Opinion
EP-02-CA-509-DB
August 5, 2003
MEMORANDUM OPINION AND ORDER
On this day, the Court considered a Motion for Summary Judgment filed by Defendants Stone Container Corporation ("Stone Container") and Raul Pinon (collectively "Defendants") in the above-captioned cause on March 13, 2003. Plaintiff Mauro Vargas ("Vargas") filed a Response on April 4, 2003. The Court is of the opinion that the Motion should be granted for the reasons stated below.
BACKGROUND
Vargas was hired as an employee of D.M. Dickason ("Dickason"), a temporary staffing agency in May, 2002. Dickason provided temporary workers to its client company, Stone Container. Dickason maintained workers' compensation insurance coverage for its employees through Zurich American Insurance Company, and Stone Container was listed as an additional insured. In August 2002, Dickason sent Vargas to Stone Container's facility at 7350 Stiles Road in El Paso, Texas for a work assignment. On September 28, 2002, Vargas sustained serious injuries at the facility when he fell thirteen feet to the floor from a forklift as he tried to secure rolls of paper. At the time of his injury, the summary judgment evidence indicates that Rafael Gomez, a Stone Container employee, was Vargas' supervisor. Vargas filed a workers' compensation claim against Dickason, from whom he has received benefits. Vargas subsequently sued Stone Container for negligence to recover damages for his injuries, alleging, inter alia, that the company failed to provide Plaintiff with a safe place to work. Defendant's instant Motion followed.
SUMMARY JUDGMENT STANDARD
Summary judgment should be granted only where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). The party that moves for summary judgment bears the initial burden of identifying those portions of the pleadings and discovery on file, together with any affidavit s, which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). A defendant seeking summary judgment must plead and prove each element of his affirmative defense as a matter of law. Chaplin v. NationsCredit Corp., 307 F.3d 368, 372 (5th Cir. 2002). "If the moving party fails to meet this burden, the motion must be denied, regardless of the nonmovant's response." Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995). If the movant does meet t his burden, however, the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial. See, e.g., Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. "If the non-movant fails to meet this burden, then summary judgment is appropriate." Tubacex, 45 F.3d at 954.
When making a determination under Rule 56, factual questions and inferences are viewed in a light most favorable to the nonmovant. See Lemelle v. Universal Mfg. Corp., 18 F.3d 1268, 1272 (5th Cir. 1994). The party opposing a motion supported by evidence cannot discharge his burden by alleging mere legal conclusions. See Anderson v. Liberty Lobby, 477 U.S. 242, 248-49, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). Instead, the party must present affirmative evidence in order to defeat a properly supported motion for summary judgment. See id.
DISCUSSION
Stone Container moves for summary judgment on the grounds that Vargas was working as Stone Container's "borrowed servant" at the time of the accident; therefore, Stone Container was entitled to protection under the exclusive remedy provision of the Texas Worker's Compensation Act, which bars Vargas' negligence claim against the company. Vargas contends that there is a fact question as to whether Stone Container retained the right of control over him such that he was Stone Container's borrowed servant. The Court agrees with Stone Container t hat the summary judgment evidence establishes that there is no triable issue of fact on the company's affirmative defense of borrowed servant status.Texas courts have recognized the rule that a general employee of one employer may become the borrowed servant of another. See Sparger v. Worley Hosp., 547 S.W.2d 582, 583 (Tex. 1977); Chapa v. Koch Ref. Co., 985 S.W.2d 158, 160 (Tex.App.-Corpus Christi 1998), rev'd on other grounds, 11 S.W.3d 153 (Tex. 1999). Under the borrowed servant doctrine, a person who is in the general employment of one employer, but is placed under the control of another employer with regard to the manner and details of the employee's work, becomes a borrowed servant of the latter. Carr v. Carroll Co., 646 S.W.2d 561, 562 (Tex.App.-Dallas 1982, writ ref'd n.r.e.); Producers Chem. Co. v. McKay, 366 S.W.2d 220, 225 (Tex. 1963). Therefore, the employer who has the right of control over the manner and details of the employee's work at the time of such employee's injury is immune from common law liability pursuant to the exclusive remedy provision of the Texas Workers' Compensation Act. Richmond v. L.D. Brinkman Co. (Texas), Inc., 36 S.W.3d 903, 905 (Tex. App. — Dallas 2001, pet. denied).
In Texas, an employee is covered by worker's compensation insurance if his employer possesses an approved insurance policy covering the payment of worker's compensation benefits for its employees. TEX. LAB. CODE ANN. § 401.011 (Vernon Supp. 2001). Section 408.001 of the Texas Workers' Compensation Act provides that recovery of workers' compensation benefits is the exclusive remedy of an injured employee covered by workers' compensation insurance against an employer. TEX. LAB. CODE ANN. § 408.001 (Vernon 1996).
Generally, the right of control and direction is a question of contract between the general employer and special employer. Producers Chem, 366 S.W.2d at 226. When no written contract exists between the parties as to the right of control, it must necessarily be determined from the facts and circumstances of the project. Id. Control may also be inferred "from such facts and circumstances as the nature of the general project, the nature of the work to be performed by the machinery and employees furnished, length of the special employment, the type of machinery furnished, acts representing an exercise of actual control, the right to substitute another operator of the machine, etc." Id.; Carr, 646 S.W.2d at 565. Nonetheless, borrowed servant status depends on the circumstances of the particular action causing the injury. Marshall v. Toys R Us Nytex, 825 S.W.2d 193, 196 (Tex.App.-Houston [14th Dist.] 1992, writ denied) (citing Denison v. Haeber Roofing Co., 767 S.W.2d 862 (Tex.App. — Corpus Christi 1989, no writ); see also Sparger v. Worley Hosp., Inc., 547 S.W.2d 582 (Tex. 1977) (remarking that under the borrowed servant doctrine the essential inquiry is whether or not a party had the right to control another in the details "of the specific act raising the issue of liability.") (citing J. A. Robinson Sons, Inc. v. Wigart, 431 S.W.2d 327, 330 (Tex. 1968); Hilgenberg v. Elam, 145 Tex. 437, 198 S.W.2d 94, 96 (Tex. 1946) (holding that an employee may become another's borrowed servant as to some acts but not as to others).
The summary judgment evidence does not reveal the existence of a contract between Stone Container and Dickason as to the right of control. Therefore, the Court must look to the facts and circumstances of the project at the time of Vargas' injury. According to an affidavit filed by Rafael Gomez, he summoned Vargas and several other temporary workers to assist him with a clean up operation. He directed Vargas to get into a cage-like device so that he could be lifted by a forklift that was being operated by another employee. Gomez states that he was the one in charge of the clean up crew, as well as all of the temporary workers who had been supplied to Stone Container by Dickason. Stone Container also submitted an affidavit from Raul Pinon, plant manager for Stone Container, who states that Vargas was under the control and direction of Gomez during the time that Vargas was performing clean up work on September 28, 2002. Therefore, according to Stone Container, it has established its affirmative defense as a matter of law by showing that it was exercising the right of control over the manner and details of Vargas' work at the facility at t he time of his injury.
In response, Vargas submitted an affidavit in which he states that Pinon instructed him to step into the cage on the forklift. The affidavit provides, "At the time of my incident, Raul Pinon went outside with Maria Pando and I. Raul Pinon told Maria Pando to lift the cage with the forklift. Raul Pinon told me to get on the cage and to tape up some cardboard. That led to my injury." Vargas' affidavit makes no mention of Rafael Gomez. Furthermore, Vargas contends that Dickason, not Stone Container, provided him with instructions at the job site. The affidavit provides, in relevant part,
On or about August 2002, D.M. Dickason instructed me to go to Stone Container. D.M. Dickason told me where to go, even gave me the directions. D.M. Dickason assigned me to go paint safety hazard stripes on the floor at Stone Container. I did the work that D.M. Dickason assigned me. While at Stone Container, I did the job that D.M. Dickason sent me to do. I worked the hours that D.M. Dickason sent me to work . . . I was given no tools by Stone Container, nor was I given any written instructions by Stone Container.
Vargas argues that his affidavit raises a factual dispute over Stone Container's borrowed servant affirmative defense. The Court disagrees. First of all, whether the individual who ordered Vargas to step on the cage was Pinon or Gomez, it makes no difference for purposes of establishing the right of control. Even taking as true Vargas' factual allegation that Pinon instructed him to step onto the cage, the evidence nonetheless establishes that an employee of Stone Container, not Dickason, was directing the details of Vargas' work at the time of his injury. Vargas' affidavit does not show that any Dickason supervisors were on the scene at the time of the accident. Furthermore, the remaining portions of Vargas' affidavit do not raise a fact question on the issue of right of control of the acts taken at the time of the injury. Vargas' averments that Dickason was responsible for providing him with tools, training, and specific instruct ions while at Stone Container do not speak to the circumstances of the particular actions causing his injury on September 28, 2002. Although Vargas may have been acting in the general employment of Dickason, he was certainly under the control and supervision of Stone Container when he climbed into the forklift cage. Therefore, the Court concludes that Vargas was Stone Container's borrowed servant, and is thereby immune from common law liability pursuant to the exclusive remedy provision of the Texas Workers' Compensation Act. Accordingly, the Court is of the opinion the Stone Container's Motion for Summary Judgment should be granted and that the following orders should enter:
IT IS HEREBY ORDERED that Defendants Stone Container Corporation and Raul Pinon's "Motion for Summary Judgment" is GRANTED.
IT IS FURTHER ORDERED that all other pending motions, if any, are DENIED AS MOOT.