United States District Court, W.D. Texas, San Antonio Division.

OMAR ORDONEZ, Plaintiff,

v.

ROGERS ELECTRICAL SERVICE CORPORATION, SEEFRIED DEVELOPMENT MANAGEMENT, INC., W.G. YATES & SONS CONSTRUCTION CO., Defendants.

SA-22-CV-01263-OLG

|

Filed 10/17/2025

Attorneys & Firms

Christopher Chad Pinkerton, The Pinkerton Law Firm, PLLC, Houston, TX, for Plaintiff.

Brett W. Levinson, Deas & Associates, San Antonio, TX, for Defendant ROGERS ELECTRICAL SERVICE CORPORATION.

Jennifer G. Durbin, Katherine M. Willis, Mark Robert Stein, Allen, Stein, Durbin, P.C., San Antonio, TX, for Defendant SEEFRIED DEVELOPMENT MANAGEMENT, INC.

Katherine Merrill Andre, Pappas Grubbs Price PC, Austin, TX, for Defendant W.G. YATES & SONS CONSTRUCTION CO.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

ELIZABETH S. (“BETSY”) CHESTNEY UNITED STATES MAGISTRATE JUDGE

*1 To the Honorable United States District Judge Orlando L. Garcia:

This Report and Recommendation concerns Defendants Lin R. Rogers Electrical Contractors and Rogers Electric Service Corporation’s Motion for Summary Judgment [#71]. All pretrial matters in this case have been referred to the undersigned for disposition pursuant to Western District of Texas Local Rule CV-72 and Appendix C [#51]. The undersigned therefore has authority to enter this recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, it is recommended that Defendants’ motion be granted.

I. Background

Plaintiff Omar Ordonez originally filed this action in state court against Defendants Amazon.com Services, LLC; Amazon Logistics, Inc.; Rogers Electrical Service Corporation; and Eaton Corporation regarding an on-the-job injury allegedly caused by Defendants’ negligence. According to the Original Petition, Ordonez sustained burn injuries to his face and leg due to the malfunction of an electrical panel manufactured by Eaton Corporation (“Eaton”) while working on premises under the control of Amazon.com Services and Amazon Logistics, Inc. (“the Amazon Defendants”). (Orig. Pet. [#1-1], at 1–8.) Ordonez’s Original Petition alleged that Rogers Electrical Service Corporation (“Rogers Electrical Service”) negligently installed the panel. (Id.)

Eaton removed the case to federal court on the basis of diversity jurisdiction. Following removal, Ordonez filed a First Amended Complaint, adding two additional Defendants—Seefried Development Management, Inc., and W.G. Yates & Sons Construction Co. (First Am. Compl. [#19], at 1–16.) According to the First Amended Complaint, the Amazon Defendants and Seefried Development Management, Inc. (“Seefried”) hired W.G. Yates & Sons Construction Co. (“Yates”) as the general contractor to oversee construction operations at the Amazon facility at issue. (Id. at ¶ 5.3.) Yates in turn allegedly hired Rogers Electrical Service as the electrical subcontractor. (Id. at ¶ 5.4.)

Rogers thereafter filed a Third Party Complaint against GEA Integral Solutions LLC and GEA Electric TX, LLC (“GEA Defendants”), alleging that any injuries to Ordonez were sustained while he was employed by the GEA Defendants as a temporary employee pursuant to a Master Staffing Agreement with Rogers Electrical Service. (Third Party Compl. [#32], at 1–41.) Ordonez then moved for leave to file a Second Amended Complaint to add Lin R. Rogers Electrical Contractors, Inc. (“Rogers Contractors”), as a seventh Defendant, on the basis that this entity was the actual “Rogers entity” hired by Yates to perform the electrical work on the project. (Second Am. Compl. [#56], at 1–17.) Yates then filed a Crossclaim against Rogers Contractors. (Crossclaim [#75], at 1–15.) Ordonez has stipulated to the dismissal of his claims against Eaton and the two Amazon Defendants. (Stipulation [#63]; Order of Dismissal [#69].)

Rogers Electric Service and Rogers Contractors (collectively “the Rogers Defendants”) have moved for summary judgment against Ordonez, arguing that Ordonez’s claims against Rogers Contractors are barred by the Texas Workers’ Compensation Act. The Rogers Defendants also argue that Rogers Electric Service owed no legal duty to Ordonez because his work was not controlled or directed by this Rogers entity. In support of their motion, the Rogers Defendants also filed a supplement containing additional evidence and exhibits [#73]. The Rogers Defendants filed their motion on August 7, 2025, making any response in opposition to the motion due by August 21, 2025. See W.D. Tex. Loc. R. CV-7(d). Ordonez did not file a response to the motion. The motion is ripe for the Court’s review.

II. Summary Judgment Standard

*2 Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Fed. R. Civ. P. 56(c). A dispute is genuine only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The party moving for summary judgment bears the initial burden of “informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp., 477 U.S. at 323. Once the movant carries its burden, the burden shifts to the nonmoving party to establish the existence of a genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Wise v. E.I. Dupont de Nemours & Co., 58 F.3d 193, 195 (5th Cir. 1995). The non-movant must respond to the motion by setting forth particular facts indicating that there is a genuine issue for trial. Miss. River Basin Alliance v. Westphal, 230 F.3d 170, 174 (5th Cir. 2000). The parties may satisfy their respective burdens by tendering depositions, affidavits, and other competent evidence. Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992).

In the Western District of Texas, the failure to timely respond to a motion may result in the Court granting it as unopposed. See W.D. Tex. Loc. R. CV-7(d)(2). Nevertheless, “[a] district court may not automatically grant summary judgment simply because the nonmovant fails to respond.” John v. State of La. (Bd. of Trs. for State Colls. & Univs.), 757 F.2d 698, 710 (5th Cir. 1985) (citing Boazman v. Econ. Lab’y, Inc., 537 F.2d 210, 213–14 (5th Cir. 1976)). “Even when a local rule equates the failure to file a response with consent to a motion for summary judgment, the motion must still satisfy the requirements of [Rule 56].” O’Connors Federal Rules Civil Trials, Ch. 7-B § 4.1 (2023 ed.) (citations omitted). However, if the non-movant fails to respond, the Court may treat the movant’s assertions of fact as “undisputed for purposes of the motion.” Fed. R. Civ. P. 56(e)(2). In that case, the only question for the Court is whether, based on those undisputed facts, “the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

III. Summary Judgment Evidence

The summary-judgment evidence provided to the Court by the Rogers Defendants is uncontested, as Ordonez did not file a response to Defendants’ motion. This evidence establishes that Rogers Contractors and Rogers Electrical Service are two distinct entities, and the companies perform different work and services. (Amburgey Decl. [#71-11], at ¶ 2.) Rogers Contractors generally performs ground-up (or new) construction work, while Rogers Electrical Service generally performs service and maintenance work after a facility has been constructed. (Id.) On September 9, 2015, Rogers Contractors, Rogers Electrical Service, and GEA Integral Solutions, LLC, entered into a Master Staffing Agreement (“Staffing Agreement”) for GEA to provide and furnish employees to the Rogers Defendants to meet their additional staffing needs for electrical projects on an as needed basis. (Id. at ¶¶ 3–4; Staffing Agreement [#71-4], at 1–7.)

*3 Under the Staffing Agreement, GEA employees provide additional labor support to assist in the work performed by Rogers Contractors or Rogers Electrical Service and at the direction and under the control of Rogers Contractors or Rogers Service. (Amburgey Decl. [#71-11], at ¶ 5; Staffing Agreement [#71-4], at 1–7.) More specifically, Rogers Contractors or Rogers Electrical Service (i) would notify GEA when either entity needed to borrow a GEA employee to perform their work; (ii) determine the scope of the employee’s work and locations of the employee’s assignment; and (iii) supervise and control the employee’s work. (Amburgey Decl. [#71-11], at ¶ 5; Staffing Agreement [#71-4], at 1.) Rogers Contractors and Rogers Electrical Service had the right to terminate the employee’s assignment or replace the employee with another GEA employee. (Amburgey Decl. [#71-11], at ¶ 5; Staffing Agreement [#71-4], at 1.) The Staffing Agreement further provides, and the contracting parties intended, that a GEA employee’s relationship with Rogers Contractors and Rogers Electrical Service be a “borrowed servant” relationship (with GEA being the traditional employer and Rogers Contractors or Rogers Electrical Service being the borrowing employer) or temporary-worker relationship (with GEA being the temporary staffing provider and Rogers Contractors or Rogers Electrical Service being the client company). (Amburgey Decl. [#71-11], at ¶ 6; Staffing Agreement [#71-4], at 2.)

The undisputed summary-judgment evidence further establishes that Rogers Contractors was hired as a subcontractor by Yates to perform electrical and fire alarm systems work on construction at an Amazon facility. (Amburgey Decl. [#71-11], at ¶ 6; Velasquez Dep. [#71-3], at 9:11–20, 11:21–12:18, 16:4–14.) On March 22, 2022, Ordonez was working at the Amazon facility construction site performing housekeeping, organizing, and general cleanup of electrical rooms, when the switch gear in the electrical room caught fire. (Incident Report [#71-6], at 1, 5.) As a result of this electrical event, Ordonez sustained first-, second-, and third-degree burns to his legs, right hand, and part of his face. (Id. at 1; Ordonez Dep. [#71-1], at 61:2–65:20.)

It is undisputed that, at the time of the incident, Ordonez was employed by GEA and assigned to Rogers Contractors for work at the Amazon facility as a temporary laborer. (Amburgey Decl. [#71-11], at ¶ 8; Ordonez Dep. [#71-1], at 26:6–27:10, 31:7–15, 35:3–15, 36:9–18; Flores Dep. [#71-2], at 115:12–23; Velasquez Dep. [#71-3], at 16:17–17:1.) Ordonez testified in his deposition that, although he was employed by GEA, he was on an assignment for Rogers Contractors, he answered to supervisors at Rogers Contractors, and Rogers Contractors was the company that was “in control of the work space that contained the electrical room where [he was] cleaning at the time of the incident.” (Ordonez Dep. [#71-1], at 134:2–135:1.) Rogers Contractors instructed Ordonez on what work to complete, provided training to Ordonez, supervised and oversaw Ordonez’s work, and controlled the “means, methods, and details” relating to the work being completed on the day of the incident. (Amburgey Decl. [#71-11], at ¶¶ 8; Ordonez Dep. [#71-1], at 132:8–21, 134:13–19; Flores Dep. [#71-2], at 36:15–24, 107:6–108:12; Velasquez Dep. [#71-3], at 17:2–20:7.) GEA did not provide anything to Ordonez after assigning him to Rogers Contractors for employment. (Velasquez Dep. [#71-3], at 18:16–19:6.)

Per the parties’ agreement, GEA was to maintain workers’ compensation insurance covering all employees assigned to Rogers Contractors or Rogers Electrical Service. (Staffing Agreement [#71-4], at 3.) The record contains a copy of GEA’s workers’ compensation policy, which was issued by Berkshire Hathaway and NorGuard Insurance Company and was in effect on the date of injury. (Insurance Policy [#71-8], at 1–50.) Per both the Staffing Agreement and the policy, Rogers Contractors and Rogers Electrical Service were listed as additional insureds and certified holders under GEA’s workers’ compensation policy. (Amburgey Decl. [#71-11], at ¶¶ 7, 10.) Rogers Contractors additionally obtained its own workers’ compensation and employers’ liability policy through Travelers, which covers Rogers Electrical Service as an additional insured and was also in effect on the date of Ordonez’s injury. (Amburgey Decl. [#71-11], at ¶ 11; Insurance Certificate [#71-7], at 1–2; Travelers Policy [#73-1], at 1–37.) After Ordonez sustained his injuries, he made a claim for worker’s compensation benefits based on the insurance policy maintained by GEA. (Workers’ Comp. Docs. [#71-10], at 1–7.) Ordonez testified in his deposition that he received workers’ compensation benefits in connection with this claim and was paid weekly benefits until his doctor cleared him to return to work. (Ordonez Dep. [#71-1], at 44:9–45:19; Workers’ Comp. Docs. [#77-10], at 1–7.)

IV. Analysis

*4 The District Court should grant the motion for summary judgment filed by the Rogers Defendants because the undisputed summary-judgment record establishes that Ordonez’s claims against Rogers Contractors are barred by the Texas Workers’ Compensation Act, and Rogers Electrical Service owed no legal duty to Ordonez with respect to the workplace incident that caused his injuries.

A. Rogers Contractors is entitled to summary judgment.

In this diversity action, the substantive law of Texas applies. See Labaty v. UWT, Inc., 121 F. Supp. 3d 721, 742 (W.D. Tex. 2015). Rogers Contractors is entitled to summary judgment because his negligence claims seeking compensation for his workplace injuries are barred by Texas’s workers’ compensation framework.

The Texas Workers’ Compensation Act (“TWCA”) provides that a claim for “workers’ compensation benefits is the exclusive remedy of an employee covered by workers’ compensation insurance coverage.” Tex. Lab. Code § 408.001(a). This exclusive remedial provision bars all causes of action against an employer, except a claim for exemplary damages in the event of an employee’s death. Id. § 408.001(b). In short, the TWCA prohibits employees from seeking common-law remedies or pursuing negligence actions against their employers by making workers’ compensation benefits an injured employee’s exclusive remedy. Port Elevator-Brownsville, L.L.C. v. Casados, 358 S.W.3d 238, 241 (Tex. 2012).

Employees may have more than one employer within the meaning of the TWCA, and “each employer who subscribes to workers’ compensation insurance may raise the exclusive-remedy provision as a bar to claims about the injury.” Id. at 242. Texas has long recognized that a general employee of one employer may become the “borrowed servant” of another employer, where the borrowing employer has the right to control the progress, details, and methods of operations of the work. Limestone Prods. Distrib., Inc. v. McNamara, 71 S.W.3d 308, 312 (Tex. 2002); Sparger v. Worley Hosp., Inc., 547 S.W.2d 582, 583 (Tex. 1977).

Under the TWCA, an employee of a temporary employment agency may also be considered the employee of the client company to whom the worker is assigned. See Wingfoot Enters. v. Alvarado, 111 S.W.3d 134, 143 (Tex. 2003). Under Section 93.004, when a temporary employment service carries workers’ compensation insurance, the exclusive-remedy protections from that insurance extends to the clients of the temporary employment service. See Tex. Lab. Code § 93.004(b). This provision does not turn on who exercises a right of control or whether the client company fits the traditional definition of a borrowing employer. See id. The only requirements are that (1) a temporary employment service provide an employee to the client company, and (2) the temporary employment service be a workers’ compensation subscriber. See id.; Robles v. Mount Franklin Food, L.L.C., 591 S.W.3d 158, 166 (Tex. App.—El Paso 2019, pet. denied).

Ordonez alleges negligence claims against Rogers Contractors regarding his non-fatal work-related injury. Because all of Ordonez’s claims against Rogers Contractors fall under the exclusivity provision of the TWCA, workers’ compensation is Ordonez’s only remedy. The undisputed summary judgment evidence establishes that Rogers Contractors was Ordonez’s borrowing employer because Rogers Contractors controlled his work at the Amazon facility. Alternatively, Ordonez was working for Rogers Contractors as a temporary employee wherein GEA, the temporary employment service, was a workers’ compensation subscriber. It is undisputed that Ordonez was an employee covered under two workers’ compensation policies at the time of injury—the Travelers policy obtained by Rogers Contractors and the Berkshire Hathway and NorGuard Insurance policy obtained by GEA listing the Rogers Defendants as additional insureds—and that he did in fact receive workers’ compensation benefits for his injuries. Given the foregoing, Ordonez’s negligence claims against Rogers Contractors are barred under the exclusive-remedy provision of the TWCA.

B. Rogers Electrical Service is also entitled to summary judgment.

*5 Rogers Electrical Service is entitled to summary judgment because it owed no legal duty to Ordonez. Ordonez’s negligence claims against Rogers Electrical Service are contingent on a showing of control to establish a legal duty. See Cent. Ready Mix Concrete Co., Inc. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007). The undisputed summary-judgment evidence establishes that Ordonez did not work for Rogers Electrical Service; his work was not controlled in any way by Rogers Electrical Service; and Rogers Electrical Service therefore owed him no legal duty that could be the basis for a negligence cause of action. Alternatively, even if there were some evidence of control on the part of Rogers Electrical Service, Ordonez’s claims would be barred by the workers’ compensation bar for the same reasons set forth herein.

V. Conclusion and Recommendation

Having considered Defendants’ motion for summary judgment, the lack of response by Ordonez, the undisputed summary-judgment record, and governing law, the undersigned recommends that Defendants Lin R. Rogers Electrical Contractors and Rogers Electric Service Corporation’s Motion for Summary Judgment [#71] be GRANTED and summary judgment entered as to all of Ordonez’s claims against the Rogers Defendants and that these Defendants be dismissed with prejudice from this lawsuit.

VI. Instructions for Service and Notice of Right to Object/Appeal

The United States District Clerk shall serve a copy of this report and recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a “filing user” with the clerk of court, or (2) by mailing a copy to those not registered by certified mail, return receipt requested. Written objections to this report and recommendation must be filed within fourteen (14) days after being served with a copy of same, unless this time period is modified by the district court. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Objections are limited to no more than 20 pages unless leave of court is granted. The party shall file the objections with the Clerk of Court and serve the objections on all other parties. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusive or general objections. A party’s failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the district court. Thomas v. Arn, 474 U.S. 140, 149–52 (1985); Acuña v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to file timely written objections to the proposed findings, conclusions and recommendations contained in this report and recommendation shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the un-objected-to proposed factual findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc), superseded by statute on other grounds, 28 U.S.C. § 636(b)(1).

SIGNED this 17th day of October, 2025.