SOUTHEAST TEXAS RECORD

A recent Texas Supreme Court ruling might shield companies from ongoing and future lawsuits brought by contracted workers alleging asbestos exposure during work performed on their premises.

On Friday, May 8 justices held that Chapter 95 of the Texas Civil Code applies to all independent contractor claims for damages caused by a property owner’s negligence when the requirements of section 95.002(2) are satisfied.

Chapter 95 relates to limitations on a property owner’s liability for injury, death, or property damage to an independent contractor. Section 95.002(2) applies only to a claim that arises from the condition or use of an improvement to real property where the contractor or subcontractor constructs, repairs, renovates, or modifies the improvement.

The high court’s ruling stems from a suit brought by the family of Robert Henderson against several defendant companies, including Dow Chemical.

Henderson, a pipeline insulation worker who died of mesothelioma, was allegedly exposed to asbestos-containing products while working as an independent contractor at Dow’s Freeport facility, court records show.

At trial, a Dallas County jury found Dow negligent and attributed 30 percent of the responsibility for Henderson’s injuries to the company.

In turn, the trial court rendered a $2.64 million judgment against Dow, court records show.

Citing Chapter 95, Dow appealed, arguing there was no evidence at trial that Dow had both control over Henderson's work and actual knowledge of the danger or condition resulting in his illness.

The appellate court found in favor of Dow, reversing the trial court’s judgment and rendering a take-nothing judgment, which led to the Henderson family petitioning the Texas Supreme Court.

“The court of appeals correctly held that Chapter 95 applies to independent contractors’ claims against property owners for damages caused by negligence when those claims arise from the condition or use of an improvement to real property where the independent contractor constructs, repairs, renovates, or modifies the improvement,” states the high court’s opinion.

“Chapter 95 limits property owner liability on claims for personal injury, death, or property damage caused by negligence, including claims concerning a property owner’s own contemporaneous negligent activity.

“The Hendersons have not challenged the court of appeals’ conclusion that Chapter 95 applied to their specific claims as pleaded, nor have they challenged the court of appeals’ conclusion that they failed to establish Dow’s liability under section 95.003. We therefore affirm the court of appeals’ judgment that reversed the trial court’s judgment and rendered a take-nothing judgment in Dow’s favor.”

Section 95.003 states a property owner is not liable unless the property owner exercises or retains some control over the manner in which the work is performed, other than the right to order the work to start or stop or to inspect progress or receive reports.

From 1967 to 1968, Henderson, a Win-Way employee at the time, assisted with pipe insulation work at Dow’s Freeport facility.

In hopes of defeating the Chapter 95 argument, the Henderson plaintiffs had argued their claims against Dow were based solely upon the negligent activities of Dow employees, and not from injury arising from the condition or use of an improvement of real property.

“The Court of Appeals’ Opinion runs directly afoul of the statutory language in Chapter 95 as well as this Court’s precedent,” states the Henderson family’s petition for review.

“If left unreviewed, the Opinion will transform Texas jurisprudence by eliminating common law negligence claims by an independent contractor for the contemporaneous negligent activity of a property owner.”

The Henderson family is represented by Baron & Budd attorneys Denyse Clancy, John Langdoc and Christine Tamer.

Dow is represented in part by Dallas attorney David Herrick.

Supreme Court case No. 13-0175