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Burdick v. Shell Oil Co.
November 22, 1995
Unpublished Opinion

Burdick v. Shell Oil Co.

Court of Appeals of Texas, Houston (14th Dist.).

Virginia BURDICK, Appellant


SHELL OIL CO., Robert Brian Parish and Roger Vanderwood, Appellees

No. 14-94-01087-CV.


Nov. 22, 1995.

On Appeal from the 215th District Court Harris County, Texas Trial Court Cause No. 93-18425.


MURPHY, Chief Justice.

*1 This is an appeal from a take-nothing summary judgment granted in favor of Shell Oil Company (“Shell”), Robert Parish and Roger Vanderwood, appellees, and against Virginia Burdick, appellant, based on Shell’s statutory immunity under the Texas Workers’ Compensation Act.1 In appellant’s sole point of error, she argues the trial court improperly granted summary judgment because: (1) Shell’s contract with Peakload Personnel Services (“Peakload”) conclusively established that Peakload had the right to control the details of appellant’s work; (2) fact issues exist as to whether appellant was a borrowed servant based on surrounding facts and circumstances; (3) Shell is estopped to assert appellant was a borrowed servant; and (4) the trial court failed to adjudicate all of appellant’s claims. We reverse and remand.

Appellant worked for Peakload Personnel Services, Inc. (“Peakload”), an employment services company, who assigned her to Shell as a cashier at one of its Houston gasoline service stations. In 1991, two individuals robbed appellant’s station and in the process, seriously injured her. Appellant received workers’ compensation benefits from Peakload. She subsequently filed suit against Shell, alleging that: (1) Shell’s negligent operation and control of the premises caused her injuries; and (2) Roger Vanderwood and Robert Parish, Shell employees, intentionally or negligently made misrepresentations concerning the station’s security. In their motion for summary judgment, appellees contended appellant was a borrowed servant and the compensation benefits appellant had already received discharged them from liability under the Texas Workers’ Compensation Act. See, e.g., Sparger v. Worley Hosp., Inc., 547 S.W.2d 582, 583 (Tex.1977) (recognizing that the “borrowed servant” doctrine protects the employer having the right of control over the details of an employee’s work). Appellees’ motion, however, failed to address appellant’s negligent or intentional misrepresentation claims. The trial court granted appellees’ motion for summary judgment and entered a final judgment purporting to dispose of all of appellant’s claims.

On appeal from a summary judgment, this Court must determine whether the proof establishes, as a matter of law, that no genuine issue of material fact exists. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 679 (Tex.1979).

In her first and second arguments, appellant contends the contract between Shell and Peakload conclusively establishes Peakload’s right to control, or in the alternative, fact issues exist as to Shell’s right to control the details of appellant’s work. Texas courts recognize that the general employee of one employer may become the borrowed servant of another employer. Carr v. Carroll Co., 646 S.W.2d 561, 563 (Tex.App.-Dallas 1982, writ ref’d n.r.e.) (emphasis added)).

*2 However, a contract between two employers providing that one shall have the right to control over certain employees is a factor to be considered, but it is not controlling. Perez, 842 S.W.2d at 630. In the present case, the contract states in pertinent part:

It is understood and agreed that [Peakload] is an independent contractor, and nothing herein contained shall be construed as creating a relationship of employer and employee between [Shell] and [Appellant] ; nor shall anything herein contained be construed to constitute [Peakload] and [Shell] as partners, joint employers or single employers or as having any relationship other than as provided herein (emphasis added).

Texas law defines an “employer-employee relationship” as one in which the alleged employer has the right to control the details of the work performed. See Thompson v. Travelers Indem. Co., 789 S.W.2d 277, 278 (Tex.1990).

In the present case, the parties stated in their contract that no employeremployee relationship existed between Shell and appellant, rather than expressly using the words “right to control.” We find this language fails to delegate conclusively the right of control to either Shell or Peakload. Instead, the contract’s language, at least, raises a fact issue as to what the parties contemplated. Further, the contract provides that both Peakload and Shell had the power to terminate appellant’s employment. When two employers possess the power to terminate, a fact issue exists as to the right of control. See Christian v. Texas Employers Ins. Ass’n, 679 S.W.2d 679, 682 (Tex.App.-Dallas 1984, writ ref’d n.r.e.).

Additionally, the facts and circumstances of this case present fact issues as to the right of control. See Aguilar v. Wenglar Const. Co. Inc., 871 S.W.2d 829, 832 (Tex.App.-Corpus Christi 1994, no writ) (finding special employer had right to control because special employer’s foreman directly supervised employee’s conduct). Instead, appellant relied on the training and instructions provided by both Peakload and Shell to conduct her daily activities. Her reliance on both parties demonstrates a fact issue exists as to the right of control. Therefore, upon thorough review of the record, we find genuine issues of material fact exist whether: (1) the contract between Peakload and Shell delegated the right to control; and (2) Shell possessed the right of control based on surrounding facts and circumstances. We sustain appellant’s sole point of error. Accordingly, we decline to address the substance of appellant’s third and fourth arguments.

*3 The judgment of the court below is reversed and remanded for a trial on the merits.



417.004 (Vernon Pamph.1995)).

End of Document