Requisitos legales y otros requisitos

[ 35 ] Indemnified Matter - Exclude d Ma tter - “Ex cept Gr oss Neg ligence.” Haring v. Bay Rock Corp., 773 S.W.2d 676 (Tex. Ap p.--San Anto nio 198 9, no writ). In this case involving a wrongful death action, the San Antonio Court of Appea ls held the following provision did not meet the express negligence test since the negligence of the alleged indemnified person (oil and gas lessee) is no t mentioned . The pro vision is word ed as a disc laimer by the o perator as to any liability except for gross negligence, and not as an indemnification by the operator for the operator's "disclaimed" but not expressly disclaimed negligence.

Provision:

[Operator (Bay Ro ck Corp .)] shall have no liability to owners of interests in said wells and leases (Haring) for losses sustained, or liabilities incurred, except such as may result from gross negligence or from breach o f the provision s of this agreem ent.

b. Sole Negligence.

[ 36] Indemnified Matter - Excluded Matter - “Excepting Only Sole Negligence.” In Singleton v. Crown Central Petroleum Corp., 729 S.W.2d 690 (Tex. 1987), the Texas Supreme Co urt found that the following provision failed the express negligence standard since the provision stated what was not to be indemnified--claims resulting from the sole negligence of the premises owner--rather than expressly stating that the premises owner was to be ind emnified from its own negligence.

Provision:

Contractor agrees to ... inde mnify ... owner from and against any and all claims ... of every kind and character whatsoeve r, ... for or in connectio n with loss of life or p ersonal injur y ... directly or indire ctly

arising out of ... the activities of contractor ... excepting only claims arising out of accidents resulting from the sole negligence of owner. (E mphasis ad ded by au thor.)

Linden - Alimak , Inc. v. Mc Dona ld, 745 S.W .2d 82 (T ex. App.--F t. Worth 1988, writ denied). The Fort Worth Court of Appeals reviewed an indemnity provision in an equipment rental agreement. An employee (McDonald) of the equipment lessee (Thomas S. Byrne, Inc.) filed suit against the equipment lessor (Linden-Alimak) to recover damages for personal injuries sustained while the leased crane was being erected. The equipment lessor filed a third party action against the lessee for indemnification. The court held that the following indemnity provision in the equipment lease agreement suffered the same defect as the provision in Crown Central Petroleum. The court found the ind emnity language to be in adequate to indemnify the equipment lessor against its concurrent negligence. The indemnity, by excluding the lessor's sole ne gligence, did not include a case of lessor 's concurrent ne gligence. Situa tions involvin g lessor's concurrent negligence were not mentioned (i.e., "in part" not mentioned).

Provision:

It is expressly understood and agreed that Lessor shall not be liable for damages, losses and injuries of any kind whatsoever, whether to persons o r property, or for any other loss arising from the operation, handling, use of, transportation of, or in any way connected with the said equipment or any part thereof from whatsoever cause arising, except direct damages, losses or injuries cau sed by Lessor's sole negligence. Lessee shall indemnify and save Lessor harmless from any and all claims, demands, liabilities, judgments, actions or causes of action of any nature whatsoever (except if cau sed by L esso r's sole neglig ence) arising out of the selection, possession, leasing, operation, control, use, maintenance, repair, adj ustment or re turn of the equ ipment. (Em phasis add ed by autho r.)

The Texarkana Court of Appeals in Texas Utilities Electric Co. v. Babcock & Wilcox, 893 S.W .2d 739 (Tex . App.--Texarkana 1995, no writ) found that neither of the following indemnity provisions expressly covered the Indemnified Person's (T exas Uti lities') concurrent neglig ence in caus ing injuries to an employee of Flour D aniel, a contractor employe d by Texas U tilities.

Provisions:

[Babcock & Wilcox agree to indemnify Texas Utilities for claims again st Texas Utilities for damages arising from] personal injury or d eath or d ama ge to pro per ty of Com pan y's [Babco ck's] agents, serva nts and employees, as well as the agents, servants, and employees of Company's [Babcock's] subcontractor, whether or not arising from sole or concurrent negligence or fault of Purchaser [TU].

[Babc ock & W ilcox] shall de fend ... indem nify ... Purchaser [TU] a nd its ... agents ... from and against any and all claims ... of every kind and character whatsoever arising in favor of any person or entity (other than the agents, servants, and employees or [sic] [of?] Company [Babcock] or of Company's subcontractor, as provided in the paragraph immed iately above), inc luding ... claims ... on account of personal injuries or death, or damage to property arising out of or incident to the work performed hereunder .... with the only exception being that, as to claims arising in favor of persons or entities other than for injury, death, or damage to the agents, servants, and employees of Company [Babcock] or Company's subcontractor, Purchaser [TU] sh all not be entitled to indemnification for claims, demand s, expenses, judgments, and causes of action resulting from Purchaser's [TU] sole negligence.

The first indemnity does not cover injuries to employe es of a contractor of Texas Utilities. The second indemnity does not cover Texas Utilities' concurrent negligence. The exception for Texas Utilities' sole negligence from the broad indemnity is not equivalent to an express inclusion of Texas Utilities' concurrent negligence.

Similar language (“regardless of whether or not such claim ... is caused in part by a party indemnified hereunder”) does not meet the express negligence te st: Monsan to Co. v. Owen s-Corning F iberglass Corp., 764 S.W.2d 293 (T ex. App.--Houston [1st Dist.] 19 88, no writ); Glendale Construction Services, Inc. v. Accurate Air Systems, Inc., 902 S.W.2d 536 (T ex. App.--H ouston [1s t Dist.] 199 5, writ denied).

c. Willful or Knowing Acts or Omissions.

[ 37 ] Indemnified Matter - Excluded Matter -“Willful or Knowing Acts or Omissions of Indemnified Perso n.” The court in Kenneth H. Hughes Interests v. Westrup, 879 S.W.2d 229, 232-33 (Tex. App.--Houston [1st Dist.] 1994, writ denied) interpreted an exclusion from a con tractor's indem nity contained in a construction contract between a commercial landlord and its contractor for “any claim aris(ing) out of the sole and gross negligence or willful misconduct of Owner (the com mercial landlord, the Indem nified Person)”as including as an exclusion the landlord's "knowing" violation of the warranty of commerc ial habitability and/or "knowing dec eptive trade practice" in its lease with the injured tenant. This case involved a shoe store that was put out of business in the landlord's shopping center by repeated flooding arising out of the action of a backhoe operator of a subcontractor of landlord's construction contractor. The case involved dual theories of recovery, the negligence of the contractor and the knowing deceptive trade practice and breach of warranty of the landlord. The backhoe operator accidentally broke a sewer line, and covered it up after he discovered his error instead of reporting the acciden t. The tenant reported to the landlord that water was seeping from a leak in the slab outside of its premises. The landlord, who was unaware o f the backho e operato r's actions, repea tedly reassured the tenant after each of several floods, that it had corrected the problem when, in fact, it knew it had not. The court held that the intent of the parties by excluding gross negligence, also must have intended to exclude knowing conduct of the landlord, which is a "m ore culpa ble standar d than gross negligence." The court noted that to hold otherwise would be to hold that the intent of the parties was that the indemnitees would not be entitled to indemnity for an act done with the mental state at the low end of the "continu um" of culp able menta l states, but would be so entitled for an act do ne with a mental state tha t is higher on the sc ale, i.e., an act that is more culpable than another for which they indisputably are not entitled to ind emnity. Luna v. North Star Dodge Sales, Inc., 667 S.W.2d 115 , 118 (Tex. 1984).

d. Indemnified Person’s Liability.

[ 38 ] Indemnified Liability - Excluded Liability - Indemnified Person’s Liability. In Renfro Drug C o. v. Lewis, 235 S.W.2d 609 (Tex. 1950), 23 A.L.R.2d 1114 (1950), the court refused to extend the lessee's indemnity covering injuries to persons occurring on the leased premises from any cause to include liabilities arising out of defects in the premises where the indemn ity contained an exception for "any liability which lessor would be liable." Also accord Port Royal.

6. Other Provisions.