Temporary Employee barred by Worker’s Compensation Act from negligence claims even though paid through staffing agency.

The City of Dallas v. Frederick Salyer, 05-12-00701-CV (Tex. App. – Dallas, July 1, 2013)

This is an interlocutory appeal where the City argued Salyer was a city employee not an independent contractor and the Worker’s Compensation laws precluded her negligence action for an on-the-job injury. The Dallas Court of Appeals agreed and dismissed the lawsuit.

Salyer was a temporary employee assigned to work for the City by a staffing agency.  She was assigned to the Bachman Transfer Station where dump trucks deposited refuse. While working, a City dump truck backed into him causing injuries. Salyer filed suit under the Texas Tort Claims Act asserting the City had waived immunity for negligent actions arising out of the operation or use of a motor vehicle. Tex. Civ. Prac. & Rem. Code §101.021(1) (West 2011). He also argued that he was an independent contractor so the Worker’s Compensation Act exclusion did not apply. Additionally, he asserted the exclusion clause is an affirmative defense which does not affect jurisdiction. The City filed a plea to the jurisdiction which was denied. The City appealed.

The Dallas Court of Appeals first noted that pursuant to the recent Texas Supreme Court case of City of Bellaire v. Johnson, No. 11–0933, 2013 WL 2450151 (Tex. June 7, 2013), the Worker’s Compensation Act is a jurisdictional bar, not an affirmative defense. Second, the court noted recognized the key issue was whether or not Salyer was an employee or not and analyzed the type of control the City had over him. Salyer was undisputedly paid by the City through the staffing company based on hours worked, assigned his work schedule and tasks, and provided equipment for work. Based on the evidence in this case, the court determined Salyer was an employee, not an independent contractor.  Interestingly enough, the court noted the City’s response to interrogatories stating Salyer was not a “borrowed servant” (and were Salyer’s counter to the City’s plea) were not factual admissions but legal conclusions non-binding on the court. Therefore no fact issue existed precluding the granting of the plea. The court reversed and rendered dismissing Salyer’s case.

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