MEMORANDUM OPINION

 

Court of Appeals of Texas,

Fort Worth.

Paul ROBERTSON, Appellant

v.

HOME STATE COUNTY MUTUAL INSURANCE COMPANY, Appellee.

No. 2-08-280-CV.

 

Oct. 8, 2009.

 

PANEL: CAYCE, C.J.; DAUPHINOT and MEIER, JJ.

 

MEMORANDUM OPINION

 

See Tex.R.App. P. 47.4.

BILL MEIER, Justice.

 

I. INTRODUCTION

 

This is an insurance coverage case. Appellant Paul Robertson obtained a judgment against his employer, Ray Redi-Mix, Inc., for damages for personal injuries that he sustained while on the job. Appellee Home State County Mutual Insurance Company, Redi-Mix’s transportation insurer, denied coverage under several exclusions contained in Redi-Mix’s policy of insurance for Robertson’s claims against Redi-Mix and obtained a summary judgment against Robertson based on those exclusions. In two issues, Robertson argues that the trial court erred by granting Home State’s motion for summary judgment. We will affirm.

 

II. FACTUAL AND PROCEDURAL BACKGROUND

 

According to Robertson’s first amended original petition, Redi-Mix employed him as a truck driver. On November 3, 2005, Robertson informed Redi-Mix that the truck to which he had been assigned to drive had a defective tarp, but Redi-Mix instructed him to make do with the tarp he had. The next day, the tarp malfunctioned, causing Robertson to sustain bodily injuries.

 

Redi-Mix did not provide workers’ compensation insurance coverage to its employees. It did, however, have a truckers’ liability insurance policy issued by Home State (the “Policy”) that provided coverage for “all sums an insured legally must pay as damages because of bodily injury or property damage to which [the] insurance applies, caused by an accident and resulting from the ownership, maintenance or use of a covered auto.” The Policy contained the following relevant exclusions to which coverage did not apply:

 

3. WORKERS COMPENSATION

 

Any obligation for which the insured or the insured’s insurer may be held liable under any workers compensation, disability benefits or unemployment compensation law or any similar law.

 

4. EMPLOYEE INDEMNIFICATION AND EMPLOYER’S LIABILITY

 

Bodily injury to:

 

a. An employee of the insured arising out of and in the course of employment by the insured; or

 

b. The spouse, child, parent, brother or sister of that employee as a consequence of paragraph a. above.

 

This exclusion applies

 

(1) Whether the insured may be liable as an employer or in any other capacity; and

 

(2) To any obligation to share damages with or repay someone else who must pay damages because of the injury.

 

But this exclusion does not apply to bodily injury to domestic employees not entitled to workers compensation benefits or to liability assumed by the insured under an insured contract.

 

Robertson sued Redi-Mix for the injuries that he allegedly sustained on November 4, 2005, and he sought a declaratory judgment that Home State had a duty to defend, to indemnify, or to both defend and indemnify Redi-Mix for his claims against Redi-Mix. Home State filed a counterclaim seeking a declaratory judgment that it had neither a duty to defend nor a duty to indemnify Redi-Mix for the claims made by Robertson against Redi-Mix because the workers’ compensation and employee exclusions contained in the Policy applied to exclude coverage under the Policy. Robertson obtained a final judgment against Redi-Mix for, among other things, damages in the amount of $967,631.52, and the trial court severed Robertson’s suit against Redi-Mix from his remaining claim against Home State. Home State moved for summary judgment on the grounds (1) that coverage under the Policy for Robertson’s claims against Redi-Mix is excluded under the workers’ compensation exclusion, (2) that coverage under the Policy for Robertson’s claims against Redi-Mix is excluded under the employee exclusion and did not fall within the “domestic employee” exception, and (3) that the truck to which Robertson was assigned when he sustained injuries is not a listed vehicle under the Policy. The trial court granted Home State’s motion for summary judgment on the grounds that Robertson’s claims against Redi-Mix are excluded under both the workers’ compensation and employee exclusions. Robertson appeals.

 

III. SUMMARY JUDGMENT STANDARD OF REVIEW

 

In a summary judgment case, the issue on appeal is whether the movant met the summary judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). The burden of proof is on the movant, and all doubts about the existence of a genuine issue of material fact are resolved against the movant. Sw. Elec. Power Co., 73 S.W.3d at 215. Once the movant produces sufficient evidence to establish the right to summary judgment, the burden shifts to the nonmovant to come forward with competent controverting evidence raising a genuine issue of material fact with regard to the element challenged by the defendant. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.1995).

 

When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). Evidence that favors the movant’s position will not be considered unless it is uncontroverted. Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965). But we must consider whether reasonable and fair-minded jurors could differ in their conclusions in light of all of the evidence presented. See Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 568 (Tex.2006); City of Keller v. Wilson, 168 S.W.3d 802, 822-24 (Tex.2005). The summary judgment will be affirmed only if the record establishes that the movant has conclusively proved all essential elements of the movant’s cause of action or defense as a matter of law. Clear Creek Basin Auth., 589 S.W.2d at 678.

 

IV. WORKERS’ COMPENSATION EXCLUSION

 

In his first issue, Robertson argues that the trial court erred by granting Home State’s motion for summary judgment on the ground that coverage under the Policy for Robertson’s claims against Redi-Mix is excluded under the workers’ compensation exclusion. He complains that his negligence claim against Redi-Mix is not excluded under the Policy’s workers’ compensation exclusion because Redi-Mix did not subscribe to workers’ compensation benefits. He contends that because Redi-Mix was a nonsubscriber, his negligence action against Redi-Mix sounded in common law and did not arise under the workers’ compensation laws. Thus, according to Robertson, because his negligence action did not arise under the workers’ compensation laws, the judgment he obtained against Redi-Mix did not implicate the Policy’s exclusion of coverage for an “obligation for which the insured or the insured’s insurer may be held liable under any workers compensation.” [Emphasis added.] Robertson makes no argument or allegation that any part of the workers’ compensation exclusion is ambiguous. Therefore, the specific issue we address is whether Robertson’s negligence action against Redi-Mix, a nonsubscribing employer, arose under the Texas Workers’ Compensation Act (“TWCA”). See Tex. Lab.Code Ann. §§ 406.031-.035 (Vernon 2006).

 

Robertson included argument in his response to Home State’s motions for summary judgment addressing the grounds (1) that coverage under the Policy for Robertson’s claims against Redi-Mix is excluded under the employee exclusion and did not fall within the “domestic employee” exception and (2) that the truck assigned to Robertson when he sustained injuries is not a listed vehicle under the Policy. We are unable to locate in Robertson’s response any argument addressing the ground that coverage under the Policy for Robertson’s claims against Redi-Mix is excluded under the workers’ compensation exclusion. We therefore construe Robertson’s argument in his first issue as a challenge to the legal sufficiency of this ground. See Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex.1999); Clear Creek Basin Auth., 589 S.W.2d at 678; see also McConnell v. Southside ISD, 858 S.W.2d 337, 343 (Tex.1993).

 

We review the meaning of a statute de novo. Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex.2009) (op. on reh’g). Our primary objective when construing a statute is to ascertain and give effect to the legislature’s intent. McIntyre v.. Ramirez, 109 S.W.3d 741, 745 (Tex.2003). We must construe the statute as written and, if possible, determine legislative intent “first and foremost” from the statute’s language. Lexington Ins. Co. v. Strayhorn, 209 S.W.3d 83, 85 (Tex.2006). If a statute is clear and unambiguous, we generally interpret the statute according to its common meaning without resort to rules of construction or extraneous evidence. State v. Shumake, 199 S.W.3d 279, 284 (Tex .2006). However, we may consider other matters in ascertaining legislative intent, including the objective of the law, its history, and the consequences of a particular construction. Id. We also consider the statute as a whole rather than its isolated provisions. Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex.2001). Courts should give effect to every sentence, word, and clause of a statute if reasonable and possible.   Tex. Workers’ Comp. Ins. Fund v. Del. Indus., Inc., 35 S.W.3d 591, 593 (Tex.2000).

 

The TWCA was adopted to provide prompt remuneration to employees who sustain injuries in the course and scope of their employment. Hughes Wood Prods., Inc. v. Wagner, 18 S.W.3d 202, 206 (Tex.2000). An employer has the option of providing workers’ compensation insurance for employees and thereby becoming a subscriber under the TWCA or not providing workers’ compensation insurance and thereby remaining a nonsubscriber. Lawrence v. CDB Servs., Inc., 16 S.W.3d 35, 41 (Tex.App.-Amarillo 2000), aff’d, 44 S.W.3d 544 (Tex.2001); see Tex. Lab.Code Ann. § 406.002(a) (Vernon 2006) (providing that except for public employers and as otherwise provided by law, an employer may elect to obtain workers’ compensation insurance coverage). The decision to subscribe or not to subscribe, however, has certain consequences for both an employer and an employee that are specifically delineated by the TWCA.

 

As one court described it, “[E]mployers making the decision on whether to subscribe must face a Texas statutory scheme that wields both a stick and a carrot.” Figueroa v. Healthmark Partners, L.L .C., 125 F.Supp.2d 209, 210 (S.D.Tex.2000).

 

If the employer participates in the workers’ compensation system, the employer and the employer’s employees are protected from an employee’s common law claims for injuries or death occurring during the course and scope of the employee’s work responsibilities. Hunt Constr. Group, Inc. v. Konecny, 290 S.W.3d 238, 243 (Tex.App.-Houston [1st Dist.] 2008, no pet. h.). Labor code section 406.031 provides that an insurance carrier is liable for compensation for an employee’s injury without regard to fault or negligence if, at the time of injury, the employee is subject to this subtitle and the injury arises out of and in the course and scope of employment. Tex. Lab.Code Ann. § 406.031(a); see also Figueroa, 125 F.Supp.2d at 210 (“Employers who elect to purchase workers’ compensation coverage gain the benefit of no-fault, but limited financial liability.”). Under section 408.001(a), recovery of workers’ compensation benefits is the exclusive remedy of an employee covered by workers’ compensation insurance coverage against an employer for the death of or a work-related injury sustained by the employee. Tex. Lab.Code Ann. § 408.001(a) (Vernon 2006).

 

Further, under the TWCA, the employee of a subscriber is deemed to have waived his or her right of action at common law to recover damages for personal injuries sustained in the course and scope of employment unless the employee notifies the employer in writing that the employee waives coverage and retains all rights of action under common law. Id. § 406.034(a), (b). In this situation, “An employee who elects to retain the right of action … may bring a cause of action for damages for injuries sustained in the course and scope of the employment under common law or under a statute of this state.” Id. § 406.034(d). Such a cause of action is subject to “all defenses under common law and the statutes of this state.” Id.

 

If, on the other hand, an employer does not participate in the workers’ compensation system, the TWCA states, “In an action … against an employer who does not have workers’ compensation insurance coverage, the plaintiff must prove negligence of the employer or of an agent or servant of the employer acting within the general scope of the agent’s or servant’s employment.” Id. § 406.033(d) (emphasis added). In such an action, the employer may not assert common law defenses against the employee, but it may “defend the action on the ground that the injury was caused” by an act of the employee intended to bring about the injury or while the employee was in a state of intoxication. Id. § 406.033(a), (c); Konecny, 290 S.W.3d at 243; see Figueroa, 125 F.Supp.2d at 210 (“[A] nonsubscribing employer must defend itself against personal injury actions brought by employees without the benefit of several common law defenses.”).

 

Specifically, labor code section 406.033(a) provides,

 

(a) In an action against an employer who does not have workers’ compensation insurance coverage to recover damages for personal injuries or death sustained by an employee in the course and scope of the employment, it is not a defense that:

 

(1) the employee was guilty of contributory negligence;

 

(2) the employee assumed the risk of injury or death; or

 

(3) the injury or death was caused by the negligence of a fellow employee.

 

Tex. Lab.Code Ann. § 406.033(a).

 

The TWCA therefore provides for three categories of claims: (1) administrative claims by employees of subscribers; (2) negligence actions of employees of subscribers wherein common law defenses are available; and (3) negligence actions by employees of nonsubscribers in which common law defenses are not available. See Tex. Lab.Code Ann. §§ 406.031, .033, .034; Britt v. Suckle, 453 F.Supp. 987, 994 (E.D.Tex.1978).

 

In Kroger Co. v. Keng, the supreme court addressed the issue of whether a nonsubscriber to workers’ compensation insurance was entitled to a jury question regarding its employee’s alleged comparative responsibility for his or her injuries. 23 S.W.3d 347, 350 (Tex.2000) (“Kroger II ”). The court discussed section 406 .033, which it referred to as the “penalty statute,” and reasoned in part as follows:

 

In enacting section 406.033 and its predecessors, the Legislature intended to delineate explicitly the structure of an employee’s personal injury action against his or her nonsubscribing employer. Section 406.033(a) prescribes the defenses that are unavailable to a nonsubscriber; section 406.033(c) dictates the defenses that implicate the employee’s conduct and on which an employer may rely; and section 406.033(d) provides the employee’s burden of proof, stating that “the plaintiff must prove negligence of the employer or of an agent or servant of the employer acting within the general scope of the agent’s or servant’s employment.” The Legislature has not changed this structure since 1917, when it deleted proportionate reduction, the equivalent of comparative responsibility, from the penalty statute.

 

Id. at 350-51 (emphasis added) (citation omitted). The supreme court’s analysis acknowledging that the legislature intended in section 406.033 to delineate the structure of an employee’s personal injury action against his nonsubscribing employer supports Home State’s position that Robertson’s negligence action against Redi-Mix arose under the TWCA.

 

In addition to the language of the TWCA and the supreme court’s reasoning in Kroger II, Home State’s position is supported by several cases in which federal district courts in Texas have addressed the issue of whether 28 U.S.C. § 1445(c) barred removal to federal court of an action against a nonsubscriber. See Figueroa, 125 F.Supp.2d at 210-12; Dean v. Tex. Steel Co., 837 F.Supp. 212, 213-14 (N.D.Tex.1993); see also Smith v. Tubal-Cain Indus., Inc., 196 F.Supp.2d 421, 423 (E.D.Tex.2001). That statute provides that “[a] civil action in any State court arising under the workmen’s compensation laws of such State may not be removed to any district court of the United States.” 28 U.S.C.A. § 1445(c) (West 2006). The courts in Figueroa, Dean, and Smith reasoned that a negligence action brought by an employee against an employer is commenced pursuant to Texas workers’ compensation law, even if the employer is a nonsubscriber. Figueroa, 125 F.Supp.2d at 211; Dean, 837 F.Supp. at 214; see also Smith, 196 F.Supp.2d at 423. Though the cases specifically considered the removability of an action in light of § 1445(c), we consider them persuasive authority on the issue of whether Robertson’s negligence action against Redi-Mix arose under the TWCA because-besides relying in part upon relevant provisions of the TWCA-they considered whether the actions involved in their cases “[arose] under the workmen’s compensation laws of” Texas, which is the issue we address in this opinion. See Figueroa, 125 F.Supp.2d at 210; Dean, 837 F.Supp. at 213-14; see also Smith, 196 F.Supp.2d at 423.

 

In this case, Redi-Mix was a nonsubscriber, and Robertson was Redi-Mix’s employee. When Robertson sued Redi-Mix for negligence, the plain and unambiguous language of the TWCA imposed upon Robertson a “statutory burden” to prove the negligence of Redi-Mix, prohibited Redi-Mix from utilizing three common law defenses in defending itself against Robertson’s action, and dictated the defenses on which Redi-Mix could rely. See Tex. Lab.Code Ann. § 406.033(a), (c), (d); Kroger Co. v. Keng, 976 S .W.2d 882, 891 (Tex.App.-Tyler 1998) (“Kroger I ”) (stating that an employee has a statutory burden to prove the negligence of the employer), aff’d on other grounds, Kroger II, 23 S.W.3d at 351-52. Thus, Robertson’s suit is not simply a common law negligence action; it is expressly contemplated by and completely provided for and described in the TWCA. See Ill. Nat’l Ins. Co. v. Hagendorf Constr. Co., Inc., 337 F.Supp.2d 902, 904-05 (W.D.Tex .2004) (granting insurer’s motion for summary judgment on the basis of a workers’ compensation exclusion and reasoning that “when an employee … brings a negligence suit against his nonsubscribing employer, such a suit arises under the Texas Workers’ Compensation Act.”); Kroger II, 23 S.W.3d at 350-51 (addressing labor code section 406.033); Figueroa, 125 F.Supp.2d at 211 (reasoning that a negligence action brought by an employee against an employer is commenced pursuant to Texas workers’ compensation law, even if the employer is a nonsubscriber); Dean, 837 F.Supp. at 214 (reasoning that negligence actions against nonsubscribing employers are expressly contemplated by Texas workers’ compensation law and holding that a negligence action brought by an employee against an employer is commenced pursuant to the TWCA); Britt, 453 F.Supp. at 993 (reasoning that a negligence action against a nonsubscriber is “completely provided for and described in the [TWCA]”); Smith, 196 F.Supp.2d at 423 (relying on Dean ); Kroger I, 976 S.W.2d at 891 (“We conclude that when an employee files suit against a nonsubscribing employer, that suit is ‘an action to collect benefits [and damages] under the workers’ compensation laws of Texas.’ ”). Accordingly, Robertson’s negligence action against Redi-Mix arose under the TWCA, and the workers’ compensation exclusion in the Policy applied to exclude coverage under the Policy for Robertson’s claims against Redi-Mix.

 

Robertson’s contention that his suit sounds only in common law and was not commenced under the TWCA simply because Redi-Mix was a nonsubscriber conflicts with the plain language of the TWCA and would effectively render meaningless several of the provisions outlined above. See Tex. Lab.Code Ann. §§ 406.033(a), (d), 406 .034(b), (d). Robertson also relies on a number of out-of-state cases in support of his argument, see Me. Bonding & Cas. Co. v. Philbrick, 538 A.2d 276, 277 (Me.1988); Scottsdale Ins. Co. v. Monares, 734 P.2d 106, 109-10 (Ariz.Ct.App.1986), but these cases are inapposite because they do not address the TWCA.

 

We hold that the trial court did not err by granting Home State’s motion for summary judgment on the basis of the workers’ compensation exclusion contained in the Policy. We overrule Robertson’s first issue. Having determined that summary judgment was proper on this ground, we need not reach Robertson’s second issue complaining that the trial court erred by granting Home State’s motion for summary judgment on the basis of the employee exclusion contained in the Policy. See Tex.R.App. P. 47.1.

 

V. CONCLUSION

 

Having overruled Robertson’s first, dispositive issue, we affirm the trial court’s judgment.