Collyn Peddie (above) represents John Summers in Entergy Gulf States Inc. v. Summers.
Image: John Council

Millions have watched the testy presidential debates between U.S. Sens. Barack Obama and John McCain, but in terms of raw politics and finger-pointing, the debates have nothing on the Oct. 16 arguments in Entergy Gulf States Inc. v. Summers.

Before a lawyer spoke a word in front of the packed audience of about 150 people at Southern Methodist University Dedman School of Law, two legislators had issued a joint press release on Oct. 15 critical of the Texas Supreme Court's decision in Entergy. One of those lawmakers was in the audience looking on, as were health, safety and accident-victim advocates, hoping the court will overturn its previous decision.

The issue that has so many worked up about the Entergy rehearing is an overused phrase often applied by people critical of the judiciary: "legislating from the bench." It's those words that have many amici -- ranging from the Texas Trial Lawyers Association to the Texas Association of Defense Counsel -- calling on the court to reconsider its ruling, because they say it ignores legislative intent. The court granted rehearing in the worker's compensation dispute in April. At least nine amicus briefs have been filed in the case, most call-ing on the court to reverse itself.

Consider this comment by state Sen. Jeff Wentworth, R-San Antonio, a solo who signed onto an amicus brief filed by four lawmakers earlier this year accusing the high court of abusing the separation of powers doctrine in its ruling in Entergy: "I'm a Republican. All nine of the justices on the court are Republican. And the reason I voted for them . . . is they all said 'we're strict constructionists and we're not going to legislate from the bench,' " Wentworth says. "And here, they've done exactly that in my opinion."

Wentworth believes the court in Entergy gave premises owners immunity from workers' compensation suits, which the Texas Legislature never intended.

Immune From Suit

In its unanimous Aug. 31, 2007, opinion in Entergy, the Supreme Court ruled against John Summers, an International Maintenance Corp. (IMC) employee who suffered serious injuries in 2001 while working on a hydrogen cooler at Entergy's Sabine Station plant in Bridge City. The court held that Entergy was immune from Summers' suit for damages, because Summers was covered by worker's compensation insurance that Entergy had purchased. As noted in the Supreme Court's opinion in Entergy, Texas Labor Code §408.001(a) makes worker's compensation benefits an employee's "exclusive remedy" against an employer for covered work-related injuries. [See the court's opinion.]

The high court's opinion, written by Justice Don Willett, provides the following background: IMC contracted with Entergy to do construction and maintenance work on Entergy's premises. The contract refers to IMC as an independent contractor. Entergy later sent IMC an addendum to the contract, providing that the parties would recognize Entergy as the statu-tory employer of the IMC employees. In exchange for a lower contract price, Entergy agreed to provide workers' compensation insurance to IMC's Sabine Station plant employees. Summers suffered his injuries while the policy Entergy had purchased was in effect and received benefits under the policy. Summers then sued Entergy for negligence. Entergy moved for summary judgment, arguing that it was a general contractor and thereby an employer shielded from Summers' suit. Summers also filed a motion for summary judgment.

Judge James W. Mehaffy of the 58th District Court granted summary judgment in Entergy's favor, and Summers appealed to Beaumont's 9th Court of Appeals. The 9th Court reversed the trial court in 2004.

The Supreme Court reversed the 9th Court, shielding a premises owner from an injured worker's negligence suit if the owner provided workers' compensation coverage for a contractor's employees. If Entergy is a general contractor, it qualifies for the immunity from the injured worker's suit provided under the Texas Workers' Compensation Act. But if Entergy is not a general contractor, the worker can sue.

In the 2007 ruling, the Supreme Court held in Entergy that the definitions for "general contractor" and "subcontractor" in the Texas Workers' Compensation Act do not prohibit a premises owner from being a general contractor that qualifies for the exclusive-remedy defense to a personal-injury suit brought by a subcontractor's employee.

Labor Code §406.121(1) defines a general contractor as "a person who undertakes to procure the performance of work or a service, either separately or through the use of subcontractors." Labor Code §406.121(5) defines a subcontractor as "a person who contracts with a general contractor to perform all or part of the work or services that the general con-tractor has undertaken to perform."

Heated Argument

Even before Jacqueline Stroh, a shareholder in San Antonio's Crofts & Callaway who represents Entergy, could complete her opening statements, justices made note of the broad amici interest in the case and the debate over whether the court had properly followed the Legislature's intent.

"Do you agree we should be looking at legislative intent?" Chief Justice Wallace Jefferson asked.

"No I do not," Stroh replied.

Stroh told the court that it should look at the plain language of the statute, which Willett did when writing his opinion. And she noted that even though the Legislature has repeat-edly rejected bills that have sought to give premises owners immunity in workers' comp cases, "failed bills" are no evidence of the Legislature's intent, because there's no way to deter-mine why lawmakers rejected those measures.

Justice Harriet O'Neill then jumped in, noting that the court only looks at legislative intent when the language of the statute is not clear, and it didn't seem clear to her. She noted that "no court has held that premises owners can be general contractors."

Getting in a jab at the lawyer representing the New Orleans-based power company, O'Neill asked, "Is Entergy in the business of fixing turbines?" -- the machinery Summers was working on when he was injured.

Stroh held her ground by replying that some Entergy employees indeed worked alongside IMC employees during the 2001 repairs at the plant.

But the court spent more than 30 minutes of the hour-long arguments grilling Collyn Peddie, a lawyer with Houston's Williams Kherkher Hart Boundas, who represents Sum-mers.

O'Neill asked Peddie: When a premises owner pays for workers' compensation insurance and a worker gets to sue them, what's fair about that?

Peddie responded that there's a reason the Legislature did not give premises owners immunity from workers' comp suits.

"There are other values here. There is the safety issue," Peddie told O'Neill. "Complete immunity destroys the incentive to make the workplace safe."

"Doesn't a lot of it go to the Workers' Compensation Act as a whole?" Jefferson asked Peddie, referring to the policy debate about the intent of the law. "Isn't this a question for the Legislature?"

"I think what the court did [in Entergy] was upset the balance in the Workers' Compensation Act," said Peddie.

Willett, the author of the 2007 Entergy opinion, asked the lawyers a few questions that were mainly focused on the intent of the Legislature before and after it passed the 1989 Workers' Compensation Act.

But the zinger of the argument came when Peddie noted that even the Texas Trial Lawyers Association and the Texas Association of Defense Counsel have asked the high court to change its decision in Entergy.

"So all the lawyers agree," Justice Scott Brister told Peddie. "But of course lawyers are always better off when there's more lawsuits."

Activist and Lawmaker Concern

Immediately after the argument a group of lawmakers and activists gathered behind the law school to meet with reporters about the importance of the Entergy case.

State Rep. Craig Eiland, D-Galveston, who filed an amicus brief in the case along with Wentworth, state Sen. Rodney Ellis, D-Houston, and state Rep. Bryan Hughes, R-Mineola, said although the court denied his motion to address the justices as an amici during the arguments, the justices would have allowed him to speak on the condition that one of the party's lawyers had given him five minutes of her argument time.

Eiland declined to take time away from either party, he says, because the lawmakers are not aligned with either of them. His interest in the case is simply protecting the separa-tion of powers, he said.

Entergy is important, because "the Supreme Court is basically legislating where we refused to legislate. And we want to stop that now and certainly don't want it to become a trend," Eiland said.

Eiland added that the court ignored an important statute in arriving at its 2007 decision -- Chapter 95 of the Texas Civil Practice & Remedies Code. That law, passed in the mid-1990s, gave "premises owners protection but not immunity" from suits by independent contractors.

State Rep. Helen Giddings, D-Dallas, who has served for more than a decade on the House Business & Industry Committee, said the committee has consistently rejected bills that would give premises owners protection from workers' compensation suits.

"In terms of legislative intent, that's clearly been established," Giddings said.

Stroh, who represents Entergy, declined to comment after the argument.

Peddie acknowledged that she felt like she had a tough time trying to convince nine Supreme Court justices to change their minds.

"I don't feel bad about our argument," Peddie says. "But it's sobering that the court was not more accepting of our argument. But you can't tell."