Court of Appeals of Texas,

Corpus Christi-Edinburg.

James ESTRADA

v.

Billy ALLEN d/b/a Jones and Allen Oil Field Construction and Hunt Vacuum Service, Inc.

No. 13-98-297-CV.

|

Dec. 2, 1999.

Attorneys & Firms

O. F. Jones III, for James Estrada.

Michael Edward Keller, for Billy Allen d/b/a Jones and Allen Oil Field Construction and Hunt Vacuum Service, Inc.

Before Chief Justice SEERDEN and Justices DORSEY and CHAVEZ.

OPINION

Opinion by Chief Justice SEERDEN.

*1 This is an appeal from the trial court’s grant of summary judgment. By two issues, James Estrada, appellant, argues: (1) his claims are governed by a four-year statute of limitations; and (2) there is a fact issue regarding the appellee’s contractual obligation to another defendant which precludes summary judgment. We affirm.

James Estrada was employed as an oil field construction worker. He claims that on or about November 4, 1994, he was injured as the result of an explosion that occurred while he was on the job. At the time, he was employed by Administrative Resources, Ltd. (ARL), appellee here. ARL is a staff leasing company which leases its employees to various other business. In Estrada’s case, ARL had leased him to Billy’s Lease Services, Inc. d/b/a Jones & Allen Oilfield Construction. The record reflects that ARL and Jones & Allen entered into a contractual agreement (“Client Services Agreement”) on January 1, 1992.

On January 8, 1998, Estrada filed his third amended petition. He named Jones & Allen and ARL as defendants. This petition alleged that ARL’s negligence caused his injuries. Specifically, the petition stated:

Plaintiff would show that at the time and on the occasion in question, one or more of the Defendants, through its other agents, servants or employees was negligent in the operation and maintenance of oilfield equipment, and in the work that was being done, failed to provide the Plaintiff with a safe place to work, failed to provide proper and adequate tools for the performance of the work that was being done, and failed to properly supervise and manage its employees, supervisors and the work that was being done, all of which constituted negligence and a proximate cause of the damages which the Plaintiff has sustained.

The petition further recited that Jones & Allen had entered into a contractual agreement with ARL whereby ARL would provide employees to Jones & Allen. Under the provisions of that agreement, Estrada contends that “the Defendants contracted and warranted that they would provide the Plaintiff with a safe place to work…. Instead, the Defendant (sic) violated such duties, when the Plaintiff was injured as a result of the negligence of the Defendants.” The petition concludes “As a consequence of the injuries that he sustained, Plaintiff now alleges that such injuries were caused by the negligence of the Defendant Administrative Resources Corp. at the time and on the occasion in question.”

ARL answered, claiming, inter alia, that Estrada’s lawsuit was barred by limitations. On March 19, 1998, ARL filed a motion for summary judgment raising the affirmative defense of limitations. ARL claimed that Estrada’s claims sound in tort and are governed by a two-year limitations period. Tex. Civ. Prac. & Rem.Code Ann. § 16.003 (Vernon 1998). The Client Services Agreement was attached to the motion. Among other things, the Agreement contains the following provisions:

IX. SAFE WORK ENVIRONMENT

*2 9.1 Client [Jones & Allen] covenants, warrants and represents to Company [ARL] that Client will comply, at its sole cost and expense, with all federal, state and local health and safety laws, regulations, ordinances, directives and rules relating to the work place.

* * * *

9.3 Client shall provide and ensure use of all personal protective equipment as required by federal, state or local laws, regulations, ordinances, directives or rules, or as deemed necessary by Company or Company’s accident insurance carrier.

In his response to the motion, Estrada argued:

The Defendant’s Motion should be denied, because there are significant questions of fact as to whether or not the Defendant’s employees were guilty of negligence which proximately caused the Plaintiff’s injuries; in the event that the Plaintiff’s (sic) employees were guilty of negligence, then by contractual agreement, the acts of such employees are imputed to the Defendant, and by reason of its agreement with its client, Jones & Allen, the Plaintiff’s ostensible employer, the Defendant Administrative Resources has contractually agreed to such responsibility.

He argues his claims sound in contract, rather than tort, and are governed by a four-year statute of limitations. Tex. Civ. Prac. & Rem.Code Ann. § 16.004 (Vernon 1998).

The trial court granted summary judgment on April 27, 1998. The order granting summary judgment stated that ARL had conclusively established the fact that

Plaintiff has no right or standing to bring any action against Defendant Administrative Resource, Ltd. predicated upon an alleged or actual breach of [the] Client Services Agreement dated January 1, 1992 by and between Defendant Administrative Resource, Ltd. and Defendant Billy Allen d/b/a Jones and Allen Oil Field Construction.

The court concluded that

Plaintiff’s cause of action against Defendant Administrative Resources sounds in tort and the statute of limitations of such cause of action is governed by Section 16.003 of the Texas Civil Practice and Remedies Code, which prescribes a two year limitations period.

Estrada appeals from that order.

The party moving for summary judgment carries the burden of establishing that no material fact issue exists and that it is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985). A defendant moving for summary judgment on the affirmative defense of limitations has the burden to conclusively establish that defense. Velsicol Chem. Corp. v. Winograd, 956 S.W.2d 529, 530 (Tex.1997). In reviewing a summary judgment, we take as true all evidence favorable to the nonmovant. Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997). We indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. Id.

The record shows that Estrada was not a party to the contract between ARL and Jones & Allen. The contract itself, furthermore, expressly states “This agreement is between Company and Client and creates no individual rights of Company employees or any other third parties as against Client or Company.” A person who is neither a party to a contract nor a beneficiary thereto may not sue to enforce that contract. See Paragon Sales Co., Inc. v. New Hampshire Ins. Co., 774 S.W.2d 659, 660 (Tex.1989); Dairyland County Mut. Ins. Co. of Texas v. Childress, 650 S.W.2d 770, 775 (Tex.1983); Maranatha Temple, Inc. v. Enterprise Prod. Co., 893 S.W.2d 92, 101 (Tex.App.-Houston [1st Dist.] 1994, writ denied). A person becomes a beneficiary to a contract only if it appears on the face of the contract that the parties entered into the contract directly and primarily for the benefit of that person. Esquivel v. Murray Guard, Inc., 992 S.W.2d 536, 543 (Tex.App.-Houston [14th Dist.] 1999, pet. denied). The intent to not make a third party a beneficiary may be gleaned from the unambiguous provisions of the contract. Id.

*3 Here the unambiguous provisions of the contract indicate that neither ARL nor Jones & Allen intended to make Estrada or others in his situation a beneficiary of the contract. Thus, Estrada has no standing to enforce the agreement.

Another basis for a contractual claim by Estrada here is a quasi-contractual theory stemming from his at-will employment relationship with ARL.¹ Such a relationship creates certain duties owed by the employer to the employee. Among these is the duty to maintain a safe working environment. Exxon Corp. v. Tidwell, 867 S.W.2d 19, 21 (Tex.1993). However, a claim of breach of that duty sounds in tort, rather than contract. Stier v. Reading & Bates Corp., 992 S.W.2d 423, 433 (Tex.1999). Accordingly, such a claim is subject to the two-year statute of limitations for tort claims. Tex. Civ. Prac. & Rem.Code Ann. § 16.003 (Vernon 1998).

The record shows that Estrada’s attorney sent a letter to Dr. Sam Williams dated October 2, 1995. In this letter, counsel indicates that he represents Estrada in connection with injuries inflicted on November 7, 1994. This evidence shows that Estrada knew of his injuries no later than October 2, 1995. Therefore, the two-year limitations period for claims related to those injuries expired, at the latest, on October 2, 1997. Estrada’s petition was not filed until January 8, 1998. Thus, the two-year limitations period expired. Estrada’s first issue is overruled.

Estrada claims that a question of fact persists which precludes summary judgment as well. Estrada argues that Jones & Allen sought to avoid the Texas Workers Compensation Law and did so by entering into this agreement with ARL. Pursuant to the agreement, ARL would assume responsibility for all of the employee functions, including supervision and safety. Thus, there was no one left at Jones & Allen to conduct administrative functions. Estrada argues that this creates a question of fact “as to whether Jones & Allen, or Appellee, was in fact carrying out those terms of the contract relating to providing the Appellant with a safe place to work and the necessary safe equipment with which to perform the work.” He bases his argument, in part, on the fact that ARL did not provide worker’s compensation insurance to its employees, thereby subjecting it to section 406.033 of the labor code. See Tex. Lab.Code Ann. § 406.033 (Vernon 1998).

Section 406.033 provides:

(a) In an action against an employer who does not have workers’ compensation insurance coverage to recover damages for personal injuries or death sustained by an employee in the course and scope of the employment, it is not a defense that:

(1) the employee was guilty of contributory negligence;

(2) the employee assumed the risk of injury or death; or

(3) the injury or death was caused by the negligence of a fellow employee.

* * * *

(d) In an action described by Subsection (a) against an employer who does not have workers’ compensation insurance coverage, the plaintiff must prove negligence of the employer or of an agent or servant of the employer acting within the general scope of the agent’s or servant’s employment.

*4 Id. In essence, Estrada argues that there is a fact question regarding which party was responsible for providing a safe workplace. However, such a question is relevant only to a negligence claim filed against an employer who does not provide workers’ compensation insurance. See Woodlawn Mfg., Inc. v. Robinson, 937 S.W.2d 544 (Tex.App.-Texarkana 1996, writ denied). In other words, the coverage of the agreement in this instance is relevant only to determine whether ARL or Jones & Allen is responsible for the negligence which resulted in Estrada’s injuries. Estrada’s claim sounds in tort under section 406.033. However, because Estrada did not bring his claim within the statutorily-prescribed two-year limitations period, such a negligence claim is time-barred. Tex. Civ. Prac. & Rem.Code Ann. § 16.003 (Vernon 1998). Estrada’s second issue is overruled.

We hold that ARL has established as a matter of law that Estrada had no standing to enforce the agreement in question. Similarly, we hold that ARL has established as a matter of law that Estrada’s claims are tort claims which are now barred by limitations. Accordingly, we AFFIRM the judgment of the trial court.

	Footnotes
1		There is no evidence in the record to indicate that Estrada entered into a written contractual agreement with ARL.