You Can't Do
That!
Trial judge abused discretion by refusing to abate personal injury suite and
consolidating it with judicial review of TDI-DWC decision
This month the 14th Court of Appeals in Houston agreed with
arguments by Stone Loughlin & Swanson, LLP and other firms that Harris
County District Court Judge Fredericka Phillips abused her discretion by (1)
refusing to abate a personal injury action pending judicial review of a TDI-DWC
decision on the worker’s employment status and (2) consolidating the two
actions.
In our law firm’s 20-year history we’ve seen some bizarre workers’ compensation
claims, but this one might just take the cake. It's through-the-looking-glass
procedural history began when, in September 2021, 16-year-old Romny Sanchez
joined his uncle, Leonel Yanez, on a job providing remediation services to
victims of Hurricane Ida in Louisiana. Both men were injured while riding as
passengers in a van driven by Joe Saavedra, who fell asleep and crashed into a
light pole. Saavedra was an employee of All Repair and Restoration, LLC, and
Sanchez and Yanez filed a personal injury suit against All Repair in Harris
County district court alleging everything but the kitchen sink -- asserting
claims for negligence, vicarious liability, fraud, civil conspiracy, gross
negligence, intentional infliction of emotional distress, and violations of the
Fair Labor Standards Act and the Texas Payday Act. All Repair asserted the
affirmative defense that Sanchez and Yanez were its employees and their
exclusive remedy is workers’ compensation benefits under All Repair’s policy
with National Casualty Company.
Sanchez and Yanez disputed that they were All Repair’s employees, so National,
represented by this firm, initiated dispute resolution proceedings at the
TDI-DWC to determine their employment status. Even though the facts were
largely the same for both men, the Division refused National’s request to hear
the cases together. Instead, it insisted on conducting two separate contested
case hearings by two different ALJs. And, as could be predicted, the ALJs
reached different conclusions. The ALJ presiding over Yanez’ case concluded
that he was All Repair’s employee, but the ALJ presiding over Sanchez’
case concluded that he was not All Repair’s employee. All Repair then
filed a petition for judicial review of the decision regarding Sanchez.
At Sanchez’ request, and over the objections of National and All Repair, Judge
Phillips consolidated the two actions and denied a motion to abate the personal
injury action pending resolution of the judicial review action. National and
All Repair then took the extraordinary step of filing a petition for writ of
mandamus with the court of appeals.
The court of appeals found that Judge Phillips abused her discretion on both
counts. It directed her to vacate her order of consolidation because, among
other things, “a vast portion of the evidence to be expected in the personal
injury suit is likely to be inadmissible in the judicial review suit due to the
limited nature of the proceeding.” It also directed her to abate the personal
injury suit pending the outcome of the petition for judicial review, citing its
prior decisions in In re Tyler
Asphalt & Gravel Co. and In re Luby’s Cafeterias, Inc. which
hold that abatement is required under such circumstances.
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Loughlin & Swanson, LLP
