In the recently concluded 2015 session, the Texas Legislature amended the anti-indemnity statute pertaining to engineers and architects performing work for certain types of governmental entities. The amendment prohibits a governmental entity from requiring an engineer or architect to defend it for claims based in whole or in part on the fault, breach or negligence of the governmental entity. The purpose of the amendment is to prevent governmental entities from requiring architects and engineers to muster a defense that otherwise falls outside of their professional liability insurance policies. The impacted governmental entities include municipalities, counties, school districts, conservation or reclamation districts, hospital districts or other political subdivisions of the state. The Governor signed the Bill on June 17, 2015 and the amended statute is effective September 1, 2015. The modified anti-indemnity provision, Texas Local Government Code section 271.904, splits out an architect’s and engineer’s indemnification and defense obligations, allows a governmental entity to seek recovery of attorney’s fees in proportion to the design professional’s liability, and imposes a statutory standard or care for design
The Texas Supreme Court in Abutahoun, Individually and as Representative of the Estate of Henderson v. Dow Chemical, No. 13-0175 (May 8, 2015) issued a new opinion which addressed the previously unknown area of what exposure a property owner has for injury to an independent contractor due to the active negligence of the property owner. Under Texas Civil Practice & Remedies Code Chapter 95, a property owner is immune for liability for injuries to an independent contractor working on the property unless the property owner controls the work of the independent contractor and had actual knowledge of the dangerous condition. This doctrine generally insulates a property owner having construction performed on its property when an independent contractor was injured while performing their work. This case presented a different issue, wherein the injury caused to the independent contractor was not due to his own work, but rather was caused by some other negligent activity of the property owner. In this case, Dow Chemical contracted with Henderson’s employer to perform insulation work on the piping system in 1967-68.
The Texas Supreme Court has recently held that the State’s sovereign immunity does not extend to contractors who contract with the government to perform construction services. Brown & Gay Engineering, Inc. v. Olivares, No. 13-0605 (April 24, 2015) concerned a wrongful death case in which the Olivares family sued the Fort Bend County Tollway Authority for an accident that they claim was caused because of design errors in the construction of an exit ramp, which allowed a drunk driver to enter the tollway going the wrong way where he struck and killed Pedro Olivares. Brown & Gay Engineering, Inc. was retained by the government to actually design the tollway. The Olivares family sued both the Tollway Authority and Brown and Gay Engineering. The Tollway Authority filed a Plea to the Jurisdiction in which it claimed that the doctrine of sovereign protected it from the Olivares’ claims of action. The trial court denied the motion, but the Court of Appeals granted the motion and remanded the case to the trial court, ruling that the
In determining that an arbitrator may be deposed after issuing his award, the Dallas Court of Appeals examined the standards for allowing post-award discovery to examine “evident partiality.” It also examined the evidentiary value of unsworn statements made by attorneys in court. In Fatima Rodas v. La Madeleine of Texas, Inc., Cause No. 05-14-00054-CV, an employee of La Madeleine, Rodas, sued La Madeleine for injuries she sustained on the job. La Madeleine compelled arbitration of the dispute. The arbitrator issued a take nothing award against Rodas. After the award was issued, Rodas filed a motion to vacate, arguing the arbitrator failed to disclose another arbitration he was presiding over and in which La Madeleine’s counsel was representing one of the parties. Rodas sought to depose the arbitrator about the undisclosed contact, but La Madeleine and the arbitrator opposed the discovery. During hearings on whether Rodas could depose the arbitrator, the arbitrator’s attorney disclosed that La Madeleine’s attorneys had two other arbitrations, not just one, with the arbitrator and provided inconsistent information about the