                                                                                ACCEPTED
                                                                            03-15-00529-CV
                                                                                    7544586
                                                                 THIRD COURT OF APPEALS
                                                                            AUSTIN, TEXAS
                                                                      10/26/2015 4:12:22 PM
                                                                          JEFFREY D. KYLE
                                                                                     CLERK
                 Case No. 03-15-00529-CV
___________________________________________________
                                                       FILED IN
                                                3rd COURT OF APPEALS
               In the Court of Appeals of Texas      AUSTIN, TEXAS
                        Third District          10/26/2015 4:12:22 PM
___________________________________________________ JEFFREY D. KYLE
                                                         Clerk

                  Matthew Eric Kershner
                         Appellant

                               v.

        Samsung Austin Semiconductor, LLC
                       Appellee
___________________________________________________

      Appeal from the 53rd Judicial District Court, Travis County
                   Hon. Gisela D. Triana, Presiding
              Trial Court Cause No. D-1-GN-12-003687
___________________________________________________

                 Appellant’s Brief
___________________________________________________



                                    Matthew J. Kita
                                    Texas Bar No. 24050883
                                    P.O. Box 5119
                                    Dallas, Texas 75208
                                    (214) 699-1863 (phone)
                                    (214) 347-7221 (facsimile)
                                    matt@mattkita.com
                                    Counsel for Appellant




                     Oral Argument Requested
                 Identity of Parties and Counsel


Appellants:            Matthew Eric Kershner

Appellate and          Matthew J. Kita
Trial Counsel:         P.O. Box 5119
                       Dallas, Texas 75208

Trial Counsel:         Robert W. Lee
                       Lee Gober & Reyna
                       11940 Jollyville Road, Suite 220-S
                       Austin, Texas 78759


Appellees:             Samsung Austin Semiconductor, LLC

Appellate and          Jeffrey D. Boyd
Trial Counsel:         Fee, Smith, Sharp & Vitullo, LLP
                       816 Congress Avenue, Suite 1265
                       Austin, Texas 78701




                                  -i-
                                      Table of Contents

Identity of Parties and Counsel ................................................................................. i	

Index of Authorities ................................................................................................ iii	

Statement of the Case ............................................................................................. iv	

Statement Regarding Oral Argument ....................................................................... v	

Issues Presented ...................................................................................................... vi	

Statement of Facts ................................................................................................... 1	

Summary of the Argument ....................................................................................... 4	

Argument ................................................................................................................. 5	

I.	 	 The trial court erred when granting summary judgment because
      genuine issues of material fact remain in dispute as to whether
      Kershner was Samsung’s employee for workers-compensation
      purposes. ........................................................................................................ 5	

Conclusion and Prayer ............................................................................................. 8	

Certificate of Compliance ........................................................................................ 9	

Certificate of Service .............................................................................................. 10	




                                                       - ii -
                                Index of Authorities

Cases	

Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433 (Tex. 2009) ................ 6

TIC Energy & Chem., Inc. v. Martin, No. 13-14-00278-CV, 2015 WL 127777
  (Tex. App.—Corpus Christi Jan. 8, 2015, pet. filed) ................................ 7

Wal–Mart Stores, Inc. v. Spates, 186 S.W.3d 566 (Tex. 2006) ........................ 8

Statutes	

Tex. Labor Code § 406.121 ............................................................................ 6

Tex. Labor Code § 406.122 ............................................................................ 5

Tex. Labor Code § 406.123 ............................................................................ 7

Tex. Labor Code § 408.001 ........................................................................... 6




                                                 - iii -
                           Statement of the Case

Nature of the           Appellant sued Appellee for negligence, claiming that he
Case:                   suffered personal injuries as a result of Appellee’s failure
                        to maintain its premises in a reasonably safer manner
                        and failed to warn of latent hazards.1

Course of               Appellee filed a motion for summary judgment.2
Proceedings:

Trial Court’s           The trial court granted Appellee’s motion.3
Disposition:




1
    C.R. 3–12.
2
 C.R. 18–32. Appellant also named Samsung E&C America, Inc. as a defendant, but
nonsuited its claims against this defendant with prejudice. C.R. 175–76. The trial court
acknowledged that this defendant had been dismissed in its final judgment. C.R. 221.
3
    C.R. 221.



                                           - iv -
            Statement Regarding Oral Argument

      This case presents a question not previously addressed by this Court,

namely, whether a general contractor can immunize itself from a lawsuit by

purchasing workers-compensation insurance for the employees of

subcontractors whose work it does not control. Because the answer to this

question requires the Court to resolve fundamental disagreements between

the parties regarding statutory construction, applicable case law, and public

policy, Appellant respectfully submits that oral argument will assist the

Court in its deliberations.




                                      -v-
                        Issues Presented

1.   Under Texas law, if a general contractor purchases workers-
     compensation insurance for the employees of its non-independent
     subcontractors, it may avail itself of the “exclusive-remedy defense”
     when such employees sue for workplace-related injuries. Here, the
     record reflects a fact issue as to whether Appellant worked for an
     independent or a dependent subcontractor. Did the trial court err
     when granting Appellee’s motion for summary judgment based on the
     “exclusive-remedy defense”?




                                   - vi -
                                 Statement of Facts

          This appeal arises out of a workplace accident in which Appellant

Matthew Eric Kershner was injured while working on property owned by

Appellee Samsung Austin Semiconductor, LLC.4 At the time of the accident,

Samsung was managing a construction project on the premises, which it

referred to as the “Saturn Project.”5 Samsung hired Durr Systems, Inc. as its

electrical contractor.6 Durr then hired Spur Electric, Inc. as a subcontractor

to perform certain specialized services, including the installation of an alarm

system that could be activated in the event of a chemical spill.7 Kershner

worked for Spur as an electrical apprentice.8

          With respect to its work on the Saturn project, Spur used its own

employees—whom it hired—to accomplish the tasks that Durr assigned it.9

Spur paid its employees’ wages.10 Spur furnished the necessary tools,



4
    C.R. 3–12.
5
    C.R. 51 (Interrog. No. 2).
6
    C.R. 21.
7
    C.R. 73–74; 167.
8
    C.R. 167.
9
    C.R. 73–74; 168.
10
     C.R. 168.



                                         -1-
supplies, and materials that its employees used to perform their work.11

Finally, Spur’s foremen directed the activities of its employees.12

          On December 7, 2010, Kershner, while working in the course and

scope of his responsibilities for Spur, seriously injured his left knee when he

fell in a slippery cleaning solution on the floor of Samsung’s facility.13 He

applied for—and received—workers’ compensation benefits from Spur, and

filed the underlying lawsuit against Samsung, claiming that it was negligent

because it failed to warn him of a latent defect on the premises and therefore,

breached its duty to keep its premises reasonably safe.

          Spur filed a motion for summary judgment, arguing that because it

purchased the workers’ compensation policy that paid Kershner’s benefits,

the “exclusive-remedy provision” of the Texas Labor Code barred

Kershner’s suit as a matter of law.14 In response, Kershner argued that the

“exclusive-remedy provision” only applies to Samsung’s employees and to

employees of dependent contractors.15 And because the summary-judgment


11
     C.R. 168.
12
     C.R. 168.
13
     C.R. 39–41 (Resp. to Interrogs. 9, 10, 12).
14
     C.R. 24–29.
15
     C.R. 159–66.



                                               -2-
evidence contained (at the very least) a fact issue as to whether Spur was a

dependent or an independent contractor, Kershner argued that Samsung

failed to conclusively establish that it was entitled to judgment as a matter of

law on the exclusive-remedy defense.16 The trial court, however, granted

Spur’s motion for summary judgment without explanation,17 and this appeal

ensued.18




16
     C.R. 159–66.
17
     C.R. 221.
18
     C.R. 227.



                                      -3-
                    Summary of the Argument

      Notwithstanding the fact that Samsung purchased workers-

compensation insurance that covered Kershner, under the plain language of

the Texas Labor Code, Samsung is not entitled to assert the “exclusive-

remedy defense” if Kershner’s employer was an independent contractor.

Here, there are genuine issues of material fact in dispute on the question of

whether Kershner’s employer was an independent or dependent and

therefore, Samsung did not conclusively establish that it was entitled to

judgment as a matter of law. Accordingly, the trial court erred when granting

Samsung’s motion for summary judgment, and this Court should reverse

and remand for a trial on the merits.




                                        -4-
                                  Argument

I.        The trial court erred when granting summary judgment because
          genuine issues of material fact remain in dispute as to whether
          Kershner was Samsung’s employee for workers-compensation
          purposes.

          Samsung was not entitled to summary judgment because it failed to

conclusively establish that Kershner was its “employee” for workers-

compensation purposes. Section 406.122 of the Texas Labor Code

specifically provides:

          For purposes of workers’ compensation insurance coverage, a
          person who performs work or provides a service for a general
          contractor…who is an employer under this subtitle is an
          employee of that general contractor…, unless the person
          is…hired to perform the work or provide the service as an
          employee of a person operating as an independent contractor.19

Although it is undisputed that Samsung was acting as its own general

contractor for the project at issue,20 it is also undisputed that Kershner was

an employee of Spur Electric at the time his accident occurred.21 And

because the evidence before the trial court demonstrated that Spur was

operating as an independent contractor, Samsung was not Kershner’s



19
     Tex. Labor Code § 406.122.
20
     C.R. 26–27.
21
     C.R. 20; 34–47.



                                        -5-
employer for workers’ compensation purposes, and therefore, is not entitled

to immunity under the exclusive-remedy provision of the workers’

compensation act.22

       For purposes of this discussion, the definitions in Chapter 406 of the

Labor Code are dispositive.23 And according to section 406.121(2):

       “Independent contractor” means a person who contracts to
       perform work or provide a service for the benefit of another and
       who ordinarily:
       (A)    acts as the employer of any employee of the contractor by
              paying wages, directing activities, and performing other
              similar functions characteristic of an employer-employee
              relationship;
       (B)    is free to determine the manner in which the work or
              service is performed, including the hours of labor of or
              method of payment to any employee;
       (C)    is required to furnish or to have employees, if any, furnish
              necessary tools, supplies, or materials to perform the
              work or service; and
       (D)    possesses the skills required for the specific work or
              service.




22
  Tex. Labor Code § 408.001(a) (“Recovery of workers’ compensation benefits is the
exclusive remedy of an employee covered by workers’ compensation insurance
coverage.”)
23
  See Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009) (“We do not
look to the ordinary, or commonly understood, meaning of the term because the
Legislature has supplied its own definition, which we are bound to follow.”)



                                          -6-
Notably, Samsung’s motion for summary judgment never addressed section

406.122. Instead, it contended that it was entitled to summary judgment

simply because it purportedly complied with the requirements in section

406.123, which authorizes a general contractor to purchase workers’

compensation insurance for the employees of its subcontractors.24 But as the

Thirteenth Court of Appeals held earlier this year in TIC Energy and

Chemical v. Martin, a general contractor seeking summary judgment under

section 406.123 also has the burden to establish that section 406.122 does not

apply.25 Because it failed to do so, the trial court should have denied

Samsung’s motion for summary judgment.

         Moreover, even if this Court were not inclined to follow the holding in

Martin, Kershner’s summary-judgment evidence included his own

declaration in which he affirmed that:

         ⎯         Spur contracted with Durr Systems to perform work at
                   Samsung’s facility.
         ⎯         Durr hired Spur to perform a specific service, namely, the
                   installation of a HazMat alarm system that could be activated in
                   the event of a chemical spill.


24
     C.R. 24–27.
25
 TIC Energy & Chem., Inc. v. Martin, No. 13-14-00278-CV, 2015 WL 127777, at *4 (Tex.
App.—Corpus Christi Jan. 8, 2015, pet. filed).



                                           -7-
          ⎯       The installation of a HazMat alarm system is the type of project
                  that Spur routinely performed.
          ⎯       Spur used all of its own employees to perform its work on the
                  Samsung project, all of whom were hired by Spur.
          ⎯       Spur paid its employees’ wages, and furnished the necessary
                  tools, supplies, and materials that they used to perform their
                  work.
          ⎯       Spur’s foremen directed the activities of all the Spur employees
                  by instructing them on what to do, how to do it, and when to do
                  it.26

Because the standard of review requires this Court to accept all of

Kershner’s evidence as true, to view the evidence in the light most favorable

to him, and to resolve any doubts in his favor,27 Samsung’s no-evidence

motion for summary judgment also cannot be affirmed.

                             Conclusion and Prayer

          A defendant is not entitled to summary judgment on an affirmative

defense unless it conclusively establishes that there are no genuine issues of

material facts in dispute. Here, there is an obvious fact question as to

whether Kershner was employed by an independent or a dependent

subcontractor. Because the Labor Code specifically states that employees of

independent contractors are not deemed employees of general contractors

26
     C.R. 168.
27
     See, e.g., Wal–Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 568 (Tex. 2006).



                                              -8-
for workers-compensation insurance purposes, Samsung has not

conclusively established that it can prevail on the “exclusive-remedy

defense.” Accordingly, the trial court erred when granting Samsung’s

motion for summary judgment. This Court, therefore, should reverse and

remand this case for a new trial, and grant Kershner all other relief to which

he has shown himself to be justly entitled.


                                       Respectfully submitted,

                                       /s/ Matthew J. Kita
                                       Matthew J. Kita
                                       Texas Bar No. 24050883
                                       P.O. Box 5119
                                       Dallas, Texas 75208
                                       (214) 699-1863 (phone)
                                       (214) 347-7221 (facsimile)
                                       matt@mattkita.com
                                       Counsel for Appellant

                    Certificate of Compliance

       This brief complies with Texas Rule of Appellate Procedure 9.4(i)
because it contains 1,381 words (excluding the parts of the brief exempted by
this rule).

      Signed this 26th day of October, 2015.

                                              /s/ Matthew J. Kita
                                              Matthew J. Kita




                                      -9-
                        Certificate of Service

      The undersigned certifies that a copy of this brief was served on the
following counsel via e-filing in accordance with Texas Rule of Appellate
Procedure 9.5 and this Court’s Local Rules on October 26, 2015.

Counsel for Appellee:

      Jeffrey D. Boyd
      Fee, Smith, Sharp & Vitullo, LLP
      816 Congress Avenue, Suite 1265
      Austin, Texas 78701

                                       /s/ Matthew J. Kita
                                       Matthew J. Kita




                                    - 10 -
                                  DC            BK15237 PG263



                                CAUSE NO. D-1-GN-12-003687                            tr,n
                                                                                      ;:,ro
                                                                                      ox
                                                                                      o.o.>
 MATTHEW ERIC KERSHNER                         §   IN THE DISTRICT COURT              -.-
                                               §                                      r.nc
                                                                                      · - ::J
                                                                                      Oo
 v.                                            §   53RD JUDICIAL DISTRICT             0>0
                                                                                      ..cr,n
                                               §                                      1- ·-
                                                                                      c>
 SAMSUNG AUSTIN                                §                                      ·-
                                                                                      "OI-
                                                                                      0,).._
 SEMICONDUCTOR, LLC AND                        §                                      u::o
 SAMSUNG E&C AMERICA, INC.                     §   TRAVIS COUNTY, TEXAS



              ORDER GRANTING DEFENDANTS' FIRST AMENDED
      TRADITIONAL and NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT

       Defendants' First Amended Traditional and No-Evidence Motion for Summary Judgment

in the above-styled and numbered cause came on to be heard. The Court, having considered said

Motion and all Responses and Replies, the pleadings on file, the evidence, and the arguments of

counsel, and noting that Samsung E&C America, Inc. has been nonsuited with prejudice, is of

the opinion that said Motion is meritorious and should be in all things GRANTED AS TO

SAMSUNG AUSTIN SEMICONDUCTOR.

       IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Defendants'

First Amended Traditional and No-Evidence Motion for Summary Judgment in the above-styled

and   numbered     cause   1s    hereby   GRANTED        AS     TO    SAMSUNG        AUSTIN

SEMICONDUCTOR.

       SIGNEDthist/ dayof                                       ,2015.




                                           PRESIDING JUDGE




                                       - Appendix 1 -
                                 004178521                                                        221
§ 406.121. Definitions, TX LABOR § 406.121




  Vernon's Texas Statutes and Codes Annotated
    Labor Code (Refs & Annos)
      Title 5. Workers' Compensation
        Subtitle A. Texas Workers' Compensation Act
           Chapter 406. Workers' Compensation Insurance Coverage (Refs & Annos)
              Subchapter F. Coverage of Certain Independent Contractors

                                               V.T.C.A., Labor Code § 406.121

                                                    § 406.121. Definitions

                                                          Currentness


In this subchapter:


  (1) “General contractor” means a person who undertakes to procure the performance of work or a service, either separately
  or through the use of subcontractors. The term includes a “principal contractor,” “original contractor,” “prime contractor,”
  or other analogous term. The term does not include a motor carrier that provides a transportation service through the use
  of an owner operator.


  (2) “Independent contractor” means a person who contracts to perform work or provide a service for the benefit of another
  and who ordinarily:


     (A) acts as the employer of any employee of the contractor by paying wages, directing activities, and performing other
     similar functions characteristic of an employer-employee relationship;


     (B) is free to determine the manner in which the work or service is performed, including the hours of labor of or method
     of payment to any employee;


     (C) is required to furnish or to have employees, if any, furnish necessary tools, supplies, or materials to perform the work
     or service; and


     (D) possesses the skills required for the specific work or service.


  (3) “Motor carrier” means a person who operates a motor vehicle over a public highway in this state to provide a transportation
  service or who contracts to provide that service.


  (4) “Owner operator” means a person who provides transportation services under contract for a motor carrier. An owner
  operator is an independent contractor.




                                             - Appendix
               © 2015 Thomson Reuters. No claim               2 -Government Works.
                                                to original U.S.                                                              1
§ 406.121. Definitions, TX LABOR § 406.121




  (5) “Subcontractor” means a person who contracts with a general contractor to perform all or part of the work or services
  that the general contractor has undertaken to perform.


  (6) “Transportation service” means providing a motor vehicle, with a driver under contract, to transport passengers or
  property.


Credits
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.


Editors' Notes

                                                      REVISOR'S NOTE

                                                      2015 Main Volume

       The source law refers to “tools, supplies, or materials.” The reference to “supplies” is omitted from the revised law
       because, as used in the source law, “supplies” is included within the meaning of “materials.”



Notes of Decisions (6)

V. T. C. A., Labor Code § 406.121, TX LABOR § 406.121
Current through the end of the 2015 Regular Session of the 84th Legislature

End of Document                                                    © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                                               - Appendix
                 © 2015 Thomson Reuters. No claim               3 -Government Works.
                                                  to original U.S.                                                                  2
§ 406.122. Status as Employee, TX LABOR § 406.122




     KeyCite Yellow Flag - Negative Treatment
Proposed Legislation

  Vernon's Texas Statutes and Codes Annotated
    Labor Code (Refs & Annos)
      Title 5. Workers' Compensation
        Subtitle A. Texas Workers' Compensation Act
           Chapter 406. Workers' Compensation Insurance Coverage (Refs & Annos)
              Subchapter F. Coverage of Certain Independent Contractors

                                                V.T.C.A., Labor Code § 406.122

                                                § 406.122. Status as Employee

                                                          Currentness


(a) For purposes of workers' compensation insurance coverage, a person who performs work or provides a service for a general
contractor or motor carrier who is an employer under this subtitle is an employee of that general contractor or motor carrier,
unless the person is:


  (1) operating as an independent contractor; or


  (2) hired to perform the work or provide the service as an employee of a person operating as an independent contractor.


(b) A subcontractor and the subcontractor's employees are not employees of the general contractor for purposes of this subtitle
if the subcontractor:


  (1) is operating as an independent contractor; and


  (2) has entered into a written agreement with the general contractor that evidences a relationship in which the subcontractor
  assumes the responsibilities of an employer for the performance of work.


(c) An owner operator and the owner operator's employees are not employees of a motor carrier for the purposes of this subtitle
if the owner operator has entered into a written agreement with the motor carrier that evidences a relationship in which the
owner operator assumes the responsibilities of an employer for the performance of work.


Credits
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.



Notes of Decisions (172)

V. T. C. A., Labor Code § 406.122, TX LABOR § 406.122



                                               - Appendix
                 © 2015 Thomson Reuters. No claim               4 -Government Works.
                                                  to original U.S.                                                          1
§ 406.122. Status as Employee, TX LABOR § 406.122


Current through the end of the 2015 Regular Session of the 84th Legislature

End of Document                                                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                                             - Appendix
               © 2015 Thomson Reuters. No claim               5 -Government Works.
                                                to original U.S.                                                                  2
§ 406.123. Election to Provide Coverage; Administrative Violation, TX LABOR § 406.123




  Vernon's Texas Statutes and Codes Annotated
    Labor Code (Refs & Annos)
      Title 5. Workers' Compensation
        Subtitle A. Texas Workers' Compensation Act
           Chapter 406. Workers' Compensation Insurance Coverage (Refs & Annos)
              Subchapter F. Coverage of Certain Independent Contractors

                                               V.T.C.A., Labor Code § 406.123

                            § 406.123. Election to Provide Coverage; Administrative Violation

                                                 Effective: September 1, 2005
                                                          Currentness


(a) A general contractor and a subcontractor may enter into a written agreement under which the general contractor provides
workers' compensation insurance coverage to the subcontractor and the employees of the subcontractor.


(b) If a general contractor has workers' compensation insurance to protect the general contractor's employees and if, in the
course and scope of the general contractor's business, the general contractor enters into a contract with a subcontractor who
does not have employees, the general contractor shall be treated as the employer of the subcontractor for the purposes of this
subtitle and may enter into an agreement for the deduction of premiums paid in accordance with Subsection (d).


(c) A motor carrier and an owner operator may enter into a written agreement under which the motor carrier provides workers'
compensation insurance coverage to the owner operator and the employees of the owner operator.


(d) If a general contractor or a motor carrier elects to provide coverage under Subsection (a) or (c), then, notwithstanding Section
415.006, the actual premiums, based on payroll, that are paid or incurred by the general contractor or motor carrier for the
coverage may be deducted from the contract price or other amount owed to the subcontractor or owner operator by the general
contractor or motor carrier.


(e) An agreement under this section makes the general contractor the employer of the subcontractor and the subcontractor's
employees only for purposes of the workers' compensation laws of this state.


(f) A general contractor shall file a copy of an agreement entered into under this section with the general contractor's workers'
compensation insurance carrier not later than the 10th day after the date on which the contract is executed. If the general
contractor is a certified self-insurer, the copy must be filed with the division.


(g) A general contractor who enters into an agreement with a subcontractor under this section commits an administrative
violation if the contractor fails to file a copy of the agreement as required by Subsection (f).


(h) Notwithstanding Subsection (b), a person who performs work or provides a service for an oil or gas well operator and
who is an independent contractor that has no employees shall be treated in the same manner as an independent contractor with




                                              - Appendix
                © 2015 Thomson Reuters. No claim               6 -Government Works.
                                                 to original U.S.                                                                1
§ 406.123. Election to Provide Coverage; Administrative Violation, TX LABOR § 406.123


employees and is not entitled to coverage under the general contractor's workers' compensation insurance policy unless the
independent contractor and the general contractor enter into an agreement under this section.


Credits
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended by Acts 1997, 75th Leg., ch. 88, § 1, eff. Sept. 1, 1997; Acts
2005, 79th Leg., ch. 265, § 3.038, eff. Sept. 1, 2005.



Notes of Decisions (28)

V. T. C. A., Labor Code § 406.123, TX LABOR § 406.123
Current through the end of the 2015 Regular Session of the 84th Legislature

End of Document                                                   © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                                             - Appendix
               © 2015 Thomson Reuters. No claim               7 -Government Works.
                                                to original U.S.                                                                   2
§ 408.001. Exclusive Remedy; Exemplary Damages, TX LABOR § 408.001




  Vernon's Texas Statutes and Codes Annotated
    Labor Code (Refs & Annos)
      Title 5. Workers' Compensation
        Subtitle A. Texas Workers' Compensation Act
           Chapter 408. Workers' Compensation Benefits (Refs & Annos)
              Subchapter A. General Provisions

                                             V.T.C.A., Labor Code § 408.001

                                   § 408.001. Exclusive Remedy; Exemplary Damages

                                               Effective: September 1, 2005
                                                        Currentness


(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.


(b) This section does not prohibit the recovery of exemplary damages by the surviving spouse or heirs of the body of a deceased
employee whose death was caused by an intentional act or omission of the employer or by the employer's gross negligence.


(c) In this section, “gross negligence” has the meaning assigned by Section 41.001, Civil Practice and Remedies Code.


(d) A determination under Section 406.032, 409.002, or 409.004 that a work-related injury is noncompensable does not
adversely affect the exclusive remedy provisions under Subsection (a).


Credits
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended by Acts 2005, 79th Leg., ch. 265, § 3.077, eff. Sept. 1, 2005.


Editors' Notes

                                                    REVISOR'S NOTE

                                                     2015 Main Volume

       The source law refers to the “agent, servant, or employee” of an employer. The reference to “servant” is omitted
       from the revised law because, as used in the source law, “servant” is included within the meaning of “employee.”



Notes of Decisions (594)

V. T. C. A., Labor Code § 408.001, TX LABOR § 408.001
Current through the end of the 2015 Regular Session of the 84th Legislature

End of Document                                                   © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                                               - Appendix
                 © 2015 Thomson Reuters. No claim               8 -Government Works.
                                                  to original U.S.                                                                 1
