Tiakesha Lewis v. Family Dollar Inc.

Opinion

Opinion issued February 3, 2011   

In The

Court of Appeals

For The

First District of Texas

NO. 01-10-00472-CV

TIAKESHA LEWIS, Appellant

V.

FAMILY DOLLAR, INC., Appellee

On Appeal from the 333rd District Court

Harris County, Texas

Trial Court Cause No. 2009-35709

MEMORANDUM OPINION

Appellant, Tiakesha Lewis, challenges the trial court’s rendition of summary judgment in favor of appellee, Family Dollar, Inc., in Lewis’s suit against Family Dollar for negligence and gross negligence.  In three issues, Lewis contends that the trial court erred in granting Family Dollar summary judgment on that ground that that her injuries, which she sustained during an aggravated robbery at the Family Dollar store in which she worked, were covered by workers’ compensation insurance and she had received treatment for her injuries under workers’ compensation.   

We affirm.

Background

          In her petition, Lewis alleged that on June 7, 2008, while working as a clerk in a Family Dollar store, a person came into the store, violently shoved her, threatened her, and pointed a gun at her.  She asserted claims against Family Dollar for negligence and gross negligence.  In support of these claims, Lewis alleged that Family Dollar had failed to provide security and adequately staff the store.  She also alleged that Family Dollar had knowledge of prior similar incidents that occurred at the Family Dollar store.  Lewis claimed that she suffered mental anguish and sought actual damages of $250,000 and exemplary damages.  Family Dollar generally denied Lewis’s allegations.

          In its summary-judgment motion, Family Dollar argued that because Lewis had “accepted benefits pursuant to Family Dollar’s workers’ compensation insurance coverage,” she had waived her rights to assert her common law claims.  Family Dollar attached to its summary-judgment motion the affidavits of Kenneth Magee, Family Dollar’s store manager, and Rufus Todd, Family Dollar’s Regional Vice President.  In his affidavit, Magee testified that Family Dollar employed Lewis as a clerk, she was notified upon being hired by Family Dollar that Family Dollar is a workers’ compensation insurance subscriber, and she never notified Family Dollar of her intent to retain her common law rights and waive workers’ compensation coverage.  In his affidavit, Todd testified that Lewis was employed by Family Dollar on June 7, 2008 at the time of the robbery, Family Dollar maintained a workers’ compensation insurance policy, and Lewis received counseling services pursuant to Family Dollar’s workers’ compensation insurance policy.

          In her response, Lewis asserted that she had “retained her common law rights and her discussions with representatives of [Family Dollar] were not an acceptance of workers’ compensation benefits.”  Lewis attached to her response her affidavit, in which she testified that she was an employee of Family Dollar, Family Dollar “was grossly negligent towards [her],” and she “did not subscribe to [her] employer’s workers compensation plan.”  In a reply, Family Dollar objected to Lewis’s affidavit, asserting that the affidavit testimony was conclusory and she had failed to provide competent evidence.

          The trial court granted Family Dollar’s summary-judgment motion, ordering that Lewis take nothing on her claims against Family Dollar.

Standard of Review

To prevail on a summary-judgment motion, a movant has the burden of proving that it is entitled to judgment as a matter of law and that there is no genuine issue of material fact. Tex. R. Civ. P. 166a(c); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995).  When a defendant moves for summary judgment, it must either (1) disprove at least one essential element of the plaintiff’s cause of action or (2) plead and conclusively establish each essential element of its affirmative defense, thereby defeating the plaintiff’s cause of action.  Cathey, 900 S.W.2d at 341; Yazdchi v. Bank One, Tex., N.A., 177 S.W.3d 399, 404 (Tex. App.—Houston [1st Dist.] 2005, pet. denied).  When deciding whether there is a disputed, material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true.  Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985).  Every reasonable inference must be indulged in favor of the non-movant and any doubts must be resolved in her favor.  Id. at 549.

Summary Judgment

          In three issues, Lewis argues that the trial court erred in granting Family Dollar’s summary-judgment motion because there are fact issues concerning whether she was covered by and received treatment under workers’ compensation insurance.  Lewis does not dispute Family Dollar’s assertion that her claims would be barred if, in fact, Family Dollar was a worker’ compensation insurance subscriber and she was a covered employee.  Family Dollar asserts that the summary judgment record establishes that Lewis was covered under its workers’ compensation insurance and Lewis’s affidavit testimony was conclusory.  It also asserts that Lewis did not present any evidence to support her allegation that she was not covered under its workers’ compensation insurance, and Family Dollar notes that Lewis failed to testify to any specific facts suggesting that she ever provided it with written notification waiving coverage and retaining her common law and statutory rights.

          Under the Texas Workers’ Compensation Act (the “Act”), “[r]ecovery of workers compensation benefits is the exclusive remedy of an employee covered by workers’ compensation insurance. . . against the employer or an agent or employee of the employer for the death of or a work-related injury sustained by the employee.”  Tex. Lab. Code Ann. § 408.001(a) (Vernon 2006).  Generally, unless the employee gives the statutorily required notice, “an employee of an employer waives the employee’s 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) (Vernon 2006).  “An employee who desires to retain the common-law right of action to recover damages for personal injuries or death shall notify the employer in writing that the employee waives coverage under this subtitle and retains all rights of action under common law.”  Id. § 406.034(b). Such notice must be provided not later than the fifth day after the date on which the employee:

(1)     begins the employment; or

(2)     receives written notice from the employer that the employer has obtained workers’ compensation insurance coverage if the employer is not a covered employer at the time of the employment but later obtains the coverage.

Id.

          Here, Family Dollar provided summary-judgment evidence that it employed Lewis as a clerk at the time of the robbery, it notified Lewis that it was a subscriber under the Act, it maintained a workers’ compensation insurance policy in accordance with the Act, Lewis never notified it of her intent to retain her common law rights and waive coverage under the Act, and, pursuant to the Act and Family Dollar’s workers’ compensation insurance policy, Lewis had received counseling services on two occasions in June 2008. 

In the summary-judgment proceedings, Lewis agreed that she was a Family Dollar employee and it was a workers’ compensation subscriber at the time of the robbery.  She did not contradict Family Dollar’s evidence that it had notified her that it was a workers’ compensation subscriber or that she had, in fact, received counseling services under the workers’ compensation policy. 

On appeal, Lewis makes factual allegations that are substantially more specific than those that she offered to the trial court.  These allegations are also wholly unsupported by the record.  For example, in her appellate briefing, Lewis states that “she was not told at the time she was hired” that Family Dollar was a workers’ compensation subscriber, she denies having ever seen any workers’ compensation notices or “hearing anything about insurance,” she denies having been “treated” under workers’ compensation insurance, and she claims that she was “coerced” into signing certain documents before she was hired by Family Dollar.[1]  No record support exists for these factual allegations.  Instead, Lewis testified only that she “did not subscribe to [her] employer’s workers’ compensation plan.”  She did not provide any explanation for her allegation that she was not a “subscrib[er]” to workers’ compensation.

Affidavits supporting and opposing summary judgment must be made on personal knowledge, must set forth such facts as would be admissible in evidence, and must affirmatively show that the affiant is competent to testify to the matters stated therein.  Tex. R. Civ. P. 166a(f); Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996) (per curiam). Conclusory statements in an affidavit are not proper summary judgment evidence. See Tex. R. Civ. P. 166a(f) (supporting affidavit must set forth such facts as would be admissible in evidence); see also Ryland Group, Inc., 924 S.W.2d at 122.  A conclusory statement is one that does not provide the underlying facts to support the conclusion.  1001 McKinney Ltd. v. Credit Suisse First Boston Mort. Capital, 192 S.W.3d 20, 27 (Tex. App.—Houston [14th Dist.] 2005, pet. denied).  Conclusory statements in an affidavit that are unsupported by facts are insufficient to defeat summary judgment.  CA Partners v. Spears, 274 S.W.3d 51, 63 (Tex. App.—Houston [14th Dist.] 2008, pet. denied).  To serve as competent summary judgment proof under rule 166a(c), an affidavit of an interested party must be “clear, positive, direct, credible, free from contradiction, and susceptible of being readily controverted.”  Haynes v. City of Beaumont, 35 S.W.3d 166, 178 (Tex. App.—Texarkana 2000, no pet.); see Trico Techs. Corp. v. Montiel, 949 S.W.2d 308, 310 (Tex. 1997).  An affidavit that makes self-serving, conclusory statements without any underlying factual detail cannot support a summary judgment.  Haynes, 35 S.W.3d at 178.

Family Dollar established, through summary judgment evidence, that it was a workers’ compensation subscriber and Lewis, as its employee, was covered by and received benefits under its workers’ compensation policy.  Lewis did not contradict this evidence in the trial court.  Thus, Family Dollar further established that, under controlling law, Lewis’s exclusive remedy was available through her benefits under workers’ compensation.  We conclude that Lewis’s affidavit, in which she stated that she was not a “subscrib[er],” without providing any explanation as to how or why she believed she should not be covered by the applicable workers’ compensation policy, was conclusory and, thus, no evidence.   Thus, Lewis failed to raise a fact issue precluding the applicability of the exclusive remedy provision of the Act.  See Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984) (holding that conclusory affidavit was insufficient to create fact issue and defeat summary judgment).   Accordingly, we hold that the trial court did not err in granting summary judgment in favor of Family Dollar.

We overrule Lewis’s three issues.

Conclusion

          We affirm the judgment of the trial court.

Terry Jennings

Justice

Panel consists of Justices Jennings, Alcala, and Sharp.

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[1]           Presumably, with this statement, Lewis acknowledges that she may have signed documents concerning workers’ compensation, but she also states she did not read any such documents.  She further asserts that even if she had knowledge that Family Dollar was a workers’ compensation subscriber, she would not have waived workers’ compensation coverage “for fear of losing her job.”