Appeal from the 234th District Court Harris County, Texas
Trial Court Cause No. 2013-68929
consists of Chief Justice Frost and Justices Jamison and
HILL JAMISON, JUSTICE.
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. 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
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.
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
. . . . 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.
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."
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.
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.
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. 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.
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.
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
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
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.
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
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.
Standards of review
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.
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.
Application of the TWCA Exclusive-Remedy Provision to