                IN THE SUPREME COURT OF TEXAS
                                          ══════════
                                             No. 14-0650
                                          ══════════

        CENTERPOINT BUILDERS GP, LLC AND CENTERPOINT BUILDERS, LTD.,
                                PETITIONERS,

                                                   v.


                                TRUSSWAY, LTD., RESPONDENT

             ══════════════════════════════════════════
                         ON PETITION FOR REVIEW FROM THE
                  COURT OF APPEALS FOR THE NINTH DISTRICT OF TEXAS
             ══════════════════════════════════════════

        JUSTICE BOYD, joined by JUSTICE JOHNSON, dissenting.

        Centerpoint Builders seeks indemnity from Trussway, Ltd., under the Texas Products

Liability Act. The sole issue in this interlocutory appeal is whether Centerpoint qualifies under the

Act as a “seller” of Trussway’s allegedly defective roof truss. The first time this Court addressed

the Act’s indemnity provisions it warned that, “when we stray from the plain language of a statute,

we risk encroaching on the Legislature’s function to decide what the law should be.” Fitzgerald v.

Advanced Spine Fixation Systems, Inc., 996 S.W.2d 864, 866 (Tex. 1999). I conclude that the

Court strays from the statute’s plain language in this case by excluding from the definition of

“seller” those persons whose sales of a product are “incidental” to its sales of services. Ante at ___.

The statute’s definition of “seller” says nothing about sales that are “incidental” to sales of services.

Instead, it includes all those who are “engaged in the business of” selling the product, and nothing

in the ordinary, common meaning of the phrase “engaged in the business” excludes business
activities that are “incidental” to other business activities in which the person is also engaged.

Because the evidence here establishes that Centerpoint was “engaged in the business of” selling

trusses, the Act’s plain language makes it a “seller” entitled to indemnity regardless of whether

those sales were “incidental” to its other business activities. Because the Court holds otherwise, I

respectfully dissent.

                                                        I.
                                                   Introduction

         Centerpoint was the general contractor for the construction of an apartment complex on

property owned by Glenmont Madison Beaumont, LLC. Pursuant to the contract, Centerpoint

purchased preassembled roof trusses1 directly from Trussway, Ltd., and subcontracted with

Sandidge & Associates to install them. Sandidge, in turn, contracted with Merced Fernandez to

assist with the installation. During the construction, Sandidge’s crew moved the trusses into place

on top of what would become the second-floor ceiling and left them laying there flat like “fallen

dominoes” until they could be raised and installed. While carrying a piece of sheetrock and using

the uninstalled trusses like a “platform” above the second floor, Fernandez stepped on one of the

trusses, the board beneath him broke, and he fell and suffered permanent, debilitating injuries.




         1
          According to the parties and the record, trusses are wooden structures typically formed by fastening multiple
2x4 boards together using a particular design that enables them to bear the weight of a roof suspended above the
ceiling below. Builders (or their framing subcontractors) sometimes construct trusses themselves by nailing the
necessary boards together at the jobsite. Alternatively, the builder may purchase fully constructed trusses from a truss
manufacturer like Trussway, and then modify them at the jobsite as necessary, as Centerpoint did here. By suspending
the roof above the ceiling, trusses create attic space above the floor below. After the framers install the trusses, a
drywall (or “sheetrock”) subcontractor may install drywall along the trusses’ vertical boards to finish-out the attic
space.
                                                               2
       Fernandez sued Glenmont, Centerpoint, Sandidge, and Trussway, alleging that the truss

that broke beneath him was unreasonably dangerous and that “the Defendants” (including

Centerpoint) “designed, manufactured, marketed, distributed[,] and utilized” the product and

“placed [it] into the stream of commerce.” Centerpoint and Trussway filed cross-claims against

each other seeking indemnity from the other under the Texas Products Liability Act. TEX. CIV.

PRAC. & REM. CODE §§ 82.001–.008. Both Centerpoint and Trussway then filed cross-motions for

summary judgment on their indemnity claims.

       The trial court denied Trussway’s summary-judgment motion and granted partial summary

judgment for Centerpoint, holding that, for purposes of indemnity under the Act, Centerpoint was

a “seller” of the allegedly defective truss. On Trussway’s agreed interlocutory appeal, the court of

appeals reversed, and this Court now affirms that court’s judgment. In support of its conclusion

that Centerpoint was not a seller of the allegedly defective truss, the Court cites to the text of the

Products Liability Act, our precedents construing that text, and other precedents that address

whether a party is a “seller” under common-law strict-liability principles. In my view, none of

these authorities support the Court’s conclusion.

                                               II.
                                             The Text

       The Texas Products Liability Act requires a “manufacturer” to “indemnify and hold

harmless a seller against loss arising out of a products liability action, except for any loss caused

by the seller’s negligence, intentional misconduct, or other act or omission, such as negligently

modifying or altering the product, for which the seller is independently liable.” TEX. CIV. PRAC. &

REM. CODE § 82.002(a). The parties agree that Trussway was the “manufacturer” of the allegedly
                                                      3
defective truss, that this is a “products-liability action,” and that Centerpoint seeks indemnification

for a “loss” arising out of this action. The only issue is whether Centerpoint was a “seller” of the

allegedly defective truss.

         Because the Products Liability Act expressly defines the term “seller,” we need not decide

in this case whether Centerpoint was a seller of trusses under the term’s common, ordinary

meaning.2 When construing a statute, we do not rely on a term’s ordinary meaning if a “different

meaning is supplied by legislative definition.” Tex. Lottery Comm’n v. First State Bank of

DeQueen, 325 S.W.3d 628, 635 (Tex. 2010). If the statute defines a term, we are “bound to

construe that term by its statutory definition only.” Tex. Dep’t of Transp. v. Needham, 82 S.W.3d

314, 318 (Tex. 2002) (citing TEX. GOV’T CODE § 311.011(b)). The Products Liability Act expressly

defines the term “seller” to mean “a person who is engaged in the business of distributing or

otherwise placing, for any commercial purpose, in the stream of commerce for use or consumption

a product or any component part thereof.” TEX. CIV. PRAC. & REM. CODE § 82.001(3). We must

decide whether Centerpoint is a seller under this definition.


         2
            The Court suggests that the record here is “devoid of evidence” that Centerpoint was a “seller” of trusses,
and that the evidence “indicates that Centerpoint was selling construction services rather than trusses or other building
materials.” Ante at ___. To the extent the Court means to suggest that there is no evidence that Centerpoint was a truss
“seller” under the common, ordinary meaning of that term, I disagree. In ordinary usage, a “seller” is simply someone
“who sells or contracts to sell goods,” or even more generally, “a person who sells anything; the transferor of property
in a contract of sale.” Seller, BLACK’S LAW DICTIONARY (10th ed. 2014) (hereinafter BLACK’S 10th ed.). Under their
standard American Institute of Architects form contract, Centerpoint agreed to complete “the Work,” which included
the obligation to “provide and pay for” all “materials” necessary to “fulfill [Centerpoint’s] obligations.” The contract
required Centerpoint to warrant to Glenmont that all such materials were “of good quality and new” and “free from
defects.” In exchange for the Work, Glenmont agreed to pay Centerpoint a lump sum that included amounts to “cover
the cost to [Centerpoint] of materials,” including materials to be “incorporate[ed] in the completed construction.” The
contract specified the amount Glenmont would pay for the floor and roof trusses. And the contract expressly provided
that all payments for all materials would be conditioned on Glenmont becoming the legal owner of those materials. In
short, the parties agreed that Centerpoint would purchase and provide the trusses, Glenmont would pay Centerpoint
for the trusses, and Glenmont would then own the trusses. And that is exactly what happened.

                                                                4
         It is undisputed that Centerpoint “distributed”3 the truss in the stream of commerce4 for use

or consumption, and did so for a commercial purpose. The Court concludes, however, that

Centerpoint was not a seller because it was not “engaged in the business of commercially

distributing” trusses. Ante at ___ (emphasis added). Because the Act does not define “engaged in

the business of,” the Court seeks the common ordinary meaning of that phrase in Black’s

Dictionary, which defines

                   “engaged” as “to employ or involve oneself,” “to take part in,” or “to
                    embark on,” ante at ___ (quoting Engage, BLACK’S 10th ed.);

                    “business” as a “commercial enterprise carried on for profit; a particular
                    occupation or employment habitually engaged in for livelihood or gain,”
                    ante at ___ (quoting Business, BLACK’S 10th ed.); and

                   “doing business” as “the carrying out of a series of similar acts for the
                    purpose of realizing a pecuniary benefit,” ante at ___ (quoting Doing
                    Business, BLACK’S 10th ed.).

         Relying on these dictionary definitions to inform the meaning of the “entire phrase . . .

‘engaged in the business of,’” the Court holds that “one is not ‘engaged in the business of’ selling

a product if providing that product is incidental to selling services.” Ante at ___ (emphasis added).

Applying that holding, the Court concludes that Centerpoint’s sales of trusses were “incidental to

its contract to provide the services necessary to construct a building,” ante at ___ (quoting Barham

v. Turner Constr. Co. of Tex., 803 S.W.2d 731, 738 (Tex. App.—Dallas 1990, writ denied)),



         3
             To “distribute” means to “deliver,” to “spread out; to disperse.” Distribute, BLACK’S 10th ed.
         4
          See Fresh Coat, Inc. v. K–2, Inc., 318 S.W.3d 893, 899 (Tex. 2010) (rejecting argument that contractor “did
not place [stucco product] into the stream of commerce since [the product] was applied to walls that were part of
newly constructed homes”).

                                                                 5
because “Centerpoint did not set prices on the materials to achieve a gain or profit,” ante at ___,

and “Centerpoint used innumerable building materials” in addition to the trusses, ante at ___. The

Court then goes on to hold that “a general contractor who is neither a retailer nor a wholesale

distributor of any particular product is not necessarily a ‘seller’ of every material incorporated into

its construction projects . . . .” Ante at ___. I disagree, because nothing in the statute’s definition

of “seller” or in the common meaning of “engaged in the business of” supports the Court’s two

holdings or the evidentiary factors on which it relies.

A.      First Holding: “Incidental” Sales

        The Court’s first holding is that “one is not ‘engaged in the business of’ selling a product

if providing that product is incidental to selling services.” Ante at ___ (emphasis added). Although

the Court does not explain what it means by “incidental,” that term commonly refers to something

“[s]ubordinate to something of greater importance” or having “a minor role” within a greater

enterprise. Incidental, BLACK’S 10th ed. Presumably, under the Court’s incidental-sales test, an

entity is not “engaged in the business of” selling a product if that business activity is “subordinate”

in importance to, or plays only a “minor role” compared with, other business activities in which

the entity is also engaged. Nothing in the common meaning of “engaged in the business” or in the

statutory definition of “seller” supports this test.

        An entity can of course be simultaneously engaged in more than one business activity, 5 and

one or more of those activities will likely be more important or primary to the entity or to a


        5
         See, e.g., Gregory v. Roedenbeck, 174 S.W.2d 585, 587 (Tex. 1943) (noting that persons engaged in the oil-
and-gas-well-supply business may also be “engaged in other business”); Hous. Life Ins. Co. v. Dabbs, 125 S.W.2d
1041, 1043–44 (Tex. 1939) (noting that a corporation can “engage[] in a business foreign to its charter powers”).

                                                             6
particular transaction than another. Similarly, the entity may engage more regularly or

continuously in one or more business activities than another. But that one business activity is less

important or primary or that the entity engages in it less regularly or frequently does not mean it

is not “engaged in the business of” that activity. Under the common, ordinary meaning, the entity

is still “engaged in” (i.e., “employed,” or “involved” or “taking part” in, see Engage, BLACK’S

10th ed.) that “business” (i.e., the “commercial enterprise carried on for profit” or “gain,” Business,

BLACK’S 10th ed.), as those terms are commonly understood.

         Numerous Texas statutes confirm that the common meaning of “engaged in the business

of” does not exclude activities that are “incidental” to a business’s other activities.6 Many statutes,

for example, expressly apply only to persons that are “primarily” or “principally” engaged in the

business of a particular activity.7 And many other statutes expressly apply only to those who

“continuously” or “regularly” engage in a particular business activity or that conduct at least a

certain minimum amount or volume of the business.8 In fact, some statutes expressly apply only


          6
            This Court regularly and properly relies on “the use and definitions of [a] word in other statutes” to
determine the word’s common, ordinary meaning. Jaster v. Comet II Const., Inc., 438 S.W.3d 556, 563 (Tex. 2014)
(plurality op.).
         7
            See, e.g., TEX. CIV. PRAC. & REM. CODE § 27.010(b) (providing that the Texas Citizens Participation Act
does not apply to certain legal actions against “a person primarily engaged in the business of selling or leasing goods
or services” (emphasis added)); TEX. GOV’T. CODE § 27.060(c)(2) (requiring that Supreme Court adopt justice-court
rules for “specific procedures for an action by a person primarily engaged in the business of lending money at interest”
(emphasis added)); TEX. OCC. CODE § 1052.003(a)(12) (authorizing a person who “is primarily engaged in the
business of park and recreation planning” to engage in the practice of landscape architecture (emphasis added)); TEX.
TRANSP. CODE § 396.001(4) (defining “Recycling business” as a “business primarily engaged” in specific activities
(emphasis added)); TEX. TAX CODE §§ 171.1011(g-8), (g-10), (g-11), (w-1) (imposing unique tax obligations on
taxable entities that are “primarily engaged in” particular businesses (emphasis added)).
         8
          See, e.g., TEX. ELEC. CODE § 253.103(a)(1) (prohibiting a corporation from making a loan to a candidate,
officeholder, or political committee for campaign or officeholder purposes unless “the corporation has been legally
and continuously engaged in the business of lending money for at least one year before the loan is made” (emphases
added)); TEX. FIN. CODE § 308.001 (applying chapter only to persons “regularly engaged in the business of extending
                                                               7
to entities that are both primarily or principally and regularly engaged in a particular business

activity.9

         As the Court itself explains, we must presume that “the Legislature deliberately and

purposefully selects words and phrases it enacts, as well as deliberately and purposefully omits

words and phrases it does not enact.” Ante at ___ (quoting Tex. Mut. Ins. Co. v. Ruttiger, 381

S.W.3d 430, 452 (Tex. 2012)). The fact that many statutes include words that limit the scope of

the phrase “engaged in the business of” indicates that statutes that omit those words are not so

limited. If, as the Court asserts, the common meaning of “engaged in the business of” does not

include business activities that are only “incidental” to the business or transaction, there would be

no need to limit statutes to those who are “primarily” or “principally” engaged in a particular

business, or who engage in the business “regularly” or “continuously.” Under the Court’s

construction, a statute that applies to entities that are “engaged in the business of” a particular

activity already excludes those that only “incidentally” engage in that activity. If that were true,

there would be no need for statutes to modify the phrase “engaged in the business” with terms like

“primarily,” “principally,” or “regularly,” and those terms would be meaningless and superfluous

in all the statutes that use them. Of course, we must not construe statutes in ways that render


credit . . . primarily for personal, family, or household use” (emphasis added)); TEX. OCCUP. CODE § 2352.001(3)
(defining “Dealer” as “a person engaged in the business of buying, selling, . . . or exchanging at least five vessels,
motorboats, or boat motors during a calendar year”); TEX. PARKS & WILD. CODE § 31.003(7) (defining “Dealer” as “a
person engaged in the business of buying, selling, . . . or exchanging at least five vessels, motorboats, or outboard
motors during a calendar year”).
         9
            See, e.g., TEX. FIN. CODE § 345.001(1)(C) (defining “credit card issuer” to exclude a person who is
“regularly and principally engaged in the business of lending money for personal, family, or household purposes”
(emphases added)); TEX. WATER CODE § 26.342(7)(E) (defining “lender” to include entities that are “regularly
engaged in the business of extending credit and if extending credit represents the majority of the entity’s total business
activity” (emphases added)).
                                                                8
statutory terms “meaningless or superfluous.” Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue,

271 S.W.3d 238, 256 (Tex. 2008).

        I believe we must acknowledge and respect the fact that the Products Liability Act’s

definition of “seller” includes all those “engaged in the business” of selling a product, and does

not employ limiting words like “primarily” or “regularly” or, as the Court holds today, “non-

incidentally.” The Products Liability Act thus applies to all persons “engaged in the business” of

selling a product regardless of whether their engagement in that business is a primary, regular, or

merely incidental activity. By construing “engaged in the business” to exclude those whose

relevant activities are incidental to other business activities, the Court construes the Act’s

definition of “seller” as if it included terms like “primary,” “principally,” and “regularly” when it

does not. Of course, we must not do this when construing a statute either. City of Rockwall v.

Hughes, 246 S.W.3d 621, 631 (Tex. 2008) (“[C]hanging the meaning of the statute by adding

words to it, we believe, is a legislative function, not a judicial function.”).

        Under the ordinary, common meaning of “engaged in the business” and the Act’s language,

a person is a “seller” under the Products Liability Act if the person is employed or involved (that

is, “engaged”) in a commercial enterprise for profit or gain (that is, a “business”) in which the

person distributes or places for use or consumption a product or component part into the stream of

commerce for any commercial purpose. See TEX. CIV. PRAC. & REM. CODE § 82.001(3); Engage,

Business, Doing Business, BLACK’S 10th ed. Because the Act’s definition of “seller” does not

include additional language like “primarily,” “principally,” “regularly,” or “non-incidentally,” the

question of whether the entity’s distribution or placement of the product is “incidental” in


                                                       9
comparison to its other business activities is irrelevant to determining whether it is “engaged in

the business” at issue.

B.     Second Holding: Contractors and Construction Projects

       The Court’s second, more specific holding is that “a general contractor who is neither a

retailer nor a wholesale distributor of any particular product is not necessarily a ‘seller’ of every

material incorporated into its construction projects . . . .” Ante at ___. While I agree with this

holding as worded, it merely begs the question of when a general contractor is or is not a “seller”

of a product it incorporates into a construction project. Under the Products Liability Act’s plain

language, the answer is that a general contractor is a “seller” of a product if it is “engaged in the

business of distributing or otherwise placing” the product “in the stream of commerce for use or

consumption,” and does so “for any commercial purpose.” TEX. CIV. PRAC. & REM. CODE

§ 82.001(3) (emphasis added).

       To the extent the Court suggests by this holding that the Act’s definition of “seller” applies

differently to a “general contractor” than to others who sell products, I disagree. The statutory

definition includes every “person” who is “engaged in the business,” TEX. CIV. PRAC. & REM.

CODE § 82.001(3), and the Court makes no effort to explain how the Act distinguishes general

contractors from any other “person.” Nothing in the Act or in the common meaning of “engaged

in the business of” imposes different criteria on “general contractors” than on builders,

subcontractors, retailers, or wholesalers, and nothing in the common meaning or the Act conditions

“seller” status on how the product is ultimately used.




                                                     10
        To the contrary, as discussed further below, this Court has held that the fact that the entity

is a contractor that provides services through which it incorporates the product into a construction

project does not preclude it from being a “seller” of that product. Fresh Coat, 318 S.W.3d at 899.

Under the Act’s language, any “person” (thus, any general contractor, subcontractor, retailer,

wholesaler, etc.) “who is engaged in the business of distributing or otherwise placing, for any

commercial purpose, in the stream of commerce for use or consumption a product or any

component part thereof” is a seller, regardless of how the product is used. TEX. CIV. PRAC. & REM.

CODE § 82.001(3) (emphasis added).

C.      Evidentiary Factors

        The Court identifies two facts that it believes demonstrate that Centerpoint’s placement of

trusses into the stream of commerce for commercial purposes was merely “incidental” to its

primary business obligations: (1) Centerpoint did not price the trusses to achieve a gain or profit,

ante at ___, and (2) trusses were just one of “innumerable” products that Centerpoint sold, ante at

___. In my view, because the Act does not support the Court’s incidental-sales test, these factors

(which the Act never mentions) are irrelevant to the question of whether Centerpoint was a “seller”

under the Act. And to the extent they are relevant at all, they merely demonstrate that the common,

ordinary meaning of the phrase “engaged in the business of” does not support the Court’s new

incidental-sales test.

        Regarding the Court’s first factor, nothing in the Act or the ordinary meaning of “engaged

in the business of” requires that the sale of the specific product at issue must be designed to achieve

a financial “gain” or “profit.” Under the common, ordinary meaning of the phrase, even a non-


                                                      11
profit corporation like the Salvation Army may be “engaged in the business” of selling products,

even though it is not seeking to “achieve a profit” from those sales. See, e.g., City of San Antonio

v. Salvation Army, 127 S.W. 860, 862 (Tex. Civ. App.—San Antonio 1910, writ ref’d) (noting the

Salvation Army’s legislative charter provides that the “proceeds of said business shall be devoted

to the religious, charitable, educational or missionary purposes of the Salvation Army” (emphasis

added)). The statutory definition provides no basis for excluding a non-profit or not-for-profit

organization from the Act’s indemnity provisions.

       More specifically, neither the Act nor the common meaning support the Court’s suggestion

that a party is “engaged in the business of” selling a particular product only if it seeks a “gain or

profit” from the sales of that specific product. If a hardware store, for example, decides to sell all

hammers for a price below the company’s costs, it is still “engaged in the business of” selling those

hammers. When cell-phone carriers sold iPhones below cost to attract customers into service

contracts, they were still “engaged in the business of” selling iPhones, even if their primary

business was providing cellular services and they realized no financial gain from the sales of the

phones. See Matt Scully & Scott Moritz, iPhones go from T-Mobile Loss Leader to New Source of

Cash, BLOOMBERG (Apr. 30, 2015, 6:07 PM), http://www.bloomberg.com/news/articles/2015-04-

30/t-mobile-changes-iphones-from-loss-leaders-to-source-of-finance. And when Wal-Mart sold

gasoline as a loss-leader in an effort to attract shoppers into their stores, it was still “engaged in

the business of” selling gasoline, even if it did not seek a profit or realize a gain from those sales.

See Brad Tuttle, Walmart’s New Loss Leader: Cheap Gas, TIME, (June 29, 2011),

http://business.time.com/2011/06/29/walmarts-new-loss-leader-cheap-gas. In the same way, when


                                                      12
Centerpoint sells trusses or other building materials at cost in connection with a contract to build

an apartment complex, it is still “engaged in the business of” selling those building materials. Even

under the dictionary definitions on which the Court relies, the seller need only be seeking some

“gain” or “pecuniary benefit” from the transaction as a whole to be “engaged in the business,”

even if it may not seek or “achieve a gain or profit” from the specific sale at issue.

       Regarding the Court’s second factor—that trusses were only one of “innumerable”

products that Centerpoint sold—nothing in the Act supports the Court’s reliance on this factor

either. The Act’s definition of “seller” expressly includes a person who distributes a product “for

any commercial purpose.” TEX. CIV. PRAC. & REM. CODE § 82.001(3) (emphasis added). If a

quick-lube shop whose primary business is to offer oil-change services sells oil, oil additives, oil

filters, fuel filters, air filters, windshield-wiper blades, and “innumerable” other products, the shop

is “engaged in the business” of selling each of those products, even if those sales are “incidental”

to its oil-change services and even if those services are its “primary responsibility” to its customer.

If the purpose of the sale is to provide the product in connection with the party’s services, the party

still distributes the product for a “commercial purpose,” and the Act expressly provides that any

commercial purpose qualifies. See id. If a Jiffy Lube only occasionally sells a wiper blade, a

hardware store sells only a few auger bits, an AT&T store sells only a few screen protectors, or a

Wal-Mart store only occasionally sells a Hula Hoop, they are still “engaged in the business” of

selling those products, even if the products are only one of “innumerable” other products that each

of them sells.

       The apartment project Centerpoint was constructing when Fernandez was injured was one


                                                      13
of “four or five” similar construction projects that Centerpoint had going at the time. And as the

Court itself acknowledges, it “is the nature of a general contractor’s business when it builds based

on custom designs and specifications” to provide “innumerable construction products and

materials.” Ante at ___. Under the ordinary meaning of “engaged in the business,” selling trusses

and other building materials is part of the business in which Centerpoint engaged, even if it is an

“incidental,” and not the “primary,” part. Although Centerpoint may be only “incidentally”—and

not “primarily” or “regularly”—engaged in the business of selling trusses, it is nevertheless

“engaged in the business” of selling trusses. I would apply the unambiguous statutory language

and conclude that Centerpoint is a “seller” of trusses under the Products Liability Act. TEX. CIV.

PRAC. & REM. CODE § 82.001(3).

                                                       III.
                                               Chapter 82 Precedent

         In addition to its purported reliance on the statutory text, the Court relies on our precedent

addressing the Products Liability Act to support its conclusion that Centerpoint does not qualify

as a “seller.” Although we have addressed the Act’s definition of “seller” on a number of

occasions,10 the key precedent here, the one on which both parties rely most heavily, and the one


         10
            The Court first addressed the Act’s definition of “seller” in Fitzgerald. 996 S.W.2d at 867. In that case, the
party seeking indemnity sold the manufacturer’s product but not the specific product that allegedly harmed the
plaintiffs and was thus dismissed from the suit. Id. at 865. Contesting any indemnity obligation, the manufacturer
argued that, to qualify as a “seller,” the party had to be in the “chain of distribution” of the specific allegedly defective
product. Id. We disagreed, noting that the Act “does not explicitly require that the seller be proven to have been in the
chain of distribution.” Id. at 867. We rejected the manufacturer’s interpretation because it “would have us judicially
amend the statute to add an exception not implicitly contained in the language of the statute.” Id. We laid the proper
foundation for interpreting and applying the Act by noting that only “truly extraordinary circumstances showing
unmistakable legislative intent should divert us from enforcing the statute as written.” Id.
           More recently, we acknowledged that the Act imposes “‘a new, distinct statutory duty’ of indemnification
because it is, by its terms, ‘in addition to any duty to indemnify established by law, contract, or otherwise.’” Gen.
Motors Corp. v. Hudiburg Chevrolet, Inc., 199 S.W.3d 249, 255 (Tex. 2006) (footnote omitted) (first quoting
                                                                 14
the Court addresses, is Fresh Coat, 318 S.W.3d 893. We held in Fresh Coat that a construction

contractor that installed synthetic stucco products on the exterior walls of new-build homes did

qualify as a “seller” of those products even though it purchased the products from the manufacturer

and provided all the labor and services to install the products on the homes. Id. at 899. Noting that

the Act “anticipates that a product seller may also provide services,” we concluded that

“installation services do not preclude [a company] from also being a seller.” Id.

        The Court claims that Fresh Coat is unhelpful here because the “contractor at issue in

Fresh Coat sold and installed a particular product” while Centerpoint was “a general contractor

constructing an improvement to real property.” Ante at ___. I find the Court’s attempt to

distinguish Fresh Coat to be both incomplete and unconvincing. The Court begins by noting that

the contract in Fresh Coat “required Fresh Coat to provide ‘labor, services and/or materials,

equipment, transportation, or facilities’ necessary to apply and finish the synthetic stucco.” Ante

at ___ (citing Fresh Coat, 318 S.W.3d at 899). Under the Court’s analysis in Fresh Coat, however,

there are no relevant differences between Fresh Coat’s contractual obligations and Centerpoint’s

(to provide “the construction and services required by the Contract Documents,” including “all

other labor, materials, equipment and services” necessary “to fulfill its obligations”).

        Although the Court suggests today that the Fresh Coat contract placed those products on

“equal footing” with the services while Centerpoint’s contract did not, ante at n.8, the Court placed

no value on that point in Fresh Coat. In both cases, the contract required the party to provide both


Fitzgerald, 996 S.W.2d at 866; then quoting TEX. CIV. PRAC. & REM. CODE § 82.002(e)(2)). We thus acknowledged
that our preconceptions based on common law liabilities and indemnity cannot control our construction of the Act’s
provisions. See id. at 255–57. And most recently, we recognized that the Act “broadly defines [the term] ‘seller.’”
Petroleum Sols., Inc. v. Head, 454 S.W.3d 482, 491 (Tex. 2014) (emphasis added).
                                                            15
the allegedly defective “materials” and the services to properly install them in the construction

project. Nothing in Fresh Coat suggests that the fact that Centerpoint contractually agreed to

provide other materials and services requires a conclusion that it was not “engaged in the business”

of providing the materials that were later alleged to be defective. Nor does anything in the Act

support that proposition.

        Next, the Court notes that “Fresh Coat purchased [the synthetic stucco products] from their

manufacturer and installed them pursuant to its contract with the builder.” Ante at ___ (citing Fresh

Coat, 318 S.W.3d at 895). But the Court makes no effort to explain how Fresh Coat’s installation

of the stucco products pursuant to its contract with the builder is different from Centerpoint’s

installation of the trusses pursuant to its contract with Glenmont. See ante at ___. The product at

issue in Fresh Coat was a combination of component products that the installer had to properly

combine, apply, and finish in a particular way at the time of installation. See Fresh Coat, 318

S.W.3d at 899 (explaining that the synthetic stucco system included a “base coat, mesh, and finish

coat”). Here, by contrast, Centerpoint did not rely on Trussway’s instructions to “completely or

partially assemble” the trusses because Trussway provided the trusses fully assembled. All

Centerpoint had to do was install the trusses, and as even Trussway admits, “no builder needs

instructions on putting up a truss any more than it needs to be told how to drive a nail.” In short,

Fresh Coat’s sale of the stucco products was far more “incidental” to the services Fresh Coat

provided to install the stucco products than Centerpoint’s sale of the truss was to the services it

provided to install the truss.

        Next, the Court states, “In holding that Fresh Coat was a seller, we relied in part on witness


                                                     16
testimony that the company was ‘in the business of providing [the] products combined with the

service of [the] installation.’” Ante at ___ (quoting Fresh Coat, 318 S.W.3d at 899). While the

Court correctly quotes from the Fresh Coat opinion, the Court did not find such conclusory

testimony determinative in Fresh Coat, nor could it have. See, e.g., Elizondo v. Krist, 415 S.W.3d

259, 264 (Tex. 2013) (rejecting testimony that legal malpractice resulted in reduced settlement as

conclusory and mere ipse dixit); Nat. Gas Pipeline Co. of Am. v. Justiss, 397 S.W.3d 150, 161

(Tex. 2012) (rejecting property owner’s valuation testimony as conclusory and speculative). While

the testimony may have been worth noting, it was meaningless in the absence of evidence

supporting that conclusory assertion. Here, the evidence established that Centerpoint was engaged

in the business of selling trusses even if no witness expressly stated that it was.

       Finally, the Court simply concludes that, in Fresh Coat, “we were not required to consider

how and if the analysis would be affected when the person seeking seller status were a general

contractor constructing an improvement to real property.” Ante at ___. But Fresh Coat was also a

contractor constructing an improvement to real property, and nothing in the Act’s definition of

“seller” or in our opinion in Fresh Coat supports the Court’s conclusion that general contractors

should be treated differently from any other contractor, person, or entity.

       The Court’s discussion of Fresh Coat is unconvincing, but what the Court does not say

about Fresh Coat is even more illuminating. The Court makes no effort to distinguish or analogize

Fresh Coat in light of the incidental-sales test it adopts and applies today. That is because the

Court did not apply any incidental-sales test when it applied the Act’s plain language in Fresh

Coat. The Fresh Coat Court never considered whether the contractor’s obligation to provide the


                                                     17
product was “primary” or “incidental,” never discussed whether the contractor derived its “profits”

or “gains” from its products sales or its installation services or both, and never mentioned whether

the contractor sold products other than those alleged to be defective. See Fresh Coat, 318 S.W.3d

at 899. Those questions, which the Court finds determinative in today’s case, do not appear in the

Act and thus were simply not relevant to the Court’s conclusion that Fresh Coat qualified as a

“seller.”

        Instead, when the Fresh Coat Court addressed the specific question of whether the

contractor could be a “seller,” it expressly agreed with the court of appeals’ holding in that case

that the Act’s “definition of ‘seller’ does not exclude a seller who is also a service provider, nor

does it require the seller to only sell the product.” Id. at 899 (quoting K–2, Inc. v. Fresh Coat, Inc.,

253 S.W.3d 386, 393 (Tex. App.—Beaumont 2008)). And it specifically recognized that

“homebuilders and their contractors” could seek indemnity as sellers under the Act. Id. at 898–99.

        Ultimately, the Court agrees with Trussway’s argument that, under Fresh Coat,

Centerpoint could not be a truss seller because it sold “‘construction services,’ not building

materials.” Ante at ___. But it does not explain why it believes that is an either/or proposition, as

if Centerpoint’s status as a construction-services seller precludes it from also being a truss seller.

The Court expressly rejected this very approach in Fresh Coat, holding that “the company’s

installation services do not preclude it from also being a seller.” Fresh Coat, 318 S.W.3d at 899.

Applying that holding here, Centerpoint, like Fresh Coat, was “engaged in the business” of

distributing the trusses it undeniably sold, and is therefore a “seller” under the Act even though it

also provided services.


                                                      18
                                                        IV.
                                               Strict-Liability Cases

         Ultimately, the Court relies not on our own applicable decision in Fresh Coat but on other

courts’ decisions addressing the issue of whether a service provider is a “seller” of products under

common-law strict-liability principles. This case, however, presents the issue of who is a seller

under the Products Liability Act, not who is a seller under common-law strict-liability principles.

I believe it is unnecessary and imprudent to address the difficult and complicated common-law

issue that this case does not raise.

         The common-law principle and the Act’s indemnity provisions address two separate but

related issues. Under the common law, “the seller of a defective product is subject to strict liability

for damages the product causes even though the defect was not his fault, but he is generally entitled

to indemnity from the manufacturer by statute and by common law.” SSP Partners v. Gladstrong

Invs. (USA) Corp., 275 S.W.3d 444, 446–47 (Tex. 2009) (footnote omitted). The cases on which

the Court relies address whether and when a party that provides or distributes a product in

connection with its service is considered to be a “seller” that is strictly liable for any defect in the

product under the common law. This is an issue that has been the subject of extensive discussion

and debate throughout the country for many years. See, e.g., William C. Powers, Jr., Distinguishing

Between Products and Services in Strict Liability, 62 N.C. L. REV. 415 (1984).11



         11
            In his article published more than thirty years ago, President Powers explained that one rationale for
imposing strict liability is the recognition that plaintiffs often lack access to the evidence necessary to prove the facts
that would allow them to recover under fault-based liability theories. Id. Powers proposed that courts should decide
whether the defendant in a “hybrid product-service case[]” is a “seller” subject to strict liability by inquiring “whether
it is the type of case that evokes the proof rationale of strict products liability.” Id. at 430. In his view, many
transactions that involve the provision of both products and services “can be classified themselves fairly easily as
product or service” based on the proof rationale. Id. at 431. If a plumber who installs a water heater is sued, for
                                                                19
         As the Court notes, other courts have held, at least generally, that a service provider that

also distributes products is not a “seller” subject to strict liability under the common law if:

             the sale of the product was only “incidental” to the service contract and the
              provider only “occasional[ly]” sold the products at issue, Barham, 803 S.W.2d
              at 738;

             the provider does not place the product in the stream of commerce, Peterson
              Homebuilders, Inc. v. Timmons, No. 14-03-00400-CV, 2004 WL 1660936, at
              *5 (Tex. App.—Houston [1st Dist.] July 27, 2004, no pet.) (mem. op.)
              (concluding without discussion that a subcontractor who built a foundation pad
              for a house “did not place this structural pad in the stream of commerce”);

             the provider simply “used” the product when constructing a project, Maack v.
              Res. Design & Constr., Inc., 875 P.2d 570, 581 (Utah Ct. App. 1994) (holding
              that a subcontractor was not a seller because it “simply utilized these component
              parts when constructing the residence—they were not in the business of selling
              stucco, adhesives, or membranes on a wholesale or retail basis”); or

             the product becomes an integral part of the building being constructed,
              Calloway v. City of Reno, 993 P.2d 1259, 1272 & n.5 (Nev. 2000) (holding that
              a contractor who merely installs products as part of a construction project “is
              not engaged in the business” of selling the products and therefore not a seller
              subject to strict liability).

         We rejected some of these very reasons in Fresh Coat when we specifically held that the

Act does not exclude those that provide construction services from being a “seller,” even when the

product is used in and incorporated into a building project. Fresh Coat, 318 S.W.3d at 899. Instead


example, a claim asserting “defective installation might be considered a service, since [the installation] occurred at a
location accessible to the consumer after he had selected the plumber.” Id. at 430. A claim asserting a “defect in the
water heater, however, would subject the consumer to the obstacles of proof that make product injuries special, and
might therefore be governed by strict liability,” so “the plumber would be treated like a [seller] of a defective product.”
Id. Even in cases that involve “homogeneous transactions” implicating both a product and a service, he suggested “a
court might distinguish between causes of an injury that are local and contemporaneous (such as failure to rectify a
sagging transmission line) and those that are remote and ancient (such as engineering studies concerning the location
of water wells).” Id. at 432. In his view, “the proof rationale at least provides courts with a co-herent, workable
method of analyzing cases that are on the border between products and services.” Id.


                                                                20
of relying on those extra-jurisdictional cases, I find better guidance in this Court’s own decisions.

         First, in Barbee v. Rogers, 425 S.W.2d 342, 346 & n.3 (Tex. 1968), the Court addressed

whether an optometrist was a “seller” of contact lenses subject to strict liability under the common

law. In answering that question, the Court focused on the plaintiff’s allegations to determine

whether he alleged that his injuries resulted from defective optometry services or a defective

product. Id. at 346. The Court concluded that the optometrist could not be strictly liable as a seller

because the plaintiff in that case attributed the injury not “to the product itself, i.e., the contact

lenses, but to the professional and statutorily authorized act of ‘measuring the powers of vision’

of [the plaintiff’s] eyes and ‘fitting lenses . . . to correct or remedy . . . (his) defect or abnormal

condition of vision.’” Id. (alterations in original). In short, the alleged “miscarriage, if such there

was, rests in the professional acts of Respondents and not in the commodity they prescribed,

fitted[,] and sold.” Id. Because the plaintiff complained not of “the act of one selling a ‘product in

a defective condition unreasonably dangerous to the user,’” but instead complained of “the act of

one deemed in law to have the competence to remedy a visual defect by furnishing particularly

prescribed contact lenses,” the Court concluded that the optometrist was not a seller subject to

strict liability in that case. Id. Under the Court’s reasoning in Barbee, if the plaintiff had alleged

that the contact lenses were defective, rather than the optometrist’s services, the optometrist would

have been a “seller” subject to strict liability even though the sales were incidental to the

defendant’s optometric services.12


         12
           The Court rejects Barbee as authority because the Court did not expressly state in that case that the
optometrist would have been a seller if the plaintiff had asserted product-liability claims against the optometrist, and
because the Court “simply did not conduct” the incidental-sales analysis that it adopts and applies today. Ante at ___.
The relevance of Barbee, however, is exactly that: in a common-law strict-liability context, the Court did not apply
                                                               21
         Second, our more recent decision in New Texas Auto Auction Services, L.P. v. Gomez de

Hernandez, 249 S.W.3d 400 (Tex. 2008), confirms that a party whose business involves

transferring ownership of a product from itself to another party is a “seller” subject to strict liability

under the common law. Id. at 404. The issue in New Texas Auto was whether an auctioneer that

facilitated the sale of an allegedly defective automobile was a seller subject to strict liability under

the common law. 249 S.W.3d at 401–02. In holding that the auctioneer was not such a seller, the

Court noted that businesses that “play only an incidental role in a product’s placement” (as

opposed to the Court’s holding that businesses that only engage in “incidental” sales of the

product) are not sellers, and that strict liability “applies to those whose business is selling, not

everyone who makes an occasional sale.” Id. (first emphasis added). We reached that conclusion,

however, not because auctioneers are not “engaged in the business” of selling, but because



the incidental-sales test the Court applies today, but focused instead on the plaintiff’s allegations against the
optometrist. Barbee, 425 S.W.2d at 346. Similar to the approach President Powers advocated, see supra note ___, the
Court noted that the optometrist’s business involved both the provision of optometry services and “a merchandising
concern,” Barbee, 425 S.W.2d at 345, and concluded that the optometrist was not a seller subject to strict liability in
that particular case because the alleged liability was “not premised on any defect in the lenses as such” but on the
services the optometrist provided, id. at 346.
          As the following discussion of the Restatement’s principles explains, this “proof rationale,” based on the
nature of the plaintiff’s allegations against the party seeking indemnity, may answer the Court’s illustration regarding
hair salons and products. See ante at n.7. While the Court apparently doubts that we would hold that a hair stylist can
be strictly liability as a seller of the products used when providing hair-styling services, our decision in Barbee,
President Powers’ proof rationale, and the Restatement all suggest that the law should hold the stylist liable if, for
example, the customer alleges that the product was defectively designed or manufactured and damaged her hair or
scalp. On the other hand, if the customer alleges that the product was defective because the stylist improperly used or
applied it, these authorities suggest that we should not subject the stylist to strict liability as the product’s seller.
However we might decide that issue, the Court’s illustration demonstrates why the Court should not rely on common-
law strict-liability cases from other courts and jurisdictions to decide whether Centerpoint is a seller under the Products
Liability Act, because for these purposes the Legislature has already decided that issue. The day may come when we
must reconsider Barbee’s approach to deciding whether a service provider is subject to common-law strict liability as
a seller of products provided in connection with its services. This, however, is not that day. As for whether the hair
stylist would be a seller entitled to statutory indemnity under the Products Liability Act, we must at least agree that
only the Act itself must provide the answer.

                                                                22
auctioneers generally do not sell at all. Id. at 404–05. “Auctioneers are usually neither buyers nor

sellers, but agents for both.” Id. at 401. Although “they are obviously engaged in sales,” we

explained, “the only thing they sell for their own account is their services; the items they auction

are generally sold for others.” Id. at 402 (emphasis added). The distinction we recognized in New

Texas Auto between a “seller” and an auctioneer was in the fact that auctioneers are not “engaged

in the business of selling or otherwise distributing products” because an auctioneer neither

“transfers ownership” nor “provides the product.” Id. at 404 (quoting RESTATEMENT (THIRD) OF

TORTS § 1 (AM. LAW. INST. 1998)). A seller, in other words, is one who passes title from itself to

another, not one who assists with or facilities such a transaction for another. Id. at 404–05.

       Once the Court identified that distinction in New Texas Auto, it then noted that the

auctioneer in that case had in fact “actually held title to the [allegedly defective automobile] when

it was finally sold at auction.” Id. at 405. Thus, that auctioneer was in fact the “seller” in that

particular transaction. See id. But “it was undisputed that [the auctioneer] normally never took title

to the cars it auctioned, and did so here only because an arbitrator ordered it to do so.” Id. Because

sellers subject to strict liability are “those whose business is selling, not everyone who makes an

occasional sale,” the Court concluded that the auctioneer in that case was not subject to strict

liability even though it actually sold the vehicle in that case. Id. at 405–06. The Court reached that

conclusion not because the sale in that case was only “incidental” to the auctioneer’s services, but

because the auctioneer “normally never” engaged in such sales at all. Id. at 404–05.

       In discussing these principles in New Texas Auto, the Court relied heavily on the

Restatement (Third) of Torts. The Restatement supports the proposition that a service provider that

also distributes products can be a “seller” subject to strict liability under the common law. It begins

                                                      23
with the unremarkable principle: “Services, even when provided commercially, are not products.”

RESTATEMENT (THIRD) OF TORTS: PRODS. LIAB. § 19 (1998). But it rejects the notion that one who

provides a service is not a seller of products used in the provision of the service. To the contrary,

the Restatement explains, “When a building contractor sells a building that contains a variety of

appliances or other manufactured equipment, the builder, together with the equipment

manufacturer and other distributors, are held as product sellers with respect to such equipment

notwithstanding the fact that the built-in equipment may have become, for other legal purposes,

attachments to and thus part of the underlying real property.” Id. § 19 cmt. e.

       Thus, for example, “one who contracts to inspect, repair, and maintain machinery owned

and operated by another is the provider of a product-related service rather than the provider of a

product.” Id. § 19 cmt. f. However, if “a product repairer replaces a worn-out component part with

a new part, the replacement constitutes a sale of the part . . . .” Id. And one “sells or otherwise

distributes a product when, in a commercial transaction, one provides a combination of products

and services and either the transaction taken as a whole, or the product component thereof,”

constitutes a commercial sale or distribution of the product. Id. § 20(c). When a service-provider

sells or provides a product that is “consumed or permanently transferred to the customer” in

connection with the service, “the transaction ordinarily is treated as a sale of the material that is

consumed in providing the service,” and this is true “[e]ven when the service provider does not

charge the customer separately” for the product. Id. § 20 cmt. d. In short, as we noted in Fresh

Coat, the Restatement “recognizes that a product seller may also provide services.” 318 S.W.3d at

899.




                                                     24
       Ultimately, however, the Court need not and should not decide in this case whether

Centerpoint was a “seller” subject to strict liability under the common law. The issue before us is

whether Centerpoint is a “seller” who is entitled to indemnity under the Products Liability Act.

The Court appears to equate the two today. See ante at n.5 (suggesting that “by arguing that it is a

seller for statutory-indemnity purposes, Centerpoint is essentially conceding that it would be a

seller for purposes of a strict-liability claim brought by an injured party”). As we noted in New

Texas Auto, however, the Products Liability Act “was not intended to replace [the Restatement] or

the common law except in limited circumstances[, and] its broad definitions were drafted to

provide indemnity for all retailers, even if they are not proper defendants in an underlying products

claim.” 249 S.W.3d at 405 (citing Fitzgerald, 996 S.W.2d at 867 (holding defendant who did not

sell product that injured plaintiff was nevertheless entitled to indemnity)).

       For these reasons, the Court’s reliance on other courts’ decisions addressing the common-

law strict-liability question is unconvincing, not only because they address the common-law

question, but also because they are inconsistent with this Court’s own prior decision in Barbee and

the Restatement’s guidance. Ultimately, however unclear and unsettled the common-law question

may be in Texas or throughout the country, the question before us is not what the common law

should be, but what Texas statutory law is. Even if the Court desires to limit the scope of the

Product Liability Act’s definition of “seller,” we must apply the Act as written in this case, not

announce common-law principles. “[A]s with any statute, we begin with the text,” City of DeSoto

v. White, 288 S.W.3d 389, 395 (Tex. 2009), and when “the statute’s language is unambiguous and

does not lead to absurd results, our search also ends there: ‘Where text is clear, text is

determinative.’” Tex. Adjutant Gen.’s Office v. Ngakoue, 408 S.W.3d 350, 362 (Tex. 2013)


                                                     25
(quoting Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009)). In short, the

statutory definition—and “only” that definition—should control our decision in this case.

Needham, 82 S.W.3d at 318.

                                               V.
                                            Conclusion

       As part of its regular business for financial gain, Centerpoint contracted to transfer title of

an allegedly defective truss from itself to Glenmont. It was thus a seller of the truss and not merely

a facilitator of the sale. And making such sales was a regular part of the business in which

Centerpoint was engaged. The summary judgment evidence in this case conclusively established

that Centerpoint was “engaged in the business of distributing or otherwise placing” trusses “in the

stream of commerce for use or consumption” and for a “commercial purpose.” TEX. CIV. PRAC. &

REM. CODE § 82.001(3). It was thus a “seller” under the Product Liability Act’s plain language.

       Of course, the Legislature could have defined the term “seller” to include only those who

are “primarily” engaged in the business of distributing an allegedly defective product, who do not

make such sales only “incidentally” as part of other business activities, who price the product to

“achieve a profit” or “gain,” or who do not sell “innumerable” other products in conjunction with

the provision of a service. But it did not. Because the Court concludes that Centerpoint was not a

seller when the Products Liability Act plainly says that it was, I respectfully dissent.



                                                      _____________________
                                                      Jeffrey S. Boyd
                                                      Justice

Opinion delivered: June 17, 2016


                                                     26
