Carlos Vigil v. State ( 2010 )

                                                            NO. 07-10-0367-CR

NO. 07-10-0368-CR

                                                   IN THE COURT OF APPEALS

                                       FOR THE SEVENTH DISTRICT OF TEXAS

                                                                 AT AMARILLO

                                                                      PANEL B

                                                            OCTOBER 20, 2010

                                            ______________________________

                                                                CARLOS VIGIL,

                                                                                                            Appellant

                                                                             v.

                                                        THE STATE OF TEXAS,

                                                                                                            Appellee

________________________________

                        FROM THE 251st DISTRICT COURT OF POTTER COUNTY;

                       NOS. 57,173-C, 57,174-C; HON. ANA ESTEVEZ, PRESIDING

                                           _______________________________

                                               ON ABATEMENT AND REMAND

                                           _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

Appellant appeals from his convictions for indecency with a child.  Neither the clerk’s record nor the reporter’s records have been filed.  Counsel for appellant has filed a motion to withdraw, stating that he has not been employed to represent appellant in these appeals. Counsel further states that appellant has filed an affidavit of indigence.

Accordingly, we abate these appeals and remand the causes to the 251st District Court of Potter County (trial court) for further proceedings. Upon remand, the trial court shall determine, by reasonable evidentiary procedure it selects, the following:

1.  whether appellant desires to prosecute the appeals;

         2. whether appellant is indigent; and, if so,

3.  whether the appellant is entitled to a free appellate record in each case and the appointment of an attorney due to his indigency.

The trial court is also directed to enter such orders necessary to address the aforementioned questions.  So too shall it include its findings on those matters (including the name, address, and phone number of any attorney it may appoint to represent appellant in these appeals) in a supplemental record in each case and cause those records to be filed with this court by November 19, 2010.  Should further time be needed to perform these tasks, then same must be requested before November 19, 2010.  In the meantime, all other appellate deadlines and counsel’s motion to withdraw are stayed until further order of this court.

It is so ordered.

Per Curiam

Do not publish.

s Rule of Evidence 407, which states that subsequent remedial measures are inadmissible to prove negligence or culpable conduct. Exxon Corp. v. Roberts, 724 S.W.2d 863, 869 (Tex. App.--Texarkana 1986, writ ref'd n.r.e.); City of Amarillo v. Reid, 510 S.W.2d 624, 630 (Tex. Civ. App.--Amarillo 1974, writ ref'd n.r.e.). However, it does not demand exclusion if the evidence is offered for another purpose, such as to prove, among other things, control. Tex. R. Evid. 407(a); Roosth & Genecov Prod. Co. v. White, 262 S.W.2d 99, 104-105 (Tex. 1953) (discussing the principle and its exceptions).

For example, if the existence of one's duty to act depended upon his right to control a matter and dispute existed as to which of two parties had that right, then evidence of one's party's amelioration of a condition (after an injury occurred) is admissible as evidence illustrating that the party ameliorating the condition had control over the matter. Spurr v. LaSalle Constr. Co., 385 F.2d 322, 327-28 (7^th Cir. 1967) (applying the comparable federal rule); 2 J. Weinstein, M. Berger, & J. McLaughlin, Weinstein's Evidence ¶ 407[04] (1996).

2. Application of Standard

Here, LLC denied that it had the right and obligation to control safety measures in general and the fall protection utilized by KK's employees in particular. Yet, that it installed the steel cable and provided a scaffold for use by those employees is evidence akin to that contemplated in Spurr and Weinsteins's Evidence. In other words, it is probative on the question of who exercised control over safety measures utilized by those working above ground and outside the building, i.e., LLC or each subcontractor. ⁽⁷⁾ Thus, it was admissible under rule 407(a) and the trial court did not abuse its discretion in admitting it.

Nevertheless, LLC posits that before the evidence could be admitted, Jimmy's kin had to illustrate that KK was required by LLC to utilize the devices LLC provided. To so suggest is to argue that one must prove that another controlled a certain activity before evidence illustrating that he controlled it can be admitted. We reject the suggestion. Proof that LLC controlled KK (via proof that KK was obligated to use the device) is not a condition precedent to the admissibility of evidence illustrating that LLC controlled KK. And, assuming by some stretch of the imagination that it were, such proof exists at bar; LLC's president testified that it could remove from the site those who did not abide by its safety directives. So, if LLC told KK to use the steel cable and scaffold, KK had to or risk being removed.

We also reject LLC's contention that the limiting instruction provided to the jury was a comment on the weight of the evidence. ⁽⁸⁾ This is so because the particular ground is urged here for the first time contrary to Rule 33.1(a) of the Texas Rules of Appellate Procedure. Furthermore, the instruction does not reasonably tend to suggest anything about the mental impressions or belief of the court nor minimize or place emphasis on any of the evidence. First Nat'l Bank of Amarillo v. Jarnigan, 794 S.W.2d 54, 62 (Tex. App.--Amarillo 1990, writ denied).

Evidence Supporting Compensatory Damages Awarded to Jimmy

Next, the trial court submitted a question to the jury asking it to determine what monies would "fairly and reasonably compensate[] Jimmy Harrison for pain and mental anguish." It answered $500,000. LLC contends that this answer lacks factually sufficient evidentiary support. This is allegedly so because Jimmy's kin "failed to establish through any testimony or evidence whatsoever that Jimmy . . . consciously experienced any pain, suffering or mental anguish." In other words, LLC disputes the award because it believes that the evidence fails to evince that Jimmy was conscious of his ten story fall and its ramifications. We agree in part.

1. Standard of Review

We discussed above the standard of review applicable to claims of factual insufficiency. The parties are referred to it.

Damages for pain and mental anguish are recoverable in suits for personal injury. However, they must be sought for recompense for pain and anguish experienced while conscious. Southern Pacific Transp. Co. v. Luna, 730 S.W.2d 36, 38 (Tex. App.--Corpus Christi 1987, no writ); Burrous v. Knotts, 482 S.W.2d 358, 363 (Tex. Civ. App.--Tyler 1972, no writ). Because the amount to award is not calculable by any mathematical formula, the fact finder enjoys discretion in determining the sum. Saenz v. Fidelity & Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex. 1996). Yet, its discretion is not unbridled. Id.; Burlington Coat Factory Warehouse of El Paso, Inc. v. Flores, 951 S.W.2d 542, 548 (Tex. App.--El Paso 1997, no writ). A jury is not free to simply select any amount which it may care to. Saenz v. Fidelity Guar. Ins. Underwriters, 925 S.W.2d at 614. Rather, the sum derived must be that which fairly and reasonably compensates the injured for undergoing the experience. Id.

In assessing the validity of the jury's finding, our task is twofold. Not only must we peruse the record to determine whether evidence illustrates that the injured experienced compensable pain, suffering, and anguish but also that the amount awarded for experiencing same is reasonable. Id.; Burlington Coat Factory Warehouse of El Paso, Inc. v. Flores, 951 S.W.2d at 548. Whether the complainant suffered a severe physical injury is one indicia which we can consider for pain and anguish presumably accompanying such an injury. Bedgood v. Madalin, 589 S.W.2d 797, 806 (Tex. Civ. App.--Corpus Christi 1979), affirmed in part and reversed and remanded in part on other grounds, 600 S.W.2d 773 (Tex. 1980).

In addition to the nature of the injury, another factor concerns the consciousness of the individual and the duration of the injury's effects. See Gulf States Utilities Co. v. Reed, 659 S.W.2d 849, 855 (Tex. App.--Houston [14^th Dist.] 1983, writ ref'd n.r.e.) (concluding that five seconds of pain inflicted via electrocution supported an award of $10,000); Burrous v. Knotts, supra (reducing the award by $30,000 to $10,000 because the jury did not distinguish between periods of consciousness and unconsciousness). Contemplated within this is consciousness not only of pain and suffering but also of approaching death. Hurst Aviation v. Junnell, 642 S.W.2d 856, 859 (Tex. App.--Fort Worth 1982, no writ). So too are the degree (i.e. severity) and duration of the pain and distress, Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995) (noting that the court must distinguish between shades and degrees in evaluating claims of mental anguish), the extent to which the daily routine of the injured is disrupted, id., and the similarity of the award with those in other cases of import. ⁽⁹⁾ Landreth v. Reed, 570 S.W.2d 486, 490 (Tex. Civ. App.--Texarkana 1978, no writ).

2. Application of Standard

The record reveals that Jimmy fell from the tenth floor, a height approximating 120 to 140 feet from the ground. His colleague saw him fall from the window. Another witness, Ed Smith, heard a yell, looked up, noticed Jimmy within feet of the ground, and saw him land within 20 to 30 feet of Smith's location. Smith concluded that the person who he heard yelling was Jimmy, attempted to call a supervisor, and proceeded to the spot where Jimmy lay. Before arriving, Smith was told to stop because Jimmy was dead.

We are cited to no evidence suggesting that Jimmy was either conscious or even alive at anytime after striking the ground. Nor does our own investigation of the record uncover any. Given this, we have no basis upon which to hypothesize, much less conclude, that Jimmy was either conscious or alive immediately after reaching the ground. Rather, the distance of his fall, the blood spatter, and the manner of his landing would indicate that he was neither alive nor conscious.

In effect, all that can be inferred from this record is that Jimmy was conscious while falling and perceived his fall, as suggested by his yelling. Yet, through the application of physics (a body of mathematics of which we take judicial notice), his perception of the fall and its potential consequence could have lasted no more than 2.7 to 4 seconds. And, given Jimmy's death, whether he will experience disruption in his daily routine matters not.

Thus, the question devolves into one more within the realm of philosophy than jurisprudence and it concerns the amount of money which would reasonably compensate someone who knew that he would be dead within seconds. The youth in Gulf States Utilities suffered approximately five seconds of electrocution before dying. The jury valued those few seconds and the concomitant pain and anguish at $10,000, an amount the appellate court found acceptable. Gulf States Utilities Co. v. Reed, 659 S.W.2d at 855. In Hurst Aviation, wherein the decedent was aware of his descent from the sky for apparently less than a minute, the value was set at $20,000; this sum the appellate court also found acceptable. Hurst Aviation v. Junell, 642 S.W.2d at 859. In Green v. Hale, 590 S.W.2d 231 (Tex. Civ. App.--Tyler 1979, no writ), wherein consciousness of the dire circumstances was brief, the court approved an award of $5,000. Id. at 237-38. In Guzman v. Guajardo, 761 S.W.2d 506 (Tex. App.--Corpus Christi 1988, writ denied), two of three justices thought an award of $600,000 for at least fifteen minutes of pain and suffering was reasonable. Id. at 512.

Conversely, $65,000 was considered an excessive award for one who was conscious while drowning in Landreth. Thus, the court reduced the sum to $35,000. Landreth v. Reed, 570 S.W.2d at 492. Similarly, an award of $40,000 for living ten minutes after the onset of a fire was deemed excessive by $30,000 in Burrous. So, remittitur was ordered.

After considering the sparse evidence of record, the few seconds involved, and the verdicts rendered in other cases, we conclude that some evidence supports the award of damages for pain, suffering, and mental anguish. However, the 2.7 to 4 seconds of mental anguish experienced is factually insufficient to support an award of $500,000. Remittitur is appropriate.

Exemplary Damages and Gross Negligence

Next, LLC posits that the exemplary damages awarded to Jimmy's kin lacked legally and factually sufficient evidentiary support. This is so because they allegedly failed to prove that LLC acted grossly negligent. ⁽¹⁰⁾ We disagree.

1. Standard of Review

We incorporate the standard of review applicable to claims of legal and factual insufficiency expressed supra. For the finding of gross negligence to be supportable, the evidence must satisfy two prongs. First, when viewed objectively from the actor's standpoint, the act or omission must involve an extreme degree of risk, considering the probability and magnitude of the potential harm to others. Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex. 1998). That is, the defendant's acts or omissions must create a grave risk of substantial injury. Universal Servs. Co. v. Ung, 904 S.W.2d 638, 641 (Tex. 1995). Furthermore, this risk of injury created by the defendant's conduct must be more than remote. In Transportation Insurance Co. v. Moriel, 879 S.W.2d 10 (Tex. 1994), the court noted that the misconduct must "greatly increase[] the likelihood" of serious injury. Id. at 22 n.14. In other words, the chance of such harm must be likely, as opposed to remote. Id. at 22; see Mobil Oil Corp. v. Ellender, 968 S.W.2d at 921 (construing the element as requiring proof that the defendant's conduct produced a "likelihood of serious injury"); Universal Serv. Co. v. Ung, 904 S.W.2d at 641 (stating the same).

Under the second prong, the actor must actually be aware of the risk he is creating and nevertheless proceed with his conduct in conscious indifference to the rights, safety, or welfare of others. Mobil Oil Corp. v. Ellender, 968 S.W.2d at 921. Stated differently, the second element obligates the complainant to prove that the defendant knew of the grave peril accompanying his activity but did not care about it. Id.

As can be seen, more than mere negligence is necessary. Again, the actor's behavior must reasonably form a likelihood of serious injury and the likelihood must be known to and, consciously ignored by, the actor. Finally, one may rely upon circumstantial evidence to prove each of these elements. Mobil Oil Corp. v. Ellender, 968 S.W.2d at 921.

2. Application of Standard

a. Legal Sufficiency

i. First Prong -- Conduct Creating Extreme Risk

Jimmy's kin is correct in saying that "it is important to first define the risk" involved. As required by Mobil and Ung, the pertinent risk here is that created or caused by the action or inaction of LLC. Thus, it is not enough to suggest, as do Jimmy's kin, that the risk involved here was that "workers would fall ten stories to their deaths," for that proposition neither considers the duties of LLC nor its acts or omissions in relation to those duties. That is, the risk of falling to one's death is but part of the equation. The remainder addresses whether LLC's conduct was such as to make the chance of falling to one's death likely. The conduct in question pertains to LLC's failure to provide adequate fall protection contrary to its duty to do so. Thus, to satisfy the first prong, more than a scintilla of evidence must exist illustrating that a reasonable person viewing the circumstances from the standpoint of LLC would conclude that the conduct of LLC in failing to provide adequate fall protection created an extreme and likely risk of a worker falling to his death. We now turn to the record to determine if such evidence exists.

To complete the construction project, some of the work had to be performed outside the building by people hanging off the 9^th and 10^th stories. Working against those individuals would be Newton's law of gravity. Furthermore, it was generally understood that gravity coupled with the distance from which the workers would hang made death the likely result of any fall. That falling was not a foreign concept in the construction industry is exemplified by the testimony of LLC's president, who conceded that falls were one of the "top" causes of serious injury or death at construction sites. Another witness called it the "number one killer of construction workers." So too did the president, who had been involved in the construction industry for many years, acknowledge other matters of import. The first concerned his belief that there was no greater hazard to workmen at the site and the second that the failure to use "proper fall protection techniques . . . could expose . . . subcontractor employees to a fall that would result in certain death." Other witnesses, including representatives of LLC, concurred in this assessment.

Though disputed, some expert evidence further illustrates that the devices actually utilized by Jimmy (a lanyard and safety belt) were themselves hazardous or deficient. Had he hung from them, he could have have broken his back or suffocated. That this equipment was being used by Jimmy, without an independent lifeline, was known to LLC, for its supervisor saw him utilizing it.

Other evidence depicts LLC opting to allow each subcontractor to select and implement its own safety measures. It believed that responsibility for the safety of an independent contractor's employees lay with the independent contractor, not LLC. So, safety issues were left to the contractor, even though LLC employed an individual with authority to monitor, regulate, and affect the safety practices of those subcontractors.

In sum, we have before us evidence that LLC remained silent (while having a duty to act) when Jimmy was performing a job 1) at such an altitude that a fall would result in death and 2) with equipment inadequate to protect him from death should he fall. LLC did this while knowing that falls were not uncommon occurrences but rather major causes of death at construction sites. From this evidence, a reasonable person could conclude that LLC's failure to provide adequate fall protection created an extreme and likely risk of death. Thus, legally sufficient evidence supports the first prong.

ii. Second Prong -- Subjective Awareness and Conscious Indifference

As previously mentioned, to satisfy the second prong of Ellender, some evidence must exist illustrating that the defendant knew of the extreme risk accompanying its activity but did not care. We find that such evidence appears of record in several ways, the first of which involves the testimony of LLC's president. Again, he stated that falling was a prime cause of injury, a major hazard to those working at the site, and likely to result in death given the height at which KK's employees would be working. Furthermore, the individual hired by LLC to supervise the construction and the safety measures being utilized saw Jimmy working without an independent lifeline some 120 feet above the ground. This is of import because the LLC safety program required the use of "[l]ifelines, safety belts, and lanyards . . . where there is a danger of falling." (emphasis added). Having seen Jimmy without an independent lifeline and despite LLC's own regulations, LLC's vice-principal said and did nothing to curtail the activity.

That this disregard comported with what could be perceived as a general policy of disregarding safety risks posed to subcontractors finds support in other evidence. For instance, the very same vice-principal alluded to above eschewed meeting with subcontractors to discuss safety measures. Both he and LLC's president simply believed that such matters were not LLC's concern, even though it 1) represented to Methodist that it would have plenary responsibility for the safety of everyone working at the project and 2) it required, via its "Safety Program," that all employees (which included the vice-principal) to insist that fellow employees follow safety rules and practices. From this, one could reasonably infer that LLC consciously opted to forego performing those safety duties (vis safety) which it not only told Methodist it would perform, but also told the jurors at times that it had the power to perform.

Moreover, evidence disclosed that LLC had other equipment which could have made the performance of Jimmy's duties safer. One such device was a swinging stage scaffold. Evidence, though conflicting, indicated that while LLC employees were free to use it, those employed by subcontractors were not. Instead, the latter were given the option to rent it or acquire their own.

From the foregoing, a rational jury could conclude that LLC was not only aware of the grave risk in question but also that it opted to consciously disregard it. Thus, the finding that LLC was grossly negligent enjoys legally sufficient evidentiary support. Our conclusion is not altered by LLC's contention that it exercised some care by its institution of a safety program and retention of purported safety consultants. Reference to such evidence is of little value when the question is one of legal sufficiency. This is so because the standard of review obligates us to consider evidence supporting the verdict, not contradicting it. See Mobil Oil Corp. v. Ellender, 968 S.W.2d at 924 (holding that Mobil's reference to some evidence of care did not affect the court's legal sufficiency analysis).

b. Factual Sufficiency

That there existed evidence contradicting the jury's finding of gross negligence is beyond dispute. As alluded to in the previous paragraph, LLC presented some testimony that it exercised care. Other testimony indicated that it believed the equipment utilized by Jimmy was safe and complied with standards implemented by the Occupational Safety and Health Administration. While this court may not have reached the same conclusion as that of the jury had it been the fact finder, we are unable to say that the verdict was factually insupportable. In other words, the evidence supporting the verdict was not insubstantial or weak. Nor was that contradicting the verdict so overwhelming as to render the verdict clearly wrong or manifestly unjust.

Summary Judgment in Favor of KK

In its last point of error, LLC argues that the trial court erred in granting summary judgment to KK and, thereby, denying it contribution and indemnity against KK. We disagree.

1. Standard of Review

The standard of review for assessing the validity of a summary judgment is well known. We refer the litigants to Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796 (Tex. 1994), for discussion of same.

2. Application of Standard

Upon suit by Jimmy's kin, LLC initiated a cross-claim against KK for contribution and indemnity. It did so based upon paragraph 11.7 of the subcontract. ⁽¹¹⁾ KK moved for summary judgment, arguing that section 408.001 of the Texas Labor Code insulated it from liability and that paragraph 11.7 did not satisfy the express negligence rule. The trial court granted the motion, but did not state the particular grounds upon which it did. Thus, our task is to determine whether either ground supported the court's action. Miller v. Galveston/Houston Diocese, 911 S.W.2d 897, 899 (Tex. App.--Amarillo 1995, no writ).

a. Section 408.001

Section 408.001 of the Labor Code states that the recovery of workers' compensation benefits is the exclusive remedy available to an employee against his employer (assuming that the employer subscribes to the Workers Compensation Act). Tex. Lab. Code Ann. § 408.001(a) (Vernon 1996). Since KK apparently subscribed to the Act, both Jimmy and his kin were barred from suing it for compensatory damages. This bar also had the incidental effect of shielding KK from suit by a third-party under common law concepts of indemnity and contribution. See Varela v. American Petrofina Co. of Texas, Inc., 658 S.W.2d 561, 561-63 (Tex. 1983) (denying a third-party defendant the opportunity to obtain contribution and indemnity from the employer). Yet, the scope of the shield is limited. It does not apply to situations where an employer expressly agreed, in writing, to indemnify the third-party before the mishap giving rise to the need for indemnity occurred. Act of May 5, 1983, 68th Leg., R.S., ch. 131, § 1, 1983 Tex. Gen. Laws 613, 614 (amended 1989, 1993, current version at Tex. Lab. Code Ann. § 417.004 (Vernon 1996)); ⁽¹²⁾ Enserch Corp. v. Parker, 794 S.W.2d 2, 7 (Tex. 1990); Faulk Mgt. Servs. v. Lufkin Indus., Inc., 905 S.W.2d 476, 478-79 (Tex. App.--Beaumont 1995, writ denied); Verson Allsteel Press Co. v. Carrier Corp., 718 S.W.2d 300, 302-303 (Tex. App.--Tyler 1985, writ ref'd n.r.e.). The agreement at bar was such an agreement.

Via paragraph 11.7 of the subcontract, KK expressly committed to "indemnify . . . and defend" LLC " from and against all claims, damages, losses, and expenses . . . arising out of or resulting from" the performance of KK's work. The claims subject to indemnification included those "attributable to bodily injury, sickness, disease, or death" and "caused in whole or in part" by the negligence of KK, "regardless of whether . . . [LLC] caused [it] in part."

That 11.7 was executed before Jimmy fell to his death is undisputed. Equally clear is that it expressly mentions indemnification, the conditions which trigger the duty to indemnify, the party obligated to provide indemnity, and the party to be indemnified. Indeed, the clause at bar is not unlike those in Enserch, Faulk, and Verson which were found to satisfy the statutory indicia. Each illustrated the requisite intent to indemnify in specific terms. That none expressly mentioned that the duty to indemnify encompassed damages arising from injury suffered by an employee of the indemnitor matters not, for same is not necessary. Enserch Corp. v. Parker, 794 S.W.2d at 7-8; Verson Allsteel Press Co. v. Carrier Corp., 718 S.W.2d at 302-303. So, as in Enserch, Verson, and Faulk, "the indemnity language in the contract between" LLC and KK "is sufficient to show that . . . [KK] expressly assumed liability for injuries to its own employees." Enserch Corp. v. Parker, 794 S.W.2d at 8. Yet, this does not end our inquiry.

b. Indemnity and/or Contribution Under Paragraph 11.7

We next assess the scope of paragraph 11.7. In doing so, we immediately note that nothing therein expressly mentions contribution or KK's duty to contribute to the payment of any award. Rather, the clause specifically obligates KK to "indemnify, hold harmless, and defend" LLC. This is of moment because contribution and indemnity are distinct concepts. The former connotes, as stated by the Texas Supreme Court long ago, a proration of liability among joint tortfeasors. Gulf, C. & S. F. Co. v. Galveston, H. & S. A. Co., 18 S.W. 956, 958-59 (Tex. 1892). On the other hand, it is commonly understood that indemnity involves a shift in responsibility for payment of damages, Whitson v. Goodbody's, Inc., 773 S.W.2d 381, 382-83 (Tex. App.--Dallas 1989, writ denied), whereby one pays the entire amount due by another. Gulf, C. & S. F. Co. v. Galveston, H. & S. A. Co., 18 S.W. at 958-59. We conclude, for several reasons, that indemnification (as the term is commonly understood) rather than contribution was what was intended by the parties to the subcontract.

First, the words "indemnify, hold harmless, and defend," when read together, evince an intent to completely shift the entire responsibility for payment to another. Nothing in the paragraph qualifies their scope once the duty to indemnify, hold harmless and defend is triggered. Second, according to paragraph 11.7, the duty arises when, among other things, the injury contemplated is caused by KK, in whole and part, and "regardless of whether it . . . [was] caused in part by a party indemnified hereunder." In other words, KK is allegedly bound to reimburse LLC even for injuries LLC caused, as long as KK also caused them in part. Simply put, there is no proration under these terms; instead, the subcontractor is ultimately responsible for reimbursing LLC for everything. These indicia compel us to hold that the obligation undertaken by KK was nothing short of pure indemnification, as opposed to contribution or some mix of contribution and indemnity.

So, because the subcontract says nothing about contribution and its terms evince nothing of an intent to obligate KK to provide contribution, the only potential right of contribution available to LLC would be that existent outside of the subcontract. Nonetheless, LLC remains without succor in that circumstance, given Varela, which negates the availability of all forms of non-contractual contribution in cases like that at bar. See Dresser Indus., Inc. v. Lee, 880 S.W.2d 750, 752 (Tex. 1993) (reaffirming the proposition that a third-party cannot seek contribution from a subscribing employer to reduce the third-party's responsibility to the employee). Therefore, and as a matter of law, LLC had no right of contribution to assert via its cross-claim against KK, and the trial court did not err in entering summary judgment denying LLC recovery upon the claim.

As to the matter of indemnity, we note the absence of any language expressing the intent, through specific words, that KK would hold LLC harmless from injuries caused by LLC's own negligence. This is required before same can occur. As said by the Supreme Court in Ethyl Corporation v. Daniel Construction Company, "parties seeking to indemnify the indemnitee from the consequences of its own negligence must express that intent in specific terms." 725 S.W.2d 705, 708 (Tex. 1987); Enserch Corp. v. Parker, 794 S.W.2d at 8 (reaffirming this principle, which is known as the express negligence rule). Because paragraph 11.7 said nothing specifically about the negligence of LLC, the express negligence rule was not satisfied. This, in turn, prevented LLC from obtaining indemnity for injuries it caused in whole or part. ⁽¹³⁾ Thus, the trial court did not err in denying LLC indemnification from KK for injuries arising from LLC's actions.

Finally, we reject the suggestion of LLC that it was not attempting to recover indemnity for the consequences of its own acts. The suggestion contradicts the allegations in its cross-claim, where it averred that 1) "[s]hould . . . a jury find any negligence, then Lee Lewis Construction is entitled to indemnity from KK Glass" and 2) "KK Glass should be obligated to defend Lee Lewis Construction and to pay for any and all damages awarded in this case." (emphasis added). In referring to "any" negligence and "any and all damages," LLC clearly wanted KK to pay for everything. In wanting KK to pay for everything, it could hardly be said under any rational interpretation of the pleading that LLC wanted KK to reimburse it only for the damages caused solely by KK.

In addition, since paragraph 11.7 fails to satisfy the express negligence rule, LLC could not seek indemnification for injuries concurrently caused by LLC and KK. Such right of recovery is known as comparative indemnity and must arise via contract satisfying the express negligence rule. Enserch Corp. v. Parker, 794 S.W.2d at 8; Ethyl Corp. v. Daniel Constr. Co., 725 S.W.2d at 707. This left LLC to recovering for injuries solely caused by KK. Yet, matters of sole causation are not the stuff of cross-claims. Rather, they are defensive issues invoked to prevent a plaintiff from recovering against the one asserting that the injuries were solely caused by someone or something else. Indeed, if the injuries at bar were solely caused by KK, then there would be no need for LLC to obtain indemnity, for they could not have been charged against LLC.

Accordingly, the summary judgment granted KK Glass is affirmed. Next, the court suggests, under Texas Rule of Appellate Procedure 46.3, that the $500,000 award recompensing Jimmy Harrison for pain, suffering and mental anguish be remitted by $450,000. Should the sum not be remitted, the judgment (save for the summary judgment granted KK Glass) will be reversed. Should remittitur be timely filed, the judgment will be reformed and affirmed as reformed.

Brian Quinn

Justice

Publish.

1. We say "retained" or "exercised" because the requisite control may be exemplified in either way. That is, it may be reserved by contract or merely exercised by the general contractor sans contract. Welch v. McDougal, 876 S.W.2d 218, 222 (Tex. App.--Amarillo 1994, writ denied). If reserved by agreement, it matters not whether the general contractor actually exercises it, for liability arises from the mere right to exercise it. Campbell v. Adventist Health System / Sunbelt, Inc., 946 S.W.2d 617, 621 (Tex. App.--Fort Worth 1997, no writ).

2.

We note that while the standard of review applicable to claims of legal insufficiency obligates us to focus upon the evidence favoring the jury's verdict, LLC focused on that which contradicted it. This did not comport with its appellate burden.

3.

Incidentally, the superintendent himself agreed that his official duties included the "need to make sure they [the subcontractors] do [their job] safely."

4.

Question one read: "Did Lee Lewis Construction, Inc. retain the right to control safety on the construction project where Jimmy Harrison suffered his fatal fall?" The jury answered "yes."

5.

Because LLC's argument does not concern the foreseeability aspect of causation, we only address the subject of cause in fact.

6.

The other case cited by LLC, Texas Dept. of Corrections v. Jackson, 661 S.W.2d 154 (Tex. App.--Houston [1st Dist.] 1983, writ ref'd n.r.e.), is also distinguishable for the same reason Summers and Hopper are. That is, what precipitated the original accident was of concern there, whereas our case involves the duty to take particular action in the event an accident occurs.

7.

Whether its probative value is outweighed by undue prejudice, see Tex. R. Evid. 403, is not before us.

8.

The trial court told the jury, via the charge, that evidence of subsequent remedial measures was "not to be considered as proof of negligence, but only as evidence of control and for purposes of impeachment."

9.

While the factors we itemized are not exhaustive, we nevertheless reject the notion of Jimmy's kin that the amount of money a reasonable person would take to voluntarily undergo the same incident is pertinent. We do so because it is inherently specious. Simply put, a reasonable person would never opt to fall to his death in exchange for money.

10.

Jimmy's kin were awarded exemplary damages of $5,000,000. In contesting that award, LLC merely attacks the underlying finding of gross negligence. It does not argue that the amount awarded was excessive. Thus, we need not analyze the validity of the sum itself pursuant to the edict of Ellis County State Bank v. Keever, 915 S.W.2d 478 (Tex. 1995).

11.

The provision states:

To the fullest extent permitted by law, Subcontractor shall indemnify, hold harmless, and defend Contractor . . . from and against all claims, damages, losses, and expenses . . . arising out of or resulting from the performance of Subcontractor's Work . . . provided that any such claim, damage, loss, or expense (a) is attributable to bodily injury, sickness, disease, or death . . . and (b) is caused in whole or in part by any negligent act or omission of Subcontractor or anyone directly or indirectly employed by it or anyone for whose acts it may be liable . . . regardless of whether it is caused in part by a party indemnified hereunder.

12.

The statute read:

If an action for damages on account of injury to or death of an employee of a subscriber is brought . . . against a person other than the subscriber . . . and if such action results in a judgment against such other person . . . the subscriber . . . shall have no liability to reimburse or hold such other person harmless on such judgment . . . nor shall the subscriber . . . have any tort or contract liability for damages to such other person because of such judgment . . . in the absence of a written agreement expressly assuming such liability, executed by the subscriber prior to such injury or death.

13.

Though no case we have found clearly states it, we nevertheless interpret Ethyl and its progeny as requiring the parties to actually include the word "negligence" or some synonym thereof in the indemnification agreement before the express negligence rule is satisfied. We gather this from that portion of Ethyl wherein the Supreme Court admonished parties to evince the pivotal intent through "specific terms." Ethyl Corp. v. Daniel Const. Co., 725 S.W.2d 705, 708 (Tex. 1987); see Houston Lighting & Power Co. v. Atchison, Topeka & Santa Fe Ry. Co., 890 S.W.2d 455, 457-59 (Tex. 1994) (applying the express negligence rule to indemnification for claims involving strict liability and holding that the rule was not satisfied because the parties did not mention the intent to cover strict liability in "specific terms"). So too is this interpretation of the rule the only way in which the holdings of such cases as Glendale Constr. Servs., Inc. v. Accurate Air Sys., Inc., 902 S.W.2d 536 (Tex. App.--Houston [1^st Dist.] 1995, writ denied), can be explained. In Glendale, the parties contemplated indemnification even for injuries caused by the indemnitee. Yet, the word "negligence" went unmentioned. One would think that obligating the indemnitor to reimburse the indemnitee for injuries caused by the indemnitee would be sufficient indication of an intent to include the negligence of the indemnitee. But, the court said no and we can only explain it by concluding that the word "negligence" must be stated.