AFFiRM; )pinion issued Noveniber 9, 2012.




                                           in The
                            Qi,iirt UI Aj.1pra15
                       ‘‘! igti Itt UI (‘CW at Jtt1d5
                                    No. 05-1 1-00637-CV


                 Ml 1)-CONTINENT CASUALlY CoMPANY, Appellant



         ANI)RIZCG CONTRACTING, INC. AND BACILO ZAPA1A, Appellees


                         On Appeal from the 366th 1)istrict Court
                                 Coilin County, Texas
                          r[il
                              Court Cause No. 366-02241-2008


                                       OPINION
                        Before Justices Bridges, Richter, and Lang
                               Opinion By Justice Richter

       This case arises out of an injury suffered by Bacilio Zapata while performing tree

cutting services for Andregg Contracting, Inc.(”Andregg”). The trial court concluded

Zapata was an independent contractor, and therefore, under a commercial general liability

(CGL”) policy issued to Andregg. by Mid-Continent Casualty Company (“MCC”), MCC

owed a duty to indemnify Andregg for the injury. in two issues on appeal, MCC contends

the trial court erred in its determination because Zapata was not an independent contractor,

but rather an employee for whom coverage was excluded under the policy. Concluding

appellant’s arguments are without merit, we affirm the trial court’s judgment.
                                                 BACKGROUND

         Andregg is a general contractor that performs primarily excavation and demolition

work. For the eighteen years it has been in business. Andrcgg has used subcontractors for

 100% of its work.

         Beginning in 2003 and through the relevant time period, Andregg was insured by

MCC under a CGL policy. The policy contains two coverage exclusions to which the policy

does not apply. The first exclusion applies to a loss that is covered by or should be covered

by worker’s compensation. The second exclusion applies to bodily injury sustained by an

employee while acting in the course and scope ofemployment.’ Evezyyeai, MCC performed

a premium audit of Andregg, and each year the audit report stated that “the insured uses all

subs for their work. All subs reviewed with insured.”

         Andregg hired Zapata to work on two demolition jobs within walking distance of

each other. For a three week period, Zapata performed a variety of manual labor tasks.

Toward the end ofthe second project, Zapata was injured while working to take down a tree.

         Zapata filed suit against Andregg for personal injuries (the “underlying lawsuit”).

The underlying lawsuit was tried to a jury, and the jury found Andregg liable to Zapata for

negligence. The final judgment in the underlying lawsuit awarded Zapata $362,987.48.

         MCC subsequently filed a declaratory judgment action against Andregg and Zapata

seeking a declaration of whether it owed a duty to indemnify Andregg for the finaljudgment



   ‘According to MCC, the two exclusions work in tandem. Thus, lithe trial court had found Zapata to be an employee.
both exclusions would have applied to preclude coverage.




                                                       —2—
in the underlying lawsuit. ‘Ube case was tried to the bench, and the trial court found that

MCC owed a duty of indemnity to Andregg. The trial court subsequently signed findings of

fact and conclusions of law. The court’s conclusions     —   that Zapata was an independent

contractor rather than an employee, and as a result, MCC owed Andregg a duty of indemnity

under the CGL policy   —   form the basis ofthis appeal.

                                         ANALYSIS

        In two issues, MCC asserts the trial court’s findings are not supported by the

evidence and the trial court failed to properly apply the controlling law. Because the trial

court entered findings of fact and conclusions of law following a bench trial, we afford the

findings of fact the same force and effect as jury findings. See Buckeye Ret Co.. LLC Ltd

v. Bank of Am., MA., 239 S.W.3d 394, 399 (L’ex. App.—Dallas 2007, no pet). To

successfully challenge the factual sufficiency of an adverse finding, MCC “must

demonstrate the adverse finding is against the great weight and preponderance of the

evidence.” Id. In reviewing such a challenge, we consider and weigh all ofthe evidence, and

set aside a verdict only if the finding is so against the great weight and preponderance ofthe

evidence that it is “clearly wrong and unjust” Id. To successfully challenge the legal

sufficiency of the trial court’s findings, MCC must show that “the evidence establishes, as

a matter of law, all vital facts in support of the issue.” Id. Within this framework, we

consider MCC’s assertions of error.




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         The crux of MCC’s argument is that Zapata was not an independent contractor.
                                                                          2A

worker’s status as an employee or independent contractor depends on        whether the employer

has “the right to control the progress, details, and methods of operations        of   the work.”

Limestone Products Distribution, Inc. v. McNamara, 71 S.W.3d 308, 312 (Tex. 2002).

“Control” as would define a relationship as one of employer/employee is control over the

details of the work itself and the worker’s physical conduct, not simply the end result.”

United States Fit & Guar. Co. v. Goodson, 568 S.W.2d 443, 447 (Tex. Civ.

App.—Texarkana 1978, writ reid n.r.c.). The employer must control not merely the end

sought, “but also the means and details of its accomplishment.” Limestone, 71 S.W.3d at

312. Examples include when and where to begin and stop work, the regularity ofhours, the

amount of time spent on particular aspects of the work, the tools and appliances used to

perform the work, and the physical method or manner of accomplishing the end result

Thompson v. Traveleni Indemnity Company of Rhode Island. 789 S.W.2d 277, 278—79

(Tex. 1990).

        Texas courts generallyconsider five factors when analyzing whetheran employerhas

a right to control a person’s work: (1) the independent nature of the worker’s business; (2)

the worker’s obligation to fbrnish the necessaiy tools, supplies, and materials to perform the

job; (3) the worker’s right to control the progress of the work except about final results; (4)

the time for which the worker is employed; and (5) the method of payment, whether the

worker is paid by unit oftime or by the job. Limestone, 71 S.W.3d at 312 (citing Pitchfork


   2
   T herc is no dispute that the policy excludes coverage for employees.




                                                      -4-
[(1,1(1 &   Cult/c’   ( ompunv   i.   King. 346 SAV2d 59g. 603 (1 96 I )): see also IIoc’cIist (‘e/anese

(   olporulton i’.    Compton. $‘)9 S.W.2d 2 1 5, 220 (Tex. App.-- I louston 14th [)ist. I 994, writ
                                                                       -




denied) (same). “It is not necessary that each of the above factors be present to find that the

worker is an independent contractor.” Thompson, 789 S.W.2d at 278—79. It is seldom that

any one of these elements is decisive of the question. See Farrell v. Greater Houston

Transp.     (‘..   9O S.W.2d I 3 (Tex. App.—---I-louston [1St Dist.] I 995, writ denied). An
                                       ,




employer may give direction as to the specifications ofa job, details such as the position of

a structure, or the character of materials and workmanship, and still maintain an independent

contractor relationship. Goodson, 568 S.W,2d at 447,

         Consideration of the first and third Limestone factors            —   the independent nature of

the worker’s business and the worker’s right to control the progress of his work            ——   supports

the conclusion that Zapata was an independent contractor. The trial court found that Zapata

was hired to perform clean up work on two excavation job sites over a three week period.

The evidence adduced at trial reflects, and the trial court found that no one supervised the

details of the cleanup work Zapata performed. At the beginning of the project, Mark

Andregg explained the results he wished to accomplish. Then, Zapata was free to determine

how he would separate the trash, where he would put the piles, how he would move the

trash, and whether he would bring his own equipment and tools to separate the trash. Zapata

was also afforded discretion to distinguish between items to be salvaged and those to be

hauled away to a trash dump. Zapata established his own hours, and would usually show up

when his bus arrived near the job site. Zapata was not required to wait for Mark Andregg
or anyone else to arrive, and typically, there was no one present when Zapata arrived and

began worlc

       Zapata was assisting with the removal ofa tree when he was injured. Although MCC

argues Andregg asserted additional control over this particular task, the record supports the

trial court’s rejection of this argument The trial court found that while Mark Andregg

provided guidance on how to make certain cuts, Zapata was free to cut the tree as he pleased.

Mark Andregg was operating an excavator at the time Zapata was injured.

       The trial court also found that Andregg used independent contractors for almost all

of its work and this was standard in the industzy. Moreover MCC was aware that Andregg

used contract labor in accordance with the industry standard. The evidence reflects that

MCC perfonned four premium audits of Andregg beibre the underlying suit was filed. The

MCC auditor testified that most of MCC’s insureds use sub-contractors. The auditor also

testified about his audit reports, whicb state that Andregg uses “all subs” for their work and

list the subcontractors by name. The audit immediately before the underlying lawsuit

specifically identifies Zapata among the Andregg subcontractors.

       The second Limestone factor requires consideration of the worker’s obligation to

furnish the tools, supplies, and materials necessary to perform the job. The trial court found

that most of the work Zapata performed did not require tools; Zapata’s work was primarily

performedwith his hands. Nonetheless, the trial court found thatZapata “borrowed” a ladder

and a chainsaw from Andregg for the tree removal. While there is no dispute that Andregg

supplied the ladder and the chainsaw, MCC challenges this finding as against the great




                                            -6-
weirhi and preponderance of the evidence because the court characterized the too Is as

horrowcd” rather than provided.” This semantic distinction, however. is one without a

difference, Even if Andregg “provided” toots for this isolated, single task, the fact remains

that tools were not required for the majority of the tasks Zapata performed. Therefbre, this

lactor adds very little to the analysis of Zapata’s status.
                                                    3

         Next we consider the length of time Zapata was employed and the method by which

he was paid. The trial court found and the record reflects that Zapata was hired for a short-

term contract to perform clean up work on two properties Andregg was excavating. Both

Zapata and Andregg intended this to be a short—term project, and Zapata was not promised

any more work after the two projects ended. Neither Zapata nor Andregg intended that

Zapata would work on any projects other than the two excavation job sites for which he had

been hired. Zapata testified that he planned to take ajob in the restaurant industry when the

project was over. When Zapata was injured, he was on the last day of the short-term project

that lasted less than five weeks.

         The record also supports the trial court’s findings regarding the financial relationship

between Andregg and Zapata. Zapata was paid the industry rate for contract labor.

Andregg’s payments to Zapata were not made on a regular basis. Instead, Zapata was paid

as portions of the project were completed. As it did with all of the subcontractors it hired,

Andregg provided Zapata with an IRS form 1099. Andregg did not withhold any taxes or


      We also reject similar semantic challenges to the trial courts findings. For example, MCC argues the court
improperly used the term ‘contract” to describe the relationship between Zapata and Andregg because there was no
evidence of a written contract. Notwithstanding the absence of a writing, the record reflects that Zapata agreed to
perform services for which Andregg agreed to compensation.




                                                       —7
socuil security or provide Zapata with vacation or other benefIts, and did not pay into the

Texas unemployment fund on Zapata’s behalf,

       Despite the fact that the limestone flictors weigh heavily in support of the trial court’s

conclusion that Zapata was an independent contractor, MCC insists the trial court misapplied

the law. According to MCC, application of the Limestone factors to determine Zapata’s

status can only be accomplished by focusing on the specific task Zapata was performing at

the time ol the accident. Thus. MCC seeks to have us isolate the single task of tree trimming

and conduct the Limestone analysis only with reference to that task. We do not view the

jurisprudence of this state to mandate such a strained and narrow application.

       MCC’s argument is premised on Ochoa v. Winerich Motor Sales, 127 Tex. 542, 94

S.W.2d 416. 418 (‘fex. 1936). This reliance on Ochoa is misplaced.

       In Ochoa, the court held that an individual who occasionally dropped by a local auto

dealership to work as a mechanic was an employee rather than an independent contractor.

In so concluding, the court found the individual had no continuous employment and “each

job or task given him was separate employment” Id. The court held that “the nature of the

particular employment during the performance of which the accident occurred rather than

that of several prior employments, whether as independent contractor or as servant or

employee” was determinative of the dealership’s liability. Id.

      But Ochoa does not stand for the proposition that each separate task performed

during a working relationship is subject to individual analysis. Such an unworkable

construct is not conducive to meaningful analysis, and conceivably could result in an




                                             —8—
individual shilling between employee and independent contractor status countless times in

a given work day, The trial court properly declined to conduct the Limestone analysis in such

a vacuum.

        In addition, the facts in Ochoa are clearly distinguishable from the facts in the instant

case. Unlike Ochoa. this case does not involve several distinct periods of         employment.


Instead. Zapala was retained for two projects to be performed over a single period of time.

The projects involved demolition, and the sorting and removal of demolition refuse, with

the tree removal being only one of several tasks to be accomplished in the overall scope of

the assignment.

       The Fifth Circuit recently considered a similar case involving the same MCC policy

exclusions at issue here. See Mn/—Continent C’asual(v Co. v. Davis, 6S3 F.3d 651, 655 660

(5th Cir. 2012), In Davis, the family of a construction worker who fell while framing a

building brought a wrongful death action against the construction company. The

construction company had a CGL policy with MCC that contained the same worker’s

compensation and employer’s liability exclusions as in this ease. Id. at 654. MCC filed a

declaratory judgment action seeking a declaration that it had no duty to indemnify the

construction company in the wrongful death case because the worker was an employee

rather than an independent contractor. id. The district court rejected MCC’s argument, and

concluded MCC owed a duty of indemnity because the worker was an independent

contractor. id.




                                               9.
        The Filth Circuit affirmed the district court’s judgment. Id. at 660. Applying the

Limestone factors, the court concluded the worker was properly characterized as an

independent contractor, and therefore the claimed policy eNclusions (lid not apply. Id. at

655—660. Significantly, the court applied the Limestone factors to the entire relationship

between the worker and the company, rather than to the single task that occasioned the

injury. 1(1.

        For the reasons stated above, we conclude the trial court properly applied the

Limes tone tactors and the evidence conclusively established that Zapata was an independent

contractor rather than an employee, Therefore, the trial court’s determination that MCC

owes Andregg a duty to indemnify it for the judgment in the underlying lawsuit is not in

error. MCC’s issues are overruled. The judgment of’ the trial court is affirmed.




                                                  Mi\RIIN RICHTER
                                                  JUSTiCE

1 10637F.P05




                                          —10--
                                 (Cniirt nf :\vtica1
                         !Fi1t1 Jitrirt uf iixa; at a11Lu

                                         JUDGMENT
MlDCONTlN ENT CASUALTY                                Appeal from the 36(th District Court of
COMPANY, Appellant                                    Cohn County, Texas. (Tr.Ct.No. 366-
                                                      02241-2008).
No. 05 I I 00637CV             V                      Opinion delivered by Justice Richter,
                                                      Justices Bridges and Lang participating.
ANDRLGC; C’ ()NTRACTING lN(’. ANt)
BACILIO ZAPATA, Appellecs

      In accordance with lb is Court’s Opinion of this date, the judgment of the trial court is
AFFIRMFD. it is ORDER1) that appellees ANDREGG CONTRACTING INC. AND
BACILIO ZAI>ATA recover their costs of this appeal from appellant MID-CONTINENT
(ASUAL1Y (OMPANY


Judgment entered November 9, 2012.




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