Linda Douglas v. Moody Gardens, Inc. and Transcontinental Insurance Company ( 2007 )

Affirmed and Memorandum Opinion filed December 20, 2007

Affirmed and Memorandum Opinion filed December 20, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-07-00016-CV

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LINDA DOUGLAS, Appellant

V.

MOODY GARDENS, INC. AND TRANSCONTINENTAL INSURANCE COMPANY, Appellees

On Appeal from the County Court No. 3

Galveston County, Texas

Trial Court Cause No. 49,822

M E M O R A N D U M  O P I N I O N

Linda Douglas appeals a summary judgment in favor of her employer, appellee, Moody Gardens, Inc. (AMoody@).  In its motion for summary judgment, Moody contended Douglas=s personal injury suit is barred by the exclusivity provision of the Texas Workers= Compensation Act (Athe act@) because she was injured in the course and scope of her employment.  In her sole issue, Douglas argues that the trial court erred by granting summary judgment because Moody is estopped from asserting that Douglas was injured in the course and scope of her employment. All dispositive issues are settled in law.  Accordingly, we issue this memorandum opinion and affirm.  See Tex. R. App. P. 47.4.

I.  Background

According to the undisputed summary-judgment evidence, on April 27, 2001, Douglas was employed at a hotel owned by Moody.  During her lunch break, she sat on a curb in the loading dock area of the hotel while smoking a cigarette.  A fellow employee inadvertently engaged the accelerator of a utility cart, causing it to roll over Douglas=s leg.  Douglas sustained injuries requiring medical treatment.

During relevant times, Moody was a workers= compensation subscriber.  However, Douglas did not timely file a workers= compensation claim.  Instead, she filed this negligence suit against Moody.  Nevertheless, the issue of whether Douglas sustained a compensable injury became the subject of a workers= compensation proceeding.^[1] The trial court abated this suit because the Texas Workers= Compensation Commission (Athe Commission@) had not issued its final determination.  A Commission hearing officer decided Douglas was injured in the course and scope of her employment, but she was not entitled to workers= compensation benefits because she failed to timely file a claim.  A Commission appeals panel affirmed this decision.^[2] Subsequently, the trial court reinstated this suit.

Moody filed a traditional motion for summary judgment, contending that this suit is barred by the exclusivity provision of the act because Douglas was injured in the course and scope of her employment.  See Tex. Lab. Code Ann. ' 408.001(a) (Vernon 2006) (providing, recovery of workers= compensation benefits is the exclusive remedy for work‑related injury of employee covered by workers= compensation insurance); see also Tex. Lab. Code Ann. ' 406.034 (Vernon 2006) (providing, subject to certain exceptions, an employee of workers= compensation subscriber waives common-law right to recover damages for  injuries sustained in course and scope of employment).^[3]  The trial court signed an interlocutory order, followed by a final order, granting Moody=s motion and ruling that Douglas take nothing.

Additionally, in Douglas=s live petition filed after the Commission=s final determination, she also sued Transcontinental Insurance Company, Moody=s workers= compensation carrier.  Douglas named Transcontinental in order to challenge in this suit the decision rendered by the Commission appeals panel, to which Transcontinental was an interested party.  The trial court also granted summary judgment in favor of Transcontinental.

II.   Summary Judgment in Favor of Transcontinental

Preliminarily, in her notice of appeal, Douglas asserted that she is appealing the summary judgments in favor of both Transcontinental and Moody.  However, in her brief, Douglas does not assign error to, or present any argument challenging, the summary judgment in favor of Transcontinental.  Therefore, Douglas has waived any challenge to this summary judgment.  See Tex. R. App. P. 38.1(e), (h) (requiring, inter alia, that brief state issues presented for review and contain argument); Keough v. Cyrus USA, Inc., 204 S.W.3d 1, 5 (Tex. App.CHouston [14th Dist.] 2006, pet. denied) (recognizing appellant waives error by failing to brief it on appeal). Accordingly, we affirm the summary judgment in favor of Transcontinental.  We will address only the summary judgment in favor of Moody.

III.  Summary Judgment in Favor of Moody

In her summary-judgment response and on appeal, Douglas does not challenge Moody=s contention that she was injured in the course and scope of her employment.  Rather, Douglas argues Moody is estopped from advancing this contention because, shortly after her injury, Moody posited she was not injured in the course and scope of her employment and did not change its position until she was time barred from filing a workers= compensation  claim.  Accordingly, Moody was required to raise a genuine issue of material fact on her estoppel theory.  See Lundstrom v. United Servs. Auto. Ass=n.‑CIC, 192 S.W.3d 78, 84 (Tex. App.CHouston [14th Dist.] 2006, pet. denied) (recognizing, if movant establishes its right to summary judgment, burden shifts to nonmovant to raise a genuine material fact issue sufficient to defeat summary judgment).^[4]  

We review the summary judgment de novo.  Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).  We take all evidence favorable to Douglas as true and indulge every reasonable inference and resolve any doubts in her favor.  See id.

To support her estoppel theory, Douglas presented a form TWCC-21 (used by a carrier to accept or reject workers= compensation benefits), a letter from Douglas=s attorney to Moody, and Douglas=s affidavit.  The form TWCC-21, dated May 1, 2001, includes a section entitled ANOTICE OF REFUSED OR DISPUTED CLAIM,@ which was completed as follows: ACarrier disputes liability, our investigation determined: 1) No injury in course and scope of her employment. 2) Employee was on lunch break and the injury occurred on a deviation.@  (emphasis added).  In the letter sent by Douglas=s attorney to Moody in June 2001, he sought to resolve her potential claim against Moody.  The attorney stated, A[Douglas] was advised by the initial health care provider that your firm or insurer had taken the position that she was not injured on the job, and was ineligible for workers compensation benefits.@  (emphasis added).  The form and letter do not necessarily indicate that Moody, as opposed to its carrier, posited Douglas did not sustain a compensable injury.^[5]

Nevertheless, Douglas=s affidavit is some evidence that Moody asserted this position shortly after her injury.   Douglas averred, ADuring the course of my treatment I was advised that my employer, [Moody], disputed my entitlement to be treated under Workers Compensation, and I would be required to make alternative arrangements for payment for my medical treatment.@  However, this evidence is insufficient to raise a genuine issue of material fact on her estoppel theory. Douglas raises both equitable estoppel and quasi-estoppel.  These theories are distinct and have different elements of proof.^[6]

Equitable estoppel may be asserted to bar a defendant from raising a particular defense. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156 n.1 (Tex. 2004).  To establish equitable estoppel, a party must prove (1) a false representation or concealment of material facts, (2) made with knowledge, actual or constructive, of those facts, (3) with the intention that the representation should be acted on, (4) to a party without knowledge, or the means of knowledge of those facts, (5) who detrimentally relied upon the misrepresentation. Schroeder v. Tex. Iron Works, Inc., 813 S.W.2d 483, 489 (Tex. 1991) (citing Gulbenkian v. Penn, 151 Tex. 412, 418, 252 S.W.2d 929, 932 (1952)).

Douglas did not present any evidence raising a genuine issue of material fact on, at least, the fourth element of her equitable estoppel claim.  In fact, the summary-judgment evidence negates the fourth element.  Douglas was required to file a workers= compensation claim within one year after the date of her injury.  See Tex. Lab. Code Ann. ' 409.003(1) (Vernon 2006).  The evidence reflects that Douglas had retained an attorney by, at most, two months after her injury.  Therefore, she had an attorney to advise that her injury may have occurred in the course and scope of her employment and thus she needed to pursue a workers= compensation claim.  Accordingly, Douglas was not Awithout knowledge, or means of knowledge@ that she may have been injured in the course and scope of her employment, despite any contrary representation by Moody.

Under the quasi-estoppel principle, a party is precluded from asserting, to another=s disadvantage, a right inconsistent with a position previously taken by the party.  Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 864 (Tex. 2000); Steubner Realty 19, Ltd. v. Cravens Road 88, Ltd., 817 S.W.2d 160, 164 (Tex. App.CHouston [14th Dist.] 1991, no writ). The doctrine applies where it would be unconscionable to allow a party to maintain a position inconsistent with one in which it acquiesced, or of which it accepted a benefit.  Lopez, 22 S.W.3d at 864; Steubner Realty 19, Ltd., 817 S.W.2d at 164.

In her summary-judgment response and on appeal, Douglas does not specifically use the term Aunconscionable.@  However, Douglas suggests she was precluded from filing a workers= compensation claim based on Moody=s initial position that she was not injured in the course and scope of her employment; therefore, she will receive no form of recovery if Moody is allowed to now reverse its position. This reasoning is insufficient to raise a material fact issue on whether it would be unconscionable for Moody to rely on the exclusivity provision of the act as a bar to this suit, despite its earlier inconsistent position.

We recognize that, unlike equitable estoppel, quasi-estoppel requires no showing of misrepresentation or detrimental reliance.  Steubner Realty 19, Ltd., 817 S.W.2d at 164.  However, in this case, the particular quasi-estoppel/unconscionability reasoning offered by Douglas necessarily requires a reliance component due to her suggestion she was precluded from filing a workers= compensation claim based on Moody=s earlier position.  Therefore, we employ a similar analysis for her equitable estoppel and quasi-estoppel theories. 

As we have explained, Douglas had her own attorney to advise regarding her rights and responsibilities under the act, including the need to timely file a workers= compensation claim.  If she had filed a claim, she may have been compensated for her injury.  Alternatively, if the workers= compensation process had ultimately yielded a determination that her injury was not compensable, she could have filed a negligence suit without being subject to the exclusivity provision of the act.  Consequently, Douglas is not denied recovery for her injury based on Moody=s inconsistent positions.  Rather, she is denied recovery because she elected not to timely pursue a workers= compensation claim.  Therefore, it is not unconscionable for Moody to rely on the exclusivity provision of the act as a defense to this suit.

In sum, Douglas failed to raise a genuine issue of material fact on her equitable estoppel or quasi-estoppel theories.  Accordingly, we overrule her sole issue and affirm the summary judgment in favor of Moody.

/s/        Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed December 20, 2007.

Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.

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^[1]  Apparently, Moody filed the required employer=s notice of injury, and its workers= compensation carrier disputed that the injury was compensable.  Although Douglas did not timely file a workers= compensation claim, she requested an administrative decision on whether her injury was compensable.  During the proceeding, she apparently urged the somewhat unusual position that her injury was not compensable, hoping to prevent a subsequent bar to this negligence suit against Moody.

^[2]  Moody did not attach the decisions of the hearing officer or appeals panel to its motion for summary judgment, but these decisions were attached to the carrier=s motion for summary judgment. and referenced in Moody=s motion.  Further, the history of the workers= compensation proceeding in this case is undisputed because, in her live petition, Douglas recited the pertinent facts.

^[3]  Moody cited the Apersonal convenience and comfort doctrine@ to support its contention that Douglas was injured in the course and scope of her employment although the incident occurred during her lunch break.  See generally Yeldell v. Holiday Hills Ret. & Nursing Ctr., 701 S.W.2d 243, 245 (Tex. 1985) (AYemployee in the course of his employment may perform acts of a personal nature that a person might reasonably do for his health and comfort, such as quenching thirst or relieving hunger; such acts are considered incidental to the employee=s service and the injuries sustained while doing so arise in the course and scope of his employment . . .@). 

^[4]  Although, on appeal, Douglas briefly implies she was not injured in the course and scope of her employment, she does not appeal the summary judgment on this basis.

^[5]  In her summary-judgment response, Douglas argues the carrier was acting as Moody=s agent and its representations are attributable to Moody.  We need not decide whether the form TWCC-21 and letter constitute evidence that Moody posited Douglas was not injured in the course and scope of her employment because her affidavit provides some evidence Moody asserted this position.

^[6]  In her summary-judgment response and on appeal, Douglas generally cites the purpose of these theories.  But, she does not cite the elements of either theory, much less argue she raised a material fact issue on each element.  Nonetheless, we conclude she failed to raise a material fact issue on either theory.