AEP Texas North Company v. SPA Pipe, Inc., No. 03-06-00122-CV (Tex. App. 12/12/2008)
| Decision Date | 12 December 2008 |
| Docket Number | No. 03-06-00122-CV.,03-06-00122-CV. |
| Parties | AEP TEXAS NORTH COMPANY, F/K/A WEST TEXAS UTILITIES COMPANY, Appellant, v. SPA PIPE, INC. D/B/A SMITH PIPE OF ABILENE AND SPA PIPE & SUPPLY, LP, Appellees. |
| Court | Court of Appeals of Texas |
Appeal from the District Court of Tom Green County, 51st Judicial District, No. A-01-1149-C, Honorable Ben Woodward, Judge Presiding.
Reversed and Remanded.
Before Justices PURYEAR, PEMBERTON and WALDROP.
Felipe Hernandez was injured after coming into contact with one of AEP Texas North Company's ("AEP") power lines, which had snagged on his employer's truck. At the time, Hernandez was working for SPA Pipe.1 Hernandez sued AEP, and AEP eventually settled with Hernandez. As a result of the suit, AEP sought indemnity from SPA Pipe for the settlement and other costs incurred as a result of the incident. In response, SPA Pipe filed a motion for summary judgment contending that AEP was not entitled to indemnification as a matter of law. The district court granted the motion, and AEP appeals that determination. We will reverse the judgment of the district court and remand the case back to the district court.
Hernandez was an employee of SPA Pipe, and John Gutierrez was his supervisor. On September 3, 1999, Hernandez and Gutierrez drove to a ranch to pick up two oil tanks that SPA Pipe had purchased. In preparation for the trip, SPA Pipe had obtained a permit from the Texas Department of Transportation allowing SPA Pipe to carry an oversized load up to 17 feet high. See Tex. Transp. Code Ann. § 621.207(a) (West 1999) (specifying that "[a] vehicle and its load may not be higher than 14 feet"); 43 Tex. Admin. Code §§ 28.10-.13 (2008) ().
Shortly after Gutierrez and Hernandez loaded the tanks onto SPA Pipe's truck, they left the ranch and headed for the drop-off site with Gutierrez driving the truck. Some of AEP's overhead high-voltage electrical wires crossed the highway that Gutierrez and Hernandez were traveling on. See Tex. Health & Safety Code § 752.001 (West 2003) (). As they approached one set of power lines, Gutierrez and Hernandez noticed that some of the lines were hanging low enough that they might catch on the tanks. To prevent that from happening, Gutierrez drove slowly underneath the lines, but one of the lines got caught on one of the tanks anyway. Gutierrez attempted to dislodge the line by slowly driving the truck back and forth. Because the line did not release, Gutierrez instructed Hernandez to climb on top of the truck and physically remove the line from the tank. Although Hernandez tried to lift the line off the tank, he was unable to untangle the line. After determining that Hernandez would be unable to physically remove the line, Gutierrez began backing the truck up. This caused Hernandez to lose his balance and come into contact with one of the other power lines. As a result of the contact, Hernandez sustained significant injuries. No attempt was made to contact AEP until after Hernandez was injured.
It is undisputed that the lines in question were hanging below the minimum height required by the utilities code. See Tex. Util. Code Ann. § 181.045(b)(2) (West 2007) (). Relying on that fact, Hernandez sued AEP. He ultimately settled with AEP.2 In response to Hernandez's suit, AEP filed an indemnity claim against SPA Pipe pursuant to section 752.008 of the health and safety code. See Tex. Health & Safety Code Ann. § 752.008 (West 2003). Essentially, AEP argued that because SPA Pipe did not inform AEP of its intent to work on the lines before beginning the work and because SPA Pipe began the work without coming to an agreement with AEP regarding safety measures that could be taken, SPA Pipe was required to indemnify AEP for the settlement AEP made and other damages AEP sustained.
After AEP requested indemnification, SPA Pipe filed a motion for summary judgment contending that AEP was not entitled to indemnity from AEP. Specifically, SPA Pipe asserted that chapter 752 of the health and safety code does not apply to the circumstances of this case. Alternatively, it contended that even if chapter 752 applied, the indemnity provision does not apply when a utility has failed to maintain its power lines above the statutory minimum height. The district court granted the motion but did not specify the ground upon which the motion was granted. AEP appeals the district court's judgment.3
On appeal, AEP contends that the district court improperly granted SPA Pipe's motion for summary judgment. We review the decision to grant a summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). When, as here, the district court's judgment does not indicate the grounds upon which the motion was granted, we must affirm the district court's judgment if any of the grounds presented are meritorious. Western Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005).
Both parties agree that the relevant facts are not in dispute, and the issues raised in this appeal involve statutory construction, which is a question of law that is reviewed de novo. See Bragg v. Edwards Aquifer Auth., 71 S.W.3d 729, 734 (Tex. 2002); USA Waste Servs. of Houston, Inc. v. Strayhorn, 150 S.W.3d 491, 494 (Tex. App.-Austin 2004, pet. denied). When construing statutes, we must ascertain the legislature's intent in enacting the statutes. Fleming Foods of Tex. v. Rylander, 6 S.W.3d 278, 284 (Tex. 1999). In making this determination, courts should look to the plain meaning of the words used in the statute. See Fireman's Fund County Mut. Ins. Co. v. Hidi, 13 S.W.3d 767, 768-69 (Tex. 2000). We presume that every word was deliberately chosen and that excluded words were left out on purpose. USA Waste Servs., 150 S.W.3d at 494. When determining legislative intent, the entire act, not isolated portions, must be considered. Jones v. Fowler, 969 S.W.2d 429, 432 (Tex. 1998). We may also consider the "object sought to be attained" by enacting the statute and the "consequences of a particular construction." Tex. Gov't Code Ann. § 311.023 (West 2005). Furthermore, if two statutes address the same subject, they should be read together and harmonized with each other even if the statutes do not refer to one another. In re VanDeWater, 966 S.W.2d 730, 732 (Tex. App.-San Antonio 1998, orig. proceeding).
Before addressing the merits of this case, we provide a brief summary of the provisions of the health and safety code that relate to performing work near overhead power lines. The health and safety code mandates that a "person, firm, corporation, or association" (cumulatively "person"), other than a utility employee, engaged in "temporary work or a temporary activity or function" (cumulatively "temporary work") that is close to an "overhead line" must "notify the [utility] at least 48 hours" prior to engaging in the work near the line. Tex. Health & Safety Code Ann. §§ 752.002-.03(a) (West 2003). Moreover, the code forbids a person from beginning the temporary work unless the person and the utility enter into "a satisfactory mutual arrangement" regarding safety measures that are to be taken to prevent potential injuries. Id. § 752.003(b) (West 2003). For example, the agreement may provide for "temporary de-energization and grounding, temporary relocation or raising of the line, or temporary mechanical barriers to separate and prevent contact between the line and . . . the person performing the" temporary work. Id. Further, the code requires the person "responsible for the" temporary work to pay the utility for the costs associated with "providing clearance" and allows the utility to require payment in advance. Id. § 752.003(c) (West 2003).
The prohibition against performing temporary work applies to work that is going to be performed within six feet of a power line. Id. § 752.004 (West 2003). In particular, the code provides that unless a person "effectively guards against danger by contact with the line," the person "may not perform" temporary work "if at any time it is possible that the person . . . may" be placed within or bring "any part of a tool, equipment, machine, or material" within six feet of an overhead line. Id. § 752.004(a). Further, the code prohibits a person from transporting structures, tools, machines, equipment, supplies, or materials "within six feet of a high voltage overhead line." Id. § 752.005 (West 2003). Finally, the code specifies that an employer "may not require an employee to perform a function or activity" that would violate the six-foot mandate. Id. § 752.004(b).
The overall intent behind the passage of chapter 752 was to ensure the safety of individuals engaged in activities near power lines. Ringo v. Gulf States Util. Co., 569 S.W.2d 31, 35 (Tex. Civ. App.-Beaumont 1978, writ ref'd n.r.e.). In light of that intent, the code imposes criminal penalties for violations of chapter 752, see Tex. Health & Safety Code Ann. § 752.007 (West 2003), and also requires a person that violates chapter 752 to indemnify a utility for any damage or liability that it sustains as a result of the violation, id. § 752.008 (West 2003). Concerning indemnification, section 752.008 provides as follows:
If a violation of this chapter results in physical or electrical contact with a high voltage overhead line, the person, firm, corporation, or association that committed the violation is liable to the owner or operator of the line for all damages to the facilities and for all liability that the owner or...
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