Case: 10-41059 Document: 00511478832 Page: 1 Date Filed: 05/16/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            May 16, 2011

                                     No. 10-41059                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



ASHLEY EBNER JOHNSON, individually and as Administratrix of the
estate of Bobby Spray Elrod, Deceased,

                                                   Plaintiff–Appellant
v.

TDS ERECTORS, INCORPORATED,

                                                   Defendant–Appellee




                   Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 5:09-CV-128


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       TDS Erectors, Inc. (“TDS”) is an Arkansas corporation and Bobby Spray
Elrod was a Texas resident and TDS employee killed on a Texas work site. His
adult daughter, Ashley Ebner Johnson, appeals the district court’s grant of
summary judgment in TDS’s favor of after determining Arkansas law rather
than Texas law applied to her claims for gross negligence and exemplary



       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
     Case: 10-41059 Document: 00511478832 Page: 2 Date Filed: 05/16/2011



                                       No. 10-40159

damages and that her claims were therefore barred under Arkansas’s workers’
compensation scheme. Specifically, Johnson argues her claim for wrongful death
is a valid common-law claim protected by Texas constitution art. XVI § 26 and
Texas Labor Code § 408.001(b), such that the district court should not have
applied the Restatement (Second) Conflict of Laws §§ 6(2), 145, 184 (1971) to its
choice-of-law analysis. Rather, she argues that Restatement § 6(1) mandated
the district court apply Texas law. She also argues that even if sections 6(2),
145, and 184 of the Restatement apply, the district court incorrectly determined
that Arkansas law governed her suit and barred her claims.
       We review the order on summary judgment and the choice-of-law
determination de novo. See Chaney v. Dreyfus Serv. Corp., 

, 228–29
(5th Cir. 2010); Ellis v. Trustmark Builders, Inc., 

, 225 (5th Cir.
2010). The district court issued a thorough thirty-seven-page order that
addressed each of Johnson’s claims now on appeal. We agree with its careful
analysis that Johnson’s wrongful death claim is properly found in the Texas
Wrongful Death Act and that her claim is derivative of any claim Elrod may
have had at the time of his death.                See T EX. C IV. P RAC. & R EM. C ODE
§§ 71.002–.004. Any determination of whether Johnson has a colorable wrongful
death claim potentially protected by Restatement § 6(1)1 therefore depends on
whether Elrod could have brought suit under the Act in Texas court against TDS
or whether the Arkansas workers’ compensation law would have barred his suit.2

       1
         We do not address whether a valid wrongful death claim under Texas law would
constitute a “constitutional restriction” such that a Texas court applying Texas choice-of-law
rules should not apply Restatement §§ 6(2), 145, 184.
       2
         Johnson concedes that article XVI § 26 does not create an independent cause of action,
but argues it protects the cause of action she says is found in common law and further
protected in Texas Labor Code § 408.001(b). As explained by the district court, § 408.001(b)
is a “savings clause” in the Texas Workers’ Compensation Act passed to comply with article
XVI § 26 and does not create an independent cause of action for exemplary damages. Johnson
admits that article XVI § 26 protects whatever cause of action for punitive damages for death
resulting from gross negligence that a plaintiff may have.

                                              2
    Case: 10-41059 Document: 00511478832 Page: 3 Date Filed: 05/16/2011



                                  No. 10-40159

      After reviewing the district court’s thorough analysis of the Restatement
§§ 6(2), 145, and 184 factors to the choice-of-law issue in this case, we agree for
essentially the same reasons as stated by the district court that Arkansas law
governs Johnson’s suit. We specifically note for § 145 the considerable evidence
that Arkansas was the primary situs of Elrod’s employment with TDS and the
§ 6(2) policy implications analyzed by the district court based on that fact. With
respect to § 184, Arkansas law should apply because TDS is immune under the
Arkansas workers’ compensation law and Johnson received a $6,000 funeral-
expenses award under the Arkansas workers’ compensation scheme. See A RK.
C ODE. A NN. § 11-9-527. Accordingly, Arkansas workers’ compensation law bars
Johnson’s claims against TDS, and summary judgment was properly granted in
TDS’s favor.
      AFFIRMED.




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