Wingfoot Enterprises v. Alvarado
| Decision Date | 03 July 2003 |
| Docket Number | No. 01-0825.,01-0825. |
| Parties | WINGFOOT ENTERPRISES d/b/a Tandem Staffing, Petitioner, v. Marleny ALVARADO, Respondent. |
| Court | Texas Supreme Court |
Carolyn Stamper Schultz, Norman E. Snyder, Jr., Tucker Taunton Snyder & Slade, Houston, for Petitioner.
Jorge Luis Gomez, Gomez Law Firm, Houston, for Respondent.
The issue in this case is whether an employee can have more than one employer for purposes of the Workers' Compensation Act and its exclusive remedy provision.1 We conclude that there can be more than one employer, and that the trial court correctly granted summary judgment in favor of Wingfoot Enterprises d/b/a Tandem Staffing ("Tandem"), a temporary staffing provider that employed Marleny Alvarado. Because the court of appeals concluded otherwise, we reverse the court of appeals' judgment2 and render judgment that Alvarado take nothing.
Tandem is in the business of providing temporary general labor to various industrial companies.3 Tandem had an oral agreement to provide temporary workers to Web Assembly, Inc. Under the agreement, Tandem had sole responsibility for all aspects of hiring, screening, and terminating employees sent to Web. Tandem was also responsible for paying the employees' salaries, unemployment taxes, social security taxes, and for withholding federal income taxes. However, there was no express agreement regarding workers' compensation coverage for the temporary employees. There was evidence that Web "assumed" that Tandem's fees were sufficient to cover the cost of workers' compensation insurance.
Tandem gave its employees details about their job assignments at Web and provided basic safety equipment and training. Tandem also had supervisors on-site at Web to check employees in, to get them started working promptly, to issue them proper safety equipment, and to monitor their breaks and lunch hours. Web supervised the specific tasks performed by the temporary employees, but Tandem retained the right to determine which employees would perform a particular task for Web, could substitute a different employee to perform a particular task, and could reassign an employee to another task.
Tandem hired Marleny Alvarado and, shortly thereafter, assigned her to do manual assembly work at Web's manufacturing facility. Web, however, assigned Alvarado to operate a staking or stamping machine. It was against Tandem's policy for its workers to operate industrial machinery, a policy of which Alvarado was aware. Alvarado did not notify Tandem about this job assignment or that the job was unsuitable or unsafe, as she was required to do, but there was evidence that Tandem's on-site supervisor knew Alvarado was operating the machine. About two days after Alvarado began working at Web's facility, the tips of three of her fingers were severed while she was operating the machine.
At the time of Alvarado's injury, Tandem maintained workers' compensation insurance coverage for Alvarado and its other employees. Web also had workers' compensation insurance coverage for its employees. Alvarado applied for and received workers' compensation benefits under Tandem's policy, but she subsequently sued Tandem, claiming that it was negligent and grossly negligent in a number of ways, alleging generally that Tandem failed to properly train and supervise her, warn her of dangers, and provide her with a safe workplace. Alvarado also sued Web.
Tandem moved for summary judgment under both Rule 166a(c) and 166a(i),4 arguing, among other things, that there was no evidence to support Alvarado's claims or, alternatively, that the Texas Workers' Compensation Act's exclusive remedy provision barred Alvarado's claims because Tandem was Alvarado's employer or co-employer at the time she was injured. The day before trial, the trial court granted both of Tandem's motions for summary judgment without stating its reasons. The trial court did not sever Tandem from the case, but proceeded with a jury trial only on Alvarado's claims against Web. Tandem did not participate in the trial. The jury found that Alvarado was Web's "borrowed employee" at the time she was injured. The charge instructed the jury that "[o]ne who would otherwise be in the general employment of one employer is a `borrowed employee' of another employer if such other employer or his agents have the right to direct and control the details of the particular work inquired about." Because Web had workers' compensation coverage, the trial court rendered final judgment in its favor based on the exclusive remedy provision of the Workers' Compensation Act.5 That same judgment also made the prior summary judgments granted in favor of Tandem final, resulting in a take-nothing judgment against Alvarado.
Alvarado appealed the summary judgment in favor of Tandem, but did not appeal the judgment in favor of Web. The court of appeals affirmed the summary judgment on Alvarado's gross negligence claim, but reversed the judgment on Alvarado's negligence claim, holding that there is some evidence to support that claim.6 With regard to Tandem's contention that it is entitled to the protection of the exclusive remedy provision of the Workers' Compensation Act, the court of appeals concluded that an injured worker can have only one employer for workers' compensation purposes and found there is a fact question as to whether Tandem or Web was Alvarado's employer at the time she was injured, precluding summary judgment in Tandem's favor.7 In so holding, the court of appeals applied a common-law "right to control" test and found that there is some evidence that both Tandem and Web had the right to control Alvarado's work when she was injured.8 Because Alvarado did not appeal the adverse jury finding that she was Web's borrowed employee and because Tandem was not a party to the trial of that issue, the court of appeals did not address the jury's finding.
Tandem filed a petition for review in this Court, reasserting both the exclusive remedy provision of the Workers' Compensation Act and, alternatively, the contention that there is no evidence that it was negligent. Alvarado does not seek review of the court of appeals' adverse judgment on her gross negligence claim. Therefore, the only claim before this Court is Alvarado's negligence claim against Tandem.
We granted Tandem's petition to resolve differing views among the courts of appeals as to whether a general employer9 that provides workers' compensation coverage for an employee is precluded from relying on the exclusive remedy provision of the Workers' Compensation Act if the employee was injured while the details of the employee's work were under the control and supervision of another entity.10 Because we conclude that Tandem was entitled to summary judgment based on the exclusive remedy provision, we do not consider Tandem's no evidence points.
The starting point in our analysis is the Texas Workers' Compensation Act.11 The general definitions section of the Act defines an employer:
"Employer" means, unless otherwise specified, a person who makes a contract of hire, employs one or more employees, and has workers' compensation insurance coverage. The term includes a governmental entity that self-insures, either individually or collectively.12
For purposes of the foregoing definition, an employer has "workers' compensation insurance coverage" if the employer has either obtained an approved insurance policy or secured the payment of compensation through self-insurance as provided under the Act.13 In the sections of the Act dealing with coverage election, "employer" is defined as "a person who employs one or more employees."14
The exclusive remedy provision of the Act says, "Recovery of workers' compensation benefits is the exclusive remedy of an employee covered by workers' compensation insurance coverage or a legal beneficiary against the employer or an agent or employee of the employer for the death of or a work-related injury sustained by the employee."15 But if an employer, i.e., "a person who employs one or more employees,"16 elects not to obtain workers' compensation insurance, that employer is subject to common-law negligence claims and may not assert certain defenses, including contributory negligence, assumed risk, or that the injury or death was caused by a fellow employee.17
The Act also defines "employee":
(a) In this subtitle, "employee" means each person in the service of another under a contract of hire, whether express or implied, or oral or written.
(b) The term "employee" includes:
(1) an employee employed in the usual course and scope of the employer's business who is directed by the employer temporarily to perform services outside the usual course and scope of the employer's business;
(2) a person, other than an independent contractor or the employee of an independent contractor, who is engaged in construction, remodeling, or repair work for the employer at the premises of the employer; and
(3) a person who is a trainee under the Texans Work program established under Chapter 308.
(c) The term "employee" does not include:
(1) a master of or a seaman on a vessel engaged in interstate or foreign commerce; or
(2) a person whose employment is not in the usual course and scope of the employer's business.18
The Workers' Compensation Act defines "course and scope of employment" to mean, in pertinent part,
an activity of any kind or character that has to do with and originates in the work, business, trade, or profession of the employer and that is performed by an employee while engaged in or about the furtherance of the affairs or business of the employer. The term includes an activity conducted on the premises of the employer or at other locations....19
Alvarado concedes that sh...
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