*1 H7 ENGINEERING, & GAY BROWN
INC., Petitioner,
See also
Zuleima Representative of the Estate of Olivares, Jr., Olivares,
Pedro & Pedro
Respondents
No. 13-0605
Supreme Court of Texas.
Argued October
Opinion April Delivered:
H9 seeking sovereign-immu- diction the same nity protection unit enjoy had it performed the work itself. The trial court granted plea, reversed, but the court of appeals holding *3 firm was not immune from suit. extending sovereign We hold that immuni- ty engineering to the firm does not serve purposes doctrine, underlying the and we According- therefore decline to do so. ly, we affirm the court of appeals’ judg- ment. Background
I. During early January hours of Allensworth, R. Allens- Will W. William 2007, an intoxicated driver an entered exit worth, L.L.P., Aus- Allensworth & Porter ramp Westpark Tollway of the in Fort tin, for Amicus Curiae American Council County. proceeded Bend He east Engineering Companies of Texas. westbound lanes for approximately eight LLP, Murray Beck Fogler, Redden miles before with a car driven colliding Houston, party for other interested Mike Olivares, Pedro Jrl Both drivers were Inc. Enterprises, Stone killed. Higgins, Sean Wilson Elser Moskowitz County portion The Fort Bend of the LLP, Houston, for Pe- Edelman & Dicker Tollway fell the purview under of the Fort titioner Brown & Inc. Engineering, County Authority, Bend Toll Road a local & Kelly, Kelly, Durham Pit- Peter M. government corporation design, created to tard, L.L.P., Molina, Ricardo Molina Law build, Tollway. operate Rather Firm, Houston, Respondent for Zuleima government employees than utilize to car- Olivares, Individually Repre- and as the ry Authority responsibilities, out its Olivares, sentative of the Estate of Pedro Engineering entered into an Services Jr., & Pedro Olivares. with Brown Agreement Gay Engineer- Transportation Inc. to Texas ing, pursuant opinion Justice Lehrmann dеlivered the 431.066(b), section which authorizes Code Court, Green, of the in which Justice to retain government corporations local Johnson, Boyd, and Justice Justice Justice required develop “engineering services joined. Devine transportation facility system.” Un- Authority delegat- sovereign immunity agreement, The doctrine of bars der that responsibility designing road against legisla- suit absent ed the layouts Gay, private engi- signs and traffic to Brown & tive consent. subject Authority’s neering lawfully approval firm contracted with a of Directors.1 Brown & design unit to and construct Board contractually responsible furnishing firm roadway, party and a third sued the responsi- necessary equipment personnel its negligence carrying out required to juris- perform firm its duties and was plea bilities. The filed Authority ployees. 1. The maintаined no full-time em- project, governmental immunity.
maintain insurance for the includ- tied to See Tex. compensation, commercial Adjutant workers’ Ngakoue, General’s Office liability, business automobile liabil- general (Tex.2013) 350, 356 (explaining ity, liability, profes- excess umbrella against acting a suit official liability. sional capacity “merely in an official another way pleading against an action the enti- mother, individually and Olivares’s (inter- ty agent” the official an estate, which representative of his and his father omitted)). nal Authority Gay, quotation and Brown & marks and citation sued othefs,2 among alleging the failure to granted plea, The trial court design signs, install proper warning reversed, appeals court of holding flashers, and other traffic-control devices govern- was not entitled to around the exit where the intoxicat- ramp mental an immunity because was inde- *4 Tollway proximately ed driver entered the contractor, pendent not an “employee” of Authority caused Olivares’s death. The Authority as term is defined plea jurisdiction govern- filed a to the on the Texas Act.3 401 Tort Claims S.W.3d mental-immunity grounds. The trial court 363, (Tex.App.-Houston 378-79 [14th plea, interlocutory ap- on denied 2013). Dist.] reversed, peal of appeals holding the court Court, Gay argues this Brown & Authority was immune from independent its status as an discretionary claims on its based acts re- government employee rather than a does placement sufficiency lated to the of not foreclose its entitlement to the same signs and other traffic-control and traffic- immunity Authority. afforded to the It safety Cnty. devicеs. Fort Bend Toll Olivares, 114, argues that the appeals’ Road Auth. v. 316 court of reliance S.W.3d (Tex.App.-Houston 121-26 Tort misplaced [14th Claims Act was Dist.] 2010, pet.). appeals The court of re- ‘employee’ because the Act “uses to delin- give manded the case to the trial court to eate the govern- circumstances where the opportunity the Olivareses an to amend ment will be liable under a waiver of im- remand, pleadings. their Id. at 129. On munity,” not “to limit scope of ... Authority, Olivareses nonsuited the governmental unwaived immunity.” whose longer is no at issue in Brown & argues pur- further proceeding. this poses sovereign immunity of are served extending it to entities then plea filed its own jurisdiction, governmental authorized arguing that it was an functions employee Authority of the in which the being sued itself would be im- capacity its official and was therefore enti- mune. initially Authority, The Olivareses sued "employee” 3. The Tort Claims Act defines as County, County, Harris Fort Bend the Texas person, including agent, "a an officer or who Department Transportation, of and the Harris paid governmental is in the service of a unit County Authority. They Toll Road amended by competent authority, but does not include petition their to add Brown & and Mi- contractor, independent agent an an or em- Enterprises, chael Stone Inc. as defendants. contractor, ployee of an a TxDOT, County, County, Harris Fort Bend person performs who tasks details of County Authority and the Harris Toll Road which the unit does not have Enterprises have all been nonsuited. Stone legal right to control.” Tex. Civ. Prac. & party petition not a to the for review filed in 101.001(2). Rem. Code Court.
121 relief, Legisla forms of and leaves to the Analysis II. ture the of determination when to allow Purpose Origin and of A. tax resources to “away be shifted Immunity Sovereign purposes their intended defending toward presented we are again Once paying judgments.” lawsuits and Tex. questions parameters about the Natural Res. Conservation Comm’n v. IT- immunity, the well-established sovereign (Tex.2002) Davy, 74 S.W.3d 853-54 “that ‘no can be sued in her doctrine state (plurality op.); Dep’t see also Tex. consent, her and then own courts without Sefzik, Transp. v. only in the manner indicated that con (Tex.2011) curiam) (per (noting sover ” Mexia, City Tooke v. sent.’ eign immunity “shield[s] the state from (Tex.2006) (quoting Hos S.W.3d relief,” seeking lawsuits other forms of (1847)). 1 Tex. DeYoung, ner v. just seeking money judgments). suits And developed “While inherently while connected protec doсtrine, common-law we “have consistent fisc, public tion of the ly Legislature deferred to the to waive preserves separation-of-powers principles immunity.” Corp. Reata Constr. such by preventing judiciary from interfer (Tex. Dall., City Legislature’s prerogative with the 2006) omitted). Referred to as (emphasis Hosp. allocate tax dollars. See Rusk State *5 immunity governmental applied when Black, (Tex.2012) 88, v. 392 97 S.W.3d subdivisions,4 political the state’s Travis (noting immunity that respects “the rela Norman, Appraisal Dist. v. 342 Cent. judi tionship legislative between the and (Tex.2011), 54, im S.W.3d 57-58 government”); cial branches of see also immunity both from munity encompasses Univ., Sign Fed. v. Tex. 951 S. S.W.2d liability, Reata immunity suit and from (Tex.1997) (out (Hecht, J., concurring) at 374. Immu Corp., Constr. S.W.3d financial justifi lining political modern nity liability is an affirmative defense from sovereign immunity). cations for judgment that enforcement of a bars Sovereign immunity protects thus im against governmental entity, while by preventing potential public as a whole munity against bars suit suit disruptions key government services may in a entity altogether and be raised government funds that could occur when Lueck, jurisdiction. v. plea State substantially unexpectedly are divert (Tex.2009); 290 S.W.3d Wichita by litigation. recognizes It also that ed Hosp. Taylor, Falls State Legislature responsibility has the (Tex.2003). 692, 696 public how these funds will be determine sig Although origins spent. But with this benefit comes the doctrine’s antiquated “shield[ing] public “feudal fiction that nificant cost: lie ” im wrong,’ modern-day consequences from the costs and King ‘the can do no governments,” of their justifications protecting provident revolve around actions Tooke, immu at at public treasury. Taylor, 106 S.W.3d S.W.3d сore, nity places shouldering those “protects 695. At its the doctrine the burden injured indi political consequences” from “costs and subdivisions] State its [and money other Bacon v. Tex. Historical damages” lawsuits for viduals. See sovereign immunity refer to both doctrines. 4. We will use the term throughout opinion the remainder of the Comm’n, 172 (Tex.App.- recognizes private that contractors are not (noting pet.) Austin “sover entitled to sovereign immunity under cer- eign immunity generally shields our state tain circumstances imply does not government’s improvident acts—however such immunity entities are entitled to in all harsh, improvident, unjust, infuriatingly or other situations. (inter these acts seem” boneheaded hand, On the other the Olivareses con- omitted)). quotation nal marks and citation statutory tend that affirmative extensions by foreclosing- And does so —-absent contractors in some legislative litigation judi waiver—the instances demonstrate legislative intent to cial remedies that would be available to foreclose such immunity specific absent a injured person complained-of had the legislative grant. For example, the Trans- acts private persons. been committed portation provides indepen- Code that an dent regional transporta- of a we do consider whether authority tion “performs a function of unit immune from suit authority specified or other [certain government’s immunity or whether the has damages only entities] liable for Instead, been company waived. authority extent that the or entity would performed allegedly negligent acts in be liable” for the function it- carrying governmеn- out a contract with a Transp. 452.056; § self. Tex. see Code tal unit seeks to invoke the same also id. 452.0561 (extending the same enjoys. itself With contractors of mind, the considerations outlined above entities). statutory certain transportation parties’ arguments.
we examine the
argue
Olivareses
that the absence of
legislation
similar
applicable to contractors
Extending
B. Effect of Statutes
of local
corporations like the
Immunity
Limiting
Authority
legislative
evinces
intent to de-
*6
Notwithstanding
ju
the doctrine’s
prive such
immunity.
contractors of
That
dicial origins,
parties argue
part
both
in
may be the
but it does not answer
that
Legislature
has resolved whether
the question before us.
sovereign immunity
to extend
to a private
Gay.
contractor like Brown &
Brown &
Sovereign immunity
a com
is
Gay
explicitly рrohibits
creation,
cites a statute that
mon-law
“it
judi
and
remains the
private parties
gov
that contract with the
ciary’s responsibility to define the bound
finance, construct, operate,
ernment
aries of the ... doctrine and to determine
maintain, manage
correctional facilities under what circumstances
im
sovereign
from claiming sovereign immunity in a suit munity exists in the first instance.” Reata
arising from services under the contract. Constr. Corp.,
By
we hold
matter,
As an initial
we note that Brown
Gay&
cites no evidence to support
its
Immunity
Sovereign
and
C.
justification
proposed
ignores
Private Contractors
many
play
highly
factors at
within the
Immunity
Extending Sovereign
competitive
government-contract
world of
Gay
Further
Does Not
Brown
bidding.
disregards
It also
the fact that
Purpose
Rationale
Doctrine’s
can
private companies
manage
and do
insurance,
exposure by obtaining
their risk
analysis of whether to
Guiding our
Gay
as Brown &
did in this case. But
immunity to
con
extend
assuming
holding private
even
entities
Gay whether do
like Brown &
tractors
for their own
in fact
negligence
liable
with and furthers
comports
so
contracting
makes
with those entities more
justify
this other
legitimate purposes
expensive
government,
argu-
for the
Brown &
con
harsh doctrine.
wise
immu-
supports extending sovereign
ment
immunity serves
extending
tends
if
nity
to these contractors
the doc-
disagree.
purposes.
these
We
strictly a cost-saving
trine is
measure.
It
Seizing
general purpose
pro-
is not.
fisc,
Brown &
ar-
tecting
public
Sovereign immunity
con-
has never been de-
gues
money
any
save the
fended as a mechanism to avoid
tractors will
specifically,
public expenditures.
while
all increases
Rath-
long
in the
term. More
er,
exposure
designed
guard against
that its
it was
Gay recognizes
Brown &
money judgment
expenditures”
“unforeseen
associated with
to defense costs and
Tollway
government’s defending
lawsuits and
project’s
will not affect the
cost
hamper gov-
“that could
paying judgments
asserts that
government,
generally
diverting
costs
associated
ernment
functions”
funds
the increased
purposes. Sefzik,
their
litigation exposure
contractors’
will be
allocated
621;
resulting
IT-Davy,
at
6. To that
is correct
Wildlife
Miranda,
(Tex.2004).
sovereign
the Tort Claims Act does not creаte
immunity;
“provides a limited waiver” of
contrast,
immunizing
govern-
While
By
sovereign immunity protects the
political
and its
sub-
entities,
the State
ment —both
activities of
no sov-
directly
divisions—from suit
serves
ereign is entitled to extend that protec-
purposes because
costs asso-
doctrine’s
through
tion ad
more
nothing
infinitum
potential
lawsuit cannot be
ciated with
private
than
private
contracts.
en-
[The
project’s
Litiga-
at the
outset.
anticipated
tity] is not entitled to
immuni-
sovereign
therefore dis-
against
tion
ty protection unless it can demonstrate
allocation of
funds
rupts
its actions were actions of the Kansas
end,
only option may
the back
when
government,
subject
executed
money previously earmarked
be to divert
system].
control of [the
It
purpose.7
is this diver-
for another
turn,
Id. at 597. In
we held that another
of disrupting
sion—and the associated risk
private company
“operate[d] solely
services—that
im-
upon the
system]”
direction of [the
munity
Accordingly, the ratio-
addresses.
no discretion in
“exercise[d]
its activities”
underlying
nale
the doctrine of
indistinguishable
system,
from the
immunity
support extending
does not
such that “a
against
lawsuit
one
[wa]s
Gay.
to Brown &
against
lawsuit
the other.” Id. This rea-
soning implies
private
parties exercis-
Sovereign Immunity
2.
Ex-
Does Not
ing independent discretion are not entitled
Companies
tend to Private
Exercis-
to sovereign immunity.
ing Independent Discretion
requirement
control
in
discussed
directly
have never
addressed
We
K.D.F.
reasoning
consistent with the
private gov
the extension of
federal courts have
in extending
utilized
contractors,
analysis
but our
ernment
derivative
to federal contractors
Rex,
(Tex.1994),
K.D.F. v.
125 several dikes im attached to the ment to construct was whether Holding that it arising at 465. security firm. Id. mune from claims the result fact that the did, relied on the the court property erosion and loss of when the orders following Saudi Arabia’s firm “was by damage allegedly was caused the expressly employee],” promote [the not to existence, dikes’ not the manner of their not [have the firm “would noting that construction). immunity” had to derivative entitled
been]
Yearsley
involving
in a case
a
We cited
sovereign made
firm rather than the
the
city
hired to build sewer lines
promotion.
the
Id.
decision to decline
the
along city-owned
easement
accordance
at 466.
city’s plans
specifications.
with the
and
im
the extension of
limitation on
This
Dietert,
156 Tex.
Glade
contractors is ech
munity
(1956).
city
had inadvertent-
example, Ack
in other cases. For
oed
ly
acquire
failed to
the entire easement as
LLC,
Dredging
federal
v. Bean
erson
plans,
reflected
the
and the contractor
alleg
damages
sued for
contractors were
trespass
bulldozing
was sued for
after
conjunction
dredging in
edly
by
caused
portion
property.
of a landowner’s
River Gulf Outlet
Mississippi
with the
(5th Cir.2009).
at issue in
While
was not
Glade
the not in-network and the was contention to share in that it is entitled the medically necessary. treatment was not Authority’s immunity solely be- held appeals Id. The court of that both the Authority statutorily cause the was author- immune agency Aetna were from suit engage Gay’s ized to services arising coverage for out of the deni- claims performed would have immune had it been However, al. Id. at the terms of the is, those That we services itself. decline to contract, relationship between the the extend to entities the same immu- contractor, state and the and the agency for nity enjoys reasons direct of state funds in that implication justifies unrelated to the rationale that case it from the at hand. distinguish case immunity place. such in the first not threaten Foster, Olivareses’ suit does allocated appeals recog-
In the court of not to funds does seek nized that Aetna had discretion to inter- merely Brown for that, hold liable follow- explained pret plan, insurance directions. Brown & with the “Aetna agency, under the contract responsible negligence for its own simply administrative services provide[d] (and as a cost of doing business to of health care to provision facilitate did) risk, just against insure Further, Id. the in- retirees.” [covered] had with a it contracted fully funded state plan surance owner. no stake in such that Aetna had a claim’s denial, agency approval or set Qualified D. and Of- Justifications agent acted plan, terms of the Aetna as an Immunity Support ficial Do Not fiduciary capacity agen- and in a Sovereign Immunity Extension cy, agreed indemnify to agency and the Parties Private obligations arising of its any
Aetna for
out
cost-saving
rationale
addition to the
good-faith performance.
at 889-90.
above,
Gay&
discussed
Brown
cites
compared
The court
Aetna
the “fiducia-
Supreme
opinion
Filarsky
ry intermediaries” discussеd in federal U.S.
Court’s
extending sovereign
holding
private company
argue
case
that “a
Delia
law
im-
contractors ad
protected by
Eleventh Amendment
avoiding
interest
munity
seeking
if
amounts
one
vances
the suit
timidity”
part
on the
“unwarranted
money
state.” Id. at
recover
—
cases).
duties.
U.S.
performing public
In this
those
(citing
no fiducia-
support its
extension
policy
nizes
concerns are
de-
hind
does
central to
regardless
a control-oriented
ciding
here
of whether
should be extended.
whether
above,
applies.
length
analysis
policy
As
be-
discussed at
*11
-,
1657, 1665, 182
to
132
L.Ed.2d 662 some resemblance
the Texas common-
S.Ct.
(2012).
Filarsky
was
The issue
whether
immunity,
law defense of official
which
government
hired to do
work
individuals
protects government
person
officers from
something
permanent
than a
“оn
other
discretionary
liability
performing
al
enjoyed
qualified
full-time basis”
same
good
scope
duties in
faith within
of
immunity
government
as traditional
em
Hatley,
authority.12
their
v.
887
Kassen
brought against
ployees
claims
them
(Tex.1994);
4,
S.W.2d
8
see also Ballan
42
under U.S.C.
Id. at 1660.
1983.
Builders,
Inc.,
tyne
144
Champion
Supreme
Court held
a
attor
that
(Tex.2004) (“Common
417,
S.W.3d
424
law
engaged by
city
investigate
ney
necessity
official
is based on
immunity
qualified
matter
assert
im
personnel
could
public
public
of
to act in the
inter
officials
munity alleging
a suit
constitutional vio
est with
confidence
without the hesi
during
lations committed
the course of the
tation
having
that could arise from
their
investigation.
Id. at
1667-68. The
continually
judgment
questioned by ex
distinguish
Court saw basis to
between
Kassen,
In
litigation.”).
tended
we noted
government employee,
a full-time
who
the well-established distinction bеtween
would be entitled to
such immunity,
assert
protects
“official
which
immunity,
individu
government
and an individual
to do
hired
liability,,
sovereign
al officials from
[and]
work
some other basis. Id.
immunity,
protects governmental
which
Gay’s
Brown &
reliance on Filar-
liability.”
entities from
887
at 8.
S.W.2d
sky's qualified-immunity analysis is mis
recognized
We also
that a
em
placed.
qualified
The federal
of
doctrine
ployee’s right
immunity
to official
unre
immunity “protects government officials
right
lated to a
plaintiffs
pursue
liability
damages
‘from
for civil
insofar as
a legislative
under
waiver
clearly
their conduct does not violate
es
immunity.
Further,
sovereign
Id.
unlike
statutory
rights
tablished
or constitutional
suit,
sovereign immunity from
which as
person
of which a reasonable
would have
noted above
be raised in a
plea
”
Callahan,
known.’ Pearson v.
555 U.S.
jurisdiction,
immunity
affir
official
is an
223, 231,
129 S.Ct.
Qualified immunity unique is a Instead, ly doctrine, federal defense are calling into satisfied here. further n Filarsky Gay argues doubt in Brown & that it relevance the issue is entitled best, case. immunity this At doctrine bears same Chambers, City immunity Lancaster v. we noted cer was to official entitled for his qualified conducting federal high-speed law on actions in chase. (Tex.1994). police evaluating instructive in whether a offi- underlying supporting Brown & cites no evidence policies enjoys. But itself simply qualified shortage willing are notwith contractors official contention. to that standing irrelevant line of cases. declining argues also contrac-
to extend III. Conclusion Brown will make it difficult tors like immuni- We decline extend engage pri- government to talented for the *12 solely ty contractors based personal liability. of parties vate fearful the nature the contractors’ work when above, fails to speculation such As noted very the provides the rationale for doctrine ability party’s a private take into account for supрort doing so. We hold that the through liability exposure manage that granting trial court in erred It the ignores also countervail- insurance. Gay’s plea jurisdiction the and that the contracting make that ing considerations appeals properly that court reversed attractive, the not with the affirm Accordingly, order. we the court of the of concern about least of which is lack judgment. appeals’ pay. ability to government’s Moreover, law a line of Texas case long filed an opinion Chief Justice Hecht government contractors’ liabili
recognizes
in
in
concurring
judgment,
the
which
high
in
their
road and
ty
negligence
for
joined.
Willett and Justice Guzman
Justice
See,
v.
e.g., Bay, Inc.
way construction.
322,
Ramos,
(Tex.App.-
139 S.W.3d
Brown
not
in the
participate
Justice
did
denied)
(holding
pet.
Antоnio
San
decision.
hired for
that a
contractor
enti
construction work was not
highway
Hecht, joined by
Justice
Chief
Justice
im
to share in the state’s
tled
Guzman, concurring
Willett
Justice
con
munity when the contractor exercised
judgment.
the
the
maintaining
siderable discretion
inju
plaintiffs
site where the
construction
An
Immunity protects
government.
the
McClelland,
occurred);
v.
ry
Overstreet
govern-
is not
independent contractor
the
(Tex.Civ.App.-Amarillo
Therefore, immunity
pro-
not
ment.
does
w.o.j.)
(holding
writ dism’d
that
independent
That sim-
tect an
contractor.
highway
hired
government contractor
for
syllogism
to me
resolve this
ple
seems
duty
had a
to exercise
construction work
case.
using
ordinary
protect
care to
travelers
may act as
independent
An
contractor
gov
the fact
the
highway despite
the
becoming
in effect
the
government,
the
itself
not be
liable for
ernment
could
held
purposes,
limited
for
or
negligence
agents);
the
of its officers
cf.
does,
it
it should be entitled to the
when
Gehring,
Strakos
immunity.
statutory
A
ex
government’s
(Tex.1962) (holding, in the context
793-94
ample
Transpor
is
452.0561 of the
Section
doctrine,
rejecting
“accepted work”
Code,
in
provides
which
that “[a]n
tation
county
contractor hired to relocate
performing
...
dependent contractor
alongside
not
fencing
widened roads was
public transportation
of [certain
function
injuries
liability
from tort
for
insulated
damages only to the
is liable for
entities]
county accepted
that occurred after
...
liable if
entity
would be
condition extent
the work but were caused
entity
...
were
premises).
left
itself
in which
contractor
cites
cases
immune
for
in rep-
function.”1 The Court
several
from suit
his conduct
examples. But an inde
providing other
resenting
governmental entity.4
Courts
pendent
acting only
contractor
in the ser
have concluded that a construction con-
govern
is not a
vice of
from
may depend,
tractor’s
suit
1 statutory example
A
this is
ment actor.
not,
on a
entity’s control
Code,
Section 495.005 of the Government
work,
over
the contractor’s
rather
provides
which
vendor
“[a]
suit complains
over whether
of the
operating under a contract
correction
[for
very
project,
existence of
a governmen-
may
al
claim
services]
facilities and
decision,
tal
opposed
the contractor’s
arising
in a suit
performance.5 A contractor
act for
performed”.2
the services
itself
liable
sense
is
an
determining
whether
work,
performance
negligent
of its
but in-
as acting
simply implementing
sofar as it
government,
govern-
of the
the extent
it is
decisions
entitled
*13
independent
ment’s control
the
con-
over
immunity.6
government’s
An
not con-
tractor’s actions is relevant but
authority
agency
contractor’s
or even
to
example,
clusive. For
the
relevant,
government
serve the
are also
lawyer
necessarily
over
is
limit-
control
its
but the ultimate issue is whether the inde-
lawyer’s duty
ed
the
under the rules of
pendent
actually
is
contractor
authorized
professional
indepen-
conduct to “exercise
government
the
to act
place.
its
judgment”
dent
professional
represent-
The Fort
County
client.3
Bend
Toll Road Au-
ing a
Thаt
limited control not-
thority
has
withstanding,
lawyer
a
been said to be
Gay
tasked Brown &
with selecting
452.0561;
Co.,
Yearsley
§
1. Tex.
also id.
see
5. See
v. W.A. Ross Constr.
309
Transp.
Code
452.056(d) ("[A]n independent
18,
§
20-21,
contractor
U.S.
60 S.Ct.
ity, or the cost insurance cover costs, conse construction
increases government,
quently contract costs response is that
long-term. The Court’s protect purpose expendi from unforeseen
tures, merely to save costs. very position
Court’s contradicted which it relies:
authority on “While sovereign immunity originated
doctrine from protect public fisc unforeseen hamper
expenditures govern that could functions, it been shield
mental has used to seeking other
the state lawsuits The Court’s restricted relief’.8
forms of is not purpose
view of the
supported by authority. death, damage, injury, property or recognized personal Legislature
7. The has also compliance compliance direction with contract the contractor is See, liability. prerequisite be for limits or to the condition defect documents material e.g., Tex. Civ. Prac. & Rem. Code 97.002 personal ("A proximate of the that was the cause repairs high- who or constructs death.”). damage, injury, property or road, way, Department street the Texas Transportation claimant is not liable Dept. Transp. Sefzik, 8. Tex. personal property damage, or injury, curiam) (Tex.2011) (per (emphasis performance arising of the death from the omitted). added) (citations if, repair at the of the construction or time