Court of Appeals of Texas, Eighth District, El Paso
from the County Court at Law Number Three of El Paso County,
Texas (TC# 2017-DCV0027)
Alley, C.J, Rodriguez, and Palafox, JJ
ALLEY, CHIEF JUSTICE.
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.
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.
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") 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
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.
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.
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.
The Exclusive Remedy Defense and Temporary Workers.
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.
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.
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."