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At a Glance:
Title:
Berrelez v. Mesquite Logistics USA, Inc.
Date:
August 15, 2018
Citation:
562 S.W.3d 69
Status:
Published Opinion

Berrelez v. Mesquite Logistics USA, Inc.

Court of Appeals of Texas, San Antonio.

Yolanda Jaime BERRELEZ, Appellant

v.

MESQUITE LOGISTICS USA, INC., Appellee

No. 04-17-00235-CV

|

Delivered and Filed: August 15, 2018

*70 From the 293rd Judicial District Court, Dimmit County, Texas, Trial Court No. 14-10-12408-DCV, Honorable Ron Carr, Judge Presiding1

Attorneys & Firms

APPELLANT ATTORNEY: Mark Anthony Sanchez, Sanchez & Wilson, PLLC, 6243 IH-10 West, Suite 1025, San Antonio, TX 78201.

APPELLEE ATTORNEY: Christopher J. Ameel, Attorney at Law, PLLC, P.O. Box 5624, Austin, TX 78763.

Sitting: Rebeca C. Martinez, Justice

OPINION

Opinion by: Marialyn Barnard, Justice

*71 Appellant Yolanda Jaime Berrelez appeals from the trial court’s order granting appellee Mesquite Logistics USA, Inc.’s motion to dismiss based on Berrelez’s failure to exhaust her administrative remedies under the Texas Workers’ Compensation Act (“the Act”). On appeal, Berrelez contends she was not required to exhaust administrative remedies because her claims are subject to the “personal animosity” exception in section 406.032(1)(C) of the Act, and therefore, she was outside the course and scope of her employment at the time of her injury. We affirm the order of dismissal.

BACKGROUND

Berrelez was employed by Mesquite Logistics as a housekeeper at Mesquite Lodge. According to Berrelez, Mesquite Lodge provides housing for oil field workers. Berrelez claims her duties as housekeeper included cleaning rooms, removing trash, and providing clean linens and bedding for the guests. One day, when Berrelez was on duty, a Mesquite Lodge guest, Manuel Hugo Mascorro, sexually assaulted her. Mascorro ultimately pled guilty to indecent exposure.

After the sexual assault, Mesquite Logistics, a subscriber to workers’ compensation under the Act, submitted a workers’ compensation claim to its insurance carrier. The carrier electronically filed an “Employer’s First Report of Injury” with the Texas Department of Insurance, Division of Workers’ Compensation (“the DWC”), reporting a “mental trauma injury” sustained by Berrelez. The DWC assigned the matter a claim number. An adjustor with the insurance carrier contacted Berrelez by letter, asking that she contact the carrier to discuss the workers’ compensation claim. The carrier determined Berrelez had a compensable injury for mental trauma and set medical reserves of $2,000.00.

Berrelez resigned from Mesquite Logistics and never contacted the insurance carrier. Rather, counsel for Berrelez sent a demand letter to Mesquite Logistics. Thereafter, Berrelez filed suit against Mesquite Logistics and Mascorro. As to Mesquite Logistics, Berrelez asserted a premises liability claim, alleging Mesquite Logistics “had actual or constructive knowledge that the premises were unsafe, that these conditions posed an unreasonable risk, and that it did not exercise reasonable care to reduce or eliminate the risk of harm, and that such failure proximately caused injuries to Berrelez who was, then and there, an invitee on the premises.” Berrelez also asserted Mesquite Logistics committed numerous acts of gross negligence. As is pertinent to this appeal, Berrelez alleged in her live pleading that she was not in the course and scope of her employment at the time of the assault. She alleged her injuries were the result of an intentional act by Mascorro, who acted upon personal reasons that were not based on Berrelez’s status as an employee of Mesquite Logistics.

Mesquite Logistics ultimately filed a motion to dismiss Berrelez’s suit based on the *72 exclusive remedy provision of the Act and Berrelez’s failure to exhaust her administrative remedies thereunder. Berrelez responded, arguing her claims were “excepted” from the Act pursuant to section 406.032(1)(C), which provides an insurance carrier is not liable for compensation if the employee’s injuries were the result of an act of a third person who intended to injure the employee for personal reasons that were not directed at the employee as an employee or because of her employment. See Nasser v. Sec. Ins. Co., 724 S.W.2d 17, 18 (Tex. 1987).

After a hearing, the trial court granted the motion to dismiss, finding Berrelez had not exhausted her administrative remedies under the Act and her claims were barred by the Act’s exclusive remedy provision. Thereafter, the trial court severed Berrelez’s claim against Mascorro, creating a final, appealable judgment with regard to the order of dismissal in favor of Mesquite Logistics. Berrelez then perfected this appeal.

ANALYSIS

On appeal, Berrelez contends the trial court erred in dismissing her suit against Mesquite Logistics. Relying on the “personal animosity” exception, she claims it was unnecessary for her to exhaust her administrative remedies because she was not in the course and scope of her employment at the time of the assault. Thus, she argues her claims are “exempted” from the Act. Mesquite disagrees, arguing that whether Berrelez was in the course and scope of her employment at the time of the assault was an issue within the exclusive province of the DWC, mandating that she first exhaust her administrative remedies prior to filing suit.

Standard of Review

Whether a trial court has subject matter jurisdiction, including the issue of exhaustion of administrative remedies, is a question of law. Miranda, 133 S.W.3d at 228.

When, as here, a motion to dismiss based on an absence of jurisdiction (a plea to the jurisdiction) challenges the pleadings, we must determine whether the pleader has alleged facts that affirmatively demonstrate the court’s jurisdiction to hear the cause. See Miranda, 133 S.W.3d at 227

Application

In her First Amended Petition, Berrelez affirmatively pled she was not in the course and scope of her employment at the time of the attack. She argues she was not in the course and scope of her employment for purposes of the Act because the assault falls within the “personal animosity” exception in section 406.032(1)(C) of the Act. See TEX. LAB. CODE ANN. § 406.032(1)(C). In its motion to dismiss, Mesquite Logistics alleged Berrelez was in the course and scope of her employment—exception or not—and she was therefore required to exhaust her administrative remedies under the Act prior to filing suit in district court. Thus, the issue before this court is whether an employee who claims an exception under section 406.032 of the Act must first exhaust her administrative remedies prior to filing suit.

When the Texas Legislature creates an administrative agency, it may grant that agency the initial authority to resolve disputes within the agency’s regulatory domain. Essenburg v. Dallas Cnty., 988 S.W.2d 188, 189 (Tex. 1998) (per curiam) (holding that “[A] plaintiff’s failure to exhaust administrative remedies may deprive courts of subject matter jurisdiction in the dispute.”) ).

Requiring a party to exhaust her administrative remedies prior to filing suit does not deprive her of any legal rights. Tex. Water Comm’n v. Dellana, 849 S.W.2d 808, 810 (Tex. 1993); Ronald L. Beal, TEXAS ADMINISTRATIVE PRACTICE AND PROCEDURE, § 5.5.5, at 5–34 (2015) (stating “The purpose of the [primary-jurisdiction] doctrine is to assure that the agency will not be bypassed on what is specifically committed to it; the district court will remain open after the agency has acted.”) ).

The DWC has exclusive jurisdiction to determine compensability because the Act vests the power to determine whether a *74 claimant is entitled to workers’ compensation benefits solely in the DWC, subject to judicial review. TEX. LAB. CODE ANN. § 401.011(10).

In this case, the parties dispute whether Berrelez was in the course and scope of her employment at the time of the assault. As set out above, the determination of whether an employee was in the course and scope of her employment at the time of the alleged injury is a matter within the initial, exclusive jurisdiction of the DWC. See Essenburg, 988 S.W.2d at 189.

Berrelez contends she was not in the course and scope of her employment at the time of the assault—and therefore not required to exhaust administrative remedies before the DWC—based on the personal animosity exception, arguing applicability of the exception removes her claims from the Act. Section 406.032 of the Act provides that an insurance carrier is not liable for compensation if, among other things, the employee’s injury “arose out of an act of a third person intended to injure the employee because of a personal reason and not directed at the employee as an employee or because of the employment[.]” section 406.032, including the personal animosity exception, does not remove a claim from the jurisdiction of the DWC and its exclusive right, in the first instance, to determine whether an employee was in the course and scope of employment at the time of the alleged injury. In sum, we hold Berrelez had to exhaust her administrative remedies under the Act before filing suit in district court. We therefore overrule her appellate complaints.

CONCLUSION

Based on the foregoing, we hold the trial court did not err in dismissing Berrelez’s claims based on her failure to exhaust her administrative remedies under the Act. Berrelez’s failure to exhaust her administrative remedies deprived the trial court of subject matter jurisdiction, mandating dismissal of Berrelez’s claims against Mesquite Logistics. Accordingly, we affirm the trial court’s order of dismissal.

Footnotes

1

The Honorable Cynthia Muniz is the presiding judge of the 293rd Judicial District Court, Dimmit County, Texas. The order that is the subject of this appeal was signed by the Honorable Ron Carr, Senior Appellate Judge, sitting by assignment.

2

The Act also provides “exceptions” if the employee was intoxicated, the injury was caused by the employee’s willful attempt to injure himself or unlawfully injure another, arose out of voluntary participation in an off-duty event if that was not part of work-related duties, or arose out of an act of God. Id. § 406.032(2).

End of Document
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