Court of Appeals Rejects Employer’s Exclusive Remedy Defense

A Houston Court of Appeals has determined that a fact question over an employee’s employment status precluded an alleged employer from obtaining dismissal of a suit filed by the company’s purported employee. The decision Kaplowitz v. Lone Star Tan et al.. (Tex. Ct. App.—Houston [14^th Dist.], No. 14-20-00329-CV) October 19, 2021, reversed the judgment in part and remanded the case for further proceedings.

Kaplowitz was employed in a tanning salon named Palm Beach Tan. She alleged that while she was working at the store and talking on the phone with her store manager, the manager “lost her temper and verbally assaulted Kaplowitz.” Kaplowitz claims she then experienced a non-epileptic seizure, which caused her to fall and hit her head. She claimed in her petition that, due to a previous brain injury, she experienced seizures when subjected to stressful situations. On the day of the incident the manager filed an injury report, which listed Lone Star Tan GP (“Lone Star”), LST Austin I, LTD (“LST”), as Kaplowitz’s employers.

Kaplowitz filed suit against Lone Star, LST, and the manager alleging causes of action sounding in intentional infliction of emotional distress and negligence. Kaplowitz also alleged that Lone Star and LST were vicariously liable for the actions of their employee. The defendants filed answers asserting, inter alia, that their liability for Kaplowitz’s negligence claims was precluded by the exclusive remedy provision of the Texas Workers’ Compensation Act. The trial court granted the employers’ motion for summary judgment and dismissed the case.

On appeal, the court described the boundaries of the exclusive remedy defense:

If the employer is a subscriber, the TWCA allows employees to recover workers’ compensation benefits for injuries in the course and scope of employment without proving fault by the employer and without regard to their negligence or that of their coworkers. In exchange, the TWCA prohibits an employee from seeking common law remedies from his employer for personal injuries sustained in the course and scope of his employment. 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.

Lone Star and LST asserted they both employed Kaplowitz and that they were both covered by workers’ compensation insurance. Thus, the defendants argued, they were both entitled to claim the exclusive remedy defense. Kaplowitz argued that a genuine issue of material fact on her employment status precluded the court from granting the summary judgment. The court of appeals agreed.

The summary judgment evidence also includes a workers’ compensation insurance policy listing the insured as LST. The policy contains no mention of Lone Star. The policy also does not list the premises on which Kaplowitz was working when she was allegedly injured.

Lone Star and LST assert they have established they were both named insureds on the policy, which provided workers’ compensation insurance coverage invoking the TWCA. Under that argument, even if LST was not Kaplowitz’s employer the exclusivity defense would apply. The record reflects, however, that LST was the named insured on the policy, not Lone Star. The policy lists several workplaces as “Named Insured Workplaces.” The location where Kaplowitz was injured does not appear on the list of insured workplaces. In their brief on appeal, Lone Star and LST argue that Kaplowitz was employed by Lone Star, not another entity, Lone Star, Ltd. Neither party asserted that LST, the named insured, was Kaplowitz’s sole employer.

The undisputed evidence establishes that at the time Kaplowitz was injured she was working on the premises located at 5001 183A Toll Road, Cedar Park, TX 78613, an address not listed on the workers’ compensation policy. There is evidence that Kaplowitz was hired by Lone Star and that LST was a workers’ compensation insurance subscriber. Lone Star has not come forward with a workers’ compensation policy that lists Lone Star as an insured, nor has LST come forward with conclusive proof that Kaplowitz was its employee at the time of the alleged injury. While Lone Star and LST argued they were co-employers and were both workers’ compensation subscribers, the record does not conclusively establish those facts.

A summary judgment based on the exclusive remedy doctrine is triggered by conclusive evidence that the injured worker was an employee at the time of the work-related injury, and that the employer was covered by workers’ compensation insurance. The court held the summary judgment evidence in this case had established a genuine issue of material fact as to whether Kaplowitz’s employer was covered by workers’ compensation insurance. The defendants, therefore, failed to conclusively establish their affirmative defense of the exclusive remedy doctrine.

The court of appeals did affirm, however, the trial court’s dismissal of the employee’s intentional infliction of emotional distress claim. the court observed that such a cause of action was “a gap-filler tort” that was “judicially created for the limited purpose of allowing recovery in those rare instances in which a defendant intentionally inflicts severe emotional distress in a manner so unusual that the victim has no other recognized theory of redress.” Because Kaplowitz’s intentional tort claim depends on the conduct alleged in her negligence claims of negligence, the court concluded that she had another remedy.

Where, as here, other tort claims are potentially available there is simply no gap to fill and a plaintiff cannot maintain her claim for IIED regardless of whether she succeeds on, or even makes, the precluding claim.

Ultimately, the court affirmed the trial court’s summary judgment on Kaplowitz’s intentional tort claim and reversed the trial court’s remaining summary judgment order on the grounds of the exclusivity defense. The court remanded the case for proceedings consistent with its opinion.