TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-21-00086-CV

Texas Mutual Insurance Company, Appellant

v. 

Hofer Builders, Inc. and Hartford Underwriters Insurance Company, Appellees 

FROM THE 353RD DISTRICT COURT OF TRAVIS COUNTY

NO. D-1-GN-17-005825, THE HONORABLE JESSICA MANGRUM, JUDGE PRESIDING

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

 In this workers’ compensation case, Texas Mutual Insurance Company appeals 

from the trial court’s rulings in favor of Hofer Builders, Inc. (HBI) and Hartford Underwriters 

Insurance Company (Hartford) on the parties’ cross motions for summary judgment in the 

underlying declaratory judgment action. For the following reasons, we reverse and render 

judgment in favor of Texas Mutual.1

BACKGROUND

 The parties’ dispute concerns whether Texas Mutual is contractually liable to

reimburse HBI or Hartford for Louisiana workers’ compensation benefits that Hartford paid to 

1 Because the parties’ cross motions for summary judgment rely on evidence that we 

described in a prior appeal from the underlying proceeding, we do not restate the evidence here

except as is necessary to address the issues raised. See Tex. R. App. P. 47.1, .4; Texas Mut. Ins. 

v. Hofer Builders, Inc., No. 03-17-00741-CV, 2019 Tex. App. LEXIS 5562, at *2–6, *16–19 

(Tex. App.—Austin July 3, 2019, no pet.) (mem. op.). 
2

HBI’s employee David Hope. Hope, who resided in Florida, was injured in December 2014 at a 

Louisiana construction worksite. Hartford was the workers’ compensation insurer for the 

general contractor, HBI was a subcontractor, and Texas Mutual was the workers’ compensation 

insurer for HBI. See Tex. Ins. Code § 2054.151 (explaining that Texas Mutual serves as “insurer 

of last resort”).

HBI’s workers’ compensation insurance policy with Texas Mutual included a

standard form endorsement, entitled “Limited Reimbursement for Texas Employees Injured in 

other Jurisdictions” (the Endorsement). See Tex. Lab. Code § 406.051(b) (“The contract for 

coverage must be written on a policy and endorsements approved by the Texas Department of 

Insurance.”); see also Tex. Ins. Code § 2052.002(b) (prohibiting insurance company from using 

form other than one prescribed under section for workers’ compensation insurance unless form is 

endorsement that is “appropriate to company’s plan of operation” and “submitted to and 

approved by the department”). The Endorsement references Texas Labor Code sections 406.071 

and 406.072 and incorporates statutory language from section 406.071. See Tex. Lab. Code 

§§ 406.071–.072.

2

2 Subsections 406.071(a) and (b)(1) provide:

(a) An employee who is injured while working in another jurisdiction or the 

employee’s legal beneficiary is entitled to all rights and remedies under this subtitle if:

(1) the injury would be compensable if it had occurred in this state; and

(2) the employee has significant contacts with this state or the employment is principally 

located in this state.

(b) An employee has significant contacts with this state if the employee was hired or 

recruited in this state and the employee:

(1) was injured not later than one year after the date of hire; . . . .
3

The Endorsement states in relevant part:

This policy does not provide “other states” insurance coverage. This endorsement 

provides reimbursement coverage to you for those Texas employees who are 

described in the Texas Labor Code §§ 406.071–.072. Therefore the coverage is 

for injuries to your Texas employees that occur in another state if (i) the injury 

would have been compensable had it occurred in Texas and (ii) the employee has 

significant contacts with Texas or the employment is principally located in Texas. 

An employee has significant contacts with Texas if the employee was hired or 

recruited in Texas, and (i) the employee was injured not later than one year after

the date of hire; or (ii) has worked in Texas for at least ten working days during 

the twelve months preceding the date of injury.

Employees hired or recruited by you outside Texas to work in another state are 

specifically excluded from the terms and provisions of this policy. If you conduct 

business in states other than Texas, you must comply with those state laws. You 

must promptly notify your agent before you begin work in any jurisdiction other 

than Texas. We are not authorized to provide workers’ compensation insurance

in any jurisdiction other than Texas. You are responsible for all of your legal 

obligations for your failure to comply with requirements of the workers’

compensation laws of any jurisdiction other than Texas.

See id. When the Endorsement applies, Texas Mutual is contractually liable to reimburse 

workers’ compensation benefits paid to Texas employees injured out of state, including in

Louisiana.

This is the second appeal from the underlying proceeding. See generally Texas 

Mut. Ins. v. Hofer Builders, Inc., No. 03-17-00741-CV, 2019 Tex. App. LEXIS 5562 (Tex. 

App.—Austin July 3, 2019, no pet.) (mem. op.). The prior appeal was also from summary 

judgment rulings in favor of HBI and Hartford and concerned the scope of the extraterritorial

coverage provided by the Endorsement and the Texas Labor Code. See id. Because Hope’s 

injury occurred within a year of being hired by HBI and his injury would have been compensable 

Tex. Lab. Code § 406.071(a), (b)(1).
4

if it had occurred in Texas,

3 the parties primarily joined issue as to whether Hope had

“significant contacts” with Texas because he was “hired or recruited” in Texas. See id. at *19–

20; Tex. Lab. Code § 406.071(a)(2), (b)(1) (setting forth test for determining if employee injured

within one year of hire date has significant contacts with Texas). We affirmed the portion of the 

trial court’s order denying Texas Mutual’s motion for summary judgment, reversed the portion 

of the order granting summary judgment in favor of HBI and Hartford, and remanded the case to 

the trial court for further proceedings. See Hofer Builders, 2019 Tex. App. LEXIS 5562, at *1.

In determining that the evidence did not establish that Hope was “hired or 

recruited” in Texas, we noted that Hope’s physical location was in Florida during the hiring 

process and explained that our interpretation of the Endorsement was consistent with the 

extraterritorial statutes as a whole:

We further observe that interpreting the phrase “hired or recruited in this state” by 

focusing on the employee’s physical location is consistent with extraterritorial 

statutes as a whole. [El Paso Healthcare Sys., Ltd. v. Murphy, 518 S.W.3d 412, 

418 (Tex. 2017).] Consistent with determining whether an employee has 

significant contacts based on the employee’s location at the time the employee is 

hired or recruited, the focus of the inquiry as to the principal location of 

employment is on the employee’s location after he or she has begun working—it 

is either “where” “the employer has a place of business at or from which the 

employee regularly works” or “the employee resides and spends a substantial part

of the employee’s working time.” See Tex. Lab. Code § 406.072; Webster’s

Third New Internat’l Dict. at 2602 (defining “where” to mean “at or in what 

place” and stating that “where” refers to “location” or “place”). This 

interpretation also adheres to the intent of Texas workers’ compensation laws that 

the “entire statute is intended for the benefit of Texas employees and because

industry in Texas should not have the burden of providing insurance to employees 

3 Because Hope received Louisiana workers’ compensation benefits, he was not eligible 

for Texas workers’ compensation benefits. See Tex. Lab. Code § 406.075(a) (“An injured 

employee who elects to pursue the employee’s remedy under the workers’ compensation laws of 

another jurisdiction and who recovers benefits under those laws may not recover under 

this subtitle.”).
5

of other states.” Texas Emp’rs’ Ins. Ass’n v. Dossey, 402 S.W.2d 153, 155 (Tex. 

1996) (quoting Hale v. Texas Emp’rs’ Ins. Ass’n, 239 S.W.2d 608 (Tex. 1951)).

Id. at *26–27. We further explained that the trial court did not err in denying Texas Mutual’s 

motion for summary judgment because “even if the summary judgment evidence conclusively 

established that Hope was not hired or recruited in Texas, Texas Mutual would have had to 

specifically argue in its motion for summary judgment and then conclusively establish that 

Hope’s employment was not principally located in this state to be entitled to summary judgment”

and that Texas Mutual “did not expressly make this argument in its motion for summary 

judgment.” Id. at *32 (citing Tex. R. Civ. P. 166a(c) (“Issues not expressly presented to the trial 

court by written motion, answer or other response shall not be considered on appeal as grounds 

for reversal.”)).

On remand, the parties again filed cross motions for summary judgment, joining 

issue as to the principal location of Hope’s employment. See Tex. Lab. Code § 406.071(a)(2) 

(providing that employee who is injured while working out of state is entitled to benefits if injury 

would have been compensable in Texas and “the employment is principally located in this 

state”). The “principal location of a person’s employment is where: (1) the employer has a place 

of business at or from which the employee regularly works; or (2) the employee resides and

spends a substantial part of the employee’s working time.” Id. § 406.072. It was undisputed that 

(i) Hope’s injury would have been compensable had it occurred in Texas; (ii) because Hope was 

a Florida resident but spent his working time exclusively in Louisiana, subsection (2) of section 

406.072 was inapplicable; and (iii) Texas Mutual was liable under the Endorsement if Hope’s 

employment was principally located in Texas.
6

In their motion for summary judgment, HBI and Hartford asserted that Texas was 

the principal location of Hope’s employment because HBI’s only place of business was its office 

in Saginaw, Texas. In its cross motion, Texas Mutual countered that Hope’s employment was 

not principally located in Texas because after he was hired, he worked exclusively in Louisiana 

until he was injured. Texas Mutual also asserted that Hope’s injury was not covered under part 

one of HBI’s policy because Hope received workers’ compensation benefits from Louisiana, see

id. § 406.075(a), and that the Endorsement did not provide coverage for Hope’s injury because

he was not hired or recruited in Texas, see id. § 406.071(b). Without stating its reasoning, the

trial court granted final summary judgment in favor of HBI and Hartford and denied Texas 

Mutual’s motion. This appeal followed.

ANALYSIS

In one appellate issue, Texas Mutual challenges the trial court’s summary 

judgment rulings, contending that, as a matter of law, neither HBI nor Hartford is entitled to 

reimbursement from Texas Mutual for Louisiana workers’ compensation benefits paid to Hope.

Standards of Review

“A trial court’s ruling on a motion for summary judgment is reviewed de novo.”

Tarr v. Timberwood Park Owners Ass’n, 556 S.W.3d 274, 278 (Tex. 2018) (citing Joe v. Two

Thirty Nine Joint Venture, 145 S.W.3d 150, 156 (Tex. 2004)). “To prevail on a traditional 

motion for summary judgment, the movant must show that no genuine issue of material fact 

exists and that it is entitled to judgment as a matter of law.” Id. (citing Tex. R. Civ. P. 166a(c)). 

When competing motions for summary judgment are filed, as is the case here, “each party bears 

the burden of establishing that it is entitled to judgment as a matter of law.” Id. (quoting City of 
7

Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex. 2000)). “When faced with 

competing summary judgment motions where the trial court denied one and granted the other, 

we consider the summary judgment evidence presented by both sides, determine all questions 

presented, and if the trial court erred, render the judgment the trial court should have rendered.”

Southwestern Bell Tel., L.P. v. Emmett, 459 S.W.3d 578, 583 (Tex. 2015).

Resolution of Texas Mutual’s issue also requires this Court to interpret the 

Endorsement. “When construing an insurance policy, we ordinarily ‘ascertain and give effect to 

the parties’ intent as expressed by the words they chose to effectuate their agreement.’” Wausau 

Underwriters Ins. v. Wedel, 557 S.W.3d 554, 557 (Tex. 2018) (quoting In re Deepwater Horizon, 

470 S.W.3d 452, 464 (Tex. 2015) (orig. proceeding)). Because the Endorsement incorporates 

sections 406.071 and 406.072 of the Labor Code, we also must consider statutory language. See

Ingram v. Deere, 288 S.W.3d 886, 899 (Tex. 2009) (applying rules of construction to contract 

governed by statutory terms). Statutory construction similarly “‘begins with the Legislature’s 

words,’ looking first to their plain and common meaning.” Murphy, 518 S.W.3d at 418 (quoting 

Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865–66 (Tex. 1999)); see also

Presidio Indep. Sch. Dist. v. Scott, 309 S.W.3d 927, 930 (Tex. 2010) (construing text according 

to “plain and common meaning unless a contrary intention is apparent from the context or unless 

such a construction leads to absurd results” (citing City of Rockwall v. Hughes, 246 S.W.3d 621, 

625–26 (Tex. 2008))). “In conducting this analysis, ‘we look at the entire act, and not a single 

section in isolation.’” Murphy, 518 S.W.3d at 418. This “text-based approach to statutory 

construction requires us to study the language of the specific provision at issue, within the 

context of the statute as a whole, endeavoring to give effect to every word, clause, and sentence.”

Id. (quoting Ritchie v. Rupe, 443 S.W.3d 856, 867 (Tex. 2014)).
8

Part One of HBI’s policy

As one of its grounds supporting summary judgment, Texas Mutual asserted in its 

motion that it was not liable under part one of HBI’s policy. In response, HBI and Hartford 

make clear that they only seek reimbursement under the Endorsement. In their briefing to this 

Court, they affirmatively state that they “are not seeking to recover under Part One of the policy”

and “have not asserted a claim for coverage under Part One because Hope pursued and recovered 

Louisiana, not Texas, workers’ compensation benefits.” Based on HBI and Hartford’s

concession that Texas Mutual is not liable under part one of the policy, we need not address this 

ground. See, e.g., Wojcik v. Wesolick, 97 S.W.3d 335, 336–37 (Tex. App.—Houston [14th Dist.] 

2003, no pet.) (concluding that appellee had abandoned ground asserted to trial court by 

affirmatively “stating in its brief that it ‘does not contend at this time [ground asserted to trial 

court]’”); Hall v. Tomball Nursing Ctr., Inc., 926 S.W.2d 617, 619 (Tex. App.—Houston [14th 

Dist.] 1996, no writ) (concluding that appellate court did not need to address ground where 

counsel affirmatively “conceded” during oral argument that “judgment could not stand if it were 

based on this ground”).

Significant Contacts

Texas Mutual also asserted in its motion for summary judgment that it was not 

liable under the Endorsement because Hope did not have significant contacts with Texas and was 

not hired or recruited in Texas. See Tex. Lab. Code § 406.071(a)(2), (b). Concerning this 

ground, HBI and Hartford refer this Court to our analysis in the prior appeal that addressed 

whether Hope was hired or recruited in Texas and state that “it is not necessary for this Court to 

address Texas Mutual’s arguments concerning recruitment” because “the dispositive issue in this
9

case centers on the principal location of Hope’s employment and not where he was hired or 

recruited.” However, section 406.071(a)(2) provides the alternatives of an employee’s 

significant contacts with Texas or his principal location of employment. Thus, it was Texas 

Mutual’s burden to establish that neither alternative applied to conclusively establish that it was 

entitled to summary judgment. See id. § 406.071(a)(2); Tex. R. Civ. P. 166a(c); Tarr, 

556 S.W.3d at 278. After remand, Texas Mutual’s subsequent motion for summary judgment

raised additional grounds but was supported by the same evidence concerning HBI’s hiring and 

recruitment of Hope that we addressed in the prior appeal. Following our analysis of this 

evidence in our prior opinion, we conclude that Texas Mutual established as a matter of law that 

Hope was not hired or recruited in Texas. See Hofer Builders, 2019 Tex. App. LEXIS 5562, at 

*19–32.

Principal Location of Employment

Texas Mutual further asserted in its motion for summary judgment that it was not 

liable under the Endorsement because Hope’s employment was not principally located in Texas. 

See Tex. Lab. Code §§ 406.071(a)(2), .072. HBI and Hartford’s motion for summary judgment 

joined issue on this ground. The remaining question in this appeal then is whether the trial court 

erred in its summary judgment rulings because Texas Mutual conclusively established that 

Hope’s employment was not principally located in Texas. Texas Mutual relies on the undisputed 

evidence that (i) HBI conducts its construction business in many states; (ii) after being hired by 

HBI in November 2014, Hope traveled directly from his Florida residence to Louisiana and 

began working for HBI at the Louisiana worksite; (iii) Hope did not travel to HBI’s Texas office 
10

during the hiring process or after he started working for HBI in November 2014; and (iv) Hope

exclusively worked at the Louisiana worksite until he was injured in December 2014.

As support for their assertion that Hope’s employment was principally located in 

Texas, HBI and Hartford rely on the evidence of Hope’s prior assignments in Texas when he was 

employed with related companies; HBI’s plans for Hope’s assignments after the Louisiana 

project, which included working on projects in Texas as he had done with the related companies;

and the location of HBI’s only office in Texas. HBI and Hartford characterize the construction 

project at the Louisiana worksite and Hope’s assignment there as “temporary” and argue that 

(i) under section 406.072, “there has to be a single principal location (‘the principal location’), 

and it is limited to one of two options listed in the statute”; (ii) because subsection (2) of section 

406.072 does not apply, it follows that subsection (1) applies; and (iii) the principal location of 

Hope’s employment was HBI’s Texas office—HBI’s place of business “from which Hope 

worked.” Although he was not physically present at the Texas office, Hope communicated with 

people who were there to receive his assignments and to provide reports, and he received

payments from there.

For purposes of this appeal, we need not decide the principal location of Hope’s 

employment. The dispositive question is whether the evidence conclusively established that HBI

did or did not have “a place of business [in Texas] at or from which [Hope] regularly work[ed].” 

See Tex. Lab. Code § 406.072(1); see also Webster’s at 302 (defining “business” as “activity 

directed toward some end” and “commercial or mercantile activity customarily engaged in as a

means of livelihood”), 1727 (defining “place” as “physical environment: space” and “physical 
11

surroundings”).

4 Our determination of this question “focuses on the employee’s location once he 

or she has begun working (after employment).”5 Hofer Builders, 2019 Tex. App. LEXIS 5562, 

at *24.

Because the evidence established that Hope was located in Louisiana during the 

entirety of his employment, we apply the plain meaning of the phrase “place of business at or 

from which the employee regularly works” to conclude that Texas Mutual established as a matter 

of law that Hope’s employment was not principally located in Texas. See Tex. Lab. Code 

§ 406.072(1); Scott, 309 S.W.3d at 930. The evidence was undisputed that after Hope was hired

in November 2014, he was never physically at HBI’s Texas office but worked exclusively “at”

the Louisiana worksite until he was injured. See Webster’s at 136 (defining “at” as “function

word to indicate presence in, on, or near: as (1) presence or occurrence in a particular place”). 

HBI and Hartford focus on the phrase “from which” in the statute and define “from” as “out of”

to support their position that Hope worked “from” their Texas office. See Black’s Law 

Dictionary 668 (6th ed. 1990).6 But, applying the plain meaning of the words in context, a place 

4 We observe that the plain meaning of “place of business” encompasses more than an 

employer’s office and could include a location where an employer is engaged in commercial 

activity. See TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011) (“We 

presume that the Legislature chooses a statute’s language with care, including each word chosen 

for a purpose, while purposefully omitting words not chosen.”). Had the Legislature intended for 

the principal location inquiry to be limited to offices, it could have easily said so.

5 Focusing on the employee’s location conforms with the Texas Workers Compensation 

Act’s purpose to provide benefits for work-related injuries that, by definition, occur where the 

employee is located. See In re Poly-America, L.P., 262 S.W.3d 337, 349–50 (Tex. 2008) (“The 

Texas Workers Compensation Act was enacted to protect Texas workers and employees.”).

6 HBI and Hartford rely on the definition from the sixth edition of Black’s Law 

Dictionary that defines “from” as follows:
12

of business “from which” an employee works still would require the employee’s physical 

presence at the place of business at some point. See Webster’s at 913 (defining “from” as 

“function word to indicate a starting point: as (1) a point or place where an actual physical 

movement . . . has its beginning”); see also Murphy, 518 S.W.3d at 418.

Thus, the evidence established that HBI did not have a place of business in Texas 

“at or from which” Hope regularly worked. See Tex. Lab. Code § 406.072(1). To hold

otherwise would require us to ignore the statutory language and the intent of our workers’

compensation laws. See Murphy, 518 S.W.3d at 418; see also Scott, 309 S.W.3d at 931 (“Courts 

must not give the words used by the Legislature an “exaggerated, forced, or constrained 

meaning.”). The “entire statute is intended for the benefit of Texas employees and because 

industry in Texas should not have the burden of providing insurance to employees of other

states.” Dossey, 402 S.W.2d at 155 (quoting Hale, 239 S.W.2d at 608).

Our interpretation of section 406.072(1) that focuses on the employee’s location is

consistent with related sections of the Labor Code. See Railroad Comm’n v. Texas Citizens for a 

Safe Future & Clean Water, 336 S.W.3d 619, 628 (Tex. 2011) (explaining that courts “generally 

avoid construing individual provisions of statute in isolation from the statute as a whole”); see 

As used as a function word, implies a starting point, whether it be of time, place, 

or condition; and meaning having a starting point of motion, noting the point of 

departure, origin, withdrawal, etc., as he travelled “from” New York to 

Chicago. . . . One meaning of “from” is “out of.” Word “from” or “after” an 

event or day does not have absolute and invariable meaning, but each should 

receive an inclusion or exclusion construction according to intention with which 

such word is used. . . . Words “from” and “to,” used in contract, may be given 

meaning to which reason and sense entitles them, under circumstances of case.

Black’s Law Dictionary 668 (6th ed. 1990) (citations omitted).
13

also Texas Dep’t of Ins. v. Jones, 498 S.W.3d, 610, 615 (Tex. 2016) (“We construe the Workers’ 

Compensation Act, like other statutes, by considering the plain meaning of the text, given the 

statute as a whole.”). As with section 406.072, the subject in section 406.071 is the “employee.”

See Tex. Lab. Code § 406.071(a) (entitling “employee who is injured while working in another 

jurisdiction or the employee’s legal beneficiary” to rights and remedies), (a)(2) (addressing

“employee” who has significant contacts with state), (b) (stating that “employee has significant

contacts if the employee was hired or recruited in this state and the employee” was injured within 

designated times). Similarly, the subject of section 406.073 is the employee’s location. It allows 

“[a]n employee whose work requires regular travel between the state and at least one other 

jurisdiction” to “agree in writing” with his or her employer on the employee’s “principal location 

of the employment.” See id. § 406.073(a); Celadon Trucking Servs., Inc. v. Martinez, 

320 S.W.3d 377, 383 (Tex. App.—El Paso 2010, pet. denied) (enforcing agreement between

employee and employer that employee’s employment is “principally localized in Indiana”).

We also observe that HBI and Hartford’s proposed interpretation would lead to 

illogical and unreasonable results and conflicts with other provisions in the standard form 

Endorsement. See Railroad Comm’n, 336 S.W.3d at 628; Scott, 309 S.W.3d at 930. Under their 

proposed interpretation, Texas Mutual’s policies issued to employers with offices only in Texas 

would cover the employers’ nationwide business. But the Endorsement expressly provides that 

“[e]mployees hired or recruited by you outside Texas to work in another state are specifically 

excluded from the terms and provisions of this policy” and that Texas Mutual is “not authorized 

to provide workers’ compensation insurance in any jurisdiction other than Texas.” Cf. Tex. Lab. 

Code § 406.053 (addressing “All States Coverage”); In re Poly-America, L.P., 262 S.W.3d 337, 

349–50 (Tex. 2008) (“The Texas Workers Compensation Act was enacted to protect Texas 
14

workers and employees.”); see also Texas Emps’ Ins. v. Miller, 370 S.W.2d 12, 14 (Tex. App.—

Texarkana 1963, writ ref’d n.r.e.) (stating that “extra-territorial provision of the Texas 

Workmen’s Compensation Act is mainly to protect Texas employees temporarily out of the State 

of Texas, whose employment takes them periodically out of the State”).

For these reasons, we conclude that the trial court erred in granting summary 

judgment in favor of HBI and Hartford and denying Texas Mutual’s motion for summary 

judgment. See Emmett, 459 S.W.3d at 583. Thus, we sustain Texas Mutual’s issue. 

CONCLUSION

Having sustained Texas Mutual’s issue, we reverse the trial court’s order and 

render judgment declaring that Texas Mutual is not liable to HBI or Hartford for the Louisiana 

workers’ compensation benefits paid to Hope.

__________________________________________

Melissa Goodwin, Justice

Before Justices Goodwin, Baker, and Smith

Reversed and Rendered

Filed: August 25, 2022