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United States Court of Appeals,
Fifth Circuit.
No. 95-50207
Summary Calendar.
Melvin GENTRY, Individually and as Personal Representative of the
Estate of Michael Lee Gentry, Deceased; Betty Gentry, Plaintiffs,
and
Catherine Johnson, as Natural Guardian of the Person of and Legal
Guardian of the Estate of and as Next Friend of Jordan Elizabeth
Gentry, a Minor, Plaintiff-Appellee,
v.
FLINT ENGINEERING AND CONSTRUCTION COMPANY, INC.; Sunbelt
Tractor & Equipment Company, Defendants,
and
Planet Insurance Company, Movant-Appellant.
Feb. 28, 1996.
Appeal from the United States District Court for the Western
District of Texas.
Before WIENER, PARKER and DENNIS, Circuit Judges.
PER CURIAM:
This case presents the issue of whether an employer
constitutes a "third-party" for purposes of the subrogation
provision of the Texas workers' compensation statute. Tex. Labor
Code § 417.001-417.002 (West Pamphlet 1995). Following the death
of Michael Gentry in a workplace-related accident, the appellant,
Planet Insurance, paid $66,000 in workers' compensation benefits to
the minor child of Mr. Gentry. The deceased's parents and child
then brought this action under diversity jurisdiction against his
employer, Flint Engineering and Construction Co., seeking exemplary
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damages pursuant to Tex.Lab.Code Ann. § 408.001(b). The employer
settled the claim for $125,000, and Planet Insurance intervened in
the suit seeking a subrogation lien against the settlement for the
return of the $66,000 in workers' compensation benefits paid to the
child. The district court denied the claim and Planet Insurance
now appeals. We affirm.
Texas law provides for subrogation by insurance carriers to
"enforce the liability of the third party in the name of the
injured employee," and for reimbursements from awards already
collected. Tex. Labor Code § 417.001-417.002 (West Pamphlet 1995).
Planet Insurance argues that it can seek reimbursement from the
plaintiff for funds paid to her in settlement of her exemplary
damage claims by Planet's insured, the employer, because an
employer is a third party under the statute. The district court
held that an employer is not a third party under the statute.
We review conclusions of law de novo. Willis v. Roche
Biomedical Laboratories, 21 F.3d 1368, 1370 (5th Cir.1994).
In general, the concept of "third persons" against whom
common-law actions may be brought for compensable injuries,
includes all persons other than the injured person's own employer
and classes of persons treated the same as the employer for this
purpose by statute or judicial decision. See Larson, The Law of
Workers' Compensation Vol. 2A § 72.00 et seq. (1995) The Texas
statute shows no intent to depart from this general concept.
The full text of the provision at issue is as follows:
§ 417.001. Third-Party Liability
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(a) An employee or legal beneficiary may seek damages
from a third-party who is or becomes liable to pay damages for
an injury or death that is compensable under this subtitle and
may also pursue a claim for workers' compensation benefits
under this subtitle.
(b) If a benefit is claimed by an injured employee or a
legal beneficiary of an injured employee, the insurance
carrier is subrogated to the rights of the injured employee
and may enforce the liability of the third party in the name
of the injured employee or the legal beneficiary ...
§ 417.002 Recovery in Third-Party Action
(a) The net amount recovered by a claimant in a
third-party action shall be used to reimburse the insurance
carrier for benefits, including medical benefits, that have
been paid for the compensable injury.
We have not found any Texas court decision on the issue of whether
the definition of third-party may include an employer; neither
does the statute define "third-party." We must therefore look to
the ordinary meaning of the term. Rivas v. State, 787 S.W.2d 113,
115 (Tex.App.--Dallas 1990, no writ.) In a statute which describes
the legal duties owed between employers and employees,
"third-party" clearly must exclude these first and second parties.1
Any other interpretation of third-party would negate other
sections of the statute. See Volunteer Council v. Berry, 795
S.W.2d 230, 240 (Tex.App.--Dallas 1990, writ denied) (Statutory
provisions should not be interpreted to conflict with each other.)
For example, § 417.001(a) allows employees to sue third-parties for
damages outside of workers' compensation. Interpretation of
third-party to include employers would permit tort suits against
1Because we conclude that the employer is not a "third-party"
we need not reach the question of whether the insurance carrier is
subrogated to the rights of the employee to punitive or exemplary
damages as well as compensatory damages. See 2A Larson § 74.37.
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employers and would place this provision in direct conflict with
the exclusive remedy provision in § 408.001(a). Also, a
differentiation in meaning between the two terms is indicated by §
417.004, "Employer Liability to Third-Party," (employer is not
liable to third party for reimbursement or damages unless the
employer executed, before the employee's injury or death, a written
agreement with the third party to assume the liability.)
The appellants argue that the 1993 amendments to the Act
indicate a legislative intent to include employers in the
definition of third-parties. The statute previously read:
§ 6a. Recovery from third person; subrogation; attorney's
fees.
(a) If the injury for which compensation is payable under this
law was caused under circumstances creating a legal liability
in some person other than the subscriber to pay damages in
respect thereof, ...
Tex.Rev.Civ.Stat.Ann. art. 8307 § 6a(a) (Vernon's 1995 Supp. to
Volume 23) (repealed). The appellants interpret the later omission
of the language "in some person other than the subscriber" as
evidence of a change in the meaning of the statute.
The replacement of "person other than the subscriber" with
"third-party" merely substitutes terms without changing the meaning
of the law. The ordinary meaning of the term itself, especially
within the structure of the workers' compensation statute, allows
no other interpretation.
Accordingly, we AFFIRM.

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