 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Flores v. Law12/23/1999
the responsible employee, foregoing or postponing any attempt to recover from the government." Id. (citing Gibson, 895 S.W.2d at 357).
As noted, this Court has dealt with the applicability of section 101.106 when a governmental entity receives a favorable judgment. What distinguishes this case, however, is that neither the supreme court, nor an appellate court, has addressed whether section 101.106 violates the open courts provision when a judgment is rendered in favor of the governmental entity. As in Brand, we hold this is a `distinction without a difference.' Law could have pursued a common-law remedy against Flores, foregoing or postponing any attempt to recover from UTHSC. As such, section 101.106 does not restrict a well-recognized cause of action. Accordingly, we find section 101.106 does not violate the Texas Constitution.
An argument asserted by Law during oral argument, but not in her brief, was that the discovery rules justify finding this statute unconstitutional. Specifically, section 101.104(b) provides, "neither the existence nor the amount of insurance [held by a governmental unit] is subject to discovery." Tex. Civ. Prac. & Rem. Code Ann. § 101.104 (Vernon 1997). Law argued she is unable to ascertain whether UTHSC purchased insurance for Flores, or how much, prior to suit. Therefore, if Law opted to pursue her common-law remedy against Flores, foregoing any attempt to recover from UTHSC, Law argues she may recover nothing if the hospital did not purchase insurance policies on its employees, pursuant to section 101.027(a) of the Tort Claims Act. Tex. Civ. Prac. & Rem. Code Ann. § 101.027(a) (Vernon 1997). Although we sympathize with Law's predicament, we are bound to strictly interpret the statute. As such, Law was not precluded from asserting her right to sue Flores, and her cause of action was not restricted.
Therefore, we hold the trial court erred in denying Flores's motion for summary judgment because under section 101.106, once UTHSC, a governmental unit of the State of Texas, was granted judgment in its favor, Law was barred from continuing her claim against Flores, an employee of UTHSC. We further hold the banning of that action is not a violation of the open courts provision of the Texas Constitution.
We sustain Flores's sole point of error, reverse the trial court's denial of her motion for summary judgment, and render judgment in her favor.
Publish. Tex. R. App. P. 47.
Page 1 2 3 Texas Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|