In Re East Texas Medical Center Athens

Supreme Court of Texas

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No. 23-1039

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In re East Texas Medical Center Athens,

Relator

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On Petition for Writ of Mandamus

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Argued January 28, 2025

JUSTICE BOYD delivered the opinion of the court.

An employee was injured while working for an employer that had

elected not to subscribe to the Texas workers’ compensation program.

When she sued her employer for negligently failing to provide a safe

workplace, the employer moved for leave to designate responsible third

parties under the Texas proportionate-responsibility statute. The

employee did not object, and the trial court granted leave, but the

employee later moved to strike the designation. The trial court granted

the motion, and the court of appeals denied the employer’s request for

mandamus relief. We conclude that the trial court abused its discretion

by striking the designation. We hold that (1) the

proportionate-responsibility statute applies because an employee’s

negligence claim against a nonsubscribing employer is not “an action to

collect workers’ compensation benefits under” the Workers’

Compensation Act, (2) the Act does not prohibit nonsubscribing

employers from designating responsible third parties, and (3) this record

contains sufficient evidence of the third parties’ responsibility. Because

we also conclude that the employer has no adequate remedy by appeal,

we conditionally grant the employer’s petition for mandamus relief.

I.

Background

East Texas Medical Center Athens (ETMC Athens) employed

Sharon Dunn as an emergency-department nurse. Dunn alleges she

sustained a serious back injury when, during one of her shifts, an

emergency medical technician (EMT) who was not an ETMC Athens

employee pushed a stretcher into her. She initially sued the EMT and

his employer, but the trial court dismissed those claims because Dunn

failed to timely serve an expert report as the Texas Medical Liability Act

requires for health care liability claims. 1 While that dismissal motion

was pending, Dunn amended her pleadings to assert negligence claims

against ETMC Athens. After the trial court dismissed the claims against

the EMT and his employer, ETMC Athens moved for leave to designate

them as responsible third parties. 2 Dunn did not object, and the trial

court granted the motion.

1 The trial court initially denied the EMT’s dismissal

motion, but the

court of appeals reversed on interlocutory appeal. See ETMC EMS v. Dunn,

No. 12-19-00152-CV, 2020 WL 562971, at *8 (Tex. App.—Tyler Feb. 5, 2020,

pet. denied) (mem. op.).

2 A responsible third party is “any person who is alleged to have caused

or contributed to causing in any way the harm for which recovery of damages

2

Eleven months later, Dunn moved to strike the designations,

arguing in part that the proportionate-responsibility statute does not

apply because her suit against ETMC Athens is “an action to collect

workers’ compensation benefits under” the Workers’ Compensation Act.

See TEX. CIV. PRAC. & REM. CODE § 33.002(c)(1) (providing that the

proportionate-responsibility statute does not apply to such an action).

The trial court granted the motion, and the court of appeals denied

ETMC Athens’s petition for mandamus relief. In re E. Tex. Med. Ctr.

Athens, ___ S.W.3d ___, 2023 WL 8103959, at *5 (Tex. App.—Tyler Nov.

21, 2023, orig. proceeding). ETMC Athens then petitioned for

mandamus relief in this Court. To obtain such relief, ETMC Athens

must demonstrate that the trial court committed a clear abuse of

discretion by striking the designations and that ETMC Athens has no

adequate remedy by appeal. See In re Xerox Corp., 555 S.W.3d 518, 522

(Tex. 2018) (orig. proceeding). We address each requirement in turn.

II.

Abuse of Discretion

A trial court abuses its discretion if it fails to correctly construe a

statute or apply it to the facts before it. See Walker v. Packer, 827 S.W.2d

833, 840 (Tex. 1992) (“[A] clear failure by the trial court to analyze or

apply the law correctly will constitute an abuse of discretion.”). 3 ETMC

is sought, whether by negligent act or omission, by any defective or

unreasonably dangerous product, by other conduct or activity that violates an

applicable legal standard, or by any combination of these.” TEX. CIV. PRAC. &

REM. CODE § 33.011(6).

3 See also In re Gonzales, 619 S.W.3d 259, 261 (Tex. 2021) (orig.

proceeding) (per curiam) (“A trial court that fails to properly apply a statutory

3

Athens contends that the trial court abused its discretion by striking its

responsible third party designations because (A) the

proportionate-responsibility statute applies to Dunn’s negligence

claims, (B) the Workers’ Compensation Act does not prohibit ETMC

Athens from designating responsible third parties, and (C) the record

contains sufficient evidence that the EMT and his employer were at

least partially responsible for causing Dunn’s injury. We agree.

A. The proportionate-responsibility statute applies.

The Texas proportionate-responsibility statute permits a

defendant in a tort action to seek to reduce its liability for a claimant’s

damages by requiring that the factfinder determine “the percentage of

responsibility” for causing such damages attributable to each claimant,

defendant, settling person, and “responsible third party who has been

designated.” TEX. CIV. PRAC. & REM. CODE § 33.003(a)(1)–(4). Generally,

each defendant is liable only for the percentage of the claimant’s total

damages equal to the defendant’s percentage of responsibility,

id. § 33.013(a), and the claimant cannot recover any damages “if his

percentage of responsibility is greater than 50 percent,” id. § 33.001.4

requirement abuses its discretion. . . .”); In re Dawson, 550 S.W.3d 625, 628

(Tex. 2018) (orig. proceeding) (per curiam) (“[B]ecause a trial court has no

discretion in determining what the law is or in applying it to the facts, a trial

court abuses its discretion if it fails to correctly analyze or apply the law.”).

4 A designated responsible third party is not a party to the action and

incurs no liability as a result of a finding that it was responsible for causing

the harm. TEX. CIV. PRAC. & REM. CODE § 33.004(i); see In re Mobile Mini, Inc.,

596 S.W.3d 781, 784 (Tex. 2020) (orig. proceeding) (per curiam) (“[N]either

designating a person as a responsible third party, nor a finding of fault against

the person, imposes liability on that person or provides a basis to impose

liability on the person in any other proceeding.”).

4

A defendant who desires to designate a responsible third party

must timely file a motion for leave to do so. Id. § 33.004(a), (d). The trial

court must grant a timely motion unless the claimant or another party

objects to the motion within fifteen days. Id. § 33.004(a)–(f). If a party

timely objects, the court still must grant the motion “unless the objecting

party establishes that the defendant failed to adequately plead the facts

establishing the third party’s responsibility, even after receiving an

opportunity to replead those facts.” Gonzales, 619 S.W.3d at 262 (citing

TEX. CIV. PRAC. & REM. CODE § 33.004(g)).

If the trial court grants the motion for leave, a party may later

move to strike the designation if, after adequate time for discovery,

“there is no evidence that the designated person is responsible for any

portion of the claimant’s alleged injury or damage.” TEX. CIV. PRAC. &

REM. CODE § 33.004(l). The trial court must grant the motion to strike

the designation unless the defendant “produces sufficient evidence to

raise a genuine issue of fact regarding the designated person’s

responsibility for the claimant’s injury or damage.” Id.

ETMC Athens timely moved for leave to designate the EMT and

his employer as responsible third parties, Dunn did not object, and the

trial court granted the motion. But Dunn later moved to strike the

designation, in part on the ground that the proportionate-responsibility

statute does not apply to an employee’s negligence claim against an

employer that elects not to subscribe to the state’s workers’

compensation program. 5 In support, Dunn relies on Section 33.002(c)(1),

5 ETMC Athens argues that (1) Dunn waived this argument by failing

to object to its motion for leave and (2) Section 33.004(l) allows a subsequent

5

which states that the proportionate-responsibility statute “does not

apply to . . . an action to collect workers’ compensation benefits under

the” Texas Workers’ Compensation Act. Id. § 33.002(c)(1). The court of

appeals denied ETMC Athens’s mandamus petition because it agreed

with Dunn that her suit against ETMC Athens is “an action for workers’

compensation benefits.” E. Tex. Med. Ctr. Athens, 2023 WL 8103959,

at *5. We disagree.

The Workers’ Compensation Act protects employees by allowing

them to promptly recover compensation for work-related injuries

without having to prove that their employer was at fault. Kroger Co. v.

Keng, 23 S.W.3d 347, 349–50 (Tex. 2000). The Act permits both

employers and employees to elect whether to participate in the workers’

compensation program. TEX. LAB. CODE §§ 406.002(a), .034; see Port

Elevator-Brownsville v. Casados, 358 S.W.3d 238, 241 (Tex. 2012)

(“[T]he [Act] allows private Texas employers to choose whether to

subscribe to workers’ compensation insurance. . . . Employees of

subscribing employers also have a choice: they may opt out of the system

within the prescribed time and retain their common-law rights.”).

Employers who elect to subscribe must obtain insurance coverage from

a licensed insurer or through self-insurance to provide benefits for an

employee’s compensable injuries. TEX. LAB. CODE § 406.003. If an

employer subscribes to the program and the employee does not opt out,

those benefits are the employee’s “exclusive remedy” for work-related

motion to strike only on the ground that no evidence supports the EMT’s

responsibility for Dunn’s injury. Because we reject Dunn’s argument on the

merits, we need not address these arguments.

6

injuries. Id. § 408.001; see Maxim Crane Works, L.P. v. Zurich Am. Ins.

Co., 642 S.W.3d 551, 555 (Tex. 2022).

If an employer elects not to subscribe to the workers’

compensation program, an injured employee may recover damages from

the employer for work-related injuries by proving the “negligence of the

employer or of an agent or servant of the employer acting within the

general scope of the agent’s or servant’s employment.” TEX. LAB.

CODE § 406.033(d). This is the type of suit Dunn has filed against ETMC

Athens. To encourage employers to subscribe to the program, the Act

penalizes nonsubscribers by prohibiting them from raising as a defense

in such suits that “(1) the employee was guilty of contributory

negligence; (2) the employee assumed the risk of injury or death; or

(3) the injury or death was caused by the negligence of a fellow

employee.” Id. § 406.033(a). Dunn argues that ETMC Athens cannot

designate responsible third parties because a negligence suit against a

nonsubscriber is “an action to collect workers’ compensation benefits”

under the Workers’ Compensation Act and the proportionate-

responsibility statute does not apply to such an action. TEX. CIV. PRAC.

& REM. CODE § 33.002(c)(1).

In support, Dunn relies primarily on the Tyler Court of Appeals’s

decision in Kroger Co. v. Keng, 976 S.W.2d 882 (Tex. App.—Tyler 1998),

aff’d on other grounds, 23 S.W.3d at 352. Appealing from a jury verdict

in favor of its injured employee, the nonsubscribing employer in Keng

complained that the trial court erred by refusing to submit a jury

question inquiring about the employee’s comparative negligence in

causing the injury. 976 S.W.2d at 885. The court of appeals disagreed,

7

holding that the employer could not rely on the employee’s comparative

negligence to reduce its liability because Chapter 33 (which at that time

provided for “comparative” negligence, rather than proportionate

responsibility) did not apply because the employee’s claim was an

“action to collect benefits [and damages] under the workers’

compensation laws of Texas.” Id. at 891 (quoting TEX. CIV. PRAC. & REM.

CODE § 33.002(c)(1)).

In reaching that conclusion, the Keng court relied on subsections

406.033(a) and (d), which require an employee to prove a nonsubscriber’s

negligence and prohibit the nonsubscriber from relying on the

employee’s contributory negligence as a defense. TEX. LAB.

CODE § 406.033(a), (d). Because of these provisions, the court concluded

that an employee’s negligence suit against a nonsubscribing employer is

an action to recover workers’ compensation benefits because it involves

“a statutory burden to prove the negligence of the employer” and is not

“governed solely by common law.” Keng, 976 S.W.2d at 891. “In short,”

the court explained, “all employers are governed by the Texas Workers’

Compensation Act, whether they subscribe or not.” Id.

On review in this Court, the employer in Keng argued that

Chapter 33 applied and permitted it to assert the employee’s

comparative negligence because (1) the suit was not “an action to collect

workers’ compensation benefits” and (2) although Section 406.033(d)

deprives nonsubscribers of the common-law defense of the employee’s

contributory negligence, it does not deprive them of the statutory defense

of comparative responsibility under Chapter 33. 23 S.W.3d at 348–49.

We rejected the employer’s second argument and expressly did not reach

8

the first. Id. at 352 (“[I]n resolving whether the

comparative-responsibility statute applies in a nonsubscriber case, we

need not determine, as Kroger urges, whether a suit [against a

nonsubscriber] under section 406.033 is ‘an action to collect workers’

compensation benefits under the workers’ compensation laws of this

state.’” (quoting TEX. CIV. PRAC. & REM. CODE § 33.002(c)(1))).

We did state in Keng, however, that the Workers’ Compensation

Act permits employees of a nonsubscribing employer to retain “their

common-law rights.” Id. at 350 (emphasis added). In fact, although we

have never expressly addressed the issue of whether an employee’s

negligence suit against a nonsubscriber is “an action for workers’

compensation benefits under the” Workers’ Compensation Act, we have

consistently and repeatedly characterized the Act as protecting

subscribing employers against “common-law” claims6 while leaving

nonsubscribing employers subject to “common-law” claims. 7 As we

6 See, e.g.,Mo-Vac Serv. Co. v. Escobedo, 603 S.W.3d 119, 124 (Tex.

2020) (“[T]he Legislature [through the Act] . . . substitute[d] statutory

remedies for those at common law.”); TIC Energy & Chem., Inc. v. Martin, 498

S.W.3d 68, 72–73 (Tex. 2016) (“[T]he Act prohibits employees from seeking

common-law remedies from their employers by making workers’ compensation

benefits an injured employee’s exclusive remedy.”); Entergy Gulf States, Inc. v.

Summers, 282 S.W.3d 433, 436 (Tex. 2009) (“The Act outlines a process by

which a general contractor qualifies for immunity from common-law tort

claims brought by the employees of its subcontractors.”); Paradissis v. Royal

Indem. Co., 507 S.W.2d 526, 529 (Tex. 1974) (“In providing the worker a form

of prompt remuneration for loss of earning capacity, the statutory scheme is in

lieu of common law liability based on negligence.”).

7 See, e.g., Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 212 (Tex. 2015)

(“[E]mployees . . . must prove all the elements of a common law negligence

claim to prevail against nonsubscribing employers.”); Tex. W. Oaks Hosp.,

L.P. v. Williams, 371 S.W.3d 171, 187 (Tex. 2012) (stating that nonsubscribing

9

explained over one hundred years ago, the Act provides a statutory

“substitute” for “damages ordinarily recoverable at common law or by

statute on account of injuries suffered by an employee or because of his

death, when due to the negligence of the employer or his servants.”

Middleton, 185 S.W. at 558 (emphasis added).

What the Act itself says, however, is of course more important

than anything we may have said in passing. Several provisions confirm

that the Act distinguishes between a statutory “action to collect workers’

compensation benefits under” the Act, which a subscriber’s employee

may bring, and a common-law action to recover damages based on

negligence, which a nonsubscriber’s employee may bring. As we have

noted, Section 406.033 provides that, if an employer opts out and does

not provide workers’ compensation coverage, an injured employee who

wishes to “recover damages for personal injuries or death” must “prove

negligence of the employer” or its agent or servant. TEX. LAB.

CODE § 406.033(a), (d) (emphasis added). Conversely, if the employer

opts in and provides coverage and the employee does not elect to opt out,

employers are “subject to suits at common law for damages” in which

employees “must prove the elements of a common law negligence claim”); Excel

Corp. v. Apodaca, 81 S.W.3d 817, 819 (Tex. 2002) (“Because Excel is a

nonsubscriber under the Workers’ Compensation Act, Apodaca sued

Excel alleging common-law claims of negligence and gross negligence in failing

to provide a safe workplace.”); Lawrence v. CDB Servs., Inc., 44 S.W.3d 544,

549 (Tex. 2001) (characterizing claims against nonsubscriber as “common-law

claims” that employees could choose to waive “in exchange for prescribed

benefits”); Middleton v. Tex. Power & Light Co., 185 S.W. 556, 559 (Tex. 1916)

(“If [employers] do not become subscribers, they are amenable to suits for

damages recoverable at common law or by statute on account of personal

injuries suffered by their employees in the course of their employment, and are

denied the right of making what constitute the common law defenses thereto.”).

10

the employee waives his “right of action at common law or under a

statute of this state to recover damages for personal injuries or death

sustained in the course and scope of the employment.” Id. § 406.034(a).

An employee who does opt out “retains all rights of action under common

law,” including “the common-law right of action to recover damages for

personal injuries or death.” Id. § 406.034(b).8 A subscribing employer

may not require its employees “to retain common-law rights,” but an

employee who chooses to do so may sue the employer “under common

law or under a statute of this state.” Id. § 406.034(c), (d).

The distinction the Act draws between “benefits” recoverable from

a subscriber under the Act and “damages” recoverable under a

negligence claim against a nonsubscriber confirms our conclusion that a

negligence claim against a nonsubscriber is not “an action to collect

workers’ compensation benefits under the Act.” Under the Act, the term

“benefits” refers to specific types of workers’ compensation benefits:

medical benefits, income benefits, death benefits, and burial benefits.

Id. § 401.011(5). A “benefit” is notably different from “damages,” which

are not limited by the statutory definitions and are only recoverable

8 See Tex. W. Oaks, 371 S.W.3d at 187 (explaining that an employee may

opt out and “retain the common-law right of action to recover damages for

personal injuries or death” (citing TEX. LAB. CODE § 406.034(a), (b))); Lawrence,

44 S.W.3d at 552 (“Employees of subscribing employers may choose to opt out

of the system and retain their common-law rights in the event they are injured

on the job.”); Keng, 23 S.W.3d at 350 (“Employers were . . . allowed to opt out

of the system, resulting in their employees retaining their common-law

rights.”); Tex. Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 511 & n.2

(Tex. 1995) (explaining that in the precursor legislation to the Workers’

Compensation Act, the basic structure of which has “never changed,” “[t]hose

[employees] opting out retained their common law right of action, which

remained subject to all common law defenses”).

11

upon a finding of fault on the part of the employer. Id. § 406.033(a), (d).

Dunn seeks by her claims to recover damages from ETMC Athens, not

“benefits.”9 Even if, as Dunn insists, her claim “arises under” the Act

because the Act requires her to prove that ETMC Athens negligently

caused her injuries, her claim is not “an action to collect workers’

compensation benefits” under the Act. 10

Finally, we note that Section 406.002(b) provides that an

employer who subscribes and “elects to obtain [workers’ compensation]

coverage is subject to” the Workers’ Compensation Act. Id. § 406.002(b)

(emphasis added). No similar provision declares that nonsubscribers are

“subject to” the Act. Although some of the Act’s provisions certainly

address and apply to nonsubscribers, nonsubscribers are not “subject to”

9 Dunn seeks damages for “(a) pain and mental anguish; (b) loss of

earnings and earning capacity; (c) physical impairment; (d) physical

disfigurement; (e) necessary medical, therapeutic, pharmaceutical and

hospital care, including rehabilitative services and devices; and (f) punitive

damages.”

10 Dunn also argues Chapter 417 of the Act, which covers third-party

liability, supports her argument that her claim is one for benefits under the

Act. Again, we disagree. Section 417.001(a) allows an employee of a subscribing

employer to seek both “damages from a third party” and “workers’

compensation benefits” from the employer—thereby treating benefits and

damages as inherently separate types of recovery. TEX. LAB. CODE § 417.001(a)

(emphases added). And Section 417.001(b) allows the injured employee to

recover from a third party any damages awarded that are greater than the

amount of the insurance carrier’s subrogation interest, for which the insurer

is entitled to reimbursement—i.e., the employee is entitled to any recovery

from a third party beyond the benefits amount less the insurer’s

reimbursement and costs. Id. § 417.001(b)(1)–(2). The distinctions Chapter 417

draws between damages and benefits demonstrate that damages are broader

than and distinct from benefits and thus confirm that a claim against a

nonsubscriber is not an action to collect benefits.

12

the Act like a subscribing employer. Considering the distinctions the Act

draws between no-fault statutory claims to collect workers’

compensation benefits against subscribers and fault-based negligence

claims to recover damages against nonsubscribers, we conclude that an

employee’s negligence claim against a nonsubscriber is not an “action to

collect workers’ compensation benefits under” the Act. As a result,

Section 33.002(c)(1) does not prevent the proportionate-responsibility

statute from applying to an employee’s negligence claim against a

nonsubscribing employer.

B. The Act does not prohibit designation of responsible third

parties.

As explained, the Act prohibits a nonsubscribing employer from

defending against an employee’s negligence claim by asserting the

employee’s contributory negligence, the employee’s assumption of the

risk, or a fellow employee’s negligence. Id. § 406.033(a)(1)–(3).11 Dunn

contends that, even if her suit is not an action to collect workers’

compensation benefits, Section 406.033(a) prohibits ETMC Athens from

designating responsible third parties. In support, she relies on our

statement in Austin that Section 406.033(a) “prohibits nonsubscribing

employers from relying on defenses like assumption of the risk,

11 A nonsubscriber may, however, “defend the action on the ground that

the injury was caused (1) by an act of the employee intended to bring about the

injury; or (2) while the employee was in a state of intoxication.” TEX. LAB. CODE

§ 406.033(c)(1)–(2). We explained in Lawrence that this subsection (c) does not

“provide an exhaustive list of defenses available to nonsubscribers” but instead

clarifies that subsection (a), which prohibits defenses “based on an employee’s

(or fellow employee’s) fault,” does not “protect employees injured as a result of

their own intoxication or their own intent to bring about the injury.” 44 S.W.3d

at 548.

13

contributory negligence, or proportionate responsibility.” 465 S.W.3d at

210 (emphasis added).

Our paraphrasing of Section 406.033(a) in Austin, however, must

be read in the context of that case, which involved a nonsubscriber’s

efforts to rely on the injured employee’s awareness of the risks to avoid

liability on the employee’s common-law-negligence claim. Within that

context, our statement was intended only to explain that

Section 406.033(a)’s references to “contributory negligence” and

“assumption of the risk” prohibit a nonsubscriber from relying on the

injured employee’s knowledge or negligence to reduce or avoid its

liability under the proportionate-responsibility statute. Id.12

We explained in Austin that since the adoption of the

proportionate-responsibility statute, “[t]he same facts that tended to

prove assumption of the risk or contributory negligence may now be used

to diminish a plaintiff’s recovery by demonstrating that the plaintiff

bore some portion of the responsibility for his own injuries, or even to

preclude the plaintiff from recovering at all by demonstrating that the

plaintiff bore more than 50% of the responsibility for his own injuries.”

Id. (emphases added). And in the next paragraph we explained that

Section 406.033(a) prohibits a nonsubscriber from asserting that “the

employee bears some portion of the responsibility for his own injuries.”

12 See Austin, 465 S.W.3d at 210 n.17 (“Proportionate responsibility

abrogated former common law doctrines that barred a plaintiff’s recovery

because of the plaintiff’s conduct—like assumption of the risk, imminent peril,

and last clear chance—in favor of submission of a question on proportionate

responsibility.” (emphasis added) (citing Dugger v. Arredondo, 408 S.W.3d 825,

832 (Tex. 2013))).

14

Id. (emphasis added). We did not purport in any way to address in

Austin the effect a third party’s responsibility would have on an

employee’s negligence claims against a nonsubscribing employer.

As the context confirms, our statement in Austin merely

recognizes that Section 406.033(a) waives a nonsubscriber’s defenses

that are based on—and thus prohibits proportionate responsibility that

is based on—its employee’s knowledge and negligence. On its face,

Section 406.033(a) does not preclude apportionment generally—it

simply “discourages employers from opting out of workers’ compensation

insurance by prohibiting a nonsubscriber from asserting that its

employee was contributorily negligent, assumed the risk, or that a fellow

employee’s negligence caused the employee’s injuries.” Keng, 23 S.W.3d

at 350 (citing TEX. LAB. CODE § 406.033(a)). We thus conclude that

Section 406.033(a) does not prevent ETMC Athens from designating

responsible third parties under the proportionate-responsibility

statute.13

13 Dunn also contends that Chapter 417 of the Act supports her position

because it creates a separate proportionate-responsibility scheme for

subscribing employers. She argues that this scheme prohibits nonsubscribers

from using proportionate responsibility to reduce their liability because an

employee of a nonsubscribing employer should not be permitted to recover less

from her employer in damages than she would have received in benefits (that

is, the employer’s liability should not be reduced, based on proportionate

responsibility, to less than what it would have otherwise paid in benefits), as

that would be contrary to the intent of the Act. See TEX. LAB. CODE § 417.001.

We disagree because (1) Chapter 417 applies only to subscribers and does not

act as a limit on nonsubscribers and (2) third-party liability does not deplete a

nonsubscriber’s employee’s recovery in contravention of the Act, it only

determines how much the employer is required to contribute.

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C. Sufficient evidence of the third parties’ responsibility exists.

Finally, ETMC Athens argues that the trial court abused its

discretion because the record contains at least some evidence that the

EMT and his employer bear some responsibility for causing Dunn’s

injuries. The proportionate-responsibility statute does not permit the

determination of a responsible third party’s responsibility “without

sufficient evidence to support the submission.” TEX. CIV. PRAC. & REM.

CODE § 33.003(b). For this reason, a trial court must grant a motion to

strike a designation if, after adequate time for discovery, the defendant

fails to produce “sufficient evidence to raise a genuine issue of fact

regarding the designated person’s responsibility for the claimant’s

injury or damage.” Id. § 33.004(l).

ETMC Athens contends that the record contains sufficient

evidence to create a fact issue on the EMT’s and his employer’s

responsibility for causing Dunn’s injuries. Specifically, it relies on

Section 417.001(b) applies only “[i]f a benefit is claimed by an injured

employee or legal beneficiary of the employee”—meaning it is only applicable

where the employer is a subscriber because only then can an employee claim

benefits under the Act. Id. § 417.001(b). And when it applies, “the insurance

carrier is subrogated to the rights of the injured employee and may enforce the

liability of the third party in the name of the injured employee or the legal

beneficiary.” Id. Again, the text makes clear that Chapter 417 applies solely to

subscribers, as nonsubscribers do not carry such insurance coverage. And

“[t]he insurance carrier’s subrogation interest is limited to the amount of the

total benefits paid or assumed by the carrier to the employee or the legal

beneficiary,” less any reduction for proportionate responsibility attributable to

the employer, meaning this chapter is only relevant where a subscribing

employer’s insurance carrier has paid out benefits. Id. Thus, Chapter 417

governs third-party liability when the employee is covered by workers’

compensation. Further, proportionate responsibility does not decrease Dunn’s

recovery, it simply determines the amount that ETMC Athens must pay.

16

evidence submitted by Dunn herself, including expert testimony on the

EMT’s duties, breach, and causation; testimony from Dunn and her

co-worker (both emergency-department nurses) that the EMT

negligently harmed Dunn; the EMT’s own admission that, if he did what

Dunn accused him of doing (which he denied), he would have been

negligent and violated an EMT’s standard of care; and Dunn’s treating

physicians’ testimony that a strike from a stretcher caused her injuries.

In response, Dunn argues that ETMC Athens must produce its

own expert testimony to establish an EMT’s standard of care and that

the EMT caused Dunn’s injuries by violating that standard. Relying on

the Tyler Court’s decision dismissing her own claims against the EMT

because she failed to timely provide an expert report, Dunn argues that

the Texas Medical Liability Act and the “law of the case” require ETMC

Athens to provide its own expert report supporting the EMT’s

responsibility. “As ETMC Athens did not designate an expert on any

topic,” she argues, “there is no such evidence in the record.”

We disagree. To begin, the Tyler Court dismissed Dunn’s claims

against the EMT and his employer because the Medical Liability Act

required her, as a “claimant,” to timely produce expert reports

supporting her health care liability claims. See ETMC EMS, 2020 WL

562971, at *8; see also TEX. CIV. PRAC. & REM. CODE § 74.001(a)(2)

(“‘Claimant’ means a person . . . seeking or who has sought recovery of

damages in a health care liability claim.”), (13) (“‘Health care liability

claim’ means a cause of action against a health care provider or

physician . . . .”). But because ETMC Athens is not a “claimant”

asserting a health care liability claim, the Medical Liability Act does not

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apply and does not require it to produce expert reports. See Tex. W. Oaks,

371 S.W.3d at 178–79 (“Only claimants are obligated to serve expert

reports on physicians or health care providers” and “a ‘claimant’ is

broadly defined as a ‘person’ . . . bringing [a health care liability claim].”

(citing TEX. CIV. PRAC. & REM. CODE § 74.001(a)(2))).

Dunn argues, however, that the Tyler Court’s holding that she

could not establish her health care liability claims against the EMT

without expert testimony is now binding on ETMC Athens’s attempt to

assign responsibility to the EMT as well. But ETMC Athens is not

asserting a health care liability claim under the Medical Liability Act,

and any finding of responsibility on the part of the EMT or his employer

will impose no liability on them. See TEX. CIV. PRAC. & REM. CODE

§ 33.004(i). Moreover, at this point, the proportionate-responsibility

statute only requires ETMC Athens to submit sufficient evidence to

create a fact issue regarding the EMT’s responsibility. See id.

§ 33.004(l); see also Gregory v. Chohan, 670 S.W.3d 546, 566 (Tex. 2023)

(plurality op.) (“The similarity between the statutory

responsible-third-party standard and the no-evidence summary

judgment standard is obvious.”). Neither the Medical Liability Act nor

the proportionate-responsibility statute require ETMC Athens to

produce expert testimony to create a fact issue sufficient to survive

Dunn’s motion to strike. See TEX. R. CIV. P. 166a(i) cmt. (“To defeat a

motion made under paragraph (i), the respondent is not required to

marshal its proof; its response need only point out evidence that raises

a fact issue on the challenged elements.”).

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We need not further detail the evidence here. Having reviewed

the record, we conclude that it contains sufficient evidence to create a

fact issue regarding the EMT’s and his employer’s responsibility for

causing Dunn’s injuries. See Sw. Elec. Power Co. v. Grant, 73 S.W.3d

211, 215 (Tex. 2002); see also King Ranch, Inc. v. Chapman, 118 S.W.3d

742, 751 (Tex. 2003) (“[A] no-evidence summary judgment is improperly

granted if the respondent brings forth more than a scintilla of probative

evidence to raise a genuine issue of material fact.”).

Because the proportionate-responsibility statute applies to an

employee’s negligence claim against a nonsubscribing employer, the

Workers’ Compensation Act does not prohibit the employer from

designating responsible third parties, and sufficient evidence supports

the designation here, we conclude that the trial court abused its

discretion in construing and applying the law when it granted Dunn’s

motion to strike ETMC Athens’s designation of the EMT and his

employer as responsible third parties.

III.

No Adequate Remedy by Appeal

ETMC Athens is only entitled to mandamus relief if, in addition

to demonstrating a clear abuse of discretion, it establishes that it has no

adequate remedy by appeal. In re Coppola, 535 S.W.3d 506, 508 (Tex.

2017) (orig. proceeding) (per curiam). We held in Coppola that a

defendant who shows that the trial court abused its discretion by

denying a motion for leave to designate responsible third parties

necessarily lacks an adequate appellate remedy because the improper

denial “would skew the proceedings, potentially affect the outcome of the

litigation, and compromise the presentation of the relator’s defense in

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ways unlikely to be apparent in the appellate record.” Id. at 509–10

(citing In re CVR Energy, Inc., 500 S.W.3d 67, 81–82 (Tex. App.—

Houston [1st Dist.] 2016, orig. proceeding [mand. denied])). We have

since reaffirmed this holding in a number of similar cases. See, e.g., In

re YRC Inc., 646 S.W.3d 805, 810 (Tex. 2022) (orig. proceeding) (per

curiam); Gonzales, 619 S.W.3d at 264–65; Mobile Mini, 596 S.W.3d at

787–88.

Although Coppola addressed the erroneous denial of an initial

motion for leave to designate a responsible third party, we have noted

that a court’s erroneous striking of a party’s RTP designation is at least

“arguably analogous.” In re Eagleridge Operating, LLC, 642 S.W.3d 518,

526 (Tex. 2022) (orig. proceeding) (denying mandamus relief because the

trial court properly struck the designation). In both situations, the

denial of relief would impair the defendant’s “significant right” to “allow

the fact finder to determine the proportionate responsibility of all

responsible parties.” And in both situations, the same substantive right

is involved. We conclude that, by demonstrating that the trial court

abused its discretion by striking its designation of the EMT and his

employer as responsible third parties, ETMC Athens has necessarily

demonstrated that it lacks an adequate appellate remedy.

IV.

Conclusion

Having concluded that the trial court abused its discretion by

striking ETMC Athens’s designation of responsible third parties and

that ETMC Athens lacks an adequate remedy by appeal, we

conditionally grant mandamus relief and order that the trial court

vacate that order.

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Jeffrey S. Boyd

Justice

OPINION DELIVERED: April 25, 2025

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