Abutahoun v. Dow Chem. Co.
| Decision Date | 08 May 2015 |
| Docket Number | NO. 13–0175,13–0175 |
| Citation | 463 S.W.3d 42 |
| Parties | Magdalena Adrienna Abutahoun, Individually and as Personal Representative of the Heirs and Estate of Robert Wayne Henderson, Deceased, and Tanya Elaine Henderson, Individually in Her Own Right and as Next Friend of Z.Z.H., a Minor, Petitioners, v. The Dow Chemical Company, Respondent |
| Court | Texas Supreme Court |
Erin Marie Wiegand, Fisher, Boyd, Johnson & Huguenard, LLP, Houston, Justin Joseph Presnal, Fisher, Boyd, Johnson & Huguenard, LLP, Houston, Michael E. Shelton, The Shelton Law Firm, Houston, for Amicus Curiae Dallas Building Trades Council.
William V. Dorsaneo III, SMU School of Law, Dallas, for Amicus Curiae William V. Dorsaneo III.
Christine Tamer, Denyse Ronan Clancy, John Lacoste Langdoc, Baron & Budd, P.C., Dallas, for Petitioner Magdalena Adrienna Abutahoun.
Amy Pharr Hefley, Macey Reasoner Stoke, Matthew Eagan, Stephen G. Tipps, Baker Botts LLP, Houston, David P. Herrick, Herrick & Associates PC, Dallas, for Respondent The Dow Chemical Company.
In this case of first impression, we must interpret Chapter 95 of the Texas Civil Practice and Remedies Code, which relates to limitations on a property owner's liability for injury, death, or property damage to an independent contractor. SeeTex. Civ. Prac. & Rem. Code ch. 95. The underlying legal dispute began when a pipeline insulation worker contracted mesothelioma and sued a chemical company alleging that he was exposed to asbestos-containing products while working as an independent contractor at the chemical company's facility. The sole issue in this appeal is whether Chapter 95 applies to an independent contractor's negligence claims against a property owner when the claims are based on injuries arising out of the property owner's negligent activities and not the independent contractor's own work. The court of appeals held that “[t]he plain meaning of the text of Chapter 95 does not preclude its applicability where a claim is based upon negligent actions of the premises owner.” 395 S.W.3d 335, 347 (Tex.App.–Dallas 2013). Applying the plain meaning of the statute, we hold that Chapter 95 applies to all independent contractor claims for damages caused by a property owner's negligence when the requirements of section 95.002(2) are satisfied. We affirm the court of appeals' judgment.
The Dow Chemical Company contracted with Win–Way Industries to install insulation on a system of pipelines at Dow's facility in Freeport, Texas. Robert Henderson was a Win–Way employee, and he assisted with the insulation work at Dow's Freeport facility from 1967 to 1968. Dow's Freeport facility contained thousands of pipes in a pipeline system that ran throughout the facility. The pipes, which Robert Henderson helped insulate with a material containing asbestos, transported steam and various types of acid. While working for Win–Way on the asbestos-insulated pipeline system at Dow's Freeport facility, Robert Henderson was allegedly exposed to asbestos dust by Dow employees who were installing, sawing, and removing asbestos insulation nearby. He was also allegedly exposed to asbestos dust as a result of his own direct contact with the insulation products. At trial, a Dow employee who worked on the same asbestos-insulated pipeline system as Robert Henderson testified, “[y]ou name it, we sawed it,” and also testified that individuals within twenty yards of him were “in the [asbestos] dust area.” In a pre-trial deposition, Robert Henderson testified that he was doing the same kind of work as Dow employees on the asbestos-insulated pipeline system, and he testified about the frequency, regularity, and proximity of the exposure he received as a bystander to Dow employees performing similar insulation work nearby. Robert Henderson testified that, while at Dow's Freeport facility, he worked on the pipeline system two to three days per week for four to five hours per day, usually working within five to ten feet of Dow employees who were working with asbestos-based insulation.
Eventually, Robert Henderson was diagnosed with mesothelioma, and he and his wife, Tanya, sued Dow and over a dozen other defendants, alleging under various negligence and product liability theories that the defendants were responsible for Robert Henderson's injuries due to asbestos exposure. Upon Robert Henderson's death, the petition was amended to allow his adult daughter, Magdalena Adrienna Abutahoun, and his minor daughter, through Tanya Henderson as next friend, to join the lawsuit as wrongful death heirs (collectively, the Hendersons). The lawsuit was originally filed in the 160th District Court in Dallas County but was transferred to the asbestos multi-district litigation (MDL) pretrial court in Harris County for pretrial proceedings. See Tex. Gov't Code § 74.162.
Dow moved for summary judgment in the MDL pretrial court, arguing that Chapter 95 of the Texas Civil Practice and Remedies Code applied to the Hendersons' negligence claims against Dow and precluded any recovery. The MDL pretrial court granted Dow summary judgment in part and dismissed “all claims against [Dow] in which Plaintiffs allege that Decedent Robert Wayne Henderson ... was injured by exposure to respirable asbestos as the result of the activities of Decedent and/or the activities of other employees of Decedent's employer on any premises of [Dow].” The MDL pretrial court denied Dow's motion for summary judgment “as to all of Plaintiffs' other claims against [Dow], including Plaintiffs' claims that Decedent was injured by virtue of the activities of Dow Employees.” Accordingly, although Robert Henderson was allegedly exposed to asbestos both directly from his own insulation work and as a bystander to the insulation work of Dow employees, only the Hendersons' claims predicated on the negligence of Dow's employees were allowed to proceed before the jury.
The MDL pretrial court remanded the case to the original trial court, and the Hendersons' remaining claims based on Dow's employees' contemporaneously negligent activities were tried to a jury. The Hendersons' claims against all other defendants were resolved before the case was submitted to the jury. At the conclusion of trial, a general negligence question was submitted that instructed the jury to consider, with respect to Dow, “only the activities of [Dow] employees at Dow ... facilities.”1 The jury returned a verdict in which it found that Dow's negligence proximately caused Robert Henderson's injuries, and that Dow was 30% responsible for causing Robert Henderson's injuries. Based on the jury verdict and several adjustments, the trial court rendered judgment against Dow for $2.64 million plus interest and court costs.
Dow appealed the verdict and argued that Chapter 95 does not distinguish between a property owner's liability for exposure caused by the activities of contractors and their employees and exposure that the property owner's own employees' activities caused. 395 S.W.3d at 338–39. Further, Dow argued that Chapter 95 applied to bar all of the Hendersons' negligence claims because the Hendersons did not establish that Dow had both control over Robert Henderson's work and actual knowledge of the dangers of asbestos exposure as Chapter 95 requires.See id. at 339 ; see also Tex. Civ. Prac. & Rem. Code § 95.003. The Hendersons argued that Dow could not “avail itself of the heightened protections afforded by Chapter 95” because their claims against Dow were “based solely upon the negligent activities of Dow employees, and not from injury arising from the condition or use of an improvement of real property by [Robert] Henderson.” 395 S.W.3d at 342.
The court of appeals agreed with Dow's interpretation of the statute. See id. at 347. The court of appeals reversed the trial court's judgment and rendered a take-nothing judgment in favor of Dow, holding that Chapter 95 applied to the Hendersons' claims against Dow because “[t]he plain meaning of the text of [section 95.002(2) ] does not preclude [Chapter 95's] applicability where a claim is based upon the negligent actions of the premises owner.” Id. The court of appeals reasoned that the claim arose from the condition or use of an improvement (the asbestos-insulated pipeline system) where Robert Henderson, as a contractor, constructed, repaired, renovated, or modified the improvement. See id. at 348. Thus, Chapter 95 applied to the Hendersons' claims against Dow, and the Hendersons had to establish Dow's liability under the standards set forth in Chapter 95, which they failed to do. Id. The Hendersons filed a petition for review in this Court, which we initially denied. After considering the Hendersons' motion for rehearing, which cited several recent courts of appeals' decisions that conflicted with the court of appeals' decision in this case, we granted the Hendersons' petition. See 58 Tex. Sup. Ct . J. 85 (Nov. 24, 2014).
As always, “[w]hen construing a statute, we begin with its language.” State v. Shumake, 199 S.W.3d 279, 284 (Tex.2006). Chapter 95 of the Texas Civil Practice and Remedies Code is titled “Property Owner's Liability for Acts of Independent Contractors and Amount of Recovery.” Tex. Civ. Prac. & Rem. Code ch. 95. The heart of the chapter, sections 95.002 and .003, establishes Chapter 95's applicability and limitations on a property owner's liability for personal injury, death, or property damage to independent contractors, respectively.2 Id. §§ 95.002–.003. Regarding applicability, section 95.002 states that Chapter 95 “applies only to a claim.” Id. § 95.002. A “claim” is specifically defined as “a claim for damages caused by negligence.” Id. § 95.001(1). Section 95.002 then explains that Chapter 95 applies only to a claim for damages caused by negligence:
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