                                                                                       ACCEPTED
                                                                                      14-15-00614
                                                                   FOURTEENTH COURT OF APPEALS
                                                                                HOUSTON, TEXAS
                                                                              8/31/2015 2:44:33 PM
                                                                             CHRISTOPHER PRINE
                                                                                            CLERK


                          No. 14-15-00614-CV
                                                                 FILED IN
                                                          14th COURT OF APPEALS
                                                             HOUSTON, TEXAS
                  IN THE COURT OF APPEALS
                                                          8/31/2015 2:44:33 PM
            FOR THE FOURTEENTH DISTRICT OF T             EXAS
                                                          CHRISTOPHER A. PRINE
                                                                   Clerk


                    MAXIM CRANE WORKS, L.P. ,

                                                    Appellant
                                   V.

            BERKEL & COMPANY CONTRACTORS, INC.

                                                    Appellee


              Appeal from the 149th Judicial District Court
                        Brazoria County, Texas
                   Trial Court Cause No. 75576-CV


         BERKEL & COMPANY CONTRACTORS, INC.’S
      OBJECTIONS TO MEDIATION & ABATEMENT ORDER
 
 
    Thomas C. Wright                    Reagan W. Simpson
    State Bar No.22059400               State Bar No. 18404700
    Jessica Z. Barger                   YETTER COLEMAN LLP
    State Bar No. 24032706              909 Fannin Street, Suite 3600
    Garrett A. Gibson                   Houston, Texas 77010
    State Bar No. 24069024              Tel. 713-632-8000
    WRIGHT & CLOSE, LLP                 Fax 713-632-8002
    One Riverway, Suite 2200
    Houston, Texas 77056
    (713) 572-4321
    (713) 572-4320 (fax)
TO THE HONORABLE FOURTEENTH COURT OF APPEALS:

      Appellee, Berkel & Company Contractors, Inc. (“Berkel”) files this

objection to this Court’s mediation order, and respectfully shows the Court as

follows.

                                INTRODUCTION

      The Court’s mediation order is premature because Maxim’s appeal for

indemnity and defense costs is not ripe as this is an appeal from a final judgment,

signed on June 17, 2015, against Berkel and Maxim for damages in excess of $43

million. (See Ex. A, Final Amended Judgment) Maxim entered into a settlement

with Plaintiff for its portion of the judgment. Berkel, however, responsible for 90

percent of the judgment, has filed a motion for new trial—set to be heard on

August 31, 2015. Berkel’s notice of appeal (in the event a new trial is not granted)

is not due until September 15, 2015.

      Maxim’s attorney’s fees and indemnity claims is contingent on the outcome

of any appeal on the merits in this case. (See Ex. B, Maxim’s supplemental motion

for entry of judgment on Maxim’s Cross Action Against Berkel)                In sum,

mediation in Maxim’s appeal premature until there has been a final outcome on the

merits – either in the trial court or on appeal – on the issues between Plaintiffs and

Berkel.




                                          2
          REASONS SUPPORTING OBJECTIONS TO MEDIATION

        Appellee Berkel and Appellant, Maxim, were co-defendants in the

underlying trial court proceedings in Brazoria County. At the conclusion of trial,

the jury found Berkel 90% responsible and Maxim 10% responsible for the

underlying incident, a construction accident in which the plaintiff’s leg was

severed. The jury awarded over $43 million to Plaintiff, his wife, and his daughter.

(See Ex. A, Final Amended Judgment) Maxim has settled with Plaintiffs, but

continues to pursue its indemnity and breach of contract claims against Berkel.

        Maxim advised the trial court that its claim for relief against Berkel was

dependent on the outcome of the arguments Berkel is making in the trial court and

anticipates making on appeal if necessary. Berkel’s motion for new trial is

scheduled to be heard by the trial court on August 31, 2015. (See Ex. C, Notice of

Hearing) Berkel’s notice of appeal would not be due until September 15, 2015.

Since Maxim’s claims are contingent – at least in part – on the outcome of the

merits of Berkel’s arguments, this Court should withdraw its mediation order until

the claims of Plaintiffs against Berkel have been finally resolved on appeal.

                                    Conclusion

        For the foregoing reasons, Berkel & Company Contractors, Inc. respectfully

requests that this Court withdraw its mediation and abatement order of August 20,

2015.



                                          3
        Respectfully submitted,


        /s/ Jessica Z. Barger
        Thomas C. Wright
        State Bar No.22059400
        Jessica Z. Barger
        State Bar No. 24032706
        Garrett A. Gibson
        State Bar No. 24069024
        WRIGHT & CLOSE, LLP
        One Riverway, Suite 2200
        Houston, Texas 77056
        (713) 572-4321
        (713) 572-4320 (fax)
        wright@wrightclose.com
        barger@wrightclose.com
        gibson@wrightclose.com

        /s/ Reagan W. Simpson
        Reagan W. Simpson
        State Bar No. 18404700
        YETTER COLEMAN LLP
        909 Fannin Street, Suite 3600
        Houston, Texas 77010
        Tel. 713-632-8000
        Fax 713-632-8002
        rsimpson@yettercoleman.com

        ATTORNEYS FOR APPELLEE,
        BERKEL & COMPANY
        CONTRACTORS, INC.




    4
                       CERTIFICATE OF CONFERENCE
      I certify that I conferred with opposing counsel on August 29, 2015
regarding the filing of this motion. This motion is opposed.

                                              /s/ Jessica Z. Barger
                                              Jessica Z. Barger


                          CERTIFICATE OF SERVICE
       I hereby certify that a true and correct copy of this document was served on
all counsel of record in this case, identified below, on August _31, 2015,
electronically through the electronic filing manager and or via facsimile in
compliance with the Texas Rules of Civil Procedure:

Kurt B. Arnold                              Charles “Chuck” L. Clay, Jr.
M. Paul Skrabanek                           CHUCK CLAY & ASSOCIATES
ARNOLD & ITKIN LLP                          225 Peachtree Street, N.E., Suite 1700
6009 Memorial Drive                         Atlanta, GA 30303
Houston, TX 77007                           Chuck@chuckclay.com
713-222-3850 (fax)
e-service@arnolditkin.com

Ann E. Knight                               John D. Dwyer
J DIAMOND AND ASSOCIATES                    GORDON & REES LLP
 PLLC                                       633 West Fifth street, 52nd Floor
1010 N. San Jacinto                         Los Angeles, CA 90071
Houston, TX 77002                           213-680-4470 (fax)
713-227-6801 (fax)
ann@jdiamondandassociates.com

Steven D. Selbe
GORDON & REES, LLP
1900 West Loop South, Suite 1000
Houston, TX 77027
713-961-3938 (fax)
sselbe@gordonrees.com

                                              /s/ Jessica Z. Barger
                                              Jessica Z. Barger


                                        5
07/01/2015   03:18     9798641061                               149TH DISTRICT CT                   PAGE   02/04




                                                     CAUSE NO. 75576.. CV

      TYLER LEE AN:O LEIGH ANN LEE        §                             IN THE :OISTRICT COURT OF
      INDIVIOUALLY AND AS NEXT FRIEND     §
      OF SYDNEY ROSE LEE, MINOR           §
                                          §
                  Plaint([{               §
     vs.                                  §                             BRAZORIA COUNTY, TEXAS
                                          §
     BERKEl.. & COMPANY CONTRACTORS,      §
     INC., MAXIM CRANE WORKS, L.P., DIXON §
     EQUIPMENT SERVICES, INC., FLOYD      §
     DIXON, ISAAC DOLAN, JAMES DAVIDSON §
     ANDREW BENNETT, AND LINJ<..BELT      §
     CONSTRUCTION EQUIPMENT CO.           §
                                          §
                  Defendants              §                             l49TH JUDICIAL DISTRICT

                                          AMENDED FINAL JUDGMENT
             On Monday) April 20, 2015, this case was called to trial. Plaintiffs Tyler Lee and Leigh

      Ann Lee) individually and as next friend of Sydney Rose Lee, a. minor, appeared in person and

      th.t·ottgh their attorneys and announced ready for trial.             Defendants Berkel & Company

      Contractors) Inc. (";Berkel',) and Maxim Crane Works, L.P. ("Maxim'') appeared through their

      attorneys and announced ready for trial.

             P1'ior to the beginning of trial, Defendant Link-Belt Construction Equipment Co. and
                            , o(l.(,   Atn~; iliA.   4                                          .
      Plaintiffs announced ~ettlement of $1,000,000, which is treated as a credit in this Judgment.

             A jury of twelve qualified jurors of Brazoria County (with two alternates) were selected,

      sworn, and empanel1ed) after which the jury heard the evidence and the arguments of counsel.

      Following the conclusion of evidence, in response to the jury charge, the jury made findings that

      the Court received, filed and entered as record on May 6, 2015. The questions submitted to the

     jury and the jury's findings are attached as Exhibit A and incorporated by reference.

             The jury found Defendant Berkel 90% responsible for the occurrence and found

      Defendant Maxim 10% responsible for the occW"rence.




                                                                                             Exhibit A
07/01/2015   03:18      9798641061                         149TH DISTRICT CT                           PAGE     03/04




             After. trial but prior to the entry of this Judgment, Defendant Maxim and Plaintiffs

      reached a settlement of $3,544,300.60, which is treated as a credit in this Judgment.

             The Court hereby renders judgment for Plaintiffs against Berkel.

             The Court orders that Plaintiff Tyler Lee recover damages jointly and severally from

     Defendant Berkel in the sum of $38,744,866.13, pr~judgm.ent interest of $387,805.81 (calculated

     on past damage awat·d of $5,572,800 at the annual r.ate of 5% for an accrual period of 509 days),

     court costs and post-judgm.en.t interest at the annual rate of 5% 1.1ntil paid, together with all costs

     of court, including costs incutted in enforcement and collection.

             The Court orders that Pla.intiff Leigh A1111 Lee, individually) recover damages jointly and

     severally from Defendant Berkel in the sum of $174~357.14, prejudgment interest of $6,263.01

     (calculated on past damage award of $90,000 at the annual :r.ate of 5% for       a11   accrual period of

     509 days), court costs, and   post~judgment   interest at the a11nual rate of 5% until. paid) together

     with all costs of court, including costs incurred in enforcement an.d collection.

             The Court orders that Plaintiff Leigh Ann Lee; as next friend of Sydney Rose Lee, a

     minor, recover damages jointly and severally from Defendant Berkel in the sum of $479,482.13,

     prejudgment inte1·est of $3,131.51 (calculated on past damage award of $45,000 at the annual

     rate of 5% for an accrual period of 509 days), court costs) an.d post..judgment interest at the

     annual rate of 5% until paid, together with all costs of court, including costs incurred in

     enforcement and collection.

             The Court orders that Ma.xim)s Defense Fees) Costs and Expenses are as follows:
             Attorney's fees--                                              $327)000.00;
             Expert witness expenses/costs--                                $106,000.00;
             Miscellaneous expenses/costs--                                 $30,000.00; and
             Trial expenses/costs--                                         $41,600.00


                                                       2


                                                                                                 Exhibit A
07/01/2015    03:18     9798641061                          149TH DISTRICT CT                    PAGE     04(04




              Total Defense Fees, Costs, and Expenses are:                $504,600.00

              The Court additionally orders that pursuant to the .iury's findings as to the negligence
     questi011s in the Court's Jury Charge, and Chapter. 151 of The Texas Insurance Code, Maxim is
     not entitled. to reimbursement of Maxim's Defense Fees, Costs, and Expenses of and from Berkel;
             The Court hereby renders judgment for Berkel against Maxim on Maxim's Cross Action.

             All relief not expressly granted by this Judgment is denied.       This judgment is final,

     disposes of all claims and parties, and is appealable.

              The Court orders execution to issue for this .Tudg1nent.

              SIGNED this _l!__ day     of~2015.

                                             HONOi\           E,JijjjGE TERRI HOLDER




                                                        3


                                                                                            Exhibit A
                                  CAUSE NO. 75576-CV

TYLER LEE Al""D LEIGH ANN LEE        §                  IN THE DISTRICT COURT OF
INDIVIDUALLY AND AS NEXT FRIEND      §
OF SYDNEY ROSE LEE, MINOR            §
                                     §
            Plaintiff                §
                                     §
VS.                                  §                  BRAZORIA COUNTY, TEXAS
                                     §
BERKEL & COMPANY CONTRACTORS,        §
INC., MAXIM CRANE WORKS, L.P., DIXON §
EQUIPMENT SERVICES, INC., FLOYD      §
DIXON, ISAAC DOLAl"", JAMES DAVInSON §
ANDREW BENNETT, AND LINK-BELT        §
CONSTRUCTION EQUIPMENT CO.           §
                                     §
            Defendants               §                  149TH JUDICIAL DISTRICT

       MAXIM'S SUPPLEMENTAL MOTION FOR ENTRY OF JUDGMENT ON
                MAXIM'S CROSS ACTION AGAINST BERKEL

TO THE HONORABLE JUDGE OF SAID COURT:

       COMES NOW, MAXIM CRANE "YORKS, L.P. a Defendant in the above numbered

and referenced matter (hereinafter "Maxim") and files this Supplemental Motion for Entry of

Judgment on Maxim's Cross Action Against Berkel, and in support thereof would respectfully

show as follows:

                                            1.

     At the post-verdict hearings held on June 8, 2015, Berkel again, through a Motion for

JNOY, a Motion to Disregard, and a Motion for Entry of Judgment, asked the court to fmd

that Berkel is entitled to the workers' compensation bar to suit and that the Lees' claims

and verdict against Berkel should, as a matter oflaw, be disposed of by the court-i.e. that

the Lees should take nothing of and from Berkel (hereinafter may sometimes be referred to

as "Berkel's Comp Bar Argument"). The court has taken Berkel's arguments under




                                                                                  Exhibit B
advisement; thus, the reason why Maxim has fIled this Supplemental Motion for Entry of

Judgment on Ma.x:im's Cross Action Against Berkel.

                                                                                                                                  II.

        Maxim hereby adopts and incorporates by reference, as if the same was fully set forth

herein below, its previously filed Motion for Entry of Judgment as to lvlaxim's Cross Action

Against Berkel (and Exhibits), which was filed on or about June 4, 2015. Hereinafter referred to

as the "Original Motion for Entry of Judgment." The Original Motion for Entry of Judgment was

based upon the facts and status of the case that existed at the time said pleading was filed.

Specifically, that Berkel was not considered Mr. Lee's employer for purposes of the Texas

Worker's Compensation Act, and so did not have the benefit of the workers compensation bar to

suit by the Lees. Under that set of circumstances and facts, Maxim acknowledges that pursuant

to Chapter 151 of the Texas Insurance Code (the Texas Anti-Indemnity Act) it would not be

entitled to indemnity of and from Berkel; however, Maxim is of the opinion that it would be

entitled to its defense costs of and from Berkel, but only to the extent caused in whole or in part

by any negligent act or omission or any intentional act of Berkel. See the language of Chapter

151 below:

       Sec. 151.102. AGREEMENT VOID AND UNENFORCEABLE.

       Except as provided by Section 151.103, a provision in a construction contract, or
       in an agreement collateral to or affecting a construction contract, is void and
       unenforceable as against public policy to the extent that it requires an indemnitor
       to indernnify, hold hannless, or defend a party, including a third party, against a
       claim caused by the negligence or fault, the breach or violation of a statute,
       ordinance, governmental regulation, standard, or rule, or the breach of contract of
       the indemnitee, its agent or employee, or any third party under the control or
       C'~~"""''''''''-':7~C''~r\"n
       J\,.j.p~l     Y l..:J..lV.Ll
                                      t>.-f't"ht::>
                                      V..l   U..l .....
                                                          ~-nr1P."YrI-n1+PP.
                                                          -'--'--'-U.V.l..l..li.1..l ............. ,
                                                                                                       nthpr th<;:ln     t"hp. -i-nilp.rn-n-itnr nr -it~ '--"0
                                                                                                             l..LU.U.-'- , ....'--'-v -'--'--'-............... -'--'-.'-'.1....., ... '-'-'-
                                                                                                       '-'UH,.,-'-
                                                                                                                                                                                             <;lo-p-nt
                                                                                                                                                                                           .11...,
                                                                                                                                                                                                                prn-nl(yupp or
                                                                                                                                                                                                 .....-'--'-1.' ""' ..... -'-.>.y ... ..., J ........ , '-'-'-

       subcontractor of any tier. [Emphasis addedJ




                                                                                                                                                                                                                                                     Exhibit B
        In the Charge submitted to the jury by the court, MAXli\1 was assessed 10% responsible,

and BERKEL was assessed 90% responsible, in the negligence/liability questions. See Exhibit D,

herein. Therefore, it is Maxim's position that it is entitled to reimbursement of 90% of its

defense costs.

      Contrary to Berkel's assertions, when the anti-indemnity provisions of Chapter 151 are

reviewed, the intent of the statute is clear, that is, to avoid both defense and indemnification and

additional insured clauses/provisions that purport to indemnifY the indemnitee/additional insured

for its own negligence or fault, but not void the indemnity provision in its entirety. The

indemnity provision is unenforceable to the extent that it requires the indemnitor to indemnify

the indemnitee for the indemnitee's negligence. The Bare Rental Agreement between Maxim

and Berkel does not require Berkel to defend and indemnifY Maxim for Maxim's own

negligence. Rather, the Agreement states Berkel shall do so "but only to the extent caused in

whole or in part by any negligent act or omission or any intentional act of Lessee (Berkel) ... "

       However, in the event that this court, post-verdict, or some appellate court in the

future, agrees with Berkel's Comp Bar Argument and concludes that Berkel was Tyler

Lee's employer at the time of incident at issue and that, therefore, Berkel is entitled to the

workers' compensation bar to suit, that the Lees' claims and verdict against Berkel should,

as a matter of law, be dismissed, and that the Lees should take nothing of and from Berkel,

then it is Maxim's position that it is entitled to not only 90% of its defense costs, but also to

indemnity, of and from Berkel in the amount of the verdict returned by the jury in this

case. Chapter 151 supports Maxim's position as to indemnity under the above described facts

and circumstances. See the Exception to Chapter 151 set forth below:




                                                                                         Exhibit B
        Sec. 151.103. EXCEPTION FOR EMPLOYEE CLAIM.

        Section 151.102 does not apply to a provision in a construction contract that
        requires a person to indemnifY, hold harmless, or defend another party to the
        construction contract or a third party against a claim for the bodily injury or death
        of an employee of the indemnitor, its agent, or its subcontractor of any tier.

So, if Berkel is allowed to utilize the workers compensation bar to suit as a defense to the Lee

claims and verdict, then, pursuant to Chapter 151.103 and the Bare Rental Agreement, Berkel

would be considered Lee's employer, the exception to the Anti-Indemnity Statute would apply,

and Berkel would owe Maxim both defense and indemnity.

                                                    m.
        Pursuant to its Original Motion for Entry of Judgment, Maxim submitted two proposed

Judgments for the Court to consider as to the defense costs issue--{)ne in favor of Maxim, and

one in favor of Berkel. At the June 8, 2015 post-verdict hearing, Maxim made its position as to

these proposed Judgments     clear~either   the court should enter the appropriate Judgment as a



the applicable wording of the appropriate Judgment and paste it into the Final Judgment that

the court ultimately elects to enter in the case.

                                                    H1
                                                    "    .
       However, in the event that the Court embraces Berkel's Comp Bar Argument and is

inclined to issue a ruling/Judgment accordingly, then Maxim attaches another proposed

Judgment for the court's consideration. See Extibit "A". Like the other two Judgments

previously proffered by Maxim, if the court elects to go with the Judgment attached as Exhibit

"A", then the Court should enter said Judgment as a "Partial Judgrnent" and do so before the

entry of the Final Judgment, or the Court should take the applicable wording of said Judgment

and paste it into the Final Judgment that the court ultimately elects to enter in the case.


                                                                                         Exhibit B
        The Judgment attached as Exhibit "A" permits Maxim, under the circumstance wherein

Berkel's Comp Bar Argument is embraced by the Court, to recover indemnity of and from

Berkel (pursuant to Chapter 151.103 and the Bare Rental Agreement) in the amount found by

the jury in their verdict from the trial ofthis case.

                                    v. PRAYER FOR RELIEF
        WHEREFORE, PREMISES CONSIDERED, lVIAXIlVI CRANE WORKS, L.P.,

prays that if the court is inclined to issue a Judgment in favor of Berkel on the workers

compensation bar to suit, then MAXlM moves the court to enter a Partial or Final Judgment in

accordance with the Judgment attached hereto as Exhibit "A," in the above numbered and

captioned matter; and for such other and further relief, both general and special, at law and in

equity to which MAXIM may otherwise be justly entitled.


                                                Respectfully submitted,

                                                J. DIAMOND & ASSOCIATES, PLLC


                                                       /s/ Jeffrey L. Diamond
                                               Jeffrey L. Diamond
                                                       State BarNo. 05802500
                                               Ann E. Knight
                                                       State Bar No. 00786026
                                                1010 N. San Jacinto Street
                                               Houston, Texas 77002
                                               Tel: (713) 227-6800
                                               Fax: (713) 227-6801
                                               jeff@jdiamondandassociates.com
                                               ann@jdiamondandassociates.com

                                               Attorneys for Defendants:
                                               Maxim Crane Works, L.P., and James Davidson




                                                                                     Exhibit B
                                 CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the forgoing instrument was served upon
all known counsel of record via facsimile, hand delivery, and/or certified mail, return receipt
requested, on the 9th day ofJune, 2015.

Kurt B. Amold                                   Andrew T. McKinney IV
ARNOLD & ITKIN                                  D. Douglas Mena
6009 Memorial Drive                             LITCHFIELD CAvo LLP
Houston, TX 77007                               One Riverway, Suite 1000
                                                Houston, TX 77056

Charles Lloyd Clay, Jr.                         Jerry B. Dozier
CHUCK CLAY & ASSOCIATES, LLC.                   LAW OFFICE OF JERRY B. DOZIER
3280 Peachtree Road NE, Suite 2050              2318 Koster Road
Atlanta, GA 30305                               Alvin, TX 77511

John Dwyer                                      Russell S. Post
GORDON & REES, LLP                              Beck Redden LLP
633 West Fifth Street, 52 nd Floor              1221 McKinney, Suite 4500
Los Angeles, CA 90071                           Houston, TX 77010

Steven D. Selbe                                 Justin Gilbert
GoRDON & REES, LLP                              GILBERT & FUREY
1900 West Loop South, Suite 1000                222 North Velasco Street
Houston, TX 77027                               Angleton, TX 77515


                                                  /S/ Jeffrey L. Diamond
                                                  Ann E. Knight




                                                                                    Exhibit B
·HI I



        Exhibit B
                                       CAUSE NO. 75576-CV

TYLER LEE AND LEIGH Al~ LEE          §                          IN THE DISTRICT COURT OF
INDIVIDUALLY AND AS NEXT FRIEND      §
OF SYDNEY ROSE LEE, MINOR            §
                                     §
            Plaintiff                §
VS.                                  §                          BRAZORIA COUNTY, TEXAS
                                     §
BERKEL & COMPANY CONTRACTORS,        §
INC., MAXIM CRANE WORKS, L.P., DIXON §
EQUIPMENT SERVICES, INC., FLOYD      §
DIXON, ISAAC DOLAN, JAMES DAVIDSON §
ANDREW BENNETT, Aj"D LINK-BELT       §
CONSTRUCTION EQUIPMENT CO.           §
                                     §
            Defendants               §                          149TH JUDICIAL DISTRICT

                                            JUDGMENT

      On April 20 th, 2015, the Court called this case for trial. All parties appeared in person and

through their respective attorneys, and announced ready for trial. The Court summoned a jury

panel and a qualified jury of twelve (plus two alternates) was sworn to be the jury and that jury,

together with the Court, proceeded to hear the evidence with that jury retiring to consider the

verdict and thereafter returning its verdict into open court.

        MAXIM CRANE WORKS, L.P. and JAMES DAVIDSON (collectively "MAXIM")

filed a cross action against BERKEL & COMPANY CONTRACTORS, INC., ("BERKEL")

on or about June 12, 2014, for breach of contract. MAXIM'S cross action was based upon the

Bare Rental Agreement between it and BERKEL. At the Jury Charge Conference, MAXIM

requested that a Breach of Contract question be submitted to the jury for consideration, but the

submission of same was objected to by BERKEL and sustained by the Court. A Breach of

Contract question was not submitted to the jury in the Court's Charge.

       The jury returned a verdict that found both defendants negligent. In the Charge submitted

to the jury by the Court, MAXIM was assessed 10% responsible, and BERKEL was assessed



                                                                                         Exhibit B
90% responsible, in the negligence/liability questions. The Jury also found for the Plaintiffs in

the damages questions contained in the court's Jury Charge.

        Whether MAXIM was entitled to reimbursement of its defense costs had previously

been submitted to the court for consideration via BERKEL'S Motion for Summary Judgment.

MAXIM filed responsive pleadings to BERKEL'S Motion and BERKEL, in tum filed a Reply

to same. On February 24, 2015, the Court issued an Order denying BERKEL'S Motion.

       At the Charge Conference, BERKEL argued and the Court concluded, that MAXIM'S

cross claim should not be couched in terms of breach of contract, but instead was a question of

law to be decided pursuant to Chapter 151 of the Texas Insurance Code (the Texas Anti-

Indemnity Act). Accordingly, both BERKEL and MAXIM agreed that MAXIM'S defense

fees, costs and expenses should be submitted to the court for consideration outside the presence

of the jury and the same was submitted to the judge via sworn testimony on May 6th , 2015.

       THEREFORE,          THE      COURT      ORDERS         THAT     MAXIM'S       claim   for

reimbursement of its defense fees, costs and expenses is governed by Chapter 151 of the Texas

Insurance Code (the Texas Anti-Indemnity Act) and by the Bare Rental Agreement entered

into by MAXIM and BERKEL, and is a question oflaw for the court.

       THEREFORE, THE COURT FURTHER ORDERS THAT MAXIM'S defense

fees, costs and expenses are as follows:

       Attorney's fees--                                          $327,000.00;

       Expert witness expenses/costs--                            $121,800.00;

       Miscellaneous expenses!costs--                             $30,000.00; and

       Trial expenses/costs--                                     $41,695.00

       TOTAL DEFENSE FEES, COSTS            Al~D   EXPENSES       $540,495.00

       The COURT ADDITIONALLY ORDERS that pursuant to the jury's findings as to the

negligence questions in the Court's Jury Charge, the Bare Rental Agreement between BERKEL



                                                                                      Exhibit B
and MAXIM, and Chapter 151 of The Texas Insurance Code, BERKEL is to reimburse Maxim

90% of MAXIM'S TOTAL DEFENSE FEES/EXPENSES/COSTS, which amounts to

$486,445.50.

       The COURT ADDITIONALLY ORDERS that pursuant to its decision(s) regarding

BERKEL'S request for relief under the Texas Workers' Compensation Act's bar to suit,

MAXIM'S claim for indemnity is governed by the Bare Rental Agreement entered into by

MAXIM and BERKEL, and Chapter 151.103 of the Texas Insurance Code (the Texas Anti-

Indemnity Act), and is a question oflaw for the court.

       Accordingly, the COURT ORDERS that pursuant to the jury's findings as to the

negligence and damages questions in the Court's Jury Charge, the Bare Rental Agreement

between BERKEL and MAXIM, and Chapter 151.103 of The Texas Insurance Code, BERKEL

is to indemnify and pay Maxim the sum of $3,444,300.60, which is the amount of the verdict the

jury returned against Maxim.

       THE COURT DENIES         an further relief not granted in this judgment.
       SIGNED this ___ day ofJune, 2015.



                                    HONOR".BLE JUDGE TERF..1 HOLDER




                                                                                   Exhibit B
                                                                         Filed for Record
                                                                         7/17/2015 1:44:05 PM
                                                                         Rhonda Barchak, District Clerk
                                                                         Brazoria County, Texas
                                                                         75576-CV
                                                                         Kelley Hanson, Deputy

                                CAUSE NO. 75576-CV

TYLER LEE AND LEIGH ANN LEE,                §         IN THE DISTRICT COURT
INDIVIDUALLY AND AS NEXT                    §
FRIEND OF SYDNEY ROSE LEE,                  §
MINOR                                       §
                                            §
Plaintiffs                                  §
                                            §
v.                                          §       BRAZORIA COUNTY, TEXAS
                                            §
BERKEL & COMPANY                            §
CONTRACTORS, INC., MAXIM                    §
CRANE WORKS, L.P., DIXON                    §
EQUIPMENT SERVICES, INC., FLOYD             §
DIXON, ISAAC DOLAN, JAMES                   §
DAVIDSON, ANDREW BENNETT,                   §
AND LINK-BELT CONSTRUCTION                  §
EQUIPMENT CO.                               §
                                            §
Defendants                                  §        149TH JUDICIAL DISTRICT

                           NOTICE OF ORAL HEARING

       PLEASE TAKE NOTICE that Berkel & Company Contractors, Inc.’s Amended

Motion for New Trial and Motion for Remittitur has been set for Monday, August 31,

2015 at 9:00 a.m. in the 149th District Court, Brazoria County, Texas.

                                         Respectfully submitted,

                                         /s/ Thomas C. Wright
                                         Thomas C. Wright
                                         State Bar No. 22059400
                                         Jessica Z. Barger
                                         State Bar No. 24032706
                                         Garrett A. Gibson
                                         State Bar No. 24069024
                                         WRIGHT & CLOSE, LLP
                                         One Riverway, Suite 2200
                                         Houston, TX 77056




                                                                              Exhibit C
713-572-4321
713-572-4320 (fax)
wright@wrightclose.com
barger@wrightclose.com
gibson@wrightclose.com

ATTORNEYS FOR DEFENDANTS
BERKEL & COMPANY CONTRACTORS,
INC AND ANDREW BENNETT




                         Exhibit C
                            CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of this document was served on all
counsel of record in this case, identified below, on July 17, 2015, electronically through
the electronic filing manager and or via facsimile in compliance with the Texas Rules of
Civil Procedure:

Kurt B. Arnold                                Charles “Chuck” L. Clay, Jr.
M. Paul Skrabanek                             CHUCK CLAY & ASSOCIATES
ARNOLD & ITKIN LLP                            225 Peachtree Street, N.E., Suite 1700
6009 Memorial Drive                           Atlanta, GA 30303
Houston, TX 77007                             Chuck@chuckclay.com
713-222-3850 (fax)
e-service@arnolditkin.com

Ann E. Knight                                 John D. Dwyer
J DIAMOND AND ASSOCIATES                      GORDON & REES LLP
 PLLC                                         633 West Fifth street, 52nd Floor
1010 N. San Jacinto                           Los Angeles, CA 90071
Houston, TX 77002                             213-680-4470 (fax)
713-227-6801 (fax)
ann@jdiamondandassociates.com

Steven D. Selbe
GORDON & REES, LLP
1900 West Loop South, Suite 1000
Houston, TX 77027
713-961-3938 (fax)
sselbe@gordonrees.com




                                         Thomas C. Wright
                                         Thomas C. Wright




                                                                               Exhibit C
