Opinion filed October 9, 2008

In The

Eleventh Court of Appeals

__________

No. 11-07-00370-CV

__________

DENNIS VERNER, Appellant

V.

PATTERSON-UTI ENERGY, INC.; PATTERSON-UTI DRILLING

COMPANY; AND PATTERSON-UTI DRILLING COMPANY WEST LP,

LLLP, Appellees

On Appeal from the 385th District Court

Midland County, Texas

Trial Court Cause No. CV46255

M E M O R A N D U M O P I N I O N

This case arises from an on-the-job injury. Dennis Verner appeals from the trial court’s takenothing summary judgment in favor of Patterson-UTI Energy, Inc.; Patterson-UTI Drilling Company;

and Patterson-UTI Drilling Company West LP, LLLP on his claims. We affirm.

Background Facts

On June 4, 2003, Verner was injured in an oilfield accident. He claimed that his injury

resulted from the improper operation of a defective top drive motor. Following the accident, Verner

brought a negligence suit against the following defendants: (1) National Oilwell, Inc.; (2) Pure
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Resources, Inc., d/b/a Texas Pure Resources, Inc.; (3) Pure Resources I, Inc.; (4) Patterson-UTI

Energy, Inc.; (5) Patterson-UTI Drilling Company; and (6) Patterson-UTI Drilling Company West

LP, LLLP. He alleged that, at the time of the accident, he was working for Patterson-UTI Drilling

Company West LP, LLLP (Patterson West), which was conducting drilling operations at Rig

No. 488. Verner alleged that the defendants committed negligence in connection with the operation

of the top drive unit.

The three Patterson defendants filed a traditional motion for summary judgment. They

moved for summary judgment on the following grounds: (1) that the exclusive remedy provision of

the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 408.001 (Vernon 2006), barred

Verner’s claims against Patterson West and (2) that Patterson-UTI Drilling Company (Patterson

Drilling) and Patterson-UTI Energy, Inc. (Patterson Energy) did not owe a duty to Verner. Patterson

Drilling and Patterson Energy also filed a no-evidence motion for summary judgment on a lack of

duty ground.

Verner filed a response to the traditional and no-evidence motions for summary judgment,

and the Patterson defendants filed a reply to Verner’s response. Following a hearing, the trial court

entered an order granting summary judgment to the Patterson defendants. The trial court’s order did

not specify the ground or grounds relied on for its ruling. The trial court severed Verner’s claims

against the Patterson defendants from the remainder of the suit, and the summary judgment became

final and appealable.

Issues on Appeal

Verner presents four issues for review. In his first issue, he contends that the trial court erred

in sustaining the Patterson defendants’ objections to the exhibits that were attached to his attorney’s

affidavit. In his second and third issues, he asserts that the trial court erred in granting summary

judgment to Patterson Drilling and Patterson Energy because (1) there was more than a scintilla of

evidence that they were contractors under the daywork drilling contract and (2) the daywork drilling

contract and the corporate scheme of the Patterson entities created a duty to those, like Verner, who

worked on the rig. In his fourth issue, Verner asserts that the trial court erred in granting traditional

summary judgment to Patterson West because a fact question existed as to who was his employer

at the time of the accident.
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Standard of Review

Where, as here, a trial court’s order granting summary judgment does not specify the ground

or grounds relied upon for its ruling, summary judgment will be affirmed on appeal if any of the

summary judgment grounds advanced by the movant are meritorious. Dow Chem. Co. v. Francis,

46 S.W.3d 237, 242 (Tex. 2001). We will begin our analysis by reviewing the trial court’s summary

judgment under the standard of review for traditional summary judgments. A trial court must grant

a traditional motion for summary judgment if the moving party establishes that no genuine issue of

material fact exists and that the movant is entitled to judgment as a matter of law. TEX. R. CIV.

P. 166a(c); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991). In order for a defendant

to be entitled to summary judgment, it must either disprove an element of each cause of action or

establish an affirmative defense as a matter of law. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420,

425 (Tex. 1997); Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). Once the

movant establishes a right to summary judgment, the nonmovant must come forward with evidence

or law that precludes summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d

671, 678-79 (Tex. 1979). When reviewing a traditional summary judgment, the appellate court

considers all the evidence and takes as true evidence favorable to the nonmovant. Am. Tobacco Co.,

951 S.W.2d at 425; Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). The

appellate court “must consider whether reasonable and fair-minded jurors could differ in their

conclusions in light of all of the evidence presented” and may not ignore “undisputed evidence in

the record that cannot be disregarded.” Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754,

755, 757 (Tex. 2007). 

Summary Judgment Evidence

The Patterson defendants presented two affidavits from Mark Cullifer, the vice president of

Patterson UTI Drilling Company, LLC, and an affidavit from Steve J. McCoy, the vice president

of marketing at Patterson-UTI Drilling Company, LLC, in support of their traditional motion for

summary judgment. They also presented excerpts from Verner’s deposition testimony and exhibits

from Verner’s deposition. Verner presented Cullifer’s deposition testimony, as well as the exhibits

to Cullifer’s deposition, and an affidavit from his attorney, Mark A. Cevallos, in opposition to the

Patterson defendants’ motions for summary judgment.
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The Exclusive Remedy Provision of the TWCA

In his fourth issue, Verner contends that a fact issue existed as to who employed him at the

time of the accident. The TWCA provides that “[r]ecovery of workers’ compensation benefits is the

exclusive remedy of an employee covered byworkers’ compensation insurance coverage . . . against

the employer . . . for . . . a work-related injury sustained by the employee.” Section 408.001(a). The

exclusive remedy provision of the TWCA is an affirmative defense. Morales v. Martin Res., Inc.,

183 S.W.3d 469, 471 (Tex. App.—Eastland 2005, no pet.). To establish the exclusive remedy

defense, a defendant must show (1) that it was the plaintiff’s employer within the meaning of the

TWCA and (2) that it was covered by a workers’ compensation insurance policy. W. Steel Co. v.

Altenburg, 206 S.W.3d 121, 123-24 (Tex. 2006). 

Patterson West pleaded the exclusive remedy provision as an affirmative defense. In the

summary judgment context, Patterson West had the burden of proving its exclusive remedy

affirmative defense as a matter of law. Am. Tobacco Co., 951 S.W.2d at 425; Sci. Spectrum, Inc.,

941 S.W.2d at 911. Cullifer stated in his affidavits that, at the time of the accident, Verner was

employed by, and in the course and scope of his employment with, Patterson West. He also stated

that Patterson West provided workers’ compensation insurance to its employees and that Verner had

applied for and had received workers’ compensation benefits from Patterson West’s workers’

compensation insurance carrier, Liberty Insurance Corporation. Cullifer attached exhibits to his

affidavits showing that Patterson West had workers’ compensation insurance on the date of Verner’s

accident.

Verner alleged in his petition that he was working for Patterson West at the time of the

accident. In addition, he testified that he worked for “Patterson-UTI Drilling West LP.” His

paycheck stubs showed that his employer was “Patterson-UTI Drilling West LP, LLLP,” and his W-2

showed that his employer was “Patterson-UTI Drilling West LP, a limited partnership.” Verner also

testified that he had received workers’ compensation benefits as a result of the accident. Although

the TWCC records attached as exhibits to Cevallos’s affidavit showed some confusion on the part

of the TWCC and Liberty Insurance Corporation as to the name of Verner’s employer, Cullifer

presented detailed evidence establishing that Patterson West was Verner’s employer at the time of

the accident. Summary judgment based on the uncontroverted affidavit of an interested witness is
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proper if the evidence is clear, positive, direct, otherwise credible, and free from contradictions and

inconsistencies and could have been readily controverted. Rule 166a(c); Trico Techs. Corp. v.

Montiel, 949 S.W.2d 308, 310 (Tex. 1997). “Could have been readily controverted” does not mean

that the summary judgment evidence could have been easily and conveniently rebutted but, rather,

indicates that the testimony could have been effectively countered by opposing evidence. Trico

Techs. Corp., 949 S.W.2d 310. Cullifer’s affidavits were sufficient to establish Patterson West’s

exclusive remedy affirmative defense as a matter of law. Verner’s deposition testimony provided

additional evidence that he was employed by Patterson West. 

The trial court did not err in granting summary judgment to Patterson West on the ground

that the exclusive remedy provision in the TWCA barred Verner’s claims against it. We overrule

Verner’s fourth issue. 

In his first issue, Verner contends that the trial court erred by sustaining the Patterson

defendants’ objections to the exhibits that were attached to Cevallos’s affidavit. We need not

address whether the trial court erred in sustaining the objections because, even assuming that the

affidavit and exhibits were competent summary judgment evidence, they failed to raise a fact issue

on the employment issue. We overrule Verner’s first issue. 

Duty Issues

In his second issue, Verner contends that the trial court erred in granting summary judgment

to Patterson Drilling and Patterson Energy because fact issues existed as to whether they were the

contractors under the subject daywork drilling contract. In his third issue, Verner asserts that the

drilling contract and Patterson’s “corporate scheme” created a duty to him. To establish negligence,

the plaintiff must produce evidence of a legal duty owed by the defendant to the plaintiff, a breach

of that duty, and damages proximately caused by that breach. Lee Lewis Constr., Inc. v. Harrison,

70 S.W.3d 778, 782 (Tex. 2001). Whether a duty exists is a threshold question of law; liability

cannot be imposed if no duty exists. Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006).

A daywork drilling contract covered the operations on Rig No. 488 at the time of the

accident. In the contract, “Patterson-UTI Drilling Co.” was identified as the contractor, and Pure

Resources, LP, was identified as the operator. The signature lines in the contract indicate that it was
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accepted on January 6, 2003, by “Patterson-UTI Drilling Co., a limited partnership” as contractor,

by the signature of Steve J. McCoy, as vice president of marketing. 

Cullifer and McCoy both explained in their affidavits that the company names listed in the

contract – “Patterson-UTI Drilling Co.” and “Patterson-UTI Drilling Co., a limited partnership” –

were mistakenly placed in the contract and did not correctly identify any entities that were in

business in 2003. Cullifer stated the following facts in his affidavits: (1) that, in 2003, no entity

named “Patterson-UTI Drilling Company,” “Patterson-UTI Drilling Co.,” or “Patterson-UTI Drilling

Co., a limited partnership” existed; (2) that, in 2003, a company named “Patterson-UTI Drilling

Company LP, LLLP,” which was a Delaware limited partnership, existed; (3) that Patterson-UTI

Drilling Company LP, LLLP was the limited partner and 99% owner of Patterson West; (4) that

Patterson-UTI Drilling Company LP, LLLP did not participate in the management or the day-to-day

drilling operations of Patterson West; (5) that, at that time, “Patterson (GP2) LLC,” which was a

Delaware limited liability company, was the general partner and 1% owner of Patterson West;

(6) that Patterson (GP2) LLC did not participate in the management or the day-to-day drilling

operations of Patterson West; (7) that Patterson West owned, operated, and maintained Rig No. 488;

and (8) that no other Patterson entity retained or exercised any control over the operation or

maintenance of the rig or equipment being used on the rig.

McCoy stated the following facts in his affidavit: (1) that he accepted the contract on

January 6, 2003; (2) that, at that time, he was employed by Patterson West and was not employed

by, or an officer of, any other Patterson entity; (3) that, at the time he executed the contract, he knew

the contract would be performed by Patterson West, using only its employees and equipment; (4) that

he should have executed the contract as an authorized agent on behalf of Patterson West; (5) that the

contract should have identified the contractor as Patterson West; and (6) that Patterson West

performed the contract.

Cullifer’s and McCoy’s affidavits were sufficient to establish that the names “Patterson-UTI

Drilling Co.” and “Patterson-UTI Drilling Co., a limited partnership” were placed in the contract by

mistake and that Patterson West owned, operated, and controlled Rig No. 488. There was no

summary judgment evidence that any Patterson entity other than Patterson West actually controlled

or had a right to control the operation of the rig. 
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Cullifer explained in detail in his affidavits the corporate structure of the Patterson entities.

He stated the following facts, among others: (1) that, during the time period in question, Patterson

Energy did not control the drilling operations of any Patterson entity; (2) that Patterson Energy did

not own, operate, or maintain Rig No. 488; and (3) that Patterson Energy did not employ, supervise,

or control any of the employees who worked for Patterson West on Rig No. 488. Cullifer explained

that Patterson Energy owned a number of subsidiary Patterson entities and that Patterson Energy’s

subsidiaries “were maintained as separate entities, with the appropriate formalities.” A flow chart

showing Patterson’s subsidiary structure, as of August 19, 2003, was attached as an exhibit to

Cullifer’s deposition. Cullifer’s deposition testimony about the Patterson entities’ corporate

structure was consistent with the facts stated in his affidavits. 

Cullifer’s affidavits established that Patterson Energy was a separate legal entity from

Patterson West and that Patterson Energy did not control or have a right to control the operations on

Rig No. 488. Verner contends that the “corporate scheme” of the Patterson entities created a

“sham.” However, Cullifer stated that the Patterson entities in question were maintained as separate

entities and followed the appropriate formalities. Verner did not present any summary judgment

evidence to the contrary.

The summary judgment evidence established that Patterson Drilling and Patterson Energy

did not owe a duty to Verner. The trial court did not err in granting a traditional summary judgment

to Patterson Drilling and Patterson Energy. We overrule Verner’s second and third issues.

This Court’s Ruling

We affirm the judgment of the trial court.

TERRY McCALL

JUSTICE 

October 9, 2008

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.