Raymond L. Brooks v. the Goodyear Tire & Rubber Co. ( 2013 )


Menu:
  • Affirmed and Memorandum Opinion filed July 9, 2013.
    In The
    Fourteenth Court of Appeals
    NO. 14-12-01048-CV
    RAYMOND L. BROOKS, Appellant
    V.
    THE GOODYEAR TIRE & RUBBER CO., Appellee
    On Appeal from the 189th District Court
    Harris County, Texas
    Trial Court Cause No. 2010-39442A
    MEMORANDUM                    OPINION
    Appellant, Raymond Brooks, appeals the trial court‘s order granting
    traditional summary judgment in favor of appellee, The Goodyear Rubber & Tire
    Company, on its exclusive-remedy affirmative defense pursuant to the Texas Labor
    Code. We affirm.
    I. BACKGROUND
    While working for Qualitech Maintenance, Inc. at the Goodyear facility in
    Houston, Brooks suffered work-related personal injuries to his hand, shoulder and
    knee. He alleged he was injured when Ronald Dunaway, a Goodyear employee,
    ran over Brooks while operating a ―4-wheeler all terrain vehicle in a backwards
    direction without a back up alarm and/or horn, on the premises of the Goodyear
    plant.‖    Brooks made a claim for benefits under Qualitech‘s workers‘
    compensation policy and received medical benefits.
    Subsequently, Brooks sued Dunaway and Goodyear alleging negligence.
    Goodyear pleaded the affirmative defense of the exclusivity provisions of the
    Texas Labor Code. Goodyear sought summary judgment on Brooks‘s claims
    against it, urging that the claims were barred because Goodyear was Brooks‘s
    ―statutory employer.‖
    In support of its traditional motion for summary judgment, Goodyear relied
    upon (a) an excerpt from Brooks‘s deposition; (b) the affidavit of Benjamin
    Ramsey, general counsel for Mundy Service Corporation, a company that provides
    administrative support to Qualitech; and (c) the ―Services Agreement for Contract
    Labor Between The Goodyear Tire & Rubber Company, Houston, Bayport &
    Beaumont, Texas and Qualitech Maintenance, Inc.‖ (Services Agreement).
    By the deposition excerpt, Brooks testified that he made a workers‘
    compensation claim for the injuries at issue in this case and received benefits.
    Ramsey testified in his affidavit, in pertinent part that:
    As part of the Services Agreement, representatives of Qualitech
    Maintenance, Inc. and Goodyear made specific agreements regarding
    the procurement of workers‘ compensation coverage for Qualitech
    Maintenance, Inc. employees working at Goodyear, including
    Raymond L. Brooks, the Plaintiff in this lawsuit. Article 4.1.2(4) of
    2
    the Services Agreement required Goodyear to reimburse Qualitech
    Maintenance, Inc. for the actual cost of providing workers‘
    compensation insurance for Qualitech Maintenance, Inc. employees
    working at Goodyear‘s facilities. Qualitech Maintenance, Inc. then
    procured workers‘ compensation coverage for the Qualitech
    Maintenance, Inc. employees paid for pursuant to the Services
    Agreement by Goodyear by expanding the coverage available under
    the Mundy Service Corporation‘s existing blanket policy for its entire
    worker pool to include Goodyear as a covered premises. As such,
    Goodyear has been in all ways responsible for reimbursement of costs
    of workers‘ compensation coverage to Qualitech Maintenance, Inc.
    for the Qualitech Maintenance, Inc. employees at the Goodyear
    facility and has dutifully reimbursed Qualitech Maintenance, Inc.
    according to the Services Agreement.
    Finally, Article 4 of the Services Agreement, entitled ―Compensation for
    Services,‖ shows the supplier Qualitech providing for workers‘ compensation
    insurance coverage.
    Brooks responded to Goodyear‘s motion urging that Goodyear failed to
    adduce summary judgment evidence that it paid for the workers‘ compensation
    insurance.    Brooks offered no summary judgment evidence.1                   The trial court
    granted Goodyear‘s motion for summary judgment.
    II. ANALYSIS
    In a single issue, Brooks appeals, arguing that the trial court erred because
    Goodyear failed to establish its affirmative defense. We affirm.2
    1
    Brooks also objected to Goodyear‘s evidence. The trial court‘s summary judgment
    order states that it has ―considered all summary judgment evidence herein.‖ We need not
    determine whether the trial court‘s statement is an implicit ruling on Brooks‘s evidentiary
    objections as Brooks does not assign error to any evidentiary point. See San Jacinto River Auth.
    v. Duke, 
    783 S.W.2d 209
    , 209–10 (Tex. 1990) (per curiam) (explaining that ―grounds of error
    not asserted by point of error or arguments to the court of appeals are waived‖).
    2
    Goodyear urges that Brooks failed to properly invoke the jurisdiction of this court with
    a timely notice of appeal. The trial court granted Goodyear‘s motion for summary judgment on
    July 29, 2011. The summary judgment order was interlocutory as claims remained against
    3
    A. Standard of Review
    To be entitled to summary judgment under Rule 166a(c), a movant must
    establish that there is no genuine issue of material fact so that the movant is
    entitled to judgment as a matter of law. Mann Frankfort Stein & Lipp Advisors,
    Inc. v. Fielding, 
    289 S.W.3d 844
    , 848 (Tex. 2009). We take as true all evidence
    favorable to the nonmovant and resolve any doubt in the nonmovant‘s favor.
    20801, Inc. v. Parker, 
    249 S.W.3d 392
    , 399 (Tex. 2008).                       We consider the
    evidence presented in the light most favorable to the nonmovant, crediting
    evidence favorable to the nonmovant if reasonable jurors could, and disregarding
    evidence contrary to the nonmovant unless reasonable jurors could not. Mann
    Frankfort Stein & Lipp Advisors, 
    Inc., 289 S.W.3d at 848
    . A defendant moving for
    summary judgment on an affirmative defense must prove conclusively the
    elements of the defense. Shah v. Moss, 
    67 S.W.3d 836
    , 842 (Tex. 2001).
    B. Exclusivity Defense Under The Texas Labor Code
    The Texas Workers‘ Compensation Act (TWCA) was adopted to provide
    prompt remuneration to employees who sustain injuries in the course and scope of
    their employment. Hughes Wood Prods. v. Wagner, 
    18 S.W.3d 202
    , 206 (Tex.
    2000) (quoting Darensburg v. Tobey, 
    887 S.W.2d 84
    , 86 (Tex. App.—Dallas 1994,
    writ denied)). An employer has the option of providing workers‘ compensation
    insurance for employees and becoming a subscriber under the TWCA, or not
    Dunaway. The trial court granted Brooks‘s motion to sever on April 17, 2012, and severed the
    cause against Goodyear into a separate cause number, 2010-39442-A. Brooks filed a notice of
    appeal of that ―final judgment‖ in Cause No. 2010-39442 on March 23, 2012. The prematurely
    filed notice of appeal is effective as deemed filed on April 17, 2012. See TEX. R. APP. P. 27.1(a)
    (―In a civil case, a prematurely filed notice of appeal is effective and deemed filed on the day of,
    but after, the event that begins the period for perfecting the appeal.‖). This court also recognizes
    premature notices of appeal, filed in a cause pre-severance, as effective to appeal the
    interlocutory summary judgment made final by the severance. See Corcoran v. Atascocita Cmty.
    Improvement Ass’n, No. 14-12-00983-CV, 
    2013 WL 504051
    , at *1 (Tex. App.—Houston [14th
    Dist.] Feb. 12, 2013, no pet.) (mem. op.).
    4
    providing workers‘ compensation insurance and remaining a nonsubscriber. TEX.
    LAB. CODE ANN. § 406.002(a) (West 2006); Port Elevator-Brownsville, L.L.C. v.
    Casados, 
    358 S.W.3d 238
    , 241 (Tex. 2012); Briggs v. Toyota Mfg. of Tex., 
    337 S.W.3d 275
    , 281 (Tex. App.—San Antonio 2010, no pet.).            If the employer
    chooses not to subscribe, the employer may not assert common law defenses
    against an employee in a negligence suit. 
    Briggs, 337 S.W.3d at 281
    ; Hunt Constr.
    Group, Inc. v. Konency, 
    290 S.W.3d 238
    , 243 (Tex. App.—Houston [1st Dist.]
    2008, pet. denied).
    If the employer is a subscriber, the TWCA allows employees to recover
    workers‘ compensation benefits for injuries in the course and scope of employment
    without proving fault by the employer and without regard to their negligence or
    that of their coworkers. Port Elevator-Brownsville, 
    L.L.C., 358 S.W.3d at 241
    . In
    exchange, the TWCA prohibits an employee from seeking common law remedies
    from his employer for personal injuries sustained in the course and scope of his
    employment. Hughes Wood 
    Prods., 18 S.W.3d at 207
    (quoting 
    Darensburg, 887 S.W.2d at 86
    ). ―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
    ANN. § 408.001(a) (West 2006). The exclusive-remedy provision is an affirmative
    defense. Warnke v. Nabors Drilling USA, L.P., 
    358 S.W.3d 338
    , 343 (Tex. App.—
    Houston (1st Dist.) 2011, no pet.).
    The exclusive-remedy defense provided to subscribing employers is also
    afforded to a general contractor if, pursuant to a written agreement, it ―provides‖
    workers‘ compensation insurance coverage to the subcontractor and its employees.
    HCBeck, Ltd., v. Rice, 
    284 S.W.3d 349
    , 350 (2009) (citing TEX. LAB. CODE ANN.
    §§ 406.123(a), 408.001(a)).      If the general contractor ―provides‖ workers‘
    5
    compensation insurance, it becomes a statutory employer of the subcontractor‘s
    employees. 
    Id. at 352
    (citing TEX. LAB. CODE ANN. § 406.123(e)). The sole
    question presented by this appeal is whether Goodyear is Brooks‘s statutory
    employer entitled to the exclusive-remedy defense. Because exclusive remedy is
    an affirmative defense, Goodyear had the burden to conclusively establish its
    entitlement to judgment. See 
    Shah, 67 S.W.3d at 842
    (providing that a defendant
    moving for summary judgment on an affirmative defense must prove conclusively
    the defense‘s elements).
    C. Goodyear “Provided” Workers’ Compensation Insurance
    Recently, the Texas Supreme Court conducted an extensive statutory
    analysis of the meaning of the term ―provided‖ in section 406.123 of the Texas
    Labor Code—the specific provision at issue in this case. In HCBeck, Ltd., the
    Texas Supreme Court considered ―the extent to which a general contractor must
    ‗provide‘ workers‘ compensation insurance under the [TWCA] to qualify for
    statutory employer status and the resulting immunity from the work-related claims
    of a subcontractor‘s employees‖ under section 
    406.123(a). 284 S.W.3d at 350
    .
    The parties did not dispute that HCBeck entered into a contract with FMR by
    which FMR was to provide insurance on the project under an Owner Controlled
    Insurance Program (OCIP). 
    Id. HCBeck and
    all subcontractors working on the
    project were contractually required to enroll in the OCIP. 
    Id. The injured
    worker,
    an employee of a subcontractor, sued HCBeck. The Supreme Court rejected the
    argument that HCBeck was not the worker‘s statutory employer because HCBeck
    did not ―obtain the insurance‖ or pay for the insurance directly. 
    Id. at 353–54.
    Instead, HCBeck ―provided‖ workers‘ compensation insurance to the subcontractor
    because it entered into a written agreement to provide workers‘ compensation
    insurance coverage and ―contracted to pay for [the subcontractor‘s] insurance
    6
    through its agreement to pay the ‗Subcontract Amount.‘‖ 
    Id. at 358.
    The statutory
    language did not permit a more narrow construction of ―provide‖ because the
    Legislature rejected the term ―subscriber.‖ 
    Id. at 357.
    And, the court determined
    that the broader construction of the term ―provide‖ achieves the Legislative
    purpose to ensure that subcontractors‘ employees receive the benefit of workers‘
    compensation insurance. 
    Id. at 350.
    This case is indistinguishable from HCBeck.           Goodyear‘s summary
    judgment evidence establishes that:
    Goodyear had a written contract that provided for workers‘
    compensation insurance for Qualitech employees.
    Brooks was a Qualitech employee.
    Qualitech purchased workers‘ compensation coverage for its
    employees, including Brooks.
    Goodyear contractually obligated itself to reimburse Qualitech
    for the insurance premiums paid for the Qualitech workers‘
    compensation insurance for workers‘ at Goodyear facilities,
    including Brooks.
    Goodyear reimbursed Qualitech for the insurance premiums
    paid for the Qualitech workers‘ compensation insurance for
    workers‘ at Goodyear facilities.
    Brooks urges that this case is more analogous to Valdez v. MEMC Pasadena,
    Inc., No. 01-09-00778-CV, 
    2011 WL 743099
    (Tex. App.—Houston [1st Dist.]
    Mar. 3, 2011, no pet.) (mem.).        In Valdez, our sister court held that merely
    requiring a subcontractor to maintain workers‘ compensation coverage is
    insufficient unless the general contractor has paid for or reimbursed the workers‘
    compensation premiums. 
    Id. at *4.
    We need not agree or disagree with the
    holding in Valdez, as the summary judgment evidence in this case conclusively
    establishes that Goodyear was contractually obligated to reimburse for the
    workers‘ compensation premiums and complied with that contractual obligation.
    7
    Therefore, HCBeck controls the disposition of this case. In the absence of a
    genuine issue of fact regarding whether Goodyear ―provided‖ workers‘
    compensation insurance under a written agreement, the trial court correctly granted
    Goodyear‘s motion for summary judgment.
    III. CONCLUSION
    Having overruled Brooks‘s single issue, we affirm.
    /s/   Sharon McCally
    Justice
    Panel consists of Justices Brown, Christopher, and McCally.
    8