Texas Supreme Court

AUSTIN- Texas Supreme Court justices who immunized Entergy Gulf States against a Jefferson County personal injury suit are wondering now if they made a mistake.

The justices agreed April 4 to rehear the case of John Summers, who worked for International Maintenance Corporation at Entergy's Sabine Station power plant.

Last August, the court defined Entergy as a general contractor responsible for providing workers' compensation coverage to International Maintenance as subcontractor.

Workers' compensation policies protect policyholders from personal injury suits.

The case stirred more controversy after the decision than before it. Four groups and four individuals filed briefs as friends of the court, for and against a second hearing. The court has not set a date for a rehearing.

The case has consumed three years at the Supreme Court. Entergy appealed in April 2005, after the Ninth District appellate court in Beaumont ruled in favor of Summers.

International Maintenance provided maintenance and light construction to Entergy under a contract that recognized Entergy as "statutory employer."

Entergy agreed to cover International Maintenance for workers' compensation. Entergy obtained a policy and paid the premiums.
Summers suffered an injury, applied for benefits and received them.
Then he sued Entergy, alleging negligence.

Entergy moved for summary judgment, arguing that Texas workers' compensation law shielded it from the suit.

Jefferson County District Judge James Mehaffy granted summary judgment.

The Ninth District reversed Mehaffy, ruling that Entergy was not a general contractor.

"Entergy did not establish it had undertaken to perform work or services and then subcontracted part of that work to IMC, as a general contractor would have done," Justice Don Burgess wrote.

The Ninth District relied on Williams v. Brown & Root Inc., a decision holding that the owner of a workplace can't be a general contractor because it can't contract with itself.

The Supreme Court unanimously decided last August that the Ninth District shouldn't have relied on the Williams decision.

Justice Don Willett wrote, "…the Labor Code's definition of 'general contractor' does not prohibit a premises owner who 'undertakes to procure the performance of work or a service' from also being a general contractor."

He wrote, "In short, the governing Labor Code definitions of general contractor and subcontractor do not forbid a premises owner from also being a general contractor."

Entergy's ownership of the premises was immaterial, he wrote.
That decision now hangs in limbo, as the justices prepare for a second look.

Steven Barkley represents Summers. Christine Kibbie, Paul Scheurich, Jacqueline Stroh and Sharon Callaway represent Entergy.

Since December the justices have received "friend of the court" briefs from Texas AFL-CIO, Texas Civil Justice League, Texas Trial Lawyers Association, Texans for Lawsuit Reform, State Sen. Rodney Ellis, Steve Bresnen, Bradley Toben and Rob Looney.

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