Exclusive Remedy Bars Suit Arising out of Sexual Assault
The Fourth Court of Appeals has affirmed the decision of a trial court that dismissed an employee’s suit against her employment claiming that she was sexually assaulted on the job. The court ruled that the employer was entitled to assert the exclusive remedy defense in a lawsuit filed by Yolanda Berrelez. The decision in Berrelez v. Mesquite Logistics USA, Inc., No. 04-17-00235-CV, August 15, 2018 followed the trial court’s dismissal of the employee’s suit against her employer, Mesquite Logistics USA.
Berrelez was employed by Mesquite Logistics as a housekeeper at Mesquite Lodge. According to Berrelez, Mesquite Lodge provides housing for oil field workers. Berrelez claims her duties as housekeeper included cleaning rooms, removing trash, and providing clean linens and bedding for the guests. One day, when Berrelez was on duty, Berrelez alleged that a Mesquite Lodge guest, Manuel Hugo Mascorro, sexually assaulted her. Mascorro ultimately pled guilty to indecent exposure.
After the reported sexual assault, Mesquite Logistics, a subscriber to workers’ compensation under the Act, submitted a workers’ compensation claim to its insurance carrier. The carrier electronically filed an “Employer’s First Report of Injury” with the DWC, reporting a “mental trauma injury” sustained by Berrelez. The DWC assigned the matter a claim number. An adjustor with the insurance carrier contacted Berrelez by letter, asking that she contact the carrier to discuss the workers’ compensation claim. The carrier determined Berrelez had a compensable injury for mental trauma and set medical reserves of $2,000.00.
Berrelez resigned from Mesquite Logistics and never contacted the insurance carrier. Rather, counsel for Berrelez sent a demand letter to Mesquite Logistics. Thereafter, Berrelez filed suit against Mesquite Logistics and Mascorro.
Mesquite defended itself, asserting, among other defenses, that it was protected from liability because it had workers’ compensation coverage for Berrelez’ compensable injury. The trial court agreed, and dismissed Berrelez’ suit. Berrelez appealed.
On appeal, Berrelez contends the trial court erred in dismissing her suit against Mesquite Logistics. Relying on the “personal animosity” exception, she claims it was unnecessary for her to exhaust her administrative remedies because she was not in the course and scope of her employment at the time of the assault. Thus, she argues her claims are “exempted” from the Act. Mesquite disagrees, arguing that whether Berrelez was in the course and scope of her employment at the time of the assault was an issue within the exclusive province of the DWC, mandating that she first exhaust her administrative remedies prior to filing suit.
The court discussed the reason underlying the exhaustion requirement.
Requiring a party to exhaust her administrative remedies prior to filing suit does not deprive her of any legal rights. Id. Rather, “it honors the Legislature’s intent that ‘the appropriate body adjudicates the dispute’ first … and thereby ensure[s] an orderly procedure to enforce those rights.” Id. (citations omitted). The exhaustion of administrative remedies requirement permits the agency in question to apply its expertise and develop a factual record if a suit is later filed.
Turning to the arguments of the parties, and applying the law to the facts of this case, the court wrote that even if Berralez’ injuries had been non-compensable because of the personal animosity exception, the exclusive remedy provisions of the act would still bar her suit.
Berrelez contends she was not in the course and scope of her employment at the time of the assault — and therefore not required to exhaust administrative remedies before the DWC — based on the personal animosity exception, arguing applicability of the exception removes her claims from the Act. Section 406.032 of the Act provides that an insurance carrier is not liable for compensation if, among other things, the employee’s injury “arose out of an act of a third person intended to injure the employee because of a personal reason and not directed at the employee as an employee or because of the employment[.]” TEX. LAB. CODE ANN. § 406.032(1)(C). However, the exceptions listed in section 406.032 do not remove a dispute from exclusive jurisdiction of the DWC; rather, they merely “help[] delineate exactly which actions occur within the course and scope of employment and those that do not.” Medina v. Herrera, 927 S.W.2d 597, 606 n.1 (Tex. 1996) (Enoch, J., concurring in part and dissenting in part). We have found numerous cases in which the DWC made the initial determination regarding the applicability of an exception under section 406.032 as part of its “course and scope” determination. See, e.g., Commerce & Indus. Ins. Co. v. Ferguson-Stewart, 339 S.W.3d 744, 747 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (intoxication exception); Powers v. Tex. Mut. Ins. Co., No. 11-08-00088- CV, 2010 WL 337144, at *1 (Tex. App.—Eastland Jan. 29, 2010, pet. denied) (mem. op.) (intoxication exception); Adkins v. Tex. Mut. Ins. Co., No. 04-07-00750-CV, 2008 WL 4500322, at *1–*2 (Tex. App.—San Antonio Oct. 8, 2008, no pet.) (mem. op.) (voluntary participation in off-duty recreational activity exception); Sanchez v. State Office of Risk Mgmt., 234 S.W.3d 96, 98–100 (Tex. App.—El Paso 2007, no pet.) (intoxication exception); Tex. Mut. Ins. Co. v. Havard, No. 01-07-00268-CV, 2008 WL 598347, at *1 (Tex. App.—Houston [1st Dist.] Mar. 6, 2008, no pet.) (mem. op.) (intoxication exception); Lumbermens Mut. Cas. Co. v. Green, No. 14-05-00631- CV, 2006 WL 462335, at *2–*3 (Tex. App.—Houston [14th Dist.] Feb. 28, 2006, no pet.) (mem. op.) (personal animosity exception); Am. Interstate Ins. Co. v. Hinson, 172 S.W.3d 108, 114 (Tex. App.—Beaumont 2005, pet. denied) (intoxication exception); Vasquez v. Six Flags Houston, Inc., 120 S.W.3d 445, 446–47 (Tex. App.—Texarkana 2003, no pet.) (horseplay exception); Tex. Workers’ Comp. Ins. Fund v. Rodriguez, 953 S.W.2d 765, 766 (Tex. App.—Corpus Christi 1997, writ denied) (voluntary participation in off-duty recreational activity exception). Accordingly, we hold that merely pleading an exception under section 406.032, including the personal animosity exception, does not remove a claim from the jurisdiction of the DWC and its exclusive right, in the first instance, to determine whether an employee was in the course and scope of employment at the time of the alleged injury. In sum, we hold Berrelez had to exhaust her administrative remedies under the Act before filing suit in district court. We therefore overrule her appellate complaints.
In summary, the court ruled that the employee’s failure to exhaust her administrative remedies deprived the trial court of subject matter jurisdiction, mandating dismissal of the common law claims against her employer.
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