Opinion

Opinion issued May 12, 2011

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-09-00593-CV

———————————

Luci Martinez, Individually and as Representative of the Estate of

Luis Martinez, Jos é Martinez,

and Maria Martinez ,

Appellants

V.

Hays

Construction, Inc. ,

Appellee

On Appeal from the 190th District Court

Harris County, Texas

Trial Court Case No. 2006-37379

O P I N I O N

Appellants,

Luci Martinez, individually and as representative of the estate of Luis

Martinez, Jos é Martinez, and Maria

Martinez (collectively, “Martinez”), sued Hays Construction, Inc. (“Hays

Construction”), alleging claims for negligent hiring, negligence per se, and

vicarious liability under the Texas Motor Carrier Safety Regulations arising

out of a fatal traffic accident between Luis Martinez and Delfino Bello. The trial court rendered summary judgment in

favor of Hays Construction on all of Martinez’s claims. In four issues on appeal, Martinez contends

that the trial court erred in (1) rendering summary judgment on her negligent

hiring claim because fact issues exist regarding Hays Construction’s employment

of “unqualified and incompetent independent contractors,” namely Delfino Bello

and Moises Melendez; (2) applying the Texas Motor Carrier Safety

Regulations, which impose statutory vicarious liability on Hays Construction for

Delfino’s negligence; (3) rendering summary judgment on Martinez’s other

negligence-based and punitive damages claims because Hays Construction did not

present these grounds for summary judgment to the trial court; and

(4) admitting the affidavit of Philip Hays (“Hays”), president of Hays

Construction, as summary judgment evidence.

We

reverse the judgment of the trial court and remand the case for further

proceedings.

Background

In

2006, Hays Construction contracted with the Harris County Flood Control District

to perform excavation work on Braes Bayou in Houston. As part of this contract, Hays entered into a

“Material Disposal Agreement” with Sprint Sand & Clay L.P. (“Sprint”) to

provide a location for the dirt excavated and removed from the Braes Bayou worksite. Hays Construction does not perform its own

hauling services, so it contracted with third parties, including Anderson Dump

Trucking, Inc. and Moises Melendez, to remove the excavated dirt from the

worksite and deliver it to Sprint. [1]

According

to Philip Hays, the president of Hays Construction, Hays Construction contacted

Anderson, Melendez, and other “truck brokers” and asked them to quote the cost

of hauling materials from the worksite to Sprint. After the hauling companies provided an

acceptable cost-per-load, Hays Construction contacted the companies each day

and requested their services based on the amount of materials that Hays Construction

needed removed from the site. Hays Construction

asked each company to haul loads from the Braes Bayou site and contact other

drivers and trucking companies who could also perform hauling services.

Jessie Frantz, the project manager for

the Braes Bayou excavation, met with Melendez and asked him to haul dirt in his

dump truck. Melendez provided proof of

insurance, but he did not remember completing official paperwork regarding his

employment and driving history. In his

deposition, Melendez testified that Frantz told him that, if he knew other

truckers, Melendez could inform them of the hauling opportunities on the Braes

Bayou project. Frantz did not ask

Melendez to provide Hays Construction a list of the drivers he had contacted or

information regarding their qualifications to drive dump trucks. Melendez contacted a friend of his, Marcos

Benitez, who informed Salvador Bello, the owner and sole proprietor of Bello

Transportation, of the hauling work at the Braes Bayou site. Melendez testified that he did not hire

Salvador or Bello Transportation, although Melendez told him the details of the

project when Salvador inquired.

According to Melendez, the truckers

would line up at the Braes Bayou worksite.

A Hays Construction employee would ask for their drivers’ licenses and

proof that Hays Construction had been added to their insurance as an additional

insured. Hays Construction also provided

hauling permits. A Hays Construction employee

would then load the dump trucks with dirt at the worksite, and the drivers would

deliver the dirt to Sprint. Melendez

testified that the individual drivers had no control over how much dirt was

loaded into their dump trucks, and the drivers could not request removal of

dirt if they felt that the truck was overloaded. After the dirt was delivered, a Sprint

employee would give the driver a receipt stating that the driver had completed

one haul. Salvador Bello gave his

receipts to Melendez and Melendez gave his and Salvador’s receipts to Hays

Construction. Hays Construction paid

Melendez the agreed cost-per-load amount, and Melendez then paid Salvador the

amount corresponding to the number of hauling trips that Salvador

completed. Melendez stated that he was

not responsible for Salvador’s work, and he presented Salvador’s hauling

tickets to Hays Construction because Salvador “didn’t do a lot of trips.” For each receipt that Salvador gave to

Melendez, Melendez kept $2.00 of the payment from Hays Construction. Melendez paid Salvador with a personal check. The same procedure was followed with Delfino.

Salvador testified in his deposition

that he worked with Melendez on the project for two days. Salvador, who was not sure of the name of the

company that had hired Melendez, told his brother, Delfino, about the details

of the job. Salvador did not consider

Delfino to be an employee of Bello Transportation, although Delfino testified

that he had worked for Bello Transportation for about two or three months and that

Salvador paid him approximately $100 a week in cash for his services. Delfino testified that he did not look for

hauling work on his own, but instead only took the jobs that Salvador instructed

him to take.

Delfino hauled dirt from the Braes

Bayou site for two days without incident.

On his third hauling trip on the morning of his third day of working,

Delfino collided with Luis Martinez’s car en route to Sprint from the Braes

Bayou worksite. Luis died from his

injuries, and his family and estate initially sued Delfino, Salvador,

Salvador’s wife Maria, and Bello Transportation (collectively, the “Bello

defendants”).

In her sixth amended petition, which

alleged causes of action against Melendez and Hays Construction in addition to

the Bello defendants, Martinez alleged that, at the time of the accident,

Delfino was involved in the “course and scope of [his] employment [with] Bello

Transportation, Hays Construction, Inc., and Mr. Moises Melendez.” Martinez contended that the defendants were

negligent per se by violating sections 544.007, 545.151, and 545.413 of the Texas

Transportation Code, sections 19.04 and 19.05 of the Texas Penal Code, and “the

applicable provisions of the Federal Motor Carrier Safety Regulations as

adopted by the Texas Department of Public Safety.” Martinez alleged that Hays Construction was

the “statutory employer” of Melendez and the Bello defendants pursuant to

section 390.5 of the Federal Motor Carrier Safety Regulations (“FMCSR”), and

thus Hays Construction was vicariously liable for their negligence. Martinez also asserted a claim of negligent

hiring, training, control, and supervision against Hays Construction regarding

Melendez and the Bello defendants, because Hays Construction “knew or should

have known that Moises Melendez and the Bello defendants were not skilled, fit,

qualified, or competent to operate the dump truck involved in this case.” Martinez further alleged that Hays Construction

was “directly negligent” for attempting to delegate the non-delegable duty to

avoid harm to members of the public. Martinez

sought exemplary damages in addition to actual damages. [2]

Hays Construction moved for

traditional and no-evidence summary judgment on each of Martinez’s claims

against it. [3] It contended that all of Martinez’s

negligence-based claims failed because no employer-employee relationship

existed between itself and Delfino. According

to Philip Hays, Hays Construction never employed Delfino in any capacity,

either as an employee or an independent contractor, and it never had any

contact with Delfino. Instead,

“[w]ithout relation to Hays [Construction] and without Hays [Construction’s]

knowledge, Melendez recruited, solicited or involved Delfino Bello of Bello

Transportation to assist” Melendez in hauling dirt from the worksite. Hays averred that Hays Construction did not

“select, control[,] or direct” the drivers that Melendez and Anderson Dump

Trucking provided, and it did not provide dump trucks or take possession and

control over the trucks used to haul dirt.

Hays Construction “lacked the ability to hire or fire the drivers of the

Bello Transportation truck”; it did not provide any benefits to the truck

drivers; it did not control “the drivers’ route, timing, driving skills or

training”; it did not include Melendez or any of the drivers on its workers’

compensation insurance; and it did not directly pay any of the drivers. Hays denied that any relationship existed

between Hays Construction and Delfino.

Hays Construction also contended that

summary judgment was proper on Martinez’s negligence claims because the trial

court had already granted Melendez’s summary judgment motion, ruling as a

matter of law that he was not negligent, and Melendez “was the only link between

Hays [Construction] and Bello.” Hays Construction

additionally asserted that imputing vicarious liability to it on the basis of

the alleged independent contractor status of Melendez and Delfino was improper

because Hays Construction did not assert any control over Bello Transportation

or Delfino at the time of the accident.

Hays Construction further argued that

summary judgment was proper under the FMCSR and its Texas counterpart because it

was not the statutory employer of Melendez or the Bello defendants. Hays Construction denied that it was a “motor

carrier” under the FMCSR because it did not provide “commercial motor vehicle

transportation for compensation” and, therefore, the FMCSR did not apply. Hays Construction also contended that, even if

the FMCSR did apply, it was not a statutory employer because it did not own or

lease the dump truck driven by Delfino, nor did it assign an employee to

operate the truck.

Hays Construction also moved for

summary judgment on Martinez’s negligence per se claims, contending that

Martinez could not establish that it had violated any of the statutes

identified in her petition.

Specifically, because Hays Construction did not operate the truck or

control Delfino, it did not violate the Transportation Code sections. Hays Construction asserted that it did not

violate the alleged sections of the Penal Code because it did not employ or

control Delfino. Hays Construction further

contended that Martinez’s claim for punitive damages failed because Martinez

could not recover as a matter of law on the causes of action underlying the

request for punitive damages: negligence

and negligence per se.

Hays Construction also moved for

no-evidence summary judgment. It

contended that Martinez could produce no evidence that it owed a legal duty to

Martinez, that either Delfino or Melendez was an employee of Hays Construction,

that Hays Construction retained control over Delfino and Melendez, that Hays Construction

was a motor carrier or statutory employer under the FMCSR, that it was

vicariously liable under the FMCSR, or that it breached any legal duty that it

may have owed to Martinez. Regarding the

negligence per se claim, Hays Construction identified each element of the claim

and stated that Martinez could produce no supporting evidence.

In response, Martinez moved to strike

the affidavit of Philip Hays on the ground that he did not have personal

knowledge of the facts stated in the affidavit.

The deposition testimony of both Hays and Melendez demonstrated that

Jessie Frantz, Hays Construction’s project manager for the Bares Bayou site,

hired Melendez and that Philip Hays himself never spoke with Melendez. Martinez therefore contended that “Mr. Hays’

information is likely based on information told to him by Jessie Frantz, who

has not been deposed,” and thus all of the facts included in his affidavit were

“based on hearsay and speculation.”

Martinez also attached excerpts from

the depositions of Hays and Melendez, and contended that contradictions between

their testimony “creat[ed] fact issues that defeat summary judgment.” For example, Hays testified that Hays

Construction hired Melendez “as a truck broker,” but Melendez testified that he

was hired as a driver and not a broker. Hays

also testified that Melendez hired Bello Transportation, but Melendez testified

that, although he called a friend about the project and informed Salvador of

the details of the project, he did not actually hire anyone. Martinez acknowledged the conflicting

testimony regarding who hired Delfino and argued that, although Hays claimed

Melendez hired Delfino, Melendez stated that he did not hire Delfino, and

Delfino was not sure who hired him, ultimately, “this was Hays [Construction’s]

project and they controlled who was hired and who was fired.” Martinez contended that a fact issue existed

regarding whether Hays Construction hired Delfino and stated that, “there is no

doubt that Hays Construction was responsible for the persons employed on its

project.”

Martinez further contended that a fact

issue existed on hiring and control because Hays Construction had the ultimate

responsibility of removing dirt from the bayou; it told “truck brokers” like

Melendez to tell other truck drivers about the hauling opportunities on its

project; it controlled the loading of the dump trucks at the Braes Bayou site;

its employees actually loaded the dump trucks; it checked the truck drivers’ proof

of insurance and licenses; it obtained the hauling permits for the dirt; it

received compensation from the Harris County Flood Control District for hauling

the dirt; it determined the ultimate location for unloading the dirt; and it controlled

who was hired and fired from the project.

Martinez argued that a fact issue

existed regarding whether Hays Construction negligently hired Melendez as a

“truck broker” because it did not perform a background check on Melendez, it

did not inquire into his qualifications or experience, and it did not require

Melendez to fill out an employment application.

Melendez and Delfino both admitted in their deposition testimony that

they were not familiar with the Texas and federal motor carrier rules. As a result, according to Martinez, Hays Construction

was clearly “responsible for the hiring of unqualified persons to fulfill the

duties that [Hays Construction was] ultimately responsible for.”

Martinez disputed Hays Construction’s

contention that it was not a “motor carrier” and argued that “[i]t is absurd to

think that Hays [Construction] is not a motor carrier when it clearly enters

into multi-million dollar contracts with the

County . . . that specifically require that [it] remove,

haul, and transport material for compensation.”

Martinez also argued that Hays Construction was a “statutory employer”

because it assigned employees, such as Melendez, “to operate its business and

to assist in the hauling of the dirt, which was ultimately Hays

[Construction’s] responsibility.”

The trial court overruled Martinez’s

objections to Hays Construction’s summary judgment evidence and rendered

summary judgment in favor of Hays Construction on all of the claims asserted

against it.

Standard of Review

We

review de novo the trial court’s ruling on a summary judgment motion. Mann

Frankfort Stein & Lipp Advisors, Inc. v. Fielding , 289 S.W.3d 844, 848

(Tex. 2009). When a party moves for both

traditional and no-evidence summary judgment, and our determination of the

no-evidence summary judgment could make the grounds asserted in the traditional

motion moot, we first review the trial court’s ruling under the no-evidence

standard of review. Ford Motor Co. v. Ridgway , 135 S.W.3d 598, 600 (Tex. 2004). If the trial court properly granted the

no-evidence motion, we do not consider the arguments raised regarding the

traditional summary judgment motion. Id.

After

an adequate time for discovery, a party may move for no-evidence summary

judgment on the ground that no evidence exists of one or more essential

elements of a claim on which the adverse party bears the burden of proof at

trial. Tex.

R. Civ. P. 166a(i); Flameout

Design & Fabrication, Inc. v. Pennzoil Caspian Corp. , 994 S.W.2d 830,

834 (Tex. App.—Houston [1st Dist.] 1999, no pet.). The burden then shifts to the nonmovant to

produce evidence raising a genuine issue of material fact on the elements

specified in the motion. Tex. R. Civ. P. 166a(i); Mack Trucks, Inc. v. Tamez , 206 S.W.3d

572, 582 (Tex. 2006). The trial court

must grant the motion unless the nonmovant presents more than a scintilla of

evidence raising a fact issue on the challenged elements. Flameout

Design & Fabrication , 994 S.W.2d at 834 ; see also Merrell Dow Pharms., Inc. v. Havner , 953 S.W.2d 706, 711

(Tex. 1997) (“More than a scintilla of evidence exists when the evidence

supporting the finding, as a whole, ‘rises to a level that would enable

reasonable and fair-minded people to differ in their conclusions.’” (quoting Burroughs Wellcome Co. v. Crye , 907

S.W.2d 497, 499 (Tex. 1995))). To

determine if the nonmovant has raised a fact issue, we review the evidence in

the light most favorable to the nonmovant, crediting favorable evidence if

reasonable jurors could do so, and disregarding contrary evidence unless

reasonable jurors could not. See Fielding , 289 S.W.3d at 848 (citing City of Keller v. Wilson , 168 S.W.3d

802, 827 (Tex. 2005)). We indulge every

reasonable inference and resolve any doubts in the nonmovant’s favor. Sw.

Elec. Power Co. v. Grant , 73 S.W.3d 211, 215 (Tex. 2002) (citing Sci. Spectrum, Inc. v. Martinez , 941

S.W.2d 910, 911 (Tex. 1997)).

To

prevail on a traditional summary judgment motion, the movant must establish

that no genuine issues of material fact exist and that it is entitled to

judgment as a matter of law. Tex. R. Civ. P. 166a(c). When, as here, the trial court’s summary

judgment does not state the basis for the court’s decision, we must uphold the

judgment if any of the theories advanced in the motion are meritorious. Provident

Life & Accident Ins. Co. v. Knott , 128 S.W.3d 211, 216 (Tex. 2003).

Admission of Philip Hays’s Affidavit

In

her fourth issue, Martinez contends that the trial court erred in overruling

her motion to strike Philip Hays’s summary judgment affidavit because the

affidavit was not based on personal knowledge and because Hays’s affidavit

testimony was contradicted by Melendez’s deposition testimony and by this

Court’s opinion in Melendez . We address this issue before addressing the

merits of the summary judgment.

We

review a trial court’s decision to admit or exclude summary judgment evidence

for an abuse of discretion. Paciwest, Inc. v. Warner Alan Props., LLC ,

266 S.W.3d 559, 567 (Tex. App.—Fort Worth 2008, pet. denied). A trial court abuses its discretion if it

acts without reference to any guiding rules or principles. Carpenter

v. Cimarron Hydrocarbons Corp. , 98 S.W.3d 682, 687 (Tex. 2002). We must uphold the trial court’s ruling if

there is any legitimate basis in the record to support it. Owens-Corning

Fiberglas Corp. v. Malone , 972 S.W.2d 35, 43 (Tex. 1998). We will not reverse a trial court for an

erroneous evidentiary ruling unless the error probably caused the rendition of

an improper judgment. See Tex.

R. App. P. 44.1(a)(1); Wal-Mart

Stores, Inc. v. Johnson , 106 S.W.3d 718, 723 (Tex. 2003).

Affidavits

supporting a summary judgment motion “shall be made on personal knowledge,

shall set forth such facts as would be admissible in evidence, and shall show

affirmatively that the affiant is competent to testify to the matters stated

therein.” Tex. R. Civ. P. 166a(f).

A corporate officer may testify to facts regarding corporate

activities. See Exito Elecs. Co. v. Trejo , 99 S.W.3d 360, 372 (Tex. App.—Corpus

Christi 2003) (“[W]ith regard to the personal knowledge of corporate

representatives, officers such as vice-presidents, secretaries, and board

presidents may testify to facts regarding the corporation’s activities.”), rev’d on other grounds , 142 S.W.3d 302 (Tex. 2004); see also Waite v. BancTexas-Houston, N.A. ,

792 S.W.2d 538, 540 (Tex. App.—Houston [1st Dist.] 1990, no writ) (holding

summary judgment affidavit admissible, even though officer not employed with

bank at time of relevant events, because officer able to gain knowledge of

facts testified to during employment and officer’s statement of current

position demonstrated how he gained personal knowledge of particular

sale). Even if an affiant later explains

that his affidavit testimony was based on his review of corporate business

records, the affiant’s “acknowledgement of the sources from which he gathered

his knowledge does not violate the personal knowledge requirement.” In re

E.I. DuPont de Nemours & Co. , 136 S.W.3d 218, 224 (Tex. 2004); Asshauer v. Glimcher Realty Trust , 228

S.W.3d 922, 926 (Tex. App.—Dallas 2007, no pet.).

Here,

Philip Hays is the president of Hays Construction. Although Hays acknowledged in his deposition

that he did not meet with Melendez before the company hired him to work on the

Braes Bayou project, it is not unreasonable to assume that Jessie Frantz, the

project manager for Hays Construction who hired Melendez, informed Hays of

their meeting and the circumstances in which Frantz hired Melendez before Hays

made his affidavit for this case. The

mere fact that Hays did not personally hire Melendez or involve himself in the

day-to-day operation of Hays Construction’s Braes Bayou project, but instead

gathered his knowledge about the project from other corporate sources at Hays

Construction for the purpose of completing his affidavit, does not violate the

personal knowledge requirement. See In re DuPont , 136 S.W.3d at 224 .

On

appeal, Martinez argues that the trial court should have struck Hays’s

affidavit because, although Hays averred that Melendez recruited Bello

Transportation, Hays testified in his deposition that Melendez was a “truck

broker” responsible for hauling and arranging for hauling of the dirt. Furthermore, Melendez disputed this fact in

his deposition, and this Court agreed with Melendez by finding that Melendez

was a “referring driver” and not a “truck broker.”

In Melendez , however, we discounted the

relevance of the “truck broker” and “referring driver” distinction, and noted

that, in determining Melendez’s liability, the issue was whether Melendez

exercised control over the details of Delfino’s work, and not how Hays Construction

labeled the relationship between the parties.

Martinez v. Melendez , No.

01-08-00850-CV, 2009 WL 4357794 , at *3 (Tex. App.—Houston [1st Dist.] Dec. 3,

2009, pet. denied) (mem. op.).

Furthermore, Martinez provides no authority for why the contradiction

between the testimony of Melendez and Philip Hays over what, precisely, Hays Construction

hired Melendez to do and the particular label to be applied to Melendez

constitutes a basis for striking Philip Hays’s affidavit as summary judgment

evidence. We therefore hold that

Martinez has failed to demonstrate that the trial court abused its discretion

in admitting Hays’s affidavit.

We

overrule Martinez’s fourth issue.

Negligent Hiring

In

her first issue, Martinez contends that the trial court erred in rendering

summary judgment in favor of Hays Construction because fact issues exist

regarding whether it negligently hired “unqualified and incompetent independent

contractors.”

The sole argument Hays Construction

made in its summary judgment motion on the issue of negligent hiring was that

it could not be liable for any of Martinez’s negligence-based claims because no

relationship existed between Hays Construction and Delfino — Hays Construction never hired Delfino either as

an employee or as an independent contractor.

Therefore, it had no legal duty to protect Luis Martinez from Delfino’s

actions. On appeal, Martinez argues that

she raised a fact issue regarding who hired Delfino because “Hays Construction

claims Mr. Melendez hired Mr. [Delfino] Bello.

Mr. Melendez states that he did not hire Mr. [Delfino] Bello. Mr. Bello states that he is not sure who

hired him.” In first issue on appeal,

Martinez also contends, as she did below, that, in addition to negligently

hiring Delfino as a driver, Hays Construction negligently hired Melendez to act

as a “truck broker” because Melendez was not qualified to act in this capacity.

To successfully prosecute a

claim of negligent hiring, Martinez must demonstrate that (1) Hays Construction

owed a legal duty to protect Luis Martinez from Delfino’s or Melendez’s actions

and (2) Luis sustained damages proximately caused by Hays Construction’s breach

of that legal duty. See Thomas v. CNC Invs., L.L.P. , 234 S.W.3d 111, 123 (Tex.

App.—Houston [1st Dist.] 2007, no pet.); see

also TXI Transp. Co. v. Hughes , 306 S.W.3d 230, 240 (Tex. 2010) (“In a

negligent-hiring or negligent-entrustment claim, a plaintiff must show that the

risk that caused the entrustment or hiring to be negligent also proximately

caused plaintiff’s injuries.”).

The duty of the employer extends

only to prevent the employee or independent contractor from causing physical

harm to a third party. Wrenn v. G.A.T.X. Logistics, Inc. , 73

S.W.3d 489, 496 (Tex. App.—Fort Worth 2002, no pet.); see also Mireles v. Ashley , 201 S.W.3d 779, 782 (Tex. App.—Amarillo

2006, no pet.) (applying negligent hiring principles to independent contractor

and stating that employer must use ordinary care in hiring contractor). The employer owes a duty to the general

public to ascertain the qualifications and competence of the employees and

independent contractors it hires, “especially when the employees are engaged in

occupations that require skill or experience and that could be hazardous to the

safety of others.” Morris v. JTM Materials, Inc. , 78 S.W.3d 28, 49 (Tex. App.—Fort

Worth 2002, no pet.). Thus, an employer

is liable for negligent hiring if it “hires an incompetent or unfit employee

whom it knows, or by the exercise of reasonable care should have known, was

incompetent or unfit, thereby creating an unreasonable risk of harm to

others.” Id.

The plaintiff must demonstrate that

the employer’s hiring of the allegedly incompetent employee or independent

contractor proximately caused the plaintiff’s injuries. See

Thomas , 234 S.W.3d at 123 ; Morris ,

78 S.W.3d at 49 . The proximate cause

element of a negligent hiring claim consists of cause in fact and

foreseeability. Thomas , 234 S.W.3d at 123 (citing Doe v. Boys Clubs of Greater Dallas, Inc. , 907 S.W.2d 472, 477

(Tex. 1995)). A plaintiff establishes

cause in fact if she demonstrates that the negligent act or omission was a

substantial factor in bringing about the injury, without which the harm would

not have occurred. Id. (citing Prudential Ins.

Co. v. Jefferson Assocs., Ltd. , 896 S.W.2d 156, 161 (Tex. 1995)). Cause in fact is not shown if the defendant’s

negligence did no more than furnish a condition which made the injury

possible. Doe , 907 S.W.2d at 477 .

If the performance of the

employment contract requires driving a vehicle, the employer has an affirmative

duty to investigate the employee or independent contractor’s competency to

drive. Mireles , 201 S.W.3d at 782–83; Morris ,

78 S.W.3d at 49 . An employer is not

negligent when there is nothing in the employee’s background that would cause a

reasonable employer not to hire or retain the employee. Dangerfield

v. Ormsby , 264 S.W.3d 904, 912 (Tex. App.—Fort Worth 2008, no pet.); Ogg v. Dillard’s, Inc. , 239 S.W.3d 409,

421 (Tex. App.—Dallas 2007, pet. denied); see

also Mireles , 201 S.W.3d at 783 (“However, Ashley could not know that West

was an incompetent driver unless West was, in fact, an incompetent driver.”); Wasson v. Stracener , 786 S.W.2d 414, 422

(Tex. App.—Texarkana 1990, writ denied) (“Even if Stracener were found to have

been negligent in his manner of selecting Freeman, [failure to check Freeman’s

driving record] would not create liability unless there was also evidence that

Freeman was incompetent.”).

A.

Hays Construction’s Negligent Hiring

of Melendez

In one sub-issue, Martinez argues

that she raised a fact issue on Hays Construction’s negligent hiring of

Melendez as a broker to find drivers to haul dirt from its Braes Bayou worksite. Hays Construction argued in its summary

judgment motion, and argues in response to Martinez’s sub-issue on appeal,

that, without its knowledge, Melendez “recruited, solicited, or involved”

Delfino to assist him in hauling dirt from the worksite and that it did not

“select, control[,] or direct” the drivers Melendez provided for the site. Therefore, as Melendez “was the only link

between Hays [Construction] and Bello,” Hays Construction’s hiring of Melendez

could not have proximately caused Martinez’s death.

In our previous opinion in Melendez , we affirmed the trial court’s

summary judgment dismissing Martinez’s wrongful death negligence claims against

Melendez. Melendez , 2009 WL 4357794 , at *4.

We observed in that opinion that, at the time of the accident, Melendez

“worked at the Hays [Construction] site[] hauling dirt in his own truck.” Id .

at *1. We stated:

According to the summary

judgment record, when Hays [Construction] 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 [Construction],

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 [Construction] checks the drivers’ proof

of insurance when they arrive at the work site.

Hays [Construction] 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 [Construction]. Hays [Construction] 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 [Construction] 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 [Construction

Braes Bayou] project. Salvador reported

to the Hays [Construction] site with Melendez and began hauling the dirt. Melendez and Salvador each prepared trip

tickets, which Melendez submitted to Hays [Construction] for payment. After receiving the payment from Hays [Construction],

Melendez wrote a personal check, made payable to Salvador, individually, to

give Salvador his share.

. . . .

One week, after learning of the job from Salvador, Delfino

reported to work at the Hays [Construction Braes Bayou] site.

Melendez , 2009 WL 4357794 , at *1–2.

To successfully maintain a claim

against Hays Construction for negligently hiring Melendez, Martinez would have

to prove that Hays Construction’s negligent hiring of Melendez as a truck

broker proximately caused Martinez’s injuries, i.e., that Martinez’s injuries from

the crash with Delfino were foreseeable from Hays Construction’s negligent

hiring of Melendez and would not have occurred but for that act of negligence. See Thomas , 234 S.W.3d at 123 . We have previously held, however, that

Melendez was not Delfino’s employer. Melendez , 2009 WL 4357794 , at *4. We noted that the summary judgment evidence

reflected that Melendez — who had

spoken with Salvador Bello about the job, had handed in Salvador’s trip

receipts to Hays Construction, and had only had contact with Salvador — was unaware that Delfino Bello was driving the

Bello Transportation truck. Id.

Instead, Salvador had informed Delfino about the work at the Hays Construction

Braes Bayou site, which Salvador had heard about through Melendez. Id. The evidence demonstrated that Melendez had

no control over the details of Delfino’s work and had no authority to hire or

fire Delfino. Id. We concluded that “no

general employer-employee relationship exist[ed]” between Melendez and Delfino

to impose either vicarious liability under a respondeat superior theory or

direct liability under a negligent hiring theory on Melendez as a result of

Delfino’s actions. Id.

In the present suit, Martinez

presented no evidence that Melendez referred Delfino to Hays Construction for

the hauling work.

We conclude, therefore, that

Martinez cannot establish that the decision by Hays Construction to hire

Melendez as a truck broker proximately caused the injuries to Luis

Martinez. We hold that the trial court

correctly rendered summary judgment on Martinez’s claim against Hays Construction

for negligently hiring Melendez as a truck broker.

We overrule this sub-part of Martinez’s

first issue.

B.

Hays Construction’s Negligent Hiring

of Delfino

In a

second sub-issue, Martinez argues, and Hays Construction agrees, that all of

Hays Construction’s arguments in its summary judgment motion regarding Martinez’s

negligence-based claims turn on the non-existence of a duty owed to Martinez by

Hays Construction due to Hays Construction’s not having hired Delfino. Martinez argues that she has raised a fact

issue with respect to Hays Construction’s hiring of Delfino as an independent contractor,

and, therefore, she has raised a fact issue with respect to each of her

negligence-based claims.

Martinez

presented summary judgment evidence that, as part of its contractual

obligations to the Harris County Flood Control District, Hays Construction determined

that the dirt would be removed from the Braes Bayou worksite and taken to

Sprint. Hays Construction bore the

ultimate responsibility for removing the dirt from the worksite, and it

obtained the earth hauling permits necessary for transporting the dirt to

Sprint. According to the deposition

testimony of Philip Hays, the president of Hays Construction, Hays

Construction’s project manager, Jessie Frantz, hired Melendez as a truck broker

to obtain drivers for the worksite.

Melendez stated that Frantz told him that if he knew other truck

drivers, he could inform them that hauling opportunities were available as part

of the project. The parties agreed that truck

drivers would report to the Hays Construction Braes Bayou worksite for work

hauling dirt from the worksite to the Sprint site. Hays Construction employees checked each

driver’s license and proof of insurance before the driver left the worksite to

haul the dirt to Sprint. The parties

also agreed that the drivers were required to list Hays Construction as an

additional insured on their insurance.

Melendez testified that Hays Construction employees loaded each dump

truck at the worksite, and the individual drivers had no control in determining

the amount of dirt loaded into the trucks or in determining the place to which

the dirt was to be delivered — Sprint. Sprint issued receipts upon delivery to it of

dirt from the Hays Construction Braes Bayou worksite. Melendez turned in the Sprint receipts for

Salvador, Delfino, and himself to Hays Construction, and Hays Construction paid

Melendez on a per-load basis. Melendez,

in turn, paid Delfino the amount of money received from Hays Construction for

Delfino’s delivery of each load of dirt to Sprint, minus a $2.00 fee on each

load delivered. Philip Hays, in his

deposition, stated that Hays Construction could fire drivers if they were not completing

their jobs.

Viewing the evidence in the light

most favorable to Martinez, we hold that Martinez raised a fact issue regarding

whether Hays Construction hired Delfino Bello as an independent contractor to

haul dirt from the Hays Construction Braes Bayou worksite to Sprint.

We sustain Martinez’s first issue.

Liability under Texas Motor Carrier Safety Regulations

In

her second issue, Martinez contends that the trial court incorrectly applied

the Texas Motor Carrier Safety Regulations (“TMCSR”) because Hays Construction is

both a “motor carrier” and a “statutory employer” under the TMCSR and,

therefore, is vicariously liable for Delfino’s negligence.

Historically,

interstate motor carriers have attempted to immunize themselves from liability

for negligent drivers by leasing trucks and classifying the drivers as

independent contractors. Sharpless v. Sim , 209 S.W.3d 825, 829

(Tex. App.—Dallas 2006, pet. denied); Morris ,

78 S.W.3d at 37 . In response, Congress

amended the Interstate Common Carrier Act to “require interstate motor carriers

to assume full direction and control of the vehicles that they leased ‘as if

they were the owners of such vehicles.’”

Morris , 78 S.W.3d at 38

(quoting Price v. Westmoreland , 727

F.2d 494 , 495–96 (5th Cir. 1984)). The

goal of the amendments was to “ensure that interstate motor carriers would be

fully responsible for the maintenance and operation of the leased equipment and

the supervision of the borrowed drivers . . . .” Id. To effectuate the purposes of the Interstate

Common Carrier Act, the Interstate Commerce Commission promulgated the Federal

Motor Carrier Safety Regulations (“FMCSR”) which, among other requirements,

impose vicarious liability upon interstate motor carriers for the negligence of

their statutory employee drivers. Id. at 38–39.

The

Texas Department of Public Safety has adopted a majority of the FMCSR. 37 Tex.

Admin. Code § 4.11 (a) (2010) (Tex. Dep’t of Pub. Safety, Gen.

Applicability & Definitions).

Among

the definitions adopted were the definitions of “statutory employer” and

“statutory employee” set out in Rule 390.5 of the FMCSR. The FMCSR define “employer” as “any 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 . . . .”

Federal Motor Carrier Safety Regulations, 49 C.F.R. § 390.5

(2009). An “employee” is “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.” [4] Id. This definition includes an independent

contractor “while in the course of operating a commercial motor vehicle.” Id. ;

see also Consumers Cnty. Mut. Ins. Co. v.

P.W. & Sons Trucking, Inc. , 307 F.3d 362 , 364–66 (5th Cir. 2002) (observing

that Motor Carrier Safety Act eliminated distinction between employees and

independent contractors); Sharpless ,

209 S.W.3d at 830 (rejecting carrier’s argument that driver was not statutory

employee because he was independent contractor). A motor carrier is vicariously liable for the

negligence of its “statutory employee” drivers.

See Morris , 78 S.W.3d at 39 ; Sharpless , 209 S.W.3d at 829 .

In adopting the FMCSR, however, the

Department of Public Safety specified that, instead of using the federal

definition in the FMCSR, as it did in defining “statutory employer,” “the

definition of motor carrier will be the same as that given in Texas

Transportation Code, § 643.001(6) when vehicles operated by the motor

carrier meet the applicability requirements of subsection (c) of this section.” [5] 37 Tex.

Admin. Code § 4.11 (b)(1).

The Transportation Code defines “motor carrier” as “an individual,

association, corporation, or other legal entity that controls, operates, or

directs the operation of one or more vehicles that transport persons or cargo

over a road or highway in this state.” [6] Tex.

Transp. Code Ann. § 643.001(6) (Vernon Supp. 2010).

A.

Hays Construction’s Liability to

Martinez as a Motor Carrier

Hays Construction moved for both

traditional and no-evidence summary judgment on the ground that it does not

qualify as a “motor carrier” under the FMCSR.

It did not argue that it did not qualify as a motor carrier under the

TMCSR. Although it argues on appeal that

it does not meet the Transportation Code definition of “motor carrier,” Hays Construction

did not raise this contention in its summary judgment motion. Because Hays Construction did not move for

summary judgment on this basis, we cannot affirm the trial court’s summary

judgment on the ground that Hays Construction is not a motor carrier pursuant

to the Transportation Code. See Johnson v. Brewer & Pritchard, P.C. ,

73 S.W.3d 193, 204 (Tex. 2002) (citing Sci.

Spectrum, Inc. , 941 S.W.2d at 912 ); see

also Morris , 78 S.W.3d at 39 (holding that, because JTM did not assert in

summary judgment motion that it was not interstate motor carrier, appellate

court could not consider that contention as basis for affirming summary

judgment).

With

respect to its liability to Martinez as a motor carrier under the

Transportation Code, Hays Construction contends that the summary judgment

evidence establishes that it exercised no control over the trucks and their

drivers, and the only way in which it directed the drivers was by telling them

where to deposit the dirt after removing it from the worksite. In his summary judgment affidavit, Philip

Hays stated that Hays Construction’s only involvement in the hauling process

was to “pay[] a per trip fee to haul the material to Sprint Sand &

Clay.” According to Philip Hays,

Anderson Dump Trucking, Melendez, and the other truck brokers provided the

drivers and dump trucks for the project, and the individual drivers “chose the

routes [to Sprint], decided how long to take, how many trips they wanted to

make and the number of hours they wanted to work.” Hays Construction contends that Martinez

presented no evidence that Hays Construction controlled the drivers or directed

the operation of their trucks beyond telling them where to take the dirt removed

from Braes Bayou.

Martinez

contends that Hays Construction qualifies as a motor carrier under the

Transportation Code because it controlled the worksite and was ultimately

responsible for hauling the dirt from Braes Bayou. Hays Construction obtained the hauling

permits and determined the ultimate location for transporting and unloading the

dirt. Hays Construction employees

actually loaded each dump truck, checked each driver’s license and proof of insurance,

and informed each driver where to take the dirt. Hays Construction also indirectly paid the

drivers on a per-load basis.

We conclude that, when viewed in

the light most favorable to Martinez, Martinez’s summary judgment evidence

raises a fact issue on whether Hays Construction is a “legal entity that

controls, operates, or directs the operation of” the dump trucks used to haul

dirt for its Braes Bayou project to Sprint such that it falls within the

definition of “motor carrier” in section 643.001(6) of the Transportation Code.

B.

Hays Construction’s Liability to

Martinez as a “Statutory Employer”

To be

vicariously liable for Delfino’s negligence, however, Hays Construction must

also qualify as Delfino’s “statutory employer” under Rule 390.5 of the FMCSR.

The

summary judgment evidence is undisputed that Salvador Bello owned the dump

truck driven by Delfino at the time of the accident, and Martinez does not

contend that Hays Construction leased the truck from Salvador or from Bello

Transportation. A motor carrier may,

however, still qualify as a statutory employer if it “assigns an employee to

operate” a commercial motor vehicle. See 49 C.F.R. § 390.5 . We have already held that Martinez presented

evidence sufficient to raise a fact issue regarding whether Hays Construction hired

Delfino Bello as an independent contractor.

Under Rule 390.5, an independent contractor “in the course of operating

a commercial motor vehicle” qualifies as an “employee.” 49 C.F.R. § 390.5 . Neither the FMCSR nor case law defines

“assigns.” We therefore apply the

ordinary meaning of the term. Tex. Gov’t Code Ann. § 312.002(a)

(Vernon 2005). “To assign” means to

“appoint as a duty or task.” Merriam-Webster’s Collegiate Dictionary 74 (1 1th

ed. 2003).

Hays Construction

presented evidence that it has no control over the route that truck drivers

take to Sprint and that it plays no role in requiring independent contractor

drivers to operate a particular truck at a particular time. Although an individual driver may decide how

many trips to and from Sprint to complete, Martinez presented evidence that

when a driver makes a trip, the driver reports to Hays Construction’s Braes

Bayou worksite, Hays Construction employees check the driver’s proof of insurance

and license, provide a hauling permit to the driver, load the dump truck, and

inform the driver of the destination:

Sprint. Upon delivery of the load

to Sprint, the driver receives a receipt which he returns to Hays Construction

and for which he is paid by Hays Construction.

We conclude that Martinez has provided

some evidence that Hays Construction assigns drivers the specific task of

operating a dump truck and transporting a load of excavated dirt to Sprint in

the truck. We therefore hold that, when

the evidence is viewed in the light most favorable to Martinez, Martinez has raised

a fact issue regarding whether Hays Construction assigned Delfino Bello to

operate the dump truck involved in the accident, and thus she raised a fact

issue regarding whether Hays Construction qualifies as Delfino’s “statutory

employer” under Rule 390.5.

We hold that the trial court erred

in rendering summary judgment on Martinez’s TMCSR claim.

We note that some Texas courts have

applied a slightly different test to determine statutory employer status. See

John B. Barbour Trucking Co. v. State , 758 S.W.2d 684, 688 (Tex.

App.—Austin 1988, writ denied); see also

Sharpless , 209 S.W.3d at 829 (applying Barbour’s

three-part test to determine statutory employer status); Mata v. Andrews Transp., Inc. , 900 S.W.2d 363, 366 (Tex. App.—Houston

[14th Dist.] 1995, no writ) (same).

Under this “ Barbour ” test, a

carrier is deemed the statutory employer when (1) the carrier does not own the

vehicle, (2) the carrier operated the vehicle under an arrangement with

the owner to provide transportation subject to federal regulations, and (3) the

carrier does not literally employ the driver.

See Barbour , 758 S.W.2d at

688 . Although the Fort Worth Court of

Appeals has not adopted this test, it analyzed the test in Omega Contracting, Inc. v. Torres and held that the word “operated”

in the second element “connotes control and possession” of the vehicle. 191 S.W.3d 828, 849 (Tex. App.—Fort Worth

2006, no pet.). In Sharpless , however, the Dallas Court of Appeals rejected

Southwestern Carriers’ argument that it was not Sharpless’s statutory employer

because it did not actually operate the truck; it held that “under the FMCSR it

is immaterial who physically operates the truck.” 209 S.W.3d at 830 . We agree with the Dallas Court of Appeals and

note that holding that the carrier

must “control or possess” the vehicle in order to meet the “operated” element

of the Barbour test renders the

“assigns an employee to operate [the

vehicle]” option of Rule 390.5’s definition of employer meaningless. See

49 C.F.R. § 390.5 (emphasis added).

Although we need not address whether to adopt the Barbour test as the standard for

determining statutory employer status, we note that Martinez has raised a fact

issue regarding whether Hays Construction meets each element of the test. Martinez presented evidence that: (1) Hays Construction did not own the dump

truck involved in the accident; (2) Hays Construction assigned a statutory

employee, Delfino Bello, to operate the truck under an arrangement with the

owner, Salvador Bello and Bello Transportation, in hauling dirt on its project;

and (3) Hays Construction did not literally employ Delfino. See

Sharpless , 209 S.W.3d at 829–30 (holding Barbour satisfied when Sharpless owned and operated truck and Southwestern,

who obtained relevant hauling permits, “operate[d] its business by contracting

with truck drivers to haul loads,” and thus did not literally employ

Sharpless).

We

sustain Martinez’s second issue.

Because

we hold that the trial court erred in granting summary judgment on Martinez’s

negligent hiring and TMCSR claims, we need not address Martinez’s third issue — whether the trial court granted summary

judgment on grounds not presented in Hays Construction’s summary judgment

motion.

Conclusion

We

reverse the judgment of the trial court and remand the case for further

proceedings.

Evelyn

V. Keyes

Justice

Panel

consists of Justices Keyes, Higley, and Bland.

[1]

Martinez sued Melendez for the

same causes of action asserted against Hays.

In a previous appeal, this Court held that no employer-employee

relationship existed between Melendez and Delfino Bello, and, therefore, the

trial court correctly rendered summary judgment in favor of Melendez on

Martinez’s negligent hiring and Texas Motor Carrier Safety Regulations claims

against him. See Martinez v. Melendez , No. 01-08-00850-CV, 2009 WL 4357794 , at

*4 (Tex. App.—Houston [1st Dist.] Dec. 3, 2009, pet. denied) (mem. op.).

[2]

Martinez also asserted a claim

for joint enterprise liability, which Hays Construction challenged in its

summary judgment motion. Martinez does

not challenge the trial court’s rendition of summary judgment on this claim on

appeal.

[3]

As summary judgment evidence,

Hays Construction attached the affidavit of Philip Hays, excerpts from the

depositions of Delfino and Salvador Bello, and discovery responses from

Melendez.

[4]

To the extent Martinez contends

that Bello Transportation is a “statutory employee” of Hays Construction, we

note that Rule 390.5 specifically defines “employee” as “any individual.” See

Federal Motor Carrier Safety Regulations, 49 C.F.R. § 390.5 (2009). “Employer,” meanwhile, is defined as “any

person,” which is further defined as “any individual, partnership, association,

corporation, business trust, or any other organized group of individuals.” Id. Under a plain reading of Rule 390.5,

therefore, Bello Transportation, a sole proprietorship, cannot be an

employee. See Ill. Bulk Carrier, Inc. v. Jackson , 908 N.E.2d 248 , 255–56

(Ind. Ct. App. 2009); see also Brown v.

Truck Connections Int’l, Inc. , 526 F. Supp. 2d 920, 925 (E.D. Ark. 2007)

(noting language difference between “employee” and “employer” definitions

suggests that “individual” refers to “human beings and not to corporations or

other legal persons”).

[5]

Rule 390.5 of the FMCSR defines

“motor carrier” as “a for-hire motor carrier or a private motor carrier.” 49 C.F.R. § 390.5 (2009). The rule further defines “for-hire motor

carrier” as “a person engaged in the transportation of goods or passengers for

compensation” and defines “private motor carrier” as “a person who provides

transportation of property or passengers, by commercial motor vehicle, and is

not a for-hire motor carrier.” Id.

Martinez does not argue that Hays Construction qualifies as a motor

carrier under the FMCSR — merely

that it qualifies under the Transportation Code definition.

[6]

No case law exists interpreting

this definition of “motor carrier.” The

previous definition, article 911b of the Revised Civil Statutes, defined motor

carrier as any legal entity or person that operates or owns “any

motor-propelled vehicle used in transporting property for compensation or hire

over any public highway in this state . . . .” See

R.R. Comm’n of Tex. v. Waste Mgmt. of Tex., Inc. , 880 S.W.2d 835, 838 (Tex.

App.—Austin 1994, no writ); All Star Van

& Storage v. Admiral Storage & Van, Inc. , 658 S.W.2d 213, 215 (Tex.

App.—El Paso 1983, writ ref’d) (“Under 911b, a motor carrier is one using the

highways between incorporated cities ‘transporting property for compensation or

hire’ — the property

of others.”).