OPINION
This is аn appeal from a take-nothing summary judgment granted in favor of Martin Landscape Management, Inc. (MLM) and Tommy Fleeman, appellees, and against Lucio Rodriguez, appellant, based on MLM’s statutory immunity under the Texas Workers Compensаtion Act. 1 In a sole point of error, Rodriguez contends there were unresolved fact issues about his employment status concerning (1) whether MLM was a worker’s compensation subscriber at the time of the accident, and (2) whether he had reсeived notice that MLM was a worker’s compensation subscriber. We affirm.
Facts and Procedural History
Rodriguez worked for Staftex, Inc., an employment services company, and was assigned to a job with MLM. While on that job, he was injured in a vehicle accident on a Houstоn freeway on June 4, 1991. Rodriguez was riding in the bed of a pick-up truck pulling a trailer and driven by coworker Fleeman. 2 Rodriguez alleged that Fleeman lost control of the vehicle and that the truck and trailer hit the guard rail twice, injuring Rodriguez’s lower back. 3 Rоdriguez received workers compensation benefits from Staftex.
Rodriguez later filed this common-law negligence claim against both MLM and Flee-man. In their motion for summary judgment, MLM and Fleeman asserted that the claim was barred by the “borrowed servаnt” doctrine. MLM and Fleeman contended that Rodriguez was MLM’s borrowed servant under the contract with Staftex, and that the compensation benefits Rodriguez had already received discharged MLM from liability to Rodriguez. Therefore, MLM and Fleeman concluded that they were entitled to statutory immunity under the Texas Worker’s Compensation Act.
See, e.g., Sparger v. Worley Hosp., Inc.,
In his response, Rodriguez attached a counter-affidavit to controvert MLM’s proof, in which he asserted the following:
My initial contract was with Stafftex [sic], Inc. In turn, Stafftex [sic], Inc. contracted with MARTIN LANDSCAPE MANAGEMENT, INC.
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I began to receive workers compensation benefits through Stafftex [sic] [,] Inc.’s carrier, Houston General Insurance Company. My medical bills were paid by Stafftex [sic], Inc. through their carrier, Houston General Insurance Company.
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I never received benefits from MARTIN LANDSCAPE MANAGEMENT, INC. via a policy of Texas Wоrkers Compensation *604 insurance purchased by MARTIN LANDSCAPE MANAGEMENT, INC.. I never received notice from MARTIN LANDSCAPE MANAGEMENT INC. that I was covered by any Workers Compensation insurance policy. I never received written notice from MARTIN LANDSCAPE MANAGEMENT, INC., nor was notice posted at the job sitе, that I was covered by any Workers Compensation insurance policy of MARTIN LANDSCAPE MANAGEMENT, INC.
Rodriguez contends that his controverting affidavit raised material fact issues about whether he worked for MLM or Staftex and whether his workers compensation benefits wеre from MLM or from Staftex. He also complains that, if MLM was in fact a workers compensation subscriber, he received no notice to that effect.
Standard of Review
Summary judgment is proper only when the movant shows that there is no genuine issue of material fact and has proven its entitlement to judgment as a matter of law.
Nixon v. Mr. Property Mgmt. Co.,
Rodriguez was a Borrowed Servant
The borrowed servant doctrine applies in situations where an employee of one employer, the general employer, works temporarily for another employer, the special emрloyer. The doctrine makes the special employer the “employer” during the temporary term of employment.
The contract between Staftex and MLM expressly granted to MLM the right to control Rodriguez, and thereby established that the borrowed servant doctrine applied to Rodriguez as a matter of law.
Producers Chem. Co. v. McKay,
A comparable situation arose in
Marshall v. Toys-R-Us Nytex, Inc.,
Marshall challenged the summary judgment on the following grounds: (1) there was a fact issue about whether she was an employee of Toys-R-Us or of Labor Systems at the time of the accident; (2) Toys-R-Us failed to prove that it was a workers comрensation subscriber; and (3) she had no notice that Toys-R-Us was a workers compensation subscriber. 4 Id. Marshall failed to controvert the summary judgment evidence showing that she received her on-site instructions exclusively from Toys-R-Us, and that Labor Systems in no way controlled or directed her performance. The court concluded that Toys-R-Us had the right of control over Marshall at the time of the accident, and that the borrowed servant doctrine applied. Id. at 195-197.
Finally, the Marshall court held that when Labor Systеms gave the statutorily-required notice of the claim to the Industrial Accident Board, this was constructive notice to Marshall that Toys-R-Us was a worker’s compensation subscriber. The court overruled *605 all of Marshall’s contentions and affirmed the summary judgment.
MLM was an “Employer” for purposes of the Workers Compensation Act
Rodriguez contends that MLM did not prove that it was an “employer” under the Worker’s Compensation Act as it read at the time of the injury. He concedes, however, thаt he had received worker’s compensation benefits through Staftex. Martin’s affidavit claims that MLM was a worker’s compensation subscriber at the time of Rodriguez’s accident. The contract provides that MLM will pay fees to Staftex to cover worker’s compensation premiums for assigned employees, such as Rodriguez. The relevant provision states:
Service Fee. The Service Fee charged to SUBSCRIBER and payable at the end of each pay period will be equal to gross employee earnings multiplied by the service fee percentage shown on Exhibit A, plus charges for worker’s compensation insimnce and employee benefit programs.
(Emphasis added.) 5
The “Exhibit A” to which this provision refers is the fee schedule, showing that MLM paid Staftex “actual” costs for worker’s compensation insurance premiums. This was attached tо the contract and included in the summary judgment evidence. This summary judgment evidence shows that MLM was a worker’s compensation subscriber at the time of Rodriguez’s accident. As such, it is protected by statute from common-law liability.
Sparger,
Rodriguez points to a change in the Workers Compensation Act, deleting the term “subscriber” from the newer version, and expanding the definition of the term “employer.” The earlier version read:
“Employer” shall mean any person, firm, partnership, association of рersons or corporations or their legal representatives that makes contracts of hire.
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“Association” shall mean [an] ... insurance company authorized under this Act to insure the payment of compensation to injured emplоyees or to the beneficiaries of deceased employees.
“Subscriber ” shall mean any employer who has become a member of the association by paying the required premium....
Tex.Rev.Civ.Stat. Ann. art. 8309 (Vernon 1967), (emphasis added). 6
At the time Rodriguez’s injury occurred, the corresponding section of the Act read:
(19) “Employer” means, unless otherwise specified, a person that makes a contract of hire, that employs one or more employees, and that has workers’ compensation insurance coverage. The term includes a governmental entity that self-insures, either individually or collectively.
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(48) “Workers’ compensation insurance coverage” means' an approved insurance policy to secure the payment of compensation, coverage to secure the payment of сompensation through self-insurance as provided by this Act, or coverage provided by a governmental entity to secure the payment of compensation.
Tex.Rev.Civ.Stat.Ann. art 8308-1.03 (emphasis added). 7
Rodriguez argues that the deletion of the term “subscriber” coupled with the exрanded definition of “employer” constitutes a substantive change. He contends that MLM failed to prove that it was an “employer” under the Act as it read at the time of the injury. We disagree. The deletion of the term “subscriber” is a distinction without a difference. The same substantive requirement is incorporated in the newer version’s *606 definition of “employer.” MLM satisfied this statutory requirement by paying to Staftex the actual cost of the workers’ compensation premiums for Rodriguez. MLM was, therefore, Rodriguez’s employer for purposes of the Workers Compensation Act.
Rodriguez had Notice that MLM had provided Workers Compensation Coverage
Rodriguez next argues that summary judgment was improper because there was a fact issue concerning whether he had notice that MLM had workers compensation coverage. He contends that he should be allowed to bring his common-law claim. He relies on
Brown Serv., Inc. v. Fairbrother,
The fact that Rodriguez received workers compensation benefits from Staftex proves as a matter of law that he had constructive notice,
prior to the injury,
that he was covered by a workers compensation insurance policy.
See Marshall,
Conclusion
This case is controlled by
Marshall.
The contract between Toys-R-Us and Labor Systems provided that the cost of the workers compensatiоn premiums, which Labor Systems paid to the carrier, was included in the fees paid by Toys-R-Us. The court held that this made Toys-R-Us a subscriber within the meaning of the Workers Compensation Act.
We overrule appellant’s sole point of error, and affirm the judgment of the trial court.
Notes
. Tex.Rev.Civ.Stat.Ann. art. 8308-4.01, Act of December 13, 1989, 71st Leg., 2nd C.S., ch. 1, § 4.01, 1989 Tex.Gen.Laws 1, 32, repealed by Act of September 1, 1993, 73rd Leg., R.S., ch. 269, § 1, 1993 Tex.Gen.Laws 987, 1132-32 (current version at TexLab.Cоde Ann. § 401.001-417.004 (Vernon Pamph.1994)).
. Like Rodriguez, Fleeman was an employee of Staftex, working for MLM.
. Specifically, according to the doctor's report on Rodriguez’s Magnetic Resonance Imaging (MRI), Rodriguez received three bulged discs at L2-L3, L4-L5 and L5-S1.
. Marshall also alleged that Toys-R-Us failed to plead statutory immunity in its answer. The appellate court correctly noted that pleading it in the motion for summary judgment was sufficient. Rodriguez did not assert this; otherwise, the challenges are identical.
.As we obsеrved in footnote 3, the term "subscriber” in this contract refers to MLM as a client of Staftex, not to MLM as a subscriber under the Worker's Compensation Act. This very paragraph of the contract, along with the attachment to which it refers, does, however, show that MLM is a subscriber under the Act.
. Repealed by Act of Dec. 13, 1989, 71st Leg., 2nd C.S., ch. 1, § 16.01(15), 1989 Tex.Gen.Laws 1, 114.
. Repealed by Act of September 1, 1993, 73rd Leg., R.S., ch. 269, § 1, 1993 Tex.Gen.Laws 987, 1132-32 (current version at Tex.Lab.Code Ann. § 401.011 (18), (44) (Vernon Pamph.1994)).