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Click here for the full text of this decision FACTS:Skillmaster, a temporary employment agency, hired Melquiades Flores and assigned him to work at TieTek’s plastics manufacturing plant. Two months later, TieTek and Skillmaster entered into a contract for the placement of additional laborers. Under the contract, Skillmaster was to maintain workers’ compensation insurance for the workers, though the cost would be passed on to TieTek. Flores was fatally injured on the job just over four months after he began working at TieTek. Flores’ parents sued TieTek and its parent company, North American Technologies Group, as well as Skillmaster, for wrongful death. The trial court granted TieTek’s traditional motion for summary judgment, which asserted that Flores was its borrowed servant, or that TieTek was Flores’ co-employer along with Skillmaster, and that Flores’ exclusive remedy against TieTek in that circumstance was limited to benefits under the Texas Workers’ Compensation Act. The trial court also granted Skillmaster’s no-evidence summary judgment motion, which asserted that it was Flores’ employer and that the workers’ compensation statute provided the exclusive remedy. On appeal, the Floreses concede that the TWCA is their exclusive remedy against Skillmaster, but they argue that the wrong test of the employment relationship was used in relation to TieTek. HOLDING:Affirmed. The Floreses argue that the trial court used the “right-to-control” test, but that the Supreme Court favors the definition of “employer” found in the TWCA. The court finds the Floreses’ reliance on Wingfoot Enterprises v. Alvarado, 111 S.W.3d 134 (Tex. 2003), misguided. The Alvarado court did not reject the right-to-control test used to determine an entity’s status as an employer for purposes of the applicability of the TWCA, including its exclusive remedy provision. Instead, the court finds, the Alvarado court held that an employee can have more than one employer for the purposes of the TWCA and its exclusive remedy provision. The right-to-control test was left intact, the court rules. The court thus reviews the record to see if TieTek exercised sufficient control over the details of Flores’ work to be considered his “employer,” despite the fact that the workers’ compensation insurance was secured by Skillmaster. The contract between TieTek and Skillmaster does not expressly establish who has the right to control the workers assigned to TieTek. The contract notes that Skillmaster must maintain certain responsibilities toward the employees, such as site inspections and OSHA-compliance inspections. Nonetheless, in the absence of specific provisions of who controlled the day-to-day activities of the employees, the court finds that the right to control is necessarily determined by inference based on the type of job, the nature of the work, the machinery used, the length of employment and more. Reviewing TieTek’s deposition with these considerations in mind, the court finds that TieTek exercised control over Flores’ actions. The court notes additional factors, too. For instance, although Skillmaster technically had the authority to fire the employees, the authority was not used unless TieTek requested that the employee be fired. OPINION:Radack, C.J.; Radack, C.J., Keyes and Alcala, JJ.

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