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Austin Bridge & Road, LP v. Suarez

Court of Appeals of Texas, First District

May 3, 2018

AUSTIN BRIDGE & ROAD, LP, Appellant
v.
RAQUEL SUAREZ, LUCILA SUAREZ, RAQUEL SUAREZ, RUBEN DARIO SUAREZ, INDIVIDUALLY AND AS HEIRS TO AND REPRESENTATIVES OF THE ESTATE OF JOSE DARIO SUAREZ, DECEASED, Appellees

          On Appeal from the 151st District Court Harris County, Texas Trial Court Case No. 2014-11694

          Panel consists of Justices Jennings, Keyes, and Higley.

          OPINION

          Evelyn V. Keyes Justice

         Appellant, Austin Bridge & Road, LP (Austin Bridge), challenges the trial court's judgment rendered on a jury verdict awarding more than $17 million dollars to appellees Raquel Suarez, Lucila Suarez, Raquel Suarez, and Ruben Dario Suarez, individually and as heirs to and representatives of the Estate of Jose Dario Suarez, deceased (collectively, the Suarezes). In six issues, Austin Bridge argues that: (1) the exclusive-remedy provision of the Texas Workers' Compensation Act (TWCA) bars the Suarezes' negligence claims because Baylor University (Baylor), as the owner of the project on which Jose Suarez was killed, purchased an owner-controlled insurance program (OCIP) that covered all subcontractors and sub-subcontractors, including Austin Bridge and Suarez's employer Derr & Isbell Construction, LLC (Derr & Isbell), and the Suarezes received death benefits under the OCIP workers' compensation policy; (2) the trial court erred in granting the Suarezes' no-evidence summary judgment motion on Austin Bridge's exclusive-remedy defense and in denying Austin Bridge's cross-summary judgment motion, motion for reconsideration, motion for directed verdict, and motion for judgment notwithstanding the verdict on its exclusive-remedy defense; (3) alternatively, the evidence was legally and factually insufficient to support the jury's finding that Austin Bridge exerted actual control over the operative details of the specific injury-producing activity or to support the jury's findings on proximate cause; (4) the evidence was legally and factually insufficient to support the jury's gross negligence and vice principal findings; (5) the evidence was legally and factually insufficient to support the jury's findings regarding Derr & Isbell's proportionate responsibility on the Suarez's negligence; and (6) portions of the jury's damages award were excessive and not supported by the great weight and preponderance of the evidence.

         Because we conclude that Austin Bridge established its exclusive-remedy defense as a matter of law and there is no evidence supporting the jury's gross negligence findings, we reverse the trial court's judgment and render judgment that the Suarezes take nothing.

         Background

         Suarez, an employee of Derr & Isbell, performed steel work for the building of a bridge across the Brazos River in connection with the construction of Baylor University's McLane Stadium (the Project). On January 28, 2014, Suarez was working on a "man-lift" supported on a barge on the Brazos River. He and his coworker Terry Watson-who was operating the man-lift at the time of the accident-were both wearing safety tethers, or "man-ties, " connecting them to the lift. The lift fell off the barge into the Brazos River. Watson was able to swim to safety, but Suarez was unable to free himself and drowned.

         A. The "Prime" Contract between Baylor and Austin Commercial

         The Project involved numerous contractors and multiple contracts. Baylor, as the owner of the worksite (the Owner), purchased an OCIP, which cost it nearly $300, 000, and it required all of the contractors and subcontractors to enroll in the OCIP. Baylor executed a contract with Austin Commercial, LP (Baylor/Austin Commercial Contract or the Prime Contract) as the general contractor for the Project (the Construction Manager at Risk or General Contractor) on August 9, 2012.[1] As part of the general conditions of the Prime Contract, Baylor agreed that it

has arranged with Aon Risk Services Southwest, Inc. (the "OCIP Administrator") for the Project to be insured under its Owner Controlled Insurance Program (the "OCIP"). Parties performing labor or services at the Site shall be eligible to enroll in the OCIP as provided below unless they are Excluded Parties (as defined below). The OCIP will provide to Enrolled Parties (as defined below) Workers' Compensation and Employer's Liability insurances, Commercial General Liability insurance, and Excess Liability insurances, as summarily described below, in connection with the performance of the Work (collectively, the "OCIP Coverages").

         The OCIP covered "Enrolled Parties, " which were defined as including the "Owner, the OCIP Administrator, the Construction Manager at Risk [Austin Commercial] and Subcontractors and Sub-Subcontractors that are granted insured status on the OCIP Policies."

         The Prime Contract required Austin Commercial and its Subcontractors to enroll in the OCIP:

Construction Manager at Risk [Austin Commercial] shall apply for enrollment in the OCIP within five (5) days of receipt of a Notice to Proceed, shall maintain enrollment in the OCIP, and shall ensure that its eligible Subcontractors and/or Sub-Subcontractors apply for enrollment in the OCIP, and maintain enrollment in the OCIP, within five (5) days of their receipt of a Notice to Proceed, and prior to the commencement of Work at the Site.

         The Contract further provided that Baylor, as Owner, might elect to modify or discontinue the OCIP and that it would then bear the cost of replacement insurance:

[Baylor] may, for any reason, modify the coverage provided by the OCIP Policies, discontinue the OCIP or any part thereof, or request that [Austin Commercial] or any of its Subcontractors or Sub-Subcontractors withdraw from the OCIP upon thirty (30) days written notice. Upon such notice [Austin Commercial] and/or one or more of its Subcontractors or Sub-Subcontractors, as specified by [Baylor] in such notice, shall obtain and thereafter maintain during the performance of the Work, all (or a portion thereof as specified by [Baylor]) of the OCIP Coverages. The form, content, limits of liability, cost, and the insurer issuing such replacement insurance shall be subject as set forth in Section 5.10 above. The cost of the replacement insurance shall be at [Baylor's] expense, but only to the extent of the applicable Costs of the OCIP Policies.

         The Prime Contract also incorporated the OCIP manual, stating that Austin Commercial, the General Contractor, "shall comply with all the requirements set forth in [this contract], the Insurance Manual, and the OCIP Policies and the Builder's Risk Insurance policies." The Contract defined "Insurance Manual" as "the manual of OCIP procedures prepared by the OCIP Administrator [Aon] in connection with the OCIP, copies of which will be provided by the OCIP Administrator to all bidders prior to submission of any bids." The OCIP manual stated, among other things, that participating contractors "shall provide details necessary for OCIP enrollment, " including providing all "information requested on the Enrollment Application form, " which was to "be completed and submitted to the OCIP Administrator within 5 days of a Notice to Proceed and prior to the commencement of work to obtain coverage under the OCIP." Aon, as the OCIP Administrator, would then "issue to each Enrolled Party a Welcome Letter and an OCIP Certificate of Insurance acknowledging acceptance of the applicant into the OCIP. The Insurance Carrier will issue a separate Workers' Compensation policy to each Enrolled Party."

         Finally, the Prime Contract required that Austin Commercial "shall incorporate the terms of this Article 5 [setting out the details for insurance coverage] into all subcontract agreements."

         B. Austin Commercial's Subcontract with Appellant Austin Bridge

         Austin Commercial then subcontracted with its subsidiary, and the appellant here, Austin Bridge (the Austin Commercial/Austin Bridge Subcontract). The Austin Commercial/Austin Bridge Subcontract was comprised of multiple documents, including: (1) the "Master Subcontract Agreement, " dated April 11, 2011, setting out the general provisions governing the relationship between Austin Commercial and Austin Bridge; (2) the "Work Order, " also referred to as "Exhibit AA, " dated June 24, 2013, which was attached to the Master Subcontract Agreement and set out the specific terms of Austin Bridge's work on the Baylor Project; and (3) multiple other exhibits to the Master Subcontract Agreement that set out specific terms governing the Project.

         The Master Subcontract Agreement stated that the project name and location were "[v]arious projects as specially defined in per project work orders, Exhibit AA." It expressly incorporated the Prime Contract: "Each party to this Agreement acknowledges that it is familiar with the terms of the Prime Contract, and agrees that the Prime Contract (including the contract documents incorporated therein) is incorporated herein, in its entirety for all purposes as if copied at length and attached hereto." It also stated, "In the event of a discrepancy between the Prime Contract and this Agreement, this Agreement shall govern."

         Exhibit AA, referenced in the Master Subcontract Agreement as setting out the specifications for each project, stated that it covered work on the Baylor Stadium. It also contained a list of exhibits, including an Exhibit C concerning "Insurance Requirements, " and it provided that "Exhibits included in the Work Order supersede those issued with the Master Subcontract Agreement [i.e., the Austin Commercial/Austin Bridge Subcontract]." Exhibit C required various types of insurance coverage and specifically stated, "Subcontractor [Austin Bridge] and its sub-subcontractors shall provide, at their own expense, Workers Compensation to cover full liability under the Workers Compensation Laws of the jurisdiction in which the Project is located at the statutory limits required by said laws." Exhibit D to the Austin Commercial/Austin Bridge Subcontract contained "special conditions, inclusions, and exclusions, " and it provided a breakdown of the "Subcontract Amount." It stated that Austin Bridge would be paid $9, 099, 000 for the described work on the Project and included an "OCIP Deduct" of $98, 000. The record also indicates that Austin Bridge was provided with a copy of the OCIP Manual as part of this Subcontract.

         C. Austin Bridge's Subcontract with Derr & Isbell

         Austin Bridge then subcontracted with Derr & Isbell, Suarez's employer, to complete certain portions of the steelwork in constructing the bridge across the Brazos River. Similar to the Austin Commercial/Austin Bridge Subcontract, the contract between the parties (the Austin Bridge/Derr & Isbell Subcontract) was comprised of a Master Subcontract Agreement, dated July 6, 2012, a "Work Order, " dated August 8, 2012, and attached Exhibits. The agreement between these two parties incorporated the terms of the Prime Contract, stating, "Each Party to this Agreement acknowledges that it is familiar with the terms of the Prime Contract, and agrees that the Prime Contract (including the contract documents incorporated therein) is incorporated herein in its entirety for all purposes as if copied at length and attached hereto." The Austin Bridge/Derr & Isbell Subcontract also contained a list of exhibits, including Exhibit C.1 regarding "Insurance Requirements" and Exhibit D providing "Special Conditions, Inclusions, and Exclusions." Exhibit C.1 required various types of insurance coverage and specifically stated, "Subcontractor [Derr & Isbell] and its sub- subcontractors shall provide, at their own expense, Workers Compensation to cover full liability under the Workers Compensation Laws of the jurisdiction in which the Project is located at the statutory limits required by said laws."

         Exhibit D to the Austin Bridge/Derr & Isbell Contract stated, as "Special Condition AK, " that "OCIP enrollment is required. OCIP manual and enrollment forms are attached. Completed forms must be returned at least five days prior to starting work." (Emphasis in original).

         D. Contractor and Subcontractors, including Austin Bridge and Derr & Isbell, Enrolled in the OCIP

         Austin Commercial enrolled in the Baylor Stadium OCIP. The record contains a letter dated August 8, 2013, from Aon, the OCIP Administrator, to Austin Commercial, the General Contractor, referencing the "Baylor University Stadium (OCIP) [and] WC Policy Renewal: C4737652A 08/09/13-08/09/2014." The letter stated, "In accordance with instructions we received from Baylor University, we have renewed coverage for your firm on the Baylor University Stadium OCIP with ACE American Insurance Company effective 08/09/2013." It also included a certificate of insurance, which showed that Austin Commercial's workers' compensation coverage was effective from August 9, 2013 until August 9, 2014. The record also contains a copy of Austin Commercial's Workers' Compensation and Employers Liability Insurance Policy for the Project, issued by Ace American Insurance Company showing the policy period as August 9, 2013 to August 9, 2014. The policy stated,

The policy does not cover work conducted at or from: ANY LOCATION EXCEPT: BAYLOR UNIVERSITY OCIP: FOOTBALL STADIUM THAT WILL BE SIUTATED ALONG THE NORTH BANK OF THE BRAZOS RIVER ON THE CAMPUS OF BAYLOR UNIVERSITY. INTERSTATE 35 FORMS THE WESTERN BOUNDARY OF THE SITE, AND MARTIN LUTHER KING, JR. BOULEVARD FORMS THE NORTH BOUNDARY. THE EASTERN PORTION OF THE SITE IS PARTIALLY OCCUPIED BY A LAGOON THAT IS CONNECTED TO THE RIVER.

         The policy also included a "Controlled Insurance Program-Amendatory Endorsement" which stated that "[t]his endorsement applies because the policy is providing workers compensation coverage as part of a Controlled Insurance Program." The policy listed Baylor University as the "Project Sponsor."

         Austin Bridge likewise enrolled in the OCIP. The record contains a letter from Aon to Austin Bridge, dated July 19, 2013, stating that it had been "enrolled into the Baylor University Stadium's OCIP for Work performed under contract number L 0035, " and another letter dated August 8, 2013, reflecting that its enrollment had been renewed. The record also includes a certificate of liability insurance showing workers' compensation coverage effective August 9, 2013 through August 9, 2014. Finally, the record contains a copy of Austin Bridge's workers' compensation insurance policy, issued by Ace American Insurance Company, showing a policy period of August 9, 2013 to August 9, 2014. This worker's compensation insurance policy contained a "Designated Workplaces Exclusion Endorsement" identical to the one in Austin Commercial's policy, stating that the coverage applied only to work performed at the "Baylor University OCIP" for construction of the football stadium. And, identically to the Austin Commercial policy, it had a "Controlled Insurance Program-Amendatory Endorsement" stating that "[t]his endorsement applies because the policy is providing workers compensation coverage as part of a Controlled Insurance Program" and designating Baylor University as the "Project Sponsor."

         Derr & Isbell also enrolled in the OCIP. The record contains a letter dated November 21, 2013, from Aon referencing the "Baylor University Stadium Owner Controlled Insurance Program (OCIP)" and "Enrollment - Notification for Contract Number: L 0035-04 [and] WC Policy Number: C47376658." The letter stated that Derr & Isbell had been "enrolled into the Baylor University Stadium's OCIP for Work performed under contract number L 0035-04." It also informed Derr & Isbell that "Baylor University is responsible for all premium payments, " and it asked Derr & Isbell to "[r]eport all claims in accordance with the OCIP Insurance Manual." The letter was accompanied by a certificate of liability insurance showing that workers' compensation coverage was in effect from August 9, 2013, through August 9, 2014.

         The record also contains a copy of Derr & Isbell's workers' compensation insurance policy, which is essentially identical to the ones issued to Austin Commercial and Austin Bridge. This policy was issued by Ace American Insurance Company and showed the policy period as being from August 9, 2013, to August 9, 2014. It included the same "Designated Workplaces Exclusion Endorsement" as the other two policies, stating that it covered only work performed as part of the "Baylor University OCIP" in constructing the football stadium, and it included a "Controlled Insurance Program-Amendatory Endorsement" that was identical to the other two policies. That endorsement stated, "This endorsement applies because the policy is providing workers compensation coverage as part of a Controlled Insurance Program." It identified Baylor University as the "Project Sponsor" and stated, "The Project Sponsor will pay all premium[s] when due. The Project Sponsor will pay the premium even if part or all of a workers compensation law is not valid."

         E. The Suarezes Applied for and Received Death Benefits Under Derr & Isbell's Insurance Policy Issued under Baylor's OCIP

         In January 2015, Suarez's family applied for workers' compensation benefits from Derr & Isbell against the insurance policy issued to Derr & Isbell through the OCIP. The record contains documentation from the Texas Department of Insurance and from a law firm purporting to represent Suarez's family, reflecting that Suarez's widow filed a "Beneficiary Claim for Death Benefits."

         The record also includes an affidavit and transaction log from a Senior Claims Specialist in Workers' Compensation Claims for the third-party claims administrator reflecting the payments that issued to the Suarezes as a result of their claim. In the affidavit, the claims specialist identified the workers' compensation insurance policy "issued by ACE American Insurance Company to Derr & Isbell Construction, LLC, with a policy period of August 9, 2013, through August 9, 2014, " stating that "[t]his policy was in effect at the time of Jose Dario Suarez's death on January 28, 2014."

         F. The Suarezes' Lawsuit

         The Suarezes filed this suit against Austin Bridge, Derr & Isbell, Austin Commercial, and several other entities not relevant to this appeal. With respect to Austin Bridge, the Suarezes alleged causes of action for negligence and gross negligence. They asserted that Austin Bridge "participated in safety planning, implementation and enforcement for the pedestrian bridge job" and that its actions "constitute[d] negligence which [was] a proximate cause of the incident."

         Austin Bridge filed an answer and asserted an "exclusive remedy" affirmative defense, alleging that it was "a member of an Owner Controlled Insurance Program organized under Texas Labor Code 406.123 and as such [is] considered employers of the deceased whose exclusive remedy for negligence is a claim under the Texas Workers Compensation Act, Texas Labor Code 408.001."

         It subsequently filed a traditional motion for summary judgment based on the TWCA's exclusive-remedy provision, which provides that recovery of workers' compensation benefits is the exclusive remedy of an employee covered by workers' compensation insurance coverage against his employer, and it argued that because the Project was insured under the Baylor Stadium OCIP, Austin Bridge was deemed a statutory employer of Suarez. Austin Bridge attached copies of the above-described construction contracts and insurance policies. The Suarezes filed a no-evidence motion for summary judgment on the same issue, contending that Austin Bridge had no evidence to support its affirmative defense. The trial court eventually denied Austin Bridge's traditional motion for summary judgment and granted the Suarezes' no-evidence motion, rejecting Austin Bridge's exclusive-remedy affirmative defense pre-trial.

         At trial, the Suarezes presented evidence regarding the details of the accident. It also presented evidence regarding the roles of the various contractors, including Austin Commerical, Austin Bridge, and Derr & Isbell, in the work that Suarez was performing at the time he died. The parties presented evidence of various safety standards and the safety practices of the various contractors.

         Following the close of the Suarezes' case, Austin Bridge moved for a directed verdict based on the TWCA's exclusive-remedy provision, arguing that it had established its entitlement to that defense as a matter of law, essentially reasserting its arguments from its motion for summary judgment. It introduced into evidence the above-referenced documentation such as the various construction contracts, insurance policies, and details of the payout the Suarezes received from Derr & Isbell under the OCIP policy. The trial court denied this motion, stating, "On the OCIP issues, I've already ruled. I'm not changing my ruling. That motion for directed verdict is denied." Austin Bridge again asserted its exclusive-remedy defense during the jury charge conference and in a motion for judgment notwithstanding the verdict without receiving relief from the trial court.

         The jury found that Austin Bridge "exercise[d] some control over the manner in which the pedestrian bridge work was performed, other than the right to order the work to start or stop or to inspect progress or receive reports." The jury further found Austin Bridge, but not Derr & Isbell, negligent in Suarez's death, and it determined that Austin Bridge was 100% responsible for Suarez's death. The jury awarded $5 million for Jose Suarez's pain and mental anguish; $7.72 million to his widow for his lost earning capacity, loss of companionship, and mental anguish; and $1 million to each of his children. Finally, the jury found "by clear and convincing evidence that the harm to Jose Suarez resulted from gross negligence" by Bob Beam, the Austin Bridge employee who was supervising the construction of the bridge, and it awarded $2 million in exemplary damages based on its gross negligence finding.

         The trial court rendered judgment on the jury verdict and this appeal followed.

         Exclusive-Remedy Affirmative Defense

         In its first two issues on appeal, Austin Bridge argues that the trial court erred in rejecting its exclusive-remedy affirmative defense when it ruled on the parties' motions for summary judgment and on Austin Bridge's motion for directed verdict, charge objections, and motion for JNOV.

         A. Standard of Review

         As a preliminary matter, the Suarezes argue that this Court cannot review the trial court's pre-trial order granting their no-evidence motion for summary judgment and denying Austin Bridge's traditional summary judgment motion on its exclusive-remedy affirmative defense. However, "[a] partial summary judgment is reviewable on appeal, where as here, it has been merged into a final judgment disposing of the whole case." DeNucci v. Matthews, 463 S.W.3d 200, 207 (Tex. App.-Austin 2015, no pet.); State Farm Fire & Cas. Co. v. Griffin, 888 S.W.2d 150, 153 (Tex. App.-Houston [1st Dist.] 1994, no writ). Furthermore, Austin Bridge reasserted its affirmative defense multiple times, including in a motion for directed verdict and in a motion for JNOV.

         Regardless of whether we consider the pretrial motions, the motion for directed verdict, or the JNOV, Austin Bridge must demonstrate that it established its affirmative defense as a matter of law to prevail on this issue on appeal. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (explaining that "matter of law" legal-sufficiency standard applies when adverse finding is one on which party bore burden of proof).

         For example, to prevail on a matter-of-law summary-judgment motion, the movant must establish that no genuine issue of material fact exists and that the trial court should grant judgment as a matter of law. See Tex. R. Civ. P. 166a(c); KPMG Peat Marwick v. Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). When a defendant moves for a matter-of-law 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 an affirmative defense, thereby defeating the plaintiff's cause of action. See Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995); Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995); Lujan v. Navistar Fin. Corp., 433 S.W.3d 699, 704 (Tex. App.-Houston [1st Dist.] 2014, no pet.). Once the movant meets its burden, the burden shifts to the non-movant to raise a genuine issue of material fact precluding summary judgment. Siegler, 899 S.W.2d at 197; Transcon. Ins. Co. v. Briggs Equip. Trust, 321 S.W.3d 685, 691 (Tex. App.-Houston [14th Dist.] 2010, no pet.). The evidence raises a genuine issue of material fact if reasonable and fair-minded factfinders could differ in their conclusions in light of all of the summary- judgment evidence. See Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007).

         Likewise, when a trial court's denial of a directed verdict is based on the evidence, the standard of review is a legal sufficiency or "no evidence" standard of review. See Flagstar Bank, FSB v. Walker, 451 S.W.3d 490, 498-99 (Tex. App.-- Dallas 2014, no pet.). A directed verdict is proper only under limited circumstances, such as when there is no evidence of an essential element of a claim or defense, or when the evidence conclusively establishes the right of the movant to judgment or negates the right of the opponent. See City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005); King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003); Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000). We use a legal sufficiency standard to review a trial court's denial of a motion for directed verdict. City of Keller, 168 S.W.3d at 823; King Ranch, 118 S.W.3d at 750-51. We review the evidence in the light most favorable to the nonmovant. City of Keller, 168 S.W.3d at 824. If "there is any evidence of probative value to raise an issue of material fact on the question presented, " the movant is not entitled to a directed verdict. Exxon Corp. v. Emerald Oil & Gas Co., L.C., 348 S.W.3d 194, 217 (Tex. 2011). On the other hand, to the extent that the trial court's ruling on a directed verdict is based on a question of law, an appellate court reviews that ruling de novo. See JSC Neftegas-Impex v. Citibank, N.A., 365 S.W.3d 387, 396 (Tex. App.--Houston [1st Dist.] 2011, pet. denied).

         A JNOV is proper when a directed verdict would have been proper. See Tex. R. Civ. P. 301; Fort Bend Cty. Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 394 (Tex. 1991). And the standard of review for the denial of a motion for JNOV is the same as for the denial of a motion for directed verdict. City of Keller, 168 S.W.3d at 823 ("[T]he test for legal sufficiency should be the same for summary judgments, directed verdicts, judgments notwithstanding the verdict, and appellate no-evidence review.").

         B. Statutory Framework

         The TWCA "provides reciprocal benefits to subscribing employers and their employees." TIC Energy & Chem., Inc. v. Martin, 498 S.W.3d 68, 72 (Tex. 2016). When employers maintain workers' compensation insurance coverage for their employees, the injured employees "are guaranteed prompt payment of their medical bills and lost wages without the time, expense, and uncertainty of proving liability under common-law theories" in exchange for prohibiting them "from seeking common-law remedies from their employers by making workers' compensation benefits an injured employee's exclusive remedy." Id. at 72-73.

         Accordingly, the TWCA, set out in the Texas Labor Code, contains an exclusive-remedy provision, which states that "[r]ecovery 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 for the death of or injury sustained by the employee." Tex. Labor Code Ann. § 408.001(a) (West 2015); TIC Energy, 498 S.W.3d at 69. "The exclusive-remedy defense extends to the employer's servants, meaning covered employees secure additional benefits under the [TWCA] in the form of protection from personal-injury claims by co-workers." TIC Energy, 498 S.W.3d at 73 (citing Tex. Labor Code Ann. § 408.001(a)).

         Labor Code section 406.123 allows a contractor and subcontractor to enter into a written agreement to provide workers' compensation insurance coverage to the subcontractor and its employees, which permits the general contractor to become a statutory "employer" of the subcontractor and its employees for purposes of applying the exclusive-remedy provision of the TWCA:

(a) 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.
. . . .
(e) An agreement under this section makes the general contractor the employer of the subcontractor and the subcontractor's employees only for purposes of the ...

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