Cherry v. Chustz
| Decision Date | 22 July 1986 |
| Docket Number | No. 05-85-01124-CV,05-85-01124-CV |
| Parties | Thomas CHERRY, et al., Appellants, v. Peter CHUSTZ, et al., Appellees. |
| Court | Texas Court of Appeals |
R. Allen Jones, Les Weisbrod, Dallas, for appellants.
Kip A. Petroff, Irving, Eugene W. Brees, II, Dallas, for appellees.
Before AKIN, SCALES and GUILLOT 1, JJ.
Thomas Cherry and his wife, Sharon K. Cherry, ("Cherry") appeal from summary judgments rendered against them in their suit for personal injuries against Peter Chustz and his wife, doing business as Dallas Truck and Refrigeration, (Chustz) and National Seating Company. The trial court granted summary judgment for Chustz because it held that, as Thomas Cherry's employer, he was entitled to the immunities from suit for negligence provided by the Texas Workers' Compensation Law 2 ("the Act"). The court granted summary judgment for National Seating because it held that the statute of limitations barred recovery by Cherry against that defendant. Cherry attacks both judgments in nine points of error asserting that Chustz is not entitled to the benefits of the Act and that the statute of limitations under the Texas Business and Commerce Code 3 ("the Code") did not begin to run as to its cause of action against National Seating until the time of Thomas Cherry's injury. We disagree with all of Cherry's contentions; consequently, we affirm the judgment of the trial court.
Cherry brought this action alleging that he received spinal injuries due to a defective seat in the truck he drove in the course of employment. The truck was owned and maintained by Chustz, and the seat component was manufactured and installed into the truck as an original component by National Seating. At the time Thomas Cherry sustained his alleged injuries, he was operating the truck pursuant to an Independent Contractor Operating Agreement between Chustz and E. L. Farmer & Co. The operating agreement provided that Chustz was to supply trucks and drivers to E. L. Farmer, pay all salaries to the drivers, select their routes, and hire and fire them. E. L. Farmer was to pay workers' compensation premiums on the drivers supplied by Chustz. The summary judgment evidence in the record before us clearly establishes that Chustz was Thomas Cherry's employer at the time of his alleged injury. Furthermore, Cherry has not brought forth any evidence to refute this point or to show that any one other than Chustz was his employer. Thus, Chustz has established as a matter of law that he was Thomas Cherry's employer. It is further uncontradicted that Cherry collected workers' compensation benefits for his alleged injuries.
Nevertheless, Cherry contends that Chustz is not entitled to the immunities of the Act because the premiums were "paid" by E. L. Farmer, pursuant to the terms of the operating agreement, rather than by Thomas Cherry's employer Chustz. Further, Cherry's claims for workmen's compensation benefits were made against E. L. Farmer as his "employer" and paid by E. L. Farmer's insurance carrier. We do not agree that this is sufficient to establish that Chustz did not "pay" the premiums as contemplated by article 8309, section 1 of the Act. That section defines the following terms:
"Employer" shall mean any person ... that makes contracts of hire.
"Employee" shall mean every person in the service of another under any contract of hire, expressed or implied, oral or written....
"Subscriber" shall mean any employer who has become a member of the association by paying the required premium....
(Emphasis added). Article 8306, section 3(a) provides for immunity under the Act as follows:
The employees of a subscriber ... shall have no right of action against their employer ... for damages for personal injuries, and the representatives and beneficiaries of deceased employees shall have no right of action against such subscribing employer ... for damages for injuries resulting in death....
(Emphasis added). We note initially that the statute seems to state that, while a deceased employee's beneficiaries are barred from suing only the "subscribing employer," an injured employee is barred from suing any of his employers if he is also the employee of a subscriber. We doubt that the legislature intended to enact so inexplicable a scheme, but we need not attempt to clarify this provision in this case. Instead, we hold that, in addition to being Thomas Cherry's "employer" under the statute, Chustz has also shown as a matter of law that he was a "subscriber" under the statute. Consequently, regardless of the proper interpretation of the apparently conflicting provisions of article 8306 section 3, Chustz is entitled to the protection from common law liability for negligence afforded by the Act.
In reaching this conclusion, we need not decide whether Chustz and E. L. Farmer were "dual employers" 4 of Thomas Cherry at the time of his injury. If Chustz was both a subscriber and an employer, the theory of dual employment is not necessary to allow Chustz to enjoy the benefits of the Act. In addition, Cherry has presented no summary-judgment evidence in the record before us to show that E. L. Farmer was also an employer of Thomas Cherry, aside from the fact that benefits were paid through E. L. Farmer's carrier. This is not evidence that E. L. Farmer was, in fact, an employer of Thomas Cherry. See Employers Casualty Co. v. American Employers Insurance Co., 397 S.W.2d 292, 296 (Tex.Civ.App.--Amarillo 1965, writ ref'd n.r.e.).
The payment of the workmen's compensation premiums by E. L. Farmer is shown by the undisputed summary-judgment evidence to have been pursuant to the operating agreement wherein E. L. Farmer acknowledges that the drivers are the employees of Chustz but, as part of the consideration under that contract, specifically agrees to pay those premiums. We see no reason why an employer cannot contractually provide for payment of premiums on his employees by a third-party acting on his behalf. See Big Mack Trucking Co. v. Dickerson, 482 S.W.2d 1, 8 (Tex.Civ.App.--Houston [1st Dist.] 1972) (), rev'd, 497 S.W.2d 283 (Tex. 1973) () art. 8306 § 12g. of the Act; Le Jeune v. Gulf States Utilities Co., 410 S.W.2d 44, 48 (Tex.Civ.App.--Beaumont 1966, writ ref'd n.r.e.) (whether premiums paid or in what manner irrelevant so long as compensation policy was in force). See also Simmons v. Atlas Vac Machine Co., 493 F.Supp. 1082 (E.D. Wis. 1980) (); St. Claire v. Minnesota Harbor Service, Inc., 211 F.Supp. 521, 528 (D.C.Minn.1962); Hoffman v. National Machine Co., 113 Mich.App. 66, 317 N.W.2d 289, 292 (1982) (...
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...independent contractor relationship can protect the general from exposure to claims from the contractor’s employees. Cherry v. Chustz , 715 S.W.2d 742, 743 (Tex. App.—Dallas 1986, no writ). If, however, a subscribing employer subcontracts work with the intent to avoid liability under the TW......
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...Properties, Inc. v. Law, Snakard & Gambill, P.C. , 985 S.W.2d 262 (Tex. App.—Fort Worth 1999, n.w.h.), §40:6.D.3.d Cherry v. Chustz , 715 S.W.2d 742 (Tex. App.—Dallas 1986, no writ), §1:6.C.3 Cherry v. Menard, Inc., 101 F. Supp. 2d 1160, 1173 (N.D. Iowa 2000), §4:2.D Chevalier v. Lane’s, In......
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Table of cases
...Properties, Inc. v. Law, Snakard & Gambill, P.C. , 985 S.W.2d 262 (Tex. App.—Fort Worth 1999, n.w.h.), §40:6.D.3.d Cherry v. Chustz , 715 S.W.2d 742 (Tex. App.—Dallas 1986, no writ), §1:6.C.3 Cherry v. Menard, Inc., 101 F. Supp. 2d 1160, 1173 (N.D. Iowa 2000), §4:2.D Chevalier v. Lane’s, In......
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