363 S.W.3d 681
Tex. App.2011Background
- Lomeli, hired by Labor Ready, worked at Southwest Shipyard as a welder beginning November 2007 and was injured December 18, 2007 on a barge hatch.
- Lomeli received workers’ compensation from Labor Ready; Lomeli sued Southwest for negligence seeking tort damages.
- Southwest moved for summary judgment arguing Lomeli was Southwest’s borrowed employee, thus barred from tort recovery under the LHWCA's exclusive remedy provision.
- Evidence showed Southwest controlled Lomeli’s day-to-day work and safety at its facility; Labor Ready supervised less, with pay channeled through Labor Ready.
- Lomeli argued nine borrowed-employee factors favored him and challenged the absence of Southwest labor-contract production; the trial court granted summary judgment for Southwest.
- The court conducted de novo review and held Lomeli was Southwest’s borrowed employee, affirming the summary judgment dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Lomeli was Southwest’s borrowed employee under the LHWCA | Lomeli: factors favor Labor Ready; disputed control and employment. | Southwest: Lomeli is borrowed employee; exclusive LHWCA remedy applies. | Yes; Lomeli was Southwest’s borrowed employee; summary judgment proper |
Key Cases Cited
- Billizon v. Conoco, Inc., 993 F.2d 104 (5th Cir. 1993) (contract terms do not automatically preclude borrowed-employee status)
- Melancon v. Amoco Prod. Co., 834 F.2d 1238 (5th Cir. 1988) (worksite realities can modify contract provisions; Amoco treated as borrowing employer)
- Brown v. Union Oil Co. of California, 984 F.2d 674 (5th Cir. 1993) (control and acquiescence factors; one month working period can be neutral)
- Capps v. N.L. Baroid-NL Indus., Inc., 784 F.2d 615 (5th Cir. 1986) (control over work is central to borrowed-employee analysis)
- Gaudet v. Exxon Corp., 562 F.2d 351 (5th Cir. 1977) (contract terms do not alone determine borrowed status; factual factors govern)
- Ruiz v. Shell Oil Co., 413 F.2d 310 (5th Cir. 1969) (early articulation of Ruiz factors for borrowed servant analysis)