The SE Texas Record Jun. 24, 2015, 12:07pm


By DAVID YATES

The Texas Supreme Court recently commanded a Dallas District Court to wipe away a $2.64 million asbestos verdict against Dow Chemical.

In January, justices heard oral arguments in the case of Magdalena Abutahoun et al v. Dow Chemical and were tasked to decide whether Chapter 95 of the Texas Civil Code prevents Dow Chemical’s alleged liability.

Chapter 95 states a property owner is not liable for injury, death, or property damage to a contractor for failure to provide a safe workplace, unless the property owner exercises or retains some control or had actual knowledge of the danger and failed to adequately warn.

The issue the Supreme Court had to decide was a property owner’s liability for independent contractors, opining on May 8 that an appellate court was right to hold plain meaning of the text of Chapter 95 does not preclude its applicability where a claim is based upon negligent actions of the premises owner.

“The sole issue in this appeal is whether Chapter 95 applies to an independent contractor’s negligence claims against a property owner when the claims are based on injuries arising out of the property owner’s negligent activities and not the independent contractor’s own work,” states the high court’s opinion.

“Applying the plain meaning of the statute, we hold that Chapter 95 applies to all independent contractor claims for damages caused by a property owner’s negligence when the requirements … are satisfied.”

Justices affirmed the court of appeals’ judgment, which reversed the trial court’s judgment and rendered a take-nothing judgment in Dow’s favor.

However, court records show that on June 18 the Supreme Court had to issue a mandate to the trial court, the 160th District Court of Dallas County, to obey the ruling.

“Wherefore we command you to observe the order of our said Supreme Court in this behalf, and in all things to have recognized, obeyed, and executed,” the mandate states.

The case stems from a suit brought by Robert Henderson, now deceased.

Court records show that on June 11, 2010, Henderson, 68 at the time of his death, filed suit in Dallas County District Court against more than a dozen defendants, including Dow Chemical.

Henderson, an insulator helper contractor, alleged he was exposed at Dow Chemical’s Freeport facility from 1967-1968 while tearing off asbestos insulation.

At trial, a jury found Dow Chemical was 30 percent at fault for Henderson’s asbestos-related cancer, levying a $9 million verdict.

On Aug. 16, 2011, the trial court entered a second amended final judgment of $2.64 million.

The Fifth District Court of Appeals reviewed the award and reversed the judgment, finding that Chapter 95 barred the plaintiffs’ claim based on Dow Chemical’s alleged negligence as the premise owner.

In their appellate brief, the plaintiffs contend that even though Chapter 95 was enacted 18 years ago, the Texas Supreme Court has never analyzed the scope of Chapter 95’s applicability.

“Commentators on both sides of the bar have remarked on the need for this Court’s review and the increasing unlimited expansion of the applicability of Chapter 95 by the courts of appeal,” the brief states.

Baron & Budd attorneys Denyse Clancy, John Langdoc and Christine Tamer are representing the plaintiffs.

Dow is represented in part by Stephen Tipps, attorney for the Houston law firm Baker Botts.

Supreme Court case No. 13-0175

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