Court of Appeals of Texas, Beaumont.

Robert NICHOLS, Patricia Ann Nichols, Amber Nichols and Kari Nichols, Appellants,

v.

THORNBERRY OIL FIELD SERVICE, INC., O.T. Thornberry, James Loge and Jonathan M. Thornberry, Appellees.

No. 09-92-122 CV.

|

Sept. 30, 1993.

Attorneys & Firms

George Chandler, Lufkin, Ernest Coker, Jr., Coker & Wood, Conroe, L. Brent Farney, Law Offices of George Chandler, Lufkin, for appellant.

Raymond Matthews, Tekell, Book, Matthews & Limmer, Jeff Murphrey, Tekell, Book, Matthews & Limmer, Houston, for appellee.

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

OPINION

WALKER, Chief Justice.

*1 This is a personal injury action brought by Robert Nichols, his wife, Patricia Ann Nichols, and their minor children, Amber Nichols and Kari Nichols, against Thornberry Oil Field Service, Inc., O.T. Thornberry, James Loge and Jonathan M. Thornberry. In this opinion we may refer to the Nichols as appellants or plaintiffs, and appellees as defendants.

The incident from which this suit originated was an explosion that occurred on May 21, 1984, when Robert Nichols began welding on a tank which was evidently filled with volatile fumes. Ultimately, plaintiffs sued the defendants under theories of negligence, gross negligence, intentional tort, invasion of privacy, trespass and insurance code violations.

A central issue at trial was whether Robert Nichols was acting as an independent contractor or was an employee of Thornberry Oil Field Service, Inc. The jury below found that Robert Nichols was acting as an employee at the time of the explosion and that the defendants did not intentionally try to injure him. Judgment was entered in favor of the defendants from which appellants make their appeal.

Factually, on May 21, 1984, near Grangerland, Montgomery County, Texas, Robert Nichols was working on a job for Thornberry Oil Field Service, Inc. Appellants say that Robert Nichols was an independent contractor on this job at the time of the explosion, which resulted in serious bodily injury. Appellees contend, and the jury so found, that Mr. Nichols was acting as an employee of Thornberry at the time. A tank exploded when he ignited his welding torch. In reviewing the evidence offered and admitted in this jury trial, Mr. Jonathan Thornberry testified that Mr. Nichols had been working for Thornberry for three or more years at the time of the accident. Jonathan Thornberry further testified that Thornberry Oil Field Service, Inc., had the right to control the details of how Mr. Nichols performed his work. Evidence revealed that Mr. Nichols’ paychecks showed no deductions for taxes, social security, et cetera, indicating that this was done at Mr. Nichols’ request.

Appellants bring to this Court nineteen points of error. We address only those points necessary to effectuate reversal and remand.

Appellants’ points of error one and two contend that the trial court erred in denying plaintiffs’ motion for judgment and that the trial court erred in refusing to submit a question to the jury on whether Defendants’ workers’ compensation insurance “actually covered” Nichols on the date of his injury and further erred by excluding evidence tending to show that Nichols was not a covered employee on the date of injury.

Here appellants are contending that because the jury found Nichols to be an employee of the defendants at the time of the explosion, but did not have the opportunity to find that Nichols was an employee covered by workers’ compensation insurance at the time of the explosion, appellants are entitled to judgment on the verdict for defendants’ negligence at common law. Appellants suggest that we should reverse the trial court and render judgment on the verdict. Perhaps more clearly stated, appellants position that if Nichols were found to be an employee, but there was no finding that he was actually covered by a policy of workers’ compensation insurance at the time of his injury, Nichols was not only entitled to all relief without regard to any workers’ compensation bar, but defendants would be stripped of all their common law defenses, including contributory negligence. Citing Tex.Rev.Civ.Stat.Ann. art. 8306, § 4 (Vernon Supp.1993)(repealed 1991); Cabrera v. Delta Brands, Inc., 538 S.W.2d 795 (Tex.Civ.App.-Texarkana 1976, writ ref’d n.r.e.). Interestingly, appellants contend that the trial court entered a take-nothing judgment against the plaintiffs on a verdict that was in fact in favor of the plaintiffs because the defendants’ workers’ compensation bar defense was not established. Appellants further contend that even though Robert Nichols was found to be fifty percent negligent, the trial court should have entered judgment for plaintiff for the full amount of damages in that Thornberry Oil Field Service, Inc., was not entitled to any contributory negligence defense under Tex.Rev.Civ.Stat.Ann. art. 8306, §§ 4, 1(1) (Vernon Supp.1993)(repealed 1991).

*2 It is undisputed that Robert Nichols received workers’ compensation benefits after the explosion. Appellants contend that workers’ compensation benefits were accomplished, as to Nichols, only by back-dating an employment application. The evidentiary scenario regarding the back-dating of Nichols employment application is as follows. On the first night Nichols was in the hospital after the explosion, his wife, Patricia, was approached by Jonathan Thornberry and told to come down to the office to sign an employment application for Robert. Specifically, Patricia testified that Jonathan Thornberry called her at the hospital the night of the explosion and told her to step out of Robert’s room and to call him back at a pay phone, which she did. When Patricia made the call to Jonathan Thornberry, Thornberry stated, according to Patricia, “that there was a problem, that we needed to get some papers signed in order for the hospital bills to be paid. And not to say anything to Robert about it. He did not need to worry about this.”

Patricia Nichols also testified that Thornberry told her to back-date the employment application. Thornberry, himself, admitted under oath that he “probably” told her to do this. Thornberry’s own bookkeeper’s recollection is more specific. She, Julie Loge, testified that Robert Nichols’ job application was filled out after he was injured, and recalls Thornberry providing the application to Patricia Nichols.

At trial plaintiffs attempted to tender evidence to show that if Nichols’ job application were back-dated then his injuries would not be covered by workers’ compensation benefits. Since the trial court disallowed this evidence, plaintiffs tendered same by bill of exception. The bill of exception evidence included the deposition of Tim Wesneski, adjustor for Texas Employers Insurance Association.

Appellants direct our attention to the testimony of Texas Employers Insurance Association adjustor, Tim Wesneski, which provided that if the employment status was back-dated, he would not be covered under the “comp” policy. Sam Henderson, another adjustor, testified that if the employment application were back-dated, Nichols would not have been an employee under the “comp” policy on that date. Robert Hughes, an insurance expert, reviewed Thornberry’s and Texas Employers Insurance Association’s records and found that there was no premium charge for welders.

In summary, appellants contend that the workers’ compensation bar is a defensive issue, requiring defendants to plead, prove and seek a submission of the question in the charge, citing Guerrero v. Standard Alloys Manufacturing Co., 598 S.W.2d 656 (Tex.Civ.App.-Beaumont 1980, writ ref’d n.r.e.). Specifically, appellants contend that defendants had to affirmatively show both that Nichols was an employee at the time of the injury, and that he was a “covered” employee at the time of the injury. Defendants did not prove these facts nor did defendants seek a jury question to establish whether Nichols was a “covered” employee. Plaintiffs, Nichols, made a request for this jury question, same being refused by the trial court after strenuous objection by defendants. No resolution of the question of “covered” employee was made at the trial below.

*3 Appellees are correct in positioning that under the exclusive remedy provision of the Texas Workers’ Compensation Act, an employee of a “subscriber” has no right of action against his or her employer. Tex.Rev.Civ.Stat.Ann. art. 8306, § 3a (Vernon Supp.1992)(repealed 1991). Whether defendants are entitled to prevail under the exclusive remedy provision is a question of law to be addressed by the trial court when judgment is rendered. See Carr v. Carroll Co., 646 S.W.2d 561, 562 (Tex.App.-Dallas 1982, writ ref’d n.r.e.). In determining this question, we must look to the pleadings, and the proof. The defendant, appellees herein, must have pleaded and provided evidence at trial: (1) that the injured worker was acting as an employee at the time of the alleged tort; and (2) that defendant, Thornberry Oil Field Service, Inc., was a subscriber under the Workers’ Compensation Act. See Exxon Corp. v. Perez, 842 S.W.2d 629 (Tex.1992); Moore v. Cotter and Co., 726 S.W.2d 237 (Tex.App.-Waco 1987, no writ)(proof that workers’ compensation existed is essential element of borrowed servant defense).

We agree with appellees that the question of subscribership under the Workers’ Compensation Act is a question of law to be determined by the trial court. We disagree with appellees that whether a particular employee is covered under such subscription is also a question of law. The very facts of the case before us dictate the soundness of this position. Throughout this lengthy trial the status of Robert Nichols as an employee or independent contractor was hotly disputed. The jury resolved that dispute by finding as a fact that Robert Nichols was an employee of Thornberry Oil Field Service, Inc. We find nothing in this record nor in the final judgment where Robert Nichols was determined to be an employee covered under appellees’ workers’ compensation insurance. Query: Where does the verdict and the judgment of the trial court leave Robert Nichols? The answer is, Robert Nichols has been left in a dilemmic vacuum, both at law and in fact. We think Nichols’ plight becomes clear from a review of the testimony of Tim Wesneski, adjustor for Intervenor, Texas Employers Insurance Association. Even though Mr. Wesneski’s testimony was offered through bill of exception, we view same as representative of the position of Intervenor. Mr. Wesneski testified that if Mr. Nichols’ employment application had been back-dated he would not be covered by workers’ compensation insurance. It is difficult to see how a trial court could rule as a matter of law to the contrary.

Since no determination was made on whether Nichols was a covered employee, appellants urge this Court to reverse the trial court’s judgment and render judgment based upon the jury’s verdict. Jury Question No. 2 inquired “Did the negligence, if any, of the persons or entity named below proximately cause the occurrence in question?” The jury attributed negligence and proximate cause to Thornberry Oil Field Service, Inc. and Robert Nichols, further attributing a percentage of negligence of fifty percent to Thornberry Oil Field Service, Inc., and fifty percent to Robert Nichols. The damages awarded by the jury, according to appellants’ calculations, which include pre-judgment interest, totals in excess of $270,000. Were this Court of the opinion the question of whether Robert Nichols was a covered employee to be a question of law, we could simply render judgment on the jury verdict. We believe, however, that to do so would simply further the error committed by the trial court in not submitting the “covered employee” question to the jury. Appellants’ point of error two is in all things sustained, which calls for a reversal of the trial court’s judgment and a remand to the trial court for new trial on appellants’ cause of action for personal injury.

*4 Appellants’ points of error three, four, five and six are directed to and challenge the jury’s determination that Nichols was an employee of Thornberry Oil Field Service, Inc. Appellants contend in these points of error that the trial court erred in denying Plaintiffs’ Motion for Judgment non obstante veredicto; “No Evidence” to support the jury’s finding; “Insufficient Evidence” to support the jury’s finding; and the jury’s finding that Nichols was an employee was against the great weight and preponderance of the evidence.

We overrule appellants’ no evidence point of error four. The evidence which we have previously referenced dictates that the jury had sufficient evidence to determine Nichols to be an employee or an independent contractor. This Court is not to judge the credibility of the witnesses nor the weight to be given their testimony.

In view of our reversal and remand under point of error two, we cautiously choose not to address the merits, if any, of appellants’ points of error three, five and six in that to do so may create an improper limitation upon the scope of trial on remand. Our caution emanates from the Texas Supreme Court reversal of this Court’s opinion in Otis Elevator Co. v. Bedre, 776 S.W.2d 152 (Tex.1989). We believe that Otis Elevator requires this Court to also remand the question as to whether Nichols was an employee or an independent contractor. TEX.R.APP.P. 81(b)(1) provides in part that:

… [I]f it appears to the court that the error affects a part only of the matter in controversy and that such part is clearly separable without unfairness to the parties, the judgment shall only be reversed and a new trial ordered as to that part affected by such error, …

Our Supreme Court makes clear that partial reversal and remand is improper unless the issues are severable. Otis, 776 S.W.2d at 153, citing Waples-Platter Co. v. Commercial Standard Ins. Co., 156 Tex. 234, 294 S.W.2d 375 (1956).

We do not believe that the question of whether Robert Nichols was an employee or an independent contractor can adequately or properly be severed from the question of whether Nichols was a “covered employee” under the Workers’ Compensation Act. We believe these questions to be so intertwined that a piecemeal remand on the question of “covered employee,” could result in unfairness to appellants upon retrial of their cause of action. It may well be argued that since the jury has determined Nichols to be an employee, a retrial on that issue would be an inappropriate disregard of the jury’s determination. We must, however, bear in mind that appellants’ cause of action is for personal injuries. Nichols’ status as an independent contractor, employee or covered employee are merely elements of appellants’ personal injury action. We believe these elements to be indivisible as to appellants’ overall cause of action for personal injury. See Waples, 294 S.W.2d at 377. Otis held, “the liability issues between the plaintiff and the defendant here-Otis’s liability and Bedre’s contributory negligence-are also indivisible.” Otis, 766 S.W.2d at 153.

*5 Regarding appellants’ points of error eight and nine, which contend that the trial court erred in allowing defendants to offer evidence of “Negative” net worth and disallowing plaintiffs the opportunity to introduce evidence to impeach same, we give no address since we have determined that remand is necessary and proper.

Point of error ten complains that the trial court erred in instructing a verdict on plaintiffs’ claims of invasion of privacy, trespass and intentional infliction of emotional anguish.

Appellants attempted recovery under these three specific torts focused upon alleged conduct of appellees during the pendency of this lawsuit. Appellants contend that the acts necessary to constitute elements of these particular torts were committed by agents of appellees.

Regarding appellants’ invasion of privacy claim it appears that the thrust is upon an invasion known as “intrusion upon seclusion.” Necessary elements of this cause of action include an intentional intrusion upon the seclusion, solitude or private affairs of another which is highly offensive to reasonable persons. See Texas Dept. of Mental Health v. Texas State Employees Union, 708 S.W.2d 498 (Tex.App.-Austin 1986), rev’d on other grounds, 746 S.W.2d 203 (Tex.1987).

It was incumbent upon appellants to introduce evidence that the named defendants intentionally caused the third party surveillance which violated plaintiffs’ privacy. See Parker v. Kangerga, 482 S.W.2d 43 (Tex.Civ.App.-Tyler 1972, writ ref’d n.r.e.)(liability for trespass is not dependent upon personal participation but may be shown by evidence defendant aided, assisted, advised, commanded or encouraged commission of the trespass); Fenley v. Ogletree, 277 S.W.2d 135 (Tex.Civ.App.-Beaumont 1955, writ ref’d n.r.e.).

Evidence introduced at trial by plaintiffs showed a scheme of surveillance of Nichols through the windows of plaintiffs’ home. Further evidence showed surveillance being made of plaintiffs from a graveyard as they were leaving church. Evidence was also offered to show that “the investigator” trespassed on land leased by plaintiffs. Robert Nichols testified that after the plaintiffs saw the surveillance being done by the hired agents of the defendants, plaintiffs’ family was afraid to go outside. The court acknowledged: “If they [the plaintiffs] have just a scintilla and I don’t submit it, the whole durn thing comes back….”

From the trial court’s statement it is readily apparent to this Court that the trial judge had serious concerns for not submitting the invasion of privacy issue to the jury. It appears to have been the trial court’s focus and concern as to whether the evidence submitted by plaintiffs amounted to what in legal terms is called a “scintilla.” Where the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, it is no more than a scintilla and, in legal effect, no evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983). Obviously, and on many occasions, it is a difficult call by a trial court in determining whether the evidence only amounts to a scintilla or whether such evidence exceeds the scintilla watermark. When a trial judge is faced with what we shall refer to as the scintilla dilemma, the trial judge must make an objective determination as to whether reasonable minds could differ under the evidence admitted.

*6 We hold that based upon the evidence, plaintiffs were entitled to the jury’s determination on an invasion of privacy question. We therefore sustain appellants’ point of error ten as to invasion of privacy, and in so doing we believe justice shall be better served in sustaining appellants’ point of error twelve also. Point of error twelve contends trial court error in refusing evidence regarding a conspiracy between the workers’ compensation carrier, the liability carrier and the defendants. Such excluded evidence may well have been probative to issues relating to appellants’ invasion of privacy, trespass, and intentional infliction of emotional anguish questions. Furthermore, we would be remiss in failing to recognize the possible probative effect such excluded evidence may have on a factfinder’s determination of Nichols’ status as that of an employee or an independent contractor.

Appellees premise that our Texas Supreme Court has never expressly recognized the tort of intentional infliction of emotional distress. Citing Diamond Shamrock Refining v. Mendez, 844 S.W.2d 198 (Tex.1992). We disagree. Intentional infliction of emotional distress is a viable tort action under Texas law, although difficult to prove. Twyman v. Twyman, 855 S.W.2d 619 (Tex.1993). The elements of such tort are as follows: (1) that defendant(s) acted intentionally or recklessly; (2) that the conduct was extreme and outrageous; (3) that the actions of the defendant(s) caused plaintiff emotional distress; (4) that the emotional distress was severe. Id. at 621. Appellees contend that appellants were required to show that the conduct of appellees amounted to “outrageous conduct.” Diamond Shamrock, 844 S.W.2d at 202. Liability under this cause of action may be premised upon conduct which is so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Twyman, 855 S.W.2d at 621. Appellees position that the facts and circumstances before us do not satisfy the requisite elements of the tort of intentional infliction of emotional distress. Our response to appellees’ position is that the trial court’s exclusion of evidence relating to conspiracy may well have been probative in proving the elements of intentional infliction of emotional distress upon appellants. Furthermore, given a proper and complete development of the facts, a jury might consider surveillance of plaintiffs from a graveyard as plaintiffs depart a worship service, to be “outrageous conduct.” Due to the exclusion of the evidence relating to conspiracy, we do not believe that appellants have had their full day in court. We further sustain appellants’ point of error ten as same relates to appellant’s action for intentional infliction of emotional distress, and hold that the trial court erred in instructing its verdict against plaintiffs on their claim for intentional infliction of emotional distress. With regard to appellants’ trespass cause of action we also reverse the trial court’s granting of its instructed verdict and remand this matter for trial on the merits.

*7 Appellees position that it was incumbent upon plaintiffs to show that defendants caused others to trespass on plaintiffs’ property. An investigator testified that he was hired by Raymond Matthews, attorney, to make video recordings of Robert Nichols. When evidence of conspiracy was excluded by the trial court, such ruling certainly affected plaintiffs ability to move forward with evidence which might show that the alleged trespasser/trespassers were acting for or in concert with appellees.

In sustaining appellants’ point of error ten, we reverse and remand the trial court’s granting of its instructed verdict for full trial on the merits of those causes of action relating to invasion of privacy, trespass, and intentional infliction of emotional distress.

Point of error number eleven states that the trial court erred in granting summary judgment for defendants on plaintiffs’ claims of Insurance Code violations, Deceptive Trade Practices Act violations, and breach of express and implied warranties.

By order dated March 22, 1991, the trial court granted summary judgment in favor of defendants regarding plaintiffs’ claims under Tex.Bus. & Com.Code Ann. § 17.46 (Vernon 1987), express and implied warranty, and Tex.Ins.Code Ann. art. 21.21 (Vernon Supp.1993).

Appellants contend that with respect to the Insurance Code violations, while Robert Nichols was incapacitated from the injuries received as a result of the explosion, defendants approached Patricia Nichols promising her that defendants’ could procure insurance coverage needed to protect Mrs. Nichols from the tragedy suffered by her husband. Appellants contend that at this point defendants became engaged in the business of providing insurance to the Nichols. Appellants contend that defendants’ conduct violated the duties under Insurance Code Article 21.21 through their fraud and misrepresentation in inducing Patricia Ann Nichols to endorse the forms alleged to provide her the proper insurance coverage to suit her needs during a time of crisis. Appellants contend that the result of such action by defendants constitutes engaging in the business of insurance as defined by Texas Law. Appellants went to trial on their Fourth Amended Petition, such being void of any proper pleadings regarding violation of Insurance Code Article 21.21, or breach of warranty. Furthermore, appellants’ only pleading relating to violations of the Deceptive Trade Practice Act involve the recovery of attorneys’ fees. Our quagmire is thus: The trial court granted summary judgment in favor of defendants under plaintiffs’ Second Amended Petition, which we can only surmise contained pleadings relating to Insurance Code, DTPA and breach of warranty violations. Plaintiffs’ Second Amended Petition is not contained in our appellate record. Therefore, our quagmire becomes appellants’ abyss as we now pour them out pursuant to Tex.R.App.P. 50(d). For failure to bring forth a sufficient record for review, point of error eleven is overruled.

*8 Point of error seven contends that the trial court erred in defining “Employee/Independent Contractor.” In view of remand we need not address this point.

In point of error thirteen appellants contend that the trial court erred in allowing defendants to introduce documents in evidence which were not timely produced in response to requests for production. In view of our remand of this case for trial on the merits, we shall assume that certain matters of discovery shall be pursued anew. Without ruling on point of error thirteen we make reference to Alvarado v. Farah Manufacturing Co., Inc., 830 S.W.2d 911 (Tex.1992); Clark v. Trailways, Inc., 774 S.W.2d 644 (Tex.1989), cert. denied, 493 U.S. 1074, 110 S.Ct. 1122, 107 L.Ed.2d 1028 (1990).

Appellants’ points of error fourteen, fifteen, sixteen, seventeen, and eighteen amount to an attack by appellants upon the evidence relating to the jury’s finding of negligence and comparative negligence against Robert Nichols. Point of error eighteen attacks the jury’s negative finding as to defendant Thornberry Oil Field Service to questions of gross negligence and intentional tort.

Since remand is ordered, for present appeal purposes we determine these points of error to be moot. In so doing we are cautiously aware that our failure to address appellants’ “no evidence” points fourteen and sixteen bears risk of remand if challenged. We believe, however, that since retrial on questions of negligence and comparative negligence is now required, any address would be redundant.

Appellants’ point of error nineteen which contends that the trial court erred in refusing to strike a juror for cause is also moot.

AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.