DISSENTING OPINION
Based on the protection afforded by the Texas Constitution, by laws of the State of Texas, and by controlling precedent of the Supreme Court of Texas, I would conclude that Appellees gross negligence claim is expressly excluded, as a matter of law, from the scope of the arbitration agreement. See TEX. CONST. art. XVI, § 26; see also TEX. LAB. CODE ANN. §§ 408.001(b), 408.181, 408.186; Mo-Vac. Serv. Co., Inc. v. Escobedo, 603 S.W.3d 119, 135 (Tex. 2020) (Guzman, J., concurring).
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Moreover, such exclusion applies regardless of whether or not the agreement is enforceable. Additionally, I would further conclude that the arbitration agreement itself provides that claims for workers compensation benefits and other claims that are “not subject to arbitration under current law,” shall be excluded from binding arbitration. In my view, this clause applies to Appellees claim for gross negligence seeking to recover exemplary damages for the employers conduct that proximately caused a work-related death. See Zacharie v. U.S. Nat. Res., Inc., 94 S.W.3d 748, 758 (Tex. App.—San Antonio 2002, no pet.) (recognizing deceased workers childrens claim was brought under Article XVI, § 26 of the Texas Constitution and the Workers Compensation Act).
Because a lawful basis exists to deny the motion to compel arbitration, I would affirm the trial courts ruling in its entirety. Because the majority concludes otherwise, I respectfully dissent.
FOOTNOTES
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. In Mo-Vac, Justice Guzmans concurring opinion compared the permitted claims brought under the Wrongful Death Act with those brought under the Workers Compensation Act. See Mo-Vac, 603 S.W.3d at 135 n.22 (comparing TEX. CIV. PRAC. & REM. CODE § 71.004 (parents of the deceased may bring a wrongful-death action), with TEX. LAB. CODE ANN. § 408.001(b) (only the decedents surviving spouse and heirs may recover exemplary damages)). Describing the more limited scope of the Workers Compensation Act, Justice Guzman stated: “The Workers Compensation Act similarly permits recovery of exemplary damages when death is ‘caused by an intentional act or omission of the employer or by the employers gross negligence,’ but unlike the wrongful-death statute, only ‘the surviving spouse or heirs of the [decedents] body’ may invoke the exemplary-damages exception to the exclusive-remedy provision.” Id. (quoting TEX. LAB. CODE ANN. § 408.001(b)).
GINA M. PALAFOX, Justice