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Smith v. Atlantic Richfield Company3/14/1996
Judgement reversed and remanded and Opinion filed.
March 14, 1996
O P I N I O N
In this appeal, we are asked to decide if the appellants, Gloria Lou Smith, David Glynn Smith, and Paula Satrece Petters (the family), may recover exemplary damages from the defendants, Atlantic Richfield Company and Lyondell Petrochemical Company (the companies), in a wrongful death action. The trial court rendered summary judgement for the companies. In two points of error, the family contends the trial court erred in rendering summary judgement because (1) Texas law provides a cause of action for exemplary damages against an employer whose gross negligence results in the employee's wrongful death and (2) the motion for summary judgement did not address the cause of action for intentional tort. We reverse.
Background
Earl D. Smith worked for Atlantic Richfield Company and Lyondell Petrochemical Company, both of whom subscribed to the Workers' Compensation Act. In the course of his employment, Smith was exposed to various carcinogenic substances. He contracted cancer and died in 1992. The family brought a wrongful death action against the companies to recover exemplary damages, alleging Smith died as a result of the companies' gross negligence.
The companies moved for summary judgement on March 17, 1992. The family filed their second amended original petition on March 24, 1992, adding a second cause of action for intentional misconduct. The trial court rendered summary judgement for the companies and dismissed the family's claims on April 10, 1995. The family's motion for new trial was overruled by operation of law and this appeal ensued.
Wrongful Death
In point of error one, the family argues the trial court erred in ruling Texas law does not provide a cause of action for exemplary damages against employers whose gross negligence caused an employee's death.
1. Standard of Review
Rule 166a(c) entitles a movant to summary judgement if "there is no genuine issue as to any material fact and the moving party is entitled to judgement as a matter of law on the issues expressly set out in the motion or in an answer. . . ." TEX. R. CIV. P. 166a(c). Ordinarily, a party appealing from the granting of summary judgment argues there is a genuine issue of material fact. See, e.g., Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex. 1985). However, the parties in this case do not argue the existence of a fact issue. The issue before us is whether the trial court properly determined as a matter of law the family's wrongful death action is barred.
2. The Statutory and Constitutional Principles
Two statutes govern the family's cause of action for wrongful death. The Texas Wrongful Death Act provides, "This subchapter applies only if the individual injured would have been entitled to bring an action for the injury if he had lived." TEX. CIV. PRAC. & REM. CODE ANN. 71.003(a) (Vernon 1986). The Texas Workers' Compensation Act of 1989 states:
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. Section(s) 408.001(a) (Vernon Supp. 1996) (emphasis added). Unless a decedent would have been entitled to bring a cause of action had he lived, the survivors may not bring one. Russell v. IngersollRand Co., 841 S.W.2d 343, 345 (Tex. 1992). Therefore, the exclusive remedy provision in the workers' compensatio
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