*Local Rule 47.5 provides: "The publication of opinions

that have no precedential value and merely decide particular

cases on the basis of well-settled principles of law imposes

needless expense on the public and burdens on the legal

profession." Pursuant to that Rule, the court has determined

that this opinion should not be published.

1

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-40250

_____________________

JOHN A. BARNES,

Plaintiff-Appellant,

v.

CALGON CORPORATION and

MOBIL OIL CORPORATION,

Defendants,

CALGON CORPORATION,

Defendant-Appellee.

_________________________________________________________________ 

Appeal from the United States District Court

for the Eastern District of Texas

(1:93 CV 616)

_________________________________________________________________

September 21, 1995

Before KING, SMITH, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant John A. Barnes filed suit for negligence
2

against Calgon Corporation and Mobil Oil Corporation in state

court in Jefferson County, Texas, alleging that he was injured

when he was overcome by fumes while washing the tank of Calgon's

chemical transport vehicle. After timely removal to the federal

district court for the Eastern District of Texas, the court

granted defendant Calgon Corporation's motion for summary

judgment on the grounds that Calgon was Barnes's employer and

thus insulated from liability under the exclusive remedy

provision of the Texas Workers' Compensation Act. Barnes timely

appealed. Because we agree that Calgon is entitled to summary

judgment, we affirm.

I. FACTUAL AND PROCEDURAL HISTORY

Plaintiff-Appellant John A. Barnes was, at all times

relevant to the current action, a truck driver who, for

approximately twelve years, was employed by Southwestern

Professional Truck Driver Service, a division of Pacemaker Driver

Service, Inc. ("Pacemaker"). In 1980, Pacemaker, through

Southwestern Professional Truck Driver Service, contracted with

Calgon Corporation ("Calgon") to provide Calgon with truck

drivers. In this contract, Pacemaker agreed to retain most

administrative employment functions, such as bonding the drivers,

disciplining and removing employees, maintaining regulatory

reports, records, and data, paying the drivers' wages, benefits

and workers' compensation insurance, maintaining employment and

payroll records, and providing cash advances for drivers. 
 

1 Barnes also named Mobil as a defendant, but

subsequently dismissed his claim against Mobil after reaching

settlement with that defendant.

 

2 Calgon filed a third-party complaint against Pacemaker,

seeking indemnity from Pacemaker for Barnes's claims against

Calgon. The district court granted Calgon's motion for summary

judgment against Pacemaker, and held that Pacemaker was obligated

to indemnify Calgon for its legal fees.

3

Pacemaker also agreed to indemnify Calgon for all claims by its

employees against Calgon. The contract assigned Calgon the

responsibility to "dispatch, direct the loading and unloading of

vehicles; select routes, direct the drivers as to pick-ups,

deliveries, and other matters related to the day to day operation

of the vehicles utilized by Calgon." Calgon also assumed the

responsibility to maintain records, check drivers' logs and

reports, and provide and insure the vehicles. Pursuant to this

contract, Barnes drove for Calgon during the entire course of his

twelve-year employment with Pacemaker. 

On May 20, 1993, Barnes delivered a load of ChlorKill 8816

from Calgon's facilities in LaPorte, Texas, to Mobil's operations

in Beaumont, Texas. After unloading the chemicals, Barnes was

injured when he was overcome by fumes while washing the inside of

the tank in preparation for a new load of chemicals. Barnes

alleges that Calgon is liable in negligence for his injuries by

failing to instruct him, supervise him, provide him with

necessary safety equipment and information, and provide him with

a safe working environment.1 Barnes sought damages for medical

expenses, pain and suffering, and loss of income.2

Calgon moved for summary judgment on two grounds. First,
4

Calgon argued that Barnes's claim against it was barred by the

exclusive remedy provision of the Texas Workers' Compensation

Act. Second, Calgon argued that any injuries incurred by Barnes

were entirely the result of his own negligence and not any

negligence by Calgon.

In an opinion filed on December 15, 1994, the district court

granted Calgon's motion for summary judgment. First, concluding

that "[c]ourts look to specific facts of a case only when no

contract exists or when the contract terms are ambiguous as to

which party has the right to control the employee", the district

court held that "the contract itself conclusively establishes

that plaintiff was an employee of Calgon for purposes of the

Workers' Compensation Act." Second, the district court held

that, under Texas law, even if Barnes is considered a "borrowed

servant," Calgon is considered his employer and therefore

shielded from liability under the Workers' Compensation Act. 

Having concluded that Calgon is immune from liability as a matter

of law, the district court did not address Calgon's second

argument, and entered judgment in favor of Calgon.

 II. STANDARD OF REVIEW

We review the granting of summary judgment de novo, applying

the same criteria used by the district court in the first

instance. Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th Cir.

1994); Conkling v. Turner, 18 F.3d 1285, 1295 (5th Cir. 1994).

First, we consult the applicable law to ascertain the material
5

factual issues. King v. Chide, 974 F.2d 653, 655-56 (5th Cir.

1992). We then review the evidence bearing on those issues,

viewing the facts and inferences to be drawn therefrom in the

light most favorable to the nonmoving party. Lemelle v.

Universal Mfg. Corp., 18 F.3d 1268, 1272 (5th Cir. 1994); FDIC v.

Dawson, 4 F.3d 1303, 1306 (5th Cir. 1993), cert. denied, 114 S.

Ct. 2673 (1994). Summary judgment is proper "if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law." FED. R. CIV. P.

56(c).

Under Rule 56(c), the party moving for summary judgment

bears the initial burden of informing the district court of the 

basis for its motion and identifying the portions of the record

that it believes demonstrate the absence of a genuine issue of

material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986); Norman v. Apache Corp., 19 F.3d at 1023. If the moving

party meets its burden, the burden shifts to the non-moving party

to establish the existence of a genuine issue for trial. 

Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 585-87

(1986); Norman, 19 F.3d at 1023. The burden on the non-moving

party is to do more than simply show that there is some

metaphysical doubt as to the material facts. Matsushita, 475

U.S. at 586.
3. See Tex. Rev. Civ. Stat. Ann. art. 8308-4.01, recodified as

Tex. Lab. Code Ann. § 408.001 (Vernon Pamph. 1995). The new

statute became effective September 1, 1993; however, the injury

in question occurred on May 20, 1993.

6

III. DISCUSSION

The sole issue on appeal in this case is whether the

district court correctly decided that Pacemaker is Barnes's

employer for the purposes of recovery for a workplace injury, and

thus immune from liability pursuant to the exclusive remedy

provision of the Texas Workers' Compensation Act.3

All parties involved agree that, under Texas law, the

employer of Barnes is the entity that had "day to day" control

over the details of Barnes's work. See, e.g., Smith v. Otis

Eng'g Corp., 670 S.W.2d 750, 751 (Tex. App. -- Houston [1st

Dist.] 1984, no writ]. Similarly, the determination of whether

an employee is a "borrowed servant" under Texas law -- thus

rendering the company that is "borrowing" the employee the

employer for purposes of the Workers' Compensation Act -- depends

on which employer had the right of control and direction over the

details and manner of the employee's daily work at the time of

the accident. Id. This is a question of fact. Id.

In this case, the district court held that the summary

judgment evidence established, as a matter of law, that Calgon

had such control over the details of Barnes's work so as to

render it Barnes's employer under Texas law. In so holding, the

district court relied exclusively on the terms of the contract

that governed the relationship between Pacemaker and Calgon. 
 

4 The district court distinguished this decision of the

Supreme Court of Texas as "a limited holding that addressed the

difficult question of determining right to control in cases where

employees are furnished with certain types of machinery to

perform specific aspects of a contract." We read no such

limiting language into the decision.

7

This contract specifies, in Part II, ¶ 1, that Calgon will

"dispatch, direct the loading an downloading of vehicles; select

routes, direct the drivers as to pick-ups, deliveries and other

matters related to the day to day operation of the vehicles

utilized by Calgon." Because the court viewed the contract

between Pacemaker and Calgon as "expressly assigning the right to

control," the district court concluded that it would be improper

to consider evidence outside of the contract itself. 

However, Texas law is clear that "a contract between two

employers providing that one shall have the right of control over

certain employees is a factor to be considered, but it is not

controlling" in determining whether an entity is an employer for

the purposes of the exclusive remedy provision of the Texas

Workers Compensation Act. Exxon Corp. v. Perez, 842 S.W.2d 629,

630 (Tex. 1992) (opinion on motion for rehearing).4 Although the

district court cited Archem Co. v. Austin Indus., Inc., 804

S.W.2d 268, 269 (Tex. App.--Houston [1st Dist.] 1991, no writ)

for its conclusion that an unambiguous contract forecloses

further inquiry into the factual circumstances surrounding the

employment relationship, Archem merely stands for the proposition

that "if a contract between a general and special employer

expressly provides that one party has the `right to control' the
8

employee, then that employer . . . is entitled to the Act's

protection from liability for negligence," and does not state

that courts are prohibited from investigating into the

circumstances of the case apart from the words of the contract. 

Id. (internal citation omitted). In fact, courts are always

obligated to "review the facts of each case to determine which

entity had the `right to control' the employee's activities." 

Id. at 270. 

Nonetheless, even though the court was obligated to look

outside the confines of the contract to determine who was in

control of Barnes's day to day activities, Barnes has submitted

no evidence to establish a genuine issue of material fact that

the contract between Pacemaker and Calgon did not reflect the

true relationship between the parties. Rather, Barnes, for the

most part, relies only on sworn affidavits stating that he

reported daily to his supervisors at Pacemaker rather than

Calgon, that he selected his own routes, and that his behavior

was circumscribed only by the contract that governed his

relationship with Pacemaker. In other words, Barnes argues that,

by taking directions on his day to day activities from Calgon,

his day to day activities were in fact being controlled by

Pacemaker. Because, in this manner, he concedes that it was in

fact Calgon that directed his daily activities, Barnes has failed

to establish a genuine issue of material fact to preclude the

court from granting summary judgment on behalf of Calgon. The

district court's granting of summary judgment in favor of Calgon
9

was proper.

IV. CONCLUSION

For the reasons stated above, after consideration of the

contract and of all other evidence submitted by the parties, we

conclude that the district court correctly determined that Calgon

was Barnes's employer for the purposes of the exclusive remedy

provision of the Texas Workers' Compensation Act, and we

therefore

AFFIRM.