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Watkins v. Diversitech Corp.3/25/1999
Appellant, Fredrick E. Watkins, sued appellee, Diversitech Corporation. The trial court granted appellee's motion for summary judgment. In two issues presented, Watkins contends that: (1) the trial court erred in rendering summary judgment on his claim of wrongful discharge under the Texas Workers' Compensation Act and (2) the trial court erred in rendering summary judgment on his common-law claim of wrongful discharge. We affirm.
Background
Watkins filed suit against Diversitech, his former employer, alleging that he was discharged for filing a claim under the Texas Workers' Compensation Act. Tex. Lab. Code Ann. § 451.001 (Vernon 1996). In the alternative, Watkins alleged that his termination was wrongful under the common law. It is undisputed that Diversitech was a nonsubscriber under the Texas Workers' Compensation Act.
Standard of Review
Summary judgment is proper only when a movant establishes that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). In reviewing the summary judgment, we indulge every reasonable inference in favor of the non-movant, resolve any doubts in its favor, and take as true all evidence favorable to it. Id.; Bangert v. Baylor College of Med., 881 S.W.2d 564, 565-66 (Tex. App.-Houston [1st Dist.] 1994, writ denied). A defendant is entitled to summary judgment if the evidence disproves as a matter of law at least one element of each of the plaintiff's causes of action. Johnson, 891 S.W.2d at 644.
Texas Workers' Compensation Act
Diversitech moved for summary judgment on Watkin's section 451.001 claim based on the recent holding in Texas Mexican Railway Co. v. Bouchet, 963 S.W.2d 52 (Tex. 1998). In Bouchet, the supreme court held that the protection offered by section 451.001, prohibiting an employer from unfairly discharging or discriminating against employees who file workers' compensation claims, did not apply to nonsubscribing employers. Id. at 55-56. The court held that the legislative intent was to apply section 451.001 only to employers who subscribe under the Act. Id. at 56.
Watkins argues that his claim can be distinguished from Bouchet. Bouchet's employer was covered by the Federal Employer's Liability Act (FELA). 45 U.S.C.A. §§ 51-60 (Lexis 1981 and Supp. 1998). Watkins adopts the argument in the Concurring opinion that Bouchet was not entitled to sue under section 451.001 because his original claim against his employer was brought under FELA and not under the Texas Workers' Compensation Act. Bouchet, 963 S.W.2d at 59 (Spector, J., Concurring and Dissenting). Thus, Bouchet never instituted, or caused to be instituted, in good faith, any proceeding under the Texas Workers' Compensation Act. See Tex. Lab. Code Ann. § 451.001(3) (Vernon 1996).
Watkins contends that his original claim against Diversitech was brought under the Texas Workers' Compensation Act because the Act sets forth specific principles governing an employee's suit against a nonsubscribing employer. Tex. Lab. Code Ann. § 406.033 (Vernon 1996). However, the Bouchet court disapproved of Texas Health Enterprises, Inc. v. Kirkgard, 882 S.W.2d 630 (Tex. App.-Beaumont 1994, writ denied), and Hodge v. BSB Investments, Inc., 783 S.W.2d 310 (Tex. App.-Dallas 1990, writ denied), to the extent that they held that an employee could assert a wrongful discharge claim against an employer who did not subscribe to the Texas Workers' Compensation Act. Kirkgard and Hodge were in the same position as Watkins.
Based on the clear mandate in Bouchet, Diversitech's summary judgment was proper o
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