Olivares v. Brown & Gay Engineering, Inc.
401 S.W.3d 363
Tex. App.2013Background
- On Jan 1, 2007, Pedro Olivares, Jr. was killed in a Tollway crash allegedly due to improper signing and traffic control.
- Appellants sued Brown & Gay Engineering, Inc. and MSE for design and traffic-safety failures on the Tollway project.
- FBCTRA and TxDOT had been previously involved; after remand they were non-suited, leaving Brown & Gay and MSE.
- Both Brown & Gay and MSE moved for pleas to the jurisdiction asserting governmental immunity under the TTCA as governmental employees.
- The trial court granted the pleas; appellants challenged, and the court reviewed whether the entities were governmental employees under TTCA §101.001(2).
- The court concluded that neither MSE nor Brown & Gay established the right to control such that they would be governmental employees; both were independent contractors for purposes of immunity, leading to reversal and remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether MSE is an FBCTRA employee or independent contractor | Olivares argues MSE is controlled by FBCTRA and thus an employee. | MSE argues the contract labels it as independent contractor but FBCTRA controlled the work, implying employee status. | MSE is an independent contractor; not a governmental employee. |
| Whether Brown & Gay is an FBCTRA employee or independent contractor | Olivares asserts Brown & Gay acted as FBCTRA’s agent with control over Tollway work. | Brown & Gay contends it performed discretionary, FBCTRA-delegated tasks under board approval, not as an employee. | Brown & Gay is an independent contractor; not a governmental employee. |
Key Cases Cited
- Limestone Prods. Distrib., Inc. v. McNamara, 71 S.W.3d 308 (Tex. 2002) (factors for right-to-control test in TTCA context)
- Bishop v. Texas A&M Univ.,, 156 S.W.3d 580 (Tex. 2005) (right-to-control factors for independent contractor determination; employee status hinges on control)
- EPGT Pipeline, L.P. v. Harris Cty. Flood Control Dist., 176 S.W.3d 330 (Tex.App.-Houston [1st Dist.] 2004) (right-to-control analysis for third-party contractor and governmental immunity)
- Weidner v. Sanchez, 14 S.W.3d 353 (Tex.App.-Houston [14th Dist.] 2000) (contract terms and actual control inform employee/contractor status)
- Dolcefino v. Randolph, 19 S.W.3d 906 (Tex.App.-Houston [14th Dist.] 2000) (conclusory affidavits cannot raise fact issues on control)
- Farlow v. Harris Methodist Fort Worth Hospital, 284 S.W.3d 903 (Tex.App.-Fort Worth 2009) (independent-contractor determination when contract labels party as independent)