NO. 11-12-00322-CV

IN THE COURT OF APPEALS

FOR THE

EIGHTH COURT OF APPEALS DISTRICT OF TEXAS

EL PASO, TEXAS

STEVEN PAINTER; TONYA WRIGHT, Individually and as Representative of the 

ESTATE OF EARL A. WRIGHT, III, DECEASED; VIRGINIA WEAVER, Individually and 

As Next Friend of ALBERT A. CARILLO, A MINOR; TABITHA R. ROSELLO,

Individually and as Representative of the ESTATE OF ALBERT CARILLO, DECEASED

Appellants,

V. 

AMERIMEX DRILLING I, LTD. 

Appellee.

ON APPEAL FROM THE 83D JUDICIAL DISTRICT COURT, PECOS COUNTY, TEXAS

APPELLANTS’ MOTION FOR REHEARING

David W. Lauritzen

State Bar No. 00796934

DLauritzen@CBTD.com

COTTON, BLEDSOE, TIGHE & DAWSON, PC

P.O. Box 2776

Midland, Texas 797002-2776

P: 432.685.5782 | F: 432.682.3672

Rahul Malhotra

State Bar No. 00797781

Rahul@TheMalhotraLawFirm.com

THE MALHOTRA LAW FIRM

319 North Grant Avenue

Odessa, Texas 79761

P: 432.580.4878 | F: 432.337.7283

Jon Hanna

State Bar No. 08919200

JHanna7534@aol.com

HANNA LAW FIRM, PC

302 Chestnut Street

Abilene, Texas 79704

P: 325.673.6952 | F: 325.673.4496

ATTORNEYS FOR APPELLANTS

DECEMBER 18, 2015 

08-14-00134-CV

ACCEPTED

08-14-00134-CV

EIGHTH COURT OF APPEALS

EL PASO, TEXAS

12/18/2015 11:55:11 AM

DENISE PACHECO

CLERK

 FILED IN 8th COURT OF APPEALS EL PASO, TEXAS 12/18/2015 11:55:11 AM DENISE PACHECO Clerk
Painter v. Amerimex Drilling—Mot. Rehearing Page 2

IDENTITY OF PARTIES AND COUNSEL

To the best of Appellants’ knowledge, the following is a complete list of 

parties and counsel to the judgment being appealed, as required by Texas Rule of 

Appellate Procedure 38.1(a).

Presiding Judge: The Honorable Pete Gomez, Jr.

83d Judicial District Court

Pecos County, Texas

Appellants: STEVEN PAINTER;

TONYA WRIGHT, Individually and as Representative 

of the ESTATE OF EARL A. WRIGHT, III, DECEASED;

VIRGINIA WEAVER, Individually and As Next Friend 

of ALBERT A. CARILLO, A MINOR;

TABITHA R. ROSELLO, Individually and as 

Representative of the ESTATE OF ALBERT CARILLO,

DECEASED

Trial & Appellate

Counsel: 

STEVEN PAINTER;

TONYA WRIGHT,

Individually and as 

Representative of the 

ESTATE OF EARL A.

WRIGHT, III,

DECEASED

Jon Hanna

State Bar No. 08919200

JHanna7534@aol.com

HANNA LAW FIRM, PC

302 Chestnut Street

Abilene, Texas 79704

P: 325.673.6952 | F: 325.673.4496
Painter v. Amerimex Drilling—Mot. Rehearing Page 3

Trial & Appellate 

Counsel: 

VIRGINIA WEAVER,

Individually and As 

Next Friend of ALBERT 

A. CARILLO, A MINOR;

TABITHA R. ROSELLO,

Individually and as 

Representative of the 

ESTATE OF ALBERT 

CARILLO, DECEASED

Rahul Malhotra

State Bar No. 00797781

Rahul@TheMalhotraLawFirm.com

THE MALHOTRA LAW FIRM

319 North Grant Avenue

Odessa, Texas 79761

P: 432.580.4878 | F: 432.337.7283

Appellate Counsel for All 

Appellants:

David W. Lauritzen

State Bar No. 00796934

DLauritzen@CBTD.com

COTTON, BLEDSOE, TIGHE & DAWSON, PC

P.O. Box 2776

Midland, Texas 797002-2776

P: 432.685.5782 | F: 432.682.3672

Appellees: AMERIMEX DRILLING I, LTD.

Trial & Appellate

Counsel: 

Karen C. Burgess

RICHARDSON + BURGESS, LLP

221 West 6th Street, Suite 900

Austin, Texas 78701-3445
Painter v. Amerimex Drilling—Mot. Rehearing Page 4

TO THE HONORABLE COURT OF APPEALS:

APPELLANTS, STEVEN PAINTER; TONYA WRIGHT, Individually and as 

Representative of the ESTATE OF EARL A. WRIGHT, III, DECEASED; VIRGINIA 

WEAVER, Individually and As Next Friend of ALBERT A. CARILLO, A MINOR; and 

TABITHA R. ROSELLO, Individually and as Representative of the ESTATE OF ALBERT 

CARILLO, DECEASED file this Motion for Rearing.

I. GROUNDS FOR REHEARING

Appellants respectfully request a rehearing because the Court’s Opinion 

focuses on the employer’s control, but the focus is properly on whether the driver 

was furthering the interests of his employer at the time of the incident. The Opinion 

moots employer vicarious liability by imposing an impractical control standard, 

never before applied to direct employers. Amerimex Drilling I, Ltd.’s 

(“Amerimex”) employee, Mr. Burchett, was acting in the course and scope of his 

employment and furthering Amerimex’s business interests at the time of the 

dreadful, deadly incident.

II. ARGUMENT

A. Driving the crew was part of Amerimex’s contractual obligation.

The Amerimex-SandRidge Contract (also, the “Contract”) identifies, 

particularizes, and covers the business services Amerimex was to perform as part of 

Amerimex’s regularly conducted business operations for SandRidge. See R. at 94–

106 (Amerimex Mot. Sum. J., Ex. C (Jun. 25, 2012)). The Contract was signed by 

Glen Murphree, Amerimex’s Chief Financial Officer (“CFO”). Id. at 100. The 

Contract was intended to further the business interests of the contracting parties.

The Amerimex-SandRidge Contract clearly identifies driving the crew to and 

from the wellsite as part of Amerimex’s duties under the contract. Id. at 99, 

§ 27.9(B). The Contract commands Amerimex to have its Driller ferry the crew 

working on the SandRidge well. Id. The contract explicitly states: Amerimex “shall 
Painter v. Amerimex Drilling—Mot. Rehearing Page 5

invoice ... [SandRidge] for and pay each Driller to receive $50/day to drive crew 

out to well location.” Id. That is clear, unambiguous language within the fourcorners of the document. 

None of the cases cited or relied upon by this Court in its Opinion have that 

particular and highly relevant fact. Burchett and his crew did not simply decide to 

carpool out of a self-interest or on their own volition. No, quite the contrary,

Amerimex definitively agreed and contractually promised SandRidge that 

Amerimex would have the Amerimex Driller ferry the Amerimex crew. 

B. This Court incorrectly concluded Appellants’ arguments.

1. Remote drilling site has nothing to do with the coming and going rule.

This Court incorrectly “discern[ed]” that Appellants contend “the nature of 

remote drilling sites presents an exception to the general rule ... [that] coming from 

or going to work is not within the course and scope of employment.” Op., p. 6. The 

reason Mr. Burchett was within the course and scope of employment was because 

he was executing a contractual provision on behalf of and for his employer. See R. 

at 99, § 27.9(B). The Amerimex-SandRidge contract required Amerimex to pay an 

Amerimex Driller to transport the Amerimex crew to and from the SandRidge 

wellsite. Id. At the time of the incident, Burchett was doing that —taking the 

Amerimex crew back to the bunkhouse. 

The whereabouts of the bunkhouse is irrelevant. Whether the crewmembers 

could take their own vehicles or not is irrelevant. Whether the crewmembers could 

stop for a meal en route is irrelevant. The clear, unambiguous language of the 

contract controlled Amerimex’s actions. See R. at 99, § 27.9(B). The contract 

specifically required Amerimex’s Driller to transport the Amerimex Crew to and 

from the drilling site. Id. Therefore, when Mr. Burchett was driving the Amerimex 

Crew at the time of the incident, he was performing Amerimex’s contractual 

obligation; he was furthering Amerimex’s business interests.
Painter v. Amerimex Drilling—Mot. Rehearing Page 6

2. The reason for the “car-pooling arrangement” is unconnected to 

vicarious liability.

This Court (wrongly) concluded that it is Appellants’ contention that “the carpooling arrangement was in furtherance of Amerimex’s business as it ensured that 

a complete crew came [sic] to the drilling rig each day.” Op., p. 6 (emphasis added). 

Not so. The reason the so-called “car-pooling arrangement” was in furtherance of 

Amerimex’s business interests was because it was the execution of Amerimex’s 

contractual obligation under the Amerimex-SandRidge contract. See R. at 99, 

§ 27.9(B). 

C. The “most frequently offered reason” means it is not the only reason to 

impose vicarious liability.

Relying on Baptist Memorial Hospital System v. Sampson, 969 S.W. 2d 945, 

947 (Tex. 1998), this Court correctly noted an employer is vicariously liable for the 

negligence of an employee when the employee acts within the course and scope of 

their employment. See Op., p. 8. This Court also admitted that “[t]here are a number 

of possible justifications for this rule.” Id. But, it then stated that the “most 

frequently offered reason for imposing vicarious liability” arises out of control of 

the employee by the employer. Id. This Court relied on Comment D to 

RESTATEMENT (SECOND) OF AGENCY § 220 to support that contention. Id. However, 

Comment D states:

.... [T]he control or right to control needed to establish the relation of 

master and servant may be very attenuated. In some types of cases 

which involve persons customarily considered as servants, there may 

even be an understanding that the employer shall not exercise 

control. Thus, the full-time cook is regarded as a servant although it is 

understood that the employer will exercise no control over the cooking.

RESTATEMENT (SECOND) OF AGENCY § 220, cmt. D (1958) (emphasis added). So, 

when this Court then applied overt control as the only possible reason to impose 

vicarious liability, the Court overstepped both reason and evidence. See Op., p. 8.
Painter v. Amerimex Drilling—Mot. Rehearing Page 7

“To impose vicarious liability on the principal, the proper inquiry for agency 

is whether the agent was acting within the scope of the agency relationship at the 

time of the wrongful act” Bell v. VPSI, Inc., 205 S.W.3d 706, 714 (Tex. App.—Fort 

Worth 2006, no pet.) (citing Celtic Life Ins. Co. v. Coats, 885 S.W.2d 96, 100 (Tex.

1994)). The requirements to prove course and scope of employment are enumerated 

by the RESTATEMENT OF AGENCY which provides that torts are within the scope of 

an agent’s employment if the conduct is:

1) The kind [the employee] is employed to perform;

2) Occurs substantially within the authorized time and space limits; and

3) Is actuated, at least in part, by a purpose to serve the employer.

Kolstad v. American Dental Ass’n, 527 U.S. 526, 543 (1999) (quoting RESTATEMENT

(SECOND) OF AGENCY § 228(1) at 504). Applying those requirements to the present 

case:

1) Mr. Burchett, as Driller, was employed as driver for his crew and paid a 

separate amount from his regular Driller’s pay just to drive the 

Amerimex Crew to and from the well site;

2) The incident occurred substantially within a short period of the 

Amerimex’s Crew regular tour shift and en route from the well site; and

3) Mr. Burchett driving the Amerimex Crew was actuated in its entirety to 

serve and execute Amerimex’s agreement with SandRidge.

Clearly, Mr. Burchett was furthering Amerimex’s business interests.

D. Burchett is does not understand the legal term “control.”

The Court relied on testimony by Mr. Burchett, Amerimex’s Driller and driver 

for his testimony that his, Painter, Wright, and Carillo’s (the “Amerimex Crew”) 

“shift ended at 6 a.m. [sic],” he “was not working at the time” of the incident, and 

that “Amerimex has no control over ... [their] time off.” Op., p. 20. Burchett is not 

qualified to make those statements such that they should be interpreted in a legal 

manner. 
Painter v. Amerimex Drilling—Mot. Rehearing Page 8

Mr. Burchett was the Driller for the Amerimex Crew. See R. at 140–41, J.C. 

Burchett Dep. v. 1, 6:24–7:1; 8:1–5; 11:23–25; 12:7–22 (Oct. 7, 2008) (Amerimex 

Mot. Sum. J., Ex. F (Jun. 25, 2012)); see also R. at 239, J.C. Burchett Dep. v. 2, 6:2–

4, 7:2–5 (Apr. 1, 2009) (Pl.’s Resp. to Amerimex Mot. Sum. J., Ex. A-2 (July 19, 

2012)). He never graduated high school. He has only the simplest understanding of 

how he is paid, what that pay represents, and the legal implications that go with those 

things. 

Giving Mr. Burchett credit for making a legal representation that his “shift 

ended at 6 A.M.,” he “was not working at the time” of the incident, and that 

“Amerimex has no control over ... [their] time off,” is pure conjecture and 

conclusory. It is more likely, given Mr. Burchett’s very limited education, that in 

his mind “working” meant actually working on the rig as a driller. It is more likely 

that in Mr. Burchett’s mind “control” by Amerimex means Amerimex telling him 

what job to do.

The Opinion and Record are clear on the fact that Mr. Burchett was getting 

paid a separate stipend to ferry the Amerimex Crew to and from the drilling site. 

This Court recognized that Amerimex paid Mr. Burchett a separate payment 

specifically for driving the Amerimex Crew to the jobsite before their schedule tour 

start time and from the jobsite after their scheduled tour ended. Op., pp. 3, 21. 

Yes, the Amerimex Crew’s tour shift was over and Mr. Burchett had, 

analogously, removed his Driller’s hat, just as the rest of his crew had removed their 

hats when they clocked off the jobsite. But, at the time of the incident, Mr. Burchett 

was wearing his Chauffer’s hat. Mr. Burchett was on the clock, performing a 

different and distinct job for Amerimex. Mr. Burchett was getting paid to shuttle the 

Amerimex Crew. It is un-American to think that a for-profit entity would pay an 

employee for doing something that did not further the business’s interests.
Painter v. Amerimex Drilling—Mot. Rehearing Page 9

Mr. Burchett might be an exceptional Driller. For all Appellants know, he 

might be the most adept Driller in history. But, he has no legal training. He never 

finished the 12th grade. It is inconceivable that he used the word “control” in any 

legal sense. It is inequitable for this Court assigned the legal definition to Mr. 

Burchett’s use of the word “control.”

E. Glen Murphree is not qualified to make a statement whether Amerimex 

had legal control over the Amerimex Crew.

Mr. Murphree is Amerimex’s CFO. R. at 108, Contested Case Hr’g, G. 

Murphree Testimony, 3:6–9 (Feb. 29, 2009) (Amerimex Mot. Sum. J., Ex. D (Jun. 

25, 2012)) (“Murphree Testimony”). He is not an attorney and the record does not 

indicate he has had any legal training. Before he became CFO for Amerimex’s 

general partner in 1997, he worked twenty-two years for a bank in Sweetwater, 

Texas. R. at 284–85, G. Murphree Dep., 41:17–25, 42:3–7 (Oct. 7, 2008)

(Amerimex Mot. Sum. J., Ex. D (Jun. 25, 2012)) (“Murphree Dep.”). He spent 

eighteen of his twenty-two years working in the bank’s trust department. Id. 

In its Opinion, this Court accepted Mr. Murphree’s contention that Amerimex 

had “no control” over its employees once “they leave the rig.” Op., pp. 20–21. In 

doing that, this Court ordained Mr. Murphree as having the knowledge, skill, and 

training to understand the legal definition of “control.” However, reading all of Mr. 

Murphree’s deposition, even reading the snippets quoted in the Opinion, it is clear 

he used the term “control” in its common, ordinary usage and not in the legal-sense. 

Mr. Murphree said things like “I have no control over those people when they 

leave the rig” or “They start work when the get to the rig, and that’s when work 

begins ... Outside that, you know, we have no control over them,” he is using 

“control” in a generalized and common-usage manner. See Op., pp. 20–21. Well, 

obviously, Amerimex controls its employees under a common usage definition. The 

employees have to “get to the rig” sober with no alcohol or drugs in their “bodily 
Painter v. Amerimex Drilling—Mot. Rehearing Page 10

systems”—that’s controlling their actions outside of the workplace. The employees 

have to submit to “searches or inspections” of their persons, property, or vehicles for 

alcohol or drugs—that’s controlling their actions outside of the workplace and in 

their personal vehicle. The employees must wear proper clothing and personal 

protective equipment—that’s controlling their actions outside of the workplace and 

not letting them dress as they please. 

By Amerimex’s own attorney’s statement, Mr. Murphree had no 

understanding of the legal definition of control, except what he was told after-thefact by the Amerimex attorney. R. at 290, Murphree Dep. at 62:3–24. Therefore, 

any legal-definition amounts to testimony by Amerimex’s attorney.

Mr. Murphree used the word “control” in a common, everyday manner. In 

consecrating his trust-officer, layman’s usage of the word “control” with the full 

ramification of the legal definition of “control,” this Court rendered an inequity upon 

Appellants.

F. Court misapplied Pilgrim v. Fortune Drilling Co.

This Court relied on Pilgrim v. Fortune Drilling Co., Inc., 653 F.2d 982, 986–

87 (5th Cir., Unit A, 1981) for the principle that an “employer [is] not vicariously 

liable under respondeat superior ... despite per diem paid” for transporting drilling 

crew. Op., p. 21. However, the facts in Pilgrim are readily distinguishable.

Pilgrim Present Case

The employees were being transported 

to/from their personal homes. (at 983).

The employees were being transported 

to/from Amerimex-provided housing.

The payment was a “travel allowance.”

(at 983).

The payment was a “Driver bonus”

under the Amerimex-SandRidge 

contract.
Painter v. Amerimex Drilling—Mot. Rehearing Page 11

Pilgrim Present Case

Per diem travel allowance available to 

any rig member. (at 983). Rig crew 

decided from day to day which 

crewmember would receive that day’s 

travel allowance. (at 983).

“Driver bonus” was only available to 

driller on that job under the Contract.

Most of the crew drove to a location in 

Iraan, met there, and then carpooled in 

one vehicle to the rig (at 983 n.3).

Evidence in the record indicates the 

entire crew stayed at the Amerimex 

housing and the rig every day.

Some employees drive their own 

vehicles, some employees camped near 

the rig, some carpooled daily (at 987).

Evidence in the record indicates 

Burchett drove all of his crew to and 

from the Amerimex housing and the rig 

every day.

Purpose: None stated. Purpose: to make Amerimex 

competitive so crew did not quit middrilling.

Normally, Amerimex would set a mobile bunkhouse at the drilling location 

for its crews. R. at 109, Murphree CCH Testimony 7:4–20. However, at this drill 

site, the bunkhouse was not permitted. Id. Therefore, Amerimex moved the 

bunkhouse to a location near Fort Stockton. Id. Usually, the Amerimex crew could 

walk to the bunkhouse after their shift was over. But, at this site, Amerimex paid 

Burchett to drive the crew.

Burchett was not paid for his personal travel time—he was paid to transport 

the Amerimex crew. In Murphree’s own words, the driving of the crew was not 

routine. R. at 109, Murphree CCH Testimony 8:15–9:16.
Painter v. Amerimex Drilling—Mot. Rehearing Page 12

III. PRAYER

The Court should grant rehearing, request additional briefing and argument. 

In the alternative, Appellants pray the Court will reconsider and reverse its previous 

decision.

Respectfully submitted,

COTTON, BLEDSOE, TIGHE & DAWSON, PC

P.O. Box 2776

Midland, Texas 797002-2776

P: 432.685.5782 | F: 432.682.3672

By: /s/ David Lauritzen___ 

David W. Lauritzen

State Bar No. 00796934

DLauritzen@CBTD.com

THE MALHOTRA LAW FIRM

319 North Grant Avenue

Odessa, Texas 79761

P: 432.580.4878 | F: 432.337.7283

By: 

Rahul Malhotra

State Bar No. 00797781

Rahul@TheMalhotraLawFirm.com

HANNA LAW FIRM, PC

302 Chestnut Street

Abilene, Texas 79704

P: 325.673.6952 | F: 325.673.4496

Jon Hanna

State Bar No. 08919200

JHanna7534@aol.com

ATTORNEYS FOR APPELLANTS
Painter v. Amerimex Drilling—Mot. Rehearing Page 13

CERTIFICATE OF COMPLIANCE

I certify this document, excluding caption, signature, proof of service, 

certification, and this certificate, contains 2,426 words, according to the word count 

of the computer program used to prepare this document.

 

Rachel Ambler, State Bar No. 24081954

THE MALHOTRA LAW FIRM

ATTORNEYS FOR APPELLANTS

CERTIFICATE OF SERVICE

I certify that a true copy of the above was served on each attorney of record 

or party in accordance with the Texas Rules of Civil Procedure on the 18th day of 

December, 2015.

VIA EMAIL and efiling, which will automatically 

serve a Notice of Electronic Filing.: 

Karen C. Burgess, kburgess@richardsonburgess.com

RICHARDSON + BURGESS, LLP

221 West 6th Street, Suite 900

Austin, Texas 78701-3445

Attorneys for Amerimex, Appellee

RACHEL AMBLER

THE MALHOTRA LAW FIRM

ATTORNEYS FOR APPELLANTS