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Click here for the full text of this decision FACTS:Hank Altenburg was a temporary worker hired by Unique Employment Services and sent to work for Western Steel Company. While working for Western, Altenburg was injured when a heated steel beam fell on his foot. He was thereafter paid benefits under Unique’s workers’ compensation policy. Altenburg subsequently sued Western for his injuries. Western answered, asserting its own workers’ compensation policy as a bar to Altenburg’s action. Western also filed a motion for summary judgment, asserting that it was not liable under the exclusive remedy provision of the workers’ compensation statute because Altenburg was its borrowed employee. The trial court, however, denied the motion for summary judgment, and the case proceeded to trial. Altenburg subsequently indicated his intent to offer into evidence the workers’ compensation policies of both Unique and Western. Western’s attorney objected that the admission of its compensation policy was unnecessary because: 1. Altenburg had previously conceded its existence, and 2. it was irrelevant for the jury’s decision. The trial court overruled Western’s objections and admitted plaintiff’s exhibits 14A and 14B, which Altenburg’s attorney identified as Unique’s and Western’s workers’ compensation policies. Exhibit 14B, however, was not Western’s compensation policy but rather was Western’s commercial general liability policy. Apparently, neither the court nor the parties noticed the mistake. At the conclusion of the evidence, several questions were submitted to the jury, including one inquiring whether Altenburg was Western’s borrowed employee. The trial court rendered judgment against Western for damages relating to Altenburg’s injury. Western appealed, challenging the legal and factual sufficiency of the jury’s failure to find that Altenburg was Western’s borrowed employee. Rather than address these issues, the court of appeals examined exhibit 14B, Western’s general liability policy and the testimony of Western’s president, concluding that Western was not entitled to assert the workers’ compensation bar as a defense because there was no evidence that it had workers’ compensation insurance. In fact, the court noted that after carefully examining plaintiff’s exhibit 14B, it had discovered that Western’s commercial general liability (the policy mistakenly admitted instead of its applicable workers’ compensation policy) expressly excluded workers’ compensation. After the court’s decision, Western filed its motion for rehearing and a motion to correct the record to substitute its workers’ compensation policy for the general liability policy mistakenly tendered as plaintiff’s exhibit No. 14B. The court denied Western’s motion for rehearing without taking any apparent action on the motion to correct the record. HOLDING:Reversed and remanded. Western raised its workers’ compensation insurance as a defense and therefore bore the burden of proving that it was Altenburg’s employer and that it had coverage at the time of his injury, the the Texas Supreme Court stated. The latter issue was not disputed as Altenburg’s counsel agreed that Western had workers’ compensation insurance and had attempted to put that policy in evidence as plaintiff’s exhibit 14B, the court stated. Despite this, the court concluded that the court of appeals put the matter in issue, affirming the trial court’s judgment without reaching the merits of the issues actually raised on appeal. By doing this, the Texas Supreme Court stated, the court of appeals creating a fact issue where none existed. Accordingly, the court reversed the court of appeals’ judgment and remanded the cause to court of appeals for further proceedings consistent with its opinion. OPINION:Per curiam.

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