N O

. 11

- 12 -00322- CV

I N THE C OURT OF A PPEALS

FOR THE E IGHTH C OURT OF A PPEALS D ISTRICT OF T EXAS

E L P ASO , T EXAS

S TEVEN P AINTER ; T ONYA W RIGHT , Individually and as Representative of the E STATE OF E ARL A. W RIGHT , III, D ECEASED ; V IRGINIA W EAVER , Individually and As Next Friend of A LBERT A. C ARILLO , A M INOR ; T ABITHA R. R OSELLO , Individually and as Representative of the E STATE OF A LBERT C ARILLO , D ECEASED Appellants
,

V

. A MERIMEX D RILLING I, L TD

. Appellee

.

O N A PPEAL FROM THE 83 D J UDICIAL D ISTRICT C OURT , P ECOS C OUNTY , T EXAS

A PPELLANTS ’ M OTION FOR R EHEARING

David W. Lauritzen State Bar No. 00796934 DLauritzen@CBTD.com C OTTON , B LEDSOE , T IGHE & D AWSON , 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 T HE M ALHOTRA L AW F IRM 319 North Grant Avenue Odessa, Texas 79761 P: 432.580.4878 | F: 432.337.7283

Jon Hanna State Bar No. 08919200 JHanna7534@aol.com H ANNA L AW F IRM , PC 302 Chestnut Street Abilene, Texas 79704 P: 325.673.6952 | F: 325.673.4496 A TTORNEYS FOR A PPELLAN TS

D ECEMBER 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

CLERKPainter v. Amerimex Drilling

— Mot. Rehearing Page 2 I DENTITY OF P ARTIES AND C OUNSEL

To the best of Appellants ’ knowledge, the f ollowing 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: S TEVEN P AINTER ; T ONYA W RIGHT , Individually and as Representative of the E STATE OF E ARL A. W RIGHT , III, D ECEASED ; V IRGINIA W EAVER , Individually and As Next Friend of A LBERT A. C ARILLO , A M INOR ; T ABITHA R. R OSELLO , Individually and as Representative of the E STATE OF A LBERT C ARILLO , D ECEASED
Trial & Appella t e Counsel:
S TEVEN P AINTER ; T ONYA W RIGHT , Individually and as Representative of the E STATE OF E ARL A. W RIGHT , III, D ECEASED Jon Hanna State Bar No. 08919200 JHanna7534@aol.com H ANNA L AW F IRM , PC 302 Chestnut Street Abilene, Texas 79704 P: 325.673.6952 | F: 325.673.4496Painter v. Amerimex Drilling

— Mot. Rehearing Page 3

Trial & Appellate Counsel:
V IRGINIA W EAVER , Individually and As Next Friend of A LBERT A. C ARILLO , A M INOR ; T ABITHA R. R OSELLO , Individually and as Representative of the E STATE OF A LBERT C ARILLO , D ECEASED Rahul Malhotra State Bar No. 00797781 Rahul@TheMalhotraLawFirm.com T HE M ALHOTRA L AW F IRM 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 C OTTON , B LEDSOE , T IGHE & D AWSON , PC P.O. Box 2776 Midland, Texas 797002

- 2776 P: 432.685.5782 | F: 432.682.3672
Appellees: A MERIMEX D RILLING I, L TD

.

Trial & Appellate Counsel: Karen C. Burgess R ICHARDSON + B URGESS , LLP 221 West 6th Street, Suite 900 Austin, Texas 78701

- 3445Painter v. Amerimex Drilling

— Mot. Rehearing Page 4

T O T HE H ONORABLE C O URT OF A PPEALS :
A PPELLANTS , S TEVEN P AINTER ; T ONYA W RIGHT , Individually and as Representative of the E STATE OF E ARL A. W RIGHT , III, D ECEASED ; V IRGINIA
W EAVER , Individually and As Next Friend of A LBERT A. C ARILLO , A M INOR ; and

T ABITHA R. R OSELLO , Individually and as Representative of the E STATE OF A LBERT
C ARILLO , D ECEASED file this Motion for Rearing.

I. G ROUNDS FOR R EHEARING 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. A RGUMENT
A. Driving the crew was part of Amerimex ’ s contractual obligation.
The Amerimex

- Sand R idge C ontract (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 C ontract clearly identifies driving the crew to and
f rom the wellsite as part of A m erimex ’ s duties under the contract. Id . at 99
, § 27.9(B)

. The C ontract commands Amerimex to have its Driller ferry the crew working on the SandRidge well. Id

. The contract explicitly states: Amerimex “ shallPainter v. Amerimex Drilling

— Mot. Rehearing Page 5

invoice ... [SandR idge] for and pay each Driller t o recei v e $50/day to drive crew
out to well location. ” Id

. That is clear, unambiguous language within the four

corners 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 definitive ly agreed and contractually promised SandRidge that
Amerimex would have the Ameri mex 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 executin g 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

— taki ng 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

v icarious liability.
This Court ( wrongly) concluded that it is Appellants ’ contention that “ the car

pooling 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
, 9 69 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

R ESTATEMENT (S ECOND ) OF A GENCY § 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.

R ESTATEMENT (S ECOND ) OF A GENCY § 220, cmt. D (1958) (emphasis added). So,
when th is 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 R ESTATEMENT OF A GENCY 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 R ESTATEMENT (S ECOND ) OF A GENCY § 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 occurre d 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 1 40

– 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 ( J uly 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 Ameri mex telling him what job to do.
The Opinion and R ecord 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 p ayment 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 di stinct 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 exc eptional 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 th is 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 Mo t. 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 Sweetwa ter,
Texas. R. at 284

– 85
, G. Murphree D ep. , 41:17

– 25, 42:3

– 7 ( O ct. 7, 2008 ) (Amerimex Mo t. Sum. J., Ex. D (Jun. 25, 2012)) ( “ M u rphree 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, an d t hat’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 control s its employees under a common usage definition. The

emp loyees have to “ get to the rig ” sober with no alcohol or drugs in their “ bodilyPainter 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
alcoh ol 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 d ress 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

- the

fact by the Amerimex attorney. R. at 290, Murphree Dep. at 62:3

– 24. Therefore, any legal

- definitio n 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 vicari ously
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 home s. (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 e mployees 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 no t quit mid

drilling.

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 F ort 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 cr ew. 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. P RAYER
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,
C OTTON , B LEDSOE , T IGHE & D AWSON , 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

T HE M ALHOTRA L AW F IRM 319 North Grant Avenue Odessa, Texas 79761 P: 432.580.4878 | F: 432.337.7283

By: Rahul Malhotra State Bar N o. 00797781 Rahul@TheMalhotraLawFirm.com

H ANNA L AW F IRM , PC 302 Chestnut Street Abilene, Texas 79704 P: 325.673.6952 | F: 325.673.4496 Jon Hanna State Bar No. 08919200 JHanna7534@aol.com

A TTORNEYS FOR A PPELLANTSPainter v. Amerimex Drilling

— Mot. Rehearing Page 13 C ERTIFICATE O F C OMPLIANCE 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 T HE M ALHOTRA L AW F IRM A TTORNEYS FOR A PPELLANTS

C ERTIFICATE O F S ERVICE 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 18 th day of December , 2015.

VIA EMAIL and efiling , which will automatically serve a Notice of Electronic Filing. : Karen C. Burgess
, kburgess@richardsonburgess.com R ICHARDSON + B URGESS , LLP 221 West 6th Street, Suite 900 Austin, Texas 78701

- 3445 Attorneys for Amerimex, Appellee

R ACHEL A MBLER T HE M ALHOTRA L AW F IRM A TTORNEYS FOR A PPELLANTS