That’s the question in the Safeshred, Inc. v. Louis Martinez, III, No. 10-0426 (DDB), which has now been chosen for oral argument by the Texas Supreme Court.

The employee’s claim against the employer is what’s known in Texas as a Sabine Pilot claim, named after a case in which the Texas Supreme Court recognized it as a new cause of action.

In this case, the employee was a truck driver who refused to carry a particular load, which he contended was illegal and unsafe. The company fired him. Although the company contested those facts at trial, in the Texas Supreme Court it only challenges the award of exemplary damages to the employee.

The company argues that a Sabine Pilot claim can never support exemplary damages. Alternatively, it argues that the exemplary damages are improper because the company’s “malice” was directed at others (those who might’ve been hurt by the unsafe load) rather than at the employee who was fired for refusing to carry out its instructions.

The employee responds that Sabine Pilot claims are judicially created in Texas and bear the hallmarks of a tort claim (for which exemplary damages are generally available) rather than a contract claim (for which they are not).

The Court has not yet assigned this case to a specific argument date.