Painter v. Amerimex Drilling I, Ltd.

Decision Date03 November 2015
Docket NumberNo. 08–14–00134–CV,08–14–00134–CV
Parties Steven PAINTER, Tonya Wright, Individually and As Representative of the Estate of Earl A. Wright, III, Deceased, Virginia Weaver, Individually and As Next Friend of Albert A. Carillo, A Minor, Tabatha P. Rosello, Individually and As Representative of the Estate of Albert Carillo Deceased, Appellants, v. AMERIMEX DRILLING I, LTD., Appellee.
CourtTexas Court of Appeals

S. Anthony Safi, Mounce, Green, Myers, Safi & Galatzan, El Paso, TX, for Appellee.

David Wayne Lauritzen, Cotton, Bledsoe, Tighe & Dawson, Midland, TX, for Appellants.

Before McClure, C.J., Rodriguez, J., and Chew, C.J. (Senior)

OPINION

ANN CRAWFORD McCLURE, Chief Justice

This appeal asks us to decide if the proof necessary to place an employee within the "course and scope" of employment for the purposes of vicarious liable differs from that under the Texas Worker's Compensation Act. The question arises in the context of an oil field employee, who after his shift had ended at a remote drilling site, was involved in a tragic automobile accident while transporting his crew to company provided housing. Two of his coworkers were killed and another seriously injured. If this were a worker's compensation case, we think it clear that the evidence would raise at least a fact issue as to whether the employee would be in the course and scope of his employment. But in the context of vicarious liability—making the employer liable for the conduct of the employee—we find the standard of proof is higher and was unmet on this record. We accordingly affirm the trial court's summary judgment rendered in favor of the employer.

FACTUAL SUMMARY

On July 28, 2007, Earl Wright, Albert Carillo,1 and Steven Painter were riding in a vehicle being driven by their crew leader, J.C. Burchett. All were employees of Amerimex Drilling I, Ltd. (Amerimex). They had finished their shift on a drilling rig and were in transit to a "bunkhouse" provided by Amerimex which was located some 30 to 40 miles away. Burchett's vehicle struck a car driven by Sarah Pena; Earl Wright and Albert Carillo were killed in the crash, and Steven Painter was seriously injured. Steven Painter, joined with the wrongful death beneficiaries of Earl Wright and Albert Carillo, (collectively Appellants) sued Burchett (the driver); Amerimex (which was hired to drill an oil and gas well); Sandridge Energy, Inc. (the owner of the oil and gas lease); and Sarah Pena (the driver of the other car involved in the accident).

Sandridge had obtained a lease to drill oil and gas wells on the Longfellow Ranch which is located south of Fort Stockton. Sandridge hired Amerimex to do the actual drilling. Amerimex was hired under a "Daywork Drilling Contract" that contemplated the drilling could take as long as ninety days. Sandridge was to pay Amerimex a designated daily rate. In exchange, Amerimex was to provide a drilling rig and a crew each day. In addition to the daily rate that Sandridge was to pay Amerimex, it was obligated under the contract to pay various "bonus" amounts for Amerimex employees. One of those amounts included paying each "driller" a bonus of "$50/day to drive crew out to well location [sic]." A driller is the leader of a crew consisting of four to six workers. Amerimex would invoice Sandridge for the bonus amounts, which when paid, would then be distributed to the workers along with their regular pay. Sandridge needed to pay these bonuses because otherwise there was a risk that Amerimex' crew would be hired away by other drilling companies operating in the area. Sandridge may also have paid the bonus to one driver to reduce the amount of traffic going back and forth from the Longfellow ranch, which had thirty or more rigs operating at one time.

Sandridge did not allow on site housing which effectively required Amerimex' crew to commute to the well site. Burchett's crew included Wright, Carillo, and Painter; Burchett was the "driller" and thus entitled to the driving bonus. Burchett's crew members apparently lived in Big Spring or Abilene, a two and half hour drive away from the drilling rig. Accordingly, Amerimex placed a "bunkhouse" in Fort Stockton which was some 30 miles away. There was no requirement that the crews live in the bunkhouse, or that they had to ride with their driller when going to and from work. But on this job they did.

As it turned out with Burchett's crew, he was the only one with a vehicle at the job. The rest of his crew had carpooled with Burchett from Big Spring and they rode out to the well site each day in Burchett's personal truck and then back again after the shift ended. Once they left the rig site for the bunkhouse, they were free to stop along the way, and no one provided them a route to take, though there is some evidence in the record that U.S. 385 was the only route known to them. On occasion, they would make the trip all the way back to Big Spring, but this was their choice.

Burchett's crew worked from 6 p.m. to 6 a.m. for seven days on, and then they got seven days off. On the morning of July 28, 2007, after finishing their sixth shift, they were driving back to the bunkhouse. For reasons unknown, Burchett ran into the back of Ms. Pena's car while on U.S. 385 just outside of Fort Stockton.

Burchett was also seriously hurt in the accident. He sought worker's compensation benefits, necessarily contending that he was injured in the course and scope of employment at the time of the accident. Amerimex' workers' compensation insurance carrier, Texas Mutual Insurance Company, contested those benefits which culminated in a contested case hearing before Texas Department of Insurance Workers' Compensation Division (TDI). Amerimex itself sought to participate at the hearing claiming that it had standing, and in fact urged that Burchett was in the course and scope of his employment at the time of the accident. The TDI found that Burchett's injury was compensable under the Act because he was paid to transport his crew to and from the worksite and the company bunkhouse. Moreover, delivering a crew to the worksite each day directly furthered the business interests of Amerimex.

None of the Appellants, however, filed claims for workers' compensation benefits. But Amerimex, claiming again to have standing before the TDI, attempted to initiate benefit proceedings on their behalf. In part, Amerimex contended that when an employee driver of a vehicle is in the course and scope of employment, so too would be any employee passengers. The TDI found Amerimex lacked standing to initiate benefit proceedings on Appellants' behalf, and even it if did, the employee passengers did not sustain compensable injuries.

Undeterred by the TDI ruling, Amerimex first moved for summary judgment in this lawsuit by contending that all of the employees were in the course and scope of employment and the exclusive remedy provisions of the Act barred the claims against it.2 Alternatively, it claimed that none of the employees, including Burchett, were in the course and scope of employment and thus it owed no duty to Appellants. That motion was denied. Appellants later filed a Fourth Amended Petition that claimed Amerimex was vicariously liable for Burchett's conduct because he was an employee engaged in activities within his general authority and in furtherance of his employer's business. Appellants contended that Amerimex had the right to control Burchett and is accordingly vicariously liable for his torts.

Amerimex then filed another summary judgment motion claiming that "Amerimex's lack of control over Burchett at the time of the accident" defeats vicarious liability as a matter of law.3 This motion was filed as both an affirmative and no evidence motion under TEX. R. CIV. P.166a(c) and (i). Appellants' response claimed that the right of control was relevant only to the question of whether Burchett was an employee, and not to whether he was acting within the scope of his employment at the time of the accident. Instead, Appellants contended the only pertinent inquiry was whether Burchett was acting in the furtherance of his employer's business. The summary judgment response attached no evidence germane to the vicarious liability claim, but it did incorporate Appellants' responses to the previous motion for summary judgment that Amerimex has filed.4 The trial court granted judgment Amerimex on this ground, and severed the judgment from the remaining claims.

Issues on Appeal

In a single issue on appeal, Appellants contend that there are material fact issues as to whether Burchett was in the course and scope of his employment with Amerimex at the time of the accident such that Amerimex is vicariously liable to Appellants under the doctrine of respondeat superior. We discern two primary threads to Appellants' argument. First, they contend the nature of remote drilling sites presents an exception to the general rule which holds that coming from or going to work is not within the course and scope of employment. They bolster this argument by contending that Burchett was paid to transport the crew, and not merely reimbursed for travel expenses. Second, Appellants contend the car-pooling arrangement was in furtherance of Amerimex's business as it ensured that a complete drilling crew came to the drilling rig each day.

STANDARD OF REVIEW

We review a trial court's decision to grant summary judgment de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex.2010). Rule 166a(i) permits a party to move for a no-evidence summary judgment "without presenting summary judgment evidence," but it requires the moving party to "state the elements as to which there is no evidence." TEX. R. CIV. P.166a(i) ; Wade Oil & Gas, Inc. v. Telesis Operating Company, Inc., 417 S.W.3d 531, 540 (Tex.App.—El Paso 2013, no pet.) ; Aguilar v. Morales, 162 S.W.3d 825, 834 (Tex.App.—El Paso 2005, pet. denied). The burden then shifts to the non-movant to produce summary judgment evidence raising a genuine...

To continue reading

Request your trial
3 cases
  • In re Rudolph Auto., LLC
    • United States
    • Texas Court of Appeals
    • December 30, 2020
    ...accident, then Rudolph may lose its ability to use certain common-law defenses.Rudolph cited to Painter v. Amerimex Drilling I, Ltd. , 511 S.W.3d 700, 701 (Tex. App.—El Paso 2015) ( Painter I ), rev'd , 561 S.W.3d 125 (Tex. 2018) ( Painter II ), a vicarious liability case from this Court wh......
  • Painter v. Amerimex Drilling I, Ltd.
    • United States
    • Texas Supreme Court
    • April 13, 2018
    ...of a fact issue as to whether Burchett was in the course and scope of his employment for workers'-compensation purposes. 511 S.W.3d 700, 707 (Tex. App.—El Paso 2015). However, the court concluded that, for vicarious liability to attach, "Amerimex must undertake some control as with the rout......
  • Garza v. RDL Energy Servs.
    • United States
    • Texas Court of Appeals
    • December 20, 2022
    ...not in the course and scope of his employment when he transported the crew to the bunk house. See Painter v. Amerimex Drilling I, Ltd., 511 S.W.3d 700, 709-712 (Tex.App.--El Paso 2015), rev'd, 561 S.W.3d 125 (Tex. 2018). We cited and attempted to reconcile the several cases that similarly l......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT