Watson v. Glens Falls Ins. Co.

• Decision Date: 30 November 1972
• Docket Number: No. 15988,15988
• Citation: 489 S.W.2d 322
• Parties: Francia K. WATSON, Guardian of the Estate of Travis H. Watson, N.C.M., Appellant, v. GLENS FALLS INSURANCE COMPANY, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 322

489 S.W.2d 322

Francia K. WATSON, Guardian of the Estate of Travis H Watson, N.C.M., Appellant, v. GLENS FALLS INSURANCE COMPANY, Appellee.

No. 15988.

Court of Civil Appeals of Texas Houston (1st Dist.).

Nov. 30, 1972.

Rehearing Denied Dec. 28, 1972.

Foreman, Dyess, Prewett & Henderson, A. D. Dyess, Houston, for appellant.

Fulbright, Crooker & Jaworski, William H. Payne, Russell H. McMains, Houston, for appellee.

PEDEN, Justice.

Appeal from the granting of a summary judgment in favor of a workmen's compensation insurance carrier upholding the carrier's position that the appellant's claim was barred as a matter of law as a result of her election to prosecute her third-party action.

There is no dispute as to the material facts. Mr. Travis H. Watson was severely injured while working in the employ of Shelton W. Greer Co., Inc., a subcontractor of Pence Construction Corp. A claim was filed on Mr. Watson's behalf against Glens Falls Insur. Co. with the Industrial Accident Board, and the Board entered an award in his favor on November 27, 1968. Thereafter on January 3, 1969, the appellant obtained authority from the Probate Court and filed a third-party action against Pence Construction Corp., alleging that Watson's injuries were proximately caused by its negligence. That cause has been concluded. See Pence Construction Corp. v. Watson, 470 S.W.2d 637 (Tex.1971).

Subsequent to her filing of the third-party action, the appellant filed a second claim and received an award from the Industrial Accident Board for medical expenses incurred during the six months following the first award. The injuries in question were the same ones which were the basis of the third-party action. Glens Falls timely appealed the second award of the Board by filing this suit, and the appellant filed a cross-action under the Workmen's Compensation Act for the medical expenses in question.

Mr. Watson's employer, Shelton W. Greer Co., Inc., had executed a written indemnity agreement with Pence Construction Corp. whereby the Greer Co. obligated itself to 'protect, indemnity and save Pence Construction Corporation and Owner harmless from any and all claims, suits and actions of any kind or description, for damage or injuries to persons or property received or sustained by any party or parties through or on account of any act or in connection with the work of the Contractor or its agents or servants or sub-contractors, or any default or omission of the Contractor, or its agents or servants or sub-contractors in the performance of this contract, or through the use of improper or defective materials or tools, or on account of injury or damage to adjacent buildings or property occasioned by work under this contract, or through failure to give the usual requisite and suitable notices to all parties, whose persons, estates or premises may be, in any way, interested in or affected by the performance of this work, at its own cost shall defend any and all suits or actions that may be brought against Pence Construction Corporation or Owner by reason thereof, and in the event of the failure of the Contractor to defend such suits Pence Construction Corporation shall have the right and power to defend same and charge all costs of such defense to the Contractor or its Surety.

'The Contractor shall carry Workmen's Compensation and Public Liability insurance with responsible companies satisfactory to Pence Construction Corporation, and in limits of not less than five thousand dollars for any one person and ten thousand dollars for any one accident.'

Glens Falls Insurance Co. provided the Greer Co. with both liability and workmen's compensation insurance coverage. The liability coverage included coverage for contractual liability.

The appellant's only point of error is that the trial court erred in granting the appellee's motion for summary judgment because the appellee, as the liability insurance carrier for Shelton W. Greer Co Inc., had no valuable right of subrogation by reason of the indemnity agreement between the Greer Co. as indemnitor and Pence Construction Corp. as indemnitee.

Appellant contends that since the indemnity agreement between Greer and Pence makes Glens Falls both the...