indemnity clause in Texas

2025We construe indemnity agreements under the normal contract-construction rules, Ayres Welding Co. v. Conoco, Inc., 243 S.W.3d 177, 180 (Tex. App.—Houston [14th Dist.] 2007, pet. denied), and compliance with both fair-notice requirements is a question of law, Dresser Indus., Inc., 853 S.W.2d at 509 . (2) Analysis The first sentence of the indemnity clause in the Administration Agreement indemnifies the Administrator from loss or damage from “any” claim by “any” person, entity, or governmental authority “arising from act, omission or forbearance of the current Manager or any previous Manager or a

2024Cate v. Dover Corp., 790 S.W.2d 559 , 561–62 (Tex. 1990); Dresser Indus., Inc., 853 S.W.2d at 508 n.2.

2024“There are two types of indemnity agreements, those that indemnify against liabilities and those that indemnify against damages.” Id. at 207 .

2015Gate Guard did not, however, offer the trial court any reason why it would have done so if the indemnity clause would never be triggered—i.e., if Raub had no right to sue Gate Guard at all, and Craft and Henry’s liability under the indemnity clause could therefore never “become[] fixed and certain.” See Ingersoll-Rand Co., 997 S.W.2d at 207 (a broad indemnity clause like this one is not triggered until “the liability becomes fixed and certain”).

2025We construe indemnity agreements under the normal contract-construction rules, Ayres Welding Co. v. Conoco, Inc., 243 S.W.3d 177, 180 (Tex. App.—Houston [14th Dist.] 2007, pet. denied), and compliance with both fair-notice requirements is a question of law, Dresser Indus., Inc., 853 S.W.2d at 509 . (2) Analysis The first sentence of the indemnity clause in the Administration Agreement indemnifies the Administrator from loss or damage from “any” claim by “any” person, entity, or governmental authority “arising from act, omission or forbearance of the current Manager or any previous Manager or a

2011Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 508 (Tex.1993); Ayres Welding Co., Inc. v. Conoco, Inc., 243 S.W.3d 177, 181 (Tex.App.-Houston [14th Dist.] 2007, pet. denied).

2002Id. at 919 (emphasis added) (holding that the contention was based on evidence contrary to the fact finder's determination and thus must be disregarded), overruled in part by Dresser Indus. , 853 S.W.2d at 509 (holding that compliance with fair-notice test is question of law, not fact question).

2002Id. at 919 (emphasis added) (holding that the contention was based on evidence contrary to the fact finder’s determination and thus must be disregarded), overruled in part by Dresser Indus., 853 S.W.2d at 509 (holding that compliance with fair-notice test is question of law, not fact question).

2023Id. at 126.

2015Notably, this Court in Tesoro interpreted Ken Petroleum to limit a waiver of subrogation based upon the indemnity clause: “A liability insurer for an oil well driller or operator does not waive its right to subrogation to its insured’s claims against the other party for matters beyond the scope of the indemnity agreement between the parties.” Tesoro, 106 S.W.3d at 133 (citing Ken Petroleum, 24 S.W.3d at 355 ). 7 An illustration of the reason for the use of the plural term “liabilities” can be gleaned from Tesoro; namely, it is the agreement to provide indemnity for one or more causes of action

2020Storage & Processors, Inc. v. Reyes, 134 S.W.3d 190, 192 (Tex. 2004); Littlefield v. Schaefer, 955 S.W.2d 272, 274 (Tex. 1997).

2020See Reyes, 134 S.W.3d at 192 (listing express negligence and conspicuousness as fair-notice requirements).

2020See id.

2003See Getty Oil Co. v. Insurance Co. of N. Am., 845 S.W.2d 794, 804 (Tex. 1992); see also Certain Underwriters at Lloyd's London v. Oryx Energy Co., 142 F.3d 255, 260 (5 th Cir. 1998).

2015See Zimlich, 29 S.W.3d at 71 (stating that where there is no objection, evidence to support finding based on the instruction should be assessed “in light of” the instruction given); Larson v. Cook Consultants, Inc., 690 S.W.2d 567, 568 (Tex.1985) (same); see also Equistar Chems., L.P. v. Dresser-Rand Co., 240 S.W.3d 864, 868 (Tex. 2007) (party’s failure to object to charge and instruction waived any error, meaning that the measure of damages was as provided by the question and instruction given).13 13 Also because there was no objection to the question or the charge, we need not address whethe

2014See Zimlich, 29 S.W.3d at 71 (stating that where there is no objection, evidence to support finding based on the instruction should be assessed “in light of” the instruction given); Larson v. Cook Consultants, Inc., 690 S.W.2d 567, 568 (Tex.1985) (same); see also Equistar Chems., L.P. v. Dresser-Rand Co., 240 S.W.3d 864, 868 (Tex. 2007) (party’s failure to object to charge and instruction waived any error, meaning that the measure of damages was as provided by the question and instruction given).13 13 Also because there was no objection to the question or the charge, we need not address whethe

2015See Qwest Commc’ns Int’l, Inc. v. A T & T Corp., 114 S.W.3d 15 , 32–33 (Tex. App.—Austin 2003), rev’d in part on other 25 51 Stated generally, the Landowners’ argument at trial was that its damages as a result of Trinity’s breach were the legal fees it had incurred because of Trinity’s failure to indemnify it in connection with the Village’s lawsuit.

2014See Qwest Commc’ns Int’l, Inc. v. A T & T Corp., 114 S.W.3d 15 , 32–33 (Tex. App.—Austin 2003), rev’d in part on other 25 Stated generally, the Landowners’ argument at trial was that its damages as a result of Trinity’s breach were the legal fees it had incurred because of Trinity’s failure to indemnify it in connection with the Village’s lawsuit.

2015See Zimlich, 29 S.W.3d at 71 (stating that where there is no objection, evidence to support finding based on the instruction should be assessed “in light of” the instruction given); Larson v. Cook Consultants, Inc., 690 S.W.2d 567, 568 (Tex.1985) (same); see also Equistar Chems., L.P. v. Dresser-Rand Co., 240 S.W.3d 864, 868 (Tex. 2007) (party’s failure to object to charge and instruction waived any error, meaning that the measure of damages was as provided by the question and instruction given).13 13 Also because there was no objection to the question or the charge, we need not address whethe

2014See Zimlich, 29 S.W.3d at 71 (stating that where there is no objection, evidence to support finding based on the instruction should be assessed “in light of” the instruction given); Larson v. Cook Consultants, Inc., 690 S.W.2d 567, 568 (Tex.1985) (same); see also Equistar Chems., L.P. v. Dresser-Rand Co., 240 S.W.3d 864, 868 (Tex. 2007) (party’s failure to object to charge and instruction waived any error, meaning that the measure of damages was as provided by the question and instruction given).13 13 Also because there was no objection to the question or the charge, we need not address whethe

2015See Zimlich, 29 S.W.3d at 71 (stating that where there is no objection, evidence to support finding based on the instruction should be assessed “in light of” the instruction given); Larson v. Cook Consultants, Inc., 690 S.W.2d 567, 568 (Tex.1985) (same); see also Equistar Chems., L.P. v. Dresser-Rand Co., 240 S.W.3d 864, 868 (Tex. 2007) (party’s failure to object to charge and instruction waived any error, meaning that the measure of damages was as provided by the question and instruction given).13 13 Also because there was no objection to the question or the charge, we need not address whethe

2014See Zimlich, 29 S.W.3d at 71 (stating that where there is no objection, evidence to support finding based on the instruction should be assessed “in light of” the instruction given); Larson v. Cook Consultants, Inc., 690 S.W.2d 567, 568 (Tex.1985) (same); see also Equistar Chems., L.P. v. Dresser-Rand Co., 240 S.W.3d 864, 868 (Tex. 2007) (party’s failure to object to charge and instruction waived any error, meaning that the measure of damages was as provided by the question and instruction given).13 13 Also because there was no objection to the question or the charge, we need not address whethe

2012See id.

2012See id.

2010See Sieber & Calicutt, Inc. v. La Gloria Oil & Gas Co., 66 S.W.3d 340, 350-51 (Tex.App.-Tyler 2001, pet. denied); Tenneco Oil Co. v. Gulsby Engineering, Inc., 846 S.W.2d 599, 607 (Tex.App.-Houston [14th Dist.] 1993, writ denied); Carroll v. Paetznick, 603 S.W.2d 381, 383 (Tex.Civ.

2010See Seiber & Calicutt, Inc. v. La Gloria Oil & Gas Co. , 66 S.W.3d 340 , 350–51 (Tex. App.—Tyler 2001, pet. denied); Tenneco Oil Co. v. Gulsby Engineering, Inc , 846 S.W.2d 599, 607 (Tex. App.—Houston [14th Dist.] 1993, writ denied); Carroll v. Paetznick , 603 S.W.2d 381, 383 (Tex. Civ.

2010See Sieber & Calicutt, Inc. v. La Gloria Oil & Gas Co., 66 S.W.3d 340, 350-51 (Tex.App.-Tyler 2001, pet. denied); Tenneco Oil Co. v. Gulsby Engineering, Inc., 846 S.W.2d 599, 607 (Tex.App.-Houston [14th Dist.] 1993, writ denied); Carroll v. Paetznick, 603 S.W.2d 381, 383 (Tex.Civ.

2010See Seiber & Calicutt, Inc. v. La Gloria Oil & Gas Co. , 66 S.W.3d 340 , 350–51 (Tex. App.—Tyler 2001, pet. denied); Tenneco Oil Co. v. Gulsby Engineering, Inc , 846 S.W.2d 599, 607 (Tex. App.—Houston [14th Dist.] 1993, writ denied); Carroll v. Paetznick , 603 S.W.2d 381, 383 (Tex. Civ.

2010See Sieber & Calicutt, Inc. v. La Gloria Oil & Gas Co., 66 S.W.3d 340, 350-51 (Tex.App.-Tyler 2001, pet. denied); Tenneco Oil Co. v. Gulsby Engineering, Inc., 846 S.W.2d 599, 607 (Tex.App.-Houston [14th Dist.] 1993, writ denied); Carroll v. Paetznick, 603 S.W.2d 381, 383 (Tex.Civ.

2010See Seiber & Calicutt, Inc. v. La Gloria Oil & Gas Co. , 66 S.W.3d 340 , 350–51 (Tex. App.—Tyler 2001, pet. denied); Tenneco Oil Co. v. Gulsby Engineering, Inc , 846 S.W.2d 599, 607 (Tex. App.—Houston [14th Dist.] 1993, writ denied); Carroll v. Paetznick , 603 S.W.2d 381, 383 (Tex. Civ.

2005See Boyd, 786 S.W.2d at 530 .

2005See Boyd, 786 S.W.2d at 530 .

2001Under Malooly Brothers, Inc. v. Napier, 461 S.W.2d 119, 121 (Tex.1970), this point is sufficient to allow argument of all possible grounds upon which summary judgment should have been denied.

2001Under Malooly Brothers, Inc. v. Napier, 461 S.W.2d 119,121 (Tex. 1970), this point is sufficient to allow argument of all possible grounds upon which summary judgment should have been denied.

2020Id. 2 The trial court’s final judgment states, “This order disposes of all parties and claims and is therefore a final judgment.” See Lehmann v. Har-Con Corp., 39 S.W.3d 191 , 192–93 (Tex. 2001). 3 Pioneer did not argue in the trial court, and does not argue here, that the indemnity clause does not meet the express-negligence requirement regarding the negligence claim asserted by the employee. 4 1.

1990It concluded that the indemnity clause does not meet the *166 express negligence rule as announced in Ethyl Corp. v. Daniel Construction Co., 725 S.W.2d 705 (Tex.1987) and its progeny, including Singleton v. Crown Central Petroleum Corp., 729 S.W.2d 690 (Tex.1987) and (accordingly) that Champlin is not entitled to indemnity from Goldston as a matter of law.

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

2020See 60 S.W.3d at 885 . 7 Pioneer argues that the supreme court’s decisions in Fisk and Houston Lighting & Power support its position.

2016Id. at 354–55.

2015Notably, this Court in Tesoro interpreted Ken Petroleum to limit a waiver of subrogation based upon the indemnity clause: “A liability insurer for an oil well driller or operator does not waive its right to subrogation to its insured’s claims against the other party for matters beyond the scope of the indemnity agreement between the parties.” Tesoro, 106 S.W.3d at 133 (citing Ken Petroleum, 24 S.W.3d at 355 ). 7 An illustration of the reason for the use of the plural term “liabilities” can be gleaned from Tesoro; namely, it is the agreement to provide indemnity for one or more causes of action

2025Mission argues this case resembles Enserch Corp. v. Parker, where the court enforced an indemnity provision. 794 S.W.2d 2, 9 (Tex. 1990).

2010Id. at 8 .

2020In reaching its conclusion, the supreme court cited with approval Rourke v. Garza, in which the First Court of Appeals denied indemnity for strict-liability claims to an equipment owner because the indemnity clause at issue was “completely silent as to defects in the leased equipment.” 511 S.W.2d 331, 341 (Tex. Civ.

1986Id. at 341 .

2004See Atlantic Richfield Co. v. Petroleum Personnel, Inc., 768 S.W.2d 724, 726 (Tex.1989). 2 To distinguish its agreement to indemnify Spaw-Glass from the Atlantic Richfield indemnity, ETS relies on the additional language contained within the contract’s responsibility-shifting provision.

1990The indemnity clause in Atlantic provided that the indemnitor would indemnify the indemnitee for “any negligent act or omission of [the indemnitee], its officers, agents or employees.... ” Id.

1993See R & P Enter. v. LaGuarta, Gavrel & Kirk, 596 S.W.2d 517, 519 (Tex.1980) (construing the entire instrument so that none of the provisions will be rendered meaningless); Page v. Superior Stone Prod., Inc., 412 S.W.2d 660, 668 (Tex.Civ.App.—Austin 1967, writ ref'd n.r.e.) (if there is some other reasonable construction, the courts will not presume the parties intended to call for an impossible condition precedent as a test of performance).

1981R & P Enterprises v. LaGuarta, Gavrel & Kirk, Inc., 596 S.W.2d 517 (Tex.1980).

1992The Texas Supreme Court abolished common law indemnity between joint tortfeasors in B & B Auto Supply v. Central Freight Lines, Inc., 603 S.W.2d 814, 816-17 (Tex.1980).

1984This is all that remains of the common law doctrine of indemnity.” See also Duncan v. Cessna Aircraft Company, 665 S.W.2d 414 (Tex.1984); see also Cypress Creek Utility Service Co., Inc. v. Muller, 640 S.W.2d 860 (Tex.1982); B & B Auto Supply, Sand Pit and Trucking Company v. Central Freight Lines, Inc., 603 S.W.2d 814 (Tex.1980).