                                                                                      FILED
                                                                          United States Court of Appeals
                                               PUBLISH                            Tenth Circuit

                                                                               February 3, 2015
                          UNITED STATES COURT OF APPEALS
                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court
                                 FOR THE TENTH CIRCUIT
                             _________________________________


MARTIN K. EBY CONSTRUCTION
COMPANY, INC.,

       Plaintiff - Appellee,

v.                                                                 No. 13-3076
                                                         (D.C. No. 6:08-CV-01250-MLB)
ONEBEACON INSURANCE
COMPANY, as successor to Commercial
Union Insurance Company,

       Defendant,

and

KELLOGG BROWN & ROOT, LLC,

       Defendant - Appellant.

--------------------------------------------------

CONTINENTAL CASUALTY
COMPANY; NATIONAL FIRE
INSURANCE COMPANY OF
HARTFORD, as successor by merger with
Transcontinental Insurance Company;
COLUMBIA CASUALTY COMPANY;
VALLEY FORGE INSURANCE
COMPANY,

       Plaintiffs,

v.
ONEBEACON INSURANCE
COMPANY, as successor to Commercial
Union Insurance Company,

      Defendant,

and

TRAVELERS CASUALTY AND
SURETY COMPANY, as successor to
Aetna Casualty and Surety Company;
UNITED STATES FIDELITY AND
GUARANTY COMPANY; ST. PAUL
FIRE AND MARINE INS. CO.; ATHENA
ASSURANCE COMPANY; MARTIN K.
EBY CONSTRUCTION COMPANY,
INC.,

      Defendants - Appellees,

and

KELLOGG BROWN & ROOT, LLC,

      Defendant - Appellant.
                      _________________________________

                                     ORDER
                        _________________________________

Before BACHARACH, McKAY, and McHUGH, Circuit Judges.
                 _________________________________

       This matter is before the court on appellant Kellogg Brown & Root’s Petition for

Panel Rehearing. Consistent with our order dated December 31, 2014, we also have

responses from the appellees. Upon consideration, we grant panel rehearing in part with

respect to proposition IV in the rehearing request. We otherwise deny the petition in full.




                                                2
An amended opinion is attached to this order. The clerk is directed to substitute this

opinion for the one that issued originally on December 9, 2014.


                                              Entered for the Court



                                              ELISABETH A. SHUMAKER, Clerk




                                                 3
                                                             FILED
                                                 United States Court of Appeals
                                 PUBLISH                 Tenth Circuit

              UNITED STATES COURT OF APPEALS          February 3, 2015

                                                    Elisabeth A. Shumaker
                           TENTH CIRCUIT                Clerk of Court


MARTIN K. EBY
CONSTRUCTION COMPANY,
INC.,

           Plaintiff-Appellee,
      v.                                   No. 13-3076

ONEBEACON INSURANCE
COMPANY, as Successor to
Commercial Union Insurance
Company,
and
KELLOGG BROWN & ROOT,
LLC.,
           Defendant-Appellant.



CONTINENTAL CASUALTY
COMPANY; NATIONAL FIRE
INSURANCE COMPANY OF
HARTFORD, as Successor by
Merger with Transcontinental
Insurance Company; COLUMBIA
CASUALTY COMPANY; VALLEY
FORGE INSURANCE COMPANY,
            Plaintiffs,
v.
ONEBEACON INSURANCE
COMPANY, as Successor to
Commercial Union Insurance
Company,


             Defendant,
and

TRAVELERS CASUALTY AND
SURETY COMPANY, as Successor
to Aetna Casualty and Surety
Company; UNITED STATES
FIDELITY AND GUARANTY
COMPANY; ST. PAUL FIRE AND
MARINE INS. CO.; ATHENA
ASSURANCE COMPANY;
MARTIN K. EBY
CONSTRUCTION COMPANY,
INC.,

           Defendants-Appellees,

and

KELLOGG BROWN & ROOT,
LLC,


           Defendant-Appellant.


             Appeal from the United States District Court
                      For the District of Kansas
                   (D.C. No. 6:08-CV-01250-MLB
                      And 2:08-CV-02392-MLB)


Lauren B. Harris, Porter Hedges LLP, Houston, Texas (David M. Rapp and
Eric Barth, Hinkle Law Firm, LLC, Wichita, Kansas, and Jonna N.
Summers, Porter Hedges, LLC, with her on the briefs) for Plaintiff-
Appellant Kellogg Brown & Root, LLC.

                                   2
James Oliver, Foulston Siefkin LLP, Overland Park, Kansas (Randall K.
Rathburn, Depew Gillen Rathburn & McInteer LC, and Jeffery A. Jordan,
Foulston Siefkin LLP, Overland Park, Kansas, with him on the brief) for
Defendant-Appellee Martin K. Eby Construction Co., Inc.

Donna J. Vobornik, Dentons US LLP, Chicago, Illinois (Geoffrey J. Repo
and William T. Barker, Dentons US LLP, Chicago, Illinois, with her on the
brief) for Defendants-Appellees Travelers, et al.


Before BACHARACH, McKAY, and McHUGH, Circuit Judges.


BACHARACH, Circuit Judge.



     This appeal involves indemnity and insurance.

     The indemnity issues arise out of a promise by Martin K. Eby

Construction Company’s predecessor to build a water pipeline. To build

the water pipeline, Eby engaged another company (the predecessor to

Kellogg Brown & Root, LLC), promising indemnity for claims resulting

from Eby’s work.

     While building the water pipeline, Eby accidentally hit a methanol

pipeline, causing a leak. At the time, no one knew about the leak. It was

discovered over two decades later, and the owner of the methanol pipeline

had to pay for the cleanup.

     The owner of the methanol pipeline sought to recover the expenses

from Kellogg and Eby. Kellogg and Eby prevailed, but Kellogg incurred
                                     3
over $2 million in attorneys’ fees and costs. Kellogg invoked Eby’s

indemnity promise, suing Eby and its liability insurer, Travelers Casualty

and Surety Co. The district court granted summary judgment to Eby and

Travelers, leading Kellogg to appeal. Some of our issues involve Eby;

others involve Travelers.

     To resolve the Kellogg-Eby portion of the appeal, we must address

the enforceability of Eby’s promise of indemnity. This promise is broad

enough to cover the pipeline owner’s claims against Kellogg for its

inaction after Eby caused the leak. But we can enforce the indemnity

promise only if it was expressly stated and conspicuous. This indemnity

clause was not conspicuous; thus, it is unenforceable.

     The Kellogg-Travelers appeal turns on Kellogg’s argument that

Travelers’ insurance policy covered liabilities assumed by its insured

(Eby).




                                     4
But, because the indemnity clause is unenforceable, it is as if Eby never

agreed to assume Kellogg’s liabilities. In the absence of Eby’s assumption

of Kellogg’s liabilities, Travelers did not insure Kellogg.




                                      5
      Accordingly, Kellogg is not entitled to indemnity from Eby or

insurance coverage from Travelers, and Eby and Travelers were entitled to

summary judgment. We affirm.

I.    Standard of Review

      We engage in de novo review over the summary judgment rulings.

Holmes v. Colo. Coal. for Homeless Long Term Disability Plan, 762 F.3d

1195, 1199 (10th Cir. 2014). This review requires us to consider the

evidence in the light most favorable to Kellogg. See Lenox MacLaren

Surgical Corp. v. Medtronic, Inc., 762 F.3d 1114, 1118 (10th Cir. 2014).

Viewing the evidence in this light, we decide whether a genuine issue of

material fact exists on coverage for indemnity or insurance. See SEC v.

Thompson, 732 F.3d 1151, 1156-57 (10th Cir. 2013). We conclude that no

such issue exists, and we affirm the award of summary judgment to Eby

and Travelers.

II.   Eby’s Indemnity Obligation to Kellogg: The Fair Notice Rule

      Eby acknowledges that the indemnity clause covers the claims that

had been asserted against Kellogg, but argues that the coverage is

unenforceable. We agree.




                                     6
     A.    The Applicability of the Fair Notice Rule to Eby’s Promise
           of Indemnity

     To determine enforceability, we must understand the scope of Eby’s

promise. Eby promised to indemnify Kellogg for all claims, including

attorneys’ fees and expenses, “directly or indirectly arising from or caused

by or in connection with the performance or failure to perform any work”

by Eby (or its predecessor). Appellant’s App. at 504. This promise covers

the pipeline owner’s claims against Kellogg, but indemnity coverage is

unenforceable under the fair notice rule.

     1.    Coverage for Kellogg’s Malfeasance

     Kellogg argues that Eby’s promise covers only claims involving

Eby’s malfeasance, not Kellogg’s. But this is not what the clause says: It

says that Eby will indemnify Kellogg for all claims arising “directly or

indirectly” from Eby’s work. Thus, the indemnity clause covers claims

involving Kellogg’s failure to comply with a duty created by something

Eby had done.

     This clause fits our facts. Eby hit the methanol pipeline and caused

the leak, and the pipeline owner claimed that Kellogg should have taken

corrective action. Thus, the claims involved Kellogg’s wrongdoing, not

Eby’s. But Kellogg allegedly incurred a duty only because Eby had caused

a leak. Thus, the indemnity clause is broad enough to cover the pipeline
                                      7
owner’s claims against Kellogg for Kellogg’s fault (failure to take

corrective action). The resulting issue is the enforceability of that

promise. The parties agree that enforceability is governed by Texas law,

which restricts indemnity clauses through the “fair notice rule.”

        2.   Kellogg’s Arguments

        Kellogg makes two challenges to the applicability of the fair notice

rule:

        ●    The fair notice rule does not apply because Kellogg is seeking
             indemnity for Eby’s conduct, not Kellogg’s.

        ●    The jury attributed fault to Eby, not Kellogg.

We reject both arguments.

        Kellogg characterizes the pipeline owner’s claims as stemming from

the damage to the pipeline and points out that the jury attributed that

damage to Eby. Because all of the claims can be traced to Eby’s conduct,

Kellogg argues that it is seeking indemnity for Eby’s actions, not

Kellogg’s. As discussed above, the pipeline owner sued Kellogg for its

inaction after Eby had caused the leak. Thus, our indemnity issues are

unaffected by the jury’s finding that Eby had caused the leak.

        3.   Absence of a Reference to Kellogg’s Fault

        Though the indemnity clause applies, it does so implicitly rather than

explicitly because there is no mention of coverage for claims involving the
                                       8
indemnitee’s fault. Thus, we must ask: Does the fair notice rule apply

when the indemnity clause covers the indemnitee’s fault implicitly, but not

explicitly? We conclude the fair notice rule applies in these

circumstances.

         The indemnity clause covers all claims arising directly or indirectly

from Eby’s acts. This language is broad enough to cover claims involving

Kellogg’s failure to take action once Eby damaged the pipeline. Because

the indemnity clause covers claims against Kellogg for its own fault, the

fair notice rule applies under Texas law. The rule applies even though the

indemnity clause doesn’t explicitly mention claims involving Kellogg’s

fault.

         In applying the fair notice rule in these circumstances, we are guided

by two of the Texas Supreme Court’s decisions applying a related rule (the

“express negligence rule”): Ethyl Corp. v. Daniel Construction Co., 725

S.W.2d 705 (Tex. 1987), and Fisk Electric Co. v. Constructors &

Associates, Inc., 888 S.W.2d 813 (Tex. 1994).

         In Ethyl, the court held that the express negligence rule applied when

the claims involved the indemnitee’s fault. Ethyl Corp., 725 S.W.2d at

708. The promise in Ethyl broadly covered damages incurred because of




                                         9
the indemnitor’s conduct. Id. at 707. 1 But the claims involved the

indemnitee’s fault. Id. Under the express negligence rule, a party seeking

indemnity from the consequences of its own negligence must specifically

express that intent in the four corners of the contract. Id. This restriction

applied even though the contractual indemnification clause had not

referred to coverage for the indemnitee’s fault. Id. Thus, the Texas

Supreme Court concluded that the express negligence rule applies when an

indemnity clause implicitly covers claims involving the indemnitee’s fault.

Id.

      The indemnity language in Fisk was similar. There the clause stated

that Fisk “‘shall indemnify . . . [Constructors] . . . from and against all

claims, damages, losses, and expenses, including but not limited to

attorney’s fees . . .’ arising out of or resulting from the performance of

Fisk’s work.” Fisk Elec. Co. v. Constructors & Assocs., Inc., 888 S.W.2d

813, 814 (Tex. 1994). Though the indemnity clause did not mention the

1
      The Ethyl agreement stated:

      Contractor shall indemnify and hold Owner harmless against
      any loss or damage to persons or property as a result of
      operations growing out of the performance of this contract and
      caused by the negligence or carelessness of Contractor,
      Contractor’s employees, Subcontractors, and agents or
      licensees.

Ethyl Corp., 725 S.W.2d at 707.
                                      10
indemnitee’s (Constructors’) fault, the Texas Supreme Court applied the

express negligence rule because the claims involved the indemnitee’s fault.

Id. at 815.

      Our case resembles Ethyl and Fisk. 2 Eby’s promise of indemnity

does not mention Kellogg’s fault. Instead, the clause promises to

indemnify Kellogg for money spent defending claims caused by Eby’s

conduct. This language is broad enough to reach the pipeline owner’s

claims that

      ●       resulted indirectly from Eby’s conduct

      ●       even though the coverage is for claims involving Kellogg’s own
              actions.

      Under Ethyl and Fisk, the fair notice rule can cover promises of

indemnity bearing no mention of claims involving the indemnitee’s fault.

2
      Kellogg relies on English v. BGP International, Inc., 174 S.W.3d 366
(Tex. App. 2005). Kellogg’s Opening Br. at 22. There the court held that
the fair notice rule did not apply, distinguishing Fisk. English, 174
S.W.3d at 375. The court explained that in Fisk, the express negligence
rule applied because the only claim against the indemnitee was based on its
negligence. Id. In English, however, the only claims against the
indemnitee were based on the indemnitor’s negligence, not the
indemnitee’s. Id.

      As discussed in the text, the distinction in Fisk applies equally here.
Like the indemnity clause in Fisk, our clause serves to indemnify the
indemnitee (Kellogg) for any claims resulting from the indemnitor’s
(Eby’s) acts. But, like the claimant in Fisk, our indemnitee (Kellogg) is
being sued only for its own misconduct, not the indemnitor’s (Eby’s).
Thus, Kellogg’s reliance on English is misplaced.
                                      11
Thus, we must apply the fair notice rule even though the indemnity clause

does not refer to claims involving the indemnitee’s (Kellogg’s) fault.

     B.    The Requirements of the Fair Notice Rule

     We apply the fair notice rule to decide if the indemnity clause can be

enforced. Under this rule, promises to indemnify a party for its own fault

must be expressly stated and conspicuous. See Dresser Indus., Inc. v. Page

Petroleum, Inc., 853 S.W.2d 505, 508 (Tex. 1993).

     C.    Applicability of the Fair Notice Rule to the Pipeline
           Owner’s Claims

     Kellogg has sought indemnity for its fees and expenses to defend five

claims:

     ●     fraud,

     ●     nuisance,

     ●     restitution,

     ●     violation of a federal environmental statute, and

     ●     violation of a state environmental statute.

The fair notice rule covers application of the indemnity clause for each

claim.




                                     12
      1.    Fraud

      The parties debate the application of the fair notice rule to

intentional torts, like fraud. We conclude that the fair notice rule applies

to contractual indemnification for fraud.

      The Texas Court of Appeals has held that the fair notice rule restricts

clauses indemnifying a party for its intentional torts. Hamblin v. Lamont,

433 S.W.3d 51, 57 (Tex. App. 2013). Though this holding does not bind

us, it does provide guidance. RSR Corp. v. Int’l Ins. Co., 612 F.3d 851,

857-58 (5th Cir. 2010). The Texas court’s reasoning makes sense: If

Texas public policy restricts indemnity clauses covering a party’s

negligence, there would be even greater reason to restrict indemnity for a

party’s intentional wrongdoing.

      Kellogg denies the applicability of the fair notice rule to claims

involving intentional torts, relying on DDD Energy, Inc. v. Veritas DGC

Land, Inc., 60 S.W.3d 880 (Tex. App. 2001), and English v. BGP

International, Inc., 174 S.W.3d 366 (Tex. App. 2005). Kellogg’s Opening

Br. at 33 n.9; Kellogg’s Reply Br. at 9. In these cases, however, the fair

notice rule didn’t apply because the contracts indemnified the indemnitees

for the indemnitors’ intentional torts, not the indemnitees’. DDD Energy,

Inc., 60 S.W.3d at 882; English, 174 S.W.3d at 369. As discussed above,

                                      13
our indemnity clause covered claims involving the indemnitee’s

(Kellogg’s) torts. Thus, DDD Energy and Veritas do not affect our issue.

      In these circumstances, we take our guidance from the Texas Court of

Appeals and conclude that the fair notice rule applies to the claim against

Kellogg for fraud.

      2.    Nuisance

      Kellogg was sued not only for fraud, but also for nuisance. That

claim required proof of

      ●     negligent or intentional invasion of interests or

      ●     abnormal conduct out of place in the surroundings.

City of Tyler v. Likes, 962 S.W.2d 489, 503 (Tex. 1997). Regardless of the

claimant’s method of proof, the fair notice rule would apply.

      Under Texas law, the fair notice rule applies equally to claims

involving negligence, 3 intentional conduct, 4 and abnormal activity (strict

liability). 5 Therefore, the rule would apply to all variants of a nuisance


3
     See Leonard v. Aluminum Co. of Am., 767 F.2d 134, 137 (5th Cir.
1985) (applying Texas law).
4
      See part II(C)(1), above.
5
      See Hanson Aggregates W., Inc. v. Ford, 338 S.W.3d 39, 46 (Tex.
App. 2011) (describing nuisance, based on activity out of place in the
surroundings, as “essentially a form of strict-liability nuisance”); see also
Hous. Lighting & Power Co. v. Atchison, Topeka, & Santa Fe Ry. Co., 890
                                     14
claim. In these circumstances, we conclude that the fair notice rule applies

to the pipeline owner’s claim against Kellogg for nuisance.

      3.    Federal and State Environmental Statutes

      The owner of the methanol pipeline also sued Kellogg for violation

of

      ●     the Comprehensive Environmental Response, Compensation and
            Liability Act of 1980, 94 Stat. 2767, as amended, 42 U.S.C. §§
            9601 et seq. (“C.E.R.C.L.A.”) and

      ●     the Texas Solid Waste Disposal Act, Tex. Health & Safety
            Code Ann. §§ 361.001-.992 (“S.W.D.A.”).

These claims also fall under Texas’s fair notice rule.

      C.E.R.C.L.A. and the S.W.D.A. apply to owners, operators, and

arrangers. 42 U.S.C. § 9607(a)(1), (a)(3); Tex. Health & Safety Code

§ 361.271(a)(1), (a)(3). For owners and operators, the statutes create strict

liability. See Celanese Corp. v. Martin K. Eby Const. Co., 620 F.3d 529,

532 (5th Cir. 2010). But the pipeline owner didn’t suggest that Kellogg

was an owner or operator of the pipeline; the pipeline owner characterized

Kellogg as an “arranger.” Kellogg could qualify as an “arranger” only if it

had taken “intentional steps to dispose of a hazardous substance.”




S.W.2d 455, 459 (Tex. 1994) (“[W]e hold that parties to an indemnity
agreement must expressly state their intent to cover strict liability claims
in specific terms.”).
                                     15
Burlington N. & Santa Fe Ry. Co. v. United States, 556 U.S. 599, 611

(2009).

      Based on this definition of “arranger,” the parties disagree over the

characterization of these claims: Kellogg says they involve intentional

torts; Eby says they involve strict liability. But we have already concluded

that Texas’s fair notice rule applies to both types of claims. Thus, we need

not decide whether the pipeline owner’s claim involves strict liability or an

intentional tort. Either way, the fair notice rule would apply.

      4.    Restitution

      The owner of the methanol pipeline also sued Kellogg for restitution.

Restitution is a remedy rather than a theory of liability. See McCullough v.

Scarborough, Medlin & Assocs., Inc., 435 S.W.3d 871, 891 (Tex. App.

2014) (“[U]njust enrichment is not an independent claim; rather it is a

theory of recovery.”). But, in its reply brief, Kellogg characterizes the

restitution claim as a quasi-contract theory, suggesting that it should be

treated like a conventional contract claim. Kellogg’s Reply Br. at 10.

According to Kellogg, this characterization would prevent application of

the fair notice rule. Id. We reject this argument.

      Restitution does not provide an independent theory of liability; thus,

Texas courts have not had any reason to confront applicability of the fair

                                     16
notice rule to restitution claims. Restitution would simply describe the

remedy being proposed (disgorgement of the benefits retained by Kellogg)

for tortious conduct.

      As discussed above, the fair notice rule applies to claims involving

the indemnitee’s negligence, intentional torts, strict liability, nuisance, and

violation of C.E.R.C.L.A. and the S.W.D.A. Because the fair notice rule

applies to these theories of liability, the rule applies equally to the

remedies (like restitution).

      D.    Failure to Satisfy the Fair Notice Rule’s Requirement of
            Conspicuousness

      In these circumstances, we must apply the fair notice rule to

Kellogg’s indemnity claim. Applying the rule, we conclude the indemnity

clause is unenforceable because it is not conspicuous. 6

      1.    The Fair Notice Rule’s Requirement of Conspicuousness

      As discussed above, indemnity clauses are enforceable only if they

expressly and conspicuously state that they cover claims based on the

indemnitee’s fault. See part II(B), above. Because we conclude that Eby’s

promise was not conspicuous, it is unenforceable.

6
      The district court held that the indemnity clause did not satisfy the
express negligence requirement, but did not address the conspicuousness
requirement. Nonetheless, we can affirm on this ground if it is supported
by the record. Citizen Center v. Gessler, 770 F.3d 900, 909 (10th Cir.
2014).
                                       17
      In its reply brief, Kellogg argues that the indemnity clause satisfied

the requirement of conspicuousness. Kellogg’s Reply Br. at 14. We

disagree.

      As noted above, the fair notice rule requires an indemnity clause to

be conspicuous. See part II(B), above. A clause is considered

“conspicuous” when it would attract the attention of a reasonable person.

Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 511 (Tex.

1993). Texas cases provide examples of provisions that would attract

attention, such as different size type, all capital letters in a heading, and

different colors. See Storage & Processors, Inc. v. Reyes, 134 S.W.3d 190,

192 (Tex. 2004) (type-size and colors); Dresser Indus., Inc. v. Page

Petroleum, Inc., 853 S.W.2d 505, 511 (Tex. 1993) (all capital letters in a

heading).

      The indemnity language appears on page 86 of a 197-page document.

Appellant’s App. at 263. The clause, along with the rest of the document,

is single-spaced, small type, and in black-and-white. There is nothing,

amidst the 197 pages, to capture the attention of a reasonable person.

      Kellogg argues that the indemnity clause is mentioned in another

document, which is only 4 pages long. That is true. In the 4-page

document, labeled “Exhibit C,” the indemnity clause is mentioned, stating

                                       18
that Eby’s predecessor “agree[d] to be bound by all of the terms,

provisions, conditions, indemnification, and liabilities imposed upon

Contractor under the terms and provisions of said Contract Documents to

the same extent as though the same were copied verbatim herein at length.”

Id. at 264. But, the 4-page document does not state the terms. To learn

the terms of the indemnity obligation, a reader must go to “said Contract

Documents” and read 86 pages (almost halfway into the document). The

table of contents and headings do not help because the indemnity clause is

buried in a section that doesn’t seem related to indemnity (called

“Protection of Existing Structures and Facilities”). Id. at 502.

     In short, the indemnity clause bears none of the indicia that might

typically attract a reader’s attention: The clause is on page 86 of a 197-

page document, single-spaced along with the rest of the document, in

black-and-white, without a heading that calls attention to indemnity. The

clause is not conspicuous.

     2.    Actual Notice

     In a reply brief, Kellogg argues for the first time that Eby had actual

notice of the indemnity provision. Kellogg’s Reply Br. at 11-13. We

reject this argument because it was waived and unsupported when Kellogg

responded to Eby’s summary judgment motion.

                                     19
      The argument is too late because an appellant must present its

grounds for reversal in the opening brief. Fed. R. App. P. 28(a)(8)(A). In

the opening brief, Kellogg made no mention of “actual notice.” This issue

was first raised in Kellogg’s reply brief. Thus, Kellogg waived the issue.

See, e.g., M.D. Mark, Inc. v. Kerr-McGee Corp., 565 F.3d 753, 768 n.7

(10th Cir. 2009) (“[T]he general rule in this circuit is that a party waives

issues and arguments raised for the first time in a reply brief.”).

      Kellogg’s argument is not only waived, but also unsupported.

Kellogg raised the argument in district court, but failed to present any

evidence that Eby’s predecessor had known that it was promising

indemnity for claims involving the indemnitee’s own fault.

      Instead, Kellogg argued that Eby’s predecessor must have known

about the indemnity terms because it signed a 4-page contract referring to

the indemnity clause. 7 But as noted above, the 4-page contract did not

contain any terms and referred only to the indemnification terms in the 197

single-spaced pages. The 4-page contract does not support a reasonable


7
       In a surreply brief filed in district court, Kellogg added evidence that
Eby had admitted knowledge of the indemnity agreement. Appellant’s
App. at 1289. But, the District of Kansas does not permit the raising of
new arguments in a surreply brief. See First Specialty Ins. Corp. v. NAIS,
Inc., 459 F. Supp. 2d 1094, 1099 (D. Kan. 2006). Eby had no opportunity
to address the new arguments in either of the briefs that it filed in district
court.
                                        20
inference of actual notice regarding the indemnity terms buried in the

middle of 197 pages. See Am. Home Shield Corp. v. Lahorgue, 201 S.W.3d

181, 186-87 (Tex. App. 2006) (holding that actual notice requires proof

beyond the fact that a party read the contract before signing it).

      Kellogg’s argument of actual notice is waived and unsupported.

Thus, actual notice cannot serve as the basis for reversal.

      E.    Effect of the Fair Notice Rule

      The fair notice rule involves a tool of contract interpretation. See

Fisk Elec. Co. v. Constructors & Assocs., Inc., 888 S.W.2d 813, 814 (Tex.

1994) (“The express negligence requirement is not an affirmative defense

but a rule of contract interpretation.”). Because the indemnity clause is

unenforceable, we read the clause as if it didn’t cover the pipeline owner’s

claims against Kellogg. See Reyes v. Storage Processors, Inc., 86 S.W.3d

344, 351 (Tex. App. 2002) (“[A]n employee who has executed a liability

waiver that is defective for failing to meet the fair notice requirements is

in the same position as if he had never signed the release, unless he had

actual knowledge of the release’s provisions.”), aff’d, 134 S.W.3d 190

(Tex. 2004). As a result, Eby has no contractual obligation to reimburse

Kellogg for its attorneys’ fees or costs. In these circumstances, the award

of summary judgment to Eby was proper.

                                      21
III.   Travelers and Eby: Assumption of Contractual Liability

       Kellogg sued not only Eby, but also Eby’s insurer: Travelers.

Travelers did not name Kellogg as an insured. But Travelers apparently

acknowledges that it agreed to insure parties whose liabilities were

assumed by Eby in a “covered contract.” Kellogg contends that

       ●    even if Eby’s promise of indemnity was unenforceable, it had
            been made, and

       ●    because the promise had been made, Travelers (as Eby’s
            insurer) indirectly insured Kellogg for the money spent
            defending the pipeline owner’s claims.

We disagree with Kellogg. 8

       Under Texas law, we must interpret the indemnity clause in a way

that does not cover damages caused by Kellogg’s fault. See part II(E),

above. As discussed above, this interpretation means that the indemnity

clause does not cover the pipeline owner’s claims against Kellogg. And

without an underlying indemnity clause covering Kellogg’s expenses, Eby

did not assume Kellogg’s liability. Therefore, Eby’s insurer (Travelers)

never agreed to provide insurance to cover Kellogg’s claims. In the

absence of insurance coverage, the district court properly granted summary



8
     Because Travelers is not liable on other grounds, we need not decide
whether there is a covered contract.

                                     22
judgment to Travelers on the claim involving Eby’s assumption of

contractual liability. 9



IV.   Conclusion

      Applying the fair notice rule to the indemnification clause, we

conclude that Eby’s indemnity promise was unenforceable. It was as if the

indemnity promise had never been made.

      Without an enforceable indemnity promise, Eby and Travelers are

entitled to summary judgment: Eby cannot incur liability for an

unenforceable promise, and Travelers did not insure Kellogg. As a result,

we affirm the summary judgment rulings.




9
      Kellogg relies on Gilbane Building Co. v. Admiral Insurance Co.,
664 F.3d 589 (5th Cir. 2011). But there the court was addressing coverage
of the indemnitee as an “additional insured.” Gilbane Bldg. Co., 664 F.3d
at 593-96. “A contract provision that extends direct insured status as an
additional insured is deemed to be separate and independent from the
indemnity agreement.” Travelers Lloyds Ins. Co. v. Pac. Emp’rs Ins. Co.,
602 F.3d 677, 682 (5th Cir. 2010). Our issue is different: the effect of an
unenforceable indemnity clause. Kellogg has not raised the argument
involved in Gilbane Building Co.: the indemnitee’s coverage as an
“additional insured.”
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