Affirmed and Memorandum Opinion filed July 19, 2012.




                                         In The

                      Fourteenth Court of Appeals

                                 NO. 14-11-00902-CV

                           DEANDREW PRICE, Appellant

                                           V.

                 UNI-FORM COMPONENTS COMPANY, Appellee

                      On Appeal from the 152nd District Court
                               Harris County, Texas
                         Trial Court Cause No. 2009-70477



                        MEMORANDUM OPINION

      Appellant, Deandrew Price, appeals the summary judgment granted in favor of
appellee, Uni-Form Components Co. (UCC), on his negligence cause of action. In his
sole issue in this appeal, Price claims the trial court erred in granting UCC’s motion for
summary judgment because a material fact issue existed as to whether UCC carried
workers’ compensation insurance covering Price at the time of the accident. We affirm.

                                     BACKGROUND

      Price, an employee of AGL Elite Business Solutions (AGL)—an employment
agency that provided workers to UCC on a temporary basis—was working as a machine
operator at UCC. On August 4, 2008, Price was cutting a piece of steel with a cutting
torch, when a piece of steel fell off the table onto his right foot, severely injuring his foot.
Price sued AGL and UCC for negligence. UCC answered with a number of affirmative
defenses, including that Price was a temporary employee of UCC, and UCC had workers’
compensation insurance for the benefit of all its employees, including temporary
employees; therefore, the exclusive remedy provision of the Texas Workers’
Compensation Act (TWCA) barred Price’s claims against UCC.1

       UCC moved for summary judgment based on the affirmative defense of the
exclusive remedy, claiming that Price was considered a UCC employee at the time of the
accident and UCC maintained workers’ compensation insurance. Included in UCC’s
summary judgment evidence was Price’s deposition wherein he testified that UCC had
the right to tell him how to perform his ―job functions on those machines with respect to
the details of [his] work.‖ UCC also attached the affidavit of Stephen Songer, UCC’s
general manager, who similarly stated that Price was a temporary employee under the
control of UCC; UCC had the right to control the details of Price’s work; and UCC had
the right to set Price’s schedule and hours, and instruct him regarding his job duties.
Songer further attested that UCC had workers’ compensation insurance available for
traditional and temporary employees, and the attached certificate of insurance reflected
that such insurance was available for UCC employees on August 4, 2008.2 The attached
certificate of insurance reflected that UCC had workers’ compensation insurance in effect




       1
           See TEX. LAB. CODE ANN. § 408.001 (West 2006).
       2
         UCC stated in its motion for summary judgment that ―AGL typically maintained worker’s [sic]
compensation insurance for the workers it supplied to its customers, including UCC. However, on this
occasion, there was a lapse in coverage for AGL. Despite this, UCC had its own worker’s [sic]
compensation insurance covering employees who were injured in the course and scope of their
employment, including its borrowed servants.‖
                                                 2
on August 4, 2008, the date of the accident.3 The certificate also showed the name of the
insurer, the policy number, the policy period, and the policy limits.

        Price responded to UCC’s motion for summary judgment, claiming that Price’s
affidavit raised a genuine issue of material fact as to whether UCC carried workers’
compensation insurance covering Price at the time of the accident. Price stated in his
affidavit that he never received a check for loss in income issued by any insurance
company; all such checks Price received were issued by AGL; Price received no
documents reflecting any involvement by a workers’ compensation company after the
accident; and Price had not been contacted by anyone connected to any insurance
company.

        Price also complained in this response that UCC had not produced a copy of the
workers’ compensation policy in either its motion for summary judgment or in response
to Price’s request for disclosure.         Instead of producing a copy of the policy, UCC
responded: ―UCC had general liability insurance and worker’s compensation insurance
available for any and all employees, including borrowed servants.‖ Price asserted that
the failure to produce a copy of the workers’ compensation insurance policy was a
ground for denying UCC’s motion for summary judgment. Price further contended that
Songer’s conclusory statement that UCC had workers’ compensation insurance covering
Price on the date of the accident was insufficient to prove the existence of such
coverage.4

        3
          UCC moved for leave to supplement the summary judgment record with the certificate of
insurance because it had been inadvertently omitted at the time UCC filed its motion for summary
judgment. The trial court granted UCC’s motion for leave before it ruled on the motion for summary
judgment.
        4
          Price did not respond to UCC’s summary judgment argument that he was UCC’s borrowed
servant, and he does not address the borrowed servant argument on appeal. At oral argument, Price’s
attorney stated that it is undisputed that Price was an employee of UCC at the time of the accident.
Therefore, the only issue on appeal is whether UCC established that it had a workers’ compensation
policy that covered Price at the time of the accident. 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 in the court of appeals are waived‖).
                                                   3
       The trial court granted UCC’s motion for summary judgment and motion for
severance, severing all of Price’s causes of action against UCC, making the summary
judgment order a final judgment.

                                         ANALYSIS

       In Price’s only issue on appeal, he claims the trial court erred in granting UCC’s
motion for summary judgment by failing to find that a genuine issue of material fact
exists as to whether UCC carried workers’ compensation insurance at the time of the
accident.

       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. The defendant is
entitled to summary judgment if it conclusively negates at least one of the essential
elements of the plaintiff’s cause of action or if it conclusively establishes all the elements
of an affirmative defense. Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex.
2010), cert. denied, — U.S. —, 131 S. Ct. 1017 (2011).

       The 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

                                              4
TWCA, or not 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).

      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.).
To show that a common-law claim is barred by the Act, the defendant must show that the
injured worker was (1) its employee at the time of the work-related injury, and (2)
covered by workers’ compensation insurance. Id; Phillips v. Am. Elastomer Prods.,
L.L.C., 316 S.W.3d 181, 187 (Tex. App.—Houston [14th Dist.] 2010, pet. denied). Once
these requirements are satisfied, the exclusive remedy provision is triggered and all
employee claims of work-related negligence and gross negligence are barred. Warnke,
358 S.W.3d at 343.

                                           5
       Relying on the Texas Supreme Court’s opinion in Garza v. Exel Logistics, Inc.,
161 S.W.3d 473 (Tex. 2005), Price asserts that UCC’s failure to produce a copy of its
workers’ compensation policy serves as a ground for reversing the summary judgment.
In Garza, Interim Services Pacific LLC, a temporary employment agency, employed
Garza as a laborer and assigned him to perform general labor at Exel Logistics, Inc., one
of Interim’s clients. Id. at 474. Garza sued Interim and Exel after sustaining an injury on
the job, and Exel moved for summary judgment based on the exclusive remedy provision
of the TWCA. Id. In response, Garza argued that there was insufficient proof that Exel
was covered by workers’ compensation insurance. Id. The court of appeals affirmed the
trial court’s summary judgment in favor of Exel. Id.5

       The Garza court noted that Exel had not come forward with a workers’
compensation policy that it had obtained for itself.           Id. at 477–78.      Instead, Excel
contended that, under its contract with Interim, because the ―markup‖ it paid to Interim
was to be used to purchase workers’ compensation insurance and that Interim had, in fact,
purchased insurance, Exel was covered. Id. at 478. The Garza court held that the TWCA
does not permit a temporary agency to obtain coverage for a client simply by obtaining
coverage for itself; instead, there must be explicit coverage for the client. Id. In Garza,
there was no evidence that an insurance company had contracted to secure Exel’s liability
and obligations, as distinguished from Interim’s. Id. Moreover, nothing in the contract
between Interim and Exel indicated that Interim was required to obtain a workers’
compensation policy that named both parties as insureds, or that Interim was required to
obtain a separate policy for Exel. Id. at 480. In any event, even if Interim had been
contractually obligated to obtain workers’ compensation insurance that named Exel as an
insured, or it gratuitously chose to do so, no such policy had been identified or made part
of the record. Id. at 481.


       5
         Garza also argued that Exel was not his employer, but the Texas Supreme Court rejected that
argument. 161 S.W.3d at 475–77.
                                                 6
       Garza is easily distinguished from this case because Exel did not show that it had
workers’ compensation insurance covering the injured employee.             In support of its
motion for summary judgment, UCC submitted a copy of the certificate of insurance
reflecting that workers’ compensation insurance was available for UCC employees on
August 4, 2008. This is sufficient to establish that UCC had workers’ compensation
insurance on the date of Price’s injury. See Warnke, 358 S.W.3d at 344 (holding that
Nabors satisfied its burden to demonstrate subscriber status and triggered the exclusive
remedy provision of the Act by providing an affidavit from the carrier stating that the
carrier provided workers’ compensation insurance to Nabors at the time of the accident);
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 true and correct copy of 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 Price to present evidence creating a fact issue on whether
UCC was a subscriber. See id. Price attempted to create a fact issue by submitting his
own affidavit stating that he never received a check for loss in income issued by any
insurance company; all such checks Price received were issued by AGL; Price received
no documents reflecting any involvement by a workers’ compensation company after the
accident; and Price had not been contacted by anyone connected to any insurance
company. But this evidence does not raise a genuine issue as to whether UCC had
workers’ compensation insurance covering Price on August 4, 2008. In addition, to the
extent that Price is claiming that he received no notice of coverage, Texas courts have
held that the exclusive remedy bar does not hinge on whether notice has been provided to
the employee.6 See, e.g., Garcia v. AZZ, Inc., No. 01-11-00668-CV, 2012 WL 584215, at
*3 (Tex. App.—Houston [1st Dist.] Feb. 23, 2012, pet. denied) (mem. op.) (holding the
       6
         See TEX. LAB. CODE ANN. § 406.005(a) (West 2006) (requiring employers to notify ―each
employee . . . whether or not the employer has workers’ compensation insurance coverage‖).
                                              7
plaintiff’s averments that he was told to ―keep working‖ when he asked about seeing a
doctor for his injuries, he was not ―provided access to a doctor,‖ and he was not told how
to ―gain access to a doctor‖ were complaints that the defendant failed to provide him with
information about workers’ compensation coverage and benefits, and his claims were
barred by exclusive remedy despite lack of such notice); Wesby v. Act Pipe & Supply,
Inc., 199 S.W.3d 614, 618 (Tex. App.—Dallas 2006, no pet.) (―failure to provide notice
will not bar workers’ compensation coverage or application of the exclusive remedy
provision‖).

       Price further contends that it should not be assumed that UCC would pay
premiums for an additional workers’ compensation policy to cover temporary employees.
Price asserts that, in determining the amount of the premium to be paid by UCC, a
workers’ compensation insurance company would want to know how many employees
would be covered by the policy.        The Texas Supreme Court has rejected similar
arguments.

       In Port Elevator-Brownsville, the Texas Supreme Court observed it had ―long held
that the Labor Code and the rule against split work forces require employers to elect
workers’ compensation coverage for all employees.‖ 358 S.W.3d at 239. Casados
worked for Staff Force, a temporary staffing agency, which provided Casados to perform
general labor for Port Elevator. Id. at 240. Casados suffered a fatal, work-related injury.
Id. Staff Force and Port Elevator both carried workers’ compensation insurance. Id.
Port Elevator’s carrier, Texas Mutual, claimed that Casados was a Staff Force employee
and not a Port Elevator employee and denied workers’ compensation coverage. Id. Port
Elevator raised the affirmative defense that workers’ compensation was the plaintiffs’
exclusive remedy. Id. The plaintiffs, in response to Port Elevator’s motion for summary
judgment, argued that the policy did not cover Casados because Port Elevator did not pay
premiums for temporary employees. Id.


                                            8
       The Texas Supreme Court reaffirmed its holding that ―the employer may not split
its work force by electing coverage for some employees, but not coverage for all.‖ Id. at
241 (citing Tex. Workers’ Comp. Ins. Fund v. DEL Indus., Inc., 35 S.W.3d 591, 596 (Tex.
2000)). The court rejected the plaintiffs’ argument that Port Elevator intended to and did
exclude Casados from coverage because Port Elevator did not pay premiums for
temporary workers. Id. at 243. The court explained that premiums are an issue between
the employer and the insurer; they do not affect the employee’s coverage. Id. Therefore,
even if Port Elevator’s policy had set out certain premiums solely for temporary workers
and it had not paid those premiums, Casados would still have been covered under the
policy, and the failure to pay premiums would be an issue between Port Elevator and
Texas Mutual. Id. at 244. Moreover, a clear and unambiguous attempt to exclude
Casados from coverage would violate the rule against splitting work forces. Id.

       We conclude UCC conclusively established that it had workers’ compensation
insurance covering Price on the date of the accident, and overrule his sole issue on
appeal.7

       Having overruled Price’s sole issue on appeal, we affirm the trial court’s
judgment.


                                                 /s/       Sharon McCally
                                                           Justice

Panel consists of Justices Frost, McCally, and Mirabal.8


       7
         Price contends that the summary judgment should be reversed so that ―UCC can be required to
produce the alleged policy . . . , so that the policy can be examined to determine whether it explicitly
provided workers’ compensation insurance covering Price at the time of the accident in question.‖
Because we hold that attaching the certificate of insurance is sufficient to establish that UCC had
worker’s compensation insurance covering Price on the date of the accident, it was not necessary for UCC
to submit the entire policy in support of its motion for summary judgment.
       8
           Senior Justice Margaret Garner Mirabal sitting by assignment.
                                                       9
