New Hampshire Ins. Co. v. Rodriguez

• Decision Date: 11 January 2019
• Docket Number: No. 08-15-00173-CV,08-15-00173-CV
• Citation: 569 S.W.3d 275
• Parties: NEW HAMPSHIRE INSURANCE COMPANY, Sunsets West, Inc., and R.M. Personnel, Inc., Appellants, v. Luis Alberto RODRIGUEZ, Appellee.
• Court: Texas Court of Appeals

569 S.W.3d 275

NEW HAMPSHIRE INSURANCE COMPANY, Sunsets West, Inc., and R.M. Personnel, Inc., Appellants,

v.Luis Alberto RODRIGUEZ, Appellee.

No. 08-15-00173-CV

Court of Appeals of Texas, El Paso.

January 11, 2019

David Campbell, Dallas, Hon. Lynn Anne Coyle, San Antonio, Hon. David E. Chamberlain, Austin, for Appellants R. M. Personnel, Inc.

Hon. Loren R. Smith, Houston, for Appellants New Hampshire Insurance Company.

Hon. Jessica Z. Barger, Houston, Lisa Wright, Hon. Daniel H. Hernandez, El Paso, Hon. Marisa Ybarra, Hon. Jeff H. Ray, El Paso, Hon. Michael K. Dean, Fort Worth, for Appellants Sunsets West, Inc.

Hon. John P. Mobbs, Hon. Enrique Moreno, El Paso, for Appellee.

Hon. Mary A. Keeney, Austin, Hon. Jackie M. Kenyon, Hon. Mary Barrow Nichols, Austin, Civil - Amicus Curiae for Texas Mutual Insurance Company.

Before McClure, C.J., Rodriguez, and Hughes, JJ.

OPINION

YVONNE T. RODRIGUEZ, Justice

After suffering severe on-the-job injuries at a construction site, Luis Rodriguez received workers' compensation benefits worth more than $1.8 million from the insurance carrier of the prime contractor construction company that directed his day-to-day work activities. Separately, in a suit he filed against the temporary staffing agency that hired him for the job and a subcontractor he alleged negligently caused his injuries at the worksite, Rodriguez obtained an approximately $6.1 million jury award. The prime contractor’s workers' compensation carrier now seeks reimbursement of its expenses from Rodriguez’s jury award. The temporary staffing agency and the allegedly negligent subcontractor ask us to vacate that jury award entirely.

For the reasons that follow, we will: (1) affirm the judgment with respect to R.M. Personnel; (2) modify the prejudgment interest date with respect to Sunsets West, Inc. (SWI), and affirm the modified judgment with respect to SWI; and (3) reverse the trial court’s judgment with respect to New Hampshire Insurance Company and render judgment that denies jury award reimbursement but lifts the condition requiring New Hampshire Insurance to pay out certain benefits before treating the jury award as an advance against future benefits.

BACKGROUND

Factual History

This case involves a catastrophic worker injury sustained at a construction site located on 211 North Florence Street in El Paso, Texas (the Florence Street Project). General contractor and project architect Perspectiva—whose principals, through a separate limited partnership, owned the property under construction—used temporary employment agency R.M. Personnel, Inc., to hire temporary workers for the Florence Street Project. Rodriguez, through R.M. Personnel, was assigned to the Florence Street Project under the supervision of Perspectiva Superintendent Jorge Acosta. Rodriguez was a general laborer with no specialized training in working from heights or fall hazards. According to R.M. Personnel, for these reasons and per the terms of its agreement with Perspectiva, Rodriguez should not have been assigned to work on the third floor of the Florence Street Project. Acosta disputed R.M. Personnel’s version of events, and maintained at trial that Rodriguez was not subject to any worksite restrictions.

Perspectiva subcontracted out sheet rock work and interior wall construction on the Florence Street Project to Sunsets West, Inc. (SWI). While the Florence Street Project was in progress, but before Rodriguez began as a worker on the project, Perspectiva asked SWI to alter the scope of its work by constructing a 10-foot-by-14-foot wooden deck installed over four cinder-block walls that extended four feet above the existing roof. SWI agreed to perform the work requested. The deck, referred to in the briefs as an "elevator penthouse," was situated above an open elevator shaft that was three stories tall. Per Jorge Acosta’s instructions, SWI left a two-foot-by-four-foot rectangular opening in the deck so that a louvered vent could be installed later. The opening was approximately six feet from the edge. SWI did not mark off or otherwise secure the area around the open hole in the elevator penthouse. It is undisputed that once Perspectiva approved SWI’s construction work on the elevator penthouse on August 30, 2007, SWI returned to its work in the interior of the building.

On September 1, 2007, Acosta placed a sheet of plastic, some sheet rock, and an angle iron over the vent opening in order to keep rain from falling into the main building. The rock covering could not support the weight of a person standing on top of it. On September 17, 2007, Acosta told Rodriguez to help him place felt paper over the vent opening to prevent water seepage. The record is unclear as to whether the temporary covering was still over the open elevator shaft as work began or whether it had been removed.

Only Acosta and Rodriguez were on the roof as the work began. Acosta testified that Rodriguez climbed up scaffolding that SWI had left at the edge of the elevator penthouse, and was standing on the last wrung at the top of the scaffolding. Acosta conceded at trial that he later learned this was an OSHA violation. Acosta did not warn Rodriguez about the roof opening. Thereafter, Rodriguez fell three stories down the elevator shaft onto the cement basement floor fifty feet below. The precise sequence of what happened between Rodriguez being on the scaffold and falling through the elevator shaft opening six feet away is unknown. Acosta was turned away from the accident and did not see how Rodriguez fell, but only saw Rodriguez’s hands in the air before disappearing into the elevator shaft. It is also unclear from the record whether the covering was on top of the vent opening at the time of Rodriguez’s fall.

Rodriguez sustained massive trauma, suffering a severe brain injury, spinal cord injuries, internal bleeding, and multiple fractures of bones in his face, spine, pelvis, ribs, arms, and legs. A witness at trial testified that Rodriguez’s injuries were so severe, a priest was called to the hospital to administer the last rites to Rodriguez. Rodriguez, then twenty-five-years' old, ultimately survived. However, he is incapable of living independently. As of the date of trial, Rodriguez was thirty-three and had assisted living care. He can walk, but only with assistance. Appellant New Hampshire Insurance Company states in its brief that the severity of Rodriguez’s injuries entitle him to lifetime workers' compensation benefits. Rodriguez testified at trial that he had no independent recollection of the accident or of ever even working on the Florence Street Project. His last memory was working at a grocery store prior to the accident.

Procedural History

Subrogation Suit and Contested Workers' Compensation Case Between Insurance Carriers

The procedural history of this case is complex. On December 4, 2007, employment agency R.M. Personnel’s workers' compensation insurance carrier, Liberty Mutual Fire Insurance Company (Liberty Mutual), filed a subrogation suit under Chapter 417 of the Texas Labor Code against Perspectiva, asserting that Perspectiva’s negligence caused Rodriguez’s injury and that Liberty Mutual was fully subrogated to Rodriguez’s rights and bringing suit pursuant to that subrogation (the Liberty Mutual Suit).¹ Liberty Mutual later amended its petition to include SWI as a defendant. The first amended petition naming Perspectiva and SWI as co-defendants states it was served on April 15, 2008, but the district clerk’s stamp indicates it was received and filed on April 22, 2008.

Meanwhile, a dispute arose between Liberty Mutual and Perspectiva’s workers' compensation carrier, New Hampshire Insurance Company, over which carrier should be responsible for paying benefits to Rodriguez. That aspect of the dispute moved into a contested administrative case, styled Luis Rodriguez v. Liberty Mutual Fire Insurance and New Hampshire Insurance Company , before the Texas Department of Insurance Workers' Compensation Division. The Division held a benefit review conference on February 19, 2009, but the parties were unable to reach an agreement at that time. After a contested hearing scheduled for April 8, 2009, was reset, the Division held a final contested hearing on July 28, 2009. The contested issue before the Division was: "Was RM Personnel or Perspectiva the Claimant’s employer for the purposes of the Texas Workers' Compensation Act at the time of the injury ...?" The Division found that because Perspectiva controlled the details of Rodriguez’s work while he was at the job site, Perspectiva and not R.M. Personnel was Rodriguez’s employer under the Act. As such, Perspectiva’s carrier—New Hampshire Insurance Company—was liable for benefits and R.M. Personnel’s carrier—Liberty Mutual—was not liable. The Division ordered New Hampshire Insurance to reimburse Liberty Mutual for the benefits it paid Rodriguez, and to pay Rodriguez’s workers' compensation benefits from that point forward. The record before us does not show that that order was ever appealed.

Rodriguez’s Lawsuit

On September 16, 2009, in a separate lawsuit, Rodriguez sued Perspectiva and SWI (the Rodriguez Suit), contending that both defendants caused his injuries. SWI moved to consolidate the Rodriguez Suit with the Liberty Mutual Suit, which the trial court granted on December 11, 2009. After consolidation, Liberty Mutual non-suited its remaining claims and exited the case. SWI sought to have R.M. Personnel designated as a responsible third party. The trial court granted that request, and Rodriguez timely amended his petition to include R.M. Personnel as a defendant on November 2, 2010. R.M. Personnel was served on March 9, 2011. New Hampshire Insurance then intervened in this consolidated suit on June 9, 2011.

On November 23, 2011, R.M. Personnel moved for summary judgment, arguing that it was immune from suit under the Worker’s Compensation Act’s exclusive remedy provisions because it was Rodriguez’s "employer" for purposes of ...