### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-10142

MID-CONTINENT CASUALTY CO., Plaintiff-Appellant
v. ROGER DAVIS d/b/a DAVIS CONSTRUCTION, Defendant-Appellee

GLORIA SERRATO, Individually and as personal representative of the Estate of Jorge Serrato; ET AL., Intervenors-Defendants-Appellees

Appeal from the United States District Court for the Northern District of Texas

Before GARZA, DENNIS, and HIGGINSON, Circuit Judges. HIGGINSON, Circuit Judge: Appellant Mid-Continent Casualty Company (“Mid-Continent”) appeals the district court’s final judgment that Mid-Continent has a duty to indemnify Davis Construction in the underlying wrongful death action brought by the family of decedent Jorge Serr a t o ( “ S e r rato”). We AFFIRM the district court’s ruling, finding that the district court did not abuse its discretion in determining that Serrato was an indepe n d e n t contractor and not an employee of Davis Construction. 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 June 8, 201 2 Lyle W . Cayce Clerk Case: 11-10142 Document: 00511881397 Page: 1 Date Filed: 06/08/2012No. 11-10142 FACTS AND PROCEEDINGS In June 2007, deceden t Serrato fell through a hole on the second floor of

a construction site whe r e h e w a s working as part of a framing crew for Davis Construction and eventually died from the fall. Davis Construction, owned by Roger Davis, was in the business of framing buildings (typically residential) and obtaine d jobs by bidding on projects with general contractors. Roger Davis or Bill Ritchie would hire crew memb e r s for projects Davis Construction was awarded. Davis Construction worked on one job at a time and, therefore, only used one crew. Typically, Davis Construction’s crew consisted of four people in addition to Ritchie, who served as a supervisor, and the four workers on the crew often remained the same for years. During the month of Serrato’s accident, the four workers on the Davis Construction crew w e r e Vidal Negrete, Eduardo Negrete, Hector Sanchez, and Jorge Serrato. Following the accident, the Serratos filed a wrongful death, survival, and 1 personal injury action (the “Underlying Lawsuit”) against Davis C o nstruction

a n d T o m m y Ric hi e C o n s tru c ti o n , LL C

. M i d

- C o ntinent Casualty Company (“Mi d

C o n t inent”) sued Roger Davis d/b/a Davis Construction, seeking a declara t o r y judgment that Mid-Continent had no duty to indemnify Davis Construction in the Underlying L aw s uit b e c au s e S e rr at o w a s an employee of Davis Construction. The Serratos filed a motion to intervene in the Mid-C o n t i n e n t action, and the district court granted that motion.

Intervenors Gl oria Ser rat o, Cornejo Lope z de Ser rat o, and Jos e Benjam in de Ser rat o 1
s eek at leas t $5 mi llion in dam ages for Ser rat o’s wr ongful dea th, at leas t $5 m i l l i o n f o r Ser rat o’s sur vival dam ages , and at leas t $5 mi llion in exem plar y dam ages in this unde rlying law sui t. 2 Case: 11-10142 Document: 00511881397 Page: 2 Date Filed: 06/08/2012No. 11-10142

At t he time of Serrato’s accident, Davis Construction had a Commer c i a l Lines Policy, issued by Mid-Continent under policy number 04-GL000660872 with an effective policy period from January 24, 2007 to January 24, 2008 (the “Policy”). T h e P o licy contained two relevant coverage exclusions to which the Policy does not apply: d. Workers’ Compensation and Similar Laws Any obligation of the insured under a workers’ compensation, disability ben e fits or unemployment compensation law or any similar law. e. Employer’s Liability “Bodily injury” to: (1) An “employee” of the insured arising out of and in the course of: (a) Employment by the insured; or (b) Performing duties related to the conduct of that insured’s business . . . . Mid-Continent claims that because Serrato was a n e m p loyee of the insured, Davis Construction, exclusions “d” and “e” of the Policy apply to exclude coverage for losses resulting from the Underlying Lawsuit. The district court conducted a bench trial and issued a nine-page Memorandum Order and Opinion making findings of fact and conclusions of law. The following day, the district court signed its final judgment, declaring that Serrato was an independent contractor—not an employee of Davis Construction—and, therefore, Mid-Continent has a duty to indemnify Davis Construction in the Underlying Lawsuit. STANDARD OF REVIEW In an appeal from a district court’s final judgment following a bench trial,

we review the district court’s findings of fact f o r c l e a r error and review

c o n clusions of law de novo. Dickerson v. Lexington Ins. Co. , 556 F.3d 2 9 0 , 2 9 4

3 Case: 11-10142 Document: 00511881397 Page: 3 Date Filed: 06/08/2012No. 11-10142

(5th Cir. 2009). Under this standard, “[w]here there are two permissible views of the evidence, the fact f i n d e r’s choice between them cannot be clearly erroneous.” Anderson v. City of Bessemer City , 470 U.S. 564, 573–74 (1985). The determination of whether an individ u al is an employee or an independent contractor is a conclusion of law to be reviewed de novo. Rodriguez

v. Sarabyn , 129 F.3d 760, 765 (5 t h C i r
. 1997). However, “[f]indings on the Limestone factors themselves” are factual determinations and, therefore, are reviewed for clear error. Amerisure Ins. Co. v. Navigators Ins. Co. , 445 F. App’x 756, 759 (5th Cir. 2011) (unpublished); cf. Brock v. Mr. W. Fireworks, Inc. , 814 F.2d 1042, 1044 (5th Cir. 1987). DISCUSSION The issue before us is whether the district court erred in concluding that Mid-Continent had a duty to indemnify Davis Construction because Serrato was an independent contractor and not an employee of Davis Construction. 2 When jurisdiction is based on diversity of citizenship, as it is in this case,

we apply the substantive law of the forum state “in an attempt to rule as a [forum state’s] court would if presented with the same issues.” Musser Davis

App elle es alte rnat ively argue that even if th e d ist ric t cour t err ed in its legal 2
conc lus ion that Ser rat o wa s an inde pend ent contra cto r and not an em plo yee, Mid -Cont inent is nonet heles s es top ped fr om denyi ng that Ser rat o wa s an inde pend ent cont r a c t or bas ed on evide nce that Da vis Cons tru cti on det rim enta lly reli ed on Mid -Cont inent ’s rep res enta tio ns wi th res pec t to the char act eriza tio n of Da vis Cons tru cti on’s wo rk for ce. App elle es cit e: (1) the y earl y audi t sum mar ies Da vis Cons tru cti on rec eived fr om Mid -Cont inent for th e policy pe riod s betw een Januar y 24, 2003 and Januar y 24, 2008 wh ich st ate, “[ t] he ins ured has no em plo yees ; cont rac tor labor is util ized for the cons tru cti on wo rk ,” and (2) the Polic y its elf wh ich st ates , “[ t] he insu redhas no emp loyees ; con tra cto r laboris utili zed fo r the cons tru cti on wo rk .” The dis tri ct cour t did not add res s this es top pel argum ent in i t s M em oran dum and Op inion, and beca use we aff

irm the dis tri ct cour t’s legal conc lus ion that Ser r a to wa s an inde pend ent cont rac tor , we ne ed not reac h Ap pel lees ’ es top pelar gume nt. 4 Case: 11-10142 Document: 00511881397 Page: 4 Date Filed: 06/08/2012No. 11-10142

Land Co. v. Union P

ac. Res. , 201 F.3d 561, 563 (5th Cir. 2000). Therefore, because t h e f

orum state here is Texas, we apply the Texas definition of “employee” and “independent contractor” in our analysis. In Texas, d e t e r mining whether an individual is acting in the capacity of

an “independent contractor” or as an “employee” requires assessment of t h e amount of control the employer exerts o r h a s the right to exert over the “progress, details, and methods of operations of the wo r k.” Limestone Prod. Distrib. Inc. v. McNamara , 71 S.W.3d 308, 312 (Tex. 2002). The Texas Supreme Court set forth the following five factors to assess whether a worker is an employee or independent contractor: (1) the independent nature of the worker’s business; (2) the worker’s obligation to furnish necessary tools, suppli e s , and material 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. Id. at 312. Importantly, “the legal test for determining independent-contractor status in Texas is right to control, not comparison of control.” Id. T h e d i s t rict court, after conducting a trial on the merits during whic h testimony was heard from five witnesses about who controlled Serrato’s fate, held that Serrato was an independent contractor and not an employee of Davis construction based on an analysis explicitly applying the five factors laid out by the Texas Supreme Court in Limestone

. We examine the district court’s analysis of each of the five Limestone factors, reviewing each o f t h e s e factual determinations for clear error. Amerisure , 445 F. App’x at 759. Considering the first Lim e s t o n e factor, “the independent nature of the

w o rker’s business,” the district court acknowledged that this factor “does ve r y

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l i t tle to shed light on
. . . Davis’ right to control the crew’s work,” and M i d

Continent concedes that the dis t rict court’s analysis of this factor “was inconclusive.” See Limestone , 71 S.W.3d at 312. On the one hand, the district 3
court found that Davis “does not have control over whether the crew members work for other framing crews or even run their own framing business.” On the 4 other hand, the district court also found that, “Jorge Serrato and the other crew member’s business does not appear to be independent in nature.” Because the district court’s findings are mixed, we c o n s ider the first Limestone factor to be neutral, supporting neither a finding that Serrato was an employee nor a finding that Serrato was an independent contractor. 5

We find unpe rs uas ive Mid -Cont inent ’s argum ent that the dis tri ct cour t ’ s find ing, 3 bas ed on the tes tim ony of Davis , Ritc hie, and Mid- Conti nentaudit or Lyle Whit se tt, that the indu st ry st andar d tre ats me mbe rs of a fr ami ng cre w as inde pend ent cont rac tor s “is infl uence d by an err oneo us view of the law and is, ther efo re, enti tle d to no def ere nce
. ” Ap pel lants cit e an unpub lis hed dis tri ct cour t cas e, Caba ll ero v
. A r c her , No. SA-0 4-CA- 561- OG , 2007 WL 628755, at *4 (W. D. Tex. F e b

. 1, 2007) , as sup por t for thei r argum ent that an indu st ry st andar d sho uld not be cons ide red

. The dis tri ct court in Caba ll ero , how ever, gave no we ight to the tes tim ony of a ret ained expe rt wh os e opi nions we r e “b a s e d on his ow n inte rp ret atio n of indu st ry st andar ds or tru ck ing pr act ices

. . . .” Caba ll ero , 2007 W L 628755, at *4. He re, by cont ras t, the indu st ry st andar d evide nce cam e fr om the tes tim ony of Mid -Cont inent ’s ow n audi tor , wh o t es tif

iedthat, inhi s expe rien ce, m os t hom e b uild ing bu sin es se s, s uch as Da vis Cons tru cti on, use cont rac t labor , not em plo yees
. There for e, the dis tri ct cour t’s cons ide rat ion of M i d

- Conti nent ’s audi tor s’ adver se st atem ents regar ding indu st ry st andar ds , wh ich als o se rve to illum inate t he expe cta tio ns thatM id- Conti nenthadw hen it agree d to ins ure Da vis Cons tru cti on, w as not an e rro r. This fac tual find ing is sup por ted by tes tim ony that cre w lead er Bill Ritc hie had a sid e 4 bus ines s fr ami ng and build ing hom es
. Also , cre w- me mbe r Vidal Negr ete tes tif ied t hat he
wo rk ed for “a lot” of othe r peo ple , inclu ding “s om e of [his ] ow n wo rk ,” dur ing the ten years he als o wo rk ed wi th Da vis Cons tru cti on “bec au s e s o m e tim es we wo rk not all of the tim e [f or Da vis] .”
Mid -Cont inent c onte nds that the dis tri ct cour t’s find ing, lis ted unde r the

5 “Bac kgr ound” se cti on of i t s M e m o r a ndum Op inion and Or der , that , “[ m] os t of the wo rk ers h a v e fr ami ng expe rien ce wh en Da vis Cons tru cti on hire s them to be on the cre w” is c l e a r l y err oneo us. Becaus e the dis tri ct cour t doe s not dis cus s this poi nt in its analys is of the fir st 6 Case: 11-10142 Document: 00511881397 Page: 6 Date Filed: 06/08/2012No. 11-10142

The district court found that, “[t]he second Limestone factor, ‘the worker’s obligation to furnish necessary tools, supplies, and material to perform the job’ weighs heavily in favor of findin g t h at Jorge Serrato was an independent

c o n t r actor.” Though framing crew member Vidal Negrete testified that Davi s Construction provided some of the tools to the crew members, he also testified, 6 both before and after his single statement that Davis provided some tools, that: (1) the compressors used by the crew in 2007 belonged to either him or Ritchie; (2) that Serrato had his own nail gun, saw, and hand tools; and ( 3 ) that Davis did not provide any tools to Serrato. Similarly, Ritchie testified that: (1) he had

a compressor that the other crew members would use; (2) “everybody has got a compressor;” and (3) that most workers had their own nail guns, but if they did not, they would “be a cut man instead of a nail man or something of that nature.” Crew member Hector Sanchez testified that he and his fellow crew members had their own tools or borrowed them from other crew members. F i n a lly, in his 7

Lim eston e fac tor , we ne ed not add res s it here

. While tes tif

ying about the wo rk that wa s being d o n e i n 2 0 0 7, the year of Ser rat o’s 6
acc ide nt, Vid al Negr ete w as ask ed, “[s ]om e of the tools that w ere being usedwer e f urnis hed by the com pany? ” Vidal Negr ete res pond ed, “[ t] hat is right .” We hav e n o t f o u n d and Mid

Conti nent doe s not poi nt to any othe r evide nce in the recor d that sho ws Da vis provid ed tools to cre w me mbe rs
.

Q: M r. S anche z, didVid al have too ls in his t ruc k fort he wo rk ers 7 t o u sew ho did n’thavet heirow n t ools ? A: Yo u s ee, no rm ally it is our too ls. We putitint he tru ckjus t so thatw e d on’thave t o c arr y itar oundou rs elves

. Q: D id everyo ne have thei r ow n c om pr es so r? A: Notc om pr es so r but, you kno w, li ke t he gun o r the saw , yes. Q: D id everyo ne have thei r ow n na il gun? A: Ye s. 7 Case: 11-10142 Document: 00511881397 Page: 7 Date Filed: 06/08/2012No. 11-10142

deposition, Davis stated, “[t]he guys furnish all their hand tools, that’s nail guns, they’ve got—they carry their own compressors and everything.” 8 At oral argument, Mid-Contin e nt contended that the district court’s finding that, “there is no evidence that Davis or Davi s C o nstruction ever provided any of the crew membe r s with tools” (emphasis added) was clearly

erroneous. We agree that this partic ular factual finding is clearly erroneous

9 because, as discussed above, there was a statement by Vidal Negrete that Davis Construction provided some tools to crew members. However, considering the inherent inconsistency of Vidal Negrete’s testimony, coupled with the testimony from crew members and Davis himself that shows Davis did not provide tools for the crew, the district court did not clearly err in finding that the evidence overall showed that Davis did n o t p rovide tools to the crew members and that Davis Construction crew m e m b ers either provided their own tools or borrowed tools from other crew members. Moreover, the district court did not err in any of the other factual findings it made in its analysis of the second Limestone f a c t o r
. 1 0

Da vis cont inuedt o e xplaint hat no othe r too ls we re need ed: “[ t] o build a hous e, you 8 need a nail gun and a com pr es so r and so me nails and that ’s it. ” Later , Davis reit erat ed, “[ t] he guys thatw orkou t ther e. Eac h o ne has gott heirow n s et of too ls. ”
Mid -Cont inent fai led to mak e this argum e n t i n any of its brie fing to this cour t, but 9
we nonet heles s addre ss this argum ent beca use this fac tual find ing is inclu ded in the dist ric t cour t’s analys is of the se cond L i m e stone fac tor and ther efo re nece ss ary to a revie w of the dis tri ct cour t’s f

act ual find ing r egard ing t hat fac tor

. Da vis ’ tes tim ony sup por ts the dis tri ct cour t’s find ing that thou gh cre w me mbe rs we re 1 0 not res pons ible f

o r pr ovidi ng mat eria ls for the jobs , Da vis Cons tru cti on als o did not have ulti mat e res pons ibili ty for pr ovidi ng mat eria ls. A genera l contr a ct or wo u ld so me tim es requ es t t h a t Da vis or Ritc hie plac e an ord er for nece ss ary mat eria ls, suc h as wo od, but the g e n e r a l cont rac tor ret ained ulti mat e res pons ibili ty for pr ovis ion of and paym ent form ater ials

. In a fac tuall y sim ilar cas e, Anc hor Cas. Co. v. O. E. Ha rtsf ie ld , 390 S. W.2 d 469 (Tex. 1965) , wh ere the genera l c ontr act or fur nis hed mat eria ls need ed fort he job, t he cour t did not dis cus s that fac t as we ighing in favor of eit her a find ing that Ha rts fie ld wa s an em plo yee or an inde pend ent 8 Case: 11-10142 Document: 00511881397 Page: 8 Date Filed: 06/08/2012No. 11-10142

Therefore, we conclude that the district court did not err in its ultimate factual finding that the second Limestone factor weighs in favor of a determination that Serrato was an independent contractor. The district court held that the third Limestone factor, “the worker’s right to c o n t r ol the progress of the work except about final results,” also supported finding that Serrato was an independent contractor and not employee of Davis Construction. See Limestone , 71 S.W.3d at 312. The freedoms that the district court correctly lists to support its third Limestone factor analysis—that the crew members were free to choose when to start and stop work each day and decided
among themselves which p a r t icular task each worker would perform and the
ways in which tasks were to b e completed—are supported by evidence in the record. See id. (finding that a worker’s ability to s e t h i s o w n hours supports a finding that the worker was an i n d e p endent contractor); Anchor Cas. , 390 S.W.2d at 471 (same). I n h i s deposition and at trial, Ritchie testified that: (1) the crew members, not Davis, divided up who does what on the job site; (2) that though the crew members generally worked eight-hour days, they set their own hours and "they showed up when they showed up." Similarly, Davis testified at trial that: (1) he did not set work hours for the crew; (2) he did not keep track of the actual hours each crew member worked; (3) he did not assign crew members particular tasks; and (4) he "primarily just want[ed] them to do the job and get it done." Finally, Vidal Negrete testified at trial that: (1) the crew members, not

cont rac tor and ulti mat ely held that a wo rk e r f o r t h e sub cont rac tor wa s an inde pend ent cont rac tor

. Id. at 470–71 (ho ldi ng that Ha r t s f i e l d w as an inde pend ent cont rac tor of sub cont rac tor Wolf

f wh ere Ha rts fie ld wa s an expe rien ced fini sh car pent er wh o fur nis hed his
ow n too ls, se t his ow n hours , wa s paidby the job, andw as not car ried on the so cial se cur ity
or inco me t ax w ithho ldi ng r olls of Wo lff ). 9 Case: 11-10142 Document: 00511881397 Page: 9 Date Filed: 06/08/2012No. 11-10142

Davis, set their work start and stop times and (2) that Davis did not assign tasks to the crew members. Mid-Continent a rgues that Davis Construction, not Serrato or the other

crew members, controlled the progress of the work because Davis tried to come by the job site once a day to check on the work and supervisor Ritchie reported to Davis daily on th e p rogress being made on the job. However, Davis did not control each step of the progress of the job; instead, he only made sure that the work was being done according to blueprints, identified any problems with the work and asked that they be corrected, and tried to speed up the work if it was progressing too slowly. See Limest o n e , 7 1 S.W.3d at 313 (holding that where evidence establishes that employer “merely contro l l e d the end sought to be accompl i shed” and the worker “controlled the means and details of accomplishing the work,” the worker was an independent contractor). The district court f

o u n d that the fourth Limestone factor, “the time that the worker is employed,” supported a finding that Serrato was an independent contractor because Serrato was “employed for two week ti m e periods several times over the course of approximately eighteen months.” Se e i d. at 312. The district court’s factual findings that support its analysis of this factor—that crew members were only employed by Davis Construction for t h e t i m e t hat it takes to complete one job and t h a t t here was no guarantee that Davis would hire a

c r e w member for the next job or that there will even be a next job—are supported by testimony at trial. Davis testified at trial that the crew members only get paid if they are working a job, stating, “[i]f they don’t work, no, sir, there is no pa y . ” M o reover, the evidence shows that one crew member, Eduardo Negrete, worked for Davis Construction for three or four ye a r s, but not

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continuously, and “left in 2008 and all when work got slow.” Eduardo Negrete later returned to working for Davis. Mid-Continent argues that the fact that Ritchie had worked continuously for Davis Construction for seventeen years an d Vi d a l N egrete for eight years when Serrato’s accident occurred in 2007 supports a finding that Serrato and the other crew members were employees. However, a long-term relationship does not necessarily mean that relationship is employer-emp l o y ee. See id. at 310 (holding that a driver who had worked for the same entity for more than three
years was an independent contractor). More importantly, Serrato, the subject of the district court’s analysis, had only been working for Davis Construction for
app roximately eighteen months to two years prior to his June 2007 accident. Therefore, we c a nnot say that the district court clearly erred when it credited testimony that the fourth Limestone factor supported a finding that Serrato was an independent contractor. Finally, the district court found that th e f ifth Limestone factor, “the method of payment, whether by unit of time or by the job,” weighed strongly in favor of finding that Serrato was an independent contractor. See id. at 312. The district court found that: (1) the amount of time ea c h crew member was employed and the amount each crew member was paid depended on the job; (2) 1 1 Davis did not wi t h h old any social security, federal withholding taxes, or M edicare from the payments he made to crew members; (3) Davis di d n o t p a y the State of Texas unemployment taxes based on compensation being paid to the

crew members; and (4) Davis issued each crew member a 1099 at the end of the

As the dis tri ct cour t cor rec tly note d fr om Davis’ tes tim ony at tri al, Ser rat o wa s paid 1 1 betw een $300 and $400 perw eek

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year. These findings, supported by evidence in the record, support a 1 2 determination that t h e f i f t h Limestone factor weighs in favor of finding that Serrato was an independent contractor. See id. at 312–13 (h o l d ing that the worker was an independent contractor where the worker’s income was reported

on a 1099 form instead of a W-2 and the worker paid his own social security and federal income taxes); Anchor Cas. , 390 S.W.2d at 471 (holding that the fact that the worker was not on the social security and income tax withholding rolls of the subcontractor helped establish the worker was an independent contractor). Mid-Co n t i n e nt argues that the district court erred in its fifth Limestone factor analysis because there is testimony in the record from crew members Vidal Negrete and Hector Sanchez that they were pai d a t a n hourly rate. However, there is also ample conflicting testimony from Davis and Ritchie that

crew members were not paid hourly and were, instead, paid a weekly rate, which varied based on the job, and was the same rate regardless of how m a n y h o urs they actually work each week. Therefore, because there is conflicting evidence 1 3

Not ably, Da vis tes tif

ied that he wa s audi ted by the IRS in 1993 and the IRS did not 1 2 at that tim e ques t i o n his clas sif icat ion of the me mbe rs of the fr ami ng cre w as inde pend ent cont rac tor s. Da vis als o tes tif iedt hat his CPA never ques tio ned himabo ut his clas sif icat ion of the fr ami ng c rewm em bers

.

Ritc hie tes tif

ied that : (1) the amo unt of mo ney he wa s paid per we ek “ch anged per 1 3 job; ” (2) that “[ e]ve ry job pays d i f f e rent ly. There is mo re mo ney is so me jobs than ther e is othe r jobs , and if a job are [s ic] larger , mo re comp lex, they pay mo re, you kn ow ;” and (3) that the amo unt he wa s paid wa s the sam e regar dle ss of the num ber of days h e w o r k e d i n a par tic ular we ek

. Da vis tes tif ied at tri al that he calc ulate d the cre w me mbe rs ’ pay, wh ich wa s by the we ek , in t h e f

o l l o w i n g m a n n er: “It is mo re or les s wh en I bid a job, as I put in my dep os itio n, that I about kn ow w h at it tak es in labor cos ts to build that hous e up to 12 days , and so I brea k it dow n that wa y due to thei r expe rien ce an d e v e r ything, ” an expla natio n he rep eate d late r dur ing his tes tim ony. When Davis wa s aske d again about the cre w me mbe rs ’ pay, he st ated , “it is bas ed on the bid of the job

. . . .” Da vis expla ined that the cre w me mbe rs “w ould be com pens ated by the amo unt of the mo ney I wa s able to dr aw fr om the build er for the amo unt of wo rk that wa s done. ” Da vis also tes tif ied at tri al that the week ly rat e he paid
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in the record, the district court did not err by giving more weight to the testimon y o f D a vis and Ritchie and finding that Davis Construction framing

crew m e mbers were paid by the job. See Halliburton v. Texas Indem. Ins. Co. , 213 S.W.2d 677, 679–81 (Tex. 1948) (holding that workers’ calculation o f their
pay in order to receive a certain hourly rate did not make them employees when the majority of other evidence presented weighed in fav o r of finding workers were independent contractors). In sum, the facts of this case may be analogized to the facts of Limestone , where the Tex a s Supreme Court held that summary judgment evidence established that Mathis, a distributer, was, as a matter of law, an independent contractor. 71 S.W.3d at 313. In Limestone , Coy Mathis had been an employee of Limestone Products for a long period of time when Limestone Products changed his designation to an independent c ontractor, including changing his tax documentation from a W

- 2 t o a 1099 form. Id. at 310. Mathis had been working for Limestone for more than three years as both an employee and then

as an independent contractor when his accident occurred. Id. The court found that Mathis was an independent contractor bec a u s e h e provided his own tools (including his truck); paid his own insurance, social security and federal income taxes; no longer received workers’ comp e n s a t ion coverage from Limestone; received a 1099; and had considerable discretion regarding the details of his

w o rk and how to complete it. See id. at 312–13. Similarly, here, S e r r a t o provided his own tools (or borrowed the m f r o m o t her crew members); did not have social security or federal income taxes withheld; was issued a 1099 (not a W

- 2 ) f rom Davis Construction; was not provided w o rk e r s ’ c o m p e n s ati o n c ov e r a g e

cre w me mbe rs d id not vary b ase d on the act ual num ber of hours w ork ed perw eek

. 13 Case: 11-10142 Document: 00511881397 Page: 13 Date Filed: 06/08/2012No. 11-10142

f r o m Davis Construction; and had discretion over the details of how his w o r k was to be completed. The district court did not abuse its discretion because, as discussed above, there is evidence in the record to support the factual findings the district court made that four of the five Limestone factors, the remaining f a c t o r being inconclusive, weigh in favor of the conclusion that Serrato was an independent contractor and not an employee of Davis Construction. CONCLUSION For the foregoing reasons, we AFFIRM the district court’s final judgment that Mid-Continent has a duty to indemnify Davis Construction in the und e rlying wrongful death action brought by the family of decedent Serrato, based on a conclusion that Serrato was an independent contractor.

14 Case: 11-10142 Document: 00511881397 Page: 14 Date Filed: 06/08/2012