Raymond L. Williams v. McGuire Industries, Inc.

11th Court of Appeals Eastland, Texas Memorandum Opinion Raymond L. Williams Appellant Vs. No. 11-03-00392-CV -- Appeal from Ector County McGuire Industries, Inc. Appellee Raymond L. Williams filed this personal injury action, based in negligence, against McGuire Industries, Inc. McGuire filed a motion for summary judgment contending that Williams was its borrowed employee at the time of the accident and, therefore, that Williams’s claims against it were barred by the exclusive remedy provision in the Texas Workers’ Compensation Act (TWCA). See TEX. LAB. CODE ANN. § 408.001 (1996). The trial court granted McGuire’s motion. In his sole appellate issue, Williams argues that the trial court erred in granting McGuire’s motion for summary judgment. We affirm. Background Facts Williams was employed by TCO Field Service as a roustabout pusher. On March 20, 2001, Williams and his roustabout crew went to a Texaco lease to do work for McGuire. While they were at the location, McGuire’s foreman, Sikes, told Williams and his crew what to do and directed them in the details of their work. McGuire supplied the pipe and materials that were necessary for the job. The accident in question occurred on March 21, 2002. Williams alleged that he was injured while carrying a piece of pipe and that McGuire’s negligence caused the accident. The issue on appeal is whether McGuire proved as a matter of law that Williams was its borrowed employee at the time of the accident. Standard of Review McGuire moved for a traditional summary judgment on its affirmative defense of borrowed employee. The standards of review for a “traditional” summary judgment under TEX.R.CIV.P. 166a(c) are well established. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991); Nixon v. Mr. Property Management Company, Inc., 690 S.W.2d 546, 548-49 (Tex.1985); City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 676 (Tex.1979). We must consider the summary judgment evidence in the light most favorable to the non-movant, indulging all reasonable inferences in favor of the non-movant, and determine whether the movant proved that there were no genuine issues of material fact and that it was entitled to judgment as a matter of law. Nixon v. Mr. Property Management Company, Inc., supra; City of Houston v. Clear Creek Basin Authority, supra. A defendant is entitled to summary judgment on an affirmative defense if it establishes each element of the defense as a matter of law. American Tobacco Company, Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997); Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997); Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 121 (Tex.1996). Summary Judgment Evidence The summary judgment evidence, including Williams’s deposition testimony, established the following facts: (1) that the accident occurred on March 21, 2001, on a Texaco lease; (2) that Williams was employed by TCO Field Service as a roustabout pusher; (3) that, on March 20, 2001, Williams and his TCO crew started a job on the location for McGuire; (4) that the job was to attach a mud-gas separator to a well head for McGuire; (5) that McGuire’s foreman, Sikes, was Williams’s and the TCO crew’s boss while they were on the location; (6) that McGuire supplied the equipment and materials for the job; (7) that Williams and his crew were on the location to do whatever Sikes told them to do; (8) that Williams understood that Sikes would be directing him and his crew in the details of their work; (9) that Sikes did direct Williams and his crew in the details of their work; (10) that Sikes was on the location the entire time that Williams and his crew were there; (11) that, when Williams hurt his back, he was carrying a section of pipe that Sikes had directed him to carry to the mud-gas separator; (12) that every activity Williams performed on the location was performed under the direct supervision, and at the direction, of Sikes; (13) that Williams did not have a supervisor from TCO Field Service at the location; (14) that Sikes told Williams in detail how to make the various connections of pipe; and (15) that Sikes supervised the picking up and carrying of pipe on the location. McGuire provided summary judgment evidence establishing that it had workers’ compen-sation insurance coverage for its employees at the time of Williams’s accident. Borrowed Employee Issue Section 408.001 is the exclusive remedy provision of the TWCA. Section 408.001(a) of the TWCA provides as follows: Recovery of workers’ compensation benefits is the exclusive remedy of an employee covered by workers’ compensation insurance coverage...against the employer...for...a work-related injury sustained by the employee. An employee may have more than one employer for purposes of the TWCA’s exclusive remedy provision. Wingfoot Enterprises v. Alvarado, 111 S.W.3d 134 (Tex. 2003). If Williams was McGuire’s borrowed employee, then his claims against McGuire are barred by the exclusive remedy provision in the TWCA. A general or regular employee of one employer may become the borrowed employee of another with respect to some activities. St. Joseph Hospital v. Wolff, 94 S.W.3d 513, 537 (Tex.2002)(plurality opinion); Sparger v. Worley Hospital, Inc., 547 S.W.2d 582, 583 (Tex.1977). Whether a general employee of one employer has become the bor-rowed employee of another employer hinges on whether the other employer or its agents have the right to direct and control the employee with respect to the details of the particular work at issue. St. Joseph Hospital v. Wolff, supra. The test is whether the borrowing employer has the right to control the progress, details, and methods of operations of the work at issue. Limestone Products Distribution, Inc. v. McNamara, 71 S.W.3d 308, 312 (Tex.2002); Thompson v. Travelers Indemnity Co. of Rhode Island, 789 S.W.2d 277, 278 (Tex.1990). The borrowing employer must control not merely the end sought to be accomplished but also the means and details of its accomplishment. Limestone Products Distribution, Inc. v. McNamara, supra; Thompson v. Travelers Indemnity Co. of Rhode Island, supra. Several factors are to be considered in determining who has power and control over the employee: the nature of the general project, the nature of the work to be performed by the machinery and employees furnished, the length of the special employment, the type of machinery furnished, the acts representing an exercise of actual control, and the right to substitute another operator of the machinery. Producers Chemical Company v. McKay, 366 S.W.2d 220, 226 (Tex.1963); Faust v. Pumpco, Inc., 57 S.W.3d 620, 623 (Tex.App. - Texarkana 2001, pet’n den’d). An additional factor to be considered is any contract language between the two parties addressing the right to control. Exxon Corporation v. Perez, 842 S.W.2d 629, 630 (Tex.1992). The summary judgment evidence set forth above established that McGuire’s foreman, Sikes, had the right to direct and control, and did direct and control, the details of Williams’s work. Thus, McGuire established as a matter of law that Williams was its borrowed employee. McGuire had workers’ compensation insurance on the date of the accident. Williams’s claims against McGuire in this suit are barred by Section 408.001(a) of the TWCA. The trial court did not err in granting summary judgment to McGuire. Williams’s appellate issue is overruled. This Court’s Ruling The judgment of the trial court is affirmed. TERRY McCALL JUSTICE February 17, 2005 Not designated for publication. See TEX.R.APP.P. 47.2(a). Panel consists of: Arnot, C.J., and Wright, J., and McCall, J.