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Thorn v. Express Services8/17/2000
Geraldine Thorn sued Express Services, Inc., d/b/a Colorado Express Services, Inc., for a repetitive trauma injury she sustained while working as a telemarketer at Muscular Dystrophy Association. The trial court granted the motion for summary judgment filed by Express Services, and Thorn appealed. The sole issue presented on appeal asks, "Did the trial court err in granting summary judgment against plaintiff by finding that Express Services was plaintiff's employer and that suit against defendant was barred?"
Thorn's petition alleged Express Services failed to provide a safe place to work, required Thorn to work in an unsafe manner, required her to work under unsafe conditions, failed to warn her of hazardous conditions, failed to exercise reasonable care in the inspection and maintenance of equipment, and failed to exercise with reasonable care its retained control over her work. Express Services filed a motion for summary judgment, alleging the exclusive remedy provisions of the Texas Labor Code precluded Thorn's suit for negligence because at the time of her injury Thorn was the employee of Express Services and covered by its policy of workers compensation insurance. See Tex. Lab. Code Ann. § 408.001 (Vernon 1996).
In support of its motion for summary judgment, Express Services submitted Thorn's employment application with Express Personnel Services and a Policies and Procedures Statement, signed by Thorn, that included the statements, "I understand and agree that as an Express associate assigned to a client organization, I am the employee of Express Personnel Services and not the client" and "I understand that I am subject to discharge only by Express and not a client company and that the completion of an assignment or release by a client, even for failure to meet performance standards, is not a termination of employment with Express Personnel Services." Express Services produced its payroll checks to Thorn. Express Services also submitted its workers' compensation insurance policy, the employer's First Report of Injury on Thorn's injury filed by Express Personnel - Beaumont, the decision of the Texas Workers' Compensation Commission (denying Thorn's workers' compensation claim against Express Services's insurer, on the grounds that Thorn failed to establish that she sustained the compensable injury alleged), and the decision of the Workers' Compensation Commission appeals panel (affirming the decision of the hearing officer, stating the hearing officer "resolved the disputed issues by finding that the appellant's [claimant] job duties with Express Services, Inc. [employer] did not cause her to sustain an injury. . . .") The motion for summary judgment also included Thorn's petition, filed in the 136th District Court, against the Insurance Company of The State of Pennsylvania, which stated, "your plaintiff was on the payroll of Express Services, Inc., performing work at the direction of its client Muscular Dystrophy Association, which employer had at all times been issued a policy of Texas Workers' Compensation Insurance by defendant which covered your plaintiff against industrial accidental injuries and injury to her body while in the course of her employment for said employer. . . ."
For purposes of the Texas Workers' Compensation Act, an "employer" is one who "makes a contract of hire, employs one or more employees, and has workers' compensation insurance coverage." Tex. Lab. Code Ann. § 401.011(18) (Vernon Supp. 2000). Thorn argues Express Services is not her "employer" because Muscular Dystrophy Association controlled the details of the particular work in which she was engaged at the time of her injury, making Thorn the "borrowed employee" of MDA. See Exxon Corp. v
Page 1 2 Texas Employee Leasing Services
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