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Court of Appeals of Texas, Houston (1st Dist.).

MICHELLE HUDSON, Appellant

v.

MEMORIAL HOSPITAL SYSTEM, MEMORIAL HERMANN HEALTH SYSTEM, THYSSENKRUPP ELEVATOR CORPORATION, AND C.B. RICHARD ELLIS, INC., Appellees

NO. 01-19-00300-CV

|

Opinion issued April 15, 2021

On Appeal from the 152nd District Court

Harris County, Texas

Trial Court Case No. 2016-83958

Panel consists of Justices Hightower, Countiss, and Farris.

MEMORANDUM OPINION

Richard Hightower Justice

In this personal injury suit, Michelle Hudson challenges the trial court’s summary judgment rendered against her in favor of Memorial Hermann Health System1, CB Richard Ellis, Inc., and ThyssenKrupp Elevator Corporation. Hudson raises two issues on appeal. She contends that the trial court erred in granting summary judgment against her because it incorrectly applied principles of premises liability rather than principles of ordinary negligence to her claims, and she asserts that there are genuine issues of material fact with respect to her claims, precluding summary judgment.

We affirm.

Background

Hudson sued Memorial Hermann, claiming that she was injured on Memorial Hermann’s property. At the time, Hudson was employed by Memorial Hermann, a non-subscriber under the Texas Workers’ Compensation Act. In her first amended petition, Hudson alleged that she “was in an elevator on [Memorial Hermann’s] premises,” when “the elevator stopped suddenly and violently.” She stated that she had “then pushed the elevator buttons and felt what seemed like an electric shock.”

Hudson also sued CB Richard Ellis, Inc. (“CBRE”), which managed the premises, and ThyssenKrupp Elevator Corporation, which provided maintenance services for the elevator.

Hudson alleged that the malfunctioning elevator “was an unreasonably dangerous condition created by [the defendants’] failure to properly and timely maintain, control, inspect and/or service the improperly functioning elevator and/or warn of the unreasonably dangerous condition.” Hudson alleged that the defendants had “deviated from the reasonable standard of care,” which “they had a duty to exercise and [had] breached said duty through its [sic] negligent acts and omissions” of:

1. Failing to properly maintain the elevator in question;

2. Failing to regularly and systematically inspect the elevator in question so Defendants could make safe or warn of the dangerous condition;

3. Failing to properly inspect the elevator and elevator equipment;

4. Allowing an unreasonably dangerous condition to exist on the property;

5. Failing to correct the unreasonably dangerous condition;

6. Failing to correct the unreasonably dangerous condition before placing the elevator back into service;

7. Failing to properly inspect the elevator and the cause of its repeated failure condition before placing the elevator back into service;

8. Failing to warn Plaintiff of the unreasonably dangerous condition of the elevator and elevator equipment; and

9. Failing to discover the unreasonably dangerous condition.

Hudson also pleaded the doctrine of res ipsa loquitor.

Hudson further claimed that “[t]he conditions on the premises posed an unreasonable risk of harm because it is foreseeable that an improperly inspected and maintained elevator would malfunction and create an unsafe and unexpected hazard.” Hudson alleged that the defendants’ “negligent acts or omissions” proximately caused her “to suffer serious physical injuries.” She sought damages for medical expenses, physical pain, mental anguish, and lost wages.

Although it was later shown in the summary-judgment proceedings that Hudson was an employee of Memorial Hermann at the time of her alleged injury and that Memorial Hermann was a non-subscriber under the Texas Workers’ Compensation Act, Hudson did not allege in her first amended petition (her live pleading) that she was Memorial Hermann’s employee at the time of the incident. The only statement Hudson made in her petition, related to her employment, was her allegation that she “was an invitee at the time of injury because she was on the premises for work purposes.” In short, Hudson made no allegations that she was suing for injuries based on any duties Memorial Hermann owed to her in its role as her employer.

Memorial Hermann filed a no-evidence motion for summary judgment, asserting that Hudson had produced no evidence to support the required elements of her premises-liability claim. Specifically, Memorial Hermann asserted that there was no evidence (1) that the elevator, which Hudson claimed injured her, “had a condition that posed an unreasonable risk of harm,” (2) that Memorial Hermann “had actual knowledge of the condition,” or (3) that Memorial Hermann had “failed to exercise reasonable care to reduce or eliminate the risk.”

Hudson responded to Memorial Hermann’s motion by moving for a continuance to permit her to conduct additional discovery. The trial court granted the continuance.

ThyssenKrupp filed a combined traditional and no-evidence motion for summary judgment. In support of its no-evidence motion for summary judgment, ThyssenKrupp asserted that Hudson had presented no evidence of the elements of a negligence or premises-liability claim against ThyssenKrupp.

In support of its traditional motion for summary judgment, ThyssenKrupp offered the affidavit of Brent Early, its operations manager. Early testified that ThyssenKrupp provided “elevator maintenance services” to the elevators in the building where Hudson was allegedly injured. Early testified that the incident involving Hudson was reported to ThyssenKrupp on December 11, 2014, the day the incident occurred. He stated that the next day, ThyssenKrupp sent two of its mechanics to inspect the elevator. The mechanics “inspected and observed the elevator’s operation” and “confirmed” that the elevator was operating “correctly and without malfunction.”

Hudson responded to ThyssenKrupp’s combined motion for summary judgment. She offered her own deposition testimony in which she stated that, after the alleged incident, her supervisor, B. Hazard, had taken her to the building manager’s office to report the incident. Hudson testified that she then heard Hazard tell the building manager that Hazard had also experienced problems with the elevator that same day. In addition, she asserted that ThyssenKrupp’s negligence could be inferred by applying the doctrine of res ipsa loquitor.

Memorial Hermann filed a motion to reconsider its previously filed motion for summary judgment. Hudson responded by “incorporate[ing] by reference ... all arguments presented and evidence attached to her responses” to ThyssenKrupp’s motion for summary judgment.

CBRE also filed a combined no-evidence and traditional motion for summary judgment. In support of its no-evidence motion, CBRE claimed that Hudson had failed to adduce evidence supporting any element of a negligence or premises-liability claim.

Responding to CBRE’s motion, Hudson offered her own affidavit in which she stated that prior to the date of her alleged injury, she had observed the elevator malfunctioning on different occasions. She claimed that she “would then notice that the elevator would be shut down ... for maintenance.”

Hudson also offered the affidavit of B. Hazard, her former supervisor, who testified that she had also experienced the elevator malfunction on the same day as Hudson’s alleged elevator incident. Hazard stated that she had accompanied Hudson to the building manager’s office to report Hudson’s incident. While there, Hazard reported that she, too, had experienced the elevator malfunction that day.

In addition, Hudson offered the two-page expert report of J.R. Freeman, a certified elevator safety inspector. In his report, Freeman opined that, based on his education and experience, the elevator “probably had a contactor failure.” He stated that “[m]ore likely than not, this could [have] created a jerking or abrupt stop, or a clipping of a door lock which could create a jerking and stopping.” After reviewing documentation related to the maintenance of the elevator, Freeman also noted that ThyssenKrupp had not produced certain 2014 maintenance records required by the administrative code regulating elevator safety. Freeman also opined that documentation produced by ThyssenKrupp did not reflect maintenance of the elevator that complied with industry standards.

Hudson filed supplemental responses (1) to Memorial Hermann’s motion to reconsider its combined motion for summary judgment and (2) to ThyssenKrupp’s combined motion for summary judgment. In the supplemental responses to Memorial Hermann’s and ThyssenKrupp’s motions for summary judgment, Hudson stated that she was incorporating by reference her arguments and evidence offered in support of her response to CBRE’s motion.

ThyssenKrupp filed objections to Hudson’s evidence offered in support of her response to CBRE’s combined motion for summary judgment. Specifically, ThyssenKrupp objected to Hudson’s affidavit, Freeman’s expert report, and Hazard’s affidavit. CBRE also filed objections to the evidence, expressly adopting the objections filed by ThyssenKrupp. In addition, Memorial Hermann objected to Hudson’s affidavit and to Freeman’s expert report.

The trial court granted most of ThyssenKrupp’s objections to the evidence and ordered Freeman’s expert report and Hazard’s affidavit struck from the summary-judgment record. The trial court also struck the majority of Hudson’s affidavit from the record because her affidavit testimony was inconsistent with her earlier deposition testimony in which she had testified that she was not aware of any problems with the elevator before the alleged incident. This included the portions of Hudson’s affidavit in which she stated that, prior to the alleged incident in this case, she had observed the elevator malfunctioning.

The trial court signed orders granting Memorial Hermann’s no-evidence motion for summary judgment and the combined no-evidence and traditional motions for summary judgment of CBRE and ThyssenKrupp. The orders were signed on the same day. The trial court did not specify whether CBRE’s or ThyssenKrupp’s motions were granted on no-evidence or traditional grounds. By granting the motions for summary judgment, the trial court rendered a take-nothing judgment against Hudson in favor of Memorial Hermann, CBRE, and ThyssenKrupp (collectively, “Appellees,” hereafter).2

Summary Judgment

In two issues, Hudson asserts that the trial court erred in granting Appellees’ motions for summary judgment.

A. Standard of Review

We review a trial court’s summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). In conducting our review, we take as true all evidence favorable to the non-movant, and we indulge every reasonable inference and resolve any doubts in the non-movant’s favor. Id. If a trial court grants summary judgment without specifying the grounds for granting the motion, we must uphold the trial court’s judgment if any of the asserted grounds are meritorious. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005).

A party seeking summary judgment may combine, in a single motion, a request for summary judgment under both the no-evidence and the traditional standards. Binur v. Jacobo, 135 S.W.3d 646, 650–51 (Tex. 2004). To prevail on a no-evidence summary-judgment motion, a movant must identify “one or more essential elements of a claim or defense ... as to which there is no evidence.” TEX. R. CIV. P. 166a(i); see B.C. v. Steak N Shake Operations, Inc., 598 S.W.3d 256, 259 (Tex. 2020). The burden then shifts to the nonmovant to produce “summary judgment evidence raising a genuine issue of material fact.” TEX. R. CIV. P. 166a(i); B.C., 598 S.W.3d at 259.

A no-evidence summary judgment may not be granted if the non-movant brings forth more than a scintilla of evidence to raise a genuine issue of material fact on the challenged elements. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). Less than a scintilla of evidence exists when the evidence is “so weak as to do no more than create a mere surmise or suspicion” of a fact. Id. More than a scintilla of evidence exists when reasonable and fair-minded individuals could differ in their conclusions. Id.

To prevail on a traditional summary judgment, the movant bears the burden of proving that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); SeaBright Ins. Co. v. Lopez, 465 S.W.3d 637, 641 (Tex. 2015). When a defendant moves for summary judgment, it 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 its affirmative defense, thereby defeating the plaintiff’s cause of action. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). An issue is conclusively established if reasonable minds could not differ about the conclusion to be drawn from the facts in the record. Cmty. Health Sys. Prof’l Servs. Corp. v. Hansen, 525 S.W.3d 671, 681 (Tex. 2017).

If the movant meets its burden, the burden then shifts to the nonmovant to raise a genuine issue of material fact precluding summary judgment. See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). The evidence raises a genuine issue of fact if reasonable and fair-minded jurors could differ in their conclusions in light of all of the summary judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007).

B. Premises-Liability Law Governs Claim Against Memorial Hermann

In her first issue, Hudson contends that the trial court erred by granting summary judgment for Memorial Hermann based on the legal principles governing premises liability rather than on the principles governing ordinary negligence. She argues that because she was employed by Memorial Hermann, a non-subscribing employer, and “was injured during the course and scope of her employment on premises owned and controlled” by Memorial Hermann, her injuries were “workplace injuries suffered by an employee and subject to the provisions of Chapter 406 of the Texas Labor Code.” Hudson asserts the Labor Code required that her claim against Memorial Hermann be “determined by an ordinary negligence standard rather than a premises liability standard.”3 Hudson contends that, for this reason, she was not required to offer evidence of the elements of premises liability in her summary-judgment responses, rather, she was required only to offer evidence of the elements of ordinary negligence.4

1. Argument not preserved

Hudson did not raise her argument that the trial court incorrectly applied the legal principles of premises liability rather than the principles of ordinary negligence in her summary-judgment responses. A nonmovant must expressly present to the trial court any reasons for avoiding the movant’s right to summary judgment. McConnell v. Southside ISD, 858 S.W.2d 337, 343 (Tex. 1993); see TEX. R. CIV. P. 166a(c) (“Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.”); D.R. Horton-Tex., Ltd. v. Markel Int’l Ins. Co., 300 S.W.3d 740, 743 (Tex. 2009) (“A non-movant must present its objections to a summary[-]judgment motion expressly by written answer or other written response to the motion in the trial court or that objection is waived.”). Because she did not raise this argument in her summary-judgment responses, Hudson failed to preserve this issue for our review, and we cannot consider it on appeal as a ground for reversal. See TEX. R. CIV. P. 166a(c); McConnell, 858 S.W.2d at 343.

2. Argument without merit

Even if Hudson’s legal argument is properly presented on appeal, we conclude it is without merit.

Hudson correctly points out that that an employer has a “duty to use ordinary care in providing a safe workplace.” LMC Complete Auto., Inc., v. Burke, 229 S.W.3d 469, 476 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) (citing Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006)); see TEX. LAB. CODE § 411.103(1)–(3) (providing that each employer shall “provide and maintain employment and a place of employment that is reasonably safe and healthful for employees,” “install, maintain, and use methods, processes, devices, and safeguards,” and “take all other actions reasonably necessary to make the employment and place of employment safe”). Hudson also correctly points out that, under the Labor Code, if an employer elects to be a non-subscriber to workers’ compensation insurance, as Memorial Hermann has, then a consequence of that choice is that the non-scribing employer may be sued for negligence by or on behalf of the employee “to recover damages for personal injuries or death sustained by [the] employee in the course and scope of the employment.” TEX. LAB. CODE § 406.033(a), (d). And she accurately observes that the Labor Code strips the non-subscribing employer of certain defenses, including contributory negligence and assumed risk. Id. § 406.033(a). Hudson, however, incorrectly asserts that when an employee sues a non-subscribing employer for personal injuries sustained in the workplace in the course and scope of her employment, the employee’s claims are necessarily governed by principles of ordinary negligence, even when, as pleaded here, the employee’s injuries are proximately caused solely by an alleged dangerous condition of the workplace premises, and the plaintiff-employee asserts no claim that her injuries were caused by a breach of the additional duties an employer owes to its employees.

The unmeritorious nature of Hudson’s argument is revealed by the Supreme Court of Texas’s opinion in Austin v. Kroger Tex. L.P., 465 S.W.3d 193 (Tex. 2015). There, the court—in answering a certified question from the Fifth Circuit Court of Appeals regarding a premises-liability claim asserted by an employee against a non-subscribing employer5—confirmed that “an employer has the same premises-liability duty to its employees as other landowners have to invitees on their premises.” Id. at 202. The court stated that, “[w]hile an employer’s liability [to its employees] may differ from that of other landowners due to the statutory waiver of its defenses, its premises-liability duty is the same as that owed by landowners to invitees generally.” Id. (internal citation omitted; emphasis in original). The supreme court clarified that an employer’s premises-liability duty, which is the same general duty as other premises owners, was “a duty to make safe or warn against any concealed, unreasonably dangerous conditions of which the landowner is, or reasonably should be, aware but the invitee is not.” Id. at 203. Necessary to the Austin court’s confirmation that a non-subscribing employer’s premises-liability duty to its employee is the same as a landowner’s general premises-liability duty to an invitee is the recognition that an employee’s suit against her employer for workplace injuries may be based on premises-liability principles rather than on ordinary negligence principles. See id. at 202; see Arce v. McGough, No. 04-18-00064-CV, 2018 WL 4608464, at *3 (Tex. App.—San Antonio, Sept. 26, 2018, no pet.) (mem. op.) (citing Austin and recognizing that, regardless of whether plaintiff was contractor or employee of defendant-premises owner, duty owed to plaintiff by premises owner for claim arising from premises defect was the same; that is, “an employer’s duty to make its premises reasonably safe for employees is identical to a landowner’s duty to make its premises reasonably safe for invitees generally”).

We note that the court in Simon v. Johns Community Hospital more directly addressed the argument raised by Hudson here, holding that when “an employee seeks damages [against her non-subscriber employer] for injuries caused by a dangerous [premises] condition, he or she must prove the elements of a premises-liability case.” No. 03–07–00057, 2008 WL 2309295, at *3 (Tex. App.—Austin June 4, 2008, no pet.) (mem. op.). There, Simon, a nurse, was employed by a hospital, which was a non-subscriber. Id. at *1. She sued the hospital for injuries that she sustained when she slipped on a substance on the hospital floor. Id.

The hospital filed a no-evidence motion for summary judgment, asserting that there was no evidence that it had actual or constructive knowledge of the substance on the floor, an essential element Simon was required to prove to establish the hospital’s premises liability to her as an employee-invitee. Id. The trial court granted the hospital’s motion. Id.

On appeal, Simon emphasized that she had pleaded general negligence theories of recovery based on her allegation that the hospital had not provided a safe workplace. Id. She insisted that she was “not required to prove the elements of a premises liability claim because an employer’s duty to its employees to provide them a safe workplace is conceptually distinct and independent from the duties the employer owes to invitees generally.” Id. at *2. The court rejected Simon’s argument, recognizing that “[the] supreme court had stated the general principle that ‘the nature of the duty of the landowner to use reasonable care to make his premises reasonably safe may, in all material respects, be identical with the nature of the duty of the master to use reasonable care to provide his servant with a reasonably safe place to work.’ ” Id. (quoting Sears, Roebuck & Co. v. Robinson, 280 S.W.2d 238, 240 (Tex. 1955), rev’d, in part, on other grounds by Austin, 465 S.W.3d at 212)). The court clarified that “[t]his does not mean that every negligence claim brought by an employee against a non-subscriber employer is inherently a premises liability suit.” Id. at *3 (internal quotation marks omitted).

The court stated that “[t]he imposition of negligence liability for injury caused by a dangerous condition, as contrasted with injury that is the contemporaneous result of negligent activity, is what distinguishes a premises defect claim from a claim of ordinary negligence.” Id. at *2 (citing Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992)). On appeal, Simon acknowledged that her “entire liability case revolve[d] on whether the substance on the floor was a dangerous condition.” Id. The court stated, “Had there been issues in the instant case not purely dependent on the existence of this dangerous condition, and on Johns Community Hospital’s knowledge of its presence, this would not have been a premises liability case.” Id. at *3 (internal quotation marks omitted). But, when “an employee seeks damages for injuries caused by a dangerous condition, [as Simon did,] he or she must prove the elements of a premises liability cause of action.” Id.

We are mindful that, in Austin, the Supreme Court of Texas clarified that “[i]n a typical premises-liability case, the landowner owes the invitee two duties: a duty to keep the premises reasonably safe and a duty not to injure the invitee through contemporaneous negligent activity,”6 but, in a case in which “the landowner is also an employer and the invitee is also its employee, this additional relationship may give rise to additional duties, such as a duty to provide necessary equipment, training, or supervision.” Austin, 465 S.W.3d at 215. The court observed that, although it had “addressed the interaction between premises-liability claims and negligent-activity claims on several occasions,” it had “never addressed the interaction between premises-liability claims and an employer’s other general negligence duties.” Id. at 215–16.

In Austin, the employee-plaintiff had, in addition to asserting a premises-liability claim against his employer, alleged that his landowner-employer had failed “to provide a ‘necessary instrumentality’ ” to safely do his job.” Id. at 215. The court stated that the employee’s “instrumentalities claim invoke[d] one of [the] additional duties [that an employer owed an employee]: the duty to furnish reasonably safe equipment necessary for performance of the job.” Id. The court observed, “When an injury arises from a premises condition, it is often the case that any resulting claim sounds exclusively in premises liability, but that is not necessarily the case. An injury can have more than one proximate cause.” Id. The court stated that the fact that the employee had alleged that a condition of the premises proximately caused his injury did not preclude an additional claim that the employer-landowner’s negligent failure to provide the instrumentality also caused his injury. Id.

The Austin court determined that, as an employer, the landowner owed its employee “duties in addition to its premises-liability duty and its duty not to engage in negligent activities, including the duty to provide [the employee] with necessary instrumentalities.” Id. at 216 (emphasis added). The court explained that an instrumentalities claim did not necessarily involve contemporaneous activity by the employer. Id. The court rejected the employer’s assertion that because the employee had not alleged any negligent activity by the employer-landowner contemporaneous with the employer’s alleged failure to provide the instrumentality, the employee’s failure-to-provide-instrumentality claim was barred. Id. However, as relevant to Hudson’s appellate argument here, the supreme court did not hold that the additional duties owed by an employer to its employees replaces the premises-liability duty owed by an employer-landowner for claims arising from a premises condition and sounding exclusively in premises liability. See id. Rather, an employee-plaintiff’s claim that her injuries were caused by a breach of the additional duties owed to her by her employer may be brought in addition to a claim that her injuries were caused by a breach of the premises-liability duty owed to her by her landowner-employer. See id.

Turning to the instant suit, a review of Hudson’s pleadings reveals that her claim against Memorial Hermann sounds in premises liability. Although Hudson’s amended petition contains separate headings of “Cause of Action: Negligence” and “Cause of Action: Premises Liability,” “we ... must look to the substance of a plea for relief, not merely its titles and headings, to determine the nature of relief sought.” Garden Oaks Maint. Org. v. Chang, 542 S.W.3d 117, 124 (Tex. App.—Houston [14th Dist.] 2017, no pet.); see Marks v. St. Luke’s Episcopal Hosp., 319 S.W.3d 658, 665 (Tex. 2010) (recognizing, in case in which plaintiff had divided petition under headings “Negligence” and “Premises Liability,” that health-care liability claim cannot be recast as another cause of action to avoid statutory requirements governing those claims and that whether pleading stated health-care liability depends on underlying substance of pleading, not its form).

“When the alleged injury is the result of the condition of the premises, the injured party can recover only under a premises liability theory.” Wyckoff v. George C. Fuller Contracting Co., 357 S.W.3d 157, 163 (Tex. App.—Dallas 2011, no pet.) (citing H.E. Butt Grocery Co. v. Warner, 845 S.W.2d 258, 259 (Tex. 1992)). “Adroit phrasing of the pleadings” to encompass other theories of negligence does not affect application of premises-liability law to the claims. McDaniel v. Cont’l Apartments Joint Venture, 887 S.W.2d 167, 171 (Tex. App.—Dallas 1994, pet. denied) (op. on reh’g).

In her first amended petition, Hudson alleged that she was injured on Memorial Hermann’s premises when “the elevator stopped suddenly and violently,” and she “then pushed the elevator buttons and felt what seemed like an electric shock.” Hudson expressly alleged that “[t]he elevator stopping suddenly and violently was an unreasonably dangerous condition.” She alleged that her injuries were a result of the condition of the premises and that the property itself was unsafe. To the extent that Hudson asserted that Memorial Hermann was negligent in failing “to properly and timely maintain, control, inspect and/or service the improperly functioning elevator and/or warn of the unreasonably dangerous condition,” these allegations relate to Memorial Hermann’s purported conduct in creating, failing to warn of, or failing to correct a condition on the premises that allegedly resulted in her injuries. See In re Tex. Dep’t. of Transp., 218 S.W.3d 74, 78 (Tex. 2007) (holding that appellants’ allegations that TxDOT failed to use ordinary care in designing, inspecting, maintaining, and employing others to inspect and maintain bridge and surrounding roadway pleaded cause of action for premises or special defect, not negligent activity, because activities listed by appellants “would be causes of the conditions at the scene of the accident,” not contemporaneous activities that caused appellants’ injuries); see also Austin, 602 S.W.3d at 203 (stating that, under premises-liability theory of recovery, landowner owes a “duty to make safe or warn against any concealed, unreasonably dangerous conditions of which the landowner is, or reasonably should be, aware but the invitee is not”). Thus, as pleaded, Hudson’s claim against Memorial Hermann was a premises-liability claim. See Warner, 845 S.W.2d at 259 (holding that when injury alleged resulted from condition of premises, injured party alleged only premises-liability claim); see also Shaw v. Wells Fargo Bank, No. 02-20-00011-CV, 2020 WL 5241188, at *2 n.1, *3 (Tex. App.—Fort Worth Sept. 3, 2020, no pet.) (mem. op.) (affirming summary judgment where defendant moved for no-evidence summary judgment only on claim for premises liability, even though plaintiff had pleaded “cause of action for premises liability, negligence, and/or negligence per se,” because plaintiff had alleged that “a premises condition caused her injuries,” thus making plaintiff’s claim a premises-liability claim).

Hudson’s first amended petition also shows that she made no claims against Memorial Hermann based on its additional duties to her as her employer. The only statement Hudson made in her amended petition regarding her employment was that she “was an invitee [on Memorial Hermann’s premises] at the time of injury because she was on the premises for work purposes.” Hudson indicated that she was suing Memorial Hermann based on its status as the party that “owned, operated, controlled and/or occupied” the premise where she was injured. Hudson asserted no claim against Memorial Hermann based on its status as her employer. And she made no claim that her injuries were proximately caused by any breach of Memorial Hermann’s duty to her as her employer to provide a safe workplace.

We hold that, even though the summary-judgment evidence later showed that Memorial Hermann was her employer, Hudson’s claim against Memorial Hermann, as pleaded, sounded only in premises liability. Hudson raised no claims against Memorial Hermann based on any duties that it owed her in its role as her employer. Cf. Austin, 5 S.W.3d at 215–216. Thus, the trial court properly analyzed Hudson’s claim against Memorial Hermann under the legal principles and elements of proof governing premises liability. See Simon, 2008 WL 2309295, at *2–*3.

We overrule Hudson’s first issue.

C. Propriety of Summary Judgment

In her second issue, Hudson contends that the trial court erred by granting summary judgment in favor of Appellees “because genuine issues of material fact existed as to the elements [of] Hudson’s negligence claims that precluded summary judgment.”

1. Premises-Liability Claim

In the trial court, Memorial Hermann filed a no-evidence motion for summary judgment, and ThyssenKrupp and CBRE each filed a combined no-evidence and traditional motion for summary judgment in which they asserted that Hudson could not produce more than a scintilla of evidence with respect to any of the elements of her premises-liability claim. See TEX. R. CIV. P. 166a(i); see also Henkel v. Norman, 441 S.W.3d 249, 251–52 (Tex. 2014). (listing elements of premises liability when plaintiff is invitee). In her second issue, Hudson has not challenged the merits of Appellees’ no-evidence motions for summary judgment on her premises-liability claim. Instead, Hudson continues to assert—as she did in her first issue—that the elements of proof for ordinary negligence, and not the elements of proof for premises liability, govern whether summary judgment in Appellees’ favor was proper. Thus, because she has not challenged the merits of Appellees’ motions for summary judgment as to her premises-liability claim, we must affirm the trial court’s grant of summary judgment as to that claim. See Little v. Delta Steel, Inc., 409 S.W.3d 704, 722 (Tex. App.—Fort Worth 2013, no pet.) (affirming no-evidence summary judgment as to gross negligence claim when appellant did not challenge merits of motion on that claim on appeal); Kipp v. Dyncorp Tech. Servs., LLC, No. 01-06-00906-CV, 2007 WL 3293719, at *5 (Tex. App.—Houston [1st Dist.] Nov. 8, 2007, no pet.) (mem. op.) (affirming no-evidence summary judgment on premises-liability claim because, in trial court, movant asserted no evidence was produced by non-movant on each element of claim, but, on appeal, non-movant did not address two elements); see also Vawter v. Garvey, 786 S.W.2d 263, 264 (Tex. 1990) (proscribing reversal of summary judgment without properly assigned error).

2. Negligence Claim

As held in the first issue, Hudson has asserted a claim against Memorial Hermann based only on premises liability, not on ordinary negligence. However, it is less clear whether Hudson’s claims against CBRE and ThyssenKrupp sound in premises liability or in negligence. Specifically, it is unclear from the record whether either CBRE, as property manager of Memorial Hermann’s premises, or ThyssenKrupp, as the company that serviced the elevator, had the required control over the property to be liable under a premises-liability theory. See United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 474 (Tex. 2017) (“[T]he duty to make the premises safe or warn of dangerous conditions generally runs with the ownership or control of the property, and a defendant’s liability under a premises liability theory rests on the defendant’s assumption of control of the premises and responsibility for dangerous conditions on it.” (internal quotation marks omitted)); Allen Keller Co. v. Foreman, 343 S.W.3d 420, 424 (Tex. 2011) (recognizing that general negligence principles apply to contractor, which left premises in unsafe condition). Thus, we determine whether summary judgment was proper based on ordinary negligence against CBRE and ThyssenKrupp.

The elements of a negligence claim are (1) the existence of a legal duty, (2) a breach of that duty, and (3) damages proximately caused by the breach. Gharda USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338, 352 (Tex. 2015). In their respective combined no-evidence and traditional motions for summary judgment, CBRE and ThyssenKrupp listed each element of a negligence claim and asserted that Hudson could not produce evidence with respect to any of the elements. See TEX. R. CIV. P. 166a(i).

In her response to CBRE’s no-evidence motion, which she incorporated by reference into her supplemental response to ThyssenKrupp’s motion, Hudson pointed to Memorial Hermann’s “case report, a document” filled out after the alleged incident, describing the incident as reported by Hudson and indicating that the elevator had been shut down following the incident. Hudson asserted that the case report was evidence showing that CBRE and ThyssenKrupp had breached their duty of care to her. However, cases have long recognized that the mere occurrence of an accident is not itself evidence of negligence. See Rankin v. Nash-Tex. Co., 105 S.W.2d 195, 199 (Tex. [Comm’n Op.] 1937); Flores v. Rector, No. 07-19-00274-CV, 2020 WL 4912921, at *4 (Tex. App.—Amarillo Aug. 20, 2020, no pet.) (mem. op.); Trejo v. Laredo Nat’l Bank, 185 S.W.3d 43, 48 (Tex. App.—San Antonio 2005, no pet.).

Hudson also cited her own affidavit as evidence that CBRE and ThyssenKrupp breached their duty of care to her. On appeal, she also points to Hazard’s affidavit. However, the cited evidence is no longer part of the summary-judgment record. After granting objections to the affidavits, the trial court struck, from the summary-judgment record, (1) Hazard’s affidavit, (2) the cited portions of Hudson’s affidavit, and (3) Freeman’s expert report. Hudson raises no challenge on appeal to the trial court’s order striking her evidence from the record. When reviewing whether a summary judgment was properly granted, we may not consider evidence struck from the record because that evidence is not a part of the summary-judgment record considered by the trial court. See McCollum v. The Bank of New York Mellon Tr. Co., 481 S.W.3d 352, 362 (Tex. App.—El Paso 2015, no pet.) (citing Trudy’s Tex. Star, Inc. v. City of Austin, 307 S.W.3d 894, 898 n.2 (Tex. App.—Austin 2010, no pet.); Esty v. Beal Bank S.S.B., 298 S.W.3d 280, 294 (Tex. App.—Dallas 2009, no pet.)). Thus, we may not consider the struck portions of Hudson’s affidavit that she relied on in the trial court or Hazard’s affidavit now cited by Hudson on appeal.

Without more, Hudson’s summary-judgment evidence of a breach of duty falls short of raising a scintilla of evidence because it is “so weak as to do no more than create a surmise or suspicion” of fact.7 King Ranch, Inc., 118 S.W.3d at 751; see also Flores, 2020 WL 4912921, at *4 (holding that evidence showing merely that accident occurred was insufficient to demonstrate, for purposes of overcoming grant of no-evidence summary judgment, that defendant had breached duty to plaintiff). Accordingly, we hold that the trial court did not err in granting no-evidence summary judgment in favor of CBRE and ThyssenKrupp on Hudson’s negligence claim.

We overrule Hudson’s second issue.

Conclusion

We affirm the judgment of the trial court.

Footnotes

1

In her original and first amended petitions, Hudson listed both Memorial Hermann Health System and Memorial Hospital System as defendants. In its answer, Memorial Hermann Health System stated that it was “incorrectly designated as ‘Memorial Hospital System’ ” and indicated that Memorial Hermann Health System and Memorial Hospital System were the same entity being incorrectly referred to interchangeably by Hudson. The record does not reflect any answer or appearance by Memorial Hospital System. In her brief, Hudson refers to Memorial Hermann Health System, which was her employer and the owner of the premises where she claimed to have been injured in this suit, primarily as Memorial Hospital System. To avoid confusion, we refer to the party only as Memorial Hermann Health System (“Memorial Hermann”).

2

The trial court signed separate orders granting each of Appellees’ motions for summary judgment. The order granting Memorial Hermann’s motion ordered that Hudson’s “causes of action” against Memorial Hermann were dismissed with prejudice and that Hudson “take nothing by her claims” against Memorial Hermann. Similarly, the order granting ThyssenKrupp’s motion provided that the motion was “granted in its entirety, and that Plaintiff Michelle Hudson take nothing from ThyssenKrupp on her causes of action, such causes of action being disposed of by this Judgment.” The order granting CBRE’s motion, which sought summary judgment on causes of action for ordinary negligence and premises liability, ordered that the motion was granted “in all its parts.” Given the record, the orders, taken together, constitute a final judgment. See Lehman v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001) (“Because the law does not require that a final judgment be in any particular form, whether a judicial decree is a final judgment must be determined from its language and the record in the case.”); see also Ritzell v. Espeche, 87 S.W.3d 536, 537–38 (Tex. 2002) (holding that summary judgment was final because it expressly ordered that plaintiff take nothing by his claims even though motion for summary judgment did not address claim added in amended petition after motion for summary judgment was filed); In re Harris Cty. Hosp. Dist. Aux., Inc., 127 S.W.3d 155, 159 (Tex. App.—Houston [1st Dist.] 2003, orig. proceeding) (holding summary judgment order indicated finality because it ordered plaintiff’s cause of action was “hereby dismissed with prejudice and that Plaintiff take nothing by her suit”); Noorian v. McCandless, 37 S.W.3d 170, 173 (Tex. App.—Houston [1st Dist.] 2001, pet. denied)) (“[A] final judgment may consist of several orders that cumulatively dispose of all parties and issues.”).

3

Hudson now contends on appeal that, based on her status as an employee and Memorial Hermann’s status as her non-subscribing employer, the elements of ordinary negligence—not those of premises liability—also apply to her claims against CBRE and ThyssenKrupp because they are liable as “agents” of Memorial Hermann.

4

Although premises liability is itself a branch of negligence law, it is a “special form” of negligence with elements that define a property owner or occupant’s duty with respect to those who enter the property. Occidental Chem. Corp. v. Jenkins, 478 S.W.3d 640, 644 (Tex. 2016). To prevail on a premises liability claim against a property owner, an injured invitee must establish four elements: (1) the property owner had actual or constructive knowledge of the condition causing the injury; (2) the condition posed an unreasonable risk of harm; (3) the property owner failed to take reasonable care to reduce or eliminate the risk; and (4) the property owner’s failure to use reasonable care to reduce or eliminate the risk was the proximate cause of injuries to the invitee. Henkel v. Norman, 441 S.W.3d 249, 251–52 (Tex. 2014).

5

The certified question was as follows: “Pursuant to Texas law, including § 406.033(a)(1)–(3) of the Texas Labor Code, can an employee recover against a non-subscribing employer for an injury caused by a premises defect of which he was fully aware but that his job duties required him to remedy?” Austin v. Kroger Tex. L.P., 465 S.W.3d 193, 199 (Tex. 2015). The supreme court provided the following answer:

Under Texas law, an employee generally cannot “recover against a non-subscribing employer for an injury caused by a premises defect of which he was fully aware but that his job duties required him to remedy.” As is the case with landowners and invitees generally, employers have a duty to maintain their premises in a reasonably safe condition for their employees, but they will ordinarily satisfy their duty as a matter of law by providing an adequate warning of concealed dangers of which they are or should be aware but which are not known to the employee. “The employee’s awareness of the defect” does not “eliminate the employer’s duty to maintain a safe workplace,” but with respect to premises conditions, that duty is ordinarily satisfied by warning the employee of concealed, unknown dangers; the duty to maintain a reasonably safe workplace generally does not obligate an employer to eliminate or warn of dangerous conditions that are open and obvious or otherwise known to the employee. Exceptions to this general rule may apply in premises liability cases involving third-party criminal activity or a necessary use of the premises. If an exception applies, the employer may owe a duty to protect the employee from the unreasonably dangerous condition despite the employee’s awareness of the danger, and the [Texas Workers’ Compensation Act] will prohibit a non-subscribing employer from raising defenses based on the employee’s awareness.

Id. at 217.

6

Hudson raises no issue on appeal that summary judgment should be reversed because her alleged injuries were caused by a breach of Appellees’ duty not to injure her through “contemporaneous negligent activity.” Instead, her appellate argument focuses on the duties that Memorial Hermann owed to her as her employer.

7

In her response to ThyssenKrupp’s no-evidence motion, Hudson relied on the doctrine of res ipsa loquitor to satisfy her burden on the breach-of-duty element. However, on appeal, Hudson does not assert that res ipsa loquitor would be a sufficient basis to reverse summary judgment on her negligence claim.

Court of Appeals of Texas, El Paso.

STEVEN PAINTER, Individually; TONYA WRIGHT, Individually and as Representative of the Estate of EARL WRIGHT, III;TABATHA ROSELLO RIOS, as Next Friend of ALBERT A. CARRILLO, JR., a Minor; and VIRGINA WEAVER, Individually, Appellants,

v.

AMERIMEX DRILLING I, LTD., Appellee.

No. 08-19-00226-CV

|

April 12, 2021

Appeal from the 83rd District Court of Pecos County, Texas (TC#P-6666-B-83-CV)

Before Rodriguez, C.J., Palafox, J., and Ferguson, Judge

Ferguson, Judge, sitting by assignment

OPINION

YVONNE T. RODRIGUEZ, Chief Justice

This is an appeal from the grant of a traditional motion for summary judgment in a common-law negligence suit. The court below determined the Workers’ Compensation Act (“the Act”) barred the negligence claims brought against Amerimex Drilling I, Ltd. (“Amerimex”), by Appellants who alleged it was vicariously liable for the deaths of two employees, Earl Wright, III and Albert Carrillo, as well as the serious bodily injuries sustained by a third employee, Steven Painter, (collectively “passengers” or “crew”). The deaths and injuries arose from a 2007 roll-over vehicular collision allegedly caused by a fourth employee, J.C. Burchett (“Burchett” or “the driver”), who was driving the men in his personal vehicle from a remote worksite to a “bunkhouse” at the end of the crew’s workday.

In a previous appeal in this case, the Texas Supreme Court determined a fact issue existed as to whether the driver was acting in the course and scope of his employment with Amerimex at the time of the collision, overruling our determination that summary judgment was appropriate, and remanded the case to the trial court for further proceedings. See Painter v. Amerimex Drilling I, Ltd. (Painter I), 561 S.W.3d 125, 139 (Tex. 2018). On remand, Amerimex filed a second traditional motion for summary judgment, this time contending the evidence conclusively established its affirmative defense1 that the Act barred the Appellants’ negligence claims because the passengers were acting in the course and scope of their employment at the time of the collision and Appellants were therefore limited to compensation under the Act. The trial court agreed and granted Amerimex’s motion for summary judgment.

In three issues, Appellants contend the trial court erred in granting summary judgment on Amerimex’s affirmative defense because the evidence does not conclusively establish the passengers were acting within the course and scope of their employment at the time of the collision. First, Appellants contend the passengers’ injuries were not related to, nor did they originate in, the work of Amerimex, as required by the Act’s definition of course and scope of employment. Second, even if the injuries related to or originated in Amerimex’s business, Appellants contend the injuries were sustained while the crew was using the public streets and highways to come and go from the jobsite, which is transportation activity expressly excluded from the Act’s definition of course and scope. See TEX.LAB.CODE ANN. § 401.011(12)(excluding from the Act’s definition of course and scope of employment “transportation to and from the place of employment”). Third, Appellants contend Amerimex does not conclusively demonstrate that the transportation in this case meets the requirements of the exceptions to the transportation exclusion upon which Amerimex relies. See TEX.LAB.CODE ANN. § 401.011(12)(A)(i) and (ii)(excepting from the transportation exclusion transportation that is “paid for by the employer” or “under the control of the employer”).

BACKGROUND

We adopt the background facts stated in Painter I:

Sandridge Energy, Inc., hired Amerimex Drilling I, Ltd., to drill oil-and-gas wells on the Longfellow Ranch in Pecos County. Amerimex provided mobile bunkhouses for its crews and typically located those bunkhouses at the drilling site. However, Sandridge did not allow bunkhouses on the ranch, requiring them to be moved approximately 30 miles away to Fort Stockton. The Sandridge–Amerimex contract accounted for this circumstance by mandating a bonus payment to the crew’s driller to drive the crew to the site. Specifically, the contract provided that “[Amerimex] shall invoice [Sandridge] for and pay each Driller to receive [sic] $50/day to drive crew out to well location.” Amerimex did not require its crews to stay at the bunkhouse or ride with the driller, although it appears undisputed that they typically did both. Further, Amerimex placed no restrictions on what route they took between the bunkhouse and the drilling site or where they stopped along the way.

The Amerimex crews assigned to the Longfellow Ranch project worked twelve-hour shifts on a seven-days-on, seven-days-off schedule. J.C. Burchett was the driller on one of those crews and was paid the daily bonus to drive his crew between the bunkhouse and the ranch in his own truck. Burchett and his crew members—Steven Painter, Earl Wright, and Albert Carillo—all lived significantly farther from the ranch than Fort Stockton, so they generally stayed at the bunkhouse. However, on one or two occasions, Burchett drove with the crew to Big Spring (where Burchett and at least one other crew member lived) after their shift instead of back to the bunkhouse.

On February 28, 2007, Burchett was driving the crew from the ranch back to the bunkhouse after their shift ended. He struck another vehicle driven by Sarah Pena, resulting in a rollover that killed Wright and Carillo and injured Painter and Burchett. Burchett sought and received workers’ compensation benefits following a contested case hearing before the Texas Department of Insurance Workers’ Compensation Division. Amerimex argued in that hearing that Burchett was acting in the course and scope of his employment at the time of the accident, and the Division ultimately found Burchett’s injury compensable because he was paid to transport the crew between the ranch and the bunkhouse, furthering Amerimex’s business interests.

Painter and the deceased crew members’ representatives and beneficiaries (collectively, Painter) did not seek workers’ compensation benefits. However, Amerimex initiated proceedings at the Division to determine whether the injuries suffered by Painter, Wright, and Carillo were covered by its workers’ compensation policy. A Division appeals panel concluded that Amerimex lacked standing to do so and that, in any event, the employees were not injured in the course and scope of their employment and thus did not sustain compensable injuries. In re Tex. Mut. Ins. Co., 331 S.W.3d 70, 73 (Tex.App.—Eastland 2010, orig. proceeding).

Painter I, 561 S.W.3d at 128-29 [Footnotes omitted].

STANDARD OF REVIEW

We review a trial court’s ruling on a motion for summary judgment de novo. Valley Forge Motor Co. v. Sifuentes, 595 S.W.3d 871, 876-77 (Tex.App.—El Paso 2020, no pet.). When reviewing a traditional motion for summary judgment, as opposed to a no-evidence motion, the burden is on the movant to show there exists no genuine issue of material fact such that the movant is entitled to judgment as a matter of law. TEX.R.CIV.P. 166a(c). We accept as true all evidence favorable to the non-movant, indulge every reasonable inference, and resolve any doubts in the non-movant’s favor. Sifuentes, 595 S.W.3d at 876. A defendant moving for summary judgment on an affirmative defense has the burden to establish conclusively that defense. McIntyre v. Ramirez, 109 S.W.3d 741, 748 (Tex. 2003).

The Act’s exclusive remedy provision is an affirmative defense that the defendant must plead and prove. Reveles, 574 S.W.3d at 37; Rico v. Judson Lofts, Ltd., 404 S.W.3d 762, 765 (Tex.App.—San Antonio 2013, pet. denied). To prove the affirmative defense, a defendant must show that the injured worker was: (1) its employee at the time of the work-related injury or death; and (2) the work-related injury or death was compensable by workers’ compensation insurance. TEX.LAB.CODE ANN. § 408.001(a), § 401.011(10).

DISCUSSION

I. The Workers’ Compensation Act

The Act serves as “a mechanism by which workers [can] recover from subscribing employers without regard to the workers’ own negligence while limiting the employers’ exposure to uncertain, possibly high damage awards permitted under the common law.” SeaBright Ins. Co. v. Lopez, 465 S.W.3d 637, 642 (Tex. 2015). “The Act ultimately struck a bargain that allows employees to receive a lower, but more certain, recovery than would have been possible under the common law.” Id. [Internal quotations omitted]. The Act defines a “[c]ompensable injury” as “an injury that arises out of and in the course and scope of employment for which compensation is payable under this subtitle.” TEX.LAB.CODE ANN. § 401.011(10). “Course and scope of employment” is defined by the Act in relevant part as follows:

[A]n activity of any kind or character that has to do with and originates in the work, business, trade, or profession of the employer and that is performed by an employee while engaged in or about the furtherance of the affairs or business of the employer. The term includes an activity conducted on the premises of the employer or at other locations.

TEX.LAB.CODE ANN. § 401.011(12). Thus, the Act’s definition of “course and scope” requires “the injury to (1) relate to or originate in, and (2) occur in the furtherance of, the employer’s business.” See Lopez, 465 S.W.3d at 642 (citing Leordeanu v. Am. Protection Ins. Co., 330 S.W.3d 239, 241 (Tex. 2010)) [Internal quotations omitted].

In addition, the Act expressly excludes from the definition of course and scope “transportation to and from the place of employment ....” See TEX.LAB.CODE ANN. § 401.011(12). Known as the “coming and going” rule, the rationale for the exclusion is that an injury occurring while using the public streets or highways in going to and returning from the place of employment is in most instances “suffered as a consequence of risks and hazards to which all members of the traveling public are subject rather than risks and hazards having to do with and originating in the work or business of the employer.” Janak v. Tex. Employers’ Ins. Assoc., 381 S.W.2d 176, 178 (Tex. 1964).

Exceptions to this transportation exclusion are set forth in Section 401.011(12), subsections (A)-(B) which claw back some forms of coming and going activity that may constitute course and scope activity as defined by the Act. See TEX.LAB.CODE ANN. § 401.011(12)(A)-(B). Meeting the exception requirements, however, does not necessarily mean the course and scope requirements are also met. See Lopez, 465 S.W.3d at 645 (“[b]oth the origination and furtherance elements must be satisfied even if an employee qualifies for one of the exceptions to an exclusion”); see also Freeman v. Tex. Comp. Ins., 603 S.W.2d 186, 192 (Tex. 1980)(exceptions to transportation exclusion do “not enlarge the definition of ‘course of employment’ ”). Consequently, even if Amerimex can show the coming and going in this case satisfies one or more of the exceptions to the transportation exclusion, Amerimex must still also establish that the activity in which the crew members were engaged at the time of the collision falls within the Act’s definition of course and scope of employment.

II. Course and Scope of Employment

In its first issue, Appellants contend Amerimex fails to conclusively establish at the time of the collision the crew was engaged in activity that was “relate[d] to” or that “originate[d] in” Amerimex’s business.2 Specifically, Appellants argue the evidence establishes a genuine issue of material fact about whether the relationship between the crew’s travel and their employment was not “so close that it can fairly be said that the injury had to do with and originated in the work, business, trade or profession of the employer.” See Lopez, 465 S.W.3d at 642.

According to Appellants, the following undisputed facts create a fact issue as to origination: (1) only the driver was paid daily to transport crew members who were not required by Amerimex to travel in the driver’s personal vehicle; (2) the crew was not performing any service for Amerimex after leaving the jobsite because, unlike the driver, they were free to do as they pleased once they left the jobsite; (3) the crew was not required to stay at the bunkhouse; (4) the crew was paid an hourly wage, for fixed hours, at a fixed location, and they were not paid for daily travel to and from the jobsite; (5) at the time of the collision, the crew’s workday had ended and they were off the clock.

Amerimex on the other hand argues the evidence conclusively establishes the crew’s travel was “dictated by Amerimex’s business model” and “enabled by Amerimex,” and therefore originated in Amerimex’s business as a matter of law. See Lopez, 465 S.W.3d at 644 (observing that injured worker’s travel from temporary housing to remote jobsite were “dictated by [employer’s] business model and enabled by [the employer’s] provision of the vehicle and payment of per diem and other expenses”).

To support its argument, Amerimex points to the following undisputed evidence: (1) as an oil-well drilling contractor, Amerimex’s business required its employees to work at temporary remote worksites; (2) Amerimex made available to the crew free temporary housing which was usually erected at the jobsite, but on this project was placed 30 miles away from the jobsite; and (3) Amerimex was contractually obligated to make available to the crew a free ride to and from the jobsite.

Both parties agree that the Texas Supreme Court’s origination analysis in Lopez controls the outcome of this case, so, we begin our analysis there.

A. SeaBright Ins. Co. v. Lopez

In Lopez, an insurance carrier in a workers’ compensation case challenged a summary judgment determining the deceased employee, Candelario Lopez (“Lopez”), was acting within the course and scope of his employment while he was driving himself and two other employees in a company vehicle from temporary housing to a remote jobsite. Lopez, 465 S.W.3d at 640. When considering the question of whether Lopez was engaged in activity that “originated” in the company’s business at the time of his death, the court recognized a distinction between “the risks to which employees are exposed while traveling to and from work [that] are shared by society as a whole and do not arise as a result of the work of employers” and instances where “the relationship between the travel and the employment is so close that it can fairly be said that the injury had to do with and originated in the work, business, trade or profession of the employer.” Id. at 642 (citing Shelton v. Standard Ins., Co. 389 S.W.2d 290, 292 (Tex. 1965)).

The requisite degree of proximity between the travel at issue and employment necessary to meet the origination requirement “is satisfied if the employee’s travel was pursuant to express or implied conditions of his employment contract.” Id. (citing Meyer v. W. Fire Ins. Co., 425 S.W.2d 628, 629 (Tex. 1968)) [Internal quotations omitted]. This inquiry is a “fact-intensive” one “focusing on the nature of the employee’s job, the circumstances of the travel, and any other relevant facts.” Lopez, 465 S.W.3d at 642-43.

B. The “Conclusive” Evidence of Origination in SeaBright Ins. Co. v. Lopez

When considering whether the evidence conclusively established as a matter of law that the conditions of Lopez’s employment included travel, the court considered as its “starting point” evidence of the employer’s business. Lopez, 465 S.W.3d at 643-44. The court next considered the nature of the injured employee’s employment within that business. Id. The court emphasized, however, that the focus must be on the latter, as well as “the circumstances of the travel, and any other relevant facts.” Id. at 643.

Specifically, the court emphasized the following evidence present in that case: (1) the employer, Interstate Treating, Inc., fabricated and installed materials for the oil and gas processing industry, which “called for employing specialized, non-local work crews in constantly changing, remote locations on temporary assignments,” and “[a]lthough [the company] could have hired local employees at each temporary, remote job site, its general practice was to hire people who had worked on previous installation jobs,” id. at 640, 643-44; (2) Lopez’s job, as a civil foreman, was to “oversee the installation of all of the plant’s concrete foundations and the placement of the plant’s equipment,” and he was paid a per diem to offset lodging and food expense, and although he could stay at any motel he wished, he was expected to secure temporary lodging, id.; (3) in order to perform his job, Lopez requested and was provided a company vehicle, for which the company paid fuel and insurance, and which Lopez used to drive to and from remote job sites, id.; (4) on the day of the collision, Lopez was driving himself and two of his coworkers from temporary housing to the remote jobsite in the company vehicle. Id.

After discussing this evidence, the court concluded that the relationship between Lopez’s travel and his employment was so close it could fairly be said his death had to do with and originated in the company’s business because Lopez’ travel was “more akin to those employees such as deliverymen, messengers, collectors, and others, who by the very nature of the work they have contracted to do are subjected to the perils and hazards of the streets.” Id. at 644. Notably, Lopez is silent as to whether the employees traveling as passengers in the company car with Lopez were acting in the course and scope of their employment.

C. Lopez’s Application to This Case

After comparing the evidence in Lopez with the evidence in this case, for three reasons we agree with Appellants that a fact issue exists as to whether the relationship between the crew’s travel in this case and the conditions of their employment was so close it can fairly be said their deaths and injuries originated in the work, business, trade or profession of Amerimex.

First, Amerimex fails to point us in the direction of any evidence describing the nature of the jobs held by Wright, Carrillo, or Painter that would demonstrate the conditions of their employment required them to travel beyond coming and going to work. Instead, Amerimex points to evidence establishing the nature of Burchett’s job which included a daily obligation to make available to the crew a free ride to and from the jobsite as a condition of Burchett’s employment. But the conditions of Burchett’s employment do not speak to whether travel was sufficiently tied to the conditions of Wright, Carrillo, or Painter’s employment. See Lopez, 465 S.W.3d at 642-43 (origination inquiry focuses on the nature of the injured employee’s job).

Amerimex presents no evidence establishing, for example, that the crew shared Burchett’s responsibility of driving fellow crew members to and from the jobsite or that they were compensated for doing so. Rather, it is undisputed that only Burchett was assigned and paid to perform that duty. These facts distinguish this case from Inge, a case relied upon by Amerimex, in which the employer expected one of its employees to transport the other workers to and from the drilling site and paid that employee to do so. Texas Employers’ Ins. Ass’n v. Inge, 208 S.W.2d 867, 867 (Tex. 1948). The employer in that case allowed the workers to determine which employee would drive and they chose Inge. Id. at 867-68. Inge later died in a car accident on a return trip from work, and the trial court concluded that Inge was acting in the course and scope of his employment. Id. at 869. By contrast, the crew members in this case were neither expected to drive for the company, nor were they driving at the time of the collision.

And there is much evidence in this record establishing that the crew’s conditions of employment did not include driving for Amerimex. According to Glen Murphree, Amerimex’s CFO, when it came to the crew, Amerimex was only concerned with their activity while they were at the jobsite. When they were off the jobsite, the crew could do as it pleased.3 Nor is there any evidence establishing that while performing their job at the jobsite, the crew was expected to travel from the rig or between rigs to pick up supplies or transport workers. Indeed, when Murphree was asked whether Amerimex did anything to confirm whether the crew possessed valid driver’s licenses, he testified unequivocally:

[Murphree]. I didn’t care whether they had a ... valid driver’s license or not.

Q. Even J.C. Burchett?

[Murphree]. I didn’t know how they was getting to work. They can all come together. They can drive themselves. They could ride a burro. I didn’t care.... They weren’t driving for me—for Amerimex.

By contrast, in Lopez, when discussing the nature of Lopez’s job with the company the court found it significant that Lopez requested and was provided a company vehicle, presumably because such facts permitted an inference--not present here--that in addition to coming and going, an express condition of Lopez’s job required him to drive frequently between “constantly changing” jobsites and for significant periods of time. In our view, it was this condition of employment, acknowledged by both Lopez and the company, more than any other, that made Lopez akin to a deliveryman, whose only job is to deliver packages on a daily basis from door to door using the public streets while operating transportation furnished or paid by an employer who is in the business of delivering packages.

Here, the $50 bonus paid to Burchett to make available a free ride in his personal vehicle after the completion of the crew’s workday, does not sufficiently tether the crew’s employment to travel. And this record does not contain the type of evidence this Court and others have found determinative when concluding traveling passengers were in fact acting within the course and scope of their employment for purposes of the Act. For example, there is no evidence that the crew was required to ride with Burchett or that a crew member’s refusal to ride with Burchett would result in termination, see, e.g., Liberty Mut. Ins. Co. v. Chesnut, 539 S.W.2d 924, 927 (Tex.App.—El Paso 1976, writ ref’d n.r.e.)(upholding jury verdict finding employee passengers were acting within course and scope of employment while traveling to job site in vehicle driven by driller in part because driller could fire a crew member who refused to ride with him); or that the crew members themselves had insisted on being provided free transportation by the company before agreeing to accept the job, see, e.g., Chesnut, 539 S.W.2d at 927 (testimony from driller establishing neither he nor the crew would work without free transportation);4 or that the crew was paid to travel to and from the jobsite, see id. (testimony “place[d] both the driller and the crew in a position of being paid during the time of going to and from the rig site”); or that at the time of the collision, the crew had undertaken a special mission at Amerimex’s direction for which all of the occupants were responsible, see Janak, 381 S.W.2d at 179 (finding passengers traveling in vehicle driven by coworker were in course and scope because “obligation to procure and transport ice and water” was shared by all crew members each day);5 or that the crew members were furnished a company vehicle and a company credit card to pay for fuel. See Pesqueda v. Martinez, No. 04-16-00568-CV, 2017 WL 5759382, at *5 (Tex.App.—San Antonio Nov. 29, 2017, no pet.)(mem. op.). While these examples are by no means exclusive, they illustrate why Amerimex falls short of establishing as a matter of law the crew in this case was acting in the scope and course of their employment.

Second, the evidence does not conclusively establish that the assignment of the driving duty to Burchett, or travel to and from the jobsite was part of Amerimex’s established business model. Indeed, Murphree testified that the bonus arrangement Amerimex had with Burchett was a one-off because Amerimex normally placed the bunkhouse on the jobsite, making daily coming-and-going travel unnecessary on previous jobs. According to Murphree, on this job, however, the surface owner refused to permit Sandridge to erect bunkhouses at the rig site and instead, required Amerimex to send its bunkhouse “to town,” which was the “first time [Murphree] ever [saw] it or witnessed” such a thing and “[i]t was the only situation [Amerimex was] involved in like that.”

This testimony suggests that when it came to travel, Amerimex’s usual business model was structured so that daily travel was not a condition of the crew’s employment, which explains why Amerimex was not inclined to provide additional pay for daily travel on this job either. Indeed evidence establishes that while Amerimex cut the check paid to Burchett, it was Sandridge that provided the funding. Moreover, even after Amerimex assigned Burchett the driving task for which the bonus could be earned, Amerimex did nothing to require or encourage the crew members to accept the ride.6 Murphree’s testimony was unequivocal that “Amerimex Drilling does not transport employees” and that Amerimex did not concern itself with how the crew arrived at or left the rig as long as the crew showed up for work on time. This testimony further strengthens Appellants’ contention that Amerimex’s business model did not dictate the crew’s travel and that the crew members’ deaths and injuries did not originate in Amerimex’s business.

Third, evidence establishes the crew passengers were paid a fixed hourly rate of pay, for fixed hours, which began and ended at a fixed jobsite; they were not paid for travel, and the collision occurred while they were traveling as passengers, off duty, out of hours, off the jobsite, and on the way to a fixed housing location7 after the completion of their workday. These facts further weigh against a finding that the crew was in the course and scope of their employment at the time of the collision. See, e.g., Rodriguez v. Great American Indemnity Co., 244 F.2d 484, 488 (5th Cir. 1957)(employee who died in a fire while sleeping in a hotel near a remote jobsite was not in course and scope of employment because employee’s job was one with “regular hours at a regular rate of pay per hour and at a regular place of work”).

In the end, we are faced with only three facts that we can confidently say Amerimex conclusively established as a matter of law: (1) the crew was working at a remote jobsite; and (2) Amerimex made available to the crew, a free ride to and from the jobsite and free housing; and (3) the crew was going to the free housing at the time of the collision. In our view, these facts standing alone are insufficient to demonstrate as a matter of law the crew members were acting in the course and scope of their employment for purposes of the Act at the time of the collision. See, e.g., Am. Gen. Ins. Co. v. Coleman, 303 S.W.2d 370, 376 (Tex.1957)(“the mere gratuitous furnishing of transportation by the employer to the employee as an accommodation ... does not bring the employee, when injured in the course of traveling on streets and highways, within the protection of the Workmen’s Compensation Act”). This is especially true in light of Murphree’s testimony in this case that the crew passengers were free to do what they pleased as soon as they left the jobsite. For these reasons, we sustain Appellants’ first issue. We do not reach Appellants’ remaining issues. TEX.R.APP.P. 47.1. We therefore reverse the grant of summary judgment and remand to the trial court for further proceedings.

Footnotes

1

The “exclusive remedy” provision found in Section 408.001(a) of the Texas Workers’ Compensation Act is an affirmative defense that protects subscribing employers from common-law claims, including negligence, that could otherwise be brought by employees for work-related injuries. Reveles v. OEP Holdings, Inc. 574 S.W.3d 34, 37 (Tex.App.—El Paso 2018, no pet.). The affirmative defense does not apply to an employee’s negligence suit if the employee was not acting within the course and scope of his employment at the time of injury because such injuries are not “compensable” under the Act. TEX.LAB.CODE ANN. § 401.011(10).

2

Appellants concede the second element of the “course and scope” definition because it is well established travel to and from work furthers an employer’s business. See Leordeanu, 330 S.W.3d at 242 (recognizing “[a]n employee’s travel to and from work makes employment possible and thus furthers the employer’s business”); Lopez, 465 S.W.3d at 644-45 (same).

3

Murphree testified as follows:

“A. I don’t transport employees. Amerimex Drilling does not transport employees. They can get to work any way they want to get to work. They start work when they get to the rig, and that’s when work begins.... Outside that, you know, we have no control over them.”

...

“A. The employees are hired to work, to get to the rig however they want to get there. They can walk, drive, they can sleep under a bush at night, they don’t have to go to the deal. They don’t have to go to the bunkhouse. They’ve just got to show up when their shift begins, or we’re going to have to look for another employee.”

...

Murphree said it was his “understanding” that when the passengers’ shift ended at 6 a.m. on the day of the collision, the crew was completely “off the clock.”

...

“A. They could go home. They could go to the bunkhouse. They could go dancing. They could go drinking. They could do whatever. We wouldn’t expect to see them until the next morning.”

4

While there is evidence suggesting that Sandridge and Amerimex discussed the bonus as a necessary part of the contract between them, there is no evidence in this record establishing that the injured crew members themselves insisted on a free ride as a condition of acceptance of employment.

5

Amerimex cites to Janak for the proposition that “the Texas Supreme Court has rejected attempts to draw imaginary lines between the driver and the crew for decades.” However, the evidence in Janak established that at the time of the collision the workers were on a journey to accomplish a task for the company for which each of them had an obligation to discharge, i.e. pick up and transport water and ice to the jobsite because there was no water at the drillsite. Janak, 381 S.W.2d at 178, 179. Here the evidence establishes that only Burchett was assigned the duty, and paid, to make available free transportation to and from the jobsite. Consequently, we do not believe the line between Burchett and the crew in this case is “imaginary.”

6

At oral argument, Amerimex’s counsel suggested that the crew’s ability to choose to ride in their own vehicle is not probative of origination. Counsel argued that the “hypothetical” scenario in which the crew members had chosen to drive their own vehicles instead of accepting the ride from Burchett is irrelevant to our inquiry because when the collision occurred the crew had made the choice to ride with Burchett, and according to Amerimex that choice placed the crew within the scope of their employment. We are not persuaded by this argument. Either the conditions of the crew’s employment included travel or they did not. In other words, conditions of employment do not normally hinge on a unilateral decision by either the employer or the employee, but on a mutual understanding of expectations. Here, if both Amerimex and the crew had acknowledged in a written contract that travel was in fact a condition of the crew’s employment, it would not matter if the crew member was driving his own vehicle or riding as a passenger in a coworker’s vehicle, both scenarios would lead to the same conclusion that the crew member was within the scope of his employment. In this case, however, as there is no written contract between Amerimex and the crew members, we must gleen what we can from the duties assigned, limitations and/or liberties imposed or not, by the rules set by the employer and understood by the employee. Consequently, in this context, Amerimex’s decision to permit the crew to make an unconditional “choice” as to the mode of transportation to and from the jobsite suggests travel was not encompassed within the scope of the crew’s employment because an employee normally cannot unilaterally establish his conditions of his employment. By contrast, Burchett did not have the “choice” to refuse to drive the crew because he was specifically assigned the task by Amerimex and Burchett understood it was his job to do so, which suggests his activity at the time of the collision was a condition of his employment.

7

Amerimex’s briefing characterizes the rig as a temporary jobsite, but there is no evidence suggesting that these employees were required to travel to more than one jobsite during the relevant timeframe. Nor is there evidence that the bunkhouse location changed while they were working on this job. These facts further distinguish this case from Lopez, where the work locations were “constantly changing” requiring the employee to stay in different motels.

Court of Appeals of Texas, Eastland.

PEDRO DE LA ROSA AND ANGELINA DE LA ROSA, Appellants

v.

BASIC ENERGY SERVICES, L.P., BY AND THROUGH ITS GENERAL PARTNER, BASIC ENERGY SERVICES GP, LLC, Appellee

No. 11-19-00123-CV

|

filed April 8, 2021

On Appeal from the 441st District Court

Midland County, Texas

Trial Court Cause No. CV52579

Panel consists of: Bailey, C.J., Trotter, J., and Williams, J.

MEMORANDUM OPINION

W. STACY TROTTER JUSTICE

Opinion filed April 8, 2021

Appellants, Pedro and Angelina De La Rosa, appeal the trial court’s order granting Appellee’s, Basic Energy Services, L.P., plea to the jurisdiction. Because the trial court possessed subject-matter jurisdiction over Appellants’ pleaded claims, we reverse and remand.

I. Factual Background

The facts set forth here, with respect to the incidents that gave rise to this suit, were derived from the allegations in Appellants’ operative pleadings filed in this cause. While employed by Appellee as a tanker-truck driver, Pedro De La Rosa was severely injured in a rollover accident as he was transporting water from an oil well operated by Endeavor Energy Resources to a disposal site. The rollover occurred in the early morning hours on an unpaved dirt road near Mentone, Texas. Pedro had worked throughout the night and was transporting his third consecutive load of water. It was still dark outside, and Pedro was driving slowly because the road, for the approximately fifteen miles leading to and from the well, was unpaved and “poorly-maintained.” A large animal ran onto the road as Pedro was maneuvering the tanker truck around a large pothole; the tanker truck he was operating then rolled over as he attempted to avoid the animal.

Because of the extent of Pedro’s injuries, he was transported by helicopter to a hospital in Odessa. Freddie Garcia, the “Area Superintendent” of Appellee’s office in Pecos, introduced himself to Pedro at the hospital, and at some point, Pedro heard Garcia direct the attending doctor not to provide certain medical care to Pedro “in an apparent effort to minimize the records of Pedro’s injuries.” Specifically, Pedro heard the attending doctor state that he needed to insert stitches on Pedro’s eye cavity; Pedro then heard Garcia instruct the doctor not to do so because “Pedro [was] fine.” Later, Pedro applied for and received workers’ compensation benefits to pay his incurred medical expenses; he also received income benefits.

Appellants subsequently filed suit against Appellee and others. As to Appellee, Appellants alleged that Pedro’s injuries from the rollover were intentionally caused (1) by Appellee’s failure to provide a safe place to work and (2) by Appellee’s knowledge that its drivers were fatigued and its requirement that the drivers nevertheless drive excessive hours with minimal rest. On behalf of Pedro, Appellants further alleged that Appellee’s subsequent conduct during Pedro’s post-accident treatment at the hospital in Odessa caused Pedro to sustain independent injuries because Garcia, as Appellee’s agent, pressured and coerced the medical staff to withhold medical care from Pedro and to release him prematurely. On behalf of Angelina, Appellants also pleaded a claim against Appellee for intentional loss of consortium.

In its third amended answer, Appellee included a plea to the jurisdiction in which it asserted that Appellants’ claims were barred by the Texas Workers’ Compensation Act (the Act) and the affirmative defense of election of remedies. Appellants filed a motion to strike Appellee’s plea. After a hearing, the trial court denied Appellants’ motion to strike and granted Appellee’s plea to the jurisdiction.

In their sole issue on appeal, Appellants contend that the trial court erred when it granted Appellee’s plea.1 We agree.

II. Standard of Review

Before a court may dispose of a case, it is essential that the court possess subject-matter jurisdiction. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553–54 (Tex. 2000). A plea to the jurisdiction is a dilatory plea and a proper method by which to challenge a trial court’s subject-matter jurisdiction. Id. at 554. Whether a trial court has subject-matter jurisdiction over a case is a question of law that we review de novo. Harris Cty. v. Annab, 547 S.W.3d 609, 612 (Tex. 2018) (citing Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004)); Ector Cty. v. Breedlove, 168 S.W.3d 864, 865 (Tex. App.—Eastland 2004, no pet.).

The purpose of a plea to the jurisdiction is to defeat a pleaded cause of action without reaching the merits. Blue, 34 S.W.3d at 554. A plea to the jurisdiction may challenge the pleadings, the existence of jurisdictional facts, or both. Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018); City of Merkel v. Copeland, 561 S.W.3d 720, 723 (Tex. App.—Eastland 2018, pet. denied). When the plea challenges the pleadings, as in the case before us, we determine whether the pleader has alleged facts that affirmatively demonstrate the trial court’s subject-matter jurisdiction to hear the case. Houston Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 160 (Tex. 2016) (citing City of El Paso v. Heinrich, 284 S.W.3d 366, 378 (Tex. 2009)). Therefore, our review requires that we accept as true all factual allegations in the pleadings, that we examine the pleader’s intent, and that we construe the pleadings liberally in the pleader’s favor. Id.; Miranda, 133 S.W.3d at 226; Cty. of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002); Tex. Mun. League Intergovernmental Risk Pool v. City of Abilene, 551 S.W.3d 337, 342–43 (Tex. App.—Eastland 2018, pet. dism’d).

III. Analysis

Appellants assert that the trial court erred when it granted Appellee’s plea because they had pleaded sufficient facts to affirmatively show that the trial court had subject-matter jurisdiction over their claims. Appellee maintains that the trial court properly granted its plea because (1) the Act provides the exclusive remedy for Appellants’ claims, (2) Appellants failed to exhaust their administrative remedies, and (3) Appellants elected to receive workers’ compensation benefits.2 We will address each ground raised by Appellee upon which the trial court could have granted the plea.

A. Exclusive Remedy

The Act provides remedies for the prompt payment of medical expenses and lost wages for covered employees who sustain work-related injuries, without the injured employee’s needing to prove liability under a common-law tort theory. TIC Energy & Chem., Inc. v. Martin, 498 S.W.3d 68, 72 (Tex. 2016) (citing HCBeck, Ltd. v. Rice, 284 S.W.3d 349, 350 (Tex. 2009)). In fact, in exchange for the guarantee of the payment of workers’ compensation benefits to the injured employee, the Act prohibits an injured employee from seeking common law remedies from his employer. Id.; see TEX. LAB. CODE ANN. § 408.001(a) (West 2015). Under its exclusive-remedy provision, the Act provides an employer that subscribes to workers’ compensation insurance immunity from common-law negligence claims that may be brought by its employees. LAB. § 408.001(a); Mo-Vac Serv. Co. v. Escobedo, 603 S.W.3d 119, 120 (Tex. 2020).

However, the Act’s exclusive-remedy provision does not prohibit an injured employee from pursuing intentional-injury claims against his employer. Escobedo, 603 S.W.3d at 124–25 (noting that the legislature has never codified or rejected Middleton’s intentional-injury exception and stating: “Notwithstanding the breadth of some of its terms, [the Act’s] evident purpose was to confine its operation to only accidental injuries, and its scope is to be so limited.” (quoting Middleton v. Tex. Power & Light Co., 185 S.W. 556, 560 (Tex. 1916))); Reed Tool Co. v. Copelin, 689 S.W.2d 404, 406 (Tex. 1985) (“The Texas Workers’ Compensation Act is the exclusive remedy for work-related injuries with the exception of intentional injury.”). Under Middleton’s intentional-injury exception, an injured employee may pursue common law remedies for the intentional torts committed by his employer if he can establish the employer’s specific intent to inflict injury. Escobedo, 603 S.W.3d at 125; Reed Tool, 689 S.W.2d at 406; see Berkel & Co. Contractors, Inc. v. Lee, 612 S.W.3d 280, 285 (Tex. 2020). As such, to prevail on an intentional-injury claim, the injured employee must establish that his employer intended for, or believed that, its actions were substantially certain to result in injury to the employee. Berkel, 612 S.W.3d at 285; Escobedo, 603 S.W.3d at 125; Reed Tool, 689 S.W.2d at 406.

Because the present case is before us on a plea to the jurisdiction, we look to Appellants’ pleadings and determine only whether sufficient facts were alleged to affirmatively bring their claims within the trial court’s subject-matter jurisdiction. In their first amended petition, the “operative pleading” below, Appellants alleged, with respect to the rollover incident, that “Basic Energy knew that it was subjecting its truck drivers to fatigue by virtue of requiring them to drive excessive hours and Basic Energy believed that [these] injury-producing events were substantially certain to result therefrom, especially when traversing poorly-maintained dirt roads such as the roadway at issue.” Regarding the post-rollover incidents at the hospital, Appellants alleged that Basic Energy, through its agent (Garcia), pressured hospital staff to withhold medical care from Pedro and that “with respect to said withholding and premature release, Basic Energy desired at all relevant times to cause the consequences (including the injuries to Pedro and Angie ...), or alternatively, Basic Energy believed at all relevant times that said consequences are [sic] substantially certain to result from said withholding and premature release.”

Because Appellants’ operative pleading alleged that Appellee believed that its conduct was substantially certain to result in Pedro’s injuries and Angelina’s loss of consortium, we find that Appellants’ pleaded claims fall within the purview of the intentional-injury exception to the Act’s exclusive-remedy provision. Therefore, Appellants’ factual allegations affirmatively demonstrate that the trial court has subject-matter jurisdiction over these claims.

B. Failure to Exhaust

Appellee also asserts that the Act deprives the trial court of subject-matter jurisdiction over Appellants’ pleaded claim with respect to the post-rollover events that occurred at the hospital in Odessa. Specifically, Appellee characterizes this pleaded claim as a dispute over medical benefits and argues that Appellants’ post-rollover claims are barred by the Act because Appellants failed to comply with the Labor Code’s medical dispute resolution procedures and exhaust their administrative remedies. See LAB. § 413.031(k)–(k-1) (West Supp. 2020). Appellee’s reliance on this statute is misplaced.

The Labor Code provision advanced by Appellee is only applicable to medical benefit disputes and medical fee disputes. See id. In this case, Appellants have alleged neither. Therefore, the Labor Code’s medical dispute resolution procedures and exhaustion requirements would not be triggered.

Instead, Appellants alleged that Garcia’s undue influence, and the pressure he exerted on hospital personnel to withhold medical care for Pedro, ultimately resulted in further injury to Pedro. Appellants further alleged that Garcia’s post-rollover conduct was “not job-related and [was] separate from the event for which a workers[’] compensation claim was filed and the[se] [post-rollover] acts produced an independent injury separate from the injuries for which any workers[’] compensation claim was filed.” Appellants pleaded an intentional-injury claim, alleging that Garcia’s post-rollover affirmative conduct resulted in an independent injury to Pedro. Therefore, Appellants’ factual allegations affirmatively demonstrate that the trial court has subject-matter jurisdiction over this claim.

C. Election of Remedies

Finally, although the Act’s exclusive-remedy provision does not exempt intentional-injury claims, the Act also does not expressly exclude workers’ compensation coverage for injuries that result from an employer’s intentional tort. Medina v. Herrera, 927 S.W.2d 597, 600 (Tex. 1996). In fact, an injured employee’s receipt of workers’ compensation benefits and his pursuit of common law damages from his employer for the same intentional injury are mutually exclusive remedies. Id. Here, Appellee argues that Pedro’s receipt of workers’ compensation benefits divests the trial court of subject-matter jurisdiction over Appellants’ present claims. Appellee submits that Appellants’ intentional tort claims are barred as a matter of law because Pedro elected to file for and receive workers’ compensation benefits; therefore, Pedro’s “election” deprives the trial court of subject-matter jurisdiction over Appellants’ claims. We disagree.

“The doctrine of ‘election of remedies’ is an affirmative defense that, under certain circumstances, bars a person from pursuing two inconsistent remedies.” Id. (citing Bocanegra v. Aetna Life Ins. Co., 605 S.W.2d 848, 850–52 (Tex. 1980)). However, whether Appellee can establish this affirmative defense to Appellants’ claims does not bear on the trial court’s subject-matter jurisdiction over the case.3 We additionally note that, under Reed Tool, an injured employee’s acceptance of workers’ compensation benefits does not bar an employee-spouse’s derivative claim against the employer for intentional impairment of consortium because the employee-spouse’s own claim for intentional injury is not excluded by the Act. Reed Tool Co. v. Copelin, 610 S.W.2d 736, 740 (Tex. 1980) (holding that wife’s derivative claim of negligent impairment of consortium was barred by husband’s workers’ compensation agreement but that her action for intentional impairment of consortium was not); see also Reed Tool, 689 S.W.2d at 407–08 (holding that summary judgment in wife’s action for intentional impairment of consortium was proper because wife could not establish employer’s requisite intent to injure).

Here, because Appellants’ claims are not within the Texas Department of Insurance’s exclusive jurisdiction and because Appellee’s election of remedies defense is not an impediment to the trial court’s exercise of subject-matter jurisdiction over the case, we hold that the trial court’s determination that it lacked subject-matter jurisdiction over Appellants’ claims and its order granting Appellee’s plea were erroneous. Accordingly, we sustain Appellants’ sole issue on appeal.

IV. This Court’s Ruling

Appellants pleaded sufficient facts to affirmatively show that the trial court has subject-matter jurisdiction over their asserted claims. Therefore, we reverse the order of the trial court and remand the cause to the trial court for further proceedings.

Footnotes

1

Appellants argue that affirmative defenses may not be raised by a plea to the jurisdiction. Although the Texas Supreme Court and some of our sister courts have generally adopted this premise, see State v. Lueck, 290 S.W.3d 876, 880 (Tex. 2009); Schmitz v. Denton Cty. Cowboy Church, 550 S.W.3d 342, 361 n.22 (Tex. App.—Fort Worth 2018, pet. denied); Dallas Cty. v. Cedar Springs Invs. L.L.C., 375 S.W.3d 317, 321 (Tex. App. —Dallas 2012, no pet.); Univ. of Tex. Med. Branch at Galveston v. Barrett, 112 S.W.3d 815, 817 (Tex. App.—Houston [14th Dist.] 2003), aff’d, 159 S.W.3d 631 (Tex. 2005); Martinez v. Val Verde Cty. Hosp. Dist., 110 S.W.3d 480, 484–85 (Tex. App.—San Antonio 2003), aff’d, 140 S.W.3d 370 (Tex. 2004); Tex. Dep’t of Mental Health v. Olofsson, 59 S.W.3d 831, 833 (Tex. App.—Austin 2001, pet. dism’d); Anders v. Weslaco Indep. Sch. Dist., 960 S.W.2d 289, 292 (Tex. App.—Corpus Christi–Edinburg 1997, no pet.), the application of this principle is not necessary to our disposition of Appellants’ issue on appeal.

2

We note that Appellee also filed a motion for summary judgment challenging the merits of Appellants’ pleaded claims on the same grounds; however, this motion was never presented to the trial court for a ruling.

3

In their briefs, the parties argue whether Appellee has established the elements of its election-of-remedies defense. Because the only issue before us is whether the trial court has subject-matter jurisdiction over the case, our review on appeal does not consider that merits determination.

Court of Appeals of Texas, Fort Worth.

EMILIANO MEDRANO, Appellant

v.

KERRY INGREDIENTS & FLAVOURS, INC., Appellee

No. 02-20-00247-CV

|

Delivered: April 8, 2021

On Appeal from the 67th District Court

Tarrant County, Texas

Trial Court No. 067-309764-19

Before Birdwell, Bassel, and Womack, JJ.

Memorandum Opinion by Justice Birdwell

MEMORANDUM OPINION

Wade Birdwell Justice

Appellant Emiliano Medrano appeals the dismissal of his personal injury claims. We reverse and remand.

Medrano had been working for appellee Kerry Ingredients & Flavours, Inc. for four months when his supervisor asked him to work the conveyor belt for the first time.1 Medrano alleged that he was not trained to operate the belt or provided with safety gear. According to Medrano, Kerry was aware “that the conveyor belt consistently had mishaps that only trained operators would know about.” Unfortunately, Medrano fell victim to such a mishap: his hand became caught in the conveyor. He was taken to the hospital, but doctors could not save his ring finger.

Medrano sued Kerry on various tort theories, including negligence and gross negligence. Kerry filed an answer and a plea to the jurisdiction, asserting that Medrano’s injury in the course and scope of his employment was barred by the Texas Workers’ Compensation Act’s (the Act’s) exclusive-remedy provision. The trial court granted the plea to the jurisdiction and dismissed Medrano’s suit without prejudice.2 Medrano appeals.

In its brief, Kerry urges us to affirm on the basis that the Division of Workers’ Compensation has exclusive jurisdiction over Medrano’s suit. Kerry reasons that this is so because the exclusive-remedy defense bars Medrano’s suit.

Medrano agrees with Kerry that if the exclusive-remedy defense applies, the Division has exclusive jurisdiction over this suit. He differs with Kerry only in that he urges us to apply an exception to the exclusive-remedy defense.

But Kerry and Medrano have woven together two concepts—exclusive jurisdiction and the exclusive-remedy defense—that are not the same and should not be confused. In confusing the two, they are both incorrect on an essential point of law that is necessary to dispose of this appeal, and we are not bound by their mutual mistake: “the parties to a suit cannot concede a question of law necessary to the proper disposition of a point on appeal.” Jackson Hotel Corp. v. Wichita Cty. Appraisal Dist., 980 S.W.2d 879, 881 n.3 (Tex. App.—Fort Worth 1998, no pet.).3 We therefore begin by unweaving the two.

First, there is the Division’s exclusive jurisdiction. Under the exclusive-jurisdiction doctrine, the Legislature grants an administrative agency the sole authority to make an initial determination in a dispute. Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 221 (Tex. 2002) (op. on reh’g). The Act vests the Division with exclusive jurisdiction to determine the ultimate question of whether the claimant is entitled to workers’ compensation benefits. Am. Motorists Ins. Co. v. Fodge, 63 S.W.3d 801, 804 (Tex. 2001). This suit does not seek workers’ compensation benefits, though, and as it strikes us, the only apparent way that Medrano’s personal injury suit would potentially fall within the Division’s exclusive jurisdiction would be under Fodge. See id. The Fodge court held that because a claim for bad-faith denial of benefits depends upon the ultimate question of whether the claimant was entitled to benefits in the first place, the bad-faith issue was also subject to the Division’s exclusive jurisdiction over compensability determinations. Id.

But for two reasons, we conclude that the Division does not have exclusive jurisdiction over Medrano’s suit under Fodge. First, “the determination of whether any type of claim is within the exclusive jurisdiction of the Division depends on whether the claim is based on a claimant’s entitlement to benefits,” like the claim for bad-faith denial of benefits in Fodge depended on eligibility for those benefits. See Berry Contracting, L.P. v. Mann, 549 S.W.3d 314, 320 (Tex. App.—Corpus Christi–Edinburg 2018, pet. denied) (cleaned up) (quoting Bestor v. Serv. Lloyds Ins. Co., 276 S.W.3d 549, 553 (Tex. App.—Waco 2008, no pet.)); Pickett v. Tex. Mut. Ins. Co., 239 S.W.3d 826, 835 (Tex. App.—Austin 2007, no pet.). Medrano’s personal injury suit touches on many of the same questions that would be posed in a Division proceeding to determine whether a claimant was entitled to compensation, but the merits of his suit do not hinge on whether he is ultimately eligible for workers’ compensation benefits. See Berry Contracting, 549 S.W.3d at 320; Tex. Mut. Ins. Co. v. Sonic Sys. Int’l, Inc., 214 S.W.3d 469, 481 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) (combined appeal & orig. proceeding). There is no aspect of the personal injury suit that requires Medrano to ultimately be eligible for workers’ compensation benefits in order to prevail, unlike the claim for bad-faith denial of benefits in Fodge; just the opposite, if Medrano’s injury is eligible for workers’ compensation benefits, the exclusive-remedy defense would likely bar Medrano’s suit. See Berry Contracting, 549 S.W.3d at 321 (citing Walls Reg’l Hosp. v. Bomar, 9 S.W.3d 805, 806 (Tex. 1999) (per curiam)). Accordingly, Medrano’s claim is not “based on” his entitlement to benefits, which suggests that his suit is not subject to the Division’s exclusive jurisdiction. See id.

Second, the main subject of this appeal is the exclusive-remedy defense. That fact also supports the notion that the Division does not have exclusive jurisdiction over Medrano’s suit: “the Division’s exclusive jurisdiction ‘does not extend to all cases that touch on workers’ compensation issues. The district courts decide disputes about whether the Act’s exclusive remedy provision applies as a defense to an injured worker’s personal injury suit.’ ” Id. (quoting AMS Constr. Co. v. K.H.K. Scaffolding Hous., Inc., 357 S.W.3d 30, 38 (Tex. App.—Houston [1st Dist.] 2011, pet. dism’d)). “That is, the main subject of this appeal is an issue which falls within the jurisdiction of the district court, not the Division.” Id. We therefore reject the position that this case falls within the Division’s exclusive jurisdiction.4

Instead, we presume that the district court had jurisdiction. A Texas district court is a court of general jurisdiction. Dubai Petro. Co. v. Kazi, 12 S.W.3d 71, 75 (Tex. 2000) (op. on reh’g). For courts of general jurisdiction, the presumption is that they have subject matter jurisdiction unless a showing can be made to the contrary. Id. No party has made a contrary showing here, and thus the trial court had no basis to dismiss for want of jurisdiction.

Separate from the concept of exclusive jurisdiction, there is the exclusive-remedy defense. The Act provides that recovery of workers’ compensation benefits is the exclusive remedy of an employee covered by workers’ compensation insurance against the employer for a work-related injury sustained by the employee. Tex. Lab. Code Ann. § 408.001(a); Morales v. Liberty Mut. Ins. Co., 241 S.W.3d 514, 516 (Tex. 2007); Little v. Delta Steel, Inc., 409 S.W.3d 704, 710 (Tex. App.—Fort Worth 2013, no pet.). We have consistently recognized that the Act’s exclusive-remedy provision gives rise to an affirmative defense that is fit for a motion for summary judgment. See, e.g., Robinson v. Cox, No. 02-19-00370-CV, 2020 WL 7063289, at *1–2 (Tex. App.—Fort Worth Dec. 3, 2020, no pet.) (mem. op.); Calhoun v. F. Hall Mowing Co., No. 02-09-00459-CV, 2011 WL 167231, at *4 (Tex. App.—Fort Worth Jan. 13, 2011, no pet.) (mem. op.); Downs v. Triad Denton Hosp., L.P., No. 2-05-303-CV, 2006 WL 820408, at *1 (Tex. App.—Fort Worth Mar. 30, 2006, no pet.) (mem. op.). As an “affirmative defense or ‘plea in bar,’ ” it “operates to prohibit the assertion of a cause of action and involves the final disposition of a case.” Tex. Underground, Inc. v. Tex. Workforce Comm’n, 335 S.W.3d 670, 675 (Tex. App.—Dallas 2011, no pet.). Affirmative defenses are typically not disposed of with a motion to dismiss such as a plea to the jurisdiction; they should instead “be raised through a motion for summary judgment or proven at trial.” Id. at 675–76; see, e.g., State v. Lueck, 290 S.W.3d 876, 880 (Tex. 2009); Schmitz v. Denton Cty. Cowboy Church, 550 S.W.3d 342, 361 n.22 (Tex. App.—Fort Worth 2018, pet. denied) (mem. op. on reh’g). Thus, pursuing the exclusive-remedy defense through a plea to the jurisdiction “is problematic and not to be encouraged.” Robles v. Mount Franklin Food, L.L.C., 591 S.W.3d 158, 163 (Tex. App.—El Paso 2019, pet. denied) (quoting Briggs v. Toyota Mfg. of Tex., 337 S.W.3d 275, 281 (Tex. App.—San Antonio 2010, no pet.)).

Beyond the question of whether the Division has exclusive jurisdiction, then, Medrano’s appeal poses another set of questions that concern the merits: whether the exclusive-remedy defense applies to his case and, if so, whether Medrano qualifies for the intentional-injury exception to that defense.

However, those questions come to us in a strange posture—namely, through a dismissal without prejudice following a plea to the jurisdiction rather than a summary-judgment motion. When other courts have faced roughly analogous situations wherein the defendant has improperly used a motion to dismiss to obtain a dismissal with prejudice based on the exclusive-remedy defense, the courts have treated the resulting dismissal as though it were a summary judgment. See id. at 163–64; Briggs, 337 S.W.3d at 281. They went on to evaluate the evidence in order to determine whether the parties’ arguments regarding the exclusive-remedy defense had merit. See Robles, 591 S.W.3d at 166–68; Briggs, 337 S.W.3d at 283–85.

This practice is consistent with the general rule that even if “summary judgment procedure is not utilized when a plea in bar is asserted, the reviewing court may treat a pretrial dismissal with prejudice as a summary judgment because such dismissal has the same effect as entry of a take-nothing judgment.” In re K.M.T., 415 S.W.3d 573, 576 (Tex. App.—Texarkana 2013, no pet.) (quoting Martin v. Dosohs I, Ltd., Inc., 2 S.W.3d 350, 354–55 (Tex. App.—San Antonio 1999, pet. denied)). “In such case, the reviewing court will review the record as if summary judgment was granted to determine whether the movant satisfied the notice requirements and his burden of proof under Texas Rule of Civil Procedure 166a.” Id. (quoting Martin, 2 S.W.3d at 355).

Here, however, two circumstances preclude us from upholding the trial court’s dismissal on the merits through a summary-judgment review. First, the dismissal was without prejudice, which is not tantamount to a summary judgment. “A dismissal with prejudice is an adjudication of the parties’ rights; a dismissal without prejudice is not.” CTL/Thompson Tex., LLC v. Starwood Homeowner’s Ass’n, Inc., 461 S.W.3d 627, 630 (Tex. App.—Fort Worth 2015, pet. denied).

Second, unlike Robles and Briggs, neither party has submitted any evidence regarding the exclusive-remedy defense or an exception to that defense, such that the case would be suitable for summary-judgment-style analysis. Without any evidence, we are unable to meaningfully evaluate the merits of the parties’ arguments with respect to the exclusive-remedy defense.5

Lacking any order or evidence that would fit the summary-judgment framework, “we feel justified in not ruling upon” the merits of whether summary judgment on the exclusive-remedy defense would have been proper, “particularly since it was not substantially developed in the trial court.” See Kelley v. Bluff Creek Oil Co., 309 S.W.2d 208, 215 (Tex. 1958) (declining to rule on the merits of a plea in bar); Tex. Underground, 335 S.W.3d at 676 (concluding that a dismissal could not be upheld as a summary judgment in the absence of proper summary-judgment evidence and procedure); Walker v. Sharpe, 807 S.W.2d 442, 447 (Tex. App.—Corpus Christi–Edinburg 1991, no writ) (similar); Piper v. Thompson’s Estate, 546 S.W.2d 341, 343–44 (Tex. App.—Dallas 1976, no writ) (reversing dismissal order because without adequate notice or any evidence to support the plea under the summary-judgment rule, the order “could not be justified” through summary-judgment review). It is enough to hold that the trial court had no basis to grant a plea to the jurisdiction concerning an affirmative defense that, under these circumstances, has nothing to do with jurisdiction. We sustain Medrano’s sole issue.

Accordingly, we reverse the trial court’s judgment and remand the matter for further proceedings consistent with this opinion.

Footnotes

1

We draw these facts from Medrano’s live petition.

2

The order did not state whether the dismissal was with or without prejudice. “Where an order does not state that the case is dismissed with prejudice, it is presumed that the dismissal is without prejudice.” FAI Eng’rs, Inc. v. Logan, No. 02-20-00255-CV, 2020 WL 7252315, at *2 n.1 (Tex. App.—Fort Worth Dec. 10, 2020, no pet.) (mem. op.) (quoting In re Hughes, 770 S.W.2d 635, 637 (Tex. App.—Houston [1st Dist.] 1989, no writ)).

3

See also Avasthi & Assocs., Inc. v. Banik, 343 S.W.3d 260, 266–68 (Tex. App.—Houston [14th Dist.] 2011, pet. denied) (Frost, J., dissenting) (collecting cases and laying out a compelling argument as to why parties’ concessions concerning the governing law do not bind an appellate court).

4

For the same reason, we reject Kerry’s argument that Medrano’s suit is faulty because he failed to exhaust his administrative remedies. “Typically, if an agency has exclusive jurisdiction, a party must exhaust all administrative remedies before seeking judicial review of the agency’s action.” See Subaru, 84 S.W.3d at 221. A party is not required to exhaust administrative remedies when the legislature has not vested exclusive jurisdiction in an agency to make an initial determination in a dispute. Harris Cty. Fresh Water Supply Dist. No. 61 v. FWO Dev., Ltd., 396 S.W.3d 639, 647 (Tex. App.—Houston [14th Dist.] 2013, pet. denied); see Cash Am. Int’l Inc. v. Bennett, 35 S.W.3d 12, 15–18 (Tex. 2000) (concluding that because an agency did not have exclusive jurisdiction, the plaintiff “was not required to exhaust her remedies under the Act before filing suit”); Butnaru v. Ford Motor Co., 84 S.W.3d 198, 207–08 (Tex. 2002) (op. on reh’g) (same).

5

Nor could the trial court’s order be upheld as a summary judgment on the pleadings. See Liberty Mut. Ins. Co. v. City of Fort Worth, 524 S.W.2d 743, 746 (Tex. App.—Fort Worth 1975, writ dism’d w.o.j.). A plaintiff may plead itself out of court by alleging facts that affirmatively negate its cause of action. Slaven v. Livingston, No. 02-17-00266-CV, 2019 WL 983693, at *5 (Tex. App.—Fort Worth Feb. 28, 2019, no pet.) (mem. op.). “In general, it is improper to grant summary judgment on a deficient pleading’s failure to state a cause of action when the deficiency can be attacked through a special exception.” Id. “But a pleading-deficiency summary judgment may be proper if a party has had an opportunity by special exception to amend and fails to do so or if it files an additional defective pleading.” Slaven, 2019 WL 983693, at *5; see Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994). “If a pleading deficiency cannot be cured by an amendment, summary judgment may also be proper.” Slaven, 2019 WL 983693, at *5. Here, Medrano’s live petition does not allege facts that negate his cause of action, no special exceptions appear in the record, and the petition does not contain any internal pleading defects that are incurable.

Court of Appeals of Texas, El Paso.

Hugo A. MARTINEZ, Dolores Ramiriz, Individually and on Behalf of the Estate of Javier Garcia, Jr. Deceased, Javier Mayagoitia, Sr., Individually and as Independent Administrator of the Estate of Javier Mayagoitia, Jr. Deceased, Julieta Taylor, Osman Martinez and Jeanne Chavez, Individually and as Next Friend and Guardian of M.C., a Minor Child, Appellants,

v.

David BOONE, Individually, David Boone Oilfiled Consulting, Inc. and Cameron International Corporation a/k/a Cameron Systems Corporation, Appellees.

No. 08-19-00086-CV

|

March 29, 2021

Appeal from the 143rd District Court of Reeves County, Texas (TC# 19-02-22824-CVR)

Attorneys & Firms

Maxey Marie Scherr, James F. Scherr, Jeffrey B. Pownell, El Paso, Brittany Lopez, for Appellants Hugo A. Martinez and Dolores Ramirez, Individually and on Behalf of the Estate of Javier Garcia, Jr., Deceased.

Jonathan S. Stoger, Fredrick Mandell, Bill Weinacht, Pecos, for Appellants Javier Mayagoitia and Julieta Taylor.

Fredrick Mandell, Santiago D. Hernandez, San Antonio, for Appellants Chavez, Jeanne.

Piero Garcia, Carlos Alberto Leon, Sugar Land, Kirk L. Pittard, Dallas, Dana Brooke Levy, for Appellants Martinez, Osman.

Carlos Rincon, Oscar A. Lara, El Paso, for Appellees David Boone, Individually and David Boone Oilfield Consulting, Inc.

Lucas T. Elliot, Harper Estes, Midland, Thomas F. Allen Jr., Dallas, for Appellees Cameron International Corporation a/k/a Cameron Systems Corporation.

Before Rodriguez, C.J., Palafox, and Alley, JJ.

OPINION

YVONNE T. RODRIGUEZ, Chief Justice

Traditional summary judgment motions and no-evidence summary judgment motions were granted against Appellants by the trial court. In four issues, Appellants assert fact issues exist as to whether Appellees (“Boone” and “Cameron”) are liable under the doctrine of respondeat superior, general agency principles, and direct negligence, thereby precluding traditional and no-evidence summary judgment.

BACKGROUND

Factual Background

John Mueller (“Mueller”) was involved in an auto collision resulting in several fatalities. At the time of the collision, Mueller was returning to a remote oil wellsite he was working on named the “Blue Marlin.” The details of the collision are not at issue here. We address only the question of whether Boone or Cameron is liable for the conduct of Mueller if he were found negligent in causing the collision.

At the end of his shift on June 8, 2015, Mueller, along with Cameron’s lead man, Valadez, traveled to Pecos, Texas for dinner. After dinner, Mueller stopped at a local Wal-Mart to purchase water and other supplies for the wellsite. He then drove back to the wellsite to sleep for the night, and as we describe below, to learn if additional work would be available the next day. En route to the wellsite, he was involved in the collision giving rise to this lawsuit.

The wellsite is located about sixty-five miles from the nearest town, Pecos. There are no nearby facilities for water, food, or fuel. A trip to Pecos is a 130-mile round-trip that takes three hours. ConocoPhillips owns the oil and gas lease of the well. ConocoPhillips contracted with Cameron to conduct “flowback well testing.” The process involves analyzing the output of a well to determine the output quantity of water, gas, and oil. The output is sent to a fracking tank where sand and hydraulic fracturing fluids are removed, and the remaining oil, gas, and water levels are measured at various time increments.

To obtain workers for the Blue Marlin, Cameron asked Boone to provide labor for the flowback testing. Boone can best be described as a placement agency that provides laborers to companies. Cameron contacted Boone and asked for two well test hands. A scheduler for Boone then contacted Mueller, who was available for the Blue Marlin job.

Procedural Background

Appellants, the estate representatives and wrongful death beneficiaries for Javier Mayagoitia and Javier Garcia, along with Hugo and Osman Martinez sued Mueller, Boone, Cameron, and ConocoPhillips.

Appellants alleged Boone and Cameron were both vicariously and directly liable for Mueller’s conduct as we describe below. Boone and Cameron filed traditional and no-evidence motions for summary judgment, which the trial court granted. This appeal followed.

DISCUSSION

Appellants assert four issues on appeal. Issue One claims the trial court erred by granting the summary judgment motions of Boone and Cameron. See Malooly Bros. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970)(allowing general issue challenging summary judgment). In Issue Two, Appellants contend the summary judgment evidence raises fact issues as to whether Boone and Cameron are vicariously liable under the doctrine of respondeat superior. Issue Three asserts there are fact issues as to whether Boone and Cameron are vicariously liable under general agency principles. Last, Issue Four contends fact issues exist concerning the direct negligence of Boone and Cameron.

Standard of Review

We review a trial court’s decision to grant summary judgment de novo. Travelers Insurance Company v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). A party is permitted to move for a no-evidence summary judgment “without presenting summary judgment evidence,” but the moving party must “state the elements as to which there is no evidence.” TEX.R.CIV.P. 166a(i); Wade Oil & Gas, Inc. v. Telesis Operating Company, Inc., 417 S.W.3d 531, 540 (Tex.App.—El Paso 2013, no pet.). A no-evidence motion for summary judgment is essentially a pretrial directed verdict, and we apply the same legal sufficiency standard of review as we would for a directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003).

Under this standard, a no-evidence motion for summary judgment should be granted when: (1) there is an absence of evidence of a vital fact; (2) the court is barred by rules of evidence or law to give weight to the only evidence provided; (3) the evidence offered is no more than a mere scintilla; or (4) the evidence presented conclusively establishes the complete opposite of the vital fact. Id. at 751. More than a scintilla of evidence exists when reasonable and fair-minded individuals could differ in their conclusions. Id. Stated otherwise, less than a scintilla of evidence is when the evidence is so weak as to do no more than create a mere surmise or suspicion of material fact. Wade Oil & Gas, 417 S.W.3d at 540.

The moving party carries the burden of showing there is no genuine issue of material fact and is entitled to judgment as a matter of law. Diversicare General Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005). Once the movant establishes its right to summary judgment, the burden then shifts to the non-movant to present evidence raising a genuine issue of material fact, thereby precluding summary judgment. See City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex. 1979). We review the evidence in the light most favorable to the non-movant. King Ranch, 118 S.W.3d at 751. The motion must be granted unless the non-movant produces summary judgment evidence raising a genuine issue of material fact. TEX.R.CIV.P. 166a(i). When, as here, the trial court’s order “does not specify the grounds for its ruling, summary judgment must be affirmed if any of the grounds on which judgment was sought are meritorious.” Bustamante v. Miranda & Maldonado, P.C., 569 S.W.3d 852, 857 (Tex.App.—El Paso 2019, no pet.).

Law

Generally, an employer is insulated from liability for the tortious acts of its independent contractors. Painter v. Amerimex Drilling I, Ltd., 561 S.W.3d 125, 131 (Tex. 2018)(citing Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788, 796 (Tex. 2006)). However, the common-law doctrine of respondeat superior, or vicarious liability, is an exception to this general rule. Painter, 561 S.W.3d at 131. Under the doctrine of respondeat superior, the “liability for one person’s fault may be imputed to another who is himself entirely without fault solely because of the relationship between them.” St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 540 (Tex. 2002)(plurality opinion). The “doctrine has been explained as ‘a deliberate allocation of risk’ in line with ‘the general common law notion that one who is in a position to exercise some general control over the situation must exercise it or bear the loss.’ ” Painter, 561 S.W.3d at 130-31.

A. Vicarious Liability for the Acts of “Employees”

An employer-employee relationship is an agency principle that gives rise to vicarious liability. Id. at 131. The first step is determining whether an employer-employee relationship existed. Id. Appellants, as the moving parties, have the burden of proving that at the time of the negligent conduct, Mueller was (1) an employee, and (2) acting in the course and scope of his employment. Id.

In examining employment status, the principal’s right to control over the agent’s actions is the “supreme test” for determining the existence of an employee-employer relationship. Golden Spread Council, Inc. No. 562 of Boy Scouts of Am. v. Akins, 926 S.W.2d 287, 290 (Tex. 1996); Painter, 561 S.W3d at 132 (“the employer’s overall right to control the details of the [agent’s] work is what principally distinguishes an employee from an independent contractor.”). Employee in this context is defined in the pattern jury charge as follows:

[Employee is] a person in the service of another with the understanding, express or implied, that such other person has the right to direct the details of the work and not merely the result to be accomplished.

Agency and Special Relationships, ¶ 10.1, Tex. Pattern Jury Charge (2018). The test for determining whether a worker is an employee or an independent contractor is whether the employer has the right to control the progress, details, and methods of operations of the employee’s work. Thompson v. Travelers Indem. Co. of Rhode Island, 789 S.W.2d 277, 278 (Tex. 1990).

The Texas Supreme Court has provided examples of the type of control normally exercised by an employer: “when and where to begin and stop work, the regularity of hours, the amount of time spent on particular aspects of the work, the tools and appliances used to perform the work, and the physical method or manner of accomplishing the end result.” Id. at 279. We have also described the attributes of an employer as including, “the right to hire and fire, the obligation to pay wages and withhold taxes, the furnishing of tools, and most of all[,] the power to control the details of the worker’s performance.” Painter v. Sandridge Energy, Inc., 511 S.W.3d 713, 724 (Tex.App.—El Paso 2015, pet. denied); see also Thompson, 789 S.W.2d at 278; Newspapers, Inc. v. Love, 380 S.W.2d 582, 585–90 (Tex. 1964). An employer essentially must control the ends sought to be accomplished, and the means and details of its accomplishment. Thompson, 789 S.W.2d at 278.

The second step requires determining whether an employee was acting in the course and scope of employment. Painter, 561 S.W.3d at 131. Course and scope of employment is determined objectively and turns on “whether the employee was performing the tasks generally assigned to him in furtherance of the employer’s business. That is, the employee must be acting with the employer’s authority and for the employer’s benefit.” Id. at 138-39.

B. Vicarious Liability for the Acts of Contractors

Another situation giving rise to vicarious liability is when one contracting party controls the details of another contracting party’s work. A principal is generally not liable for the conduct of independent contractors. Lee Lewis Const., Inc. v. Harrison, 70 S.W.3d 778, 783 (Tex. 2001) (“Ordinarily, a general contractor does not owe a duty to ensure that an independent contractor performs its work in a safe manner.”). However, an exception to the independent contractor rule applies when a general contractor retains some control over the manner in which the independent contractor performs, creating a duty of care. Id.; see also Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985)(adopting Restatement (Second) of Torts § 414 (1977), which imposes a duty on a general contractor who retains control over any part of an independent contractor’s work). The general contractor’s duty of care is commensurate to the control retained over the independent contractor’s work. Lee Lewis Const., 70 S.W.3d at 783. The right to control must also extend to the specific activity from which the injury arose. Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d 354, 357 (Tex. 1998)(requiring a “nexus between an employer’s retained supervisory control and the condition or activity that caused the injury”)[Emphasis in orig.].

The right to control can arise by way of a contractual agreement, or through the exercise of actual control on the worksite. Tovar v. Amarillo Oil Co., 692 S.W.2d 469, 470 (Tex. 1985)(per curiam)(under drilling contract, oil company controlled part of subcontractor’s work and therefore owed a duty of care to oil field worker); Coastal Marine Serv. of Tex., Inc. v. Lawrence, 988 S.W.2d 223, 226 (Tex. 1999)(emphasizing that there must be actual control, and the mere “possibility of control is not evidence of a ‘right to control’ actually retained or exercised.”).

A worksite injury-producing collision can implicate several of the layered contractual relationships that commonly exist in the oil field context. See Painter, 561 S.W.3d at 136 (holding as to employer, summary judgment evidence presented fact question on whether employee, who was transporting work crew to company providing housing, was in the course and scope of employment); Sandridge Energy, Inc., 511 S.W.3d at 716 (holding that out of the very same accident, non-employer contractor was not vicariously liable for tortious conduct because it did not control any aspect of the injury causing event).

Accordingly, in the case at hand, we must determine if issues of material fact exist as to whether Mueller was (1) an employee of either Boone or Cameron, and (2) within the course and scope of his employment at the time of the accident, thereby subjecting the Appellees to vicarious liability for his alleged negligence.

SUMMARY JUDGMENT AS TO CAMERON

A. Was Mueller Cameron’s Employee?

Appellants first assert Mueller was Cameron’s employee by way of contractual agreement, and through evidence of their control over the details of his work at the well. Cameron disagrees, denying Mueller was ever its employee. Cameron further contends, even if Mueller was an employee during his shift on June 8, he was released from employment and was not in the course and scope of employment at the time of the accident. We address each question in turn.

1. Was Mueller an employee of Cameron through the MSA?

A contractual master service agreement (“MSA”) was executed between Cameron and ConocoPhillips. The MSA provides in pertinent part:

[Cameron] shall be fully responsible for and shall have exclusive direction and control of its agents, employees and subcontractors and shall control the manner and method of carrying out operations. All persons engaged by [Cameron] to perform work under this Agreement (including without limit any contract laborers, leased employees or workers furnished to [Cameron] by a staff leasing agency or company) shall be deemed to be employees, and not subcontractors, of [Cameron] for all purposes.

Cameron does not dispute the applicability of the clause or its clear wording. Rather, Cameron argues this Court cannot consider an upstream contract between two parties to define the downstream relationship of a non-signatory to the agreement. In support of its argument, Cameron cites to Gonzalez v. VATR Const. LLC, 418 S.W.3d 777, 786 (Tex.App.—Dallas 2013, no pet.); Cardona v. Simmons Estate Homes I, LP, No. 05-14-00575-CV, 2016 WL 3014792, at *5 (Tex.App.—Dallas May 25, 2016, no pet.)(mem. op.); and Wood v. Phonoscope, Ltd., No. 01–00–01054–CV, 2004 WL 1172900, at *10 (Tex.App.—Houston [1st Dist.] May 27, 2004, no pet.)(mem. op.).

These cases are inapplicable. Although all discuss the duties owed between contracting parties at the work site, the aforementioned cases govern whether a contract creates a duty from one employer to another, as opposed to the employment status of a wrongdoer for purposes of vicarious liability. The Texas Supreme Court has analyzed the contractual terms that define the relationship between parties in the construction context, even when the person described is a non-signatory to the agreement. See Exxon Corp. v. Perez, 842 S.W.2d 629, 630 (Tex. 1992).

Appellants contend the MSA “unequivocally provides that anyone engaged to perform work under the MSA shall be deemed Cameron’s employee ‘for all purposes[,]’ ” and thus, “the MSA resolves the issue [of Mueller’s employment status] as a matter of law.” We recognize the merits of Appellants’ argument, but additional considerations must be addressed.

In Exxon—before reaching the Texas Supreme Court—the San Antonio Court of Appeals held a contract between Exxon and the plaintiff’s employer as determinative of the plaintiff’s employment status. Exxon, 842 S.W.2d at 630. The Texas Supreme Court reversed finding the record was replete with evidence of Exxon’s right to control over the plaintiff—a non-signatory to the agreement—that the court of appeals erred in concluding the contract between the parties alone was conclusive of the plaintiff’s employment status. Exxon, 842 S.W.2d at 630 (finding, irrespective of a contractual agreement between the employer and the plaintiff’s employer, “[w]here the right of control prescribed or retained over an employee is a controverted issue, it is a proper function for the fact-finder to consider what the contract contemplated or whether it was even enforced.”). As in Exxon, Mueller is also a non-signatory to the MSA between Cameron and ConocoPhillips. Moreover, as in Exxon, the summary judgment record is also replete with conflicting evidence of Cameron’s right to control over Mueller. Accordingly, we find the MSA, coupled with the conflicting evidence of Cameron’s right to control, contributes to finding a fact issue of Mueller’s employment status as to Cameron.

2. Was Mueller an employee of Cameron based on a right to control analysis?

Further, Appellants assert they can establish Mueller was an employee through the “right to control” that Cameron exercised over Mueller. The potential for vicarious liability in this context is premised on the relationship between the wrongdoer and the party to whom liability is imputed. Painter, 561 S.W.3d at 132. The defining characteristic is the principal’s “right to control the agent’s actions undertaken to further the principle’s objectives.” Id., (citing FFP Operating Partners, LP v. Duenez, 237 S.W.3d 680, 686 (Tex. 2007)).

To differentiate an employee from an independent contractor, the right to control is measured by examining the Limestone factors: (1) the independent nature of the worker’s business; (2) the worker’s obligation to furnish necessary tools, supplies, and materials to perform the job; (3) the worker’s right to control the progress of the work, except about final results; (4) the time for which the worker is employed; and (5) the method of payment, whether by unit of time or by the job. Limestone Products Distrib., Inc. v. McNamara, 71 S.W.3d 308, 312 (Tex. 2002).

a. Independent nature of the worker’s business

The first Limestone factor asks how independently the worker acted in the workplace. An independent contractor generally has the freedom to “work in his own way.” Koch Ref. Co. v. Chapa, 11 S.W.3d 153, 155 (Tex. 1999). As Mueller describes his role, he was “there to assist [Cameron’s] hand that was running this test separator” and Cameron’s hand was Juan Valadez. Cameron’s “flowback” operations supervisor, Mike Amigh, described Valadez as the lead man and Mueller as a “helper.” As such, Amigh agreed Valadez had the right to control all of the details of the work Mueller was performing. However, Amigh stated while Valadez had the authority to instruct Mueller what to do, Valadez did not instruct Mueller how to do it.

According to Valadez, he was responsible for everyone working at the Blue Marlin. Valadez, however, also testified Mueller was “his own independent contractor. He’s his own boss.... He’s not an actual employee. He’s his own employee. He’s his own boss.” As Valadez described, because Mueller already “[knew] the job tasks,” Valadez did not need to give Mueller additional training or detailed instructions. Valadez only provided Mueller with general instructions, such as, “[h]ey, dump the sand traps” and “[c]heck the plug catcher with me.”

Mueller’s deposition testimony was less clear and conflicting. At one point in his testimony, Mueller stated Valadez was his point of contact and supervisor: Valadez “told me what I was going to do.” Mueller stated he was working for Cameron and was under Cameron’s control. However, in response to another question, Mueller stated Valadez did not have control over his activities, and that it was ConocoPhillips’ “company man” who told him what to do. For instance, if Mueller were to have been injured on the job, Mueller stated he would have reported his injury to ConocoPhillips’ company man because that is who he was working for and ConocoPhillips was “controlling” him.

The summary judgment record also contains a written job safety analysis that Cameron prepared for Mueller. Appellants contend “Mueller learned how to perform his work solely through on-the-job training that Cameron (and Boone) provided.” Mueller testified he was required to attend a Cameron specific training about a month before the job that covered issues ranging from aerial forklifts, to rigging and lifting procedures. Cameron required Mueller to complete a form titled, “Employee Info,” and Cameron also administered various written tests, assessing Mueller’s knowledge of the training provided. One form explicitly refers to Mueller as an “employee.”

b. Tools and equipment

Cameron provided the specialized equipment needed for well flow testing, while Mueller provided his own hand tools. Cameron supplied the separator, manifold, sand traps, flare stack, and other specialized equipment. Mueller, on the other hand, provided his own sledgehammer, pipe wrench, laptop to report test data, and phone to create an internet hotspot to email test data. It is important to emphasize that without the specialized equipment Cameron provided, Mueller would have been unable to perform the job for which he was hired; the entire operation could not have been performed without the specialized equipment used to separate the sand and fracking fluids from the well output.

c. Worker’s right to control progress

Mueller worked a specific shift set by Cameron, and Mueller therefore had no control over his own schedule. The progress of the work appears to have been dictated in part by the outflow of the well. Valadez assigned Mueller specific tasks to perform, which appears to have been time sensitive, such as obtaining the scheduled measurements of water, oil, and gas that ConocoPhillips required. Cameron set the time and dates Mueller was to work, provided Mueller with on-site lodging, and provided direct management over the day-to-day operations. Mueller was assigned to assist Valadez—Cameron’s lead on-site operator. Mueller reported to Valadez, who supervised and controlled his work.

d. Time for which the worker is employed

According to Mueller’s invoicing and Cameron’s documentation, Mueller worked four days on the job: June 5 through June 8. Mueller worked a 12-hour shift, starting generally at 6:00 a.m. running to 6:00 p.m. He shared the trailer Cameron provided with another worker who worked the corresponding 12-hour night shift.

The length of well testing varies by job, with some tests lasting forty days, and others as few as three days. This was not Mueller’s first job for Cameron. Mueller testified he did not work exclusively for Cameron; Boone provided Mueller work with companies other than Cameron.

e. Method of payment

Cameron did not pay Mueller directly. Rather, Boone paid Mueller a flat daily rate. Taxes were not withheld from his pay and he was sent a 1099 IRS form at the end of the year. Mueller and his wife established their own corporation, H&J Oilfield Consulting, Inc., (“H&J”). H&J submitted an invoice for each day’s work to Boone. Boone, in turn, billed Cameron, which billed ConocoPhillips.

When the record shows no dispute regarding the controlling facts and only one reasonable conclusion can be inferred, the question of whether one is an “employee” or an “independent contractor” is a question of law. Durbin v. Culberson County, 132 S.W.3d 650, 659 (Tex.App.—El Paso 2004, no pet.). We cannot conclude that only one reasonable conclusion can be inferred. Due to the sharply conflicting evidence and balancing of the Limestone factors, we conclude Appellants have raised a fact issue as to the right to control Mueller by Cameron.

3. Does Cameron’s control of Mueller establish vicarious liability?

Appellants also suggest they can establish vicarious liability through the level of control that Cameron exercised over Mueller even as an independent contractor. We take this to mean that even if the level of control is insufficient to make Mueller an employee, it may establish that their level of control of Mueller still exposes Cameron to liability under a Redinger type theory for the failure to act reasonably in exercising the control that it did. Redinger v. Living, Inc., 689 S.W.2d 415 (Tex 1985). The problem with this theory is that if Mueller is viewed only as a contractor—and not an employee—then no liability attaches to Cameron unless it controlled the specific activity from which the injury arose. Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d 354, 357 (Tex. 1998)(requiring “nexus between an employee’s retained supervisory control and the condition or activity that caused the injury”)[Emphasis in orig.]; Sandridge Energy, Inc., 511 S.W.3d at 723 (affirming summary judgment because plaintiff presented no evidence that Sandridge actually dictated control any details of the transportation of the workers when the car accident occurred). From this record, there is no evidence Cameron in any way controlled the injury causing conduct at issue here. It provided no rules on driving, it did not regulate when workers should be on the road, nor even which town (and hence the route taken) if a worker went to town. We find Cameron is not liable under a Redinger type theory. Redinger, 689 S.W.2d at 418-419.

4. Was Mueller released from employment after his last shift?

The summary judgment record is also particularly conflicting on this question. Cameron contends Mueller was not an employee at the time of the collision. Cameron argues that certainly by shift’s end, Mueller was released, was no longer its employee and was free to return home. Although there was no guarantee of additional work, the evidence is conflicting as to whether Mueller was released from employment or was on standby for additional work at the time of the collision.

Mueller testified that at around 5:00 p.m. on June 8—the day of the accident—a company representative of ConocoPhillips told Mueller he was “released” from the job. Valadez confirmed this and testified he and Mueller were told they were “released” before the collision occurred. Based on the well test results, ConocoPhillips shut the well in, and consistent with this testimony, the invoiced billed to Cameron shows Mueller worked from June 5 to June 8, but not on June 9.

Mueller, however, contends after he was released for the day on June 8, he was informed of the possibility of ConocoPhillips having additional work for him, but the ConocoPhillips’ foreman would not know for certain until the following day. Mueller testified the ConocoPhillips’ representative told him to stay until morning when he would have confirmation. Appellants support this contention with the following evidence: ConocoPhillips was planning to “drillout” the Blue Marlin. Valadez was called back to the well on June 9 to help with placing coils. Valadez would need one additional well test hand to assist him with that job if the coils had arrived by that time. Cory Johnson, the other Boone worker on site, recalled that after he was informed of his release on June 8, he was asked to remain standby on site:

Q. Let’s get that clear. Tell-- Tell me about that conversation that you were being requested to stay while they figured out what was going on.

A. I feel like that was with a Cameron hand, maybe Juan Valadez. I feel like he was the one that may have said that, that they wanted to keep the same four guys out there that had been doing the job.

...

Q. All right. So going back to the night of June 8th, even when you were told that the task of the well testing-- Let me restate it. On June 8th, after you--you’re told that the well is shut in, was it your understanding that you were still going to be kept on-site and continuing to do work out there?

...

Q. Okay. So you expected to continue staying in that trailer and continuing to work June 9th and June 10th or whatever other time. Is that correct?

A. Yes.

Q. Okay. Until the collision occurred can you tell us whether or not you expected to continue working at this well site?

A. Yes. Before the-- The whole time, even after the collision, I thought that we would be back on this job. You know, that’s twelve hours away from my house, so they asked us to stay. I was told I would get standby and that in a few days that job would start back up. They just needed to make their mind up what they were going to do with that well.

Q. And who told you you would be paid standby?

A. Juan Valadez. [Objections omitted].

Cory Johnson indeed billed Boone for two days of standby—for June 9 and June 10. Cameron, however, later declined to pay those charges.

Juan Valadez’s testimony corroborates Cory Johnson’s recollection:

Q. ---Mr. Mueller were told by ConocoPhillips y’all were on standby, right?

A. Yes.

Q. And there was an expectation that compensation would be paid?

A. Starting the next day.

Q. For both of you?

A. Yes.

Q. And that you-all would be moving to some other job site?

A. For Conoco.

Q. And—and that was told to you by the lead man-company man out at the job site even before you left the job site on June 8th, correct?

A. Yes.

Q. And the same thing was told to Mr.—

A. No, it was told to me, I told them. [Objections omitted].

Accordingly, Valadez relayed to Mueller and Johnson, “Yeah, they’re going to pay standby. We’re all staying on location. We’re moving to the next well.” But according to Valadez, “everything went south” after the collision and the only reason the job did not continue was because of the accident.

Mueller also corroborated Valadez’s understanding and in his statement to the police. Mueller said he “went to buy groceries for the rest of the week” because the “company man asked that the Boone hands stay and not be sent home.” Mueller testified to telling the ConocoPhillips representative he would stay, but was going to go home if new work did not start quickly, because he was not “going to sit around for five days waiting to get paid.” Mueller’s view on the matter is best summarized by this statement:

I wasn’t asked to stay. I’m not going to drive all the way back to Burleson, so I wouldn’t have—I wasn’t planning leaving until that morning anyway, the next morning. So that—I could have left and they would have called somebody else in. The potential was there. I would have found out in the morning either I’m moving locations or I’m driving back to Burleson.

Accordingly, Mueller traveled to town for a meal and watched a soccer game before stopping at a Wal-Mart to re-stock—water, food, and other supplies to bring back to the wellsite—in case he was asked to stay for another job. While awaiting confirmation, Cameron asserts Mueller was not required to remain on wellsite and could have driven home or stayed at a hotel.

Based on the MSA and the right to control balancing under the Limestone factors, we recognize the evidence is sharply conflicting.1 Reviewing the evidence in the light most favorable to Appellants, we find more than a scintilla of evidence exists to create a fact issue. We find Appellants have raised a fact issue as to whether Mueller was Cameron’s employee at the time of the accident.

B. If an employee, was Mueller in the Course and Scope?

Cameron contends Mueller, having chosen to stay the night, driving to Pecos for the evening and buying groceries in case another job became available, constituted a personal errand and was outside the scope of his employment. In other words, Cameron argues, even if we conclude Mueller was in the course and scope of his employment by remaining at the wellsite the evening after his shift, or in cleaning up the trailer the next morning—as some evidence suggests he was obligated to do—or in awaiting confirmation of additional work, the collision occurred while he was driving to Pecos and away from the work premises during the commission of a personal errand, outside the scope of his employment.

For vicarious liability to attach, the subject person must both be an employee and within the course and scope of employment at the time of the underlying event. Painter, 561 S.W.3d at 138. Course and scope is determined objectively and turns on “whether the employee was performing the tasks generally assigned to him in furtherance of the employer’s business. That is, the employee must be acting with the employer’s authority and for the employer’s benefit.” Painter, 561 S.W.3d at 138-39.

The facts of Painter are instructive to the analysis at hand. In Painter, which also dealt with a remote drilling site, the employer, Amerimex, provided an off-site bunkhouse some thirty miles away from the site. Id. at 128. The contract between Amerimex and the leaseholder provided Amerimex would bill $50 per day for the driller to drive the crew from the bunkhouse to the well location. Id. While driving the crew from the site to the bunkhouse, a driller was involved in a collision resulting in multiple fatalities and injuries. Id. at 129. It was undisputed that the driller in Painter was an employee of Amerimex; the question was whether he was in the course and scope of employment while driving the crew to the bunkhouse after his shift ended. Id. The Texas Supreme Court confirmed application of the coming-and-going rule for assessing the vicarious liability of Amerimex. Id. at 137.

Under the coming-and-going rule, an “employee is generally not acting within the scope of his employment when traveling to and from work.” Id. at 138-39. However, an exception to that rule applies “when an employee has undertaken a special mission at the direction of his employer or is otherwise performing a service in furtherance of his employer’s business with the express or implied approval of his employer.” Id. at 136 [Internal quotes and brackets omitted].

For example, in Janak v. Texas Emp. Ins. Ass’n, the court found injuries arising from a traffic collision were within the course and scope of employment even though the drilling crew, while en route to a well site, took a diversion to obtain water and ice needed for the day’s labor. 381 S.W.2d 176, 181-82 (Tex. 1964). Moreover, in Chevron U.S.A., Inc. v. Lee, we found the same exception applicable when an employer required its employee to drive to a seminar on what would otherwise have been the employee’s day off. 847 S.W.2d 354, 355 (Tex.App.—El Paso 1993, no writ). Conversely, in Pilgrim v. Fortune Drilling Co., Inc., the Fifth Circuit, applying Texas law, concluded that a driller driving home after a 12-hour shift was not in the course and scope of employment. 653 F.2d 982, 987 (5th Cir. 1981). “[I]n the absence of some special benefit to the employer other than the mere making of the employee’s services available to the employer at his place of business[,] the rule in Texas is that an employee is not acting in the course and scope of his employment while traveling to and from work, and that the employer ordinarily cannot be held vicariously liable to one injured by the employee’s negligent operation of an automobile during these trips to and from work.” Id.

Here, Appellants do not suggest Mueller’s actions of going to town for dinner or watching a soccer game were assigned tasks. In fact, Appellants recognize employees are generally not acting within the scope of employment when traveling to and from work under the coming-and-going rule; see Painter, 561 S.W.3d at 138-39. Rather, Appellants rely on an exception to the transportation exclusion. Appellants contend Mueller’s actions of securing water and food for the crew constituted a service in furtherance of Cameron’s business—triggering the special mission exception. After all, Appellants note, workers need fluids and food during the workday, and we recognize the summary judgment record is conflicting as to whether Cameron provided the crew with either. Appellants further contend Cameron was aware workers drove to town to stock up on supplies.

Although driving to town to restock on water and supplies was not specifically contracted for, as was the case in Painter, here, the testimony is nonetheless conflicting as to whether it was implied and whether workers were instructed to travel to obtain necessary water and supplies. The Blue Marlin is located sixty-five miles—a 130-mile round trip—from civilization and contains no facilities for water—other than non-potable water—or food, and there is also no place for fuel. Appellants contend Cameron “paid workers a daily rate to make the three-hour round trip to acquire these necessities” and “were not only well aware that workers traveled to get food and water, [Cameron] also apparently instructed workers to do so.” Evidence in the record supports that Cameron advised laborers Pecos was the closest town for employees to obtain necessities and approved them to do so. Michael Amigh, a Cameron employee, testified to the following:

Q. So Pecos or Carlsbad would be recommended—be the one that Cameron would have workers go to, to get water and food to work out on these remote job sites, correct?

A. Correct.

Q. Okay. And either Pecos or Carlsbad was acceptable to Cameron?

A. Uh-huh. Yes sir. [Objection omitted].

Mueller invoiced Boone at a daily rate of $464, in addition to a vehicle allowance of $50 per day, a phone use fee of $12.50 per day, and $200 for a “travel in and travel out” fee. The vehicle allowance allowed Mueller to have his vehicle on site. Due to the hot conditions, workers ran their vehicles all day to have an air-conditioned place to sit between tasks. Boone, in turn, billed Cameron a flat $750 rate for Mueller’s services.2 As for the remoteness of the wellsite, a “travel in and travel out” allowance was paid to the workers for travel expenses.

Cameron seemingly paid “transportation, time, truck, and travel” expenses to Boone, who in turn, paid Mueller. Although the vehicle Mueller drove at the time of the collision was not a commercial vehicle and Mueller paid for his own gas and vehicle insurance, there is a $200 invoice from Boone to Cameron corroborating travel expenses were compensated—at a fixed rate. Evidence in the record establishes workers ran their trucks all day, and there was no place to refuel anywhere near the Blue Marlin; moreover, workers were compensated for fuel. The Lopez court determined the company’s business “called for employing specialized, non-local work crews in constantly changing, remote locations on temporary assignments,” and provided a company vehicle to Lopez, for which the company paid fuel. Seabright. Ins. Co. v. Lopez, 465 S.W.3d 637, 644 (Tex. 2015)[Emphasis added]. Here too, Cameron’s business called for the frequent replenishment of not only water and food, but fuel too, and workers were compensated for fuel expenses. Lopez, 465 S.W.3d at 644.

Thus, due to the fact that workers ran their trucks throughout their 12-hour shifts and were compensated for fuel, we find fueling the workers’ vehicles was a necessity in furtherance of Cameron’s business. As such, the summary judgment evidence creates a fact issue as to whether the $50 allowance and/or the travel in and travel out allowance encompassed travel for necessary supplies. Appellants also contend Valadez—Cameron’s manager—specifically told Mueller to travel to Pecos for water and food. Cameron counters by arguing there is no evidence that Valadez, or anyone else at Cameron, instructed Mueller to do so.

We find the summary judgment record raises a fact issue as to whether Mueller was acting in the course and scope of his employment at the time of the underlying event. The evidence is specifically conflicting as to whether Cameron provided workers drinking water, whether Cameron instructed workers to travel to obtain said drinking water, or at the very least, whether Cameron was aware workers traveled to obtain drinking water. Mueller testified the reason he traveled to Pecos on the night of the collision was to re-stock his supply of water, food and ice. Surely, having access to drinking water during a 12-hour shift, in hundred-degree weather, at a remote worksite, was necessary and benefited Cameron by ensuring workers were physically able to perform—aside from the obvious fact of it being vital to retaining functioning workers.

The conflicting testimony, coupled with the basic notion that obtaining drinking water and food for the crew could very likely constitute a necessary service in furtherance of Cameron’s business, leads us to conclude a fact issue exists as to whether Mueller was within the course and scope of his employment at the time of the accident.

C. Affirmance of Unaddressed Grounds

Cameron obtained summary judgment on Appellants’ claims for: (1) gross negligence; (2) vicarious liability based on a principal-agent relationship; (3) borrowed servant; and (4) joint enterprise. To the extent we have not addressed Appellants’ arguments as noted above, these grounds were not challenged on appeal and they are accordingly affirmed. See Rangel v. Progressive County Mut. Ins. Co., 333 S.W.3d 265, 270 (Tex.App.—El Paso 2010, pet. denied) (affirming uncontested ground for summary judgment on appeal).

SUMMARY JUDGMENT AS TO BOONE

Boone presents similar arguments to those raised by Cameron. It contends the summary judgment on the claims against it can be upheld because Mueller: (1) was released from employment before the collision occurred; (2) was an independent contractor as evidenced by a contractual agreement and conduct of the parties; and (3) was not acting within the course and scope of his employment. We need not reach all these issues because the summary judgment record shows Mueller was not Boone’s employee.

A. Was Mueller Boone’s employee?

We begin with what the parties contractually agreed to. On behalf of H&J, Mueller signed an agreement with Boone titled, “David Boone Oilfield Consulting Independent Contractors Agreement.” In this agreement, the parties agreed “each Contractor is Independent, Separate, and apart from [Boone]” for taxes and workers compensation purposes. The parties further agreed, “[t]he contractor is required to furnish his own tools and transportation to the job site.” Pursuant to the agreement, Boone did not withhold taxes.

Generally, an agreement providing a person is an independent contractor with no right to control is determinative of the parties’ relationship. Love, 380 S.W.2d at 582; Farlow v. Harris Methodist Ft. Worth Hosp., 284 S.W.3d 903, 911 (Tex.App.—Fort Worth 2009, pet. denied); Durbin, 132 S.W.3d at 659. However, an exception applies when a contract is a “mere sham, subterfuge, or cloak designed to conceal the parties’ true relationship” Id. Appellants contend they created a fact issue on the sham/subterfuge claim through two arguments: (1) the contract lacks details about how the relationship would work, and (2) Cameron’s discovery responses state that Mueller was Boone’s employee.

Appellants posit the agreement “lacks critical details, including any aspects of the work to be performed by Mueller, the terms of the agreement, the location at which work is to be performed, type of work involved, tools or equipment, or the right of control.” Irrespective of the agreement, Appellants assert Boone represented Mueller as its employee through its conduct at the well, and via “discovery responses indicating that it was Cameron’s belief that Mueller was Boone’s employee.” According to Appellants, the resulting “discrepancy” between the agreement and Boone’s conduct creates a fact issue regarding Mueller’s employment status as to Boone. Boone responds the parties understood the agreement created an independent contractor relationship, emphasizing that Mueller himself testified he was an independent contractor. Boone also relies on Valadez’s and Cameron’s identification of Mueller as an independent contractor.

However, existence of a contractual agreement explicitly providing for an independent contractor relationship does not end the inquiry, as Boone would like us to conclude. If parties have entered into a written contract that expressly provides for an independent contract relationship and it does not vest in the principal or the employer the right to control the details of the work; then evidence must be produced, aside from the contract, to show that the in-fact operating agreement was one which vested the right of control in the alleged master. Love, 380 S.W.2d at 592. Under such circumstances, although the right to control remains the ultimate test, the actual exercise of control is evidentiary. Id. In Gulf Refining Co. v. Rogers, although there was a written contract explicitly providing for an independent contractor relationship, there was evidence the contract was a subterfuge, and the company actually exercised control not only as to the manner in which the work was to be performed, but as to who should be employed to do the work. 57 S.W.2d 183, 185-86 (Tex.Civ.App.—Waco 1933, writ dism’d). The Rogers court held a master servant relationship existed. Id. (“the mere fact that the contract as written was so drawn for the purpose of creating the relation of independent contractor would not relieve the company of liability for the negligence of such servants” if such contract was a subterfuge, or if actual control over the means and methods by which the work was to be performed was exercised).

The parties’ arguments also direct us back to the Limestone test to distinguish an employee from an independent contractor. Limestone, 71 S.W.3d at 312 (courts look to: “(1) the independent nature of the worker’s business; (2) the worker’s obligation to furnish necessary tools, supplies, and materials to perform the job; (3) the worker’s right to control the progress of the work except about final results; (4) the time for which the worker is employed; and (5) the method of payment, whether by unit of time or by job.”). These elements are also consistent with the contractual designations in the parties’ agreement.

1. Independent nature of the worker’s business

The first Limestone factor requires analysis of how independently Mueller acted at the Blue Marlin. Mueller testified he was not Boone’s employee, but an independent contractor. He emphatically denied he worked for Boone, stating, “I didn’t go to work for David Boone. I go to work for EP, or I go to work for Cameron, or I go to work for XTO. I don’t go to work for David Boone.” Consistent with that relationship, Boone would ask Mueller if he was available for an upcoming project, and Mueller was free to accept or reject the job. Boone required the persons it placed pass a drug test, sign a contract, and carry a $1 million dollar automobile liability policy. Boone also provided worker’s compensation coverage in the event one of its placed workers was injured on the job.

Prior to commencing work at the Blue Marlin, Boone did not provide Mueller any type of training with respect to the work Mueller performed at the wellsite. Appellants contend Boone instructed Mueller when and where to work, designated the hours worked, and could remove Mueller from job sites at its discretion. Although there is conflicting evidence as to whether Mueller followed Cameron’s orders at the Blue Marlin or maintained broad discretion, Appellants cite no evidence proving Boone controlled Mueller. To the contrary, Boone did not have anyone present at the Blue Marlin telling Mueller what to do and had no work rules or regulations that we can discern from this record.

2. Tools and equipment

Cameron, not Boone, provided the specialized equipment needed for well flow testing, while Mueller provided his own hand tools on the job. Mueller purchased and provided his own sledgehammer, pipe wrench, laptop to report test data, and phone to create an internet hotspot to email test data.

3. Worker’s right to control progress

The progress of the work appears to have been dictated in part by the outflow of the well, and Mueller stated he followed specific tasks assigned to him by Cameron personnel. Cameron set the time and dates Mueller was to work, provided Mueller with on-site lodging, and direct management over the day-to-day operations; Boone denies having control over any of these matters and there is no evidence to support that it did. The lead on-site operator who gave orders and maintained overall responsibility at the Blue Marlin was Valadez—a Cameron employee. Although the testimony is conflicting as to whether Valadez controlled Mueller’s activities at the Blue Marlin—Mueller denies Valadez had control over him—there is no evidence Boone either had the right of such control or exercised such control. Appellants advance no evidence Boone held or exercised a right to control over the details of Mueller’s work.

4. Time for which the worker is employed

Mueller worked a total of four days on the Blue Marlin—from June 5 to June 8. Mueller worked for Boone from 2014 to 2016. When Mueller accepted the job, he did not know how long it would last.

5. Method of payment

Boone paid Mueller a flat daily rate through Mueller’s company, H&J, which submitted an invoice for each day’s work by Mueller to Boone. Boone, in turn, billed Cameron, which billed ConocoPhillips. Ultimately, Boone paid Mueller directly, and Mueller was sent a 1099 IRS form at the end of the year. Boone did not withhold taxes on the workers it placed. The testimony shows Boone did no little more than bring willing workers and employers together, and then handled the billing arrangements, taking its cut from the respective rates it negotiated.

Although some of these factors may not, alone, be enough to demonstrate a worker’s independent-contractor status, together they provide conclusive summary judgment evidence that Mueller was Boone’s independent contractor, and not its employee when the collision occurred. See Limestone, 71 S.W.3d at 312. The contractual agreement between Mueller and Boone does not in and of itself absolve the inquiry as to Mueller’s employment status. As the Court in Love stressed:

[E]xercise of control must be so persistent and the acquiescence therein so pronounced as to raise an inference that at the time of the act ... giving rise to liability, the parties by implied consent and acquiescence had agreed that the principal might have the right to control the details of the work. [Emphasis added].

Love, 380 S.W.2d at 592.

Here, we find such evidence of actual exercise of control by Boone lacking and, therefore, cannot overcome the express agreement between Boone and Mueller. We find no case, nor are we directed to any, that supports a finding that Boone is vicariously liable. The summary judgment evidence, coupled with balancing of the Limestone factors, is not so persistent or pronounced as to raise an inference at the time of the collision, the parties had an implied agreement Boone would control the details of Mueller’s work, of that in-fact Boone actually exercised such control.

Reviewing the evidence in the light most favorable to the non-movants, Appellants have not raised an issue of fact that leads reasonable and fair-minded individuals to differ in concluding Mueller was Boone’s independent contractor. At most, the evidence is weak and does no more than create a mere surmise or suspicion of material fact. Wade Oil & Gas, Inc., 417 S.W.3d at 540. Having concluded Mueller was not Boone’s employee, we do not reach whether he acted in the course and scope of his employment.

B. Affirmance of Unaddressed Grounds

Boone also moved for summary judgment on Appellants claims of (1) negligent entrustment; (2) negligent hiring, training, supervision, retention; (3) joint enterprise; and (4) negligence by David Boone in his individual capacity. Appellants have not challenged these granted grounds, and for that reason alone, we affirm.

DIRECT NEGLIGENCE CLAIM

As to both Boone and Cameron, Appellants urge us to create a duty for oil field companies to provide water and food to the workers on remote wellsites. The rationale for the duty would be to obviate the need for workers to be on the highways to replenish their own supplies.3 The summary judgment record includes evidence Highway 285—where the collision in this case occurred—was a “dangerous” road. Appellants cite to no authority recognizing this duty.

The existence of a duty is a question of law, balancing factors such as “the risk, foreseeability, and likelihood of injury against the social utility of the actor’s conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant.” Adkins, 926 S.W.2d at 289-90. But particularly relevant here, transportation accidents have been a part of oil field work for decades. See e.g. Texas Emp. Ins. Ass’n v. Inge, 208 S.W.2d 867, 867 (Tex. 1948)(transportation collision involving oil field worker). Up until today, no court has recognized the duty Appellants seek to impose, nor has the Legislature felt compelled to intervene. It is not for an intermediate court of appeals to advance the law in such a profound way. See Durham v. Children’s Med. Ctr. of Dallas, 488 S.W.3d 485, 495 (Tex.App.—Dallas 2016, pet. denied)(declining to create new tolling doctrine for wrongful-death claims involving the death of a minor); Martin v. Clinical Pathology Labs., Inc., 343 S.W.3d 885, 892 (Tex.App.—Dallas 2011, pet. denied)(judicial exceptions to employment-at-will doctrine must be created by the supreme court); Burroughs v. APS Intern., Ltd., 93 S.W.3d 155, 161 (Tex.App.—Houston [14th Dist.] 2002 pet. denied)(“It is not for an intermediate appellate court to create new causes of action.”); Landmark Chevrolet Corp. v. Universal Underwriters Ins. Co., 121 S.W.3d 886, 890–91 (Tex.App.—Houston [1st Dist.] 2003, no pet.)(declining at court of appeals level to create exception to “eight corners rule”). We decline Appellant’s invitation to create this duty today.

CONCLUSION

We reverse the summary judgments granted to Cameron, affirm the grants of summary judgment as to Boone, and remand for further proceedings consistent with this opinion.

Footnotes

1

Additionally, the well records confirmed another job was to commence at another nearby well, but Cameron personnel did not arrive at that well until June 18, and those who arrived were all Cameron personnel—not contractors. The only standby fees actually charged to ConocoPhillips were for equipment—not personnel. On Cameron’s billing to ConocoPhillips, no employee time is billed for June 9, but it did bill six persons for June 8, which would run from midnight to midnight.

2

And as it turns out, Cameron billed ConocoPhillips $1,000 per day for those services.

3

There was conflicting evidence, however, as to whether ConocoPhillips provided water and Gatorade to contract employees.

Court of Appeals of Texas, Corpus Christi-Edinburg.

GUADALUPE MARISCAL, Appellant,

v.

MCCARTHY BUILDING COMPANIES, INC. AND THE BRANDT COMPANIES, LLC, Appellees.

NUMBER 13-19-00211-CV

|

March 25, 2021

On appeal from the 148th District Court of Nueces County, Texas.

Before Chief Justice Contreras and Justices Longoria and Tijerina

Memorandum Opinion by Justice Tijerina

MEMORANDUM OPINION

JAIME TIJERINA Justice

Appellant Guadalupe Mariscal appeals the trial court’s grant of summary judgment in favor of appellees, McCarthy Building Companies, Inc. (McCarthy) and The Brandt Companies, LLC (Brandt). By six issues, Mariscal contends that (1) there is a conflict among the trial court’s rulings, (2) appellees’ summary judgment evidence is inadmissible, (3) “Evidence establishes that Appellees and Appellant’s employer were ‘Independent Contractors,’ ” (4) McCarthy is not entitled to the Texas Workers’ Compensation Act’s (the TWCA) exclusive remedy defense, TEX. LAB. CODE ANN. § 408.001(a), (5) “Appellees fall outside of [the Texas Labor Code] § 408.001,” and (6) the “[s]ubrogation [l]ien establishes [the] validity of Appellant’s third-party claims against Appellees.” We affirm.

I. BACKGROUND

McCarthy entered into a contract with Christus Health, the owner of Spohn Hospital—Shoreline in Corpus Christi, Texas, to work on a construction project. McCarthy subcontracted with Murray Drywall & Insulation of Texas, Inc. (Murray) and Brandt to work on the project. Murray subcontracted with Emerald Coast Cleaners (Emerald) to work on the project. On July 10, 2017, Mariscal, an Emerald employee, was injured while working on the project after he stepped in a hole that was covered with plywood. It is undisputed that Mariscal received workers’ compensation benefits due to his work-related injury.

On February 8, 2018, Mariscal sued McCarthy and Brandt for negligence, gross negligence, and negligence per se. According to Mariscal’s pleadings, Brandt employees made the hole while they were installing a drain, and they then covered the hole with a sheet of plywood. Mariscal stated that when he stepped on the plywood, he fell into the hole because the plywood was ineffective and caved when he stepped on it.

On June 28, 2019, appellees filed a traditional motion for summary judgment claiming that Mariscal could not file suit against them because (1) he had received workers’ compensation benefits and (2) appellees and Emerald were subscribers pursuant to an Owner Controlled Insurance Program (OCIP). See id. § 408.001 (providing that workers’ compensation is the exclusive remedy when the employer is a subscriber). Appellees attached evidence showing that Christus Health purchased an OCIP from the insurance broker/administrator Alliant Insurance Services, Inc. (Alliant) and that Christus Health contractually prohibited contractors and subcontractors from working on the project unless they had enrolled in the OCIP. Appellees attached summary judgment evidence showing that McCarthy, Brandt, and Emerald had enrolled in the OCIP and were covered by the workers’ compensation insurance policy purchased by Christus Health from Alliant. Appellees also provided summary judgment evidence showing that Mariscal received benefits from Alliant.

The record shows that on July 31, 2018, a visiting judge, the Honorable Jose Manuel Bañales, presided over a hearing on appellees’ motion and took the matter under advisement. Subsequently, another presiding judge, the Honorable David Stith, denied appellees’ motion. Appellees filed a petition for writ of mandamus in this Court “seeking to compel [Judge Bañales] to: (1) vacate its September 7, 2018 order denying their motion for summary judgment; (2) admit the affidavits attached to relators’ motion for summary judgment into evidence; and (3) render summary judgment in favor of relators [(appellees here)].” See In re McCarthy Bldg. Cos., Inc., No. 13-19-00065-CV, 2019 WL 961966, at *1 (Tex. App.—Corpus Christi–Edinburg Feb. 27, 2019, orig. proceeding) (mem. op.).

In our memorandum opinion addressing appellees’ petition for writ of mandamus, we noted that Judge Bañales “informed us that, although he presided over the hearing for summary judgment at issue in this original proceeding, he did not sign the September 7, 2018 order subject to review, and that order was instead signed by the Honorable David Stith, the Presiding Judge of the 319th District Court of Nueces County, Texas.” Id. This Court concluded that the matter was not “properly before us” and denied the petition for writ of mandamus without prejudice so that the new judge of the 148th District Court, the Honorable Carlos Valdez, could hold further proceedings on the matter within his sound discretion. Id.

Appellees filed a motion for reconsideration of their motion for summary judgment asserting the TWCA’s exclusive remedy defense and attaching and incorporating their originally filed traditional motion for summary judgment and summary judgment evidence. Mariscal filed a response objecting to appellees’ evidence and arguing that: (1) “the facts do not support multi-tier protection/statutory ‘exclusive remedy’ bar against [his] claims”; (2) “all of the construction contracts submitted and relied upon by [appellees] include[ ] a clear and unambiguous clause that each and all, whether general contractor, subcontractor, or sub-subcontractor were ‘independent contractors’ while performing their assigned work, and therefore do not receive the multi-tier protection” of the OCIP; (3) “the facts of this case [are] outside the holding by the Texas Supreme Court in HCBeck, Ltd. v. Rice, 284 S.W.3d 349 (Tex. 2009)”; and (4) he raised a question of fact.

The trial court granted appellees’ motions. This appeal followed.

II. STANDARD OF REVIEW

In a traditional motion for summary judgment, the movant has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). If the movant’s motion and summary judgment proof facially establish a right to judgment as a matter of law, the burden shifts to the non-movant to raise a material fact issue sufficient to defeat summary judgment. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). A defendant seeking a traditional motion for summary judgment must either conclusively disprove at least one element of each of the plaintiff’s causes of action or plead and conclusively establish each essential element of an affirmative defense. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995) (per curiam). We review a summary judgment de novo to determine whether a party’s right to prevail is established as a matter of law. Dickey v. Club Corp. of Am., 12 S.W.3d 172, 175 (Tex. App.—Dallas 2000, pet. denied).

In our de novo review of a trial court’s summary judgment, we consider all the evidence in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). The evidence raises a genuine issue of fact if reasonable and fair-minded jurors could differ in their conclusions in light of all of the summary-judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755–56 (Tex. 2007).

III. INCOMPATIBLE DECISIONS

By his first issue, Mariscal contends that reversal is warranted in this case due to the discrepancy between Judge Stith’s and Judge Valdez’s decisions. Specifically, as we understand it, Mariscal argues that a question of fact has been shown because prior to Judge Valdez granting summary judgment, Judge Stith denied appellees’ motion for summary judgment. That is Mariscal argues that because reasonable minds differed in their opinion in this case, a question of fact has been shown to exist. Mariscal cites no authority, and we find none, supporting a conclusion that a question of fact exists, thereby precluding summary judgment, solely because two judges reach a different conclusion regarding whether to grant or deny a motion for summary judgment. We decline Mariscal’s invitation to make such a novel conclusion. Therefore, we overrule Mariscal’s first issue.

IV. ADMISSION OF EVIDENCE

By his second issue, Mariscal contends that the trial court should have excluded all of appellees’ summary judgment evidence. Specifically, Mariscal argues as follows:

a) the Affidavits do not identify, or attach what “documents” were reviewed in preparation for each of the Affidavits; TEX. R. CIV. P. 166a(d); McConathy v. McConathy, 869 S.W.2d 341, 342 n.2 (Tex. 1994);

b) the Affidavits do not address how each of the Affiants has “personal knowledge” of the “regular practice” of the entities to “make” and “receive” the Affidavit statements which refer to “condition,” “opinion,” and “diagnosis” which none of the attached documents contain or specify inasmuch as none of the Affiants have medical credentials to attest under oath to such medical “facts” (with the exception of the DWC-73 medical form signed by a medical doctor of whom the Affiant has no personal knowledge, all the Affidavits exhibits are insurance forms and schedules or contract documents), and therefore, all of Defendants’ Affidavits are not “clear, positive, and direct, otherwise credible and free from contradictions and inconsistencies,” and which none of the Affiants have been proven competent to testify about; TEX. R. CIV. P. 166a(c); New York Times Inc. v. Isaacks, 146 S.W. 3d 144, 164 (Tex. 2004); Casso v. Brand, 776 S.W.2d 551, 558 (Tex. 1989);

c) the Affiants do not state how each of them have “personal knowledge” of any of the documents attached to their Affidavits, particularly when the Affiants are in locations shown by the Notary Stamp on each Affidavit that are separate and distinct from the Project site; TEX. R. CIV. P. 166a(f); TEX. R. EVID. 602; Kerlin v. Arias, 274 S.W.3d, 666, 668 (Tex. 2008); Ryland Grp., Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996);

d) the Appellees do not address how the attached “haystack” of policy documents and Certificates that are shown to be in effect during a timeframe outside the timeframe of the underlying incident in this cause—to-wit July 10, 2017—are relevant to the issues presented in their motion; TEX. R. EVID. 402; E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995);

e) the Appellees do not address how the attached “haystack” of policy documents and Certificates that have different and distinct policy identifiers from the one under which the Plaintiff received his benefits, are relevant to the issues presented in their motion and meet the “ultimate responsibility for obtaining alternate workers’ compensation in the event FMR [Owner] terminated the OCIP” test for the general contractor under TEX. LABOR CODE § 406.123; TEX. R. EVID. 402; E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995); HCBeck Ltd. v. Rice, 52 S.W.3d 349, 352-352 (Tex. 2009); and

f) in particular, the second Affidavit by Ms. Barlow, attached to the Appellants’/Defendants’ Reply on July 27, 2018 without the requisite leave of court under TEX. R. CIV. P. 166a(c), includes incomprehensible statements to include an explanation affirming that a Notice letter (attached to Plaintiff’s Response as Exhibit 3), addressed to Plaintiff’s counsel to assert a lien against Plaintiff’s counsel for negligence in inasmuch as the “accident [incident at issue in this case], occurred under circumstances creating liability against you for injuries sustained by reason of your negligence,” and further, the sworn statement that: Regarding my Exhibit 3 to Plaintiff’s counsel, my statements regarding a lien refer to a lien against Plaintiff. In making that statement, I had no expectancy that such lien would be satisfied from a third-party other than Plaintiff. is a clear indication that the second Affidavit by Ms. Barlow is not “clear, positive, and direct, otherwise credible and free from contradictions and inconsistencies,” inasmuch as it identifies the Plaintiff as a “third-party,” and seeks to subrogate workers’ compensation benefits directly from the Plaintiff, which are protected against such intended subrogation by the workers’ compensation carrier, sworn statements by Affiant which are misstates of fact and law, and are therefore, defective. TEX. LABOR CODE § 408.201; TEX. CON. art. XVI, § 28; Haynes v. Haynes, 178 S.W.3d. 350, 355 (Tex. App.—Houston [14th Dist.] 2005, pet denied).

Rule 38.1(i) requires a party to make “a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record” in its appellate brief. TEX. R. APP. P. 38.1(i). “To comply with Rule 38.1, appellants must provide such a discussion of the facts and the authorities relied upon to maintain the point at issue.” Lowry v. Tarbox, 537 S.W.3d 599, 619 (Tex. App.—San Antonio 2017, pet. denied) (citing Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 128 (Tex. App.—Houston [1st Dist.] 2002, pet. denied)). “This is not done by merely uttering brief conclusory statements, unsupported by legal citations.” Id. “When appellants fail to discuss the evidence supporting their claim or apply the law to the facts, they present nothing for review.” Id. at 620 (citing Bolling v. Farmers Branch Indep. Sch. Dist., 315 S.W.3d 893, 895–96 (Tex. App.—Dallas 2010, no pet.)). An appellate issue is waived by failure to offer argument, provide appropriate record citations, or a substantive analysis. Id.

After setting out the above-stated list of alleged deficiencies in appellees’ summary judgment evidence, Mariscal sets out the procedural history of his objections in the trial court and then reiterates that he provided the trial court with objections that required it to exclude appellees’ evidence. However, other than the assertions listed above with the citations listed after each allegation, Mariscal has not presented any substantive legal argument applying the legal authorities cited to the facts of this case. See TEX. R. APP. P. 38.1(i). Mariscal merely recites the list of global and unsubstantiated allegations with general citation to authority, without explaining how that authority cited applies to the facts here. Thus, Mariscal has failed to provide any substantive analysis in such a manner as to demonstrate that the trial court committed reversible error when it did not exclude appellees’ summary judgment evidence. We are prohibited from making Mariscal’s argument for him, and we refuse to do so. We have no duty to ascertain how the law as set out in the authority cited by Mariscal applies to the facts in this case, and we are prohibited from researching the law and then fashioning a legal argument for him when he has failed to do so. See Canton-Carter v. Baylor Coll. of Med., 271 S.W.3d 928, 932 (Tex. App.—Houston [14th Dist.] 2008, no pet.); see also Atkinson v. Sunchase IV Homeowners Ass’n, Inc., No. 13-17-00691-CV, 2020 WL 2079093, at *2 (Tex. App.—Corpus Christi–Edinburg Apr. 30, 2020, no pet.) (mem. op.). Therefore, we overrule Mariscal’s second issue.

V. TWCA

“The purpose of the [TWCA] is to provide employees with certainty that their medical bills and lost wages will be covered if they are injured.” HCBeck, Ltd., 284 S.W.3d at 350. An employee benefits from workers’ compensation insurance benefits “because it saves the time and litigation expense inherent in proving fault in a common law tort claim.” Id. “Recovery of workers’ compensation benefits is the exclusive remedy of an employee covered by workers’ compensation insurance coverage ... against the employer or an ... employee of the employer.”1 TEX. LAB. CODE ANN. § 408.001(a); TIC Energy & Chem., Inc. v. Martin, 498 S.W.3d 68, 69 (Tex. 2016). Thus, if an employer subscribes to workers’ compensation insurance benefits, and is then sued by a covered employee, the employer may “assert the statutory exclusive remedy defense against the tort claims of its employees for job related injuries” and generally cannot be held liable in tort for those injuries HCBeck, Ltd., 284 S.W.3d at 350. A general contractor may invoke the exclusive remedy defense provided to a subscribing employer “if, pursuant to a written agreement, it ‘provides’ workers’ compensation insurance coverage to the subcontractor and its employees.”2 Id. (citing TEX. LAB. CODE ANN. §§ 406.123(a), 408.001(a)).

Owners, contractors, and subcontractors may agree to an OCIP, which “is designed to secure insurance, including workers’ compensation insurance, at a reasonable price for all workers at a job site or construction site.” TIC Energy & Chem., Inc., 498 S.W.3d at 70 n.7 (citing HCBeck, Ltd., 284 S.W.3d at 359–60 & n.6). OCIPs benefit the parties because they “allow the highest-tiered entity to ensure quality and uninterrupted coverage to the lowest-tiered employees.” Id. OCIPs save costs, secure better coverage, and have better safety programs. HCBeck, Ltd., 284 S.W.3d at 360 (citing and quoting Am. Protection Ins. v. Acadia Ins., 814 A.2d 989, 991 n.1 (Me. 2003)). Subcontractor’s employees who do not opt out of workers’ compensation coverage waive their right to sue a general contractor for their injuries when a general contractor is deemed the employer of a subcontractor’s employees and provides workers’ compensation insurance to them. Hunt Const. Grp., Inc. v. Konecny, 290 S.W.3d 238, 243 (Tex. App.—Houston [1st Dist.] 2008, pet. denied).

In other words, the general contractor enrolled in workers’ compensation insurance is immune from claims brought by a subcontractor’s employee and is entitled to the exclusive remedy defense. See TEX. LAB. CODE ANN. §§ 406.123 (“A general contractor and a subcontractor may enter into a written agreement under which the general contractor provides workers’ compensation insurance coverage to the subcontractor and the employees of the subcontractor.... An agreement under this section makes the general contractor the employer of the subcontractor and the subcontractor’s employees only for purposes of the workers’ compensation laws of this state.”), 408.001(a) (setting out the exclusive remedy defense). “A general workplace insurance plan that binds a general contractor to provide workers’ compensation insurance for its subcontractors and its subcontractors’ employees achieves the Legislature’s objective to ensure that the subcontractors’ employees receive the benefit of workers’ compensation insurance.” TIC Energy & Chem., Inc., 498 S.W.3d at 69.

A. Failure to Prove Ultimate Responsibility

By his third issue, Mariscal argues that under HCBeck in order for McCarthy to establish that it provided workers’ compensation insurance, it must have agreed that it was “ultimately responsible for obtaining workers’ compensation insurance in the event [Christus Health] terminate[d] the OCIP.” 284 S.W.3d at 351–52. Mariscal does not disagree that an agreement to provide workers’ compensation insurance existed pursuant to the OCIP; instead, he argues that McCarthy cannot invoke the exclusive remedy defense because it did not agree to provide worker’s compensation coverage in the event the OCIP was discontinued.

In TIC Energy & Chemical, Inc., the Texas Supreme Court discussed its holding in HCBeck as follows:

In HCBeck, Ltd. v. Rice, we explained that a “general contractor who has, pursuant to a written agreement, purchased a workers’ compensation insurance policy covering its subcontractors and its subcontractors’ employees ... becomes the statutory employer of its subcontractor’s employees, and is thus entitled to the benefits conferred on employers by the Act.” Furthermore, because a contractor can “ ‘provide[ ]’ workers’ compensation, even when it has not purchased the insurance directly, ... multiple tiers of subcontractors [thereby] qualify as statutory employers entitled to the exclusive-remedy defense.” “Such a scheme,” we observed, “seems consistent with the benefits offered by controlled insurance programs, which are designed to minimize the risk that the subcontractors’ employees will be left uncovered.” We further explained that a construction and application of section 406.123 that “favors blanket coverage to all workers on a site” accords with legislative intent and the “Legislature’s ‘decided bias’ for coverage.”

498 S.W.3d at 74.

In its analysis of the appellant’s argument that the general contractor did not provide coverage to its subcontractors and their employees, the HCBeck Court pointed out that the general contractor provided insurance because it agreed to do so, and the contract stated that the general contractor would pay for the insurance if there were a lapse in the OCIP. See HCBeck, Ltd., 284 S.W.3d at 360. The HCBeck Court emphasized that its primary concern was whether the general contractor did more than just require the lower tiered contractors to obtain workers’ compensation insurance and not whether one could imagine a scenario where the general contractor might fail to do so. Id. at 355–56; see also Cook v. White Const. Co., No. 03-10-00114-CV, 2011 WL 3371542, at *4 (Tex. App.—Austin Aug. 4, 2011, no pet.) (mem. op.). Thus, the HCBeck Court’s analysis of whether the general contractor provided workers’ compensation insurance to its subcontractors focused on whether a contingency plan was in place that prevented the subcontractors from going without workers’ compensation insurance if a lapse in the OCIP occurred. See 284 S.W.3d at 360. Only under that scenario could the general contractor claim that it “provided” the coverage pursuant to the TWCA and as the court defined the term “provide.” Id. In other words, to be entitled to the exclusive remedy defense, the general contractor must ensure that if a lapse in the OCIP occurs, the subcontractors are not able to opt out of coverage. See id.

We find the reasoning in Cook v. White Construction Co. persuasive. See 2011 WL 3371542, at *4. In that case, the court did not interpret HCBeck as standing for the proposition that a general contractor only “provides” workers’ compensation insurance if it promises to pay for replacement coverage in the event of a lapse in the OCIP. Id. Instead, the Cook court explained that the general contractor must ensure that the employees are covered by workers’ compensation insurance throughout the project, and it implied that the general contractor promising to pay for the replacement coverage if the owner discontinues the OCIP is not the only way to make that showing. Id.

In Cook, the appellant argued that in HCBeck, the owner’s “OCIP said [the general contractor] ‘shall’ obtain insurance for [appellant] if the OCIP lapsed, whereas” the OCIP in Cook said that the general contractor and subcontractors would be “expected to” provide insurance if the OCIP lapsed. See id. The appellant claimed using the term “will be expected to” was “precatory at best,” but it was not mandatory like the “shall” which was used in the OCIP in HCBeck. Id. The Cook court stated that in HCBeck the Texas Supreme Court “emphasized that its primary concern was whether [the general contractor] actually provided workers’ compensation insurance, not whether one could imagine a scenario where it might fail to.” Id. The Cook court rejected the appellant’s argument and determined the contract had indeed required the general contractor to provide workers’ compensation insurance if the OCIP lapsed. Id.

In Powell, this Court also interpreted HCBeck. Powell v. Valero Energy Corp., No. 13-18-00209-CV, 2019 WL 961958, at *3 (Tex. App.—Corpus Christi–Edinburg Feb. 28, 2019, pet. denied) (mem. op.). In Powell, VRT, the owner of the premises, hired Qualspec to work on a project, and it required Qualspec to enroll in an OCIP. Id. The appellant, Qualspec’s employee, was injured while working on the project, and he sued VRT for negligence. Id. The appellant maintained “that, because VRT could have required Qualspec to procure its own [workers’ compensation] coverage, VRT did not agree to ‘provide’ coverage.” Id.

We looked at the common meaning of the word “provide” to determine “whether VRT provided coverage by written agreement.” Id. (citing Halferty v. Flextronics Am., LLC, 545 S.W.3d 708, 713 (Tex. App.—Corpus Christi–Edinburg 2018, pet. denied)). We said that under the labor code “provide” means “to supply or make available.” Id. We noted that “a general contractor does not provide coverage simply by requiring its subcontractors to secure their own coverage.” Id. (citing Flextronics, 545 S.W.3d at 714). “Rather, the general contractor must do something more than pass the onus of obtaining coverage to the subcontractor” and “must assure coverage by putting ‘something in the pot.’ ” Id. We concluded that because “VRT required Qualspec to participate in its ROCIP on qualifying projects, and with respect to [the appellant], it provided workers’ compensation coverage through the ROCIP,” it had “done more than simply pass the onus of obtaining coverage to a subcontractor.” Id.

The appellant argued “that the Agreement allow[ed] VRT to choose if it provides coverage through the ROCIP, but the Agreement impose[d] no obligation for VRT to provide coverage.” Id. at *4. We acknowledged that the Agreement provided that coverage was not available for certain other services, but we concluded that “it is of no consequence that coverage might not have been made available for other services and ‘we look at what did happen, not what might happen.’ ” Id. (citing HCBeck, 284 S.W.3d at 359 n.4). We then pointed out that “VRT determined that Qualspec’s inspection services at the Refinery was qualifying ‘Work,’ and it required Qualspec to enroll in its ROCIP”; therefore, we concluded that the appellant “received compensation under the applicable policy for his injuries.” Id. We stated that “[e]xtending the exclusive remedy defense to VRT under such circumstances is consistent with the TWCA’s ‘decided bias’ for coverage.” Id.

Here, the summary-judgment record establishes that McCarthy, Brandt, Emerald, and all subcontractors were required to enroll in workers’ compensation insurance provided by the OCIP and that each of the entities complied by enrolling with the OCIP insurance provider, Alliant. See Funes v. Eldridge Elec. Co., 270 S.W.3d 666, 671–73 (Tex. App.—San Antonio 2008, no pet.) (concluding in the context of an OCIP that a general contractor that complies with the terms of the OCIP has provided workers’ compensation to its employees). In its contracts with its subcontractors, McCarthy required all the subcontractors to enroll in the OCIP, and it is undisputed that they did so. It is undisputed that the subcontractors, including Brandt and Emerald, had workers’ compensation insurance pursuant to the OCIP and at no time went without it. It is undisputed that the OCIP never lapsed, and as a result, Mariscal received his benefits from Alliant.

The contract between McCarthy and Brandt states, “All insurance requirements shall flow down to subcontractors and suppliers of any tier and any flow down of these requirements to such subcontractors and suppliers of any tier does not relieve Subcontractor of its obligation to provide the insurance outlined herein.” The contract between Brandt and Emerald incorporated the McCarthy/Brandt contract. The summary judgment evidence establishes that none of the subcontractors would have been allowed to work on the project without enrolling in the OCIP. The OCIP specifically stated, “Access to the project site will not be permitted until the enrollment [in the OCIP] is complete.”

Finally, Mariscal acknowledges that had the OCIP lapsed, the contract stated that “[t]he cost of the replacement coverage shall be at Owner’s expense.” Therefore, although the contract may not have specifically stated that McCarthy would be responsible for paying for the replacement insurance policies, the contract required Christus Health to do so, and therefore, McCarthy, Brandt, Emerald, and their employees were not at risk of losing coverage even if the OCIP lapsed. HCBeck, Ltd., 284 S.W.3d at 350; see also Powell, 2019 WL 961958, at *3.

An owner who procures the services of a contractor is considered a general contractor for purposes of the TWCA and is entitled to the exclusive remedy defense. See Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 438 (Tex. 2009) (op. on reh’g) (“[A] general contractor is a person who takes on the task of obtaining the performance of work. That definition does not exclude premises owners ....”). Here, it is undisputed that Christus Health and McCarthy signed a contract for McCarthy to perform work on the project. This evidence supports a conclusion that Christus Health is McCarthy’s employer for purposes of the TWCA. See id.; see also Lazo v. Exxon Mobil Corp., No. 14-06-00644-CV, 2009 WL 1311801, at *2 (Tex. App.—Houston [1st Dist.] May 7, 2009, no pet.) (mem. op.) (deeming a premises owner a statutory employer where the agreement stated that premises owner could provide OCIP coverage and it did so). Christus Health’s promise to purchase replacement insurance if a lapse in the OCIP occurred “indicates that the higher-tier contractor ha[d] the ultimate obligation to ensure that the employees of the lower-tier subcontractors [were] covered.” See HCBeck, Ltd., 284 S.W.3d at 353. The evidence thus establishes that a contract existed that provided workers’ compensation insurance even if the OCIP lapsed, and under pertinent authority, so long as an upper tier contractor does this, all lower tier contractors are covered. TIC Energy & Chem., Inc., 498 S.W.3d at 74.

Nonetheless, Mariscal argues that Christus Health’s promise to pay for replacement insurance if a lapse in the OCIP occurred proves that McCarthy did not have “ultimate responsibility” for workers’ compensation coverage on the project. However, in HCBeck, the Texas Supreme Court explained that § 406.123(a)’s exclusive remedy defense “does not require a general contractor to actually obtain the insurance, or even pay for it directly.” 284 S.W.3d at 353. The HCBeck Court held that although the general contractor in that case was not required to pay for the coverage that was provided to the subcontractor by the owner under the OCIP, the general contractor still “provided” the coverage to the subcontractors. Id. We conclude that the same reasoning applies here. Thus, although McCarthy was not required to pay for the replacement coverage had a lapse in the OCIP occurred, Christus Health would have supplied it, and Emerald would have been covered if a lapse in the OCIP occurred. This reasoning aligns with TIC Energy & Chem., Inc., which states that a contractor “ ‘provide[s]’ workers’ compensation, even when it has not purchased the insurance directly ... multiple tiers of subcontractors [thereby] qualify as statutory employers entitled to the exclusive-remedy defense.” 498 S.W.3d at 74.

To hold to the contrary that McCarthy did not provide the insurance, would produce an unjust and unreasonable result. See Funes, 270 S.W.3d at 671. Here, Christus Health, the premises owner, has implemented an OCIP and contractually required its general contractor, McCarthy, to contractually require all subcontractors to enroll in the OCIP, and Christus Health agreed to purchase replacement coverage if a lapse in the OCIP occurred. To conclude that McCarthy did not “provide” the insurance would preclude protection of the general contractor, whom the Legislature clearly intended to protect under subsections 406.123(a) and (e). See id. at 672.

In that hypothetical, the general contractor would be required to procure a second compensation insurance program in order to qualify under the statute as an “employer” who “provides” insurance, and thereby obtain [TWCA’s] protection. This, however, makes little sense because of its redundancy—the premises owner has already established a program in which all, including the general contractor, are required to enroll, and under which all, including the general contractor, are intended to be protected. The resulting “double coverage” for, in effect, single protection is superfluous, and outside any reasonable intent of the Legislature.

Id.

Accordingly, under the applicable authority, we conclude that McCarthy did more than merely require that Emerald enroll in workers’ compensation insurance and therefore met the definition of “provide” as used in the TWCA. See HCBeck, 284 S.W.3d at 359 n.4 (explaining that the fact that the premises owner “was not contractually bound to continue the OCIP” did not preclude statutory employer status for general contractor because the general contractor promised to provide it); Etie v. Walsh & Albert Co., Ltd., 135 S.W.3d 764, 765 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) (holding that a general contractor was a statutory employer where it exercised its option to provide workers’ compensation coverage); see also Cook, 2011 WL 3371542, at *4 (concluding that the general contractor was a statutory employer where the premises owner could have discontinued the OCIP coverage but did not). Therefore, the evidence establishes as a matter of law that McCarthy is deemed Brandt’s employer for purposes of the TWCA. See TEX. LAB. CODE ANN. § 406.123(e). Mariscal does not challenge the trial court’s conclusion that Brandt is Emerald’s deemed employer for purposes of the exclusive remedy defense. See TIC Energy & Chem., Inc., 498 S.W.3d at 70. Accordingly, appellees met their burden to show that they were entitled to invoke the exclusive remedy defense, and the burden shifted to Mariscal to show that a question of fact existed to defeat summary judgment. We overrule Mariscal’s third issue.

D. Independent Contractor

Mariscal by his fourth and fifth issues contends that Emerald, McCarthy, and Brandt were independent contractors and were therefore not entitled to assert TWCA’s exclusive remedy defense. Appellees cite § 406.123’s exception to § 406.122(b)’s general rule that subcontractors are generally independent contractors, arguing that under the exception, McCarthy was the deemed employer of its subcontractors and their employees and Brandt was the deemed employer of Emerald and its employees. Therefore, according to appellees, § 406.122(b) does not apply here.

“[T]he purposes of the [TWCA] are best served by deeming immune from suit all subcontractors and lower-tier subcontractors who are collectively covered by workers’ compensation insurance.” Hunt Const. Grp., Inc., 290 S.W.3d at 247. One of the Legislature’s “purposes in passing the [TWCA] was to ensure injured workers could obtain reimbursement for medical expenses related to workplace injuries without the time, money, and difficulty of a negligence lawsuit.” Id. (citing Lawrence v. CDB Servs., Inc., 44 S.W.3d 544, 555 (Tex. 2001) (Baker, J., dissenting)). In addition, the TWCA encourages “employers to participate in workers’ compensation by precluding nonsubscribing employers from relying on common-law defenses to negligence in defending against their employees’ personal-injury actions.” Id. (citing Kroger Co. v. Keng, 23 S.W.3d 347, 350 (Tex. 2000)).

In TIC Energy, the Texas Supreme Court held that § 406.122(b) is the general rule and that § 406.123 sets out a permissive exception. 498 S.W.3d at 71. Section 406.122(b) states,

A subcontractor and the subcontractor’s employees are not employees of the general contractor for purposes of this subtitle if the subcontractor: (1) is operating as an independent contractor; and (2) has entered into a written agreement with the general contractor that evidences a relationship in which the subcontractor assumes the responsibilities of an employer for the performance of work.

TEX. LAB. CODE ANN. § 406.122(b). Section 406.123, entitled “Election to Provide Coverage; Administrative Violation,” states that “[a] general contractor and a subcontractor may enter into a written agreement under which the general contractor provides workers’ compensation insurance coverage to the subcontractor and the employees of the subcontractor.” Id. § 406.123(a). Section 406.123 also states, “An agreement under this section makes the general contractor the employer of the subcontractor and the subcontractor’s employees only for purposes of the workers’ compensation laws of this state.” Id. § 406.123(e). Moreover, employees may have more than one employer within the meaning of the TWCA, and each employer may raise the exclusive remedy provision as a bar to the employee’s claims. See Wingfoot Enters. v. Alvarado, 111 S.W.3d 134, 143 (Tex. 2003); Etie, 135 S.W.3d at 768.

In general, under § 406.122(b), subcontractors and their employees are independent contractors, so long as the parties agree that workers’ compensation insurance will be provided pursuant to an OCIP; however, under § 406.123, all tiers of the contractors are not considered independent contractors for purposes of the TWCA. See TEX. LAB. CODE ANN. § 406.122(b), 123; HCBeck, Ltd., 284 S.W.3d at 353 (explaining that because the general contractor provided workers’ compensation to the subcontractors pursuant to an OCIP, the general contractor was entitled to the exclusive remedy defense as an employer). In that case, the general contractor is deemed the employer of the subcontractor and the subcontractor’s employees for purposes of the workers’ compensation laws of this state. See TEX. LAB. CODE ANN. § 406.123(e); HCBeck, Ltd., 284 S.W.3d at 353 (recognizing general contractor’s status as employer of subcontractors when general contractor pursuant to an OCIP agreed to provide workers’ compensation insurance to the subcontractors).

Here, we have already concluded that workers’ compensation insurance had been provided upstream and downstream. Therefore, we find “no reason why this shift in status from ‘independent contractor’ to ‘deemed employee,’ ” with its concomitant protections, should be denied to any tiers. See Etie, 135 S.W.3d at 767; see also Powell, 2019 WL 961958, at *3 (“The TWCA’s ‘deemed employer/employee relationship extends throughout all tiers of subcontractors.’ ”). A subcontractor retains its status as an independent contractor by choosing not to participate in workers’ compensation coverage. Etie, 135 S.W.3d at 768. However, here, McCarthy, Brandt, and Emerald all chose to participate and were in fact required to participate in the OCIP providing workers’ compensation insurance. Therefore, we conclude that the TWCA’s deemed employer/employee relationship extended throughout all tiers of the subcontractors under § 406.123 and that McCarthy, Brandt, and Emerald were not independent contractors for purposes of the TWCA. See TEX. LAB. CODE ANN. § 406.123; TIC Energy, 498 S.W.3d at 70; Etie, 135 S.W.3d at 768; see also Powell, 2019 WL 961958, at *3. We overrule Mariscal’s fourth and fifth issues.3

VI. SUBROGATION

By his sixth issue, Mariscal contends that a subrogation lien establishes his third-party claims. Specifically, Mariscal complains of a letter from appellees’ attorney he alleges contains “statements [that] are a complete misrepresentation of the law made to the Court, under oath” and that the submission of those “statements, made under oath, is sanctionable.” Mariscal then repeats his claims, without substantive legal analysis, that appellees failed in their summary judgment burden pursuant to the caselaw. However, Mariscal does not state or explain how the letter would entitle him to reversal of the trial court’s summary judgment. Accordingly, we conclude that this issue is inadequately briefed. See TEX. R. APP. P. 38.1(i). We overrule Mariscal’s sixth issue.

VII. CONCLUSION

We affirm the trial court’s judgment.

Delivered and filed on the 25th day of March, 2021.

Footnotes

1

An exception, not applicable here, applies to those claims involving the death of an employee caused by an employer’s intentional or grossly negligent conduct. TEX. LAB. CODE ANN. § 408.001.

2

A general contractor is “a person who undertakes to procure the performance of work or a service, either separately or through the use of subcontractors.” Id. § 406.121(1). A subcontractor is a person who “contracts with a general contractor to perform all or part of the work or services that the general contractor has undertaken to perform.” Id. § 406.121(5).

3

Mariscal recognizes that the exception applies when a general contractor has provided workers’ compensation insurance. However, he disagrees with our conclusion that McCarthy did so.

Court of Appeals of Texas, San Antonio.

DICEX INTERNATIONAL, INC., Appellant

v.

AMIGO STAFFING, INC., Appellee

No. 04-20-00018-CV

|

Delivered and Filed: March 24, 2021

From the 111th Judicial District Court, Webb County, Texas

Trial Court No. 2015CVT001668-D2

Honorable Monica Z. Notzon, Judge Presiding

Sitting: Beth Watkins, Justice

Liza A. Rodriguez, Justice

Lori I. Valenzuela, Justice

MEMORANDUM OPINION

Opinion by: Lori I. Valenzuela, Justice

AFFIRMED

Dicex International, Inc. (“Dicex”) appeals from a summary judgment rendered in favor of Amigo Staffing, Inc. (“Amigo”). We affirm.

FACTUAL BACKGROUND

In 2009, Dicex and Amigo entered into a temporary employment services (“TES”) agreement under which Amigo provided Dicex with temporary warehouse and clerical employees. Roberto Avila Rodriguez was assigned by Amigo to operate a forklift at a Dicex warehouse in Laredo, Texas. In 2013, Rodriguez was injured while operating the forklift. Based on this work-related injury, Rodriguez applied for and received workers’ compensation benefits from Amigo.

PROCEDURAL BACKGROUND

Rodriguez sued Dicex, Amigo, Panther Expedited Services, Inc. (“Panther”), and two drivers (“Ellis” and “Daly”) for his alleged injuries. After Rodriguez non-suited Amigo, Dicex filed a third party petition against Amigo, alleging breach of contract and reckless and/or negligent misrepresentation, and claiming contribution. Dicex and Panther each filed motions for summary judgment against Rodriguez. In its summary judgment motion, Dicex argued that, pursuant to Texas Labor Code section 93.004(b) of the Texas Workers’ Compensation Act (the “Act”), Rodriguez’s claims were barred by the Act’s exclusive remedy provision.1 See Rodriguez v. Panther Expedited Servs., Inc., 04-17-00291-CV, 2018 WL 3622066, at *2 (Tex. App.—San Antonio July 31, 2018, pet. denied) (mem. op.). A panel of this court held that the work-related injury upon which Rodriguez’s claims were based “occurred on May 19, 2013, almost four months before the effective date of section 93.004. Thus, section 93.004(b) was not effective at the time of the injury, and therefore, is inapplicable to this case.” Id. at *4. Because Dicex’s motion for summary judgment relied only on the exclusive remedy provision of section 93.004(b), which was inapplicable, this court concluded that section could not form the basis for the summary judgment in favor of Dicex. Id. Therefore, the court held “the trial court erred in granting summary judgment in favor of Dicex because in its motion for summary judgment, Dicex relied on the exclusive remedy provision of the TWCA as made applicable to temporary employment services through section 93.004(b) of the Labor Code, which was inapplicable due to its effective date.” Id. at *11. This court reversed the trial court’s summary judgment in favor of Dicex and remanded that portion of the matter to the trial court for further proceedings.2 Id.

On remand, Amigo filed a combined traditional and no-evidence motion for summary judgment against Dicex. In its traditional motion for summary judgment, Amigo asserted its defense that Dicex’s suit against Amigo was barred in its entirety by the exclusive remedy provisions of the Act pursuant to Texas Labor Code sections 408.001(a) and 417.004. In its no-evidence motion for summary judgment, Amigo asserted there was no evidence on Dicex’s causes of action for breach of contract and reckless/negligent misrepresentation, or on its claim for contribution.

Dicex responded to both motions asserting Amigo failed to meet its burden of proof on its defense, and maintaining it produced evidence raising genuine issues of material fact on the challenged elements of its causes of action. The trial court rendered a take-nothing summary judgment in Amigo’s favor against Dicex. After the court severed Rodriguez’s claims against Dicex, Dicex filed this appeal from the summary judgment rendered in favor of Amigo.

AMIGO’S TRADITIONAL MOTION FOR SUMMARY JUDGMENT

In its traditional motion for summary judgment, Amigo alleged (1) Dicex’s breach of contract and misrepresentation causes of action and its contribution claim were barred in their entirety by the exclusive remedy provisions provided in Texas Labor Code sections 408.001(a) and 417.004, and (2) the two-year statute of limitations on Dicex’s misrepresentation claim had expired.

A. Standard of Review

A traditional summary judgment is proper only when the movant establishes there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c). A defendant who conclusively establishes an affirmative defense is entitled to summary judgment on that claim. Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010). Unlike a no-evidence motion, a traditional motion for summary judgment must stand on its own merits; there is no right to a traditional summary judgment by default. See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 (Tex. 1993). “The nonmovant has no burden to respond to a summary judgment motion unless the movant conclusively establishes its cause of action or defense.” M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000) (per curiam). If the movant satisfies its burden, the burden shifts to the nonmovant to raise a genuine issue of material fact precluding summary judgment. Lujan v. Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018). “In reviewing the grant of summary judgment, we must credit evidence favoring the nonmovant, indulging every reasonable inference and resolving all doubts in [its] favor.” Id.

B. Analysis

“Recovery 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 the death of or a work-related injury sustained by the employee.” TEX. LABOR CODE § 408.001(a). This section limits an employer’s liability for injuries sustained by its employees through the exclusive remedy provision. Here, because Amigo provided workers’ compensation insurance to Rodriguez, Rodriguez was not entitled to recover damages against Amigo in his lawsuit. Therefore, Rodriguez non-suited Amigo. However, Rodriguez’s negligence claim against Dicex continued after this court held Rodriguez’s claim was not barred by Labor Code section 93.004(b), and Dicex, in turn, sued Amigo for indemnity and contribution.

*3 In its motion for traditional summary judgment, Amigo relied on Labor Code section 417.4 to argue it was not liable to Dicex for reimbursement of any damages owed by Dicex to Rodriguez. Section 417.004 bars claims by third parties for reimbursement against employers who subscribe to workers’ compensation insurance and provides as follows:

In an action for damages brought by an injured employee ... against a third party liable to pay damages for the injury or death under this chapter that results in a judgment against the third party or a settlement by the third party, the employer is not liable to the third party for reimbursement or damages based on the judgment or settlement unless the employer executed, before the injury or death occurred, a written agreement with the third party to assume the liability.

TEX. LABOR CODE § 417.004 (emphasis added).

Under this statute, a subscribing employer, such as Amigo, has no liability to reimburse or hold another entity, such as Dicex, harmless for a judgment or settlement resulting from injury or death of an employee in the absence of a written agreement, executed prior to the injury, expressly assuming such liability. See Enserch Corp. v. Parker, 794 S.W.2d 2, 7 (Tex. 1990); Whiteco Metrocom, Inc. v. Tex. Utils. Elec. Co., 30 S.W.3d 421, 423 (Tex. App.—Dallas 2000, pet. denied) (“Under this statute, employers who subscribe to workers’ compensation insurance are immune from liability to third parties the employee might sue for their injuries.”). Therefore, Amigo is not required to indemnify Dicex unless the TES agreement is sufficient to overcome this bar. See Remedy Intelligent Staff, Inc. v. Drake All. Corp., 14-16-00241-CV, 2017 WL 4440484, at *4 (Tex. App.—Houston [14th Dist.] Oct. 5, 2017, no pet.) (mem. op.) (“It is undisputed in this case that Drake’s workers’ compensation provider paid benefits to Lopez. Thus, to recover against Drake for ‘the attorney’s fees it has incurred defending Lopez’[s] lawsuit, plus whatever damages it becomes obligated to pay, by judgment or settlement, to Lopez, Remedy must show that Drake executed a written agreement to assume such liability.”).

According to Amigo, nothing in the TES agreement supports the contention that Amigo assumed the liability of Dicex or any other third party. Dicex counters that (1) there exists a question of fact on whether Amigo is obligated to protect Dicex under the agreement and (2) the agreement clearly evidences the parties’ intent that Amigo indemnify Dicex.

1. Is there an executed agreement for indemnity?

Dicex relies only on the following language in the TES agreement to assert its entitlement to indemnity under section 417.004:

INSURANCE COVERAGES:

Commercial General Liability: 2,000,000.

Workers Compensation Insurance: 2,000,000.

CRIME: (Surety Bond): $10,000.

According to Dicex, the purpose of including such insurance coverage in the agreement was to protect Dicex from claims of assigned employees through workers’ compensation insurance, and from claims from third parties for the acts of assigned employees through the commercial general liability insurance, and a $10,000.00 surety bond for criminal acts of those employees concerning the theft of merchandise Dicex handles for its clients. Dicex contends that a “sensical and logical reading of” this coverage was to protect Dicex from any such claims.

Because the TES agreement is a contract, the principles of contract construction govern its interpretation. See Loya v. Loya, 526 S.W.3d 448, 451 (Tex. 2017). Applying these principles, the presence of ambiguities and the interpretation of an unambiguous contract are questions of law that we review de novo. URI, Inc. v. Kleberg Cty., 543 S.W.3d 755, 763 (Tex. 2018). “In construing a contract, we must ascertain and give effect to the parties’ intentions as expressed in the document.” Frost Nat’l Bank v. L & F Distributors, Ltd., 165 S.W.3d 310, 311-12 (Tex. 2005). “We consider the entire writing and attempt to harmonize and give effect to all the provisions of the contract by analyzing the provisions with reference to the whole agreement.” Id. at 312.

A contract is not ambiguous simply because the parties differ on a term’s meaning; the competing definitions must be reasonable for an ambiguity to exist. Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex. 1996). Therefore, “[i]f the written instrument is so worded that it can be given a certain or definite legal meaning or interpretation, then it is not ambiguous and the court will construe the contract as a matter of law.” Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). Furthermore, “surrounding facts and circumstances cannot be employed to ‘make the language say what it unambiguously does not say’ or ‘to show that the parties probably meant, or could have meant, something other than what their agreement stated.’ ” URI, 543 S.W.3d at 757 (citations omitted). “In other words, extrinsic evidence may only be used to aid the understanding of an unambiguous contract’s language, not change it or ‘create ambiguity.’ ” Id. (citations omitted).

Before we consider whether the isolated language on which Dicex relies is sufficient to raise a fact issue, we must examine the TES agreement, which states in full as follows:

BILL-RATES & TERMS:

Amigo Staffing, Inc. will supply Dicex International throughout its operation on a Temporary/Leasing and or long term basis at a 26% Mark up for Warehouse and 24% Clerical for the first 90 days equivalent to 3 months; after this time Warehouse personnel will be at a 25 % Mark up and 16 % Mark-up for Clerical.

Temp to hire will require a term of 120 days completion before transferring to Dicex International.

Note: This Mark up applies on volume from our client; Amigo Staffing, Inc. requires a minimum of (4) hours per employee per day unless employee leaves job-site or customers [sic] cancels order (2) hours in advance.

DIRECT PLACEMENT:

Amigo Staffing, Inc. will provide direct placement services at 8% of the initial starting salary, with a 30 day Guarantee. The services include Criminal Investigation, Previous Employment Verification, Verify Degrees/Licenses, Skills Assessments and Drug Screening.

INSURANCE COVERAGES:

Commercial General Liability: 2,000,000.

Workers Compensation Insurance: 2,000,000.

CRIME: (Surety Bond): $10,000.

DISCLAIMER:

When you require one of our employees to operate a vehicle, regardless of who owns the vehicle, client will insure the vehicle and the employee for any and all liability associated with the operation and/or the control of the vehicle. Further, client agrees to indemnify and hold our employee and Amigo Staffing, Inc., harmless from any and all liability that may arise from the operation and/or control of the vehicle by our employee.

SAFETY IS ALWAYS FIRST:

Please select the personnel Protective Equipment required for Dicex, International. Safety Glasses_ Safety Vests_ Hard Hat_ Safety Boots_

Back Brace_ Safety Gloves_ Hearing Protection_ Dust Mask_

Additional _______

The TES agreement unambiguously requires Amigo to carry certain levels of insurance, including workers’ compensation insurance for its employees such as Rodriguez. However, that requirement alone does not create a question of fact on whether the parties intended Amigo to indemnify Dicex because the agreement contains no express language requiring Amigo to indemnify Dicex. Therefore, Dicex’s contention that the coverage levels as stated in the agreement may be construed as evidencing an intent by Amigo to indemnify Dicex or raising a fact question on whether Amigo agreed to indemnify Dicex is without merit. See Remedy Intelligent Staff, 2017 WL 4440484, at *4 (noting that Remedy’s assertion of an “implied agreement arising out of the course of performance” lacks merit “because by definition an ‘implied agreement arising from a course of performance’ is not an executed written agreement for purposes of section 417.004”).

We conclude that because the agreement does not mention indemnity much less contain an express indemnity clause, it does not satisfy section 417.004’s requirement of “a written agreement with the third party to assume the liability.” As such, the agreement is insufficient to show Amigo expressly assumed liability to indemnify third parties for injuries to its employees. See Lee Lewis Constr., Inc. v. Harrison, 64 S.W.3d 1, 20 (Tex. App.—Amarillo 1999), aff’d, 70 S.W.3d 778 (Tex. 2001) (“Equally clear is that [the agreement] expressly mentions indemnification, the conditions which trigger the duty to indemnify, the party obligated to provide indemnity, and the party to be indemnified.... [Therefore,] ‘the indemnity language in the contract between’ LLC and KK ‘is sufficient to show that ... [KK] expressly assumed liability for injuries to its own employees.’ ”).

2. Conclusion

We conclude Amigo established its entitlement to summary judgment as a matter of law on its defense that it is not liable to Dicex for reimbursement or damages as a result of any judgment or settlement in favor of Rodriguez.3

AMIGO’S NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT

In its no-evidence motion for summary judgment on Dicex’s breach of contract claim, Amigo alleged there was no evidence that (1) Amigo agreed to be contractually liable for all damages resulting to Dicex from an employee’s suit, (2) Amigo was not properly insured against workplace injuries alleged by employees, and (3) Amigo contracted with Dicex for capable, experienced, fully-trained employees or, alternatively, that Amigo failed to provide such employees. On Dicex’s negligent and/or reckless misrepresentation claim, Amigo alleged there was no evidence that: (1) Amigo represented to Dicex that Dicex was protected from assigned employee claims through the application of workers’ compensation insurance and (2) Amigo represented to Dicex that Rodriguez was a capable, experienced, fully-trained forklift operator or, alternatively, that any such representation was untrue or made with reckless disregard. Finally, Amigo alleged there was no evidence Dicex was entitled to contribution against Amigo or that the contract contained any language requiring Amigo to indemnify Dicex.

A. Standard of Review

A party is entitled to a no-evidence summary judgment if, “[a]fter adequate time for discovery, ... there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial.” TEX. R. CIV. P. 166a(i). The trial court must grant a no-evidence motion for summary judgment unless the nonmovant produces evidence raising a genuine issue of material fact. Id. “A genuine issue of material fact exists if more than a scintilla of evidence establishing the existence of the challenged element is produced.” Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). “On the other hand, ‘[w]hen the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence.’ ” Id. at 601 (citations omitted). More than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Id. at 601. In determining whether the nonmovant has produced more than a scintilla of evidence, we view the evidence in the light most favorable to the nonmovant and disregard all contrary evidence and inferences. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003).

B. Breach of Contract

Dicex alleged Amigo breached the contract by (1) failing to provide “the workers’ compensation insurance that was or should have been obtained by Amigo pursuant to their” TES agreement, and (2) by providing a forklift operator (Rodriguez) who lacked adequate experience, capability, and training. To satisfy its burden to produce evidence raising a genuine issue of material fact on its breach of contract claim, Dicex points to the agreement and the affidavit of Alberto Aranda, Dicex’s Director of Quality and Certifications and Human Resources Manager.

1. Failure to provide insurance for Dicex’s benefit

As discussed above, the TES agreement unambiguously states that Amigo will provide certain levels of coverage, including workers’ compensation insurance for its employees. However, nowhere in the agreement does Amigo contractually agree to include Dicex as an insured or otherwise protect Dicex from suit. Therefore, the TES agreement is insufficient to raise a genuine issue of fact. Aranda’s affidavit likewise is insufficient to raise a genuine issue of fact because it is conclusory. His affidavit states:

That [TES] agreement expressly provided, as part of the markup fees paid to Amigo Staffing, Inc., insurance coverage for commercial general liability and workers compensation insurance of $2,000,000.00 for each of such insurance policies, as well as surety bond of $10,000.00 for criminal acts of the employees, with theft of client’s merchandise in mind for such surety bond. The obvious purpose of the inclusion of such insurance coverage in the agreement, as discussed in negotiations, was to protect Dicex International, Inc., from claims by employees through workers compensation insurance, and from commercial claims from third parties such as clients for their merchandise, through commercial general liability insurance. It was so represented by Amigo Staffing, Inc., and pursuant to the Agreement it was incumbent upon Amigo Staffing, Inc., to ensure that Dicex International, Inc., was fully covered and protected. The only disclaimer was for vehicle related liability to third parties for harm caused by Amigo Staffing, Inc.’s employees in the scope of employment with Dicex International, Inc., for which Dicex had to obtain vehicle liability insurance, and indemnify Amigo Staffing, Inc., from any such claims by third parties. [Emphasis added.]

Affidavits containing unsubstantiated factual or legal conclusions that are not supported by the evidence are not competent summary judgment proof because they are not credible or susceptible to being readily controverted. See Ryland Grp. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996) (per curiam). Therefore, Aranda’s conclusion that the TES agreement was intended to protect Dicex is not competent summary judgment evidence.

2. Failure to provide employees with adequate experience, capability, and training

In its response to Amigo’s no-evidence motion for summary judgment, Dicex alleged as follows:

The fact is that it is [Rodriguez who] is claiming against Dicex that he was improperly trained. That claim is before the Court and the Court can take judicial notice of it. Certainly, Dicex, as the defendant, is controverting and disagrees with that claim. Nonetheless and to the extent Dicex is held liable for such claim by [Rodriguez], it was Amigo’s contractual duty to Dicex to assess [Rodriguez’s] skills as a forklift operator before being assigned to Dicex. The agreement states what it states, and the outcome of Plaintiff’s claims against Dicex will be what will be.

Other than alleging that Rodriguez contends he was not properly trained, Dicex points to no evidence (1) that Amigo contractually agreed to verify Rodriguez’s experience or to assess his skills or (2) that Rodriguez was, in fact, not properly trained.

C. Misrepresentation Claims

Dicex alleged Amigo made the following misrepresentations: (1) Dicex was protected from assigned employee claims through the application of workers’ compensation insurance and (2) Rodriguez was an experienced, capable, and fully-trained forklift operator. In response to the no-evidence motion, Dicex merely alleged (1) that “[t]he agreement clearly states that workers’ compensation insurance would be provided, and Alberto Aranda attests that such was discussed and agreed during the negotiation of the [TES] agreement” and (2) “[w]hat is undisputed is that there is an agreement that bounds Amigo to assess skill for assigned employees such as [Rodriguez], and if it turns out that [Rodriguez] was not skilled enough, then Amigo incurred [sic] in a misrepresentation by assigning [Rodriguez] as a forklift operator.” For the same reasons as above, we conclude Dicex’s reliance on the TES agreement and Aranda’s affidavit are insufficient to raise a genuine issue of fact.

D. Conclusion

On this record, we conclude Dicex failed to satisfy its burden in response to Amigo’s no-evidence motion for summary judgment on Dicex’s claims. Accordingly, the trial court properly rendered a no-evidence summary judgment on Dicex’s causes of action for breach of contract and misrepresentation.

CONCLUSION

For the reasons stated above, we conclude the trial court properly rendered a take-nothing summary judgment in favor of Amigo on all of Dicex’s causes of action.4

Footnotes

1

Specifically, Dicex argued it produced summary judgment evidence showing that at the time of the injury, Amigo was a TES that carried workers’ compensation insurance covering Rodriguez, and Dicex was Amigo’s client pursuant to the TES agreement. Therefore, according to Dicex, “under Chapter 93 of the Texas Labor Code, the workers’ compensation policy held by Amigo Staffing covered any injuries sustained by Rodriguez during his assignment with Dicex, and any action pursued against Dicex was barred by the exclusive remedy provision of the” Act. Id. at *2.

2

The Rodriguez court affirmed the summary judgment in favor of Panther and noted the record did not indicate the disposition of Rodriguez’s claims against Ellis or Daly. Id. at *11 & n.1.

3

Because of our disposition, we need not address whether the trial court properly rendered a traditional summary judgment in favor of Amigo on its assertion that Dicex’s misrepresentation claim is barred by the statute of limitations. See TEX. R. APP. P. 47.1 (“The court of appeals must hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal.”).

4

Dicex asserted it was entitled to contribution against Amigo for Amigo’s percentage of responsibility for Rodriguez’s damages pursuant to Chapter 33 of the Texas Civil Practices and Remedies Code. On appeal, Dicex does not challenge the trial court’s summary judgment in favor of Amigo on this claim.

Supreme Court of Texas.

IN RE STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Terecina Shahan, Relators

In re State Farm Mutual Automobile Insurance Company and Todd Joseph Dauper, Relators

No. 19-0791, No. 19-0792

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Argued December 2, 2020

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OPINION DELIVERED: March 19, 2021

ON PETITION FOR WRIT OF MANDAMUS

Attorneys & Firms

Beth D. Bradley, Dallas, Matthew P. Rigney, Lisa Ann Songy, for Amici Curiae American Property Casualty Insurance Association, Insurance Council of Texas.

Armando De Diego, Melissa A. Lorber, Austin, for Relators Shahan, Terecina, State Farm Mutual Automobile Insurance Company.

Carlos Cortez, Meghana Wadhwani, Matthew J. Kita, Dallas, for Real Party in Interest.

Opinion

Justice Blacklock delivered the opinion of the Court.

These original proceedings arise from suits by holders of underinsured motorist (“UIM”) insurance seeking recovery against their insurers following traffic accidents. Plaintiffs in such cases often bring claims for breach of their insurance policies as well as statutory, extracontractual claims authorized by the Insurance Code. The common practice has been to sever and abate the Insurance Code claims while an initial trial is conducted on the breach-of-contract claim to determine whether the underinsured motorist was liable for the accident and, if so, the amount of damages suffered by the insured. A plaintiff who succeeds in this first phase of the case may then proceed to litigate its Insurance Code claims in light of the result of the initial trial.

A wrinkle in the cases before us is that the insureds did not sue for breach of their insurance policies. Although they seek recovery of the amount they claim to be owed under their policies, they brought only extracontractual, Insurance Code claims. They contend that because they brought only statutory claims, and because there are no breach-of-contract claims to sever and try first, no bifurcation of trial is required. As explained below, we disagree.

Under USAA Texas Lloyds v. Menchaca, 545 S.W.3d 479 (Tex. 2018), a plaintiff seeking recovery of benefits owed under an insurance policy must first establish his entitlement to policy benefits as a contractual matter before he can recover them as damages for an Insurance Code claim. As a result, although the plaintiffs’ claims in these cases are not labeled breach of contract, they nevertheless must establish State Farm’s liability under their insurance policies as a prerequisite to recovery on their Insurance Code claims. Just as an initial “car crash” trial is typically required to determine the underinsured motorist’s liability and the amount of damages when the insured brings both breach-of-contract and Insurance Code claims, insureds who bring only Insurance Code claims seeking policy benefits as damages must also succeed in an initial “car crash” trial in order to lay the predicate for their statutory claims. We therefore conditionally grant the petitions for writ of mandamus and direct the trial courts to proceed in accordance with this opinion.

I.

BACKGROUND

Real Parties in Interest Al Dodds and Alexander Nicastro have UIM insurance with State Farm. The same counsel represents Nicastro and Dodds in this Court.

Nicastro was injured when Dominique Smith allegedly swerved into Manuel Reyes who, in turn, collided with Nicastro. Nicastro seeks to recover “past medical expenses and anticipated future medical expenses totaling up to $438,247.00.” According to State Farm, Nicastro provided documentation of $11,747 in incurred medical costs. Nicastro requested State Farm approve his acceptance of a $30,000 settlement with Smith’s insurer. State Farm obliged and told Nicastro he “has been fully indemnified” for his medical expenses. Nicastro then sought UIM benefits from State Farm. His UIM policy limit is $100,000, but State Farm refused to pay anything.

Dodds was injured when Jose Cojchamale allegedly ran a red light and struck his vehicle. The impact caused Dodds to strike another vehicle. Dodds seeks to recover past medical expenses of $45,668.92 and future medical expenses of $212,250.00, totaling $257,918.92. With State Farm’s approval, Dodds accepted a $30,000 settlement from Cojchamale’s insurer, the maximum amount of Cojchamale’s policy. Dodds then sought UIM benefits from State Farm, which paid Dodds an additional $18,190.41 without an explanation for the discrepancy between the amount paid and the amount requested. Dodds’ UIM policy limit is $50,000.

Nicastro and Dodds both sued State Farm and two State Farm adjusters, who they allege failed “to attempt in good faith to effectuate a prompt, fair, and equitable settlement of a claim with respect to which the insurer’s liability has become reasonably clear,” TEX. INS. CODE § 541.060(a)(2)(A), and failed to “promptly provide to a policyholder a reasonable explanation of the basis in the policy, in relation to the facts or applicable law, for the insurer’s denial of a claim or offer of a compromise settlement of a claim,” id. § 541.060(a)(3). Neither Nicastro nor Dodds sued State Farm for breach of his UIM policy.

Dodds’ UIM policy covers amounts he is “legally entitled to recover” from an underinsured motorist when “the total limits of insurance and self-insurance for bodily injury liability from all sources are less than the amount needed to compensate the insured for bodily injury damages.” Nicastro’s policy covers amounts he is “legally entitled to recover” from an underinsured motorist whose limit of liability “is not enough to pay the full amount the covered person is legally entitled to recover as damages.” As damages for their Insurance Code claims, Nicastro and Dodds both seek the amounts State Farm allegedly should have paid them under their UIM policies.

In both cases, State Farm filed motions for bifurcated trial under Rule 174(b). State Farm argued that before its liability for Insurance Code claims can be determined, an initial trial is necessary to establish the liability and underinsured status of the other motorists. The matters to be determined in this initial trial, State Farm contends, are necessary predicates to the plaintiffs’ statutory claims. As State Farm sees it, the plaintiffs must obtain a judicial determination that the third parties are liable for their injuries and are underinsured motorists before the plaintiffs can recover on their Insurance Code claims. Nicastro and Dodds opposed State Farm’s motions, arguing that (1) they may recover UIM benefits as extracontractual damages without first establishing that they are “legally entitled to recover” from the underinsured motorists if they do not allege a breach-of-contract claim, and (2) this Court’s decision in USAA Texas Lloyds v. Menchaca, 545 S.W.3d 479 (Tex. 2018), overruled Brainard v. Trinity Universal Insurance Co., 216 S.W.3d 809 (Tex. 2006), and changed well-established principles governing UIM claims.

The trial courts denied State Farm’s motions. State Farm petitioned for mandamus relief in the Fifth Court of Appeals, arguing the trial courts abused their discretion in denying State Farm’s motions to bifurcate. The court of appeals denied the petitions without substantive explanation. State Farm filed mandamus petitions in this Court.

II.

STANDARD OF REVIEW

Mandamus is an extraordinary remedy that will issue “only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no other adequate remedy by law.” Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding) (quoting Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding)). Generally, mandamus relief is unavailable “to correct incidental trial court rulings when there is a remedy by appeal.” In re Entergy Corp., 142 S.W.3d 316, 320 (Tex. 2004) (orig. proceeding) (per curiam). A trial court abuses its discretion when its “ruling is arbitrary and unreasonable, made without regard for guiding legal principles or supporting evidence.” In re Nationwide Ins. Co. of Am., 494 S.W.3d 708, 712 (Tex. 2016) (orig. proceeding). We determine the adequacy of an appellate remedy “by balancing the benefits of mandamus review against its detriments.” In re Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex. 2008) (orig. proceeding).

III.

THE INSURANCE CODE CLAIMS

Nicastro and Dodds sued State Farm for violations of sections 541.060(a)(2)(A) and (a)(3) of the Insurance Code. An insurer violates section 541.060(a)(2)(A) if it “fail[s] to attempt in good faith to effectuate a prompt, fair, and equitable settlement of a claim with respect to which the insurer’s liability has become reasonably clear.” An insurer violates section 541.060(a)(3) if it “fail[s] to promptly provide to a policyholder a reasonable explanation of the basis in the policy, in relation to the facts or applicable law, for the insurer’s denial of a claim or offer of a compromise settlement.” As an initial matter, the parties disagree about what the plaintiffs must show to recover on their Insurance Code claims. We must resolve that disagreement before assessing whether State Farm is entitled to the bifurcated trials it seeks.

State Farm contends a UIM insurer has no obligation to pay policy benefits as damages for Insurance Code claims unless the insured first establishes the insurer’s liability under the UIM policy. To establish that liability, State Farm argues, the insured must obtain a judicial determination that the other motorist is liable for the crash and has insurance coverage insufficient to cover the insured’s damages. Nicastro and Dodds disagree. They contend State Farm is liable to them if it violates the Insurance Code, irrespective of whether they can prove entitlement to policy benefits. They argue that to succeed on their Insurance Code claims they must only show that (1) State Farm failed to offer them fair settlements when its liability became “reasonably clear,” or (2) State Farm failed to provide reasonable explanations for its denials of the claims or offers of compromise settlements. TEX. INS. CODE §§ 541.060(a)(2)(A), (a)(3).

In Menchaca,1 this Court recognized two paths an insured may take to establish the damages caused by an insurer’s violation of the Insurance Code: either the insured establishes (1) “a right to receive benefits under the policy” or (2) “an injury independent of a right to benefits.” 545 S.W.3d at 500. Under the first path, if an insured “establishes a right to receive benefits under the insurance policy [he] can recover those benefits as ‘actual damages’ under the [Insurance Code] if the insurer’s statutory violation causes the loss of benefits.” Id. at 495. And under the second path, “if an insurer’s statutory violation causes an injury independent of the insured’s right to recover policy benefits, the insured may recover damages for that injury even if the policy does not entitle the insured to receive benefits.” Id. at 499. As Menchaca made clear, there is no alternative to these two pathways. “An insured cannot recover any damages based on an insurer’s statutory violation if the insured had no right to receive benefits under the policy and sustained no injury independent of a right to benefits.” Id. at 489.

The plaintiffs contend this two-pronged framework is limited to homeowners’ insurance claims like the one in Menchaca, but that is not the case. The dual pathway outlined in Menchaca emerges from a line of cases that includes UIM cases and does not distinguish between varieties of insurance policies. See, e.g., Provident Am. Ins. Co. v. Castañeda, 988 S.W.2d 189, 198 (Tex. 1998) (addressing damages recoverable if an insurer fails to adequately investigate a health insurance policy claim); Republic Ins. Co. v. Stoker, 903 S.W.2d 338, 341 (Tex. 1995) (recognizing the possibility an insurer may cause injury independent of UIM policy claim when denying the claim); Aranda v. Ins. Co. of N. Am., 748 S.W.2d 210, 213 (Tex. 1988) (developing test to assess whether insurer’s denial of insurance claims was in “good faith” in workers’ compensation context), overruled by Tex. Mut. Ins. Co. v. Ruttiger, 381 S.W.3d 430 (Tex. 2012).

A.

INDEPENDENT INJURY

Relying on Menchaca’s second path, Nicastro and Dodds allege State Farm caused them independent injuries by violating the Insurance Code. We continue to recognize “the possibility that in denying [a] claim, the insurer may commit some act, so extreme, that would cause injury independent of the policy claim.” Stoker, 903 S.W.2d at 341. To establish “injury independent of the policy claim,” however, Nicastro and Dodds must show their “damages are truly independent of [their] right to receive policy benefits.” Menchaca, 545 S.W.3d at 500. In other words, to recover under an independent-injury theory, the insureds must establish that State Farm’s statutory violations caused an injury apart from State Farm’s failure to pay as much as the insureds believe they should have been paid under their UIM policies.

Here, however, the only injury Nicastro and Dodds assert is State Farm’s failure to adequately pay them under their UIM policies. They seek, as damages for their Insurance Code claims, the amount they believe State Farm should have offered or paid under the policies. This is precisely the theory of recovery Menchaca foreclosed in the absence of a right to policy benefits: “When an insured seeks to recover damages that are predicated on, flow from, or stem from policy benefits, the general rule applies and precludes recovery unless the policy entitles the insured to those benefits.” Id.

Nicastro and Dodds emphasize that their claims under the Insurance Code are not premised on the denial of benefits. Instead, they are premised on the failure to offer a reasonable settlement and the failure to explain the denial of benefits. True, the claims are premised on State Farm’s violations of the Insurance Code, not its violations of the UIM policies. But as explained in Menchaca and prior cases, when it comes to damages, the question is not whether the insured’s claims are independent of the right to receive policy benefits. The question is whether the alleged “damages are truly independent of the insured’s right to receive policy benefits.” Id. at 499–500 (emphasis added); see also Castañeda, 988 S.W.2d at 198 (“[N]one of the actions or inactions of Provident American was the producing cause of any damage separate and apart from those that would have resulted from a wrongful denial of the claim.”).2

Again, the only damages claimed by Nicastro and Dodds are predicated on State Farm’s obligation to pay them under their UIM policies. Said otherwise, the insureds’ theory of damages is that if State Farm had followed the Insurance Code, it would have paid more in UIM benefits than it did. These are not “damages [that] are truly independent of the [ ] right to receive policy benefits.” Id. To the contrary, the insureds’ entitlement to these damages is entirely predicated on their entitlement to policy benefits. They assert no injuries independent of the denial or underpayment of benefits. Their statutory claims are merely a means to recoup damages in the amount of a reasonable settlement offer under the policies; they are not “truly independent” of Nicastro’s and Dodds’ rights to receive policy benefits. See id. at 499–500. As a result, the insureds cannot recover for State Farm’s alleged Insurance Code violations under an “independent-injury” theory.3

B.

RIGHT TO RECEIVE BENEFITS UNDER THE POLICY

Because the insureds do not allege “damages [that] are truly independent of the insured’s right to receive policy benefits,” they must establish their rights to policy benefits in order to recover on their Insurance Code claims. Id. Establishing a right to UIM policy benefits, however, is not always a straightforward enterprise. As this Court previously observed, a “UIM contract is unique because, according to its terms, benefits are conditioned upon the insured’s legal entitlement to receive damages from a third party.” Brainard, 216 S.W.3d at 818.

This “unique” aspect of UIM claims arises from both the Insurance Code and the terms of UIM policies. The Insurance Code requires that UIM coverage must:

provide for payment to the insured of all sums which he shall be legally entitled to recover as damages from owners or operators of underinsured motor vehicles because of bodily injury or property damage in an amount up to the limit specified in the policy, reduced by the amount recovered or recoverable from the insurer of the underinsured motor vehicle.

TEX. INS. CODE § 1952.106 (emphasis added). The policies at issue here employ similar “legally entitled to recover” language. Under both the Insurance Code and these policies, State Farm “is obligated to pay damages which the insured is ‘legally entitled to recover’ from the underinsured motorist.” Brainard, 216 S.W.3d at 818. In Brainard, we interpreted this language to mean that an “insurer’s contractual obligation to pay benefits does not arise until liability and damages are determined.” Id. Thus, in order to establish State Farm’s liability to them under their UIM policies—as they must to recover on their Insurance Code claims—Nicastro and Dodds must first obtain determinations of the third-party drivers’ liability and the amount of damages.

With this legal background in mind, we must decide whether State Farm is entitled to bifurcated trials, which would consist of (1) initial “car crash” trials to determine the underinsured motorists’ liabilities and therefore State Farm’s liability under the UIM policies and, if the insureds succeed at the initial trials, (2) trials of the Insurance Code claims to determine whether State Farm violated its statutory obligations. State Farm urges us to follow the practice of the courts of appeals, which routinely require bifurcation of trial in cases, like these two, where the insurer’s liability for statutory claims is predicated on its liability for breach of the UIM policy. See, e.g., In re Colonial Cnty. Mut. Ins. Co., No. 01-19-00391-CV, 2019 WL 5699735, at *5 (Tex. App.—Houston [1st Dist.] Nov. 5, 2019, orig. proceeding) (per curiam) (mem. op.) (ordering the trial court to abate the severed statutory extracontractual claims until resolution of breach of contract suit).4

We agree with the many court of appeals decisions holding that “extra-contractual claims must be [bifurcated] until the underinsured motorist breach of contract claim is determined.” In re Allstate Fire & Cas. Ins. Co., No. 12-17-00266-CV, 2017 WL 5167350, at *4 (Tex. App.—Tyler Nov. 8, 2017, orig. proceeding) (mem. op.). In the unique context of UIM litigation, this common bifurcation process makes sense for at least two reasons.

First, bifurcation tends to preserve judicial resources. The plaintiffs’ Insurance Code claims cannot be resolved without first determining whether State Farm has a contractual duty to pay UIM benefits. “The rationale for requiring [bifurcation] of these types of [statutory] claims is that they may be rendered moot by a determination of underlying [non-]liability.” Id. The insureds’ statutory claims need not be considered at all if State Farm has no duty to pay under their policies. Like any other litigant, “[i]nsurers have a substantial right not to undergo the expense of litigating and conducting discovery on issues that ultimately may be unnecessary because of the result of the underlying tort case.” In re Colonial Cnty. Mut. Ins. Co., 2019 WL 5699735, at *5; see also In re Germania Ins. Co., 2018 WL 1904911, at *4 (“If the causes were not severed, Germania would be required to put forth the effort and expense of conducting discovery, preparing for trial, and conducting voir dire on bad faith and other extra-contractual claims that could be rendered moot by the portion of the trial relating to breach of contract for uninsured motorist benefits.”).

Second, bifurcation of trial is proper because evidence of the insurer’s settlement offer may be admissible in one phase of the trial but inadmissible in the other. When determining whether an insurer has breached its UIM policy by failing to pay, courts frequently exclude evidence of a settlement offer because the offer “creates prejudice” by suggesting the insurer has already admitted some liability. In re State Farm Mut. Auto. Ins. Co., 395 S.W.3d at 234; TEX. R. EVID. 408.5 On the other hand, in the trial of bad-faith claims, the settlement offer is generally admissible as evidence of the insurer’s good-faith (or bad-faith) efforts to resolve the claim. See Liberty Nat’l Fire Ins. Co. v. Akin, 927 S.W.2d 627, 630 (Tex. 1996).6 “Absent [bifurcation], an insurer is presented with a ‘Catch-22’ in that its decision to admit or exclude evidence of a settlement offer jeopardizes the successful defense of the other [issue].” In re State Farm Mut. Auto. Ins. Co., 395 S.W.3d at 234. “[I]n this situation, the trial court can only reach one decision which adequately protects the parties’ rights and that is to order [bifurcation] of the [issues].” In re Am. Nat’l Mut. Ins. Co., 384 S.W.3d at 435.

We agree with the consensus view of the courts of appeals on this point. Requiring State Farm to litigate its liability for UIM policy benefits alongside its liability for extracontractual claims would unduly prejudice the insurer and amounts to an abuse of discretion by the trial court. See id. at 434 (“[A] majority of intermediate courts of appeals have concluded that it is an abuse of discretion for a trial court to refuse to grant a severance of contractual claims from extra-contractual claims when an offer of settlement has been made by the insurer.”).

Of course, all the court of appeals cases cited above arise from cases involving both breach-of-contract claims and Insurance Code claims. Nicastro and Dodds argue that their cases should be treated differently because they brought only Insurance Code claims. As a result, they contend, there is no breach-of-contract claim to “sever” and no claim to “abate.” Even so, the logic of the commonly applied sever-and-abate rule applies with equal force here, although the procedural machinations may be slightly different. While Nicastro and Dodds pleaded their cases unlike past UIM plaintiffs, the showings they must make in order to recover are the same showings required of other UIM plaintiffs who pleaded both breach-of-contract and statutory claims and were required to try those claims separately.

Texas Rule of Civil Procedure 174(b) authorized the trial courts to bifurcate the trials of the insureds’ Insurance Code claims, as requested by State Farm. The rule states: “The court in furtherance of convenience or to avoid prejudice may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues.” TEX. R. CIV. P. 174(b) (emphasis added). Thus, the trial courts could have ordered separate trials on the predicate issues of the insureds’ entitlements to benefits under their UIM policies. Nicastro and Dodds need not “add causes of action to [the] ongoing litigation,” as they contend, for the logic of the severance-and-abatement rule to apply to bifurcation in their cases. Nor must they “file lawsuit[s] they do not want to bring.” State Farm’s motions sought bifurcation of the trials of the Insurance Code claims, pursuant to Rule 174(b), which would not require the plaintiffs to amend their pleadings or bring unwanted claims.

“When all of the facts and circumstances of the case unquestionably require a separate trial to prevent manifest injustice, and there is no fact or circumstance supporting or tending to support a contrary conclusion, and the legal rights of the parties will not be prejudiced thereby, there is no room for the exercise of discretion.” Womack v. Berry, 156 Tex. 44, 291 S.W.2d 677, 683 (1956). Because the Insurance Code claims at issue here require Nicastro and Dodds to make the very same showings as the many other plaintiffs whose UIM claims are routinely subject to bifurcated trials, the trial courts abused their discretion by denying State Farm’s motions to bifurcate trial under Rule 174(b).

IV.

ADEQUATE APPELLATE REMEDY

State Farm argues it lacks an adequate appellate remedy due to the time and money it would waste waiting on the eventual reversal of improperly conducted proceedings. Nicastro and Dodds respond that State Farm has an adequate remedy by appeal: “It can pursue discovery, attempt to prove that it did not violate the Insurance Code, and seek summary judgment, a declaratory judgment, prevail at trial, and if it fails at any of these options, it can always challenge the sufficiency of the evidence (or any other adverse ruling) in a traditional appeal.” Real Party in Interest’s Response at 2–3. We agree with State Farm.

When a bifurcated trial is denied in these circumstances, the insurer lacks an adequate appellate remedy for the “time and money utterly wasted enduring eventual reversal of improperly conducted proceedings.” In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004) (orig. proceeding). We agree with the many courts of appeals that have found mandamus relief to be the only adequate remedy in similar cases.7

V.

CONCLUSION

We conditionally grant State Farm’s petitions for writ of mandamus and direct the trial courts to bifurcate the trials of the Insurance Code claims as described herein. We are confident the trial courts will comply, and the writs will issue only if they do not.

Footnotes

1

Understanding Menchaca’s precedential status requires careful examination of the different sections of the Court’s opinion and the alignment of votes for each. With only eight Justices sitting, some parts of the opinion—sections III.B through III.G—garnered only a plurality of four or fewer votes. These portions of the opinion do not represent the view of a majority of the Court at the time and are therefore not binding precedent of the Court. See Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex. 1996) (“Plurality opinions are not binding precedent of this Court.”); Univ. of Tex. Med. Branch at Galveston v. York, 871 S.W.2d 175, 177 (Tex. 1994) (“Because the principles of law involved have not been agreed upon by a majority of the sitting court, the plurality opinion is not authority for determination of other cases, either in this Court or lower courts.”). A majority of the Court, however, joined sections I, II, and III.A of Menchaca. These portions of Menchaca represent the opinion of a majority of the Court at the time, and they carry the full weight of the precedent of this Court. The citations to Menchaca contained in today’s opinion all come from portions of Menchaca that unquestionably represent the precedent of this Court.

Section II of Menchaca—which garnered seven votes—articulates five interlocking legal principles applicable to insurance litigation, several of which have application in today’s cases. See 545 S.W.3d at 486–503. Those principles are: (1) “an insured cannot recover policy benefits for an insurer’s statutory violation if the insured does not have a right to receive benefits under the policy”; (2) “an insured who establishes a right to receive benefits under an insurance policy can recover those benefits as ‘actual damages’ under the statute if the insurer’s statutory violation causes the loss of the benefits”; (3) “an insured can recover benefits as actual damages under the Insurance Code even if the insured has no right to those benefits under the policy, if the insurer’s conduct caused the insured to lose that contractual right”; (4) “an insurer’s extra-contractual liability is ‘distinct’ from its liability for benefits under the insurance policy”; and (5) “[a]n insured cannot recover any damages based on an insurer’s statutory violation unless the insured establishes a right to receive benefits under the policy or an injury independent of a right to receive benefits.” Id. at 490–502 (cleaned up).

2

Quoting Menchaca, Nicastro and Dodds argue “an insured need not prevail on a separate breach-of-contract claim to recover policy benefits for a statutory violation.” 545 S.W.3d at 504. They neglect, however, to cite another passage from Menchaca that clarifies this holding: “While an insured cannot recover policy benefits for a statutory violation unless the jury finds that the insured had a right to benefits under the policy, the insured does not also have to prevail on a separate breach-of-contract claim based on the insurer’s failure to pay those benefits.” Id. at 494. Under Menchaca, Nicastro and Dodds cannot simply allege statutory claims under the Insurance Code and thereby bypass the requirement that they establish their rights to receive benefits under their policies.

3

Nicastro and Dodds correctly observe that State Farm’s obligations under the Insurance Code are triggered as soon as its liability becomes “reasonably clear.” See TEX. INS. CODE § 541.060(a)(2)(A). From this premise, they reason that they need not show State Farm’s ultimate liability under the policies in order to establish that at some point its liability had become “reasonably clear.” State Farm responds that its liability to pay a UIM claim does not become “reasonably clear” until “the insured obtains a judgment establishing the liability and underinsured status of the other motorist.” Brainard, 216 S.W.3d at 818. We need not resolve that dispute, however. Regardless of when the insurer’s statutory duty to attempt a good-faith settlement arises, Menchaca establishes that the insured does not suffer legally cognizable damages owing to the insurer’s breach of that duty unless (1) he was actually owed benefits under the policy or (2) the refusal to settle causes him damages independent of his entitlement to policy benefits. 545 S.W.3d at 500.

4

See also In re Germania Ins. Co., No. 13-18-00102-CV, 2018 WL 1904911, at *5 (Tex. App.—Corpus Christi–Edinburg Apr. 23, 2018, orig. proceeding) (mem. op.) (severing and abating extracontractual claims pending resolution of contract claims); In re State Farm. Mut. Auto Ins. Co., 395 S.W.3d 229, 240–41 (Tex. App.—El Paso 2012, orig. proceeding) (ordering trial court to sever and abate extracontractual claims pending determination of contract claim); In re Am. Nat’l Cnty. Mut. Ins. Co., 384 S.W.3d 429, 439 (Tex. App.—Austin 2012, orig. proceeding) (same); In re State Farm Mut. Auto. Ins. Co., 553 S.W.3d 557, 565 (Tex. App.—San Antonio 2018, orig. proceeding) (finding the “trial court erred by not granting the abatement” of extracontractual claims).

5

See also Akin, 927 S.W.2d at 630 (“[T]he insurer would be unfairly prejudiced by having to defend the contract claim at the same time and before the same jury that would consider evidence that the insurer had offered to settle the entire dispute.”); In re Progressive Cas. Ins. Co., No. 12-20-00220-CV, 2020 WL 6065933, at *3 (Tex. App.—Tyler Oct. 14, 2020, orig. proceeding) (mem. op.); In re Old Am. Cnty. Mut. Fire Ins. Co., No. 13-11-00412-CV, 2012 WL 506570, at *5 (Tex. App.—Corpus Christi–Edinburg Feb. 16, 2012, orig. proceeding); In re Travelers Lloyds of Tex. Ins. Co., 273 S.W.3d 368, 374 (Tex. App.—San Antonio 2008, orig. proceeding); In re Allstate Ins. Co., No. 06-05-00051-CV, 2005 WL 1114640, at *2 (Tex. App.—Texarkana May 12, 2005, orig. proceeding) (mem. op.).

6

See also In re Miller, 202 S.W.3d 922, 926 (Tex. App.—Tyler 2006, orig. proceeding); In re Trinity Universal Ins. Co., 64 S.W.3d 463, 468 (Tex. App.—Amarillo 2011, orig. proceeding); Tex. Farmers Ins. Co. v. Stem, 927 S.W.2d 76, 80 (Tex. App.—Waco 1996, orig. proceeding); State Farm Mut. Auto. Ins. Co. v. Wilborn, 835 S.W.2d 260, 262 (Tex. App.—Houston [14th Dist.] 1992, no writ).

7

See, e.g., In re Germania Ins. Co., 2018 WL 1904911, at *2; In re Farmers Tex. Cnty. Mut. Ins. Co., 509 S.W.3d 463, 468 (Tex. App.—Austin 2015, orig. proceeding); In re Allstate Cnty. Mut. Ins. Co., 447 S.W.3d 497, 504 (Tex. App.—Houston [14th Dist.] 2014, orig. proceeding); In re United Fire Lloyds, 327 S.W.3d 250, 256 (Tex. App.—San Antonio 2010, orig. proceeding).

United States District Court, N.D. Texas, Dallas Division.

OLENYNIS VEGA, Plaintiff,

v.

TYSON FOODS, INC., Defendant.

Civil Action No. 3:19-CV-1647-L

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03/14/2021

Sam A. Lindsay, United States District Judge

MEMORANDUM OPINION AND ORDER

Before the court is Defendant Tyson Foods, Inc.’s Motion for Summary Judgment (Doc.

16), filed July 16, 2020. After considering the motion, briefs, admissible summary judgment evidence, and applicable law, the court grants Defendant Tyson Foods, Inc.’s Motion for Summary Judgment (Doc. 16), and dismisses with prejudice this action.

I. Factual and Procedural Background

Oleynis Vega (“Plaintiff” or “Ms. Vega”) originally brought this personal injury action against Tyson Foods, Inc. (“Defendant” or “Tyson”) in the 160th Judicial District Court, Dallas County, Texas, on May 14, 2019. On July 10, 2019, the action was removed to federal court based on diversity jurisdiction. In Plaintiff’s Original Petition, Ms. Vega asserts causes of action for negligence and premises liability, and she seeks damages in the form of past and future: medical expenses, pain and suffering, mental anguish, physical impairment, and lost wages, in addition to prejudgment and postjudgment interest, and costs of court. Her claims arise from an on-the-job injury she sustained to her left hand on May 16, 2017, while working for Tyson as an assembly line meat packaging operator.

On July 16, 2020, Tyson moved for summary judgment on its affirmative defense of waiver. Tyson contends that it is entitled to judgment on Plaintiff’s claims based on her election to participate in Tyson’s Workplace Injury Settlement Program (“WISP”), pursuant to which “an employee automatically receives Basic Benefits and may elect to become a Participant in the program by signing the WISP Acceptance and Waiver (“Waiver”) in order to receive Comprehensive Benefits if the employee sustains an injury in the course and scope of [his or her] employment.” Def.’s Mot. 1-2; Def.’s App. 2-3. Tyson asserts that, by signing the Waiver on June 14, 2017, Ms. Vega elected to become a Participant in WISP with respect to the on-the-job injuries she sustained on May 16, 2017 (“the Incident”) and is bound by its terms. Tyson argues that it has presented sufficient evidence to establish that the Waiver signed by Ms. Vega is enforceable under the Texas Labor Code, such that Ms. Vega settled and released all personal injury claims against Tyson arising out of the Incident and “waived any cause of action at common law or under any statute to recover damages for personal injuries, occupational disease, or death sustained in the course and scope of employment, including but not limited to claims based on negligent and grossly negligent acts or omissions.” Def.’s Mot. 2.

Plaintiff does not address Tyson’s contentions regarding the applicability of the Texas Labor Code to the Waiver in this case or whether its evidence is sufficient to establish the validity of the Waiver under the Texas Labor Code. Plaintiff, instead, focuses on whether the Waiver is unenforceable on two other grounds. In this regard, Plaintiff asserts that the Waiver she signed following the Incident does not preclude her from bringing the claims asserted in this case because it: (1) was procured by fraud; and (2) is not supported by valid consideration.

Tyson argues that Ms. Vega’s defenses to its waiver argument based on fraudulent inducement and lack of consideration are not supported by Texas law or competent evidence. Tyson, therefore, contends that these defenses are insufficient to raise a genuine dispute of material fact regarding the enforceability of the Waiver. Tyson also objects to and moves to strike Plaintiff’s affidavit on the ground that it is a “sham affidavit” that conflicts with her prior deposition testimony.

II. Motion for Summary Judgment Standard

Summary judgment shall be granted when the record shows that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a material fact is “genuine” if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the court is required to view all facts and inferences in the light most favorable to the nonmoving party and resolve all disputed facts in favor of the nonmoving party. Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005). Further, a court “may not make credibility determinations or weigh the evidence” in ruling on a motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 254-55.

Once the moving party has made an initial showing that there is no evidence to support the nonmoving party’s case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine dispute of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). On the other hand, “if the movant bears the burden of proof on an issue, either because he is the plaintiff or as a defendant he is asserting an affirmative defense, he must establish beyond peradventure all of the essential elements of the claim or defense to warrant judgment in his favor.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986) (emphasis in original). “[When] the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine [dispute] for trial.’ ” Matsushita, 475 U.S. at 587. (citation omitted). Mere conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994).

The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his or her claim. Ragas, 136 F.3d at 458. Rule 56 does not impose a duty on the court to “sift through the record in search of evidence” to support the nonmovant’s opposition to the motion for summary judgment. Id.; see also Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 & n.7 (5th Cir. 1992). “Only disputes over facts that might affect the outcome of the suit under the governing laws will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248. Disputed fact issues that are “irrelevant and unnecessary” will not be considered by a court in ruling on a summary judgment motion. Id. If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.

III. Discussion

A. Waiver

Waiver is an affirmative defense. Fed. R. Civ. P. 8(c)(1). As the party alleging waiver, Tyson has the burden of proof. JM Walker LLC v. Acadia Ins. Co., 356 F. App’x 744, 748 (5th Cir.2009) (citing In re State Farm Lloyds, Inc., 170 S.W.3d 629, 634 (Tex. App.—El Paso 2005, no pet.)). While Tyson bears the ultimate burden of proof on this issue, the burden of production shifts to Ms. Vega if Tyson makes a prima facie showing that there is no genuine dispute as to the facts on which the defense is based. See Hernandez v. Lasko Prods., 3:11-CV-1967-M, 2012 WL 4757898, at *2 (N.D. Tex. Oct. 5, 2012) (explaining the shifting summary judgment burdens for the affirmative defense of waiver).

To be valid under the Texas Labor Code, an employee’s waiver of a cause of action against a non-subscribing employer like Tyson1 for job-related injuries must comply with Texas Labor Code §§ 406.033(f) and (g). Subsection (f) states that a cause of action by an employee after the employee’s injury may not be waived unless:

(1) the employee voluntarily enters into the waiver with knowledge of the waiver’s effect;

(2) the waiver is entered into not earlier than the 10th business day after the date of the initial report of injury;

(3) the employee, before signing the waiver, has received a medical evaluation from a nonemergency care doctor; and

(4) the waiver is in a writing under which the true intent of the parties is specifically stated in the document.

Tex. Lab. Code Ann. § 406.033(f)(1)-(4). Subsection (g) further provides that “[t]he waiver provisions under Subsection (f) must be conspicuous and appear on the face of the agreement.” Id. § 406.033(g). Waiver provisions are “conspicuous” within the meaning of the statute if they “appear in type larger than the type contained in the body of the agreement or in contrasting colors.” Id.

Here, it is undisputed that Ms. Vega signed the Waiver; that the Waiver was entered into not less than the tenth business day after her injury was reported; that the Waiver was entered into after she received a medical evaluation from a nonemergency care provider;2 that the Waiver provision is conspicuous within the meaning of the statute, and that her negligence and premises liability claims fall within the subject matter of the released claims. Tyson also submitted evidence to establish that Ms. Vega voluntarily executed the Waiver with knowledge of its effect,3 which is sufficient to meet its initial burden of establishing a prima facie showing that there is no genuine dispute as to the material facts underpinning its waiver defense.

As noted, Ms. Vega does not dispute whether the Waiver in this case satisfies the Texas Labor Code. She, instead, argues that the Waiver is not enforceable because it was procured by fraud and is not supported by valid consideration. The court’s remaining analysis, therefore, focuses on these arguments to determine whether Ms. Vega has established a genuine dispute of material fact regarding the enforceability of the Waiver based on her contention that it was procured by fraud and is not supported by valid consideration.

B. Lack of Consideration

Plaintiff contends that the Waiver lacks the requisite consideration needed to make it enforceable because “it purports to release Tyson from further liability from suit without offering anything to [her] in exchange.” In this regard, Plaintiff asserts:

Under Tyson’s WISP program, an employee automatically receives basic benefits and may elect to become a plan participa[nt] in order to receive [C]omprehensive [B]enefits in the event of a workplace injury. Tyson also provides [its] employees an opportunity to receive health insurance benefits through [its] employment with the company. In order to receive health insurance, a portion of an employee’s paycheck is deducted to cover the health insurance. Vega opted to pay into health insurance coverage provided by Tyson and had health care coverage through Blue Cross Blue Shield (“BCBS”).

...

In this particular case, there is no valid consideration, as Vega would have been able to procure treatment for her injuries through her BCBS coverage and did not receive an additional benefit by signing the Waiver. Without any additional benefit to Vega or detriment to Tyson, there is no valid consideration. Without valid consideration, the Waiver is legally insufficient.

Pl.’s Resp. 10-11 (footnotes omitted) (emphasis added). In other words, Plaintiff argues that, although she received Comprehensive Benefits under Tyson’s WISP program after signing the Waiver, the program offered her no additional benefit in exchange for her waiver of liability because she already had personal health insurance coverage through Blue Cross Blue Shield (“BCBS”). To support the statements in the first of these two paragraphs, Plaintiff relies on her executed Waiver4 and her affidavit5 that she submitted in response to Defendant’s motion.

“[C]onsideration sufficient to support a release must consist of either a benefit to the releaser or a detriment to the person released.” Flatt v. Hill, 379 S.W.2d 926 (Tex. Civ. App.— Dallas 1964, writ ref’d n.r.e). Ms. Vega does not dispute that she received Comprehensive Benefits under the WISP program or that the treatment she received for her injury as a result of the Waiver was paid in full by Tyson. Instead, as correctly noted by Tyson, the argument that Ms. Vega received no additional benefit in exchange for her signing the Waiver is necessarily predicated on her assertion that the Comprehensive Benefits and treatment she received under the WISP program did not constitute an additional benefit because she “would have been able to procure treatment for her [workplace] injuries through her BCBS coverage.” Pl.’s Resp. 11.

At most, Plaintiff’s evidence shows that she had health insurance through BCBC. Plaintiff has offered no evidence that her personal health insurance through BCBS would have covered a work-related injury, or that BCBS would have provided her with the same or substantially similar coverage for such an injury at no additional cost to her. Thus, her unsupported and conclusory argument to the contrary that the Comprehensive Benefits she received under Tyson’s WISP program after signing the Waiver did not constitute as an additional benefit because she already had personal health insurance coverage through Blue Cross Blue Shield (“BCBS”). Accordingly, Plaintiff’s evidence is not sufficient to raise a genuine dispute of material fact in response to Defendant’s waiver defense based on lack of consideration.

C. Fraudulent Inducement

In support of her argument that the Waiver is unenforceable because she was fraudulently induced by Tyson to sign it, Ms. Vega contends, “In exchange for signing the Waiver, Tyson represented to [her] that she would be receiving proper and adequate medical treatment for her injury.” Pl.’s Resp. 12 (citing Ex. A [Pl.’s Aff.] & Ex. B [Pl.’s Nov. 13, 2019 Dep. Tr.] ) (emphasis added).6 Relying on her affidavit, Plaintiff further contends that:

Tyson also represented to [her] that the only way to receive any medical treatment for her injury was to sign the Waiver; however, this statement is a false representation, as [she] had health insurance through her employment with Tyson and could have obtained treatment using her BCBS coverage. When [she] was told by Tyson representatives that she would not receive any treatment for her hand if she did not sign the Waiver, she believed that statement to mean she would also be precluded from using her BCBS health insurance for treatment, as her BCBS was also a benefit that she received through her employment with Tyson. Because [she] already had health insurance through BCBS, she did not understand that the [C]omprehensive WISP [B]enefits were a different type of benefit. She believed them to be the same coverage, and when she was told that she would lose all medical care for her injury if she did not sign the Waiver, she believed that she would not have access to any medical care. This in fact was not true. Had [she] not been pressured into signing the Waiver, she still could have sought treatment for her injuries through the BCBS health insurance that she paid into through her employment with Tyson. By representing to [her] that she would lose all medical treatment by refusing to sign the Waiver, Tyson representatives made a material misrepresentation of fact to [her][.]

While Tyson’s representatives may have been unaware that [she] had health insurance coverage [through BCBS] and may not have explicitly known that their material misrepresentation was false, the claim that [she] would not receive any treatment for her injury was certainly made recklessly without knowledge of its truth. In the alternative, had Tyson’s representatives known that [she] did in fact have health insurance [through BCBS], then they would have known the falsity of their statement at the time it was relayed to [her]. While Plaintiff believes that by making the false assertion that she needed to sign the Waiver in order to receive treatment for her injury, Tyson’s intent was to procure [her] signature on the Waiver, the question of intent has been found to be “uniquely within the realm” of a jury as it “so depends on the credibility of the witnesses and the weight to be given to their testimony.” Jones v. Ray Ins. Agency, 59 S.W.3d 739, 753-54 (Tex. App.— Corpus Christi 2001, pet. [d]enied) (citing Benoit v. Wilson, 150 Tex. 273, 281 (1951)); therefore, this is certainly a genuine issue of material fact to be heard by a jury.

Id. at 12-13 (footnotes omitted). In addition, Mr. Vega contends that the Waiver was procured by fraud because “Tyson falsely represented to [her] that she would receive proper and adequate medical treatment for her injury if she signed the Waiver.” Id. at 5 (emphasis added). Plaintiff asserts that, “[w]hile she did receive treatment [through the WISP program], she did not receive proper and adequate medical treatment for her injury.” Id.

Plaintiff further asserts that she signed the Waiver in reliance on Tyson’s false statement, and, as a result of her reliance on the false statement and decision to sign the Waiver, she has been damaged as follows:

[She] has suffered in that she has not received the proper medical treatment promised to her by Tyson. To this day, she still continues to suffer from the injuries sustained in the Incident and has had to significantly alter her lifestyle to accommodate to the injuries. [She] has further suffered injury from signing the Waiver, as Tyson is now claiming that she has given up her right to seek legal redress for her injuries.

Id. at 13 (emphasis added).

Tyson responds that Ms. Vega’s fraudulent inducement argument, which was raised for the first time in response to its summary judgment motion, is without merit because there is no competent evidence to support it. Tyson argues that the competent summary judgment evidence, instead, establishes that: (1) she admitted to reading the entire Waiver before signing it; (2) she admitted to signing the Waiver; (3) she accepted and received the Comprehensive Benefits paid solely by Tyson under the WISP program in exchange for her signing the Waiver in the form of treatment for her job-related injuries; and (4) her reading and signing the Waiver occurred on June 14, 2017, approximately one month after the Incident. Tyson contends, as before, that Plaintiff has no evidence to support her assertion that her private health insurance through BCBS would have covered treatment for the job-related injuries she sustained to her hand. Tyson, therefore, argues that Plaintiff has not shown that any false statements in this regard were made to her. In addition, Tyson argues that Plaintiff cannot rely on her “sham affidavit” to show that it falsely informed her that her injuries would not be covered under the personal BCBS health insurance that she had before the Incident, as this directly conflicts with her deposition testimony that no one told her this. Def.’s Reply 6-8.

Regarding Plaintiff’s argument that she has not received the proper medical treatment promised to her by Tyson and has incurred damages because “she continues to suffer from the injuries sustained” to her hand despite the treatment she received, Tyson responds that its motion and evidence demonstrate that she received “[C]omprehensive [B]enefits under the WISP program” and that she, therefore, has “already been compensated for her injury.” Id. at 5.

A claim for common law fraud under Texas law requires: “a material misrepresentation, which was false, and which was either known to be false when made or was asserted without knowledge of its truth, which was intended to be acted upon, which was relied upon, and which caused injury.” Zorrilla v. Aypco Constr. II, LLC, 469 S.W.3d 143, 153 (Tex. 2015) (citation and internal quotation marks omitted). “Fraudulent inducement is a distinct category of common-law fraud that shares the same elements but involves a promise of future performance made with no intention of performing at the time it was made.” Id. “[A]bsent fraud, misrepresentation, or deceit, a party is bound by the terms of the contract he [or she] signed, regardless of whether he [or she] read it or thought it had different terms.” In re McKinney, 167 S.W.3d 833, 835 (Tex. 2005).

The court agrees with Tyson that Plaintiff’s fraudulent inducement defense to the enforcement of the Waiver is flawed and fails for the same reason her lack of consideration defense fails. As with her lack of consideration argument, Ms. Vega premises her fraudulent inducement defense on the same unsubstantiated belief and assertion that she still could have sought and received treatment for her injuries through her BCBS health insurance if she had not signed the Waiver. Without evidence, however, that Ms. Vega’s BCBS health insurance would have covered and provided, at no additional cost, similar coverage for the work-related injuries she sustained as a result of the Incident, her contention that Tyson representatives told her something different is insufficient to show that Tyson or its representatives made a “material misrepresentation, which was false, and which was either known to be false when made or was asserted without knowledge of its truth. Zorrilla, 469 S.W.3d at 153.

Further, Plaintiff’s evidence does not support her contention that the Waiver was procured by fraud or that she suffered damage as a result of promises regarding the level of treatment she would receive. As noted, Plaintiff contends in her response that “Tyson falsely represented to [her] that she would receive proper and adequate medical treatment for her injury if she signed the Waiver,” and “[w]hile she did receive treatment, she did not receive proper and adequate medical treatment for her injury.” Id. at 5 (emphasis added). Plaintiff, however, does not state in her affidavit that Tyson or its representatives represented to her that she would receive “proper and adequate” treatment for her injury. Instead, she merely states that it was “her understanding in signing the Waiver that Tyson [ ] would get me the proper treatment to ensure that my hand returned to normal.” Pl.’s App. 4 (Pl.’s Aff. ¶ 15) (emphasis added).

Plaintiff also states in her affidavit that, in signing the Waiver, she relied on unspecified “statements Tyson [ ] made to her about providing the medical treatment [she] needed; however, I do not feel that they carried out their end of the bargain, as my hand is still suffering ongoing injuries as a result of the [I]ncident.” Id. at 4 (Pl.’s Aff. ¶ 16). Again, though, there is no evidence that: Tyson ever promised to provide a particular level of treatment other than the Comprehensive Benefits provided under the WISP Program; that the treatment Plaintiff received was something other than the Comprehensive Benefits provided under the WISP Program; or that Tyson ever promised that Plaintiff’s hand would “return[ ] to normal” as a result of the treatment she would receive under the WISP program. Plaintiff also fails to point to any portion of the WISP program documentation or the Waiver she signed to show that she was promised a level of treatment or specific outcome as a result of the treatment. As a result, the foregoing statements in Plaintiff’s affidavit that are based on her unsubstantiated belief and vague, conclusory statements that she believed she would receive “proper treatment” and was told that she would be “provid[ed] the medical treatment [she] needed” are insufficient to defeat Defendants’ summary judgment motion. See Eason, 73 F.3d at 1325; Forsyth, 19 F.3d at 1533. Plaintiff’s contention that she was fraudulently induced to sign the Waiver is, therefore, insufficient to raise a genuine dispute of material fact regarding the validity or enforceability of the Waiver.

Having determined that Plaintiff’s fraudulent inducement defense fails for the reasons stated, the court need not address in detail Tyson’s alternate argument and contention regarding Plaintiff’s “sham affidavit.” The court agrees that the statement in Plaintiff’s affidavit, that Tyson or Tyson’s representative falsely informed her that her injuries would not be covered under her personal BCBS health insurance, directly conflicts with her deposition testimony that no one made such statement to her. See S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 (5th Cir. 1996) (“It is well settled that this court does not allow a party to defeat a motion for summary judgment using an affidavit that impeaches, without explanation, sworn testimony.”) (footnote and citations omitted). “When an affidavit merely supplements rather than contradicts prior deposition testimony, the court may consider the affidavit when evaluating genuine issues in a motion for summary judgment.” Id. at 486 (citation omitted). An affidavit, however, may be not used to contradict sworn deposition testimony. Id. Accordingly, the court declines to consider the contradictory statement made by Ms. Vega in her affidavit.

D. Voluntariness of Waiver

Ms. Vega acknowledges that she read the Waiver before signing it. She, nevertheless, contends that she was confused, did not fully understand some of the technical terms, and felt pressured by an unnamed nurse. Regarding these matters, Ms. Vega states in her affidavit that: (1) she did not fully understand some technical terms in the Waiver; (2) she was confused because she thought that the comprehensive benefits offered under the WISP program were the same as those that she already had under her personal BCBS health insurance; (3) she was in a lot of pain and felt pressured by a “male nurse” who told her “they” would discontinue treating her job-related injury if she did not sign the Waiver—she thought the nurse meant that she would no longer be able to get help for her injury through her BCBS health insurance; and (4) she “felt a little bit of pressure” because she was afraid of losing her job and was afraid she would not be able to afford medical care for her injury if she did not sign the Waiver. Pl.’s Resp. 12-13; Pl.’s App. 3-4 (Pl.’s Dep ¶¶ 8-14).

Tyson responds that, while Plaintiff has couched these assertions as “fraudulent inducement,” similar arguments regarding the enforceability of a waiver based on duress were rejected by the court in Walkup v. Tyson Foods, Inc., 7:13-CV-0150-O, 2014 WL 4798443 (N.D. Tex. Sept. 26, 2014). Tyson asserts that the plaintiff in Walkup similarly argued that: (1) he was told he would be denied medical care if he failed to sign the waiver; and (2) he was implicitly threatened with firing if he did not sign. Tyson contends that, like the plaintiff in Walkup, Ms. Vega “has presented no evidence that she signed the wavier under duress or any false pretense.” Def.’s Reply 6.

Ms. Vega does not expressly argue that the Waiver is not enforceable because she did not voluntarily sign the Waiver; nor does she argue that she signed the Waiver under duress. Instead, as noted by Defendant, all of the foregoing assertions in her response brief and the statements in her affidavit were made in support of her fraudulent inducement argument, which the court has already determined fails for the reasons explained. Because Ms. Vega did not brief what law would apply to a claim of duress or explain why the requirements for any such claim are satisfied here, the court determines that this issue is waived, and it need not address whether the evidence she relies on is sufficient to establish duress and raise a genuine dispute of material fact regarding the enforceability of the Waiver she signed. See Nichols v. Enterasys Networks, Inc., 495 F.3d 185, 190 (5th Cir. 2007) (explaining that inadequately briefed issues are considered waived).

Likewise, she does not explain why her evidence that she was confused or did not understand certain technical terms in the Waiver is sufficient to raise a genuine dispute of material fact regarding the voluntariness of her waiver under § 406.033(f)(1). Any such argument is also waived. Id. Even assuming that she did not waive a voluntariness argument by not specifically responding to Defendant’s contention and evidence regarding the voluntariness of her signing the Waiver under the Texas Labor Code, the court determines that Ms. Vega’s evidence regarding her confusion and lack of understanding is insufficient to raise a genuine dispute of material fact regarding the voluntariness of her Waiver.

Section 406.033(f)(1) of the Texas Labor Code addresses the voluntariness of a waiver and, as noted, provides that a cause of action by an employee after the employee’s injury may not be waived unless “the employee voluntarily enters into the waiver with knowledge of the waiver’s effect.” “An employee who signs a waiver has presumptive knowledge of its contents and effect under Texas Labor Code § 406.033(f)(1).” Hernandez, 2012 WL 4757898, at *3 (citing Lopez v. The Garbage Man, Inc., No. 12-08-00384-CV, 2011 WL 1259523 at *8, 15, 18 (Tex. App.—Tyler Mar. 31, 2011, no pet.) (concluding that a person who signs a contract “is presumed as a matter of law to have read and understood the contract unless he [or she] was prevented from doing so by trick or artifice.”); see also In re McKinney, 167 S.W.3d at 835 (explaining that, absent fraud or deceit, a party is bound by the terms of the contract he or she signed, regardless of whether he or she “read it or thought it had different terms”).

Like this case, Lopez involved an employee waiver of liability. The Lopez court concluded that the presumption that an employee read and understood the waiver he or she signed applied in determining whether, under § 406.033(f)(1), an employee voluntarily entered into a waiver with knowledge of its effect. Id. at *18; see also Hernandez, 2012 WL 4757898, at *3 (same). The Lopez court also concluded that, as a result of this presumption, Lopez had actual knowledge of the release, and that this negated the common law fair notice requirements of conspicuousness and the express negligence rule.” Id. at *15.

Here, the undisputed evidence is that Ms. Vega was presented with and signed the Waiver on June 14, 2017; that the Waiver was explained to her and she was provided an opportunity to ask questions before she signed it; that, before signing the Waiver, she did not ask questions regarding the matters she now says caused her confusion or did not understand; that she executed the Waiver in Spanish, her native language; that the Waiver signed by her was also witnessed and signed by Tyson’s Human Resources Director; and that she continued to receive Comprehensive Benefits under the WISP program paid by Tyson as a result of the Waiver, including physical therapy and surgery, through at least January 2018, after she filed this lawsuit. Def.’s App. 3; Def.’s Reply App. Ex. H (Pl.’s Dep. 45-47, 66).

Further, the Waiver signed by Mr. Vega states:

WAVIER AND RELEASE: In exchange for eligibility for any Comprehensive Benefits under the [WISP] Program, I HEREBY VOLUNTARILY RELEASE, WAIVE, AND FOREVER GIVE UP ALL MY RIGHTS, CLAIMS AND CAUSES OF ACTION, WHETHER NOW EXISTING OR ARISING IN THE FUTURE, THAT I MAY HAVE AGAINST THE COMPANY, TYSON FOODS, INC. AND THEIR PARENT, SUBSIDIARY AND AFFILIATED COMPANIES AND ALL OF THEIR OFFICERS, DIRECTORS, OWNERS, EMPLOYEES AND AGENTS THAT ARISE OUT OF OR ARE IN ANY WAY RELATED TO THE INJURIES (INCLUDING A SUBSEQUENT OR RESULTING DEATH) SUSTAINED IN THE COURSE AND SCOPE OF MY EMPLOYMENT WITH THE COMPANY. I EXPRESSLY UNDERSTAND THAT INCLUDED IN THE CLAIMS THAT I AM RELEASING, WAIVING AND GIVING UP

ARE CLAIMS BASED ON NEGLIGENT OR GROSSLY NEGLIGENT ACTS OR OMISSIONS.

Def.’s App. 9-10 (Spanish version), 38-39 (English version). The Waiver also states that “I understand” that: Comprehensive Benefits provided under the Waiver are through Tyson’s WISP program, referred to in the Waiver as the “Program”; that to be entitled to Comprehensive Benefits under the WISP program, Plaintiff must waive her right to sue Tyson for “damages of any nature related to [her] on-the-job injury”; that she was electing to participate in the WISP program, knowing that her injuries and damages could be more severe than she was aware at that time she signed the Waiver; that Tyson is a non-subscriber to the Texas Workers’ Compensation Act; and that signing the Waiver “is NOT a condition of my employment with [Tyson].” Id.

Based on this evidence, the court concludes that Plaintiff’s evidence that she was pressured or confused regarding the difference between the WISP program and her personal health insurance through BCBS is insufficient to overcome the presumption in Lopez or establish that the Waiver she signed was procured by fraud or deceit. The conclusory statement in her affidavit that she did not understand certain unspecified technical terms is similarly insufficient to overcome the presumption in Lopez and In re McKinney that she read and understood the terms of the Waiver for purposes of defeating Defendants’ summary judgment motion based on its waiver defense. See Eason, 73 F.3d at 1325. As a result, Plaintiff has failed to raise a genuine dispute of material fact regarding the voluntariness of her Waiver.

IV. Conclusion

For the reasons explained, Tyson is entitled to judgment on its affirmative defense of waiver. Accordingly, the court grants Defendant Tyson Foods, Inc.’s Motion for Summary Judgment (Doc. 16) and dismisses with prejudice this action and all claims asserted by Mr. Vega. In accordance with Rule 58 of the Federal Rules of Civil Procedure, judgment will issue by separate document.

It is so ordered this 14th day of March, 2021.

Sam A. Lindsay

United States District Judge

Footnotes

1

It is undisputed that Tyson is a non-subscriber to the Texas Workers’ Compensation Act.

2

Plaintiff acknowledges that she received medical treatment but contends that she has not received the “proper and adequate medical treatment for her injury” that was promised to her by Tyson if she signed the Waiver. See Pl.’s Resp. 5, 12, 13. Plaintiff does not dispute that, before signing the Waiver, she received a medical evaluation from a nonemergency care doctor. She also has not asserted a breach of contract claim against Tyson for failure to perform as promised in exchange for the Waiver. Plaintiff, instead, makes the contention regarding the adequacy of the medical treatment she received after signing the Waiver in support of her fraudulent inducement argument. The court, therefore, only considers this argument by Plaintiff in addressing her assertion that the Waiver is unenforceable because it was procured by fraud.

3

See infra pp. 13-16.

4

Plaintiff cites to Exhibit C of the appendix to her response.

5

Plaintiff cites to Exhibit A and A-1 of her appendix. Exhibit A is Plaintiff’s affidavit in which she similarly references Exhibit A-1 in stating that a copy of her insurance card with BCBS is attached as Exhibit A-1. Plaintiff’s appendix, however, does not include an Exhibit A-1. On the other hand, the court sees from the table of contents to Plaintiff’s appendix that this insurance card is included in Exhibit D. Confusion regarding the evidence relied on by Plaintiff and time spent by the court attempting to sort out such confusion could have been avoided if she had simply cited to the appropriate appendix page numbers as required by this district’s Local Civil Rules, rather than citing generally to exhibits, some of which are 90 pages in length. Regardless, it is undisputed that Plaintiff had health insurance coverage through BCBS.

6

Plaintiff’s Exhibit B is approximately 90 pages long. Plaintiff does not indicate in her response which portion of her deposition testimony or this exhibit that she is relying on to support this assertion, and it is not incumbent on the court to sift through the record to find evidence supporting Plaintiff’s opposition to Defendant’s summary judgment motion. Ragas, 136 F.3d at 458; Skotak, 953 F.2d at 915-16 & n.7.

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

IN THE INTEREST OF A.V.T.R., A CHILD

NO. 14-19-00986-CV

|

Opinion filed March 11, 2021

On Appeal from the 310th District Court

Harris County, Texas

Trial Court Cause No. 2013-68957

Panel consists of Justices Wise, Zimmerer, and Poissant.

MEMORANDUM OPINION

Jerry Zimmerer Justice

Affirmed and Memorandum Opinion filed March 11, 2021.

Appellant Andrew Rose (“Father”) appeals the trial court’s order following a bench trial in a suit affecting the parent-child relationship. In three issues Rose challenges the trial court’s exclusion of evidence during the hearing on his motion for new trial, the overruling of his motion for new trial, and the assessment of amicus attorney’s fees. We affirm.

BACKGROUND

Father and appellee Joann Taylor (“Mother”) had a child in 2014. Pursuant to a mediated settlement agreement (“MSA”) Mother was named sole managing conservator of the child and Father was the possessory conservator. The parties agreed to child support and Father’s visitation. Father subsequently filed a petition to modify the MSA in that Father sought to be appointed sole managing conservator with the right to designate the primary residence of the child. In the alternative Father requested that the parties be named joint managing conservators. Father alleged that the circumstances of the child had changed because Mother engaged in a history or pattern of child neglect. Father’s petition to modify did not allege specific circumstances that had materially and substantially changed, but at trial Father alleged that Mother made false accusations of sexual abuse against him and, in that regard, Mother had engaged in a history or pattern of child neglect.

The parties proceeded to a bench trial where the following witnesses testified: (1) LaRon Haynes, an investigator with the Department of Family and Protective Services (the “Department”); (2) Ambryia Wilson, another Department investigator; (3) Melissa Ramsey, a family therapist who saw the child; (4) Father; and (5) Mother.

Haynes testified that he conducted an investigation into an outcry of sexual abuse made by the child, who was three years old at the time. The outcry was reported by Mother. The investigation resulted in an “unable to determine” finding. According to the investigation report, Mother reported that the child exhibited behaviors consistent with sexual abuse after visitation with Father. Haynes was unable to rule out the allegation because the child was unable to give details about the allegation. Haynes referred the child to play therapy. The therapist from play therapy also reported the child’s outcry and the Department opened a second investigation.

The Department assigned Wilson to investigate the outcry reported by the therapist, the second outcry. Wilson testified that the investigation was closed because the Department determined that the outcry involved the same allegations that had been made in the first allegation; there was nothing new to investigate, resulting in an administrative closure.

At the time of trial Father was working as an aviation instructor in China, which required him to alternate four weeks living in China with four weeks in Houston. Father asked the trial court to modify the MSA’s standard possession order to allow him access to the child during the time he was living in Houston. Father also requested that Mother pay child support to him. Father testified that he exercised all periods of possession and was up to date on child support. Father denied the sexual abuse allegations. While the abuse allegations were investigated Father was not allowed visitation with the child.

Mother testified that she did not believe the circumstances of the child had changed and she was willing to give Father visitation every weekend he was in Houston.

At the conclusion of the testimony Mother’s attorney requested a directed verdict, arguing that Father failed to meet his burden to show a material and substantial change in the child’s circumstances. The trial court agreed and granted a directed verdict on Father’s motion to modify.

The trial court rendered judgment denying Father’s motion to modify conservatorship and granting Mother’s motion to modify child support. The trial court further denied both parties’ requests for attorneys’ fees and granted the amicus attorney’s request for fees, ordering Father to pay $12,235 in amicus fees.

Father filed a motion to reconsider amicus fees, motion for new trial, and amended motion for new trial in which he argued the trial court erred in assessing amicus fees against him and in excluding certain testimony. Specifically, Father asserted he was entitled to a new trial because (1) the evidence was legally and factually insufficient to support the trial court’s judgment allocating amicus fees; and (2) “an unauthorized act or acts by [Father]’s trial counsel so prejudiced [Father]’s ability to present his claims in this case that the effect was to deprive [Father] of his day in court[.]” The trial court held a hearing on Father’s motion for new trial, which was denied.1

At the hearing on the motion for new trial Father introduced evidence that Mother had entered into an MSA with Don Brooks, the father of Mother’s older child. A portion of the MSA enjoined Brooks from testifying in the modification proceeding between Mother and Father. Brooks was represented by attorneys with the same law firm that represented Father. Father asked that Brooks be permitted to testify at the hearing on the motion for new trial; Father did not seek Brooks’s testimony at trial. The trial court excluded Brooks’s testimony from the motion-for-new-trial hearing. Father asked to present an offer of proof of Brooks’s testimony, which the trial court agreed to allow after the hearing. By the time the hearing ended Brooks had left the courtroom. Approximately one week later the attorneys reconvened, but Brooks was not present. Father’s attorney stated on the record that Brooks would have testified that he was involved in a modification proceeding with Mother and was represented by the same law firm that represented Father. Brooks would have testified that Mother also made allegations of sexual abuse against him in the modification proceeding. Brooks would have testified that Mother reported the alleged abuse to the Department.

Father filed a timely request for findings of fact and conclusions of law, but did not timely notify the trial court of past-due findings and conclusions. See Tex. R. Civ. P. 297 (requiring a party to file a notice of past due findings “within thirty days after filing the original request”). The trial court did not file findings of fact and conclusions of law and Father waived any complaint that the trial court failed to issue findings. See Hardin v. Hardin, 161 S.W.3d 14, 20 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (explaining that untimely filing of notice of past due findings results in waiver of any complaint that trial court failed to issue findings).

ISSUES PRESENTED

In three issues on appeal Father asserts (1) the trial court committed harmful error in excluding the testimony of Don Brooks at the hearing on the motion for new trial; (2) the trial court abused its discretion in denying Father’s motion for new trial; and (3) the trial court abused its discretion in ordering Father to pay all remaining amicus fees. Mother did not file a responsive brief in this court.

ANALYSIS

I. Standard of Review and Applicable Law

We review the trial court’s denial of Father’s petition to modify for an abuse of discretion. See In re K.S., 492 S.W.3d 419, 426 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (“Trial courts have wide discretion with respect to custody, control, possession, support, and visitation matters.”). The trial court abuses its discretion when it acts arbitrarily, unreasonably, or without reference to any guiding rules or principles. In re R.T.K., 324 S.W.3d 896, 899 (Tex. App.—Houston [14th Dist.] 2010, pet. denied). The trial court does not abuse its discretion if there is some evidence of a substantive and probative character to support its decision. In re C.A.M.M., 243 S.W.3d 211, 214 (Tex. App.—Houston [14th Dist.] 2007, pet. denied).

Under an abuse-of-discretion standard, legal and factual sufficiency are not independent grounds of error but instead are relevant factors assessed to determine if the trial court abused its discretion. In re R.T.K., 324 S.W.3d at 899–900. Where, as here, the trial court fails to file findings of fact and conclusions of law following a bench trial, we infer all findings necessary to support the judgment and will affirm on any legal ground supported by the record. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002). When the appellate record includes both the reporter’s and clerk’s records, the implied findings are not conclusive and may be challenged for legal and factual sufficiency. See Harris County v. Ramirez, 581 S.W.3d 423, 427 (Tex. App.—Houston [14th Dist.] 2019, no pet.).

When examining legal sufficiency, we review the entire record, considering evidence favorable to the finding if a reasonable factfinder could and disregarding contrary evidence unless a reasonable factfinder could not. In re J.R.P., 526 S.W.3d 770, 777 (Tex. App.—Houston [14th Dist.] 2017, no pet.). We indulge every reasonable inference that would support the challenged finding. Id. Evidence is legally sufficient “if it would enable reasonable and fair-minded people to reach the decision under review.” Id.

For a factual sufficiency review, we examine the entire record and consider evidence favorable and contrary to the challenged finding. In re P.A.C., 498 S.W.3d 210, 214 (Tex. App.—Houston [14th Dist.] 2016, pet. denied). “We may set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.” In re J.R.P., 526 S.W.3d at 777. “It is not within the province of this court to interfere with the factfinder’s resolution of conflicts in the evidence or to pass on the weight or credibility of the witness’s testimony.” In re C.E.M.-K., 341 S.W.3d 68, 81 (Tex. App.—San Antonio 2011, pet. denied).

In a bench trial, the trial court is in the best position to observe and assess the witnesses’ demeanor and credibility, and “to sense the ‘forces, powers, and influences’ that may not be apparent from merely reading the record on appeal.” In re A.L.E., 279 S.W.3d 424, 427 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (quoting Niskar v. Niskar, 136 S.W.3d 749, 753 (Tex. App.—Dallas 2004, no pet.)). “As a result, an appellate court defers to a trial court’s resolution of underlying facts and to credibility determinations that may have affected its determination, and will not substitute its judgment for that of the trial court.” In re J.R.P., 526 S.W.3d at 778.

To ensure stability and continuity for children’s living arrangements, Texas law delineates the showing necessary to modify a trial court’s conservatorship order. See In re A.L.H., 515 S.W.3d 60, 79 (Tex. App.—Houston [14th Dist.] 2017, pet. denied). The terms of a conservatorship may be modified only if (1) modification is in the child’s best interest, and (2) “the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed” since the date of rendition of the conservatorship order. Tex. Fam. Code § 156.101(a).

The existence of a material and substantial change in circumstances is a threshold determination. In re A.L.E., 279 S.W.3d at 428. In making this determination, the trial court “is not confined to rigid or definite guidelines;” rather, the trial court’s determination is fact-specific and must be made according to the circumstances as they arise. Id. Material changes may include (1) the marriage of one of the parties; (2) changes in the home surroundings; (3) mistreatment of the child; or (4) a party becoming an improper person to exercise custody. Arredondo v. Betancourt, 383 S.W.3d 730, 734-35 (Tex. App.—Houston [14th Dist.] 2012, no pet.). The person seeking the modification has the burden of establishing a material and substantial change. London v. London, 94 S.W.3d 139, 145 (Tex. App.—Houston [14th Dist.] 2002, no pet.).

“[N]ot every change in conditions justifies a change of custody, but only those changes which reasonably could be said to injuriously affect the child’s best interests.” Jeffers v. Wallace, 615 S.W.2d 252, 253 (Tex. Civ. App.—Dallas 1981, no writ). Change alone does not justify modification unless changed needs also are shown. See Zeifman v. Michels, 212 S.W.3d 582, 593 (Tex. App.—Austin 2006, pet. denied). The policy behind the material-and-substantial-change requirement is to prevent constant re-litigation with respect to children and create stability in the conservatorship. In re H.P.J., No. 14-17-00715-CV, 2019 WL 1119612, at *3–4 (Tex. App.—Houston [14th Dist.] Mar. 12, 2019, no pet.) (mem. op.).

To show that a material and substantial change in circumstances has occurred, the movant must show conditions as they existed at the time the prior conservatorship order was signed. In re A.L.E., 279 S.W.3d at 428 (citing Zeifman, 212 S.W.3d at 589). Once these circumstances have been shown, the movant must show what material and substantial changes have occurred in the intervening period. Id.

II. The trial court did not abuse its discretion in excluding Brooks’s testimony from the hearing on the motion for new trial.

Father first contends that the trial court abused its discretion in excluding Brooks’s testimony from the hearing on the motion for new trial.

Evidentiary decisions are committed to the trial court’s sound discretion. U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 132 (Tex. 2012). To show that the trial court abused its discretion in excluding evidence, a complaining party must demonstrate that (1) the trial court erred in not admitting the evidence; (2) the excluded evidence was controlling on a material issue dispositive of the case and was not cumulative; and (3) the error probably caused the rendition of an improper judgment. Tex. R. App. P. 33.1(a); Tex. R. Evid. 103(a). Matter of Marriage of Harrison, 557 S.W.3d 99, 121 (Tex. App.—Houston [14th Dist.] 2018, pet. denied).

Father has failed to demonstrate that Brooks’s testimony would have been material to the trial court’s decision on whether there was a material and substantial change in the circumstances of the child. Notably, Father does not contend on appeal that the evidence is legally or factually insufficient to support the trial court’s conservatorship ruling or otherwise complain about the ruling. Father did not present Brooks as a witness at trial and did not assert that Brook’s testimony was newly discovered evidence following the trial. Absent a complaint about the trial court’s substantive ruling, it is difficult to see how the exclusion of evidence from the motion-for-new-trial hearing probably caused the rendition of an improper judgment. See Watts v. Oliver, 396 S.W.3d 124, 129–30 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (holding that absent a complaint about the trial court’s substantive ruling, appellant could not establish that exclusion of evidence probably caused rendition of an improper judgment).

Father also argues that the injunction against Brooks’s testimony in the MSA was an unconstitutional prior restraint on speech. Father failed to preserve this issue by failing to raise it at trial or in his motion for new trial. See Tex. R. App. P. 33.1 (to preserve error appellant must show complaint was made to the trial court by timely request, objection, or motion).

On this record we cannot say that the trial court abused its discretion in excluding Brooks’s testimony from the hearing of his motion for new trial. We overrule Father’s first issue.

III. The trial court did not abuse its discretion in denying Father’s motion for new trial.

In Father’s second issue he contends the trial court erred in denying his motion for new trial. Specifically, Father alleges that his attorney “entered into an unauthorized settlement agreement.” Father argues that his attorney hampered the presentation of Father’s case by entering into the settlement agreement that contained the injunction prohibiting Brooks from testifying in Father’s modification proceeding.

We review the trial court’s denial of Father’s motion for new trial under the abuse-of-discretion standard of review. See Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362, 372 (Tex. 2000); Wichman v. Kelsey-Seybold Med. Group, PLLC, No. 14-18-00641-CV, 2020 WL 4359734, at *2 (Tex. App.—Houston [14th Dist.] July 30, 2020, no pet.).

Attached to Father’s motion for new trial was a copy of the MSA in a modification suit in which Brooks sought to modify the parent-child relationship between Brooks and Mother. The MSA contained the aforementioned injunction order against Brooks testifying in the modification proceeding between Father and Mother. One of Father’s trial attorneys, Brian Walters, signed the agreed order as Brooks’s attorney. Walters’s signature appeared below a notation, “Approved as to Form Only.” Brooks and Mother each signed the agreed order as parties to the MSA under a notation, “Approved and Consented to as to Both Form and Substance.”

Father attacks the agreed order, which incorporated the MSA, as being void as against public policy because (1) the order “destroyed” evidence because it prohibited Brooks from testifying; (2) Father’s attorney was not authorized to enter into the MSA; and (3) Father’s attorney violated the Texas Disciplinary Rules of Professional Conduct when he entered into the MSA. It is undisputed that Father was not a party to the MSA or agreed order enforcing the MSA.

In challenging the injunction against Brooks testifying, Father attempts to collaterally attack the judgment. A direct attack—such as an appeal, a motion for new trial, or a bill of review—attempts to correct, amend, modify, or vacate a judgment. PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 271 (Tex. 2012). A collateral attack seeks to avoid the binding effect of a judgment to obtain specific relief that the judgment currently impedes. Id. In general, a party to a final judgment may collaterally attack the judgment at any time after the time for filing an appeal has expired; however, in light of the policy favoring the finality of judgments, such attacks are disfavored and may only be made on the ground that the judgment was void, rather than merely voidable. See id. at 272–74 (recognizing that this rule “strikes a reasonable balance between the need for finality of judgments and the requirement that the power underlying judicial authority must be based on a litigant’s fair opportunity to be heard”); see also Browning v. Prostok, 165 S.W.3d 336, 346 (Tex. 2005). Therefore, parties to a divorce proceeding may collaterally attack a final judgment in their own case on the ground that it was void. See, e.g., Ramsey v. Ramsey, 19 S.W.3d 548, 552–53 (Tex. App.—Austin 2000, no pet.) (recognizing that “a divorce decree that is valid on its face and has not been appealed cannot be set aside in a subsequent suit by collateral attack”). However, a somewhat different analysis applies when, as here, a non-party seeks to collaterally attack a final judgment. Here, Father argues that Brooks’s MSA and agreed judgment in Brooks’s divorce impeded Father’s ability to present evidence in the instant case.

An individual who is not a party to a final judgment lacks standing to collaterally attack the judgment, unless the individual can establish his or her interests are directly and necessarily affected by the judgment itself. See In re Ocegueda, 304 S.W.3d 576, 580–81 (Tex. App.—El Paso 2010, pet. denied) (attorneys who were non-parties to expunction proceeding lacked standing to collaterally attack expunction order). Having an “interest affected by the judgment” means having an interest in the subject matter to which the judgment relates. Digilio v. True Blue Animal Rescue, No. 01-18-01087-CV, 2020 WL 4308709, at *9 (Tex. App.—Houston [1st Dist.] July 28, 2020, no pet.) (mem. op.). Examples of nonparties whose interests are affected by a judgment are persons having an interest in land (such as an owner, a cotenant, or a person in lawful possession) who are not made a party to an action involving the land, a holder of a junior lien who has been ignored in a suit foreclosing a prior lien on the same property, and a creditor whose rights are prejudiced by a judgment pursued for the purpose of delaying, hindering, or defrauding the creditor. See Grynberg v. Christiansen, 727 S.W.2d 665, 667 (Tex. App.—Dallas 1987, no writ).

Conversely, having only a tangential or indirect interest in the judgment is insufficient to bestow standing upon a non-party for purposes of allowing a collateral attack on the judgment. See, e.g., id. at 667 (party lacked standing to collaterally attack a final judgment that was rendered in another proceeding, where his only asserted interest in doing so was to avoid the inconvenience of attending oral depositions and producing documents); In re Ocegueda, 304 S.W.3d at 580–81 (attorneys could not establish that they had standing to collaterally attack an expunction order where they were neither parties to the original expunction proceeding nor did they represent any of the parties to the proceeding).

In accord with these general principles, several courts, including at least three of our sister courts in Texas, have held that a non-party to a divorce proceeding lacks standing to collaterally attack a divorce decree where the individual had no pre-existing interest in the divorce proceeding itself. See, e.g., Caballero v. Vig, 600 S.W.3d 452, 459–60 (Tex. App.—El Paso 2020, pet. denied) (wife did not have standing to challenge the validity of annulment of marriage of trial judge); Gilliam v. Riggs, 385 S.W.2d 444, 446–47 (Tex. Civ. App.—Beaumont 1964, writ dism’d w.o.j.) (appellant, who was not a party to a divorce proceeding and was unable to demonstrate that he had any interest in the divorce, had no right to challenge the validity of the divorce judgment); Perry v. Copeland, 323 S.W.2d 339, 344 (Tex. Civ. App.—Texarkana 1959, writ dism’d) (recognizing that daughter had no right to collaterally attack her father’s divorce decree); Kieke v. Cox, 300 S.W.2d 309, 311 (Tex. Civ. App.—San Antonio 1957, no writ) (second husband of one of the parties to a divorce judgment that was regular and final on its face lacked sufficient interest to collaterally attack the same).

Relying on In re Kasschau, 11 S.W.3d 305 (Tex. App.—Houston [14th Dist.] 1999, orig. proceeding), Johnson v. Ranch Guadalupe, 789 S.W.2d 596, 598 (Tex. App.—Texarkana 1990, pet. denied), and Hazelwood v. Mandrell Industries Co., Ltd., 596 S.W.2d 204, 206 (Tex. App.—Houston [1st Dist.] 1980, writ ref’d n.r.e.), Father argues that the MSA and the injunction contained in the agreed order are void. In each of those cases, however, the party challenging the order or agreement was a party to the order or agreement. See Kasschau, 11 S.W.3d at 308 (party to MSA sought judgment on a MSA); Johnson, 789 S.W.2d at 597–98 (parties to settlement agreement alleged their attorney was not authorized to enter into the agreement); Hazelwood, 596 S.W.2d at 205 (workers’ compensation claimant alleged that employment contract was void as against public policy).

Because Father does not have standing to challenge the agreed order in Brooks’s modification proceeding, the trial court did not abuse its discretion in denying Father’s motion for new trial on the ground that the injunction in the MSA was unauthorized or void as against public policy. We overrule Father’s second issue.

IV. The trial court did not abuse its discretion in assessing amicus fees against Father.

The record reflects that before trial, the amicus attorney filed a motion to compel attorney’s fees and for sanctions. In the motion the amicus attorney stated that the trial court had previously ordered Father to pay $7,306.25 to the amicus as her fee. The motion further asserted that Mother owed the amicus $10,156.25 in fees. The amicus attorney later submitted an affidavit, which reflected that the total amount owed was $22,035, of which Father had already paid $9,000, and Mother had paid $800 leaving a balance of $12,235. The amicus represented that Mother was paying her portion of the amicus fees in installments. Father objected to the amicus fees noting that he had already paid the “vast majority” of the fees. In its final judgment the trial court ordered Father to pay $12,235, representing the amount of amicus fees owed at that time.

In Father’s third issue he asserts the evidence was legally and factually insufficient to support the assessment of amicus fees against him. Father asserts the trial court abused its discretion in two ways when it ordered him to pay the amicus attorney’s fees. First, Father asserts the fees were improperly assessed as sanctions. Second, Father asserts the trial court abused its discretion because the evidence is insufficient to support the assessment of amicus attorney’s fees.

A. The record does not reflect that the amicus fees were assessed as a sanction.

The Family Code authorizes a trial court to make a discretionary appointment of an amicus attorney in a suit affecting the parent-child relationship when the best interest of the children is an issue. See Tex. Fam. Code § 107.021; In re Scheller, 325 S.W.3d 640, 645 (Tex. 2010) (orig. proceeding) (per curiam). Pursuant to section 107.021 of the Family Code, the trial court appointed an amicus attorney in this proceeding. In its judgment the trial court ordered Father to pay $12,235 in amicus fees, but did not order Mother to pay amicus fees. In his motion for new trial and on appeal Father complains that Mother did not plead for amicus fees to be assessed as sanctions and the evidence was legally and factually insufficient to support assessment of the fees as a sanction against him.

Contrary to Father’s assertion, Mother did request sanctions against Father for filing a frivolous pleading. In a motion to deny relief, filed June 17, 2019, Mother requested sanctions pursuant to Texas Rule of Civil Procedure 13 and Chapter 10 of the Texas Civil Practice and Remedies Code because she alleged Father filed a groundless suit that was not in the best interest of the child. In opening statements Mother’s attorney requested “attorney’s fees, costs and – plus additional sanctions to prevent this kind of thing in the future.” The trial court’s judgment, however, did not assess amicus fees as sanctions.

Numerous sections in the Family Code authorize a trial court to award attorney’s fees in a suit affecting the parent-child relationship (“SAPCR”). Section 106.002, applicable to all SAPCRs, vests a trial court with general discretion to render judgment for reasonable attorney’s fees to be paid directly to a party’s attorney. Tex. Fam. Code § 106.002(a); see also Lenz v. Lenz, 79 S.W.3d 10, 21 (Tex. 2002) (“An attorney’s fees award in a suit affecting the parent-child relationship is discretionary with the trial court.”). In addition, the Legislature has enacted specific provisions that control awards of attorney’s fees in certain types of cases under Title 5, including separate provisions for Chapter 156 modification suits and Chapter 157 enforcement suits. For example, section 156.005 requires that a trial court tax attorney’s fees as costs against the offending party in modification suits if the court finds that the suit was “filed frivolously or is designed to harass a party.” Tex. Fam. Code § 156.005. Section 156.005 requires a finding by the trial court that the suit for modification was filed frivolously or was designed to harass a party, and the court is required to state that finding in its order. Tex. Fam. Code § 156.005. The trial court made no such finding in this case.

Chapters 9 and 10 of the Texas Civil Practice and Remedies Code and rule 13 of the Texas Rules of Civil Procedure allow a trial court to sanction an attorney or a party for filing motions or pleadings that lack a reasonable basis in fact or law. Chapter 9 of the Texas Civil Practice and Remedies Code only applies in proceedings in which neither Rule 13 nor Chapter 10 applies. Tex. Civ. Prac. & Rem. Code § 9.012(h). Rule 13 authorizes the imposition of the sanctions listed in Rule 215.2(b), which provides for a monetary penalty based on expenses, court costs, or attorney’s fees. Tex. R. Civ. P. 13; Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007). Rule 13 requires: “No sanctions under this rule may be imposed except for good cause, the particulars of which must be stated in the sanction order.” Tex. R. Civ. P. 13 . Chapter 10 requires that the court “shall describe in an order imposing a sanction under this chapter the conduct the court has determined violated Section 10.001 and explain the basis for the sanction imposed.” Tex. Civ. Prac. & Rem. Code § 10.005.

At trial, the attorneys agreed to have a separate hearing on attorney’s fees and sanctions, which according to the trial court’s judgment, was never held. The trial court considered the parties’ attorneys’ fees requests by submission and denied both parties’ requests for attorneys’ fees. The trial court then stated in its order:

Having considered the pleadings on file, evidence presented, and arguments of counsel, the Court hereby GRANTS the request for attorney fees of Amicus Attorney, Tammy Simien Moon. THEREFORE,

[Father] is ORDERED to pay directly in the offices of TAMMY SIMIEN MOON the amount of $12,235.00 by cash, cashier’s check or money order by August 6, 2019.

The trial court did not reference sanctions, Rule 13, or any other statute permitting sanctions. The final judgment does not reference sanctions or contain any language pursuant to Rule 13 or Chapter 10 that is required to assess sanctions.

The record does not reflect that amicus fees were awarded as sanctions in this case. Father is correct in noting that a trial court must make a finding of good cause before assessing sanctions pursuant to Rule 13 of the Texas Rules of Civil Procedure. Tex. R. Civ. P. 13. Under Chapter 10, the trial court must describe the conduct the court has determined violated section 10.001 and explain the basis for the sanction imposed. Tex. Civ. Prac. & Rem. Code § 10.005. Under the Family Code, before assessing sanctions, the trial court is required to state in its order that the suit for modification was filed frivolously or was designed to harass a party. Tex. Fam. Code § 156.005. Because the trial court made no such findings, we hold the trial court did not assess sanctions. Cf. In re D.Z., 583 S.W.3d 284, 293–94 (Tex. App.—Houston [14th Dist.] 2019, no pet.) (holding that trial court’s award of attorney’s fees because “good cause exist[ed] to award [Mother] attorney’s fees” was sufficient to satisfy Rule 13’s requirement of a sanction).

B. The evidence is legally and factually sufficient to support the trial court’s assessment of amicus attorney’s fees.

Having determined the amicus fees were not assessed as sanctions, we review the trial court’s award of amicus fees in a suit affecting the parent-child relationship for abuse of discretion. In re R.H.W. III, 542 S.W.3d 724, 743 (Tex. App.—Houston [14th Dist.] 2018, no pet.). Section 107.023 of the Family Code gives the trial court wide discretion in awarding amicus fees and permits the trial court to assess the fees against either party or both parties. See Tucker, 419 S.W.3d at 300 (noting that section 107.023 specifically authorizes trial courts to characterize fees awarded to an amicus attorney as necessaries for the benefit of the child).

Father asserts the trial court abused its discretion because it did not consider the amounts already paid by the parties, the court’s prior orders regarding allocation of amicus fees, and the amicus attorney’s invoices reflecting amounts already paid to the amicus.

As noted in the court’s judgment, the parties agreed to submit requests for attorney’s fees in writing rather than participate in an oral hearing. The amicus attorney submitted an affidavit on July 8, 2019, which reflected a balance of $12,235 owed in amicus fees. The affidavit notes a previous balance of $11,550 plus new charges of $10,485, and credits the parties with $9,800 in payments. On December 9, 2019, in the hearing on the motion for new trial, held several months after judgment, Father testified that he paid the amicus attorney “$14,500, approximately.” The evidence is therefore conflicting as to how much Father paid the amicus attorney before the trial court rendered judgment. It is also plausible that Father paid some of the amicus fees between the date of judgment and the hearing on the motion for new trial.

Viewing the conflicting evidence in the light most favorable to the trial court’s ruling, we conclude Father has not shown the trial court abused its discretion in awarding amicus fees to be paid by Father pursuant to section 107.023. See In re R.H.W. III, 542 S.W.3d at 743 (holding trial court has discretion to assess amicus fees against one parent as necessaries for the child); In re R.T.K., 324 S.W.3d at 899–900 (stating standard of review for sufficiency of evidence). Concluding the trial court did not assess amicus fees as a sanction and did not abuse its discretion in assessing fees to be paid by Father, we overrule Father’s third issue.

CONCLUSION

Having overruled Father’s issues on appeal, we affirm the trial court’s judgment.

Footnotes

1

The motion for new trial was denied by operation of law on November 27, 2019, 75 days after the judgment was signed. See Tex. R. Civ. P. 329b(c). The hearing was not held until December 9, 2019; however, the trial court retained plenary power for an additional 30 days after the motion was overruled by operation of law. See Tex. R. Civ. P. 329b(e). The trial court noted on its docket sheet that the motion for new trial was denied December 9, 2019.

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