Arnold v. Gonzalez

• Decision Date: 28 August 2015
• Docket Number: NUMBER 13-13-00440-CV
• Parties: DANIEL E. ARNOLD, Appellant, v. GERARDO GONZALEZ, Appellee.
• Court: Texas Court of Appeals

DANIEL E. ARNOLD, Appellant, v. GERARDO GONZALEZ, Appellee.

NUMBER 13-13-00440-CV

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

August 28, 2015

On appeal from the 398th District Court of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Garza and Perkes

Memorandum Opinion by Chief Justice Valdez

Appellant, Daniel E. Arnold, appeals the judgment in favor of appellee, Gerardo Gonzalez. By four issues, Arnold contends: (1) Gonzalez's suit against him is barred by the Workers' Compensation Act; (2) the trial court abused its discretion when it refused to submit his requested jury question regarding the right to control; (3) the evidence is legally and factually insufficient to support the jury's award of damages for Gonzalez'sloss of future earning capacity; and (4) the trial court erred in imposing joint and several liability on Arnold for damages caused by Gonzalez's employer. We affirm.

I. BACKGROUND

Gonzalez performed maintenance on forklifts for A-W Produce Company ("AW"). Arnold is the president of AW. Gonzalez injured his arm while working as an employee of AW. On the morning of the accident, Javier Luna, an AW supervisor, asked Gonzalez to help another employee, Jesus Montelongo, set up a section of a conveyor belt, which was located on property owned by Arnold. There was no guard on the belt because the set-up of the belt had not yet been completed. Gonzalez reached for a wrench and his hand got caught in the conveyor belt. Gonzalez broke his forearm in several places and sustained severe injuries requiring skin grafts. It is undisputed that Gonzalez's injury was covered by workers' compensation.

Gonzalez filed negligence and premises liability claims against Arnold, among other defendants. Evidence adduced at trial indicated that Arnold owned the warehouse where Gonzalez was injured and personally designed and assembled heavy machinery at the property including several conveyors. There is disputed evidence regarding whether AW leased the property from Arnold, but it is undisputed that Arnold owns the property where Gonzalez was injured. The evidence showed that much of the heavy machinery had never been moved since it had been installed. Gonzalez claimed that the emergency cut-off switch was located on the opposite wall from the conveyor belt and that the distance from the belt to the switch, in part, caused his injuries.

Arnold moved for summary judgment, arguing that under the Texas Labor Code section 408.001(a), the Texas Workers' Compensation Act ("TWCA"), worker'scompensation was Gonzalez's exclusive remedy for a work-related injury. See TEX. LAB. CODE ANN. § 408.001(a) (West, Westlaw through Ch. 46 2015 R.S.). Gonzalez responded that he was not suing Arnold in his capacity as his employer but only in his capacity as the premises owner.

At the jury trial, the trial court granted Gonzalez's motion in limine regarding any mention of workers' compensation. The parties stipulated that (1) Gonzalez was acting in the course and scope of his employment, (2) AW was a subscriber under the TWCA, and (3) Gonzalez received worker's compensation benefits for his injuries. The trial court denied Arnold's request to include a jury question on whether Arnold exercised or retained control over the manner in which the work was performed. The jury found that Arnold was negligent and that he was sixty-five percent responsible for Gonzalez's injuries. The jury also found AW twenty percent responsible as a designated responsible third party. The trial court made Arnold jointly and severally liable for all of the damages attributable to AW. The jury awarded $2,614,000 in past and future damages, including $465,000 in lost future earning capacity. Arnold filed a motion for judgment notwithstanding the verdict and motion for new trial. Both were denied. This appeal ensued.

II. EXCLUSIVITY OF REMEDY UNDER WORKERS' COMPENSATION ACT

By his first issue, Arnold contends that as a matter of law he was an employee of AW; thus, because Gonzalez received workers' compensation benefits, Gonzalez's suit against him is prohibited by the exclusivity provision of 408.001(a) of the TWCA, which provides that recovery of workers' compensation benefits is the exclusive remedy against the employer or an agent or employee of the employer for the death of, or a work-related injury sustained by, the employee. See TEX. LAB. CODE ANN. § 408.001(a). Gonzalezresponds that whether Arnold was in fact an employee of AW was disputed at trial, Arnold failed to request a jury question on the issue, and therefore, Arnold has waived his affirmative defense that workers' compensation exclusivity applies.

"Recovery of workers' compensation benefits is the sole remedy of an injured employee covered by workers' compensation insurance against the employer, agent of the employer, or employee of the employer, absent an intentional act to harm or gross negligence by the employer." Burkett v. Welborn, 42 S.W.3d 282, 287 (Tex. App.—Texarkana 2001, no pet.) (citing TEX. LAB. CODE ANN. § 408.001(a); Darensburg v. Tobey, 887 S.W.2d 84, 86-87 (Tex. App.—Dallas 1994, writ denied)). A co-employee accused of negligent conduct is exempt from tort actions by the exclusive remedy provision, and the immunity of the employer extends to co-employees. Burkett, 42 S.W.3d at 287; see also Lockett v. HB Zachry Co., 285 S.W.3d 63, 75 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (concluding that the employer was immune from premises liability cause of action because employee had received workers' compensation). However, Texas courts have determined that section 408.001's reference to "employee of the employer" includes only an employee for whose conduct the employer is legally responsible under the doctrine of respondeat superior. Burkett, 42 S.W.3d at 288-89; Darensburg, 887 S.W.2d. at 86-87 (explaining that in Texas, "[a]n 'agent, servant, or employee' within the meaning of Section 3(a) of the workers' compensation statute is one for whose conduct the employer would be legally responsible under the doctrine of respondeat superior"); see also Long v. Turner, 871 S.W.2d 220, 223 (Tex. App.—El Paso 1993, writ. denied) ("In addressing the meaning of the former 'exclusive remedy' statute, the Supreme Court has found that an agent, servant, or employee within the meaning of the statute is ordinarily one for whoseconduct the employer would, aside from the Workmen's Compensation Act, be legally responsible under the doctrine of respondeat superior.") (citing McKelvy v. Barber, 381 S.W.2d 59, 62 (Tex. 1964)). "In order to impose liability upon an employer for the negligence of his employee under the doctrine of respondeat superior, the acts of the employee must fall within the scope of the general authority of the employee and must be in furtherance of the employer's business and for the accomplishment of the object for which the employee was hired." Long, 871 S.W.2d at 224.

Under the theory of respondeat superior . . . an employer may be vicariously liable for the negligent acts of its employee if the employee's actions are within the course and scope of his employment. . . . The employee's acts must be of the same general nature as the conduct authorized or incidental to the conduct authorized to be within the scope of employment.

Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 757 (Tex. 2007). For example,

[i]n Ward v. Wright, 490 S.W.2d 223 (Tex. Civ. App.—Fort Worth 1973, no writ), two company employees, while on their lunch hour and not on employer business, were involved in a collision between their respective automobiles as they both were in the process of leaving the company parking lot. The Fort Worth Court of Appeals held that because it was "obvious that the parties' common employer would not, under the Respondeat superior doctrine, have been responsible for the negligence of either of the parties to the automobile collision[,]" the defendant driver [co-employee] was not immune from liability under the exclusive remedy provision [of the TWCA] (Article 8306, Section 3) and was not therefore entitled to a summary judgment.

Long, 871 S.W.2d at 223-24.

Here, Gonzalez sued Arnold under a premises liability theory claiming that "[b]ecause of the negligent manner in which the warehouse [that Arnold owned and/or occupied] had been set up, designed, and operated, there was no readily available wayfor him to avoid or minimize the serious injuries that ensued after he did become entangled [in the conveyor belt]."¹ Gonzalez further claimed the following:

After acquiring the subject property, [Arnold] had negligently set up a network of machines, motors, electrical circuitry, and fixtures which he knew would be utilized by various individuals, including employees of various businesses. Although he had no expertise, Arnold designed the premises in a way that failed to properly account for the safety of his invitees and licensees, and which created [foreseeable] risks to individuals he knew would likely be on the property.

At trial, the issue of whether Arnold designed the warehouse's layout as part of his duties as AW's employee was contested by the parties.² Arnold insisted that when he set up the warehouse and installed the conveyers, he was acting in furtherance of AW's business and that his acts fell within the scope of his work duties for AW. However, Gonzalez disputed Arnold's assertions and presented evidence to the jury that impeached Arnold's credibility, such as evidence that Arnold had incorrectly stated in a lease agreement with L&M Companies and in a petition filed in a separate lawsuit by Arnold and AW that AW owned the premises. AW's status as a lessee of the warehouse was also contested by the parties. Arnold consistently claimed that he had leased the warehouse where Gonzalez had been injured to AW and that AW had control over the premises and was responsible for the premises' condition. However, on direct examination by...