                                    In The
                               Court of Appeals
                      Seventh District of Texas at Amarillo

                                    No. 07-11-00385-CV


ERMA GONZALES RAMIREZ, INDIVIDUALLY, AND AS REPRESENTATIVE OF THE
ESTATE OF RAYMOND RAMIREZ DECEASED, AND AS NEXT FRIEND OF L.R., J.R.,
     M.R. AND R.R., MINORS, AND JANIE CROSBY, SAMUEL LEE JACKSON,
    INDIVIDUALLY AND AS NEXT FRIEND OF T.C.J., A MINOR CHILD AND
            AS PERSONAL REPRESENTATIVE OF THE ESTATE OF
               REXEE JO JACKSON, DECEASED, APPELLANTS

                                             V.

      ROBERT GARCIA AND CUAHUTEMOC ("TIM") GONZALEZ, APPELLEES

                           On Appeal from the 154th District Court
                                    Lamb County, Texas
                   Trial Court No. 17,796, Honorable Felix Klein, Presiding

                                     August 29, 2013

                  CONCURRING AND DISSENTING OPINION
                 Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


       The court affirms the trial court‘s grant of summary judgment in favor of

Cuahutemoc (―Tim‖) Gonzalez on Samuel Lee Jackson‘s claim based on the allegation

of negligent loading of the tandem truck. I join in the affirmance of summary judgment

on that claim, and in the parts of the court‘s opinion addressing it.
         I also join in the court‘s disposition of the issues brought on appeal by Erma

Ramirez and Janie Crosby, and in the parts of the court‘s opinion addressing those

issues.


         However, I am unable to agree with the court‘s reversal of the trial court‘s grant

of summary judgment on Jackson‘s claim seeking to impose liability on Gonzalez under

the federal motor carrier safety regulations (FMCSR).


         Under the FMCSR an employer is defined as ―Any person engaged in a business

affecting interstate commerce who owns or leases a commercial motor vehicle in

connection with that business, or assigns employees to operate it . . . .‖ 49 C.F.R. §

390.5.       Relying on Martinez v. Hays Construction, Inc., 355 S.W.3d 170, 183

(Tex.App.—Houston [1st Dist.] 2011, no pet.), the court concludes an issue of fact

exists as to whether Gonzalez ―assigned‖ employees to operate the trucks owned by

Robert Garcia‘s 3R/Garcia Trucking so as to qualify as a statutory employer.1 In my

judgment, the summary judgment record contains no evidence Gonzalez was the

statutory employer of Ramirez, the driver of the tandem truck.


         The court points to evidence Gonzalez told the truck drivers where the field being

harvested was located and where they were to haul the silage. Surely virtually every

         1
         While the court focuses on evidence Gonzalez assigned drivers, Jackson‘s brief
urged, ―This Court should join the overwhelming majority of courts to decide this issue
and hold that one who leases a commercial motor vehicle is the statutory employer of
the driver of that vehicle, even if the lessor calls the driver an ‗independent contractor.‘‖
I see in the evidence no indication Gonzalez leased the tandem truck driven by
Ramirez, and the court implicitly rejects Jackson‘s contention there was a lease. See
Stanley v. Fiber Transp., 470 S.E.2d 767, 769-70 (Ga. App. 1996) (noting federal safety
rules do not create a lease where none otherwise exists).


                                              2
person who finds it necessary to hire a truck to haul a cargo also must tell the trucker

where to get the cargo and where to haul it. That Gonzalez did so seems to me no

evidence that he thereby ―assigned‖ the truck driver to operate the truck.2


      The court points also to evidence that Gonzalez‘s employees loaded the trucks

and signaled the drivers when the load was full. Again, these unremarkable facts seem

to me no evidence of assignment of drivers.


      Thirdly, the court finds it significant that Gonzalez testified he retained the

authority to refuse to load a truck he considered unsafe. Keeping in mind that the

assignment leading to statutory employer status is assignment of drivers, not vehicles, 3

I am unable to see any evidence of assignment of drivers in Gonzalez‘s authority to

disqualify a truck belonging to 3R/Garcia Trucking from the job if he considered it

unsafe.


      Taken individually or together, and viewing them in the light most favorable to the

non-movants, these evidentiary facts show nothing more than Gonzalez hired

3R/Garcia Trucking to haul silage from the field to the feedyard and he would not have




      2
         See Schramm v. Foster, 341 F.Supp.2d 536 (D. Md. 2004), in which the court
found a brokering company was not the statutory employer of a truck driver under the
FMCSR. Id. at 548. The actions of the brokering company included directing the driver
to pick up and deliver the load at specific times, and included giving directions from the
warehouse in Missouri to the destination in New Jersey. Id. at 543.
      3
          Employees, under the FMCSR, are individuals. See 49 C.F.R. § 390.5
(defining employee). And, as the court points out, the definition includes an
independent contractor while in the course of operating a commercial motor vehicle. It
follows that a person, like Gonzalez, becomes a statutory employer through assigning
employees only by assigning individuals to operate motor vehicles.

                                            3
loaded the tandem truck if he had seen the condition of its tires.       Nothing in their

transaction is evidence that Gonzalez assigned drivers for Garcia‘s trucks.


         As the court accurately states, the facts in Martinez were similar. See Martinez,

355 S.W.3d at 173-74. The court of appeal‘s conclusion in that case that there was a

fact issue whether Hays Construction assigned drivers to haul the excavated dirt may

be supported by the evidence Hays dealt with individual drivers with their own trucks,

see, e.g., Martinez, 355 S.W.3d at 185–86 (noting court had found evidence sufficient to

raise a fact issue regarding whether Hays hired Delfino Bello, the negligent driver); and

by evidence that Hays Construction made a daily decision regarding the number of

loads requiring hauling, id. at 173. All the trucks in this case were owned by 3R/Garcia

Trucking, and we are not made aware of any summary judgment evidence that

Gonzalez had dealings with the drivers of Garcia‘s trucks individually, other than the

evidence the court notes.


         I would affirm the trial court‘s summary judgment in favor of Gonzalez on

Jackson‘s claims under the FMCSR, and respectfully dissent from the court‘s failure to

do so.




                                                 James T. Campbell
                                                    Justice




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