Enserch Corp. v. Parker

• Decision Date: 06 June 1990
• Docket Number: No. C-9207,C-9207
• Citation: Enserch Corp. v. Parker, 794 S.W.2d 2 (Tex. 1990)
• Parties: ENSERCH CORPORATION d/b/a Lone Star Gas Company, Petitioner, v. Mary Jean PARKER, Individually and as Representative of the Estate of Billy Joe Parker, Deceased, and as Next Friend of Daniel Edward Parker et al., Respondents.
• Court: Texas Supreme Court

Page 2

794 S.W.2d 2

ENSERCH CORPORATION d/b/a Lone Star Gas Company, Petitioner, v. Mary Jean PARKER, Individually and as Representative of the Estate of Billy Joe Parker, Deceased, and as Next Friend of Daniel Edward Parker et al. Respondents.

No. C-9207.

Supreme Court of Texas.

June 6, 1990.

Rehearing Overruled Sept. 6, 1990.

Michael L. Knapek, Dallas, for petitioner.

Charles W. McGarry, Richard N. Countiss, Michael W. Huddleston, Kenneth J. Mighell, Dallas, for respondents.

OPINION

SPEARS, Justice.

This is a wrongful death action in which the issue is the enforceability of an indemnity agreement. Billy Joe Parker and Preston Edward Watson were asphyxiated when a gasket blew out causing a valve to leak natural gas into the concrete manhole vault where they were working. Parker and Watson were employed by J.W. "Bill" Christie, Inc., a company servicing the pipeline owned and operated by Enserch Corporation through its division, Lone Star Gas Company. The trial court granted summary judgment in favor of Enserch against the plaintiffs on their wrongful death claim and in favor of Enserch on its indemnity claim against Christie. The court of appeals reversed the summary judgment and remanded the plaintiffs' wrongful death claim for trial. It also reversed and rendered the judgment on Enserch's indemnity claim against Christie. 776 S.W.2d 638. We affirm that part of the court of appeals' judgment which remands the wrongful death claim; however, we reverse that part of the judgment involving the indemnity claim and affirm the judgment of the trial court.

Enserch contends that the trial court properly granted its motion for summary judgment in its entirety because (1) the claims against Enserch were barred as a matter of law by limitations; (2) Enserch owed no duty to Parker and Watson as employees of Christie since Christie was an independent contractor at the time of the deaths; and (3) Christie was required to indemnify Enserch pursuant to a written contract.

STATUTE OF LIMITATIONS

Plaintiffs' cause of action is governed by a two-year statute of limitations. TEX.CIV.PRAC. & REM.CODE ANN. § 16.003 (Vernon 1986). The accident occurred, and the plaintiffs died, on February 8, 1984. Suit was filed on February 3, 1986, naming Lone Star Gas Company of Texas as a defendant. Lone Star Gas answered that it did not own, maintain, or operate any pipelines in the area where the accident occurred and that it had no working relationship with Christie. By verified pleadings it then asserted that a defect in the parties existed because Lone Star Gas was not liable for the relief sought by the plaintiffs.

On August 5, 1987, some eighteen months after filing suit, the plaintiffs filed an amended original petition naming Enserch Corporation d/b/a Lone Star Gas Company as a defendant. The plaintiffs alleged that Lone Star Gas was a wholly owned subsidiary of Enserch and that Enserch does business as Lone Star Gas. They also alleged that the subsidiary originally served with citation had a name deceptively similar to the trade name of its parent and that the proper defendant had not been prejudiced by the plaintiffs' mistake.

Texas courts have recognized a distinction between misnomer and misidentification. If the plaintiff merely misnames the correct defendant (misnomer), limitations is tolled and a subsequent amendment of the petition relates back to the date of the original petition. If, however, the plaintiff is mistaken as to which of two defendants is the correct one and there is actually existing a corporation with the name of the erroneously named defendant (misidentification), then the plaintiff has sued the wrong party and limitations is not tolled. Womack Machine Supply Co. v. Fannin Bank, 499 S.W.2d 917, 919 (Tex.Civ.App.--Houston [14th Dist.] 1973), rev'd on other grounds, 504 S.W.2d 827 (Tex.1974). The plaintiffs brought suit within the limitations period against Lone Star Gas Company of Texas, a separate and distinct legal entity from the proper corporate defendant, Enserch Corporation d/b/a Lone Star Gas Company. Therefore, the case before us is one of misidentification.

In Continental Southern Lines, Inc. v. Hilland, 528 S.W.2d 828 (Tex.1975), Hilland brought suit within the limitations period against Continental Trailways, Inc., a separate and distinct legal entity from the proper corporate defendant, Continental Southern Lines, Inc. More than two years after the accident, Hilland amended her petition to make Continental Southern a party defendant. Continental Southern then raised a limitations defense. We concluded that the bus companies made a conscious effort to make it appear that they were "Continental Trailways" and that Hilland "should be given ... an opportunity to prove that the Continental Southern Lines, Inc., was cognizant of the facts, was not misled, or placed at a disadvantage in obtaining relevant evidence to defend the suit." Id. at 831. Although Hilland was a case of misidentification, we held that if Hilland could prove that the proper defendant was not prejudiced by the mistake in pleading, then limitations would not operate to bar her suit. Id.

In Howell v. Coca-Cola Bottling Co., 595 S.W.2d 208 (Tex.Civ.App.--Amarillo 1980, writ ref'd), Howell sued Coca-Cola Bottling Co., rather than the proper defendant, Coca-Cola Bottling Company of Lubbock, Inc. After Howell amended his petition to name Coca-Cola Bottling Co. of Lubbock as a defendant, the company asserted a limitations defense since it was not named as a defendant until after the two year limitations period expired. Howell contended that limitations should not be tolled because the two corporations in question were "so intertwined that suit against the first corporation gave the second corporation notice of, and a reasonable opportunity to defend the case." Id. at 212. The court of appeals recognized this court's decision in Hilland, but held that in Howell, the proper defendant was not apprised of Howell's suit until some four years after the incident occurred. Consequently, the court held that suit was barred by the statute of limitations.

In Palmer v. Enserch Corp., 728 S.W.2d 431 (Tex.App.--Austin 1987, writ ref'd n.r.e.), Palmer filed suit against multiple defendants, including Enserch Corporation. He amended his petition to name Enserch Exploration, Inc. as a party more than two years after originally filing suit. Enserch Exploration asserted limitations as a defense. The court held that diligence of the plaintiff in preventing the running of limitations is not the issue; rather, the issue is whether the legitimate purpose of the limitations statute would be served by its application under circumstances where no party is misled or placed at a disadvantage by the error in pleading. Id. at 434. The Palmer court determined that the purpose of limitations would not be served by its application. See also Barnett v. Houston Natural Gas Co., 617 S.W.2d 305, 306 (Tex.Civ.App.--El Paso 1981, writ ref'd n.r.e.) (holding that critical issue is whether the party claimed to be responsible is in fact put on notice of the claim being made against it).

The summary judgment evidence shows that Enserch Corporation d/b/a Lone Star Gas Company has not been placed at a disadvantage in obtaining relevant evidence to defend this action. When Lone Star Gas Company of Texas, Inc., was served in this case, its legal department handled the utility litigation involving both Lone Star Gas Company of Texas, Inc., and Enserch Corporation d/b/a Lone Star Gas Company. This case was assigned to a senior attorney in the Enserch litigation department who was responsible for litigation involving both corporate entities. Although the petition named the wrong defendant in the style of the case, it correctly identified the proper defendant as the Lone Star Gas Company with authority over the gas pipeline in Richardson. The Enserch attorney noticed this pleading defect in the parties and determined that the correct party to be sued was Enserch Corporation d/b/a Lone Star Gas Company.

After this attorney filed his designation as attorney of record for Lone Star Gas Company of Texas, Inc., he was present for depositions in which Parker deposed five Christie employees having knowledge of relevant facts. Parker also deposed the Enserch attorney who admitted that Lone Star Gas Company of Texas, Inc., had been named as a party defendant in other lawsuits when, in fact, Enserch Corporation d/b/a Lone Star Gas Company was the target defendant. Additionally, the necessary business relationship exists between the two corporate defendants. See Matthews Trucking Co., Inc. v. Smith, 682 S.W.2d 237, 239 (Tex.1984). Both Lone Star Gas Company of Texas, Inc., and Enserch Corporation d/b/a Lone Star Gas Company were fully cognizant of the facts of the accident and could not have been misled as to the basis of the suit. We conclude that the instant case is analogous to Hilland and Palmer. A fact issue exists as to whether Enserch Corporation was prejudiced by the plaintiffs' error in pleading.

DUTY OF CARE

The contract between Enserch and Christie provides that Christie is an independent contractor and is to perform and complete the pipeline work according to work orders provided by Lone Star Gas Company. Enserch contends that since Christie is an independent contractor, Enserch owes no duty of care to Parker and Watson to prevent them from being injured. However, the plaintiffs contend that, despite Christie's status as an independent contractor, Lone Star Gas retained control over Christie's work, which created a duty on the part of Lone Star Gas to exercise reasonable care in the exercise of that control. Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex.1985).

As a general rule, an owner or occupier of land does not have a duty to see that an independent contractor performs work in a safe manner. Abalos v. Oil Dev. Co., 544 S.W.2d 627, 631 (Tex.1976). However,...