Texas Instruments, Inc. v. Alessandro Udell

Reversed and Rendered, and Opinion Filed August 25, 2016.

In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-01042-CV

TEXAS INSTRUMENTS, INC., Appellant
V.
ALESSANDRO UDELL, Appellee

On Appeal from the 95th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-12-03191

MEMORANDUM OPINION
Before Justices Lang, Brown, and Richter1
Opinion by Justice Lang
In this case, we must determine whether an injured worker’s remedy to seek

compensation is exclusively under workers’ compensation or pursuant to a common-law

negligence claim. Before us, Texas Instruments, Inc. (TI) brings an appeal of the trial court’s

second amended final judgment awarding Alessandro Udell damages in the amount of $468,972

on his negligence claim based on an injury Udell sustained while assigned by Volt Services

Group to work at TI. In seven issues, TI argues, the trial court erred when it denied TI’s: (1)

motions for directed verdict and judgment notwithstanding the verdict because the Texas

Workers’ Compensation Act is the exclusive remedy available to Udell; (2) motion for judgment

notwithstanding the verdict on the jury’s answer to question no. 3, finding that Udell was not

1
The Hon. Martin Richter, Justice, Assigned
acting as an employee of TI at the time of the injury; (3) motions for directed verdict and

judgment notwithstanding the verdict because the evidence was legally insufficient to support the

jury’s answer to question no. 1, finding TI negligent; (4) motion for new trial because the

evidence was factually insufficient to support the jury’s answer to question number 1, finding

that TI was negligent; (5) objection to the jury charge on the basis that it should include a

question on Udell’s negligence; (6) challenge for cause against a prospective juror; and (7)

motions for judgment notwithstanding the verdict and new trial because the evidence was legally

and factually insufficient to support the jury’s answer to question no. 2, awarding Udell

damages.

Udell filed a cross appeal. In one cross-issue, Udell argues the trial court erred when it

granted TI’s motion for judgment notwithstanding the verdict, disregarding the jury’s award of a

total of $150,000 in damages for Udell’s past and future mental anguish.

We conclude the trial court erred when it denied TI’s motions for directed verdict and

judgment notwithstanding the verdict because the Texas Workers’ Compensation Act was the

exclusive remedy available to Udell. The trial court’s second amended final judgment is

reversed and judgment is rendered in favor of TI on its affirmative defense under section 408.001

of the Texas Workers’ Compensation Act.

I. FACTUAL AND PROCEDURAL CONTEXT

TI and Volt executed a contract for Volt to furnish personnel with specific work

qualifications and skills as requested by TI from time-to-time. Udell was hired by Volt and

assigned to work at TI.

Udell worked as a manufacturing specialist in a TI facility that was involved in the

manufacture of semiconductors. Keith Davis, the TI supervisor for Udell, other Volt contractors,

and some TI employees, set the work schedule and hours, determined overtime and approved

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time off. Also Davis and Anthu Tran, the TI team lead for Udell’s group, made the work

assignments for the people working on their team, including Udell. Tran also assigned Udell to

training.

At the TI facility, Udell worked in a “clean room,” which had laminar air flow, which is

flow that comes from above, and holes and grates in a raised floor so that air can pass through

the room and down through the floor to trap any dust and debris, keeping particles from staying

stationary or floating in the air. On March 23, 2010, Udell’s tasks were assigned by Tran. As

part of his assigned tasks, Udell carried “pods” to a work area and loaded them onto a machine.

As he walked to the next tool, to perform assigned tasks, he tripped and was injured. Udell

received treatment and reported his injury. Davis investigated and discovered that Udell tripped

where the corner of a floor tile was slightly raised. Udell had five surgeries after his accident at

TI and received workers’ compensation benefits through Volt’s insurance carrier.

Udell filed suit against TI for negligence based on the injury Udell sustained while

assigned to work at TI by Volt. TI answered generally denying the claim and asserted, in part,

that Udell’s claims were barred by section 408.001 of the Texas Workers’ Compensation Act,

the exclusive remedy provision. See TEX. LAB. CODE ANN. §§ 401.001, 408.001 (West 2015).

TI filed a motion for traditional summary judgment on its affirmative defense based on the

exclusive remedy, which the trial court denied. Then, TI filed a motion based on Texas Rule of

Civil Procedure 248, alleging that, as a matter of law, the trial court should determine whether

Udell was an employee of TI for purposes of workers’ compensation. TI argued that if Udell

was its employee, then his claim was barred by the exclusive remedy provision. The trial court

denied TI’s motion.

The case was tried to a jury. At the conclusion of the evidence, TI moved for a directed

verdict based, in part, on the exclusive remedy provision, which the trial court denied. The jury

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found in favor of Udell on his negligence claim, that he was not acting as an employee of TI at

the time of the accident, and awarded him the following damages: $100,000 in past physical pain

and suffering; (2) $200,000 in future physical pain and suffering; (3) $100,000 in past mental

anguish; (4) $50,000 in future mental anguish; (5) $125,000 in past physical impairment; (6)

$25,000 in future physical impairment; (7) $5,000 in past disfigurement; (7) $1,000 in future

disfigurement; and (8) $12,972 in past loss of earning capacity. The trial court signed a final

judgment incorporating the jury’s verdict and awarding damages in the amount of $618,972.

TI filed a motion for judgment notwithstanding the verdict. The trial court granted the

motion, in part, disregarding the jury’s answers to question 2 that awarded Udell past and future

mental anguish. The remainder of the motion was denied. As a result, the trial court signed the

second amended final judgment, which reduced Udell’s damages to $468,972. Also, TI filed a

motion for new trial, which was overruled by operation of law.

II. TEXAS WORKERS’ COMPENSATION ACT

In issues one and two, TI argues the trial court erred when it: (1) denied TI’s motions for

directed verdict and judgment notwithstanding the verdict because the Texas Workers’

Compensation Act is the exclusive remedy available to Udell; and (2) denied TI’s motion for

judgment notwithstanding the verdict on the jury’s answer to question no. 3, finding that “[a]t the

time of the occurrence in question, [] Udell [was not] acting as an employee of [TI].”2 In its brief

on appeal, TI combines two arguments that we construe to be alternative arguments, claiming:

(1) Udell was its employee; or (2) it was Udell’s statutory employer.

2
In the “Summary of the Argument” section of TI’s brief on appeal, it appears that TI is also appealing the trial court’s denial of its motion for
traditional summary judgment on its affirmative defense asserting the exclusive remedy provision of the Texas Workers’ Compensation Act.
However, after a trial on the merits, the denial of a motion for summary judgment may not be reviewed on appeal, except in specific situations
that do not apply here. See Ackermann v. Vordenbaum, 403 S.W.2d 362, 365 (Tex. 1966); Clark v. Dillard’s, Inc., 460 S.W.3d 714, 724 (Tex.
App.—Dallas 2015, no pet.); Anderton v. Schindler, 154 S.W.3d 928, 931 (Tex. App.—Dallas 2005, no pet.).

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 First, TI argues Udell was its employee because: (1) although the contract states Volt is

an independent contractor, the substance of the contract shows that Volt was not an independent

contractor, but a staffing agency; (2) the substance of the contract and the evidence conclusively

show that TI exercised actual control over the details of Udell’s work; and (3) the evidence

conclusively shows that TI had workers’ compensation insurance. Udell responds that he was

not an employee of TI because: (1) as a matter of law, Volt is an independent contractor based on

the contract’s express statement to that effect and Volt controlled the manner and means of

Udell’s work; (2) the evidence is legally sufficient to support the jury’s finding that “[a]t the time

of the occurrence [] . . . Udell [was not] acting as an employee of TI”; and (3) the evidence did

not conclusively show that TI carried workers’ compensation insurance that would cover Udell.

Second, TI argues that Udell should be treated as its employee for workers’ compensation

purposes because: “(1) Udell was a [‘]statutory employee[’] of TI[;] and (2) TI was covered by a

workers’ compensation policy.” Specifically, TI argues “[t]he evidence conclusively established

both that Udell was TI’s [‘]statutory employee[’] under the T[exas] W[orkers’] C[ompensation]

A[ct] and that TI maintained workers’ compensation insurance at the time of Udell’s accident.”

Udell does not respond to this argument on appeal.

A. Standards of Review

1. Motion for Directed Verdict

A directed verdict is warranted when the evidence is such that no other verdict can be

reached and the moving party is entitled to judgment as a matter of law. See Blackstone Med.,

Inc. v. Phoenix Surgicals, L.L.C., 470 S.W.3d 636, 645 (Tex. App.—Dallas 2015, no pet.);

Halmos v. Bombardier Aerospace Corp., 314 S.W.3d 606, 619 (Tex. App.—Dallas 2010, no

pet.); Byrd v. Delasancha, 195 S.W.3d 834, 836 (Tex. App.—Dallas 2006, no pet.). A directed

verdict for a defendant may be proper in three situations: (1) when a plaintiff fails to present

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evidence raising a fact issue essential to the plaintiff’s right of recovery; (2) if the plaintiff either

admits or the evidence conclusively establishes a defense to the plaintiff’s cause of action; or (3)

a legal principle precludes recovery. See Prudential Ins. v. Fin. Review Servs., 29 S.W.3d 74, 77

(Tex. 2000); Blackstone, 470 S.W.3d at 645; JSC Neftegas-Impex v. Citibank, N.A., 365 S.W.3d

387, 398 (Tex. App.—Houston [1st Dist.] 2011, pet. denied) (noting directed verdict also proper

when legal principle precludes recovery); see also Cambio v. Briers, No. 01-10-00807-CV, 2015

WL 2229274, at *3 (Tex. App.—Houston [1st Dist.] May 12, 2015, no pet.) (mem. op.) (noting

directed verdict also proper when legal principle precludes recovery).

To the extent that a trial court’s denial of a directed verdict is based on the evidence, the

standard of review is a legal sufficiency or “no evidence” standard of review. See Blackstone,

470 S.W.3d at 645; Mauricio v. Castro, 287 S.W.3d 476, 478–79 (Tex. App.—Dallas 2009, no

pet.). Similarly, when reviewing a trial court’s order granting a directed verdict, an appellate

court also follows the standard of review for assessing the legal sufficiency of the evidence. See

Flagstar Bank, FSB v. Walker, 451 S.W.3d 490, 498 (Tex. App.—Dallas 2014, no pet.). When

reviewing a directed verdict, an appellate court considers all the evidence in a light most

favorable to the nonmovant, and resolves all reasonable inferences that arise from the evidence

admitted at the trial in the nonmonvant’s favor. See King Ranch, Inc. v. Chapman, 118 S.W.3d

742, 750–51 (Tex. 2003); Blackstone, 470 S.W.3d at 645; Mikob Props., Inc. v. Joachim, 468

S.W.3d 587, 594 (Tex. App.—Dallas 2015, pet. denied). If a fact issue is raised on a material

question, a directed verdict is not proper and the issue must go to the jury. See Exxon Corp. v.

Emerald Oil & Gas Co., 348 S.W.3d 194, 220–21 (Tex. 2011); Blackstone, 470 S.W.3d at 645.

To the extent that the trial court’s ruling on a directed verdict is based on a question of

law, an appellate court reviews that aspect of the ruling de novo. See JSC Neftegas-Impex, 365

S.W.3d at 398; see also Cambio, 2015 WL 2229274, at *3.

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 2. Motion for Judgment Notwithstanding the Verdict

A trial court should grant a motion for judgment notwithstanding the verdict when: (1)

the evidence is conclusive and one party is entitled to recover as a matter of law; or (2) a legal

principle precludes recovery. See Blackstone, 470 S.W.3d at 645; Iroh v. Igwe, 461 S.W.3d 253,

261 (Tex. App.—Dallas 2015, pet. denied); see also TEX. R. CIV. P. 301. A judgment

notwithstanding the verdict is proper when a directed verdict would have been proper. See TEX.

R. CIV. P. 301; Fort Bend Cty. Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 394 (Tex. 1991);

Blackstone, 470 S.W.3d at 645; Helping Hands Home Care, Inc. v. Home Health of Tarrant Cty.,

Inc., 393 S.W.3d 492, 515 (Tex. App.—Dallas 2013, pet. denied). Also, the standard of review

for the denial of a motion for judgment notwithstanding the verdict is the same as for the denial

of a motion for directed verdict. City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005) (“the

test for legal sufficiency should be the same for summary judgments, directed verdicts,

judgments notwithstanding the verdict, and appellate no-evidence review”); Blackstone, 470

S.W.3d at 645–46; Iroh, 461 S.W.3d at 261 n.3; Cambio, 2015 WL 2229274, at *3 (judgment

notwithstanding the verdict also proper when legal principle precludes recovery, which is

reviewed de novo); JSC Neftegas-Impex, 365 S.W.3d at 398.

B. Applicable Law

1. Texas Workers’ Compensation Act—Standard of Review

Courts construe the Texas Workers’ Compensation Act liberally in favor of coverage as a

means of affording employees the protections the Texas Legislature intended. See Port

Elevator-Brownsville v. Casados, 358 S.W.3d 238, 241 (Tex. 2012). The Texas Workers’

Compensation Act has a “decided bias” for coverage and courts interpret the statute in a way that

favors blanket coverage to all workers on a site. See TIC Energy & Chem., Inc. v. Martin, No.

15-0143, 2016 WL 3136877, at *5 (Tex. June 3, 2016); Entergy Gulf States, Inc. v. Summers,

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282 S.W.3d 433, 451 (Tex. 2009); HCBeck, Ltd. v. Rice, 284 S.W.3d 349, 359 (Tex. 2009);

Wingfoot Enters. v. Alvarado, 111 S.W.3d 134, 140 (Tex. 2003). An appellate court applies the

Texas Workers’ Compensation Act as written when determining workers’ compensation issues.

See Wingfoot, 111 S.W.3d at 139.

2. Texas Workers’ Compensation Act—Generally

Unlike workers’ compensation laws in other states, the Texas Workers’ Compensation

Act permits private Texas employers to choose whether to subscribe to workers’ compensation

insurance. See TEX. LAB. CODE ANN. § 406.002(a) (West 2015); Port Elevator, 358 S.W.3d at

241. The Texas Legislature intended the Texas Workers’ Compensation Act to benefit both

employees and subscribing employers. See TIC Energy, 2016 WL 3136877, at *3; Port

Elevator, 358 S.W.3d at 241.

For employees, the Texas Workers’ Compensation Act allows them to recover workers’

compensation benefits for injuries in the course and scope of their employment without proving

fault by the employer and without regard to their negligence or that of their coworkers. See TEX.

LAB. CODE ANN. § 406.031 (West 2015); Port Elevator, 358 S.W.3d at 241. It also guarantees

prompt payment of medical bills and lost wages to covered employees sustaining work-related

injuries without the time, expense, and uncertainty of proving liability under common-law

theories. See TIC Energy, 2016 WL 3136877, at *3.

As for the benefit to employers, it limits their liability. See Port Elevator, 358 S.W.3d at

241. In particular, the Texas Workers’ Compensation Act prohibits employees from seeking

common-law remedies from their employers by making workers’ compensation benefits an

injured employee’s exclusive remedy. See TEX. LAB. CODE ANN. § 408.001(a) (West 2015); TIC

Energy, 2016 WL 3136877, at *3; Port Elevator, 358 S.W.3d at 241. The exclusive remedy

provision is an affirmative defense that the defendant must plead and prove. See Warnke v.

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Neighbors Drilling USA, L.P., 358 S.W.3d 338, 343 (Tex. App.—Houston [1st Dist.] 2011, no

pet.). Employees may have more than one employer within the meaning of the Texas Workers’

Compensation Act, and each employer who subscribes to workers’ compensation insurance may

raise the exclusive-remedy provision as a bar to claims about an injury. See Port Elevator, 358

S.W.3d at 242.

3. Texas Workers’ Compensation Act—Employers and Employees

The Texas Workers’ Compensation Act defines the terms “employer” and “employee” in

different ways depending on the context. See TIC Energy, 2016 WL 3136877, at *8. Compare,

e.g., TEX. LAB. CODE ANN. §§ 401.011(8) (general definition of employer), 401.012 (general

definition of employee) with TEX. LAB. CODE ANN. §§ 406.001 (definition of employer for

purposes of workers’ compensation coverage), 406.122 (definition of employee for purposes of

workers’ compensation insurance coverage). For purposes of workers’ compensation coverage,

“employer” means “a person who employs one or more employees.” TEX. LAB. CODE ANN. §

406.001 (West 2015).

Section 406.122 of the Texas Workers’ Compensation Act states a general rule of

employment status for workers’ compensation purposes. See TIC Energy, 2016 WL 3136877, at

*6. It “provides the applicable definition of employee with respect to the terms ‘subcontractor’

and ‘independent contractor.’” See TIC Energy, 2016 WL 3136877, at *8. A “general

contractor” means “a person who undertakes to procure the performance of work or a service,

either separately or through the use of subcontractors.” TEX. LAB. CODE ANN. § 406.121(a)

(West 2015). Section 406.121(5) defines a “subcontractor” as “a person who contracts with a

general contractor to perform all or part of the work or services that the general contractor has

undertaken to perform.” TEX. LAB. CODE ANN. § 406.121(5). An “employee” means “a person

who performs work or provides a service for a general contractor . . . who is an employer under

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[section 406.001] is an employee of that general contractor . . . unless the person is [an

independent contractor or the employee of an independent contractor].” TEX. LAB. CODE ANN. §

406.122(a) (West 2015). In other words, section 406.122(a) deems all persons providing work or

services for a general contractor to be employees of the general contractor, except for

independent contractors and their employees. See TEX. LAB. CODE ANN. § 406.122(a); TIC

Energy, 2016 WL 3136877, at 4.

a. Independent Contractors and Their Employees Excluded

Section 406.121(2) defines an “independent contractor” as:

[A] person who contracts to perform work or provide a service for the benefit of
another who ordinarily:

(A) acts as the employer of any employee of the contractor by paying wages,
directing activities, and performing other similar functions characteristic of an
employer-employee relationship;

(B) is free to determine the manner in which the work or service is performed,
including the hours of labor of or method of payment to any employee;

(C) is required to furnish or to have employees, if any, furnish necessary tools,
supplies, or materials to perform the work or service; and

(D) possesses the skills required for the specific work or service.

TEX. LAB. CODE ANN. § 406.121(2). Under section 406.122(b), a subcontractor is not an

“employee” of the general contractor if the subcontractor: (1) is operating as an “independent

contractor”; and (2) has agreed in writing to assume the responsibilities of an employer for the

performance of the work. See TEX. LAB. CODE ANN. § 406.122(b); TIC Energy, 2016 WL

3136877, at *1. In other words, section 406.122(b) affirmatively excludes subcontractors as the

general contractor’s employees if they are operating as an independent contractor and have a

written agreement evidencing that relationship. See TEX. LAB. CODE ANN. § 406.122(b); TIC

Energy, 2016 WL 3136877, at *6.

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 b. Determining Whether a Worker is an Employee or an Independent Contractor

A contract expressly providing that a person is an independent contractor is usually

determinative of their status, unless: (1) it is shown to be a mere sham or subterfuge; or (2) other

contract language evidences a different arrangement. See Painter v. Sandridge Energy, Inc., No.

08-13-00272-CV, 2015 WL 6704759, at *5 (Tex. App.—El Paso Nov. 3, 2015, pet. denied);

Farlow v. Harris Methodist Fort Worth Hosp., 284 S.W.3d 903, 911 (Tex. App.—Fort Worth

2009, pet. denied) (citing Newspaper, Inc. v. Love, 380 S.W.2d 582, 588–90, 592 (Tex. 1964)).

However, a contract between two employers providing that one shall have the right to control

certain activities is a factor to be considered, but it is not controlling. See Exxon Corp. v. Perez,

842 S.W.2d 629, 630 (Tex. 1992) (discussing borrowed servant doctrine); Draper v. Am. Rice,

Inc., No. 01-09-00239-CV, 2010 WL 2991094, at *5 (Tex. App.—Houston [1st Dist.] July 29,

2010, no pet.) (mem. op.) (borrowed servant); Flores v. N. Am. Tech. Group, Inc., 176 S.W.3d

442, 449 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) (borrowed servant). Whether a

contract gives the right to control is generally a question of law. See Farlow, 284 S.W.3d at 911.

Even in the absence of an explicit contractual right to control, a party to a contract may

show that one contracting party actually exercised control over the manner in which another

contracting party performed its work. See Painter, 2015 WL 6704759, at *4. The test for

distinguishing between an employee and an independent contractor focuses on whether the

“employer” has the right to control the progress, details, and methods of operation of the work.

See Painter, 2015 WL 6704759, at *6; Raynor v. Moores Mach. Shop, L.L.C., 359 S.W.3d 905,

908 (Tex. App.—Houston [14th Dist.] 2010, no pet.). An employer controls not just the ends

sought, but the means and details of how to get to the end achieved. See Painter, 2015 WL

6704759, at *6. The right to control is measured by considering the following attributes of an

employer: (1) the independent nature of the workers’ business; (2) the right to hire and fire; (3)

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the obligation to pay wages and withhold taxes and the method of payment, whether by unit of

time or by the job; (4) the worker’s obligation to furnish necessary tools and supplies; (5) the

time for which the worker is employed; and (6) the employer’s actual control of the progress of

the work and the details of the worker’s performance, not just the ends sought or the final results.

See Painter, 2015 WL 6704759, at *6 (listing four factors); Raynor, 359 S.W.3d at 908 (listing

five factors). For workers’ compensation purposes, actual control over the details of an

employee’s work that gave rise to the injury exists if the employee was working on the general

contractor’s premises, in furtherance of its day-to-day business, and the details of that work were

specifically directed by the general contractor. See Garza v. Excel Logistics, Inc., 161 S.W.3d

473, 477 (Tex. 2005).

Whether one party exercised actual control is generally a fact issue. See Painter, 2015

WL 6704759, at *4; Farlow, 284 S.W.3d at 911. Similarly, determining employee status is a

fact question for the jury, unless the material, underlying facts are not in dispute and can give

rise to only one reasonable conclusion. See Raynor, 350 S.W.3d at 980–09.

4. Texas Workers’ Compensation Act—Statutory Employer Exception

However, an exception to the general rule in section 406.122(a), excluding the employees

of “independent contractors” from the definition of “employee,” exists when a “general

contractor” is: (1) the statutory employer of the independent contractor; and (2) the general

contractor is covered by a workers’ compensation policy. See Port Elevator, 358 S.W.3d at 243;

W. Steel Co. v. Altenburg, 206 S.W.3d 121, 123 (Tex. 2006). A general contractor may become

a statutory employer of an independent contractor in at least two ways. First, a general

contractor may become a voluntary statutory employer under section 406.123(a) by agreeing, in

writing, to provide workers’ compensation insurance to the independent contractor. See TEX.

LAB. CODE ANN. § 406.122(a); TIC Energy, 2016 WL 3136877, at 4; Entergy, 282 S.W.3d at 439

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(discussing voluntary employer status). Second, a general contractor may become the statutory

employer of an independent contractor’s employee under the “deemed employer” provision in

section 406.124. See Entergy, 282 S.W.3d at 438–39; Houston Fire & Cas. Ins. v. Farm Air

Serv., Inc., 325 S.W.2d 860, 864–65 (Tex. Civ. App.—Austin 1959, writ ref’d n.r.e.) (concluded

that earlier version of section 406.124 included independent subcontractor).

Section 406.124 addresses when a subscriber to workers’ compensation shall be a

“deemed employer” and the worker shall be “treated as an employee.” Essentially, if the worker

is an “employee” under some other statutory provision, then section 406.124 does not apply. See

All-Tex Roofing, Inc. v. Greenwood Ins. Group, Inc., 73 S.W.3d 412, 419 (Tex. App.—Houston

[1st Dist.] 2002, pet. denied) (noting that if worker had been proved to have been All-Tex’s

employee, there would have been no need to invoke section 406.124 in order to “treat” him as

one). Section 406.124 provides:

If a person who has workers’ compensation insurance coverage subcontracts all or
part of the work to be performed by the person to a subcontractor with the intent
to avoid liability as an employer under this subtitle, an employee of the
subcontractor who sustains a compensable injury in the course and scope of the
employment shall be treated as an employee of the person for purposes of
workers’ compensation . . . .

TEX. LAB. CODE ANN. § 406.124 (West 2015). It has long been the policy of Texas that no

subscriber to workers’ compensation insurance can avoid covering an injured worker merely

because the worker was employed by a subcontractor. See Entergy, 282 S.W.3d at 438 n.5.

There is “no distinction between different kinds of entities up and down the contracting chain.”

See Entergy, 282 S.W.3d at 439. For purposes of the Texas Workers Compensation Act, “it

would be [] bad for owner-subscribers[,] [general contractors, subcontractors, or any other

subscriber,] to try to avoid covering workers by subcontracting out the work.” See Entergy, 282

S.W.3d at 439. “By operation of [section 406.124], a [person who has workers’ compensation

insurance coverage] who contracted out work to avoid liability for its workers’ injuries would
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nevertheless be considered the employer, the injured worker would be entitled to benefits under

the [deemed employer’s] compensation policy, and the [deemed employer] would be entitled to

the exclusive remedy defense.” See Entergy, 282 S.W.3d at 439.

5. Workers’ Compensation Insurance Coverage

Section 406.002 of the Texas Workers’ Compensation Act provides that “an employer

may elect to obtain workers’ compensation insurance coverage” and if it does so, it is subject to

the Act. See TEX. LAB. CODE ANN. § 406.002; Garza, 161 S.W.3d at 478. The methods for

obtaining coverage are specified in section 406.003, which provides that “[a]n employer may

obtain workers’ compensation insurance coverage through a licensed insurance company or

through self-insurance.” See TEX. LAB. CODE ANN. § 406.002; Garza, 161 S.W.3d at 478.

Section 406.051 provides that “[a]n insurance company may contract to secure an employer’s

liability and obligations and to pay compensation by issuing a workers’ compensation insurance

policy,” and “[t]he contract for coverage must be written on a policy and endorsements approved

by the Texas Department of Insurance.” See TEX. LAB. CODE ANN. § 406.051(a), (b); Garza,

161 S.W.3d at 478.

When the worker agrees that the general contractor has workers’ compensation insurance,

there is no dispute that the general contractor is a subscriber. See W. Steel, 206 S.W.3d at 124.

“[T]he T[exas] W[orkers’] C[ompensation] A[ct] and [the] decisions [of the Texas Supreme

Court] are intended to prevent an employer from splitting its workforce by choosing coverage for

some employees but not coverage for all—absent limited statutory or common-law exceptions.”

See Port Elevator, 358 S.W.3d at 243. As a result, if the general contractor is the worker’s

employer, it is enough to show that it is a workers’ compensation subscriber. See Port Elevator,

358 S.W.3d at 243 (noting parties agreed that Port Elevator was workers’ compensation

subscriber at time of injury and no evidence of exception to rule against splitting workforce).

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 C. Application of the Law to the Facts

TI raises two alternative arguments on appeal, contending: (1) Udell was its employee; or

(2) it was Udell’s statutory employer. As a result, the resolution of this issue depends on

whether TI was: (1) Udell’s employer and covered by workers’ compensation insurance

coverage; (2) his employer and not covered by workers’ compensation insurance; (3) not his

employer, but his statutory or “deemed employer,” and covered by workers’ compensation

insurance; or (4) not his employer. See generally, Garza, 161 S.W.3d at 475.

1. Was Udell an Employee of TI for Purposes of Workers’ Compensation?

Initially, we address TI’s argument that Udell was its employee. The parties focus on

three major questions that we must resolve: (1) whether Volt was an independent contractor

pursuant to the terms of the contract between TI and Volt; (2) whether TI had the right to control

the progress, details, and methods of operations of Udell’s work; and (3) whether TI had

workers’ compensation insurance. An answer in favor of Udell on any of these questions results

in the conclusion that Udell was not an employee of TI for purposes of workers’ compensation

and ends our inquiry. Accordingly, we address each argument in turn.

a. Was Volt an Independent Contractor Pursuant to the Terms of the Contract?

Initially, we address the parties’ first major area of analysis, which requires us to

determine whether Volt was an independent contractor pursuant to the terms of the contract

between TI and Volt. If it was, then pursuant to section 406.122(b), Udell was excluded from

being an employee of TI for purposes of workers’ compensation coverage. See TEX. LAB. CODE

ANN. § 406.122(b). This analysis requires us to examine the contract between TI and Volt.

Although TI acknowledges that the contract recites that Volt is an independent contractor, it

argues that recitation is not controlling. Also, TI claims the contract between it and Volt is silent

–15–
as to who controls the day-to-day activities of individual workers. Conversely, Udell argues “the

contract expressly states that Volt, not TI, controlled the manner and means of Udell’s work.”

At trial, the contract between TI and Volt, was admitted into evidence. It consists of the

main contract and an attachment, describing the professional services that Volt will provide to

TI. Initially, the contract appears to provide that Volt is an independent contractor because

paragraph 11 of the contract between TI and Volt is titled “Independent Contractor” and states

“It is understood and agreed that Volt shall be acting as an independent contractor and not as an

agent or employee of TI.” A contract expressly providing that a person is an independent

contractor is usually determinative of their status, unless: (1) it is shown to be a mere sham or

subterfuge; or (2) other contract language evidences a different arrangement. See Painter, 2015

WL 6704759, at *5. Neither party argues the contract was a mere sham, so we must look to see

whether other contract language evidences a different relationship. See Painter, 2015 WL

6704759, at *5.

The contract provides that TI will pay Volt for the services of its contract personnel, and

Volt will be responsible for the environmental, safety, health, information access, and security

training. In addition, the attachment to the contract requires Volt to provide on-site program

managers to manage the contract personnel, including their training, scheduling and vacation

requests, and testing. However, paragraph 5(a) provides that TI “reserves the right to accept or

reject any of Volt’s personnel submitted for assignments . . . at its sole discretion.” Also,

paragraph 2(C) of the contract discusses, in part, qualified Volt candidates attending “TI’s new

hire orientation.” Further, pursuant to paragraph 7, upon notification to Volt that TI has

determined that any of Volt’s personnel are not qualified or are incapable to perform the duties,

TI is not required to pay for the services of the identified personnel. Also, paragraph 20(a)

provides that if Volt’s employees fail to act in a businesslike manner or interfere with TI

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business operations, it shall be grounds for immediate termination of the contractor’s badge,

which may be issued to Volt personnel at TI’s discretion. In addition, the attachment to the

contract between TI and Volt states that TI shall provide “appropriate style smocks, gloves, and

other related equipment,” “shall reimburse Volt for the actual costs of Volt-provided eye exams

and prescription safety glasses,” “shall provide wafer carriers and wafers to allow applicants to

gain experience in material handling as a part of the . . . program,” and “shall provide access to

web[-]based testing materials.”

Even though the contract claims Volt is an independent contractor, the terms of the

contract referred to above reflect that TI retained control over, at least, certain activities.

Accordingly, the contract between TI and Volt appears to be a “hybrid agreement.” See

generally, Painter, 2015 WL 6704759, at *5 (discussing pure daywork and turnkey contracts).

As a result, we conclude the contract does not control or end our inquiry into whether Udell was

TI’s employee for purposes of workers’ compensation. See generally, Exxon Corp., 842 S.W.2d

at 630 (contract between two employers providing one employer has right to control certain

activities is factor to consider, but not controlling); Painter, 2015 WL 6704759, at *5.

b. Did TI Have the Right to Control Udell’s Work?

Next, we address the parties’ second major area of analysis, which requires us to

determine whether Udell was an “employee” of TI for purposes of workers’ compensation

coverage, not an independent contractor, because TI had the right to control the progress, details,

and methods of operation of Udell’s work that gave rise to his injury. See Painter, 2015 WL

670459, at *6; Raynor, 359 S.W.3d at 908. TI argues it is undisputed that Udell was working on

its premises at the time of the accident and Udell was furthering TI’s day-to-day business at the

time of his injury. According to TI, the only dispute is whether it was directing the details of

Udell’s work at the time. TI claims the evidence conclusively established that Udell was its

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employee because it shows: (1) Udell had just completed carrying and loading some “pods” onto

a TI machine and was walking to another tool when he tripped over a floor tile; (2) TI made the

assignments as to which tool Udell would work on for a given day; and (3) TI’s personnel

provided the training that was required for Udell to work with those tools. Udell responds that

the evidence shows Udell was the employee of Volt, an independent contractor, not TI’s

employee for purposes of workers’ compensation because “it is clear that Volt was Udell’s

employer and no implied contract was entered into between Udell and TI. Volt clearly had

control over Udell’s employment.”

As a preliminary matter, we note that Udell’s argument on appeal suggests that he can

have only one employer and that his employer was Volt. However, an employee may have more

than one employer within the meaning of the Texas Workers’ Compensation Act. See Port

Elevator, 358 S.W.3d at 242. TI does not dispute that Volt was Udell’s employer. Rather, it

argues that for purposes of workers’ compensation insurance coverage, Udell was also TI’s

employee. Accordingly, we examine the record to see whether TI had the right to control the

progress, details, and methods of operation of Udell’s work at the time of his injury. See

Painter, 2015 WL 6704759, at *5 (law has always required control to relate to injury causing

activity). Udell does not point us to any authority demonstrating that evidence showing Volt was

Udell’s employer negates the evidence demonstrating that Udell was also TI’s employee for

purposes of workers’ compensation. See Garza, 161 S.W.3d at 477 (testimony that supervisors

for both client company and temporary employment agency told injured worker what to do on a

day-to-day basis and it was client company’s supervisor that directed the work related to the

injury was sufficient for summary judgment purposes to establish client company actually

controlled details of work that causes injury).

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 In order to determine whether TI had the right to control Udell’s work at the time of his

injury, we consider the following: (1) the independent nature of Volt’s and Udell’s business; (2)

whether TI or Volt had the right to hire and fire Udell; (3) whether TI or Volt had the obligation

to pay wages and withhold taxes, and whether the method of Udell’s payment was by unit of

time or by job; (4) Udell’s obligation to furnish necessary tools and supplies; (5) the time for

which Udell was employed; and (6) TI’s actual control of the progress of Udell’s work and the

details of his performance, not just the ends sought or the final result. See Painter, 2015 WL

6704759, at *6; Raynor, 359 S.W.3d at 908. We address each of these contentions in turn.

First, with respect to the independent nature of the Volt’s or Udell’s business, the record

shows that in the TI clean room, TI and Volt employees worked together, “side-by-side,” and the

only way to tell them apart was by their badge. According to Davis, although the Volt workers

wore a different badge, they were treated the same as the TI employees and he used the same

process for setting their work hours. Further, the contract between TI and Volt required that all

Volt employees assigned to work at TI “execute all forms that TI may request of its own

employees,” which included drug testing certification. Also, the contract required that Volt

personnel “successfully complete a drug test prior to performing work on TI property.”

According to Davis, all of TI’s policies applied to all workers. This is consistent with the

contract between TI and Volt, which required Volt to comply with and ensure its employees

complied with TI’s environmental, health and safety, and information access and related training

“procedures, specifications, standards, guidelines and handbooks.” Cf. Raynor, 359 S.W.3d at

910 (concluding, in part, there was a fact issue as to the independent nature of the workers’

business because there was evidence that company did not treat worker the same way it treated

its employees, did not require worker to complete employment application and paperwork that its

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employees had to complete, did not require worker to take a drug test like its employees, and

worker was hired to perform a specific task that was not part of company’s core business).

Second, as to the right to hire and terminate employees, the contract between TI and Volt

and the attachment to that contract, and the TI Supervisor Quick Reference to the Volt Program

(Quick Reference), all of which were admitted into evidence, are instructive. The contract

between TI and Volt states, in part, “Volt will replace any personnel whom TI finds

unsatisfactory. TI reserves the right to accept or lawfully reject any of Volt’s personnel

submitted for assignments at TI, in TI’s sole discretion.” In addition, the contract states that

“[o]nce Volt has been notified, TI will not be required to pay for the services of Volt’s personnel

identified as unqualified or incapable.” The attachment to the contract states that “Volt shall

provide and qualify contractor personnel using TI approved contractor screening and testing

processes.” In the Quick Reference, the section titled, “Terminations,” states, in part, “[t]he TI

supervisor is asked to be as specific as possible when requesting the [c]ontractor be released

from assignment. . . . The Volt [p]rogram [m]anagers will handle all terminations.”

Third, we look to whether TI or Volt had the obligation to pay wages and withhold taxes,

and whether the method of Udell’s payment was by unit of time or by the job. The contract

between TI and Volt provides a formula for calculating the hourly bill rate and states it “includes

all direct labor costs, including wages, shift differential, and benefits, as well as any additional

items specified in the attachment.” The contract also provides for bonuses, overtime,

participation in the incentive pool that is tied to TI’s profits, and reimbursement by TI for any

“safety equipment, job related medical testing, health and safety training, and drug testing.” The

attachment to the contract states that “Volt shall bill TI between the range of $11.97 to $17.29

per hour for A/T operators, manufacturing specialists and QC specialists.” It also states that the

hourly rate includes social security taxes, federal and state unemployment taxes, Volt’s insurance

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costs, including workers’ compensation, employee benefits costs, and job support services costs.

In addition, the attachment to the contract also contains provisions for overtime pay, shift

premiums, holiday pay, and vacation pay. As to payroll, the Quick Reference states a TI

Supervisor “must make and approve adjustments to their [c]ontractor’s time weekly.” Also, as to

“checks” it states that the contractors’ checks will be available in the Volt branch office for pick

up on Fridays or through direct deposit, the forms for which may be obtained from a Volt

program manager. Further, Udell testified that while assigned to TI, he was paid $10.53 per hour

and received a bonus for completion of his assignments. Cf. Raynor, 359 S.W.3d at 911

(concluding, in part, fact issue as to method of payment because no evidence worker received

hourly wage and evidence showed he was not paid through company’s payroll system).

Fourth, the contract between TI and Volt, and the attachment to that contract address TI’s

obligation to furnish necessary equipment and supplies. The contract states that “[u]pon receipt

of any materials, equipment or tools supplied to Volt by TI, Volt’s personnel shall examine such

equipment, tools and materials for good repair and appropriateness for the use for which they are

intended.” The contract also provides TI may reimburse Volt separately for safety equipment.

The attachment to the contract states TI will provide smocks, gloves, and other related

equipment. Also, Davis testified that once everyone was inside the clean room, they were all

working on the same tools.

Fifth, the record provides information as to the time for which Udell was employed. The

Quick Reference states, in part, that the TI supervisor is to “[a]pprove and adjust their hours,”

and “[a]pprove requests from Volt contractors for time off.” Also, in the section relating to time

off, Volt contractors are required to request leave through the TI time system and those leave

requests will be approved or denied by the TI supervisor. In addition, if a Volt worker is going

to be late to work, that person is required to contact the TI supervisor and then contact or leave a

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message for the Volt program manager. However, it states that the TI supervisor will contact the

Volt program manager to discuss any attendance, conduct, or performance issues. Also, Davis

stated that, for Udell and the other Volt contractors on his team, he set their work schedule and

hours, decided the hours they worked, determined whether they would have overtime, and

approved their time off. Cf. Raynor, 359 S.W.3d at 910–11 (concluding, in part, fact issue as to

time worker employed because evidence showed worker had worked for less than eight hours

over two days, the plan was for the worker “to work just a couple of days,” and company knew

worker was looking for other, more steady work).

Sixth, and most importantly, we address TI’s actual control of the progress of Udell’s

work and the details of his performance, not just the ends sought or the final result. Udell does

not dispute that at the time of his injury he was working on TI’s premises in furtherance of its

day-to-day business. During the trial, Udell testified that, after carrying “pods” to a work area

and loading them onto the machine, he tripped when walking to the next tool. As to the details

of Udell’s work, the record shows that TI set Udell’s work schedule and daily assignments,

provided him training, and was responsible for communicating his goals and performance.

The employment agreement between Volt and Udell was admitted into evidence and it

required Udell to “comply with the customer’s instructions and rules while on assignment with

the customer.” Also, Davis stated that he or his team lead assigned the people working on their

team, including Udell, to the tool they would be working on that day. With regard to Udell’s

work, Davis stated that he assigned Udell to specific tasks. Davis testified that on the morning of

Udell’s injury, his specific task had been assigned by Tran, the TI team lead. Similar to Davis’s

testimony, Tran stated that she would assign individuals to work a specific tool. See Garza, 161

S.W.3d at 477 (testimony that supervisors for both client company and temporary employment

agency told injured worker what to do on a day-to-day basis and it was client company’s

–22–
supervisor that directed the work related to the injury was sufficient for summary judgment

purposes to establish client company actually controlled details of work that causes injury); cf.

Raynor, 359 S.W.3d at 910 (concluding, in part, fact issue as to actual control over the progress

and details of work because evidence showed worker determined how he wanted to do the job, it

was up to worker where he wanted to start on job, worker had discretion as to welding pattern he

wanted to use, and worker was left alone to do job and company’s supervisor left site).

Although the attachment to the contract required Volt to “[p]rovide new and on-going

training to contractors” it specified that the training was in “subject areas required by TI” and

that “the content and format of such training shall be approved by TI.” It also required Volt to

“provide a full time trainer to facilitate contract personnel’s training needs at a cost of

$4875/month.” The Quick Reference states that the TI supervisor is to “[p]rovide on-the-job

supervision and training of Volt contractors.” Also, Tran testified that she assigned Udell to

training, which could include another Volt contractor if they were certified or qualified. This is

not inconsistent with Kamicka Jackson’s testimony that “they wanted to train [Udell] on that

area, so he kind of worked with me a little bit.” In addition, Karla Shepard, a TI employee,

testified that she trained Udell, showing him “how to run the process—material and the tools.”

Udell testified that he was trained by Shepard and Tran, both TI employees, and Jackson, a Volt

contractor.

Also, in the Quick Reference section titled, “Performance Reviews,” it states, “Volt’s

[p]rogram [m]anagers will conduct performance reviews with all [c]ontractors assigned to TI in

alignment with the TI annual performance cycle. Volt’s [p]rogram [m]anagers will request

feedback from TI [s]upervisors to assist in the development of an accurate performance

appraisal.” Although it states that the Volt program managers will conduct the performance

reviews, the TI supervisors are to “[p]rovide timely written feedback to the Volt [p]rogram

–23–
[m]anager on Volt contractor performance,” “[c]omplete performance review forms for

contractors provided to [them] by the Volt [p]rogram [m]anager,” and “[r]ank [the] performance

of Volt contractors with input from the Volt program manager.” Also, the Quick Reference

states that the Volt program manager is to “[i]nvite the TI [s]upervisor to attend performance

reviews.”

Having considered the foregoing, we have determined the record reflects Udell was

working on TI’s premises, in furtherance of TI’s day-to-day business, and the details of Udell’s

work that gave rise to his injury were directed by TI. See Garza, 161 S.W.3d at 477. We

conclude the evidence conclusively establishes, for the purposes of the Texas Workers’

Compensation Act, TI was an “employer” Udell. See TEX. LAB. CODE ANN. § 401.122; Port

Elevator, 358 S.W.3d at 242; Garza, 161 S.W.3d at 477.

c. Was TI Covered By a Workers’ Compensation Policy

Finally, we address the parties’ third major area of analysis, which requires us to

determine whether TI is covered by a workers’ compensation policy. TI argues the evidence

conclusively establishes and it is undisputed that it has workers’ compensation insurance. Udell

responds that TI’s workers’ compensation insurance policy excluded Udell from coverage and TI

failed to prove that it’s insurance was in effect on the date of the accident.

During a pretrial hearing, counsel for TI argued that, in order to prove its exclusive

remedy defense, it would need to put on evidence at trial that it was “an employer under the

[Texas Workers’ Compensation] Act,” “Udell is an employee under the [Texas Workers’

Compensation] Act,” “[TI has] workers’ compensation coverage,” and there are no exclusions

because Udell participated in the workers’ compensation system and “didn’t opt out.” The trial

court asked whether any of those things were in issue. Counsel for Udell responded, “I don’t

think so” and stated “Well, the only issue would be that’s . . . in dispute is the right to control the

–24–
manner and means of performance or the details of the work. . . . There’s all this evidence that he

was employed by Volt, so I think this is nothing more than an effort to try to taint the jury.” The

trial court stated, “I had understood those were not in dispute at this point” and counsel for Udell

responded, “They’re not.” Then, the trial court asked Udell’s counsel, “So do you stipulate to

the matter that he said?” and counsel for Udell answered, “Yes, sir.”3

Because Udell agreed that TI has workers’ compensation insurance, there is no dispute

that TI is a subscriber. See W. Steel, 206 S.W.3d at 124. Accordingly, we conclude TI was

covered by workers’ compensation insurance.

2. Was TI the Statutory Employer of Udell?

Nevertheless, even if Udell is correct that he was not an “employee” of TI because Volt

was an independent contractor, there remains the issue of whether Udell should be “treated as”

TI’s employee for workers’ compensation purposes because TI is his statutory or deemed

employer.4 The parties do not contend that TI became a voluntary statutory employer under

section 406.123(a) by agreeing, in writing, to provide workers’ compensation insurance to the

subcontractor. See TEX. LAB. CODE ANN. § 406.122(a); TIC Energy, 2016 WL 3136877, at 4;

Entergy, 282 S.W.3d at 439. In fact, the contract between TI and Volt specifies that Volt will

provide workers’ compensation insurance. Accordingly, we address whether TI was a “statutory

employer” under the “deemed employer” statute in section 406.124.

Section 406.124 applies to a general contractor who has compensation insurance and

subcontracts all or part of the work to be performed with the intent to avoid liability. See TEX.

3
We note counsel for TI made a bill of exceptions during the trial and TI’s workers’ compensation insurance policy was admitted into evidence
for purposes of the bill.
4
TI’s motions for directed verdict and judgment notwithstanding the verdict do not specifically raise this argument or cite to section 406.124 of
the Texas Workers’ Compensation Act. However, because we must liberally construe the provisions of the Texas Workers’ Compensation Act
and apply a “decided bias” for coverage, we follow the majority’s example in Entergy and apply section 406.124. See Entergy, 282 S.W.3d at
438–39 (majority op.), 452–53 (J., Hecht concurring) (discussing policies of Texas Workers’ Compensation Act and relevance of section
406.124), 479–80 (J., Willett, concurring) (noting none of parties relied on section 406.124, disagreeing with its application and concluding it
is rarely used subterfuge provision intended to thwart sham attempts by employers to avoid liability).

–25–
LAB. CODE ANN. § 406.124; Entergy, 282 S.W.3d at 439. Paragraph 11 of the contract between

TI and Volt states, in part, that:

Volt assumes all risks and hazards encountered in his/her performance of this
Agreement, and further, Volt shall be solely responsible for all injuries, including
death, to all persons and all loss or damage to property which are attributed in any
way to Volt’s performance under this Agreement or that of any agent, employee,
or sub-contractor engaged by Volt.

Also, as previously noted, paragraph 13(A)(1) of the contract between TI and Volt, requires Volt

to provide workers’ compensation insurance. Accordingly, TI satisfies the requirements of

section 406.124.5 Therefore, by operation of section 406.124, for purposes of works’

compensation coverage, TI is considered a statutory or deemed employer, Udell is “treated as”

TI’s employee, and TI is entitled to the exclusive remedy defense. See Entergy, 282 S.W.3d at

439. It would be inconsistent with the purpose and intent of the Texas Workers’ Compensation

Act to conclude otherwise. See generally, Entergy, 282 S.W.3d at 439.

3. Conclusions—Exclusive Remedy

Construing the Texas Workers’ Compensation Act liberally and bearing in mind its

“decided bias” in favor of coverage, we conclude that because Udell was TI’s employee for

purposes of workers’ compensation coverage and TI was a workers’ compensation subscriber, TI

conclusively proved its exclusive remedy defense. See Port Elevator, 358 S.W.3d at 243.

However, even if Udell was excluded from being TI’s “employee” because Volt was an

“independent contractor,” TI would be Udell’s statutory or deemed employer and Udell should

be “treated as” its employee. See generally, Entergy, 282 S.W.3d at 438–39. Accordingly, the

5
Section 406.124 provides:

If a person who has workers’ compensation insurance coverage subcontracts all or part of the work to be performed by the
person to a subcontractor with the intent to avoid liability as an employer under this subtitle, an employee of the
subcontractor who sustains a compensable injury in the course and scope of the employment shall be treated as an
employee of the person for purposes of workers’ compensation . . . .

(Emphasis added).

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trial court erred when it denied TI’s motions for directed verdict and judgment notwithstanding

the verdict because the Texas Workers’ Compensation Act is the exclusive remedy available for

Udell’s injuries.

Issues one and two are decided in favor of TI. Based on our resolution of issues one and

two, we need not address the parties’ remaining issues and cross-issue.

III. CONCLUSION

The trial court erred when it denied TI’s motions for directed verdict and judgment

notwithstanding the verdict because the Texas Workers’ Compensation Act was the exclusive

remedy available to Udell.

The trial court’s second amended final judgment is reversed and judgment is rendered in

favor of TI on its affirmative defense under section 408.001 of the Texas Workers’

Compensation Act.

/Douglas S. Lang/
DOUGLAS S. LANG
JUSTICE
141042F.P05

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 Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

TEXAS INSTRUMENTS, INC., Appellant On Appeal from the 95th Judicial District
Court, Dallas County, Texas
No. 05-14-01042-CV V. Trial Court Cause No. DC-12-03191.
Opinion delivered by Justice Lang. Justices
ALESSANDRO UDELL, Appellee Brown and Richter participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is

REVERSED and judgment is RENDERED in favor of appellant TEXAS INSTRUMENTS,

INC., on its affirmative defense.

It is ORDERED that appellant TEXAS INSTRUMENTS, INC., recover its costs of this

appeal from appellee ALLESSANDRO UDELL. The obligations of appellant TEXAS

INSTRUMENTS, INC., as principal, and THE INSURANCE COMPANY OF THE STATE OF

PENNSYLVANIA, as surety, on appellant TEXAS INSTRUMENTS, INC.’s supersedeas bond

are DISCHARGED.

Judgment entered this 25th day of August, 2016.

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