Faulk Management Services v. Lufkin Industries, Inc.

OPINION

BURGESS, Justice.

Faulk Management Services initiated this action for declaratory judgment in which it sought a court ruling that it has no duty to indemnify and defend Lufkin Industries, Inc., pursuant to a written agreement between the parties. Both parties filed motions for summary judgment. The trial court granted Lufkin’s motion and entered judgment declaring that the contract requires Faulk to indemnify and defend Lufkin in an underlying suit styled No. 26,473-92-12, Alta V. Harrison v. Lufkin Industries, Inc. Faulk’s two points of error aver: 1) the trial court erred in granting Lufkin’s motion for summary judgment, and 2) the trial court erred in denying Faulk’s motion for summary judgment.

Faulk provides janitorial services. Alta V. Harrison is Faulk’s employee. She sustained an on-the-job injury while working on Luf-kin’s premises. Harrison sued Lufkin, alleging Lufkin was negligent because it failed to provide a safe place to work, failed to secure, replace, or remove a defective gate which fell on top of her, failed to inspect the workplace, and failed to warn of hidden danger. Luf-kin’s demand for defense and indemnity is based upon a contract between Faulk and *478Lufkin for “blanket purchase order to cover all janitorial services and supplies from February 2,1990 through February 1,1991... This agreement includes the following:

HOLD HARMLESS AGREEMENT
LUFKIN INDUSTRIES, INC. will exercise no control or right of control over the employees or details of the work. Contractor is to furnish his own tools and Lufkin Industries is interested only in the final results of the completed contract. Contractor is doing the work under contract and is an independent contractor and not an employee of the company.
By signing the below statement, the seller agrees to protect, defend, indemnify, and save harmless Lufkin Industries, Inc. against loss, damage, or expense by reason of any suits, claims, demands, or judgment and causes of action caused by the seller, its employees, agents or any subcontractor arising out of or in consequence of the performance of this contract.
It is the intention of the Seller and/or Contractor to indemnify Lufkin Industries, Inc. even in the event that any such claims, demands, actions or liability arises in whole or in part from warranties, express or implied, defects in materials, workmanship or design, condition of property or its premises and/or negligence of Lufkin Industries, Inc. or any other fault claims as a basis of liability for Lufkin Industries, Inc.

A party seeking indemnity for its own negligence must express that intent in specific terms within the four comers of the contract. HL & P Co. v. Atchison, Topeka, & Santa Fe Ry., 890 S.W.2d 455, 457-459 (Tex.1994); Ethyl Corp. v. Daniel Construction Co., 725 S.W.2d 705, 708 (Tex.1987). The issue is a question of law. Id. at 708; Fisk Elec. v. Constructors & Associates, 888 S.W.2d 813 (Tex.1994). Appellant contends the agreement fails to meet the express negligence test because the part of the agreement which applies to “Seller” is inoperable because appellant provided services rather than goods. This argument is without merit, as there are clearly two parties to the agreement, Faulk and Lufkin, and the indemnifying party, whether called Seller or Contractor, is undeniably Faulk.

Appellant likewise maintains the agreement fails the express negligence test because the second paragraph of the agreement provides for indemnification only to “suits, claims, demands, or judgment” which are “caused by the seller," and the injury was caused by Lufkin, not by Faulk. Read in its entirety and in context, the second paragraph expresses an intent that Faulk defend and indemnify Lufkin against loss, damage or expense, and against causes of action. The third paragraph does not limit indemnification to claims “caused by” Faulk. We reject appellant’s argument that the third paragraph does not include personal injury claims, as it clearly covers claims arising from negligence. We hold the terms of the agreement, “[i]t is the intention of the Seller [Faulk] ... to indemnify [Lufkin] even in the event that ... liability arises in whole or in part from ... condition of property or its premises and/or negligence of [Lufkin]” meet the express negligence test. Furthermore, the second and third paragraphs do not limit each other, but, read together, provide for both defense and indemnity for liability arising out of performance of the contract even if wholly caused by Lufkin’s negligence.

Appellant also contends that the agreement is void because it fails to meet the “workers compensation bar” provided by the statutory law in effect at the time of the accident. Tex.Rev.Civ.Stat.Ann. art. 8306 § 3(d) (Vernon Supp.1989) (repealed). Article 8306 § 3(d) provided that if a personal injury action by an employee against a third party resulted in judgment or settlement, no subscriber shall have any liability to reimburse or hold harmless “in the absence of a written agreement expressly assuming such liability, executed by the subscriber prior to such injury or death.” Acts 1983, 68th Leg., R.S., ch. 131, 1983 Tex.Gen.Laws 613, repealed, see now Tex.LaboR Code Ann. § 417.004 (Vernon Pamph.1995). Appellant argues the agreement does not provide an express description of liability for injuries to employees, citing Enserch Corp. v. Parker, 794 S.W.2d 2, 7-9 (Tex.1990), and Verson *479Allsteel Press Co. v. Carrier Corp., 718 S.W.2d 300, 301-302 (Tex.App.—Tyler 1985, writ ref'd n.r.e.). The agreement in this case is very similar to the agreements in Enserch and Verson, both of which were held sufficient to meet the statute. In Enserch the term “persons” included employees of the indemnitor. In Verson the court held the statute did not require the indemnity agreement to include language which specifically referred to the indemnitor’s employees. Faulk agreed to protect against liability arising in consequence of the performance of the contract, even if Lufkin was wholly negligent. We find no reasonable basis upon which to distinguish Enserch from the case before us. We overrule the points of error and affirm the judgment.

AFFIRMED.