Opinion
NO. 01-15-01075-CV
04-25-2017
RUBEN GUEVARA, Appellant v. WCA WASTE CORPORATION, WASTE CORPORATION OF TEXAS, L.P. AND EROL MAURICIO GONZALEZ, Appellees
On Appeal from the 270th District Court Harris County, Texas
Trial Court Case No. 2015-27521
MEMORANDUM OPINION
An employee of a temporary staffing agency, Ruben Guevara, was injured while working for a waste disposal company, Waste Corporation of Texas, L.P., as a helper on a garbage truck driven by Waste Corp.'s employee, Erol Mauricio Gonzales. Guevara sued Waste Corp. and Gonzales for negligence and gross negligence. In response, Waste Corp. and Gonzales filed a plea to the jurisdiction, arguing that Guevara's claims were barred by the exclusive remedy provision of the Texas Workers' Compensation Act. The trial court sustained the plea and dismissed Guevara's claims.
On appeal, Guevara contends that (1) Waste Corp. and Gonzales failed to meet their burden of proving that Waste Corp. was Guevara's employer and a subscriber of workers' compensation insurance, (2) a plea to the jurisdiction was an improper procedure for determining whether his claims were barred by the TWCA's exclusive remedy provision, and (3) the trial court abused its discretion by implicitly denying his motion for continuance to conduct additional discovery. We affirm.
Factual Background
As their names suggest, Waste Corp. is a waste disposal company, and United Staffing Management LLC is a temporary staffing agency. Waste Corp. and United entered into an agreement by which United provided Waste Corp. with "qualified temporary employees . . . to perform waste collection and related services . . . ."
Under the agreement, United selected the employees, verified workforce eligibility, maintained personnel and payroll records, calculated wages due from information provided by Waste Corp., withheld and remitted necessary taxes, issued checks for wages, and removed the employees at Waste Corp.'s request. United was required to have workers' compensation insurance for the temporary employees and to name Waste Corp. as an insured under the policy.
The agreement provided that the temporary employees were and would remain United employees and were not entitled to participate in any of Waste Corp.'s employee benefits plans. The agreement further provided that the temporary employees would perform under Waste Corp.'s "direction, supervision, and control" and that Waste Corp. would "undertake to provide all information, instructions, training or supervision customary or necessary to the performance of the duties assigned."
In his uncontroverted affidavit, Waste Corp.'s Regional Vice President, Matt Graham, stated that workers provided by United reported to Waste Corp.'s site and that Waste Corp. directed and controlled the details of their work, determined their hours and work schedules, set their service routes, and verified their time. Graham further stated that Waste Corp. could, in its discretion, directly hire United workers for permanent positions and terminate them from their temporary assignments.
Pursuant to the agreement, United assigned Guevara to work for Waste Corp. as a driver's helper, assisting garbage truck drivers on residential collection routes. Graham averred that driver-helpers like Guevara reported to Waste Corp. drivers and received on-the-job training from them. Graham further stated that, while working for Waste Corp., Guevara reported directly to Waste Corp.'s facility at the beginning and end of each work shift and was directed by the drivers whom he assisted. According to Graham, Guevara identified himself as "Carlos Ramirez" and was known to Waste Corp. by that name.
A few weeks into the job, Guevara was injured while working as a helper for a truck driver on a residential collection route. The truck was owned by Waste Corp. and was driven by a permanent Waste Corp. employee, Erol Mauricio Gonzales.
Procedural Background
Guevara sued Waste Corp. and Gonzales in state district court. Guevara asserted claims for negligence and gross negligence. Waste Corp. and Gonzales asserted as an affirmative defense the exclusive remedy provision of the TWCA. They also filed a plea to the jurisdiction, arguing that the Texas Department of Insurance, Division of Workers' Compensation had exclusive jurisdiction over Guevara's claims. The evidence attached to their plea included (1) an affidavit from Graham, and (2) an affidavit of WCA Waste Corporation Director of Risk Management, Melissa Valerio, who explained Waste Corp.'s workers' compensation insurance.
Guevara also sued WCA Waste Corporation.
Before responding to the plea, Guevara filed traditional and no-evidence motions for partial summary judgment on Waste Corp.'s and Gonzales's exclusive remedy defense. Guevara argued that Waste Corp. was not his employer, that Waste Corp. did not provide workers' compensation insurance for United employees, and that Waste Corp. identified him as a United employee when it reported his injuries to its workers' compensation insurer.
The evidence attached to Guevara's traditional-summary-judgment motion included (1) the agreement between Waste Corp. and United; (2) a workers' compensation injury report on Guevara's injury submitted by Waste Corp. to its workers' compensation insurer; (3) a letter from counsel for a local hospital stating that a Waste Corp. representative had advised the hospital that Guevara (as opposed to "Carlos Ramirez") was not a Waste Corp. employee; (4) a letter from Guevara's counsel to Waste Corp.'s claims adjuster, Emma Williams, requesting a copy of Waste Corp.'s workers' compensation insurance policy; (5) a set of United checks for "Carlos Ramirez"; and (6) a certificate of training issued by United to "Carlos Ramirez." The letter from the hospital, the set of checks, and the certificate of training were never authenticated.
Guevara also responded to Waste Corp.'s and Gonzales's plea. In his response, Guevara made substantially the same arguments as he did in his summary-judgment motions, and he stated that the trial court's analysis was "guided by" the exclusive remedy provision. He did not object that a plea to the jurisdiction was an improper procedure for determining whether his claims were barred.
After the parties briefed the merits of the plea and summary-judgment motions, Guevara filed an unverified, one-page motion for a continuance to conduct additional discovery. The motion was filed over four months after Waste Corp. and Gonzales filed their plea and over three weeks after Guevara filed his no-evidence motion for summary judgment.
Waste Corp. and Gonzales responded to Guevara's motion, arguing that it should be denied because it failed to show that the discovery sought was material. Guevara never set his motion for continuance for a hearing and never obtained an explicit ruling on it from the trial court.
The trial court sustained Waste Corp.'s and Gonzales's plea to the jurisdiction and dismissed Guevara's claims for lack of subject-matter jurisdiction. Guevara appealed.
Evidence of Exclusive Remedy Defense
We begin by considering Guevara's third issue, in which he argues that the trial court erred in granting the plea to the jurisdiction because Waste Corp. and Gonzales failed to meet their burden of proving that Guevara's claims were barred by the TWCA's exclusive remedy provision. Specifically, Guevara contends that Waste Corp. and Gonzales failed to prove that Waste Corp. was (1) Guevara's employer and (2) a subscriber of workers' compensation insurance.
A. Applicable law and standard of review
The TWCA establishes "the exclusive remedy for non-intentional, 'work-related injuries' of an employee, and exempts the employer, its agents, and its employees from common-law liability claims based on negligence or gross negligence." Warnke v. Nabors Drilling USA, L.P., 358 S.W.3d 338, 343 (Tex. App.—Houston [1st Dist.] 2011, no pet.). Under the TWCA's exclusive remedy provision, "[r]ecovery of workers' compensation benefits is the exclusive remedy of an employee covered by workers' compensation insurance coverage . . . against the employer or an agent or employee of the employer for the death of or a work-related injury sustained by the employee." TEX. LAB. CODE § 408.001(a).
The only exception to the exclusive remedy provision is when an employee's death "was caused by an intentional act or omission of the employer or by the employer's gross negligence." TEX. LAB. CODE § 408.001(b).
"The exclusive remedy provision is an affirmative defense that the defendant must plead and prove." Warnke, 358 S.W.3d at 343. To demonstrate that a claim is barred by the exclusive remedy provision, the defendant must show that the injured worker was (1) its employee at the time of the work-related injury and (2) covered by the defendant's workers' compensation insurance policy. Id. If the defendant proves these two elements, the employee's claims of work-related negligence and gross negligence are barred, and the employee's exclusive remedy lies with the TWCA. Id.; Phillips v. Am. Elastomer Prods., L.L.C., 316 S.W.3d 181, 186 (Tex. App.—Houston [14th Dist.] 2010, pet. denied); see TEX. LAB. CODE § 408.001(a).
Under the TWCA, an employee may have more than one employer, and each employer who subscribes to workers' compensation insurance may raise the exclusive remedy provision as a bar to the employee's claims. Port Elevator-Brownsville v. Casados, 358 S.W.3d 238, 242 (Tex. 2012).
The standard for determining whether to grant or deny a plea to the jurisdiction "generally mirrors that of a summary judgment under Texas Rule of Civil Procedure 166a(c)." Miranda, 133 S.W.3d at 228. If the evidence creates a fact issue, the trial court cannot grant the plea, and the fact issue will have to be resolved by the fact finder. Id. at 227-28. But if the evidence is undisputed or fails to raise a fact issue, the trial court rules on the plea as a matter of law. Id. at 228.
"We review a trial court's ruling on a plea to the jurisdiction de novo." Hand & Wrist Ctr. of Houston, P.A. v. SGS Control Servs., Inc., 409 S.W.3d 743, 748 (Tex. App.—Houston [1st Dist.] 2013, no pet.). When, as here, we must consider evidence to resolve the issue raised, "we 'take as true all evidence favorable to the nonmovant' and 'indulge every reasonable inference and resolve any doubts in the nonmovant's favor.'" Id. (quoting City of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex. 2009).
B. Sufficiency of evidence
We first determine whether the evidence proved as a matter of law that Waste Corp. was Guevara's employer within the meaning of the TWCA. Casados, 358 S.W.3d at 242.
As noted above, under the TWCA, an employee may have more than one employer, and each employer who subscribes to workers' compensation insurance may raise the exclusive remedy provision as a bar to the employee's claims. Id. Thus, if an employee of a temporary staffing agency is assigned to work for a client company and the client company has the right to control the manner and details of the employee's work, then the employee is the employee of both the temporary staffing agency and the client company. Id. If the employee is injured while working under the client company's direct supervision, he "can pursue workers' compensation benefits from either (and be subject to the exclusive remedy provision as to both) if each provided coverage." Mosqueda v. G & H Diversified Mfg., Inc., 223 S.W.3d 571, 582 (Tex. App.—Houston [14th Dist.] 2007, pet. denied).
To determine whether a client company had the right to control the manner and details of the employee's work, we consider traditional indicia, such as the terms of the contract between the client company and temporary staffing agency and the extent to which the client company actually controlled the details of the work that gave rise to the injury. W. Steel Co. v. Altenburg, 206 S.W.3d 121, 123 (Tex. 2006) (per curiam); Exxon Corp. v. Perez, 842 S.W.2d 629, 630 (Tex. 1992) (per curiam). "The type of control normally exercised by an employer includes determining when and where to begin and stop work, the regularity of hours, the amount of time spent on particular aspects of work, the tools and appliances used to perform the work, and the physical method or manner of accomplishing the end result." Phillips v. Am. Elastomer Prods., L.L.C., 316 S.W.3d 181, 187 (Tex. App.—Houston [14th Dist.] 2010, pet. denied).
Considering traditional indicia, we hold that the Waste Corp. and Gonzales met their burden of proving as a matter of law that Waste Corp. was Guevara employer's at the time of his injury. The agreement between United and Waste Corp. provided that temporary employees like Guevara would perform under Waste Corp.'s "direction, supervision, and control" and that Waste Corp. would "undertake to provide all information, instructions, training or supervision customary or necessary to the performance of the duties assigned." See Mosqueda, 223 S.W.3d at 578-80 (holding that manufacturer was employer of temporary worker recruited by temporary employment agency in part because manufacturer's agreement with employment agency gave manufacturer right to direct and control details of work performed). In his uncontroverted affidavit, Graham stated that Waste Corp. directed and controlled the details of Guevara's work, determined his hours and work schedule, set his service routes, and verified his time. Graham further stated that, while working for Waste Corp., Guevara reported directly to Waste Corp.'s facility at the beginning and end of each work shift and was directed by the drivers whom he assisted.
The undisputed evidence shows that Guevara was injured while working for Waste Corp. at the direction of Waste Corp. on a garbage truck that was owned by Waste Corp. and driven by an employee of Waste Corp. Thus, for purposes of the TWCA, Waste Corp. met its burden of proving that it was Guevara's employer, and Gonzales met his burden of proving that he was Waste Corp.'s employee. See TEX. LABOR CODE § 408.001(a) (recovery of workers' compensation benefits is exclusive remedy of employee covered by workers' compensation insurance coverage against employer or agent or employee of employer); City of Bellaire v. Johnson, 400 S.W.3d 922, 924 (Tex. 2013) (per curiam) (holding that garbage truck helper provided to city by staffing agency was city's employee for purposes of TWCA); Warnke, 358 S.W.3d at 345 (holding that TWCA barred employee's negligence claim against coworker).
We next determine whether the evidence proved as a matter of law that Waste Corp. subscribed to workers' compensation insurance. Casados, 358 S.W.3d at 242.
Guevara contends that Waste Corp. and Gonzales failed to prove that Waste Corp. was a subscriber because they failed to present Waste Corp.'s workers' compensation insurance policy. According to Guevara, Waste Corp. and Gonzales had to prove that Waste Corp. had "explicit coverage" by producing an actual policy. We disagree.
We note that the record shows that Waste Corp. and Gonzales did, in fact, produce an authenticated copy of Waste Corp.'s workers' compensation insurance policy, albeit not as an attachment to their plea to the jurisdiction. Instead, they produced the policy as an attachment to their response to Guevara's traditional and no-evidence motions for partial summary judgment. The record shows that Guevara was also provided a copy of the policy in response to a subpoena served on the third-party administrator that administers state workers' compensation claims for WCA Waste Corporation and Waste Corp.
Waste Corp. and Gonzales were not required to produce the actual policy to prove Waste Corp. had coverage; they were permitted to prove Waste Corp.'s subscriber status with other evidence, such as affidavits. See Warnke, 358 S.W.3d at 344 (holding that employer satisfied its burden to demonstrate subscriber status and triggered TWCA's exclusive remedy provision by providing affidavit from carrier stating that carrier provided workers' compensation insurance to employer at time of accident); Martinez v. H.B. Zachry Co., 976 S.W.2d 746, 748 (Tex. App.—Houston [1st Dist.] 1998, pet. denied) (holding that affidavit of employer's claims manager swearing that document attached to affidavit was true and correct copy of information page of workers' compensation policy covering injured employee at time of accident was sufficient to carry employer's burden to prove its subscriber status); see also Price v. Uni-Form Components Co., No. 14-11-00902-CV, 2012 WL 2929493, at *3-4 (Tex. App.—Houston [14th Dist.] July 19, 2012, no pet.) (mem. op.) (holding that employer was not required to produce copy of policy to prove subscriber status when instead employer produced copy of certificate of insurance reflecting that workers' compensation insurance covered employees on date of employee's injury); cf. TEX. R. CIV. P. 166a(f) ("Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.").
To prove its subscriber status, Waste Corp. presented the affidavit of Melissa Valerio. Valerio is the Director of Risk Management of WCA Waste Corporation. In her affidavit, Valerio stated that she had "personal knowledge of the workers' compensation insurance coverage available to WCA Waste Corporation and Waste Corporation of Texas, L.P." She further stated that, on the day of Guevara's injury, "WCA Waste Corporation and Waste Corporation of Texas, L.P. were both insured under a Workers' Compensation and Employers' Liability Insurance policy issued by New Hampshire Insurance Company." Valerio stated that the "policy covers the provision of Texas Workers' Compensation benefits on a form issued consistent with the requirements of the Texas Department of Insurance." Guevara never objected to Valerio's affidavit.
Once Waste Corp. and Gonzales presented Valerio's affidavit, the burden shifted to Guevara to create a fact issue on whether Waste Corp. was a subscriber. Price, 2012 WL 2929493, at *4. Guevara failed to do so. Nor did Guevara present evidence rebutting Valerio's affidavit testimony. Accordingly, we hold that Waste Corp. satisfied its burden of proving its subscriber status. See Warnke, 358 S.W.3d at 344; Martinez, 976 S.W.2d at 748; Price, 2012 WL 2929493, at *3-4. We overrule Guevara's third issue.
Propriety of Plea to the Jurisdiction
We next consider Guevara's first issue, in which he contends that a plea to the jurisdiction was not a proper procedure for determining whether his claims were barred by the TWCA's exclusive remedy provision. According to Guevara, because the exclusive remedy provision is an affirmative defense, the issue of whether his claims were barred was not jurisdictional and therefore should have been resolved through either summary judgment or jury submissions. Waste Corp. responds that Guevara failed to preserve error because he never made this complaint to the trial court. We agree.
Guevara never objected that a plea to the jurisdiction was an improper procedure for determining whether his claims were barred. Nor did he otherwise obtain a ruling from the trial court on the propriety of using a plea to resolve such an issue. TEX. R. APP. P. 33.1(a). In fact, the record shows the opposite—that Guevara agreed that the issue was jurisdictional and that a plea was the right way to resolve it. In his response to the plea, Guevara stated that the trial court's analysis was "guided by" the exclusive remedy provision and that Waste Corp. and Gonzales would have to prove that Waste Corp. was Guevara's employer to show that the trial court lacked jurisdiction.
Because Guevara did not argue that the plea was an improper procedure for asserting the exclusive remedy provision, for purposes of this appeal, we will treat it as if it were a jurisdictional issue. And because we treat the issue as jurisdictional, we hold that a plea to the jurisdiction was a proper procedure for resolving it. Accordingly, we overrule Guevara's first issue.
We note that, to the extent Guevara contends the issue should have been resolved through a motion for summary judgment, both the parties and the trial court appear to have treated the plea as if it were such a motion. See Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004) (acknowledging that standard applicable to jurisdictional pleas "generally mirrors that of a summary judgment under Texas Rule of Civil Procedure 166a(c)"). The parties' filings were supported by verified affidavits and other summary-judgment evidence, and the timing of the filings, notices, and hearing conformed to the rules governing summary judgments. See TEX. R. CIV. P. 166a(c).
Denial of Motion for Continuance
Finally, we consider Guevara's second issue, in which he contends that the trial court abused its discretion by implicitly denying his motion to continue the hearing on the plea to the jurisdiction. Waste Corp. and Gonzales respond that the trial court's implicit ruling was proper because Guevara's motion did not comply with the Rules of Civil Procedure.
Under the Rules of Civil Procedure, a motion for continuance must be verified or supported by an affidavit. TEX. R. CIV. P. 251, 252. If the movant alleges that he needs a continuance to conduct additional discovery, the movant must state that the discovery is material and show why it is material. TEX. R. CIV. P. 252. The movant must show that he used due diligence to obtain the discovery and explain why he was nevertheless unable to do so. Id. If the movant alleges that he needs witness testimony, he must state the name and residence of the witness and what he expects the testimony to prove. Id. And the movant must state that the continuance is not sought for delay only, but that justice may be done. Id.
We review a trial court's ruling on a motion for continuance for an abuse of discretion. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004). "A trial court abuses its discretion when it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law." Id. If a motion for continuance did not comply with the rules, we generally presume that the trial court did not abuse its discretion in denying it. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986); see Welcome v. Tex. Roadhouse, Inc., No. 01-12-00317-CV, 2014 WL 7335183, at *2 (Tex. App.—Houston [1st Dist.] Dec. 23, 2014, no pet.) (mem. op.) ("If the motion for continuance is not verified or supported by affidavit, appellate courts will presume that the trial court did not abuse its discretion by denying the motion.").
Guevara moved to continue the hearing on the plea to the jurisdiction so he could conduct additional discovery. The substantive portion of Guevara's motion stated, in full:
Discovery needs to be conducted in order to properly respond to Defendants' Plea to the Jurisdiction. Written discovery, depositions of corporate representatives and fact witnesses are crucial to Mr. Guevara's ability to respond to Defendant's Plea to the Jurisdiction. Without the opportunity to conduct meaningful discovery that is directly related to the issues contained in the Plea to the Jurisdiction, Mr. Guevara would be severely prejudiced by not being able to respond to the Plea to the Jurisdiction with evidence that will likely show he was not an employee of Defendant WCA Waste Corporation.
Guevara's motion was not verified or supported by an affidavit. TEX. R. CIV. P. 251, 252. It did not describe the specific discovery sought or show why it was material. It did not show that Guevara had used due diligence to obtain the discovery or explain why he was unable to do so. It did not state who the corporate representatives and other witnesses were or what Guevara expected to prove with their testimony. And it did not state that the continuance was not sought for delay only, but so that justice may be done. TEX. R. CIV. P. 252. Guevara's motion failed to comply with the rules.
Guevara filed suit on May 11, 2015. Waste Corp. and Gonzales filed their plea on June 22, 2015. And Guevara moved for a continuance on October 26, 2015. The record contains no evidence that Guevara sought discovery in the interim.
Because Guevara's motion did not comply with the rules, we presume that the trial court did not abuse its discretion in denying it. Villegas, 711 S.W.2d at 626; Welcome, 2014 WL 7335183, at *2. Accordingly, we overrule Guevara's second issue.
Conclusion
We affirm the trial court's dismissal order.
Harvey Brown
Justice Panel consists of Chief Justice Radack and Justices Brown and Lloyd.