Opinion issued May 27, 2010
In The
Court of Appeals
For The
First District of Texas
NO. 01-07-00999-CV
EL PASO FIELD SERVICES MANAGEMENT, INC., Appellant
V.
ERNESTO LOPEZ AND GEORGIA LOPEZ, Appellees
and
ERNESTO LOPEZ AND GEORGIA LOPEZ, Appellants
V.
EL PASO FIELD SERVICES MANAGEMENT, INC., Appellee
On Appeal from the 164th District Court
Harris County, Texas
Trial Court Cause No. 2002-43093
MEMORANDUM OPINION
Ernesto and Georgia Lopez sued El Paso Field Services Management, Inc. for personal injuries arising from a work-related incident. The jury apportioned negligence at 80% for El Paso and 20% for Mr. Lopez. After reducing the damages by Mr. Lopez’s percentage of negligence, the trial court rendered judgment on the verdict. El Paso brings three issues on appeal: (1) the legal and factual sufficiency of the evidence supporting the jury’s finding that Mr. Lopez was not a “borrowed employee” of El Paso; (2) the legal and factual sufficiency of the proximate cause evidence as to El Paso’s negligence; and (3) double recovery. Mr. and Mrs. Lopez bring a single point of error: the sufficiency of the evidence in support of the jury’s finding Lopez as 20% negligent. We affirm.
Background
At the time of his injury, Mr. Lopez, an employee of Texas Pipe Fabricators working at a facility owned by El Paso,[1] was assisting in the cleanup of sludge left over from cleaning (“pigging”) a pipeline. As the sludge was being pumped out of a sump tank through a three-inch pipe into a separate “frak tank,” the pipe clogged and an El Paso worker turned a valve to increase pressure in the line in order to dislodge the clog. The pipe suddenly “jumped,” striking Mr. Lopez and crushing his foot between the sump tank and the pipe. Mr. Lopez suffered severe injuries to his foot requiring several surgeries and hospitalization for several weeks and leaving him unable to walk without a cane.
Mr. Lopez filed a claim with his employer’s workers’ compensation carrier and, outside the presence of the jury, the trial court received evidence of his recovery.
El Paso’s Appeal
El Paso challenges the legal and factual sufficiency of the jury findings regarding the (1) “borrowed employee” question and (2) proximate cause. El Paso further asserts that it is entitled to a credit for the workers’ compensation benefits received by Lopez.
A. Factual and Legal Sufficiency
1. Standard of Review
Our review of the legal sufficiency of the evidence must consider the evidence in the light most favorable to the fact-finder’s decision and indulge every reasonable inference in support of that decision. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). If the party attacking the legal sufficiency had the burden of proof on that issue, it must demonstrate that the evidence establishes all vital facts in support of that issue as a matter of law. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). As the reviewing court, we need first search the record for evidence that supports the finding and disregard all evidence to the contrary. Id. Absent evidence supportive of the finding, we then examine the entire record to determine if the contrary proposition was established as a matter of law and, if established conclusively, the issue must be sustained. Id. at 241–42.
A claim of factual insufficiency as to those findings for which the appellant had the burden of proof must demonstrate the finding to be against the great weight and preponderance of the evidence. Id. at 242. If the reviewing court finds the evidence to be so weak, or against the great weight and preponderance of the evidence as to be clearly wrong and unjust, we must set aside a verdict. Id.
Absent an objection to a jury instruction by either party, our sufficiency review is conducted in light of the instruction as given, even if the statement of the law therein is incorrect, and even if the charge as given results in a “more rigorous standard” of proof or effectively increases a party’s burden of proof beyond that actually required by the law. See Romero v. KPH Consolidation, Inc., 166 S.W.3d 212, 220–21 (Tex. 2005); Wal-Mart Stores, Inc. v. Sturges, 52 S.W.3d 711, 715 (Tex. 2001); City of Fort Worth v. Zimlich, 29 S.W.3d 62, 71 (Tex. 2000); IP Petroleum Co., Inc. v. Wevanco Energy, L.L.C., 116 S.W.3d 888, 897, n.8 (Tex. App.—Houston [1st Dist.] 2003, pet. denied).
2. Borrowed Employee Question
El Paso challenges both the legal and factual sufficiency of the jury’s answer to the following:
QUESTION 1
On the occasion in question was Ernesto Lopez acting as a borrowed employee of El Paso Field Services Management, Inc.?
One who would otherwise be in the general employment of one employer is a “borrowed employee” of another employer if such other employer or his agents have the right to direct and control the details of the particular work inquired about.
A person is not acting as an employee if he is acting as an “independent contractor.” An independent contractor is a person who, in the pursuit of an independent business, undertakes to do specific work for another person, using his own means and methods, without submitting himself to the control of such other person with respect to the details of the work, and who represents the will of such other person only as to the result of his work and not as to the means by which it is accomplished.
A written contract expressly excluding any right of control over the details of the work is not conclusive if it was a subterfuge from the beginning or was persistently ignored or was modified by subsequent express or implied agreement of the parties; otherwise such a written contract is conclusive.
Answer: “Yes” or No”
Answer: NO
El Paso claims that the evidence establishes as a matter of law (legal sufficiency) that Mr. Lopez was El Paso’s “borrowed employee.” If true, Mr. Lopez’s recovery in this suit would be barred.[2] Alternatively, El Paso contends that the jury’s finding is against the great weight and preponderance of the evidence (factual sufficiency) and seeks our reversal and remand.
The contract between El Paso and Texas Pipe Fabricators, Lopez’s employer, provides in pertinent part:
Independent Contractor In the performance of work, Contractor shall at all times be an independent contractor, and the relationship of the parties hereunder shall in no event be construed as constituting any other relationship. The detailed manner, means, and method of performing the work are under the sole control of the Contractor, Company being interested only in the results of the work and Contractor complying with this Agreement.
Under the charge submitted to the jury without objection, this written contract is conclusive unless the contract “was a subterfuge from the beginning or was persistently ignored or was modified by subsequent express or implied agreement of the parties.” See Romero, 166 S.W.3d at 221 (“The sufficiency of the evidence must be measured by the jury charge when, as here, there has been no objection to it.”).
In its appellate brief, El Paso states, “Because the parties’ conduct [exercising actual control over Lopez as if he were an employee] essentially modified the terms of the contract, that document is not dispositive of Lopez’s employment status.” The Texas Supreme Court has long cautioned against nullifying such contractual provisions:
From these authorities we take it that the terms of the agreement between the parties is of importance in determining the existence of a master-servant relationship and that the essential inquiry is whether or not the employer has the contract right to control the opposite contracting party in the details of the work to be performed.
In the absence of evidence showing a different relationship between the parties, the fact that the alleged servant was performing services peculiar to the principal’s business or affairs establishes prima facie that the relationship of master and servant exists between them. When, however, the parties, as in this case, have entered into a definite contract that expressly provides for an independent contract relationship and does not vest in the principal or the employer the right to control the details of the work, evidence outside the contract must be produced to show that despite the terms of the primary contract the true operating agreement was one which vested the right of control in the alleged master. Under such circumstances, the exercise of control is evidentiary only. The true test remains the right of control. The exercise of control in cases such as this is not an ultimate test of the master and servant relationship. To hold that it was, would be to practically destroy contract rights and relationships based thereon. The assumption of an exercise of control must be so persistent and the acquiescence therein so pronounced as to raise an inference that at the time of the act or omission giving rise to liability, the parties by implied consent and acquiescence had agreed that the principal might have the right to control the details of the work.
Newspapers, Inc. v. Love, 380 S.W.2d 582, 591–92 (Tex. 1964) (citations omitted).
El Paso points to no evidence in the record to establish that the contract “was a subterfuge from the beginning.” Nor does it point to any evidence in the record establishing that Mr. Lopez’s employer, Texas Pipe Fabricators, the party to the contract, “persistently ignored” the contract or “modified [the contract] by subsequent express or implied agreement of the parties.” Rather, El Paso only points to evidence of what Mr. Lopez, a nonparty to the contract, did.3 Finally, El Paso does not cite to any cases factually similar to this appeal, in which the alleged borrowed servant is not one of the contracting parties
El Paso argues that because the contract described the work Texas Pipe Fabricators agreed to do as “fabrication work,” then the contract constitutes “no evidence” if Mr. Lopez was performing work other than “fabrication work.”4 This argument, however, is contrary to the actual language of question 1, which dictates that the contract is conclusive unless “it was a subterfuge from the beginning or was persistently ignored or was modified by subsequent express or implied agreement of the parties.” Any defect in the submission of this question has been waived, and we must measure the sufficiency of the evidence in light of this charge. See Romero, 166 S.W.3d at 221.
We hold that El Paso has not established as a matter of law that the contract
between El Paso and Texas Pipe Fabricators “was a subterfuge from the beginning or was persistently ignored or was modified by subsequent express or implied agreement of the parties.” (Emphasis added). See Zimlich, 29 S.W.3d at 71 (reviewing sufficiency under specific language of charge given to jury); Ancira Enterprises, Inc. v. Fischer, 178 S.W.3d 82, 93 (Tex. App.—Austin 2005, no pet.) (same). We also hold that El Paso has not established that the jury’s finding that the contract was not “a subterfuge from the beginning or was persistently ignored or was modified by subsequent express or implied agreement of the parties” is so weak or so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Accordingly, we overrule issue one.
3. Proximate Cause
In its second issue, El Paso argues there is no evidence, or in the alternative, factually insufficient evidence, of proximate cause.5 El Paso contends there is insufficient evidence of both elements of proximate cause, cause-in-fact and foreseeability, as that term was defined in the charge:
“Proximate Cause” means that cause which, in a natural and continuous sequence, produces an event, and without which cause such event would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that a person using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom. There may be more than one proximate cause of an event.
In its appellate brief, El Paso acknowledges two causation arguments made by the Lopezes related to the movement of the pipe causing the injury to Lopez’s foot. The first argument is that the pipe “jumped” and crushed Mr. Lopez’s foot because an El Paso employee improperly opened a pressure valve. The second argument is that the pipe “vibrated excessively” and struck Lopez’s foot because of the “manner in which [the] pipeline was secured.” El Paso argues that expert testimony was required regarding these arguments, and therefore the testimony that does exist amounts to no evidence. See Tex. R. Evid. 702 (testimony by experts).
El Paso’s own expert testified that if a line which was not pressurized were to suddenly become fully pressurized, then the momentum from that sudden change in gas pressure “would make the pipe move in some fashion. . . . You wouldn’t want to do that. . . . It is a danger.” This expert testimony, explaining that the sudden pressurization of the pipe would cause it to move dangerously, coupled with the evidence at trial that the pipe, which was designed for minimal pressure, was highly pressured at the time of Lopez’s injury, and was not anchored in accordance with El Paso’s safety manual—suddenly “jumped” when the valve was thrown open, meets the definition of proximate cause in the jury charge, which required evidence that the cause “in a natural and continuous sequence, produces an event.” See Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 458–59 (Tex. 1992) (holding that cause in fact means that “an act or omission was a substantial factor in bring about the injury and without which no harm would have occurred” and that causation may be supported by circumstantial evidence and inferences therefrom). Furthermore, although the exact event was not foreseen, the charge does not so require; instead what is required is foreseeability of some “similar event.” See Brown v. Edwards Transfer Co., 764 S.W.2d 220, 223 (Tex. 1988) (“[F]oreseeability does not require that actor foresee the particular accident or injury which in fact occurs . . . . [or] anticipate just how the injury will grow out of a particular dangerous situation.”). Accordingly, we hold that there is some evidence to support the jury’s finding of causation under legal-sufficiency review. See Havner, 825 S.W.2d at 458–59; Brown, 764 S.W.2d at 223. Although El Paso’s expert testified that the manner in which the valve was opened did not cause the pipe to “jump,” it was within the purview of the jury to disbelieve this portion of the expert’s opinion. See Ulogo v. Villanueva, 177 S.W.3d 496, 499 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (op. on reh’g) (noting that appellate court must defer to jury determinations of credibility in factual sufficiency review and that “[t]he jury is free to believe or disbelieve a witness’s testimony in whole or in part”) (citing Miller v. Kendall, 804 S.W.2d 933, 939 (Tex. App.—Houston [1st Dist.] 1990, no writ)). Considering all the evidence in the record, we also hold that the jury’s finding is not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. See id. Accordingly, we overrule issue two.
B. Credit for Workers’ Compensation Benefits
El Paso’s third issue maintains that it is entitled to a credit for the workers’ compensation benefits Mr. Lopez received, notwithstanding the collateral-source rule. That rule prohibits a wrongdoer from having the benefit of insurance independently procured by the injured party, and to which the wrongdoer was not a party. See Brown v. Am. Transfer & Storage Co., 601 S.W.2d 931, 934 (Tex. 1980). This Court has acknowledged that the collateral-source rule applies to workers’ compensation when the injured worker sues the tortfeasor. Lee-Wright, Inc. v. Hall, 840 S.W.2d 572, 582 (Tex. App.—Houston [1st Dist.] 1992, no writ).
El Paso cites to a case in which a company required a contractor to have its workers’ compensation carrier waive any subrogation right and assign that subrogation right to the company. See Chevron, U.S.A., Inc. v. Simon, 813 S.W.2d 491 (Tex. 1991). No evidence was admitted during trial in this case, however, to suggest that Texas Pipe Fabricators’ workers’ compensation carrier has waived its subrogation right and assigned it to El Paso.6
El Paso has neither cited any controlling authority for the proposition that the collateral-source rule is inapplicable here nor made a compelling argument for why this Court should alter the rule. We decline to do so and overrule issue three.
The Lopezes’ Appeal
The Lopezes bring a single point of error as appellants—that there is no evidence that Mr. Lopez was 20% negligent. In reviewing this point, we must consider the evidence in the light most favorable to fact-finder’s decision and indulge every reasonable inference that would support it. City of Keller, 168 S.W.3d at 822.
El Paso points out, and we agree, there is evidence that Mr. Lopez was standing in a “pinch point” at the time of the accident and that Mr. Lopez had been trained not to position himself in “pinch points.” Following the City of Keller test, we hold there is legally sufficient evidence to support the jury’s verdict.
Accordingly, we overrule the Lopezes’ single point of error.
Conclusion
We affirm the district court’s judgment.
Jim Sharp
Justice
Panel consists of Justices Alcala, Sharp, and Taft.7
[1] El Paso’s predecessor-in-interest, PG&E Texas Pipeline, actually owned the facility but, for simplicity, all references will be to El Paso. Mr. Lopez’s brother, Pedro Lopez, also worked for Texas Pipe Fabricators at the El Paso facility. Pedro Lopez’s testimony did not differ substantively from Ernesto Lopez’s testimony.
[2] See Tex. Lab. Code Ann. § 408.001(a) (Vernon 2006).
3 In its brief, El Paso candidly argues that “the evidence presented by the witnesses’ testimony at trial conclusively established that Lopez and his brother submitted themselves to the direction and control of PG&E supervisory employees with respect to the means, methods, and details of the work to be performed and the means, methods, and details of how the work should be accomplished.”
4 In another section of the contract, the “work” is defined as including “all services to be performed and things to be furnished hereunder, including but not limited to competent supervision, all labor, material, insurance, supplies, water, tools, equipment, light, fuel, power, heat, transportation, or other facilities necessary or desirable for the completion of a project in accordance with this Agreement and to the complete satisfaction of Company.”
5 The Lopezes point out that El Paso does not challenge the remaining elements of negligence: (1) a legal duty; (2) breach of that duty; and (3) damages. See D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002).
6 El Paso’s motion to modify the judgment included as an attached exhibit, a letter reciting: “[I]t is Texas Mutual Insurance Company’s position that their workers’ compensation policy contains a valid waiver of subrogation as to Ernesto Lopez’s above lawsuit as to defendant El Paso . . . .” This letter, however, was neither offered as an exhibit by El Paso, nor admitted into evidence by the trial court. See Wilson v. Williamson, 586 S.W.2d 148, 150 (Tex. Civ. App.—Houston [1st Dist.] 1979, no writ) (document attached to pleading must be offered into evidence for document to be considered by trial court). Had it been offered and admitted as a trial exhibit, it would be part of the reporter’s record. See Tex. R. App. P. 34.6(a)(1). Instead, the letter appears in the clerk’s record as an exhibit to the motion to modify the judgment. Mere physical presence in the clerk’s record, however, does not allow us to consider a document that is otherwise not properly part of the appellate record. See Atchison v. Weingarten Realty Mgmt. Co., 916 S.W.2d 74, 76–77 (Tex. App.—Houston [1st Dist.] 1996, no pet.).
7 Justice Tim Taft, who retired from the First Court of Appeals effective June 1, 2009, continues to sit by assignment for the disposition of this case, which was submitted on June 23, 2009.