Tex. Adjutant General’s Office v. Ngakoue, No. 11-0686, 2013 WL 4608867, 2013 Tex. LEXIS 681 (Tex. August 30, 2013),
Even though this is a Texas Supreme Court case (and is important), it is primarily of interest to litigators. In this case the Texas Supreme Court interprets various provisions of the Texas Tort Claims Act’s election-of-remedies in which a plaintiff must elect which defendant to sue under Tex. Civ. Prac. & Rem. Code §101.106. Essentially, the Court noted that §101.106 is intended to focus suits on the proper defendant – the governmental entity and protects the employees.
Ngakoue sued Franklin Barnum for damages arising out of an automobile accident. Barnum was an employee of the Texas Adjutant General’s Office (“TAGO”) and moved to be dismissed under §101.106(f) which states an employee is entitled to be dismissed if acting within the scope of their employment and the entity must be substituted in. The Plaintiff added TAGO to the suit but refused to dismiss Barnum. TAGO filed a plea to the jurisdiction arguing that because Ngakoue failed to follow the procedures by dismissing Barnum before adding TAGO, both defendants should be dismissed. The trial court denied the plea. The court of appeals dismissed Barnum but affirmed the denial as to TAGO and TAGO filed this petition for review.
The Supreme Court agreed Barnum was entitled to dismissal. It also held that TAGO must remain in the suit, but for very different reasons than those cited by the court of appeals. The Court held the intend of §101.106 is to “force a plaintiff to decide at the outset whether an employee acted independently and is thus solely liable, or acted within the general scope of his or her employment such that the governmental unit is vicariously liable.” As a result, it must favor an interpretation of the section which “clearly leads to the early dismissal of a suit against an employee when the suit arises from an employee’s conduct that was within the scope of employment.” Following this line of reasoning, the Court held that a suit against an employee acting within the scope of his employment is considered (for TTCA purposes under §101.106(f)) to be a suit against the official in his official capacity, not the employee. While normally, an employee is liable for his own torts, even if acting for an employer, the Legislature foreclosed suit under the TTCA against an employee in his individual capacity if acting within the scope of his employment with a governmental unit. The choice of language in subsection (f) therefore interacts with subsection (b). In other words, under (b) a suit against an individual employee bars suit against the entity, but since under (f) the employee is not an individual employee but an employee in his official capacity, subsection (b) is not triggered. So, if an employee is dismissed under (f), the entity cannot utilize subsection (b) to avoid liability. The Court further held the reasoning applies equally under subsection (e) when both entity and employee are sued simultaneously since an entity’s motion to dismiss the employee is a confirmation the employee was acting within this scope of employment.
The opinion prompted a dissent which reasoned a more stringent interpretation is necessary and failure to comply with the procedural requirements of subsection (f) equates to a failure to follow the requirements to sustain a waiver of immunity.
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