Appeal from the 149th District Court Brazoria County, Texas
Trial Court Cause No. 75576-CV
consists of Justices Christopher, Jamison, and Donovan.
(Donovan, J., dissenting).
MAJORITY OPINION ON REHEARING
an appeal from a final judgment rendered after a trial by
jury in a personal-injury lawsuit. The injury occurred on a
commercial construction site following the collapse of a
crane. The claimant was the general contractor's
superintendent, and he sued a subcontractor on claims of
negligence, gross negligence, and intentional injury. The
jury made findings in favor of the claimant, and the trial
court rendered judgment based on the jury's award.
original submission, we determined that the central issue was
whether the Texas Workers' Compensation Act precluded the
claimant's recovery of common law damages, and we
concluded that it did. We explained that, under the Act, an
injured worker's exclusive remedy for work-related
injuries is his receipt of workers' compensation
benefits. Because we concluded that the Act applied, we held
that the subcontractor was immune from any liabilities
arising out of its negligence. We recognized that the Act has
an exception for gross negligence when the worker suffers a
fatal injury, but we held that this exception did not apply
because the claimant's injury was non-fatal. We also
recognized that the Act has another exception for intentional
injuries, but we held that the claimant could not recover
under this exception because the evidence did not support a
finding that an employee of the subcontractor intended to
produce the specific consequences of his conduct. Based on
these holdings, we concluded that the claimant's recovery
of common law damages could not be sustained, and we reversed
and rendered judgment that the claimant take nothing on his
claims against the subcontractor.
our opinion, the claimant filed a motion for rehearing that
challenged our liability analysis. The claimant asked that we
revise our opinion to affirm the trial court's judgment
or, in the alternative, that we remand for a new trial in the
interest of justice. We grant the motion in part, withdraw
our previous opinion, and issue this opinion on rehearing in
its stead. Our liability analysis remains unchanged, but we
remand in the interest of justice.
USA Building, Inc. was the general contractor on a
large-scale construction project, and Tyler Lee was
Skanska's superintendent. Berkel & Company
Contractors, Inc. was one of the subcontractors, and it was
responsible for drilling the foundation pilings of an office
building that was planned for the project.
suffered his injury as Berkel's crew was attempting to
complete one of its pilings. To understand how that injury
occurred, we begin with an explanation of how the crew
normally installs those pilings.
a piling, the crew starts by drilling a hole into the earth
using an auger, which is essentially just a large helical
drill bit. Once the hole is drilled to a certain depth, the
crew pumps grout into the hole through a shaft in the middle
of the auger. The crew then gradually extracts the auger,
allowing the grout to fill the hole. After the auger is
removed, the crew drops a cage made out of steel rebar into
the grout. The piling is formed as the grout hardens around
machinery is required to complete the pilings, which on this
project were between 90 and 110 feet deep. To drill down to
those depths, the crew used a 130-foot auger. To operate an
auger of that size, the crew used a crawler crane with a
190-foot boom. The crew also staked a 150-foot column known
as "the leads" into the ground next to the auger to
guide the auger in a vertical position. The crane lifted the
leads into place along with the auger.
adopted a number of policies to ensure that its pilings were
completed safely. One of those policies provided that a
piling should never be started unless sufficient grout is on
site to fill an entire hole. This policy was violated on the
day of Lee's injury.
completing a piling, the crew had a few cubic yards of grout
to spare, enough to fill a hole to a depth of about fifteen
or twenty feet, but well short of the amount needed to fill a
hole completely. Berkel's superintendent, Chris Miller,
did not want to see this grout go to waste, and because the
grout was set to expire soon, he ordered his crew to begin
foreman, Mark Stacy, expressed opposition to Miller's
plan. Stacy did not want to drill another hole until a fresh
batch of grout had arrived on the jobsite. Miller responded
that more grout was on its way, and because the crew was
already behind schedule, he told Stacy, "If you
don't drill down, I'll find somebody else that
will." Stacy acquiesced, and then Miller left the
Miller was away, the crew pumped the old grout into a newly
drilled hole, expecting that a fresh delivery of grout would
be delivered soon. Against the crew's expectations, the
delivery was delayed by traffic, and as the crew was forced
to wait, the grout in the hole began to harden.
the delivery finally arrived, nearly forty minutes had
passed. The crew resumed its operation by drilling back down
into the old grout, intending for the old grout to mix more
evenly with the new grout. But the old grout created a plug
around the auger, and when the new grout was pumped into the
hole, the pressures beneath the plug began to build, until a
sudden release forced the auger to shoot up about five feet.
This upward movement caused the cable connected to the auger
to backlash. The crew halted the operation so that the cable
could be tightened. When the operation was restarted, the
crew discovered that the auger was stuck.
occasionally get stuck, and Berkel has a set of guidelines
for unsticking them. Stacy tried to unstick the auger without
success for nearly ten minutes, and then Miller returned to
was, in his own words, "livid" to discover that the
auger was stuck. He knew that if the auger could not be
freed, then the auger would have to be cut, and the crew
would fall behind schedule at least one or two days.
told Stacy to step aside: "Get the F out of the way.
I'm taking over." Miller then positioned himself
under the boom, fifteen feet away from the leads, making him
closer to the leads than anyone else on the jobsite. For the
next twenty-five to forty minutes, Miller gave commands to
Berkel's crane operator, Andrew Bennett.
told Bennett to "bump" the auger, or turn it
alternately between forward and reverse. When Bennett tried
this bumping procedure, no rotational movement could be
observed in the auger itself. However, unusual movement could
be observed in the hydraulic lines that powered the auger.
These lines were hanging from the boom of the crane, and they
were heavy, weighing more than a ton. During the bumping
procedure, the lines jerked in spasms, or "danced"
as they were described by the crew, creating side loads that
the boom was never designed to carry. The lines also sprayed
so much hydraulic fluid that Bennett had to wipe it clean
from the window of his cab.
also told Bennett to hoist the auger with the crane. Hoisting
caused the crane to become unbalanced. The tracks at the
front of the crane dug deeper into the ground, while the
tracks at the rear of the crane lifted up. In the industry,
this is known as "tipping" the crane, and it is a
sign that the crane is attempting to lift a load beyond the
crane's rated capacity.
tried to stop the operation. He left his cab at least five
times and told Miller that the crane was overloaded and that
continuing would be unsafe. Berkel's excavator operator,
Chris Prestridge, also tried to warn Miller, telling him that
the tracks of the crane were coming off the ground.
disregarded all of these warnings. He screamed at Bennett,
"Pull it out! Pull it out!"
Miller's commands, the crane was placed under so much
strain that its boom bowed and bent, until it eventually
snapped in half and came crashing down.
the collapse of the boom, the leads toppled over onto one
side, away from the crane. Lee, who was standing behind a
barricade, far away from the crane, saw the leads plummeting
in his direction. He dove, trying to evade their fall, but
the leads landed on his left leg, pinning him to the ground.
hoe was needed to lift the leads off of Lee. When the leads
were finally removed, Lee discovered that his leg had been
crushed and severed below the knee. Doctors were unable to
save it. Because Lee's knee had been so badly damaged,
doctors had to amputate above the knee so that Lee could be
fitted with a prosthetic.
the only person harmed in the incident. Berkel's entire
crew of about ten men, including Miller, managed to escape
recovered workers' compensation benefits through a plan
administered by Skanska, but he sued Berkel seeking an
additional recovery at common law. The jury awarded Lee more
than $35 million in actual damages. The jury also awarded him
$8.5 million in exemplary damages, based on Berkel's
moved for judgment notwithstanding the verdict, but that
motion was denied.
raises multiple issues in this appeal, challenging both
liability and damages. We only address the liability issues
because they are dispositive. These issues focus on the
applicability of the Texas Workers' Compensation Act and
its exception for injuries that are the result of an
Overview of the Act
Texas Workers' Compensation Act provides reciprocal
benefits to covered employees and their subscribing
employers. For the covered employee who sustains a
work-related injury, the Act guarantees the prompt payment of
medical bills and lost wages, without regard to who was at
fault for causing the injury. See HCBeck, Ltd. v.
Rice, 284 S.W.3d 349, 350 (Tex. 2009). For the
subscribing employer, the Act provides immunity from the
injured employee's common law claims. Id. This
immunity is achieved by the following provision, which
declares workers' compensation benefits the injured
employee's exclusive remedy:
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
Tex. Lab. Code § 408.001(a). Under the plain text of
this provision, the employer's immunity extends to his
servants, which means that the co-employees of an injured
employee are also protected from common law liabilities.
exclusive-remedy provision is an essential component to the
Act, but it has exceptions, one of which is statutory. The
Act provides that if an employee suffers a fatal injury
because of the intentional act or omission of the employer or
because of the employer's gross negligence, then the
employee's surviving spouse or heirs are not prohibited
from recovering exemplary damages. Id. §
exception is court-made. In 1916, three years after the Act
was passed into law, the Texas Supreme Court determined that
the Act does not prohibit a worker from seeking common law
damages when the worker suffers a non-fatal injury caused by
the intentional tort of another. See Middleton v. Tex.
Power & Light Co., 108 Tex. 96, 109, 185 S.W. 556,
560 (1916). This intentional-injury exception is not based on
any particular statutory provision. The Court simply
explained that the worker's right to seek redress for
such injuries is "protected by the Constitution and
could not be taken away." Id., 185 S.W. at 560.
court-made exception is still a part of our law today.
See Medina v. Herrera, 927 S.W.2d 597, 600 (Tex.
1996) (concluding that the intentional-injury exception
survived legislative changes to the Act).
May Berkel claim the exclusive-remedy defense?
applicability of the exclusive-remedy provision is the
central issue in this case. If the provision does not apply,
then there would be no statutory bar to Lee's common law
if the provision does apply, then Lee cannot recover on his
claim for negligence. The same is true about Lee's claim
for gross negligence because Lee did not suffer a fatal
injury. Lee would be limited to his workers' compensation
benefits, unless his recovery of common law damages can be
sustained on a theory that Berkel committed an intentional
resolve this central issue, we must first answer a threshold
question: May Berkel claim the exclusive-remedy defense when
Berkel is not Lee's actual employer or co-employee?
Berkel argues on appeal that it may, even though Lee worked
for the general contractor and Berkel was just a
subcontractor. Berkel preserved this point in its motion for
JNOV, which the trial court denied.
review the trial court's ruling on a motion for JNOV
under the same standard for any motion that would render
judgment as a matter of law. See Cent. Ready Mix Concrete
Co., Inc. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007). We
consider all of the evidence in the light most favorable to
the nonmovant, indulging every reasonable inference and
resolving any doubts against the motion. See Union Banks
Ins. Co. v. Shelton, 889 S.W.2d 278, 287 (Tex. 1994). To
the extent that the trial court's ruling was based on a
pure question of law, our review is de novo. See In re
Humphreys, 880 S.W.2d 402, 404 (Tex. 1994).
provisions in the Act govern the employment relationship
between general contractors and subcontractors. The first
provision establishes the general rule that a subcontractor
and its employees are not the employees of the general
contractor. See Tex. Lab. Code § 406.122(b).
This rule applies only if the subcontractor is operating as
an independent contractor and the subcontractor has entered
into a written agreement with the general contractor in which
the subcontractor has assumed the responsibilities of an
second provision establishes a permissive exception to the
general rule, allowing the general contractor to be deemed
the statutory employer of the subcontractor and the
subcontractor's employees "for purposes of the
workers' compensation laws of this state."
Id. § 406.123(e). To create this deemed employer-
employee relationship, the Act requires the general
contractor and the subcontractor to enter into a written
agreement under which the general contractor provides
workers' compensation insurance coverage to the
subcontractor and the employees of the subcontractor.
Id. § 406.123(a).
undisputed evidence shows that Skanska, the general
contractor and Lee's actual employer, agreed to provide
workers' compensation insurance to all of its
subcontractors and their employees through a
contractor-controlled insurance program (CCIP). During the
bidding process, Skanska instructed its prospective
subcontractors to omit the cost of workers' compensation
insurance, as that coverage would be provided through the
CCIP. Once the contracts were awarded, Skanska required all
of its subcontractors to enroll in the CCIP as a condition to
performing work on the jobsite. Berkel enrolled in the CCIP,
and Berkel's written agreement with Skanska confirms that
Skanska provided insurance coverage to Berkel and its
employees through the CCIP. Thus, for purposes of the Act,
Skanska is Berkel's statutory employer, and Lee, as
Skanska's actual employee, is Berkel's statutory
co-employee, Berkel is entitled to rely on the Act's
exclusive-remedy provision, meaning that the trial court
erred by rendering judgment against Berkel on the findings
that Berkel was negligent and grossly negligent. See TIC
Energy & Chem., Inc. v. Martin, 498 S.W.3d 68, 78
(Tex. 2016) (concluding that the exclusive-remedy provision
protected a subcontractor against the common law claims of a
general contractor's employee ...