INA of Texas v. Torres

• Decision Date: 25 April 1991
• Docket Number: No. 01-90-00571-CV,01-90-00571-CV
• Citation: 808 S.W.2d 291
• Parties: INA OF TEXAS, now Cigna Insurance Company of Texas, Appellant, v. Jose Orlando TORRES, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 291

808 S.W.2d 291

INA OF TEXAS, now Cigna Insurance Company of Texas, Appellant, v. Jose Orlando TORRES, Appellee.

No. 01-90-00571-CV.

Court of Appeals of Texas Houston (1st Dist.).

April 25, 1991.

Carla Bennett, Cheryl Barber, Houston, for appellant.

D. Lynn Bradshaw, John B. Wallace, Russell L. Cook, Jr., and Greg Morrison, Houston, for appellee.

Before SAM BASS, DUNN and HUGHES, JJ.

OPINION

SAM BASS, Justice.

On January 31, 1986, Jose Orlando Torres (Torres) was working on a truck owned by Ramirez in the yard of Overland Express Company (Overland). Overland is a transportation trucking company whose drivers all are independent contractors. According to Torres, Mark Lancaster (Lancaster) who, with his wife Debbie, was the owner of Overland, was looking for a truck to use at a new truck stop opened by Overland, and he had asked Torres and Ramirez to get the truck prepared for that purpose. Torres and Ramirez were repairing a compressor on the truck when a spark ignited some gasoline on Ramirez' sleeve. Ramirez panicked and knocked over a can of dirty fuel which spilled on Torres. Torres suffered third degree burns over 40% of his body. INA, the workers' compensation carrier for Overland, denied coverage.

INA appeals from the jury's award of damages in favor of Torres. After finding that Torres was an employee of Overland, the jury awarded him damages in the amount of $119,177.36 plus future medical and hospital expenses, attorney's fees, and expenses. The trial court overruled INA's motions to disregard certain jury findings, for judgment notwithstanding the verdict, for entry of a take-nothing judgment, for a new trial, and entered judgment on the verdict.

INA contends on appeal that the evidence was insufficient to support the jury's finding that Torres was an employee of Overland; that the trial court erred in failing to submit an issue on whether Torres was injured in the course and scope of his employment; that the jury's finding that partial incapacity began on May 5, 1987, was not supported by legally or factually sufficient evidence; that there was no evidence or insufficient evidence to support the jury's finding that Torres had an average daily earning capacity of $29.20 during his partial incapacity; and that the admission of Torres' physician's testimony concerning Torres' need for future surgery was reversible error.

We affirm the trial court's judgment.

INA complains in point of error one that the evidence was factually insufficient to support the jury's finding that Torres was an employee of Overland. A challenge to the factual sufficiency of the evidence requires us to consider and weigh all the evidence presented. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986); Shell Pipeline Corp. v. Coastal States Trading, Inc., 788 S.W.2d 837, 844 (Tex.App.--Houston [1st Dist] 1990, writ denied).

Both parties agree that the supreme test for determining whether one is an employee or an independent contractor is the existence of the right to control the details of that person's work. Newspapers, Inc. v. Love, 380 S.W.2d 582, 590 (Tex.1964). While INA contends that Overland did not exercise control over the details of Torres' work, Torres points out that the issue is not whether Overland did control the details of his work but only whether it had the right to control those details. Id. However, where no contract between the parties establishes the status of the worker or the employer's right to control his work, an employee-employer relationship may be established circumstantially by evidence of actual exercise of control. Anchor Casualty Co. v. Hartsfield, 390 S.W.2d 469, 471 (Tex.1965).

Generally, the courts consider five evidentiary factors in analyzing one party's right to control the details of another's work: (1) the independent nature of the worker's business; (2) the worker's obligation to furnish necessary tools, supplies, and materials to perform the job; (3) the worker's right to control the progress of the work except as to final results; (4) the time for which the worker is employed; and (5) the method of payment, whether by the unit of time or by the job. Pitchfork Land and Cattle Co. v. King, 162 Tex. 331, 346 S.W.2d 598, 603 (1961); Eagle Trucking Co. v. Texas Bitulithic Co., 590 S.W.2d 200, 211 (Tex.Civ.App.--Tyler 1979), aff'd in part and rev'd in part on other grounds, 612 S.W.2d 503 (Tex.1981); William Sommerville & Son, Inc. v. Carter, 571 S.W.2d 953, 956 (Tex.Civ.App.--Tyler 1978) aff'd, 584 S.W.2d 274 (Tex.1979). If, after considering these factors, there is conflicting evidence as to the status of the worker, the issue should be submitted to the jury. Living, Inc. v. Redinger, 667 S.W.2d 846, 856 (Tex.App.--Houston [1st Dist.] 1984), rev'd on other grounds, 689 S.W.2d 415 (Tex.1985); Eagle Trucking, 590 S.W.2d at 212. The jury heard extensive conflicting evidence on the relationship between Torres and Overland.

INA took the position that Torres was an independent contractor who performed tire repair services for Overland but was free to conduct his own business as well. He kept his own hours and worked independently of any restrictions other than "general control" by Overland. According to INA, there were other independent tire repair services that, like Torres, also did tire repair for Overland. INA sought to minimize any distinctions in the relationship Overland had with these other services and the relationship it had with Torres.

Torres owned his own truck and compressor and paid his own expenses. However, Overland supplied all his hand tools, tubes, patches, and tires. INA contended that Torres was not required to be present at the job eight hours a day and was free to work for other customers. However, Torres testified that Lancaster told him to report to Overland's dispatcher at about 7:30 every morning for instructions regarding what needed to be done. For at least 210 days during the year preceeding his injury, Torres arrived at the yard each day at about 7:30 a.m. If he did not arrive on time, someone at Overland would telephone or page him to inquire about his absence. He worked until at least 5:00. Debbie testified that she considered Torres to be "on call" 24 hours a day. If "stragglers" came in after 5:00 and Torres was already gone, "he would have to come back" if there was a flat to be fixed. She also testified that Torres could leave Overland's premises during the day because he had a pager where they could reach him.

Torres testified that he did not work for anyone else during the week when he was on "Overland Express' time" unless directed to do so by Lancaster. He worked on the trucks owned by the independent contractors who drove for Overland and the trucks that were owned by Overland without distinction. The Lancasters stated that Torres also worked many Saturdays and Sundays at Overland, although he occasionally did tire repair for other people on the weekends. While insisting that Torres was free to turn down Overland's work, Debbie also said that, had he done so, she would not have called him back to fix any more flats.

While INA suggested that Torres performed only tire repair services, Torres presented evidence that he did many other jobs for Overland at the direction of its owners and was paid for these services. He testified that frequently he handled containers, operated a fork lift, loaded and unloaded tractor trailers, and stocked and managed Overland's inventory of parts. All parts that he ordered were paid for by Overland. He picked up and delivered parts and packages for Lancaster, sometimes using one of Overland's trucks. No independent tire service repairmen were asked to do these jobs.

INA stressed the fact that Overland did not pay Torres on an hourly basis. Instead, Torres billed Overland per job by invoice. In answers to interrogatories, INA claimed that Overland had paid no money to Torres and that no authorized payment schedule was ever established between them. INA also stated, as support for its conclusion that Torres was not an employee of Overland, that Torres was never hired or paid by Overland, and that on the date of the accident he was working on his personal vehicle. Torres indicated that he filled out invoices because the Lancasters required him to document all the work done on each job for the independent contractor truck drivers. Torres listed on the invoices the prices of the services and parts supplied. Torres thought the prices he charged were set by Overland, but Debbie testified that Overland had nothing to do with setting the prices which were standard in the industry. Overland paid Torres weekly for the jobs he had done and then deducted the amount of the invoice from the truckers' pay. Debbie testified that they did so to protect Torres from being cheated by the independent contractor truckers who used his services. However, she also admitted that Overland followed the same procedure with outside tire repair services in order to offer credit terms to the drivers, not to protect them. Torres pointed out that, also unlike any of the outside tire repairmen, he could request, and would receive, advances on his salary from Debbie. None of the other tire repairmen were given salary advances.

Overland did not provide Torres with certain "employee benefits" or deduct taxes from Torres' pay, and his 1099 form indicated that he was paid "nonemployee compensation." Torres contended that this designation is not determinative of his legal status. See Pan American Ins. Co. v. Stokes, 370 S.W.2d 955 (Tex.Civ.App.--Amarillo 1963, writ dism'd). Lancaster admitted that it was more expensive for Overland to classify a worker as an employee rather than an independent contractor because Overland paid medical insurance, contributed to a profit-sharing plan, provided workers' compensation coverage, and matched FICA deductions for employees. Torres stressed the inference, drawn from this information, that...