Lazo v. Exxon Mobil Corp., No. 14-06-00644-CV (Tex. App. - Houston [1st Dist.] May 7,
2009)(Brown)(workers compensation act immunity, exclusive remedy defense, Entergy holding
Affirmed and Memorandum Opinion filed May 7, 2009.
On Appeal from the 113th District Court
Harris County, Texas
Trial Court Cause No. 2005-36987
M E M O R A N D U M O P I N I O N
This is an appeal from a summary-judgment order signed June 19, 2006, in favor of Exxon
Mobil Corporation (“ExxonMobil”). The appellant, Marcos A. Lazo, raises four issues on
appeal, questioning ExxonMobil’s proof of both its affirmative defenses of preemption and
the exclusive-remedy defense afforded employers under the Texas Workers’
Compensation Act. We affirm the trial court’s judgment.
This appeal arises from a suit by Marcos A. Lazo against ExxonMobil for personal injuries
sustained while Lazo was employed by Mundy Support Services, LLC, a contractor
performing services at the ExxonMobil Baytown refinery. ExxonMobil moved for summary
judgment on the affirmative defenses of preemption and the exclusive-remedy provision of
the Texas Workers’ Compensation Act. The trial court granted summary judgment without
specifying the grounds on which it was based, and ruled that Lazo take nothing on his
The standard of review of a summary-judgment order is well established. “ movant must
establish its right to summary judgment by showing that no genuine issue of material fact
exists and that it is entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co.,
690 S.W.2d 546, 548 (Tex. 1985). A defendant who moves for summary judgment on an
affirmative defense must conclusively prove all elements of that defense as a matter of
law. Havlen v. McDougall, 22 S.W.3d 343, 345 (Tex. 2000).
In his first two issues, Lazo claims that ExxonMobil failed to prove conclusively that the
exclusive-remedy defense applies because it did not establish it was a “general
contractor” under section 406.121 of the Texas Labor Code and a statutory employer
under section 408.001(a). The exclusive-remedy defense is set out in section 408.001:
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) (Vernon 2006). Thus, to be entitled to assert this as a
defense, ExxonMobil had to establish it was an “employer.” In this case, Lazo was an
employee of Mundy Support Services, LLC. But even if a worker is not directly employed
by the company that provides workers’-compensation coverage, that company may be
deemed an employer by the Act if the company meets the requirements of certain
provisions of the statute. Section 406.123 permits a general contractor to be considered
an employer for the purposes of the workers’ compensation as follows:
(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 purposes of the workers’
compensation laws of this state.
Tex. Lab. Code Ann. §406.123 (a),(e) (Vernon 2006).
A “general contractor” is a “person who undertakes to procure the performance of work or
a service, either separately or through the use of subcontractors.” Tex. Lab. Code Ann.
§406.121(1) (Vernon 2006). Thus, to be entitled to the exclusive-remedy provision of the
Act, ExxonMobil had to show it was a general contractor that fell within the statutory
requirements to be deemed an employer.
In Entergy Gulf States, Inc. v. Summers, C S.W.3d C , No. 05-0272, 2009 WL 884906
(Tex. Apr. 3, 2009), the supreme court held that a premises owner, such as ExxonMobil,
can fall within the definition of a general contractor and can therefore be deemed an
employer under the Act. The facts in Entergy are very similar to the facts in this case.
Entergy contracted with another company, International Maintenance Corporation (IMC), to
assist with maintenance and repairs at Entergy’s facilities. 2009 WL 884906 at *1.
Entergy provided workers’-compensation insurance for IMC’s employees through an
owner- provided insurance program, or OPIP. Id. One of IMC’s employees was injured
and received benefits under the workers’-compensation policy purchased by Entergy. Id.
The supreme court held that Entergy could be a general contractor under the Act because
it procured services from IMC. Id. at *3. Additionally, the court held that Entergy was
deemed to be an employer entitled to the exclusive-remedy defense under the Act
because it had agreed to provide worker’s-compensation coverage to IMC’s employees.
Id. at *2.
As the appellee in Entergy argued, Lazo claims on appeal that ExxonMobil failed to
establish as a matter of law that there was an agreement between Mundy and
ExxonMobil. We hold that ExxonMobil did prove the existence of an agreement. The
agreement in this case, entitled Continuing Services Agreement 62290, stated the
agreement was between Mundy and an entity called Procurement, which is a division of
ExxonMobil Global Services. Lazo focuses on the fact that the agreement was between
Mundy and ExxonMobil Global Services, rather than ExxonMobil Corporation. However,
the agreement provided that any affiliate of ExxonMobil Global Services might from time to
time issue work orders under the agreement and that each work order would constitute a
separate legal contract between the affiliate issuing the work order and Mundy. It is not
disputed that, at the time of Lazo’s injury, Mundy was performing services for ExxonMobil
at the Baytown refinery. In section 13.2 of this agreement, ExxonMobil agreed it could
provide workers’-compensation insurance for Mundy’s employees. Attached to
ExxonMobil’s motion for summary judgment was the affidavit of Tara B. Clausen, an
insurance advisor for ExxonMobil. In this affidavit, Clausen testified that ExxonMobil did
provide this insurance and Mundy employees were covered under the ExxonMobil AOwner
Controlled Insurance Program.” A copy of the insurance policy was also attached to the
motion for summary judgment. Clausen stated in her affidavit that, as outlined in section
13.2 of the Continuing Services Agreement, ExxonMobil had notified Mundy it would
purchase the policy and it reduced Mundy’s compensation by an amount equal to the cost
of the policy. Lazo received benefits under this workers’-compensation policy purchased
by ExxonMobil. We hold that the proof submitted by ExxonMobil satisfied the written-
agreement requirement under the contract.
The summary-judgment proof established the existence of a written agreement for the
provision of workers’-compensation coverage. The next inquiry is whether ExxonMobil
established that it fell within the statutory definition of “general contractor.”
The Legislature defines “general contractor” as a “person who undertakes to procure the
performance of work or a service, either separately or through the use of subcontractors.”
Tex. Lab. Code Ann. §406.121(1) (Vernon 2006). In Entergy, the supreme court held that
a premises owner, such as ExxonMobil, can be one who “undertakes to procure the
performance of work” and thus, can be a general contractor under the statute. 2009 WL
884906 at *3. The court first looked to the common meaning of the terms “undertake” and
“procurement,” and held Aa general contractor is a person who takes on the task of
obtaining the performance of work.” Id. The court found this definition does not exclude
premises owners and it described exactly Entergy’s action of contracting with IMC for IMC
to perform maintenance work at Entergy’s Bay City plant. Id.
This is analogous to ExxonMobil’s action in this case. ExxonMobil contracted with Mundy
for the performance of work at its Baytown refinery. Because ExxonMobil procured the
performance of work by Mundy and its employees, including Lazo, ExxonMobil falls within
the definition of a “general contractor” under the statute. See id. Because ExxonMobil
established it was a general contractor that entered into an agreement with Mundy to
provide worker’s compensation coverage to Mundy’s employees, it is deemed to be an
employer for the purposes of the Act. See Tex. Lab. Code Ann. §406.123(e) (Vernon
Accordingly, we hold that ExxonMobil met its burden of establishing that it was a general
contractor and a statutory employer, entitled to the exclusive-remedy defense under the
statute. See Tex. Lab. Code Ann. §408.001 (Vernon 2006). Because we hold that
ExxonMobil met its burden of proof on the issues of whether it was a general contractor
and a statutory employer, we find no merit in Lazo’s first two issues.
Lazo’s next two issues concern ExxonMobil’s alternative basis for summary judgment, that
Lazo’s claims were preempted by federal law. Because the judgment may be upheld on
the exclusive-remedy defense, we need not address Lazo’s third and fourth issues.
We affirm the trial court’s judgment.
/s/ Jeffrey V. Brown
Panel consists of Justices Yates, Brown and Boyce.