Pedro De La Rosa and Angelina De La Rosa v. Basic Energy Services, L.P., by and Through Its General Partner, Basic Energy Services GP, LLC ( 2021 )

Opinion filed April 8, 2021
In The
Eleventh Court of Appeals
__________
No. 11-19-00123-CV
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PEDRO DE LA ROSA AND ANGELINA DE LA ROSA, Appellants
V.
BASIC ENERGY SERVICES, L.P., BY AND THROUGH ITS
GENERAL PARTNER, BASIC ENERGY SERVICES GP, LLC,
Appellee
On Appeal from the 441st District Court
Midland County, Texas
Trial Court Cause No. CV52579
MEMORAND UM OPI NI ON
Appellants, Pedro and Angelina De La Rosa, appeal the trial court’s order
granting Appellee’s, Basic Energy Services, L.P., plea to the jurisdiction. Because
the trial court possessed subject-matter jurisdiction over Appellants’ pleaded claims,
we reverse and remand.
I. Factual Background
The facts set forth here, with respect to the incidents that gave rise to this suit,
were derived from the allegations in Appellants’ operative pleadings filed in this
cause. While employed by Appellee as a tanker-truck driver, Pedro De La Rosa was
severely injured in a rollover accident as he was transporting water from an oil well
operated by Endeavor Energy Resources to a disposal site. The rollover occurred in
the early morning hours on an unpaved dirt road near Mentone, Texas. Pedro had
worked throughout the night and was transporting his third consecutive load of
water. It was still dark outside, and Pedro was driving slowly because the road, for
the approximately fifteen miles leading to and from the well, was unpaved and
“poorly-maintained.” A large animal ran onto the road as Pedro was maneuvering
the tanker truck around a large pothole; the tanker truck he was operating then rolled
over as he attempted to avoid the animal.
Because of the extent of Pedro’s injuries, he was transported by helicopter to
a hospital in Odessa. Freddie Garcia, the “Area Superintendent” of Appellee’s office
in Pecos, introduced himself to Pedro at the hospital, and at some point, Pedro heard
Garcia direct the attending doctor not to provide certain medical care to Pedro “in
an apparent effort to minimize the records of Pedro’s injuries.” Specifically, Pedro
heard the attending doctor state that he needed to insert stitches on Pedro’s eye
cavity; Pedro then heard Garcia instruct the doctor not to do so because “Pedro [was]
fine.” Later, Pedro applied for and received workers’ compensation benefits to pay
his incurred medical expenses; he also received income benefits.
Appellants subsequently filed suit against Appellee and others. As to
Appellee, Appellants alleged that Pedro’s injuries from the rollover were
intentionally caused (1) by Appellee’s failure to provide a safe place to work and
(2) by Appellee’s knowledge that its drivers were fatigued and its requirement that
the drivers nevertheless drive excessive hours with minimal rest. On behalf of Pedro,
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Appellants further alleged that Appellee’s subsequent conduct during Pedro’s post-
accident treatment at the hospital in Odessa caused Pedro to sustain independent
injuries because Garcia, as Appellee’s agent, pressured and coerced the medical staff
to withhold medical care from Pedro and to release him prematurely. On behalf of
Angelina, Appellants also pleaded a claim against Appellee for intentional loss of
consortium.
In its third amended answer, Appellee included a plea to the jurisdiction in
which it asserted that Appellants’ claims were barred by the Texas Workers’
Compensation Act (the Act) and the affirmative defense of election of remedies.
Appellants filed a motion to strike Appellee’s plea. After a hearing, the trial court
denied Appellants’ motion to strike and granted Appellee’s plea to the jurisdiction.
In their sole issue on appeal, Appellants contend that the trial court erred when
it granted Appellee’s plea. 1 We agree.
II. Standard of Review
Before a court may dispose of a case, it is essential that the court possess
subject-matter jurisdiction. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553–54
(Tex. 2000). A plea to the jurisdiction is a dilatory plea and a proper method by
which to challenge a trial court’s subject-matter jurisdiction. Id. at 554. Whether a
trial court has subject-matter jurisdiction over a case is a question of law that we
review de novo. Harris Cty. v. Annab, 547 S.W.3d 609, 612 (Tex. 2018) (citing Tex.
1
Appellants argue that affirmative defenses may not be raised by a plea to the jurisdiction. Although
the Texas Supreme Court and some of our sister courts have generally adopted this premise, see State v.
Lueck, 290 S.W.3d 876, 880 (Tex. 2009); Schmitz v. Denton Cty. Cowboy Church, 550 S.W.3d 342, 361
n.22 (Tex. App.—Fort Worth 2018, pet. denied); Dallas Cty. v. Cedar Springs Invs. L.L.C., 375 S.W.3d 317,
321 (Tex. App. —Dallas 2012, no pet.); Univ. of Tex. Med. Branch at Galveston v. Barrett, 112 S.W.3d 815,
817 (Tex. App.—Houston [14th Dist.] 2003), aff’d, 159 S.W.3d 631 (Tex. 2005); Martinez v. Val Verde Cty.
Hosp. Dist., 110 S.W.3d 480, 484–85 (Tex. App.—San Antonio 2003), aff’d, 140 S.W.3d 370 (Tex. 2004);
Tex. Dep’t of Mental Health v. Olofsson, 59 S.W.3d 831, 833 (Tex. App.—Austin 2001, pet. dism’d);
Anders v. Weslaco Indep. Sch. Dist., 960 S.W.2d 289, 292 (Tex. App.—Corpus Christi–Edinburg 1997, no
pet.), the application of this principle is not necessary to our disposition of Appellants’ issue on appeal.
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Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004)); Ector
Cty. v. Breedlove, 168 S.W.3d 864, 865 (Tex. App.—Eastland 2004, no pet.).
The purpose of a plea to the jurisdiction is to defeat a pleaded cause of action
without reaching the merits. Blue, 34 S.W.3d at 554. A plea to the jurisdiction may
challenge the pleadings, the existence of jurisdictional facts, or both. Alamo Heights
Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018); City of Merkel v.
Copeland, 561 S.W.3d 720, 723 (Tex. App.—Eastland 2018, pet. denied). When the
plea challenges the pleadings, as in the case before us, we determine whether the
pleader has alleged facts that affirmatively demonstrate the trial court’s subject-
matter jurisdiction to hear the case. Houston Belt & Terminal Ry. Co. v. City of
Houston, 487 S.W.3d 154, 160 (Tex. 2016) (citing City of El Paso v. Heinrich, 284
S.W.3d 366, 378 (Tex. 2009)). Therefore, our review requires that we accept as true
all factual allegations in the pleadings, that we examine the pleader’s intent, and that
we construe the pleadings liberally in the pleader’s favor. Id.; Miranda, 133 S.W.3d
at 226; Cty. of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002); Tex. Mun. League
Intergovernmental Risk Pool v. City of Abilene, 551 S.W.3d 337, 342–43 (Tex.
App.—Eastland 2018, pet. dism’d).
III. Analysis
Appellants assert that the trial court erred when it granted Appellee’s plea
because they had pleaded sufficient facts to affirmatively show that the trial court
had subject-matter jurisdiction over their claims. Appellee maintains that the trial
court properly granted its plea because (1) the Act provides the exclusive remedy for
Appellants’ claims, (2) Appellants failed to exhaust their administrative remedies,
and (3) Appellants elected to receive workers’ compensation benefits. 2 We will
2
We note that Appellee also filed a motion for summary judgment challenging the merits of
Appellants’ pleaded claims on the same grounds; however, this motion was never presented to the trial court
for a ruling.
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address each ground raised by Appellee upon which the trial court could have
granted the plea.
A. Exclusive Remedy
The Act provides remedies for the prompt payment of medical expenses and
lost wages for covered employees who sustain work-related injuries, without the
injured employee’s needing to prove liability under a common-law tort theory. TIC
Energy & Chem., Inc. v. Martin, 498 S.W.3d 68, 72 (Tex. 2016) (citing HCBeck,
Ltd. v. Rice, 284 S.W.3d 349, 350 (Tex. 2009)). In fact, in exchange for the guarantee
of the payment of workers’ compensation benefits to the injured employee, the Act
prohibits an injured employee from seeking common law remedies from his
employer. Id.; see TEX. LAB. CODE ANN. § 408.001(a) (West 2015). Under its
exclusive-remedy provision, the Act provides an employer that subscribes to
workers’ compensation insurance immunity from common-law negligence claims
that may be brought by its employees. LAB. § 408.001(a); Mo-Vac Serv. Co. v.
Escobedo, 603 S.W.3d 119, 120 (Tex. 2020).
However, the Act’s exclusive-remedy provision does not prohibit an injured
employee from pursuing intentional-injury claims against his employer. Escobedo,
603 S.W.3d at 124–25 (noting that the legislature has never codified or rejected
Middleton’s intentional-injury exception and stating: “Notwithstanding the breadth
of some of its terms, [the Act’s] evident purpose was to confine its operation to only
accidental injuries, and its scope is to be so limited.” (quoting Middleton v. Tex.
Power & Light Co., 185 S.W. 556, 560 (Tex. 1916))); Reed Tool Co. v. Copelin, 689
S.W.2d 404, 406 (Tex. 1985) (“The Texas Workers’ Compensation Act is the
exclusive remedy for work-related injuries with the exception of intentional
injury.”). Under Middleton’s intentional-injury exception, an injured employee may
pursue common law remedies for the intentional torts committed by his employer if
he can establish the employer’s specific intent to inflict injury. Escobedo, 603
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S.W.3d at 125; Reed Tool, 689 S.W.2d at 406; see Berkel & Co. Contractors, Inc. v.
Lee, 612 S.W.3d 280, 285 (Tex. 2020). As such, to prevail on an intentional-injury
claim, the injured employee must establish that his employer intended for, or
believed that, its actions were substantially certain to result in injury to the employee.
Berkel, 612 S.W.3d at 285; Escobedo, 603 S.W.3d at 125; Reed Tool, 689 S.W.2d at
406.
Because the present case is before us on a plea to the jurisdiction, we look to
Appellants’ pleadings and determine only whether sufficient facts were alleged to
affirmatively bring their claims within the trial court’s subject-matter jurisdiction.
In their first amended petition, the “operative pleading” below, Appellants alleged,
with respect to the rollover incident, that “Basic Energy knew that it was subjecting
its truck drivers to fatigue by virtue of requiring them to drive excessive hours and
Basic Energy believed that [these] injury-producing events were substantially
certain to result therefrom, especially when traversing poorly-maintained dirt roads
such as the roadway at issue.” Regarding the post-rollover incidents at the hospital,
Appellants alleged that Basic Energy, through its agent (Garcia), pressured hospital
staff to withhold medical care from Pedro and that “with respect to said withholding
and premature release, Basic Energy desired at all relevant times to cause the
consequences (including the injuries to Pedro and Angie . . . ), or alternatively, Basic
Energy believed at all relevant times that said consequences are [sic] substantially
certain to result from said withholding and premature release.”
Because Appellants’ operative pleading alleged that Appellee believed that its
conduct was substantially certain to result in Pedro’s injuries and Angelina’s loss of
consortium, we find that Appellants’ pleaded claims fall within the purview of the
intentional-injury exception to the Act’s exclusive-remedy provision. Therefore,
Appellants’ factual allegations affirmatively demonstrate that the trial court has
subject-matter jurisdiction over these claims.
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B. Failure to Exhaust
Appellee also asserts that the Act deprives the trial court of subject-matter
jurisdiction over Appellants’ pleaded claim with respect to the post-rollover events
that occurred at the hospital in Odessa. Specifically, Appellee characterizes this
pleaded claim as a dispute over medical benefits and argues that Appellants’ post-
rollover claims are barred by the Act because Appellants failed to comply with the
Labor Code’s medical dispute resolution procedures and exhaust their administrative
remedies. See LAB. § 413.031(k)–(k-1) (West Supp. 2020). Appellee’s reliance on
this statute is misplaced.
The Labor Code provision advanced by Appellee is only applicable to medical
benefit disputes and medical fee disputes. See id. In this case, Appellants have
alleged neither. Therefore, the Labor Code’s medical dispute resolution procedures
and exhaustion requirements would not be triggered.
Instead, Appellants alleged that Garcia’s undue influence, and the pressure he
exerted on hospital personnel to withhold medical care for Pedro, ultimately resulted
in further injury to Pedro. Appellants further alleged that Garcia’s post-rollover
conduct was “not job-related and [was] separate from the event for which a
workers[’] compensation claim was filed and the[se] [post-rollover] acts produced
an independent injury separate from the injuries for which any workers[’]
compensation claim was filed.” Appellants pleaded an intentional-injury claim,
alleging that Garcia’s post-rollover affirmative conduct resulted in an independent
injury to Pedro. Therefore, Appellants’ factual allegations affirmatively demonstrate
that the trial court has subject-matter jurisdiction over this claim.
C. Election of Remedies
Finally, although the Act’s exclusive-remedy provision does not exempt
intentional-injury claims, the Act also does not expressly exclude workers’
compensation coverage for injuries that result from an employer’s intentional tort.
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Medina v. Herrera, 927 S.W.2d 597, 600 (Tex. 1996). In fact, an injured employee’s
receipt of workers’ compensation benefits and his pursuit of common law damages
from his employer for the same intentional injury are mutually exclusive remedies.
Id. Here, Appellee argues that Pedro’s receipt of workers’ compensation benefits
divests the trial court of subject-matter jurisdiction over Appellants’ present claims.
Appellee submits that Appellants’ intentional tort claims are barred as a matter of
law because Pedro elected to file for and receive workers’ compensation benefits;
therefore, Pedro’s “election” deprives the trial court of subject-matter jurisdiction
over Appellants’ claims. We disagree.
“The doctrine of ‘election of remedies’ is an affirmative defense that, under
certain circumstances, bars a person from pursuing two inconsistent remedies.” Id.(citing Bocanegra v. Aetna Life Ins. Co., 605 S.W.2d 848, 850–52 (Tex. 1980)).
However, whether Appellee can establish this affirmative defense to Appellants’
claims does not bear on the trial court’s subject-matter jurisdiction over the case.3 2F
We additionally note that, under Reed Tool, an injured employee’s acceptance of
workers’ compensation benefits does not bar an employee-spouse’s derivative claim
against the employer for intentional impairment of consortium because the
employee-spouse’s own claim for intentional injury is not excluded by the Act. Reed
Tool Co. v. Copelin, 610 S.W.2d 736, 740 (Tex. 1980) (holding that wife’s derivative
claim of negligent impairment of consortium was barred by husband’s workers’
compensation agreement but that her action for intentional impairment of
consortium was not); see also Reed Tool, 689 S.W.2d at 407–08 (holding that
summary judgment in wife’s action for intentional impairment of consortium was
proper because wife could not establish employer’s requisite intent to injure).
3
In their briefs, the parties argue whether Appellee has established the elements of its election-of-
remedies defense. Because the only issue before us is whether the trial court has subject-matter jurisdiction
over the case, our review on appeal does not consider that merits determination.
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Here, because Appellants’ claims are not within the Texas Department of
Insurance’s exclusive jurisdiction and because Appellee’s election of remedies
defense is not an impediment to the trial court’s exercise of subject-matter
jurisdiction over the case, we hold that the trial court’s determination that it lacked
subject-matter jurisdiction over Appellants’ claims and its order granting Appellee’s
plea were erroneous. Accordingly, we sustain Appellants’ sole issue on appeal.
IV. This Court’s Ruling
Appellants pleaded sufficient facts to affirmatively show that the trial court
has subject-matter jurisdiction over their asserted claims. Therefore, we reverse the
order of the trial court and remand the cause to the trial court for further proceedings.
W. STACY TROTTER
JUSTICE
April 8, 2021
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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