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CONEX International Corporation6/8/2000
imination-caused physical impairment, he cannot then recover those same damages under ยง 451.001. Where we depart from the strict statement in Holland, and possibly from Nash as well, is that we are not limiting the estoppel or "double recovery" rationale to instances where the injured plaintiff has reached a settlement with his or her employer. We believe that accepting workers' compensation insurance benefits, and certainly continuing to accept such benefits up to and during trial, as Cox was doing, bars said plaintiff from any wrongful discrimination damages not fully separate and independent from the injury damages.
Under a point of error questioning the denial of a motion for directed verdict, the appellant must show that the record contains evidence establishing the movant's position as a matter of law. Harris Packaging Corp. v. Baker Concrete Const. Co., 982 S.W.2d 62, 65 (Tex. App.--Houston [1st Dist.] 1998, writ denied). A directed verdict is proper when: (1) a defect in an opponent's pleadings makes them insufficient to support a judgment; (2) the evidence conclusively proves a fact that establishes a party's right to judgment as a matter of law; or (3) the evidence is insufficient to raise an issue of fact. Id. In the instant case, even taking as true that Cox proved Conex's acts discriminated against him to the point that he sustained the second hand injury , we find that Cox failed to present enough evidence to raise a fact issue on either of the following: (1) that he had not already received compensation for the second hand injury, or (2) that he sustained, apart from the second hand injury, another separate and independent injury traceable to Conex's discriminatory practices for which Cox had not already been compensated. We therefore sustain Conex's first two appellate issues. The trial court erred in failing to direct a verdict in favor of Conex because Cox was estopped from recovering any further damages for the injuries as they were submitted to the jury based upon the evidence in the record before us. We reverse the judgment of the trial court and render judgment that Cox recover no damages from Conex.
REVERSED AND RENDERED.
Submitted on January 27, 2000
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CONCURRING OPINION
I concur with the majority. Mr. Cox, under the case law and this record, was precluded from any further recovery once he accepted benefits under the workers' compensation plan. However, Mr. Cox was in a "no-win" situation if he was to receive the medical care he required. This is a problem our legislature should examine to preclude other workers from being placed in the same position.
DON BURGESS, Justice
Concurrence Delivered: June 8, 2000
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