*2 WHITHAM, Before STEWART and judgment The trial court also rendered LAGARDE, JJ. Lott’s on against favor its claim Continental under its subcontract with Con- ON MOTION FOR REHEARING tinental. The court awarded its attor- neys’ fees and costs incurred successful- STEWART, Justice. ly defending the lawsuit. Continental ar- grant appellee’s We motion for rehear- gues attorneys’ that this award of fees was ing, prior opinion, our and withdraw substi- improper because no opinion opinion tute this loss. subcontract covers this Court. appeal This concerns the construction of THE AGREEMENT agreement appellant between (Continental) Company Continental Steel third-party petition appeal, and on Lott, (Lott). appellee Inc., and H.A. The Lott has based its claim for on sole agree- issue is contested whether paragraphs several in the contract between obligates ment to indemnify Continental However, Lott and Continental. we con- for Lott’s costs and incurred only provi- clude need that we consider the in its defense of claim successful based 10(a) dispose sions paragraph of this alleged negligence. on Lott’s appeal. Paragraph 10(a) provides as fol- agreement hold that the does create such lows: therefore, obligation; affirm the tri- we 10.(a) here- Subcontractor [Continental] al court’s claim. by agrees indemnify save harm- against was a less from and

Continental subcontractor Contractor [Lott] contractor, claims, demands, damages, losses, general ex- at a construction costs, Dallas, liabilities, injuries, parties’ penses, site in Texas. subcon- injury agreement provisions arising tract causes of from action damage arising whereby agreed persons property Continental of, with, out connected or incident to the Lott for certain claims work hereunder, performance of the ex- Gregory the subcontract. When work cept injured construction in cases of sole Williams was at the site, part Contractor, Company Insurance and Subcontrac- Union Standard paid compensation. workers’ tor and all such actions Williams As will defend subrogee, pay company brought against Williams’ then filed Contractor will such any judgment rendered in suits and Lott and several subcon- recoup payments pursuant will Contractor tractors to reimburse expenses includ- expenditures article Texas Re- for all section 6a of the fees, ing made or vised intervened court costs and counsel Civil Statutes. Williams plaintiff by reason of such as a his own Williams’ Contractor behalf. petition alleged through various suits. Supreme Court has not addressed

DISCUSSION question of whether argues that the the indemnitee has been applies rule 10(a) speak specifically do not negligent. following found For the in- for the *3 reasons, to extend this rule to we decline therefore, negligence; this demnitee’s covering losses which indemnity provisions paragraph violates the negli- not from the indemnitee’s do result pronounced Corp. in Ethyl doctrine gence. Co., 705, Daniel Construction 725 S.W.2d (Tex.1987). adoption 708 It that the the clear and un Cases negligence express of the doctrine was sim- rule, prior equivocal applied which ply expression one of the court’s concern negli express Ethyl adoption court’s ingeniously vague and indemni- with broad doctrine, apply rule to gence did not that be, were, ty contracts which could and con- indemnity provisions. contrary, To the all not within the con- strued to cover matters prove he if an indemnitee could was parties; templation Ethyl that the law, negligent matter of he was enti as a policy disapproving court enunciated a summary judgment claim for tled to a on a ambiguous indemnity provisions, just provided. was & which Sira to the indemnitee’s own those related Riddle, Payne 484 S.W.2d v. Wallace & that, gence; specif- and because there is no 559, (Tex.1972). Moreover, it 561 was indemnifying Lott for its ic to establish the indem- indemnitor’s burden action, defending attorney fees in duty to in negligence nitee’s to avoid the not, whether successful demnify. Eng’g Corp. v. Delta Warren held for Lott’s defense should not be liable 770, Petroleum, (Tex.App. 772 S.W.2d costs. 1984, writ ref’d n.r. —Houston [1st Dist.] e.); Serv., Inc. v. Oil Copeland Well Shell hand, on the other contends — Co., 317, (Tex.Civ.App Ethyl only court was concerned 1975, Tyler, w.o.j.). dism’d writ negli that for an indemnitee’s own gence expressly require stated analogous closely case is Copeland The ments of the Shell, the case at bar. on its facts to separate do not to the other and indemnitee, sought Cope to recover from obligations distinct the indem indemnitor, land, expenses it in nity provision; jury found Lott ultimately reason curred in negligent; was not that the defense costs negligence against it. ably settling a action were, thus, negli not incurred due to its Copeland contended that plaintiffs’ filing but due to invalid agreement was unenforceable performance claims which arose out of the unequivocal rule. The trial court clear and subcontract; of work under negligent was not found that Shell therefore, negligence express rule is amount and it both the settlement awarded inapplicable to the issue before this court. in other fees and defending plaintiff’s court curred in suit. Ethyl

We with Lott that the affirmed; Appeals it noted only liability addressed for the indemnitee’s Court of Civil sole, could not joint or con- that an indemnitor’s defense whether There, unequivocal clear and rule current. based on the negligence unless indemnitee’s caused the indemnitee had been found of indemnitee’s jury. Supreme recently casualty made the basis purpose adopting the contract. at 320. Because repeated that its suit on Id. finding negligence require Copeland failed to rule is “to obtain negli conclusively the intent establish that Shell was scriveners to make it clear when agree exculpate gent, validity an indemnitee negligence.” play, never came into and the Court for the indemnitee’s own At- ment question of Person- did not reach the whether lantic Co. v. Petroleum Richfield Inc., pro nel, indemnity agreement sufficient to tect Shell its own negligent, Id. found not then the courts Cruz, Drilling Accord Delta Co. v. Masonry, Richfield, Coast Atlantic Gulf (Tex.App. Corpus jurisdictional S.W.2d 668-69 and Adams committed error n.r.e.); ref Christi writ 'd proportions they M.M. Sundt constitutional Equip. advisory is, Constr. Co. v. 656 issued opinions; Contractors a subse- quent finding Paso mean would — El writ). no We can discern no indication unen- change forceable, court intended to the law but a finding cases; espoused in consequently, these we would in an result enforceable they validity provision. conclude that have disagree continued with Continental’s *4 express negligence under the doctrine. Ac contentions. cordingly, express negli we hold that the erroneously Continental assumes that application doctrine has to the express negligence applies the doctrine re- an duty determination of indemnitor’s to gardless the of nature indemnitee’s indemnify when is an indemnitee found not claim indemnity. for Lott’s claim is for and, thus, seeking is reimburse costs the successful defense of ment losses that do arise from not cases, a negligence claim. In the cited the consequences negligence. its of To was only issue whether the indemnitor contrary, the we do not reach the enforce would liable for judgment rendered ability issue under the against underlying in the the indemnitee seeking doctrine unless the indemnitee suit. issue This could be determined the consequences

reimbursement for its the the examining nature of claims assert- negligence. by construing ed by plaintiff the the cases, argues duty agreement.

Continental also that to In three dependent plaintiff’s grounded is not on the outcome was indem- suit the cases, underlying suit but on the nature of nitee’s In each of these plaintiff the claims that the to in- duty asserts court determined that Masonry demnify indemnitee. of the indem- See Coast v. Gulf Owens-Illinois, Inc., 239, negligence would arise 739 S.W.2d 239 nitee’s own never (Tex.1987); allegedly indemnity provision Atlantic Co. v. Pe because the Richfield Personnel, Inc., did covering type 758 loss not meet troleum S.W.2d this 1988), (Tex.App. Corpus requirements 844-45 Christi ad- grounds, on other S.W.2d 724 Because none these suits rev’d doctrine. (Tex.1989); Spring Valley v. dressed the indemnitor’s Adams Co., negligent, con- indemnitee is found not we Constr. n.r.e.). issue they inapplicable ref’d Other clude are to the —Dallas writ wise, contends, it the courts in these sum before court. this would have mary cases not ruled that, next because Continental indemnity provisions at issue unen Lott’s based on underlying express negligence doc forceable under the allegedly claim excluded respec trine before the ex- the indemnification clause had determined. tive indemnitees been test, press negligence is not entitled Therefore, this maintains because defending against this recover its costs underlying neg suit is on Lott’s own based claim. It maintains noncovered ligence, closely analogous to duty indemnify is renders unenforce context, insurance duty defend an able, and the fact that Lott was found not depends on duty to defend where the bearing duty negligent has no on its allegations plaintiff’s pleaded whether the indemnify. coverage scope of outside the are within or allegations are and if policy, if Continental further asserts that Lott’s under coverage, is no scope there correct, theory duty that the indemni- outside defend, regardless outcome duty fy case did arise until was covered that Williams’ claim Ins. Co. Argonaut of the suit. Southwest Lott was indemnity agreement. Because Maupin, negligent, we need not address found not duty to defend is a defense based the effect dependent on the outcome of the suit would have on express negligence doctrine asserted upon the nature of the claim litigation costs. right Lott’s to recover however, disagree we plaintiff; allegations duty to plaintiffs determine the Nevertheless, contends Instead, indemnify. litigation for Lott’s it is not liable the indem is determined from the terms of specifi are not expense these costs nity agreement. v. Amo Ideal Lease Serv. However, agreement. cally by the covered (Tex. co Prod. litiga otherwise. Texas law dictates contracts, 1983). construing indemnity indemnified costs for applicable guidelines are well estab upon either may claim be recovered is to primary concern of courts lished. implied by law or un give effect to the inten ascertain and to in- because otherwise der the expressed in the tions of the fully protected and not be demnitee would *5 Those intentions are de instrument. Id. against by covered harmless claims saved applying the same rules of termined Fisher, agreement. indemnity applied are to other con construction as requirement is no at 211. There Id.; Riggs, tracts. Fisher Constr. Co. expressly stipulate that agreement that the (Tex.Civ.App.—Hous indemnified; they are these costs are ton), 160 Tex. grounds, rev’d on other arising personal a expenses or costs from (1959). However, the in 325 S.W.2d 126 or incident to injury connected with indemnify tent to the indemnitee for the from Lott performance of the work which negligence must consequences of its own Patch v. Amoco is to be saved harmless. requirements also meet the (5th Cir.1988) F.2d Oil rule. Further, law). we (interpreting Texas express negligence doc Having found the “nothing that agree with the court Patch facts, inapplicable trine to our we reasoning holding ... in the principles general contract to ascertain indicates that bears on this issue or has whether Lott law.” holding good is not Texas Fisher its defense costs. conten reject Continental’s Id. at 573. We Lott’s because tion that it has para terms of Under the relevant covered specifically are not defense costs 10(a), graph agreed to indemni Continental agreement. claims, demands, losses, fy Lott expenses, arising injuries foregoing authority, we and costs from Based on of, with, costs, persons arising out connected defense incurred hold that Lott’s performance of the work for which incident to successful defense a claim provided, under the subcontract. Our record are recoverable was surrounding the facts Williams’ under not reveal from Continental Accordingly, we over- injury, agreement but Continental does not contend at issue. point action did not arise of error. that Williams’ cause of sole rule Continental’s connected with or inci out of or was not is affirmed. performance of the work under dent to the with Lott. ad Continental’s subcontract J., LAGARDE, dissents. asserts, dition, affirmatively without LAGARDE, Justice, dissenting. Continental, plain contradiction appeal con- This respectfully dissent. this contract. tiff’s claim arose under Therefore, inju cerns the construction we conclude Williams’ appellant Continental agreement between ry from or was connected with arose (Continental) appellee Company under the subcon Steel performance of work (Lott). contested Lott, The sole conclusion, Inc. we hold H.A. Based on this tract. agreement issue whether obligates sought reimbursement for “all expenses indemnify Continental to Lott for Lott’s and attorney’s fees Lott reasonably in- attorney fees in its successful de- in defending even if no curred] itself” fense a claim based on Lott’s judgment were (Emphasis sup- obtained. alleged negligence. plied.) In response mo- Continental’s judgment, tion for alleged “was it indemnity agree- would hold that the forced attorney’s to incur fees and costs ment is unenforceable as a matter of law accept Continental refused to satisfy because it “express does not Lott’s defense first negligence test”; consequently, it does not filed.” Lott attached to the con- affidavit would, obligation. create such an there- cerning attorney fees a August letter dated fore, reverse and render on the indemnity 8, 1984, tendering defense, Lott’s which claim. Continental, who otherwise par- ty, FACTUAL BACKGROUND refused. Lott obligation defend and the are Continental was a subcontractor for separate and distinct issues. Based on the general contractor, at a construction however, foregoing, I conclude Dallas, parties’ site Texas. The subcon- “duty to put defend” was into issue agreement tract pleadings Lott’s which reflect that Lott whereby agreed sought of attorney reimbursement fees Lott for certain claims from work incurred because of Continental’s failure to Gregory subcontract. When Where, here, defend. the basis of the injured Williams was at the construction claim is fees incurred site, Union Insurance Company Standard *6 defend, because of a to failure I cannot paid compensation. Williams workers’ As separate are issues and dis- subrogee, Williams’s the insurance compa- tinct. ny sued Lott and several subcontractors to

recoup payments its pursuant article agreed 8307, section 6a of the Texas Revised Civil issue would until be reserved after the trial Intervening plaintiff Statutes. as a in against his on Williams’s claims Lott. After behalf, alleged in petition trial, Williams his jury two-week found that Lott through various acts and was negligent. The trial court entered omissions, proximately Lott had judgment caused his that Williams and Union Stan- trial, injuries. against Prior to the claims dard all Insurance take and taxed all the other were defendants either against sev- costs The trial them. court also or ered dismissed. did Williams not sue in judgment rendered Lott’s favor on Continental; however, joined Conti- against claim Continental under as a party nental third on a claim of subcontract, indem- their awarding Lott its attor- nity. ney successfully fees and incurred in costs argues the lawsuit. Continental paragraph In II party peti- of its third that this im- award of fees was tion, Lott asserts: proper in because no plaintiff, In event the Union Stan- the subcontract covers this loss. (Union) Company dard Insurance makes any recovery against cause, Lott in this THE AGREEMENT against

Lott is entitled to Con- judg- tinental for the full amount of such Lott based its claim ment, together with reasonable attor- following provisions in the contract be- ney’s costs, fees and in- ... tween Lott and Continental. demnity provisions 10(a) [paragraph and 10.(a) Subcontractor here- [Continental] “Attachment the con- A”] by agrees and save harm- tract between Lott and Continental. less from Contractor and [Lott] Lott, therefore, demands, sought indemnity claims, losses, ex- damages, for its III, costs, liabilities, penses, injuries, arising per- injury employees causes action from of Subcontractor persons damage property arising or formance of said work. of, with,

out connected or incident hereunder, performance ex- work employ 20. Should Contractor an attor- cept in cases of sole on the ney any to enforce here- part Contractor, and Subcontrac- of, any protect or to its interest matter any tor will defend and all such actions contract, prose- or under this brought against pay Contractor and will any resulting cute or defend any judgment rendered in such suits and contract, surety or to recover will reimburse and Contractor given by bond Subcontractor under this expenditures for all or includ- surety, Subcontractor and his fees, ing court costs and counsel made or jointly severally, agree pay Con- Contractor reason of such costs, charges, tractor all reasonable ex- suits. penses attorney’s expended fees or ,1 incurred therein... “A” ATTACHMENT I. Subcontractor will ob- [Continental] DISCUSSION safety serve Contractor’s basic [Lott’s] A” that “Attachment policy applicable provisions and all provide of the subcontract will not a basis Occupational Safety and Health Act of contingent it is on a thereto, regulations 1970 and the Continental, agents, employ- breach Article 5182-1 of the Texas Revised Civil ees, materialmen, subcontractors, of its maintaining Statutes and shall assist obligation safety precau- to take certain working conditions which free of un- are tions set out that clause. Continental hazardous, sanitary, dangerous condi- urges that because there is no evidence of protecting tions and shall assist in jury finding such a and no breach safety health and laborer or me- issue, support will not employed performance chanic in the indemnity. award on this Contract. Subcontractor shall in- *7 demnify and save harmless the Contrac- argues Lott A” and that “Attachment tor liability and Owner from all and/or 8(a) paragraphs provide proper and 20 loss, limit, without incurred in or whole basis for under the subcontract part, directly indirectly, or as a result agreed, para- because Continental any obligation breach of this by Sub- 20, graph attorney to reimburse Lott for contractor, agents, employees, materi- spent by any “arising fees Lott in lawsuit almen, and subcontractors. “resulting under” or from” the contract 8(a) argues paragraphs and further appeal, re-urges provi- On Lott those two and, additionally, urges imposed sions as a further and “Attachment A” on Continen- tal, keep basis for its the follow- the construc- ing provisions: tion site safe. Lott asserts that because alleged petition insurance carrier

8.(a) comply Subcontractor shall with all failing that Lott was federal, to take laws, codes, municipal state and precautions safety for which Continental regulations and ordinances effective subcontract, responsible where the work under this contract is to “arising Lott was forced to defend a suit performed, pay all and to sales and or “resulting under” imposed from” the contract. use taxes and contributions Consequently, Lott that an award required by any any employment law for asserts insurance, pensions, age proper. argues Lott old retirement funds, respect “express negligence purposes, or similar doctrine” does not seeking the work under this contract and the here Lott re- paragraph County, 1. The last sentence of 20 reads "Sub- contract must be filed in Harris However, Texas." agrees contractor filed under the issue of venue was not raised. 520 damages agreement

imbursement based on its is unenforceable. but, rather, negligence seeking reim- Ethyl, the Supreme changed Court bursement for fees incurred in rules concerning the construction and en- “arising a suit under” or “result- indemnity provisions. forcement of The ing Relying from” the primarily contract. parties seeking held that to indemni- argues on federal authority, be- fy the indemnitee from the negative finding cause of jury’s negligence express its own must that intent negligence, no need there is to reach the specific terms the four within comers of 10(a) complies issue of whether Ethyl, contract. with doctrine. Intent to shift the burden indemni- negligence tee’s to an indemnitor must Conoco, Inc., Meloy

Lott relies on v. 817 specifically stated in the (5th Cir.1987); instrument. See F.2d 275 O’Neal v. Interna Masonry, Coast Inc. v. Co., (5th Owens-Illi- F.2d 199 Paper tional 715 Cir. Gulf nois, Inc., 239, (Tex.1987). 739 1983); S.W.2d 239 Co., v. Stephens Chevron Oil express negligence (5th Cir.1975). adopted 517 F.2d 1123 All three replaced similar, Ethyl strict, interpreting cases are less decisions Louisiana “clear unequivocal” law. rule set forth in Additionally, Lott relies on Leonard America, 134, Fireman’s v. Alcoa 767 F.2d Fund Insurance Co. v. Com- Co. of (5th Cir.1985) Co., (interpreting 136-37 mercial Texas Standard Insurance 490 law), 818, (Tex.1972). Broad, S.W.2d general where the court determined that the language covering unequivocal appli arguably “any “clear and rule” had no loss” is plaintiff successfully cation had where de insufficient to shift the burden of an in- negligence only sought fended claims and negligence demnitee’s to an indemnitor. recovery expended in its Singleton costs successful See v. Central Petrole- Crown Citing defense. Sundt Construction Corp., M.M. um Equipment Co. Contractors majority conclude that the court in S.W.2d Paso — El policy disapprov did not enunciate writ) Cruz, Drilling and Delta Co. v. ing ambiguous indemnity provisions, (Tex.App. Corpus only but rather addressed for the n.r.e.), Christi writ ref 'd sole, indemnitee’s whether that because it incurred a loss not has due joint, or concurrent. 725 S.W.2d at to its own and within the terms therefore, majority, 708. The decline to of its it is entitled to in extend the rule to reimbursement of that loss. demnity provisions covering losses which rehearing, urged by On we were an ami negli do not indemnitee’s result from the Payne, cus curiae to also consider Sira & cases, gence. Relying pre-Ethyl *8 Riddle, 484 S.W.2d Inc. v. Wallace & particular Copeland emphasis with Well (Tex.1972) and Barnes v. Lone Star Steel Service, Co., 528 Inc. v. Oil Shell Co., (5th Cir.1981). 642 F.2d 993 Con 317, 1975, (Tex.Civ.App. Tyler, writ ceding that were decided under those cases dism’d), majority conclude that because rule,” unequivocal the “clear and the ami- finding jury’s negative as to Lott’s strongly urges cus nevertheless this Court negligence, validity “the to Ethyl Corp. view Daniel Construc (Em play.” agreement never came into (Tex.1987), 725 S.W.2d as phasis original.) Accordingly, majority revolutionary, evolutionary, an not a devel negligence doctrine hold that the Continental, hand, opment. on the other application has the determination of to that is controlled this case an indemnitor’s when an express negligence pronounced in test Eth negligent. indemnitee is The found satisfy yl and that the failure that test majority that the enforce further conclude precludes indemnity award. an express negligence ability issue under the agree doctrine is not unless the indemni- Ethyl with Continental that reached law, seeking a matter of tee is for the conse control and reimbursement express negligence test is conclude that the quences negligence. of its I cannot requires it the indem- agree. revolutionary that establish, the four corners nitee to within in Ethyl The court stated: unambiguity of the The intent of the is to indem- scriveners indemnity provision, thereby placing the nify negligence, the indemnitee for its establishing burden of yet just ambiguous enough to conceal part prima facie indemnitee as a of its intent from indemnitor. The case; whereas, “clear and un- plethora result has been a law suits the in- equivocal” was on test burden ambiguous construe those contracts. the unen- prove, defense, demnitor to as a cut policy We hold the better is to ambiguous of an forceability through ambiguity provi- of those establishing the in- provision by factually adopt express negligence sions and doctrine_ negligence. Eng’g Delta demnitee’s See of ex- Under the doctrine Corp., 772. The at 668 S.W.2d at press par- the intent of the exculpate the expressly here issue fails specifically ties stated must be within negligence. The indemnitee for its own four comers of the contract. supreme provi- has held that such a court Ethyl, 725 S.W.2d at 707-08. sion is unenforceable as a matter of law. supreme just recently The court has ob- at 690. Singleton, 729 S.W.2d purpose adop- served that behind “[t]he then, Turning, provisions to the at issue tion of the rule is to appeal, confronted with the on this we are require scriveners to it clear make type language that the su same broad exculpate the intent of the an is to preme Ethyl refused to enforce court negli- indemnitee for the indemnitee’s own simply and in Singleton, gence.” Atlantic v. Petrole- Co. Richfield speak specifically do not Personnel, Inc., um of the indemnitee’s (Tex.1989). In discussing holding provisions cannot be en These Singleton v. Crown Central Petroleum if forced Corp., 729 S.W.2d at of unenforceabili- applies. Noting this court is not ty indemnity provision containing federal court deci bound follow lower “except” clause similar to the one at issue State, sions, see Barstow v. here, and where the indemnitee had been writ 501 n. concurrently negligent, found to be — Austin denied), con I conclude that is the court observed: trolling authority on issue in Texas and Singleton contract in did express negli further conclude that specifically Mundy state that [con- doctrine does here. obligated tractor] Crown for Crown’s own [owner] expressed, For the reasons earlier I dis Rather, gence. specifically stated agree majority Copeland with the indemnified, what was not to “claims applicable. applicable, if I do not Even resulting from the sole Copeland closely analogous therefore, agreement, owner.” The Cope on its facts to the case at bar. implicit indemnity agreement requir- land, Copeland Shell and both sued were *9 obligation ing Mundy to deduce his full by injured party. the Shell tendered de negligence exception. the sole provi Copeland fense of suit to Cope Richfield, Atlantic sions of the rationale, land, although supreme party, Based on the court’s as a refused to defend. expressed underlying adoption expense in ulti Ethyl, its Shell defended at its own and rule, i.e., express negligence mately of the to re- settled the suit. then sued Shell amount, plethora brought Copeland duce the the attor of lawsuits to settlement ambiguous indemnity provisions, ney construe fees and other costs in the Shell, spe Finding and the Court’s clarification of that hold- suit. the trial court ing, expressed cifically findings as in fact and Richfield, Atlantic found its of

522 negligence served, of the by negatively conclusions law that of a stating is not what to Copeland employee proximate the sole indemnified, opposed be as affirmatively to death, cause of Johnson’s and further stating indemnified, provi- what is to the be agent, servant, employee, found that implicit sion is an indemnity agreement re- of Shell committed act of quiring to deduce full its obli- which contributed to cause the death of gation negligence exception. from the sole Further, Johnson. the trial court found See Atlantic 768 Richfield, S.W.2d at 725. personnel supervisory Cope that “the of Consequently, I conclude that if the obli- appreciated danger” land knew and the cre gation of indemnitor is to be found the the Copeland employee’s negli ated proof an exception, of then the factual gence, prior and that several occa “[o]n of specifically intent the is not stat- representatives sions Shell’s had warned agree- ed the corners within four of the Copeland’s supervisors, ..., danger of the ment; thus, under and Atlantic who, turn, [Copeland’s employ advised and, Richfield, ambiguous the is Here, danger.” neither Lott nor ee] law, as a matter of Wheth- unenforceable. negligent. In Continental was found holding Ethyl er the is to be viewed as deed, Continental was not even sued evolutionary revolutionary, I conclude Williams. Even in Patch v. Amoco Oil that it has shifted burden to indem- (5th Cir.1988)(inter F.2d show, affirmatively, nitee that the in- law), preting by majori Texas relied on thus, demnity provision unambiguous, is ty, if the court seems intimate in- enforceable; longer it is no of burden is found demnitee to be indemnitor, by proof of an ex- factual negligent, is then indemnitor indemnitee is ception, to it is show that unenforceable. entitled indemnification. This is not the words, Ethyl, In other the enforce- Further, Copeland case here. was cited ability ques- is a Barnes, followed the court law, question not a of fact. however, 995; Barnes, rejecting F.2d at the lan- Continental further stated, Supreme in Ethyl Texas 10(a) guage precludes adoption “[0]ur vague because it is too award reasoning necessarily rejects test and, generalized language in its there- (em S.W.2d Barnes.” at 707 fore, express negligence doc- violates the supplied.) phasis is so conclude that this hand, argues that, On the trine. other is test indemnity agreement if is not even construction, rule of contract not an affirm enough upon specific to confer it ative defense. See Monsanto Co. v. Owe indemnified for the ns-Corning Corp., Fiberglass here that is irrelevant [1st Dist.] — Houston seeking recovery in because it is not such a writ). Further, 1988, no an Continental’s Indeed, emphasizes that in this case. denying is swer express record us there before provi put validity sue negligent. jury finding that Lott was not issue, thereby requiring sion into Lott to provi establish Indemnity is “derivative action” conclude, therefore, sion. See id. independent City cause of not an action. Copeland inapplicable. Watson, 23, 33 Houston v. of (Tex.Civ.App. ref’d writ Further, if rule is — Houston conclude n.r.e.). Apparently majority defense, I con- to be construed as a then finding negative that it derives from adoption to re- clude that stated, reasons earlier For plethora brought duce the of lawsuits derive, if must so then the ambiguous indemnity provisions. construe *10 law, cannot, be provision a matter of Implicit holding in the in as Ethyl, as clarified the ex I that under in is that enforceable. conclude Richfield, Atlantic to be enforce- test, of able, press negligence the provision unambiguous. enforceability the must “derive” indemnity provision As the court in ob- must Atlantic Richfield expressed ty provision dependent. intent of as is not so To the agreement. contrary, enforceability agree- within the four comers of the If ment is to be found the four expressly covers within comers of the contract. pleaded against the cause of action Arguing indemnitee, apply, that Adams does not provision then the is enforce able; correctly points proce- not, out that Adams is if it it is unenforceable as a durally distinguishable this court enforceable, because right matter of law. If summary judgment rendered for the in- indemnity then derives from either a loss liability before the demnitor of the indemni- liability suffered the indemnitee. Nevertheless, tee was determined. I con- Here, however, that issue is not reached. significant clude that Adams is in argues, soundly I and think that instance this court looked na- so, context, in if by analogy, asserted, ture the claims determined of coverage for policy insurance excludes def- negli- claims solely were based on insured def- amation and the is sued for gence, applied rule defense, amation is successful recovery and denied to the indemnitee. coverage cannot then claim for its costs of holding Our in Adams was not conditioned reasoning the suit. find this finding negligence a as a matter of persuasive. reality, In a contract of indem- law, finding nor was it conditioned on a nity very is similar to a contract of insur- simply a lack of looked to Eng’g Corp., ance. Delta 668 S.W.2d at the nature the claims rather asserted 773. than ultimate determination as to Thus, view, my presents this case gence reaching our decision as to the following express negli issue: when the enforceability provision. deny doctrine works to indemnifica Similarly, Masonry, Coast Gulf tion for the of the indemni- Supreme S.W.2d at the Texas tee’s own does it also work to applied doctrine and bar indemnification for the in recovery to denied an indemnitee based curred an indemnitee in the successful the claims asserted before the indemnitee’s negligence defense of a action based light liability had been determined. In negligence? Logic pre on its own and the supreme court’s treatment of Gulf vailing binding authorities dictate that the our focus Masonry, Coast conclude that question answer to the yes. above is properly upon is claims asserted. Spring Adams v. Valley Construction jury fact that a found a lack of — Dallas part change of Lott does not n.r.e.), applied writ ref 'd we the ex enforceability indemnity agreement. press negligence theory, Under Lott’s courts would re- provision, holding that the quired liability to await a final determina- sufficiently specific in- to entitle the duty tion in order to determine the to de- demnitee to indemnification for the conse Consequently, summary judgment fend. quence negligence. Interesting of his own granted as in Adams and Ma- Coast Gulf ly, argues that in the con inappropriate. sonry would be text, context, right unlike the insurance Further, interpre- I conclude that such an does not accrue until after a determination agreement is tation of this made; however, here Lott strengthened by “duty the inclusion of the right that its accrued case, provision. to defend” In this upon negative negli a determination as to context, only plaintiff’s the insurance gence. allegations pleaded are considered to deter- While duty Argonaut mine to defend. See does not accrue until after a determination Maupin, Southwest Ins. Co. v. made,

of either loss or City see Logically, Houston, depend upon S.W.2d at the determi- cannot the truth or defend allegations nation of the of the indemni- ultimate success of the assert- *11 ed; otherwise, circumstances, pri- breach would occur not for purposes duty or to the time the comes into exist- varying adding to the contract but in Moreover, ence. interpreta- under Lott’s order to find out the intention with which agreement, Continental, tion of this the words are used. Joe Adams & Son v. party duty with defend would McCann Constr. 475 S.W.2d have having a financial incentive in (Tex.1971). and, found consequently, a finan- applying criteria, In the above I note that vigorously cial disincentive to defend. I provisions in addition to the previously find those results untenable. concerning mentioned indemnity, the sub- reasoning Lott asks us to follow contract contains still another the federal court in Stephens, 517 F.2d at provision in paragraph whereby eleven reject the financial no- incentive agrees to indemnify Lott for tion parties based on the rationale that the expense all loss and incurred Lott re- adequately can deal with these issues sulting from claims or infringe- suits for initially bargaining in- over the terms of patents patent ment of or violations of demnity. I why see no reason this ratio- rights by In paragraph Continental. seven- ways. nale does not work If both indeed teen, language there is that Continental parties intent of the is to will, expense, at its cost including in only defense of a suit fees, counsel any defend suit filed if and when a claimant is exonerated of labor, it for a claim or lien for services alleged negligence, I why see no reason purchased materials used or use parties just easily adequate- cannot deal work covered the contract. ly initially bargaining with this issue when conclude, therefore, over the terms of the contract. I reading light contract as a whole of the above urges appeal for the first time on criteria, language in para- paragraph pro 20 of the subcontract graph parties 20 was intended vides a basis for the I award. apply to a contract cause of action and not can find the record before us to action, to a cause presented indicate that this issue was ever Consequently, paragraph would so hold. to the trial court. The record us before provide 20 can no basis for the trial court’s findings contains no of fact and conclusions award of fees for defense of a It is nonjury law. well settled that in a cause of action based findings trial where of fact and conclusions alleged negligence of Lott. properly requested of law are not and none filed, are of the trial court upheld

must affirmed if it can be SUMMARY legal theory support that finds in the evi then, summary, based above Bliss, dence. Lassiter v. 559 S.W.2d discussion, express neg- I conclude that the (Tex.1977), Seaman, citing Seaman v. and, ligence applies satisfy test failure to (Tex.1968). Therefore, that test renders the I would consider 20 as a basis as a matter of As to unenforceable law. Interpretation for the award. A,” paragraph 10(a) and “Attachment is a matter of law. interpretation in- conclude that an general relating rules to the construc demnity provisions necessarily re- which applicable tion of contracts are to indemni potential sults breach before a ty contracts. seek the We must intention exists, interest, as well as a conflict of language from the used in post- untenable. further conclude that Enterprises contract. R P & LaG uarta, Kirk, Inc., Ethyl, when the issue of is con- Gavrel & tested, 518-19 All of the indemnitee has the burden lan guage satisfying test used is to be considered. Considera given may subject adopted by thereby to the matter of the court surrounding establishing the contract facts and of the in- *12 demnity provision. express neg- When the

ligence deny doctrine works to indemnifica- indemni-

tee’s own it likewise works expenses incurred

deny indemnification for of a an indemnitee the defense on the indemnitee’s own action based

alleged negligence. Specifically, I would

hold that the of the indemni-

ty question provision is a of law determined specific intent of

expressed within the four corners of the Further,

agreement. I would hold that in

interpreting indemnity agreement con-

taining “duty provision, to defend” looking to defend is determined asserted,

the nature the claims negligence. the ultimate determination of

Further, conclude that

applies only to an action based in contract to this action based

solely alleged negligence; on Lott’s Consequently,

would so hold. I would re- judgment

verse the of the trial court inso- Lott;

far as it awards in favor of judgment would render take on its claim for

incurred in successfully defending a suit allegations

based of Lott’s own respects, In all other I would

affirm the of the trial court.

Larry DENNIS, Appellant, Texas, Appellee.

The STATE of

No. 09 88 153 CR. Texas, Appeals

Court of

Beaumont.

May 1989.