Petition for Writ of Mandamus Denied and Memorandum Opinion filed January 26,
2012.




                                           In The

                       Fourteenth Court of Appeals
                                       ____________

                                   NO. 14-11-01011-CV
                                     ____________

                        IN RE AMF INCORPORATED, Relator


                              ORIGINAL PROCEEDING
                                WRIT OF MANDAMUS
                                   11th District Court
                                  Harris County, Texas
                           Trial Court Cause No. 2005-49278J


                      MEMORANDUM                      OPINION

       Relator AMF Incorporated filed a petition for writ of mandamus in this court. See
Tex. Gov’t Code § 22.221; see also Tex. R. App. P. 52. In its petition, relator asks that we
compel respondent, the Honorable Mark Davidson, presiding pre-trial judge for asbestos
multi-district litigation (MDL) cases and visiting judge for the 11th District Court of Harris
County, Texas, to grant its motion for summary judgment. Relator has not shown that it is
entitled to the relief requested, and we deny the petition.

       The real party plaintiffs, John David Simpson, Individually and as Representative of
the Estate of Marion J. Simpson, Danny Lewis Simpson, and Ronnie Wayne Simpson,
brought a wrongful death lawsuit against relator after Marion Simpson’s death in 2003. In
the suit, the real parties alleged that Simpson developed lung cancer as a result of his
occupational exposure to asbestos while working as an insulator. Simpson worked at
B&B Engineering & Supply Co. Inc., at various times between 1945 and 1970. The real
parties assert that relator is liable, as a corporate successor to B&B, for Simpson’s death.

       Relator filed a traditional motion for summary judgment seeking to bar the real
parties’ common law tort claims under the exclusive remedy provisions of the Texas
Workers’ Compensation Act.1 See Tex. Lab. Code 408.001–408.222.                     On September 9,
2011, the trial court signed an order in which it granted the motion “as to all claims, other
than gross negligence, for the time periods when Plaintiff Simpson was a direct employee
of B&B Engineering and such claims are hereby DISMISSED with prejudice.” The court
denied the motion “for the time period when Plaintiff Simpson was not a direct employee
of B&B Engineering.” Relator asks this court to issue a writ of mandamus to order
respondent to vacate the September 9, 2011 order and to enter an order dismissing the real
parties’ common law tort claims against relator.

       Mandamus is an extraordinary remedy that will issue only if (1) the trial court
clearly abused its discretion and (2) the party requesting mandamus relief has no adequate
remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004).
We determine the adequacy of an appellate remedy by balancing the benefits of mandamus
review against its detriments. Id. at 136. In evaluating benefits and detriments, we
consider whether mandamus will preserve important substantive and procedural rights
from impairment or loss. Id.



       1
           The exclusive remedy provision of the Act provides:
        (a) 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.
Tex. Lab. Code § 408.001(a). Relator acknowledges that the real parties’ gross negligence claims are not
covered by the exclusive remedy provision of the Workers’ Compensation Act. See id. § 408.001(b).
                                                     2
       Mandamus is generally unavailable when a trial court denies summary judgment, no
matter how meritorious the motion, because “trying a case in which summary judgment
would have been appropriate does not mean the case will have to be tried twice.” In re
McAllen Med. Ctr., Inc., 275 S.W.3d 458, 465-66 (Tex. 2008). Although the Texas
Supreme Court recently found mandamus was appropriate to correct the erroneous denial
of a motion for summary judgment, the court noted that extraordinary circumstances
merited extraordinary relief. See In re USAA, 307 S.W.3d 299, 314 (Tex. 2010) (granting
relief to enforce limitations after relator had already endured trial in incorrect jurisdiction).
We do not find extraordinary circumstances warranting mandamus relief in this case. .

       Accordingly, we deny relator’s petition for writ of mandamus.


                                            PER CURIAM

Panel consists of Chief Justice Hedges and Justices Brown and Christopher.




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