Christian v. Texas Employers Insurance Ass'n

679 S.W.2d 679
CourtCourt of Appeals of Texas
DecidedSeptember 26, 1984
DocketNo. 05-82-01406-CV
StatusPublished

This text of 679 S.W.2d 679 (Christian v. Texas Employers Insurance Ass'n) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Christian v. Texas Employers Insurance Ass'n, 679 S.W.2d 679 (Tex. Ct. App. 1984).

Opinions

STEWART, Justice.

We grant the motion for rehearing and withdraw our prior opinion for purposes of clarification. This is now our opinion.

This is a worker’s compensation case in which Texas Employers Insurance Association (carrier for Affiliated Food Stores, Inc.) filed suit to set aside the Industrial Accident Board’s award of compensation from Texas Employers to Charles Edward Christian. Texas Employers named Christian and Travelers Indemnity Company of Rhode Island (carrier for Cannon Protective Services, Inc.) as defendants, and Christian filed a cross-action against both carriers alleging dual employment with both Affiliated and Cannon. The trial court denied Travelers’ motion for summary judgment against Christian, which alleged that Christian was not eligible for worker’s compensation benefits because he was an independent contractor of its insured, Cannon; Travelers did not appeal that adverse ruling. On the other hand, the trial court granted Texas Employers’ motion for summary judgment against Christian, which alleged that, at the time of the injury, Christian was an employee of Cannon and not Affiliated; Cannon was the general employer and had the right to control the performance and details of Christian’s work; and no “new” employment relationship was created between Christian and Affiliated. The trial court severed Christian’s cross-action against Texas Employers and continued his cross-action against Travelers pending a ruling in this court. Both Christian and Travelers have perfected this appeal.

Travelers and Christian contend that a question of fact exists as to whether Christian was Affiliated’s own employee or its “borrowed servant” at the time of the injury. In addition, Christian contends that a question of fact exists as to whether he was an employee of both Cannon and Affiliated, simultaneously, when he was injured and, thus, entitled to recover under the dual employment theory. We hold that a fact issue exists as to whether, at the time of the injury, Christian was an employee of Affiliated or, in the alternative, its “special employee” under the borrowed servant doctrine. A consideration of the dual employment theory is not necessary to the disposition of this case. Accordingly, we reverse the judgment and remand the case for trial on the merits.

Affiliated entered into an oral agreement with Cannon Protective Services, Inc., wherein Cannon provided security guard services, surveillance, and undercover investigators to Affiliated for a fee. Pursuant to this agreement Cannon advertised for a truck driver to work as an undercover investigator. Christian responded to Cannon’s advertisement and successfully completed screening procedures for Cannon. Christian and Cannon then executed an agreement designating Christian as a “subcontractor” of Cannon, after which Christian was directed to go to Affiliated and to apply as a regular employee. Contingent upon being approved by Affiliated, Christian was to perform all the regular activities of a truck driver for that company and, additionally, he was to observe and report the actions and attitudes of other employees of Affiliated and send written reports to Cannon for a fee of $18.00 per report. According to their agreement, Cannon had the right to discontinue Christian’s employment or to reassign him to another employer at any time.’

Following Cannon’s directions, Christian applied for employment with Affiliated. He successfully completed the regular employment examinations and interviews of Affiliated and was hired as a truck driver in March, 1979. In his capacity as truck driver, Christian made deliveries of food products to various grocery stores and was paid an hourly wage, with federal and social security benefits withheld, the same as any other employee of Affiliated. Affiliated paid Christian directly for his work as truck driver and did not distinguish Christian’s employment in this capacity from that of any other employee. He received employee health and vacation benefits and was under the same supervision and control as any other Affiliated truck driver. [681]*681According to Christian, Affiliated had the right to fire him at any time.

Regarding Christian’s surveillance work, Affiliated paid Cannon $800 per month for providing surveillance through Christian’s services. When Christian and Cannon met to discuss the undercover operation, representatives of Affiliated would often attend and instruct Christian on who and what to observe. Cannon supplied the paper tablets and stamped envelopes for Christian’s reports and gave him directions on general policies of surveillance and the types of things to write in the report.

At the time of his injury on September 24, 1980, Christian was attempting to unload food products from his truck at one of Affiliated’s grocery stores. He stated in his deposition that he was not conducting surveillance at that time because he could not hear or understand the language other workers were speaking. After Christian was injured, Affiliated contacted Cannon and requested that Cannon terminate Christian’s surveillance. When Cannon instructed Christian to resign his job with Affiliated, Christian replied that he liked the job and intended to continue his employment with Affiliated in spite of Cannon’s directive. Christian continued to work for Affiliated for several days until he reported to a clinic recommended by Affiliated to have his injury treated. After the doctor released him for work, Christian attempted to return to Affiliated, but Affiliated refused to allow him to work.

The evidence before the trial court included answers to interrogatories, admissions, exhibits, and depositions from Christian; Frank E. Weise, representing Affiliated; Billy Ray Cannon, representing Cannon Protective Services; and Dr. Sarris, who treated Christian for his injury. Under TEX.R.CIV.P. 166-A the party moving for summary judgment has the burden of proving that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Smiley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972). Thus, in order to grant summary judgment to Texas Employers, the evidence must show that, as a matter of law, Christian was not Affiliated’s own employee or Affiliated’s borrowed servant.

We must examine the relationship between the parties and determine who had the right to control Christian’s work in order to ascertain Christian’s status as a workman. Goodnight v. Zurich Insurance Co., 416 S.W.2d 626 (Tex.Civ.App.—Dallas 1967, writ ref’d n.r.e.). All parties agree that, when a question arises as to which of two employers is liable for worker’s compensation benefits, the Texas courts have adopted the special employee or borrowed servant doctrine. Thate v. Texas & Pacific Railway Co., 595 S.W.2d 591 (Tex.Civ.App.—Dallas 1980, writ dism’d); Associated Indemnity Co. v. Hartford Accident & Indemnity Co., 524 S.W.2d 373 (Tex.Civ.App.—Dallas 1975, no writ).

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Related

Thate v. Texas & Pacific Railway Co.
595 S.W.2d 591 (Court of Appeals of Texas, 1980)
United States Fidelity & Guaranty Co. v. Goodson
568 S.W.2d 443 (Court of Appeals of Texas, 1978)
Swilley v. Hughes
488 S.W.2d 64 (Texas Supreme Court, 1972)
Wise v. Texas Employers Insurance Association
402 S.W.2d 228 (Court of Appeals of Texas, 1966)
Associated Indemnity Co. v. Hartford Accident & Indemnity Co.
524 S.W.2d 373 (Court of Appeals of Texas, 1975)
Mercury Life and Health Company v. De Leon
314 S.W.2d 402 (Court of Appeals of Texas, 1958)
Goodnight v. Zurich Insurance Company
416 S.W.2d 626 (Court of Appeals of Texas, 1967)
Producers Chemical Company v. McKay
366 S.W.2d 220 (Texas Supreme Court, 1963)

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Bluebook (online)
679 S.W.2d 679, Counsel Stack Legal Research, https://law.counselstack.com/opinion/christian-v-texas-employers-insurance-assn-texapp-1984.