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El Paso Tool and Die Company, Inc. v. Mendez

Court of Appeals of Texas, Eighth District, El Paso

December 4, 2019


          Appeal from the County Court at Law Number Three of El Paso County, Texas (TC# 2017-DCV0027)

          Before Alley, C.J, Rodriguez, and Palafox, JJ



         We granted El Paso Tool and Die Company, Inc. (El Paso Tool) the right to pursue a permissive appeal from the denial of a motion for summary judgment. See Tex.Civ.Prac. & Rem.Code Ann. § 51.014(d) and (f) (authorizing and setting forth standards for permissive appeals). The controlling legal issue that El Paso Tool advances is "[w]hether a general employee of a temporary staffing agency may also be an employee of the staffing agency's client company for purposes of the workers' compensation exclusive remedy provision." The answer to that question is undoubtedly "yes" under existing Texas Supreme Court precedent. But more specifically, El Paso Tool contends that the trial court applied the wrong legal standard to answer that question by looking to case law under the respondeat superior and borrowed servant doctrines, rather than the standard developed under the Texas Labor Code for determining who is the "employer" of an injured worker. On closer examination of the record, it is not clear to us that the trial court in fact applied the wrong standard. Rather, it may have simply found a genuine issue of material fact which precluded summary judgment. Accordingly, we conclude that the petition for permissive review was improvidently granted and remand the case to the trial court.

         I. Background

         Carlos Mendez lost all or parts of two fingers in an industrial accident on March 16, 2015. According to the allegations in his lawsuit, he was employed by Elwood Staffing at the time of the accident. He alleged that he was working as an independent contractor at El Paso Tool's facility. Specifically, he was working on a machine press that stamps out metal parts. When his hand was in the working area of the machine, the stamping press unexpectedly came down and crushed several of his fingers. His suit asserts common law negligence claims against El Paso Tool, and product liability claims against the alleged manufacturer of the machine press. Only the claims against El Paso Tool are before us.

         El Paso Tool filed a motion for summary judgment, supported by the affidavit of its President and sole shareholder, Salvador Robles. The affidavit claimed that Mendez was a temporary laborer supplied to El Paso Tool under a contract with Elwood Staffing. His affidavit stated that Mendez's duties required him to operate metal press machines, and that he was injured on one of those machines. The affidavit further claims that El Paso Tool was solely responsible for scheduling hours, assigning work, and supervising Mendez's daily activities. Robles also averred that Mendez was: (1) supervised only by El Paso Tool, and not Elwood Staffing at the time of the accident; (2) he was working at El Paso Tool's facility; and (3) using a machine press that it owned. Finally, the affidavit states that El Paso Tool had its own workers' compensation policy. From this, El Paso Tool urged that it was entitled to judgment as a matter law under the exclusive remedy defense found in the Texas Labor Code. (hereinafter "the Act")[1] The motion was based on El Paso Tool being a subscriber under the Act, and not that Elwood Staffing as a temporary employment agency provided workers' compensation insurance to all the employees that it sent to client companies.[2]

         Mendez's response to the summary judgment alleged that El Paso Tool did not control the specific details of his work at the time of his injury. Consequently, he asserted that he was not a "borrowed servant" or an "employee" of El Paso Tool at the time of the accident. Alternatively, he claimed that the evidence at least created a fact question on that issue. From the summary judgment evidence, we gather that there was no signed contract between El Paso Tool and Elwood Staffing, thus no written contractual term between those parties that defined Mendez's employment status. Rather, the parties relied only on affidavits and deposition testimony, either from Mendez or El Paso Tool witnesses.

         Mendez attached his own affidavit which states that no one from El Paso Tool "controlled the specific details of the work I was performing at the time of the incident[.]" El Paso Tool had indicated that Javier Berumen, Jr. was supervising Mendez's work. Mendez's affidavit, however, states that Berumen did not "supervise my work in any way and was not even present when the incident took place." Other than showing him how to turn the machine press on or off, he swore that no one from El Paso Tool trained him on how to do the job. Mendez also attached several depositions to his response that we describe in more detail below.

         The trial court denied El Paso Tool's motion. Its order states: "The Court finds that Tex.Lab.Code Ann. § 408.001 does not apply to the facts in this case because [Mendez] was working as an independent contractor and not an employee of [El Paso Tool] at the time of [Mendez's] accident." The order further finds that an interlocutory appeal would materially advance the ultimate termination of the lawsuit, and that the trial court's ruling turned on a controlling issue of law: whether the exclusive remedy defense under Section 408.001 "applies under the facts in this case." El Paso Tool then asked this Court for permission to appeal under Tex.Civ.Prac. & Rem.Code Ann. § 51.014(d) and (f) which we granted.

         II. Discussion

         A. The Exclusive Remedy Defense and Temporary Workers.

         As the Texas Supreme Court has observed, Texas has stood alone in not requiring private employers to provide workers' compensation insurance. Port Elevator-Brownsville v. Casados, 358 S.W.3d 238, 241 (Tex. 2012). Texas does, however, encourage private employers to secure coverage by (1) abolishing many common-law defenses in work-injury lawsuits if they do not subscribe, and (2) providing a bar to ordinary negligence suits if they do. Tex.Lab.Code Ann. § 406.033 (abolishing common-law defenses); Id. at § 408.001(a) (codifying exclusive remedy defense). Thus, an employer who subscribes to workers' compensation insurance may raise the exclusive remedy provision as a bar to a negligence claim filed against it. Casados, 358 S.W.3d at 241.[3]

         To invoke the exclusive remedy provision, a defendant must generally show that: (1) the injured worker was an employee of the defendant at the time of the work-related injury, and (2) the injured worker was covered by workers' compensation insurance. See Tex.Lab.Code Ann. § 408.001(a). An employee, however, may have more than one employer at the time of an injury for the purposes of the exclusive remedies defense. In Wingfoot Enterprises v. Alvarado, for instance, an injured worker sued both his employee leasing company and its client company following the worker's on-the-job-injury. 111 S.W.3d 134, 135 (Tex. 2003). The leasing company obtained a summary judgment based on the exclusive remedy defense because it had provided workers' compensation insurance. Id. at 136. The case proceeded to trial against the client company. The jury found that the worker was the "borrowed servant" of the client company, which entitled the client company to the exclusive remedy defense. Id. The worker then challenged on appeal the summary judgment in favor of the leasing company, contending that there could be only one employer. The Texas Supreme Court disagreed: "[W]e conclude that the Act's decided bias in favor of employers electing to provide coverage for their employees supports our conclusion that the Act permits more than one employer for workers' compensation purposes." Id. at 140. Wingfoot's holding protects temporary workers who have one general employer but may move around to different worksites for different client companies. "[A]n employee should not be placed in the position of trying to determine . . . which of two entities was his or her employer on any given day[.]" Id.

         The flipside--and thus the issue presented here--arose in Garza v. Excel Logistics, Inc., 161 S.W.3d 473 (Tex. 2005). In Garza, the client company sought to raise the exclusive remedy defense. Id. at 476. That court first had to decide if the worker was the "employee" of the client company. Id. The Labor Code defines an "employee" as "each person in the service of another under a contract of hire, whether express or implied, or oral or written." ...

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