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NO. 2015-67886
MARIBEL SILVA AND § IN THE DISTRICT COURT
RICK SILVA §
§ HARRIS COUNTY, TEXAS
vs. §
§ 333RD JUDICIAL DISTRICT
ACS FLOORING GROUP, INC. §
DEFENDANT’S RESPONSE TO PLAINTIFFS’ OBJECTION TO
DEFENDANT’S MOTION FOR LEAVE TO DESIGNATE RESPONSIBLE
THIRD PARTY
Defendant, ACS FLOORING GROUP, INC.’ files this Response to Plaintiffs’
Objection to Defendant’s Motion for Leave to Designate Responsible Third Party.
I. BACKGROUND
Plaintiff, Maribel Silva, was an employee of Anadarko Petroleum Corporation
(“Anadarko”) from 2007 until early 2015. Ms. Silva worked in Anadarko’s Timberloch
facility where, just a few weeks prior to her accident, ACS Flooring Group, Inc., (“ACS”)
installed new carpet. On August 4, 2014, Ms. Silva was exiting her personal office when her
shoe heel caught the loose edge of a carpet tile causing her to fall and hit her head.
The statute of limitations on Ms. Silva’s claim expired on August 4, 2016.
Il. Arguments & Authorities
ACS filed this Motion for Leave on August 2, 2019, and, for the first time, indicated
it’s intent to designate Anadarko as a Responsible Third Party. Although the Defendant’s
Motion for Leave to Designate Responsible Third Party was filed after the Statute of
Limitations ran on August 14, 2016, the Plaintiff is not prejudiced. Had the Defendant
moved to designate Anadarko as a Responsible Third Party before limitations ran, the
Plaintiff would be barred from filing suit against Anadarko because of the Exclusive RemedyDefense which precludes an employee from suing her employer covered by Workers’
Compensation.
The Plaintiff relies upon Varela v. American Petrofina Co., 658 S.W.2d 561 (Tex. 1983).
This case was decided before the Responsible Third Party statute was enacted. Varela does
not control the instant case. The instant case is controlled by New Hampshire Ins. Co. v.
Rodriguez, 569 S.W.3d 275 (Tex.App. — El Paso 2019). The court in New Hampshire Ins. Co.
stated that the 2003 State Legislature eliminated the prohibition against designating a
subscribing employer as a responsible third party under Section 33.003 of the Texas Civil
Practice and Remedies Code, meaning that an employer’s negligence could be placed at issue
for the first time before a jury and thus (1) proportionally reduce an employee’s recovery and
(2) allow other parties’ negligence to be viewed in context of all alleged negligence, even
though the subscribing employer is immune from suit. Id at 299; See generally Act of June 2,
2003, 78" Leg., R.S., ch. 204 §§ 4.05, 4.11, 2003 TEX.GEN.LAWS 847, 857, 859.
It is precisely this circumstance that the RIP statute was intended to cover. The
Responsible Third Party provision enables a defendant to submit for the jury’s consideration
a responsible third party which the Plaintiff did not or cannot sue.
WHEREFORE, PREMISES CONSIDERED, Defendant prays that the Plaintiffs’
Objection to Defendant’s Motion for Leave to Designate Responsible Third Party is here by
overruled.Respectfully Submitted,
LAW OFFICES OF KILPATRICK &
HOLDER
wn tel Pak
John C. Kilpatrick
SBN: 11416540
801 Louisiana Street, Suite 500
Houston, TX 77002
Phone: (713) 546-2000
Fax: (855) 610-8083
john.kilpatrick@libertymutual.com
Aitorney for Defendant
ACS FLOORING GROUP, INC.CERTIFICATE OF SERVICE
h
I certify that on this uy day of September, 2019, service required under these
rules was made pursuant to Rule 21a.
Douglas A. Daniels
Jeffrey M. Smith
DANIELS & TREDENNICK, LLP
6363 Woodway, Ste. 965
Houston, TX 77057
Telephone: (713) 917-0024
Facsimile: (713) 917-0026
Attorneys for Plaintiffs
Of Counsel
H.Q. Nguyen
NGUYEN LEFTT. P.C.
565 Fifth Avenue, 22nd Floor
New York, New York 10017
Telephone: (212) 256-1755
Facsimile: (212) 256-1756
fon beiyput (He.
Joh C. Kilpatrick
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NO. 2015-67886 MARIBEL SILVA AND § IN THE DISTRICT COURT RICK SILVA § § HARRIS COUNTY, TEXAS vs. § § 333RD JUDICIAL DISTRICT ACS FLOORING GROUP, INC. § DEFENDANT’S RESPONSE TO PLAINTIFFS’ OBJECTION TO DEFENDANT’S MOTION FOR LEAVE TO DESIGNATE RESPONSIBLE THIRD PARTY Defendant, ACS FLOORING GROUP, INC.’ files this Response to Plaintiffs’ Objection to Defendant’s Motion for Leave to Designate Responsible Third Party. I. BACKGROUND Plaintiff, Maribel Silva, was an employee of Anadarko Petroleum Corporation (“Anadarko”) from 2007 until early 2015. Ms. Silva worked in Anadarko’s Timberloch facility where, just a few weeks prior to her accident, ACS Flooring Group, Inc., (“ACS”) installed new carpet. On August 4, 2014, Ms. Silva was exiting her personal office when her shoe heel caught the loose edge of a carpet tile causing her to fall and hit her head. The statute of limitations on Ms. Silva’s claim expired on August 4, 2016. Il. Arguments & Authorities ACS filed this Motion for Leave on August 2, 2019, and, for the first time, indicated it’s intent to designate Anadarko as a Responsible Third Party. Although the Defendant’s Motion for Leave to Designate Responsible Third Party was filed after the Statute of Limitations ran on August 14, 2016, the Plaintiff is not prejudiced. Had the Defendant moved to designate Anadarko as a Responsible Third Party before limitations ran, the Plaintiff would be barred from filing suit against Anadarko because of the Exclusive RemedyDefense which precludes an employee from suing her employer covered by Workers’ Compensation. The Plaintiff relies upon Varela v. American Petrofina Co., 658 S.W.2d 561 (Tex. 1983). This case was decided before the Responsible Third Party statute was enacted. Varela does not control the instant case. The instant case is controlled by New Hampshire Ins. Co. v. Rodriguez, 569 S.W.3d 275 (Tex.App. — El Paso 2019). The court in New Hampshire Ins. Co. stated that the 2003 State Legislature eliminated the prohibition against designating a subscribing employer as a responsible third party under Section 33.003 of the Texas Civil Practice and Remedies Code, meaning that an employer’s negligence could be placed at issue for the first time before a jury and thus (1) proportionally reduce an employee’s recovery and (2) allow other parties’ negligence to be viewed in context of all alleged negligence, even though the subscribing employer is immune from suit. Id at 299; See generally Act of June 2, 2003, 78" Leg., R.S., ch. 204 §§ 4.05, 4.11, 2003 TEX.GEN.LAWS 847, 857, 859. It is precisely this circumstance that the RIP statute was intended to cover. The Responsible Third Party provision enables a defendant to submit for the jury’s consideration a responsible third party which the Plaintiff did not or cannot sue. WHEREFORE, PREMISES CONSIDERED, Defendant prays that the Plaintiffs’ Objection to Defendant’s Motion for Leave to Designate Responsible Third Party is here by overruled.Respectfully Submitted, LAW OFFICES OF KILPATRICK & HOLDER wn tel Pak John C. Kilpatrick SBN: 11416540 801 Louisiana Street, Suite 500 Houston, TX 77002 Phone: (713) 546-2000 Fax: (855) 610-8083 john.kilpatrick@libertymutual.com Aitorney for Defendant ACS FLOORING GROUP, INC.CERTIFICATE OF SERVICE h I certify that on this uy day of September, 2019, service required under these rules was made pursuant to Rule 21a. Douglas A. Daniels Jeffrey M. Smith DANIELS & TREDENNICK, LLP 6363 Woodway, Ste. 965 Houston, TX 77057 Telephone: (713) 917-0024 Facsimile: (713) 917-0026 Attorneys for Plaintiffs Of Counsel H.Q. Nguyen NGUYEN LEFTT. P.C. 565 Fifth Avenue, 22nd Floor New York, New York 10017 Telephone: (212) 256-1755 Facsimile: (212) 256-1756 fon beiyput (He. Joh C. Kilpatrick