                         IN THE SUPREME COURT OF TEXAS
                                                        444444444444
                                                           NO . 08-0751
                                                        444444444444

                           TEXAS MUTUAL INSURANCE COMPANY, PETITIONER,
                                                                  v.


                                       TIMOTHY J. RUTTIGER, RESPONDENT

                   4444444444444444444444444444444444444444444444444444
                                       ON PETITION FOR REVIEW FROM THE
                                COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS
                   4444444444444444444444444444444444444444444444444444


            JUSTICE WILLETT , concurring.

            I join the Court’s opinion but write separately on Part V to emphasize this overlooked truism:

It is principally the judiciary’s role to define and delimit common-law causes of action. In our

constitutional design, the judicial branch is a partner, but not a junior partner1—and shaping Texas

common law is fundamentally a judicial prerogative.

                                                           *      *       *

            Today the Court overrules Aranda v. Insurance Co. of North America2 and holds a common-

law action for bad faith is no longer warranted in the workers’ compensation context. I agree. The

dissent avers the proper inquiry is whether the Legislature intended to abrogate extra-statutory

Aranda claims when it amended the Workers’ Compensation Act in 1989. Respectfully, this focus


            1
                In re Allcat Claims Serv., L.P., 356 S.W .3d 455, 475 (Tex. 2011) (W illett, J., concurring in part and dissenting
in part).

            2
                748 S.W .2d 210 (Tex. 1988).
on legislative action is misplaced, at least in this case. To be sure, the Legislature has some power

to override or otherwise limit common-law remedies.3 However, this is a high hurdle, one clearly

uncleared here.4 As such, the search for some legislative suggestion on whether Aranda should

survive—an inquiry both the majority and the dissent eventually entertain—is at best fruitless, and

at worst, dangerously speculative.5 The more proper inquiry, respectfully, is whether the Court

believes Aranda still has a place, not whether the Legislature believes so.

         Statutory abrogation is not the sole way to re-think a common-law cause of action. In

determining the continued vitality of the bad-faith remedy in workers’ compensation cases, I would

pivot on something simpler: this Court’s nonpareil role as arbiter of the common law. It is the duty

of the judicial branch to declare what the common law is: “The law is not static; and the courts,

whenever reason and equity demand, have been the primary instruments for changing the common

law through a continual re-evaluation of common law concepts in light of current conditions.”6 This

charge is indeed an ongoing one: “[T]he common law is not frozen or stagnant, but evolving, and



         3
             See Middleton v. Tex. Power & Light Co., 185 S.W . 556, 560–61 (Tex. 1916).

         4
             See Cash Am. Int’l Inc. v. Bennett, 35 S.W .3d 12, 16 (Tex. 2000).

         5
            The separate writings here demonstrate— again— the perils of consulting legislative history. The Court
criticizes the dissent for relying on changes made to a bill during the legislative process, calling it “illogical speculation.”
Ante at __. But one sentence later, the Court posits an alternate explanation for the same legislative history, declaring
it “[m]ore logical speculation.” Id. Though the Court rightly dismisses both arguments as inappropriate, this is yet
another reminder that legislative history, often turbid and thus prone to contrivance, serves as an ever-present judicial
mercenary, embraced when helpful and ignored when not. As Justice Robert Jackson wryly observed, “It is a poor cause
that cannot find some plausible support in legislative history.” Robert H. Jackson, Problems of Statutory Interpretation,
8 F.R.D. 121, 125 (1948); see also Exxon Mobil Corp. v. Allapattah Servs., 545 U.S. 546, 568 (2005) (repeating Judge
Leventhal’s memorable phrase that rummaging around in legislative minutiae resembles “looking over a crowd and
picking out your friends” (internal citations omitted)).

         6
             Whittlesey v. Miller, 572 S.W .2d 665, 668 (Tex. 1978).

                                                               2
it is the duty of this [C]ourt to recognize that evolution.”7 Accordingly, we are called upon to re-

evaluate common-law rules, giving deference to stare decisis when warranted, but departing when

the prior rule no longer furthers the interests of efficiency, fairness, and legitimacy.8 As we noted

142 years ago, “When the reason of the rule fails, the rule itself should cease. Cessante ratione legis,

cessat ipsa lex.”9

        This axiom is sufficient to resolve today’s case because, as the Court so ably details, the

“reason” behind Aranda is no more. When we extended the duty of good faith and fair dealing to

workers’ compensation carriers in Aranda, we did so because of the “special trust relationship”

between a carrier and an employee.10 This relationship does not exist in every contractual agreement,

but we recognized it in the workers’ compensation context because of employees’ particular

vulnerability. Under the pre-1989 comp system, there was a tremendous disparity of bargaining

power, leaving employees with little to no recourse against arbitrary payment decisions.11 Concerned

with such inadequacies, we allowed a common-law remedy for bad faith to fill the gap.

        A year later, the gap was made less gaping. Observers may dispute whether the Legislature’s

1989 overhaul eliminated the bargaining disparity between carriers and employees, but it is

indisputable that the top-to-bottom reforms enacted then (and since) have lessened the concerns that



       7
           El Chico Corp. v. Poole, 732 S.W .2d 306, 310 (Tex. 1987).

       8
           See Sw. Bell Tel. Co. v. Mitchell, 276 S.W .3d 443, 447 (Tex. 2008).

       9
           Wright’s Adm’x v. Donnell, 34 Tex. 291, 306 (1870).

       10
            Aranda, 748 S.W .2d at 212.

       11
            Id. at 212–13.

                                                          3
animated Aranda. By providing a strict dispute resolution timeline, a mechanism for interlocutory

benefits, penalties for myriad carrier misdeeds, assistance for injured workers, and a litany of other

protections throughout the Labor and Insurance Codes, the Legislature has endeavored to occupy the

realm of claims handling and reduce the inequities that drove us to announce a common-law duty.

My review today of the Legislature’s pervasive workers’ comp regime convinces me that (1)

Aranda’s concerns with carrier misbehavior have been addressed, and therefore (2) Aranda’s

cumulative extra-statutory remedy should now recede.

         Otherwise, there is a very real possibility that the continued existence of bad-faith claims will

subvert the Legislature’s meticulous soup-to-nuts system, one augmented by an immense regulatory

and adjudicatory framework that, taken together, now regulates virtually every aspect of how a

carrier handles a workers’ comp matter. In the past, this Court has been hesitant to extend common-

law causes of action into fields where a pervasive regulatory scheme controls, specifically because

of this potential for interference.12 We should exercise similar deference when considering whether

to draw back an extra-statutory remedy in light of legislative changes.

         The Legislature’s radical 1989 restructuring certainly made room for our 1988 Aranda

decision, but that to me suggests not affirmation but accommodation. In any case, whether

lawmakers acknowledged Aranda out of politeness (the Supreme Court says bad-faith claims must



         12
             See Waffle House, Inc. v. Williams, 313 S.W .3d 796, 804 (Tex. 2010) (noting that an extra-statutory
negligence claim would “collide with the elaborately crafted statutory scheme” covering workplace harassment); City
of Midland v. O’Bryant, 18 S.W .3d 209, 216 (Tex. 2000) (declining to impose a duty of good faith and fair dealing on
the employment relationship because that “would tend to subvert those [statutes regulating the employment relationship]
by allowing employees to make an end-run around the procedural requirements and specific remedies the existing statutes
establish”).

                                                          4
exist) or deliberateness (the Legislature agrees such claims must exist), it is our decision whether

the bad-faith remedy retains any role as a leveler or equalizer within a pervasive statutory scheme

that controls claims handling in minute detail and bears little resemblance to the inequitable pre-

Aranda landscape.

         Our 2010 Waffle House decision is instructive. There, we considered whether the plaintiff

could bring a common-law negligence claim against her employer in light of the TCHRA’s “unique

set of substantive rules and procedures” governing sexual harassment.13 We answered that she could

not after determining that the differences between the two causes of action—in procedure, and

standards, and remedies—were “manifold.”14 Because of those differences, we rejected the

common-law claim for fear of circumventing the “meticulous legislative design.”15 We could apply

the same analysis here because the inherently fuzzy nature of the bad-faith tort has a tendency to

produce conflicting liability standards inconsistent with the Legislature’s statutory approach to

carrier malfeasance and accountability.16 I think it unwise to invite these potential complications,

particularly in an area so imbued with public policy trade-offs, and where the Legislature has

specifically addressed our concerns over how comp claims are processed.



         13
              See Waffle House, 313 S.W .3d at 803–04.

         14
              Id. at 805–07.

         15
              Id. at 805.

         16
            See Universal Life Ins. Co. v. Giles, 950 S.W .2d 48, 62–65 (Tex. 1997) (Hecht, J., concurring) (observing
that bad-faith actions are often seen as “the judicial equivalent of the W heel of Fortune” because the jury determines the
facts and the standards to be applied on an ad hoc basis); see also Waffle House, 313 S.W .3d at 804 (noting that the
workers’ compensation scheme incorporates a legislative attempt to balance the various interests and concerns of
employees and employers).

                                                            5
                                         *     *    *

       Aranda was rooted in specific claims-handling inequities in the pre-1989 comp system,

inequities the Legislature has re-balanced. Accordingly, in light of the Legislature’s hermetic

workers’ compensation regime, the time has come for the Court—exercising its authority to define

and delimit common-law remedies—to overrule Aranda, a judicial gap-filler whose underlying

rationale no longer exists.


                                                   _______________________________________
                                                   Don R. Willett
                                                   Justice


OPINION DELIVERED: June 22, 2012




                                               6
