Reynard Wright v. Stephen Toomey--Appeal from 225th Judicial District Court of Bexar County

 

No. 04-98-00383-CV
Reynard WRIGHT,
Appellant
v.
Stephen TOOMEY,
Appellee
From the 225th Judicial District Court, Bexar County, Texas
Trial Court No. 97-CI-06738
Honorable Peter Michael Curry, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Tom Rickhoff, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: December 16, 1998

REVERSED AND REMANDED

Nature of the case

Reynard Wright appeals a take-nothing summary judgment granted in favor of Stephen Toomey. Wright brought suit alleging that Toomey's negligence caused him personal injuries. In his sole issue on appeal, Wright argues that the court erred in granting Toomey's motion for summary judgment.

Factual Background

Wright was employed as a night security guard for Alamo Toyota and Toomey was the

general manager of Alamo Toyota. According to Wright's petition, Toomey owned a dog named Lillie who appeared in Alamo Toyota's advertisements and television commercials. Toomey normally brought Lillie to work and the dog stayed in the used car building. While performing his job duties, Wright entered the used car building at approximately 8:15 P.M. to set the alarm. Wright encountered Lillie inside the building and Lillie ran toward him, jumped on him, and knocked him to the ground. As a result of the fall, Wright suffered injuries to his back and leg. In his affidavit in response to Toomey's summary judgment motion, Wright stated that during the time he had been working as a security guard for Alamo Toyota, Lillie had never been left in the used car building at night. Because Wright was acting in the course and scope of his employment when he was injured, he sought and received compensation from Alamo Toyota's workers' compensation carrier. Wright then filed suit against Toomey in his individual capacity alleging that Toomey was negligent in failing to warn him of the dog's presence and by failing to restrain the dog.

Summary Judgment

Toomey filed a summary judgment motion alleging that Wright is barred from bringing suit on two grounds: (1) the exclusive remedy provision of section 408.001 of the Texas Labor Code; and (2) the election of remedies doctrine. Section 408.001(a) provides:

Recovery of workers' compensation benefits is the exclusive remedy of an employee covered by workers' compensation insurance coverage or a legal beneficiary against the employer or an agent or employee of the employer for the death of or a work-related injury sustained by the employee.

Tex. Lab. Code Ann. 408.001(a) (Vernon 1996). The doctrine of election of remedies is an affirmative defense which prevents a person from a double recovery for the redress of a single wrong. See Slay v. Burnett Trust, 143 Tex. 621, 187 S.W.2d 377, 393 (1945). Under this doctrine relief may be barred when: (1) someone has successfully exercised an informed choice; (2) between two or more remedies, rights, or states of facts; (3) which are so inconsistent as to; (4) constitute manifest injustice. Medina v. Herrera, 927 S.W.2d 597, 600 (Tex. 1996) (citing Bocanegra v. Aetna Life Ins. Co., 605 S.W.2d 848, 851 (Tex. 1980)).

Although Toomey urged the exclusive remedy provision and the election of remedies doctrine as two separate grounds for summary judgment, we do not view these as two distinct grounds. Essentially, section 408.001 is a codification of the common-law equitable doctrine of election of remedies.(1) Section 408.001 provides that worker's compensation is the exclusive remedy for an injured worker and thus, precludes a worker from obtaining a double recovery from his employer or an employee. Thus, we must determine whether the exclusive remedy provision of section 408.001 precludes Wright's claim.

In a motion for summary judgment, the movant has the burden to show that there exists no genuine issue of material fact and that he is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). A defendant is entitled to summary judgment when each element of an affirmative defense to plaintiff's cause of action has been established as a matter of law. Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex. 1990) (citing Montgomery v. Kennedy, 669 S.W.2d 309, 311 (Tex. 1984)).

Section 408.001

Toomey alleges that his motion for summary judgment establishes the affirmative defense of immunity under the exclusive remedy provision of section 408.001. Section 408.001 clearly states that the recovery of worker's compensation is the exclusive remedy of an employee against his employer or an agent or employee of the employer. The Texas Supreme Court, in addressing the predecessor to section 408.001, found that an agent or employee within the meaning of the statute is "ordinarily one for whose conduct the employer would, aside from the Workmen's Compensation Act, be legally responsible under the doctrine of respondeat superior." McKelvy v. Barber, 381 S.W.2d 59, 62 (Tex. 1964). Further, in order to impose liability upon an employer for the negligence of an employee under the doctrine of respondeat superior the negligent act must fall "within the scope of the general authority of the employee." Leadon v. Kimbrough Brothers Lumber Co., 484 S.W.2d 567, 569 (Tex. 1972). "It is not essential that the negligent act or omission should have been expressly authorized by the employer so long as it is in furtherance of the employer's business and for the accomplishment of the object for which the employee is employed." Id. (citing Texas Power & Light Co. v. Denson, 125 Tex. 383, 81 S.W.2d 36 (1935)).

Wright's original petition alleges that Toomey committed the following negligent acts:

(a) Failing to notify Plaintiff that the dog was in the building not restrained, not supervised, and not caged or enclosed in an office;

(b) Failing to restrain his dog in a situation where he knew persons unknown to the dog would be exposed to the dog in an area which the dog considered his own territory.

Thus, Toomey must prove that the alleged negligent acts were in the furtherance of Alamo Toyota's business and for the accomplishment of the object for which Toomey was employed.

Toomey attached the workers' compensation file and his own affidavit as summary judgment evidence which states in pertinent part:

On or about June 5, 1996, I was an employee of Alamo Toyota as a General Manager. My dog, Lillie, was frequently on the premises of Alamo Toyota. She was utilized in television commercials for Alamo Toyota. At the time of the alleged injury by Reynard Wright, I was an employee with Alamo Toyota and my presence at the business address of Alamo Toyota, as well as my dog Lillie's presence, was in furtherance of my employer's business, Alamo Toyota.

Wright alleges that Toomey's statement, that at the time of the injury Lillie's presence at Alamo Toyota was in furtherance of his employer's business, amounts to a mere conclusion unsupported by facts. See Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996) (finding that conclusory affidavits to not dispose of an issue of fact). We agree. The only facts Toomey alleges in his affidavit, that Lillie was frequently on the premises and that she was utilized in Alamo Toyota television commercials, in no way demonstrates how Lillie's presence at the time of the injury was in furtherance of Alamo Toyota's business. Thus, Toomey has failed to prove an element of his affirmative defense. Toomey has not established the affirmative defense of exclusive remedy under section 408.001 of the Labor Code as a matter of law. Thus, the exclusive remedy provision does not support Toomey's motion for summary judgment.

Toomey further argues, however, that, even if his affidavit is conclusory, summary judgment was proper because, as general manager, his conduct was virtually the conduct of the corporation. See Helms v. Home Owners' Loan Corp, 129 Tex. 121, 103 S.W.2d 128, 133-134 (1937). In other words, Toomey argues he is not required to prove that, at the time of the injury, he was acting in furtherance of Alamo Toyota's business. The Helms case, cited by Toomey, is not on point. The Helms case did not concern liability of a corporation for the torts of its general agent; rather it concerned whether a general agent was authorized to act on behalf of the corporation in conducting its business. Id. We know of no authority that would excuse Toomey from the requirement to prove that, at the time of the injury, he was acting in furtherance of Alamo Toyota's business. See Leadon, 484 S.W.2d at 569.

Accordingly, we must reverse and remand the summary judgment.

Karen Angelini, Justice

DO NOT PUBLISH

1. Toomey asserts that Wright has failed to brief the election of remedies ground and because the court's order does not specify upon which ground the summary judgment was granted, Wright must attack each ground alleged in the motion for summary judgment. Toomey argues that because Wright does not attack every ground that the summary judgment might have been granted on, we should affirm the summary judgment on the ground waived. See Fields v. City of Texas City, 864 S.W.2d 66, 68 (Tex. App.--Houston [14th Dist.] 1993, no writ) (holding that court of appeals may affirm on basis that summary judgment not challenged on all grounds). However, in light of our position that section 408.001 codifies the election of remedies doctrine in the workers' compensation context, we do not find that failure to brief this issue leads to an affirmance of Toomey's motion for summary judgment.

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