Exclusive Remedy Defense Prevents Claim against Staffing Company’s Client

A Houston Court of Appeals has concluded that the exclusive remedy doctrine applies to prevent an employee of a temporary staffing company from suing the client company for allegedly causing his work-related injuries. In Webester v. GSE Lining Technology, No. 14-16-00841-CV (Dec. 21, 2017) the claimant worked for Aerotek, a temporary staffing company, and was assigned to work at one of its clients GSE, under a Temporary Staffing Service Agreement. The Temporary Staffing Service Agreement expressly provided that temporary employees assigned by Aerotek to GSE would perform services for GSE “under the direction, supervision, and control of GSE.” The agreement also provided that Aerotek would require its employees to acknowledge in writing that Aerotek and GSE were to be considered co-employers for purposes of the workers’ compensation laws, and workers’ compensation benefits under Aerotek’s policy would be the sole and exclusive remedy for damages resulting from bodily injury. The policies and procedures statement signed by the claimant contained these acknowledgements.

Following an injury, the claimant began receiving workers’ compensation benefits from Aerotek’s and GSE’s carrier. The claimant then filed the underlying lawsuit against GSE, asserting claims for negligence and gross negligence. The claims were based on theories of premises liability and “business invitee liability.” The trial court granted GSE’s motions for traditional and no-evidence motions for summary judgment, which were based, in part, on a theory of exclusive remedy.

The Court of Appeals affirmed the trial court’s judgment.

As part of its summary judgment evidence, GSE attached the affidavit of Edward Zimmel, its Vice President of Engineering, and a copy of the information page of its workers’ compensation insurance policy for the relevant time frame. This proof is sufficient to establish that GSE was a workers’ compensation insurance subscriber. See Martinez v. H.B. Zachry Co., 976 S.W.2d 746, 748 (Tex. App.— Houston [1st Dist.] 1998, pet. denied) (holding affidavit by claims manager swearing document attached to affidavit was true and correct copy of information page of workers’ compensation policy for its employees was sufficient); see also Price v. Uni-Form Components Co., No. 14-11-00902-CV, 2012 WL 2929493, at *4 (Tex. App.—Houston [14th Dist.] July 19, 2012, no pet.) (mem. op.) (same).

Webester does not dispute that GSE was a workers’ compensation insurance subscriber at the time of his accident. Instead, Webester points to language in the Temporary Staffing Service Agreement stating that employees assigned to GSE remain employees of Aerotek and shall not be entitled to participate in any GSE employment benefit plans, “including, but not limited to pension, 401(k), profit sharing, retirement, deferred compensation, welfare, insurance, disability, bonus, vacation pay, severance pay, and other similar plans, programs, and agreement….” Webester argues that the evidence places his employment status with GSE in dispute. But the language in the Temporary Staffing Service Agreement does not refute the undisputed evidence that GSE was a subscriber to workers’ compensation insurance. It does not state that temporary employees like Webester would not be covered under GSE’s workers’ compensation plan. And it could not do so. See Casados, 358 S.W.3d at 243 (explaining employers cannot split workforce by choosing workers’ compensation coverage for some but not all employees, absent limited statutory or common-law exceptions not applicable to facts in case); see also Johnson, 400 S.W.3d at 923 (“An employee cannot argue that his subscriberemployer has done what the law prohibits; rather, the employee is covered as a matter of law, and any dispute by the carrier over whether it agreed to provide such coverage under the policy’s terms is with the employer.”). The summary-judgment record conclusively establishes that GSE was a workers’ compensation subscriber.

CONCLUSION

The trial court properly determined that the exclusive-remedy provision of the TWCA bars all of Webester’s claims against GSE as a matter of law. GSE established that it was Webester’s employer for purposes of the TWCA at the time of the injury and that GSE maintained workers’ compensation insurance.