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

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       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
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                                      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.).

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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‘
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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.
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      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.




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