Rodriguez v. Martin Landscape Management, Inc., 01-94-00292-CV
| Decision Date | 25 August 1994 |
| Docket Number | No. 01-94-00292-CV,01-94-00292-CV |
| Citation | 882 S.W.2d 602 |
| Parties | Lucio RODRIGUEZ, Appellant, v. MARTIN LANDSCAPE MANAGEMENT INC. and Tommy Fleeman, et al., Appellees. (1st Dist.) |
| Court | Texas Court of Appeals |
Bernard Bolanos, Houston, for appellant.
Charles Stanton Perry, Houston, for appellees.
Before ANDELL, DUGGAN and HEDGES, JJ.
This is an appeal from a take-nothing summary judgment granted in favor of Martin Landscape Management, Inc. (MLM) and Tommy Fleeman, appellees, and against Lucio Rodriguez, appellant, based on MLM's statutory immunity under the Texas Workers Compensation Act. 1 In a sole point of error, Rodriguez contends there were unresolved fact issues about his employment status concerning (1) whether MLM was a worker's compensation subscriber at the time of the accident, and (2) whether he had received notice that MLM was a worker's compensation subscriber. We affirm.
Rodriguez worked for Staftex, Inc., an employment services company, and was assigned to a job with MLM. While on that job, he was injured in a vehicle accident on a Houston freeway on June 4, 1991. Rodriguez was riding in the bed of a pick-up truck pulling a trailer and driven by coworker Fleeman. 2 Rodriguez alleged that Fleeman lost control of the vehicle and that the truck and trailer hit the guard rail twice, injuring Rodriguez's lower back. 3 Rodriguez received workers compensation benefits from Staftex.
Rodriguez later filed this common-law negligence claim against both MLM and Fleeman. In their motion for summary judgment, MLM and Fleeman asserted that the claim was barred by the "borrowed servant" doctrine. MLM and Fleeman contended that Rodriguez was MLM's borrowed servant under the contract with Staftex, and that the compensation benefits Rodriguez had already received discharged MLM from liability to Rodriguez. Therefore, MLM and Fleeman concluded that they were entitled to statutory immunity under the Texas Worker's Compensation Act. See, e.g., Sparger v. Worley Hosp., Inc., 547 S.W.2d 582, 583 (Tex.1977) ().
In his response, Rodriguez attached a counter-affidavit to controvert MLM's proof, in which he asserted the following:
My initial contract was with Stafftex [sic], Inc. In turn, Stafftex [sic], Inc. contracted with MARTIN LANDSCAPE MANAGEMENT, INC.
....
I began to receive workers compensation benefits through Stafftex [sic] [,] Inc.'s carrier, Houston General Insurance Company. My medical bills were paid by Stafftex [sic], Inc. through their carrier, Houston General Insurance Company.
....
I never received benefits from MARTIN LANDSCAPE MANAGEMENT, INC. via a policy of Texas Workers Compensation insurance purchased by MARTIN LANDSCAPE MANAGEMENT, INC.. I never received notice from MARTIN LANDSCAPE MANAGEMENT INC. that I was covered by any Workers Compensation insurance policy. I never received written notice from MARTIN LANDSCAPE MANAGEMENT, INC., nor was notice posted at the job site, that I was covered by any Workers Compensation insurance policy of MARTIN LANDSCAPE MANAGEMENT, INC.
Rodriguez contends that his controverting affidavit raised material fact issues about whether he worked for MLM or Staftex and whether his workers compensation benefits were from MLM or from Staftex. He also complains that, if MLM was in fact a workers compensation subscriber, he received no notice to that effect.
Summary judgment is proper only when the movant shows that there is no genuine issue of material fact and has proven its entitlement to judgment as a matter of law. Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985); TEX.R.CIV.P. 166a(c). By moving for summary judgment on the basis of the borrowed servant doctrine, MLM assumed the burden of showing that, as a matter of law, Rodriguez was a borrowed servant and that the doctrine applied to bar this claim.
The borrowed servant doctrine applies in situations where an employee of one employer, the general employer, works temporarily for another employer, the special employer. The doctrine makes the special employer the "employer" during the temporary term of employment.
The contract between Staftex and MLM expressly granted to MLM the right to control Rodriguez, and thereby established that the borrowed servant doctrine applied to Rodriguez as a matter of law. Producers Chem. Co. v. McKay, 366 S.W.2d 220, 226 (Tex.1963); Bucyrus-Erie Co. v. Fogle Equip. Corp., 712 S.W.2d 202, 204 (Tex.App.--Houston [14th Dist.] 1986, writ ref'd n.r.e.). It is uncontroverted that Rodriguez was a Staftex employee assigned to MLM.
A comparable situation arose in Marshall v. Toys-R-Us Nytex, Inc., 825 S.W.2d 193, 197 (Tex.App.--Houston [14th Dist.] 1992, writ denied), where Marshall was an employee of a temporary employment agency, Labor Systems, Inc. Id. at 194. Labor Systems assigned Marshall to a temporary job with Toys-R-Us, and she was injured while working in the Toys-R-Us warehouse. Labor Systems, the temporary agency that had placed her, filed a workers compensation claim on Marshall's behalf, and Marshall proceeded with a common-law action against Toys-R-Us. Id. The trial court granted summary judgment for Toys-R-Us on its claim of statutory immunity under the Workers Compensation Act, and Marshall appealed. Id. at 195.
Marshall challenged the summary judgment on the following grounds: (1) there was a fact issue about whether she was an employee of Toys-R-Us or of Labor Systems at the time of the accident; (2) Toys-R-Us failed to prove that it was a workers compensation subscriber; and (3) she had no notice that Toys-R-Us was a workers compensation subscriber. 4 Id. Marshall failed to controvert the summary judgment evidence showing that she received her on-site instructions exclusively from Toys-R-Us, and that Labor Systems in no way controlled or directed her performance. The court concluded that Toys-R-Us had the right of control over Marshall at the time of the accident, and that the borrowed servant doctrine applied. Id. at 195-197.
Finally, the Marshall court held that when Labor Systems gave the statutorily-required notice of the claim to the Industrial Accident Board, this was constructive notice to Marshall that Toys-R-Us was a worker's compensation subscriber. The court overruled all of Marshall's contentions and affirmed the summary judgment.
MLM was an "Employer" for purposes of the Workers Compensation Act
Rodriguez contends that MLM did not prove that it was an "employer" under the Worker's Compensation Act as it read at the time of the injury. He concedes, however, that he had received worker's compensation benefits through Staftex. Martin's affidavit claims that MLM was a worker's compensation subscriber at the time of Rodriguez's accident. The contract provides that MLM will pay fees to Staftex to cover worker's compensation premiums for assigned employees, such as Rodriguez. The relevant provision states:
Service Fee. The Service Fee charged to SUBSCRIBER and payable at the end of each pay period will be equal to gross employee earnings multiplied by the service fee percentage shown on Exhibit A, plus charges for worker's compensation insurance and employee benefit programs.
(Emphasis added.) 5
The "Exhibit A" to which this provision refers is the fee schedule, showing that MLM paid Staftex "actual" costs for worker's compensation insurance premiums. This was attached to the contract and included in the summary judgment evidence. This summary judgment evidence shows that MLM was a worker's compensation subscriber at the time of Rodriguez's accident. As such, it is protected by statute from common-law liability. Sparger, 547 S.W.2d at 583.
Rodriguez points to a change in the Workers Compensation Act, deleting the term "subscriber" from the newer version, and expanding the definition of the term "employer." The earlier version read:
"Employer" shall mean any person, firm, partnership, association of persons or corporations or their legal representatives that makes contracts of hire.
....
"Association" shall mean [an] ... insurance company authorized under this Act to insure the payment of compensation to injured employees or to the beneficiaries of deceased employees.
"Subscriber " shall mean any employer who has become a member of the association by paying the required premium....
TEX.REV.CIV.STAT.ANN. art. 8309 (Vernon 1967), (emphasis added). 6
At the time Rodriguez's injury occurred, the corresponding section of the Act read:
(19) "Employer " means, unless otherwise specified, a person that makes a contract of hire, that employs one or more employees, and that has workers' compensation insurance coverage. The term includes a governmental entity that self-insures, either individually or collectively.
....
(48) "Workers' compensation insurance coverage" means...
To continue reading
Request your trial
-
Bradley v. Phillips Chemical Co.
...employs one or more employees, and has workers' compensation insurance coverage." TEX. LAB.CODE § 401.011(18). Rodriguez v. Martin Landscape Mgmt., Inc., 882 S.W.2d 602, 603 (Tex.App.-Houston [14th Dist.] 1994, no writ) (stating that the distinction between "subscriber" and "employer" is "a......
-
Wingfoot Enterprises v. Alvarado
...work and employee was injured while operating equipment contrary to the general employer's instruction). 56. Rodriguez v. Martin Landscape Mgmt. Inc., 882 S.W.2d 602, 605-06 (Tex.App.-Houston [1st Dist.] 1994, no writ); Gibson v. Grocers Supply Co., Inc., 866 S.W.2d 757, 760 (Tex. App.-Hous......
-
Lopez v. Am. Baler Co.
...of one employer, the general employer, works temporarily for another employer, the special employer." Rodriguez v. Martin Landscape, 882 S.W.2d 602, 604 (Tex. Ct. App. 1994); seeRivera [v. Sagebrush Sales, Inc.], 118 N.M. at 678-79, 884 P.2d at 834-35. The typical factual scenario in which ......
-
Ortiz v. Furr's Supermarkets
...nominal or general employer loans or supplies an employee to another, who is termed the special employer. See Rodriguez v. Martin Landscape Management, Inc., 882 S.W.2d 602, 604 (Tex. App.--Houston [1st Dist.] 1994, no writ). The issue of "right of control" is pivotal under the borrowed ser......