Ira Williams v. Razor Enterprises, Inc.--Appeal from 288th Judicial District Court of Bexar County

CONCURRING OPINION
No. 04-01-00134-CV
Ira WILLIAMS,
Appellant
v.
RAZOR ENTERPRISES, INC.,
Appellee
From the 288th Judicial District Court, Bexar County, Texas
Trial Court No. 1997-CI-17967
Honorable Janet P. Littlejohn, Judge Presiding

Opinion by: Paul W. Green, Justice

Concurring opinion by: Phil Hardberger, Chief Justice

Sitting: Phil Hardberger, Chief Justice

Tom Rickhoff, Justice (1)

Paul W. Green, Justice

Delivered and Filed: January 9, 2002

In view of the Texas Supreme Court's holding in Tex. Workers' Comp. Com'n v. Garcia, 893 S.W.2d 504, 523 (Tex. 1995), I agree that sections 406.123 and 406.144 of the Texas Workers' Compensation Act do not violate the open courts guarantee of the Texas Constitution. I write separately to address Williams's argument that these provisions "represent a radical departure from ... the prior statutory workers' compensation scheme" and permit a general contractor, such as Razor, "to pass on the costs of maintaining worker's compensation coverage to the laborer himself."

The workers' compensation laws have enabled general contractors and sub-contractors to enter into agreements pursuant to which a general contractor provides workers' compensation insurance to a sub-contractor and its employees since at least 1983. See Act of June 19, 1983, 68th Leg., R.S., ch. 950, 1983 Tex. Gen. Laws 5210. Even before the sweeping changes to the workers' compensation laws in 1989, the law provided "that the actual premiums (based on payroll) paid or incurred by the prime contractors for workers' compensation insurance coverage for the sub-contractor and employees of the sub-contractor may be deducted from the contract price or any other monies owed to the sub-contractor by the prime contractor." Id. Therefore, the 1989 amendments did not represent "a radical departure from the prior statutory worker's compensation scheme."

In addition, contrary to Williams's assertions, sections 406.123 and 406.144 do not permit a general contractor, such as Razor, "to pass on the costs of maintaining worker's compensation coverage to the laborer himself." Section 406.123 only enables a general contractor to deduct the premiums paid for the coverage from "the contract price or any amount owed to the subcontractor." Tex. Lab. Code Ann. 406.123 (Vernon Supp. 2001). Similarly, section 406.144 only permits the general contractor to withhold the cost of the coverage "from the contract price." Tex. Lab. Code Ann. 406.144 (Vernon 1996). Therefore, the statutory provisions only enable the general contractor to deduct the amount of the premiums from the contract price paid to the sub-contractor, which the sub-contractor can take into consideration in bidding for a particular job. Neither of the statutory provisions allow the premiums to be withheld from the amount to be paid to a sub-contractor's employee, who is "the laborer himself."

With these comments, I concur in the majority's opinion.

PHIL HARDBERGER,

CHIEF JUSTICE

PUBLISH

1. J. Rickhoff not participating.