Epco Holdings, Inc. v. Chicago Bridge & Iron Co.
2011 Tex. App. LEXIS 8216
| Tex. App. | 2011Background
- A fire at Epco/Enterprise’s cryogenic plant prompted claims against Chicago Bridge & Iron and Howe-Baker for design flaws, including catwalks.
- Plaintiffs filed suit on March 24, 2010, before expiration of limitations, but did not contemporaneously file a certificate of merit.
- Six months later, plaintiffs filed a certificate of merit related to catwalk-design negligence and an amended petition claiming time constraints prevented earlier filing.
- Defendants moved to dismiss under Tex. Civ. Prac. & Rem. Code § 150.002, arguing failure to comply with the certificate-of-merit requirements warranted dismissal.
- Trial court granted dismissal of all claims against defendants; appellants challenged only the catwalk-design claims, arguing error in dismissal.
- Court of Appeals reversed as to the catwalk-design claims, affirmed the rest, and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does § 150.002(c) require the § 150.002(c) allegation in the first-filed petition? | Epco/Enterprise contend no; allegation may be in amended pleading. | Chicago Bridge/Howe-Baker contend count requires first-petition allegation to trigger extension. | Allegation not required in first petition; amendment suffices within 30 days. |
| Did appellants satisfy § 150.002(c) by filing a merit and alleging inability within 30 days? | Plaintiffs filed certificate and alleged time constraints within 30 days. | Defendants contend failure to allege Inability Allegation in initial pleading warrants dismissal. | Yes for catwalk-design claims; the extended 30-day period may apply when properly alleged. |
| Did the trial court abuse its discretion in dismissing catwalk-design claims under § 150.002? | Court misapplied § 150.002 and should have allowed extension and amendment. | Statute requires strict compliance; dismissal was proper. | Yes, the trial court abused its discretion; catwalk-design claims reasoning reversed and remanded. |
Key Cases Cited
- Nangia v. Taylor, 338 S.W.3d 768 (Tex.App.-Beaumont 2011) (affirmed extension reasoning for amended pleadings within extended period)
- Sharp Eng'g v. Luis, 321 S.W.3d 748 (Tex.App.-Houston [14th Dist.] 2010) (statutory construction of certificate-of-merit and timing regarding extensions)