Martinez v. Melendez (Tex.App.- Houston [1st Dist.] Dec. 3, 2009)(Substitute opinion by Bland)
(wrongful death, collision with dump truck, independent contractor)(no
vacarious liability in absence of
employer-employee relationship with employer's right to control details of work)
Because the undisputed evidence shows, as a matter of law, that no employer-
employee relationship existed between Melendez and Delfino Bello the time of
this accident, and that Melendez had no right to control the details of Delfino’s
work, we hold that the trial court properly granted summary judgment dismissing
all of the Martinezes’ claims against Melendez.
AFFIRM TC JUDGMENT: Opinion by Justice Jane Bland  
Before Justices Taft, Bland and Sharp    
01-08-00850-CV        Luci Martinez, Individually and the Personal Representative of the Estate of Luis
Martinez; and Jose Martinez and Maria Martinez v. Moises Melendez    
Appeal from 190th District Court of Harris County
Trial Court Judge:
Hon. Patricia J. Kerrigan

MEMORANDUM OPINION ON REHEARING

We grant rehearing and withdraw our opinion and judgment of June 25, 2009, and issue the following
in their stead.  Our disposition of the case remains unchanged.

Luci Martinez, José Martinez, and Maria Martinez appeal the trial court’s summary judgment dismissing
their wrongful death negligence claims against Moíses Melendez, arising out of a traffic accident in
which a dump truck—driven by Delfino Bello and owned by his brother Salvador—struck Luis Martinez’
s car, causing his death.  Finding no error, we affirm.

Background

At the time of the accident, Delfino Bello was using his brother’s truck to haul dirt from a Hays
Construction excavation site to a dumping facility.  Appellee Melendez also worked at the Hays site,
hauling dirt in his own truck.  According to the summary judgment record, when Hays needed a dump
truck driver to haul dirt from a site, a representative contacted an independent truck driver, usually
one who has worked on previous projects for Hays, discussed the project and asked the driver to haul
loads and to refer other drivers.  That driver, in turn, contacts other drivers, each of whom uses his
own truck to haul loads of dirt.  Hays checks the drivers’ proof of insurance when they arrive at the
work site.  Hays also provides hauling permits for the drivers.

The referring driver does not supervise the other drivers he brings to the project, but instead collects
tickets from each driver at the end of the week documenting the number of hauls made by that driver.  
Then, he adds them, includes his own haul numbers, and provides the total to Hays.  Hays issues one
check to the referring driver, who then divides the money among the drivers according to the number
of hauls made by each.

In this instance, when Hays asked Melendez if he could refer other drivers to work on the excavation
project, Melendez contacted a driver he knew named Marcos Benitez.  Benitez, in turn, contacted
Salvador to inform him of the available job and of Melendez’s telephone number.

Salvador posted a “Bello Transportation” sign in his truck  He testified in his deposition that he
considered himself the “sole proprietor” of Bello Transportation, and explained that he registered
himself as owner of Bello Transportation with the state.  According to Salvador’s understanding, “to be
able to work you have to put the name of a company in your truck.”[1]  Salvador purchased the truck
individually, and his wife co-signed the note.

Salvador called Melendez, who described the Hays project.  Salvador reported to the Hays site with
Melendez and began hauling the dirt.  Melendez and Salvador each prepared trip tickets, which
Melendez submitted to Hays for payment.  After receiving the payment from Hays, Melendez wrote a
personal check, made payable to Salvador, individually, to give Salvador his share.

At the Hays’s excavation site, the truck drivers waited in a line for loading.  A Hays worker would fill the
truck, and the driver would take the load to the designated dumping location and, once they emptied
the load, returned to the Hays site for reloading.  Neither Hays nor Melendez controlled Salvador’s
route.

One week, after learning of the job from Salvador, Delfino reported to work at the Hays site.[2]  On the
third day of that work week, the Bello Transportation truck Delfino was driving collided with Luís
Martinez’s car in the intersection of a tollway feeder road.  Luís Martinez died from his injuries, and his
surviving family members brought suit, asserting claims against Hays Construction, Melendez, and
both of the Bello brothers.  The Martinezes allege that Melendez employed or supervised Bello
Transportation and thus that Melendez is vicariously liable for Delfino’s negligence.  In particular, they
allege that Melendez is liable for the negligent hiring, training, and supervision of Delfino.

Melendez moved for summary judgment on the claims against him, contending that he is not
vicariously liable for Delfino’s conduct as a matter of law because he did not have an employer-
employee relationship with Delfino, did not control the details of Delfino’s work, and did not meet the
statutory definition of “employer” set forth in the Federal Motor Carrier Safety Act and adopted in the
Texas Administrative Code.  The trial court granted Melendez’s motion, severed the remaining claims
from the lawsuit, and signed a final take-nothing judgment as to Melendez.  

Discussion

Summary judgment standard of review

We review a trial court’s summary judgment de novo.  Valence Operating Co. v. Dorsett, 164 S.W.3d
656, 661 (Tex. 2005); Provident Life Accid. & Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003).  
Under the traditional standard for summary judgment, the movant has the burden to show that no
genuine issue of material fact exists and that the trial court should grant a judgment as a matter of
law.  Tex. R. Civ. P 166a(c);  KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d
746, 748 (Tex. 1999).  When reviewing a summary judgment, we take as true all evidence favorable
to the nonmovant and indulge every reasonable inference and resolve any doubts in the nonmovant’s
favor.  Dorsett, 164 S.W.3d at 661; Knott, 128 S.W.3d at 215; Sci. Spectrum, Inc. v. Martinez, 941 S.
W.2d 910, 911 (Tex. 1997).

Traditional summary judgment is proper only if the movant establishes that here is no genuine issue
of material fact and that the movant is entitled to judgment as a matter of law.  Tex. R. Civ. P. 166a(c).
The motion must state the specific grounds relied upon for summary judgment.  Id.  A defendant
moving for traditional summary judgment must conclusively negate at least one essential element of
each of the plaintiff’s causes of action or conclusively establish each element of an affirmative
defense.  Sci. Spectrum, Inc., 941 S.W.2d at 911.

Employer status

   The Martinezes contend that the trial court erred in granting summary judgment on their claims
against Melendez because fact issues exist as to whether Melendez acted as Bello’s employer.  We
consider the merits of their contention under both the general right-to-control test and the statutory
definition of employer under the federal regulations promulgated under the Federal Motor Carrier
Safety Act.  49 C.F.R § 390.5 (2008).

  
 Right to control

Under Texas law, business owners have no duty to see that independent contractors use reasonable
care in performing their work unless they exercise control over the independent contractor’s activity.  
Dow Chem. Co. v. Bright, 89 S.W.3d 602, 606 (Tex. 2002); Redinger v. Living, Inc., 689 S.W.2d 415,
418 (Tex. 1985).  A plaintiff seeking to prove that the owner is liable for a negligent act must therefore
establish that (1) the owner had a contractual right of control or exercised actual control, in a way that
extends to the operative details of the contractor’s work, and (2) a nexus exists between the owner’s
retained control and the activity that caused the plaintiff’s injury.  Gen. Elec. Co. v. Moritz, 257 S.W.3d
211, 214 (Tex. 2008); Ellwood Tex. Forge Corp. v. Jones, 214 S.W.3d 693, 700 (Tex. App.—Houston
[14th Dist.] 2007, pet. denied) (citing Tex. Civ. Prac. & Rem. Code Ann. §§ 95.001—.004).

   Here, the undisputed evidence demonstrates that Melendez was  unaware that Delfino—not
Salvador—was driving the truck.  Melendez had no control over the operative details of Delfino’s
work.  Delfino determined his own route and the number of loads he transported.  Melendez did not
have any authority to hire or fire Delfino.

The Martinezes contend that Melendez should have known that Delfino would work on the job
because Salvador’s truck bore the “Bello Transportation” label.  The evidence, however, does not
raise a fact issue to support this contention.  Salvador, not Melendez, informed Delfino about the job
and provided him with the truck he used to perform the work.  Melendez’s only contact was with
Salvador: all the stubs he collected were made out in Salvador’s name, and Melendez paid Salvador
with a personal check written out to Salvador individually.

Salvador testified that he did not regard Delfino as an employee.  Salvador, like Melendez, described
himself as a sole proprietor, and posted a corporate name on his truck to comply with regulations.  
The fact that Salvador labeled his truck “Bello Transportation” does not raise a material fact issue that
Melendez was ever put on notice that, by inviting Salvador to haul loads to and from the Hays
worksite, he was also inviting Delfino.[3]

   The Martinezes point to equivocal statements and disagreements between Melendez and Hays as
to whether Hays “hires” drivers or truck brokers, or whether Melendez “paid” the Bellos, contending
that they raise a fact issue concerning Delfino’s employment status.  The issue, however, is not how
Hays labeled their relationship, but whether the facts show that Melendez could or did exercise control
over the operative details of Delfino’s work.  See Dow Chem. Co., 89 S.W.3d at 606.  Here, no
evidence presents such a showing.  Consequently, no general employer-employee relationship exists
to impose vicarious liability or liability for negligent training or hiring on Melendez, and the trial court
correctly granted Melendez’s motion for summary judgment.

   Statutory employer status

The Federal Motor Carrier Safety regulations define “employer” as “[a]ny person engaged in a
business affecting interstate commerce who owns or leases a commercial motor vehicle in connection
with that business, or assigns employees to operate it. . . .”  49 C.F.R. § 390.5.[4]  The Martinezes
contend that fact issues exist concerning whether Melendez is an employer under this definition
because he was responsible for hauling dirt and hired the Bellos to haul dirt.  We disagree with this
contention.  The evidence conclusively shows that the truck used by Bello was not owned or leased
by Melendez.  Melendez is not an employer under the regulation because Melendez did not own or
lease the vehicle Bello operated, a requirement of the regulation.  For this reason, we hold that the
trial court properly rejected the Martinezes’ claims under this theory.

Claims addressed in summary judgment motion

The Martinezes claim that the trial court erred in granting summary judgment on all of their claims
against Melendez because his motion for summary judgment did not address their claims for negligent
hiring, supervision, training, and negligence per se asserted in their fifth amended petition.  This
contention lacks merit because each of the Martinezes’ causes of action against Melendez relies on
the imposition of vicarious liability through proof of an employer-employee relationship with Bello.  
Because the undisputed evidence shows, as a matter of law, that no employer-employee relationship
existed between Melendez and Delfino Bello the time of this accident, and that Melendez had no right
to control the details of Delfino’s work, we hold that the trial court properly granted summary judgment
dismissing all of the Martinezes’ claims against Melendez.

Conclusion

We hold that the trial court properly granted summary judgment dismissing the Martinezes’ claims
against Melendez.  We therefore affirm the judgment of the trial court.

                                                   
Jane Bland

                                                   Justice

Panel consists of Judges Bland, Sharp, and Taft.[5]

[1] Melendez testified that he labeled his truck “Moises Melendez Trucking,” but did not create a
separate corporate entity with that name.

[2] Delfino testified in his deposition that he worked jobs using the truck as directed by Salvador, who
paid him in cash by the job.  Salvador, in his deposition, testified that he did not consider Defino as an
employee.

[3] With their motion for rehearing, The Martinezes attach excerpts from Salvador’s deposition
testimony that, they admit, do not appear in the record and were not before the trial court when it
ruled on the summary judgment motion.  We may not consider these materials. See Tex. R. App. P.
34.1; Tanner v. McCarthy, 274 S.W.3d 311, 323 n.22 (Tex. App.—Houston [1st Dist.] 2008, no pet.).

[4]  The regulation expressly limits its application to persons “engaged in interstate commerce,” and,
as Melendez points out, no Texas case has adopted it in imposing vicarious liability.  Our analysis in
no way indicates either approval or disapproval of the Martinezes’ vicarious liability theory under this
regulatory definition of “employer.”

[5] Justice Tim Taft, who retired from the First Court of Appeals on June 1, 2009, continues to sit by
assignment for the disposition of this case, which was submitted on March 30, 2009.