                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                    November 14, 2006

                        _______________________                Charles R. Fulbruge III
                                                                       Clerk
                              No. 06-40541
                            Summary Calendar
                        _______________________


                       LARRY J. SYNOGROUND, JR.,

                            Plaintiff - Counter Claimant - Appellant,

                                  versus

                     GREGORY LOUIS MORVAN, ET AL.,

                                                                Defendants,

                          GREGORY LOUIS MORVAN,

                                                       Defendant-Appellee

                        HIGHLANDS INSURANCE CO.,

                Intervenor Defendant - Counter Defendant - Appellee


          On Appeal from the United States District Court
                 for the Eastern District of Texas
                       Docket No. 2:03-CV-68


Before JONES, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit
Judges.

PER CURIAM:*

           Appellant Larry Synoground appeals the district court’s

grant of summary judgment to Appellee Gregory Morvan.              He argues

that the district court erred in holding that the exclusive remedy

provision of the Texas Workers’ Compensation Act bars his tort case


     *
            Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
against Morvan.    Synoground also challenges the district court’s

conclusion that his acceptance of workers’ compensation benefits

barred his suit against Morvan. Because Synoground’s collection of

workers’ compensation benefits precludes him from maintaining an

action at common law for damages, the district court’s grant of

summary judgment is AFFIRMED.

                            I.   BACKGROUND

            Synoground was injured while riding as a passenger in a

vehicle driven by his co-worker, Appellee Gregory Morvan.        Both

Synoground and Morvan were employees of Key Energy Services, and

both were traveling away from the work site to eat lunch.      Morvan

allegedly caused the car to collide with another vehicle, severely

injuring Synoground.   Synoground subsequently claimed and accepted

workers’ compensation benefits from Key Energy, but he then brought

a common law tort suit against Morvan.      The district court granted

summary judgment to Morvan because the exclusive remedy provision

of the Texas Workers’ Compensation Act prevented Synoground from

pursuing his tort action and because Morvan, like Synoground, was

in the course and scope of his employment at the time of the

accident.    Synoground appeals.

                           II.     DISCUSSION

            An employee who claims and collects workers’ compensation

benefits is “precluded from maintaining an action at common law

against his employer or fellow employees.”      Berry v. Gregg Indus.


                                     2
Servs., Inc., 907 S.W.2d 4, 5 (Tex. App. 1994); see also Moore v.

Means, 549 S.W.2d 417 (Tex. Civ. App. 1977) (“We are of the view

that appellants, by proceeding to claim and collect benefits

provided under workmens’ compensation policy of insurance provided

by the employer . . . are as a matter of law precluded from

maintaining an action at common law for damages . . . against a

fellow employee.”) (quoting Heibel v. Bermann, 407 S.W.2d 945, 946

(Tex. Civ. App. 1966)); Jones v. Jeffreys, 244 S.W.2d 924, 926

(Tex. Civ. App. 1951).       Berry is squarely on point.        The plaintiff

was injured while returning from a lunch break and riding in the

passenger’s seat of a vehicle driven by his co-employee.                     907

S.W.2d at 5.      After the plaintiff claimed workers’ compensation

benefits, he sued his co-worker who was driving the vehicle.                 The

Texas court of appeals held that the plaintiff had “waived his

right to proceed at common law for injuries” because he had

collected and claimed workers’ compensation benefits.               Id.

            Synoground’s acceptance of workers’ compensation benefits

establishes that both he and Morvan were acting within the course

and scope of their employment at the time of the accident.                   See

TEX. LAB. CODE ANN. §§ 406.031, 401.011(12).        To avoid the preclusive

effect of the Texas Workers’ Compensation Act,1 however, Synoground

now argues that Morvan acted outside the course and scope of his


      1
            The Act states that the “[r]ecovery of workers’ compensation benefits
is the exclusive remedy of an employee . . . against the employer or an agent or
employee of the employer for the death or work-related injury sustained by the
employee.” TEX. LAB. CODE ANN. § 408.001(a).

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employment, even though both he and Morvan were engaged in the same

conduct when the accident occurred.           See Darensburg v. Tobey,

887 S.W.2d 84, 87 (Tex. App. 1994).          We agree with the district

court that Texas law prevents his assertion of these inconsistent

positions because his collection of workers’ compensation benefits

precludes   his   common   law   action   against   Morvan.    See   Moore,

549 S.W.2d at 418-19.

            Accordingly,   the    district   court’s   grant   of    summary

judgment is AFFIRMED.




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