Guillermina Mosqueda v. G & H Diversified MFG., Inc., Edward Kash , Kash Family Partnership and Kash Holdings, L.L.C.--Appeal from 281st District Court of Harris County

Affirmed and Majority, Concurring, and Dissenting Opinions filed January 31, 2007

Affirmedand Majority, Concurring, and Dissenting Opinions filed January 31, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-04-00183-CV

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GUILLERMINA MOSQUEDA, Appellant

V.

G & H DIVERSIFIED MFG., INC., EDWARD KASH, KASH FAMILY PARTNERSHIP and KASH HOLDINGS L.L.C., Appellees

On Appeal from 281st District Court

Harris County, Texas

Trial Court Cause No. 02 14362

C O N C U R R I N G O P I N I O N

Like other jurists before me, I take Athe unusual, but not unprecedented, step of concurring to my own opinion in order to add some further observations.@ Thurman v. State, 861 S.W.2d 96, 101 (Tex. App.CHouston [1st Dist.] 1993, no pet.); see also Vargas v. State, 838 S.W.2d 552, 557B58 (Tex. Crim. App. 1992) (Benavides, J., concurring to his own majority opinion).

In his dissenting opinion in Hoffman, Chief Justice Walker justifiably expressed his frustration with the Supreme Court=s failure to Acandidly and expressly overrule prior holdings.@ See Hoffman v. Trinity Indus., Inc. 979 S.W.2d 88, 92 n.4 (Tex. App.CBeaumont 1998, pet. dism=d) (Walker, C.J., dissenting). I note, however that this is a complicated area of the law. In its motion for JNOV, G & H contends Mosqueda failed to adduce evidence that the right of control provisions in the contract between Pacesetter and G & H were a sham. In other words, to avoid the contract, Mosqueda was required to present evidence that the parties ignored the right of control provisions. The requirement of proof that right of control provisions are a sham was first announced in Newspaper Inc. v. Love, 380 S.W.2d 582, 590 (Tex. 1964). This case and the authority cited by the Court in support of the rule involved liability for injury to third parties, not an employer=s liability for injury to an employee. The statutory and common law relative to an employer=s legal duties to an employee has evolved significantly since the 1960's. Considering the non-delegable duties assigned to employers and the fact that worker=s compensation insurance is not mandatory in Texas, our courts should proceed with caution in defining the circumstances under which putative employers might be allowed to execute agreements shifting or attempting to circumvent financial responsibility.

/s/ Charles Seymore

Justice

Judgment rendered and Majority, Concurring, and Dissenting Opinions filed January 31, 2007.

Panel consists of Justices Edelman, Frost, and Seymore. (Seymore, J., majority) (Edelman, J., dissenting).