Texas Supreme Court's Revised Decision: Entergy Gulf States, Inc. v. John Summers

The Texas Supreme Court has issued a revised decision in the Entergy Gulf States Inc. v. John Summers case.  In a 6-3 decision, the majority confirmed its previous holding.

The Supreme Court first issued its decision on August 31, 2007 holding a premises owner could be a general contractor and therefore enjoy the exclusive remedy provisions.  In essence, the decision created a “statutory employer.”

Justice Willett authored the original opinion.  Justice Green wrote the most recent decision with Justice O’Neil, Chief Justice Jefferson and Justice Medina dissenting.  However, the judgment remains the same.  The majority holds a premises owner can meet the definition of a general contractor if they provide workers’ compensation insurance to the employees of sub-contractors.  Therefore, workers’ compensation is the exclusive remedy for all employees who work on the project.

The court writes, “Entergy does the very thing the legislature has long tried to encourage; that is, Entergy becomes a subscriber by taking out a workers’ compensation policy for the entire site.  It would be an odd result, indeed, if this premises owner, acting as its own general contractor, and further acting in accordance with the state’s strong public policy interest of encouraging workers’ compensation insurance coverage for workers, was now to be excluded from the Act’s protections.”  The majority attaches no controlling significance to the Legislature’s failure to enact legislation.  The court also declined to consider lawmaker’s post hoc statements as to what the statute means. Individual legislator’s statements and explanations are not statutory history.

The dissent was apparently persuaded by testimony and amicus  briefs that the 1989 Act codification did not intend to make any substantive changes.  In a concurring opinion, Justice Willett writes separately raising the issue of statutory construction and more importantly to him, the judiciary’s  role.  Justice Willett reaffirms his belief the re-codification of the statute in 1989 and the changes in language contained therein, led to today’s result that a premises owner can be a general contractor.

Justice Hecht also filed a concurring opinion believing premises owners can be  general contractors since the inception of the Act.  Further, Justice Hecht believed the language was ambiguous but agreed with the court’s opinion  the Workers’ Compensation Act encourages coverage and the dissent’s opinion does not.

Amicus briefs and legislative testimony often invoke the Texas City explosion.  Many legislators, democrats and republicans alike, have expressed the opinion the Supreme Court has gone too far.  Two bills at the legislature will “fix” the Supreme Court’s decision.  However, it is unclear if the bills, even if passed by both houses, will be signed into law by the governor.