Maxim Crane Works, L.P. v. Berkel & Company Contractors, Inc.

ACCEPTED
14-15-00614
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
8/31/2015 2:44:33 PM
CHRISTOPHER PRINE
CLERK

No. 14-15-00614-CV
FILED IN
14th COURT OF APPEALS
HOUSTON, TEXAS
IN THE COURT OF APPEALS
8/31/2015 2:44:33 PM
FOR THE FOURTEENTH DISTRICT OF T EXAS
CHRISTOPHER A. PRINE
Clerk

MAXIM CRANE WORKS, L.P. ,

Appellant
V.

BERKEL & COMPANY CONTRACTORS, INC.

Appellee

Appeal from the 149th Judicial District Court
Brazoria County, Texas
Trial Court Cause No. 75576-CV

BERKEL & COMPANY CONTRACTORS, INC.’S
OBJECTIONS TO MEDIATION & ABATEMENT ORDER

Thomas C. Wright Reagan W. Simpson
State Bar No.22059400 State Bar No. 18404700
Jessica Z. Barger YETTER COLEMAN LLP
State Bar No. 24032706 909 Fannin Street, Suite 3600
Garrett A. Gibson Houston, Texas 77010
State Bar No. 24069024 Tel. 713-632-8000
WRIGHT & CLOSE, LLP Fax 713-632-8002
One Riverway, Suite 2200
Houston, Texas 77056
(713) 572-4321
(713) 572-4320 (fax)
TO THE HONORABLE FOURTEENTH COURT OF APPEALS:

Appellee, Berkel & Company Contractors, Inc. (“Berkel”) files this

objection to this Court’s mediation order, and respectfully shows the Court as

follows.

INTRODUCTION

The Court’s mediation order is premature because Maxim’s appeal for

indemnity and defense costs is not ripe as this is an appeal from a final judgment,

signed on June 17, 2015, against Berkel and Maxim for damages in excess of $43

million. (See Ex. A, Final Amended Judgment) Maxim entered into a settlement

with Plaintiff for its portion of the judgment. Berkel, however, responsible for 90

percent of the judgment, has filed a motion for new trial—set to be heard on

August 31, 2015. Berkel’s notice of appeal (in the event a new trial is not granted)

is not due until September 15, 2015.

Maxim’s attorney’s fees and indemnity claims is contingent on the outcome

of any appeal on the merits in this case. (See Ex. B, Maxim’s supplemental motion

for entry of judgment on Maxim’s Cross Action Against Berkel) In sum,

mediation in Maxim’s appeal premature until there has been a final outcome on the

merits – either in the trial court or on appeal – on the issues between Plaintiffs and

Berkel.

  2
 REASONS SUPPORTING OBJECTIONS TO MEDIATION

Appellee Berkel and Appellant, Maxim, were co-defendants in the

underlying trial court proceedings in Brazoria County. At the conclusion of trial,

the jury found Berkel 90% responsible and Maxim 10% responsible for the

underlying incident, a construction accident in which the plaintiff’s leg was

severed. The jury awarded over $43 million to Plaintiff, his wife, and his daughter.

(See Ex. A, Final Amended Judgment) Maxim has settled with Plaintiffs, but

continues to pursue its indemnity and breach of contract claims against Berkel.

Maxim advised the trial court that its claim for relief against Berkel was

dependent on the outcome of the arguments Berkel is making in the trial court and

anticipates making on appeal if necessary. Berkel’s motion for new trial is

scheduled to be heard by the trial court on August 31, 2015. (See Ex. C, Notice of

Hearing) Berkel’s notice of appeal would not be due until September 15, 2015.

Since Maxim’s claims are contingent – at least in part – on the outcome of the

merits of Berkel’s arguments, this Court should withdraw its mediation order until

the claims of Plaintiffs against Berkel have been finally resolved on appeal.

Conclusion

For the foregoing reasons, Berkel & Company Contractors, Inc. respectfully

requests that this Court withdraw its mediation and abatement order of August 20,

2015.

  3
 Respectfully submitted,

/s/ Jessica Z. Barger
Thomas C. Wright
State Bar No.22059400
Jessica Z. Barger
State Bar No. 24032706
Garrett A. Gibson
State Bar No. 24069024
WRIGHT & CLOSE, LLP
One Riverway, Suite 2200
Houston, Texas 77056
(713) 572-4321
(713) 572-4320 (fax)
wright@wrightclose.com
barger@wrightclose.com
gibson@wrightclose.com

/s/ Reagan W. Simpson
Reagan W. Simpson
State Bar No. 18404700
YETTER COLEMAN LLP
909 Fannin Street, Suite 3600
Houston, Texas 77010
Tel. 713-632-8000
Fax 713-632-8002
rsimpson@yettercoleman.com

ATTORNEYS FOR APPELLEE,
BERKEL & COMPANY
CONTRACTORS, INC.

  4
 CERTIFICATE OF CONFERENCE
I certify that I conferred with opposing counsel on August 29, 2015
regarding the filing of this motion. This motion is opposed.

/s/ Jessica Z. Barger
Jessica Z. Barger

CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this document was served on
all counsel of record in this case, identified below, on August _31, 2015,
electronically through the electronic filing manager and or via facsimile in
compliance with the Texas Rules of Civil Procedure:

Kurt B. Arnold Charles “Chuck” L. Clay, Jr.
M. Paul Skrabanek CHUCK CLAY & ASSOCIATES
ARNOLD & ITKIN LLP 225 Peachtree Street, N.E., Suite 1700
6009 Memorial Drive Atlanta, GA 30303
Houston, TX 77007 Chuck@chuckclay.com
713-222-3850 (fax)
e-service@arnolditkin.com

Ann E. Knight John D. Dwyer
J DIAMOND AND ASSOCIATES GORDON & REES LLP
PLLC 633 West Fifth street, 52nd Floor
1010 N. San Jacinto Los Angeles, CA 90071
Houston, TX 77002 213-680-4470 (fax)
713-227-6801 (fax)
ann@jdiamondandassociates.com

Steven D. Selbe
GORDON & REES, LLP
1900 West Loop South, Suite 1000
Houston, TX 77027
713-961-3938 (fax)
sselbe@gordonrees.com

/s/ Jessica Z. Barger
Jessica Z. Barger

  5
07/01/2015 03:18 9798641061 149TH DISTRICT CT PAGE 02/04

CAUSE NO. 75576.. CV

TYLER LEE AN:O LEIGH ANN LEE § IN THE :OISTRICT COURT OF
INDIVIOUALLY AND AS NEXT FRIEND §
OF SYDNEY ROSE LEE, MINOR §
§
Plaint([{ §
vs. § BRAZORIA COUNTY, TEXAS
§
BERKEl.. & COMPANY CONTRACTORS, §
INC., MAXIM CRANE WORKS, L.P., DIXON §
EQUIPMENT SERVICES, INC., FLOYD §
DIXON, ISAAC DOLAN, JAMES DAVIDSON §
ANDREW BENNETT, AND LINJ<..BELT §
CONSTRUCTION EQUIPMENT CO. §
§
Defendants § l49TH JUDICIAL DISTRICT

AMENDED FINAL JUDGMENT
On Monday) April 20, 2015, this case was called to trial. Plaintiffs Tyler Lee and Leigh

Ann Lee) individually and as next friend of Sydney Rose Lee, a. minor, appeared in person and

th.t·ottgh their attorneys and announced ready for trial. Defendants Berkel & Company

Contractors) Inc. (";Berkel',) and Maxim Crane Works, L.P. ("Maxim'') appeared through their

attorneys and announced ready for trial.

P1'ior to the beginning of trial, Defendant Link-Belt Construction Equipment Co. and
, o(l.(, Atn~; iliA. 4 .
Plaintiffs announced ~ettlement of $1,000,000, which is treated as a credit in this Judgment.

A jury of twelve qualified jurors of Brazoria County (with two alternates) were selected,

sworn, and empanel1ed) after which the jury heard the evidence and the arguments of counsel.

Following the conclusion of evidence, in response to the jury charge, the jury made findings that

the Court received, filed and entered as record on May 6, 2015. The questions submitted to the

jury and the jury's findings are attached as Exhibit A and incorporated by reference.

The jury found Defendant Berkel 90% responsible for the occurrence and found

Defendant Maxim 10% responsible for the occW"rence.

Exhibit A
07/01/2015 03:18 9798641061 149TH DISTRICT CT PAGE 03/04

After. trial but prior to the entry of this Judgment, Defendant Maxim and Plaintiffs

reached a settlement of $3,544,300.60, which is treated as a credit in this Judgment.

The Court hereby renders judgment for Plaintiffs against Berkel.

The Court orders that Plaintiff Tyler Lee recover damages jointly and severally from

Defendant Berkel in the sum of $38,744,866.13, pr~judgm.ent interest of $387,805.81 (calculated

on past damage awat·d of $5,572,800 at the annual r.ate of 5% for an accrual period of 509 days),

court costs and post-judgm.en.t interest at the annual rate of 5% 1.1ntil paid, together with all costs

of court, including costs incutted in enforcement and collection.

The Court orders that Pla.intiff Leigh A1111 Lee, individually) recover damages jointly and

severally from Defendant Berkel in the sum of $174~357.14, prejudgment interest of $6,263.01

(calculated on past damage award of $90,000 at the annual :r.ate of 5% for a11 accrual period of

509 days), court costs, and post~judgment interest at the a11nual rate of 5% until. paid) together

with all costs of court, including costs incurred in enforcement an.d collection.

The Court orders that Plaintiff Leigh Ann Lee; as next friend of Sydney Rose Lee, a

minor, recover damages jointly and severally from Defendant Berkel in the sum of $479,482.13,

prejudgment inte1·est of $3,131.51 (calculated on past damage award of $45,000 at the annual

rate of 5% for an accrual period of 509 days), court costs) an.d post..judgment interest at the

annual rate of 5% until paid, together with all costs of court, including costs incurred in

enforcement and collection.

The Court orders that Ma.xim)s Defense Fees) Costs and Expenses are as follows:
Attorney's fees-- $327)000.00;
Expert witness expenses/costs-- $106,000.00;
Miscellaneous expenses/costs-- $30,000.00; and
Trial expenses/costs-- $41,600.00

2

Exhibit A
07/01/2015 03:18 9798641061 149TH DISTRICT CT PAGE 04(04

Total Defense Fees, Costs, and Expenses are: $504,600.00

The Court additionally orders that pursuant to the .iury's findings as to the negligence
questi011s in the Court's Jury Charge, and Chapter. 151 of The Texas Insurance Code, Maxim is
not entitled. to reimbursement of Maxim's Defense Fees, Costs, and Expenses of and from Berkel;
The Court hereby renders judgment for Berkel against Maxim on Maxim's Cross Action.

All relief not expressly granted by this Judgment is denied. This judgment is final,

disposes of all claims and parties, and is appealable.

The Court orders execution to issue for this .Tudg1nent.

SIGNED this _l!__ day of~2015.

HONOi\ E,JijjjGE TERRI HOLDER

3

Exhibit A
 CAUSE NO. 75576-CV

TYLER LEE Al""D LEIGH ANN LEE § IN THE DISTRICT COURT OF
INDIVIDUALLY AND AS NEXT FRIEND §
OF SYDNEY ROSE LEE, MINOR §
§
Plaintiff §
§
VS. § BRAZORIA COUNTY, TEXAS
§
BERKEL & COMPANY CONTRACTORS, §
INC., MAXIM CRANE WORKS, L.P., DIXON §
EQUIPMENT SERVICES, INC., FLOYD §
DIXON, ISAAC DOLAl"", JAMES DAVInSON §
ANDREW BENNETT, AND LINK-BELT §
CONSTRUCTION EQUIPMENT CO. §
§
Defendants § 149TH JUDICIAL DISTRICT

MAXIM'S SUPPLEMENTAL MOTION FOR ENTRY OF JUDGMENT ON
MAXIM'S CROSS ACTION AGAINST BERKEL

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, MAXIM CRANE "YORKS, L.P. a Defendant in the above numbered

and referenced matter (hereinafter "Maxim") and files this Supplemental Motion for Entry of

Judgment on Maxim's Cross Action Against Berkel, and in support thereof would respectfully

show as follows:

1.

At the post-verdict hearings held on June 8, 2015, Berkel again, through a Motion for

JNOY, a Motion to Disregard, and a Motion for Entry of Judgment, asked the court to fmd

that Berkel is entitled to the workers' compensation bar to suit and that the Lees' claims

and verdict against Berkel should, as a matter oflaw, be disposed of by the court-i.e. that

the Lees should take nothing of and from Berkel (hereinafter may sometimes be referred to

as "Berkel's Comp Bar Argument"). The court has taken Berkel's arguments under

Exhibit B
advisement; thus, the reason why Maxim has fIled this Supplemental Motion for Entry of

Judgment on Ma.x:im's Cross Action Against Berkel.

II.

Maxim hereby adopts and incorporates by reference, as if the same was fully set forth

herein below, its previously filed Motion for Entry of Judgment as to lvlaxim's Cross Action

Against Berkel (and Exhibits), which was filed on or about June 4, 2015. Hereinafter referred to

as the "Original Motion for Entry of Judgment." The Original Motion for Entry of Judgment was

based upon the facts and status of the case that existed at the time said pleading was filed.

Specifically, that Berkel was not considered Mr. Lee's employer for purposes of the Texas

Worker's Compensation Act, and so did not have the benefit of the workers compensation bar to

suit by the Lees. Under that set of circumstances and facts, Maxim acknowledges that pursuant

to Chapter 151 of the Texas Insurance Code (the Texas Anti-Indemnity Act) it would not be

entitled to indemnity of and from Berkel; however, Maxim is of the opinion that it would be

entitled to its defense costs of and from Berkel, but only to the extent caused in whole or in part

by any negligent act or omission or any intentional act of Berkel. See the language of Chapter

151 below:

Sec. 151.102. AGREEMENT VOID AND UNENFORCEABLE.

Except as provided by Section 151.103, a provision in a construction contract, or
in an agreement collateral to or affecting a construction contract, is void and
unenforceable as against public policy to the extent that it requires an indemnitor
to indernnify, hold hannless, or defend a party, including a third party, against a
claim caused by the negligence or fault, the breach or violation of a statute,
ordinance, governmental regulation, standard, or rule, or the breach of contract of
the indemnitee, its agent or employee, or any third party under the control or
C'~~"""''''''''-':7~C''~r\"n
J\,.j.p~l Y l..:J..lV.Ll
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V..l U..l .....
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-'--'--'-U.V.l..l..li.1..l ............. ,
nthpr th<;:ln t"hp. -i-nilp.rn-n-itnr nr -it~ '--"0
l..LU.U.-'- , ....'--'-v -'--'--'-............... -'--'-.'-'.1....., ... '-'-'-
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subcontractor of any tier. [Emphasis addedJ

Exhibit B
 In the Charge submitted to the jury by the court, MAXli\1 was assessed 10% responsible,

and BERKEL was assessed 90% responsible, in the negligence/liability questions. See Exhibit D,

herein. Therefore, it is Maxim's position that it is entitled to reimbursement of 90% of its

defense costs.

Contrary to Berkel's assertions, when the anti-indemnity provisions of Chapter 151 are

reviewed, the intent of the statute is clear, that is, to avoid both defense and indemnification and

additional insured clauses/provisions that purport to indemnifY the indemnitee/additional insured

for its own negligence or fault, but not void the indemnity provision in its entirety. The

indemnity provision is unenforceable to the extent that it requires the indemnitor to indemnify

the indemnitee for the indemnitee's negligence. The Bare Rental Agreement between Maxim

and Berkel does not require Berkel to defend and indemnifY Maxim for Maxim's own

negligence. Rather, the Agreement states Berkel shall do so "but only to the extent caused in

whole or in part by any negligent act or omission or any intentional act of Lessee (Berkel) ... "

However, in the event that this court, post-verdict, or some appellate court in the

future, agrees with Berkel's Comp Bar Argument and concludes that Berkel was Tyler

Lee's employer at the time of incident at issue and that, therefore, Berkel is entitled to the

workers' compensation bar to suit, that the Lees' claims and verdict against Berkel should,

as a matter of law, be dismissed, and that the Lees should take nothing of and from Berkel,

then it is Maxim's position that it is entitled to not only 90% of its defense costs, but also to

indemnity, of and from Berkel in the amount of the verdict returned by the jury in this

case. Chapter 151 supports Maxim's position as to indemnity under the above described facts

and circumstances. See the Exception to Chapter 151 set forth below:

Exhibit B
 Sec. 151.103. EXCEPTION FOR EMPLOYEE CLAIM.

Section 151.102 does not apply to a provision in a construction contract that
requires a person to indemnifY, hold harmless, or defend another party to the
construction contract or a third party against a claim for the bodily injury or death
of an employee of the indemnitor, its agent, or its subcontractor of any tier.

So, if Berkel is allowed to utilize the workers compensation bar to suit as a defense to the Lee

claims and verdict, then, pursuant to Chapter 151.103 and the Bare Rental Agreement, Berkel

would be considered Lee's employer, the exception to the Anti-Indemnity Statute would apply,

and Berkel would owe Maxim both defense and indemnity.

m.
Pursuant to its Original Motion for Entry of Judgment, Maxim submitted two proposed

Judgments for the Court to consider as to the defense costs issue--{)ne in favor of Maxim, and

one in favor of Berkel. At the June 8, 2015 post-verdict hearing, Maxim made its position as to

these proposed Judgments clear~either the court should enter the appropriate Judgment as a

the applicable wording of the appropriate Judgment and paste it into the Final Judgment that

the court ultimately elects to enter in the case.

H1
" .
However, in the event that the Court embraces Berkel's Comp Bar Argument and is

inclined to issue a ruling/Judgment accordingly, then Maxim attaches another proposed

Judgment for the court's consideration. See Extibit "A". Like the other two Judgments

previously proffered by Maxim, if the court elects to go with the Judgment attached as Exhibit

"A", then the Court should enter said Judgment as a "Partial Judgrnent" and do so before the

entry of the Final Judgment, or the Court should take the applicable wording of said Judgment

and paste it into the Final Judgment that the court ultimately elects to enter in the case.

Exhibit B
 The Judgment attached as Exhibit "A" permits Maxim, under the circumstance wherein

Berkel's Comp Bar Argument is embraced by the Court, to recover indemnity of and from

Berkel (pursuant to Chapter 151.103 and the Bare Rental Agreement) in the amount found by

the jury in their verdict from the trial ofthis case.

v. PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, lVIAXIlVI CRANE WORKS, L.P.,

prays that if the court is inclined to issue a Judgment in favor of Berkel on the workers

compensation bar to suit, then MAXlM moves the court to enter a Partial or Final Judgment in

accordance with the Judgment attached hereto as Exhibit "A," in the above numbered and

captioned matter; and for such other and further relief, both general and special, at law and in

equity to which MAXIM may otherwise be justly entitled.

Respectfully submitted,

J. DIAMOND & ASSOCIATES, PLLC

/s/ Jeffrey L. Diamond
Jeffrey L. Diamond
State BarNo. 05802500
Ann E. Knight
State Bar No. 00786026
1010 N. San Jacinto Street
Houston, Texas 77002
Tel: (713) 227-6800
Fax: (713) 227-6801
jeff@jdiamondandassociates.com
ann@jdiamondandassociates.com

Attorneys for Defendants:
Maxim Crane Works, L.P., and James Davidson

Exhibit B
 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the forgoing instrument was served upon
all known counsel of record via facsimile, hand delivery, and/or certified mail, return receipt
requested, on the 9th day ofJune, 2015.

Kurt B. Amold Andrew T. McKinney IV
ARNOLD & ITKIN D. Douglas Mena
6009 Memorial Drive LITCHFIELD CAvo LLP
Houston, TX 77007 One Riverway, Suite 1000
Houston, TX 77056

Charles Lloyd Clay, Jr. Jerry B. Dozier
CHUCK CLAY & ASSOCIATES, LLC. LAW OFFICE OF JERRY B. DOZIER
3280 Peachtree Road NE, Suite 2050 2318 Koster Road
Atlanta, GA 30305 Alvin, TX 77511

John Dwyer Russell S. Post
GORDON & REES, LLP Beck Redden LLP
633 West Fifth Street, 52 nd Floor 1221 McKinney, Suite 4500
Los Angeles, CA 90071 Houston, TX 77010

Steven D. Selbe Justin Gilbert
GoRDON & REES, LLP GILBERT & FUREY
1900 West Loop South, Suite 1000 222 North Velasco Street
Houston, TX 77027 Angleton, TX 77515

/S/ Jeffrey L. Diamond
Ann E. Knight

Exhibit B
·HI I

Exhibit B
 CAUSE NO. 75576-CV

TYLER LEE AND LEIGH Al~ LEE § IN THE DISTRICT COURT OF
INDIVIDUALLY AND AS NEXT FRIEND §
OF SYDNEY ROSE LEE, MINOR §
§
Plaintiff §
VS. § BRAZORIA COUNTY, TEXAS
§
BERKEL & COMPANY CONTRACTORS, §
INC., MAXIM CRANE WORKS, L.P., DIXON §
EQUIPMENT SERVICES, INC., FLOYD §
DIXON, ISAAC DOLAN, JAMES DAVIDSON §
ANDREW BENNETT, Aj"D LINK-BELT §
CONSTRUCTION EQUIPMENT CO. §
§
Defendants § 149TH JUDICIAL DISTRICT

JUDGMENT

On April 20 th, 2015, the Court called this case for trial. All parties appeared in person and

through their respective attorneys, and announced ready for trial. The Court summoned a jury

panel and a qualified jury of twelve (plus two alternates) was sworn to be the jury and that jury,

together with the Court, proceeded to hear the evidence with that jury retiring to consider the

verdict and thereafter returning its verdict into open court.

MAXIM CRANE WORKS, L.P. and JAMES DAVIDSON (collectively "MAXIM")

filed a cross action against BERKEL & COMPANY CONTRACTORS, INC., ("BERKEL")

on or about June 12, 2014, for breach of contract. MAXIM'S cross action was based upon the

Bare Rental Agreement between it and BERKEL. At the Jury Charge Conference, MAXIM

requested that a Breach of Contract question be submitted to the jury for consideration, but the

submission of same was objected to by BERKEL and sustained by the Court. A Breach of

Contract question was not submitted to the jury in the Court's Charge.

The jury returned a verdict that found both defendants negligent. In the Charge submitted

to the jury by the Court, MAXIM was assessed 10% responsible, and BERKEL was assessed

Exhibit B
90% responsible, in the negligence/liability questions. The Jury also found for the Plaintiffs in

the damages questions contained in the court's Jury Charge.

Whether MAXIM was entitled to reimbursement of its defense costs had previously

been submitted to the court for consideration via BERKEL'S Motion for Summary Judgment.

MAXIM filed responsive pleadings to BERKEL'S Motion and BERKEL, in tum filed a Reply

to same. On February 24, 2015, the Court issued an Order denying BERKEL'S Motion.

At the Charge Conference, BERKEL argued and the Court concluded, that MAXIM'S

cross claim should not be couched in terms of breach of contract, but instead was a question of

law to be decided pursuant to Chapter 151 of the Texas Insurance Code (the Texas Anti-

Indemnity Act). Accordingly, both BERKEL and MAXIM agreed that MAXIM'S defense

fees, costs and expenses should be submitted to the court for consideration outside the presence

of the jury and the same was submitted to the judge via sworn testimony on May 6th , 2015.

THEREFORE, THE COURT ORDERS THAT MAXIM'S claim for

reimbursement of its defense fees, costs and expenses is governed by Chapter 151 of the Texas

Insurance Code (the Texas Anti-Indemnity Act) and by the Bare Rental Agreement entered

into by MAXIM and BERKEL, and is a question oflaw for the court.

THEREFORE, THE COURT FURTHER ORDERS THAT MAXIM'S defense

fees, costs and expenses are as follows:

Attorney's fees-- $327,000.00;

Expert witness expenses/costs-- $121,800.00;

Miscellaneous expenses!costs-- $30,000.00; and

Trial expenses/costs-- $41,695.00

TOTAL DEFENSE FEES, COSTS Al~D EXPENSES $540,495.00

The COURT ADDITIONALLY ORDERS that pursuant to the jury's findings as to the

negligence questions in the Court's Jury Charge, the Bare Rental Agreement between BERKEL

Exhibit B
and MAXIM, and Chapter 151 of The Texas Insurance Code, BERKEL is to reimburse Maxim

90% of MAXIM'S TOTAL DEFENSE FEES/EXPENSES/COSTS, which amounts to

$486,445.50.

The COURT ADDITIONALLY ORDERS that pursuant to its decision(s) regarding

BERKEL'S request for relief under the Texas Workers' Compensation Act's bar to suit,

MAXIM'S claim for indemnity is governed by the Bare Rental Agreement entered into by

MAXIM and BERKEL, and Chapter 151.103 of the Texas Insurance Code (the Texas Anti-

Indemnity Act), and is a question oflaw for the court.

Accordingly, the COURT ORDERS that pursuant to the jury's findings as to the

negligence and damages questions in the Court's Jury Charge, the Bare Rental Agreement

between BERKEL and MAXIM, and Chapter 151.103 of The Texas Insurance Code, BERKEL

is to indemnify and pay Maxim the sum of $3,444,300.60, which is the amount of the verdict the

jury returned against Maxim.

THE COURT DENIES an further relief not granted in this judgment.
SIGNED this ___ day ofJune, 2015.

HONOR".BLE JUDGE TERF..1 HOLDER

Exhibit B
 Filed for Record
7/17/2015 1:44:05 PM
Rhonda Barchak, District Clerk
Brazoria County, Texas
75576-CV
Kelley Hanson, Deputy

CAUSE NO. 75576-CV

TYLER LEE AND LEIGH ANN LEE, § IN THE DISTRICT COURT
INDIVIDUALLY AND AS NEXT §
FRIEND OF SYDNEY ROSE LEE, §
MINOR §
§
Plaintiffs §
§
v. § BRAZORIA COUNTY, TEXAS
§
BERKEL & COMPANY §
CONTRACTORS, INC., MAXIM §
CRANE WORKS, L.P., DIXON §
EQUIPMENT SERVICES, INC., FLOYD §
DIXON, ISAAC DOLAN, JAMES §
DAVIDSON, ANDREW BENNETT, §
AND LINK-BELT CONSTRUCTION §
EQUIPMENT CO. §
§
Defendants § 149TH JUDICIAL DISTRICT

NOTICE OF ORAL HEARING

PLEASE TAKE NOTICE that Berkel & Company Contractors, Inc.’s Amended

Motion for New Trial and Motion for Remittitur has been set for Monday, August 31,

2015 at 9:00 a.m. in the 149th District Court, Brazoria County, Texas.

Respectfully submitted,

/s/ Thomas C. Wright
Thomas C. Wright
State Bar No. 22059400
Jessica Z. Barger
State Bar No. 24032706
Garrett A. Gibson
State Bar No. 24069024
WRIGHT & CLOSE, LLP
One Riverway, Suite 2200
Houston, TX 77056

Exhibit C
713-572-4321
713-572-4320 (fax)
wright@wrightclose.com
barger@wrightclose.com
gibson@wrightclose.com

ATTORNEYS FOR DEFENDANTS
BERKEL & COMPANY CONTRACTORS,
INC AND ANDREW BENNETT

Exhibit C
 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of this document was served on all
counsel of record in this case, identified below, on July 17, 2015, electronically through
the electronic filing manager and or via facsimile in compliance with the Texas Rules of
Civil Procedure:

Kurt B. Arnold Charles “Chuck” L. Clay, Jr.
M. Paul Skrabanek CHUCK CLAY & ASSOCIATES
ARNOLD & ITKIN LLP 225 Peachtree Street, N.E., Suite 1700
6009 Memorial Drive Atlanta, GA 30303
Houston, TX 77007 Chuck@chuckclay.com
713-222-3850 (fax)
e-service@arnolditkin.com

Ann E. Knight John D. Dwyer
J DIAMOND AND ASSOCIATES GORDON & REES LLP
PLLC 633 West Fifth street, 52nd Floor
1010 N. San Jacinto Los Angeles, CA 90071
Houston, TX 77002 213-680-4470 (fax)
713-227-6801 (fax)
ann@jdiamondandassociates.com

Steven D. Selbe
GORDON & REES, LLP
1900 West Loop South, Suite 1000
Houston, TX 77027
713-961-3938 (fax)
sselbe@gordonrees.com

Thomas C. Wright
Thomas C. Wright

Exhibit C