Energy Service Co. of Bowie, Inc. v. Superior Snubbing Services, Inc.
Energy Service Co. of Bowie, Inc. v. Superior Snubbing Services, Inc.
Opinion of the Court
delivered the opinion of the Court,
Since 1963, the Texas Workers’ Compensation Act has provided that a
Petitioner Energy Service Company of Bowie, Inc. and respondent Superior Snubbing Services, Inc. both provided oilfield services to Mitchell Energy Corporation. In 1996, Superior and Mitchell signed an industry-standard “Master Service Agreement”, which provided in part that they would indemnify each other and each other’s contractors against their respective employees’ personal injury claims arising out of work performed under the Agreement or at the jobsite, even if the indemni-tee was at fault.
Superior’s employee, Daryll Faulk, sued Mitchell and Energy for injuries he suffered in 2000 while working at a Mitchell
The court of appeals reversed and rendered judgment for Superior. It noted that before the Workers’ Compensation Act was completely revised in 1989, the predecessor provision to section 417.004 stated that a subscribing employer could not be liable to indemnify a person against an employee’s personal injury claim “in the absence of a written agreement expressly assuming such liability, executed by the subscriber prior to such injury or death.”
We granted Energy’s petition for review to determine whether the Legislature intended, as part of its 1989 overhaul of the Workers’ Compensation Act, to make a substantive change in the 26-year-old provision that is now section 417.004.
The Legislature has directed that “[i]n interpreting a statute, a court shall diligently attempt to ascertain legislative intent and shall consider at all times the old law, the evil, and the remedy.”
Absent any identifiable reason for a substantive change to have been made in the statutory provision, or any extra-textual indication that one was intended, or any resulting change in industry practice, we think the most reasonable construction of section 417.004 is the same as its pre-1989 predecessors. In these circumstances, we think that when the Legislature required that a subscribing employer contract “with the third party” seeking indemnity, it considered that an agreement intending to cover third party beneficiaries was an agreement with the beneficiaries. The issue for us, of course, is not whether this is good policy, but whether it is what the Legislature intended by the 1989 amendments. We think it was.
This is not a situation like the one in Fleming Foods of Texas, Inc. v. Rylander, where the statutory text admitted of but one meaning, however doubtful it was that the Legislature intended it.
The dissent argues that construing the 1989 amendment to mean the same thing as the prior law deprives the added phrase, “with the third party”, of any meaning. But that argument assumes that the Legislature intended the added phrase to mean something different than existing law, when there is simply no indication that it did. In fact, the words “third party” were inserted throughout the 1989 version to serve as a shorthand substitute for the multiple word descriptions — “a person other than the subscriber” and “such other person” — used throughout the pre-1989 version. The dissent also argues that because the Legislature did not expressly include third party beneficiaries, it must have intended to exclude them. But as we have already explained, the Legislature was charged with the knowledge that the common law would ordinarily include third party beneficiaries, and thus it had no reason to reiterate what was already the law.
The dissent acknowledges that to restrict mutual indemnity obligations to signatories denies them the freedom to contract for the benefit of their contractors, but argues that this is necessary to “protect[ ] them from economic pressures”.
[T]ens of thousands of agreements have been entered into by which each party (as “indemnitor”) agrees to indemnify the other party (“indemnitee”) and the indemnitee’s contractors for claims arising from injuries to the indemnitor’s employees, regardless of fault. In other words, ... each party in the oilfield takes care of its own “slice of the risk” (claims by its own employees against the other party and its contractors or subcontractors as third party beneficiaries). In return, the indemnitor and the in-demnitor’s contractors or subcontractors receive a reciprocal indemnity from the indemnitee as third party beneficiaries (for claims by the indemnitee’s employees). This approach to risk allocation provides a level of certainty to all of the parties regarding liability exposure because each company is able to train its own employees as to safe oilfield practices, manage its performance of the work, obtain insurance, and attempt to control the scope of its liability arising out of what is usually a common workplace. Liability insurers have also written insurance coverage to accommodate such a risk allocation approach inasmuch as policies typically provide contractual liability coverage for indemnity obligations to third parties.30
* * *
Accordingly, the judgment of the court of appeals is reversed, and the case is remanded to the trial court for rendition of judgment in accordance with this opinion.
. Act of May 20, 1963, 58th Leg., R.S., ch. 437, § 1, 1963 Tex. Gen. Laws 1132 formerly Tex.Rev.Civ. Stat. Ann. art. 8306, § 3, amended by Act of May 5, 1983, 68th Leg., R.S., ch. 131, § 1, 1983 Tex. Gen. Laws 613, 614, formerly Tex.Rev.Civ. Stat. Ann. art. 8306, § 3(d) (“If an action for damages on account of injury to or death of an employee of a subscriber is brought by such employee, or by the representatives or beneficiaries of such deceased employee, or by the association for the joint use and benefit or itself and such employee or such representative or beneficiaries, against a person other than the subscriber, as provided in Section 6a, Article 8307, Revised Civil Statutes of Texas, 1925, and if such action results in a judgment against such other person, or results in a settlement by such other person, the subscriber, his agent, servant or employee, shall have no liability to reimburse or hold such other person harmless on such judgment or settlement, nor shall the subscriber, his agent, servant or employee, have any tort or contract liability for damages to such other person because of such judgment or settlement, in the absence of a written agreement expressly assuming such liability, executed by the subscriber prior to such injury or death.”).
. Act of Dec. 12, 1989, 71st Leg., 2d C.S., ch. 1, § 4.04, 1989 Tex. Gen. Laws 1, 32-33, formerly Tex.Rev.Civ. Stat. Ann. art. 8308-4.04 ("If an action for damages is brought by an injured employee, the legal beneficiary of a deceased employee, or an insurance carrier against a third party liable to pay damages for the injury or death as provided by Section 4.05 of this Act and the action results in a judgment against the third party or a settlement by the third party, the employer is not liable to the third party for any reimbursement or damages based on the judgment or settlement unless the employer executed, before the injury or death occurred, a written agreement with the third party to assume the liability.”), amended by Act of May 12, 1993, 73rd Leg., R.S., ch. 269, § 1, 1993 Tex. Gen. Laws 987, 1235, now Tex. Lab.Code § 417.004 ("In an action for damages brought by an injured employee, a legal beneficiary, or an insurance carrier against a third party liable to pay damages for the injury or death under this chapter that results in a judgment against the third party or a settlement by the third party, the employer is not liable to the third parly for reimbursement or damages based on the judgment or settlement unless the employer executed, before the injury or death occurred, a written agreement with the third party to assume the liability.”).
. 158 S.W.3d 112 (Tex.App.-Fort Worth 2005).
. Paragraph 7(b) of the "Master Service Agreement” provided: "Contractor [Superi- or] shall protect, defend, indemnify and hold
. For example, paragraph 7(c)of the Superi- or-Mitchell agreement provided: "This indemnity shall be supported by the liability insurance coverage herein required to be furnished by Contractor or such greater amount of insurance (or self-insurance) as Contractor in fact carries. Provided, however, if the work to be performed hereunder subjects this Agreement to [the Texas Oilfield Anti-Indemnity Act], Company agrees to provide insurance or self insurance in an equal amount to that provided by Contractor in support of the mutual indemnities contained herein.”
. Act of May 21, 1973, 63rd Leg., R.S., ch. 646, 1973 Tex. Gen. Laws 1767, formerly Tex. Rev. Civ. Stat. Ann. art. 2212b, §§ 3, 4(a), now, with intervening amendments, Tex Civ. Prac. & Rem.Code §§ 127.001-.007.
. 158 S.W.3d at 114-115; see supra note 2 (emphasis added).
. 158 S.W.3d at 115; Brief for Respondent 14.
. Supra note 3 (emphasis added).
. 49 Tex. Sup.Ct. J. 7 (Oct. 14, 2005).
. See generally Texas Workers’ Comp. Comm'n v. Garcia, 893 S.W.2d 504 (Tex. 1995).
. As originally introduced in the regular session of the 71st Legislature, the bill to replace the Workers' Compensation Act did not carry forward the provision regarding indemnification agreements in the prior law; the bill was silent on the subject. Tex. H.B. 1, 71st Leg., R.S. (1989). But the House added the language that is now section 417.004 by floor amendment without objection, H.J. of Tex., 71st Leg., R.S. 466 (1989), and it was included in all bills to replace the Act introduced in the first and second called sessions, Tex. H.B. 1, 71st Leg., 1st C.S. (1989); Tex. S.B. 1, 71st Leg., 1st C.S. (1989); Tex. H.B. 4, 71st Leg., 2d C.S. (1989); Tex. S.B. 2, 71st Leg., 2d C.S. (1989); Tex. S.B. 9, 71st Leg., 2d C.S. (1989); Tex. S.B. 18, 71st Leg., 2d C.S. (1989), including the Senate bill that was ultimately enacted, Tex. S.B. 1, 71st Leg., 2d C.S., 1989 Tex. Gen. Laws 1. During the regular session, after the addition of the present text on the House floor, a Senate subcommit
. E.g. Stine v. Stewart, 80 S.W.3d 586, 589 (Tex. 2002) (per curiam); MCI Telecomms. Corp. v. Texas Utils. Elec. Co., 995 S.W.2d 647, 651 (Tex. 1999); see generally Restatement (Second) of Contracts § 304 (1981) ("A promise in a contract creates a duty in the promisor to any intended beneficiary to perform the promise, and the intended beneficiary may enforce the duty.”).
. Cash Am. Int’l, Inc. v. Bennett, 35 S.W.3d 12, 16 (Tex. 2000) ("A statute that deprives a person of a common-law right will not be extended beyond its plain meaning or applied to cases not clearly within its purview. Abrogating common-law claims is disfavored and requires a clear repugnance between the common law and statutory causes of action.” (internal quotations and citation omitted)); Satterfield v. Satterfield, 448 S.W.2d 456, 459 (Tex. 1969) ("While Texas follows the rule that statutes in derogation of the common law are not to be strictly construed, it is recognized that if a statute creates a liability unknown to the common law, or deprives a person of a common law right, the statute will be strictly construed in the sense that it will not be extended beyond its plain meaning or applied to cases not clearly within its purview.”).
. Tex. Gov’t Code § 312.005.
. Generally, the Texas Oilfield Anti-Indemnity Act voids certain agreements to indemnify against liability for which the indemnitee or contractors responsible to him are at fault
. 6 S.W.3d 278, 283-284 (Tex. 1999).
. Id. at 281.
. Id.
. Id.
. Id. at 280.
. Id. at 281, 283-284.
.Id. at 283-284.
. Post at 200.
. Tex. Civ. Prac. & Rem.Code §§ 127.001-.007.
. Id. §§ 127.001(3), .005.
. Brief for Texas Oil & Gas Ass'n as Amicus Curiae Supporting Petitioners 7-8.
Dissenting Opinion
joined by Justice WAINWRIGHT, Justice GREEN, and Justice WILLETT, dissenting.
Daryll Faulk was injured while working in the course of his employment for Superior Snubbing Services, Inc. (Superior), who carried workers’ compensation insurance and thus was a “subscribing employer.” Faulk did not sue Superior for his injuries.
Energy and Superior were contractors for Mitchell. They did not execute agreements with each other, but both executed agreements with Mitchell. Their agreements with Mitchell contained indemnity provisions. As relevant to this appeal, Energy settled with Faulk and sued Superior for indemnity. Energy claimed that it was entitled to indemnity because Superior’s contract with Mitchell provided that Superior “shall protect, defend, indemnify and hold [Mitchell], its employees, partners, agents, representatives, invitees, contractors and their employees ... harmless from and against all claims, demands, causes of action, suits or other litigation of every kind and character for injury to ... [Superior], its employees, partners, agents, ... which is incident to, arising out of, within the scope of, or in connection with the work to be performed.”
Superior denied that it owed indemnity to Energy, in part, on the basis of Texas Labor Code section 417.004 and the fact that Energy had not executed an indemnity agreement with Superior. Section 417.004 provides:
In an action for damages brought by an injured employee, a legal beneficiary, or an insurance carrier against a third party liable to pay damages for the injury or death under this Chapter that results in a judgment against the third party or a settlement by the third party, the employer is not liable to the third party for reimbursement or damages based on the judgment or settlement unless the employer executed, before the injury or death occurred, a written agreement with the third party to assume the liability. (emphasis added)
I agree with the court of appeals that section 417.004 does not permit Energy to recover indemnity from Superior.
In construing a statute our objective is to determine and give effect to the Legislature’s intent, which, when possible, we discern from the words used. State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006);
In my view, the plain meaning of the words used in section 417.004, “the employer is not liable to the third party for reimbursement or damages based on the judgment or settlement unless the employer executed, before the injury or death occurred, a written agreement with the third party to assume the liability” (emphasis added), is clear and unambiguous. The phrase “the third party” is used twice in the same sentence and clearly refers to the same third party in each instance — the third party seeking indemnity. Because the words “executed ... with the third party” in the statute are clear and unambiguous, we apply the words according to their plain and common meaning without resort to rules of construction or extrinsic aids. Fitzgerald, 996 S.W.2d at 865-66; Agbor, 952 S.W.2d at 505. We should not read the statute’s words other than according to their ordinary meaning, because a contrary intention is not apparent from the context. See Taylor, 616 S.W.2d at 189. So read, the language precludes indemnity unless the third party was a signatory to the written agreement executed by the subscriber.
Further, we presume all the words in the statute were used purposely by the Legislature. See Eddins-Walcher Butane Co., 298 S.W.2d at 96. For example, the statutory provision in question formerly provided, in relevant part, that if a party other than the subscribing employer made a settlement with the injured employee, then the subscribing employer had no liability to indemnify the third party “in the absence of a written agreement expressly assuming such liability, executed by the subscriber prior to such injury or death.” See former Tex.Rev.Civ. Stat. Ann. art. 8306 § 3. The same relevant part of the current statute provides that the subscribing employer has no liability to indemnify the third party “unless the employer exe-
In a similar vein, because the words “third-party beneficiaries” do not appear in the statute, we presume they were excluded for a purpose. Cameron, 618 S.W.2d at 540. Only when it is necessary to give effect to clear legislative intent can we insert, by interpretation, additional words or requirements into a statutory provision. Id. And as the Court’s opinion demonstrates, even if we look for legislative intent beyond the statutory language itself, we find no clear legislative intent that the words “executed ... a written agreement with the third party” were intended to encompass parties not signatories to an agreement.
Nor is it “perfectly plain” that giving the statutory language its literal, plain, and common meaning works an absurdity or manifest injustice. See Gilmore, 188 S.W. at 1039. First, the statute effectively provides that parties such as Mitchell who require indemnity agreements from subscribing employers may contract only for their own right to indemnity. That concept is not absurd. It does not offend established contract presumptions. See MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 652 (Tex. 1999) (“[T]here is a presumption against, not in favor of, third-party beneficiary agreements.”); Corpus Christi Bank & Trust v. Smith, 525 S.W.2d 501, 503-04 (Tex. 1975) (noting the presumption that parties contract for themselves and not for third-party beneficiaries). And reading the statute according to its plain language, which limits a subscribing employer’s indemnity obligation, furthers the main inducement for employers to provide workers’ compensation insurance: limited exposure to common-law damage claims of an employee injured in the course of employment. See Tex. Lab. Code § 406.034; Tex. Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 510-11 (Tex. 1995); Massey v. Armco Steel Co., 652 S.W.2d 932, 933 (Tex. 1983) (noting that the Workers’ Compensation Act bars an employee’s common law action for negligence against his employer). The benefit of a subscribing employer’s immunity from claims by an injui’ed employee is diminished whenever the employer is made subject to indemnity claims for common-law damages recovered by the injured employee from third parties. Narrowing the exception to immunity to those parties with whom the employer executed a written agreement is wholly consistent with the overarching theory of workers’ compensation: immediate benefits to injured workers in exchange for employer immunity from claims. The former statute did not require the employer to have a pre-injury agreement “executed ... with the third party” before the employer could be called on for indemnity. And the 1989 amendments were not a mere recodification of prior law such as Texas statutes have been undergoing for some years.
The plain language of section 417.004 respects the freedom of subscribing employers to contract away their statutory immunity from liability, yet protects them from economic pressures to enter broad indemnity agreements contracting away them immunity as to third parties with whom the employers do not have direct contractual agreements. The effect of interpreting section 417.004 to include persons or entities who are not signatories and direct parties to the agreements means that subscribing employers signing such indemnity agreements remain in the position they were in before the 1989 amendments: having no control over whom they may be called upon to indemnify because the owner or other actual contracting party with whom the employers executed the agreements remain able to contract with any third-party contractor they desire.
In my view, the Court’s construction of section 417.004:(1) does not comport with the literal, plain meaning of the statute; (2) dilutes subscribing employers’ immunity from common-law damages claims of the employers’ injured employees which is a key concept underlying the workers’ compensation statutes; and (3) does not square with one of the main reasons for the 1989 revision of the workers’ compensation statutes — reducing costs to subscribing employers. I would hold that language in Superior’s contract with Mitchell, which requires Superior to indemnify Energy, a nonsignatory to the contract, conflicts with section 417.004 and that, to the extent of the conflict, the contractual language is invalid. I would affirm the judgment of the court of appeals.
. The Workers’ Compensation Act provides that employees of subscribing employers waive their common law claims against their employer unless the employees elect otherwise. See Tex. Lab.Code § 406.034(a).
. Tex. Civ. Prac. & Rem.Code §§ 127.001-.007.
. This case does not require us to interpret the language of section 127.006. Superior responds to Energy’s argument by positing that statutory abrogation of certain common-law claims an employee might otherwise have against a subscribing employer is a benefit to the employer. Energy points to the definition of “benefit” in the Workers' Compensation Act to argue that it is not.
Reference
- Full Case Name
- ENERGY SERVICE COMPANY OF BOWIE, INC., Petitioner, v. SUPERIOR SNUBBING SERVICES, INC., Respondent
- Cited By
- 66 cases
- Status
- Published