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Webester v. Gse Lining Technology LLC

Court of Appeals of Texas, Fourteenth District

December 21, 2017

LEE WEBESTER, Appellant
v.
GSE LINING TECHNOLOGY LLC, Appellee

         On Appeal from the 234th District Court Harris County, Texas Trial Court Cause No. 2013-68929

          Panel consists of Chief Justice Frost and Justices Jamison and Busby.

          MEMORANDUM OPINION

          MARTHA HILL JAMISON, JUSTICE.

         Appellant Lee Webester challenges the trial court's order granting summary judgment on his claims for premises liability and gross negligence. Webester sustained an injury while working as a temporary employee assigned to appellee GSE Lining Technology, LLC.[1] GSE moved for summary judgment on all claims, asserting, among other things, that the claims were barred by the exclusive remedy provision of the Texas Workers' Compensation Act ("TWCA"). Because GSE established as a matter of law that it was Webester's employer within the meaning of the TWCA at the time of the injury and that GSE was a subscriber to workers' compensation insurance, we affirm the trial court's summary judgment.

         Background

         Webester worked for Aerotek, Inc., a temporary staffing company, in the area of electrical maintenance and repair. Aerotek sources, recruits, screens, and assigns temporary employees to its various clients. One of its clients is GSE, a lining manufacturing company with a plant located in Houston.

         GSE and Aerotek operated under a Temporary Staffing Service Agreement. The Temporary Staffing Service Agreement expressly provided that temporary employees assigned by Aerotek to GSE would perform services for GSE "under the direction, supervision, and control of GSE." The agreement also provided that Aerotek would require its employees to acknowledge in writing that Aerotek and GSE were to be considered co-employers for purposes of the workers' compensation laws, and workers' compensation benefits under Aerotek's policy would be the sole and exclusive remedy for damages resulting from bodily injury. The policies and procedures statement signed by Webester contained these acknowledgements. The statement provided the following in pertinent part:

. . . . I further understand and agree that, for Workers' Compensation purposes only, I will be considered an employee of Aerotek's client, and that workers' compensation benefits are my exclusive remedy with respect to any injury I incur while on assignment.

         The statement further provided that Webester would hereby "WAIVE AND FOREVER RELEASE ANY RIGHTS [WEBESTER] MIGHT HAVE to make claims or bring suit against the Client of Aerotek for damages based upon injuries which are covered under such Workers' Compensation statutes."

         Aerotek sent Webester to interview with GSE supervisor Jerry Clark for work in the maintenance department at the GSE plant. During the interview Clark took Webester to the maintenance shop, where he tested Webester on his "knowledge in the electrical field" and asked Webester to draw a schematic. GSE then accepted Webester as a temporary employee for work in its maintenance department. Clark provided some initial instruction regarding the maintenance shop to Webester and had plans to train Webester on an extruder, though that did not ultimately happen.

         The maintenance department at GSE was in charge of repairing the equipment used in manufacturing the liners. Webester testified that his job was to repair any electronic issues. Webester received his assignments on a daily basis from either GSE supervisor Jerry Clark or, if Clark was not there, a GSE lead man or maintenance manager. On one occasion, the plant manager also asked Webester to create a maintenance protocol for a large transmission. Webester was assigned a tool box from GSE, in which he stored his own tools. Webester believed that he was the only person in the maintenance department who could perform control-circuitry repairs.

         When not working on electronic-related projects, Webester performed general housekeeping duties in the maintenance shop, such as cleaning the area and power washing tar off concrete.[2] Webester received his work schedule from GSE and was paid on an hourly basis. GSE required Webester to sign in and out, including lunch breaks, using a GSE time sheet each day. At the end of the week, GSE supervisors reviewed the time sheets, signed off on the hours worked, then submitted the time sheets to Aerotek. GSE paid Aerotek for the hours worked by temporary employees such as Webester, and then Aerotek, in turn, paid the employees based on the hours reported and approved. It is undisputed that Aerotek did not have any supervisors on site and did not provide any instructions to or supervision of Webester with regard to his work assignments at GSE.[3]

         A little over two weeks after starting at GSE, Webester suffered an injury while working. The GSE maintenance team lead on duty that day assigned Webester to assist with removing a broken sump pump. The pump was used to load and unload silos containing plastic pellets used to manufacture the liners. Webester, along with the GSE team lead and another GSE employee, worked to remove the bolts that hold the pump in place. Another GSE employee operated a forklift to remove the pump once the bolts were removed. Webester explained that when he removed the last bolt, the pump "snatched up, " and he was hit on his back by either the forklift arm or the pump. The hit knocked him to the ground and fractured two ribs, bruised his chest, and sprained his thoracic region.

         As noted above, the policies and procedures statement Webester signed with Aerotek stated that an injured employee would contact Aerotek if injured. Webester thus attempted to report his injury to Aerotek that day, but could not reach his contact. He returned to work at GSE the following day and was then able to report the injury to his contact at Aerotek. Later that afternoon, the Aerotek representative informed Webester that he had been laid off because things were slow at GSE.

         Aerotek filed the necessary paper work with its workers' compensation carrier and, after a contested hearing, Webester received benefits under Aerotek's workers' compensation policy. Webester then filed the underlying lawsuit against GSE, asserting claims for negligence and gross negligence. The claims were based on theories of premises liability and "business invitee liability." Webester alleged that GSE had a duty to provide a safe work environment and it breached that duty by creating an unreasonably dangerous condition, failing to reduce or eliminate the dangerous condition, and failing to properly train its employees. Webester sought, among other damages, lost wages, punitive or exemplary damages, and attorneys' fees.

         GSE filed a hybrid traditional and no-evidence motion for summary judgment on all claims asserted by Webester. GSE moved for traditional summary judgment on the grounds that Webester's claims were barred by the release contained in the Aerotek policies and procedures statement quoted above, and by the exclusive remedy provision contained in the TWCA. GSE also moved for traditional summary judgment on Webester's claims for lost wages and attorneys' fees, arguing these items are not compensable as a matter of law. Finally, GSE moved for no-evidence summary judgment on grounds that there was no evidence to support Webester's claims for negligence (based on premises liability), gross negligence, or punitive damages.

         The trial court granted summary judgment on all claims asserted by Webester without specifying the grounds. Webester filed the instant appeal challenging the trial court's summary judgment.

         Analysis

         Webester challenges the trial court's summary judgment in four issues. Webester first argues that the trial court erred in granting summary judgment on the basis of the release contained in the policies and procedures statement because it is unconscionable and does not meet the requirements of the express negligence doctrine. Second, he argues the trial court erred in granting summary judgment based on the exclusive remedy provision of the TWCA, claiming he was not an employee of GSE, was not working in furtherance of the day-to-day activities of GSE, and GSE did not control the details of his work. Third, Webester contends there was sufficient evidence to support his claims for gross negligence and punitive damages. Fourth, Webester argues he presented sufficient evidence to proceed on his negligence (premises liability) claim. Because we hold the summary judgment evidence conclusively established the applicability of the exclusive-remedy provision to all claims asserted by Webester, we dispose of this appeal based on the second issue, and need not address the other issues.[4]

         A. Standards of review

         We review de novo the trial court's ruling on a motion for summary judgment. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We consider the evidence in the light most favorable to the non-movant and indulge reasonable inferences and resolve all doubts in its favor. See City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005); Wyly v. Integrity Ins. Sols., 502 S.W.3d 901, 904 (Tex. App.-Houston [14th Dist.] 2016, no pet.). "We credit evidence favorable to the non-movant if reasonable fact finders could and disregard contrary evidence unless reasonable fact finders could not." Wyly, 502 S.W.3d at 904.

         To prevail on a traditional motion for summary judgment, the movant must establish that no genuine issue of material fact exists such that the movant is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c); Fielding, 289 S.W.3d at 848. When a defendant moves for summary judgment on an affirmative defense, the defendant must prove conclusively the elements of that defense, leaving no issues of material fact. Pustejovsky v. Rapid-Am. Corp., 35 S.W.3d 643, 646 (Tex. 2000); Sharp v. Kroger Tex. L.P., 500 S.W.3d 117, 119 (Tex. App.-Houston [14th Dist.] 2016, no pet.). The evidence raises an issue of fact only if reasonable and fair-minded jurors could differ in their conclusions in light of all of the summary judgment evidence. Sharp, 500 S.W.3d at 119.

         B. Application of the TWCA Exclusive-Remedy Provision to ...


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