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Texas Mut. Ins. Co. v. Ruttiger
February 17, 2012
381 S.W.3d 430
Texas Supreme Court
Published Opinion

Texas Mut. Ins. Co. v. Ruttiger

Supreme Court of Texas.



Timothy J. RUTTIGER, Respondent.

No. 08–0751.


Argued April 14, 2010.


Rehearing Granted Feb. 17, 2012.


Decided June 22, 2012.


Rehearing Denied Sept. 21, 2012.

Attorneys & Firms

*432 Dan Pozza, Law Offices of Dan Pozza, San Antonio, TX, for Texas Mutual Insurance Company.

Jeffrey L. Raizner, Doyle Raizner LLP, Houston, TX, for Timothy J. Ruttiger.

Thomas R. Phillips, Baker Botts L.L.P., Austin, TX, for Amicus Curiae Liberty Insurance Corporation.

Peter N. Rogers, Rogers Booker & Lewis PC, Richardson, TX, for Amicus Curiae Peter N. Rogers.

Joe K. Longley, Law Offices of Joe K. Longley, Austin, TX, for Amicus Curiae Joe K. Longley.

Peter M. Kelly, Kelly Durham & Pittard LLP, Houston, TX, for Amicus Curiae Texas Trial Lawyers Association.

Thomas R. Phillips, Baker Botts L.L.P., Austin, TX, for Amicus Curiae The American Insurance Association.


Justice GUZMAN joined.

We grant the parties’ motions for rehearing. We withdraw our opinion of August 26, 2011, and substitute the following in its place.

*433 In 1989 the Legislature enacted major amendments to the Workers’ Compensation Act (Act). Aranda v. Insurance Co. of North America, 748 S.W.2d 210 (Tex.1988) to engraft an extra-statutory cause of action for breach of the duty of good faith and fair dealing onto the workers’ compensation system.

We conclude that (1) claims against workers’ compensation insurers for unfair settlement practices may not be made under the Insurance Code, but (2) claims under the Insurance Code may be made against those insurers for misrepresenting provisions of their policies, although in this case there was no evidence the insurer did so.

We also overrule Aranda, 748 S.W.2d 210. We hold that an injured employee may not assert a common-law claim for breach of the duty of good faith and fair dealing against a workers’ compensation carrier.

We reverse the judgment of the court of appeals and render judgment for Texas Mutual Insurance Company.

I. Background

On June 21, 2004, Timothy Ruttiger was working for A & H Electric in Galveston when he reported to his supervisor that he was injured while carrying pipe. He went to the University of Texas Medical Branch at Galveston where he was diagnosed as having bilateral hernia repair surgery to be performed on July 14, 2004.

When A & H’s workers’ compensation carrier, Texas Mutual Insurance Company (TMIC), received written notice that Ruttiger was claiming an injury, it initiated temporary income benefit payments and began investigating. As part of the investigation process, TMIC’s adjuster, Audie Culbert, interviewed A & H employees. One employee told Culbert that Ruttiger had been at a softball tournament the weekend before the alleged injury and had come to work on the morning of the incident with a limp. She later reported that one of Ruttiger’s co-workers informed her Ruttiger was injured at the softball game and “bragged about getting it paid by workers’ comp.” The vice president of A & H said that Ruttiger “wasn’t 100 percent” when he arrived at work on the day of the incident and he “never got a straight story” on how Ruttiger was injured. Culbert testified at trial that he attempted to contact Ruttiger by telephone and by mail, but was unable to do so. Ruttiger denied receiving a letter or phone call from TMIC.

On July 11, Ruttiger’s doctor notified him that TMIC refused to pay for the hernias resulted from Ruttiger’s playing softball and were not work related.

*434 On July 12, 2004, TMIC filed a “Notice of Refused or Disputed Claim” with the Texas Workers’ Compensation Commission1 and discontinued temporary income benefit payments after having sent one check. See id. § 409.021(a)(2).

Two days after he was notified that TMIC refused to pay for his surgery, Ruttiger hired a lawyer to help with his claim. Approximately two months later, in September, Ruttiger’s lawyer contacted TMIC and asked for a copy of the notice of disputed claim. After another month, on October 22, 2004, Ruttiger’s lawyer requested the WCD to set a BRC. See id. hernias. Ruttiger reached maximum medical improvement on August 1, 2005, and was assigned a 1% impairment rating. See id. §§ 408.121–.122.

On June 16, 2005, while his claim was still pending before the WCD and before he had reached maximum medical improvement, Ruttiger sued TMIC and Culbert (generally referred to collectively as TMIC) for violations of hernias, and caused mental anguish, physical impairment, and pain and suffering over and above what he would have suffered if TMIC had timely accepted liability and provided benefits. His allegations as to Insurance Code violations were that TMIC (1) failed to adopt and implement reasonable standards for promptly investigating claims, (2) refused to pay Ruttiger’s claim without having conducted a reasonable investigation, (3) failed to promptly provide a reasonable explanation for denying his claim, (4) failed to attempt to promptly and fairly settle the claim when liability was reasonably clear, and (5) misrepresented the insurance policy to him. He also asserted that TMIC’s Insurance Code violations authorized recovery under the DTPA. Ruttiger’s common law claim was that TMIC breached its duty to properly investigate his claim and denied necessary medical care and other benefits.

The case was tried to a jury, which found that TMIC (1) breached its duty of good faith and fair dealing, (2) committed unfair and deceptive acts or practices that were a producing cause of damages to Ruttiger, and (3) engaged in the unfair and deceptive acts knowingly. The jury found damages for past physical impairment, past and future pain and suffering, past and future loss of credit, past mental anguish, “additional” damages, and attorneys’ fees. The trial court rendered judgment based on the Insurance Code findings, but also provided in its judgment that if the Insurance Code theory of liability failed on appeal, Ruttiger was entitled to recover for TMIC’s breach of the duty of good faith and fair dealing and under the DTPA.

The court of appeals held that there was no evidence of credit reputation damages, but otherwise affirmed the trial court’s judgment allowing recovery under the Insurance Code. 53 TEX.SUP.CT.J. 388 (Mar. 15, 2010).

TMIC makes several arguments for reversing the court of appeals’ judgment: (1) Ruttiger is not entitled to recover for aggravation *436 of his hernias were preexisting;4 (6) there is no evidence that TMIC knowingly violated the Insurance Code because there is no evidence it was actually aware it was being unfair to Ruttiger; and (7) there is no evidence to support the award for mental anguish damages.5

In response, Ruttiger argues that (1) a claim for aggravation of his hernias is separate from his workers’ compensation claim; (2) he exhausted his administrative remedies by requesting and attending a BRC where he entered into a benefit dispute agreement with TMIC; (3) claims under the Insurance Code are allowed in the context of the workers’ compensation scheme; and (4) the jury findings are supported by legally sufficient evidence.6

We begin by considering TMIC’s assertion that the trial court lacked jurisdiction because Ruttiger failed to exhaust his administrative remedies.

II. Exhaustion of Administrative Remedies

Citing American Motorists Ins. Co. v. Fodge, 63 S.W.3d 801 (Tex.2001), TMIC asserts that a trial court lacks jurisdiction over a workers’ compensation claims-handling suit unless the WCD has made a determination that the worker is entitled to the specific benefits wrongly denied or delayed. TMIC argues that in this case the WCD has not done so.

Ruttiger and TMIC attended a BRC and entered into a benefit dispute agreement in which the parties agreed that Ruttiger sustained a compensable injury and had disability beginning August 23, 2004. The WCD approved the agreement. TMIC asserts that this agreement was not a WCD determination sufficient to give the trial court jurisdiction. Ruttiger counters that because at the time he filed this suit there were no disputed issues to be resolved by *437 the WCD, he was not required to continue through the administrative process. We agree with Ruttiger that the trial court had jurisdiction.

As the court of appeals pointed out, the Act provides a dispute resolution process consisting of four possible steps. § 410.169 (providing that the decision of a CCH officer is final in the absence of an appeal).

Here, the parties entered into a benefit dispute agreement at the first BRC held in January 2005. The agreement stated that it resolved the issues in dispute and it was signed by Ruttiger, his attorney, and a representative of TMIC. The agreement was binding on both parties “through the conclusion of all matters relating to the claim” absent circumstances not involved here. Id. § 410.030. The agreement was approved by the WCD and was a sufficient resolution of Ruttiger’s claim by the WCD to constitute exhaustion of his administrative remedies as to whether he suffered an injury in the course of his employment for which medical and income benefits were payable, and as to the date when he became disabled from the injury.

TMIC also asserts that under Id. at 804.

Ruttiger exhausted his administrative remedies as to his claims that TMIC delayed in paying income benefits and the Commission’s approval of the benefit dispute agreement was a determination of specific dates for which income benefits were payable. Accordingly, the trial court had jurisdiction over the claims for delayed payment of income benefits.7

*438 We next consider TMIC’s contentions relating to the Insurance Code.

III. Insurance Code Claims

A. Section 541.060

Chapter 541 of the Insurance Code is entitled “Unfair Methods of Competition and Unfair or Deceptive Acts or Practices.”8 Ruttiger brought claims for violations of Section 541.060, as relevant to Ruttiger’s claims, provides as follows:

Unfair Settlement Practices

(a) It is an unfair method of competition or an unfair or deceptive act or practice in the business of insurance to engage in the following unfair settlement practices with respect to a claim by an insured or beneficiary:

(1) misrepresenting to a claimant a material fact or policy provision relating to coverage at issue;

(2) failing to attempt in good faith to effectuate a prompt, fair, and equitable settlement of:

(A) a claim with respect to which the insurer’s liability has become reasonably clear; ...

(3) failing to promptly provide to a policyholder a reasonable explanation of the basis in the policy, in relation to the facts or applicable law, for the insurer’s denial of a claim or offer of a compromise settlement of a claim;


(7) refusing to pay a claim without conducting a reasonable investigation with respect to the claim....

TEX. INS.CODE § 541.060.

TMIC asserts that because the Labor Code and WCD rules set specific deadlines and procedures for both paying and denying workers’ compensation claims and impose administrative penalties for failing to comply with them, allowing recovery under the Insurance Code would be inconsistent with what the Legislature has deemed to be adequate protections for workers. TMIC concludes that as between Aetna Casualty & Surety Co. v. Marshall, 724 S.W.2d 770 (Tex.1987), an employee has a cause of action under the Insurance Code against a workers’ compensation carrier.

In Id.

We disagreed with Aetna and held that Marshall could recover under the Insurance Code stating that “[t]he mere fact that Marshall was injured while working should not be used as a shield by Aetna to escape the punitive provisions of section 541.060 is incompatible with the provisions of the current Act.

Various aspects of the Texas workers’ compensation system have been criticized from the time the first Employers’ Liability Act was enacted in 1913. See Id. (citing Joint Select Committee on Workers’ Compensation Insurance, A Report to the 71st Texas Legislature 3 (1988) (hereafter “Joint Committee Report”)). In response to the increasing criticism, in 1987 the Legislature appointed an interim committee to study the system.10 Tex. H.R. Con. Res. 27, 70th Leg., 2d C.S., 1987 Tex. Gen. Laws 920. The committee held hearings around the state and in 1988 formulated its report to the Legislature, noting several major areas of concern about the existing system. Joint Committee Report at 2–4. In 1989, the Legislature undertook to reform the workers’ compensation statutes in what has been called “the most divisive legislative endeavor in contemporary Texas politics” up until that time. 1 JOHN T. MONTFORD ET AL., A GUIDE TO TEXAS WORKERS’ COMP REFORM 1 (1991) (hereafter MONTFORD). After failing in the regular and first special session to enact reforms, the Legislature finally did so in a second special session. The key, and most controversial, reforms were in the areas of employee benefits and dispute resolution. See id., at ix. As to the dispute resolution process, the reform amendments “culminated in an essentially new set of Texas workers’ compensation laws.” Id. at 6–14.

Differences between the dispute resolution processes under the former law and the amended Act11 are stark. When a claim was disputed under the former law, the injured employee and the workers’ compensation carrier attended an informal pre-hearing conference. Garcia, 893 S.W.2d at 512. Once a claim was appealed, the IAB lost jurisdiction over the claim and the IAB proceedings, directives, and award were of no further effect. 1 MONTFORD, at 6–33. Under the old law the IAB’s involvement was many times secondary and frequently the IAB proceedings were no more than a “way station” on the way to the courthouse. Id.

The 1989 amendments and the current Act provide significantly more meaningful proceedings at the administrative agency level so as to reduce the number and cost of judicial trials, speed up the time for the entire dispute resolution process, and facilitate interlocutory payment of benefits pending final resolution of disputes. Id. at 6–28. To achieve these purposes the amended Act contains detailed procedures and penalties for failures of the various interested parties to comply with statutory and regulatory requirements.

We recently considered the relationship between a general statutory cause of action and one in which the statute had a more detailed, specific claims resolution process in Lopez, 259 S.W.3d at 153–54.

We held that relief under the more general Whistleblower Act with its comparatively simple administrative exhaustion procedures was incompatible with and foreclosed by the more specific and comprehensive anti-retaliation remedy in the CHRA. Schroeder v. Tex. Iron Works, Inc., 813 S.W.2d 483, 487 (Tex.1991)). We concluded that

[i]t is conceptually untenable that the Legislature would have erected two alternative state statutory remedies, one that enacts a structured scheme favoring *441 investigation and conciliation and carefully constructs rights, remedies, and procedures under that scheme (the CHRA) and one that would significantly undermine that scheme (the Whistleblower Act).

Id. at 155–56.

As we did in Lopez, we must consider the purposes, policies, procedural requirements, and remedies of the Insurance Code and the Workers’ Compensation Act to determine whether the Legislature intended to effectively provide two different remedies to injured workers. The purpose of Chapter 541 of the Insurance Code is to

regulate trade practices in the business of insurance by:

(1) defining or providing for the determination of trade practices in this state that are unfair methods of competition or unfair or deceptive acts or practices; and

(2) prohibiting those trade practices.

TEX. INS.CODE § 541.001. The Chapter provides a private action for damages against someone who has engaged in a specified act or practice. Id. § 541.151. A plaintiff who prevails on such an action is entitled to actual damages and treble damages if the trier of fact finds that the defendant “knowingly” committed the act. Id. § 541.152.

The purpose of the Act is

to provide employees with certainty that their medical bills and lost wages will be covered if they are injured. An employee benefits from workers’ compensation insurance because it saves the time and litigation expense inherent in proving fault in a common law tort claim. But a subscribing employer also receives a benefit because it is then entitled to assert the statutory exclusive remedy defense against the tort claims of its employees for job related injuries.

TEX. LAB.CODE § 408.001(a) (“Recovery of workers’ compensation benefits is the exclusive remedy of an employee covered by workers’ compensation insurance coverage....”). To accomplish these purposes, the Act provides detailed notice and administrative dispute resolution proceedings that include specific deadlines and incorporate a “conveyor-belt” approach. That is, once the administrative dispute resolution process is initiated, a dispute continues through the process until the dispute is resolved either by the parties or by a binding decision through the resolution procedures.

The claims process begins when an employee reports a lost-time injury or occupational disease to the employer. The employer, as required by the Act, then reports the injury claim to the carrier. Id. § 409.005(a). Within fifteen days of receiving written notice of an employee’s injury claim, the carrier must initiate benefit payments or notify the WCD and the employee of its refusal to pay. Id. 28 TEX. ADMIN. CODE § 141.1(h).

If all disputed issues are not resolved at the BRC, the dispute resolution process is designed to automatically move to the next step: the Act requires the WCD to schedule a CCH before a hearing officer within sixty days. § 410.169. A party dissatisfied with the CCH decision may appeal it to an appeals panel, but the hearing officer’s decision is binding during pendency of the appeal. Id.

If a CCH decision is appealed, the appeals panel’s written decision is based on the CCH record, the written request for an appeal, and the response. Id. § 410.203. If the appeals panel does not issue a decision within forty-five days after the response to the appeal request is filed, then the decision of the CCH officer is final absent timely appeal for judicial review. Id. § 410.205(b). Judicial review regarding compensability or income benefits is limited to issues decided by the appeals panel and on which judicial review is specifically sought. Id. § 410.302(b). If trial is by jury, the court must instruct the jury as to the decision of the appeals panel on each of the disputed issues submitted. Id. § 410.304(a). If trial is without a jury, the court is required to consider the decision of the appeals panel. Id. § 410.304(b).

A carrier’s failure to comply with the Act’s requirements, deadlines, and procedures is not without consequences. First, the Act specifies administrative violations both in particular sections and in a general, catchall provision. For example, if a carrier fails to initiate compensation or notify the WCD of its refusal to do so within fifteen days of receiving notice of injury, it is an administrative violation subject to monetary penalties up to $25,000 per day. Id. 415.021. The Act also provides that a carrier or its representative commits an administrative violation for any of twenty-two specified actions, including failing to process claims promptly and in a reasonable and prudent manner, controverting a claim if the evidence clearly indicates liability, and failing to comply with the Act. Id. § 415.002(11), (18), (22). If a carrier refuses or fails to comply with an order of the WCD, either interlocutory or final, or a decision of the commissioner, within twenty days of when the decision or order becomes final, it commits an administrative violation. Id. § 410.208(e). Also, both the WCD and claimant are specifically authorized by the Act to file suit to enforce the order and recover attorneys’ fees. Id. § 410.208(a)-(c). A claimant who brings suit is entitled to recover 12% of the amount of benefits *443 recovered in the judgment as a penalty. Id. § 410.208(d).

Further, the WCD is required to monitor the actions of carriers, as well as other parties in the workers’ compensation system, for compliance with “commissioner rules, [the Act], and other laws relating to workers’ compensation.” Id. § 414.002(a). In addition to its mandate to monitor carriers and other participants in the system, the WCD has a separate mandate to, at the carriers’ expense, “review regularly the workers’ compensation records of insurance carriers as required to ensure compliance with [the Act].” Id. § 414.004(a), (c). The Act also provides that in addition to other sanctions or remedies, the WCD commissioner has authority to assess administrative penalties of up to $25,000 per day per occurrence for violations of the Act. Id. § 415.021(a).

It is apparent that the Act prescribes detailed, WCD-supervised, time-compressed processes for carriers to handle claims and for dispute resolution. It has multiple, sometimes redundant but sometimes additive, penalty and sanction provisions for enforcing compliance with its requirements. Permitting a workers’ compensation claimant to additionally recover by simply suing under general provisions of Insurance Code section 541.060 would be inconsistent with the structure and detailed processes of the Act. Not only would such a recovery be inconsistent with the Act’s goals and legislative intent exhibited in the Act, it could also result in rewarding an employee who is dilatory in utilizing the Act’s detailed dispute resolution procedures, regardless of whether the delay was intentional or inadvertent, because whether and when the dispute resolution begins is by and large dependent on the employee.

For example, Ruttiger’s damages claim was based on TMIC’s delay in providing both income and medical benefits and the delay’s effect on him over and above what the effects of his injury would have been had TMIC not terminated benefits in July 2004. But Ruttiger and his lawyer did not seek immediate resolution of his dispute with TMIC by promptly requesting a BRC. Rather, they waited over three months from the time they knew TMIC was contesting the claim to do so. Ruttiger and TMIC resolved their dispute by agreement at the first BRC they attended—just as is contemplated by the Act’s procedures.12 As we stated in Lopez, 259 S.W.3d at 155–56. If allowed to bring Insurance Code claims, workers’ compensation claimants will actually have incentive to delay seeking resolution of disputes through the carefully crafted administrative dispute resolution procedures of the Act. As is demonstrated by the facts of this case, an employee’s delay in initiating the Act’s expedited dispute resolution procedures can generate both recovery of benefits under the Act and a separate, additional lawsuit for damages and delay in derogation of the Act’s carefully crafted dispute resolution procedures. Instead of encouraging claimants *444 to immediately seek resolution of their disputes by means of the legislatively mandated aids such as the ombudsman program and WCD-directed administrative procedures, allowing an Insurance Code cause of action would provide an incentive for employees to wait weeks or months to initiate the Act’s expedited dispute resolution procedures and then file suit for damages under the Insurance Code, as was done here.

Further, (c). At the time Ruttiger filed suit in this matter he had not reached maximum medical improvement, did not have an impairment rating from his doctors, and had not returned to work. Thus, as of the time he filed suit complaining of TMIC’s past delays, his workers’ compensation claim could not yet have been settled.

In sum, this Court held in 1987 that an injured worker was not limited to recovery under the Act, but could also recover under the Insurance Code. section 541.060.

B. Section 542.003

The jury charge also asked whether TMIC, with respect to a claim by an insured or beneficiary, failed “to adopt and implement reasonable standards for prompt investigation of claims arising under its policies.” Such action by an insurer is prohibited by § 409.022 (providing that when refusing to initiate benefits or when terminating benefits, the carrier must specify its grounds and a carrier commits an administrative violation if the carrier does not have reasonable grounds for refusing to pay benefits); id. § 415.002(a) (providing that a carrier commits an administrative violation for, among other actions, failing to process claims promptly and in a reasonable manner, failing to initiate benefits when due if a legitimate dispute does not exist as to the liability of the carrier, terminating or reducing benefits without substantiating evidence that the action is reasonable and authorized by law, or controverting a claim if the evidence clearly indicates liability).

We conclude, as we did with Marshall is in conflict with any of the foregoing, we overrule it.

C. Section 541.061

The trial court judgment also allowed Ruttiger to recover under section 541.061 of the Insurance Code, which provides:

Misrepresentation of Insurance Policy

It is an unfair method of competition or an unfair or deceptive act or practice in the business of insurance to misrepresent an insurance policy by:

(1) making an untrue statement of material fact;

(2) failing to state a material fact necessary to make other statements made not misleading, considering the circumstances under which the statements were made;

(3) making a statement in a manner that would mislead a reasonably prudent person to a false conclusion of a material fact....

TEX. INS.CODE § 541.061. TMIC asserts that Insurance Code section 541.060. We disagree.

Unlike Section 541.061 applies to the misrepresentation of an insurance policy, but because it does not evidence intent that it be applied in regard to settling claims, it is not at odds with the dispute resolution process of the workers’ compensation system.

Nevertheless, we agree with TMIC that there is legally insufficient evidence to support a finding that it misrepresented its policy. TMIC denied Ruttiger’s claim on the basis that he was not injured on the job. Ruttiger does not point to any untrue statement made by TMIC regarding the policy or any statement about the policy that misled him. The dispute between Ruttiger and TMIC was over whether Ruttiger’s claim was factually within the policy’s terms—whether he was injured on the job. And the parties’ BRC agreement did not resolve any issues regarding TMIC’s policy terms. It resolved whether Ruttiger was injured in the course of his employment with A & H. While we disagree with TMIC’s assertion that Ruttiger’s claim under section 541.061.

Because the provisions of section 541.061 that TMIC misrepresented its insurance policy, we reverse the court of appeals’ judgment affirming Ruttiger’s recovery on his claim under the Insurance Code.

IV. Deceptive Trade Practices Act

Ruttiger agrees that his DTPA claim as pled and submitted to the jury depended on the validity of his Insurance Code claim. Because we have determined that he cannot recover on his Insurance Code claim, we likewise hold that he cannot recover on his DTPA claim.

V. Good Faith and Fair Dealing

The trial court’s judgment provides that if Ruttiger’s Insurance Code and DTPA claims failed on appeal, he could elect to recover on his claim that TMIC breached its common law duty of good faith and fair dealing. The court of appeals did not address the issue, but it has been briefed and argued here, so we will. See TEX.R.APP. P. 53.4; Nat’l Union Fire Ins. Co. of Pittsburgh, PA v. CBI Indus., Inc., 907 S.W.2d 517, 520–22 (Tex.1995).

TMIC asserts, in part, that Ruttiger cannot recover for breach of the duty of good faith and fair dealing because the cause of action is no longer warranted given the provisions of the current Act.

In Id.

Aranda—and much more.15

In 748 S.W.2d at 212. The Joint Committee Report emphasized that one major deficiency of the process for delivering benefits was “[t]he system has no means to render fast decisions in disputes which require them.” Joint Committee Report, at 4. A brief review of the former dispute resolution system demonstrates the problems.

As outlined above, under the old law the first step in the administrative dispute resolution process was an informal pre-hearing conference where a record was not made and the result generally was a written recommendation of the pre-hearing officer that was sent to the IAB in Austin. Id.; 1 MONTFORD, at 6–33. Plus, there was no effective procedure for resolving disputes over medical care. 1 MONTFORD, at 4–27.

The lack of an immediate, binding dispute resolution process under the old law resulted in carriers, for the most part, having control over claims resolution. That control yielded greatly disparate bargaining positions between insurers and injured workers, and the IAB was considered to have had relatively little power to control the process. See Garcia, 893 S.W.2d at 512–13 (“The delay and cost of de novo review forced premature and inaccurate settlements.”).

The 1989 reforms were intended to reduce the costs to employers and provide greater benefits to injured employees in a more timely fashion. Achieving those goals required, among other changes, reducing the disparity of bargaining power between the employee and insurer, imposing controls over the carriers’ processing of claims, and controlling the ability of carriers to make arbitrary decisions about refusing or delaying payment. Those changes were accomplished by providing meaningful, binding administrative dispute resolution procedures, speeding up “the start-to-finish time for the entire comp dispute resolution process, as well as [facilitating] interlocutory payment of comp benefits pending final resolution.” 1 MONTFORD, at 6–28.

Some of the amendments relevant to the issue before us have been previously discussed, but nevertheless, we review them here because of their importance in giving context and perspective to this discussion. When compared to the old law, the Act provides a reduced amount of time for carriers to file a notice of dispute or start paying benefits. id. § 409.021. If a carrier on multiple occasions fails to pay benefits promptly as they accrue, except as authorized by the Act, the carrier is subject to an additional administrative violation and even revocation of its right to do business under the workers’ compensation statutes. Id. § 409.023(d).

Under the Act’s dispute resolution process, the BRC begins a process in which disputes proceed from one part of the process to the next until the dispute is resolved by agreement, final order or decision of the WCD, or judicial order. A BRC must be held within forty days of a request for one, or within twenty days if an expedited setting is needed. 413.055.

The Act addresses the disparity of bargaining power between the employee and the insurer, in part, by providing an Office of Injured Employee Counsel. § 408.005(c)(2). Those provisions limit a carrier’s ability to overreach during any dispute resolution proceedings or settlement negotiations with workers.

In sum, the Legislature has substantially remedied the deficiencies that led to this Court’s extending a cause of action under Arnold for breach of the duty of good faith and fair dealing to the workers’ compensation system. The current system (1) reduces the disparity of bargaining power between compensation insurers and employees; (2) removes insurers’ exclusive control over the processing of claims; (3) diminishes and in most instances negates the ability of insurers to make arbitrary decisions refusing or unreasonably delaying payment of valid claims; (4) provides employees information about, immediate *450 recourse to, and, through the ombudsman program, free assistance before the WCD with the claims and dispute resolution process; and (5) provides multiple remedies and penalties, including specific provisions for revocation of the carrier’s right to do business under the workers’ compensation laws of Texas if on multiple occasions it fails to pay benefits promptly and as they accrue.

The original creation of, continued existence of, and amendments to update and improve the workers’ compensation system are within the Legislative function of establishing public policy. See Aranda.

The essential question before us is not, as the dissent maintains, “whether the Legislature intended to abrogate entirely a common law bad faith remedy when it enacted the Workers’ Compensation Act.” 381 S.W.3d at 461 (Jefferson, C.J., dissenting). We do not believe it did. Rather, the question is to what extent the judiciary will respect the Legislature’s function of addressing the concerns and adjusting the rights of parties in the workers’ compensation system as part of its policy-making function. In reaching this conclusion it is important to keep in mind the fact that the workers’ compensation system is wholly a legislatively crafted entity. Its continued existence and nature depends on the Legislature renewing, reviewing, and amending it to meet the changing needs of Texas employees and employers.

The Garcia, 893 S.W.2d at 511–16 (discussing how through the 1989 amendments the Legislature sought to reduce delay and costs). It also discourages insurers from contesting suspect or questionable claims and medical treatments because of the possibility of unpredictable large damage awards if the carrier loses its contest, or even resolves a dispute as TMIC did with Ruttiger.

This case demonstrates how a cause of action for breach of the duty of good faith and fair dealing can hinder the prompt resolution of disputes through proper use of the Act’s dispute resolution provisions and increase costs to participants in the system. TMIC timely notified Ruttiger that it was disputing his claim, why it was doing so, and notified him of his right to a BRC. When Ruttiger finally requested a BRC to resolve the dispute, one was scheduled and held, the dispute was resolved, and TMIC began paying benefits. The way the dispute was resolved after Ruttiger initiated the dispute resolution process is the way the Act is designed to function. The disruptive factor was Ruttiger’s waiting three months to request a BRC. Such a delay is not what is contemplated by the statutes, and the time for which Ruttiger delayed in initiating the Act’s dispute resolution procedures is the basis for his claim for damages in this suit.

The issues underlying the Court’s decision in In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 461 (Tex.2008) (“[O]ur place in a government of separated powers requires us to consider also the priorities of the other branches of Texas government.”).

The Act effectively eliminates the need for a judicially imposed cause of action outside the administrative processes and other remedies in the Act. Recognizing and respecting the Legislature’s prime position in enacting, studying, analyzing, and reforming the system, and its efforts in having done that, we conclude that Aranda should be, and is, overruled.

VI. Response to the Dissent

A. The Common Law Aranda Claim

The dissent approaches the Aranda ‘s holding:

The question presented in this case is whether the Legislature intended to abrogate entirely a common law bad faith remedy when it enacted the Workers’ Compensation Act....


We must decide, then, whether there is “clear legislative intent,” Dealers Elec. Supply Co. v. Scoggins Constr. Co., 292 S.W.3d 650, 660 (Tex.2009), to extinguish entirely this settled common law remedy.

381 S.W.3d at 461–62 (Jefferson, C.J., dissenting). The dissent concludes that the Act does not reflect Legislative intent to do so, and we agree. There is no language *452 that TMIC argues shows an intent to abolish the duty of good faith and fair dealing, the dissent sees none, and neither do we. Further, there is simply no question about what the Legislature intended. Its intent is taken from what it enacted—limits on the cause of action. See Aranda action, we disagree that whether it did is the question that must be answered. As we have noted previously, the essential question is not whether the Legislature intended to abrogate the common law bad faith remedy. The question is to what extent the judiciary will respect the Legislature’s function of addressing the concerns and adjusting the rights of parties in the workers’ compensation system.

The dissent’s other approach is that 416.002 of the Act specifically recognize the common law cause of action for breach of the duty of good faith and fair dealing without abolishing it, thereby implicitly ratifying it or giving its existence the Legislature’s stamp of approval. See 381 S.W.3d at 459 (Jefferson, C.J., dissenting) (“Even after the 1989 overhaul, the Act’s express language makes plain the Legislature’s intent that common law bad faith claims remain available to litigants.”). In reaching its conclusion, the dissent inappropriately goes beyond the language of the Act.

When reading statutes, our goal is to ascertain and give effect to the Legislature’s intent. See In re Smith, 333 S.W.3d 582, 586 (Tex.2011).

The Act addresses the Aranda cause of action in two sections of Chapter 416:

Certain Causes of Action Precluded

An action taken by an insurance carrier under an order of the commissioner or recommendations of a benefit review officer under 410.033 may not be the basis of a cause of action against the insurance carrier for a breach of the duty of good faith and fair dealing.

TEX. LAB.CODE § 416.001.

Exemplary Damages

(a) In an action against an insurance carrier for a breach of the duty of good faith and fair dealing, recovery of exemplary damages is limited to the greater of:

(1) four times the amount of actual damages; or

(2) $250,000.

*453 (b) An action against a governmental entity or unit or an employee of a governmental entity or unit for a breach of the duty of good faith and fair dealing is governed by Chapters 101 and 104, Civil Practice and Remedies Code.

Id. Aranda action and its implicitly ratifying or approving the action.

The language of Tex. Lottery Comm’n, 325 S.W.3d at 635.

Even though the dissent does not maintain that the language of either Aranda cause of action does not mean the Legislature intended to do the opposite, that is, to implicitly ratify or approve it.

Moreover, the fact that language abolishing the Aranda action. But in the final analysis, either argument about legislative intent based on the committee substitute bill can fairly be described as speculative and inappropriate.

Further, legislative intent emanates from the Act as a whole, and not from one isolated portion. See Aranda action because of an absence of language either abolishing or approving it would turn logic *455 on its head when considered in context of the Act as a whole.16

In the final analysis, the Aranda-type suits in the workers’ compensation setting.17 If *456 the Legislature determines, in its role of managing the workers’ compensation system for the benefit of injured workers and employers, that such a cause of action is appropriate as part of the system, we have confidence that legislators will exercise their prerogative to explicitly provide one.

Finally, we disagree with the dissent’s statement that we are “replacing the Legislature’s judgment with [our] own.” 381 S.W.3d at 459 (Jefferson, C.J., dissenting). Contrary to the dissent’s assertion, our decision shows deference to and respect for the Legislature’s position—and judgment—as the body that created, monitors, and maintains equilibrium in the workers’ compensation system by its enactments.

B. The Insurance Code Claims

The dissent argues that because the Legislature recognized extra-contractual common law claims in chapter 416, “it did not intend to preclude all claims against carriers for proven misconduct” and that the Insurance Code provisions still apply to workers’ compensation insurers. 381 S.W.3d at 464 (Jefferson, C.J., dissenting). We agree that the new Act’s language does not purport to preclude all types of claims against workers’ compensation insurers. For example, 542.003 of the Insurance Code simply are not compatible with amended detailed procedural and substantive provisions of the new Act.

VII. Conclusion

The judgment of the court of appeals is reversed. We render judgment that Ruttiger take nothing.

Justice WILLETT filed a concurring opinion.

Chief Justice LEHRMANN joined.

Justice WILLETT, concurring.

I join the Court’s opinion but write separately on Part V to emphasize this overlooked truism: It is principally the judiciary’s role to define and delimit common-law causes of action. In our constitutional design, the judicial branch is a partner, but not a junior partner1—and shaping Texas common law is fundamentally a judicial prerogative.

Today the Court overrules Aranda still has a place, not whether the Legislature believes so.

Statutory abrogation is not the sole way to re-think a common-law cause of action. In determining the continued vitality of the bad-faith remedy in workers’ compensation cases, I would pivot on something simpler: this Court’s nonpareil role as arbiter of the common law. It is the duty of the judicial branch to declare what the common law is: “The law is not static; and the courts, whenever reason and equity demand, have been the primary instruments for changing the common law through a continual re-evaluation of common law concepts in light of current conditions.”6 This charge is indeed an ongoing one: “[T]he common law is not frozen or stagnant, but evolving, and it is the duty of this [C]ourt to recognize that evolution.”7 Accordingly, we are called upon to reevaluate common-law rules, giving deference to stare decisis when warranted, but departing when the prior rule no longer furthers the interests of efficiency, fairness, and legitimacy.8 As we noted 142 years ago, “When the reason of the rule fails, the rule itself should cease. Cessante ratione legis, cessat ipsa lex.9

This axiom is sufficient to resolve today’s case because, as the Court so ably details, the “reason” behind Aranda, we did so because of the “special trust relationship” between a carrier and an employee.10 This relationship does not exist in every contractual agreement, but we recognized it in the workers’ compensation context because of employees’ particular vulnerability. Under the pre–1989 comp *458 system, there was a tremendous disparity of bargaining power, leaving employees with little to no recourse against arbitrary payment decisions.11 Concerned with such inadequacies, we allowed a common-law remedy for bad faith to fill the gap.

A year later, the gap was made less gaping. Observers may dispute whether the Legislature’s 1989 overhaul eliminated the bargaining disparity between carriers and employees, but it is indisputable that the top-to-bottom reforms enacted then (and since) have lessened the concerns that animated Aranda ‘s cumulative extra-statutory remedy should now recede.

Otherwise, there is a very real possibility that the continued existence of bad-faith claims will subvert the Legislature’s meticulous soup-to-nuts system, one augmented by an immense regulatory and adjudicatory framework that, taken together, now regulates virtually every aspect of how a carrier handles a workers’ comp matter. In the past, this Court has been hesitant to extend common-law causes of action into fields where a pervasive regulatory scheme controls, specifically because of this potential for interference.12 We should exercise similar deference when considering whether to draw back an extra-statutory remedy in light of legislative changes.

The Legislature’s radical 1989 restructuring certainly made room for our 1988 Aranda landscape.

Our 2010 Waffle House decision is instructive. There, we considered whether the plaintiff could bring a common-law negligence claim against her employer in light of the TCHRA’s “unique set of substantive rules and procedures” governing sexual harassment.13 We answered that she could not after determining that the differences between the two causes of action—in procedure, and standards, and remedies—were “manifold.”14 Because of those differences, we rejected the common-law claim for fear of circumventing *459 the “meticulous legislative design.”15 We could apply the same analysis here because the inherently fuzzy nature of the bad-faith tort has a tendency to produce conflicting liability standards inconsistent with the Legislature’s statutory approach to carrier malfeasance and accountability.16 I think it unwise to invite these potential complications, particularly in an area so imbued with public policy trade-offs, and where the Legislature has specifically addressed our concerns over how comp claims are processed.

Aranda, a judicial gap-filler whose underlying rationale no longer exists.

Chief Justice LEHRMANN, dissenting.

Timothy Ruttiger allegedly sustained a work-related injury. Because of various complaints about how the Texas Mutual Insurance Company (TMIC) processed his workers’ compensation claims, Ruttiger sued under the common law and chapters 541 and 542 of the Insurance Code, alleging that TMIC breached its duty of good faith and fair dealing.

TMIC and its amici ask us to hold that the Texas Workers’ Compensation Act is the exclusive remedy for all work-related injuries, thus precluding Ruttiger’s suit. We have previously concluded that both the Insurance Code and common law claims are viable—indeed, that they complement the workers’ compensation system. Even after the 1989 overhaul, the Act’s express language makes plain the Legislature’s intent that common law bad faith claims remain available to litigants. As for Ruttiger’s Insurance Code claims, the Code’s language makes clear that they apply, and the Act’s exclusivity provision does not apply to insurance carriers. Far from having precluded such claims, then, the Legislature has continued to recognize actions like Ruttiger’s.

Today the Court holds that most of Ruttiger’s Insurance Code claims (and, as a result, his dependent DTPA claims) are no longer viable. The Court also eliminates Ruttiger’s common law good-faith-and-fair-dealing claim. The Court makes persuasive policy arguments to support its decision, replacing the Legislature’s judgment with its own. I would hold that both claims survived the Legislature’s 1989 workers’ compensation overhaul and would affirm the court of appeals’ judgment. Because the Court does otherwise, I respectfully dissent.

I. The Old Workers’ Compensation System

In 1987, we first considered whether a workers’ compensation claimant could sue a carrier who engaged in a deceptive trade practice. Id.

The next year, in Id. at 214. Expanding on this point, we emphasized that the workers’ compensation statute was exclusive only as to job-related injuries, which are separate from injuries suffered as the result of a carrier’s breach of duty:

Liability as a result of a carrier’s breach of the duty of good faith and fair dealing or intentional misconduct in the processing of a compensation claim is distinct from the liability for the injury arising in the course of employment. Injury from the carrier’s conduct arises out of the contractual relationship between the carrier and the employee and is sustained after the job-related injury.

Id. at 215.

II. The New Workers’ Compensation Act

The Legislature overhauled our workers’ compensation scheme in 1989. The Legislature examined the successes and failings of the previous system, commissioning a number of studies and reports to address what was driving the system’s high cost. Several of these studies suggested legislative displeasure with Marshall, suggesting that the Legislature “[e]liminate extra contractual liability resulting in treble damage suits under the Deceptive Trade Practices–Consumer Protection Act and the Unfair Claim Settlement Practices Act.” HOUSE SELECT INTERIM COMMITTEE ON WORKERS’ COMPENSATION INSURANCE, INTERIM REPORT TO THE 70TH *461 LEGISLATURE 41 (Jan. 1987).1

The first draft of the new Act adopted the Joint Select Committee’s recommendation that common law claims be precluded. The bill as introduced permitted an administrative penalty to be assessed against carriers for “malice or bad faith” in claims-processing, and it made clear that this penalty constituted “the employee’s exclusive remedy against the employer or carrier ” for such conduct. Tex. H.B. 1, 71st Leg., R.S., § 11.12 (1989) (emphasis added). However, the committee substitute removed that provision, opting instead for language that simply limited Aranda. Tex.C.S.H.B. 1, 71st Leg., R.S., §§ 10.41, 10.42 (1989). It was this limiting language that ultimately passed, with some changes, as part of the new Act. Texas Workers’ Compensation Act, 71st Leg., 2d C.S., ch. 1, 1989 Tex. Gen. Laws 1 (codified at TEX. LAB.CODE 401–19).2

III. The Common Law Claims

The Court’s analysis of common law claims can only properly be considered in light of Aranda and with deference to the Legislature’s express recognition, in chapter 416 of the Labor Code, that this avenue of relief endures. The Court asks whether the extra-contractual claims fit with the statutory scheme. This is the wrong inquiry entirely. The question presented in this case is whether the Legislature intended to abrogate entirely a common law bad faith remedy when it enacted the Workers’ Compensation Act. Given the existence of chapter 416, it is impossible to conclude that the Legislature had such an intent.

We have repeatedly addressed situations in which common law claims and statutory remedies seem to overlap, and we have embraced a framework to guide our analysis in such cases. The touchstone of this analysis, as in all statutory interpretation, is legislative intent. We start with the proposition that statutes abrogating common law causes of action are disfavored. Id.

*462 We must decide, then, whether there is “clear legislative intent,” Dealers Elec. Supply Co. v. Scoggins Constr. Co., 292 S.W.3d 650, 660 (Tex.2009), to extinguish entirely this settled common law remedy. As amended by the Workers’ Compensation Act, the Labor Code provides:

An action taken by an insurance carrier under an order of the commissioner or recommendations of a benefit review officer under 410.033 may not be the basis of a cause of action against the insurance carrier for a breach of the duty of good faith and fair dealing.

Aranda-type claims, rather than abolished them.4

The inquiry ends there. If the Legislature limited certain Aranda-type claims, it could not logically have also intended to eliminate all of them. The Act’s structure further supports this conclusion.

The exclusivity provision of the new Act provides that “[r]ecovery of workers’ compensation benefits is the exclusive remedy of an employee covered by workers’ compensation insurance coverage ... against the employer ... [for] a work-related injury sustained by the employee.” Aranda, 748 S.W.2d at 214 (“Injury from the carrier’s conduct arises out of the contractual relationship between the carrier and the employee and is sustained after the job-related injury.”).

The existence of administrative penalties that can be assessed against workers’ compensation carriers does not mandate the contrary. See TEX. LAB.CODE ch. 415 (creating administrative penalties for certain acts by employers, carriers, and other parties). The Insurance Code allows for substantially similar administrative penalties against insurers operating outside of the workers’ compensation system, see TEX. INS.CODE § 84.021 (providing for the imposition of administrative penalties for violations of the insurance code and other insurance laws), but we have never held the existence of those penalties precludes the claims at issue here when made against those insurers.5

As shown by the presence of chapter 416, not to mention the Act’s legislative history and the language of its exclusivity clause, the Legislature pointedly recognized the availability of claims outside of the Act. Therefore, we cannot legitimately conclude that the Legislature intended for the Act to be an exclusive remedy with regard to carriers. If the Act’s “comprehensive” administrative scheme had been intended to preclude the common law claims permitted in Aranda were seen as complementary. The 1989 Act, then, did not repudiate, but rather acknowledged, the viability of extra-contractual claims against workers’ compensation insurance carriers. This is enough to decide the case before us.

IV. The Insurance Code Claims

TMIC’s primary argument against the Insurance Code’s applicability to its conduct is the same argument it made with regard to the common law: that the workers’ compensation system is so comprehensive that all remedies outside of the Act *464 are necessarily excluded.6 This is unconvincing. In addition to the fact that the Act is not, by its terms, an exclusive remedy with respect to carriers, see Marshall today, the Insurance Code’s provisions still apply, and, as such, the Court’s preemption approach is without merit.7

*465 V. Conclusion

Whether allowing extra-contractual claims makes sense is a different question than whether the laws, as written, permit their pursuit. The Court correctly observes that the Act carefully balances competing interests. The Legislature struck that balance by acknowledging and limiting the common law claims the Court abolishes today. In doing so, the Court disrupts the statutory equilibrium and substitutes its judgment for the Legislature’s. The concurrence agrees that Aranda has coexisted with the “new” Act during the twenty-three years since its passage. Stare decisis does not interfere with the statutory scheme—overruling the case does. Because the Legislature has not made the Act exclusive with respect to extra-contractual claims, I would not eliminate Ruttiger’s claims and would affirm the court of appeals’ judgment. Because the Court does otherwise, I respectfully dissent.



In 2005, the Legislature abolished the Texas Workers’ Compensation Commission and transferred its functions to the Texas Department of Insurance, Workers’ Compensation Division. See Act of May 29, 2005, 70th Leg., R.A., ch. 265, § 8.001, 2005 Tex. Gen. Laws 469, 607–08. For ease of reference we will refer to the Division, or “WCD” instead of the Commission.


When TMIC received notice of Ruttiger’s claim, it was required to notify the WCD of the claim. TEX. LAB.CODE § 409.005. The WCD was then required to notify Ruttiger of the Act’s benefits and procedures:

Plain Language Information; Notification of Injured Employee

(a) The division shall develop information for public dissemination about the benefit process and the compensation procedures established under this chapter. The information must be written in plain language and must be available in English and Spanish.

(b) On receipt of a report [of injury], the division shall contact the affected employee by mail or by telephone and shall provide the information required under Subsection (a) to that employee, together with any other information that may be prepared by the office of injured employee counsel or the division for public dissemination that relates to the employee’s situation, such as information relating to back injuries or occupational diseases.

Id. § 409.013.


Ruttiger’s pleadings referenced article 21.21 provisions relevant to this matter were placed in Chapter 541. Further reference to Insurance Code provisions will be to the recodified designations.


Medical records obtained during lawsuit discovery revealed that Ruttiger had been diagnosed as having bilateral inguinal hernias on two different occasions before he began working for A & H. He denied knowing of the diagnoses and denied having hernias before he was injured on June 21, 2004.


Amicus briefs were submitted in support of TMIC’s position by Liberty Insurance Corporation, the American Insurance Association, and the Property Casualty Insurers Association of America.


Amicus briefs were submitted in support of Ruttiger’s position by the Texas Trial Lawyers’ Association, attorney Peter N. Rogers, and attorney Joe K. Longley.


TMIC asserts that in this case the benefit dispute agreement addressed whether Ruttiger sustained a compensable injury and had a disability, but it did not address medical benefits, specifically the surgery he received. TMIC claims Ruttiger could have presented, but did not, a dispute to the Commission at or before the January 2005 BRC and obtained a determination that surgery was necessary in July 2004. Ruttiger asserts that the benefit dispute agreement did not need to address medical benefits because the medical necessity of the surgery was not in dispute and any administrative option became moot when TMIC paid for Ruttiger’s medical treatment. Because the trial court had jurisdiction over Ruttiger’s claims for TMIC’s delay in paying income benefits and in light of our disposition of TMIC’s remaining issues, we need not determine whether the trial court lacked jurisdiction over Ruttiger’s claim for delayed surgery.


Ruttiger asserts that TMIC waived its position that the Insurance Code does not provide a legal basis for him to recover damages. The record reflects that TMIC objected to the jury charge on that basis and challenged the legal sufficiency of the evidence to support a judgment against it in the court of appeals. TMIC did not waive error.


Act of Apr. 25, 1957, 55th Leg., R.S., ch. 198, § 1, 1957 Tex. Gen. Laws 401.


The Senate representatives on the committee were Senators Bob Glasgow, Kent Caperton, Cyndi Krier, John Montford, and Frank Tejeda. The House representatives were Representatives Richard Smith, David Cain, Robert Early, Alex Moreno, and Rick Perry. Senator Glasgow and Representative Smith were co-chairs. A six member advisory panel assisted the committee.


For ease of reference the Act as amended will generally be referred to as the Act, or in some cases the amended Act; the law as it was before the 1989 amendments will be referred to as the old law or the former law.


The record does not reflect, and Ruttiger does not argue, that the WCD determined TMIC committed administrative violations by failing to process claims in a reasonable and prudent manner, see id. § 415.002(a)(2).


Ruttiger does not claim that the agreement he reached with TMIC at the BRC was a settlement. See TEX. LAB.CODE § 401.011(3) (defining “agreement” as the resolution by the parties of one or more issues regarding an injury, coverage, or compensability, but not a settlement).


TMIC argues that the Insurance Code does not provide for a private cause of action for a violation of this section. This is the first time TMIC has made this argument. It has not been preserved and we do not address it.


The factual situation underlying Id.

Section 410.033 of the current Act is entitled “Multiple Carriers” and provides:

(a) If there is a dispute as to which of two or more insurance carriers is liable for compensation for one or more compensable injuries, the commissioner may issue an interlocutory order directing each insurance carrier to pay a proportionate share of benefits due pending a final decision on liability. The proportionate share is computed by dividing the compensation due by the number of insurance carriers involved.

(b) On final determination of liability, an insurance carrier determined to be not liable for the payment of benefits is entitled to reimbursement for the share paid by the insurance carrier from any insurance carrier determined to be liable.

TEX. LAB.CODE § 410.033.


Because the dissent seeks legislative intent outside the words of the statute, it seems that in fairness to the issue it would consider other factors outside the enacted language, or, the non-enacted language on which it relies. But it does not. Other factors would counsel against the conclusion that by its silence the Legislature implicitly ratified or approved the Aranda action would have been diametrically opposed to the finding of the Legislature’s Joint Select Committee that the action was detrimental to the goals and interests that had to be balanced in amending the old law, and its recommendation that the action be abolished in favor of a statutory action. See Joint Committee Report, at 16.

Another factor not discussed by the dissent is that the existing cause of action was a common law action and legislatively abolishing or abrogating a common law cause of action is a course not lightly undertaken. Allowing abrogation of an injured worker’s common law cause of action against his employer in exchange for the adequate and more certain benefits provided by the Act—a cornerstone of workers’ compensation law in Texas—was held constitutional in 1916. See Aranda cause of action evidenced significant concern about and intent to control its disruptive effects—not intent to approve of or implicitly ratify it.


See, e.g., Whitten v. Am. Mut. Liab. Ins. Co., 468 F.Supp. 470, 475 (D.S.C.1977) (applying South Carolina law).


In re Allcat Claims Serv., L.P., 356 S.W.3d 455, 475 (Tex.2011) (Willett, J., concurring in part and dissenting in part).

* * *


748 S.W.2d 210 (Tex.1988).


See Middleton v. Tex. Power & Light Co., 108 Tex. 96, 185 S.W. 556, 560–61 (1916).


See Cash Am. Int’l Inc. v. Bennett, 35 S.W.3d 12, 16 (Tex.2000).


The separate writings here demonstrate—again—the perils of consulting legislative history. The Court criticizes the dissent for relying on changes made to a bill during the legislative process, calling it “illogical speculation.” Ante at 454. But one sentence later, the Court posits an alternate explanation for the same legislative history, declaring it “[m]ore logical speculation.” Id. Though the Court rightly dismisses both arguments as inappropriate, this is yet another reminder that legislative history, often turbid and thus prone to contrivance, serves as an ever-present judicial mercenary, embraced when helpful and ignored when not. As Justice Robert Jackson wryly observed, “It is a poor cause that cannot find some plausible support in legislative history.” Robert H. Jackson, Exxon Mobil Corp. v. Allapattah Servs., 545 U.S. 546, 568, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005) (repeating Judge Leventhal’s memorable phrase that rummaging around in legislative minutiae resembles “looking over a crowd and picking out your friends” (internal citations omitted)).


Whittlesey v. Miller, 572 S.W.2d 665, 668 (Tex.1978).


El Chico Corp. v. Poole, 732 S.W.2d 306, 310 (Tex.1987).


See Sw. Bell Tel. Co. v. Mitchell, 276 S.W.3d 443, 447 (Tex.2008).


Wright’s Adm’x v. Donnell, 34 Tex. 291, 306 (1870).


Aranda, 748 S.W.2d at 212.


Id. at 212–13.


See City of Midland v. O’Bryant, 18 S.W.3d 209, 216 (Tex.2000) (declining to impose a duty of good faith and fair dealing on the employment relationship because that “would tend to subvert those [statutes regulating the employment relationship] by allowing employees to make an end-run around the procedural requirements and specific remedies the existing statutes establish”).


See Waffle House, 313 S.W.3d at 803–04.


Id. at 805–07.


Id. at 805.


See Waffle House, 313 S.W.3d at 804 (noting that the workers’ compensation scheme incorporates a legislative attempt to balance the various interests and concerns of employees and employers).

* * *


Similarly, a report published after the passage of the new Act by Senator John Montford, the primary author of the overhaul legislation, made clear that the Legislature, in passing the new law, had considered Aranda dramatically shifted the relative negotiating positions between the claimant and carrier.”).


The language limiting Aranda was codified as chapter 416 of the Labor Code.


We have applied this framework repeatedly. For example, in Butnaru v. Ford Motor Co., 84 S.W.3d 198, 208 (Tex.2002) (same).


The House Committee that considered the Act referred to the provisions as “provid[ing] limitations in actions against a carrier for breach of duty.” HOUSE COMM. ON BUS. & COMMERCE, BILL ANALYSIS, S.B. 1, 71st Leg., 2d C.S. (1989) (emphasis added). Senator Montford was even more explicit, noting that the provisions were meant to “temper” Aranda:

In the very important Article 10 of the 1989 Workers’ Compensation Act are provisions ... provid[ing] procedures and implementing provisions assessing ... administrative penalt[ies] ... [and] temper[ing] the liability of a comp carrier for breach of good faith/fair dealing under Aranda....

2 MONTFORD, § 10.0 (footnotes omitted).


Indeed, each of the particular penalties that the Court says may be assessed against workers’ compensation carriers may also be assessed against other insurers. Insurers may be fined for any violation of the Insurance Code, TEX. INS.CODE § 84.021, and that Code specifically prohibits unfair settlement practices. Compare 415.002 (permitting administrative penalties for unfair claims-settlement practices), with TEX. INS.CODE § 541.060 (prohibiting unfair settlement practices).

Moreover, the existence of the penalty regime actually clarifies the Legislature’s intent not to broadly preclude claims under the common law and Insurance Code against workers’ compensation carriers. As the Court notes, 381 S.W.3d at 454, failure to comply with a Division order is grounds for an administrative penalty, and a claimant may bring suit to enforce such an order and may be awarded attorney’s fees and a twelve percent penalty. TEX. LAB.CODE § 410.208. It is in this lone context—where judicial enforcement is expressly permitted—that the Legislature by statute prohibited claimants from bringing common law claims. Id. § 416.001 (barring claims against a workers’ compensation carrier for breach of the duty of good faith and fair dealing if the claims are based on actions taken by the carrier pursuant to Division orders).


Though the Court credits this argument, I believe that TMIC failed to properly preserve this issue and that it therefore should not be considered in this Court. Texas Rule of Appellate Procedure 53.2(f) provides that the petition for review

must state concisely all issues or points presented for review. The statement of an issue or point will be treated as covering every subsidiary question that is fairly included. If the matter complained of originated in the trial court, it should have been preserved for appellate review in the trial court and assigned as error in the court of appeals.

See also TEX.R.APP. P. 33.1 (preserving issues for appellate review); id. R. 38.1(f) (requiring appellant to “state concisely all issues or points presented for review” in the court of appeals). TMIC, however, did not raise this argument in the court of appeals, instead challenging the judgment on the Insurance Code violations based only on the sufficiency of the evidence. Cf. Equistar Chems., L.P. v. Dresser–Rand Co., 240 S.W.3d 864, 868 (Tex.2007) (holding that the defendant’s no-evidence objections at the trial court did not preserve error as to its related legal arguments). Indeed, in the court of appeals, TMIC argued only that Ruttiger’s common law claims—and not his Insurance Code claims—were not legally cognizable. TMIC’s arguments about the unavailability of remedies under the Insurance Code were raised for the first time on appeal in its Reply Brief in Support of the Petition for Review. As such, they do not meet the requirements of Rule 53.2(f). See TEX.R.APP. P. 53.2(f). The Court holds that TMIC’s legal sufficiency challenge preserved error on this point (although, inexplicably, the Court holds that error was not preserved as to another of TMIC’s Insurance Code claims). If that is enough, there is little that a legal sufficiency challenge will not preserve. For the sake of argument, I presume the issue is properly before us.


TMIC additionally argues that Ruttiger’s claims are precluded by 265 S.W.3d 651. Finally, I agree with this Court that Ruttiger exhausted his administrative remedies, and the trial court had jurisdiction over this suit.

End of Document