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

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

v.

SWIFT TRANSPORTATION CO. OF ARIZONA, LLC, Defendant.

CIVIL ACTION NO. 7:19-CV-00100

|

Filed 02/25/2022

ORDER GRANTING DEFENDANT’S MOTION TO RECONSIDER PARTIAL SUMMARY JUDGMENT AND DENYING AS MOOT PLAINTIFFS’ MOTION TO EXCLUDE DEFENDANT’S LATE-PRODUCED EVIDENCE

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 (5^th 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 (5^th 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 (5^th 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).