* Pursuant to 5TH CIR. R. 47.5, the court has determined that this

opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. United States Court of Appeals Fifth Circuit 

## FILED November 14, 2006 Charles R. Fulbruge III Clerk UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_______________________ No. 06-40541 Summary Calendar

_______________________ LARRY J. SYNOGROUND, JR., Plaintiff - Counter Claimant - Appellant,

versus GREGORY LOUIS MORVAN, ET AL., Defendants, GREGORY LOUIS MORVAN, Defendant-Appellee HIGHLANDS INSURANCE CO., Intervenor Defendant - Counter Defendant - Appellee On Appeal from the United States District Court

for the Eastern District of Texas Docket No. 2:03-CV-68 Before JONES, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit Judges. PER CURIAM: *

Appellant Larry Synoground appeals the district court’s grant of summary judgment to Appellee Gregory Morvan. He argues that the district court erred in holding that the exclusive remedy provision of the Texas Workers’ Compensation Act bars his tort case2

against Morvan. Synoground also challenges the district court’s conclusion that his acceptance of workers ’ compensation benefits barred his suit against Morvan. Because Synoground’s collection of workers’ compensation benefits precludes him from maintaining an action at common law for damages, the district court’s grant of summary judgment is AFFIRMED. I. BACKGROUND Synoground was injured while riding as a passenger in a vehicle driven by his co-worker, Appellee Gregory Morvan. Both Synoground and Morvan were employees of Key Energy Services, and both were traveling away from the work site to eat lunch. Morvan allegedly caused the car to collide with another vehicle, severely injuring Synoground. Synoground subsequently claimed and accepted workers’ compensation benefits from Key Energy, but he then brought

a common law tort suit against Morvan. The district court granted summary judgment to Morvan because the exclusive remedy provision of the Texas Workers’ Compensation Act prevented Synoground from pursuing his tort action and because Morvan, like Synoground, was in the course and scope of his employment at the time of the accident. Synoground appeals. II. DISCUSSION An employee who claims and collects workers’ compensation benefits is “precluded from maintaining an action at common law against his employer or fellow employees.” Berry v. Gregg Indus.1 The Act states that the “[r]ecovery of workers’ compensation benefits

is the exclusive remedy of an employee . . . against the employer or an agent or employee of the employer for the death or work-related injury sustained by the employee.” TEX. LAB . CODE ANN. § 408.001(a). 3 Servs., Inc. , 907 S.W.2d 4, 5 (Tex. App. 1994); see also Moore v. Means , 549 S.W.2d 417 (Tex. Civ. App. 1977) (“We are of the view that appellants, by proceeding to claim and collect benefits provided under workmens’ compensation policy of insurance provided by the employer . . . are as a matter of law precluded from maintaining an action at common law for damages . . . against a fellow employee.”) (quoting Heibel v. Bermann, 407 S.W.2d 945, 946 (Tex. Civ. App. 1966)); Jones v. Jeffreys , 244 S.W.2d 924, 926 (Tex. Civ. App. 1951). Berry is squarely on point. The plaintiff was injured while returning from a lunch break and riding in the passenger’s seat of a vehicle driven by his co-employee. 907 S.W.2d at 5. After the plaintiff claimed workers’ compensation benefits, he sued his co-worker who was driving the vehicle. The Texas court of appeals held that the plaintiff had “waived his right to proceed at common law for injuries” because he had collected and claimed workers’ compensation benefits. Id.

Synoground’s acceptance of workers’ compensation benefits establishes that both he and Morvan were acting within the course and scope of their employment at the time of the accident. See TEX . LAB . CODE ANN. §§ 406.031, 401.011(12). To avoid the preclusive effect of the Texas Workers’ Compensation Act, 1 however, Synoground

now argues that Morvan acted outside the course and scope of his4

employment, even though both he and Morvan were engaged in the same conduct when the accident occurred. See Darensburg v. Tobey, 887 S.W.2d 84, 87 (Tex. App. 1994). We agree with the district court that Texas law prevents his assertion of these inconsistent positions because his collection of workers’ compensation benefits precludes his common law action against Morvan. See Moore , 549 S.W.2d at 418-19.

Accordingly, the district court’s grant of summary judgment is AFFIRMED.