Robert Stevenson v. Waste Management of Texas, Inc. and Rigoberto Zelaya , 572 S.W.3d 707 ( 2019 )


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  • Reversed and Remanded and Opinion filed February 21, 2019.
    In The
    Fourteenth Court of Appeals
    NO. 14-17-00433-CV
    ROBERT STEVENSON, Appellant
    V.
    WASTE MANAGEMENT OF TEXAS, INC. AND RIGOBERTO ZELAYA,
    Appellees
    On Appeal from the 113th District Court
    Harris County, Texas
    Trial Court Cause No. 2014-60538
    OPINION
    In this personal-injury case, a worker hired by a temporary-employment supplier
    suffered serious injuries while performing tasks for one of the supplier’s clients. The trial
    court granted summary judgment dismissing the worker’s negligence claim against the
    client on the ground that the Workers’ Compensation Act’s exclusive-remedy provision
    bars the worker’s negligence claims. Concluding that the summary-judgment evidence
    raises a genuine issue of material fact as to whether the worker served as the client’s
    “employee” under this statute, we reverse and remand.
    I. FACTUAL AND PROCEDURAL BACKGROUND
    In May 2014, appellant/plaintiff Robert Stevenson was working as a helper
    on a garbage truck when appellee/defendant Rigoberto Zelaya, the driver of the
    truck, backed the truck up and drove it over Stevenson’s right foot and leg. At the
    time of the accident Zelaya worked as an employee of appellee/defendant Waste
    Management of Texas, Inc., and Stevenson worked for non-party Taylor Smith
    Consulting, LLC, a temporary labor supplier.          Taylor Smith had assigned
    Stevenson to work at Waste Management on a temporary basis under the terms of
    a “Master Agreement.”      According to Stevenson, consistent with the Master
    Agreement, he served as an independent contractor — not as an employee — of
    Waste Management.
    Stevenson sued Waste Management and Zelaya asserting that Zelaya was
    negligent, among other things, in failing to keep a proper lookout for Stevenson’s
    safety, failing to take proper action to avoid a collision with Stevenson, backing up
    the truck when it was unsafe to do so, and failing to maintain proper control of the
    vehicle.   Stevenson alleged that Zelaya acted in the course and scope of his
    employment with Waste Management so that Waste Management stood liable for
    Zelaya’s negligence under the doctrine of respondeat superior. Stevenson also
    claimed that Waste Management negligently hired, trained, supervised, and
    retained Zelaya as its employee.
    Waste Management and Zelaya (collectively the “Waste Management
    Parties”) filed a motion for traditional summary judgment on the sole ground that
    the exclusive-remedy provision of the Texas Workers’ Compensation Act (the
    “Act”) bars Stevenson’s claims against them because at the time of Stevenson’s
    injury he was an employee of Waste Management covered by Waste
    Management’s workers’ compensation insurance. Stevenson does not dispute that
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    Waste Management had workers’ compensation insurance covering its employees;
    he asserts a genuine fact issue exists as to whether Stevenson was Waste
    Management’s employee at the time of the accident. In his summary-judgment
    motion Stevenson asserted there is no evidence that he was an employee of Waste
    Management at the time of the accident and therefore there is no evidence
    supporting the Waste Management Parties’ affirmative defense based on the Act’s
    exclusive-remedy provision.
    The trial court granted the Waste Management Parties’ summary-judgment
    motion, denied Stevenson’s summary-judgment motion, and rendered a final
    judgment dismissing all of Stevenson’s claims.
    II. ISSUES AND ANALYSIS
    On appeal, Stevenson asserts that the trial court erred in granting the Waste
    Management Parties’ summary-judgment motion and determining as a matter of
    law that Stevenson was an employee of Waste Management at the time of the
    accident.   Under three issues, Stevenson argues (1) the trial court erred in
    disregarding the Master Agreement and determining as a matter of law that Waste
    Management was his employer; (2) the trial court erred in determining there is no
    material fact question as to whether Stevenson was Waste Management’s
    employee; and (3) the trial court erred in determining that there is no material fact
    question as to whether Waste Management actually exercised control over the
    details of Stevenson’s work at the time of the accident. Stevenson does not
    challenge the trial court’s denial of his summary-judgment motion.
    In a traditional motion for summary judgment, if the movants’ motion and
    summary-judgment evidence facially establish its right to judgment as a matter of
    law, the burden shifts to the nonmovant to raise a genuine, material fact issue
    sufficient to defeat summary judgment. M.D. Anderson Hosp. & Tumor Inst. v.
    3
    Willrich, 
    28 S.W.3d 22
    , 23 (Tex. 2000). In our de novo review of the trial court’s
    summary judgment, we consider all the evidence in the light most favorable to the
    nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors
    could, and disregarding contrary evidence unless reasonable jurors could not.
    Mack Trucks, Inc. v. Tamez, 
    206 S.W.3d 572
    , 582 (Tex. 2006). The evidence
    raises a genuine issue of fact if reasonable and fair-minded jurors could differ in
    their conclusions in light of all of the summary-judgment evidence. Goodyear Tire
    & Rubber Co. v. Mayes, 
    236 S.W.3d 754
    , 755 (Tex. 2007).
    For this court to affirm the trial court’s judgment, the summary-judgment
    evidence conclusively must show that Stevenson was Waste Management’s
    employee at the time of the accident. See Raynor v. Moores Mach. Shop, LLC, 
    359 S.W.3d 905
    , 911 (Tex. App.—Houston [14th Dist.] 2012, no pet.). The Waste
    Management Parties assert that the summary-judgment evidence conclusively
    establishes Stevenson’s status as an employee, and Stevenson argues that the
    summary-judgment evidence raises a genuine issue of material fact on this point.
    A.    The Act’s Exclusive-Remedy Provision
    “Recovery of workers’ compensation benefits is the exclusive remedy of an
    employee covered by workers’ compensation insurance coverage . . . against the
    employer or an agent or employee of the employer for . . . a work-related injury
    sustained by the employee.” Tex. Lab. Code Ann. § 408.001(a) (West, Westlaw
    through 2017 1st C.S.). Presuming for the sake of argument that Stevenson was
    Taylor Smith’s employee at the time of the accident, this status would not preclude
    Stevenson from also being Waste Management’s employee at the time of the
    accident, and thus subject to the Act’s exclusive-remedy provision as to Waste
    Management. See Garza v. Exel Logistics, Inc., 
    161 S.W.3d 473
    , 475 (Tex. 2005).
    Under the Act, unless otherwise specified, “employer” means “a person who
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    makes a contract of hire, employs one or more employees, and has workers’
    compensation insurance coverage.” Tex. Lab. Code Ann. § 401.011(18) (West,
    Westlaw through 2017 1st C.S.).         In the Act, the Legislature has defined
    “employee” as “each person in the service of another under a contract of hire,
    whether express or implied, or oral or written.” 
    Id. § 401.012(a)
    (West, Westlaw
    through 2017 1st C.S.).
    B.    The Garza Case
    In the Garza case, the Supreme Court of Texas addressed whether an
    employee of a temporary-employment agency also served as an employee of the
    agency’s client at the time of the accident for the purposes of the Act’s exclusive-
    remedy provision. See 
    id. at 474–77.
    The contract between the agency and the
    client did not address whether employees furnished to the client would be the
    client’s employees. See 
    id. at 474–77,
    480–81. In this context, the Garza court
    stated as follows:
    This undisputed evidence establishes that at the time Garza was
    injured, he was working on [the client’s] premises, in the furtherance
    of [the clients’] day-to-day business, and the details of his work that
    caused his injury were specifically directed by [the client].
    Accordingly, for workers’ compensation purposes, Garza was [a
    client] employee within the meaning of section 401.012 . . . at the
    time he was injured.
    
    Id. at 477.
    The Garza court held that undisputed evidence of the following facts at
    the time of the accident proved Garza was an employee of the client: (1) Garza
    was working on the client’s premises; (2) Garza was working in furtherance of the
    client’s day-to-day business; and (3) the client specifically directed the details of
    Garza’s work that caused his injury. In today’s case, the Master Agreement
    addresses whether the employees Taylor Smith furnished to Waste Management
    are Waste Management employees, and at the time of the accident, Stevenson was
    5
    not working on Waste Management’s premises. Thus, today’s case does not fall
    within the scope of the Garza holding. See 
    id. at 474–77,
    480–81.
    Nonetheless, the Garza court instructs that, in determining if a general
    employee of a temporary-employment agency is also an employee of a client
    company for the purposes of the Act, courts should consider “traditional indicia.”
    
    Id. at 477.
    Using these markers, for Stevenson to have been Waste Management’s
    employee at the time of the accident, Waste Management must have had the right
    to control the progress, details, and methods of operation of Stevenson’s work. See
    City of Bellaire v. Johnson, 
    400 S.W.3d 922
    , 923–24 (Tex. 2013) (per curiam);
    Limestone Prods. Distrib., Inc. v. McNamara, 
    71 S.W.3d 308
    , 312 (Tex. 2002)
    (per curiam).
    C.    The Love Case
    If no written contract addresses who has this right to control, we may look to
    evidence as to the actual exercise of control to determine who has the right to
    control. See Newspapers, Inc. v. Love, 
    380 S.W.2d 582
    , 590 (Tex. 1964). If a
    written contract addresses who has this right of control, the issue arises as to how
    much deference we should give to the contract. In Love, the Supreme Court of
    Texas concluded that a written contract expressly providing that a person is an
    independent contractor does not always conclusively disprove that the person is an
    employee. See 
    id. at 591–92.
    According to the Love court, if a written contract
    expressly provides that a person is an independent contractor and does not vest the
    principal with the right to control the details of the person’s work, we are to give
    the contract effect unless (1) the contract was a subterfuge from the beginning; (2)
    the parties modified the contract by a subsequent express or implied agreement; or
    (3) the principal’s exercise of control over the details of the person’s work was “so
    persistent” and the acquiescence in that exercise of control was “so pronounced as
    6
    to raise an inference that at the time of the [accident], the parties by implied
    consent and acquiescence had agreed that the principal might have the right to
    control the details of the work” (hereinafter the “Love Legal Standard”). 
    Id. at 590,
    592; see Weidner v. Sanchez, 
    14 S.W.3d 353
    , 373–74 (Tex. App.—Houston [14th
    Dist.] 2000, no pet.). Under the Love Legal Standard, a written contract in which
    the parties clearly say that one is an independent contractor is not always given
    conclusive effect. Even so, under this standard, courts still give such contracts
    some deference, and treat the person as an independent contractor absent proof of
    one of the exceptions to enforcement of the contract. 
    Love, 380 S.W.2d at 591
    –92;
    
    Weidner, 14 S.W.3d at 373
    –74.
    In Exxon Corp. v. Perez, the trial court refused to submit a question to the
    jury as to whether the plaintiff was the defendant’s borrowed employee, in support
    of the defendant’s affirmative defense that the Act’s exclusive-remedy provision
    barred the plaintiff’s negligence claim against the defendant. See Exxon Corp. v.
    Perez, 
    842 S.W.2d 629
    , 630 (Tex. 1992) (per curiam). The court of appeals held
    that the trial court did not err in this ruling because the contract between the
    defendant and the plaintiff’s employer conclusively established that the plaintiff
    was not the defendant’s borrowed employee. See 
    id. The Supreme
    Court of Texas
    issued a per curiam opinion in Perez, holding that the trial court erred because the
    trial evidence raised a fact issue as to whether the plaintiff was the defendant’s
    borrowed employee. See 
    id. at 630–31.
    The Perez court cited the Love case
    favorably and did not purport to modify, abrogate, or disapprove of the Love Legal
    Standard. See 
    id. We construe
    the Perez opinion as concluding that the trial
    evidence raised a fact issue under the Love Legal Standard, without changing the
    Love Legal Standard. See Alice Leasing Corp. v. Castillo, 
    53 S.W.3d 433
    , 440–41
    (Tex. App.—San Antonio 2001, pet. denied). The Waste Management Parties cite
    7
    Perez for the proposition that a contract addressing the right to control a worker is
    not controlling. Under the Love Legal Standard, if the evidence proves one of the
    exceptions to enforcement of the contract, then the terms of the contract are not
    controlling. See 
    Love, 380 S.W.2d at 591
    –92. Thus, the Waste Management
    Parties are correct that a contract addressing the right to control a worker is not
    necessarily determinative as to whether the worker is an employee. See 
    id. D. The
    Summary-Judgment Evidence
    The summary-judgment evidence includes the Master Agreement, which
    purports to bind Taylor Smith and Waste Management, and provides as follows:
    [Taylor Smith] Responsibilities: [Taylor Smith] is in the business of
    supplying trained and qualified temporary labor (“Personnel”) to
    perform work as requested by Waste Management. [Taylor Smith] is
    solely responsible for performing all hiring, firing, discipline,
    training[,] and other responsibilities necessary to discharge its legal
    obligations as the employer of the Personnel supplied to Waste
    Management. [Taylor Smith] and Personnel shall be independent
    contractors in respect of Waste Management and shall not be
    employees of Waste Management. Furthermore, [Taylor Smith] and
    Personnel understand that they have no authority to make or imply
    any commitments which are binding upon Waste Management.
    [Taylor Smith] is solely responsible for all payments whatsoever
    required to be made to or in respect of its Personnel, including,
    without limitation, all wages, salaries and benefits (including health
    insurance and/or medical payments), all federal, state and local
    payroll taxes, and all Workers’ Compensation insurance coverage and
    payments. Upon demand, [Taylor Smith] shall provide [Waste
    Management] with proof that such payments have been made. For any
    lawful reason (including, without limitation, an adverse result on drug
    and background screening) and without disclosing such reason to
    [Taylor Smith], Waste Management may request that [Taylor Smith]
    terminate Personnel’s [sic] engagement at Waste Management
    effective immediately. Waste Management shall reimburse [Taylor
    Smith] for services performed and expenses incurred in accordance
    herewith up to the date of such termination notice.
    8
    ...
    [Taylor Smith] is obligated to ensure that Personnel supplied to Waste
    Management comply with all of [Waste Management’s] health and
    safety requirements and are fully qualified and trained for the jobs
    they are being supplied to perform and that they have been given
    safety training that meets or exceeds the training Waste Management
    provides to its employees for the same or similar jobs.
    ...
    This Agreement . . . constitutes the entire agreement and
    understanding between the parties and supersedes any prior agreement
    and understanding whether written or oral, relating to the subject
    matter of this Agreement except with respect to any effective
    nondisclosure agreement between the parties. This Agreement may
    be supplemented or amended by the parties only if done in writing and
    signed by both parties.1
    The Waste Management Parties assert that the Master Agreement does not
    address whether Waste Management has the right to control the details and
    methods of operation of Stevenson’s work. We disagree. Though the contract
    does not contain a statement that Waste Management lacks the right to control the
    details and methods of operation of Stevenson’s work, the parties unambiguously
    agreed that the personnel Taylor Smith supplied would serve as independent
    contractors in respect of Waste Management and would not be Waste Management
    employees. One of the essential characteristics of an independent contractor is that
    the contractor does not submit to the control of another person as to the details of
    the contractor’s work.      See Olivares v. Brown & Gay Engineering, Inc., 
    401 S.W.3d 363
    , 368 (Tex. App.—Houston [14th Dist.] 2013), aff’d, 
    461 S.W.3d 117
    (Tex. 2015). The Master Agreement does not define either “independent
    contractor” or “employee.” Whether we give these terms their plain, ordinary, and
    1
    (emphasis added).
    9
    generally accepted meanings or their technical meanings, the parties’ use of these
    terms shows that they agreed Waste Management would not have the right to
    control the details and methods of operation of Stevenson’s work. See City of
    
    Bellaire, 400 S.W.3d at 923
    –24; Texas A & M Univ. v. Bishop, 
    156 S.W.3d 580
    ,
    584–85 (Tex. 2005); Heritage Res., Inc. v. NationsBank, 
    939 S.W.2d 118
    , 121–22
    (Tex. 1996); 
    Olivares, 401 S.W.3d at 368
    .
    The Waste Management Parties also cite Draper v. American Rice, Inc. See
    No. 01-09-00239-CV, 
    2010 WL 2991094
    , at *2–6 (Tex. App.—Houston [1st Dist.]
    Jul. 29, 2010, no pet.) (mem. op.) in support of their argument. Stevenson asserts
    that the Draper case is not on point because (1) the Draper contract contained
    different language that did not include an agreement that the personnel provided by
    the temporary agency would be independent contractors; and (2) the defendant in
    Draper presented specific, detailed, uncontroverted, and consistent summary-
    judgment evidence that the defendant, in fact, controlled the details of the
    plaintiff’s work on the day of the plaintiff’s injury. Crucially, though the Master
    Agreement states that the personnel provided by Taylor Smith “shall be
    independent contractors in respect of Waste Management,” the contract in Draper
    did not say that the personnel furnished by the temporary-employment agency
    would be independent contractors, and the Draper contract stated that the
    personnel would not be “considered employees, agents, or independent
    contractors” of the client. See 
    id. at *2.
    We conclude that Draper is not on point.
    See 
    id. at *2–6.
    The Waste Management Parties also assert that the Master Agreement
    provides that Taylor Smith personnel serve as independent contractors as to certain
    duties owed to Taylor Smith and employees as to Waste Management for the
    purposes of the Act’s exclusive-remedy provision.        According to the Waste
    10
    Management Parties, the part of the Master Agreement with the independent-
    contractor language does not apply to the activity in which Stevenson was
    engaging at the time of the incident. We disagree with this interpretation of the
    Master Agreement.
    Rather than state that Taylor Smith personnel serve as independent
    contractors as to certain duties owed to Taylor Smith, the Master Agreement
    categorically states that “[Taylor Smith] and Personnel shall be independent
    contractors in respect of Waste Management and shall not be employees of Waste
    Management.” In addition, no language in the contract provides that this part of
    the Master Agreement does not apply to the work performed by personnel supplied
    by Taylor Smith.
    We conclude that the Master Agreement is a written contract expressly
    providing that Stevenson is an independent contractor and not a Waste
    Management employee and that the Master Agreement does not vest Waste
    Management with the right to control the details of Stevenson’s work. See 
    Love, 380 S.W.2d at 590
    , 592.
    Stevenson testified as follows:
     There were some helpers that Waste Management said could not come back
    to the Waste Management facility.
     While a helper was out on a route the driver was in charge of the work that
    was done, and the driver had the right to tell the helper if the helper was
    doing the work improperly.
     The driver had the ability to delay when the helper had lunch.
     If the driver thought a helper was not doing the job, the driver could have the
    helper removed from the truck.
     The driver decided when the helpers could ride on the back of the truck.
     No one at Waste Management ever told Stevenson that he had the ability to
    tell the Waste Management driver what to do.
    11
     Stevenson had seen drivers correct helpers who were doing something that
    violated their training.
     Based on what Stevenson understood, the route managers had the ability to
    tell him what to do and how to do his job. If Stevenson were the helper on a
    truck and the route manager said Stevenson had to change something that he
    was doing, Stevenson would have listened to the route manager.
    Zelaya, the Waste Management employee who drove the truck, testified as
    follows:
     Once Stevenson had been working as a helper for a while, Stevenson knew
    what to do, and Zelaya did not have to tell Stevenson what to do.
     Before the accident Zelaya was not controlling what Stevenson was doing
    because Zelaya could not control what Stevenson did.
     At the time of the accident and in the ten to fifteen minutes before the
    accident, Zelaya was controlling Stevenson with respect to how to do the
    job, but Zelaya could not control him to make Stevenson stay on one side of
    the truck or to make him not walk close to the truck.
     Before they leave the yard Zelaya tells workers like Stevenson what they are
    going to do with Zelaya and how they are going to do it.
     After Zelaya and Stevenson finished the regular route, they went to do the
    “helper route,” and Zelaya does not recall giving Stevenson any instructions
    or directions. At that time Zelaya could not control Stevenson because
    Stevenson was on the side of the street.
     When asked “you didn’t control [Stevenson], you didn’t provide him with
    any directions at that time, correct?” Zelaya answered “[c]orrect.”
     Stevenson knew how to do the job of helper on a garbage truck, and Zelaya
    did not have to tell Stevenson what to do.
     It was part of Zelaya’s job to supervise the temporary helpers that were on
    Zelaya’s truck.
     At all times when Zelaya was out on the truck, Zelaya had the right to tell
    the helpers how to do their work and what to do.
    12
    Tracy Smith, the owner of Taylor Smith, testified as follows:
     The words in the Master Agreement matter.
     The Master Agreement is a real contract, not a sham, and not a subterfuge.
     When Taylor Smith sends the personnel to work they are managed and fired
    by Taylor Smith’s client.
     Once Taylor Smith puts employees like Stevenson on assignment, Taylor
    Smith does not manage them, tell them what to do, or give them directives.
     With regard to the helper work Taylor Smith employees perform for Waste
    Management, once the employees leave the yard there is no Taylor Smith
    supervisor with them.
     Once the Taylor Smith employees leave the yard Taylor Smith considers the
    Waste Management route manager and the Waste Management driver to be
    the supervisors of the people acting as helpers.
     Once a Taylor Smith employee goes to work at Waste Management, they
    work for Waste Management, and they are managed and disciplined by the
    client. Waste Management can call Taylor Smith and ask Taylor Smith to
    give a worker a reprimand.
     The Waste Management supervisor told Stevenson what to do.
     The Waste Management route manager and the Waste Management driver
    “direct all of the work for the helpers.” Once the helpers are on the truck,
    the route manager and the driver are telling them what to do until they return
    to the yard and clock out.
     Taylor Smith tells the helpers that they are to do what the driver says to do
    and that they are to do what the route manger says to do.
     Regardless of what the Master Agreement says, Waste Management had the
    right to control the details of the work of the helpers who are out on a route.
    William Ward Oldner, Waste Management’s corporate representative,
    testified as follows:
     Waste Management is not aware of any documentation supporting the
    statement that Stevenson was a Waste Management employee at the time of
    the incident.
    13
     Waste Management thinks Stevenson was a Waste Management employee
    because Waste Management controls Stevenson’s actions and duties while
    he is on a truck or in the scope of his work at Waste Management.
    E.       Genuine Fact Issue Precluding Summary Judgment
    Under the Love Legal Standard, the summary-judgment evidence raises a
    genuine fact issue as to whether Stevenson was an employee of Waste
    Management at the time of the accident. See 
    Perez, 842 S.W.2d at 630
    –31; 
    Love, 380 S.W.2d at 591
    –92; Hoffman v. Trinity Indus., Inc., 
    979 S.W.2d 88
    , 90–92
    (Tex. App.—Beaumont 1998, pet. dism’d by agr.).                    Accordingly, we sustain
    Stevenson’s first and second issues, reverse the trial court’s judgment, and remand
    this case to the trial court.2
    /s/    Kem Thompson Frost
    Chief Justice
    Panel consists of Chief Justice Frost and Justices Christopher and Jamison.3
    2
    We need not and do not address the third issue.
    3
    Justice Jamison was assigned to the panel for this case and participated during oral argument,
    but she is no longer a justice on the Fourteenth Court of Appeals, and she did not participate in
    deciding this case. The remaining panel members have decided this appeal. See Tex. R. App. P.
    41.1(b) (“After argument, if for any reason a member of the panel cannot participate in deciding
    a case, the case may be decided by the two remaining justices.”).
    14