*1 record, Id. at than affirmation of a silent which is appeal. support a restricted did not insufficient to reversible error in establish 943-44. appeal. a restricted error on the does constitute As to what record, clearly said we have face of the appeals’ We the court of judg- reverse enough. gov- The rules that silence is judgment dismissing ment and render prosecution erning dismissals want case. clerk to mail notice con-
direct the district hearing at place the date and taining court intends to dismiss the 165a(l), case, and a similar Tex.R. Civ. P. order, signing of the of the dismissal notice 306a(3). But P. the rules see Tex.R. Civ. affirma- upon the clerk an impose do not duty mailing to record the tive STATES, ENTERGY GULF notices; the absence accordingly, required Petitioner, INC., that notice proof in the record was error on the does not establish provided Alexander, 134 record. See face of the SUMMERS, Respondent. John (“ from the at 849 ‘The absence S.W.3d No. 05-0272. that notice of proof of affirmative
record order of dismiss- intent to dismiss or of the Supreme of Texas. Court ” error.’ provided al does not establish Argued Oct. at Ridge, Falcon 811 S.W.2d (quoting 944)). 3, 2009. April Decided contends, and the court of Forrester Rehearing Denied June held, that the clerk’s notation appeals that the clerk’s office was the trial record
“[ujnable requested” locate other items
affirmatively the trial court reveals notify
failed to Forrester of its intent the case. Because the clerk’s no- dismiss writing appears tation is asserts, record, the record as to Forrester rather demon- notice is not silent but given. on its face that no notice was strates Forrester, According to the clerk’s nota- requirements comports tion appeal. have articulated for a restricted distinction, however, to see We fail and a rec- between record that is silent notation that ord that contains written silent; way, proof of the record is either Gold, 145 S.W.3d at error is absent. See Alexander, 849-50; 213; at at 943-44. The Ridge, Falcon nothing more clerk’s notation reflected *2 following place. in its
now substitute the judgment unchanged. remains compensation case, In this workers’ *3 premises decide whether a owner that con- for the performance tracts of work on its premises, provides compen- workers’ to the contractor’s sation insurance em- contract, ployees pursuant to that is enti- to the remedy tled benefit of the exclusive Kibbe, Scheurich, Paul A. S. Christine generally employ- defense afforded Services, Inc., TX, Beaumont Jac- Entergy Compensation ers the Texas Workers’ Stroh, E. Callaway, M. Sharon queline TX, Act. P.C., specifically While the Act confers stat- Callaway, & San Antonio Crofts utory Petitioner. employer general for status on contrac- qualify by providing tors who workers’ Barkley, Law Office of Steven Steven C. compensation for their insurance subcon- Beaumont, TX, Collyn Barkley, A. Ped- C. says nothing tractors’ Boundas, employees, about die, Kherkher Hart Williams TX, LLP, Respondent. for who act as their Houston whether owners are also own contractor entitled Christian, George Texas Civil Justice S. status, thus the exclusive Harvey, & League, Jay Harvey, Winckler remedy that the defense. We hold exclu- TX, L.L.P., Austin, Kelly, M. Law Peter P.C., Houston, remedy qualifying general sive for Kelly, defense Office of Peter M. Webb, TX, Choate, & Guy likewise, D. Stokes is, prem- contractors available TX, L.L.P., Emi- Sparks, Angelo, San Zoe the Act’s ises owners who meet definition Ass’n., Lawyers Trial ly Taylor, Texas contractor,” pro- and who also Eiland, Austin, A. Ei- TX, Craig Craig A. compensation workers’ vide insurance PC, Galveston, TX, Attorney land At Law employees. lower-tier subcontractors’ Be- Bresnen, Levy, Steven Greene Richard Entergy cause we conclude that Gulf PLLC, Austin, Levy, Deats Owen & Durst States, “gener- Inc. the definition of meets TX, TX, Underwood, Waco, James Robert Act, and al contractor” under the because Parsley, E. Pars- Looney, L. E. Lee Lee Entergy qualifies under the Act otherwise Stone, P.C., Austin, TX, ley, Christina having provided compensation workers’ Houston, Gaughan Thiagarajan, & Stone agreement insurance its under written TX, Stolley, Thompson knight Scott & P. Corpora- with International Maintenance TX, LLP, Dallas, for Amicus Curiae. (IMC), to the tion it is entitled exclusive remedy against the negligence defense Justice opinion GREEN delivered brought employee, claims IMC’s John Court, in Justice which court ap- and Justice BRISTER Summers. reverse the WAINWRIGHT We I, II, III, IV, V, VI, joined, Parts peals’ judgment judgment and render for and IX of Justice HECHT VIII which Entergy. I, II, III, IV, V, VI,
joined, and in Parts VII, and IX of Justice JOHNSON I VI, I, II, III, VII, and joined, and in Parts joined. IX of which Justice WILLETT Entergy IMC to contracted with assist maintenance, performance of certain granted this case and Rehearing was its repair and other technical services at previous our We opinion withdrawn. parties agreed First, facilities. tractors.1 contractor various cost, provide, at its Entergy would own and subcontractor must enter into a writ- compensation insurance agreement workers’ ten under which the through pro- employees IMC’s provides compensation workers’ OPIP, program, ex- vided insurance coverage insurance to the subcontractor change price. contract for IMC’s lower and the employees of the subcontractor. Entergy complied obligation 406.123(a).2 with its under agreement Id. This makes agreement by purchasing the general statutory employ- contractor a covering insurance IMC’s employees er the subcontractor’s Summers, John employees. an IMC em- purposes of the workers’ *4 ployee, injured working while at En- 406.123(e).3 § Id. statutory laws. tergy’s plant. applied Sabine Station He employer is immunity entitled to for, received, benefits and under the work- brought by common-law tort actions compensation policy purchased by ers’ En- employees, subcontractor’s and a covered tergy. then Entergy negli- He sued for employee’s remedy” “exclusive for work- gence. Entergy summary moved for injuries related compensation is workers’ judgment ground on the that awas 408.001(a).4 § benefits. Id. statutory employer immune from common- argues Summers first Entergy that law tort suits. See Tex. Lab.Code failed to establish as matter of that law 408.001(a). § agreed The trial court and Entergy and Summers executed a written granted for judgment Entergy. The court agreement Entergy under which would of appeals reversed. 282 S.W.8d We provide compensation coverage. workers’ granted Entergy’s petition for review to 406.123(a). § See Tex. Lab.Code Sum 406.121(1) section examine whether of the argument mers’ chief is that the contract Compensation Workers’ Act excludes a maintenance, construction, for general from serving as its own services was between IMC and another general contractor for the purpose qual- Entergy company, Entergy Services, Inc., ifying immunity as a statutory employ- for opposed States, to Entergy Gulf Inc. er of its contractors’ employees. However, the Entergy contract stated that II Services, Inc. acted for agent itself and as The Act outlines a for other process by Entergy Companies, defined to general qualifies Entergy petitioner which a contractor include the here. Sum immunity from common-law tort claims mers also admitted in response his to En- brought by employees tergy’s of its subeon- summary judgment motion that the immunity Such arises when the employees contractor and the subcontractor's employer fense, remedy” invokes the "exclusive de- purposes compensa- of the workers’ employee's which limits the "exclusive 406.123(e). § tion laws of this state.” Id. remedy” recovery compensa- of workers' 408.001(a). § tion benefits. Tex. Lab.Code 4."Recovery compensation of workers’ bene- remedy employee fits is the exclusive of an 2. "A contractor and a subcontractor by compensation covered workers’ insurance agreement enter into a written under coverage legal beneficiary against which provides contractor or a work- coverage ers’ insurance to the employer agent employee or an or employees subcontractor and the of the sub- employer for the death of or a work-related 406.123(a). contractor.” Tex. Lab.Code injury employee.” sustained Id. 408.001(a). agreement 3. "An under this section makes of the sub- Legislature] Entergy chooses should be surest between IMC contract was addition, the blanket con- guide Fitzgerald to legislative Gulf States. intent.” Entergy that would be Inc., tract order states Spine Sys., Advanced Fixation rates,” wage indicating (Tex.1999). “O.P.I.P. paying Only when included purpose the contract’s insur- ambiguous those are do words we “resort Entergy offered an coverage. also ance to rules of construction extrinsic aids.” stating manager, from a risk affidavit Nash, In re Estate Entergy to the contract pursuant between (Tex.2007). IMC, Entergy agreed procure mind, these principles With we em- policy for IMC examine the Legislature what meant law, a matter these docu- ployees. As the term “general contractor” work Entergy satisfied the ments establish ers’ compensation statute. We do not look agreement requirement under the
written ordinary, commonly understood, to the agreement, statute. Under work- meaning of the term the Legisla because compensation coverage for IMC’s em- ers’ definition, supplied ture has its own by Entergy, not ployees was secured IMC. are bound follow. Tex. Gov’t Likewise, Code undisputed it is that Summers *5 311.011(b). § Legislature The defines sought injury and collected benefits for his “general contractor” as: Thus, OPIP. in determin- Entergy’s from statutory as a ing Entergy’s qualification person procure [A] who undertakes to remedy entitled to the exclusive performance service, of or a work defense, only inquiry remaining is either or separately through the use of the Act’s Entergy falls within def- whether subcontractors. The term includes a inition of contractor.” Tex. Lab. “general contractor,” “original “principal contrac- 406.121(1). § that We conclude Code tor,” contractor,” other “prime or analo- does. gous The not term. term does include a provides motor that a transpor- carrier Ill tation the use an through service of meaning The of a statute is a operator. owner question, de novo legal which we review 406.121(1). prem- That a Tex Lab.Code Legisla give effect to the ascertain “person” ises can be a within the Partners., Operating ture’s intent. F.F.P. meaning challenged. of the statute is not (Tex. Duenez, 680, L.P. v. 237 S.W.3d instead, on dispute, centers whether 2007). clear, Where text is text is deter procure per- one who “undertakes to Shumake, of intent. v. minative that State premises formance of can include a work” (“[W]hen (Tex.2006) 279, 284 199 S.W.3d owner, phrase that limits the or whether possible, [legislative we discern intent] to non- definition of plain meaning cho words from the owner contractors downstream sen.”); Mgmt. Alex see also Sheshunoff owner. Sens., Johnson, 644, L.P. v. 209 S.W.3d (Tex.2006). Since the words contained within ap This rule 651-52 defined, definition not are themselves enforcing language plies plain unless meaning a that apply is consistent with produce the statute as written would ab Tex., understanding common of those terms. Fleming surd results. Foods Inc. (Tex.1999). Dictionary, to Black’s “un- According Law Rylander, Therefore, “take generally dertake” means to practice construing our when task,” recognize obligation “procurement” “the [the statute that words act of getting obtaining “the enacted section means established Dictionary something.” Blaok’s Law “deemed employer” status ed.2000). (7th words, gen- In other very provision first to address a subscrib- eral contractor who takes on coverage er’s employ- of subcontractors’ obtaining performance the task of ees. See Act Leg., of Mar. 35th That work. definition does exclude R.S., II, ch. Part sec. 1917 Tex. owners; indeed, it premises pre- describes then, Gen. Laws 284-85. Since subse- cisely Entergy did. In the what words of quent revisions have not an in- indicated summary judgment Summers’ own re- tent exception create the kind of sponse, Entergy “entered into a contract owner-subscribers the dissent would now perform IMC various [IMC] Indeed, recognize. when the “deemed em- Entergy’s plant maintenance work at ployer” enacted, statute was first the Act Bridge City, Therefore, Texas.” we con- made no reference at all to clude that a premises owner can be a Instead, provision tractors.” applied general contractor under the definition “subscribers,” term that in the Act. provided included all purchasers of com- pensation insurance.5 Id. Under this 1917 IV version, the statutory language broadly es- dissent, amici, and some contend tablished, qualification, without reading our the statute constitutes subscriber, even a owner-sub- that, major change in the law for the scriber, could qualify as a em- time, first would enable premises owners ployer. When the statutory employers to become added the entitled to remedy agreement” “written provision the exclusive defense —a result def- *6 they Legislature say the “prime never intended. initions for contractor” and “sub- However, S.W.3d 511. the contractor” added, were also but the term State, long policy 1983, It been the has of this In 284-85. HB 1852 amended the stat- Act, expressed every in version of the by adding that no provision ute using different the covering injured can avoid contractor," subscriber an "prime term defined to mean merely employed by worker because he was person "the procure who has undertaken to subcontractor. The 1917 version of the Act performance the of work or services.” Act of created a "deemed” status to ad- 28, 1983, R.S., May 950, 1, Leg., 68th § ch. this concern: dress 6, 5210, sec. 1983 Tex. Gen. Laws 5210-11. Then, 1989, major the last overhaul of the any pur- If subscriber to this Act with the definition, kept Act the "undertaken to” but pose avoiding any liability and intention of “prime substituted the term contractor” for imposed by the terms of the Act sublets the "general person contractor” and defined that any part per- whole or of the work to be language: with the same "a by who or done has any formed said subscriber to sub-contractor, procure performance undertaken to the then in of any the event em- services, work or separately either ploye[e] through of such sub-contractor sustains an 12, the use of injury employment in the course of subcontractors.” Act of Dec. his he 1989, C.S., 1, 3.05, Leg., § shall 71st 2d be deemed to be and ch. taken for all 1, Tex. Gen. purposes of Act Laws 15. The employe[e] this to be the 1917 "deemed of subscriber, employer” provision the virtually in addition remains thereto such un- changed Code, employe[e] independent right shall have an in the current except Labor sub-contractor, against of the action such term "subscriber” replaced by has been term, way by "person which shall in no any be affected compen- has workers’ compensation 12, by coverage.” to be received May him under sation insurance Act of 1993, R.S., provisions 269, 1, Leg., terms and § of this Act. 73rd ch. 1993 Tex. 28, 1917, R.S., 103, 987, (current Act Leg., of Mar. 35th ch. Gen. Laws version at 1, II, 6, 269, § 406.124). Part sec. Tex. Gen. Laws Lab.Code statute, then, em- of the original By operation “deemed the own- “subscriber” in the Act language were retained er-subscriber who contracted out to ployer” work May 28, 1983, Leg., Act of 68th liability verbatim. for injuries avoid its workers’ 1, 6, Gen. R.S., sec. 1988 Tex. ch. would nevertheless be the em- considered made no 5210-11. The Act Laws ployer, injured worker be enti- would kinds of enti- distinction between different under tled to benefits the owner’s workers’ chain, for the contracting ties and down up policy, and the owner would good purposes For reason. remedy be entitled to assert the exclusive statute, just it be bad for owner- would 28, 1917, See Act of 35th defense. Mar. try covering to avoid work- subscribers R.S., II, § 1, ch. Leg., Part sec. subcontracting as it ers out the work 1917 Tex. Gen. Laws 284-85. So while contractors, subcon- be for would provision may enacted for have been tractors, to do the other subscriber purpose preventing employers from explain why fails same. The dissent scope to avoid of its trying liability, the restructuring of provision mere application did not exclude own- refer- language left in old ers. subscribers, legisla- ring demonstrates a 1983, however, an provid- amendment Act’s scope to reorder tive intent time, ed, voluntary for the first for em- way not in a that is consistent coverage, upstream ployer status entities protecting purpose with its workers chain contracting through the use of writ- way in a coverage, instead promoting agreements parties. ten between Act owner-exception out an carves R.S., 950, 1,§ 68th ch. May Leg., Nor protection the Act’s subscribers. sec. 1983 Tex. Gen. Laws 5210-11. if attempt why, explain the dissent does contractor was specifically, More change significant long-standing such a permitted agree- to enter into a written intended, done in such policy was provide in- ment manner. obscure coverage surance to its subcontractors and do-, V and, employees upon its subcontractors *7 so, “prime contends Act never the contractor”6 would be- ing The dissent that the statute, come, the place, owners in first virtue of the deemed premises covered the employees were included within of the subcontractors’ that owners remedy in defense. general the contractors the entitled to the exclusive definition The the disagree. provisions 1989 amendment. We The old law survived so, before, as subscrib- originating applied “any to sub- amendment7 “all statute that, scriber,” eligible employ- un- necessarily which means ers” remained for deemed status, Act, including premises the owners. der the old version of a subscriber er today to be that we address is whether happened premises question who also a owner liability the stat- permitted escape Legislature, not be to the when it amended would ute, premises intended to exclude owners by contracting to a out the work. worker 1, (current at Tex replaced Laws version "Prime contractor” was later Tex. Gen. 406.121(1)). term, contractor,” § "general the current Lab.Code substantively verba- the definition remained 28, 1983, R.S., R.S., May Leg., ch. Leg., tim. Act of 68th May ch. 7. Act of 68th 5210, 6(c), 6(d), § Laws § sec. Tex. Gen. sec. Tex. Gen. Laws (current by Act 5210-11 amended of Dec. version at Tex. Lab.Code C.S., 406.124). 3.05(a)(2), Leg., § 2d ch. 71st that VI the class of entities would now from voluntarily be entitled to contract appeals The dissent and the court of employer status. We conclude deemed only way contend that to as a qualify the that it did not. “general contractor” is to be included a “tripartite” relationship in which a general premises There can be no doubt that contractor in middle of the transaction be, are, often employers owners can has, first, perform undertaken to work carry workers’ insur- owner, second, an part contracted ance. It that frequent- is also true owners that work to a subcontractor. perform to ly contract with others work on 511. But is not so the statute written premises. their there But has never been restrictively encompass a only as to three- an requirement that owner must first party relationship, for several reasons. engage general contractor to have work First, sin- ignores such a construction premises. done on its owner is free gle exception found last sentence of employees, do the work its own term definition: “The does not include directly contract with others to do the provides a motor transporta- carrier that work, using or to do the some work combi- through tion service of an use owner says nation of the The dissent an two. 406.121(1). operator.” Tex. Lab.Code owner can be an but cannot be employer, Here, the of an operator” inclusion “owner However, general contractor. we can find only exception definition’s indicates nothing specifying that the statute Legislature that intended for some the hat who also wears of a contractors, as qualify owners to disqualified coverage from carving only while class of out narrow Compensation under the Workers’ Act owners excluded the term. Id. Since simply it chooses to because contract di- clearly specified rectly premises. for work on its exception to a apply very narrow class, read ex- decline this narrow Entergy very thing did Legisla- ception broadly include all is, ture long encourage; has tried owners. Entergy by taking became a subscriber out a compensation policy for the Second, the definition is not as restric- entire It work site. would be an odd as supposes tive the dissent because the result, indeed, premises owner, if this act- definition, second sentence ing contractor, its own and fur- specifies types of contractors to be includ- ther acting in accordance with the State’s definition, ed specifically pro- within the strong public policy encourag- interest of vides the list Id. non-exhaustive. *8 ing compensation (“The insurance cov- ‘principal term includes a contrac- workers, erage for now to be tor,’ excluded contractor,’ ‘original ‘prime contrac- from the protections. term.”). Act’s See tor,’ Tex. analogous or other If we Garcia, Comp. Workers’ v. Comm’n 898 held that an “owner contractor” is (Tex.1995). 504, a contractor,” 510-16 Whether analogous “principal to a premises owner, contractor, general prime contractor,” “original or “prime contrac- contractor, subcontractor, tor,” or Entergy essentially is we be strictly would “subscriber” struing of workers’ a sentence that non- explicitly policy exhaustive, Legisla- therefore satisfies the even dissent concedes. ture’s intent to 282 ensure consistent and reli- S.W.Bd 511. Inasmuch as have we “ ‘[ijncludes’ able coverage employees. to all been ‘in- instructed that
441 vice, separately or enlargement through and not either terms of eluding’ are enumeration,” ”) limitation or exclusive (emphasis of use subcontractors add of 311.005(18), § are re- ed). words, A of reading reasonable Tex. Gov’t Code circumventing Legislative strained separately through “either the use of excluding from a non-exhaustive intent subcontractors,” recognizes the distinc contrac- a term as similar as “owner list tion between owner who takes it orig- true especially This is since tor.” upon “separately” procure himself to Act, shared the inal version of the which of performance work from subcontrac encouraging coverage purpose common tors, and the owner who undertakes employees, did not de- of subcontractors’ a middleman contractor” terms, rath- disputed of these fine procure performance to of work term, single utilized a “subscriber.” er “through the use of subcontractors.” 1917, S., 28, R. Leg., Act of Mar. 35th See id.; See see also Blaok’s Law DICTIONARY II, 6,1917 sec. Tex. Gen. ch. Part (7th 2000) (“Separate” 1099 ed. is de 269, Entergy Since is a 284-85. Laws “individual; distinct, particular; fined as pol- subscriber of a workers’ disconnected”). Certainly, one can hire cannot read such a non-exhaustive icy, we electrician, bricklayer, cabinet mak Legislature’s intent list to evince building— er to remodel his own office Entergy category remove from a thereby acting “separately” or, he can previ- have been included under would — general hire a contractor do the same ous of the same act. versions thing thereby acting “through the use- — renders Additionally, reading such a qualifier sug of subcontractors.” This definition meaningless part that at least gests con general that how a qualifies templated the existence of a performance procure “undertakes to act 406.121(1) (a owner who want as its own of work.” Lab.Code outcome that general contractor —an general pro contractor “undertakes no means uncommon.8 The dissent’s performance cure the of work or ser contractor, Geschke, See, general Corp. "acting e.g., Mgmt. v. 72 as its own built CLDC Motors, (7th Cir.1996) (noting apartment complex”); Waggoner Inc. 1349 F.3d Christ, gen Waverly v. Church 159 S.W.3d "the Geschkes chose to act as their own (noting appellant job”); (Tenn.Ct.App.2004) 47 eral contractor on the Milwaukee & "church, contractor, general Carpen acting own Dist. Council as its Southeast Wisconsin Inc., began constructing 9,000-square-foot gen Rowley-Schlimgen, 2 ters v. F.3d (7th Cir.1993) ("[T]he building existing purpose eral in back of its 767-68 Board held that Constr., building”); v. Fried Chicken ... functioned as its Mortenson Leatherwood Church’s Inc., 'continuing op (Mo.Ct.App.2004) general contractor in the 531 own ”); building Applewood (noting district "acted as its stores.’ that school own eration Co., project Landscape Nursery Hollings v. contractor” on to construct & Inc. worth, (1st Cir.1989) school); Roofing, addition to Wheeler v. T.L. 884 F.2d Inc., (Colo.Ct.App.2003) (noting appellant 74 P.3d who built house for that, (noting roofing job, ”[p]laintiff act acted himself "decided to contractor, as his own contractor”); respect landscap as his own Cuero at least Inc., (Fla. ing”); Trucking, Ryland Group, So.2d Bros. Inc. v. A & B Lazar Inc., ("Ryland Excavating, Ill.App.3d Dist.Ct.App.2003) Ill. undertook to de *9 778, 215, (2006) acting gener (noting velop property as it own Dec. 850 N.E.2d 217 its own contractor.”); "sought appellee develop land it al Harris v. Rio Hotel & Casi that no, Inc., 482, 206, gener P.3d and "decided to act as its 117 Nev. 25 207-08 owned” own (2001) (holding project”); that landowner could be al contractor for the Va. Ltd. 1000 566, statutory employer P'ship Corp., deemed a entitled to work v. Vertecs 158 Wash.2d 146 423, (2006) compensation immunity). (noting partnership, that ers’ P.3d 426 442 observed, “Arguably,” us read out the court “because have
reading would owner, but we do not inter entirely, Eastman did not contract with the qualifier a manner that renders owner, pret a statute but instead was the Eastman was meaningless. See Kerrville it parts of protected [by Id. Not statute].” Fernandez, S.W.3d Hosp. State only was the court’s observation here un- (Tex.2000) (citing City LaPorte v. case, necessary to the decision it (Tex. Barfield, 898 by The court erred was also erroneous. 1995)). subordinating specific the statute’s defini- “general tion of contractor” in of a favor Williams v. Brown
Finally, we address
generic definition outside the statute.
Id.
Inc.,
Root,
by
case relied on
&
(“A
reaching
general
its conclusion at 677
contractor is
appeals
court of
is excluded from
premises
directly
who contracts
with the owner
....”)
(internal
“general
contractor.”
the Act’s definition
quotations
citations and
(Tex.App.-Texarkana
omitted).
man’s
VII
benefits from Eastman’s workers’
ceived
granted rehearing
We
to address sever
Id.
compensation policy covering Tracer.
supplemental arguments
by
al
made
Eastman and
After
sued
Brown
Williams
amici,
respondent
a number of
injuries,
&
for his
the trial court
Root
many
urge
of which
us to address the issue
granted summary judgment for both de-
by going beyond
before us
fendants,
in part because the exclusive
looking
text and
to extrinsic aides such as
remedy
was workers’
insur-
legislative history.
the Act’s
But we have
ance,
already
had
provided.
been
been clear that
do not
we
resort
such
appeals reject-
Id. On
the court of
appeal,
plain language
extrinsic aides unless the
argument
predecessor
ed the
that the
See,
Nash,
ambiguous.
e.g.,
220 S.W.3d at
of the Act9 did not
this section
contem-
(“If a
clear
unambigu
statute is
plate granting immunity to more than one
ous,
apply
according
its words
to their
general contractor.
Id. at 676-77.
In-
stead,
meaning
court of
common
without resort to rules of
appeals
held that
aides.”);
qualified
Brown & Root
as a
construction or extrinsic
Sheshu
procured
noff,
tractor because
Tracer’s ser-
vices, adding that even if pro- the statute if contractor, Even we assume the definition of
tected one ambiguous, leg contractor” is party & Root was Brown because “[a] history of the any person passage contractor is islative bill’s favors who con- directly Entergy, tracts the owner.” Id. at 677 not Summers. The (internal omitted). and quotations history supports citations Summers’ outcome is C.S., Leg., § 9. Act of Dec. 71st 2d ch. Tex. Gen. Laws 1, 3.05, 1, 15, (current repealed 406.121). 1989 Tex. Gen. Laws version at Tex Lab.Code R.S., May Leg., Act 73rd ch.
443
only
pass,10
in bills that
with another
apparent
party”
pre-1989
defini
failed
controlling significance
tion
yet “we attach no
to mean the prime contractor and
Legislature’s
[legis- premises
entities).
to the
failure to enact
owner must be distinct
lation],”
Employment
give
Texas
Comm’n v.
weight
We
to the deletion of the
(Tex.1969),
Holberg, 440
42
for phrase
party”
“with another
from the
simple
always peril-
reason that
“[i]t
amended definition
presume
since we
meaning
adopted
ous to derive the
of an
deletions are intentional and that lawmak
provision
provision
from another
deleted
ers enact statutes
complete
knowl
drafting process.”
Dist.
edge
existing
Columbia
of
See Acker
law.
v. Tex.
—
Heller,
-,
-,
Comm’n,
(Tex.
U.S.
128 S.Ct. Water
790 S.W.2d
1990).
2783, 2796,
(2008);
is,
course,
portant only “plain” has itself word I plain meaning. statutory of a
Ascertaining meaning phrase I has “plain language” fear matter) (or begins text text for that of exhaus- point been overworked used, lan- and if that language with the Texas appeared published tion. It has in in than guage enough, past absent some obvi- more often decade plain is cases fifteen,3 the basis result, prior usually is in the as ous or an absurd error 278, Amim, 309, Texas, Rylander, 284 110 220 S.W. Inc. v. 6 S.W.3d v. 1.Simmons 1999) (“These (Tex. (“Courts unambiguous (1920) specific, as must take statutes 70 that, not be are the current law and should they should statutes they them. More than find something other a court to mean construed willing they them find them. be to take plain say words unless there is an than the carefully out the intend They search should statute, typographical one error such as a obvious giving its full effect to all of ment of a word, in the of a see that resulted omission they in its must find its intent terms. But Martin, City v. 971 S.W.2d Amarillo They language, and not elsewhere. are (Tex.1998), application of 428 n. 1 law-making body. They responsi are not language of a enactment literal legislation. They are ble for omissions result, (citing produce an see id. would absurd interpretation responsible a true and fair Glyn-Jones, 878 Bridgestone/Firestone, Inc. v. interpreta law. It of the written must be J„ (Tex. (Hecht, 1994) con 135 S.W.2d expresses only mak the will of the tion which curring)).”). strained, law, not ers forced nor the words the law in their simply such as Co., Lloyds clearly v. Ins. 797 fairly 2. See Black Victoria plain sanction will sense (Tex. J., 1990) (Hecht, dissent sustain.”), Episcopal S.W.2d quoted in St. Luke’s theory” (Tex. (rejecting for con ing) "Cartesian Agbor, Hosp. 952 S.W.2d believe, Interkal, struing policies T there Dallas, insurance 1997), RepublicBank N.A. v. —" "). (Tex. 1985), I am insured’ Inc., fore Bldg. Highway & Comm'n v. El Paso Texas 1,501 Council, cases My reveals Trades 149 Tex. Westlaw research Constr. 1,464 (1950); years, prior 153 past Fleming ten Foods resolving dispute meaning, Only every over right so often do we come out a-word,8 and brand a text with the as if hardly prev- it can be said that the though a mark were of shame. It seems nicer language is plain increasing, alence of let to call a statute unclear9 or yet, just better I detect exponentially. waning alone no implication.10 leave But truth power of the curse at Babel. To the meaning language is contrary, more and more this Court *13 reasonably often disputed and therefore upon op- called to construe statutes which ambiguous extent, to resolving some and posing insist are parties unambiguous and reason, disputes reasonable rather very things. dispute mean different A by denying reasonableness, than their meaning does not render over a text am- would result in a sounder jurisprudence. many biguous;4 disputes lack substance. great Two evils attend this course. One is language subject But is to when more than that judges analysis will use of reasonable interpretation, one ambigu- reasonable it is disagreements meaning guise over as a plain That is the meaning ambig- ous.5 of substituting preferences their own in place course, uous. Of people reasonable “will of the legislature’s. trespass This would disagree sometimes about what reasonable upon the boundary judicial between and about”,6 people disagree so, can but even it legislative spheres that is fundamental to is difficult to maintain language is our government. structure of The other is plain substantial, in the face of a legitimate in the search for meaning aof dispute meaning.7 its statutory provision, over courts grasp will at all years, average an increase on from less than 8. I recall past twenty four instances in the year Mexia, ten cases a to years. more than 100 City cases a Tooke v. 197 S.W.3d of year. 325, (Tex.2006)(“[T]he Not all are construction 342 words 'sue and be cases, language plain important sued', alone, in oth- standing anything, are if unclear er textual construction. I offer the results ambiguous.”); and Hosp. Wichita Falls State very general aas indication 692, of how the Taylor, (Tex.2003) v. 106 S.W.3d 701 phrase multiplied. use ("The of has ambiguity precludes statute’s our find ing Legislative an unmistakable intent 4. American Schaefer, sovereign Mut. Ins. Co. v. immunity.”); waive In re Missouri Mfrs. 154, (Tex.2003); Co., 217; 124 S.W.3d 157 Kelley-Cop Pac. R.R. 998 S.W.2d at Stracener v. Co., pedge, Highlands Ass’n, 378, Inc. v. Ins. 980 United S.W.2d Sens. Auto 777 S.W.2d 383 (Tex. 1998). (Tex. ("We 1989) 465 separation find that this of the clause ambigu [with creates comma] Co., ity...."). 5. In re Missouri Pac. R.R. 998 S.W.2d (Tex.1999) ("The language 217 of the support statute could more than one reason- E.g., 9. TXUElec. Co. v. Pub. Util. Comm'n of interpretation Tex., able ambigu- and therefore (Tex.2001) (Owen, 51 S.W.3d 286 ous."). J., concurring stating opinion and of the Court) (“We conclude ... that the PURA is Wilson, unclear....”). City 6. Keller v. 168 S.W.3d of (Tex.2005). E.g., City Corpus Christi v. Pub. Util. See, Quantum e.g., Toennies, Tex., Corp. Chem. (Tex. Comm'n 51 S.W.3d (Tex.2001) (Hecht, J., 2001) J., (Owen, concurring stating and ("The dissenting) Court) ("[W]hen Court opinion touts its view as the of the faced with an 'plain meaning' ‘unambiguous ambiguous lan- provision, give code some def guage' words, of the statute. In other erence to interpretation the Commission’s split really in the circuits is not a serious when it is reasonable.... Under the circum Second, Third, dispute; here, and Fourth Cir- presented stances say we cannot (or simply not) perhaps cuits cannot will read interpretation Commission's ... is an un plain English.”). one....”). reasonable Marshall, before, Travelers’ Insurance Co. v. during, made sorts of statements enactment, wheth- 1012 ... process and after [1934], others, ‘Generally as relevant or it is said: it legislators er where Legislature does determining be said that even authoritative. through intent, individuals —even its speak meaning, purpose of a law hearings, bill committee members —in provision, history constitutional debate, reports, analyses grew, times out of which it post-enactment commentary; pre-and or in may be rationally supposed which it through it its speaks enactments. bear relationship, some direct the evils remedied, good intended to be and the understand and struggle than Rather subjects to be are accomplished, proper text, might seem easi- explain a difficult of inquiry.’12 on a insistence that simple er fall back *14 meaning, have a but language plain all II leaving impression risks the that doing so Compensation pro- The Workers’ Act entirely being is not honest. court general agrees vides a contractor who against scrupulously guard must Courts to furnish workers’ insur- evils, so, ignore in doing both cannot a ance to a coverage illumine subcontractor and its may context its statute’s their meaning. ago Special employees Years Chief Justice becomes for this Court: em- purposes Samuels11 wrote of the Act —their if ployer, you their exclusive will —so in A should not be construed a statute remedy against general contractor if it a spirit pro- of detachment as were on-the-job injuries is bene- floating space. in The toplasm around Specifically, provisions fits. to which a statute relevant historical treatment subjected set forth in of the Labor state: may aptly be Code women, consisting Sidney Supreme L. three Special Chief Justice Samuels of Court designated Ward, Justice, Worth was Governor Ross Special Fort Mrs. Hortense Chief Sterling January 1932 to sit for Chief Jus Virginia and Miss Ruth Brazzil and Miss Hat under a now codified tice Cureton statute as Justices, Henenberg, Special L. tie Associate Government section 22.005 the Texas to hear and determine the in Johnson v. issues private The case a claim Code. involved Darr, (1925).) 1098 S.W. against once-disputed the State to in the lands region along the 100th me "Alsace-Lorraine” Walker, 255, 128 12. Wortham v. 133 Tex. the 36° ridian from Red River to 30' (1939); also Tux. Gov’t see parallel dividing the Indian territo Texas and statute, ("In construing 311.023 Code The that later became Oklahoma. United ries whether am- or not the statute is considered Supreme finally Court held Okla 9, States face, biguous may its consider court Texas, 47 S.Ct. homa U.S. (1) among sought object the: other matters (1926), region belonged to L.Ed. 145 that the attained; (2) be circumstances under disqualified Chief Justice Cureton was Texas. enacted; (3) legislative the statute was histo- represented he had Texas’ because interests (4) ry; statutory pro- common law former years dispute. just nine Court look visions, including laws on the or similar same Interestingly, the case. James V. All- decide (5) subjects; consequences particular of a represented also red had Texas’ interests construction; (6) construction administrative General, Attorney when the while and case statute; (7) (caption), pream- title decided, had terms as was served two Gover ble, id. emergency provision.”); nor and been nominated to serve as federal statute, ("In interpreting a a court 312.005 judge, being while all the shown counsel diligently attempt to (The shall ascertain most famous for the State case. intent consider at all times the old designation surely and shall power of the exercise law, evil, Special remedy.”). and the appointment Pat Neff's Governor contractor and a subcontrac- general question A a person whether who into a subcontracts agreement tor enter written work to be done on his own property general is a pur- contractor for pro- under which poses of provisions. these In the compensation insurance Court’s vides workers’ first opinion, thought we all from the to the subcontractor and coverage “plain ordinary meaning” provi- of the the subcontractor.13 employees of clearly yes.18 sions the answer was On “General contractor” means a person rehearing, after reargument and a number procure perform- who undertakes briefs, of amicus three Members service, ance of work or a either sepa- disagree Court now and think that rately through the use of subcontrac- statutory language “seems clear”19 and tors. The term a “principal includes “compels the conclusion”20that the answer contractor,” contractor,” “original difficulty is no. The is this: while it is contractor,” “prime analogous or other true, contends, as the person Court that a term. The term does not include a mo- engages who subcontractors to work on his provides tor carrier that a transporta- property own is often said to act as his through tion service the use of an owner own contractor and certainly per- operator.14 function, often, forms that more as the contends, dissent contractor is “Subcontractor” means a *15 thought person of as a who works for general contracts with a contractor to else, owner, someone a property like sub- perform part all or of the or work ser- contracting parts job of a to others as general vices that contractor has appropriate. it, On the face of either read- perform.15 undertaken to ing of the statute seems reasonable. The agreement An under this section makes text, it said, must therefore ambigu- be general the employer of ous. the subcontractor and the subcontrac- Scrutinizing the text does not resolve employees only purposes tor’s for of the difficulty. statutory The definition of workers’ laws of “general contractor” has three compo- state.16 nents. The first is this prescription: “ Recovery of workers’ ‘General contractor’ person means a benefits is the remedy exclusive of an procure undertakes to performance employee by covered compen- service, work or a separately either sation insurance coverage legal or a through the use of subcontractors.” A beneficiary against the employer premises or an owner who undertakes to pro- agent or employee of the for cure performance of work or service the death of or a work-related injury his property would appear to fit this defini- sustained employee.17 tion of general premises contractor. A 406.123(a). § 18. 2007 WL Sup.Ct. 50 Tex. J. 13. Tex. Lab.Code 31, 2007) (Aug. ("Construing the statute according plain 406.121(1). ordinary meaning, to its 14. Id. Entergy is a contractor because it procure performance ‘[undertook] to 406.121(5). 15. Id. (brackets original)). work’ from IMC.” 406.123(e). §Id. 19. Post at 489. 408.001(a). W.§ 20. Post at 483. specific piece for other procure persons, undertake to work work owner can himself, methods, through using subcontractors his own means and service for with- example, employ submitting or he someone out himself their control in procure respect the work or service—the to all its else details.’23 him. Nothing subcontractors —for Shannon, The issue the same in a case use of the “undertakes” statute’s word appeals. decided the commission of ordinary in its suggests any difference Certainly, person could not act as his meaning. contractor; independent indepen- own his component The second severely dence compromised. would be a non-exclusive list of exam- definition is But nothing suggests either case that an ‘principal term includes a con- ples: “The cannot act as his own con- contractor,’ tractor,’ con- ‘original ‘prime points correctly tractor. The dissent out tractor,’ analogous or other term.” has sometimes used for decades dissent asserts “we have in way contractor” that ex- who, in ‘any person a contractor as defined cludes a But owner.24 the Court business, pursuit independent of an cites instances in which a who hires specific piece undertakes to do a of work directly subcontractors is said to act as his ....’”, quoting a 1942 persons other contractor, suggesting own that it Court, of this Industrial Indem- decision is a expression.25 common One cannot be Southard,21 in turn nity Exchange sure the text alone whether the Leg- quoted a 1924 decision of the commission be, islature meant for owners to or not to appeals, Indemnity Shannon v. Western be, general contractors. the issue in Southard Co.22But was wheth- examples specifically list of non- independent er the claimant was an obviously exclusive intended to illus- tractor, quoted passage and the addresses *16 argues trate similarities.26 The dissent issue, that as is clear from its context: that a cannot a general owner be Many of definitions what is meant the because 1979 edition of ‘independent the term contractor’ have Dictionary Black’s Law defined a “con- They all given. substantially been rest who, in person pursuit tractor” as “a the of principle. same basic In the case business, any independent undertakes to Co., Indemnity of Shannon v. Western specific piece per- do a of for other work Com.App., 257 S.W. this sons”.27 But the rest of the definition is announced, as the basis for the Court not so restrictive: case, opinion rendered the fol- strictly applicable any ‘A This term is lowing definition: contractor is who, contract, pursuit person of an inde- who enters into a but is business, pendent commonly designate undertakes to do a reserved to one (1942). Coop. 21. 138 Tex. 160 S.W.2d 26. See Hilco Elec. v. Midlothian Butane Co., (Tex.2003) (‘‘[T]he Gas (Tex. ejusdem generis provides ... when App. rule of 22. 257 S.W. Comm'n judgm’t adopted). words of a nature are used in connec designation particular objects tion with the of persons things, meaning or classes of or at 23. 160 S.W.2d of the words will be restricted to the particular designation.”). 24. Post at 481-82. (5th ed.1979). at 25. Ante 27. Black's Dictionary Law job- excludes a price, a fixed undertakes to Neither of these definitions who, for acting site owner from as his own or performance works procure contractor. Other dictionaries are similar- scale, large on a or furnish- services component ly inconclusive.31 second large quantities, whether ing goods jobsite clearly does not indicate whether company or a or public for individu- owner is or is not to be treated as a gen- generally are classified as al. Such general contractor. (responsible for the en- eral contractors component The third of the (responsible subcontractors job) tire definition an exclusion: “The term does job; only portion e.g. plumber, carrier that provides not include a motor carpenter).28 transportation through the use of service The definitions describe someone who operator.” argues an owner The Court not be the of the might might or expressing sug- one exclusion jobsite. dictionary gives The same this that no The dissent gests others exist.32 “general definition of contractor”: tautological explanation offers Legislature likely express- exclusion: “the One who contracts for construction ly motor from the gener- excluded carriers building project, rather of an entire al-contractor definition to make it clear portion than for a the work. The that, though they might even otherwise fit general contractor hires subcontractors construct, general-contractor they are electrical, etc.), plumbing, coordi- (e.g. differently.”33 say to be treated I dare work, responsible all and is nates merely likely absolutely that it was not payment to subcontractors. Also called carriers, by excluding certain that motor “prime” contractor.29 they meant to make clear thusly: contractor” “prime It defines differently. are to be treated But building to a contract party dissent misses the if point: Court’s the total charged with construction and Legislature intended to make clear who who enters into sub-contracts for such treated a general should be contrac- electrical, plumbing, tor, did, work as and the all think it as we listed owners, called not premises like. Also contractor.”30 motor carriers but rate; trades, building 28. Id. and related prepared one who is to undertake work *17 contract.”); Webster’s 29. Id. at 615. Third New Internation- (1981) (“contractor ... la: Dictionary al party bargain: one that contracts: a to a one 30. Id. at 1072. formally something undertakes to do for (as another b: one performs work a (8th ed.2004) 31. Dictionary Law Black's job) printing provides supplies large on a ("contractor. party 1. A ato contract. 2. More (as troops) according scale to a contractual specif., who contracts one to do work or agreement price predetermined by at a his another.”); provide supplies for id. at 351 own calculations c: one who contracts on ("general contractor. One who for contracts predetermined provide terms to labor and project, completion including of an entire responsible per- materials and to be for the materials, purchasing hiring paying all job formance of a construction in accordance subcontractors, coordinating all specifications plans— with established contractor; original prime work.—Also termed building called also contractor "). contractor."); English Dictionary The Oxford (2d 1989) ("One ed. who contracts or 32. Ante at 437. articles, supply undertakes to certain or to perform any (esp. govern- work or service for public body), price ment or other at a at certain 33. Post job should be treated as who works for the premises then owners owner. This read- ing of the one, statute is a reasonable general contractors. my view, only but it is not the reasonable statutory definition of “subcontrac- The one. gen- contracts person tor”—“a who perform all or part eral contractor Ill that the con-
the work or services disagreement perform” undertaken to in this tractor has case is not —does over clarify the matter. A words and cannot be help resolved with dictionaries. consequences contractor It is over be who only by can be perform” examining settled work how the “undertake[s] statutory provisions fit in the context of tracting with subcontractors. Compensation Workers’ Act as a precision, Examined with whole. The issue for the Court is not reasonably provide text can be read to good whether it is policy person to treat a undertakes to procure who work arranges for work to be done on his is no or service less property contractor, as a general some- happens prem- because he also to own the thing decide, we cannot but whether such done, job ises where the is to be and no treatment is most consistent poli- with the statutory employer pro- less a when he cies embedded in the Act. For four rea- vides workers’ insurance sons, I believe it is. coverage for subcontractors and their em- That, course, why ployees. is the Court First: The Act’s “decided bias” is for opinion. coverage.34 unanimous in its first Although employees was and em- quickly position ployers out, dissenters too dismiss a can opt employee an has they recently unreservedly; so embraced so,35 limited time frame to do wrong, they employer sometimes are never in doubt. and an penalized doing for so argument weight: gen- by But their basic has loss of his common law defenses to an eral contractor often employee’s injury.36 refers someone claim of The Act’s Enters, Alvarado, Wingfoot coverage employer sation insurance if the (Tex.2003) ("And examining employer not a covered at the time of the Labor Code's overall scheme for workers' employment coverage.”). but later obtains the workers, protecting and for conclude that the Act’s decided in favor bias 406.033(a) ("In against 36.Id. an action an employers electing coverage provide for employer who does not have workers' com- employees supports their our conclusion that pensation coverage insurance to recover dam- permits the Act more than one ages personal injuries or death sustained (footnote compensation purposes." employee scope in the course and omitted)). (1) employment, it is not a defense that: employee guilty contributory negli- 406.034(b) ("An employee 35. Tex. Lab.Code *18 (2) gence; employee the assumed the risk of right who desires to retain the common-law death; (3) injury injury or or the or death was damages personal of action to recover by negligence employ- caused the of a fellow injuries notify employer death or shall the in ee.”); 347, Kroger Keng, v.Co. 23 S.W.3d 349 writing employee coverage that the waives (Tex.2000) ("To encourage employers to ob- rights under this subtitle and retains all of insurance, compensation tain workers’ sec- employee action under common law. The penalizes by pre- tion 406.033 nonsubscribers notify employer must the not later than the cluding asserting them from certain common- day employ- fifth after the date on which the employees' (1) (2) personal- law in their begins defenses employment: re- ee: the actions_”). Still, injury employer written notice the about third Tex- ceives from that compen- employers the has obtained workers’ as choose not to subscribe to the 452 “applied it not be by rights, should coverage is furthered law of
encouragement pro- contractors clearly purview”.38 its ineentivizing general cases not within coverage compensation policy vide workers’ been “the settled of long But it has No employees.37 and their subcontractors liberally provi- the this State to construe by this the Act does questions one in order to effectuate sions of [Act] contractors such providing enacted.”39 for which purposes remedy. To exclusive of protection of the purpose a fundamental Coverage is incentive when refuse Act. jobsite would to own the happens tractor 1917, the Act has ex- Second: Since contrary policy to the coverage, discourage using pressly prohibited a subscriber responds that be- dissent Act. The of the coverage.40 a subcontractor to circumvent derogation in of common Act is cause the early tendency of our system. objects. The Biennial Re- their workers' strictly they because to construe them courts Department port Texas of Insurance of derogation thought in of common were to be of Workers’ 81st —Division (Dec.2008). long given place to a liberal rule law has since 3 Compensation prevailing pre The rule now of construction. Enters., at 142 Wingfoot 111 S.W.3d 37. scope of the of the laws vents the restriction (”[S]ection (covering general con 406.123 by exceptions and exact definitions not subcontractors), like other work tractors and harmony spirit.”). with their Code, en compensation provisions ers’ employers to obtain workers' courage[s] 28, 1917, Leg., approved Mar. 35th 40.Act coverage by provid compensation insurance 1, II, 6, R.S., 103, § § Gen. Part 1917 Tex. ch. employer, including the ing to the benefits 269, ("If any to this Laws 284-285 subscriber coverage remedy provision, if is ob exclusive purpose Act with the and intention of avoid- tained.”). ing any liability by imposed the terms of the any part Act sublets the whole or of the work Bowie, Superior Inc. v. Energy Co. Serv. of performed to be or done said subscriber 190, Servs., Inc., 194 n. Snubbing 236 S.W.3d sub-contractor, any the event em- then in (Tex.2007) (quoting v. Satter 17 Satterfield ploye[e] sustains an of such sub-contractor 456, 1969)). (Tex. field, 448 S.W.2d injury employment he in the course of his pur- shall be deemed to be and taken for all Underwriters, v. S. Huffman employe[e] poses Act of the of this to be (1939) Poly- (quoted in re 128 S.W.2d subscriber, and in addition thereto such em- (Tex. America, L.P., 262 S.W.3d independent right ploye[e] have an shall Hoover, 2008)); Mut. Co. v. Millers’ Cas. see sub-contractor, against action such (Tex. App.1921, Comm'n 235 S.W. by any compensa- way be affected shall no ("It thought, inas judgm’t adopted) has been by him under the terms tion to be received derogation is in [Act] much as the Act.”); provisions of renumbered law, given it should be a strict common 28, 1983, 6(d) by May Leg., § Act of 68th construction, very gener the courts have R.S., Tex. Gen. Laws ch. spirit liberality char ally should held that 5210-5211; 12, 1989, amended Act of Dec. interpretations, for the reason that acterize its C.S., 1, 3.05(h), Leg., 2d ch. 1989 Tex. 71st legislation.” classed as remedial it is to be omitted)); formerly Tex.Rev.Civ. Gen. Laws Sur. Co. v. In (quotation Southern Stat. 3.05(h) ("If abnit, (Tex.Civ.App.- Ann. art. who 413-414 1927, writ) ("The leading has workers’ insurance cover- no author Eastland Compensation age part all to be agree Workmen's subcontracts work ... ities performed by person to a subcontractor response to a into existence Laws came liability purpose with the and intent to avoid general acceptation of the broad economic Act, employee employer under this prop as an theory that industrial accidents should compensa- erly chargeable part of the overhead the subcontractor sustains be *19 injury scope and of the are ble in the course expenses the industries. These laws nature, employee employment be treated as an and be lib shall remedial in their should person purposes of workers’ com- erally promoting of the for with the view of construed among common contractors on construc- the who owns a subscriber prohibit To jobsites43 employer tion If the is a sub- engaging subcontractors from jobsite benefits, party while contractor and the third is a compensation paying avoid the discouraging time sub- provided coverage the same has at who bene- compensation providing worker, remedy from scriber the the worker’s exclusive remedy pro- the exclusive by denying compensation fits limited to against both is indeed. tection, perverse result be would benefits. If the contractor were policy of dis- dismisses The dissent protection not afforded the same because contained coverage, couraging avoidance jobsite, could he owned the worker “irrelevant”,41 1917, in the Act since him, damages against recover common law to think that the simply no reason there is require and he in turn could the subcon- one hand and has ever beckoned with Act liability, thereby de- tractor to assume the other. shunned with of the rem- feating protection exclusive edy employer, to the worker’s own even 1968, provided the Act has Since Third: though he and the contractor both subscribing employer agree that a provided compensation benefits. this injured, has been writing, before worker case, indemnity an Entergy just had such liability for the party’s a third to assume If Summers can appear agreement to be with IMC.44 agreements injury.42 Such against party pay separate right carrier a third liable to have a pensation and shall also subcontractor, damages injury against for the or death under this of action judgment against employee's chapter that results in a right does not affect the of action Act.”); party by party, the third codi- third or a settlement right under 12, 1993, R.S., party May Leg., employer is not liable to the third by 73rd fied Act of 1159, 987, 1, damages Laws for reimbursement or based on § 1993 Tex. Gen. ch. (“If judgment person § or settlement unless the 406.124 as Lab.Code executed, occurred, injury death cover- before the insurance has workers' agreement party the third part of the work to be a written with age subcontracts all or liability.”). by performed subcontractor assume liability employ- as an the intent to avoid subtitle, Texas, employee an of the er under this ABC of Inc. 43. Brief of Amicus Curiae compensable who sustains a subcontractor at 5. scope employ- injury in the and course employee of the ment be treated as an agreement Entergy shall between and IMC 44. The compensa- purposes of workers’ person provisions: these contained right separate have a of action tion and shall Indemnity "18. right against of action the subcontractor. The by extent allowed "18.1 To the fullest against the subcontractor does not affect law, agrees that it applicable the Contractor employee’s right compensation under this indemnify the En- will and hold harmless subtitle.”). tergy Companies, their affiliated and associ- any agents, companies and of their ated 41. Post at 480. directors, shareholders, officers, employees, 20, 1963, R.S., assigns Leg., and all May ch. successors claims, losses, costs, Act of 58th damages, expenses, formerly in- § 1963 Tex. Gen. Laws fees, (1925); attorneys liability by rea- cluding § art. Tex.Rev.Civ. Stat. Ann. 12, 1989, damage, personal injury Leg., property son of amended Act of Dec. 71st 1, 32-33, death), C.S., damage (including or both such Tex. Gen. Laws 2d ch. 8308-4.04; arising kind injury of whatsoever nature or formerly Stat. Ann. art. Tex.Rev.Civ. 12, 1993, any negligent or May a result of 73rd out of or as and codified Act of R.S., wrongful in connection act or omission Leg., 1993 Tex. Gen. Laws ch. (“In by the performance of the Work with the now Tex. Lab.Code 417.004 Contractor, agents, employees, and sub- brought by injured its damages an action for EXPRESSLY THE PARTIES legal beneficiary, contractors. employee, a or an insurance *20 policy an risk one for a damages law from Enter- increased when common recover perverse. limited risk should do is already compensation received gy (having so, course), employers fact that often do the dissent benefits, Entergy require can they must, says, they shows know but all it IMC, by Summers’ direct reimbursement unwillingness put for sure is an situation, shows In this employer. workers’ too much trust in the of the fairness law. system nothing to compensation provides dissent, to the Anyway, according employers all any employer, though even “a choice the problem policy agreed provide compensation ben- have Legisla- made.”45 I would not blame the employees, injured all efits to that can problem ture for be avoided requested himself and received. worker of the Act. reasonable construction perverse be an even more dis- This would policies of the of the Act. The ruption comprehen- Fourth: The Act creates a that the economic effect of argues dissent system,46 treating similarly sive and situat- indemnity agreements is minimal because employers differently ed contractors and can employer compensation an obtain cov- disrupt system unnecessarily. would through at a cost erage reduced owner- apparent why premis- There is no reason like can provided policies Entergy’s and remedy es owner should the exclusive have liability for in- buy general insurance protection provides when he workers’ com- damages creased risk limited pensation covering insurance his own em- providing compensation coverage. But ployees engaged in particular work but not provides provides insurance that no he coverage when same for bargain, protection employees, is no however reduced his subcontractors and their cost, having buy policies retained to and two do same work.47 The dis- AGREE THAT THIS INDEMNITY SHALL ARE ATTRIBUTABLEIN WHOLE OR IN PART THE APPLY EVEN IN THE EVENT OF THE TO NEGLIGENCE OF THE EN- COMPANIES, TERGY THEIR CONCURRENT NEGLIGENCE OF THE EMPLOYEES AGENTS, OR THE CONDITIONS OF THE ENTERGYCOMPANIES. PREMISES, OTHERWISE, Further, AND respect OR NOT- "18.2 to Contract WITHSTANDING ANY OTHER being performed by PROVI- Orders Contractor as SIONS HEREIN CONTAINED THE TO independent rights contractor with sole CONTRARY." performed by employ- to direct the Work its ees, solely responsi- the Contractor shall be 45. Post at 488. indemnify ble for and shall and hold harm- Entergy Companies, less the their affiliated Co., companies Woolsey any of their associated Panhandle 131 Tex. Ref. officers, directors, shareholders, (1938) ("The agents, law employees, assigns Compensation compre- or Workers’ [the Act] successors from and claims, losses, terms....") against any liability, and all hensive in its costs, damages including expenses, at- fees, torney on account death of or Constr., Harrison, 47. Lee Lewis Inc. v. injury any to the Contractor or subcontrac- (Tex.2001) (Hecht, J., 795-796 tors, any agents employees or to ("The or concurring) subscribing hire for a in- subcontractor, any by, Contractor or caused dependent presumably contractor includes of, arising any way out or in connected with providing the cost of hereunder, performed work, the Work to be coverage related to the and the con- any while the Contractor or such subcon- pays tractor’s it should have tractors, employees agents protection liability are on or the same from extra premises, injuries near of the Sites or job-related Owners’ contractor's em- ployees employ- WITHOUT REGARD TO WHETHER ANY that the contractor has. The SUCH DEATH OR INJURIES ARE AL- er has the same economic incentive the thus job-related LEGED HAVE BEEN BY to minimize TO CAUSED OR has risks
455
certainty.
whimsy
system
settling
is a
The old
of
only response is
sent’s
disputes
unsatisfactory,
was
and modern
prerogative.
business methods demanded that com-
1913,
Act,
provides
in
passed
first
pensation
injuries
employees
for
to
be
but limited
guaranteed
worker
injured
by
negligence
not controlled
the fault or
and
quickly
medical benefits
wage and
employee,
but should rest upon
fault,
exchange
to
for
regard
without
broader,
humane,
more
and more cer-
common law
foregoes
the worker
which
tain rules.50
employer.48
his
against
claims
damage
[A]ct,
jobsite
“The
An
long ago,
Not
we wrote:
owner-run
is
uncommon.
compensation
suggested
nationwide
No one has
a reason
part
why
was
movement,
in the
perceived to be
best
was
contractor who works for an employ-
employers
of both
and
obligations
protec-
interests
can submit
to the
and
49
earlier,
said:
ees.” Much
we
compensation system
tions of the workers’
employer
for all the workers
compensation laws have
Workmen’s
cannot,
job,
on the
while the owner himself
part
public policy.
become
of our
away
system.
to do
other
than to
the
Of
object of the laws was
subvert
course,
Legislature
unavoidable ac-
the
needs no reason to
negligence,
the issues of
risk,
cident,
contributory negli-
differentiate
assumed
between
contractors
issues,
jobsite
and to fix who do not
the
and those
gence, and other like
own
any
required
presume
un-
do. But
are
to
amount recoverable free of
the
1995)
injured
employer
prod-
("Employees
like a
workers. The
is not
course
stranger
scope
employment
compen
the
could
manufacturer or other
recover
uct
any part
relationship
proving
employer
the
work
who has not bom
sation without
fault
regard
compensation and therefore is
and without
to their or their cowork
of the cost of
injury
negligence.
exchange,
employer’s
liability for
to the
ers’
not immune from
employees.
Imposing liability
liability
injuty
substantially
total
for an
contractor’s
(citation omitted));
negli-
the contractor’s
limited.”
Edmunds v.
on the
(Tex.App.-
gent injury
employee
simply
Highrise, Inc. 715 S.W.2d
379
of its
inconsis-
ref’d) ("The
principle’ that
Dist.]
with the 'bedrock
work-
Houston
writ
[1st
tent
employee's
theory
remedy provision
compensation is an
exclusive
behind the exclusive
ers’
Compensation
remedy
compensation
job-related
of the Workers’
Act is that in
and full
(footnotes omitted) (citing
employee merely injured,
injuries.”
Monk v.
where the
cases
Auth.,
given
opportunity
relinquish
Virgin Is. Water & Power
53 F.3d
he be
(3d Cir.1995);
v. Marathon
common law remedies for lesser benefits
1392
Anderson
Co.,
(7th
efficiently,
paid
quickly
Cir.
which are
more
Petrol.
801 F.2d
fault.”).
1986))).
proof
and without
Garcia,
511;
Keng,
48.Kroger Co. v.
23 S.W.3d
349-
893 S.W.2d at
see also Ker
(Tex.2000) ("The
Co.,
Legislature enact
Dredging
Texas
U.S.
nan v. American
431-432,
(1958)
response
in 1913 in
to the needs of
ed the Act
78 S.Ct.
L.Ed.2d 382
who,
workers,
(”[A]s
despite escalating
industry
industrial
and commerce became suffi
accidents,
burden,
law,
increasingly being
strong
denied re
ciently
were
to bear
workers,
covery.
injured
evolving
policy,
public
The Act allowed
came
reflection of an
employees
employers
to workers’ com
and their
whose
subscribed
to favor
insurance,
pensation
dependents
to recover without es
for the losses occasioned
tablishing
employer's
injuries
fault and without
inevitable deaths and
of industrial
employee's negligence.
shifting
industry
regard
employment,
In ex
thus
the 'hu
lower,
change,
employees
doing
most
received
man overhead' of
business. For
certain, recovery
change
than would have been
been embodied
more
industries this
has
(citation
Acts.”).
Compensation
possible under the common law.”
Workmen’s
omitted));
Compensation
Texas Workers'
Garcia,
(Tex.
Woolsey,
Act as a whole. For these 6, which, above, 8307, section as noted was that of the two constructions of conclude prohibited enacted in a subscrib- text, statutory both reasonable their subcontracting er from work “with the face, stronger. the Court’s is purpose avoiding and intention” of the lia- bility for compensation workers’ benefits IV employees he would have if his own were made, however, argument The is injured doing the In that work.54 situa- likely not in is have tion, injured employee the subcontractor’s tended its definition of con employ- was deemed to be the subscriber’s person tractor” to include a has work ee and therefore entitled to property done on his own because that benefits. major been a change would have law In three consecutive sessions in that would have drawn attention when 1977, in beginning six bills were intro- fact it was enacted without note. The duced, purpose the ostensible of which reasoning the same line of Court followed subjective was to eliminate section 6’s Bowie, in Energy Service Co. Inc. v. “purpose and trigger pro- intention” Services, Inc.,’52 Superior Snubbing where greater in certainty determining vide we construed an amendment to the statute whether subscriber should be treated as enforceability governing indemnity statutory employer of his subcontrac- agreements long patch. used in the oil and their employees. premise tors well-settled, The industry practice was had being the bills was that subscribers were criticized, never been and continued un statutory treated employers already, changed after the amendment. con We but always predictably consistently. not or “[ajbsent any cluded that identifiable rea proposed replace The bills to amend or son for change a substantive to have been provide, variously, section 6 and either in statutory provision, made or coverage extended to subcontractors extra-textual indication that one in was agreed, coverage unless otherwise did tended, any resulting change in indus not extend agreed, unless otherwise try practice, we think the most reasonable in something between. In brief: construction of amended [the statute] (cid:127) 1584, 1977, predecessors.”53 same as its ... HB in introduced would problem argument provided with the this case is have amended section 6 and that it simply has never been clear when a that “under a bona fide sub- faith”, good considered the of a contract made in Leg., § 51. See approved 311.021. 54.Act Mar. 35th Tex. Gov’t Code R.S., 1, II, 6, § ch. Part 1917 Tex. Gen. (Tex.2007). 284-285, 52. 236 Laws codified as Tex Rev Civ. supra quoted Stat Ann art. text Id. at 195. note 40. coverage pro- through was the cost to the subcontrac- passed HB 1584 the House56 tor.58 HB vided.55 1585 was not voted out of pending left in the Senate committee. committee. (cid:127) introduced, SB 360 was al- (cid:127) HB also introduced most identical to HB but it was replaced have section 6 alto- passed
would rewritten committee and that a gether provided subscrib- Senate. The committee substitute de- coverage extended to existing er’s subcontrac- leted provided section 6 and *23 employees, tors and their absent an prime instead that a contractor would agreement contrary, to the unless not be deemed the employer of a sub- they already were covered.57 HB contractor or employees his without provided agreement beforehand, 1585 would also have that a an but absent always agree subscriber could to such agreement, ex- an the prime contrac- compensation coverage tend to a sub- required tor would be provide cov- employees pass contractor and his if erage the subcontractor did not do (1977). Leg., 55. Tex. H.B. 65th R.S. entered into a bona fide written contract ex- pressly providing that sub-contractor under- House, passed HB 1584 As stated: performed takes such work or services to be any "If to this law subscriber sublets the independent thereunder as an contractor and any part per- whole or of the work to be subscriber; or, (ii) employee an not as by any formed or done said subscriber to sub- provided sub-contractor has workmen's com- contractor under a bona fide sub-contract pensation coverages insurance for sub-con- faith, good made in then in the event the sub- employees tractor’s the sub-contractor and/or any employee contractor or of such sub-con- during performance of the sub-contract as injury tractor sustains course of his by evidenced certificates of insurance issued employment, he shall be deemed to be and by compensation sub-contractor’s workmen’s purposes taken for all of this law not to be the carrier.”). insurance employee of the A subscriber. sub-contrac- tor, Act, as that term is used in this means ("(c) Notwithstanding any provi- other 58.Id. person, corporation, any firm or or other le- law, may provide sions of this a subscriber law, gal entity recognized under Texas con- compensation coverag- workmen’s insurance tracting principal prime with the or contrac- employees es for the sub-contractor's and/or performance, capacity tor for the in a other the sub-contractor. In the event subscriber employee, any than as an and all work or provide compensa- elects to such workmen’s principal prime services such or coverages, tion insurance the insurance con- perform.” tractor has contracted to specifically tract shall include such subcon- sub-contractor, employees tractor’s and/or (1977) Leg., 57. Tex. H.B. 65th R.S. coverages and the elected shall continue ("(a) Act, As used the term sub-con- policy while the subscriber’s is in effect and firm, corporation person, tractor means a or while the named sub-contractor is endorsed any legal entity recognized other under Texas premiums thereon. amount of the actual law, contracting principal, original with the paid or incurred subscriber work- prime performance or contractor for the of all compensation coverages men's insurance any part or of the work or services which employees such sub-contractor’s and/or principal, original prime such or contractor legal subcontractor shall constitute claim (b) perform, has contracted to A sub-contrac- and, against having subscriber sub-contractor employees tor and sub-contractor shall provided such workmen’s in- employees be deemed of the subscriber for surance, subscriber deduct the amount of which or for whom such sub-contractor is to (i) premiums paid pro- perform the actual or incurred in prior work or services unless: viding beginning any such workmen’s performance insur- work or coverages performed price services to be ance from the under such sub- sub-contract contract, sub-contractor.”). any subscriber and sub-contractor have other monies due the (cid:127) introduced, 1981, three bills were through the cost so, pass could all The House com- HB and SB SB the subcontractor.59 bill, reverting to a amended House com- essentially mittee identical to the 1584, pro- like HB something version prior for SB 360 the mittee substitute could viding that floor. made it to the session. None employ a subcon- be deemed of these bills defined None employees his without tractor distinguished one contractor or between job outset of the at the agreeing jobsite and one who owned who compensation bene- provide All to treat for the owner. seemed worked and his em- subcontractor fits to the engaged a subcontrac- any subscriber passed The cost could be ployees.60 contractor, though none tor aas subcontractor. through to the Nothing specifically said so. tabled on substitute was committee en- that a subscriber who suggested bills the floor. (1979) ("(a) substitute read: Leg., 60. The committee *24 66th R.S. 59. Tex. S.B. Act, the term ‘subcontractor’ in this As used Act, "(a) in this the term sub-con- As used firm, any corporation, person, or means firm, corporation person, or tractor means recognized legal entity under Texas other law, recognized any legal entity under Texas other original, contracting principal, with the law, original contracting principal, with the performance of for the prime contractor or performance all prime contractor for the of or which any part the work or services of all or any part of the work or services or prime original, contractor principal, or such original prime principal, or contractor such (b) perform, Neither the to contracted has perform. has contracted to employees the of the sub- nor subcontractor "(b) the em- Neither the sub-contractor nor employees of the be deemed contractor shall prime be deemed original, ployees or contractor for of the subcontractor shall principal, perform work original prime is to principal, such subcontractor or employees whom of the unless, prior beginning per- to the or services for whom such sub-contractor is contractor per- any or services to be of work unless, formance prior services to perform work or subcontract, the such subscrib- formed under any beginning performance of work or the into a have entered er and subcontractor performed to be under such sub-con- services expressly provid- written contract bona fide tract, have en- and subcontractor subscriber employees or ing the the subcontractor written contract ex- into a bona fide tered perform will such work the subcontractor providing shall pressly subscriber subscriber, (c) employees or services compensation benefits to provide workers’ pursuant to Subsection If is made no contract employees or the sub-contractor section, (b) original prime or of this performing such work while sub-contractor compensation provide workers’ tractor shall they employees of as if were direct or services coverage the subcontractor's insurance the actual The amount of subscriber. The amount employees or the subcontractor. by premiums paid incurred the subscriber or by premiums paid or incurred actual of the compensation cover- for workers' insurance compensation in- for workers' subscriber employees age or the on such sub-contractor coverage on such subcontractor’s surance may from of the be deducted sub-contractor may employees the subcontractor be de- or any price or other monies due the contract any price subcontractor’s or ducted from the subcontractor, the sub-contractor. (d) money In other due "(c) pursuant is made If no contract foregoing, the subcontractor lieu of hereof, (b) the sub-contrac- neither subsection compensation provide workers’ insurance employees employees of the sub-contractor coverages the subcontractor’s tor nor the during performance principal, employees of the or subcontractor shall be deemed by of the as evidenced certificates original prime subcontract for whom such contractor subcontractor’s work- insurance issued perform work or ser- is to sub-contractor and filed ers' insurance carrier vices.” subscriber.”). with the either could not or of a gaged a subcontractor subcontractor and employees, his coverage provide should not be allowed extend prime that a contractor could employees and his subcontractor agree to coverage extend to a subcontrac- statutory thereby employer, become their tor and employees, his passing the cost remedy benefit of the with the exclusive through to the subcontractor. As thus protection. amended, the bill was enacted. The new section paragraphs. 6 had four Section introduced, HB 1852 as like the 6(d) retained the 1917 text of section session, prior bills the would have deleted providing any subscriber who tried to existing provided section 6 and that a covering avoid employees subcontractor’s prime contractor’s workers’ would be deemed to be their employer for coverage insurance would not extend to a 6(a) compensation purposes.62 Section ex- employees except by subcontractor his pressly recognized that a prime contractor But the bill agreement.61 was amended agree could coverage extend to a existing the House and Senate to restore sub- 6(d), contractor and redesignated employees.63 section delete the his Section 6(c) defined precluding prime “prime sentence contractor” for the being deemed the first time as follows: (1983) Leg., posed by 61. Tex. H.B. 68th R.S. its terms any sublets the whole or ("(a) employees a subcontractor and the of a part performed work to be or done subcontractor shall not be deemed to be em- sub-contractor, said subscriber to then in ployees prime of a contractor for whom such any employe the event of such sub-contractor perform subcontractor is to work or services *25 injury sustains an employ- the course of his obligation part and there shall be no on the of ment he shall be deemed to be and taken for prime payment for the contractor to a sub- purposes all employe of this law to the be of employees contractor or to the of a subcon- subscriber, the and in addition thereto such compensation tractor of workers’ under this employe independent right shall have an of prime law. A subcontractor and contractor sub-contractor, against action such which may include in their written contract for the way by any shall in no compensa- be affected performance agree- of work or services an by tion provi- to be received him under the prime provide ment that the contractor will law.”). sions of this compensation workers’ benefits to the sub- employees contractor and to of the subcon- 6(a) ("A prime subcontractor and Id. premiums tractor. The amount the of actual may contractor make a written contract paid by prime or incurred the contractor for whereby prime the will provide contractor compensation coverage workers' insurance compensation workers' benefits to the employees for the sub- subcontractor of the may employees subcontractor be contractor deducted from the con- and to of the sub-con- price any tract or other monies owed to the Notwithstanding provisions tractor. the of contractor, (b) by prime Statutes, subcontractor 12(g), Section Article Revised person term "subcontractor” means who may provide the contract pre- that the actual perform any part has contracted to all or of (based payroll) paid by miums or incurred prime the work or which a services contrac- prime compensa- contractor for workers' party per- tor has contracted with another to coverage tion insurance for the sub-contrac- (c) "prime form. the term contractor” in- employees tor and of the sub-contractor "principal "original cludes contractor” or price any be deducted from the contract or person contractor” and means the who has by other monies owed to the sub-contractor procure performance undertaken to contract, prime any contractor. In such work or services and in connection therewith employees the sub-contractor and his shall be may engage perform subcontractors to all or employees prime considered contractor services.”). any part of work or only purposes compensa- for of the workers’ (Article 8306, tion laws of this state Revised 6(d) ("If Ann. art. Tex.Rev.Civ. Stat. Statutes, seq.) purpose.”). et and for no other any purpose to law subscriber with the avoiding any liability and intention of im- and their ry employer subcontractors includes contractor” “prime The term ambiguity in the then the contractor,” employees, “original contrac- “principal be contractor” would meaning “prime as those contractor” tor,” or Moreover, that construction and means unavoidable. commonly used terms are why question raise the of the statute would pro- to has undertaken who person jobsite contractor who owns prime or ser- of work performance cure the contractors, should, be prime like all other may en- prime vices. liability for trying from to avoid prohibited perform all or to gage subcontractors benefits, unlike or services.64 of the work any part contractors, not be allowed prime all other 6(b) “subcontractor” defined And section such benefits. provide to contracted to has person mean “a who of the work any part event, regarding statuto- perform all the law has con- prime contractor before as services which not clear ry employers was perform.”65 party to clari- variety tracted another of efforts evidenced much clearer after it, it fy and was contractor as referring prime to a By amended, introduced, 1983.66 HB another, the defi- works someone who enacted, like the six bills finally exclude an would nition of “subcontractor” sessions, suggested that three never prior “prime con- meaning if the But owner. lacking previously authorization 6(c) is to be in section tractor” defined to ex- prime contractors required was definition of “subcontrac- by the informed coverage to tend workers’ 6(b), in- it must also be tor” in section On employees. and their subcontractors 6(d), refers to the formed section consistent theme contrary, one as a subcontractor engages clarify when the bills the need all subscriber, that includes a term extended, not whether coverage was contractor. Sec- acting as his own others, HB like the never could be. 6(d) If all subscribers. applies to tion distinguish premises owners attempted 6(a)-(c) read address sections were contractors, the definition prime the subscriber and in which the situation *26 finally enacted could “prime of contractor” owner, no am- is not the prime contractor include a reasonably be read to meaning of contrac- “prime biguity contrac- acting as his own owner 6(d) have exist. Section would tor” would tor. the other sec- general application, while suggest HB for a moment The effect of I do not mean tions not. would drafting history in one of the 1983 stat- greater certainty that the provide towas determining Legisla- in area, re- ute is relevant comprehensive if a solution even 6(a)- enacting it. The various intent But if sections ture’s beyond reach. mained even (c) amendments do not reveal application and bills and of were also intentions, Leg- let alone the sponsors for consider- prescribed requirements legisla- history But the statuto- islature’s. contractor to be the ing any prime Inc., Root, dicta, 6(c). only & Williams v. Brown 64. Id. (Tex.App.-Texarkana 6(b). 65. Id. writ), opinion ex- and the Court's no why persuasive. The other plains it is not that cited two cases 66. We have been no, prior but involved a version also answered jobsite can whether a have considered v. Monsanto of the statute at issue. Wilkerson statutory employer of subcontractors be the Co., (E.D.Tex.1991). F.Supp. 1187 no, answered employees. One and their effectively argument rebut sions before 1983 did not legisla- tion does indicate a regarding the extension of the law tive intent that HB 1852 not be the law. compensation coverage to sub- workers’ employees and their clear
contractors was * * * allowing a to be and that Respondent and the amici curiae that of subcontractors support position argue his that the statuto- working property significant his was so ry construction urged by petitioner is bad change in 1989 that it would not have policy. way We have no judge such history occurred without comment. The matters and do not do so. Underlying legislation clearly existing shows that many arguments of their is a conviction all law was at times unclear. that the compensation system is Thus, argument the 1989 basically unfair. That issue also is not change the definition “subcontractor” judge. ours to presume We must that the not because it made was substantive was system just and reasonable.68 The correct, comment but it without could be Court’s construction of the statutory provi- not clear the law was before the what sions at issue is most consistent with that change. The 1983 definition referred to system. a prime or services which contractor “work per- party has contracted with another Justice WILLETT filed a concurring form”. The 1989 definition referred to opinion. prime or services which a “work perform”. undertaken to The has dissent WILLETT, concurring. Justice argues Legislature that the used “under- rancor, political vengeful times of mo- thing taken” to mean the “con- same as (and swiftly tives are attributed swiftly party”, just tracted with another but it is believed). unfortunate, This is but also likely that the used “under- unaffecting. judiciary, rightly under- taken” because it was more accurate and stood, is not a political institution but a ambiguity removed an in the 1983 statute. one, legal meaning we must decide cases point is that the argument of principled legal points, on the basis not change not it was substantive because political talking points. proves be- nothing was controversial backdrop against ap- cause appeal This something constitutes peared itself unclear. legal People Rorschach test: see in it what wish, they person’s and one commendable Finally, a number bills introduced *27 restraint is another’s condemnable activ- 1995 and 2005 clari- between would have Here, one (Entergy) a ism. side contends statutory employer fied who is on con- judicial requires plain-lan- that restraint a jobsites.67 The explains struction Court statute, why legis- guage reading failed bills are not of that the sur- indicative intent. I manifestation of found point lative would also out that est will is (Sum- in in legislative the fact six bills failed three ses- text. The other side (1995); 1626, (2003); Leg., Leg., 67. Tex. H.B. 74th Tex. H.B. 79th R.S. R.S. (1997); Leg., (2005). Tex. H.B. 75th R.S. (1997); Leg., H.B. 75th R.S. Tex. S.B. (1999); Leg., 76th R.S. Tex. H.B. ("In 68. See Tex Gov’t Code 311.021 enact- (2001); Leg., 77th R.S. Tex. H.B. 77th statute, (3) ing just presumed a it is that ... a (2001); Leg., Leg., R.S. Tex. H.B. 78th ”). and reasonable result is intended.... (2003); Leg., R.S. Tex. S.B. 78th R.S. (2) mers) reading judicial injuries; and con- such a activ- work-related brands a ism, intent demands more tractors cover their subcontractors’ gleaning who approach. Today’s holistic and embellished are also immune. case employees hybrid premises presents —whether uncomplicated: The law be- My view can serve as its own owner of language, and smacks Lewis gins with tractor and assert the same exclusive-rem- critics, in high voices raised Carroll when edy defense as a contract that it derision, against “judicial activism” inveigh employer. a direct asserts as rewriting refrain from judges because side of the chose. This text lawmakers working employees Consider: Two side reading a as enacted statute looking glass, company-owned workplace, side at a activism, not its zenith. It of is the nadir performing the same work when the same that even one Sum- must be stressed injuries. One accident inflicts the same supporters concedes stat- mers’ amicus company’s employee, worker is the direct Entergy’s read favor1—a ute can be employee, the other its contract both hav- aside, that, fury sound and “will result ing voluntarily coverage elected under the impact on not have a substantial probably written, owner-provided same workers’ compensation system as a workers’ compensation policy. If the meets owner whole.”2 Legislature’s “gen- elastic definition of re- agree I Court’s bottom-line solely eral contractor” —written terms (and deal, all, though not of its good sult do, they contractors not what what analysis), separately but I write because employees own—then its contract are regarding important raises issues this case agreed-to policy the same bound construction, judicial role employees. Ownership binds its direct no- fuller, that deserve more generally, more proscribes prescribes. where what the Act treatment. head-on things analysis— should drive our Two Entergy L Introduction —Whether Legislature’s language, open- which is Qualify As a “General Can ended, role, and this Court’s which is not. Contractor” respect policy-laden must We statutes give innu- Today’s simply sharp- leeway issue is stated but written wide qualify merable trade-offs therein. The ly disputed: premises Can reflected “general as a contractor” under the Texas Act’s definition of contractor” is (“a Act? Compensation sweeping Workers’ Amid the who undertakes to work”) debate, preliminary procure performance matters spirited two (1) (“a unchallenged: are carves out one owners narrow exclusion provide provides transporta- insur- motor carrier that to their coverage employees through ance own are tion service the use of an owner operator”). wording immune from tort suits statutorily over is inclusive Testimony ultimately 1. Written Texas Association Whatever decision the court Entergy probably will Hearing makes in the case of Defense Counsel: Interim *28 impact a have substantial on the workers’ Eight Charge Before the Senate Number compensation system [OJnly as a whole.... Comm., Leg., (April Interim State Affairs 80th relatively large owners or contractors can 28, 2008). afford to administer the kinds of insurance case, programs involved in the so we do not legislative testimony According 2. from this expect a sudden shift in this direction. pro-Summers amicus: Id. general the contractor services particular. but exclusive general perform.” similarly broad defini- has undertaken Act used pre-1989 exclusion) (with companion but a no (cid:127) tion Statutory employer: general A suggested definition “may tractor enter into a written general contrac- as its own not serve could agreement un- [with subcontractor] deleted the Significantly, tor. pro- der contractor in 1989 as reference explicit dual-hat compensation” vides workers’ cover- Today’s a substantive overhaul. part of to the subcontractor and age exclusive-remedy deny Act does employees,5 and such subcontractor’s procures the if the who defense agreement an “makes the coverage two provides work employer —the contractor the of the sub- “statutory employer”— define factors that and the subcontractor’s contractor jobsite. also owns purposes ... employees compensation laws.”6 By “under- agree I with Court. performance of (cid:127) procure taking] remedy: compen- Exclusive Workers’ Legislature’s work,” Entergy meets the covered employ- sation benefits are a This, coupled definition. brief-but-broad remedy” against ee’s “exclusive comp provision of workers’ Entergy’s with injuries.7 for work-related statutory-employer sta- coverage, confers Legislative revealed A. intent
tus.
by legislative language Legislature’s Chosen Words
II. building-block principle There is one Dictate the Outcome repeatedly and em- Court has declared are controlling provisions The Act’s guide” the “surest to what law- phatically: straightforward: enact- makers intended is what lawmakers
(cid:127) Any “person contractor words, “General interpreting are ed.8 We procure per- doubtful, undertakes those are not even where words service, or a either be,
formance of work are bound though their wisdom we through the of sub- separately or use Accordingly, since intent to honor them. The term includes contractors. text, accept must not is driven contractor,’ ‘original con- ‘principal construing the Act’s def- peculiar view contractor,’ tractor,’ or other ‘prime by its terms inition of contractor” analogous Indeed, term.”3 intent.9 legislative would subvert (cid:127) of what displacing it is the concreteness Any “person who “Subcontractor conjecture of actually to was said with
contracts with ac- meant that invites allegedly or what was part all or of the work perform Sys., S.W.2d 406.121(1). Spine Fixation Lab.Code§ 3. Tex. (Tex. 1999)). 406.121(5). Id. § 4. observers, including lawyers, Many often 9. 406.123(a). Id. § 5. legislative his- intent conflate 406.123(e). cases, Id. tory. They our are distinct. Under objective, where determining intent is 408.001(a). Id. clear, Legislative text is text is determinative. judges to discern history a device some use Brandal, 8. Leland v. unclear. intent when text is (Tex.2008) (quoting Fitzgerald v. Advanced *29 464
tivism, way put mischievous for courts appeals disregarded B. The a court of (or wind) and the scale key finger a provisions Act’s intent judicial legisla- thus substitute place in the constitutional intent. Our
tive
ignored
specific
it
definition
1.
requires fidelity, to what law-
architecture
“general
contractor”
actually passed.
makers
appeals
The court of
held “Entergy did
we must focus on what a
Consequently,
perform
not establish it had undertaken to
and, just
attentively, on
says
statute
as
work or services and then subcontracted
say, taking
not
care to honor
what it does
IMC,
part
of that work to
as a
changes, both additions and
substantive
contractor would have done.”11 To reach
deletions,
years,
always
made over the
and
conclusion,
this
court
relied on
presuming
Legislature
chose its
Inc.,
Root,
Williams v. Brown &
a 1997
carefully.10 As for what the Act
language
court of appeals
stating
decision
that “[a]
includes,
“general
its definition of
contrac-
any person
contractor is
who con-
(1)
things:
tor”
notable for two
a soli-
directly
tracts
with the owner.”12 The
(“undertakes
tary description
procure
entity
Williams court reasoned an
work”),
a
performance
including
owner,
“did not contract with the
but in-
(“
synonyms
‘princi-
non-exhaustive list of
arguably
stead
the owner”
fell
outside
contractor,’
contractor,’
pal
‘original
‘prime
court,
the definition.13 The Williams
contractor,’
term”);
analogous
or other
notes,14
today
the Court
committed a fun-
(“a
(2)
solitary
exclusion motor carri-
error, disregarding
damental
the Labor
transportation
provides
er that
service
specific
Code’s
definition of
through
operator”).
of an
the use
15
tractor”
generic
favor of a more
defi-
Any
that falls
the former
entity
inside
supplies
nition.16 The
often
its
outside the latter
is shielded from tort
dictionary,
provides
own
where
liability
provides
compensa-
if it
precise definition, courts must honor that
coverage
employees.
tion
to its contractors’
meaning.17 Importantly,
substituted
excludes,
give
As for what the Act
we must
admonition holds true
if
Legisla-
even
Legislature’s
effect to the
deletion in 1989
(“contracted
ture’s technical definition departs
from the
provision
with another
ordinary
term’s
party”)
contemplated
meaning.18
So while a
general con-
contracting upstream
prem-
tractor
with a
ordinarily
be
thought
ises owner.
to contract
with the
own-
Garrett, Inc.,
v.
quoted
See Cameron Terrell &
618
15. The
then-appli-
Williams court
(Tex.1981);
"general
S.W.2d
540
Eddins-Walcher
cable
definition of
contrac-
Calvert,
tor,”
Butane
v.
virtually
Co.
947 S.W.2d at
which is
(1957).
identical to the current definition.
("A general
16. Id. at 677
contractor is
11.
465
observes,
legal
determining
test for
though, as the Court
whether
er —even
Entergy can
the exclusive-remedy
invoke
general
its
con-
serving
an
own
owner
explicit-
defense is not whether the statute
uncommon”19—
“by
tractor
no means
ly includes
a simple
“owners.” The test is
way to the
give
construction must
that
Entergy
Chapter
one: Does
meet
406’s
specific definitions.20
Act’s
eligibility criteria?
The record shows
Williams
in
Contrary
suggestion
to the
clearly
Entergy
that
to pro-
“[undertook]
cannot double as a
that an owner
cure the performance
of work”
it cannot contract with
contractor because
Deposition testimony
IMC.23
established
itself,
ex-
blanketly
the statute does not
that Entergy
“supplement
hired IMC to
meet
premises
clude
owners who otherwise
Entergy employee
workforce” and help
undemanding
Nothing
the Act’s
criteria.21
maintenance,
perform
including “water
premises
in the Act dictates that a
turbine-related,
generator-related
provides
procures
who
work
work,”
its
plant.
at
Sabine
Summers’ own
that confer
coverage,
only
two factors
summary-judgment
response
concedes
status,
statutory-employer
lack the same
Entergy
that
“entered into a contract with
immunity granted someone
comp-bar
to perform
IMC
various mainte-
[IMC]
performs
very
same actions but lacks
Entergy’s plant
nance work at
Bridge
City,
Entergy undeniably
title to the worksite.22
Texas.”
“un-
Brown,
1983
a
contrac-
necessarily an intermediary
tor was
long-discarded
it utilized
2.
upstream
both
contracts
with the
of “subcontractor”
definition
owner and downstream with the subcon-
(and
appeals
this case
The court
owner’s contracts Wilk-
tractor. As
court) also
in relying
Williams
erred
downstream,
erson were
all
could not
he
Co.,
v. Monsanto
on Wilkerson
a federal
statutory employer.28
be a
holding
prem-
court decision
that a
district
Wilkerson was
Assuming
correctly
de-
statutory
cannot
employer
ises owner
be
cided, it
any interpretive
lacks
force to-
(because
it cannot be a
contrac-
for a simple reason: Wilkerson
day,
tor).24 Here,
too, the mistake concerns a
entirely
turned
on four
the Legisla-
words
Wilkerson,
misused
definition.
during
ture removed
its 1989 substantive
case,
today’s
governed by
unlike
pre-
post-
rewrite.29 Here are the
pre-1989 definition of “subcontractor”:
“a
that,
person
perform
contracted to
all
overhaul definitions
construed to-
who has
or
any part
gether,
of the work
services which
control our decision:
prime/general contractor
subcontractor
pre-1989
person
procure
person
perform
“the
who has undertaken to
“a
who has contracted to
performance
any part
of work or services” and all or
of the work or services
“ ‘prime
‘principal
prime
contractor’ includes
which a
contractor has contracted
31
tractor,’
contractor,’
‘original
‘general
party
perform”
with another
commonly
contractor’as those terms are
30
used”
1187,
(E.D.Tex.1991).
F.Supp.
lationship
24. 782
1188
between the owner and the con-
1188,
employees,
F.Supp.
tractor’s
782
at
case,
added)
language
while in
(emphasis
(relying
25.
at
this
contract
ex-
Id.
1189
28, 1983,
R.S.,
950,
plicitly
Entergy
May
Leg.,
"principal
identifies
68th
ch.
Act
1,
6(b),
5210,
employer"
Entergy
right
§
and reserves to
sec.
1983 Tex. Gen. Laws
statutory-employer
against
to assert
(previously
status
codified at Tex.Rev.Civ. Stat.
8308-3.05)).
employees’ personal-injury
contract
suits.
art.
28, 1983,
R.S.,
May
Leg.
29. See Act of
26.
Id. at 1188-89.
68th
950,
1,
6(b),
§
ch.
sec.
1983 Tex. Gen. Laws
5210,
(amended 1989).
28, 1983,
R.S.,
May
Leg.,
27. Act of
68th
ch.
950, 1,
5210,
6(b),
§
sec.
1983 Tex. Gen. Laws
12,
28, 1983,
1989,
R.S.,
May
Leg.
30.
5210 amended Act of Dec.
See Act of
68th
71st
C.S.,
950,
1,
3.05(a)(5),
6(c),
Leg.,
§
2d
ch.
sec.
1989 Tex.
ch.
sec.
1983 Tex. Gen. Laws
1, 15,
12, 1989,
Gen.
amended Act of
Laws
as Tex. Lab.Code
Dec.
codified
406.121(5).
C.S.,
3.05(a)(2),
Leg.,
71st
2d
ch.
sec.
Tex. Gen. Laws
28. Another
between
distinction
Wilkerson and
Wilkerson,
R.S.,
May
Leg.,
case: In
the contract between
Act
See
68th
6(b),
plaintiff's
the owner and the
direct
ch.
sec.
1983 Tex. Gen. Laws
(amended 1989).
affirmatively
any employment
disclaimed
re-
person
procure the
“a
who contracts with a
undertakes to
“a
current
service_The
perform
part
contractor to
all or
performance of work or a
contractor,’ ‘origi-
‘principal
work or services that the
contrac-
term includes
contractor,’
perform”
contractor,’ ‘prime
or other
tor has undertaken to
nal
include
analogous
The term does not
term.
provides
transporta-
carrier that
a motor
*32
through
use of an owner
service
tion
operator”
single
longer imposes
key change
a
class of
current definition no
an
definition excludes
current
“upstream
eligible persons:
contract” condition on
certain motor
otherwise
carriers, nobody
contractors
else
notion
upstream-contract
de- mers insists
above, the 1989 reform bill
seen
As
party,”
another
leted “contracted with
transplanted,
not deleted but
was
sub-
an-
phrase that
upstream-contract
critical
phrase
sumed now
“undertakes
suggested
premis-
and
a
chored Wilkerson
procure”
the definition
hat of
not wear the
es
could
up-
tractor.” This contention —that
compari-
The before-and-after
contractor.
condition
moved but
stream-contract
was
to brush aside. While
son is difficult
counterfactual,
facially
removed —is
Act indicated that a contractor
1983-1989
betrayed by this
truth: “un-
inconvenient
else
action on behalf of someone
undertook
procure”
appeared
also
in the
dertake[ ]
(the owner),
in 1989 re-
Legislature
pre-1989
though
definition.
Even
Our
upstream inference.
moved that
overhaul,
phrase predated the 1989
Sum-
to treat such omissions as
require
cases
us
argues
implicitly freighted
mers
became
princi-
a
meaningless,34
and not
meaningful
(in
explicitly
what
once
stated
oc-
deletions
ple
prudent
more
when
even
definition).
un-
argument
different
This
here,
cur,
a substantive overhaul
as
within
persuasive. Updated
require up-
criteria
piece
legisla-
the lone
that constitutes
analysis.
It is untenable that
dated
considering.35
are
tion that
lawmakers
important
four words so
Wilkerson
only to un-
remains instructive
Wilkerson
were,
deleted,
into three
though
imported
must
statutory
construction
derscore
predated
Sum-
honor
definitions.
words
Wilkerson.
argument
mers’
would reinsert what law-
rooted in
urges
Summers
a construction
part
makers took out and declare this
language.
conceding
now-repealed
While
part that
massive modernization bill—the
party” ap-
another
that “contracted with
statute,
precedent upon
anchors the
which Sum-
in the current
Sum-
pears nowhere
535,
1981).
rett, Inc.,
(Tex.
406.121(1).
In
618 S.W.2d
32.
Lab.Code§
Tex.
sense,
help Entergy
Entergy
hired IMC to
406.121(5). Today's
§
definition of
Id.
obligation,
statutory one
upstream
fulfill an
(and
slightly
was tweaked
“subcontractor”
service, instrumentalities,
at that:
"furnish
nonsubstantively)
part
codifica-
of the 1993
efficient,
safe, adequate,
and facilities that are
May
Act of
tion of the Labor Code.
and
reasonable.”
See
UtiiXode
R.S.,
406.121(5),
Leg.,
ch.
sec.
73rd
§ 38.001.
Laws
It is derived
1993 Tex. Gen.
the 1989 overhaul's def-
almost verbatim from
statutes
presume that lawmakers enact
35.We
Leg., 2d
Act of Dec.
71st
inition.
knowledge
existing
complete
law
"with
C.S.,
3.05(a)(5),
1989 Tex. Gen. Laws
ch.
it,”
Water
with reference to
Acker v. Texas
and
1, 15.
(Tex.1990),
Com'n,
intentional, Cameron,
Ament,
(Tex.
are
omissions
34. See In re
1994)
curiam);
473 “cautiously,”58 citing the then, proceed legislative we record in this case even conflict as of- do so: that such materials sometimes mindful converge goal and that our is they ten as (cid:127) inaccurately: misstating key when create, solve, 59 ambigui- not to “to but legislative changes to the draft Act in rare where we mine ty.” Even cases occurred;61 clarify secondary help ambigui- sources (cid:127) playing selectively: up friendly snip- text, not to the ty, while limited judges, pets they reinforce believe be the text.60 always should limited interpretation ignoring wished-for snippets it;62 that subvert Indeed, vividly this case demonstrates (cid:127) legisla- perils misleadingly: mischaracterizing the of uncritical reliance the actions;63 It history. distressing import legislative tive those Johnson, acknowledges Mgmt. plemental v. 58. Alex Servs. brief that "contract- Sheshunoff 644, (Tex.2006). party” during 652 4 ed with 209 n. another was deleted the 1989 reform when re- “subcontractor” was Shreveport v. Grain & written, United States Eleva- "though extensively,” the amicus Co., tor U.S. S.Ct. 77 L.Ed. 287 53 now insists. Rathbone, (1932) (quoting v. 175 Hamilton Another amicus brief contains at least two 20 44 L.Ed. S.Ct. 219 U.S. missteps recounting Legisla- factual the (1899)). First, ture’s 1989 deliberations. the brief in- states, accurately "In the draft bill considered against Frankfurter what 60. Justice cautioned session, during regular immunity the ex- was judicial reading": he called "loose "Loose owners, tended well as as contrac- judicial reading makes for loose appeared tors.” The word "owner” never encourages writing. practice It the illustrat- session; during regular appeared the in a ed cartoon in which a senator in a recent tells during special House revision first-called colleagues 'I new bill is his admit this too Leg., session. Tex. S.B. 71st 1st C.S. just We’ll have to " complicated understand. (1989); Tex., Leg., H.J. of see also 71st 1st pass it to find out what it means.’ Felix (1989). again, C.S. 76 then errs brief Frankfurter, Reading Some on the Reflections stating subsequent special [the "in the session Statutes, (1947). 47 Colum. L.Rev. Legislature] removed owners from granted immunity.” Nobody the list actors example, 61. For one amicus curiae mistaken- Legislature in either chamber removed "owner” in ly up- deleted asserts session; opposite, special just the during first-called language stream-contract momentarily during "owner” this misstep This was added nonsubstantive codification. (and matters, special argues from the bill as the amicus false session absent adopted during premise the next session several that since "contracted another later). challenged by op- party" phrase the months Id. Unless amicus bolds labels —a counsel, inaccuracies, posing "enlightening” however omitted its ab- such —was inadvertent, carry potential Entergy Legisla- aid “the real to mislead sence cannot since judges judicial decisionmaking. change ture intended no substantive to the law and skew Thus, since law- its codification.” unsurprising It is 62. See note quo, wanted to the status makers maintain infra positive and elimi- advocates accentuate phrase read back into the Act a critical must negative. cherry-picking, nate Such problem: deleted. One observed, Judge famously Leventhal Harold upstream-contract provision, which is indeed equivalent entering "the crowded cock- "enlightening,” during was deleted not looking party tail over the heads during nonsubstantive codification Aniskoff, guests Conroy friends.” overhaul, one’s when 1989 substantive lawmak- 511, 519, 113 507 U.S. S.Ct. *38 major changes. a raft of ers enacted See Act (1993) (Scalia, J., concurring). L.Ed.2d R.S., May Leg., 68th ch. 6(b), sec. Gen. Laws 1989). above, (amended supra Interestingly, this one brief amicus As noted note apparently Legislature premises sup- realized error because its states the "removed its then, confronted gy’s way, And when tidbit Summers it dismisses as some- that can spun thing from the record be Enter- mistakenly.64 uttered Dickson, granted passage, owners from the list actors immu- 64. Just before final Senator nity.” suggests Legislature opposed immunity general This took tar- tort con- tractors, geted to eliminate action "owner” from a stating attached a floor amendment pending The draft. record belies that a bring subcontractor’s could workers suggestion. Nobody this party against general "removed” the word "third ... action said session, during special "owner” the second contractor.” Senator Dickson contended that, amendment, because no bill session ever included the refinety absent his owner word "owner.” You cannot remove what would be immune if an accident killed a sub- exist, subtracting does not what employees: is not there. contractor’s "Yes sir seems to implies The locution negligent, lawmakers me ... no [that] matter how no was, proactive steps strip took "owner” from a operator matter how much at fault that bill, killed, pending but "removed” is not the same many people and no matter how he he Nothing as "not included.” in the record wouldn’t be liable.” Debate on Tex. S.B. 1 on Senate, specific shows action to remove "owner” the Floor Leg., 71st 2d C.S. 17 during (Nov. 20, 1989) from special bill that final (transcript session. available from altogether, though Office). The word was absent Senate Staff Services nothing suggest why. record contains Senator Edwards: So in a like case the Phil- suit, stating Another brief follows lips refinery explosion, that dur- Phillips if had been session, ing special law, the first negligent your after the House amendment wasn’t "owner," passed a killed, bill contained though the Sen- even people dozens of were ate "refused to concur in the Phillips House amend- any way wouldn't be liable in literally ments.” While negligence?” true—the Senate did their reject changes- suggests in fact House sen- Senator Dickson: He would be immune. —it specifically ators balked at "owner.” ex- according Not Would not be liable to Senator actly. passed After the Senate Glasgow’s Senate Bill my reading construction and everything the House struck below the enact- new statute. clause, ing substituted an earlier pro-plaintiff House- Id. Senator Dickson's amend- (which passed markedly version differed ment was later colloquy removed. This did version) the Senate and sent it "general back across not address whether contractor” in- Tex., owners, Leg., the rotunda. See H.J. of 71st 1st cluded but it is notable that Senator (1989). Nothing suggests C.S. 76 hypothetical Senate presumed Edwards’s the owner refused to concur because of "owner.” and the contractor were one and the fact, (co-authored by a treatise the lead Sen- same. If that contradicted the Senate's col- sponsor) intent, ate states the Senate’s refusal rested lective no senator rose to correct it. entirely separate issues. See As Senator Dickson described own his Montford, supra (noting amendment, note at 3 consensus stalled it was to ensure that an owner’s due to "colossal dispute injured differences in the contract worker would not be limited proposals”). resolution and benefits comp Still an- says benefits. Summers Senator other brief prior asserts that "efforts in drafts "simply Dickson was confused” and later rejected.” include the term 'owner' "got were sort of educated” that the bill did not wording suggests multiple targeted This contemplate doubling ef- owners drafts, pending forts to erase "owner” from transcript tractors. The floor reveals no such but the lone mention of enlightenment. "owner” came in the session, special first in a bill that died (or over While dispositive this discussion is not relevant) unrelated issues. The brief states House even Dickson’s view is —Senator alone, "specifically amendment merely included the word fairly his attributable to his " ‘owner’ and the colleagues Senate "refused to posed concur presented the issue —it amendment, in the House the bill failed.” here: acting as a misleading: inference is the House If off-target contractor. Senator Dickson was amendment was not a rifle-shot inclusion of because never intended to let status, "owner” but a general-contractor wholesale substitution of its owners claim no bill, earlier with all the "colossal differences” senator called it to the Senate’s attention. noted Senator Montford. reason I mention it is to stress how *39 475 behavior, reading and surd.”68 While a looser is war- guide exist to Laws straight-up reading pro- ranted when a statutory language rather than resting on (not a patently duces nonsensical result scavenger hunt for extra- on a embarking merely unpleasant one), this-is not such contrivance,65 we prone textual to clues a case. to everyday struggling Texans ensure that their manage and affairs
decode the law reading, separate a Under Summers’ on a rely it can statute “to consistent with but liability, would tort a escape to says,”66 having without mean what performs every con- legislative-record to scour the lawyers hire tracting-related separate chore the con- (and contradictory) often unexpressed tractor would not. More perform would to held, if recently As indicia of intent. we point, a contractor that over- hazy, morphing must resist text not property sees work its own could not statutory construction into exca- a qualify as contractor under the “take the at vation and instead Act. That perhaps true the 1983- rummage legis- Act, held, around in its word and as but the Leg- Wilkerson top-to-bottom lative minutiae.” islature’s rewrite amended
the law.
injured
not “absurd”
if
C. The Act is
complain
One can
that current comp
deemed
employees receive the same
inadequate,
unpersua-
benefits are
it is
direct
injured
employees
relief as
equate
equality
sive
and con-
—direct
must
a re-
adopt
insists we
employees
Summers
tract
receiving the same bene-
laxed
more consonant with
interpretation
jobsite—
fits when the
owns
reading “general
absurdity.69
nothing
contrac-
fairness because
There is
nonsen-
(or
uncommon70)
prem-
tor” to
contract
the same
a
limit
workers
sical
even
about
serving
ises owner
as its
recovery that direct workers receive would
own
or a
Act that
“meaningless
reading
render
and ab-
tractor
results
the term
history
Legislature’s
(by 68. We
words
manipulable
can be
enforce the
alike),
reading
produce
unless
lawyers
written
such a
would
judges
and that
indeter-
its
Tex.,
Fleming
Inc.
absurd results.’
Foods
v.
selectivity
minacy is
made worse
(Tex. 1999).
Rylander, 6
S.W.3d
with which it is utilized.
ruling
argues
69. Summers
the Court's
would
legislator voting
imagine
It
65.
not hard to
absurdity by
up
opening
work an
actually opposes
read-
for bill she
then
neighborhood
benefits to a
ing
interpretation
record a restrictive
into the
your
child who
The Act
rakes
leaves.
ex-
impact.
that aims to blunt
bill’s real-world
argument,
pressly
speaking
contradicts that
today’s
specifically,
crafty
Looking
case
at
directly
employed
to "a
as a domestic
"general
who wanted
contractor”
lawmaker
engaged
worker or a
in em-
casual worker
narrowly
could file
bill that ex-
construed
ployment
personal
incidental to a
residence.”
plicitly
the word "owner"
the defini-
added
406.091(a)(1).
The Act ex-
Tex. Lab.Code
tion,
urge
stay
quietly
that the bill
buried
then
coverage,
empts
employees
though
such
litigant
cajole
committee so a future
can
voluntarily
employer-homeowners
it allows
judge
believing
Legislature's
that the
fail-
into
pro-
accept
rights
responsibilities
legislative rejec-
pass
ure
the bill evinces
406.091(b).
viding
coverage.
such
Id.
It
tion of an owner-included definition.
legally "absurd”
would be curious to brand
something
permits. Comp-
the statute itself
Spine
Sys.,
Fitzgerald
v. Advanced
Fixation
lawnboys
possible
are
under the Act
covered
1999).
(Tex.
Court,
Legislature,
because the
not this
ex-
plicitly says so.
Johnson,
Mgmt.
Servs.
Alex
Sheshunoff
(Tex.2006).
n. 4
70.
premises owners
The comp
their subcontractors’ workers.71
bare,
Laid
Summers’
complaint
core
quo exchanging uncer-
system quid pro —
that benefits under the Act are
stingy.
too
recovery
tain tort
for no-fault medical and
ill-equipped
We are
to assess
charge.
this
benefits —has been the
income
embedded
Act,
alleged
its
whatever
shortcom-
public policy of Texas since Woodrow Wil-
ings,
century-old public
embodies
policy,
President,
son became
and wider cover-
Legislature’s
courts must read the
more,
is,
age
injured workers receiv-
enacted,
—that
words as
not revise them as de-
ing
compensation only
such
advances
—
sired. “The
or expediency
wisdom
policy.
Legislature’s
law is the
prerogative, not
ours”75—a fundamental point
recently
authority
Judges
D.
have no
second-
“arguments
reaffirmed:
that the statute is
myriad
guess
policy judgments
or
unwise
unfair must be addressed to the
Compensa-
codified
the Workers’
Legislature.”76
Texas
tion Act
may
It
be correct
lawmakers in
restructuring
The 1989
of the Texas
permit
1989 did not intend to
a dual-hat
scheme—labeled
role for
owners. Workers’ comp
“the most divisive
endeavor in
Herculean,
reform
multiple-session
was a
politics”72
Texas
contemporary
undertaking, one
tougher
made
short
-with
—con-
regular
sumed the 71st
one
drafting
deadlines for
and short fuses for
special
fraught
“two
sessions
with ob- drafters. Heaven
laws sometimes
knows
stinacy
emerged
pass quickly
and emotion.”73 What
urgent
amid
circumstances
quintessential
embodied innumerable and
discussion,
with scant
yielding untoward
legislative judgments.
recovery
ramifications over time.
examples
Recent
workers’ comp
by
benefits is dictated
of voting-without-reading abound, includ-
Legislature’s definitions,
(and
by
ing
newly passed $789,000,000,000
Court’s declarations.
must
refrain
1,073-page)
We
Recovery
American
and Rein-
chose,
rewriting
2009,
text lawmakers
Act
provided
vestment
“a
recovery
point:
71. One side
While
willing
of workers'
should be
they
to take them as
find
Arnim,
benefits
a covered
worker’s
them.” Simmons v.
110 Tex.
220
(or
legal beneficiary's)
(1920).
remedy
his
exclusive
S.W.
death,
injury
the event of a work-related
408.001(a),
very
next sub-
Garcia,
Comp.
Tex Lab.Code
75. Tex. Workers'
Comm’n v.
surviving
section makes clear that a worker's
(Tex. 1995)
893 S.W.2d
(quoting
spouse
exemplary
or heirs
sue for
dam-
Davis,
(Tex.
Smith v.
426 S.W.2d
ages
if the death “was caused
an intention-
1968)).
al
act or omission of the
employer's
gross
negligence,”
id.
Jorden,
(Tex.
In re
76.
408.001(b).
2008).
weigh
Legislature’s
We sometimes
statute, but,
power
heeding
to enact a
Justice
supra
Montford,
72.
admonition,
note
at 1.
weigh
pru
Holmes's
we never
its
fully
dence:
very
"We
understand ...
Williford,
supra
note
at 11-12.
powerful argument
against
that can be made
legislation,
the wisdom of the
precedent reaching
century
Our
point
nothing
say,
back a
we have
itas
is not our
judicial modesty,
Haskell,
demands
and for such mod
concern.” Noble State Bank v.
root,
esty
to take
"[c]ourts must take statutes
U.S.
31 S.Ct.
Legislative but desired quired and well-settled case, in this definition “general contractor” It is an accommodation well-founded. divining not. judicial role is When carefulness, not certitude. do, rooted must intended to what lawmakers up- easily can reinsert an Legislature in fact did do and they on focus what it, walk down permitted I was to read Posting M. Herszenhorn to of David Blog gaze upon it from several The Politics and Government into the well and Caucus: Times, http://thecaucus.blogs.nytimes. it. When we angles, even to touch bill, final-draft-on-stimulus-bill- com/2009/02/13/ complete-with-last-minute-edits/ 2009, at about four o’clock voted on that (Feb. single morning, member of the not a Lander, EST). Mark New See also 9:52 it; single member of read not a House had Bailout, N.Y. Terrain For Arbiters Of Times, read it. the Senate had (describing B1 the no-time- at Nov. surrounding passage for-reading dynamic tax, luxury example im- is the federal 78. One financial rescue 2008 federal the October everything from furs to posed in 1990 on example federal package). Another classic pain-free, Proponents it as a yachts. saw Act, Budget Reconciliation the 1989 way progressive to raise tax palatable and unnumbered, thousand-plus, of a consisted revenue, staggering. The impact was but the together pages bound and unindexed throwing industry capsized, boat-building Cox, Why Rep. Christopher Con- rope. See work, out of workers thousands of blue-collar I, Work, Lecture # 406 gress Part Doesn't straining public welfare and unem- in turn 11, 1992) http://www. (reprinted at (Sept. budgets workers ployment as dislocated heritage.org/research/governmentreform/ swiftly repealed Congress sought relief. HL406.cfm): Boating Bad Hampton, Casts tax. Phil Off copy member There was no other Drowns, Times, Luxury Tax Sales Swell After read, in this other than what was look at or Aug. at 01B. USA Today, allow, while I was not able Now I will box. if it provision believes our fined terms.”84 The enacted a stream-contract contractor, legalism specialized that hon- definition of interpretation wooden spirit, but not its upstream- ors the letter law 1989 deleted not slip through owners letting premises condition, thus injunction contract but also the loophole. an unintended interpret synonyms commonly
tractor “as those terms are term, If used.”85 a statute defines a “a Brief Take A Dissent IV. *42 by court is bound to construe that term its briefly The Court addresses the dis- statutory only,”86 definition deference that arguments, can sent’s but more be said. where, especially seems warranted chief contention The dissent’s law- here, the statute omits an earlier directive “expressly general makers tethered” con- case, apply usage. common “commonly to other terms that are tractor given the ordinariness of owners to mean a has understood contractors,871 acting general as their own “ ‘prin- contracted with an owner”79—like fail outright to understand the dissent’s contractor,’ contractor,’ ‘original cipal rejection of contractor” “owner as dissimi- ... ‘prime contractor’ all terms that envi- lar. tripartite relationship” among sion a an owner, contractor, and subcon- Second, the dissent looks for support acknowledges tractors.80 The dissent statutory definitions of “contractor” out- listed terms “are not exhaustive” but con- Compensation side the Workers’ Act that cludes, conclusorily, rather that the notion explicitly mention a third-party require- simply of an “is not anal- owner-contractor However, ment.88 none of pro- these cited 81 ogous.” visions define contractor. There statutory only exists Texas law one defi- Court,
Like the
I
argu-
find the dissent’s
term,
nition of this
Labor
section
Code
unpersuasive,
ment
for several reasons.
406.121, the
at
provision
today.
issue
First,
the dissent cites the “common us-
“contractor,” though
Act nowhere defines
age” provision of the Code Construction
contractor,”
“independent
the term most
urging
“commonly
Act82 in
understood”
analogous to
However,
pro-
the non-Act “contractor”
reading
contractor.
dissent,
visions cited
very
provision
the Act’s
next
is defined
stresses that
(immediately
usage”
yield
specific leg-
“gen-
“common
must
below the definition of
contractor”)
Thus,
“ordinary
islative definitions.83
eral
as someone
con-
“who
meanings
applied only
perform
should be
to unde-
tracts to
provide
work
ser-
(O'Neill, J.,
dissenting).
Tijerina City
Tyler,
79.
tracted such
fortifies
—
interpretation.
Court’s
*43
AV.
Brief Take on Justice
Third, the
relies on
of our
dissent
two
Hecht’s Concurrence
“recognized
have
prior cases
assert we
correct,
my understanding
If
the dis-
century
for almost a
that a contractor” has
reject
original
senters
their
of
view
A
third-party requirement.90
a
careful ex-
case and
a premises
now insist
owner has
cases, however,
amination of these
shows
statutory-employer
never been entitled to
an in-
that both cases concern whether
by providing comp coverage
status
to sub-
employee
or an inde-
jured worker is
contractors and their employees. Con-
contractor and not
pendent
whether
versely, the Court and JUSTICE HECHT
qualify
owner can
as a
apparently believe that access to the exclu-
Together,
contractor.91
the two cases use
sive-remedy
by providing
defense
such
phrase “independent
contractor” nine-
coverage
perhaps
has been available
since
phrase “general
teen times and the
con-
provision
added
when
that is
simply
tractor” none at all. The cases are
Code,
section
of
Labor
now
406.124
inapposite,
though again,
focusing on
certainly
today. My
and is
posi-
available
contractor,” they
atten-
“independent
draw
tion,
above,
detailed
is that
the defense
tion to the Act’s current definition of that
was made available in
when lawmak-
term,
requires
one that on its face
a third-
language
ers
third-party
removed
from the
party relationship,
“general
unlike the
Act.
immediately pre-
tractor” definition that
it.
cedes
and Justice Hecht’s atten-
Court’s
Finally, the
earlier
absence
“owner contrac-
tion
section 406.124 and its
en-
(and
unhelpful
tor” from list the dissent concedes is
acted versions is
unneces-
(something
sary my
in
in
given
nonexhaustive92
we must con-
view
the deletion
liberally)
upstream-contract
language).
strue
is less notable than the
Sec-
906;
406.121(2)
Southard,
Shannon,
(emphasis
89. Tex. Lab.Code
add-
160 S.W.2d at
at
ed).
257 S.W.
522-23.
311.005(13) ("
‘Includes’
Code
Tex. Gov’t
J„
(O’Neill,
dissenting)
90.
pendent subcontractor and to cover wishes sand-plus legislators Texas who have dealt employees. gen- the subcontractor’s The past with workers’ over the in provision eral-contractor was added ninety-six years. simply I do not share substantively in and rewritten “ambiguity” diagnosis,93 Justice Hecht’s Ias discuss above. though certainly I share his aversion essentially I agree with Justioe O’Neill text, not, divorcing plain or from context.94 on point. parties rely this None of the For the reasons discussed Parts I-IV 406.124, section and it to the is irrelevant above, disagree I that the Act can be read key inquiry: premises whether owner way requires either and thus a gestalt can be a contractor under section near-century examination of a provision 406.123. The latter has never subscribers, machinations for whatever authoritative applied to all but is limited to Today’s gleaned odyssey, contractors. lessons can be from that issue is premises interesting whether a can fall it I though Again, owner within be.95 (Hecht, J., concurring). 93. 282 notion that our decision should turn on a rule statutory ambiguities that construes in favor City Hughes, Rockwall v. coverage against comp of workers’ and com- (Tex.2008) (Willett, J., dissenting) liability. mon-law tort I not we do believe ("The not, import language, plain must say Legislature, actually many can differ- context, surrounding par- be drawn from the Legislatures, urges comp-over-tort ent rule ticularly construing everyday when words uncertainly whenever arises. The phrases inordinately that are context-sensi- expressly incorporate of course could such a tive.”). Act, preference into the but it has not done so. Compensation finding history The Act and the com- Besides little useful in the Workers’ 406.124, disagree negligence comprehen- of section I with the mon law of are also both general-contractor injured employees. hold that tractors’ would The Court version, pre-1989 pins analysis unlike its does its on a provision, provision designed from as was premises acting prevent not forbid a “subscribers” creating contractor. sham its own subcontractor relation- ships in order covering to avoid their own VI. Conclusion injured employees. Remarkably, neither parties nor the dozens of amici curiae charged exercising are Courts proffered this case have such an inter- will,96 judgment, judicial judg- not pretation. Although the Court concludes adju- ment —awareness of the line between regard the law this has remained legislation refusing dication and essentially the same since Legis- giving it—means legis- cross wide berth to lature first afforded a general contractor matters, judgment. policy lative On we contracted party “ha[d] with another disinterestedness, must aim for utter perform” right work the to voluntarily meaning interpret must the Act statutory assume employer status in 1983. written, might not as we it. have written Had all always “subscribers” been statuto- Compensation The Texas Workers’ Act is ry employers of subcontractors’ employ- trade-offs, replete policy with countless ees, revision and its 1989 role, and our confined one defined chiefly iteration would make no sense. duties, limits and powers, is to them, construe statutes as we find not to parties and amici appear agree, second-guess or refine them. Willett, I as do and Justice that before owners were not The Court has reached the correct re- contractors” under the Act. appropri- sult, above, and for the reasons discussed I then, inquiry, ate is not whether the 1989 IV, V, join all but Parts and VIII of its “general contractor” definition excludes decision. premises owners, posits, as the Court *45 Legislature whether the intended to dissenting Justice O’NEILL filed a change prior by expanding law the defini- opinion in which Chief Justice premises tion to include owners when it JEFFERSON and Justice MEDINA the Act in expressly rewrote 1989 and joined. tethered the term to others un- commonly O’NEILL, Justice dissenting, joined by derstood to mean a who has con- Chief Justice JEFFERSON and Justice tracted Legisla- with an owner. Had the MEDINA. change ture intended to the law 1989 today premis- The Court concludes that and for premises the first time afford own- (and pay recoup) es owners who their exclusive-remedy against sub- ers the defense compensation premi- contractors’ workers’ employees, subcontractors and their it are, been, always ums and have surely entitled to would been simpler say have to so the Compensation “subscriber,” Workers’ Act’s exclu- by using the broader term sive-remedy against defense their by including subcon- the term contractor” “owner sive, systems compensating statutory system time-honored of us elevate the over the com- injured system reject any apply individuals. While I mon-law would reme- dy suggestion statutory coverage aligned whenever is unclear. from Summers and his compensation amici that workers' is a disfa- remedy, agree (Alexander
vored likewise I cannot that in 96. See The Federalist No. 78 Ham- ilton). Legislature all cases of doubt the would have premises to allow policy sound represent analogous terms description statutory employers to become contractor. owners general
define employees by providing their contractors’ noting at the outset. bear points A few coverage, potential- workers’ recovery potential First, workers’ whether employees number of eli- ly expanding common law or under greater is the Act.1 benefits under gible to receive Act, and whether Compensation Workers’ require expansion an would Whether such safety workplace promotes scheme one benefits, or premiums, adjustment call, not other, ais over something Act is provisions other into the Second, cannot contract one ours. job can Our decide. only policymakers Legislature did if the protections Act’s Legislature intended. Enter- to discern what it; accordingly, that intend to allow option body have to And that has restricted right might gy reserved defense contrac- statutory-employer analogous “principal parties assert Sum- contractor[s],” or that employees, tor[s],” “prime against “original IMC’s compensation ben- accepted mers workers’ contractor^,” that contract entities (and Entergy deducted paid efits parties for third perform work not inform price), does from the contract liability in the absence premises no face finally, And wheth- statutory analysis. on the Based premises. control of the afforded the should be er owners appropriate statuto- language and statute’s by paying their protections Act’s agree I do not principles, ry construction premi- contractor’s term intended the by paying are ums, contractors premis- encompass “general contractor” subcontractors, their premiums protections. the Act’s es owners within liberty not at to make. are policy choice we I dissent. Accordingly, respectfully notes, case has drawn As the Court opinion, our initial attention since
much I. weighed in. amici have and numerous presented, Sum- this case was first When Statutory Text A. The Entergy’s proof emphasis was on mers’ Act, “a 406.123 of the section Under agree- of a written regarding the existence and a subcontractor general contractor Legis- reliance on the and mistaken ment under agreement into a may enter written recodification lature’s 1993 nonsubstantive provides rehearing, more On of the Labor Code. *46 coverage compensation insurance workers’ statutory applicable the analysis of focused employees the of to the subcontractor and in Legislature, that the me text convinces the subcontractor.” Lab.Code 1989, did not intend to rewriting the Act 406.123(a). agreement § an If such definition change general-contractor filed, general properly reached and owners; contrary, to the premises include from the may premiums deduct contractor commonly terms it tied the definition to without amount owed the subcontractor has person to mean a understood 415.006 under section incurring penalties might an It well contracted with owner. employees. The coverage IMC agreement pro- pensation Interestingly, Entergy’s swept ar- coverage employees availability type no of contractual vide for IMC’s of this com- employees into the workers' coupled additional with contractual indem- rangement, pensation system case. Before it was in this may explain the dearth of nity provisions, amended, Entergy and the contract between 406.123(a). arising under section case law provide workers’ com- required IMC IMC to 483 Act, against fense prohibits employers of subcontractors and their em- at ployees no additional cost to itself. or from collecting premiums benefits 406.123(d), (f). § employees.2 Id. their statute, a construing overarching our importantly, agreement purpose More makes is to determine and effectuate the Legislature’s Shumake, intent. v. State statutory em- contractor 3 (Tex.2006) 199 S.W.3d 284 (citing City ployer of the and the sub- subcontractor San Boerne, Antonio v. City 111 from tort employees, contractor’s shielded of of (Tex.2003)). S.W.3d The surest liability by exclusive-remedy pro- the Act’s guide is, course, to that intent of the plain 408.001(a). 406.123(e), §§ Id. vision. and common meaning of the language the Act defines a contractor as employed. City has Hous person a procure who undertakes Clark, (Tex. ton v. 197 S.W.3d service, work or a performance of either 2006) Ramirez, (citing McIntyre v. separately through or the use of subcon- (Tex.2003)). S.W.3d Treating “principal tractors. The term includes premises provide owners who contractor,” “original contractor,” compensation coverage to subcontractors contractor,” “prime analogous employees or other and their as contrac tors” is inconsistent with the common term. The term does not include a mo- meaning associated with the terms provides earner transporta- tor that which the definition is tied. through tion service use of owner operator. Throughout Texas and com- law, mon generally contractor is under- 406.121(1). subcontractor, § turn, A Id. person stood be a that entity enters person “a a general who contracts with into a contract with compensa- another for perform contractor to all or part tion. In interpreting the Act and its pre- that the work services contrac- decessors, we have for decades defined a “ has perform.” tor undertaken to Id. ‘any who, 406.121(5). analysis A close of these business, pursuit independent of an under- definitions, particularly light viewed specific takes to do piece work for controlling statutory princi- construction persons other ....’“ Indus. Indem. Exch. ples, compels conclusion the Leg- that Southard, 138 Tex.
islature did not intend to (1942) allow (quoting Shannon v. W. Indem. general-contractor Co., (Tex. to assume status 257 S.W. App. Comm’n added).4 exclusive-remedy assert judgm’t adopted)) the Act’s de- (emphasis Entergy "paid 2. The Court purposes compensa- insists for” of the workers’ covering workers' insurance tion laws state.” Tex. Lab.Code employees. 282 at 482. IMC’s It 406.123(e). technically Entergy directly be true that premiums, paid the insurance is undis- 4.Both Court Justice Willett recite the puted Entergy procured the insurance in principle apply ordinary we do not *47 exchange for a reduction in the cost of its meaning Legislature of a term if the has Thus, construct, contract. under the Court's definition, adopted specialized prompt- a then Entergy bought immunity suit at no ly by looking ordinary cast it aside the additional cost to itself. meaning Legislature of words the the used "general within the contractor” definition. term, 3. The Act use that but I does not use it course, necessary, Act, This is of because can- ease of reference. Under "[a]n the not determine whether a owner is agreement [section under makes the 406.123] "analogous" types of contractor the sub- contractors listed 406.121(1) employees contractor and in the subcontractor’s section or what "undertakes to entity into a contract in one enters us Shan- which issue before precise While then for another and retains seeking perform work party a was whether non independent or contractors independent an subcontractors benefits was See, e.g., part all or of the work. employee, we to do opposed to an as contractor Prop.Code (13) (“ i.e., 53.001(7), ‘Origi- § that a Tex. principle, a broader articulated person contracting a work nal contractor’ means performs is someone who contractor through directly or an owner either Legislature has with else. Our for someone “ understanding. agent,” and ‘[subcontractor’ echoed that the owner’s repeatedly Prop.Code 28.001(1) § labor or See, person a who has furnished e.g., means Tex. (“ origi- con- to an person obligation to fulfill an means materials ‘Contractor’ Prop. owner....”); an or to a subcontractor tracts with nal Tex. 53.001(7) (“ contractor’ ‘Original required § part all or of the work perform Code an contracting contract.”); own- original with Interstate Con- means an 274.022(d) er....”); Dallas, § tracting Corp. City Tex. Elec.Code (“ newspaper (Tex.2004) means a or (using ‘[Contractor’ 611-12 which the secre- association with interchangeably statewide “prime term contractor” under sec- tary of state contracts discussing in “general contractor” with 51.776(3) tion.”); claims); Page v. Structural Tex. Educ.Code pass-through (“ of a con- in the context Inc., ‘[C]ontractor’ Components, Wood construction, rehabilitation, tract for (Tex.2003) “general (using the term 721-22 alteration, facility means ... repair of a “original interchangeably contractor” with entity the risk for legal that assumes [a] chapter in 53 of interpreting contractor” altering, or re- constructing, rehabilitating, Code);5 Op. also Property see facility at the part all or pairing (1994) (ruling that Att’y Gen. No. DM-300 price.”); Tex. Gov’t Code contracted university independent that contrac- hired 2166.2511(2) (“ in the con- ‘Contractor’ carpet as instal- provide tors to work such means a ... project a contract for a text of not act as a repair lation and window did that the risk for con- legal entity assumes “hiring contractor” under section 406.141 rehabilitating, altering, or re- structing, “not act even as a of the Act because it did at part project pairing all commonly un- as that term is ‘contractor’ price.”). contracted derstood,” on section relying part definition). 406.121(l)’s general-contractor Legislature language The illustrative categories acknowledge I While Compensation included Workers’ of section listed the second sentence is con- Act’s contractor” definition 406.121(l)’s “general contractor” definition general understanding: sistent exhaustive, contractor,” are not did “principal “original contrac- analogous clear that entities are tor,” are all terms make “prime contractor” contractors. See relationship in to be treated tripartite envision being examining before further classified as procure" how a contractor means without contractor, subcontractor, commonly independent those terms are understood. Moreover, several of or a contractor. significance attaching to a 5. While some Legisla- examples that the these define terms cases, inapposite string Justice out-of-state analogous “gen- expressly has deemed ture weight gives examples no be- Willett these 406.121(1), in- eral contractor” section party’s cause some of them discuss a status "prime cluding "original contractor” "independent as a "contractor” or an contractor.” tractor,” "general rather contractor.” than *48 person entity or issue must first be But the at added). 406.121(1). words, In other (emphasis A Id. a premises § Tex. Lab.Code analogous.6 pay- contractor is someone who simply not receives owner performing for work for another. ment that the defi- insists The Court 406.121(1) precisely Section tracks these tacitly it ac- nition controls over what by describing general contrac- definitions commonly understood the knowledges is procure tor as one who “undertakes to the “general contractor.” of the term meaning service, of work or a either performance mandated itself has Legislature But the separately through or the use of subcon- ... phrases shall be that “[w]ords 406.121(1). § In tractors.” Tex. Lab.Code ... common us- according to construed light longstanding commonly of this under- phrases age,” and that “[w]ords usage, Legislature easily stood the could or particular a technical acquired have in- have defined contractor” to by legislative definition meaning, whether if in- premises clude that was its owners otherwise, according- shall be construed tent, Legislature it did not. Had the but (b). 311.011(a), ly.” Tex. Gov’t Code conceptually term to be as intended the instance, usage, common the common broad as the Court and Justice Hecht to- law, pronounce- of legislative and a host is, day say simply it it could have written meaning contrary are ments “a and a subscriber subcontractor impor- More attaches to the term. Court agreement,” enter into an again, statutory language itself com- tantly, the it did not. to, with, and is tied ports meaning. of the term’s understanding similarly attaches a strained Court enacted section
When the meaning “separately” to the term within 406.121, a contractor long had defined (“ general-contractor definition. ‘Gen- “ specific ‘undertakes to do a as one who un- person eral contractor’ means ....’” persons other piece of work for procure performance dertakes to Southard, (quoting at 907 service, separately or a either work Shannon, (emphasis at add- 257 S.W. subcontractors.”) Id. through the use of ed)). Dictionary, Black’s at the And Law is, says premises That that a Court general- Legislature adopted time the engages “separately” acts when definition, similarly defined a contractor than directly rather subcontractors who, in the pursuit as “a contractor. 282 through business, any independent undertakes far likelier al- “separately” at 441. But per- specific piece of work other do for ” contractors, independent op- ludes to Dictionary sons .... Blace’s Law subcontractors, terms posed to (5th ed.1979). It also stated that “[t]his differently in the same Legislature defined strictly applicable any person term is lan- “separately” bill that introduced the contract, into a but is common- who enters Act of Dec. guage. See 71st who, designate one ly reserved 3.05,1989 S., 1, § Tex. Gen. Leg., 2d ch. C. procure ... pyice undertakes fixed (codified at Laws ... performance works or services Lab.Code 406.121(2)). public company or a or individual.” then, was the last of the ten commonly be- Even the defense understood difference raised, contributory contractors and own- Entergy tween after defenses why Entergy raise may explain failed to ers damages, mitigate negligence, failure to nearly statutory-employer defense until several others. initially filed. years after the suit was two *49 intent, Legislature’s the it Statutory Revision that had been B. The would not have substituted “undertaken to al- Legislature the used Significantly, perform” language long that had rec- been procure” lan- “undertake most identical general-contractor in the ognized definition of the prior in the version statute guage imposing third-party obligation. as statutory-employer conferring status when language in Legislature’s use same provided contractors who work- prime general-contractor the old and new defini- coverage to their sub- compensation ers’ strongly tions indicates it intended the 28, May contractors. Act of 68th in meaning same each version. S., 950, § R. ch. 1983 Tex. Gen. Leg., third-party Reliance on omission of the 5210, 5210, amended Act of Dec. Laws language subcontractor definition is C.S., ch. Leg., 2d 71st misplaced yet another It reason. 3.05(a)(5), 1989 Tex. Gen. Laws Legislature presumed true that the equated the term prior statute laws, knowledge existing act with Acker “general contrac- “prime contractor” with Comm’n, v. Tex. Water tor,” person mean and defined it to “the (Tex.1990), in deletions exist- procure per- undertaken to the who has ing presumed laws are to be intentional. formance of or services.” Id. The work Ament, (Tex.1994). In re in the same definition of “subcontractor” 321-page But the language no doubt that the legislation left merely bill enacted in 1989 did not amend commonly the embraced understood laws, prior massively overhauled en- a contractor as one has meaning of who tire workers’ scheme. agreed perform another to work portions amending While the bill exchange compensation. in services Code, Code, Insurance the Government per- defined as a “[S]ub-contractor” and other measures related to workers’ perform contracted to all or son who has compensation indicated deletions with that “a part prime of work or services strikeouts, through bracketed articles 1 with another contractor has contracted comprising of the bill the Workers’ Com- added). party perform.” (emphasis Id. pensation Act itself contained no such indi- Despite clarity language, of that cations of omissions. See Tex. S.B. art. conclude that the Court and Justice Hecht (codified (1989) 1-11, Leg., 71st 2d C.S. as general-contractor definition could be CODE, amended at TEX. LAB. Title encompass premises read to owners who A); Subtitle Legislative see also Tex. persons have not contracted with other (2008), Drafting Council Manual 35-36 perform they Apparently, work. believe available at http://www.tlc.state.tx.us/lega]/ language gen- third-party within Thus, dm/draftingmanual.pdf. omission of eral-contractor definition itself would dem- third-party language from the subcon- onstrate intent to exclude tractor definition does not merit premises owners. weight the Court Justice Willett afford Willett, Justice to some Court it. “contracting] Because with another extent, Legislature’s make much of the party” in is inherent the nature of third-party terms, omission 1989 of the lan- analogous contractors and and be- guage, concluding concept cause the had been subsumed “ meant ‘upstream to abolish the contract’ “prime the definition of contractor” and condition.” It is hard to fathom that such contractor” “the sweeping change procure and deliberate has undertaken to the perform- services,” subtly if third-party law would be so effected. But ance of work *50 impact of their light potential public definition the subcontractor language safety highly regulated included in the new and their likely not status. was most Elmer, definitions. Speed Leasing, Act to conform two See Boat Inc. v. (Tex.2003); S. States Legisla- effect to the Giving virtually no State, Transp., Inc. v. 774 S.W.2d to “general contractor” ture’s restriction (Tex.1989) (Gonzalez, J., dissenting). One contractor,” analogous “principal to terms argue could that motor are analo- carriers contractor,” contrac- “prime “original contractors, gous they to in that tor,” Willett attach and Justice Court frequently parties contract with third to exclud- significance to the sentence great provide transportation services and then provide transporta- that ing motor carriers owner-operators subcontract with to actu- the use of owner- through tion services Thus, ally perform those services. But that exclusion is operators. when likely Legislature expressly excluded mo- the entire statuto- in the context of viewed general-contractor tor carriers from the applicable and other law ry scheme that, carriers, definition to make it clear even the reason for the exclu- motor though they might gener- otherwise fit the becomes clear: rewrite sion some, construct, Act, made they al-contractor are to be all, applicable of section 406.128 treated differently. not contractors motor carriers. Like subcontractors, motor carriers and Policy- C. Justice Hecht’s (which inde- owner-operators are deemed Interpretation Based under section pendent contractors Noting property may that a owner act 406.121(4)) may agreement enter into an contractor, as its own but acknowl provides motor carrier under which the edging generally that the term is more coverage to an
workers’ understood to mean one who contracts employees. and its owner-operator property and then subcon 406.123(c). a general And like Lab.Code others, parts job of the Justice tracts contractor, provides a motor carrier that just can’t tell Hecht concludes we coverage to its in- statutory language Leg from the what the pre- dependent may deduct elusive, Finding meant. the text islature price in- mium from the contract without “policies Justice Hecht discerns embedded 415.006 of curring penalties under section tip in the Act” which he believes the scales 406.128(d). gen- But unlike the Act. Id. treating in favor of owner as a contractors, pro- eral a motor carrier There are several general contractor. coverage independent-contrac- to its vides First, problems approach. with this while owner-operator does not become the tor of a contractor” as definition statutory employer owner-operator of the per procure one who “undertakes owner-operator’s employees or the —there inmay appear formance of isolation work” to section provision equivalent is no the definition’s second sen open-ended, 406.123(d) that to motor carriers. applies commonly under tence ties the term to its treatment of motor carriers differing This Second, 5.001(a)(2) if indeed the text meaning. stood is consistent with section claims, ambiguous as Justice Hecht Code, Transportation which restricts deroga clearly have said statutes to limit their ability of common carriers be rights tion of common law “ should not liability. law It also be at- common clearly ‘applied [their] to cases within heightened to the standard tributable ” Energy Serv. Bow purview.’ common carriers in See Co. imposed upon care Servs., Inc., ie, Snubbing designate employee cannot its Superior v. Inc. (Tex.2007) in order paying subcontractor avoid (quot 194 n. 17 236 S.W.3d benefits under the Act. No one claims that Satterfield, Satterfield, ing *51 to by Entergy IMC was hired as sham (Tex.1969)). third, “poli And own paying employees avoid its workers per Hecht identifies and that Justice cies” benefits; provision if would be thwarted own ceives simply analysis gener- irrelevant to of the as contractors are not treated ers al-contractor definition. applied been this context have never exclusively that beg question with my next that charges Justice Hecht realm, not ours. Legislature’s reading “per- of the statute would have in- verse” results because the contractual that Justice Hecht policy The first be- demnity allowed under section 417.004 and into the sweeps premises lieves owners provided Entergy’s for in contract with is the Act’s general-contractor definition permit IMC would Summers to recover coverage. Wingfoot “decided bias” for See damages Entergy, common law from which Enters, Alvarado, Entergy recoup could in turn from IMC. (Tex.2003). But the is in Act’s bias favor suggests Justice Hecht that in such a sce- employers electing provide coverage nario, compensation system “the workers’ employees; their we have never read a for provides nothing any employer.” Of into the Act that would confer its bias Act, pre-1989 according course the at least protections parties on third absent clear (and my reading litigants, that of the statutory indicia of an authorization Willett), amici and Justice had the same employer/employee relationship. effect, policy Legisla- is a choice the which employers that general policy Act’s favors question ture made. The is whether in covering employees expand cannot the cat- Legislature change 1989 the intended to considered egory persons addition, policy. In several factors definition; beyond statutory tractors” One, point. undermine Justice Hecht’s invoking policy particularly here is Entergy paid premiums while IMC’s unwarranted when could benefits owner-provid- Summers’ under its easily so have defined the term expan- as (OPIP), plan ed insurance that cost was sively and Justice Court Hecht do price deducted from the contract paid today. IMC, effectively so Entergy paid nothing policy The second Justice Hecht cites is protection additional Justice provision. sham-subcontractor See reading Entergy. Hecht’s afford would If prohib- 406.124. the Act Lab.Code Two, significant owners economic receive utilizing its subscribers from subcontrac- Entergy’s apart from benefits OPIPs like coverage, posits, surely tors avoid he it immunity. from tort OPIPs allow owners discourage coverage by denying would not coverage to secure for all their contractors exclusive-remedy subscribers the defense. at price a lower overall than the cost of But provision the sham-contractor was insurance that sub- impute coverage never intended to to true normally incorporate contractors would parties third as Justice Hecht seems to prices, into their contract thereby lowering imply; simply prohibits it a person LLP, Howrey owners’ costs. overall Own- compensation coverage has workers’ from er Programs Controlled Insurance (OCIPs): subcontracting the work with the intent Like Why Owners Them and Not, purpose avoiding liability Why May as an Contractors ConstRuction id,. words, employer. July http://www. In other See Weblinks, pensation system’s merits, constructionwebli relative nks.com/Resources/In- _14_ dustry -Reports _Newsletters/July decide, is not ours to it operated has turn, 2003/ocip.htm. pre- cost way at least until statutory revision in price mium deducted IMC’s contract 1989; there is nothing to indicate the Leg- likely premium lower than the IMC islature’s revision was intended to effect a paid. Consequently, would have otherwise change. Entergy
both and IMC benefitted from arrangement the insurance this instance Statutory D. Construction Principles Three, irrespective immunity. of tort I As read the language, indemnity agreements like that between *52 Legislature seems clear that the did not are in Entergy widespread and IMC intend to transform owners who industry is some indication that premises contract for third-party into gen services perceive do not statutory- owners Act’s eral contractors entitled to assert the Act’s employer provision protect them from exclusive-remedy defense. But if even the claims, common law else there would be no language clear, were less than well-estab agreements. four, need for such And any lished statutory construction principles damages might tort that Summers recover lead to the same conclusion. In a decision likely paid would be from the commercial issued week before the original Court’s liability policy Entergy that re- opinion case, in this we considered wheth quired IMC to obtain as a condition under er an agreement indemnification between a contract, parties’ and the workers’ subscribing employer and another party compensation carrier would be subrogated could be party’s enforced that contrac recovery to Summers’ under section tor though even the contractor had not “perverse 417.001 of the Act. The result” agreement. executed the Superior that Snub simply Justice Hecht envisions does bing, 236 not S.W.3d 190. The exist. statute had formerly required only that an agree such policy The fourth reason Justice Hecht “ ” ment be ‘executed the subscriber’ cites is that the Act was intended to be enforceable, Legislature be but in 1989 the comprehensive. again, But it can be changed the statutory language require comprehensive to the extent that the Leg- “ agreement ... written ‘executed with- intended, islature and there nothing ” party.’ the third (quoting Id. at 191 the 1989 that revision would indicate the 417.004). Although the revi Lab.Code Legislature’s suddenly changed. intent appeared require signature sion Underlying analysis Justice Hecht’s parties, both Legis we concluded that the apparent assumption might that Summers change lature intended no in the law and against Entergy recover a on windfall his that the nonsignatory contractor could if Entergy common law claims. But is not seek indemnification as an intended benefi Act, Summers’ under the it re- ciary agreement. of the Id. at panoply tains the full of defenses available concluding that law, intended to it under the common and Summers law, change despite no substantive in the establishing shoulders the burden of change company’s negligence language, statute’s we consequent with the largely relied two construc litigation. uncertainties of Should Sum- First, prevail claims, principles. mers on his common tion we noted that the law certain, which is far from he common law allows the intended beneficia would forfeit it, any ry benefits that he has of a contract that received under enforce Irrespective the Act. com- in derogation statutes of common law “ 17; Kroger Keng, n. beyond see also Co. not be extended rights ‘will (“[I]t (Tex.2000) would be meaning applied to cases plain [their] “ in a purview.’ Id. at to construe the statute clearly injudicious [their] within re- Satterfield, supplies by implication 448 S.W.2d (quoting n. 17 manner 459). Second, that are applied Legisla employee’s rights on an at strictions a stat lan- interpreting plain 406.033’s ture’s directive not found section “ at all times the ute, must ‘consider v. Indus. Accident guage.”) (citing courts Miears ” evil, remedy.’ Id. law, Bd., and the old 149 Tex. 312.005). Be (1950)). (quoting Tex. Gov’t Code identify moti practical could no cause we that it has man- perceive The Court change, extra-textual vation for inconsistency between its aged to blur amend Legislature’s indication Snubbing by today Superior decision be was intended to ment of the statute that the law has remained un- proclaiming substantive, the third- we concluded that at 490. changed since 1917. 282 S.W.3d indemnity. beneficiary could seek party analysis shows how hollow that But its own Id. at 195. acknowledges is. The statement Court *53 application principles of those same intro- entirely provision new Legisla- that the in this case demonstrates in amended in 1989. duced and then expand ture not intend to the class of did significance attaches some And the Court statutory-em- to claim contractors entitled anoth- phrase to the omission of the “with premises to include owners ployer status definition party” er from the subcontractor Nothing the Act in 1989.
when it rewrote
Superior
473. In
in 1989. 282
at
S.W.3d
history suggests
legislative
in the Act’s
concluded that
Snubbing,
Court
perceived an “evil” in
Legislature
that the
phrase
of a
failed
Legislature’s insertion
per-
that a
then-existing requirement
change
legislative
to demonstrate
intent
perform
contracted to
ser-
son must have
showing
specific
absent a
of
law
prime
or
vices for another to be a
Here,
similarly
the record is
motivation.
Select Committee on
contractor. See Joint
of
in need
any showing
of
an “evil”
devoid
Insurance, A Re-
Compensation
Workers’
concludes that
remedy, yet
of
the Court
(1988); Tex.
port
to the 71st
party”
of the “with another
omission
Garcia,
v.
Comp.
Workers’
Comm’n
sweeping change
language effected
(Tex.1995)
(discussing
512-13
the law.
the statute’s
report). And to the extent
be-
recognizes
Justice Hecht
the tension
language
plainly
does not
entitle
today’s
Superior
decision and
Snub-
statutory-employer
sta-
tween
owners
assume
circumstances,
“it
Superior
bing, but brushes
aside because
has
tus under these
clear when a
is consid-
against
counsels
that construc-
never been
Snubbing
a subcon-
tion,
derogation
of Sum-
ered the
of
as it would be
employees....”7
his
He reaches
rights. 236 S.W.3d at
tractor or
mers’ common law
Roofing,
Group,
provision, now codi
All-Tex
Inc. v. Greenwood Ins.
7. The sham contractor
Inc.,
Code,
(Tex.App.-Houston
406.123,
specifically
would have
allowed the Legislature did not intend to include
premises
statutory-em-
owners to secure
premises owners
general-
within the Act’s
status,
ployer
but that version of the bill
contractor definition.
already
As
ex-
rejected in
entirety by
its
the Senate.
plained, a premises owner
per-
who is not
Tex.,
See
Leg.,
H.J.
71st
1st C.S. 76 forming work for another does not share
(1989).
any event,
In
I agree with Justice
general contractor,
characteristics of a
Willett that
legislation
failed
is an unsound
principal contractor,
original
an
contrac-
guide
intent.
tor, or
prime
contractor. See also U.S.
premises
Goudeau,
Court’s conclusion that
Fid. &
v.
Guar. Co.
(Tex.2008) (“Under
general-
owners are subsumed within the
the traditional
(‘a
contractor definition is also inconsistent
canon of construction noscitur a sociis
another statutory
construction princi-
by
company
word
known
it keeps’),
(Tex.Civ.
Harper,
dism’d);
App.-Austin
Ass'n v.
side with might be limited workers’ benefits, employed by another while able to be
independent contractor would under the range damages seek the full First, such an to the extent common law. reading of the anomaly my under exists statute, policy choices it is the result long pre- made Moreover, in the 1989 revision. existed is somehow unfair implying that the result injured employee, to the owner’s Act option the Court overlooks subscribing employ- employees of provides be ers to elect not to covered § 406.034. compensation. Tex. Lab.Code being quid pro quo, It also overlooks of uncertain common relinquishment prompt recovery exchange law benefits, that has insu- of defined receipt challenge Act from constitutional *55 lated the Open provision Courts under Garcia, at Texas Constitution. II. Legis- I that the Because do not believe change in the 1989 Act intended lature prior statutory-employers and confer law owners, respectfully I
status on dissent.