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

Virginia BURDICK, Appellant

v.

SHELL OIL CO., Robert Brian Parish and Roger Vanderwood, Appellees

No. 14-94-01087-CV.

|

Nov. 22, 1995.

OPINION

MURPHY, Chief Justice.

*1 This is an appeal from a take-nothing summary judgment granted in favor of Shell Oil Company (“Shell”), Robert Parish and Roger Vanderwood, appellees, and against Virginia Burdick, appellant, based on Shell’s statutory immunity under the Texas Workers’ Compensation Act.¹ In appellant’s sole point of error, she argues the trial court improperly granted summary judgment because: (1) Shell’s contract with Peakload Personnel Services (“Peakload”) conclusively established that Peakload had the right to control the details of appellant’s work; (2) fact issues exist as to whether appellant was a borrowed servant based on surrounding facts and circumstances; (3) Shell is estopped to assert appellant was a borrowed servant; and (4) the trial court failed to adjudicate all of appellant’s claims. We reverse and remand.

Appellant worked for Peakload Personnel Services, Inc. (“Peakload”), an employment services company, who assigned her to Shell as a cashier at one of its Houston gasoline service stations. In 1991, two individuals robbed appellant’s station and in the process, seriously injured her. Appellant received workers’ compensation benefits from Peakload. She subsequently filed suit against Shell, alleging that: (1) Shell’s negligent operation and control of the premises caused her injuries; and (2) Roger Vanderwood and Robert Parish, Shell employees, intentionally or negligently made misrepresentations concerning the station’s security. In their motion for summary judgment, appellees contended appellant was a borrowed servant and the compensation benefits appellant had already received discharged them from liability under the Texas Workers’ Compensation Act. See, e.g., Sparger v. Worley Hosp., Inc., 547 S.W.2d 582, 583 (Tex.1977) (recognizing that the “borrowed servant” doctrine protects the employer having the right of control over the details of an employee’s work). Appellees’ motion, however, failed to address appellant’s negligent or intentional misrepresentation claims. The trial court granted appellees’ motion for summary judgment and entered a final judgment purporting to dispose of all of appellant’s claims.

In her first and second arguments, appellant contends the contract between Shell and Peakload conclusively establishes Peakload’s right to control, or in the alternative, fact issues exist as to Shell’s right to control the details of appellant’s work. Texas courts recognize that the general employee of one employer may become the borrowed servant of another employer. Gibson v. Grocers Supply Co., Inc., 866 S.W.2d 757, 760 (Tex.App.-Houston [14th Dist.] 1993, no writ); Marshall v. Toys-R-Us Nytex, Inc., 825 S.W.2d 193, 195-96 (Tex.App.-Houston [14th Dist.] 1992, writ denied). The borrowed servant doctrine applies to workers’ compensation cases and acts to protect those employers who have the right of control over the manner and details of the employee’s work. Gibson, 866 S.W.2d at 760; Marshall, 825 S.W.2d at 196. The central inquiry is to determine which employer has the right to control the details and manner in which the employee performs work. Producers Chemical Co. v. McKay, 366 S.W.2d 220, 225 (Tex.1963); Gibson, 866 S.W.2d at 760 (citing Carr v. Carroll Co., 646 S.W.2d 561, 563 (Tex.App.-Dallas 1982, writ ref’d n.r.e.) (emphasis added)).

*2 However, a contract between two employers providing that one shall have the right to control over certain employees is a factor to be considered, but it is not controlling. Exxon Corp. v. Tidwell, 867 S.W.2d 19, 23 n. 4 (Tex.1993); Exxon Corp. v. Perez, 842 S.W.2d 629, 630 (Tex.1992). While a contract between two employers is an important factor when the right to control an employee is a controverted issue, the fact-finder should consider what the contract contemplated or whether it was even enforced. See Perez, 842 S.W.2d at 630. In the present case, the contract states in pertinent part:

It is understood and agreed that [Peakload] is an independent contractor, and nothing herein contained shall be construed as creating a relationship of employer and employee between [Shell] and [Appellant] ; nor shall anything herein contained be construed to constitute [Peakload] and [Shell] as partners, joint employers or single employers or as having any relationship other than as provided herein (emphasis added).

Texas law defines an “employer-employee relationship” as one in which the alleged employer has the right to control the details of the work performed. See Thompson v. Travelers Indem. Co., 789 S.W.2d 277, 278 (Tex.1990).

In the present case, the parties stated in their contract that no employeremployee relationship existed between Shell and appellant, rather than expressly using the words “right to control.” We find this language fails to delegate conclusively the right of control to either Shell or Peakload. Instead, the contract’s language, at least, raises a fact issue as to what the parties contemplated. Further, the contract provides that both Peakload and Shell had the power to terminate appellant’s employment. When two employers possess the power to terminate, a fact issue exists as to the right of control. See Christian v. Texas Employers Ins. Ass’n, 679 S.W.2d 679, 682 (Tex.App.-Dallas 1984, writ ref’d n.r.e.).

Additionally, the facts and circumstances of this case present fact issues as to the right of control. See Perez, 842 S.W.2d at 630 (finding facts and circumstances important in determining right of control issue). The record demonstrates both Peakload and Shell instructed and supervised appellant as to the details of her work. Cf. Marshall, 825 S.W.2d at 196 (stating general employer did not have right of control because it never instructed nor supervised employee on the details of her work). Specifically, appellant stated in her deposition that Joan Melancon, a Peakload employee, trained and instructed her on the use of the credit card machine and cash register. However, appellant also testified that Brian Parish, a Shell employee, instructed her on various procedures, including: (1) when and where she could eat her meals; (2) whether she could watch television or listen to the radio during slow business periods; (3) what promotional items to emphasize on specific days; and (4) security matters. Moreover, the record indicates appellant regularly worked alone as a night clerk, including the night of the robbery. Thus, the nature of appellant’s employment did not involve direct supervision by either Peakload or Shell as to the details of her work. Cf. Aguilar v. Wenglar Const. Co. Inc., 871 S.W.2d 829, 832 (Tex.App.-Corpus Christi 1994, no writ) (finding special employer had right to control because special employer’s foreman directly supervised employee’s conduct). Instead, appellant relied on the training and instructions provided by both Peakload and Shell to conduct her daily activities. Her reliance on both parties demonstrates a fact issue exists as to the right of control. Therefore, upon thorough review of the record, we find genuine issues of material fact exist whether: (1) the contract between Peakload and Shell delegated the right to control; and (2) Shell possessed the right of control based on surrounding facts and circumstances. We sustain appellant’s sole point of error. Accordingly, we decline to address the substance of appellant’s third and fourth arguments.

*3 The judgment of the court below is reversed and remanded for a trial on the merits.

	Footnotes
1		Tex.Rev.Civ. Stat. Ann. art. 8308-4.01, Act of December 13, 1989, 71st Leg., 2nd C.S., ch. 1, § 4.01, 1989 Tex. Gen. Laws 1, 32, repealed by Act of September 1, 1993, 73rd Leg., R.S., ch. 269, § 1, 1993 Tex. Gen. Laws 987, 1132-32 (current version at Tex. Lab.Code Ann. § 401.001–417.004 (Vernon Pamph.1995)).