Defendants’ Motion for Summary Judgment

Summary: This case was a construction accident case where Heygood, Orr & Pearson defended a general contractor on the construction of a residence.  The plaintiff claimed that he fell from the roof of the residence while installing the roof injuring his leg.  Evidently, the plaintiff was an employee of a subcontractor of the roofing contractor that the Defendant general contractor hired to install the roof on the subject residence.  In this summary judgment motion, Heygood, Orr & Pearson asserted that summary judgment should be granted because the general contractor had no right to control nor did it exercise any control over the installation of the roof.  Under Texas law, general contractors cannot be held liable for injuries to employees of subcontractors unless they had the right to control or did in fact control the work that was being done at the time of the injury.

 

CAUSE NO. DC-12-05101

FELIPE CARDONA,

Plaintiff,

vs.

SIMMONS ESTATE HOMES I, LP d/b/a
SIMMONS ESTATE HOMES,
JOE HALL ROOFING, INC.,
MCH PERSONNEL MGT, INC.,
ALFREDO DERAS and
JUSTINO ROQUE,

Defendants.

IN THE DISTRICT COURT
116th JUDICIAL DISTRICT
DALLAS COUNTY, TEXAS

DEFENDANT SIMMONS ESTATE HOMES I, LP d/b/a SIMMONS ESTATE HOMES’ MOTION FOR SUMMARY JUDGMENT

COMES NOW, Simmons Estate Homes I, LP d/b/a Simmons Estate Homes (“Defendant”), and files this Motion for Summary Judgment, respectfully showing the Court the following:

I.

SUMMARY

Plaintiff seeks damages in this case for a fall injury he alleges to have sustained while performing residential roofing work. Defendant was the general contractor hired to build the home. The subject roofing work was performed through an independent contractor hired by Defendant. By contract and in actual fact, Defendant neither retained nor exercised any control over any of the roofing work at issue. Further, there was no joint enterprise between the Defendant and the other defendants because there was no agreement, pecuniary interest, or equal right of control among them. Therefore, summary judgment for Defendant is proper and should be granted on Plaintiff’s negligence and joint enterprise claims.

II.

SUMMARY JUDGMENT EVIDENCE

Exhibit “A”: Affidavit of Jonathan Hebb

Exhibit “A-1”: Contract between Simmons Estate Homes and Joe Hall Roofing, Inc.

Exhibit “B”: Plaintiff’s Original Petition

III.

FACTS

Defendant was hired as the general contractor to build a home in Westlake, Texas in 2010. As part of this construction project, Defendant hired Joe Hall Roofing, Inc. (“Joe Hall”) via a written contract as an independent contractor to supply and install the roof on the home. After hiring Joe Hall, Defendant had no further control over the roof installation. Joe Hall, directly or indirectly through other subcontractors, employed the Plaintiff and installed the roof. Defendant did not employ the Plaintiff, did not supervise the Plaintiff, did not retain control over the means by which the Plaintiff or any contractor installed the roof, contractually or otherwise, and did not exercise any actual control over the Plaintiff’s work or any of the various independent contractors involved in installing the roof. Defendant also did not provide Joe Hall or any other roofing subcontractor or laborer with any tools, supplies, materials, equipment, or offices. The Contract with Joe Hall was the only agreement that Defendant had regarding the roof work. Defendant did not have any other agreements, either formal contracts or informal agreements, with any other person or contractor regarding the roof work to be done by Joe Hall and/or its subcontractors.

IV.

TRADITIONAL MOTION FOR SUMMARY JUDGMENT

A traditional motion for summary judgment is properly granted when the movant establishes that there are no genuine issues of material fact, and that he is entitled to judgment as a matter of law. A matter is conclusively established if ordinary minds could not differ as to the conclusion to be drawn from the evidence. A defendant seeking summary judgment must negate as a matter of law at least one element of each of the plaintiff’s theories of recovery, or plead and prove as a matter of law each element of an affirmative defense. Once the movant has established that it is entitled to summary judgment as a matter of law, the burden shifts to the non-movant to produce summary judgment evidence raising a genuine issue of material fact.

V.

ARGUMENTS AND AUTHORITIES

Contrary to Plaintiff’s allegations that all other defendants were agents or employees of Defendant, Joe Hall was an independent contractor over which Defendant had no control. Therefore, Defendant did not owe the Plaintiff a duty, and Plaintiff’s negligence claim fails. Further, because of the independent contractor relationship between the defendants, summary judgment is proper on Plaintiff’s joint enterprise claim.

A. Plaintiff’s Negligence Claim

Defendant did not employ Plaintiff. Instead, Plaintiff was employed by an independent contractor over whom Defendant had no control. As part of the Plaintiff’s negligence claim, he must prove that Defendant owed a duty to him. The Texas Supreme Court clearly articulated the duty owed by a contractor to an independent contractor’s employees in Dow Chemical Co. v. Bright. In this regard, a contractor generally owes no duty to the employees of an independent contractor.

Instead, a contractor only owes a duty to an independent contractor’s employee if: (1) the contractor had control over the independent contractor’s work through either (a) a contractual right to control the work, or (b) the exercise of actual control over the work; AND (2) there is a nexus between the contractor’s control and the condition or activity that caused the injury. Under either method of control, a contractor does not owe a duty unless it controls the means, methods, or details of the independent contractor’s work. The Texas Supreme Court has analyzed what this level of control requires, and has held that liability is not created by: directing that the work be done in a safe manner; directing when the work should start or stop; controlling schedules and work orders; inspecting progress; or requiring reports. In other words, a duty only arises if there is such retention of supervision that the independent contractor is not entirely free to do the work in his own way.

1. Defendant had no contractual right to control any subcontractor’s work

A contract expressly providing that a person is an independent contractor is determinative of the relationship, absent evidence the contract was a sham, or that there was a subsequent agreement between the parties. The contract between Defendant and Joe Hall specifically provides that Joe Hall would be an independent contractor, and would not be under Defendant’s direction or control. When Defendant hired Joe Hall as an independent contractor, it did not retain any right to control Joe Hall’s work on the project. In this regard, section 11 of Defendant’s contract with Joe Hall provides:

[Joe Hall] is an independent contractor of [Defendant] and is not an employee of [Defendant]…[Joe Hall] is not under the direction and control of [Defendant] and certifies that [Joe Hall] may be employed by or contract with other companies in the trade. [Joe Hall] certifies that [Joe Hall] uses its own tools, offices at the business address shown above and there has never been, nor will there be, during the term of this Agreement, an employer/employee relationship with [Defendant]…

The contract further provides that Joe Hall would be responsible for the safety of its employees, as well as providing all materials, labor, tools, equipment, supervision, supplies, and other necessary items for the work. Because the contract provides that Joe Hall would be hired as an independent contractor with exclusive control over all aspects of its own work, Defendant did not owe a duty to any of Joe Hall’s employees or the employees of Joe Hall’s subcontractors.

2. Defendant did not exercise actual control over any subcontractor’s work

Just as Defendant did not have the contractual right to control Joe Hall’s work, Defendant did not exercise actual control over the work done by Joe Hall or its subcontractors. Defendant did not provide any tools, supplies, materials, equipment, supervision, or labor for the work done by Joe Hall or its subcontractors. Similarly, Defendant did not hire, train, pay, or supervise any of Joe Hall’s employees or its subcontractor’s employees. Defendant merely hired Joe Hall as an independent contractor to install the roof, and then left them to perform the work as they saw fit. Defendant did not owe the Plaintiff a duty, because it did not have the contractual right to control, nor did it exercise actual control over, the roofing work done by Joe Hall or any other independent contractor. Therefore, summary judgment is proper on Plaintiff’s negligence claim.

3. Any control Defendant had was not related to the cause of Plaintiff’s injury

Defendant is also not liable in this case because any control it may have had was in no way related to the condition that allegedly caused Plaintiff’s injury. Even if a contractor maintains some level of control over an independent contractor’s work, liability does not arise unless that control relates to the condition that leads to the Plaintiff’s injury.

Assuming arguendo that Defendant had some control over the work done by Joe Hall or its subcontractors (which it did not), this control was in no way related to the condition that allegedly led to the Plaintiff’s injury. The Plaintiff alleges that his injury resulted from a negligent failure to train and supervise employees in proper safety procedures. The contract between Defendant and Joe Hall did not give Defendant the right to hire, train, or supervise any employees of Joe Hall or its subcontractors, and in fact, specifically relinquished control over such activities to Joe Hall. Similarly, Defendant did not exercise actual control over such activities. Therefore, any alleged control Defendant may have had over the work performed by Joe Hall or another independent contractor (which in truth was no control) was in no way related to the condition that allegedly caused the Plaintiff’s injury, and summary judgment is proper in favor of Defendant on Plaintiff’s negligence claim.

B. Plaintiff’s Joint Enterprise Claim

The Plaintiff erroneously characterizes the relationship between the defendants as a joint enterprise for the construction of the house. In reality, the relationship between the defendants was that of a principal and independent contractor. To prove a joint enterprise existed, the plaintiff must prove: 1) an agreement among the members of a group; 2) a common purpose to be carried out by the group; 3) a community of pecuniary interest in that purpose among the members; and 4) an equal right of control among the members. In this regard, Plaintiff’s claim of joint enterprise fails because there was no agreement among the defendants, there was no community of pecuniary interest among the defendants, and there was no equal right of control between defendants.

1) No Agreement Among the Defendants

As part of the Plaintiff’s joint enterprise claim, he must prove that there was an agreement among the defendants. In this case, there was no agreement between the defendants that can serve as the basis for a joint enterprise claim. Defendant had an agreement with Joe Hall wherein Joe Hall would install the slate roof, but never had any agreement with any other independent contractor. Defendant did not enter into any other contracts with the other contractors, or even have informal agreements with the other contractors. The only agreement Defendant had regarding the roof, either formal or informal, was with Joe Hall. Therefore, Defendant was not part of a joint enterprise to the extent that it did not have an agreement with anyone other than Joe Hall.

2) No Common Pecuniary Interest Among the Defendants

The Plaintiff must also prove a community of pecuniary interest among the defendants as part of his joint enterprise claim. The Texas Supreme Court has limited joint enterprise liability to cases in which the defendants share a community of pecuniary interest. To satisfy this element, the parties must share a pecuniary interest without special or distinguishing characteristics. The Texas Supreme Court has highlighted how narrow this definition is. Examples of special or distinguishing characteristics that defeat an allegation of community of pecuniary interest include relationships such as a franchisor and franchisee, wholesaler and retailer, and a manufacturer and a dealer further down the supply chain. All of these relationships share common business interests, but the pecuniary interests have special or distinguishing characteristics and thus they cannot serve as the basis for an allegation of joint enterprise.

In this case, the Defendant and independent contractors did not share a community of pecuniary interest without special or distinguishing characteristics. Defendant had a pecuniary interest in building the home because of its contract with the homeowner. In contrast, the independent contractors had their own pecuniary interest in specific construction projects for the contract price they negotiated for. This is similar to the manufacturer example mentioned in St. Joseph Hospital. The independent contractors had a pecuniary interest in discrete aspects of the project further down the supply chain, much like a manufacturer who makes a component part of a product. Their pecuniary interest in the project was based on their own contracts for a discrete part of the home, and was categorically different than the Defendant’s interest in the whole project. Because there was no community of pecuniary interest among the defendants, summary judgment is proper on Plaintiff’s joint enterprise claim.

3) No Equal Right of Control Between the Defendants

The Plaintiff’s joint enterprise claim also fails because there was not an equal right of control among the defendants. The central inquiry in analyzing the equal-right-of-control element is whether the defendant charged with joint enterprise liability had the right to control the tortfeasor at the time of the tortious conduct. The tortious conduct alleged in this case is an alleged failure to property train and supervise the workers installing the roof. By definition, there is not an equal right of control in an independent contractor relationship. The 5th Circuit, applying Texas law, expressed this idea in Walker v. Messerschmitt Bolkow Blohm and held that an independent contractor relationship precludes a finding of joint enterprise because the principal has no right to control the independent contractor. In addition, a contract expressly providing that a person is an independent contractor is determinative of the relationship, absent evidence the contract is a sham or a subsequent agreement between the parties.

Plaintiff’s joint enterprise claim fails because there was no equal right of control among the defendants. As discussed in great detail above, Defendant had no control over Joe Hall’s work on the roof. The contract between Defendant and Joe Hall specifically provided that Joe Hall would be an independent contractor, and Defendant would have no control over Joe Hall’s work. Further, Defendant had no control over the tortious conduct alleged by Plaintiff. Defendant had no control over the hiring, training, or supervising of the employees of any independent contractor. Defendant similarly had no control over the safety procedures and supervision of Joe Hall or any other independent contractor responsible for the roofing work. Thus, there was no equal right of control between Defendant and the independent contractors, and summary judgment is proper on Plaintiff’s joint enterprise claim in favor of Defendant.

VI.

PRAYER

WHEREFORE, Defendant requests the Court grant summary judgment in its favor, that all claims asserted against Defendant by Plaintiff be dismissed from this action and that Plaintiff take nothing thereunder, and for such other and further relief, both general and special, at law or in equity, to which Defendant may be justly entitled.

Respectfully Submitted,

____________________________________

Eric D. Pearson

State Bar No. 15690472

HEYGOOD, ORR & PEARSON

2331 W. Northwest Highway

Second Floor

Dallas, Texas 75220

(214) 237-9001 Telephone

(214) 237-9002 Facsimile

ATTORNEY FOR DEFENDANT

SIMMONS ESTATE HOMES I, LP d/b/a

SIMMONS ESTATE HOMES