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Boutte v. Alltrans Port Services, Inc.
October 14, 2009
Unpublished Opinion

Boutte v. Alltrans Port Services, Inc.

United States District Court, S.D. Texas, Houston Division.

Arthur BOUTTE, Plaintiff,


ALLTRANS PORT SERVICES, INC., et al, Defendants.

Civil Action No. H-09-2771


Signed 10/14/2009

Attorneys & Firms

Charles Henry Peckham, Peckham PLLC, Houston, TX, John Gerard Werner, Reaud Morgan and Quinn, Beaumont, TX, for Plaintiff.

Anthony Lee Icenogle, Icenogle & Sullivan, L.L.P., Austin, TX, Robert L. Harris, Shannon Gracey Ratliff & Miller LLP, Dallas, TX, for Defendants.


Kenneth M. Hoyt, United States District Judge


*1 Before the Court is the plaintiff’s, Arthur Boutte, motion for partial remand and severance (Docket Entry No. 5) and the defendants’, Alltrans Port Service, Inc. and Texas Best Staff Leasing, Inc. (collectively, the “defendants”), response (Docket Entry No. 8). After having reviewed the motion, response, pleadings and the applicable law, the Court determines that the motion should be DENIED.


On or about October 15, 2008, the plaintiff was allegedly injured while conducting an inventory on pipes at the Alltrans location. According to the plaintiff, he was required to stand on stacks of pipe while performing his inventory count. The pipes began to move, causing the plaintiff to lose his balance and fall. The plaintiff allegedly fell on his buttocks and back, as the pipes rolled, causing damage to discs in his back. The alleged injuries were sufficiently severe as to require surgery.

The plaintiff contends that the defendants were negligent by failing to provide a safe work-site and workplace. Also, the plaintiff asserts the defendants failed to provide safety equipment, such as a platform. Finally, the plaintiff argues, the defendants failed to provide safety training, required that the plaintiff engage in unsafe working practices, and failed to secure the pipe in a manner that would prevent it from moving.


On or about August 26, 2009, the defendants filed a Notice of Removal pursuant to 28 U.S.C. §§ 1331, 1441 and 1446. The defendants assert that removal was appropriate because one of the two claims asserted by the plaintiff against the defendants is preempted by the Employee Retirement Income Security Act (“ERISA”). See 29 U.S.C. § 1001 et seq. The defendants make this assertion in the face of the plaintiff’s allegation that his negligence claim arises under the state’s workmen’s compensation laws.

The plaintiff’s motion for remand is presented as a motion for partial remand. In this regard, the plaintiff argues that his nonsubscriber negligence claim against the defendants arises under the Texas Workers’ Compensation Act (“TWCA”) while his claim for failure to pay medical insurance benefits may arguably be governed by ERISA. Hence, he proposes that the Court remand only that portion of his case which arises under the TWCA and over which removal is prohibited in accordance with 28 U.S.C. § 1445(c).


Section 1445(c) provides that “[a] civil action in any State court arising under the workmen’s compensation laws of any such State may not be removed to any district court of the United States.” 28 U.S.C. § 1445(c) (emphasis added). The Fifth Circuit has interpreted the phrase “arising under” in the context of § 1445(c) to have the same meaning as it has in 28 U.S.C. § 1331. 931 F.2d 1086, 1092 (5th Cir. 1991). Specifically, it has reasoned that in the context of § 1331, “ ‘[a] suit arises under the law that creates the cause of action.’ ” Jones, 931 F.2d at 1092 (quoting Lowe v. Ingalls Shipbuilding, 723 F.2d 1173, 1178 (5th Cir. 1984) (internal citations omitted)). Likewise, “for the purposes of § 1445(c), a cause of action arises under a state’s workers’ compensation laws if the cause of action is created by the workers’ compensation statute.” Eurine v. Wyatt Cafeterias, Inc., No. 3-91-0408, 1991 WL 207468, at *1 (N.D. Tex. Aug. 21, 1991).

*2 With regard to the plaintiff’s negligence cause of action against her nonsubscribing employers, the TWCA provides “that in an action against a nonsubscribing employer for personal injuries or death sustained by an employee, the employer may not rely upon certain common law defenses, and the employee must prove negligence.” Pyle v. Beverly Enterprises-Texas, Inc., 826 F. Supp. 206, 209 (N.D. Tex. 1993) (internal citation omitted); see also TEX. LAB. CODE § 406.033(a). “[T]he fact that the TWCA deprives employers of certain defenses to negligence claims does not mean that claims by employees against nonsubscribing employers are brought pursuant to the TWCA.” Pyle, 826 F. Supp. at 209 (citing Eurine, at *2) (“A cause of action does not arise under workers’ compensation laws merely because the workers’ compensation statute deprives the defendant of certain defenses to the cause of action.”). In fact, liability for common law claims, such as the plaintiff’s nonsubscriber negligence claim, predates the enactment of the first workers’ compensation statute in Texas. Eurine, at *2; see also 38 F.3d 776, 786 (5th Cir. 1994).

Here, it is undisputed that the defendants are not subscribers to the TWCA, but instead, have chosen to provide occupational accident insurance for their employees pursuant to a plan governed by ERISA. To this end, the “Occupational Accident Coverage” portion of the Employee Handbook states: “If you are injured on the job, Alt-Source and your work-site employer have provided occupational accident insurance coverage rather than worker’s compensation insurance. You are not eligible to receive worker’s compensation benefits under the Texas Workers’ Compensation Act, however, as we provide other benefits to injured workers.”

In Texas, an employer is not required to provide workers’ compensation insurance. See TEX. LAB. CODE § 406.002. Hence, it cannot be said that the defendants purchased and maintained occupational accident insurance for the sole purpose of complying with the TWCA. Thus, when applying the “arising under” definition to the plaintiff’s nonsubscriber negligence cause of action, the Court is not convinced that such a claim arises under the workers’ compensation laws of Texas within the meaning of § 1445(c) so as to preclude removal. Because it is undisputed that the defendants’ plan is an ERISA plan and, therefore, federal jurisdiction attaches, the Court will exercise supplemental jurisdiction over any non-related claims pursuant to 28 U.S.C. § 1367(a).

It is ORDERED that the plaintiff’s motion for partial remand is DENIED.

End of Document