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Kinney v. Brink's Inc.

United States District Court, S.D. Texas, Houston Division

January 11, 2018

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.



         Before 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 be granted.


         This is 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.

         First 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.

         Summary Judgment Standard

         In 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 citation omitted).

         If the 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.


         1. Plaintiff's Claims

         Brink's 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).[1] So the gross negligence claim for exemplary damages by Mr. Kinney's surviving spouse and son[2] are not precluded under this statute.

         However, 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 pet.).

         Plaintiffs 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 merit.

         Plaintiff's 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.[3] Failing that, the specific provision prevails ...

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