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Click here for the full text of this decision FACTS:The appellee, Hank Altenburg, sued the appellant, Western Steel Co. Inc., for injuries sustained in a work-related accident. Altenburg suffered an injury to his foot while heating steel beams at Western’s structural steel shop. Altenburg was a temporary worker employed by Unique Employment Services and had been sent by Unique to work in Western’s shop. Altenburg was covered by and received benefits under Unique’s worker’s compensation policy but he sued Western, asserting negligence and gross negligence related to the accident. A jury found that Western was negligent, that Altenburg was not Western’s borrowed employee, and that Altenburg was entitled to damages. Western appealed the legal and factual sufficiency of the jury’s finding that Altenburg was not its borrowed employee and argued that because Altenburg was a borrowed employee, Western was immune from liability by the worker’s compensation bar. HOLDING:The court affirmed the trial court’s judgment. The exclusive remedy provision of the Texas Workers’ Compensation Act, Texas Labor Code 408.001, provides that recovery of workers’ compensation benefits is the exclusive remedy of an employee covered by workers’ compensation insurance coverage against the employer for a work-related injury sustained by the employee. The court notes that a temporary employee may have more than one employer for purposes of the TWCA’s exclusive remedy provision, but a temporary employment agency cannot obtain worker’s compensation insurance for a client company simply by obtaining coverage for itself. A prerequisite to the application of the exclusive remedy provision of the TWCA to Altenburg’s case was proof that Western was covered by workers’ compensation insurance for a work-related injury sustained by Altenburg. Consequently, the court holds, Western was required to plead and prove: 1. that Altenburg was a borrowed servant; 2. that he was entitled to worker’s compensation benefits; and 3. that Western had worker’s compensation insurance that covered claims asserted by borrowed servants. The court finds that Western presented no evidence to the trial court that it was “covered by workers’ compensation insurance coverage” under the TWCA, and that such coverage would have covered a claim made by Altenburg. The court examines Western’s workers’ compensation policy and concludes that it does not establish that Western was “covered by workers’ compensation insurance” as required under the exclusive remedy provision of the TWCA. Therefore, even if the evidence establishes as a matter of law that Altenburg was Western’s borrowed employee, such a determination, without proof that Western was covered by worker’s compensation insurance, is immaterial. OPINION:Yanez, J.; Yanez, and Garza, JJ. Castillo, J., dissented. DISSENT:Castillo, J. The dissenting justice concludes that not more than a scintilla of evidence existed to support the jury’s finding on the borrowed servant issue, on which Western Steel bore the burden of proof. Also, the dissent finds that under the second prong of the legal sufficiency analysis, review of the entire record was required to determine whether the opposite of the jury’s finding was established as a matter of law, and the factual sufficiency analysis requires review of the entire record to determine if the jury’s finding was so against the great weight and preponderance of the evidence as to be manifestly unjust. The dissent concludes that the evidence established that Altenburg was a borrowed employee of Western Steel as a matter of law and that the evidence was factually insufficient to support the jury’s finding, because that finding was against the great weight and preponderance of the evidence. The dissent states that further consideration is needed from the trial court as to whether or not Western Steel, even if Alternburg were its borrowed servant, adequately tendered evidence entitling it to claim protection under the workers’ compensation exclusive remedy bar.

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