Workers Comp Only Recourse For 'Borrowed Servant'

Wesby v. Act Pipe & Supply Inc., 199 S.W.2d 614 (Tex.App. 2006).

On May 30, 2002, Glenn Wesby, an employee of Labor Express Temporary Services, a temp agency, was working at Act Pipe & Supply Inc. in Dallas, Tex. An Act Pipe employee struck a stack of large PVC pipes with a forklift, causing the pipes to fall and pin Wesby against a wall. Labor Express provided workers'compensation insurance for Wesby, and Act Pipe's contract with Labor Express stated that a portion of the money Act Pipe paid Labor Express was to be applied to workers'-comp insurance provided by Labor Express.

Wesby sued Act Pipe and the employee who was operating the forklift at the time of his accident, charging them with negligently causing his accident. The Texas trial court granted summary judgment for Act Pipe, ruling that Wesby's negligence suit was barred under the Texas Workers' Compensation Act. This act makes workers'-comp benefits the exclusive remedy of an injured employee against his employer.

Wesby appealed to the Texas Court of Appeals, and lost. The court held that Wesby, an employee of Labor Express, was a "borrowed servant" of Act Pipe. According to the court, because Wesby was a borrowed servant who was entitled to workers' comp benefits, and because Act Pipe had workers'-comp insurance that covered claims by borrowed employees, Act Pipe was protected from suit by the exclusive remedy provision of the Texas Workers' Compensation Act.

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