Manuel Valadez v. MEMC Pasadena, Inc., DBA MEMC Electronic Materials Pasadena Inc.

Opinion issued March 3, 2011

In

The

Court

of Appeals

For

The

First

District of Texas

————————————

NO. 01-09-00778-CV

———————————

Manuel valadez , Appellant

V.

memc pasadena, inc. d/b/a memc electronic

materials

pasadena, inc. , Appellee

On Appeal from the 234th District Court

Harris County, Texas

Trial Court Case No. 2008-59250

MEMORANDUM OPINION

Appellant Manuel Valadez appeals

from the trial court’s summary judgment against him on his negligence suit

against appellee MEMC Pasadena, Inc. d/b/a MEMC Electronic Materials Pasadena,

Inc. (“MEMC”). In a single issue,

Valadez argues that the trial court erred in granting judgment in favor of MEMC

because Valadez’s claim was not barred by the exclusivity provision of the Workers’

Compensation Act. MEMC contends that the

trial court correctly granted summary judgment on the basis of the Workers’

Compensation Act and, in two cross-points, argues that the trial court’s

summary judgment can also be affirmed on two alternative grounds presented but

not reached by the trial court. MEMC’s

alternative grounds are (1) Valadez’s action was barred under Chapter 95 of the

Civil Procedure and Remedies Code, and (2) Valadez could not establish a

negligence claim as a matter of law. [1] We hold that Valadez’s claim against MEMC is

not barred by the Workers’ Compensation Act but is barred under Chapter

95. Because we can uphold the trial

court’s judgment on the basis of MEMC’s first cross-point, we do not reach

MEMC’s second cross-point. We affirm.

Background

MEMC owns and operates a chemical

process facility in Pasadena, Texas.

MEMC subcontracted maintenance of the Pasadena facility to Turner

Industries Group, LLC (“Turner”). MEMC’s

contract with Turner required Turner to maintain workers’ compensation coverage

for its employees, which Turner did. Valadez,

an employee of Turner, is an industrial pipefitter and boilermaker. On January 27, 2007, Valadez was injured

while performing work at the MEMC facility.

Attempting to measure the space for a pipe jack, Valadez stepped on a

bucket in order to reach the tape measure to the top of the space below the

pipe. As he went up, Valadez grabbed

onto the pipe to help balance himself.

When he did so, the pipe came loose and Valadez fell backward, with the

pipe landing on his ankle.

As a result of this accident,

Valadez claimed and received workers’ compensation benefits for approximately a

year and a half under the coverage procured by Turner. In October 2008, Valadez brought this negligence

action against MEMC. MEMC moved for summary

judgment on Valadez’s claim, arguing that the claim was barred by the

exclusivity provision of the Workers’ Compensation Act, that the claim failed

to meet the requirements under Chapter 95, and that Valadez could not prevail

on a common law negligence claim. The

trial court granted summary judgment in favor of MEMC on the basis of the

Workers’ Compensation Act and did not reach MEMC’s Chapter 95 and common law

grounds for summary judgment.

Summary

Judgment Standard of Review

We review a

trial court’s decision to grant summary judgment de novo. Mann Frankfort Stein & Lipp Advisors, Inc. v.

Fielding , 289 S.W.3d 844, 848 (Tex. 2009); Valence Operating Co. v.

Dorsett , 164 S.W.3d 656,

661 (Tex. 2005). We review the evidence

presented in the motion and response in the light most favorable to the party

against whom the summary judgment was rendered, crediting evidence favorable to

that party if reasonable jurors could and disregarding contrary evidence unless

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

S.W.3d 802, 827 (Tex. 2005). We must

review all of the summary judgment grounds on which the trial court ruled that

are dispositive of the appeal, and we may consider any other grounds on which

the trial court did not rule. See Baker Hughes, Inc. v. Keco R. & D.,

Inc., 12 S.W.3d 1, 5 (Tex. 1999) (citing Cincinnati Life Ins. Co. v.

Cates , 927 S.W.2d 623, 624

(Tex. 1996)). However, “[i]ssues not

expressly presented to the trial court by written motion, answer or other

response shall not be considered on appeal as grounds for reversal.” Tex.

R. Civ. P. 166a(c).

MEMC’s motion

for summary asserted both traditional and no-evidence grounds. On a motion for traditional summary judgment, the movant

bears the burden of demonstrating that no genuine issue of material fact exists

and that it is entitled to judgment as a matter of law. Tex.

R. Civ. P. 166a(c); KPMG Peat Marwick v. Harrison Cnty. Hous. Fin.

Corp. , 988 S.W.2d 746, 748

(Tex. 1999). A defendant-movant may meet

this burden by conclusively negating at least one essential element of each of

the plaintiff’s causes of action or by conclusively establishing each element

of an affirmative defense. Sci.

Spectrum, Inc. v. Martinez , 941 S.W.2d 910, 911 (Tex. 1997).

A

no-evidence summary judgment is essentially a directed verdict granted before

trial, to which we apply a legal sufficiency standard of review. King Ranch, Inc. v. Chapman , 118 S.W.3d 742 , 750–51 (Tex. 2003). A party moving for no-evidence summary

judgment must specifically state the element or elements of a claim for which

there is no evidence. Id. at

751; Green v. Indus. Specialty Contractors, Inc. , 1 S.W.3d 126,

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

raise a fact issue on each of the challenged elements. Tex. R.

Civ. P. 166a(i). A no-evidence

summary judgment will be sustained when (a) there is a complete absence of

evidence of a vital fact, (b) the court is barred by rules of law or of

evidence from giving weight to the only evidence offered to prove a vital fact,

(c) the evidence offered to prove a vital fact is no more than a scintilla, or

(d) the evidence conclusively establishes the opposite of a vital fact. King

Ranch , 118 S.W.3d at 751 (quoting

Merrell Dow Pharms., Inc. v. Havner , 953 S.W.2d 706, 711 (Tex. 1997)). Less than a scintilla of evidence exists when

the evidence is “so weak as to do no more than create a mere surmise or

suspicion” of a fact. Id. (quoting Kindred v. Con/Chem.,

Inc. , 650 S.W.2d 61, 63

(Tex. 1983)). More than a scintilla of

evidence exists when the evidence “rises to a level that would enable

reasonable and fair-minded people to differ in their conclusions.” Id.

(quoting Merrell Dow Pharms. ,

953 S.W.2d at 711 ).

Statutory

Construction Standard of Review

Statutory

construction is a legal question, which is reviewed de novo to ascertain

and give effect to the Legislature’s intent. HCBeck,

Ltd. v. Rice , 284 S.W.3d 349, 352 (Tex. 2009) (citing F.F.P.

Operating Partners, L.P. v. Duenez, 237 S.W.3d

680, 683 (Tex. 2007)). To discern that

intent, we must begin with the “plain and common meaning of the statute’s

words.” Id. (citing Tex. Dep’t of Transp. v. City of Sunset Valley , 146 S.W.3d 637, 642 (Tex. 2004)).

We also consider the objective the Legislature sought to achieve through the

statute, as well as the consequences of a particular construction. Id. (citing Tex. Dep’t of Transp. , 146 S.W.3d at 642 ; see also Tex. Gov’t Code Ann. § 311.023(1), (5)). Generally, we accept the ordinary meaning of

words used unless the Legislature provides a specific statutory definition. Cities of Austin, Dallas, Fort Worth &

Hereford v. Sw. Bell Tel. Co., 92 S.W.3d 434, 442 (Tex. 2002).

The

Workers’ Compensation Act

In his sole

issue, Valadez contends that the trial court erred by determining that the

exclusivity provision of the Workers’ Compensation Act precludes his negligence

claim against MEMC.

A. Introduction to Applicable Workers’

Compensation Law

The purpose

of the Texas Workers’ Compensation Act is to provide employees with certainty

that their medical bills and lost wages will be covered if they are injured,

without the time and expense of litigation. HCBeck,

Ltd. v. Rice , 284 S.W.3d 349, 350 (Tex. 2009); Hunt Constr.

Group, Inc. v. Konecny , 290 S.W.3d 238, 247

(Tex. App.—Houston [1st Dist.] 2008, pet. denied) . The Act encourages employers to participate

in workers’ compensation insurance with both the carrot and the stick:

employers who do not subscribe are precluded from relying on common law

defenses to negligence suits brought by employees injured on the job, Tex. Lab. Code Ann. § 406.033 (West

2006); employers who do subscribe are entitled to assert the exclusivity of the

workers’ compensation remedy as a bar to negligence actions brought by injured

employees, Tex. Lab. Code Ann. §

408.001(a) (West 2006). See also HCBeck , 284 S.W.3d at 350 ; Hunt , 290 S.W.3d at 247 (citing Kroger

Co. v. Keng ,

23 S.W.3d 347, 350 (Tex. 2000)).

The

exclusivity defense is found in Section 408.001(a) of the Act. It states: “Recovery of workers’ compensation

benefits is the exclusive remedy of an employee covered by workers’

compensation insurance coverage or a legal beneficiary against the employer or

an agent or employee of the employer for the death of or a work-related injury

sustained by the employee.” Tex. Lab. Code Ann. § 408.001(a). [2] A general contractor may qualify as “the

employer” within the meaning of this statute if the general contract “provides”

workers’ compensation insurance coverage to the subcontractor and its employees

pursuant to a written agreement. Tex. Lab. Code Ann. § 406.123(a), (e)

(West 2006); [3] HCBeck , 284 S.W.3d at 350 .

In this scenario, the general contractor and its “employees” under the

Act may assert the exclusivity defense against any subcontractors or employees

of subcontractors for which the general contractor has “provided”

coverage. E.g., HCBeck , 284 S.W.3d at 350 ; Hunt , 290 S.W.3d at 246 ; Funes

v. Eldridge Elec. Co. , 270 S.W.3d 666, 671 (Tex.

App.—San Antonio 2008, no pet.).

B. Analysis

The question in this case asks what

the circumstances must show for a general contractor to “provide” workers’

compensation insurance within the meaning of the Act, such that the general

contractor is entitled to assert the Act’s exclusivity defense. The parties agree that this case is governed

by the Texas Supreme Court’s decision in HCBeck ,

but disagree about the case’s import.

Valadez asserts that this case is distinguishable from HCBeck because the general contractor in

HCBeck was contractually obligated to

provide workers’ compensation insurance in the event the Owner Controlled

Insurance Policy (“OCIP”) was terminated; but MEMC has no contractual

obligation to provide workers’ compensation coverage for Turner or its employees. Valadez argues that a general contractor like

MEMC does not “provide” coverage if the general contractor is not contractually

obligated to purchase the insurance itself or compensate the purchaser for the

insurance premiums.

MEMC responds that it “provided”

workers’ compensation coverage to Turner by contractually requiring Turner to

maintain such coverage as a condition for Turner’s participation in the subcontract

with MEMC. MEMC points out that the

general contractor in HCBeck had not

paid for or reimbursed the workers’ compensation premiums at issue in that case

and was still determined to have “provided” coverage within the meaning of the

statute.

We conclude that merely requiring

the subcontractor to obtain its own workers’ compensation insurance does not

constitute “providing” coverage within the meaning of the statute.

1. Cases Interpreting the Term “Provides”

Coverage

a. HCBeck v. Rice

In HCBeck , FMR Texas Ltd. contracted with HCBeck, Ltd. to construct an

office on FMR’s property. HCBeck , 284 S.W.3d at 350 . The contract between FMR and HCBeck required

HCBeck and all of its subcontractors to enroll in FMR’s OCIP, which included

workers’ compensation insurance. Id. The

agreement permitted FMR to terminate the OCIP but required, in such instance,

that HCBeck obtain replacement insurance, including equivalent workers’

compensation coverage, for itself and its subcontractors at FMR’s expense. Id.

at 350–51.

HCBeck subcontracted with Haley Greer. Id.

at 351 . Pursuant to the FMR-HCBeck

contract, HCBeck’s subcontract with Greer required Greer to enroll in FMR’s OCIP,

which Greer did. Id. When Charley Rice, one

of Greer’s employees, was injured on the job, he claimed and received workers’

compensation benefits under the policy issued to Greer by FMR. Id. Rice subsequently brought a negligence

suit against HCBeck. Id. HCBeck

moved for summary judgment, arguing that it was entitled to assert the Workers’

Compensation Act’s exclusive remedy defense pursuant to Sections 406.123(a) and

408.001(a). Id. Rice argued HCBeck did

not “provide” worker’s compensation coverage — and therefore could not rely on

the statutory defense — because HCBeck did not, and was not contractually

obligated to, pay for Greer’s workers’ compensation insurance. Id. The trial court granted HCBeck’s motion for

summary judgment, but the court of appeals reversed and remanded, concluding that

HCBeck did not “provide” workers’ compensation coverage because the subcontract

called for Greer to obtain its own alternate insurance if FMR terminated the

OCIP. Id. at 354 .

The Texas Supreme Court reversed the

court of appeals, rejecting its conclusion that the subcontract put the

obligation of obtaining alternate insurance on Greer. The court read the contract as imposing the

obligation of obtaining alternate insurance on HCBeck in the first instance and

on Greer only if HCBeck defaulted on that obligation. Id. at

353–54. The court determined that this

was sufficient to satisfy the Act’s requirements even though HCBeck did not

actually obtain or pay for Greer’s workers’ compensation insurance. Id. at

353 (“[Section 406.123(a)] does not require a general

contractor to actually obtain the insurance, or even pay for it directly.”).

The court further

observed that “the Texas workers’ compensation insurance scheme, as enacted by

the Legislature, was intended to make the exclusive remedy defense available to

a general contractor who, by use of a written agreement with the owner and

subcontractors, provides workers’ compensation insurance coverage to its

subcontractors and the subcontractors’ employees.” Id. at

360 . The court concluded that the

OCIP, which was established and paid for by FMR pursuant to its contract with

HCBeck, qualified as “providing” coverage under the Act pursuant to Section

406.123(a). Therefore, the court held

that HCBeck was entitled to assert the exclusivity defense because it had

provided coverage to Greer’s employees by virtue of the OCIP. Id.

b. Hunt

Construction Group, Inc. v. Konecny and Funes v. Eldridge Electric Co.

While HCBeck was

pending in the Supreme Court of Texas, an appeal involving similar facts came

before this court. See Hunt Constr. Group, Inc. ,

290 S.W.3d at 245–47. Hunt also involved an OCIP, provided by the

Harris County Houston Sports Authority to the general contractor and

subcontractors on a construction project that is now the Toyota Center. Id. at

240–41. The contract between the Sports

Authority and its general contractor, Hunt, required Hunt and all of its

subcontractors at every tier to participate in the OCIP and include the OCIP

requirements in every subcontract. Id. Hunt

subcontracted the ventilation and air conditioning work to Way, which in turn

subcontracted the sheet metal and duct work to Superior. Id. at

240. Hunt subcontracted the application

of fireproofing material to Desert Plains, Inc.

Id. at 241. The OCIP provisions were included in Hunt’s

subcontracts with Way and Desert Plains and in Way’s subcontract with Superior. Id. at

241. The OCIP provisions provided that:

(1) Sports Authority would provide workers’ compensation for contractors and

subcontractors of every tier and pay all premiums; (2) participation in the

OCIP was “mandatory but not automatic,” making coverage dependent on

eligibility; (3) contractors and subcontractors not enrolled in the OCIP were

required to maintain their own insurance and provide certificates of insurance

to the Sports Authority; and (4) contractors could not permit any subcontractor

to enter the project site prior to OCIP enrollment unless the subcontractor was

ineligible for the OCIP and covered by its own insurance. Id.

at 241–42.

Konecny, a foreman for Superior, was injured on the job

while sharing the construction site with employees of Desert Plains. Id.

at 242.

He claimed and received workers’ compensation benefits pursuant to

the OCIP coverage. Id. He subsequently brought

negligence claims against Hunt, Way and Desert Plains. Id.

at 240. The trial court entered judgment

on a jury award in favor of Konecny. Id. at 242. On appeal, Hunt argued that the trial court

erred in denying its motions for directed verdict and judgment notwithstanding

the verdict because Konecny’s claims against it were barred by the exclusivity

provision of the Workers’ Compensation Act.

Id. We concluded that Hunt was a general

contractor who “provided” workers’ compensation insurance within the meaning of

Section 406.123(a) and, therefore, Hunt and its “employees” under the Act — Superior

and Way — were entitled to judgment on the basis of the exclusivity provision

of the Workers’ Compensation Act. Id. at 245–47.

In determining that Hunt was entitled to the exclusivity

defense, we rejected Konecny’s argument that Hunt did not “provide” coverage

because the Sports Authority, rather than Hunt, obtained the policy and paid

the premiums. Id. at 245– 46 (citing Funes v. Eldridge Elec. Co. , 270 S.W.3d 666, 671 (Tex. App.—San

Antonio 2008, no pet.); Williams v. Razor Enters., Inc. , 70 S.W.3d 274 , 277 n.6 (Tex. App.—San

Antonio 2002, no pet.); Williams v. Brown & Root, Inc. , 947 S.W.2d 673, 678 (Tex. App.—Texarkana

1997, no pet.)). We held that Section

406.123(a) was unambiguous and the term “provide” should be given its plain

meaning: “to supply or make available.” Id. at 245 (citing Webster’s Ninth New

Collegiate Dictionary 948 (1990); see

Funes , 270 S.W.3d at 671 ).

In so

holding, we relied in part on the San Antonio Court of Appeals’s interpretation

of the same provision in Funes :

[W]e

apply the plain and common meaning of the word “provide” within its reasonable

context, which we determine to be “to supply or make available.” With this definition in mind, we construe

subsection 406.123(a) to mean the following: where a general contractor and a

subcontractor enter into a written agreement under which the general contractor

supplies

or makes available workers’ compensation insurance coverage to the

subcontractor and its employees, the general contractor is the employer of the

subcontractor and its employees for purposes of the Workers’ Compensation Act,

as provided under subsection 406.123(e).

Funes ,

270 S.W.3d at 671 (internal citations omitted) (holding that employee of

subcontractor was barred from bringing suit against general contractor’s other

subcontractor where subcontracts obligated subcontractors to participate in

OCIP and both subcontractors did participate in OCIP).

Consistent

with this definition of “provide,” we concluded in Hunt that Hunt did “provide” workers’ compensation insurance to its

subcontractors and was thus an employer under the Act. Hunt ,

290 S.W.3d 246 . Because the subcontractors

in Hunt received the OCIP coverage

provided by Hunt, we concluded that they and their employees were employees of

Hunt under the Act. Id. at 247 . We therefore

held that Konecny’s sole remedy was workers’ compensation and his negligence

claim against Hunt, Way and Desert Plains were barred. Id.

2. Application

of Cases Interpreting “Provides” Coverage

In HCBeck , HCBeck

was ultimately financially responsible for the workers’ compensation coverage

because, as the Texas Supreme Court determined, HCBeck would be required to

procure coverage for Greer in the event that FMR terminated the OCIP. Id. at

353–54.

In Hunt and Funes , however, the courts made no distinction

with respect to responsibility for coverage in the absence of the OCIP. See

Hunt , 290 S.W.3d 245–47; Funes , 270 S.W.3d at 671–73. HCBeck

cited both Hunt and Funes favorably in this respect. HCBeck ,

284 S.W.3d at 358–59. It is the

provision of coverage, not the responsibility in the event of its absence, that

supports the exclusivity defense. See id. at 359 (noting that this

interpretation of the statute favors blanket coverage of all workers in

multi-tiered contractor relationships in manner that serves the Legislature’s

“decided bias” for coverage).

However,

as both parties agree, the subcontract at issue in this case only requires

Turner to obtain workers’ compensation for itself as a requisite for

participation in the project. It does

not “supply or make available” workers’ compensation to Turner or Turner’s

employees; it merely requires the subcontractor to independently acquire its

own coverage. Cf. Hunt , 290 S.W. 3d

245 ; Funes , 270 S.W.3d at 671–72. MEMC cites no authority where such a

contractual requirement for self-supplied coverage by the subcontractor has

been held to entitle a general contractor to invoke the exclusive remedy

defense of the Workers’ Compensation Act.

MEMC has not contractually “provided” coverage for Turner and its

employees, and thus does not qualify as an “employer” under the Act. See Hunt ,

290 S.W.3d 245 ; Funes , 270 S.W.3d at

671 ; Tex. Lab. Code Ann. §

406.123(a), (e) .

MEMC therefore may not uphold its summary judgment on the basis of the

exclusivity provision of the Workers’ Compensation Act.

Chapter 95

A second ground for summary judgment

MEMC asserted in its motion was that Valadez failed to satisfy Section 95.003

of the Civil Practice and Remedies Code because neither of the statute’s

requisites for liability — control and actual knowledge — were met. In a cross-point, MEMC argues that the trial

court’s judgment can be affirmed on this alternative ground. Valadez did not address this issue in his

appellant’s brief, nor did he respond to MEMC’s cross-point in his reply

brief. This Court entered an order

noting that MEMC had raised cross-points and allowing Valadez additional time

to file briefing addressing the cross-points, but Valadez declined to file

briefing on the cross-points. In

addressing MEMC’s Chapter 95 cross-point, we look to the summary judgment

briefing to determine the arguments raised by the parties before the trial

court. See, e.g., Travis v. City of Mesquite , 830 S.W.2d 94, 100 (Tex.

1992) (observing that appellate court’s review of summary judgment is limited

to arguments presented to trial court); Klentzman

v. Brady , 312 S.W.3d 886 , 909 n.14 (Tex. App.—Houston [1st Dist.] 2009, no

pet.) (same).

Section 95.003 reads:

A

property owner is not liable for personal injury, death, or property damage to

a contractor, subcontractor, or an employee of a contractor or subcontractor

who constructs, repairs, renovates, or modifies an improvement to real property,

including personal injury, death, or property damage arising from the failure

to provide a safe workplace unless:

(1)

the property owner exercises or

retains some control over the manner in which the work is performed, other than

the right to order the work to start or stop or to inspect progress or receive

reports; and

(2) the property

owner had actual knowledge of the danger or condition resulting in the personal

injury, death, or property damage and failed to adequately warn.

Tex. Civ. Prac. & Rem. Code

Ann.

§ 95.003 (West 2005).

In its motion for summary judgment, MEMC

asserts Valadez has no evidence of control or actual knowledge and provides

evidence purporting to show a lack of control or actual knowledge. Valadez’s response includes evidence that he asserts

raises an issue of fact on each of those issues. Valadez did not contest that Chapter 95 applies

to his claim. We conclude that Valadez

presented no evidence sufficient to raise a question of fact as to whether MEMC

had actual knowledge of the danger or condition that allegedly caused his

injury. Because Valadez did not contest

the applicability of Chapter 95 and did not raise an issue of fact on the

prerequisite of actual knowledge, summary judgment was proper.

A. Actual Knowledge

As evidence of actual knowledge, Valadez

relies largely on the deposition testimony of Genarro Arredando. The cited portions of Arredando’s deposition

relevant to an actual knowledge inquiry tend to show the following:

·

after Valadez’s accident, Arredando called out

to three MEMC employees who were located on the ground, approximately 20 feet

below where Valadez and Arredando were located;

·

these operators saw the buckets in the area

where Valadez and Arredando were located, but Arredando did not specify whether

this was before or after the accident;

·

at a post-accident meeting where he was asked

about how the accident happened, he told MEMC personnel that they were trying

to put in a pipe jack to support the line and Valadez was measuring for the

jack;

·

the shutdown process that Turner was performing

at the time of Valadez’s accident was a process that they performed every six

months; and

·

one crewmember left to speak to MEMC about the

job that Turner was performing at the time of Valadez’s accident, but there is

no indication in the cited portions of the record of what, if anything, this

crewmember may have said to MEMC.

This testimony tends to show that,

prior to Valadez’s accident, MEMC had actual knowledge that Valadez and other

Turner employees were present in the area and were performing work. Arredando’s testimony does not show that MEMC

had actual knowledge of the alleged dangerous condition created by Valadez’s

use of a bucket as a stepping stool and grabbing onto a pipe to balance himself.

Valadez also cites to his own

deposition testimony and incorporates by reference the affidavit of his expert,

Stephen Astrin. Valadez relies on his

own testimony for the proposition that MEMC employees were present when another

Turner employee instructed Valadez to take a pipe out of the bottom of the

reactor. While Valadez may be citing

this testimony as evidence of control, it does not tend to show that MEMC had

any actual knowledge of a danger or condition that allegedly caused Valadez’s

injury. [4] Having reviewed the Astrin affidavit, we

observe that its addresses whether MEMC complied with certain standards of

care, whether such noncompliance caused Valadez’s injury, and whether MEMC

exercised control over Turner’s work, but does not address whether MEMC had

actual knowledge of a dangerous condition.

We conclude that the evidence

presented by Valadez does not constitute more than a scintilla of evidence that

MEMC had “actual knowledge of the danger or condition” that

allegedly resulted in Valadez’s injuries.

See

Tex. Civ. Prac. & Rem. Code Ann. §

95.003 (2).

B. Control

Having

determined that Valadez has not presented evidence sufficient to raise an issue

of fact as to whether MEMC had actual knowledge of the alleged dangerous

condition, we need not reach the issue of whether MEMC exercised or retained

control over Valadez’s work as required to satisfy the other prong of Section 95.003. Section 95.003 precludes liability

unless both prongs of the statute — control and actual knowledge — are

satisfied. Tex. Civ. Prac. & Rem. Code Ann. § 95.003; Dyall v. Simpson Pasadena Paper Co. , 152

S.W. 3d 688, 699 (Tex. App.—Houston [14th Dist.] 2004, pet. denied) (noting

that control and knowledge are two independent and necessary conditions to

imposition of liability in Chapter 95 action).

Therefore, we hold that Section 95.003 of the Civil Practice and

Remedies Code precludes Valadez from establishing liability against MEMC in

this action and affirm the trial court’s judgment on this ground.

Conclusion

We affirm

the trial court’s judgment.

Elsa

Alcala

Justice

Panel consists of Chief Justice Radack and Justices Alcala and Bland.

[1] MEMC

did not file a separate appeal and raises these cross-points in its appellee’s

brief. Because MEMC’s cross-points

merely present an alternative basis for affirming the trial court’s and do not

seek more relief that was granted in the judgment, no separate notice of appeal

is required. See Helton v. R.R. Comm’n of Tex. , 126 S.W. 3d 111, 119-20 (Tex.

App.—Houston [1st Dist.] 2003, pet. denied).

[2] The

statute contains an exception relating to gross negligence claims that is not

implicated here.

[3] Section

406.123 provides in part:

(a) A general contractor and a subcontractor may enter into a

written agreement under which the general contractor provides workers’

compensation insurance coverage to the subcontractor and the employees of the

subcontractor.

. . .

(e) An agreement under this section makes the general contractor

the employer of the subcontractor and the subcontractor’s employees only for

the purposes of the workers’ compensation laws of this State.

. . .

[4] Valadez

also references portions of Arredando’s deposition testimony for certain facts

that may be relevant to the control inquiry but are not relevant to the actual

knowledge inquiry, such as Arredando’s testimony that Turner employees got

raingear from MEMC at the MEMC warehouse, that MEMC requires Turner employees

to wear an oxygen suit when breaking an oxygen line, and that MEMC told Turner

when to start work on the process that Turner was performing at the time of

Valadez’s accident.