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Ammean v. Texas Indus. Contractors, Inc.
September 12, 1996
Unpublished Opinion

Ammean v. Texas Indus. Contractors, Inc.

Court of Appeals of Texas, Beaumont.

Richard J. AMMEAN, Appellant



No. 09-95-343cv.


Submitted on Sept. 12, 1996.


Oct. 3, 1996.


Rehearing Overruled Oct. 24, 1996.

On Appeal from the 128th District Court Orange County, Texas Trial Cause No. A940494-C

Before STOVER, JJ.



*1 This is an appeal from a summary judgment favoring appellee, Texas Industrial Contractors, Inc. We reverse and remand this action for a trial on the merits.

Appellant, Richard Ammean was injured while working on the premises of Bayer, Inc. formerly known as Miles, Inc., Polysar Division. Ammean was initially hired by Appellee and by way of a written contract between Miles, Inc. and Appellee, was working on the premises of Miles, Inc. when his injury occurred. Ammean was injured when a driver ran a forklift into a row of skids Appellant was standing on. Mr. Ammean sued Miles, Inc. and Appellee. Ammean alleged Miles, Inc. controlled the details of his work and that he was only a nominal employee of Appellee and that both Miles, Inc. and Appellee breached their duty to provide a safe place to work.

The trial court granted Appellee’s motion for summary judgment finding that Ammean was employed by Appellee and thus barred from suit by virtue of the Texas Workers’ Compensation Act. The court severed the cause of action against Appellee from the remaining claims in the suit, thus making the summary judgment appealable.

Appellant brings one point of error:

The trial court erred in granting a summary judgment as there is a question of fact as to whether Texas Industrial Contractors, Inc. was an employer or third party.

The Texas Supreme Court has held that courts must examine summary judgment evidence in the light most favorable to the non-movant. They must indulge every reasonable inference in favor of the non-movant and resolve all doubts in its favor. Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 549 (Tex.1985).

Appellee argues in its brief that pursuant to written agreement, Appellee was responsible for supervising and directing the work performed by Appellant. Appellee also argues that in addition to written contracts, numerous documents in Appellant’s personnel file establish that Appellant was hired, laid-off, paid and trained by Appellee.

In Exxon Corp. v. Perez, 842 S.W.2d 629 (Tex.1992), the Texas Supreme Court held:

A contract between two employers providing that one shall have the right of control over certain employees is a factor to be considered, but it is not controlling. (citations omitted)....Where the right of control prescribed or retained over an employee is a controverted issue, it is a proper function for the fact-finder to consider what the contract contemplated or whether it was even enforced.

Id. at 630.

Appellant attached a sworn statement to his response to Appellee’s motion for summary judgment wherein he alleged that Appellee did not supervise him nor did it control the details of his work:

I was supervised by employees and supervisors of Miles and was not supervised by Texas Industrial Contractors. Representatives of Miles had the right to control the details and manner of my work, and did, in fact, control the work.

*2 A fact issue thus exists as to whether Appellee relinquished control over Appellant’s work and therefore lost its workers’ compensation defense, despite the existence of a contract. A motion for summary judgment and its evidence must show there is no genuine issue as to a material fact and must show the movant is entitled to judgment as a matter of law. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991).

Because we find that a genuine issue of material fact exists via competent summary judgment evidence as to who controlled the details of Appellant’s work on the day of the accident, we reverse and remand.


End of Document