IN THE SUPREME COURT OF TEXAS 444444444444 NO . 08-0751 444444444444
TEXAS MUTUAL INSURANCE COMPANY, PETITIONER, v.
TIMOTHY J. RUTTIGER, RESPONDENT
4444444444444444444444444444444444444444444444444444 ON PETITION FOR REVIEW FROM THE COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS 4444444444444444444444444444444444444444444444444444
JUSTICE WILLETT , concurring.
I join the Court’s opinion but write separately on Part V to emphasize this overlooked truism:
It is principally the judiciary’s role to define and delimit common-law causes of action. In our
constitutional design, the judicial branch is a partner, but not a junior partner1—and shaping Texas
common law is fundamentally a judicial prerogative.
* * *
Today the Court overrules Aranda v. Insurance Co. of North America2 and holds a common-
law action for bad faith is no longer warranted in the workers’ compensation context. I agree. The
dissent avers the proper inquiry is whether the Legislature intended to abrogate extra-statutory
Aranda claims when it amended the Workers’ Compensation Act in 1989. Respectfully, this focus
1 In re Allcat Claims Serv., L.P., 356 S.W .3d 455, 475 (Tex. 2011) (W illett, J., concurring in part and dissenting in part).
2 748 S.W .2d 210 (Tex. 1988). on legislative action is misplaced, at least in this case. To be sure, the Legislature has some power
to override or otherwise limit common-law remedies.3 However, this is a high hurdle, one clearly
uncleared here.4 As such, the search for some legislative suggestion on whether Aranda should
survive—an inquiry both the majority and the dissent eventually entertain—is at best fruitless, and
at worst, dangerously speculative.5 The more proper inquiry, respectfully, is whether the Court
believes Aranda still has a place, not whether the Legislature believes so.
Statutory abrogation is not the sole way to re-think a common-law cause of action. In
determining the continued vitality of the bad-faith remedy in workers’ compensation cases, I would
pivot on something simpler: this Court’s nonpareil role as arbiter of the common law. It is the duty
of the judicial branch to declare what the common law is: “The law is not static; and the courts,
whenever reason and equity demand, have been the primary instruments for changing the common
law through a continual re-evaluation of common law concepts in light of current conditions.”6 This
charge is indeed an ongoing one: “[T]he common law is not frozen or stagnant, but evolving, and
3 See Middleton v. Tex. Power & Light Co., 185 S.W . 556, 560–61 (Tex. 1916).
4 See Cash Am. Int’l Inc. v. Bennett, 35 S.W .3d 12, 16 (Tex. 2000).
5 The separate writings here demonstrate— again— the perils of consulting legislative history. The Court criticizes the dissent for relying on changes made to a bill during the legislative process, calling it “illogical speculation.” Ante at __. But one sentence later, the Court posits an alternate explanation for the same legislative history, declaring it “[m]ore logical speculation.” Id. Though the Court rightly dismisses both arguments as inappropriate, this is yet another reminder that legislative history, often turbid and thus prone to contrivance, serves as an ever-present judicial mercenary, embraced when helpful and ignored when not. As Justice Robert Jackson wryly observed, “It is a poor cause that cannot find some plausible support in legislative history.” Robert H. Jackson, Problems of Statutory Interpretation, 8 F.R.D. 121, 125 (1948); see also Exxon Mobil Corp. v. Allapattah Servs., 545 U.S. 546, 568 (2005) (repeating Judge Leventhal’s memorable phrase that rummaging around in legislative minutiae resembles “looking over a crowd and picking out your friends” (internal citations omitted)).
6 Whittlesey v. Miller, 572 S.W .2d 665, 668 (Tex. 1978).
2 it is the duty of this [C]ourt to recognize that evolution.”7 Accordingly, we are called upon to re-
evaluate common-law rules, giving deference to stare decisis when warranted, but departing when
the prior rule no longer furthers the interests of efficiency, fairness, and legitimacy.8 As we noted
142 years ago, “When the reason of the rule fails, the rule itself should cease. Cessante ratione legis,
cessat ipsa lex.”9
This axiom is sufficient to resolve today’s case because, as the Court so ably details, the
“reason” behind Aranda is no more. When we extended the duty of good faith and fair dealing to
workers’ compensation carriers in Aranda, we did so because of the “special trust relationship”
between a carrier and an employee.10 This relationship does not exist in every contractual agreement,
but we recognized it in the workers’ compensation context because of employees’ particular
vulnerability. Under the pre-1989 comp system, there was a tremendous disparity of bargaining
power, leaving employees with little to no recourse against arbitrary payment decisions.11 Concerned
with such inadequacies, we allowed a common-law remedy for bad faith to fill the gap.
A year later, the gap was made less gaping. Observers may dispute whether the Legislature’s
1989 overhaul eliminated the bargaining disparity between carriers and employees, but it is
indisputable that the top-to-bottom reforms enacted then (and since) have lessened the concerns that
7 El Chico Corp. v. Poole, 732 S.W .2d 306, 310 (Tex. 1987).
8 See Sw. Bell Tel. Co. v. Mitchell, 276 S.W .3d 443, 447 (Tex. 2008).
9 Wright’s Adm’x v. Donnell, 34 Tex. 291, 306 (1870).
10 Aranda, 748 S.W .2d at 212.
11 Id. at 212–13.
3 animated Aranda. By providing a strict dispute resolution timeline, a mechanism for interlocutory
benefits, penalties for myriad carrier misdeeds, assistance for injured workers, and a litany of other
protections throughout the Labor and Insurance Codes, the Legislature has endeavored to occupy the
realm of claims handling and reduce the inequities that drove us to announce a common-law duty.
My review today of the Legislature’s pervasive workers’ comp regime convinces me that (1)
Aranda’s concerns with carrier misbehavior have been addressed, and therefore (2) Aranda’s
cumulative extra-statutory remedy should now recede.
Otherwise, there is a very real possibility that the continued existence of bad-faith claims will
subvert the Legislature’s meticulous soup-to-nuts system, one augmented by an immense regulatory
and adjudicatory framework that, taken together, now regulates virtually every aspect of how a
carrier handles a workers’ comp matter. In the past, this Court has been hesitant to extend common-
law causes of action into fields where a pervasive regulatory scheme controls, specifically because
of this potential for interference.12 We should exercise similar deference when considering whether
to draw back an extra-statutory remedy in light of legislative changes.
The Legislature’s radical 1989 restructuring certainly made room for our 1988 Aranda
decision, but that to me suggests not affirmation but accommodation. In any case, whether
lawmakers acknowledged Aranda out of politeness (the Supreme Court says bad-faith claims must
12 See Waffle House, Inc. v. Williams, 313 S.W .3d 796, 804 (Tex. 2010) (noting that an extra-statutory negligence claim would “collide with the elaborately crafted statutory scheme” covering workplace harassment); City of Midland v. O’Bryant, 18 S.W .3d 209, 216 (Tex.
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IN THE SUPREME COURT OF TEXAS 444444444444 NO . 08-0751 444444444444
TEXAS MUTUAL INSURANCE COMPANY, PETITIONER, v.
TIMOTHY J. RUTTIGER, RESPONDENT
4444444444444444444444444444444444444444444444444444 ON PETITION FOR REVIEW FROM THE COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS 4444444444444444444444444444444444444444444444444444
JUSTICE WILLETT , concurring.
I join the Court’s opinion but write separately on Part V to emphasize this overlooked truism:
It is principally the judiciary’s role to define and delimit common-law causes of action. In our
constitutional design, the judicial branch is a partner, but not a junior partner1—and shaping Texas
common law is fundamentally a judicial prerogative.
* * *
Today the Court overrules Aranda v. Insurance Co. of North America2 and holds a common-
law action for bad faith is no longer warranted in the workers’ compensation context. I agree. The
dissent avers the proper inquiry is whether the Legislature intended to abrogate extra-statutory
Aranda claims when it amended the Workers’ Compensation Act in 1989. Respectfully, this focus
1 In re Allcat Claims Serv., L.P., 356 S.W .3d 455, 475 (Tex. 2011) (W illett, J., concurring in part and dissenting in part).
2 748 S.W .2d 210 (Tex. 1988). on legislative action is misplaced, at least in this case. To be sure, the Legislature has some power
to override or otherwise limit common-law remedies.3 However, this is a high hurdle, one clearly
uncleared here.4 As such, the search for some legislative suggestion on whether Aranda should
survive—an inquiry both the majority and the dissent eventually entertain—is at best fruitless, and
at worst, dangerously speculative.5 The more proper inquiry, respectfully, is whether the Court
believes Aranda still has a place, not whether the Legislature believes so.
Statutory abrogation is not the sole way to re-think a common-law cause of action. In
determining the continued vitality of the bad-faith remedy in workers’ compensation cases, I would
pivot on something simpler: this Court’s nonpareil role as arbiter of the common law. It is the duty
of the judicial branch to declare what the common law is: “The law is not static; and the courts,
whenever reason and equity demand, have been the primary instruments for changing the common
law through a continual re-evaluation of common law concepts in light of current conditions.”6 This
charge is indeed an ongoing one: “[T]he common law is not frozen or stagnant, but evolving, and
3 See Middleton v. Tex. Power & Light Co., 185 S.W . 556, 560–61 (Tex. 1916).
4 See Cash Am. Int’l Inc. v. Bennett, 35 S.W .3d 12, 16 (Tex. 2000).
5 The separate writings here demonstrate— again— the perils of consulting legislative history. The Court criticizes the dissent for relying on changes made to a bill during the legislative process, calling it “illogical speculation.” Ante at __. But one sentence later, the Court posits an alternate explanation for the same legislative history, declaring it “[m]ore logical speculation.” Id. Though the Court rightly dismisses both arguments as inappropriate, this is yet another reminder that legislative history, often turbid and thus prone to contrivance, serves as an ever-present judicial mercenary, embraced when helpful and ignored when not. As Justice Robert Jackson wryly observed, “It is a poor cause that cannot find some plausible support in legislative history.” Robert H. Jackson, Problems of Statutory Interpretation, 8 F.R.D. 121, 125 (1948); see also Exxon Mobil Corp. v. Allapattah Servs., 545 U.S. 546, 568 (2005) (repeating Judge Leventhal’s memorable phrase that rummaging around in legislative minutiae resembles “looking over a crowd and picking out your friends” (internal citations omitted)).
6 Whittlesey v. Miller, 572 S.W .2d 665, 668 (Tex. 1978).
2 it is the duty of this [C]ourt to recognize that evolution.”7 Accordingly, we are called upon to re-
evaluate common-law rules, giving deference to stare decisis when warranted, but departing when
the prior rule no longer furthers the interests of efficiency, fairness, and legitimacy.8 As we noted
142 years ago, “When the reason of the rule fails, the rule itself should cease. Cessante ratione legis,
cessat ipsa lex.”9
This axiom is sufficient to resolve today’s case because, as the Court so ably details, the
“reason” behind Aranda is no more. When we extended the duty of good faith and fair dealing to
workers’ compensation carriers in Aranda, we did so because of the “special trust relationship”
between a carrier and an employee.10 This relationship does not exist in every contractual agreement,
but we recognized it in the workers’ compensation context because of employees’ particular
vulnerability. Under the pre-1989 comp system, there was a tremendous disparity of bargaining
power, leaving employees with little to no recourse against arbitrary payment decisions.11 Concerned
with such inadequacies, we allowed a common-law remedy for bad faith to fill the gap.
A year later, the gap was made less gaping. Observers may dispute whether the Legislature’s
1989 overhaul eliminated the bargaining disparity between carriers and employees, but it is
indisputable that the top-to-bottom reforms enacted then (and since) have lessened the concerns that
7 El Chico Corp. v. Poole, 732 S.W .2d 306, 310 (Tex. 1987).
8 See Sw. Bell Tel. Co. v. Mitchell, 276 S.W .3d 443, 447 (Tex. 2008).
9 Wright’s Adm’x v. Donnell, 34 Tex. 291, 306 (1870).
10 Aranda, 748 S.W .2d at 212.
11 Id. at 212–13.
3 animated Aranda. By providing a strict dispute resolution timeline, a mechanism for interlocutory
benefits, penalties for myriad carrier misdeeds, assistance for injured workers, and a litany of other
protections throughout the Labor and Insurance Codes, the Legislature has endeavored to occupy the
realm of claims handling and reduce the inequities that drove us to announce a common-law duty.
My review today of the Legislature’s pervasive workers’ comp regime convinces me that (1)
Aranda’s concerns with carrier misbehavior have been addressed, and therefore (2) Aranda’s
cumulative extra-statutory remedy should now recede.
Otherwise, there is a very real possibility that the continued existence of bad-faith claims will
subvert the Legislature’s meticulous soup-to-nuts system, one augmented by an immense regulatory
and adjudicatory framework that, taken together, now regulates virtually every aspect of how a
carrier handles a workers’ comp matter. In the past, this Court has been hesitant to extend common-
law causes of action into fields where a pervasive regulatory scheme controls, specifically because
of this potential for interference.12 We should exercise similar deference when considering whether
to draw back an extra-statutory remedy in light of legislative changes.
The Legislature’s radical 1989 restructuring certainly made room for our 1988 Aranda
decision, but that to me suggests not affirmation but accommodation. In any case, whether
lawmakers acknowledged Aranda out of politeness (the Supreme Court says bad-faith claims must
12 See Waffle House, Inc. v. Williams, 313 S.W .3d 796, 804 (Tex. 2010) (noting that an extra-statutory negligence claim would “collide with the elaborately crafted statutory scheme” covering workplace harassment); City of Midland v. O’Bryant, 18 S.W .3d 209, 216 (Tex. 2000) (declining to impose a duty of good faith and fair dealing on the employment relationship because that “would tend to subvert those [statutes regulating the employment relationship] by allowing employees to make an end-run around the procedural requirements and specific remedies the existing statutes establish”).
4 exist) or deliberateness (the Legislature agrees such claims must exist), it is our decision whether
the bad-faith remedy retains any role as a leveler or equalizer within a pervasive statutory scheme
that controls claims handling in minute detail and bears little resemblance to the inequitable pre-
Aranda landscape.
Our 2010 Waffle House decision is instructive. There, we considered whether the plaintiff
could bring a common-law negligence claim against her employer in light of the TCHRA’s “unique
set of substantive rules and procedures” governing sexual harassment.13 We answered that she could
not after determining that the differences between the two causes of action—in procedure, and
standards, and remedies—were “manifold.”14 Because of those differences, we rejected the
common-law claim for fear of circumventing the “meticulous legislative design.”15 We could apply
the same analysis here because the inherently fuzzy nature of the bad-faith tort has a tendency to
produce conflicting liability standards inconsistent with the Legislature’s statutory approach to
carrier malfeasance and accountability.16 I think it unwise to invite these potential complications,
particularly in an area so imbued with public policy trade-offs, and where the Legislature has
specifically addressed our concerns over how comp claims are processed.
13 See Waffle House, 313 S.W .3d at 803–04.
14 Id. at 805–07.
15 Id. at 805.
16 See Universal Life Ins. Co. v. Giles, 950 S.W .2d 48, 62–65 (Tex. 1997) (Hecht, J., concurring) (observing that bad-faith actions are often seen as “the judicial equivalent of the W heel of Fortune” because the jury determines the facts and the standards to be applied on an ad hoc basis); see also Waffle House, 313 S.W .3d at 804 (noting that the workers’ compensation scheme incorporates a legislative attempt to balance the various interests and concerns of employees and employers).
5 * * *
Aranda was rooted in specific claims-handling inequities in the pre-1989 comp system,
inequities the Legislature has re-balanced. Accordingly, in light of the Legislature’s hermetic
workers’ compensation regime, the time has come for the Court—exercising its authority to define
and delimit common-law remedies—to overrule Aranda, a judicial gap-filler whose underlying
rationale no longer exists.
_______________________________________ Don R. Willett Justice
OPINION DELIVERED: June 22, 2012