Court of Appeals of Texas, Eleventh District, Eastland
DORA JO MOTLOCH, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF JAMES MOTLOCH, DECEASED, Appellant
ALBUQUERQUE TORTILLA COMPANY, INC., Appellee
On Appeal from the 70th District Court, Ector County, Texas. Trial Court Cause No. A-128,142-A.
For Appellant: Peter M. Kelly, Kelly, Durham & Pittard, LLP, Houston, TX; William K. Adams, Thomas A. Adams IV, Adams Law Firm, Katy, TX.
For Appellee: W. Stacy Trotter, Shafer, Davis, O'Leary & Stoker, Odessa, TX; Eric S. Rich, Shafer, Davis, O'Leary & Stoker, Odessa, TX.
Panel consists of: Wright, C.J., Willson, J., and Bailey, J.
JIM R. WRIGHT, CHIEF JUSTICE
Dora Jo Motloch, individually and on behalf of the Estate of James Motloch, deceased, sued Albuquerque Tortilla Company, Inc., alleging claims for negligent
hiring and various theories of vicarious liability arising out of a fatal accident between the Motlochs and Johnny Rafael Marmolejo Jr. We affirm.
Albuquerque Tortilla manufactures almost seven million tortillas each week and distributes its products to retail stores, restaurants, and " mom-and-pop stores" in five states. Albuquerque Tortilla sold its products directly to some of its customers, hired drivers to deliver its products in the Albuquerque area, and contracted with " eight or nine" independent operator distributors to deliver its products in the other markets. The distributors worked with each individual store to set delivery times, rotated the products on the shelf for freshness, and removed stale products. When the company hired or fired a distributor, it had " no process of finding a replacement" because " [p]eople would be jumping at the opportunity to fill it" and " because there are so many operators out there that are better in running the business."
Indeed, when Curtis Lathram, who owned D& D Distributing, heard that Albuquerque Tortilla lost its distributor in the west Texas and New Mexico territory, he contacted the company, and they began the negotiation process. According to the Independent Operators Agreement (IOA) that the parties entered into, Albuquerque Tortilla required that D& D maintain insurance, adhere to time frames and the store policies of its retail and restaurant customers, rotate the product on the shelves in retail stores, and maintain an adequate inventory. The IOA expressly states that " any personnel employed or otherwise utilized by either" party will not be an employee but, instead, will be characterized as " contract labor."
D& D was already distributing bakery products in part of the territory under contract. Lathram made some of the deliveries himself, and he hired Johnny Marmolejo Sr. to make deliveries in other areas. Johnny Marmolejo Jr. made the deliveries during the week while his father was at work at his full-time job, and when his father was off work, the Marmolejos made deliveries together. Marmolejo Sr. arranged to use an Enterprise truck to make deliveries, and on at least one occasion, Marmolejo Jr. used his personal truck to pull a trailer to make his deliveries.
One early morning as Marmolejo Jr. was driving to Hobbs, New Mexico, for a delivery, he rear-ended a vehicle driven by Dora Jo Motloch; she had stopped in the left lane to make a left-hand turn. Marmolejo Jr. was traveling almost seventy miles per hour when he struck the vehicle. Dora Jo Motloch was severely injured, and both passengers, including her husband, were killed. Motloch sued, among others, the Marmolejos, Lathram, D& D, and Albuquerque Tortilla.
The trial court rendered summary judgment in favor of Albuquerque Tortilla, severed those claims, and ordered that they be dismissed with prejudice. On appeal, Motloch contends that the trial court erred when it granted summary judgment for Albuquerque Tortilla because it " did not conclusively establish its right to judgment on [three] of ...