in Re FW Services, Inc. D/B/A Pacesetter Personnel Services ( 2020 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-20-00185-CV
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IN RE FW SERVICES, INC., D/B/A PACESETTER PERSONNEL
SERVICES
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Original Proceeding
136th District Court of Jefferson County, Texas
Trial Cause No. D-204,923
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MEMORANDUM OPINION
FW Services, Inc., d/b/a Pacesetter Personnel Services (“Pacesetter”), Relator,
petitioned for a writ of mandamus to compel the trial court to vacate a June 22, 2020
order denying a plea to the jurisdiction and abate a personal injury suit filed by
Pacesetter’s employee, Anthony Snowden, until workers’ compensation
proceedings have been finally concluded.
Snowden sued Pacesetter and a fellow Pacesetter employee, Joshua Dancurtis
Franklin. Snowden alleged that Franklin, acting in the course and scope of his
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employment with Pacesetter, was transporting Snowden to a jobsite and that
Franklin failed to exercise ordinary care in the operation of the vehicle, resulting in
a single-vehicle collision that injured Snowden. Snowden alleged Pacesetter was
liable under the doctrine of respondeat superior, and that Pacesetter was negligent in
hiring and retention, in entrustment, and in training and safety implementation. In
an amended petition, Snowden alleged it has been determined that pursuant to the
Texas Workers’ Compensation Act Snowden was not in the scope of employment
for Pacesetter at the time of the collision.
Pacesetter alleged in its mandamus petition that the exclusive remedy
provisions of the Texas Workers’ Compensation Act barred Snowden’s claims
against Pacesetter. In addition to raising this affirmative defense in its answer,
Pacesetter filed a plea to the jurisdiction through which it asserted that Snowden’s
claims against Pacesetter must be abated because the claim was still pending before
the commission. Pacesetter alleged that it is a subscriber to workers’ compensation,
that the claim was reported as a work-related injury and that compensability was
disputed because of Snowden’s intoxication. Pacesetter argued that the trial court
must abate Snowden’s tort claims against Pacesetter until the administrative
agency’s proceedings have finally concluded. The mandamus record includes a
notice from the Texas Department of Insurance Division of Workers’ Compensation
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(“DWC”). The DWC notified the parties that a benefit review conference of
Snowden’s workers’ compensation claim was set for July 23, 2020.
In his response to Pacesetter’s mandamus petition, Snowden argues the trial
court has the discretion to deny the plea to the jurisdiction because Snowden raised
a genuine issue of material fact as to whether Pacesetter admitted that Snowden was
not in the course and scope of his employment with Pacesetter when the accident
occurred. It is undisputed, however, that a workers’ compensation proceeding was
actively before the DWC on the date that the trial court denied the plea to the
jurisdiction. As a matter of law, the DWC has jurisdiction of a workers’
compensation proceeding with Snowden as the worker and Pacesetter as the
employer. The trial court could not determine Pacesetter’s exclusive remedy defense
until the administrative proceeding concluded. See In re Luby’s Cafeterias, Inc., 979
S.W.2d 813, 817 (Tex. App.—Houston [14th Dist.] 1998, orig. proceeding). A trial
court abuses its discretion if it refuses to abate the negligence suit. Id. “Where the
outcome of a presently-pending workers’ compensation proceeding would preclude
liability in the parallel litigation, there is no adequate remedy by appeal.” In re
Louisiana-Pacific Corp., 112 S.W.3d 185, 190 (Tex. App.—Beaumont 2003, orig.
proceeding).
We conditionally grant the petition for writ of mandamus. We are confident
the trial court will follow the instructions of this Court and abate the case as long as
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the matter is pending before the commission; a writ will issue only if the trial court
below fails to comply with this decision.
PETITION CONDITIONALLY GRANTED.
PER CURIAM
Submitted on August 31, 2020
Opinion Delivered December 10, 2020
Before McKeithen, C.J., Horton and Johnson, JJ.
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