HOUSTON APPEALS COURT CONCLUDES CITY OF BELLAIRE NOT ENTITLED TO GOVERNMENTAL IMMUNITY IN WORKERS’ COMP CASE

The Texas Fourteenth Court of Appeals in Houston held Thursday that a municipality’s governmental immunity did not extend to a worker’s compensation case brought by an employee of a staffing services company who was injured while performing work for the city as a garbage collector.  In Johnson v. City of Bellaire, No. 14-10-00757-CV, 2011 WL 4841037 (Tex. App.—Houston [14th Dist.] Oct. 13, 2011), Mr. Johnson, an employee of Magnum Staffing Services, sued the city after he lost his arm as the result of an accident involving the garbage truck on which he was riding.  Mr. Johnson was paid by Magnum, but picked up his check from the city; the evidence did not establish whether Mr. Johnson was included in the city’s worker’s compensation coverage.  The city argued that Johnson could not maintain his suit because the legislature had not waived governmental immunity.  Johnson responded that the city’s worker’s compensation policy did not cover him because he was not a paid city employee, but the employee of a staffing company, and therefore the city could not invoke its immunity.

The court analyzed the appeal under the framework set out by the court’s 35-year-old Lyons opinion.  In that case, a Texas A&M employee sued the university for personal injuries suffered while on the job; the court held that the legislature “retained [governmental] immunity and provided an alternative remedy through  workmen’s  compensation.”   Johnson,  however,  was  not  clearly  covered  by  the  applicable worker’s compensation agreement.  Thus, he may have had no alternative remedy, and under the trial court’s ruling, would have had no remedy at all for the loss of his arm.  The Fourteenth Court concluded that a fact issue existed as to the city’s immunity, reversed the trial court’s ruling, and remanded for further proceedings.