Balderas v. Hous. Foam Plastics, Inc.

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BERTOLDO BALDERAS, AS NEXT FRIEND OF RIGOVERTO BALDERAS, Appellant v. HOUSTON FOAM PLASTICS, INC., Appellee

No. 01-20-00755-CV

Court of Appeals of Texas, First District

November 29, 2022

On Appeal from the 151st District Court Harris County, Texas Trial Court Case No. 2017-78322

Panel consists of Justices Kelly, Countiss, and Rivas-Molloy.

MEMORANDUM OPINION

Julie Countiss, Justice

Appellant Bertoldo Balderas, as next friend of Rigoverto Balderas ("Rigoverto"), challenges the trial court's rendition of summary judgment in favor of appellee, Houston Foam Plastics, Inc. ("Houston Foam"), in Balderas's suit against Houston Foam for negligence and gross negligence. In four issues, Balderas contends that the trial court erred in granting Houston Foam summary judgment and failing to continue the abatement of his suit. We affirm in part and dismiss in part.

Background

In his petition, filed on November 21, 2017, Balderas alleged that "[o]n or about December 5, 2015," Rigoverto entered into a "Client Services Agreement" (the "CSA") with Job Express of Wyoming Incorporated doing business as Port City Staffing ("Port City Staffing"). The CSA stated that "Port City Staffing would provide temporary employees with certain skills and abilities to [Houston Foam]." (Internal quotations omitted.) Rigoverto, who "was an employee of Port City Staffing at all relevant times," was assigned to Houston Foam to work as a forklift operator.

Under the CSA, Port City Staffing agreed to perform various duties as Rigoverto's employer, including "hiring assigning, reassigning, counseling, disciplining, and discharging" Rigoverto. (Internal quotations omitted.) "Port City Staffing also calculated [Rigoverto's] worker's compensation coverage." The CSA gave Port City Staffing "the election for workers' compensation coverage of its employees [as] set out in [Texas Labor Code] Chapter 93." And the CSA provided that "additional job descriptions for the temporary employees must be submitted to Port City Staffing for review prior to placing" an employee in "a new position." (Internal quotations omitted.)

Although Rigoverto was assigned to work at Houston Foam as a forklift operator, on or about December 14, 2015, Houston Foam assigned Rigoverto to work at one of its locations as a grinder operator, without notice to or permission from Port City Staffing. On the morning of December 17, 2015, Rigoverto was given a "large plastic sack" and was instructed to fill it with scrap plastic foam pieces. Rigoverto was then to place the foam pieces into the plastic grinder machine to break them down into small pellets that could be recycled. While Rigoverto was working at the plastic grinder, its interior spokes caught on the handles of Rigoverto's large plastic sack, which pulled Rigoverto's upper torso, head, and arms into the plastic grinder, causing serious injury. Rigoverto underwent multiple surgeries and was eventually discharged from the hospital to a rehabilitation facility for long-term care. He still resides at the rehabilitation facility and requires around-the-clock care.

Balderas alleged that Houston Foam violated the CSA by giving Rigoverto, "who was sent to [Houston Foam] with a job description of forklift operator, the task of . . . grinder operator at a plastic grind[er]," which was at a different location than where Rigoverto had originally been assigned to work, without notice to Port City Staffing. Rigoverto did not receive "adequate training in the operation and feeding of the [plastic] grind[er]," which also was in an "unsafe location." And Houston Foam knew that the plastic grinder was defective and "its operation was inherently and unreasonably dangerous and resulted in a dangerous activity" on Houston Foam's premises. But Houston Foam "failed to warn [Rigoverto]" of the plastic grinder's "inherently dangerous propensities" and "to provide [Rigoverto] with the necessary instrumentalities," training, and supervision to safely operate the plastic grinder.

Balderas brought claims for negligence and gross negligence against Houston Foam, and he sought damages for Rigoverto's past and future pain and suffering, past and future physical and mental impairment, past and future medical expenses, loss of past and future employment, and exemplary damages. Together with his petition, Balderas filed a plea in abatement and a motion to abate, requesting that the trial court abate his suit against Houston Foam because Houston Foam "may assert . . . [an] exclusive remedy defense" under the Texas Workers' Compensation Act ("TWCA") and "issues" related to "[an] exclusive remedy defense[]" were "pending before" the Texas Department of Insurance ("TDI") - Division of Workers' Compensation ("TDI-DWC").

Houston Foam answered, generally denying the allegations in Balderas's petition and asserting that Rigoverto's injuries were caused by Rigoverto's negligence, including his being "legally intoxicated at the time of" his injury, his failure "to use proper methods and equipment" for safely operating the plastic grinder, and his failure "to keep his body a safe distance from the moving parts of" the plastic grinder. Houston Foam also asserted that Balderas's claims were "barred under the exclusive remedy provisions" of Texas Labor Code chapters 93 and 408.^[1]Balderas then filed an amended motion to abate on January 30, 2018. As grounds for abatement, Balderas alleged that Rigoverto's employer-Port City Staffing-was a "nonsubscriber"^[2] under the TWCA on December 17, 2015-the date that Rigoverto was injured. (Internal quotations omitted.) According to Balderas, Port City Staffing's status on that date was documented on the TDI's website. But "a significant number of discrepancies between the alleged workers' compensation carrier filings with" the TDI-DWC, Houston Foam's "filings with the [Occupational Safety and Health Administration], together with the lack of [workers' compensation subscriber] filings by Port City Staffing[,] [were] disputed issues" that were then pending before the TDI-DWC appeals panel, which had primary jurisdiction and "exclusive statutory authority" to determine the issue of coverage for worker benefits. Abatement of Balderas's suit was required because Houston Foam had "plead[ed] the 'exclusive remedy' of workers' compensation defense," which was "contingent upon a finding of coverage and benefits under the [TWCA]."

In his amended motion to abate, Balderas indicated that in September 2017, at the TDI-DWC hearing, an administrative law judge ("ALJ") issued a decision which determined that, at the time that Rigoverto was injured: (1) Rigoverto's employer was CorTech, LLC ("CorTech");^[3] (2) Rigoverto was a covered employee under the TWCA; and (3) Rigoverto was in a state of alcohol intoxication.^[4] That decision was adopted by an administrative appeals panel.^[5] And Balderas sought judicial review of the administrative appeals panel's decision in Harris County District Court (the "judicial review case").^[6]

According to Balderas, his negligence and gross negligence claims against Houston Foam were "related to the issues" then pending in the judicial review case because Houston Foam's affirmative defense that the "exclusive remedy" under the TWCA barred Balderas's claims was "contingent upon a finding of coverage and benefits under the [TWCA]," which was an issue that was pending "on appeal" in the judicial review case. (Internal quotations omitted.) Thus, "[t]he doctrine of primary jurisdiction require[d] th[e] [trial] [c]ourt to abate [Balderas's] suit [against Houston Foam] until the administrative proceedings, including [the] judicial review [case], . . . bec[a]me final."

On February 7, 2018, the trial court signed an "Agreed Order of Abatement," in which it ordered that Balderas's suit be "abated until August 13, 2018" and required Balderas to file a notice about the status of the judicial review case on or before August 3, 2018. "If further abatement [was] required," the trial court directed Balderas to "submit a proposed order accordingly."

The trial court lifted its abatement order on August 21, 2018, but on September 25, 2018, after Balderas filed a motion to reconsider and continue abatement, the trial court signed an order abating Balderas's suit against Houston Foam "until such time as [the judicial review case], including final appellate judicial review [was] concluded."

On May 5, 2020, Balderas filed a status report notifying the trial court that after a jury trial in the judicial review case, the trial court in that case had entered its final judgment against Balderas on March 9, 2020, and he had appealed that judgment. At that time, an appeal was pending in the Fourteenth Court of Appeals.^[7]

On May 12, 2020, Houston Foam filed a motion to discontinue the abatement, requesting that the trial court lift the abatement and allow Houston Foam to file a motion for summary judgment. It pointed out that both the TDI-DWC and the trial court in the judicial review case had determined "that [Rigoverto] was covered under a policy of workers' compensation insurance provided by the staffing company." Based on that determination, Houston Foam was entitled to "summary judgment based on the [Texas Labor Code's] exclusive remedy provision[]." And "[e]ven if th[e] [trial court's] judgment [in the judicial review case] w[as] ultimately reversed," Houston Foam argued that it was "still entitled to summary judgment because it too was a subscriber to workers' compensation insurance" and thus was "entitled to" the protection of "the exclusive remedy provision[]" which barred Balderas's claims against it.

In its motion, Houston Foam recounted the procedural history of the judicial review case in detail,...