Guadalupe Mariscal v. McCarthy Building Companies, Inc. and the Brandt Companies, LLC

NUMBER 13-19-00211-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

GUADALUPE MARISCAL, Appellant,

v.

MCCARTHY BUILDING COMPANIES, INC.
AND THE BRANDT COMPANIES, LLC, Appellees.

On appeal from the 148th District Court
of Nueces County, Texas.

MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Longoria and Tijerina
Memorandum Opinion by Justice Tijerina

Appellant Guadalupe Mariscal appeals the trial court’s grant of summary judgment

in favor of appellees, McCarthy Building Companies, Inc. (McCarthy) and The Brandt

Companies, LLC (Brandt). By six issues, Mariscal contends that (1) there is a conflict

among the trial court’s rulings, (2) appellees’ summary judgment evidence is inadmissible,
(3) “Evidence establishes that Appellees and Appellant’s employer were ‘Independent

Contractors,’” (4) McCarthy is not entitled to the Texas Workers’ Compensation Act’s (the

TWCA) exclusive remedy defense, TEX. LAB. CODE ANN. § 408.001(a), (5) “Appellees fall

outside of [the Texas Labor Code] § 408.001,” and (6) the “[s]ubrogation [l]ien establishes

[the] validity of Appellant’s third-party claims against Appellees.” We affirm.

I. BACKGROUND

McCarthy entered into a contract with Christus Health, the owner of Spohn

Hospital—Shoreline in Corpus Christi, Texas, to work on a construction project. McCarthy

subcontracted with Murray Drywall & Insulation of Texas, Inc. (Murray) and Brandt to work

on the project. Murray subcontracted with Emerald Coast Cleaners (Emerald) to work on

the project. On July 10, 2017, Mariscal, an Emerald employee, was injured while working

on the project after he stepped in a hole that was covered with plywood. It is undisputed

that Mariscal received workers’ compensation benefits due to his work-related injury.

On February 8, 2018, Mariscal sued McCarthy and Brandt for negligence, gross

negligence, and negligence per se. According to Mariscal’s pleadings, Brandt employees

made the hole while they were installing a drain, and they then covered the hole with a

sheet of plywood. Mariscal stated that when he stepped on the plywood, he fell into the

hole because the plywood was ineffective and caved when he stepped on it.

On June 28, 2019, appellees filed a traditional motion for summary judgment

claiming that Mariscal could not file suit against them because (1) he had received

workers’ compensation benefits and (2) appellees and Emerald were subscribers

pursuant to an Owner Controlled Insurance Program (OCIP). See id. § 408.001 (providing

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that workers’ compensation is the exclusive remedy when the employer is a subscriber).

Appellees attached evidence showing that Christus Health purchased an OCIP from the

insurance broker/administrator Alliant Insurance Services, Inc. (Alliant) and that Christus

Health contractually prohibited contractors and subcontractors from working on the

project unless they had enrolled in the OCIP. Appellees attached summary judgment

evidence showing that McCarthy, Brandt, and Emerald had enrolled in the OCIP and were

covered by the workers’ compensation insurance policy purchased by Christus Health

from Alliant. Appellees also provided summary judgment evidence showing that Mariscal

received benefits from Alliant.

The record shows that on July 31, 2018, a visiting judge, the Honorable Jose

Manuel Bañales, presided over a hearing on appellees’ motion and took the matter under

advisement. Subsequently, another presiding judge, the Honorable David Stith, denied

appellees’ motion. Appellees filed a petition for writ of mandamus in this Court “seeking

to compel [Judge Bañales] to: (1) vacate its September 7, 2018 order denying their motion

for summary judgment; (2) admit the affidavits attached to relators’ motion for summary

judgment into evidence; and (3) render summary judgment in favor of relators [(appellees

here)].” See In re McCarthy Bldg. Cos., Inc., No. 13-19-00065-CV, 2019 WL 961966, at

*1 (Tex. App.—Corpus Christi–Edinburg Feb. 27, 2019, orig. proceeding) (mem. op.).

In our memorandum opinion addressing appellees’ petition for writ of mandamus,

we noted that Judge Bañales “informed us that, although he presided over the hearing

for summary judgment at issue in this original proceeding, he did not sign the September

7, 2018 order subject to review, and that order was instead signed by the Honorable David

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Stith, the Presiding Judge of the 319th District Court of Nueces County, Texas.” Id. This

Court concluded that the matter was not “properly before us” and denied the petition for

writ of mandamus without prejudice so that the new judge of the 148th District Court, the

Honorable Carlos Valdez, could hold further proceedings on the matter within his sound

discretion. Id.

Appellees filed a motion for reconsideration of their motion for summary judgment

asserting the TWCA’s exclusive remedy defense and attaching and incorporating their

originally filed traditional motion for summary judgment and summary judgment evidence.

Mariscal filed a response objecting to appellees’ evidence and arguing that: (1) “the facts

do not support multi-tier protection/statutory ‘exclusive remedy’ bar against [his] claims”;

(2) “all of the construction contracts submitted and relied upon by [appellees] include[] a

clear and unambiguous clause that each and all, whether general contractor,

subcontractor, or sub-subcontractor were ‘independent contractors’ while performing their

assigned work, and therefore do not receive the multi-tier protection” of the OCIP; (3) “the

facts of this case [are] outside the holding by the Texas Supreme Court in HCBeck, Ltd.

v. Rice, 284 S.W.3d 349 (Tex. 2009)”; and (4) he raised a question of fact.

The trial court granted appellees’ motions. This appeal followed.

II. STANDARD OF REVIEW

In a traditional motion for summary judgment, the movant has the burden of

showing that no genuine issue of material fact exists and that it is entitled to judgment as

a matter of law. TEX. R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546,

548 (Tex. 1985). If the movant’s motion and summary judgment proof facially establish a

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right to judgment as a matter of law, the burden shifts to the non-movant to raise a material

fact issue sufficient to defeat summary judgment. Centeq Realty, Inc. v. Siegler, 899

S.W.2d 195, 197 (Tex. 1995). A defendant seeking a traditional motion for summary

judgment must either conclusively disprove at least one element of each of the plaintiff’s

causes of action or plead and conclusively establish each essential element of an

affirmative defense. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995) (per curiam). We

review a summary judgment de novo to determine whether a party’s right to prevail is

established as a matter of law. Dickey v. Club Corp. of Am., 12 S.W.3d 172, 175 (Tex.

App.—Dallas 2000, pet. denied).

In our de novo review of a trial court’s summary judgment, we consider all the

evidence in the light most favorable to the nonmovant, crediting evidence favorable to the

nonmovant if reasonable jurors could and disregarding contrary evidence unless

reasonable jurors could not. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.

2006). The evidence raises a genuine issue of fact if reasonable and fair-minded jurors

could differ in their conclusions in light of all of the summary-judgment evidence.

Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755–56 (Tex. 2007).

III. INCOMPATIBLE DECISIONS

By his first issue, Mariscal contends that reversal is warranted in this case due to

the discrepancy between Judge Stith’s and Judge Valdez’s decisions. Specifically, as we

understand it, Mariscal argues that a question of fact has been shown because prior to

Judge Valdez granting summary judgment, Judge Stith denied appellees’ motion for

summary judgment. That is Mariscal argues that because reasonable minds differed in

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their opinion in this case, a question of fact has been shown to exist. Mariscal cites no

authority, and we find none, supporting a conclusion that a question of fact exists, thereby

precluding summary judgment, solely because two judges reach a different conclusion

regarding whether to grant or deny a motion for summary judgment. We decline

Mariscal’s invitation to make such a novel conclusion. Therefore, we overrule Mariscal’s

first issue.

IV. ADMISSION OF EVIDENCE

By his second issue, Mariscal contends that the trial court should have excluded

all of appellees’ summary judgment evidence. Specifically, Mariscal argues as follows:

a) the Affidavits do not identify, or attach what “documents” were
reviewed in preparation for each of the Affidavits; TEX. R. CIV. P.
166a(d); McConathy v. McConathy, 869 S.W.2d 341, 342 n.2 (Tex.
1994);

b) the Affidavits do not address how each of the Affiants has “personal
knowledge” of the “regular practice” of the entities to “make” and
“receive” the Affidavit statements which refer to “condition,” “opinion,”
and “diagnosis” which none of the attached documents contain or
specify inasmuch as none of the Affiants have medical credentials to
attest under oath to such medical “facts” (with the exception of the
DWC-73 medical form signed by a medical doctor of whom the
Affiant has no personal knowledge, all the Affidavits exhibits are
insurance forms and schedules or contract documents), and
therefore, all of Defendants’ Affidavits are not “clear, positive, and
direct, otherwise credible and free from contradictions and
inconsistencies,” and which none of the Affiants have been proven
competent to testify about; TEX. R. CIV. P. 166a(c); New York Times
Inc. v. Isaacks, 146 S.W. 3d 144, 164 (Tex. 2004); Casso v. Brand,
776 S.W.2d 551, 558 (Tex. 1989);

c) the Affiants do not state how each of them have “personal
knowledge” of any of the documents attached to their Affidavits,
particularly when the Affiants are in locations shown by the Notary
Stamp on each Affidavit that are separate and distinct from the
Project site; TEX. R. CIV. P. 166a(f); TEX. R. EVID. 602; Kerlin v. Arias,

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 274 S.W.3d, 666, 668 (Tex. 2008); Ryland Grp., Inc. v. Hood, 924
S.W.2d 120, 122 (Tex. 1996);

d) the Appellees do not address how the attached “haystack” of policy
documents and Certificates that are shown to be in effect during a
timeframe outside the timeframe of the underlying incident in this
cause—to-wit July 10, 2017—are relevant to the issues presented in
their motion; TEX. R. EVID. 402; E.I. du Pont de Nemours & Co. v.
Robinson, 923 S.W.2d 549, 556 (Tex. 1995);

e) the Appellees do not address how the attached “haystack” of policy
documents and Certificates that have different and distinct policy
identifiers from the one under which the Plaintiff received his
benefits, are relevant to the issues presented in their motion and
meet the “ultimate responsibility for obtaining alternate workers’
compensation in the event FMR [Owner] terminated the OCIP” test
for the general contractor under TEX. LABOR CODE § 406.123; TEX. R.
EVID. 402; E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d
549, 556 (Tex. 1995); HCBeck Ltd. v. Rice, 52 S.W.3d 349, 352-352
(Tex. 2009); and

f) in particular, the second Affidavit by Ms. Barlow, attached to the
Appellants’/Defendants’ Reply on July 27, 2018 without the requisite
leave of court under TEX. R. CIV. P. 166a(c), includes
incomprehensible statements to include an explanation affirming that
a Notice letter (attached to Plaintiff’s Response as Exhibit 3),
addressed to Plaintiff’s counsel to assert a lien against Plaintiff’s
counsel for negligence in inasmuch as the “accident [incident at issue
in this case], occurred under circumstances creating liability against
you for injuries sustained by reason of your negligence,” and further,
the sworn statement that: Regarding my Exhibit 3 to Plaintiff’s
counsel, my statements regarding a lien refer to a lien against
Plaintiff. In making that statement, I had no expectancy that such lien
would be satisfied from a third-party other than Plaintiff. is a clear
indication that the second Affidavit by Ms. Barlow is not “clear,
positive, and direct, otherwise credible and free from contradictions
and inconsistencies,” inasmuch as it identifies the Plaintiff as a “third-
party,” and seeks to subrogate workers’ compensation benefits
directly from the Plaintiff, which are protected against such intended
subrogation by the workers’ compensation carrier, sworn statements
by Affiant which are misstates of fact and law, and are therefore,
defective. TEX. LABOR CODE § 408.201; TEX. CON. art. XVI, § 28;
Haynes v. Haynes, 178 S.W.3d. 350, 355 (Tex. App.—Houston [14th
Dist.] 2005, pet denied).

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 Rule 38.1(i) requires a party to make “a clear and concise argument for the

contentions made, with appropriate citations to authorities and to the record” in its

appellate brief. TEX. R. APP. P. 38.1(i). “To comply with Rule 38.1, appellants must provide

such a discussion of the facts and the authorities relied upon to maintain the point at

issue.” Lowry v. Tarbox, 537 S.W.3d 599, 619 (Tex. App.—San Antonio 2017, pet.

denied) (citing Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 128

(Tex. App.—Houston [1st Dist.] 2002, pet. denied)). “This is not done by merely uttering

brief conclusory statements, unsupported by legal citations.” Id. “When appellants fail to

discuss the evidence supporting their claim or apply the law to the facts, they present

nothing for review.” Id. at 620 (citing Bolling v. Farmers Branch Indep. Sch. Dist., 315

S.W.3d 893, 895–96 (Tex. App.—Dallas 2010, no pet.)). An appellate issue is waived by

failure to offer argument, provide appropriate record citations, or a substantive analysis.

Id.

After setting out the above-stated list of alleged deficiencies in appellees’ summary

judgment evidence, Mariscal sets out the procedural history of his objections in the trial

court and then reiterates that he provided the trial court with objections that required it to

exclude appellees’ evidence. However, other than the assertions listed above with the

citations listed after each allegation, Mariscal has not presented any substantive legal

argument applying the legal authorities cited to the facts of this case. See TEX. R. APP. P.

38.1(i). Mariscal merely recites the list of global and unsubstantiated allegations with

general citation to authority, without explaining how that authority cited applies to the facts

here. Thus, Mariscal has failed to provide any substantive analysis in such a manner as

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to demonstrate that the trial court committed reversible error when it did not exclude

appellees’ summary judgment evidence. We are prohibited from making Mariscal’s

argument for him, and we refuse to do so. We have no duty to ascertain how the law as

set out in the authority cited by Mariscal applies to the facts in this case, and we are

prohibited from researching the law and then fashioning a legal argument for him when

he has failed to do so. See Canton-Carter v. Baylor Coll. of Med., 271 S.W.3d 928, 932

(Tex. App.—Houston [14th Dist.] 2008, no pet.); see also Atkinson v. Sunchase IV

Homeowners Ass’n, Inc., No. 13-17-00691-CV, 2020 WL 2079093, at *2 (Tex. App.—

Corpus Christi–Edinburg Apr. 30, 2020, no pet.) (mem. op.). Therefore, we overrule

Mariscal’s second issue.

V. TWCA

“The purpose of the [TWCA] is to provide employees with certainty that their

medical bills and lost wages will be covered if they are injured.” HCBeck, Ltd., 284 S.W.3d

at 350. An employee benefits from workers’ compensation insurance benefits “because

it saves the time and litigation expense inherent in proving fault in a common law tort

claim.” Id. “Recovery of workers’ compensation benefits is the exclusive remedy of an

employee covered by workers’ compensation insurance coverage . . . against the

employer or an . . . employee of the employer.”1 TEX. LAB. CODE ANN. § 408.001(a); TIC

Energy & Chem., Inc. v. Martin, 498 S.W.3d 68, 69 (Tex. 2016). Thus, if an employer

subscribes to workers’ compensation insurance benefits, and is then sued by a covered

1 An exception, not applicable here, applies to those claims involving the death of an employee
caused by an employer’s intentional or grossly negligent conduct. TEX. LAB. CODE ANN. § 408.001.

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employee, the employer may “assert the statutory exclusive remedy defense against the

tort claims of its employees for job related injuries” and generally cannot be held liable in

tort for those injuries HCBeck, Ltd., 284 S.W.3d at 350. A general contractor may invoke

the exclusive remedy defense provided to a subscribing employer “if, pursuant to a written

agreement, it ‘provides’ workers’ compensation insurance coverage to the subcontractor

and its employees.”2 Id. (citing TEX. LAB. CODE ANN. §§ 406.123(a), 408.001(a)).

Owners, contractors, and subcontractors may agree to an OCIP, which “is

designed to secure insurance, including workers’ compensation insurance, at a

reasonable price for all workers at a job site or construction site.” TIC Energy & Chem.,

Inc., 498 S.W.3d at 70 n.7 (citing HCBeck, Ltd., 284 S.W.3d at 359–60 & n.6). OCIPs

benefit the parties because they “allow the highest-tiered entity to ensure quality and

uninterrupted coverage to the lowest-tiered employees.” Id. OCIPs save costs, secure

better coverage, and have better safety programs. HCBeck, Ltd., 284 S.W.3d at 360

(citing and quoting Am. Protection Ins. v. Acadia Ins., 814 A.2d 989, 991 n.1 (Me. 2003)).

Subcontractor’s employees who do not opt out of workers’ compensation coverage waive

their right to sue a general contractor for their injuries when a general contractor is

deemed the employer of a subcontractor’s employees and provides workers’

compensation insurance to them. Hunt Const. Grp., Inc. v. Konecny, 290 S.W.3d 238,

243 (Tex. App.—Houston [1st Dist.] 2008, pet. denied).

In other words, the general contractor enrolled in workers’ compensation insurance

2 A general contractor is “a person who undertakes to procure the performance of work or a service,
either separately or through the use of subcontractors.” Id. § 406.121(1). A subcontractor is 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.” Id. § 406.121(5).

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is immune from claims brought by a subcontractor’s employee and is entitled to the

exclusive remedy defense. See TEX. LAB. CODE ANN. §§ 406.123 (“A general contractor

and a subcontractor may enter into a written agreement under which the general

contractor provides workers’ compensation insurance coverage to the subcontractor and

the employees of the subcontractor. . . . An agreement under this section makes the

general contractor the employer of the subcontractor and the subcontractor’s employees

only for purposes of the workers’ compensation laws of this state.”), 408.001(a) (setting

out the exclusive remedy defense). “A general workplace insurance plan that binds a

general contractor to provide workers’ compensation insurance for its subcontractors and

its subcontractors’ employees achieves the Legislature’s objective to ensure that the

subcontractors’ employees receive the benefit of workers’ compensation insurance.” TIC

Energy & Chem., Inc., 498 S.W.3d at 69.

A. Failure to Prove Ultimate Responsibility

By his third issue, Mariscal argues that under HCBeck in order for McCarthy to

establish that it provided workers’ compensation insurance, it must have agreed that it

was “ultimately responsible for obtaining workers’ compensation insurance in the event

[Christus Health] terminate[d] the OCIP.” 284 S.W.3d at 351–52. Mariscal does not

disagree that an agreement to provide workers’ compensation insurance existed pursuant

to the OCIP; instead, he argues that McCarthy cannot invoke the exclusive remedy

defense because it did not agree to provide worker’s compensation coverage in the event

the OCIP was discontinued.

In TIC Energy & Chemical, Inc., the Texas Supreme Court discussed its holding in

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HCBeck as follows:

In HCBeck, Ltd. v. Rice, we explained that a “general contractor who has,
pursuant to a written agreement, purchased a workers’ compensation
insurance policy covering its subcontractors and its subcontractors’
employees . . . becomes the statutory employer of its subcontractor’s
employees, and is thus entitled to the benefits conferred on employers by
the Act.” Furthermore, because a contractor can “‘provide[ ]’ workers’
compensation, even when it has not purchased the insurance
directly, . . . multiple tiers of subcontractors [thereby] qualify as statutory
employers entitled to the exclusive-remedy defense.” “Such a scheme,” we
observed, “seems consistent with the benefits offered by controlled
insurance programs, which are designed to minimize the risk that the
subcontractors’ employees will be left uncovered.” We further explained that
a construction and application of section 406.123 that “favors blanket
coverage to all workers on a site” accords with legislative intent and the
“Legislature’s ‘decided bias’ for coverage.”

498 S.W.3d at 74.

In its analysis of the appellant’s argument that the general contractor did not

provide coverage to its subcontractors and their employees, the HCBeck Court pointed

out that the general contractor provided insurance because it agreed to do so, and the

contract stated that the general contractor would pay for the insurance if there were a

lapse in the OCIP. See HCBeck, Ltd., 284 S.W.3d at 360. The HCBeck Court emphasized

that its primary concern was whether the general contractor did more than just require the

lower tiered contractors to obtain workers’ compensation insurance and not whether one

could imagine a scenario where the general contractor might fail to do so. Id. at 355–56;

see also Cook v. White Const. Co., No. 03-10-00114-CV, 2011 WL 3371542, at *4 (Tex.

App.—Austin Aug. 4, 2011, no pet.) (mem. op.). Thus, the HCBeck Court’s analysis of

whether the general contractor provided workers’ compensation insurance to its

subcontractors focused on whether a contingency plan was in place that prevented the

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subcontractors from going without workers’ compensation insurance if a lapse in the

OCIP occurred. See 284 S.W.3d at 360. Only under that scenario could the general

contractor claim that it “provided” the coverage pursuant to the TWCA and as the court

defined the term “provide.” Id. In other words, to be entitled to the exclusive remedy

defense, the general contractor must ensure that if a lapse in the OCIP occurs, the

subcontractors are not able to opt out of coverage. See id.

We find the reasoning in Cook v. White Construction Co. persuasive. See 2011

WL 3371542, at *4. In that case, the court did not interpret HCBeck as standing for the

proposition that a general contractor only “provides” workers’ compensation insurance if

it promises to pay for replacement coverage in the event of a lapse in the OCIP. Id.

Instead, the Cook court explained that the general contractor must ensure that the

employees are covered by workers’ compensation insurance throughout the project, and

it implied that the general contractor promising to pay for the replacement coverage if the

owner discontinues the OCIP is not the only way to make that showing. Id.

In Cook, the appellant argued that in HCBeck, the owner’s “OCIP said [the general

contractor] ‘shall’ obtain insurance for [appellant] if the OCIP lapsed, whereas” the OCIP

in Cook said that the general contractor and subcontractors would be “expected to”

provide insurance if the OCIP lapsed. See id. The appellant claimed using the term “will

be expected to” was “precatory at best,” but it was not mandatory like the “shall” which

was used in the OCIP in HCBeck. Id. The Cook court stated that in HCBeck the Texas

Supreme Court “emphasized that its primary concern was whether [the general

contractor] actually provided workers’ compensation insurance, not whether one could

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imagine a scenario where it might fail to.” Id. The Cook court rejected the appellant’s

argument and determined the contract had indeed required the general contractor to

provide workers’ compensation insurance if the OCIP lapsed. Id.

In Powell, this Court also interpreted HCBeck. Powell v. Valero Energy Corp., No.

13-18-00209-CV, 2019 WL 961958, at *3 (Tex. App.—Corpus Christi–Edinburg Feb. 28,

2019, pet. denied) (mem. op.). In Powell, VRT, the owner of the premises, hired Qualspec

to work on a project, and it required Qualspec to enroll in an OCIP. Id. The appellant,

Qualspec’s employee, was injured while working on the project, and he sued VRT for

negligence. Id. The appellant maintained “that, because VRT could have required

Qualspec to procure its own [workers’ compensation] coverage, VRT did not agree to

‘provide’ coverage.” Id.

We looked at the common meaning of the word “provide” to determine “whether

VRT provided coverage by written agreement.” Id. (citing Halferty v. Flextronics Am., LLC,

545 S.W.3d 708, 713 (Tex. App.—Corpus Christi–Edinburg 2018, pet. denied)). We said

that under the labor code “provide” means “to supply or make available.” Id. We noted

that “a general contractor does not provide coverage simply by requiring its

subcontractors to secure their own coverage.” Id. (citing Flextronics, 545 S.W.3d at 714).

“Rather, the general contractor must do something more than pass the onus of obtaining

coverage to the subcontractor” and “must assure coverage by putting ‘something in the

pot.’” Id. We concluded that because “VRT required Qualspec to participate in its ROCIP

on qualifying projects, and with respect to [the appellant], it provided workers’

compensation coverage through the ROCIP,” it had “done more than simply pass the

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onus of obtaining coverage to a subcontractor.” Id.

The appellant argued “that the Agreement allow[ed] VRT to choose if it provides

coverage through the ROCIP, but the Agreement impose[d] no obligation for VRT to

provide coverage.” Id. at *4. We acknowledged that the Agreement provided that

coverage was not available for certain other services, but we concluded that “it is of no

consequence that coverage might not have been made available for other services and

‘we look at what did happen, not what might happen.’” Id. (citing HCBeck, 284 S.W.3d at

359 n.4). We then pointed out that “VRT determined that Qualspec's inspection services

at the Refinery was qualifying ‘Work,’ and it required Qualspec to enroll in its ROCIP”;

therefore, we concluded that the appellant “received compensation under the applicable

policy for his injuries.” Id. We stated that “[e]xtending the exclusive remedy defense to

VRT under such circumstances is consistent with the TWCA's ‘decided bias’ for

coverage.” Id.

Here, the summary-judgment record establishes that McCarthy, Brandt, Emerald,

and all subcontractors were required to enroll in workers’ compensation insurance

provided by the OCIP and that each of the entities complied by enrolling with the OCIP

insurance provider, Alliant. See Funes v. Eldridge Elec. Co., 270 S.W.3d 666, 671–73

(Tex. App.—San Antonio 2008, no pet.) (concluding in the context of an OCIP that a

general contractor that complies with the terms of the OCIP has provided workers’

compensation to its employees). In its contracts with its subcontractors, McCarthy

required all the subcontractors to enroll in the OCIP, and it is undisputed that they did so.

It is undisputed that the subcontractors, including Brandt and Emerald, had workers’

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compensation insurance pursuant to the OCIP and at no time went without it. It is

undisputed that the OCIP never lapsed, and as a result, Mariscal received his benefits

from Alliant.

The contract between McCarthy and Brandt states, “All insurance requirements

shall flow down to subcontractors and suppliers of any tier and any flow down of these

requirements to such subcontractors and suppliers of any tier does not relieve

Subcontractor of its obligation to provide the insurance outlined herein.” The contract

between Brandt and Emerald incorporated the McCarthy/Brandt contract. The summary

judgment evidence establishes that none of the subcontractors would have been allowed

to work on the project without enrolling in the OCIP. The OCIP specifically stated, “Access

to the project site will not be permitted until the enrollment [in the OCIP] is complete.”

Finally, Mariscal acknowledges that had the OCIP lapsed, the contract stated that

“[t]he cost of the replacement coverage shall be at Owner’s expense.” Therefore, although

the contract may not have specifically stated that McCarthy would be responsible for

paying for the replacement insurance policies, the contract required Christus Health to do

so, and therefore, McCarthy, Brandt, Emerald, and their employees were not at risk of

losing coverage even if the OCIP lapsed. HCBeck, Ltd., 284 S.W.3d at 350; see also

Powell, 2019 WL 961958, at *3.

An owner who procures the services of a contractor is considered a general

contractor for purposes of the TWCA and is entitled to the exclusive remedy defense. See

Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 438 (Tex. 2009) (op. on reh’g)

(“[A] general contractor is a person who takes on the task of obtaining the performance

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of work. That definition does not exclude premises owners . . . .”). Here, it is undisputed

that Christus Health and McCarthy signed a contract for McCarthy to perform work on the

project. This evidence supports a conclusion that Christus Health is McCarthy’s employer

for purposes of the TWCA. See id.; see also Lazo v. Exxon Mobil Corp., No. 14-06-00644-

CV, 2009 WL 1311801, at *2 (Tex. App.—Houston [1st Dist.] May 7, 2009, no pet.) (mem.

op.) (deeming a premises owner a statutory employer where the agreement stated that

premises owner could provide OCIP coverage and it did so). Christus Health’s promise

to purchase replacement insurance if a lapse in the OCIP occurred “indicates that the

higher-tier contractor ha[d] the ultimate obligation to ensure that the employees of the

lower-tier subcontractors [were] covered.” See HCBeck, Ltd., 284 S.W.3d at 353. The

evidence thus establishes that a contract existed that provided workers’ compensation

insurance even if the OCIP lapsed, and under pertinent authority, so long as an upper tier

contractor does this, all lower tier contractors are covered. TIC Energy & Chem., Inc., 498

S.W.3d at 74.

Nonetheless, Mariscal argues that Christus Health’s promise to pay for

replacement insurance if a lapse in the OCIP occurred proves that McCarthy did not have

“ultimate responsibility” for workers’ compensation coverage on the project. However, in

HCBeck, the Texas Supreme Court explained that § 406.123(a)’s exclusive remedy

defense “does not require a general contractor to actually obtain the insurance, or even

pay for it directly.” 284 S.W.3d at 353. The HCBeck Court held that although the general

contractor in that case was not required to pay for the coverage that was provided to the

subcontractor by the owner under the OCIP, the general contractor still “provided” the

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coverage to the subcontractors. Id. We conclude that the same reasoning applies here.

Thus, although McCarthy was not required to pay for the replacement coverage had a

lapse in the OCIP occurred, Christus Health would have supplied it, and Emerald would

have been covered if a lapse in the OCIP occurred. This reasoning aligns with TIC Energy

& Chem., Inc., which states that a contractor “‘provide[s]’ workers’ compensation, even

when it has not purchased the insurance directly . . . multiple tiers of subcontractors

[thereby] qualify as statutory employers entitled to the exclusive-remedy defense.” 498

S.W.3d at 74.

To hold to the contrary that McCarthy did not provide the insurance, would produce

an unjust and unreasonable result. See Funes, 270 S.W.3d at 671. Here, Christus Health,

the premises owner, has implemented an OCIP and contractually required its general

contractor, McCarthy, to contractually require all subcontractors to enroll in the OCIP, and

Christus Health agreed to purchase replacement coverage if a lapse in the OCIP

occurred. To conclude that McCarthy did not “provide” the insurance would preclude

protection of the general contractor, whom the Legislature clearly intended to protect

under subsections 406.123(a) and (e). See id. at 672.

In that hypothetical, the general contractor would be required to procure a
second compensation insurance program in order to qualify under the
statute as an “employer” who “provides” insurance, and thereby obtain
[TWCA’s] protection. This, however, makes little sense because of its
redundancy—the premises owner has already established a program in
which all, including the general contractor, are required to enroll, and under
which all, including the general contractor, are intended to be protected. The
resulting “double coverage” for, in effect, single protection is superfluous,
and outside any reasonable intent of the Legislature.

Id.

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 Accordingly, under the applicable authority, we conclude that McCarthy did more

than merely require that Emerald enroll in workers’ compensation insurance and therefore

met the definition of “provide” as used in the TWCA. See HCBeck, 284 S.W.3d at 359 n.4

(explaining that the fact that the premises owner “was not contractually bound to continue

the OCIP” did not preclude statutory employer status for general contractor because the

general contractor promised to provide it); Etie v. Walsh & Albert Co., Ltd., 135 S.W.3d

764, 765 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) (holding that a general

contractor was a statutory employer where it exercised its option to provide workers'

compensation coverage); see also Cook, 2011 WL 3371542, at *4 (concluding that the

general contractor was a statutory employer where the premises owner could have

discontinued the OCIP coverage but did not). Therefore, the evidence establishes as a

matter of law that McCarthy is deemed Brandt’s employer for purposes of the TWCA. See

TEX. LAB. CODE ANN. § 406.123(e). Mariscal does not challenge the trial court’s conclusion

that Brandt is Emerald’s deemed employer for purposes of the exclusive remedy defense.

See TIC Energy & Chem., Inc., 498 S.W.3d at 70. Accordingly, appellees met their burden

to show that they were entitled to invoke the exclusive remedy defense, and the burden

shifted to Mariscal to show that a question of fact existed to defeat summary judgment.

We overrule Mariscal’s third issue.

D. Independent Contractor

Mariscal by his fourth and fifth issues contends that Emerald, McCarthy, and

Brandt were independent contractors and were therefore not entitled to assert TWCA’s

exclusive remedy defense. Appellees cite § 406.123’s exception to § 406.122(b)’s

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general rule that subcontractors are generally independent contractors, arguing that

under the exception, McCarthy was the deemed employer of its subcontractors and their

employees and Brandt was the deemed employer of Emerald and its employees.

Therefore, according to appellees, § 406.122(b) does not apply here.

“[T]he purposes of the [TWCA] are best served by deeming immune from suit all

subcontractors and lower-tier subcontractors who are collectively covered by workers’

compensation insurance.” Hunt Const. Grp., Inc., 290 S.W.3d at 247. One of the

Legislature’s “purposes in passing the [TWCA] was to ensure injured workers could obtain

reimbursement for medical expenses related to workplace injuries without the time,

money, and difficulty of a negligence lawsuit.” Id. (citing Lawrence v. CDB Servs., Inc., 44

S.W.3d 544, 555 (Tex. 2001) (Baker, J., dissenting)). In addition, the TWCA encourages

“employers to participate in workers’ compensation by precluding nonsubscribing

employers from relying on common-law defenses to negligence in defending against their

employees’ personal-injury actions.” Id. (citing Kroger Co. v. Keng, 23 S.W.3d 347, 350

(Tex. 2000)).

In TIC Energy, the Texas Supreme Court held that § 406.122(b) is the general rule

and that § 406.123 sets out a permissive exception. 498 S.W.3d at 71. Section 406.122(b)

states,

A subcontractor and the subcontractor’s employees are not employees of
the general contractor for purposes of this subtitle if the subcontractor: (1)
is operating as an independent contractor; and (2) has entered into a written
agreement with the general contractor that evidences a relationship in which
the subcontractor assumes the responsibilities of an employer for the
performance of work.

TEX. LAB. CODE ANN. § 406.122(b). Section 406.123, entitled “Election to Provide

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Coverage; Administrative Violation,” states that “[a] general contractor and a

subcontractor may enter into a written agreement under which the general contractor

provides workers’ compensation insurance coverage to the subcontractor and the

employees of the subcontractor.” Id. § 406.123(a). Section 406.123 also states, “An

agreement under this section makes the general contractor the employer of the

subcontractor and the subcontractor’s employees only for purposes of the workers’

compensation laws of this state.” Id. § 406.123(e). Moreover, employees may have more

than one employer within the meaning of the TWCA, and each employer may raise the

exclusive remedy provision as a bar to the employee’s claims. See Wingfoot Enters. v.

Alvarado, 111 S.W.3d 134, 143 (Tex. 2003); Etie, 135 S.W.3d at 768.

In general, under § 406.122(b), subcontractors and their employees are

independent contractors, so long as the parties agree that workers’ compensation

insurance will be provided pursuant to an OCIP; however, under § 406.123, all tiers of the

contractors are not considered independent contractors for purposes of the TWCA. See

TEX. LAB. CODE ANN. § 406.122(b), 123; HCBeck, Ltd., 284 S.W.3d at 353 (explaining that

because the general contractor provided workers’ compensation to the subcontractors

pursuant to an OCIP, the general contractor was entitled to the exclusive remedy defense

as an employer). In that case, the general contractor is deemed the employer of the

subcontractor and the subcontractor’s employees for purposes of the workers’

compensation laws of this state. See TEX. LAB. CODE ANN. § 406.123(e); HCBeck, Ltd.,

284 S.W.3d at 353 (recognizing general contractor’s status as employer of subcontractors

when general contractor pursuant to an OCIP agreed to provide workers’ compensation

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insurance to the subcontractors).

Here, we have already concluded that workers’ compensation insurance had been

provided upstream and downstream. Therefore, we find “no reason why this shift in status

from ‘independent contractor’ to ‘deemed employee,’” with its concomitant protections,

should be denied to any tiers. See Etie, 135 S.W.3d at 767; see also Powell, 2019 WL

961958, at *3 (“The TWCA’s ‘deemed employer/employee relationship extends

throughout all tiers of subcontractors.’”). A subcontractor retains its status as an

independent contractor by choosing not to participate in workers’ compensation

coverage. Etie, 135 S.W.3d at 768. However, here, McCarthy, Brandt, and Emerald all

chose to participate and were in fact required to participate in the OCIP providing workers’

compensation insurance. Therefore, we conclude that the TWCA’s deemed

employer/employee relationship extended throughout all tiers of the subcontractors under

§ 406.123 and that McCarthy, Brandt, and Emerald were not independent contractors for

purposes of the TWCA. See TEX. LAB. CODE ANN. § 406.123; TIC Energy, 498 S.W.3d at

70; Etie, 135 S.W.3d at 768; see also Powell, 2019 WL 961958, at *3. We overrule

Mariscal’s fourth and fifth issues.3

VI. SUBROGATION

By his sixth issue, Mariscal contends that a subrogation lien establishes his third-

party claims. Specifically, Mariscal complains of a letter from appellees’ attorney he

alleges contains “statements [that] are a complete misrepresentation of the law made to

3Mariscal recognizes that the exception applies when a general contractor has provided workers’
compensation insurance. However, he disagrees with our conclusion that McCarthy did so.

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the Court, under oath” and that the submission of those “statements, made under oath,

is sanctionable.” Mariscal then repeats his claims, without substantive legal analysis, that

appellees failed in their summary judgment burden pursuant to the caselaw. However,

Mariscal does not state or explain how the letter would entitle him to reversal of the trial

court’s summary judgment. Accordingly, we conclude that this issue is inadequately

briefed. See TEX. R. APP. P. 38.1(i). We overrule Mariscal’s sixth issue.

VII. CONCLUSION

We affirm the trial court’s judgment.

JAIME TIJERINA
Justice

Delivered and filed on the
25th day of March, 2021.

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