IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-20117

Summary Calendar

AMERISURE INSURANCE COMPANY,

Plaintiff–Appellant

v.

NAVIGATORS INSURANCE COMPANY,

Defendant–Appellee

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:06-CV-2096

Before REAVLEY, SMITH, and PRADO, Circuit Judges.

PER CURIAM:*

I. FACTUAL AND PROCEDURAL BACKGROUND

This case is the second appeal arising from a diversity insurance

subrogation case regarding an underlying tort lawsuit. The previous panel

capably set out the facts of that underlying suit and we reproduce the relevant

portions of them here:

United States Court of Appeals

Fifth Circuit

F I L E D

September 30, 2011

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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No. 11-20117

On October 9, 2003, William Sylvester drove two employees of Texas

Crewboats Inc., Captain Dixie Clanton and Deckhand Jimmy

Satterfield, from Freeport, Texas to Morgan City, Louisiana where

the two were to board and crew the Florida Lilly, one of Texas

Crewboats's vessels. While en route, Sylvester fell asleep at the

wheel, thereby causing the vehicle to veer off of the road and flip

over. Clanton and Satterfield suffered significant injuries as a

result. They sued Texas Crewboats and Sylvester inLouisiana state

court, claiming negligence and recklessness against Sylvester and

bringing similar claims under the Jones Act against Texas

Crewboats. Clanton and Satterfield claimed that Sylvester was

driving in the course and scope of his employment with Texas

Crewboats and that Texas Crewboats was vicariously liable. They

also sued Texas Crewboats for maintenance and cure benefits.

At the time, Texas Crewboats carried three insurance policies that

the incident potentially implicated. Amerisure provided $1 million

of primary automobile-liability insurance. Under that policy,

Sylvester, who was driving the vehicle with the permission of Texas

Crewboats, was also an insured. . . . Navigators was the excess

insurer, covering up to $9 million. Under this arrangement, if an

incident fell within the coverage of any of the primary insurers, that

insurer must indemnify the insured up to $1 million, and then,

Navigators would cover the remainder up to $9 million. Under the

circumstances, Texas Crewboats wanted the case settled, and all of

the interested parties, including the insurers, agreed. Following

mediation, the parties agreed to the following settlement: Clanton's

claims would be settled for $1,325,000 and Satterfield's for

$1,025,000. The insurers, however, could not agree on which of them

should pay. Amerisure argued that only the Fireman's and

Navigators policies applied. Navigators insisted that the incident

also fell within the Amerisure policy, and therefore, demanded that

Amerisure pay its $1 million limit.

. . .

In April 2006, Amerisure moved for summary judgment in

Louisiana state court, seeking a declaration that its policy did not

cover the incident. On June 15, 2006, Amerisure voluntarily

withdrew that motion. Ultimately, Amerisure paid $1 million and

Navigators paid $1.35 million. . . . In the settlement agreement,

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Amerisure reserved its right to seek reimbursement from

Navigators through subrogation. During those settlement

negotiations, Amerisure filed this subrogation action in the United

States District Court for the Southern District of Texas.

Amerisure Ins. Co. v. Navigators Ins. Co., 611 F.3d 299, 302–04 (5th Cir. 2010).

The district court granted summary judgment to Navigators, and that

order was appealed to this Court. The previous panel reversed the district court,

holding that Amerisure could subrogate against Navigators. Id. at 313. The

previous panel then remanded the case to the district court to determine

whether Sylvester was an employee of Texas Crewboats or just an independent

contractor. Both parties conducted discovery, and the district court held a bench

trial on the issue of Sylvester’s employment status. Finding that Sylvester was

an independent contractor and not an employee of Texas Crewboats, the district

court found for Navigators. Amerisure filed this appeal.

II. STANDARD OF REVIEW

When sitting in diversity, we must apply the substantive law of the forum

state, in this case Texas. Holt, 627 F.3d at 191 (citing Erie R.R. v. Tompkins,

304 U.S. 64 (1938)). Our review of a district court’s “legal conclusions as to the

content of state law [is] de novo,” but we review factual determinations under

the state substantive law for clear error. Northrop Grumman Ship Sys., Inc. v.

Ministry of Defense of the Republic of Venex., 575 F.3d 491, 499 (5th Cir. 2009)

(citations and emphasis omitted). 

The ultimate conclusion that a person is either an employee or an

independent contractor is a legal conclusion (reviewed de novo), cf. Brock v. Mr.

W Fireworks, Inc., 814 F.2d 1042, 1044 (5th Cir. 1987), but the test to determine

that ultimate issue is “whether the employer has the right to control the

progress, details, and methods of operations of the employee's work.” Thompson

v. Travelers Indem. Co. of R.I., 789 S.W.2d 277, 278 (Tex. 1990). In determining

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the right to control, Texas courts look at a variety of factors, see Limestone Prods.

Distrib., Inc. v. McNamara, 71 S.W.3d 308, 312 (Tex. 2002) (listing factors), but

the “right of control is ordinarily a question of fact.” Sparger v. Worlley Hosp.,

Inc., 547 S.W.2d 582 (Tex. 1977); see also Campbell v. Keystone Aerial Surveys,

Inc., 138 F.3d 996, 1006 (5th Cir. 1998) (citing Halliburton v. Tex. Indem. Ins.

Co., 213 S.W.2d 677[, 680–81] (Tex. 1948)). It is only a question of law where

there is “no dispute as to controlling facts and only one reasonable conclusion

can be drawn from those facts.” Campbell, 138 F.3d at 1006 (citing Indus.

Indem. Exchange v. Southard, 160 S.W.2d 905, 906 (Tex. 1942)).

III. DISCUSSION

As this Court in Brock discussed with respect to determinations of

workers’ status under the federal Fair Labor Standards Act, there are really

multiple determinations being made by the district court. See Brock, 814 F.2d

at 1044–45. At base, there are those facts that underlie the factual findings

under the Limestone factors. The court in Brock described these as “historical 1

facts.” Id. at 1044. In this case, these include the district courts findings that 

Sylvester had no special training and that Sylvester was paid by the trip in cash

and not a salary or hourly wage. One level up are the findings on the Limestone

factors themselves, another factual determination. Cf. id. at 1044. In the

language of the Texas caselaw in this area, these might be described as the

“controlling facts.” See Indus. Indem. Exch. v. Southard, 160 S.W.2d at 906.

In Limestone Products Distribution v. McNamara, the Texas Supreme Court laid out 1

factors it considers when “meausr[ing] the right to control”:

(1) the independent nature of the worker's business; (2) the worker’s obligation

to furnish necessary tools, supplies, and materials to perform the job; (3) the

worker’s right to control the progress of the work except about final results; (4)

the time for which the worker is employed; and (5) the method of payment,

whether by unit of time or by the job.

71 S.W.3d 308, 312 (Tex. 2002) (citations omitted).

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Though the district court did not specifically describe its findings in this way,

these findings here include, as to Limestone factor one, that “Sylvester retained

control over the details of each assignment” and as to Limestone factor three that

the nature of driving allowed Sylvester to “exercise independent discretion.” 

Amerisure Ins. Co. v. Navigators Ins. Co., No. 4:06-CV-2096, 2011 WL 677338,

at *2 (S.D. Tex. Feb. 15, 2011). While the Brock court only had three levels of

inquiry, the nature of the Texas precedent requires four determinations. The

FLSA has factors that go to whether there was an employment relationship and

right of control is one of those. Brock, 811 F.2d at 1043–44 (citing United States

v. Silk, 331 U.S. 704, 715 (1947)) (listing “the right of control” as one of the five

Silk factors). But in Texas, the factors discussed in Limestone go to the right of

control and right of control determines the ultimate legal question as to the

worker’s status. Thompson, 789 S.W.2d at 278.

The heart of the dispute here is over the controlling facts and the weight

afforded them by the district court in determining whether Texas Crewboats had

the right to control Sylvester and in turn, Sylvester’s status as an employee or

independent contractor. Since there is a dispute as to the controlling facts and

the determination of right to control under Texas law is a question of fact, our

review is for clear error. See Campbell, 138 F.3d at 1006 (applying the clear

error standard to a determination of a worker’s status under Texas law). If, as

here, “there are two permissible views of the evidence, the factfinder’s choice

between them cannot be clearly erroneous.” In re Jacobsen, 609 F.3d 647, 662

(5th Cir. 2010) (quoting Anderson v. City of Bessemer City, N.C., 470 U.S. 564,

574 (1985)) (internal quotation marks omitted). 

Navigators showed that Sylvester maintained discretion over route

selection, which speaks to a lack of control over the details of the work. It proved

that though Sylvester worked about twenty hours per week for three years, he

chose when to work and did not have to accept any particular job from Texas

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Crewboats. Sylvester took no part in any benefits programs of Texas Crewboats

(retirement, health insurance) and was paid by the job. Finally, Navigators

showed that Sylvester was allowed to work other jobs during his time driving for

Texas Crewboats. To be sure, Amerisure did show that Sylvester’s truck was

owned and maintained by Texas Crewboats at all relevant times. Moreover,

these considerations are “prima facie” evidence of control under Texas law. 

Ochoa v. Winerich Motor Sales Co., 94 S.W.2d 416, 418 (Tex. 1936). 

Nonetheless, there was enough conflicting evidence marshaled by Navigators to

render the district court’s finding that Texas Crewboats did not have the right

to control Sylvester not clearly erroneous. 

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s judgment for

Navigators.

AFFIRMED.

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