04-20-00018-CV
Tex. App.Mar 24, 2021Background:
- Dicex and Amigo entered a temporary employment services (TES) agreement in 2009; Amigo supplied temporary warehouse workers, including forklift operator Roberto Avila Rodriguez.
- Rodriguez was injured while working at Dicex’s Laredo warehouse in 2013; Amigo’s workers’ compensation carrier paid benefits.
- Rodriguez sued Dicex (and others), nonsuited Amigo; Dicex then sued Amigo for breach of contract, negligent/reckless misrepresentation, and sought contribution.
- On prior appeal this court held Labor Code §93.004(b) (TES exclusive-remedy provision) did not apply because the injury predated the statute’s effective date; the case was remanded.
- On remand Amigo moved for traditional summary judgment (invoking Labor Code §§408.001 and 417.004 and statute of limitations) and a no-evidence summary judgment (challenging essential elements of Dicex’s claims); the trial court rendered a take‑nothing judgment in Amigo’s favor.
- Dicex appealed only the summary judgment in favor of Amigo; the appellate court affirmed.
Issues:
| Issue | Plaintiff's Argument (Dicex) | Defendant's Argument (Amigo) | Held |
|---|---|---|---|
| Whether §417.004 is overcome by the TES agreement (i.e., did Amigo execute a written agreement, before the injury, to assume liability to Dicex?) | TES’s insurance provisions and negotiation history show intent to protect/indemnify Dicex; raise fact issue on assumption of liability. | §417.004 bars reimbursement/indemnity absent a written agreement expressly assuming liability; TES contains no express indemnity clause. | Held for Amigo: TES does not contain an express indemnity/agreement to assume liability, so §417.004 bars Dicex’s reimbursement/indemnity claim. |
| Whether Dicex produced evidence (no‑evidence challenge) that Amigo breached the TES by failing to provide required insurance for Dicex’s benefit | The agreement’s insurance clauses and witness affidavit show Amigo promised coverage to protect Dicex. | The agreement merely requires Amigo to carry insurance for its employees; it does not name Dicex as an insured or otherwise obligate Amigo to protect Dicex. | Held for Amigo: Dicex’s contract evidence and affidavit are conclusory or fail to show Amigo agreed to insure/protect Dicex—no evidence of breach on insurance point. |
| Whether Dicex produced evidence (no‑evidence challenge) that Amigo breached by supplying an inadequately trained forklift operator | Amigo had contractual duty to assess/assign qualified workers; Aranda affidavit and Robinson’s claims create an issue. | Dicex has no evidence the contract required skill verification or that Rodriguez was untrained; Aranda affidavit is conclusory. | Held for Amigo: Dicex failed to produce more than scintilla evidence on Amigo’s contractual duty to verify skills or on Rodriguez’s lack of training. |
| Whether Dicex produced evidence (no‑evidence challenge) to support negligent/reckless misrepresentation (workers’‑comp protection or operator qualifications) | TES and Aranda affidavit show Amigo represented Dicex would be protected by workers’ comp and would receive qualified operators. | No evidence Amigo represented Dicex would be an insured/indemnified party or that representations about Rodriguez’s qualifications were false or made recklessly. | Held for Amigo: Dicex’s contract and affidavit are insufficient to raise a genuine issue on misrepresentation; no‑evidence summary judgment proper. |
Key Cases Cited
- Enserch Corp. v. Parker, 794 S.W.2d 2 (Tex. 1990) (§417.004 requires an express written agreement executed before the injury to assume employer liability to third parties)
- Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494 (Tex. 2010) (defendant who conclusively establishes an affirmative defense is entitled to summary judgment)
- Ford Motor Co. v. Ridgway, 135 S.W.3d 598 (Tex. 2004) (no‑evidence standard: more than a scintilla required to create a fact issue)
- Coker v. Coker, 650 S.W.2d 391 (Tex. 1983) (if contract language is unambiguous, court construes it as a matter of law)
- Ryland Group, Inc. v. Hood, 924 S.W.2d 120 (Tex. 1996) (conclusory affidavits lacking factual support are not competent summary‑judgment evidence)
- Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778 (Tex. 2001) (example of contract containing express indemnity language sufficient to show assumption of liability)