Tex. Supreme Court holds borrowed employee from contractor barred from negligence under Worker’s Comp. exclusivity

City of Bellaire v Johnson, no. 11-0933, slip op. (Tex. June 7, 2013)

This is a Texas Supreme Court case in which the Court determined the definition of “employee” for purposes of the Worker’s Compensation Act bar includes “borrowed” employees from independent contractors.

The City paid Magnum Staffing Services for its services of providing temporary employees.  Mangum, in turn paid Plaintiff Johnson, based on the hours he reported to the City. The City set Johnson’s work schedule, gave him his assignments, and supervised his work. Magnum had no role in overseeing Johnson’s work.  While at work, Johnson was injured and lost an arm due to an encounter with a garbage truck driven by Larsen, a City employee. Johnson sued Larsen and the City for tort and both Defendants filed a plea to the jurisdiction asserting the Worker’s Compensation Act is the exclusive remedy available.  The trial court granted the plea, the court of appeals reversed, and the Supreme Court granted the petition for review.

The Court, for comparative purposes, reiterated the court of appeals reasoning that the exclusive remedy bar did not apply unless Johnson was actually covered, as distinct from being legally required to be covered.  Additionally, the court of appeals held a fact question existed as to whether Johnson was a City employee.

Without much analysis or explanation, the Supreme Court simply stated NO and since the City controlled Johnson’s activities he was a “paid employee” whose exclusive remedy was under the Worker’s Compensation Act.  Additionally, the City and Larsen retained sovereign immunity.  The City’s immunity from Johnson’s suit would be waived by the Texas Tort Claims Act, TEX. CIV. PRAC. & REM. CODE § 101.021(1)(A) (waiving immunity from suit for injury from the operation of a motor-driven vehicle), but for the exclusive-remedy bar provided by the Texas Workers’ Compensation Act, id. § 101.021(1)(B) (motor vehicle waiver applies only if the government employee operating the vehicle could be personally liable to the claimant according to Texas law). Thus, if the bar applies, immunity was not waived. And since the bar does apply, the trial court properly dismissed Johnson’s claims.  The Court reversed and rendered.

If you would like to read this opinion click here.