Court of Appeals of Texas, Beaumont.

Joseph GAINES, Appellant

v.

LAMB’S OFFICE SUPPLY, Appellee.

No. 09-92-262 CV.

|

March 17, 1994.

OPINION

WALKER.

*1 This is an appeal from an Order granting summary judgment in favor of Lamb’s Office Products (incorrectly sued as Lamb’s Office Supply) and Scott Sims. This appeal is being pursued against Lamb’s Office Products only. We affirm the trial court’s order.

PRIOR PROCEEDINGS

This lawsuit arose out of an injury allegedly sustained by Joseph Gaines while working for Lamb’s Office Products on or about August 13, 1991. Gaines was working for Lamb’s Office Products via an arrangement with Kelly Services, a temporary employment agency. Gaines asserted that he injured his back while riding in a Lamb’s truck being driven by a Lamb’s employee, Scott Sims. Initially, Gaines pleaded negligence against Lamb’s Office Products and its employee-driver. Subsequently, Gaines amended his pleadings to include a breach of contract theory of recovery.

Prior to the appellant filing his second amended petition, the appellee filed a motion for summary judgment on May 12, 1992, on the grounds that the appellant was a borrowed servant at the time of the alleged on-the-job injury and that Lamb’s was protected from suit by the provisions of the Texas Workers’ Compensation Act, Tex.Rev.Civ. Stat. Ann art. 8306, et seq., (repeal effective Sept. 1, 1993). The trial court originally denied the motion for summary judgment on July 16, 1992. On July 21, 1992, appellee filed a motion for rehearing on the motion for summary judgment. Less than a month later, August 18, 1992, after further review and reconsideration, the trial court granted appellee’s motion for summary judgment in whole, including all matters of torts and contracts.

On September 3, 1992, appellant filed a motion to reform the summary judgment on the grounds that the trial court did not sufficiently specify reasons for granting summary judgment. In this motion appellant alleged essentially two separate claims for relief, being:

(1) The Plaintiff was not the borrowed servant of Lamb’s Office Supply [sic] on the date of injury while in the course and scope of his employment with Kelly Services; and

(2) Lamb’s Office Supply [sic] is estopped to deny responsibility for an injury which occurred to the Plaintiff due to the contract which existed between Kelly Services and Lamb’s Office products.

On September 14, 1992, the trial court filed an amended order in which the court made the following findings: 1) that Joseph Gaines was the borrowed servant of Lamb’s Office Products on the occasion in question, therefore, Joseph Gaines was barred by the worker’s compensation statute from suing Lamb’s Office Products since an employee/employer relationship existed, and 2), Lamb’s Office Products was not estopped on the basis of its contract with Kelly Services from raising the borrowed servant defense. Further, the trial court found that the appellee was entitled to judgment as a matter of law and that no fact issue existed on either of the grounds pleaded by the appellant.

Factual Background

*2 The appellant testified by deposition that he had been hired by Kelly Services who referred him to work at Lamb’s in June of 1991. Kelly Services is an employment agency that places workers with other companies on a temporary basis. Appellant testified that at no time did he work at any Kelly office or facility. Kelly Services sent the appellant to Lamb’s where he was to report to Joseph Goff, a Lamb’s supervisor. Upon arriving at Lamb’s, the appellant was given his assignment. The appellant was instructed to work as an assistant deliveryman for Lamb’s.

Upon the appellant’s arrival at Lamb’s, he sought Joe Goff for instructions and supervision with regard to his work as a deliveryman for Lamb’s. Mr. Goff instructed the appellant as to where he was to make the deliveries and he provided the papers that the appellant was to have signed after each delivery was completed. An employee of Lamb’s, Ed James, instructed the appellant as to what products were to be loaded in the truck. All materials, tools and equipment needed to perform the appellant’s work, (trucks, products, bills of lading, hand trucks or dollies) were provided by and belonged to Lamb’s. The only contact appellant had with Kelly Services was to turn in his time card and receive his weekly paycheck.

On or about August 13, 1991, the appellant was a passenger in the bed of a pickup truck owned by Lamb’s Office Products that was being driven by Scott Sims, an employee of Lamb’s. Due to the driving of Mr. Sims, the appellant alleges that he was bounced against the sides of the truck, thus causing severe injuries to his back, head, neck, arms, and legs. Appellant filed a notice of injury and claim for compensation with the Texas Worker’s Compensation Commission and was compensated by the insurance carrier for Kelly Services.

Points of Error

Appellant alleges two points of error. The first point of error reads as follows:

THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF LAMB’S OFFICE PRODUCTS SINCE A FACT ISSUE EXISTS REGARDING THE EXISTENCE OF A CONTRACT WHICH CREATES COMMON LAW LIABILITY NOTWITHSTANDING THE DEFENSE OF BORROWED SERVANT.

Point of error two reads:

THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF LAMB’S OFFICE PRODUCTS SINCE A FACT ISSUE EXISTS REGARDING THE BREACH OF CONTRACT CLAIM ASSERTED BY JOSEPH GAINES AGAINST LAMB’S OFFICE PRODUCTS.

Standard of Review on Summary Judgment

On summary judgment review, the question before a trial court, or an appellate court, is not whether the summary judgment proof raises fact issues with reference to the essential elements of a plaintiff’s claim or cause of action. The question is whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of plaintiff’s cause of action. Gibbs v. General Motors Corporation, 450 S.W.2d 827, 828 (Tex.1970). Rules governing appellate review of a summary judgment record are: 1) the movant for summary judgment has the burden of showing that 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, evidence favorable to the non-movant will be taken as true; 3) every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor. Nixon v. Mr. Property Management, 690 S.W.2d 546, 548-549 (Tex.1985); and 4) the appellate court will not consider evidence that favors the movant’s position unless it is uncontroverted. Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965).

Borrowed Servant

*3 Texas Courts have long recognized that a general employee of one employer may become a borrowed servant of another. Sparger v. Worley Hospital, Inc., 547 S.W.2d 582 (Tex.1977); Carr v. Carroll Co., 646 S.W.2d 561 (Tex.App.-Dallas 1982, writ ref’d n.r.e.). The design of this doctrine is to protect the employer who has the right of control over such employees from common law liability. Carr, 646 S.W.2d at 563. The central question becomes which employer had the right of control of the details and manner of work performed by the employee. If the general employer controls the manner of the employee’s performance and service, the general employer remains liable, but, if the employee is placed under another employer’s control in a matter of performing services, then the employee becomes a borrowed servant of that employer. Producers Chemical Company v. McKay, 366 S.W.2d 220 (Tex.1963).

Under Texas Worker’s Compensation law, the entity with the right to control the employee at the time of the accident is the employer for workers’ compensation purposes. See Smith v. Otis Engineering Corp., 670 S.W.2d 750 (Tex.App.-Houston [1st Dist.] 1984, no writ). An employee in the general employment of one employer may be temporarily loaned to another so as to become the special or borrowed employee of the second employer. Producers Chemical, 366 S.W.2d at 225. Whether a person is an “employee” of the general employer or the special employer to whom he is loaned is determined by which employer had the “right of control” or “control of the manner of performing his services.” Where one entity “borrows” another’s employee, workers’ compensation law identifies one party as the employer and treats the others as third parties.

If a contract exists between the general employer and the special employer which addresses the “control” question, then the contract is determinative of the issue. See Sanchez v. Leggett, 489 S.W.2d 383 (Tex.Civ.App.-Corpus Christi 1972, writ ref’d n.r.e.). Furthermore, if there is no contract or no special contract between the general and special employers, the court will review the facts on each individual case to determine which entity had the right of control of the employee’s activity. Producers Chemical, 366 S.W.2d at 226.

In the case at bar, appellee contends that no contract exists between Lamb’s and Kelly Services. Appellant defends with an unsigned copy of a Kelly Services agreement, however, the appellant was unable to show that a signed agreement existed. Absent a specific contract between a general and a special employer, the right of control over the appellant’s employment must be determined from the inferences, the facts and the circumstances surrounding his employment. See Producers Chemical, 366 S.W.2d at 226. The factual evidence in the case at bar explicitly and unmistakably shows that Lamb’s had and exercised the exclusive right of control over appellant. First, appellant was sent to Lamb’s Office Products and told to report to Joe Goff, a Lamb’s supervisor. Mr. Goff was the one who was to supervise and look after the appellant. Mr. Goff was the person who had control of the details of the appellant’s work. It was also the appellant’s understanding that he would work at Lamb’s as long as he could and as long as they needed him. Every morning the appellant would report to Lamb’s and once the appellant arrived at Lamb’s, he was told upon his arrival as to what his day-to-day activities and duties would be. The only relationship that the appellant had with Kelly Services was to go by that location to obtain his paycheck every Friday.

*4 Another employee, Mr. James, gave directions to appellant as to what products needed to be loaded on the truck. Mr. James was also the appellant’s supervisor when they were on the road. Anything and everything that the appellant needed to get his job done was provided by Lamb’s.

The record clearly reveals that the appellant was a general employee of Kelly Services and was placed under the total and complete control of Lamb’s Office Products in the manner of performing his services. Prior to and at the time of appellant’s injury, appellant was the special borrowed employee of Lamb’s. Lamb’s exercised actual control in every aspect and detail of appellant’s employment.

The Appellant’s Argument

The issue the appellant is urging this court to consider changes the focus from who controlled the details of the work, to, can an employer contractually obligate itself to perform a duty which, if breached, is actionable independently of the Texas Worker’s Compensation Statute?

Since no signed contract was presented to the trial court for consideration, we are obligated to state a reason for our address to appellant’s question. Our reason comes from the strict standard of summary judgment review heretofore set forth, especially the acceptance of evidence favorable to non-movant as true, i.e., the alleged contract.

Appellant maintains that under section 7 of the service contract, the customer, Lamb’s, shall provide Kelly employees with a suitable workplace which complies with all applicable safety and health standard statutes and ordinances, coupled with adequate instruction, assistance, supervision, and a time to perform the requested services. Appellant claims that section 7 of the agreement creates common law liability, thus, any common law liability claims which would be barred under Texas Workers’ Compensation are no longer applicable since Kelly and Lamb’s had entered into an agreement, and thus, Lamb’s had assumed the duty of, (1) providing a suitable workplace, and (2) providing adequate instructions, assistance and supervision and a time to perform the services, and hence, these duties would create a contract and should take precedence over the claim of borrowed servant defense. Appellant’s bottom line contention is that Lamb’s breached its duty under its contract with Kelly by failing to furnish appellant a suitable and safe workplace; that appellant is the intended beneficiary of that contractual agreement and that redress for appellant lies only in and through a common law negligence claim; that whether an actual written contract was signed between appellee and Kelly is immaterial since by Lamb’s acceptance of the service contract, Lamb’s is estopped to deny its duty under section 7 of that contract.

Tex.Rev.Civ. Stat. Ann. art. 8306 § 3 (Vernon 1967)(repeal effective Sept. 1, 1993) states that a recovery for workers’ compensation benefits under this Act, is the exclusive remedy of an employee or legal beneficiary against the employer or agent, servant, or employee of an employer for the death of or a work-related injury sustained by covered employees. Notably, the borrowed servant is covered under this article.

*5 If a borrowing employer has subscribed to workers’ compensation coverage, it is insured and immune from all common law causes of action by its borrowed servant under the exclusivity portion of the Texas Workers’ Compensation Act. Denison v. Haeber Roofing Co., 767 S.W.2d 862 (Tex.App.-Corpus Christi 1989, no writ). In the case at bar, the trial court found that the appellant was indeed a borrowed servant of the appellee, thus, identifying Lamb’s as the borrowing employer who at this time was also a subscriber to Workers’ Compensation coverage. We determine that the uncontroverted summary judgment proof established that the appellant was indeed a borrowed servant. Lamb’s has complete immunity.

Article 8306 § 3 also states that all other remedies are barred by the employee against the employer for the death of or a work-related injury sustained by a covered employee. The appellant admits in his brief that he cannot cite any authority that a personal injury action based on contract is not precluded by the exclusivity provision of the Workers’ Compensation Act. The exclusivity provision of the Workers’ Compensation Act is not a bar to claims that are not based on non-job-related accidents or injuries. However, if claims are made by an injured party and those claims can be traced to his job as a job-related injury, then the exclusivity provision of this article does apply.

When the Texas Legislature enacted this provision, the Legislature was aware of temporary employments. The Legislature chose to retain the exclusivity provision of this Act and made no distinction on the basis of employment through permanent or temporary employment agencies.

Appellant relies on Aranda v. Insurance Co. of North America, 748 S.W.2d 210 (Tex.1988) for the proposition that exclusivity provision of article 8306 § 3 cannot be read as a bar to a claim that is not based on job-related injury. The appellant claims that his action is based on breach of contract; therefore, this article does not apply. We disagree.

Furthermore, if an employee files notice of injury and chooses to accept and collect workers’ compensation award benefits, he is precluded by this election, as a matter of law, from maintaining an action at common law for damages against his employer. Standridge v. Warrior Constructors, Inc., 425 S.W.2d 472 (Tex.Civ.App.-Houston [14th Dist.] 1968, no writ). Also, in Massey v. Armco Steel Co., 652 S.W.2d 932 (Tex.1983), our Supreme Court held that where an employee seeks benefits under the Workers’ Compensation Act such action bars further relief at common law for negligence against his employer.

In the case at bar, appellant elected to recover benefits under the Workers’ Compensation Act. Since appellant elected to pursue his claim for worker’s compensation, he is therefore estopped to claim damages of common law or under the contract theory. Appellant chose to pursue his compensation claim against Kelly and is therefore estopped from pursuing either a negligence action or a contractual claim against Lamb’s.

*6 We agree with the appellee that there was no material fact issue raised and thus, as a matter of law, the appellee was entitled to judgment. We overrule points of error one and two. We affirm the trial court judgment.

AFFIRMED.

Before WALKER, C.J., and BROOKSHIRE and BURGESS, JJ.