Court of Appeals of Texas, Houston (14th Dist.).

Jack F. BERRY & The Texas Workers’ Insurance Fund, Appellant,

v.

BAYTANK HOUSTON, INC., Individually and d/b/a/ Baytank and/or Baytank Terminal, Appellee.

No. 14-98-00676-CV.

|

April 22, 1999.

Panel consists of Justices ANDERSON, HUDSON and DRAUGHN.²

OPINION

DRAUGHN.

*1 This is an appeal by plaintiff, Jack Berry (“Berry”), and the Texas Workers’ Insurance Fund (“Fund”), as intervenor, from the order granting summary judgment in favor of defendant, Baytank Houston, Inc. (“Baytank”). Berry filed suit against Baytank alleging negligence and sought damages for the injuries he sustained while working on Baytank’s premises.¹ Baytank filed a motion for summary judgment against Berry on the basis of the borrowed servant doctrine, and the trial court subsequently granted a partial summary judgment in its favor. Baytank later moved for summary judgment against the Fund and the trial court granted its motion. On appeal, Berry and the Fund challenge the rendition of summary judgment in one point of error and Baytank raises one cross-point. We reverse the trial court’s granting of summary judgment against Berry and remand the case for trial, and dismiss the Fund’s appeal.

Background

Baytank owns and operates a public marine terminal in Seabrook, Texas, for the storage, transfer, and distribution of bulk liquids. In 1995, Baytank undertook to design a similar terminal to be constructed in China. It entered into an agreement with Technical Associates Company, Inc. (“TACI”) and engaged the services of Berry for the duration of the China project. After working there for several weeks, Berry slipped and injured himself while walking from his vehicle to his place of work. Berry brought suit against Baytank for his injuries, Baytank moved for summary judgment on the basis of the borrowed servant doctrine, and the trial court granted its motion.

Standard of Review

A movant for summary judgment must show there is no genuine issue of material fact and he is entitled to judgment as a matter of law. See Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985). Specifically, summary judgment for the defendant is proper when the proof shows there is no genuine issue of material fact as to one or more of the essential elements of the plaintiff’s cause of action. See Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991); Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex.1990). The nonmovant must produce some competent summary judgment evidence before a court can determine whether fact issues exist which preclude the granting of summary judgment. See Liggett v. Blocher, 849 S.W.2d 846, 850 (Tex.App.-Houston [1st Dist.] 1993, no writ). In reviewing the granting of a summary judgment motion, we must indulge every reasonable inference in favor of the nonmovant. See Randall’s Food Mkts., Inc., 891 S.W.2d at 644. Furthermore, we should not consider proof that favors the movant’s position unless it is uncontroverted. See Corporate Leasing Int’l, Inc. v. Groves, 925 S.W.2d 734, 736 (Tex.App.-Fort Worth 1996, writ denied).

Discussion

*2 In his sole point of error, Berry contends the trial court erred in granting Baytank’s motion for summary judgment on the ground of the borrowed servant doctrine because the summary judgment proof failed to establish that Berry was Baytank’s borrowed servant as a matter of law.

Chapter 408 of the Texas Labor Code governs the area of workers’ compensation benefits. In particular, section 408.001(a) of the Texas Labor Code provides that “recovery of workers’ compensation benefits is the exclusive remedy of an employee covered by workers’ compensation insurance coverage or a legal beneficiary against the employer or an agent or employee of the employer for the death of or a work-related injury sustained by the employee.” Tex. Lab.Code Ann. § 408.001(a) (Vernon 1996). Berry contends, however, that Baytank is not his “employer” for purposes of section 408.001, and therefore, workers’ compensation benefits are not his exclusive remedy.

When a question arises as to which of two employers is liable for workers’ compensation benefits, Texas courts have employed the borrowed servant doctrine. See Christian v. Texas Employers Ins. Ass’n, 679 S.W.2d 679, 681 (Tex.App.-Dallas 1984, writ ref’d n.r.e.). The borrowed servant doctrine provides that a worker may simultaneously be the employee of record of one employer and the “borrowed” employee of another. See Sparger v. Worley Hosp., Inc., 547 S.W.2d 582, 583 (Tex.1977); Marshall v. Toys-R-Us Nytex, Inc., 825 S.W.2d 193, 195-96 (Tex.App.-Houston [14th Dist.] 1992, writ denied). The doctrine serves to protect the employer who had the right of control over the manner and details of the employee’s work from common law liability. See Marshall, 825 S.W.2d at 196. Where no written agreement exists between the two employers, the right of control is necessarily determined from the facts and circumstances of the project. See Producers Chem. Co. v. McKay, 366 S.W.2d 220, 226 (Tex.1963); Marshall, 825 S.W.2d at 193.

The Texas Supreme Court has instructed that the test for determining whether a worker is an employee or an independent contractor is whether the employer had the right to control the progress, details, and methods of operation of the employee’s work. See Thompson v. Travelers Indem. Co., 789 S.W.2d 277, 278 (Tex.1990). The employer must control not merely the end sought to be accomplished, but also the means and details of its accomplishment. See id. The right of control is determined by examining the nature of the general project, the nature of the work to be performed by the employee furnished, the length of the special employment, the type of machinery furnished, the right to substitute another operator of the machine, and acts representing an exercise of actual control. See Producers Chem. Co., 366 S.W.2d at 226. The type of control normally exercised by an employer includes determining when and where to begin and stop work, the regularity of hours, the amount of time spent on particular aspects of the work, the tools and appliances used to perform the work, and the physical method or manner of accomplishing the end result. See Thompson, 789 S.W.2d at 278-79. In contrast, several factors which courts have found to have no bearing on whether an employee is a borrowed servant include the gratuitous payment of benefits to the worker, post-accident conduct of the employer, see Archem Co. v. Austin Indus., Inc., 804 S.W.2d 268, 270 (Tex.App.-Houston [1st Dist.] 1991, no writ), whether the employer issues the worker’s paycheck, see Employers Cas. Co. v. American Employers Ins. Co., 397 S.W.2d 292, 296 (Tex.Civ.App.-Amarillo 1965, writ ref’d n.r.e.), or carries workers’ compensation insurance. See Denison v. Haeber Roofing Co., 767 S.W.2d 862, 866 (Tex.App.-Corpus Christi 1989, no writ). We must determine whether Baytank’s summary judgment proof establishes that Berry was Baytank’s borrowed servant as a matter of law.

*3 Baytank contends that Berry was recruited by TACI as a piping designer. Bob Rogers, Baytank’s plant designer, contacted TACI in the summer of 1995 and requested a draftsman proficient in the use of computer drafting. Berry was sent to Baytank for an interview with Rogers who informed Berry that his work would be producing process and instrument drawings (P & ID). His job entailed taking hand-drawn P & ID/flow sheets from Rogers and transferring them onto the computer using the computer drafting software. When Berry finished one drawing, he would be given another one by Rogers. Baytank asserts that Rogers was constantly monitoring what Berry was doing and, at times, instructed Berry to enlarge, change, or modify the drawings he was working on as needed. If Berry had any questions regarding his work, or needed clarification or guidance, he would seek Roger’s advice. Berry worked at the Baytank facility solely using Baytank equipment. As part of the supervision and control that it exercised over Berry, Baytank testified that it retained the ability to terminate Berry if it so desired.

In support of Baytank’s position, Gerald Garcia, a senior account manager at TACI, testified that Baytank requested a piping designer with knowledge of drafting software. Garcia also stated that TACI did not retain the authority or right to control Berry while he was at Baytank. TACI did not inspect or approve Berry’s work, or maintain any contact with Berry while he worked at Baytank except when Berry submitted his hours on a weekly basis. Berry was paid hourly, rather than in a lump sum or salaried, and was required to obtain Baytank’s approval of the hours he submitted to TACI.

In contrast, Berry disputes the assertion by Baytank that it had the right to control the progress, details, and methods of operation of his work. Berry contends he was specifically hired to manage the computers for Baytank and did very little design work as a computer piping designer. He states that because no one at Baytank knew how to operate the computer systems, it was his job to determine what type of software was currently being used and to consult with them as to what type they should use. Berry asserts that no one at Baytank told him how to do his work or when he should begin or stop work, nor did he report or take directions from anyone at Baytank. Further, Baytank did not provide him with any special equipment or supplies because he brought all the equipment with him necessary to perform his job. Berry concludes this summary judgment proof demonstrates that a fact issue exists regarding the right of control over his work. Consequently, Baytank has failed to establish that Berry was Baytank’s borrowed servant as a matter of law, thereby precluding the granting of summary judgment. We agree.

The standard of review in an appeal from the rendition of summary judgment is whether the movant proved there is no genuine issue of material fact. See Randall’s Food Mkts., Inc., 891 S.W.2d at 644; Nixon, 690 S.W.2d at 548. Furthermore, an appellate court should not consider evidence that favors the movant’s position unless it is uncontroverted. See Corporate Leasing Int’l, Inc., 925 S.W.2d at 736. As Berry’s summary judgment proof demonstrates, and by Baytank’s own admission in its brief, Baytank’s position is contradicted by Berry. Berry’s argument is supported by his affidavit and deposition testimony which, contrary to Baytank’s assertion, constitute competent summary judgment proof. See Wilson v. Burford, 904 S.W.2d 628, 629 (Tex.1995); Rallings v. Evans, 930 S.W.2d 259, 262 (Tex.App.-Houston [14th Dist.] 1996, no writ). We therefore find that Baytank has failed to establish that Berry was Baytank’s borrowed servant as a matter of law, and therefore, the trial court erred in granting its motion for summary judgment.

*4 In a cross-point, Baytank contends the Fund, as intervenor, failed to perfect its appeal because it did not file a notice of appeal. As such, Baytank concludes this court is without jurisdiction and must dismiss its appeal.

An appeal is perfected by filing a written notice of appeal. See Tex.R.App.P. 25.1(a). Parties whose interests are aligned may also file a joint notice of appeal. See id. 25.1(c). Texas Rule of Appellate Procedure 25.1(b) provides:

The filing of a notice of appeal by any party invokes the appellate court’s jurisdiction over all parties to the trial court’s judgment or order appealed therefrom. Any party’s failure to take any other step required by these rules, including the failure of another party to perfect an appeal under (c), does not deprive the appellate court of jurisdiction but is ground only for the appellate court to act appropriately, including dismissing the appeal.

Tex.R.App.P. 25.1(b) (emphasis added). Therefore, the Fund’s failure to perfect its appeal, by filing a written notice either individually or jointly with Berry, does not deprive this court of jurisdiction. However, subsection (c) also provides “[t]he appellate court may not grant a party who does not file a notice of appeal more favorable relief than did the trial court except for just cause.” Thus, while we retain jurisdiction, we find the Fund failed to perfect its appeal and therefore dismiss it.

We reverse the order granting summary judgment against Berry and remand this case back to the trial court, and dismiss the Fund’s appeal.

	Footnotes
2		Senior Justice Joe L. Draughn sitting by assignment.
1		The Fund filed an original petition in intervention seeking subrogation to Berry’s rights.