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Affirmed and Majority, Concurring, and Dissenting Opinions filed January 31, 2007.


In The


Fourteenth Court of Appeals



NO. 14-04-00183-CV









On Appeal from 281st District Court

Harris County, Texas

Trial Court Cause No. 02‑14362



D I S S E N T I N G   O P I N I O N


As the majority opinion correctly recognizes, the JNOV on G & H=s exclusive remedy (affirmative) defense can properly be affirmed only if the evidence conclusively established, among other things, that Mosqueda was a borrowed employee of G & H.[1]  AEvidence is conclusive only if reasonable people could not differ in their conclusions, a matter that depends on the facts of each case.@  City of Keller v. Wilson, 168 S.W.3d 802, 815-16 (Tex. 2005) (emphasis added).  We review the evidence in the light most favorable to the verdict and indulge every reasonable inference that would support itId. at 822.

Because neither party in this case assigned error to the definition of Aborrowed employee@ submitted in the jury charge, the sufficiency of the evidence is measured against that definition.[2]  The issue of whether G & H had the right to direct and control the details of the particular work in question was a fact issue to be determined by the jury from the evidence submitted at trial,[3] not a legal question to be decided by this court.  The only legal question is whether there was any evidence supporting the jury=s finding that G & H did not have that right, such that the JNOV was improper.  Therefore, the JNOV cannot be affirmed if the evidence would allow reasonable people to differ on whether G & H had Athe right to direct and control the details of the particular work in question.@

To establish that it had the requisite right of control for this purpose, G & H=s motion for JNOV relied principally on the AConditions of Service@ printed on a Pacesetter time ticket (the Atime ticket@), stating that G & H was the Aworksite employer with authority to direct the work to be done@ (the Aright of control provision@).  A contract between two employers providing that one shall have the right to control certain employees is a factor to be considered, but is not controlling, in determining whether the employee of one employer had become the borrowed employee of another employer.  Exxon Corp. v. Perez, 842 S.W.2d 629, 630 (Tex. 1992).  Although a contractual assignment of the right of control can sometimes be dispositive of whether a regular employee of one party is a borrowed employee of another, Ait is not dispositive when there is conflicting evidence as to which entity had the right to control the details of the work in question.@  St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 544 n.92 (Tex. 2002) (plurality opinion) (emphasis added).  In such circumstances, the issue is left to the jury.  Id.  In addition, Areviewing courts must construe contracts as a whole; we do not consider only the parts favoring one party and disregard the remainder, as that would render the latter meaningless.@  City of Keller, 168 S.W.3d at 811.

In this case, as in Garza, the injured worker was working at the premises of a client company in furtherance of its day-to-day business, and the details of the work that caused the injury were specifically directed by the client company.   However, unlike in Garza, this case involved a trial rather than a summary judgment, and G & H introduced into evidence and relied upon the time ticket, which also contained the following condition of service:

8.         Customer agrees that it will not permit or assign the Services employees to perform any work which would expose them to any unreasonably dangerous working conditions.

(Aparagraph 8").  The evidence in this case was controverted as to whether G & H had manifested its assent to the conditions of service on the back of the time ticket, and thus failed to conclusively prove that the right of control provision even governed the rights and obligations of the parties.[4]  However, even if the conditions of service did apply, providing that G & H had general authority to direct the work to be done, paragraph 8 also applied, supporting at least a reasonable inference, which we must indulge, that G & H had no right to assign Mosqueda to perform any work that could expose her to any unreasonably dangerous working conditions.  Because G & H neither objected to, nor requested a limiting instruction for, this evidence, it was admitted for all purposes and could be so considered by the jury.[5]

The evidence further reflects that Pacesetter had sent Mosqueda to G & H to assemble doorknob lock sets.  However, Mosqueda=s supervisor there, Felix Gonzales, asked her to also work on several other machines, including the multislide machine on which she severed her thumb.  Mosqueda=s expert witness, Arthur Walton, a professional engineer, testified that: (1) the multislide machine on which Mosqueda was injured did not have a guard over the moving parts, as required by OSHA; (2) without such a guard, there was Aan extreme degree of risk of someone getting hurt@ by the multislide, particularly in that there was no warning on the machine to alert someone of this danger; and (3) not having a guard on the machine was one of the causes of Mosqueda=s accident.

In the context of the jury charge submitted, the foregoing evidence would allow reasonable people to at least differ whether: (1) working on the multislide machine under these circumstances exposed Mosqueda to unreasonably dangerous working conditions; and (2) paragraph 8 provided that G & H did not even have the right to assign, let alone direct and control the details of, any such work, as specified in the charge definition of borrowed employee, even if G & H actually exercised that right.  If the jury charge did not correctly state the law, did not correctly apply to the facts of this case, or did not mean what it plainly states, G & H should have requested whatever language was necessary to enable the jury to render a proper verdict.  Lacking any such modification, it negates the role of the jury (and thereby denies the right to a jury trial) for a court, after the fact, to construe the charge as having a more narrow meaning than that of the words used in it, or to ignore evidence that is probative of the issues actually submitted in order to defeat the existence of a fact issue.

Because the charge submitted to the jury and the evidence presented at trial authorized the jury to render a verdict that Mosqueda was not a borrowed employee, G & H was not entitled to a JNOV on that issue.  Therefore, I would reverse the JNOV and render judgment in accordance with the jury=s verdict.




/s/        Richard H. Edelman



Judgment rendered and Majority and Concurring and Dissenting Opinions filed January 31, 2007.

Panel consists of Justices Edelman, Frost, and Seymore. (Seymore, J., majority and concurring opinions).

[1]           See Juliette Fowler Homes, Inc. v. Welch Assocs., Inc., 793 S.W.2d 660, 669 n.9 (Tex. 1990).

[2]           Romero v. KPH Consolidation  Inc., 166 S.W.3d 212, 221 (Tex. 2005); St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 530 (Tex. 2003).

[3]           See Comm. On Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges -General Negligence & Intentional Personal Torts PJC 7.2; PJC 7.5 (2003).

[4]           Because the case was not tried on a breach of contract theory, no questions were submitted concerning the existence of a written contract.

[5]              See Tex. Health Enters., Inc. v. Tex. Dep=t of Human Servs., 949 S.W.2d 313, 314 (Tex. 1997); Aluminum Co. of Am. v. Alm, 785 S.W.2d 137, 139 (Tex. 1990).