The Lege versus The Supremes

Here's something you don't see every day - members of the Texas Legislature telling the State Supreme Court that they've been misinterpreted.

In an unusual move, four legislators have asked the Texas Supreme Court to reverse a recent decision that, critics say, gives refineries and other industrial plants a new shield against liability claims from contract workers injured on the job.

The ruling contradicted the law, said two Democrats -- Rep. Craig Eiland of Galveston and Sen. Rodney Ellis of Houston -- and two Republicans -- Sen. Jeff Wentworth of San Antonio and Rep. Bryan Hughes of Mineola -- in a brief filed with the all-Republican court.

"This Court, by disregarding the express terms of the Legislature's enactments, has violated the separation of powers clause of the Texas Constitution and impermissibly encroached on the powers and functions expressly reserved to the Legislature," the lawmakers argued.

The Texas AFL-CIO also is seeking a rehearing of the case, and the Texas Trial Lawyers Association is expected to file a similar plea.

Plaintiffs' attorneys and union officials have said the unanimous opinion, handed down Aug. 31, expands the ability of plant owners to seek liability protection from workplace accidents under the state's workers' compensation laws.

Had the decision been in effect before the BP refinery explosion in Texas City in 2005, contract workers might not have been able to sue the company for damages, they said.

In their brief, the lawmakers noted that the Workers Compensation Act provides immunity from liability to employers who have purchased workers compensation insurance for their direct employees.

But they said the court wrongly expanded that immunity.

"This Court's holding in this case improperly extends that immunity to non-employer premises (plant) owners," they added. "The Legislature has never authorized such an extension, never intended to provide such an extension, and, in fact, has repeatedly rejected such an extension."

The fact that this was a bipartisan complaint is almost as surprising to me as the fact of its existence. What I don't know is how likely the Supremes are to reconsider, let alone reverse, their decision. Regardless of that, I'd say the next step is for the Lege to revisit this statuts, and explicitly codify the immunity limits in language that even a State Supreme Court justice can understand. We'll see what happens. I should note that the AFL-CIO sent out an email with a bunch of stuff about this on Monday - click the More link to read it.

AFL-CIO email excerpt:

1) Central Labor Councils across Texas today joined the Texas AFL-CIO and our allies in calling for the Texas Supreme Court to rehear and reverse its decision in Entergy v. Summers.

In news conferences and localized press statements, the CLCs noted labor's support for a reversal of the decision, preferably in court but, if necessary, in the Legislature. The events highlighted growing opposition to the decision within the Texas Legislature.

In related activity, a bipartisan group of four Texas lawmakers filed a friend-of-the-court brief with the Texas Supreme Court in support of rehearing the decision. The lawmakers who join others in telling the high civil court that they know full well what the Legislature intended include Rep. Craig Eiland, D-Galveston, Rep. Bryan Hughes, R-Marshall, Sen. Rodney Ellis, D-Houston, and Sen. Jeff Wentworth, R-San Antonio.

Here is the news release used in the Austin event. It is similar to the material used in events in Galveston, Dallas and other locations.

A big thank-you to all the leadership of the Central Labor Councils who put together news events and delivered news releases on short notice to make a coordinated statement on International Human Rights Day:

Dec. 10, 2007

News Release
Contacts: Becky Moeller, (512)477-6195
Or Louis Malfaro, (512)472-1124

Opposition Builds to Anti-Worker Court Opinion
Entergy v. Summers Case Poses Danger for Texas Workers

The Texas Supreme Court's decision to override clear legislative intent and allow Texas companies to shut the courthouse door to injured workers is drawing more opposition starting at the court itself, where organized labor, civil rights and community organizations are asking the justices to reconsider.

The Texas AFL-CIO and other groups filed a brief supporting the motion for rehearing filed by the victim in the case that points up the threats to workplace safety and the major holes in the reasoning of the unanimous Entergy v. Summers opinion. Meanwhile, a growing group of legislators who oversee insurance and workers' compensation issues made it clear that they intended no such interpretation of the law.

Reflecting the fundamental importance of safety in the workplace, the Texas AFL-CIO and Austin Central Labor Council joined CLCs across the state today in making the case the central theme of Texas observances of International Human Rights Day.

In addition, a broad range of labor, civic and civil rights organizations added their voice to this issue by joining with the Texas AFL-CIO in petitioning the Court to reverse its decision. Among the organizations joining the Texas AFL-CIO and Austin CLC in opposing Entergy v. Summers are LULAC, the Labor Council for Latin American Advancement, the A. Philip Randolph Institute, the Coalition of Labor Union Women, the Asian Pacific American Labor Alliance, the Alliance for Retired Americans, United Steel Workers, International Brotherhood of Electrical Workers, Texas Watch and Texans for Public Justice.

"The Texas Supreme Court has gouged a giant hole in the legal protections for Texas workers by giving large business owners a technical loophole to escape the consequences of their own wrongdoing," Texas AFL-CIO President Becky Moeller said. "This decision deprives injured workers of key rights and basic protections while providing absolutely nothing in return. It is judicial activism at its worst. It is wrong, and we are going to fight it with everything we have."

Until the Texas Supreme Court waltzed into this issue, the Texas Legislature, even at the height of the "tort reform" craze, had declined to go this far in closing the courthouse doors to injured workers, despite repeated efforts by the anti-lawsuit lobby. The Entergy v. Summers decision effectively makes an end run around the Legislature by reaching back almost 15 years to an obscure piece of a non-substantive recodification of the Labor Code to justify its decision to change the law.

Sen. Kirk Watson, D-Austin, said the Entergy decision ignored clear legislative intent to maintain legal protections for workers who enter a work site that may be dangerous.

"The Court reached a result that the Legislature has rejected over and over again," Watson said. "The Legislature has avoided reducing and has, instead, worked to assure worker protections and also make sure employers keep a commitment to safety."

A partial list of other legislators who are criticizing the decision is attached.

Moeller noted that the Entergy v. Summers case has prompted legislative review already as part of the interim charges assigned by House Speaker Tom Craddick.

"But we believe the Texas Supreme Court should return the status quo and practice the opposition to 'judicial activism' that it preaches," Moeller said. "This is no time for those who wear judicial robes to take on the role of legislators, particularly when so many lives are at stake."

2) Texas AFL-CIO President Becky Moeller issued this statement on the Entergy case:

Statement by Becky Moeller
President, Texas AFL-CIO
Dec. 10, 2007

Good morning. We are here today to raise awareness of a Texas Supreme Court decision in Entergy v. Summers that threatens the safety of workers across Texas.

Central Labor Councils across Texas are issuing parallel news releases and holding other news conferences on this issue as labor's observes International Human Rights Day. The right to a safe workplace is one of the fundamental rights that this day commemorates. Because the Entergy case threatens workers everywhere in Texas, the Texas AFL-CIO has joined in the effort to seek a rehearing and reversal of the decision and will participate in interim legislative hearings called to discuss the case.

In the Entergy v. Summers case, the court used an obscure, 15-year-old non-substantive recodification of the Labor Code to find that any worker who sets foot on a property that is covered by a certain type of workers' compensation insurance is now barred from the courthouse when the owner of the premises negligently causes an injury. This is true under the ruling even though the worker is not an employee of the premises owner and the premises owner is not a general contractor.

So a plumber who is hired to fix a leak in a skyscraper, an electrician who fixes wiring in a corporate headquarters, a caterer called in to put on a party or, yes, a visiting laborer at a refinery that explodes, as happened in the deadly BP blast in 2005, can now be saddled with the limited benefits and restrictions of the workers' compensation system if injured on the job as long as the premises owner follows the blueprint for protection laid out by the Supreme Court in this opinion.

The Texas Supreme Court has gouged a giant hole in the legal protections for Texas workers by giving large business owners a technical loophole to escape the consequences of their own wrongdoing. This decision deprives injured workers of key rights and basic protections while providing absolutely nothing in return. It is judicial activism at its worst. It is wrong, and we are going to fight it with everything we have.

Until the Texas Supreme Court waltzed into this issue, the Texas Legislature, even at the height of the "tort reform" craze, had declined to go this far in closing the courthouse doors to injured workers, despite repeated efforts by the anti-lawsuit lobby. The Entergy v. Summers decision effectively makes an end run around the Legislature by reaching back almost 15 years to an obscure piece of a non-substantive re-codification of the Labor Code to justify its decision to change the law.

In one ill-considered opinion, the Supreme Court has changed decades of well-settled law. The Texas Legislature is acutely aware of the importance of this issue, having considered and consistently rejected the pressure of the "tort reform" lobby to pass legislation to accomplish this very result. The House Committees on Insurance and Business & Industry will be examining this opinion as part of their interim charge, and the list of legislators who say the Court overstepped its bounds in the Entergy case is significant and growing. Should this decision stand, we will certainly press for legislative action to restore balance to this area of the law.

But we believe the Texas Supreme Court should return the status quo and practice the opposition to 'judicial activism' that it preaches. This is no time for those who wear judicial robes to take on the role of legislators, particularly when so many lives are at stake.

3) A number of Texas Senate members have weighed in on the case:

Quotes from Lawmakers on Entergy v. Summers

Sen. Rodney Ellis, D-Houston:

"I believe the Texas Supreme Court ruling on Entergy v. Summers threatens the safety of all Texas workers. The Legislature has studied this issue numerous times and the majority agrees that the current law provides needed incentives for employers to keep workers safe and it provides them necessary legal protection."

Sen. Mario Gallegos, D-Houston:

"Whenever the legislature looked at this issue in the past, we've specifically declined to do what the Supreme Court has effectively done on their own. As much as many complain about 'activist judges,' it's clear in this case that they have vividly overstepped their boundaries on this decision. I would hope that legislators from both Parties will remedy this travesty of justice at our earliest opportunity. Meanwhile, I hope the court reconsiders this ill-advised decision which flies in the face of legislative intent, and threatens the health and safety of working Texans."

Sen. Eddie Lucio, D-Brownsville:

"Non-Substantive re-codifications of statutes are a constitutionally mandated duty* of the Legislature (and the Legislative Council) specifically meant to NOT change the intent of law. In the Entergy decision, the Texas Supreme Court has violated the separation of powers in this state using judicial activism to write law. One of the court's primary missions is to protect those that have no voice at the Legislature, instead they are usurping powers and writing law. Perhaps, worst of all, they are using these non-substantive changes to remove protections for Texas workers that the Legislature has specifically supported again and again over the years."

Sen. Carlos Uresti, D-San Antonio:

"The Legislature already has considered and rejected policies that would have reached a result similar to the Entergy decision. The people of this state, through their elected officials, have decided to protect Texas workers with legal remedies, while requiring employers to maintain a safe environment for their employees. Unfortunately, the court has ignored the will of the people with its ruling on the Entergy case."

Sen. Leticia Van de Putte, D-San Antonio:

"The grievous ruling by the Texas Supreme Court threatens the basic safety of our workers; and my colleagues and I have unfailingly rejected propositions, in line with this ruling. It is crucial that we address this action to ensure every employer maintains a commitment to the well-being of its employees."

Sen. Kirk Watson, D-Austin:

"The Court reached a result that the Legislature has rejected over and over again. The Legislature has avoided reducing and has, instead, worked to assure worker protections and also make sure employers keep a commitment to safety."

Sen. Royce West, D-Dallas:

"The Legislature has considered this issue several times and determined that the current law provided not only important legal protections for workers, but crucial incentives for every employer to maintain a high commitment to safety," West said. "The court has stepped outside its proper bounds with an Entergy case decision that directly contradicts the will of the Texas State Legislature."

Sen. Judith Zaffirini, D-Laredo:

"In my opinion, the Supreme Court overstepped its boundaries in their Entergy decision. Legislators considered this issue before and specifically declined to pass a bill that would have had the same results."

Also, Quorum Report last week spoke to two Republican lawmakers who raised serious questions about the ruling:

Rep. John Smithee, R-Amarillo:

The chairman of the House Insurance Committee told QR late last week that he was one of those lawmakers taken surprise by the Court's decision. And with the Entergy decision now listed as an interim charge for his committee, he'd like to take a look at how the Court treats recods [recodification laws] in its opinions.

"I think we see those revisions and don't read them closely because we think those things aren't substantive," said Rep. John Smithee (R-Amarillo), noting that a recod can sometimes be an inch or two thick. Many members of the House currently don't pay attention to recods because they are told the documents don't make substantive changes in the law. With the Court's treatment of a recod in Entergy, that could change, he said.

"It seems to be a first," said Smithee of the justices' use of a recod in the opinion.

Sen. Robert Duncan, R-Lubbock:

Sen. Robert Duncan (R-Lubbock) has also been critical of the ruling, saying that legislative intent on the matter is clear. Lawmakers have had multiple opportunities in the past to address extending workers' comp protections to premises owners but have opted not to.

4) The USW issued a national statement on the Entergy case, quoting Brother Mickey Breaux, who is the District Director for the geographical division that includes Texas:

News From USW: Texas Supreme Court Decision on Remedy for Injured Contract Workers Rewards Negligent Employers who Maintain Unsafe Workplaces

PITTSBURGH--(BUSINESS WIRE)--News From USW: The Texas Supreme Court's decision in Entergy v. Summers to limit contract workers to workers' compensation benefits when they are injured at a plant they are visiting puts the burden of recovery on the workers and protects corporate wrongdoers, says the United Steelworkers union (USW). The union urges a rehearing of the case.

"This decision rewards negligent employers who fail to maintain a safe workplace," said USW International Vice President Gary Beevers. "Without the ability to sue companies where they work when they get injured, the contractors end up shouldering the cost of their injuries and the employers avoid liability except for the cost of workers' compensation coverage.

"If Entergy v. Summers had been in effect when the BP explosion occurred at Texas City in March 2005, BP would have escaped at least $1.5 billion in liability and we would have never known the extent of the corporation's wrongdoing. It was only through the legal process that we were able to get access to documents that revealed the company's disregard for safety," Beevers said.

The Texas Supreme Court removed a major incentive for employers to maintain a safe workplace-the threat of litigation.

"This threat is the only way we can force companies to make dangerous workplaces safer," said USW International Vice President Tom Conway. "Regulation and enforcement is practically nonexistent under the Bush administration. OSHA did not perform a single comprehensive planned inspection at a single refinery in the entire country between 1995 and 2005.

"Without this threat, worker injuries and deaths become just a cost of doing business. BP managers made exactly this calculation when they figured the cost of providing a safe workplace versus the liability they might face for failing to do so," Conway added.

Texas statute mandates that the Court interpret the Labor Code to promote public over private interests. The Court's decision goes against this by benefiting large corporations.

Worker's compensation was never intended to compensate an injured worker fully and deals with compensation only and not prevention of an unsafe workplace. Benefits decrease dramatically regardless of the severity of the injury. Even though a worker may not be recovered or be able to fully recover, he or she is thrown out of the system when the benefits end. Workers' compensation also does not include non-economic damages like the pain and suffering of a worker burned severely on the job and the costs his or her family bear because of the injury.

"Workers' compensation is totally inadequate when it comes to refinery explosions," said USW District 13 Director Mickey Breaux. "We had an explosion on Feb. 23, 1999 at the Tosco refinery in California. The survivors of the three contract workers killed sued the company and were awarded $21 million in damages. One of the refinery employees jumped off the tower while ablaze from the blast and broke every bone in his body. He underwent at least 24 surgeries, numerous skin grafts and the amputation of his fingers and a thumb on one hand. He is confined to a wheelchair. His only remedy was workers' compensation and now that is gone.

"Whether you like it or not, the threat of litigation is often times the only way to get companies to make the necessary expenditures to have a safe workplace," Breaux added.

The USW is the largest industrial union in North America and represents over 850,000 workers, 30,000 of them in the oil and petrochemical sector alone.

Posted by Charles Kuffner on December 12, 2007 to Legal matters