In Re East Texas Medical Center Athens

Supreme Court of Texas
══════════
No. 23-1039
══════════

In re East Texas Medical Center Athens,
Relator

═══════════════════════════════════════
On Petition for Writ of Mandamus
═══════════════════════════════════════

Argued January 28, 2025

JUSTICE BOYD delivered the opinion of the court.

An employee was injured while working for an employer that had
elected not to subscribe to the Texas workers’ compensation program.
When she sued her employer for negligently failing to provide a safe
workplace, the employer moved for leave to designate responsible third
parties under the Texas proportionate-responsibility statute. The
employee did not object, and the trial court granted leave, but the
employee later moved to strike the designation. The trial court granted
the motion, and the court of appeals denied the employer’s request for
mandamus relief. We conclude that the trial court abused its discretion
by striking the designation. We hold that (1) the
proportionate-responsibility statute applies because an employee’s
negligence claim against a nonsubscribing employer is not “an action to
collect workers’ compensation benefits under” the Workers’
Compensation Act, (2) the Act does not prohibit nonsubscribing
employers from designating responsible third parties, and (3) this record
contains sufficient evidence of the third parties’ responsibility. Because
we also conclude that the employer has no adequate remedy by appeal,
we conditionally grant the employer’s petition for mandamus relief.
I.
Background
East Texas Medical Center Athens (ETMC Athens) employed
Sharon Dunn as an emergency-department nurse. Dunn alleges she
sustained a serious back injury when, during one of her shifts, an
emergency medical technician (EMT) who was not an ETMC Athens
employee pushed a stretcher into her. She initially sued the EMT and
his employer, but the trial court dismissed those claims because Dunn
failed to timely serve an expert report as the Texas Medical Liability Act
requires for health care liability claims. 1 While that dismissal motion
was pending, Dunn amended her pleadings to assert negligence claims
against ETMC Athens. After the trial court dismissed the claims against
the EMT and his employer, ETMC Athens moved for leave to designate
them as responsible third parties. 2 Dunn did not object, and the trial
court granted the motion.

1 The trial court initially denied the EMT’s dismissal
motion, but the
court of appeals reversed on interlocutory appeal. See ETMC EMS v. Dunn,
No. 12-19-00152-CV, 2020 WL 562971, at *8 (Tex. App.—Tyler Feb. 5, 2020,
pet. denied) (mem. op.).
2 A responsible third party is “any person who is alleged to have caused

or contributed to causing in any way the harm for which recovery of damages

2
Eleven months later, Dunn moved to strike the designations,
arguing in part that the proportionate-responsibility statute does not
apply because her suit against ETMC Athens is “an action to collect
workers’ compensation benefits under” the Workers’ Compensation Act.
See TEX. CIV. PRAC. & REM. CODE § 33.002(c)(1) (providing that the
proportionate-responsibility statute does not apply to such an action).
The trial court granted the motion, and the court of appeals denied
ETMC Athens’s petition for mandamus relief. In re E. Tex. Med. Ctr.
Athens, ___ S.W.3d ___, 2023 WL 8103959, at *5 (Tex. App.—Tyler Nov.
21, 2023, orig. proceeding). ETMC Athens then petitioned for
mandamus relief in this Court. To obtain such relief, ETMC Athens
must demonstrate that the trial court committed a clear abuse of
discretion by striking the designations and that ETMC Athens has no
adequate remedy by appeal. See In re Xerox Corp., 555 S.W.3d 518, 522
(Tex. 2018) (orig. proceeding). We address each requirement in turn.
II.
Abuse of Discretion
A trial court abuses its discretion if it fails to correctly construe a
statute or apply it to the facts before it. See Walker v. Packer, 827 S.W.2d
833, 840 (Tex. 1992) (“[A] clear failure by the trial court to analyze or
apply the law correctly will constitute an abuse of discretion.”). 3 ETMC

is sought, whether by negligent act or omission, by any defective or
unreasonably dangerous product, by other conduct or activity that violates an
applicable legal standard, or by any combination of these.” TEX. CIV. PRAC. &
REM. CODE § 33.011(6).
3 See also In re Gonzales, 619 S.W.3d 259, 261 (Tex. 2021) (orig.
proceeding) (per curiam) (“A trial court that fails to properly apply a statutory

3
Athens contends that the trial court abused its discretion by striking its
responsible third party designations because (A) the
proportionate-responsibility statute applies to Dunn’s negligence
claims, (B) the Workers’ Compensation Act does not prohibit ETMC
Athens from designating responsible third parties, and (C) the record
contains sufficient evidence that the EMT and his employer were at
least partially responsible for causing Dunn’s injury. We agree.
A. The proportionate-responsibility statute applies.
The Texas proportionate-responsibility statute permits a
defendant in a tort action to seek to reduce its liability for a claimant’s
damages by requiring that the factfinder determine “the percentage of
responsibility” for causing such damages attributable to each claimant,
defendant, settling person, and “responsible third party who has been
designated.” TEX. CIV. PRAC. & REM. CODE § 33.003(a)(1)–(4). Generally,
each defendant is liable only for the percentage of the claimant’s total
damages equal to the defendant’s percentage of responsibility,
id. § 33.013(a), and the claimant cannot recover any damages “if his
percentage of responsibility is greater than 50 percent,” id. § 33.001.4

requirement abuses its discretion. . . .”); In re Dawson, 550 S.W.3d 625, 628
(Tex. 2018) (orig. proceeding) (per curiam) (“[B]ecause a trial court has no
discretion in determining what the law is or in applying it to the facts, a trial
court abuses its discretion if it fails to correctly analyze or apply the law.”).
4 A designated responsible third party is not a party to the action and

incurs no liability as a result of a finding that it was responsible for causing
the harm. TEX. CIV. PRAC. & REM. CODE § 33.004(i); see In re Mobile Mini, Inc.,
596 S.W.3d 781, 784 (Tex. 2020) (orig. proceeding) (per curiam) (“[N]either
designating a person as a responsible third party, nor a finding of fault against
the person, imposes liability on that person or provides a basis to impose
liability on the person in any other proceeding.”).

4
A defendant who desires to designate a responsible third party
must timely file a motion for leave to do so. Id. § 33.004(a), (d). The trial
court must grant a timely motion unless the claimant or another party
objects to the motion within fifteen days. Id. § 33.004(a)–(f). If a party
timely objects, the court still must grant the motion “unless the objecting
party establishes that the defendant failed to adequately plead the facts
establishing the third party’s responsibility, even after receiving an
opportunity to replead those facts.” Gonzales, 619 S.W.3d at 262 (citing
TEX. CIV. PRAC. & REM. CODE § 33.004(g)).
If the trial court grants the motion for leave, a party may later
move to strike the designation if, after adequate time for discovery,
“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 § 33.004(l). The trial court must grant the motion to strike
the designation unless the 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.
ETMC Athens timely moved for leave to designate the EMT and
his employer as responsible third parties, Dunn did not object, and the
trial court granted the motion. But Dunn later moved to strike the
designation, in part on the ground that the proportionate-responsibility
statute does not apply to an employee’s negligence claim against an
employer that elects not to subscribe to the state’s workers’
compensation program. 5 In support, Dunn relies on Section 33.002(c)(1),

5 ETMC Athens argues that (1) Dunn waived this argument by failing

to object to its motion for leave and (2) Section 33.004(l) allows a subsequent

5
which states that the proportionate-responsibility statute “does not
apply to . . . an action to collect workers’ compensation benefits under
the” Texas Workers’ Compensation Act. Id. § 33.002(c)(1). The court of
appeals denied ETMC Athens’s mandamus petition because it agreed
with Dunn that her suit against ETMC Athens is “an action for workers’
compensation benefits.” E. Tex. Med. Ctr. Athens, 2023 WL 8103959,
at *5. We disagree.
The Workers’ Compensation Act protects employees by allowing
them to promptly recover compensation for work-related injuries
without having to prove that their employer was at fault. Kroger Co. v.
Keng, 23 S.W.3d 347, 349–50 (Tex. 2000). The Act permits both
employers and employees to elect whether to participate in the workers’
compensation program. TEX. LAB. CODE §§ 406.002(a), .034; see Port
Elevator-Brownsville v. Casados, 358 S.W.3d 238, 241 (Tex. 2012)
(“[T]he [Act] allows private Texas employers to choose whether to
subscribe to workers’ compensation insurance. . . . Employees of
subscribing employers also have a choice: they may opt out of the system
within the prescribed time and retain their common-law rights.”).
Employers who elect to subscribe must obtain insurance coverage from
a licensed insurer or through self-insurance to provide benefits for an
employee’s compensable injuries. TEX. LAB. CODE § 406.003. If an
employer subscribes to the program and the employee does not opt out,
those benefits are the employee’s “exclusive remedy” for work-related

motion to strike only on the ground that no evidence supports the EMT’s
responsibility for Dunn’s injury. Because we reject Dunn’s argument on the
merits, we need not address these arguments.

6
injuries. Id. § 408.001; see Maxim Crane Works, L.P. v. Zurich Am. Ins.
Co., 642 S.W.3d 551, 555 (Tex. 2022).
If an employer elects not to subscribe to the workers’
compensation program, an injured employee may recover damages from
the employer for work-related injuries by proving the “negligence of the
employer or of an agent or servant of the employer acting within the
general scope of the agent’s or servant’s employment.” TEX. LAB.
CODE § 406.033(d). This is the type of suit Dunn has filed against ETMC
Athens. To encourage employers to subscribe to the program, the Act
penalizes nonsubscribers by prohibiting them from raising as a defense
in such suits that “(1) the employee was guilty of contributory
negligence; (2) the employee assumed the risk of injury or death; or
(3) the injury or death was caused by the negligence of a fellow
employee.” Id. § 406.033(a). Dunn argues that ETMC Athens cannot
designate responsible third parties because a negligence suit against a
nonsubscriber is “an action to collect workers’ compensation benefits”
under the Workers’ Compensation Act and the proportionate-
responsibility statute does not apply to such an action. TEX. CIV. PRAC.
& REM. CODE § 33.002(c)(1).
In support, Dunn relies primarily on the Tyler Court of Appeals’s
decision in Kroger Co. v. Keng, 976 S.W.2d 882 (Tex. App.—Tyler 1998),
aff’d on other grounds, 23 S.W.3d at 352. Appealing from a jury verdict
in favor of its injured employee, the nonsubscribing employer in Keng
complained that the trial court erred by refusing to submit a jury
question inquiring about the employee’s comparative negligence in
causing the injury. 976 S.W.2d at 885. The court of appeals disagreed,

7
holding that the employer could not rely on the employee’s comparative
negligence to reduce its liability because Chapter 33 (which at that time
provided for “comparative” negligence, rather than proportionate
responsibility) did not apply because the employee’s claim was an
“action to collect benefits [and damages] under the workers’
compensation laws of Texas.” Id. at 891 (quoting TEX. CIV. PRAC. & REM.
CODE § 33.002(c)(1)).
In reaching that conclusion, the Keng court relied on subsections
406.033(a) and (d), which require an employee to prove a nonsubscriber’s
negligence and prohibit the nonsubscriber from relying on the
employee’s contributory negligence as a defense. TEX. LAB.
CODE § 406.033(a), (d). Because of these provisions, the court concluded
that an employee’s negligence suit against a nonsubscribing employer is
an action to recover workers’ compensation benefits because it involves
“a statutory burden to prove the negligence of the employer” and is not
“governed solely by common law.” Keng, 976 S.W.2d at 891. “In short,”
the court explained, “all employers are governed by the Texas Workers’
Compensation Act, whether they subscribe or not.” Id.
On review in this Court, the employer in Keng argued that
Chapter 33 applied and permitted it to assert the employee’s
comparative negligence because (1) the suit was not “an action to collect
workers’ compensation benefits” and (2) although Section 406.033(d)
deprives nonsubscribers of the common-law defense of the employee’s
contributory negligence, it does not deprive them of the statutory defense
of comparative responsibility under Chapter 33. 23 S.W.3d at 348–49.
We rejected the employer’s second argument and expressly did not reach

8
the first. Id. at 352 (“[I]n resolving whether the
comparative-responsibility statute applies in a nonsubscriber case, we
need not determine, as Kroger urges, whether a suit [against a
nonsubscriber] under section 406.033 is ‘an action to collect workers’
compensation benefits under the workers’ compensation laws of this
state.’” (quoting TEX. CIV. PRAC. & REM. CODE § 33.002(c)(1))).
We did state in Keng, however, that the Workers’ Compensation
Act permits employees of a nonsubscribing employer to retain “their
common-law rights.” Id. at 350 (emphasis added). In fact, although we
have never expressly addressed the issue of whether an employee’s
negligence suit against a nonsubscriber is “an action for workers’
compensation benefits under the” Workers’ Compensation Act, we have
consistently and repeatedly characterized the Act as protecting
subscribing employers against “common-law” claims6 while leaving
nonsubscribing employers subject to “common-law” claims. 7 As we

6 See, e.g.,Mo-Vac Serv. Co. v. Escobedo, 603 S.W.3d 119, 124 (Tex.
2020) (“[T]he Legislature [through the Act] . . . substitute[d] statutory
remedies for those at common law.”); TIC Energy & Chem., Inc. v. Martin, 498
S.W.3d 68, 72–73 (Tex. 2016) (“[T]he Act prohibits employees from seeking
common-law remedies from their employers by making workers’ compensation
benefits an injured employee’s exclusive remedy.”); Entergy Gulf States, Inc. v.
Summers, 282 S.W.3d 433, 436 (Tex. 2009) (“The Act outlines a process by
which a general contractor qualifies for immunity from common-law tort
claims brought by the employees of its subcontractors.”); Paradissis v. Royal
Indem. Co., 507 S.W.2d 526, 529 (Tex. 1974) (“In providing the worker a form
of prompt remuneration for loss of earning capacity, the statutory scheme is in
lieu of common law liability based on negligence.”).
7 See, e.g., Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 212 (Tex. 2015)

(“[E]mployees . . . must prove all the elements of a common law negligence
claim to prevail against nonsubscribing employers.”); Tex. W. Oaks Hosp.,
L.P. v. Williams, 371 S.W.3d 171, 187 (Tex. 2012) (stating that nonsubscribing

9
explained over one hundred years ago, the Act provides a statutory
“substitute” for “damages ordinarily recoverable at common law or by
statute on account of injuries suffered by an employee or because of his
death, when due to the negligence of the employer or his servants.”
Middleton, 185 S.W. at 558 (emphasis added).
What the Act itself says, however, is of course more important
than anything we may have said in passing. Several provisions confirm
that the Act distinguishes between a statutory “action to collect workers’
compensation benefits under” the Act, which a subscriber’s employee
may bring, and a common-law action to recover damages based on
negligence, which a nonsubscriber’s employee may bring. As we have
noted, Section 406.033 provides that, if an employer opts out and does
not provide workers’ compensation coverage, an injured employee who
wishes to “recover damages for personal injuries or death” must “prove
negligence of the employer” or its agent or servant. TEX. LAB.
CODE § 406.033(a), (d) (emphasis added). Conversely, if the employer
opts in and provides coverage and the employee does not elect to opt out,

employers are “subject to suits at common law for damages” in which
employees “must prove the elements of a common law negligence claim”); Excel
Corp. v. Apodaca, 81 S.W.3d 817, 819 (Tex. 2002) (“Because Excel is a
nonsubscriber under the Workers’ Compensation Act, Apodaca sued
Excel alleging common-law claims of negligence and gross negligence in failing
to provide a safe workplace.”); Lawrence v. CDB Servs., Inc., 44 S.W.3d 544,
549 (Tex. 2001) (characterizing claims against nonsubscriber as “common-law
claims” that employees could choose to waive “in exchange for prescribed
benefits”); Middleton v. Tex. Power & Light Co., 185 S.W. 556, 559 (Tex. 1916)
(“If [employers] do not become subscribers, they are amenable to suits for
damages recoverable at common law or by statute on account of personal
injuries suffered by their employees in the course of their employment, and are
denied the right of making what constitute the common law defenses thereto.”).

10
the employee waives his “right of action at common law or under a
statute of this state to recover damages for personal injuries or death
sustained in the course and scope of the employment.” Id. § 406.034(a).
An employee who does opt out “retains all rights of action under common
law,” including “the common-law right of action to recover damages for
personal injuries or death.” Id. § 406.034(b).8 A subscribing employer
may not require its employees “to retain common-law rights,” but an
employee who chooses to do so may sue the employer “under common
law or under a statute of this state.” Id. § 406.034(c), (d).
The distinction the Act draws between “benefits” recoverable from
a subscriber under the Act and “damages” recoverable under a
negligence claim against a nonsubscriber confirms our conclusion that a
negligence claim against a nonsubscriber is not “an action to collect
workers’ compensation benefits under the Act.” Under the Act, the term
“benefits” refers to specific types of workers’ compensation benefits:
medical benefits, income benefits, death benefits, and burial benefits.
Id. § 401.011(5). A “benefit” is notably different from “damages,” which
are not limited by the statutory definitions and are only recoverable

8 See Tex. W. Oaks, 371 S.W.3d at 187 (explaining that an employee may

opt out and “retain the common-law right of action to recover damages for
personal injuries or death” (citing TEX. LAB. CODE § 406.034(a), (b))); Lawrence,
44 S.W.3d at 552 (“Employees of subscribing employers may choose to opt out
of the system and retain their common-law rights in the event they are injured
on the job.”); Keng, 23 S.W.3d at 350 (“Employers were . . . allowed to opt out
of the system, resulting in their employees retaining their common-law
rights.”); Tex. Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 511 & n.2
(Tex. 1995) (explaining that in the precursor legislation to the Workers’
Compensation Act, the basic structure of which has “never changed,” “[t]hose
[employees] opting out retained their common law right of action, which
remained subject to all common law defenses”).

11
upon a finding of fault on the part of the employer. Id. § 406.033(a), (d).
Dunn seeks by her claims to recover damages from ETMC Athens, not
“benefits.”9 Even if, as Dunn insists, her claim “arises under” the Act
because the Act requires her to prove that ETMC Athens negligently
caused her injuries, her claim is not “an action to collect workers’
compensation benefits” under the Act. 10
Finally, we note that Section 406.002(b) provides that an
employer who subscribes and “elects to obtain [workers’ compensation]
coverage is subject to” the Workers’ Compensation Act. Id. § 406.002(b)
(emphasis added). No similar provision declares that nonsubscribers are
“subject to” the Act. Although some of the Act’s provisions certainly
address and apply to nonsubscribers, nonsubscribers are not “subject to”

9 Dunn seeks damages for “(a) pain and mental anguish; (b) loss of
earnings and earning capacity; (c) physical impairment; (d) physical
disfigurement; (e) necessary medical, therapeutic, pharmaceutical and
hospital care, including rehabilitative services and devices; and (f) punitive
damages.”
10 Dunn also argues Chapter 417 of the Act, which covers third-party
liability, supports her argument that her claim is one for benefits under the
Act. Again, we disagree. Section 417.001(a) allows an employee of a subscribing
employer to seek both “damages from a third party” and “workers’
compensation benefits” from the employer—thereby treating benefits and
damages as inherently separate types of recovery. TEX. LAB. CODE § 417.001(a)
(emphases added). And Section 417.001(b) allows the injured employee to
recover from a third party any damages awarded that are greater than the
amount of the insurance carrier’s subrogation interest, for which the insurer
is entitled to reimbursement—i.e., the employee is entitled to any recovery
from a third party beyond the benefits amount less the insurer’s
reimbursement and costs. Id. § 417.001(b)(1)–(2). The distinctions Chapter 417
draws between damages and benefits demonstrate that damages are broader
than and distinct from benefits and thus confirm that a claim against a
nonsubscriber is not an action to collect benefits.

12
the Act like a subscribing employer. Considering the distinctions the Act
draws between no-fault statutory claims to collect workers’
compensation benefits against subscribers and fault-based negligence
claims to recover damages against nonsubscribers, we conclude that an
employee’s negligence claim against a nonsubscriber is not an “action to
collect workers’ compensation benefits under” the Act. As a result,
Section 33.002(c)(1) does not prevent the proportionate-responsibility
statute from applying to an employee’s negligence claim against a
nonsubscribing employer.
B. The Act does not prohibit designation of responsible third
parties.
As explained, the Act prohibits a nonsubscribing employer from
defending against an employee’s negligence claim by asserting the
employee’s contributory negligence, the employee’s assumption of the
risk, or a fellow employee’s negligence. Id. § 406.033(a)(1)–(3).11 Dunn
contends that, even if her suit is not an action to collect workers’
compensation benefits, Section 406.033(a) prohibits ETMC Athens from
designating responsible third parties. In support, she relies on our
statement in Austin that Section 406.033(a) “prohibits nonsubscribing
employers from relying on defenses like assumption of the risk,

11 A nonsubscriber may, however, “defend the action on the ground that

the injury was caused (1) by an act of the employee intended to bring about the
injury; or (2) while the employee was in a state of intoxication.” TEX. LAB. CODE
§ 406.033(c)(1)–(2). We explained in Lawrence that this subsection (c) does not
“provide an exhaustive list of defenses available to nonsubscribers” but instead
clarifies that subsection (a), which prohibits defenses “based on an employee’s
(or fellow employee’s) fault,” does not “protect employees injured as a result of
their own intoxication or their own intent to bring about the injury.” 44 S.W.3d
at 548.

13
contributory negligence, or proportionate responsibility.” 465 S.W.3d at
210 (emphasis added).
Our paraphrasing of Section 406.033(a) in Austin, however, must
be read in the context of that case, which involved a nonsubscriber’s
efforts to rely on the injured employee’s awareness of the risks to avoid
liability on the employee’s common-law-negligence claim. Within that
context, our statement was intended only to explain that
Section 406.033(a)’s references to “contributory negligence” and
“assumption of the risk” prohibit a nonsubscriber from relying on the
injured employee’s knowledge or negligence to reduce or avoid its
liability under the proportionate-responsibility statute. Id.12
We explained in Austin that since the adoption of the
proportionate-responsibility statute, “[t]he same facts that tended to
prove assumption of the risk or contributory negligence may now be used
to diminish a plaintiff’s recovery by demonstrating that the plaintiff
bore some portion of the responsibility for his own injuries, or even to
preclude the plaintiff from recovering at all by demonstrating that the
plaintiff bore more than 50% of the responsibility for his own injuries.”
Id. (emphases added). And in the next paragraph we explained that
Section 406.033(a) prohibits a nonsubscriber from asserting that “the
employee bears some portion of the responsibility for his own injuries.”

12 See Austin, 465 S.W.3d at 210 n.17 (“Proportionate responsibility
abrogated former common law doctrines that barred a plaintiff’s recovery
because of the plaintiff’s conduct—like assumption of the risk, imminent peril,
and last clear chance—in favor of submission of a question on proportionate
responsibility.” (emphasis added) (citing Dugger v. Arredondo, 408 S.W.3d 825,
832 (Tex. 2013))).

14
Id. (emphasis added). We did not purport in any way to address in
Austin the effect a third party’s responsibility would have on an
employee’s negligence claims against a nonsubscribing employer.
As the context confirms, our statement in Austin merely
recognizes that Section 406.033(a) waives a nonsubscriber’s defenses
that are based on—and thus prohibits proportionate responsibility that
is based on—its employee’s knowledge and negligence. On its face,
Section 406.033(a) does not preclude apportionment generally—it
simply “discourages employers from opting out of workers’ compensation
insurance by prohibiting a nonsubscriber from asserting that its
employee was contributorily negligent, assumed the risk, or that a fellow
employee’s negligence caused the employee’s injuries.” Keng, 23 S.W.3d
at 350 (citing TEX. LAB. CODE § 406.033(a)). We thus conclude that
Section 406.033(a) does not prevent ETMC Athens from designating
responsible third parties under the proportionate-responsibility
statute.13

13 Dunn also contends that Chapter 417 of the Act supports her position

because it creates a separate proportionate-responsibility scheme for
subscribing employers. She argues that this scheme prohibits nonsubscribers
from using proportionate responsibility to reduce their liability because an
employee of a nonsubscribing employer should not be permitted to recover less
from her employer in damages than she would have received in benefits (that
is, the employer’s liability should not be reduced, based on proportionate
responsibility, to less than what it would have otherwise paid in benefits), as
that would be contrary to the intent of the Act. See TEX. LAB. CODE § 417.001.
We disagree because (1) Chapter 417 applies only to subscribers and does not
act as a limit on nonsubscribers and (2) third-party liability does not deplete a
nonsubscriber’s employee’s recovery in contravention of the Act, it only
determines how much the employer is required to contribute.

15
C. Sufficient evidence of the third parties’ responsibility exists.
Finally, ETMC Athens argues that the trial court abused its
discretion because the record contains at least some evidence that the
EMT and his employer bear some responsibility for causing Dunn’s
injuries. The proportionate-responsibility statute does not permit the
determination of a responsible third party’s responsibility “without
sufficient evidence to support the submission.” TEX. CIV. PRAC. & REM.
CODE § 33.003(b). For this reason, a trial court must grant a motion to
strike a designation if, after adequate time for discovery, the defendant
fails to produce “sufficient evidence to raise a genuine issue of fact
regarding the designated person’s responsibility for the claimant’s
injury or damage.” Id. § 33.004(l).
ETMC Athens contends that the record contains sufficient
evidence to create a fact issue on the EMT’s and his employer’s
responsibility for causing Dunn’s injuries. Specifically, it relies on

Section 417.001(b) applies only “[i]f a benefit is claimed by an injured
employee or legal beneficiary of the employee”—meaning it is only applicable
where the employer is a subscriber because only then can an employee claim
benefits under the Act. Id. § 417.001(b). And when it applies, “the insurance
carrier is subrogated to the rights of the injured employee and may enforce the
liability of the third party in the name of the injured employee or the legal
beneficiary.” Id. Again, the text makes clear that Chapter 417 applies solely to
subscribers, as nonsubscribers do not carry such insurance coverage. And
“[t]he insurance carrier’s subrogation interest is limited to the amount of the
total benefits paid or assumed by the carrier to the employee or the legal
beneficiary,” less any reduction for proportionate responsibility attributable to
the employer, meaning this chapter is only relevant where a subscribing
employer’s insurance carrier has paid out benefits. Id. Thus, Chapter 417
governs third-party liability when the employee is covered by workers’
compensation. Further, proportionate responsibility does not decrease Dunn’s
recovery, it simply determines the amount that ETMC Athens must pay.

16
evidence submitted by Dunn herself, including expert testimony on the
EMT’s duties, breach, and causation; testimony from Dunn and her
co-worker (both emergency-department nurses) that the EMT
negligently harmed Dunn; the EMT’s own admission that, if he did what
Dunn accused him of doing (which he denied), he would have been
negligent and violated an EMT’s standard of care; and Dunn’s treating
physicians’ testimony that a strike from a stretcher caused her injuries.
In response, Dunn argues that ETMC Athens must produce its
own expert testimony to establish an EMT’s standard of care and that
the EMT caused Dunn’s injuries by violating that standard. Relying on
the Tyler Court’s decision dismissing her own claims against the EMT
because she failed to timely provide an expert report, Dunn argues that
the Texas Medical Liability Act and the “law of the case” require ETMC
Athens to provide its own expert report supporting the EMT’s
responsibility. “As ETMC Athens did not designate an expert on any
topic,” she argues, “there is no such evidence in the record.”
We disagree. To begin, the Tyler Court dismissed Dunn’s claims
against the EMT and his employer because the Medical Liability Act
required her, as a “claimant,” to timely produce expert reports
supporting her health care liability claims. See ETMC EMS, 2020 WL
562971, at *8; see also TEX. CIV. PRAC. & REM. CODE § 74.001(a)(2)
(“‘Claimant’ means a person . . . seeking or who has sought recovery of
damages in a health care liability claim.”), (13) (“‘Health care liability
claim’ means a cause of action against a health care provider or
physician . . . .”). But because ETMC Athens is not a “claimant”
asserting a health care liability claim, the Medical Liability Act does not

17
apply and does not require it to produce expert reports. See Tex. W. Oaks,
371 S.W.3d at 178–79 (“Only claimants are obligated to serve expert
reports on physicians or health care providers” and “a ‘claimant’ is
broadly defined as a ‘person’ . . . bringing [a health care liability claim].”
(citing TEX. CIV. PRAC. & REM. CODE § 74.001(a)(2))).
Dunn argues, however, that the Tyler Court’s holding that she
could not establish her health care liability claims against the EMT
without expert testimony is now binding on ETMC Athens’s attempt to
assign responsibility to the EMT as well. But ETMC Athens is not
asserting a health care liability claim under the Medical Liability Act,
and any finding of responsibility on the part of the EMT or his employer
will impose no liability on them. See TEX. CIV. PRAC. & REM. CODE
§ 33.004(i). Moreover, at this point, the proportionate-responsibility
statute only requires ETMC Athens to submit sufficient evidence to
create a fact issue regarding the EMT’s responsibility. See id.
§ 33.004(l); see also Gregory v. Chohan, 670 S.W.3d 546, 566 (Tex. 2023)
(plurality op.) (“The similarity between the statutory
responsible-third-party standard and the no-evidence summary
judgment standard is obvious.”). Neither the Medical Liability Act nor
the proportionate-responsibility statute require ETMC Athens to
produce expert testimony to create a fact issue sufficient to survive
Dunn’s motion to strike. See TEX. R. CIV. P. 166a(i) cmt. (“To defeat a
motion made under paragraph (i), the respondent is not required to
marshal its proof; its response need only point out evidence that raises
a fact issue on the challenged elements.”).

18
We need not further detail the evidence here. Having reviewed
the record, we conclude that it contains sufficient evidence to create a
fact issue regarding the EMT’s and his employer’s responsibility for
causing Dunn’s injuries. See Sw. Elec. Power Co. v. Grant, 73 S.W.3d
211, 215 (Tex. 2002); see also King Ranch, Inc. v. Chapman, 118 S.W.3d
742, 751 (Tex. 2003) (“[A] no-evidence summary judgment is improperly
granted if the respondent brings forth more than a scintilla of probative
evidence to raise a genuine issue of material fact.”).
Because the proportionate-responsibility statute applies to an
employee’s negligence claim against a nonsubscribing employer, the
Workers’ Compensation Act does not prohibit the employer from
designating responsible third parties, and sufficient evidence supports
the designation here, we conclude that the trial court abused its
discretion in construing and applying the law when it granted Dunn’s
motion to strike ETMC Athens’s designation of the EMT and his
employer as responsible third parties.
III.
No Adequate Remedy by Appeal
ETMC Athens is only entitled to mandamus relief if, in addition
to demonstrating a clear abuse of discretion, it establishes that it has no
adequate remedy by appeal. In re Coppola, 535 S.W.3d 506, 508 (Tex.
2017) (orig. proceeding) (per curiam). We held in Coppola that a
defendant who shows that the trial court abused its discretion by
denying a motion for leave to designate responsible third parties
necessarily lacks an adequate appellate remedy because the improper
denial “would skew the proceedings, potentially affect the outcome of the
litigation, and compromise the presentation of the relator’s defense in

19
ways unlikely to be apparent in the appellate record.” Id. at 509–10
(citing In re CVR Energy, Inc., 500 S.W.3d 67, 81–82 (Tex. App.—
Houston [1st Dist.] 2016, orig. proceeding [mand. denied])). We have
since reaffirmed this holding in a number of similar cases. See, e.g., In
re YRC Inc., 646 S.W.3d 805, 810 (Tex. 2022) (orig. proceeding) (per
curiam); Gonzales, 619 S.W.3d at 264–65; Mobile Mini, 596 S.W.3d at
787–88.
Although Coppola addressed the erroneous denial of an initial
motion for leave to designate a responsible third party, we have noted
that a court’s erroneous striking of a party’s RTP designation is at least
“arguably analogous.” In re Eagleridge Operating, LLC, 642 S.W.3d 518,
526 (Tex. 2022) (orig. proceeding) (denying mandamus relief because the
trial court properly struck the designation). In both situations, the
denial of relief would impair the defendant’s “significant right” to “allow
the fact finder to determine the proportionate responsibility of all
responsible parties.” And in both situations, the same substantive right
is involved. We conclude that, by demonstrating that the trial court
abused its discretion by striking its designation of the EMT and his
employer as responsible third parties, ETMC Athens has necessarily
demonstrated that it lacks an adequate appellate remedy.
IV.
Conclusion
Having concluded that the trial court abused its discretion by
striking ETMC Athens’s designation of responsible third parties and
that ETMC Athens lacks an adequate remedy by appeal, we
conditionally grant mandamus relief and order that the trial court
vacate that order.

20
Jeffrey S. Boyd
Justice

OPINION DELIVERED: April 25, 2025

21