United States District Court, S.D. Texas, Houston Division
Rosalind B. Kinney, individually and on Behalf of the Estate of Alvin M. Kinney, And Brett K. Kinney, Individually Plaintiffs,
Brink's Incorporated, and Capital One National Association, Defendants.
OPINION ON SUMMARY JUDGMENT
STEPHEN WIN SMITH UNITED STATES MAGISTRATE JUDGE
the Court is defendant Brink's motion for summary
judgment. (Dkt. 52). After careful review of the pleadings
and the law, the court concludes that Brink's is entitled
to summary judgment on all claims, and that its motion will
a wrongful death action brought by plaintiffs Rosalind
Kinney, the surviving spouse, son Brett Kinney, and the
estate of decedent Alvin M. Kinney. At the time of his death,
Mr. Kinney was employed as a messenger by Brink's, an
armored car service. On February 12, 2015, Mr. Kinney was
working in the course and scope of his employment when he was
shot and killed by an unknown assailant during a robbery. The
killing occurred at the Capital One bank branch on 5718
Westheimer, Houston, Texas. Dkt. 12.
Amended Complaint asserts gross negligence, wrongful death
and survival claims against Brink's. Plaintiffs have also
asserted a premises liability claim defendant Capital One,
the operator of the premises where the killing occurred.
Capital One has in turn filed a crossclaim against
Brink's. (Dkt. 46). Now, Brink's moves for summary
judgment on all claims for relief by the plaintiffs, as well
as the cross claim by Capital One.
order to be entitled to summary judgment, the pleadings and
summary judgment evidence must show that there is no genuine
issue as to any material fact and the moving party is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a).
Disputes are “genuine” if the evidence is such
that a reasonable jury could return a verdict for the
nonmoving party. Id. A party moving for summary
judgment “must demonstrate the absence of a genuine
issue of material fact, but need not negate the elements of
the nonmovant's case.” Little v. Liquid Air
Corp., 37 f.3d 1069, 1075 (5th Cir. 1994) (internal
moving party meets this burden, the burden shifts to the
non-moving party to show with “significant
probative” evidence that there exists a triable issue
of fact. Conkling v. Turner, 18 F.3d 1285, 1295 (5th
Cir. 1994) (internal citation omitted). Unsubstantiated
assertions are not competent summary judgment evidence.
Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994).
“Conclusional allegations and denials, speculation,
improbable inferences, unsubstantiated assertions, and
legalistic argumentation do not adequately substantiate for
specific facts showing a genuine issue for trial.”
TIG Ins. Co. v. Sedgwick James of Wa., 276 F.3d 754,
759 (5th Cir. 2002) (internal citation omitted). The
non-movant is required to identify specific evidence in the
record and to articulate the precise manner in which that
evidence supports his or her claim. Id. at 1537.
motion asserts that, as a matter of law, the Kinneys'
claims are barred by a combination of two Texas statutes.
Under Texas Labor Code § 408.001(a), “recovery of
workers compensation benefits is the exclusive remedy”
against an employer who subscribes to workers'
compensation insurance. It is undisputed that Brink's was
Mr. Kinney's employer, that he subscribed to workers'
compensation insurance, and that Plaintiffs are receiving
benefits from Brink's workers' compensation carrier
in connection with the incident. Dkt. 52-1 at 13. As a
covered employer under the law, Brink's cannot be held
liable for actual damages resulting from a work-related
injury or death. See Wright v. Gifford-Hill &
Co., 725 S.W.2d 712, 714 (Tex. 1987). This exclusive
remedy provision does not extend to all damage claims,
however. The statute makes an exception for exemplary damages
in cases where employer gross negligence resulted in an
employee's death. TEX.LAB.CODE
§408.001(b). So the gross negligence claim for
exemplary damages by Mr. Kinney's surviving spouse and
are not precluded under this statute.
Brink's asserts that a different statute does preclude
their exemplary damages claim. Texas Civil Practice &
Remedies Code § 41.005(a) provides: “In an action
arising from harm resulting from an assault, theft, or other
criminal act, a court may not award exemplary damages against
a defendant because of the criminal act of another.”
This act has been applied to preclude an award of exemplary
damages against an employer based on the criminal act of
another, even if the employer's actions concurrently
caused the employee's death. See Miles v. Jerry Kidd
Oil Co., 363 S.W.3d 823 (Tex. App. - Tyler 2012, no
argue in response that (1) Texas Civil Practice &
Remedies Code § 41.005 conflicts with and is overridden
by the Texas Labor Code exclusive remedy exception for
exemplary damages based on gross negligence; (2) Section
41.005 is unconstitutional under Tex. Const. art. XVI, §
26; and (3) a genuine issue of fact exists regarding the
applicability of Section 41.005(a) in this case. For reasons
explained below, plaintiffs' contentions are without
first argument --- that the Texas Labor Code exclusive remedy
exception should override Section 41.005(a)'s preclusion
of exemplary damages for harm caused by a criminal act of a
third party --- rests on a misapplication of Texas statutory
interpretation principles. Under those principles, a conflict
between a general and a special provision should be resolved
by construing them in a way that gives effect to
both. Failing that, the specific provision