                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-11-00062-CV

TUTLE & TUTLE TRUCKING, INC.,
                                                           Appellant
v.

EOG RESOURCES, INC.,
                                                           Appellee


                           From the 18th District Court
                              Johnson County, Texas
                            Trial Court No. C2010-0679


                           DISSENTING OPINION

      After studying this several different times, I have concluded that, based on what

is briefed, I would have to reverse due to lack of evidence to conclusively establish the

second predicate fact, that the indemnity agreement is common to the industry (which

may include which industry, oil and gas, or sand and gravel). The only basis the Court

relies upon to support this factual determination is that the provision appears in one

other reported case, a federal case from North Dakota (see Maj. Op. footnote 4). But

that case involved the same party, EOG. Contrary to the Court’s conclusion, I think the

fact that this type provision shows up nationally in only one other case and that case
involved the same company is a clear indication the provision is not widely used in the

industry.

        I also think EOG, and the Court, has misapplied the concept of a judicial

admission to the other predicate fact needed for the concept to apply. A statement in a

pleading is an admission, but it can be controverted. It is a binding judicial admission

only if it is a factual allegation in a live pleading and there is no unobjected-to evidence

contrary to the allegation in the summary judgment record.

        In any event, it appears that conflicting evidence may have been offered on the

issue of whether the employee was injured in the process of transporting bulk dry

material.

        For either of these reasons, the result would at least be a reverse and remand for

fact development.

        But I have some issue with paragraph 6E, the pass through provision, as well. I

think the issue here is very wide open, especially in Texas. If 6E has to meet the Express

Negligence or the fair notice doctrine – it fails; particularly since the pass through

provision EOG is relying upon is buried at the end of a provision that does nothing to

highlight it and addresses another topic as well.

        Further it seems to be a very unusual provision in that it essentially provides

“you agree to indemnify me for anything I have agreed with another contractor for

which to indemnify them.” You probably cannot bury another company’s agreement to

indemnify for an act of negligence much deeper than that.



Tutle & Tutle Trucking, Inc. v. EOG Resources, Inc.                                   Page 2
        But I am not at all sure that the doctrine applies, because it is an indemnity of

contractual indemnity, which may include a negligence claim but at the pass through

level is only a contract claim.

        This case also seems to potentially have some huge policy implications in it that I

do not understand. Specifically, how workers compensation coverage and limits on

recovery will be implicated, if at all. Does this now pit a workers compensation carrier

against a general liability carrier?

        For the foregoing reasons, I respectfully dissent to the judgment of the Court to

the extent it does not reverse the trial court’s judgment and remand the proceeding to

the trial court for further development.1



                                                TOM GRAY
                                                Chief Justice

Dissenting opinion delivered and filed November 15, 2012




1Recognizing that I have not garnered a second vote for my position, I have provided this quite informal
dissent rather than delay the ultimate disposition of this proceeding. See In the Interest of S.A.P., 135
S.W.3d 165, 177 (Tex. App.—Waco 2004) (Gray, C.J., dissenting), rev'd and remanded, 156 S.W.3d 574 (Tex.
2005).


Tutle & Tutle Trucking, Inc. v. EOG Resources, Inc.                                               Page 3
