Maxim Crane Works, L.P. v. Zurich American Insurance Company

Supreme Court of Texas
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No. 21-0727
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Maxim Crane Works, L.P.,
Appellant,
v.
Zurich American Insurance Company,
Appellee
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On Certified Question from the
United States Court of Appeals for the Fifth Circuit
═══════════════════════════════════════
Argued December 2, 2021
JUSTICE BUSBY delivered the opinion of the Court.
The United States Court of Appeals for the Fifth Circuit has
requested our guidance on the scope of the so-called “employee
exception” to the Texas Anti-Indemnity Act (TAIA). In the construction
context, the TAIA generally prohibits one party (the indemnitor) from
indemnifying or insuring another party (the indemnitee) against a claim
caused by the negligence or other fault of the indemnitee or its employees
or agents. See TEX. INS. CODE § 151.102. But an exception permits the
indemnitor to indemnify or insure the indemnitee against a claim for
the bodily injury or death of the indemnitor’s employee, agent, or
subcontractor. See id. § 151.103. The question before us is whether
employee status under this exception is affected by certain provisions of
the Texas Workers’ Compensation Act (TWCA).
Here, a general contractor’s employee injured in a crane accident
obtained a negligence judgment in Texas state court against the
subcontractor that operated the crane (Berkel) and the company that
leased it the crane (Maxim). Berkel had provided Maxim with coverage
as an additional insured, making Berkel an indemnitor and Maxim an
indemnitee for TAIA purposes. Maxim settled with the injured worker
and unsuccessfully sought reimbursement from Berkel’s insurer
(Zurich). Berkel appealed and the court of appeals reversed the
judgment against it, holding that the injured worker and Berkel were
“statutory co-employees” of the general contractor under the TWCA,
which therefore provided the worker’s exclusive remedy. Berkel & Co.
Contractors, Inc. v. Lee, 543 S.W.3d 288, 296 (Tex. App.—Houston [14th
Dist.] 2018), aff’d in part, rev’d in part on other grounds, 612 S.W.3d 280(Tex. 2020).
In this separate suit, which was removed to federal court, Maxim
and Zurich dispute whether the additional-insured coverage is
enforceable. The resolution of their dispute turns on whether the
injured worker is considered an “employee” of Berkel, the indemnitor,
under TAIA section 151.103. Specifically, the Fifth Circuit asks us
whether that exception “allows additional insured coverage when an
injured worker brings a personal injury claim against the additional
insured (indemnitee), and the worker and the indemnit[or] are deemed
‘co-employees’ . . . for purposes of the TWCA.”1
We answer no. Deeming an injured worker to be a co-employee
with the indemnitor for purposes of the TWCA does not make that
worker an employee of the indemnitor under the plain language of the
TAIA. Because the Texas Legislature expressly separated these two
statutory schemes, the TWCA does not affect the enforceability of an
additional-insured provision under the TAIA.
BACKGROUND
A. The parties and their insurance policies
The parties have established the relevant facts by stipulation.
Skanska USA Building, Inc. was the general contractor on a 2013
construction project to build a large office campus in Houston. Skanska
offered a contractor-controlled insurance program (CCIP) that included
(1) workers’ compensation coverage and (2) commercial general liability
coverage under a policy (Skanska CGL Policy) issued by appellee Zurich
American Insurance Company.
Skanska required each subcontractor on the project to enroll in
its CCIP as a condition of performing work on the jobsite. But Skanska’s
CCIP excluded certain entities from coverage “[a]t the discretion of
1 We note (and the parties agree) that there appears to be a
typographical error in the certified question, the unaltered version of which
requests guidance on the operation of section 151.103 when “the worker and
the indemnitee are deemed ‘co-employees’ of the indemnitor for purposes of the
TWCA.” As we explain further below, the injured worker in this dispute was
previously deemed the co-employee of the indemnitor (Berkel) for purposes of
the TWCA but was never deemed a co-employee of the indemnitee (Maxim).
Skanska or subject to State regulations,” including “[s]ubcontractors,
and any of their respective sub-subcontractors, who do not perform any
actual labor on the Project Site” as well as “[v]endors, suppliers . . . and
others who merely transport, pickup, deliver, or carry materials,
personnel, parts or equipment or any other items or persons to or from
the Project Site.”
Skanska hired Berkel & Company Contractors, Inc. as a
subcontractor for the project. Although Berkel enrolled in Skanska’s
CCIP as required, Berkel also had its own commercial general liability
policy issued by Zurich (Berkel CGL Policy).
Berkel then leased a crane from appellant Maxim Crane Works,
L.P. for use on the construction project. Berkel and Maxim entered into
a Bare Rental Agreement (the Equipment Lease) under which Berkel
agreed to be responsible for compliance with all applicable laws,
regulations, and ordinances in respect to the operation and maintenance
of the crane while in Berkel’s possession. Berkel also agreed to name
Maxim as an additional insured under Berkel’s CGL policy, with limits
of liability not less than $2 million for each occurrence.
Although Maxim qualified as an “Additional Insured” under the
Berkel CGL Policy, subject to any applicable provisions or exclusions,
Maxim also had its own commercial general liability policy issued by
Zurich (Maxim CGL Policy). Maxim did not enroll in Skanska’s CCIP.
B. Maxim’s settlement of the state-court suit against it
and Zurich’s refusal to cover Maxim under Berkel’s
policy
On September 30, 2013, a Berkel employee was operating
Maxim’s crane at the construction site when the crane boom collapsed.
Part of the crane crushed the leg of Skanska employee Tyler Lee, which
ultimately had to be amputated above the knee.
Lee applied for and received workers’ compensation benefits
under Skanska’s CCIP. Lee and his wife then sued Berkel, Maxim, and
other defendants in Texas state court, alleging various theories of
negligence. Although no employee of Maxim was present on the
construction site at the time of the accident, the Lees alleged that Maxim
was independently liable for its own negligence.
Maxim sought coverage under the Berkel CGL policy, requesting
defense, indemnity, and additional-insured status with respect to the
Lees’ claims. Zurich denied coverage based on sections 151.102 through
151.104 of the TAIA, explaining that “the indemnity provision(s) in the
[Equipment Lease] is void and unenforceable because this loss involved
an employee of the general contractor, Skanska.”
Maxim then filed cross-claims against Berkel in the Lees’ state-
court action, alleging breach of contract and seeking defense, indemnity,
and contribution under Texas statutory and common law. Maxim
alleged that Berkel breached the Equipment Lease by, among other
things,2 “refusing to defend and indemnify MAXIM” and “refusing to
meet its contractual obligation to [e]nsure that MAXIM was provided
coverage as an additional insured under Berkel’s insurance policy(ies).”
2 Maxim also alleged that Berkel breached the Equipment Lease by:
failing to operate the crane safely and in accordance with its operator’s manual,
OSHA and ANSI standards, and other applicable laws and regulations; failing
to ensure the crane was operated by experienced and competent persons;
operating the crane in excess of manufacturer safety requirements and rated
load capacities; and subjecting the crane to careless and needlessly rough
usage.
The Lees’ suit was tried before a jury. Although Maxim requested
that the jury be asked whether Berkel breached the lease, the trial court
sustained Berkel’s objection to including the question in the charge. The
jury found both Maxim and Berkel negligent and awarded the Lees
actual damages of $35,443,006. The jury placed 90% of the
responsibility on Berkel and 10% on Maxim.
After trial but prior to final judgment, the Lees and Maxim
reached a settlement for $3,444,300.60. Zurich paid the Lees that
amount under the Maxim CGL Policy and Maxim reimbursed Zurich for
$3 million of the settlement costs, per the deductible endorsement in the
policy. Zurich also billed Maxim $824,839.38 for defense costs, which
Maxim reimbursed.
Maxim filed a motion for entry of judgment on its cross-claims
against Berkel. The trial court denied the motion, concluding that
“pursuant to the jury’s findings as to the negligence questions in the
Court’s Jury Charge, and Chapter 151 of the Texas Insurance Code,
Maxim is not entitled to reimbursement of [its] Defense Fees, Costs, and
Expenses of and from Berkel.” The court ultimately “render[ed]
judgment for Berkel against Maxim on Maxim’s Cross Action.”
Both Berkel and Maxim appealed the trial court’s judgment. The
Fourteenth Court of Appeals reversed the judgment against Berkel,
holding that the workers’ compensation scheme provided the Lees’
exclusive remedy. Berkel & Co., 543 S.W.3d at 295–96.
The TWCA provides that recovery of workers’ compensation
benefits is a covered employee’s exclusive remedy against his employer
and co-employees for work-related injury. See TEX. LAB. CODE
§ 408.001(a). Although Berkel “is not Lee’s actual employer or co-
employee,” the court of appeals explained that section 406.123 of the
TWCA “allow[s] the general contractor to be deemed the statutory
employer of the subcontractor and the subcontractor’s employees ‘[only]
for purposes of the workers’ compensation laws of this state’” if the
general contractor has agreed in writing to provide them with workers’
compensation insurance. Berkel & Co., 543 S.W.3d at 296 (quoting TEX.
LAB. CODE § 406.123(e)). “Thus, for purposes of the [TWCA], Skanska is
Berkel’s statutory employer, and Lee, as Skanska’s actual employee, is
Berkel’s statutory co-employee.” Id. “As a co-employee [of Lee], Berkel
[was] entitled to rely on the [TWCA’s] exclusive-remedy provision,” and
“the trial court erred by rendering judgment against Berkel on the
findings that Berkel was negligent and grossly negligent.” Id.
The court of appeals affirmed the trial court’s judgment against
Maxim in a separate opinion without reaching the merits of Maxim’s
TAIA argument. See Maxim Crane Works, L.P. v. Berkel & Co.
Contractors, Inc., No. 14-15-00614-CV, 2016 WL 4198138 (Tex. App.—
Houston [14th Dist.] Aug. 9, 2016, pet. denied).3 Maxim subsequently
filed a petition for review in this Court, which we denied.
C. Maxim’s coverage suit against Zurich
In April 2018, Maxim made another demand on Zurich for
coverage as an additional insured under Berkel’s CGL Policy, seeking
3 Because Maxim failed to provide a complete reporter’s record or clerk’s
record, the court of appeals concluded that the record Maxim had provided was
inadequate to show preservation of error or evaluate any harm to Maxim.
Maxim, 2016 WL 4198138, at *1 & n.3.
“reimbursement of [the] defense costs [Maxim] incurred in defending the
underlying lawsuit . . . and reimbursement of the indemnity monies
used to settle the underlying lawsuit, post-verdict.” Zurich denied
coverage again for the same reasons it asserted in response to Maxim’s
prior demand.
Maxim then sued Zurich in state court, seeking coverage under
the Berkel CGL Policy. Zurich removed the suit to federal court and the
parties agreed to file cross-motions for summary judgment with a joint
stipulation of facts.
The federal district court concluded that absent an exception, the
TAIA applies to the Equipment Lease and to the Berkel CGL Policy’s
designation of Maxim as an additional insured. See Maxim Crane
Works, L.P. v. Zurich Am. Ins. Co., 392 F. Supp. 3d 731, 740 (S.D. Tex.
2019). Rejecting Maxim’s suggestion that the terms “co-employee” and
“co-employer” are interchangeable under the TAIA and TWCA, the
district court concluded that the TAIA’s employee exception was
inapplicable and therefore granted summary judgment for Zurich,
dismissing Maxim’s claims with prejudice. Id. at 745–46.
Maxim appealed the district court’s decision and asked the Fifth
Circuit to certify the TAIA question to this Court, which it did. See
Maxim Crane Works, L.P. v. Zurich Am. Ins. Co., 11 F.4th 345 (5th Cir.
2021). We accepted the question. See TEX. CONST. art. V, § 3–c(a); TEX.
R. APP. P. 58.1.
ANALYSIS
I. Applicable law and principles of statutory interpretation
The TAIA’s central provision generally prohibits indemnification
provisions in “construction contracts”4 and certain related agreements:
Except as provided by Section 151.103, a provision in a
construction contract, or in an agreement collateral to or
affecting a construction contract, is void and unenforceable
as against public policy to the extent that it requires an
indemnitor to indemnify, hold harmless, or defend a party,
including a third party, against a claim caused by the
negligence or fault, the breach or violation of a statute,
ordinance, governmental regulation, standard, or rule, or
the breach of contract of the indemnitee, its agent or
employee, or any third party under the control or
supervision of the indemnitee, other than the indemnitor
or its agent, employee, or subcontractor of any tier.
TEX. INS. CODE § 151.102. In practice, this provision prohibits Entity A
from requiring Entity B to indemnify Entity A against the consequences
of the negligence of Entity A, Entity A’s agents, or Entity A’s employees.
But the provision leaves Entity A free to provide voluntarily what it is
precluded from requiring of Entity B. In other words, section 151.102
does not prevent Entity A from providing the same indemnification—
indemnification against the consequences of the negligence of Entity A,
Entity A’s agents, or Entity A’s employees—to Entity B.
4 See TEX. INS. CODE § 151.001(5) (defining “construction contract” to
include “a contract, subcontract, or agreement . . . for the furnishing of material
or equipment for, a building, structure, appurtenance, or other improvement
to or on public or private real property”).
The TAIA likewise limits the enforceability of certain provisions
regarding additional-insured coverage:
Except as provided by Subsection (b), a provision in a
construction contract that requires the purchase of
additional insured coverage, or any coverage endorsement,
or provision within an insurance policy providing
additional insured coverage, is void and unenforceable to
the extent that it requires or provides coverage the scope of
which is prohibited under this subchapter for an
agreement to indemnify, hold harmless, or defend.
Id. § 151.104(a). Thus, a provision requiring additional-insured
coverage for certain types of claims will be void under section 151.104 of
the TAIA if an agreement to indemnify against those claims would be
void under section 151.102.
The TAIA also includes an exception to these general prohibitions
that allows an indemnitor to provide indemnity or additional-insured
coverage against claims by its employees, agents, and subcontractors.
That exception provides:
Section 151.102 does not apply to a provision in a
construction contract that requires a person to indemnify,
hold harmless, or defend another party to the construction
contract or a third party against a claim for the bodily
injury or death of an employee of the indemnitor, its agent,
or its subcontractor of any tier.
Id. § 151.103.5
5 In addition to the exception at issue here, the TAIA contains several
exclusions for certain types of agreements and provisions. See TEX. INS. CODE
§ 151.105.
Here, the jury considering the Lees’ claims for personal injury
found Maxim negligent and partially responsible for Lee’s harm. Under
TAIA sections 151.102 and 151.104, therefore, any provision in the
Equipment Lease or the Berkel CGL Policy that requires Berkel or
Zurich to insure Maxim against claims caused by Maxim’s own
negligence would be void. The parties agree that Zurich’s liability
hinges on whether the TAIA’s employee exception applies to the Lees’
claims—that is, on whether Lee was “an employee of the indemnitor,”
Berkel. Id. All parties agree that Lee—who worked for Skanska—is not
Berkel’s “employee” under the common, ordinary meaning of that term.
But Maxim contends that we should construe “employee” in section
151.103 to include any person or entity that the TWCA would treat as
an employee of the indemnitor.
“Statutory construction is a question of law for the court to
decide.” Tex. Dep’t of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex.
2002). “We review issues of statutory construction de novo.” Tex. Lottery
Comm’n v. First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex.
2010). “When construing a statute, our primary objective is to
determine the Legislature’s intent which, when possible, we discern
from the plain meaning of the words chosen.” In re Estate of Nash, 220
S.W.3d 914, 917 (Tex. 2007); see also City of LaPorte v. Barfield, 898
S.W.2d 288, 292 (Tex. 1995) (“Legislative intent remains the polestar of
statutory construction.”).
“Ordinarily, the truest manifestation of what legislators intended
is what lawmakers enacted, the literal text they voted on.” Alex
Sheshunoff Mgmt. Servs., L.P. v. Johnson, 209 S.W.3d 644, 651 (Tex.
2006); see also Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996
S.W.2d 864, 866 (Tex. 1999) (“[W]hen we stray from the plain language
of a statute, we risk encroaching on the Legislature’s function to decide
what the law should be.”); Simmons v. Arnim, 220 S.W. 66, 70 (Tex.
1920) (“Courts must take statutes as they find them. . . . [T]hey must
find [the statute’s] intent in its language, and not elsewhere.”). “If a
statute is clear and unambiguous, we apply its words according to their
common meaning without resort to rules of construction or extrinsic
aids.” In re Estate of Nash, 220 S.W.3d at 917; see also Fitzgerald, 996
S.W.2d at 865–66 (“[I]f a statute is unambiguous, rules of construction
or other extrinsic aids cannot be used to create ambiguity.”).
“We use definitions prescribed by the Legislature and any
technical or particular meaning the words have acquired . . . .” City of
Rockwall v. Hughes, 246 S.W.3d 621, 625–26 (Tex. 2008). Otherwise,
“[w]ords not statutorily defined bear their common, ordinary meaning
unless a more precise definition is apparent from the statutory context
or the plain meaning yields an absurd result.” Fort Worth Transp. Auth.
v. Rodriguez, 547 S.W.3d 830, 838 (Tex. 2018); see also Tex. Lottery
Comm’n, 325 S.W.3d at 635 (“We rely on the plain meaning of the text
as expressing legislative intent unless a different meaning is supplied
by legislative definition or is apparent from the context, or the plain
meaning leads to absurd results.”).
II. The TWCA does not affect the ordinary meaning of
“employee” in the TAIA exception.
Applying these principles to section 151.103’s employee
exception, we observe that the Legislature did not define “employee” in
the TAIA. We agree with the parties that Lee, who worked for general
contractor Skanska, is not the “employee” of subcontractor Berkel under
the common, ordinary meaning of that term as defined in the
dictionary.6 Ordinarily, this conclusion would end our inquiry. But
because Maxim contends that the ordinary meaning is inconsistent with
the statutory scheme, we must also consider whether “a more precise
definition is apparent from the statutory context or the plain meaning
yields an absurd result.” Fort Worth Transp. Auth., 547 S.W.3d at 838.
Relying on statements made as part of the legislative process,
Maxim argues that the Legislature’s primary purpose in enacting the
TAIA was to prevent “cram down” indemnification—that is, prevent
upper-tier contractors from using superior bargaining power to “forc[e]
their subcontractors to accept crippling indemnification obligations . . .
without either control over the operations of the jobsite or the means to
obtain sufficient insurance coverage.” Maxim argues that as an
equipment supplier, it had no such power here.
Maxim also emphasizes the similarity between the exception in
section 151.103 and the operation of a “knock-for-knock” indemnity
provision, under which contracting parties accept financial
responsibility for the personal injury claims of their own employees even
if the injury is due to the fault or negligence of other parties to the
contract. Maxim asserts that knock-for-knock indemnity is common in
the construction industry due to the prevalence of “over actions” in
6 See, e.g., Employee, BLACK’S LAW DICTIONARY 662 (11th ed. 2019)
(defining “employee” as “[s]omeone who works in the service of another person
(the employer) under an express or implied contract of hire, under which the
employer has the right to control the details of work performance”).
which an employee sues another party for contributory negligence.
Maxim contends that construing “employee” in section 151.103 to
include “co-employee” would allow indemnity for such actions without
frustrating the primary purpose of the TAIA.
We reject Maxim’s arguments for expanding the employee
exception beyond the plain meaning of the enacted text of section
151.103. Contrary to Maxim’s position, no alternative definition of
employee is “apparent from the context” of either the TWCA or the
TAIA. Cadena Comercial USA Corp. v. TABC, 518 S.W.3d 318, 325
(Tex. 2017).
Under the TWCA, a “general contractor and a subcontractor may
enter into a written agreement under which the general contractor
provides workers’ compensation insurance coverage to the subcontractor
and the employees of the subcontractor.” TEX. LAB. CODE § 406.123(a).
Entering into such an agreement “makes the general contractor the
employer of the subcontractor and the subcontractor’s employees only
for purposes of the workers’ compensation laws of this state.” Id.
§ 406.123(e).
Section 406.123 “offers incentives to general contractors to
provide workers’ compensation coverage broadly to work site
employees,” Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 444
(Tex. 2009), by deeming the general contractors “statutory employer[s]
of the subcontractor’s employees,” HCBeck, Ltd. v. Rice, 284 S.W.3d 349,
352 (Tex. 2009). “Such an employer is immune from claims brought by
a subcontractor’s employee because the employee’s exclusive remedy is
his workers’ compensation benefits.” Id. In other words, the TWCA
“specifically protects contractors—who are not direct employers of
subcontractors’ employees—by allowing them to assert as a statutorily
deemed employer the exclusive remedy defense.” Entergy Gulf States,
Inc., 282 S.W.3d at 444.
Maxim complains that there is no reason why “employees and co-
employees would be treated the same for tort immunity purposes, but
completely differently under the TAIA’s Employee Exception.” But as
we have previously recognized, even the TWCA itself “defines the terms
‘employee’ and ‘employer’ in different ways depending on the context.”
TIC Energy & Chem., Inc. v. Martin, 498 S.W.3d 68, 77 (Tex. 2016).
Maxim has not pointed to, and we have not identified, any
statutory text that would support applying TWCA section 406.123(e) in
the TAIA context. To the contrary, by its own terms, this section of the
TWCA modifies the relationship between a general contractor and the
employees of a subcontractor “only for purposes of the workers’
compensation laws of this state.” TEX. LAB. CODE § 406.123(e) (emphasis
added). Nor is there any language in the TAIA to suggest that any terms
left undefined should conform to a TWCA definition of those terms. For
its part, the TAIA clarifies that it “does not affect . . . the benefits and
protections under the workers’ compensation laws of this state.” TEX.
INS. CODE § 151.105(5). Thus, the available textual indications of
legislative intent oppose importing TWCA section 406.123(e) into the
TAIA.
Moreover, the terms “co-employee” and “co-employer” are merely
the labels courts have used to describe an employment relationship that
section 406.123(e) has statutorily expanded for workers’ compensation
purposes. Neither term appears in the text of the TWCA or the TAIA.
We decline to rely on courts’ attempts to describe the practical effect of
section 406.123(e) as a basis for expanding that effect to other statutory
schemes. Although subcontractors of different contracting tiers may be
both “co-employer” and “co-employee” to each other in some instances,
see, e.g., Austin Bridge & Rd., LP v. Suarez, 556 S.W.3d 363, 384 (Tex.
App.—Houston [1st Dist.] 2018, pet. denied), we reject Maxim’s
invitation to collapse all tiers of contractors and subcontractors such
that the terms are always interchangeable.
In any event, Maxim’s argument would fail on its own terms. At
most, TWCA section 406.123(e) would impact the relevant employment
relationships in the following two ways. First, the section would make
Skanska the employer of Berkel, in turn making Berkel the “co-
employee” of Lee. Second, the section would make Skanska the
employer of Berkel’s employees, which in turn makes Berkel and
Skanska “co-employers” of Berkel’s employees. As the federal district
court correctly recognized, neither of these effects warrants treating
Berkel as the employer of Skanska’s employees such that Berkel and
Skanska would be deemed “co-employers” of Lee. See Maxim Crane
Works, 392 F. Supp. 3d at 744–45. Thus, even if section 406.123 were
applicable in the TAIA context (which it is not), the Lees’ claims against
Maxim would still fall outside the scope of the TAIA employee exception.
Maxim also argues that “the mere fortuity of where the crane
landed should not alter Zurich’s obligation to provide coverage.” Such
public policy arguments do not approach the level of an absurd result
that could affect our construction of the statute.
As explained above, section 151.102 primarily blocks enforcement
of an obligation to indemnify another party or its employees for their
fault, but it allows the obligor to indemnify others voluntarily against
the obligor’s own fault. Because the obligor’s choice is voluntary, there
is no concern about cram-down indemnification. Furthermore, no
indemnification is occurring here at all—cram-down or otherwise.
Voiding the additional-insured provision in the Berkel CGL Policy does
not require Maxim to pay for anyone else’s negligence because, according
to the jury, the portion of the Lees’ damages that Maxim must pay is
attributable to its own negligence.
Thus, Maxim’s absurdity argument boils down to a complaint that
it is unfair to subject Maxim alone to tort liability for Lee’s injury when
other responsible parties are protected by the TWCA’s exclusive remedy
provision. But that protection does not derive from the TAIA employee
exception; it stems from the TWCA’s provision of “reciprocal benefits to
subscribing employers and their employees.” TIC Energy & Chem., Inc.,
498 S.W.3d at 72. By way of illustration, if Berkel had been given the
option and elected not to enroll in Skanska’s CCIP, Berkel would not
have been entitled to assert the exclusive remedy defense. Conversely,
although the parties dispute the degree of Maxim’s relative bargaining
power, Maxim does not dispute that neither the TWCA nor the TAIA
prohibited Skanska from allowing equipment vendors like Maxim to
participate in Skanska’s CCIP and thereby entitle them to assert the
exclusive remedy defense as well.
Thus, any disparate treatment of Maxim and Berkel under the
TAIA is not an absurd result, but rather the logical consequence of
Skanska’s decision to exclude equipment vendors like Maxim from
enrolling in its CCIP. Cf. Etie v. Walsh & Albert Co., 135 S.W.3d 764,
768 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) (“We hold that
the Act’s deemed employer/employee relationship extends throughout
all tiers of subcontractors when the general contractor has purchased
workers’ compensation insurance that covers all of the workers on the
site.” (emphasis added)). If anything, Maxim’s and Zurich’s arguments
about the relative bargaining power of Maxim and Berkel—or of Maxim
and Skanska—only serve to underscore the extent to which questions of
public policy invariably play a role in determining which party to a
construction contract had superior bargaining power. When
interpreting a statute, courts do not resolve such policy-laden questions
or speculate as to the operative criteria for doing so in the absence of any
instruction from the Legislature.
CONCLUSION
Because Maxim has failed to identify any objective indications
that the Legislature did not intend for the ordinary meaning of employee
to govern, we decline to consider Maxim’s extrinsic sources as evidence
of the purpose and object of the TAIA. See Fitzgerald, 996 S.W.2d at
865–66 (“[I]f a statute is unambiguous, rules of construction or other
extrinsic aids cannot be used to create ambiguity.”). We therefore hold
that the word “employee” in section 151.103 of the TAIA bears its
common, ordinary meaning, which is not affected by whether the
indemnitor and injured employee are considered co-employees for
purposes of the TWCA. We answer the certified question no.
J. Brett Busby
Justice
OPINION DELIVERED: March 4, 2022