) the injury would be compensable if it had occurred in this state; and (2) the employee has significant contacts with this state or the employment is principally located in this state. Tex. Labor Code § 406.071(a). There is no dispute that Winters’s alleged injuries would be compensable under the Act if they had occurred in Texas. See id. § 406.031(a) (providing that “[a]n insurance carrier is liable for compensation for an employee’s injury without regard to fault or negligence if … at the time of injury, the employee is subject to this subtitle; and … the injury arises out of and in the course and scope of employment”).
ExxonMobil also presented conclusive evidence that Winters had “significant contacts” with Texas. An employee has significant contacts with Texas “if the employee was hired or recruited in [Texas] and the employee … was injured not later than one year after the date of hire.” Id. § 406.071(b)(1). Winters alleged that he is a Texas resident, and ExxonMobil presented evidence that Brown & Root recruited Winters to work at the Baton Rouge Refinery while Winters resided in Texas. The evidence also demonstrates that Winters’s alleged injuries occurred less than a week after his date of hire. Accordingly, Winters failed to raise a genuine issue of material fact regarding whether ExxonMobil provided Texas workers’ compensation insurance to him.
B. No conflict of laws analysis is necessary.
Winters argues that the trial court could not grant summary judgment on ExxonMobil’s affirmative defense without a choice-of-law analysis. He contends that choice-of-law principles show that Louisiana law governs the exclusive-remedy issue.
Plaintiffs are Texas residents, and they pleaded claims against ExxonMobil that, in their own words, “arise under the common laws of Texas.” Injuries Texas residents suffer out of state potentially implicate conflict-of-laws analysis. In Texas, “[a]n action for damages for the death or personal injury of a citizen of this state … may be enforced in the courts of this state, although the wrongful act, neglect, or default causing the death or injury takes place in a foreign state …” Tex. Civ. Prac. & Rem. Code § 71.031(a). In such cases, Texas courts “shall apply the rules of substantive law that are appropriate under the facts of the case.” Id. § 71.031(c).
Still, we need not decide which state’s laws apply unless those laws conflict. Sonat Expl. Co. v. Cudd Pressure Control, Inc., 271 S.W.3d 228, 231 (Tex. 2008). We presume Louisiana law is the same as Texas law on the relevant issue unless the party seeking a choice-of-law analysis proves otherwise. See Coca-Cola Co. v. Harmar Bottling Co., 218 S.W.3d 671, 685 (Tex. 2006); Klinek v. LuxeYard, Inc., 596 S.W.3d 437, 450 n.9 (Tex. App.—Houston [14th Dist.] 2020, pet. denied); Weatherly v. Deloitte & Touche, 905 S.W.2d 642, 650 (Tex. App.—Houston [14th Dist.] 1995, writ dism’d w.o.j.), leave granted, mand. denied, 951 S.W.2d 394 (Tex. 1997). If no conflict exists that affects the outcome of an issue, “there can be no harm in applying Texas law.” Compaq Computer Corp. v. Lapray, 135 S.W.3d 657, 672 (Tex. 2004).
In the summary-judgment response, Winters cited two alleged conflicts between the workers’ compensation laws of Texas and Louisiana: (1) Texas employers’ participation in the Act is voluntary, whereas Louisiana employers’ participation in that state’s workers’ compensation scheme is mandatory;3 and (2) Texas recognizes an exception to the exclusive-remedy provision (a) for intentional acts and (b) for gross negligence in wrongful death cases, whereas Louisiana provides an exception only for intentional acts.4
*6 These are not material differences here and neither conflict affects the application of the exclusive-remedy provision in this case. First, ExxonMobil subscribed to Texas workers’ compensation insurance and provided such insurance to Winters’s benefit; thus, the fact that ExxonMobil could have opted not to subscribe is immaterial. Moreover, although Texas provides an exception to the exclusive-remedy provision for gross negligence claims in wrongful death cases, and Louisiana does not, this case is not a wrongful death case. Winters has not cited a relevant conflict between Texas and Louisiana workers’ compensation laws applicable in non-fatal personal injury cases like this one.
In further support of his choice-of-law argument, Winters cites this court’s decision in Wellons v. Valero Refining-New Orleans, L.L.C., 616 S.W.3d 220 (Tex. App.—Houston [14th Dist.] 2020, pet. denied). There, a panel of this court recognized a conflict between Louisiana’s and Texas’s respective workers’ compensation laws.
However, the necessity of a choice-of-law analysis is determined on a case-by-case basis,5 and Wellons is distinguishable. In Wellons, this court examined whether Louisiana’s or Texas’s exclusive remedy provision should apply in a wrongful death action where the plaintiffs (the decedent’s widow and daughter) brought claims against the decedent’s employer for negligence and gross negligence. Id. at 222-23. The decedent suffered fatal injuries during a workplace accident at a Louisiana refinery. Id. at 222. But the decedent was domiciled and hired in Texas, and the plaintiffs received Texas workers’ compensation benefits following the decedent’s death. Id. The Wellons court ultimately held that the trial court did not err in applying Louisiana law to the plaintiffs’ claims. Id. 226-28. Before reaching that holding, however, the Wellons court determined that a choice-of-law analysis was necessary due to a relevant conflict between Louisiana’s and Texas’s exclusive remedy provisions—namely, that “the exception to the exclusive remedies provision of the Louisiana statute includes only liability resulting from an intentional act, whereas the exception to the exclusive remedies provision of the Texas statute permits the recovery of exemplary damages if an employee’s death was caused by the employer’s intentional conduct or by the employer’s gross negligence.” Id. at 224 (citing Tex. Labor Code § 408.001(a)-(b) and La. Rev. Stat. § 23:1032(A), (B)). That case does not apply here, where there is no relevant conflict.
Winters also relies on Hughes Wood Products, Inc. v. Wagner, 18 S.W.3d 202 (Tex. 2000), but that case is distinguishable too. In Hughes, the plaintiff, a Texas resident, sued the defendant, a Texas corporation, in Texas after suffering non-fatal injuries while cutting timber owned by the defendant in Louisiana. Id. at 204. At the time the plaintiff was injured, the defendant had Louisiana workers’ compensation insurance but had not subscribed to workers’ compensation insurance in Texas. Id. Thus, unlike here, the defendant in Hughes specifically invoked Louisiana workers’ compensation law and its exclusive remedy provision because it was a subscriber in Louisiana but not in Texas. Id. Because the plaintiffs sued in Texas, however, the court conducted a choice-of-law analysis to determine whether it was appropriate to apply Louisiana’s exclusive-remedy provision under the facts of that case. See id. at 204-05; see also Tex. Civ. Prac. & Rem. Code § 71.031(c) (requiring courts to “apply the rules of substantive law that are appropriate under the facts of the case”). The supreme court ultimately concluded that “there is no policy reason to refuse to apply Louisiana’s exclusive workers’ compensation remedy.” Hughes, 18 S.W.3d at 206-07.
*7 Winters’s case is clearly distinguishable from Hughes, as ExxonMobil is a Texas subscriber, provided Texas workers’ compensation insurance to Winters, and is seeking immunity under Texas’s exclusive-remedy provision.
Accordingly, because Winters did not meet his burden to demonstrate a relevant conflict between the laws of Texas and Louisiana that affects the outcome of this case, we presume that Texas law applies. Winters cannot defeat ExxonMobil’s entitlement to the exclusive-remedy defense based on a conflict-of-laws argument.
We hold that Winters’s negligence-based claims (negligence, gross negligence, and premises liability) are barred by the Act’s exclusive-remedy provision. Thus, the trial court abused its discretion in denying ExxonMobil’s motion for summary judgment as to those claims.
C. Winters did not raise a material fact issue on the intentional-tort exception to the exclusive-remedy provision.
Winters alleged that ExxonMobil’s intentional acts or omissions caused the workplace incident that led to Winters’s injuries. ExxonMobil moved for no-evidence summary judgment on this claim.
Texas has long recognized a common-law exception to the Act’s exclusive-remedy provision for certain intentional torts. See Berkel & Co. Contractors, Inc. v. Lee, 612 S.W.3d 280, 284-85 (Tex. 2020); Escobedo, 603 S.W.3d at 124-130. For the intentional-tort exception to the exclusive remedy to apply, the employer must either (1) purposely desire to cause the consequences of its act, or (2) believe that its actions are substantially certain to result in a particular injury to a particular employee, not merely highly likely to increase overall risks to employees in the workplace. See Escobedo, 603 S.W.3d at 121, 130. Under either theory, the determinative factor must be “not the gravity or depravity of the employer’s conduct but rather the narrow issue of intentional versus accidental quality of the injury.” Id. at 126. The common-law liability of the employer cannot be stretched to include accidental injuries—even those caused by the gross, wanton, willful, deliberate, intentional, reckless, culpable, or malicious negligence, breach of statute, or other misconduct—as such conduct falls short of “genuine intentional injury.” Id. at 125-26. Thus, the common-law intentional-injury exception will not reach, for example, circumstances such as an intentional failure to furnish a safe place to work, unless the employer believes its conduct is substantially certain to cause the injury. Reed Tool Co. v. Copelin, 689 S.W.2d 404, 407 (Tex. 1985). The supreme court has given us several relevant guidelines.
First, it is not enough that the defendant intended the actions that led to the result. Escobedo, 603 S.W.3d at 127. “Intentional actions that result in harm are not necessarily actions intended to cause harm.” Taylor v. Washburn-Grant, No. 01-09-00458-CV, 2010 WL 4484179, at *3 (Tex. App.—Houston [1st Dist.] Nov. 10, 2010, pet. denied) (mem. op.). In Reed Tool, the supreme court explained that “[t]o establish intentional conduct, more than the knowledge and appreciation of risk is necessary; the known danger must cease to become only a foreseeable risk which an ordinary, reasonable, prudent person would avoid (ordinary negligence), and become a substantial certainty.” 689 S.W.2d at 406. Thus, the Reed Tool court 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 [its] conduct is substantially certain to cause the injury.” Id. at 407.
*8 Second, plaintiffs may not satisfy their burden by showing that a defendant knew that someone would get injured by its conduct. Since Reed Tool, “Texas has held that dangerous conduct, standing alone, does not support a finding of intent.” Berkel, 612 S.W.3d at 285. In Escobedo, for instance, the supreme court explained that “[i]n workers’ compensation cases, it is not enough to show that all the defendant’s employees were at risk all the time due to overall dangerous job conditions, thus rendering any injury sustained inevitable.” 603 S.W.3d at 131. Rather, the intentional-tort exception “requires the defendant to know that specific consequences are substantially certain to result from the defendant’s conduct to prevent the intentional-injury exception from devolving into a standard of exceptionally egregious gross negligence.” Id. at 130. The plaintiff must show that his employer believed that injury to a particular employee from a definite risk was substantially certain to occur. Id. at 129.
Third, plaintiffs must also narrow the time frame, rather than leaving it “impermissibly indefinite,” and establish a “direct causal chain” between the defendant’s conduct and the injuries. Id. at 131.
In its no-evidence motion, ExxonMobil argued that Winters had no evidence that it purposely desired to injure him that day or that it believed that Winters’s particular injury was substantially certain to result from his work activity.
In response, Winters produced evidence further describing the circumstances of the incident. According to him, a flash and release of toxic vapors occurred during torch cutting of demister supports inside of a vessel at the refinery. The vessel is located in the heavy cat naphtha unit where ExxonMobil removes impurities from naphtha prior to selling it. The vessel is used to process petroleum naphtha. Naphtha is a highly flammable substance that generates vapors that are toxic to humans.
The incident occurred during a turnaround, which is a shutdown period during which ExxonMobil conducts maintenance and other activities. ExxonMobil planned to remove the demister box in order to install new components. Winters and others were tasked with removing the demister supports, which required them to enter the confines of the vessel, a Tier 1 Confined Space. ExxonMobil defines a Tier 1 Confined Space Entry as “access by personnel into an enclosed or confined space that contains or has the potential to contain specific and elevated safety and health hazards or problematic rescue and/or escape concerns.” An ExxonMobil corporate representative stated that ExxonMobil is aware of the elevated safety and health hazards associated with confined space work, including asphyxiation, inhalation problems, and fires. ExxonMobil mitigates such hazards inside the vessel, among other ways, by crafting ventilations plans to ensure those working inside the vessel have sufficient oxygen.
When the turnaround began, an inspector for ExxonMobil opened the vessel and found naphtha sludge filling the vessel up to the manway. The inspector also found “process” or naphtha scale build-up in the demister box itself. ExxonMobil hired a professional cleaning company to chemically clean and steam the vessel. However, even after cleanings, ExxonMobil knew “some form of residual [naphtha]” remained inside the vessel.
The evidence shows that ExxonMobil planned for the demister supports to be removed by hot work. ExxonMobil defines “hot work” as “any type of work that has an open flame, or may produce uncontrolled sparks or arcs that may ignite a flammable mixture or flammable/combustible material.” Hot work thus includes cutting, welding, and grinding.
ExxonMobil knew that hot work combined with naphtha could result in the accumulation of toxic fumes and vapors, as well as the risk of a flash fire or explosion inside the vessel. The evidence shows that ExxonMobil issued a Safety Data Sheet for naphtha more than two years before the incident. The data sheet states that naphtha is a highly flammable liquid capable of releasing vapors that can readily form flammable mixtures. It states that the accumulation of these vapors can cause a flash fire or explosion if ignited. It states that naphtha should be kept “away from heat/sparks/open flames/hot surfaces,” and that “[o]nly non-sparking tools” should be used around it.
*9 The evidence shows that, despite knowledge of the hazards, ExxonMobil repeatedly issued work permits for hot work inside the vessel, including on March 5, 2022, the day before the incident. Winters produced evidence that a flash fire, like the one that caused his alleged injuries, cannot happen unless fuel, oxygen, and an ignition source come together, which is known as the “fire triangle.” Thus, when issuing a hot work permit, ExxonMobil must ensure these three elements do not combine to form a fire triangle. Winters contends that ExxonMobil issued the March 5, 2022 work permit for hot work (an ignition source) inside the vessel knowing that residual naphtha (fuel) and oxygen were present. Winters thus claimed that ExxonMobil “knowingly put the fire triangle together,” and that “once that fire triangle was intentionally formed by [ExxonMobil’s] (in)actions, not only was this incident substantially certain to occur—it was inevitable.”
To support his theory, Winters attached deposition testimony from a corporate representative of one of ExxonMobil’s safety contractors. He stated that given the presence of these three elements inside the vessel, “it’s not a matter of if [a fire triangle’s] going to happen,” “[i]t’s a matter of when.” The corporate representative stated that the flash fire that injured Winters was “inevitable.” Winters also relied on deposition testimony of another safety contract employee. That employee stated that ExxonMobil knew that “when they issued a work permit for hot work inside [the vessel], they were putting all three elements of the fire triangle together.”
Winters also contends that ExxonMobil misrepresented facts on the March 5, 2022 permit and failed to identity or mitigate known hazards inside the vessel before permitting hot work. Winters produced an affidavit from an expert in industry safety regulations and standards. The expert stated that “[p]ermitting is not an accidental process,” and that “[e]xpress authorization is required by [ExxonMobil] … for contractors to complete work at [ExxonMobil’s] refinery.” Although the permitting process requires ExxonMobil “to make various checks to ensure the safety of the hot work,” the permit at issue did not indicate the existence of any safety data sheets for naphtha. To the contrary, the permit indicated that “all energy sources were isolated,” that “the equipment was fire safe and clean of combustible materials for hot work,” and that respirators and supplied air were not required. ExxonMobil also did not conduct a safety analysis before permitting hot work inside the vessel.
Additionally, Winters relied on a declaration from John R. Puskar, a professional engineer who has spent decades consulting with manufacturing facilities, refineries, and chemical plants regarding safety and risk management. Puskar stated that “[t]hrough the permitting process, Exxon expressly authorized Mr. Winters to enter and conduct work in a dangerous area where an event was bound to occur.” He stated:
It is clearly documented by Exxon and confirmed by deposition testimony that Exxon knew that flammable and potentially toxic residuals remained in the [vessel] and specifically in the work area, knew that oxygen would be present in approving the ventilation plan, and expressly authorized hot work that included arc welding with temperatures of thousands of degrees Fahrenheit to take place. Under those circumstances, it was certain that the elements of the fire triangle would come together and cause an ignition event, making for the combustion of these materials and releasing poisonous gases in the immediate vicinity of Mr. Winters …. Exxon inevitably caused a flash fire and injuries to Mr. Winters.
According to Winters, the totality of this evidence shows that ExxonMobil committed a series of intentional acts that “put [him] in the zone of danger where a fire would inevitably occur with no warning of the hazards and no way to protect himself.” Winters thus contends that the intentional-tort exception to the exclusive-remedy defense applies. But none of Winters’s evidence shows that ExxonMobil had the intent necessary for the intentional-tort exception to apply. Winters produced evidence that ExxonMobil knew that residual naphtha, oxygen, and an ignition source were present inside the vessel, and that ExxonMobil knew these elements could combine inside the vessel and cause a flash fire. However, this evidence only shows that ExxonMobil believed that a flash fire inside the vessel resulting in injuries to a worker at some point in time was possible. It shows neither that ExxonMobil believed that the specific flash fire was substantially certain to occur when it did nor that it would result in injuries to Winters or another small group of potential workers.
*10 In Escobedo, the supreme court explained that its decision in Rodriguez v. Naylor Industries, Inc., 763 S.W.2d 411 (Tex. 1989), illustrated the evidence needed for the intentional-tort exception to apply. Escobedo, 603 S.W.3d at 129. The supreme court stated that the following evidence in Rodriguez raised a fact issue regarding intent:
Naylor’s employee, Rodriguez, was told by his supervisor, Cameron, to drive a specific delivery truck on a specific 250-mile route from Rockdale to Corpus Christi by way of Port Lavaca. Rodriguez inspected the truck’s six tires—two on the front axle and four on the rear—and reported to Cameron that they were cracked and had no tread and that the inner tube was even visible on one. Cameron responded: “That truck has to go to Port Lavaca and then … to Corpus Monday morning …. Either take it or walk.” Some 70 miles into the trip, one of the front tires blew out. Rodriguez hitchhiked four miles to the nearest town, called another Naylor supervisor, Wallace, in Houston, about 100 miles away, and asked him to bring a spare tire. When Wallace arrived, he instructed Rodriguez to replace the ruined front tire with one of the back tires. Though Wallace knew it was illegal to drive the truck without all six tires, he told Rodriguez to continue driving to a place where they could get a new tire. Rodriguez continued the trip with Wallace following him. Sixty miles later, the lone back tire on one side blew out, causing the truck to flip over, injuring Rodriguez.
The evidence showed that Cameron had to know that driving the truck in its condition was substantially certain to result in a blowout resulting in a loss of control. Cameron’s order to “either drive the truck or walk” showed that he intended Rodriguez to risk the specific danger. When a blowout did occur, Wallace’s demand that Rodriguez keep driving also showed that he intended Rodriguez to continue to take a risk that was not only substantially certain but had already occurred once to the same driver in the same truck with the same problem an hour earlier.
Id. (citing Rodriguez, 763 S.W.2d at 412-13) (footnotes omitted). The supreme court acknowledged that there was no direct evidence that Naylor was substantially certain a truck tire would blow, injuring Rodriguez.” Id. at 130. But the court explained that “knowing the condition of the tires, knowing that one had already blown, and knowing that Rodriguez needed to be followed to get a new tire was … evidence to raise a fact issue.” Id.
Winters contends that he satisfied the evidentiary burden described in Rodriguez. But we disagree. Unlike in Rodriguez, there is no evidence that ExxonMobil had reason to believe its actions were substantially certain to result in specific injuries to Winters. The defendant in Rodriguez knew that the tires were in a dangerous condition, knew that one tire had already blown, and knew that the plaintiff needed to be followed while driving to get another tire. See Escobedo, 603 S.W.3d at 130. Here, there is no specific evidence that ExxonMobil knew or believed sufficient residual naphtha remained inside the vessel after the cleanings to cause the flash fire that injured Winters. For instance, there is no evidence that ExxonMobil was aware that a flash fire was imminent days before the incident occurred. Rather, evidence shows that workers had been performing hot work inside the vessel without issue. Evidence also shows that ExxonMobil performed continuous gas monitoring and that the gas tests results for the March 5, 2022 permit indicated no hazardous materials were inside the vessel. Additionally, Winters’s evidence does not narrow the time frame in which ExxonMobil allegedly knew or believed the flash fire would occur, but leaves it impermissibly indefinite. See id. at 131.
*11 Simply put, it is not enough for Winters to show that anyone working inside the vessel was at risk at all times due to the presence of residual naphtha, oxygen, and an ignition source, which rendered any injury sustained by any worker inevitable. Rather, Winters needed evidence that ExxonMobil believed specific injuries would result to Winters from the presence of residual naphtha, oxygen, and an ignition source inside the vessel with substantial certainty. As in Escobedo, the causal sequence the evidence establishes in this case is “more akin to the recipe for eventual disaster in Reed Tool than the direct causal chain in Rodriguez.” Id. (footnotes omitted). Accordingly, we conclude that Winters did not raise a fact issue on the applicability of the intentional-tort exception.
D. ExxonMobil lacks an adequate remedy by appeal.
We conclude that the trial court abused its discretion by denying ExxonMobil’s motion for summary judgment on Winters’s negligence, gross negligence, premises liability, and intentional-conduct claims.6 We now address whether ExxonMobil established that it lacks an adequate remedy by appeal.
Mandamus relief is generally “unavailable when a trial court denies summary judgment, no matter how meritorious the motion.” McAllen Med., 275 S.W.3d at 465. “Only extraordinary circumstances will justify granting mandamus relief when a trial court erroneously denies a motion for summary judgment.” In re Ooida Risk Retention Grp., Inc., 475 S.W.3d 905, 913 (Tex. App.—Fort Worth 2015, orig. proceeding); see Academy, 625 S.W.3d at 32, 35-36. The most frequent use of mandamus relief involves cases where the very act of proceeding to trial, regardless of the outcome, would defeat the substantive right involved. McAllen Med., 275 S.W.3d at 465. And the supreme court has held that mandamus relief may be warranted to correct the erroneous denial of a summary judgment motion if the relator would suffer impairment or loss of an important substantive right while waiting for the error to be corrected on appeal. See Academy, 625 S.W.3d at 35-36 (granting mandamus relief from erroneous denial of summary-judgment motion because requiring relator to proceed to trial—and await error’s correction on appeal—would defeat relator’s substantive right to immunity from suit under federal law and obligate relator “to continue defending itself against multiple suits barred by federal law”).
Much like the circumstances in Academy, the Act’s exclusive-remedy feature provides an “important substantive right” because it grants “immunity from common-law tort claims.” Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 436 (Tex. 2009) (“The Act outlines a process by which a general contractor qualifies for immunity from common-law tort claims brought by the employees of its subcontractors.”); see Hughes, 18 S.W.3d at 206 (stating the Act “grants employers who carry workers’ compensation coverage for their employees immunity from suit for most work-related injuries”). Mandamus is therefore proper when a party has such statutory immunity, which is “effectively lost if a case is erroneously permitted to go to trial.” In re Facebook, Inc., 625 S.W.3d 80, 87 (Tex. 2021) (orig. proceeding).
*12 The supreme court has further held that “[t]he exclusive-remedy provision is essential to the Act’s continued success.” Escobedo, 603 S.W.3d at 125. The Texas Legislature enacted the Act over a century ago to “balance[ ] two competing interests: providing compensation for injured employees and protecting employers from the cost of litigation.” Tex. Mut. Ins. Co. v. PHI Air Med., LLC, 610 S.W.3d 839, 843 (Tex. 2020). The high court has explained that “[i]f employers are required to provide not only workers’ compensation but also to defend and pay for accidental injuries, their ability to spread the risk through reasonable insurance premiums is threatened, and the balance of advantage and detriment [between employers and employees] would be significantly disturbed.” Reed Tool, 689 S.W.2d at 407.
Consequently, we conclude that the Act’s exclusive-remedy defense (i.e., immunity from tort claims except for certain intentional conduct) is an important substantive right held by ExxonMobil for providing workers’ compensation insurance to Winters. We further conclude that a direct appeal from the erroneous denial of ExxonMobil’s motion for summary judgment is not an adequate remedy because requiring ExxonMobil to proceed to trial and await the error’s correction on appeal would not only defeat ExxonMobil’s substantive right but also undermine the ultimate purpose of our state’s workers’ compensation scheme. Granting mandamus relief will also spare the parties and the public “the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings.” Prudential, 148 S.W.3d at 136.
In sum, the case before us is an extraordinary case where the benefits of granting mandamus relief from the erroneous denial of a motion for summary judgment far outweigh the detriments. Accordingly, ExxonMobil is entitled to mandamus relief. We conditionally grant the petition and order the trial court to vacate its order denying ExxonMobil’s second amended motion for traditional and no-evidence summary judgment and sign an order granting the motion and dismissing the claims against ExxonMobil. We are confident the trial court will comply, and the writ will issue only if it does not.
Footnotes |
|
| 1 | Unless otherwise indicated, we refer to real parties in interest collectively as “Winters.” |
| 2 | Lowe sought loss of consortium damages. This claim is derivative of Winters’s claims for physical injuries. See Motor Exp., Inc. v. Rodriguez, 925 S.W.2d 638, 640 (Tex. 1996) (per curiam). |
| 3 | Compare Tex. Labor Code § 406.002 (a) (providing that “[e]xcept for public employers and as otherwise provided by law, an employer may elect to obtain workers’ compensation insurance coverage”), with La. Rev. Stat. § 23:1168 (requiring employer to secure workers’ compensation for employees by one of several options). |
| 4 | See Tex. Labor Code § 408.001(b) (stating that exclusive remedy provision “does not prohibit the recovery of exemplary damages by the surviving spouse or heirs of the body of a deceased employee whose death was caused by an intentional act or omission of the employer or by the employer’s gross negligence”); Berkel & Co. Contractors, Inc. v. Lee, 612 S.W.3d 280, 281-82 (Tex. 2020) (recognizing narrow common-law exception to exclusive remedy provision for certain intentional torts); see also La. Rev. Stat. § 23:1032 (providing intentional act exception to exclusive remedy provision). |
| 5 | See Tracker Marine, L.P. v. Ogle, 108 S.W.3d 349, 352 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (stating that a choice of law analysis “must be conducted on an individual basis”). |
| 6 | Because Winters’s negligence, gross negligence, premises liability, and intentional conduct claims are barred as a matter of law, so too is Lowe’s claim for loss of consortium. See Reed Tool Co. v. Copelin, 610 S.W.2d 736, 738-39 (Tex. 1980) (holding tortfeasor’s liability for husband’s physical injuries is a prerequisite to wife recovering on derivative claim against tortfeasor for loss of consortium based on husband’s injuries); DeGrate v. Exec. Imprints, Inc., 261 S.W.3d 402, 412 (Tex. App.—Tyler 2008, no pet.) (holding that “[w]hen a loss of consortium claim is derived from an injury to the spouse, the claim is derivative, and thus, must fail if the injured spouse’s claims against the defendant fails”). |