How Workers’ Compensation addresses sexual assault cases

Correction from last week’s article regarding Scarborough Faire: The Brignon’s current civil case is in Dallas County Court at Law 3 against Scarborough Faire and David James Ford, not Ellis County like the article mentioned. The Brignon’s lawsuit against Texas Mutual was in Ellis County in Judge Bob Carroll’s court. 

ELLIS COUNTY – Gary and Kelly Brignon were at Scarborough Faire last weekend protesting the Renaissance festival’s hiring practices. 

This was because their 14-year-old daughter, while working there, was sexually assault back in 2018.

The assailant was convicted.

Scarborough Renaissance Festival did not have a chance to respond to last week’s article by press time, but did have a response for this week’s article: 

“Scarborough Renaissance Festival does everything in its power to ensure the safety of all of our employees, participants and patrons and to conduct the safest events possible.  

“Scarborough Renaissance Festival does not employ underage workers. Scarborough Renaissance Festival does hire young people in accordance with the State of Texas’ employment laws and adheres to all guidelines regarding their work hours and supervision. 

“If there is ever inappropriate or suspected unlawful behavior by any of our employees, participants, or patrons, we cooperate fully with local authorities to address such matters. Scarborough Renaissance Festival does not comment on any type of litigation.” 

The Brignon’s first day to protest was last Sunday, and mom Kelly Brignon said, “We will be out there every weekend until the festival ends Memorial Day Monday.”

The Brignon family and their daughter believe if Scarborough Faire is going to hire young employees, then “employers owe a responsibility to their employees to provide them with a safe workplace that includes background checks and responsible hiring/retention of employees/supervision of employees and who actually supervises 14-year-old employees on the job,” she said. 

The Brignons said that their daughter’s sexual assault was considered a workplace accident/injury.

“Sexual assault is not a workplace accident or injury,” Kelly said. “It is a crime.”

Now the Brignon’s daughter said she wants to be an advocate for sexual assault victims, and she also wants to make sure no other child goes through what she went through at Scarborough Renaissance Festival, Kelly explained.

The family currently has a civil case in Dallas County that Kelly said, “is against the man who sexually assaulted our daughter and Scarborough Renaissance Festival, and it is ongoing.” The family said they plan to continue fighting the unjust Worker’s Compensation laws in the State of Texas too.

“The Texas Department of Insurance and Scarborough Renaissance Festival’s Worker’s Compensation carrier, Texas Mutual, exclude criminal acts from being compensable injuries yet our daughter’s sexual assault – which is a Class A Felony – was deemed a compensable injury by Texas Mutual and ultimately Judge Bob Carroll in Ellis Co.,” Kelly said. “That effectively bars our daughter and any other woman from holding her employers responsible for negligent hiring, supervision, and retention of employees who sexually assault them at the workplace.  This is a step back from the ground we covered with the #metoo movement.”  

In fact, Kelly said on March 31, 2018 their daughter signed a document from Scarborough Faire stating that they did not have Worker’s Compensation, so that has the young girl’s parents confused.

“She was never notified that they obtained it. We found out later that they had it and because they did, we had to report her sexual assault to their carrier, Texas Mutual.”

In her words Kelly said, “I reported the sexual assault to Texas Mutual in August of 2018. A month later they said it was covered by worker’s comp; we appealed. We went to our first appeal hearing and the appeal officer recommended it for an administrative review. That was scheduled in the spring of 2019. Our attorney made her case to the administrative law judge that just because the accident happened at work, did not mean it was a compensable injury since it did not arise from a workplace dispute – it must happen at work and be related to work to be a compensable injury – and was therefore not a compensable injury. She also pointed out the criminal acts were excluded from coverage and David Ford had been convicted of a criminal act. The administrative law judge disagreed and sided with Texas Mutual.”

From there, the Brignon’s filed a judicial review, which means they sued Texas Mutual in Ellis County in September of 2019. It was filed in Cindy Ermatinger’s court, and the case was not heard until August of 2020. There were 30 days to make a decision. That judge chose not to decide, and the case was transferred to Judge Carroll’s court in March 2021.  

“Our attorney and Texas Mutual’s attorney presented their arguments to Judge Carroll, and he agreed with Texas Mutual that Paige’s sexual assault was a workplace accident,” Kelly said. “Judge Carroll is the same judge who sentenced David Ford for the crime of sexually assaulting our daughter – but contradicted himself by siding with Texas Mutual and allowing a criminal act to be a covered workplace injury/accident. Our issues with the whole Worker’s Compensation issue – Criminal acts are not covered by Texas Mutual or by Scarborough Faire’s Worker’s Compensation policy.”  

The Brignon’s said they are certain their daughter’s sexual assault was not because of a workplace dispute and therefore did not meet the second condition required to be considered a workplace injury. They also said Scarborough Faire did not have Worker’s Compensation when their daughter was sexually assaulted.  

“If you go on the Texas Department of Insurance website, you’ll see that they (Scarborough Renaissance Festival) didn’t have the insurance until April 21, 2018,” Kelly added.

The Brignon’s civil case in Dallas County Court with Judge Sally Montgomery is against David James Ford and Southwest Festivals dba Scarborough Faire. The Brignons are suing for bodily injury/assault, malice, and negligence against the assailant and against renaissance festival for negligent hiring, supervision, failure to provide adequate security and vicarious liability.  

“By calling our daughter’s sexual assault a workplace injury that is covered under worker’s compensation, Scarborough Faire – and any business, really – can be negligent in who they hire and how they supervise their employees and hide behind the shield of worker’s comp,” Kelly concluded, adding they plan to continue to seek justice regarding the way their daughter’s case has been handled so no other young girl must go through the same situation.