UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 01-50292

____________

JOSE HERNANDEZ,

Plaintiff-Appellant,

versus

JOBE CONCRETE PRODUCTS, INC.,

Defendant-Appellee.

Appeal from the United States District Court

For the Western District of Texas

February 26, 2002

Before EMILIO M. GARZA, BENAVIDES, and STEWART, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Plaintiff-Appellant Jose Hernandez (“Hernandez”) brought thissuit in state court against his

former employer Jobe Concrete Products, Inc. (“Jobe”) after he suffered an on-the-job injury. After

Jobe successfully removed the case to federal court, the district court issued a judgment dismissing

Hernandez’s complaint and compelling arbitration between the parties. On appeal, Hernandez

challenges the subject matter jurisdiction of the district court. We must decide whether ERISA’s

preemption provisions confer federal jurisdiction, or whether the district court should have granted
1 We note that the district court failed to specifically address Hernandez’s motion to remand

when it denied all motions and dismissed the complaint. In light of the fact that Hernandez has not

requested a remand to the district court for consideration of his motion, and in the interest of judicial

-2-

Hernandez’s motion to remand the case to state court.

Hernandez injured his back in the course of his employment for Jobe. Hernandez contends

that after hisreturn to work following hisinjury, he wasrequired to perform “arduous manual work”

in contravention of his doctor’s instructions. As a result, Hernandez quit his job with Jobe, and his

medical benefits under Jobe’s occupational injury plan ceased. Hernandez subsequently brought suit

against Jobe, asserting claims for unlawful retaliation, negligence, breach of contract, breach of the

covenant of good faith and fair dealing, and intentional infliction of emotional distress. After

Hernandez’s initial claim was filed in state court, Jobe removed the case to federal district court

pursuant to 28 U.S.C. § 1331, alleging that Hernandez’s state law claims were preempted by the

Employee Retirement Income Security Act of 1974, as amended, (“ERISA”), 29 U.S.C. § 1001 et

seq., because his claims related to an employee benefit plan. Jobe then filed a motion to compel

arbitration and to stay proceedings, and a FED. R. CIV. P. 12(b)(6) motion to dismiss. Hernandez

filed a motion to remand to state court, arguing that Jobe’s benefit plan, as a state-regulated workers’

compensation plan, was exempt from the provisions of ERISA under 29 U.S.C. § 1003(b). Rather

than addressing Hernandez’s motion to remand, the district court granted Jobe’s motion to compel

arbitration, denied all remaining motions as moot, and dismissed the case. We must now determine

whether Jobe’s plan is an ERISA plan subject to federal preemption, or whether it falls within the

exception to preemption reserved for state workers’ compensation plans. 

We review the denial of a motion to remand de novo. Medina v. Ramsey Steel Co., Inc., 238

F.3d 674, 680 (5th Cir. 2001).1
economy, we resolve the issue here. Because this appeal raises purely legal questions, we can

proceed without violating the prohibition against factfinding by the appellate court. See 28 U.S.C.

§ 1291. 

2

In Shaw v. Delta Airlines, Inc., the Supreme Court held that this exception will apply only

to plans which are both separately administered and maintained solely to comply with state law. 463

U.S. 85, 107-108 (1983); Gibbs v. Serv. LloydsIns. Co., 711 F. Supp. 874, 878-79 (E.D. Tex. 1989).

A failure of either requirement is dispositive. Guilbeaux v. 3927 Found., Inc., 177 F.R.D. 387, 394

n.2 (E.D. Tex. 1998) (concluding that since plan was not “solely to comply” with state law, a

discussion of the “separately administered” component was unnecessary). 

-3-

 ERISA, a comprehensive federal scheme designed to protect the participants and beneficiaries

of employee benefit plans, supercedes “any and all State laws insofar as they may now or hereafter

relate to any employee benefit plan.” 29 U.S.C. § 1144(a). An employee benefit plan is defined as

“any plan, fund or program” established or maintained by an employer or employee organization to

provide participants and their beneficiaries with “medical, surgical, or hospital care or benefits, or

benefitsin the event ofsickness, accident, disability, death or unemployment.” 29 U.S.C. § 1002(1).

The part ies agree that Jobe’s plan is a benefit plan that would normally fall within the scope of

ERISA. However, they disagree as to whether the plan falls within one of the statute’s exceptions

to preemption. Section 1003(b)(3) exempts from ERISA coverage any employee benefit plan if “such

plan is maintained solely for the purpose of complying with applicable workmen’s compensation laws

or unemployment compensation or disability insurance laws.” 29 U.S.C. § 1003(b)(3).2 If a claim is

preempted by ERISA, and relates to an employee’s status as the beneficiary of a benefit plan, it falls

within the federal court’s jurisdiction and is removable pursuant to 28 U.S.C. § 1441(b).

Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 67 (1987) (holding causes of action falling within

ERISA’s enforcement provisions, codified at 29 U.S.C. § 1132, are removable under complete
3 We normally apply a two-part analysis to determine whether a state law claim is preempted

under ERISA. First, we examine whether the benefit plan at issue constitutes an ERISA plan; and

second, we determine whether the claims “relate to” the plan. Ingersoll-Rand. Co. v. McClendon,

498 U.S. 133, 138-40 (1990). Because we address only the jurisdictional question in this case, as the

parties have conceded the claims relate to the plan, we need not complete the second part of the

analysis under Ingersoll-Rand. However, we note that we have previously held that claims asserting

breach of contract, breach ofthe covenant of good faith and fair dealing, and the intentional infliction

of emotional distress, are all “related to” ERISA plans. Hogan v. Kraft Foods, 969 F.2d 142, 144-45

(5th Cir. 1992). Even though we have previously held negligence claims against employers do not

relate to ERISA plans, once a claim is properly removed, the federal court can exercise supplemental

jurisdiction over a non-related claim pursuant to 28 U.S.C. § 1367(a). See Pyle v. Beverly Enters.-

Tex., Inc., 826 F. Supp. 206, 211-12 (N.D. Tex. 1993).

-4-

preemption doctrine); Anderson v. Elec. Data Sys. Corp., 11 F.3d 1311, 1315 (5th Cir. 1994).3

The Texas Workers’ Compensation Act (“TWCA”) governs the distribution of benefits to

workers who are injured on the job. The Texas statute is different from most other states in that it

gives employers the option not to carry insurance coverage under the TWCA. See TEX. LAB. CODE

ANN. § 406.002 (Vernon 1996). If an employer chooses not to carry such coverage, then the nonsubscriber’s employees retain the right to sue their employer in state court, and the employer is

deprived of traditional common law defenses. TEX. LAB. CODE ANN. § 406.033 (Vernon 1996).

Jobe is a “nonsubscriber” under the TWCA, because it elected to adopt its own occupational injury

plan to cover on-site injuries. This plan, titled the “Jobe Concrete Products, Inc. Occupational

Benefit Program” (the “Jobe Plan”), provides benefits resulting from a work-related injury for (1)

short-termdisability;(2) death, dismemberment, and permanent total disability; and (3) medical care.

The plan also includes a waiver that provides all claimsfor damages or harmresulting froman on-thejob injury will be subject to binding arbitration. 

Jobe arguesthat becauseTexas does notrequire employersto provideworkers’ compensation

insurance, either by subscribing to the state plan or by offering an equivalent alternative, the Jobe Plan
4 We note that in Lawrence, the Texas Supreme Court held that a non-subscriber benefit plan,

which required employees to waive completely their common law remedies in order to receive

benefits under the plan, did not violate the TWCA or public policy. Lawrence, 44 S.W.2d at 550-53.

While the court did not specifically discuss ERISA preemption, it made clear that clauses in which

employees waive their rights in exchange for benefits, such as the arbitration clause at issue in this

case, are clearly enforceable. 

-5-

is not maintained solely for the purpose of complying with Texas workers’ compensation law, as

required by § 1003(b). We agree. No Texas law requires Jobe to provide or maintain its plan. See

Lawrence v. CDB Servs., Inc., 44 S.W.3d 544, 552 (Tex. 2001) (emphasizing fact that participation

in the Texas workers’ compensation scheme is voluntary on the part of both employers and

employees).4 Instead, Jobe has undoubtedly created and maintained its plan in order to avoid the high

cost of insurance under the TWCA, and in an effort to limit its liability in the absence of such

insurance. See Nunez v. Wyatt Cafeterias, Inc., 771 F. Supp. 165, 167 (N.D. Tex. 1991) (noting that

personal injury actions relating to non-subscriber’s plan would be preempted by ERISA). 

Other courts, when presented with similar facts, have held that non-subscribers who adopt

their own benefit plans to provide on-site injury coverage are not exempt from preemption under §

1003(b)(3). See Guilbeaux v. 3927 Found., Inc., 177 F.R.D. 387, 393-94 (E.D. Tex. 1998) (holding

that non-subscriber cannot create and maintain a self-funded plan in order to avoid the requirements

of the TWCA, and also argue that such plan is maintained “solely to comply” with the TWCA); Pyle

v. Beverly Enters.-Tex., Inc., 826 F. Supp. 206, 209-10 (N.D. Tex. 1993) (finding that the noncompulsory nature ofTexas’sstatutory scheme precluded any claimby a non-subscriber that the plan

was maintained solely to complywith state law);see also Rojas v. DAJ Enters., Inc., No. EP-00-CA313-DB, 2001 WL 682223, at *3 (W.D. Tex. Mar. 6, 2001) (holding that because employer chose

not to subscribe to the TWCA it could not benefit from exemption provision of § 1003(b)). But see
5

 Our holding is consistent with our decision in Hook v. Morrison Milling Co., 38 F.3d 776

(5th Cir. 1994). In Hook, we analyzed whether an employee’s negligence claim against her nonsubscribing employer “arose under” the employer’s self-funded welfare benefit plan. Id. at 786.

Although we concluded that the action was not preempted, we did note that the self-funded plan was

governed by ERISA. Id. at 778. If the claim had been more closely related to the plan, federal

jurisdiction would have been proper. 

-6-

Foust v. City Ins. Co., 704 F. Supp. 752, 753-54 (W.D. Tex. 1989) (holding that whether or not

employer opted into TWCA, choice was made solely to comply with TWCA, and therefore bad faith

claim against insurer was not preempted by ERISA).5 

IfJobe had opted to obtain workers’ compensation insurance in compliance with the TWCA,

ERISA would not have preempted Hernandez’sstate law claims. See Gibbs v. Serv. LloydsIns. Co.,

711 F. Supp. 874, 878 (E.D. Tex. 1989) (describing requirement, under Texas workers’

compensation scheme, that insurance policies purchased from outside providers meet statutory

guidelines in order for limited liability benefits to attach). Instead, Jobe chose to adopt its own plan,

a decision clearly not required under Texas law. See Pyle, 826 F. Supp. at 209 (finding no

preemption forself-funded plan);see also Lawrence, 44 S.W.3d at 552 (describing employer’s choice

to either subscribe to TWCA or to forego traditional common-law defenses in the event of an

employee’s lawsuit). 

We believe our holding is consistent with the purposes of ERISA. Because the exemption

in § 1003(b) was designed to allow statesto control their workers’ compensation schemes, it should

not apply where a “state voluntarily cedes control over certain plans by allowing employers to exist

outside of the workers’ compensation system.” Guilbeaux, 177 F.R.D. at 394. 

For the foregoing reasons, we hold that remand of Hernandez’s claims to the state court is

inappropriate in this action. Thus, we AFFIRM the judgment of the district court compelling
-7-

arbitration and dismissing Hernandez’s complaint.