Jimmy Joel Sisco v. Truck Insurance Exchange, et al.--Appeal from 170th District Court of McLennan County

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Sisco v. Truck Insurance Exchange /**/

IN THE

TENTH COURT OF APPEALS

 

No. 10-94-352-CV

 

JIMMY JOEL SISCO,

Appellant

v.

 

TRUCK INSURANCE EXCHANGE, ET AL.,

Appellees

 

From the 170th District Court

McLennan County, Texas

Trial Court # 92-1472-4

 

O P I N I O N

 

Jimmy Sisco appeals from a judgment denying his workers' compensation claims. Because we find the court correctly determined summary judgment motions, we affirm.

Before reciting the pertinent facts, a "cast of characters" is in order. JIMMY SISCO, who is the injured party, lives in Waco and is the owner and operator of a truck-tractor. ATLAS VAN LINES (Atlas) of Evansville, Indiana, is the fifth largest household mover in the United States. ACE WORLDWIDE, INC. (Ace Worldwide) is a Wisconsin corporation. ACE WORLDWIDE MOVING AND STORAGE COMPANY (Ace) is a moving and storage business in Dallas and is a local franchisee of Atlas. TRUCK INSURANCE EXCHANGE (Truck) is the compensation insurance carrier for Atlas. EMPLOYERS INSURANCE OF WAUSAU (Employers) is the carrier for Ace. Sisco, Atlas, Ace, Truck, and Employers are the parties to this suit. Ace Worldwide is not a party.

Sisco entered into a written agreement with Ace Worldwide and Ace to provide transportation services. The agreement he signed, as "Contractor," provided:

Nothing contained in this contract shall be deemed to create an agency, joint venture, partnership or any other legal relationship except that of principal and independent contractor.

Sisco admits that he read the agreement before he signed it and that he was not under duress when he signed it.

At the time of the incident in Lawrence, Kansas, in which Sisco was injured, the shipment he was handling had been "registered" by Ace in accordance with the shipper's instructions. Ace then contacted Atlas, which dispatched Sisco to go to the shipper's location, load the shipment, haul it to the destination, and unload it. The trailer he had moved to Lawrence was owned by Ace and had an Atlas logo on its side. Atlas owns no equipment. Although Atlas "qualifies" drivers who are to haul its shipments, the local agent is responsible for hiring and firing them. These arrangements are made under regulations adopted by the Interstate Commerce Commission to govern holders of its permits. The driver's share of the shipping charges is paid by the local agent in this case, Ace. Sisco said that he was paid a percentage of the shipping charges, not a salary. The summary judgment evidence establishes that Sisco owned the truck-tractor, paid for the expenses of repair and maintenance on it, paid his own social security taxes, and carried his own insurance on the vehicle.

Sisco was injured when a "walk board" fell on his foot, injuring the foot and toes. He alleged that the injury later "extended to and affected other parts of his body generally." After he was awarded benefits by the Texas Workers' Compensation Commission, Truck appealed to the district court. Sisco then filed a counterclaim against Ace, Atlas, Truck, and Employers, each of which filed a motion for summary judgment. The court granted the motions, without specifying the grounds on which they were granted. Sisco brought this appeal, asserting that the court erred.

The standards for reviewing a summary judgment are well established. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex. 1985). The movant has the burden of showing that no genuine issue of material fact exists and that it is entitled to the summary judgment as a matter of law. Id. The reviewing court must accept all evidence favorable to the non-movant as true. Id. at 548-49. Every reasonable inference must be indulged in favor of the non-movant and all doubts resolved in its favor. Id. at 549. A defendant who moves for a summary judgment without asserting an affirmative defense must disprove as a matter of law one or more of the elements essential to the plaintiff's cause of action. Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991). When an order granting a summary judgment does not specify the ground or grounds relied on, the summary judgment will be affirmed if any of the theories advanced are meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989).

Atlas, Ace, and their carriers rely on Newspapers, Inc. v. Love, 380 S.W.2d 582, 590 (Tex. 1964), to establish that the written contract expressly fixing Sisco's status as that of an independent contractor controls unless it was a subterfuge from the beginning or was persistently ignored or was modified by a later express or implied agreement of the parties. They say that we do not reach the standard test for determining whether one is acting in the capacity of an independent contractor, i.e., measuring the amount of control that the employer exerts or has a right to exert over the details of the work. Id. Because we are examining the question in a summary judgment context, we agree.

Issues that a non-movant contends should defeat a summary judgment motion must be expressly presented by written answer to the motion or other written response; they are not presented by mere reference to the summary judgment evidence. McConnell v. Southside Indep. School Dist., 858 S.W.2d 337, 341 (Tex. 1993). Sisco argues on appeal that the agreement was a subterfuge, but he did not include that assertion in his response to the motions for summary judgment. See id. He does not argue that the agreement was modified or ignored. Indeed, the summary judgment evidence shows that he abided by it. Given summary judgment motions that asserted the contract, the summary judgment evidence presented, and the lack of a response to the motions raising grounds for their defeat, the court properly granted the motions. See id.; Nixon, 690 S.W.2d at 548.

We affirm the order granting the motions for summary judgment.

BILL VANCE

Justice

 

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed August 23, 1995

Do not publish

 

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