395 S.W.3d 335
Tex. App.2013Background
- Dow appeals a jury verdict over wrongful death/survivor claims arising from asbestos exposure at Dow's Freeport facility; Henderson worked there via Win-Way and was exposed to Dow employees' activities nearby.
- MDL pretrial court granted Dow summary judgment on claims arising from respirable asbestos exposure due to contractor activities; other claims remained for trial.
- Jury apportioned 30% of fault to Dow; trial court entered judgment against Dow for $2.64 million plus costs.
- Dow moved for judgment notwithstanding verdict arguing Chapter 95 bars all claims or, at minimum, requires control and actual knowledge; trial court denied.
- Court concludes Chapter 95 applies to all claims and appellees failed to prove control or actual knowledge; reverses and renders take-nothing judgment for Dow.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Chapter 95 applies to all claims against Dow | Dow argues Chapter 95 bars all claims | Appellees contend Chapter 95 does not apply when injury stems from Dow's own employees or different improvement | Chapter 95 applies to all claims; appellees failed to prove control and actual knowledge |
Key Cases Cited
- Hernandez v. Brinker International, Inc., 285 S.W.3d 152 (Tex. App.—Houston [14th Dist.] 2009) (limits Chapter 95 where injury not tied to contractor's work)
- Vanderbeek v. San Jacinto Methodist Hosp., 246 S.W.3d 346 (Tex. App.—Houston [14th Dist.] 2008) (requires control and knowledge for owner liability under 95.003)
- Francis v. Coastal Oil & Gas Corp., 130 S.W.3d 76 (Tex. App.—Houston [1st Dist.] 2003) (addresses scope and elements of Chapter 95 applicability)
- Gorman v. Ngo H. Meng, 335 S.W.3d 797 (Tex. App.—Dallas 2011) (discusses contractor control/means of work for 95.003)
- Hernandez (plurality discussion), 285 S.W.3d 152 (Tex. App.—Houston [14th Dist.] 2009) (relevant to 95's scope despite multiple opinions)