Daniel E. Arnold v. Gerardo Gonzalez

FILED 15-0729 11/10/2015 2:13:55 PM tex-7766971 SUPREME COURT OF TEXAS BLAKE A. HAWTHORNE, CLERK

No. 15-0729 IN THE SUPREME COURT OF TEXAS

DANIEL E. ARNOLD,

Petitioner

v.

GERARDO GONZALEZ,

Respondent

Appeal from the Thirteenth Court of Appeals, No. 13-13-00440, and the 398th District Court of Hidalgo County, Texas, Cause No. C-1442-11-I

PETITION FOR REVIEW

Wade C. Crosnoe Robert E. Valdez State Bar No. 00783903 State Bar No. 20428100 THOMPSON, COE, COUSINS & IRONS, L.L.P. Jose “JJ” Treviño, Jr. 701 Brazos, Suite 1500 State Bar No. 24051446 Austin, Texas 78701 VALDEZ, JACKSON & TREVIÑO, P.C. Telephone: (512) 703-5078 1826 North Loop 1604 W, Suite 275 Facsimile: (512) 708-8777 San Antonio, Texas 78248 E-mail: wcrosnoe@thompsoncoe.com Telephone: (210) 598-8686 Facsimile: (210) 598-8797

Counsel for Petitioner Daniel E. Arnold

IDENTITY OF PARTIES AND COUNSEL

1. Petitioner/Appellant/Defendant Daniel E. Arnold

Trial and Appellate Counsel:

Robert E. Valdez Jose “JJ” Treviño, Jr. VALDEZ, JACKSON & TREVIÑO, P.C. 1 1826 North Loop 1604 W, Suite 275 San Antonio, Texas 78248 Telephone: (210) 598-8686 Facsimile: (210) 598-8797 E-mail: revaldez@vjtlawfirm.com E-mail: jtrevino@vjtlawfirm.com

Appellate Counsel:

Wade C. Crosnoe THOMPSON, COE, COUSINS & IRONS, L.L.P. 701 Brazos, Suite 1500 Austin, Texas 78701 Telephone: (512) 703-5078 Facsimile: (512) 708-8777 E-mail: wcrosnoe@thompsoncoe.com

1 Mr. Valdez and Mr. Treviño joined their current law firm at the conclusion of the trial court proceedings. They were formerly with the law firm of Ray, Valdez, McChristian & Jeans, P.C.

i 2. Respondent/Appellee/Plaintiff Gerardo Gonzalez

Trial and Appellate Counsel:

John G. Escamilla ESCAMILLA LAW FIRM 1416 Dove Avenue McAllen, Texas 78504 Telephone: (956) 618-4999 Facsimile: (956) 618-4997 E-mail: john@escamillalawfirm.com

Arturo Martinez LAW OFFICES OF ARTURO MARTINEZ 414 S. Cage Boulevard Pharr, Texas 78577-5443 Telephone: (956) 781-6203 Facsimile: (956) 781-6204 E-mail: art@amtzlaw.com

Appellate counsel:

Brandy Wingate Voss SMITH LAW GROUP, P.C. 820 E. Hackberry Avenue McAllen, Texas 78501 Telephone: (956) 683-6330 Facsimile: (956) 225-0406 E-mail: brandy@appealsplus.com

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TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL .......................................................................... i TABLE OF CONTENTS ................................................................................................ iii INDEX OF AUTHORITIES...............................................................................................v STATEMENT OF THE CASE ....................................................................................... viii STATEMENT OF JURISDICTION ................................................................................... ix ISSUES PRESENTED FOR REVIEW .................................................................................x INTRODUCTION ............................................................................................................1 STATEMENT OF FACTS.................................................................................................2 I. The Ownership of the Accident Site and Equipment ...................................2 II. Gonzalez Is Injured While Working for A-W ..............................................2 III. Gonzalez Sues Arnold and Prevails in the Lower Courts.............................3 SUMMARY OF THE ARGUMENT ....................................................................................5 ARGUMENT .................................................................................................................6 I. The Act’s Exclusive-Remedy Provision Bars Gonzalez’s Claim.................6

A. The Governing Statute ...........................................................................6

B. The Court of Appeals’ Erroneous Waiver Holding ..............................7

C. The Dual-capacity Doctrine ................................................................12

II. The Trial Court Abused Its Discretion by Refusing to Submit Arnold’s Requested Jury Question on the Right of Control .......................15

PRAYER .....................................................................................................................19 CERTIFICATE OF COMPLIANCE ..................................................................................20 CERTIFICATE OF SERVICE ..........................................................................................21

iii

APPENDIX

Final Judgment ................................................................................................ Tab 1 Charge of the Court ......................................................................................... Tab 2 Court of Appeals’ Opinion and Judgment....................................................... Tab 3 Texas Labor Code § 408.001 .......................................................................... Tab 4 Defendant’s Requested Jury Question on Right of Control ............................ Tab 5

iv

INDEX OF AUTHORITIES

Cases

Arnold v. Gonzalez, No. 13-13-00440-CV, 2015 WL 5109757 (Tex. App.—Corpus Christi Aug. 28, 2015, pet. filed)... viii, 7, 10, 11, 12, 17

Austin v. Kroger Tex., L.P., 465 S.W.3d 193 (Tex. 2015) .........................................................................18

Braudrick v. Wal-Mart Stores, Inc., 250 S.W.3d 471 (Tex. App.—El Paso 2008, no pet.) ...................................17

Brown v. Bank of Galveston, N.A., 963 S.W.2d 511 (Tex. 1998) .........................................................................10

Budd v. Punyanitya, 69 Va. Cir. 148, 2005 WL 4827403 (Va. Cir. Ct. Oct. 14, 2005) .................14 Burkett v. Welborn, 42 S.W.3d 282 (Tex. App.—Texarkana 2001, no pet.) ......................... 11, 14 Butcher v. Scott, 906 S.W.2d 14 (Tex. 1995) ...........................................................................18 City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) .........................................................................11 Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523 (Tex. 1997) .........................................................................19

Cohn v. Spinks Indus., Inc., 602 S.W.2d 102 (Tex. Civ. App.—Dallas 1980, writ ref’d n.r.e.) ................13

Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851 (Tex. 2009) .........................................................................15

Darensburg v. Tobey, 887 S.W.2d 84 (Tex. App.—Dallas 1994, writ denied) ................................11 Davis v. Sinclair Ref. Co., 704 S.W.2d 413 (Tex. App.—Houston [14th Dist.] 1985, writ ref’d n.r.e.) ..............................................................................................................13

v

Duncan, Wyatt & Co. v. Taylor, 63 Tex. 645 (1885) ........................................................................................12

Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433 (Tex. 2009) .........................................................................15

Exxon Corp. v. Tidwell, 867 S.W.2d 19 (Tex. 1993) ...........................................................................18

Gore v. Amoco Prod. Co., 616 S.W.2d 289 (Tex. Civ. App.—Houston [1st Dist.] 1981, no writ) ........13

Holt v. Preload Tech., Inc., 774 S.W.2d 806 (Tex. App.—El Paso 1989, no writ)...................................13

Iliff v. Iliff, 339 S.W.3d 74 (Tex. 2011) ...........................................................................12 Johnson Cnty. Sheriff’s Posse, Inc. v. Endsley, 926 S.W.2d 284 (Tex. 1996) .........................................................................18 Long v. Turner, 871 S.W.2d 220 (Tex. App.—El Paso 1993, writ denied) ............................12 McKelvy v. Barber, 381 S.W.2d 59 (Tex. 1964) ...........................................................................11 Payne v. Galen Hosp. Corp., 28 S.W.3d 15 (Tex. 2000) ...................................................................... 13, 14 Port Elevator-Brownsville, L.L.C. v. Casados, 358 S.W.3d 238 (Tex. 2012) ...........................................................................7

Ramirez v. Pecan Deluxe Candy Co., 839 S.W.2d 101 (Tex. App.—Dallas 1992, writ denied) ..............................13 Rivers v. Otis Elevator, 996 N.E.2d 1039 (Ohio Ct. App. 2013) ........................................................14 Rodriguez v. Bd. of Dir. of Auraria Higher Educ. Ctr., 917 P.2d 358 (Col. App. 1996)......................................................................14

vi

State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235 (Tex. 1992) .........................................................................19

Suburban Hosp., Inc. v. Kirson, 763 A.2d 185 (Md. 2000) ..............................................................................14

T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218 (Tex. 1992) ...........................................................................9

Tex. Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504 (Tex. 1995) .........................................................................15

Unigard Sec. Ins. Co. v. Schaefer, 572 S.W.2d 303 (Tex. 1978) ...........................................................................7

W. Steel Co. v. Altenburg, 206 S.W.3d 121 (Tex. 2006) .......................................................................1, 8

Statutes Tex. Gov’t Code § 22.001(a)(2), (3), & (6) ............................................................. ix

Tex. Lab. Code § 408.001(a) ...............................................................................6, 11 Tex. Lab. Code § 408.001(b) .....................................................................................7

Other Authorities

A. Larson, The Law of Workmen’s Compensation, Vol. 2A, § 72.81(c) (1988) ............................................................................14

Rules Tex. R. Civ. P. 277 ...................................................................................................15

Tex. R. Civ. P. 278 ...................................................................................................15 Tex. R. Civ. P. 279 ...................................................................................................10

vii

STATEMENT OF THE CASE

Nature of the Case Premises-liability lawsuit against the president/owner of plaintiff’s employer to recover for a workplace injury (CR 2 43-53, 66-67).

Trial Court 398th Judicial District Court of Hidalgo County, Texas, the Honorable Aida Salinas Flores, Presiding

Trial Court’s After the trial court denied Defendant Daniel Arnold’s Disposition Motion for Summary Judgment based on the exclusive- remedy provision of the Texas Workers’ Compensation Act, the case proceeded to trial (CR.54-62, 120). Based on the jury’s findings on liability and damages, the trial court signed a Final Judgment awarding Plaintiff Gerardo Gonzalez $1,976,161.93 in actual damages, prejudgment interest, and costs (CR.124-34, 168-72; Apx. 1, 2).

Parties in Court of Appellant Daniel Arnold; Appellee Gerardo Gonzalez Appeals

Court of Appeals Thirteenth Court of Appeals at Corpus Christi/Edinburg

Court of Appeals’ In a memorandum opinion authored by Chief Justice Disposition Valdez and joined by Justices Garza and Perkes, the court of appeals affirmed. See Arnold v. Gonzalez, No. 13-13- 00440-CV, 2015 WL 5109757 (Tex. App.—Corpus Christi Aug. 28, 2015, pet. filed) (Apx. 3). Neither party filed a motion for rehearing or motion for en banc reconsideration.

2 “CR” refers to the Clerk’s Record. Other abbreviations in this Petition for Review include “RR” (Reporter’s Record), “Apx.” (Appendix to this Petition), “PEX” (Plaintiff’s Exhibit), “DEX” (Defendant’s Exhibit), and “Ct. Ex.” (Court Exhibit). Although the deposition transcript cited herein is labeled as a court exhibit, a video of designated parts of the deposition was played at trial with the parties agreeing that the transcript and designation would be included in the record in lieu of the court reporter transcribing the video testimony (11.RR.100-01). Cites to the Reporter’s Record are in the following format: [volume number].RR.[page number].

viii

STATEMENT OF JURISDICTION

This Court has jurisdiction because (1) the court of appeals held differently from prior decisions of other courts of appeals and this Court on questions of law material to a decision of the case; (2) the case involves the construction of statutes necessary to a determination of the case; and (3) the court of appeals committed errors of such importance to the state’s jurisprudence that they require correction. See Tex. Gov’t Code § 22.001(a)(2), (3), and (6).

ix

ISSUES PRESENTED FOR REVIEW

1. Can an employee who is injured in a workplace accident, and who recovers workers’ compensation benefits from his employer’s carrier, circumvent the exclusive-remedy provision of the Texas Workers’ Compensation Act by suing the employer’s president/owner in his alleged capacity as the premises owner rather than as a co-employee? In other words, should this Court adopt the “dual capacity” doctrine that has been overwhelmingly rejected by courts in Texas and across the country?

2. Does a court of appeals err by holding that a co-employee/agent waived his exclusive-remedy defense by failing to obtain a finding that he was acting in the course and scope of his employment/agency when: (a) the plaintiff never raised that argument in either the trial court or court of appeals; (b) the issue was undisputed and the evidence conclusively established that fact; and (c) the exclusive-remedy provision does not, by its express terms, require such a finding?

3. Can a trial court properly refuse to submit the defendant’s proposed right-of-control question in a premises-liability case on the basis that control is only relevant when there is evidence of an independent contractor’s involvement? Isn’t right of control always at issue in premises-liability cases?

Unbriefed Issue

4. Can a defendant be jointly and severally liable under the proportionate-liability statute for the portion of the plaintiff’s damages that the jury finds were caused by the plaintiff’s employer, even though the plaintiff’s recovery from the employer is barred by the Act’s exclusive-remedy provision?

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INTRODUCTION

This appeal arises from a (so far) successful attempt to circumvent the exclusive-remedy provision of the Texas Workers’ Compensation Act (the Act). After suffering a workplace injury and collecting workers’ compensation benefits from his employer, Gerardo Gonzalez sued Danny Arnold—the president and owner of Gonzalez’s employer—to recover for the same injury. Gonzalez argued that his claim was not barred by the Act because he was suing Arnold solely in his capacity as the premises owner. Arnold responded that Texas courts have overwhelmingly rejected this “dual capacity” theory of liability.

Uneager to confront that issue, the court of appeals held that Arnold waived his exclusive-remedy defense by failing to obtain a jury finding on whether he was acting in the course and scope of his employment. The court so held even though (1) Gonzalez never raised that waiver theory on appeal, (2) the issue was undisputed, (3) the evidence conclusively established course and scope, and (4) the exclusive-remedy provision does not, in any event, require such a finding. This waiver holding conflicts with Western Steel Co. v. Altenburg, where this Court reversed the same court for using similar logic to affirm a judgment against a subscribing employer. Because the court of appeals erred in avoiding the dual-capacity doctrine issue, the important question of whether that doctrine can open a gaping hole in the Act’s exclusive-remedy provision is squarely before this Court.

STATEMENT OF FACTS

I. The Ownership of the Accident Site and Equipment

This lawsuit arises from a workplace accident at a warehouse operated by A-W in Weslaco, Texas (7.RR.6). The warehouse processes and packages farm produce for shipping and sale (7.RR.74).

Danny Arnold is employed as the President of A-W and owns the company with his wife (7.RR.23-24, 48, 75, 90; 8.RR.13; 13.RR.36; PEX 1). Arnold individually owns the warehouse but leases it to A-W in exchange for annual rent payments of $84,000 (7.RR.6-10, 20, 24-25). A-W is responsible for maintenance and care of the property under the oral lease (7.RR26, 36-37). A-W also owns the equipment in the warehouse, including the conveyor-belt system used to process produce (7.RR.32; 8.RR.13; 18.RR.68; 19.RR.111). II. Gonzalez Is Injured While Working for A-W

Gonzalez was hired by A-W in 2009 (14.RR.26-28). His job was to perform maintenance on forklifts and to help Jesus Montelongo, another A-W employee who maintained the conveyor-belt system (13.RR.36-37; 14.RR.22-24; 16.RR.66).

On February 1, 2010, Gonzalez was helping Montelongo work on a section of the conveyor belt that was not yet in operation (8.RR.38, 46; 13.RR.40; 16.RR.71-77). Arnold was not in the facility that morning and did not instruct Gonzalez on what to do (8.RR.22; 13.RR.40; 16.RR.70-72). Although a guard *3 would have been added to the conveyor belt once it was operational, the belt had no guard at that time (8.RR.46).

Gonzalez was aware that if he put his hand near a moving part in a conveyor belt, it could get caught and he would be injured (16.RR.89-91; DEX 13-14). Nevertheless, Gonzalez reached for a wrench that he claimed had fallen onto the conveyor belt, without asking Montelongo to stop the moving conveyor first (16.RR.80-86; 17.RR.21-22). Gonzalez’s right hand and arm were pulled into the conveyor-belt rollers and injured (15.RR.12).

Gonzalez was treated for a compression injury to and fractures in his right forearm (11.RR.22). His medical care and indemnity benefits were paid by A-W’s workers’ compensation carrier (6.RR.6-8; CR.66-67). III. Gonzalez Sues Arnold and Prevails in the Lower Courts

After collecting workers’ compensation benefits, Gonzalez sued A-W’s President and owner, Danny Arnold (CR.27-35). Gonzalez asserted premises-liability claims based on Arnold’s alleged failure to maintain the property and equipment that he owned and controlled (CR.47-49).

The trial court denied Arnold’s motion for summary judgment based on the Act’s exclusive-remedy provision (CR.54-81, CR.120). Before trial the parties stipulated that (1) Gonzalez was acting in the course and scope of his employment with A-W when the accident occurred, (2) A-W was a subscriber to the Act at the *4 time, and (3) Gonzalez applied for and received workers’ compensation benefits from A-W’s carrier (6.RR.6-8).

At trial the court denied Arnold’s motion for directed verdict and charge objections based on the Act’s exclusive-remedy provision (17.RR.78-80; 20.RR.17-18). Despite submitting premises-liability instructions to the jury, the court also denied Arnold’s proposed jury question on whether he, individually, exercised or retained control over the manner in which the work was performed (CR.121-25; 20.RR.7-17; Apx. 5).

The jury found that Gonzalez, Arnold, and A-W were negligent and attributed responsibility as follows: 65% to Arnold, 20% to A-W, and 15% to Gonzalez (CR.128-29; Apx. 2). The jury also awarded Gonzalez $2,615,000 in damages (CR.130-31; Apx. 2). After signing a Final Judgment awarding Gonzalez nearly $2 million, the trial court denied Arnold’s Motion for Judgment Notwithstanding the Verdict (J.N.O.V. motion) based on the exclusive-remedy provision, and Motion for New Trial (CR.168-94, 200-01; Apx. 1). The court of appeals affirmed without reaching the merits of Arnold’s exclusive-remedy defense, based on his “failure” to obtain a jury finding that he was acting in the course and scope of his employment (Apx. 3).

SUMMARY OF THE ARGUMENT

This lawsuit is an end run around one of the pillars of the Texas Workers’ Compensation Act. The Act’s exclusive-remedy provision bars an employee from suing a subscribing employer—and also the employer’s agents and employees— for a work-related injury. It is undisputed that Gonzalez was working as an employee of A-W when he was injured, and that Gonzalez received workers’ compensation benefits from A-W’s carrier. Nor is there any dispute that Arnold, as A-W’s president, was an employee or agent of A-W. Under the Act’s plain language, Gonzalez’s claim against Arnold is barred.

The court of appeals dodged this issue by holding that Arnold waived his exclusive-remedy defense because he failed to obtain a jury finding that he was acting in the course and scope of his employment. But Gonzalez never raised that argument in the court of appeals, the issue was undisputed and conclusively established by the evidence, and, in any event, the statute’s unambiguous terms do not require such a finding. The court thus should have addressed the issue the parties briefed, which is whether Arnold lost the protection of the exclusive-remedy provision when he was sued in his allegedly separate capacity as the premises owner. Because the statute contains no “dual capacity” exception and courts in Texas and across the country have overwhelmingly rejected the dual-capacity doctrine, this Court should rule that the doctrine is not the law in Texas.

The Court should also reverse and render judgment against Gonzalez for a separate reason. Under this Court’s precedent, Arnold’s individual right-of control over the premises was an essential element of Gonzalez’s claims. Indeed, Gonzalez pleaded, presented evidence on, and argued the control issue. Yet he then successfully blocked Arnold’s request to submit that issue to the jury. When, as here, an essential element of a claim is omitted from the charge and the party without the burden of proof requests its submission, judgment must be rendered in that party’s favor.

ARGUMENT

I. The Act’s Exclusive-Remedy Provision Bars Gonzalez’s Claim

A. The Governing Statute

The Act’s exclusive-remedy provision states:

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.

Tex. Lab. Code § 408.001(a) (Apx. 4).

For our purposes, there are three crucial points about this statute. First, it states that both the employer and the employer’s employees and agents are protected. Second, it does not require that the employer’s employee or agent be acting within the course and scope of that employment or agency.

Third, the statute contains no exception for when an employer (or the employer’s agent or employee) is allegedly acting in a separate capacity—for instance, as a premises owner. The statute applies to an employer and its agents or employees, without qualification. The only exception in the statute does not apply here. See Tex. Lab. Code § 408.001(b) (allowing recovery of exemplary damages for the death of an employee). Accordingly, a dual-capacity exception cannot be read into the statute. See Port Elevator-Brownsville, L.L.C. v. Casados, 358 S.W.3d 238, 241 (Tex. 2012) (concluding that the exclusive-remedy provision barred a worker’s suit against his employer because the provision’s lone exception did not apply); see also Unigard Sec. Ins. Co. v. Schaefer, 572 S.W.2d 303, 307 (Tex. 1978) (“When specific exclusions or exceptions to a statute are stated by the Legislature, the intent is usually clear that no others shall apply.”)

B. The Court of Appeals’ Erroneous Waiver Holding

Arnold raised the exclusive-remedy defense at every possible stage of the trial-court proceedings: pretrial, trial, and post-trial (CR.54-81, 120, 187-94, 201; 17.RR.78-80; 20.RR.17-18). Despite this, the court of appeals held that Arnold waived the defense by not obtaining a jury finding on whether he was acting in the course and scope of his employment. Arnold v. Gonzalez, No. 13-13-00440-CV, 2015 WL 5109757, at *3-5 (Tex. App.—Corpus Christi Aug. 28, 2015, pet. filed) (Apx. 3). But there is a series of problems with this holding.

The first is that Gonzalez never made this argument in his appellate briefing or even in opposition to Arnold’s J.N.O.V. motion (22.RR.1-22).3 To be sure, Gonzalez raised a separate waiver argument in his appellate brief, asserting that Arnold should have obtained a jury finding that he was an employee or agent of A-W. But the court of appeals did not affirm on that basis, presumably because (1) the evidence conclusively established Arnold’s status as an employee and agent of A-W (7.RR.23-24, 48, 75, 90; 8.RR.13; 13.RR.36; PEX 1 at 6), and (2) Gonzalez had judicially admitted Arnold’s agent status (3.RR.20; CR.91). The court instead affirmed based on an unraised argument, concluding that Arnold should have obtained a finding that he was within the course and scope of his undisputed employment/agency.

This case is thus eerily similar to another exclusive-remedy case where this Court reversed the same court of appeals. See W. Steel Co. v. Altenburg, 206 S.W.3d 121 (Tex. 2006). In Altenburg, the Thirteenth Court affirmed a judgment against a workers’ compensation subscriber after concluding that the exclusive-remedy provision did not apply because there was no evidence of workers’ compensation insurance. Id. at 123. But this Court reversed, noting that the plaintiff had never disputed the existence of workers’ compensation insurance. Id. at 124. The Court also emphasized: “[A]bsent fundamental error, an appellate

3 This citation is to the reporter’s record of the hearing on the motion. Gonzalez did not file a written opposition to the motion.

court should refrain from deciding cases on legal errors not assigned by the parties.” Id. Yet the same court of appeals did the same thing here. In the words of the late Yogi Berra, “it’s déjà vu all over again.”4

The second problem with the waiver holding is that a jury finding is not required when an issue is undisputed. T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 222-23 (Tex. 1992). On the record before trial, Arnold’s counsel proposed the following stipulations on his exclusive-remedy defense: (1) Gonzalez was employed by A-W; (2) he was injured in the course and scope of his employment; (3) A-W was a subscriber; (4) Gonzalez received benefits from A-W’s carrier; (5) Arnold was an A-W employee; and (6) both Arnold and Gonzalez were A-W employees (6.RR.6-8). Gonzalez’s counsel agreed to the stipulations except the last two, explaining that he did not agree Arnold was an employee in all respects (6.RR.6-7). Arnold’s counsel then requested clarification that “the issue of Mr. Arnold being an employee of A-W Company, Inc. is the only disputed fact in that regard?” Gonzalez’s counsel responded: “The last two stipulations” (20.RR.7-8).

Based on these stipulations and Gonzalez’s clarification that the only disputed fact was Arnold’s status as an A-W employee, the separate issue of

4 See http://yogiberramuseum.org/just-for-fun/yogisms. As Yogi also purportedly stated, however, “I really didn’t say everything I said.” See https://en.wikipedia.org/wiki/Yogi_Berra.

whether Arnold was acting in the course and scope of his employment was not disputed. This is consistent with the fact that Gonzalez never argued in the court of appeals—or at any point in the trial-court proceedings—that Arnold was required to prove or obtain a jury finding on the course-and-scope issue. The court of appeals therefore erred in affirming based on the lack of a finding on this undisputed issue.

The third problem with the waiver holding is that no jury finding is required when the evidence conclusively establishes the fact. See Tex. R. Civ. P. 279; Brown v. Bank of Galveston, N.A., 963 S.W.2d 511, 515 (Tex. 1998). Arnold presented undisputed evidence that the conveyor-belt system which injured Gonzalez was owned by A-W, and that Arnold’s actions in setting up and maintaining that system were taken in his capacity as the president of A-W (7.RR.32, 52, 90; 8.RR.13; 10.RR.25-26, 64-65, 70; 18.RR.68; 19.RR.111; PEX 34).

The court of appeals identified no specific conflicting evidence, instead claiming that Arnold’s credibility was at issue because of allegedly contradictory statements on the separate issue of whether he owned the warehouse. See Arnold, 2015 WL 5109757, at *4-5 (Apx. 3). But the undisputed testimony on the course-and-scope issue came from multiple witnesses, including one of Gonzalez’s experts. And the jury’s authority to make credibility determinations cannot be used *11 as a guise to “ignore undisputed testimony that is clear, positive, direct, otherwise credible, free from contradictions and inconsistencies, and could have been readily controverted.” City of Keller v. Wilson, 168 S.W.3d 802, 820 (Tex. 2005).

Finally, the exclusive-remedy provision expressly protects subscribing employers—and their employees and agents—from common-law claims for work-related injuries. Tex. Lab. Code § 408.001(a). Conspicuously absent from the statute is any requirement that the co-employee or agent must have acted in the course and scope.

As the court of appeals noted, some courts have interpreted the statute to protect only a co-employee for whose conduct the employer is liable under the doctrine of respondeat superior—that is, an employee acting within the course and scope of employment and in furtherance of the employer’s interests. Arnold, 2015 WL 5109757, at *2 (citing, e.g., Burkett v. Welborn, 42 S.W.3d 282, 288-89 (Tex. App.—Texarkana 2001, no pet.); Darensburg v. Tobey, 887 S.W.2d 84, 86-87 (Tex. App.—Dallas 1994, writ denied)). But Burkett cited to Darensburg, which in turn cited McKelvy v. Barber, 381 S.W.2d 59, 62 (Tex. 1964). McKelvy addressed a prior version of the exclusive-remedy provision. The distinct issue in McKelvy was whether a physician with his own medical practice was protected by the exclusive-remedy provision as the employer’s agent/employee because the employer’s workers’ compensation carrier paid him to treat the injured employee. *12 Id. at 62-63. The right-of-control analysis in McKelvy should not apply when, as here, it is undisputed that Arnold is the president and an employee of A-W. See Long v. Turner, 871 S.W.2d 220, 224 (Tex. App.—El Paso 1993, writ denied) (distinguishing McKelvy where both the plaintiff and defendant were regular employees of the same employer).

It is well settled that courts “have no right to engraft upon [a] statute any conditions or provisions not placed there by the legislature.” Iliff v. Iliff, 339 S.W.3d 74, 80-81 (Tex. 2011) (quoting Duncan, Wyatt & Co. v. Taylor, 63 Tex. 645, 649 (1885)). The court of appeals erred by imposing a requirement in the exclusive-remedy provision that the defendant employee/agent must be acting within the course and scope.

For each of these reasons, the court erred in holding that Arnold waived his exclusive-remedy defense and, consequently, finding it unnecessary to address the dual-capacity issue. Arnold, 2015 WL 5109757, at *5 n.4 (Apx. 3). That issue is necessary to the disposition of this appeal and should be decided by this Court.

C. The Dual-capacity Doctrine

The dual-capacity doctrine is the theory that a workers’ compensation subscriber can be liable in tort to an employee “if it occupies, in addition to its capacity as an employer, a second capacity that confers on it obligations independent of those imposed on it as an employer.” Payne v. Galen Hosp. Corp., *13 28 S.W.3d 15, 20 (Tex. 2000). The doctrine is not supported by the governing statute’s plain language, which contains no dual-capacity exception. Not only that, courts in and outside Texas have overwhelmingly refused to adopt it.

As this Court observed in Payne, “Texas courts of appeals have uniformly rejected the dual-capacity doctrine.” Id. at 20 n.4. Those courts have done so in a variety of contexts. See Ramirez v. Pecan Deluxe Candy Co., 839 S.W.2d 101, 107-08 (Tex. App.—Dallas 1992, writ denied) (strict-liability claim); Holt v. Preload Tech., Inc., 774 S.W.2d 806, 807–08 (Tex. App.—El Paso 1989, no writ) (professional-liability/negligence claim); Davis v. Sinclair Ref. Co., 704 S.W.2d 413, 415-16 (Tex. App.—Houston [14th Dist.] 1985, writ ref’d n.r.e.) (claim for contractually-assumed liability); Cohn v. Spinks Indus., Inc., 602 S.W.2d 102, 104 (Tex. Civ. App.—Dallas 1980, writ ref’d n.r.e.) (strict-liability claim). One Texas court has even rejected the doctrine in the premises-liability context presented here. See Gore v. Amoco Prod. Co., 616 S.W.2d 289, 290 (Tex. Civ. App.— Houston [1st Dist.] 1981, no writ).

The doctrine has generally fared no better in other states, flourishing only briefly in the late 1970s/early 1980s in two states: California and Ohio. See Holt, 774 S.W.2d at 807-08 (citing A. Larson, The Law of Workmen’s Compensation, *14 Vol. 2A, § 72.81(c) (1988)). As noted in Payne, most other states have rejected the doctrine, and that trend has continued since Payne.5

The Payne Court found it unnecessary to decide whether to follow the uniform Texas law and nationwide majority rule, concluding that the dual-capacity doctrine would not have applied even if the Court were to adopt it. Payne, 28 S.W.3d at 20-21. Perhaps taking the wrong signal from this Court’s restraint, the Texarkana Court of Appeals subsequently held that (1) the president of a subscribing corporation could be liable for an employee’s work-related injury in the president’s separate capacity as the premises owner, and (2) the discredited dual-capacity doctrine supposedly was not implicated because the president was not the employer. See Burkett v. Welborn, 42 S.W.3d 282, 288-89 (Tex. App.— Texarkana 2001, no pet.). Gonzalez relied heavily on Burkett in the lower courts and, like the Burkett court, insisted that his argument did not implicate the dual-capacity doctrine. But the Payne Court rejected a similar argument. Payne, 28 S.W.3d at 20 (“Despite Payne’s protestations to the contrary, her argument raises the dual-capacity doctrine.”).

5 Payne contains a lengthy footnote discussing the majority of other jurisdictions that had rejected the dual-capacity doctrine. 28 S.W.3d at 20 n.4. The authorities cited therein as rejecting the dual-capacity doctrine are still good law. Furthermore, three of the four minority jurisdictions listed in the footnote have either overturned the doctrine since Payne, or limited it before or after Payne. See Suburban Hosp., Inc. v. Kirson, 763 A.2d 185, 202-03 (Md. 2000); Rivers v. Otis Elevator, 996 N.E.2d 1039, 1043-44 (Ohio Ct. App. 2013); Rodriguez v. Bd. of Dir. of Auraria Higher Educ. Ctr., 917 P.2d 358, 360-61 (Col. App. 1996). And at least one jurisdiction not mentioned in Payne has since rejected the dual-capacity doctrine. See Budd v. Punyanitya, 69 Va. Cir. 148, 2005 WL 4827403, at *3 (Va. Cir. Ct. Oct. 14, 2005).

In light of the obvious conflict between Burkett and the Texas cases cited above, this Court should grant review and clarify whether Texas recognizes the dual-capacity doctrine. Clarity on this issue is especially critical given our state’s strong public policy favoring workers’ compensation coverage, see Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 440 (Tex. 2009), and given that the main inducement for employers to obtain such coverage is the protection of the exclusive-remedy provision, see Tex. Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 511, 521 (Tex. 1995). Court-created exceptions to the exclusive-remedy provision will inevitably weaken employers’ incentive to purchase coverage, thereby preventing employees from receiving immediate medical care and compensation for injuries. Surely that is not what the Legislature intended.

II. The Trial Court Abused Its Discretion by Refusing to Submit Arnold’s Requested Jury Question on the Right of Control

A trial court “shall give such instructions and definitions as shall be proper to enable the jury to render a verdict.” Tex. R. Civ. P. 277. “An instruction is proper if it (1) assists the jury, (2) accurately states the law, and (3) finds support in the pleadings and evidence.” Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 855 (Tex. 2009). The same rules apply to jury questions. See Tex. R. Civ. P. 278 (stating that the court shall submit the questions that are in the form required by rule 277 and raised by the pleadings and evidence).

In support of his premises-liability claim, Gonzalez pleaded that Arnold had control or a right of control over both the warehouse and the conveyor-belt system (CR.45-48). The control issue was one of the main disputed issues at trial.

Arnold testified that although he owned the warehouse, he leased the property to A-W and A-W was responsible for its maintenance and care (7.RR.6-10, 20-26, 36-37). He also presented evidence that A-W owned the equipment at the property, including the conveyor-belt system, and that his actions in setting up and maintaining that system were undertaken in his capacity as president of A-W (7.RR.32, 52, 90; 8.RR.13; 10.RR.25-26, 64-65, 70; 18.RR.68; 19.RR.111; PEX 34). Furthermore, the jury heard testimony that Arnold was not at the warehouse facility when the accident occurred (8.RR.22; 13.RR.40; 16.RR.70-72), and that Gonzalez was under the supervision of other A-W employees (7.RR.68-69; 13.RR.39-40; 16.RR.71-77).

For his part, Gonzalez questioned the existence of the oral lease at every turn (7.RR.7-37; Ct. Ex. 1 at 6-7, 24, 32-34, 44). He also presented testimony that Arnold goes to the warehouse regularly and that he, in his role with A-W, authorized employees to move the conveyor belt (7.RR.51-52). Moreover, Gonzalez elicited testimony from Arnold that he designed the conveyor-belt at the warehouse (7.RR.52-58; 8.RR.13).

Despite pleading and presenting evidence on the control issue, Gonzalez inexplicably opposed Arnold’s proposed jury question on right of control (20.RR.7-17). Gonzalez’s counsel persisted in doing so after the trial court observed that “there was a lot of evidence as to who was in control” (20.RR.8). He ultimately persuaded the trial court to refuse the proposed question, despite the court wondering whether Gonzalez should be concerned about reversal on appeal (20.RR.14-17; CR.121-23; Apx. 5). Strangely, Gonzalez’s counsel then argued the control issue during closing argument (20.RR.34-46, 80).

Arnold’s proposed question was supported by the pleadings and evidence and was based on Texas Pattern Jury Charges (TPJC) 66.36, which is the only right-of-control question in the TPJC for common-law, premises-liability claims. But the court of appeals concluded that the question was improper because TPJC 66.3 only applies in cases involving independent contractors. Arnold, 2015 WL 5109757, at *6-7 (Apx. 3) (citing Braudrick v. Wal-Mart Stores, Inc., 250 S.W.3d 471, 476 (Tex. App.—El Paso 2008, no pet.)).

The court of appeals’ legal analysis of this issue is startlingly superficial. The Braudrick case does not say that TPJC 66.3 only applies in cases involving independent contractors, and the court in fact held that the trial court did not err in submitting a question based on TPJC 66.3. Braudrick, 250 S.W.3d at 475-77.

6 Comm. on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges: Malpractice, Premises & Products PJC 66.3 (2014).

And although the comment to TPJC 66.3 indicates that the question is a predicate to the liability question in common-law cases involving independent contractors, it does not say that is the only appropriate use. TPJC 66.3 cmt.

Right of control is an issue in every premises-liability case. See Butcher v. Scott, 906 S.W.2d 14, 15 (Tex. 1995) (“In order to be held liable as an owner or occupier, a party must be in control of the premises.”) It is also specifically at issue when, as here, there is evidence that the owner leased the premises. See Johnson Cnty. Sheriff’s Posse, Inc. v. Endsley, 926 S.W.2d 284, 285 (Tex. 1996); Exxon Corp. v. Tidwell, 867 S.W.2d 19, 21 (Tex. 1993). And “[o]nly an employer that has control over the premises where the employee is injured has a premises-liability duty to the employee . . . .” Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 216 (Tex. 2015). Thus, to the extent the court of appeals suggested that right of control is not at issue unless an independent contractor is involved, that ruling conflicts with this Court’s precedent.

If the court of appeals instead meant that the specific wording of TPJC 66.3 would not apply in other types of premises-liability cases, the court did not explain why that is so or what wording in the question would need to change. Nor did Gonzalez argue at the charge conference that the wording of the right-of-control question would have to be altered (20.RR.7-17). Indeed, Arnold’s proposed *19 question did not mention anything about independent contractors at all (CR.121; Apx. 5). Thus, the trial court erred by refusing to submit the control question.

When, as here, the jury charge omits an essential element of a claim and the party without the burden of proof objects or requests submission of that element, judgment must be rendered in that party’s favor. See, e.g., State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 241 (Tex. 1992) (rendering judgment against plaintiff on premises-defect claim where the charge omitted an essential element and the State objected to that omission by requesting a jury question); see also Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 527-30 (Tex. 1997) (reversing and rendering judgment against plaintiff based on his failure to obtain jury findings on premises-defect or right-of-control elements). Alternatively, this error at minimum necessitates a new trial.

PRAYER

Arnold respectfully requests that the Court grant review, reverse the lower courts’ judgments, and render judgment that Gonzalez take nothing or, alternatively, reverse and remand for a new trial or, alternatively, modify the Final Judgment to delete the joint-and-several-liability provision. Arnold also requests all other relief to which he is entitled, including an award of his costs.

Respectfully submitted,

/s/ Wade Crosnoe Wade C. Crosnoe State Bar No. 00783903 THOMPSON, COE, COUSINS & IRONS, L.L.P. 701 Brazos, Suite 1500 Austin, Texas 78701 Telephone: (512) 703-5078 Facsimile: (512) 708-8777 E-mail: wcrosnoe@thompsoncoe.com

and

Robert E. Valdez State Bar No. 20428100 Jose “JJ” Treviño, Jr. State Bar No. 24051446 VALDEZ, JACKSON & TREVIÑO, P.C. 1826 North Loop 1604 W, Suite 275 San Antonio, Texas 78248 Telephone: (210) 598-8686 Facsimile: (210) 598-8797 E-mail: revaldez@vjtlawfirm.com E-mail: jtrevino@vjtlawfirm.com

Counsel for Petitioner Daniel E. Arnold

CERTIFICATE OF COMPLIANCE

This brief complies with the word limit of Tex. R. App. P. 9.4(i)(2)(D) be- cause it contains 4,158 words, excluding the parts of the brief exempted by Tex. R. App. P. 9.4(i)(1).

/s/ Wade Crosnoe Wade Crosnoe

CERTIFICATE OF SERVICE

I certify that a true and correct copy of this Petition for Review was served on Novemb er 10, 2015, via electronic filing service or email to the following counsel:

John G. Escamilla ESCAMILLA LAW FIRM 1416 Dove Avenue McAllen, Texas 78504 Email: john@escamillalawfirm.com Counsel for Respondent Gerardo Gonzalez

Arturo Martinez LAW OFFICES OF ARTURO MARTINEZ 414 S. Cage Boulevard Pharr, Texas 78577-5443 Email: art@amtzlaw.com Counsel for Respondent Gerardo Gonzalez

Brandy Wingate Voss SMITH LAW GROUP, P.C. 820 E. Hackberry Avenue McAllen, Texas 78501 E-mail: brandy@appealsplus.com Counsel for Respondent Gerardo Gonzalez

/s/ Wade Crosnoe Wade Crosnoe

APPENDIX

APPENDIX Tab 1

• • • CAUSE NO. C-1442-11-I

GERARDO GONZALEZ § IN THE DISTRICT COURT Plaintiff § § vs. § 398111 JUDICIAL DISTRICT § DANIEL E. ARNOLD, § Defendant § HIDALGO COUNTY, TEXAS

FINAL JUDGMENT BE IT REMEMBERED that on April 15, 2013, came on to be heard the above-

entitled and numbered cause, and Plaintiff Gerardo Gonzalez appeared in person and by and through his attorneys of record and announced ready for trial, and Defendant Daniel E. Arnold appeared through his attorneys of record and announced ready for trial, and after general voir dire, and a jury having been previously demanded, a jury of twelve good and lawful men and women, who being duly empanelled and sworn, and after hearing the opening statements, the evidence, the Charge of the Court and the arguments of counsel, returned its verdict to the Court on the 25th day of April, 2013, ten of the jurors agreeing to all parts of the verdict, and no objection being made as to the receipt of the verdict, the verdict was received by the Court and filed among the papers of this cause and the jury was discharged.

The Charge of the Court, including the questions and the verdict of the jury, are incorporated herein for all purposes by reference. It appearing to the Court, based on the pleadings, stipulations, admissions, evidence and verdict of the jury that the following judgment is proper and should be entered:

,-:_, 168 Final judgment Page 1 of 5

1. • • THE COURT FINDS, based on the answers to Question No. 1, that the

jury found Daniel E. Arnold, AW Produce Co. and Gerardo Gonzalez were negligent, and that such negligence was the cause of Plaintiff's injuries.

2. THE COURT FINDS, based on the answers to Question No. 2, that the jury assessed comparative responsibility for the occurrence in question as follows: sixty-five percent (65%) to Daniel E. Arnold; twenty percent (20%) to AW Produce Co.; fifteen percent (15%) to Gerardo Gonzalez; zero percent (0%) to L&M Companies, and zero percent (0%) to Stephen Miller d/b/a MECO Ventures.

3. THE COURT FINDS, based on the answers to Question No. 3, that the jury found damages of Gerardo Gonzalez, arising from the occurrence in question, are as follows: $600,000.00 for past physical pain; $200,000.00 for physical pain that, in reasonable probability, will be sustained in the future; $600,000.00 for mental anguish sustained in the past; $150,000.00 for mental anguish that, in reasonable probability, will be sustained in the future; $50,000 for lost wages in the past, $465,000.00 for loss of earning capacity that, in reasonable probability, will be sustained in the future; $200,000.00 for physical impairment in the past, $100,000.00 for physical impairment that, in reasonable probability, will be sustained in the future; and $250,000.000 for disfigurement in the past.

4. THE COURT FINDS that the total damage award to Gerardo Gonzalez was Two Million Six Hundred Fifteen Thousand and no/100 ($2,615,000.00), and that Daniel E. Arnold, being 65% responsible for the occurrence, is jointly and severally liable for the entire damages awarded to Gerardo Gonzalez by the jury in its answers to Question No. 3.

5. THE COURT FINDS that, pursuant to Tex. Civ. Prac. & Rem. Code Ann.§ 33.012(b ), this award should be reduced by fifteen percent (15% ), i.e. by a total of Three Final judgment Page 2 of 5

• • • Hundred Ninety Two Thousand, Two Hundred Fifty and no/100 ($392,250.00), based

on the jury's answer to Question no. 2, and

6. THE COURT FINDS that after said reductions, Gerardo Gonzalez's past damages recoverable against Daniel E. Arnold are One Million Four Hundred Forty Five Thousand and 00/100 Dollars ($1,445,000.00), that Gerardo Gonzalez's future damages recoverable against Daniel E. Arnold are Seven Hundred Seventy Seven Thousand Seven Hundred Fifty and 00/100 Dollars ($777,750.00), which make the total award of damages Two Million Two Hundred Twenty Two Thousand Seven Hundred Fifty and no/100 ($2,222,750.00).

7. THE COURT FINDS that pursuant to the Texas Finance Code§§ 304.103 & 304.104, prejudgment interest to be paid by Defendant Daniel E. Arnold should be calculated for the Plaintiff's past actual damages at five percent (5% ), simple interest, from the date Plaintiff first filed suit against Defendant (May 27, 2011) until the day before the judgment is entered by this Court (May 21, 2013), or seven hundred twenty five (725) days.

8. THE COURT FINDS that prejudgment interest for these past damages is One Hundred Sixty Eight Thousand, Eight Hundred Thirty Five and 61/100 Dollars ($168,835.61), with prejudgment interest accruing at $232.87 per day.

9. THE COURT FURTHER FINDS that Defendant Arnold receive a credit pursuant to Tex. Civ. Prac. & Rem. Code Ann.§ 33.012(b).

10. THE COURT FINDS that Plaintiff Gerardo Gonzalez is the prevailing party and that, as such, he is entitled to have 100% of his recoverable costs of court to be paid by Daniel E. Arnold. Final judgment Page 3 of 5

11. • • THE COURT FINDS that Plaintiff Gerardo Gonzalez has demonstrated

recoverable court costs in the amount of Nine Thousand Five Hundred Seventy Six and 32/100 ($9,576.32).

12. THE COURT FINDS that Geraldo Gonzalez is entitled to total damages award against Daniel E. Arnold in the amount of One Million Nine Hundred Sixty Six Thousand Five Hundred Eighty Five and 61/100 Dollars ($1,966,585.61), plus costs in the amount of Nine Thousand Five Hundred Seventy Six and 32/100 ($9,576.32), for a total judgment of One Million Nine Hundred Seventy Six Thousand One Hundred One and 93/100 Dollars ($1,976,161.93).

It is therefore ORDERED, ADJUDGED, and DECREED:

13. That Plaintiff Geraldo Gonzalez be, and is, hereby awarded a judgment of and against Daniel E. Arnold in the amount of One Million Nine Hundred Seventy Six Thousand One Hundred One and 93/100 Dollars ($1,976,161.93).

14. That Geraldo Gonzalez's damages, factoring in pre-judgment interest, shall total One Million Nine Hundred Sixty Six Thousand Five Hundred Eighty Five and 61 I 100 Dollars ($1,966,585.61.00).

15. That 100% of Plaintiff Gerardo Gonzalez's recoverable costs are adjudged against Daniel E. Arnold.

16. That Plaintiff Gerardo Gonzalez's recoverable costs total Nine Thousand Five Hundred Seventy Six and 32/100 ($9,576.32).

17. That the above and foregoing judgment shall bear interest at the rate of five percent (5%) per annum, compounded annually, from the date of this judgment until paid, pursuant to Tex. Finance Code§§ 304.003 & 304.006.

Final judgment Page 4 of 5 1 'i' 1

• • • 18. That Plaintiff Gerardo Gonzalez has execution and ALL other writs and court as processes for the enforcement and collection of this judgment and for costs of

may be necessary or proper to collect the same.

19. This judgm ent finally disposes of all parties to this lawsuit and of all claims asserted by any party in all pleadings, and is a final, appealable judgment.

SIGNED and ENTERED this 22nd day of May 2013.

a~~~ THE HONORABLE AIDA SALINAS FLORES

Page 5 of 5 Final judgme nt

APPENDIX Tab 2

• • CAUSE NO. C-1442-11-I

GERALDO GONZALEZ, § Plaintiff § § VS. § HIDALGO COUNTY, TEXAS § DANIEL E. ARNOLD, § -Defendant § 398TH JUDICIAL DISTRICT

CHARGE OF THE COURT

LADIES AND GENTLEMEN OF THE JURY:

This case is submitted to you by asking questions about the facts, which you must decide from the evidence you have heard in this trial. You are the sole judges of the credibility of the witnesses and the weight to be given their testimony, but in matters of law, you must be governed by the instructions in this charge. In discharging your responsibility on this jury, you will observe all the instructions which have previously been given you. I shall now give you additional instructions which you should carefully and strictly follow during your deliberations.

1. Do not let bias, prejudice or sympathy play any part m your deliberations.

2. In arriving at your answers, consider only the evidence introduced here under oath and such exhibits, if any, as have been introduced for your consideration under the rulings of the court, that is, what you have seen and heard in this courtroom, together with the law as given you by the court. In your deliberations, you will not consider or discuss anything that is not represented by the evidence in this case.

3. Since every answer that is required by the charge is important, no juror should state or consider that any required answer is not important.

4. You must not decide who you think should win, and then try to answer the questions accordingly. Simply answer the questions, and do not discuss nor concern yourselves with the effect of your answers.

5. You will not decide the answer to a question by lot or by drawing straws, or by any other method of chance. Do not return a quotient verdic~ .;\~, , , ...,_ :·"'~ r: ' quotient verdict means that the jurors agree to abide by the resulf'to ;l:)e" r~cli~¥ ~ \'! J. by adding together each juror's figures and dividing by the num~ bf. jUrors to

• • • get an average. Do not do any trading on your answers; that is, one juror should not agree to answer a certain question one way if others will agree to answer another question another way.

6. Unless otherwise instructed, you may answer a question upon the vote of ten or more jurors. If you answer more than one question upon the vote of ten or more jurors, the same group of at least ten of you must agree upon the answers to each of those questions.

These instructions are given you because your conduct is subject to review the same as that of the witnesses, parties, attorneys and the judge. If it should be found that you have disregarded any of these instructions, it will be jury misconduct and it may require another trial by another jury; then all of our time will have been wasted.

"Negligence" means failure to use ordinary care, that is, failing to do that which a person of ordinary prudence would have done under the same or similar circumstances or doing that which a person of ordinary prudence would not have done under the same or similar circumstances.

"Ordinary care" means that degree of care that would be used by a person of · ordinary prudence under the same or similar circumstances.

With respect to the condition of the premises, Daniel E. Arnold and L&M Companies were negligent if -

a. the condition posed an unreasonable risk of harm, and b. Daniel E. Arnold and L&M Companies knew or reasonably should have known of the danger, and c. Daniel E. Arnold and L&M Companies failed to exercise ordinary care to protect Gerardo Gonzalez from the danger, by both failing to adequately warn Gerardo Gonzalez of the condition and failing to make the condition reasonably safe.

"Ordinary care" when used with respect to Daniel E. Arnold and L&M Companies as owners or occupiers of the premises, means that degree of care that would be used by an owner or occupier of ordinary prudence under the same or similar circumstances.

"Proximate cause" means a cause that was a substantial factor in bringing about an event, and without which cause such event would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that a person using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom. There may be more than one proximate cause of an event.

Page 2 of 11 125

• • • The presiding juror or any other who observes a violation of the court's instructions shall immediately warn the one who is violating the same and caution the juror not to do so again.

When words are used in this charge in a sense that varies from the meaning commonly understood, you are given a proper legal definition, which you are bound to accept in place of any other meaning.

Answer "Yes" or "No" to all questions unless otherwise instructed. A "Yes" answer must be based on a preponderance of the evidence unless you are otherwise instructed. If you do not find that a preponderance of the evidence supports a "Yes" answer, then answer "No." The term "preponderance of the evidence" means the greater weight and degree of credible evidence admitted in this case. Vvhenever a question requires an answer other than "Yes" or "No," your answer must be based on a preponderance of the evidence unless you are otherwise instructed.

After you retire to the jury room, you will select your own presiding juror. The first thing the presiding juror will do is to have this complete charge read aloud and then you will deliberate upon your answers to the questions asked.

It is the duty of the presiding juror-

1. to preside during your deliberations,

2. to see that your deliberations are conducted in an orderly manner and in accordance with the instructions in this charge,

3. to write out and hand to the bailiff any communications concerning the case that you desire to have delivered to the judge,

4. to vote on the questions,

:J. to vvrite your answers to the questions in the spaces provided, and

6. to certify to your verdict in the space provided for the presiding juror's signature or to obtain the signatures of all the jurors who agree with the verdict if your verdict is less than unanimous.

You should not discuss the case with anyone, not even with other members of the jury, unless all of you are present and assembled in the jury room. Should anyone attempt to talk to you about the case before the verdict is returned, whether at the courthouse, at your home, or elsewhere, please inform the judge of this fact.

Page 3 of11

• • • When you have answered all the questions you are required to answer under the instructions of the judge and your presiding juror has placed your answers in the spaces provided and signed the verdict as presiding juror or obtained the signatures, you will inform the bailiff at the door of the jury room that you have reached a verdict, and then you will return into court with your verdict.

Signed on this the 25th day of April, 2013 at f 0 ~ .J...O, ~

Page 4 of 11 127

• • QUESTIONl • Did the negligence, if any, of those named below proximately cause the occurrence in question?

Answer "Yes" or "No" for each of the following:

a. Daniel E. Arnold yes b. L&M Companies, Inc. A.lo c. Stephen Miller d/b/a MECO No d. Gerardo Gonzalez \flS e. AW Produce Co., Inc. yts

Page 5 of 11

• • • If you have answered "Yes" to Question 1 for more than one of those named below, then answer the following question. Otherwise, do not answer the following question.

The percentages you find must total 100 percent. The percentages must be expressed in whole numbers. The negligence attributable to any one named below is not necessarily measured by the number of acts or omissions found. The percentage attributable to any one need not be the same percentage attributed to that one in answering another question.

QUESTION2

What percentage of the negligence that caused the occurrence do you find to be attributable to each of those listed below and found by you, in your answer to Question 1, to have been negligent?

a. Daniel E. Arnold LaS b. L&M Companies, Inc. 0 c. Stephen Miller d/b/a :MECO 0 d. Gerardo Gonzalez 16 e. AW Produce Co., Inc. 2J) Total 100 %

129 Page 6 ofll

• • • Answer Questions 3 if you answered "Yes" to any part of Question 1 and answered:

(1) "No" for Gerardo Gonzalez to Question 1, or

(2) 50 percent or less for Gerardo Gonzalez to Question 2.

Otherwise, do not answer any more questions.

QUESTION 3

What sum of money, if paid now in cash, would fairly and reasonably compensate Gerardo Gonzalez for his injuries, if any, that resulted from the occurrence in question?

Consider the elements of damages listed below and none other. Consider each element separately. Do not award any sum of money on any element if you have otherwise, under some other element, awarded a sum of money for the same loss. That is, do not compensate twice for the same loss, if any. Do not include interest on any amount of damages you find.

Answer separately, in dollars and cents, for damages, if any. Do not reduce the amounts, if any, in your answers because of the negligence, if any, of Gerardo Gonzalez.

a. Physical pain sustained in the:~

Answer: ~ 520,000. ~ d; (.cGJ, oc:CJ.""'

b. Physical pain that, in reasonable probability, Gerardo Gonzalez will sustain in the future.

Answer: S ?Joof!)-00. cJi)

c. Mental anguish sustained in the past.

Answer:· ~-LQ:Q&eo. <00? d. Mental anguish that, in reasonable probability, Gerardo Gonzalez will sustain in the future.

Answer: -$ !.:SO,fl-00."" e. Lost wages sustained in the past. ..· 130 Page 7 of11

Answer: • -.$~ uO I O(X). <P • f. Loss of earning capacity that, in reasonable probability, Gerardo Gonzalez will sustain in the future.

Answer: .$ Lj L?5 000. o<=> g. Physical impairment sustained in the past.

Answer: . :$ I)J...>..AJ, ""'"" 00 D . ot> •

h. Physical impairment that, in reasonable probability, Gerardo Gonzalez will sustain in the future.

Answer: tf. I CO, 0 0 0, oo

1. Disfigurement incurred in the past. •<> Answer: $ 25o 1 ooO,

l· Disfigurement that, in reasonable probability, Gerardo Gonzalez will incur in the future.

Answer: -~"----=0'-------

Page 8 of 11

• • • Answer the following question regarding Daniel E. Arnold only if you unanimously answered "Yes" to Qustion 1. Otherwise, do not answer the following question regarding Daniel E. Arnold.

To answer "Yes" to the following question, your answer must be unanimous. You may answer "No" to the following question only upon a vote of ten or more jurors. Otherwise you must not answer the following question.

QUESTION 4

Do you find by clear and convincing evidence that the harm to Gerardo Gonzalez resulted from gross negligence attributable to Daniel E. Arnold?

"Clear and convincing evidence" means the measure or degree of proof that produces a firm belief or conviction of the truth of the allegations sought to be established.

"Gross negligence" means an act or omission by Daniel E. Arnold,

(a) which when viewed objectively from the standpoint of Daniel E. Arnold at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and

(b) of which Daniel E. Arnold has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others.

Answer "Yes" or "No."

Answer: _ _ _ _ _ __

Page 9 of 11

• • • Answer the following question only if you unanimously answered "Yes" to Question 4. Otherwise, do not answer the following question.

QUESTION 5

You are instructed that you must unanimously agree on the amount of any award of exemplary damages.

What sum of money, if any, should be assessed against Daniel E. Arnold and awarded to Gerardo Gonzalez as exemplary damages for the conduct found in response to Question 4?

"Exemplary damages" means any damages awarded as a penalty or by way of punishment but not for compensatory purposes. Exemplary damages includes punitive damages.

Factors to consider in awarding exemplary damages, if any, are-

a. The nature of the wrong.

b. The character of the conduct involved.

c. The degree of culpability of the wrongdoer.

d. The situation and sensibilities of the parties concerned.

e. The extent to which such conduct offends a public sense of justice and propriety.

f. The net worth of Daniel E. Arnold.

Answer in dollars and cents, if any.

Answer: _ _ _ _ _ __

Page 10 of 11

• • CERTIFICATE • We, the jury, have answered the above and foregoing questions as herein indicated, and herewith return same into court as our verdict.

I certify that the jury was unanimous in answering the following questions:

Answer "All" or list questions: ~'L""'--t-J·~?<-------

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134 Page 11 ofll

APPENDIX Tab 3

Arnold v. Gonzalez, Not Reported in S.W.3d (2015)

Gonzalez performed maintenance on forklifts for A–W 2015 WL 5109757 Produce Company (“AW”). Arnold is the president of Only the Westlaw citation is currently available. AW. Gonzalez injured his arm while working as an employee of AW. On the morning of the accident, Javier SEE TX R RAP RULE 47.2 FOR DESIGNATION Luna, an AW supervisor, asked Gonzalez to help another AND SIGNING OF OPINIONS. employee, Jesus Montelongo, set up a section of a conveyor belt, which was located on property owned by Court of Appeals of Texas, Arnold. There was no guard on the belt because the set-up Corpus Christi-Edinburg. of the belt had not yet been completed. Gonzalez reached for a wrench and his hand got caught in the conveyor belt. Daniel E. Arnold, Appellant, Gonzalez broke his forearm in several places and v. sustained severe injuries requiring skin grafts. It is Gerardo Gonzalez, Appellee. undisputed that Gonzalez’s injury was covered by workers’ compensation. NUMBER 13–13–00440–CV | Delivered and filed August 28, 2015 Gonzalez filed negligence and premises liability claims against Arnold, among other defendants. Evidence adduced at trial indicated that Arnold owned the On appeal from the 398th District Court of Hidalgo warehouse where Gonzalez was injured and personally County, Texas. designed and assembled heavy machinery at the property Attorneys and Law Firms including several conveyors. There is disputed evidence regarding whether AW leased the property from Arnold, Wade C. Crosnoe, Robert E. Valdez, for Appellant but it is undisputed that Arnold owns the property where Gonzalez was injured. The evidence showed that much of John G. Escamilla, Arturo Martinez, for Appellee the heavy machinery had never been moved since it had Before Chief Justice Valdez and Justices Garza and been installed. Gonzalez claimed that the emergency Perkes cut-off switch was located on the opposite wall from the conveyor belt and that the distance from the belt to the switch, in part, caused his injuries.

Arnold moved for summary judgment, arguing that under the Texas Labor Code section 408.001(a), the Texas MEMORANDUM OPINION Workers’ Compensation Act (“TWCA”), worker’s compensation was Gonzalez’s exclusive remedy for a work-related injury. See TEX. LAB.CODE ANN. § Memorandum Opinion by Chief Justice Valdez 408.001(a) (West, Westlaw through Ch. 46 2015 R.S.). *1 Appellant, Daniel E. Arnold, appeals the judgment in Gonzalez responded that he was not suing Arnold in his favor of appellee, Gerardo Gonzalez. By four issues, capacity as his employer but only in his capacity as the Arnold contends: (1) Gonzalez’s suit against him is barred premises owner. by the Workers’ Compensation Act; (2) the trial court abused its discretion when it refused to submit his At the jury trial, the trial court granted Gonzalez’s motion requested jury question regarding the right to control; (3) in limine regarding any mention of workers’ the evidence is legally and factually insufficient to compensation. The parties stipulated that (1) Gonzalez support the jury’s award of damages for Gonzalez’s loss was acting in the course and scope of his employment, (2) of future earning capacity; and (4) the trial court erred in AW was a subscriber under the TWCA, and (3) Gonzalez imposing joint and several liability on Arnold for received worker’s compensation benefits for his injuries. damages caused by Gonzalez’s employer. We affirm. The trial court denied Arnold’s request to include a jury question on whether Arnold exercised or retained control over the manner in which the work was performed. The jury found that Arnold was negligent and that he was sixty-five percent responsible for Gonzalez’s injuries. The I. BACKGROUND jury also found AW twenty percent responsible as a designated responsible third party. The trial court made

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Arnold v. Gonzalez, Not Reported in S.W.3d (2015)

Arnold jointly and severally liable for all of the damages Turner, 871 S.W.2d 220, 223 (Tex.App.—El Paso 1993, attributable to AW. The jury awarded $2,614,000 in past writ. denied) (“In addressing the meaning of the former and future damages, including $465,000 in lost future ‘exclusive remedy’ statute, the Supreme Court has found earning capacity. Arnold filed a motion for judgment that an agent, servant, or employee within the meaning of notwithstanding the verdict and motion for new trial. Both the statute is ordinarily one for whose conduct the were denied. This appeal ensued. employer would, aside from the Workmen’s Compensation Act, be legally responsible under the doctrine of respondeat superior.”) (citing McKelvy v. Barber, 381 S.W.2d 59, 62 (Tex.1964)). “In order to impose liability upon an employer for the negligence of II. EXCLUSIVITY OF REMEDY UNDER his employee under the doctrine of respondeat superior, WORKERS’ COMPENSATION ACT the acts of the employee must fall within the scope of the general authority of the employee and must be in *2 By his first issue, Arnold contends that as a matter of furtherance of the employer’s business and for the law he was an employee of AW; thus, because Gonzalez accomplishment of the object for which the employee was received workers’ compensation benefits, Gonzalez’s suit hired.” Long, 871 S.W.2d at 224. against him is prohibited by the exclusivity provision of 408.001(a) of the TWCA, which provides that recovery of Under the theory of respondeat workers’ compensation benefits is the exclusive remedy superior ... an employer may be against the employer or an agent or employee of the vicariously liable for the negligent employer for the death of, or a work-related injury acts of its employee if the sustained by, the employee. See TEX. LAB.CODE ANN. employee’s actions are within the § 408.001(a). Gonzalez responds that whether Arnold was course and scope of his in fact an employee of AW was disputed at trial, Arnold employment.... The employee’s failed to request a jury question on the issue, and acts must be of the same general therefore, Arnold has waived his affirmative defense that nature as the conduct authorized or workers’ compensation exclusivity applies. incidental to the conduct authorized to be within the scope of “Recovery of workers’ compensation benefits is the sole employment. remedy of an injured employee covered by workers’ compensation insurance against the employer, agent of the employer, or employee of the employer, absent an Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, intentional act to harm or gross negligence by the 757 (Tex.2007). For example, employer.” Burkett v. Welborn, 42 S.W.3d 282, 287 [i]n Ward v. Wright, 490 S.W.2d 223 (Tex.App.— Texarkana 2001, no pet.) (citing Tex. (Tex.Civ.App.—Fort Worth 1973, no writ), two Lab.Code Ann. § 408.001(a); Darensburg v. Tobey, 887 company employees, while on their lunch hour and not S.W.2d 84, 86–87 (Tex.App.—Dallas 1994, writ denied)). on employer business, were involved in a collision A co-employee accused of negligent conduct is exempt between their respective automobiles as they both were from tort actions by the exclusive remedy provision, and in the process of leaving the company parking lot. The the immunity of the employer extends to co-employees. Fort Worth Court of Appeals held that because it was Burkett, 42 S.W.3d at 287; see also Lockett v. HB Zachry “obvious that the parties’ common employer would not, Co., 285 S.W.3d 63, 75 (Tex.App.—Houston [1st Dist.] under the Respondeat superior doctrine, have been 2009, no pet.) (concluding that the employer was immune responsible for the negligence of either of the parties to from premises liability cause of action because employee the automobile collision[,]” the defendant driver had received workers’ compensation). However, Texas [co-employee] was not immune from liability under the courts have determined that section 408.001’s reference to exclusive remedy provision [of the TWCA] (Article “employee of the employer” includes only an employee 8306, Section 3) and was not therefore entitled to a for whose conduct the employer is legally responsible summary judgment. under the doctrine of respondeat superior. Burkett, 42 S.W.3d at 288–89; Darensburg, 887 S.W.2d. at 86–87 *3 Long, 871 S.W.2d at 223–24. (explaining that in Texas, “[a]n ‘agent, servant, or employee’ within the meaning of Section 3(a) of the Here, Gonzalez sued Arnold under a premises liability workers’ compensation statute is one for whose conduct theory claiming that “[b]ecause of the negligent manner in the employer would be legally responsible under the which the warehouse [that Arnold owned and/or doctrine of respondeat superior”); see also Long v. occupied] had been set up, designed, and operated, there © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

Arnold v. Gonzalez, Not Reported in S.W.3d (2015)

was no readily available way for him to avoid or ordinary care to protect” Gonzalez “from the danger, by minimize the serious injuries that ensued after he did both failing to adequately warn” Gonzalez “of the become entangled [in the conveyor belt].”1 Gonzalez condition and failing to make the condition reasonably further claimed the following: safe”; and (2) “ ‘Ordinary care’ when used with respect to [Arnold] ... as owners or occupiers of the premises, means After acquiring the subject that degree of care that would be used by an owner or property, [Arnold] had negligently occupier of ordinary prudence under the same or similar set up a network of machines, circumstances.” Arnold did not request a jury question motors, electrical circuitry, and regarding whether he had set up the layout of the fixtures which he knew would be warehouse in furtherance of AW’s business while acting utilized by various individuals, in the course and scope of his employment as AW’s agent including employees of various or employee. businesses. Although he had no expertise, Arnold designed the *4 Arnold argues that even if the evidence supports a premises in a way that failed to finding that he owned the premises, so long as his claim properly account for the safety of that he was AW’s employee was undisputed at trial, we his invitees and licensees, and must reverse the jury’s verdict because Gonzalez received which created [foreseeable] risks to workers’ compensation benefits making Arnold immune individuals he knew would likely from suit. We disagree. be on the property. “The failure to request a jury instruction on an affirmative At trial, the issue of whether Arnold designed the defense results in waiver of that ground by the party warehouse’s layout as part of his duties as AW’s relying on it unless the issue was conclusively employee was contested by the parties.2 Arnold insisted established.” XCO Prod. Co. v. Jamison, 194 S.W.3d 622, that when he set up the warehouse and installed the 632 (Tex.App.—Houston [14th Dist.] 2006, pet. denied). conveyers, he was acting in furtherance of AW’s business “The [workers’ compensation act’s] exclusive remedy and that his acts fell within the scope of his work duties provision is an affirmative defense that the defendant for AW. However, Gonzalez disputed Arnold’s assertions must plead and prove.” Warnke v. Nabors Drilling USA, and presented evidence to the jury that impeached L.P., 358 S.W.3d 338, 343 (Tex.App.—Houston [1st Arnold’s credibility, such as evidence that Arnold had Dist.] 2011, no pet.) (op. on reh’g) (citing Exxon Corp. v. incorrectly stated in a lease agreement with L & M Perez, 842 S.W.2d 629, 630–31 (Tex.1992); AMS Const Companies and in a petition filed in a separate lawsuit by Co. v. K.H.K. Scaffolding Houston, Inc., 357 S.W.3d 30, Arnold and AW that AW owned the premises. AW’s 43 (Tex.App.—Houston [1st Dist.] 2011, no pet.)); status as a lessee of the warehouse was also contested by Abraxas Petroleum Corp. v. Hornburg, 20 S.W.3d 741, the parties. Arnold consistently claimed that he had leased 763 (Tex.App.—El Paso 2000, no pet.) (explaining that the warehouse where Gonzalez had been injured to AW the failure to request and tender a proper jury charge on and that AW had control over the premises and was the issue, waives any complaint relating to an affirmative responsible for the premises’ condition. However, on defense on appeal). direct examination by Gonzalez, Arnold agreed that there was no documentation or lease showing that AW actually Here, Arnold’s credibility was at issue, and the evidence leased the premises from Arnold. Arnold claimed that he was contested regarding whether Arnold acted in had an oral lease with AW’s representative, who furtherance of AW’s interests when he committed the happened to be Arnold, regarding AW’s duty to maintain alleged negligent acts.3 Arnold did not request a question the premises. And, Arnold stated that he, only as AW’s in the jury charge concerning whether he was acting in employee and agent, was responsible for repairs on the furtherance of AW’s interests when he set up the premises. Gonzalez pointed out and Arnold agreed that warehouse’s layout and installed the conveyor. Given that Arnold also rented the premises to L & M Companies for the evidence was contested that Arnold was acting in a period of time and that the two had a written lease. furtherance of AW’s interest when he allegedly committed the negligent acts or omissions, we are unable The trial court instructed the jury as follows: (1) “With to conclude that the evidence conclusively established respect to the condition of the premises, [Arnold was] that Arnold was AW’s agent or employee within the negligent if ... the condition posed an unreasonable risk of meaning of the TWCA. See Burkett, 42 S.W.3d at 288–89 harm and” Arnold “knew or reasonably should have (defining the term “employee of the employer” as an known the danger, and” Arnold “failed to exercise employee for whose conduct the employer is legally

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responsible under the doctrine of respondeat superior); or omissions as a property owner. Id. On that basis, the Darensburg, 887 S.W.2d. at 86–87. Moreover, in this court held that the exclusive remedy provision did not bar case, whether Arnold was acting in furtherance of AW’s Burkett’s claim against Welborn and reversed the trial interests is a question of fact as it was contested at trial. court’s summary judgment granted in favor of Welborn. See Arbelaez v. Just Brakes Corp., 149 S.W.3d 717, 720 Id. at 290. (Tex.App.—Austin 2004, no pet.) (explaining that “course and scope of employment is generally a fact issue Like the premises owner in Burkett, Arnold’s status as a like negligence or proximate cause”) (citing GTE Sw., co-employee does not bar Gonzalez’s negligence claims, Inc. v. Bruce, 998 S.W.2d 605, 618 (Tex.1999); Tex. because AW would not be legally responsible for Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 515 Arnold’s acts or omission as a landowner under the (Tex.1995)); see also Arrellano v. State Farm Fire & Cas. doctrine of respondeat superior. See Id. Accordingly, we Co., 191 S.W.3d 852, 855 (Tex.App.— Houston [14th overrule Arnold’s first issue.4 Dist.] 2006, no pet.) (“Whether an individual acts within the course and scope of employment is generally a question of fact when more than one inference may be drawn from the evidence.”). III. JURY QUESTION *5 Therefore, by not requesting a jury question regarding whether he was acting in furtherance of AW’s interests, *6 By his second issue, Arnold contends that the trial Arnold has not preserved his affirmative defense that the court abused its discretion when it refused to submit his workers’ compensation exclusive remedy provision requested jury question regarding the right to control. applies in this case. See Abraxas Petroleum Corp., 20 Pursuant to Pattern Jury Charge 66.3, Arnold requested S.W.3d at 763; see also Warnke, 358 S.W.3d at 343 (“The the following question: [TWCA’s] exclusive remedy provision is an affirmative Did Daniel E. Arnold, Individually, exercise or retain defense that the defendant must plead and prove.”) (citing some control over the manner in which the injury Exxon Corp., 842 S.W.2d at 630–31; AMS Const. Co., causing activity was performed, other than the right to 357 S.W.3d at 43). order the work to start or stop or to inspect progress or receive reports? Our conclusion is consistent with our sister court’s opinion in Burkett which involved similar facts. 42 Answer “Yes” or “No.” S.W.3d at 282. In that case, Kenneth Burkett was injured while performing work on a trailer home owned by his Gonzalez responds that the trial court correctly denied employer, but located on land owned individually by Arnold’s requested question because it is not applicable in Rosalie Welborn, the sole-shareholder of the corporation this case. employing Burkett. Id. at 285. Welborn was also employed as the president of the corporation. Id. Burkett A trial court’s decision whether to submit a particular jury received workers’ compensation benefits as an employee question is reviewed for an abuse of discretion. Park N. of the corporation, and later brought a premises liability Serv. Ctr., L.P. v. Applied Circuit Tech., Inc., 338 S.W.3d claim against Welborn. Id. at 286. The trial court granted 719, 721 (Tex.App.—Dallas 2011, no pet.) (citing Tex. summary judgment in favor of Welborn, ruling that Dep’t of Human Servs. v. E.B., 802 S.W.2d 647, 649 Burkett’s recovery under workers’ compensation was a (Tex.1990); Hen ry v. Masson, 333 S.W.3d 825, 848–49 bar to further recovery. Id. On appeal, Welborn argued (Tex.App.—Houston [1st Dist.] 2010, no pet.)). An abuse that the exclusive remedy available to Burkett against his of discretion occurs if the trial court acts in an arbitrary or co-employee is recovery of workers’ compensation unreasonable manner or acts without reference to any benefits. Id. at 288. In addressing this argument, the court guiding rules and principles. Downer v. Aquamarine noted that the exclusive remedy provision bars recovery Operators, Inc., 701 S.W.2d 238, 241–42 (Tex.1985). A against a co-employee only where the employer is legally trial court must submit a properly requested jury question responsible for the conduct under the doctrine of if the issue is raised by the pleadings and evidence and is respondeat superior. Id. at 288–89. The court explained necessary to enable the jury to render a verdict. TEX.R. that although the corporation was responsible for the CIV. P. 278; Union Pac. R.R. Co. v. Williams, 85 S.W.3d trailer home on Welborn’s property, this did not “in itself 162, 166 (Tex.2002); Park N. Serv. Ctr., L.P., 338 S.W.3d distinguish her from the duties of [a] property owner[,]” at 721. “A trial court may refuse to submit a question only owed to an invitee. Id. at 289. The court determined that if there is no evidence in the record to warrant its the employer would not be responsible for Welborn’s acts submission.” Park N. Serv. Ctr., L.P., 338 S.W.3d at 721

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(citing Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex.1992); second issue. Exxon Corp. v. Perez, 842 S.W.2d 629, 631 (Tex.1992) (per curiam); Barnett v. Coppell N. Tex. Court, Ltd., 123 S.W.3d 804, 824 (Tex.App.—Dallas 2003, pet. denied)).

As Arnold points out in his reply brief, Pattern Jury VI. LOSS OF FUTURE EARNING CAPACITY Charge 66.3 applies to property owners. See id. However, a property owner is only entitled to such an instruction if By his third issue, Arnold contends that there is no legally the injury was caused by “the negligent activity of an or factually sufficient evidence to support the jury’s independent contractor” or if the premises defect was award of $465,000 in damages for lost future earning created by an independent contractor’s work.5 Braudrick capacity. v. Wal-Mart Stores, Inc., 250 S.W.3d 471, 476 (Tex.App.—El Paso 2008, no pet.); see also Tex. R. CIV. P. § 95.003). “An independent contractor has been A. Standard of Review defined as ‘any person who, in the pursuit of an The test for legal sufficiency is “whether the evidence at independent business, undertakes to do a specific piece of trial would enable reasonable and fair-minded people to work for other persons, using his own means and reach the verdict under review.” City of Keller v. Wilson, methods, without submitting himself to their control in 168 S.W.3d 802, 827 (Tex.2005). We review the evidence respect to all its details.’ ” Schievink v. Wendylou Ranch, in the light most favorable to the verdict, crediting any Inc., 227 S.W.3d 862, 866 (Tex.App.— Eastland 2007, favorable evidence if a reasonable fact-finder could and pet. denied) (quoting Indus. Indem. Exch. v. Southard, disregarding any contrary evidence unless a reasonable 160 S.W.2d 905, 907 (1942)). In making a determination fact-finder could not. Id. at 821–22, 827. regarding whether someone is an independent contractor, we consider several factors, which include the following: A no-evidence point will be sustained when (1) there is a complete absence of evidence of a vital fact, (2) the court (1) the independent nature of his is barred by rules of law or evidence from giving weight business; (2) his obligation to to the only evidence offered to prove a vital fact, (3) the furnish necessary tools, supplies, evidence offered to prove a vital fact is no more than a and material to perform the job; (3) mere scintilla, or (4) the evidence conclusively establishes his right to control the progress of the opposite of a vital fact. King Ranch, Inc. v. Chapman, the work, except as to final results; 118 S.W.3d 742, 751 (Tex.2003); see City of Keller, 168 (4) the time for which he is S.W.3d at 810. Less than a scintilla of evidence exists employed; and (5) the method of when the evidence is “so weak as to do no more than payment, whether by time or by the create a mere surmise or suspicion” of a fact, and the legal job. effect is that there is no evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983). *7 Id. When considering a factual sufficiency challenge to a Arnold does not provide citation to the record regarding jury’s verdict, courts of appeals must consider and weigh where the evidence raised the issue of AW’s or all of the evidence, not just that evidence which supports Gonzalez’s status as an independent contractor.6 See the verdict. Mar. Overseas Corp. v. Ellis, 971 S.W.2d TEX.R.APP. P. 38.1(i). Therefore, we cannot conclude 402, 406–07 (Tex.1998). A court of appeals can set aside that the trial court abused its discretion by determining the verdict only if it is so contrary to the overwhelming that Pattern Jury Charge 66.3 is inapplicable under these weight of the evidence that the verdict is clearly wrong circumstances. Arnold further argues, in his reply brief, and unjust. Id. at 407. that because there was evidence that he was the landlord and AW was the tenant, the trial court should have submitted his requested question to the jury. However, as stated above, Pattern Jury Charge 66.3 is required when B. Applicable Law there is evidence that an independent contractor has *8 “Loss of future earning capacity is the plaintiffs caused the negligent activity or premises defect, and diminished capacity to earn a living after the trial, which Arnold has not provided any authority, and we find none, is always uncertain.”7 Plainview Motels, Inc. v. Reynolds, providing that in a landlord-tenant situation Pattern Jury 127 S.W.3d 21, 35 (Tex.App.—Tyler 2003, pet. denied) Charge 66.3 is appropriate. Thus, we overrule Arnold’s (corrected op.). Due to its uncertainty, the jury has

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considerable discretion in determining the amount of the he has not been authorized to go back to the type of work plaintiff’s future earning capacity. Id. (citing Mclverv. that he did prior to the accident. According to Gonzalez, Gloria, 169 S.W.2d 710, 712 (1943); Tri–State Motor he is no longer able to physically perform mechanical Transit Co. v. Nicar, 765 S.W.2d 486, 492 work like he did prior to the accident. Specifically, (Tex.App.—Houston [14th Dist.] 1989, no writ)). “To Gonzalez said, “No, I can’t [hold the tools with the type support an award of damages for loss of future earning of strength that I needed with my dominant arm the way I capacity, the plaintiff must introduce evidence sufficient did before the] incident. I tried, but I can’t hold the to allow the jury to reasonably measure earning capacity wrench or I can’t hold the hammer. I just can’t make a in monetary terms.” Id. at 35–36 (citing Bonney v. San fist. This is all the movement that I can make, so I—it Antonio Transit Co., 325 S.W.2d 117, 121 (1959); City of doesn’t help me at all to work as I used to.” Houston v. Howard, 786 S.W.2d 391, 395–96 (Tex.App.— Houston [14th Dist.] 1990, writ denied)). The trial court admitted two W–2 forms showing that in The jury may base its award of loss of future earning the month of January of 2010, Gonzalez made $943 at capacity damages on several factors that may affect a AW and $1116 as a janitor at another job site. Gonzalez person’s capacity to earn a living, including stamina, testified that he was injured in February of 2010; efficiency, ability to work with pain, and the weakness therefore he could no longer work and received no further and degenerative changes which naturally result from an pay checks that year. However, prior to the accident, injury and from long suffered pain. Id. (citing Gonzalez had planned on continuing working at both jobs Metropolitan Life Ins. Co. v. Haney, 987 S.W.2d 236, 244 and stated that he would have received a raise at AW had (Tex.App.—Houston [14th Dist.] 1999, pet. denied)). The he continued working there. Gonzalez testified that prior plaintiff must provide evidence of his or her capacity to to 2010, he had been working as a janitor for a few years.8 work prior to the injury and that his or her capacity was Regarding his position as a janitor, the trial court admitted impaired as a result of the injury. Id. “In determining what a checklist that Gonzalez signed when he started working evidence is sufficient to support a claim of loss of earning with a particular janitorial company in 2009. The capacity, no general rule can be laid down, except that checklist included a requirement that Gonzalez be able to each case must be judged upon its peculiar facts, and the clean 3,500 square feet per hour; however, Gonzalez damages proved with that degree of certainty of which the stated that he can no longer do so due to his injury. case is susceptible.” Strauss v. Cont’l Airlines, Inc., 67 S.W.3d 428, 436 (Tex.App.—Houston [14th Dist.] 2002, *9 The trial court also admitted pictures of Gonzalez’s no pet.). arm, which depicted the scars of his injury, which appeared to be severe based on the amount of scarring.9 Evidence was presented that when Gonzalez was injured, his arm was “hanging” off his body “like a rag” and that C. Discussion he had been hospitalized for thirty days. Gonzalez Arnold acknowledges that Gonzalez presented evidence explained that one of the pictures showed where he had (1) that by working at two jobs the month before the received a skin graft after he was injured and that another accident, he earned a total of just over $2000, (2) of his picture showed where skin had been removed from his leg employment records from his janitorial employer, ABM, to perform the skin graft. Gonzalez said that the doctors from the ten-month period prior to the accident, and (3) removed two skin grafts from the top of his leg and two “he could not return to the type of physical labor he was from the bottom. According to Gonzalez, the process of performing before the accident.” However, Arnold claims removing the skin was almost as painful as when he that Gonzalez provided no evidence (1) that Gonzalez was injured his arm in the accident. Gonzalez showed his arm unable to return to a less strenuous workload than prior to to the jury and demonstrated how much he was able to the accident and (2) “of his life expectancy or how long straighten his arm. Gonzalez testified that he cannot feel he would have continued working.” Thus, Arnold argues hot or cold on the surface of his grafted skin, but he does that the jury was required to speculate about Gonzalez’s feel a lot of pain within the arm. future earning capacity. On cross-examination, Gonzalez testified that he had his At trial, Gonzalez testified that prior to the accident, he mechanic’s license and GED, which is a high school “worked two jobs most of the time” and that he does not equivalency degree. Gonzalez said that prior to working feel like the same person anymore because he can no at AW, he had worked for ten years at a steel company, longer work and do things around his home that he used then six months at a molding factory, then one year at a to be able to do such as cut the trees outside. Gonzalez car rental company, and then he worked as a stated that his doctors did not allow him to work for an self-employed mechanic for approximately two years. entire year after the accident and that as he understood it, © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6

Arnold v. Gonzalez, Not Reported in S.W.3d (2015)

According to Gonzalez, while he worked as a mechanic, *10 Gonzalez testified that he is unable to use his arm he helped his wife clean banks. Gonzalez worked as a without feeling pain and that although he tried to use his fork-lift mechanic for AW for four months prior to his arm, he was unable to do many of the things he could do injury. prior to the accident. Gonzalez stated that he is right-handed, and due to the injury, he is in the process of As stated above, Gonzalez provided evidence of his learning to use his left hand for simple tasks but he does capacity to work prior to the injury, including evidence not have the coordination in his left arm that he had in his that he had worked as a janitor, at a steel company, a dominant right arm. Gonzalez testified that his past jobs molding factory, and as a mechanic. Gonzalez also have required the use of both arms, including being a presented evidence that his capacity to work had been mechanic and that after his injury, he can no longer impaired as a result of the injury because he could no perform the job duties of a mechanic because it is too longer use his arm as he did prior to the accident and that difficult with only one uninjured arm. The evidence he could no longer work as a mechanic or a janitor. See established that Gonzalez has worked in jobs which Plainview Motels, Inc., 127 S.W.3d at 35. require a certain degree of strength and stamina and that Gonzalez no longer has the strength and stamina he had Arnold further argues that the evidence is insufficient prior to the accident. Gonzalez’s physical therapist, because Gonzalez merely showed that he worked at AW Fortino Gonzalez, testified that Gonzalez has permanently at minimum wage for a few months before the accident. lost strength and flexibility in various muscles in his arm. However, Gonzalez testified about his extensive work And his physician, Donna Mery, M.D., testified that history prior to the accident and prior to his employment Gonzalez’s injuries caused permanent damage which at AW. Moreover, the trial court admitted Gonzalez’s restricted his use of his right arm. Moreover, Gonzalez records of his prior employment as a janitor for the ten testified that he has attempted to perform other types of months prior to his employment with AW.10 Thus, we less strenuous work, but has been unable to earn a living. conclude that Gonzalez introduced evidence sufficient to In addition, vocational rehabilitation therapist and life allow the jury to reasonably measure his earning capacity care planner, Viola Lopez, performed various vocational in monetary terms. See Id. tests on Gonzalez resulting in her opinion that he was not employable in any competitive marketplace due to his Arnold also complains that Gonzalez provided no injuries and skillset. In Lopez’s assessment, Gonzalez can evidence of his life expectancy. However, this Court has no longer perform physically demanding jobs like those already determined that “proof of life expectancy is not he had previous to the accident and he does not have the required to recover lost future earnings” and that “the jury skill set to compete for non-physical jobs. Therefore, may reach its own conclusion on life expectancy based on Gonzalez presented sufficient evidence for the jury to evidence of the injured person’s age, health and physical base its award, and as no general rule can be laid down condition prior to the injury, and the permanence of the regarding how the jury makes its loss of future earning injury.” Borden Inc. v. Guerra, 860 S.W.2d 515, 524–25 capacity damages award, except that each case must be (Tex.App.—Corpus Christi 1993, writ dism’d by agr.). judged upon its peculiar facts, we conclude that the evidence of damages in this case was sufficient to support Arnold also argues that Gonzalez was required to show the jury’s award. See Strauss, 67 S.W.3d at 436 that he could not return to a less strenuous workload than (explaining that in Mclver v. Gloria, 169 S.W.2d 710, 712 he performed prior to the accident. The jury was asked to (Tex.1943), the court upheld “the jury’s award of loss of determine the amount of Gonzalez’s loss of his future earning capacity, even though the exact amounts of [the earning capacity if he had not been injured.11 See Strauss, plaintiff’s] past earnings were not shown, because the 67 S.W.3d at 435 (“Recovery for loss of earning capacity evidence of the nature and extent of his farming is not based on the actual earnings lost, but rather on the operations and the kind and amount of the crops he loss of capacity to earn money.”); see also Plainview produced provided the jury with sufficient facts to Motels, Inc., 127 S.W.3d at 35. In other words, the jury determine the proper amount of damages.”). We conclude examined several factors that they believed may have that there is more than a scintilla of evidence to support affected Gonzalez’s earning capacity, including his the jury’s finding on loss of future earning capacity. Thus, stamina, efficiency, ability to work with pain, and the viewing the evidence in the light most favorable to the weakness and degenerative changes which naturally result verdict, crediting any favorable evidence if a reasonable from an injury and from long suffered pain and then fact-finder could and disregarding any contrary evidence determined how much he suffered in damages for that unless a reasonable fact-finder could not, we conclude loss. See Plainview Motels, Inc., 127 S.W.3d at 35. that the evidence is legally sufficient to support the jury’s award of damages for loss of future earning capacity. City

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 Arnold v. Gonzalez, Not Reported in S.W.3d (2015)

of Keller, 168 S.W.3d at 821–22, 827. factor which may be considered in determining lost earning capacity” and Gonzalez provided his tax forms Next, Arnold argues that the evidence of the damages and employment records that both included deductions for awarded to Gonzalez for loss of future earning capacity is taxes. Big Bird Tree Serv. v. Gallegos, 365 S.W.3d 173, factually insufficient because there was evidence, 179 (Tex.App.—Dallas 2012, pet. denied). Because including, among other things, a videotape, showing that Gonzalez’s past-earnings were only one factor for the jury Gonzalez is still capable of performing physical work to consider and the trial court admitted evidence of such as sweeping and lifting objects over his head. Arnold Gonzalez’s net income, we cannot conclude that the claims that Gonzalez admitted his involvement in evidence is insufficient for this reason. See Plainview constructing a house and garage on his land, and that he Motels, Inc., 127 S.W.3d at 35; Border Apparel–East, Inc. acquired a building permit listing himself as the v. Guardian, 868 S.W.2d 894, 897 (Tex.App.—El Paso contractor of that project. Arnold states that “[t]his 1993, no writ) (“The central question to the proper evidence becomes overwhelming when weighed against disposition of the instant appeal is not what Appellee Gonzalez’s gap-riddled and sparse record of prior actually earned prior to her injury, but what her capacity earnings.” to earn a livelihood actually was, and to what extent that capacity has been impaired.”). We disagree with Arnold’s interpretation of Gonzalez’s testimony. Although Gonzalez stated that he and his wife *11 Accordingly, we conclude that the verdict is not so are having a house and garage built on their property, he contrary to the overwhelming weight of the evidence that did not testify that he is building the structures himself. it is clearly wrong and unjust. Mar. Overseas Corp., 971 Gonzalez testified that he applied for a building permit S.W.2d at 407. Further, the evidence is legally sufficient and that the permit lists him as the contractor. However, to support the verdict. We overrule Arnold’s third issue. Gonzalez denied that he was a contractor for the project and that the county had filled out the form that he merely signed. Moreover, Arnold has not pointed to any evidence in the record that Gonzalez’s designation by the county as contractor on the building permit contradicts the evidence V. JOINT AND SEVERAL LIABILITY that he has suffered loss of his future earning capacity. Although Arnold emphasizes on appeal that the jury saw By his final issue, Arnold contends that the trial court a video of Gonzalez sweeping and also lifting a screen erred in imposing joint and several liability on Arnold for door, he does not explain how these acts make the jury’s damages caused by Gonzalez’s employer, AW. Arnold finding that Gonzalez lost his future earning capacity so explains that under the general rule, the contrary to the overwhelming weight of the evidence that proportionate-responsibility statute allows the claimant to the verdict is clearly wrong and unjust,12 especially given collect from the defendant only the percentage of that Gonzalez testified that when he swept and lifted the damages found by the trier of fact, with only one “even screen door, he could not and did not use his right arm.13 potentially applicable” exception under section 33.013(b), In addition, Dr. Mery viewed the videos and concluded which provides that when the defendant’s percentage of that the videos did not show anything of medical responsibility is greater than fifty percent, then the significance in determining Gonzalez’s impairment defendant is jointly and severally liable for the damages because the videos did not show the extent of pain recoverable by the claimant under that section. See TEX. Gonzalez experienced when he swept and lifted the screen CIV. PRAC. & REM.CODE ANN. § 33.013(b) (West, door. Westlaw through Ch. 46 2015 R.S.). Arnold argues that the jury found AW negligent and attributed twenty Next, Arnold argues that the evidence was factually percent of the responsibility for the accident to AW; thus, insufficient because Gonzalez’s damages for loss of because AW is immune from suit under the TWCA, the future earning capacity was “not reduced to net present damages the jury attributed to AW are not “damages value or to account for taxes that Gonzalez would have recoverable by the claimant” within the meaning of paid on his earnings.” See TEX. CIV. PRAC. & section 33.013(b) of the Texas Civil Practice and REM.CODE ANN. § 18.091(a) (West, Westlaw through Remedies Code. Ch. 46 2015 R.S.) (requiring claimant of loss of earnings to provide “evidence to prove the loss ... in the form of a The San Antonio court of appeals in Bay Rock Operating net loss after reduction for income tax payments or unpaid Co. v. St Paul Surplus Lines Insurance Co., cited by both tax liability pursuant to any federal income tax law”). parties, in interpreting section 33.013(b) stated that However, “evidence of actual past-earnings is only one the plain language of section © 2015 Thomson Reuters. No claim to original U.S. Government Works. 8

Arnold v. Gonzalez, Not Reported in S.W.3d (2015)

33.013(b)(1) simply does not make percentage of responsibility, especially in those instances the application of joint and several where, as here, the defendant is precluded from seeking liability dependent upon whether or contribution from the responsible third party”). not another person, such as a responsible third party, can or will Therefore, here although it appears that AW cannot or ultimately pay for its share of will not ultimately pay for its share of its responsibility responsibility; the only requirement due to the TWCA’s immunity clause, under section is that the liable defendant meets 13.013(b), it does not matter. Arnold is still jointly and the threshold percentage of fault. severally liable because the jury attributed sixty- five percent of the liability to him; thus, the threshold 298 S.W.3d 216, 233 (Tex.App.—San Antonio 2009, pet. percentage of fault has been met. We overrule Arnold’s denied). In addition, the court explained that under the final issue. plain language of the statute, “If the threshold is met, a liable defendant bears not only its proportionate responsibility under section 33.013(a), but also assumes joint and several liability for all recoverable damages under section 33.013(b)(1).” Id. We find the Bay Rock VI. CONCLUSION court’s interpretation of 33.013(b) persuasive, and agree *12 We affirm the trial court’s judgment. that pursuant to section 33.013(b), so long as the threshold of more than fifty percent liability is met, then the defendant may be held jointly and severally liable, regardless of whether the responsible third party can or All Citations will pay for its share of responsibility. See id. at 232–233 (disagreeing with defendant’s argument “that it is unfair Not Reported in S.W.3d, 2015 WL 5109757 for it to be held jointly and severally liable for all damages when another person has been assigned a

Footnotes 1 Gonzalez also sued L & M Companies, claiming it too occupied the premises where Gonzalez had been injured. L & M had leased a portion of the facility from Arnold. 2 It was Arnold’s burden at trial to prove his affirmative defense of the TWCA’s exclusive remedy provision. Therefore, our analysis is the same whether Arnold claims to be AW’s employee or agent. 3 In his brief, Arnold does not argue that he acted in furtherance of AW’s interests when he designed the layout of the warehouse. Instead, he claims that it was undisputed that he was AW’s employee or agent as a matter of law. In his reply brief, Arnold states that it was undisputed that he undertook all actions regarding the warehouse in his capacity as AW’s agent or employee because that is the only evidence that was presented. We disagree because whether he was acting in furtherance of his duties as an AW employee is a question of fact for the jury to have determined. Thus, they were free to believe or disbelieve Arnold that he set up the warehouse in furtherance of AW’s interests and not because he planned on leasing the premises to other companies such as L & M. See Arbelaez v. Just Brakes Corp., 149 S.W.3d 717, 720 (Tex.App.—Austin 2004, no pet) (citing GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 618 (Tex.1999); Tex. Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 515 (Tex.1995)). Moreover, there was evidence that Arnold designed the configuration of the complained-of mechanisms and that those machines, which included a processing line conveyor, were fixed in place in the warehouse for years and attached to mechanized pieces of equipment that were affixed to the walls of the warehouse and bolted to the floors— acts that a jury could have believed were undertaken in order to rent the facility to other entities. 4 Arnold also argues that by holding him responsible for Gonzalez’s injury, the trial court, in essence, applied the dual capacity doctrine, which has not been adopted by the Texas Supreme Court and has been rejected by some Texas courts of appeals. The dual capacity doctrine provides that although an employer is usually shielded from tort liability by the exclusive remedy principle of the TWCA, the employer may become liable to his own employee, who received workers’ compensation benefits, if the employer occupies a second capacity that generates obligations unrelated to those flowing from its primary capacity as an employer. Payne v. Galen Hosp. Corp., 28 S.W.3d 15, 20 (Tex.2000). The dual capacity doctrine is applicable in cases where the employer/defendant is entitled to claim immunity from suit under the TWCA. See id.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 9 Arnold v. Gonzalez, Not Reported in S.W.3d (2015)

We disagree with Arnold that this case implicates the dual capacity doctrine because Arnold did not show that he is entitled to immunity under the TWCA as explained above. It was not conclusively established that Arnold was acting as an ‘agent, servant, or employee’ within the meaning of the TWCA for whose conduct AW would have been legally responsible under the doctrine of respondeat superior. See Burkett v. Welborn, 42 S.W.3d 282, 288–89 (Tex.App.—Texarkana 2001, no pet.) (concluding that coemployee who owned premises was not entitled to the workers’ compensation defense because there was no evidence that the employer could be held vicariously liable for the co-employee’s liability as a premises owner to an invitee). Thus, the dual capacity doctrine is inapplicable to the facts of this case. 5 Arnold testified that he owned the premises where Gonzalez was injured and that AW was his lessee. Arnold makes no argument on appeal that AW was an independent contractor and points to no evidence in the record supporting such a conclusion. 6 See Schievink v. Wendylou Ranch, Inc., 227 S.W.3d 862, 867 (Tex.App.— Eastland 2007, pet. denied) (“One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.”). 7 Earning capacity has been defined as the “ability and fitness to work in gainful employment for any type of remuneration, including salary, commissions, and other benefits, whether or not the person is actually employed.” Strauss v. Cont’l Airlines, Inc., 67 S.W.3d 428, 435 (Tex.App.—Houston [14th Dist.] 2002, no pet.).

8 Gonzalez testified that he was forty-nine at the time of the accident.

9 The trial court admitted Gonzalez’s medical records, and Gonzalez testified that he had five surgeries after the accident and that amputation had been discussed. 10 Arnold complains that these employment records are mostly illegible. However, our appellate record consists of copies. The original employment records that were admitted at trial have not been included in the appellate record. We are able to read some of the copies of Gonzalez’s employment records included in the appellate record. 11 Moreover, there was conflicting evidence regarding whether Gonzalez is able to perform any type of work, including less strenuous work. 12 Gonzalez presented evidence to show that he is unable to perform other less strenuous jobs, and Arnold points to no evidence in the record showing that someone who can sweep and who can lift a screen door is necessarily able to perform other more strenuous jobs. 13 The video is not included in the appellate record, and Arnold does not complain of its omission. The record contains a description of Gonzalez’s acts in the video, however.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 10

THE THIRTEENTH COURT OF APPEALS

13-13-00440-CV

DANIEL E. ARNOLD v. GERARDO GONZALEZ

On Appeal from the 398th District Court of Hidalgo County, Texas Trial Cause No. C-1442-11-I

AMENDED CORRECTED JUDGMENT

THE THIRTEENTH COURT OF APPEALS, having considered this cause on appeal, concludes that the judgment of the trial court should be AFFIRMED. The Court orders the judgment of the trial court AFFIRMED. Costs of the appeal are adjudged against the appellant, DANIEL E. ARNOLD, and ARCH INSURANCE COMPANY, as surety on the supersedeas bond, and judgment is rendered against the appellant, DANIEL E. ARNOLD, and ARCH INSURANCE COMPANY, as surety on the supersedeas bond.

We further order this decision certified below for observance. August 28, 2015

APPENDIX Tab 4

LABOR CODE CHAPTER 408. WORKERS' COMPENSATION BENEFITS Page 1 of 1

LABOR CODE

TITLE 5. WORKERS' COMPENSATION

SUBTITLE A. TEXAS WORKERS' COMPENSATION ACT

CHAPTER 408. WORKERS' COMPENSATION BENEFITS

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 408.001. EXCLUSIVE REMEDY; EXEMPLARY DAMAGES. (a) 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. (b) This section does not prohibit the recovery of exemplary damages by the surviving spouse or heirs of the body of a deceased employee whose death was caused by an intentional act or omission of the employer or by the employer's gross negligence. (c) In this section, "gross negligence" has the meaning assigned by Section 41.001, Civil Practice and Remedies Code. (d) A determination under Section 406.032, 409.002, or 409.004 that a work-related injury is noncompensable does not adversely affect the exclusive remedy provisions under Subsection (a).

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993. Amended by: Acts 2005, 79th Leg., Ch. 265, Sec. 3.077, eff. September 1, 2005.

http://www.statutes.legis.state.tx.us/Docs/LA/htm/LA.408.htm 1/20/2014

APPENDIX Tab 5

• • CAUSE NO. C-1442-11-1 • GERARDO GONZALEZ, § Plaintiff § § By-Hqg..,..l.C::,L[::~,De 1 vs. § 398 b JUDICIAL DIST § § DANIEL E. ARNOLD, § Defendants § IDDALGO COUNTY, TEXAS

DEFENDANT'S REQUESTED QUESTION REGARDING PREMISES LIABILITY BASED ON NEGLIGENT ACTIVITY OR PREMISES DEFECT- RIGHT OF CONTROL

TO THE HONORABLE JUDGE OF SAID COURT:

Defendant, Daniel Arnold, individually, requests that the following be included in the Court's Charge to the Jury:

QUESTION_ __

Did Daniel E. Arnold, Individually, exercise or retain some control over the manner in which the injury causing activity was performed, other than the right to order the work to start or stop or to inspect progress or receive reports?

Answer "Yes" or "No."

Answer: _ _ _ __

Authority: Premises Liability Based on Negligent Activity or Premises Defect- Right of Control PJC 66.3 /

,. 121

• • • Respectfully submitted,

RAY, VALDEZ, McCHRISTIAN & JEANS, P.C. 1250N.E. Loop410, Ste. 700 San Antonio, Texas 78209 Phone: 210-341-3554 Fax: 210-341-3557

ATTORNEYS FOR DEFENDANT DANIEL E. ARNOLD, INDIVIDUALLY

CERTIFICATE OF SERVICE

The foregoing has been served ~n counsel of r~cord pursuant to Rule 21a, Texas Rules of Civil Procedure on this / tj _,. day of ~ 2013.

• • • The foregoing having been presented to me before the Court's presentation of its Charge

of the Court to the jury, is hereby:

GRANTED:

DENIED: _ _.K_'---=---- MODIFIED:

SIGNED THIS CJ ,s= DAYOF ~ ,2013

ct~)~ ~· Judge Presiding

,, 12 3