Robles v. Mount Franklin Food, L.L.C.

591 S.W.3d 158

Jesse ROBLES, Appellant,

v.MOUNT FRANKLIN FOOD, L.L.C., d/b/a Azar Nut Company, Appellee.

No. 08-18-00170-CV

Court of Appeals of Texas, El Paso.

August 14, 2019

ATTORNEY FOR APPELLANT: Jeffrey B. Pownell, Scherr & Legate, PLLC, 109 N. Oregon, 12th Floor, El Paso, TX 79901.

ATTORNEY FOR APPELLEE: Ken Slavin, Kemp Smith, 221 N. Kansas, Suite 1700, El Paso, TX 79901.

Before McClure, C.J., Rodriguez, and Palafox, JJ.

OPINION

ANN CRAWFORD McCLURE, Chief Justice A mishap in an industrial workplace injured Jesse Robles. His regular employer, Southwest Staffing, had sent him as a temporary worker to Mount Franklin Food, LLC, that does business as Azar Nut Company (hereinafter "Azar Nut"). It was an Azar Nut employee that allegedly caused the industrial accident resulting in Robles's injury. Southwest Staffing's workers' compensation carrier accepted Robles's claim and paid him medical and indemnity benefits. Robles then sued Azar Nut, who prevailed on the trial court to dismiss the suit based on the exclusive remedy provisions of the Texas Workers' Compensation Act. We affirm that decision.

BACKGROUND

Azar Nut runs a food processing plant. It has its own employees, but apparently needs temporary help. So, it turned to Southwest Staffing who provides temporary workers under a contract that specifies the terms of that arrangement. Robles was such a temporary worker. While performing his job on April 2, 2015, he was injured when a regular Azar Nut employee, Alejandro Galvez, misloaded a large bag of nuts using a forklift. A hook apparatus fell on Robles injuring him. He pursued two avenues of relief. First, he filed a workers' compensation claim with Texas Mutual Insurance Company under an insurance policy secured by Southwest Staffing. Second, he filed a lawsuit against both Azar Nut and Galvez. That suit alleges that Galvez was negligent in operating the forklift. It also alleged the Azar Nut, through its employees, agents, contractors and representative was negligent in various ways, some specific to the use of the forklift, and some more general, such as failures to warn, inspect, train, supervise, and enforce safety regulations. The suit also alleged Azar Nut was negligent in hiring Galvez, and in entrusting a forklift to him.

Azar Nut and Galvez answered, asserting as an affirmative defense that Robles's claim was barred by the exclusive remedy provision in the Texas Workers' Compensation Act ("TWCA"). TEX.LAB.CODE ANN. § 408.001(a). Through an amended petition, Robles dropped Galvez as a party and asserted claims solely against Azar Nut.

Azar Nut then filed the pleading that leads to this appeal. In what was labeled its "Plea to the Jurisdiction and Motion to Dismiss or in the Alternative Motion to Abate" Azar Nut argued that Robles's sole remedy was the recovery of benefits under Southwest Staffing's workers' compensation policy. The motion was premised on Section 406.034 of the Labor Code that provides:

For workers' compensation insurance purposes, if a temporary employment service elects to obtain workers' compensation insurance, the client of the temporary employment service and the temporary employment service are subject to Sections 406.034 and 408.001.

TEX.LAB.CODE ANN. § 93.004(b). In turn, Section 408.001 provides that workers' compensation benefits are an employee's exclusive remedy:

Recovery 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.

Id. at § 408.001(a).¹

Azar Nut's motion was supported by the affidavit of its human resource officer who swore that Southwest Staffing assigns "temporary employees to work temporary employment positions" at Azar Nut per an agreement between the two. Further, Jesse Robles was such a temporary employee on the date he was injured. The motion was also supported by an affidavit of a senior manager from Texas Mutual Insurance Company who provides workers' compensation coverage to Southwest Staffing. That affidavit proved up and attached the Southwest Staffing's workers' compensation insurance policy in effect on the date of the accident. That policy also included "Alternate Employer Endorsement" that named Azar Nut as an insured.² The affidavit also documents that Robles actually filed a claim under the workers' compensation policy and successfully collected medical and income benefits. Robles filed a response raising several issues that we discuss below. The trial court granted Azar Nut's motion and dismissed the case.

PLEA TO THE JURISDICTION OR SUMMARY JUDGMENT?

Robles's first issue on appeal complains that the trial court erred in granting a plea to the jurisdiction/motion to dismiss when Azar Nut was actually advancing an affirmative defense. Robles reasons that affirmative defenses might be argued in a motion for summary judgment under Rule 166a(b) but not through a plea to the jurisdiction or motion to dismiss. He also urges this Court not to alternatively consider the motion and response below as a de facto summary judgment and review the case under the summary judgment standard.

We agree with Robles that the defense asserted here should have been raised pretrial through a motion for summary judgment. The exclusive remedy provision under the Labor Code provides an affirmative defense. Reveles v. OEP Holdings, LLC , 574 S.W.3d 34, 37 (Tex.App.--El Paso 2018, no pet.) ("The exclusive remedy provision is an affirmative defense that protects employers from certain common-law claims of their employees including negligence claims."); Hand & Wrist Ctr. of Houston, P.A. v. SGS Control Services, Inc. , 409 S.W.3d 743, 753 (Tex.App.--Houston [1st Dist.] 2013, no pet.) ; Wesby v. Act Pipe & Supply, Inc. , 199 S.W.3d 614, 617 (Tex.App.--Dallas 2006, no pet.) ; Morales v. Martin Resources, Inc. , 183 S.W.3d 469, 471 (Tex.App.--Eastland 2005, no pet.) ; Pierce v. Holiday , 155 S.W.3d 676, 678 (Tex.App.--Texarkana 2005, no pet.) ; see also Port Elevator-Brownsville v. Casados , 358 S.W.3d 238, 240 (Tex. 2012) ("Port Elevator raised the affirmative defense that workers' compensation was the plaintiffs' exclusive remedy."). Affirmative defenses should be raised through a motion for summary judgment or proven at trial. See Texas Underground, Inc. v. Texas Workforce Commn. , 335 S.W.3d 670, 676 (Tex.App.--Dallas 2011, no pet.) (so stating as to limitations defense); Briggs v. Toyota Mfg. of Texas , 337 S.W.3d 275, 281 (Tex.App.--San Antonio 2010, no pet.) (so stated as to exclusive remedy defense); In re D.K.M. , 242 S.W.3d 863, 865 (Tex.App.--Austin 2007, no pet.) (so stated as to limitations defense).

Texas has a detailed rule that governs summary judgment procedure. TEX.R.CIV.P. 166a. A body of law has interpreted and explained the various provisions of that rule. Lacking a similarly detailed rule for pleas to the jurisdiction, we rely on a different body of law to govern such pleas. See e.g. Texas Dept. of Parks and Wildlife v. Miranda , 133 S.W.3d 217, 223 (Tex. 2004). Those cases usually arise in the context of a governmental entity asserting immunity or a party asserting the failure to exhaust administrative remedies. See e.g. Texas Dept. of Crim. Justice v. Flores , 555 S.W.3d 656, 661 (Tex.App.--El Paso 2018, no pet.) (immunity); Southwest Convenience Stores, LLC v. Mora , 560 S.W.3d 392, 399 (Tex.App.--El Paso 2018, no pet.) (failure to exhaust). And while a plea to the jurisdiction "generally mirrors" a summary judgment, Miranda , 133 S.W.3d at 228, it is not helpful to confuse the two. Accordingly, we agree with the San Antonio Court of Appeals that pursuing the exclusive remedy defense through a motion to dismiss "is problematic and not to be encouraged[.]" Briggs , 337 S.W.3d at 281. But also like that same court, and for much the same reasons, we do not find that the caption on the pleading here should lead to a reversal.

First, Robles never complained below that the plea to the jurisdiction/motion to dismiss was an improper procedural vehicle to raise the exclusivity bar. We generally require as a matter of error preservation that parties first raise their complaints to the trial court. TEX.R.APP.P. 33. Second, Azar Nut did not gain some procedural advantage by using the plea to the jurisdiction/motion to dismiss as opposed to a motion for summary judgement. That is, it did not attempt to set the motion on less than twenty-one days' notice or avoid the evidentiary burdens attendant to summary judgments proofs.³ Finally, we have an obligation to look to the substance of a motion and may construe a motion to dismiss as a summary judgment. See TEX.R.CIV.P. 71 ("When a party has mistakenly designated any plea or pleading, the court, if justice so requires, shall treat the plea or pleading as if it had been properly designated."); Pipes v. Hemingway , 358 S.W.3d 438, 446-47 (Tex.App.--Dallas 2012, no pet.) (treating dismissal motion as a summary judgment), disp. on merits , No. 05-13-00428-CV, 2014 WL 1477735 (Tex.App.--Dallas Apr. 14, 2014, pet. denied) (mem.op.); Briggs , 337 S.W.3d at 281 (reviewing motion to dismiss based on exclusive remedy defense as summary judgment motion) Martin v. Dosohs I, Ltd., Inc. , 2 S.W.3d 350, 353 (Tex.App.--San Antonio 1999, pet. denied) (treating plea in abatement as a plea in bar); Walker v. Sharpe , 807 S.W.2d 442, 446-47 & n.2 (Tex.App.--Corpus Christi 1991, no writ) (affirmative defense of res judicata improperly raised in plea in abatement or a plea to the jurisdiction treated as a plea in bar); Robinson v. Buckner Park, Inc. , 547 S.W.2d 60, 61 n.1 (Tex.Civ.App.--Dallas 1977, writ ref'd n.r.e.) (treating motion for dismissal as summary judgment); Cuba v. Williams , No. 01-18-00122-CV, 2019 WL 1716061, at *3-4 (Tex.App.--Houston [1st Dist.] Apr. 18, 2019, no pet. h.) (mem.op.)(treating motion to show...