The Texas Supreme Court has issued an emergency stay in a case in which the trial court struck a non-subscriber’s designation of responsible third parties in a negligence lawsuit brought by the non-subscriber’s employee.

In re East Texas Medical Center Athens (No. 23-1039; stay issued March 15, 2024) arose from a workplace injury allegedly suffered by an employee in the emergency department at the hospital. The employee was giving a report to a paramedic at the nurse’s station when an EMT hit her in the back with an empty stretcher. The employee sued the EMT and his employer, East Texas Medical Center EMS. Ultimately, her claims were dismissed after the Tyler Court of Appeals held that they were health care liability claims under Chapter 74 for which expert reports should have been served. While the Chapter 74 motions to dismiss were pending in the trial court, the employee amended her petition to add ETMC, her employer, as a defendant. ETMC does not subscribe to workers’ compensation, so after the dismissal of the employee’s claims against the EMT and his employer, ETMC filed a motion to designate them as responsible third parties. Almost a year later, the employee objected and moved to strike the designation on the basis that her suit was for workers’ compensation benefits for which naming RTPs is statutorily barred. The trial court granted the motion to strike. ETMC filed a petition for writ of mandamus in the Tyler Court of Appeals.

The court of appeals denied the petition on the basis that § 33.002(c)(1), CPRC, excludes from Chapter 33 proportionate responsibility “an action to collect workers’ compensation benefits under the workers’ compensation laws of this state (Subtitle A, Title 5, Labor Code).” ETMC argued that under SCOTX precedent, suits against nonsubscribing employers arise out of common law, not the Workers’ Compensation Act, so Chapter 33 should apply. The court disagreed, citing its binding precedent in Kroger Co. v. Keng, 976 S.W.2d 882 (Tex. App.—Tyler 1998), aff’d, 23 S.W.3d 347 (Tex. 2000). In Keng, the nonsubscribing employer asserted comparative negligence against its employee. The court held that because the Workers’ Compensation Act deprives a nonsubscriber of the defenses of contributory negligence, assumed risk, and fellow servant negligence, the injured employee’s lawsuit arises under both common law and the WCA. Additionally, it reasoned that since the WCA requires the injured employee to prove the employer’s negligence, “he cannot recover pursuant to the statute even without the defense of contributory negligence.” Even if the nonsubscribing employer cannot designate RTPs under Chapter 33, the employer can still defeat the negligence claim by establishing that a third party was responsible.

ETMC’s mandamus petition remains pending before the Court.

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