Daniel Const. Co. v. Ethyl Corp.

• Decision Date: 05 June 1986
• Docket Number: No. A14-85-00802-CV,A14-85-00802-CV
• Citation: 714 S.W.2d 51
• Parties: DANIEL CONSTRUCTION COMPANY, Appellant, v. ETHYL CORPORATION, Donald Metcalf and Rebecca Metcalf, Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 51

714 S.W.2d 51

DANIEL CONSTRUCTION COMPANY, Appellant, v. ETHYL CORPORATION, Donald Metcalf and Rebecca Metcalf, Appellees.

No. A14-85-00802-CV.

Court of Appeals of Texas Houston (14th Dist.).

June 5, 1986.

Rehearing Denied July 10, 1986.

Randy G. Donato, W. James Kronzer, Houston, for appellant.

Michael S. Hays, Richard Warren Mithoff, Susan E. Crowley, Tommy Jacks, Houston, for appellees.

Before PAUL PRESSLAR, MURPHY and ROBERTSON, JJ.

OPINION

ROBERTSON, Justice.

The issue presented by this appeal is whether appellant Daniel, as contractor, is liable to appellee Ethyl, as owner, under a contract of indemnity for injuries suffered by appellee Metcalf, an employee of appellant Daniel. Appellee Ethyl brings a cross-point contending that if we determine it is not entitled to full indemnity that it is entitled to contribution from Daniel based upon the percentage of Daniel's negligence as found by the jury. We hold Ethyl is not entitled to indemnity or contribution and reverse and render.

The facts are not in dispute. Daniel and Ethyl entered into a cost-plus contract whereby Daniel was to perform certain construction work on Ethyl's plant located near Pasadena. The accident forming the basis for this lawsuit involved connecting lines carrying aluminum alkyls, a highly volatile and flammable substance, from existing facilities to newly constructed facilities. Prior to making the "tie-ins" of the lines, Ethyl was supposed to purge the existing lines of the alkyls to prevent its combustion when exposed to the atmosphere. As an added precaution valve handles on the existing lines were supposed to be, and on prior like connections had been, removed from existing lines to prevent the accidental opening of the valves and the escape of the alkyls. On the occasion in question neither the existing line being connected had been purged nor was the valve handle removed prior to making the connection. The result was that the valve handle was knocked open, the alkyls in the line escaped and ignited, and Metcalf was severely burned. Metcalf sued Ethyl which in turn filed a third party claim seeking indemnity against Metcalf's employer, Daniel.

In answer to the special issues presented, the jury found that the occurrence was proximately caused by Ethyl's negligence (1) in failing to adequately inspect the area in question to see that the valve handle in question had been removed before Daniel Construction Company started work; (2) in failing to adequately purge and blind the line leading to the valve in question before Daniel Construction Company started work; (3) in failing to require Metcalf to wear protective clothing; and (4) in failing to provide Metcalf with a safe place in which to work.

Additionally, the jury found that the occurrence was proximately caused by Daniel's negligence (1) in failing to notify Ethyl that the valve handle had not been removed before starting work, and (2) in permitting Metcalf to start the work in question at a time when Daniel Construction Company, acting through its agents and employees, knew or should have known that the valve handle in question had not been removed. However, the jury failed to find that Daniel was negligent (1) in failing to remove the valve handle in question before starting work, and (2) in failing to warn Metcalf that the valve handle was supposed to be removed before starting work.

The jury attributed ninety percent of the negligence that proximately caused the occurrence in question to Ethyl, ten percent to Daniel and found damages in favor of Metcalf. Later, the trial court granted Ethyl's motion to disregard the jury's answer to the special issue that Ethyl was negligent in failing to require Metcalf to wear protective clothing.

All parties filed motions for judgment. Metcalf sought judgment against Ethyl and prayed that Ethyl receive full indemnity from Daniel; Ethyl's motion sought full indemnity from Daniel, or in the alternative, indemnity for that portion of the negligence attributed to Daniel; and Daniel sought a take nothing judgment on Ethyl's contractual indemnity claim. The court granted judgment against Ethyl and granted full indemnity to Ethyl from Daniel.

Appellant's sole point of error contends the trial court erred in imposing indemnity liability upon Daniel because: (1) the provisions of the contract "were not sufficiently and adequately conspicious" to authorize imposition of liability on Daniel for the concurring neglect of Ethyl and Daniel; (2) the contractual indemnity provisions do not "clearly and unequivocally" provide for indemnity for Ethyl's negligence; and (3) the jury findings that Ethyl's negligence in failing to purge the lines containing the alkyls and failing to provide Metcalf a safe place to work "were not wholly dependent upon any duty or obligation of Daniel Construction Company toward Donald A. Metcalf independent of Ethyl's own obligation and duties."

The well-developed rule in Texas for interpreting indemnity agreements is for an agreement to indemnify the indemnitee for its own negligence the agreement must "clearly and unequivocally" provide for such indemnification. Eastman Kodak Co. v. Exxon Corp., 603 S.W.2d 208, 211 (Tex.1980); Joe Adams & Son v. McCann Construction Co., 475 S.W.2d 721, 723 (Tex.1971); Charter Builders v. Durham, 683 S.W.2d 487, 492 (Tex.App.--Dallas 1984, writ ref'd...