Court of Appeals of Texas, Dallas.

Juanita ESPARZA, Appellant,

v.

SGS-THOMSON MICROELECTRONICS, INC., Appellee.

No. 05-95-01747-CV.

|

Feb. 21, 1997.

Before Justices LAGARDE, KINKEADE, and WHITTINGTON

OPINION

LAGARDE.

*1 Juanita Esparza appeals the trial court’s grant of summary judgment to SGS-Thomson Microelectronics, Inc. In a single point of error, appellant contends that the trial court erred in granting appellee summary judgment because the summary judgment proof failed to establish as a matter of law that she was appellee’s borrowed servant. Consequently, the exclusive remedy provisions of the Texas Workers’ Compensation Act¹ should not bar her common-law negligence claim against appellee. Because we conclude that genuine issues of material fact remain, we reverse the trial court’s judgment and remand to the trial court.

ServiceMaster Company is in the business of supplying cleaning personnel to other companies. ServiceMaster entered into such a contract with appellee. ServiceMaster assigned appellant to clean at one of appellee’s facilities. On February 13, 1992, while cleaning at appellee’s facility, appellant slipped in a pool of oil and injured her back. Appellant filed a workers’ compensation claim. After collecting about $19,000 in workers’ compensation benefits from ServiceMaster’s carrier, appellant sued appellee, claiming appellee’s negligence permitted a dangerous condition that proximately caused appellant’s personal injuries. Appellant claimed damages, costs, and any other relief to which it may be entitled.

Appellee answered, specially excepting to appellant’s omission of the time and location of the alleged incident and the nature of the alleged dangerous condition. Appellee requested that the court strike appellant’s petition or require appellant to replead with greater specificity. Appellee generally denied every allegation in appellant’s petition and further asserted that appellant was barred from any recovery from appellee by the exclusive remedy provisions of the Texas Workers’ Compensation Act. Appellee prayed that appellant take nothing, for its costs, and any other relief to which it may be entitled.

Appellee then moved for summary judgment contending that, although appellant was an employee of ServiceMaster, she was appellee’s borrowed servant. Appellant, therefore, was barred from recovery against appellee based on common law negligence because the Texas Workers’ Compensation Act provides the exclusive remedy for a borrowed servant injured in the course and scope of employment. Appellee requested that the court enter summary judgment in its favor and order that appellant take nothing, that appellee recover its costs, and that the court grant appellee any further relief to which it may be entitled.

Appellee submitted as an attachment to its motion appellant’s original petition and its own first amended answer. Appellee also submitted excerpts from appellant’s deposition, in which appellant stated that she worked for ServiceMaster; ServiceMaster sent her to work at appellee’s facility; she worked at appellee’s facility from September of 1990 until sometime early in 1992; she worked Monday through Friday from ten-thirty at night until about six in the morning; she would have cleaned in a particular place or cleaned a particular spill or emptied a particular trash can if one of appellee’s supervisors asked her because that was her job; she wore a beeper so appellee could direct her to spills; part of her job was to follow the instructions of appellee’s supervisors; if one of appellee’s supervisors asked her to clean a particular part of the floor with a different substance, she would follow those instructions; appellee provided her with a mop, a sterilized bucket, water, and alcohol for cleaning; she reported the accident to some mechanics she found in the cafeteria who helped her clean up the spill; she reported her injuries to appellee’s nurse who sent her home; she reported the accident to ServiceMaster the same day; she filled out accident report forms at ServiceMaster; and she is not entitled to any more workers’ compensation payments from ServiceMaster’s carrier.

*2 Appellee also submitted the affidavit of Beverly Burlingame, appellee’s attorney, stating that the excerpts from appellant’s deposition were true and correct; the affidavit of Patsy Yalenty, appellee’s Facilities Services Manager, stating that she supervised ServiceMaster personnel, including appellant, that the contract provided that ServiceMaster would pay for workers’ compensation insurance, and that appellee maintained the right to direct the work of custodians provided by ServiceMaster; and the affidavit of Grace Herrick, appellee’s Health Care Manager, stating that she supervised the nurse who treated appellant. Appellee also included it’s nurse’s report of the accident, which stated that appellant’s supervisor was ServiceMaster. Appellee also attached its own worker’s compensation policy to the motion.

Appellee also attached the contracts between appellee and ServiceMaster, which stated in relevant part that:

ServiceMaster will furnish all coordinating management, supervisory, training and technical personnel, support service production and special projects personnel required to efficiently accomplish said support services. These personnel shall be direct agents and employees of ServiceMaster and shall include, but not be limited to a Coordinating Manager, who shall be the ServiceMaster chief manager in the performance of the support services to be rendered hereunder.

The contracts provided that ServiceMaster would pay all salaries, payroll and other taxes, fees, and workers’ compensation insurance. If appellee found any personnel unacceptable for any reason, appellee’s chief executive officer could notify ServiceMaster and request the person’s removal; and ServiceMaster would provide an acceptable replacement. ServiceMaster also agreed to sell to appellee the necessary supplies and material for ServiceMaster’s employees’ use. Appellee agreed to provide, at its own cost, certain expendable supplies such as toilet tissue, paper towels, deodorants, washroom soap, and plastic container liners. ServiceMaster agreed to make its coordinating manager available to appellee through a twenty-four hour on-call emergency service. ServiceMaster agreed to maintain insurance coverage for premises liability and workers’ compensation. Appellee agreed to provide space from which ServiceMaster could conduct its services and lockers for use by ServiceMaster employees. Both ServiceMaster and appellee retained ownership and responsibility for repair, maintenance, and replacement of their own equipment. Appellee agreed to make available for ServiceMaster’s use the equipment owned by appellee and being used by appellee at the time the services began under the contract. ServiceMaster agreed to provide additional or replacement equipment as needed. ServiceMaster was to remain appellee’s independent contractor, not appellee’s agent. The first contract specifically listed the areas that ServiceMaster was responsible for cleaning and the tasks that ServiceMaster was responsible for performing. This contract was subsequently amended for price and area increases and extended in time. The contract and its amendments and extensions contain no express provision regarding which company exercised control over the subject employees.

*3 Appellant responded seeking denial of appellee’s motion for summary judgment, contending that she was not appellee’s borrowed servant and that material fact issues precluded summary judgment. Appellant submitted her own affidavit in which she stated that only ServiceMaster told her how to perform her duties, she was employed by ServiceMaster, ServiceMaster paid her salary, she was covered by ServiceMaster’s workers’ compensation carrier, and ServiceMaster always withheld funds from her pay for social security and income tax.

Appellee replied that appellant’s response and affidavit failed to point out any genuine issue of material fact on the borrowed-servant defense. Appellee also responded to appellant’s arguments at the summary judgment hearing, contending that the contracts between appellee and ServiceMaster did not address the issue of whether appellee had the right to control appellant’s work at the time of the accident. Appellee also argued that Yalenty’s rebuttal affidavit established that no ServiceMaster employee with any supervisory or managerial authority was on duty at the facility at the time of the accident, arguing that appellant was under appellee’s direction and control at the time of the accident. Appellee also submitted an unpublished opinion from the Court of Appeals of Beaumont.²

By letter to the trial court, appellant objected to the late-filed affidavit of Yalenty and appellee’s use of an unpublished opinion. Appellant also contended that she was not the borrowed servant of appellee.

Appellee made a final reply in support of its motion for summary judgment, contending again that appellant was its borrowed servant because it controlled the details of appellant’s work at the time of the accident. In this reply, appellee requested that the court consider Yalenty’s late-filed affidavit.

After hearing oral arguments, the trial court granted appellee summary judgment. The trial court’s order stated that it expressly granted leave to file and considered 1) Yalenty’s late-filed affidavit 2) appellee’s responses to arguments raised by appellant at the hearing, 3) appellant’s letter objecting to Yalenty’s late-filed affidavit and appellee’s use of an unpublished opinion, and 4) appellee’s final reply in support of summary judgment. After considering the pleadings and evidence on file and the arguments of counsel, the trial court found that appellant’s claims were barred by the exclusive remedy provisions of the Texas Workers’ Compensation Act because appellant was appellee’s borrowed servant and was injured in the course and scope of her employment. The trial court found that there was no genuine issue of material fact and that appellee was entitled to judgment as a matter of law.

SUMMARY JUDGMENT

In her sole point of error, appellant argues that the trial court erred in granting appellee summary judgment because the summary judgment proof failed to establish as a matter of law that she was appellee’s borrowed servant. Appellee, of course, disagrees.

Applicable Law

*4 The function of a summary judgment is not to deprive a litigant of its right to a full hearing on the merits of any real issue of fact but is to eliminate patently unmeritorious claims and untenable defenses. Gulbenkian v. Penn, 151 Tex. 412, 416, 252 S.W.2d 929, 931 (1952). The purpose of the summary judgment rule is not to provide either a trial by deposition or a trial by affidavit but to provide a method of summarily terminating a case when it clearly appears that only a question of law is involved and that no genuine issue of material fact remains. Gaines v. Hamman, 163 Tex. 618, 626, 358 S.W.2d 557, 563 (1962).

When the defendant is the movant, summary judgment is proper only if the plaintiff cannot, as a matter of law, succeed upon any theory pleaded. See Peirce v. Sheldon Petroleum Co., 589 S.W.2d 849, 852 (Tex.Civ.App.-Amarillo 1979, no writ). Thus, the defendant can prevail by conclusively establishing against the plaintiff at least one factual element of each theory pleaded by the plaintiff, Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970), or by conclusively establishing every factual element of an affirmative defense. Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972). Conversely, the plaintiff can bar summary judgment by presenting evidence that creates a fact question on those elements of the plaintiff’s case under attack by the defendant or on at least one element of each affirmative defense advanced by the defendant. Torres v. Western Cas. Sur. Co., 457 S.W.2d 50, 52 (Tex.1970); see also Puga v. Donna Fruit Co., 634 S.W.2d 677, 680-81 (Tex.1982). Alternatively, the plaintiff can defeat the motion by conceding that the material facts are undisputed, but convincing the court that the defendant’s legal position is unsound. See Estate of Devitt, 758 S.W.2d 601, 602 (Tex.App.-Amarillo 1988, writ denied).

The motion for summary judgment shall state the specific grounds therefor. Tex.R. Civ. P. 166a(c). The judgment sought shall be rendered forthwith if the summary judgment evidence shows that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion or in an answer or any other response. Tex.R. Civ. P. 166a(c).

The standards for reviewing a motion for summary judgment 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 nonmovant 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.

*5 Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985); Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984); Wilcox v. St. Mary’s Univ., 531 S.W.2d 589, 592-93 (Tex.1975).

BORROWED SERVANT

In her sole point of error, appellant argues that the trial court erred in granting appellee summary judgment because the summary judgment proof failed to establish as a matter of law that she was appellee’s borrowed servant.

Applicable Law

On the date of appellant’s accident, the exclusive remedy provision of the Texas Workers’ Compensation Act provided, in relevant part, that “recovery of workers’ compensation benefits under this Act is the exclusive remedy of an employee or legal beneficiary against the employer or an agent, servant, or employee of the employer for the death of or a work-related injury sustained by a covered employee.” See Act of December 11, 1989, 71st Leg., 2d C.S., ch. 1, § 4.01(a), 1989 Tex. Gen. Laws 1, 32, repealed by Act of May 12, 1993, 73rd Leg., R.S., ch. 269, § 5(2), 1993 Tex. Gen. Laws 987, 1273 (current version at Tex. Lab.Code Ann. § 408.001 (Vernon 1996)). This exclusive remedy provision protected an employer that carried workers’ compensation insurance coverage because its employees could only recover workers’ compensation benefits for work-related injuries. See Act of December 11, 1989, 71st Leg., 2d C.S., ch. 1, § 4.01(a), 1989 Tex. Gen. Laws 1, 32 (repealed 1993) (current version at Tex. Lab.Code Ann. § 408.001 (Vernon 1996)). An injured employee of an employer that carried workers’ compensation insurance could not recover from his or her employer by filing suit for common-law negligence. See Act of December 11, 1989, 71st Leg., 2d C.S., ch. 1, § 4.01(a), 1989 Tex. Gen. Laws 1, 32 (repealed 1993) (current version at Tex. Lab.Code Ann. § 408.001 (Vernon 1996)).

The act defined “employer” as “a person that makes a contract of hire, that employs one or more employees, and that has workers’ compensation insurance coverage.” See Act of December 11, 1989, 71st Leg., 2d C.S., ch. 1, § 1.03(19), 1989 Tex. Gen. Laws 1, 3, repealed by Act of May 12, 1993, 73rd Leg., R.S., ch. 269, § 5(2), 1993 Tex. Gen. Laws 987, 1273 (current version at Tex. Lab.Code Ann. § 401.011(18) (Vernon 1996)). At the time of appellant’s injury, however, the act did not specifically address which employer was protected when one employer temporarily assigned an employee to work for a second employer and both employers carried workers’ compensation insurance coverage. See Act of December 11, 1989, 71st Leg., 2d C.S., ch. 1, § 4.01(a), 1989 Tex. Gen. Laws 1, 32 (repealed 1993) (current version at Tex. Lab.Code Ann. § 408.001 (Vernon 1996)).

Texas courts have afforded a temporary employer the protection of the workers’ compensation law, if the temporary employer is a subscriber, by applying the borrowed-servant doctrine. Associated Indem. Co. v. Hartford Accident & Indem. Co., 524 S.W.2d 373, 376 (Tex.Civ.App.-Dallas 1975, no writ). Under this doctrine, the injured workman is held to be the employee of the employer who had the right of control over the details of the work at the time of the injury. Id. The employer who had that right of control is protected from common-law liability, and his workmen’s compensation insurer is liable for statutory benefits. Id.

*6 The central inquiry thus becomes which employer had the right of control of the details of how and the manner in which the employee performed the necessary services. Carr v. Carroll Co., 646 S.W.2d 561, 563 (Tex.App.-Dallas 1982, writ ref’d n.r.e.). When a contract, written or oral, between two employers, expressly provides that one or the other shall have the right of control, solution of the question is relatively simple. Id. at 565. When the contract between the employers is only implied or contains no provision for right of control, the problem becomes difficult. Id. In such cases, right of control is necessarily determined as an inference from such facts and circumstances as the nature of the general project, the nature of the work to be performed by the machinery and employees furnished, length of the special employment, the type of machinery furnished, acts representing an exercise of actual control, the right to substitute another operator of the machine, etcetera. Id. An employer’s carrying an injured workman on its payroll or paying insurance premiums on the workman’s wages is not determinative of whether the employee is the employee of the subscriber for the purposes of the Workers’ Compensation Act if he was temporarily subject to the right of control of another employer at the time of the injury. Associated Indem., 524 S.W.2d at 376.

The important question, therefore, is whether it is understood between the employee and his employers that he is to remain in the allegiance of the first as to a specific act, or is to be employed in the business of and subject to the direction of the temporary employer as to the details of such act. J.A. Robinson Sons, Inc. v. Wigart, 431 S.W.2d 327, 330 (Tex.1968), overruled on other grounds, Sanchez v. Schindler, 651 S.W.2d 249 (Tex.1983). This question is a question of fact in each case. Id. Conflicting testimony and inferences regarding the borrowed servant defense create a fact issue as to which employer had the right of control over the employee. Id. at 332.

Application of Law to Facts

In this case, appellee’s specific ground for summary judgment was the borrowed-servant defense. Appellee could prevail by conclusively establishing every factual element of this defense. See Swilley, 488 S.W.2d at 67. Appellant could bar summary judgment by presenting evidence that created a fact issue on at least one element of the borrowed-servant defense. See Torres, 457 S.W.2d at 52. In deciding the issue, the trial court should have taken as true the evidence favorable to appellant and should have based summary judgment on interested witness testimony only if uncontradicted. See Nixon, 690 S.W.2d at 548-49; Duncan v. Horning, 587 S.W.2d 471, 473 (Tex.Civ.App.-Dallas 1979, no writ). In order for the trial court to have properly granted appellee summary judgment, the evidence must have shown that, as a matter of law, appellant was appellee’s own employee or appellee’s borrowed servant. See Christian v. Texas Employers Ins. Ass’n, 679 S.W.2d 679, 681 (Tex.App.-Dallas 1984, writ ref’d n.r.e.).

*7 The evidence showing that appellee controlled appellant, thus making appellant the borrowed servant of appellee, included: 1) appellant’s deposition, in which she contends she worked at appellee’s facility every day for over a year, appellee’s personnel could have directed her to clean specific areas and spills, appellee provided her with a beeper to notify her of spills, part of her job was to follow appellee’s supervisors’ instructions, she would use particular cleaning agents if appellee’s supervisors directed, appellee provided her with cleaning supplies, and she reported the accident to appellee’s personnel and nurse; 2) Yalenty’s timely-filed affidavit stating that she, as appellee’s employee, supervised ServiceMaster personnel; 3) the contract between ServiceMaster and appellee, which stated that appellee could request that ServiceMaster remove unacceptable personnel, appellee agreed to provide certain supplies, appellee retained ownership and responsibility for repair and replacement of its own cleaning equipment, and appellee provided the cleaning equipment it owned and used at the commencement of the contract; and 4) Yalenty’s late-filed affidavit stating that no ServiceMaster employee with supervisory authority was on duty and that appellant was under appellee’s direction and control at the time of the accident.

The evidence showing that appellant was not the borrowed servant of the appellee, and which we must take as true, includes 1) appellant’s deposition, in which she stated that she worked for ServiceMaster, ServiceMaster sent her to appellee’s facility, she reported the accident to ServiceMaster the day it occurred, she filled out accident report forms at ServiceMaster, and she received workers’ compensation benefits from ServiceMaster’s insurance carrier; 2) appellee’s nurse’s report stating that appellant’s supervisor was ServiceMaster; 3) the contract between ServiceMaster and appellee, which stated that ServiceMaster would provide all supervisory personnel required under the contract, appellee had to request that ServiceMaster remove unacceptable personnel, ServiceMaster would provide acceptable replacements, ServiceMaster sold appellee the necessary cleaning supplies, ServiceMaster’s coordinating manager was available to appellee on a twenty-four hour basis, ServiceMaster retained ownership and responsibility for repair of its cleaning equipment, and ServiceMaster supplied additional or replacement equipment when necessary; and 4) appellant’s affidavit, in which she stated that only ServiceMaster told her how to perform her duties and she was employed by ServiceMaster.

Because the evidence presented is conflicting, appellee did not conclusively establish, as a matter of law, that appellant was its borrowed servant. See Christian, 679 S.W.2d at 681; Robinson, 431 S.W.2d at 332. We hold that a genuine issue of material fact exists regarding appellant’s employment relationship with appellee at the time of the injury. See Robinson, 431 S.W.2d at 330. Accordingly, we reverse and remand the case to the trial court for proceedings consistent with this opinion.

	Footnotes
1		See Act of December 11, 1989, 71st Leg., 2d C.S., ch. 1, § 4.01(a), 1989 Tex. Gen. Laws 1, 32, repealed by Act of May 12, 1993, 73rd Leg., R.S., ch. 269, § 5(2), 1993 Tex. Gen. Laws 987, 1273 (current version at Tex. Lab.Code Ann. § 408.001 (Vernon 1996)).
2		Gaines v. Lamb’s Office Supply, No. 09-92-262 CV, 1994 WL 84051 (Tex.App.-Beaumont 1994, no writ) (not designated for publication).