East Texas Medical Center Athens (ETMC Athens) employed Sharon Dunn as an emergency-department nurse, and Dunn alleges that she suffered a serious back injury during a shift when an emergency medical technician (EMT) who was not an ETMC Athens employee pushed a stretcher into her.¹ ETMC Athens elected not to subscribe to the Texas workers' compensation program.²

Dunn first sued the EMT and his employer, but the trial court dismissed those claims because she did not timely serve the expert report the Texas Medical Liability Act requires for health care liability claims; while that dismissal motion was pending she amended to assert negligence claims against ETMC Athens.¹ ETMC Athens moved for leave to designate the EMT and his employer as responsible third parties, Dunn did not object, and the trial court granted the motion; eleven months later it granted Dunn's motion to strike the designations, in part because she argued the proportionate-responsibility statute does not apply to a suit against a nonsubscribing employer.² The Twelfth Court of Appeals in Tyler denied mandamus.³ ETMC Athens petitioned this Court on December 22, 2023; the Court requested merits briefing on June 21, 2024, heard argument on January 28, 2025, and decided the case on April 25, 2025.⁴

Original proceeding (petition for writ of mandamus) after the court of appeals denied relief; argued January 28, 2025, and decided April 25, 2025.⁵

ETMC Athens presents whether the trial and appellate courts abused their discretion in striking the designations when the only ground for striking a responsible third party is that no evidence shows the person's responsibility, and whether relying on Keng I to hold that a nonsubscriber cannot designate responsible third parties was error.¹ Dunn contends that the proportionate-responsibility statute does not apply in a nonsubscriber case because it is an action to recover workers' compensation benefits, which makes the sufficiency question moot.² The Court addressed three questions: whether the statute applies, whether the Workers' Compensation Act bars designation, and whether the record contains sufficient evidence.³

Mandamus requires a clear abuse of discretion and no adequate remedy by appeal, and a trial court abuses its discretion if it fails to correctly construe a statute or apply it to the facts.¹ A trial court must grant a motion to strike a designation unless the defendant produces sufficient evidence to raise a genuine issue of fact regarding the designated person's responsibility, a standard similar to the no-evidence summary-judgment standard.²

Whether the proportionate-responsibility statute applies and the designations were properly struck.

Relator (ETMC Athens): Only one ground exists for striking a responsible third party, a determination that no evidence establishes the person's responsibility, and the trial court abused its discretion by striking both designations when the record contained sufficient evidence; Dunn waived any non-evidentiary objections by not objecting within 15 days, and in any event the proportionate-responsibility defense applies to nonsubscriber cases.¹ It argues that Dunn's claim that it needed its own expert has no basis in chapters 33 or 74 of the Civil Practice and Remedies Code, because the inquiry considers all evidence regardless of which party offered it.²

Real parties in interest (Dunn): Chapter 33 is inapplicable because a negligence suit against a nonsubscriber is an action to recover workers' compensation benefits, as the Tyler court held in Keng I, which was binding on the trial court and has never been overruled, and the Act should be liberally construed in favor of the worker.³ She also argues that ETMC Athens designated no expert to establish the EMT's standard of care, and that it cannot show it lacks an adequate remedy by appeal.⁴

ETMC Athens argued that Keng I conflicts with decisions of other courts, including the Court and the Dallas Court of Appeals, and that the trial court's ruling leaves it with no adequate remedy by appeal.¹ Dunn responded that the trial court followed binding precedent and that ETMC Athens failed to meet its heavy burden for mandamus.²

• Tried or settled. Asked whether tried or settled outcomes would be as ETMC's counsel describes, Dunn's counsel doubted it and stood on the position that Chapter 33 does not apply. (Oral Argument, 0:36:27)
• Remand. Asked whether to remand for the court of appeals to address evidence sufficiency, Dunn's counsel said the Court could easily write the opinion itself and evaluate the expert report. (Oral Argument, 0:21:33)
• Common-law third-party practice. Asked whether third-party practice existed at common law when section 406.033 was enacted, Dunn's counsel said they would follow up, pointing to a 1937 amendment. (Oral Argument, 0:29:53)
• Striking the designation. Asked about Chapter 74, Dunn's counsel said a motion to strike a designation requires showing no evidence, and ETMC has none on the EMS standard of care. (Oral Argument, 0:18:17)
• Meaning of benefits. Asked whether Chapter 33's exclusion for benefits suits means no carving up, ETMC's counsel agreed that no-fault is the whole idea and said it supports its reading of benefits. (Oral Argument, 0:03:59)

• Texas Alliance of Nonsubscribers, et al. filed an amicus curiae brief on January 2, 2025.
• TRT Holdings, Inc. filed a notice of joinder as amicus curiae on February 13, 2025.

Holding

An employee's negligence claim against a nonsubscribing employer is not "an action to collect workers' compensation benefits under" the Workers' Compensation Act, so the proportionate-responsibility statute applies; the Act does not prohibit a nonsubscriber from designating responsible third parties; and the record contains sufficient evidence of the EMT's and his employer's responsibility, so the trial court abused its discretion by striking the designations, and the employer lacks an adequate remedy by appeal.¹

Reasoning

The statute applies. The Act lets employers choose whether to subscribe; a subscriber's employee recovers no-fault "benefits," while an employee of a nonsubscriber must prove the employer's negligence to recover "damages".² The Act draws that distinction repeatedly, defining "benefits" as specific medical, income, death, and burial benefits, and the Court's cases have consistently described claims against nonsubscribers as common-law claims, so Dunn's suit seeks damages and not benefits, even if her claim "arises under" the Act because the Act requires her to prove negligence.³ The Court noted that Keng I was affirmed on other grounds and that its own decision in Keng expressly did not reach the question, and held that section 33.002(c)(1) does not exclude the claim.⁴

The Act does not bar designation. Section 406.033(a) prohibits a nonsubscriber from asserting the employee's contributory negligence, assumption of the risk, or a fellow employee's negligence, but it does not preclude apportionment generally, and the Court's statement in Austin v. Kroger that the section prohibits "proportionate responsibility" must be read in context as barring responsibility based on the employee's own knowledge and negligence.⁵ Chapter 417 of the Labor Code applies only to subscribers and does not limit nonsubscribers.⁶

Sufficient evidence. The record contains Dunn's own expert testimony on the EMT's duties, breach, and causation, testimony from Dunn and a coworker that the EMT negligently harmed her, the EMT's admission that if he did what she alleged he would have violated the standard of care, and her physicians' testimony.⁷ The Medical Liability Act's expert-report requirement applies to claimants, not to ETMC Athens, which asserts no health care liability claim, and the responsible-third-party standard requires only evidence raising a fact issue.⁸

No adequate remedy. Under Coppola and later cases, erroneous denial of leave to designate responsible third parties necessarily leaves no adequate appellate remedy, and erroneous striking of a designation is at least arguably analogous because it impairs the same right to have the factfinder determine all responsible parties' proportionate responsibility.⁹

Disposition

The Court conditionally granted mandamus relief and ordered the trial court to vacate its order striking the designation of the EMT and his employer as responsible third parties.¹⁰

Vote Breakdown

Majority Opinion by Justice Boyd

Joined by Blacklock, C.J., and Bland, Busby, Devine, Huddle, Lehrmann, Sullivan, and Young, JJ.