                                      NUMBER 13-02-450-CV

                                   COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                          CORPUS CHRISTI - EDINBURG


WESTERN STEEL COMPANY, INC.,                                                                   Appellant,

                                                       v.

HANK ALTENBURG,                                                                                Appellee.


   On appeal from the 347th District Court of Nueces County, Texas.


                   MEMORANDUM OPINION ON REMAND

                 Before Justices Yañez, Castillo1, and Garza
              Memorandum Opinion On Remand by Justice Yañez

        By two issues, appellant, Western Steel Company, Inc. (“Western”), challenges the

legal and factual sufficiency of the jury’s finding that appellee, Hank Altenburg, was not

Western’s borrowed employee. On remand, we hold the evidence is legally insufficient to



        1
         The Honorable Errlinda Castillo, form er Justice of this Court, did not participate in this m em orandum
opinion because her term of office expired Decem ber 31, 2006. See T EX . R. A PP . P. 41.1(c).
support the jury’s finding that Altenburg was not Western’s borrowed employee.

Accordingly, we sustain Western’s first issue, reverse the judgment in Altenburg’s favor,

and render judgment that he take nothing.

                                        Procedural Background

        In our original opinion in this case, a divided panel of this Court affirmed the trial

court’s judgment.2 Following Garza v. Exel Logistics, Inc.,3 we held that Western failed to

establish that the exclusive remedy provision of the workers’ compensation statute barred

its liability because it did not show that it was covered by worker’s compensation insurance

at the time of Altenburg’s injury and that such coverage would have covered his claim.4

The Texas Supreme Court held that we erred in addressing whether Western had workers’

compensation insurance at the time of Altenburg’s injury because it was “undisputed.”5

The supreme court therefore reversed our judgment, remanded the cause to us, and

instructed us to consider Western’s sufficiency challenges to the jury’s finding that

Altenburg was not its borrowed employee.

                           Standards of Review and Applicable Law

        An appellant challenging the legal sufficiency of the evidence supporting an adverse


        2
          W estern Steel Co., Inc. v. Altenburg, 169 S.W .3d 347, 353 (Tex. App.–Corpus Christi 2005), rev’d
and remanded, 206 S.W .3d 121, 124 (Tex. 2006). Because our original opinion contains a description of the
factual background, we do not repeat the facts here.

        3
            See Garza v. Exel Logistics, Inc., 161 S.W .3d 473, 481 (Tex. 2005).

        4
         W estern Steel, 169 S.W .3d at 350-53. On original subm ission to this Court, the record contained
only a copy of W estern’s general liability insurance policy; it did not contain a copy of its workers’
com pensation insurance policy.

        5
         W estern Steel, 206 S.W .3d at 124. Despite W estern’s failure to subm it evidence that it was covered
by workers’ com pensation insurance, the suprem e court directed us to accept W estern’s assertion that it was
covered by workers’ com pensation insurance because Altenburg did not dispute it. See id.

                                                      2
finding on which he had the burden of proof must show that “the evidence establishes, as

a matter of law, all vital facts in support of the issue.”6 We must consider the evidence in

the light most favorable to the judgment, crediting evidence favorable to the verdict if

reasonable jurors could, and disregarding evidence contrary to the verdict unless

reasonable jurors could not.7 “If there is no evidence to support the finding, the reviewing

court will then examine the entire record to determine if the contrary proposition is

established as a matter of law.”8                Evidence that might be “some evidence” when

considered in isolation is nevertheless rendered “no evidence” when contrary evidence

shows it to be incompetent.9 “The final test for legal sufficiency must always be whether

the evidence at trial would enable reasonable and fair-minded people to reach the verdict

under review.”10 Jurors are the sole judges of the credibility of the witnesses and the

weight to be given to their testimony.11

       To prevail on a factual sufficiency challenge to an adverse finding on an issue for

which the appellant had the burden of proof, the appellant must demonstrate that the

adverse finding is against the great weight and preponderance of the evidence.12 After

considering and weighing all of the evidence, this Court can only set aside the verdict if it

       6
           Dow Chem. Co. v. Francis, 46 S.W .3d 237, 241 (Tex. 2001).

       7
           City of Keller v. W ilson, 168 S.W .3d 802, 827 (Tex. 2005).

       8
           Francis, 46 S.W .3d at 241.

       9
           City of Keller, 168 S.W .3d at 813.

       10
            Id. at 827.

       11
            Id. at 819.

       12
            Francis, 46 S.W .3d at 242.

                                                       3
is so contrary to the overwhelming weight of the evidence as to be clearly wrong and

manifestly unjust.13 When both legal and factual sufficiency challenges are raised on

appeal, the court must first examine the legal sufficiency of the evidence.14

        Recovery of workers’ compensation benefits is the exclusive remedy of an employee

covered by workers’ compensation insurance against an employer for a work-related injury

sustained by the employee.15 “An employee may have more than one employer within the

meaning of the TWCA [Texas Workers’ Compensation Act] and each employer may raise

the exclusive remedy provision as a bar to the employee’s claims.”16 “In light of the

TWCA’s definitions of employer and employee[,] the plaintiff’s claims are barred by the

exclusive remedy provision if the client company [here, Western] establishes: (1) it was

the plaintiff’s employer within the meaning of the TWCA, and (2) it was covered by a

workers’ compensation insurance policy.”17

        In determining whether Western was Altenburg’s employer, “we consider traditional

indicia, such as the exercise of actual control over the details of the work that gave rise to

the injury.”18 In Garza, the supreme court determined that the client company was the



        13
             Id.

        14
           Montemayor v. Ortiz, 208 S.W .3d 627, 647 (Tex. App.–Corpus Christi 2006, pet. denied) (citing
Glover v. Tex. Gen. Indem. Co., 619 S.W .2d 400, 401 (Tex. 1981)(per curiam )).

        15
             T EX . L AB . C OD E A N N . § 408.001(a) (Vernon 2006).

        16
           W estern Steel, 206 S.W .3d at 123 (citing W ingfoot Enters. v. Alvarado, 111 S.W .3d 134, 143 (Tex.
2003) and Garza, 161 S.W .3d at 476). The “TW CA” is the T exas W orkers’ Com pensation Act. See T EX .
L ABO R C OD E A N N . § 401.001 (Vernon 2006).

        17
             Id. (citing Garza, 161 S.W .3d at 475-77).

        18
             Id. (quoting Garza, 161 S.W .3d at 477).

                                                            4
plaintiff’s employer based on the following: (1) the plaintiff was working on the client

company’s premises when injured; (2) he was working in the furtherance of the client

company’s day-to-day business; and (3) the details of his work that caused his injury were

directed by the client company.19

                                               Analysis

        By its first issue, Western contends that as a matter of law, the evidence established

that Altenburg was its borrowed employee. Western argues that the testimony of five

witnesses, including Altenburg, established that it had the right to direct and control

Altenburg’s work.

        We begin by examining the record to determine whether there is some evidence to

support the jury’s finding that Altenburg was not Western’s borrowed employee. Altenburg

asserts that Western must show that the details of the work being done at the time of the

accident were under its control. We do not disagree with Altenburg’s characterization of

Western’s burden.

        It is undisputed that Altenburg was on Western’s premises when the accident

occurred. With respect to which company was directing the details of the work he was

performing when he was injured, Altenburg points to evidence that (1) he brought his own

hand tools, safety equipment, and gloves; (2) when injured, he was providing welding

services that did not require specific instruction; and (3) he was not under the direct

supervision of any Western employee at the time of his injury.

        However, Altenburg’s own testimony contradicts his assertions.                    Although he


        19
           Garza, 161 S.W .3d at 477; see also Bliss v. NRG Indus., 162 S.W .3d 434, 437 (Tex. App.–Dallas
2005, pet. denied) (applying Garza “traditional indicia”).

                                                    5
testified that Western provided him no training in cambering20 a beam “while it was on the

floor,” he also testified that a Western supervisor demonstrated the technique by (1)

“starting off” the first beam, (2) briefly observing Altenburg as he continued cambering the

beam, and (3) advising Altenburg that he would “check” on him periodically. On cross-

examination, Altenburg testified, in pertinent part:

       Q [Western’s counsel]: Let me ask you this. Would you agree that Western
       Steel had the right to direct and control your activities when you were a
       temporary worker on their premises?

       A [Altenburg]: Yes.

       Q: Would you agree with me, sir, that on the day that you were doing the
       cambering, on that process, Western Steel had the right to direct and control
       your activities with regards to the cambering process?

       A: Yes.

       ....

       Q: And you agree that Western Steel provided all the tools and machinery
       to complete your work there.

       A: Yes.

       Q: You agree that they provided all the safety equipment, face shields, the
       goggles, except for the gloves and work boots that you had yourself, correct?

       A: Correct.

       Q: And with regards to the specific cambering process, Western Steel’s the
       one who had the right to direct and control and instruct you on how to
       camber the beams, correct?

       A: Yes.

       Q: Western Steel supervised you while you were cambering the beams.
       Remember, you testified that the supervisors stood there and watched you


       20
            “Cam bering” involves heating a steel beam to cause it to bend in the m iddle.

                                                      6
do it?

A: Yes.

Q: Okay. So they had that right to direct and control that.

A: Yes.

....

Q: And Western Steel, the supervisors, could modify the way that you were
doing the work. They had the right to control and modify the way that you
were doing that work, correct?

A: Yes.

....

Q: Okay. Now, sir, is it not true that, before you started the cambering
process, one of the Western Steel supervisors came up to you that morning
and said, We’ve got some beams and they’re gonna need to be cambered,
correct?

A: Correct.

Q: And what they did is, they—this supervisor explained to you, generally, an
overall summary of what you were going to be doing, correct?

A: Yes.

Q: And after he gave you that overall summary, he assisted you in setting up
the work area, bringing the beams in, bringing the boards in and setting up
the three or four beams, correct?

A: I believe—When I arrived on the scene, I believe, the beams had already
been positioned.

Q: So, if Mr. Hedtke [a Western shop foreman] comes in here and says that
he worked with you in setting up the area for the purpose of cambering,—

A: Yes.

Q: —would he be correct?

A: Yes.

                                     7
      Q: Okay. And then, Mr. Hedtke said that he gave you specific instructions
      and explained to you how you needed to camber these beams. That
      occurred, correct?

      A: Correct.

      The evidence, including this testimony, established that Altenburg (1) was working

on Western’s premises when he was injured; (2) was working in furtherance of Western’s

day-to-day business; and (3) the details of the work that caused his injury were directed

by Western.21 We conclude that there is legally insufficient evidence to sustain the jury’s

finding that Altenburg was not Western’s borrowed employee.22

      We also conclude that this evidence established as a matter of law that Altenburg

was Western’s borrowed employee.23 We sustain Western’s first issue. Because of our

disposition of Western’s first issue, we need not reach its second issue.24

      We reverse the trial court’s judgment and render judgment in Western’s favor.




                                                          LINDA REYNA YAÑEZ,
                                                          Justice



Memorandum Opinion on Remand delivered
and filed this the 10th day of April, 2008.




      21
            See Garza, 161 S.W .3d at 477; Bliss, 162 S.W .3d at 437.

       22
            Francis, 46 S.W .3d at 241.

      23
            See Francis, 46 S.W .3d at 241; Garza, 161 S.W .3d at 477; Bliss, 162 S.W .3d at 437.

       24
            See T EX . R. A PP . P. 47.1.

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