
In The


Court of Appeals


Ninth District of Texas at Beaumont


____________________


NO. 09-03-596 CV

____________________


SPAWGLASS, INC. AND SPAWGLASS CONSTRUCTION

CORPORATION, Appellants 


V.


E.T. SERVICES, INC., Appellee




On Appeal from the 221st District Court
Montgomery County, Texas

Trial Cause No. 04-01-00519-CV




OPINION
	This case involves the application of the "express negligence rule" to an indemnity
contract between a contractor and a subcontractor.  The contract provided "Subcontractor
agrees to . . . indemnify Contractor . . . against and for all liability . . . and damages
which Contractor may . . . become liable for by reason of any . . . injuries . . . to . . . the
workmen of either party . . . in any matter arising out of or resulting from Subcontractor's
performance . . . hereunder, . . . including, but not limited to, any negligent act or
omission . . . of Contractor. . . ."  One of the subcontractor's workers sued the contractor
for negligence, and the contractor filed a third-party claim against the subcontractor.  The
trial court granted summary judgment for the subcontractor.  We hold that the intent
expressly stated within the four corners of the contract exculpates the contractor from the
consequences of its own negligence that resulted in injury to the subcontractor's worker. 
We also hold that, because the worker was injured while performing work for the
subcontractor, the claim arises out of the performance of the contract.  We further hold
that the contractor is entitled to indemnity from the subcontractor.  Accordingly, we
reverse the summary judgment and remand the cause to the trial court for further
proceedings consistent with this opinion.
	When, as here, both sides move for summary judgment and the trial court grants
one motion and denies the other, the reviewing court reviews the summary judgment
evidence presented by both sides and determines all questions presented.  Commissioners 
Court of Titus County v. Agan, 940 S.W.2d 77, 81 (Tex. 1997).  If the issue raised is
based upon undisputed and unambiguous facts, we may determine the question presented
as a matter of law.  Gramercy Ins. Co. v. MRD Invs., Inc., 47 S.W.3d 721, 724 (Tex.
App.--Houston [14th Dist.] 2001, pet. denied).  If resolution of the issues rests on disputed
facts, however, we reverse and remand for further proceedings.  Coker v. Coker, 650
S.W.2d 391, 394-95 (Tex. 1983).  
	Under the terms of the contract between contractor SpawGlass Construction
Corporation and subcontractor E.T. Services, Inc. ("ETS"), ETS agreed to perform
structural steel erection for SpawGlass Construction Corporation at the Caney Creek High
School.  Brian Sanders, an ETS employee working as a connector welder, avers that he
was rolling up an oxygen hose when he was struck by a three by six foot piece of plywood.
The appellee's motion for summary judgment alleges that a gust of wind blew the plywood
off of the roof during a sudden storm.  Sanders sued SpawGlass Construction Corporation
and SpawGlass, Inc. (collectively "SpawGlass") (1) for negligence, and SpawGlass sought
indemnity from ETS.  ETS and SpawGlass filed cross-motions for summary judgment. 
The trial court denied the SpawGlass motion, granted the ETS motion, and severed the
third-party claim from the main suit.  On appeal, SpawGlass contends the contract clearly
and unambiguously requires ETS to indemnify Spawglass for claims of injury to ETS's
workers attributable to SpawGlass's negligence.  ETS, on the other hand, contends the
indemnity provision is ambiguous and that the indemnity applies only to injuries resulting
from ETS's performance. 
	The express negligence rule requires that the intent of the party seeking indemnity
from the consequences of that party's own future negligence must be expressed in
unambiguous terms within the four corners of the contract.  Ethyl Corp. v. Daniel Constr.
Co., 725 S.W.2d 705, 708 (Tex. 1987).  The indemnity clause in this case derives from
a clause the Supreme Court held was enforceable under the express negligence doctrine. 
See Atlantic Richfield Co. v. Petroleum Personnel, Inc., 768 S.W.2d 724, 726 (Tex. 
1989). (2) To distinguish its agreement to indemnify SpawGlass from the Atlantic Richfield
indemnity, ETS relies on the additional language contained within the contract's
responsibility-shifting provision.  To the Atlantic Richfield language "including, but not
limited to, any negligent act or omission" of the indemnified party, the contract in this case
added words "or claim involving strict liability or negligence per se of" SpawGlass.  The
addition of this phrase, the appellee contends, makes the indemnity clause ambiguous.  We
disagree.  The language contained in a contract is accorded its plain grammatical meaning
unless to do so would defeat the parties' intent.  See DeWitt County Elec. Co-op. v. Parks,
1 S.W.3d 96, 101 (Tex. 1999).  The drafter did not separate "any negligent act or
omission or claim involving strict liability" from "or negligence per se of Contractor," and
the subject phrase "any negligent act or omission" makes sense only in conjunction with
the prepositional phrase "of Contractor or Owner."  We conclude that the indemnity clause
in this contract satisfies the express negligence rule.  
	The appellee argues that, "regardless of whether the provision meets the express
negligence test, indemnity does not apply because the circumstances of the incident did not
trigger the indemnity provision."  ETS contends that indemnity may only be triggered if
the incident arose out of its performance, not its mere presence on the site.  ETS relies on
two cases that pre-date Ethyl and the adoption of the express negligence test.  See Sun Oil
Co. v. Renshaw Well Serv., Inc., 571 S.W.2d 64 (Tex. Civ. App.--Tyler 1978, writ ref'd
n.r.e.), and Westinghouse Elec. Corp. v. Childs-Bellows, 352 S.W.2d 806 (Tex. Civ.
App.--Fort Worth 1961, writ ref'd).  The contracts in those cases included some language
similar to that found in the ETS/SpawGlass contract, but lacked the express inclusion of
negligent acts or omissions of SpawGlass found within the indemnity undertaken by ETS. (3)
 
In this case, the worker was allegedly injured in the performance of ETS's work under the
SpawGlass contract.  The contract expressly provided that ETS would indemnify
SpawGlass against liability for SpawGlass's negligent act that injured ETS's worker. 
Although the appellee contends that the injury arose from SpawGlass's performance
completely unrelated to the work ETS and its worker were hired to perform, the
contractor, the subcontractor, and the worker were all engaged in the construction of a
high school auditorium. 
	In its motion for summary judgment, ETS contended that Sanders's injury did not
arise out of ETS's performance of its contractual duty to erect steel because Sanders "was
standing under cover when a storm began."  The factual basis for this allegation is not
established by the summary judgment record, which includes discovery responses in which
Sanders maintains that he was rolling up oxygen hose when struck by the sheet of
plywood.  Therefore, the trial court could not have granted summary judgment for ETS
on that ground.
	The contract between the parties expressly stated that ETS would indemnify
SpawGlass from the consequences SpawGlass's own negligence that resulted in injury to
ETS's worker.  The claim asserted by Brian Sanders arises out of the performance of
ETS's contract with SpawGlass.  Therefore, the trial court erred in dismissing the
appellants' third-party claim against the appellee.  We reverse the summary judgment and
remand the cause to the trial court for further proceedings consistent with this opinion.
	REVERSED AND REMANDED.

								PER CURIAM


Submitted on July 2, 2004
Opinion Delivered August 26, 2004

Before McKeithen, C.J., Burgess and Gaultney, JJ.	


APPENDIX






CONTRACTOR [PPI] agrees to hold harmless
and unconditionally indemnify COMPANY
[ARCO] 




against and for all liability, cost, expenses,
claims and damages 


which [ARCO] may at any time suffer or sustain
or become liable for by reason of any accidents,
damages or injuries either to the persons or
property or both, of [PPI], or of the workmen of
either party, or of any other parties, or to the
property of [ARCO], 

in any matter arising from the work performed
hereunder, 
 



including but not limited to any negligent act or
omission of [ARCO], its officers, agents or
employees. . . .  (emphasis added)
Indemnity for Personal Injury and Property
Damage
INDEMNITY.  To the fullest extent permitted by
law, 

Subcontractor agrees to defend, hold harmless
and unconditionally indemnify Contractor and
Owner, their officers, directors, shareholders,
employees, agents, Contractor's surety and all
parties whom Contractor is required to indemnify
pursuant to the terms of the Contract Documents, 

against and for all liability, costs, expenses,
claims, liens, citations, penalties, fines,
attorney's fees, losses, and damages 

which Contractor may at any time suffer or
sustain or become liable for by reason of any
accidents, damages or injuries either to the
persons or property or both of Subcontractor,  or
the workmen of either party, or of any other
parties, or to the property of Contractor, 

in any matter arising out of or resulting from
Subcontractor's performance or failure to
perform hereunder, or failure or defects of
materials or goods supplied by or on behalf of
Subcontractor, 

including, but not limited to,  any negligent act or
omission or claim involving strict liability or
negligence per se of Contractor or Owner, their
officers, directors, shareholders, employees,
agents, Contractor's surety and all parties whom
Contractor is required to indemnify pursuant to
the terms of the Contract Documents.

The coverage of any insurance policy required
herein or actually carried by Subcontractor shall
not limit the extent of Subcontractor's liability
under the foregoing indemnity.




1. 

  We decide this appeal as though the two parties were a single entity because
neither the briefs nor the documents filed in the appellate record distinguish between these
two parties.  
2. 

  The appendix to this opinion illustrates the similarities and differences between
the SpawGlass contract and the Atlantic Richfield contract through a side-by-side
comparison of the two indemnity paragraphs. The Atlantic Richfield contract appears in
the left column; the corresponding parts of the ETS/SpawGlass agreement appear in the
right column.  
3. 

 The contract in Sun Oil, 571 S.W.2d at 66, stated:
	INDEMNITY: Contractor (Renshaw) agrees to protect, defend, indemnify
and hold Sun and the employees of Sun free and harmless from and against
any and all claims, demands and causes of action of every kind and character
(except underground damage) arising out of, incident to, or in connection
with this agreement or performance of work or services hereunder or breach
of the terms hereof, regardless of whether the liability therefor is based upon
some alleged act or omission of Sun or of Contractor or of some third or
other party, and including without limitation by enumeration all taxes,
claims, debts, fines, penalties, forfeitures, patent infringements, loss of use,
death, injury and damages to all persons and property, together with the
amount of judgments, penalties, interest, court costs, legal and other fees
and expenses in connection therewith.  With respect to liability based upon
some alleged act or omission of Sun or some such third or other party, not
an agent or subcontractor of Contractor, this indemnity shall be limited to the
kinds and amounts of insurance Contractor agrees to carry under this
Contract and Services Agreement, or such greater amounts as Contractor
does in fact carry.
 
	The contract in Westinghouse Electric, 352 S.W.2d at 807-08, stated:
		Subcontractor agrees to perform the Work in a good and workmanlike
manner and in accordance with the provisions of the General Contract, and
with the provisions of this Subcontract and in accordance with all safety rules
and regulations set forth in the General Contract, or issued by Contractor,
and in accordance with any and all laws, rules or regulations issued by any
governmental authority having the authority to control the manner or method
of carrying out the Work.  Subcontractor further agrees that if the property
of any person, firm or corporation, including that of Contractor, is lost,
damaged, or destroyed while on the job site and such loss, damage or
destruction is caused by, results from, or arises out of, the doing, or the
method or manner of performance of the Work, or, is due to or results from,
or arises out of, the failure of Subcontractor to do, or Subcontractor's
omission to do, anything in connection with the Work, or required by this
Subcontract, Subcontractor shall indemnify and save harmless Contractor
from any and all such loss, damage or destruction.  Subcontractor further
agrees to and shall indemnify and save harmless Contractor from and against
any and all loss, claim, demand, and suit for damage, including death and
personal injury, growing out of, or incident to or resulting from the
performance, or failure to perform the Work or the provisions of this
Subcontract.


 
