MEMORANDUM OPINION

Court of Appeals of Texas,

Houston (1st Dist.).

Luci MARTINEZ, Individually and as the Personal Representative of the Estate of Luis Martinez, Deceased, José Martinez, and Maria Martinez, Appellants.

v.

Moíses MELENDEZ, Appellee.

No. 01-08-00850-CV.

June 25, 2009.

On Appeal from the 190th District Court, Harris County, Texas, Trial Court Cause No. 0637379B.

Panel consists of Judges BLAND, SHARP, and TAFT.FN*

FN* 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.

MEMORANDUM OPINION

JANE BLAND, Justice.

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, discusses the project and asks him to haul 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 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 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 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, Melendez gave 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.On the third day of that work week, the 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 Salvador Bello 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.

Some evidence suggests that the Bello brothers were partners in a business called Bello Transportation, and that the business owned the truck, although the title lists Salvador individually as the owner.

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-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 therefore must prove that (1) the owner had a contractual right of control or exercised actual control, in a way that extends to the operative detail 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 had no control over the operative detail 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. Delfino’s brother, not Melendez, informed Delfino about the job and provided him with the truck he used to perform the work.

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 Bello’s employment status. The issue, however, is not how the parties label their relationship, but whether the facts show that one controls the operative details of the other’s work. See Dow Chem. Co., 89 S.W .3d at 606. Here, none of the evidence raises a fact issue showing that Melendez had any control over the details of Delfino’s work. Consequently, to the extent the Martinezes rely on a general employer-employee relationship to impose vicarious liability or liability for negligent training or hiring on Melendez, 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.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. Whether Melendez assigned Bello to assist in hauling dirt does not demonstrate that Melendez is 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.

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.”

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 rely 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 at the time of this accident and that Melendez had no right to control 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.

Tex.App.-Houston [1 Dist.],2009.

Martinez v. Melendez

Not Reported in S.W.3d, 2009 WL 1813152 (Tex.App.-Hous. (1 Dist.))

END OF DOCUMENT