A.S. Horner, Inc. v. Rafael Navarrette

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
A.S. HORNER, INC., § No. 08-18-00044-CV
Appellant, § Appeal from the
v. § 384th District Court
RAFAEL NAVARRETTE, § of El Paso County, Texas
Appellee. § (TC# 2015DCV3144)
OPINION
Appellant A.S. Horner, Inc. (“Horner”) appeals the denial of its motion for summary
judgment seeking dismissal of claims brought against it by Appellee Rafael Navarrette. Horner
sought summary judgment on the ground that it is exempted from liability for Navarrette’s injuries
pursuant to section 97.002 of the Texas Civil Practice and Remedies Code. Because the controlling
issue solely presents a question of law, we granted permission to Horner to file this interlocutory
appeal. See TEX. R. APP. P. 28.3; TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(d).
BACKGROUND
Rafael Navarrette sued Horner, the State of Texas Department of Transportation
(“TXDOT”), and the County of El Paso for injuries he sustained while working.1 At the time of
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The trial court dismissed Navarrette’s claims against the State and the Texas Department of Transportation
the incident, Navarrette—a firefighter-paramedic—was on duty and responding to a multi-vehicle
crash that occurred in the middle of the night on Loop 375. Navarrette’s suit alleged that, “[w]hile
between the barricades, on a defectively designed and installed cement catwalk without restraining
railings he fell 20 to 30 feet through a 3 1/2 or 4 feet opening.” As a result of his injuries, Navarrette
asserted claims pursuant to premises liability based on a dangerous condition on the road or
property, and alternatively, based on theories of negligence.
It is undisputed that Horner constructed the overpass from which Navarrette fell, and that
it had completed the construction some seven weeks prior to that incident. Ricardo Romero, the
TXDOT area engineer charged with ensuring that Horner’s work was performed in compliance
with TXDOT’s contract documents, testified the overpass and ramp were constructed as designed
and planned.
In answer to Navarrette’s claims, Horner asserted, among other defenses, that Navarrette’s
claims against it were barred by section 97.002 of the Texas Civil Practice and Remedies Code.
See TEX. CIV. PRAC. & REM. CODE ANN. § 97.002. As discussed in further detail below, section
97.002 provides that if, at the time of a personal injury, property damage, or death, a contractor,
who constructs or repairs a highway, road, or street for TXDOT, is in compliance with contract
documents—material to the condition or defect that was the proximate cause of the personal injury,
property damage, or death—such contractor is not liable to a claimant for those injuries arising
from the performance of the construction or repair. See id. § 97.002. After a period of discovery,
and based on section 97.002, Horner moved for summary judgment of Navarrette’s claims against
(collectively “TXDOT”), and the County. Navarrette later filed a bill of review seeking to reinstate his claims against
TXDOT. The court denied TXDOT’s motion to dismiss the bill of review. That denial is the subject of appeal number
08-18-00017-CV, styled State of Texas and Texas Department of Transportation v. Rafael Navarrette.
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it. In support of its motion, Horner provided evidence that it was a contractor to which section
97.002 applies and proof that it performed its construction work in compliance with TXDOT’s
plans.
Navarrette did not dispute Horner’s status as TXDOT’s contractor or its assertion that its
construction complied with TXDOT’s contract documents. Rather, he argued that section 97.002
was inapplicable to this case because his injuries did not “arise from the performance of the
construction or repair[,]” since Horner’s work was not ongoing but rather completed prior to the
incident. Said differently, Navarrette asserted the statute only protects contractors from claims for
injuries sustained during the construction process, but not for claims of injuries sustained after
construction is completed.
On January 14, 2018, the trial court signed an order denying Horner’s motion for summary
judgment. Horner then filed a motion for entry of an amended order to permit it to pursue an
interlocutory appeal. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(d). The court signed an
amended order denying Horner’s motion for summary judgment, stating as the ground for that
denial that section 97.002 does not apply because construction was completed prior to the injury.
The trial court found the statutory requisites for an interlocutory appeal were present and, thus,
granted Horner permission to file an interlocutory appeal. This Court followed suit and permitted
this appeal. See TEX. R. APP. P. 28.3.
DISCUSSION
The sole issue on appeal is whether section 97.002 applies only in the context of active
construction or whether it also shields qualified contractors from liability for injuries sustained
after construction is completed.
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Standard of Review
Summary judgments are reviewed de novo. Mann Frankfort Stein & Lipp Advisors, Inc. v.
Fielding, 289 S.W.3d 844, 848 (Tex. 2009); Provident Life & Accident Ins. Co. v. Knott, 128
S.W.3d 211, 215 (Tex. 2003). A party moving for traditional summary judgment bears the burden
of establishing that there is no genuine issue of material fact and that it is entitled to judgment as
a matter of law. Mann, 289 S.W.3d at 848; TEX. R. CIV. P. 166a(c). “[A] defendant who
conclusively negates at least one essential element of a cause of action or conclusively establishes
all the elements of an affirmative defense is entitled to summary judgment.” KCM Fin. LLC v.
Bradshaw, 457 S.W.3d 70, 79 (Tex. 2015).
Issues of statutory construction are also reviewed de novo. Creative Oil & Gas, LLC v.
Lona Hills Ranch, LLC, 591 S.W.3d 127, 132 (Tex. 2019); Adams v. Starside Custom Builders,
LLC, 547 S.W.3d 890, 894 (Tex. 2018).
Applicable Law
The Supreme Court of Texas has cautioned that courts must construe statutes “as written”
and must “refrain from rewriting text that lawmakers chose.” Creative Oil & Gas, 591 S.W.3d at
133 (quoting Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 443 (Tex. 2009)). “This
means enforcing ‘the plain meaning of the text unless a different meaning is supplied by statutory
definition, is apparent from the context, or the plain meaning would lead to an absurd or
nonsensical result.’” Id. (quoting Beeman v. Livingston, 468 S.W.3d 534, 538 (Tex. 2015)). And,
while a reviewing court must consider the specific statutory language at issue, it must do so in the
context of the statute as a whole, not as an isolated provision. KMS Retail Rowlett, LP v. City of
Rowlett, 593 S.W.3d 175, 183 (Tex. 2019); TGS–NOPEC Geophysical Co. v. Combs, 340 S.W.3d
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432, 439 (Tex. 2011).
Courts are not to consider “legislative history or other extrinsic aides to interpret an
unambiguous statute because the statute’s plain language most reliably reveals the legislature’s
intent.” Tex. Health Presbyterian Hosp. v. D.A., 569 S.W.3d 126, 135-36 (Tex. 2018). Neither
party contends that section 97.002 is ambiguous, and we agree that it is not. We therefore decline
Horner’s invitation to examine the statute’s legislative history and focus instead on its plain
language. See id.Whether section 97.002 applies in the context of completed construction appears to be a
question of first impression. Each of the cases we have found applying this statute concerns an
injury sustained while road construction or repair was ongoing. See, e.g., Brown v. RK Hall
Constr., Ltd., 500 S.W.3d 509, 510 (Tex. App.—Texarkana 2016, pet. denied) (collision with
construction equipment in construction zone); Bennett Truck Transp., LLC v. Williams Bros.
Constr., 256 S.W.3d 730, 731 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (accident caused
by traffic lanes narrowed by ongoing construction). None of these cases, however, address whether
the statute’s applicability is limited to such circumstances. We are guided, then, only by principles
of statutory construction, as recited above.
Analysis
Beginning with its plain terms, section 97.002 reads as follows:
A contractor who constructs or repairs a highway, road, or street for the
Texas Department of Transportation is not liable to a claimant for personal
injury, property damage, or death arising from the performance of the
construction or repair if, at the time of the personal injury, property damage,
or death, the contractor is in compliance with contract documents material
to the condition or defect that was the proximate cause of the personal
injury, property damage, or death.
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TEX. CIV. PRAC. & REM. CODE ANN. § 97.002.
Notably, section 97.002 has three distinct parts: (1) an introduction describing who
qualifies for the statute’s protection, (2) a middle portion describing the specific protection the
statute affords, and (3) an ending setting forth the condition that must be met for such protection
to apply. We address each part in turn.
To whom section 97.002 provides protection
The first portion of section 97.002 sets forth to whom the statute provides liability
protection: “A contractor who constructs or repairs a highway, road, or street for the Texas
Department of Transportation . . . .” Id. § 97.002. Navarrette asserts the term “constructs” modifies
the phrase “arising from the performance of the construction or repair,” which appears in the
middle, next portion of the text. But we disagree with that assertion. Rather, in context, the opening
phrase, “A contractor who constructs or repairs a highway, road, or street for the Texas Department
of Transportation,” is a restrictive clause modifying the immediately preceding noun, “contractor.”
The first word in the restrictive clause—“who”—is a relative pronoun. Bryan Garner, The
Redbook: A Manual on Legal Style § 10.9, at 178–79 (3d ed. 2013). Relative pronouns require an
antecedent—that is, a preceding noun—to which they refer. Id Generally, the proper antecedent
for a relative pronoun is the noun that (1) precedes the pronoun most closely; and (2) agrees in
number, gender, and person with that pronoun. Id. at § 10.10, 179. Here, the word “contractor” is
the noun immediately preceding the relative pronoun “who” and both words agree in number
(singular), gender (neutral), and person (third). Thus, “who,” along with the remainder of the
clause, relates to “contractor” in this statute. A restrictive clause is one that “limits the essential
meaning of the sentence element it modifies or identifies.” William Strunk, Jr. & E.B. White, The
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Elements of Style, (4th ed. 2000) (Glossary: restrictive term, element, clause); see also Bryan
Garner, Garner’s Modern American Usage (Glossary: Clause, Relative) (3d ed. 2009). The
restrictive clause here limits the essential meaning of “contractor” because, in its absence, the
statute would apply to any contractor regardless of the nature of the work such contractor engaged
in or for whom the contractor performed—even a contractor hired to replace drywall, for example.
But the restrictive clause here evidences the Legislature’s intent for it to apply only to contractors
hired by TXDOT to perform highway or road construction. TEX. CIV. PRAC. & REM. CODE ANN.
§ 97.002.
Navarrette also contends that his interpretation of section 97.002 is mandated by the tense
of the verb “constructs.” He argues that because “constructs” is stated in the present-active tense,
the Legislature intended the phrase to limit the statute’s application to construction that is presently
ongoing. However, we determine the plain language and structure of the phrase does not support
this argument.
When construing statutory language, we may consider the use and interpretation of similar
language in other statutes. See Jaster v. Comet II Constr., Inc., 438 S.W.3d 556, 563 (Tex. 2014).
The Texas Legislature commonly uses present-tense verbs in restrictive clauses to explain to whom
the relevant statute applies; this is grammatically proper because restrictive clauses are not the
action of the sentence, they are being used as modifiers to nouns within the statutes. For example,
§ 74A.002 of the Texas Civil Practice and Remedies Code provides,
Unless the health care provider acts with malice or gross negligence, a health care
provider who provides patient information to a health information exchange is not
liable for any damages, penalties, or other relief related to the obtainment, use, or
disclosure of that information in violation of federal or state privacy laws by a
health information exchange, another health care provider, or any other person.
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TEX. CIV. PRAC. & REM. CODE ANN. § 74A.002(a) (emphasis added). This exclusion from liability
is not limited to the brief moment where patient information is being disclosed to a health
information exchange. On the contrary, a health information exchange can only use or disclose
information in violation of law after it has been provided that information. Thus, despite the use
of the present tense verb “provides,” the statute shields a health care provider from liability for
claims arising from the use of patient information even after the act of providing the information
to a health information exchange is complete.
Similarly, section 150.004 of the Texas Civil Practice and Remedies Code states that “[a]
certified municipal inspector who provides the services to which this section applies is not liable
for civil damages, including personal injury, wrongful death, property damage, or other loss related
to the inspector’s act, error, or omission in the performance of the services,” with certain
exceptions. TEX. CIV. PRAC. & REM. CODE ANN. § 150.004(b) (emphasis added). The Legislature
did not intend to limit the application of this statute only to claims for damages incurred while
inspectors are actually in the process of performing an inspection. Thus, as seen with these two
statutory examples, the Legislature’s use of the present tense “constructs” in section 97.002’s
restrictive clause is not a manifestation of intent for the statute’s protection from liability to apply
only in the context of ongoing construction.2
Finally, Navarrette urges that Horner’s reading of section 97.002 would impermissibly
require that we add language to the statute so that it reads, “[a] contractor who constructs or repairs
2
Horner further points out that two statutes of repose employ present tense verbs such as “designs” or “constructs”
while clearly applying to injuries sustained after completion of such design or construction. See TEX. CIV. PRAC. &
REM. CODE ANN. §§ 16.008 (claim against architect, etc., who “designs, plans, or inspects” improvement to real
property); 16.009 (claim against person who “constructs or repairs” improvement to real property).
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[or has completed construction or repair of] a highway, road, or street for the Texas Department
of Transportation is not liable to a claimant for personal injury, property damage, or death arising
from the performance [or completion] of the construction . . . .” 3 While we agree that such
additional language would support the interpretation advanced by Horner, we do not agree that
such language is fully necessary to that interpretation.
Simply put, the word “constructs” is not the action of the sentence, it is part of a restrictive
clause that modifies the noun before it. As a result, the choice to use a present-tense verb in the
restrictive clause has no temporal bearing and does not limit the application of section 97.002 to
injuries only occurring during ongoing construction or repairs.
The specific protection section 97.002 affords
After establishing to whom the statute provides protection, the middle portion of the text
explains the protection afforded to those who are qualifying contractors as follows: “[a contractor]
is not liable to a claimant for personal injury, property damage, or death arising from the
performance of the construction or repair . . . .” TEX. CIV. PRAC. & REM. CODE ANN. § 97.002.
Without dispute, we first note that this case involves a personal injury, not property damage or
death. Thus, for clarity and succinctness, we will simplify by omitting these two terms from further
discussion.
Navarrette contends that “arising from the performance of the construction” necessarily
means that the contractor’s performance must be contemporaneous with the claimant’s personal
3
The argument can be made that Navarrette’s interpretation of section 97.002 as only applying to active construction
requires altering the language of the statute to read “a contractor who constructs [is constructing] a highway for the
Texas Department of Transportation is not liable to a claimant for personal injury arising from [and during] the
performance of the construction.”
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injury. We conclude, however, that this is neither a logical—nor grammatically-correct—reading
of the phrase. The words “arising from” simply acknowledge that there must be a causal nexus
between the contractor’s conduct in performing a TXDOT project—whether ongoing or
completed—and the injury claimed. See Delaney v. Univ. of Houston, 835 S.W.2d 56, 59 (Tex.
1992) (discussing “arising out of” and “arises from” as requiring a nexus). Without this clause, for
example, a contractor in compliance with a TXDOT contract anywhere in the state might assert a
section 97.002 defense against a claim for personal injury it caused under circumstances unrelated
to its TXDOT project. Stated differently, a contractor’s mere following of contract terms does not
shield it from potential liability arising out of events completely unrelated to the work at issue.
Navarrette’s interpretation would require us to determine that the word “performance” has
a present temporal effect. But the ordinary, common meaning of the word “performance” has no
inherent, temporal limitation and may, in certain contexts, refer to past, future, or present
performance. See Liberty Surplus Ins. Corp. v. Exxon Mobil Corp., 483 S.W.3d 96, 104 n.5 (Tex.
App.—Houston [14th Dist.] 2015, pet. denied); see Merriam-Webster’s Collegiate Dictionary 920
(11th ed. 2014) (defining “performance” as “the execution of an action” or “something
accomplished”). Consequently, we conclude that “performance,” as used in section 97.002,
encompasses both ongoing and completed construction.
Based on its plain text, the statute applies only to those claims based on allegations that a
premises condition or defect arising from the performance of the construction or repair has
proximately caused personal injury, property damage or death. See TEX. CIV. PRAC. & REM. CODE
ANN. § 97.002. Because “performance” can mean past performance, the nexus required by section
97.002 is met here as Navarrette claims his injury occurred because of an allegedly dangerous
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condition or defect—that is, the condition or defect of “a 3 1/2 or 4 feet opening” appearing
between the ramp and the overpass, the condition or defect of a lack of rails to prevent falls, the
condition or defect of the failure to adequately warn that falls could occur, or any combination of
such.
Giving the plain language of the statute its ordinary meaning, and considering the text as
a whole, we conclude that the phrase “arising from the performance of the construction” does not
limit section 97.002’s application only to those cases in which an injury is sustained during
ongoing highway construction or repairs.
The condition under which section 97.002 applies
The remainder of the text provides the crucial condition under which the statute applies,
and in doing so, further reveals the Legislature’s intent. The contractor is only shielded from
liability “if, at the time of the personal injury, . . . the contractor is in compliance with contract
documents material to the condition or defect that was the proximate cause of the personal injury
. . . .” Id. § 97.002.
In Texas, highway contractors such as Horner have no discretion to deviate from the design
plans provided in their contract with TXDOT. See Brown v. RK Hall Construction, Ltd., 500
S.W.3d 509, 511 (Tex. App.—Texarkana 2016, pet. denied) (quoting APAC–Tex., Inc. v. Beasley,
No. 09-13-00390-CV, 2014 WL 887266, at *2 (Tex. App.—Beaumont Mar. 6, 2014, no pet.)
(mem. op.). Highway contractors have no discretion to deviate even when the plans “may be
inadequate or flawed to such a degree as to . . . cause harm or damage to some person or some
property.” Beasley, 2014 WL 887266, at *2. Highway contractors are simply hired to execute the
design plans provided by TXDOT. See id. Given the relationship between TXDOT and its highway
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contractors, it would make little sense for the Legislature to allow a claimant to sue a contractor—
either during construction or after it was completed—for injuries arising from an alleged defect
when the contractor performed its work pursuant to TXDOT’s specifications.
It is clear from the language of section 97.002, when read in its entirety, that the Legislature
enacted the statute to shield contractors who construct or repair highways for TXDOT from
liability in situations where it is affirmatively shown that the contractors complied with TXDOT
specifications over which they had no control. In other words, when it is shown that highway
construction for TXDOT is completed in compliance with TXDOT’s requirements, we find no
textual basis to conclude that the Legislature only granted protection to contractors
contemporaneously with the period of active construction.
The dissent argues that this interpretation would allow contractors to escape liability
forever upon project completion. Yet, we do not construe section 97.002 to provide a complete
limit of liability against contractors in all situations, or even those in which injuries occur after the
contractor’s completion of a roadway. As stated above, the statute contains an important limitation
on a highway contractor’s defense: it must have performed its construction or repair in compliance
with contract documents. Of course, we further recognize it is possible that a contractor’s non-
compliance with TXDOT’s specifications may only be discovered after the completion of its
highway work and even after the project’s acceptance by TXDOT. In that scenario, if a genuine
issue of material fact is raised on the compliance issue, it would preclude the grant of summary
judgment favorable to the contractor, even though the project at issue was by then complete.
Because TXDOT designed this project and required Horner to execute a specific design
plan, unless Navarrette could show a genuine issue of fact pertaining to the construction contract
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and material to the alleged condition or defect he claims had proximately caused his injury, section
97.002’s condition of applicability is met. Here, Navarrette has not produced any evidence that
Horner’s work failed to comply with the TXDOT contract, and it has not refuted Horner’s and
TXDOT’s assertions to that effect. In contrast, Horner has provided convincing evidence that it
constructed the relevant portion of the project in accord with its TXDOT contract documents.
For these reasons, we disagree with Navarrette’s proposed interpretation of the statute’s
text. Section 97.002 applies alike whether contractors have ongoing projects or have ultimately
completed their work. Whether a contractor may be held liable for personal injury, property
damage, or death arising from the performance of the contractor’s construction or repair of a
highway, road, or street for TXDOT, does not hinge on whether the work is ongoing or completed.
Instead, the liability depends on whether, at the time of the personal injury, property damage, or
death, the contractor is in compliance with its contract documents which are material to the
condition or defect that was the proximate cause of the personal injury, property damage, or death.
See TEX. CIV. PRAC. & REM. CODE ANN. § 97.002. Since it is undisputed that (1) Horner qualified
as a contractor who performed work on a roadway for TXDOT and (2) it was in compliance with
TXDOT’s contract documents material to the condition or defect that allegedly caused the personal
injury at issue—at the time of such injury—we hold that Horner has conclusively established its
no liability defense as a matter of law. See id. at § 97.002; see also Brown, 500 S.W.3d at 511,
513–15 (summary judgment in favor of contractor invoking section 97.002 was appropriate where
there was no genuine issue of material fact regarding whether the contractor’s work on a TxDOT
roadway was in compliance with TxDOT’s contract materials relevant to the claimant’s injury).
Accordingly, the trial court erred when it denied Horner’s motion for summary judgment.
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Horner’s sole issue on appeal is sustained.
CONCLUSION
Having sustained Horner’s sole issue, we reverse the trial court’s order denying Horner’s
motion for summary judgment and render judgment dismissing Navarrette’s claims against
Horner.
GINA M. PALAFOX, Justice
March 19, 2021
Before Rodriguez, C.J., Palafox, J., and McClure, C.J. (Senior Judge)
Rodriguez, C.J., dissenting
McClure, C.J. (Senior Judge), sitting by assignment
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