IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 11, 2009
No. 08-40410 Charles R. Fulbruge III
Clerk
DARRELL SIMPSON,
Plaintiff-Appellant
v.
EMPIRE TRUCK LINES, INC.,
Defendant-Appellee
Appeal from the United States District Court
for the Eastern District of Texas
Before JONES, Chief Judge, ELROD, Circuit Judge, and GUIROLA,* District
Judge.
LOUIS GUIROLA, JR., District Judge:
Darrell Simpson appeals the district court’s decision that he did not have
a claim against Empire Truck Lines, Inc., pursuant to the Texas Workers
Compensation Act (“TWCA”). Finding no error, we affirm.
I. BACKGROUND
Empire hired Rodgers Trucking to transport goods pursuant to its contract
*
District Judge of the Southern District of Mississippi, sitting by designation.
No. 08-40410
with United Parcel Service. Rodgers Trucking supplied the tractor-trailer and
two drivers, Thomas Dale Rodgers and Darrell Simpson. The lease agreement
between Empire and Rodgers Trucking stated, “Neither Contractor, nor its
employees, are to [sic] considered employees of Carrier at any time under the
circumstances or for any purpose.”
On June 14, 2005, Simpson was seriously injured when Rodgers fell asleep
and lost control of the tractor-trailer. Simpson was sleeping in the sleeper
compartment at the time of the accident. He sued Rodgers, Rodgers Trucking,
and Empire, seeking damages for the injuries he suffered in the accident.
However, he voluntarily dismissed his claims against Rodgers and Rodgers
Trucking.
Prior to trial, the district court said it determined that Rodgers was not
Empire’s statutory employee under the Federal Motor Carrier Safety
Regulations (“FMCSR”). However, the case proceeded to trial against Empire
on Simpson’s remaining claims, including respondeat superior, joint enterprise,
and principal-agent liability. The jury found in favor of Empire and determined
that Rodgers was 100 percent liable for the accident. Simpson has appealed the
adverse judgment.
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II. DISCUSSION
On appeal, Simpson argues that his status as a statutory employee under
the FMCSR establishes an employer-employee relationship for purposes of the
TWCA. The district court held that Rodgers was not a statutory employee under
the FMCSR, but on appeal, Simpson’s arguments concern whether Simpson was
a statutory employee. This discrepancy does not affect the outcome in this case.
Because Empire did not have workers’ compensation insurance, Simpson
contends that he is entitled to sue Empire for Rodgers’ negligence under the
TWCA and that Empire is foreclosed from asserting certain defenses, including
contributory negligence. See Tex. Lab. Code Ann. § 406.033 (a), (d). T h e
TWCA provides:
An owner operator and the owner operator’s employees are not
employees of a motor carrier . . . if the owner operator has entered
into a written agreement with the motor carrier that evidences a
relationship in which the owner operator assumes the
responsibilities of an employer for the performance of the work.
Tex. Lab Code § 406.122 (c). In the present case, Empire and Rodgers Trucking
executed a form that provided: “The undersigned motor carrier and the
undersigned owner/operator agree that the owner/operator assumes the
responsibilities of an employer for the performance of the work.” Thus, under
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No. 08-40410
Texas law, Simpson is not entitled to assert a claim against Empire under the
TWCA.
Relying upon White v. Excalibur Insurance Co., 599 F.2d 50 (5th Cir.
1979), Simpson asserts that federal law preempts Texas workers compensation
law on this issue. We disagree. In White, this Court held that the parties’
attempt “to create by contract an independent contractor relationship cannot
operate to frustrate the federal design to impose responsibility on the carrier for
acts of those who might otherwise be independent contractors.” Id. at 54. When
White was decided, the FMCSR, which were enacted pursuant to 49 U.S.C. §
304, required motor carriers to assume “full direction and control” of leased
vehicles in order to be certain that the public would be protected from the torts
of the operators of the vehicles, who were frequently insolvent. Id. at 52.
Pursuant to this statute, the White court held that employees of the owner-
operator of a tractor-trailer were statutory employees of the motor carrier. Id.
at 53.
Title 49 U.S.C. § 11107 superseded 49 U.S.C. § 304, and provided that the
Interstate Commerce Commission (“ICC”) could issue regulations requiring
motor carriers to utilize written leases. The FMCSR required the leases to
provide that the carrier has exclusive possession, control, and use of the
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No. 08-40410
equipment and assumes complete responsibility for its operation for the duration
of the lease. 49 C.F.R. § 376.12 (c)(1) (originally codified at C.F.R. § 1057.12
(c)(1)). In 1992, the regulations were amended to provide:
Nothing in the provisions required by paragraph (c)(1) of this
section is intended to affect whether the lessor or driver provided by
the lessor is an independent contractor or an employee of the
authorized carrier lessee. An independent contractor relationship
may exist when a carrier lessee complies with 49 U.S.C. 14102 and
attendant administrative requirements.
49 C.F.R. § 376.12(c)(4)(originally codified at 49 C.F.R. § 1057.12(c)(4)). The
agency explained the purpose of the change:
[T]he type of control required by the regulation does not affect
“employment” status and . . . it is not the intention of the
regulations to affect the relationship between a motor carrier lessee
and the independent owner-operator lessor. Inclusion of a specific
statement in the regulations was found to be necessary because
certain State courts and administrative tribunals have determined
that the regulations affect the relationship between the lessee and
lessor.
Petition to Amend Lease and Interchange of Vehicle Regulations, 57 Fed. Reg.
32905 (July 24,1992).
The ICC was abolished in 1996, and 49 U.S.C. §11107 was reenacted
substantially unchanged as 49 U.S.C. §14102, referring to the Secretary of
Transportation instead of the ICC:
The Secretary may require a motor carrier . . . that uses motor
vehicles not owned by it to transport property under an
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No. 08-40410
arrangement with another party to . . . have control of and be
responsible for operating those motor vehicles in compliance with
requirements prescribed by the Secretary on safety of operations
and equipment, and with other applicable law as if the motor
vehicles were owned by the motor carrier.
49 U.S.C. § 14102(a).
Neither 49 U.S.C. § 14102 nor the FMCSR contradict Tex. Lab Code §
406.122 (c)’s declaration that the mere fact that an owner-operator and the
owner-operator’s employees have entered into a written agreement that
evidences a relationship in which the owner-operator assumes the
responsibilities of an employer for the performance of the work, does not
transform the employees into employees of the motor carrier.
In addition, Simpson contends only that the lease agreement itself, not the
circumstances of his working relationship with Rodgers, Rodgers Trucking, and
Empire, gives rise to his employee status under the TWCA. Because he has
conceded that he has no claim to employee status from the facts of his working
relationship, and because the lease language, construed in conjunction with the
statutes and regulations discussed above, does not confer on him employee
status under the TWCA, Simpson has failed to establish that he enjoyed the
status of an employee under that statute.
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No. 08-40410
III. CONCLUSION
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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