express negligence doctrine in Texas

2026Indeed, in the second case, Ethyl Corp. v. Daniel Construction Co., this Court expressly affirmed that “[p]arties may contract for comparative indemnity so long as they comply with the express negligence doctrine set out herein.” 725 S.W.2d 705 , 708–09 (Tex. 1987) (emphasis added).

2026Co. v. McBride, 322 S.W.2d 492, 497 (Tex. 1958). 7 “Parties may contract for comparative indemnity,” Ethyl, 725 S.W.2d at 708–09, subject only to the express-negligence doctrine addressed below in Part II.B.

2024Code Ann. § 27.005 (d); see also Storage & Processors, Inc. v. Reyes, 134 S.W.3d 190, 192 (Tex. 2004) 18 Fair notice encompasses (1) the express negligence doctrine and (2) the conspicuousness requirement.

2023See, e.g., Sydlik, 195 S.W.3d at 332–33 (a provision must “mention” the claim to be released to meet the requirements of the express negligence rule) (citing Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 938 (Tex. 1991) (“In order to effectively release a claim in Texas, the releasing instrument must ‘mention’ the claim to be released.”); Atlantic Richfield Co., 768 S.W.2d at 725-26 (language specifically referring to “any negligent act or commission of [the released party]” was sufficient to define the parties’ intent) Reyes, 134 S.W.3d at 192 (law requires intent to shift the risk of o

2026That is, according to the Velas, the language in GEC’s release is “too broad and unspecific to satisfy the express negligence rule[.]” See id. at 508 (“[A] party seeking indemnity from the consequences of that party’s own negligence must express that intent in specific terms within the four corners of the contract.”); id. at 509 (holding that same rule applies to releases); Littlefield, 955 S.W.2d at 274 (“[A] party’s intent to be released from all liability caused by its own future negligence must be expressed in unambiguous terms within the four corners of the contract.”).

2026Rather, they argue that the limitation-of-liability provision is unenforceable because it operates as a pre-injury release and does not satisfy the express-negligence doctrine under Dresser Industries, Inc. v. Page Petroleum, Inc., 853 S.W.2d 505 , 507–11 (Tex. 1993).

2024See Dresser Indus., Inc., 853 S.W.2d at 508–09 (explaining that the fair notice requirements of conspicuousness and the express negligence doctrine apply to releases as well as to indemnity agreements and concluding that the releases were not conspicuous because the provisions were located on the back of a work order in a series of numbered paragraphs without headings or contrasting type); Enserch Corp. v. Parker, 794 S.W.2d 2, 8 (Tex. 1990) (providing that the indemnity language was sufficiently conspicuous to afford fair notice of its existence when the entire contract appeared on one page a

2014“The fair notice requirements include the express negligence doctrine and the conspicuousness requirement.” Id. at 508 (citing Enserch Corp. v. Parker, 794 S.W.2d 2, 8 (Tex.1990)); see Storage & Processors, Inc. v. Reyes, 134 S.W.3d 190, 192 (Tex.2004).

2023See, e.g., Sydlik, 195 S.W.3d at 332–33 (a provision must “mention” the claim to be released to meet the requirements of the express negligence rule) (citing Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 938 (Tex. 1991) (“In order to effectively release a claim in Texas, the releasing instrument must ‘mention’ the claim to be released.”); Atlantic Richfield Co., 768 S.W.2d at 725-26 (language specifically referring to “any negligent act or commission of [the released party]” was sufficient to define the parties’ intent) Reyes, 134 S.W.3d at 192 (law requires intent to shift the risk of o

2013Pers., Inc., 768 S.W.2d 724, 726 (Tex.1989) (holding that language indemnifying for “any negligent act” sufficiently defined the parties’ intentions and met the requirements of the express negligence rule); B-F-W Constr.

2020The supreme court held that, when the claim at issue is subject to the express-negligence test, “[a]bsent a duty to indemnify there is no obligation to pay attorney’s fees.” Id. at 815 (explaining that to hold otherwise “would leave indemnitors liable for a cost resulting from a claim of negligence which they did not agree to bear”). 9 While it is not entirely clear whether the trial court ruled on this argument, when reviewing a summary judgment, “the court of appeals should consider all grounds that the trial court rules on and may consider grounds that the trial court does not rule on in th

2013Co. v. Constructors & Assocs., Inc., 888 S.W.2d 813, 814 (Tex.1994) (“We hold that no obligation to indemnify an indemnitee for the costs or expenses resulting from a claim made against it for its own negligence arises unless the indemnification agreement complies with the express negligence test.”); Ethyl Corp. v. Daniel Constr.

2010Exploration Corp. , 761 S.W.2d at 65 . [3] Evans argues that he is not liable even if the express negligence test is not satisfied because the Stanfords possessed actual knowledge of Evans’s intent to indemnify and release himself from his own negligent acts.

2005In Adams, the court held that the following language satisfies the express negligence test: "Contractor agrees to protect, defend, and indemnify, and save operator ... from and against all claims, demands, and causes of action ... without regard to the cause or causes thereof or the negligence of any party or parties...." Adams Resources Exploration Corp., 761 S.W.2d at 64 (emphasis supplied).

2020Accordingly, the clause “‘did not clearly require’ the lessee to indemnify the owner against strict products liability.” Houston Lighting & Power, 890 S.W.2d at 458 (quoting Rourke, 511 S.W.2d at 341 ). 4 Pioneer points out that a case from this court decided after Houston Lighting & Power states that “the express negligence doctrine does not apply to non-negligent actions.” English v. BGP Int’l, Inc., 174 S.W.3d 366, 375 (Tex. App.—Houston [14th Dist.] 2005, no pet.); see also DDD Energy, Inc. v. Veritas DGC Land, Inc., 60 S.W.3d 880, 885 (Tex. App.—Houston [14th Dist.] 2001, no pet.) (“[T]he

2020Our court has since recognized that “the express-negligence rule applies to indemnification for strict liability claims.” AVCO Corp. v. Interstate Sw., Ltd., 251 S.W.3d 632 , 666–67 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (citing Houston Lighting & Power, 890 S.W.2d at 459 ). 5 Here, as in Houston Lighting & Power, the indemnity clause does not mention strict liability or products liability.

2026Co., 725 S.W.2d 705 , 707–08 (Tex. 1987) (noting that the purpose of the express negligence rule is to address misleading clauses in which “[t]he intent of the scrivener[] is to indemnify the indemnitee for its negligence, yet be just ambiguous enough to conceal that intent from the indemnitor”); Littlefield v. Schaefer, 955 S.W.2d 272, 274 (Tex. 1997) (“[A] party’s intent to be released from all liability caused by its own future negligence must be expressed in unambiguous terms within the four corners of the contract.”).

2026That is, according to the Velas, the language in GEC’s release is “too broad and unspecific to satisfy the express negligence rule[.]” See id. at 508 (“[A] party seeking indemnity from the consequences of that party’s own negligence must express that intent in specific terms within the four corners of the contract.”); id. at 509 (holding that same rule applies to releases); Littlefield, 955 S.W.2d at 274 (“[A] party’s intent to be released from all liability caused by its own future negligence must be expressed in unambiguous terms within the four corners of the contract.”).

2001See MAN GHH Logistics GMBH v. Emscor, Inc., 858 S.W.2d 41, 43 (Tex.App.—Houston [14th Dist.] 1993, no writ) (The express negligence doctrine did not apply, because the parties were not seeking to recover for their own negligence.); Whitson v. Goodbodys, Inc., 773 S.W.2d 381 , 382 n. 2 (Tex.App. — Dallas 1989, writ denied) (Texas courts have applied the express negligence doctrine only in situations when the indemnitee was seeking to compel the indemnitor to assume responsibility for injuries resulting to a third party as a result of the indemnitee’s negligence.); Continental Steel Co. v. H.A.

2001"The spot market price of gas is much lower than the long-term contract price." Lone Star Gas Co. v. Railroad Comm'n, 798 S.W.2d 888, 893 (Tex.App.-Austin 1990), rev'd on other grounds, 844 S.W.2d 679 (Tex.1992). [3] Transco drafted the ERPP in the Omnibus. [4] The decision not to develop the Oak Hill field (the Brightwell, Armstrong, and other royalty owners' lands) was Texaco's alone. [5] Transco does not challenge the damage amount. [6] Both Transco and Texaco pled the contract was unambiguous, but Texaco argues the ERPP does cover claims for unproduced gas. [7] See MAN GHH Logistics GMBH v

1995Likewise, in Monsanto Co. v. Owens-Coming Fiberglas, 764 S.W.2d 293, 295 (Tex.App.—Houston [1st Dist.] 1988, no writ), the term “negligence” was not found anywhere in the agreement, leading the court to conclude that the indemnity agreement did not satisfy the express negligence test.

1995Likewise, in Monsanto Co. v. Owens-Corning Fiberglas, 764 S.W.2d 293, 295 (Tex. App.—Houston [1st Dist.] 1988, no writ), the term "negligence" was not found anywhere in the agreement, leading the court to conclude that the indemnity agreement did not satisfy the express negligence test.

2023See, e.g., Sydlik, 195 S.W.3d at 332–33 (a provision must “mention” the claim to be released to meet the requirements of the express negligence rule) (citing Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 938 (Tex. 1991) (“In order to effectively release a claim in Texas, the releasing instrument must ‘mention’ the claim to be released.”); Atlantic Richfield Co., 768 S.W.2d at 725-26 (language specifically referring to “any negligent act or commission of [the released party]” was sufficient to define the parties’ intent) Reyes, 134 S.W.3d at 192 (law requires intent to shift the risk of o

2020Consequently, actual knowledge cannot substitute for the express negligence requirement, see Blankenship v. Spectra Energy Corp., No. 13-12-00546-CV, 2013 WL 4334306 , at *5 (Tex. App.—Corpus Christi–Edinburg Aug. 15, 2013, no pet.) (mem. op.) (quoting Sydlik v. REEIII, Inc., 195 S.W.3d 329, 333 (Tex. App.— 17 Houston [14th Dist.] 2006, no pet.)), particularly when, as here, the release terms are expressed in a separate agreement not signed by the party who the proponent of the agreement seeks to bind.

2013Co. v. Garza, 748 S.W.2d 611, 613 (Tex. App.—Fort Worth 1988, no writ) (concluding that “‘and regardless of any cause or of any fault or negligence of contractor’ meets the express negligence test”).

2013Co. v. Garza, 748 S.W.2d 611, 613 (Tex.App.-Fort Worth 1988, no writ) (concluding that “‘and regardless of any cause or of any fault or negligence of contractor’ meets the express negligence test”).

2008On appeal, Lycoming relies on Green International, Inc. v. Solis to support its argument that the express-negligence rule does not apply to Lycoming's claim for reimbursement for its own economic losses. 951 S.W.2d 384, 387 (Tex.1997) (holding that a "no-damages-for-delay" contract clause that shifts economic damages for breach of contract and does not shift liability for third-party tort and negligence damages is not an indemnity agreement).

2008On appeal, Lycoming relies on Green International, Inc. v. Solis to support its argument that the express-negligence rule does not apply to Lycoming’s claim for reimbursement for its own economic losses. 951 S.W.2d 384, 387 (Tex.1997) (holding that a “no-damages-for-delay” contract clause that shifts economic damages for breach of contract and does not shift liability for third-party tort and negligence damages is not an indemnity agreement).

2020Accordingly, the clause “‘did not clearly require’ the lessee to indemnify the owner against strict products liability.” Houston Lighting & Power, 890 S.W.2d at 458 (quoting Rourke, 511 S.W.2d at 341 ). 4 Pioneer points out that a case from this court decided after Houston Lighting & Power states that “the express negligence doctrine does not apply to non-negligent actions.” English v. BGP Int’l, Inc., 174 S.W.3d 366, 375 (Tex. App.—Houston [14th Dist.] 2005, no pet.); see also DDD Energy, Inc. v. Veritas DGC Land, Inc., 60 S.W.3d 880, 885 (Tex. App.—Houston [14th Dist.] 2001, no pet.) (“[T]he

2020See DDD Energy, 60 S.W.3d at 885 (although express-negligence test barred indemnity for negligence, trial court erred by determining that indemnity provision was unenforceable for other claims within provision’s scope).8 7 As above, we note that Pioneer does not argue that the indemnity clause does not cover the employee’s negligence claim. 8 While the “other claims” in DDD Energy were not subject to the express-negligence requirement as in our case, DDD Energy nonetheless presents the same question we are faced with here: is an indemnity clause enforceable at all when one, but not all, claims

2010Tex. 1987) (finding contract language indemnifying defendant from all claims “ without limit and without regard to the cause or causes thereof or the negligence of any party or parties ” satisfied express negligence doctrine under Texas law); Maxus Exploration Co. v. Moran Bros., Inc. , 817 S.W.2d 50 , 51 n.1, 56–57 (Tex. 1991) (holding contract provision protecting indemnitee from liability for all claims “without limit and without regard to the cause or causes thereof or the negligence of any party or parties” satisfied the express negligence test); Adams Res.

1996The only reference to Porras’s waiver of his common law rights is the statement “the EMPLOYEE agrees to limit his/her recovery against BPS and CLIENT COM *185 PANY for such compensable injuries to benefits allowed by the [workers’ compensation] Act.” In contrast, clauses which have been held enforceable under the express negligence doctrine must contain unambiguous language such as: “Diamond Shamrock agree[s] to indemnify Moran against all bodily injury, death and property claims by its employees or the employees of its contractors ‘without limit and without regard to the cause or causes there

2025For a contractual provision to be considered conspicuous, “something must appear on the face of the [contract] to attract the attention of a reasonable person when he looks at it.” Ling & Co. v. Trinity Sav. & Loan Ass’n, 482 S.W.2d 841, 843 (Tex. 1972).

2018“The conspicuous requirement mandates ‘that something must appear on the face of the [contract] to attract the attention of a reasonable person when he looks at it.’” Id. (quoting Ling & Co. v. 31 Trinity Sav. & Loan Ass’n, 482 S.W.2d 841, 843 (Tex. 1972)).

2001Lott, Inc., 772 S.W.2d 513, 515 (Tex.App. — Dallas 1989, writ denied) (The Ethyl court addressed only liability for the indemnitee’s own negligence, whether sole, joint or concurrent.); Delta Drilling Co. v. Cruz, 707 S.W.2d 660, 668 (Tex.App. — Corpus Christi 1986, writ ref'd n.r.e.) (The prior clear and unequivocal test did not apply, because there was no claim for indemnity for a party’s own negligence.); M.M.

1994Lott, Inc., 772 S.W.2d 513 (Tex.App.—Dallas 1989, writ denied), that the express negligence test only applies when an indemnitee has been found negligent.

1994Id. at 792 . 1 The express negligence requirement is not an affirmative defense but a rule of contract interpretation.

1993“The purpose of the express negligence doctrine is to avoid surprise to the indemnitor by forcing parties to avoid deliberately vague language that a court might later find to impose crashing liability.” Const. Inv. & Cons. v. Dresser Ind., 776 S.W.2d 790, 793 (Tex.App.—Houston [1st Dist.] 1989, writ denied).

2023See Stanford v. Evans, No. 14–08–00776–CV, 2010 WL 2517675 , at *2-3 (Tex. App—Houston [14th Dist.] June 24, 2010, no pet.) (mem.op.) (a broad provision purporting to hold a party harmless from “any claims or damages no matter how caused” does not reflect a specific and unambiguous intent to waive liability for negligent acts); Trinity Indus., Inc. v. Ashland, Inc., 53 S.W.3d 852, 869 (Tex. App.—Austin 2001, pet. denied) (agreement stating party was released from “all claims . . . and liabilities . . . of any nature whatsoever” was not sufficiently specific to bar claims for negligent misrepre

2013In support of her claim that the release language used in this case does not satisfy the express negligence rule, Ramirez primarily relies on three cases: Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 938 (Tex. 1991); Ethyl Corp. v. Daniel Const. Co., 725 S.W.2d 705 , 707–08 (Tex. 1993); and Trinity Indus., Inc. v. Ashland, Inc., 53 S.W.3d 852, 869 (Tex. App.— Austin 2001, pet. denied).

2020In Banzhaf, the court held that an indemnity provision was sufficient to satisfy the express negligence doctrine. 28 S.W.3d at 188–89.

2020The court noted that the express negligence doctrine did not require that the indemnity provision use the specific word “negligence.” Id.

2001See MAN GHH Logistics GMBH v. Emscor, Inc., 858 S.W.2d 41, 43 (Tex.App.—Houston [14th Dist.] 1993, no writ) (The express negligence doctrine did not apply, because the parties were not seeking to recover for their own negligence.); Whitson v. Goodbodys, Inc., 773 S.W.2d 381 , 382 n. 2 (Tex.App. — Dallas 1989, writ denied) (Texas courts have applied the express negligence doctrine only in situations when the indemnitee was seeking to compel the indemnitor to assume responsibility for injuries resulting to a third party as a result of the indemnitee’s negligence.); Continental Steel Co. v. H.A.

2001"The spot market price of gas is much lower than the long-term contract price." Lone Star Gas Co. v. Railroad Comm'n, 798 S.W.2d 888, 893 (Tex.App.-Austin 1990), rev'd on other grounds, 844 S.W.2d 679 (Tex.1992). [3] Transco drafted the ERPP in the Omnibus. [4] The decision not to develop the Oak Hill field (the Brightwell, Armstrong, and other royalty owners' lands) was Texaco's alone. [5] Transco does not challenge the damage amount. [6] Both Transco and Texaco pled the contract was unambiguous, but Texaco argues the ERPP does cover claims for unproduced gas. [7] See MAN GHH Logistics GMBH v

2025“The express negligence doctrine requires that the parties’ intent to release [one of the parties] from liability for its own future negligence ‘must be expressed in unambiguous terms within the four corners of the release.’” Silsbee Hosp., Inc. v. George, 163 S.W.3d 284, 289 (Tex. App.—Beaumont 2005, pet. denied).

2006Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex.2003) ("Deciding whether a contract is ambiguous is a question of law for the court.”); Silsbee Hosp., Inc. v. George, 163 S.W.3d 284, 289-90 (Tex.App.-Beaumont 2005, pet. denied) (construing waiver agreement signed by employee and holding, “When the fair notice requirements apply, a contract must satisfy both requirements [i.e., the express negligence doctrine and conspicuousness] to avoid being unenforceable as a matter of law ”) (emphasis added). .

2020Accordingly, the clause “‘did not clearly require’ the lessee to indemnify the owner against strict products liability.” Houston Lighting & Power, 890 S.W.2d at 458 (quoting Rourke, 511 S.W.2d at 341 ). 4 Pioneer points out that a case from this court decided after Houston Lighting & Power states that “the express negligence doctrine does not apply to non-negligent actions.” English v. BGP Int’l, Inc., 174 S.W.3d 366, 375 (Tex. App.—Houston [14th Dist.] 2005, no pet.); see also DDD Energy, Inc. v. Veritas DGC Land, Inc., 60 S.W.3d 880, 885 (Tex. App.—Houston [14th Dist.] 2001, no pet.) (“[T]he

2010Co. v. Constructors & Assocs. , 888 S.W.2d 813 , 814–15 (Tex. 1994); English , 174 S.W.3d at 374 . [2] Because the exculpatory provisions relied upon by Evans do not satisfy the requirements of the express negligence doctrine, Evans is unable to show that he is entitled to judgment as a matter of law and that there is no genuine issue of material fact with respect to the Stanfords’ claim for damages to their personal property.

1998The Atlantic court uses Singleton v. Crown Central Petroleum Corp., as an example of an indemnity clause which does not satisfy the express negligence doctrine. 729 S.W.2d 690 (Tex.1987).

1995Petroleum Corp., 729 S.W.2d 690, 691 (Tex.1987) (agreement to indemnify for any and all losses arising in connection with the work to be performed, excepting only claims resulting from owner’s sole negligence, does not satisfy the express negligence doctrine).

2005The express negligence doctrine requires that the parties’ intent to release an employer from liability for its own future negligence “must be expressed in unambiguous terms within the four corners of the release.” Lawrence, 44 S.W.3d at 553 .

2005The express negligence doctrine requires that the parties' intent to release an employer from liability for its own future negligence "must be expressed in unambiguous terms within the four corners of the release." Lawrence , 44 S.W.3d at 553 .

2026There are various ways to “comply,” of course, but Gulf Insurance made clear that one was to render the express- negligence doctrine inapplicable by affirmatively disclaiming any entitlement to indemnification for one’s own negligence. 22 S.W.3d at 424 .

2010Co. v. Burns Motors, Inc ., 22 S.W.3d 417, 423 (Tex. 2000) (holding that a contract that did not contemplate indemnifying the indemnitee from consequences of his own negligence was not subject to the express negligence doctrine).