Employee entitled to dismissal in auto accident case, but City must remain says 14th Court of Appeals.

City of Houston v. Ester Medina Owens, 14-12-00930-CV (Tex. App. – Houston [14th Dist.] September 24, 2013),

This is an interlocutory appeal from the denial of a plea to the jurisdiction in a case where a city police officer had a car accident and struck Owens. The Plaintiff sued both the City and the officer.  This case will be of primary interest to litigators since it deals primarily with Texas Tort Claim Act election of defendants. The trial court dismissed the employee under Tex. Civ. Prac. & Rem. Code §101.106(e) which states that if a plaintiff sues both the entity and the employee, the employee is entitled to immediate dismissal.

After the employee was dismissed, the City attempted to get dismissed under §101.106(b) which states the filing of suit against an employee bars suit against the entity. The trial court denied the plea and the City appealed.  The 14th Court of Appeals noted that this type of case was already addressed in Amadi v. City of Houston, 369 S.W.3d 254, 257–62 (Tex. App.—Houston [14th Dist.] 2011, pet. denied) which essentially held that the City could not escape liability after it elected to have the employee dismissed under §101.106(e).  Instead of analyzing the legal reasoning behind the decision, the court focused on the fact it was bound by the Amadi panel decision and no change in statute or case law supports reconsidering it.

While I believe the result is probably the correct one, the reasoning in Amadi is flawed since the wording could be used to expand a waiver beyond what the Legislature intended. Instead, a litigator should look to the reasoning within Tex. Adjutant General’s Office v. Ngakoue, No. 11-0686, 2013 WL 4608867,  2013 Tex. LEXIS 681 (Tex. August 30, 2013) which held that an election under §101.106(e) does not trigger subsection (b) because subsections (e) and (f) are concessions the employee is sued in his official capacity only.

If you would like to read this opinion click here.