Robert Earl Warnke v. Nabors Drilling USA, L.P., NDUSA Holdings Corp., and Bruce Wilkinson

Opinion issued August 25,

2011.

In The

Court of Appeals

For The

First District of Texas

NO. 01-09-00734-CV

____________

ROBERT EARL WARNKE, Appellant

V.

NABORS DRILLING USA, L.P., NDUSA HOLDINGS CORP., AND

BRUCE WILKINSON, Appellees

On Appeal from the 157th District Court

Harris County, Texas

Trial Court Cause No. 2007-21185

OPINION ON REHEARING

Appellees

Nabors Drilling USA, L.P., NDUSA Holdings Corporation, and Bruce Wilkinson

filed a motion for rehearing and a motion for en banc reconsideration of our

opinion issued on April 7, 2011. We

grant rehearing, deny as moot their motion for reconsideration en banc,

withdraw our opinion and judgment, and issue this opinion.

Robert Earl Warnke filed negligence,

fraud, and negligent misrepresentation claims against Nabors Drilling USA,

L.P., NDUSA Holdings Corporation, and Bruce Wilkinson arising out of his

workplace injury and his claim for workers’ compensation. [1] The

trial court granted a traditional summary judgment against Warnke disposing of

all claims and all parties. Warnke

contends the trial court erred in granting summary judgment because (1) Nabors and

NDUSA Holdings failed to establish that they provided him with pre-injury notice

of coverage and such notice is required for it to claim subscriber status under

the Texas Workers’ Compensation Act (the “Act”); (2) a genuine issue of

material fact existed whether Wilkinson was an independent contractor and

therefore covered under the Act’s exclusive remedy provision; and (3) his

claims for injuries arising from Nabors’s alleged fraudulent and negligent

misrepresentation constituted separate injuries from his on-the-job injury and

fell outside the protection of the Act’s exclusive remedy provision.

We affirm in part, reverse in part,

and remand for further proceedings.

Background

In December 2006,Warnke suffered an

on-the-job injury at Nabors’s yard when a pipe connected by a co-worker, Bruce

Wilkinson, came free and crushed his hand.

In his affidavit, Warnke testified that his supervisor told him before

his injury that he was not covered by workers’ compensation insurance and that after

his injury an employee in Nabors’s human resources department, Brandon Cannady,

denied Nabors’s responsibility for Warnke’s medical expenses. [2] Warnke’s wife testified by affidavit that

Cannady told her that Warnke was not a Nabors employee and Nabors would not

provide him workers’ compensation coverage.

Warnke also alleged that Nabors and NDUSA Holdings never

provided him written notice of coverage under workers’ compensation insurance

before his injury. Eight months after

the accident and about three months after filing suit, Warnke began receiving workers’

compensation benefits from Nabors’s workers’ compensation carrier.

Warnke

filed suit against Nabors for negligence, fraud, and negligent

misrepresentation, against NDUSA Holdings for negligence,

and against Wilkinson for negligence. [3] In his original petition, Warnke claimed that

he and Wilkinson were both employees of Nabors.

He later amended his petition to plead in the alternative that Wilkinson

was an independent contractor.

Nabors, NDUSA

Holdings, and Wilkinson filed a traditional motion for summary judgment arguing

that no genuine issue of material fact existed because the Act’s exclusive

remedy provision bars Warnke’s recovery.

Nabors, NDUSA Holdings,

and Wilkinson argued that subscriber status does not depend on providing the

employee with pre-injury notice of coverage.

Nabors—the only defendant sued for fraud and negligent misrepresentation

claims—also asserted that the exclusive remedy provision barred Warnke’s fraud

and negligent misrepresentation claims. Warnke

responded that (1) Nabors and NDUSA Holdings were not subscribers because they failed to give Warnke notice

of coverage and their insurance provider was not authorized to act in Texas;

(2) a fact issue exists regarding whether Wilkinson was an independent

contractor and therefore not covered by the exclusive remedy provision; and (3)

his fraud and negligent misrepresentation claims arise from a separate injury

from the on-the-job injury covered by the Act.

The trial court granted summary judgment in favor of Nabors, NDUSA Holdings, and Wilkinson on all claims.

Summary Judgment Standard of Review

We review a trial court’s summary

judgment de novo. Valence Operating

Co. v. Dorsett , 164 S.W.3d

656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v. Knott , 128 S.W.3d 211, 215 (Tex.

2003). Under the traditional standard

for summary judgment motions, the movant has the burden to show that no genuine

issue of material fact exists and the trial court should grant judgment as a

matter of law. Tex. R. Civ. P. 166a(c); KPMG Peat Marwick v. Harrison

Cnty. Hous. Fin. Corp. , 988

S.W.2d 746, 748 (Tex. 1999). The motion

must state the specific grounds relied upon for summary judgment. Tex.

R. Civ. P. 166a(c) . When reviewing a summary judgment

motion, we take as true all evidence favorable to the nonmovant, and indulge

every reasonable inference and resolve any doubts in the nonmovant’s

favor. Dorsett , 164 S.W.3d at 661 ; Knott , 128 S.W.3d at 215 . A defendant moving for traditional summary

judgment must conclusively negate at least one essential element of each of the

plaintiff’s causes of action or conclusively establish each element of an

affirmative defense. Sci. Spectrum,

Inc. v. Martinez , 941

S.W.2d 910, 911 (Tex. 1997).

Exclusive Remedy Under the Workers’ Compensation Act

The Act is the exclusive remedy for

non-intentional, “work-related injuries” of an employee, and exempts the

employer, its agents, and its employees from common-law liability claims based

on negligence or gross negligence. See Tex.

Lab. Code Ann . § 408.001(a) (West 2006); [4] Reed

Tool Co. v. Copelin , 689

S.W.2d 404, 406 (Tex. 1985). The

exclusive remedy provision protects the employer in exchange for prompt

remuneration to the employee who is relieved of the burden of proving the

employer’s negligence. Hulshouser v.

Tex. Workers’ Comp. Ins. Fund ,

139 S.W.3d 789, 792 (Tex. App.—Dallas 2004, no pet.). The Act defines “injury” to mean, “damage or

harm to the physical structure of the body and a disease or infection naturally

resulting from the damage or harm.” Tex. Lab. Code Ann . § 401.011(26) (West

Supp. 2010).

The

exclusive remedy provision is an affirmative defense that the defendant must

plead and prove. See Exxon Corp. v. Perez , 842 S.W.2d 629 , 630–31 (Tex. 1992); AMS

Const. Co. v. K.H.K. Scaffolding Houston, Inc. , No. 01-09-00360-CV, 2011 WL

1598745, at *10 (Tex. App.—Houston [1st Dist.] (Apr. 28, 2011, no pet.) (citing

Pierce v. Holiday, 155 S.W.3d 676, 678 (Tex. App.—Texarkana 2005, no

pet.)). To demonstrate that a common law

claim is barred by the Act, the defendant must show that the injured worker was (1) its employee

at the time of the work-related injury and (2) covered by workers’ compensation

insurance. See Garza v. Excel Logistics, Inc. , 161 S.W.3d 473 , 476–77 (Tex. 2005); Martinez v. H.B. Zachry Co. , 976 S.W.2d

746, 748 (Tex. App.—Houston [1st Dist.] 1998, pet. denied). Once these requirements are satisfied, the exclusive remedy

provision is triggered and all employee claims of work-related negligence and

gross negligence are barred. See Tex. Lab. Code Ann . § 408.001; see also Reed Tool ,

689 S.W.2d at 406 . Warnke does not

challenge either of these elements of the exclusive remedy defense. He contends instead that there is another

requirement that must be satisfied to prevail on this defense: pre-injury

notice of coverage.

A.

Notice and Subscriber Status

Warnke contends that Nabors is not entitled to the exclusive remedy

defense unless it provides its employees with pre-injury notice of workers’

compensation insurance coverage. He

asserts that Nabors and NDUSA Holdings failed to give such notice, and

thereby lost their subscriber status and the protection of the exclusive remedy

provision. The Act requires employers

to notify “each employee . . . whether or not the employer has workers’

compensation insurance coverage.” Tex. Lab. Code Ann . § 406.005 (West

2006). Failure to give notice

constitutes an administrative violation punishable by a fine. See

id. § 406.005(e); Wesby v. Act Pipe & Supply, Inc. ,

199 S.W.3d 614, 618 (Tex. App.—Dallas 2006, no pet.).

Courts in

this state, including this court, have held that the exclusivity bar does not

hinge on whether notice has been provided to the employee. See,

e.g. , Wesby , 199 S.W.3d at 618 ; see also Blazik v. Foley’s, Inc. , No.

01-96-01140-CV, 1998 WL 788848 , at *3 (Tex. App.—Houston [1st Dist.] Nov. 12,

1998, no pet.) (mem. op., not designated for publication). Although Nabors provided no evidence to show

it gave pre-injury coverage notice to Warnke, the Act and the exclusivity

provision apply even without such notice. [5]

Nabors

presented sufficient evidence otherwise to demonstrate subscriber status under

the Act. Neither party contests Warnke’s

status as an employee at the time of his injury. Further, Nabors attached an affidavit from

its insurance carrier’s managing director stating that his company provided

workers’ compensation insurance to Nabors at the time of the accident. Nabors also attached the Texas Department of

Insurance’s certification of the carrier’s authority to provide insurance in

Texas. Nabors therefore satisfied its

burden to demonstrate subscriber status and triggered the exclusive remedy

provision of the Act. Accordingly, we

hold that the exclusive remedy provision bars Warnke’s common law negligence

claims against Nabors and NDUSA

Holdings for the on-the-job injury of his hand.

We

overrule Warnke’s complaint as to pre-injury notice and Nabors and NDUSA

Holding’s subscriber status.

B . Employee or Independent

Contractor

Warnke next contends the Act’s exclusive remedy provision does not apply

to his negligence claim against Wilkinson because Wilkinson failed to prove

conclusively that he was an employee of Nabors.

See Tex. Lab.

Code Ann . § 408.001(a); see Hughes Wood Prod. v. Wagner , 18 S.W.3d 202, 206 (Tex. 2000). While an employer’s exclusive remedy

generally covers the liability of its employees, the same protection does not

apply to independent contractors without some showing that the employer

exercised “employer-like” control over the contractor. See

Garza , 161 S.W.3d at 476–77.

The only summary judgment evidence Nabors and Wilkinson submitted for

Wilkinson’s employment status was their second amended answer and Warnke’s

amended petition. Nabors and Wilkinson

argue that Warnke made a judicial admission that Wilkinson was an employee in

his amended petition. “Assertions of fact, not plead in the

alternative, in the live pleadings of a party are regarded as formal judicial

admissions.” Holy Cross Church of God in Christ v. Wolf , 44 S.W.3d 562, 568

(Tex. 2001). An admission in a pleading

must be deliberate, clear, and unequivocal to constitute a judicial admission. Bowen

v. Robinson , 227 S.W.3d 86, 94 (Tex. App.—Houston [1st Dist.] 2006, pet.

denied). Warnke’s first amended

petition labeled Wilkinson as a “co-employee” of Nabors, but it also asserted

in the alternative that he was an independent contractor. Pleading in the alternative does not

constitute a judicial admission. See id. at 95 . Labeling

Wilkinson as both a “co-employee” and an independent contractor constitutes

some evidence of both propositions—that Wilkinson is either a co-employee or an

independent contractor. The pleading is

not so clear and unequivocal to prove his employment status conclusively.

As summary judgment proof, Nabors and

Wilkinson also relied on their second amended answer, which named Wilkinson as

a “co-employee.” A movant’s own

pleadings do not constitute summary judgment evidence as a general rule. Powell

v. McCauley , 126 S.W.3d 158, 162 (Tex. App.—Houston [1st Dist.] 2003, no

pet.). The second amended answer,

therefore, amounts to no evidence in support of summary judgment. See id.

On rehearing, Nabors and

Wilkinson rely on (1) Wilkinson and Warnke’s identical agreements with Re-Cal

Services, Inc. and (2) their I-9 forms that identified Wilkinson and Warnke as

Nabors’s employees. While these

documents were not incorporated into Nabors’s summary judgment motion, Warnke

included them in the summary judgment record as part of his response. The trial court, therefore, could rely on the

entire record, including these documents, as a basis for ruling on the summary

judgment motion. See Wilson v. Burford , 904 S.W.2d 628, 629 (Tex. 1995).

Nabors and Wilkinson assert that because Warnke

and Wilkinson signed identical employment documents, and it is undisputed that

Warnke is Nabors’s employee, Wilkinson must also be Nabors’s employee. A ll of the summary judgment evidence demonstrates that

Wilkinson was employed in the same manner as Warnke. Therefore, it is contradictory to say that

Warnke is an employee but a fact issue exists on Wilkinson’s employment

status.

We overrule Warnke’s complaint with regard to his common law negligence

claim against Wilkinson.

C. Fraud and Negligent Misrepresentation

Warnke next contends that his fraud and negligent misrepresentation claims

against Nabors are for injuries separate from his on-the-job hand injury and,

therefore, are not covered by the Act or its exclusive remedy provision. In his amended petition, Warnke claims that

Nabors committed fraud and made negligent misrepresentations by deceiving him about

his coverage under workers’ compensation insurance. In his petition, he also alleges that he

“suffered great anxiety and emotional distress upon learning that he did not

have coverage,” that he had to take out “a loan against his home to obtain

funds to pay for his medical and living expenses,” and that he suffered

unspecified “economic and emotional damage” as a result of Nabors’s fraudulent

and negligent misrepresentations. [6]

Nabors

raised three arguments in its traditional summary judgment motion. First, Nabors asserted that none of its

employees made any fraudulent misrepresentations to Warnke about his insurance

coverage. Second, even if its employees

made misrepresentations, Nabors contended that it conclusively negated the

specific intent requirement of the intentional tort exception to the Act’s

exclusivity defense—an element for which Warnke would bear the burden of proof

at trial. Third, Nabors maintained that Warnke’s fraud and negligent

misrepresentation claims do not fall within intentional tort exception to the

exclusivity defense. We address each of

these defenses in turn.

1. No Misrepresentations

Nabors denies that it made any fraudulent

misrepresentations to Warnke. In a

summary judgment appeal, however, w e must take as true all evidence

favorable to the nonmovant, Warnke, and indulge every reasonable inference and

resolve any doubts in the nonmovant’s favor.

See Dorsett , 164

S.W.3d at 661 . Warnke attached his and his wife’s affidavits, in which they detailed

misrepresentations by Brandon Cannady, an employee in Nabors’s human resources

department, regarding Warnke’s workers’ compensation status. Under the summary judgment standard of

review, we must presume that the misrepresentations were made regarding

Warnke’s coverage under workers’ compensation insurance. [7]

2. Nabors’s Intent

Nabors contends that Warnke presented no evidence of any intent by any

Nabors employee to commit fraud. Nabors,

however, filed a traditional summary judgment motion instead of a no-evidence

motion. Nabors therefore had the burden

of disproving Warnke’s claim as a matter of law. See Sci. Spectrum , 941 S.W.2d at 911 .

Nabors next contends that it satisfied its burden of disproving Warnke’s fraud

claim by conclusively negating intent through the testimony of one of its

managers, Duke Dixon. Dixon’s testimony

is not dispositive of Nabors’s intent.

Dixon denied speaking with Mrs. Warnke.

He also denied telling Warnke that he was not covered by insurance, and

testified that he told Warnke to “check with his supervisor.” Warnke did not rebut this denial, but offered

affidavit evidence of misrepresentations by another Nabors employee,

Cannady. Nabors contends that Cannady

was not its employee, or was not a managerial employee, but without citing to

evidence in the record to support this contention. [8]

3. Intentional

Torts, Separate Acts, & Independent Injuries

In its

summary judgment motion, Nabors contended that Warnke’s fraud and negligent

misrepresentation claims do not fall within the intentional tort exception to

the exclusivity defense, and that the exception is limited to direct assaults

by the employer on the employee. See Medina v. Herrera , 927 S.W.2d 597 ,

601–02 (Tex. 1996) (employee’s claim against employer for on-the-job assault

was not barred by exclusivity provision under certain limited

circumstances). In his summary judgment

response, Warnke argued that his claim was not based on that exception and that

the Act does not apply to his fraud and negligent misrepresentation claims. According to Warnke’s response, the

exclusivity defense does not apply when the liability facts occurred at a

separate time—after his injury—and caused injuries separate from his on-the-job

hand injury. Nabors’s summary judgment

motion did not address this claimed exception to the exclusivity defense. In its reply, however, Nabors contended that

these additional economic and emotional injuries were “directly related” to

Warnke’s hand injury and would not have occurred but for the hand injury.

a. The

Intentional Tort Exception

Nabors

attempts to reshape Warnke’s arguments in terms of the intentional tort

exception to the Act’s exclusive remedy provision. Warnke’s separate-injury argument, however,

goes to the applicability of the Act in its entirety, not to an exception to

the exclusivity remedy.

Under the

intentional tort exception, “an employer can, under certain circumstances, be

sued at common law for its own intentional torts, even though it provides

insurance under the Act.” Urdiales v. Concord Techs. Del., Inc. ,

120 S.W.3d 400, 406 (Tex. App.—Houston [14th Dist.] 2003, pet. denied). The receipt of workers’ compensation benefits

and recovery against the employer for an intentional tort are generally

mutually exclusive remedies. See Medina , 927 S.W.2d at 601 . The exception to the exclusivity bar is a

narrow one. Reed Tool , 689 S.W.2d at 407 .

“[M ]ere

negligence or willful negligence will not suffice” to fall within the

intentional tort exception. Urdiales , 120 S.W.3d at 406 .

Nabors’s reliance on Medina

conflates the intentional tort exception with the separate injury issue. In Medina ,

both the physical assault and the resulting injury were the same for the

intentional tort claims and the compensation claim under the Act. See id.

at 598 . Here, the record contains

evidence of two different acts—the crushing of Warnke’s hand and the

misinformation regarding insurance coverage—and allegations of injuries

separate from his on-the-job injuries.

b. Separate

Acts & Independent Injuries

Warnke

contends that the Act does not apply to his fraud and negligence

misrepresentation claims. Texas courts have recognized the

limitations of the exclusivity defense regarding separate wrongful conduct from

the acts that caused the on-the-job injury and an employee’s resulting distinct

injuries.

In Aranda v. Insurance Co. of

North America , the Texas Supreme Court upheld an employee’s right to bring

a claim for the breach of the duty of good faith and fair dealing against a

workers’ compensation insurance carrier.

748 S.W.2d 210, 214 (Tex. 1988). The

Court rejected the argument that the exclusivity defense barred the claim:

[T]he remedies afforded by the statute are exclusive

only if the injury complained of is an injury contemplated by the Act—a

personal injury sustained in the course of employment. The Act was not intended to shield

compensation carriers from the entire field of tort law.

Id. In analyzing whether the Act barred the

employee’s claim, the Court in Aranda

noted that the employee’s liability claim was based on acts “distinct” from the

acts that formed the basis of the on-the-job injury. Id. Additionally, when the claim is for a second

injury in the form of impairment of legal rights, that injury occurs “after the

job-related injury.” Id. (citing

Massey v. Armco Steel Co. , 652 S.W.2d

932, 933 (Tex. 1983)). The Court held

that the employee can recover only if he or she demonstrates both that the

“intentional act is separate from the compensation claim” and this separate act

“produced an independent injury.” Id. Aranda

recognized that an injury independent from a failure to pay compensation

benefits included losses to credit and reputation or “an inability to meeting

basic living expenses.” Id. at 212, 214.

This court adopted the language in Aranda and recognized that “injured

employees ‘may in the interim incur substantial damages because of an inability

to meet basic living expenses or pay for medical care.’” Tex.

Mut. Ins. Co. v. Ruttiger , 265 S.W.3d 651, 669 (Tex. App.—Houston [1st

Dist.] 2008, pet. granted) (citing Aranda ,

748 S.W.2d at 212 ). [9] In Ruttiger , this court held that t he aggravation of an on-the-job injury as a

result of the insurance carrier preventing prompt medical treatment can be

considered a separate injury. Id. at 670–71.

Warnke’s

claims are similar to those in Aranda ,

though he alleges wrongful conduct against his employer instead of an insurance

carrier. Warnke’s petition identifies

injuries he allegedly suffered as a result of Nabors’s misrepresentations,

separate from his personal injury claims, including economic damages as a

result of a loan. Warnke also claims

that the financial stress caused mental anguish and that this stress

constituted an independent injury. [10]

i. Fraudulent

Misrepresentations

While Aranda and Ruttiger were suits against insurance carriers, Harris v. Varo , 814 S.W.2d 520, 526 (Tex.

App.—Dallas 1991, no writ), extended the holding in Aranda to fraudulent misrepresentation claims against employers. In Harris ,

the employee suffered an on-the-job injury.

She sued for that on-the-job injury as well as for her employer’s

fraudulent misrepresentation of the identity of its insurance carrier. The Dallas Court of Appeals overturned the

trial court’s summary judgment on a technical ground—the employer failed to

address the employee’s fraud claim. Harris , 814 S.W.2d at 526 . Nevertheless, the court stated that the fraud

claim was wholly separate from the employee’s claim for her physical

injuries. Id. “Consequently, we hold

that the exclusivity provision of the act does not bar [the employee’s] claim

against [the employer] for the intentional tort of fraud.” Id. at

526 . That part of Harris addressing the validity of a fraud claim against an employer

was dicta, but this court adopted it in Blazik

v. Foley’s Inc . No. 01-96-01140-CV, 1998 WL 788848 , at *4 (Tex.

App.—Houston [1st Dist.] Nov. 12, 1998, no pet.). We stated in Blazik that the Act “does not bar an employee from bringing a

separate claim against an employer for fraudulent misrepresentations concerning

its insurance coverage.” Id.

We are not bound by Blazik or Harris . See Tex. R. App. P. 47.7 ( stating opinions

published before January 1, 2003 and designated “do not publish” are not

binding precedent) ; In re Budzyn , 206 S.W.3d 721, 723 (Tex.

App.—Houston [1st Dist.] 2006, no pet.) (stating opinion by one Texas appellate

court is not binding on other Texas appellate courts). We are persuaded, however, that the rationale

of Aranda and Massey applies not only to a claim against an insurance carrier,

but also to a claim against the employer for misrepresentations concerning

insurance coverage. [11]

Additionally, a majority of jurisdictions have found that deceit by

the employer or insurance carrier that impairs an employee’s legal rights under

workers’ compensation law constitutes a claim separate from the on-the-job

physical injury. See 6 Arthur Larson & Lex Larson, Larson’s Worker’s Compensation Law , § 104.03[3], 104.03D[3]

n.6, 7 (2010). As summarized by

Professor Larson, these cases distinguish between the employee’s physical

injuries and injuries that impair the employee’s legal rights. These courts hold that, as a result of the

separate injury, the workers’ compensation statutes do not bar recovery for

these fraudulent acts. See, e.g. , Persinger v. Peabody Coal Co. , 474 S.E.2d 887 , 896–97 (W. Va. 1996)

(holding workers’ compensation statute does not preclude employee from

maintaining separate and distinct cause of action against employer when

employer makes misrepresentations with intent of depriving employee of benefits

rightfully due to him); see also

Vandermark v. Southland Corp. , 525 N.E.2d 1374 , 1376–77 (Ohio 1988)

(holding employee has tort cause of action when employer never filed employee’s

workers’ compensation claim but deceived employee that it had so filed); Caban v. Gottlieb Iron Works , 558

N.Y.S.2d 810, 813 (1990) (holding exclusive remedy bar did not apply to common

law action against employer for impairing employees’ right to sue third-party

tortfeasor). These courts’ recognition

of a distinction between personal, on-the-job injuries under workers’

compensation statutes and separate, independent injuries is consistent with the

Texas Supreme Court’s decisions in Aranda

and Massey . See Aranda , 748

S.W.2d at 214 ; Massey , 652 S.W.2d at 933 .

ii. Negligent

Misrepresentations

Neither

party argues below or in their briefs that a claim of negligent

misrepresentation against the employer should be treated differently than a claim

of fraud. Thus, we do not address

whether negligent misrepresentation claims should be barred on other grounds. [12] See

State Farm Lloyds v. Page , 315 S.W.3d 525, 532 (Tex. 2010) (“Summary

judgment may not be affirmed on appeal on a ground not presented to the trial

court in the motion.”).

iii. Warnke’s

Claims

That brings

us to the evidence in this case. Nabors

contends on rehearing that Warnke had the burden to rebut the exclusivity

defense by offering summary judgment evidence that he suffered injuries

separate from the hand injury for which he received workers’ compensation

benefits. In essence, Nabors asserts

that Warnke must set forth a counter-affirmative defense to its

exclusivity provision affirmative defense. [13] Warnke contends that Nabors, as the

movant for a traditional summary judgment relying on an affirmative defense,

had the burden to demonstrate that the Act and its exclusive remedy provision

applies. Thus, Warnke asserts Nabors had

the burden to show that he suffered a work-related, physical injury under the

Act. See Tex. Lab.

Code Ann . § 408.001(a).

Neither party offered any proof on this issue. Nabors merely argued Warnke’s injured hand

and the misrepresentations of his insurance coverage amounted to the same

injury. Employing a “but for” analysis,

Nabors asserted that if Warnke “had not received the hand injury, the

discussion of workers’ compensation benefits would have never occurred.” Warnke relied on his pleadings that described

Nabors’s alleged hostility to his claim and the eight month delay before he

received benefits. Therefore, the

allocation of the burden of proof is critical to determining the propriety of

the trial court’s summary judgment.

We reject Nabors’s contention that Warnke’s failure to prove a separate

act resulting in a separate injury justifies the trial court granting its

traditional summary judgment motion for two procedural reasons. First, Nabors did not argue to the trial

court or in its original brief on appeal that Warnke bore the burden of proving

a separate injury or that Warnke failed to prove a separate injury. Instead, it argued that the injuries would

not have occurred but for his hand injuries and therefore were “directly

related” to Warnke’s compensation claim as a matter of law. Because this issue was not presented to the

trial court, the motion did not inform Warnke that he needed to present

evidence of a separate injury. See Tex.

R. Civ. P. 166a(c); KPMG Peat Marwick , 988 S.W.2d at 748 . Procedurally, this issue was not properly

preserved. See Page , 315 S.W.3d at 532 .

A second procedural reason is that Nabors filed a traditional summary

judgment motion and not a no-evidence motion.

Therefore, regardless of the ultimate burden of proof at trial, it was

Nabors’s burden in its motion to prove that Warnke did not suffer an

independent injury. See Tex. R. Civ. P. 166a(c);

KPMG Peat Marwick , 988 S.W.2d at 748 .

We sustain

Warnke’s complaint as to his fraud and negligent misrepresentation claims

against Nabors.

C onclusion

We affirm the trial court’s judgment regarding

Warnke’s negligence claim against all parties.

We reverse the trial court’s judgment on his fraud and negligent

misrepresentation claims against Nabors.

We remand to the trial court for further proceedings consistent with

this opinion.

Harvey

Brown Justice

Panel consists of Justices Jennings,

Higley, and Brown.

[1] Appellees

assert that NDUSA Holdings is

the general partner of Nabors. Warnke never

disputed the contention that both Nabors and NDUSA Holdings are employers within the Workers’ Compensation Act’s

exclusive remedy provision.

[2] In the

first report of injury, Nabors stated that Warnke was a third party contractor

working for Express Payroll. Express

Payroll entered into a “contractor agreement” with Nabors to act as a “payroll

source” for Nabors.

[3] Warnke

clarified in his motion for rehearing that negligence was his only claim

against NDUSA Holdings.

[4] Section 408.001(a) provides, “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 . . . a

work-related injury sustained by the employee.”

Tex. Lab. Code Ann. §

408.001(a) (West 2006).

[5] Warnke

asserts we should follow Ferguson v. Hosp.

Corp. Int’l Ltd. , 769 F.2d 268 (5th Cir. 1985), which held the failure to

comply with the notice requirement bars an employer from claiming subscriber

status. However, the Southern District

of Texas in Bradley v. Phillips Chemical

Co. , 484 F. Supp. 2d 604, 618 (S.D. Tex. 2007), aff’d , 337 F. App’x 397 (5th Cir. 2009), states Ferguson is no

longer binding precedent and lists several Texas appellate cases decided since Ferguson that have held that the

exclusivity provision does not hinge on pre-injury notice. Bradley ,

383 F. Supp. at 618 n.43.

[6] While

Warnke made these allegations in his pleading, he did not include evidence to

support his assertions in his response to Nabors and Wilkinson’s summary

judgment motion.

[7] On

rehearing, Nabors alternatively asserts that even if Cannady told Warnke that

Nabors was not responsible for his medical expenses, then that statement was

not a misrepresentation because the insurance company, not Nabors, was

responsible for payment of benefits.

Nabors did not raise a “truth” defense in its summary judgment motion

and therefore cannot rely on this ground to support summary judgment.

[8] Nabors

stated in its response to Warnke’s summary judgment reply that its attorney

informed Warnke in a letter that Cannady was never employed by Nabors. No summary judgment evidence, however, was

attached to support this contention.

[9] We

recognize that the Texas Supreme Court has been asked to overrule Aranda , but the case is still Texas

law. Petitioner’s Brief on Merits at

27–29, Tex. Mut. Ins. Co. v. Ruttiger ,

No. 08-0751 (filed Apr. 15, 2009).

Moreover, even if it were to limit Aranda ,

we would still have to consider Aranda ’s

underlying precedent in Massey v. Armco

Steel Co. , 652 S.W.2d 932, 933 (Tex. 1983), which utilized the same

separate act and injury analysis.

[10] In oral

argument, Warnke acknowledged that the jury should be instructed to only

consider mental anguish from the withholding of benefits and not mental anguish

associated with the physical injury of his hand.

[11] Contrary

to Nabors’s contention on rehearing, we are not recognizing a duty of good

faith and fair dealing for an employer in responding to its employees’ workers’

compensation claims.

[12] Nabors

on rehearing relies on Hair v. Pillsbury

Co. , No. 05-01-01354-CV, 2002 WL 1494922 , at *7 (Tex. App.—Dallas July 15,

2002, no pet.) (mem. op., not designated for publication), to support its

contention that the Act bars Warnke’s negligent misrepresentation claim. This case is not cited by Nabors in its original

brief, nor are its arguments addressed in Nabors’s brief. We do not determine, therefore, whether

Warnke’s negligent misrepresentations claims are actionable. Likewise, we also do not consider Nabors’s

arguments on rehearing that Warnke failed to present evidence of actual and

justifiable reliance or intent to defraud.

Because Nabors filed a traditional summary judgment motion rather than a

no-evidence motion, Warnke did not have the burden to prove the elements of his

claim. We also reject Nabors’s

contention on rehearing that our holding opens the door to negligent

misrepresentation claims or that it makes employers less likely to subscribe to

workers’ compensation coverage because they will be sued for negligent

misrepresentation.

[13] A counter-affirmative defense does not

seek to overcome the affirmative defense by denying the affirmative defense,

but seeks to establish an independent reason why the affirmative defense does

not bar the plaintiff’s claim. See Walters

v. Cleveland Reg’l Med. Ctr. ,

307 S.W.3d 292, 295 (Tex. 2010) (holding that when movant-defendant proved

statute-of-limitations affirmative defense, burden shifted to non-movant to

raise fact issue on lack of reasonable opportunity to discover and bring suit

within limitations period); G.C. Bldgs., Inc. v. RGS Contractors, Inc. ,

188 S.W.3d 739, 742 (Tex. App.—Dallas 2006, no pet.) (stating that if defendant

establishes affirmative defense in summary judgment motion, “ the burden then shifts to the party opposing the motion

to raise a genuine issue of material fact or show the defendant’s legal

position is unsound”); Resolution Trust Corp. v. Ammons , 836

S.W.2d 705, 710 (Tex. App.—Houston [1st Dist.] 1992, no writ) (stating that

plaintiff may defeat defendant’s summary judgment by raising a fact issue on

each element of its counter-affirmative defense).