EMILY LAWRENCE, Appellant v. BOTTLING GROUP, L.L.C. D/B/A PEPSI BOTTLING GROUP, Appellee

SUPREME COURT CASES

Laws-info.com » Cases » Texas » 5th District Court of Appeals » 2011 » EMILY LAWRENCE, Appellant v. BOTTLING GROUP, L.L.C. D/B/A PEPSI BOTTLING GROUP, Appellee

State: Texas

Court: Texas Northern District Court

Docket No: 05-10-00112-CV

Case Date: 06/21/2011

Plaintiff: EMILY LAWRENCE, Appellant

Defendant: BOTTLING GROUP, L.L.C. D/B/A PEPSI BOTTLING GROUP, Appellee

Preview:EMILY LAWRENCE, Appellant v. BOTTLING GROUP, L.L.C. D/B/A PEPSI BOTTLING GROUP, Appellee
AFFIRM and Opinion Filed June 21, 2011

In The Court of Appeals Fifth District of Texas at Dallas ............................ No. 05-10-00112-CV ............................ EMILY LAWRENCE, Appellant V. BOTTLING GROUP, L.L.C. D/B/A PEPSI BOTTLING GROUP, Appellee ............................................................. On Appeal from the 95th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-08-05481-D ............................................................. MEMORANDUM OPINION Before Justices O'Neill, Francis, and Myers Opinion By Justice O'Neill Appellant Emily Lawrence appeals a summary judgment dismissing her claims against appellee Bottling Group, L.L.C. d/b/a Pepsi Bottling Group. She asserts the trial court erred in concluding her claims against Pepsi Bottling were barred by limitations because the claims were revived under the provisions of section 33.004 of the civil practice and remedies code. For the following reasons, we affirm the trial court's judgment. While Lawrence was working at Wal-Mart, she slipped and fell on water that had leaked from a Pepsi Cola vending machine. As a result, she suffered injuries. Lawrence filed a workers' compensation claim with Wal-Mart's workers' compensation carrier and received benefits. Later, a few days before limitations was to expire, she filed suit against Wal-Mart. Wal-Mart answered and alleged, among other things, Lawrence's claims were barred by the exclusive remedy provisions of the workers' compensation act. Wal-Mart also filed a third party petition against Pepsi Bottling asserting contractual indemnity pursuant to its vendor and supplier agreement with Pepsi Bottling. It also alleged a claim for contribution based on Pepsi Bottling's negligence. Wal-Mart subsequently filed a motion for summary judgment based on the exclusive remedy provisions of the workers' compensation act. The trial court granted the motion and rendered judgment that Lawrence take-nothing from Wal-Mart. Wal-Mart then nonsuited its claims against Pepsi Bottling and filed a motion to sever. The trial court severed Lawrence's claims against Wal- Mart from the instant case making Wal-Mart's judgment final. Meanwhile, after limitations had expired, Lawrence filed a "First Supplemental Petition" naming Pepsi Bottling as a defendant. On the same date, she filed a "Motion for Leave to Join Responsible Third Party." According to Lawrence, she was permitted to join Pepsi Bottling outside of limitations based on provisions of the proportionate responsibility statute. Pepsi Bottling disagreed and filed a motion for summary judgment based on limitations. The trial court granted the motion and dismissed Lawrence's claims. Lawrence appeals. It is undisputed that Lawrence filed her suit against Pepsi Bottling after the statute of limitations expired. To show limitations does not bar her claims, Lawrence relies entirely on a revival provision found in section 33.004 of the civil practice and remedies code. Tex. Civ. Prac. & Rem. Code Ann.

Download 05-10-00112-cv-5.pdf