Affirmed and Memorandum Opinion filed July 9, 2013.

In The

Fourteenth Court of Appeals

NO. 14-12-01048-CV

RAYMOND L. BROOKS, Appellant

V.

THE GOODYEAR TIRE & RUBBER CO., Appellee

On Appeal from the 189th District Court

Harris County, Texas

Trial Court Cause No. 2010-39442A

M E M O R A N D U M O P I N I O N

Appellant, Raymond Brooks, appeals the trial court‘s order granting 

traditional summary judgment in favor of appellee, The Goodyear Rubber & Tire 

Company, on its exclusive-remedy affirmative defense pursuant to the Texas Labor 

Code. We affirm.
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I. BACKGROUND

While working for Qualitech Maintenance, Inc. at the Goodyear facility in 

Houston, Brooks suffered work-related personal injuries to his hand, shoulder and 

knee. He alleged he was injured when Ronald Dunaway, a Goodyear employee, 

ran over Brooks while operating a ―4-wheeler all terrain vehicle in a backwards 

direction without a back up alarm and/or horn, on the premises of the Goodyear 

plant.‖ Brooks made a claim for benefits under Qualitech‘s workers‘

compensation policy and received medical benefits.

Subsequently, Brooks sued Dunaway and Goodyear alleging negligence. 

Goodyear pleaded the affirmative defense of the exclusivity provisions of the 

Texas Labor Code. Goodyear sought summary judgment on Brooks‘s claims 

against it, urging that the claims were barred because Goodyear was Brooks‘s 

―statutory employer.‖ 

In support of its traditional motion for summary judgment, Goodyear relied 

upon (a) an excerpt from Brooks‘s deposition; (b) the affidavit of Benjamin 

Ramsey, general counsel for Mundy Service Corporation, a company that provides 

administrative support to Qualitech; and (c) the ―Services Agreement for Contract 

Labor Between The Goodyear Tire & Rubber Company, Houston, Bayport &

Beaumont, Texas and Qualitech Maintenance, Inc.‖ (Services Agreement). 

By the deposition excerpt, Brooks testified that he made a workers‘

compensation claim for the injuries at issue in this case and received benefits. 

Ramsey testified in his affidavit, in pertinent part that:

As part of the Services Agreement, representatives of Qualitech 

Maintenance, Inc. and Goodyear made specific agreements regarding 

the procurement of workers‘ compensation coverage for Qualitech 

Maintenance, Inc. employees working at Goodyear, including 

Raymond L. Brooks, the Plaintiff in this lawsuit. Article 4.1.2(4) of 
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the Services Agreement required Goodyear to reimburse Qualitech 

Maintenance, Inc. for the actual cost of providing workers‘

compensation insurance for Qualitech Maintenance, Inc. employees 

working at Goodyear‘s facilities. Qualitech Maintenance, Inc. then 

procured workers‘ compensation coverage for the Qualitech 

Maintenance, Inc. employees paid for pursuant to the Services 

Agreement by Goodyear by expanding the coverage available under 

the Mundy Service Corporation‘s existing blanket policy for its entire 

worker pool to include Goodyear as a covered premises. As such, 

Goodyear has been in all ways responsible for reimbursement of costs 

of workers‘ compensation coverage to Qualitech Maintenance, Inc. 

for the Qualitech Maintenance, Inc. employees at the Goodyear 

facility and has dutifully reimbursed Qualitech Maintenance, Inc. 

according to the Services Agreement. 

Finally, Article 4 of the Services Agreement, entitled ―Compensation for 

Services,‖ shows the supplier Qualitech providing for workers‘ compensation 

insurance coverage.

Brooks responded to Goodyear‘s motion urging that Goodyear failed to 

adduce summary judgment evidence that it paid for the workers‘ compensation 

insurance. Brooks offered no summary judgment evidence.1 The trial court 

granted Goodyear‘s motion for summary judgment. 

II. ANALYSIS

In a single issue, Brooks appeals, arguing that the trial court erred because 

Goodyear failed to establish its affirmative defense. We affirm.2

 

1 Brooks also objected to Goodyear‘s evidence. The trial court‘s summary judgment 

order states that it has ―considered all summary judgment evidence herein.‖ We need not 

determine whether the trial court‘s statement is an implicit ruling on Brooks‘s evidentiary 

objections as Brooks does not assign error to any evidentiary point. See San Jacinto River Auth. 

v. Duke, 783 S.W.2d 209, 209–10 (Tex. 1990) (per curiam) (explaining that ―grounds of error 

not asserted by point of error or arguments to the court of appeals are waived‖).

2 Goodyear urges that Brooks failed to properly invoke the jurisdiction of this court with 

a timely notice of appeal. The trial court granted Goodyear‘s motion for summary judgment on 

July 29, 2011. The summary judgment order was interlocutory as claims remained against 
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A. Standard of Review

To be entitled to summary judgment under Rule 166a(c), a movant must 

establish that there is no genuine issue of material fact so that the movant is 

entitled to judgment as a matter of law. Mann Frankfort Stein & Lipp Advisors, 

Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We take as true all evidence 

favorable to the nonmovant and resolve any doubt in the nonmovant‘s favor. 

20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). We consider the 

evidence presented in the light most favorable to the nonmovant, crediting 

evidence favorable to the nonmovant if reasonable jurors could, and disregarding 

evidence contrary to the nonmovant unless reasonable jurors could not. Mann 

Frankfort Stein & Lipp Advisors, Inc., 289 S.W.3d at 848. A defendant moving for 

summary judgment on an affirmative defense must prove conclusively the

elements of the defense. Shah v. Moss, 67 S.W.3d 836, 842 (Tex. 2001). 

B. Exclusivity Defense Under The Texas Labor Code

The Texas Workers‘ Compensation Act (TWCA) was adopted to provide 

prompt remuneration to employees who sustain injuries in the course and scope of 

their employment. Hughes Wood Prods. v. Wagner, 18 S.W.3d 202, 206 (Tex. 

2000) (quoting Darensburg v. Tobey, 887 S.W.2d 84, 86 (Tex. App.—Dallas 1994, 

writ denied)). An employer has the option of providing workers‘ compensation 

insurance for employees and becoming a subscriber under the TWCA, or not 

 

Dunaway. The trial court granted Brooks‘s motion to sever on April 17, 2012, and severed the 

cause against Goodyear into a separate cause number, 2010-39442-A. Brooks filed a notice of 

appeal of that ―final judgment‖ in Cause No. 2010-39442 on March 23, 2012. The prematurely 

filed notice of appeal is effective as deemed filed on April 17, 2012. See TEX. R. APP. P. 27.1(a) 

(―In a civil case, a prematurely filed notice of appeal is effective and deemed filed on the day of, 

but after, the event that begins the period for perfecting the appeal.‖). This court also recognizes 

premature notices of appeal, filed in a cause pre-severance, as effective to appeal the 

interlocutory summary judgment made final by the severance. See Corcoran v. Atascocita Cmty. 

Improvement Ass’n, No. 14-12-00983-CV, 2013 WL 504051, at *1 (Tex. App.—Houston [14th 

Dist.] Feb. 12, 2013, no pet.) (mem. op.).
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providing workers‘ compensation insurance and remaining a nonsubscriber. TEX.

LAB. CODE ANN. § 406.002(a) (West 2006); Port Elevator-Brownsville, L.L.C. v. 

Casados, 358 S.W.3d 238, 241 (Tex. 2012); Briggs v. Toyota Mfg. of Tex., 337 

S.W.3d 275, 281 (Tex. App.—San Antonio 2010, no pet.). If the employer 

chooses not to subscribe, the employer may not assert common law defenses 

against an employee in a negligence suit. Briggs, 337 S.W.3d at 281; Hunt Constr. 

Group, Inc. v. Konency, 290 S.W.3d 238, 243 (Tex. App.—Houston [1st Dist.] 

2008, pet. denied). 

If the employer is a subscriber, the TWCA allows employees to recover 

workers‘ compensation benefits for injuries in the course and scope of employment 

without proving fault by the employer and without regard to their negligence or

that of their coworkers. Port Elevator-Brownsville, L.L.C., 358 S.W.3d at 241. In 

exchange, the TWCA prohibits an employee from seeking common law remedies 

from his employer for personal injuries sustained in the course and scope of his 

employment. Hughes Wood Prods., 18 S.W.3d at 207 (quoting Darensburg, 887 

S.W.2d at 86). ―Recovery of workers‘ compensation benefits is the exclusive 

remedy of an employee covered by workers‘ compensation insurance coverage or a 

legal beneficiary against the employer or an agent or employee of the employer for 

the death of or a work-related injury sustained by the employee.‖ TEX. LAB. CODE 

ANN. § 408.001(a) (West 2006). The exclusive-remedy provision is an affirmative 

defense. Warnke v. Nabors Drilling USA, L.P., 358 S.W.3d 338, 343 (Tex. App.—

Houston (1st Dist.) 2011, no pet.). 

The exclusive-remedy defense provided to subscribing employers is also 

afforded to a general contractor if, pursuant to a written agreement, it ―provides‖

workers‘ compensation insurance coverage to the subcontractor and its employees. 

HCBeck, Ltd., v. Rice, 284 S.W.3d 349, 350 (2009) (citing TEX. LAB. CODE ANN. 

§§ 406.123(a), 408.001(a)). If the general contractor ―provides‖ workers‘
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compensation insurance, it becomes a statutory employer of the subcontractor‘s 

employees. Id. at 352 (citing TEX. LAB. CODE ANN. § 406.123(e)). The sole 

question presented by this appeal is whether Goodyear is Brooks‘s statutory 

employer entitled to the exclusive-remedy defense. Because exclusive remedy is 

an affirmative defense, Goodyear had the burden to conclusively establish its 

entitlement to judgment. See Shah, 67 S.W.3d at 842 (providing that a defendant 

moving for summary judgment on an affirmative defense must prove conclusively 

the defense‘s elements). 

C. Goodyear “Provided” Workers’ Compensation Insurance

Recently, the Texas Supreme Court conducted an extensive statutory 

analysis of the meaning of the term ―provided‖ in section 406.123 of the Texas 

Labor Code—the specific provision at issue in this case. In HCBeck, Ltd., the 

Texas Supreme Court considered ―the extent to which a general contractor must 

 ̳provide‘ workers‘ compensation insurance under the [TWCA] to qualify for 

statutory employer status and the resulting immunity from the work-related claims 

of a subcontractor‘s employees‖ under section 406.123(a). 284 S.W.3d at 350. 

The parties did not dispute that HCBeck entered into a contract with FMR by 

which FMR was to provide insurance on the project under an Owner Controlled 

Insurance Program (OCIP). Id. HCBeck and all subcontractors working on the 

project were contractually required to enroll in the OCIP. Id. The injured worker, 

an employee of a subcontractor, sued HCBeck. The Supreme Court rejected the 

argument that HCBeck was not the worker‘s statutory employer because HCBeck 

did not ―obtain the insurance‖ or pay for the insurance directly. Id. at 353–54. 

Instead, HCBeck ―provided‖ workers‘ compensation insurance to the subcontractor 

because it entered into a written agreement to provide workers‘ compensation 

insurance coverage and ―contracted to pay for [the subcontractor‘s] insurance 
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through its agreement to pay the  ̳Subcontract Amount.‘‖ Id. at 358. The statutory 

language did not permit a more narrow construction of ―provide‖ because the

Legislature rejected the term ―subscriber.‖ Id. at 357. And, the court determined 

that the broader construction of the term ―provide‖ achieves the Legislative 

purpose to ensure that subcontractors‘ employees receive the benefit of workers‘

compensation insurance. Id. at 350.

This case is indistinguishable from HCBeck. Goodyear‘s summary 

judgment evidence establishes that:

Goodyear had a written contract that provided for workers‘

compensation insurance for Qualitech employees.

Brooks was a Qualitech employee.

Qualitech purchased workers‘ compensation coverage for its 

employees, including Brooks.

Goodyear contractually obligated itself to reimburse Qualitech 

for the insurance premiums paid for the Qualitech workers‘

compensation insurance for workers‘ at Goodyear facilities, 

including Brooks.

Goodyear reimbursed Qualitech for the insurance premiums 

paid for the Qualitech workers‘ compensation insurance for 

workers‘ at Goodyear facilities.

Brooks urges that this case is more analogous to Valdez v. MEMC Pasadena, 

Inc., No. 01-09-00778-CV, 2011 WL 743099 (Tex. App.—Houston [1st Dist.] 

Mar. 3, 2011, no pet.) (mem.). In Valdez, our sister court held that merely 

requiring a subcontractor to maintain workers‘ compensation coverage is 

insufficient unless the general contractor has paid for or reimbursed the workers‘

compensation premiums. Id. at *4. We need not agree or disagree with the 

holding in Valdez, as the summary judgment evidence in this case conclusively 

establishes that Goodyear was contractually obligated to reimburse for the 

workers‘ compensation premiums and complied with that contractual obligation.
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Therefore, HCBeck controls the disposition of this case. In the absence of a 

genuine issue of fact regarding whether Goodyear ―provided‖ workers‘

compensation insurance under a written agreement, the trial court correctly granted 

Goodyear‘s motion for summary judgment.

III. CONCLUSION

Having overruled Brooks‘s single issue, we affirm.

/s/ Sharon McCally

Justice

Panel consists of Justices Brown, Christopher, and McCally.