Court of Appeals of Texas, El Paso.

Diana L. MORRIS, Appellant,

v.

PASO DEL NORTE HEALTH FOUNDATION d/b/a Providence Memorial Hospital and Dr. Richard Dubose, Appellees.

No. 08-99-00438-CV.

|

Aug. 10, 2001.

OPINION

LARSEN.

*1 This case involves the exclusive remedy provision of the workers’ compensation act, and its applicability to Diana Morris, a nurse doing contract work for Paso del Norte Health Foundation d/b/a Providence Memorial Hospital. The trial court granted summary judgment for the hospital and operating room anesthesiologist. We reverse and remand for further proceedings.

FACTS

Diana Morris is a registered nurse. In August 1994, she was working as a “traveling nurse” doing temporary assignments for staffing agencies, including National Care Resources. National Care sent her to work at Providence Memorial Hospital for thirteen weeks as an operating room nurse. National Care paid her $24 per hour for this assignment, plus housing and expenses. It did not withhold taxes from her check. National Care deducted $23 per week from Morris’s paycheck for workers’ compensation insurance.

On September 19, 1994, Morris was assigned to assist in a breast biopsy with Dr. Jose Castillo, a surgeon, and Dr. Richard Dubose, an anesthesiologist, along with a scrub technician. Dubose placed the patient under general anesthesia for the procedure. Immediately following the biopsy, Castillo left the operating room. Morris testified that Dr. Dubose was upset, in a bad mood, and “already griping” because Dr. Castillo had been late for the surgery, which put Dubose behind schedule for another procedure at another hospital. Because the patient weighed over 300 pounds, Morris called for orderlies to assist in moving her from the operating room to recovery. Although Morris had restrained the patient with straps on her ankles and wrists, apparently a scrub technician had unstrapped her. Dr. Dubose “kept huffing and puffing and couldn’t wait” and, without waiting for the orderlies, woke the patient from general anesthesia. The patient started thrashing around and fighting, struck Morris, and caused injuries to her neck, back, and whole body. It is Morris’s contention that had the orderlies arrived when requested, and had Dubose waited to awaken the patient until they were present, her injuries would not have occurred. She brought suit against Richard Dubose and Paso del Norte Health Foundation d/b/a Providence Memorial Hospital, alleging negligence.

Defendants filed a joint motion for summary judgment. It urged that:

PLAINTIFF’S claims of negligence against DEFENDANTS, arising out of her alleged on-the-job injury, are barred as a matter of law because: workers compensation benefits are her only remedy and because PLAINTIFF has elected to receive workers compensation benefits as ratified by her continuing acceptance of such benefits.

PLAINTIFF has pled and confirmed by deposition testimony that she was assigned by National Care to a 13-week job as a registered nurse with Providence Memorial Hospital in El Paso, Texas. It is further pled and admitted that PLAINTIFF’S relationship with Providence, through National Care, was contractual in nature. PLAINTIFF was paid weekly by National Care and protected by Workers Compensation Insurance. Premium payments for the Workers compensation coverage were deducted directly from PLAINTIFF’S weekly paycheck issued by National Care.

*2 Providence entered into a contract with National Care to provide temporary labor contractors. National Care was to provide and did provide Workers Compensation coverage for all of its contract employees, including PLAINTIFF.

The motion relies solely on Morris’s receipt of workers’ compensation benefits to establish immunity from her common law negligence claims. Defendants nowhere address their own status as employer, special employer, or contractors, save a single conclusory statement that “plaintiff was a temporary contract employee hired by Providence through a leasing agency, National Care. There is no controverting summary judgment proof suggesting that plaintiff was anything more than a borrowed servant of Providence.”

In support of summary judgment, defendants submitted plaintiff’s original petition, plaintiff’s deposition testimony, correspondence from the Texas Workers’ Compensation Commission, and an affidavit from Providence’s in-house counsel. The correspondence (which is not authenticated) makes no mention of either defendant and indicates that National Care Resources was Morris’s employer. The affidavit from in-house counsel reads:

During 1994 I was serving as in house counsel for Providence Memorial Hospital in El Paso, Texas. I am personally aware of the contractual relationship between Providence Memorial Hospital and National Care Resource regarding the hiring of temporary contract workers such as Diane Morris. Providence Memorial Hospital’s contract with National Care Resource provided that National Care Resource would provide workers compensation insurance coverage. Furthermore, Providence Memorial Hospital was not the employer of Diane Morris.

Providence Memorial Hospital paid National Care Resource directly and at no time withheld taxes or made other deductions for Diane Morris. Diane Morris reported an injury which allegedly occurred on September 19, 1994. She was specifically informed on numerous occasions to contact the Texas Workers Compensation Commission and her employer’s workers compensation carrier to process a claim. Diane Morris was not an employee of Providence Memorial Hospital and was therefore not covered under Providence Memorial Hospital’s workers compensation program.

Although this affidavit refers to a contract between the hospital and National Care Resources, no contract is included in the summary judgment evidence. Neither did defendants include any evidence from National Care Resources which might establish the nature of its relationship with Morris.

In response to the motion for summary judgment, plaintiff Morris filed her own affidavit, which states:

I am a licensed registered nurse and between the years of 1991 through 1994 I was a traveling nurse who worked at different hospitals on a temporary assignment basis. I was able to secure temporary nursing positions through various nursing job finder agencies. With regard to my nursing assignment in the fall of 1994 at Providence Memorial Hospital in El Paso, Texas, this was a job assignment which was obtained by National Care Resources. National Care Resources is a company which finds temporary nursing jobs for traveling nurses. My assignment at Providence Memorial Hospital was scheduled for a thirteen week period. At no time was I an employee of either National Care Resources or Providence Memorial Hospital, but, rather, as to both entities I was an independent contractor and self-employed. In this connection, I payed for my own malpractice and workers compensation insurance, I provided my own transportation and uniforms, and I paid for my own meals. I also paid my own federal income taxes as a self-employed independent contractor, and no taxes were withheld from income which I received from these temporary nursing assignments.

Standard of Review

*3 Because the propriety of a summary judgment is a question of law, we review the trial court’s decision de novo.¹ The standards for review of a summary judgment are well-established: (1) the movant must show there is no genuine issue of material fact and that it is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, the court must take evidence favorable to the nonmovant as true; and (3) the court must indulge every reasonable inference in favor of the nonmovant and resolve any doubts in the nonmovant’s favor.² When the trial court’s summary judgment does not specify the grounds relied upon, we must affirm the court’s judgment if any of the summary-judgment grounds is meritorious.³ Where, as here, a defendant moves for summary judgment on an affirmative defense, the moving party must conclusively establish all elements of the affirmative defense.⁴ When the grounds expressly presented to the trial court by the movant’s motion are insufficient as a matter of law to support summary judgment, the nonmovant need not have presented controverting evidence to the trial court in order to obtain a reversal.⁵

Summary judgment for the hospital

In her Issue One, Morris urges that summary judgment was in error as there were genuine issues of material fact. In her Issue Two, Morris contends that summary judgment was not proper as defendants cannot avail themselves of the exclusivity and election of remedies provisions of the Texas Workers’ Compensation Act. Conversely, the hospital urges on appeal that it was properly granted summary judgment because it conclusively proved Morris was its borrowed servant, and the exclusive remedy provision of the Texas Workers’ Compensation Act therefore precludes her from pursuing a negligence claim. On the record before us, and using the appropriate summary judgment standard, we must agree with plaintiff Morris.

The Texas Workers’ Compensation Act provides:

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.⁶

Because Morris recovered workers’ compensation benefits, the hospital argues, she is precluded from any additional recovery from Providence. Having itself established it was not Morris’s employer, it can only enjoy the protection of the exclusive remedy provision if it qualifies as Morris’s special employer.⁷ Where an employee works for one employer, but is loaned or supplied to another, the second employer may become a “special employer” for workers’ compensation purposes.⁸ Whether an entity qualifies as a special employer is determined by the right to control; that is, whether the borrowing employer is entitled to specifically direct and control the borrowed employee.⁹

*4 Under Texas Workers’ Compensation law, the entity with the right to control the employee at the time of the accident is the employer for workers’ compensation purposes.¹⁰ Where one entity borrows another’s employee, workers’ compensation law identifies one party as the employer and treats all others as third parties.¹¹ If a contract between a general and special employer expressly provides that one party has the right to control the employee, then that employer is liable for workers’ compensation benefits and is entitled to the Act’s protection from liability for negligence.¹² Where there is no specific contract between entities, however, courts review the facts of each case to determine which entity had the right to control the employee’s activities.¹³

Upon scrutinizing defendants’ motion for summary judgment, we find they never pleaded nor argued that the hospital or Dr. Dubose had the right of control over Morris. The motion contains nothing more than the single conclusory statement that “plaintiff was a temporary contract employee hired by Providence through a leasing agency, National Care. There is no controverting summary judgment proof suggesting that plaintiff was anything more than a borrowed servant of Providence.” Without the contract itself in the record, without any other proof to establish the right of control, and by contending that the summary judgment burden should be set on its head by requiring plaintiff to controvert that she was a borrowed servant, defendants have simply failed to adequately raise or establish the issue.

It is true that defendants raise this argument in appellees’ brief on appeal. Although they attempt on appeal to point out certain evidence which may support a finding that Morris was controlled by the hospital at the time of her injuries (gleaned from plaintiff’s deposition, which was included in the summary judgment evidence in its entirety), summary judgment cannot be granted on grounds not contained in the motion.¹⁴

Because, in the circumstances presented here, the right of control is the essential question in establishing which entity is an “employer” protected by the workers’ compensation laws, and because this argument comes too late when first presented on appeal, we reverse. Without both pleading and proof that defendants possessed the right of control, defendants have failed to establish their right to summary judgment on the grounds of the exclusive remedy provision of Act. Morris’s Issue One is sustained.

Summary judgment for the anesthesiologist

In her Issue Three, Morris urges that summary judgment was improper as to Dr. Dubose because there was no evidence that he contracted to lease Morris’s services. We agree. Morris claims her injuries were caused in part because Richard Dubose, the anesthesiologist, failed to revive the patient from general anesthesia in a safe and proper manner. The trial court granted summary judgment for both the hospital and Dr. Dubose. Defendants’ motion for summary judgment, however, simply contains no grounds for summary judgment which might apply to the doctor. In the brief on appeal he filed jointly with the hospital, Dr. Dubose belatedly urges he is entitled to summary judgment because Morris did not challenge his status as an agent or employee of the employer of the hospital. This argument incorrectly places the burden of proof on Morris, as nonmovant.¹⁵

*5 We repeat that summary judgment can only be granted on grounds raised in the motion.¹⁶ If summary judgment grants greater relief than that requested, we must reverse it.¹⁷ If there is no evidence supporting summary judgment on a particular ground, of course that ground cannot survive appellate scrutiny. Here, it was Dr. Dubose’s task to establish his entitlement to judgment as a matter of law. His summary judgment motion did not do this.

There is a single ground for summary judgment alleged in defendants’ motion: that Morris elected the remedy of workers’ compensation benefits for her injuries, and the exclusive remedy provision of the Texas Workers’ Compensation Act therefore precludes her negligence lawsuit against her employer. The motion is silent as to Ms. Morris’s relationship to the anesthesiologist, and as to the anesthesiologist’s relationship to the hospital. Ms. Morris was not required to respond to grounds which defendants did not raise in their motion. Neither the motion nor its supporting evidence in any way suggest that Dr. Dubose was an agent or employee of Providence Memorial Hospital.¹⁸ For this reason, summary judgment for the anesthesiologist was error, and must be reversed. Issue Three is sustained.

CONCLUSION

Defendants failed to conclusively establish their status as special employers, or an agent thereof. Summary judgment was therefore improper. We reverse and remand for further proceedings consistent with this opinion.

	Footnotes
1		Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex.1994); Texas Dep’t of Ins. v. American Home Assurance Co., 998 S.W.2d 344, 347 (Tex.App.-Austin 1999, no pet.).
2		Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985).
3		Bradley v. State ex rel. White, 990 S.W.2d 245, 247 (Tex.1999).
4		Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.1995).
5		City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979).
6		Tex. Lab.Code Ann. § 408.001(a) (Vernon 1996).
7		Ortiz v. Furr’s Supermarkets, 26 S.W.3d 646, 651 (Tex.App.-El Paso 2000, no pet.).
8		Id.
9		Id.
10		Archem Co. v. Austin Industrial, Inc., 804 S.W.2d 268, 269 (Tex.App.-Houston [1st Dist.] 1991, no writ).
11		Id.
12		Id.
13		Id. at 269-70.
14		McConnell v. Southside I.S.D., 858 S.W.2d 337, 339 (Tex.1993); Andrews v. Diamond, Rash, Leslie & Smith, 959 S.W.2d 646, 652 (Tex.App.-El Paso 1997, pet. denied).
15		See Cathey, 900 S.W.2d at 341.
16		McConnell, 858 S.W.2d at 339; Andrews, 959 S.W.2d at 652.
17		Mafrige v. Ross, 866 S.W.2d 590, 591 (Tex.1993).
18		Indeed, considering the numerous Texas cases in which hospitals have fought hard to establish that physicians were not their agents or employees, such an argument is certainly outside the mainstream, and may be unique. See, e.g., Baptist Memorial Hospital System v. Sampson, 969 S.W.2d 945, 947 (Tex.1998); Garrett v. L.P. McCuistion Community Hospital, 30 S.W.3d 653, 656-57 (Tex.App.-Texarkana 2000, no pet.); Espalin v. Children’s Medical Center of Dallas, 27 S.W.3d 675, 684 (Tex.App.-Dallas 2000, no pet.); Valdez v. Pasadena Healthcare Management, Inc., 975 S.W.2d 43, 45 (Tex.App.-Houston [14th Dist.] 1998, pet. denied); Mitchell v. Shepperd Memorial Hospital, 797 S.W.2d 144, 147 (Tex.App.-Austin 1990, writ denied).