The Houston [14th] Court of Appeals has granted mandamus relief to the statutory employer of an injured employee of a subcontractor.
In re ExxonMobil Corp. (No. 14-25-00446-CV; December 18, 2025) arose from injuries sustained by an employee of subcontractor Brown & Root Industrial Services who was working at ExxonMobil’s Baton Rouge facility. The employee sued Exxon in Harris County district court for negligence, gross negligence, and premises liability. Exxon asserted the exclusive-remedy defense under the Workers’ Compensation Act and moved for traditional summary judgment. Plaintiff amended his petition to add a claim for intentional torts, seeking to circumvent the exclusive-remedy defense. Exxon filed a second amended motion for traditional and no-evidence summary judgment. The trial court denied the motion. Exxon sought mandamus relief.
In an opinion by Justice Jewell, the court of appeals granted relief. To “defeat a common-law claim for personal injury damages,” Justice Jewell observed, “a defendant must show that (1) it was the plaintiff’s employer within the meaning of the Act; and (2) it subscribed to workers’ compensation insurance” (citation omitted). Here Exxon provided Brown & Root and its employees with workers’ compensation coverage, thus becoming Plaintiff’s “statutory employer” for workers’ compensation coverage. Plaintiff’s intentional tort claim would fall outside statutory employer immunity, however, “if the employee can establish the employer’s specific intent to inflict such injuries” (citing Mo-Vac Serv. Co., Inc. v. Escobedo, 603 S.W.3d 119, 125, 128 (Tex. 2020). Under this standard, “an employer must believe that its actions are substantially certain to result in a particular injury to a particular employee, not merely highly likely to increase overall risks to employees in the workplace.”
Once Exxon proved a written agreement existed to provide workers’ compensation insurance to Brown & Root employees and that Brown & Root had enrolled in Exxon’s OCIP, the burden shifted to Plaintiff to produce more than a scintilla of evidence raising a genuine issue of material fact as to one or more of the challenged elements. The court brushed aside Plaintiff’s arguments that a Texas workers’ compensation policy didn’t apply to injuries occurring in Louisiana (Plaintiff, after all, was a Texas resident) or that the trial court couldn’t grant summary judgment without determining whether Louisiana or Texas law governing the exclusive-remedy issue applied (no relevant conflict between the laws of those states existed here). As to the negligence claims, consequently, the court ruled that the trial court abused its discretion in denying Exxon’s MSJ.
Turning to the intentional-tort exception, the court held that Plaintiff did not raise a material fact issue, either. Noting that the “determinative factor must be ‘not the gravity or depravity of the employer’s conduct but rather the narrow issue of intentional versus accidental quality of the injury,” the court stated “[t]he common-law liability of the employer cannot be stretched to include accidental injuries—even those caused by the gross, wanton, willful, deliberate, intentional, reckless, culpable, or malicious negligence, breach of statute, or other misconduct—as such conduct falls short of ‘genuine intentional injury.’” Under this standard, even the “intentional failure to furnish a safe place to work does not rise to the level of intentional injury except when the employer believes [its] conduct is substantially certain to cause the injury” to the specific employee.
Here Plaintiff alleged that during a turnaround, he was assigned to work within the confines of a vessel used to process petroleum naphtha, which Exxon defined as having “the potential to contain specific and elevated safety and health hazards or problematic rescue and/or escape concerns.” Plainbtiff presented evidence that Exxon issued a work permit for “hot work” inside the vessel “knowing that residual naphtha (fuel) and oxygen were present.” A flash fire, Plaintiff alleged, thus became “inevitable” because of Exxon’s intentional conduct. Plaintiff submitted an affidavit from an expert to that effect, as well as that Exxon failed to conduct a safety analysis before permitting the work. According to Plaintiff, “the totality of the evidence show[ed] that ExxonMobil committed a series of intentional acts that ‘put [him] in the zone of danger where a fire would inevitably occur with no warning of the hazards and no way to protect himself.’” Even taking the evidence as true, however, the court found that it didn’t show that Exxon had the necessary intent for the intentional-tort exception to apply. At most, the evidence showed that “Exxon believed that a flash fire inside the vessel resulting in injuries to a worker at some point in time was possible. It show[ed] neither that ExxonMobil believed that a specific flash fire was substantially certain to occur when it did nor that it would result in injuries to [Plaintiff] or another small group of potential workers.”
The court observed that Exxon showed that workers had performed hot work in the vessel without incident in the days prior to the accident and that performed continuous gas monitoring showing that no hazardous materials were present in the vessel on the day of the accident. Plaintiff’s evidence also failed to “narrow the time frame in which ExxonMobil allegedly knew or believed the flash fire would occur, but leaves it impermissibly indefinite.” Simply showing that anyone working in the vessel was at risk at all times was not enough. The trial court thus abused its discretion by denying Exxon’s MSJ on all claims. It ruled further that Exxon had no adequate remedy on appeal, since “the Act’s exclusive-remedy defense … is an important substantive right held by ExxonMobil for providing workers’ compensation insurance to [Plaintiff]. Forcing Exxon to endure the time and expense of trial before mounting a direct appeal “would not only defeat [its] substantive right but also undermine the ultimate purpose of our state’s workers’ compensation scheme.”
We should note that yesterday SCOTX denied a similar mandamus request by Shell USA, Shell Chemical, and BrandSafeway in another Harris County case [In re Shell USA, Inc., Shell Chemical, L.P., and BrandSafway, LLC (No. 26-0001; January 5, 2026.)
