IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
AMERICAN INTERNATIONAL SPECIALTY LINES INSURANCE CO.,
RENTECH STEEL LLC; PRESTON TEEL; LESA CROSSWHITE;
Appeal from the United States District Court
for the Northern District of Texas (Abilene Division)
Before KING, BARKSDALE, and ELROD, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
This case addresses whether an insurance policy that excludes coverage
for an “obligation” incurred under “any workers’ compensation law” bars
coverage for a judgment that an employee recovers in a negligence action against
a Texas employer that does not subscribe to the Texas workers’ compensation
system. Because the Texas Workers’ Compensation Act (“TWCA”) imposes no
obligation on a nonsubscriber to compensate an employee for injuries sustained
due to the employer’s own negligence, we find that the exclusion is not
applicable. Accordingly, we AFFIRM the district court’s summary judgment in
favor of defendants-appellees.
United States Court of Appeals
F I L E D
September 21, 2010
Lyle W. Cayce
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Plaintiff-Appellant American International Specialty Lines Insurance Co.
(“AISLIC”) appeals from the district court’s summary judgment in favor of
defendants, holding that AISLIC’s umbrella insurance policy (“the AISLIC
policy”), issued to Rentech Boiler Systems, Inc., covered the negligence claims
that Preston Teel, Lesa Crosswhite, and Jennings Teel (“the Teels”) asserted
against Rentech Steel, L.L.C. in the underlying litigation and the resulting
judgment. Rentech Steel, Rentech Boiler Systems, Inc., and Renz Family
Partnership, Ltd. are entities under the control of or owned by a common
owner/entity. Rentech Steel, a nonsubscriber to the Texas workers’
compensation insurance system, maintained both a primary indemnity policy,
which is not implicated in this case, and the AISLIC Policy. Rentech Steel
shared the AISLIC Policy with Rentech Boiler Systems, a subscriber to the
workers’ compensation system, but they maintained separate primary policies
due to their differing statuses in relation to the workers’ compensation system.
The underlying litigation commenced when sixteen-year-old Preston Teel
sustained severe injuries while working at Rentech Steel’s manufacturing
facility in Abilene, Texas. Following the incident, the Teels sued Rentech Steel
in state court for gross negligence, negligence, and negligence per se. Lexington
Insurance Company, Rentech Steel’s primary insurer, initially defended Rentech
Steel in the litigation. But after Lexington Insurance denied further coverage,
AISLIC assumed Rentech Steel’s defense as the umbrella insurer. A few weeks
before trial was to begin, AISLIC sought a declaratory judgment that it had no
obligation to defend or indemnify Rentech Steel in the lawsuit. On the first day
of trial, Rentech Steel entered Chapter 7 bankruptcy. According to Rentech
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Steel, the bankruptcy was necessary because AISLIC would not pay for the suit.
The bankruptcy court, however, lifted the stay and permitted the case to proceed
to trial on the condition that any recovery would be limited to the proceeds of the
AISLIC insurance policy.
The jury found for the Teels on their negligence and negligence per se
claims, but it did not find gross negligence on the part of Rentech Steel. The
court then entered a judgment against Rentech Steel for $12,470,000 in actual
damages, which was reduced to $10,570,000 after applying a settlement credit.
Rentech Steel has appealed the judgment, and AISLIC has continued to defend
Rentech Steel under a reservation of rights during the appeal. As a consequence
of the state-court judgment, the Teels became proper claimants to Rentech
Steel’s insurance policy.
Shortly after the state court entered its judgment, AISLIC filed a
declaratory judgment action in federal court seeking to establish that it had no
duty to either defend Rentech Steel in the underlying state-court lawsuit or to
indemnify Rentech Steel for the judgment because the AISLIC policy’s “Various
Laws” exclusion excluded coverage for any “obligation of the Insured under . . .
any workers’ compensation, disability benefits, or unemployment compensation
law, or any similar law.” AISLIC moved for summary judgment, arguing that
a negligence claim filed against a nonsubscribing employer is an obligation
arising under the TWCA, not state common law, so the Teels’ judgment against
Rentech Steel was necessarily an “obligation” under Texas’s workers’
compensation law—an obligation explicitly excluded from coverage under the
“Various Laws” exclusion. The Teels and Rentech Steel opposed AISLIC’s
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The district court denied AISLIC’s summary-judgment motion, holding
that the judgment against Rentech Steel did not fall within the Policy’s “Various
Laws” exclusion. The order explained that, although the TWCA deprives
appellees of the right to assert a common-law negligence or negligence per se
claim against a subscribing employer, the Act imposed no “obligation” on a
nonsubscribing employer to compensate an employee for injuries resulting from
the employer’s negligence, but merely limited an employer’s defenses against an
employee’s common-law claims. Alternatively, the court held that, because the
“Various Laws” exclusion was ambiguous, Texas law required that the exclusion
be interpreted against AISLIC and in favor of coverage where appellees’
interpretation of the exclusion was reasonable.
Following the district court’s denial of AISLIC’s motion for summary
judgment, appellees filed for summary judgment on the ground that the AISLIC
policy’s “Various Laws” exclusion did not bar coverage of the judgment against
Rentech Steel, which the district court granted. This appeal followed.
We review a district court’s summary judgment de novo, applying the same
legal standards that the district court applied, viewing the evidence in the light
most favorable to the nonmoving party. Am. Int’l Specialty Lines Ins. Co. v.
Canal Indem. Co., 352 F.3d 254, 259–60 (5th Cir. 2003). We affirm “only if
there is no genuine issue of material fact and one party is entitled to prevail as
a matter of law.” Cedyco Corp. v. PetroQuest Energy, LLC, 497 F.3d 485, 488
(5th Cir. 2007) (citations omitted). Where, as here, parties have filed crossmotions
for summary judgment, each motion must be considered separately
because each movant bears the burden of showing that no genuine issue of
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material fact exists and that it is entitled to a judgment as a matter of law.
Shaw Constructors v. ICF Kaiser Engr’s, Inc., 395 F.3d 533, 538–39 (5th Cir.
At issue in this case is whether an employee’s negligence action against an
employer that does not subscribe to the Texas workers’ compensation system is
an “obligation” under the TWCA, such that it is excluded under the AISLIC
Policy’s “Various Laws” exclusion. The AISLIC Policy’s “Various Laws”
This insurance does not apply to any obligation of the Insured
under any of the following:
1. the Employee Retirement Income Security Act of 1974
(including amendments relating to the Consolidated
Omnibus Budget Reconciliation Act of 1985), or any
amendment or revision thereto, or any similar law; or
2. any workers’ compensation, disability benefits or
unemployment compensation law, or any similar law.
Because Texas law governs this claim, we employ the principles of Texas
contract construction in interpreting the “Various Laws” exclusion. Texas law
provides that insurance policies are construed according to common principles
governing the construction of contracts, and the interpretation of an insurance
policy is a question of law for a court to determine. New York Life Ins. Co. v.
Travelers Ins. Co., 92 F.3d 336, 338 (5th Cir. 1996). Limiting our inquiry to the
four corners of the underlying complaint and the four corners of the insurance
policy, we interpret the contract to discern the intention of the parties from the
language expressed in the policy. See Amerisure Ins. Co. v. Navigators Ins.
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Co., 611 F.3d 299, 309 (5th Cir. 2010). “No single provision taken alone will be
given controlling effect; rather, all the provisions must be considered with
reference to the whole instrument.” See Coker v. Coker, 650 S.W.2d 391, 393
(Tex. 1983) (citations omitted). Where, as here, the disputed provision is an
exclusion, the insurer bears the burden of establishing that the exclusion
applies. Guaranty Nat’l Ins. Co. v. Vic Mfg. Co., 143 F.3d 192, 193 (5th Cir.
Whether a contract is ambiguous is a question of law. Kelley-Coppedge,
Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 464 (Tex. 1998). An ambiguity does
not arise simply because the parties present conflicting interpretations; it “exists
only if the contractual language is susceptible to two or more reasonable
interpretations.” Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 157 (Tex.
2003) (citation omitted). “If policy language is worded so that it can be given a
definite or certain legal meaning, it is not ambiguous,” and the court construes
it as a matter of law without admitting evidence for the purpose of creating an
ambiguity. Id.; see Univ. C.I.T. Credit Corp. v. Daniel, 243 S.W.2d 154, 157 (Tex.
1951). But if the policy language is ambiguous, we construe it “strictly against
the insurer and liberally in favor of the insured,” Barnett v. Aetna Life Ins. Co.,
723 S.W.2d 663, 666 (Tex. 1987), and an “even more stringent construction is
required” where the ambiguity pertains to an “exception or limitation on [the
insured’s] liability under the policy,” Gulf Chem. & Metallurgical Corp. v.
Associated Metals & Minerals Corp., 1 F.3d 365, 369 (5th Cir. 1993).
Consequently, we must adopt the “construction of an exclusionary clause urged
by the insured as long as that construction is not itself unreasonable, even if the
construction urged by the insurer appears to be more reasonable or a more
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accurate reflection of the parties’ intent.” Glover v. Nat’l Ins. Underwriters, 545
S.W.2d 755, 761 (Tex. 1977).
Employing these principles, we find no ambiguity in the language of the
“Various Laws” exclusion. The exclusion plainly excludes from coverage only
those legal obligations imposed by “any workers’ compensation . . . law.” This
provision is straightforward. If Texas’s workers’ compensation law imposes a
duty upon Rentech Steel to compensate the Teels for the injuries Preston Teel
incurred due to Rentech Steel’s negligence, the exclusion applies and bars
coverage. Hence, the only question before the court concerns the proper
interpretation of Texas law: does the TWCA obligate a nonsubscribing employer
to compensate an employee for injuries sustained as a result of the employer’s
own negligence, or is such compensation a duty under Texas common law? 1
AISLIC and appellees disagree on two fundamental aspects of Texas law:
(1) whether an employee’s negligence claim against a nonsubscribing employer
arises under the TWCA or common law, and (2) if it arises under the TWCA,
whether the TWCA imposes an “obligation” upon a nonsubscriber to compensate
an employee for injuries caused by its own negligence. AISLIC contends that the
provision of the TWCA addressing negligence actions against nonsubscribers,
codified at section 406.033 of the Texas Labor Code, wholly supplanted the Texas
common-law claim with a statutory claim. According to AISLIC, because the
TWCA creates the cause of action under which the Teels sued Rentech Steel for
Although AISLIC challenges both its duties to indemnify and defend Rentech Steel, 1
which are separate duties creating separate causes of action under Texas law, see Amerisure,
611 F.3d at 309–10, the parties agree that the applicability of the “Various Laws” exclusion
is determinative of whether AISLIC owes both duties.
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negligence, the TWCA necessarily imposes an obligation on Rentech Steel to pay
the Teels’ judgment. AISLIC premises its theory on the fact that section 406.033
deprives nonsubscribing employers of certain defenses available at common law
and sets out an employee’s burden of proof in negligence cases. Tex. Labor Code
§ 406.033 (b), (c).
Appellees contend that AISLIC can prove neither that the TWCA creates
the cause of action for negligence against a nonsubscriber, nor that section
406.033 imposes any “obligation” on a nonsubscriber to pay a judgment to an
employee for injuries caused by negligence. According to appellees, rather than
displacing the common law, section 406.033 “simply leaves the common law
intact with one modification: as a carrot-and-stick incentive to participate in the
compensation program, the TWCA deprives nonsubscribers of some traditional
common-law defenses.” But regardless of what law creates the cause of action,
appellees argue that section 406.033 is devoid of any language creating an
“obligation” for nonsubscribing employers to compensate employees for accidents
resulting from negligence, so the exclusion does not apply.
Where, as here, the proper resolution of the case turns on the
interpretation of Texas law, we “are bound to apply [Texas] law as interpreted
by the state’s highest court.” Barfield v. Madison Cnty., Miss., 212 F.3d 269,
271–72 (5th Cir. 2000). Because the Texas Supreme Court has never ruled on
whether the Texas Workers’ Compensation Act “obligates” a nonsubscribing
employer to compensate an employee for injuries sustained due to employer
negligence, we must make an “Erie guess” as to how the Texas Supreme Court
would rule upon the issue based on
(1) decisions of the [Texas] Supreme Court in analogous cases, (2)
the rationales and analyses underlying [Texas] Supreme Court
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decisions on related issues, (3) dicta by the [Texas] Supreme Court,
(4) lower state court decisions, (5) the general rule on the question,
(6) the rulings of courts of other states to which [Texas] courts look
when formulating substantive law and (7) other available sources,
such as treatises and legal commentaries.
Hodges v. Mack Trucks, Inc., 474 F.3d 188, 199 (5th Cir. 2006) (quoting
Centennial Ins. Co. v. Ryder Truck Rental, Inc., 149 F.3d 378, 382 (5th Cir.
Turning first to the text of section 406.033, nothing in the text indicates
that the Texas Legislature intended to impose a legal “obligation” on a
nonsubscriber to compensate an injured employee. The statute simply specifies
that, “[i]n an action against an employer who does not have workers’
compensation insurance coverage to recover damages for personal injuries or
death sustained by an employee in the course and scope of employment,” the
defendant employer is deprived of certain defenses available at common law,
though other defenses remain available. § 406.033(a), (b). It also clarifies that
the common-law negligence standard continues to apply: “the plaintiff must
prove negligence of the employer or of an agent or servant of the employer acting
within the general scope of an agent’s or servant’s employment.” § 406.033(c).
Although we believe that this statute, on its face, does no more than
modify the defenses available at common law, and does not create a cause of
action that usurps the common-law cause of action, we “are emphatically not
permitted to do merely what we think best; we must do that which we think the
[Texas] Supreme Court would deem best.” Jackson v. Johns-Manville Sales
Corp., 781 F.2d 394, 397 (5th Cir. 1986) (en banc). Thus, we consider the
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relevant authorities to determine how the Texas Supreme Court would interpret
A. Texas Cases
In making our Erie guess, we look first to those Texas Supreme Court
cases that, while not deciding the issue, provide guidance as to how the Texas
Supreme Court would decide the question before us. Our preeminent Erie-guess
authorities, language and decisions from the Texas Supreme Court, suggest that
the court would find that a negligence claim against a nonsubscriber is a
common-law claim, and that section 406.033 imposes no “obligation” upon
Rentech Steel to pay the Teels’ judgment. The Texas Supreme Court in Kroger
Company v. Keng, 23 S.W.3d 347, 349 (Tex. 2009), indicated in dicta that a
negligence claim against a non-subscriber is modified by the TWCA, but remains
a claim at common law. In that case, the court addressed whether Chapter 33
of the Texas Civil Practice and Remedies Code required the district court to
submit a comparative-responsibility question to the jury in a negligence action
against a nonsubscriber, or alternatively, whether section 406.033 prevented the
jury from considering comparative responsibility. The Texas Supreme Court
explained in dicta that the TWCA
allow[s] injured workers, whose employers subscribed to workers’
compensation insurance, to recover without establishing the
employer’s fault and without regard to the employee’s negligence.
In exchange, the employees received a lower, but more certain,
recovery than would have been possible under the common law.
Employers were, however, allowed to opt out of the system, resulting
in their employees retaining their common-law rights. 2
The Texas Supreme Court went on to explain that the purpose of enacting section 2
406.033 was to discourage employers from choosing to opt out by depriving them of certain
traditional common-law defenses to an employee’s negligence action. Kroger, 23 S.W.3d at
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Id. at 349–50 (emphasis added). This suggests that the right to bring a claim
against a nonsubscriber for negligence remains what it has always been—a right
arising under common law.
AISLIC, however, argues that this case supports exactly the opposite
conclusion: that such a claim is an obligation arising under the TWCA because
the TWCA “governs” the negligence cause of action. AISLIC reads Kroger as
“unequivocally stat[ing] that the [TWCA] governs an employee’s personal-injury
claim against a nonsubscribing employer,” as the Texas Supreme Court there
Labor Code § 406.033, which is part of the Workers’ Compensation
Act, governs an employee’s personal-injury action against his or her
employer, when the employer is a nonsubscriber under the Act.
. . . .
In enacting section 406.033 and its predecessors, the
Legislature intended to delineate explicitly the structure of an
employee’s personal-injury action against his or her nonsubscribing
employer. Section 406.033(a) prescribes the defenses that are
unavailable to a nonsubscriber; section 406.033(c) dictates the
defenses that implicate the employee’s conduct and on which an
employer may rely; and section 406.033(d) provides the employee’s
burden of proof . . . .
23 S.W.3d 347, 349–51 (Tex. 2000). Thus, according to AISLIC, because the
TWCA governs an employee’s negligence claim against a nonsubscriber, it also
provides an obligation for the nonsubscriber to compensate the injured employee.
Not so. We agree that this language in Kroger indicates that a negligence
claim against a nonsubscriber must proceed within the parameters delineated
in section 406.033. But it does not follow that simply by virtue of governing the
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claim, the TWCA also “obligates” Rentech Steel to pay the Teels’ judgment.
Many common-law claims are “governed” by statutes of limitations, but those
statutes neither give rise to the cause of action they govern, nor do they obligate
any party to pay a judgment arising from a governed claim. See Texas Civ. Prac.
& Rem. Code § 16.003(a), (b) (providing a two-year statute of limitations for such
common-law claims as trespass, injury to the estate or property of another,
conversion of personal property, taking or detaining the personal property of
another, personal injury, and forcible entry and detainer); Porterfield v. Ethicon,
Inc., 183 F.3d 464, 467 (5th Cir. 1999) (citing section 16.003(a) for the premise
that “a two-year statute of limitations governs personal injury actions.”
(emphasis added)). Because it is clear that AISLIC’s chain of logical
assumptions is missing a key link, we must conclude that Kroger provides no
support for AISLIC’s theory.
Moreover, in Kroger, the Texas Supreme Court explicitly declined to adopt
the appellate court’s reasoning, favorable to AISLIC, that a suit against a
nonsubscriber is “‘an action to collect workers’ compensation benefits under the
workers compensation laws of this state.’” See Kroger, 23 S.W.3d at 352 (quoting
Texas Civ. Prac. & Rem. Code § 33.002(c)(1)). The court reserved that question
for another day, and instead affirmed the appellate court’s decision that no
comparative-responsibility jury instruction was required on the ground that no
such jury instruction was possible because section 406.033 precludes a finding
of comparative responsibility. Id. Thus, we do not read Kroger to suggest that
the TWCA imposes an obligation on Rentech Steel to compensate the Teels for
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Further, the Texas Supreme Court’s decision in Fairfield Insurance Co. v.
Stephens Martin Paving, L.P., demonstrates that, even where the TWCA sets
certain parameters on an employee’s claim against a nonsubscriber, it does not
necessarily transform the claim into an obligation under the TWCA. 246 S.W.3d
653, 659 (Tex. 2008). In Fairfield, the Texas Supreme Court held that the
standard-form employers’ liability policy—the same policy AISLIC issued to
Rentech Steel, containing the very same “Various Laws” exclusion—did not
exclude coverage for claims of gross negligence against nonsubscribers. See id.
This holding is significant because Texas Labor Code section 408.001(b), the
provision of the TWCA governing gross-negligence claims against
nonsubscribers, specifies the employee’s burden of proof in that action: the
employee must prove that the employee’s “death was caused by an intentional
act or omission of the employer or by the employer’s gross negligence.” Tex. 3
Lab. Code § 408.001(b). Fairfield thus belies AISLIC’s contention that section
406.033 subsumed the common law because it “specif[ies] the employee’s burden
of proof and the defenses available to the employer.” Where the TWCA provides
the employee’s burden of proof for both gross-negligence and negligence claims,
and the former are unquestionably covered by the insurance policy, the statute’s
provision of the employee’s burden of proof cannot provide the basis for a
contrary result here.
Though the decisions and dicta of the Texas Supreme Court weigh more
heavily in our Erie analysis, we also consider those decisions of Texas appellate
courts in determining how the Texas Supreme Court would rule on this issue.
Further, section 408.001 goes on to define “gross negligence” as “the meaning assigned 3
by Section 41.001, Civil Practices and Remedies Code.” Tex. Lab. Code § 408.001(c).
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AISLIC invites us to follow Robertson v. Home State County Mutual Insurance
Company, —S.W.3d—, 2010 WL 2813488 (Tex. App.—Ft. Worth, 2010, no pet.),
which held that the employee’s judgment for damages against his
nonsubscribing employer was an “obligation” under workers’ compensation law,
excluded from coverage by the “Various Laws” exclusion in his employer’s
liability policy. We decline this invitation, as Robertson is inconsistent with 4
both the relevant Texas Supreme Court caselaw and the plain reading of section
406.033. See Warfield v. Byron, 436 F.3d 551, 558 (5th Cir. 2006) (finding that,
where authorities were split, the Texas Supreme Court would adopt the view
that was most consistent with the “plain reading” of the statute).
We consider Robertson to be unpersuasive because it conflates “governs”
with “obligates,” and because it fails to account for the Texas Supreme Court’s
decision in Fairfield. See Robertson, 2010 WL 2813488, at *5. The Robertson
court grounded its holding that no coverage existed on the statute’s provision of
the plaintiff’s burden of proof, id. at *7. This conflicts, however, with Fairfield’s
holding that the standard employers’ liability policy covered claims for gross
negligence, though the TWCA sets the standard of proof for those claims as well,
See Fairfield, 246 S.W.3d at 657. We are convinced by the plain language of
section 406.033 and by Fairfield that the Texas Supreme Court would not follow
Robertson, so we do not defer to it. Mem’l Hermann Healthcare Sys., Inc., v.
Eurocopter Deutschland, GMBH, 524 F.3d 676, 678 (5th Cir. 2008) (explaining
that we need not defer to an intermediate state appellate court decision where
we are “convinced by other persuasive data that the highest court of the state
But see In re Autotainment Partners, 183 S.W.3d 532, 537 (Tex. App.—Houston [14th 4
Dist.] 2006, no pet.) (holding that a negligence claim against a nonsubscriber for workers’
compensation benefits does not arise under the TWCA).
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would decide otherwise.”); see also Warfield, 436 F.3d at 558 (holding that the
Texas Supreme Court would follow those decisions that were most consistent
with the “plain reading” of the statute).
B. Decisions From Other Courts
Although Texas cases provide greater guidance for our Erie analysis, we
may likewise “consider, among other sources, treatises, decisions from other
jurisdictions, and the ‘majority rule.’” SMI Owen Steel Co. v. Marsh USA, Inc.,
520 F.3d 432, 437 (5th Cir. 2008) (citation omitted); see also Amerisure Ins. Co.
v. Navigators Ins. Co., 611 F.3d 299, 311 (5th Cir. 2010). Here, we have the
benefit of a number of federal cases interpreting the TWCA, and we consider 5
these cases in determining whether the Texas Supreme Court would conclude
that section 406.033 imposes an obligation on Rentech Steel to pay the Teels’
We generally consider decisions from other states to the extent they are relevant, but 5
the decisions AISLIC submits are largely inapposite because, unlike most other states, Texas
grants employers the right to choose whether to participate in the workers’ compensation
system. In AISLIC’s cases, the courts considered how nonsubscribers were acting illegally
under state law, but Rentech Steel is not similarly situated. See Indian Harbor Ins. Co. v.
Williams, 998 So. 2d 677, 678–79 (Fla. Ct. App. 2009); Weger v. United Fire & Cas. Co., 796
P.2d 72, 74 (Colo. Ct. App. 1990); Hanover Ins. Co. v. Ramsey, 539 N.E.2d 537, 538 (Mass.
1989); Florida Ins. Guar. Ass’n v. Revoredo, 698 So. 2d 890, 892–93 (Fla. Ct. App. 1997);
Tri-State Constr., Inc. v. Columbia Cas. Co., 692 P.2d 899, 903 (Wash. App. 1984); cf. Liberty
Mut. Ins. Co. v. United Nat’l Ins. Co., 731 P.2d 167, 168–70 (Haw. 1987) (addressing a different
In states where employers are compelled to participate in the workers’ compensation
system, there is a stronger argument that employers who fail to participate in the mandatory
system are nevertheless “obligat[ed]” by law to compensate injured employees. See 21 Eric
Mills Holmes & Mark S. Rhodes, Holmes’ Appleman on Insurance 2d, § 132.5 (Lexis Nexis ed.
2002) (“The [policy] exclusion excludes ‘any obligation’ of the insured under a workers’
compensation, disability benefits, or unemployment compensation, or any similar law.
Including the word ‘obligation’ means that no coverage applies when (1) an insured has
statutory coverage and it applies to a loss or (2) an insured should have obtained the statutory
protection that applies to a loss.”).
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We begin this analysis by considering Middleton v. Texas P&L Co., a
Supreme Court decision examining the TWCA only a few years following its
1913 enactment. 249 U.S. 152 (1919). The TWCA withstood constitutional
challenge in the Texas Supreme Court in 1916, but with United States Supreme 6
Court review imminent, the Texas Legislature amended the Act while the appeal
was pending to allow workers to forego workers’ compensation remedies and
thereby retain their common-law rights of action. See Ferguson v. Hosp. Corp.
Int’l, 769 F.2d 268, 271 (5th Cir. 1985). In 1919, the Supreme Court affirmed
the Texas Supreme Court and held that the statute was constitutional.
Middleton, 249 U.S. at 155. In describing the Act, the Court explained that the
TWCA shielded employers from common-law suits, but “[e]mployers who do not
become subscribers are subject as before to suits for damages based on
negligence.” Id. (emphasis added). Negligence suits preceding the enactment of
the TWCA were unquestionably suits under common law. Therefore, the
Supreme Court’s statement leaves little doubt that it interpreted the TWCA as
not fundamentally changing the characterization of common-law negligence
claims against nonsubscribers.
We are also guided by those federal decisions that have considered the
question whether an action against a nonsubscriber arises under common law
or the TWCA. Rentech Steel argues that we should follow Pyle v. Beverly
Enters.-Tex., 826 F. Supp. 206, 209 (N.D. Tex. 1993), holding that negligence
Middleton v. Texas P. & L. Co., 185 S.W. 556, 561-62 (1916) (rejecting an employee’s 6
challenge that the statute’s requirement that he accept compensation under his employer’s
compensation policy in lieu of common-law damages constituted a deprivation of property
without due process in violation of the Fourteenth Amendment).
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claims against nonsubscribers exist independently of the TWCA. In that well- 7
reasoned opinion, Judge Fitzwater considered whether the plaintiff’s negligence
suit against her nonsubscribing employer arose under the TWCA, such that it
was not preempted by ERISA. The court held that they were not so preempted
because the plaintiff’s
state court petition does not seek recovery pursuant to the TWCA.
It clearly alleges common law claims of negligence, intentional
infliction of emotional distress and breach of duty of good faith and
fair dealing. These are not causes of action that are created by the
TWCA; they exist independently. Moreover, the fact that the TWCA
deprives employers of certain defenses to negligence claims does not
mean that claims by employees against nonsubscribing employers
are brought pursuant to the TWCA. See Eurine v. Wyatt Cafeterias,
Inc., 1991 WL 207468 at *2 (N.D. Tex. Aug. 21, 1991) (Sanders, C.J.)
(“A cause of action does not arise under workers’ compensation laws
merely because the workers’ compensation statute deprives the
defendant of certain defenses to the cause of action.”).
This approach, we believe, is consistent with the Texas Supreme Court’s
approach in Kroger v. Keng, 23 S.W.3d 347 (Tex. 2000), and with the history of
the TWCA, see Nunez, 771 F. Supp. at 167–68 (“When the Texas Legislature put
a workers’ compensation law into effect in 1917 it, for all practical purposes,
abolished the right of an employee to bring a common-law action against an
employer having workers’ compensation insurance coverage. However, the
Legislature preserved the common law right of action for the employees of an
See also Nunez v. Wyatt Cafeterias, Inc., 771 F. Supp.165, 167–68 (N.D. Tex. 1991) 7
(holding that by bringing a cause of action against his nonsubscribing employer, the plaintiff
had “but exercised his common law rights, as those rights have been enhanced by the workers’
compensation laws of Texas”).
Case: 08-11052 Document: 00511239102 Page: 17 Date Filed: 09/21/2010
employer who elected not to carry workers’ compensation insurance, and
enhanced those rights by a statutory provision that prevented an employer in
such an action from asserting defenses that theretofore had been available to
AISLIC, however, contends that we must consider those district-court
decisions holding that claims against nonsubscribers are not removable to
federal court under 28 U.S.C. § 1445(c), the federal statute addressing
“nonremovable actions,” because such claims “arise” under the TWCA. See
Figueroa v. Healthmark Partners, 125 F. Supp. 2d 209, 210 (S.D. Tex. 2000); see
also Smith v. Tubal-Cain Indus., Inc., 196 F. Supp. 2d 421, 423 (E.D. Tex. 2001);
Dean v. Tex. Steel Co., 837 F. Supp. 212, 214 (N.D. Tex. 1993). But see Eurine
v. Wyatt Cafeterias, Inc., No. 3-91-0408-H, 1991 WL 207468, at *2 (N.D. Tex.
Aug. 21, 1991) (unpublished) (holding that, for the purposes of section 1445(c),
a negligence action against a nonsubscriber is a common-law claim that does not
arise out of the TWCA). We find these cases to be of limited value because
section 1445(c) does not require the court to determine whether the TWCA
imposes an “obligation” on a nonsubscriber to pay a judgment to an employee
injured as a result of the employer’s negligence. It provides only that “a civil
action in any State court arising under the workmen’s compensation laws of such
state may not be removed to any district court of the United States.”
Further, even if we assume arguendo that a claim that “arises under” the
TWCA becomes an “obligation” under that law, the section 1445(c) cases
nevertheless remain an imperfect litmus test for how the Texas Supreme Court
would resolve the case before us. This is because of the deference courts afford
to the congressional intent behind the removal statute, which is not applicable
Case: 08-11052 Document: 00511239102 Page: 18 Date Filed: 09/21/2010
here. As the district court explained in Figueroa, “Section 1445(c) denotes an
effort by Congress to restrict the district courts’ diversity jurisdiction in order to
relieve the collectively overburdened docket of the federal courts. Courts have
therefore construed section 1445(c) broadly in order to further this purpose.”
Figueroa, 125 F. Supp 2d. at 211 (internal citations omitted). This broad
construction was also apparent in Smith, where the court found that a
negligence claim “aro[se] under” the TWCA simply because “[n]egligence actions
against nonsubscribing employers are expressly contemplated by Texas workers’
compensation law; indeed, several common-law defenses have been eliminated
by statute.” Smith, 196 F. Supp. 2d at 423 (citation omitted). We do not
comment on whether the TWCA’s mere “contemplat[ion]” of a cause of action
provides sufficient justification to deny removal under section 1445(c), but it is
no proof at all that the TWCA actually “obligate[s]” a nonsubscriber to
compensate an employee for negligence-induced injury.
Likewise, Illinois National Insurance Co. v. Hagendorf Construction Co.,
337 F. Supp. 2d 902 (W.D. Tex. 2004), is similarly unpersuasive. In that case,
the court held that a policy exclusion, similar to the one considered here,
excluded coverage for an employee’s negligence claim against a nonsubscriber
because the claim arose under the TWCA. See id. at 905. We are disinclined to 8
follow this decision for four reasons. First, though the Texas appellate court in
Kroger followed the reasoning that the federal district court would later apply
in Hagendorf, the Texas Supreme Court expressly declined to adopt that
reasoning, and decided the case on other grounds. Kroger v. Keng, 23 S.W.3d
The exclusion in Hagendorf excluded “[a]ny obligation for which the insured or the 8
insured’s insurer may be held liable under any workers compensation, disability benefits or
unemployment compensation law or any similar law.” Hagendorf, 337 F. Supp. 2d at 904.
Case: 08-11052 Document: 00511239102 Page: 19 Date Filed: 09/21/2010
347 (Tex. 2000). This inspires little confidence that the court would opt to follow
that decision in this instance. Second, Hagendorf’s holding is grounded on
Figueroa, Smith, and Dean—decisions that were decided using a broad
construction of the term “arising under,” a construction that we do not apply
here. Illinois Nat’l, 337 F. Supp. 2d at 905 (citing Figueroa,125 F. Supp. 2d 209;
Smith, 196 F. Supp. 2d 421; Dean, 837 F. Supp. 212). Third, just as in the
removal cases, Hagendorf held that the exclusion applied because the negligence
claims were “commenced pursuant” to the TWCA, but this reasoning does not
hold water. The text of the exclusion does not purport to exclude claims
“commenced pursuant” to any workers’ compensation law. The language
required the court to determine whether the TWCA actually imposed an
obligation on the nonsubscriber to compensate an employer for injuries caused
by negligence. The court did not do so.9
Finally, we find Hagendorf unreliable because the three decisions upon
which the court premised its holding—Figueroa, Smith, and Dean—derive their
respective holdings, at least in part, from a misreading of Foust v. City Insurance
Co, 704 F. Supp. 752 (W.D. Tex. 1989) (Gee, J., sitting by designation). These
courts interpreted Foust’s language—that employers “depart the general
common-law tort system” upon hiring workers regardless of whether they choose
to subscribe to the workers’ compensation system—as implying that the
common-law claims had been extinguished. Id. at 753; see also Figueroa, 125 F.
Supp. 2d at 211 (quoting Foust, 704 F. Supp. at 753); Smith, 196 F. Supp. 2d at
423 (same); Dean, 837 F. Supp. at 214 (same). This interpretation conflicts with
For these same reasons, we 9 are not persuaded by Markel Insurance Company, Inc. v.
Spirit of Texas Cheer & Gymnastics, No. 4:08-CV-758-Y, 2010 WL 3283051 (N.D. Tex. Aug. 19,
2010), which followed Hagendorf. See id. at *6.
Case: 08-11052 Document: 00511239102 Page: 20 Date Filed: 09/21/2010
Foust’s language just sentences later: depending on whether an employer
subscribed to the workers’ compensation system, the TWCA either “admitted
[the employer] to the worker’s compensation system or removed its defenses and
relegated it to Texas common law, shorn of [its] defenses.” Foust, 704 F. Supp.
at 753 (emphasis added). Accordingly, we hold that a negligence claim against
a nonsubscriber is not an “obligation” imposed by the TWCA.
Alternatively, assuming arguendo that the “Various Laws” exclusion is
ambiguous, summary judgment for appellees would still be proper if their
interpretation of the exclusion is reasonable. See Amerisure 10 Ins. Co. v.
Navigators Ins. Co., 611 F.3d 299, 309 (5th Cir. 2010) (explaining that we must
adopt the “interpretation of the exclusionary clause urged by the insured if it is
‘not itself unreasonable,’ even if the insurer’s interpretation seems ‘more
reasonable or a more accurate reflection of the parties’ intent.’” (citation
omitted)). The district court stated in its alternative holding that the phrase
“any obligation . . . under any workers’ compensation . . . law” could be
We reject AISLIC’s argument that the district court was prohibited from finding 10
ambiguity sua sponte, as we have previously held that “[t]he interpretation of the contract and
determination of ambiguity, however, is a matter of law, and the court ‘may conclude that a
contract is ambiguous even in the absence of such a pleading by either party.’” In re Newell
Indus., Inc., 336 F.3d 446, 449 n.5 (5th Cir. 2003) (quoting Sage St. Assocs. v. Northdale
Constr. Co., 863 S.W.2d 438, 445 (Tex. 1993)). As this court has observed, this scenario rarely
presents itself. Brooks, Tarlton, Gilbert, Douglas & Kressler v. U.S. Fire Ins. Co., 832 F.2d
1358, 1365 (5th Cir. 1987) (citations omitted) (“An allegation of ambiguity. . . is of pivotal
importance. Moreover, ‘[a]s necessity is the mother of invention, so is ambiguity the father of
multiple reasonable constructions, and where lawyers are involved, one never lacks an eager
parent of either gender.’ . . . It is interesting, therefore, that the allegation of ambiguity in this
case came, not from the parties, but from the district court.”).
Case: 08-11052 Document: 00511239102 Page: 21 Date Filed: 09/21/2010
interpreted to incorporate only workers’ compensation benefits, not a judgment
in a negligence suit. It explained that
the “Various Laws”exclusion could be interpreted as only excluding
claims already covered by workers’ compensation benefits rather
than excluding all claims of employees, whether filed to collect
workers’ compensation benefits or damages by common-law. In such
a case, there is more than one plausible interpretation of the
“Various Laws” exclusion. Thus, applying the provisions of the
“Various Laws” exclusion to the dispute before the Court produces
an uncertain or ambiguous result, and the exclusion will be
interpreted against AISLIC and in favor of coverage.
We agree with the district court that an “obligation” under “workers’
compensation law” could be interpreted to refer only to benefits paid by the
workers’ compensation system, as the meaning of the term obligation has “many,
wide, and varied meanings” that depends on the context in which the word is
used. See Black’s Law Dictionary (9th ed. 2009). Where negligence claims
against nonsubscribers, at least traditionally, have been recognized as arising
under common law, we conclude that it is reasonable to interpret the “Various
Laws” exclusion to exclude only mandatory benefit payments.
In summary, AISLIC has failed to meet its burden of proving that the
“Various Laws” exclusion bars coverage of the Teels’ claims and the judgment
against Rentech Steel. AISLIC has not shown that the Texas Supreme Court
would conclude either that a negligence claim against a nonsubscriber arises
under the TWCA rather than common law, or that Texas Labor Code section
406.033 imposes any obligation upon Rentech Steel to pay the Teels’ judgment.
For these reasons, we AFFIRM the judgment of the district court.
Case: 08-11052 Document: 00511239102 Page: 22 Date Filed: 09/21/2010
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