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De La Rosa v. Swift Transportation Co. of Arizona, LLC
February 25, 2022
Unpublished Opinion

De La Rosa v. Swift Transportation Co. of Arizona, LLC

MARIA ANTONIA DE LA ROSA, et al., Plaintiffs,



CIVIL ACTION NO. 7:19-CV-00100


Filed 02/25/2022


Randy Crane United States District Judge

I. Background

*1 Now before the Court are Defendant’s “Motion to Reconsider Partial Summary Judgment” (Dkt. No. 73) and Plaintiffs’ “Motion to Exclude Defendant’s Late-Produced Evidence” (Dkt. No. 69).1 In this Texas-law wrongful death and survival action filed in Hidalgo County state court, and removed here, Plaintiffs Maria Antonia De La Rosa, individually and as administrator of the estate of Arnold De La Rosa (deceased), among others,2 seek to hold Defendant Swift Transportation Co. of Arizona liable in negligence for damages arising from a single-vehicle accident that resulted in the death of the driver, Arnold De La Rosa (De La Rosa). (Dkt. Nos. 1, 9). Plaintiffs allege that the accident occurred on February 27, 2017, in Bushland, Cotton County, Texas, where De La Rosa “was operating a red truck tractor with a semi-trailer attached when he drove off the road, travelled down the embankment,” “struck the pillars supporting the west bound overpass bridge,” and died on impact. (Dkt. No. 9 at ¶¶ 3, 5). Plaintiffs identify De La Rosa as an “employee truck driver” of Defendant, who is alleged to have breached its duty of care to De La Rosa by—among other theories—allowing De La Rosa to drive in excess of permitted hours, and while suffering from a medical condition affecting his ability to drive. (Id. at ¶¶ 8, 17, 22, 30, 31, 40). Both sides sought partial summary judgment on the issue of De La Rosa’s employment status—Defendant asserted that De La Rosa was not its common-law employee or “statutory” employee under the Federal Motor Carrier Safety Regulations (FMCSR), and Plaintiffs countered that he was—and on September 16, 2021, the Court entered its order recognizing De La Rosa as Defendant’s employee as matter of Texas common law. (Dkt. Nos. 34, 35, 39). Applying the common-law test, the Court determined that Defendant’s Contractor Agreement (Contract) with De La Rosa, when construed together with the “Equipment Lease Agreement” (Lease) through which Defendant’s affiliate leased the truck to De La Rosa, evinced Defendant’s right to control De La Rosa’s work. See (id. at pp. 6-14). The Court had no need, therefore, to consult evidence that Defendant exercised actual control inconsistent with the contractual terms, but observed that competent summary judgment evidence extrinsic to the Contract and Lease was at least consistent with a finding of employment status. See (id. at pp. 7, 14). The Court granted both sides’ motions in part, insofar as they sought partial summary judgment on the issue of De La Rosa’s common-law employment status, and denied as moot those portions of the motions that sought summary judgment on the issue of De La Rosa’s employment status under the FMCSR. See (id. at p. 16).

*2 A little over four months later, Defendant moved to reconsider the partial summary judgment,3 and Plaintiffs moved to exclude Defendant’s alleged late-produced evidence relevant to the request for reconsideration: what Defendant characterizes as a summary of previously produced evidence purporting to show that De La Rosa exercised actual control over his own work because he rejected multiple loads. (Dkt. Nos. 69, 71, 73). In seeking reconsideration, Defendant argues that the Texas Labor Code, rather than the common law, determines the question of employment status that is relevant to this case—whether De La Rosa was an employee of Defendant, a non-subscriber to Texas workers’ compensation insurance, for the purpose of determining whether Defendant may assert the defenses of contributory negligence and assumption of risk in Plaintiffs’ action against it—and resolves this question in Defendant’s favor. (Dkt. No. 73 at pp. 2-10). In the alternative, Defendant relies on Waste Management of Texas, Inc. v. Stevenson, 622 S.W.3d 273 (Tex. 2021), to argue that the summary judgment record creates a fact question regarding Defendant’s actual control over De La Rosa’s work, or that the Court should reconsider its reliance on Doe v. Swift Transportation Co., Inc., 2017 WL 67521 (D. Ariz. Jan. 6, 2017), in determining the extent to which the Contract and Lease evince Defendant’s right to control. (Id. at pp. 11-18). Upon consideration of the Motion to Reconsider and Motion to Exclude and the parties’ responsive briefing,4 in light of the relevant law, the Court finds that the Texas Labor Code and precedent applying it counsel in favor of reconsidering the partial summary judgment even absent consideration of evidence extrinsic to the Contract and Lease, including the evidence to which Plaintiffs object. Therefore, the Court will grant the Motion to Reconsider and deny the Motion to Exclude as moot.

II. Analysis

A. Standard of Review for Motion to Reconsider

Where, as here, a party moves to reconsider an order that disposes of less than all claims, the Court analyzes the motion under Federal Rule of Civil Procedure 54(b), which states that such orders “may be revised at any time before the entry of a [final] judgment.” FED. R. CIV. P. 54(b); see Cabral v. Brennan, 853 F.3d 763, 766 (5th Cir. 2017) (partial summary judgment is interlocutory order subject to reconsideration under Rule 54(b)). Both sides proceed under the assumption that Rule 59(e), which governs motions to reconsider final judgments, provides the governing standard of review,5 but Rule 54(b) invokes its own, less stringent standard: “the trial court is free to reconsider and reverse its decision for any reason it deems sufficient, even in the absence of new evidence or an intervening change in or clarification of the substantive law.” Austin v. Kroger Texas, L.P., While the Court identified De La Rosa as an employee, relying on Texas common-law principles, Defendant clarifies that “the purpose of the parties’ cross-motions for summary judgment was to determine whether [Defendant] is entitled to raise contributory negligence and/or assumption of risk as a nonsubscriber to worker’s compensation insurance.” (Dkt. No. 73 at p. 1). No dispute exists that Defendant’s ability to raise these common-law defenses is controlled by the Texas Workers’ Compensation Act (TWCA), codified in the Texas Labor Code, Title V, subtitle A, and in particular, the following provision:

*3 (a) In an action against an employer by or on behalf of an employee who is not covered by workers’ compensation insurance obtained in the manner authorized by Section 406.003 to recover damages for personal injuries or death sustained by an employee in the course and scope of the employment, it is not a defense that:

(1) the employee was guilty of contributory negligence; [or]

(2) the employee assumed the risk of injury or death[.]

TEX. LAB. CODE § 406.033(a) (emphasis added). To summarize: if De La Rosa was Defendant’s employee, Defendant has no recourse to these defenses in the present action. If he was not, the defenses remain available.

In view of this, Defendant now asks the Court to eschew its common-law resolution of the employment question and “look to the Texas Labor Code to determine whether De La Rosa was [Defendant’s] ‘employee.’ ” (Dkt. No. 73 at p. 3). In taking the position that he was not, Defendant acknowledges the Code’s general definitions for “employer” and “employee,”6 but relies in principal part on certain other provisions in subtitle A that “specify whether particular persons are employers and employees in certain contexts.” See (id. at pp. 4-5). Apart from whether these provisions resolve the employment question in Defendant’s favor, the Court accepts the general premise—one Plaintiffs do not actively contest—that it must consult all relevant language in subtitle A to determine whether § 406.033(a) applies. See (id. at pp. 2-5); PlainsCapital Bank v. Martin, 459 S.W.3d 550, 556 (Tex. 2015) (“[W]hen a statute provides a definition for or uses a word or phrase in a particular manner, then courts must apply that definition or manner of use when interpreting the statute.”); Hayek v. W. Steel Co., 478 S.W.2d 786, 793 (Tex. 1972) (“When in the same Act the Legislature defines the meaning of a term, the courts should apply that meaning in interpreting subsequent sections of an act.”).

The relevant language, Defendant argues, appears mostly in § 406.121:

(2) “Independent contractor” means a person who contracts to perform work or provide a service for the benefit of another and who ordinarily:

(A) acts as the employer of any employee of the contractor by paying wages, directing activities, and performing other similar functions characteristic of an employer-employee relationship;

(B) is free to determine the manner in which the work or service is performed, including the hours of labor of or method of payment to any employee;

(C) is required to furnish or to have employees, if any, furnish necessary tools, supplies, or materials to perform the work or service; and

(D) possesses the skills required for the specific work or service.

(3) “Motor carrier” means a person who operates a motor vehicle over a public highway in this state to provide a transportation service or who contracts to provide that service.

(4) “Owner operator” means a person who provides transportation services under contract for a motor carrier. An owner operator is an independent contractor.

*4 ...

(6) “Transportation service” means providing a motor vehicle, with a driver under contract, to transport passengers or property.

(Dkt. No. 73 at pp. 4-5); TEX. LAB. CODE§ 406.121. The Code’s ensuing section contains the remaining provision on which Defendant relies:

(c) An owner operator and the owner operator’s employees are not employees of a motor carrier for the purposes of this subtitle if the owner operator has entered into a written agreement with the motor carrier that evidences a relationship in which the owner operator assumes the responsibilities of an employer for the performance of work.

(Dkt. No. 73 at p. 5); TEX. LAB. CODE § 406.122(c).

Defendant makes a series of arguments for why these provisions identify De La Rosa as an independent contractor rather than an employee. Defendant asserts, and Plaintiffs do not contest, that Defendant qualifies as a “motor carrier” under § 406.121(3)—that is, “a person7 who operates a motor vehicle over a public highway in [Texas] to provide a transportation service or who contracts to provide that service”—because the Contract states that Defendant is a “motor carrier, engaged in the interstate transportation of freight,” and that De La Rosa’s truck would be “operated by [Defendant] under [the Contract].” (Dkt. No. 73 at p. 7; Dkt. No. 34, Exh. A at p. 5-Contract Recitals, p. 14-Schedule A).8 Plaintiffs also do not contest that § 406.121(4) identifies De La Rosa as an “owner operator” (i.e., one who provides a “transportation service,” defined in subsection (6) as “a motor vehicle, with a driver under contract, to transport passengers or property”) because the Contract obligated De La Rosa to provide the equipment and labor “necessary for the transportation of the freight furnished by [Defendant] to [De La Rosa] from time to time.” (Dkt. No. 73 at p. 7; Dkt. No. 34, Exh. A at p. 5 ¶ 1). Since § 406.121(4), upon supplying the definition of owner operator, goes on to state that “[a]n owner operator is an independent contractor,” Defendant submits that “owner operators, like [De La Rosa], are independent contractors.” (Dkt. No. 73 at p. 7).9 However, Plaintiffs offer a decisive reason for declining to construe § 406.121(4) as a per se rule that applies throughout subtitle A: § 406.122(c), also cited by Defendant. See (Dkt. No. 78 at p. 4 n.2). Again, that provision states that an owner operator is not an employee of a motor carrier for the purposes of subtitle A “if the owner operator has entered into a written agreement with the motor carrier that evidences a relationship in which the owner operator assumes the responsibilities of an employer for the performance of work.” If an owner operator could never qualify as an employee for workers’ compensation purposes, by virtue of § 406.121(4)’s designation of an owner operator as an independent contractor, there would be no need for an additional provision setting forth the conditions under which an owner operator is not an employee. See (id.). Any perceived conflict between the two provisions is mitigated by construing § 406.121(4) to support the reading of subsection (1), which is concerned with defining “general contractor” to exclude “a motor carrier that provides transportation service through the use of an owner operator” for purposes of chapter 406, subchapter F, and in particular, § 406.123. See TEX. LAB. CODE § 406.121 (prefacing that section applies “[i]n this subchapter”)10; Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433 (Tex. 2009) (addressing connection between § 406.121(4)’s exclusion and § 406.123).11 In contrast, § 406.122(c) addresses an owner operator’s status as an employee “[f]or purposes of workers’ compensation coverage” under subtitle A as a whole, and therefore for the purpose of determining Defendant’s ability to raise the defenses of § 406.033(a), which appears in chapter 406, subchapter B. See TEX. LAB. CODE§§ 406.033(a), 406.122(a), (c). In adopting this reading, the Court respects “the starting point” for interpreting the Code under Texas rules of construction—the statute’s “plain language”—as well as the directive to consider the statute as a whole and give effect to both provisions when possible. Wright v. Ford Motor Co., 508 F.3d 263, 269 (5th Cir. 2007) (federal court interpreting Texas statute follows same rules of construction that Texas court would apply, beginning with analysis of statute’s plain language, which is presumed indicative of legislative intent); TIC Energy & Chem., Inc. v. Martin, 498 S.W.3d 68, 74-75 (Tex. 2016) (in order to ascertain and give effect to legislative intent as expressed in statute’s language, court must “consider the statute as a whole, giving effect to each provision so that none is rendered meaningless or mere surplusage”); TEX. GOV’T CODE § 311.026 (if statutory provisions conflict, they “shall be construed, if possible, so that effect is given to both”). To the extent that § 406.121(4) identifies an owner operator as an independent contractor, it does not determine Defendant’s ability to assert the defenses of § 406.033(a).

*5 Defendant also appeals to the provision that defeats its reliance on § 406.121(4), arguing that De La Rosa, as an owner operator, was not an employee within the meaning of § 406.122(c) (and therefore § 406.033(a)), because he entered into a written agreement with Defendant in which he “assumed the responsibilities of an employer for the performance of work.” (Dkt. No. 73 at pp. 5-8). According to Defendant, the Fifth Circuit’s decision in 571 F.3d 475 (5th Cir. 2009), instructs that the Contract alone determines this question, which must be answered in the affirmative. See (id.). According to Plaintiffs, Simpson offers room for the Court to equate the assumption of employer responsibilities with the “right to control,” the common-law test that the Court previously resolved in De La Rosa’s favor, finding that this right belonged to Defendant, not De La Rosa, upon consideration of both the Contract and the Lease. See (Dkt. No. 78 at pp. 4-5; Dkt. No. 39 at pp. 13-14).

In Simpson, the motor carrier defendant hired owner operator Rodgers Trucking to transport goods, and Rodgers Trucking supplied the tractor-trailer and two drivers, Rodgers and Simpson, pursuant to a lease agreement with the carrier that stated, “Neither Contractor, nor its employees, are to [be] considered employees of Carrier at any time under the circumstances or for any purpose.” Simpson, 571 F.3d at 476. After Simpson was seriously injured in the tractor-trailer while Rodgers was driving, Simpson brought suit on various theories against the carrier, who prevailed at trial when the jury found Rodgers 100 percent liable. Id. On appeal, Simpson argued that his status as a statutory employee under the FMCSR established an employer-employee relationship for purposes of § 406.033(a), foreclosing the non-subscriber carrier’s ability to assert the defense of contributory negligence. Id. The Fifth Circuit disagreed, first because a form executed by the carrier and Rodgers Trucking stated the contracting parties’ agreement that “the owner/operator assumes the responsibilities of an employer for the performance of work,” such that § 406.122(c) precluded the owner operator’s employee, Simpson, from asserting that the carrier was his employer for workers’ compensation purposes. Id. The Court also held that federal law did not preempt Texas workers’ compensation law on this issue, finding no conflict between § 406.122(c) on one hand, and the FMCSR and the statutes from which they arose on the other. Id. at 476-77. Since “the lease language, construed in conjunction with the [governing] statutes and regulations,” did not confer employee status on Simpson, and since he “conceded that he [had] no claim to employee status from the facts of his working relationship,” the Court held that Simpson had “failed to establish that he enjoyed the status of an employee[.]” Id. at 477-78.

Simpson directs that the “assumption of employer responsibilities” test of § 406.122(c) governs Defendant’s ability to raise the defenses of § 406.033(a),12 but the decision does not go so far as to require resolution of that test on the basis of the Contract alone, to the exclusion of the Lease. The Fifth Circuit’s analysis began and ended with the form executed by the motor carrier and owner operator because the form’s language parroted § 406.122(c), and was uncontradicted. Here, no such language exists in either the Contract or the Lease, both of which the Court has effectively interpreted as written agreements with Defendant that must be consulted to determine whether the contracting parties’ relationship, as a whole, evinces De La Rosa’s assumption of the responsibilities of an employer.13

*6 In making this determination without the benefit of the uncontradicted form language at issue in Simpson, the Court must address what constitutes the responsibilities of an employer within the meaning of § 406.122(c). As defined in relevant part by § 401.011(18), applicable to all of subtitle A, “employer” means “a person who makes a contract of hire, employs one or more employees, and has workers’ compensation insurance coverage.” In support of the argument that De La Rosa assumed these responsibilities, Defendant directs the Court to those portions of the Contract in which De La Rosa agreed that he “may, from time to time, employ, at [his] own expense, third parties such as drivers, driver helpers, and laborers,” that he would be “solely responsible for the payment of [his] employees’ wages and expenses as well as for the payment of all payroll taxes for such employees,” and “for the direction and control of [his] employees,” and that he would determine “the method, means, and manner of performing work and services” under the Contract. (Dkt. No. 73 at pp. 8-9; Dkt. No. 34, Exh. A at p. 7 ¶ 7(A), p. 8 ¶ 7(E), p. 11 ¶ 17). Defendant also points to a form within the contractual documents, the “Occupational Accident Enrollment Form” wherein De La Rosa requested insurance coverage as an owner operator, which advised De La Rosa that he would “not become a subscriber to the workers’ compensation system by purchasing the policy,” and that as a non-subscriber, he would be responsible for complying with workers’ compensation law. (Dkt. No. 73 at p. 8; Dkt. No. 34, Exh. A at p. 39). Standing alone, these documents reflect that De La Rosa contractually assumed the responsibilities to hire employees and, if not to have workers’ compensation insurance, to comply with the legal requirements placed on non-subscribing employers. As the Court has observed, the Lease placed restrictions on the exercise of certain of these responsibilities, allowing De La Rosa to hire a substitute driver only if he became “ill, disabled, or otherwise unable to drive” the truck leased from Defendant’s affiliate, and then only upon written notice and the affiliate’s approval. (Dkt. No. 39 at p. 11; Dkt. No. 34, Exh. A at p. 46 ¶ 6(a)). Plaintiffs maintain a strong argument that aspects of employee hiring thus fell within Defendant’s right of control, but their reliance on the common law must give way to the plain language of the statute. Defendant—at least through its affiliate—may well have controlled when De La Rosa could hire employees, and whom he could hire, but De La Rosa remained responsible for the hiring and payment of substitute drivers once approved, and for complying with workers’ compensation law as it applies to employers. That De La Rosa retained employer responsibilities is, in fact, reflected in the very same Lease provision that placed restrictions on his right to control when and whom to hire, in that it also provided that a substitute driver, if approved, would be “under [the lessee’s] control and direction[.]” (Dkt. No. 34, Exh. A at p. 46 ¶ 6(a)). Considered as a whole, the written contractual documents reflect that De La Rosa, as an owner operator, was not Defendant’s employee within the meaning of § 406.122(c), and therefore § 406.033(a).

The Court has no need, therefore, to consider Defendant’s alternate argument that the Texas Supreme Court’s recent decision in Waste Management, supra,14 at the very least creates a fact issue with respect to De La Rosa’s employment status. See (Dkt. No. 73 at pp. 11-16). Waste Management addressed the Texas Labor Code provision rendering workers’ compensation benefits the exclusive remedy of a covered employee, see TEX. LAB. CODE § 408.001(a), and the application of that provision in “dual-employment” cases involving plaintiff workers provided by employment agencies to client defendants. In particular, the Texas Supreme Court examined the extent to which contracts labeling plaintiff workers as independent contractors controlled whether the plaintiffs could bypass the exclusive remedy provision and sue client defendants for negligence, and ultimately adopted an approach that “looked instead to the factual question of who exercised the right to control as a practical matter in the course of the parties’ daily work,” which the Court found consistent with its dual-employment case precedent and with the Code’s general definition of “employee” as including “workers operating under a written contract, so long as they are ‘in the service of’ the employer.” Waste Mgmt., 622 S.W.3d at 279 (quoting TEX. LAB. CODE § 401.012(a)). In the context of this case—and as the Texas Supreme Court has observed, context matters—the Texas Labor Code’s general employee definition does not control whether De La Rosa, an owner operator, is prevented under § 406.122(c) from claiming employee status for the purpose of determining Defendant’s ability to the defenses of § 406.033(a), and the Court has no occasion to disregard an independent contractor label and look to extrinsic evidence, since § 406.122(c) expressly renders De La Rosa’s employee status contingent upon what the written agreements provide. See TIC Energy, 498 S.W.3d at 77 (recognizing that TWCA “defines the terms ‘employee’ and ‘employer’ in different ways depending on the context”). Waste Management is not controlling, although in view of the outcome of the Court’s analysis, it offers an observation that extends to this case: here, as in the dual-employment context, “construing the [TWCA’s] definitions is not always the same enterprise as determining employment under the common law.” Waste Mgmt., 622 S.W.3d at 282. Regardless of whether Defendant had the contractual right to control De La Rosa’s work to the degree sufficient to render him an employee under Texas common law, or whether Defendant actually exercised that right, De La Rosa’s contractual assumption of employer responsibilities precludes him from claiming that he is an employee within the meaning of § 406.122(c), and therefore § 406.033(a).

Accordingly, the Court need not reexamine its common-law analysis relying on Doe, supra, nor its assessment of the extrinsic evidence submitted in support of Plaintiffs’ partial summary judgment motion, nor must it determine whether to exclude Defendant’s alleged late-produced evidence of De La Rosa’s actual control over his work. See (Dkt. No. 73 at pp. 15-18). The Texas Labor Code’s “assumption of employer responsibilities” test and the contractual documents control, and secure Defendant’s ability to raise the defenses of contributory negligence and assumption of risk in Plaintiffs’ action against it.

C. Defendant’s Federal Statutory Argument

*7 Defendant argued when seeking partial summary judgment, and notes again now, that even if De La Rosa cannot be deemed an employee under Texas law, he qualified as a “statutory” employee under the FMCSR. See (Dkt. No. 78 at p. 3 n.1). As observed supra, the Fifth Circuit’s decision in Simpson expressly determined that the FMCSR did not preempt the very question answered here: whether an owner operator qualifies as an employee under Texas Labor Code § 406.122(c), and therefore § 406.033(a). Although the Court previously declined to reach the question of De La Rosa’s status as a federal statutory employee, it now concludes that De La Rosa cannot claim this status as a bar to the defenses of § 406.033(a).

III. Conclusion

For the foregoing reasons, the hereby ORDERS that Defendant’s Motion to Reconsider Partial Summary Judgment (Dkt. No. 73) is GRANTED, as follows: Defendant’s Motion for Partial Summary Judgment (Dkt. No. 34) is GRANTED, insofar as it seeks to establish its ability to raise the defenses of Texas Labor Code § 406.033(a); and Plaintiffs’ Motion for Partial Summary Judgment is DENIED to the extent that it seeks to bar Defendant’s assertion of these defenses.

The Court further ORDERS that Plaintiffs’ Motion to Exclude (Dkt. No. 71) is DENIED as moot.

SO ORDERED February 25, 2022, at McAllen, Texas.



Also pending are Defendant’s motion to bifurcate the trial, on which the Court has deferred ruling in full, and both sides’ motions in limine and Defendant’s motion to exclude Plaintiffs’ expert, Mark Respass, which motions the Court will address separately. See (Dkt. Nos. 55, 62-64).


Additional Plaintiffs are Abigail Moncivais, Shania De La Rosa, Arnold De La Rosa, Jr., Consuelo De La Rosa, and Alberto De La Rosa, Sr.


Defendant moved for leave to file the Motion to Reconsider, and the Court granted leave in the interest of considering the asserted grounds for reconsideration on the merits. See (Dkt. Nos. 71, 72).


(Dkt. Nos. 76, 78).


See (Dkt. No. 71 at ¶ 14; Dkt. No. 78 at pp. 1-2). Both sides also cite to Vlasek v. Wal-Mart Stores, Inc., at *1 (S.D. Tex. Jan. 16, 2008), for the district court’s observation that “[m]otions to reconsider interlocutory orders are left to the court’s discretion so long as not filed unreasonably late,” in apparent contrast to Rule 54(b)’s language and standard of review. See (Dkt. No. 71 at ¶ 14; Dkt. No. 78 at p. 2). Even assuming that the Court’s ability to reconsider its prior order hinges on the timeliness standard supplied by Vlasek, the Court finds that Defendant did not act unreasonably late in seeking leave to file the Motion to Reconsider within two weeks of a trial that, for other reasons, has since been rescheduled. See (Dkt. Nos. 39, 71; 01/03/2022 Minute Entry; Dkt. No. 81).


The Code defines “employer,” in relevant part and “unless otherwise specified,” as “a person who makes a contract of hire, employs one or more employees, and has workers’ compensation coverage,” and “employee” is defined as “each person in the service of another under a contract of hire, whether express or implied, or oral or written.” TEX. LAB. CODE §§ 401.011(18), 401.012(a).


The Texas Labor Code no longer defines the term “person,” necessitating resort to the Texas Government Code, which defines the term to “include[ ] corporation, organization, government or governmental subdivision or agency, business trust, estate, trust, partnership, association, and any other legal entity.” TEX. GOV’T CODE § 311.005(2). Defendant falls within this definition.


The contractual documents were submitted by both sides in support of their motions for partial summary judgment, and have again been attached to the Motion to Reconsider. See (Dkt. No. 34, Exh. A; Dkt. No. 35, Exh. 2; Dkt. No. 73, Exh. 1). For ease of reference, the Court will herein cite only to the exhibit initially provided by Defendant, and to the electronically assigned page numbers within that exhibit.


Defendant briefly likens this provision to a Colorado statutory exclusion analyzed in Scott v. Matlack, Inc., 1 P.3d 185, 188-90 (Colo. App. 1999), rev’d on other grounds, 39 P.3d 1160 (Colo. 2002). (Dkt. No. 73 at p. 7). The Colorado provision, however, expressly excludes drivers who lease vehicles from common carriers or contract carriers, pursuant to a lease that otherwise complies with various statutory requirements, from the definition of “employee,” whereas subtitle A of the Texas Labor Code does not. See COL. REV. STAT. § 8-40-301(5).


The definition of “independent contractor” to which Defendant further appeals, as set forth in § 406.121(2), also applies in subchapter F only. See (Dkt. No. 73 at pp. 9-10). Ultimately, since § 406.122(c) determines De La Rosa’s status as an employee, the Court need not resolve whether De La Rosa qualified as an independent contractor under § 406.121(2). See infra n. 12.


Section 406.121(1) states in full:

“General contractor” means a person who undertakes to procure the performance of work or a service, either separately or through the use of subcontractors. The term includes a “principal contractor,” “original contractor,” “prime contractor,” or other analogous term. The term does not include a motor carrier that provides a transportation service through the use of an owner operator.

TEX. LAB. CODE § 406.121(1). Under § 406.123, a general contractor’s written agreement to provide workers’ compensation coverage to a subcontractor and employees of the subcontractor makes the general contractor the statutory employer of the subcontractor and the subcontractor’s employees for purposes of § 408.001(a), rendering workers’ compensation benefits the employees’ exclusive remedy. See TEX. LAB. CODE §§ 406.123(a), (e), 408.001(a); Entergy Gulf States, 282 S.W.3d at 436. A motor carrier may enter into the same agreement, but § 406.123 does not similarly confer statutory employer status upon it. See TEX. LAB. CODE § 406.123(c); Entergy Gulf States, 282 S.W.3d at 487 (O’NEILL, J., dissenting).


This is consistent with § 406.122 as a whole, subsection (a) of which provides, in relevant part, that “[f]or purposes of workers’ compensation insurance coverage, a person who performs work or provides a service for a...motor carrier who is an employer until this subtitle is an employee of that...motor carrier, unless the person is...operating as an independent contractor.” TEX. LAB. CODE § 406.122(a)(1). If an owner operator qualifies as an independent contractor (defined in § 406.121(2)), this ends this inquiry, but if he qualifies as an employee under § 406.122(a), he cannot claim employee status for workers’ compensation purposes if the conditions of subsection (c) are met. See TEX. LAB. CODE § 406.122(c). Since the Court finds that they are, it need not determine whether De La Rosa is an employee or an independent contractor within the meaning of subsection (a).


Notably, Defendant has not argued that the Lease with its affiliate cannot be attributed to Defendant.


The decision post-dates Defendant’s motion for partial summary judgment, although not the Court’s ruling on the same.

End of Document