United States District Court,

C.D. Illinois,

Springfield Division.

GREAT WEST CASUALTY COMPANY, Plaintiff,

v.

ROSS WILSON TRUCKING; Transport Services of Sullivan, IL, LLC; Mark J. Muncy; Stevan Schmelzer; and Shelly Schmelzer, Defendants.

No. 3:16-CV-03253

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Signed September 01, 2017

Attorneys and Law Firms

Danny Worker, Siobhan Murphy, Vincent P. Tomkiewicz, Lewis Brisbois Bisgaard & Smith LLP, Chicago, IL, for Plaintiff.

Troy Allen Lundquist, Bart Robert Zimmer, Langhenry Gillen Lundquist & Johnson LLC, Joliet, IL, Matthew Parmenter, Monica C. Gilmore, Gilmore Law Office LLC, Vicennes, IN, Bruce Arthur Smith, Bingham Greenebaum Doll LLP, Evansville, IN, for Defendants.

 

 

OPINION

SUE E. MYERSCOUGH, UNITED STATES DISTRICT JUDGE

*1 This cause is before the Court on Plaintiff Great West Casualty Company’s Motion for Judgment on the Pleadings (d/e 34). Plaintiff asks the Court to find that Plaintiff has no obligation to defend or indemnify Defendants Ross Wilson Trucking, Transport Services of Sullivan, IL, LLC (Transport Services), or Mark J. Muncy for the allegations in the underlying lawsuit filed by Defendants Stevan Schmelzer and Shelly Schmelzer. Because Plaintiff has failed to demonstrate that Plaintiff is entitled to judgment as a matter of law, the Motion is DENIED.

 

 

1. LEGAL STANDARD

A party may move for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). The standard for a Rule 12(c) motion is the same as the standard for a Rule 12(b)(6) motion to dismiss for failure to state a claim. Lodholtz v. York Risk Servs. Group, Inc., 778 F.3d 635, 639 (7th Cir. 2015). That is, the Court asks “whether the pleadings state a claim for relief that is plausible on its face.” Andy Mohr Truck Ctr., Inc. v. Volvo Trucks N. Am., ––– F. 3d ––––, 2017 3695355, *8 (7th Cir. Aug. 28, 2017). The Court draws “all reasonable inferences and facts in favor of the nonmovant, but need not accept as true any legal assertions.” Wagner v. Teva Pharm. USA, Inc., 840 F.3d 355, 358 (7th Cir. 2016). The Court may consider only the pleadings—the complaint, the answer, and any written instruments attached as exhibits. N. Ind. Gun & Outdoor Shows, Inc. v. City of S. Bend, 163 F.3d 449, 452 (7th Cir. 1998); see also 188 LLC v. Trinity Indus., Inc., 300 F. 3d 730, 735 (7th Cir. 2002) (on a motion to dismiss pursuant to Rule 12(b)(6), the court may also consider documents referred to in the complaint that are central to the claim).

 

 

1. BACKGROUND

The Court takes the following background from the Complaint for Declaratory Judgment, the exhibits attached thereto, and the Answers.

 

 

1. Transport Services and Ross Wilson Trucking Enter Into an Independent Contractor Agreement for Owner-Operator

Transport Services and Ross Wilson Trucking entered into an “Independent Contractor Agreement for Owner-Operator” (Agreement) dated January 1, 2012. Compl., Ex. 2 (d/e 1-3). The Agreement provides that Transport Services is:

a for[-]hire motor carrier of property holding licenses from the Federal Motor Carrier Safety Administration (“FMCSA”) as well as various state regulatory agencies, is engaged in the business of providing transportation services for shippers, and intends to contract with CONTRACTOR, on a non-exclusive basis for the lease of motor vehicle equipment as set forth herein and for the performance of certain tasks[.]

Agreement at 1. The Agreement identifies Ross Wilson Trucking as the “CONTRACTOR.” The Agreement reflects that Ross Wilson Trucking hauls under the authority of Transport Services.

 

The Equipment leased includes a 2012 Peterbilt tractor, model 386, and a 2016 Peterbilt tractor, model 579 (the latter added to the Agreement in May 2015). Agreement, App. A. Ross Wilson Trucking was required, under the Agreement, to furnish qualified drivers to operate all Equipment leased pursuant to the Agreement. Agreement ¶ 8E.

 

*2 To put the Agreement in context, the Court notes that a motor carrier like Transport Services can own its own trucking equipment or can enter into a written lease with the owner of trucking equipment. See Clarendon Nat’l Ins. Co. v. Medina, 645 F.3d 928, 931 (7th Cir. 2011); see also 49 C.F.R. § 376.11 (providing the conditions under which an authorized carrier may perform authorized transportation with equipment it does not own). Under the written lease, the owner of the equipment (in this case, Ross Wilson Trucking) “grants the use of equipment, with or without a driver, for a specified period to an authorized carrier for use in the regulated transportation of property, in exchange for compensation.” 49 C.F.R. § 376.2(e) (defining “lease”); see also Clarendon, 645 F.3d at 931. The written lease must provide that the:

authorized carrier lessee shall have exclusive possession, control, and use of the equipment for the duration of the lease. The lease shall further provide that the authorized carrier lessee shall assume complete responsibility for the operation of the equipment for the duration of the lease.

49 C.F.R. § 376.12(c)(1).

 

In this case, the Agreement contains such a provision, which provides that, for the term of the Agreement, the Equipment is under Transport Service’s exclusive possession, use, and control and that Transport Services assumes full responsibility for the operation of said equipment as to all third parties and the public at large. Agreement ¶ 3B. The Agreement also provides, however, that Ross Wilson Trucking could lease or “trip” other carriers when the Equipment was not being used by Transport Services. Id. ¶ 13B. Ross Wilson Trucking agreed to remove any signs or other identification on the Equipment containing Transport Services’ name or motor carrier identification number when Ross Wilson Trucking was not operating under Transport Services’ operating authorities or otherwise operating in service of Transport Services pursuant to the Agreement. Id. ¶ 13C.

 

The Agreement addresses which party is required to provide the necessary insurance:

INSURANCE. It is recognized that the United States Department of Transportation and various other regulatory bodies require the carrier under whose certificates or permits leased Equipment is being operated to be responsible to the public with respect to such Equipment while the same is being operated under its authority. TRANSPORT SERVICES will file, or has on file, with the United States Department of Transportation and any other regulatory body having jurisdiction over its operations, evidence of insurance in such amounts as may be required by law or regulation of said agencies, and will continuously maintain in effect insurance in such amount.

CONTRACTOR shall secure, at its sole expense, insurance in the minimum amount of $1,000,000 combined single limits covering bob-tail and dead-heading1 on the Equipment leased herein and shall furnish TRANSPORT SERVICES with a certificate naming TRANSPORT SERVICES as an additional insured thereunder. In addition, CONTRACTOR will carry, at its sole expense, its own insurance coverage on the Equipment leased for collision, fire, theft and other occurrence or catastrophe, and TRANSPORT SERVICES shall be named as an insured thereunder also.

Agreement ¶ 7G. In addition, the Agreement requires that Ross Wilson Trucking carry, at its own expense, Commercial General Liability Coverage, Commercial Automobile coverage, and Workers’ Compensation Coverage. Id. ¶ 8A.

 

*3 Finally, the Agreement contains the following indemnification provision, which Defendants assert constitutes an “insured contract”:

As between TRANSPORT SERVICES and CONTRACTOR only, without any regard or effect upon the obligations of TRANSPORT SERVICES to any third party, CONTRACTOR agrees to be responsible for, indemnify, defend and hold TRANSPORT SERVICES harmless from any and all claims of any nature, losses, personal injury, death, and/or damage to cargo or other property, and/or claim for any such loss or occurrence which may arise from or in connection with the operations performed or to be performed pursuant to this Agreement, however arising, without regard to fault or negligence on the part of CONTRACTOR. This is to include, but is not limited to, attorneys’ fees and any other expenses incurred in defending or prosecuting any claim arising as a result of any of the above or operation of the Equipment leased herein.

Id. ¶ 14.

 

 

1. Plaintiff Issues Non-Trucking Use Policy

Plaintiff issued a Non-Trucking Use policy of Commercial Auto Insurance to the “Independent Contractors of Transport Services of Sullivan IL, LLC” for the policy period November 1, 2015 to November 1, 2016 (the Policy). Compl. ¶ 16. There is no dispute that Ross Wilson Trucking is an independent contractor of Transport Services. See Pl. Mem. at 2 (d/e 34-1).

 

The Policy provides for coverage as follows:

1. COVERAGE

We will pay all sums an “insured” legally must pay as damages because of “bodily injury” or “property damage” to which this insurance applies, caused by an “accident” and resulting from the ownership, maintenance or use of a covered “auto” only while:

1. A covered “auto” is not used to carry property in any business; and
2. A covered “auto” is not used in the business of anyone to whom the “auto” is rented, leased or loaned.

Compl. ¶ 17, Ex. 3 (d/e 1-5, p. 46 of 64). For liability claims, covered “autos” under the Policy are identified with the symbol “59,” which is further defined as follows:

59= INDEPENDENT CONTRACTOR COMMERCIAL AUTOS. Only those trucks, tractors and “trailers2” on file with us that are leased by the “motor carrier” shown in the Declarations under this symbol and only while under a written lease agreement of thirty (30) days or more. This includes only those “autos” for which a premium has been paid for the coverages offered by the policy and only while the lease is in force. If the lease is cancelled or expires then no coverage shall apply.

Id. ¶ 18, Ex. 3 (d/e 1-4, p. 18 of 69), (d/e 1-5, p. 44 of 64). The Policy defines “insureds” to include the following:

1. WHO IS AN INSURED

 

The following are “insureds”:

3. You for any covered “auto”3.
4. Anyone else while using with your permission a covered “auto” you own, hire or borrow except:

(1) The owner, or any “employee”, agent or driver of the owner, or anyone else from whom you hire or borrow a covered “auto”.

* * *

1. The owner or anyone else from whom you hire or borrow a covered “auto” that is a “trailer” while the “trailer” is being used exclusively by you and:

(1) is not used to carry property in any business; and

(2) is not used in the business of anyone to whom the “auto” is rented, leased or loaned.

*4 However, Who is an Insured does not include anyone engaged in the business of transporting property by “auto” for hire who is liable for your conduct.

Id. ¶ 19, Ex. 3 (d/e 1-5, p. 46 of 64). The Policy also contains certain exclusions. One exclusion is the non-trucking use exclusion:

15. MOTOR CARRIER OPERATIONS

 

This insurance does not apply to:

1. A covered “auto” while used to carry property in any business; or
2. A covered “auto” while used in the business of anyone to whom the “auto” is rented, leased or loaned.

Id. ¶ 20, Ex. 3 (d/e 1-5, p. 50 of 64).

 

The Policy also contains another exclusion. The Policy provides that the insurance does not apply to liability assumed under a contract or agreement. Compl., Ex. 3 (d/e 1-5, p. 47 of 64). This exclusion does not apply, however, to liability for damages that are:

1. Assumed in a contract or agreement that is an “insured contract” provided the “bodily injury” or “property damage” occurs subsequent to the execution of the contract or agreement; or
2. That the “insured” would have in the absence of the contract or agreement.

Id. The Policy defines an “insured contract” to include:

5. That part of any other contract or agreement pertaining to your business … under which you assume the tort liability of another to pay for “bodily injury” or “property damage” to a third party or organization. Tort liability means a liability that would be imposed by law in the absence of any contract or agreement[.]

Id. (d/e 1-5, p. 58 of 64). The Policy further provides that an “insured contract” does not include that part of any contract or agreement:

1. That holds a person or organization engaged in the business of transporting property by “auto” for hire harmless for your use of a covered “auto” over a route or territory that person or organization is authorized to serve by public authority.

Id.

 

 

1. The Underlying Lawsuit

On or about March 18, 2016, Stevan Schmelzer and Shelly Schmelzer filed a lawsuit titled Stevan Schmelzer and Shelly Schmelzer v. Mark J. Muncy, Ross Wilson Trucking, and Transport Services of Sullivan, United States District Court for the Southern District of Illinois, Case No. 16-cv-290 (the Underlying Lawsuit). Compl. ¶ 11; see also Ex. 1, Am. Compl. for Bodily Injury (d/e 1-2). The complaint in the Underlying Lawsuit alleges the following.

 

Muncy was an agent, servant, or employee of Ross Wilson Trucking and Transport Services. See Compl., Ex. 1, Am. Compl. for Bodily Injury ¶¶ 11, 12 (Underlying Complaint) (d/e 1-2). At around 6:00 p.m. on January 14, 2016, while acting in the scope of his agency or employment, Muncy operated a 2012 Peterbilt semi tractor owned by Ross Wilson Trucking on Route 130 in Richland County, Illinois. Id. ¶¶ 13, 14, 15. Muncy was towing a semi tanker trailer that was owned by Transport Services. Id. ¶ 16. Muncy attempted to back his semi tractor and trailer from Route 130 into a private drive and did so in a fashion that the tanker trailer was completely blocking the southbound lane of the roadway. Id. ¶ 17. Stevan Schmelzer was operating a vehicle on Route 130 and collided with the semi tanker trailer. Id. ¶¶ 18, 19. The Schmelzers allege that Muncy was negligent and his negligence caused injury and damages to the Schmelzers. Id. ¶¶ 20, 21, 24.

 

 

1. Transport Services Requests a Defense and Indemnity

*5 Transport Services sent notice of the collision to Plaintiff and requested a defense and indemnity in the Underlying Lawsuit from Plaintiff pursuant to the Policy. Compl. ¶ 14. Plaintiff concluded that it had no duty to defend or indemnify Transport Services, Ross Wilson Trucking, or Muncy. Compl. ¶ 15.

 

 

1. Plaintiff Files Suit Seeking Declaratory Judgment

In September 2016, Plaintiff filed a four-count Complaint for Declaratory Judgment against Ross Wilson Trucking, Transport Services, Muncy, and the Schmelzers. Plaintiff alleges that (1) the subject loss falls outside of the non-trucking coverage grant (Count I); (2) the subject loss is an excluded trucking loss (Count II); (3) Transport Services is not an insured under the Policy (Count III); and (4) Transport Services is not entitled to supplemental payments toward its defense (Count IV). Plaintiff seeks a declaration that Plaintiff does not have a duty to defend or indemnify any party with regard to the allegations of the Underlying Lawsuit.

 

Ross Wilson Trucking, Transport Services, and Muncy filed an answer and affirmative defenses (d/e 32). The three affirmative defenses raised are illusory coverage, ambiguity, and waiver and estoppel. The Schmelzers also filed an answer and affirmative defenses (d/e 30). The affirmative defenses raised are improper venue4 and illusory coverage.

 

On March 13, 2017, Plaintiff filed the Motion for Judgment on the Pleadings (d/e 34) at issue herein.

 

 

III. ANALYSIS

Plaintiff asserts that the Policy provides coverage only to an insured and only for the risk that a covered auto will be in an accident when that auto is not engaged in the business of trucking. Plaintiff asserts that the complaint in the Underlying Lawsuit alleges that Ross Wilson Trucking and Muncy were engaged in the business of trucking for Transport Services. Plaintiff also argues that Transport Services is not an insured under the Policy.

 

Because this Court’s jurisdiction is based on diversity of citizenship, the Court must apply state law to the substantive issues in the case. Lodholtz, 778 F.3d at 639. Plaintiff asserts, and no party disputes, that Illinois law applies.

 

Under Illinois law, an insurer’s duty to defend is broader than the duty to indemnify. Outboard Marine Corp. v. Liberty Mut. Ins. Co., 154 Ill. 2d 90, 125 (1992). To determine whether the insurer has a duty to defend, the court looks at the allegations in the underlying complaint and compares those allegations to the relevant provisions of the insurance policy. Id. at 107-08. If the facts alleged in the underlying complaint fall within, or potentially fall within, the policy’s coverage, the insurer has a duty to defend. Id. at 108; see also U.S. Fid. & Guar. Co. v. Wilkin Insulation Co., 144 Ill. 2d 64, 73 (1991) (in a declaratory action, courts in Illinois will find a duty to defend even if only one theory alleged in the underlying complaint is potentially within the policy’s coverage). An insurer does not have a duty to defend where “ ‘it is clear from the face of the underlying complaint that the allegations fail to state facts which bring the case within, or potentially within, the policy’s coverage.’ ” Connecticut Indem. Co. v. DER Travel Serv., Inc., 328 F.3d 347, 349 (7th Cir. 2003) (quoting Wilkin, 144 Ill. 2d at 73). The court construes the underlying complaint liberally in favor of the insured. Lyons v. State Farm Fire & Cas. Co., 349 Ill. App. 3d 404, 407 (2004).

 

*6 The construction of an insurance policy is a question of law. Am. States Ins. Co. v. Koloms, 177 Ill. 2d 473, 480 (1997). In construing an insurance policy, the court must ascertain and give effect to the intentions of the parties as expressed in their agreement. Hobbs v. Hartford Ins. Co. of the Midwest, 214 Ill. 2d 11, 17 (2005). If the terms of the policy are clear and unambiguous, then the court gives the terms their plain and ordinary meaning. See Nicor, Inc. v. Associated Elec. & Gas Ins. Servs. Ltd., 223 Ill. 2d 407, 416 (2006). Conversely, if the terms of the policy are susceptible of more than one meaning, then the court considers the terms ambiguous and construes the policy strictly against the insurer who drafted the policy. Rich v. Principal Life Ins. Co., 226 Ill. 2d 359, 371 (2007). Illinois courts construe the insurance policy as a whole, taking into account the type of insurance purchased, the nature of the risks involved, and the overall purpose of the contract. Id.

 

 

1. Plaintiff is Not Entitled to Judgment on the Pleadings on the Ground that the Subject Loss is Not a Covered Loss

The Policy excludes coverage for:

1. A covered “auto” while used to carry property in any business; or
2. A covered “auto” while used in the business of anyone to whom the “auto” is rented, leased or loaned.

Compl., Ex. 3 (d/e 1-5, p. 50 of 64). Plaintiff argues that the subject loss is not a covered loss under the Policy because the Underlying Complaint alleges that Muncy was acting within the scope of his agency or employment as a trucker at the time of the accident. Plaintiff also notes that the Underlying Complaint alleges that Muncy was towing a semi tanker trailer owned by Transport Services at the time of the accident.

 

Liberally construing the Underlying Complaint in favor of the insureds, the Court finds that Plaintiff has failed to demonstrate that the subject loss is not a covered loss. First, there are no allegations in the Underlying Complaint indicating whether the semi tractor was being used to carry property. Therefore, it is not clear that subsection (a) would apply to exclude coverage.

 

Second, Plaintiff has not shown that subsection (b) applies. The Underlying Complaint alleges that, at all relevant times, Muncy was an agent, servant, or employee of Ross Wilson Trucking and Transport Services. The Underlying Complaint also alleges that Muncy was acting within the course and scope of his agency or employment with Ross Wilson Trucking and Transport Services.

 

The allegations pertaining to Muncy’s agency, employment or course of his agency or employment can be construed, however, as seeking relief under different theories of recovery. As noted above, the underlying complaint is liberally construed in favor of the insured. Wilkin, 144 Ill. 2d at 74. And, if the underlying complaint alleges multiple theories of recovery, an insurer still has a duty to defend even if only one theory is within the coverage of the policy. Pekin Ins. Co. v. Centex Homes, 2017 IL App (1st) 153601, ¶ 34. In this case, the Underlying Complaint can be read to allege that Muncy was acting in the course of his agency or employment with Ross Wilson Trucking and Transport Services or just within the course of his agency or employment with Ross Wilson Trucking but not Transport Services. If Muncy was acting solely within the scope of his employment or agency with Ross Wilson Trucking, subsection (b) would not apply because the covered auto (the semi tractor) was not being used in the business of anyone (i.e. Transport Services) to whom the semi tractor was rented, leased, or loaned.

 

The Independent Contractor Agreement provides that the Equipment was under the exclusive possession, use, and control of Transport Services during the term of the agreement, which would suggest that the semi tractor must have been used in the business of Transport Services. However, the Agreement also provides that Ross Wilson Trucking could lease or “trip” to other carriers when the Equipment was not being used by Transport Services. Compare Registration/licensing of Transport Services provision (d/e 1-3, ¶ 3B) with Subleasing/Trip Leasing/Etc. provision (d/e 1-3 ¶ 13B). Therefore, the Agreement does not conclusively show that the covered auto was being used in the business of Transport Services.

 

*7 In addition, while the Underlying Complaint alleges that Muncy was towing a semi tanker trailer owned by Transport Services, there are circumstances under which a truck driver is not towing a trailer in the business of the trailer owner. For example, in St. Paul Fire & Marine Ins. Co. v. Frankart, 69 Ill. 2d 209, 216 (1977), which contained a similar exclusionary provision to the one at issue herein, the Illinois Supreme Court found that the policy would exclude coverage for an accident that occurred when the tractor was pulling an empty trailer if the trailer was being used in the business of a lessee. The Illinois Supreme Court further found, based on the evidence presented, that the assignment for the lessee continued at least until the owner-driver returned to the point where the haul originated, to the terminal from which the haul was assigned, or to the owner-driver’s home terminal from which he customarily obtained his next assignment. Id. at 218 (concluding that the exclusion applied because, during the driver’s return trip to his home, the tractor-trailer continued to be used in the business of lessee). Here, no facts about a Transport Services or other job assignment are alleged in the Underlying Complaint. If Muncy operated the semi tractor (the covered auto) while pulling an empty trailer and was not using the semi tractor in the business of Transport Services or anyone to whom the semi tractor was rented, leased or loaned, the Policy may provide coverage. Therefore, at this stage of the litigation, the Underlying Complaint appears to allege facts that would potentially fall within the Policy’s coverage. Consequently, Plaintiff has not demonstrated that it has no duty to defend on the ground that the subject loss was not a covered loss.

 

 

1. Plaintiff is Not Entitled to Judgment on the Pleadings on the Ground that Transport Services is Not an Insured

Plaintiff also argues that Transport Services is not entitled to a defense or indemnification from Plaintiff because Transport Services is not an insured under the Policy.

 

Plaintiff argues that Transport Services is not a named insured. Plaintiff further notes that Transport Services is sued in the Underlying Lawsuit on the theory that Transport Services is liable for the conduct of Ross Wilson Trucking. The Policy excludes from the definition of “insured” “anyone engaged in the business of transporting property by ‘auto’ for hire who is liable for your [Ross Wilson Trucking’s] conduct.” Therefore, according to Plaintiff, Transport Services cannot be an insured.

 

However, no determination has been made whether Transport Services is liable for Ross Wilson Trucking’s conduct so it is not established that the exclusion applies. Moreover, the Court has insufficient information at this point to determine whether Transport Services is an insured under an “insured contract.” Therefore, Plaintiff has not demonstrated that Transport Services is not an insured.

 

 

1. CONCLUSION

For the reasons stated, Plaintiff’s Motion for Judgment on the Pleadings (d/e 34) is DENIED.

 

All Citations

Slip Copy, 2017 WL 3835699

 

 

Footnotes

1

Bob-tailing is the operation of a tractor without a trailer and dead-heading is the operation of a tractor while pulling an empty trailer. See St. Paul Fire & Marine Ins. Co. v. Frankart, 69 Ill. 2d 209, 212 (1977).

2

The Policy defines “trailer” as including “a semitrailer or a dolly used to convert a semitrailer into a “trailer.” “Trailer” does not include a shipping container but does include the chassis used to transport it.” Compl. ¶ 19 n.2, Ex. 3 (d/e 1-4, p. 59 of 64).

3

Plaintiff agrees that the word “you” in the Policy refers to Ross Wilson Trucking. See Mem. at 2-3 (noting that “You” refers to the independent contractors of Transport Services and admitting that Ross Wilson Trucking is an independent contractor); at 7 (noting that “You” refers to Ross Wilson Trucking).

4

On February 22, 2017, this Court denied the Schmelzer’s Motion to Dismiss or, in the Alternative, to Transfer Action. Opinion (d/e 33) (finding venue proper in the Central District of Illinois).

Court of Appeals of Texas,

Corpus Christi-Edinburg.

Appellee.

NUMBER 13–16–00546–CV

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Delivered and filed August 31, 2017

On appeal from the 85th District Court of Brazos County, Texas.

Attorneys and Law Firms

Joe Michael Dodson, for Brazos Paving, Inc.

JoAnn Storey, for Nicolette Elvir.

Before Chief Justice Valdez and Justices Longoria and Hinojosa

 

 

MEMORANDUM OPINION1

 

Memorandum Opinion by Justice Hinojosa

*1 In the underlying lawsuit, appellant Nicolette Elvir sought recovery for personal injuries sustained in a motor vehicle collision with Domingo Galvan, a commercial truck driver, from, among others, appellee Brazos Paving, Inc. In six issues, which we re-order and classify as four, Elvir challenges a take nothing summary judgment and severance granted in favor of Brazos Paving on the grounds that the trial court erred by: (1) concluding that Elvir failed to produce legally sufficient evidence to defeat Brazos Paving’s no evidence summary judgment ground regarding control of Galvan; (2) concluding that Brazos Paving conclusively established that it did not control Galvan; (3) granting Brazos Paving more relief than it asked for; and (4) severing Elvir’s claims against Brazos Paving from those against the remaining co-defendants. We affirm.

 

 

1. BACKGROUND2

Brazos Paving is a Texas business entity with offices in Bryan, Texas. It is a subcontractor that provides general contractors with earth moving, building site clearing, and paving services. Brazos Paving entered into a contract with Construction Enterprises, Inc. (CEI), a general contractor, to provide services for the construction of Northpoint Crossing Student Housing, a building project near the campus of Texas A & M University in College Station, Texas.

 

Although Brazos Paving is a licensed motor carrier under Texas regulations and has its own commercial drivers and trucks, it routinely contracts with commercial trucking companies to haul building-site material. One of those companies is Henry Jones d/b/a HJ & DJ Trucking (HJ & DJ Trucking), a motor carrier that owns one dump truck and hauls gravel, dirt, sand, and rock. Brazos Paving and HJ & DJ Trucking had a pre-existing contract that continued to govern its relationship with HJ & DJ Trucking on the Northpoint Crossing project. In order for HJ & DJ Trucking to fulfill its obligations to Brazos Paving, HJ & DJ Trucking retained the trucks and driving services of other trucking companies. One of those trucking companies was Jose B. Pachuca d/b/a J.B.P. Trucking (JBP Trucking), and it employed Galvan.

 

On May 6, 2013, Elvir, a twenty-year old student at Texas A & M University, drove southbound in a Ford Escape on state highway 47 in Bryan, Texas. At the same time, a dump truck, operated by Galvan and owned by JBP Trucking, entered the highway. Galvan’s and Elvir’s vehicles collided, and both flipped over. Passersby rescued Elvir from her burning vehicle before it was engulfed in flames.

 

Initially, Elvir sued JBP Trucking and Galvan. Thereafter, Elvir settled with both. Later, Elvir sued HJ & DJ Trucking and then added Brazos Paving. Against Brazos Paving, Elvir asserted eight theories of vicarious liability for the alleged negligence of HJ & DJ Trucking, JBP Trucking, and Galvan: (1) non-employee mission liability, (2) borrowed employee, (3) respondeat superior, (4) agency,3 (5) statutory employee, (6) partnership, (7) joint venture, and (8) joint enterprise. Elvir also asserted that Brazos Paving was directly negligent on the ground that it negligently hired, selected, and entrusted: (a) HJ & DJ Trucking “to select other trucks and truck drivers for its use when the company had no freight broker’s license and/or had a poor maintenance record” and (b) JBP Trucking “and/or” Galvan.

 

*2 Brazos Paving filed a motion for summary judgment on both no evidence and traditional grounds. Generally, Brazos Paving asserted that it owed no duty to Elvir because it did not control Galvan, an employee of JBP Trucking, a subcontractor twice removed from Brazos Paving. Elvir responded by arguing that Brazos Paving owed her a duty because Galvan was its statutory employee under federal and Texas regulations. The matter was submitted at an oral hearing. The trial court granted summary judgment in favor of Brazos Paving without specifying any grounds. Over Elvir’s objection, the trial court granted Brazos Paving’s motion to sever the claims disposed of by summary judgment against Brazos Paving from the claims asserted against the remaining co-defendants. This appeal followed.

 

 

1. NO EVIDENCE SUMMARY JUDGMENT

In Elvir’s first issue, she challenges the trial court’s granting of a no evidence summary judgment in favor of Brazos Paving.4 Elvir contends that she presented some evidence that Brazos Paving controlled HJ & DJ Trucking, JBP Trucking, and Galvan.

 

 

1. No Evidence Summary Judgment Standard of Review

A no evidence motion for summary judgment is essentially a pretrial motion for directed verdict, and we apply the same legal sufficiency standard of review. Moreno v. Quintana, 324 S.W.3d 124, 129 (Tex. App.–El Paso 2010, pet. denied). In our de novo review of a trial court’s summary judgment, we consider all the evidence in the light most favorable to the non-movant, crediting evidence favorable to the non-movant if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006); City of Keller v. Wilson, 168 S.W.3d 802, 825 (Tex. 2005). A no evidence summary judgment is improperly granted if the non-movant brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. Mathis v. Restoration Builders, Inc., 231 S.W.3d 47, 50 (Tex. App.–Houston [14th Dist.] 2007, no pet.). When an order granting summary judgment does not specify the grounds on which summary judgment was granted, we may uphold the summary judgment on any ground presented in the motion. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004).

 

 

1. Control

Brazos Paving’s primary no evidence summary judgment ground argued that Elvir had no evidence that Brazos Paving controlled JBP Trucking and Galvan, and therefore, all of Elvir’s vicarious liability theories failed.5 Elvir’s response generally contended that the contract between Brazos Paving and CEI “required [Brazos Paving] to assume a level of control over the” location where the dump truck driven by Galvan was coming from when the collision with Elvir occurred. On appeal, Elvir flushes out specific provisions from Brazos Paving’s contract with CEI to support her contractual control argument. See Lee Lewis Const., Inc. v. Harrison, 70 S.W.3d 778, 783 (Tex. 2001) (providing that a general contractor can retain the right to control an aspect of an independent contractor’s work or project so as to give rise to a duty of care to that independent contractor’s employees in two ways: by contract or by actual exercise of control). We address Elvir’s contractual control contentions before turning to the issue of actual control.

 

 

1. Contractual Control

*3 A general contractor normally does not have a duty to see that an independent contractor performs work safely. Elliott-Williams Co., Inc. v. Diaz, 9 S.W.3d 801, 803 (Tex. 1999). But a duty may arise when a general contractor retains “some control over the manner in which the independent contractor’s work is performed.” Id. (quoting Hoechst–Celanese Corp. v. Mendez, 967 S.W.2d 354, 356 (Tex. 1998) (per curiam)). For a general contractor to be liable for its independent contractor’s acts, it must have the right to control the means, methods, or details of the independent contractor’s work. Id. Further, the control must relate to the injury the negligence causes, and the contract must grant the contractor at least the power to direct the order in which work is to be done. Id. These rules have been equally applied to subcontractors. See Gonzalez v. VATR Const. LLC, 418 S.W.3d 777, 786 (Tex. App.–Dallas 2013, no pet.) (holding that the evidence conclusively disproved a contractual right of control for a roofing subcontractor who was three tiers of subcontractors removed from a fatally injured worker); see also Motloch v. Albuquerque Tortilla Co., Inc., 454 S.W.3d 30, 34 (Tex. App.–Eastland 2014, no pet.) (concluding that a plaintiff’s argument that a tortilla maker should have required a delivery company to adopt and enforce policies with respect to its drivers’ qualifications was an indication that the tortilla maker did not exercise control of the delivery company’s hiring or its distribution operations).

 

As for the contract between Brazos Paving and CEI, Elvir points to three articles in the contract, a work ticket, and the testimony of William J. Prewitt, a vice president of Brazos Paving and its designated corporate representative, as evidence of contractual control. Article 1 of the contract provides in relevant part:

Work. Subcontractor shall perform and furnish all labor, supervision, services, materials, equipment, tools, scaffold, transportation, storage and all other things necessary to prosecute and complete the work identified and described in Schedule A, attached hereto and incorporated herein by reference including all subsequently and duly issued modifications thereto (hereinafter the “Work”), being a portion of the work required of Contractor under the contract between Owner and Contractor for the Project. …

Article 13 of the contract provides in relevant part:

Compliance … Subcontractor shall promptly correct any violations of such laws, statutes, ordinances, rules, regulations and orders committed by Subcontractor, its agents, servants, employees and assigns …

Article 23 of the contract provides in relevant part:

Labor. Subcontractor agrees that where its work is stopped, delayed or interfered with by strikers, slow downs or similar interruptions or disturbances (including cases wherein the Subcontractor’s employees are engaged in a work stoppage solely as a result of a labor dispute involving Contractor or others and not in any manner involving Subcontractor), Contractor shall have the rights and remedies provided for in Article 25 hereof. Subcontractor shall maintain and exercise control over all employees engaged in the performance of the Work, and Subcontractor shall, to the extent permitted by law, remove or cause to be removed from the Project any employee whose presence is detrimental to the orderly prosecution of the construction of the Project. …

The work ticket Elvir references has Galvan’s name and “JBP 21” at the top. “BPI” appears in the “name” section. Elvir also argues that “Prewitt conceded that during the month before the accident someone knew Galvan was driving a JBP truck to the Project job site ‘to do this job for’ Brazos Paving.” The specific exchange was:

Q…. Well, someone knew about a month before this crash happened—as I counted, 16 days—that Domingo Galvan and JB—was driving a JBP truck to BPI [Brazos Paving] to do this job for BPI?

1. U-huh.

 

We fail to see how any of this evidence supports the level of contractual control necessary to impose liability on Brazos Paving, a subcontractor that is two tiers removed from Galvan’s employer. See Mendez, 967 S.W.2d at 356. Article 1 generally refers to the work that was to be performed. Article 13 relates to a contractual promise by Brazos Paving to CEI ensuring that Brazos Paving would correct any violations for work that it was responsible for providing. Article 23 deals with conflict among laborers. Lending every reasonable inference to the work ticket, all it indicates is that Galvan was driving a dump truck that relates in some way to “JBP 21” and “BPI.” Elvir fails to refer us to any authority that supports her contention that Prewitt’s acknowledgement that Galvan “was driving a JBP truck to [ ] do this job for BPI” establishes the type of contractual control necessary to establish liability on Brazos Paving’s part. There is no indication from Prewitt’s acknowledgement that Brazos Paving contractually retained the right to control the means, methods, or details of how JBP Trucking—and by extension Galvan—performed the work that HJ & DJ Trucking retained JBP Trucking to perform. Id.

 

*4 Next, Elvir contends that the pre-existing contract between Brazos Paving and HJ & DJ Trucking is sufficient to hold Brazos Paving liable for the alleged negligence of Galvan. The relevant provisions provide:

Leaser [HJ & DJ Trucking] represents that said motor trucks are in first class condition and in every respect suitable for the transportation of materials. Each and all of said trucks have been duly licensed and are so constructed and equipped as to comply with all of the rules and regulations governing their operation over the highways of this State carrying net loads of the respective amounts as represented on the back hereof. Any repairs necessary to keep the said trucks in good running condition throughout the life of this lease shall be at the expense of the Leaser. …

….

Leaser understands and agrees that he and his trucks are independent contractors as that term is known at law. Leaser is responsible for all wages, payroll taxes, state or federal reports and filings, insurance and other benefits due to his drivers or himself. Leaser shall be given instructions on where to pick up materials, the place of delivery and the time to deliver. It is Leaser’s responsibility to determine his routes or travel, number of trucks, methods of delivery, drivers to assign and all other activities necessary to complete this assignment. When Leaser is not assigned to duties be [sic] Lessee [Brazos Paving] for a particular time, Leaser is free to engage in work for any other person or organization.

Elvir also points to Prewitt’s answer of “Yes, sir,” to her question “So, it’s your understanding, it’s BPI’s understanding that this lease covers all of those trucks that Henry Jones would provide?” Armed with this evidence, Elvir argues:

[T]he undisputed evidence establishes that Henry Jones Trucking expressly retained contractual control over the truck Galvan was driving. Accordingly, because Brazos Paving retained contractual control over Henry Jones Trucking, the trial court erred in granting traditional and no-evidence summary judgment on plaintiff’s claims of vicarious- and direct-liability against Brazos Paving on the ground that it did not exercise actual control over all the trucks Henry Jones Trucking provided.

 

The evidence Elvir references fails to support her argument. There is no indication that Brazos Paving retained the contractual right to control the means, methods, or details of how HJ & DJ Trucking—and by extension JBP Trucking and Galvan—performed the work that HJ & DJ Trucking retained JBP Trucking to perform. See id. To the contrary, the lease that Elvir references expressly disclaims control. See Farlow v. Harris Methodist Fort Worth Hosp., 284 S.W.3d 903, 911 (Tex. App.–Fort Worth 2009, pet. denied) (providing that contract expressly providing that a person is an independent contractor “is determinative of the [parties’] relationship absent evidence that the contract is a mere sham or subterfuge designed to conceal the true legal status of the parties or that the contract has been modified by a subsequent agreement between the parties.”) (citing Newspapers, Inc. v. Love, 380 S.W.2d 582, 588–90, 592 (Tex. 1964)).

 

Elvir also directs us to Prewitt’s answer of “Yes,” over the objection of Brazos Paving’s attorney to the question, “You hired all the subs underneath you that worked on that project; is that right?” As explained in our discussion of Elvir’s negligent entrustment claim below, earlier in his deposition, Elvir’s counsel asked, “Well, JBP Trucking. Is that an outfit that you [Brazos Paving] hired?” Prewitt answered, “No.” Elvir fails to reference any authority for how we should utilize Prewitt’s testimony. She does not contend that Brazos Paving’s contract with HJ & DJ Trucking is a sham or subterfuge designed to conceal the true legal status of the parties or that the contract has been modified by a subsequent agreement between the parties, see Farlow, 284 S.W.3d at 911, but instead references it in support of her contractual control argument. Even if we (1) ignored Brazos Paving’s contract with HJ & DJ Trucking and (2) concluded that Brazos Paving contracted directly with JBP Trucking, thereby pegging Galvan’s employer as being one subcontractor removed, instead of two, from Brazos Paving, the testimony of Prewitt that Elvir references does not establish that Brazos Paving retained contractual control of HJ & DJ Trucking, JBP Trucking, and Galvan.

 

*5 We conclude that Elvir failed to present legally sufficient evidence that Brazos Paving retained contractual control of HJ & DJ Trucking, JBP Trucking, and Galvan. See Mendez, 967 S.W.2d at 356.

 

 

2. Actual Control

The Texas Supreme Court has stated that the exercise of control is evidentiary only and “must be so persistent and the acquiescence therein so pronounced as to raise an inference that at the time of the act or omission giving rise to liability, the parties by implied consent and acquiescence had agreed that the principal might have the right to control the details of the work.” Love, 380 S.W.2d at 592.

 

In Elvir’s only argument on actual control, Elvir argues that Brazos Paving failed to conclusively negate that it exercised actual control.6 Elvir argues that the affidavit of Prewitt, tendered by Brazos Paving in support of the traditional summary judgment grounds, is conclusory and conflicts with his deposition testimony and the testimony of other witnesses. Therefore, according to Elvir, the variances between Prewitt’s affidavit and deposition testimony create a fact issue that precludes the granting of summary judgment.

 

However, Brazos Paving moved for summary judgment on both no evidence and traditional grounds. Under the no evidence summary judgment ground, which we review first, Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004), it was incumbent on Elvir to present some evidence raising a fact issue. See TEX. R. CIV. P. 166a(i) (“The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact.”); Ridgway, 135 S.W.3d at 600. If we find Elvir’s characterization of Prewitt’s affidavit testimony to be conclusory, then it would constitute no evidence, not conflict with Prewitt’s deposition testimony, and not create the fact issue she needs to overcome Brazos Paving’s no evidence challenge. See Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232 (Tex. 2004) (explaining that opinion testimony that is conclusory or speculative is not relevant evidence, because it does not tend to make the existence of a material fact more probable or less probable).

 

As for Prewitt’s deposition testimony, Elvir points to his understanding that HJ & DJ Trucking provided other drivers because it had only one available truck. Elvir also points to the job tickets, Prewitt’s related testimony, referenced in our discussion of contractual control above, and Prewitt’s acknowledgment that the truck Galvan drove was on the road for Brazos Paving’s “benefit.” But, this evidence does not show control that is so persistent, on the part of Brazos Paving, and acquiescence, on the part of HJ & DJ Trucking, JBP Trucking, and Galvan, that is so pronounced as to raise an inference that at the time of the act or omission giving rise to liability, the parties by implied consent and acquiescence had agreed that the Brazos Paving might have the right to control the details of the work. Love, 380 S.W.2d at 592.

 

We conclude that Elvir failed to present legally sufficient evidence that Brazos Paving exercised actual control of HJ & DJ Trucking, JBP Trucking, and Galvan. See Love, 380 S.W.2d at 592.

 

 

1. Statutory Employee

*6 In addition to common law vicarious liability theories, Elvir pleaded that Galvan was Brazos Paving’s statutory employee. Under the federal regulations:

Employee means any individual, other than an employer, who is employed by an employer and who in the course of his or her employment directly affects commercial motor vehicle safety. Such term includes a driver of a commercial motor vehicle (including an independent contractor while in the course of operating a commercial motor vehicle).

49 C.F.R. § 390.5 (2017). Thus, the federal regulations impose various duties on motor carriers who classify their drivers as independent contractors in order to avoid liability for the drivers’ negligence. Gonzalez v. Ramirez, 463 S.W.3d 499, 502 (Tex. 2015) (citations omitted). The federal regulations apply only to transportation in interstate commerce. Id. Texas has adopted many—but not all—parts of the federal regulations, as well as their federal interpretations. Id. at 503. The Texas regulations apply to “commercial motor vehicles” and hold “motor carriers” responsible for their “employees.” Id. (citations omitted). Texas law defines “motor carrier” in pertinent part as “an individual … or other legal entity that controls, operates, or directs the operation of one or more vehicles that transport persons or cargo.” Id. (citations omitted). In a general sense, the federal regulations vitiate the independent contractor doctrine, whereas the Texas regulations largely mirror employer liability. See id.

 

According to Elvir, because Brazos Paving was a licensed motor carrier, employees of all downstream subcontractors must be classified as statutory employees of Brazos Paving under the federal regulations. Brazos Paving posited that Elvir’s “statutory employee” claim was governed under the Texas regulations because JBP Trucking was an intrastate motor carrier and the load of dirt that Galvan was moving did not cross state lines. Brazos Paving further posited that Galvan could not be its statutory employee under the Texas regulations’ definition of a motor carrier because it did not exercise control over the actual transportation of the load. In this sense, Brazos Paving’s no evidence summary judgment ground regarding Elvir’s statutory employee theory mirrored its summary judgment ground regarding Elvir’s other vicarious liability theories. On appeal, Elvir makes two arguments regarding her statutory employee theory.

 

First, Elvir argues that “Brazos Paving’s discussion of Gonzalez omits the critical distinction between that case and this case: here, Brazos Paving expressly retained contractual control, which was not an issue in Gonzalez.” As we read Elvir’s argument, it hinges entirely on our disposition of her contractual control theory, which we have rejected.

 

Second, Elvir contends that the testimony of Jose B. Pachuca, the owner of JBP Trucking, is vague and does not establish that JBP Trucking was only an intrastate motor carrier and the load of dirt Galvan was hauling did not cross state lines. Elvir points to this exchange between her counsel and Pachuca:

1. Okay. So, you are a motor carrier under Texas law operating intrastate, within the State, right?

*7 A. What’s “trust”?

1. Well I said “intrastate,” inside the State. You don’t cross the State lines with your business.
2. Oh, yes, sir.

We do not see the exchange as vague. Pachuca clearly answered, in response to a question by Elvir’s counsel, that he did not cross state lines.

 

We conclude that only the Texas regulations apply and that, as in Elvir’s other vicarious liability theories, she failed to present legally sufficient evidence that Galvan was Brazos Paving’s statutory employee under the Texas regulations.

 

 

1. Negligent Hiring and Selection

“[A]n employer can be held vicariously liable for the actions of an independent contractor if the employer retains some control over the manner in which the contractor performs the work that causes the damage.” Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788, 791 (Tex. 2006).

 

Brazos Paving’s no evidence summary judgment ground as to Elvir’s negligent hiring and selection claims challenged the element of control. Specifically, Brazos Paving asserted that Elvir had no evidence that it controlled the dump truck, which was driven by Galvan and owned by JBP Trucking. Brazos Paving also asserted that Elvir had no evidence that it knew or should have known that Galvan was an incompetent or reckless driver. Before us, Elvir raises four arguments in defense of her claims for negligent hiring and selection.7

 

First, Elvir directs us to Prewitt’s acknowledgment that “it’s important whenever you’re hiring a motor carrier to ensure that they’re a safe motor carrier” and his agreement that it is important that Brazos Paving ensures that the motor carriers that are hired are safe drivers. Elvir contends that “Prewitt’s testimony alone conclusively establishes duty.” But in Texas, “[w]hether a duty exists is a question of law for the court.” United Scaffolding, Inc. v. Levine, No. 15-0921, 2017 WL 2839842, at *6 (Tex. Jun. 30, 2017). Elvir gives us no argument for how we may, as a matter of law, fashion Prewitt’s assertions into any kind of duty on the part of Brazos Paving that would benefit her.

 

Second, Elvir argues that “Prewitt’s testimony concerning duty also is consistent with the duties provided for in Brazos Paving’s Safety Manual.” She then references general statements regarding safety contained in the safety manual. Elvir’s reliance on the safety manual is misplaced. In Dow Chemical Co. v. Bright, 89 S.W.3d 602, 605 (Tex. 2002), an employee of an independent contractor was injured when an improperly secured pipe, installed by another employee of the same independent contractor, fell. The injured employee sued the premises owner and alleged that it exercised actual control by, among other things, providing “safety procedure manuals for all its contractors and contractors’ employees, [the premises owner] exercised control sufficient to give rise to the duty of care owed to [the injured employee].” Id. at 611. The Texas Supreme Court characterized the injured employee’s argument as relying “entirely on the mere existence of the safety regulations to establish actual control.” Id. In upholding the granting of a summary judgment on traditional grounds in favor of the premises owner, the Court held, “[b]ut as we have stated, mere promulgation of safety policies does not establish actual control.” Id. (citing Mendez, 967 S.W.2d at 357–58)). This case is further removed from Bright. In this case, there is no evidence that Brazos Paving promulgated its safety manual to HJ & DJ Trucking, JBP Trucking, and Galvan. Even if Brazos Paving had promulgated the safety manual to HJ & DJ Trucking, JBP Trucking, and Galvan, Elvir would be in the same unavailing place as the injured employee in Bright. Accordingly, the general statements of safety in the safety manual fail to raise a fact issue as to whether Brazos Paving exercised a level of control necessary for Elvir to maintain claims for negligent hiring and selection. See Bright, 89 S.W.3d at 611.

 

*8 Third, Elvir argues that the opinions of Roger Allen, one of her experts, creates a fact issue. According to Elvir, Allen was of the opinion that Brazos Paving was responsible to ensure safe, competent, qualified drivers were operating on the roadway on the date of the accident. But, as we have already explained, whether Brazos Paving owed Elvir a duty is a question of law. Levine, 2017 WL 2839842, at *6. And, like her argument regarding Prewitt’s testimony, Elvir fails to ague how we may, as a matter of law, fashion Allen’s opinions into any kind of duty on the part of Brazos Paving that would benefit her.

 

Fourth, Elvir argues that Brazos Paving had a statutory duty to obtain driver qualification certificates certifying, in part, that the driver is fully qualified to drive a commercial motor vehicle under the rules provided for in the federal regulations. This argument fails because we have rejected Elvir’s reliance on the federal statutory employee rule and concluded that Galvan is not a statutory employee of Brazos Paving.

 

We conclude that Elvir failed to present legally sufficient evidence that Brazos Paving retained control over the manner in which the JBP Trucking or Galvan performed the work that caused the collision. See Ramirez, 196 S.W.3d at 791.

 

 

1. Negligent Entrustment

The elements of negligent entrustment are: (1) entrustment of a vehicle by the owner; (2) to an unlicensed, incompetent, or reckless driver; (3) that the owner knew or should have known to be unlicensed, incompetent, or reckless; (4) that the driver was negligent on the occasion in question; and (5) that the driver’s negligence proximately caused the accident. Williams v. Parker, 472 S.W.3d 467, 472 (Tex. App.–Waco 2015, no pet.) (citing Williams v. Steves Industries, Inc., 699 S.W.2d 570, 571 (Tex. 1985)).

 

Brazos Paving’s no evidence summary judgment ground argued that in order for Elvir to succeed on her negligent entrustment claim, she would have to prove that Brazos Paving was the owner of the dump truck involved and entrusted the truck to Galvan. Brazos Paving further argued that Elvir had no evidence that, among other things, it was the owner or possessor of the dump truck at issue.

 

Elvir does not directly address the ownership or right of control assertion made by Brazos Paving. See Rodriguez v. Sciano, 18 S.W.3d 725, 728 n.6 (Tex. App.–San Antonio 2000, no pet.) (providing that an entrustor “need only have the right of control”). Instead, she directs us to Prewitt’s answer of “Yes,” over the objection of Brazos Paving’s attorney to the question, “You hired all the subs underneath you that worked on that project; is that right?” But, earlier in his deposition, Elvir’s counsel asked, “Well, JBP Trucking. Is that an outfit that you [Brazos Paving] hired?” Prewitt answered, “No.” In Elvir’s reply brief, she argues that Brazos Paving “desperately seeks to avoid Prewitt’s concession that” Brazos Paving hired all the subcontractors underneath it.

 

Elvir’s reliance on the snippet of Prewitt’s testimony, taken from one of his two depositions, to create a fact issue is misplaced. First, it would be an unreasonable inference, see Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 549 (Tex. 1985) (providing that a court reviewing summary judgment evidence must draw all reasonable inferences in favor of the non-movant), to conclude from Prewitt’s answer to a vague and ambiguous question that Brazos Paving hired all downstream subcontractors. The only reasonable inference is that Brazos Paving hired all subcontractors who directly contracted with Brazos Paving. Prewitt’s testimony that Brazos Paving did not “hire” JBP Trucking makes the inference that we have just described reasonable rather than creates a fact issue. Second, even if we concluded that Brazos Paving contracted directly with JBP Trucking, thereby pegging Galvan’s employer as being one subcontractor removed, instead of two, from Brazos Paving, the testimony of Prewitt that Elvir highlights does not create a fact issue as to whether Brazos Paving possessed or controlled the dump truck that he drove the day of the incident.

 

*9 We conclude that Elvir failed to present any evidence as to the first element of a negligent entrustment claim. See Parker, 472 S.W.3d at 472.

 

 

1. Summary

Given our disposition of Elvir’s vicarious liability theories, including her statutory employee theory, and her claims for negligent hiring, selection, and entrustment, we cannot say that the trial court erred in granting summary judgment in Brazos Paving’s favor on its no evidence grounds. Elvir’s first issue is overruled. Because of our disposition of Elvir’s first issue, we need not address Elvir’s second issue, which assails the trial court’s granting of summary judgment in Brazos Paving’s favor on its traditional grounds. Ridgway, 135 S.W.3d at 600; see also TEX. R. APP. P. 47.1

 

 

III. OTHER ISSUES

1. More Relief Granted

In Elvir’s third issue, she complains that the trial court erred by granting Brazos Paving more relief than it requested. Specifically, Elvir contends that Brazos Paving’s summary judgment motion did not challenge her actual agency theory. Instead, Elvir contends that the motion challenged an apparent agency theory that had been pleaded in an earlier petition and swapped out for the actual agency theory. But, as Brazos Paving points out, paragraph 16 of its summary judgment motion asserted:

To establish agency, a party must prove the alleged principal has the rights (1) to assign the agent’s tasks and (2) to control the means and details of the process by which the agent will accomplish that task. It is primarily the extent of the principal’s control over the details of the agent’s accomplishing the assigned task that distinguishes an agent from an independent contractor. [citations omitted].

In paragraph 27 if its motion, Brazos Paving argued:

[b]ecause Brazos Paving did not have a relationship with and did not exercise any control over JBP or Galvan with respect to how they fulfilled their obligations … there is no relationship sufficient to impute vicarious liability upon Brazos Paving.

Elvir dismisses paragraph 27 by arguing “nowhere in that paragraph is the term ‘agency’ even mentioned.” She further argues that “[i]nstead, ‘control’ is repeated eight times, which reflects an emphasis on an issue entirely apart from an express attack on actual agency.”

 

In Nall v. Plunkett, 404 S.W.3d 552, 556 (Tex. 2013), premises owners moved for summary judgment against a plaintiff who had pleaded claims for social-host liability and negligent-undertaking. The “issue addressed” part of the motion stated: “Whether [the premise owners/defendants] have any duty to [plaintiff] in the factual scenario plead by [plaintiff].” Id. The premise owners’ “short answer” was that “Texas does not recognize social host liability, and [the premise owners/defendants] do not have any duty to [plaintiff] in this case.” Id. The plaintiff did not file special exceptions to the premises owners/defendants’ motion. Id. The court of appeals construed the premises owners/defendants’ motion as addressing only the social-host liability claim and not the negligent-undertaking claim. Id. However, the Texas Supreme Court construed the premises owners/defendants’ motion as specifically moving for summary judgment on the duty element of the plaintiff’s negligence claim, making a two-part argument that addressed the absence of a duty in both the social-host context and the undertaking context. Id.

 

*10 The rule articulated in Nall is dispositive. In this case, Brazos Paving advised the trial court of the elements of an actual agency theory, which Elvir does not contest. The elements of actual agency articulated by Brazos Paving included control, an element that pierced through all of Elvir’s vicarious liability theories. Like the broad challenge of duty in Nall, Brazos Paving challenged the control element. See id. And, also like in Nall, Elvir failed to specially except. Id. Elvir also failed to present any evidence of control that would have saved all her vicarious liability theories, including actual agency. Moreover, even if the trial court erred in construing Brazos Paving’s motion as encompassing an actual agency theory, such error would be harmless. See G & H Towing Co. v. Magee, 347 S.W.3d 293, 297–98 (Tex. 2011) (“Although a trial court errs in granting a summary judgment on a cause of action not expressly presented by written motion, we agree that the error is harmless when the omitted cause of action is precluded as a matter of law by other grounds raised in the case.”).

 

Elvir’s third issue is overruled.

 

 

1. Severance

In Elvir’s fourth issue, she complains about the trial court’s order severing the summary judgment granted in favor of Brazos Paving from the claims Elvir asserted against the remaining defendants. Because we have concluded that the trial court did not err in granting a summary judgment in favor of Brazos Paving, a ruling on Elvir’s fourth issue is not necessary for a final disposition. See TEX. R. APP. P. 47.1.

 

 

1. CONCLUSION

The judgment of the trial court is affirmed.

 

All Citations

Not Reported in S.W.3d, 2017 WL 3769015

 

 

Footnotes

1

This appeal was transferred to this Court from the Tenth Court of Appeals by order of the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 22.220(a) (West, Westlaw through 2017 R.S.) (delineating the jurisdiction of appellate courts); id. at § 73.001 (West, Westlaw through 2017 R.S.) (granting the supreme court the authority to transfer cases from one court of appeals to another at any time when there is “good cause” for the transfer).

2

Because this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court’s decision and the basic reasons for it. See TEX. R. APP. P. 47.4.

3

As described in more detail below, Elvir initially pleaded apparent agency, and by an amended petition, she substituted agency for apparent agency.

4

When a party moves for summary judgment on both no evidence grounds, TEX. R. CIV. P. 166a(i), and traditional grounds, id. R. 166a(c), we first review the ruling under the more stringent no evidence standard before analyzing proof under the traditional standard, if necessary. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).

5

A common element running through all of Elvir’s vicarious liability theories is control. All of Elvir’s vicarious liability theories required some evidence that Brazos Paving controlled JBP Trucking and Galvan:

(1) non-employee mission liability, see St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 537 (Tex. 2002) (noting that non-employee mission liability is a form of “respondeat superior liability outside the employment context” under which the key elements are “(1) benefit to the defendant and (2) right of control”); see also Omega Contracting, Inc. v. Torres, 191 S.W.3d 828, 848 (Tex. App.–Fort Worth 2006, no pet.) (en banc) (noting that the threshold issue for nonemployee mission liability is control and holding that the alleged principal “conclusively negated the essential element of its alleged right to control” the agent);

(2) borrowed employee, see Wolff, 94 S.W.3d at 542 (providing that “it is the shift of the right to direct and control the details of the work that transforms a general employee of one employer into a borrowed employee of another, rendering the new employer vicariously liable for the borrowed employee’s actions”);

(3) respondeat superior, see Baptist Mem’l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947 (Tex. 1998) (“The most frequently proffered justification for imposing [respondeat superior] liability is that the principal or employer has the right to control the means and methods of the agent or employee’s work.”);

(4) agency, see Reliant Energy Services, Inc. v. Cotton Valley Compression, L.L.C., 336 S.W.3d 764, 783 (Tex. App.–Houston [1st Dist.] 2011, no pet.) (“Authorization to act and control of the action are the two essential elements of agency.”); Gonzales v. Am. Title Co., 104 S.W.3d 588, 593 (Tex. App.–Houston [1st Dist.] 2003, pet. denied) (detailing the same elements as Reliant Energy );

(5) statutory employee, compare Gonzalez v. Ramirez, 463 S.W.3d 499, 503 (Tex. 2015) (noting that Texas has not adopted Part 376 of the Federal Motor Carrier Safety Regulations, and as such, it has not adopted the definition of statutory employee), with 49 C.F.R. § 390.5 (“Employee means any individual, other than an employer, who is employed by an employer and who in the course of his or her employment directly affects commercial motor vehicle safety. Such term includes a driver of a commercial motor vehicle (including an independent contractor while in the course of operating a commercial motor vehicle), a mechanic, and a freight handler.”);

(6) partnership, see Ingram v. Deere, 288 S.W.3d 886, 894 (Tex. 2009) (providing that the common law test to determine the formation of a partnership are intent to form a partnership, a community of interest in the venture, an agreement to share profits, an agreement to share losses, and a mutual right of control or management of the enterprise.);

(7) joint venture, see First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 225 (Tex. 2017) (providing that the elements of a joint venture are an express or implied agreement to engage in a joint venture, a community of interest in the venture, an agreement to share profits and losses from the enterprise, and a mutual right of control or management of the enterprise); and

(8) joint enterprise, see Hicks v. Group & Pension Administrators, Inc., 473 S.W.3d 518, 533 (Tex. App.–Corpus Christi 2015, no pet.) (providing that the elements of a joint enterprise are an agreement (express or implied) among the members of the group, a common purpose to be carried out by the group, a community of pecuniary interest among the members in that common purpose, and an equal right to direct and control the enterprise.).

6

Elvir’s brief fails to specify who Brazos Paving allegedly actually controlled.

7

In Brazos Paving’s summary judgment motion, it challenged Elvir’s pleaded allegation that HJ & DJ Trucking was Brazos Paving’s broker by arguing that a broker receives a commission and is regarded as an agent employed to make or negotiate a bargain or contractor. As support for its argument, Brazos Paving referenced F.D.I.C. v. Golden Imports, 859 S.W.2d 635, 643 (Tex. App—Houston [1st Dist.] 1993, no writ) and Williams v. Jennings, 755 S.W.2d 874, 883 (Tex. App.–Houston [1st Dist.] 1988, writ denied). Brazos Paving asserted that Elvir had no evidence that HJ & DJ Trucking received a commission and was regarded as an agent. In the trial court, Elvir did not respond to Brazos Paving’s challenge. Furthermore, she makes no mention of broker liability before us.