IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-10981

Summary Calendar

JOSHUA DAVID POYNOR,

Plaintiff-Appellee

v.

MITSUBISHI POWER SYSTEMS AMERICAS, INCORPORATED,

Defendant-Appellant

Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 2:09-CV-308 

Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.

PER CURIAM:*

Joshua David Poynor lost portions of two fingers when a propeller blade

on a wind turbine he was servicing smashed his hand. He sued Mitsubishi

Power Systems, alleging that the company’s negligence caused the injury. The

issue presented in this appeal is whether Poynor was a “borrowed employee” of

Mitsubishi at the time of the accident. The answer to that question determines

United States Court of Appeals

Fifth Circuit

F I L E D

June 6, 2012

Lyle W. Cayce

Clerk

 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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which employer pays. A jury found that Mitsubishi must pay because it was

negligent and had not borrowed Poyner from his employer. We AFFIRM.

FACTS

Mitsubishi was hired to repair and maintain a number of wind turbines

in the Texas panhandle. This work included periodic washing of the turbines.

Mitsubishi hired a sub-contractor, Lone Star Line Services, to perform that task. 

Poynor was one of Lone Star’s employees. 

On August 12, 2009, Poynor was ordered by his supervisor to assist a

Mitsubishi technician with rotating a turbine’s blades. The blades had to be

adjusted before Lone Star could safely clean the turbine. At some point – the

exact moment is unclear – Poynor’s hand was crushed by the machinery. He lost

parts of two of his fingers. 

Based on diversity of citizenship, Poynor filed a negligence action under

Texas law against Mitsubishi in the United States District Court for the

Northern District of Texas. He alleged that the Mitsubishi technician released

the blade brakes in violation of the safety procedures. A jury found Mitsubishi

to be liable. It specifically found that Poynor was not working as a borrowed

employee of Mitsubishi. Mitsubishi moved for judgment as a matter of law or,

in the alternative, for a new trial. The district court denied these requests. 

From these denials, Mitsubishi appeals. 

DISCUSSION

We review a district court’s denial of a motion for judgment as a matter of

law de novo. Bohnsack v. Varco, L.P., 668 F.3d 262, 272 (5th Cir. 2012). This

type of motion “should be granted if there is no legally sufficient evidentiary

basis for a reasonable jury to find for a party.” Id. To see if there is enough

support, “[w]e must review all of the evidence in the record, draw all reasonable

inferences in favor of the nonmoving party, and may not make credibility

determinations or weigh the evidence.” Phillips v. Leggett & Platt, Inc., 658 F.3d

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452, 455 (5th Cir. 2011) (quotation marks and citation omitted). The evidence

that favors the moving party that the jury is not required to believe must be

disregarded. Caboni v. General Motors Corp., 398 F.3d 357, 359 (5th Cir. 2005). 

From this evidence, a jury may draw reasonable inferences “and those inferences

may constitute sufficient proof to support a verdict.” Wackman v. Rubsamen,

602 F.3d 391, 399 (5th Cir. 2010) (quotation marks and citation omitted). “We

must not substitute for the jury’s reasonable factual inferences other inferences

that we may regard as more reasonable.” McBeth v. Carpenter, 565 F.3d 171,

176 (5th Cir. 2009) (quotation marks and citation omitted).

We review “the denial of a motion for new trial for a clear showing of abuse

of discretion.” Garriott v. NCsoft Corp., 661 F.3d 243, 247 (5th Cir. 2011). This

standard is more deferential than our review of a denial of a motion for

judgment as a matter of law. Wackman, 602 F.3d at 399. As a consequence, our

review of a denial of a motion for new trial “is subsumed in our analysis of the

denial of a motion for judgment as a matter of law.” Id.

A suit for personal injuries in tort against an employer is not allowed when

the workers compensation regime provides a remedy. See Exxonmobil Corp. v.

Kirkendall, 151 S.W.3d 594, 599 (Tex. App.—San Antonio 2004, pet. denied). 

“Recovery of workers’ compensation benefits is the exclusive remedy” in that

situation. Tex. Lab. Code § 408.001(a). Much can turn on whether a person is

a company’s employee. The complication in our case is that “a general employee

of one employer may, in a particular situation, become the borrowed servant of

another.” Tex. Prop. & Cas. Guar. Ass’n v. Nat’l Am. Ins. Co., 208 S.W.3d 523,

542 (Tex. App.—Austin 2006, pet. denied). 

To determine whether an employee was a borrowed servant at the time of

the accident, Texas courts inquire into which employer had the right to control

the employee. Id. at 542-43. “Under the right-of-control test, an injured worker

is held to be the employee of the employer who had the right of control over the

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details of the work at the time of the injury.” Phillips v. Am. Elastomer Prods.,

L.L.C., 316 S.W.3d 181, 187 (Tex. App.— Houston [14th Dist.] 2010, pet. denied).

The parties agree that Lone Star was Poynor’s general employer. 

Mitsubishi asserted, but Poyner denied, that it had the right to control Poynor

at the moment of injury. The jury had to make a decision based on the facts and

circumstances presented at trial. See Tex. Prop., 208 S.W.3d at 543-44.

The relevant portions of the record support the conclusion that Lone Star

retained control of Poynor at the time of the accident. Testimony established

that Poynor entered the turbine at the direction of Lone Star in order to assist

a Mitsubishi technician in moving the blades. The blades had to be moved to

allow Lone Star to clean the turbine. The record also demonstrates that Poynor

continued to answer to his Lone Star supervisor throughout the day. 

While there is other evidence that could favor Mitsubishi, the jury is

entitled to use its reasonable judgment to reach a rational conclusion based upon

the evidence presented. See Brown v. Parker Drilling Offshore Corp., 410 F.3d

166, 182-83 (5th Cir. 2005). A motion for judgment as a matter of law cannot be

granted simply because the evidence could support factual inferences different

than those found by the jury. 

AFFIRMED. 

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