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CAUSE NO. 2019-30674
JERMAINE WASHINGTON IN THE DISTRICT COURT
VS. HARRIS COUNTY, TEXAS
WASTE MANAGEMENT, IN 281 JUDICIAL DISTRICT
DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION FOR TRIAL CONTINUANCE
AND DEFENDANT’S MOTION TO ABATE CASE
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Defendant, WASTE MANAGEMENT OF TEXAS, INC. Waste
Management and files this, its Response to Plaintiff’s Opposed Motion for Trial Continuance
and Defendant’s Motion to Abate Case.
INTRODUCTION
To be clear, Waste Management agrees that this case should be removed from the Court’s
February 1, 2021 trial docket. As Plaintiff is aware, there is no opposition to a trial reset or a new
docket control order. The only disputes between Plaintiff and Waste Management on this issue
are (1) whether the case should be ated rather than continued, and (2) if continued, for how long.
Ultimately, Waste Management believes that this is a case that will be ripe for dismissal
via summary judgment. There are at least four paths to summary judgment:
Plaintiff’s execution of a pre-injury lease and Waiver of Liability, Assumption
of Risk and Indemnity Agreement.
Waste Management’s reliance on Chapter 93 of Texas Labor Code as a defense;
Implications of Plaintiff’s own direction and control allegations on the borrowed
servant doctrine and the Texas Labor Code’s exclusive remedy defense; and/or
The absence of duty owed (and therefore no viable negligence claim), if Plaintiff
was not subject to Waste Management’s direction and control.
As discussed below, a paths but the firstare potentially impacted by a case currently
before the Texas Supreme Court. This case should be abated until that case has been decided.
II. BACKGROUND FACTS
It is, or should be undisputed that Plaintiff was employed by Taylor Smith Consulting, a
temporary agency that provides and assigns employees, like Plaintiff, to its client companies, like
Waste Management.
It is, or should be undisputed that at the time of Plaintiff’s alleged incident, Waste
Management was identified as an “alternate employer” on a Workers’ Compensation and
Employer Liability Insurance Policy issued to Taylor Smith Consulting (the “Policy”).
It is, or should be undisputed that Plaintiff submitted a claim for and received benefits
under the Taylor Smith/Waste Management Policy.
It has been alleged that the relationship between Taylor Smith Consulting and Waste
Management is controlled by a “Master Agreement.”
Ordinarily, facts such as these would support summary judgment based on the Texas Labor
Code’s exclusive remedy defense. In fact, the 113th Judicial District Court granted summary
judgment in Waste Management’s favor on similar facts (Taylor Smith Consulting employee
assigned to Waste Management sustains non-fatal injury while working for Waste Management)
in Cause No. 2014-60538; Robert Stevenson v. Waste Management, Inc., et. al., In the 113th
Judicial District Court of Harris County, Texas (the “Stevenson Case”).
However, the trial court’s decision in the Stevenson Case was overturned on appeal to the
14th Court of Appeals. Currently, the Stevenson Case is being considered by the Texas Supreme
Court. Oral argument was presented on or about October 28, 2020. The Court has not yet issued
its opinion.
Waste Management – Response to Continuance Page 2 of 8
III. ARGUMENT, ANALYSIS AND REQUESTED RELIEF
Admittedly, not every issue present in this case is present in the Stevenson Case. For
example, but not by way of limitation, in the Stevenson Case, there is no pre-injury Release and
Waiver of Liability, Assumption of Risk and Indemnity Agreement in play, and on information
and belief, Waste Management did not include Chapter 93 of the Texas Labor Code as an
affirmative defense prior to summary judgment being granted. However, there is a good deal of
overlap insofar as the Master Agreement, the Taylor Smith/Waste Management relationship, the
Labor Code’s exclusive remedy defense, “direction and control” allegations, and the borrowed
servant doctrine are concerned. In consideration of these areas of overlap, this case should be
abated pending the Texas Supreme Court’s decision in Stevenson.
1. A trial reset is necessary.
Waste Management agrees with Plaintiff that a trial reset is necessary. Waste Management
asserts that the case has been diligently developed to this point, as the parties have exchanged
written discovery. While additional written discovery may also prove necessary, Plaintiff
correctly informs this Court that circumstances have prevented the parties from transitioning the
case to the deposition stage.
Even if the Stevenson Case was not in play, the unavoidable absence of depositions to this
point in the case impacts the parties’ respective abilities to work with and designate experts, to
evaluate options and proceed to mediation, and to otherwise make this case “trial ready.” As a
general concept, Waste Management joins Plaintiff in his request for a trial reset and a new Docket
Control Order.
Waste Management – Response to Continuance Page 3 of 8
2. It is the length of the trial reset that is in dispute.
Where the parties diverge however, is with respect to the length of the trial reset. Plaintiff
proposes a 120-day continuance, which would effectively result in a June 2021 trial setting. Waste
Management seeks a case abatement, or alternatively, a lengthier reset.
First, Waste Management believes that a June 2021 trial setting would not solve any of the
problems originally identified by Plaintiff and also discussed above. While a return to the norm
may be on the horizon, there is presently no reason to believe that a 120-day continuance will
afford the parties to complete the work that still needs to be done, including without limitation,
depositions, expert designations, and mediation/alternative dispute resolution.
Second, the work that still needs to be done exposes the parties to potentially unnecessary
and costly fees and expenses. Without an opinion from the Texas Supreme Court in the Stevenson
Case, the future of this case remains unclear. While Waste Management could adopt a piecemeal
approach to summary judgment, separating the first path addressed above (Plaintiff’s Release and
Waiver) from the other three, in all other respects the development and final resolution of this case
(whether by settlement, summary judgment or trial) are likely impacted by the outcome of the
Stevenson Case.
If the Texas Supreme Court reverses the 14th Court of Appeals/upholds the trial court’s
summary judgment, then there would seemingly be a clear path to summary judgment in this case
via any or all four paths. Conversely, if the Texas Supreme Court follows the 14 th Court of
Appeals, then the dynamics of this case likely change as well. Granted, much will depend on the
actual content of the opinion issued, but given the areas of overlap, it seems abundantly clear that
the Stevenson Case will directly impact the ultimate resolution of this case.
At least tacitly, Plaintiff recognizes the significance of the Stevenson Case and its potential
implications. Consider for example Plaintiff’s Second Amended Petition of December 8, 2020.
Waste Management – Response to Continuance Page 4 of 8
At Section IV, Paragraph 7, Plaintiff incorporates concepts taken directly from, or at least inspired
by the 14th Court of Appeals’ decision in the Stevenson Case.1 The incorporated concepts go to
the very heart of what the Texas Supreme Court is currently considering.
The 120-day trial reset sought by Plaintiff exposes the parties, the witnesses, the experts,
and this Court to potentially unnecessary expenditures of time, money, effort and/or resources.
Nothing is lost and much is gained (for one side, the other or even both) by waiting for the Texas
Supreme Court to decide the Stevenson Case.
Third, given the areas of overlap, deciding this case before the Stevenson Case is resolved
by the Texas Supreme Court opens the door to potentially conflicting, inconsistent judgments at
various levels. A key issue in the Stevenson Case is whether Waste Management is immune from
liability via the Texas Labor Code’s exclusive remedy defense. In Stevenson, the issue was
considered from the borrowed servant/direction and control perspective. The trial court granted
summary judgment, but the 14th Court of Appeals determined that language in the Master
Agreement (similar to language referenced by Plaintiff in his Second Amended Petition) created a
fact issue. The Texas Supreme Court is currently considering this very issue (among others).
Because Chapter 93 of the Texas Labor Code establishes as a matter of law that when a
temporary employer, like Taylor Smith obtains workers compensation insurance, both it and its
client company, (here, Waste Management) are exempt from liability per the exclusive remedy
defense,2 the debate as to the implication of the Master Agreement should be moot. However, on
information and belief, the Texas Supreme Court is considering the Stephenson Case with an eye
towards Chapter 93 as well. Therefore, until an opinion is issued, we cannot know for certain.
1
See Plaintiff’s Second Amended Petition at Page 3, Paragraph 7
2
See Texas Labor Code §93.004(b).
Waste Management – Response to Continuance Page 5 of 8
This is important because the Plaintiff’s requested 120-day reset will force Waste
Management to move forward with summary judgment in advance of the opinion. From that point,
the potential for inconsistent, or even incorrect, judgments and rulings abound. For example, but
not limitation, consider the implications of this Court denying Waste Management’s summary
judgment motion, if the Texas Supreme Court later reverses the 14th Court of Appeals’ decision in
Stevenson. This is one of many potential inconsistencies that could result.
Abating this case pending the issuance of an opinion in Stevenson allows time for the Texas
Supreme Court to complete its consideration of Stevenson, and provide guidance and instructions
as to how situations such as those at issue in this case, in Stevenson, and in others are to be handled.
An abatement allows for uniform and consistent application of the law to situations such as these.
4. Requested Relief.
All of the issues addressed above can be resolved by abating the case pending the Texas
Supreme Court’s opinion in the Stevenson Case, or at least granting a longer trial reset than the
120-day reset sought by Plaintiff. For these reasons, Waste Management asks that the Court:
(1) Remove the case from the current trial docket;
(2) Abate the case pending the issuance of the Texas Supreme Court’s opinion in the
Stevenson Case;
(3) Or, in the alternative to abatement, reset this case on a trial docket not earlier than
November 2021 (approximately one year post-oral argument in the Stevenson
Case); and
(4) Upon reinstatement or continuance, issue a new Docket Control Order.
IV. PRAYER
WHEREFORE, PREMISES CONSIDERED, Defendant, WASTE MANAGEMENT OF
TEXAS, INC., improperly named as WASTE MANAGEMENT, INC. prays:
1. That this Court grant the relief requested in the Motion; and
Waste Management – Response to Continuance Page 6 of 8
2. That this Court grant/award Defendant, Waste Management, such other and further
relief at law and in equity to which it may be justly entitled.
Respectfully submitted,
GRIFFIN & MATTHEWS
BY: /s/ Neal E. Spielman
NEAL E. SPIELMAN
State Bar No. 00794678
1155 Dairy Ashford, Suite 300
Houston, Texas 77079
Telephone: (281) 870-1124
Facsimile: (281) 870-1647
Email: nspielman@grifmatlaw.com
ATTORNEYS FOR DEFENDANT,
WASTE MANAGEMENT OF TEXAS INC,
improperly named as WASTE
MANAGEMENT, INC.
Waste Management – Response to Continuance Page 7 of 8
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument has been forwarded
to the following counsel of record via E-File and/or in the following manner on this the 28th day
of December, 2020:
Charles F. Herd, Jr.
Herd Law Firm
19500 Tomball Parkway, Suite 250
Houston, Texas 77070
Via E-Mail: CFH@HerdLawFirm.Law
BY: /s/ Neal E. Spielman
NEAL E. SPIELMAN
Waste Management – Response to Continuance Page 8 of 8
Preview
CAUSE NO. 2019-30674 JERMAINE WASHINGTON IN THE DISTRICT COURT VS. HARRIS COUNTY, TEXAS WASTE MANAGEMENT, IN 281 JUDICIAL DISTRICT DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION FOR TRIAL CONTINUANCE AND DEFENDANT’S MOTION TO ABATE CASE TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, Defendant, WASTE MANAGEMENT OF TEXAS, INC. Waste Management and files this, its Response to Plaintiff’s Opposed Motion for Trial Continuance and Defendant’s Motion to Abate Case. INTRODUCTION To be clear, Waste Management agrees that this case should be removed from the Court’s February 1, 2021 trial docket. As Plaintiff is aware, there is no opposition to a trial reset or a new docket control order. The only disputes between Plaintiff and Waste Management on this issue are (1) whether the case should be ated rather than continued, and (2) if continued, for how long. Ultimately, Waste Management believes that this is a case that will be ripe for dismissal via summary judgment. There are at least four paths to summary judgment: Plaintiff’s execution of a pre-injury lease and Waiver of Liability, Assumption of Risk and Indemnity Agreement. Waste Management’s reliance on Chapter 93 of Texas Labor Code as a defense; Implications of Plaintiff’s own direction and control allegations on the borrowed servant doctrine and the Texas Labor Code’s exclusive remedy defense; and/or The absence of duty owed (and therefore no viable negligence claim), if Plaintiff was not subject to Waste Management’s direction and control. As discussed below, a paths but the firstare potentially impacted by a case currently before the Texas Supreme Court. This case should be abated until that case has been decided. II. BACKGROUND FACTS It is, or should be undisputed that Plaintiff was employed by Taylor Smith Consulting, a temporary agency that provides and assigns employees, like Plaintiff, to its client companies, like Waste Management. It is, or should be undisputed that at the time of Plaintiff’s alleged incident, Waste Management was identified as an “alternate employer” on a Workers’ Compensation and Employer Liability Insurance Policy issued to Taylor Smith Consulting (the “Policy”). It is, or should be undisputed that Plaintiff submitted a claim for and received benefits under the Taylor Smith/Waste Management Policy. It has been alleged that the relationship between Taylor Smith Consulting and Waste Management is controlled by a “Master Agreement.” Ordinarily, facts such as these would support summary judgment based on the Texas Labor Code’s exclusive remedy defense. In fact, the 113th Judicial District Court granted summary judgment in Waste Management’s favor on similar facts (Taylor Smith Consulting employee assigned to Waste Management sustains non-fatal injury while working for Waste Management) in Cause No. 2014-60538; Robert Stevenson v. Waste Management, Inc., et. al., In the 113th Judicial District Court of Harris County, Texas (the “Stevenson Case”). However, the trial court’s decision in the Stevenson Case was overturned on appeal to the 14th Court of Appeals. Currently, the Stevenson Case is being considered by the Texas Supreme Court. Oral argument was presented on or about October 28, 2020. The Court has not yet issued its opinion. Waste Management – Response to Continuance Page 2 of 8 III. ARGUMENT, ANALYSIS AND REQUESTED RELIEF Admittedly, not every issue present in this case is present in the Stevenson Case. For example, but not by way of limitation, in the Stevenson Case, there is no pre-injury Release and Waiver of Liability, Assumption of Risk and Indemnity Agreement in play, and on information and belief, Waste Management did not include Chapter 93 of the Texas Labor Code as an affirmative defense prior to summary judgment being granted. However, there is a good deal of overlap insofar as the Master Agreement, the Taylor Smith/Waste Management relationship, the Labor Code’s exclusive remedy defense, “direction and control” allegations, and the borrowed servant doctrine are concerned. In consideration of these areas of overlap, this case should be abated pending the Texas Supreme Court’s decision in Stevenson. 1. A trial reset is necessary. Waste Management agrees with Plaintiff that a trial reset is necessary. Waste Management asserts that the case has been diligently developed to this point, as the parties have exchanged written discovery. While additional written discovery may also prove necessary, Plaintiff correctly informs this Court that circumstances have prevented the parties from transitioning the case to the deposition stage. Even if the Stevenson Case was not in play, the unavoidable absence of depositions to this point in the case impacts the parties’ respective abilities to work with and designate experts, to evaluate options and proceed to mediation, and to otherwise make this case “trial ready.” As a general concept, Waste Management joins Plaintiff in his request for a trial reset and a new Docket Control Order. Waste Management – Response to Continuance Page 3 of 8 2. It is the length of the trial reset that is in dispute. Where the parties diverge however, is with respect to the length of the trial reset. Plaintiff proposes a 120-day continuance, which would effectively result in a June 2021 trial setting. Waste Management seeks a case abatement, or alternatively, a lengthier reset. First, Waste Management believes that a June 2021 trial setting would not solve any of the problems originally identified by Plaintiff and also discussed above. While a return to the norm may be on the horizon, there is presently no reason to believe that a 120-day continuance will afford the parties to complete the work that still needs to be done, including without limitation, depositions, expert designations, and mediation/alternative dispute resolution. Second, the work that still needs to be done exposes the parties to potentially unnecessary and costly fees and expenses. Without an opinion from the Texas Supreme Court in the Stevenson Case, the future of this case remains unclear. While Waste Management could adopt a piecemeal approach to summary judgment, separating the first path addressed above (Plaintiff’s Release and Waiver) from the other three, in all other respects the development and final resolution of this case (whether by settlement, summary judgment or trial) are likely impacted by the outcome of the Stevenson Case. If the Texas Supreme Court reverses the 14th Court of Appeals/upholds the trial court’s summary judgment, then there would seemingly be a clear path to summary judgment in this case via any or all four paths. Conversely, if the Texas Supreme Court follows the 14 th Court of Appeals, then the dynamics of this case likely change as well. Granted, much will depend on the actual content of the opinion issued, but given the areas of overlap, it seems abundantly clear that the Stevenson Case will directly impact the ultimate resolution of this case. At least tacitly, Plaintiff recognizes the significance of the Stevenson Case and its potential implications. Consider for example Plaintiff’s Second Amended Petition of December 8, 2020. Waste Management – Response to Continuance Page 4 of 8 At Section IV, Paragraph 7, Plaintiff incorporates concepts taken directly from, or at least inspired by the 14th Court of Appeals’ decision in the Stevenson Case.1 The incorporated concepts go to the very heart of what the Texas Supreme Court is currently considering. The 120-day trial reset sought by Plaintiff exposes the parties, the witnesses, the experts, and this Court to potentially unnecessary expenditures of time, money, effort and/or resources. Nothing is lost and much is gained (for one side, the other or even both) by waiting for the Texas Supreme Court to decide the Stevenson Case. Third, given the areas of overlap, deciding this case before the Stevenson Case is resolved by the Texas Supreme Court opens the door to potentially conflicting, inconsistent judgments at various levels. A key issue in the Stevenson Case is whether Waste Management is immune from liability via the Texas Labor Code’s exclusive remedy defense. In Stevenson, the issue was considered from the borrowed servant/direction and control perspective. The trial court granted summary judgment, but the 14th Court of Appeals determined that language in the Master Agreement (similar to language referenced by Plaintiff in his Second Amended Petition) created a fact issue. The Texas Supreme Court is currently considering this very issue (among others). Because Chapter 93 of the Texas Labor Code establishes as a matter of law that when a temporary employer, like Taylor Smith obtains workers compensation insurance, both it and its client company, (here, Waste Management) are exempt from liability per the exclusive remedy defense,2 the debate as to the implication of the Master Agreement should be moot. However, on information and belief, the Texas Supreme Court is considering the Stephenson Case with an eye towards Chapter 93 as well. Therefore, until an opinion is issued, we cannot know for certain. 1 See Plaintiff’s Second Amended Petition at Page 3, Paragraph 7 2 See Texas Labor Code §93.004(b). Waste Management – Response to Continuance Page 5 of 8 This is important because the Plaintiff’s requested 120-day reset will force Waste Management to move forward with summary judgment in advance of the opinion. From that point, the potential for inconsistent, or even incorrect, judgments and rulings abound. For example, but not limitation, consider the implications of this Court denying Waste Management’s summary judgment motion, if the Texas Supreme Court later reverses the 14th Court of Appeals’ decision in Stevenson. This is one of many potential inconsistencies that could result. Abating this case pending the issuance of an opinion in Stevenson allows time for the Texas Supreme Court to complete its consideration of Stevenson, and provide guidance and instructions as to how situations such as those at issue in this case, in Stevenson, and in others are to be handled. An abatement allows for uniform and consistent application of the law to situations such as these. 4. Requested Relief. All of the issues addressed above can be resolved by abating the case pending the Texas Supreme Court’s opinion in the Stevenson Case, or at least granting a longer trial reset than the 120-day reset sought by Plaintiff. For these reasons, Waste Management asks that the Court: (1) Remove the case from the current trial docket; (2) Abate the case pending the issuance of the Texas Supreme Court’s opinion in the Stevenson Case; (3) Or, in the alternative to abatement, reset this case on a trial docket not earlier than November 2021 (approximately one year post-oral argument in the Stevenson Case); and (4) Upon reinstatement or continuance, issue a new Docket Control Order. IV. PRAYER WHEREFORE, PREMISES CONSIDERED, Defendant, WASTE MANAGEMENT OF TEXAS, INC., improperly named as WASTE MANAGEMENT, INC. prays: 1. That this Court grant the relief requested in the Motion; and Waste Management – Response to Continuance Page 6 of 8 2. That this Court grant/award Defendant, Waste Management, such other and further relief at law and in equity to which it may be justly entitled. Respectfully submitted, GRIFFIN & MATTHEWS BY: /s/ Neal E. Spielman NEAL E. SPIELMAN State Bar No. 00794678 1155 Dairy Ashford, Suite 300 Houston, Texas 77079 Telephone: (281) 870-1124 Facsimile: (281) 870-1647 Email: nspielman@grifmatlaw.com ATTORNEYS FOR DEFENDANT, WASTE MANAGEMENT OF TEXAS INC, improperly named as WASTE MANAGEMENT, INC. Waste Management – Response to Continuance Page 7 of 8 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing instrument has been forwarded to the following counsel of record via E-File and/or in the following manner on this the 28th day of December, 2020: Charles F. Herd, Jr. Herd Law Firm 19500 Tomball Parkway, Suite 250 Houston, Texas 77070 Via E-Mail: CFH@HerdLawFirm.Law BY: /s/ Neal E. Spielman NEAL E. SPIELMAN Waste Management – Response to Continuance Page 8 of 8