      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                     NO. 03-15-00529-CV



                              Matthew Eric Kershner, Appellant

                                                v.

                       Samsung Austin Semiconductor, LLC, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
      NO. D-1-GN-12-003687, HONORABLE GISELA D. TRIANA, JUDGE PRESIDING



                           MEMORANDUM OPINION


               Matthew Eric Kershner appeals the trial court’s summary judgment on his premises-

liability claim against Samsung Austin Semiconductor, LLC, for personal injuries that he sustained

while performing electrical work for a subcontractor of Samsung at one of Samsung’s sites. In one

issue, Kershner contends that summary judgment was improper because there was a material fact

issue about whether he was employed by an independent contractor and, therefore, whether the

“exclusive remedy provision” of the Texas Workers’ Compensation Act (TWCA) applies, providing

Samsung immunity from Kershner’s tort claims. See Tex. Lab. Code § 408.001(a). We will affirm

the trial court’s final summary judgment.
                                          DISCUSSION1

               The exclusive-remedy provision of the TWCA on which Samsung relied in its

motion for summary judgment provides that, in exchange for guaranteeing that employees injured

on the job are promptly covered for medical expenses, regardless of fault, a subscribing employer

receives immunity from the tort claims of that employee, and the workers’ compensation benefit

is the employee’s exclusive remedy. HCBeck, Ltd. v. Rice, 284 S.W.3d 349, 350 (Tex. 2009); see

Tex. Lab. Code § 408.001(a) (“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.”). The so-called “exclusive remedy defense” immunizes employers not

only against the tort claims of their direct employees but also immunizes those employers acting as

general contractors who have expressly provided in writing for workers’ compensation coverage for

subcontractors and their employees. See Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 440,

444–45 (Tex. 2009) (holding that premises owner who “wears the hat of a general contractor” who

subscribes to workers’ compensation coverage under TWCA and enters into written agreement to

provide coverage to all contractors and contractors’ employees at its work site is entitled to assert

“exclusive remedy defense”); see also Tex. Lab. Code § 406.123(a), (e) (providing that contractor

may provide workers’ compensation insurance coverage for subcontractors and subcontractor’s

employees and that agreement to provide such coverage makes general contractor “the employer of


       1
          Because the parties are familiar with the facts, procedural background, and applicable
standard of review, we dispense with a recitation of those here except as necessary to explain the
reasons for our decision. See Tex. R. App. P. 47.4.

                                                 2
the subcontractor and the subcontractor’s employees” for purposes of Texas workers’ compensation

law). The exclusive-remedy provision applies to all “tiers” of subcontractors. See Etie v. Walsh &

Albert Co., 135 S.W.3d 764, 767–68 (Tex. App.—Houston [1st Dist.] 2004, pet. denied).

               It is undisputed that Samsung was acting as the general contractor of the construction

project on its premises and that Kershner’s employer, Spur Electric, Inc. (Spur), was a subcontractor

of the electrical contractor hired by Samsung for the project. The summary-judgment record

also contains (1) an “enrollment worksheet” signed by Spur expressly stating that Spur “hereby

acknowledges and agrees that worker’s compensation insurance coverage is being provided to [Spur]

and its employees pursuant to an Owner/Contractor Controlled Insurance Program (‘CCIP’/

‘OCIP’)” and that such document “serves to memorialize the parties’ agreement for purposes of

Texas Labor Code sec. 406.123” and (2) a “Certificate of Insurance” showing that Spur had enrolled

in Samsung’s OCIP. Kershner neither contested this evidence nor submitted any controverting

evidence on this point.

               Instead, Kershner relies on evidence that purportedly creates a fact issue about

whether, in addition to being a subcontractor, Spur is also an “independent contractor” as defined

in the TWCA, contending that a determination that Spur is an independent contractor prohibits

application of the exclusive-remedy provision. See Tex. Lab. Code §§ 406.121(2) (defining

independent contractor), .122(a). Section 406.122(a) reads:


       For purposes of workers’ compensation insurance coverage, a person who
       performs work or provides a service for a general contractor or motor carrier who is
       an employer under this subtitle is an employee of that general contractor or motor
       carrier, unless the person is:



                                                 3
       (1) operating as an independent contractor; or
       (2) hired to perform the work or provide the service as an employee of a person
       operating as an independent contractor.


Id. § 406.122(a). Essentially, Kershner seems to be arguing that section 406.122(a) supersedes

section 406.123 and renders the general contractor’s election to cover subcontractors under its

workers’ compensation insurance of no effect if the subcontractor also fits under the definition of

“independent contractor.” However, Kershner’s argument is contrary to the plain language of the

statutes and caselaw directly on point.

               In Etie v. Walsh & Albert Co., Ltd., the injured plaintiff, an employee of a

subcontractor, made the very same argument that Kershner makes here, and the First Court of

Appeals rejected it, holding that despite the subcontractor’s concession that it was an “independent

contractor,” the general contractor’s “provision of workers’ compensation insurance [to

subcontractors and their employees] transforms an independent contractor into a ‘deemed

employee.’” 135 S.W.3d at 767. The Etie court noted that “we do not abrogate the right of an

injured worker to sue a subcontractor or its employees when that subcontractor retains its status

as an independent contractor by choosing not to participate in workers’ compensation coverage.”

Id. at 768 (emphasis added); see Tex. Lab. Code § 406.122(b) (providing that subcontractor and

its employees are not deemed employees of general contractor if subcontractor is operating as

independent contractor and “has entered into a written agreement with the general contractor that

evidences a relationship in which the subcontractor assumes the responsibilities of an employer

for the performance of work”); Bedrock Gen. Contractors, Inc. v. Texas Workers’ Comp. Ins. Fund,

No. 03-00-00426-CV, 2001 WL 253594, at *2–3, *8 (Tex. App.—Austin Mar. 8, 2001, pet. denied)

                                                 4
(not designated for publication). There is no evidence that Spur chose not to participate in the

workers’ compensation coverage provided by Samsung.            Rather, the evidence conclusively

establishes the opposite: that Spur explicitly agreed in writing to be bound by section 406.123 and

enrolled in Samsung’s workers’ compensation insurance program.

               The supreme court recently held that, even if a subcontractor indisputably qualifies

as an “independent contractor” under section 406.122, an agreement meeting the requirements

of section 406.123 controls: “Taken together, the only plausible reading of the statute is that

section 406.122 states a general rule of employment status for workers’ compensation purposes and

section 406.123 deviates from that rule by creating the fiction of another.” TIC Energy & Chem.,

Inc. v. Martin, No. 15-0143, __ S.W.3d __, 2016 WL 3136877, at *6 (Tex. June 3, 2016). Even

assuming that Kershner’s summary-judgment evidence raised a material fact issue about whether

Spur was an “independent contractor” under the TWCA, the supreme court’s TIC Energy opinion

controls the outcome here. After TIC Energy, there can be no reasonable contention that parties such

as those here (Spur and Samsung) would “make a section 406.123 agreement but opt out of the

statutory employment relationship it creates . . . [and] we cannot fathom any reason . . . why a

general contractor and a subcontractor would enter into an agreement under section 406.123 but

disclaim whatever benefits and protections might ensue as a result.” Id. at *8.

               We overrule Kershner’s sole issue on appeal and conclude that the trial court did

not err in granting summary judgment in favor of Samsung on the basis of its asserted exclusive-

remedy defense.




                                                 5
                                      CONCLUSION

              We affirm the trial court’s final summary judgment in favor of Samsung.



                                           __________________________________________

                                           David Puryear, Justice

Before Chief Justice Rose, Justices Puryear and Pemberton

Affirmed

Filed: July 22, 2016




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