                            NUMBER 13-14-00404-CV

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

LUIS BALDEMAR RIOS                                                         Appellant,
HERNANDEZ a/k/a ARTURO
RIOS,

                                          v.

W-S INDUSTRIAL SERVICES INC.,                                               Appellee.


                   On appeal from the 156th District Court
                       of San Patricio County, Texas.


                        MEMORANDUM OPINION
              Before Justices Rodriguez, Garza and Longoria
                 Memorandum Opinion by Justice Garza

      By two issues, appellant Luis Baldemar Rios Hernandez a/k/a Arturo Rios (“Rios”)

challenges a summary judgment granted in favor of appellee, W-S Industrial Services,

Inc. (“WSI”). Specifically, Rios contends the trial court erred in: (1) granting summary
judgment because there was a genuine issue of material fact as to whether Rios was

WSI’s employee or borrowed servant; and (2) overruling Rios’s objections to WSI’s

summary judgment evidence. We affirm.

                                   I. BACKGROUND

      On November 14, 2011, Rios was injured when he fell while hydro-blasting a

washer tank at the Sherwin Alumina Company plant in Gregory, Texas.          Rios was

employed by A.R. Management (“ARM”), a temporary employment agency that supplied

workers to client companies, including WSI. WSI and ARM had an operating agreement

which generally outlined the parties’ duties and obligations regarding the workers. ARM

assigned Rios to work for WSI at the plant on the day he was injured. ARM and WSI both

carried workers’ compensation insurance.

      Rios sued WSI and various other parties related to the accident. WSI filed a

traditional motion for summary judgment on the ground that Rios’s negligence and gross

negligence claims against it were barred by the exclusive remedy provision of the Texas

Workers’ Compensation Act (“TWCA”). See TEX. LABOR CODE ANN. § 408.001 (West,

Westlaw through Ch. 46, 2015 R.S.) (providing that recovery of workers’ compensation

benefits is the exclusive remedy of an injured employee covered by workers’

compensation insurance against his employer). WSI attached the following evidence to

its motion: (1) the affidavit of Brian Swasey, WSI’s project manager; (2) the operating

agreement between ARM and WSI; and (3) WSI’s workers’ compensation policy. WSI

subsequently supplemented its motion twice, submitting as additional evidence: (1) the

affidavit of Frank Lynn, WSI’s Director of Risk Management and the author of the

operating agreement; (2) the affidavit of Bradley Schick, WSI’s insurance agent



                                           2
responsible for procuring WSI’s workers’ compensation policy; and (3) excerpts of

deposition testimony of Lynn and Rios.

       Rios objected to the trial court’s consideration of the operating agreement and

WSI’s workers’ compensation policy as summary judgment evidence on the ground that

neither document was properly authenticated. Rios argued that Swasey’s affidavit was

insufficient to authenticate the documents because Swasey admitted in his deposition

testimony that he had not seen either document prior to signing the affidavit and therefore

lacked knowledge as to whether the documents were true and correct copies. Rios also

complained that Swasey’s affidavit failed to comply with the requirements of Texas Rule

of Evidence 901, see TEX. R. EVID. 901, because it did not state that he was WSI’s

custodian of records or that the documents were kept in the regular course of business.

Rios later added additional objections to Swasey’s affidavit on the grounds that he was

an interested witness, the affidavit contained hearsay, and the affidavit contained legal

and factual conclusions.

       Rios objected to Schick’s affidavit, purporting to authenticate WSI’s workers’

compensation policy, on the ground that it did not comply with Rule 901 because it did

not state that Schick was the custodian of records for WSI, that the workers’

compensation policy was kept in the regular course of business, or that it was the regular

course of business for an employee with knowledge to make the record. Rios also argued

that Schick lacked the authority to authenticate the workers’ compensation policy because

he was merely WSI’s insurance agent, not the custodian of records for the insurer.

       By written orders, the trial court overruled Rios’s objections to WSI’s summary

judgment evidence.     The trial court granted WSI’s motion for summary judgment,



                                            3
dismissed Rios’s claims against WSI, and severed those claims from claims pending

against other defendants. This appeal followed.

                      II. STANDARD OF REVIEW AND APPLICABLE LAW

       We review summary judgments de novo. Joe v. Two Thirty Nine Joint Venture,

145 S.W.3d 150, 156 (Tex. 2004); Nalle Plastics Family Ltd. P’ship v. Porter, Rogers,

Dahlman & Gordon, P.C., 406 S.W.3d 186, 199 (Tex. App.—Corpus Christi 2013, pet.

denied). In reviewing a summary judgment, we must consider whether reasonable and

fair-minded jurors could differ in their conclusions in light of all of the evidence presented.

See Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007) (per

curiam). We must consider all the evidence in the light most favorable to the nonmovant,

indulging every reasonable inference in favor of the nonmovant and resolving any doubts

against the motion. See id. at 756. We affirm the summary judgment if any of the theories

presented to the trial court and preserved for appellate review are meritorious. Joe, 145

S.W.3d at 157.

       A defendant moving for summary judgment on an affirmative defense must prove

conclusively the elements of that defense. Pustejovsky v. Rapid-American Corp., 35

S.W.3d 643, 646 (Tex. 2000). “A defendant's motion for summary judgment based on an

affirmative defense must not be granted if the defendant fails to conclusively establish

each element of its affirmative defense.” Rico v. Judson Lofts, Ltd., 404 S.W.3d 762, 765

(Tex. App.—San Antonio 2013, pet. denied).

       The TWCA states that “[r]ecovery of workers' compensation benefits is the

exclusive remedy of an employee covered by workers' compensation insurance

coverage.” TEX. LAB. CODE ANN. § 408.001(a). This provision is an affirmative defense



                                              4
that, if proven, protects employers from certain common-law claims of their employees.

Judson Lofts, Ltd., 404 S.W.3d at 765. “An employee may have more than one employer

within the meaning of the TWCA, and each employer who subscribes to workers'

compensation insurance may raise the exclusive-remedy provision as a bar to claims

about the injury.” Port Elevator-Brownsville v. Casados, 358 S.W.3d 238, 242 (Tex.

2012). “[T]he exclusive-remedy provision bars claims by a temporary worker against a

client company if the client company establishes: (1) that it was the plaintiff’s employer

within the meaning of the TWCA, and (2) it subscribed to workers’ compensation

insurance.” Id. Thus, in the present case, WSI had the burden to prove the exclusive

remedy affirmative defense by establishing that: (1) it was Rios’s employer within the

meaning of the TWCA and (2) it subscribed to workers’ compensation insurance. See id.

       A trial court's decision as to whether evidence is properly authenticated is reviewed

under the same abuse of discretion standard as the admissibility of evidence. See

Angleton v. State, 971 S.W.2d 65, 67 (Tex. Crim. App.1998); Reavis v. State, 84 S.W.3d

716, 719 (Tex. App.—Fort Worth 2002, no pet.); Mega Child Care, Inc. v. Tex. Dep’t of

Protective & Regulatory Servs., 29 S.W.3d 303, 308 (Tex. App.—Houston [14th Dist.]

2000, no pet.). “A trial court abuses this discretion when it acts without regard for guiding

rules or principles.” U-Haul Int'l, Inc. v. Waldrip, 380 S.W.3d 118, 132 (Tex. 2012). The

ultimate test for authentication is always whether the proponent of the evidence has made

a showing sufficient to permit a reasonable juror to find that the evidence is what its

proponent claims. Reavis, 84 S.W.3d at 719; see TEX. R. EVID. 901(a). Thus, the trial

court does not abuse its discretion in admitting evidence where it believes that a




                                             5
reasonable juror could find the evidence has been authenticated or identified. Fluellen v.

State, 104 S.W.3d 152, 161 (Tex. App.—Texarkana 2003, no pet.).

        Rule 166a(f) requires that affidavits supporting or opposing summary judgment

must “be made on personal knowledge, shall set forth facts as would be admissible in

evidence, and shall show affirmatively that the affiant is competent to testify to the matters

stated therein.” TEX. R. CIV. P. 166a(f); see Ryland Grp., Inc. v. Hood, 924 S.W.2d 120,

122 (Tex. 1996). An affidavit must disclose the basis on which the affiant has personal

knowledge of the facts asserted. Radio Station KSCS v. Jennings, 750 S.W.2d 760, 762

(Tex. 1988). An affiant's position or job responsibilities can qualify the affiant to have

personal knowledge of facts and establish how the affiant learned of the facts. Valenzuela

v. State & Cnty. Mut. Fire Ins. Co., 317 S.W.3d 550, 553 (Tex. App.—Houston [14th Dist.]

2010, no pet.) (stating that affidavits demonstrating personal knowledge often state

affiant's knowledge through affiant's position and specifically described job duties).

                                       III. DISCUSSION

   A.      Rios’s Objections to WSI’s Workers’ Compensation Insurance Policy

        By his second issue, Rios contends the trial court erred in overruling his objections

to WSI’s workers’ compensation insurance policy because the policy was not properly

authenticated and was therefore improper summary judgment evidence. Rios argues that

WSI attempted to authenticate its workers’ compensation insurance policy through

Swasey’s affidavit; however, according to Rios, the affidavit failed to comply with the

requirements of Texas Rule of Evidence 901 and Swasey admitted in his deposition

testimony that he had no knowledge as to whether the policy was a true and correct copy

of the original.



                                              6
       Rios also argues that WSI attempted to authenticate its workers’ compensation

policy through Schick’s affidavit. Rios contends Schick’s affidavit is deficient because:

(1) it does not comply with the requirements of Rule 901; and (2) Schick lacked the

authority to authenticate the policy because he was merely WSI’s insurance agent and

not the custodian of records for the insurer.

       WSI concedes that neither Swasey’s nor Schick’s affidavit is a business records

affidavit, but argues that a business records affidavit was not required to authenticate the

workers’ compensation policy.

       Subsection (a) of Rule 901 states that the authentication requirement for

admissibility of evidence is satisfied by proof sufficient to support a finding that the matter

in question is what its proponent claims it is. TEX. R. EVID. 901(a). Subsection (b)

provides a nonexclusive list of methods to authenticate evidence. One example given is

the testimony of a witness with knowledge that a matter is what it is claimed to be. Id. R.

901(b)(1). The rule requires only a showing satisfying the trial court that the matter in

question is what its proponent claims. Llamas v. State, 270 S.W.3d 274, 281 (Tex. App.—

Amarillo 2008, no pet.).

       Swasey’s affidavit states, in relevant part:

             I am employed by [WSI]. My position with [WSI] is Project Manager,
       and I have held that position since March 2010. As such, it is my
       responsibility to be familiar with [WSI’s] insurance coverages, including
       worker's compensation coverage.

              ....

             On or about November 14, 2011, [WSI] was the named insured
       under a policy of worker's compensation insurance coverage issued by
       Granite State Insurance Company. A true and correct copy of the worker's
       compensation insurance policy is attached hereto as Exhibit B. The policy



                                                7
      extended to all of [WSI’s] operations in the state of Texas, including [WSI’s]
      work at the Facility.

      Attached to Swasey’s affidavit is a “Workers Compensation and Employers

Liability Policy” issued by Granite State Insurance Company. The named insured is WSI.

The policy period extends from August 1, 2011 to August 1, 2012, and therefore was in

effect at the time of Rios’s accident. Part One of the policy, which covers workers’

compensation insurance, is applicable to Texas, among other states. We hold this

evidence was sufficient to establish that WSI had workers’ compensation insurance at the

time of Rios’s injury. See Martinez v. H.B. Zachry Co., 976 S.W.2d 746, 748 (Tex. App—

Houston [1st Dist.] 1998, pet. denied) (holding that affidavit of Zachry's claims manager

swearing that the document attached to the affidavit was a true and correct copy of the

information page of workers' compensation policy covering the injured employee at the

time of the accident was sufficient to carry Zachry's burden to establish that it was a

subscriber).

      The burden shifted to Rios to present evidence creating a fact issue on whether

WSI was a subscriber. See id. Rios attempted to create a fact issue by submitting an

excerpt from Swasey’s deposition testimony, as follows:

      Q [Rios’s counsel]: All right, Mr. Swasey, sorry for the little break. Prior to
                          signing the affidavit that is attached to WSI's motion for
                          summary judgment, prior to that time had you actually
                          seen the workers' comp policy and the agreement
                          between A.R. Management and WSI?

      A [Swasey]:          No, not—no.

      Q:                   Mr. Swasey, it'd be fair to say, given the fact that you
                           had not seen either the workers' comp policy attached
                           to your affidavit or the agreement between A.R.
                           Management and WSI, it would be fair to say that you



                                            8
       wouldn't have any knowledge as to whether those were
       true and correct copies of the documents, correct?

A:     Real quickly, I just don't recall seeing it. So when I say
       I didn't see it, I don't recall. Maybe I did, maybe I didn't.
       But to answer your question right now, if I don't recall
       it, then I can't tell you whether it was accurate or
       anything to that effect.

Q.:    Okay. So it'd be fair to say that the documents that are
       attached to your affidavit, you can't tell us that those
       are true and correct copies of the originals, correct?

A:     I can't without looking at them now. I couldn't, no, sir.

Q:     Okay. Well, in all fairness, you would need to see the
       original to compare them to, correct?

A:     Correct, sir.

Q:     All right. And we've already established that you don't
       keep copies of the—or you don't keep the originals in
       your office, correct?

A:     Correct.

Q:     All right. And up until the time you signed the affidavit,
       you had—you don't recall having ever seen these
       documents before?

A:     I do not.

....

Q:     The—in the last paragraph, you talk about the policy
       extends to WSI’s operations. Do you see that? Talking
       about the workers’ comp policy.

A:     I do see it.

Q:     As far as the policy, what it covers and to the extent it
       covers, be fair to say that you don’t have any personal
       knowledge of that?

A:     That would be fair.



                         9
         We are unpersuaded that Swasey’s deposition testimony created a fact issue as

to whether WSI was a subscriber. “The requirement of authentication or identification as

a condition precedent to admissibility is satisfied by evidence sufficient to support a

finding that the matter in question is what its proponent claims.” TEX. R. EVID. 901(a);

Butler v. State, 459 S.W.3d 595, 600 (Tex. Crim. App. 2015); Mega Child Care, Inc., 29

S.W.3d at 308. “This has been aptly described as a ‘liberal standard of admissibility.’”

Butler, 459 S.W.3d at 600 (quoting Cathy Cochran, TEXAS RULES OF EVIDENCE HANDBOOK

922 (7th ed. 2007–08)). Rule 901 “does not erect a particularly high hurdle,” and “the

proponent of evidence does not need to rule out all possibilities inconsistent with

authenticity, or to prove beyond any doubt that the evidence is what it purports to be.”

Campbell v. State, 382 S.W.3d 545, 549 (Tex. App.—Austin 2012, no pet.); see also

Jackson v. State, No. 05-14-00274-CR, 2015 WL 3797806, at *2 (Tex. App.—Dallas June

17, 2015, no pet. h.) (mem. op.) We conclude that the trial court did not abuse its

discretion in overruling Rios’s objections to the workers’ compensation policy or in finding

that the workers’ compensation policy attached to Swasey’s affidavit was, in fact, WSI’s

workers’ compensation policy for the applicable period. The trial court did not abuse its

discretion in admitting the policy. We overrule Rios’s second issue.1

    B.       Rios’s Status as WSI’s Employee or Borrowed Servant

         By his first issue, Rios argues that there was a genuine issue of material fact as to

whether Rios was WSI’s employee or borrowed servant. Specifically, Rios argues that:

(1) there is a fact issue as to whether WSI actually controlled the details of Rios’s work,

thereby establishing that Rios was WSI’s borrowed servant; and (2) there is a fact issue


         We do not address WSI’s argument that its workers’ compensation policy was also authenticated
         1

by Schick’s affidavit because the policy attached to Schick’s affidavit named ARM as the insured, not WSI.

                                                   10
as to Rios’s status as WSI’s employee or borrowed servant because the agreement

between ARM and WSI stated that personnel provided by ARM were “the exclusive

employees and work[ed] under the direction of” ARM.

       We begin with Rios’s second argument: that the written agreement created a fact

issue as to whether Rios was WSI’s borrowed servant because it stated that the personnel

provided by ARM are ARM’s exclusive employees and work under ARM’s direction. The

contract states, in relevant part, that “personnel provided by [ARM] are the exclusive

employees and work under the direction of [ARM] . . . .” We are unpersuaded by Rios’s

argument.

       In Exxon Corporation v. Perez, the Texas Supreme Court found that a contract

between two employers providing that one shall have the right of control over certain

employees is a factor to be considered in determining an employee’s status, but it is not

controlling. 842 S.W.2d 629, 630 (Tex. 1992). This Court has held that “a contractual

designation of control will not establish borrowed servant status as a matter of law where

evidence shows that the parties acted to the contrary.” Coco v. Port of Corpus Christi

Authority, 132 S.W.3d 689, 692–93 (Tex. App.—Corpus Christi 2004, no pet.). “[A]

general employee of one employer becomes the borrowed employee of another

‘employer’ if the other special employer has the right to direct and control the employee

with respect to the details of the particular work at issue.” Lockett v. HB Zachary Co., 285

S.W.3d 63, 76 (Tex. App.—Houston [1st Dist.] 2009, no pet.).

       In support of his argument that the contract created a fact issue on the “right of

control,” Rios cites Hoffman v. Trinity Industries, Inc. 979 S.W.2d 88 (Tex. App.—

Beaumont 1998, pet. dism’d by agr.). In Hoffman, the plaintiff worked for a temporary



                                            11
employment agency that assigned him to work for one of its clients. Id. at 89. The

summary judgment evidence established that the client company controlled the details of

the plaintiff’s work. Id. at 91. However, the contract between the agency and the client

provided that the agency would have “complete and sole control over its employees, the

details of the services and methods by which the services are accomplished.” Id. The

Hoffman Court concluded that the contract was a “factor to be considered” and that the

express language of the contract created a fact issue as to whether the plaintiff was the

client company’s borrowed servant. Id.

        We find Hoffman distinguishable.            In Hoffman, the contract stated that the

temporary agency had the right to control “the details of the services and methods by

which the services are accomplished.” Id. In contrast, the agreement between ARM and

WSI merely states that employees work under ARM’s “direction”; the contract is silent as

to which company had the right to control the details of work performed for WSI. At his

deposition, Lynn, who drafted the agreement for WSI, was questioned regarding the

language in the agreement that personnel provided by ARM work under ARM’s direction.

Lynn stated that “[ARM] directs [ARM personnel] where to report for work. That’s the end

of their involvement in their direction.”2 We conclude that the “work under the direction”

language of the agreement is distinguishable from the right to control “the details of the

services and methods” language in Hoffman and that the contract language therefore

does not raise a fact issue regarding whether WSI had the right to control Rios’s work.




        2 Although Rios objected to Lynn’s deposition testimony on the ground that Lynn was not present

on the day of the accident and lacked personal knowledge regarding any instructions to Rios, we conclude
that, as the author of the agreement, he had personal knowledge of the intent of the language in the
agreement.

                                                  12
        Rios also argues that there is a fact issue as to whether WSI actually controlled

the details of his work.

                [A] general employee of one employer becomes the borrowed
        employee of another “employer” if the other special employer has the right
        to direct and control the employee with respect to the details of the particular
        work at issue. The test examines whether the borrowing employer has the
        right to control the progress, details, and methods of operations of the work.
        The borrowing employer must control not merely the end sought to be
        accomplished, but also the means and details of its accomplishment.

Lockett, 285 S.W.3d at 76 (internal citations omitted). In determining whether a right of

control exists, courts consider the nature of the work to be performed, the length of the

employment, the type of machinery furnished, the acts representing an exercise of actual

control, and the right to substitute another operator on a machine.                    Phillips v. Am.

Elastomer Products, L.L.C., 316 S.W.3d 181, 187 (Tex. App.—Houston [14th Dist.] 2010,

pet. denied).

        The type of control normally exercised by an employer includes determining
        when and where to begin and stop work, the regularity of hours, the amount
        of time spent on particular aspects of work, the tools and appliances used
        to perform the work, and the physical method or manner of accomplishing
        the end result.
Id.

        Rios argues that WSI cannot rely on Swasey’s affidavit or Lynn’s deposition

testimony because neither had personal knowledge of any instructions given to Rios on

the day he was injured.3 We need not discuss Rios’s challenges to Swasey’s and Lynn’s

statements, however, because Rios’s own testimony, which follows, established that WSI

had the right to control—and did, in fact, control—the details of his work.

        Q. [Sherwin’s counsel]: The supervisor that you were telling me about
                                earlier who worked on your crew at the time of your
                                accident, who was that again?

        3 In Swasey’s affidavit and in Lynn’s deposition testimony, both stated that WSI had the right to
direct and control Rios with respect to the details of his work.

                                                   13
A. [Rios]   The one that was with me, the crew leader?

Q.          Yes.

A.          Jimmy Garcia.

Q.          And was Mr. Garcia the person in charge for WSI in
            that tank when you were working?

A.          Uh-huh.

Q.          Yes?

A.          Yes.

....

Q.          But Mr. Garcia was the person that gave you
            instructions or directions about how to do your
            hydroblasting in the tank; is that right?

A.          Yes, because before we came in, he would tell us
            what could happen.

Q.          All right. And WSI had been hired to come in there
            and basically clean the inside of the tanks; is that
            right?

Q.          What I mean—and I didn't ask a very good
            question. The only people that were inside the tank
            at the time of your accident were the WSI crew; is
            that right?

A.          Yes, Jimmy was a WSI employee.

Q.          There was nobody from Sherwin Alumina who was
            instructing you about how to perform your
            hydroblasting job; is that right?

A.          It was just us two there.

Q.          You and Mr. Garcia; is that right?

A.          Yes, and the watchman, but he was by the door, but
            not inside.

                         14
Q.     But what I'm asking, sir, is: Nobody from Sherwin
       Alumina was inside the tank telling you how to do
       your hydroblasting job; is that right?

A.     No.

Q.     But that's correct, they weren't doing that?

A.     That is correct, they were not there.

Q.     The hose that you were using, was that a WSI
       hose?

A.     Yes.

Q.     The tools and equipment that you would use, would
       that be WSI equipment?

A.     Yes.

Q.     The hard hats and any safety equipment that you
       used, was that WSI's equipment?

A.     Yes, WSI.

....

Q.     [WSI’s counsel]: On the day of the accident, you
       were working with the WS Industrial crew, correct?

A.     Yes.

Q.     And you were taking directions from the crew
       leader, Jimmy Garcia?

A.     Yes.

Q.     Mr. Garcia told you when you were going to work,
       right?

A.     Yes.

Q.     Mr. Garcia told you what work you were going to
       do?



                   15
         A.                      Yes.

         Q.                      Mr. Garcia told you how he wanted you to do the
                                 work?

         A.                      Yes.

         Q.                      And Mr. Garcia could send you home if he didn't like
                                 your work?

         A.                      Yes.

         Q.                      You were working that day under the direction of
                                 Mr. Garcia?

         A.                      Yes.

         We conclude that Rios’s testimony established conclusively that WSI had the right

to control, and did control, the details of Rios’s work. See Phillips, 316 S.W.3d at 187.

Rios presented no evidence raising a fact issue as to WSI’s right to control. Accordingly,

the evidence established that Rios was WSI’s borrowed employee, and the trial court

correctly ruled that WSI was an employer for purposes of asserting the exclusive remedy

provision of the TWCA. See Lockett, 285 S.W.3d at 76–77. We overrule Rios’s first

issue.

         We hold that WSI met its burden to establish that: (1) it was Rios’s employer within

the meaning of TWCA; and (2) it subscribed to workers’ compensation insurance. See

Port Elevator, 358 S.W.3d at 242. WSI thus established that Rios’s claims were barred

by the exclusive remedy provision, and the trial court did not err in granting summary

judgment on those grounds. See id.

                                        IV. CONCLUSION

         We affirm the trial court’s judgment.




                                                 16
                                 DORI CONTRERAS GARZA,
                                 Justice


Delivered and filed the
31st day of August, 2015.




                            17
