Palmer v. Flaggman

United States Court of Appeals,

Fifth Circuit.

No. 93-1955.

Thomas E. PALMER and Delores Palmer, Plaintiffs-Appellees,

v.

Paul D. FLAGGMAN, D.O., et al., Defendants,

and

Marcus NEWTON, D.O., et al., Defendants-Appellees,

v.

UNITED STATES of America, on Behalf of Dennis N. GRAHAM, D.O., Movant-Appellant.

Sept. 3, 1996.

Appeals from the United States District Court for the Northern District of Texas.

Before WISDOM, KING, and DUHÉ, Circuit Judges.

WISDOM, Circuit Judge:

In this case, we decide whether under Texas law, a federal employee who acts as the

"borrowed servant" of a private employer may simultaneously act within the scope of his federal

employment in such a way as to make him immune from suit under the Westfall Act. Because we

conclude that Texas law defining an individual's scope of employment is a separable inquiry from

Texas law regarding the ultimate liability of the individual's employer, we find that a federal employee

may obtain immunity under the Westfall Act, even while working as the borrowed servant of a

non-federal employer. We therefore REVERSE the decision of the district court and REMAND the

case for additional proceedings consistent with this ruling.

BACKGROUND

This case originated in a Texas state court as a medical malpractice action brought by the

plaintiffs-appellees, Thomas and Delores Palmer, against the defendant-appellant, Dr. Dennis Graham,

the defendant-appellee, Bedford-Northwest Community Hospital, Inc. ("NCH"), and several other

1
medical care providers. At the time of the alleged negligence, Dr. Graham was an active-dut y

commissioned officer in the United States Air Force, and was assigned to NCH to complete a

residency in orthopedic surgery. Dr. Graham's salary was paid by the Air Force, and, after the

completion of his residency, he was committed to serving an additional four years of active duty in

the military.

When Dr. Graham began his service at NCH, he personally entered into a contract with the

hospital which provided that he would "observe all rules and regulations of the hospital pertaining to

residents." In addition, the Air Force and NCH entered into a "Medical Residency Agreement,"

which provided that:

[A]lthough Fellow is an Air Force Officer, for the purposes of liability the Fellow is a servant
of the institution. This is because the Fellow will be performing duties under the exclusive
control and for the primary benefit of the institution. Therefore, the institution agrees to
provide, at its own expense, liability insurance in an amount that will satisfy all foreseen or
reasonably foreseeable claims made against the Fellow, as well as sufficient coverage to
reimburse the United States for any indemnification required under 10 U.S.C. 1089(f).1

In March 1993, pursuant to 28 U.S.C. § 2679(d)(2),2 the United States Attorney General

certified that Graham was acting within the scope of his federal employment at the time of the alleged

malpractice. The Attorney General then removed the case to federal court and substituted the United

States as party defendant.3 The United States then moved to dismiss the action on the grounds that

the Palmers had failed to file an administrative claim within two years of the incident, as required by

1
10 U.S.C. § 1089 is a portion of the Gonzalez Act, which provides immunity to military
medical personnel. As will be discussed in more detail later in the opinion, the protections of the
Gonzalez Act have been broadened by the Westfall Act, which was enacted after the Air Force
and NCH entered into the contract regarding Dr. Graham.
2
28 U.S.C. § 2679(d)(2) reads in relevant part:

Upon certification by the Attorney General that the defendant employee was acting
within the scope of his office or employment at the time of the incident out of
which the claim arose, any civil action or proceeding commenced upon such claim
in a state court shall be removed without bond at any time before trial by the
Attorney General to the district court of the United States ... and the United States
shall be substituted as the party defendant. This certification ... shall conclusively
establish scope of office or employment for purposes of removal.
3
Id.

2
28 U.S.C. § 2675(a).4

On September 16, 1993, the district court ruled that, under Texas law, Graham was not acting

within the course and scope of his federal employment. The district court therefore denied the United

States's motion to dismiss, ordered that Graham be reinstated as party defendant in place of the

United States, and remanded the action back to state court for lack of subject matter jurisdiction. The

United States filed a timely notice of appeal.

DISCUSSION

This court conducts a de novo review of an Attorney General's scope of employment

certification.5 We give no judicial deference to the Attorney General's findings.6 Nonetheless, the

burden o f proof lies with the plaintiff to show that the Attorney General's initial decision was

incorrect.7

To determine whether or not a federal employee was acting within the course and scope of

his employment, we apply the law of the state in which the alleged misconduct occurred.8 Therefore

we begin our analysis with the Texas Supreme Court's stated test for "scope of employment"

4
28 U.S.C. § 2675(a) reads in relevant part:

An action shall not be instituted upon a claim against the United States for money
damages for ... personal injury or death caused by the negligent or wrongful act or
omission of any employment of the Government while acting within the course and
scope of his employment unless the claimant shall have first presented the claim to
the appropriate Federal Agency....
5
Garcia v. United States, 88 F.3d 318, 320-21 (5th Cir.1996); Williams v. United States, 71
F.3d 502, 505 (5th Cir.1995); see also, Schrob v. Catterson, 967 F.2d 929, 936 n. 3 (3d
Cir.1992); McHugh v. University of Vermont, 966 F.2d 67, 72 (2d Cir.1992); Nadler v. Mann,
951 F.2d 301, 305 (11th Cir.1992); Hamrick v. Franklin, 931 F.2d 1209 (7th Cir.), cert. denied,
502 U.S. 869, 112 S.Ct. 200, 116 L.Ed.2d 159 (1991); S.J. & W. Ranch, Inc. v. Lehtinen, 913
F.2d 1538, 1543 (11th Cir.1990), cert. denied, 502 U.S. 813, 112 S.Ct. 62, 116 L.Ed.2d 37
(1991); Nasuti v. Scannell, 906 F.2d 802, 813 (1st Cir.1990).
6
Williams, 71 F.3d at 505-506.
7
Id.
8
Garcia, 62 F.3d 126, 127 (5th Cir.1995).

3
enunciated in Robertson Tank Lines, Inc. v. Van Cleave.9 According to Robertson, an employee acts

within the course and scope of his employment when his actions are: 1) within the general authority

given to him by his employer; 2) in furtherance of the master's business; and 3) for the

accomplishment of the object for which he is employed.10

Applying the Robertson test to the present case, it appears Dr. Graham was acting within the

course and scope of his employment with the Air Force. He was on active military duty in the United

States Air Force, and was ordered to enter into the NCH residency program. That residency program

furthered t he business of the Air Force by providing specialized training to its physician. By

completing his residency training, Dr. Graham was accomplishing the object of his employment by

obtaining the necessary training to serve as an orthopedic specialist for the Air Force at the end of

his residency.

Our inquiry is not so simple as the Robertson test, however. In this case, the agreements

entered into between the Air Force and NCH, and between Dr. Graham and NCH, give NCH full

control over Dr. Graham's actions in his residency. As such, Dr. Graham is the "borrowed servant"

of NCH, and the Air Force cannot be liable for his conduct.11

The appellees argue, and the district court agreed, that under Texas law, the scope of

employment inquiry also includes t his larger issue of control and ultimate liability. Appellees

therefore maintain that because the Air force did not retain control over Dr. Graham's activities at

NCH, Dr. Graham could not have been acting within the scope of his federal employment at the time

of the alleged misconduct, and is not eligible for immunity under the Westfall Act.

A. Federal Immunity Statutes

To analyze the appellees' argument, it is helpful to first examine the federal laws that relate

to Dr. Graham's employment. Three related federal immunity statutes bear on the resolution of this

9
468 S.W.2d 354 (Tex.1971).
10
Id. at 359.
11
Hilgenberg v. Elam, 145 Tex. 437, 198 S.W.2d 94, 95-96 (1946).

4
case: the Federal Torts Claims Act ("FTCA");12 the Medical Malpractice Immunity Act ("the

Gonzalez Act");13 and the Federal Employees Liability Reform and Tort Compensation Act of 1988

("the Westfall Act").14

The FTCA provides a remedy for persons injured by an employee of the Government who

was "acting within the course and scope of his office or employment, under circumstances where the

United States, if a private person, would be liable to the claimant in accordance with the law of the

place where the act or omission occurred."15 Thus, where the FTCA applies, the United States's

waiver of sovereign immunity is limited by the same defenses available to private citizens, including

the "borrowed servant" doctrine relevant in the present case.

The Gonzalez Act provides immunity to military medical personnel acting within the scope

of their employment.16 The Act provides this immunity to individual employees by requiring injured

plaintiffs to proceed against the United States under the FTCA.17

Finally, the Westfall Act was enacted in 1988 to amend the FTCA. It was intended to provide

absolute immunity to any federal employee acting within the "scope of his office or employment."18

Like the Gonzalez Act, it provides such immunity by making an action against the United States

under the FTCA the exclusive remedy for the injured party.19

In 1991, the Supreme Court examined the interaction between the Westfall Act, the Gonzalez

12
28 U.S.C. §§ 1346(b), 2671 et seq. (1988).
13
10 U.S.C. § 1089 (1988).
14
28 U.S.C. § 2679 (1988).
15
28 U.S.C. § 1346(b) (emphasis added).
16
10 U.S.C. § 1089(a).
17
Id.
18
28 U.S.C. § 2679 (emphasis added).
19
28 U.S.C. § 2679(b)(1).

5
Act, and the FTCA in United States v. Smith.20 That case presented a medical malpractice suit filed

in the Ninth Circuit against a military doctor stationed overseas. It was undisputed that the military

doctor acted within the course and scope of his federal employment at the time of the alleged

misconduct, thereby arguably giving him immunity the Westfall Act, and requiring the substitution

of the United States as the defendant and the continuation of the suit under the FTCA. An exception

to the FTCA, however, prevented the plaintiffs from obtaining recovery against the United States for

injuries sustained abroad.21 And at that time, the Ninth Circuit had also ruled that Gonzalez Act

immunity did not apply to torts committed overseas.22 This interplay between the statutes therefore

eliminated the plaintiffs' remedy. Seeking to avoid this result, the Ninth Circuit ruled that the Westfall

Act was not intended to apply to federal employees in situations where the FTCA precluded a remedy

against the United States.23

The Supreme Court reversed that decision, holding that the Westfall Act provided immunity

to the military doctor acting in the course and scope of his employment, even though the FTCA

exception precluded recovery for the plaintiffs.24 The Court reasoned that while section five of the

Westfall Act makes the FTCA the exclusive means of recovery for any federal employee acting within

the course and scope of his employment,25 section six of the Act provides that the corresponding

FTCA action "shall be subject to the limitations and exceptions applicable to those actions."26 This

language, coupled with the Westfall Act's express inclusion of exceptions to immunity, led the court

to its conclusion that "the required substitution of the United States as the defendant in tort suits

20
499 U.S. 160, 111 S.Ct. 1180, 113 L.Ed.2d 134 (1991).
21
Id. at 164, 111 S.Ct. at 1184.
22
Id. at 171, 111 S.Ct. at 1187-88.
23
United States v. Smith, 885 F.2d 650 (9th Cir.1989).
24
499 U.S. at 166, 111 S.Ct. at 1185.
25
28 U.S.C. § 2679(b)(1).
26
28 U.S.C. § 2679(d)(4) (emphasis added).

6
would sometimes foreclose a tort plaintiff's recovery altogether."27

The Smith Court further found that the limitations of Gonzalez Act could not be used to limit

Westfall Act immunity.28 The Court based this holding on its finding that the Westfall Act was

enacted as a means of adding to the immunity created by the Gonzalez Act, and its determination that

the Gonzalez Act was never intended to create rights in favor of malpractice plaintiffs.29

B. Smith's application to the present case

The Supreme Court's decision in Smith affects the present case in two ways. First, Smith's

discussion of the Gonzalez Act indicates that the district court in this case erroneously used the

limitations of that Act as a justification for finding that the Dr. Graham did not act in the scope of his

federal employment.30 The district court found that the Gonzalez Act applied because it was

expressly mentioned in the contract between NCH and the Air Force.31 Yet, the contract, which

pre-dated the enactment of the Westfall Act, merely serves to allocate liability between the United

States and the NCH. It has no bearing on which immunity statute applies to Dr. Graham, who sought

substitution in this case under the more expansive Westfall Act.32 Thus, because the protections of

the Gonzalez Act have been included in, and surmounted by the Westfall Act, the limitations of the

Gonzalez Act are immaterial to Dr. Graham's immunity.33

Second, Smith's discussion of the interaction between Westfall Act immunity and "exceptions"

to liability under the FTCA guides this court in its treatment of the possible application of the

"borrowed servant" doctrine in this case. The "borrowed servant" doctrine is not an express

27
Smith, 499 U.S. at 166, 111 S.Ct. at 1185.
28
499 U.S. at 172, 111 S.Ct. at 1188.
29
499 U.S. at 172, 111 S.Ct. at 1188.
30
Order of the District Court at 9.
31
Order of the District Court at 9.
32
Notice of Removal at 2.
33
Smith, 499 U.S. at 172, 111 S.Ct. at 1188.

7
"exception" to the FTCA that would prevent the plaintiffs from seeking a remedy against the United

States. Instead, because the FTCA allows a plaintiff to recover against the United States only "to the

same extent as a private individual in like circumstances,"34 the "borrowed servant" doctrine could

conceivably be a limitation on the United States's waiver of sovereign immunity.35 Because FTCA

actions brought pursuant to the Westfall Act are "subject to the limitations and exceptions [of the

FTCA],"36 a federal employee act ing within the course and scope of his federal employment may

therefore still retain Westfall Act immunity, even when a different state tort liability provision will

ultimately prevent the plaintiff from recovering against the United States.37

Thus, we must now determine whether under Texas state law, the scope of employment

inquiry is separable from the control inquiry and the ultimate issue of liability. Under the reasoning

of Smith, if the two issues are separable, the "borrowed servant" doctrine will not prevent Dr. Graham

from being within the "course and scope of his employment." If this is the case, Dr. Graham is

entitled to Westfall Act immunity, and the United States is the appropriate defendant. On the other

hand, if the two issues are not separable, then Dr. Graham could not have acted within the scope of

his federal employment and simultaneously have acted as the borrowed servant of NCH. As such,

Dr. Graham would not be entitled to Westfall Act immunity, and was properly re-substituted as

defendant.38

C. Texas respondeat superior law

Understandably, the Texas state law on this issue is sparse. The Westfall Act creates a unique

34
28 U.S.C. § 2674.
35
28 U.S.C. § 2674. See also Ward v. Gordon, 999 F.2d 1399, 1402 (9th Cir.1993). We use
the word "conceivably" at this point, because we will address the exact nature of the Texas
"borrowed servant" doctrine later in this opinion.
36
28 U.S.C. § 2679(d)(4); Smith, 499 U.S. at 166, 111 S.Ct. at 1185.
37
For a similar result, see Ward, 999 F.2d at 1402.
38
Note that even if Dr. Graham is resubstituted as defendant, the federal court must retain
jurisdiction over the case, and may not remand it to the Texas state court in which it originated.
Garcia v. U.S., 88 F.3d at 327 (5th Cir.1996).

8
situation in which the parties have an interest in proving that an employee acted within the scope of

his or her employment, without regard for the ultimate issue of the employer's liability. In contrast,

the model tort case answers the scope of employment issue only in the context of assigning liability.

Thus, Texas cases which address course and scope of employment are generally cases in

which the tortfeasor has only one potential employer.39 In contrast, Texas cases involving two

"employers" generally resolve only the issue of which employer had "control" over the tortfeasor, and

hence the liability through the "borrowed servant" doctrine.40 Because answering the control question

assigns the liability in these cases, the Texas courts have not elaborated on whether the tortfeasor was

also within the scope of the non-liable defendant's employment, or whether a tortfeasor is legally able

to act simultaneously within the scope of employment of two defendants where only one is ultimately

liable.

Because Texas courts have not directly addressed this issue, we must decide it as we believe

the Texas Supreme Court would have decided it, if confronted with the issue directly.41 In so doing,

we look at all available data, including related case law, Restatements of Law, treatises, and other

commentary, keeping in mind that we must reach the result which we believe the Texas court would

be most likely to reach.42

The appellees have several arguments in support of their position that the Robertson test for

course and scope of employment also includes the ultimate issue of liability. First, they assert that

the Westfall Act's scope of employment determination is governed by Texas respondeat superior

39
Garcia, 88 F.3d at 320-21; Robertson, 468 S.W.2d at 359; London v. Texas Power & Light
Co., 620 S.W.2d 718, 720 (Tex.Civ.App.1981).
40
J. Robinson Sons, Inc. v. Wigart, 431 S.W.2d 327, 330 (Tex.1968), overruled on other
grounds, Sanchez v. Schindler, 651 S.W.2d 249 (Tex.1983); Hilgenberg, 145 Tex. 437, 198
S.W.2d 94 (Tex.1946); Lara v. Lyle, 828 S.W.2d 536, 538 (Tex.App.1992).
41
Pilgrim v. Fortune Drilling Co., Inc., 653 F.2d 982, 984 (1981); Stevens Industries, Inc. v.
Maryland Casualty Co., 391 F.2d 411, 413 (5th Cir.), cert. denied, 392 U.S. 926, 88 S.Ct. 2285,
20 L.Ed.2d 1386 (1968).
42
Pilgrim, 653 F.2d at 984; Putnam v. Erie Manufacturing Co., 338 F.2d 911, 917 (5th
Cir.1964).

9
law43, then cite Texas state court cases that indicate "control" is necessary to impose vicarious liability

under Texas respondeat superior law.44 Appellees also support their argument with this court's

decision in Pilgrim v. Fortune Drilling Co.,45 in which we held that under Texas law, "the test of a

master's liability for the negligent acts of his servant is whether the servant had the right and power

to direct and control the servant in the performance of the casual act or omission at the very instant

of the negligence."46

The appellees' argument fails to address the question before this court. Although it is true that

we are required to apply Texas respondeat superior law to determine Dr. Graham's scope of

employment, we are not required to apply the entire body of respondeat superior law, but only that

portion of the law that resolves the scope of employment issue. Any related respondeat superior

doctrines are nothing more than the type of defenses available to private individuals, and irrelevant

to a Westfall Act scope of employment certification.47

Therefore, we are not convinced by the appellees' reliance on Pilgrim and related Texas cases.

In Pilgrim, which was a single employer case, we held only that Texas law required "control" to

impose liability on the master, and did not hold that "control" was required to be within the scope

of the tortfeasor's employment.48 The Texas cases relied upon by plaintiffs similarly address liability

43
Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761 (1955); White v.
Hardy, 678 F.2d 485 (5th Cir.1982); Arbour v. Jenkins, 903 F.2d 416 (6th Cir.1990).
44
American Nat'l Ins. Co. v. Denke, 128 Tex. 229, 95 S.W.2d 370, 373 (1936) (adopting rule
from Restatement of Agency that "the test of one's liability for the act or omission of his alleged
agent is his right and power to direct and control his imputed agent at the very instant of the act
or omission"); Parmalee v. Texas & New Orleans R.R. Co., 381 S.W.2d 90, 94
(Tex.Civ.App.1964).
45
653 F.2d 982 (5th Cir.1981).
46
Id. at 986. (emphasis added)
47
Smith, 499 U.S. at 166, 111 S.Ct. at 1185.
48
In Pilgrim, we stated that the employers' lack of control over the employee while commuting
was a persuasive factor in finding that the employee acted outside the scope of his employment.
653 F.2d at 987. In commuting cases, however, as with many of the single employer cases, the
control element is needed to distinguish between being "on-duty" and "off-duty," arguably the

10
as a whole, rather than the narrower issue of scope of employment.49 Furthermore, at least one Texas

appellate court has criticized the cases relied upon by the plaintiffs, specifically stating that "control"

is not even required to impose liability, and that the Robertson test has now superseded the earlier

"control" based tests.50 Thus, the appellees still have not addressed why this court should require

more for the sco pe of employment inquiry than the test set forth by the Texas Supreme Court in

Robertson.

Appellees also argue that the scope of employment issue is resolved by the contract between

the Air Force and NCH assigning control of Dr. Graham to the NCH "for the purposes of liability."

Again, this argument fails to address distinctly the scope of employment separately from the ultimate

issue of liability. Merely showing that the Air Force cannot be held liable for Dr. Graham's alleged

misconduct still fails to answer whether Dr. Graham acted within the scope of his employment for

the Air Force at the time of the alleged misconduct.

Appellees also mistakenly rely on Texas cases that indicate "control" is required for a

tortfeasor to be the "employee" of a defendant, rather than an independent contractor.51 Again, these

only issue in a single employer case. Id.; see also, Garcia, 88 F.3d at 320-321. In contrast, in
the present case, it is clear that Graham was "on-duty" for both employers at the time of the
accident, even though only one employer was able to control Graham's actions. (Graham had
active duty status in the Air Force, was under direct orders by the Air Force to complete his
residency at NCH, and was subject to disciplinary action if he failed to do so). Thus, the
"control" issue must not be required to determine the line between work and personal matters.
Instead, "control" determines the larger issue of liability, and is applied to the scope of
employment determination only where that is the ultimate issue in the case. In this case, the
ultimate issue of liability is in the "borrowed servant" doctrine, allocating liability between
multiple employers.
49
Denke, 95 S.W.2d at 373; Parmalee, 381 S.W.2d at 94.
50
Darensburg v. Tobey, 128 Tex. 229, 887 S.W.2d 84, 89 (Tex.Civ.App.1994), writ denied
("To the extent that a conflict exists between the two rules, we hold that the later [Robertson ]
test controls over the earlier Denke test").
51
Thompson v. Travelers Indem. Co. of R.I., 789 S.W.2d 277, 278 (Tex.1990) ("the test to
determine whether an employee is an employee or an independent contractor is whether the
employer has the right to control the progress, details and methods of operation of the employee's
work"); Travelers Ins. Co., v. Ray, 262 S.W.2d 801 (Tex.Civ.App.1953) (To constitute an
"employee" within compensation laws, there must exist between the parties the relationship of
master and servant in the broad sense that the one has the ultimate control and direction over the

11
cases answer a question that is not before the court. Federal law directs that members of the military

are "employees" of the federal government.52 Dr. Graham was clearly not acting as an independent

contractor of the United States government, and Graham's status as employee or independent

contractor of NCH is irrelevant to his Westfall Act certification. Thus, the cases relied upon by the

appellees are irrelevant to the question at hand.

Finally, appellees urge us to follow the logic of Afonso v. City of Boston,53 in which a

Massachusetts district court refused to grant Gonzalez Act immunity under facts similar to the present

case.54 This case is not analogous to the present one, however. Even if Massachusetts respondeat

superior law were identical to Texas law, the Afonso case pre-dated both the Westfall Act and the

Supreme Court's Smith decision, and therefore did not address the puzzle that is currently before this

court.

In contrast to the appellees' arguments, there are several factors that argue in favor of the

appellants' position, most notably the existence of a specific test in Texas state law for "scope of

employment" that does not include the "control" element sought by the appellees.55 We are

particularly disinclined to read an additional "element" into this enunciated test, when that extra

element is offered by the plaintiffs-appellees, who carry the burden of demonstrating that Dr. Graham

was not acting under the course and scope of his federal employment,56 and who have not offered

persuasive arguments that the issue of control is inseparable from the scope of employment test.

In addition, Texas law offers us several clues that the two issues are separable. For instance,

other); Dumas v. Muenster Hospital, 859 S.W.2d 648, 651 (Tex.Civ.App.1993) (Physicians are
generally independent contractors).
52
28 U.S.C. § 2671.
53
587 F.Supp. 1342 (D.Mass.1984).
54
Id. at 1347.
55
Robertson, 468 S.W.2d at 354.
56
Williams, 71 F.3d at 505-506.

12
it is clear under Texas law that a person can serve a "general" employer and a "special" employer

simultaneously, while assigning respondeat superior liability only to the "special employer" who had

control over the act in question.57 Such liability can be awarded to a "special employer" even where

in the case of a conflict in orders, the employee would be likely to follow the orders of the "general

employer," if it is understood between the employers that the employee owes allegiance to the

"special employer" as to one particular act.58 We see no distinction between simultaneously "serving"

two masters, and acting within the "scope of employment" of two employers.

Texas law also tells us that in a single employer case, a particular action can serve more than

one purpose, while still remaining within the scope of employment.59 Specifically, an action may

benefit the employee personally, but still fall within the course and scope of his employment, so long

as the purpose of the action still benefits the master to an appreciable extent.60 This reasoning should

apply equally to the present case, except that in this case the extra beneficiary is not the employee

personally, but the second employer. Thus, just because Graham's actions primarily benefitted the

NCH, does not mean that they could not also fall within the course and scope of Graham's federal

employment.

In addition, we note that, in the absence of the written agreement between the Air Force and

NCH, the "borrowed servant" doctrine could conceivably not absolve the Air Force of liability under

Texas law. At least one Texas court has stated that "unless the obligations of the masters conflict ...

57
J.A. Robinson & Sons v. Wigart, 431 S.W.2d 327, 330 (Tex.1968), overruled on other
grounds, Sanchez v. Schindler, 651 S.W.2d 249 (Tex.1983) ("the important question is not
whether or not he remains the servant of the general employer as to matters generally, but
whether or not as to the act in question, he is acting in the business of and under the direction of
one or the other"); Harrison v. Harrison, 597 S.W.2d 477, 485 (Tex.Civ.App.1980); Carr v.
Carroll, 646 S.W.2d 561, 563 (Tex.Civ.App.1982).
58
Robinson, 431 S.W.2d at 330.
59
Best Steel Bldgs., Inc. v. Hardin, 553 S.W.2d 122, 128 (Tex.Civ.App.1977).
60
Id.

13
there is no reason to exculpate one and bind the other vicariously for the sin of the servant."61 Even

if the borrowing master is liable for the acts of the servant, "the general employer remains liable if the

act fell within the scope of the employee's general employment."62 The borrowed servant inquiry

seems to become relevant only after one determines whether an employee's actions are within the

scope of his general employment.

This reasoning is demonstrated in Porter v. Puryear,63 a malpractice action filed against two

osteopathic physicians and an anesthetist for malpractice. In that case Texas Court of Appeals found

that the evidence showed that the physicians were engaged in a joint venture, and that the anesthetist,

in administering anesthetic, performed the duty for which he was employed and paid by one of such

physicians, so as to render immaterial the borrowed servant rule, under which the jury had found that

the employing physician was not liable for the anesthetist's acts because he was acting under the other

physician's direction and control.64 Although this case was reversed for lack of evidence of proximate

cause, it is indicative that Texas courts see no problem with the idea of one employee serving two

employers at the same time, even if one retains ultimate control over the employee's actions.

In sum, nothing in Texas law indicates that the stated test for scope of employment in

Robertson v. Van Cleave Tank Lines also includes an additional element of control over the

tortfeasor's actions. Instead, we find that the element of control is relevant only to the separate issue

of ultimate liability.

Therefore, to obtain Westfall Act immunity, Dr. Graham was only required to show that his

actions were appropriately within the scope of his federal employment as defined by the Robertson

test. As previously discussed, Dr. Graham's residency at NCH satisfies this test. We therefore find

61
Lara v. Lile, 828 S.W.2d 536, 538 n. 2 (Tex.App.1992, no writ) (citing Restatement
(Second) of Agency § 227 (1958)).
62
Id. at 538, accord Ward, 999 F.2d at 1404.
63
258 S.W.2d 182, (Tex.Ct.Civ.App.1953), reversed on other grounds, 153 Tex. 82, 264
S.W.2d 689 (1954).
64
Porter, 258 S.W.2d at 187.

14
that the Attorney General properly removed the case to federal court and substituted the United

States as defendant. We therefore REVERSE the district court's finding that Dr. Graham was not

acting within the course and scope of his employment, and REMAND the case for further

proceedings consistent with that holding.

15