Court of Appeals of Texas, Corpus Christi-Edinburg.
David BARRETT, Appellant,
BERRY CONTRACTING, L.P., Elite Piping & Civil, Ltd., and Govind Development, LLC., Appellees.
Delivered and filed October 3, 2019
On appeal from the County Court at Law No. 1 of Nueces County, Texas, Robert J. Vargas, County Judge
Attorneys & Firms
Thomas C. Hall, Thomas C. Hall, PC, San Antonio, TX, for Appellant.
Brian C. Miller, Royston Rayzor Vickery & Williams L.L.P., Corpus Christi, TX, for Appellees.
Before Chief Justice Longoria
Memorandum Opinion by Justice Longoria
*1 After sustaining injuries while working at a refinery, appellant David Barrett sued appellees Berry Contracting, LP (Berry), Elite Piping & Civil, Ltd. (Elite), and Govind Development, LLC (Govind). The trial court granted Berry’s and Elite’s separate motions for summary judgment. The trial court also granted Govind’s motion to dismiss Barrett’s claims against it. By two issues, Barrett asserts that the trial court erred by (1) granting summary judgment in favor of Berry and Elite, and (2) granting Govind’s motion to dismiss. We affirm.
The underlying facts are undisputed. Barrett was an employee of Valero. On January 5, 2016, while he was working on Valero’s premises, the ground collapsed, causing him to sink three to four feet into “superheated soil.” Barrett sustained severe burn injuries to both of his legs.
On July 6, 2016, Barrett filed suit against BHP Engineering & Contracting, L.P. (BHP) and Berry. Barrett did not include an engineer’s certificate of merit with the petition. See TEX. CIV. PRAC. & REM. CODE ANN. § 150.002 (listing the requirements for certificates of merit and when they must be filed).
On August 23, 2016, Barrett filed an amended petition, which omitted BHP as a defendant but added Govind in its place. Again, Barrett filed no certificate of merit. See id. On February 1, 2017, Barrett filed a second amended petition, this time omitting Govind and leaving Berry as the only named defendant.
On December 27, 2017, Barrett filed his third amended petition, which reasserted his claims against Govind and added Elite as a new defendant. Even though Barrett did not include a certificate of merit, he acknowledged the applicable statute and referenced id. § 150.002(c). On January 28, 2018, Barrett filed an affidavit from Wesley Goodwin, a professional engineer, and offered it as his certificate of merit.
On March 27, 2018, Elite filed a motion for summary judgment. According to Elite, it was a subcontractor of Valero, the general contractor. Elite asserted that Valero provided Elite and Barrett with workers’ compensation insurance. Thus, as a subcontractor and deemed employee of Valero, Elite argued that it was “entitled to the exclusive remedy defense against the claims of Barrett.” See TEX. LAB. CODE ANN. § 408.001(a) (explaining the exclusive remedy defense available to subcontractors in certain scenarios). On May 1, 2018, the trial court granted Elite’s motion for summary judgment.
On June 4, 2018, Govind filed a motion to dismiss Barrett’s claims against it. Govind asserted that Barrett violated the statute by failing to file a certificate of merit with the first petition that named Govind as a defendant. See TEX. CIV. PRAC. & REM. CODE ANN. § 150.002. Govind alternatively claimed that the statute required dismissal because the affidavit by Goodwin was untimely and defective. See id. Barrett filed a response to Govind’s motion, arguing that “it was not possible to obtain a Certificate of Merit before the running of the statute of limitations.”
*2 On June 15, 2018, Berry filed a motion for summary judgment that was almost identical to Elite’s motion for summary judgment. Berry argued that it was a deemed employee of Valero because Berry had a written contract with Valero to provide Berry with workers’ compensation insurance. Therefore, similar to Elite, Berry asserted that it was entitled to the exclusive remedy defense. See TEX. LAB. CODE ANN. § 406.123(e). On August 15, 2018, the trial court held a hearing and granted Berry’s motion for summary judgment.
On September 11, 2018, the trial court granted Govind’s motion to dismiss. On October 11, 2018, the trial court signed an amended order, specifying that Barrett’s claims against Govind were dismissed without prejudice. This appeal ensued.
II. “PROVIDE” COVERAGE
In his first issue, Barrett argues that the trial court erred by granting summary judgment in favor of Berry and Elite because the contracts do not meet the requirements of id. § 406.123(a).
A. Standard of Review and Applicable Law
We review a traditional summary judgment de novo. See Lujan v. Navistar Fin. Corp., 433 S.W.3d 699, 704 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (“When a defendant moves for traditional summary judgment, he must either: (1) disprove at least one essential element of the plaintiff’s cause of action; or (2) plead and conclusively establish each essential element of his affirmative defense, thereby defeating the plaintiff’s cause of action.”).
In the context of summary judgments, “[i]ssues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.” TEX. R. APP. P. 33.1.
The “[r]ecovery of workers’ compensation benefits is the exclusive remedy of an employee covered by workers’ compensation insurance coverage ... against the employer or an agent or employee of the employer for ... a work-related injury sustained by the employee.” TEX. LAB. CODE ANN. § 406.123(a) (emphasis added).
*3 “[T]o seek the exclusive remedy defense, Becon Const. Co. v. Alonso, 444 S.W.3d 824, 834 (Tex. App.—Beaumont 2014, pet. denied).
Barrett argues on appeal that the written contracts between Valero and Elite and Berry did not obligate Valero to continue to provide coverage if the rolling owner controlled insurance program (ROCIP) was discontinued after the work began. Thus, Barrett claims that Valero did not “provide” workers’ compensation insurance coverage to Elite and Berry, which means Berry and Elite were not entitled to the exclusive remedy defense. See TEX. LAB. CODE ANN. § 406.123(a). However, this does not correspond with the arguments raised by Barrett in response to Elite’s and Berry’s motions for summary judgment at the trial court level.
In response to Berry’s motion for summary judgment, Barrett argued that, based on the terms of the written contract, Berry was an independent contractor as opposed to a deemed employee, meaning Berry was not entitled to the protection of the exclusive remedy defense. Because Barrett’s argument that Valero did not “provide” Berry coverage has been made for the first time on appeal, this issue is waived. See Wells Fargo Bank, 458 S.W.3d at 916.
Likewise, in response to Elite’s motion for summary judgment, Barrett raised four arguments: (1) Elite did not establish that the written contract to provide coverage was in force and effect at the time the incident occurred; (2) Elite did not establish that the written contract covered the specific time and location of the injury; (3) there was a genuine issue of material fact as to whether Valero qualified as a general contractor; and (4) the written contract described Elite as an independent contractor, which precluded Elite from claiming deemed employee status. Barrett addresses none of these issues on appeal and instead argues that Valero did not “provide” coverage to Elite because “the contracts provide that in the event that Valero does not elect to furnish workers’ compensation insurance, that Berry and Elite agree to furnish the insurance at their expense, as opposed to Valero’s.” Because Barrett’s appellate issue was not properly raised in the summary judgment proceedings at the trial court level, this issue is waived. See Wells Fargo Bank, 458 S.W.3d at 916.
Even assuming that Barrett properly preserved this appellate issue, we have recently held that to “provide” in the context of the Texas Workers’ Compensation Act means “to supply or make available.” Becon, 444 S.W.3d at 834. Therefore, the trial court did not err in granting summary judgment in favor of Elite and Berry. We overrule Barret’s first issue.
III. CERTIFICATE OF MERIT
*4 In his second issue, Barrett argues that the trial court erred in granting Govind’s motion to dismiss.
A. Standard of Review and Applicable Law
“We review a trial court’s ruling on a motion to dismiss a case for failure to comply with Barron, Stark & Swift Consulting Eng’rs, LP v. First Baptist Church, Vidor, 551 S.W.3d 320, 322 (Tex. App.—Beaumont 2018, no pet.). An abuse of discretion occurs when the trial court acts arbitrarily or unreasonably, without reference to guiding rules and principles. See id.
In claims against certain licensed or registered professionals, such as a licensed professional engineer and the firm she or he represents, the plaintiff is generally supposed to file a certificate of merit “with the complaint” against said defendant. See Sharp Eng’g v. Luis, 321 S.W.3d 748, 752 (Tex. App.—Houston [14th Dist.] 2010, no pet.).
The contemporaneous filing requirement has an exception that is only available if the plaintiff “both files within ten days of the end of the limitations period and alleges that the late filing prevented the preparation of a certificate of merit.” Crosstex, 430 S.W.3d at 395.
Barrett’s first amended petition was the first petition to name Govind as a defendant. This petition was filed about sixteen months before the end of the limitations period, meaning Barrett was still subject to the contemporaneous filing requirement. See TEX. CIV. PRAC. & REM. CODE ANN. § 150.002(e).
*5 Therefore, the trial court did not abuse its discretion in granting Govind’s motion to dismiss. We overrule Barrett’s second issue.
We affirm the judgment of the trial court.