Phillips Pipeline Co. v. Richardson, No. 08-83-00043-CV

CourtCourt of Appeals of Texas
Writing for the CourtWARD
Citation680 S.W.2d 43
PartiesPHILLIPS PIPELINE COMPANY, Appellant, v. Dane B. RICHARDSON, et al., Appellees.
Decision Date24 October 1984
Docket NumberNo. 08-83-00043-CV

Page 43

680 S.W.2d 43
PHILLIPS PIPELINE COMPANY, Appellant,
v.
Dane B. RICHARDSON, et al., Appellees.
No. 08-83-00043-CV.
Court of Appeals of Texas,
El Paso.
Oct. 24, 1984.

Page 44

Harrell Feldt, Marc L. Skeen, Stubbeman, McRae, Sealy, Laughlin & Browder, Midland, for appellant.

John E. Gunter, Rassman, Gunter & Boldrick, Midland, John L. Pratt, Odessa, Mark Withrow, Robert P. Abbott, Turpin, Smith, Dyer & Saxe, Midland, W.O. Shafer, Shafer, Gilliland, Davis, McCollum & Ashley, Odessa, for appellees.

Before WARD, OSBORN and SCHULTE, JJ.

OPINION

WARD, Justice.

This appeal complains of the recovery by Dane Richardson, as Plaintiff, for damages awarded to him for injuries received from a pipeline blowout and concerns the inadmissible reference to insurance during the trial. The rights of the Defendant, Phillips Pipeline Company, to be indemnified by Gulf Oil Corporation and Three Way Constructors, Inc., are also involved. We affirm the judgment of the trial court which awarded the Plaintiff his damages and which denied Phillips Pipeline Company any right of indemnification as to Gulf Oil Corporation. We reverse and remand for new trial that portion of the judgment which awarded a take-nothing judgment in favor of Three Way Constructors, Inc., as to Phillips Pipeline's cross-action for indemnity.

Warren Petroleum Company as a division of Gulf Oil Corporation leased from Phillips Petroleum Company a four-inch gathering line for the purpose of carrying liquified petroleum gases. The gathering line ran from a location in Coke County west

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through Sterling County to a location in Glasscock County. Warren had, in connection with this lease and on the same day, entered into a Pipeline Service Agreement with Phillips Pipeline Company whereby the latter agreed to repair leaks and cathodic protection. On November 30, 1977, a rancher reported to Phillips Pipeline Company, a gas leak on the line about fifteen miles north of Sterling City. Phillips Pipeline, through its natural gas liquids maintenance supervisor, Raymond Oehler, inspected the site of the leak and reported to Ed Foster, also of Phillips Pipeline and who was in charge of all liquid pipeline in the area, and they decided to repair the line the following day. On the following day, Oehler and another Phillips Pipeline employee led a crew from Three Way Constructors, Inc., to the location of the leak. Three Way had previously entered into a contract with Phillips Pipeline to furnish necessary work and had a crew which was devoted solely to doing repairs for Phillips Pipeline. The Plaintiff Richardson was a part of that crew. Once at the site of the leak, the Three Way crew dug out the ground around the leak. There was a conflict in the testimony about the character of the leak and as to how much pressure was in the line at the time it was to be repaired. Oehler and Walter Williams, employees for Phillips Pipeline, maintained that there was a pinhole in the pipe and that the pressure was at 725 psi and dropping. Plaintiff testified that there was a three quarters of an inch split in the seam of the pipe, that he overheard Oehler and Williams say that the line had 850 psi and that Williams was concerned about that high pressure. Oehler, as the supervisor on location, decided to repair the line with a clamp rather than bleed the line and replace it with a joint. Williams then attempted to place the clamp on the line while the Plaintiff Richardson stood nearby with a fire extinguisher. In the process, the line erupted, blowing out gas and debris, causing the injuries to Richardson for which he brought suit.

The Plaintiff sued Phillips Petroleum Company, Phillips Pipeline Company and Gulf Oil Corporation for damages for his injuries from the alleged negligent conduct of the Defendants in repairing the gas pipeline leak. Phillips Pipeline filed a cross-action and pled for indemnity from Gulf and filed a third party complaint for indemnity against Three Way Constructors. At the close of the Plaintiff's case, the trial court granted directed verdicts for Gulf and Phillips Petroleum against Richardson and at the close of all the evidence, a directed verdict was entered in favor of Gulf as to Phillips Pipeline's cross-action.

In response to special issues, the jury found that Phillips Pipeline acting through Oehler, was negligent in attempting to repair the leak with a bolt on leak clamp and that such negligence was a proximate cause of the accident. The jury then found that the Plaintiff knew of the risk of working on the gas line but failed to find that he was negligent. The trial court submitted a comparative negligence issue between only Richardson and Phillips Pipeline. The jury attributed zero percent negligence to the Plaintiff and fifty percent to Phillips Pipeline, acting by and through its employee Oehler. The jury awarded the Plaintiff $100,000.00 compensation for his injuries. Judgment was then rendered on the verdict of the jury that the Plaintiff and his workman's compensation carrier--intervenor--have judgment against Phillips Pipeline in the sum of $100,000.00 and that Phillips Pipeline take nothing as to its cross-action against Three Way.

In Points of Error Nos. One, Two and Eight, Phillips Pipeline argues that to the full extent of the Plaintiff's judgment, it is entitled to be indemnified against its own negligence by Gulf by virtue of the indemnity clause contained in paragraph 8 of the Pipeline Service Agreement made between Warren and Phillips Pipeline. That clause is as follows:

Warren agrees to assume the entire responsibility and liability for losses, expenses, damages, demands and claims in connection with and arising out of any injury or alleged injury to persons or damage or alleged damage to property (other than property of Phillips Pipe) sustained

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or alleged to have been sustained in connection with or to have risen out of in any way the work performed by Phillips Pipe, its servants, employees, agents or independent contractors under the terms of this agreement and to indemnify Phillips Pipe from and against any and all such losses, expenses, damages, demands and claims, except to the extent that such losses, expenses, damages, demands and claims are covered by Phillips Pipe's Workman's Compensation Insurance.

In order for an indemnity agreement to protect an indemnitee from the consequences of its own negligence, the obligation of the indemnitor to do so need not be stated in so many words, but must be expressed in clear and unequivocal terms. Firemen's Fund Insurance Co. v. Commercial Standard Insurance Co., 490 S.W.2d 818, 882 (Tex.1973); Sira & Payne, Inc. v. Wallace & Riddle, 484 S.W.2d 559, 561 (Tex.1972); Joe Adams & Son v. McCann Construction Co., 475 S.W.2d 721, 723 (Tex.1972). Texas courts have been progressively stricter in applying the "clear and unequivocal" rule in the sundry cases that have dealt with the issue over the last three decades. Eastman Kodak Co. v. Exxon Corp., 603 S.W.2d 208, 211 (Tex.1980). However, as noted in Firemen's Fund, supra, there exist exceptions where broad general statements of indemnification will create an indemnity obligation as to the consequences of the indemnitee's negligence and one concerns "agreements in which one person clearly undertakes to indemnify another against liability for injuries or damages caused by defects in certain premises or resulting from the maintenance or operation of a specified instrumentality...."

Phillips Pipe argues that the contract...

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19 practice notes
  • Elbaor v. Smith, No. D-1163
    • United States
    • Supreme Court of Texas
    • December 2, 1992
    ...against whom the questions were refused and if it supports the question then it must be submitted"); Phillips Pipeline Co. v. Richardson, 680 S.W.2d 43, 48 (Tex.App.--El Paso 1984, no writ) ("evidence must be considered most favorably in behalf of the party against whom the issues were refu......
  • Hill v. Heritage Resources, Inc., No. 08-93-00266-CV
    • United States
    • Court of Appeals of Texas
    • December 31, 1997
    ...and for new trial. These are all predicated upon a question of law reviewable by this Court de novo. Phillips Pipeline Co. v. Richardson, 680 S.W.2d 43, 48 (Tex.App.--El Paso 1984, no writ)(jury questions); State Nat'l Bank of El Paso v. Farah Mfg. Co., Inc., 678 S.W.2d 661, 669 (Tex.App.--......
  • Cunningham v. Haroona, No. 02–07–00231–CV.
    • United States
    • Court of Appeals of Texas
    • October 18, 2012
    ...trial court had instructed a verdict against the party seeking the submission. [382 S.W.3d 507]Id.;Phillips Pipeline Co. v. Richardson, 680 S.W.2d 43, 48 (Tex.App.-El Paso 1984, no writ). We consider the evidence in the light most favorable to the party whose questions were refused; if ther......
  • Stewart & Stevenson, LLC v. Foret, NO. 01-11-01032-CV
    • United States
    • Court of Appeals of Texas
    • August 15, 2013
    ...v. O'Byrne, 996 S.W.2d 854, 862 (Tex. 1999) (Baker, J., dissenting); Brown, 685 S.W.2d at 641-42; Phillips Pipeline Co. v. Richardson, 680 S.W.2d 43, 48 (Tex. App.—El Paso 1984, no writ). The Texas Civil Practice and Remedies Code provides that,(a) The trier of fact, as to each cause of act......
  • Request a trial to view additional results
19 cases
  • Elbaor v. Smith, No. D-1163
    • United States
    • Supreme Court of Texas
    • December 2, 1992
    ...against whom the questions were refused and if it supports the question then it must be submitted"); Phillips Pipeline Co. v. Richardson, 680 S.W.2d 43, 48 (Tex.App.--El Paso 1984, no writ) ("evidence must be considered most favorably in behalf of the party against whom the issues were refu......
  • Hill v. Heritage Resources, Inc., No. 08-93-00266-CV
    • United States
    • Court of Appeals of Texas
    • December 31, 1997
    ...and for new trial. These are all predicated upon a question of law reviewable by this Court de novo. Phillips Pipeline Co. v. Richardson, 680 S.W.2d 43, 48 (Tex.App.--El Paso 1984, no writ)(jury questions); State Nat'l Bank of El Paso v. Farah Mfg. Co., Inc., 678 S.W.2d 661, 669 (Tex.App.--......
  • Cunningham v. Haroona, No. 02–07–00231–CV.
    • United States
    • Court of Appeals of Texas
    • October 18, 2012
    ...trial court had instructed a verdict against the party seeking the submission. [382 S.W.3d 507]Id.;Phillips Pipeline Co. v. Richardson, 680 S.W.2d 43, 48 (Tex.App.-El Paso 1984, no writ). We consider the evidence in the light most favorable to the party whose questions were refused; if ther......
  • Stewart & Stevenson, LLC v. Foret, NO. 01-11-01032-CV
    • United States
    • Court of Appeals of Texas
    • August 15, 2013
    ...v. O'Byrne, 996 S.W.2d 854, 862 (Tex. 1999) (Baker, J., dissenting); Brown, 685 S.W.2d at 641-42; Phillips Pipeline Co. v. Richardson, 680 S.W.2d 43, 48 (Tex. App.—El Paso 1984, no writ). The Texas Civil Practice and Remedies Code provides that,(a) The trier of fact, as to each cause of act......
  • Request a trial to view additional results

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