Melissa MacHelle Clark and Stetson Benningfield v. EOG Resourses Inc.

Opinion issued January 7, 2014
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00262-CV
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MELISSA MACHELLE CLARK AND STETSON BENNINGFIELD,
Appellants
V.
EOG RESOURCES, INC., Appellee
On Appeal from the 270th District Court
Harris County, Texas
Trial Court Case No. 2010-66372
MEMORANDUM OPINION
Appellants Melissa Machelle Clark and Stetson Benningfield appeal the trial
court’s granting of summary judgment in favor of appellee EOG Resources, Inc.
We affirm.
BACKGROUND
The underlying facts here are largely undisputed. Appellee EOG Resources,
Inc. is an energy exploration company. It has a Master Service Contract with
Vaquero, under which Vaquero’s employees perform jobs at EOG’s premises.
EOG is Vaquero’s main client, and their agreement provides that Vaquero is an
independent contractor, which is at all times in control of its employees’ work.1
Jack Imboden is a compression foreman with EOG, and he is a supervisor to
lead mechanic Danny Graham. Imboden oversees a group of mechanics at EOG
facilities that consist of about 95 percent contractors (from Vaquero and various
other companies) and about five percent EOG employees. Imboden and Graham
regularly review resumes, and Graham interviews people, to refer to contractor
companies like Vaquero for consideration to hire to do work as contractor
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Specifically, it provides:
In the performance of any work by Contractor for Company, Contractor
conclusively shall be deemed an independent contractor, with the authority and
right to direct and control all of the details of the work, Company being interested
only in the result obtained. However, all work contemplated shall meet the
approval of Company and shall be subject to the general right of inspection.
Company shall have no right or authority to supervise or give instructions to the
employees, agents or representatives of Contractor, but such employees, agents or
representatives at all times shall be under the direct and sole supervision and
control of Contractor. Any suggestions or directions which may be given by
Company or its employees shall be given only to the superintendent or to the other
person in charge of Contractor’s crew, it is the understanding and intention of the
parties hereto that no relationship of master and servant or principal and agent
shall exist between Company and the employees, agents or representatives of
Contractor.
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employees on EOG’s premises. Vaquero hired employees referred by EOG more
than fifty percent of the time.
This dispute involves Vaquero’s hiring of Robbie Lynn Clark, who is now
deceased. Clark was Imboden’s half-brother, and Clark was hired to work for
Vaquero at EOG’s site after he was referred to Vaquero by Imboden. Before he
applied with Vaquero, Clark had a long history of DWI convictions. He was
charged, convicted, and sentence to 180 days’ confinement after an arrest in
Comanche County, Texas on December 6, 1991 for DWI. He was arrested again
on December 5, 1994 and charged with a third-degree felony for a third offense of
DWI, pleaded guilty, and was sentenced to eight years’ confinement. He was
paroled from that confinement on June 12, 1998, and was to remain under
community supervision until December 5, 2002.
On June 9, 2001, Clark was again arrested and charged with a third-degree
felony DWI. Clark entered a plea bargain and was sentenced to ten years’
confinement. He was again paroled on May 23, 2007, with a special condition that
he not operate a motor vehicle without prior approval of his parole officer.
On June 7, 2007, Clark renewed his driver’s license and then applied for a
job with Vaquero. Vaquero’s insurance agent requested Clark’s driving record
(generating a report that is labeled “for insurance purposes only”), which showed
only three years of history (and, hence, no DWI convictions) and reflected only
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that Clark’s license had been expired since 2005. Clark provided proof to Vaquero
that his license was renewed with no restrictions. Vaquero hired Clark without
verifying his references or job history listed on his application, which did not
reflect any gaps in employment. Clark was assigned a company truck.
Unbeknownst to Vaquero, Clark was again arrested for DWI on December
15, 2007, and his license was suspended. Clark continued to drive for Vaquero
without a license. On October 9, 2008, Clark was driving his Vaquero company
truck with another Vaquero employee as a passenger leaving a job site to go to
lunch. Clark ran the truck off the road and was killed when the truck rolled and
ejected him from the vehicle. An autopsy revealed his blood alcohol concentration
to be 0.344.
A. Plaintiffs’ claims
The plaintiffs here are Melissa Machelle Clark (as surviving spouse and
administrator of Clark’s estate), and Stetson Clark a/k/a Stetson Benningfield
(Clark’s son). They sued both EOG and Vaquero, although this appeal involves
only their claims against EOG.
Plaintiffs assert that “EOG and Vaquero, acting with conscious indifference
from the well being of [Clark], ignored their own internal policies,” which
prohibited the use of alcohol on the job and required disclosure to Vaquero if a
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person recommended for a job is related to the person making the
recommendation.
Plaintiffs’ petition contains the following claims against EOG:
(1) “negligence, negligent hiring of a contractor including the negligent
failure to investigate, screen, and supervise, negligent retention of a
contractor, negligent hiring of an employee, negligent failure to
investigate, screen, and supervise, negligent retention of an employee,
negligent failure to disclose, negligent failure to qualify and gross
negligence on each count above”
(2) “gross negligence,” and
(3) “wrongful death”
B. Summary Judgment proceedings
EOG filed a no-evidence and traditional motion for summary judgment.
Plaintiffs filed special exceptions challenging EOG’s no evidence summary
judgment motion, requesting that EOG be ordered to “replead with the necessary
specificity so that Plaintiff has notice as to which elements of which causes of
action EOG is referring to.” Plaintiffs also filed objections to some of EOG’s
summary-judgment evidence and a response to EOG’s motion.
The trial court granted EOG’s motion.
ISSUES ON APPEAL
On appeal, the plaintiffs argue (1) the trial court abused its discretion in
overruling their special exceptions to EOG’s motion for summary judgment, and
(2) the trial court erred in granting summary judgment.
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SPECIAL EXCEPTIONS
Plaintiffs contend that, in its motion for summary judgment, EOG identified
the elements of Plaintiffs’ claims as “duty, breach, and causation but fail to specify
which of the three elements are lacking.” Plaintiffs assert that EOG then “further
mudd[ied] the water” by spending several pages summarizing the law governing
duty, and then listing facts that allegedly demonstrate that EOG lacks a duty in this
case, and then concluding that Plaintiffs are “unable to establish any of the
essential elements of a cause of action.” According to Plaintiffs, EOG’s “motion
lacked specificity and was conclusory rendering the motion unclear and
ambiguous.” Thus, plaintiffs argue, they “should not be required to argue the
elements of breach and proximate cause as nothing in EOG’s motion specifically
points to either of these elements.” They request that we hold the trial court
“abused its discretion in this regard and remand this cause to the trial court and
order EOG to plead with the required specificity.”
EOG responds that it sufficiently identified the elements it challenged in a
section of its hybrid motion entitled, “Basis for No Evidence Summary Judgment.”
That portion stated that Plaintiffs are “unable to establish one or more of the
essential elements of [their] claims against EOG” and identified those elements as
“a duty, a breach and that the breach was a proximate cause of the occurrence or
injury.” EOG argues that courts have found similar statements to be sufficiently
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specific and, in any event, Plaintiffs have not alleged that the court’s overruling
their special exceptions impacted their ability to respond caused the trial court to
render an improper judgment.
Rule 166a(i) requires that a no-evidence motion for summary judgment
identify elements of which there is no evidence with specificity.
After adequate time for discovery, a party without presenting
summary judgment evidence may move for summary judgment on the
ground that there is no evidence of one or more essential elements of a
claim or defense on which an adverse party would have the burden of
proof at trial. The motion must state the elements as to which there is
no evidence. The court must grant the motion unless the respondent
produces summary judgment evidence raising a genuine issue of
material fact.
TEX. R. CIV. P. 166a(i) (emphasis added). The supreme court has explained the
“underlying purpose of this requirement ‘is to provide the opposing party with
adequate information for opposing the motion, and to define the issues for purpose
of summary judgment.’” Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 311 (Tex.
2009). The requirement is akin to “fair notice” pleading requirements. See, e.g.,
Gary Patterson & Assocs. v. Holub, 264 S.W.3d 180, 200 (Tex. App.—Houston
[1st Dist.] 2008, pet. denied) (holding specifically identifying and challenging each
element of claim is sufficient).
Here, EOG’s motion listed each negligence theory from Plaintiffs’ petition,
and states that the essential elements of each claim are “duty, breach and that the
breach was a proximate cause of the occurrence or injury.” The motion contains
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(1) a lengthy analysis of Texas law regarding the limits of the duty owned by
employers of independent contractors, (2) a list of the type of evidence Plaintiffs
allegedly lack, and (3) a statement that Plaintiffs are “unable to establish any of the
essential elements of a cause of action against EOG based on negligence.”
The trial court correctly concluded that EOG’s motion for summary
judgment’s adequately identified the elements of Plaintiffs’ claims for which EOG
claims that there is no evidentiary support, i.e., duty, breach, and proximate cause.
In any event, Plaintiffs do not challenge that EOG adequately addressed the
element of duty, which—as discussed below—is the element that we find to be
dispositive in this appeal.
We overrule Plaintiffs’ first issue.
SUMMARY JUDGMENT
A. Standard of Review
We review summary judgments de novo. Valence Operating Co. v.
Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). When a summary judgment does not
specify the grounds on which it was granted, we will affirm the judgment if any
one of the theories advanced in the motion is meritorious. Joe v. Two Thirty Nine
Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004). When a party has filed both a
traditional and no-evidence summary judgment motion and the order does not
specify which motion was granted, we typically first review the propriety of the
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summary judgment under the no-evidence standard. See TEX. R. CIV. P. 166a(i);
see also Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). If the no-
evidence summary judgment was properly granted, we need not reach arguments
under the traditional motion for summary judgment. Ford Motor Co., 135 S.W.3d
at 600.
After adequate time for discovery, a party may move for summary judgment
on the ground that there is no evidence of one or more essential elements of a
claim. TEX. R. CIV. P. 166a(i). Once the movant specifies the elements on which
there is no evidence, the burden shifts to the nonmovant to raise a fact issue on the
challenged elements. Id.
Traditional summary judgment is proper only when the movant establishes
that there is no genuine issue of material fact and that the movant is entitled to
judgment as a matter of law. TEX. R. CIV. P. 166a(c). In reviewing a traditional
summary judgment, we must indulge every reasonable inference in favor of the
nonmovant, take all evidence favorable to the nonmovant as true, and resolve any
doubts in favor of the nonmovant. Valence, 164 S.W.3d at 661. A defendant who
moves for traditional summary judgment on the plaintiff’s claim must conclusively
disprove at least one element of the plaintiff's cause of action. Little v. Tex. Dep’t
of Criminal Justice, 148 S.W.3d 374, 381 (Tex.2004).
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B. Duty
The parties agree that an essential element of each of Plaintiffs’ negligence-
based claims is duty. The existence of a duty is a question of law, although it can
turn on the resolution of disputed facts or inferences. Nabors Drilling, U.S.A., Inc.
v. Escoto, 288 S.W.3d 401, 404 (Tex. 2009) (citing Tri v. J.T.T., 162 S.W.3d 552,
563 (Tex. 2005)).
The parties have presented us with extensive briefing about independent-
contractor relationships and the circumstances under which a contracting entity
(here, EOG) may owe a duty to an independent contractor’s employee (here, Clark
as an employee of Vaquero) or to a third party injured by an independent
contractor’s conduct. The parties have also briefed issues related to the
applicability of the “unlawful-act doctrine,” including whether it has been
superseded in whole or in part by Chapter 93 of the Texas Civil Practice and
Remedies Code. We conclude, however, that we need not resolve these issues
because this case turns on the narrower issue of what duty, if any, could be owed to
Clark under these facts.
“It is well settled that the threshold inquiry in a negligence claim is whether
a duty is owed to the plaintiff by the defendant.” Edwards v. Silva, 32 S.W.3d 713,
715 (Tex. App.—San Antonio 2000, pet. denied). Essentially, by challenging the
independent-contractor status, Plaintiffs seek to place EOG (the company that
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hired Vaquero, the independent contractor) in the shoes of Vaquero (Clark’s
employer) by arguing that EOG exerted sufficient control over Clark’s hiring,
retention, and/or entrustment to impute an employment-like relationship, with the
accompanying duties and rights, between EOG and Clark. For purposes of our
analysis, we will assume without deciding that such control existed. The issue then
becomes: “Does an employer owe a duty to prevent the employee from injuring
himself through his own intoxicated driving of a company vehicle during a lunch
break?” Our review of the relevant Texas caselaw leads us to conclude that no
such duty exists on the facts presented here.
In Otis Engineering Corporation v. Clark, the supreme court first addressed
whether an employer could be liable to third parties killed in an automobile
collision by an intoxicated employee on his way home from work. 668 S.W.2d
307, 308 (Tex. 1984). The employee was known to drink on the job and, on the
night of the accident, his supervisor escorted him out of his work area and sent him
home in middle of his shift because he was so intoxicated that he had been seen
“weaving and bobbing on his stool and about to fall into his machine.” Id. The
supreme court held that a duty to third parties could exist on these facts, and
articulated it as follows:
[W]hen, because of an employee’s incapacity, an employer exercises
control over the employee, the employer has a duty to take such action
as a reasonable prudent employer under the same or similar
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circumstances would take to prevent the employee from causing an
unreasonable risk of harm to others.
Id. at 311. The court remanded for the factfinder to resolve whether the employer
had acted reasonably.
In contrast, courts have declined to extend Otis to create a duty owed to third
parties injured by intoxicated employees absent evidence of “negligent exercise of
control over the employee.” Catlin v. Gen. Motors Corp., 936 S.W.2d 447, 451
(Tex. App.—Houston [14th Dist.] 1996, no writ) (“Because there is no summary
judgment evidence indicating that [the employer] or its employees knew that
[deceased] was intoxicated and exerted any control over him, Otis’ narrow duty
imposed on employers to third persons does not apply.”); see also id. at 451 (“In
order for a duty to third persons to arise, an employer must perform some
affirmative act of control over an ‘incapacitated employee.’”).
Several courts, including this one, have likewise declined to extent Otis to
create a duty owed to an employee or contractor injured by his or her own
intoxication. For example, in Verdeur v. King Hospitality Corp., the plaintiff with
a known history of drinking showed up for work intoxicated and was later sent
home by her manager because of her condition. 872 S.W.2d 300, 301 (Tex.
App.—Fort Worth 1994, writ denied). She was killed in an automobile accident
on the way home, and her family brought a wrongful death suit against her
employer. Id. The Fort Worth Court of Appeals rejected the plaintiffs’ argument
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that Otis created a duty in this situation, explaining “Otis only creates a duty owed
by an employer to innocent third parties who are injured by the acts of an
intoxicated employee. It does not create a duty which requires an employer to
protect an intoxicated employee from injuring herself.” Id. at 303 (second
emphasis added).
In Edwards, the San Antonio Court of Appeals likewise declined to extend
Otis in a situation where the plaintiff’s employer was aware of his intoxication, but
did not exert actual control over the plaintiff or his drinking. 32 S.W.3d at 717. In
that case, the plaintiff went out drinking with his boss after work at his boss’s
invitation. Id. at 715. Afterwards, after he became intoxicated, his boss dropped
him back off at his car and he was injured in an accident while driving home. Id.
at 714. Noting the general rule that “a person is under no duty to control the
conduct of another,” the Edwards court distinguished Otis, explaining that a “duty
attaches in the context of the employer-employee relationship only with the
employer performs some affirmative act of control over an incapacitated
employee.” Id. at 715–16; see also Swanson v. Steak & Ale of Tex., Inc., No. 01-
97-01019-CV, 1998 WL 350586, at *5–6 (Tex. App.—Houston [1st Dist.] June 25,
1998, no pet.) (not designated for publication) (declining to “extend the holding in
Otis to the intoxicated employee” and noting that, in any event, supervisor drinking
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with employee “did not exercise sufficient control to warrant the imposition of
such a duty.”)
In D. Houston, Inc. v. Love, however, the supreme court extended Otis to
recognize a duty owed to intoxicated employees and contractors to prevent them
from injuring themselves while driving from work if drinking alcohol is required
by the employer. 92 S.W.3d 450, 452 (Tex. 2002). The plaintiff in Love was a
dancer at Treasures, where drinking on the job was heavily encouraged, if not
required. Id. at 456. She was injured in an automobile accident after leaving work
intoxicated one evening. Id. at 452. The court recognized a narrow duty arose
from Treasures’s control over the plaintiff’s intoxication:
We hold that when an employer exercises some control over its
independent contractor’s decision to consume alcoholic beverages to
the point of intoxication, such that alcohol consumption is required,
the employer must take reasonable steps to prevent foreseeable injury
to the independent contractor caused by drunk driving.
Id. at 457.
Here, Plaintiffs summary-judgment response alleges EOG exerted control in
the following respects:
- “EOG exercised control over Vaquero’s hiring process.” (i.e., Vaquero
hired Clark on Iboden’s recommendation)
- “EOG supervised the actions of Vaquero employees.” (i.e., EOG
supervises Vaquero employees at EOG’s job site)
- “EOG retained and exercised control over Vaquero vehicles.” (i.e.,
Vaquero assigns trucks to its employees for use in doing work for EOG
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at EOG’s direction, and Vaquero charges EOG $.85 a mile for Vaquero
employees to do work for EOG in Vaquero’s vehicles).
- “EOG retained the right to ask that any Vaquero employee be replaced
from the EOG jobsite.”
Under Otis and its progeny, this alleged control falls short of what is
required to demonstrate that EOG owed a duty to Clark to prevent Clark from
injuring himself driving to lunch while intoxicated. There is no evidence that EOG
knowingly assumed control over an intoxicated Clark (as in Otis) or that EOG
encouraged or required Clark to consume alcohol at work (as in Love). Because
Plaintiffs cannot establish a duty exists, the trial court’s granting summary
judgment was proper.
We overrule Plaintiffs’ second issue.
CONCLUSION
We affirm the trial court’s judgment.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
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