                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-13-00295-CV
                           ____________________

       BECON CONSTRUCTION COMPANY, INC. AND BECHTEL
            EQUIPMENT OPERATIONS, INC., Appellants

                                        V.

  JOSE ALONSO, MIGUEL BETANCOURT, JOSE RODRIGUEZ, LUIS
  GUAJARDO, ALEJANDRO SALINAS, AND RICARDO SALINAS JR.,
                        Appellees
_______________________________________________________            ______________

                    On Appeal from the 58th District Court
                          Jefferson County, Texas
                         Trial Cause No. A-190,853
________________________________________________________            _____________

                                    OPINION

      In this permissive appeal, we address whether the exclusive remedy defense

provided by the Texas Workers’ Compensation Act applies on a worksite that was

subject to a contractor-controlled insurance program. See Tex. Lab. Code Ann. §§

406.123, 408.001 (West 2006). Because the summary-judgment proof of the

appellants, who were subcontractors on the site, established that they were entitled


                                         1
to rely on the exclusive remedy defense, the appellants’ joint motion for summary

judgment should not have been denied. The trial court also erred by granting the

appellees’ no-evidence cross-motion for summary judgment, which asserted that

the appellants could not rely on the exclusive remedy defense because they

provided the trial court with no evidence to show that the general workplace

insurance plan in which the appellants were enrolled complied with several Texas

Department of Insurance regulations that apply to such plans. We grant the

appellants’ joint motion for summary judgment, we deny the appellees’ no-

evidence cross-motion for summary judgment, and we order that the appellees take

nothing on their claims against the appellants.

                                    Background

      In January 2011, Jose Alonso, Miguel Betancourt, Jose Rodriguez, Luis

Guajardo, Alejandro Salinas, and Ricardo Salinas Jr. (the employees and appellees)

were on a scaffold working at a refinery on a project that involved work that other

contractors and subcontractors were performing when a crane collapsed. All of the

appellees who are parties to this suit, except Luis Guajardo, were employees of

A&L Industrial Services, Inc. when the incident occurred; Luis was employed by

Empire Scaffold, LLC. Initially, the employees sued Motiva Enterprises LLC and




                                          2
Becon Construction Company, Inc.; later, they sued Bechtel Equipment

Operations, Inc. in the same suit.

      When the crane collapsed, A&L Industrial and Empire Scaffold were

subcontractors on Motiva’s project. Both were subcontractors to Performance

Contractors, Inc., and Performance was working on the project under a contract

with Motiva. The Motiva/Performance contract obligated Performance to provide

labor and equipment on the project and required Performance to take directions on

the project from the Bechtel-Jacobs Joint Venture. The various contracts in

evidence reflect that the Bechtel-Jacobs Joint Venture was the contractor placed in

charge of managing the overall project.

      The various contracts on the project also included clauses requiring the

various contractors and subcontractors to have various types of insurance for the

project, including a workers’ compensation policy that covered their respective

employees while they worked on the project. The parties to the prime contract on

the project were Motiva, Jacobs Engineering Group Inc., and Bechtel Corporation.

The contract, with respect to the provisions that concern insurance for the project,

required the Bechtel-Jacobs Joint Venture, the project’s general contractor, to

“bring into effect a Contractor Controlled Insurance Program[.]” With respect to

the workers’ compensation coverage for the project, the program for the project

                                          3
obligated the Bechtel-Jacobs Joint Venture to obtain a policy covering all of the

contractors and subcontractors who were to work on the project.1

      The parties do not dispute that when the collapse occurred, Becon

Construction and Bechtel Equipment (the subcontractors) were providing either

construction equipment or services for the project under their respective

subcontracts. Under their respective subcontracts with Performance, A&L

Industrial and Empire Scaffold were not obligated to take direction on their work

from the Bechtel-Jacobs Joint Venture; they were under contract to Performance.

But, they were indirectly required to take direction from the Bechtel-Jacobs Joint

Venture, as Performance’s contract with Motiva required that Performance take

direction on its work from the Bechtel-Jacobs Joint Venture.

      There is also no dispute that Becon Construction and Bechtel Equipment

were named as insureds on the workers’ compensation policy obtained for the

project by the Bechtel-Jacobs Joint Venture. The summary-judgment evidence

included various insurance policy endorsements and schedules, and these indicate
      1
       The contract contains an exception to the single-policy-for-the-project
requirement, and allowed the contractors and subcontractors, by express
agreement, to be excluded from the contract requirement that they enroll in the
general workplace insurance plan. With respect to A&L Industrial and Empire
Scaffold, the employers of the appellees, there was no summary-judgment
evidence indicating that they had express agreements that excluded them from the
requirement to enroll in the general workplace insurance plan created for the
project.
                                        4
that the Bechtel-Jacobs Joint Venture, Becon Construction, Bechtel Equipment,

Performance, A&L Industrial, and Empire Scaffold, as well as numerous other

entities not subject to the appeal, were named as additional insureds on the

workers’ compensation policy that the Bechtel-Jacobs Joint Venture procured for

the project. In the Motiva/Performance contract, Performance and its

subcontractors were required to enroll as insureds in the general workplace

insurance plan created for the project.

      The employees who sued were injured when a crane owned by Bechtel

Equipment and operated by Becon Construction collapsed. The employees who

sued were present and were working on the project because their respective

employers, A&L Industrial and Empire Scaffold, had contracts with Performance.

The employees of Empire Scaffold and A&L Industrial who sued collected

compensation benefits under the workers’ compensation policy obtained under the

requirements obligating the Bechtel-Jacobs Joint Venture to procure the insurance

coverage for the contractors and subcontractors who were to work on the project.

                              The Parties’ Arguments

      Arguing that the Act’s exclusive remedy provision limited the employees to

their compensation benefits and precluded them from bringing their common law

damage claims, Becon Construction and Bechtel Equipment moved for summary

                                          5
judgment on all of the claims of the employees that sued them. See Tex. R. Civ. P.

166a(c). In their appeal, Becon Construction and Bechtel Equipment contend the

trial court erred by not granting their joint motion for summary judgment, and they

argue the trial court should have rendered a take-nothing judgment in their favor on

the employees’ claims.

      In response to Becon Construction’s and Bechtel Equipment’s joint motion

for summary judgment, the employees filed a combined response and no-evidence

motion for summary judgment. See generally Tex. R. Civ. P. 166a(i) (allowing a

party to move for summary judgment on the ground that there is no evidence to

support specified essential elements of the other party’s claims). In their response

and cross-motion, the employees argue that A&L Industrial and Empire Scaffold

were performing their work under their master contracts with Performance; that the

master contracts predate the Motiva/Performance contract and their subcontracts;

and that the terms of their master contracts, which also included workers’

compensation requirements, control the legal relationship with respect to who was

required to provide a compensation policy for their employers. The employees

conclude that the insurance provisions found in their master contracts with

Performance take precedence over the insurance requirements found in the

Motiva/Performance contract. Additionally, the employees’ response and cross-

                                         6
motion argues that the general workplace insurance plan created for Motiva’s

project failed to comply with several regulations of the Texas Department of

Insurance that apply to such plans. Specifically, the employees note in their

response that the contracts governing the general workplace insurance plan on

Motiva’s project did not provide that the Bechtel-Jacobs Joint Venture was to

continue to provide compensation coverage if the general workplace insurance

plan were to be terminated, and they argue that the Bechtel-Jacobs Joint Venture

failed to provide the Texas Department of Insurance with the estimated number of

employees affected by the general workplace insurance plan.

      The trial court denied Becon Construction’s and Bechtel Equipment’s joint

motion, and it granted the no-evidence motion filed by the employees. The trial

court’s order on the parties’ respective motions included a provision that gave

Becon Construction and Bechtel Equipment the opportunity to have its rulings

reviewed in an interlocutory appeal. After the trial court granted the appellants the

right to pursue an interlocutory appeal from its order on these motions, we agreed

to hear the appeal. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(d) (West Supp.

2014); see also Tex. R. App. P. 28.3.




                                         7
                                Standard of Review

      We review a trial court’s ruling on a motion for summary judgment using a

de novo standard of review. See Provident Life & Accident Ins. Co. v. Knott, 128

S.W.3d 211, 215 (Tex. 2003). With respect to their joint motion, Becon

Construction and Bechtel Equipment were required to show that no genuine issue

of material fact existed, and to show that they were entitled to judgment as a matter

of law. Tex. R. Civ. P. 166a(c); see also Knott, 128 S.W.3d at 216. On appeal, we

review the summary-judgment record “in the light most favorable to the

nonmovant, indulging every reasonable inference and resolving any doubts against

the motion.” City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005).

      Becon Construction and Bechtel Equipment also appeal from the trial

court’s ruling on the employees’ no-evidence motion for summary judgment. “A

no-evidence summary judgment is essentially a pretrial directed verdict, and we

apply the same legal sufficiency standard in reviewing a no-evidence summary

judgment as we apply in reviewing a directed verdict.” King Ranch, Inc. v.

Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003).

      The standards under Rule 166a(i) of the Texas Rules of Civil Procedure

govern trial courts in resolving no-evidence motions. See Tex. R. Civ. P. 166a(i).

To prevail on a no-evidence summary-judgment motion, a movant must establish

                                         8
that there is no evidence of one or more essential elements of the adverse party’s

cause of action or affirmative defense. Id.; Fort Worth Osteopathic Hosp., Inc. v.

Reese, 148 S.W.3d 94, 99 (Tex. 2004). To defeat the motion, the nonmovant must

present evidence raising a genuine issue of material fact as to each of the elements

challenged by the moving party’s no-evidence motion. Id. In responding to a no-

evidence motion for summary judgment, the nonmovant must produce more than a

scintilla of evidence to avoid summary judgment. Ford Motor Co. v. Ridgway, 135

S.W.3d 598, 600 (Tex. 2004). A no-evidence motion may be granted only when

“(a) there is a complete absence of evidence of a vital fact, (b) the court is barred

by rules of law or of evidence from giving weight to the only evidence offered to

prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a

mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital

fact.” Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)

(citing Robert W. Calvert, “No Evidence” and “Insufficient Evidence” Points of

Error, 38 Texas L. Rev. 361, 362-63 (1960)). More than a scintilla of evidence

exists when the evidence “rises to a level that would enable reasonable and fair-

minded people to differ in their conclusions.” Transp. Ins. Co. v. Moriel, 879

S.W.2d 10, 25 (Tex. 1994) (citing William Powers, Jr. & Jack Ratliff, Another




                                          9
Look at “No Evidence” and “Insufficient Evidence,” 69 Texas L. Rev. 515, 522,

523 (1991)).

      In this case, the parties’ dispute concerns whether the Act’s exclusive

remedy defense provides Becon Construction and Bechtel Equipment a defense to

the employees’ common law injury claims. The resolution of the parties’

arguments on that question requires that we construe the Act. On appeal, a trial

court’s interpretation of a statute is reviewed as a question of law, using a de novo

standard. State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006). After construing the

statute, we determine whether the trial court properly resolved the respective

motions. See Rose v. Ben C. Hebert Heirs, 305 S.W.3d 874, 878 (Tex. App.—

Beaumont 2010, no pet.).

      The trial court’s resolution of the motions also required the trial court to

construe the various contracts in evidence and to decide whether the parties

intended to require A&L Industrial and Empire Scaffold to be governed by the

insurance procured to establish the general workplace insurance plan or by the

insurance required by the master service agreements that their employers had with

Performance. Unambiguous written instruments are construed by courts, as matters

of law. Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). “Whether a contract is

ambiguous is a question of law for the court to decide by looking at the contract as

                                         10
a whole in light of the circumstances present when the contract was entered.” Id. at

394. To determine the parties’ intent under a contract, courts “must examine and

consider the entire writing in an effort to harmonize and give effect to all the

provisions of the contract so that none will be rendered meaningless.” J.M.

Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003). If a court properly

concludes that a relevant contract term is ambiguous, the court should deny a

request for summary judgment “because the interpretation of the instrument

becomes a fact issue.” Coker, 650 S.W.2d at 394.

                                     Analysis

       The exclusive remedies provision of the Act states: “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).

Section 406.123 of the Act allows general contractors and subcontractors to enter

into written agreements “under which the general contractor provides workers’

compensation insurance coverage to the subcontractor and the employees of the

subcontractor.” See id. § 406.123(a). When such an agreement is made, it “makes

the general contractor the employer of the subcontractor and the subcontractor’s

                                        11
employees only for purposes of the workers’ compensation laws of this state.” Id. §

406.123(e).

      According to the employees, the exclusive remedy defense does not apply

because Performance and the respective subcontractors for whom they were

working did not have written agreements that required Performance to provide

them with the workers’ compensation insurance coverage on the project at issue.

The employees note that Performance, their general contractor for the project, was

not required to obtain the compensation policy for the project on which they were

injured; they conclude that because Performance did not obtain the policy, the

provisions in the Act that relate to general workplace insurance plans did not apply

to the project. They further note that their respective employers were required

under their master service agreements with Performance to provide a compensation

policy for the work done by Empire Scaffold and A&L Industrial, which

agreements predate the Motiva project.

      The employees’ argument that the Act does not extend to the subcontractors

they sued relies on language in Entergy Gulf States, Inc. v. Summers. See 282

S.W.3d 433, 436 (Tex. 2009). Summers, however, involved a worksite where the

issue was whether the premises owner, Entergy, could utilize the exclusive remedy

defense because it was not the general contractor on the project. Id. at 435-36. The

                                         12
Texas Supreme Court decided that even though Entergy was the premises owner, it

could nevertheless rely on the exclusive remedy defense provided by the Act under

the general worksite insurance plan that was created for that project. Id. at 444-45.

With respect to the Motiva project, however, the question is not whether Motiva

can benefit from the general workplace insurance plan. The question before us is

whether various tiers of subcontractors are entitled to rely on the exclusive remedy

defense given the structure of the contractual relationships that were created for the

Motiva project. Here, the defendants seeking to rely on the exclusive remedy

defense were subcontractors who were working on the Motiva project along with

the employers of the employees who sued; thus, the case now before us involves

tiers of relationships that were not present on Entergy’s project.

      Nevertheless, the Texas Supreme Court’s decision in Summers is instructive.

Id. In concluding that Entergy could raise the exclusive remedy defense as a bar to

the common law claims of the employees that sued it, the Texas Supreme Court

interpreted the Act “in the context of a policy that encourages the provision of

workers’ compensation coverage to all workers on a given work site[.]” Id. at 444.

As recognized by another case decided by the Texas Supreme Court after it

decided Summers, “[a] general workplace insurance plan that binds a general

contractor to provide workers’ compensation insurance for its subcontractors and

                                          13
its subcontractors’ employees achieves the Legislature’s objective” with respect to

worksites where multitiered relationships exist. HCBeck, Ltd. v. Rice, 284 S.W.3d

349, 350, 359 (Tex. 2009). Interpreting the Act “in a way that favors blanket

coverage to all workers on a site aligns more closely with the Legislature’s

‘decided bias’ for coverage.” Id. at 359 (citing Wingfoot Enters. v. Alvarado, 111

S.W.3d 134, 140 (Tex. 2003)). Given the Texas Supreme Court’s subsequent

observations in Rice about worksites involving multiple tiers of contractors, we

conclude that the employees’ reliance on Entergy as support for their argument is

misplaced.

      With respect to the various contractual insurance provisions that are at issue,

the contracts are not ambiguous. Collectively, the contracts contain an

unambiguous expression that makes it clear that Motiva, the Bechtel-Jacobs Joint

Venture, Becon Construction, Bechtel Equipment, Performance, Empire Scaffold,

and A&L Industrial intended to create a general workplace insurance plan

providing a single workers’ compensation insurance policy covering all of their

respective employees.

      The prime contract between the Bechtel-Jacobs Joint Venture and Motiva

required Bechtel-Jacobs to establish a contractor-controlled insurance program,

creating a general workplace insurance plan for the project. Motiva’s contract with

                                         14
Performance required that Performance and its subcontractors enroll in the general

workplace insurance plan created by the Bechtel-Jacobs Joint Venture. The

contract between Motiva and Performance also required that Performance “take

direction from . . . the MANAGING CONTRACTOR[,]” which was defined

elsewhere in that same agreement as “the BECHTEL-JACOBS, JOINT

VENTURE[.]”

      In the trial court and on appeal, the employees also argue that the insurance

provisions governing their work were not those found in Performance’s contract

with Motiva. Instead, the employees contend that their work on the project was

governed by the master service agreements found in the respective contracts

between Empire Scaffold, A&L Industrial, and Performance. The insurance

provision at issue that is in both of the master service agreements provides:

      Subcontractor shall at its own expense purchase and maintain in a company
      or companies lawfully authorized to do business in the State of Louisiana
      and in companies satisfactory to Contractor, insurance coverage, as
      specified in this section. Such insurance shall be maintained until final
      payment by Owner and will protect Contractor and the Subcontractor from
      claims set forth below which may arise out of or result from the
      Subcontractor’s operations under the Contract and for which the Contractor
      may be liable, whether such operations be by the Subcontractor or by
      anyone directly or indirectly employed by any of them, or by anyone for
      whose acts any of them may be liable.

      The employees note that when their respective employers completed work

on the Motiva project, each signed work release orders referencing the respective

                                         15
master service agreements as the controlling contract. The employees conclude that

the insurance provisions in the master service agreements controlled the insurance

requirements for their employers’ work on Motiva’s project. They contend that the

master service agreements required their respective employers to purchase the

compensation coverage that covered them at the time of the incident, and they

conclude that as a result, they were not—at the time they were injured—subject to

the insurance requirements of the general workplace insurance plan that the

Bechtel-Jacobs Joint Venture established for the project.

      Even if we were to accept that Empire Scaffold and A&L Industrial were

performing their work on the project under the terms of their master service

agreements, we are not persuaded that the insurance provisions in the master

service agreements prevented Empire Scaffold and A&L Industrial from

complying with their respective contracts with Performance by enrolling their

employees in the general workplace insurance plan that the Bechtel-Jacobs Joint

Venture established on the project. In this case, it was undisputed that Empire

Scaffold’s and A&L Industrial’s employees were enrolled in the general workplace

plan created for the project.

      While the respective master service agreements required that Empire

Scaffold and A&L Industrial purchase workers’ compensation coverage covering

                                         16
their work, the summary-judgment evidence conclusively established that Empire

Scaffold and A&L Industrial adjusted their contract prices for the Motiva project to

account for the fact that the insurance on Motiva’s project was to be provided

through a general workplace insurance plan. The purchase provision in the

respective master agreements requiring Empire Scaffold and A&L Industrial to

purchase the coverage, under the circumstances, amounts merely to an accounting

matter. By adjusting the prices they charged for their work they were being hired to

perform, Empire Scaffold and A&L Industrial effectively purchased the coverage

for their work on Motiva’s project under the terms of the master service

agreements they had with Performance. That various insurance provisions are

found in the various contracts in this case did not create a material dispute of fact

regarding whether Empire Scaffold and A&L Industrial intended their employees

to be covered while working on the Motiva project under the general workplace

insurance plan.

      With respect to the work the employees were doing at the time the crane

collapsed, we conclude that the summary-judgment evidence conclusively

establishes that A&L Industrial and Empire Scaffold were enrolled in the general

workplace insurance plan established on the Motiva project. We further conclude

that the summary-judgment evidence conclusively establishes that the employees

                                         17
collected workers’ compensation benefits through the general workplace insurance

plan.

        The question not yet answered, however, is whether the exclusive remedy

defense was intended to benefit all tiers of subcontractors on a project governed by

a general workplace insurance plan. With respect to that question, the Act provides

that the exclusive remedy defense applies not only to the employer but the

employer’s agents. Tex. Lab. Code Ann. § 408.001. Additionally, the Act provides

a broad definition of who may qualify as a “general contractor” by defining the

term to include “a person who undertakes to procure the performance of work or a

service, either separately or through the use of subcontractors.” Id. § 406.121(1)

(West 2006). The Act has been interpreted to allow a premise owner to enter into

an agreement that allowed it to benefit from the exclusive remedy defense of the

Act, reasoning that a premise owner may qualify to be a general contractor as

defined by the Act. Summers, 282 S.W.3d at 444; Tex. Lab. Code Ann. §

406.123(a).

        Addressing whether the exclusive remedy defense applies throughout all

tiers of contractors at a worksite governed by a general workplace insurance plan,

two of our sister courts have concluded that the defense is available. In a case that

involved a worksite arrangement similar but not identical to the one at issue here,

                                         18
the First Court of Appeals explained that where general workplace insurance plans

exist, “the purposes of the Act are best served by deeming immune from suit all

subcontractors and lower tier subcontractors who are collectively covered by

workers’ compensation insurance.” Etie v. Walsh & Albert Co., Ltd., 135 S.W.3d

764, 768 (Tex. App.—Houston [1st Dist.] 2004, pet. denied). In Etie, the First

Court concluded that the deemed employment relationship extends throughout all

tiers of subcontractors. Id. Similarly, the San Antonio Court of Appeals has stated

that for sites governed by general workplace insurance plans, all of the employees

covered by the compensation plan for the site are treated as “‘fellow employees’”

for the purposes of the Act. See Garza v. Zachry Constr. Corp., 373 S.W.3d 715,

721 (Tex. App.—San Antonio 2012, pet. denied).

      We agree with Bechtel Equipment and Becon Construction that the various

contracts governing the Motiva project qualified Bechtel Equipment and Becon

Construction for the defense the Legislature gave employers against common law

damage claims under the Act. See Tex. Lab. Code Ann. §§ 406.121(1), 406.123,

408.001. The various contracts effectively made Becon Construction and Bechtel

Equipment agents of the Bechtel-Jacobs Joint Venture for purposes of

compensation coverage; consequently, both Becon Construction and Bechtel

Equipment were entitled to rely on the exclusive remedy defense against the claims

                                        19
of the employees who sued them. Because they were participating subcontractors

on a site utilizing a general workplace insurance plan authorized by the Act, we

hold that Becon Construction and Bechtel Equipment are entitled to assert the

exclusive remedy defense to the same extent that the defense could have been

asserted by the Bechtel-Jacobs Joint Venture. See id. § 408.001(a).

      In the trial court and on appeal, the employees also argue that the exclusive

remedy defense does not apply because the summary-judgment evidence showed

that the general workplace plan did not comply with certain administrative rules

for such plans promulgated by the Texas Department of Insurance. According to

the employees, the general workplace plan on Motiva’s project failed to comply

with administrative rules governing such plans because it fails to state that the

subcontractor and the subcontractor’s employees are employees of the general

contractor for the sole purpose of workers’ compensation coverage, and fails to

state the estimated number of workers that are affected by the agreement. See 28

Tex. Admin. Code § 112.101 (2014) (Tex. Dep’t of Ins., Div. of Workers’ Comp.,

Scope of Liab. for Comp.). Because the general workplace insurance plan on

Motiva’s project violated these administrative rules, the employees contend that

Becon Construction and Bechtel Equipment cannot rely on the Act’s exclusive

remedy defense. In their brief, Becon Construction and Bechtel Equipment argue

                                        20
that the Department’s administrative regulations are directory, not mandatory, and

that the Department did not create an administrative penalty stripping entities of

the exclusive remedy defense provided by the Legislature in the Act for violations

of these specific regulations.

      Neither the Act nor the regulations governing contractor-controlled

insurance programs in the Administrative Code describe the penalty for violating

the administrative rules at issue. See Tex. Lab. Code Ann. §§ 406.123, 408.001; 28

Tex. Admin. Code § 112.101(a)(2), (a)(6). Given the Legislature’s “decided bias in

favor of employers electing to provide coverage” through a policy “that

encourages the provision of workers’ compensation coverage to all workers on a

given work site,” the Act should not be interpreted in the manner the employees

argue. The employees’ interpretation would discourage contractors from becoming

involved in worksites governed by general workplace insurance plans and might

prevent some employees who would otherwise be covered by insurance from being

covered under these types of policies due to the violation of regulations, as it does

not appear that the Legislature intended for these types of violations to strip

employers of defenses or to cause employees to lose the benefits of their coverage.

See Summers, 282 S.W.3d at 444; Wingfoot Enters. v. Alvarado, 111 S.W.3d 134,

140 (Tex. 2003). We conclude that the proper penalty for the violations raised by

                                         21
the employees is a matter that should be left to the Texas Department of Insurance.

See Tex. Lab. Code Ann. § 408.001(a).

      The employees also contend that Becon Construction and Bechtel

Equipment failed to conclusively establish that the contracts governing the general

workplace insurance plan required the Bechtel-Jacobs Joint Venture to continue to

provide compensation coverage if the plan were to be terminated. The employees

argue that a possibility exists under the contracts at issue that the insurance

coverage on the project could be discontinued. However, nothing in the summary-

judgment evidence shows that the compensation carrier that is obligated to pay the

employees their compensation benefits has a right to terminate its obligation to pay

these employees benefits if the general workplace insurance plan were to be

discontinued. There is also no evidence showing that the Bechtel-Jacobs Joint

Venture retained the right to terminate its obligation to pay premiums on the

coverages put in place on Motiva’s project.

      Regardless of what might or might not happen in the future, evaluating

whether a general workplace insurance plan provides a defendant with an exclusive

remedy defense requires that courts “look at what did happen, not what might

happen.” HCBeck, 284 S.W.3d at 359 n.4. In this case, conclusive summary-

judgment evidence shows that the employees collected compensation benefits

                                        22
under coverage put in place based on the general workplace insurance plan

established by the Bechtel-Jacobs Joint Venture for Motiva’s project.

                                   Conclusion

      We hold that the summary-judgment evidence conclusively establishes that

the exclusive remedy defense of the Act applied to all of the claims made by the

employees who sued. See Tex. Lab. Code Ann. §§ 406.123, 408.001. We hold the

trial court erred by granting the employees’ no-evidence motion for summary

judgment and by denying Becon Construction’s and Bechtel Equipment’s joint

motion for summary judgment. We reverse the trial court’s order.

      Under the Rules of Appellate Procedure, we must then render the judgment

the trial court should have rendered on the motions that are the subject of the

appeal. Tex. R. App. P. 43.2(c). Therefore, we grant Becon Construction’s and

Bechtel Equipment’s joint motion for summary judgment, and we deny the

employees’ no-evidence motion for summary judgment. We further order that Jose

Alonso, Miguel Betancourt, Jose Rodriguez, Luis Guajardo, Alejandro Salinas, and

Ricardo Salinas Jr. recover nothing on all of their claims against Becon




                                        23
Construction and Bechtel Equipment, as these are the rulings the trial court should

have rendered. 2

      REVERSED AND RENDERED.


                                             ________________________________
                                                       HOLLIS HORTON
                                                           Justice


Submitted on April 24, 2014
Opinion Delivered September 25, 2014

Before McKeithen, C.J., Kreger and Horton, JJ.




      2
       This permissive appeal concerns the employees’ negligence claims against
Becon Construction and Bechtel Equipment, and is not intended to dispose of any
claims they may have against any other defendant they have sued. See Tex. R.
App. P. 28.3.
                                        24
