Ashley Nicole Schneider, Individually, and as Representative of the Estate of Justine James Schneider, and as Next Friend of Rebecca Lynn Mignon Schneider, Emily Nicole Dean Schneider, and Clara Jean Rose Schneider, All Minor Children v. Quintana Energy Services, LLC F/K/A Quintana Energy Services, LP Quintana Energy Services Inc. And Qes Pressure Control, LLC

Affirmed and Majority and Dissenting Opinions filed May 30, 2024.

In The

Fourteenth Court of Appeals

NO. 14-22-00803-CV

ASHLEY NICOLE SCHNEIDER, INDIVIDUALLY, AND AS
REPRESENTATIVE OF THE ESTATE OF JUSTIN JAMES SCHNEIDER,
DECEASED, AND AS NEXT FRIEND OF REBECCA LYNN MIGNON
SCHNEIDER, EMILY NICOLE DEAN SCHNEIDER, AND CLARA JEAN
ROSE SCHNEIDER, ALL MINOR CHILDREN, Appellant
V.
QUINTANA ENERGY SERVICES, LLC F/K/A QUINTANA ENERGY
SERVICES, LP; QUINTANA ENERGY SERVICES INC.; AND
QES PRESSURE CONTROL, LLC, Appellees

On Appeal from the 165th District Court
Harris County, Texas
Trial Court Cause No. 2019-58887

MAJORITY OPINION

In this appeal from a summary judgment in a workers’ compensation death
case, appellant Ashley Nicole Schneider, individually and in representative
capacities, argues that the trial court erred in dismissing her claims because
appellees Quintana Energy Services, LLC f/k/a Quintana Energy Services, LP
(“QES LLC”), Quintana Energy Services Inc. (“QES Inc.”), and QES Pressure
Control, LLC (“QESPC”) failed to establish as a matter of law that Oklahoma’s
Administrative Workers’ Compensation Act barred appellants’ claims against
them.

For the reasons explained below, we affirm the judgment.

Background

In 2018, Justin Schneider died in Oklahoma after the commercial crane truck
he was driving suffered a tire blow-out, veered out of control, and collided with
another vehicle. Justin was driving the truck in the course of his employment with
QESPC. It is undisputed that Justin’s wife, Ashley, has received and continues to
receive workers’ compensation benefits as a result of Justin’s death.

In 2019, Ashley filed suit against QES Inc., alleging negligence and gross
negligence.1 Although Ashley is a resident of Oklahoma (as was Justin, during his
lifetime) and the accident occurred in Oklahoma, Ashley filed suit in Harris
County, Texas, because QES Inc. was alleged to be headquartered in Harris
County.

After QES Inc. answered and filed a verified plea that it was not a proper
defendant because Justin was employed by QESPC, and that it was merely a parent
company of QESPC, Ashley added QESPC and QES LLC as defendants.2

1
Ashley filed suit in her individual capacity, in her capacity as the representative of
Justin’s estate, and as next friend of her and Justin’s three minor children, Rebecca Lynn Mignon
Schneider, Emily Nicole Dean Schneider, and Clara Jean Rose Schneider. We refer to all
appellants collectively as “Ashley.”
2
According to Ashley’s Third Amended Petition, QES LLC “owns 100% of, is a member
of, and/or is management” of QESPC, and QES Inc. is the “Governing Person” of QES LLC.

2
The three appellees filed a joint traditional motion for summary judgment,
arguing that Oklahoma law applies to Ashley’s claims and that Oklahoma’s
Administrative Workers’ Compensation Act (the “Act”) contains an exclusive
remedy provision that bars Ashley’s negligence and gross negligence claims.
Appellees noted that, unlike Texas, Oklahoma’s workers’ compensation scheme
does not recognize an exception to the exclusivity bar for gross negligence.3
Appellees argued that the only potentially applicable exception to Oklahoma’s
exclusivity bar was for a claim of “intentional tort.” See Okla. Stat. tit. 85A,
§ 5(B)(2). Although Ashley’s then-live pleading did not assert a claim against any
appellee for an intentional tort, appellees argued in their motion that the summary-
judgment evidence precluded any recovery for an intentional tort under Oklahoma
law.

Ashley later amended her petition to delete her claim for gross negligence
and add a claim for “intentional torts,” citing the relevant Oklahoma statute.
Ashley did not materially change her underlying factual allegations against
appellees. Ashley filed a response to the summary-judgment motion, arguing that
Oklahoma substantive law applied and that genuine and material fact issues
precluded summary judgment on her intentional tort claim against appellees.

The trial court granted appellees’ motion and rendered judgment that
Ashley’s “claims against [appellees] are dismissed with prejudice.” Ashley timely
appealed.

3
See Tex. Lab. Code § 408.001(b) (“This section does not prohibit the recovery of
exemplary damages by the surviving spouse or heirs of the body of a deceased employee whose
death was caused by an intentional act or omission of the employer or by the employer’s gross
negligence.”).

3
Analysis

Ashley contends that the summary judgment is error because appellees
failed to conclusively prove the exclusive remedy defense under the Act. Ashley
argues that she presented evidence from which a reasonable jury could find that
appellees committed an intentional tort under Oklahoma law.4

A. Choice of law

Texas applies the “most significant relationship” test described in the
Restatement of Conflict of Laws to determine the particular substantive law that
governs a case. See Restatement (Second) of Conflict of Laws §§ 6, 145 (Am. L.
Inst. 1971); see also Tex. Civ. Prac. & Rem. Code §71.031(c) (in action for
damages for death or personal injury occurring out of state, “[t]he court shall apply
the rules of substantive law that are appropriate under the facts of the case”). In a
specific area of law, such as that presented in today’s case, matters to be
considered in determining applicable law include: (1) the place where the injury
occurred; (2) the place where the conduct causing the injury occurred; (3) the
residence or place of incorporation and place of business of the parties; and (4) the
place where the relationship between the parties is centered. See Restatement
(Second) of Conflict of Laws § 145(2). This determination involves a question of
law. Hughes Wood Prods., Inc. v. Wagner, 18 S.W.3d 202, 204 (Tex. 2000).

As all parties acknowledged in the trial court, Oklahoma is the state with the
“most significant relationship” to the injury and the lawsuit. Ashley is a resident of
Oklahoma; the accident occurred in Oklahoma; and Oklahoma is the place where
the conduct allegedly causing the injury occurred. Therefore, we apply Oklahoma
law to the substantive question of liability and Texas law to procedural questions.

4
Ashley does not challenge the dismissal of her negligence claims against appellees.

4
See Arkoma Basin Expl. Co. v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d 380, 387-90
(Tex. 2008) (applying Texas law to procedural matters including preservation of
error and objections to and sufficiency of expert testimony and Virginia law related
to fraud claim).

B. Oklahoma’s Administrative Workers’ Compensation Act

The Act requires that every employer and every employee:5

shall be subject and bound to the provisions of the Administrative
Workers’ Compensation Act and every employer shall pay or provide
benefits according to the provisions of this act for the accidental
injury or death of an employee arising out of and in the course of his
or her employment, without regard to fault for such injury, if the
employee’s contract of employment was made or if the injury
occurred within this state.
Okla. Stat. tit. 85A, § 85A-3(A). Under the Act’s exclusive remedy provision, the
rights and remedies granted to an employee subject to the provisions of the Act are
“exclusive of all other rights and remedies of the employee, his legal
representative, dependents, next of kin, or anyone else claiming rights to recovery
on behalf of the employee against the employer, or any principal, officer, director,
employee, stockholder, partner, or prime contractor of the employer on account of
injury, illness, or death.” Id. § 5(A).

The exclusive remedy provision will not apply, however, if “the injury was
caused by an intentional tort committed by the employer.” Id. § 5(B)(2). Section
5(B)(2) further explains,

An intentional tort shall exist only when the employee is injured as a
result of willful, deliberate, specific intent of the employer to cause
5
Substantive rights in workers’ compensation law become fixed on the date of injury. Wells v.
Okla. Roofing & Sheet Metal, L.L.C., 457 P.3d 1020, 1030 (Okla. 2019). The Act governs
Ashley’s claims against Justin’s employer. Okla. Stat. tit. 85A, § 85A-3(C) (applies to injuries
and deaths occurring on or after February 1, 2014).

5
such injury. Allegations or proof that the employer had knowledge
that the injury was substantially certain to result from the employer’s
conduct shall not constitute an intentional tort. The employee shall
plead facts that show it is at least as likely as it is not that the
employer acted with the purpose of injuring the employee. The issue
of whether an act is an intentional tort shall be a question of law.

Id.
The intentional tort exception is key to today’s case. The Supreme Court of
Oklahoma interpreted this exception in Wells v. Oklahoma Roofing & Sheet Metal,
L.L.C., 457 P.3d 1020 (Okla. 2019). There, the court held that “the willful,
deliberate, specific intent of the employer to cause injury” will constitute an
intentional tort. Id. at 1029. Additionally, and notwithstanding seemingly contrary
language in section 5(B)(2), the court held that an employer’s intentional acts taken
with the knowledge that injury is “substantially certain to occur” are also
intentional torts. Id. As the court explained, “[a]n employer’s ‘specific intent’ to
injure, or knowledge that an injury is ‘substantially [certain] to result,’ equate to an
intentional tort. Both require a knowledge of foreseeable consequences and are
interpreted to mean intentionally knowing culpable acts.” Id. at 1027.
Importantly, to establish an intentional tort based on an employer’s knowledge that
injury is “substantially certain” to result from its conduct, “the employer not only
had to intend the act that caused the injury,” but also must have known “that the
injury was substantially certain to follow.” Id. at 1025 (citing Parret v. UNICCO
Serv. Co., 127 P.3d 572, 579 (Okla. 2005)). In all events, the key is the actor’s
“subjective intent to cause harm” and the claimant “must prove that the willful,
deliberate, culpable act was intentional.” Id. at 1027. Thus, “the employer must
have determined to injure an employee and used some means appropriate to that
end; and that there must be a deliberate intent.” Id. at 1028. This showing may be
made with circumstantial evidence. Id. at 1027.

6
C. Did the trial court reversibly err in granting summary judgment to
appellees?
1. Standard of review

Our review of a summary judgment is de novo. Valence Operating Co. v.
Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). Because the trial court’s summary
judgment does not specify the ground or grounds on which it was granted, we
uphold the court’s judgment if properly supported by any ground asserted in the
motion. See Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989). When reviewing
a summary judgment, we take as true all evidence favorable to the nonmovant, and
we indulge every reasonable inference and resolve any doubts in the nonmovant’s
favor. Dorsett, 164 S.W.3d at 661.

A summary judgment is proper if there is no genuine issue as to any material
fact and the moving party is entitled to judgment as a matter of law. Tex. R. Civ.
P. 166a(c). A defendant who conclusively negates a single essential element of a
cause of action or conclusively establishes an affirmative defense is entitled to
summary judgment on that claim. Frost Nat’l Bank v. Fernandez, 315 S.W.3d
494, 508-09 (Tex. 2010). Once the movant produces evidence entitling it to
summary judgment, the burden shifts to the nonmovant to present evidence raising
a genuine issue of material fact. Walker v. Harris, 924 S.W.2d 375, 377 (Tex.
1996).

2. QESPC

We first consider whether QESPC, Justin’s employer, established its right to
summary judgment. As a movant for traditional summary judgment, QESPC had
the initial burden of proving entitlement to judgment as a matter of law. Tex. R.
Civ. P. 166a(c); see City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356
(Tex. 2000).

7
In her live pleading, Ashley asserted that, at the time of the accident, Justin
was driving a crane truck when the front, driver’s side tire (or “steer tire”) failed
due to poor maintenance, which caused Justin to lose control of the truck. Ashley
alleged that one or more of the appellees: knew of the unreasonably dangerous and
hazardous condition of the subject tire prior to the accident because the tire
suffered from a lack of maintenance; knew that the front steer tires needed to be
replaced due to their hazardous conditions; chose not to replace them and did not
inform Justin about the hazardous condition of the tires; and knew that improperly
maintained steer tires lead to collisions.

a. QESPC’s evidence

In the motion for summary judgment, QESPC established that Justin was its
employee whose death occurred in Oklahoma during the course of his
employment; that QESPC had secured workers’ compensation insurance coverage;
and that Ashley filed a workers’ compensation claim and received death benefits
under the insurance policy. Therefore, QESPC demonstrated that the Act applies.
Okla. Stat. tit. 85A, § 3(A).

Citing the Act’s exclusive remedy provision, QESPC also argued that
Ashley’s district court claims were barred. Id. § 5(A). QESPC noted the exception
to the exclusive remedy provision when the injury is caused by an employer’s
intentional tort. Id. § 5(B)(2). QESPC urged that it did not commit an intentional
tort under Oklahoma law because it had no knowledge or reason to believe that any
injury to Justin was substantially certain to occur, much less foreseeable. QESPC
relied on the following evidence: (1) QESPC operated and maintained crane
trucks as part of its operations, including the one at issue in the underlying suit:
(2) the tires on the crane truck passed inspection in 2017 and several times in 2018,
including a third-party inspection on the day of the accident; and (3) Justin

8
performed a pre-trip inspection on the crane truck on the day of the accident and
reported there were no operational deficiencies on or in the crane truck, after
specifically inspecting the tires.6

QESPC also attached an affidavit from a retained tire expert expressing his
opinion that the remains of the crane truck and its tires reflected proper tire
maintenance. He further opined that his inspection of the detached tire shreds did
not reflect any apparent conditions that would have suggested tire failure was
imminent.

The evidence attached to the motion for summary judgment conclusively
established that QESPC had no knowledge of an unreasonably dangerous tire
condition, let alone a substantial certainty that the tire would fail and cause injury
or death. Therefore, we conclude that QESPC met its initial summary-judgment
burden by conclusively demonstrating that it did not commit an intentional tort and
thus the exclusive remedy exception did not apply.

We note that Ashley amended her petition after appellees filed their
summary-judgment motion. The amended pleading—the Third Amended
Petition—deleted the claim for gross negligence and added a claim for intentional
tort. When a trial court grants a summary judgment on a claim not addressed in the
summary-judgment motion, it generally commits reversible error. See Lehmann v.
Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001). When the summary-judgment
movant fails to amend its motion after the nonmovant amends her petition,
however, the summary judgment can still be affirmed if the original motion is
broad enough to encompass the newly asserted claim. Bridgestone Lakes Cmty.

6
The crane truck had been at a third-party repair yard for some months before the day of
the accident. The third-party servicing company performed an inspection of the crane truck
before Justin arrived to pick it up. Justin also performed a pre-trip inspection of the crane truck
before driving. Neither inspection revealed any concerns with the condition of the tires.

9
Improvement Ass’n, Inc. v. Bridgestone Lakes Dev. Co., 489 S.W.3d 118, 123
(Tex. App.—Houston [14th Dist.] 2016, pet. denied); see Coterill-Jenkins v. Tex.
Med. Ass’n Health Care Liability Claim Tr., 383 S.W.3d 581, 592 (Tex. App.—
Houston [14th Dist.] 2012, pet. denied). Appellees’ motion for summary judgment
specifically addressed the intentional tort exception to the Act’s exclusive remedy
provision and thus was broad enough to encompass the newly asserted claim in
Ashley’s Third Amended Petition.

b. Ashley’s evidence

The summary-judgment burden shifted to Ashley to produce evidence
raising a genuine issue of material fact that QESPC knew that the tire on the crane
truck was substantially certain to fail and injure Justin. See Wells, 457 P.3d at
1027-28.

Ashley first directs us to the deposition of former QESPC employee, Dustin
Easter. After the accident, Justin’s supervisor, Charles Berryman, told Easter that
Justin had called Berryman before he started the trip and “made a comment about a
tire being bad and [Justin] was told it will make it -- you know, it’s okay to drive
it.” According to Easter, Justin told Berryman that “the tires are not too good on
this crane,” but “was told they’ll make it back to Elk City.” Another witness,
Brody Rice, said, “I just remember people . . . in the shop talking that Justin called
and said he didn’t want to drive that crane.”7

7
QESPC objected to this evidence on hearsay grounds. The record, however, does not
reflect a ruling on QESPC’s objection or an exception by QESPC to the court’s refusal to rule.
See Tex. R. App. P. 33.1(a). Because an inadmissible-hearsay complaint raises a defect in form
rather than a defect in substance, a party must present this complaint to the trial court and obtain
an explicit or implicit ruling. Okpere v. Nat’l Oilwell Varco, L.P., 524 S.W.3d 818, 824 (Tex.
App.—Houston [14th Dist.] 2017, pet. denied).

10
Ashley also highlights evidence of poor tire maintenance by QESPC.
According to QESPC division supervisor Shawn McNinch, the shelf life of the
steer tires on a crane truck is only two years, and out-of-date tires should be
changed upon discovery due to an “excessive risk of failure,” because “a tire can
look good as far as tread but still be too old to be functional.” According to
McNinch, within the oilfield service industry, checking the “born-on” date—a
mark indicating what year a tire was manufactured—is a critical part of
maintaining tires. As McNinch explained, oilfield service providers recognized
that treating tires as “new” without knowing their born-on dates presents an
important safety issue; after “too many tires [were] getting blown, too many
wrecks were happening,” so “born on dates became a very important deal” for “all
the oilfield service company industry related [providers,] even crane companies.”
QESPC’s Heather King added that QESPC had “identified a few tires that might
have been at a facility for a good year but never installed and so even though we
were technically getting a brand new set of tires they might be a year old.”

An investigation by QESPC after the accident revealed that the tire that
failed was purchased in 2015, though its manufacture date was unknown.8 Thus,
the tire was at least three and one-half years old at the time of Justin’s accident.
QESPC did not keep and maintain records of manufacture dates.

According to Ashley, at the time of Justin’s accident, QESPC did not have a
true “preventative maintenance” program. Instead, for budgetary reasons, QESPC
had a practice of “let’s wait and only spend the money when something breaks.”
She argues that QESPC had no procedures in place before Justin’s death to track
the life of tires and regularly replace those found to be out of date—though the

8
It was undisputed that the tire was sufficiently damaged in the accident that its
manufacture date was no longer legible.

11
procedures adopted in the wake of his death show this would have been feasible.
Ashley emphasizes that QESPC implemented a preventative-maintenance program
after Justin’s death that tracked the manufacture dates of tires and required steer
tires to be replaced two years after installation.

There is evidence that QESPC was aware that an accident or injury could
occur if a steer tire failed. Rodney Vaught, a QESPC manager, testified that failure
of a steer tire on a crane truck driving at highway speed makes a crane truck “very
hard to control”:

Q . . . . [T]he maintenance of those steer tires is of paramount
concern because of the likelihood of serious injury or death
should they fail while being operated at highway speeds, true?
...
A. Yeah. They can -- if they fail you can have a bad -- bad
accident if it fails.

Two months before Justin’s accident, QESPC’s Department of
Transportation Coordinator, Ashley Hargrove, found a “real bad” tire on one of the
company’s trucks and told staff at an Elk City safety meeting that the mechanics
needed to inspect the tires and probably replace some.

Ashley’s retained engineering expert, T.J. Tennent—a former
Bridgestone/Firestone engineer—examined the remains of the subject steer tire and
determined that it failed due to improper maintenance, which he said “is usually
related to improper air pressure.” Tennent opined that “tire failures were a
foreseeable consequence of failing to properly maintain and monitor the steer
tires,” and that “by failing to properly maintain and monitor the steer tire and other
tires on the crane truck, QES knew that tire failures were substantially certain to
result.” Tennent did not offer any testimony about the probability of a tire failure

12
given the age of the tire. Additionally, Tennent did not mention any condition of
the tire other than improper air pressure.

c. Ashley did not defeat QESPC’s right to summary judgment

As the Supreme Court of Oklahoma clarified in Wells, Oklahoma’s
understanding of “intentional” torts includes an actor’s deliberate, specific intent to
cause injury as well as an intentional act taken with the knowledge that injury is
substantially certain to result. Wells, 457 P.3d at 1025-27. As the court put it, the
“specific intent” and “substantial certainty” nomenclatures do not describe
different degrees of conduct but are the same thing. Id. at 1026,9 1027.10 To
establish that an employer acted intentionally, the claimant must show either that
the employer desired to bring about the injury, or that the employer intended the
act that caused the injury and knew that the injury was certain or substantially
certain to result. See id. at 1025 (citing Parret, 127 P.3d at 579). This requires
showing an employer’s “subjective appreciation” of the resulting injury. Id. at
1026. This is a “high standard and will rarely be met,”11 but a claimant may satisfy
this burden with circumstantial evidence. See Wells, 457 P.3d at 1027-28.

Ashley does not contend that QESPC desired to cause Justin’s injury.
Therefore, Ashley’s evidence had to show that (1) QESPC intended for Justin to

9
“According to Employer, § 12 attempts to redefine the existence of intentional torts to
only those that result from the ‘willful, deliberate, specific intent of the employer’ to cause injury
and excepts those injuries an employer knows are substantially certain to occur. Yet, that fallacy
is premised on the specific intent and substantial certainty nomenclatures, commonly
misunderstood as one being different than the other. They are not. ‘[W]hat appears at first
glance as two distinct bases for liability is revealed on closer examination to be one and the
same.’” (Bold in original).
10
“The belief that one has a different level or degree of a tortious act, and thereby
concluding that specific intent and substantial certainty are different animals, is a fallacy.”
11
Parret v. UNICCO Serv. Co., No. CIV-01-1432-HE, 2006 WL 752877, at *4 (W.D.
Okla. Mar. 21, 2006).

13
drive the crane truck with the subject steer tire, and (2) QESPC knew that a blow-
out of the steer tire on Justin’s crane truck was certain or substantially certain to
follow. We believe Ashley’s evidence suffices as to the first aspect of the required
showing. Based on the phone call Justin made to his supervisor on the day of the
accident, and the response he received—that it was okay to drive and that he could
make it to Elk City—a jury could reasonable infer that QESPC intended for Justin
to drive on the tire.

The second aspect of the required showing is more problematic. Viewing
the summary-judgment evidence and reasonable inferences in the light most
favorable to Ashley, however, we conclude that the evidence is not sufficient to
create a genuine issue of material fact that QESPC knew that the steer tire on
Justin’s crane truck was certain or substantially certain to fail.

We reach this conclusion guided by Wells and other relevant Oklahoma law.
In Price v. Howard, for example, a plaintiff sued after her husband died in a plane
crash on the employer’s corporate plane. 236 P.3d 82, 85 (Okla. 2010). The court
held that the plaintiff had not met the “substantial certainty” standard on summary
judgment despite showing that the defendant knew the plane was too heavy, the
weather was poor, the aircraft had a new propeller system, and the defendant
violated restrictions on its operating limitations. Id. There was no evidence that
the defendant was ever advised of facts indicating that the flight would not be safe.
Id. at 90. Even willful violations of government safety regulations, the court
stated, do not rise to the level of an intentional tort. Id. (footnote omitted). The
court reasoned that although the defendant was aware the circumstances
substantially increased the likelihood of complications and that the defendant may
very well have acted recklessly, id. at 89-90, the plaintiff had not shown that the
employer “acted with the knowledge that [the crash] was substantially certain to

14
result from the employer’s conduct.” Id. at 90. The court observed that the
“substantial certainty” standard imposes a “formidable barrier” against recovery.
Id.

In Harrington v. Certified Systems, Inc., 45 P.3d 430 (Okla. Civ. App.
2000), a worker was injured when the floor of a drilling rig slid out of place and
struck him in the head. Id. at 431. The plaintiff opposed a motion for summary
judgment with evidence that the defendant’s supervisors who operated the rig
(1) knew that the rig floor did not fit properly; (2) were aware the floor could slide
out unless secured; (3) made a conscious decision not to secure the floor by means
that were readily available; and, importantly, (4) directed Harrington to work near
the rig without the protection of a hard hat, after denying his request to retrieve his
hard hat from a nearby storage room. Id. While recognizing that the evidence
raised fact questions on negligence and possibly gross negligence, id. at 436, the
court held that the defendant’s conduct did not rise to the level of an intentional act
that was substantially certain to result in the injury. Id.

The Tenth Circuit applied Oklahoma’s “substantial certainty” test in Monge
v. RG Petro-Machinery (Group) Co. Ltd., 701 F.3d 598 (10th Cir. 2012). That
case involved a piece of safety equipment on an oil rig called a “crown saver” that
the employer “was aware . . . was not operational.” Id. at 603, 608. Concluding
that the employee “may have had a meritorious claim to recover for his tragic
injuries outside of workers’ compensation if he were required to show that [the
employer] had knowledge of foreseeable risk, high probability, or even substantial
likelihood of injury,” the court held that “nothing short of [the employer’s]
knowledge of the substantial certainty of injury will do under” Oklahoma law. Id.
at 608 (quotation and alteration omitted).

15
Ashley cites Oklahoma decisions in which courts found fact questions
existed whether the employer knew injury was substantially certain to result from
the employer’s conduct. In Parret, the United States District Court for the Western
District of Oklahoma denied the employer’s summary-judgment motion after
determining that a fact question existed on the intentional tort exception. Parret,
2006 WL 752877, at *4.12 The decedent in Parret was electrocuted while working
on emergency light fixtures at a plant. Id. at *1. The plaintiff’s evidence showed
that the employer knew there were no current electrical prints or lockout/tagout
procedures for the emergency lighting system in the area where the decedent was
working and that it was aware that employees did not know how to disconnect the
power to the lights without serious adverse consequences. Id. at *4. A few months
before the decedent was killed, another employee received an electrical shock
while working on a similar lighting system. Id. Supervisors, moreover, not only
were aware that employees worked on the emergency lighting system while it
remained energized but directed them to do so. Id. There was evidence that
several employees refused to work on the emergency lights because they could not
be de-energized, but that supervisors would then direct the same work order to
other employees. Id. Apparently, this is what occurred as to the work assignment
given to the decedent. Faced with this evidence, the court denied the employer’s
summary-judgment motion and held that some evidence existed to raise a fact
question whether the employer intentionally engaged in specific acts when it knew
that injury was substantially certain to follow. See id.

Ashley also cites Torres v. Cintas Corp., 672 F. Supp. 2d 1197 (N.D. Okla.
2009), where the court denied summary judgment to the defendant when an
employee was killed after he climbed onto an energized conveyer belt to clear a
12
The district judge issued this decision after it received the Oklahoma Supreme Court’s
answers to certified questions in Parret, 127 P.3d 572. See Parret, 2006 WL 752877, at *3.

16
dryer jam and subsequently fell into the dryer. Id. at 1203, 1217. The court noted
conflicting evidence about whether the company knew employees were climbing
onto energized conveyer belts. Id. at 1211. The court also noted the undisputed
fact that the employer was aware of prior similar accidents involving employees
climbing onto energized conveyer belts at other plants. Id. The court concluded
that a fact question existed whether the employer knew with substantial certainty
that the employee could be injured by climbing on an energized conveyer belt and
failed to stop this practice. Id.

Another case on which Ashley relies is Tiger v. Verdigris Valley Electric
Cooperative, 410 P.3d 1007 (Okla. 2016). There, an employee died while working
on energized electrical equipment. The evidence showed that a metal barricade
surrounded an energized junction box, and the employee had to enter the barricade
with less than nineteen inches from the barricade and the door of the junction box.
Id. at 1012. The employee was made to perform the work even though he had no
experience or training in high-voltage installations. Id. The employer did not cut
the power, did not provide the employee with a safety insulation blanket, did not
use available measures to ensure that electricity did not reach the work area, and
did not remove the illegal metal barricade. The court held that a jury could find
that the employer knew with substantial certainty that at least one member of its
work crew would be injured or killed as a result of its intentional conduct or
omissions. Id.13

13
Ashley cites three other cases: Jordan v. Western Farmers Electric Cooperative, 290
P.3d 9 (Okla. 2012); Craft v. Graebel-Oklahoma Movers, Inc., 178 P.3d 170 (Okla. 2007); and
Kniss v. American Airlines, Inc., No. 18-CV-212-JED-JFJ, 2021 WL 4166341 (N.D. Okla. Jan.
26, 2021). Jordan and Kniss do not provide helpful guidance because they involved whether the
claimants had satisfied applicable pleading standards, not whether an employer was entitled to
summary judgment. Similarly, Craft is not on point because the plaintiff in that case did not
argue the intentional tort theory in response to the defendant’s summary-judgment motion, even
17
We conclude the present circumstances are closer to those discussed in
Price, Harrington, and Monge, rather than Ashley’s most compelling authority—
Parret, Torres, and Tiger. Ashley’s cases involved evidence that the employers
knew that employees were working on wires or equipment energized with
electricity; that employees were told not to shut off power; and that the employers
had knowledge of prior injuries from that same conduct.

Here, Ashley’s strongest evidence is Easter’s testimony that Justin called his
supervisor on the day of the accident to say that the tires on the crane truck were
“bad” or “not too good,” but he was told that “it’s okay” and “they’ll make it back
to Elk City.” No other evidence or testimony reveals what Justin may have meant
when he said the tires are “bad.” The record contains no other details concerning
the information communicated to Berryman about the tire’s condition such that a
fact finder could reasonably discern Berryman’s state of mind and find that he
believed, based on what Justin told him, that the steer tire on the crane truck was
substantially certain to fail if Justin drove the truck. In contrast to the authority
cited by Ashley, the record contains no evidence of relevant prior accidents.14
Additionally, though Hargrove found a “real bad” tire on one of the company’s
trucks two months before Justin’s accident and told staff at an Elk City safety
meeting that the mechanics need to inspect the tires and probably replace some,
this evidence reveals QESPC’s concern for employees’ safety, not an intent to
injure.15

though she presented evidence that sufficiently raised the question. The supreme court remanded
the case to the trial court.
14
Ashley alleges that the crane truck in question suffered a tire failure in 2017. We have
not been directed to any summary-judgment evidence supporting this assertion.
15
There is no evidence that the “bad” tire Hargrove saw was on the crane truck Justin
was driving because that crane truck was at a third-party repair yard two months before the
accident.

18
Ashley’s other evidence showed that QESPC knew that some tires were old
and that driving on them exposed its employees to a risk of significant injury. At
least one witness testified that QESPC resisted replacing old tires for cost reasons.
Ashley did not produce evidence that QESPC knew that allowing its employee to
drive a crane truck with a steer tire at least three years old was substantially certain
to result in injury or death to the employee.

Ashley’s expert, Tennent, stated that the steer tire failed due to excessive
heat resulting from insufficient tire pressure. He added that improper maintenance
is usually related to improper tire pressure. He did not say that the tire’s age
contributed in any way to the failure or that the tire should have been replaced
because of its age. His only mention of whether this tire was substantially certain
to fail was the following:

Based on the evidence I have reviewed, and my knowledge, training,
and experience, by failing to properly maintain and monitor the steer
and other tires on the crane truck, QES knew that tire failures were
substantially certain to result. QES also knew that tire failures were a
foreseeable consequence of failing to properly maintain and monitor
the steer tires on its crane truck. Such knowledge may be inferred
from QES’s conduct and all surrounding circumstances.
Tennent’s opinion that “QES knew that tire failures were substantially
certain to result” is conclusory and not probative because it is not tied to the factual
evidence discussed in his report—underinflated tires. See Schindler Elevator
Corp. v. Ceasar, 670 S.W.3d 577, 585 (Tex. 2023) (expert must link conclusions
to the facts and explain the basis of opinion).16 Moreover, there is no evidence that

16
“An expert’s testimony is conclusory when the expert asserts a conclusion with no
basis, when the basis offered provides no support for the opinion, or when the expert offers only
his word that the bases offered to support his opinion actually exist or support his opinion. An
expert must link his conclusions to the facts and explain the basis of his assertions. Asking the
jury to take the expert’s word for it because of his status as an expert will not suffice.” Id.

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QESPC was aware that the steer tire was improperly inflated. No witness
discussed the steer tire’s air pressure or claimed that the tire was underinflated.
Tennent’s opinion that “QES also knew that tire failures were a foreseeable
consequence of failing to properly maintain and monitor the steer tires” goes to
negligence, but it is insufficient to raise a fact question as to Oklahoma’s
intentional tort exception.

While Ashley’s evidence may create a genuine and material fact question
whether QESPC was negligent, or possibly grossly negligent—matters not before
us—it is not sufficient to justify a reasonable inference that QESPC desired to
injure Justin because it knew that a tire blow-out was a substantial certainty.
QESPC’s intentional acts may have set the stage for an accidental injury later, but
there is no evidence that QESPC had a subjective appreciation that the steer tire
was substantially certain to blow-out on this trip.

We overrule Ashley’s issue with respect to the claims against QESPC.

3. QES Inc. and QES LLC

Ashley asserts that the trial court erred in granting summary judgment for,
and dismissing her claims against, QES Inc. and QES LLC. Ashley argues that the
summary-judgment motion did not seek relief on behalf of those appellees and the
record does not establish that they may claim immunity under section 5 of the Act.
Therefore, Ashley seeks reversal as to those appellees because the trial court
impermissibly granted more relief than requested.

In response, QES Inc. and QES LLC contend on appeal that they are entitled
to the same protection as QESPC under the Act’s exclusivity provision because
they are alleged to be “stockholders” of QESPC, Justin’s employer. The
exclusivity provision states that an employee’s rights and remedies under the Act

20
are exclusive as to recovery against not only the employer but also “any principal,
officer, director, employee, stockholder, partner, or prime contractor of the
employer.” See Okla. Stat. tit. 85A, § 5(A) (emphasis added). Moreover, QES
Inc. and QES LLC urge that Ashley sued them based only on their alleged acts in
their role as Justin’s employer.

Although the summary-judgment motion states that it is on behalf of all
three appellees and requests dismissal of all of Ashley’s claims based on
Oklahoma’s exclusive remedy provision, QES Inc. and QES LLC are referenced
only in the introductory section. The substantive argument and the prayer mention
only QESPC. QES Inc. and QES LLC presented no legal argument or evidence
establishing that they were entitled to summary judgment under the Act’s exclusive
remedy provision based on their alleged status as “stockholders.”

By dismissing Ashley’s claims against QES Inc. and QES LLC, the trial
court therefore granted more relief than specifically requested. It is generally error
for a trial court to grant more relief than a summary-judgment movant requests in a
motion. See G & H Towing Co. v. Magee, 347 S.W.3d 293, 298 (Tex. 2011) (per
curiam). Generally, we may not affirm a summary judgment on grounds not
presented in the motion. Rush v. Barrios, 56 S.W.3d 88, 97 (Tex. App.—Houston
[14th Dist.] 2001, pet. denied). The summary judgment is therefore erroneous as
to QES Inc. and QES LLC. See Tex. R. Civ. P. 166a(c); Bridgestone Lakes Cmty.
Improvement Ass’n, 489 S.W.3d at 123.

As the appellant, it is Ashley’s burden to demonstrate that this error is
reversible. Ford Motor Co. v. Castillo, 279 S.W.3d 656, 667 (Tex. 2009)
(complaining party bears burden of showing harmful error on appeal to obtain
reversal); Grimm v. Grimm, 864 S.W.2d 160, 163 (Tex. App.—Houston [14th

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Dist.] 1993, no writ) (“The burden of showing reversible error is on appellant as
the complaining party.”); see Tex. R. App. P. 44.1(a).

When a trial court grants a summary judgment on a claim not addressed in
the summary-judgment motion, the trial court’s error is generally reversible. See
Lehmann, 39 S.W.3d at 200. The error is harmless and not reversible, however,
“when the omitted cause of action is precluded as a matter of law by other grounds
raised in the case.” Magee, 347 S.W.3d at 297-98 (citing Tex. R. App. P. 44.1(a)).
This is a limited exception and applies, for example, if the defendant has
conclusively disproved an ultimate fact or element which is common to all causes
of action alleged. Id. at 297; see Sweet Water Well Servs., LLC v. W. Houston
Airport Corp., No. 14-18-00596-CV, 2020 WL 5048356, at *3 (Tex. App.—
Houston [14th Dist.] Aug. 27, 2020, no pet.) (mem. op.). In that circumstance, the
summary judgment may be affirmed. Magee, 347 S.W.3d at 297.

We conclude this exception applies here. Ashley’s intentional tort
allegations and argument against QES Inc. and QES LLC are the same as those she
asserts against QESPC, namely that QES Inc. and QES LLC committed an
intentional tort for the same reasons and in the same way that QESPC committed
an intentional tort. Ashley’s Third Amended Petition, summary-judgment
response, and appellate brief treat all three appellees as one and make no
allegations that distinguish the conduct of one appellee from another. Based on her
invocation of Oklahoma’s workers’ compensation intentional torts exception
against all three appellees, she bases her claim to recovery from all appellees on
the employment relationship. As explained above, QESPC established its
entitlement to judgment as a matter of law on all Ashley’s claims under the Act’s
exclusive remedy provision. The evidence conclusively demonstrates that QESPC
did not commit an intentional tort that resulted in Justin’s death, and Ashley’s

22
evidence does not raise a genuine issue of material fact showing otherwise. This
showing by QESPC “conclusively disproved an ultimate fact or element which is
common to all causes of action alleged” against all appellees. See id. Ashley has
not alleged or presented evidence to raise a genuine issue of material fact that any
appellee committed an intentional tort under Oklahoma law. Thus, the Act’s
exclusive remedy provision bars Ashley’s claims against QES Inc. and QES LLC.
The trial court’s grant of summary judgment to these appellees despite their failure
to move for summary judgment on the exclusive remedy ground, though error, is
not reversible error.

The Oklahoma Supreme Court has held that the Act does not prohibit an
employee from maintaining a common-law action against a negligent third person
outside the employer-employee relationship. Weber v. Armco, Inc., 663 P.2d 1221
(Okla. 1983). More recently, in Odom v. Penske Truck Leasing Co., the court
reiterated that an employer could act in a “dual capacity” that might give rise to
liability in some circumstances. 415 P.3d 521, 527 (Okla. 2018). The court stated,
“an employer who was generally immune from tort liability might become liable to
their employee as a third-party tortfeasor; if they occupied, in addition to their
capacity as an employer, a second capacity that conferred upon them obligations
independent of those imposed upon them as an employer.” Id. at 527. The Act’s
exclusive remedy provision, accordingly, does not bar an employee from bringing
a cause of action in tort against a stockholder of his employer for independent
tortious acts when the stockholder is not acting in the role of employer. Id. at 534.

Ashley’s live pleading does not allege that QES Inc. and QES LLC owed or
breached duties independent of the employment relationship. She has not alleged
that they occupied dual capacities, which gave rise to duties independent of an
employer. Though under Odom, an employer’s stockholder may fall outside the

23
Act’s exclusive remedy protections if the stockholder “possesses a persona”
independent from that of an employer, id. at 532-33, Ashley has not alleged or
argued that QES Inc. and QES LLC acted outside the role of employer.

We overrule Ashley’s issue with respect to the claims against QES Inc. and
QES LLC.

D. Response to the dissent

Our dissenting colleague would dismiss this appeal for want of jurisdiction
due to the absence of an appealable summary judgment. We respectfully disagree
and hold that the summary judgment dismissing with prejudice all the plaintiffs’
claims against all the defendants is final and appealable.

Ashley’s live petition named the three appellees as defendants: QES, LLC;
QES Inc.; and QESPC. Ashley asserts two causes of action: negligence; and
intentional tort under section 5(B)(2) of the Act. She asserts these two causes of
action against all three appellees. There are no other parties, and appellees did not
assert a counterclaim.

Appellees filed a joint traditional motion for summary judgment based on
the application of Oklahoma’s workers’ compensation exclusive remedy provision.
The trial court granted the motion, stating that “Defendants’ Motion for Summary
Judgment against Plaintiffs is GRANTED” and that “Plaintiffs’ claims against
Defendants are dismissed with prejudice.”

In Lehmann, the supreme court stated that “an order that expressly disposes
of the entire case is not interlocutory merely because the record fails to show an
adequate motion or other legal basis for the disposition.” 39 S.W.3d at 206.
“Language that the plaintiff take nothing by his claims in the case, or that the case
is dismissed, shows finality if there are no other claims by other parties. . . .” Id. at

24
205. The trial court’s order in the present case satisfies this test. The trial court
clearly dismissed with prejudice all of Ashley’s claims against all appellees, and
the record reveals no other claims by other parties. Id. Therefore, the judgment is
final and appealable. Ritzell v. Espeche, 87 S.W.3d 536, 538 (Tex. 2002) (per
curiam); Deepwell Energy Servs., LLC v. Aveda Transp. & Energy Servs., No. 11-
20-00067-CV, 2020 WL 1625522, at *2 (Tex. App.—Eastland Apr. 2, 2020, pet.
denied) (mem. op.); Slaughter v. Johnson, No. 14-17-00050-CV, 2018 WL
4116115, at *3-5 (Tex. App.—Houston [14th Dist.] Aug. 28, 2018, no pet.) (mem.
op.); In re Harris Cnty. Hosp. Dist. Aux., Inc., 127 S.W.3d 155, 159 (Tex. App.—
Houston [1st Dist.] 2003, orig. proceeding); Lopez v. Yates, No. 14-01-00649-CV,
2002 WL 31599472, at *2 (Tex. App.—Houston [14th Dist.] Nov. 21, 2002, no
pet.) (mem. op.). Our reading of the trial court’s order is consistent with Lehmann
and its progeny (including this court’s precedent), preserves the plaintiffs’ right to
appeal, and avoids the unnecessary cost and delay associated with a dismissal or
remand followed by a subsequent appeal.17

17
The parties waited almost an entire year for the trial court to rule on the defendants’
motion.

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Conclusion

QESPC conclusively proved its entitlement to the exclusive remedy defense
under Oklahoma’s Administrative Workers’ Compensation Act, and Ashley did
not present evidence raising a genuine issue of material fact under the intentional
tort exception. Thus, the trial court did not err in granting summary judgment to
QESPC. Further, the summary judgment is not reversible error as to the claims
against QES Inc. and QES LLC because those claims are precluded as a matter of
law by other grounds raised and established in the summary judgment record. We
therefore affirm the judgment.

/s/ Kevin Jewell
Justice

Panel consists of Justices Jewell, Spain, and Wilson. (Spain, J., dissenting)

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