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Order filed December 1, 2005
 
 
 
 
 
 
                                                                        In The
                                                                              
    Eleventh Court of Appeals
                                                                   __________
 
                                                          No. 11-04-00191-CV 
                                                    __________
 
                                  FERNANDO MORALES, Appellant
 
                                                             V.
 
      MARTIN
RESOURCES, INC., MARTIN OPERATING PARTNERSHIP,
                L.P.,
AND SELECT PROFESSIONAL STAFFING, Appellee
 

 
                                         On
Appeal from the 244th District Court
                                                           Ector
County, Texas
                                                Trial
Court Cause No. C-114,788
 

 
                                                                     O
R D E R
 
Our former opinion and judgment dated November 10,
2005, are withdrawn, and our opinion and judgment dated December 1, 2005, are
substituted therefor.
 
December
1, 2005                                                                               TERRY
McCALL
Not
designated for publication.  See
TEX.R.APP.P. 47.2(a).                 JUSTICE
Panel
consists of:  Wright, C.J., and
McCall,
J., and McCloud, S.J.[1]
 
 
 
 








 








 




Opinion filed December 1, 2005
 
 
 
 
 
 
                                                                        In The
                                                                              
    Eleventh Court of
Appeals
                                                                   __________
 
                                                          No. 11-04-00191-CV 
 
                                                    __________
 
                                  FERNANDO MORALES, Appellant
 
                                                             V.
 
      MARTIN RESOURCES, INC., MARTIN OPERATING PARTNERSHIP,
               L.P., AND SELECT PROFESSIONAL
STAFFING, Appellees
 

 
                                         On
Appeal from the 244th District Court
 
                                                           Ector
County, Texas
 
                                                Trial
Court Cause No. C-114,788
 

 
                                                                   O
P I N I O N
 




Fernando Morales was an employee of Select Professional
Staffing.  Select Professional Staffing
placed Morales as a temporary employee with Martin Resources, Inc.  Morales injured his left hand while working
on a machine at Martin Resources, Inc.=s
facility located in Odessa, Texas. Morales brought this action alleging
negligence claims against Select Professional Staffing, Martin Resources, Inc.,
and Martin Operating Partnership, L.P.[2]  The Martin entities will be referred to
collectively as Martin Resources, Inc. 
The trial court granted summary judgment to Select Professional Staffing
and Martin Resources, Inc., finding that the exclusive remedy provision of the
Texas Workers=
Compensation Act (TWCA) barred Morales=s
common law claims against them.  See
TEX. LAB. CODE ANN. '
408.001(a) (Vernon Supp. 2005).[3]  Because neither Select Pro-fessional Staffing
nor Martin Resources, Inc. established that they were covered by workers= compensation insurance, which is
necessary to come within the exclusive remedy provision, we reverse the trial
court=s
judgment and remand the case to the trial court for further proceedings.
                                                                  Issues
Presented
In two points of error, Morales argues that the
trial court erred in granting summary judgment to Select Professional Staffing
and Martin Resources, Inc.  The parties
agree that Morales was employed by Select Professional Staffing and Martin
Resources, Inc. at the time of the injury. 
The parties also agree that the Texas Staff Leasing Services Act, TEX.
LAB. CODE ANN. ' 91.001
et seq. (Vernon 1996 & Pamph. Supp. 2005), does not apply in this
case.  The issue in this appeal is
whether Select Professional Staffing and Martin Resources, Inc. established
that they were covered by workers=
compensation insurance at the time of Morales=s
injury.
                                                   The
Motions for Summary Judgment
Select Professional Staffing and Martin Resources,
Inc. both filed traditional motions for summary judgment asserting that the
exclusive remedy provision of the TWCA barred Morales=s
claims.  Select Professional Staffing
asserted that Morales had a third employer, AMS Staff Leasing N.A., Inc., at
the time of the injury and that AMS Staff Leasing had workers= compensation insurance covering all of
the employees that it had leased to Select Professional Staffing, including
Morales. Select Professional Staffing argued that it had workers= compensation insurance because it was
covered by AMS Staff Leasing=s
policy.  Martin Resources, Inc. argued
that it had workers=
compensation insurance at the time of the injury.




Standard of Review
We will apply the well-recognized standard of review
for traditional summary judgments.  We
must consider the summary judgment evidence in the light most favorable to the
nonmovant, indulging all reasonable inferences in favor of the nonmovant, and
determine whether the movant proved that there were no genuine issues of
material fact and that it was entitled to judgment as a matter of law.  Nixon v. Mr. Property Management Company,
Inc., 690 S.W.2d 546 (Tex.1985); City of Houston v. Clear Creek Basin
Authority, 589 S.W.2d 671 (Tex.1979). 
A defendant is entitled to summary judgment if it either disproves an
element of each of the plaintiff=s
causes of action or establishes an affirmative defense on each of the plaintiff=s causes of action as a matter of
law.  American Tobacco Company, Inc.
v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997); Science Spectrum, Inc. v.
Martinez, 941 S.W.2d 910, 911 (Tex.1997).
The Exclusive Remedy Provision
The exclusive remedy provision is found in Section
408.001(a) of the TWCA.  Section
408.001(a) provides as follows:
Recovery of workers=
compensation benefits is the exclusive remedy of an employee covered by workers= compensation insurance
coverage...against the employer...for...a work-related injury sustained by the
employee.
 
An employee is covered by Aworkers= compensation insurance coverage@ if his employer possesses an approved
insurance policy covering the payment of workers=
compensation benefits to its employees. 
TEX. LAB. CODE ANN. '
401.011(44)(A) (Vernon Pamph. Supp. 2005); Western Steel Company, Inc. v.
Altenburg, 169 S.W.3d 347, 349 (Tex.App. - Corpus Christi 2005, pet=n pending).
The exclusive remedy provision of the TWCA is an
affirmative defense. Western Steel Company, Inc. v. Altenburg, supra at
349; Pierce v. Holiday, 155 S.W.3d 676, 678 (Tex.App. - Texarkana 2005,
no pet=n).  Thus, in the summary judgment context, Select
Professional Staffing and Martin Resources, Inc. had the summary judgment
burden of proving their exclusive remedy affirmative defense as a matter of
law.  American Tobacco Company, Inc.
v. Grinnell, supra at 425; Science Spectrum, Inc. v. Martinez,
supra at 911.




The Texas Supreme Court has recognized that
temporary employees, such as Morales, may have more than one employer for the
purposes of the TWCA and its exclusive remedy provision.  Garza v. Excel Logistics, Inc., 161
S.W.3d 473, 475 (Tex.2005);  Wingfoot
Enterprises v. Alvarado, 111 S.W.3d 134, 144 (Tex.2003).  In Garza, the Texas Supreme Court
explained as follows:  
In
Wingfoot, we examined the Workers=
Compensation Act and held that an employee of a temporary employment agency who
is Ainjured while working under the direct
supervision of a client company is conducting the business of both the general
employer [the temporary employment agency] and that employer=s client.@  We further held, based on the provisions of
the Act, that the injured Aemployee
should be able to pursue workers=
compensation benefits from either,@
and that A[i]f
either has elected not to provide coverage, but still qualifies as an >employer=
under the Act, then that employer should be subject to common law liability
without the benefit of the defenses enumerated in [TEX. LAB. CODE ANN. ' 406.033 (Vernon Pamph. Supp. 2005).@ 
 
Garza v. Excel Logistics, Inc., supra at 475.  In this case, the parties agree that Morales
was an employee of Select Professional Staffing and Martin Resources, Inc. for
the purposes of the TWCA. 
The exclusive remedy provision applies to
employers Acovered
by workers=
compensation insurance.@  Garza v. Excel Logistics, Inc., supra
at 474.  In Garza, a temporary
employment agency placed an employee with a client company.  The Texas Supreme Court reversed a summary
judgment in favor of the client company because the company had failed to
establish that it was covered by workers=
compensation insurance coverage.  The
court explained that a temporary employment agency cannot obtain workers= compensation insurance for a client
simply by obtaining coverage for itself. 
The court held that Atwo
employers cannot agree that one workers=
compensation policy will name only one employer but cover both.@ 
Garza v. Excel Logistics, Inc., supra at 479.  Rather, there must be explicit coverage for
both employers.  Garza v. Excel
Logistics, Inc., supra at 478.
Select Professional Staffing presented an
affidavit of Andrew Thomas Price, the risk manager for AMS Staff Leasing, in
support of its motion for summary judgment. 
Price stated, among other things, (1) that Morales was employed by AMS
Staff Leasing; (2) that AMS Staff Leasing had leased Morales to Select
Professional Staffing; and (3) that, on the date of Morales=s injury, AMS Staff Leasing had workers= compensation insurance coverage for
all employees that it had leased to Select Professional Staffing.  Select Professional Staffing also presented
the information page for AMS Staff Leasing=s
workers=
compensation policy.  The page listed AAMS Construction Company, Inc. dba AMS
Staff Leasing@ as the
named insured.  There was no summary
judgment evidence that Select Professional Staffing was named as an insured
under AMS Staff Leasing=s
workers=
compensation policy or under any other workers=
compensation insurance policy.    




Select Professional Staffing relies on AMS Staff
Leasing=s workers= compensation insurance policy in
support of its exclusive remedy provision argument.  However, under Garza, Select
Pro-fessional Staffing had the burden of showing Aexplicit
coverage@ for
itself.  Garza v. Excel Logis-tics,
Inc., supra.  Select
Professional Staffing did not present any summary judgment evidence showing
that it was named as an insured under any workers=
compensation insurance policy; therefore, Select Professional Staffing failed
to meet its burden of showing Aexplicit
coverage@ for
itself.  The trial court erred in
granting summary judgment to Select Professional Staffing.
Martin Resources, Inc. presented an affidavit of
Steven G. Fenner, an underwriting specialist with American International Group
(AIG), in support of its motion for summary judgment.  Fenner stated that, A[d]uring
February 2001, Martin Resources, Inc. and its facility in Odessa, Texas, had
workers compensation insurance with AIG.@  Martin Resources, Inc. also presented an
affidavit of Dale Langston, a plant manager for Martin Resources, Inc.  Langston stated that Martin Resources, Inc.
carried workers=
compensation insurance at the time of Morales=s
injury.
Martin Resources, Inc. also submitted a workers= compensation insurance policy as
summary judgment evidence.  The policy
named AMartin
Resource Management Corporation@
as the insured and had a policy period from November 30, 2000, to November 30,
2001.  A AMartin
Resources, Inc.,@ located
in Kilgore, Texas, was listed in an endorsement to the policy.  A AMartin
Resource Management Corporation,@
located in Odessa, Texas, was also listed in an endorsement to the policy.  However, a AMartin
Resources, Inc.,@ located
in Odessa, Texas, was not listed as an insured in the policy or in any
endorsement to the policy.  Martin
Resources, Inc. did not present any summary judgment evidence showing (1) the
relationship, if any, between Martin Resources, Inc. in Kilgore and Martin
Resources, Inc. in Odessa or (2) the relationship, if any, between Martin
Resource Management Corporation and Martin Resources, Inc. in Odessa.  In the absence of any evidence explaining the
relationship, if any, among these entities, the insurance policy presented by
Martin Resources, Inc. created a fact issue as to whether Martin Resources,
Inc. had workers= compensation
insurance covering its Odessa facility. 
Therefore, Martin Resources, Inc. failed to meet its summary judgment
burden of establishing that it was covered by workers=
compensation insurance coverage at the time of Morales=s
injury.  The trial court erred in
granting summary judgment to Martin Resources, Inc.
Morales=s
points of error are sustained.




                                                                This
Court=s Ruling
We reverse the trial court=s
judgment and remand this cause to the trial court for further proceedings
consistent with this opinion.   
 
TERRY McCALL
JUSTICE
 
December 1, 2005
Panel
consists of: Wright, C.J., and
McCall,
J., and McCloud, S.J.[4]




     [1]Austin McCloud, Retired Chief Justice, Court of
Appeals, 11th District of Texas at Eastland sitting by assignment.


     [2]Martin Resources, Inc. apparently merged into Martin
Operating Partnership, L.P. after the date of Morales=s injury.


     [3]The Honorable Gary L. Watkins, Judge of the 244th
District Court, granted Martin Resources, Inc.=s motion
for summary judgment.  Judge Watkins
passed away.  The Honorable Stacy Trotter
succeeded Judge Watkins as the judge of the 244th District Court.  Judge Trotter signed a judgment that disposed
of the remaining issues and parties before the court giving this court
jurisdiction to consider this appeal.


     [4]Austin McCloud, Retired Chief Justice, Court of
Appeals, 11th District of Texas at Eastland sitting by assignment.


