Adams v. Spring Valley Const. Co.

• Decision Date: 17 March 1987
• Docket Number: No. 05-86-00499-CV,05-86-00499-CV
• Citation: 728 S.W.2d 412
• Parties: Jane A. ADAMS, Individually and as Administratrix of the Estate of Jessie L. Adams and Don Burden & Associates, Inc., Appellants, v. SPRING VALLEY CONSTRUCTION COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 412

728 S.W.2d 412

Jane A. ADAMS, Individually and as Administratrix of the Estate of Jessie L. Adams and Don Burden &amp Associates, Inc., Appellants, v. SPRING VALLEY CONSTRUCTION COMPANY, Appellee.

No. 05-86-00499-CV.

Court of Appeals of Texas Dallas.

March 17, 1987.

Rehearing Denied May 5, 1987.

Leo John Jordan, Dallas, for appellant Don Burden.

Edward Gray, Dallas, for appellant Patsey Seaton Geiger.

David B. James, Dallas, for appellant Jane Adams.

Lancaster Smith, Sr., Scott Smith, Dallas, for appellee.

Before DEVANY, STEWART and ROWE, JJ.

DEVANY, Justice.

This is an appeal from a summary judgment in a suit between a general contractor and a subcontractor over indemnification in a wrongful death case. Spring Valley Construction Company contracted with Don Burden & Associates, Inc., to do the plumbing work in one of Spring Valley's projects under construction. The subcontract between the parties included a provision whereby Don Burden would indemnify Spring Valley for all liability arising out of Don Burden's work on the project. Jessie Adams, an employee of Don Burden, was killed when he fell through an elevator shaft cover built and inspected by Spring Valley. His estate and survivors brought a wrongful death action against Spring Valley, and later joined Don Burden & Associates as a defendant. Spring Valley cross-claimed against Don Burden for indemnification under their contract. Both Spring Valley and Don Burden filed cross-motions against the other for summary judgment. The trial court granted Spring Valley's motion and denied the motion of Don Burden. Don Burden appeals, and the estate of Jessie Adams and his survivors join in the appeal. Don Burden raises eight points of error; however, we need only address its first and second points of error because they are dispositive of this appeal. In its first and second points of error, Don Burden claims that the trial court erred in denying its motion for summary judgment and in granting Spring Valley's motion for summary judgment because the indemnity language in question does not meet the "clear and unequivocal" test required of indemnity provisions for the indemnitee's own negligence in Texas. Because we hold that the indemnity language in question does not meet the "express negligence doctrine" as now adopted in Texas, we reverse the judgment of the trial court and render judgment in favor of Don Burden & Associates, Inc.

The indemnity language in question in this case occurs in a provision of the subcontract between Spring Valley and Don Burden. The provision states:

The Subcontractor agrees--

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(d) To carry Workmen's Compensation Insurance, Comprehensive Bodily Injury, Property Damage Liability and Automotive Liability Insurance with limits as required of the Contractor by the Owner. Such insurance to be carried with insurance companies acceptable to and approved by the Contractor and Certificates of Insurance evidencing such coverage are to be furnished to the Contractor providing not less than 10 days notice of cancellation. Subcontractor does hereby agree to indemnify and save harmless the Contractor of any and all liability including all costs in connection therewith resulting from injury to, including death, of any persons as well as damage to property of others resulting and arising out of the operations of the Subcontractor. (Emphasis added.)

Spring Valley based their motion for summary judgment on this language, together with the language which appeared in the Certificate of Insurance provided by Don Burden. The pertinent portion of the Certificate of Insurance states:

The Subcontractor shall indemnify and hold harmless the contractor, ... and employees, from and against all claims, damages, losses and expenses, including attorney's fees, arising out of or resulting from the performance of the Subcontractor's Work under the Contract Documents, 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 [a] negligent act or omission of the Subcontractor or anyone directly or indirectly employed by him or anyone for whose acts he may be liable, regardless of whether it is caused in part by a party indemnified hereunder....

First, we address the question of whether the language in the subcontract, alone, is sufficient to require Burden to indemnify Spring Valley for Spring Valley's own negligence. We hold that it is not sufficient. The supreme court of Texas has recently adopted the "express negligence doctrine" in Ethyl Corporation v. Daniel Construction Company, 725 S.W.2d 705 (Tex.1987). In that case, the court stated:

The express negligence doctrine provides that parties seeking to indemnify the indemnitee from the consequences of its own negligence must express that intent in specific terms. Under the doctrine of express negligence, the intent of the parties must be specifically stated within the four corners of the contract. We now reject the clear and unequivocal test in favor of the express negligence doctrine. In so doing, we overrule those portions of Joe Adams & Son, v. McCann Construction Co., Ohio Oil Co. v. Smith, and Mitchell's, Inc. v. Friedman stating it is unnecessary for the parties to say, "in so many words," they intend to indemnify the indemnitee from liability for its own negligence. Joe Adams & Son, v. McCann Construction Co., 475 S.W.2d 721, 723 (Tex.1971); Ohio Oil Co. v. Smith, 365 S.W.2d 621, 624 (Tex.1963); Mitchell's, Inc., v. Friedman 303 S.W.2d 775, 779 (Tex.1957).

Ethyl Corporation, 725 S.W.2d at 708.

In Ethyl, an employee of the contractor was injured while working on a construction project for the owner. The employee sued the owner, who in turn sued the contractor for indemnification based upon the following indemnification provision in the contract between the owner and the contractor:

Contractor shall indemnify and hold Owner harmless against any loss or damage to persons or property as a result of operations growing out of the performance of this contract and caused by the negligence or carelessness of Contractor, Contractor's employees, Subcontractors and agents or licensees.

725 S.W.2d at 707. The supreme court held that this language was insufficient to require the contractor to indemnify the owner against the owner's negligence.

In light of Ethyl, we also hold that the language "within the four corners" of the subcontract between Spring Valley and Don Burden does not expressly state that Don...