Reversed and Remanded and Opinion filed February 7, 2012




                                        In The

                     Fourteenth Court of Appeals

                                 NO. 14-10-01242-CV

        JIMMY RAYNOR AND RUBY LEWIS, INDIVIDUALLY AND AS
        REPRESENTATIVES OF THE ESTATE OF JOSEPH LYNN RAYNOR,
                         DECEASED, Appellants

                                          V.

                    MOORES MACHINE SHOP, LLC, Appellee

                      On Appeal from the 239th District Court
                             Brazoria County, Texas
                           Trial Court Cause No. 47198



                                    OPINION

       Joseph Lynn Raynor was electrocuted while welding on the premises of Moores
Machine Shop, LLC. Joseph‘s parents, Jimmy Raynor and Ruby Lewis, individually and
as representatives of Joseph‘s estate (collectively, ―the Raynors‖), sued Moores and
asserted claims for negligence and gross negligence in connection with his death. Moores
moved for summary judgment on alternative grounds, asserting that the claims are barred
by (1) the Workers‘ Compensation Act‘s provisions governing employees; and (2) Texas
Civil Practice and Remedies Code chapter 95‘s provisions governing independent
contractors.
      In two issues, the Raynors contend on appeal that the trial court erred in granting
summary judgment for Moores. We reverse and remand.

I.    Factual and Procedural Background

      Joseph performed welding at Moores Machine Shop in Pearland in July 2007. He
was working in an open metal structure at Moores and was last seen using welding
equipment before he was found dead on his second day on the job.

      The Raynors alleged that Joseph was electrocuted while welding as a result of
―extremely dangerous and unsafe welding cables and related equipment,‖ including
welding cables with rips and tears that were repaired improperly with duct tape, and
equipment that was not properly grounded. They also alleged that Joseph lacked proper
protective equipment.

      Moores filed an amended motion for summary judgment and a supplement adding
a no-evidence ground. Moores argued that (1) the Texas Workers‘ Compensation Act‘s
exclusive remedy provision bars the Raynors‘ claims because Joseph was a Moores
employee; and (2) even if Joseph was an independent contractor, Texas Civil Practice and
Remedies Code section 95.003 forecloses liability because the Raynors cannot establish
actual knowledge of the allegedly dangerous condition that caused Joseph‘s death. The
Raynors argued in response that Joseph was an independent contractor rather than an
employee, and that Moores retained control over Joseph‘s work and had actual
knowledge of the allegedly dangerous condition.

      On November 19, 2010, the trial court granted summary judgment in favor of
Moores without specifying the basis for its ruling. This appeal followed.

II.   Standards of Review

      We review summary judgments de novo. Joe v. Two Thirty Nine Joint Venture,
145 S.W.3d 150, 156 (Tex. 2004). When the trial court grants the judgment without

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specifying the grounds, we will affirm if any of the grounds presented are meritorious.
FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).

       Moores moved for summary judgment on both traditional and no-evidence
grounds. We apply the familiar standard of review appropriate for each type of motion,
taking as true all evidence favorable to the nonmovant, and indulging every reasonable
inference and resolving any doubts in the nonmovant=s favor. See Joe, 145 S.W.3d at 157
(traditional summary judgment); King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751
(Tex. 2003) (no-evidence summary judgment).

       In a traditional summary judgment, the movant has the burden of showing that
there is no genuine issue of material fact and it is entitled to judgment as a matter of law.
Tex. R. Civ. P. 166a(c); Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997).
To be entitled to traditional summary judgment, a defendant must conclusively negate at
least one essential element of each of the plaintiff=s causes of action or conclusively
establish each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941
S.W.2d 910, 911 (Tex. 1997). Once the defendant establishes its right to summary
judgment as a matter of law, the burden shifts to the plaintiff to present evidence raising a
genuine issue of material fact. Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996). Evidence
is conclusive only if reasonable people could not differ in their conclusions. City of Keller
v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005).

       In a no-evidence summary judgment, the movant represents that there is no
evidence of one or more essential elements of the claims for which the non-movant bears
the burden of proof at trial. Tex. R. Civ. P. 166a(i). We sustain a no-evidence summary
judgment 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. King
Ranch, Inc., 118 S.W.3d at 751. ―Less than a scintilla of evidence exists when the

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evidence is ‗so weak as to do no more than create a mere surmise or suspicion‘ of a fact.‖
Id. (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)). On the other
hand, more than a scintilla of evidence exists when reasonable and fair-minded people
could differ in their conclusions based on the evidence. Id.

III.    Did Moores Conclusively Establish that Joseph was Its Employee?

        In their first issue, the Raynors contend that the workers‘ compensation bar does
not apply because Moores did not conclusively establish Joseph was its employee. See
Garza v. Exel Logistics, Inc., 161 S.W.3d 473, 475 (Tex. 2005); see also Tex. Labor
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.‖).

        A.      Employee Versus Independent Contractor

        Under the Worker‘s Compensation Act, an ―employee‖ is defined as ―each person
in the service of another under a contract of hire, whether express or implied, or oral or
written.‖ Tex. Labor Code § 401.012(a). This definition includes ―a person, other than
an independent contractor or the employee of an independent contractor, who is
engaged in construction, remodeling, or repair work for the employer at the premises of
the employer.‖ Id. § 401.012(b)(2) (emphasis added).1

        The test for distinguishing between an employee and an independent contractor
focuses on whether the employer has the right to control the progress, details, and

        1
          Moores also cites another section of the Act that applies to certain building and construction
workers. This section defines ―independent contractor‖ as ―a person who contracts to perform work or
provide a service for the benefit of another,‖ and who (1) is paid by the job and not by the hour or some
other time-measured basis; (2) is free to hire as many helpers as desired and may determine the pay of
each helper; and (3) is free to, while under contract to the hiring contractor, work for other contractors or
is free to send helpers to work for other contractors. See Tex. Lab. Code §§ 406.141(2), 406.142.
Although Moores states that Joseph did not satisfy elements (1) and (2) and therefore was not an
independent contractor, Moores does not argue that this statute supplants the common law right of control
test.
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methods of operations of the work. Thompson v. Travelers Indem. Co. of R.I. 789 S.W.2d
277, 278 (Tex. 1990). Control of the end sought to be accomplished does not suffice; the
employer also must control the means and details of accomplishing the ends. Id.

      The right to control is measured by considering (1) the independent nature of the
worker‘s business; (2) the worker‘s obligation to furnish necessary tools, supplies, and
material to perform the job; (3) the worker‘s right to control the progress of the work,
except as to the final results; (4) the time for which the worker is employed; and (5) the
method of payment, whether by unit of time or by the job. Tex. A&M Univ. v. Bishop,
156 S.W.3d 580, 584–85 (Tex. 2005); Limestone Prods. Distrib., Inc. v. McNamara, 71
S.W.3d 308, 312 (Tex. 2002). Determining employee status is a fact question for the jury
unless ―the material underlying facts are not in dispute and can give rise to only one
reasonable conclusion.‖ See Bishop, 159 S.W.3d at 585. The test for determining
employee status is the same for both workers‘ compensation purposes and common law
claims. Thompson, 789 S.W.2d at 278.

      B.     Genuine Issues of Material Fact Exist Regarding Joseph’s Status

      Moores‘ amended summary judgment motion relied on (1) the affidavit of one of
its owners, Greg Arsement; (2) a copy of the declaration page for Moores‘ workers‘
compensation policy; (3) the affidavit of Kelly Gravois, a supervisor at Moores; and (4)
excerpts from the depositions of Arsement and Gravois.

      Based on Arsement‘s and Gravois‘ affidavits, Moores asserts that Joseph was
working as an employee of Moores; hired on July 12, 2007; paid for the work he
performed that day; and working in the course of his employment for Moores when he
died on July 13, 2007.

      Moores contends that it ―directed the details of how [Joseph] performed his job.‖
Gravois helped Raynor set up the welding machine on the day of the accident, and
instructed Joseph to weld metal grating to a metal framework located on a concrete pad
outside the machine shop building; Gravois described this pad as the floor of a
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compressor shed. Moores owned the welding equipment Joseph used to perform the
work. Gravois last saw Joseph between 9:30 and 10:00 a.m. before leaving the job site.
Gravois returned about 20 minutes later to find Joseph unresponsive and lying on his
back.

        Pointing to the declaration page attached to Arsement‘s affidavit, Moores also
contends that Joseph was covered by its workers‘ compensation insurance. Arsement
averred that Moores paid funeral and burial expenses to the Raynors as workers‘
compensation benefits and was reimbursed in part by the carrier. Based on this evidence,
Moores argues that section 408.001(a) of the Texas Labor Code provides the exclusive
remedy for Joseph‘s work-related death.

        Moores also points to statements in Arsement‘s and Gravois‘ depositions as
evidence of Joseph‘s employee status. Moores contends that (1) Joseph was out of work
and needed a job; (2) he told Gravois that he had attended a trade school for welding; (3)
Gravois introduced Joseph to Arsement, who decided to hire Joseph as a day laborer at
$12.00 an hour; (4) Joseph did not supply the tools, supplies, and materials to perform the
work; and (5) Moores controlled Joseph‘s work. Arsement testified that Joseph could
have been employed by Moores to perform other tasks in addition to welding, and his
method of payment depended on how long he continued to work for Moores. Arsement
said Joseph would have been paid an hourly wage by check had he continued to work for
Moores.

        Gravois testified that Joseph worked about four hours on the first day before
leaving for a job interview. Gravois and Joseph did some welding and other work during
the first day. Gravois watched Joseph to see if he could do what Gravois wanted him to
do, and specifically instructed him on how to perform the work.

        Joseph used Moores‘ welding equipment again on the second day. Gravois told
him that they were going to fit a piece onto the floor and ―only left it up to [Joseph]
where he would start tacking down the metal on top of the beams.‖ The only discretion
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Joseph had on the project was ―what pattern he wanted to use to tack down the floor.‖
Joseph and Gravois worked together for about 45 minutes to an hour on the second day.

       The Raynors contend that this evidence does not satisfy the Supreme Court‘s five-
factor right of control test. The Raynors maintain that the evidence tends to show Joseph
was an independent contractor.

       Turning to the first factor — the independent nature of Joseph‘s business — the
Raynors point out that Moores did not weld as a part of its core business. Moores‘
business focused on machining tools for the oilfield, and these tools were not welded.
Any welding was incidental to Moores‘ machine-shop business, and Moores had only
one welding machine. Further, they assert Joseph was hired because Moores needed
welding help and Joseph was a trained welder. Moores wanted Joseph to work for just a
few days and was aware that Joseph was interviewing with other companies.

       The Raynors also highlight evidence that Joseph received distinctive treatment
from Moores. Moores did not require Joseph to fill out the employment application and
paperwork that its other 50-plus employees had to complete; it did not require Joseph to
take a drug test like its employees; and it did not require Joseph to give the detailed
background information required of its employees. Moores personnel were unable to give
Joseph‘s last name to the sheriff‘s deputy investigating his death; they knew him only as
―Joe.‖ The deputy had to check the phone numbers in Joseph‘s cell phone to learn his
name. And after Joseph‘s death, Moores hired an acknowledged independent contractor
to finish the welding job.

       Moores responds by pointing to section 401.012(b)(2) of the Labor Code, which
defines an ―employee‖ under the Workers‘ Compensation Act to include ―a person . . .
engaged in construction, remodeling, or repair work at the employer‘s premises.‖ See
Tex. Lab. Code § 401.012(b)(2). This section is not dispositive because it applies only if
the person is not an independent contractor. See id. Section 401.012 also provides that an


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employee does not include ―a person whose employment is not in the usual course and
scope of the employer‘s business.‖ See id. § 401.012(c)(2).

      Although Arsement and Gravois testified that Joseph was a Moores employee
whose work was controlled by Moores, there also is evidence that Moores did not treat
Joseph the same way it treated its employees. Arsement acknowledged that it was clear
Joseph would work ―just a couple of days.‖ And although Arsement testified that Joseph
could have performed other jobs if needed, there is evidence he was hired specifically to
perform a welding task that was not part of Moores‘ core business. Additionally, Moores
allowed Joseph to leave on the first day to interview for a job with another company.

      Concerning the second factor — the worker‘s obligation to furnish necessary
tools, supplies, and materials to perform the job — the Raynors do not dispute that
Moores furnished the necessary tools to do his job. The Raynors are suing Moores in part
for furnishing the allegedly defective welding machine.

      As to the third factor, — Joseph‘s right to control the progress of the work except
as to the final details — the Raynors point to Gravois‘ testimony. Gravois let Joseph
determine how he wanted to do the job after confirming that Joseph knew how to weld.
Gravois admitted that he told Joseph ―it was basically up to him where he wanted to
start‖ on the job. Gravois testified that Joseph had ―discretion‖ as to what ―pattern he
wanted to use‖ to weld the metal onto the beams. Gravois left Joseph alone to do the job
and left the job site. Although Gravois told Joseph what welding he wanted done, there is
evidence that Joseph decided where to start and what pattern to use.

      The fourth factor takes into consideration the time for which Joseph was
employed. Moores argues that Joseph was a day laborer who worked only for a short
time, and notes that day laborers can be employees covered by workers‘ compensation. In
response, the Raynors do not dispute that someone working for a short time can be an
employee in some circumstances; instead they argue that Moores did not conclusively
establish that Joseph was its employee in this case. The Raynors point to evidence that
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Joseph had worked at Moores for less than eight hours over two days before he died.
Arsement acknowledged that Moores‘ plan from ―the beginning‖ was for Joseph ―to
work just a couple of days.‖ Arsement knew that Joseph ―was looking for other, more
steady work, and he was going to come and help [Moores] with this welding, and then he
was going to be on his way.‖

       Finally, as to the fifth factor — the method of payment — at least some evidence
raises a fact issue. Moores contends it is undisputed that Moores paid Joseph by the hour,
not by the job. But Arsement testified that Moores paid Joseph ―under the table‖ in cash,
and there are no documents supporting his claim of an hourly wage. Arsement also
testified that Moores did not pay Joseph by check through its payroll system and did not
withhold taxes. The failure to withhold taxes or social security weighs against a finding
of an employment relationship. See Thompson, 789 S.W.2d at 279; see also Limestone
Prods., 71 S.W.3d at 312–13.

       Moores argues that ―sufficient‖ evidence supports its traditional motion for
summary judgment. But sufficient evidence is not the standard; rather, the summary
judgment standard requires Moores to conclusively establish each element of its
affirmative defense. See Sci. Spectrum, 941 S.W.2d at 911. Reviewing the evidence in the
light most favorable to the non-movant, we conclude the Raynors raised genuine issues of
material fact regarding Joseph‘s employee status so as to preclude summary judgment
under the workers‘ compensation bar. We sustain the Raynors‘ first issue.

IV.    Does Chapter 95 Prohibit Recovery?

       Moores argues in the alternative that it still is entitled to summary judgment under
Texas Civil Practice and Remedies Code chapter 95 even if Joseph was an independent
contractor.

       Chapter 95 sets out two mandatory conditions for its application. First, the claim
must be ―against a property owner, contractor, or subcontractor for personal injury, death,

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or property damage to an owner, a contractor, or a subcontractor or an employee of a
contractor or subcontractor.‖ Tex. Civ. Prac. & Rem. Code § 95.002(1). Second, the
claim must ―arise[] from the condition or use of an improvement to real property where
the contractor or subcontractor constructs, repairs, renovates, or modifies the
improvement.‖ Id. § 95.002(2).

       If these conditions are met, then a property owner is not liable for personal injury,
death, or property damage arising from the failure to provide a safe workplace unless:

       (1) the property owner exercises or retains some control over the manner in
       which the work is performed, other than the right to order the work to start
       or stop or to inspect progress or receive reports; and

       (2) the property owner had actual knowledge of the danger or condition
       resulting in the personal injury, death, or property damage and failed to
       adequately warn.

Id. § 95.003.

       The defendant bears the initial burden of establishing that chapter 95 applies.
Rueda v. Paschal, 178 S.W.3d 107, 111 (Tex. App.—Houston [1st Dist.] 2005, no pet.)
Only after the defendant establishes that chapter 95 applies does the burden shift to the
plaintiff to establish both prongs of section 95.003.

       The Raynors contend that chapter 95 does not apply to this case, and even if it
does apply, their claims are not barred because there is evidence that Moores (1)
exercised control over Joseph‘s work; and (2) was aware of the condition that caused
Joseph‘s death but failed to warn him.

       We conclude that the existence of a fact issue regarding Joseph‘s employment
status precludes summary judgment in Moores‘ favor under chapter 95.

       Section 95.002(1) limits this provision‘s application to claims for personal injury,
death or property damage “to an owner, a contractor, or a subcontractor or an
employee of a contractor or subcontractor . . . .” Tex. Civ. Prac. & Rem. Code §
                                             10
95.002(1) (emphasis added). It does not apply to claims for personal injury or death to the
employee of an owner. See id. Therefore, to establish chapter 95‘s applicability by way of
summary judgment, Moores had to establish that Joseph was not its employee.

       Moores pleaded and offered proof seeking to establish that Joseph was Moores‘
employee. We already have held that summary judgment may not be predicated on the
workers‘ compensation bar because the Raynors have raised genuine issues of material
fact regarding whether Joseph was a Moores employee or an independent contractor.
Because there is a fact question about whether Joseph was the employee of an owner,
there is a fact question that precludes a determination via summary judgment that chapter
95 applies.

                                       Conclusion

       We sustain the Raynors‘ issues and reverse and remand the case for further
proceedings consistent with this opinion.




                                            /s/    William J. Boyce
                                                   Justice



Panel consists of Justices Brown, Boyce, and McCally.




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