                              Fourth Court of Appeals
                                     San Antonio, Texas
                                MEMORANDUM OPINION

                                        No. 04-17-00291-CV

                                   Roberto Avila RODRIGUEZ,
                                            Appellant

                                                  v.

                          PANTHER EXPEDITED SERVICES, INC.,
                         Amigo Staffing, Inc., and Dicex International, Inc.,
                                             Appellees

                     From the 111th Judicial District Court, Webb County, Texas
                                Trial Court No. 2015CVT001668 D2
                           Honorable Monica Z. Notzon, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Karen Angelini, Justice
                  Marialyn Barnard, Justice
                  Rebeca C. Martinez, Justice

Delivered and Filed: July 31, 2018

AFFIRMED IN PART; REVERSED AND REMANDED IN PART

           Appellant Roberto Avila Rodriguez brought a negligence action against Amigo Staffing,

Inc., Dicex International, Inc., and Panther Expedited Services, Inc., seeking to recover for injuries

he allegedly sustained while operating a forklift. Rodriguez subsequently nonsuited Amigo

Staffing, but Dicex filed a third-party petition against Amigo Staffing. Dicex filed a traditional

motion for summary judgment, Panther filed a no evidence motion for summary judgment, and

Amigo Staffing filed traditional and no evidence motions for summary judgment as to Dicex’s

third-party claims. The trial court granted motions for summary judgment filed by Dicex and
                                                                                      04-17-00291-CV


Panther, dismissed as moot Dicex’s third-party claims against Amigo Staffing, and rendered a take

nothing judgment. On appeal, Rodriguez contends the trial court erred in granting summary

judgment in favor of Dicex and Panther, and because it erred in granting summary judgment in

favor of Dicex, also erred in dismissing as moot Dicex’s third-party claims against Amigo Staffing.

We affirm the trial court’s summary judgment in favor of Panther. However, we reverse the

summary judgment in favor of Dicex, reverse the dismissal of Dicex’s third-party claims against

Amigo Staffing, and remand this portion of the matter to the trial court for further proceedings

consistent with our opinion.

                                          BACKGROUND

       The record shows Rodriguez was employed as a forklift operator by Amigo Staffing, which

claims to be a temporary employment service (“TES”). Rodriguez was assigned to operate a

forklift at Dicex, which operates a freight and cargo warehouse and distribution center. The

assignment was made pursuant to an agreement for temporary employment services between

Amigo Staffing and Dicex. According to Rodriguez’s petition, on the day he was injured, he was

using a forklift owned by Dicex to move cargo from a tractor-trailer owned or controlled by

Panther into a Dicex warehouse. Rodriguez claimed that because of the way some of the cargo

was positioned inside the tractor-trailer, he “was forced to drive onto the loading dock with the

forklift in reverse.” Rodriguez alleged that after he successfully moved several loads from the

tractor-trailer to the warehouse, the tractor-trailer, which had not been properly secured by drivers

Tammy Rheudean Ellis and Thomas Jay Daly, moved forward, creating a gap between the tractor-

trailer and the warehouse. According to Rodriguez, as he was backing the forklift onto the loading

dock, the forklift fell into the gap. Rodriguez claimed he and the forklift “suddenly and violently

fell backwards onto the concrete below as the cargo fell on top of the forklift.” Rodriguez alleged

he was rendered unconscious and suffered serious injuries.
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                                                                                                   04-17-00291-CV


        The record shows that after he was injured, Rodriguez accepted benefits based on a

workers’ compensation insurance policy maintained by Amigo Staffing. Nevertheless, he filed

suit against Amigo Staffing, Dicex, Panther, Ellis, and Daly for negligence, seeking to recover

damages for his injuries. Rodriguez later filed a notice of nonsuit with regard to Amigo Staffing,

and the trial court signed an order granting the nonsuit. Thereafter, Dicex filed a third-party

petition against Amigo Staffing, bringing Amigo Staffing back into the lawsuit.

        Ultimately, Dicex, Panther, and Amigo Staffing filed motions for summary judgment.

Rodriguez filed responses to the motions filed by Dicex and Panther, and Dicex filed a response

to the motion filed by Amigo Staffing. After a hearing, the trial court rendered summary judgment

in favor of Dicex and Panther and, as noted above, dismissed as moot Dicex’s third-party claim

against Amigo Staffing. 1 Thereafter, Rodriguez perfected this appeal.

                                                    ANALYSIS

        In this appeal, Rodriguez challenges the summary judgments granted in favor of Panther

and Dicex. He contends summary judgment was improper with regard to both Dicex and Panther

because he produced more than a scintilla of evidence that precluded either summary judgment.

                          Dicex’s Traditional Motion for Summary Judgment

        Dicex filed a traditional motion for summary judgment. In its motion, Dicex asserted

Rodriguez’s claims were barred under the exclusive remedy provision in the Texas Workers’

Compensation Act (“TWCA”).                Specifically, Dicex argued it produced summary judgment

evidence showing that at the time of the injury, Amigo Staffing was a TES that carried workers’

compensation insurance covering Rodriguez, and Dicex was Amigo Staffing’s client pursuant to



1
  The record does not include a disposition of Rodriguez’s claims against Ellis or Daly. However, the trial court
granted severances, thereby rendering the summary judgments final despite the absence of a disposition of Rodriguez’s
claims against Ellis and Daly. Ellis and Daly are not parties to this appeal.

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                                                                                      04-17-00291-CV


a temporary services employment agreement. Therefore, under Chapter 93 of the Texas Labor

Code, the workers’ compensation policy held by Amigo Staffing covered any injuries sustained

by Rodriguez during his assignment with Dicex, and any action pursued against Dicex was barred

by the exclusive remedy provision of the TWCA. In response and on appeal, Rodriguez contends

summary judgment was improper because: (1)Amigo Staffing is not engaged in temporary

employment services pursuant to Chapter 93 of the Labor Code, (2) Amigo Staffing’s worker’

compensation policy does not cover Dicex, and (3) Amigo Staffing is not a licensed professional

employer organization pursuant to Chapter 91 of the Labor Code.

                                        Standard of Review

       We review a traditional summary judgment de novo. Cantey Hanger, LLP v. Byrd, 467

S.W.3d 477, 481 (Tex. 2015); Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).

A traditional summary judgment motion is properly granted when the movant establishes there are

no genuine issues of material fact and it is entitled to judgment as a matter of law. TEX. R. CIV. P.

166a(c); Cantey Hanger, 467 S.W.3d at 481; Provident Life & Accident Ins. Co. v. Knott, 128

S.W.3d 211, 215 (Tex. 2003). “When reviewing a summary judgment, we take as true all evidence

favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in

the nonmovant’s favor.” Cantey Hanger, 467 S.W.3d at 481 (quoting Dorsett, 164 S.W.3d at 661).

When, as here, a defendant moves for summary judgment based on an affirmative defense, such

as the exclusive remedy provision of the TWCA, the defendant has the burden to prove each

essential element of that defense. See id.; Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508

(Tex. 2010); Rodriguez v. Lockhart Contracting Services, Inc., 499 S.W.3d 48, 53 (Tex. App.—

San Antonio 2016, no pet.). If the defendant fails to prove as a matter of law each essential element

of the asserted affirmative defense, summary judgment is improper. Rodriguez, 499 S.W.3d at 53



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                                                                                    04-17-00291-CV


(citing Rico v. Judson Lofts, Ltd., 404 S.W.3d 762, 765 (Tex. App.—San Antonio 2013, pet.

denied)).

                                         Applicable Law

       The TWCA limits an employer’s liability for injuries sustained by its employees through

the exclusive remedy provision, which states that “[r]ecovery of workers’ compensation is the

exclusive remedy of an employee covered by workers’ compensation insurance coverage … for

… a work-related injury sustained by the employee.” TEX. LAB. CODE ANN. § 408.001(a) (West

2015); see Port Elevator-Brownsville v. Casados, 358 S.W.3d 238, 241 (Tex. 2012); Rodriguez,

499 S.W.3d at 53. It is intended to benefit both employers and employees. Casados, 358 S.W.3d

at 241; Rodriguez, 499 S.W.3d at 53. For employees, it provides them with compensation for

injuries sustained in the course and scope of their employment, without proof the injuries were the

fault of the employer and without regard to any negligence of coworkers. Casados, 358 S.W.3d

at 241 (citing TEX. LAB. CODE ANN. § 406.031; HCBeck, Ltd. v. Rice, 284 S.W.3d 349, 350 (Tex.

2009); Tex. Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 511 (Tex. 1995)); Rodriguez,

499 S.W.3d at 53. For employers, their liability is limited. Casados, 358 S.W.3d at 241 (citing

Garcia, 893 S.W.2d at 510–11). Because the TWCA benefits both employers and employees, the

Texas Supreme Court has held it should be construed “liberally in favor of coverage.” Casados,

358 S.W.3d at 241; Rodriguez, 499 S.W.3d at 53.

       The exclusive remedy provision is an affirmative defense. Rodriguez, 499 S.W.3d at 53

(citing Rico, 404 S.W.3d at 765). If proven, the provision protects employers from certain common

law claims of their employees, including negligence — the claim brought by Rodriguez against

Dicex. Id. Employees are covered by workers’ compensation insurance — and therefore subject

to the exclusive remedy provision — if their employers have approved insurance policies covering



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                                                                                     04-17-00291-CV


the payment of workers’ compensation benefits to their employees. See Casados, 358 S.W.3d at

242; Rodriguez, 499 S.W.3d at 53.

       An employee may also be covered by workers’ compensation insurance — and therefore

subject to the exclusive remedy provision of the TWCA — if he enters employment with a TES

that has elected to obtain workers’ compensation insurance coverage. See TEX. LAB. CODE ANN.

§ 93.004(a). Section 93.004(a) of the Labor Code specifically states that a certificate of insurance

showing a TES has workers’ compensation insurance “constitutes proof of workers’ compensation

insurance coverage for the temporary employment service and the client of the temporary

employment service with respect to all employees of the temporary employment service assigned

to the client. Id. (emphasis added). Section 93.004(b) goes on to state that if a TES has elected to

carry workers’ compensation insurance, both the TES and a client of the TES are subject to the

exclusive remedy provision found in section 408.001(a) of the TWCA. Id. § 93.004(b); see also

id. § 408.001(a).

                                            Application

       As set out above, in its motion for summary judgment, and now on appeal, Dicex argues it

proved as a matter of law that: (1) Dicex was a client of Amigo Staffing, and (2) Amigo Staffing

was a TES that carried workers’ compensation insurance. Dicex contends, therefore, that pursuant

to section 93.004(b), Rodriguez’s claims are barred by the exclusive remedy provision of the

TWCA. See TEX. LAB. CODE ANN. § 93.004(b), § 408.001(a). This was the only ground upon

which Dicex sought summary judgment.

       However, we hold section 93.004 is not applicable here. The section was added during the

83rd session of the Texas Legislature. Prior to its enactment, there was no specific statutory

provision governing application of workers’ compensation insurance to clients of a TES. When it

enacted section 93.004, the Legislature specifically stated:
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                                                                                       04-17-00291-CV


       The change in law made by this Act applies only to a claim based on a work-related
       injury that occurs on or after the effective date of this Act. A claim based on a
       worker-related injury that occurs before the effective date of this Act is governed
       by the law in effect on the date the injury occurred, and the former law is continued
       in effect for that purpose.

Act of May 16, 2013, 83rd Leg. R.S., ch. 321, 2013 Tex. Gen Laws 1082, § 2 (current version at

TEX. LAB. CODE ANN. § 93.004) (emphasis added).

       It is undisputed — based on the appellate record and in statements contained in the briefs

of all parties — that the work-related injury upon which Rodriguez’s claims are based occurred on

May 19, 2013, almost four months before the effective date of section 93.004. Thus, section

93.004(b) was not effective at the time of the injury, and therefore, is inapplicable to this case. See

id. In its motion for summary judgment, Dicex solely relied on the exclusive remedy provision of

the TWCA via section 93.004(b) of the Labor Code as the basis for summary judgment. However,

because the statute was inapplicable, it could not form the basis for the trial court’s judgment in

favor of Dicex.

       Appellate courts will not affirm a summary judgment granted on grounds not specifically

presented in the motion for summary judgment. Travis v. City of Mesquite, 830 S.W.2d 94, 100

(Tex. 1992). As this court stated in Rentfro v. Cavazos, “even if a nonmovant fails to except,

respond, or obtain a ruling, if the grounds for summary judgment are not expressly presented in

the motion for summary judgment itself,” summary judgment is improper. No. 04-10-00617-CV,

2012 WL 566364, at * (Tex. App.—San Antonio Feb. 15, 2012, pet. denied) (citing McConnell v.

Southside Indep. Sch. Dist., 858 S.W.2d 337, 342–43 (Tex. 1993) (plurality op.)); see Coastal

Cement Sand Inc. v. First Interstate Credit Alliance, Inc., 956 S.W.2d 562, 565 (Tex. App.—

Houston [14th Dist.] pet denied) (holding motion for summary judgment must expressly present

grounds upon which it is made and stand or fall on grounds expressly presented therein) (citing

McConnell, 858 S.W.2d at 341). We hold that because Dicex’s sole basis for summary judgment,
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                                                                                      04-17-00291-CV


as stated in its motion, was the exclusive remedy provision of the TWCA via section 93.004(b) of

the Labor Code, summary judgment was improper.

                    Panther’s No Evidence Motion for Summary Judgment

       Panther filed a no evidence motion for summary judgment. Panther asserted, with regard

to Rodriguez’s respondeat superior claim, that there was no evidence Panther employed Tammy

Rheudean Ellis and Thomas Jay Daly, the drivers who allegedly moved the tractor-trailer that

created that gap into which Rodriguez and the forklift fell. As for Rodriguez’s negligence claim,

he claimed Panther was negligent in failing to: (1) properly train its employees on safety

procedures and to warn others on a worksite when a dangerous situation arises; (2) properly

educate its employees regarding the dangers of failing to properly secure a trailer during the

loading and unloading process; (3) provide employees with necessary equipment; (4) properly

inspect and maintain its tractor-trailers to provide employees with equipment in good working

order; and (5) create or install adequate safety procedures, checklists, protocols, and processes for

employees to adhere to.

       In response to Panther’s assertion that there was no evidence to support Rodriguez’s claim

of respondeat superior, Rodriguez argued below, and now argues on appeal, that Panther is

vicariously liable as a matter of law based on the statutory employment doctrine, which creates a

nondelegable duty under federal law applicable to interstate motor carriers.          Alternatively,

Rodriguez contends he presented evidence that Panther retained control over the drivers — Ellis

and Daly — so Panther is liable even if the drivers are independent contractors. As for his

negligence claim, Rodriguez refers back to the statutory employment doctrine as evidence of a

legal duty. As evidence of breach, Rodriguez points to the manner in which the incident occurred

and the distance the tractor-trailer traveled from the loading dock as some evidence that (1) the

parking brake was “not up to the required federal standards,” or (2) the tractor-trailer was moved
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by Ellis or Daly without having first ensured “no one was still unloading the truck.” Rodriguez

also asserts there was evidence the breach caused his injuries because he “had not experienced any

injuries or pain in the areas injured in the subject incident prior to the subject incident.”

                                         Standard of Review

       We review do novo a trial court’s order granting a no evidence motion for summary

judgment. Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006); Davis v. Canyon Creek Estates

Homeowners Ass’n, 350 S.W.3d 301, 308 (Tex. App.—San Antonio 2011, pet. denied). When

reviewing a no evidence motion with a traditional motion, we view the evidence in the light most

favorable to the nonmovant and resolve all doubts in the nonmovant’s favor. Sudan, 199 S.W.3d

at 292; Davis, 350 S.W.3d at 308.

       A no evidence summary judgment is, in essence, a pretrial directed verdict. TEX. R. CIV.

P. 166a(i); Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009); Tatsch v. Chrysler Grp.,

LLC and Infinity Cnty. Mut. Ins. Co., No. 04-13-00757-CV, 2014 WL 6808637, at *2 (Tex. App.—

San Antonio Dec. 3, 2014, pet. denied) (mem. op.). After an adequate time for discovery passes,

a party without the burden of proof at trial may move for summary judgment on the ground that

there is no evidence to support one or more essential elements of the nonmovant’s claim. See TEX.

R. CIV. P. 166a(i); Tatsch, 2014 WL 6808637, at *7; All Am. Tel., Inc. v. USLD Commons., 291

S.W.3d 518, 526 (Tex. App.—Fort Worth 2009, pet. denied). The moving party must specifically

state the elements for which no evidence exists. TEX. R. CIV. P. 166a(i); Timpte Indus., 286 S.W.3d

at 310; Tatsch, 2014 WL 6808637, at *7. To defeat a no evidence motion for summary judgment,

the nonmovant must produce more than a scintilla of evidence on each challenged element. DTND

Sierra Invs., LLC v. Deutsche Bank Nat’l Trust Co., No. 04-12-00817-CV, 2013 WL 4483436, at

*2 (Tex. App.—San Antonio Aug. 21, 2013, pet. denied) (mem. op.); Martinez v. Leeds, 218

S.W.3d 845, 848 (Tex. App.—El Paso 2007, pet. denied). As the supreme court has stated, more
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                                                                                     04-17-00291-CV


than a scintilla of evidence exists when the evidence “rises to a level that would enable reasonable

and fair-minded people to differ in their conclusions.” King Ranch, Inc. v. Chapman, 118 S.W.3d

742, 751 (Tex. 2003) (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983));

Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997) (same). Less than a

scintilla of evidence exists when the evidence is so weak as to create mere surmise or suspicion of

a fact. King Ranch, 118 S.W.3d at 751; Midwest Emp’rs Cas. Co. v. Harpole, 293 S.W.3d 770

(Tex. App.—San Antonio 2009, no pet.). The trial court must grant the no evidence motion if the

nonmovant fails to bring forth more than a scintilla of summary judgment evidence to raise a

genuine issue of material fact as to the challenged elements. TEX. R. CIV. P.166a(i); DTND Sierra

Invs., 2013 WL 4483436, at *2; Tatsch, 2014 WL 6808637, at *2.

                                         Applicable Law

       As previously noted, Rodriguez alleged Panther was liable under the doctrine of respondeat

superior based on the negligence of its employees, Ellis and Daly. Under the theory of respondeat

superior, an employer may be vicariously liable for the negligence of an employee, even though

the employer itself was not negligent. See Goodyear Tire and Rubber v. Mayes, 236 S.W.3d 754,

757 (Tex. 2007). To establish liability based on respondeat superior, a plaintiff must prove: (1) an

agency relationship between the alleged tortfeasor and the employer, e.g., employer-employee

relationship; (2) the alleged tortfeasor committed a tort; and (3) the tort was committed in the

course and scope of the employee’s authority. Id.; Knight v. City Street, L.L.C., 167 S.W.3d 580,

582–83 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (citing Baptist Mem’l Hosp. Sys. v.

Sampson, 969 S.W.2d 945, 947 (Tex. 1998)). A tort is within the course and scope of an

employee’s authority if his action: (1) was in the employee’s general authority; (2) was in

furtherance of the employer’s business; and (3) was to accomplish the object for which the

employee was hired. Mayes, 236 S.W.3d at 757; Knight, 167 S.W.3d at 582–83.
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                                                                                            04-17-00291-CV


        Generally, the employer of an independent contractor is not liable for harm caused to

another by an act or omission of the contractor or his servants. Gonzalez v. Ramirez, 463 S.W.3d

499, 506 (Tex. 2015); Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788, 791 (Tex. 2006); see

RESTATEMENT (SECOND) OF TORTS § 409 (1965). However, in certain circumstances, employers

may be held vicariously liable for the negligence of independent contractors. Fifth Club, Inc., 196

S.W.3d at 795. First, if the work involves a nondelegable duty, whether because of inherent danger

or statutory prescription, an employer may be held vicariously liable. Id. (citing Shell Oil Co. v.

Khan, 138 S.W.3d 288, 292 (Tex. 2004) (inherently dangerous activities); MBank El Paso, N.A.

v. Sanchez, 836 S.W.3d 151, 153 (Tex. 1992) (statutory imposition)). Nondelegable duties are

imposed by law based on concerns for public safety, precluding parties bearing the duty from

delegating it to independent contractors. Fifth Club, Inc., 196 S.W.3d at 795. Whether a party is

vicariously liable for the work of a non-employee “is determined by the facts of the case analyzed

under the … nondelegable duty exception … which includes statutorily-imposed duties.” Id. at

796.

        One such statutory, nondelegable duty, and the one relied upon by Rodriguez, arises out of

the Federal Motor Carrier Safety Regulations (“FMCSR” or “regulations”) 2, which apply to motor

carriers authorized to operate by the Federal Motor Carrier Safety Administration (“FMCSA”).

See Morris v. JTM Material, Inc., 78 S.W.3d 28, 38 (Tex. App.—Fort Worth 2002, no pet.); see

also 49 C.F.R. § 376.1. The regulations were enacted in response to motor carriers’ attempts to

immunize themselves from liability by leasing trucks and characterizing drivers as independent

contractors. Motloch v. Albuquerque Tortilla Co., Inc., 454 S.W.3d 30, 37 (Tex. App.—Eastland

2014, no pet.) (citing Morris, 78 S.W.3d at 38). As recognized by the court in Morris, because


2
 Texas has adopted many, but not all, of the FMCSRs. See generally 37 TEX. ADMIN. CODE 4.11, et seq. (2018).
However, Rodriguez alleged application of the FMCSRs, not the regulations under Texas law.

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under the FMCSR interstate motor carriers have a legal right and duty to control leased vehicles

that are operated for their benefit, the regulations create a statutory employee relationship between

the employees of the owner-lessors and the lessee-carriers. Id. at 38–39; see Tamez v. Sw. Motor

Transport, Inc., 155 S.W.3d 564, 573 (Tex. App.—San Antonio 2004, no pet.). Thus, an interstate

motor carrier is vicariously liable as a matter of law under the FMCSR for the negligence of its

statutory employee drivers. Motloch, 454 S.W.3d at 39. However, relying on federal law, the

Texas Supreme Court has held that when analyzing whether a defendant is a motor carrier, a court

must focus on the specific transaction at issue, not merely whether a defendant is certified as a

motor carrier. Gonzalez, 463 S.W.3d at 504 (citing Camp v. TNT Logistics Corp., 553 F.3d 502,

507 (7th Cir. 2009); Harris v. Velichkov, 860 F. Supp. 2d 970, 979 (D. Neb. 2012), aff’d, Harris

v. FedEx Nat’l LTL, 760 F.3d 780 (8th Cir. 2014)). In other words, possession of a motor carrier

license is not determinative of the applicability of the regulations; rather, the critical inquiry is

what capacity the defendant was acting during the transaction or incident. Camp, 553 F.3d. at 507.

Federal courts have specifically held that shippers who engage independent contractors to transport

goods are not subject to the FMCSR. See, e.g., Harris, 860 F. Supp. 2d at 979; Caballero v.

Archer, Civil Action No. SA-04-CA-561-OG, 2007 WL 628755, at *4 (W.D. Tex. Feb. 1, 2007).

       Second, and in addition to the nondelegable duty exception, an employer may also be

vicariously liable for the acts of an independent contractor if the employer retains control over the

manner in which an independent contractor performs the work that causes the damage. Gonzalez,

463 S.W.3d at 506; Fifth Club, Inc., 196 S.W.3d 791. A right of control requires more than a

general right to: (1) order work stopped or resumed, (2) inspect work progress or receive reports,

(3) make suggestions or recommendations that need not necessarily be followed, or (4) prescribe

alterations and deviations. Gonzalez, 463 S.W.3d at 506 (quoting Koch Refining Co. v. Chapa, 11

S.W.3d 153, 155 (Tex. 1999) (quoting RESTATEMENT (SECOND) OF TORTS § 414 cmt. c); Fifth
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                                                                                    04-17-00291-CV


Club, Inc., 196 S.W.3d 791 (same). Rather, “[t]here must be such a retention of right of

supervision that the contractor is not entirely free to do the work in his own way.” Gonzalez, 463

S.W.3d at 506; Fifth Club, Inc., 196 S.W.3d 791. This does not mean that an employer cannot —

without subjecting itself to liability — direct when and where an independent contractor does the

work or request information and reports about it. Gonzalez, 463 S.W.3d at 506; Fifth Club, Inc.,

196 S.W.3d 791. Liability attaches only when the employer “controls the details or methods of

the independent contractor’s work to such an extent that the contractor cannot perform the work

as it chooses.” Fifth Club, Inc., 196 S.W.3d 791. However, the supervisory control must relate to

the activity that actually caused the injury. Id.

       Rodriguez also alleged Panther itself was negligent.        Under Texas law, a plaintiff

establishes a negligence claim by proving the defendant owed a legal duty to the plaintiff, the

defendant breached that duty, and the breach proximately caused the plaintiff’s injury or damages.

Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 782 (Tex. 2001); Davis-Lynch, Inc. v. Asgard

Techs., LLC, 472 S.W.3d 50, 63 (Tex. App.—Houston [14th Dist.] 2015, no pet.); Cumpian v. Pan

Am. Exp., Inc., 147 S.W.3d 515, 517 (Tex. App.—San Antonio 2004, no pet.). The existence of a

duty is a question of law for the court based on facts surrounding the occurrence in question.

Davis-Lynch, Inc., 472 S.W.3d at 64.

                                             Application

   1. Vicarious Liability — Nondelegable Duty/Statutory Employees Under FMSCR

       Rodriguez first contends Panther is vicariously liable as a matter of law for the conduct of

Ellis and Daly because Panther was a motor carrier, and therefore, pursuant the FMCSR, Ellis and

Daly were Panther’s statutory employers, rendering Panther liable as a matter of law. Panther

counters, arguing that based on the transaction in this matter, Panther was acting as a shipper as

opposed to a motor carrier, and thus, is not vicariously liable under the FMCSR.
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       In support of its contention that Panther is a motor carrier subject to a nondelegable duty

under the FMCSR, Rodriguez offered as summary judgment evidence, the contract between

Panther and an entity known as All Roads, Inc. and the accident report. Both documents establish,

and it is undisputed, that Panther is a licensed motor carrier under the FMCSR. However, the

inquiry does not end there. As discussed above, it is not enough that the defendant is a motor

carrier; rather, the defendant must be a motor carrier with regard to the transaction in question.

Gonzalez, 463 S.W.3d at 504. Here, Rodriguez’s own summary judgment evidence shows that

with regard to the transaction in this case, Panther was acting as a shipper as opposed to a motor

carrier. First, the contract between All Roads, Inc. and Panther shows All Roads Inc. was acting

as the motor carrier, providing its vehicles and drivers for the transport of goods belonging to

Panther’s customers. In addition, Rodriguez offered as summary judgment proof the deposition

of Panther’s corporate representative, Allen H. Motter, who testified how Panther operates:

       Our customer calls us and we offer that load to a fleet owner or multiple fleet
       owners and they decide if they want to take that load. We negotiate on price with
       the fleet owner, and he or she decides — the owner of that company decides
       whether they want to take that freight.

                                             *     *      *

       If the answer is, Yes, they’ll take that freight, then they take that freight — we
       notify the customer that we can accept that pickup. We ask the customer what time
       the shipment will be ready, we communicate that to the fleet owner, and that fleet
       owner makes that happen. So they’re actually performing the trucking functions
       and they’re picking up that freight, they’re transporting that freight, they’re
       delivering that freight. That’s — that’s basically, in a nutshell, at a high level how
       the transaction happens.

       Motter’s deposition testimony confirms that with regard to the transaction in question —

and pursuant to the contract between Panther and All Roads, Inc. — All Roads, Inc. was acting as

the motor carrier; Panther was acting as a shipper. We find Harris v. Velichkov instructive — as




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did the supreme court in Gonzalez. See Gonzalez, 463 S.W.3d at 505–06 (citing Harris, 860 F.

Supp. 2d at 973–80).

       In Harris, FedEx National LTL, Inc. contracted with Fresh Start to transport certain cargo.

Fresh Start employed a driver, Velichkov, who was involved in an automobile accident, resulting

in the death of one person and injuries to another (“the plaintiffs”). 860 F. Supp. 2d at 973. The

plaintiffs sued FedEx, alleging it was vicariously liable under the FMCSR for Velichkov’s

negligence based on a nondelegable duty. Id. at 973, 978–79. It was undisputed that FedEx is a

licensed motor carrier under the FMCSR and has its own fleet of vehicles. Id. However, FedEx

also contracted with various motor carriers to transport goods between certain cities. Id. at 973–

74. Because FedEx had contracted with Fresh Start to provide transportation services — and Fresh

Start hired Velichkov, FedEx moved for summary judgment, arguing it was not subject to the

regulations because it was not acting as a motor carrier in the transaction at issue. Id. at 975.

       On review, the federal district court stated the applicability of the regulations to FedEx

rested on the assumption that FedEx was a motor carrier. Id. at 979. The court held the plaintiffs’

assumption that because FedEx is a licensed motor carrier FedEx was a motor carrier for purposes

of this case was incorrect. Id. Rather, FedEx’s status as a motor carrier was wholly dependent on

the particular transaction. Id. FedEx hired Fresh Start to transport goods and Fresh Start hired the

driver, Velichkov. Id. Thus, FedEx was not acting as a motor carrier, but as a shipper; Fresh Start

was acting as the motor carrier, hired by FedEx to transport goods. Id. That FedEx might have

had authority to operate as a motor carrier was irrelevant to the transaction at issued. Id. The court

held it would be absurd to find FedEx was the motor carrier in these circumstances because if it

was, it would be required to undertake motor-carrier duties that only the entity who hired the driver

should be required to undertake, e.g., obtaining and maintaining records on the driver — including

driving and medical records, retaining the driver’s application for employment, conducting a road
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test for the driver. Id. These mandates make sense only for the entity who hires the driver, i.e.,

the actual motor carrier. Id. at 979–80. According to the court, “to read FedEx as a ‘motor carrier’

in this case and thereby an employer of Fresh Start or Velichkov, would … burden FedEx with the

nonsensical duties” with regard to a driver with whom it had no relationship. Id. at 980. The court

concluded that the plaintiffs’ attempt to “bootstrap” FedEx into motor carrier status failed because

of the actual roles assumed by the entities in this case. Id. It was Fresh Start who assumed the

motor-carrier duties, and Fresh Start that was subject to any nondelegable duty. See id.

       In this case — and by analogy to Harris — All Roads, Inc. (Fresh Start) was hired by

Panther (FedEx) to transport goods for Panther (FedEx). All Roads, Inc. (Fresh Start) hired Ellis

and Daly (Velichkov) as drivers. Thus, All Roads, Inc., like Fresh Start, acted as motor carrier,

assuming the duties provided for in the FMCSR. Just as it would have been absurd to hold FedEx

to a nondelegable duty for a driver hired by motor carrier Fresh Start, it would likewise be absurd

to hold Panther to a nondelegable duty for drivers hired by All Roads, Inc. The summary judgment

evidence produced by Rodriguez merely establishes Panther is a motor carrier.              However,

Rodriguez did not produce even a scintilla of summary judgment evidence to establish that Panther

was a motor carrier with regard to the transaction at issue in this case. Rather, evidence produced

by Rodriguez — specifically the deposition of Motter, established Panther’s status as a shipper as

opposed to a motor carrier. Accordingly, we hold Rodriguez failed to raise a fact issue with regard

to the claim of respondeat superior based on a statutory, nondelegable duty under the FMCSR.

   2. Vicarious Liability — Right of Control Under Common Law

       Alternatively, with regard to his claim of respondeat superior, Rodriguez contends he

produced more than a scintilla of evidence that Panther retained control over the drivers — Ellis

and Daly, rendering Panther vicariously liable even if the drivers are not its statutory employees

under the FMCSR. In support, Rodriguez points to the contract between Panther and All Roads,
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Inc., Panther’s Driver Handbook and Safety Manual, and certain deposition testimony from

Motter. According to Rodriguez, within this evidence, it shows Panther:

       1. Required drivers to meet certain qualification and compliance standards;
       2. Reserved the right to require the replacement of any driver who failed to meet
          its standards or failed to comply with its policies and procedures;
       3. Required drivers to operate their trucks in accordance with the law and
          Panther’s operating authorities;
       4. Required drivers to meet procedures evidencing loading/unloading in order to
          secure payment for same;
       5. Required drivers to appear at Panther’s headquarters for health inspections and
          orientation;
       6. Required drivers to adhere to Panther’s rules and regulations regarding conduct
          — even ignoring their employers’ instructions if they conflict with Panther’s;
       7. Expected drivers to contact Panther with regard to safety policies and
          procedures in the Handbook;
       8. Reserved the right to disqualify a driver if the driver is found to be in violation
          of the Handbook; and
       9. Inspected and approved any equipment to be used on Panther’s behalf.

       Viewing this evidence in the light most favorable to Rodriguez, as we must, we hold it does

not show a right of control sufficient to raise a fact issue on vicarious liability for purposes of

respondeat superior. Rodriguez pled that his injury occurred because the drivers — Ellis and Daly

— failed to properly secure the tractor-trailer at the loading dock or take certain actions during

loading and unloading, which resulted in the tractor-trailer moving forward and creating the gap

into which he and the forklift fell. There is nothing in the evidence produced and relied upon by

Rodriguez to establish the things over which Panther asserted control extended to the activities

from which Rodriguez’s injury arose. See Omega Contracting, Inc. v. Torres, 191 S.W.3d 828,

847 (Tex. App.—Fort Worth 2006, no pet.) (citing Read v. Scott Fetzer Co., 990 S.W.2d 732, 736

(Tex. 1998) (noting that in determining whether duty exists in retained control case, focus is on

whether retained control was specifically related to alleged injury); Exxon Corp. v. Tidwell, 867

S.W.2d 19, 23 (Tex. 1993) (same)). As the supreme court stated in Fifth Club, Inc., the supervisory

control must relate to the activity that caused the injury. 196 S.W.3d at 791. It is not enough to


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show Panther controlled certain aspects of a driver’s activities if Rodriguez’s injury arose from

something else. See Gen. Elec. Co. v. Moritz, 257 S.W.3d 211, 214 (Tex. 2008). The control

retained by Panther, as alleged by Rodriguez, related to qualifications and generalized safety

provisions, not securing tractor-trailers and the activities related thereto during loading and

unloading. And, according to the supreme court, requiring an independent contractor to comply

with general safety guidelines and other safety precautions does not impose an unqualified duty of

care on a contractor to ensure the safety of others. Koch Refining Co. v. Chapa, 11 S.W.3d 153,

156 (Tex. 1999) (citing Hoeschst-Celanese Corp. v. Mendez, 967 S.W.2d 354, 357–58 (Tex.

1998)).

          Moreover, the contract between Panther and All Roads, Inc., shows that as far as operations

are concerned, All Roads, Inc. controlled the drivers and their use of the equipment. In the

contract, which was part of Rodriguez’s summary judgment evidence, paragraph 9.02 specifically

states that All Roads, Inc. “will direct the operation of the equipment in all respects and will

determine the methods, means, and manner of performance of services” under the contract and is

responsible for, among other things, loading and unloading freight onto and from trailers. Thus,

Rodriguez’s own evidence belies any control by Panther over the activities that resulted in

Rodriguez’s injuries.

          We therefore hold that with regard to his claim for respondeat superior, Rodriguez failed

to produce even a scintilla of evidence that would establish Panther’s vicarious liability for the acts

of Ellis or Daly based on a right of control under common law.

   3. Panther’s Own Negligence

          Panther alleged in its no evidence motion there was no evidence of duty, breach, or

causation. If Rodriguez failed to produce a scintilla of evidence as to any one of these elements,

summary judgment in favor of Panther was proper. See DTND Sierra Invs., 2013 WL 4483436,
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at *2; Tatsch, 2014 WL 6808637, at *2. With regard to the element of breach, in his response to

the no evidence motion, and now on appeal, Rodriguez asserts the “manner in which the accident

occurred and the sheer distance the truck traveled when it moved away from the loading dock (far

enough for the forklift to fall in the space between the dock and rear of the subject truck) is

evidence” the parking brake was not up to required standards, the drivers failed to apply the brake,

or the drivers attempted to drive away from the dock without first ensuring all loading and

unloading had ceased. As evidence of these assertions, Rodriguez points to his own deposition

testimony, and photographs of the area after the incident.

       Rodriguez testified that just before the accident, he drove the forklift into the tractor-trailer

and “grabbed merchandise.” As he was backing up, “the truck moved forward or they moved it, I

don’t know.” He said when he felt the truck move, half of the forklift was still inside the truck.

Rodriguez stated that after he felt the truck moved he and the forklift “went down,” with the back

of the forklift hitting the ground first. He could not recall whether the force of the fall caused the

truck to move further forward. The photographs show the aftermath of the accident.

       The evidence relied upon by Rodriguez shows merely that the truck moved and he and the

forklift fell. The photographs only show the result of the fall. Rodriguez did not produce any

evidence to show the parking brake was defective, the drivers failed to set the parking brake, or

the drivers pulled the tractor-trailer forward as he was unloading. The evidence produced by

Rodriguez merely shows the truck somehow moved forward when he was inside and then fell into

the gap created by the movement. Rodriguez failed to produce any evidence as to how the accident

occurred — what breach was committed. For all we know, based on the evidence produced by

Rodriguez, a person not associated with Panther or the drivers released the parking brake or moved

the tractor-trailer, or the tractor-trailer moved as a result of unknown natural forces. Rodriguez’s

argument is reminiscent of a res ipsa loquitor allegation — the truck moved, therefore someone
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connected to the truck committed some sort breach. See, e.g., Sanders v. Naes Cent., Inc., 498

S.W.3d 256, 258–59 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (recognizing res ipsa loquitur

is a rule of evidence permitting fact finder to infer negligence; it relieves plaintiff of burden of

proving specific act of negligence by defendant); Turbines, Inc. v. Dardis, 1 S.W.3d 726, 740 (Tex.

App.—Dallas 1999, pet. denied). However, Rodriguez did not plead res ipsa loquitur, and

therefore, cannot rely upon it. See, e.g., Mobil Chem. Co. v. Bell, 517 S.W.2d 245, 255 (Tex.

1974); Lambert v. Gearhart-Owen Indus., 626 S.W.2d 845, 847 (Tex. App.—Corpus Christi 1981,

no writ); Brown Express Co. v. Burns, 608 S.W.2d 291, 293 (Tex. Civ. App.—Waco 1980, no

writ).

         Even when viewed in the light most favorable to Rodriguez, the evidence he produced

creates nothing more than mere surmise or suspicion that Panther or the drivers committed some

sort of breach. Evidence that is so weak as to do no more than create mere surmise or suspicion

is, in legal effect, no evidence, and is not the same as some evidence. King Ranch, 118 S.W.3d at

754. The mere occurrence of an event resulting in an injury does not establish — or raise a fact

issue — as to negligence. See West Star Transp., Inc. v. Robison, 457 S.W.3d 178, 185–86 (Tex.

App.—Amarillo 2015, pet. denied). Accordingly, we hold Rodriguez failed to produce evidence

to defeat Panther’s no evidence motion for summary judgment.

                                          CONCLUSION

         Based on our analysis, we hold: (1) the trial court erred in granting summary judgment in

favor of Dicex because in its motion for summary judgment, Dicex relied on the exclusive remedy

provision of the TWCA as made applicable to temporary employment services through section

93.004(b) of the Labor Code, which was inapplicable due to its effective date; and (2) the trial

court properly granted summary judgment in favor of Panther with regard to Rodriguez’s claims

of respondeat superior and negligence because the FMCSR did not impose upon Panther a
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nondelegable duty with regard to the transaction in this case, Rodriguez produced no summary

judgment evidence to show Panther had a right of control with regard to the activities that allegedly

caused his injuries, and Rodriguez failed to produce even a scintilla of evidence on the element of

breach. Accordingly, we reverse the trial court’s summary judgment in favor of Dicex and remand

that portion of the matter to the trial court for further proceedings, but affirm the trial court’s

summary judgment in favor of Panther.


                                                   Marialyn Barnard, Justice




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