Since volunteer firefighter is not an employee, no waiver of immunity exists for his car accident

Freer Volunteer Fire Department v. April Wallace, Individually and Next Friend of Gabriella Wallace, 04-16-00373-CV (Tex. App— San Antonio, October 5,2016)

This is a Texas Tort Claims Act case where the involving a volunteer fire department and whether an individual is a volunteer or employee. The San Antonio Court of Appeals reversed the denial of the department’s plea to the jurisdiction and dismissed the claims.

Martin Martinez, Jr. was driving an ambulance owned by the Freer Volunteer Fire Department (“FVFD”) in the course of transporting a suspected heart attack patient to a hospital. Martinez and a vehicle driven by April Wallace collided in an intersection. Wallace sued FVFD and Martinez. FVFD filed a motion to dismiss Martinez under §101.106(e). FVFD filed an answer and a plea to the jurisdiction asserting Martinez was acting in the course and scope of his employment as a volunteer fireman for FVFD and immune; therefore, FVFD was immune from suit. Wallace dismissed Martinez. FVFD then asserted Martinez was a volunteer and was not in the paid service of FVFD despite a $7 to $8 stipend. Wallace asserted Martinez was a paid employee and therefore his actions waived immunity. Further, Wallace asserted FVFD could not go back on it’s assertion Martinez was an employee and not a volunteer made in initial motions. The trial court denied the plea and FVFD appealed.

As a volunteer fire department, FVFD is an emergency service organization included within the Act’s definition of governmental unit. TEX. CIV. PRAC. & REM. CODE ANN. §101.001(1)(A), (3)(C) (West Supp. 2016). A governmental unit’s immunity is waived for personal injury proximately caused by the negligence of an employee acting within his scope of employment if the injury arises from the operation or use of a motor-driven vehicle. However, a volunteer is not an employee. Under the Fair Labor Standards Act, “[v]olunteers may be paid expenses, reasonable benefits, a nominal fee, or any combination thereof, for their service without losing their status as volunteers.” 29 C.F.R. § 553.106(a). The court held Martinez is a volunteer and his acts do not waive immunity. The original assertions he was an employee for §101.106 may lead to an estoppel argument, but does not change the character of his employment. In the instant case, the joint motion to dismiss referred to Martinez as both a volunteer employee and an employee. The court held that it does not condone the tactics used by FVFD, but such tactics do not equate to a waiver-by-conduct for immunity purposes. Given the facts, no employee was present to waive immunity so the trial court should have granted the plea.

If you would like to read this opinion click here. The Panel includes Chief Justice Marion, Justice Angelini, and Justice Chapa. Chief Justice Marion delivered the opinion of the court. Attorney listed for FVFD is William J. Granberry. Attorney listed for the Wallace is Tammy Faye Bruch.

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