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Alice Leasing Corp. v. Castillo6/27/2001
AFFIRMED
This is an appeal of a judgment entered in a wrongful death and survival action pursuant to a jury verdict. Appellant complains of the failure to submit a jury question on the deceased's status as a borrowed servant and failure to submit a jury instruction on workers' compensation as an exclusive remedy. Appellant also raises issues concerning a release, the legal and factual sufficiency of evidence supporting the jury finding no fault on the part of the settling co- defendant, and the admission of a videotaped experiment. We affirm the trial court's judgment.
Factual and Procedural Background
Alice Leasing Corporation (Alice Leasing) and Heldt Bros. Trucks (Heldt Bros.), who were separate entities engaged in the trucking industry, entered into a management agreement in 1991. Under the terms of this agreement, Alice Leasing assumed the following responsibilities: to supervise, manage and operate the business; day-to-day operation and management of the business; to establish operating policies, standards of operation, standards of service and maintenance, pricing and other policies affecting the business on the day to day operation thereof; to hire, promote, discharge and supervise the work of the employees performing services for the partnership; and to make or install all necessary and proper repairs, replacements, additions and improvements in and to the equipment in order to keep same in good repair. The partnership assumed responsibility for management and supervision of the sales and clerical staff, in other words the inside or office staff, and carried them on the Heldt Bros. payroll. Alice Leasing managed, supervised, and carried the outside or field employees on the Alice Leasing payroll. Heldt Bros. carried workers' compensation insurance on its employees. Alice Leasing was a non-subscriber.
Evaristo Castillo was killed in the course and scope of his employment as a truck driver on January 11, 1994. Whose employee he was on that date continues to be contested on appeal. Castillo worked for Heldt Bros. from 1988 to 1991 as a truck driver, oilfield forklift operator, swamper, welder, and mechanic. He was rehired as a truck driver and forklift operator in 1993, and under the terms of the management agreement was put on the Alice Leasing payroll.
On the day of the accident, Castillo and his co-worker, Jose Buentello, were dispatched with a large gin pole truck, known as Truck 82, to the Alice Police Department to move a large generator. Castillo was the driver and Buentello was the swamper; both were Alice Leasing employees. The dispatcher, an office employee, was on the Heldt Bros. payroll. At the work site, Castillo was operating the winch controls to begin the process of "poling up" or raising the gin poles into position. Castillo was inadequately trained to operate the gin pole truck. The equipment was improperly rigged. Tension in the cables built up to the point that they snapped, causing the block in the bed of the trailer to break. A piece of the block assembly flew through the air and struck Castillo in the head as he looked through the rear window of the cab of the truck. He died instantly.
The Castillo survivors initially sued Heldt Bros. and later added Alice Leasing as a defendant. The Texas Workers' Compensation Insurance Fund (TWCIF) intervened to pursue subrogation for benefits paid to the Castillo survivors pursuant to the Heldt Bros. workers' compensation coverage. In response to TWCIF's requests for admissions, Alice Leasing judicially admitted that it was Castillo's employer and Heldt Bros. was not his employer at the time of the accident. As a result, the trial court granted TWCIF's uncontested motio
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