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1 UNSETTLED QUESTIONS OF TEXAS LAW CLAIM FOR EXEMPLARY DAMAGES AGAINST AN INSURED EMPLOYER FOR A WORK- RELATED DEATH H. VICTOR THOMAS* AND REAGAN W. SIMPSON** I. INTRODUCTION II. OVERVIEW OF THE CLAIM III. DOES THE TEXAS CONSTITUTION OR THE TWCA CREATE AN INDEPENDENT ACTION FOR EXEMPLARY DAMAGES? A. Two Texas Supreme Court Decisions, Duhart and Fuller, Indicate that Neither the Texas Constitution nor the TWCA Creates an Independent Action for Exemplary Damages B. Lower Courts Disregard or Attempt to Distinguish Duhart and Fuller C. The Courts of Appeals Return to Duhart and Fuller IV. UNDER FULLER, MUST A PLAINTIFF, TO RECOVER EXEMPLARY DAMAGES, PROVE ENTITLEMENT TO COMPENSATORY RELIEF UNDER THE TWCA? A. The Law Before Fuller The Plaintiff Must Show Entitlement to Actual Damages but for the TWCA B. The Law After Fuller Must the Plaintiff Show Entitlement to Compensatory Relief? C. Does a Decision that a Death Is Not Compensable Under the TWCA Have a Collateral Estoppel Effect? * H. Victor Thomas is counsel with the Houston office of King & Spalding LLP and is Board Certified in Civil Appellate Law by the Texas Board of Legal Specialization. Mr. Thomas is a former staff attorney for the Fourteenth Court of Appeals, Houston, Texas, with over twenty-five years of trial and appellate experience in representing both defendants and plaintiffs in personal injury and business litigation matters. ** Reagan W. Simpson is a partner with Yetter Coleman LLP and is a former clerk to the Honorable Thomas Gee of the Fifth Circuit. He is a Fellow of the American Academy of Appellate Lawyers, American College of Trial Lawyers, and the American Board of Trial Advocates. He also is Board Certified in Civil Trial and Civil Appellate Law by the Texas Board of Legal Specialization. 787

2 788 SOUTH TEXAS LAW REVIEW [Vol. 53:787 V. HOW DO TEXAS S STATUTORY RESTRICTIONS ON EXEMPLARY DAMAGES APPLY TO A CLAIM FOR EXEMPLARY DAMAGES AGAINST AN EMPLOYER? A. What Is the Effect of the Statutory Requirement that Exemplary Damages May Be Awarded Only if Actual Damages Are Awarded? B. How Does the Statutory Limit on Exemplary Damages Apply in Employee Death Cases? VI. CONCLUSION I. INTRODUCTION This Article discusses a claim for exemplary damages by the spouse and heirs of an employee who dies in a work-related injury against an employer that is a workers compensation insurance subscriber. This claim is often called an employee death case. Although Texas law has recognized this claim for decades, 1 three important questions regarding this claim are still being litigated in the Texas courts. First, is an employee death case an independent, nonderivative claim that arises under the Texas Constitution, the Texas Workers Compensation Act (TWCA), or both, that is not subject to certain defenses to a Texas Wrongful Death Act claim? Second, does this claim require the plaintiff to prove entitlement to compensatory relief under the TWCA, or is proof of entitlement to actual damages, except for the bar of the TWCA, sufficient? Third, how do statutory limitations on exemplary damages apply in employee death cases? In 1987, the Texas Supreme Court held that actual damages should not be submitted to the jury in an employee death case because such damages are not recoverable. 2 That holding is at odds with the exemplary damages cap enacted by the Texas legislature in The cap not only requires an award of actual damages as a prerequisite to recovering exemplary damages, but also calculates the maximum award of exemplary damages based on the amount of actual damages. 4 As to the first question, a split among the Texas courts of appeals developed even though the Texas Supreme Court had already decided 1. See Burk Royalty Co. v. Walls, 616 S.W.2d 911, 917 (Tex. 1981). 2. Wright v. Gifford-Hill & Co., 725 S.W.2d 712, (Tex. 1987). 3. Act approved Apr. 20, 1995, 74th Leg., R.S., ch. 19, 1, sec , 1995 Tex. Gen. Laws TEX. CIV. PRAC. & REM. CODE ANN (a), (a) (b) (West 2008).

3 2012] EXEMPLARY DAMAGES FOR A WORK-RELATED DEATH 789 the issue. 5 As to the second question, the Texas courts and legislature have arguably muddied the waters, and the answer is debatable. As to the third question, it remains unanswered by the Texas Supreme Court even though these restrictions on the recovery of exemplary damages were enacted over sixteen years ago. This Article will discuss how the courts have addressed these questions so far, and will present some arguments as to how these questions may or should be answered. II. OVERVIEW OF THE CLAIM Under the Texas Wrongful Death Act, an individual s surviving spouse, children, and parents may sue for actual damages arising from the individual s wrongful death. 6 If the death was caused by a wilful act or omission or gross negligence, exemplary damages as well as actual damages may be recovered. 7 Claims made under the Wrongful Death Act are entirely derivative and thus may be brought only if the individual injured would have been entitled to bring an action for the injury if the individual had lived. 8 Additionally, article XVI, section 26 of the Texas Constitution recognizes the survivor s right to recover exemplary damages for a death caused by a willful act or gross neglect: Every person, corporation, or company, that may commit a homicide, through wilful act, or omission, or gross neglect, shall be responsible, in exemplary damages, to the surviving husband, widow, heirs of his or her body, or such of them as there may be, without regard to any criminal proceeding that may or may not be had in relation to the homicide. 9 With one exception, however, claims under the Wrongful Death Act for actual and exemplary damages against employers that subscribe to workers compensation insurance are preempted by the TWCA, which limits recovery to the benefits provided for by the Act. Section (a) of the TWCA contains an exclusivity provision, which states: 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 5. See infra Part III.B. 6. TEX. CIV. PRAC. & REM. CODE ANN , (a) (West 2008). 7. Id Id (a); In re Labatt Food Serv., L.P., 279 S.W.3d 640, 646 (Tex. 2009). 9. TEX. CONST. art. XVI, 26.

4 790 SOUTH TEXAS LAW REVIEW [Vol. 53:787 injury sustained by the employee. 10 Section (b), however, contains an exception to subsection (a) a claim for exemplary damages: This section does not prohibit the recovery of exemplary damages by the surviving spouse or heirs of the body of a deceased employee whose death was caused by an intentional act or omission of the employer or by the employer s gross negligence. 11 III. DOES THE TEXAS CONSTITUTION OR THE TWCA CREATE AN INDEPENDENT ACTION FOR EXEMPLARY DAMAGES? Plaintiffs in employee death cases have attempted to avoid certain defenses applicable to a claim for exemplary damages under the Wrongful Death Act, such as governmental immunity, statutes of limitations, bankruptcy discharge, release, and removal to federal court. 12 They have done so by arguing that article XVI, section 26 of the Texas Constitution or section (b) of the TWCA creates an independent, nonderivative action for exemplary damages that is not subject to these defenses. 13 As discussed below, certain court of appeals and federal court decisions have sustained these arguments, but they arguably are contrary to two earlier Texas Supreme Court decisions. A. Two Texas Supreme Court Decisions, Duhart and Fuller, Indicate that Neither the Texas Constitution nor the TWCA Creates an Independent Action for Exemplary Damages The Texas Supreme Court has issued two decisions which clearly hold that neither the Texas Constitution nor the TWCA creates an action for exemplary damages that is independent of the Wrongful Death Act. First, in Duhart v. State, the plaintiffs argued that their claim for exemplary damages was not barred by sovereign immunity because 10. TEX. LAB. CODE ANN (a) (West 2006). 11. Id (b). 12. See Sbrusch v. Dow Chem. Co., 124 F. Supp. 2d 1090 (S.D. Tex. 2000) (removal to federal court); Duhart v. State, 610 S.W.2d 740 (Tex. 1980) (governmental immunity); Ross v. Union Carbide Corp., 296 S.W.3d 206 (Tex. App. Houston [14th Dist.] 2009, pet. denied) (en banc) (release); Zacharie v. U.S. Natural Res., Inc., 94.W.3d 748 (Tex. App. San Antonio 2002, no pet.) (statute of limitations); Perez v. Todd Shipyards Corp., 999 S.W.2d 31 (Tex. App. Houston [14th Dist.] 1999, pet. denied) (bankruptcy discharge), overruled by Ross v. Union Carbide Corp., 296 S.W.3d 206, 216 (Tex. App. Houston [14th Dist.] 2009, pet. denied) (en banc). 13. Sbrusch, 124 F. Supp. 2d at 1091; Duhart, 610 S.W.2d at 742; Ross, 296 S.W.3d at ; Zacharie, 94 S.W.3d at 756; Perez, 999 S.W.2d at 32.

5 2012] EXEMPLARY DAMAGES FOR A WORK-RELATED DEATH 791 section 5 of article 8306 of the Texas Revised Civil Statutes (the similarly worded predecessor to section (b) of the TWCA) created a cause of action for exemplary damages. 14 The Texas Supreme Court disagreed, stating that [s]ection 5 of [a]rticle 8306 does not create a cause of action for exemplary damages, but merely saves an existing one to the extent allowed by law. 15 Second, in Travelers Indemnity Co. of Illinois v. Fuller, the plaintiff, the daughter of a deceased American Petrofina employee, brought a claim for exemplary damages alleging that Travelers Insurance Company (Travelers) was grossly negligent for failing to properly conduct safety audits and industrial hygiene surveys at an American Petrofina facility. 16 Travelers argued that its liability was excluded by article of the Texas Revised Civil Statutes (the predecessor to section (a) of the TWCA), which provided that an insurance carrier shall have no liability with respect to any accident based on the allegation that such accident was caused or could have been prevented by a program, inspection, or other activity or service undertaken by the [carrier] for the prevention of accidents. 17 In response, the plaintiff argued that article XVI, section 26 of the Texas Constitution creates a cause of action for punitive damages 18 which does not depend upon her right to compensatory relief, and therefore, the [TWCA] was unconstitutional to the extent that it limited her right to punitive damages. 19 In a unanimous decision, the Texas Supreme Court rejected this argument, stating: [T]he reason for adoption of the constitutional provision was to allow for exemplary damages under the Wrongful Death Act because of an early interpretation that such damages were not authorized by the Act. It did not abrogate the common law 14. Duhart, 610 S.W.2d at Id. at Travelers Indem. Co. of Ill. v. Fuller, 892 S.W.2d 848, 849 (Tex. 1995). 17. Id. at (citing Acts 1963, 58th Leg., R.S., ch. 437, 1, 1963 Tex. Gen. Laws 1132, 1133, repealed by Acts 1989, 71st Leg., 2d C.S., ch. 1, 16.01, 1989 Tex. Gen. Laws 114 (recodified at TEX. REV. CIV. STAT. ANN. art (West 1993)) (current version at TEX. LAB. CODE ANN (a) (West 2006))). 18. Texas courts use the terms exemplary damages and punitive damages interchangeably, as they have the same meaning. See, e.g., Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 16 (Tex. 1994) ( Punitive (or exemplary) damages are levied against a defendant to punish the defendant for outrageous, malicious, or otherwise morally culpable conduct. ). 19. Id. at 849.

6 792 SOUTH TEXAS LAW REVIEW [Vol. 53:787 requirement of actual damages and extend the remedy to those with no cause of action under the [Wrongful Death] Act. 20 The court noted that the plaintiff s interpretation of the constitution would allow punitive damages without regard to whether the heirs have suffered a compensable injury and would add, by inference, a clause to our constitution allowing the punishment of a party from whom the plaintiff is not entitled to extract compensation. 21 In part, the court declined to make this addition because such a clause would be inconsistent with the long settled rule that a plaintiff must show [an entitlement] to compensatory relief before punitive damages are recoverable. 22 Thus, Fuller held that a claim for exemplary damages under article XVI, section 26 of the constitution is asserted through the Wrongful Death Act, not separately or independent of it. 23 B. Lower Courts Disregard or Attempt to Distinguish Duhart and Fuller Notwithstanding the relatively clear holdings of Duhart and Fuller, several lower courts disregarded them. This disregard began with Perez v. Todd Shipyards Corp., which held that the defendant s bankruptcy discharge did not bar the surviving children s action for exemplary damages because such action was not brought under the Wrongful Death Act, but instead was brought pursuant to article XVI, section 26 of the Texas Constitution and section (b) of the TWCA, and was not a derivative action arising from any rights that may have been possessed by the decedent. 24 Inexplicably, the Perez decision makes no mention of Duhart or Fuller. The holding in Perez, that the Texas Constitution and section (b) of TWCA create an independent action for exemplary damages, was followed by another Texas court of appeals, 25 as well as 20. Id. at (emphasis omitted) (citation omitted). 21. Id. at 852 (emphasis omitted). 22. Id. (citing Wright v. Gifford-Hill & Co., 725 S.W.2d 712, (Tex. 1987); Nabours v. Longview Sav. & Loan Ass n, 700 S.W.2d 901, (Tex. 1985); Fort Worth Elevators Co. v. Russell, 70 S.W.2d 397, 409 (1934); Traweek v. Martin-Brown Co., 14 S.W. 564, 565 (1890); Flanagan v. Womack, 54 Tex. 45, 50 (1880)). 23. See id. at Perez v. Todd Shipyards Corp., 999 S.W.2d 31, 32 n.1, 33 (Tex. App. Houston [14th Dist.] 1999), overruled by Ross v. Union Carbide Corp., 296 S.W.3d 206, 216 (Tex. App. Houston [14th Dist.] 2009, pet. denied) (en banc). 25. See Zacharie v. U.S. Natural Res., Inc., 94 S.W.3d 748, (Tex. App. San Antonio 2002, no pet.) (citing Perez, 999 S.W.2d at 33) (holding that the statute of limitations did not bar children s claim for punitive damages because the Texas

7 2012] EXEMPLARY DAMAGES FOR A WORK-RELATED DEATH 793 certain federal court decisions (two of which concluded that Duhart and Fuller were either distinguishable or dicta). 26 C. The Courts of Appeals Return to Duhart and Fuller Texas law regarding this issue was a confusing mess. But then, the court of appeals that decided Perez overruled it in Ross v. Union Carbide Corp., which recognized that Perez was contrary to decisions of the Texas Supreme Court. 27 In Ross, Homer Ross, a pipefitter, developed an asbestos-related disease from his workplace exposure. 28 In 1989, Ross and his wife sued several asbestos manufacturers for his injuries under theories including strict liability, negligence, and gross negligence. 29 In 1993, Ross and his wife executed a release that settled these claims. 30 Ross died in 2001, and two years later his wife and children brought an exemplary damages claim against Union Carbide, arguing that such a claim was not barred by the release because it was not brought under the Wrongful Death Act, but under article XVI, section 26 of the Texas Constitution and section (b) of the TWCA. 31 The Ross court of appeals rejected this argument. As to the Texas Constitution, the Ross court recognized that Fuller makes clear that a claim for exemplary damages under article XVI, section 26 is asserted through the Wrongful Death Act, not separately from it. Consequently, a decedent s pre-death contract may limit or totally Constitution and the TWCA create an independent, nonderivative cause of action for exemplary damages). 26. See, e.g., Crowder v. Am. Eagle Airlines, Inc., 118 Fed. App x 833, & n.41 (5th Cir. 2004) (per curiam) (unpublished op.) ( Although never addressed directly by the Texas Supreme Court, several Texas courts of appeal have held that the TWCA and the Texas Constitution allow a surviving spouse or child to bring an independent claim for exemplary damages against an employer for gross negligence that resulted in an employee s death. (citing Perez, 999 S.W.2d at 33)); Sbrusch v. Dow Chem. Co., 124 F. Supp. 2d 1090, 1092 (S.D. Tex. 2000) (restricting Duhart v. State, 610 S.W.2d 740 (Tex. 1980), to the context of sovereign immunity) ( [S]ection creates an independent cause of action for exemplary damages based on wrongful death, as opposed to merely saving a pre[]existing cause of action. ); Castillo v. Angelo Iafrate Constr., L.L.C., No. Civ. A. 303CV0061L, 2003 WL , at *2 3 (N.D. Tex. Sept. 30, 2003) (concluding that the statement in Duhart that section (b) s predecessor does not create a cause of action for exemplary damages, but merely saves an existing one to the extent allowed by law was dicta (quoting Duhart, 610 S.W.2d at 743)). 27. Ross v. Union Carbide Corp., 296 S.W.3d 206, (Tex. App. Houston [14th Dist.] 2009, pet. denied) (en banc). 28. Id. at Id. 30. Id. 31. Id. at 211.

8 794 SOUTH TEXAS LAW REVIEW [Vol. 53:787 bar a subsequent action by his wrongful-death beneficiaries. 32 If, during his lifetime, the decedent released the tortfeasor from further liability, then his survivors subsequent wrongful-death claims are barred. 33 As to the TWCA, the Ross court recognized that the express language of section (b) does not purport to create an independent[, nonderivative] cause of action, but instead identifies an exception to the Act s exclusivity provision. Stated differently, section (a) explains what the Workers Compensation Act does i.e., it provides an exclusive remedy for covered employees and their beneficiaries, substituting the right to statutory benefits for the right to recover actual damages from the worker s employer and section (b) explains what the Act does not do i.e., it does not prohibit certain of a covered employee s survivors from recovering exemplary damages from an employer who caused the employee s death through its intentional act or omission or its gross negligence. 34 Thus, section (b) does not create a nonderivative cause of action for exemplary damages independent of the Wrongful Death Act. 35 The Ross court overruled its earlier decision in Perez because the reasoning in Perez could not be reconciled with Fuller and other decisions of the Texas Supreme Court. 36 Moreover, Perez had been a source of unnecessary confusion for other courts. 37 The Ross court also rejected federal court decisions containing language suggesting that the TWCA created an independent cause of action for exemplary damages. 38 Specifically, the Ross court rejected Sbrusch v. Dow Chemical Co. because the decision was based on a misreading of an 32. Id. at 213 (quoting In re Labatt Food Serv., L.P., 279 S.W.3d 640, 644 (Tex. 2009)). 33. Id. 34. Id. at (citation omitted). 35. Id. at Id. at (citing Travelers Indem. Co. of Ill. v. Fuller, 892 S.W.2d 848, (Tex. 1995); Russell v. Ingersoll-Rand Co., 841 S.W.2d 343, (Tex. 1992)). 37. Id. As examples of courts that had been misled by Perez, the court of appeals cited Zacharie v. U.S. Natural Resources, Inc., 94 S.W.3d 748, (Tex. App. San Antonio 2002, no pet.), Crowder v. American Eagle Airlines, Inc., 118 Fed. App x 833, & n.41 (5th Cir. 2004), and Castillo v. Angelo Iafrate Construction, L.L.C., No. Civ. A. 303CV0061L, 2003 WL , at *3 (N.D. Tex. Sept. 30, 2003). Id. at 216 n Id. at 216.

9 2012] EXEMPLARY DAMAGES FOR A WORK-RELATED DEATH 795 earlier Texas Supreme Court decision, Wright v. Gifford-Hill & Co., that did not even address the issue. 39 Another court of appeals, in City of Dallas v. Gatlin, agreed with Ross s interpretation of Fuller that the Texas Constitution does not create an independent cause of action for punitive damages, but noted, without reaching the issue, that other courts had held that the TWCA did provide for such a cause. 40 In sum, in Fuller and Duhart, the Texas Supreme Court indicated that neither the Texas Constitution nor section (b) of the TWCA creates an independent, nonderivative action for exemplary damages. That should have settled the issue. Later, however, Perez held to the contrary, creating confusion among other courts. In Ross, the court of appeals overruled its prior decision in Perez. Although Ross conflicted with the decision of another court of appeals (Zacharie) on this issue, the Texas Supreme Court denied review of Ross. Apparently, the Texas Supreme Court believes that its decisions in Fuller and Duhart are sufficiently clear, and that resolution of this conflict is unnecessary. Ross arguably restores clarity to Texas law on this issue. IV. UNDER FULLER, MUST A PLAINTIFF, TO RECOVER EXEMPLARY DAMAGES, PROVE ENTITLEMENT TO COMPENSATORY RELIEF UNDER THE TWCA? A. The Law Before Fuller The Plaintiff Must Show Entitlement to Actual Damages but for the TWCA As early as 1934, in Fort Worth Elevators Co. v. Russell, the Texas Supreme Court held that exemplary damages cannot be recovered unless the plaintiff is shown to have sustained actual loss or injury and that [t]here can be no recovery of exemplary damages in the absence of a recovery of actual damages. 41 In that case, however, actual damages were not recoverable because the employer carried workers compensation insurance, and such damages were precluded by the exclusive remedy provision of the TWCA. 42 The court, however, held that the requirement of the recovery of actual damages 39. Id. at (citing Sbrusch v. Dow Chem. Co., 124 F. Supp. 2d 1090, 1092 (S.D. Tex. 2000)). 40. City of Dallas v. Gatlin, 329 S.W.3d 222, (Tex. App. Dallas 2010, no pet.). 41. Fort Worth Elevators Co. v. Russell, 70 S.W.2d 397, 409 (Tex. 1934). 42. Id.

10 796 SOUTH TEXAS LAW REVIEW [Vol. 53:787 did not preclude the plaintiff from recovering exemplary damages if he showed himself entitled to recover actual damages but for the TWCA. 43 Further, the court noted that the rule in Texas is that the amount of exemplary damages allowed must be reasonably proportioned to the actual damages found. 44 Accordingly, the court held that the jury should have been asked to find whether or not the [plaintiffs] sustained actual damages by reason of the death... and, if so, the amount thereof. 45 In 1987, the Texas Supreme Court, [i]n the interest of judicial economy, disapproved of its statement in Russell that a plaintiff must secure a jury finding as to the amount of actual damages in a wrongful death case arising under [the TWCA]. 46 The court retreated from its earlier position because [i]n actions for exemplary damages for the death of an employee covered by workers compensation, it is nonsensical to require a plaintiff to plead and submit special issues on actual damages which cannot be recovered. 47 The court concluded that it is a waste of the jury s time and efforts to require a finding of an amount of actual damages in such a case. 48 But the court reaffirmed its statement in Russell, that in order to recover exemplary damages the plaintiff must show himself entitled to recover actual damages, and which he would recover but for the compensation act. 49 Thus, to recover exemplary damages, although the plaintiff must still secure jury findings that the gross negligence of the employer proximately caused the death, findings of the actual damage amounts are not required. 50 In Wright, Chief Justice Hill dissented because absent jury findings of the actual damages there was no way to determine whether the amount of the exemplary damages was reasonably proportionate to the actual damages. 51 Thus, the majority opinion in Wright effectively dispensed with any limit on the amount of exemplary damages that juries could award in employee death cases. 43. Id. 44. Id. 45. Id. 46. Wright v. Gifford-Hill & Co., 725 S.W.2d 712, 714 (Tex. 1987). 47. Id. 48. Id. 49. Id. at (quoting Russell, 70 S.W.2d at 409). 50. See id. at See id. at 715 (Hill, C.J., dissenting).

11 2012] EXEMPLARY DAMAGES FOR A WORK-RELATED DEATH 797 B. The Law After Fuller Must the Plaintiff Show Entitlement to Compensatory Relief? But, as discussed earlier, in 1995 the Texas Supreme Court in Fuller refused to interpret the constitution to allow punitive damages without regard to whether the heirs have suffered a compensable injury because such a clause would be inconsistent with the long settled rule that a plaintiff must show himself entitled to compensatory relief before punitive damages are recoverable. 52 In that case, the heirs were not entitled to compensatory relief because Travelers liability was excluded by the TWCA. 53 Thus, allowing the recovery of exemplary damages under the constitution would have violated this rule. Fuller arguably narrowed the rule as first stated in Russell. In Russell and Wright, the Texas Supreme Court stated the rule as: [I]n order to recover exemplary damages the plaintiff must show himself entitled to recover actual damages, and which he would recover but for the compensation act. 54 But in Fuller, the court changed its statement of the rule to: [A] plaintiff must show himself entitled to compensatory relief before punitive damages are recoverable. 55 Thus, Fuller changed actual damages to compensatory relief and omitted the exception but for the compensation act. This change was necessary because in Fuller, the heirs could have recovered actual damages but for exculpatory provisions of the TWCA. 56 In other words, absent this modification, the plaintiff in Fuller would have been entitled to exemplary damages. Further, the change from actual damages to compensatory relief may have been intended to clarify that it encompassed not just damages assessed by a jury but also benefits or compensation recoverable under the TWCA. One of the policy reasons for this rule is: [T]he law will not punish even the most heinous conduct if that conduct does not cause injury. 57 Arguably, there is no injury if the TWCA or other Texas law prohibits the recovery of any form of compensatory relief. Fuller s modification of the rule comports with this policy. Thus, Fuller 52. Travelers Indem. Co. of Ill. v. Fuller, 892 S.W.2d 848, 852 (Tex. 1995) (emphasis added). 53. Id. at ; see supra note 17 and accompanying text. 54. Wright, 725 S.W.2d at (emphasis omitted); Fort Worth Elevators Co. v. Russell, 70 S.W.2d 397, 409 (Tex. 1934) (emphasis omitted). 55. Fuller, 892 S.W.2d at See id. at Wright, 725 S.W.2d at 714.

12 798 SOUTH TEXAS LAW REVIEW [Vol. 53:787 arguably requires that for a plaintiff to recover punitive damages, the plaintiff must show entitlement to compensatory relief that is not excluded by the TWCA. That requirement is arguably met if the plaintiff shows entitlement to benefits or compensation under the TWCA. This interpretation of Fuller has been adopted by two federal district courts applying Texas law. In Cowen v. Mobil Oil Corp., the court recognized that Fuller held that when there is no cause of action for compensatory damages, no action for exemplary damages exists. 58 The court, however, held that this rule does not preclude a claim for exemplary damages in an employee death case because the TWCA provides that an employee injured in the scope of his employment is entitled to recover a form of compensatory damages; albeit damages which are carefully circumscribed by the Texas Labor Code. 59 The court could find no reason why the statutory remedy outlined in the Texas Labor Code could not form the necessary compensatory damages springboard and thereby allow recovery of exemplary damages. The problem in Fuller, as th[e] court underst[ood] it, [was] that not only did no such springboard exist, the springboard was statutorily prohibited. 60 If Fuller had not modified the rule by omitting the exception ( but for the compensation act ), the court in Cowen would not have needed to resort to the compensatory damage provisions of the TWCA to provide a predicate or springboard for the recovery of exemplary damages. Cowen s interpretation of Fuller has also been adopted by another federal court in Callis v. Union Carbide Chemical and Plastics Corp. 61 Cowen, however, appears to be inconsistent with a statement in a later decision of the same court. 62 If Fuller does require the plaintiff to show entitlement to some form of compensatory relief, it logically follows that if a work-related death is not compensable under the TWCA or any other Texas law, then exemplary damages are not recoverable. In addition to section 58. Cowen v. Mobil Oil Corp., 901 F. Supp. 1204, 1206 (E.D. Tex. 1995). 59. Id. (citing TEX. LAB. CODE ANN (a), , , , , (West 2006)). 60. Id. at (citing TEX. LAB. CODE ANN (a) (West 2006)). 61. Callis v. Union Carbide Chem. & Plastics Corp., 932 F. Supp. 168, (S.D. Tex. 1996) (citing Cowen, 901 F. Supp. at 1206). 62. See Wyble v. E.I. DuPont de Nemours & Co., 17 F. Supp. 2d 641, (E.D. Tex. 1998) (quoting Cowen s interpretation of Fuller, but stating that [t]he court sees nothing in Fuller that changes this well-established Texas rule [as stated in Russell] ).

13 2012] EXEMPLARY DAMAGES FOR A WORK-RELATED DEATH (a) of the TWCA at issue in Fuller the TWCA has other provisions that exclude any compensatory relief. For example, section excludes compensation in six circumstances, including when the injury occurs while the employee is intoxicated, or when a cause of the injury is the employee s horseplay. 63 Similarly, section (2) provides that [a] heart attack is a compensable injury... only if... the preponderance of the medical evidence regarding the attack indicates that the employee s work rather than the natural progression of a preexisting heart condition or disease was a substantial contributing factor of the attack. 64 Additionally, the recovery of compensatory damages under the Wrongful Death Act is precluded by section , which provides that [r]ecovery of workers compensation benefits is the exclusive remedy. 65 Although no court has addressed the issue, Fuller arguably excludes any claim for exemplary damages when benefits under the TWCA and compensatory damages are not recoverable because an essential predicate for exemplary damages is lacking. In these circumstances, there is no springboard of compensatory damages under the TWCA, which the courts in Cowen and Callis believed was necessary to support the recovery of exemplary damages. 66 One difficulty with this interpretation of Fuller is that it precludes independent adult children but not dependent or minor children from recovering exemplary damages in employee death cases because the TWCA does not provide any compensation or benefits to independent adult children. 67 With respect to exemplary damages, since their purpose is to punish, not compensate, 68 there does not appear to be any rational basis for treating adult children and dependent children differently. C. Does a Decision that a Death Is Not Compensable Under the TWCA Have a Collateral Estoppel Effect? This interpretation of Fuller raises another question that the courts have not yet addressed. If a plaintiff files a claim for death benefits under the TWCA, and the Division of Workers 63. TEX. LAB. CODE ANN (West 2006). 64. Id (2). 65. See id (a). 66. Callis, 932 F. Supp. at ; Cowen, 901 F. Supp. at See TEX. LAB. CODE ANN (West 2006). 68. Fairfield Ins. Co. v. Stephens Martin Paving, LP, 246 S.W.3d 653, (Tex. 2008).

14 800 SOUTH TEXAS LAW REVIEW [Vol. 53:787 Compensation (DWC) issues a decision that the death is not compensable, does that decision, under the doctrine of collateral estoppel, preclude a claim for exemplary damages because there is no entitlement to compensatory relief? The doctrine of collateral estoppel precludes relitigation of ultimate issues of fact actually litigated and essential to the judgment in a prior suit. 69 Further, the Texas Supreme Court has noted that the [collateral estoppel] effect of a plaintiff s worker s [sic] compensation claim... on a pending lawsuit is influenced by whether common issues of fact... have been actually litigated or finally adjudicated in the former action. 70 Accordingly, in Medina v. El Paso Machine & Steel Works, Inc., the court of appeals held that a no injury finding in a workers compensation proceeding collaterally estopped and barred a subsequent third party negligence action. 71 Thus, a DWC decision that an employee s death is not compensable under the TWCA would, under Fuller and the doctrine of collateral estoppel, arguably preclude a lawsuit for exemplary damages, since the plaintiff cannot show any entitlement to compensatory relief. This argument is a logical extension of Fuller, but it has not yet been adopted or rejected by any court. V. HOW DO TEXAS S STATUTORY RESTRICTIONS ON EXEMPLARY DAMAGES APPLY TO A CLAIM FOR EXEMPLARY DAMAGES AGAINST AN EMPLOYER? As part of a tort reform effort, in 1995 the Texas legislature implemented two restrictions on the recovery of exemplary damages that potentially eliminate or severely limit claims for such damages by the spouse and heirs of an employee who dies in a work-related injury against an insured employer. Whether this was the legislature s intent is not clear, but this is its apparent impact under existing Texas Supreme Court precedent (Wright). 69. Getty Oil Co. v. Ins. Co. of N. Am., 845 S.W.2d 794, 801 (Tex. 1992). 70. Childs v. Haussecker, 974 S.W.2d 31, 43 (Tex. 1998). 71. Medina v. El Paso Mach. & Steel Works, Inc., 740 S.W.2d 99, (Tex. App. El Paso 1987, no writ).

15 2012] EXEMPLARY DAMAGES FOR A WORK-RELATED DEATH 801 A. What Is the Effect of the Statutory Requirement that Exemplary Damages May Be Awarded Only if Actual Damages Are Awarded? First, the 1995 tort reform added section of the Texas Civil Practices and Remedies Code, which provides that exemplary damages may be awarded only if damages other than nominal damages are awarded. 72 As previously discussed, the Texas Supreme Court instructed in Wright that, [i]n the interest of judicial economy, the jury should not be required to determine the amount of actual damages in a wrongful death case arising under the TWCA because such damages are not recoverable. 73 Thus, section s requirement of a jury award of actual damages cannot be met in employee death cases governed by the TWCA. Moreover, section , unlike Wright, does not provide for any exception to the rule that there must be an award of actual damages. Regardless of the legislature s intent, the apparent impact of section is to eliminate claims for exemplary damages in employee death cases. It could be argued, however, that a DWC decision awarding workers compensation benefits under the TWCA constitutes an award of damages under section In such case, the heirs could only bring a claim for exemplary damages against the employer because they received an award of benefits. Although it has been sixteen years since section was enacted, no Texas court has addressed these questions. B. How Does the Statutory Limit on Exemplary Damages Apply in Employee Death Cases? Second, the 1995 tort reform modified and extended the statutory limit on the amount of exemplary damages. In particular, the legislature adopted a new formula exemplary damages cannot exceed the greater of $200,000 or the sum of (i) two times economic damages plus (ii) the amount of noneconomic damages found by the jury, subject to a separate $750,000 cap. 74 The legislature also made 72. TEX. CIV. PRAC. & REM. CODE ANN (West 2008). Section appears to be a codification of the long-standing common law rule that recovery of actual damages is a prerequisite to receipt of exemplary damages. See Nabours v. Longview Sav. & Loan Ass n, 700 S.W.2d 901, 903 (Tex. 1985). However, unlike the common law rule, section contains no exception for employee death cases governed by the TWCA. 73. Wright v. Gifford-Hill & Co., 725 S.W.2d 712, (Tex. 1987). 74. TEX. CIV. PRAC. & REM. CODE ANN (West 2008).

16 802 SOUTH TEXAS LAW REVIEW [Vol. 53:787 the cap applicable for the first time to employee death cases against employers immune from common law compensatory damages by operation of the TWCA. 75 The legislature, however, gave no guidance as to how this formula should be applied in employee death cases. This new formula for calculating the limit on the amount of exemplary damages based on the amount of actual damages found by the jury does not work for employee death cases because in Wright, the Texas Supreme Court instructed that [i]n the interest of judicial economy the jury should not be required to determine the amount of actual damages in a wrongful death case arising under the TWCA. 76 Thus, in such case there are no jury findings of actual damages that the court can use to calculate the cap under section It could be argued that Wright does not preclude the trial court from submitting questions to the jury regarding the amounts of actual damages; it only eliminated that requirement. That interpretation of Wright is not tenable because its holding is predicated on mandating judicial economy. In Wright, the court reasoned that because actual damages are not recoverable for the death of an employee covered by workers compensation insurance, it would be a waste of the jury s time and efforts to require a finding of an amount of actual damages in such a case. 77 In the interest of judicial economy, the court overruled Russell s requirement that a plaintiff secure a jury finding as to the amount of actual damages. 78 It could be further argued that Wright is no longer good law because after section was enacted, jury findings as to the amounts of actual damages now serve the purpose of providing information necessary for determining the limit on exemplary damages. But even before Wright, jury findings as to the amounts of actual damages served that same purpose. As discussed above, before Wright, jury findings as to the amounts of actual damages were used to limit exemplary damages under the rule that exemplary damages must be reasonably proportionate to the actual damages to ensure that exemplary damages are not awarded because of passion or prejudice. 79 But that purpose did not prevent the Texas Supreme Court in Wright from eliminating such findings for the sake of judicial economy; apparently, the court valued economy over limiting 75. See id (a). 76. Wright, 725 S.W.2d at Id. 78. Id. 79. Id. at 715 (Hill, C.J., dissenting) (citing Nabours v. Longview Sav. & Loan Ass n, 700 S.W.2d 901, 904 (Tex. 1985)).

17 2012] EXEMPLARY DAMAGES FOR A WORK-RELATED DEATH 803 exemplary damages. The real question is whether the Texas Supreme Court will reverse Wright now that the legislature has limited exemplary damages to $0 or $200,000 absent any jury findings of actual damages. Unless and until the Texas Supreme Court overrules its decision in Wright, section arguably limits the amount of exemplary damages in employee death cases to $200,000 because Wright did away with the jury findings on economic and noneconomic damages that are necessary for calculating a higher limit under section Although it has been sixteen years since the 1995 amendments to chapter 41 of the Civil Practice & Remedies Code, the Texas Supreme Court has yet to instruct lower courts as to how section s cap on exemplary damages should be applied in employee death cases. The issue was squarely presented in Diamond Shamrock Refining Co. v. Hall, but the Texas Supreme Court never reached the issue because it held that there was no evidence of gross negligence. 80 Four lower courts have been receptive to asking the jury to find actual damages for purposes of calculating section s cap on exemplary damages, notwithstanding Wright. Some of these courts reason that Wright is inapplicable because it was decided before section s statutory cap became effective in That may be a reasonable basis for the Texas Supreme Court to overrule its decision in Wright, but these lower courts have no such authority. These four lower court decisions are discussed below. First, in Hall v. Diamond Shamrock Refining Co., the court of appeals held that the trial court erred in excluding evidence of the decedent s and heirs compensatory damages. 81 The court of appeals concluded that the evidence of compensatory damages is relevant because the jury needs this evidence to calculate the punitive damages using the formula pursuant to section (b)(1). 82 The court noted that [s]ection (a) requires a jury to determine the amount of economic damages separately from the amount of other compensatory damages when a claimant seeks a recovery of 80. Diamond Shamrock Ref. Co. v. Hall, 168 S.W.3d 164, (Tex. 2005). 81. Hall v. Diamond Shamrock Ref. Co., 82 S.W.3d 5, 24 (Tex. App. San Antonio 2001), rev d on other grounds, 168 S.W.3d 164 (Tex. 2005). The plaintiff made an offer of proof on the following elements of damages: burial expenses, medical expenses, loss of inheritance, pain and mental anguish of decedent and surviving spouse, decedent s physical impairment before death, and widow s loss of consortium. Id. The opinion can be read as approving the submission of all of those elements. 82. Id.

18 804 SOUTH TEXAS LAW REVIEW [Vol. 53:787 exemplary damages. 83 The court reasoned that [t]hese findings are necessary because the formula in section (b) is based on those findings. 84 Therefore, by seeking to recover an award of exemplary damages, Hall should be permitted to introduce evidence and obtain jury findings as to the amount of economic and noneconomic damages. 85 The court of appeals noted the dilemma posed by Wright for calculating the limit under section (b), but gave no explanation as to why Wright was not controlling. 86 The court s reasoning in Hall is arguably flawed not only because it improperly disregards Wright, but also because it incorrectly assumes that the jury not the court applies the formula in section The application of section is a question of law that is determined by the court, not the jury. Thus, the court of appeals conclusion that evidence of actual damages was relevant to the jury s determination of other issues was incorrect. Nevertheless, Hall s holding has been adopted or cited by three other courts. First, in Graham v. Adesa Texas, Inc., in an action for exemplary damages against the employer for a work-related death the court of appeals held that the trial court erred in denying a pleading amendment that alleged actual damages because it was clear from the outset that the amount of actual damages would be relevant. 87 Also, in Juarez v. Elizondo, the court affirmed a summary judgment against a claim for legal malpractice arising from the trial of a claim for exemplary damages against an employer for a workrelated death. 88 The court held that there was no evidence of malpractice because the attorney properly submitted an actual damages question to the jury in the underlying trial. 89 The court cited Hall s holding, which it described as, [The] party seeking recovery of exemplary damages is entitled to introduce and obtain jury findings as 83. Id. (citing TEX. CIV. PRAC. & REM. CODE ANN (a) (West 1997)). 84. Id. (citing TEX. CIV. PRAC. & REM. CODE ANN (b) (West 1997)). 85. Id. 86. Id. at 23 (citing Wright v. Gifford-Hill & Co., 725 S.W.2d 712, 714 (Tex. 1987)). 87. Graham v. Adesa Texas, Inc., 145 S.W.3d 769, 776 (Tex. App. Dallas 2004, pet. denied) (citing Hall, 82 S.W.3d at 24, as holding that a jury needs evidence of compensatory damages to calculate punitive damages under [section] (emphasis added)). 88. Juarez v. Elizondo, No CV, 2007 WL , at *1, *3 (Tex. App. San Antonio Mar. 21, 2007, pet. denied). 89. Id. at *3.

19 2012] EXEMPLARY DAMAGES FOR A WORK-RELATED DEATH 805 to the amount of economic and noneconomic damages in order to apply [the] cap in section Finally, in Winn v. Panola-Harrison Electric Cooperative, Inc., the federal district court recognized the difficulties in applying the exemplary cap formula of section to a claim for exemplary damages against the employer for a work-related death. 91 The court noted that section contemplates basing... exemplary damages on a multiple of economic damages ascertained during the same proceeding, but recognized that no such damages could be awarded in this case, due to the Workers Compensation bar. 92 The court suggested that the jury could be instructed to determine actual damages simply for the purpose of providing a benchmark for the calculation of punitives, even though the actual damages would not be recoverable. 93 The Winn court attempted to distinguish Wright and its progeny on the following basis: In these cases, however, the exemplary damages were not subject to the capping formula. The thrust of these... cases is that there is no reason to calculate actual damages when such damages cannot be awarded. But under the capping formula, there would be a reason for calculating actuals. 94 Regardless of whether the above cases are correctly decided, they fail to resolve the question of what actual damages, if any, should be 90. Id. (citing Hall, 82 S.W.3d at 24). The malpractice claim was that the plaintiff s lawyer should not have submitted compensatory damages because doing so arguably led to a verdict that awarded unrecoverable compensatory damages and no exemplary damages. Id. That result can occur because a jury has no idea that the plaintiffs will not receive an award of compensatory damages. Thus, defense counsel may seek to take advantage of that lack of knowledge by arguing that the jury should award generous compensatory damages but no exemplary damages. That tactic developed after Burk Royalty Co. v. Walls, 616 S.W.2d 911, 921 (Tex. 1981), abolished the some care test, which had made awards of exemplary damages a rarity given that gross negligence was never submitted to the jury if the defendant could show some care. At the time Wright, 725 S.W.2d 712, was decided, some practitioners viewed the unstated but real rationale behind Wright as being a way to remedy the defense tactic of persuading juries to award generous compensatory damages in lieu of exemplary damages. 91. Winn v. Panola-Harrison Elec. Coop., Inc., No. 2:97cv005, 1998 U.S. Dist. LEXIS 22201, at *8 10 & n.1 (E.D. Tex. Nov. 30, 1998). 92. Id. at * Id. at *9 10. Such an instruction may not be proper, owing to the general prohibition in Texas law of informing the juror of the effect of its answers. See TEX. R. CIV. P That prohibition prompted plaintiffs counsel in Juarez, discussed above, to withdraw an expert opinion suggesting an instruction that compensatory damages are not recoverable in an employee death case. See Juarez, 2007 WL , at *3 n.2; but see H.E. Butt Grocery Co. v. Bilotto, 985 S.W.2d 22, 24 (Tex. 1998) (stating that to directly advise the jury of the legal effect of its answers, the issue submitted must instruct the jury how to answer each question in order for the plaintiff or defendant to prevail ). 94. Winn, 1998 U.S. Dist. LEXIS 22201, at *10 n.1 (citing Wright, 725 S.W.2d at 714).

20 806 SOUTH TEXAS LAW REVIEW [Vol. 53:787 submitted to the jury in employee death cases to serve as the basis for calculating section s cap on exemplary damages. Some defendants, including Diamond Shamrock in the Hall case, have argued that the damages for purposes of the cap are the benefits paid under the Workers Compensation Act because those are the only compensatory damages that can be recovered. 95 If that view is correct, three potential difficulties arise. First, it may not be possible to classify all of the survivors benefits under the TWCA as either economic or noneconomic for purposes of applying section s cap because some of those benefits are arguably a substitute for both the economic and noneconomic damages that would have been recoverable under the Wrongful Death Act except for the bar of section (a) of the TWCA. On the other hand, death benefits under the TWCA are calculated on a percentage of the deceased employee s average weekly wage, and therefore arguably constitute economic damages. 96 Second, survivors benefits are not static awards like those made by a jury; they are subject to later modification or termination depending on the surviving spouse s remarriage and the surviving children s educational status. 97 Third, if section is applied based on the compensation paid under the TWCA, independent adult children would have no claim for exemplary damages because only dependent or minor children are entitled to compensation under the TWCA. 98 There does not appear to be any rational basis for permitting dependent or minor children but denying independent adult children a claim for exemplary damages. As recognized in Hall, the other alternative is to submit the amounts of actual damages to the jury that would have been recoverable under the Wrongful Death Act (but for the exclusive remedy provision of the TWCA) and to calculate the section cap based on those findings. 99 This approach, however, ignores Wright s holding that actual damages should not be submitted to the jury since they are not recoverable. 100 Moreover, requiring the employer to pay exemplary damages based on actual damages that are barred by and different than those recoverable under the TWCA would create an anomaly. Arguably, the statutory cap on exemplary 95. See Hall, 82 S.W.3d at See TEX. LAB. CODE ANN (West 2006). 97. Id See id (West 2006). 99. See Hall, 82 S.W.3d at Wright v. Gifford-Hill & Co., 725 S.W.2d 712, (Tex. 1987).