In Re: East Texas Medical Center Athens v. the State of Texas

NO. 12-23-00263-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN RE: §

EAST TEXAS MEDICAL CENTER § ORIGINAL PROCEEDING
ATHENS,
§
RELATOR

MEMORANDUM OPINION

Relator, East Texas Medical Center Athens (ETMC Athens), filed this original
proceeding to challenge Respondent’s order striking its designation of responsible third parties. 1
We deny the writ.

BACKGROUND
Sharon Dunn, Real Party in Interest, alleges she was injured while working in the
emergency department at ETMC Cedar Creek Lake on November 20, 2017. She contends that
when she was giving a report to a paramedic at the nurse’s station, an emergency medical
technician named Gary Woolverton pushed an empty stretcher into her back. Dunn claims the
impact propelled her forward and caused her to immediately feel intense pain from her back
down her left leg and into her foot. She subsequently underwent back surgery and claims to
suffer from a permanent disability as a result of the injury.
Dunn initially sued Woolverton and his employer, ETMC EMS. At that time, she did not
name her employer, ETMC Athens, as a defendant. 2 After the deadline for filing expert reports

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Respondent is the Honorable Jason Ellis, Judge of the County Court at Law in Smith County, Texas.
2
ETMC Cedar Creek Lake was a facility under the ETMC Athens umbrella, and Dunn was assigned to
work there at the time of the incident.
under the Texas Medical Liability Act (TMLA) passed, Woolverton and ETMC EMS filed a
motion to dismiss Dunn’s claims under the TMLA, alleging they were health care liability claims
requiring expert reports. The trial court denied the motion following a hearing. On appeal, this
Court determined the claims against Woolverton and ETMC EMS were health care liability
claims requiring expert reports. Because Dunn had not complied with the TMLA, this Court
ordered the claims against Woolverton and ETMC EMS be dismissed with prejudice. 3
Between the filing of the motion to dismiss and corresponding hearing, Dunn amended
her petition to include allegations that ETMC Athens failed to provide a safe place to work and
was negligent at the time of the incident. ETMC Athens is a nonsubscriber to workers’
compensation. Following the dismissal of Dunn’s claims against Woolverton and ETMC EMS,
ETMC Athens filed a motion to designate them as responsible third parties. Dunn did not object,
and Respondent granted the motion.
Eleven months later, Dunn filed a motion to strike the designation of responsible third
parties. She urged, in part, that Chapter 33 of the Civil Practice and Remedies Code, which
includes the responsible third party statute, does not apply to the case because it is an action to
collect benefits under the workers’ compensation laws of Texas. In response, ETMC Athens
argued, in part, that Dunn waived her objections to the designations, Dunn failed to argue there
was no evidence supporting the designations, and that its status as a nonsubscriber does not alter
the availability of a responsible third party designation. After conducting two hearings,
Respondent granted the motion to strike. This original proceeding followed.

AVAILABILITY OF MANDAMUS
Mandamus is an extraordinary remedy. In re Sw. Bell Tel. Co., L.P., 235 S.W.3d 619,
623 (Tex. 2007). Generally, a writ of mandamus will issue only when the relator has no
adequate remedy by appeal and the trial court committed a clear abuse of discretion. In re
Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005). The relator has the burden of
establishing these prerequisites, and this burden is a heavy one. In re Fitzgerald, 429 S.W.3d
886, 891 (Tex. App.—Tyler 2014, orig. proceeding.); see In re EPIC Holdings, Inc., 985
S.W.2d 41, 56 (Tex. 1998).

3
ETMC EMS v. Dunn, No. 12-19-00152-CV, 2020 WL 562971, at *6, 8 (Tex. App.—Tyler Feb. 5, 2020,
orig. proceeding) (mem. op.).

2
A trial court abuses its discretion when it acts in an unreasonable or arbitrary manner or,
stated differently, when it acts without reference to guiding rules and principles. See In re
Colonial Pipeline Co., 968 S.W.2d 938, 941 (Tex. 1998). When a trial court fails “to analyze or
apply the law correctly,” it has clearly abused its discretion. Walker v. Packer, 827 S.W.2d 833,
840 (Tex. 1992). “The trial court has no discretion in determining the law or applying the law to
the facts.” In re Sherwin-Williams Co., 668 S.W.3d 368, 370 (Tex. 2023). However, when
considering a writ of mandamus, “we focus on the result reached by the trial court rather than its
reasons.” In re Stevens, 971 S.W.2d 757, 760 (Tex. App.—Beaumont 1998, orig. proceeding).
If the trial court expresses an incorrect legal reason for its ruling, we will nevertheless uphold the
order on any other grounds supported by the record. Luxenberg v. Marshall, 835 S.W.2d 136,
141–42 (Tex. App.—Dallas 1992, orig. proceeding).
Because the erroneous denial of a motion for leave to designate a responsible third party
skews the proceedings, potentially affects the litigation’s outcome, and compromises the defense
in ways unlikely to be apparent in the appellate record, such an error ordinarily renders the
appellate remedy inadequate. In re Coppola, 535 S.W.3d 506, 509–10 (Tex. 2017). The same
problems arise when a trial court erroneously grants a motion to strike a responsible third party
designation. In re Molina, 575 S.W.3d 76, 79 (Tex. App.—Dallas 2019, orig. proceeding).
Thus, we conclude, the appellate remedy is also ordinarily inadequate when a trial court commits
such an error.

ABUSE OF DISCRETION
ETMC Athens contends Respondent abused his discretion when it granted Dunn’s
motion to strike the designation of Woolverton and ETMC EMS as responsible third parties.
Applicable Law
Texas law allows a tort defendant to designate a person as a “responsible third party.”
TEX. CIV. PRAC. & REM. CODE ANN. § 33.004(a) (West 2020). The designation’s purpose is to
have the responsible third party submitted to the trier of fact as a possible cause of the claimant’s
harm. See id. § 33.003 (West 2020). This may reduce the percentage of responsibility attributed
to the defendant, thus ultimately reducing its liability to the claimant. See id. § 33.013 (West
Supp. 2022); Flack v. Hanke, 334 S.W.3d 251, 262 (Tex. App.—San Antonio 2010, pet. denied)

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(“[T]he defendant typically would be the party seeking to retain the RTP in the jury charge to
diminish his potential liability and perhaps eliminate any joint and several liability.”).
Once a responsible third party has been designated, and after an adequate time for
discovery has passed, a party may move to strike the designation “on the ground that there is no
evidence that the designated person is responsible for any portion of the claimant’s alleged injury
or damage.” TEX. CIV. PRAC. & REM. CODE ANN. § 33.004(l). “The court shall grant the motion
to strike unless a defendant produces sufficient evidence to raise a genuine issue of fact
regarding the designated person’s responsibility for the claimant’s injury or damage.” Id. Thus,
the question for the trial court is whether the defendant produced sufficient evidence, more than a
scintilla, for a reasonable jury to find the responsible third party responsible for a portion of the
claimant’s injury or damages. In re Transit Mix Concrete & Materials Co., No. 12-13-00364-
CV, 2014 WL 1922724, at *3 (Tex. App.—Tyler May 14, 2014, orig. proceeding) (mem. op.).
The trial court’s ruling on a motion to strike presents a legal question. See Ham v.
Equity Residential Prop. Mgmt. Servs., Corp., 315 S.W.3d 627, 631 (Tex. App.—Dallas 2010,
pet. denied). Thus, our review, even under the abuse of discretion mandamus standard, is de
novo. See In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009) (“Under an abuse of
discretion standard, we defer to the trial court’s factual determinations if they are supported by
evidence, but we review the trial court’s legal determinations de novo.”).
Analysis
Dunn urges that Chapter 33 itself prohibits ETMC Athens from designating responsible
third parties. As relevant here, the proportionate responsibility chapter, Chapter 33, does not
apply to “an action to collect workers’ compensation benefits under the workers’ compensation
law of this state (Subtitle A, Title 5, Labor Code).” TEX. CIV. PRAC. & REM. CODE ANN.
§ 33.002(c)(1) (West 2020). ETMC Athens, on the other hand, urges that Section 33.002 is
inapplicable in this case because it is a nonsubscriber and nonsubscriber cases arise out of
common law and not the “workers’ compensation law of this state.”
The question then becomes whether a suit against a nonsubscribing employer constitutes
“an action to collect workers’ compensation benefits under the workers’ compensation law.” In
support of its assertion that it does not, ETMC Athens contends the Texas Supreme Court has
opined that nonsubscriber cases arise out of common law and not the Texas Workers’
Compensation Act (TWCA). See Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 212-13 (Tex.

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2015). However, in Austin, the Texas Supreme Court clarified the duty rules in premises
liability cases on a certified question from the Fifth Circuit. Id. at 202. As such, the Court held
that the TWCA’s waiver of a nonsubscriber’s defenses has no bearing on the analysis of an
employer’s duty. Id. And the Court further held that, even with the TWCA’s waiver of
defenses, an employee must still prove all elements of a claim to prevail. Id. at 212-13.
Specifically, the Court stated as follows:

Although the TWCA’s waiver of defenses is intended to encourage employers to subscribe to the
workers’ compensation system, the TWCA does not create an “especially punitive litigation
regime for non-subscribing employers.” Absent intentional misconduct, employees still must
prove all the elements of a common law negligence claim to prevail against nonsubscribing
employers. “In other words,” as the Fifth Circuit observed in this case, TWCA “section
406.033(a)(1)–(3) may limit an employer’s defenses, but it does not eliminate an employee’s
burden to establish his common law claim.” This burden, of course, includes the burden to prove
that a defendant had a duty to the plaintiff, which is the issue that our general rule and exceptions
address.

Id. (internal citations omitted). Essentially, the Court clarified that, unlike cases in which an
employer is a subscriber to workers’ compensation, an employee must prove negligence against
a nonsubscribing employer.
ETMC further cites to a Fifth Circuit case stating that “a cause of action does not arise
under workers’ compensation laws merely because the workers’ compensation statute deprives
the defendant of certain defenses to the cause of action.” Am. Int’l Specialty Lines Ins. Co. v.
Rentech Steel, L.L.C., 620 F.3d 558, 568 (5th Cir. 2010) (quoting Eurine v. Wyatt Cafeterias,
Inc., Civ. A. No. 3-91-0408-H, 1991 WL 207468 at *2 (N.D. Tex. Aug. 21, 1991)). But in that
case, the Fifth Circuit reviewed a summary judgment and made an “Erie guess” as to whether an
employee’s negligence claim against a nonsubscriber imposes an “obligation” under workers’
compensation law. Id. at 563-64. In addition, we are not bound by decisions from the Fifth
Circuit. See Penrod Drilling Corp. v. Williams, 868 S.W.2d 294, 296 (Tex. 1993).
But we are bound by our own precedent. See, e.g., Dyer v. Medoc Health Servs., LLC,
573 S.W.3d 418, 427 (Tex. App.—Dallas 2019, pet. denied) (“[A]bsent an intervening change in
law, we follow our own precedent.”). This Court was previously asked whether a negligence
case against a nonsubscriber is a workers’ compensation case in Kroger Co. v. Keng, 976 S.W.2d

5
882 (Tex. App.—Tyler 1998), aff’d, 23 S.W.3d 347 (Tex. 2000). 4 In that case, Kroger sought to
limit its liability in asserting comparative negligence against Keng, its employee. Id. at 888. In
attempting to determine whether the proportionate responsibility statute in Section 33.001
conflicted with the TWCA, we held that “when an employee files suit against a nonsubscribing
employer, that suit is ‘an action to collect benefits [and damages] under the workers’
compensation laws of Texas.’” Id. at 891. Two reasons supported this determination. First,
under the TWCA, an employee has a statutory burden to prove the employer’s negligence. Id.
(citing TEX. LABOR CODE ANN. § 406.033(d) (West 2006)). Therefore, under the statute, if the
employee is the sole cause of the injury, he cannot recover pursuant to the statute even without
the defense of contributory negligence. Id. “Consequently, an employee’s negligence action
against his nonsubscribing employer is brought ‘under the workers’ compensation laws of
Texas,’ not only common law.” Id. Second, a nonsubscriber is statutorily prohibited from
asserting certain common law defenses in a personal injury action brought by an employee. Id.
(citing TEX. LABOR CODE ANN. § 406.033(a)). “It is ‘by the terms of [Texas Workers’
Compensation] law” that an employer is deprived of the defenses of contributory negligence,
assumed risk, and fellow servant negligence. Id.
When the Texas Supreme Court reviewed the case, it focused on the statutory preclusion
of contributory negligence in the TWCA. Keng II, 23 S.W.3d at 352. And the Court expressly
did not determine whether a suit under Section 406.033 is “an action to collect workers’
compensation benefits under the workers’ compensation laws of this state.” Id.
ETMC Athens also points us to a case from our sister court in Dallas, Russell v. Wendy’s
Int’l, Inc., 219 S.W.3d 629 (Tex. App.—Dallas 2007, pet. dism’d). This case is distinguishable
from the facts presented herein. In Russell, the Dallas Court had to determine whether a claim of
an employee against a nonsubscribing employer is barred by the running of the two-year statute
of limitations or whether the savings provision of the responsible third party statute permitted
him to pursue his claims. Id. at 631. Russell, the employee, sought to join his employer,
Wendy’s, to the suit after the statute of limitations had run after a different defendant brought a
third-party action against Wendy’s. Id. at 632. After analyzing both Keng I and Keng II, the
Russell court determined that the issue before it, “respecting the statute of limitations and the

4
For purposes of this opinion, we will henceforth refer to our decision as Keng I and the Texas Supreme
Court’s decision as Keng II. See Kroger v. Keng, 976 S.W.2d 882 (Tex. App.—Tyler 1998), aff’d, 23 S.W.3d 347
(Tex. 2000).

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‘saving’ clause in § 33.004(e),” was distinct from the issue presented in the Keng cases. Id. at
640. It declined to adopt our reasoning in Keng I because it “is not the issue we address today.”
Id. at 641. And it ultimately concluded that the Keng decisions “do not preclude application of
the ‘saving’ provision of § 33.004(e)” to the employee’s claims against his employer. Id. at 642.
When construing a statute, courts use the ordinary meaning of terms unless the
Legislature provided a definition. TEX. GOV’T CODE ANN. § 311.011 (West 2013); Hopkins v.
Spring I.S.D., 736 S.W.2d 617, 619 (Tex. 1987). And the ultimate goal in any statutory
construction is to give effect to the intent of the Legislature to the greatest degree possible. TEX.
GOV’T CODE ANN. § 311.021, 311.023 (West 2013). We cannot ignore the Legislature’s
direction that the proportionate responsibility chapter does not apply to certain actions. See TEX.
CIV. PRAC. & REM. CODE ANN. § 33.002(c). Furthermore, we recognize that designation of a
responsible third party is not listed in the TWCA as a prohibited defense for nonsubscribers. See
TEX. LABOR CODE ANN. § 406.033(a). However, under the express terms of the TWCA, an
employee must still prove that her employer was negligent to prevail at trial. TEX. LABOR CODE
ANN. § 406.033(d). If a third party was ultimately responsible, an employer may still be able to
defeat an employee’s negligence claim.
We previously determined that a negligence case against a nonsubscribing employer is an
action for workers’ compensation benefits under the TWCA. Keng I, 976 S.W.2d at 891. That
decision has not been overruled. Therefore, under the facts of this case, designation of a
responsible third party under Section 33.004 is barred under the express terms of the statute.
Based on this reasoning, the trial court did not abuse its discretion in striking the designation of
responsible third parties. Consequently, ETMC Athens fails to establish its entitlement to
mandamus relief.

DISPOSITION
Having determined that no abuse of discretion occurred under the facts of this case, we
deny ETMC Athens’s petition for writ of mandamus. We lift our stay of October 11, 2023.
JAMES T. WORTHEN
Chief Justice

Opinion delivered November 21, 2023.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

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COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

NOVEMBER 21, 2023

NO. 12-23-00263-CV

EAST TEXAS MEDICAL CENTER ATHENS,
Relator
V.

HON. JUDGE JASON A. ELLIS,
Respondent

ORIGINAL PROCEEDING

ON THIS DAY came to be heard the petition for writ of mandamus filed by East
Texas Medical Center Athens; who is the relator in appellate cause number 12-23-00263-CV and
a defendant in trial court cause number 68714, pending on the docket of the County Court at Law
of Smith County, Texas. Said petition for writ of mandamus having been filed herein on October
11, 2023, and the same having been duly considered, because it is the opinion of this Court that
the writ should not issue, it is therefore CONSIDERED, ADJUDGED and ORDERED that the
said petition for writ of mandamus be, and the same is, hereby denied.

James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.