We will therefore not draw Espinoza's suggested distinction between "policy" and "benefits." Espinoza relies on Morales v. Martin Resources, Inc., in which a Texas Court of Appeals reversed a grant of summary judgment in favor of an employer because the employer failed to provide evidence that it covered its employees under a Workers' Compensation policy. 183 S.W.3d 469, 473 (Tex.App. — Eastland 2005, no pet.). In that case, a temporary employee sued his staffing company and his temporary employer, Martin Resources, Inc., for negligence, after injuring his hand.
See TEX. LABOR CODE ANN. § 408.001(a).Funes v. Eldridge Elee. Co., 270 S.W.3d 666, 668 (Tex.App.-San Antonio 2008, no pet.); Morales v. Martin Res., Inc., 183 S.W.3d 469, 471 (Tex.App.-Eastland 2005, no pet.); Western Steel Co., Inc., 169 S.W.3d at 349.See Morales, 183 S.W.3d at 471.
(" Because an employer's status as a subscriber to workers' compensation is an affirmative defense, the duty is on the employer/defendant-not the employee/plaintiff-to plead and prove such facts." ); Morales v. Martin Resources, Inc., 183 S.W.3d 469, 471 (Tex.App.Eastland 2005, no pet.); Pierce v. Holiday, 155 S.W.3d 676, 678 (Tex.App.Texarkana 2005, no pet.); Southeast Texas Ind. v. Helmerich & Payne, 70 S.W.3d 181 (Tex.App.-San Antonio 2001, no pet.); Quanaim v. Frasco Restaurant & Catering, 17 S.W.3d 30, 43-44 (Tex.App.-Houston [14th Dist.] 2000, pet. denied); Brown v. Hopkins, 921 S.W.2d 306, 318 (Tex.App.Corpus Christi 1996, no writ); Long v. Turner, 871 S.W.2d 220, 225 (Tex.App.-El Paso 1993, writ denied). To establish this defense, a defendant must show: (1) it was the plaintiff's employer within the meaning of the TWCA; and (2) the defendant was covered by a workers' compensation insurance policy at the time of the accident.
When name confusion muddies the waters in this fashion, this may give rise to factual questions that are fit for resolution by juries rather than appellate jurists. Cf. Morales v. Martin Res., Inc., 183 S.W.3d 469, 473 (Tex. App.-Eastland 2005, no pet.) (op. on reh'g) (holding that name discrepancies created fact issue as to who held a workers' compensation policy; Martin Resources, Inc. of Odessa asserted that it was covered, but the policy was issued to Martin Resources Management Corporation, and
In support of his argument, Bertoldo points to an opinion from the Eastland court of appeals. See Morales v. Martin Res., Inc., 183 S.W.3d 469, 472 (Tex. App.- Eastland 2005, no pet.). In Morales, the injured worker was an employee of Select Professional Staffing and was at the same time placed as a temporary employee with Martin Resources, Inc., located in Odessa, Texas.
Reveles v. OEP Holdings, LLC , 574 S.W.3d 34, 37 (Tex.App.--El Paso 2018, no pet.) ("The exclusive remedy provision is an affirmative defense that protects employers from certain common-law claims of their employees including negligence claims."); Hand & Wrist Ctr. of Houston, P.A. v. SGS Control Services, Inc. , 409 S.W.3d 743, 753 (Tex.App.--Houston [1st Dist.] 2013, no pet.) ; Wesby v. Act Pipe & Supply, Inc. , 199 S.W.3d 614, 617 (Tex.App.--Dallas 2006, no pet.) ; Morales v. Martin Resources, Inc. , 183 S.W.3d 469, 471 (Tex.App.--Eastland 2005, no pet.) ; Pierce v. Holiday , 155 S.W.3d 676, 678 (Tex.App.--Texarkana 2005, no pet.) ; see alsoPort Elevator-Brownsville v. Casados , 358 S.W.3d 238, 240 (Tex. 2012) ("Port Elevator raised the affirmative defense that workers' compensation was the plaintiffs' exclusive remedy."). Affirmative defenses should be raised through a motion for summary judgment or proven at trial.
An employee is covered by workers' compensation insurance if his employer has an approved insurance policy covering the payment of workers' compensation benefits to its employees. Morales v. Martin Resources, Inc., 183 S.W.3d 469, 471 (Tex.App.–Eastland 2005, no pet.) (citing Tex. Lab.Code Ann. § 401.0011(44)(A) (defining “workers' compensation insurance coverage” as “an approved insurance policy to secure the payment of compensation”)). An employee may also be covered by workers' compensation insurance—and therefore subject to the exclusive remedy provision of the TWCA—if he enters employment with a professional employment organization that has elected to obtain workers' compensation insurance coverage and has a professional services agreement with a client for whom the employee actually works.
Moreover, the exclusive remedy provision of the TWCA is an affirmative defense. Morales v. Martin Res., Inc., 183 S.W.3d 469, 471 (Tex. App.-Eastland 2005, no pet.). Calhoun argues on appeal that Appellee did not prove in the trial court that it was his employer.
The exclusive remedies provision of the Texas Workers' Compensation Act ("TWCA") is an affirmative defense. Funes v. Eldridge Elec. Co., 270 S.W.3d 666, 668 (Tex.App.-San Antonio 2008, no pet.); Morales v. Martin Res., Inc., 183 S.W.3d 469, 471 (Tex.App.-Eastland 2005, no pet.). An affirmative defense should be raised through a motion for summary judgment or proven at trial.
There are no exclusions for borrowed servants. Hodges argues that TST's evidence is insufficient to establish that he was covered, and he points to this court's decision in Morales v. Martin Resources, Inc., 183 S.W.3d 469 (Tex.App.-Eastland 2005, no pet.). In that case, we recognized that an employee is covered by workers' compensation insurance if his employer possesses an approved insurance policy covering the payment of workers' compensation benefits to its employees.