Filed
`13 September 19 P3:38
`John Warren
`County Clerk
`Dallas County
`
`
`
`might have otherwise made against the SCC Defendants based on ordinary negligence theories
`
`of liability are barred by statute.
`
`II.
`
`SUMMARY JUDGMENT EVIDENCE
`
`SCC Defendants offer the following evidence, the authenticity of which is undisputed, for
`
`all purposes:
`
`Exhibit “I”
`
`Excerpts of the Deposition of Brian Devine;
`
`Exhibit “J”
`
`Excerpts of the Deposition of Guadalupe Montana;
`
`SCC Defendants further rely upon the pleadings, motions and accompanying
`
`exhibits on file with the Court. A copy of the Plaintiffs Fourth Amended Petition is
`
`attached hereto as Exhibit “K” for the Court’s convenience.
`
`III.
`
`SUMMARY JUDGMENT FACTS
`
`Plaintiffs assert that Mr. Suarez performed services under the direction of the SCC
`
`Defendants at a QSDI warehouse facility (“warehouse”). Exhibit “H” 1110; Exhibit “K” 1111-12.
`
`While performing these services, Mr. Suarez was fatally injured. Exhibit “H” 1110-12; Exhibit
`
`“K” fi[l7. Plaintiffs seek to recover from the SCC Defendants under theories of negligence and
`
`gross negligence. EXHIBIT “H” 1114-18; EXHIBIT “K” 1122-26.
`
`In 2004, Saddle Creek took over the operations of the warehouse and employed Dale
`
`Case. Exhibit “A” p.12, 1.23 —' p.13, 1.10. On the day of the incident, Dale Case was Lead of
`
`Sanitation for Saddle Creek at the warehouse. Exhibit “A” p.38, 1.12-21; p.128, 1.15-24. Co-
`
`Defendant Staffing Solutions Southwest,
`
`Inc. d/b/a Prologistix (“Prologistix”)
`
`supplied
`
`temporary workers to SCC to work in the Sanitation Department under Dale Case’s supervision.
`
`Exhibit “A” p.39, 1.5-11; Exhibit “B”. Mr. Suarez was one of those workers and Dale Case
`
`
`
`instructed Mr. Suarez to clean an area of the warehouse. Exhibit “A” p.106, 1.3-18; p.132, 1.10-
`
`Prologistix and Saddle Creek entered into a Staffing Service Agreement to define their
`
`relationship. Exhibit “I” p.4, 1.13 — p.5, 1.25; p.29, 1.10-16. Pursuant to the Staffing Service
`
`Agreement, Saddle Creek: (1) controlled the hours that Pr0logistix’s temporary associates would
`
`be present at the warehouse;
`
`(2) provided site specific training to Prologistix’s temporary
`
`associates; (3) provided work specific instructions to Pro1ogistix’s temporary associates; (4)
`
`accepted responsibility for providing a safe place to work to Pro1ogistix’s temporary associates;
`
`(5) supervised of Prologistix’s temporary associates; and (6) provided equipment to Prologistix’s
`
`temporary associates for them to complete their work. Exhibit “I” p.65, 1.23 — p.66, 1.12; p.67,
`
`1.25 — p.68, 1.10; p.69, 1.22 — p.70, 1.24; p.71, 1.9 — p.80, 1.2. At the time of the subject incident,
`
`Hipolito Suarez was a temporary associate of Prologistix assigned to Saddle Creek under the
`
`Staffing Service Agreement. Exhibit “I” p.59, 1.16-22. With respect to Hipolito Suarez, it was
`
`Saddle Creek’s responsibility to: (1) provide safety and equipment training; (2) setting his start
`
`time at the warehouse; (3) assign him work tasks; (3) supervise, control and direct the details of
`
`his work; and (4) provide him the equipment to perform his tasks. Exhibit “I” p.75, 1.5 — p.78,
`
`Both SCC and Prologistix subscribed to workers compensation insurance. Exhibits “C”,
`
`“D” and “E”. Plaintiffs received benefits and funeral expenses from Pro1ogistix’s workers
`
`compensation policy. Exhibits “F”; “G”; “I” p.60, 1.7-15; and “J” p.73, 1.6-14.
`
`TRADITIONAL SUMMARY JUDGMENT STANDARD
`
`IV.
`
`To be entitled to a traditional summary judgment, a movant must establish that there are
`
`no genuine issues of fact, and that it is entitled to judgment as a matter of law. Tex. R. Civ. P.
`
`
`
`166a; Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); Lear Siegler, Inc. v.
`
`Perez, 819 S.W.2d 470, 471 (Tex. 1991). Summary judgment should be granted if the pleadings,
`
`discovery responses, testimony, admissions and affidavits show there is no genuine issue as to
`
`any material fact and the moving party is entitled to judgment as a matter of law. TEX. R. CIV. P.
`
`l66a(c); Rodriguez v. Naylor Indus, Inc., 763 S.W.2d 411, 412 (Tex. 1989). A defendant
`
`discharges this burden by conclusively establishing each essential element of an affirmative
`
`defense, thereby rebutting the plaintiffs cause of action. Jones v. Blame, 196 S.W.3d 440, 445
`
`(Tex. App. — Dallas 2006, pet. denied) (citing City of Houston v. Clear Creek Basin Autlt, 589
`
`S.W.2d 671, 678 (Tex. 1979)); Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972).
`
`ARGUMENT AND AUTHORITIES
`
`V.
`
`Plaintiffs are barred from asserting ordinary negligence claims against the SCC
`Defendants because Saddle Creek Corporation subscribed to workers compensation
`insurance and is a co-employer of Mr. Suarez for purposes of the exclusive remedy
`provisions of the Texas Workers Compensation Act
`
`An employer who pleads and proves that
`
`it subscribes to workers’ compensation
`
`insurance is immune from liability for common-law negligence. TEX. LAB. CODE §408.00l(a).
`
`§408.001 (a) provides:
`
`Recovery of workers’ compensation benefits is the exclusive remedy of an
`employee covered by workers’ compensation insurance coverage or a legal
`beneficiary against the employer or an agent or employee of the employer for the
`death of or a work-related injury sustained by the employee.
`
`(our emphasis added); also Western Steel Co. v. Altenburg, 206 S.W.3d 121, 123 (Tex. 2006);
`
`Mosqueda v. G & H Diversified Mfg, Inc. 223 S.W.3d 571, 582 (Tex. App.—Houston [14th
`
`Dist.] 2007, pet. denied). A deceased employee’s beneficiaries’ exclusive remedy is recovery of
`
`workers’ compensation benefits under the Workers’ Compensation Act; they may obtain nothing
`
`further through a court of law.
`
`TEX. LAB. CODE §408.001(a). The only exception to the
`
`
`
`exclusive remedy provision is when an employee’s death “was caused by an intentional act or
`
`omission of the employer or by the employer’s gross negligence.” TEX. LAB. CODE §408.001(b).
`
`A defendant may rely upon the exclusive remedy provision by establishing that it is a
`
`subscriber to workers’ compensation insurance, the plaintiff was an employee, and the plaintiff
`
`suffered a work-related injury. Port Elevator-Brownsville, LL. C. v. Casados, 358 S.W.3d 238,
`
`240 (Tex. 2012).
`
`B.
`
`SCC was an employer of the decedent under Texas law
`
`The Texas Supreme Court unambiguously held that an employee of a temporary staffing
`
`agency sent to a client company which directs the details of his work is an employee of both
`
`companies. Wing/foot Enters. v. Alvarado, 111 S.W.3d 134, 143 (Tex. 2003). Subsequent to
`
`Wingfoot, the Supreme Court revisited the issue of a client company, such as SCC, attempting to
`
`rely upon the exclusive remedy provision of the Texas Labor Code. Garza v. Exel Logistics,
`
`Inc., 161 S.W.3d 473, 475-76 (Tex. 2005).
`
`In Garza, the Texas Supreme Court looked to the definitions found in the Texas Labor
`
`Code and held traditional indicia, such as the exercise of actual control over the details of the
`
`work that gave rise to injury, may determine if a client company is an employer for the purposes
`
`of the exclusive remedy provision. Id at 477. The client company’s employee directed Mr. Garza
`
`to turn off a machine, in order to work inside it, which resulted in his injury. Id. The Texas
`
`Supreme Court held that this direction was enough for the client company to be considered an
`
`employer of Mr. Garza and to rely upon the exclusive remedy provision of the Texas Workers
`
`Compensation Act. Id.
`
`With respect to Hipolito Suarez,
`
`it was Saddle Creek’s responsibility to: (1) provide
`
`safety and equipment training; (2) setting his start time at the warehouse; (3) assign him work
`
`
`
`tasks; (3) supervise, control and direct the details of his work; and (4) provide him the equipment
`
`to perform his tasks. Exhibit “I” p.75, 1.5 — p.78, 1.10. Dale Case, an employee of SCC, directed
`
`Mr. Suarez to perform the task that he was doing when the subject incident occurred. Exhibit
`
`“A” p.106, 1.3-18; p.132, 1.10-16. Accordingly, Defendant Saddle Creek controlled Mr. Suarez’s
`
`task and is an employer of his for purposes of §408.001 of the Texas Labor Code.
`
`C.
`
`It is undisputed that Defendants Saddle Creek and Prologistix subscribed to
`workers’ compensation insurance and that Plaintiffs have received benefits
`from Prologistix’s policy
`
`Saddle Creek Corporation subscribed to a workers’ compensation insurance policy that
`
`covered its employees on July 09, 2012, the date of the subject incident. Exhibits “D” and “E”.
`
`Prologistix also subscribed to a workers compensation policy. Exhibit “C”. Plaintiffs have
`
`received medical and burial and death benefits under Prologistix’s policy. Exhibits “F” and “G”.
`
`D.
`
`Mr. Suarez suffered a work-related injury to which the exclusive remedy
`provision of Texas Labor Code §408. 00] applies
`
`The Texas Workers’ Compensation Act’s exclusive remedy applies to an employee’s
`
`death or injury that is “work.-related.” TEX. LAB. CODE § 408.00l(a). The term “work-related” is
`
`not defined by the Texas Workers’ Compensation Act. Payne v. Galen Hosp. Corp., 28 S.W.3d
`
`15, 19 (Tex. 2000). Neither has the Texas Supreme Court specifically construed the term. Id.
`
`But, Texas courts use the term interchangeably with “course and scope of employment.” Id;
`
`citing Alberts0n’s Inc. v. Sinclair, 984 S.W.2d 958, 960 (Tex. 1999); Lewis v. Lewis, 944 S.W.2d
`
`630 (Tex. 1997); Hoffman v. Trinity Indus, Inc., 979 S.W.2d 88, 89 (Tex. App. — Beaumont
`
`1998, pet. dism’d by agr.); Dickson v. Silva, 880 S.W.2d 785, 788 (Tex. App. — Houston [lst
`
`Dist.] 1993, writ denied). The Texas Workers’ Compensation Act defines “course and scope of
`
`employment” as “an activity of any kind or character that has to do witli and originates in the
`
`work, business, trade, or profession of the employer and that is performed by the employee while
`
`
`
`engaged in or about the furtherance of the affairs or business of the employer.” TEX. LAB. CODE
`
`§401.011(12).
`
`Defendant Saddle Creek has managed the operations at the warehouse since 2004.
`
`Exhibit “A” p.12, 1.23 - p.13, 1.10; 17, 1.6-9. At the time of the subject incident, Mr. Suarez was a
`
`temporary associate of Prologistix assigned to Saddle Creek under the’ Staffing Service
`
`Agreement. Exhibit “I” p.59, 1.16-22. In relation to the operations at the warehouse, Saddle
`
`Creek employed Dale Case as the lead of sanitation. Exhibit “A” p.38, 1.12-21; p.128, 1.15-24.
`
`Part of the sanitation department’s responsibility is to clean the warehouse according to a
`
`schedule. Exhibit “A” p.128, 1.15 - p.129, 1.20. As sanitation lead for Saddle Creek, Dale Case
`
`instructed Mr. Suarez to clean an area of the warehouse in furtherance of this schedule. Exhibit
`
`“A” p.106, 1.3-18; p.128, 1.15 - p.129, 1.20; p.132, 1.10-16. Plaintiffs’ admit in their live pleading
`
`that Mr. Suarez was performing services for the Defendants and/or at Defendants’ instruction at
`
`the warehouse. Exhibit “H” 1110; Exhibit “K” 1111-12. This accident occurred within the scope of
`
`Mr. Suarez’s co-employment with Defendant Saddle Creek for the purposes of the Texas
`
`Workers Compensation Act. Accordingly, Mr. Suarez suffered a work-related injury.
`
`The Texas Supreme Court’s recent decision in a case based on virtually identical facts-
`
`supports the SCC Defendants’ position in this matter. Port Elevator-Brownsville, LLC. v.
`
`Casados, 358 S.W.3d 238 (Tex. 2012). Like this case, the plaintiffs in Port Elevator were the
`
`parents of a temporary employee who suffered a “fatal, work-related injury while working for
`
`two employers that both had workers’ compensation coverage.” Id at 239. The Texas Supreme
`
`Court held that the exclusive remedy bar precluded a tort claim against either defendant as both
`
`were employers for the purposes of Texas’ workers’ compensation scheme, Justice Guzman
`
`emphasized that the Texas Workers’ Compensation Act (“TWCA”) “encourages employers to
`
`
`
`subscribe” and that the Court “construe[s] the TWCA liberally in favor of coverage as a means
`
`of affording employees the protections the Legislature created.” Id at 241.
`
`Rafael Casados, the decedent, worked for Staff Force, Inc., a temporary staffing company
`
`who provided him to Port-Elevator-Brownsville, L.L.C. (“Port Elevator”) to perform general
`
`labor at a grain storage facility. Id at 240. Rafael Casados suffered a fatal, work-related, injury
`
`while on the job. Id. Staff Force, Inc. and Port Elevator both carried workers’ compensation
`
`insurance. Id. Mr. Casados’ parents sued Port Elevator under theories of negligence and gross
`
`negligence. Id at 239. Port Elevator asserted that workers’ compensation insurance was the
`
`plaintiffs’ exclusive remedy. Id at 240. The Texas Supreme Court said: “Because we conclude
`
`that Port Elevator conclusively established it subscribed to workers’ compensation insurance,
`
`that Mr. Casados was an employee, and that he suffered a work-related injury, we reverse the
`
`court of appeals and render judgment in favor of Port Elevator.” Id.
`
`In reaching its decision, the Court noted that the parties agreed that Mr. Casados was an
`
`employee of both Staff Force and Port Elevator and that Port Elevator was a workers’
`
`compensation subscriber at the time of the incident. Id at 242-43. The parties’ disagreement
`
`focused on whether or not Mr. Casados was covered by Port Elevator’s workers’ compensation
`
`policy. Id at 243. The Court noted that Mr. Casados’ parents had the right to pursue benefits
`
`from either policy and did receive benefits from Staff Force Inc.’s workers’ compensation
`
`policy. Id at 244. After its analysis, the Court determined that the TWCA—provided remedy
`
`against Port Elevator’s workers’ compensation insurance policy was the exclusive remedy
`
`Casados’ injury and the parent’s negligence claims against Port Elevator were barred. Id.
`
`The Texas Supreme Court has since relied upon its holding in Port Elevator to reach a
`
`similar conclusion. City ofBellaire v. Johnson, 56 Tex. Sup. J. 633 (Tex. 2013). In Johnson, the
`
`
`
`Court noted that its ruling in Port Elevator “. . .held that, with certain exceptions not relevant in
`
`that case, or this one, an employee cannot avoid this statutory bar by arguing that he was not
`
`covered under the specific terms of his employer’s workers’ compensation insurance policy.” Id.
`
`As in Port Elevator, Elbert Johnson was an employee of a staffing services company that
`
`provided workers to a municipality. Id. Johnson lost his arm while performing sanitation services
`
`for the municipality. Id. Johnson sued the municipality asserting that he was not covered by the
`
`municipality’s workers’ compensation insurance because his pay came from the staffing
`
`company and not the municipality. Id. The Texas Supreme Court held that: “As a matter of law,
`
`the City provided Johnson workers’ compensation coverage, and therefore his exclusive remedy
`
`was the compensation benefits to which he was entitled.” Id.
`
`Based on the facts of this case and the analogous facts of Port Elevator and Johnson,
`
`Plaintiffs’ claims arising out of Mr. Suarez’s death are subject to the workers’ compensation bar
`
`to recovery. Accordingly, this Court must grant summary judgment as to Plaintiffs’ negligence
`
`claims.
`
`E.
`
`Dale Case is entitled to the exclusive remedy defense as an employee ofSCC
`
`Plaintiffs have sued Dale Case individually, raising claims that are based solely on his
`
`acts as SCC’s employee. Exhibit “H” 1110-16. Dale Case was an employee of SCC at the time of
`
`the subject incident. Exhibit “A” p.12, 1.23 — p.13, 1.10; p.38, 1.12-21; p.128, 1.15-24. §408.00l(a)
`
`provides that:
`
`Recovery of workers’ compensation benefits is the exclusive remedy of an
`employee covered by workers’ compensation insurance coverage or a legal
`beneficiary against the employer or an agent or employee of the employer for the
`death of or a work-related injury sustained by the employee. (our emphasis added)
`
`Dale Case is entitled to rely upon the exclusive remedy provision and Plaintiffs’ negligence
`
`claims against him are likewise barred.
`
`
`
`VI.
`
`CONCLUSION
`
`Mr. Suarez was an employee of SCC for purposes of the Texas Workers’ Compensation
`
`Act, SCC subscribed to workers’ compensation insurance at the time of the incident, and Mr.
`
`Suarez’s injury was work—re1ated. Accordingly, Plaintiffs’ negligence claims as to Dale Case and
`
`SCC based on Mr. Suarez’s death are barred by the exclusive remedy provisions of the TEXAS
`
`LABOR CODE, and this Court should grant summary judgment as to such claims.
`
`PRAYER
`
`WHEREFORE, Defendants Dale Case and Saddle Creek Corporation pray that this Court
`
`grant partial summary judgment as to all of Plaintiffs’ negligence claims against Defendants, and
`
`for general relief.
`
`Respectfully submitted,
`
`MACDONALD DEVIN, P.C.
`
`4’ i A./A/I
`
`CIiAYTON E. DEVIN
`j State Bar No. 05787700
`cdevin@,macdonalddevin.com
`JOSEPH F. HENDERSON
`
`State Bar No. 24036751
`
`jhendersonga/gmacdonalddevin.com
`
`3 800 Renaissance Tower
`
`1201 Elm Street
`
`Dallas, Texas 75270-2014
`214.744.3300
`
`214.747.0942 (Facsimile)
`
`ATTORNEYS FOR DEFENDANTS
`
`SADDLE CREEK CORPORATION
`
`AND DALE CASE
`
`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that a true and correct copy of the foregoing document has been
`
`forwarded to all counsel of record in accordance with the Texas Rules of Civil Procedure on this
`
`ll
`
`day of September, 2013.
`
`
`
`
`
`Exhibit “I”
`
`
`
`CAUSE NO. CC-12-06650-A
`
`IN THE COUNTY COURT
`
`AT LAW NO.
`
`l
`
`GUADALUPE MONTANA,
`Individually, and as the
`Administratrix of the Estate
`
`of HIPOLITO SUAREZ, MARIA
`
`SUAREZ, TOMASA MEDINA, GIULIANA
`
`LACAYO, and HIPOLITO SUAREZ,
`JR.
`
`Plaintiffs,
`
`VS.
`
`STAFFING SOLUTIONS SOUTHWEST,
`INC. D/B/A PROLOGISTIX, SADDLE
`CREEK CORPORATION, QUAKER
`
`SALES & DISTRIBUTION,
`DALE CASE
`
`INC. And
`
`\,\’\,\,\,\/\_,\,\,\/\/\/\;\/\/\J\/\_/¢
`
`Defendants.
`
`DALLAS COUNTY, TEXAS
`
`*~k~k*~k:‘<***~k~k*~k~k*3?**~k*****~k~)<~k~k71¢*~k*~k~)<~k**~)<~k**~k********~Jr~k~k>\—7'r**
`
`ORAL AND VIDEOTAPED DEPOSITION OF
`BRIAN DEVINE
`
`SEPTEMBER 9, 2013
`‘k***~k‘k**‘k‘k‘k**‘k‘k***‘k7?‘Jr*******‘k‘k*‘k‘k**‘k‘k**‘k‘k***‘k‘k*‘k*‘k**k****‘k
`
`ORAL AND VIDEOTAPED DEPOSITION OF BRIAN
`
`DEVINE, produced as a witness at the instance of the
`
`Plaintiffs, and duly sworn, was taken in the above—styled
`
`and numbered cause on the 9th day of September, 20l3,
`
`from 12:59 p.m.
`
`to 2:59 p.m., before STEPHANIE M. HUNN,
`
`CSR in and for the State of Texas, reported by machine
`
`shorthand, at the offices of WATSON, CARAWAY, MIDKIFF &
`
`LUNINGHAM, L.L.P., 309 West 7th Street, 1600 Oil
`
`& Gas
`
`Building, Fort Worth, Texas, 76lO2, pursuant to the Texas
`
`Rules of Civil Procedure and the provisions stated on the
`
`
`
`P R O C E E D I N G S
`
`(Exhibit Nos. 94-95 marked.)
`
`VIDEOGRAPHER: We're on the video record.
`
`The time is 12:59.
`
`BRIAN DEVINE,
`
`having been first duly sworn,
`
`testified as follows:
`
`BY MR. SHEEHAN:
`
`EXAMINATION
`
`Q.
`
`Okay. Mr. Devine, please state your name.
`
`A. Brian Devine.
`
`Q.
`
`And where do you live, sir?
`
`A. Chapin, South Carolina.
`
`Q. And you're here today to give testimony
`
`individually and as a corporate representative for
`
`ProLogistix;
`
`is that right?
`
`A. Yes.
`
`Q.
`
`I'm handing you what I've marked as Exhibit 94
`
`and Exhibit 95.
`
`It's your deposition notices for today.
`
`Take a look at Exhibit 95 and let me know if you've seen
`
`that before.
`
`A. Yes.
`
`Q.
`
`It's my understanding that you're here to
`
`testify to topics one,
`
`two, four, five and eight which is
`
`on Exhibit A to Exhibit 95;
`
`is that right?
`
`
`
`
`
`
`if you'd please initial next
`
`sir,
`
`Can you repeat those?
`
`
`
`Q.
`
`two,
`
`four,
`
`five and eight. Okay.
`
`And you can -— you can keep that today.
`
`I will need my
`
` If you would,
`Q.
`to those topics so that we have a clean record as to what
` we're going to be talking about here today.
` A.
`
`Sure.
`
`One,
`
`
`
`though.
`
`
`
`pen back,
`
`Thank you.
`
` five and
`
`four,
`Is —— are topics one,
`two,
`
` eight the sole topics that you're here to talk about
`today as far as the —— the topics listed on Exhibit A?
`A. Yes.
`
`
`
`
`Q. All right. What's your position with the
` company?
` A. Division vice president.
` Q. And is that split up by territory? When you say
`
`
`is that geographic in nature?
`
`division,
`
`A. No, it's the ProLogistix division.
`
`Q
`
`Who do you report to?
`
`A.
`
`Tom Bickes.
`
`Q
`
`Who is that?
`
`A He's the president and CEO.
`
`Q.
`
`How would you describe your job duties with the
`
` company today?
`
`
`A.
`I'm responsible for the ProLogistix division
` around the country.
`
`
`
`Q. Have you taken any steps to determine whether or
`
`not a copy of the Agreement and Waiver that either was or
`
`should have been signed by Mr. Suarez was retained by
`
`29
`
`ProLogistix?
`
`MR. DEVIN: Objection,
`
`form.
`
`A.
`
`I have not.
`
`Q.
`
`(BY MR. SHEEHAN) Have you seen a copy of the
`
`Agreement and Waiver signed by Mr. Suarez?
`
`A. Not that I recall.
`
`Q.
`
`Now, Exhibit 37, do you consider it to be an
`
`important document?
`
`A. Yes.
`
`Q.
`
`Is it the core document that,
`
`in your opinion,
`
`defines the relationship between ProLogistix and the
`
`client, Saddle Creek?
`
`A. Yes.
`
`Q.
`
`If there is a dispute between ProLogistix and
`
`Saddle Creek,
`
`this is the first document that you would
`
`go to;
`
`is that right?
`
`A. Yes.
`
`Q. Okay. And —— and ProLogistix expects Saddle
`
`Creek to adhere to its obligations under Exhibit 37;
`
`is
`
`that right?
`
`A. Yes.
`
`
`
`
`
`
`MR. SHEEHAN: Okay.
`I'm going to pass the
`
`
`
`
` EXAMINATION
`
`
` BY MR. DEVIN:
`
`
`Q. Mr. Devine, my name is Clayton Devin.
`
`I r
`
`epresent Saddle Creek Corporation.
`
` A. Right.
` Q. Have we ever met or spoken with each other prior
` to your showing up for the deposition today?
` A. No.
`
`
`Q.
`I'd like for you to get Exhibit 37 in front of
`
`
`
`
`That's the Staffing Service Agreement.
`
`Yes.
`
`Sure.
`
`
`
`To your knowledge, Mr. Devine, was Hipolito
`
`
`
`Creek under this contract?
` A. Yes.
`
`Suarez a temporary associate who was assigned to Saddle
`
`
`
`Prairie facility on the day of this accident?
`
`
`Q. And was he assigned to the Saddle Creek Grand
`
` A.
`he was.
`Yes,
`
`
`
`Q.
`
`
`with me, if you could, please.
`
`I'd like for you to go through the agreement
`
`
`
`
` A. Yes.
` Q.
`It's on the first page there. And just for
`in this document, does the word provider
` refer to ProLogistix?
` A. Yes.
` is it correct
`that one of the things ProLogistix agreed to do was to
` handle workers‘
`Y
` associates?
` A. That's correct, yes.
`
`
`Q. And,
`
`accident and the medical bills that resulted from that,
`
` A. Yes.
`
`
`in fact, with regard to Mr.
`
`Suarez's
`
`has ProLogistiX handled that workers‘ compensation claim?
`
`
` that's
`Q.
`If you'd look at Paragraph 4.c., please,
` entitled Preemployment Screening.
`
`I'd like for you to
`
`
`
`please go through that section of the document and tell
`
`us the things that ProLogistix agreed to do in terms of a
` preemployment screening for temporary associates such as
` Mr. Suarez.
`
`
`
`As it relates to this document,
`
`
`
`A.
`
`Okay.
`
`ProLogistix will recruit, will interview applicants, will
` test them to make sure that they meet certain
`
`I'd like to start with Section 4.b. as in boy.
`
`clarification,
`
`
`Q.
`
`Looking there at Section 4.b.,
`
`com ensation claims involvin tem orar
`9
`P
`
`
`
`
` 65
`
`
`A.
`It's to make sure that we complete each of these
` documents for each employee.
`
`
`
`Q.
`If you'd look down at the next section,
` ., still on Page 3.
`Uh—huh. A.
`
`
`
`Item
`
`
`
`Q. And I wanted to direct your attention to the
` reference there to Saddle Creek's time and attendance
`Do you see that?
`system.
`
`A. Yes.
`
`
`
`
`Q. What does that reference?
`
`The time and attendance is the time clock that
`
`Q.
`
`As part of the agreement bctwcon ProLogistix and
`
`utilized for purposes of calculating the number of hours
`
`
`
`
`
`A.
` the employees use to punch in and punch out so that we
` keep track of their time, work on an assignment.
`
` Saddle Creek, did ProLogistix agree that Saddle Creek's
` time clock or time and attendance system would be
`
`
`
`
` A. Yes.
`
`
`
`Q. And that in turn would be used for billing
`
`purposes?
`
`
`
` A. Correct.
`
`
`Q. At the Grand Prairie facility as between
`
`
`
`
`
`ProLogistix and Saddle Creek, who controlled the hours of
`
`worked by the temporary associates?
`
`
`
`MR. SHEEHAN: Objection,
`
`form.
`
`Saddle Creek would —— would tell us when to have
`
`
`
` A.
` the associates arrive in the morning and —— or throughout
` the day and when the shift was complete.
`
` Q.
`DEVIN) (BY MR.
`And since it drew an objection,
`
`
`
`At Saddle Creek's Grand Prairie facility, as
`
`I'm going to ask a little bit different question.
`
`between Saddle Creek and ProLogistix, which one of the
`
`
` companies established the hours that the temporary
`associates would be present and working at the facility?
` MR. SHEEHAN: Objection,
`form.
`
`
` A.
`
`Saddle Creek.
`
`
`
`
`Still looking at item -— or
`
` Q.
`
`(BY MR. DEVIN)
`there's a bullet point
`Paragraph 4.f. of the contract,
` there that says, Workers‘ compensation reportable
` incidents, and up above that it refers to a quarterly
` report. Are you familiar with that?
`
`
`
`
` A. Yes.
`
` Q. What is that,
`
` A.
` business review and that is where we —— our local team
` here in Dallas, Fort Worth would meet with the local
`
`please?
`
`It's —— we refer to it as QBR or quarterly
`
`
`
`
`Saddle Creek management
`
`team and review some of the most
`
`important components of the partnership, how much money
`
`
`
`
`
`
`
`
`the turnover, you that —— that we placed on assignment,
` know, how many of those employees left the assignment and
`
`any expense we had associated with workers’
`accidents.
`
`comp or
`
` Q. What makes a workers’ compensation incident
` reportable?
`
`
`
`A.
`I don't know the exact criteria of that.
`
`
`
`The OSHA guidelines that are published.
`
` and the Saddle Creek people getting together each quarter
`
`
`to discuss, among other things,
`the reportable workers‘
` compensation incidents?
` A.
`
`To identify the root cause of any injury so they
` can be eliminated in the future.
`
`
`
`Q. Where would I
`look to find out what makes a
`
`
`workers‘ compensation incident reportable?
`
`A.
`
`
`
`Q. What is the purpose of the ProLogistix people
`
`
`
`Q.
`
`If you would turn to Page 4 of the contract,
`
`
`
`
`
`A. Yes.
`
`please.
`
`
`Q.
`
`You were asked some questions earlier about
`
`
`
`Paragraph 5.h.,
`
`I believe --
`
` A. Yes.
`
`
`
`
`Q.
`
`—— of the -- of the contract.
`
` A. Right.
`
`
`
`
` responsible for providing the site specific training to
`
`temporary associates?
`
` A.
`Saddle Creek.
`
` Q. And stated a little bit differently, as between
` ProLogistix and Saddle Creek, who was responsible for
` providing site specific safety training to temporary
`
` associates?
`
`
`
` A.
`Saddle Creek.
`
`
`Q. And, again, would that include Hipolito Suarez?
` A. Yes.
`
`
`Q. Would you characterize the safety training
` provided to Pro -— provided by ProLogistix to temporary
` associates such as Hipolito Suarez as being general
`
`safety training?
`
` A. Yes, very general, generic, yes.
`
`
`
`
`
`Q. And, again, as between ProLogistix and Suarez as
` it relates to the Grand Prairie facility, who was
`
`Suarez pertaining to his work at the Grand Prairie
` facility?
` A.
`Saddle Creek.
`
`
`
`
`Q. Did ProLogistix provide forklift operations
` training to all temporary associates assigned to the
` Grand Prairie facility or only those individuals who were
`
`
`
`responsible for providing safety training to Hipolito
`
`
`
`
`
`
`A. Only those individuals who were going to operate
`
`69
`
`
`forklifts.
`
`If you would turn to Page 5, please.
`
`
`
`
`Paragraph 5.c., it refers to a safety video and test and
`
` Look at Q.
` Paragraph c. —— 5.c.
`It's entitled Training.
`A. Yes.
` in that first sentence of Q. Now, again,
`
`
`
`Is that the safety video and the
`
`testing that you have previously described here today
`that was the general safety training?
` form.
` A.
`
`Saddle Creek,
`I
`thought, had their own forklift
`
`certification Video that they wanted employees to watch.
`
`the general
`I was referring to the safety training,
`
`says that the provider, ProLogistix, was required to
`
`administer those.
`
`MR. WATSON: Objection,
`
`safety training that we ask each —— every single
`
`applicant to go through.
`
`
`
` And that's whether that
`(BY MR. DEVIN)
`Q.
` applicant is going to a Saddle Creek location or some
`
`other customer's?
`
`
`
`A. That's correct.
`
`
`
`The next sentence of that section says, Saddle
`Q.
` Creek will present on—site equipment and work area
`
`
`specific instruction to newly hired temporary associates
`
`
`
`70
`
`previous paragraph under temp duties, close parentheses.
`
`Now, again, as between ProLogistix and Saddle Creek, who
`
`was responsible for providing work area specific
`
`instructions to the temporary associates?
`
`A.
`
`Saddle Creek.
`
`Q. Going to Paragraph 5.d. of the contract,
`
`the
`
`first sentence sets out several requirements.
`
`I'm going
`
`to try to break them down a little bit.
`
`At
`
`the Grand Prairie facility, as between
`
`ProLogistix and Saddle Creek, who was responsible for
`
`providing a safe place to work?
`
`A.
`
`Saddle Creek.
`
`MR. SHEEHAN: Objection,
`
`form.
`
`Q.
`
`(BY MR. DEVIN)
`
`As between ProLogistix and
`
`Saddle Creek, who was responsible for providing adequate
`
`supervision of temporary associates at the Grand Prairie
`
`facility?
`
`MR. SHEEHAN: Objection,
`
`form.
`
`A.
`
`Saddle Creek.
`
`Q.
`
`(BY MR. DEVIN)
`
`As between ProLogistix and
`
`Saddle Creek, who was responsible for providing site
`
`specific safety training for the temporary associates
`
`such as Hipolito Suarez?
`
`A.
`
`Saddle Creek.
`
`
`
`
`
` personal protective equipment.
`Do you see that?
`A. Yes.
`
`
`
`
`
`Q. As between Saddle Creek and ProLogistix, who was
` responsible for providing personal protective safety
` equipment to the temporary associates at the Grand Prairie facility?
`
` MR. SHEEHAN: Objection,
`form.
`
` A. Saddle Creek.
` (BY MR. DEVIN)
`Q.
`Stated a little bit broader,
`
`
` Mr. Devine, as between ProLogistix and Saddle Creek, who
`
`
`
`temporary associates to perform their work at the Grand
` Prairie facility?
`
`was responsible for providing equipment necessary for the
`
`
`
`Saddle Creek.
`A.
`
` Q. And specifically, sir,
`is it your understanding
`
`that —— or as between —— let me start over.
`Sorry.
`
` As between ProLogistix and Saddle Creek, who
`
`was responsible for providing the ladder that Hipolito
`
`
`
`Suarez was utilizing on the day of this accident to
` perform his work?
`
`
`
` A.
`Saddle Creek.
`
`
`
`
`Q. As between ProLogistix and Saddle Creek, who was
`
` responsible for furnishing the blower that Hipolito Suarez was using to perform his work on the day of the
`
`
`
`MR. SHEEHAN: Objection,
`
`form.
`
`A.
`
`Saddle Creek.
`
`Q.
`
`(BY MR. DEVIN)
`
`If you'd look now at
`
`Paragraph 5.e. of the contract.
`
`If Saddle Creek became
`
`unhappy with the performance of any temporary associate
`
`at the Grand Prairie facility, what was the procedure
`
`laid out
`
`in the contract for addressing Saddle Creek's
`
`unhappiness?
`
`A.
`
`They just need to let,
`
`in the case of Grand
`
`Prairie, it would be Orlando Vera know that they're
`
`unhappy with the performance of the employee and that
`
`employee would be reassigned to another client or they
`
`would be terminated.
`
`Q. Okay.
`
`If you would, please,
`
`look at Paragraph 6
`
`of Exhibit 37. This refers to Exhibit B of the document
`
`that you were asked about a little earlier.
`
`Do you see
`
`that?
`
`Okay.
`
`A. Yeah,
`
`I see that.
`
`I was just reading Number 6.
`
`Q. And that's the —— Exhibit B is the Agreement and
`
`Waiver that Mr. Sheehan asked you about.
`
`To your
`
`knowledge, sir, was Hipolito Suarez ever asked to sign an
`
`Agreement and Waiver similar to Exhibit B?
`
`A.
`
`I don't know.
`
`
`
`Labor Code,
`
`that the remainder of the contract would
`
`still remain in force?
`
`MR. SHEEHAN: Objection,
`
`form.
`
`A.
`
`I would also rely on our legal counsel for that.
`
`Q.
`
`(BY MR. DEVIN)
`
`I have a series of questions
`
`that I'm going to ask you regarding the relationship
`
`between ProLogistix and Saddle Creek.
`
`As between ProLogistix and Saddle Creek, who
`
`was responsible for training Hipolito Suarez as to the
`
`task or type of work that he was to perform at the Grand
`
`Prairie facility?
`
`MR. SHEEHAN: Objection,
`
`form.
`
`A.
`
`Saddle Creek.
`
`Q.
`
`(BY MR. DEVIN)
`
`As between ProLogistix and
`
`Saddle Creek, who was responsible for providing safety
`
`training to Hipolito Suarez in connection with the work
`
`that he was performing at the Grand Prairie facility?
`
`MR. SHEEHAN: Objection,
`
`form.
`
`A.
`
`Saddle Creek.
`
`Q.
`
`(BY MR. DEVIN)
`
`As between ProLogistix and
`
`Saddle Creek, who was responsible for providing equipment
`
`training --
`
`MR. SHEEHAN: Objection --
`
`Q.
`
`(BY MR. DEVIN)
`
`—— to Hipolito Suarez in
`
`
`
`Grand Prairie facility?
`
`MR. SHEEHAN: Objection,
`
`form.
`
`A.
`
`Saddle Creek.
`
`Q.
`
`(BY MR. DEVIN)
`
`As between ProLogistix and
`
`Saddle Creek, who was responsible for assigning w
