Opinion Issued February 26, 2010.
On Appeal from the 116th Judicial District Court, Dallas County, Texas, Trial Court Cause No. DC-05-11278-F.
Before Justices MOSELEY, BRIDGES, and FRANCIS.
Mitchell Goldminz appeals the trial court's summary judgment in favor of the City of Dallas. In three issues, Goldminz claims the trial court erred in granting summary judgment because there is more than a scintilla of evidence the City was his employer on the date of his injury and there is ample evidence he was injured in the course and scope of his employment as a Dallas Police Department Reserve Officer. We affirm the trial court's judgment.
Goldminz was a volunteer police officer with the City. He began in 1973 as a patrol officer, then worked undercover for twelve years. He was promoted several times, reaching deputy commander over all the reserve police officers in 1997. In October 2000, he was injured while attempting to handcuff an intoxicated participant of the Texas/OU rally in downtown Dallas. The injuries resulted in serious problems with his right hand and lower back. Goldminz had several surgeries and therapy on his hand and was absent for approximately eight months.
Goldminz filed a worker's compensation claim with the City. Although the City denied the claim, the City ultimately paid over $38,000 in medical bills. Goldminz then requested a benefit review conference of the denial of his claim and, on July 6, 2005, a contested case hearing was held. The hearing officer found the City was not Goldminz's employer for purposes of the Worker's Compensation Act, and because Goldminz was not the City's employee on the date he was injured, Goldminz's injuries were not compensable under the Act nor did he have a disability within the meaning of the Act. The appeals panel affirmed the hearing officer's decision. Goldminz then filed suit in district court alleging he was disabled and entitled to workers' compensation benefits. The City answered and filed a no evidence motion for summary judgment which the trial court granted on September 28, 2008. This timely appeal ensued.
In three issues, Goldminz contends the trial court erred in granting the City's no evidence motion for summary judgment. Goldmiz claims there is ample evidence he was injured in the course and scope of his employment as a Dallas Police Department Reserve Officer and he produced more than a scintilla of evidence the City was his employer or he was a City employee on the date of his injury for purposes of the Act.
When a defendant files a motion for summary judgment asserting there is no evidence of one or more essential elements of a plaintiff's claims, the burden shifts to the plaintiff to present summary judgment evidence raising a genuine issue of material fact on the challenged elements. Tex. R. App. P. 166a(i); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). When reviewing a no evidence summary judgment, we apply the same legal sufficiency standard of review that is applied when reviewing a directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003); Hogan v. J. Higgins Trucking, Inc., 197 S.W.3d 879, 882 (Tex. App.-Dallas 2006, no pet.). Under that standard, we must determine whether the nonmovant produced any evidence of probative force to raise a fact issue on the material questions presented. Hogan, 197 S.W.3d at 882. A party submits less than a scintilla of evidence when the evidence is "so weak as to do no more than create a mere surmise or suspicion of a fact." King Ranch, Inc., 118 S.W.3d at 751. If the party with the burden does not raise a genuine issue of material fact, the trial court must grant the motion. Martin v. Estates of Russell Creek Homeowners Ass'n, Inc., 251 S.W.3d 899, 902 (Tex. App.-Dallas 2005, no pet.).
Chapter 504 of the labor code, entitled "Workers' Compensation Insurance Coverage for Employees of a Political Subdivision," defines an employee as (a) "a person in the service of a political subdivision who has been employed as provided by law" or (b) "a person for whom optimal coverage is provided under Section 504.012 or 504.013." Tex. Lab. Code Ann. § 504.001 (Vernon 2006). A person is not an employee and not entitled to compensation under Chapter 504 if he "is in the service of a political subdivision and is paid on a piecework basis or on a basis other than by the hour, day, week, month, or year." Tex. Lab. Code Ann. § 504.014(1) (Vernon 2006). Under Section 504.012, a political subdivision "may" cover volunteer police officers. Tex. Lab. Code Ann. § 504.012(a) (Vernon 2006).
In its no evidence motion for summary judgment, the City alleged Goldminz could not produce a scintilla of evidence to support his claim he was a City employee, the City was his employer, or that he suffered a compensable injury. In his response, Goldminz stated there "was no dispute" he was employed as a reserve police officer for the City and was employed as a police officer as provided by law. He did not point to any evidence in the summary judgment record to support these claims. Goldminz also alleged the City elected to cover him as evidenced by section 37-83 of the Dallas City Code and the City Council's June 12, 2002 proclamation, both of which he attached to his response.
The Dallas City Code establishes a reserve battalion of the City's police department and mandates it be comprised of "a voluntary force of reserve policemen." Dallas, Tx., Dallas City Code § 37-75 (2004). The reserve battilion is an "auxiliary police force composed of volunteers who shall serve without pay." Dallas, Tx., Dallas City Code § 37-77 (2004). Section 37-83 of the Dallas City Code provides:
NO COMPENSATION; MEDICAL EXPENSES.
No reserve police officer appointed pursuant to this article shall be entitled to compensation for service. A police reserve officer who sustains injury in the course of performing official duties may receive hospital and medical assistance in the same manner as provided for fulltime police officers; provided, however, that nothing in this article shall be construed to authorize or permit a member of the reserve battalion to become eligible for participation in any pension fund created pursuant to state statute, to which regular officers may become a member by payroll deductions or otherwise.
Dallas, Tx., Dallas City Code § 37-83 (2004). The Dallas City Code clearly provides that a reserve police officer is a volunteer who serves without pay. Because a reserve police officer serves without pay, he does not meet the definition of an employee under section 504.014(a) of the labor code. See Tex. Lab. Code Ann. § 504.012(a). And contrary to Goldminz's claim, the Code provides only that the reserve officers may receive hospital and medical assistance; it does not mandate hospital and medical coverage for volunteers. Significantly, it does not provide workers' compensation benefits to volunteer police officers. The Dallas City Code does not establish Goldmiz was the City's employee or that the City was his employer on the date of his injury.
The June 12, 2002 proclamation by the Dallas City Council authorized the City Manager to pay, under section 37-88 of the Dallas City Code, "the reasonable and necessary medical expenses" of Goldminz for his injuries received in October 2000 "in an amount not to exceed $20,000." The proclamation does not declare Goldminz is an employee of the City or that the City is Goldminz's employer. Nor does the proclamation authorize compensation to Goldminz for his duties as a volunteer reserve police officer. The proclamation only authorizes payment of $20,000 for reasonable and necessary medical expenses. This is no evidence the City was Goldminz's employer or that he was the City's employee. Furthermore, this is no evidence that the City elected to give full medical benefits and the minimum compensation benefits provided by Chapter 504 to volunteer police officers, including Goldminz. As nonmovant, Goldminz had the burden to present summary judgment evidence raising a genuine issue of material fact on the challenged elements. Because he failed to do so, we cannot conclude the trial court erred in granting summary judgment in favor of the City. We overrule Goldminz's three issues.
We affirm the trial court's judgment.