author: ANNE GARDNER, Justice.

text:
    PRESBYTERIAN COMMUNITY HOSPITAL OF DENTON d/b/a Presbyterian Hospital of Denton and Chad Hammonds, R.N., Appellants, v. Connie SMITH, Individually and as Personal Representative of the Estate of Thomas Edward Smith, Deceased, and as Next Friend for Thomas Anthony Smith, a Minor, and Douglas Smith and Stephanie Smith, Appellees.
    No. 2-09-288-CV.
    Court of Appeals of Texas, Fort Worth.
    May 20, 2010.

      Jones Carr McGoldrick, LLP and Jeffrey F. Wood, James J. McGoldrick and Heather J. Forgey, Dallas, for appellants.
    Keith Law Firm, PC and Darrell L. Keith, Fort Worth, for appellees.
    PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ.
   OPINION

ANNE GARDNER, Justice.

I. Introduction

In this interlocutory appeal, Appellants Presbyterian Hospital of Denton d/b/a Presbyterian Hospital of Denton and Chad Hammonds, R.N. (collectively, the Hospital) argue that the trial court abused its discretion by denying the Hospital’s motion to dismiss. We affirm the trial court’s order.

II. Procedural Background

Appellees Connie Smith, Individually, and as Personal Representative of the Estate of Thomas Edward Smith, Deceased, and as Next Friend for Thomas Anthony Smith, a Minor, and Douglas and Stephanie Smith (collectively, the Smiths) sued the Hospital on September 2, 2008. The Smiths asserted that the Hospital, by and through its nurse-employees, acted negligently in its care and treatment of Thomas Edward Smith. On December 31, 2008, the Smiths served the Hospital with expert reports by Dr. Michael E. Halkos, a car-diothoracic surgeon, and Dean W. Hay-man, R.N., a registered nurse specializing in cardiac and critical care nursing. The Hospital filed a motion to dismiss and argued Dr. Halkos’s and Nurse Hayman’s expert reports do not meet the statutory requirements because they do not constitute “an objective good faith effort to provide a fair summary of the alleged experts’ opinions on the standard of care, alleged breach thereof, and how any alleged breach by [the Hospital] caused [the Smiths’] damages.”

After a hearing, the trial court denied the Hospital’s motion as to Dr. Halkos’s report. The trial court partially denied and partially granted the Hospital’s motion as to Nurse Hayman’s report and granted the Smiths an extension to supplement Nurse Hayman’s report if they chose to do so. The Smiths then served the Hospital with a supplemental report from Nurse Hayman, and the Hospital again objected. After a hearing, the trial court overruled the Hospital’s objections to the supplemental report. This interlocutory appeal followed. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(9) (Vernon 2008); Lewis v. Funderburk, 253 S.W.3d 204, 208 (Tex.2008) (authorizing appeal from trial court order determining that expert report was adequate and denying motion to dismiss).

III. Factual Background

The Smiths’ fourth amended petition, their live pleading at the time of the second hearing on the Hospital’s motion to dismiss, contains the following allegations relevant to their claims against the Hospital.

On June 21, 2006, Mr. Smith presented to the emergency department at the Hospital with intermittent headaches, feverishness, increasing malaise and shortness of breath, minimal cough, shoulder and back pain, and leg swelling. He was admitted to the Hospital for further evaluation and treatment. Tests revealed “the presence of bilateral pneumonia and moderate renal compromise” and “severe tricuspid regurgitation with vegetations present.” Mr. Smith’s blood cultures were also positive for methicillin-sensitive Staphylococcus au-reus, and he was treated with intravenous antibiotics.

Because of his diagnosis of tricuspid valve endocarditis, Mr. Smith “underwent a tricuspid valve debridement and excision with tricuspid valve replacement” on June 30, 2006. A transesophageal echocardio-gram at the end of the operative procedure “revealed good seating of the valve with no evidence of perivalvular leak, good function of the valve leaflets and ... no evidence of an atrial-ventricular block.” Mr. Smith then returned to the intensive care unit (the ICU) for further treatment and recovery.

On July 4, 2006, Mr. Smith had a Quinton catheter sutured into place in his left internal jugular vein. He tolerated the procedure well, and all catheters in his body were “noted to be free of reddness [sic] or edema.” However, Nurse Ham-monds entered Mr. Smith’s room on July 5, 2006, and found that Mr. Smith “was experiencing agonal respirations,” that “the Quintan [sic] catheter was no longer in its proper place,” and that Mr. Smith “was and had been experiencing significant bleeding.” The medical staff successfully resuscitated Mr. Smith, and he remained in the ICU. Later that day, however, Mr. Smith “was medically assessed that he was not able to follow simple commands, except to open his eyes when his name was called.”

Over the next few days, Mr. Smith continued receiving blood pressure medications and received a new Quinton catheter. He received dialysis therapy, but by July 8, 2006, his “blood pressure continued to drop despite increasing ... his blood pressure medications” and other treatments. Mr. Smith also had “continuous oozing of blood from his mouth, nose, he-modialysis catheter, and scrotal area.” On July 9, 2006, Dr. Mario Ruiz informed Mr. Smith’s wife, Connie, that Mr. Smith was “slowly dying.” On July 10, 2006, “a medical decision was made to withdraw life support measures from Mr. Smith due to his severely [sic] brain damaged [sic] and other conditions, such life support measures were withdrawn from Mr. Smith, and he was pronounced dead” on the evening of July 10, 2006. An autopsy by Dr. Juan Zamora “revealed pathological findings of a status post recent tricuspid valve prosthesis implant showing no complications, hypertrophy of the heart (500g) with organizing fibrinoid percarditis, bilateral gran-ulomata of the lungs, edema of the brain with acute hepatitis, and other findings.”

IY. Standard of Review

A trial court’s ruling concerning an expert report under section 74.351 (formerly article 4590i, section 13.01) of the Medical Liability and Insurance Act is reviewable under the abuse of discretion standard. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351; Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex.2001). To determine whether a trial court abused its discretion, we must decide whether the trial court acted without reference to any guiding rules or principles; in other words, we must decide whether the act was arbitrary or unreasonable. Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex.2004). An appellate court cannot conclude that a trial court abused its discretion merely because the appellate court would have ruled differently in the same circumstances. Bowie Mem’l, 79 S.W.3d at 52; E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex.1995).

V. Statutory Requirements

A health care liability claimant must serve an expert report on each defendant no later than the 120th day after the claim is filed. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a). A defendant may challenge the adequacy of a report by filing a motion to dismiss, and the trial court must grant the motion to dismiss if it finds, after a hearing, that “the report does not represent an objective good faith effort to comply with the definition of an expert report” in the statute. Id. § 74.351(i). While the expert report “need not marshal all of the plaintiffs proof,” it must provide a fair summary of the expert’s opinions as to the “applicable standard of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed.” Id. § 74.351(r)(6); Palacios, 46 S.W.3d at 878 (construing former article 4590i, § 13.01).

To constitute a good faith effort, the report must discuss the standards of care, breach, and causation with sufficient specificity (1) to inform the defendant of the conduct the plaintiff has called into question and (2) to provide the trial court with a basis to conclude that the claims have merit. See Bowie Mem’l, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 879. A report does not fulfill this requirement if it merely states the expert’s conclusions or if it omits any of the statutory requirements. Bowie Mem’l, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 879. But the information in the report “does not have to meet the same requirements as the evidence offered in a summary-judgment proceeding or at trial.” Palacios, 46 S.W.3d at 879.

When reviewing the adequacy of a report, the only information relevant to the inquiry is the information contained within the four corners of the document. Bowie Mem’l, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 878. This requirement precludes a court from filling gaps in a report by drawing inferences or guessing as to what the expert likely meant or intended. See Austin Heart, P.A. v. Webb, 228 S.W.3d 276, 279 (Tex.App.-Austin 2007, no pet.). However, section 74.351 does not prohibit experts, as opposed to courts, from making inferences based on medical history. Marvin v. Fithian, No. 14-07-00996-CV, 2008 WL 2579824, at *4 (Tex.App.-Houston [14th Dist.] July 1, 2008, no pet.) (mem. op.); see also Tex.R. Evid. 703 (providing that an expert may draw inferences from the facts or data in a particular case); Tex.R. Evid. 705 (providing that expert may testify in terms of opinions and inferences).

VI. Analysis

The Hospital argues in its sole issue that the expert reports by Dr. Halkos and Nurse Hayman are insufficient and that the trial court abused its discretion by denying the Hospital’s motion to dismiss. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(i). Dr. Halkos’s and Nurse Hay-man’s expert reports discuss the acts and omissions of three of the Hospital’s nurse-employees: Donna L. McElravy, R.N.; Chad Hammonds, R.N.; and Garland Gill, R.N. We address the allegations against each of these nurse-employees in turn.

A. Duty and Alleged Breach by Nurse McElravy

The Hospital contends Dr. Halkos’s report is insufficient because it does not adequately describe the standard of care applicable to Nurse McElravy or how Nurse McElravy allegedly breached the standard of care.

Relevant portions of Dr. Halkos’s report provide:

McElravy was responsible for assisting Dr. Bolton in managing the post-operative anticoagulation therapy of Mr. Smith to prevent thrombus formation as a result of the mechanical valve replacement surgery performed on the patient. At that time, the incidence of thrombus (blood clot) complications of following mechanical valve replacement surgery was or should have been a matter of common knowledge to reasonably prudent registered nurses specializing in cardiovascular and thoracic surgery.
McElravy should have properly monitored anticoagulant therapy for Mr. Smith in a manner that would maintain an INR (International Normalized Ratio) of 2.5 to 3.5; or a PTT (Partial Thromboplastin Time) of 1.5 to 2.5 times the control.... On the morning of July 4, 2006, at about 9:00 a.m., Dr. Bolton noted an INR greater than 3 in Mr. Smith, and recorded in the progress notes that Mr. Smith’s INR was greater than 3 and noted to hold the administration of coumadin that night. [The Hospital] laboratory reported critically abnormal results of Mr. Smith’s PT (protime) at about 9:34 a.m., as being greater than 120 seconds[,] and the laboratory was unable to calculate the INR. The protime greater than 120 seconds value reflected an excessive and potentially dangerous state of anti-coagulation in Mr. Smith’s blood.
When the critically abnormal PT results and lack of a calculable INR were reported, McElravy should have become aware of this information, and reported such values to Dr. Bolton, Dr. Russell, or PA Dizney and cause repeat testing of a new blood specimen from Mr. Smith to verify the previously noted and reported critical results.... Therefore, when McElravy discovered or should have discovered that Dr. Bolton improperly recorded Mr. Smith’s INR as greater than 3, she failed to meet the applicable standard of reasonable and prudent nursing care in that she failed to bring to Dr. Bolton or PA Dizney’s attention Dr. Bolton’s improper assessment of Mr. Smith’s INR on the morning of July 4, 2006[;] she also failed to meet the standard of reasonable nursing care in failing to recognize Mr. Smith’s excessive anticoagulation blood condition, report such condition to Dr. Bolton, Dr. Russell or PA Dizney and bring about appropriate intervention to correct this dangerous condition for Mr. Smith.

Dr. Halkos’s report adequately describes Nurse McElravy’s duties and alleged breaches of those duties. The report states that McElravy: (1) had a duty to assist Dr. Bolton with Mr. Smith’s postoperative anticoagulation therapy; (2) should have known the incidence of thrombus following mechanical valve replacement surgery; (3) should have monitored Mr. Smith’s anticoagulant therapy so as to maintain an INR of 2.5 to 8.5 or a PTT of 1.5 to 2.5 times the control; (4) should have known Dr. Bolton incorrectly recorded the INR as greater than 3; (5) failed to report Dr. Bolton’s incorrect assessment of Mr. Smith’s INR; and (6) failed to recognize or report Mr. Smith’s excessive anti-coagulation blood condition to Dr. Bolton, Dr. Russell, or PA Dizney. These statements, all contained within the four corners of Dr. Halkos’s report, are sufficient to inform the Hospital of the specific conduct by Nurse McElravy that the Smiths have called into question and provide a basis for the trial court to conclude that the Smiths’ claim has merit. See Bowie Mem’l Hosp., 79 S.W.3d at 52; Palacios, 46 S.W.3d at 879.

The Hospital also argues that several individual statements in Dr. Halkos’s report are insufficient. We do not address these specific arguments by the Hospital, however, because Dr. Halkos’s report, as a whole, provides a “fair summary” of his opinions; it (1) sufficiently informs the Hospital of the conduct the Smiths question and (2) provides the trial court with a basis to conclude the Smiths’ claim has merit. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(r)(6); Bowie Mem’l, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 879; Benavides v. Garcia, 278 S.W.3d 794, 799 (Tex.App.-San Antonio 2009, pet. denied) (stating that opinion in expert report, read in isolation, appeared conclusory, but holding that opinion was sufficiently described in context of entire report). The trial court did not abuse its discretion by finding that Dr. Halkos’s report adequately address Nurse McElravy’s alleged duties and breaches of those duties.

B. Duty and Alleged Breach by Nurse Hammonds

The Hospital also contends Nurse Hay-man’s report and supplemental report are insufficient because they do not adequately describe the standard of care applicable to Nurse Hammonds or how Nurse Ham-monds allegedly breached the standard of care.

Relevant portions of Nurse Hayman’s report provide:

Nurse Hammonds was responsible for providing reasonable and prudent nursing diagnosis, assessment, care and treatment for Mr. Smith’s post-operative conditions and well-being in the [Hospital] ICU, and this responsibility included careful and frequent monitoring of his physical and mental conditions, the plan of care from multiple consultants, and the delivery of ongoing intensive nursing care in the ICU and interventions as prescribed by attending and consulting physicians as well as reasonable nursing practices.
Nurse Hammonds administered 4 mg of morphine sulfate by IV and 15 mg of hydroeodone by mouth at 2000 (8:00 PM) on 7/04/06. Nurse Hammonds failed to properly administer the PRN (as necessary) pain control orders because he should have known that both medications should not have been administered to Mr. Smith in one dose. If Nurse Hammonds believed such orders allowed the choice to administer both medications at one time, then Ham-monds failed to question or clarify Dr. Bolton’s orders. It was a violation of the reasonable and prudent standards of nursing care for a critical care nurse to administer the medications in that manner or not to call Dr. Bolton and question the orders.
Nurse Hammonds failed to perform sufficient surveillance to discover the removal of the IJ catheter in time to prevent Mr. Smith’s hemorrhagic arrest. A reasonably prudent critical care nurse ... should have known that continuous bleeding for approximately 30 — 45 minutes would lead to hemorrhagic cardiac arrest. Therefore, it is reasonable to conclude, in reasonable nursing probability, that Defendant Hammonds failed to see and assess Mr. Smith for at least 30 minutes prior to his arrest. According to the hospital records, Hammonds recorded Mr. Smith’s vital signs at a time prior to his arrest when the Quinton catheter must have been out and therefore significant bleeding would and should have been obvious to a critical care nurse, including Hammonds, performing duties according to the standards for reasonable and prudent nurses in ICU settings. The hospital ICU records indicate that Hammonds either failed to properly observe Mr. Smith, or he did not accurately and completely record his nursing actions in the hospital record, and both such failures would be a violation of the applicable standard of nursing care for Hammonds.
Nurse Hammonds failed to set alarm limits on the physiologic monitors that reflected the patient’s baseline vital signs and thereby failed to discover when various parameters were in alarm condition.... Hammonds either failed to transduce the IJ catheter to the alarm system or he failed to respond to the alarm condition caused by the removal of the device. In either situation, Hammonds failed to meet the applicable standard of nursing care for Mr. Smith.... In violation of the standards for reasonable and prudent critical care nursing, Nurse Hammonds failed to document alarm conditions, rhythm strips, oxygen de-saturation or his nursing responses to any of the abnormalities that occurred before Mr. Smith exsanguinat-ed (bled out) into arrest.
The hospital code record reflects that ECG monitoring and pulse oximetry were in progress at the time of the arrest event. Defendant Hammonds either failed to establish that monitoring or he ignored the alarm conditions that would have occurred in the setting of “agonal breathing.” Mr. Smith’s agonal breathing would have caused alarm conditions in the rate of respirations and oxygen saturation on the alarm system .... Defendant Hammonds failed to recognize, intervene in, or document and report any such alarm conditions for Mr. Smith at that time. Further, Ham-monds had an obligation to be in audible or visual proximity to promptly and adequately respond to any such clinical or physiological alarm conditions.
Using the physiologic monitoring system, Nurse Hammonds should have established and monitored clinical alarms/limits based on [Mr. Smith’s] condition.... All central venous lines or catheters, like the left internal jugular catheter, should have been transduced to the physiological monitoring system such that the monitoring system would alarm when a central line became disconnected.
Defendant Hammonds failed to perform sufficient surveillance to discover the removal of the IJ catheter in time to prevent Mr. Smith’s hemorrhagic arrest. A reasonably prudent critical care nurse, would have known that continuous bleeding for approximately 30 — 45 minutes would lead to hemorrhagic cardiac arrest. Therefore, in reasonable medical probability, Hammonds failed to observe Mr. Smith for 30 — 45 minutes pri- or to the arrest event.

In addition, Nurse Hayman’s supplemental report provides that the standard of care applicable to Nurse Hammonds requires him to have basic knowledge of all medications he administers to a patient, including the potential side effect of the medications to assess, from a nursing perspective, “decreased levels of consciousness, disorientation, and/or sedation in patients” similar to Mr. Smith, and to “utilize wrist restraints in the care of patients, including Mr. Smith, who demonstrate a decreased level of consciousness, disorientation, and/or sedation in order to prevent the patient from causing injury to himself.” Nurse Hayman’s supplemental report states that Nurse Hammonds failed to appreciate the potential side effects of simultaneous doses of morphine sulphate and hydrocodone, failed to assess, from a nursing perspective, Mr. Smith’s resulting neurological impairment and decreased levels of consciousness, disorientation, and/or sedation, and failed to utilize wrist restraints to prevent Mr. Smith from causing injury to himself.

Nurse Hayman’s report and supplemental report provide that Nurse Ham-monds: (1) had a duty to monitor Mr. Smith’s post-operative mental and physical conditions; (2) had a duty to either question or clarify Dr. Bolton’s order before administering both morphine and hydroco-done to Mr. Smith but failed to do either; (3) failed to assess, from a nursing perspective, or appreciate Mr. Smith’s altered level of consciousness; (4) failed to use bilateral soft wrist restraints or obtain orders from Dr. Bolton or Dr. Russell for wrist restraints; (5) failed to provide sufficient observations and surveillance of Mr. Smith; (6) failed to recognize that Mr. Smith’s Quinton catheter had been removed while recording Mr. Smith’s vital signs; (7) failed to timely discover the removal of Mr. Smith’s Quinton catheter; and (8) either failed to establish a physiologic monitoring system and set the appropriate alarm limits on the monitoring system or failed to monitor and document the alarms from the monitoring system. These statements, all contained within the four corners of Nurse Hayman’s report, are sufficient to inform the Hospital of the specific conduct by Nurse Hammonds that the Smiths have called into question and provide a basis for the trial court to conclude that the claim has merit. See Bowie Mem’l, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 879. The trial court did not abuse its discretion in finding that Nurse Hayman’s report and supplemental report sufficiently address duty and alleged breach of duty as to Nurse Hammonds.

C. Duty and Alleged Breach by Nurse Gill

The Hospital next contends Nurse Hayman’s report and supplemental report are insufficient because they do not adequately describe the standard of care applicable to Nurse Gill or how Nurse Gill allegedly breached the standard of care. Relevant portions of Nurse Hayman’s report provide:

Nurse Gill was responsible for providing reasonable and prudent nursing diagnosis, assessment, care and treatment for Mr. Smith’s post-operative conditions and well-being in the [Hospital] ICU, and this responsibility included careful and frequent monitoring of his physical and mental conditions, the plan of care from multiple consultants, and the delivery of ongoing intensive nursing care in the ICU and interventions as prescribed by attending and consulting physicians as well as reasonable nursing practices.
Nurse Gill failed to perform sufficient surveillance to discover the removal of the IJ catheter in time to prevent Mr. Smith’s hemorrhagic arrest. A reasonably prudent critical care nurse, should have known that continuous bleeding for approximately 30 — 45 minutes would lead to hemorrhagic cardiac arrest. Therefore, it is reasonable to conclude, in reasonable nursing probability, that Defendant Gill failed to see and assess Mr. Smith for at least 30 minutes prior to his arrest. The hospital ICU records indicate that Gill either failed to properly observe Mr. Smith, or he did not accurately and completely record his nursing actions in the hospital record, and both such failures would be a violation of the applicable standard of nursing care for Gill.
Defendant Gill failed to recognize, intervene in, or document and report any such alarm conditions for Mr. Smith at that time. Further, Gill had an obligation to be in audible or visual proximity to promptly and adequately respond to any such clinical or physiological alarm conditions.
Using the physiologic monitoring system, Nurse Gill should have established and monitored clinical alarms/limits based on [Mr. Smith’s] condition.... All central venous lines or catheters, like the left internal jugular catheter, should have been transduced to the physiological monitoring system such that the monitoring system would alarm when a central line became disconnected.

Furthermore, Nurse Hayman’s supplemental report states that the standard of care applicable to Nurse Gill requires him to have basic knowledge of all medications he administers to a patient, including the potential side effect of the medications to assess, from a nursing perspective, “decreased levels of consciousness, disorientation, and/or sedation in patients” similar to Mr. Smith, and to “utilize wrist restraints in the care of patients, including Mr. Smith, who demonstrate a decreased level of consciousness, disorientation, and/or sedation in order to prevent the patient from causing injury to him[self|.” Nurse Hay-man’s supplemental report states that Nurse Gill failed to appreciate the potential side effects of simultaneous doses of morphine sulphate and hydrocodone, failed to assess, from a nursing perspective, Mr. Smith’s resulting neurological impairment and decreased levels of consciousness, disorientation, and/or sedation, and failed to utilize wrist restraints to prevent Mr. Smith from causing injury to himself.

Nurse Hayman’s report and supplemental report adequately describe Nurse Gill’s duties and alleged breaches of those duties. The report and supplemental report provide that Nurse Gill: (1) had a duty to monitor Mr. Smith’s post-operative mental and physical conditions; (2) failed to, from a nursing perspective, assess or appreciate Mr. Smith’s altered level of consciousness; (3) failed to use bilateral soft wrist restraints or obtain orders from Dr. Bolton or Dr. Russell for wrist restraints; (4) failed to provide sufficient surveillance of Mr. Smith; (5) failed to timely discover the removal of Mr. Smith’s Quinton catheter; and (6) failed to establish or monitor and document a physiologic monitoring system with the appropriate alarm limits. These statements, all contained within the four corners of Nurse Hayman’s reports, are sufficient to inform the Hospital of the specific conduct by Nurse Gill that the Smiths have called into question and provide a basis for the trial court to conclude that the Smiths’ claim has merit. See Bowie Mem’l, 79 S.W.3d at 52; Palacios, 46 S.W.3d at 879. The trial court acted within its discretion in finding that Nurse Hayman’s report and supplemental report sufficiently address duty and alleged breach of duty as to Nurse Gill.

D. Causation

Finally, the Hospital argues the Smiths’ expert reports are insufficient because they do not sufficiently describe how the alleged breaches of the standard of care by the Hospital’s three nurse-employees caused any harm to Mr. Smith.

Relevant portions of Dr. Halkos’s report provide:

It is my opinion that each of the above-described failures of Dr. Bolton, Dr. Russell, Dr. Suominen, PA Dizney, Nurse McElravy, Nurse Hammonds, and Nurse Gill to meet the reasonable, prudent, and accepted standards of medical, nursing and health care in the diagnosis, assessment, care and treatment of [Mr.] Smith’s post-operative and clinical conditions, separately and collectively, probably caused Mr. Smith to experience a worsening of his physical and mental conditions leading to his pulling out the Quinton catheter resulting in significant and severe bleeding that led to his hemorrhagic cardiopulmonary arrest with pulseless electrical activity, resuscitation, additional deterioration, and his death....
Dr. Bolton and Dr. Russell’s failures to be notified [by Nurse McElravy] of Mr. Smith’s severe abnormal anticoagulation condition, as demonstrated by his incalculable and undetermined INR as of July 4, 2006, due to his abnormally high protime (greater than 120 seconds), allowed his excessive anticoagulation condition to continue unrecognized and uncorrected.
If Dr. Suominen, PA Dizney or Nurse McElravy had properly evaluated Mr. Smith’s conditions and notified Dr. Bolton and Dr. Russell of such conditions, then in all probability, Mr. Smith’s state of excessive anticoagulation would have been recognized and corrected because the applicable standards of medical care for Dr. Bolton and Dr. Russell would have required them to take such action under the circumstances. Unfortunately, Mr. Smith’s state of excessive anti-coagulation continued and the administration of large doses of narcotic pain medications administered by Nurse Hammonds to Mr. Smith on the evening of July 4, 2006, in all probability led to disorientation and neurological impairment in Mr. Smith such that he was able to self-remove the left internal jugular Quinton catheter causing massive hemorrhage leading to exsanguinating cardiopulmonary arrest. Although the sequence of events leading up to Mr. Smith’s hemorrhagic arrest is not accurately or completely documented in the [Hospital] medical record, it is likely that Mr. Smith’s neurological impairment, caused by the large doses of narcotic pain medications for the above-discussed reasons, allowed him to avoid suffering the significant pain of self-removal of the Quinton catheter from his neck and not be alarmed by the subsequent massive hemorrhage he experienced and summon the [Hospital] nursing staff for help.
Dr. Suominen’s failure to adequately secure the Quinton catheter to Mr. Smith’s neck and Nurse McElravy’s failure to cause to be ordered!] soft wrist restraints in the setting of Mr. Smith’s altered level of consciousness allowed this series of events to occur where Mr. Smith was able to pull out the Quinton catheter and experience massive bleeding. If Dr. Suominen had adequately secured the Quinton catheter in Mr. Smith’s neck and if Nurse McElravy had caused to be ordered[] soft wrist restraints in the setting of Mr. Smith’s altered level of consciousness this series of events where Mr. Smith was able to pull out the Quinton catheter and experience massive bleeding in all lilklihood [sic] would not have occurred and would not have progressed to cardiopulmonary arrest.
Nurses Hammondsf] and Gill’s failures to properly and adequately monitor Mr. Smith’s above-described activities and conditions resulted in their failures to timely and properly recognize his removal of the Quinton catheter and the bleeding from the catheter site before he experienced hemorrhagic cardiopulmonary arrest.... Nurses Hammonds and Gill failed to closely monitor Mr. Smith’s conditions for a period of at least 80 to 45 minutes before Hammonds[’s] discovery of Mr. Smith’s hemorrhagic arrest. If Nurses Hammonds and Gill had timely discovered Mr. Smith’s self-removal of the Quinton catheter within 30 to 45 minutes before arrest, and implemented proper interventional procedures, it is likely that Mr. Smith’s significant bleeding condition could have been stopped and would not have progressed to cardiopulmonary arrest. Although Mr. Smith’s clinical condition had a mortality of about twenty percent prior to the arrest, the above-discussed failures of Dr. Bolton, Dr. Russell, Dr. Suominen, PA Dizney, McElravy, Hammonds, and Gill probably led to the arrest and the sequelae that probably ensued and in reasonable probability led to his progressive weakness, increasing renal dysfunction, and multi-system organ failure and his death.

These statements, all contained within the four corners of Dr. Halkos’s report, sufficiently link Dr. Halkos’s causation opinions to the facts and adequately describe the chain of events allegedly leading to Mr. Smith’s death. See Patel v. Williams, 237 S.W.3d 901, 905-06 (Tex.App.-Houston [14th Dist.] 2007, no pet.) (holding expert report sufficiently set forth causation when it presented a chain of events beginning with a contraindicated prescription and ending with the patient’s death). The trial court acted within its discretion in finding that Dr. Halkos’s report sufficiently address the element of causation.

We overrule the Hospital’s sole issue.

VII. Conclusion

Having overruled the Hospital’s sole issue, we affirm the trial court’s order.

      . The trial court stated, "While [Nurse Hay-man’s report] was deficient in part, I find that the Halkos report was sufficient to create a basis for asserting a claim that fairly put the Hospital on notice of the type of claims that are being asserted against it by and through the nurses.” The trial court also stated that its partial grant of the Hospital’s objection to Nurse Hayman’s report is ’’kind of irrelevant because I find that it’s [otherwise] sufficient.”

      . For example, the Hospital argues Dr. Hal-kos's report states that Nurse McElravy "should have properly monitored anticoagulant therapy for Mr. Smith” but does not explain how Nurse McElravy improperly monitored anticoagulant therapy or how Nurse McElravy should have monitored it and does not state how McElravy was negligent in not having information about "critically abnormal PT ... results and lack of calculable INR” as alleged in the report.

      . The Hospital also argues that Nurse Hay-man is not qualified to render causation opinions. We need not address this argument, however, because Dr. Halkos's report, without reference to Nurse Hayman's report, sufficiently addresses the causation element in the Smiths’ claim against the Hospital. See Tex. R.App. P. 47.1.


source: Caselaw Access Project

author: ADELE HEDGES, Chief Justice. CHARLES W. SEYMORE, Justice,

license: Public Domain

text:
    In re Steven Tuan PHAM. Steven Tuan Pham, Smith & Garg, L.L.C., and Sarita Garg., Appellants, v. Shelly Letney, Appellee.
    Nos. 14-09-00387-CV, 14-08-01153-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    May 27, 2010.

      Kevin T. Cloves, Houston, for relator.
    Timothy A. Hootman, Lance Christopher Kassab, Houston, James R. Jones, Spring, for real party in interest.
    Panel consists of Chief Justice HEDGES and Justices SEYMORE and SULLIVAN.
   SUBSTITUTE MAJORITY OPINION

ADELE HEDGES, Chief Justice.

We overrule Shelly Letney’s Motion for Rehearing, withdraw our prior opinion issued on March 4, 2010, and substitute this opinion in its place.

In this matter, we have consolidated a petition for writ of mandamus with an interlocutory appeal raising the same issues in the same case. In these proceedings, appellant/relator Steven Tuan Pham challenges the trial courts denial of a motion to compel arbitration with appel-lee/real-party-in-interest Shelly Letney. Letney sued Pham for legal malpractice, and Pham moved to compel arbitration based on an arbitration clause in a legal services contract. Pham now attacks the trial courts holding that the arbitration clause was invalid or unenforceable because either (1) the lawsuit sought recovery for personal injuries and thus was exempted from arbitration; (2) the Federal Arbitration Act (FAA), identified in the agreement as governing any arbitration thereunder, was inapplicable to the facts of this case; (3) the arbitration agreement was unconscionable; or (4) the arbitration agreement was voidable as being against the Disciplinary Rules of Professional Conduct. Appellants Smith & Garg, L.L.C. and Sarita Garg filed a notice of appeal but then moved to have their appeal dismissed, a motion which we granted, and did not join the petition for writ of mandamus. We dismiss the interlocutory appeal and conditionally grant the writ of mandamus.

I. Background

Shelly Letney allegedly suffered personal injuries in an automobile accident. She hired the law firm of Smith & Garg, L.L.C. to pursue her claims against the other driver involved in the collision. Sarita Garg is a named partner in the firm. Steven Pham, an associate with the firm, was at least partially responsible for handling Letney’s case. The attorney-client agreement between Letney and Smith & Garg contained the following arbitration provision:

ARBITRATION

Any and all disputes, controversies, claims or demands arising out of or relating to this Agreement or any provision hereof, whether in contract, tort or otherwise, at law or in equity, for damages or any other relief, shall be resolved by binding arbitration pursuant to the Federal Arbitration Act in accordance with the Commercial Arbitration Rules then in effect with the American Arbitration Association. Any such arbitration proceeding shall be conducted in Harris County, Texas pursuant to the substantive federal laws established by the Federal Arbitration Act. Any party to any ward [sic] rendered in such arbitration proceeding may seek a judgment upon the award and that judgment may be entered by any federal or state court in Montgomery County, Texas [sic] having jurisdiction.

In the present action, Letney alleges legal malpractice and other claims against Pham, Garg, and Smith & Garg, L.L.C., based on a failure to timely file suit for Letneys alleged personal injuries. The defendants filed a motion to compel arbitration and an amended motion based on the arbitration provision in the contract. Letney filed a response and a supplemental response contending that (1) her claims are exempt from arbitration because she seeks recovery for personal injuries, (2) the FAA is inapplicable because the contract at issue did not affect interstate commerce, (3) the arbitration clause is unconscionable, and (4) the arbitration clause violates the Disciplinary Rules of Professional Conduct.

Attached to her response, Letney also filed an affidavit in which she averred, in addition to other things relating to the underlying matter, as follows:

In making my decision to hire Defendants, I relied on various representations regarding the firms diligence, experience, and expertise as Usted on the firms website. [¶] At all times prior to and during my representation, Defendants held themselves out to be expert lawyers in the field of personal injury and promised to file suit ... so that I would receive the maximum allowable damages- When I signed the Contract I was not represented by an attorney. I did not have an attorney to advise me regarding the legal aspects of all terms and conditions in the Contract. No one from Smith & Garg advised me or told me about the arbitration clause in the Contract or what it meant. I have no legal training and do not know what arbitration is or what it means to arbitrate. No one from Smith & Garg advised me or told me that by signing the Contract I could be waiving my constitutional rights to a jury trial.
No one from Smith & Garg went over [the Contract] with me[,] informed me about the pros, cons, advantages or disadvantages, effects and ramifications of the arbitration clause[, or] informed me about my rights and duties under the arbitration clause. I did not obtain advice from outside counsel, or any counsel regarding the arbitration clause prior to signing [the Contract] and no one from Smith & Garg ever advised me to obtain legal advice from outside counsel regarding the arbitration clause.
I trusted Defendants to advise me on all matters regarding Defendants representation of me. Defendants never advised me in any manner whatsoever regarding the arbitration clause. I was unaware that [the Contract] even contained an arbitration clause. Lastly, I did not intend to agree to an arbitration clause.

The trial court denied the motion to compel without stating the basis for the holding.

All of the defendants/appellants filed a joint notice of appeal in the trial court; however, after the case was assigned to this court, appellants Smith & Garg, L.L.C. and Sarita Garg moved to have their appeals dismissed. We granted that motion. These same parties also did not join the petition for writ of mandamus filed by Pham; thus, Smith & Garg and Sarita Garg are no longer parties to the proceedings in this court.

II. Mandamus or Appeal?

We begin by determining whether the issues brought in these proceedings are properly raised in a direct interlocutory appeal or in a petition for writ of mandamus. It is well-settled that when a trial court denies arbitration under the Texas Arbitration Act (“TAA”), the order is subject to interlocutory appeal, whereas when a court denies arbitration under the FAA, relief must be sought in a petition for writ of mandamus. See, e.g., Wachovia Securities, L.L.C. v. Emery, 186 S.W.3d 107, 111-12 (Tex.App.-Houston [1st Dist.] 2005, orig. proceeding) (citing Tex. Civ. Prac. & Rem.Code § 171.098(a)(1) and EZ Pawn Carp. v. Mandas, 934 S.W.2d 87, 91 (Tex.1996), et al). Although the motion to compel was somewhat ambiguous in the present case, the only basis for arbitration cited — the arbitration provision in the contract — explicitly designated arbitration pursuant to the FAA. Consequently, we interpret the motion to compel as seeking only arbitration under the FAA; thus, mandamus, and not interlocutory appeal, was the correct procedural vehicle for the relief Pham seeks. See In re Olshan Found. Repair Co., 277 S.W.3d 124, 130-132 (Tex.App.-Dallas 2009, orig. proceeding) (emphasizing parties’ right to specify the rules pursuant to which arbitration shall occur); In re Kellogg Brown & Root, 80 S.W.3d 611, 617 (Tex.App.-Houston [1st Dist.] 2002, orig. proceeding) (same). Accordingly, we dismiss Pham’s interlocutory appeal and consider the merits of his petition for writ of mandamus. See Wachovia Securities, 186 S.W.3d at 112.

III. Standards of Review

A party seeking to compel arbitration must establish the existence of an arbitration agreement and show that the claims raised in the particular lawsuit fall within the scope of that agreement. In re Oakwood Mobile Homes, Inc., 987 S.W.2d 571, 573 (Tex.1999) (orig. proceeding). If one of the parties denies that there is a binding arbitration agreement, the trial court may decide whether to compel arbitration on the basis of uncontroverted affidavits, pleadings, discovery, and stipulations. Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 269 (Tex.1992) (orig. proceeding). We utilize an abuse of discretion standard in assessing whether a party is entitled to mandamus relief for a trial court’s refusal to compel arbitration; however, we consider the trial court’s legal determinations — such as whether an arbitration agreement is legally enforceable— de novo. In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex.2009) (orig., proceeding). If an existing agreement to arbitrate encompasses the claims in question, and the party opposing arbitration fails to prove any defense to enforcement, the trial court has no discretion: it must compel arbitration. In re FirstMerit Bank, N.A., 52 S.W.3d 749, 753-54 (Tex.2001) (orig., proceeding). On mandamus review of factual issues, a trial court can be held to have abused its discretion only if the party requesting mandamus relief establishes that the trial court reasonably could have reached only one decision, a decision other than that actually reached by the court. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992) (orig. proceeding). A trial court abuses its discretion if it clearly fails to analyze the law correctly or correctly apply the law to the facts. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex.2005) (orig. proceeding).

IV. Relator’s Arguments

In her affidavit attached to her responses to the motion to compel, Letney acknowledged that she signed the attorney-client representation agreement containing an arbitration provision. Further, she does not contest that the allegations in the present case are within the scope of that provision. In her responses to the motion, however, she raised several defenses against enforcement of the provision. The trial court denied the motion to compel, apparently determining that the provision was invalid or otherwise unenforceable based upon one or more of the grounds contained in Letney’s responses. In the petition for writ of mandamus, Pham challenges the trial courts implied holding that the arbitration agreement was invalid or unenforceable on the basis that (1) Let-ney’s claims were for personal injuries and thus exempted from arbitration, (2) the FAA was inapplicable to the case, (3) the arbitration clause was unconscionable, or (4) the arbitration clause was voidable as being against the Rules of Professional Conduct. If any one of these grounds supports the denial of arbitration, we must deny mandamus. We will consider each issue in turn.

A. Personal Injury Exemption

Letney’s primary argument in response to the motion to compel was based on TAA section 171.002, which prohibits arbitration agreements in respect to claims for personal injuries unless each party to the agreement receives advice of counsel and the agreement is in writing and signed by each party and each party’s attorney. Tex. Civ. Prac. & Rem.Code § 171.002(a)(3), (c). Letney established that she was not represented by counsel when she signed the contract and, consequently, no attorney representing her signed the contract. On that basis, Letney contends that if her claims are deemed to be personal injury claims, then arbitration cannot be compelled under section 171.002. Even assuming that the TAA section in question can apply to an arbitration agreement selecting FAA procedures, it would not apply in the circumstances presented by this case because Letney has alleged legal malpractice in this lawsuit and not personal injury.

There is a split of authority among the Texas courts of appeals regarding whether legal malpractice claims constitute personal injury claims for purposes of section 171.002. Several courts, including this one, have held, as we do here, that legal malpractice claims do not constitute personal injury claims for purposes of section 171.002. See Chambers v. O’Quinn, 305 S.W.3d 141, 150-51 (Tex.App.-Houston [1st Dist.] 2009, no pet. h.); Taylor v. Wilson, 180 S.W.3d 627, 630-31 (Tex.App.-Houston [14th Dist.] 2005, pet. denied); Miller v. Brewer, 118 S.W.3d 896, 899 (Tex.App.Amarillo 2003, no pet.); In re Hartigan, 107 S.W.3d 684, 690-91 (Tex.App.-San Antonio 2003, pet. denied). Only one court, the Corpus Christi Court, has held to the contrary. In re Godt, 28 S.W.3d 732, 738-39 (Tex.App.-Corpus Christi 2000, no pet.). As we explained in Taylor, the In re Godt court incorrectly interpreted a Texas Supreme Court case, Willis v. Maverick, 760 S.W.2d 642 (Tex.1988). Taylor, 180 S.W.3d at 630. In Willis, the supreme court held that a legal malpractice claim was in the nature of a tort for limitations purposes. 760 S.W.2d at 644. The In re Godt court incorrectly deduced from this holding, as well as from other erroneous courts of appeals’ interpretations of Willis, that legal malpractice is a personal injury claim. Taylor, 180 S.W.3d at 630. We again decline to follow In re Godt, and instead follow our own precedent set forth in Taylor.

Letney attempts to distinguish Taylor, as well as Miller and In re Hartigan, by pointing out that the underlying matter in the present case was for personal injuries, ie., injuries she sustained in an automobile accident, whereas the underlying matters in the other cited cases were not for personal injuries. Indeed, in Taylor, we pointed out that In re Godt was factually distinguishable because it (In re Godt) involved an underlying claim of personal injury (specifically medical malpractice), and the underlying claim in Taylor was not for personal injury. Taylor, 180 S.W.3d at 630. The Amarillo court distinguished In re Godt in the same manner in Miller. Miller, 118 S.W.3d at 899. However, we agree with the First Court of Appeals’ recent analysis in Chambers v. O’Quinn, wherein it explained that a legal malpractice cause of action is one for economic loss and not personal injury caused by the defendant, and the fact that the case on which the malpractice action was based was one for personal injury does not transform the malpractice action into an action alleging personal injury. 305 S.W.3d 141, 150-51. Because Letney’s claim in the present case is for legal malpractice and not personal injury, we find no merit in her argument based on application of TAA section 171.002. The trial court erred if it refused to compel arbitration on the basis of section 171.002.

B. FAA Applicability

Letney further argued in her responses that arbitration pursuant to the FAA would be improper, despite the selection of FAA arbitration in the arbitration clause, because the contract in question, for legal services in Texas concerning a Texas-based claim, had no impact on interstate commerce. However, this court, along with a number of other Texas courts of appeals, have already rejected this argument, holding that when parties agree to arbitrate under the FAA, that agreement will control the arbitration irrespective of whether interstate commerce is involved in or impacted by the agreement. See, e.g., In re Chestnut, 300 S.W.3d 386, 398 (Tex.App.-Dallas 2009, orig. proceeding); In re ReadyOne Indus., Inc., 294 S.W.3d 764, 769 (Tex.App.-El Paso 2009, orig. proceeding); Ernst & Young L.L.P. v. Martin, 278 S.W.3d 497, 499 (Tex.App.-Houston [14th Dist.] 2009, no pet. h.); In re Jim Walter Homes, Inc., 207 S.W.3d 888, 896 (Tex.App.-Houston [14th Dist.] 2006, orig. proceeding); In re Kellogg Brown & Root, 80 S.W.3d 611, 617 (Tex.App.-Houston [1st Dist.] 2002, orig. proceeding). We are bound by our prior precedent, as is the trial court. See Nabelek v. Bradford, 228 S.W.3d 715, 720 (Tex.App.-Houston [14th Dist.] 2006, writ denied). Here, the arbitration provision in question clearly specified arbitration under the FAA; accordingly, the trial court erred if it denied the motion to compel because the transaction in question had no impact on interstate commerce.

C. Unconscionability

Letney additionally argued in her response that the arbitration provision was unconscionable and therefore invalid. In her argument to the trial court, Letney relied heavily on Chief Justice Hardber-ger’s dissent in Henry v. Gonzalez, 18 S.W.3d 684 (Tex.App.-San Antonio 2000, pet. dism’d by agr.). In Henry, Justice Hardberger maintained that “special public policy considerations are implicated when an attorney imposes an arbitration provision on his or her client.” 18 S.W.3d at 692 (Hardberger, C.J., dissenting). He further detailed the advantages an attorney typically holds over a prospective client during contract negotiations, including a greater base of knowledge and greater bargaining power. Id. at 693. He then argued that arbitration clauses between attorney and client should be held against public policy in the absence of additional protections for the client. Id. at 693-94. While we are not unsympathetic to Justice Hardberger’s concerns, or the concerns expressed by Justice Seymore in his dissent in the present case, we believe that such policy arguments are better directed to the legislature. Indeed, the legislature has already considered limitations on arbitration agreements in certain contexts, as demonstrated by section 171.002 of the Texas Civil Practice and Remedies Code, and has yet to see fit to include attorney-client contracts among those requiring restrictions. Moreover, this court has already addressed and rejected the notion that arbitration provisions in attorney-client contracts are inherently unconscionable without additional restrictions. See Labidi v. Sydow, 287 S.W.3d 922, 927-28 (Tex.App.-Houston [14th Dist.] 2009, orig. proceeding).

In her briefing to this court, Letney greatly expanded her unconscionability argument. She premised her additional contentions on the notion that a fiduciary relationship can develop between an attorney and a prospective client prior to their entering into a formal contract for legal services, citing Restatement (Second) of Agency § 390 cmt. e (1958) (“[i]f ... in the case of attorney and client, the creation of the relation involves peculiar trust and confidence, with reliance by the principal upon fair dealing by the agent, it may be found that a fiduciary relation exists prior to the employment and, if so, the agent is under a duty to deal fairly with the principal in arranging the terms of the employment.”), et al. Letney contends that on such basis, it may be incumbent upon the attorney to ensure that the prospective client is fully informed and advised regarding the nature and implications of any arbitration clause contained in the formal contract.

The problem for Letney, however, is not that it is impossible for a special, fiduciary, or attorney-client relationship to arise pri- or to entering a formal agreement but that she has not brought forth evidence that such occurred here. See In re FirstMerit Bank, N.A., 52 S.W.3d 749, 756 (Tex.2001) (orig. proceeding) (“[T]he burden of proving a defense to arbitration is on the party opposing arbitration.”). The only evidence Letney attached to her response was a copy of the contract and her own affidavit. In her affidavit, Letney stated that in making her decision to hire appellants she relied on various representations made on the firm’s website regarding the firm’s qualities. She acknowledged that no one from Smith & Garg advised her or told her about the arbitration clause or its implications. She said that she “did not obtain advice from outside counsel, or any counsel regarding the arbitration clause prior to signing” the contract. Although Letney states generally that appellants “held themselves out to be expert lawyers in the field of personal injury” and that she trusted them to advise her on all matters regarding their representation of her, she does not identify any negotiations, discussions, or counseling that occurred prior to her signing of the contract that could have given rise to a special relationship between the parties. Indeed, Letney’s affidavit establishes nothing more than that she read statements on the firm’s website and then signed the contract. The reading of statements on a website is not by itself evidence of the development of a special relationship. See Barron Partners, L.P. v. LAB 123, Inc., 593 F.Supp.2d 667, 671 (S.D.N.Y.2009). Letney’s statements that she relied on and trusted the defendants are conclusory in nature and likewise do not, by themselves, constitute evidence that a special relationship had developed. Crim Truck & Tractor Co. v. Navistar Int’l Transp. Corp., 823 S.W.2d 591, 595 (Tex.1992) (“[M]ere subjective trust alone is not enough to transform arms-length dealing into a fiduciary relationship.”). In short, Letney failed to carry her burden of proving her defense of unconseionability.

Lastly, Letney cites to an opinion rendered by the Texas Ethics Commission in which the Commission suggested that it would be permissible under the Texas Disciplinary Rules of Professional Conduct to include an arbitration clause in an attorney-client contract only if the client was made aware of the advantages and disadvantages of arbitration and had sufficient information to make an informed decision as to whether to include the clause. See Op. Tex. Ethics Comm’n No. 586 (2008). Letney contends that this opinion supports the notion that for an arbitration clause in an attorney-client contract to be considered valid, an attorney must make sure that the client is fully informed regarding the clause’s implications. However, in La-bidi, we considered a substantially similar argument based on the exact same ethics opinion. 287 S.W.3d at 929. We concluded in Labidi that Opinion No. 586 did not impose any restrictions on attorney-client arbitration clauses because (1) such opinions are advisory at best, (2) the commission expressly declined in the opinion to opine on the substantive law concerning arbitration clause enforceability, and (3) substantive law does not include any such restrictions. Id. Following Labidi, we decline to impose a requirement that attorneys must in all cases fully inform prospective clients regarding the implications of an arbitration clause in an attorney-client contract. This argument is best preserved for the legislature.

For the foregoing reasons, the trial court erred if it refused to compel arbitration based on unconscionability of the arbitration agreement.

D. Disciplinary Rules

Letney’s final argument in response to the motion to compel was based on Texas Disciplinary Rule of Professional Conduct 1.08(g), which provides that “[a] lawyer shall not make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless permitted by law and the client is independently represented in making the agreement. ...” Tex.R. Prof. Cond. 1.08(g), reprinted in Tex. Gov’t Code Ann. Tit. 2, subtit. G app. A (Vernon 1998). Citing this rule, Letney asserted that the arbitration provision at issue in this case improperly limited Pham’s potential liability to her as a client. However, an agreement to arbitrate does not, in fact, limit a party’s liability; it merely denominates a procedure for determining that liability. See, e.g., Chambers, 305 S.W.3d 141, 150-51; In re Hartigan, 107 S.W.3d at 689. Accordingly, Letney’s argument based on section 1.08(g) is without merit, and the trial court erred if it denied arbitration on that basis.

V. Conclusion

None of the arguments Letney made in response to the motion to compel arbitration have merit, and there is no other basis for affirming the trial court’s order denying the motion. Consequently, we hold that the trial court abused its discretion in denying the motion. We therefore dismiss the interlocutory appeal and conditionally grant the writ of mandamus.

SEYMORE, J. dissenting.

CHARLES W. SEYMORE, Justice,

dissenting.

In consideration of the unique relationship between attorney and client, I write this dissenting opinion to express my concern about mandatory arbitration provisions in attorney-client agreements.

I have no disagreement with the majority’s analysis and disposition of all issues with the exception of Shelly Letney’s claim that the method or means of inducing her signature on the agreement renders enforcement procedurally unconscionable. I adopt former Fourth Court of Appeals Chief Justice Phil Hardberger’s concern that special public-policy considerations are implicated when an attorney imposes an arbitration provision on his or her client. See Henry v. Gonzalez, 18 S.W.3d 684, 692 (Tex.App.-San Antonio 2000, pet. dism’d) (Hardberger, C.J., dissenting). Accordingly, I disagree with the majority’s decision to “decline to impose a requirement that attorneys must, in all cases, fully inform prospective clients regarding implications of an arbitration clause in an attorney-client contract.”

Whatever public policy may be served by enforcing arbitration agreements is more than offset by the public policy of insuring that consumers of legal services have protection from attorneys who might take advantage of their clients. Shelly Letney, a personal-injury claimant, is representative of the average consumer of legal services. She should be afforded the expectation that an attorney is obligated to fully reveal and explain potential conflicts of interests at the inception of the relationship. Moreover, the attorney should offer the prospective client an opportunity to seek advice from another source before signing an attorney-client agreement that contains language potentially detrimental to the client’s interests if the client later finds it appropriate or necessary to pursue the attorney for malpractice or other misconduct.

Under the Texas Disciplinary Rules of Professional Conduct, “A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” Tex. Disciplinary R. Prof'l Conduct 1.03(b), reprinted, in Tex. Gov’t Code Ann., tit. 2, subtit. G app. A (Vernon 2005) (Tex. State Bar R. art. X, § 9). The Supreme Court of Texas Professional Ethics Committee agrees that lawyers should be allowed to insert arbitration clauses in their client contracts as long as “(1) the client is aware of the significant advantages and disadvantages of arbitration and has sufficient information to permit the client to make an informed decision about whether to agree to the arbitration provision, and (2) the arbitration provision does not limit the lawyer’s liability for malpractice.” See Tex. Comm. On Profl Ethics, Op. 586 (2008).

Notwithstanding the application of settled contract law and public policy favoring alternate dispute resolution, many respected jurists and lawyers oppose arbitration because it is not cost effective, disgorges unwary consumers of the right to a jury trial, and eliminates appellate review for errors of law. I remain a proponent of arbitration. However, when the legislature and rule-making authority in the legal profession fail to protect consumers of legal services, I believe the courts have an obligation to act because public perception of the legal profession’s ability to self-police is not favorable.

Based on Shelly Letney’s averment that she was unaware of the arbitration agreement and her sworn statement that petitioner did not fully explain the terms, I would hold the trial court did not abuse its discretion by denying the petitioner’s motion to compel arbitration. Accordingly, I respectfully dissent.

      . Because the parties did not raise and do not brief the question of whether section 171.002 can apply to an arbitration agreement that selects the FAA, we will instead address the issue raised and briefed.

      . Letney also cites Restatement (Third) of Agency § 15 cmt. b (2000) for the proposition that mere consultation between an attorney and a prospective client creates a fiduciary relationship. However, neither this section of the Restatement nor the referenced comment either states or directly supports the proposition for which they are cited.


author: Opinion by Justice YÁÑEZ.

text:
    PORT ELEVATOR-BROWNSVILLE, L.L.C., Appellant, v. Rogelio CASADOS and Rafaela Casados, Individually and as Representative of the Estate of their Son, Rafael Casados, Appellees.
    No. 13-08-00150-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    May 27, 2010.

      Thomas F. Nye, Gault Nye & Quintana, Corpus Christi, Adriana H. Cardenas, Mike Mills, Atlas & Hall, McAllen, Mary A. Kenney, Pete M. Schenkkan, Graves, Dougherty, Hearon & Moody, Austin, for Appellant.
    Michael A. Caddell, Craig C. Marchian-do, Cynthia B. Chapman & Dana B. Levy, Caddell, Caddell & Chapman, Richard D. Daly, Gardere Wynne Sewell & Riggs, Frank Costilla, Brownsville, for Appellees.
    Before Chief Justice VALDEZ and Justices YÁÑEZ and VELA.
   OPINION

Opinion by Justice YÁÑEZ.

By a single issue, appellant, Port Elevator-Brownsville, L.L.C. (“Port Elevator”), contends the trial court erred in denying its motion for summary judgment and in granting the cross-motion for partial summary judgment filed by appellees, Rogelio and Rafaela Casados. Specifically, Port Elevator contends that appellees’ claims against it are barred by the exclusive remedy provision of the Texas Workers’ Compensation Act (“TWCA”). We affirm.

I. Background

Staff Force, Inc. (“Staff Force”) is a temporary employment agency that hires temporary workers and assigns them to work for its client companies. Rafael Ca-sados was hired by Staff Force and assigned to work at Port Elevator’s grain storage facility at the Port of Brownsville. Shortly after his assignment to Port Elevator’s facility, Casados died when he was buried beneath twenty feet of grain.

Appellees sued Port Elevator, Staff Force, and others for wrongful death. Port Elevator filed a traditional and no-evidence motion for summary judgment. In its traditional motion, Port Elevator argued that: (1) Casados was Port Elevator’s employee; (2) at the time of Casa-dos’s death, Port Elevator was a subscriber to workers’ compensation insurance; and (3) appellees’ claims are therefore barred by the exclusive remedy provision of the workers’ compensation statute. Port Elevator also argued that appellees are barred from recovering exemplary damages because they are not “within the defined class of beneficiaries who may recover exemplary damages” under the statute. As summary judgment evidence, Port Elevator attached: (1) the affidavit of its general manager, Craig Elkins; (2) the declarations page of its insurance policy; and (3) excerpts from the deposition testimony of its employee, Javier Saldivar. In its second supplemental motion, Port Elevator provided a complete copy of its insurance policy. Port Elevator also argued that appellees’ claims were barred because Staff Force’s workers’ compensation carrier paid all available benefits.

In the no-evidence section of its motion, Port Elevator argued that the Texas Department of Insurance, Division of Workers’ Compensation has exclusive jurisdiction to determine compensability and there is “no evidence that [appellees] have exhausted their administrative remedies as required.”

Appellees filed a response to Port Elevator’s motion and a cross-motion for partial summary judgment on Port Elevator’s affirmative defenses. In their traditional and no-evidence motion, appellees argued that as a temporary worker, Casados was not covered under Port Elevator’s workers’ compensation policy. Specifically, ap-pellees argued that (1) the exclusive remedy provision is an affirmative defense for which Port Elevator bore the burden of proof, and (2) Port Elevator had no evidence that it paid a workers’ compensation insurance premium covering Casados and other temporary employees. Appellees also argued that they were not required to exhaust their administrative remedies because they were not seeking workers’ compensation benefits. As summary judgment evidence, appellees attached: (1) Port Elevator’s responses to appellees’ discovery requests; (2) the deposition testimony of Elkins; (3) the deposition testimony of Veronica Castro, then branch manager of Staff Force’s Brownsville office; (4) a Staff Force work order reflecting Casados’s classification code; (5) Casa-dos’s “First Report of Injury” form; and (6) an affidavit from appellees’ attorney. Appellees filed an “Amended Motion for Partial Summary Judgment,” in which they argued that the exclusive-remedy affirmative defense was not available to Port Elevator because its workers’ compensation policy did not cover the temporary employees it obtained from Staff Force. Appellees also asserted that they were entitled to a no-evidence partial summary judgment because Port Elevator has no evidence that it was a subscriber to a policy that covered Casados. As additional summary judgment evidence, appellees attached: (1) Port Elevator’s second supplemental responses to appellee’s requests for disclosure; and (2) the deposition testimony of Ernest Stokey, a vice president of Texas Mutual Insurance Company, Port Elevator’s workers’ compensation carrier. Appellees and Port Elevator also filed various responses, supplemental responses, and replies, and submitted additional evidence.

The trial court denied Port Elevator’s motion for summary judgment and granted appellees’ amended motion for partial summary judgment. A jury found Port Elevator liable for negligence and awarded appellees and Casados’s estate approximately $2.7 million in damages. The trial court entered judgment on the verdict. Port Elevator filed a motion for reconsideration of the trial court’s rulings on the motions for summary judgment and a motion for judgment notwithstanding the verdict, both of which the trial court denied. This appeal ensued.

II. Standard of Review and Applicable Law

Here, both Port Elevator’s motion for summary judgment and appellees’ amended cross-motion for partial summary judgment were combined “traditional” and “no-evidence” motions. We review the trial court’s grant of summary judgment de novo. ‘When, as here, both parties file a motion for summary judgment with the trial court, and one is granted and one is denied, the reviewing court determines all questions presented and renders the judgment that should have been rendered by the trial court.” When the trial court does not specify the basis for its ruling, it is the appellant’s burden on appeal to show that none of the independent grounds that were asserted in support of summary judgment is sufficient to support the judgment. Thus, when the trial court’s order granting summary judgment does not specify the grounds on which it was granted, we will affirm the summary judgment if any of the advanced theories support the judgment.

As the Texas Supreme Court recently noted,

The purpose of the Texas Workers’ Compensation Act is to provide employees with certainty that their medical bills and lost wages will be covered if they are injured. An employee benefits from workers’ compensation insurance because it saves the time and litigation expense inherent in proving fault in a common law tort claim. But a subscribing employer also receives a benefit because it is then entitled to assert the statutory exclusive remedy defense against the tort claims of its employees for job related injuries.!]

The exclusive remedy provision provides that, “[Recovery of workers’ compensation benefits is the exclusive remedy of an employee covered by workers’ compensation insurance coverage ... for the death of or a work-related injury sustained by the employee.” When a defendant moves for summary judgment based on an affirmative defense, like the exclusive remedies provision of the TWCA, the defendant must conclusively prove each element of the defense as a matter of law. Thus, Port Elevator had the summary judgment burden of proving its exclusive-remedy affirmative defense as a matter of law. The Texas Supreme Court has recognized that temporary employees, like Casados, may have more than one employer for the purposes of the TWCA and its exclusive remedy provision. A borrowed servant is properly covered by the borrowing employer’s workers’ compensation insurance. Here, in order to be entitled to the exclusive-remedy affirmative defense, Port Elevator was required to plead and prove: (1) Casados was its borrowed servant; (2) he was entitled to workers’ compensation benefits; and (8) Port Elevator had workers’ compensation insurance that covered claims asserted by borrowed servants.

III. Discussion

We begin by addressing whether Port Elevator met its burden to establish its exclusive-remedy affirmative defense as a matter of law. In its motion for summary judgment and on appeal, Port Elevator argued that it was entitled to the exclusive-remedy affirmative defense because it established that: (1) Casados was its employee (which is undisputed); and (2) at the time of Casados’s death, it was a subscriber to workers’ compensation insurance. In support of its position, Port Elevator cites Garza v. Exel Logistics, Inc. Port Elevator argues that because “an employer may not split its workforce by providing workers’ compensation insurance to some workers while leaving others without coverage,” all of its employees — including Casados — were covered by its workers’ compensation policy. Essentially, Port Elevator’s position is that if it purchased workers’ compensation insurance for one of its employees, then all of its employees are covered — regardless of whether it intended to cover all of its employees, whether the code classifications in the policy reflect coverage for all employees, and whether it paid premiums for temporary employees like Casados.

In its response and on appeal, appellees contend that Port Elevator was required to establish not only that it was a subscriber to workers’ compensation insurance, but that Casados was an employee covered by Port Elevator’s policy. Thus, the controlling question before the trial court, and now before this Court, is whether Port Elevator indeed could meet its burden by establishing only that (1) Casados was its employee and (2) it was a subscriber to workers’ compensation insurance.

We begin by examining Port Elevator’s argument and summary judgment evidence. Port Elevator submitted the affidavit of Elkins, which stated that: (1) Port Elevator was a subscriber to workers’ compensation insurance, and (2) Casados was Port Elevator’s employee at the time of his death. It also submitted excerpts from the deposition testimony of Saldivar, which shows that: (1) on the day he died, Casados was removing grain from a bulkhead door; and (2) all of Port Elevator’s employees — including its temporary employees — were a “necessary” part of Port Elevator’s grain elevator operations. With respect to the controlling issue, Port Elevator submitted its insurance policy, issued by its carrier, Texas Mutual Insurance Company (“Texas Mutual”). The policy reflects that Port Elevator was a subscriber to workers’ compensation insurance covering its operations in Texas for the relevant policy period. The information page of the policy, which lists the classification codes describing the type of work performed by the employees, lists only two classifications: “clerical office employees” and “grain elevator operation & local managers, drivers.” With regard to the information page, Port Elevator makes two arguments: (1) Casados was included in the category of employees working in support of grain elevator operations; and (2) classification codes do not establish coverage, but merely govern premium calculations.

In support of its argument that an employer may not “split” its workforce by covering some of its employees and not covering others, Port Elevator cites Texas Workers’ Compensation Insurance Fund v. Del Industrial, Inc., Maryland Casualty Co. v. Sullivan, and Texas Employers’ Insurance Ass’n v. Stanton. ,

Appellees respond that the supreme court in Del Industrial also recognized that the case law in this area is dated and noted that “the Texas cases prohibiting ‘split workforces’ do not address staff-leasing relationships, and were decided prior to the Legislature’s passage of the SLSA.” Appellees further argue that Sullivan and Stanton are distinguishable because neither case addresses workers’ compensation in the context of temporary employees.

In Del Industrial, the supreme court held that “the Staff Leasing Services Act does not require a [client] company that purchases workers’ compensation insurance for its employees to pay premiums for employees whom the company leases from a staff leasing company when the staff leasing company declines to purchase coverage for those leased workers.” Thus, in construing the provisions of the SLSA, the court permitted “the practical effect” that only part of the employer’s work force (the direct non-leased-employee part) was covered by workers’ compensation insurance.

Del Industrial is distinguishable from the present case because it involved a “staff-leasing relationship” between a staff-leasing company and its client company pursuant to the SLSA. In the present case, Staff Force is not a staff leasing company within the purview of the SLSA. Thus, although Del Industrial is distinguishable from the facts before us, we recognize that it supports Port Elevator’s position that non-SLSA-governed cases— like the present case — are subject to the general rule “that an employer may not split its workforce by providing workers’ compensation insurance to some workers while leaving others without coverage.”

We next address the evidence presented by appellees. Appellees contend that Port Elevator’s workers’ compensation policy covered only its direct employees, not its temporary employees like Casados. Ap-pellees argue that to establish its exclusive remedy affirmative defense, Port Elevator must show not only that it is a subscriber to workers’ compensation insurance, but that Casados was “an employee covered by workers’ compensation insurance coverage.”

Appellees point to the information page of Port Elevator’s policy, which lists the classification codes of covered employees: “8810” for “clerical office employees” and “8304” for “grain elevator operation & local managers, drivers.” Appellees assert that as a temporary laborer, Casados fit into neither category, and was therefore not covered by the policy. In support, appellees cite the deposition testimony of Elkins, who testified that Casados was a “laborer,” not a “manager,” an “operator,” or “clerical staff.” Appellees also provided Staff Force’s work order assigning Casa-dos to Port Elevator; the work order identifies Casados’s workers’ compensation classification code as “5160.” The classification code “5160” does not appear on the information page of Port Elevator’s insurance policy showing covered employees.

Appellees also rely on the deposition testimony of Stokey, “vice president of premium audit and premium recovery” at Texas Mutual, Port Elevator’s workers’ compensation carrier. Stokey explained that his duties include “securing payroll information from our policyholders to determine what their premiums are due [sic] based on their organization, their activity, as well as their payroll.” Stokey testified, in relevant part, as follows:

Q [by appellees’ counsel]: Do you know whether or not Staff Force employees were included in the calculations of Port Elevator-Brownsville, L.C.’s Workers’ Comp, premiums?
A [Stokey]: Yes, I know.
Q: Were they?
A: No.
Q: Should they have been, in your opinion?
A: No.
Q: Why not?
A: Because from what we — what we’ve seen, that Staff Force has their own Workers’ Compensation policy, and we do not — that would be double charging if we had included any of those employees, and that’s contrary to the labor code of regulations. We can’t—
Q: What regulation?
A: We can’t double charge our policyholders in the State of Texas. You’d have Staff Force being charged for premium and then I’m going to be penalizing our policyholder if we’d have done something like that, and that’s not being good stewards for our policyholder’s premium.
Q: Well, actually what you’d have is each company paying to cover its own employees, isn’t that right?
.... [Objection and discussion]
A: This is not a situation, from my perspective, where someone truly is working for two different companies. I — this is an employee that’s working for one company that’s in a type of business. As I understand, it’s a temporary agency, I believe, Staff Force is; that the normal course of duty is that they go out and work for other clients of that — of Staff Force that need someone to do whatever type of task it is. That doesn’t make them an employee of Port Elevator, especially in lieu of the fact that Staff Force already has their own Workers’ Compensation policy.
Q: Have you analyzed Staff Force’s policy?
A: No.
Q: Okay. So you don’t really know whether or not they have a policy that covers Mr. Casados or not, do you?
[Objection]
A: I haven’t seen it, no.
Q: You’ve been told that?
A: By reliable sources, I think.
Q: Who told you that?
A: It’s consultation with counsel.
Q: Okay. So we’re clear, Port Elevator did not pay a premium that included calculations for the payroll of Staff Force employees for 2003 through 2005, right?
A: That’s correct.
Q: Did Texas Mutual charge any premiums for Staff Force employees — let me restate that. Did Texas Mutual charge Port Elevator any premiums for Workers’ Compensation for Staff Force employees after its end-of-the-year audit in 2002, 2003, 2004, or 2005?
[Objection]
A: No, it did not.
Q: Did any Staff Force employee make a Workers’ Compensation claim under Port Elevator’s policy in 2002?
A: No.
Q: Did any Staff Force employee make such a claim in 2003?
A: No.
Q: How about in 2004?
A: I believe that might be the year, the policy year where Mr. Casados’ claim came into our organization. I can’t remember exactly. There’s only one claim from — and that’s Mr. Casados’[s], and I can’t recall if it was '04 or '05, but that’s. the only one.
Q: Okay. I believe it was '05.
A: Okay.
Q: I think it was April of '05. So I understand what you’re saying, the only Workers’ Compensation claim that’s ever been made by a Staff Force employee on Port Elevator’s Workers’ Compensation policy was the claim for Mr. Casados?
A: That’s correct.
Q: Who made that claim?
A: I don’t know.
Q: That claim was denied, right?
A: Yes.
[Objection]
A: Yes, it was.
Q: Why was that claim denied?
A: I don’t know.
Q: Certainly Port Elevator didn’t pay a premium to cover any Staff Force employees, right?
[Objection]
A: No, they did not.
Q: Okay. So you’re certain, then, that for the years 2002 through 2005 the payroll for Staff Force was not included in the premium calculations for Port Elevator?
A: Correct.
Q: Okay. And this would be an example where that’s the payroll for Port Elevator, but does not include payroll for Staff Force employees working at Port Elevator, right?
A: Correct.
[Objection]
A: That was — that’s correct, it’s not the intent.

Stokey was cross-examined by Port Elevator’s counsel as follows:

Q [by Port Elevator’s counsel]: Okay. So just to use, then, that term, based upon what you can see in Exhibit 3 there, Port Elevator was a subscriber as of April 26, 2005?
A: That’s correct. Yes, sir.

On further examination by appellees’ counsel, Stokey testified:

Q [by appellees’ counsel]: Okay. So the term ‘subscriber’ doesn’t define who is or who isn’t covered by Workers’ Comp, it just describes whether or not somebody has a Workers’ Comp policy or not?
[Objection]
A: If I’m an employer and I’m a subscriber to Workers’ Compensation, then my employees are covered.
Q: Well, in this instance[,] Staff Force people weren’t covered, right?
[Objection]
A: From what I’m seeing on this — in this situation, you’ve got a situation where the claimant in question was not an employee of our policyholder.
Q: All right. I apologize if I’ve asked you some of these questions I’m about to ask you again. I just want to get them clear on the record so that we don’t have to bother you again with another deposition prior to trial.
Port Elevator did not pay for Workers’ Compensation insurance for Staff Force employees working at Port Elevator’s facility, correct?
[Objection]
A: That’s correct.
Q: And Texas Mutual did not charge Port Elevator for Workers’ Compensation coverage for Staff Force employees working at Port Elevator’s facility, correct?
[Objection]
A: Correct.
Q: And Texas Mutual did not intend to cover Staff Force employees under Port Elevator’s Workers’ Compensation policy, correct?
[Objection]
A: Correct.

On further examination by Port Elevator’s counsel, Stokey testified:

Q [by Port Elevator’s counsel]: It is the intent of Texas Mutual to cover all those persons who are in an employee/employer relationship with Port Elevator during the policy period at issue?
[Objection]
A: Yes. Correct.

Appellees’ summary judgment evidence also included Elkins’s deposition testimony, which included the following:

Q [by appellees’ counsel]: Did you have a conversation or [sic] any sort of at Staff Force if who, if anybody, was supposed to provide worker’s comp for the Staff Force employees?
A [Elkins]: Yes, I asked Staff Force all your — in the price you’re charging me what’s included, and they said workers’ comp all of that is included in the price we’re charging.
Q: So you guys didn’t get workers’ comp for the Staff Force employees? [Port Elevator’s counsel]: Object to form.
A: At the — we have workers’ comp and if Staff Force’s people were not covered under Staff Force’s comp then I believe my policy automatically charges me a premium based on the wages I pay Staff Force.
Q: That’s what you believe?
A: That’s what I believe, yes.

On further examination by Staff Force’s counsel, Elkins testified:

Q [by Staff Force’s counsel]: Now, when you had the discussion with Staff Force, the question was asked, do you have workers’ compensation insurance included in this rate?
A [Elkins]: Yes, sir.
Q: All right. And what were you told? A: Yes, we do.
Q: Did you ask which worker’s compensation carrier they had worker’s comp insurance with?
A: No, we didn’t.
Q: Was there any discussion that if they had worker’s compensation who would be insured under the policy, being Staff Force and the client company or did you get into that explanation?
A: They didn’t get into that explanation. I just asked them for a binder.

Elkins testified that the “binder” he referred to reflected that the insurer was Dallas Fire. Elkins also testified that pri- or to Casados’s death, no Port Elevator temporary employee had been injured.

Appellees also submitted a “Notice of Denial of Compensability/Liability and Refusal to Pay Benefits” form issued by Texas Mutual, Port Elevator’s workers’ compensation carrier. The document contains the following explanation:

TEXAS MUTUAL INSURANCE COMPANY DENIES THE CLAIM IN ITS ENTIRETY AS NO INJURY WAS SUSTAINED WITHIN THE COURSE AND SCOPE OF EMPLOYMENT WITH OUR INSURED PORT ELEVATOR-BROWNSVILLE. MR. CA-SADOS’S EMPLOYER AT ALL TIMES RELEVANT TO THIS CLAIM WAS AMS STAFF LEASING, DBA STAFF FORCE INC[.,] WHICH IS NOT COVERED BY A WORKERS COMPENSATION POLICY ISSUED BY TEXAS MUTUAL INSURANCE COMPANY. PER INVESTIGATION, THE CORRECT CARRIER IS DALLAS FIRE INSURANCE COMPANY AND THE POLICY NUMBER IS DWC020005-01[.]

In their “Amended Motion for Partial Summary Judgment on the Affirmative Defense of the Workers’ Compensation Bar,” appellees cited the supreme court’s opinion in Garza in support of their position that Port Elevator was required to show that it was covered by a policy for an injury to Casados. We agree that Garza supports appellees’ position. In Garza, the supreme court held that a temporary employment agency cannot obtain workers’ compensation insurance for a client simply by obtaining coverage for itself; rather, there must be explicit coverage for both employers. In so holding, the court explained:

The Staff Leasing Services Act does not apply to temporary or seasonal employment, but the specificity with which it addresses workers’ compensation strongly indicates that a leasing company cannot accomplish under the general workers’ compensation provisions of the Labor Code what it is prohibited from accomplishing under the Staff Leasing Services Act, which is also a part of the Labor Code. Suppose, for example, that the leasing company and the client decided not to expressly agree in a written contract that the client shares the right of direction and control of employees, but in fact, the parties contemplated they would share actual control and did so. The Staff Leasing Services Act would not apply. Did the Legislature intend to allow the leasing company and its client nevertheless to agree that the leasing company would obtain a policy for itself, based on its own experience rating, and that such a policy would also cover leased employees while working under the actual control of the client? The answer is no, this is not contemplated by the Labor Code. The specificity and details of the Staff Leasing Services Act negate the notion that parties can, by private agreement, decide that a single policy naming only one insured will cover one company’s employees while they are working under the direct control of another company, or that the experience rating of one and not the other will determine who the named insured will be.[]

Here, Port Elevator argues that because it can show that it had explicit workers’ compensation insurance coverage for itself, it established the exclusive remedy affirmative defense, and is not required to show that its workers’ compensation policy covered Casados. We disagree.

In Garza, the supreme court stated: “Accordingly, Exel has not established that it is ‘covered by workers’ compensation insurance coverage’ for a work-related injury sustained by the employee,’ in this case, Garza, which is a prerequisite to the application of the exclusive remedy provision in section 408.001(a).”

We hold that the summary judgment evidence conclusively established that Casados was not a covered employee under Port Elevator’s workers’ compensation insurance policy. Following Garza, we hold that Port Elevator has not established that it is covered by workers’ compensation insurance coverage for a work-related injury sustained by the employee, in this case, Casados, which is a prerequisite to the application of the exclusive remedy provision in section 408.001(a). We overrule Port Elevator’s sole issue. In so holding, we are mindful that the workers’ compensation statute is liberally construed in the worker’s favor.

IV. Conclusion

We hold that the trial court did not err in denying Port Elevator’s motion for summary judgment and in granting appellees’ motion for partial summary judgment. We affirm the trial court’s judgment.

      . Appellees, plaintiffs below, are acting individually and as representatives of their deceased son, Rafael Casados. Casados was unmarried and had no children when he died.

      . See Tex. Labor Code Ann. §§ 406.034(a), 408.001 (Vernon 2006). Port Elevator briefed a second issue, arguing that if there is a fact question regarding whether Casados was Port Elevator’s employee, the trial court erred in refusing to submit a jury question on the issue. However, the parties do not dispute that Casados was an employee of both Port Elevator and Staff Force, Inc. (“Staff Force”). In its reply brief, Port Elevator notes that we need not reach the second issue because the parties agree that Casados was Port Elevator’s employee.

      .The record reflects that Staff Force entered into a Staff Leasing Agreement with E-Z Bookkeepers, Inc. d/b/a Professional Business Solutions ("PBS") pursuant to the Staff Leasing Services Act ("SLSA”). See id. §§ 91.001-.063 (Vernon 2006 & Supp. 2009). Thus, with respect to PBS (the license holder), Staff Force was a “client company.” See id. § 91.001(3), (11) (Vernon Supp. 2009). Then, Staff Force, acting as a “general employer,” provided temporary workers to its "client companies,” including Port Elevator. See Wingfoot Enters, v. Alvarado, 111 S.W.3d 134, 136 n. 9 (Tex.2003); Western Steel Co., Inc. v. Altenburg, 169 S.W.3d 347, 350 (Tex.App.-Corpus Christi 2005) rev'd on other grounds, 206 S.W.3d 121, 124 (Tex.2006). The effect of this arrangement is that PBS, the license holder, leased Casados to Staff Force, the client company, which in turn, leased Casados to Port Elevator.

      . The record shows that Staff Force's work order assigning Casados to Port Elevator reflects a "start date” of April 25, 2005. Casa-dos's death occurred on April 26, 2005.

      . The only appellant in this appeal is Port Elevator.

      . See Tex. Labor Code Ann. § 408.001(b) (Vernon 2006) ("This section does not prohibit the recovery of exemplary damages by the surviving spouse or heirs of the body of a deceased employee whose death was caused by an intentional act or omission of the employer or by the employer’s ‘gross negligence.' ”).

      . Port Elevator references exhibits attached to Staff Force's "Plea to Jurisdiction and Motion to Dismiss or Abate," which are included in the record before us. Those documents purportedly show that Dallas Fire Insurance Company ("Dallas Fire”), PBS’s workers' compensation carrier, paid $56,238.00 to the subsequent injury fund of the Division of Workers' Compensation because Casados had no legal beneficiaries. See id. § 403.007 (Vernon 2006).

      . D.R. Horton-Tex., Ltd. v. Market Int'l Ins. Co., 300 S.W.3d 740, 743 (Tex.2009).

      . HCBeck, Ltd. v. Rice, 284 S.W.3d 349, 352 (Tex.2009).

      . Coffey v. Singer Asset Fin. Co., 223 S.W.3d 559, 562-63 (Tex.App.-Dallas 2007, no pet.) (citing Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex.1995)).

      . Browning v. Prostok, 165 S.W.3d 336, 344 (Tex.2005) (citing Provident Life and Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex.2003)); Coffey, 223 S.W.3d at 563.

      . HCBeck, Ltd., 284 S.W.3d at 350.

      . See Tex Labor Code Ann. § 408.001(a).

      . Funes v. Eldridge Elec. Co., 270 S.W.3d 666, 668 (Tex.App.-San Antonio 2008, no pet.); Morales v. Martin Res., Inc., 183 S.W.3d 469, 471 (Tex.App.-Eastland 2005, no pet.); Western Steel Co., Inc., 169 S.W.3d at 349.

      . See Morales, 183 S.W.3d at 471.

      . Id. (citing Garza v. Exel Logistics, Inc., 161 S.W.3d 473, 475 (Tex.2005); Wingfoot Enters., 111 S.W.3d at 144).

      . Guerrero v. Harmon Tank Co., 55 S.W.3d 19, 25 (Tex.App.-Amarillo 2001, pet. denied).

      . See Wesby v. Act Pipe & Supply, Inc., 199 S.W.3d 614, 617-18 (Tex.App.-Dallas 2006, no pet.); Western Steel Co., Inc., 169 S.W.3d at 350; Univ. of Houston-Clear Lake v. Marsh, 981 S.W.2d 912, 914 (Tex.App.-Houston [1st Dist.] 1998, no pet.).

      . We note that in its motion for summary judgment, Port Elevator argued that appellees had "no evidence” that appellees exhausted their administrative remedies. Port Elevator has not raised this argument on appeal, and we do not address it. See Tex.R.App. P. 38.1 (i).

      . See Garza, 161 S.W.3d at 478 ("The Act does not permit a temporary employment agency like Interim to obtain coverage for a client simply by obtaining coverage for itself. There must be explicit coverage for the client.”).

      .The policy period is July 12, 2004 through July 12, 2005. Casados’s fatal accident occurred on April 26, 2005.

      . Tex. Workers' Compensation Ins. Fund v. Del Industrial, Inc., 35 S.W.3d 591, 596 (Tex.2000) ("It has long been the law in Texas that an employer may not split its workforce by providing workers' compensation insurance to some workers while leaving others without coverage.”).

      . Md. Cas. Co. v. Sullivan, 160 Tex. 592, 334 S.W.2d 783, 786 (1960).

      . Tex. Employers' Ins. Ass’n v. Stanton, 140 S.W.2d 337, 339 (Tex.Civ.App.-Amarillo 1940, writ ref’d).

      . See Del Industrial, Inc., 35 S.W.3d at 596 (citing Tex. Labor Code Ann. §§ 91.001-063) (the SLSA).

      . Id.

      . See id.

      . See id.

      . Neither party asserts that Staff Force is a staff leasing agency pursuant to the SLSA. Port Elevator characterizes Staff Force as a "temporary employment agency.” Appellees characterize Staff Force as a "temporary staffing company.” As noted, Staff Force was a “client company” under the SLSA because it entered into a staff leasing agreement with PBS. Evidence in the record shows that PBS carried workers' compensation insurance coverage for the applicable period through Dallas Fire. Staff Force was not a named insured on the Dallas Fire policy or on any other policy that appears in the record.

      . Del Industrial, Inc., 35 S.W.3d at 596.

      . See Tex. Labor Code Ann. § 408.001 (emphasis added).

      . In its appellate brief, Port Elevator cites Bradley v. Phillips Chem. Co., 484 F.Supp.2d 604, 615 (S.D.Tex.2007), for the proposition that the code classifications do not limit coverage under the policy and cannot be used to exclude employees from coverage. However, Port Elevator did not make this argument in its motion for summary judgment or in its responses to appellees’ motion. Accordingly, we do not consider it. See 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.”).

      .In its "Supplemental Response to Plaintiffs’ Amended Motion for Summary Judgment,” Port Elevator noted that the denial statement was made by Texas Mutual, not by Port Elevator, and that Texas Mutual's posi-don is "wholly immaterial” to Port Elevator's position.

      . See Garza, 161 S.W.3d at 481.

      . See id. at 479.

      . Id. (internal footnotes omitted).

      . Id. at 481 (emphasis added).

      . See id. (emphasis added).

        .See Navarette v. Temple Indep. Sch. Dist., 706 S.W.2d 308, 309 (Tex.1986).