Oliver Communications Group, Inc. v. Schneider Electric Buildings Americas, Inc. ( 2018 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-17-00396-CV
OLIVER COMMUNICATIONS GROUP, INC., APPELLANT
V.
SCHNEIDER ELECTRIC BUILDINGS AMERICAS, INC., APPELLEE
On Appeal from the 96th District Court
Tarrant County, Texas
Trial Court No. 096-276,107-14, Honorable R. H. Wallace, Jr., Presiding
November 2, 2018
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PARKER, JJ.
Oliver Communications Group, Inc. (Oliver) appeals from a final summary
judgment. 1 It had been sued by Schneider Electric Buildings Americas, Inc. (Schneider)
for indemnity per a subcontract executed between Oliver and Schneider (Subcontract).
According to the record, Schneider contracted with the Delaware River Port Authority of
Pennsylvania (Port Authority) to install security cameras on the Benjamin Franklin Bridge
(Bridge Contract). A provision of the Bridge Contract allegedly obligated Schneider to
indemnify Port Authority against certain claims. Schneider and Oliver executed the
1 Because this appeal was transferred from the Second Court of Appeals, we are obligated to apply
its precedent when available in the event of a conflict between the precedents of that court and this Court.
See TEX. R. APP. P. 41.3.
Subcontract to facilitate completion of Schneider’s agreement with Port Authority. In the
Subcontract, Oliver also agreed to indemnify Schneider against certain claims.
Once performance under these contracts began, an employee of Oliver (i.e.,
Patrick Burness) slipped and fell on steps at the job site. Burness sued Port Authority,
among others. Port Authority demanded indemnification from Schneider, and, in turn,
Schneider demanded indemnification from Oliver. Oliver refused, while Schneider did
not. Eventually, Burness settled his lawsuit, Schneider paid the settlement, and
Schneider sued Oliver for indemnification upon the Subcontract. Thereafter, both litigants
filed their respective motions for summary judgment. The trial court granted that of
Schneider while denying Oliver’s. Thus, Schneider was awarded over $1.2 million against
Oliver.
Oliver appealed, contending that the trial court erred in granting Schneider’s
motion for summary judgment and denying its own. Though Oliver lay a number of issues
and sub-issues before us, they primarily involve the existence of an agreement obligating
it to indemnify Schneider, the enforceability of any such indemnity agreement, and
whether Oliver was obligated to pay pre-judgment interest on attorney’s fees. We reverse
and render.
Authority
We review traditional and no-evidence motions for summary judgment under the
standards discussed by the Supreme Court in Dallas Morning News, Inc. v. Tatum, 554
S.W.3d 614 (Tex. 2018), and Lightning Oil Co. v. Anadarko E&P Onshore, LLP, 520
S.W.3d 39 (Tex. 2017). Those standards are applied here.
Next, Oliver and Schneider seem to agree that the rules of contract interpretation
of both Pennsylvania and Texas control. Both sets of rules require us to interpret the
2
meaning of a contract by focusing on the intent of the parties as evinced by the words
used in the instrument. See Mace v. Atl. Ref. & Mktg. Corp., 785 A.2d 491, 496 (Pa.
2001) (stating that a fundamental rule in construing a contract is to ascertain and give
effect to the intent of the contracting parties and, when the words of a contract are clear
and unambiguous, the meaning of the contract is ascertained from the contents of the
agreement alone); URI, Inc. v. Kleberg Cty., 543 S.W.3d 755, 763–64 (Tex. 2018) (stating
that our objective is to ascertain and effectuate the parties’ intent as expressed in the
instrument and interpret contract language according to its plain, ordinary, and generally
accepted meaning unless the instrument directs otherwise). Furthermore, the words are
not construed in isolation but, rather, in context with the entirety of the agreement. URI,
Inc., 543 S.W.3d at 764.
Next, it is argued here that Port Authority sought indemnity against its own
negligence. That calls into play another rule of construction utilized in both Pennsylvania
and Texas. Per its edict, an indemnity contract should not be construed so as to indemnify
against the negligence of the indemnitee unless it is so expressed in unequivocal terms.
Mace, 785 A.2d at 495; accord Fisk Elec. Co. v. Contractors & Assocs., Inc, 888 S.W.2d
813, 814–15 (Tex. 1994) (stating that indemnity provisions which do not clearly provide
for indemnification for the indemnitee’s own negligence do not, as a matter of law,
indemnify the indemnitee for its own negligence).
Texas authority also mandates that indemnity agreements are strictly construed in
favor of the indemnitor. Yowell v. Granite Oper. Co., __S.W.3d__, __, 2018 Tex. App.
LEXIS 5820, at *25 (Tex. App.—Amarillo July 26, 2018, pet. filed); Levco Constr., Inc. v.
Whole Foods Mkt. Rocky Mountain/Sw. L.P., 549 S.W.3d 618, 648 (Tex. App.—Houston
[1st Dist.] 2017, no pet.); Irvin v. Guarantee Co. of N. Am., No. 05-07-01230-CV, 2008
3
Tex. App. LEXIS 5865, at *9 (Tex. App.—Dallas Aug. 5, 2008, no pet.) (mem. op.); accord
Ethyl Corp. v. Daniel Constr. Co., 725 S.W.2d 705, 707 (Tex. 1987) (stating that “[a]n
examination of cases from this court reveals its trend toward more strict construction of
indemnity contracts”). This rule requiring strict construction favoring the indemnitor bars
the extension, by construction or implication, of the indemnitor’s duty beyond the precise
terms of the agreement. Irvin, 2008 Tex. App. LEXIS 5865, at *9. This is not a rule of
construction but, rather, a rule of substantive law that applies only after the parties’ intent
has been ascertained through ordinary rules of construction. Id. at *9–10.
Issue One – Schneider’s Motion for Summary Judgment – Duty to Indemnify
Oliver initially contends that it had no agreement to indemnify Schneider for
indemnifying Port Authority. This was purportedly so because Oliver had no agreement
with Port Authority, and though Schneider did, Schneider failed to prove that it “was
contractually bound to indemnify [Port Authority] in connection with the underlying suit” of
Burness. We sustain the issue.
The claims of indemnification here are founded upon contract. So, resolution of
Oliver’s contentions necessarily entails linking Oliver to Port Authority. That is, Oliver
must have agreed to indemnify Schneider for indemnifying Port Authority. Furthermore,
both indemnity agreements somehow must have encompassed the claim urged by
Burness against Port Authority. The burden to establish that link lay upon Schneider
since it sought to impose liability upon Oliver via traditional motion for summary judgment.
See Lightning Oil Co., 520 S.W.3d at 45 (stating that the movant in a traditional motion
for summary judgment has the burden to prove its entitlement to judgment as a matter of
law). Whether it satisfied that burden requires us to look at the various agreements
executed by the litigants.
4
We begin with the agreements between Port Authority and Schneider. That
relationship started with a “Request for Proposal” and culminated in a “Purchase Order.”
The former consisted of multiple sections, including the “project description,” “proposal
requirements,” and “general provisions.” Within the “general provisions” lay the indemnity
clause obligating the “Design/Builder” to indemnify Port Authority against claims
arising out of or resulting from: (a) performance or non-performance of the Work;
(b) breach of any of the Design/Builder’s obligations under the Contract
Documents, or (c) acts or omissions of the Design/Builder, its contractors,
consultants, suppliers, or anyone directly or indirectly employed by any of them or
anyone for whose acts they may be responsible, regardless of whether or not such
claim, demand, cause of action, damage, liability, loss, or expense is caused in
part by a party indemnified hereunder.
The “Purchase Order” issued by the Bureau of Financial Management, apparently
on behalf of Port Authority, identified Schneider2 as the “supplier” and noted that it was
issued on “07/18/2008.” Though unsigned, it not only described the materials and
services to be provided but also incorporated by reference various extraneous
documents. The passage incorporating those documents provided that “[t]his Purchase
Order is comprised of: The above-referenced Solicitation, the Supplier’s Bid or Proposal,
and any documents attached to this Purchase Order or incorporated by reference.” The
“Purchase Order” we have of record has no “documents attached.” Nor does it contain
the “Supplier’s Bid or Proposal.” And, in perusing its content, we found no “Solicitation”
purporting to be referenced above. Nor did we find any reference to the aforementioned
“Request for Proposal” or provision expressly incorporating that “Request” into the
“Purchase Order.” Moreover, the “Purchase Order” itself contained no indemnity
provision.
2 The actual “supplier” was a predecessor of Schneider. We refer to it as Schneider for mere
simplicity.
5
As for the existence of a separate, signed master contract between Port Authority
and Schneider supplementing or incorporating the “Purchase Order” or otherwise
clarifying the extent of their respective obligations, evidence of record indicates that there
was none. Therein lies the basis for Oliver’s initial complaint, as we will explain. Before
we do so, however, it is first appropriate to continue our sojourn down the rabbit hole by
discussing the various documents manifesting the contract between Schneider and
Oliver.
We begin with the “Subcontract for Construction” (Subcontract) signed by Oliver
and Schneider apparently on July 18, 2008. It denominated Schneider as “Contractor”
and Oliver as “Subcontractor.” So too did it name the “Commonwealth of Pennsylvania”
as the “customer” and incorporated by reference the “Master Agreement . . . dated July
2, 2008,” between Schneider and Oliver. Paragraph 4 of the Subcontract also stated that
“[t]he Contract Documents for this Subcontract Agreement are enumerated in Attachment
‘1.’”
In turn, Attachment “1” itemized the “Contract Documents” as follows: 1) “this
Agreement (Subcontract No. T1154E . . . and Master Agreement . . . including all exhibits
and attachments, the Contract between the Contractor and the Commonwealth of
[Pennsylvania] hereinafter referred to as Contractor’s Contract, and all Contract
Documents identified therein; the drawings, plans, and specifications, [and] all
addenda . . .”; 2) “[t]his Attachment ‘1’”; 3) “Schedule of Values”; 4) “Subcontractor’s
Partial Lien Release”; 5) “Affidavit and Conditional Lien Waiver”; 6) “Scope of Work”; 7)
“Terms and Conditions of the Master Agreement”; and 8) various other writings not
pertinent here.
6
The Master Agreement contains the provision obligating Oliver to indemnify
Schneider. That provision states as follows:
TO THE FULLEST EXTENT PERMITTED BY LAW WITH RESPECT TO
THE WORK COVERED BY THIS SUBCONTRACT, SUBCONTRACTOR
AGREES TO INDEMNIFY, SAVE AND HOLD HARMLESS THE
CONTRACTOR, CONTRACTOR’S AGENTS AND EMPLOYEES, AND
ALL PARTIES INDEMNIFIED BY CONTRACTOR IN CONTRACTOR’S
CONTRACT FROM AND AGAINST ALL CLAIMS, DAMAGES, LOSSES
AND EXPENSES INCLUDING, REASONABLE ATTORNEY’S FEES . . .
ARISING BY REASON OF THE DEATH OR BODILY INJURY TO
PERSONS, INJURY OR DAMAGE TO PROPERTY, DESIGN DEFECTS
. . . DESTRUCTION OF TANGIBLE PROPERTY OR THE USE THEREOF,
TO THE EXTENT CAUSED IN WHOLE OR IN PART BY ANY NEGLIGENT
ACT OR OMISSION OF SUBCONTRACTOR, SUBCONTACTOR’S
EMPLOYEES, AGENTS, SUPPLIERS, SUBCONTRACTORS OR
ANYONE FOR WHOSE ACTS SUBCONTRACTOR MAY BE LIABLE AND
SUBCONTRACTOR EXPRESSLY SO AGREES, WHETHER OR NOT
SAID LIABILITY, CLAIM, DEMAND, LOSS OR EXPENSE ARISES IN
PART FROM THE NEGLIGENCE OF CONTRACTOR OR ANY PARTY
INDEMNIFIED BY CONTRACTOR IN CONTRACTOR’S CONTRACT . . . .
One other provision in the Master Agreement merits note. It is found in Article 14
of the accord and provides that “[t]his Agreement shall be [i]nterpreted and enforced
according to the laws of the State of Texas.” Thus, Pennsylvania authority does not
regulate application or interpretation of the agreement between Oliver and Schneider.
As can be seen from the aforementioned indemnity provision, those encompassed
within Oliver’s duty to indemnify included the Contractor (Schneider) and its employees
and agents as well as “all parties” that Schneider “indemnified . . . in the Contractor’s
Contract.” Per Attachment “1” to the Subcontract, the “Contractor’s Contract” refers to
the contract between the Commonwealth of Pennsylvania and Schneider wherein
Schneider obligated itself to indemnify Pennsylvania. Apparently, Oliver asked for a copy
of that “Contractor’s Contract” and was told that none existed. Instead, there was “just a
Purchase Order from PEMA.” That “Purchase Order” contained no indemnity provision,
7
as we previously observed. Again, the only indemnity provision between Schneider and
Port Authority is found within the “Request for Proposal” wherein the “Design/Builder”
acceded to provide indemnification.
Assuming arguendo that Schneider was the “Design/Builder” alluded to in the
“Request for Proposal,” the latter document was not expressly referenced in or expressly
incorporated into the only agreement between Schneider and Port Authority, i.e., the
“Purchase Order.” Admittedly, the latter alludes to an “above-referenced Solicitation” but
again, the “Purchase Order” does not mention any “Solicitation.” Nor did the “Purchase
Order” define what was meant by “Solicitation.” Whether the “Solicitation” and March
2008 “Request for Proposal” are one and the same is left to conjecture. And, the burden
fell upon Schneider to establish that connection, if any, via its traditional summary
judgment evidence.
So, the record at bar falls short of linking Oliver to Port Authority. Oliver is linked
to Schneider and anyone Schneider contracted to indemnify. But, no agreement we
encountered of record completes the chain by establishing, as a matter of law, that
Schneider agreed to indemnify Port Authority, Pennsylvania, or any Pennsylvania entity.3
Thus, Schneider failed to prove, as a matter of law, that it was contractually obligated to
indemnify Port Authority. And, if it was not, then Oliver’s duty to indemnify was never
triggered. So, Schneider was not entitled to summary judgment.
3 Schneider suggests otherwise by referring to a “Master Agreement” “between Schneider and
DRPA/PATCO [i.e., Port Authority].” That agreement purportedly contained or incorporated exhibits and
attachments included in the “Request for Proposal.” Yet, the page citations it afforded us do not support
its proposition. Rather, the documents found on pages 135 and 137 of the Clerk’s Record refer to a master
agreement between Schneider and Oliver. For instance, that on page 135 concerns a “Master Agreement
No. PHI000110, dated 7/2/2008 between OIiver Communications & Group and TAC Americas, Inc.
[i.e., Schneider]” while that on page 137 involves the same “Master Agreement No. PHI000110, dated
7/2/2008.” (Emphasis added). See also I C.R. 144–59 (the Schneider/Oliver “Master Agreement”
numbering and dating itself PHI000110 and July 2, 2008, respectively).
8
We find another issue precluding summary judgment. It pertains to the scope of
Oliver’s duty as specified in the Master Agreement. Therein, Oliver agreed to indemnify
against claims “arising by reason of the death or bodily injury . . . to the extent caused in
whole or in part by any negligent act or omission of Subcontractor [Oliver], [Oliver’s]
employees, agents, suppliers, subcontractors or anyone for whose acts subcontractor
may be liable and [Oliver] expressly so agrees, whether or not said liability . . . arises in
part from the negligence of Contractor [Schneider] or any party indemnified by [Schneider]
in Contractor’s Contract.” Per URI, Inc., the components of this clause may not be
construed in isolation but in the context of the entire agreement. And, per Ethyl and
Yowell, we must also strictly interpret them in a manner favoring the indemnitor, i.e.,
Oliver. Following those rules leads us to these observations.
The first concerns who “caused” the death, injury, or damage; it is death, injury, or
damage “caused in whole or part” by “any negligent act or omission” of a specifically
denominated group of individuals or entities. That specifically denominated group is
Oliver and its “employees, agents, suppliers, subcontractors, or anyone for whose acts
[Oliver] may be liable.” Additionally, the conduct in which they engaged must be
negligent. A non-negligent act or omission on their part falls outside the phrase’s scope.
Following that comes verbiage explaining a lack of limitation upon the breadth of Oliver’s
“liability.” The language to which we refer is that saying the indemnitor agreed to be
responsible for the negligence of its employees, agents, suppliers, subcontractors, and
the like “whether or not said liability . . . arises in part from” Schneider’s negligence or the
negligence of anyone Schneider agreed to indemnify in its contract with Port Authority.
When we put the two components of the clause together, we read the provision as
meaning that Oliver will be liable for injury, death, and damage caused by the negligence
9
of the specifically named group even if the negligence of Schneider or its indemnitees
partially caused the same injury, death, or damage. In other words, Schneider and its
indemnitees cannot be the sole cause of the injury, for the injury must also be caused in
part by someone or some entity within the specifically named group. Simply put, the
clause speaks of a potential for multiple causes. Of those multiple causes, one must be
the negligent actions or omissions of Oliver, its employees, agents, subcontractors,
suppliers, or entities for which Oliver is liable. Indeed, our interpretation of that clause
finds support in authority from sister courts construing relatively similar indemnity
provisions.
For instance, in Delta Airlines, Inc. v. ARC Sec., Inc., 164 S.W.3d 666 (Tex. App.—
Fort Worth 2005, pet. denied), the Fort Worth Court of Appeals had opportunity to interpret
a clause stating as follows: “Contractor [ARC] shall indemnify, defend and hold harmless
Delta . . . from and against any and all claims . . . which in any way arise out of or result
from any act(s) or omission(s) by [ARC]” and “[t]his section shall apply regardless of
whether or not the damage, loss or injury complained of arises out of or relates to the
negligence . . . of, or was caused in part by, a party indemnified hereunder.” Id. at 669.4
The summary judgment evidence there indicated that the claims involved did not arise or
result from anything ARC or its employees did. So, the issue became whether ARC’s
duty to indemnify encompassed claims arising from Delta’s sole negligence. See id. at
671.
4 Again, this case was transferred from the Fort Worth Court of Appeals, and we are bound to follow
its precedent in the event of a conflict. See TEX. R. APP. P. 41.3. While we do not observe a conflict
between this Court and our sister court, we find Delta Airlines particularly persuasive as it represents
relevant authority from the transferor court.
10
The majority analyzed the two components of the clause by comparing them and
their purpose. According to it, the first sentence “define[d] the indemnity obligation, and
the second define[d] its parameters.” Id. at 672. The “first sentence . . . [said] that ARC
will indemnify Delta against all claims against Delta that arise out of acts or omissions of
ARC under the Agreement.” Id. The second said “that this indemnification by ARC will
be applicable notwithstanding the negligence of a party indemnified under it, which is
Delta.” Id. “In other words, ARC’s obligation to indemnify Delta, if Delta is sued for ARC’s
acts or omissions exists even if Delta is also negligent, or loss was ‘caused in part by’
Delta.” Id. Yet, “nowhere is there language that directly or indirectly [said] that ARC will
indemnify Delta if Delta is solely at fault, because if Delta is solely at fault, then ARC
cannot be at fault and Delta could not be sued for ARC’s acts or omissions as required
for indemnification.” Id. at 672–73. In short, the Delta panel required the involvement of
some act or omission on the part of ARC to trigger the duty to indemnify. The negligence
of Delta alone was not enough, given the wording of the provision; so, the clause did not
obligate ARC to indemnify against Delta’s sole negligence. See id.
Admittedly, there was a concurrence. Nonetheless, Justice Gardner still read the
two sentences as requiring that the claim arise from ARC’s acts or omission. In her view,
“ARC’s indemnity obligation would still only be triggered by allegations in the underlying
suit that the claimed injuries arose out of performance or nonperformance of ARC’s
services.” Id. at 675 (Gardner, J., concurring).
So, both the majority and concurrence in Delta interpreted the clause as obligating
ARC to indemnify Delta for claims arising from a certain category of conduct, that conduct
being the acts or omissions of ARC. Components of the clause at bar require the same.
The first phrase defines the category of claims subject to indemnification, those being the
11
negligent acts of Oliver, its employees, agents, suppliers, subcontractors, or those for
whom Oliver may be liable. The phrase following that (i.e., “whether or not said liability .
. . arises in part from the negligence of . . .”) simply clarifies that Oliver will remain
obligated to indemnify against the acts of its employees, agents, et al. even if the negligent
acts of Schneider or an entity that Schneider is contractually obligated to indemnify were
partly involved. And, just as ARC did not do in Delta, given the wording of the indemnity
provision there, Oliver did not agree to indemnify Schneider or Port Authority if either
entity’s sole negligence caused the injury, given the strictly construed wording of the
provision here.
Our construction of the clause finds additional support in Tri-State Ins. Co. v.
Rogers-O’Brien Constr. Co., No. 05-95-01639-CV, 1997 Tex. App. LEXIS 2302 (Tex.
App.—Dallas Apr. 30, 1997, writ denied) (mem. op.). There, Tri-State sought a
declaratory judgment adjudicating whether an insurance policy issued to Ellsworth
covered the claim of an Ellsworth employee who sued Ellsworth and Rogers-O’Brien for
injuries incurred on the job. Id. at *2. Ellsworth was a subcontractor of Rogers-O’Brien
working on a construction project for Rogers-O’Brien. Furthermore, Rogers-O’Brien
sought indemnity from Ellsworth per a clause of the subcontract. Id. The indemnity
provision in question stated that, “[t]o the fullest extent permitted by law, [Ellsworth] shall
defend, indemnify and hold harmless . . . [Rogers-O’Brien] . . . from and against all claims
. . . arising out of or resulting from the performance of [Ellsworth’s] work under the
subcontract . . . to the extent caused in whole or in part by any negligent act or omission
of [Ellsworth] or anyone directly or indirectly employed by him or anyone for whose acts
he may be liable, regardless of whether it is caused in part by the negligence of . . .
12
[Rogers-O’Brien].’” Id. at *3–4. Rogers-O’Brien argued that this provision satisfied the
express negligence doctrine. Id. at *5–6.
The reviewing court disagreed and concluded that “Ellsworth never agreed to
indemnify Rogers-O’Brien for Rogers-O’Brien’s negligence.” Id. at *14. “When the parties
used the limiting language ‘to the extent caused in whole or in part by any negligent act
or omission of [Ellsworth],’ they left no doubt as to their intention to indemnify Rogers-
O’Brien against only Ellsworth’s negligent acts.” Id. (Emphasis added). “The expression
‘to the extent’ means specifically that Rogers-O’Brien should be indemnified in an amount
equivalent to the proportion Ellsworth’s negligent acts bear to the whole of the acts or
omissions that caused [the employee]’s injuries.” Id. The remaining language,
“‘regardless of whether it is caused in part by the negligence of [Rogers-O’Brien][,]’ does
not unequivocally indicate the specific intent [required by the express negligence doctrine]
that Ellsworth would indemnify Rogers-O’Brien for Rogers-O’Brien’s negligence.” Id. The
same is no less true here. The phrase “whether or not said liability . . . arises in part from
the negligence of” Schneider or those it agreed to indemnify again merely means that
Oliver will indemnify Schneider for the negligence of Oliver’s employees, agents, et al.
even if the negligence of Schneider or anyone Schneider agreed to indemnify was partly
involved.
So, before it was entitled to summary judgment, Schneider had to present
evidence establishing, as a matter of law, that Burness’s injuries were proximately
caused, at least in part, by the negligence of Oliver or its employees, agents, et al.
Whether it did requires us to return to the summary judgment record. It illustrates that
Burness sued Port Authority and other governmental entities for his injuries. He alleged
that they were incurred while performing employment duties and walking down
13
deteriorating steps that the defendant governmental entities were obligated to maintain.
His accusations did not assign any negligence to Oliver, its employees, agents, suppliers,
subcontractors, or entities for which Oliver may be liable. Only the negligence of Port
Authority and the other named governmental entities caused his injuries, according to his
pleading.
As for any proof that Oliver or any of its employees, agents, et al. were negligent,
we found reference to three bits of evidence. They concerned Burness. The first two
were opinions voiced by the same attorney. The one appearing in his affidavit consisted
of the opinion that, “based on my experience, I believed the jury would find some
percentage of negligence on Mr. Burness, but the most we could have hoped for was
contributory negligence in the range of 10%.” The other, which appeared in an unsworn
declaration, consisted of the following statement: “Based on my experience, a negligence
finding on Mr. Burness could be in the range of 10%.”5 Accompanying neither opinion
were facts illustrating the basis for the statement or describing the conduct in which
Burness engaged at the time and explaining why it was purportedly negligent. As such,
the opinions were conclusory and, therefore, incompetent summary judgment evidence.
In other words, they are no evidence of negligence on the part of Burness. See Rider v.
21st Mortg. Corp., No. 02-17-00354-CV, 2018 Tex. App. LEXIS 3919, at *8 (Tex. App.—
Fort Worth May 31, 2018, no pet.) (mem. op.) (holding that because putative husband did
not provide the underlying facts to support his assertion that he and another person were
informally married, his assertion was conclusory and not competent summary judgment
5 These opinions apparently were voiced in effort to establish the reasonableness of the settlement
Port Authority reached with Burness.
14
evidence); Nelson v. Martinez, No. 07-15-00430-CV, 2016 Tex. App. LEXIS 7421, at *23
(Tex. App.—Amarillo July 12, 2016, pet. denied) (mem. op.) (holding the same).
As for the third bit, it concerns a deposition excerpt wherein the deponent
purportedly “testified that there was an unsafe condition in the area of Burness’ fall
‘depending on’ whether the person using it was using the handrail.” The deponent was
being asked about whether the steps were in an “unsafe condition.” Her response was:
“It can be if someone is not – there’s handrails along, if I remember correctly, these
stairwells. As I remember, we extended the handrails so that someone could have a grip
on it years ago. So, it can be unsafe. It depends on the person’s footing, as to how much
more or less safe it would be to use the stair, I would say.” She was then asked what she
meant by “more or less” to which question, the deponent replied: “Because the – I am
seeing that the stair landing, itself, the tread, would be enough to support a foot, and then
again, with hand rails, depending on how someone is walking down . . . and when you
have footing on these stairs, because there is enough of a tread to have footing, then one
could navigate the stair.” The context of these statements evince that the deponent was
not discussing the supposed negligence of Burness but, rather, the unsafe condition of
the stairs. She admitted that they were unsafe depending on how one walked down them.
She did not describe how Burness walked down them or how one utilizing them to install
security measures on a bridge construction project should use them. Neither did she
suggest that Burness was not using the handrails or that a reasonable person performing
the duties Burness was performing at the time would or could have used the handrails.
Instead, she merely opined that “one could navigate the stair” giving the footing size and
handrail presence. Whether being able to “navigate” a deteriorating stair by using a
handrail amounts to a safe condition is not something we need address; nor is it
15
something that the deponent concluded. Such, though, is not evidence that Burness
breached a duty of care that proximately caused his injuries.6
In sum, Oliver agreed to indemnify others from the negligence of its own
employees, agents, suppliers, and the like. It did not agree to indemnify either Schneider
or Schneider’s purported indemnitees against the negligence of Schneider or Schneider’s
indemnitees. Furthermore, the evidence of record to which we were cited falls short of
raising a question of fact regarding whether the injuries suffered by Burness were caused
by his own negligence or any other employee, agent, supplier, or subcontractor of Oliver
or entity for which Oliver may be liable. This again means that the trial court erred in
entering the summary judgment it entered.
Issue Two – Oliver’s Motion for Summary Judgment
Oliver asks that the summary judgment order be reversed and that we “render a
take-nothing judgment in favor of Oliver, pursuant to its cross-motion.” In the alternative,
it wanted us to reverse and remand the cause for further proceedings. The cross-motion
to which it referred was a traditional and no-evidence motion for summary judgment.
Additionally, the grounds upon which both were sought included the arguments that 1)
Schneider’s decision to indemnify Port Authority was gratuitous since the former had no
contractual obligation to indemnify the latter and 2) there was no evidence that Burness
was negligent.
6 We do not ignore Schneider’s contention that Pennsylvania law “provides that the failure to use
an available handrail can constitute contributory negligence in a claim regarding a fall.” That failing to use
a handrail under a particular set of facts may constitute negligence does not mean it is negligence in all
situations or in situations in which Burness or like workers found themselves. Not even the authority it cited
in support of the contention, see, e.g., Stevenson v. Pittsburg, C. C. & St. L. Ry., 219 Pa. 626 (1907) (icy
steps of which plaintiff knew and evidence of no reason to forgo use of handrail), or Ward v. Horn & Hardart
Baking Co., 62 A.2d 97 (Pa. Superior 1948) (presence of mud and slush at entry of which plaintiff knew and
evidence of no reason to forgo use of handrail), so hold.
16
As discussed above, the evidence of record failed to link Oliver to Port Authority
for purposes of indemnification. Nor did it contain evidence that Burness was negligent
and that his negligence proximately caused any of his injuries. By raising the matter via
a no-evidence motion for summary judgment, Oliver placed the burden on Schneider to
provide such evidence. Because it did not, Oliver was entitled to summary judgment on
at least two grounds encompassed within its no-evidence cross-motion. Being so entitled,
we need not address the other issues it raised on appeal.
We reverse the final summary judgment of the trial court and render judgment
denying Schneider recovery against Oliver.
Brian Quinn
Chief Justice
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