Court of Appeals Demonstrates Application of Borrowed Servant Doctrine
A Texas Court of Appeals has affirmed a trial court judgment that an injured worker was the borrowed servant of a subcontractor on a construction project, thus entitling the subcontractor to the exclusive remedy defense against a negligence suit. In so doing, the court of appeals illustrated what facts can be persuasive to a court in finding that an employee has become a borrowed servant.
In Flores v. Chasco, et al., No. 05-14-00531-CV (August 16, 2016) Flores was installing an HVAC system in a warehouse. He was seriously injured when a scissor lift he was using fell over while extended. Alcatel USA Sourcing, Inc. had hired ICI as the general contractor to finish out the warehouse for use as Alcatel’s distribution center. In his pleadings, Flores alleged that he was hired by Nationwide HVAC Services, Inc. to work on the warehouse HVAC system and that 24 Hour, a subcontractor on the project, hired Nationwide as an independent contractor. Chasco, who was also working in the warehouse installing sheetrock, had leased the scissor lift to use there. Flores asserted causes of action against ICI, 24 Hour, and Chasco for negligence, negligence per se, and gross negligence and alleged they acted with malice toward him. 24 Hour moved for traditional summary judgment on grounds that Flores was its borrowed servant and that his exclusive remedy was through the workers’ compensation act. The court granted 24 Hour’s summary judgment motion.
Texas law recognizes that a general employee of one employer may become the borrowed servant of another. A borrowed servant is properly covered by the borrowing employer’s workers’ compensation insurance. Thus, to prevail on the borrowed servant affirmative defense, the employer must plead and prove that (1) the employee was a borrowed servant; (2) the employee was entitled to workers’ compensation benefits; and (3) the employer had workers’ compensation insurance that covered the claims asserted by the borrowed servant. Of these elements, Flores challenged only whether 24 Hour established that he was its borrowed servant. The court of appeals concluded that it had done so.
24 Hour’s summary judgment evidence established that it controlled the details of Flores’s work. See Garza v. Exel Logistics, Inc., 161 S.W.3d 473, 477 (Tex. 2005) (worker hired by temp agency and injured while working for agency’s client was employee of client where client controlled details of his work). Flores disputes that the details of the work that caused the injury were not specifically directed by Walters. He asserts that the fact that Walters instructed Flores to use Chasco’s scissor lift, in tandem with Federico in 24 Hour’s scissor lift, to lift the 90 so it could be connected to the duct work was insufficient control over the details. He relies on the fact that Walters did not control the details by which Flores and Federico raised the lifts and the 90. Flores also cites Walters’s testimony that Walters was not looking up at him and Federico as they used the two lifts together as evidence he was not controlling the details of the work. Although Flores asserts he was expected only to give the results called for by 24 Hour and thus could not be a borrowed servant, the evidence shows 24 Hour controlled the details of the work he was doing, such as when and how to install the duct work, rather than just leaving it to Flores to achieve the result. Flores seems to argue that 24 Hour needed to direct every small aspect of his work. This is not the law. And Littrell, Flores’s own expert, testified Flores was 24 Hour’s borrowed servant.
Flores asserts that because he did not speak much English, and Walters spoke only a little bit of Spanish, a fact issue exists regarding whether Walters could have controlled the details of his work. Flores stated that Walters spoke a little bit of Spanish. Walters spoke to Federico and Federico would explain what he said to Flores. Also, both Flores and Walters indicated they communicated through gestures. Walters pointed to the scissor lift and indicated he wanted Flores to use it to help connect the 90. Walters testified that Flores and his co-worker could understand him a little bit and he could understand them a little bit. This evidence does not raise a fact issue about whether Walters controlled the details of the work.
In addition, Flores contends the trial court should have denied 24 Hour’s motion for summary judgment due to the terms of the written Subcontract Agreement between Nationwide and 24 Hour. Flores attached a copy of the agreement to his summary judgment response. He cites language in the agreement that states, “Subcontractor [Nationwide] agrees to provide such Work under the general direction of Contractor [24 Hour].” Flores also relies on language stating that neither Nationwide nor its representatives shall hold themselves out as, or claim to be acting in the capacity of, an employee of 24 Hour. Finally, Flores refers to language in the agreement stating that the agreement shall not be construed to create a contractual relationship of any kind between anyone other than 24 Hour and Nationwide. This language is not inconsistent with the evidence that 24 Hour controlled the details of Flores’s work, and we conclude it does not raise a fact issue.
The workers’ compensation carrier for 24 Hour thus was responsible for the payment of workers’ compensation benefits to Flores. In return, 24 Hour was protected from common law liability under the exclusive remedy doctrine.
FOLIO
