Appeal from the 151st District Court Harris County, Texas
Trial Court Case No. 2014-11694
consists of Justices Jennings, Keyes, and Higley.
V. Keyes Justice
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.
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.
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.
The "Prime" Contract between Baylor and
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. 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").
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."
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.
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.
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
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
Austin Commercial's Subcontract with Appellant
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
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
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.
Austin Bridge's Subcontract with Derr &
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
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).
Contractor and Subcontractors, including Austin
Bridge and Derr & Isbell, Enrolled in the OCIP
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.
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."
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
& 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.
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
The Suarezes Applied for and Received Death Benefits
Under Derr & Isbell's Insurance Policy Issued under
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
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."
The Suarezes' Lawsuit
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."
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."
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.
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.
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.
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.
trial court rendered judgment on the jury verdict and this
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.
Standard of Review
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.
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).
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).
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.
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.").
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.
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)).
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