Donald B. Mullins and Blue Sky Right of Way, L.L.C. v. Martinez R.O.W., LLC F/K/A Martinez Investments
01-15-00152-CV
| Tex. App. | Aug 26, 2015Background
- Martinez R.O.W., LLC (Martinez) subcontracted with Blue Sky Right of Way (owned/controlled by Mullins) to provide labor; Martinez employee Bonifacio Gomez was injured on the job and sued Mullins.
- Mullins (styled his pleading as a cross‑claim) sought contractual indemnity and contribution from Martinez for any liability to Gomez; Martinez asserted it was a workers’ compensation subscriber and moved for summary judgment under Tex. Labor Code § 417.004.
- § 417.004 bars a third party’s reimbursement/indemnity/contribution claim against a covered employer unless the employer executed a written agreement to assume the third party’s liability before the injury.
- Martinez produced summary judgment evidence showing it had workers’ compensation coverage at the time of the accident and that no pre‑injury written indemnity/agreement existed; Mullins admitted under oath there was no written agreement.
- Mullins opposed with a certificate of insurance and portions of Martinez’s liability policy, argued those (and alleged gross negligence) satisfied exceptions; trial court excluded his late affidavits, denied continuance, granted Martinez’s summary judgment, and denied Mullins’ post‑judgment relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 417.004 bars Mullins’ indemnity/contribution claims absent a pre‑injury written agreement by Martinez | Certificate of insurance and Martinez’s liability policy show an intent or function as a written agreement to indemnify | § 417.004 bars reimbursement claims by a third party unless employer executed a pre‑injury written agreement expressly assuming liability; certificate/policy are not such an agreement | Affirmed: summary judgment proper—no written pre‑injury indemnity; certificate/policy do not satisfy § 417.004 exception |
| Whether circumstantial proof (insurance certificate/policy) can satisfy the statutory "written agreement" exception | Insurance documents suffice to show an agreement to indemnify | Certificates explicitly disclaim contractual rights; policies (even if showing coverage) do not evidence employer’s written assumption of third‑party liability | Held: rejected—insurance documents are not a written indemnity agreement under § 417.004 |
| Whether employer gross negligence creates an exception to § 417.004 for third‑party claims | Mullins argued gross negligence by Martinez should permit contribution/indemnity despite § 417.004 | No statutory or precedential support for a gross‑negligence exception to § 417.004 (except narrow death/exemplary damages remedy) | Held: rejected—no gross‑negligence exception to § 417.004 for nonfatal employee injuries |
| Whether a designation as a "responsible third party" under Chapter 33 creates a right to contribution against a covered employer | Designation of Martinez as a responsible third party subjects it to Chapter 33 contribution rules | Chapter 33 distinguishes a "responsible third party" from a "liable defendant"; contribution only against liable defendants; a covered employer cannot be a liable defendant for employee’s work‑related injury due to exclusivity of workers’ compensation | Held: rejected—responsible‑third‑party designation does not create contribution liability against a covered employer |
Key Cases Cited
- City of Beaumont v. Graham, 441 S.W.2d 829 (Tex. 1969) (written indemnity must show intent to indemnify third party for its own negligence to satisfy the exception)
- Ensearch Corp. v. Parker, 794 S.W.2d 2 (Tex. 1990) (indemnity language that expressly assumes liability regardless of owner’s negligence can satisfy the statutory exception)
- Gilbane Bldg. Co. v. Keystone Structural Concrete, 263 S.W.3d 291 (Tex. App.—Houston [1st Dist.] 2007) (§ 417.004 bars breach‑of‑contract claims that are essentially indemnity claims where employer/subscriber gave no pre‑injury written agreement)
- Monsanto Co. v. Owens‑Corning Fiberglas Corp., 764 S.W.2d 293 (Tex. App.—Houston [1st Dist.] 1988) (a written indemnity provision must satisfy express‑negligence requirements; ambiguous indemnity fails to escape workers’ comp bar)
- City of El Paso v. Collins, 440 S.W.3d 879 (Tex. App.—El Paso 2013) (designation as responsible third party does not by itself impose liability; Chapter 33 does not convert a responsible third party into a liable defendant)