     Case: 11-10981     Document: 00511878512         Page: 1     Date Filed: 06/06/2012




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                            June 6, 2012

                                     No. 11-10981                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



JOSHUA DAVID POYNOR,

                                                  Plaintiff-Appellee
v.

MITSUBISHI POWER SYSTEMS AMERICAS, INCORPORATED,

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 2:09-CV-308


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Joshua David Poynor lost portions of two fingers when a propeller blade
on a wind turbine he was servicing smashed his hand. He sued Mitsubishi
Power Systems, alleging that the company’s negligence caused the injury. The
issue presented in this appeal is whether Poynor was a “borrowed employee” of
Mitsubishi at the time of the accident. The answer to that question determines




        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 11-10981

which employer pays. A jury found that Mitsubishi must pay because it was
negligent and had not borrowed Poyner from his employer. We AFFIRM.
                                     FACTS
      Mitsubishi was hired to repair and maintain a number of wind turbines
in the Texas panhandle. This work included periodic washing of the turbines.
Mitsubishi hired a sub-contractor, Lone Star Line Services, to perform that task.
Poynor was one of Lone Star’s employees.
      On August 12, 2009, Poynor was ordered by his supervisor to assist a
Mitsubishi technician with rotating a turbine’s blades. The blades had to be
adjusted before Lone Star could safely clean the turbine. At some point – the
exact moment is unclear – Poynor’s hand was crushed by the machinery. He lost
parts of two of his fingers.
      Based on diversity of citizenship, Poynor filed a negligence action under
Texas law against Mitsubishi in the United States District Court for the
Northern District of Texas. He alleged that the Mitsubishi technician released
the blade brakes in violation of the safety procedures. A jury found Mitsubishi
to be liable. It specifically found that Poynor was not working as a borrowed
employee of Mitsubishi. Mitsubishi moved for judgment as a matter of law or,
in the alternative, for a new trial. The district court denied these requests.
From these denials, Mitsubishi appeals.
                                 DISCUSSION
      We review a district court’s denial of a motion for judgment as a matter of
law de novo. Bohnsack v. Varco, L.P., 668 F.3d 262, 272 (5th Cir. 2012). This
type of motion “should be granted if there is no legally sufficient evidentiary
basis for a reasonable jury to find for a party.” Id. To see if there is enough
support, “[w]e must review all of the evidence in the record, draw all reasonable
inferences in favor of the nonmoving party, and may not make credibility
determinations or weigh the evidence.” Phillips v. Leggett & Platt, Inc., 658 F.3d

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452, 455 (5th Cir. 2011) (quotation marks and citation omitted). The evidence
that favors the moving party that the jury is not required to believe must be
disregarded. Caboni v. General Motors Corp., 398 F.3d 357, 359 (5th Cir. 2005).
From this evidence, a jury may draw reasonable inferences “and those inferences
may constitute sufficient proof to support a verdict.” Wackman v. Rubsamen,
602 F.3d 391, 399 (5th Cir. 2010) (quotation marks and citation omitted). “We
must not substitute for the jury’s reasonable factual inferences other inferences
that we may regard as more reasonable.” McBeth v. Carpenter, 565 F.3d 171,
176 (5th Cir. 2009) (quotation marks and citation omitted).
      We review “the denial of a motion for new trial for a clear showing of abuse
of discretion.” Garriott v. NCsoft Corp., 661 F.3d 243, 247 (5th Cir. 2011). This
standard is more deferential than our review of a denial of a motion for
judgment as a matter of law. Wackman, 602 F.3d at 399. As a consequence, our
review of a denial of a motion for new trial “is subsumed in our analysis of the
denial of a motion for judgment as a matter of law.” Id.
      A suit for personal injuries in tort against an employer is not allowed when
the workers compensation regime provides a remedy. See Exxonmobil Corp. v.
Kirkendall, 151 S.W.3d 594, 599 (Tex. App.—San Antonio 2004, pet. denied).
“Recovery of workers’ compensation benefits is the exclusive remedy” in that
situation. Tex. Lab. Code § 408.001(a). Much can turn on whether a person is
a company’s employee. The complication in our case is that “a general employee
of one employer may, in a particular situation, become the borrowed servant of
another.” Tex. Prop. & Cas. Guar. Ass’n v. Nat’l Am. Ins. Co., 208 S.W.3d 523,
542 (Tex. App.—Austin 2006, pet. denied).
      To determine whether an employee was a borrowed servant at the time of
the accident, Texas courts inquire into which employer had the right to control
the employee. Id. at 542-43. “Under the right-of-control test, an injured worker
is held to be the employee of the employer who had the right of control over the

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details of the work at the time of the injury.” Phillips v. Am. Elastomer Prods.,
L.L.C., 316 S.W.3d 181, 187 (Tex. App.— Houston [14th Dist.] 2010, pet. denied).
      The parties agree that Lone Star was Poynor’s general employer.
Mitsubishi asserted, but Poyner denied, that it had the right to control Poynor
at the moment of injury. The jury had to make a decision based on the facts and
circumstances presented at trial. See Tex. Prop., 208 S.W.3d at 543-44.
      The relevant portions of the record support the conclusion that Lone Star
retained control of Poynor at the time of the accident. Testimony established
that Poynor entered the turbine at the direction of Lone Star in order to assist
a Mitsubishi technician in moving the blades. The blades had to be moved to
allow Lone Star to clean the turbine. The record also demonstrates that Poynor
continued to answer to his Lone Star supervisor throughout the day.
      While there is other evidence that could favor Mitsubishi, the jury is
entitled to use its reasonable judgment to reach a rational conclusion based upon
the evidence presented. See Brown v. Parker Drilling Offshore Corp., 410 F.3d
166, 182-83 (5th Cir. 2005). A motion for judgment as a matter of law cannot be
granted simply because the evidence could support factual inferences different
than those found by the jury.
      AFFIRMED.




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