TRAVELERS INDEM. CO. OF ILL. v. FULLER

OPINION

Justice HIGHTOWER delivered the opinion of the Court, in which all Justices join.

In this case we must decide whether Article 16, Section 26 of the Texas Constitution creates an independent cause of action for punitive damages where no cause of action for compensatory damages otherwise exists. Because the Workers' Compensation Act bars Regina Fuller's cause of action for compensatory damages, and because we find that Article 16, Section 26 was not intended to abrogate the common law requirement of "actual damages," we reverse the judgment of the court of appeals and render judgment that Fuller take nothing.

Regina Fuller sued Travelers Indemnity Company of Illinois and Travelers Insurance Company (hereinafter collectively referred to as "Travelers"), claiming that their gross negligence proximately caused the death of her father. She alleged that her father, while employed at American Petrofina, was exposed to assorted polynuclear, aromatic hydrocarbons which caused his death from adenocarcinoma. Travelers was the compensation carrier for American Petrofina during the relevant time period. As part of its program of insurance, Travelers performed safety audits and industrial hygiene surveys at the refinery where Fuller's father was employed. Fuller contends that Travelers was negligent and grossly negligent in failing to alleviate the health and safety hazards at the refinery and in failing to warn her father of their existence.

Travelers moved for summary judgment, contending that it was immune from such suits under the Texas Workers Compensation Act. Fuller opposed the summary judgment contending that the Texas Constitution creates a cause of action for punitive damages which does not depend upon her right to compensatory relief, and therefore, the Workers' Compensation Act was unconstitutional to the extent that it limited her right to punitive damages. She further maintained that the provision limiting her right to pursue a wrongful death recovery violates the Open Courts Provision in Article 1, Section 13 of the Texas Constitution.

The trial court granted summary judgment in favor of Travelers. On rehearing, with one justice dissenting, the court of appeals reversed, holding that our constitution creates a cause of action for punitive damages which is in no way dependent upon Fuller's entitlement to compensatory relief. 874 S.W.2d 958. We reverse the judgment of court of appeals.

I.

The former Workers' Compensation Act, which governs this dispute, provided, in relevant part:

See Acts 1963, 58th Leg., p. 1132, ch. 437, § 1, repealed by Acts 1989, 71st Leg., 2nd C.S., ch. 1, § 16.01(7) to (9).1 Fuller argues that the Texas Constitution, on its face, provides for a punitive damages cause of action. The disputed provision reads:

Tex. Const. art. XVI, § 26 (Vernon 1993). Juxtaposing this provision with the Workers' Compensation Act, Fuller argues that the legislature is powerless to impair her punitive recovery. We disagree.

We must first note that when the legislature acts, we presume that it has acted constitutionally. Spring Branch Ind. Sch. Dist. v. Stamos, 695 S.W.2d 556, 558 (Tex. 1985); Robinson v. Hill, 507 S.W.2d 521, 524 (Tex.1974). Thus, the burden is Fuller's to demonstrate some constitutional infirmity. We further note that a constitutional provision must be interpreted in light of the historical context in which it was enacted. Director of Dep't of Agriculture & Environment v. Printing Indus. Ass'n, 600 S.W.2d 264, 267 (Tex.1980); Mumme v. Marrs, 120 Tex. 383, 40 S.W.2d 31, 35 (1931). To understand this constitutional provision which is unique to our state constitution, "a page of history is worth a volume of logic." New York Trust Co. v. Eisner, 256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963 (1921) (Holmes, J.). When the language of the constitution is read in light of the legal history existing at the time of its adoption, it is clear that its purpose was the resolution of ambiguities existing in the statutory and common law of punitive damages, not the extension of a right to punish which exceeds the right to compensatory relief.

In 1840, the Republic of Texas adopted the common law as its rules of decision. See Grigsby v. Reib, 105 Tex. 597, 153 S.W. 1124, 1125 (1913) (citing Laws 1840, p. 3, now codified at Tex.Civ.Prac. & Rem.Code Ann. § 5.001 (Vernon 1986)). The language of Article 16, Section 26 reveals an intent to resolve two controversies existing at common law.

At the time of this initial adoption it was well established at common law that there was no cause of action for wrongful death. See Russell v. Ingersoll-Rand Co., 841 S.W.2d 343, 345 (Tex.1992); Farmers' & Mechanics' Nat'l Bank v. Hanks, 104 Tex. 320, 137 S.W. 1120, 1122 (1911); Hendrix v. Walton, 69 Tex. 192, 6 S.W. 749 (1887). See also Pinchon's Case, 9 Coke 86b, 87a, 77 Eng. Rep. 859 (K.B. 1609). A prominent common law decision refusing to allow recovery for wrongful death did so on the basis that a death is solely a criminal matter and not cognizable in a civil court. See Baker v. Bolton, 1 Camp. 493, 170 Eng.Rep. 1033 (1808). Further, a division of authority existed in the middle and late 19th century concerning whether punitive damages were recoverable when the same wrong was punishable in a criminal proceeding. See W. Eggleston, Eggleston on Damages § 47 (1880); J. Sutherland, 1 Sutherland on Damages Ch. IX, p. 738 (1883).2 Article 16, Section 26 confronted these enigmas by making punitive damages recoverable "without regard to any criminal proceeding that may or may not be had in relation to the homicide." Tex. Const. Ann. art. 16, § 26 (Vernon 1993). In addition to answering these common law questions, the amendment undertook to resolve a statutory question.

In 1846, England abolished the common law bar against wrongful death actions with the adoption of Lord Campbell's Act. Texas soon followed with its own wrongful death act, similar in many respects to its English counterpart. See Act approved Feb. 2, 1860, 8th Leg., R.S., ch. 35, § 1, 1860 Tex.Gen. Laws 32, 4 H. Gammel, Laws of Texas 1394 (1898); Hendrix v. Walton, 69 Tex. 192, 6 S.W. 749, 750 (1887). One ambiguity common to the early wrongful death acts was whether they created a new cause of action in the heirs of the deceased, or whether they simply transmitted to the heirs a right to sue which had previously resided in the deceased. See Tex. Const.Ann. Art. 16, § 26, interp. commentary (Vernon 1993). If the former were correct, the right to punitive damages would die with the deceased. If the latter, then the heirs could pursue punitive damages. Id. See also General Chemical Corp. v. De La Lastra, 852 S.W.2d 916, 922-23 (Tex.1993). With a statutory cause of action for compensatory damages already in place, the constitution was amended to allow for punitive damages in favor of the wrongful death beneficiaries. The question soon arose whether this amendment, in addition to clarifying the survival question, also granted a punitive recovery independent of compensatory relief. As soon as it arose, the question was answered in the negative.

In Ritz v. City of Austin, 1 Tex.Civ.App. 455, 20 S.W. 1029 (1892, writ ref'd), the court of civil appeals was confronted with wrongful death claimants who were not entitled to compensatory damages because the wrongful death statute, as then construed, did not allow a right of action against a municipal corporation. As in this case, the plaintiffs contended that the constitutional provision granted the remedy of exemplary damages, independent of the statute which provided compensatory relief. The court disagreed, stating:

Id. at 1031 (emphasis added).3 Thus, the reason for adoption of the constitutional provision was to allow for exemplary damages under the Wrongful Death Act because of an early interpretation that such damages were not authorized by the Act. See Hofer v. Lavender, 679 S.W.2d 470 (Tex.1984). It did not abrogate the common law requirement of actual damages and extend the remedy to those with no cause of action under the Act.

The manifest purpose of the language of this constitutional provision is to expressly resolve common law and statutory ambiguity.4 Fuller's proposed interpretation would have us read the constitution to allow punitive damages without regard to whether the heirs have suffered a compensable injury. This would effectively add, by inference, a clause to our constitution allowing the punishment of a party from whom the plaintiff is not entitled to extract compensation. We decline to do so for several reasons. First, such a clause would be inconsistent with the long settled rule that a plaintiff must show himself entitled to compensatory relief before punitive damages are recoverable. See, e.g., Wright v. Gifford-Hill & Co., 725 S.W.2d 712, 713-14 (Tex.1987); Nabours v. Longview Sav. & Loan Ass'n, 700 S.W.2d 901, 903-05 (Tex.1985); Fort Worth Elevators Co. v. Russell, 123 Tex. 128, 70 S.W.2d 397, 409 (1934); Traweek v. Martin-Brown Co., 79 Tex. 460, 14 S.W. 564, 565 (1890); Flanagan v. Womack, 54 Tex. 45, 50 (1880). Second, it would be inconsistent with the historical setting in which the constitution was enacted, some of which has been recounted above.5 Third, if the immunity granted by the Workers' Compensation Act must yield to this constitutional provision, are statutes of limitation and other legislatively created bars to recovery also constitutionally infirm? We presume the legislature acted constitutionally there as here. If the provision were so inconsistent with its historical context, and if its intention was to overturn the common law "actual damages" rule, we believe it would not have done so by inference; rather, it would have done so expressly, as it did with the survival and criminal merger issues. Fuller has thus failed to carry her burden.

II.

Fuller lastly argues that Travelers' immunity under the Workers' Compensation Act violates the Texas Open Courts Provision. See Tex. Const. art. I, § 13 (Vernon 1984). We disagree.

Generally speaking, the Open Courts Provision restricts the legislature's ability to withdraw all legal remedies from one having a cause of action well established and well defined in the common law. See Lebohm v. City of Galveston, 154 Tex. 192, 275 S.W.2d 951 (1955). The Open Courts Provision has no applicability whatsoever to a cause of action for wrongful death, inasmuch as such a cause of action did not exist at common law. Rose v. Doctors Hospital, 801 S.W.2d 841, 845 (Tex.1990); Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 355-56 (Tex. 1990). To the extent that punitive damages are a common law remedy, they are also dependent at common law upon actual damages. Thus, no constitutional infirmity is created when the legislature removes a purely statutory right to compensation under the wrongful death act.

Because the Workers' Compensation Act bars Fuller's cause of action for compensatory damages, and because Article 16, Section 26 guarantees the remedy of punitive damages only when a wrongful death beneficiary otherwise possesses a cause of action for compensatory relief, we reverse the judgment of the court of appeals and render judgment that Fuller take nothing.