     Case: 18-20487      Document: 00514975017         Page: 1    Date Filed: 05/29/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit

                                                                              FILED
                                      No. 18-20487                        May 29, 2019
                                                                         Lyle W. Cayce
KRYSTAL BERRY,                                                                Clerk


              Plaintiff - Appellant

v.

MISSIONARIES OF THE COMPANY OF MARY, INCORPORATED; JOHN
GALLA,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:17-CV-2629


Before HAYNES, GRAVES, and HO, Circuit Judges.
PER CURIAM:*
       This case presents sad and unusual facts but straightforward law. Albin
Golla (“Brother Golla”), who took a vow of poverty, was involved in a car
accident with plaintiff, Krystal Berry (“Berry”), while he was out of town
visiting family but utilizing a rental car financed by his alleged employer,
Missionaries of the Company of Mary, Inc. (“Missionaries, Inc.”). Berry, who



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                      No. 18-20487
undoubtedly suffered injuries as a result, sued Brother Golla and Missionaries,
Inc. for damages. Brother Golla passed away while the suit was pending, and
the district court ordered Berry to substitute a proper party in his place.
Asserting that Brother Golla’s nephew, John Galla (“Nephew Galla”) was
Brother Golla’s next of kin, Berry substituted him.
       Nephew Galla filed a motion for summary judgment contending he was
not liable in any capacity for Brother Golla’s negligence. Missionaries, Inc. also
filed a motion for summary judgment contending that Brother Golla was not
acting in the course and scope of his employment when the accident occurred.
The district court granted both defendants’ motions for summary judgment,
and Berry timely appealed. We AFFIRM. 1
       I. Nephew Galla.
       Texas law 2 is clear that “[a] suit seeking to establish the decedent’s
liability . . . should ordinarily be instituted against the personal representative
or, under appropriate circumstances, against the heirs or beneficiaries.” Price
v. Anderson’s Estate, 522 S.W.2d 690, 691 (Tex. 1975). When an heir is sued,
the heir is liable to the extent of the property he received. Perkins v. Cain’s
Coffee Co., 466 S.W.2d 801, 802 (Tex. Civ. App.—Corpus Christi 1971, no writ).
Since it is undisputed that Brother Golla had no assets and, consequently, that
Nephew Galla inherited nothing as an heir, he cannot be liable in that capacity.
He is also not a proper personal representative because he had no role—



       1  We review a grant of summary judgment de novo, “using the same standards as the
district court.” See K.P. v. LeBlanc, 729 F.3d 427, 435 (5th Cir. 2013) (quoting Sossamon v.
Lone Star State of Tex., 560 F.3d 316, 326 (5th Cir. 2009)). Summary judgment is appropriate
“if the movant shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a).
       2 The proper party is determined according to state substantive law. See Ransom v.
Brennan, 437 F.2d 513, 520 (5th Cir. 1971) (noting that although Rule 25 determines “the
manner in which substitution of parties may be effected,” whether a cause of action survives
is determined by state substantive law).
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                                  No. 18-20487
appointed or otherwise—as an executor or other estate administrator. See
Haven Chapel United Methodist Church v. Leebron, 496 S.W.3d 893, 912–13
(Tex. App.—Houston [14th Dist.] 2016, no pet.) (declining to find owner of the
property at issue the properly substituted party under the analogous Texas
rule because she had not “received the bulk of [the decedent’s] estate, acted as
an executor for all practical purposes, or was the only person that would
otherwise be authorized to defend the suit”).
      Berry argues that she seeks to sue Nephew Galla only in his
representative capacity so that she may recover under the applicable insurance
policy and that failing to allow her to do so would be inequitable. But Texas
law provides for this situation:    Berry could have filed an application for
administration of Albin’s estate in probate court and then substituted that
administrator as the proper defendant. See TEX. EST. CODE. ANN. §§ 301.051,
304.001.   She did not do so. The district court correctly granted relief to
Nephew Galla.
      II. Missionaries, Inc.
       Brother Galla was on his way to St. Ambrose church when the accident
occurred. Berry spends a great deal of time arguing that Brother Golla was on
his way to the church to perform some sort of official duty for Missionaries, Inc.
It is undisputed that Brother Golla was in Houston to visit his ailing sister and
that Missionaries, Inc. paid for the rental car due to its practice of supporting
its brethren who take a vow of poverty. But whether or not Brother Golla was
on his way to perform some type of missionary work or simply to attend a
service, it is undisputed that he was on his way, and not actually performing
any work at the time of an accident. Under the Texas “coming and going” rule,
an employer is not liable for torts committed during an employee’s transit to
and from work.       See Hervey v. Enerpipe, Ltd., 03-18-00252-CV, 2018 WL
3637327, at *3 (Tex. App.—Austin Aug. 1, 2018, no pet.) (collecting cases).
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Thus, even if we resolved every doubt in Berry’s favor and concluded that
Brother Golla was on his way to work when the accident occurred,
Missionaries, Inc., would not be vicariously liable. See id. Berry argues that
the “coming and going” rule applies only when an employee is returning from
work and only for worker’s compensation claims. But Berry is incorrect. See
Painter v. Amerimex Drilling I, Ltd., 561 S.W.3d 125, 136, 139 (Tex. 2018)
(describing the rule as applying when an employee travels to and from work
and applying in the vicarious-liability context). Accordingly, Missionaries,
Inc., is not liable.
      AFFIRMED.




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