                                                                          ACCEPTED
                                                                      03-15-00529-CV
                                                                              8127888
                                                           THIRD COURT OF APPEALS
                                                                      AUSTIN, TEXAS
                                                                 12/8/2015 8:29:43 AM
                                                                    JEFFREY D. KYLE
                                                                               CLERK

            Case No. 03-15-00529-CV

             COURT OF APPEALS                         FILED IN
                                               3rd COURT OF APPEALS
          THIRD DISTRICT OF TEXAS                  AUSTIN, TEXAS
             AT AUSTIN, TEXAS                  12/8/2015 8:29:43 AM
                                                 JEFFREY D. KYLE
                                                       Clerk

           MATTHEW ERIC KERSHNER,

                                   Appellant

                         v.

    SAMSUNG AUSTIN SEMICONDUCTOR, LLC,

                                   Appellee.


  On Appeal from Cause No. D-1-GN-12-003687
53rd Judicial District Court of Travis County, Texas
         Hon. Gisela D. Triana, Presiding


              APPELLEE'S BRIEF



                          BRET A. SANDERS
                          State Bar No. 24033152
                          JEFFREY D. BOYD
                          State Bar No. 24069404
                          FEE, SMITH, SHARP & VITULLO, L.L.P.
                          1801 South MoPac Expressway
                          Suite 320
                          Austin, TX 78746
                          (512) 479-8400
                          (512) 479-8402 (Fax)
                          bsanders@feesmith.com
                          j boyd @feesmith. com
                          COUNSEL FOR APPELLEE
                    IDENTITY OF PARTIES AND COUNSEL


Parties                           Counsel
Matthew Eric Kershner             Matthew J. Kita
Appellant                         P.O. Box 5119
                                  Dallas, Texas 75208
                                  Appellate and Trial Counsel
                                  Robert W. Lee
                                  Lee Gober & Reyna
                                  11940 J ollyville Road, Suite 220-S
                                  Austin, Texas 78759
                                  Trial Counsel
Samsung Austin Semiconductor, LLC Bret A. Sanders
Appellee                          Jeffrey D. Boyd
                                  Fee, Smith, Sharp & Vitullo, LLP
                                  1801 South MoPac Expressway, Suite 320
                                  Austin, Texas 78746
                                  Appellate and Trial Counsel




APPELLEE SAMSUNG AUSTIN SEMICONDUCTOR'S BRIEF                      Page ii
                                                  TABLE OF CONTENTS

Identity of Parties and Counsel .................................. ......... ... ....... ..... ... .................... ii

Index of Authorities .................... .. ................................................................... .... .. .... v

Statement of the Case ..................................................................... ......................... vii

Statement Regarding Oral Argument ..................................................................... viii

Issues Presented ... .. ................. ...... .............. .... .... .. ....... .. ......... ..... .... .. ..... ................. ix

Statement of Facts .... ......... ...................................................................... .............. .... . 1

Summary of the Argument .. .. .. ................ ... ........... .................................... ........ ......... 4

Argument ......................................................................... ........................................... 5

I.        Appellant Concedes that Appellee Has Shown the Applicability of Texas
          Labor Code Section 406.123 as a Matter of Law, Confirming that Appellee
          is Entitled to Summary Judgment.. .................................................. ........ ........ 5

II.       Section 406.122 Does Not Apply to This Case and Therefore Cannot Defeat
          Summary Judgment .......................................... .... ............................................ 6

          A.         Section 406.122's Requirements are Not Met ...................................... 6

          B.         Spur Agreed to Section 406.123 Being the Applicable Authority ........ 7

          C.         TIC Energy is Not Binding Authority and Conflicts with Precedent ... 8

          D.        TIC Energy is Not Applicable Under Its Own Terms ............. ............... 8

          E.        This Court Has Previously Considered and Rejected Appellant's
                    Argument ........................................ ... ......... .... ....... .. ........ .................... 10

          F.        Appellant Continues to Fail to Respond to Appellee's Arguments .... 13

III.      Appellant's Argument Puts OCIP Policies in Texas at Risk. .. ...................... 13


APPELLEE SAMSUNG AUSTIN SEMICONDUCTOR'S BRIEF                                                                                 Page iii
Conclusion and Prayer .......................... ... ... ............ ..... .. ................... ......... ........... ... 17

Certificate of Compliance ......................................................... ............................... 18

Certificate of Service ........................... ..................................................................... 18

Appendix .............. .. .............. ....................................... ... ..... ..................................... 19




APPELLEE SAMSUNG AUSTIN SEMICONDUCTOR'S BRIEF                                                                            Pageiv
                                               INDEX OF AUTHORITIES

Cases

Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433 (Tex. 2009) ................... 5, 15

HCBeck, Ltd. v. Rice, 284 S.W.3d 349 (Tex. 2009) ............ .. ..................... ...... 14-16

Walker v. Harris, 924 S.W.2d 375 (Tex. 1996) ....................................................... 10

Wingfoot Enterprises v. Alvarado, Ill S.W.3d 134 (Tex. 2003) ..................... 14-15

Bedrock General Contractors, Inc. v. Texas Workers' Compensation Insurance
Fund, No. 03-00-00426-CV, 2001 WL 253594 (Tex. App.-Austin Mar. 8, 2001,
pet. denied) (not designated for publication) .................................................... 11-13

Brooks v. Goodyear Tire & Rubber Co., No. 14-12-01048-CV, 2013 WL 3477288
(Tex. App.-Houston [14th Dist.] Jul. 9, 2013, no pet.) ................ ................... 15-16

Cook v. White Construction Co., No. 03-10-00114-CV, 2011 WL 3371542 (Tex.
App.-Austin Aug. 4, 2011, no pet.) ....................................................................... l5

Funes v. Eldridge Electric Co., 270 S.W.3d 666 (Tex. App.-San Antonio 2008,
no pet.) ................... .. ................................................................................................. l5

Garza v. Zachry Construction Corp., 373 S.W.3d 715 (Tex. App.-San Antonio
2012, pet. denied) .............................................................................................. 15-16

Hunt Construction Group, Inc. v. Konecny, 290 S.W.2d 238 (Tex. App.-Houston
[1st Dist.] 2008, pet. denied) ................................................... .... ................... ..... ..... 15

Lazo v. Exxon Mobil Corp., No. 14-06-00644-CV, 2009 WL 1311801 (Tex.
App.-Houston [14th Dist.] May 7, 2009, no pet.) (mem. op.) ............................... 15

Salinas v. Pankratz, No. 13-10-00241-CV, 2012 WL 112812 (Tex. App.-Corpus
Christi Jan. 12, 2012, no pet.) .......................... ............ ...................... ...................... 15

TIC Energy and Chemical, Inc. v. Martin, No. 13-14-00278-CV, 2015 WL 127777
(Tex. App.-Corpus Christi Jan. 8, 2015, pet. filed) (mem. op.) ................. 8-10, 13



APPELLEE SAMSUNG AUSTIN SEMICONDUCTOR'S BRIEF                                                                             Pagev
Statutes and Rules

Texas Labor Code§ 406.122 ........................................................................ 4-14, 17

Texas Labor Code § 406.123 .................................................................... 4-9, 13, 17

Texas Labor Code§ 408.001 ...... ..... ............................ ..................... ............. ...... 5, 14

Texas Rule of Appellate Procedure 38.1 ................................................... .... ............ 5

Texas Rule of Appellate Procedure 47. 7 ....... .... ...................................................... 11




APPELLEE SAMSUNG AUSTIN SEMICONDUCTOR'S BRIEF                                                             Page vi
                             STATEMENT OF THE CASE

Nature of the Case:            Appellant sued Appellee for monetary damages in
                               premises liability, claiming personal injuries from
                               an alleged on-the-job injury. C.R. 3-12. Appellee
                               denied Appellant's allegations. C.R. 13-17.

Course of Proceedings:         Appellee moved for summary judgment based on
                               the workers compensation bar. E.g., C.R. 18-32.

Trial Court's Disposition:     The trial court granted Appellee's motion for
                               summary judgment. C.R. 221.




APPELLEE SAMSUNG AUSTIN SEMICONDUCTOR'S BRIEF                             Page vii
                   STATEMENT REGARDING ORAL ARGUMENT

      This case presents a clear application of the workers compensation bar in a

fact scenario where Texas courts have applied it many times before. Appellant's

incorrect argument for the application of a statute whose requirements are not

triggered has previously been considered and rejected by this Court. Appellee

therefore respectfully submits that oral argument is not needed in this matter,

though Appellee will be pleased to present argument if the Court believes it will be

of assistance.




APPELLEE SAMSUNG AUSTIN SEMICONDUCTOR'S BRIEF                               Page viii
                             ISSUES PRESENTED

1.   Can Appellee successfully argue for reversal of summary judgment despite
     it being undisputed that the requirements for summary judgment under the
     applicable statute have been met as a matter of law?

2.   Can Appellee successfully argue for reversal of summary judgment by
     asking the Court to apply a statute and case law whose requirements are not
     met as a matter of law?




APPELLEE SAMSUNG AUSTIN SEMICONDUCTOR'S BRIEF                            Page ix
                              STATEMENT OF FACTS

      Appellant was the direct employee of Spur Electric, Inc. ("Spur") while

working on the Saturn Project for Appellee Samsung Austin Semiconductor, LLC

("SAS"). See, e.g., C.R. at 37-38, 45-46. Appellant claims he injured himself in a

fall while performing work on that project. C.R. 4-5.

      SAS implemented an Owner Controlled Insurance Program ("OCIP") to

provide workers' compensation coverage for contractors of every tier providing

labor to the Saturn Project. C.R. 63, 85-87, 89-90, 154-55. Participation in the

OCIP was mandatory, and all contractors and subcontractors were required to

follow enrollment procedures. C.R. 63, 85-87, 89-90. Subcontractors contracting

their own subcontractors were required to include the OCIP instructions with bid

documentation and require that any of their own subcontractors participate in the

OCIP. C.R. 70, 85-87, 89-90. Any independent workers compensation policy held

by the subcontractor was explicitly stated to "only be Excess . . . of the OCIP

coverages." C.R. 68, 85-87, 89-90. SAS was responsible for the payment of all

OCIP premiums. C.R. 70, 85-87, 89-90. Subcontractors enrolled in the OCIP were

to be provided a Certificate of Insurance. C.R. 63, 85-87, 89-90.

      Spur subcontracted with Durr Systems, Inc. ("Durr"), a contractor on the

Saturn Project, for electrical install. See C.R. 89-90, 154-55. In its proposal to

Durr, Spur acknowledged it would be participating in the OCIP and stated it had



APPELLEE SAMSUNG AUSTIN SEMICONDUCTOR'S BRIEF                               Page 1
included all requirements for participation in the OCIP. C.R. 73-74, 85-87, 89-90.

Durr informed SAS of Spur's subcontract on a form entitled "Samsung Austin

Semiconductor Saturn Project Notice of Subcontract Award and Request for

Insurance". C.R. 76 (emphasis added), 85-87; see C.R. 89-90. The form was

copied to the attention of the "OCIP Administrator". C.R. 76, 85-87, 89-90.

      Further, Spur completed a "Samsung Austin Semiconductor Saturn Project

Enrollment Worksheet", expressly stating that it "hereby acknowledges and agrees

that worker's compensation insurance coverage is being provided to [Spur] and its

employees pursuant to an Owner/Contractor Controlled Insurance Program

('CCIP' I 'OCIP')". C.R. 78, 85-87, 89-90. Spur expressly agreed that the

document "serves to memorialize the parties' agreement for purposes of Texas

Labor Code sec. 406.123." C.R. 78, 85-87. The form was signed by a

representative of Spur on October 15, 2010. C.R. 78, 85-87; see C.R. 89-90. This

form was also sent to the OCIP Administrator. C.R. 78, 85-87, 89-90.

      Spur was issued a Certificate of Insurance showing it had enrolled in the

OCIP. C.R. 80, 83, 85-87, 89-90, 92-126; see C.R. 154-55; C.R. 66 ("Each

Enrolled Contractor will receive a separate Workers' Compensation policy."). The

policy limits shown on the Certificate are identical to those workers compensation

limits scheduled to be provided under the OCIP. Compare C.R. 80, 83 with C.R.

65; see C.R. 85-87, 89-90, 92-126.



APPELLEE SAMSUNG AUSTIN SEMICONDUCTOR'S BRIEF                                 Page2
      Appellant alleges he was injured on the job on December 7, 2010. See C.R.

4-5. At that date, Spur was already enrolled in the OCIP, including being issued a

policy number of 10 WN QV6244 under the OCIP. C.R. 80, 83, 85-87, 92-126;

see C.R. 154-55. The coverage period includes the alleged date of injury. See C.R.

80, 83, 85-87, 92-126. Therefore, any claim for on-the-job injury was covered by

SAS's OCIP policy worker's compensation coverage.

      In summary, Appellant's direct employer Spur was required to and did

enroll in the OCIP provided by SAS. The same OCIP provided coverage for

Appellant's alleged on-the-job injury that is the basis of Appellant's suit. SAS

moved for summary judgment on the basis that Appellant's suit against SAS was

therefore barred by longstanding Texas law on workers compensation coverage.

E.g., C.R. 18, 24-28, 178, 183-93. The trial court granted SAS's motion for

summary judgment. C.R. 221.




APPELLEE SAMSUNG AUSTIN SEMICONDUCTOR'S BRIEF                               Page3
                         SUMMARY OF THE ARGUMENT

       The trial court properly granted summary judgment because SAS met all

requirements for application of the workers compensation bar under Texas Labor

Code section 406.123. Appellant argues for the application of section 406.122 to

defeat summary judgment, citing to a case from another court of appeals. However,

an absolute requirement of section 406.122 is not met, and Appellant's argument is

therefore incorrect, according to Appellant's own favored statute and opinion as

well as a prior opinion of this Court. The Court should affirm the decision of the

trial court.




APPELLEE SAMSUNG AUSTIN SEMICONDUCTOR'S BRIEF                               Page 4
                                          ARGUMENT


I.     Appellant Concedes that Appellee Has Shown the Applicability of Texas
       Labor Code Section 406.123 as a Matter of Law, Confirming that
       Appellee is Entitled to Summary Judgment.

       Appellant's Brief argues only the applicability of Section 406.122 of the

Texas Labor Code. Appellant does not dispute-and therefore concedes-that SAS

has satisfied all requirements of Section 406.123 of the Texas Labor Code. 1 E.g.,

Tex. R. App. P. 38.1(h), (i) (noting the brief must contain the arguments being

made).

       Appellant also does not dispute the established law that SAS' s satisfaction of

section 406.123 makes it a deemed employer immune from suit by deemed

employees. E.g., Tex. Lab. Code §§ 408.001 and 406.123; Entergy Gulf States,

Inc. v. Summers, 282 S.W.3d 433, 435-36, 438 (Tex. 2009).

       Texas courts have repeatedly and consistently granted summary judgment

under section 406.123 in this specific situation. The trial court merely agreed with

and applied the existing legal authorities in granting summary judgment for SAS.

Appellant's sole argument is that the Court should instead look to a separate

statute.

1 Due to this concession, SAS will not add to the length of this Brief by detailing all the ways in
which it has complied with section 406.123 as a matter of law. SAS did make this showing in its
summary judgment briefing, which the trial court granted. E.g., C.R. 21-23, 24-28, 188, and
189-192. If Appellant claims that SAS must make this showing despite Appellant's failure to
dispute the same as an appellate issue, SAS would request the opportunity to file supplemental
briefing.



APPELLEE SAMSUNG AUSTIN SEMICONDUCTOR'S BRIEF                                              Page 5
II.   Section 406.122 Does Not Apply to This Case and Therefore Cannot
      Defeat Summary Judgment.

      Appellant argues that SAS must both prove the applicability of section

406.123 and disprove the applicability of section 406.122 as a matter of law.

Appellant does not address in any way the bevy of authority cited by SAS showing

summary judgment is proper. In support of its claim, Appellant instead cites to one

unpublished opinion currently pending before the Texas Supreme Court and

having no binding authority on this Court. However, there are multiple reasons that

Appellant's argument cannot prevail.

      The language of section 406.122 makes clear it is not applicable. Appellant's

direct employer agreed that section 406.123 would apply. There is no evidence of a

written agreement required to make section 406.122 applicable. This Court has

previously dealt with the absence of the required written agreement and agreed

with SAS that Appellant's favored statute is not applicable. Finally, these issues

were raised before the trial court. Appellant had actual awareness of the reasons its

argument is incorrect, and it has effectively conceded those reasons by failing to

address them on appeal.

      A.     Section 406.122's Requirements are Not Met.

      Texas Labor Code section 406.122 states that a subcontractor and its

employees are not deemed employees of general contractor only if the

subcontractor both:


APPELLEE SAMSUNG AUSTIN SEMICONDUCTOR'S BRIEF                                 Page 6
       ( 1)   is operating as an independent contractor; and

       (2)    has entered into a written agreement with the general contractor
              that evidences a relationship in which the subcontractor
              assumes the responsibilities of an employer for the performance
              of work.

Tex. Lab. Code § 406.122(b ). Appellant argues that its self-serving declaration

fulfills the evidentiary requirement for operating as an independent contractor.

Appellant's Brief at 7-8. However, Appellant does not present evidence of, let

alone even attempt to argue the existence of, the required written agreement. In the

absence of the required written agreement, it is clear that section 406.122 has no

applicability to this case.

      B.      Spur Agreed to Section 406.123 Being the Applicable Authority.

      In contrast to the complete absence of the written agreement required to

trigger section 406.122, Appellant's direct employer Spur explicitly agreed in

writing to be bound by section 406.123. Spur enrolled in the OCIP provided by

SAS, and its Enrollment Worksheet expressly states that it memorializes the

parties' agreement for workers compensation coverage for the purposes of Texas

Labor Code section 406.123. C.R. 78; see also C.R. 21-22, 27, and 188. In short, it

was agreed that section 406.123 would govern, that SAS would be Appellant's

deemed employer for purposes of the workers compensation bar, and that SAS

would have immunity against Appellant through that statute.




APPELLEE SAMSUNG AUSTIN SEMICONDUCTOR'S BRIEF                                    Page 7
      C.     TIC Energy is Not Binding Authority and Conflicts with Precedent.

      Appellant relies on TIC Energy and Chemical, Inc. v. Martin, an opinion out

ofthe Thirteenth Court of Appeals. No. 13-14-00278-CV, 2015 WL 127777 (Tex.

App.-Corpus Christi Jan. 8, 2015, pet. filed) (mem. op.). It therefore can serve

only as persuasive authority, though it is noted below why the opinion has no

applicability to this case in even that capacity. Further, the status of TIC Energy

cannot be determined. A petition for review on the opinion is currently pending

before the Supreme Court. As the TIC Energy court acknowledges, it is the first

court to reach the opinion it did. See id. at *4. SAS presented the trial court with a

wealth of authority, all agreeing that the workers compensation bar applies when a

general contractor satisfies Texas Labor Code section 406.123. C.R. 24-27.

Appellant disputes none of this authority on appeal, and instead relies on a non-

binding outlier opinion that may soon by overturned.

      D.     TIC Energy is Not Applicable Under Its Own Terms.

      As noted above, Appellant's sole argument for error is that SAS must prove

as a matter of law both that section 406.123 applies and section 406.122 does not

apply, and that SAS has failed to do the latter. Appellant incorrectly interprets TIC

Energy to make this argument. The court's opinion in that matter is much

narrower. SAS pointed out Appellant's incorrectly broad interpretation before the

trial court. C.R. 185-186. Appellant tellingly has not responded in any way on



APPELLEE SAMSUNG AUSTIN SEMICONDUCTOR'S BRIEF                                  Page 8
appeal, indicating it cannot dispute the proper interpretation of the opinion.

      The court in TIC Energy actually says that a general contractor must

disprove section 406.122 only in a specific factual scenario that causes section

406.122 to "irreconcilably conflict" with section 406.123. TIC Energy, 2015 WL

127777 at *4. The court makes its narrow opinion explicitly clear, stating it is:

      [A]ddressing a scenario, such as the one presented here, where a
      subcontractor enters into both: (1) an agreement with a general
      contractor under which the general contractor agrees to provide
      workers' compensation coverage to the subcontractor's employees,
      see TEX. LAB. CODE ANN. § 406.123(a); and (2) a written
      agreement with the general contractor under which the subcontractor
      assumes the responsibilities of an employer for the performance of
      work. See id. § 406.122(a). In such a scenario, section 406.123(e)
      unambiguously states that the general contractor is deemed the
      "employer" of the subcontractor for TWCA purposes, but section
      406.122(b) unambiguously states that the subcontractor is not deemed
      an "employee" of the general contractor for TWCA purposes. See id.
      §§ 406.122(b), 406.123(e).

      We therefore conclude that, as applied to these facts, the two statutes
      irreconcilably conflict.

!d. at *4 (italicized emphasis in original; underlined emphasis added). In other

words, TIC Energy can on its face only possibly apply when both sections 406.122

and 406.123 are triggered.

      Under its own case law, Appellant can therefore only properly argue the

application of section 406.122 when it is also triggered. As noted above-and as

echoed in the TIC Energy opinion, id. at *2 (quoting Tex. Lab. Code§ 406.122)-

section 406.122 requires a written agreement that does not exist in this matter.


APPELLEE SAMSUNG AUSTIN SEMICONDUCTOR'S BRIEF                                    Page 9
       Again this issue was brought to the trial court's attention by SAS. C.R. 185-

186. Despite knowing of the issue, again Appellant has failed to address it on

appeal, indicating it has no response. Appellant has not pointed to the required

written agreement and has not argued that such an agreement exists? Appellant

instead cites only to and attaches only Appellant's self-serving and conclusory

declaration. C.R. 167-168. Even if this was proper evidence, the declaration does

not mention any agreement with SAS, 3 let alone a written agreement that includes

the terms required for section 406.122 and TIC Energy to be applicable.

       In summary, TIC Energy follows the plain language of section 406.122 in

making clear that neither its opinion nor that statute is applicable in the absence of

the required written agreement. As there is no evidence of such an agreement here,

these authorities have no applicability to this matter.

       E.     This Court Has Previously Considered and Rejected Appellant's
              Argument.

       This Court has considered this very issue and agreed with SAS that section

2 Appellant incorrectly claimed before the trial court that SAS was arguing for reversing the
burden on summary judgment. SAS is instead merely noting that there is no evidence of the
written agreement required to trigger Appellant's favored statute, section 406.122. Appellant's
argument that this reverses the burden is effectively an argument that a summary judgment
movant must not only present evidence for summary judgment but must also prove the
nonexistence of all evidence against summary judgment. There is of course no requirement for
SAS to affirmatively disprove the existence of all evidence that could in any way deny it
summary judgment. SAS met its burden as the movant for summary judgment, Appellant failed
to respond with evidence of a fact issue, and summary judgment was properly granted. E.g.,
Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996).

3 The only agreement of any kind mentioned in the declaration is with Durr. See C.R. 167.



APPELLEE SAMSUNG AUSTIN SEMICONDUCTOR'S BRIEF                                          Page 10
406.122 is not applicable when there 1s no evidence of the written agreement

required by the statute.

       In Bedrock General Contractors, Inc. v. Texas Workers' Compensation

Insurance Fund, appellant Bedrock General argued that its workers compensation

premiums should not be calculated to include the employees of Bedrock Materials

because Bedrock Materials was an independent contractor under section 406.122.

No. 03-00-00426-CV, 2001 WL 253594, at *1-*2 (Tex. App.-Austin Mar. 8,

2001, pet. denied) (not designated for publication). 4 The Court noted that section

406.122 presumes that a subcontractor like Spur is an employee for workers

compensation purposes, and therefore Appellant must overcome this presumption.

!d. at *2. To overcome this presumption on summary judgment, Appellant must

raise a fact question meeting two conditions: "(1) [Spur] operate[ d] as an

independent contractor and (2) [Spur] enter[ed] into a written agreement with

[SAS] 'evidenc[ing] a relationship in which [Spur] assumes the responsibilities of

an employer for the performance of work."' !d. (quoting Tex. Lab. Code §

406.122(b)) (emphasis in original). The Court concludes that section 406.122 does

not apply because there was no evidence of a "written agreement between

[Bedrock General] and Bedrock Materials that evidenced an independent

4 Due to being not designated for publication, this case does not have precedential value. Tex. R.
App. P. 47.7(b). However, it has strong value as persuasive authority, as it demonstrates that the
Court has considered and previously rejected Appellant's argument on one ofthe same grounds
that it should be rejected here.



APPELLEE SAMSUNG AUSTIN SEMICONDUCTOR'S BRIEF                                            Page 11
relationship." Id. at *8.

       In short, this Court previously made clear that a written agreement showing

an independent relationship is an absolute requirement for section 406.122 to

apply. This is the same argument SAS makes above, the same argument SAS made

to the trial court, and the same argument Appellant continues to fail to address on

appeal. Because there is no evidence of a qualifying written agreement-and

Appellant does not even argue such a written agreement exists-it is clear under

the Court's prior opinion that section 406.122 does not apply.

       Appellant claims its evidence shows Spur was operating as an independent

contractor. However, the Court also dealt with that issue in Bedrock General and

determined that such a claim is entirely irrelevant standing alone. That is only one

of multiple necessary conditions, and the manner in which Spur operates is not

sufficient to satisfy section 406.122 in the absence of a written agreement. I d. at *8

n.1 0 ("[Bedrock General] also claims that a fact issue exists with respect to

whether Bedrock Materials operated as an independent contractor. 5 Because we

conclude that a written agreement did not exist, we need not reach this

argument.").

       Bedrock General makes clear that the Court has considered and agrees with

5 Note that this is the exact argument Appellant makes. E.g., Appellant's Brief at 5 ("[T]he
evidence before the trial court demonstrated that Spur was operating as an independent
contractor."). The Court property determined the argument was wrong when Bedrock General
made it, and it remains wrong now that Appellant is making it.



APPELLEE SAMSUNG AUSTIN SEMICONDUCTOR'S BRIEF                                       Page 12
SAS's position that section 406.122 and TIC Energy have no application to this

suit because there is no evidence of a written agreement satisfying section 406.122.

       F.      Appellant Continues to Fail to Respond to Appellee's Arguments.

       Appellant is well aware of the issues with its argument for the applicability

of section 406.122 and TIC Energy. In briefing to the trial court, SAS pointed out

that Spur agreed to be bound by section 406.123, that TIC Energy is an outlier

opinion with no binding authority, that section 406.122 and TIC Energy explicitly

state they are not applicable without the written agreement that does not exist here,

and that this Court has considered and rejected Appellant's argument. E.g., C.R.

21-22, 27, 78, 183-188. By failing to respond to any of these issues, Appellant

concedes it has no response. 6

III.   Appellant's Argument Puts OCIP Policies in Texas at Risk.

       Appellant argues that a deemed employer providing workers compensation

coverage to deemed employees must also prove a negative: that section 406.122

does not apply. Appellant further argues that it is insufficient for SAS to

demonstrate the complete absence of evidence of the qualifying written agreement

6 Bizarrely, Appellant instead incorrectly claims that "Samsung's motion for summary judgment
never addressed section 406.122." Appellant's Brief at 7. Appellant presumably is aware this
claim is incorrect, as SAS already addressed it before the trial court. C.R. 188; see also C.R. 27
& n.4. SAS did not address section 406.122 in more depth in its initial summary judgment
motion because it was clearly inapplicable. Once Appellant incorrectly argued for its application,
SAS briefed the issue in detail. C.R. 183-189. As noted above, it is Appellant that has failed to
argue against any of the reasons given for why section 406.122 and TIC Energy do not apply
here.



APPELLEE SAMSUNG AUSTIN SEMICONDUCTOR'S BRIEF                                            Page 13
explicitly required by section 406.122 for that statute to be applicable. Appellant's

argument puts a tremendous burden on general contractors like SAS who wish to

ensure those working their projects have workers compensation coverage. In

addition to the reasons given above for why Appellant's argument is incorrect, it is

worth weighing the burden Appellant wishes to create against the public policy

that strongly favors finding coverage.

      It is well-established law that the remedy for an employee alleging an on-

the-job injury is limited to the recovery of workers' compensation benefits. Tex.

Lab. Code § 408 .001(a). Texas courts have repeatedly noted the sound public

policy behind the Legislature's decision to make workers' compensation benefit

the employee's exclusive remedy. Under the Texas Workers' Compensation Act,

employees are provided with certainty that their medical bills and lost wages will

be covered if they are injured, without the time, expense, and uncertainty of

litigation and without having to prove liability. HCBeck, Ltd. v. Rice, 284 S.W.3d

349, 350 (Tex. 2009); id. at 358 (quoting Wingfoot Enters. v. Alvarado, 111

S.W.3d 134, 142 (Tex. 2003)). In short, the Act guarantees that employees injured

on the job are promptly covered for medical expenses regardless of fault. In return,

the subscribing employer receives immunity from the tort claims of that employee.

ld. at 350; id. at 358 (quoting Wingfoot, 111 S.W.3d at 142).

      Unsurprisingly, the Legislature and Texas courts have consistently favored



APPELLEE SAMSUNG AUSTIN SEMICONDUCTOR'S BRIEF                                Page 14
finding workers compensation coverage-and the immunity that comes with it-in

scenarios like the one presented here. Doing so is in keeping with the Texas

Supreme Court's recognition of the Legislature's '"decided bias' for coverage" in

determining whether the exclusive-remedy defense applies. Id. at 358 (quoting

Wingfoot Enters., 111 S.W.3d at 142) (emphasis in original). The Court has further

recognized that multi-tiered contractor relationships are prevalent throughout

Texas, and the bias for coverage requires favoring broad, blanket coverage and

extending immunity throughout multiple tiers when workers compensation

coverage is provided to employees. !d. at 358-59.

       Courts throughout Texas have responded by routinely finding broad, multi-

tiered immunity resulting from OCIP policies like the one in this case. 7 OCIP


7 Specific to this case, the Texas Supreme Court has explicitly held that premises owners (like
SAS) have immunity from claims for personal injuries made by employees of subcontractors
(like Appellant). Summers, 282 S.W.3d at 435-36, 438; see also Garza v. Zachry Constr. Corp.,
373 S.W.3d 715, 721 (Tex. App.-San Antonio 2012, pet. denied); Salinas v. Pankratz, No. 13-
10-00241-CV, 2012 WL 112812, at *3 (Tex. App.-Corpus Christi Jan. 12, 2012, no pet.); Lazo
v. Exxon Mobil Corp., No.14-06-00644-CV, 2009 WL 1311801, at *2-3 (Tex. App.-Houston
[14th Dist.] May 7, 2009, no pet.) (mem. op.).
       As additional examples of the broad findings of coverage with OCIPs: The general
contractor has immunity from an employee of a subcontractor due to an OCIP purchased by the
premises owner. HCBeck, 284 S.W.3d at 360; Cook v. White Constr. Co., No. 03-10-00114-CV,
2011 WL 3371542, at *5 (Tex. App.-Austin Aug. 4, 2011, no pet.); Hunt Constr. Grp., Inc. v.
Konecny, 290 S.W.3d 238, 246 (Tex. App.-Houston [1st Dist.] 2008, pet. denied). A
subcontractor has immunity from an employee of the premises owner due to an OCIP purchased
by the premises owner. Garza, 373 S.W.3d at 721. A subcontractor has immunity from an
employee of another subcontractor due to an OCIP purchased by the premises owner. Hunt
Constr., 290 S.W.3d at 247; Funes v. Eldridge Elec. Co., 270 S.W.3d 666, 672 (Tex. App.-San
Antonio 2008, no pet.). A premises owner has immunity from an employee of a subcontractor,
even in the absence of an OCIP, because the premises owner agreed to reimburse the
subcontractor for premiums the subcontractor paid to provide workers compensation coverage to
its employees. Brooks v. Goodyear Tire & Rubber Co., No. 14-12-01048-CV, 2013 WL


APPELLEE SAMSUNG AUSTIN SEMICONDUCTOR'S BRIEF                                         Page 15
policies "allow the highest-tiered entity to ensure quality and uninterrupted

coverage to the lowest-tiered employees", thereby ensuring that all employees on a

project receive the benefits contemplated by the Workers' Compensation Act. !d.

at 359. The Texas Supreme Court has expressed concern that failing to find

immunity in the case of an OCIP "would likely do away with'' that insurance

option in Texas. !d. at 360 n.7; see Garza v. Zachry Constr. Corp., 373 S.W.3d

715, 723 (Tex. App.-San Antonio 2012, pet. denied).

       It is undisputed that Appellant received workers compensation benefits and

that those have been covered by SAS's OCIP policy. The sound public policy

behind the workers compensation bar has therefore been satisfied in this case.

Affirming summary judgment is also in keeping with the Legislature's decided

bias for finding coverage and applying the workers compensation bar. Affirming

summary judgment also avoids conflicting with the Supreme Court's concern that

failing to find immunity in cases where the purposes of OCIP policy have clearly

been satisfied will lead to the elimination of this insurance option in Texas.

Appellant's self-serving and conclusory declaration and citations to inapplicable

statutory and case law does not change the result: the bevy of evidence and

authority presented makes clear that SAS was and remains entitled to summary

judgment.

3477288, at *3-4 (Tex. App.-Houston [14th Dist.] Jul. 9, 2013, no pet.).



APPELLEE SAMSUNG AUSTIN SEMICONDUCTOR'S BRIEF                              Page 16
                             CONCLUSION AND PRAYER

      Appellee Samsung Austin Semiconductor, LLC is indisputably entitled to

summary judgment under Texas Labor Code section 406.123 and case law

interpreting that statute. Appellee incorrectly argues for the application of section

406.122, as one of its absolute requirements is clearly not met. Appellee therefore

asks that the Court affirm the summary judgment entered by the trial court, and for

all other relief to which Appellee has shown itself justly entitled.

                                     Respectfully submitted,

                                     FEE, SMITH, SHARP & VITULLO, L.L.P.



                                       /s/ Jeffrey D. Boyd
                                     BRET A. SANDERS
                                     State Bar No. 24033152
                                     JEFFREY D. BOYD
                                     State Bar No. 24069404
                                     1801 South MoPac Expressway, Suite 320
                                     Austin, Texas 78746
                                     (512) 479-8400
                                     (512) 479-8402 (Fax)
                                     bsanders@feesmith. com
                                     jboyd@feesmith. com

                                     ATTORNEYS FOR APPELLEE




APPELLEE SAMSUNG AUSTIN SEMICONDUCTOR'S BRIEF                                Page 17
                          CERTIFICATE OF COMPLIANCE

       This brief complies with Texas Rule of Appellate Procedure 9.4(i) because it
contains 4,056 words, excluding the parts of the brief exempted by Tex. R. App. P.
9.4(i)(l ). In making this certificate of compliance, I am relying on the word count
provided by the software used to prepare this document.



                                     Is/ Jeffrey D. Boyd
                                    BRET A. SANDERS
                                    JEFFREY D. BOYD



                         CERTIFICATE OF SERVICE

       THIS WILL CERTIFY that a true and correct copy of the foregoing instrument
has been mailed, telecopied, emailed, or hand-delivered to all attorneys of record in
this cause of action on the 8th day ofDecember, 2015.

Via Certified Mail/RRR                     Via Certified Mail/RRR
Matthew J. Kita                            Kenneth "Tray" Gober, III
P.O. Box 5119                              Robert W. Lee
Dallas, TX 75208                           Lee, Gober & Reyna
(214) 347-7221 (Fax)                       11940 Jollyville Road, Suite 220-S
matt@mattk:ita.com                         Austin, TX 78759
Appellate and Trial Counsel for            Trial Counsel for Appellant
Appellant


                                     Is/ Jeffrev D. Boyd
                                    BRET A. SANDERS
                                    JEFFREY D. BOYD




APPELLEE SAMSUNG AUSTIN SEMICONDUCTOR'S BRIEF                                Page 18
                                APPENDIX

Bedrock General Contractors, Inc. v. Texas Workers' Compensation Insurance
Fund, No. 03-00-00426-CV, 2001 WL 253594 (Tex. App.-Austin Mar. 8, 2001,
pet. denied) (not designated for publication)

TIC Energy and Chemical, Inc. v. Martin, No. 13-14-00278-CV, 2015 WL 127777
(Tex. App.-Corpus Christi Jan. 8, 2015, pet. filed) (mem. op.)




APPELLEE SAMSUNG AUSTIN SEMICONDUCTOR'S BRIEF                       Page 19
Bedrock General Contractors, Inc. v. Texas Workers' ... , Not Reported in .. .
2001 WL 253594

                                                                      summary judgment that the Fund obtained
                                                                      against Bedrock General.
               2001 WL 253594
 Only the Westlaw citation is currently available.                    We have jurisdiction over this interlocutory
                                                                      order, which the district court severed for
        NOTICE: NOT DESIGNATED FOR                                    purposes of appeal. See M.yffbe      ~·. NO.I:i.   SCifi
        PUBLICATION. UNDER TX R RAP                                    ' .W.2tl590. 59 ! (Tex. l 993l: Po11 Am. l'dmfetun
      RULE 47-7, UNPUBLISHED OPINIONS                                 Cmp, y, Te.-r:@. Ew;~ Cil~!/ <X Oil CQ., _l~2 I ex.
      HAVE NO PRECEDENTIAL VALUE BUT                                  ill. 324 S.W.2d 200, 200-0'1 <Tex .1959).
      MAY BE CITED WITH THE NOTATION
        "(not designated for publication)."                    Background
                                                               Jack Adcox and William Speer first mel in the late
          Court of Appeals of Texas, Austin.                   1980s during a business deal. At the time, Speer owned
                                                               Wesco Construction, Inc., a business created to build
                   BEDROCK GENERAL
                                                               subdivisions and perform construction work. In April
          CONTRACTORS, INC., Appellant,
                                                               1990, Adcox and Speer formed Bedrock Materials,
                              v.                               Inc. ("Bedrock Materials") for the purpose of selling
       TEXAS WORKERS' COMPENSATION                             sand and calcium sulfate. Adcox primarily handled
            INSURANCE FUND, Appellee.                          the sales and administrative duties in the office while
                                                               Speer concentrated on overseeing work at job sites in
      No. 03-00-00426-CV.                  March 8, 2001.
                                                               the field.
From the District Court of Travis County, 26lst
                                                               Adcox and Speer agreed orally that while Speer would
Judicial District, No. 97-08588; Mar Pte!l.r! Wii)j aJn ~,
                                                               provide the initial capital to start Bedrock Materials,
Judge Presiding.
                                                               both men would share ownership of the corporation.
Before     ABOU SSIE, Chief J. ,            YEAKEL       and   Speer initially received all of the Bedrock Materials
PATTERS N, J1.                                                 stock due to Adcox's financial situation following a
                                                               bankruptcy. Adcox and Speer agreed, however, that
Opinion                                                        Adcox would receive one-half ofthe shares of Bedrock
                                                               Materials stock once he developed the business into a
PATTERSON.
                                                               profitable one.
 *1    Appellee Texas Workers' Compensation
Insurance Fund ("the Fund") sued appellant Bedrock             The following year Adcox and Speer formed
General Contractors, Inc. ("Bedrock General")                  Equipment Express, Inc., which was in the business
to recover premiums due under three workers'                   of hauling heavy equipment for hire. In addition
compensation insurance policies issued by the Fund             to serving as vice president of Bedrock Materials
                                                               and Wesco Construction, Adcox also acted as vice
to Bedrock General in 1994, 1995, and 1996. 1 The
                                                               president for Equipment Express.
district court granted partial summary judgment in
favor of the Fund and found Bedrock General liable
                                                               Sometime during 1991, Adcox concluded that he
for additional premiums claimed by the Fund under
                                                               had upheld his part of the agreement with Speer
its insurance policies . ·2 Appellant now challenges the       and that he should receive one-half of the shares of
district court's judgment. Because the Fund established        Bedrock Materials stock. Adcox spoke with Speer
its entitlement to summary judgment and appellant              on several occasions about dividing the stock of
failed to raise a genuine issue of material fact, we           Bedrock Materials equally. Speer continued to agree
affirm the district court's judgment.                          that the men were co-owners of Bedrock Materials, but
                                                               Adcox never received any shares of Bedrock Materials
         The Fund also sued Bedrock Materials, Inc.,           stock. According to Adcox, he did not receive
         Wesco     Construction,   Inc.,   and   Equipment     compensation as agreed from Bedrock Materials
         Express, Inc. This appeal arises from a partial       because profits of Bedrock Materials were funneled



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Bedrock General Contractors, Inc. v. Texas Workers' ... , Not Reported in ...
2001 WL 253594

to Wesco Construction as monies owed. Although             mend!. The Fund moved for partial summary judgment
Speer continued to assure Adcox that he was an equal       solely on its breach of contract claim. SeeTcx.R .Cjv.P.
owner of Bedrock Materials, the business relationship      166a a}. ln its motion, the Fund argued that because
between the two men had begun to sour.                     no written agreement exists between appellant and
                                                           Bedrock Materials evidencing their independence,
As the discord over the financial situation and            appellant's premiums for its workers' compensation
ownership of Bedrock Materials continued, in 1994,         insurance policies should have been calculated
Adcox decided to create his own general contracting        according to a basis that included Bedrock Materials'
business, appellant Bedrock General, l to excavate,        employees. The Fund further asserted that, because
sell, and transport aggregate materials, including sand    premiums for the policies were calculated on an
and calcium sulfate, for various commercial entities.      inaccurate basis, appellant had not paid the Fund
The company also perfom1ed asphalt work. From              the full amount of premiums due in exchange for
1994 to 1997, appellant subcontracted transportation       workers' compensation coverage. The Fund contended
work to Bedrock Materials and Equipment Express,           that when appellant refused to pay premiums owed,
excavation work to Bedrock Materials, and field work       it breached the terms of its contracts, namely, the
to Wesco Construction.                                     insurance policies, with the Fund.

                                                           The district court granted the Fund's motion. Appellant
        Due to the similarity of the names involved,
                                                           moved to sever the partial summary judgment order
        we will further reference Bedrock General as
        "appellant" to avoid confusion.
                                                           from the remainder of the case for purposes of appeal
                                                           and the district court granted this motion. Appellant
 *2 Appellant shared office space with Bedrock
                                                           now appeals the summary judgment order in favor of
Materials and Adcox continued to work for both             the Fund.
companies until Bedrock Materials was sold in
1997. In lieu of paying rent for the office space,
appellant paid a portion of Bedrock Materials'             The Controversy
payroll. When appellant was formed, employees              Section 406 . 122 of the Texas Labor Code ("the
of Bedrock Materials were offered the option of            Code") addresses status as an employee in the
working for Adcox's new business. On occasion,             workers' compensation system. Tex. labor Code Ann.
appellant's employees would assist those of Bedrock        § 406. 122 (West 1996). According to this provision,
Materials. Within the shared office space, the separate    a person perfonning work for a general contractor
letterheads and phone lines for each company were          is presumed to be an employee of the general
used interchangeably.                                      contractor.Id. Likewise, a subcontractor's employees
                                                           are viewed as employees of the general contractor
Appellant contracted with the Fund to provide workers'     unless the subcontractor meets two conditions: (1) it
compensation coverage for its employees for the            operates as an independent contractor and (2) it enters
period from January 1994 to January 1997. After            into a written agreement with the general contractor
an audit, the Fund concluded that appellant and            "evidenc[ing] a relationship in which the subcontractor
Bedrock Materials were operating as a single business      assumes the responsibilities of an employer for
enterprise and that appellant's control of the employees   the performance of work."ld . § 406.122Cb).. A
of Bedrock Materials made the Fund liable for              subcontractor is defined as "a person who contracts
those employees while they were being controlled           with a general contractor to perform all or part of
by appellant. The Fund demanded that appellant             the work or services that the general contractor has
pay premiums to cover the risk associated with the         undertaken to perform."ld. § 406.121(5).
additional employees. When appellant refused the
demand, the Fund filed suit to recover the premiums        *3 Appellant is a general contractor who contracted
owed.                                                      work to Bedrock Materials. SJ;clion 406. 122{b)
                                                           therefore presumes that while Bedrock Materials
In its suit, the Fund asserted claims for breach of        employees perfonned work for appellant, they should
contract, negligent misrepresentation, and quantum         have been viewed as appellant's employees. Unless


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Bedrock General Contractors, Inc. v. Texas Workers' ... , Not Reported in ...
2001 WL 253594

the requirements of ~~~:;tiou 406.122(])) are satisfied,   a written agreement existed between appellant and
appellant's workers' compensation premium basis must       Bedrock Materials. The first TWCC-85 form is dated
include Bedrock Materials employees who performed          February 14, 1994; the second TWCC-85 form is
work for appellant.                                        dated February 2, 1996 and is identified as deposition
                                                           exhibit 54. 2 These forms were attached to the
The Texas Workers' Compensation Commission has             affidavit of appellant's risk manager, Donald D.
created a fom1, which will constitute a written            Cook. In his affidavit, Cook acknowledges that his
agreement as required by section 406 .122(b)(2) of the     responsibilities as risk manager for Bedrock General
Code once executed properly by a general contractor        included preparing and filing appropriate forms with
and a subcontractor and filed 4 with the agency.           the Fund. The forms purport to bear the signatures
This fonn is entitled "Agreement Between General           of Adcox as signatory for appellant and Speer as
Contractor and Subcontractor to Establish Independent      signatory for Bedrock Materials, thereby constituting
Relationship" and is also known as a TWCC-85               a written agreement evidencing their independent
form. Use of this form is optional; parties are free       relationship. The narrow question before us is whether
to draft their own written agreements to evidence an       appellant presented the district court with sufficient,
independent relationship.                                  competent, summary judgment proof, either to call
                                                           a material fact into question, thereby precluding the
       The form instructs the hiring contractor to file    Fund's entitlement to summary judgment.
       the original TWCC-85 form with the Texas
       Workers' Compensation Commission and its                    These documents are not clearly identified in the
       workers compensation insurance carrier within               record. Although two separate TWCC-85 forms
       ten days of the date of execution.                          are identified in deposition testimony, labeled
Specifically, the TWCC-85 form states that (i)                     as deposition exhibits 23 and 54, during one
                                                                   of the depositions the Fund's counsel noted that
section 406. 12 1(2) or th e Labor        ode, which
                                                                   both exhibits were actually the same document.
defines "independent contractor," has been met; (ii)
                                                                   The exhibits at issue are not further described
the subcontractor is operating as an independent
                                                                   in the record. While appellant offers two
contractor; (iii) the subcontractor assumes the
                                                                   separate TWCC-85 forms as summary judgment
responsibilities of an employer for the perfom1ance                evidence, only one, marked as deposition exhibit
of work; and (iv) "the Subcontractor and the                       54, is addressed by testimony in the record.
Subcontractor's employees are not employees of the
General Contractor for purposes of the Act."The            Standard of Review
form also advises, "This agreement shall take effect        *4 A traditional motion for summary judgment is
no sooner than the date it is signed."Thus, by its         properly granted when the movant establishes that
terms, the form does not take effect until it is signed    there are no genuine issues of material fact to be
by representatives of the general contractor and the       decided and that it is entitled to judgment as a matter
subcontractor.

In its motion for summary judgment, the Fund argued        A genuine issue of material fact is one that impacts
that the evidence showed appellant and Bedrock             the outcome of the case. Zfm.ata v. Children's Clinic,
Materials were not working as independent contractors      997 S.W.2d 745. 747 (Tex.App.-Corpus Christi 1999,
and had not entered into a written agreement               pet. denied); ls.h ell_v~ Ryan,2._8.LS.W.2d_)_]_~,__}38
evidencing an independent relationship. The Fund           .lTH.8.Qik HouslQI!...[J4th Di. L] 19 8. 11Q.P..nj; Moore
concluded that appellant should be liable for premiums
calculated to include Bedrock Materials's payroll for      Antonio t29.8., get_q~pi_~d). We review the propriety of
employees while they worked under contracts with           a ruling on a motion for summary judgment de novo.
appellant.                                                 See Natividad v. Alex:>is. inc., 875 S.W.2d 695, 699
                                                           ITex. l994).
In its response, appellant offered copies of two
TWCC-85 forms as summary judgment proof that



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Bedrock General Contractors, Inc. v. Texas Workers' ... , Not Reported in ...
2001 WL 253594

Once the movant establishes a right to summary
judgment, the non-movant must expressly present any
                                                                                           DISCUSSION
reasons avoiding the movant's entillement and must
support the response with proof to establish a fact
                                                                      In its second issue on appeal, B. appellant contends that
issue. McC9.!11J.?lll'. Sm!thffidc. !ndep, S_c;h._O.i!i.L. _8~_8
                                                                      the district court erred by granting partial summary
S. W.2d 337, 34 J ITcx .1993); C ill' 11 f Hou:vwn v.
                                                                      judgment because the evidence below raises issues of
 .'/ear Creek BasirJ ;hllh .. 589 S. W.2d 67 1 678-79
                                                                      material fact. Specifically, appellant complains that
fTcx. l979) . fi Evidence is viewed in the            light most      fact issues exist as to whether a written agreement
favorable to the non-movant with all                  reasonable      existed evidencing Bedrock Materials' independence
inferences indulged. @ 9.11, 690 S.W.2d               al 54 8-49.     from appellant. The district court expressly found that
Similarly, any doubts are resolved in favor           of the non-     appellant subcontracted work to Bedrock Materials
movant. !d.                                                           and carried its employees on its payroll without
                                                                      the required written agreement. The issue, then,
         The burden of proof, however, does not shift to              is whether appellant has raised a fact issue that
         the non-movant.CQSSQ v. Bm!J.d..J_7.9.S.W2r:J_~~.L           Adcox for appellant and Speer for Bedrock Materials
         556 ITcx. J98\)); Cirv o(! ! o U.I'fiJ /1 v. Clear Creek     either signed such a written agreement or authorized
                               61l.,_£?.L ITcx 1279)
         !lJ1.1'.hu 1.JJJlJ...._589 S_,_W,2d                          someone to sign on their behalf.
         ("Summary judgments must stand on their own
         merits").
                                                                             Appellant contends in its first issue that the
When the district court expressly states the grounds                         Fund is not entitled to summary judgment
on which summary judgment was granted, we must                               because it failed to present any evidence of
consider the grounds on which the district court                             damages, an essential element of a breach of
ruled.G7lr;in'?CJ.!LLif..? ln!i.. _Cdd. y.J:.C!.l?.!i, 9.27_ S,W.2d          contract claim. Sn vder v. Eanes !ndep. Sell.
                                                                             Dist., SJiLS~W.,2~.L 69L9.2~- (I~l>,APP~:All~!in
6Lt 62~ (I~z<,.J996). 7 In its summary judgment
                                                                             129__3, ' ·!I de :tlliU. We find that the Fund did
order, the district court concluded that appellant
                                                                             include evidence to show appellant's premiums
subcontracted work to Bedrock Materials but that
                                                                             if calculated to include Bedrock Materials's
no written agreement evidencing an independent
                                                                             employees who worked for appellant under
relationship existed between the general contractor and                      contracts. Specifically, the Fund included in
subcontractor. The district court order then entered                         its summary judgment proof the affidavit of
judgment in favor of the Fund for liability on its                           Ann Pollack, Manager of the Fund's Premium
breach of contract claim "calculated on the additional                       Investigation Unit, with attached exhibits,
payroll of employees of Bedrock Materials, Inc. who                          including the demand letter sent to appellant, that
perfonned subcontracted work for Defendant Bedrock                           identified the amount of unpaid premiums owed
General Contractors, Inc. during the time period                             to the Fund. While partial summary judgment
January 21, 1994 to January 21, 1997."                                       may be granted strictly on the issue of liability
                                                                             even if a genuine issue exists as to the amount of
                                                                             damages, I~&'R. iv. P. 166!l(tl), here, the parties
         But a reviewing court is not limited by a recitation                have stipulated that if the summary judgment
         of grounds in a judgment. Cim:!mw li U(e Ins. Co.                   were upheld on appeal, the additional unpaid
         v. CqtesL9_ll__S,W...2d_92_3,_625 _(T~J9_9_Q). In the               premiums would be $165,000. We overrule
         interest of justice, our review may consider other                  appellant's first issue.
         possible grounds for a judgment if the movant has
         presented these issues to the district court and has         We must initially determine whether the Fund has
         preserved them. !d. In this case, a review beyond            met its summary judgment burden. When moving for
         the district court's judgment is not warranted               summary judgment, a plaintiff must present summary
         because the parties have confined their briefing             judgment proof that supports each element of its
         to the ground set forth in the court's judgment.             claim to demonstrate an entitlement to judgment. See
                                                                      Acker v. Texas Water Comm'n. 790             S.W~2d __2.2.9,
                                                                      JjtJ -Q2_(Tex , L99Q). Therefore, to obtain summary
                                                                      judgment on the issue of liability with respect to its



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Bedrock General Contractors, Inc. v. Texas Workers' ... , Not Reported in ...
2001 WL 253594

breach of contract claim, the Fund must prove the                          TWCC-85 form, marked as deposition exhibit 54, were
following essential elements in a suit for breach of                       not genuine and that Speer had not authorized anyone
contract: (I) that a valid contract existed, (2) the                       to sign the form on his behalf. Because the TWCC-85
plaintiff performed or tendered performance, (3) that                      form states that the agreement takes effect "no sooner
the defendant breached the contract, and (4) that the                      than the date it is signed," the Fund maintains that the
plaintiff was damaged as a result of the breach. Snvder                    form requires valid signatures of a general contractor
1. /S(llle.l" lndep , Sch. Dj.1·t., 860 S.W .2d 692, 695                   and a subcontractor to be effective. In this case, the
{I~Xd-\_J2 p .-Au~1inJ.22l,_ wri I d~ni~d_l.
                                      Here, the parties                    valid signatures needed to include those of Adcox and
do not dispute the existence of the contracts at issue,                    Speer or of any person authorized to sign the fom1.
the workers' compensation insurance policies, or that
the Fund provided coverage under the contracts.                            During his deposition, Adcox specifically denied
                                                                           signing the TWCC-85 form at issue. Likewise, in his
 *5 At the outset, we must determine what summary                          deposition, Speer testified unequivocally that he did
judgment evidence was properly before the district                         not sign the TWCC-85 fonn at issue. In addition, Speer
court. Because neither party obtained an express or                        stated that he had not authorized anyone to sign this
implied ruling on its objections to the evidence and the                   form on his behalf.
district court did not refuse to rule, we will consider
all of the evidence that was before the district court.                    Challenging Speer's deposition testimony, appellant
SeeTcx. R.A _ .P. 33 . .l a 2 . The summary judgment                       cites us to portions of Speer's deposition testimony
evidence consisted of various responses to discovery,                      that contain inconsistencies regarding whether he
deposition testimony, and affidavits of employees of                       authorized other individuals to sign his name. This
the parties as well as the affidavit of appellant's                        testimony, however, is limited to Speer recalling one
risk manager, Donald D. Cook. The exhibits to the                          instance when he gave an individual power of attorney
depositions were not included in the record.                               to purchase a dump truck on his behalf and another
                                                                           when he authorized an employee to sign company
To demonstrate that summary judgment should be                             payroll checks while he was on vacation. Speer also
granted, a movant must offer admissible evidence.                          admitted to authorizing Adcox to sign payroll checks
JJ.wJ.gd__ fl.loo_tl_S..?.l.:Y§, _Y~ _LQIJ,gQ_r/q, 93 8 S. W.2d 29,_;3_Q   on several occasions. This evidence, however, does
(Tex.l997). Any fact that the movant seeks to establish                    not controvert Speer's testimony that he did not sign
conclusively must be subjected to verification or                          the TWCC-85 form at issue and that he did not
denial. !J.quer __Y~ .ktsm __2_4('i___S~.W.2d j)2,_ 55('i                  authorize anyone else to sign this form on his behalf.
O"ex.App.- oqJu~ Chd;;ti__l2_21. __n_g__ _w:tit). A matter                 We conclude that this evidence is sufficient to support
may be conclusively established by uncontroverted                          summary judgment because it is "clear, positive and
testimony from an interested witness "if the evidence                      direct, otherwise credible and free from contradictions
is clear, positive and direct, otherwise credible and                      and inconsistencies, and could have been readily
free from contradictions and inconsistencies, and could                    controverted."Tcx.R. iv.P. 166a(c).
have been readily controverted."Tex. .Ci .P. 6a c .
                                                                            *6 Contending that it has raised a genuine issue of
The Fund presented summary judgment proof                                  material fact, appellant refers us to an exhibit attached
establishing that (i) appellant executed three contracts                   to its response to the Fund's motion for summary
for workers' compensation insurance with the Fund                          judgment, the affidavit of Donald D. Cook. Summary
in 1994, 1995, and 1996; (ii) the Fund perfonned                           judgment proof must be admissible under the rules
its duties under the contract; and (iii) appellant was                     of evidence. Longqria, 938 S. W.2d al 30. Affidavits
a general contractor that subcontracted its work to,                       in support or in opposition to a motion for summary
among others, Bedrock Materials. In support of its                         judgment must be made on personal knowledge, must
position that no written agreement existed between                         set forth such facts that would be admissible in
appellant and Bedrock Materials, the Fund offered                          evidence, and must show affirmatively that the affiant
summary judgment evidence, the deposition testimony                        is competent to testify to the matters stated therein.
of Adcox and Speer, to show that the signatures on the                     Tex.R . iv.P. 166aCQ; see also Rvland Groua inc. y,



            Ne;,,t © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 5
Bedrock General Contractors, Inc. v. Texas Workers' ... , Not Reported in ...
2001 WL 253594

1Lqqq, 924 S.W)d 120, 122 CI~.lcl999). A conclusory
witness affidavit will not support a summary judgment.       Appellant also asserts thal the 1994 TWCC-85 form
EaJi£ULBttJli[f. 99H S.W .2d 882. 890 (I_cx_._l999).         and exhibit 54 attached to Cook's affidavit are evidence
The prohibition of conclusory evidence does not mean         alone that a written agreement existed between
that logical conclusions based on stated underlying          appellant and Bedrock Materials. The record, however,
                                                             is devoid of any specific reference to the 1994
                                                             TWCC-85 fonn much less evidence that, as required
But conclusory evidence is improper if it fails to           by its terms, the 1994 TWCC-85 form was signed by
explain the basis of the witness's statements to link the    the representatives of appellant and Bedrock Materials
conclusions to facts. ld.                                    or by someone authorized by these representatives.
                                                             We believe the only possible written agreement in
Attached to Cook's affidavit are six pages of                the record about which a fact issue could be raised is
records consisting of copies of transmittal letters,         exhibit 54.
two TWCC-83 fonns, and two TWCC-85 fonns. A
transmittal letter dated February 14, 1996, is identified     *7 Appellant further argues that an issue of material
as deposition exhibit 54 and appears to include              fact exists regarding whether Speer authorized
TWCC-83 and -85 forms dated February 2, 1996.2 The           someone to sign exhibit 54 on his behalf. Appellant
forms purport to bear the signature of Adcox on behalf       first points to Adcox's deposition testimony, asserting
of appellant and Speer on behalf of Bedrock Materials.       that Speer authorized him to sign checks, insurance
                                                             forms, and other documents on behalf of both
                                                             appellant and Bedrock Materials. Adcox testified that
        At one point in Speer's deposition, the parties
                                                             while he did not sign exhibit 54, he authorized
        indicate that Exhibit 54 is a duplicate or the
                                                             other employees to sign various documents, including
        "same as" Exhibit 23. Although the record is
        not clear, we will assume that Exhibit 54 is an      TWCC documents, on his behalf. In contrast, Speer
        exhibit containing three pages and consisting of     testified that he did not sign exhibit 54 or authorize
        a transmittal letter, a TWCC-83 form, and a          anyone to sign the form on his behalf. Appellant
        TWCC-85 form.                                        contends that because Adcox testified that he and
                                                             Speer both authorized others to sign their names on
Although Cook testified extensively by deposition,
                                                             unspecified documents that a fact issue exists as to
in his affidavit he acknowledged only that he had
                                                             whether they signed the TWCC-85 form at issue. We
been responsible for preparing and filing "appropriate
                                                             disagree.
forms" with the Fund. In addition to exhibit 54, an
unmarked TWCC-85 form dated February 14, 1994 is
                                                             Adcox did not testify that he or Speer authorized
attached to Cook's affidavit. The affidavit makes no
                                                             anyone to sign exhibit 54. Adcox does not assert that he
mention of the signatures in question, averring only
                                                             had personal knowledge that Speer authorized anyone
that the documents were "prepared by or under his
                                                             to sign this exhibit nor does he claim to recognize
direction."
                                                             the handwriting on the form. Rather, Adcox asserts in
                                                             a conclusory manner that Speer authorized others to
 This testimony, then, does not establish who signed
                                                             sign his name. Conclusory statements devoid of the
 the TWCC-85 forms, nor does it establish that
                                                             requisite facts are insufficient to raise fact issues on
 any unknown person who might have signed the
                                                             summary judgment. Rvland Crou~224 S.W.2d
 forms was authorized by Adcox, Speer, or any other
 authorized person. We reject any legal or factual
                                                             !!L12.2. Because Adcox's testimony does not address
                                                             the specific document at issue here, we must conclude
 conclusions that either of these attached TWCC-85
                                                             that his testimony lacks a sufficient factual basis to
 forms constitutes valid written agreements because
                                                             raise a genuine issue of material fact.
there is no supporting basis in fact. Earle, 998 S. W .2d
ill_..a2_Q. Also, no facts are presented in this affidavit
                                                             Appellant also offers the testimony of Kathy Holmes,
to permit us to reasonably infer the validity of either
                                                             one of appellant's employees who had previously
TWCC-85 form or to raise a doubt about the asserted
                                                             worked for Bedrock Materials. During her deposition,
invalidity of exhibit 54.



        · Ne;.:t © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                    6
Bedrock General Contractors, Inc. v. Texas Workers' ... , Not Reported in ...
2001 WL 253594

Holmes was shown a TWCC-85 form designated                  documents for which Speer had previously authorized
as exhibit 23, which is not identified or otherwise         the use of his signature. Moreover, Cook's deposition
included in the record, as well as exhibit 54. Holmes       testimony, even if taken as true, is contradictory.
was unable to identify the signature on the exhibit as      SeeT<e;>(,.R.C:iY.P~ Lt?fl<!(y). We conclude that appellant
that of Speer. She also did not testify that she had        has not raised a fact issue concerning the existence
personal knowledge of Speer authorizing someone to          of a written agreement between appellant and
sign the form.                                              Bedrock Materials that evidenced an independent
                                                            relationship.lQ Accordingly, we overrule issue two.
Appellant's contention that a fact question exists
turns on the deposition testimony of Donald Cook.           lQ      Appellant also claims that a fact issue exists with
Consistent with Adcox's testimony, Cook stated in
                                                                    respect to whether Bedrock Materials operated as
his deposition that on occasion Adcox and Speer
                                                                    an independent contractor. Because we conclude
had authorized him to sign their signatures. But                    that a written agreement did not exist, we need
Cook could not identify the signatures on deposition                not reach this argument. SeeiexJ&lloJ_God.l:!
exhibits 23 and 54. Cook further testified that                     Ann._§__4Q6.J22_(_b) (West 1996) (requiring proof
the signatures on exhibit 23 "could be General                      that a subcontractor operate as an independent
Contractors, an individual representing them and                    contractor and that the subcontractor has entered
an individual representing Bedrock Materials."When                  into a written agreement with the general
asked whether the signature on exhibit 23 was his,                  contractor).
Cook testified that he was unable to identify it. He                  Citing to JJ!.!jjjmns v. Bro wn & Root, Int.:..

also testified that it was "possible" that he had signed              2-±:Z__S•.W .2c,i __()D__(I~;J>~APP - -Te.l\ n rls.<!mLL22:Z,
                                                                      no writ), appellant further asserts, that the
exhibit 23 and later that it was "possible" that Adcox
                                                                      phrase "written agreement" referenced in
and Speer had signed the document on behalf of the
                                                                      section 406.122 of the Code should have
two companies. At best, Cook's testimony is internally
                                                                      the same meaning as that attributed to the
inconsistent. Similarly, when presented with exhibit
                                                                      phrase in section 406.123. Because appellant
54, Cook could not identify the signatures as his                     did not present this argument to the district
own. Cook also did not testify that he had personal                   court, we decline to address it on appeal.
knowledge of Speer authorizing someone to sign the                    SeeT ex .R.Civ.P. 166n(c).
form.
                                                            In its third issue, appellant argues that the Fund must
                                                            accept an "authorized" signature as well as a signature
 *8 When, as here, the moving party presents
                                                            of a company's owner or officer on a TWCC-85 form.
competent summary judgment evidence establishing
                                                            The Fund has not contended that it would refuse to
its entitlement to summary judgment, and the non-
                                                            accept the signature of an authorized individual. We
movant's sole response is to assert its hypothesis of the
                                                            overrule issue three.
facts or other possible theories of the facts without an
underlying factual basis from which one could draw
                                                            By its fourth issue, appellant claims that it cannot be
logical conclusions, we must conclude that appellant
                                                            held liable for past premiums "absent an injury and a
has failed to raise a fact issue. The evidence does not
                                                            valid independent contractor agreement" and that the
show that any known person signed the documents at
                                                            Code does not permit the Fund to impose a penalty in
issue or that either Adcox or Speer authorized anyone
                                                            the form of retroactive premiums. Because appellant
to sign these particular documents.
                                                            did not present these arguments to the district court,
                                                            we decline to address them on appeal. SeeTex .R. iv.P.
No one whom Speer may have authorized to
                                                            166a(c). Issue four is overruled.
sign on his behalf is claiming to have signed
a TWCC-85 form with that authority. At most,
                                                            Having examined the summary judgment record
Adcox testified that Speer likely authorized someone
                                                            and finding no controverting proof of the summary
to sign similar forms but this testimony fails to
                                                            judgment evidence provided by the Fund, we conclude
address the documents attached to the Cook affidavit.
                                                            that the Fund has established its entitlement to partial
This testimony also does not address a universe of
                                                            summary judgment and that appellant has failed to



       /Next © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                      7
Bedrock General Contractors, Inc. v. Texas Workers' ... , Not Reported in .. .
2001 WL 253594

                                                          Because we conclude that the Fund demonstrated that
raise any genuine issue of material fact. Therefore, we
                                                          it was entitled to judgment as a matter of law and
further conclude that the trial court properly granted
partial summary judgment on the breach of contract        that appellant failed to establish that a genuine issue
                                                          of material fact existed, we affirm the district court's
claim in favor of the Fund.
                                                          judgment.



                  CONCLUSION                              All Citations

                                                          Not Reported in S.W.3d, 2001 WL 253594


End of Document                                             © 2015 Thomson Reuters. No claim to original U.S. Government Works.




   stlavvN":<t © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           8
Bedrock General Contractors, Inc. v. Texas Workers' Compens ... , Not Reported in S.W.3d



    History (1)


    Direct History (1)
      1. Bedrock General Contractors. Inc. v. Texas Workers' Comr:Jensation Ins. Fund ,_,,
      2001 WL 253594 , Tex.App.-Austin , Mar. 08, 2001 , review denied ( May 31, 2001 )




   'i.•. No?.xt © 2015 Thomson Reuters. No claim to original U.S. Government Works.          9
TIC Energy and Chemical, Inc. v. Martin, Not Reported in S.W.3d (2015)
2015 WL 127777

                                                             Martin, an employee of Union Carbide Corporation
                                                             ("UCC"), suffered injuries while attempting to service
                2015 WL 127777
                                                             heavy equipment at UCC's Seadrift, Texas, facility
 Only the Westlaw citation is currently available.
                                                             on September 5, 2012. The injuries necessitated the
       SEE TX R RAP RULE 47.2 FOR                            amputation of Martin's leg. Martin made a claim
 DESIGNATION AND SIGNING OF OPINIONS.                        for and received benefits under UCC's worker's
                                                             compensation insurance policy. He subsequently sued
            MEMORANDUM OPINION                               TIC, a subcontractor at the Seadrift facility, for
             Court of Appeals of Texas,                      negligence. TIC filed a motion for traditional summary
             Corpus Christi-Edinburg.                        judgment alleging that Martin's suit is barred under the
                                                             exclusive remedy provision of the TWCA. Seei ~­
    TIC Energy and Chemical, Inc., Appellant,
                                                             LAB . ODE ANN . § 40!!.00 I (West, Westlaw through
                                v.                           2013 3d C.S.). After a hearing, the trial court denied
         Kevin Bradford Martin, Appellee.                    the motion. The trial court subsequently granted TIC
                                                             permission to appeal the ruling, seei EX ._Cl\1, PRAC,
         NUMBER 13-14-00278-CV
                                                             & I{ · M. CODE ANN. , ~ 51.0 1 .D (West, Westlaw
        Delivered and filed January o8, 2015
                                                             through 2013 3d C.S.), and we accepted the appeal.
                                                             SeeTEX. R. APP. P. 28.3.
On appeal from the 135th District Court of
Calhoun County, Texas.

Attorneys and Law Firms
                                                                                 II. DISCUSSION

Ji!m~s.I.. Sllnosky,   Ri!ndy   G~Pomtto,   for TIC Energy   TIC argues by one issue that the trial court erred in
and Chemical, Inc.
                                                             denying its motion for summary judgment "because,
                                                             pursuant to the Texas Workers' Compensation Act, an
James W. Cole, for Kevin Bradford Martin.
                                                             employee of a general contractor is barred as a matter
Before Chief Justice Valdez, and Justices Rodri guez         oflaw from asserting common law claims for a work-
and Garza                                                    related injury against a subcontractor subscribing
                                                             to the general contractor's worker's compensation
                                                             policy."
            MEMORANDUM OPINION

Memorandum Opinion by Justice Garza                          A. Standard of Review
                                                             In advancing a traditional motion for summary
 *1 In this permissive interlocutory appeal, seeJ_EX~        judgment, the movant has the burden of showing there
R. APP. P. 28.3 , appellant TIC Energy and Chemical,         is no genuine issue of material fact and it is entitled to
Inc. ("TIC") argues that the trial court erred in            judgment as a matter of law. I EX . R..S:l\!.J>,) 66a(g);
denying its motion for summary judgment in a                 Joe v. Two Thirtv Nine .Joint VentiJre. 145 S. W.Jd l5Q,
lawsuit brought by appellee, Kevin Bradford Martin.          157_LThXc.2QQ_4). We review the trial court's summary
The issue presented is whether the Texas Workers'            judgment ruling de novo. ,Log,_J45._ S.W. ~!:L..i!LU..Q;
Compensation Act ("TWCA") bars suit against                  Nalfe Pfostics Familv LP. v. Pol'/er. Roger ·, Dc!hJJJJcm
an independent subcontractor whose employees                 & Gordon, P.C., 406 S.W.3d 186. 199 (Tex. App.-
were covered by the general contractor's workers'            Com as _Cbrisli 20J.J..,J]e . den i ~. We take as true all
compensation insurance policy. We affirm.                    evidence favorable to the non-movant, and we indulge
                                                             every reasonable inference and resolve any doubts
                                                             in the non-movant's favor. J'.g_{gJJg_(}_QperatiTJg ___Q,__ y._
                                                             Dorse!L !64 S.W.3d 656. 66 l_(I<:<l<-.~20Q5).
                 I. BACKGROUND


                                                             B. Applicable Law


         Ne;·:.t © 2015 Thomson Reuters. No claim to original U.S. Government Works.
TIC Energy and Chemical, Inc. v. Martin, Not Reported in S.W.3d (2015)
2015 WL 127777

The TWCA provides that "[r]ecovery of workers'
compensation benefits is the exclusive remedy of         !d. § 406.122(b) (West, Westlaw through 2013 3d
an employee covered by workers' compensation             C.S.) (emphasis added). 2.
insurance coverage or a legal beneficiary against the
employer or an agent or employee of the employer for     l                              ,...,_......,""""(l,_,_
                                                                                                             6, entitled "Employer
the death of or a work-related injury sustained by the             Chargebacks Prohibited," provides that it is
employee." TEX. LA B. .OD E AN N. § 08 .00 1 (a).                  an "administrative violation" for an employer
                                                                   to "collect from an employee, directly or
Section 406.123 of the TWCA provides in relevant                   indirectly, a premium or other fee paid by
part:                                                              the employer to obtain workers' compensation
                                                                   insurance coverage, except as provided by
  (a) A general contractor and a subcontractor                     Sections 406.123 and 406.144." TEX. LAB.
     may enter into a written agreement under                      CQPEh.l,.Jt·L § 41~_,QQ(i_ (West, Westlaw through
     which the general contractor provides workers'                2013 3d C.S.).
     compensation msurance coverage to the
                                                                   In the statutes cited above, "this subtitle" refers to
     subcontractor and the employees of the
                                                                   the entire TWCA; i.e., subtitle A of title 5 of the
     subcontractor.                                                labor code. See generally id. §§ 401.001-419.007
                                                                   (West, West1aw through 2013 3d C.S.).
     *2 ....

  (d) If a general contractor ... elects to provide      C. Analysis
     coverage under Subsection (a)             then,     TIC's summary judgment motion argues that the
                                                         exclusive remedy provision applies to Martin's suit
    notwithstanding Section 415.006, 1 the actual
                                                         because, even though TIC is not Martin's employer,
    premiums, based on payroll, that are paid or
                                                         TIC is deemed to be a fellow "employee" of UCC
    incurred by the general contractor .. . for the
                                                         under section 406.123 of the TWCA. Seeid. §
    coverage may be deducted from the contract price
                                                         408.001 (a) (providing that exclusive remedy provision
    or other amount owed to the subcontractor ... by
                                                         extends to claims made against an "employee of
    the general contractor ....
                                                         the employer"). TIC contends that it is a "deemed
  (e) An agreement under this section makes              employee" of UCC because the two parties entered
     the general contractor the employer of the          into a written agreement under which UCC provided
     subcontractor and the subcontractor's employees     workers' compensation insurance coverage to TIC
     only for purposes of the workers' compensation      and TIC's employees through an "Owner-Controlled
     laws of this state.                                 Insurance Program" ("OCIP") operated by The

!d. § 406.123 (West, Westlaw through 2013 3d C.S.)
(emphasis added). On the other hand, section 406.122     Lid- _1!- .BLc;g, 284 S.W.3d 349'-'--3"'6,_,>'---'-"'-"'"-'--"'-"-'"-"-'
provides that:                                           (holding that an OCIP may qualify as "providing"
                                                         workers' compensation insurance to subcontractors
  (b) A subcontractor and the subcontractor's
                                                         under section 406.123(a)). TIC also alleged that,
     employees are not employees of the general
                                                         "[a]cting under Dow's authority and in order to
     contractor for purposes of this subtitle if the
                                                         implement the OCIP, [UCC] deducted the cost of the
     subcontractor:
                                                         actual OCIP premiums, based on payroll, for TIC's
    (1) is operating as an independent contractor; and
                                                         coverage from TIC's earnings under the Agreement."
                                                         SeeTEX. LAB. CODE AN N. § 406.123(d).
    (2) has entered into a written agreement
       with the general contractor that evidences        In support of its motion, TIC attached a March 13,
       a relationship in which the subcontractor         2008 "Agreement for Services" between UCC and
       assumes the responsibilities of an employer for   Gulf States, Inc. ("Gulf States"), TIC's predecessor,
       the performance of work.                          under which Gulf States agreed to provide certain



\'i'>: ',,\,j'tiNe:.;t © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           2
TIC Energy and Chemical, Inc. v. Martin, Not Reported in S.W.3d (2015)
2015 WL 127777

mechanical maintenance services at the Seadrift            However, he argues that sec:tion 4Q6.1 :2,3 is trumped by
facility. The agreement contained the following            the language of the preceding statute, section 406.122,
provision regarding insurance coverage:                    which states that a subcontractor who enters into an
                                                           agreement with a general contractor and "assumes the
   *3 18.3 Insurance Provided under "Owner                 responsibilities of an employer for the performance
     Controlled Insurance Program"-UCC agrees              of work" is not a deemed employee. !d. § 406.122.
     upon the terms and conditions contained               Martin further notes that, under the agreement at
     herein, as part of [Dow's OClP], to procure,          issue, TIC-not UCC-is responsible for adequately
     maintain during the life of this Contract,            supervising TIC's employees; for ensuring that TIC's
     and pay for, in the name of [Gulf States],            employees follow work site rules and regulations; for
     Workers' Compensation and Employer's Liability        "maintaining acceptable safety performance"; and for
     insurance and Commercial General Liability            investigating incidents that occur on the work site.
     insurance in amounts equal to or, at UCC's            Finally, Martin points out that the agreement contains
    sole discretion, greater than the minimum limits,      specific provisions designating UCC as the "statutory
    required in Subsections 18.1.1 and 18.1.2 of the       employer" for "Contractors providing Services in
    Contract.                                              Louisiana" and "Contractors providing Services in
                                                           Michigan" but that there is no similar clause for Texas
                                                           workers. Martin argues that there is at least a disputed
     18.3.1 The insurance m Section 18.3 IS                issue of material fact as to whether the agreement
       for the protection of [Gulf States] and             "evidences a relationship in which [TIC] assumes the
       any Subcontractors who will be performing           responsibilities of an employer for the performance of
       services on UCC property as part of the             work." I d. § 406.122(b )(2).
       Contract....
                                                           TIC does not appear to dispute the notion that
UCC also attached an affidavit by a Dow                    it operated as an independent contractor; instead,
representative which stated that "Dow's OCIP               it argues that it must be a "deemed employee"
provided workers' compensation insurance coverage          under sec tion 406. 123 regardless of its independent
for [UCC]'s contractors and/or subcontractors enrolled     status. In support of its position, TIC cites Garza
in the program for on-site activities at the Seadrift      v. Zachry Construction Corp., in which the San
facility." The Dow representative further averred that     Antonio court of appeals held that a subcontractor
Gulf States's name change to TIC was properly              was properly considered a "deemed employee" under
reported to the OCIP administrator and that, "[a]t all     section 406.123 and was therefore entitled to assert
material times, including at the time made the basis of    the exclusive remedy bar. 373 S.W.Jd 715. 72 1
this suit, TIC was an enrolled and active participant in   LTe~£\pp .-~fl_IJ, Antoni9__1 _  QJ),, pet _d_~Jikd). This
Dow's OCIP program."                                       was the case even though the contract at issue
                                                           contained language specifying that the subcontractor
In response to TIC's summary judgment motion,              was an "independent contractor." Id. The First
Martin argued that the exclusive remedy provision          Court of Appeals reached a similar conclusion in
did not apply because: (I) TIC is an independent           Etie v. .lf.t.il.~b_ &UA.l]J_erl _Co.. 135 S. W.3 d 764
contractor of UCC; and (2) TIC entered into a
contract with UCC under which TIC "assume [d] the          In Etie, the injured plaintiff asserted that the
responsibilities of an employer for the performance        appellee, a lower-tier subcontractor, could not be a
of work." Id. § 406.122(b). Martin notes that              "deemed employee" because the TWCA's definition
independent contractors are explicitly excluded from       of "employee" excludes independent contractors, and
the TWCA's definition of "employee." See id. §             the subcontractor had conceded at oral argument that
40l.012(b) (West, Westlaw through 2013 3d C.S.).           it was an independent contractor. l_d, at 767 (citing
Martin concedes on appeal that TIC's agreement
                                                                          ODE ANN. § 401.0 12(b}(l)). :2 The
with UCC is "similar" to the type of agreement
                                                           court disagreed, noting that the TWCA "[ c]!early ...
contemplated by §~ ti on_1QJj_)2~_- Seeid. § 406.123.
                                                           contemplates that independent contractors may, in



       > Net!.t   © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                   3
TIC Energy and Chemical, Inc. v. Martin, Not Reported in S.W.3d (2015)
2015 WL 127777

certain circumstances, be considered 'employees'           would not be considered [the general contractor]'s
despite not meeting the definition of an 'employee'        employees for workers' compensation purposes");
in section 40:1 .0 12(b)(2) .' " Jd. The court held that         135 S.W.Jd ul 766-67 (plaintiff argued that
                                                           l:."JJ e
"the provision of workers' compensation insurance          subcontractor could not be "deemed employee"
transforms an independent contractor into a 'deemed        because TWCA's definition of "employee" excludes
employee' " for TWCA purposes. ld. And the                 independent contractors and that the exclusive remedy
court saw "no reason why this shift in status from         bar may not be asserted by lower-tier contractors).
'independent contractor' to 'deemed employee,' with        Garza and Etie are therefore not controlling.
its concomitant protections, should be denied to
lower tier subcontractors." !d. The court held that                   In 2001, the Austin court of appeals had the
"the purposes of the [TWCA J are best served by                       opportunity to apply section 406.122 when it
deeming immune from suit all subcontractors and                       considered whether a general contractor was
lower tier subcontractors who are collectively covered                required to pay workers' compensation insurance
by workers' compensation insurance"; but it hastened                  premiums for a subcontractor's employees.
to add that "we do not abrogate the right of an injured               /Jedmr:k Gi!n. Crmlractors . .Inc. v. Tex. Workers'
worker to sue a subcontractor or its employees when                   Comp. ins. FullCI, _Nq,_QJ- OO- OQ426-::.CY,_2.QQJ
that subcontractor retains its status as an independent               WL. 251~94, <tt.."'l:::4_ (Tex ,f'illp.-Au~tin Mnr. lt
                                                                      ~Jet.      den ied). Citing section 406.122(b ), the
contractor by choosing not to participate in workers'
                                                                      court held that the general contractor was liable
compensation coverage." fcL at 768.
                                                                      for the premiums because there was no evidence
                                                                      of a "written agreement between [the general
       "Employee" is defined in the TWCA as "each                     contractor and subcontractor] that evidenced an
       person in the service of another under a contract              independent relationship." !d. at *8; seeTEX.
       of hire, whether express or implied, or oral or                CIV. PRAC. & REM.CODEANN. § 406.122(b).
       written." lcl_§ 401.0 12{1!}. The term includes:               The court did not address whether an independent
          (1) an employee employed in the usual course                contractor may also be a "deemed employee"
            and scope of the employer's business who                  under section   406.123.(~.
            is directed by the employer temporarily to
                                                           The parties direct us to no other cases, and we
            perform services outside the usual course
            and scope of the employer's business;
                                                           find none, applying section 406.122. In particular,
          (2) a person, other than an independent          there appear to be no cases explicitly addressing a
            contractor    or   the   employee     of an    scenario, such as the one presented here, where a
            independent contractor, who is engaged in      subcontractor enters into both: (1) an agreement with a
            construction, remodeling, or repair work       general contractor under which the general contractor
            for the employer at the premises of the        agrees to provide workers' compensation coverage to
            employer; and                                  the subcontractor's employees, seeTEX, LAB , ODE
         (3) a person who is a trainee under the Texans    ANN. § 406.123(ill; and (2) a written agreement with
            Work program established under Chapter         the general contractor under which the subcontractor
            308.
                                                           assumes the responsibilities of an employer for
         !d.§ 401.012(b) (emphasis added).
                                                           the performance of work. See id. § 406.122(a). In
 *4 Martin argues that Garza and Etie are                  such a scenario, section 406·. 123(e) unambiguously
distinguishable because they did not discuss               states that the general contractor is deemed the
section 406.122. 1 We agree. Although independent          "employer" of the subcontractor for TWCA purposes,
subcontractors were found in those cases to be             but section 406.122(b) unambiguously states that the
"deemed employees" for purposes of the TWCA,               subcontractor is not deemed an "employee" of the
the plaintiffs in those cases apparently did not argue     general contractor for TWCA purposes. Seeid. '§
that section 406.122, in particular, precluded the         406.122Cb), 406 .123(e).
subcontractors from asserting "deemed employee"
status. CfGarza, _IZ~ ......S.WJ.d_~LI12 (plaintiff        We therefore conclude that, as applied to these facts,
argued that general contractor and subcontractor           the two statutes irreconcilably conflict. But TIC did
"contractually agreed [the subcontractor]'s employees      not present this issue to the trial court in its motion



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TIC Energy and Chemical, Inc. v. Martin, Not Reported in S.W.3d (2015)
2015 WL 127777

                                                                     statutory employee of the general contractor, but
for summary judgment; in fact, TIC's motion did not
                                                                     only for workers' compensation insurance and
mention section 406.122 at all.~ Moreover, neither                   nothing else." Martin argues in his brief on appeal
party argued, at the trial court or on appeal, that the              that "(t]he clear intention of[section]406.122(b)
statutes conflict; rather, they both argue that one statute          is to specify a subset of subcontractors who will
applies and the other does not. li The issue of how to               not be deemed employees by the operation of
                                                                     [section]406. 123(e)."
resolve the conflict between the statutes was thus not
before the trial court, and so we do not consider it                 The summa1y judgment pleadings contained in
here. 1 SeeTEX. R. A.Pr.,.E,c..TiclliU, 1ll. We merely               the record before this Court do not contain any
hold that, because its motion did not establish that                 citations to cases or other authority regarding the
section 406.122(b) does not apply, TIC did not meet its              resolution of irreconcilably conflicting statutes.
summary judgment burden to establish its entitlement                 On appeal, TIC cites only one such case, Jackson
                                                                     Jl,_   Stat?. Q[l_is;r;_ ],![ /Jdminis.!.aJ,.tJJ:g_ fifJ1Ti!lgS,_32l
to judgment as a matter of law. SeeiE..X._lL~~--
166a(c); )oe. 145 S. W.3d at 157. The trial court did not
                                                                     .S ..W_,__' d 29_Q, 221L(l!;.1. 2.0.11) (setting forth the
                                                                     rule that "a more specific statute will prevail over
err in denying TIC's summary judgment motion.
                                                                     a conflicting general provision"); Martin cites
                                                                     none.
       Despite the fact that Martin argued for the
       application of section 406.122 in his response to
       TIC's summary judgment motion, TIC also does                                  III. CONCLUSION
       not address section 406.122 in its initial appellate
       brief.                                                 *5 We affirm the judgment of the trial court.

       For example, in its reply brief on appeal,
       TIC argues that sect' on ::\.Q.Q...L;U"provides an     All Citations
       exception to the general framework of section
       406.122 and deems the subcontractor the                Not Reported in S.W.3d, 2015 WL 127777


End of Document                                                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.




   ::,tl0•NNexr © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                         5
TIC Energy and Chemical, Inc. v. Martin, Not Reported in S.W.3d



    History (1)


    Direct History (1)
      1. TIC Energy and Chemical. Inc. v. Martin "'
      2015 WL 127777 , Tex.App.-Corpus Christi , Jan. 08, 2015 , petition for review filed ( Feb 20, 2015 )




     . NE,x.t © 2015 Thomson Reuters. No claim to original U.S. Government Works.                             6
