Opinion filed November 12, 2010

In The

Eleventh Court of Appeals 

__________

No. 11-10-00245-CV

__________

IN RE TEXAS MUTUAL INSURANCE COMPANY ET AL

Original Mandamus Proceeding

O P I N I O N

Relators Texas Mutual Insurance Company; Steven Painter; Tonya Wright, individually 

and as representative of the estate of Earl A. Wright, III, deceased; Virginia Weaver, individually 

and as representative of the estate of Albert A. Carrillo and as next friend of Albert A. Carrillo, 

Jr., a minor, (Texas Mutual) filed a petition for writ of mandamus, seeking to compel the trial 

court to grant their plea to the jurisdiction and to dismiss the suit of real party in interest, 

Amerimex Drilling I, Ltd. We conditionally grant Texas Mutual’s petition.

I. Background Facts

Painter, Wright, and Carrillo were crewmembers in Amerimex’s oil drilling operations.

After work on July 28, 2007, Amerimex driller J.C. Burchett was driving the crewmembers to a 

company-owned bunkhouse when they were involved in an automobile accident. Burchett and 

Painter were injured, and Wright and Carrillo were killed. Burchett filed a claim for workers’ 

compensation benefits. The crewmembers and their representatives did not. Amerimex’s

carrier, Texas Mutual, disputed Burchett’s claim. The Texas Department of Insurance—Division 
2

of Workers’ Compensation found that Burchett suffered a compensable injury and ordered Texas 

Mutual to pay benefits. Texas Mutual filed suit to appeal this determination.

Meanwhile, Amerimex initiated proceedings at the Division to determine whether the 

injuries suffered by Painter, Wright, and Carrillo were covered by its workers’ compensation

policy. A Division appeals panel found that Amerimex lacked standing. The appeals panel also 

determined that, if Amerimex did have standing, it would have found that the crewmembers were 

not injured in the course and scope of employment and, therefore, that their injuries were not 

covered by Amerimex’s workers’ compensation policy.

Amerimex filed a petition in intervention in the judicial review case between Texas 

Mutual and Burchett, seeking a declaratory judgment that Painter, Wright, and Carrillo were 

injured in the course and scope of employment. Texas Mutual filed a plea to the jurisdiction, 

arguing that Amerimex lacked standing to intervene. The crewmembers and their 

representatives, who were added as defendants by Amerimex’s petition, also filed pleas to the 

jurisdiction. The trial court denied the pleas to the jurisdiction.

II. Issue

Texas Mutual seeks a writ of mandamus ordering the trial court to grant relators’ plea to 

the jurisdiction and to dismiss Amerimex’s suit for lack of standing.

III. Standard of Review

To be entitled to the extraordinary relief of a writ of mandamus, Texas Mutual must show

that the trial court abused its discretion and that there is no adequate appellate remedy. In re 

Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004). A trial court abuses its 

discretion if it reaches a decision so arbitrary and unreasonable as to constitute clear and 

prejudicial error of law or if it clearly fails to correctly analyze or apply the law. In re Cerberus

Capital Mgmt., LP, 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding). In determining 

whether appeal is an adequate remedy, we consider whether the benefits outweigh the detriments 

of mandamus review. In re BP Prods. N. Am., Inc., 244 S.W.3d 840, 845 (Tex. 2008) (orig. 

proceeding). The failure to grant a plea to the jurisdiction for failure to exhaust administrative 

remedies with the Division is subject to mandamus review in order to prevent disruption of the 

orderly processes of government. In re Liberty Mut. Fire Ins. Co., 295 S.W.3d 327, 328 (Tex. 

2009) (orig. proceeding).
3

IV. Did the Trial Court Abuse its Discretion By Finding that Amerimex Had Standing?

Standing is a prerequisite to subject-matter jurisdiction. Bland Indep. Sch. Dist. v. Blue, 

34 S.W.3d 547, 553, 558 (Tex. 2000). The Workers’ Compensation Act vests the Division with 

exclusive jurisdiction to determine a claimant’s entitlement to benefits, subject to judicial review. 

In re Liberty, 295 S.W.3d at 328. Judicial review is available only to a party that has exhausted 

its administrative remedies and that is aggrieved by a final decision of an appeals panel. TEX.

LAB. CODE ANN. § 410.251 (Vernon 2006). The Act provides two ways for an employer to bring 

a claim with the Division: either as a subclaimant or by disputing the compensability of a claim 

if the carrier has accepted liability for the payment of benefits. TEX. LAB. CODE ANN. §§ 

409.009, 409.011(b)(4) (Vernon 2006).

Texas Mutual argues that Amerimex lacked standing to intervene because Amerimex was 

not a subclaimant and because it did not accept liability for the crewmembers’ claims.

Amerimex responds that it has standing to enforce its rights as a policyholder – the workers’ 

compensation bar to tort claims, that it is an aggrieved party, that it is a subclaimant, and that the 

Division’s conflicting course and scope rulings present a justiciable controversy.

A. Was Amerimex a Subclaimant?

Amerimex argues that it had standing to bring a claim with the Division as a subclaimant, 

maintaining that its payment of health insurance premiums after the crewmembers’ accident was 

―compensation‖ within the meaning of the Act. A person qualifies as a subclaimant if he has 

provided compensation, directly or indirectly, to or for an employee or legal beneficiary; if he

has sought and been refused reimbursement from the insurance carrier; and if he has filed a 

written claim with the Division. Section 409.009.

The Act defines ―compensation‖ as the ―payment of a benefit.‖ TEX. LAB. CODE ANN. 

§ 401.011(11) (Vernon Supp. 2010). A ―benefit‖ is defined as ―a medical benefit, an income 

benefit, a death benefit, or a burial benefit based on a compensable injury.‖ Section 401.011(5). 

―Medical Benefit‖ means ―payment for health care reasonably required by the nature of a 

compensable injury.‖ Section 401.011(31). ―Health care reasonably required‖ means ―health 

care that is clinically appropriate and considered effective for the injured employee’s injury.‖ 

Section 401.011(22-a). ―Income benefit‖ means ―a payment made to an employee for a 

compensable injury‖ other than a medical benefit, death benefit, or burial benefit. 

Section 401.011(25). ―Death benefit‖ means a payment made ―to a legal beneficiary because of 
4

the death of an employee.‖ Section 401.011(13). An example of a ―burial benefit‖ would be the 

―actual costs incurred for reasonable burial expenses.‖ TEX. LAB. CODE ANN. § 408.186(a)(1)

(Vernon 2006).

The ultimate goal in construing a statute is to effectuate the legislature’s intent. Union 

Banker’s Ins. Co. v. Shelton, 889 S.W.2d 278, 280 (Tex. 1994). To ascertain the legislature’s 

intent, we examine the statute’s plain language. City of DeSoto v. White, 288 S.W.3d 389, 394-

95 (Tex. 2009). Because the words chosen by the legislature ―should be the surest guide to 

legislative intent,‖ the text is determinative unless enforcement of the statute’s plain language 

would produce absurd results. Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 

2009).

Payment of health insurance premiums does not fit within any of the statutory categories 

of benefits. Compensation benefits address a specific on-the-job injury. Health insurance 

premiums do not. They are contractual payments for insurance coverage for a specified period 

of time and for a defined group of people. Because of the wide variances in coverage provided 

by health insurance policies and the lack of evidence of any medical coverage provided to the 

crewmembers, we cannot even be sure that Amerimex’s policy provided coverage for on-the-job 

injuries. Premium payments, therefore, are not compensation within the meaning of the Act. 

Even if we are in error, Amerimex provided no evidence that it requested but was denied 

reimbursement from Texas Mutual,1 Amerimex did not file a claim for reimbursement with the 

Division,2and it has not identified any reimbursable claim for which Texas Mutual is 

responsible. Amerimex does not have standing as a subclaimant under Section 409.009.

 

1Amerimex directs our attention to the Hearing Officer’s Decision and Order in the crewmember-related proceedings it 

initiated and to the transcript of the contested case hearing involving Burchett as evidence that it did file a claim for 

reimbursement. In the Amerimex-initiated proceedings, the Hearing Officer found that Amerimex had:

[F]ailed to show that it had sought and been refused reimbursement from the carrier for these premiums. 

Although the Chief Financial Officer testified that he sought reimbursement from the Carrier for payment of 

group health insurance premiums, his testimony did not provide sufficient evidence of how and in what 

amounts he sought reimbursement, and whether and in what manner the insurance carrier refused.

Amerimex directs us to nothing in the record to refute the Hearing Officer’s conclusions or to otherwise show that Texas Mutual 

refused its request.

At the beginning of the contested case hearing involving Burchett, Amerimex’s counsel told the Hearing Officer that 

the proceeding was not filed as a subclaimant claim but that they had presented a subclaim to Texas Mutual. Counsel’s statement 

to the Hearing Officer is no evidence of a reimbursement request.

2Amerimex tells us in its response that it filed a written claim with the Division, but it does not direct our attention to 

any evidence of that claim.
5

B. Was Amerimex Contesting the Compensability of a Claim for which Texas Mutual has 

Accepted Liability?

The Act gives an employer the right to dispute the compensability of a claim if the carrier 

has accepted liability for the payment of benefits. Section 409.011(b)(4). The crewmembers did 

not file claims with Division, and Texas Mutual has not otherwise accepted liability for any 

claims resulting from the accident. Amerimex, therefore, does not have standing under 

Section 409.011(b)(4).

C. Does Amerimex Otherwise have Standing?

Amerimex maintains that Section 409.011 of the Texas Labor Code is merely a notice 

provision and that it does not set forth an exhaustive list of an employer’s rights. It argues that,

beyond the rights provided by Sections 409.009 and 409.011, an employer has a contractual right 

to have course and scope issues resolved administratively.

We ascertain legislative intent by looking at the entire act, including the caption and 

body. See Hartford Ins. Co. v. Crain, 246 S.W.3d 374 (Tex. App—Austin 2008, no pet.); 

Morroquin v. State, 112 S.W.3d 295 (Tex. App.—El Paso 2003, no pet.). Section 409.011 is 

entitled ―Information Provided to Employer; Employer’s Rights.‖ It requires the Division to 

give notice to the employer of ―the employer’s rights and responsibilities under [the Workers’ 

Compensation Act].‖ Section 409.011(a)(3). It then lists the rights this notice must include, 

among them the right to contest the compensability of a claim if the carrier has accepted liability. 

Section 409.011(b). Consequently, we disagree with Amerimex. Section 409.011 is not merely 

a notice provision but is descriptive of its rights. See Simplex Elec. Corp. v. Holcomb, 949 

S.W.2d 446, 448 (Tex. App.—Austin 1997, pet. denied) (holding that an employer does not have 

the right to contest compensability of a claim after the carrier failed to dispute liability within the 

requisite time limits, as this failure was not acceptance of liability).

Amerimex, however, argues that it has much broader standing rights, and it relies heavily 

upon In re Tyler Asphalt & Gravel Co., 107 S.W.3d 832 (Tex. App.—Houston [14th Dist.] 2003, 

orig. proceeding). In Tyler, an employee was killed while on the employer’s premises. The 

employee’s family filed a tort suit in Harris County against the employer and others. The 

employer asserted the workers’ compensation bar as an affirmative defense. Additionally, 

because it had previously paid the employee’s burial expenses, the employer sought 

reimbursement from its workers’ compensation carrier. The carrier contested the claim, 
6

contending that the employee was not within the course and scope of his employment at the time 

of his accident. The Division found that the employee was within the course and scope of his 

employment, and the carrier filed suit in Smith County to seek judicial review of this decision. 

Id. at 836-37. The employer filed a motion to abate the Harris County tort litigation, and when 

this motion was denied, it filed a petition for writ of mandamus. Id. at 837.

The Houston Court was primarily concerned with resolving the conflicting jurisdictional 

issues caused by two trial courts being simultaneously asked to determine whether the employee 

was acting within the course and scope of his employment at the time of his death. But, in its 

analysis, the Houston Court made comments that both parties have seized upon. Texas Mutual 

highlights the Houston Court’s statement that the Act is contractual in nature and that, by paying 

insurance premiums, employers bargained for the right to have course and scope issues resolved 

through the Division’s more efficient administrative process. Id. at 844. Amerimex interprets 

this as authority that it always has standing to go before the Division to have course and scope 

issues resolved.

The Houston Court’s statement, however, must be read in context. The employer’s 

standing was not in question because it was a subclaimant. The question was whether the Harris 

County tort litigation should be stayed pending the resolution of the Smith County judicial 

review suit. Both suits involved the same course and scope issue, and each court was equally 

able to address it. The resolution of which court had jurisdiction, however, carried procedural 

consequences. If the Harris County tort suit proceeded, the employer would be unable to assert 

its exclusivity defense because the Division’s course and scope finding was binding pending the 

judicial review suit. The employer had the burden of proof on course and scope in the tort trial,

but the employee’s family did in the judicial review suit. Id. at 844. The Houston Court 

correctly noted that an employer has contractual rights as a subscriber and that, to protect these 

rights, the judicial review suit should not be impacted by a competing tort suit. It found, 

therefore, that the court in Smith County had exclusive jurisdiction. Id. at 838.

The Houston Court’s statement on the employer’s contractual right to an administrative 

determination does not mean that employers always have standing. The court summarized its 

analysis by writing, ―Smith County . . . has exclusive jurisdiction because determination of the 

course and scope issue is committed to the statutory workers’ compensation process, judicial 

review is part of that process, and judicial review must occur in Smith County.‖ Id. This 
7

analysis assumes the Division’s jurisdiction over the course and scope issue was properly 

invoked. If so, that jurisdiction could not be defeated by collateral tort litigation. That 

assumption cannot be employed here because the Division’s jurisdiction was not properly

invoked if Amerimex does not have standing.

The Houston Court was concerned that the employer would lose its rights as a subscriber 

if the tort suit proceeded. Amerimex contends that it is in a similar situation and complains that 

the Division’s conflicting course and scope findings placed it in an impossible situation. 

Amerimex advises us that the plaintiffs in the tort suit are attempting to hold it liable for 

Burchett’s actions under a respondeat superior theory. It is concerned that they might attempt to 

introduce the Division’s finding that Burchett was in the course and scope of his employment 

and argue that this is improper because the Division determined course and scope under the 

Act’s standard but that a different standard applies for respondeat superior claims.

We empathize with the concern over the Division’s conflicting course and scope findings

and the propriety of an alternative course and scope finding when the Division has determined 

that Amerimex did not have standing but disagree that this has placed Amerimex in an 

impossible situation. If the tort claimants attempt to introduce the Division’s findings in the 

Burchett proceeding, we are confident that the trial court can appropriately consider Amerimex’s 

concerns.

Amerimex does not have a general contractual right of standing.

D. Was Amerimex Aggrieved by a Final Decision?

Only a party that has exhausted its administrative remedies and that is aggrieved by a 

final decision of the appeals panel may seek judicial review. TEX. LAB. CODE ANN. § 410.251

(Vernon 2006). To be aggrieved by a final decision, the loss resulting from the final decision

must be actual and immediate. Ins. Co. of State of Pa. v. Orosco, 170 S.W.3d 129, 133 (Tex. 

App.—San Antonio 2005, no pet.).

Amerimex argues that it is aggrieved by the Division’s decision that it lacked standing to 

bring the crewmembers’ claims because it now must litigate the crewmembers’ personal injury 

lawsuit in the midst of conflicting Division course and scope findings. It characterizes this as an 

imposition of a legal injustice. The future defense of a personal injury lawsuit is not an actual 

and immediate loss. See Orosco, 170 S.W.3d at 133 (the possibility of a future loss is not an 
8

actual and immediate loss). Moreover, the Division’s decision did not require Amerimex to pay 

any money or deprive it of any substantive defense.

Amerimex’s position assumes that, if we find that it had no standing to initiate a course 

and scope proceeding with the Division, this will impose a defensive obligation that it would not 

otherwise have. This assumption is incorrect. The crewmembers have the right to claim that 

they were not in the course and scope of their employment but that Burchett was. To this claim, 

Amerimex has the right to assert the affirmative defense that workers’ compensation benefits are 

their exclusive remedy. Regardless of whether the crewmembers’ course and scope issue is 

resolved in the judicial review suit or the tort litigation, Amerimex will be required to defend 

itself and will be required to carry the same burden of proof. It would be less expensive for 

Amerimex if the crewmembers’ claims were adjudicated with Burchett’s judicial review suit, but 

the legislature has chosen to give employers limited standing. We cannot disregard that decision. 

Amerimex was not aggrieved by a final decision of the appeals panel, and it did not have 

standing to intervene in the judicial review suit between Texas Mutual and Burchett.

V. Conclusion

The petition for writ of mandamus is conditionally granted. The trial court is directed to 

set aside its August 19, 2010 order and to enter an order granting the plea to the jurisdiction 

against Amerimex. The writ will issue only if the trial court fails to act on or before 

December 1, 2010, in accordance with this opinion.

RICK STRANGE

JUSTICE

November 12, 2010

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.