Supreme Court of Texas.
EXXON CORPORATION, Petitioner,
Oscar PEREZ, Respondent.
Sept. 9, 1992.
Attorneys & Firms
*629 William A. Snapp, Houston, for petitioner.
Baldemar Gutierrez, Alice, for respondent.
The Motion for Rehearing of Oscar Perez is overruled and the following is substituted as the court’s opinion.
We revisit the former Workers’ Compensation Act (the Act) to consider whether the trial court erred by refusing to include within the charge a question and accompanying definition on Oscar Perez’s status as Exxon’s borrowed servant. The court of appeals found no error and affirmed the trial court. We disagree.
*630 This cause arises from a personal injury suit brought by Perez in 1987 against Exxon for injuries he sustained while cutting pipe for Exxon under the supervision of Exxon’s maintenance supervisor. Trial was before a jury which delivered a verdict in Perez’s favor. Based on the jury’s verdict, the trial court entered judgment against Exxon, awarding Perez actual and exemplary damages.
Exxon complains that because the trial court failed to submit a question and definition1 to the jury regarding Perez’s status as its borrowed servant, it was denied a viable affirmative defense. Specifically, Exxon asserts that since it was a subscriber under the Act and was covered by a workers’ compensation policy, it would have been insulated from common-law negligence liability had the jury answered affirmatively to its proposed borrowed servant question. See TEX.REV.CIV.STAT.ANN. art. 8308–1.03(18), 3.05, 3.08, 3.23–3.26 (Vernon Supp.1992)).
The court of appeals held that a contract between Exxon and Perez’s employer, Hancock Construction & Services Co. (Hancock), was determinative of Perez’s job status and that, consequently, the trial court did not err by refusing Exxon’s proposed question. In reaching this conclusion, the court of appeals relied on the case of Continental Ins. Co. v. Wolford, 526 S.W.2d 539, 541–42 (Tex.1975) (no evidence that worker was an employee).
Further, we have held that unless an employee gives timely notice of his reservation of common-law claim, an employer who pleads and proves subscriber status is immune from liability for common-law negligence and the employee’s exclusive remedy is under the Act. See Garza v. Alviar, 395 S.W.2d 821, 824 (Tex.1965).
Accordingly, pursuant to TEX.R.APP.P. 170, without hearing oral argument, a majority of this court grants Exxon’s application for writ of error, reverses the judgment of the court of appeals, and remands this case to the trial court for new trial.
Exxon’s proposed question and accompanying definition were taken from 1 STATE BAR OF TEXAS, TEXAS PATTERN JURY CHARGES PJC 6.02 (1987). Although we do not necessarily approve of this particular charge as offered in this case, it is not “affirmatively incorrect.” See Placencio v. Allied Indus. Int’l, Inc., 724 S.W.2d 20, 21 (Tex.1987) (citations omitted).
For example, Perez testified that Exxon’s foreman not only supervised the job-site but also instructed Perez as to precisely where and how the pipe should be cut, thereby providing evidence that by directing even “the details” of the work, Exxon possessed the right of control. See Anchor Casualty Co. v. Hartsfield, 390 S.W.2d 469, 471 (Tex.1965).