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Title: 

McDonald v. Albright

Date: 

March 25, 2010

Citation: 

09-09-00011-CV

Court: 

  • 9th COA – Beaumont

Status: 

Unpublished Opinion

No History

Table of Contents

  • McDonald v. Albright

Court of Appeals of Texas,

Beaumont.

Brandon Lenard McDONALD, Appellant

v.

David ALBRIGHT and Port Iron Ltd., Appellees.

No. 09-09-00011-CV.

|

Submitted on March 11, 2010.

|

Decided March 25, 2010.

Attorneys & Firms

Brandon Lenard McDonald, Sugarland, pro se.

Craig M. Shivers, Jr., Law Offices of Kilpatrick & White, Houston, for appellees.

Before McKEITHEN, C.J., KREGER and HORTON, JJ.

MEMORANDUM OPINION

STEVE McKEITHEN, Chief Justice.

*1 Brandon Lenard McDonald sued Port Iron Ltd., (“Port Iron”) and David Albright for personal injuries sustained while McDonald was working as a temporary employee for Port Iron under the indirect supervision of Albright. The trial court granted the defendants’ motion for summary judgment. On appeal, McDonald contends that insufficient evidence supports dismissal and that the trial court erred in granting summary judgment. We affirm the trial court’s judgment.

McDonald alleged he was injured while working under the direction of Port Iron and that Albright left McDonald working unattended and McDonald caught his finger in a wire stripper. Port Iron and Albright moved for summary judgment on grounds that McDonald has no evidence that either Port Iron or Albright caused McDonald’s injuries. See Tex.R. Civ. P. 166a(i). The motion for summary judgment also asserted that Port Iron and Albright were entitled to summary judgment on the ground that the Texas Workers Compensation Act provides the exclusive remedy for McDonald’s injuries. See Tex.R. Civ. P. 166a(c); see also Tex. Labor Code Ann. § 408.001 (Vernon 2006). McDonald filed a cross-motion for summary judgment on grounds that McDonald was the defendants’ borrowed employee.

The traditional motion for summary judgment filed by Port Iron and Albright alleged that the Texas Workers Compensation Act provides the exclusive remedy for McDonald’s injuries. See Tex. Labor Code Ann. § 408.001(a). The party moving for summary judgment has the burden of showing no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c). In reviewing a summary judgment, we accept as true all evidence favorable to the non-movant, indulge every reasonable inference in favor of the non-movant, and resolve any doubts in the non-movant’s favor. Nixon v. Mr. Prop. Mgmt. Co. ., Inc., 690 S.W.2d 546, 548-49 (Tex.1985). “When both sides move for summary judgment and the trial court grants one motion and denies the other, we review the summary judgment evidence presented by both sides and determine all questions presented.” Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex.2009).

Recovery of workers’ compensation benefits is the exclusive remedy of an employee covered by workers’ compensation insurance coverage against the employer or an agent or employee of the employer for a work-related injury sustained by the employee. Tex. Labor Code Ann. § 408.001(a). The exclusive remedy provision of the Texas Labor Code Section 408.001 bars personal injury claims if the movant establishes: “(1) it was the plaintiff’s employer within the meaning of the TWCA, and (2) it was covered by a workers’ compensation insurance policy.” Western Steel Co. v. Altenburg, 206 S.W.3d 121, 123 (Tex.2006); see Tex. Labor Code Ann. § 408.001(a), (b). In his cross-motion for summary judgment, McDonald asserted that he was the defendants’ borrowed employee, in effect admitting that he was an employee of Port Iron. See Esquivel v. Mapelli Meat Packing Co., 932 S.W.2d 612, 614 (Tex.App.-San Antonio 1996, writ denied). Thus, no issue of fact existed regarding McDonald’s status as an employee.

*2 McDonald contends the appellees failed to establish that Port Iron had a valid workers’ compensation insurance policy. The motion for summary judgment was supported by Albright’s affidavit, which stated that Port Iron had a policy of insurance for workers compensation coverage with Liberty Mutual Insurance Company on the date McDonald was injured and that a true and correct copy of the policy was attached. A policy covering the period of time during which McDonald sustained his injury was attached to the motion for summary judgment. McDonald did not object to the form of the summary judgment evidence. See Tex.R. Civ. P. 166a(f).

On appeal, McDonald argues that the policy attached to the motion for summary judgment is invalid because the policy endorsements are unsigned. This argument is raised for the first time on appeal. “Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.” Tex.R. Civ. P. 166a(c). The summary judgment evidence establishes as a matter of law that the exclusive remedy provision of the Texas Workers Compensation Act bars McDonald’s claims against Port Iron and Albright. For that reason, we do not reach the appellees’ no-evidence motion for summary judgment regarding negligence. We overrule the two issues raised by the appellant and affirm the judgment of the trial court.

AFFIRMED.