2018 WL 2976427

United States District Court, S.D. West Virginia,
Charleston Division.
Christopher TOTH, Plaintiff,
v.
A&R LOGISTICS, INC., Defendant.
CIVIL ACTION NO. 2:16-cv-09793
|
Signed 06/12/2018
Attorneys and Law Firms
Amanda J. Taylor, Stacey L. Fragile, Stephen P. New, The Law Office of Stephen P. New, Beckley, WV, D. Blake Carter, Jr., Bucci Bailey & Javins, Charleston, WV, for Plaintiff.
Edward Taylor George, John L. MacCorkle, Michael E. Mullins, MacCorkle Lavender & Sweeney, Charleston, WV, for Defendant.

MEMORANDUM OPINION AND ORDER
THOMAS E. JOHNSTON, CHIEF JUDGE
*1 Pending before the Court is Defendant A&R Logistics, Inc.’s Motion for Summary Judgment. (ECF No. 65.) For the reasons below, the Court DENIES the motion.

I. BACKGROUND
This case arises out of an injury Plaintiff Christopher Toth suffered on April 7, 2014, while operating the bottom hopper valve on the trailer attached to a truck he drove that day during his employment with Defendant. (ECF No. 3-1 at 3–4 ¶¶ 3, 7–8.) According to the Complaint, the valve “kicked back” and caused a serious, permanent injury to Plaintiff’s left arm. (Id. at 4 ¶¶ 7–8.)

Plaintiff originally filed this suit in the Circuit Court of Wood County, West Virginia, on April 7, 2016. (Id. at 3.) The Complaint asserts a single deliberate intent cause of action in violation of West Virginia Code § 23-4-2(d)(2). Plaintiff seeks relief in the forms of general and compensatory damages in addition to future earning capacity, interest, and costs. (Id. at 6.)

Defendant removed the case to this Court on October 17, 2016, asserting diversity jurisdiction as the basis of removal pursuant to 28 U.S.C. § 1332. (ECF No. 3 at 1–2.) Defendant’s summary judgment motion was filed on October 25, 2017. (ECF No. 65.) Plaintiff responded to the motion on November 9, 2017, (ECF No. 69), and Defendant filed a reply on November 16, 2017, (ECF No. 71). As such, the motion is fully briefed and ripe for adjudication.

II. LEGAL STANDARD
Rule 56 of the Federal Rules of Civil Procedure governs motions for summary judgment. This rule provides, in relevant part, that summary judgment should be granted if “there is no genuine issue as to any material fact.” Summary judgment is inappropriate, however, if there exist factual issues that reasonably may be resolved in favor of either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). “Facts are ‘material’ when they might affect the outcome of the case, and a ‘genuine issue’ exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party.” News & Observer Publ. Co. v. Raleigh–Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010). When evaluating such factual issues, the Court must view the evidence “in the light most favorable to the opposing party.” Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970).

The moving party may meet its burden of showing that no genuine issue of fact exists by use of “depositions, answers to interrogatories, answers to requests for admission, and various documents submitted under request for production.” Barwick v. Celotex Corp., 736 F.2d 946, 958 (4th Cir. 1984). Once the moving party has met its burden, the burden shifts to the nonmoving party to “make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If a party fails to make a sufficient showing on one element of that party’s case, the failure of proof “necessarily renders all other facts immaterial.” Id. at 323.

III. DISCUSSION
*2 Plaintiff alleges that Defendant violated West Virginia Code § 23-4-2(d)(2) by “consciously, subjectively and deliberately form[ing] the intention to produce the specific result of the injuries suffered….” (ECF No. 1-1 at 5.) Generally, employees who are injured at their place of work must seek compensation through the West Virginia Workers’ Compensation Act. See W. Va. Code § 23-2-6 (2003); State ex rel. Frazier v. Hrko, 510 S.E.2d 486, 493 n.11 (W. Va. 1998). This legislation serves the dual purposes of allowing an employee to recover even when he is at fault while immunizing employers from civil litigation. “There is an exception to this immunity, however, when the employee’s injury is the result of the employer’s ‘deliberate intention’ to cause that injury.” Helmick v. Potomac Edison Co., 406 S.E.2d 700, 705 (W. Va. 1991).

The standard for “deliberate intention” as codified by West Virginia law at the time of Plaintiff’s injury provides, in pertinent part, the following:
(2) The immunity from suit provided under this section and under section six-a, article two of this chapter may be lost only if the employer or person against whom liability is asserted acted with “deliberate intention”. This requirement may be satisfied only if:
…
(ii) The trier of fact determines, either through specific findings of fact made by the court in a trial without a jury, or through special interrogatories to the jury in a jury trial, that all of the following facts are proven:
(A) That a specific unsafe working condition existed in the workplace which presented a high degree of risk and a strong probability of serious injury or death;
(B) That the employer had a subjective realization and an appreciation of the existence of the specific unsafe working condition and of the high degree of risk and the strong probability of serious injury or death presented by the specific unsafe working condition;
(C) That the specific unsafe working condition was a violation of a state or federal safety statute, rule or regulation, whether cited or not, or of a commonly accepted and well-known safety standard within the industry or business of the employer, which statute, rule, regulation or standard was specifically applicable to the particular work and working condition involved, as contrasted with a statute, rule, regulation or standard generally requiring safe workplaces, equipment or working conditions;
(D) That notwithstanding the existence of the facts set forth in subparagraphs (A) through (C), inclusive, of this paragraph, the employer nevertheless thereafter exposed an employee to the specific unsafe working condition intentionally; and
(E) That the employee exposed suffered serious injury or death as a direct and proximate result of the specific unsafe working condition.
W. Va. Code § 23-4-2(d) (2005).

Success on a deliberate intent claim hinges on the existence of evidence proving all five specific requirements enumerated above in subparagraphs (A) through (E). See Keesee v. Gen. Refuse Serv., Inc., 604 S.E.2d 449, 459 (W. Va. 2004) (citing Syl. pt. 2, Mayles v. Shoney’s, Inc., 405 S.E.2d 15 (W. Va. 1990) ).1 “Thus, in order to withstand a motion for summary judgment, a plaintiff must make a prima facie showing of dispute on each of the five factors.” Marcus v. Holley, 618 S.E.2d 517, 529 (W. Va. 2005) (quoting Mumaw v. U.S. Silica Co., 511 S.E.2d 117, 120 (W. Va. 1998) ).

A. Specific Unsafe Working Condition
*3 Subparagraph (A) “requires proof by the employee of a specific unsafe working condition which presented a high degree of risk and a strong probability of serious injury or death.” McComas v. ACF Indus., 750 S.E.2d 235, 240 (W. Va. 2013). Plaintiff argues that the specific unsafe working condition in this dispute is the “failure to provide mandatory training to a driver prior to sending him on a solo trip to unload a pneumatic trailer.”2 (ECF No. 69 at 22.) This Court has recognized that a failure to provide legally-required training can serve as an unsafe working condition for purposes of the statute at issue. See Skaggs v. Kroger Co./Kroger Ltd. P’Ship I, 788 F. Supp. 2d 501, 506 (S.D. W. Va. 2011) (citing Arnazzi v. Quad/Graphics, Inc., 621 S.E.2d 705, 707 (W. Va. 2005) ).

Plaintiff has submitted testimony supporting the notion that the lack of proper training on how to unload the type of trailer involved in this case presents a high degree of risk and a strong probability of serious injury. For example, Dirk Schulthesis, a former dispatcher for Defendant, testified that the trailer operated by Plaintiff requires specialized training and that serious injury may occur in the absence of proper training. (See ECF No. 69-3 at 2, 4 (“Q…. If a person isn’t properly trained on [the loading and unloading process], they could be exposed to a risk of serious injury or could expose others around them to a risk of serious injury; right? … A. Yes.”), 8 (testifying that, as a former dispatcher, he would not send an untrained employee to drive and unload a trailer by himself because it “would present him a risk of serious injury if he did that”).) Rodney Turner, one of Defendant’s employees who trained individual drivers at the company, also testified that the failure to train employees creates an unsafe working condition and that one purpose of such training is to prevent injuries like Plaintiff’s. (See ECF No. 69-2 at 9, 13 (“Q. Right. And if you don’t know the process fully, you’re not trained on it, you’re at risk of getting hurt…. We’ve established that, right? A. Yeah.”).) The Court notes that neither Mr. Schulthesis nor Mr. Turner appears to be a safety expert. However, their testimonies lend support to the notion that the failure to train individuals on how to unload pneumatic trailers creates a high degree of risk and a strong probability of serious injury. The expert report submitted by Plaintiff and prepared by Samuel T. Daugherty, Safety Specialist and Owner of DCT Safety Solution, also attests to the fact that the failure to train creates an unsafe working condition. (See ECF No. 69-7 at 2 (“Mr. Toth was subjected to an unsafe environment when he was instructed to perform a task that he did not feel comfortable with and was not properly trained to conduct according to manufacturer and industry standards.”).) Based on this, the trier of fact could find for Plaintiff on the first statutory element, and the Court, therefore, finds a genuine issue of material fact as to subparagraph (A). Of course, this element is contingent on proof that the training is legally mandated or required by industry standards, see Skaggs, 788 F. Supp. 2d at 506, which is addressed below.

B. Actual Knowledge
*4 Proving the employer’s “subjective realization and appreciation” of the existence of a specific unsafe working condition, as required by subparagraph (B), “requires an interpretation of the employer’s state of mind, and must ordinarily be shown by circumstantial evidence….” Nutter v. Owens-Illinois, Inc., 550 S.E.2d 398, 403 (W. Va. 2001). The statute does not mandate evidence of “prior similar incidents or complaints,” see id., but even proof that an employer knew of another employee’s previous injury from the same unsafe condition does not necessarily establish this requirement. See McBee v. U.S. Silica Co., 517 S.E.2d 308, 312 (W. Va. 1999). In addition, evidence that “the employer reasonably should have known of the specific unsafe working condition and of the strong probability of serious injury or death presented by that condition” is not enough. See Deskins v. S.W. Jack Drilling Co., 600 S.E.2d 237, 242 (W. Va. 2004) (quoting Syl. pt. 3, Blevins v. Beckley Magnetite, Inc., 408 S.E.2d 385 (W. Va. 1991) ). “Instead, it must be shown that the employer actually possessed such knowledge.” Id.

As evidenced by the testimony outlined above from Mr. Schulthesis and Mr. Turner, Plaintiff’s witnesses state that they understood that the failure to train Defendant’s employees on how to properly unload a pneumatic trailer poses a risk of serious injury. (See ECF No. 69-2 at 9, 13; ECF No. 69-3 at 2, 4, 6–7; see also ECF No. 69-4 (Leonard Dep.) at 3 (“Q. A person with no prior dry bulk goods experience … would require extensive training to learn how to properly and safely do that task; correct? A. Yes. Q. Would an employee be sent out to drive a truck across state lines by himself and to unload a loaded trailer if he had not yet completed his training? A. No.”).) There is also evidence that Defendant knew that Plaintiff was not trained prior to sending him out on the April 7, 2014, out-of-state haul. (See ECF No. 69-4 (Leonard Dep.) at 2 (“Q. Did you ever give [Plaintiff] any type of training? A. No. I mean, … I don’t really recall.”), 4 (“Q. And according to what you see here, he hadn’t finished training had he? A. That’s what this document says.”), 6–7 (“Q. Based upon what you see there, had Chris Toth been fully trained and released to solo duty at that time? A. Not necessarily.”), 11 (“Q. Have you seen any documents, checklists, anything filled out that says ‘I’ve signed off and Chris Toth is safe to be turned loose and run a load by himself?’ A. No.”); see also ECF No. 69-7 at 2 (Daugherty Report) (“Mr. Toth was not properly trained on the specific procedures to properly off-load materials from a pneumatic trailer.”).)

Further, it may be inferred from Mr. Leonard’s testimony that other employees have been sent on out-of-state hauls requiring them to unload a pneumatic trailer even if those employees were not fully trained. (ECF No. 69-4 at 4 (“Q. Would it be your standard practice as the supervisor of the facility to send an individual … who was not yet fully trained … to go unload a trailer? A. That depends. Q. Depends on what? A. On the—if he’s—if he’s available to do the job. If he doesn’t need training….”), 4–5 (“Q…. [W]ould an employee be sent off out of state to go drive a truck by themself and unload a loaded trailer before they’ve had the chance to complete the academy or the course where they’re sent off [for] a week to headquarters? … A. If the trainer has cleared him for—to go.”), 10 (“Q…. Would you, as the boss, have directed somebody to go run a load by themself if you knew they didn’t have the corporate training yet that it says they’re required to have in this document? A. Only if the trainer advised he can do that.”). But see id. at 4 (“A…. [I]f he hasn’t finished training, I wouldn’t send him.).)

Defendant’s motion and reply in support of the motion focus on Defendant’s knowledge about whether the valve that injured Plaintiff presented a risk of serious injury. As stated above, however, the Court understands Plaintiff’s argument to be that the unsafe working condition was Defendant’s failure to train Plaintiff on how to operate the pneumatic trailer at issue. Plaintiff has presented some witness testimony from a facility supervisor, (see ECF No. 69-4 at 4), that a trier of fact may find supportive of the position that Defendant had actual, subjective knowledge that failing to train its employees on how to properly unload a pneumatic trailer created an unsafe working condition. Cf. Bell v. Vecellio & Grogan, Inc., 447 S.E.2d 269, 274–75 (W. Va. 1994) (finding that subparagraph (B) was satisfied where, in part, “supervisory personnel was well aware” of the unsafe working condition); see also Coleman Estate ex rel. Coleman v. R.M. Logging, Inc., 700 S.E.2d 168, 177 (W. Va. 2010) (“Although the Plaintiffs’ evidence [of the employer’s subjective knowledge] is circumstantial rather than direct, we have recognized that states of mind must often be proved by circumstantial evidence.”). Viewing the facts in the light most favorable to Plaintiff, as the Court must do at this juncture, see Adickes, 398 U.S. at 157, the Court finds a genuine dispute of material fact regarding whether Defendant had specific knowledge of the unsafe working condition at issue here.

C. Violation of Industry Standard
*5 In its simplest form, subparagraph (C) can be divided into the following two requirements:
First, the specific unsafe working condition must have been a violation of either (1) a state safety statute, rule or regulation, (2) a federal safety statute, rule or regulation, or (3) “a commonly accepted and well-known safety standard within the industry or business of the employer, as demonstrated by competent evidence of written standards or guidelines which reflect a consensus safety standard in the industry or business.” Second, such statute, rule, regulation, or standard must have been “specifically applicable to the particular work and working condition involved,” as opposed to “generally requiring safe workplaces, equipment or working conditions.”
Bevins v. Apogee Coal Co., LLC, No. 2:13–cv–24264, 2014 WL 7236415, at *3 (S.D. W. Va. Dec. 17, 2014) (quoting W. Va. Code § 23-4-2(d)(2)(ii)(C) ), aff’d, 635 Fed.Appx. 117 (4th Cir. 2016).

Without evidence that the employer violated any state or federal safety statute, rule, or regulation or well-known industry standard, subparagraph (C) of the statute will not be satisfied. See Handley, 620 F. Supp. at 438–39, 442–43. A showing that the employer violated statutes or regulations generally requiring safe workplaces is insufficient to establish this element. See Tolley v. ACF Indus., Inc., 575 S.E.2d 158, 167 (W. Va. 2002). Rather, “the statute or standard must specifically address the unsafe working condition in question.” Greene v. Carolina Freight Carriers, 663 F. Supp. 112, 115 (S.D. W. Va. 1987) (emphasis in original) (providing that the purpose of this requirement is “[t]o put the employer on notice, and to evidence its egregious conduct”); see also Bennett v. Kroger Co., No. 97-1938, 1998 WL 398823, at *2 (4th Cir. Jun. 15, 1998) (per curiam) (unpublished opinion) (finding general safety regulations applicable to “all permanent places of employment” were insufficient to satisfy the third element of an deliberate intent action). In analyzing a cited regulation that was allegedly violated, the West Virginia Supreme Court of Appeals (“WVSCA”) focuses on whether that regulation imposes an “affirmative duty” on the employer as opposed to constituting a mere “general safety requirement.” See McComas, 750 S.E.2d at 241 (citing Ryan v. Clonch Indus., Inc., 619 S.E.2d 756, 763 (W. Va. 2006) ); see also Smith v. Metso Paper USA, Inc., No. 1:13CV266, 2014 WL 1404727, at *4 (N.D. W. Va. Apr. 10, 2014) (applying McComas to conclude that the use of the word “shall” in the cited regulation, which was “aimed specifically at the tiered stacking of materials,” imposed an affirmative duty on the employer).

Again, the alleged specific unsafe working condition at issue here is the failure to properly train Plaintiff and other employees on how to unload a pneumatic trailer. Thus, in order to satisfy subparagraph (C), the failure to train employees on how to properly unload a pneumatic trailer must violate a specifically applicable state or federal statute, rule, or regulation or industry safety standard. While the Complaint does not provide a specific statute, rule, regulation, or standard that allegedly was violated by a failure to train,3 Plaintiff argues in the briefing that the alleged unsafe working condition was a violation of an industry standard—specifically, American National Standards Institute, American Society of Safety Engineers (“ANSI/ASSE”) Z490.1-2009.4 (See ECF No. 69 at 10–12 (stating that this standard “sets forth ‘criteria for accepted practices in safety, health, and environmental training’ ”).) Based on the legal standard provided by Federal Rule of Civil Procedure 56, the Court will limit the analysis to Plaintiff’s allegations in his response.

*6 According to Plaintiff and his expert, Mr. Daugherty,5 ANSI/ASSE Z490.1-2009 is “specifically applicable to the task of unloading a pneumatic trailer” within the trucking industry as evidenced by the following passage:
Quality training is required to ensure that workers and safety, health, and environmental professionals have the knowledge, skills, and abilities necessary to protect themselves and others in the workplace…. This Standard covers all facets of training, including training development, delivery, evaluation, and management of training and training programs.6
(ECF No. 69 at 11–12 (indicating that this language is included in the standard’s “Foreword” section); see also ECF No. 69-7 at 3–4.) As far as quality training is concerned, the cited standard states as follows:
[A training program] shall, at a minimum include … program documentation and record keeping [and] a written training program plan document how the above elements will be accomplished. [The] training program shall be planned and implemented to ensure that … adequate information is maintained to provide a history of training events and trainee completion…. Criteria for completing a training course or event shall be [e]stablished by the training provider in advance of any training event. These criteria shall be uniformly adhered to in all training event[s]. Criteria for completion shall indicate test scores or similar qualitative measures of success, including requirements for minimum attendance or participation…. Observation of performance shall be used when necessary to verify that the trainee can demonstrate the targeted skills or abilities under actual work conditions.
(ECF No. 69 at 12 (second and third alterations in original) (alterations omitted) (emphasis in original).) Lastly, Mr. Daugherty’s report touches on the following requirements from the standard regarding how training must be delivered to employees:

*7 The training program shall, at a minimum, include the following elements:
Training development, including needs assessment, learning objectives, course content and format, resource material, and criteria for course completion. (ANSI/ASSE Z490.1-2009 3.2)
…
Multiple delivery methods may be used in a single training course or event. The training provider should consider a variety of methods, including but not limited to on-the-job training, lecture, computer based training, discussion, classroom exercises, demonstrations, guided practice, activity-based interactive group(s), and distance learning.
(ECF No. 69-7 (emphasis omitted) (quoting ANSI/ASSE Z490.1-2009).)

Defendant argues that this industry standard does not meet the specificity requirement of subparagraph (C) because “[i]t is nothing more than a generalized description of what a training program should be.” (ECF No. 66 at 13–14 (“It contains nothing which is applicable to the operation of dry bulk trailers or anything else remotely part of this accident.”).) Defendant further avers that the Court should ignore Plaintiff and his expert’s reliance on ANSI/ASSE Z490.1-2009 as the alleged industry standard because Mr. Daugherty’s Rule 26(a)(2) report and deposition appear to rely only on 29 U.S.C. § 654(a) as the standard at issue, which Mr. Daugherty later conceded is simply a general Occupational Safety and Health Administration standard. (ECF No. 71 at 2.)

Notwithstanding Defendant’s belief that the Court should ignore ANSI/ASSE Z490.1-2009 in its analysis of subparagraph (C) because Plaintiff did not raise it until the response, Defendant relies on Skaggs and Arnazzi to support its argument that the standard does not satisfy the statutory element at issue. (See id. at 3–4 (citing Skaggs, 788 F. Supp. 2d at 506; Arnazzi, 621 S.E.2d at 705).) The Court does not find those cases as persuasive. The regulations allegedly violated in Skaggs and Arnazzi indeed specifically mandated certain training that employees must undergo before operating a pallet jack and a forklift, respectively, which led to the plaintiffs’ injuries. However, the courts’ rationales did not foreclose the possibility that regulatory training requirements applying to a broader set of skills or industry—as opposed to the operation of a specific machine—may nonetheless satisfy subparagraph (C). Under Defendant’s line of argument, Plaintiff could only succeed under his failure to train theory if he proffered a regulation or industry standard that specifically mandates the way in which employers train employees on how to operate a pneumatic trailer. The statute and case law are strict but not so demanding. The other cases relied upon by Defendant do not analyze regulations mandating training but rather regulations requiring employers to maintain safe and proper operating conditions as to certain machinery, and, thus, the Court finds them easily distinguishable.

Viewing the facts in the light most favorable to Plaintiff, the Court finds that Plaintiff has provided adequate evidence through an expert’s report to show that the failure to train him was a violation of a commonly accepted and well-known safety standard within the trucking industry. Cf. Walton, 2017 WL 5196643, at *8–9.7 Defendant contests Plaintiff’s position that the standard is specifically related to the work Plaintiff was performing at the time of the accident. Plaintiff was operating a pneumatic trailer when he was injured, which was within the scope of his duties as a driver for Defendant, a trucking company. Mr. Daugherty wrote in his report that ANSI/ASSE Z490.1-2009 is “applicable to all federal governing regulatory agencies or administrations” and that “OSHA regulations govern the safety and health of the workers and the responsibilities of employers to ensure their safety … in other places truckers go to deliver and pick up loads throughout the country.” (ECF No. 69-7 at 4 (“OSHA has jurisdiction over off-highway loading and unloading….”).) Defendant argues that ANSI/ASSE Z490.1-2009 is not a specific enough regulation because it “does not in any way discuss the trucking industry….” (ECF No. 71 at 6.) However, if the standard does in fact direct the way in which employers in the trucking industry train their employees, as Plaintiff argues, it specifically addresses the alleged unsafe working condition in question here. See Greene, 663 F. Supp. at 115. The standard does not appear to be a general safety regulation applicable to “all permanent places of employment.” See Bennett, 1998 WL 398823, at *2; see also Tolley, 575 S.E.2d at 167. Its language, quoted by Plaintiff and his expert, indicates that it imposes an “affirmative duty” on Defendant and similarly situated employers. See McComas, 750 S.E.2d at 241; see also Smith, 2014 WL 1404727, at *4. Given Plaintiff’s expert report and Defendant’s opposition to the report’s conclusion about the alleged industry standard, there is a genuine dispute of material fact with regard to subparagraph (C).

D. Intentional Exposure
*8 To satisfy subparagraph (D), there “must be some evidence that, with conscious awareness of the unsafe working condition …, an employee was directed to continue working in that same harmful environment.” Tolley, 575 S.E.2d at 168. The Court notes that as explained above, there is a dispute of material fact regarding whether Defendant had actual knowledge of the unsafe working condition—the failure to train. It will be assumed for purposes of this subparagraph that Defendant had conscious awareness that Plaintiff was not properly trained how to operate the pneumatic trailer by which he was injured.

Defendant’s motion and reply focus on the fact that Plaintiff has not presented evidence that Defendant knew that the trailer’s valve could kick back in the way it did when it injured Plaintiff. (ECF No. 66 at 18; ECF No. 71 at 11.) A faulty valve is not the alleged unsafe working condition, however. The unsafe working condition is the failure to train Plaintiff knowing that the failure to train individuals on how to unload pneumatic trailers creates a high degree of risk and a strong probability of serious injury. Thus, the Court does not agree that Defendant must have had knowledge that an arm injury was imminent or that the trailer’s valve could kick back and injure someone. (Cf. ECF No. 69-2 at 4 (Turner Dep.) (“Q. Would you agree with me that one of the hazards that exists to a worker would be the potential for injury during loading or unloading to the hands, arms, legs, or face? A. Yes.”).) To satisfy this element, Plaintiff must show that Defendant knew that Plaintiff was not trained on how to operate a pneumatic trailer and that Defendant nonetheless directed Plaintiff to go on an out-of-state haul and unload the trailer at the destination.

As noted above Rodney Turner provided testimony supporting the argument that Plaintiff was not properly trained. (See ECF No. 69-2 at 7 (providing that Plaintiff was not fully trained the day of the accident).) Mr. Turner further stated in his deposition that despite that lack of training, Plaintiff was directed to go out on his own to perform an out-of-state haul. Mr. Turner testified as follows:
Q. Somebody at the company made the decision to send him off on his own—correct?—on the day of April 7th?
…
A. Yes.
…
Q. Okay. You agree with me that all those things he was required to be trained and instructed on before he’s turned loose, the company failed to provide him that training before he was sent off on April 7th; correct?
…
A. Yes.
(Id. at 9.) It is undisputed that Defendant directed Plaintiff to complete an out-of-state haul by himself on April 7, 2014. That fact, combined with the assumption that Defendant knew about the alleged unsafe working condition and that Plaintiff was not properly trained at the time of his injury, supports a finding that Defendant intentionally exposed Plaintiff to the unsafe working condition. However, Defendant argues that it did not intentionally expose Plaintiff to any unsafe working condition, which leads to the conclusion that there is a dispute of material fact as to subparagraph (D).

E. Proximate Cause
The final subparagraph of the deliberate intent analysis requires evidence that Plaintiff “suffered serious compensable injury … as a direct and proximate result of the specific unsafe working condition.” W. Va. Code § 23-4-2(d)(2)(ii)(E). This proximate cause requirement is statutory, but “proximate cause” itself is defined pursuant to the common law as adopted by the WVSCA. That court has held that “[t]he proximate cause of an event is that cause which in actual sequence, unbroken by any independent cause, produces the event and without which the event would not have occurred.” Tolley v. Carboline Co., 617 S.E.2d 508, 512 (W. Va. 2005) (quoting Johnson v. Mays, 447 S.E.2d 563, 568 (W. Va. 1994) ). The WVSCA in Arnazzi noted that “[i]t is well established in West Virginia that ordinarily the issue of proximate cause is a jury question to be decided based upon the totality of the evidence.” 621 S.E.2d at 708. Proximate cause becomes an issue for a jury’s determination “when the evidence pertaining to [it] is conflicting or where the facts, even though undisputed, are such that reasonable men may draw different conclusions from them.” Id. (quoting Syl. pt. 7, Stewart v. George, 607 S.E.2d 394 (W. Va. 2004) ). In determining that this issue was one to be decided by the trier of fact, the Arnazzi Court narrowed the question for situations like this when a plaintiff’s injury allegedly was the result of an employer’s failure to train. Id. at 708–09 & n.5 (“[T]he finder of fact must look at the nature of the training and the accident or injury and determine if there is a proximately causal connection.”).

*9 As a preliminary matter, it is undisputed that Plaintiff suffered a serious injury while on the job. The dispute is whether the failure to train Plaintiff directly and proximately caused that injury. Again, Mr. Turner testified that one of the hazards an employee is exposed to when unloading a pneumatic trailer without full training is an arm injury. (See ECF No. 69-2 at 4.) While Turner does not reference the trailer’s valve that kicked back or the likelihood of its occurrence, his testimony lends support to a finding that a lack of training may directly result in an arm injury, which is exactly what Plaintiff suffered. Defendant, to the contrary, argues that there is “absolutely no evidence” to support a finding of proximate cause. (ECF No. 66 at 18 (emphasis in original); see also ECF No. 66 at 10 (arguing that Plaintiff has not shown that any potential training would have prevented his injury); ECF No. 69-7 (Daugherty Report) at 7 (concluding that Plaintiff’s injury was the “direct and proximate result” of Defendant’s failure to train him).) Despite Defendant’s assertion, reasonable persons may differ as to whether Mr. Turner’s testimony and Mr. Daugherty’s report support the causation element, and the trier of fact should have the opportunity to take into consideration the totality of the evidence in determining this issue. Cf. Arnazzi, 621 S.E.2d at 708–09 & n.5. Thus, viewing the evidence in the proper light, the Court finds a genuine dispute of material fact with regard to subparagraph (E) of the statute.

IV. CONCLUSION
For the reasons stated above, Defendant’s Motion for Summary Judgment, (ECF No. 65), is DENIED.

IT IS SO ORDERED.

All Citations
Slip Copy, 2018 WL 2976427

Footnotes

1
See also Master Mech. Insulation, Inc. v. Simmons, 753 S.E.2d 79, 86 (W. Va. 2013); Syl. pt. 5, Deskins v. S.W. Jack Drilling Co., 600 S.E.2d 237 (W. Va. 2004) (quoting Syl. pt. 3, Blevins v. Beckley Magnetite, Inc., 408 S.E.2d 385 (W. Va. 1991) ).

2
The Court notes that the Complaint appears to allege that the unsafe working condition is the operation of the unloading valve, which directly caused the injury. (See ECF No. 1-1 at 4 ¶ 8.) However, Plaintiff’s response to the pending motion focuses on his allegation that Defendant failed to properly train him. (See ECF No. 69 at 12, 22.) In light of Plaintiff’s response to the dispositive motion, the Court will consider the failure to train as the alleged unsafe working condition. Cf. Walton v. Baker Hughes Oilfield Operations, Inc., No. 1:16CV141, 2017 WL 5196643, at *6 (N.D. W. Va. Nov. 9, 2017) (“Given that Walton bears the burden at this stage to establish each element, the Court defers to his description of the allegedly unsafe condition.” (internal citations omitted) ); Bevins, 2014 WL 7236415, at *4.

3
In the Complaint, Plaintiff tracks the statute’s language and generally alleges that “[t]he specific unsafe working condition was a violation of a state or federal safety statute, rule or regulation, whether cited or not, or of a commonly accepted and well known safety standard within the industry or business of the employer.” (ECF No. 3-1 at 5 ¶ 12(iii).)

4
Plaintiff also appears to allude to a violation of Occupational Safety and Health Administration (“OSHA”) standards in the response, but he does not cite a specific OSHA rule that was allegedly broken. Nevertheless, because the Court finds that there is a dispute of material fact regarding whether ANSI/ASSE Z490.1-2009 is “a commonly accepted and well-known safety standard” within the trucking industry and specifically applicable to the operation of a pneumatic trailer, see Bevins, 2014 WL 7236415, at *3, the Court will focus on that single standard.

5
Almost five months after the pending dispositive motion became ripe, Defendant filed a Motion in Limine to Limit Testimony of Plaintiff’s Expert Witness Samuel T. Daugherty. (ECF No. 81.) In that motion in limine, Defendant challenges for the first time Mr. Daugherty’s qualifications and the reliability of his opinions, labeling him as “nothing more than a lay witness in disguise.” (Id. at 5.) Attached to the motion is a full transcript of Mr. Daugherty’s deposition, which Defendant argues precludes Mr. Daugherty from being qualified as an expert under the standards provided by Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). In opposition, Plaintiff argues that Mr. Daugherty’s experience renders him “qualified to offer his expert opinion that Defendant violated consensus safety standards in the trucking industry, as well as applicable [OSHA] and [ANSI/ASSE] standards which are applicable in the commercial trucking industry.” (ECF No. 88 at 2.) The Court finds it prudent to briefly address this issue.
Federal Rule of Evidence 702 confers on a district court the discretion to admit testimony from expert witnesses based on the following standard:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
Fed. R. Evid. 702. The Fourth Circuit has noted that, under this evidentiary rule, “an expert must have either knowledge skill, experience, training, or education. These are disjunctive; an expert can qualify to testify on any one of the grounds.” Cooper v. Lab. Corp. of Am. Holdings, Inc., 150 F.3d 376, 380–81 (4th Cir. 1998) (citing Kopf v. Skyrm, 993 F.2d 374, 377 (4th Cir. 1993) ). The district court only acts as a “gatekeeper” and does not consider whether the offered opinion is correct. See Certain Underwriters at Lloyd’s, London v. Sinkovich, 232 F.3d 200, 203 (4th Cir. 2000) (citation omitted) (noting that a court should be concerned only with whether “an expert witness … possess[es] some specialized knowledge or skill or education that is not in possession of the jurors”).
The Court has considered the parties’ arguments relative to the motion in limine and remains mindful that its role is to act only as a gatekeeper to ensure Mr. Daugherty is qualified and that his testimony would be useful, relevant, and reliable to the trier of fact. After considering the proffered expert report and reviewing Mr. Daugherty’s deposition and curriculum vitae, the Court finds that, at this stage of the litigation, Mr. Daugherty is minimally qualified to offer an opinion in the area of employee training within the commercial trucking industry. The strength of Mr. Daugherty’s conclusions and his credibility, of course, will be issues for the jury’s consideration. Consistent with this finding, the Court will take into account the expert report attached to Plaintiff’s response to the pending summary judgment motion, (ECF No. 69-7).

6
The Court notes that a copy of the standard itself is not included on the record, and the parties do not provide a citation allowing the Court to independently verify the quoted language.

7
The Court notes that the parties in Walton did not dispute that ANSI/ASSE Z49.1-2009 is a commonly accepted standard within the oil and gas extraction industry for purposes of W. Va. Code § 23-4-2(d)(2)(ii)(C). Nevertheless, the court in Walton determined that a dispute of material fact regarding whether the plaintiff was provided with industry-mandated training precluded a finding in favor of the defendant on this element.

2018 WL 2750567

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
Supreme Court of Texas.
WAUSAU UNDERWRITERS INSURANCE COMPANY, Petitioner,
v.
James WEDEL and Michelle Wedel, Respondents
No. 17–0462
|
Argued March 1, 2018
|
Opinion Delivered: June 8, 2018
Synopsis
Background: Workers’ compensation claimant sought declaration that workers’ compensation carrier waived its right of subrogation against proceeds recoverable from third-party for claimant’s injuries, including carrier’s right to receive reimbursement from claimant. The 205th District Court, El Paso County, Francisco X. Dominguez, 2015 WL 12746133, denied carrier’s plea to the jurisdiction and motion to dismiss and granted summary judgment in favor of claimant. Carrier appealed. The El Paso Court of Appeals, 518 S.W.3d 615, affirmed. Carrier filed petition for review.

[Holding:] The Supreme Court, Brown, J., held that policy precluded carrier’s recovery from any settlement third party paid to claimant.

Affirmed.

Johnson, J., filed dissenting opinion in which Boyd, J., joined.

West Headnotes (5)

[1]
Workers’ Compensation
Rights of Employer or Insurer

In most cases, until the workers’ compensation carrier is paid in full, the employee or his representatives have no right to any funds from a liable third party. Tex. Labor Code Ann. § 417.001.
Cases that cite this headnote

[2]
Declaratory Judgment
Scope and extent of review in general

A declaratory judgment granted on a traditional motion for summary judgment is reviewed de novo.
Cases that cite this headnote

[3]
Insurance
Language of policies

When construing an insurance policy, a court ordinarily ascertains and gives effect to the parties’ intent as expressed by the words they chose to effectuate their agreement.
Cases that cite this headnote

[4]
Insurance
Intention

Where insurance policy forms are mandated by a state regulatory agency, the actual intent of the parties is not material.
Cases that cite this headnote

[5]
Workers’ Compensation
Rights of Employer or Insurer

Workers’ compensation policy that included endorsement waiving carrier’s right to recover from third party sued by claimant precluded carrier’s recovery from any settlement third party paid to claimant; effort to collect from settlement proceeds was an attempt to enforce right that carrier had contractually waived.
Cases that cite this headnote

ON PETITION FOR REVIEW FROM THE COURT OF APPEALS FOR THE EIGHTH DISTRICT OF TEXAS
Attorneys and Law Firms
David L. Plaut, Jeffrey C. Glass, Hanna & Plaut, L.L.P., Austin, TX, for Petitioner.
G. Alan Waldrop, Paul M. Terrill III, Ryan D. Greene, Terrill & Waldrop, PLLC, Austin, TX, Jason M. Medina, Kevin T. Glasheen, Glasheen Valles & Inderman, LLP, Lubbock, TX, for Respondents.
Peter M. Kelly, Kelly Durham & Pittard, LLP, Houston, TX, Glenn W. Cunningham, Houston, TX, for Amicus Curiae Texas Trial Lawyers Association.
Jackie M. Kenyon, Mary Barrow Nichols, Texas Mutual Insurance Co., Mary A. Keeney, Graves Dougherty Hearon & Moody, P.C., Austin, TX, for Amicus Curiae Texas Mutual Insurance Company.
Loren R. Smith, Kelly, Smith & Red, P.C., Houston, TX, for Amicus Curiae Insurance Company of the State of Pennsylvania.
David M. Gunn, Beck Redden LLP, Houston, TX, for Amicus Curiae Exxon Mobil Corporation.
Opinion

Justice Brown delivered the opinion of the Court, in which Chief Justice Hecht, Justice Green, Justice Guzman, Justice Lehrmann, Justice Devine, and Justice Blacklock joined.

*1 The workers’-compensation carrier in this case paid benefits to an injured employee. It later sought reimbursement of those payments from any settlement proceeds the employee might receive from an allegedly liable third party. Ordinarily, Texas law grants it that right. But the policy in this case includes an endorsement waiving the carrier’s right to recover from the third party sued by the employee. The carrier concedes it can’t recover directly from the third party but insists it can recover indirectly from any settlement the third party pays to the employee. Standing on over twenty years of unanimous case law to the contrary, as well as Texas Department of Insurance rulings consistent with that case law, we disagree. The carrier signed away its right to recover benefits it paid to the employee and received a higher premium in exchange for assuming that risk. It cannot now seek to indirectly recover the same proceeds it agreed not to pursue directly. We affirm the court of appeals’ judgment.

I
James Wedel, a truck driver for Cactus Transport, Inc., was injured on the job. The accident occurred while he was loading asphalt at a terminal owned by Western Refining Company, L.P. Wedel received workers’-compensation benefits from Cactus’s insurance carrier, Wausau Underwriters Insurance Company (Underwriters). But he separately sued Western Refining for alleged negligence contributing to his accident.

To gain access to its terminals, Western Refining required Cactus to furnish workers’-compensation coverage to its employees. Western Refining also mandated that Cactus’s workers’-compensation policy “contain a waiver of subrogation rights” against Western Refining. The parties agree this meant the policy must include a waiver of Underwriters’ right to seek reimbursement directly from Western Refining for benefits Underwriters paid under Cactus’s policy. It is also undisputed that Cactus paid a higher premium in exchange for Underwriters’ assumption of that risk.

Underwriters nonetheless intervened in Wedel’s lawsuit against Western Refining, asserting subrogation rights against it for past and future medical expenses and indemnity payments. Relying on the policy’s subrogation waiver, Western Refining argued Underwriters had no right to recover. Underwriters later non-suited its intervention. Wedel and Western Refining then began settlement negotiations but reached an impasse when Underwriters announced it would seek reimbursement from any settlement paid to Wedel. Wedel then joined Underwriters as a third-party defendant. He moved for summary judgment declaring Underwriters had waived its right to recover any proceeds from the lawsuit, whether directly from Western Refining or indirectly from Wedel’s recovery from Western Refining. The trial court granted summary judgment for Wedel. The court of appeals affirmed, concluding Wedel established that Underwriters “contractually waived its statutory right of subrogation and this waiver encompasses the right of reimbursement [against the employee] as well.” 518 S.W.3d 615, 630 (Tex. App.—El Paso 2017). We agree and affirm the court of appeals’ judgment.

II
*2 [1]In most cases, workers’-compensation benefits are the exclusive remedy against a workers’-compensation subscribing employer for on-the-job injuries. See TEX. LAB. CODE 408.001(a); Port Elevator–Brownsville, L.L.C. v. Casados, 358 S.W.3d 238, 241 (Tex. 2012). But an employee may still seek damages from a liable third party in addition to receiving workers’-compensation benefits. See TEX. LAB. CODE § 417.001(a); State Office of Risk Mgmt. v. Carty, 436 S.W.3d 298, 302 (Tex. 2014). Similarly, a workers’-compensation 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.” TEX. LAB. CODE § 417.001(b). Under either scenario, 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.” Id. § 417.002(a). The upshot of these provisions is that “until the carrier ‘is paid in full[,] the employee or his representatives have no right to any funds.’ ” Tex. Mut. Ins. Co. v. Ledbetter, 251 S.W.3d 31, 33 & n.1 (Tex. 2008) (quoting Argonaut Ins. Co. v. Baker, 87 S.W.3d 526, 530 (Tex. 2002) ).

The policy in this case included a standard endorsement promulgated by the Texas Department of Insurance (the department). The parties call it a “subrogation waiver.” See TEX. DEP’T OF INS., TEXAS WORKERS’ COMPENSATION AND EMPLOYERS’ LIABILITY MANUAL: WC 42 03 04 A (2d reprt. 2011). It reads as follows:
TEXAS WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT
…
We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule [Western Refining], but this waiver applies only with respect to bodily injury arising out of the operations described in the Schedule where you are required by a written contract to obtain this waiver from us.
This endorsement shall not operate directly or indirectly to benefit anyone not named in the schedule.
…
The premium charge for this endorsement shall be 2 percent of the premium developed on payroll in connection with work performed for the above person(s) or organization(s) arising out of the operations described.

Underwriters argues this waiver (1) forecloses only its right to pursue reimbursement directly from Western Refining but (2) leaves intact its right to pursue reimbursement from an employee’s recovery against the same. Moreover, construing the waiver to insulate an employee would violate the waiver’s proviso that it not “operate directly or indirectly to benefit anyone not named in the schedule.” Taken as a whole, Underwriters contends, the provision can be interpreted only to waive its “subrogation right” against Western Refining, a right Underwriters considers statutorily distinct from its “reimbursement right” against the employee.

Wedel insists the waiver also bars Underwriters’ right to reimbursement from any proceeds he recovers from Western Refining. The waiver relinquishes Underwriters’ “right to recover” from Western Refining, which includes direct recovery from Western Refining or indirect recovery from funds it pays to Wedel. Either way, Wedel argues, the proceeds constitute a recovery from Western Refining even if they first pass through him. Wedel further points out that this is the only waiver of subrogation rights the department has approved for use in Texas. And every court that has interpreted it has concluded that it waives a carrier’s right to reimbursement from an injured employee’s recovery. He also maintains that Underwriters’ interpretation of the waiver frustrates the rationale for paying a higher premium for the waiver. The practical effect of Underwriters’ reading of the waiver, Wedel claims, would be that he could settle with Western Refining for only an amount that would satisfy Underwriters’ eventual reimbursement claim against him. This scenario effectively forces the third party to reimburse the carrier, which is exactly what the employer paid a higher premium to avoid.

*3 [2] [3] [4]“A declaratory judgment granted on a traditional motion for summary judgment is reviewed de novo.” Kachina Pipeline Co. v. Lillis, 471 S.W.3d 445, 449 (Tex. 2015). When construing an insurance policy, we ordinarily “ascertain and give effect to the parties’ intent as expressed by the words they chose to effectuate their agreement.” In re Deepwater Horizon, 470 S.W.3d 452, 464 (Tex. 2015). But because the waiver at issue here was not freely negotiated by the parties, this is no ordinary policy. Rather, it is a standard endorsement the department has promulgated and mandated for use in Texas workers’-compensation policies. See TEX. LAB. CODE § 406.051(b) (“The contract for coverage must be written on a policy and endorsements approved by the Texas Department of Insurance.”). And “where the policy forms are mandated by a state regulatory agency, the actual intent of the parties is not material.” Progressive Cty. Mut. Ins. Co. v. Sink, 107 S.W.3d 547, 551 (Tex. 2003). “As a practical matter, the actual intent involved in the precise words is as much or more the intent of the [agency] which prescribes the wording of the policy as it is the intent of the parties.” Id. (quoting United States Ins. Co. of Waco v. Boyer, 153 Tex. 415, 269 S.W.2d 340, 341 (1954) ).

We are not provided any guidance on the department’s intent in drafting the waiver, but we can glean insight from its actions since promulgating the waiver. First, the department has kept the form substantively the same in the face of more than twenty years of case law unanimously interpreting it to foreclose recovery from proceeds paid to an injured employee. See Hartford Accident & Indem. Co. v. Buckland, 882 S.W.2d 440, 445 (Tex. App.—Dallas 1994, writ denied); Lumbermens Mut. Cas. Co. v. Carter, 934 S.W.2d 912, 913 (Tex. App.—Beaumont 1996, no writ); Am. Risk Funding Ins. Co. v. Lambert, 59 S.W.3d 254, 259 (Tex. App.—Corpus Christi 2001, pet. denied); Liberty Ins. Corp. v. SM Energy, No. H-12-3092, 2012 WL 6100303, at *7–9 (S.D. Tex. Dec. 7, 2012). In two of these cases—Hartford Accident and Indemnity Co. v. Buckland and Liberty Insurance Corp. v. SM Energy—the opinions quote substantively identical versions of the department’s endorsement at issue in this case. See Buckland, 882 S.W.2d at 441; SM Energy, 2012 WL 6100303, at *2. In light of the unanimity in these decisions, we find it noteworthy, though not dispositive, that the department has not substantively altered the endorsement. If the department believes its endorsement has been misinterpreted, it certainly has had ample time to revise the text and clarify its intent. Instead, two recent administrative orders the department’s Division of Workers’ Compensation benefit-review officers have issued construing the waiver reflect an interpretation consistent with unanimous judicial precedent. TEX. DEP’T OF INS., Decision and Order, Docket No. HE–10324483–02–CC–HI043 (Apr. 21, 2014) (“Carrier waived its right to reimbursement and/or subrogation under Texas Labor Code § 417.001 and § 417.002.”); TEX. DEP’T OF INS., Decision and Order, Docket No. HW–11293057–01–CC–HW42 (Mar. 29, 2016) (“Carrier contractually waived its statutory right to subrogation as to the workers’ compensation benefits paid to the Claimant, which include reimbursement for benefits it has paid or credit for benefits it will pay in the future.”).

[5]The courts’ and the department’s interpretations are consistent with the endorsement’s plain language. The endorsement is titled “Texas Waiver of Right to Recover from Others Endorsement” and provides that a carrier that agrees to the endorsement waives its “right to recover.” It then recognizes the carrier’s “right to recover our payments from anyone liable for an injury covered by this policy” but provides that the carrier “will not enforce that right against” the named third party. The question is whether an effort to collect from settlement proceeds that third party pays to an injured employee—an obvious end-around to avoid the waiver—is any less an attempt to “enforce” the right the carrier has contractually waived.

*4 We conclude it is not. Under the endorsement, the waiver of a carrier’s “right to recover” from the third party named in the schedule includes both a direct recovery from the third party and an indirect recovery from proceeds the third party pays to an injured employee. There is no meaningful difference between the two. Under either scenario, the reimbursement the carrier attains flows from the third party. True, the waiver speaks to the carrier’s right to recover from liable third parties, not injured employees. But any settlement the employee receives from the carrier is a recovery from a liable third party. Once paid, the money belongs to the employee, but it did not exist before the third party made the payment to dispose of the employee’s lawsuit. The waiver’s language does not compel us to ignore the source of the proceeds the carrier seeks to capture simply because they flowed through the employee.

Both Underwriters and the dissent argue, however, that we must read the endorsement in light of the separate and distinct rights of a workers’-compensation carrier to “subrogation” and “reimbursement” found in Labor Code sections 417.001 and 417.002—the former being the carrier’s ability to “enforce the liability of the third party in the name of the injured employee,” see TEX. LAB. CODE § 417.001(b), and the latter being the statutory mandate that the “net amount recovered by a claimant in a third-party action shall be used to reimburse the insurance carrier,” see TEX. LAB. CODE § 417.002(a). Considered against this statutory backdrop, Underwriters and the dissent contend the endorsement addresses only a carrier’s subrogation interest, not its statutory right to recover proceeds from an injured employee who settles.

Courts that have considered the distinction in this context—including the court of appeals in this case—have rejected it. See, e.g., Wedel, 518 S.W.3d at 622 (“[I]n construing Sections 417.001 and 417.002, we observe that an insurance carrier’s right of subrogation encompasses the right of reimbursement, and consequently encompasses the right to recover for benefits paid and to a credit against future benefits.”); SM Energy, 2012 WL 6100303, at *8 (“Courts applying Texas law do not distinguish between a carrier’s subrogation and reimbursement rights in the Worker’s Compensation Act context.”); Buckland, 882 S.W.2d at 445 (“[A] carrier’s subrogation interest includes its right to reimbursement as well as its right to future amounts for which it is relieved of liability.”). But even if we accepted the distinction, our reading of the waiver would not change. Although the endorsement may be called, colloquially, a “subrogation waiver,” neither the word “subrogation” nor “reimbursement” actually appears in its text. Whether the two amount to independent statutory rights is a question separate from and unnecessary to interpreting the waiver’s language. The question, as we see it, is simply whether the carrier’s waiver of its “right to recover” against the third party is limited to only a direct recovery against the third party. And we see nothing in the waiver compelling that result.

Moreover, Underwriters’ and the dissent’s reading of the waiver undermines the rationale for having such a waiver in the first place. The carrier requires a higher premium payment on policies that include the waiver. Why? Because the carrier is giving up the right to seek reimbursement from a liable third party if it has to pay workers’-compensation benefits following an accident. If an accident occurs, the carrier is on the hook regardless of fault and cannot proceed directly against the third party. But what if it could sit back and wait for the employee to recover from the third party and then get the same money from him? The practical effect would be that the third party’s cost for resolving the case has increased, likely by the amount it would have had to pay the carrier if there had never been a waiver. The carrier’s pending reimbursement claim will be taken into account during settlement negotiations and influence the amount necessary to dispose of the case.

*5 This is not speculation—it is exactly what happened in this case. Settlement negotiations halted once Underwriters announced its intention to seek reimbursement from those proceeds. Despite the waiver, Underwriters sought the same money through the back door that it could not get through the front. Underwriters’ position drove up the cost of settling the case, with Underwriters poised to claim the same money from Wedel that it could not get from Western Refining. Under these facts, the value of the case is the same as if there had been no waiver at all.

Nor are we persuaded that the waiver’s admonition that it “shall not operate directly or indirectly to benefit anyone not named in the Schedule” allows the carrier to pursue the employee’s settlement. First, if our reading of the waiver benefits the employee at all, it benefits the third party—the one named in the Schedule—more. As explained above, the third party is better off if the carrier cannot recover against the employee, because the third party is then free to negotiate with the employee without a carrier’s pending reimbursement claim driving up the cost to settle. Again, this is the reason for the waiver and the corresponding higher premium in the first place. See Lambert, 59 S.W.3d at 259 (“The third party having the benefit of the waiver is free to negotiate a settlement with the injured employee without having to pay additional to the employee to cover any subrogation of compensation of workers’ compensation benefits.”). In the event of an accident for which it was liable, Western Refining preferred to face only the injured employee rather than both the employee and his employer’s workers’-compensation carrier—and required Cactus to pay a premium for that privilege.

Second, although the employee might on occasion incidentally benefit from the waiver, he benefits less than the third party, if at all. See id. (“The fact the third parties’ settlement amount is lowered doesn’t necessarily mean the employee is benefitted.”). Certainly, a carrier’s claim for reimbursement can drive up the cost of settling an injured employee’s claim. But it does not necessarily follow that the employee will net a smaller recovery; it means only that the injured employee and the settling third party will have to take the carrier’s reimbursement claim into consideration. The liable third party might ultimately pay more overall to satisfy both claims, but this would not necessarily benefit the injured employee. It is conceivable that a third party might be unable to be as generous in settling with an injured employee as it would if it did not have to also satisfy a carrier’s reimbursement claim. But it is also possible that the injured employee would receive the same amount either way. In any event, the possibility that an injured employee might indirectly benefit from the waiver in some cases does not cancel out the fact that the liable third party benefits more in every case that includes a subrogation waiver.

The dissent reads the waiver more narrowly. Its interpretation of the text is not unreasonable, but text is rarely interpreted on a blank slate. As we have mentioned, in this case we interpret the waiver’s language to effect agency intent, and the department has acquiesced in decades of unanimous precedent from our courts of appeals and a federal district court interpreting the waiver as Wedel urges and has affirmed that interpretation in its own administrative rulings. We still must ask if the waiver’s plain language supports that interpretation—the practical fallout of our reading of a policy cannot control the meaning we assign to the text used. But in this case, we see nothing in the waiver’s language that compels us to undercut decades of settled and unanimous precedent, the department’s interpretation of its own waiver, or the allocation-of-risk considerations for using a subrogation wavier—and charging a higher premium for it—in the first place.

*6 * * *
The waiver in this case forecloses Wausau’s right to recover from a liable third party. That includes direct recovery from Western Refining or indirect recovery of the same proceeds after Western Refining pays them to Wedel. The court of appeals’ judgment is affirmed.

Justice Johnson filed a dissenting opinion, in which Justice Boyd joined.

Justice Johnson, joined by Justice Boyd, dissenting.

This case is about an unambiguous endorsement to a workers’ compensation insurance policy. The Court concludes that the endorsement not only waived Wausau Underwriters Insurance Company’s (Wausau) right of subrogation1 as to Western Refining Company, L.P. (Western), but also Wausau’s right of reimbursement from amounts Western paid to Cactus Transport, Inc.’s (Cactus) employee, James Wedel.2 There is a decided and recognized difference between an insurer’s right of subrogation and its right of reimbursement. See Fortis Benefits v. Cantu, 234 S.W.3d 642, 645 (Tex. 2007) (involving a health insurance policy with separate clauses3 addressing the rights of subrogation and reimbursement which “conferred on [insurer] two separate contractual rights of recovery, one styled ‘subrogation’ and one styled ‘reimbursement.’ ”).

I agree that the endorsement waived the statutory subrogation right afforded Wausau by section 417.001 of the Workers’ Compensation Act (Act). See TEX. LAB. CODE § 417.001. But I disagree that the endorsement waived the separate statutory right to reimbursement afforded by section 417.002. Id. § 417.002.

There are several problems with the Court’s position. First, the Act expressly distinguishes between a carrier’s right of subrogation and its right of reimbursement, as demonstrated in part by their being addressed in separate sections of the statute. See id. §§ 417.001, .002. Both are favored and are integral to success of the workers’ compensation system. See, e.g., State Office of Risk Mgmt. v. Carty, 436 S.W.3d 298, 304 (Tex. 2014) (stating that protection of these rights is the “primary purpose” of Labor Code sections 417.001 (subrogation) and 417.002 (reimbursement) ); Tex. Mut. Ins. Co. v. Ledbetter, 251 S.W.3d 31, 35 (Tex. 2008) (stating that first-money reimbursement is crucial to the workers’ compensation system and prevents double recovery by workers). Yet the Court effectively ignores the distinction the statute makes between the two. Second, the endorsement on which Wedel bases his argument was obtained by Wedel’s employer, Cactus, to comply with Western’s written contractual requirement that Cactus’s workers’ compensation policy be endorsed with a waiver of the carrier’s right of subrogation. The requirement was not that the policy be endorsed to waive the carrier’s right to both subrogation and reimbursement. Third, the endorsement to Wausau’s policy, according to its plain, explicit language, only precluded Wausau from “enforc[ing] [its] right” against Western to recover for payments Wausau paid to Cactus’s employees. It did not reference and did not waive Wausau’s right to reimbursement if Cactus’s employees recovered on claims against third parties, such as Western.

I respectfully dissent.

I. Subrogation and Reimbursement in the Act
Texas enacted its first workers’ compensation legislation in 1913. See Act of April 16, 1913, 33rd Leg., R.S., ch. 179, 1913 Tex. Gen. Laws 429, amended by Act of Mar. 28, 1917, 35th Leg., R.S., ch. 103, 1917 Tex. Gen. Laws 269. The Legislature amended the Act in 1917 to provide that an employee injured during the course of employment for an employer that provided workers’ compensation insurance had an election if the injury was caused by a third party: the employee could elect to receive workers’ compensation or pursue a third-party action against the alleged tortfeasor. See Fort Worth Lloyds v. Haygood, 151 Tex. 149, 246 S.W.2d 865, 867 (1952). If the employee elected to receive workers’ compensation, then the carrier was “subrogated to the rights of the injured employ[ee] in so far as may be necessary and may enforce in the name of the injured employ[ee] or of his legal beneficiaries or in its own name and for the joint use and benefit of said employ[ee] or beneficiaries and the [carrier] the liability of said other person.” Id. (quoting Act of Mar. 28, 1917, 35th Leg., R.S., ch. 103, § 6a, 1917 Tex. Gen. Laws 269, 285, repealed by Act of Dec. 11, 1989, 71st Leg., 2nd C.S., ch. 1, § 16.01(10), 1989 Tex. Gen. Laws 1, 114). The Legislature periodically amended the Act. As relevant to this case, the amendments refined provisions regarding the carrier’s being subrogated to the rights of an injured employee4 against third parties liable for the injury and the rights of the injured employee regarding such third parties. See, e.g., Act of Mar. 28, 1917, 35th Leg., R.S., ch. 103, § 6a, 1917 Tex. Gen. Laws 269, 285 (repealed 1989).

In 1993, the Legislature adopted the current Act. TEX. LAB. CODE tit. 5. Section 417.001 of the Act (1) expressly authorizes an injured employee to pursue both workers’ compensation benefits and an action against third parties who caused the injury; (2) expressly provides a right of subrogation to the carrier and gives the carrier the right to enforce its subrogation right in the name of the employee; and (3) provides that if the carrier recovers an amount greater than its subrogation interest from a third party, then after the carrier reimburses itself and pays its costs from the amount recovered, it is to pay the remainder to the employee:
(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 the 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…. If the recovery is for an amount greater than the amount of the insurance carrier’s subrogation interest, the insurance carrier shall:
(1) reimburse itself and pay the costs from the amount recovered; and
(2) pay the remainder of the amount recovered to the injured employee or the legal beneficiary ….
Id. § 417.001 (emphasis added). A separate section of the Act—section 417.002—addresses a carrier’s right of reimbursement in the event an injured employee asserts a claim against a third party because of the injury and makes a recovery. That section requires the employee to reimburse the carrier for benefits the carrier paid to or for the employee’s benefit, but allows the employee to retain the balance subject to the carrier’s right to offset any future benefits by the amount of the balance:
(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.
(b) Any amount recovered that exceeds the amount of the reimbursement required under Subsection (a) shall be treated as an advance against future benefits, including medical benefits, that the claimant is entitled to receive under this subtitle.
(c) If the advance under Subsection (b) is adequate to cover all future benefits, the insurance carrier is not required to resume the payment of benefits. If the advance is insufficient, the insurance carrier shall resume the payment of benefits when the advance is exhausted.
Id. § 417.002 (emphasis added).

Manifestly, the Act distinguishes between the carrier’s right of subrogation and its right of reimbursement—and those are two different rights. See Fortis Benefits, 234 S.W.3d at 645. Section 417.001 expressly grants the carrier a statutory right of subrogation and expressly authorizes the carrier to bring suit directly against a third party to “enforce the liability of the third party” to the injured employee. TEX. LAB. CODE § 417.001. The statute authorizes the carrier to prosecute the subrogation claim in order to recover the benefits it has paid and to offset the benefits it might owe to the employee in the future by any excess recovered by, or on behalf of, the injured employee, regardless of whether the injured employee chooses to pursue a claim against the third party. See id. And if it does so, it is to “reimburse itself and pay the costs from the amount recovered,” then pay the remainder to the injured employee. Id. “Costs” include the carrier’s attorney’s fees. E.g., Jones v. Liberty Mut. Ins. Co., 745 S.W.2d 901, 902 (Tex. 1988).

Section 417.002, on the other hand, separately and expressly gives carriers only the right to receive reimbursement in the event the employee recovers from a third party. See TEX. LAB. CODE § 417.002. Section 417.002 does not empower the carrier to proceed, or even to make claims, against, third parties in order to enforce rights the carrier might have pursuant to the carrier’s payments to and for the employee’s benefit in the past or as to those which the Act would require it to pay in the future. Id. Nor does section 417.002 entitle the carrier to both reimbursement for payments it made to and for the employee’s benefit and recovery of its costs—such as attorney’s fees—out of the recovery from a third party. See id. Thus, if the carrier waives its right to subrogation under section 417.001, section 417.002 still specifically provides the carrier a separate right to reimbursement. But, under such circumstances, section 417.002 effectively relegates the carrier to paying benefits and then waiting on the employee to prosecute a third-party action. If the employee chooses not to do so, or if the employee does not succeed in recovering on a third-party action, then the carrier has no pathway for recovering from a third party for the benefits it paid, or will pay, to the employee. Under section 417.002, it is only if the employee recovers from a liable third party that the carrier has the right to be reimbursed, and even then, the statute does not give the carrier the right to recover its costs in addition to reimbursement for the amounts paid.

In sum, where the carrier has subrogation rights under section 417.001, it is entitled to directly bring and directly participate in suits against third parties. Under that section, the subrogated carrier is in charge of its own destiny as to prosecuting a third-party claim to recoup payments it has made to the injured employee, obtaining credit for those it is obligated to make in the future, and recovering its costs, including attorney’s fees, in addition to reimbursement. When the carrier has only reimbursement rights pursuant to section 417.002, it is neither in charge of its own destiny vis-a-vis prosecuting a third-party claim nor statutorily entitled to recover its costs in addition to the amount it paid, or will pay, to the employee from the amount received from the third party.

So when does the statutory language matter? That is, in which situations does a carrier not have subrogation rights but has only reimbursement rights? As explained below, under the clear, plain language of sections 417.001 and 417.002, this is one such situation.

II. The Terminal Agreement and the Policy Endorsement
Western and Cactus entered into an “Asphalt Terminal Access Agreement” (Terminal Agreement) that required Cactus to carry insurance, including workers’ compensation insurance. As related to this matter, the Terminal Agreement contains the following provision regarding Cactus’s workers’ compensation insurance:
The insurance … shall be ENDORSED to contain a waiver of subrogation against the WESTERN ENTITIES ….
(Emphasis added).

Wausau was the workers’ compensation carrier for Cactus. Pursuant to the Terminal Agreement, Cactus purchased an endorsement to its policy entitled “Texas Waiver of Our Right to Recover from Others Endorsement.” The endorsement provides as follows:
We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule, but this waiver applies only with respect to bodily injury arising out of the operations described in the Schedule where you are required by written contract to obtain this waiver from us.
This endorsement shall not operate directly or indirectly to benefit anyone not named in the Schedule.
The premium for this endorsement is shown in the Schedule.
(Emphasis added). In the Schedule, the endorsement specified that it applied as follows:
(X) Blanket Waiver
Any person or organization for whom the Named Insured has agreed by written contract to furnish this waiver.

As the Court notes, the endorsement is a standard form promulgated by the Texas Department of Insurance (TDI). See TEX. DEP’T OF INS., TEXAS WORKERS’ COMPENSATION AND EMPLOYERS’ LIABILITY MANUAL: WC 42 03 04 A (2d reprt. 2011). There is no dispute that Western and its affiliates (the Western entities) were the entities for which Cactus agreed, by written contract, to obtain an endorsement waiving the insurer’s subrogation rights.

There is also no dispute that Wedel is not listed in the “Schedule” section of the policy. Accordingly, the endorsement expressly excludes him from being benefitted by the endorsement “directly or indirectly.”

III. The Meaning of the Language Is Clear
The Court says that the actual intent of the parties when entering into workers’ compensation contracts in Texas is immaterial because the policy forms are mandated by a state agency. Ante at –––– (citing Progressive Cty. Mut. Ins. Co. v. Sink, 107 S.W.3d 547, 551 (Tex. 2003) ). It also notes that “[i]n construing such forms, we strive to ‘determine the ordinary, everyday meaning of the words to the general public.’ ” Ante at –––– (quoting Progressive Cty. Mut. Ins. Co., 107 S.W.3d at 551). The problem is that the Court does not adhere to this latter statement regarding construing this form.

As related to this controversy, the Terminal Agreement was simple and clear. It required Cactus to maintain workers’ compensation insurance that contained a “waiver of subrogation against the Western Entities,” with “Western Entities” being defined as “Western, its parent, subsidiary and affiliated companies, and their respective officers, agents and employees.” What the contract did not require was waiver of the carrier’s statutory right of reimbursement, as is provided for by section 417.002 of the Act.

The endorsement to Cactus’s policy began by reiterating Wausau’s statutory right to recover payments it made under the policy “from anyone liable for an injury covered by this policy.” In the next sentence, Wausau agreed that it would “not enforce our right against the person or organization named in the Schedule, but this waiver applies only … where you are required by a written contract to obtain this waiver from us.” The endorsement contained no additional language waiving rights as to any other person or entity. And the written contract between Cactus and Western required only that the workers’ compensation policy be endorsed “to contain a waiver of subrogation against the WESTERN ENTITIES.”

The Court concludes that “the waiver of a carrier’s ‘right to recover’ from a third party named in the schedule includes both a direct recovery from [Western] and an indirect recovery from proceeds paid by [Western] to an injured employee,” such as Wedel. Ante at ––––. It further posits that “[t]here is no meaningful difference between the two.” Ante at ––––. I disagree with both conclusions.

As to the first statement, the policy waives only Wausau’s right to recover from Western. Recovery by Wausau from Wedel, regardless of whether those funds originated with Western, is not waived by the policy language because under these facts, Wedel is not a person “liable for an injury covered by this policy.” The Court asserts that a reading of the language to waive only subrogation rights against third parties instead of waiving both subrogation rights as well as reimbursement rights, as referenced in section 417.002, “undermines the rationale for having such a waiver in the first place.” Ante at ––––. The response to that statement is four-fold. First, the endorsement language specifies that it precludes Wausau from exercising its rights “against the person or organization named in the Schedule,” which is just what Western contracted for. Second, the endorsement unambiguously and simply specifies that the endorsement “shall not operate directly or indirectly to benefit anyone not named in the Schedule.” Wedel is not named in the schedule, yet the Court’s interpretation manifestly benefits him both directly and indirectly. And there is no evidence or contention that Western’s contractual requirement for waiver of subrogation by the carrier was intended to benefit Cactus or its employees who might be injured. Third, the Act specifies that carriers have rights of both subrogation as to third parties liable for injuries to covered employees and reimbursement in the event the carrier does not have or does not assert a right of subrogation against a third party like Western. And fourth, Western’s requirement was transparently intended to protect the interests of the Western Entities, as specified in its contract with Cactus and as discussed below, not to benefit Cactus’s employees.

As to the Court’s second statement, a brief review of the previous discussion regarding subrogation and reimbursement, as addressed by sections 417.001 and 417.002, demonstrates that there indeed is a meaningful difference in how the two are treated by the Act. First, the Act addresses the two in different sections. TEX. LAB. CODE §§ 417.001, .002. Second, an insurer who is subrogated to the rights of another—such as Wausau is, or would be except for the waiver, subrogated to the rights of Wedel—steps into the shoes of the party to whose rights it is subrogated and obtains all the rights of that party related to recovery of amounts paid to it. See Guillot v. Hix, 838 S.W.2d 230, 232 (Tex. 1992) (stating that the rights conferred by subrogation are derivative of the subrogor’s interests, to which the subrogee succeeds). The right of reimbursement in section 417.002 does not afford the carrier such extensive rights and, in most instances, will result in a lesser recovery than would be obtained under section 417.001.

Further, the Court goes beyond the language of the endorsement and talks about the “rationale for having such a waiver.” Ante at ––––. But “rationale” does not trump the express language of the endorsement in context of the statutory provisions. By implying that it does, the Court second-guesses and encroaches on the Legislature’s exercise of its policy-making function when it enacted sections 417.001 and 417.002 and their clear, separate treatment of subrogation and reimbursement. See Town of Flower Mound v. Stafford Estates Ltd., 135 S.W.3d 620, 628 (Tex. 2004) (“[T]he State’s public policy is reflected in its statutes.” (quoting Tex. Commerce Bank, N.A. v. Grizzle, 96 S.W.3d 240, 250 (Tex. 2002) ) ). Further, the Court’s “rationale” discussion fails to justify its position. The rights of subrogation and reimbursement are distinct and have different characteristics, as noted above. A waiver as to subrogation alone provides value to both a policy holder and potential third-party defendant. A waiver of subrogation prevents claims and lawsuits brought by a carrier—whose business generally is adjusting and paying claims with money received through premiums and collateral activities like recovering on subrogation claims and litigating regularly—to recover benefits paid to covered employees, even if the employees choose not to bring suit. This alone would be worth a premium to a policy holder, such as Cactus, that is seeking to interact or do business with an entity such as Western. And it would be of value to Western to have a workers’ compensation carrier, whose business model includes litigating, removed from the decision-making process regarding potential third-party claims and suits against Western. Finally, even if Western intended to acquire a waiver as to both subrogation and reimbursement (an intent not expressed in the simple, clear language of its agreement with Cactus), we have consistently held that the intent of parties to an insurance contract does not matter—it is the policy language that matters. E.g., Greene v. Farmers Ins. Exch., 446 S.W.3d 761, 766 (Tex. 2014). And policy language is interpreted according to its ordinary, plain meaning. Id.; Progressive Cty. Mut. Ins. Co., 107 S.W.3d at 551.

Further, the endorsement to Wausau’s policy states that “[w]e will not enforce our right against the person or organization named in the Schedule.” The schedule is limited to “[a]ny person or organization for whom the Named Insured has agreed by written contract to furnish this waiver.” Thus, the endorsement is not ambiguous or unclear. It waives only Wausau’s right to assert a claim against or sue an alleged tortfeasor (such as Western) if that tortfeasor is party to a written contract requiring the waiver. Here, the only parties to the written contract were Cactus and Western. Because Wedel is not a party to that contract, the endorsement does not apply to impair Wausau’s rights as to him—which are the rights of reimbursement specified in section 417.002 of the Act. And to the extent the Court discusses the premiums paid by Cactus for the endorsement, how the premiums were calculated is beyond anything in this record other than the parties do not dispute that Cactus paid a premium for the endorsement to its policy. The question is: What did the endorsement do and thus what did Cactus pay for? The answer is: It clearly and unambiguously waived only Wausau’s right to “enforce our right [to recover payments] against the person or organization named in the Schedule.” That person or organization was not Wedel, it was the “Western Entities.”

Noticeably absent from the contract between Western and Cactus, as well as from the endorsement, is any indication that Cactus or Western intended for Wedel or any other Cactus employee who was injured on the job to receive a double recovery in the nature of both workers’ compensation benefits and recovery from Western on a third-party claim. Further, permitting Wedel to receive both workers’ compensation benefits and a recovery from Western free of Wausau’s right to reimbursement amounts to a clear benefit in violation of the endorsement’s explicit provision stating that “[t]his endorsement shall not operate directly or indirectly to benefit anyone not named in the Schedule.” To reiterate, Wedel is not named in the schedule.

The Court discusses the practicalities of the carrier’s subrogation and reimbursement rights under the statue and the endorsement, and says that those rights cause problems in settling claims like those Wedel made against Western. Ante at ––––. But such problems have existed since the Legislature enacted workers’ compensation statutes and created the need to balance the interests of injured workers, carriers, and employers who pay premiums for insurance and whose premiums are affected by losses. There simply is unavoidable tension where multiple parties, with differing interests and motivations, are contesting liability for injuries, liquidating claims based on alleged liability for injuries, and allocating proceeds in settlement of claims. But those practicalities should not be the basis for interpreting language of an insurance policy endorsement. The language itself should be the basis. Nor should courts simply substitute their idea of a preferred settlement process for the unambiguous language of a binding contract. Fiess v. State Farm Lloyds, 202 S.W.3d 744, 753 (Tex. 2006) (“[W]here the language is plain and unambiguous, courts must enforce the contract as made by the parties ….” (quoting E. Tex. Fire Ins. Co. v. Kempner, 87 Tex. 229, 27 S.W. 122, 122 (1894) ) ). The Act is a detailed product of over one hundred years of adjusting various provisions in it by the Legislature with input from the various interests involved in the workers’ compensation system. Sections 417.001 and 417.002 reflect that detail. So does the waiver endorsement promulgated by TDI. Adjustments to such detailed prescription for how subrogation and reimbursement are to work in the context of the Act should be left to the Legislature.

IV. Case Law
The Court states that its decision “stand[s] on over twenty years of unanimous case law” and notes that it “glean[s] insight” from TDI’s inaction in light of those decisions. Ante at ––––. However, the case law stems from various courts of appeals and a federal district court. See Liberty Ins. Corp. v. SM Energy, No. H-12-3092, 2012 WL 6100303, at *7–9 (S.D. Tex. 2012); Am. Risk Funding Ins. Co. v. Lambert, 59 S.W.3d 254, 259 (Tex. App.—Corpus Christi–Edinburg 2001, pet. denied); Lumbermen’s Mut. Cas. Co. v. Carter, 934 S.W.2d 912, 913 (Tex. App.—Beaumont 1996, no writ); Hartford Accident & Indem. Co. v. Buckland, 882 S.W.2d 440, 445 (Tex. App.—Dallas 1994, writ denied). And much of it emanates from and relies on decisions based on the language of repealed provisions predating the current Act. See, e.g., Buckland, 882 S.W.2d at 444 (discussing article 8307 § 6a, Act of May 15, 1973, 63rd Leg., R.S., ch. 88, § 10, 1973, Tex. Gen. Laws 193 (repealed) ).

Wausau asserts that while the Buckland decision is the foundation for the courts of appeals’ opinions that follow, the case does not actually support a conclusion that the policy waiver encompasses subrogation as well as reimbursement. I agree. The Court is correct that the Buckland opinion quotes a TDI waiver that is substantively the same as the one at issue in this case. Ante at –––– (citing Buckland, 882 S.W.2d at 441). In Buckland, however, the court of appeals stated, without analyzing the policy’s language, that “a carrier’s subrogation interest includes its right to reimbursement as well as its right to future amounts.” Buckland, 882 S.W.2d at 445. Wausau contends that the court’s conflation of subrogation and reimbursement extended the approved waiver language beyond its plain meaning. Again, I agree. As discussed above, the language of the TDI-originated form waiver simply does not address a carrier’s statutory right of reimbursement.

The Court also notes that SM Energy addressed the same TDI waiver language and the issue was the same as presented here. Ante at –––– (citing SM Energy, 2012 WL 6100303, at *1). But again, without full analysis of the endorsement’s language, the district court concluded that the endorsement waived the carrier’s rights as to both subrogation and reimbursement on the basis that “[c]ourts applying Texas law do not distinguish between a carrier’s subrogation and reimbursement rights in the Worker[s’] Compensation Act context.” SM Energy, 2012 WL 6100303, at *9. I disagree with this analysis as Texas law—the Workers’ Compensation Act—clearly distinguishes between the two rights. See TEX. LAB. CODE §§ 417.001, .002.

At the end of the day, while persuasive, the referenced opinions are not binding on this Court pursuant to our constitutional charge. TEX. CONST. art. IV, § 3 (stating that the Court’s appellate jurisdiction shall be final). And the legislative acceptance doctrine—which the Court substantively references and which comes into play where interpretations of statutory law such as the sections of the Act involved here, are concerned—applies only where the relevant provisions have “been interpreted by a court of last resort or given a longstanding construction by a proper administrative officer.” Tex. Dep’t of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 176 (Tex. 2004). This Court has never decided the issue before us today. And though the Court notes decisions of TDI administrative judges regarding the question, “[a]nother element of the legislative acceptance doctrine is that the statute at issue must be ambiguous. Under the doctrine of legislative acceptance, an administrative agency’s construction of a statue cannot contradict the statute’s plain meaning.” Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 282 (Tex. 1999) (citation omitted). Moreover, appeals from both TDI decisions the Court references remain pending in the courts—one in a district court and one in a court of appeals. See Liberty Mut. Ins. Co. v. Trahan, No. 14–17–00528–CV (Tex. App.—Houston [14th Dist.] submitted Mar. 22, 2018); Liberty Mut. Fire Ins. Co. v. Ainsworth, No. 2016–45952 (165th Dist. Ct., Harris County, Tex. status report May 4, 2018).

The Court builds on its references and concludes that they “are consistent with the waiver’s plain language.” Ante at ––––. But, as explained, neither the language of the endorsement nor that of sections 417.001 and 417.002 support the conclusion that subrogation and reimbursement are treated as one and the same. Authorities concluding otherwise are simply not consistent with language of the waiver and the relevant statutory provisions. Neither is the Court’s conclusion.

Finally, while the “decades of settled and unanimous” case law the Court references does not serve as valid, binding precedent, even if it did, the doctrine of stare decisis is not absolute. See Sw. Bell Tel. Co. v. Mitchell, 276 S.W.3d 443, 447 (Tex. 2008). “[U]pon no sound principle do we feel at liberty to perpetuate an error, into which either our predecessors or ourselves may have unadvisedly fallen, merely upon the ground of such erroneous decision having been previously rendered.” Id. (alteration in original) (quoting Willis v. Owen, 43 Tex. 41, 48–49 (1875) ). Errors, when discovered, should be corrected.

V. Conclusion
Insurance policies and their endorsements are to be construed according to their plain language. Here, the endorsement did just what Cactus and Western contracted for: it waived Wausau’s right to sue or make a claim against Western for the payments it made to and for the benefit of Wedel. If, as the Court says, the “rationale” for Wausau’s endorsement requires waiver of both the carrier’s right of subrogation and its right of reimbursement, ante at ––––, then the rationale should be effected by the parties, who contract for the waiver, and TDI, which prescribes the language for such waivers. But the solution is not for the Court to construe an unambiguous insurance policy endorsement to say something it does not say. I would reverse the judgment of the court of appeals and remand the case for further proceedings.

All Citations
— S.W.3d —-, 2018 WL 2750567

Footnotes

1
Wausau argues that the endorsement did not waive its statutory right to subrogation, only its right to recover for payments it made. In my view, the distinction, if any, is not determinative of the issue before us and need not be addressed because the endorsement did not waive Wausau’s reimbursement right. The Court refers to the rights in question as Wausau’s rights of subrogation and reimbursement. I will do likewise to avoid confusion.

2
Both James Wedel and his wife, Michelle, were parties to the suit filed against Western. James died while this matter was pending in the court of appeals. Any references to “Wedel” will encompass James, both James and Michelle, or Michelle, depending on the context. Wausau asserts, and Wedel does not dispute, that as of August 15, 2014, Wausau had paid over $1,548,822 in medical and income benefits to and for Wedel’s benefit.

3
The Fortis Benefits policy provided:
Subrogation Right. Upon payment of benefits, We will be subrogated to all rights of recovery a Covered Person may have against any person or organization. This includes but is not limited to recoveries against such third party, against any liability coverage for such third party or against automobile insurance in the event a claim is made under the uninsured or underinsured motorist coverages. Such right extends to the proceeds of any settlement or judgment; but is limited to the amount of benefits We have paid. You must 1) do nothing to prejudice any right of recovery; 2) execute and deliver any required instruments or papers; and 3) do whatever else is necessary to secure such rights.
If We are precluded from exercising Our Subrogation Right, We may exercise Our Right of Reimbursement.
Right of Reimbursement. If benefits are paid under this plan, and any Covered Person recovers against any person or organization by settlement, judgment or otherwise, We have a right to recover from that Covered Person an amount equal to the amount We have paid. This includes but is not limited to recoveries against such third party, against any liability coverage for such third party or against automobile insurance in the event a claim is made under n.11 the uninsured or underinsured motorist coverages.
Fortis Benefits, 234 S.W.3d at 645 n.11.

4
The Act fairly consistently uses the phrase “the injured employee or the employee’s beneficiaries,” or a variation of that language. For convenience, I will simply refer to “the employee.” When appropriate, the reference is intended to include both the employee and the employee’s beneficiaries under the Act.