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Kroger Co. v. Keng5/11/2000
esponsibility statute that could implicate an employee's conduct necessarily cannot apply in a nonsubscriber case.
Our opinion in Texas Workers' Compensation Commission v. Garcia, 893 S.W.2d 504 (Tex. 1995), does not dictate a different conclusion. In Garcia, we considered an open-courts challenge to the Texas Workers' Compensation Act. Id. at 520. The petitioner alleged that the Act was an inadequate substitute for a claimant's common-law remedy. See id. In considering this allegation, we compared the current statute to the available common-law remedies, not to the previous statute. See id. at 521. We recognized that under the common law, an injured employee cannot recover if he or she is more than fifty-percent negligent. See id. Kroger argues that by doing so, we sanctioned a comparative- responsibility submission in a nonsubscriber case. But in our open- courts analysis in Garcia, we intended to pose a hypothetical scenario in which we assumed that no part of either the current or the previous Workers' Compensation Act, including section 406.033, was in effect. For the purpose of analyzing the constitutional challenge, we should have more clearly explained what such lawsuits would look like if employees had only a common-law remedy. Unfortunately, we used the present tense in explaining this hypothetical, which might have led some readers to believe that we were offering an interpretation of the Texas Workers' Compensation Act. As this was not in fact the case, Kroger's reliance on our language in Garcia is misplaced.
It is evident from the Workers' Compensation Act's scheme and section 406.033's evolution that by precluding contributory negligence as a defense the Legislature intended that an employee's fault would neither defeat nor diminish his or her recovery. See Wagnon, 979 S.W.2d at 347 ("The Worker's Compensation Act clearly seeks to exclude from jury consideration any issue submitting an employee's fault, negligence, or responsibility, other than sole proximate cause."). That is the penalty employers pay for opting not to subscribe to workers' compensation insurance. If the Legislature chooses to amend section 406.033 to allow comparative responsibility as a defense, that is within its power. But we cannot conclude that in 1973, when the Legislature enacted the statutory comparative-negligence scheme, it intended to repeal by implication section 406.033's bar against nonsubscribing employers relying on an employee's negligence as a defense.
We therefore hold that a nonsubscribing employer is not entitled to a jury question on its employee's alleged comparative responsibility. We disapprove of the court of appeals' opinion in Byrd v. Central Freight Lines, Inc., 976 S.W.2d 257 (Tex. App.-Amarillo 1998), pet. denied per curiam, 992 S.W.2d 447 (Tex. 1999), to the extent it holds otherwise. Because the trial court did not err in refusing to submit Kroger's requested comparative-responsibility jury question, we affirm the court of appeals' judgment.
Deborah G. Hankinson Justice
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