IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-40250
_____________________
JOHN A. BARNES,
Plaintiff-Appellant,
v.
CALGON CORPORATION and
MOBIL OIL CORPORATION,
Defendants,
CALGON CORPORATION,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
(1:93 CV 616)
_________________________________________________________________
September 21, 1995
Before KING, SMITH, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant John A. Barnes filed suit for negligence
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
1
against Calgon Corporation and Mobil Oil Corporation in state
court in Jefferson County, Texas, alleging that he was injured
when he was overcome by fumes while washing the tank of Calgon's
chemical transport vehicle. After timely removal to the federal
district court for the Eastern District of Texas, the court
granted defendant Calgon Corporation's motion for summary
judgment on the grounds that Calgon was Barnes's employer and
thus insulated from liability under the exclusive remedy
provision of the Texas Workers' Compensation Act. Barnes timely
appealed. Because we agree that Calgon is entitled to summary
judgment, we affirm.
I. FACTUAL AND PROCEDURAL HISTORY
Plaintiff-Appellant John A. Barnes was, at all times
relevant to the current action, a truck driver who, for
approximately twelve years, was employed by Southwestern
Professional Truck Driver Service, a division of Pacemaker Driver
Service, Inc. ("Pacemaker"). In 1980, Pacemaker, through
Southwestern Professional Truck Driver Service, contracted with
Calgon Corporation ("Calgon") to provide Calgon with truck
drivers. In this contract, Pacemaker agreed to retain most
administrative employment functions, such as bonding the drivers,
disciplining and removing employees, maintaining regulatory
reports, records, and data, paying the drivers' wages, benefits
and workers' compensation insurance, maintaining employment and
payroll records, and providing cash advances for drivers.
2
Pacemaker also agreed to indemnify Calgon for all claims by its
employees against Calgon. The contract assigned Calgon the
responsibility to "dispatch, direct the loading and unloading of
vehicles; select routes, direct the drivers as to pick-ups,
deliveries, and other matters related to the day to day operation
of the vehicles utilized by Calgon." Calgon also assumed the
responsibility to maintain records, check drivers' logs and
reports, and provide and insure the vehicles. Pursuant to this
contract, Barnes drove for Calgon during the entire course of his
twelve-year employment with Pacemaker.
On May 20, 1993, Barnes delivered a load of ChlorKill 8816
from Calgon's facilities in LaPorte, Texas, to Mobil's operations
in Beaumont, Texas. After unloading the chemicals, Barnes was
injured when he was overcome by fumes while washing the inside of
the tank in preparation for a new load of chemicals. Barnes
alleges that Calgon is liable in negligence for his injuries by
failing to instruct him, supervise him, provide him with
necessary safety equipment and information, and provide him with
a safe working environment.1 Barnes sought damages for medical
expenses, pain and suffering, and loss of income.2
Calgon moved for summary judgment on two grounds. First,
1
Barnes also named Mobil as a defendant, but
subsequently dismissed his claim against Mobil after reaching
settlement with that defendant.
2
Calgon filed a third-party complaint against Pacemaker,
seeking indemnity from Pacemaker for Barnes's claims against
Calgon. The district court granted Calgon's motion for summary
judgment against Pacemaker, and held that Pacemaker was obligated
to indemnify Calgon for its legal fees.
3
Calgon argued that Barnes's claim against it was barred by the
exclusive remedy provision of the Texas Workers' Compensation
Act. Second, Calgon argued that any injuries incurred by Barnes
were entirely the result of his own negligence and not any
negligence by Calgon.
In an opinion filed on December 15, 1994, the district court
granted Calgon's motion for summary judgment. First, concluding
that "[c]ourts look to specific facts of a case only when no
contract exists or when the contract terms are ambiguous as to
which party has the right to control the employee", the district
court held that "the contract itself conclusively establishes
that plaintiff was an employee of Calgon for purposes of the
Workers' Compensation Act." Second, the district court held
that, under Texas law, even if Barnes is considered a "borrowed
servant," Calgon is considered his employer and therefore
shielded from liability under the Workers' Compensation Act.
Having concluded that Calgon is immune from liability as a matter
of law, the district court did not address Calgon's second
argument, and entered judgment in favor of Calgon.
II. STANDARD OF REVIEW
We review the granting of summary judgment de novo, applying
the same criteria used by the district court in the first
instance. Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th Cir.
1994); Conkling v. Turner, 18 F.3d 1285, 1295 (5th Cir. 1994).
First, we consult the applicable law to ascertain the material
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factual issues. King v. Chide, 974 F.2d 653, 655-56 (5th Cir.
1992). We then review the evidence bearing on those issues,
viewing the facts and inferences to be drawn therefrom in the
light most favorable to the nonmoving party. Lemelle v.
Universal Mfg. Corp., 18 F.3d 1268, 1272 (5th Cir. 1994); FDIC v.
Dawson, 4 F.3d 1303, 1306 (5th Cir. 1993), cert. denied, 114 S.
Ct. 2673 (1994). Summary judgment is proper "if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law." FED. R. CIV. P.
56(c).
Under Rule 56(c), the party moving for summary judgment
bears the initial burden of informing the district court of the
basis for its motion and identifying the portions of the record
that it believes demonstrate the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986); Norman v. Apache Corp., 19 F.3d at 1023. If the moving
party meets its burden, the burden shifts to the non-moving party
to establish the existence of a genuine issue for trial.
Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 585-87
(1986); Norman, 19 F.3d at 1023. The burden on the non-moving
party is to do more than simply show that there is some
metaphysical doubt as to the material facts. Matsushita, 475
U.S. at 586.
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III. DISCUSSION
The sole issue on appeal in this case is whether the
district court correctly decided that Pacemaker is Barnes's
employer for the purposes of recovery for a workplace injury, and
thus immune from liability pursuant to the exclusive remedy
provision of the Texas Workers' Compensation Act.3
All parties involved agree that, under Texas law, the
employer of Barnes is the entity that had "day to day" control
over the details of Barnes's work. See, e.g., Smith v. Otis
Eng'g Corp., 670 S.W.2d 750, 751 (Tex. App. -- Houston [1st
Dist.] 1984, no writ]. Similarly, the determination of whether
an employee is a "borrowed servant" under Texas law -- thus
rendering the company that is "borrowing" the employee the
employer for purposes of the Workers' Compensation Act -- depends
on which employer had the right of control and direction over the
details and manner of the employee's daily work at the time of
the accident. Id. This is a question of fact. Id.
In this case, the district court held that the summary
judgment evidence established, as a matter of law, that Calgon
had such control over the details of Barnes's work so as to
render it Barnes's employer under Texas law. In so holding, the
district court relied exclusively on the terms of the contract
that governed the relationship between Pacemaker and Calgon.
3. See Tex. Rev. Civ. Stat. Ann. art. 8308-4.01, recodified as
Tex. Lab. Code Ann. § 408.001 (Vernon Pamph. 1995). The new
statute became effective September 1, 1993; however, the injury
in question occurred on May 20, 1993.
6
This contract specifies, in Part II, ¶ 1, that Calgon will
"dispatch, direct the loading an downloading of vehicles; select
routes, direct the drivers as to pick-ups, deliveries and other
matters related to the day to day operation of the vehicles
utilized by Calgon." Because the court viewed the contract
between Pacemaker and Calgon as "expressly assigning the right to
control," the district court concluded that it would be improper
to consider evidence outside of the contract itself.
However, Texas law is clear that "a contract between two
employers providing that one shall have the right of control over
certain employees is a factor to be considered, but it is not
controlling" in determining whether an entity is an employer for
the purposes of the exclusive remedy provision of the Texas
Workers Compensation Act. Exxon Corp. v. Perez, 842 S.W.2d 629,
630 (Tex. 1992) (opinion on motion for rehearing).4 Although the
district court cited Archem Co. v. Austin Indus., Inc., 804
S.W.2d 268, 269 (Tex. App.--Houston [1st Dist.] 1991, no writ)
for its conclusion that an unambiguous contract forecloses
further inquiry into the factual circumstances surrounding the
employment relationship, Archem merely stands for the proposition
that "if a contract between a general and special employer
expressly provides that one party has the `right to control' the
4
The district court distinguished this decision of the
Supreme Court of Texas as "a limited holding that addressed the
difficult question of determining right to control in cases where
employees are furnished with certain types of machinery to
perform specific aspects of a contract." We read no such
limiting language into the decision.
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employee, then that employer . . . is entitled to the Act's
protection from liability for negligence," and does not state
that courts are prohibited from investigating into the
circumstances of the case apart from the words of the contract.
Id. (internal citation omitted). In fact, courts are always
obligated to "review the facts of each case to determine which
entity had the `right to control' the employee's activities."
Id. at 270.
Nonetheless, even though the court was obligated to look
outside the confines of the contract to determine who was in
control of Barnes's day to day activities, Barnes has submitted
no evidence to establish a genuine issue of material fact that
the contract between Pacemaker and Calgon did not reflect the
true relationship between the parties. Rather, Barnes, for the
most part, relies only on sworn affidavits stating that he
reported daily to his supervisors at Pacemaker rather than
Calgon, that he selected his own routes, and that his behavior
was circumscribed only by the contract that governed his
relationship with Pacemaker. In other words, Barnes argues that,
by taking directions on his day to day activities from Calgon,
his day to day activities were in fact being controlled by
Pacemaker. Because, in this manner, he concedes that it was in
fact Calgon that directed his daily activities, Barnes has failed
to establish a genuine issue of material fact to preclude the
court from granting summary judgment on behalf of Calgon. The
district court's granting of summary judgment in favor of Calgon
8
was proper.
IV. CONCLUSION
For the reasons stated above, after consideration of the
contract and of all other evidence submitted by the parties, we
conclude that the district court correctly determined that Calgon
was Barnes's employer for the purposes of the exclusive remedy
provision of the Texas Workers' Compensation Act, and we
therefore
AFFIRM.
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