AmeriGas Propane, L.P. v. Aboytes-Muñiz
| Decision Date | 16 May 2019 |
| Docket Number | NO. 09-18-00122-CV,09-18-00122-CV |
| Parties | AMERIGAS PROPANE, L.P., Appellant v. JOSE FRANCISCO ABOYTES-MUÑIZ, ANDY MEDINA-CARDENAS AND BERNABE BUSTILLO-RIVERA, Appellees |
| Court | Texas Court of Appeals |
On Appeal from the 284th District Court Montgomery County, Texas
This is a permissive appeal of a grant of a partial no-evidence motion for summary judgment and the denial of a traditional motion for summary judgment in a lawsuit concerning a workplace injury. The Appellees allege that they were injured at AmeriGas Propane, L.P.'s (AmeriGas or Defendant) propane-filling facility in Conroe, Texas. This Court previously entered an order accepting the permissive appeal. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(d), (f) (West Supp. 2018).1 We reverse and remand.
Background
Underlying Facts
The record before us indicates that AmeriGas Propane, L.P. is a limited partnership organized in Delaware. AmeriGas Propane, Inc. (AG Inc.) is the general partner of AmeriGas Propane, L.P. AmeriGas Propane, L.P. is a subsidiary of UGI Corporation (UGI).
According to the record before us, Defendant AmeriGas Propane, L.P. owns and operates the "AmeriGas Cylinder Exchange" facility in Conroe, Texas, where, as AmeriGas explains, empty propane tanks are delivered, cleaned, refilled with propane, and redistributed for sale. On November 6, 2012, while workers at the AmeriGas Cylinder Exchange were refilling the tanks, gas escaped, ignited, and caused a fire. Several of the workers, including Roberto Cabrera (Roberto), Jose Francisco Aboytes-Muñiz (Jose), Andy Medina-Cardenas (Andy), and Bernabe Bustillo Rivera (Bernabe) allege they sustained injuries from the accident.
In August of 2015, Roberto filed an original petition against defendant AmeriGas Propane, L.P., alleging that he was injured at the AmeriGas facility and asserting tort claims against AmeriGas. Appellant and Appellees state in their briefs that AmeriGas Propane, L.P. and Roberto settled and therefore Roberto is not a party to this appeal. We discuss any other facts relating to Roberto herein only as necessary to the issues on appeal.
In September of 2015, Jose, Andy, and Bernabe (collectively "Intervenors") filed petitions in intervention in Roberto's lawsuit against AmeriGas. In their petitions, Intervenors alleged claims against AmeriGas for premises liability, negligence, and gross negligence arising out of the accident. AmeriGas filed an answer and asserted a general denial and affirmative defenses of statute of limitations and exclusive remedy under the Texas Workers' Compensation Act (TWCA).
No-Evidence Motion for Summary Judgment
In 2016, Roberto filed a no-evidence motion for partial summary judgment, which was joined by the Intervenors, in which Roberto and the Intervenors argued that "[t]here is no evidence that AmeriGas Propane, L.P., was a named insured subscriber to a policy of workers' compensation insurance at the time of the incident made the basis of this suit." AmeriGas filed a response and a counter-motion forsummary judgment as to Roberto only. AmeriGas explained in its response that it is a subsidiary of the parent corporation UGI, which operates various energy and utilities businesses. AmeriGas alleged that UGI's domestic propane business is conducted through AmeriGas, and that AmeriGas's general partner is AG Inc. According to AmeriGas, it is the operating partnership and holds title to the real property involved in the accident at issue in this lawsuit. But, AG Inc. manages AmeriGas's operations and payroll and executes contracts on behalf of AmeriGas. According to AmeriGas, it can only act through AG Inc., its general partner.
AmeriGas argued that it was insured under a workers' compensation policy obtained by UGI and issued by ACE Indemnity Insurance Company of North America (ACE), policy number C46784583, and the policy did not specifically name AmeriGas as a named insured due only to an administrative error. AmeriGas further argued that it paid insurance premiums on policy C46784583, that an endorsement was issued at a later date naming AmeriGas as a named insured on policy C46784583 in order to correct the administrative error, and that AmeriGas had paid and Roberto had accepted over $500,000 in workers' compensation benefits under policy C46784583. AmeriGas supported its response and counter-motion with affidavits and documents.
Intervenors filed a reply in which they argued that policy C46784583 named UGI Corporation and AmeriGas Propane, Inc., but not AmeriGas Propane, L.P. Intervenors also argued that the endorsement that was added to the UGI policy in 2016 was an attempt to "retroactively change the policy" three years after the policy had expired. The Intervenors attached an affidavit from Brad McClellan, an attorney who is board certified in workers' compensation law, who opined that the mutual mistake argument and the retroactive revision to the UGI policy should not be allowed. The trial court entered an Order dated November 28, 2017, granting Plaintiff and Intervenors' partial no-evidence motion for summary judgment and denying AmeriGas's counter-motion for traditional summary judgment as to Roberto.
AmeriGas's Traditional Motion for Summary Judgment as to Intervenors
Thereafter, AmeriGas filed a traditional motion for summary judgment on the Intervenors' claims, which incorporated by reference evidence and pleadings previously submitted with its response to the partial summary judgment and counter-motion against Roberto. AmeriGas argued that, at the time of the incident, Intervenors were employed by F.W. Services, Inc., which was doing business as Pacesetter Personnel Services (Pacesetter). According to AmeriGas, Pacesetter had a workers' compensation policy that covered the Intervenors, and the policycontained an "Alternate Employer Endorsement" that states that workers' compensation "will apply as though the alternate employer is insured." AmeriGas also argued it had workers' compensation coverage through its own insurer at the time of the incident. AmeriGas attached additional affidavits and documents as evidence of coverage under its own policy, including a certificate of insurance, information from the underwriting file, and AmeriGas's payroll data used to determine premiums.
Jose filed a response to AmeriGas's motion for summary judgment in which he argued that AmeriGas cannot claim coverage under Pacesetter's workers' compensation policy because Pacesetter and AmeriGas did not execute a written staff leasing contract and the Alternate Employer Endorsement does not name or refer to AmeriGas. Jose also argued that AmeriGas's motion for summary judgment merely restated the same arguments and presented the same evidence that the trial court had already considered and rejected. Jose asserted that "[i]t is undisputed that AmeriGas Propane, L.P. was not listed as a named insured on a workers' compensation policy at the time these workers were injured[]" as required by law.
Andy and Bernabe also filed a joint response to AmeriGas's motion for summary judgment. Therein, Andy and Bernabe argued that the question whether AmeriGas had workers' compensation insurance at the time of the incident hadalready been decided in the Intervenors' favor. Andy and Bernabe also argued that any evidence concerning Pacesetter's workers' compensation policy was untimely filed and should be excluded. The Intervenors argued that the Alternate Employer Endorsement in Pacesetter's policy does not apply to AmeriGas by its plain terms because there was no evidence of a staff leasing services agreement between Pacesetter and AmeriGas, and there was no evidence that Pacesetter held a staff leasing license.
AmeriGas contends that the Intervenors were employees of Pacesetter and borrowed servants of AmeriGas. In contrast, the Intervenors collectively argue that they were hired by Pacesetter but sent to the AmeriGas facility where they worked as "long-term employees" of AmeriGas. AmeriGas further contends that it was the Intervenors' "alternate employer[]" and that it supervised the Intervenors, controlled the details of their work, and owned the premises and equipment where the work was performed.
In his response to AmeriGas's motion for summary judgment, Jose agreed that AmeriGas supervised and controlled the work site and his work but Jose argued he was a "long-term employee" of AmeriGas. Jose testified in his deposition that he was employed by Pacesetter but AmeriGas employees were his bosses. In his amended petition, he alleged that "[a]t all times material to this case, AmeriGasPropane, L.P., employed [Jose] to work at a liquid propane cylinder filling facility in Conroe, Montgomery County, Texas."
In their response to AmeriGas's motion for summary judgment, Andy and Bernabe argued that their continuous employment for about half a decade at the AmeriGas facility reflected that their employment was "long-term or continuing" and not "temporary." In his deposition, Andy testified that his paychecks came from Pacesetter, but he received them at the AmeriGas offices and he had never been to Pacesetter's office. Bernabe testified that he worked at AmeriGas about six years before the accident and that he did not know who Pacesetter was.
Mark Birenbaum, Vice President of the Payroll Division for Pacesetter, attested in his affidavit that Pacesetter's records show that Andy and Bernabe were hired by Pacesetter and assigned to work at AmeriGas in Conroe. Birenbaum also stated that when Pacesetter's employees are employed at third-party facilities, the third-party client directs, controls, and supervises the work. Steven Richard, Operations Manager for AmeriGas in Conroe, attested in his affidavit that he supervised the activities of Andy and Bernabe at the time of the incident.
Order Denying AmeriGas's Motion for Summary Judgment and Granting Permissive Appeal
AmeriGas filed a ...
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