                                                                                         ACCEPTED
                                                                                     08-14-00134-CV
                                                                         EIGHTH COURT OF APPEALS
                                      08-14-00134-CV                                EL PASO, TEXAS
                                                                              12/18/2015 11:55:11 AM
                                                                                  DENISE PACHECO
                                                                                              CLERK

                            NO. 11-12-00322-CV
                          IN THE COURT OF APPEALS                  FILED IN
                                 FOR THE                8th COURT OF APPEALS
                EIGHTH COURT OF APPEALS DISTRICT OF TEXAS EL PASO, TEXAS
                                                       12/18/2015 11:55:11 AM
                             EL PASO, TEXAS
                                                                 DENISE PACHECO
                                                                    Clerk

   STEVEN PAINTER; TONYA WRIGHT, Individually and as Representative of the
ESTATE OF EARL A. WRIGHT, III, DECEASED; VIRGINIA WEAVER, Individually and
     As Next Friend of ALBERT A. CARILLO, A MINOR; TABITHA R. ROSELLO,
Individually and as Representative of the ESTATE OF ALBERT CARILLO, DECEASED
                                                       Appellants,
                                     V.


                         AMERIMEX DRILLING I, LTD.
                                                     Appellee.

  ON APPEAL FROM THE 83D JUDICIAL DISTRICT COURT, PECOS COUNTY, TEXAS

                   APPELLANTS’ MOTION FOR REHEARING


David W. Lauritzen                        Rahul Malhotra
State Bar No. 00796934                    State Bar No. 00797781
DLauritzen@CBTD.com                       Rahul@TheMalhotraLawFirm.com
COTTON, BLEDSOE, TIGHE & DAWSON, PC       THE MALHOTRA LAW FIRM
P.O. Box 2776                             319 North Grant Avenue
Midland, Texas 797002-2776                Odessa, Texas 79761
P: 432.685.5782 | F: 432.682.3672         P: 432.580.4878 | F: 432.337.7283

Jon Hanna
State Bar No. 08919200
JHanna7534@aol.com
HANNA LAW FIRM, PC                          ATTORNEYS FOR APPELLANTS
302 Chestnut Street
Abilene, Texas 79704
P: 325.673.6952 | F: 325.673.4496

                             DECEMBER 18, 2015
                             IDENTITY OF PARTIES AND COUNSEL


        To the best of Appellants’ knowledge, the following is a complete list of
parties and counsel to the judgment being appealed, as required by Texas Rule of
Appellate Procedure 38.1(a).


 Presiding Judge:                    The Honorable Pete Gomez, Jr.
                                     83d Judicial District Court
                                     Pecos County, Texas

 Appellants:                         STEVEN PAINTER;
                                     TONYA WRIGHT, Individually and as Representative
                                     of the ESTATE OF EARL A. WRIGHT, III, DECEASED;
                                     VIRGINIA WEAVER, Individually and As Next Friend
                                     of ALBERT A. CARILLO, A MINOR;
                                     TABITHA R. ROSELLO, Individually and as
                                     Representative of the ESTATE OF ALBERT CARILLO,
                                     DECEASED

 Trial & Appellate                   Jon Hanna
 Counsel:                            State Bar No. 08919200
     STEVEN PAINTER;                 JHanna7534@aol.com
                                     HANNA LAW FIRM, PC
     TONYA WRIGHT,                   302 Chestnut Street
     Individually and as             Abilene, Texas 79704
     Representative of the           P: 325.673.6952 | F: 325.673.4496
     ESTATE OF EARL A.
     WRIGHT, III,
     DECEASED




Painter v. Amerimex Drilling—Mot. Rehearing                                       Page 2
 Trial & Appellate                   Rahul Malhotra
 Counsel:                            State Bar No. 00797781
     VIRGINIA WEAVER,                Rahul@TheMalhotraLawFirm.com
     Individually and As             THE MALHOTRA LAW FIRM
     Next Friend of ALBERT           319 North Grant Avenue
     A. CARILLO, A MINOR;            Odessa, Texas 79761
                                     P: 432.580.4878 | F: 432.337.7283
     TABITHA R. ROSELLO,
     Individually and as
     Representative of the
     ESTATE OF ALBERT
     CARILLO, DECEASED

 Appellate Counsel for All           David W. Lauritzen
 Appellants:                         State Bar No. 00796934
                                     DLauritzen@CBTD.com
                                     COTTON, BLEDSOE, TIGHE & DAWSON, PC
                                     P.O. Box 2776
                                     Midland, Texas 797002-2776
                                     P: 432.685.5782 | F: 432.682.3672

 Appellees:                          AMERIMEX DRILLING I, LTD.

 Trial & Appellate                   Karen C. Burgess
 Counsel:                            RICHARDSON + BURGESS, LLP
                                     221 West 6th Street, Suite 900
                                     Austin, Texas 78701-3445




Painter v. Amerimex Drilling—Mot. Rehearing                                Page 3
TO THE HONORABLE COURT OF APPEALS:
        APPELLANTS, STEVEN PAINTER; TONYA WRIGHT, Individually and as
Representative of the ESTATE             OF    EARL A. WRIGHT, III, DECEASED; VIRGINIA
WEAVER, Individually and As Next Friend of ALBERT A. CARILLO, A MINOR; and
TABITHA R. ROSELLO, Individually and as Representative of the ESTATE OF ALBERT
CARILLO, DECEASED file this Motion for Rearing.
                               I.      GROUNDS FOR REHEARING
        Appellants respectfully request a rehearing because the Court’s Opinion
focuses on the employer’s control, but the focus is properly on whether the driver
was furthering the interests of his employer at the time of the incident. The Opinion
moots employer vicarious liability by imposing an impractical control standard,
never before applied to direct employers.                  Amerimex Drilling I, Ltd.’s
(“Amerimex”) employee, Mr. Burchett, was acting in the course and scope of his
employment and furthering Amerimex’s business interests at the time of the
dreadful, deadly incident.
                                         II.    ARGUMENT
    A. Driving the crew was part of Amerimex’s contractual obligation.
        The Amerimex-SandRidge Contract (also, the “Contract”) identifies,
particularizes, and covers the business services Amerimex was to perform as part of
Amerimex’s regularly conducted business operations for SandRidge. See R. at 94–
106 (Amerimex Mot. Sum. J., Ex. C (Jun. 25, 2012)). The Contract was signed by
Glen Murphree, Amerimex’s Chief Financial Officer (“CFO”). Id. at 100. The
Contract was intended to further the business interests of the contracting parties.
        The Amerimex-SandRidge Contract clearly identifies driving the crew to and
from the wellsite as part of Amerimex’s duties under the contract. Id. at 99,
§ 27.9(B). The Contract commands Amerimex to have its Driller ferry the crew
working on the SandRidge well. Id. The contract explicitly states: Amerimex “shall

Painter v. Amerimex Drilling—Mot. Rehearing                                      Page 4
invoice … [SandRidge] for and pay each Driller to receive $50/day to drive crew
out to well location.” Id. That is clear, unambiguous language within the four-
corners of the document.
        None of the cases cited or relied upon by this Court in its Opinion have that
particular and highly relevant fact. Burchett and his crew did not simply decide to
carpool out of a self-interest or on their own volition. No, quite the contrary,
Amerimex definitively agreed and contractually promised SandRidge that
Amerimex would have the Amerimex Driller ferry the Amerimex crew.
    B. This Court incorrectly concluded Appellants’ arguments.
        1. Remote drilling site has nothing to do with the coming and going rule.
        This Court incorrectly “discern[ed]” that Appellants contend “the nature of
remote drilling sites presents an exception to the general rule … [that] coming from
or going to work is not within the course and scope of employment.” Op., p. 6. The
reason Mr. Burchett was within the course and scope of employment was because
he was executing a contractual provision on behalf of and for his employer. See R.
at 99, § 27.9(B). The Amerimex-SandRidge contract required Amerimex to pay an
Amerimex Driller to transport the Amerimex crew to and from the SandRidge
wellsite. Id. At the time of the incident, Burchett was doing that —taking the
Amerimex crew back to the bunkhouse.
        The whereabouts of the bunkhouse is irrelevant. Whether the crewmembers
could take their own vehicles or not is irrelevant. Whether the crewmembers could
stop for a meal en route is irrelevant. The clear, unambiguous language of the
contract controlled Amerimex’s actions. See R. at 99, § 27.9(B). The contract
specifically required Amerimex’s Driller to transport the Amerimex Crew to and
from the drilling site. Id. Therefore, when Mr. Burchett was driving the Amerimex
Crew at the time of the incident, he was performing Amerimex’s contractual
obligation; he was furthering Amerimex’s business interests.

Painter v. Amerimex Drilling—Mot. Rehearing                                     Page 5
        2. The reason for the “car-pooling arrangement” is unconnected to
           vicarious liability.
        This Court (wrongly) concluded that it is Appellants’ contention that “the car-
pooling arrangement was in furtherance of Amerimex’s business as it ensured that
a complete crew came [sic] to the drilling rig each day.” Op., p. 6 (emphasis added).
Not so. The reason the so-called “car-pooling arrangement” was in furtherance of
Amerimex’s business interests was because it was the execution of Amerimex’s
contractual obligation under the Amerimex-SandRidge contract. See R. at 99,
§ 27.9(B).
    C. The “most frequently offered reason” means it is not the only reason to
       impose vicarious liability.
        Relying on Baptist Memorial Hospital System v. Sampson, 969 S.W. 2d 945,
947 (Tex. 1998), this Court correctly noted an employer is vicariously liable for the
negligence of an employee when the employee acts within the course and scope of
their employment. See Op., p. 8. This Court also admitted that “[t]here are a number
of possible justifications for this rule.” Id. But, it then stated that the “most
frequently offered reason for imposing vicarious liability” arises out of control of
the employee by the employer.                 Id.   This Court relied on Comment D to
RESTATEMENT (SECOND) OF AGENCY § 220 to support that contention. Id. However,
Comment D states:
        …. [T]he control or right to control needed to establish the relation of
        master and servant may be very attenuated. In some types of cases
        which involve persons customarily considered as servants, there may
        even be an understanding that the employer shall not exercise
        control. Thus, the full-time cook is regarded as a servant although it is
        understood that the employer will exercise no control over the cooking.

RESTATEMENT (SECOND) OF AGENCY § 220, cmt. D (1958) (emphasis added). So,
when this Court then applied overt control as the only possible reason to impose
vicarious liability, the Court overstepped both reason and evidence. See Op., p. 8.

Painter v. Amerimex Drilling—Mot. Rehearing                                         Page 6
        “To impose vicarious liability on the principal, the proper inquiry for agency
is whether the agent was acting within the scope of the agency relationship at the
time of the wrongful act” Bell v. VPSI, Inc., 205 S.W.3d 706, 714 (Tex. App.—Fort
Worth 2006, no pet.) (citing Celtic Life Ins. Co. v. Coats, 885 S.W.2d 96, 100 (Tex.
1994)). The requirements to prove course and scope of employment are enumerated
by the RESTATEMENT OF AGENCY which provides that torts are within the scope of
an agent’s employment if the conduct is:
        1) The kind [the employee] is employed to perform;
        2) Occurs substantially within the authorized time and space limits; and
        3) Is actuated, at least in part, by a purpose to serve the employer.

Kolstad v. American Dental Ass’n, 527 U.S. 526, 543 (1999) (quoting RESTATEMENT
(SECOND) OF AGENCY § 228(1) at 504). Applying those requirements to the present
case:
        1) Mr. Burchett, as Driller, was employed as driver for his crew and paid a
           separate amount from his regular Driller’s pay just to drive the
           Amerimex Crew to and from the well site;
        2) The incident occurred substantially within a short period of the
           Amerimex’s Crew regular tour shift and en route from the well site; and
        3) Mr. Burchett driving the Amerimex Crew was actuated in its entirety to
           serve and execute Amerimex’s agreement with SandRidge.

Clearly, Mr. Burchett was furthering Amerimex’s business interests.
    D. Burchett is does not understand the legal term “control.”
        The Court relied on testimony by Mr. Burchett, Amerimex’s Driller and driver
for his testimony that his, Painter, Wright, and Carillo’s (the “Amerimex Crew”)
“shift ended at 6 a.m. [sic],” he “was not working at the time” of the incident, and
that “Amerimex has no control over … [their] time off.” Op., p. 20. Burchett is not
qualified to make those statements such that they should be interpreted in a legal
manner.


Painter v. Amerimex Drilling—Mot. Rehearing                                        Page 7
        Mr. Burchett was the Driller for the Amerimex Crew. See R. at 140–41, J.C.
Burchett Dep. v. 1, 6:24–7:1; 8:1–5; 11:23–25; 12:7–22 (Oct. 7, 2008) (Amerimex
Mot. Sum. J., Ex. F (Jun. 25, 2012)); see also R. at 239, J.C. Burchett Dep. v. 2, 6:2–
4, 7:2–5 (Apr. 1, 2009) (Pl.’s Resp. to Amerimex Mot. Sum. J., Ex. A-2 (July 19,
2012)). He never graduated high school. He has only the simplest understanding of
how he is paid, what that pay represents, and the legal implications that go with those
things.
        Giving Mr. Burchett credit for making a legal representation that his “shift
ended at 6      A.M.,”   he “was not working at the time” of the incident, and that
“Amerimex has no control over … [their] time off,” is pure conjecture and
conclusory. It is more likely, given Mr. Burchett’s very limited education, that in
his mind “working” meant actually working on the rig as a driller. It is more likely
that in Mr. Burchett’s mind “control” by Amerimex means Amerimex telling him
what job to do.
        The Opinion and Record are clear on the fact that Mr. Burchett was getting
paid a separate stipend to ferry the Amerimex Crew to and from the drilling site.
This Court recognized that Amerimex paid Mr. Burchett a separate payment
specifically for driving the Amerimex Crew to the jobsite before their schedule tour
start time and from the jobsite after their scheduled tour ended. Op., pp. 3, 21.
        Yes, the Amerimex Crew’s tour shift was over and Mr. Burchett had,
analogously, removed his Driller’s hat, just as the rest of his crew had removed their
hats when they clocked off the jobsite. But, at the time of the incident, Mr. Burchett
was wearing his Chauffer’s hat. Mr. Burchett was on the clock, performing a
different and distinct job for Amerimex. Mr. Burchett was getting paid to shuttle the
Amerimex Crew. It is un-American to think that a for-profit entity would pay an
employee for doing something that did not further the business’s interests.



Painter v. Amerimex Drilling—Mot. Rehearing                                         Page 8
        Mr. Burchett might be an exceptional Driller. For all Appellants know, he
might be the most adept Driller in history. But, he has no legal training. He never
finished the 12th grade. It is inconceivable that he used the word “control” in any
legal sense. It is inequitable for this Court assigned the legal definition to Mr.
Burchett’s use of the word “control.”
    E. Glen Murphree is not qualified to make a statement whether Amerimex
       had legal control over the Amerimex Crew.
        Mr. Murphree is Amerimex’s CFO. R. at 108, Contested Case Hr’g, G.
Murphree Testimony, 3:6–9 (Feb. 29, 2009) (Amerimex Mot. Sum. J., Ex. D (Jun.
25, 2012)) (“Murphree Testimony”). He is not an attorney and the record does not
indicate he has had any legal training. Before he became CFO for Amerimex’s
general partner in 1997, he worked twenty-two years for a bank in Sweetwater,
Texas.      R. at 284–85, G. Murphree Dep., 41:17–25, 42:3–7 (Oct. 7, 2008)
(Amerimex Mot. Sum. J., Ex. D (Jun. 25, 2012)) (“Murphree Dep.”). He spent
eighteen of his twenty-two years working in the bank’s trust department. Id.
        In its Opinion, this Court accepted Mr. Murphree’s contention that Amerimex
had “no control” over its employees once “they leave the rig.” Op., pp. 20–21. In
doing that, this Court ordained Mr. Murphree as having the knowledge, skill, and
training to understand the legal definition of “control.” However, reading all of Mr.
Murphree’s deposition, even reading the snippets quoted in the Opinion, it is clear
he used the term “control” in its common, ordinary usage and not in the legal-sense.
        Mr. Murphree said things like “I have no control over those people when they
leave the rig” or “They start work when the get to the rig, and that’s when work
begins … Outside that, you know, we have no control over them,” he is using
“control” in a generalized and common-usage manner. See Op., pp. 20–21. Well,
obviously, Amerimex controls its employees under a common usage definition. The
employees have to “get to the rig” sober with no alcohol or drugs in their “bodily


Painter v. Amerimex Drilling—Mot. Rehearing                                     Page 9
systems”—that’s controlling their actions outside of the workplace. The employees
have to submit to “searches or inspections” of their persons, property, or vehicles for
alcohol or drugs—that’s controlling their actions outside of the workplace and in
their personal vehicle. The employees must wear proper clothing and personal
protective equipment—that’s controlling their actions outside of the workplace and
not letting them dress as they please.
        By Amerimex’s own attorney’s statement, Mr. Murphree had no
understanding of the legal definition of control, except what he was told after-the-
fact by the Amerimex attorney. R. at 290, Murphree Dep. at 62:3–24. Therefore,
any legal-definition amounts to testimony by Amerimex’s attorney.
        Mr. Murphree used the word “control” in a common, everyday manner. In
consecrating his trust-officer, layman’s usage of the word “control” with the full
ramification of the legal definition of “control,” this Court rendered an inequity upon
Appellants.
    F. Court misapplied Pilgrim v. Fortune Drilling Co.
        This Court relied on Pilgrim v. Fortune Drilling Co., Inc., 653 F.2d 982, 986–
87 (5th Cir., Unit A, 1981) for the principle that an “employer [is] not vicariously
liable under respondeat superior … despite per diem paid” for transporting drilling
crew. Op., p. 21. However, the facts in Pilgrim are readily distinguishable.

                     Pilgrim                              Present Case

 The employees were being transported         The employees were being transported
 to/from their personal homes. (at 983).      to/from Amerimex-provided housing.

 The payment was a “travel allowance.” The payment was a “Driver bonus”
 (at 983).                             under the Amerimex-SandRidge
                                       contract.




Painter v. Amerimex Drilling—Mot. Rehearing                                      Page 10
                     Pilgrim                               Present Case

 Per diem travel allowance available to       “Driver bonus” was only available to
 any rig member. (at 983). Rig crew           driller on that job under the Contract.
 decided from day to day which
 crewmember would receive that day’s
 travel allowance. (at 983).

 Most of the crew drove to a location in      Evidence in the record indicates the
 Iraan, met there, and then carpooled in      entire crew stayed at the Amerimex
 one vehicle to the rig (at 983 n.3).         housing and the rig every day.

 Some employees drive their own          Evidence in the record indicates
 vehicles, some employees camped near Burchett drove all of his crew to and
 the rig, some carpooled daily (at 987). from the Amerimex housing and the rig
                                         every day.

 Purpose: None stated.                        Purpose: to make Amerimex
                                              competitive so crew did not quit mid-
                                              drilling.


        Normally, Amerimex would set a mobile bunkhouse at the drilling location
for its crews. R. at 109, Murphree CCH Testimony 7:4–20. However, at this drill
site, the bunkhouse was not permitted. Id. Therefore, Amerimex moved the
bunkhouse to a location near Fort Stockton. Id. Usually, the Amerimex crew could
walk to the bunkhouse after their shift was over. But, at this site, Amerimex paid
Burchett to drive the crew.
        Burchett was not paid for his personal travel time—he was paid to transport
the Amerimex crew. In Murphree’s own words, the driving of the crew was not
routine. R. at 109, Murphree CCH Testimony 8:15–9:16.




Painter v. Amerimex Drilling—Mot. Rehearing                                       Page 11
                                              III.     PRAYER
        The Court should grant rehearing, request additional briefing and argument.
In the alternative, Appellants pray the Court will reconsider and reverse its previous
decision.
                                                     Respectfully submitted,
                                                     COTTON, BLEDSOE, TIGHE & DAWSON, PC
                                                     P.O. Box 2776
                                                     Midland, Texas 797002-2776
                                                     P: 432.685.5782 | F: 432.682.3672

                                                     By: /s/ David Lauritzen___
                                                     David W. Lauritzen
                                                     State Bar No. 00796934
                                                     DLauritzen@CBTD.com


                                                     THE MALHOTRA LAW FIRM
                                                     319 North Grant Avenue
                                                     Odessa, Texas 79761
                                                     P: 432.580.4878 | F: 432.337.7283

                                                     By:
                                                     Rahul Malhotra
                                                     State Bar No. 00797781
                                                     Rahul@TheMalhotraLawFirm.com


                                                     HANNA LAW FIRM, PC
                                                     302 Chestnut Street
                                                     Abilene, Texas 79704
                                                     P: 325.673.6952 | F: 325.673.4496
                                                     Jon Hanna
                                                     State Bar No. 08919200
                                                     JHanna7534@aol.com

                                                     ATTORNEYS FOR APPELLANTS


Painter v. Amerimex Drilling—Mot. Rehearing                                              Page 12
                             CERTIFICATE OF COMPLIANCE
       I certify this document, excluding caption, signature, proof of service,
certification, and this certificate, contains 2,426 words, according to the word count
of the computer program used to prepare this document.




                                              Rachel Ambler, State Bar No. 24081954
                                              THE MALHOTRA LAW FIRM
                                              ATTORNEYS FOR APPELLANTS




                               CERTIFICATE OF SERVICE
       I certify that a true copy of the above was served on each attorney of record
or party in accordance with the Texas Rules of Civil Procedure on the 18th day of
December, 2015.

VIA EMAIL and efiling, which will automatically
serve a Notice of Electronic Filing.:
Karen C. Burgess, kburgess@richardsonburgess.com
RICHARDSON + BURGESS, LLP
221 West 6th Street, Suite 900
Austin, Texas 78701-3445
Attorneys for Amerimex, Appellee




                                              RACHEL AMBLER
                                              THE MALHOTRA LAW FIRM
                                              ATTORNEYS FOR APPELLANTS




Painter v. Amerimex Drilling—Mot. Rehearing                                      Page 13
