417 S.W.3d 507
Tex. App.2013Background
- Nichirin-Flex U.S.A., Inc. owns a 36,000 sq ft flat‑roofed commercial warehouse in El Paso; roof leaks had developed and water was entering the building.
- Nichirin hired SPF Foam Roofing (owned by Pablo Covarrubias) to apply a coating to stop leaks; Nichirin selected a limited repair option (Option #1).
- Jessica Montoya, an SPF helper, began work on the roof cleaning near a parapet on August 24, 2010, without fall restraints and fell through a corroded section ~30 feet to the warehouse floor, dying from blunt force injuries.
- Veronica Montoya (individually and as estate representative) sued Nichirin for premises liability; Nichirin moved for traditional summary judgment invoking Chapter 95 of the Texas Civil Practice & Remedies Code.
- The trial court granted summary judgment for Nichirin and severed the claim; Montoya appealed, arguing (1) Chapter 95 does not apply because SPF was performing maintenance (not repair/renovation/modification) and (2) the injury did not arise from the improvement that was the object of the work.
- The court affirmed, holding SPF’s coating application constituted repair under Section 95.002(2) and that Chapter 95 applies where the injury is related to work being performed on an improvement even if the exact defect was not the specific object of the contractor’s work.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether SPF was "constructing, repairing, renovating, or modifying" an improvement under §95.002(2) | Montoya: application of the coating was routine maintenance, not repair | Nichirin: coating was applied to stop leaks and thus constituted repair/renovation/modification | Held: application of elastomeric coating to stop leaks is repair under ordinary meanings; Chapter 95 covers the claim |
| Whether the death "resulted from a condition of the improvement which was the object of her work" | Montoya: the collapsed section was 8–10 ft from work area, so injury did not arise from the improvement being repaired | Nichirin: injury related to roof work and Chapter 95 does not require the defect be the exact object of the contractor’s task | Held: Chapter 95 applies when injuries relate to work on an improvement; court follows Fisher rationale and applied §95 here |
| Whether conclusory testimony that the work was "maintenance" creates fact issue | Montoya: SPF personnel and Nichirin employee called the work maintenance | Nichirin: those statements are conclusory legal conclusions insufficient to defeat summary judgment | Held: such testimony was conclusory and did not create a genuine fact issue |
| Whether federal cases (e.g., Moore) limit §95 to "expert" or "inherently dangerous" work | Montoya: reliance on Moore to argue §95 should not apply to routine, non‑dangerous tasks | Nichirin: §95 text contains no such limitation; Moore grafts extra requirements | Held: court declines Moore’s narrower approach; statutory language controls |
Key Cases Cited
- Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985) (summary judgment standard)
- Fisher v. Lee & Chang P’ship, 16 S.W.3d 198 (Tex.App.—Houston [1st Dist.] 2000) (§95 applies when injury relates to work on an improvement; defect need not be the exact object of work)
- Francis v. Coastal Oil & Gas Corp., 130 S.W.3d 76 (Tex.App.—Houston [1st Dist.] 2003) (cleaning a gas well to rehabilitate it constituted repair/renovation under §95)
- Chi Energy, Inc. v. Urias, 156 S.W.3d 873 (Tex.App.—El Paso 2005) (context on Chapter 95’s enactment and purpose)
- Covarrubias v. Diamond Shamrock Refining Co., L.P., 359 S.W.3d 298 (Tex.App.—San Antonio 2012) (Chapter 95 applied though the injurious defect was not the specific object of the contractor’s work)