

Opinion filed December 6,
2012
 
 
 
                                                                       In The
                                                                              
  Eleventh
Court of Appeals
                                                                   __________
 
                                                         No. 11-11-00229-CV 
                                                    __________
 
               SYNERGY
MANAGEMENT GROUP, L.L.C., Appellant
 
                                                             V.
 
                                 KENNETH
THOMPSON, Appellee

 
                                   On
Appeal from the 259th District Court
 
                                                             Jones
County, Texas
 
                                                     Trial
Court Cause No. 20,821 
 

 
                                                                  O
P I N I O N
            Kenneth
Thompson sued Synergy Management Group, L.L.C. for injuries he sustained in an
accident at its facility.  The jury found in Thompson’s favor on his negligence
and gross negligence claims and awarded him actual and exemplary damages.  The
trial court entered a judgment in accordance with the jury’s verdict.  We
affirm.
Background
Facts
            Thompson
was employed by Alliance Savings Co., Inc. and was assigned to work at
Synergy’s tire recycling plant.  Thompson was injured on July 2, 2004, when his
left arm got stuck in a conveyor belt at the plant.  Thompson sustained broken
bones during the incident, and he had two surgeries to repair the fractures.    
            After
the accident, Thompson’s medical bills were paid by workers’ compensation
insurance, and Thompson was paid weekly workers’ compensation benefits.  The
medical bills and weekly benefits were apparently paid under a workers’
compensation insurance policy on which “Alliance Savings Company” was listed as
an additional insured.  Later, Thompson filed suit against Synergy; Alliance
Savings Co., Inc.; and others.  In his petition, Thompson alleged that, at the
time of his accident, he was an employee of Synergy and Alliance Savings Co.,
Inc.  He alleged negligence and gross negligence claims against Synergy and
Alliance Savings Co., Inc.  In its answer, Synergy alleged an affirmative
defense that Thompson’s claims against it were barred by the exclusive remedy
provision of the Texas Workers’ Compensation Act (TWCA).  See Tex. Lab. Code Ann. § 408.001(a) (West
2006).
            Synergy
filed a traditional motion for summary judgment based on its exclusive remedy
defense.  Following a hearing, the trial court denied Synergy’s motion. 
Synergy was the only remaining defendant at the time of trial.  The case
proceeded to a jury trial.  After the parties presented evidence to the jury,
Synergy presented evidence to the trial court relating to its exclusive remedy
defense.  Synergy moved for a directed verdict on the defense.  The trial court
denied Synergy’s motion.  The jury found in Thompson’s favor on his negligence
and gross negligence claims, and it awarded him $670,000 in actual damages and
$1,000,000 in exemplary damages.  Synergy filed a motion for judgment
notwithstanding the verdict (JNOV) based on its exclusive remedy defense.  Following
a hearing, the trial court denied the motion and entered its judgment.
Issue
on Appeal
            In a
single appellate issue, Synergy contends that the trial court erred when it
ruled that the exclusive remedy provision in the TWCA did not bar Thompson’s
claims against it.  In its issue, Synergy does not challenge a specific ruling
by the trial court.  We interpret Synergy’s issue as challenging the trial
court’s denial of its motion for JNOV.  As shown below, the analysis of
Synergy’s issue is the same whether it is viewed as a challenge to the trial
court’s denial of Synergy’s motion for directed verdict or of its motion for
JNOV.
Standard
of Review
            A
trial court may disregard a jury’s findings and grant a motion for JNOV only
when a directed verdict would have been proper.  Fort Bend Cnty. Drainage
Dist. v. Sbrusch, 818 S.W.2d 392, 394 (Tex. 1991); Clear Lake City Water
Auth. v. Clear Lake Country Club, L.P., 340 S.W.3d 27, 33 (Tex. App.—Houston
[1st Dist.] 2011, no pet.).  We review a trial court’s ruling on a motion for
directed verdict or a motion for JNOV under a legal-sufficiency standard.  City
of Keller v. Wilson, 168 S.W.3d 802, 823–24 (Tex. 2005); City of Houston
v. Proler, 373 S.W.3d 748, 754 (Tex. App.—Houston [14th Dist.] 2012, no
pet.).  
            The
exclusive remedy provision of the TWCA is an affirmative defense that the
defendant must plead and prove.  Exxon Corp. v. Perez, 842 S.W.2d 629,
630–31 (Tex. 1992); Warnke v. Nabors Drilling USA, L.P., 358 S.W.3d 338,
343 (Tex. App.—Houston [1st Dist.] 2011, no pet.).  A directed verdict in favor
of a defendant is proper if the evidence conclusively establishes a defense to
the plaintiff’s cause of action.  Prudential Ins. Co. of Am. v. Fin. Review Servs.,
Inc., 29 S.W.3d 74, 77 (Tex. 2000); Martin v. Birenbaum, 193 S.W.3d
677, 680 (Tex. App.—Dallas 2006, pet. denied); Whitney Nat’l Bank v. Baker,
122 S.W.3d 204, 207 (Tex. App.—Houston [1st Dist.] 2003, no pet.).  A trial
court should grant a motion for JNOV when the moving party has established each
element of its defense so conclusively that reasonable minds could not differ
as to the truth of the controlling facts.  Brown v. Zimmerman, 160
S.W.3d 695, 702 (Tex. App.—Dallas 2005, no pet.).  When a party challenges the
legal sufficiency of the evidence supporting an adverse finding on an issue on
which the party had the burden of proof, it must show that the evidence
establishes, as a matter of law, all vital facts in support of the issue.  Dow
Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001); PopCap Games, Inc.
v. MumboJumbo, LLC, 350 S.W.3d 699, 710 (Tex. App.—Dallas 2011, pet.
denied).
Synergy’s
Affirmative Defense
             Synergy’s
exclusive remedy defense was based on the provisions of the Staff Leasing
Services Act (SLSA).  The SLSA is found in Chapter 91 of the Texas Labor Code. 
See Tex. Lab. Code Ann. §§
91.001-.063 (West 2006 & Supp. 2012).  Synergy argues that it and Alliance
Savings Co., Inc. were co-employers of Thompson under the SLSA; that Alliance
Savings Co., Inc. obtained workers’ compensation insurance; and that,
therefore, Thompson’s claims against it were barred by the exclusive remedy
provision of the TWCA.  Synergy contends that it proved the following facts to
establish its exclusive remedy defense: (1) that Alliance Savings Co., Inc. was
a licensed staff leasing services provider; (2) that Thompson was employed by
Alliance Savings Co., Inc. and assigned to work at Synergy; and (3) that
Alliance Savings Co., Inc. obtained workers’ compensation insurance that
covered Thompson.
            In
its brief, Synergy relies on evidence that it presented to the trial court in
support of its motion for summary judgment.  In our review, we cannot consider
summary judgment evidence that was not admitted during the trial on the
merits.  Paselk v. Rabun, 293 S.W.3d 600, 612 (Tex. App.—Texarkana 2009,
pet. denied).  Additionally, some of the exhibits, including affidavits, that Synergy
attached to its motion for JNOV were not admitted at trial.  Synergy relies on these
exhibits to support its argument on appeal.  We cannot consider these exhibits for
a number of reasons.  First, they were not admitted as evidence during trial. 
Second, the affidavits would have been inadmissible as trial evidence.  Stephens
v. City of Reno, 342 S.W.3d 249, 253 (Tex. App.—Texarkana 2011, no pet.). 
Third, if requested, the trial court could not have allowed Synergy to offer
additional evidence after the jury reached its verdict.  Tex. R. Civ. P. 270 (“[I]n a jury case no
evidence on a controversial matter shall be received after the verdict of the
jury.”); Univ. of Tex. at Austin v. Ables, 914 S.W.2d 712, 718 (Tex.
App.—Austin 1996, no writ).  Therefore, in our analysis of Synergy’s issue, we
must consider only the evidence that was admitted during the trial on the
merits.
Analysis
            Synergy
contends that the evidence established that Alliance Savings Co., Inc. was a
licensed staff leasing company under the SLSA.  As defined in the SLSA, a “[l]icense
holder” is “a person licensed under this chapter to provide staff leasing
services.”  Section 91.001(11).  A “[c]lient company” is “a person that
contracts with a license holder and is assigned employees by the license holder
under that contract.”  Id. § 91.001(3).  Under the SLSA, a license
holder may elect to obtain workers’ compensation insurance coverage for its
assigned employees.  Id. § 91.042(a).  If the license holder elects
to obtain such coverage, the policy also covers the client company.  Id. §§
91.006(a), 91.042(c); Garza v. Exel Logistics, Inc., 161 S.W.3d 473, 478
(Tex. 2005); Vega v. Silva, 223 S.W.3d 746, 748 (Tex. App.—Dallas 2007,
no pet.).  Under Section 91.042(c) of the SLSA, the license holder and the client
company are considered to be co-employers for workers’ compensation insurance
purposes.  If a license holder elects to obtain workers’ compensation
insurance, the license holder and the client company are both protected by the
exclusive remedy provision of the TWCA.  Section 91.042(c); Tex. Workers’
Comp. Ins. Fund v. Del Indus., Inc., 35 S.W.3d 591, 594 (Tex. 2000); Vega,
223 S.W.3d at 748.        
            Synergy
did not offer evidence that Alliance Savings Co., Inc. was a licensed staff
leasing services company.  Synergy cannot, therefore, claim the benefit of Alliance
Savings Co., Inc.’s workers’ compensation insurance.  Hodges v. Tex. TST,
Inc., 303 S.W.3d 880, 882 (Tex. App.—Eastland 2009, no pet.).  The SLSA
provides that a license holder and its client company are co-employers for
workers’ compensation insurance purposes.  Section 91.042(c).  Co-employer
status of a client company depends on the staff leasing services company being
a license holder.  Because Synergy failed to establish that Alliance Savings
Co., Inc. was a license holder, Synergy and Alliance Savings Co., Inc. could
not be co-employers of Thompson under the SLSA, and Synergy was not protected
by the exclusive remedy provision in the TWCA by virtue of the SLSA.  See id. 

            During
trial, Synergy introduced into evidence a copy of a Staff Leasing Services
License that was issued to “Alliance Staffing Solutions, Inc.”  However,
Synergy did not present evidence explaining the relationship, if any, between
Alliance Savings Co., Inc. and Alliance Staffing Solutions, Inc.  In the
summary judgment proceedings and in its motion for JNOV, Synergy attempted to
establish that Alliance Savings Co., Inc. was doing business under the name,
Alliance Staffing Solutions, Inc.  As stated above, we cannot consider summary
judgment evidence or exhibits to Synergy’s motion for JNOV that were not
admitted at trial.  
            Even
if we could consider the summary judgment evidence and the motion-for-JNOV
exhibits, we would conclude that Synergy failed to meet its burden of showing
that Alliance Savings Co., Inc. was a license holder.  Section 91.011 of the
SLSA prohibits a person from engaging in staff leasing services without a
license.  In this case, Alliance Staffing Solutions, Inc. was the license
holder. Section 91.018(a) prohibits a license holder from conducting business
“under any name other than that specified in the license” or “under any
fictitious or assumed name without prior written authorization from the
department.”  Section 91.018(a) also provides that licenses issued under the
SLSA are not assignable.  Based on these provisions, Alliance Staffing
Solutions, Inc. could not conduct business under any other name, such as
Alliance Savings Co., Inc.      
            Synergy
did not raise an affirmative defense that Thompson was its borrowed servant at
the time of his accident.  See Hodges, 303 S.W.3d at 882; Wesby v.
Act Pipe & Supply, Inc., 199 S.W.3d 614, 617–18 (Tex. App.—Dallas 2006,
no pet.); see also Wingfoot Enters. v. Alvarado, 111 S.W.3d 134,
146–49 (Tex. 2003).  Nor did Synergy raise an affirmative defense of waiver or
election of remedies based on Thompson’s acceptance of workers’ compensation
benefits after his accident.  See Medina v. Herrera, 927 S.W.2d 597, 599–600
(Tex. 1996); Berry v. Gregg Indus. Servs., Inc., 907 S.W.2d 4, 6 (Tex.
App.—Tyler 1994, writ denied).  Rather, Synergy’s exclusive remedy defense was
based on the SLSA.        
            The
evidence did not conclusively establish Synergy’s exclusive remedy defense. 
Therefore, the trial court did not err when it denied Synergy’s motion for
JNOV.  Synergy’s appellate issue is overruled.
This
Court’s Ruling
            The judgment of the
trial court is affirmed.
 
 
                                                                                                TERRY
McCALL
                                                                                                JUSTICE
                  
             
December 6, 2012
Panel consists of: Wright, C.J.,
McCall, J., and Hill.[1]
 




                [1]John G. Hill, Former Chief Justice, Court of Appeals,
2nd District of Texas at Fort Worth, sitting by assignment.


