In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-24-00262-CV ___________________________
EMILIANO MEDRANO, Appellant
V.
KERRY INGREDIENTS & FLAVOURS, INCORPORATED, Appellee
On Appeal from the 67th District Court Tarrant County, Texas Trial Court No. 067-309764-19
Before Sudderth, C.J.; Womack and Wallach, JJ. Memorandum Opinion by Justice Womack MEMORANDUM OPINION
I. INTRODUCTION
Appellant Emiliano Medrano appeals from an order granting summary
judgment for Appellee Kerry Ingredients & Flavours, Incorporated based on the
Texas Workers’ Compensation Act’s (the Act’s) exclusive-remedy provision and the
election-of-remedies doctrine. See Tex. Lab. Code Ann. § 408.001. We will affirm.
II. BACKGROUND
A. Medrano’s Factual Allegations
As alleged in his live pleading, Medrano had been employed by Kerry for
approximately four months on August 17, 2018, when he was asked by his supervisor
to work a conveyor belt for the first time. Medrano complained that he had neither
the proper training nor adequate supervision for such work. After his right hand
became caught in the conveyor belt, Medrano’s ring finger was severed. After the
accident, Medrano “had to go to different areas of the plant, bleeding out, before
finally reaching a supervisor,” who stopped production of the line. Medrano was
taken to the hospital, where he suffered the loss of the finger.
B. Medrano’s Lawsuit
Medrano filed suit against Kerry, alleging tort claims. According to Medrano,
Kerry was “liable for intentional, willful and wanton failure to disclose to [him] the
dangers associated with exposure to dangerous machinery[ and] the risks associated
2 with working in that type of atmosphere with no protective gear.” Medrano also
sought “exemplary and/or punitive damages.”
Kerry answered and asserted a general denial and several affirmative defenses,
including the workers’ compensation bar and the election-of-remedies doctrine.
C. Kerry’s Motion for Summary Judgment
Kerry moved for traditional summary judgment, arguing that Medrano’s claims
were barred “due to the applicability of the workers’ compensation bar . . . and [due
to the] election[-]of[-]remedies doctrine.” See id. It raised the workers’ compensation
bar as to any non-intentional tort claims, to the extent pleaded, and the election-of-
remedies doctrine as to all of Medrano’s claims, both intentional torts and non-
intentional torts, to the extent pleaded. In the motion, Kerry alleged that Medrano
was its employee and was covered by workers’ compensation insurance on the day of
the accident. Further, the motion asserted that Medrano had “applied for and
received workers’ compensation benefits” through the “Workers’ Compensation and
Employers’ Liability Policy issued to Kerry Ingredients & Flavours by Arch Indemnity
Insurance Company (the ‘Policy’).” And according to the motion, Medrano was
represented by counsel when he “applied for and received workers’ compensation
benefits in the form of medical and/or indemnity benefits.”
Kerry attached the following summary judgment evidence to its motion: the
“Employer’s First Report of Injury or Illness”; the Policy; an affidavit of Alma
LeMoine, a Senior Claims Examiner who oversaw workers’ compensation claims
3 under the Policy; an October 12, 2018 letter of representation from Medrano’s
attorney; Medrano’s responses to requests for admission; a “Notice of First
Temporary Income Benefit Payment”; a “Texas Workers’ Compensation Work Status
Report”; and Medrano’s deposition.
In LeMoine’s affidavit, she averred, in pertinent part:
• One of her duties as a Senior Claims Examiner was to “oversee workers’ compensation claims under workers’ compensation policies issued by Arch Indemnity Insurance Company,” who issued a “standard Texas workers’ compensation insurance policy to its insured, Kerry Ingredients.”
• That policy was effective from January 1, 2018, to January 1, 2019.
• She handled the workers’ compensation/employer’s liability claim arising out of Medrano’s alleged work-related injury while he was employed by Kerry.
• Arch Indemnity had paid $5,333.29 in workers’ compensation income benefits to Medrano and $7,681.24 in medical expenses to Medrano’s healthcare providers on his behalf.
• Medrano “was placed at maximum medical improvement on November 1, 2018[,] with a 2% whole body impairment rating, entitling him to six weeks of impairment income benefits.”
• Medrano “has also received, at no cost to himself, medical care under the workers’ compensation insurance policy issued by Arch Indemnity.”
In his responses to requests for admission, Medrano admitted that he was
working in the course and scope of his employment with Kerry when the injury
occurred; that Kerry was covered by a policy of workers’ compensation insurance
issued by Arch Indemnity on the date of the injury; that he had filed a workers’
compensation claim as a result of his injury; that it is his signature on the “Texas
4 Workers’ Compensation Work Status Report (DWC Form-73) dated November 1,
2018”; that he had received “indemnity benefits via the workers’ compensation claim”
with regard to his injury; that he had received temporary income benefits, impairment
income benefits, and medical care from Kerry’s workers’ compensation insurance
carrier; that he had “knowingly received economic benefit[s] from the workers’
compensation benefits provided by [his] Employer’s insurance carrier”; and that he
had been continuously represented by legal counsel since October 12, 2018, including
while receiving workers’ compensation insurance benefits.
D. Medrano’s Response and Kerry’s Reply
Medrano responded to the motion and argued generally that he did not make
an “informed election” of remedies. He did not address the part of Kerry’s motion
dealing with the workers’ compensation bar. As evidence, Medrano’s response
included the “Employer’s First Report of Injury or Illness,” the “Notice of First
Temporary Income Benefit Payment,” and his attorney’s October 12, 2018 letter of
representation.
Kerry replied to the response, highlighting portions of Medrano’s responses to
the requests for admission and deposition excerpts. Kerry argued, “Because
[Medrano’s] present intentional tort claim against [Kerry] is fundamentally
inconsistent with his earlier pursuit of compensation benefits, and because [Medrano]
is charged with knowledge of the ramifications of his action, he made an informed
5 choice of remedy which bars this subsequent intentional tort claim as a matter of
law.”
E. The Trial Court’s Grant of Kerry’s Summary Judgment Motion
After a hearing, the trial court granted the motion for summary judgment and
signed a final judgment that Medrano take nothing against Kerry.1 The order did not
specify the grounds upon which the trial court granted summary judgment. Medrano
appealed from that judgment.
III. DISCUSSION
In one issue, Medrano contends that the trial court erred by granting summary
judgment.2 While Medrano acknowledges that it is “well settled in Texas” that
“claims against an employer under the Act and for common[-]law intentional tort are
mutually exclusive” and that “the collection of workers’ compensation benefits by an
employee who subsequently alleges his injury was by intentional tort constitutes an
election of remedies and estops the employee from proceeding to recover damages
Earlier in the case, the trial court had granted a plea to the jurisdiction filed by 1
Kerry that had raised the workers’ compensation bar. We reversed the grant of that plea and remanded the case to the trial court, holding that “the trial court had no basis to grant a plea to the jurisdiction concerning an affirmative defense that . . . has nothing to do with jurisdiction.” Medrano v. Kerry Ingredients & Flavours, Inc., No. 02- 20-00247-CV, 2021 WL 1323432, at *4 (Tex. App.—Fort Worth April 8, 2021, no pet.) (mem. op.).
Medrano frames his issue in the form of a question: “Did the [t]rial [c]ourt err 2
when it granted Appellee’s motion for summary judgment, determining that Appellant’s application for and acceptance of workers’ compensation benefits was informed and a waiver of his right to damages for intentional tort?”
6 outside the Act,” he argues that his election was not made as the result of an informed
choice.
A. Standard of Review and Summary Judgment Law
We review de novo the trial court’s ruling on a motion for summary judgment.
Zive v. Sandberg, 644 S.W.3d 169, 173 (Tex. 2022) (citing Erikson v. Renda, 590 S.W.3d
557, 563 (Tex. 2019)). When doing so, “[w]e review the summary judgment record in
the light most favorable to the nonmovant, indulging every reasonable inference and
resolving any doubts against the motion.” Eagle Oil & Gas Co. v. TRO-X, L.P.,
619 S.W.3d 699, 705 (Tex. 2021).
For a traditional motion for summary judgment, the movant must show that no
genuine issue of material fact exists and that it is entitled to judgment as a matter of
law. Tex. R. Civ. P. 166a(c); Eagle Oil & Gas Co., 619 S.W.3d at 705. To meet this
burden, when the defendant is the movant, it must conclusively negate at least one
essential element of each of the plaintiff’s claims or conclusively prove all elements of
an affirmative defense. Stanfield v. Neubaum, 494 S.W.3d 90, 96–97 (Tex. 2016); see
Tex. R. Civ. P. 166a(b), (c).
When a trial court’s order granting summary judgment does not specify the
grounds on which the order is based, the appealing party must negate each ground
upon which the judgment could have been based. Rosetta Res. Operating, LP v. Martin,
645 S.W.3d 212, 226 (Tex. 2022); see also Malooly Bros., Inc. v. Napier, 461 S.W.2d 119,
121 (Tex. 1970); Villanueva v. RNA Fin. LLC, No. 02-23-00435-CV, 2024 WL
7 3365227, at *2 (Tex. App.—Fort Worth July 11, 2024, no pet.) (mem. op.). If an
appellant does not challenge each possible ground on which summary judgment could
have been granted, we must affirm the summary judgment on the unchallenged
ground, regardless of the unchallenged ground’s merit. Pounders v. Timely Prop. Sols.,
L.L.C., No. 02-22-00395-CV, 2023 WL 3114314, at *2 (Tex. App.—Fort Worth
Apr. 27, 2023, no pet.) (mem. op.); see Malooly Bros., Inc., 461 S.W.2d at 120–21.
B. Applicable Workers’ Compensation Law
The Texas Labor Code provides that 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 . . . for the death of or a
work-related injury sustained by the employee.” Tex. Lab. Code Ann. § 408.001(a).
To enjoy this liability protection, an employer must show that it was explicitly covered
for workers’ compensation at the time of the employee’s injury. Little v. Delta Steel,
Inc., 409 S.W.3d 704, 710 (Tex. App.—Fort Worth 2013, no pet.).
In the earlier appeal in this case, we set out the law regarding the exclusive-
remedy defense of the Act.
The Act provides that recovery of workers’ compensation benefits is the exclusive remedy of an employee covered by workers’ compensation insurance against the employer for a work-related injury sustained by the employee. Tex. Lab. Code Ann. § 408.001(a); Morales v. Liberty Mut. Ins. Co., 241 S.W.3d 514, 516 (Tex. 2007); Little[, ] 409 S.W.3d [at 710]. We have consistently recognized that the Act’s exclusive-remedy provision gives rise to an affirmative defense that is fit for a motion for summary judgment. See, e.g., Robinson v. Cox, No. 02-19-00370-CV, 2020 WL 7063289, at *1–2 (Tex. App.—Fort Worth Dec. 3, 2020, no pet.) (mem.
8 op.); Calhoun v. F. Hall Mowing Co., No. 02-09-00459-CV, 2011 WL 167231, at *4 (Tex. App.—Fort Worth Jan. 13, 2011, no pet.) (mem. op.); Downs v. Triad Denton Hosp., L.P., No. 2-05-303-CV, 2006 WL 820408, at *1 (Tex. App.—Fort Worth Mar. 30, 2006, no pet.) (mem. op.). As an “affirmative defense or ‘plea in bar,’” it “operates to prohibit the assertion of a cause of action and involves the final disposition of a case.” Tex. Underground, Inc. v. Tex. Workforce Comm’n, 335 S.W.3d 670, 675 (Tex. App.—Dallas 2011, no pet.).
Medrano, 2021 WL 1323432, at *2.
If an employee opts to receive workers’ compensation benefits for an injury
sustained in the scope of his employment, the employee may be considered to have
made an election of remedies and is, therefore, barred from seeking damages for an
intentional tort from his employer. Boullt v. Smith, No. 03-02-00303-CV, 2004 WL
2357881, at *4 (Tex. App.—Austin Oct. 21, 2004, no pet.) (mem. op.). “The election
doctrine . . . may constitute a bar to relief when (1) one successfully exercises an
informed choice (2) between two or more remedies, rights, or states of facts (3) which
are so inconsistent as to (4) constitute manifest injustice.” Bocanegra v. Aetna Life Ins.
Co., 605 S.W.2d 848, 851 (Tex. 1980).
C. Analysis
Kerry’s two grounds in its motion for summary judgment related to (1) the
exclusive-remedy provision of the Act and (2) the election-of-remedies doctrine.
Kerry’s first ground was raised solely as to any non-intentional tort claims Medrano
may have pleaded; its second ground was raised as to all claims in Medrano’s petition.
Medrano’s summary judgment response argued only whether he made an informed
9 choice under the election-of-remedies doctrine. Similarly, Medrano’s sole appellate
issue relates only to this prong of Kerry’s summary judgment motion. But, as noted
previously, the trial court’s order did not specify the grounds upon which it granted
summary judgment. Thus, although Medrano challenged the sole summary judgment
ground related to the intentional torts alleged, he did not challenge both grounds as to
any possible non-intentional torts pleaded.
Because the trial court did not specify a basis for its summary judgment ruling,
it could have relied upon the unchallenged ground—the exclusive-remedy provision
of the Act—in granting summary judgment on the non-intentional tort claims. See
Villanueva, 2024 WL 3365227, at *3. Thus, because Medrano did not challenge every
ground on which the summary judgment on those claims could have been based, we
are procedurally required to affirm the trial court’s ruling without regard to the merits
of Medrano’s non-intentional tort claims. See id.; see also Ursin v. Brand Energy Sols., Inc.,
No. 01-22-00651-CV, 2023 WL 3958375, at *2 (Tex. App.—Houston [1st Dist.]
June 13, 2023, no pet.) (mem. op.) (“To obtain reversal on appeal, an appellant must
challenge all possible grounds on which a summary judgment could have been
granted, whether properly or improperly.”). Therefore, we will address Medrano’s
argument on appeal only as to the intentional tort claims.
Under Texas law, Kerry bore the burden of proof on any election-of-remedies
defense. See Am. Cas. Co. of Reading, Penn. v. Martin, 97 S.W.3d 679, 685 (Tex. App.—
Dallas 2003, no pet.). Therefore, to prevail on summary judgment, Kerry must have
10 shown that, as a matter of law, Medrano made an informed choice between two
remedies. See id. To show that a plaintiff made an informed choice, there must be
proof that the plaintiff made a choice “with a full and clear understanding of the
problem, facts, and remedies essential to the exercise of an intelligent choice.”
Bocanegra, 605 S.W.2d at 852. Here, Kerry provided summary judgment evidence that
Medrano had made an informed choice to receive workers’ compensation benefits
rather than pursue his intentional tort claim.
At his deposition, Medrano testified that after the date of his accident on
August 17, 2018, he was off of work for about a month and, in that month, he
received weekly workers’ compensation benefits. Medrano further testified that
during his month off of work, he received temporary income benefits. In addition, all
of the medical expenses for the accident were paid under his workers’ compensation
claim. By October 12, 2018, Medrano was represented by legal counsel, who
continuously represented him for the next five years. Medrano agreed that he
“knowingly” received money benefits and medical benefits through his workers’
compensation claim. He also signed the “Texas Workers’ Compensation Work Status
Report” on August 21, 2018. Finally, Medrano testified that he applied for and
received all of his workers’ compensation benefits, that he never filed a request for
any hearings to dispute any of the benefits, and that he never contacted Kerry or the
insurance company to say that he did not want workers’ compensation benefits.
11 In his responses to requests for admission, Medrano admitted that he had
received temporary income benefits from Kerry’s workers’ compensation insurance
carrier for the weeks of August 18, 2018, through September 18, 2018, and that he
had received impairment income benefits from Kerry’s workers’ compensation
insurance carrier from November 2, 2018, through December 13, 2018. He also
admitted that his medical care was paid for by Kerry’s workers’ compensation
insurance carrier. Moreover, Medrano admitted that since October 12, 2018, he had
been “continually represented” by the same attorney and that this same attorney
represented him while he was receiving workers’ compensation benefits.
Medrano looks to a Texas Supreme Court case as a “foundational contrast” to
his case. See Medina v. Herrera, 927 S.W.2d 597, 603 (Tex. 1996). There, the supreme
court concluded that the employee, Medina, had made an informed election of a
workers’ compensation remedy. Id. The court first stated that while the “mere
receipt of compensation benefits does not automatically satisfy” the “informed”
election element of the workers’ compensation remedy, there were additional
circumstances establishing, as a matter of law, that Medina had made an informed
election. Id. Although Medina had submitted an affidavit stating that he did not
understand that he had a right to pursue a common law intentional tort claim, the
supreme court noted that it was “undisputed” that Medina was represented by an
attorney both in submitting his formal claim for compensation benefits and in
securing continued temporary income benefits at the contested case hearing. Id.
12 Medrano argues that the difference in Medina and his case is that his initial workers’
compensation claim was filed without counsel; according to Medrano, he did not have
legal representation until two months after he started receiving workers’
compensation benefits.
However, Medrano’s contention ignores the rest of the Medina opinion, where
the court noted that “[b]y the time Medina filed th[e] suit, he had been receiving
benefits for almost two years, the entire time represented by counsel.” Id. Therefore,
the court held, “Under these circumstances, Medina must, as a matter of law, be
charged with knowledge of his remedies.” Id. The court explained, “Because
Medina’s present claim . . . is fundamentally inconsistent with his earlier pursuit of
compensation benefits, and because Medina is charged with knowledge of the
ramifications of his actions, he made an informed choice of remedy as to [his
employer].” Id.
Similarly, by the time Medrano filed suit, he had been “knowingly” receiving
benefits both before and after he was represented by counsel. While his attorney did
not send a letter of representation until almost two months after the accident, the
attorney continuously represented Medrano while Medrano received impairment
income benefits and medical care as a result of Kerry’s workers’ compensation
insurance carrier. At no time did Medrano or his attorney file a request for hearings
to dispute any of the benefits or contact Kerry or the insurance company to say that
Medrano did not want workers’ compensation benefits. Similar to the claim in
13 Medina, Medrano’s present claim is “fundamentally inconsistent” with his earlier
pursuit of and receipt of workers’ compensation benefits. See id.
Likewise, Medrano’s reliance on Ramirez v. Pecan Deluxe Candy Co., 839 S.W.2d
101 (Tex. App.—Dallas 1992, writ denied) (op. on reh’g), is misplaced. In Ramirez,
the employee had applied for and received workers’ compensation benefits, but he
made the claim six days after sustaining injuries and while still in the hospital. Id.
at 103. In holding that Pecan Deluxe did not prove that Ramirez had made an
informed election of remedies, the court noted that the “summary judgment evidence
proved only that Ramirez applied for and received workers’ compensation benefits
for his injuries” and that there was “no summary judgment evidence showing that he
[had] made an informed election between workers’ compensation benefits and
recovery under an intentional tort cause of action.” Id. at 107.
Here, unlike the plaintiff in Ramirez, Medrano did not make a claim for
workers’ compensation benefits while he was still in the hospital. And while Medrano
was not represented by an attorney when he initially filed for workers’ compensation
benefits, this fact alone is not dispositive of whether he made an informed election of
remedies. See Boullt, 2004 WL 2357881, at *4 (holding that circumstances surrounding
the delayed application for workers’ compensation benefits showed an election of
remedies even when the applicant was not represented by an attorney); see also
Anderson v. U.S. Fire Ins. Co., No. 05-92-02811-CV, 1994 WL 74009, at *1–3 (Tex.
App.—Dallas Mar. 8, 1994, no pet.) (not designated for publication) (affirming
14 summary judgment that employee made a “voluntary, knowing, and intelligent
election of remedies” despite one of her complaints being that her employer had told
her that she should not retain an attorney). As set out above, there was additional
evidence that Medrano made an informed election to collect workers’ compensation
benefits. Cf. Reece v. Westport Tech. Ctr. Int’l, Inc., No. 14-96-00799-CV, 1998 WL
268844, at *5 (Tex. App.—Houston [14th Dist.] May 28, 1998, no pet.) (not
designated for publication) (holding that defendants met their summary judgment
burden that plaintiff made an informed choice of remedies by establishing that
plaintiff knew the cause of her injury, was aware of the harassment when she filed a
claim for benefits, and was represented by counsel at the time she sought
compensation benefits). Considering these additional circumstances, Medrano is
charged with knowledge of his remedies. See Medina, 927 S.W.2d at 603. We overrule
Medrano’s sole issue.
IV. CONCLUSION
Having overruled Medrano’s sole issue, we affirm the trial court’s order
granting summary judgment.
/s/ Dana Womack
Dana Womack Justice
Delivered: January 9, 2025