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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
 

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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(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
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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.