### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH 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 div e r s ity insurance subrogation case regarding an underlying tort law s u it

. The previous panel capably set out the facts of that underlying suit and we reproduce the relevant portions of them here: U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D Sep tem ber 3 0, 2 011 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the court hasd ete rm inedthat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 11-20117 Document: 00511618770 Page: 1 Date Filed: 09/30/2011No. 11-20117

On October 9, 2003, William Sylvester drove two employees of Texas Crewboats Inc., Cap t ain Dixie Clanton and Deckhand Jimmy Satterfield, from Freeport, Texas to Morgan City, Louisiana where the two were to board and cre w th e Florida Lilly, one of Texas Crewboats's vessels. While en r o u t e , Sylvester fell asleep at the wheel, thereby causing the vehicle to veer off of the road a n d f l ip over. Clanton and Satterfield su f f e r e d significant injuries as a result. They sued Texas Crewboats and Sylvester in Loui s i ana state court, claiming negligence and recklessness against Sylves t e r and bringing similar claims under the Jones Act against Texas Crewboats. Clanton and Satterfield claimed that S ylvester was driving in the course and scope of his employ m e nt 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 insur a n c e . Under that policy, Sylvester, who was driving the vehicle with the permission of Texas Crewboats, was also an insured.

. . . Navigat o r s w a s 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 ins ur e r s, 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 policie s a p p lied. 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 s e e k 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 gr a nt e d summary judgment to Navigators, and that order was appealed to this Court. The previous panel reversed the district court, holding that Amerisure could subrogate agains t N avigators. Id. at 313. The previous pa n e l th en 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 (citin g Er ie R.R. v. Tompkins , 304 U.S. 64 (1938)). Our review of a district court’s “legal conclusions as to the cont e nt o f s t ate 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. 200 9) (citations and emphasis omitted). Th e u ltimate 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 t o c o ntrol 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 f act.” 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 (5 th 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 an d o nly o n e reasonable conclusion

can be drawn from those fa c t s . ” Campbell , 138 F.3d at 1006 (citing Indus. Indem. Exchange v. Southard , 160 S.W.2d 905, 906 (Tex. 194 2)). III. DISCUSSION As this Court in Brock discussed with re s p e c t to determinations of workers’ status under the federal Fair Labor Sta n d ards Act, there are really multiple determinations being made by the district court. See Brock , 814 F.2d at 1044–45. At base, there are th o s e f a c t s 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 l a n gu a g e of the Texas caselaw in this area, these might be described as th e “controlling facts.” See Indus. Indem. Exch. v. Southard , 160 S.W.2d at 9 0 6.

In Lim eston e Produc ts Di stri bution v. McNa ma ra , the Texas Sup rem e Court laid out 1 fac tor s it cons ide rsw hen “m eaus r[ing] the rightt o c ontr ol” : (1) the inde pend ent natur e of the wo rk er' s bus ines s; (2) the wo rk er’ s obligat ion to fur nis h nece ss ary too ls, sup pli es , a n d m a t e r ials to perfor m the job; (3) the wo rk er’ s right to cont rol the pr ogres s of the wo rk excep t about fina l res ults ; (4) the tim e fo r w h i c h the wo rk er is em plo yed; and (5) the me thod of paym ent, wh ethe r by uni t of tim e o r by the job.
71 S .W. 3d 308, 312 (Tex. 2002) (cit atio ns om itt ed)

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Though the district court did n o t 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 independ e nt discretion.” Amerisure Ins. Co. v. Navigators Ins. Co. , No. 4:06-CV-2096, 2011 WL 67733 8, at *2 (S.D. Tex. Feb. 15, 2011). While the Brock court only h a d th r e e l evels of inquiry, the nature of the Te x a s 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

c o nt r ol 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 Crewb o at s 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 (applyi n g 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 c hoice 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). Navigat o rs 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 acc e p t a ny particular job from Texas
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Crewboats. Sylvester took no part in any benefits programs of Texas Crewboats (r e tir e m e nt, health insurance) and was paid by the job. Finally, Navigator s 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 ti m es. Moreover, these considerations are “prima facie” evidence of control under Texas law. Ochoa v. Winerich Motor Sales Co. , 94 S.W.2d 4 1 6 , 4 1 8 (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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