Opposition Brief — Woodson Construction Co. v. Amoco Pipeline Co.

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NO. 94-94

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1994

WOODSON CONSTRUCTION COMPANY

Petitioner,

Vv.

AMOCO PIPELINE COMPANY,

Respondent.

On Petition For Writ of Certiorari To

The United States Court of Appeals

For the Fifth Circuit

RESPONDENT'S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

EDWARD J. MURPHY

GERARD J. KIMMITT, II

BELL AND MURPHY

1300 Post Oak Boulevard

20th Floor

Houston, TX 77056

(713) 871-6700

Attorneys of Record

for Respondent

Alpha Law Brief Company © Houston, Texas @ (713) 981-9000 ¢ 1-800-981-9001

BEST AVAILABLE COPYE

QUESTIONS PRESENTED FOR REVIEW

Pursuant to Rule 24.2, Supreme Court Rules,

Respondent, Amoco Pipeline Company, disagrees with and

does not adopt the Questions as stated by Petitioner,

Woodson Construction Company. Rather, Amoco believes

the Questions Presented should be worded as follows:

Whether Petitioner was deprived of its right to procedural

due process where (a) this case was tried on stipulated facts,

and (b) the Court of Appeals reversed and remanded for

entry of judgment against Petitioner, based in the alternative

upon a fact finding which, although not a part of the

stipulated facts before the trial court, was judicially admitted

in Petitioner’s pleadings before the appellate court and

further was a fact upon which Petitioner specifically rejected

an opportunity to have the appellate court remand the case

for determination at the trial level.

CERTIFICATE OF INTERESTED PARTIES AND

PARTIES BELOW

Respondent Amoco Pipeline Company adopts

the Certificate of Interested Parties and Parties Below as

stated by Petitioner Woodson Construction Company.

The following information may also assist the

Court. The parent of Respondent, Amoco Pipeline Company,

is Amoco Company, which is a wholly-owned subsidiary of

Amoco Corporation.

ill

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ....... i

CERTIFICATE OF INTERESTED PARTIES AND

EE a a a li

ee a ie Gls eles « « lil

ee i cies hc te te ee ee es Vv

OPINION SOUGHT TO BE REVIEWED ....... Vill

STATEMENT OF JURISDICTION ........... Vill

STATE) Gr Tie CASE ............... l

A. Amoco’s Restatement of the

NN a Sg l

B Amoco’s Summary of Relevant

EFAS PR pend Reo & Oe ee ae ae ca ay a 2

CA Proceedings Before The Fifth Circuit:

Where The Stipulation and the Waiver

ro a aks -y ae Se ae 6 4 8 5

IE a) ENS PTE RG AWA TEES. 7

I. BY JUDICIALLY ADMITTING THAT

REMOVAL FOR A FACT FINDING ON

THE ISSUE OF ACTUAL NOTICE OR

KNOWLEDGE WAS UNNECESSARY,

WOODSON STIPULATED TO THOSE

FACTS AND SIMULTANEOUSLY

WAIVED ANY RIGHT TO HAVE A JURY

Re re ee eee 7

Il. THE DOCTRINE OF INVITED ERROR

BARS ANY REVIEW OF WOODSON’S

PURPORTED LACK OF OPPORTUNITY

TO LITIGATE THE NOTICE QUESTION .. 11

II. ©WOODSON’S PETITION IS FATALLY

DEFECTIVE BECAUSE IT ADDRESSES

ONLY ONE OF THE TWO INDEPENDENT

BASES FOR THE FIFTH CIRCUIT’S RUL-

jo ee ee ee ae re 14

IV. THE APPELLATE COURT’S INTERPRE-

TATION OF THE CONTROLLING STATE

LAW IS NOT CLEARLY ERRONEOUS,

AND THEREFORE, IS NOT REVIEWABLE

BY Whar Ge Clemo we, 16

V. WOODSON OFFERS NO "SPECIAL AND

IMPORTANT REASONS" FOR GRANTING

DISCRETIONARY REVIEW OF THIS

CASE, AND NO SUCH REASONS EXIST . 18

SUMMARY AND CONCLUSION ........... 20

SIGLSEE SSP UGE ot tt ew eee es 23

TABLE OF AUTHORITIES

Cases:

American Title Ins. Co. v. Lacelaw Corp.,

ee ee Fo Le | 8

Bellmore v. Mobil Oil Corp.,

Fae ee ee Ge Ge BSG) nw wc ccc ees 9

Bush v. Allstate Ins. Co.,

425 F.2d 393 (Sth Cir.), cert. denied,

400 U.S. 833, rhr’g denied, 400 U.S.

I ete ee Se i oe ee Y

Byrd v. Blue Ridge Rural Elec. Co-Op, Inc.,

ee he reer 10, 11, 16

Casperone v. Landmark Oil & Gas Corp.,

Pat ome Sa A, OED ow eco wes 9

City Nat’l Bank v. United States,

ee bs le ae. 8

Ethyl Corp. v. Daniel Constr. Co..,

725 S.W.2d 705 (Tex. 1987) ........ 3, 14, 15

Glassman Const. Co. v. U.S.,

G2t F.2e Bee Ge ek ave a Sw ee 14

Vii

Harvis v. Roadway Express, Inc.,

973 F.2d 490 (6th Cir.), cert. granted

in part, Landgraf v. USI Film Products,

___ U.S. __, 113 S.Ct. 1250, 122 L.Ed.

2d 649 (1993), aff'd sub nom,

Rivers v. Roadway Express, Inc.,

__ U.S. __, 114 S.Ct. 1510,

128 L.Bb.26 PO IGP). we ccc ec wes 13

Harvis v. Roadway Express, Inc.,

923 F.2d 59 (6th Cir. 1991) ....... 12, 13, 14

Illinois Cent. R. Co. v. Egan,

203 F. 937 (8th Cir. 1913) .......-.---- 14

Layne & Bowler Corp. v. Western Well Works,

y BIR Re gi) <P ere ee eee 20

Lovelace v. Dall,

820 F.2d 223 (7th Cir. 1987) .......-.-. 9, 10

MAN GHH Logistics Gmbh v. Emscor, inc.,

858 S.W. 2d 41 (Tex. App.- Houston

[14th Dist.] 1994, n.w.h.) 2.2... eee eee 18

Oscanyan v. Arms Co.,

503 03.5. DO1 CUBR) 0 ww cw cere eees 8

Page Petr., Inc. v. Dresser Indus. Inc.,

853 S.W.2d 505

ae. ree 4, 14, 15, 17, 21

Palmer v. Hoffman,

) Rik Se Fi, Ss) res eee 17

Vili

Plastic Container Corp. v. Continental

Plastics of Oklahoma, Inc. , 607

fo 8) oer ee 8

Propper v. Clark,

Be ie Oe se POR EERE 17

Rice v. Sioux City Memorial Park Cemetery,

er 19

Sewell v. Jefferson County Fiscal Court,

863 F.2d 461 (6th Cir.), cert. denied,

oe ee i Se ee eee 9

Taylor v. Freeland & Kronz,

U.S. , 112 S.Ct. 1644,

SSD Gncee ee SO CUPPED 65 8 Sea ee 15

The TUNGUS v. Skovgaard,

ee ee ee a eee 17

United States v. Durham Lumber Co..,

See Ue See 6 ie bk Oe es Cewek 17

United States v. Moore,

Pe a ee ee 6 8c a 82 PIMA CNSR 8

Young & Vann Supply Ce. v. Gulf,

F. & A. R. Co., 5 F.2d 421

ey eae Ss 5 0 oes wrk sd ee © ews 8

Statutes:

es A kv sc oh CPUS AA... 19

Rules:

Rule 10, Supreme Court Rules .......... 18-20, 22

Rule 14.1(a), Supreme Court Rules ..........-.-- 15

Rule 15, Supreme Court Rules .........-----+-- l

Ste Sota. Ped. Be CIV. Fw eee 2)

OPINION SOUGHT TO BE REVIEWED

Respondent Amoco adopts the statement of

Petitioner Woodson concerning the opinion sought to be

reviewed. Amoco also adopts the verbatim reproductions of

the trial court opinion, the appellate court opinion and the

appellate court’s denial of rehearing, which are reproduced

in the Appendix to the Petition for Writ of Certiorari.

STATEMENT OF JURISDICTION

Respondent Amoco adopts the statement of

jurisdiction contained in the Petition for Writ of Certiorari.

—

NO. 94-94

IN THE

Supreme Court of the Cnited States

OCTOBER TERM, 1994

WOODSON CONSTRUCTION COMPANY

Petitioner,

Vv.

AMOCO PIPELINE COMPANY,

Respondent.

On Petition for Writ of Certiorari To

The United States Court of Appeals

For the Fifth Circuit

RESPONDENT'S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

STATEMENT OF THE CASE

A. Amoco's Restatement of the Case

Woodson's Statement of the Case as it pertains

to the course of the proceedings and the disposition in the

district court is generally correct with respect to the

underlying facts; however, it is not complete. Rule 15 of the

Supreme Court Rules requires Amoco to point out the

misstatements of fact and law that pertain to the "Questions

Presented" by Petitioner.

Woodson failed to disclose that it had filed

briefing with the Fifth Circuit specifically rejecting any need

for remand for an opportunity for a jury trial or other fact

finding. After making that election below, Woodson cannot

now be heard to complain of a denial of due process.

More specifically, Woodson failed to point out

to this Court that Amoco (not it) initially sought remand to

the trial court on the matter in issue. In rejecting that

opportunity, Woodson specifically told the Fifth Circuit that

remand "would be uncalled for" and "any remand for a fact

finding would be a useless act." (Petition at 224a and 227a,

respectively).

In reliance on Woodson’s unequivocal waiver

of any right it might have had to a remand, Amoco changed

the relief it sought before the Fifth Circuit. In particular,

Amoco dropped its request for remand on the issue of

Woodson’s actual notice or knowledge of the indemnity

agreement and asked the appellate court to reverse and

render judgment, since (by Woodson’s own admission) there

was no fact issue in need of determination.

Woodson now seeks to reverse field and to

have this Court relieve it of the effects of its election below.

By its Petition, Woodson urges that its due process rights

were violated by a denial of the opportunity for a jury trial

on the precise issue (1) for which it had already informed the

Fifth Circuit that no fact finding was necessary, and (2) upon

which it had stipulated that the record was already complete.

B. ‘ levant F.

A brief recitation of the factual history of the

case is necessary. Woodson and Amoco entered into a

contract calling for Woodson to construct new pipelines in

the Houston, Texas, area. During the construction of these

pipelines, an explosion occurred injuring three of Woodson’s

employees. All three filed personal injury lawsuits against

Amoco. Woodson then intervened in one of the underlying

suits seeking recovery for damage to its equipment. Amoco

cross-claimed against Woodson seeking contractual

indemnity. Amoco never sought indemnity for its alleged

negligence, but only for, and to the extent of, Woodson’s

negligence.

Amoco subsequently settled all three personal

injury claims as well as other claims for property damage.

Woodson stipulated that the total amount of $6.025 million

paid by Amoco in these settlements, including attorneys’ fees

and costs, was reasonable. (Petition 15a).

The parties further stipulated that they were

each 50% responsible for the underlying incident (Petition

15a) and submitted to the district court the limited question

of whether Woodson was contractually required to reimburse

Amoco for that portion of the settlement sums attributable to

Woodson’s stipulated liability. The trial court entered

judgment for Woodson ruling that Amoco take nothing based

on its interpretation that the contract at issue did not comport

with Texas substantive law, specifically that the indemnity

language failed to meet the express negligence test announced

by the Texas Supreme Court in Ethyl Corp. v. Daniel

Constr. Co., 725 §.W.2d 705 (Tex. 1987).'

| ‘The trial court’s Findings of Fact and Conclusions of Law as

well as its Final Judgment are reproduced as Appendices "F" and “C*

Amoco appealed and the Fifth Circuit Court of

Appeals reversed and remanded for entry of judgment in

light of its opinion.? The appellate court held Amoco’s

contractual indemnity claim meritorious precisely because

Amoco was not seeking recovery for its own negligence, but

rather only for that percentage of fault stipulated to by

Woodson.

In support of that ruling, the appellate court

found: (1) that the contract was a valid indemnity agreement

meeting the requirements of Texas substantive law including

the Ethyl express negligence test; and (2) that the recent

Texas Supreme Court decision in Page Petr., Inc. v. Dresser

Indus. Inc.*, specifically permitted recovery in an indemnity

situation where, as in this case, the indemnitor has actual

notice or knowledge of its indemnity obligation. The Fifth

Circuit expressly relied upon the uncontroverted and

stipulated-to testimony of Petitioner’s President, Louis

Woodson, when concluding that Amoco met the latter notice

standard.

respectively to the Petition.

2 The appellate court opinion is reproduced as Appendix "A" to

the Petition.

3-853 S.W.2d 505 (Tex. 1993).

Proceedings Before The Fifth Circuit:

Wh ipulati nd the Waiver rr

Several critical facts of the appellate process

were also not detailed in Petitioner's Brief. Initially,

Amoco’s Appellant’s Brief before the Fifth Circuit sought

remand for a fact finding on the issue of whether Woodson

had actual notice or knowledge of the indemnity agreement

(the very issue upon which Woodson now assigns error).

(Petition 179a, 182a).

In its Appellee’s Brief, Woodson specifically

informed the Fifth Circuit that remand was not necessary

because the extent of Woodson’s notice or knowledge had

already been established and "therefore any remand would

be uncalled for." (Petition 224a). Woodson went on to cite

the very pages of Louis Woodson’s deposition that Amoco

referenced in its Brief (and the Fifth Circuit also relied upon

in its Opinion) and again stated: "Furthermore, as noted

by Amoco on Page 10 of its brief, the extent of Woodson’s

notice and knowledge of the indemnity clause already

appears in the record (R.I. 1073-71). Thus any remand

for a fact finding would be a useless act." (Petition 227a).

In reliance on Woodson’s admission that no

fact finding was necessary, Amoco changed the relief it

sought, asking the appellate court to reverse and render,

rather than remand. (See Amoco’s Reply Brief, attached as

Appendix, infra, A).

At no time prior to the issuance of an adverse

ruling from the Fifth Circuit did Woodson ever raise this

issue or even suggest to the intermediate court that remand

was necessary, despite several opportunities to do so. For

example, after Amoco filed its Reply Brief but prior to the

issuance of the Opinion, Woodson amended the record and

filed a letter advising the Fifth Circuit of recent Texas case

law which it felt was beneficial to its position (Appendix,

infra, B). No mention was made of the need for any fact

findings at that time.

Amoco then filed a Letter Brief in reply

pointing out that the decision, cited by Woodson, in reality

favored Amoco’s position, a conclusion that the Fifth Circuit

ultimately upheld to Woodson’s chagrin. (Appendix, infra,

C). Still, Woodson failed to mention that it believed that a

trial or a fact finding would be necessary in this matter.

Following oral argument, the Fifth Circuit

reversed the judgment in favor of Woodson and remanded

the case to the district court for entry of judgment. Unhappy

with the interpretation of the Texas case law it relied upon,

Woodson next asked the Fifth Circuit to certify a question of

law to the Texas Supreme Court. That request was denied.

(Petition 8). Woodson’s subsequent Petition for Rehearing

before the Fifth Circuit was also denied. (Petition Appendix

B).

Woodson now seeks discretionary review

before this Court based on the "denial" of the right to a jury

trial it had previously waived, over "facts" about which the

record is undisputed.

AR N

BY JUDICIALLY ADMITTING THAT

REMOVAL FOR A FACT FINDING ON

THE ISSUE OF ACTUAL NOTICE OR

KNOWLEDGE WAS UNNECESSARY,

WOODSON STIPULATED TO THOSE

FACTS AND SIMULTANEOUSLY

WAIVED ANY RIGHT TO HAVE A JURY

DECIDE THE ISSUE.

Woodson’s sole point of error before this

Court boils down to the argument that it was denied a right

to a jury trial on the fact question of whether it had actual

notice or knowledge of the indemnity language in its contract

with Amoco. Woodson is incorrect as a matter of law.

As pointed out previously, Woodson’s judicial

admission in its briefing before the Fifth Circuit constitutes

a stipulation of its actual notice and knowledge upon which

the appellate court was entitled to, and expressly did, rely.

(Petition 5a). Consequently, there is no disputed issue of

material fact requiring a fact finding.*

Of course, Woodson also admitted as much

when it told the Fifth Circuit that "any remand for a fact

finding [on the notice issue] would be a useless act."

(Petition 227a).

¢ In Woodson’s own words - "the extent of Woodson’s notice and

knowledge has already been established, therefore, any remand would

be uncalled for." (Petition 224a, emphasis added).

Although Woodson now attempts to limit the

scope of the stipulations of fact to those made at the trial

court level (Petition 11), it is axiomatic that federal appellate

courts may “appropriately treat statements in briefs as

binding judicial admissions of fact." City Nat’l Bank v.

United States, 907 F.2d 536, 544 (Sth Cir. 1990).°

Woodson cannot now be heard to complain that the Fifth

Circuit erred in taking Woodson at its word that the record

was clear that it had actual notice and knowledge of the

indemnity provisions, and accordingly, that no fact-finding

was necessary. Indeed, none could be needed precisely

because the "facts" could not be in dispute following

Woodson’s admission before the appellate court.

Even if this Court feels a fact question might

still exist, Woodson waived its right to a jury trial on that

issue when it specifically requested the appellate court not to

remand the case to the district court for such a fact finding.

By definition then, the failure to remand cannot rise to the

level of a deprivation of Woodson’s due process rights.

As this Court has previously explained, the

constitutional right to a jury trial can be waived. United

States v. Moore, 340 U.S. 616, 621 (1951). A jury trial can

> See also, Oscanyan v. Arms Co., 103 U.S. 261, 263 (1880) ("The

power of the court to act in the disposition of a trial upon facts conceded

by counsel is as plain as its power to act upon the evidence produced....

Indeed, any fact, bearing upon the issues involved, admitted by counsel,

may be the ground of the court’s procedure equally as if established by

the clearest proof."); American Title Ins. Co. v. Lacelaw Corp. , 861 F.2d

224, 227 (9th Cir. 1988) (Statements of fact contained in a brief may be

considered admissions of the party); Plastic Container Corp. v.

Continental Plastics of Oklahoma, Inc. , 607 F.2d 885, 906 (10th Cir.),

cert. denied, 444 U.S. 1018 (1980); and Young & Vann Supply Co. v.

Gulf, F. & A. R. Co., 5 F.2d 421, 423 (Sth Cir. 1925).

be waived even without withdrawing a jury demand.

Casperone v. Landmark Oil & Gas Corp., 819 F.2d 112,

116 (Sth Cir. 1987).

The test to determine whether a party has

waived its right to a trial by jury is less stringent than the

"intentional relinquishment or abandonment of a known right

or privilege" test applicable to other constitutional rights.

Bellmore v. Mobil Oil Corp., 783 F.2d 300, 306 (2d Cir.

1986); Bush v. Allstate Ins. Co., 425 F.2d 393, 396 (Sth

Cir.), cert. denied, 400 U.S. 833, rhr’g denied, 400 U.S.

985 (1970). In fact, this type of waiver can occur merely

through the inadvertence of counsel in its briefing® or

through a mistaken impression of the parties.’

Here, Woodson waived its right to a jury trial

by taking the position in its Fifth Circuit briefing that

"remand would be uncalled for" (Petition 224a) and that “any

remand for a fact-finding would be a useless act." (Petition

227a). In a remarkably similar case, the Second Circuit

upheld the waiver of a jury trial on specific issues based on

the position taken by one of the parties in its briefing before

the court. Bellmore, 783 F.2d at 306-07. See also, Lovelace

vy. Dall, 820 F.2d 223, 227 (7th Cir. 1987) (A waiver of a

jury trial by stipulation under Rule 39(a) “has been

interpreted broadly so as to encompass...briefs arguing that

the judge can decide certain matters as a legal question.")

and extensive cases cited therein.

6 Bellmore, 783 F.2d at 307; Bush, 425 F.2d at 395-96.

7 Sewell v. Jefferson County Fiscal Court, 863 F.2d 461, 465-66 (6th

Cir.), cert. denied, 493 U.S. 820 (1989).

As the Seventh Circuit explained, the principle

justifying this waiver rule is that it is fundamentally "unfair

to permit a party to have a trial, discover that it has lost, and

then raise the jury issue because it is unsatisfied with the

result...." Lovelace, 820 F.2d at 228.*

Of course, that is precisely what Woodson is

attempting to do in this case. Amoco, not Woodson,

requested the appellate court to remand this case if additional

fact findings were necessary. When it thought it was

winning, Woodson took the position in its briefing to the

Fii:* Circuit that there was no dispute about the extent of its

notice and knowledge and that a remand for trial on that

issue was unnecessary. Now that it lost that appeal it

belatedly attempts to resurrect its "right to a jury trial,"

seeking relief under this Court’s holding in Byrd v. Blue

Ridge Rural Elec. Co-Op, Inc., 356 U.S. 525 (1958).

As can be seen from the above discussion,

Byrd is inapplicable because of the unique facts and the

procedural posture of this case. For example, Byrd involved

a Situation where only one party submitted any evidence on

the issue in dispute and this Court could not plainly say that

the other side had agreed to submit the case on the basis of

that evidence only. 356 U.S. at 533. Here, Woodson’s

Fifth Circuit briefing not only cited evidence in the record,

it informed the appellate court that the extent of its notice

and knowledge of the indemnity agreement "already appears

in the record" and has therefore, “already been established."

* "[Tjhis is not primarily a matter of fairness to the other

party...[rather] the principal concern in this regard should be one of

judicial economy; court judgments should have meaning and effect instead

of being a futile exercise that one of the parties will be able to overturn

no matter what the result." Lovelace, 820 F.2d at 228.

(Petition 227a & 224a respectively). By that judicial

admission, Woodson removed itself from the factual

parameters of Byrd.

Second and perhaps more importantly,

Woodson, unlike Byrd, waived its right to a jury trial on this

issue. By affirmatively representing to the appellate court

that no remand for fact finding was necessary, Woodson also

waived any right it might have had to rely on Byrd as a basis

for seeking relief from this Court. It simply did not preserve

its right to invoke that precedent.

if.

THE DOCTRINE OF INVITED ERROR BARS ANY

REVIEW OF WOODSON’S PURPORTED LACK OF

OPPORTUNITY TO LITIGATE THE NOTICE

QUESTION

In reliance on the judicial admissions or

stipulations of Woodson that the extent of its actual notice or

knowledge was already before the court and remand was not

necessary, Amoco changed the relief it sought before the

appellate court. In fact, Amoco’s first point in its Reply

Brief to the Fifth Circuit expressed its reliance in no

uncertain terms: “Because Woodson has stipulated to the

only potential fact issue, Amoco now seeks rendition of

judgment rather than remand." (Appendix, infra, A).

Curiously, Woodson failed to include this Brief in its

submissions to this Court.

At no point following the filing of this Reply

Brief, did Woodson inform the court that remand was

necessary or that Amoco was misleading the appellate court

or misinterpreting its statements. Woodson did, however,

file a letter brief informing the Court of Appeals of a recent

Texas decision which it felt was significant and beneficial to

Woodson’s position. (See, Appendix, infra, B&C).

It is readily apparent that Woodson knew of its

right to supplement or correct any misconceptions, errors,

etc. arising during the appellate process. Even with this

knowledge, Woodson failed to seek any alternative relief

from the Fifth Circuit. It also failed to indicate to that court

that remand was a necessary remedy, or that reversing and

rendering, as sought by Amoco, was improper. Nor did it

indicate that a fact issue would exist if the Fifth Circuit

concurred with Amoco’s legal position. Woodson obviously

knew that Amoco expressly changed its position in reliance

on the referenced portion of Woodson’s Brief. Given those

affirmative misrepresentations and subsequent failures to

speak up about the errors upon which its Petition is now

based, the Doctrine of Invited Error applies to bar

Woodson’s request for an opportunity to further litigate the

very matters it told the Fifth Circuit were not in issue.

The Doctrine of Invited Error states simply

that a party may not complain on appeal of errors that he

himself invited or acquiesced to or provoked the court or

opposite party to commit. Harvis v. Roadway Express, Inc..,

923 F.2d 59 (6th Cir. 1991).°? The Sixth Circuit referred to

it as a "cardinal rule of appellate review." /d. at 60.

The doctrine of "invited error" is a branch of

the doctrine of waiver by which courts

prevent the party from inducing an erroneous

ruling and later seeking to profit from the

legal consequences from having the ruling set

aside. It is based on reliance interests similar

to those that support the doctrines of equitable

and promissory estoppei. Having induced

the court to rely on a particular erroneous

proposition of law or fact, a party in the

normal case may not, at a later stage of the

case, use the error to set aside the immediate

consequences of the error. ... The consequences

of Plaintiffs actions forecloses his request for

* Although Shepherd’s reflects that this decision was reversed, a

careful review of the cases reveals that is not correct. Harvis’ claims

were severed from the other two plaintiffs, Maurice Rivers and Robert

Davison, and was tried separately resulting in the cited opinion reported

at 923 F.2d 59 (6th Cir. 1991).

Rivers and Davison’s claims were later tried and appealed - on

wholly different issues - but initially under the Harvis v. Roadway

Express, Inc. style. The Sixth Circuit’s opinion in that case reversed the

district court’s judgment, but made no reference to the original Harvis

decision, nor could it because Harvis himself was no longer a party to the

litigation. Harvis’ name was ultimately deleted when Rivers and

Davison’s claims progressed to this Court. See, e.g., Harvis v. Roadway

Express, Inc., 973 F.2d 490 (6th Cir.), cert. granted in part, Landgraf v.

USI Film Products, __ U.S. ___, 113 S.Ct. 1250, 122 L.Ed.2d 649

(1993), aff'd sub nom, Rivers v. Roadway Express, Inc., «U.S. __,

114 §.Ct. 1510, 128 L.Ed.2d 274 (1994).

a remand to the district court. Harvis 923

F.2d at 61 (emphasis added).'°

Federal courts have long held that a party

cannot subsequently complain of error when it asked the

appellate court to decide a question before it in a particular

manner. Glassman Constr. Co., Inc. v. United States, 421

F.2d 212, 215 (4th Cir. 1970). In this case, Woodson

specifically asked the appellate court not to remand for a fact

finding. The Fifth Circuit relied on Woodson’s statements

in rendering its judgment. As the Fourth Circuit succinctly

put it: a party "should not be heard now to complain that we

did what it asked of us" /d. at 215. Under the equitable

Doctrine of Invited Error, Woodson is now estopped from

assailing the court of appeals’ decision.

Ill.

WOODSON’S PETITION IS FATALLY DEFECTIVE

BECAUSE IT ADDRESSES ONLY ONE OF THE TWO

INDEPENDENT BASES FOR THE FIFTH CIRCUIT’S

RULING

The issue before the lower courts was whether

the indemnity language in the Woodson-Amoco contract was

enforceable under Texas law. Woodson argued that the

indemnity clause was invalid because it did not comply with

the express negligence test announced by the Texas Supreme

Court in Ethyl, supra. Amoco disputed the applicability of

the pure express negligence test and argued further that if the

test applied, the contract fell within the exception created in

Page, supra. (See, e.g., Appendix, infra, A & C and

Petition 179a).

1913).

The Fifth Circuit Opinion recited two

independent bases for its decision. Initially, the appellate

court noted that Amoco was not seeking indemnification for

its own negligence, but only recovery for that amount of

negligence attributable to Woodson. The Fifth Circuit saw

"nothing in Texas law to defeat enforceability of this

agreement. Assuming, without deciding, that under Ethyl...,

Amoco must meet the express negligence test even though it

seeks recovery only for Woodson’s negligence

(indemnification of comparative fault), we find the contract

to be enforceable." (emphasis added) (Petition, 5a).

In short, the appellate court held that even if

Woodson was right and Amoco had to meet the strict Ethyl

contract construction test, the contract language in question

met that test.

In neither its Petition for Rehearing nor its

Petition for Writ of Certiorari does Woodson ever address

this crucial portion of the Fifth Circuit’s decision. Woodson

never comes to grips with the fact that the Fifth Circuit

ruled, as a matter of law, that the contract language met the

requirements of Texas substantive law. Rather, Woodson’s

Petition addresses only the second prong of the Fifth Circuit

ruling related to the Page exception. (Petition 11-17).

Consequently, Woodson waived any right to challenge this

other adequate and independent ground for affirmation. Rule

14.1(a), Supreme Court Rules; Taylor v. Freeland & Kronz,

US. , 112 S.Ct. 1644, 1649, 118 L.Ed.2d 280

(1992). Hence, even if this Court should find some

procedural error otherwise worthy of remand, which Amoco

denies, this Court cannot reverse the appellate court because

any challenges to the adequate and independent ground of

recovery found by the Fifth Circuit have been waived.

IV.

THE APPELLATE COURT’S INTERPRETATION OF

THE CONTROLLING STATE LAW IS NOT CLEARLY

ERRONEOUS, AND THEREFORE, IS NOT

REVIEWABLE BY WRIT OF CERTIORARI

Woodson’s Petition expends almost 50% of its

argument on a question of substantive state law neither raised

in its "Question Presented" for decision by this Court, nor

even relevant to its constitutional due process claims.

(Petition 14-17). The issue before this Court is whether the

Fifth Circuit should have remanded this case for further fact

finding, not whether the appellate court “blatantly misinter-

preted Texas Law" applicable to the interpretation of

indemnity contracts. Ironically, Woodson acknowledges the

irrelevancy of its arguments in this regard when attempting

to belatedly frame an additional ground for appeal in a

footnote alleging a generic violation of Erie principles.

(Petition 17, n.4).

Assuming that Woodson is seriously asking

this Court to substitute its interpretation of Texas substantive

law for that of the lower federal courts, Amoco is compelled

to point out that Woodson neither properly preserved nor

presented this issue for appeal. Moreover, it fails to demon-

strate that the lower court’s interpretation is sufficiently

erroneous to invoke review by this Court.

As even Woodson’s flagship case holds, this

Court “ordinarily accepts the interpretation of local law by

the Court of Appeals." Byrd, 356 U.S. at 529-530. In fact,

this Court has often explained that it will not disturb a lower

court’s interpretation of state-law issues unless the petitioner

carries the heavy burden of establishing that the holding at

a eee

issue is “clearly wrong,"'' “clearly erroneous,"'? or

completely “unreasonable;"'’ none of which are applicable

in this case.

When all is said and done, what remains clear

is that the parties and the lower courts disagreed over the

interpretation of the controlling state law. Under those

circumstances, the appellate court’s interpretation cannot be

said to be either totally unreasonable (Propper) or plainly

erroneous. Palmer v. Hoffman, 318 U.S. 109, 118 (1943).

For example, as Amoco successfully argued

below, there is ample Texas precedent to support the

enforceability of the indemnity agreement in the Woodson-

Amoco contract. The Texas Supreme Court addressed the

requirements necessary to enforce an indemnity clause in the

case of Page Petr., Inc. v. Dresser Indus., Inc., supra, and

held that indemnity agreements must meet the fair notice

requirements of express negligence and of conspicuousness.

The Page court went on to say, however, that the fair notice

requirements “are not applicable when the indemnitee

establishes that the indemnitor possessed actual notice or

knowledge of the indemnity agreement." Jd. at 508 and n.2.

The thrust of Woodson’s “point of error" in this regard is

that the Fifth Circuit’s literal reading of this language

allegedly does not comport with the remainder of the case.

(Petition 15-17).

Subsequent to the Page decision, the Texas

14th Court of Appeals held that in a situation where the

'' The TUNGUS v. Skovgaard, 358 U.S. 588, 596 (1959)

'2 United States v. Durham Lumber Co., 363 U.S. 522, 527 (1960)

3 Propper v. Clark, 337 U.S. 472, 486-87 (1949)

indemnitee is not seeking recovery for its own negligence,

but rather is seeking recovery for the negligence of the

indemnitor (as in this case), the express negligence test

announced by the Texas Supreme Court is not applicable.

MAN GHH Logistics Gmbh v. Emscor, Inc. , 858 S.W.2d 41

(Tex. App.-- Hous. [14th Dist.] 1993, n.w.h.). Hence, it is

clear that the Fifth Circuit’s judgment is supported by ample

Texas substantive law. Simply because Woodson’s

interpretation differs from that of the appeals court does not

render the decision “clearly erroneous" nor does it warrant

the issuance of a Writ in this case.

WOODSON OFFERS NO

"SPECIAL AND IMPORTANT REASONS"

FOR GRANTING DISCRETIONARY REVIEW

OF THIS CASE, AND NO SUCH REASONS EXIST

Rule 10 of the Supreme Court Rules states that

"[a] Petition For A Writ Of Certiorari will be granted only

when there are special and important reasons therefore."

Woodson has failed to show any reasons exist in this case.

Indeed, Woodson’s Petition conclusively shows that no. such

reasons exist, as the following demonstrates:

l. The underlying dispute involves the

interpretation of rights and liabilities of a construction

contract, matters of state law. Thus, the substantive dispute

between Woodson and Amoco is purely a matter of Texas

State law and does not even remotely implicate a federal

interest.

ya As the Petition notes, the Fifth Circuit

issued a per curiam, Do Not Publish Opinion. Hence it is

apparent that this Opinion is one that applies only to two

;

a ;

corporations and has little precedential effect on federal or

even state interests.

3. In the same vein, it is worth noting that

this case was brought in federal court because the underlying

personal injury plaintiffs and the parties are diverse under 28

U.S.C. §1332 (Appendix, infra, D). In essence, Woodson

asks this Court to sit as a super-supreme court for the State

of Texas. Where there are no federal or constitutional

questions at issue, there is no reason for this Court to take on

that role.

4. Perhaps mindful of a lack of any

federal interests in the underlying substantive contract case,

Woodson argues that the appellate court committed

procedural errors as well as reached an improper result in the

hopes of creating a federal interest. In so arguing, Woodson

is asking this Court to act as an error-corrector rather than

as a law-declarer, a request which simply cannot be * special

and important" within the meaning of Rule 10.

3. Woodson does not and cannot contend

that the appellate decision sets any sort of broad precedent,

but argues only that the decision adversely affects its own

interests. In seeking discretionary review of such a decision,

Woodson overlooks the fact that this Court, unlike a federal

Circuit Court of Appeals, "does not sit for the benefit of the

particular litigants," and that the "special and important

reasons" requirement implies “a reach to a problem beyond

the academic or the episodic." Rice v. Sioux City Memorial

Park Cemetery, Inc., 349 U.S. 70, 74 (1955). As an earlier

case had said

[I]t is very important that we

be consistent in not granting

the Writ of Certiorari except in

cases involving principles the

settlement of which is of

importance to the public, as

distinguished from that of the

parties...

Layne & Bowler Corp v. Western Well Works, Inc., 261

U.S. 387, 393 (1923).

Specific procedural errors with no federal

implications and no precedential importance are simply not

"special and important" cases within the meaning of Rule 10

of this Court’s rules. Even if Woodson’s allegations of

procedural and substantive error were correct, which Amoco

denies, review by this Court would not be warranted.

SUMMARY AND CONCLUSION

Woodson asks this Court to grant a Writ of

Certiorari and reverse the Fifth Circuit Court of Appeals due

to an alleged deprivation of its due process rights. In its

Petition, Woodson failed to notify this Court that it admitted

the very fact issue upon which it bases this deprivation;

hence, no dispute of material fact on the notice or knowledge

issue exists. Woodson further failed to acknowledge in its

Petition that it waived any right to trial by other judicial

admissions before the appellate court. The Fifth Circuit

expressly relied on these admissions in rendering its decision.

Consequently, Woodson cannot now complain of error and

seek trial on the very issues to which it earlier stipulated and

waived any right to a jury trial.

Furthermore, Woodson specifically asked the

appellate court not to remand for a fact-finding on the issue

of its actual notice or knowledge. Amoco relied on these

admissions and subsequently changed the relief it sought

from the appellate court. The appellate court also relied on

2 ak cage meee ae

these judicial admissions. Hence, the Doctrine of Invited

Error applies and Woodson is estopped from now seeking the

same relief it previously told the lower court was

unnecessary and inappropriate.

Woodson’s Petition is fatally flawed because

it failed to assign as error one of the two independent bases

under state law upon which the Fifth Circuit based its

decision. By waiving its right to challenge that issue,

Woodson has rendered this appeal moot.

Although Woodson irrelevantly attacks the

interpretation of state law rendered by the Fifth Circuit, it is

obvious that holding is correct and supported by ample Texas

precedent. Woodson’s allegation of blatant misinterpretation

of Texas law is based on nothing more than conflicting views ~

of a footnote in the Page decision. Even if Woodson’s view

is correct, that does not rise to the standard of clearly

erroneous interpretation of state law, and does not justify

discretionary review by this Court.

Woodson has asked this Court to review a per

curiam, "Do Not Publish" appellate decision involving Texas

contract and indemnity law, which does not in any way

involve any interest other than those of the parties and does

not implicate any federal interests. Woodson does not argue

that the alleged procedural errors have any precedential

importance, but simply argues the Fifth Circuit has reached

an improper result. This case, then, affects only the rights

of the particular litigants and has no far-reaching federal or

constitutional implications. In sum, it is not a case

appropriate for review by this Court under Rule 10 of the

Supreme Court Rules. The Petition should be denied.

EDWARD J. MURPHY

GERARD J. KIMMITT, II

BELL AND MURPHY

1300 Post Oak Boulevard

20th Floor

Houston, TX 77056

(713) 871-6700

Attorneys of Record

for Respondent

Appendix A

Appendix B

Appendix C

Appendix D

INDEX TO APPENDICES

Respondent Amoco’s Reply Brief to

Coust Gf ARGUED o.oo ee la

Petitioner Woodson’s Letter Brief to

Coumt of Appeals ......... 22a

Respondent Amoco’s Letter Brief to

Comte ARpORe 2. cass 3la

Respondent Amoco’s Notice and

Petition of Removal to U.S.

Le 36a

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 93-2138

ROBERT LEE HAMILTON, ET AL..,

Plaintiffs,

VS.

AMOCO PIPELINE COMPANY,

Defendant-Third Party

Plaintiff-Appellant

VS.

WOODSON CONSTRUCTION COMPANY

Third Party Defendant-Appellee

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE SOUTHERN DISTRICT OF TEXAS,

HOUSTON DIVISION

REPLY BRIEF FOR DEFENDANT-THIRD

PARTY PLAINTIFF-APPELLANT

AMOCO PIPELINE COMPANY

Edward J. Murphy

Gerard J. Kimmitt

John F. Waldo

BELL & MURPHY

1300 Post Oak Blvd., 20th Floor

Houston, Texas 77056

(713) 871-6700 (Phone)

(713) 871-6767 (facs)

Attorneys for Defendant-Third

Party Plaintiff-Appellant

Amoco Pipeline Company

U.S. COURT OF APPEALS

FILED

AUG 18,1993

RICHARD E. WINDHORST, JR.

CLERK

CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel of record certifies that the

following listed persons and companies have an interest in

the outcome of this case. This representation is made in

order that Judges of this Court may evaluate possible

disqualification or recusal.

Parties: Amoco Pipeline Company

Defendant-Third Party

Plaintiff-Appellant

Woodson Construction Company

Third Party Defendant-

Appellant

Counsel: Edward J. Murphy

Gerard J. Kimmitt

John F. Waldo

BELL & MURPHY

Houston, Texas

Bradley M. Bingham

BINGHAM & MANN

Houston, Texas

Insurers: Liberty Mutual Insurance Company

(Woodson’s insurer)

Vesta Insurance Company

(Amoco’s insurer)

Note--The named plaintiffs, Robert Lee Hamilton et

al., have received settlements from Amoco Pipeline

Company and/or its insurers, and are therefore not persons

interested in the outcome of this appeal despite their nominal

Status as parties.

TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PARTIES....... ii

TABLE GP COMMITS 6 6.65 oid ads Se wawnn. iii

TABLES GP AUTRES i 5 wieioie cre aerayen ais em iv

I. BECAUSE WOODSON HAS STIPULATED TO

THE ONLY POTENTIAL FACT ISSUE, AMOCO

NOW SEEKS RENDITION OF JUDGMENT

RATHER THAN REMAND .............. l

Il. REPLY TO WOODSON’S ARGUMENTS ..... y

A. The Outcome Of This Case Does Not Depend

On The Difference Between ‘Indemnity’ and

oS eee ee ee 2

B. The New Page Case Makes The Express-

Negligence Test Inapplicable Where, As Here,

The Indemnitor Has Actual Knowledge Of

The Indemnity Requirement........... 4

1. Woodson’s argument that Page

involves only the requirement of

conspicuousness ignores the repeated

Statements that the fair notice

requirements--plural--include both

conspicuousness and the express

negligence doctrine............ +

2. Wocdson’s suggestion that Page

apples only to releases ignores the

explicit references to "indemnitees,"

"indemnitors" and "indemnity

a ares ae eee 6

a Amoco does not suggest that the fair

notice requirements are issues of fact,

but suggests only that the actual

knowledge exception is an issue of

fact, and that fact issue has been

mooted by Woodson’s stipulation of

actual knowledge of the indemnity

SOI od Paice 6 se ass 7

4. Page does not overrule Ethyl, but only

limits and clarifies it, and the fact that

the critical language was contained in

a footnote does not diminish the force

of the Page decision. ......... 8

i Even Without The Page Case, Amoco Would

Still Be Entitled To Reimbursement In

Proportion To Woodson’s Negligence. . . . 9

D. Woodson’s Own Brief Shows Why Justice

Requires That If Amoco Receives No Other

Relief, It Should Be Allowed To Withdraw Its

Stipulation of 50% Fault............ 11

III. SUMMARY AND CONCLUSION .......... 12

CERTIFICATE OF SERVICE... 1.2.22 sc eecces 15

TABLE OF AUTHORITIES

CASES

h v. Dani i

129 S.W 28 TOS, We (TOR. I9G7) ww ee passim

Getty v. Insurance Company of North America

845 S.W.2d 794, 803, 805, 806 (Tex. 1992)....... 9,13

Page Petroleum, Inc. v. Dresser Industries, Inc.

30 Ten. 3. Ct. 5. 757 (Agta 1, IRS). passim

STATUTES

Tex. Civ. P. & Rem, Code § 127.001 et seg.......... 8

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 93-2138

ROBERT LEE HAMILTON, ET AL.,

Plaintiffs,

VS.

AMOCO PIPELINE COMPANY,

Defendant-Third Party

Plaintiff-Appellant

VS.

WOODSON CONSTRUCTION COMPANY

Third Party Defendant-Appellee

TIP TED

TO THE ONLY POTENTIAL FACT ISSUE

AM N OF MENT

RATHER THAN REMAND.

Because of an important concession in Woodson’s

brief, this Court is now in a position to render a final

judgment rather than remanding the matter.

As Woodson correctly notes, Amoco argued that it "is

entitled under the Woodson/Amoco contract to be reimbursed

for monies it paid in settlement" in proportion to the degree

that Woodson’s negligence proximately caused the underlying

loss. (Woodson brief at 10). The parties had stipulated that

each was 50% at fault, and that Amoco reasonably and

necessarily paid $6,025,000 to settle the underlying cases,

(R. 1048-47), so Amoco was seeking $3,012,500, plus

interest. However, the trial court ruled that the

Woodson/Amoco contract did not meet the express

negligence test of Ethyl Corp. v. Daniel Construction Co.,

725 S.W.2d 705 (Tex. 1987), and that therefore, Amoco

could not recover.

On appeal, Amoco argued that under the recent case

of Page Petroleum Inc. v. Dresser Industries, Inc., 36 Tex.

S. Ct. J. 737 (April 7, 1993), decided after the trial court’s

judgment, the express-negligence requirement does not apply

where the indemnitor has actual knowledge of the indemnity

provision. Amoco asked this Court to apply Page, and to

remand for trial court fact-finding on whether Woodson had

actual knowledge of the indemnity provision. However,

Woodson concedes in its brief that the record reflects

Woodson’s "notice and knowledge of the indemnity clause."

(Brief at 14), and states that therefore, remand would be

needless. (Brief at 15). Based on that concession; Amoco

now asks this Court to reverse the trial court’s decision, and

render judgment that Amoco recover $3,012,500, plus

interest.

Il.

REPLY TO WOODSON’S AR ENTS

A. The Outcome Of This Case Does Not

Depend On The Difference Between

‘Indemnity’ and ‘Contribution.’

Woodson initially gets lost in a semantic thicket

arguing about the differences between indemnity and

contribution. Woodson argues that indemnity means the

shifting of an entire loss, whereas contribution means the

shifting of a partial loss. Woodson seemingly suggests that

because Amoco is seeking recovery only in proportion to

Woodson’s negligence, Amoco must be seeking contribution,

but that Amoco has made a claim only for indemnity.

This indemnity/contribution argument is a non-issue.

Another difference between the words "contribution" and

"indemnity" is that "contribution" is a statutory right to

apportion a loss, whereas “indemnity” is a contractual right.

That being so, neither word, standing alone, may precisely

fit, Amoco’s claim for loss sharing’ (as opposed to loss

shifting) arising out of a contract. But the fact that no one

single word precisely describes the relief Amoco is seeking

does not mean that Amoco has no claim. As all parties have

clearly understood from the inception of this action, Amoco

is seeking to recover in proportion to Woodson’s negligence,

and is basing its claim on the Woodson/Amoco contract.

In the case of Ethyl Corp. v. Daniel Construction

Co., supra, 725 S.W.2d 705, 708 (Tex. 1987), the Texas

Supreme Court specifically addressed a claim identical to

Amoco’s, and referred to the claim as one for "comparative

indemnity." The Supreme Court denied comparative

indemnity in Ethyl, but not because no such animal exists.

Rather, the Supreme Court said that a contract must meet the

express negligence test in order to support a claim for

: Phrased yet another way, Amoco is seeking to be

indemnified for the entirety of the loss that Woodson caused, but not for

the loss that Amoco itself caused. Such a claim would have to be based

on contract, because otherwise, an action against Woodson would be

barred by the protective provisions of the worker’s compensation act.

10a

comparative indemnity, and the Court said that the contract

at issue in Ethyl failed to meet that test. Likewise, the trial

court denied Amoco any recovery in this case not because

Amoco’s claim did not exist, but because, in the trial court’s

view, the Woodson/Amoco contract also failed to meet the

express negligence test for comparative indemnity. The

issue, then, is not what Amoco’s claim might be called, but

rather, whether the express negligence doctrine of Ethyl bars

Amoco’s claim.

B. The New Page Case Makes The Express-

Negligence Test Inapplicable Where, As

Here, The Indemnitor Has _ Actual

Knowledge Of The Indemnity Requirement.

Amoco’s principal appellate point is that under Page,

the Ethyl express-negligence doctrine does not apply where

the indemnitor has actual knowledge of the contractual

indemnity provision. In response, Woodson makes four

arguments. First, Woodson argues that the Page case does

not address the express negligence test, but applies only to

the requirement that an indemnity provision be conspicuous.

Second, Woodson suggests that Page applies only to release

agreements, and not to indemnity agreements. Third,

Woodson argues that the impact of Page is to make the "fair

notice" requirements matter of law, not matters of fact.

Finally, Woodson says that if the Texas Supreme Court

intended to "overrule" Ethyl, it would do so in text, not in

a footnote.

Those arguments ignore the actual language of the

Page decision, ignore Amoco’s arguments, or both.

lla

¥ Woodson’s argument that Page involves

only the requirement of conspicuousness

ignores the repeated statements that the fair

notice requirements--plural--include both

conspicuousness and the express negligence

doctrine.

Woodson’s argument that Page deals only with the

conspicuousness requirement requires this Court to ignore the

plain language of the case. The Texas Supreme Court

framed the issue in Page as follows:

We must first determine whether the

fair notice requirements of conspicuousness

and the express negligence doctrine apply to

releases as well as to indemnity agreements .

Page Petroleum, Inc. v. Dresser Industries, Inc., 36 Tex. a.

Ct. J. 737, 738 (April 7, 1993). We call this Court’s

attention to the use of the plural word "requirements. "

Plainly, the Texas Supreme Court was saying that there are

two requirements of fair notice--conspicuousness and the

express negligence doctrine.

Later in the opinion, the Supreme Court again makes

that point even more unmistakable. The Page opinion states:

Because indemnification of a party for its own

negligence is an extraordinary shifting of risk,

this Court has developed fair notice

requirements which apply to these types of

agreements. The fair notice requirements

. [citation

omitted]. The express negligence doctrine

12a

States that a party seeking indemnity from the

consequences of that party’s own negligence

must express that intent in specific terms

within the four corners of the contract.

(citing Ethyl].

(Id. at 739, emphasis added). Again, the Supreme Court is

Stating in language too plain for dispute that the fair notice

requirements--plural--are the express negligence doctrine and

conspicuousness.

The statement in Page that is critical for this case is

a footnote that appears after the first sentence quoted in the

immediately preceding passage. In that footnote, the Texas

Supreme Court says:

The fair notice requirements are not

applicable when the indemnitee establishes

that the indemnitor possessed actual notice

or knowledge of the indemnity agreement.

Id. at 739 & n.2. Again, the Supreme Court uses the plural

"fair notice requirements," which it has already repeatedly

defined as meaning both conspicuousness and the Ethyl

express negligence doctrine. The Court states that those

requirements--both of them--are inapplicable where the

indemnitor has actual notice or knowledge of the indemnity

requirement.

For the foregoing reason, Woodson’s argument that

the actual-knowledge exception of Page applies only to the

conspicuousness requirement must be rejected.

13a

2. Woodson’s suggestion that Page applies

only to releases ignores the explicit

references to "indemnitees," "indemnitors"

and "indemnity agreements."

Similarly, Woodson suggests that Page involved only

releases, and not indemnity agreements. Again, that

argument ignores the plain language of the opinion.

In the critical footnote, the Supreme Court said that

the fair notice requirements do not apply when the

"“indemnitee" shows that the "indemnitor" had actual notice

or knowledge of the "indemnity agreement." It is fatuous to

suggest that when the Texas Supreme Court spoke of

"indemnitees," "indemnitors" and "indemnity agreements, "

it really meant "releases," "releasors" and “release

agreements."

Whatever Page may mean, there can be no disputing

the fact that the case applies to indemnity agreements.

Se Amoco does not suggest that the fair notice

requirements are issues of fact, but suggests

only that the actual knowledge exception is

an issue of fact, and that fact issue has been

mooted by Woodson’s stipulation of actual

knowledge of the indemnity provision.

Woodson further suggests that the import of Page was

to clarify that compliance vel non with the fair notice

requirements is a question of law, rather than a question of

fact. (Brief at 11, 19). Amoco does not suggest otherwise.

It is the actual knowledge exception, not the fair notice

requirements, that Amoco asserts is an issue of fact.

l4a

Again, Amoco had originally sought a remand to give

the trial court the opportunity to ascertain whether Woodson

had actual knowledge of the indemnity provision in the

Woodson/Amoco contract. In making that suggestion,

Amoco cited deposition testimony from Woodson’s president

in which he said that his understanding of the indemnity

provision in the Woodson/Amoco contract was that Woodson

would pay to the extent of its negligence, and Amoco would

pay to the extent of its negligence. Rather than insist upon

a remand for fact-finding, though, Woodson has graciously

stipulated in its brief that it did have actual knowledge of the

indemnity agreement. Therefore, if this Court agrees with

Amoco’s interpretation of Page, it can simply reverse the

trial court’s judgment and render a judgment that Amoco

recover 50% of the amount paid to settle the underlying

cases, of $3,012,500, together with appropriate prejudgment

and postjudgment interest.

4. Page does not overrule Ethyl, but only

limits and clarifies it, and the fact that the

critical language was contained in a

footnote does not diminish the force of the

Page decision.

Woodson’s final attack on Page is to state that if the

Texas Supreme Court meant to “overrule the established,

black letter law of Ethyl, it would have done so in the body

of the opinion, rather than in a footnote." (Brief at 19).

Amoco’s first response to that argument is to note that

Page does not overrule Ethyl at all, but merely limits its

application. Page reaffirms that an indemnity provision must

meet the express-negligence test to be valid. Page only states

that the test does not apply where the indemnitor had actual

knowledge of the provision.

—EEE==—~—

15a

This exception is consistent with the stated purpose of

the Ethyl express negligence requirement, which was to

prevent surprise and unwitting indemnity provisions. The

problem that the Texas Supreme Court addressed in Ethyl

was the problem of devious drafters cleverly obscuring their

intent.2, As the Court said:

[T]he scriveners of indemnity agreements have

devised novel ways of writing agreements which fail

to expressly state the true intent of those provisions.

The intent of the scriveners is to indemnify the

indemnitee for its negligence, yet be just ambiguous

enough to conceal that intent from the indemnitor.

Id., 725 S.W.2d 707-08. In Page, the Supreme Court did no

more than restate the obvious--if a party actually knows what

he is required to do, then he cannot claim to have been

victimized by devious draftsmanship.

Amoco does not share Woodson’s appreciation for the

fact that the critical language in Page is contained in a

footnote, rather than in the body of the text. Amoco is

unaware of any principle of law suggesting that an

unambiguous directive from a state’s highest court may be

disregarded simply because that directive appears in a

footnote.

. The Texas Legislature addressed a different problem,

that of unequal bargaining power, in the Texas Oilfield Indemnity Act,

(TOIA), Tex. Civ. P. & Rem. Code § 127.001 et seq. The Legislature

found that certain indemnity provisions work “an inequity” on

indemnitors, § 127.002(a), and the TOIA imposes restrictions on

indemnity agreements covered by the statute. No one has contended that

the TOIA applies to this case, and the statute specifically exempts

pipelines, § 127 .001(4)(b)(ii). By excepting pipeline contracts from the

act designed to regulate potentially unfair indemnity agreements, the

Legislature has tacitly declared that unfairness is not a problem in those

contracts.

16a

For all of the foregoing reasons, Amoco submits that

Page controls this appeal. Now that Woodson has stipulated

that it did have such actual notice or knowledge, and that a

remand is not necessary, Amoco asks this Court to reverse

the trial court’s judgment against Amoco, and render

judgment in Amoco’s favor for $3,012,500, plus

prejudgment and post-judgment interest.

.. Even Without The Page Case, Amoco

Would Still Be Entitled To Reimbursement

In Proportion To Woodson’s Negligence.

Amoco’s second argument is that even if Woodson’s

indemnity promise is unenforceable because it fails to meet

the express negligence requirement, Woodson made a

separate reimbursement promise to which the express

negligence doctrine does not apply. Amoco based its

argument on the case of Getty Oil Co. v. Insurance Co. of

N. America, 845 S.W.2d 794 (Tex. 1992). That case, which

was also decided after the trial court rendered judgment for

Woodson in this case, held that the express negligence

doctrine applies only to indemnity covenants denominated as

such, and does not apply to independent covenants such as a

promise to name a party as an additional insured, even

though that independent covenant might accomplish the same

thing as the indemnity covenant. Amoco noted that in the

Woodson/Amoco contract, Woodson promised not only to

indemnify Amoco, but also to reimburse Amoco for losses

caused by Woodson’s own negligence. Amoco argued that

because the reimbursement promise was separate from the

indemnity promise, the reimbursement promise is not subject

to the express negligence doctrine.

Woodson does not directly address this argument in

its brief. It argues that the reimbursement provision "does

not meet the requirements of Ethyl," (Brief at 21). Amoco

17a

has not argued that the reimbursement provision meets the

Ethyl requirements, but rather, has argued that the

reimbursement provision is not subject to the Ethyl

requirements.

Ironically, Woodson’s brief assists Amoco. Woodson

notes that under general rules of contract interpretation, a

court “should examine and consider the entire writing in an

effort to harmonize and give effect to all of the contract

provisions so that none will be rendered meaningless."

(Brief at 21). But having correctly quoted the rule, Woodson

asks this Court to simply ignore the reimbursement

provision, and concentrate only on the indemnity provision,

which has the effect of rendering the reimbursement

provision meaningless.

It may be true that the indemnity and reimbursement

provisions could lead to essentially the same result in this

case. But that in no way undercuts Amoco’s argument. The

undeniable fact is that both provisions are in the contract.

One benefit of redundancy, if redundancy there be, is that if

one provision fails for whatever reason, the other provision

may still accomplish the drafter’s purpose.

For the foregoing reasons, Amoco asks that if this

Court does not believe it can enforce the indemnity provision

in the Woodson/Amoco agreement because of the Ethyl case,

it enforce the reimbursement provision, which Amoco

submits is not subject to Ethyl.

D. Woodson’s Own Brief Shows Why Justice

Requires That If Amoco Receives No Other

Relief, It Should Be Allowed To Withdraw

Its Stipulation Of 50% Fault.

18a

Finally, Woodson argues that Amoco should not be

allowed to withdraw its stipulation of 50% fault. First,

Woodson argues that Amoco’s mistake was unilateral only,

and that Woodson always thought that the trial court might

enter judgment in its favor. Second, Woodson argues that

the stipulation did not actually harm Amoco. Woodson says

that under Ethyl, any negligence on Amoco’s part would bar

Amoco’s recovery in toto. Woodson further points out that

Amoco never disputed that it might be negligent to some

degree, as evidenced by the fact that it sought recovery not

for the entire settlement amount, but only for that amount

proportional to Woodson’s degree of fault. In so arguing,

Woodson perfectly demonstrates Amoco’s point.

Woodson is quite correct in arguing (Brief at 25-26)

that if the Ethyl rule were applied and if the

Woodson/Amoco contract were determined not to satisfy that

rule, then even 1% fault on Amoco’s part would bar

Amoco’s recovery. Woodson correctly reads Ethyl as

applying only to situations where the indemnitee (Amoco) is

negligent. Under Ethyl, then, the sole issue in this case

would be whether Amoco was negligent to any degree.

Yet as this Court is aware, when the trial court denied

Woodson’s motion for summary judgment, it said that the

fact issue was the degree of Woodson’s negligence, not

Amoco’s negligence. As Amoco was aware then and as

Woodson now correctly notes, Woodson’s negligence would

be totally irrelevant under Ethyl. So when the trial court

said that Woodson’s negligence was the dispositive issue,

Amoco drew the only conclusion that it could draw, which

was that the trial court believed Ethyl did not apply.

Again, Amoco submits that this is an unusual

situation, and that unusual relief may be appropriate. If

Amoco receives no other relief from this Court, it would ask

19a

that the Court carefully consider whether basic fairness

demands that Amoco be permitted to withdraw its

stipulations.

Ill.

SUMMARY AND CONCLUSION

The trial court held that Amoco was not entitled to

recover its settlement payments from Woodson in proportion

to Woodson’s fault because the Woodson/Amoco contract did

not meet the express negligence test of Ethyl Corp. v. Daniel

Construction Co., 725 S.W.2d 705 (Tex. 1987). While this

appeal was pending, however, the Texas Supreme Court

ruled in the case of Page Petroleum Inc. v. Dresser

Industries, Inc., 36 Tex. S. Ct. J. 737 (April 7, 1993) that

the express-negligence requirement does not apply where the

indemnitor has actual knowledge of the indemnity provision.

Amoco originally sought a remand to determine whether

Woodson had actual knowledge of the indemnity

requirement. In its brief, Woodson stipulated that such

actual knowledge existed, and that remand is not necessary.

Therefore, based on Page, Amoco now asks this Court to

reverse and render judgment in its favor for $3,012,500, a

sum based on the parties’ stipulations concerning

apportionment of fault and reasonable amounts paid to settle

the underlying claims.

Alternatively, Amoco has argued that Getty Oil Co.

v. Insurance Co. of N. America, 845 S.W.2d 794 (Tex.

1992) applies the Ethyl express-negiigence rule only to

indemnity provisions denominated as such. The

Woodson/Amoco contract contains not only an indemnity

provision but a reimbursement provision. Amoco submits

that under Getty, the reimbursement provision is not subject

to Ethyl, and can be enforced.

20a

Finally, Amoco asks that if all other relief is denied,

it be permitted to withdraw its stipulations. | Those

Stipulations were entered into on the reasonable belief that

the trial court was not going to apply the Ethyl rule to the

Woodson/Amoco contract. That belief was reasonable

because under Ethyl, the dispositive issue would be whether

Amoco was negligent in whole or in part, however slight.

When the trial court ruled on summary judgment that the

dispositive issue was Woodson’s negligence, Amoco believed

that the trial court was not going to apply Ethyl, under which

Woodson’s negligence would be totally irrelevant.

For all of the foregoing reasons, Amoco asks this

Court to reverse the take-nothing judgment of the trial court

and to render judgment in Amoco’s favor for $3,012,500,

plus interest, or, alternatively, to remand the proceedings

with directions that Amoco be allowed to withdraw its

stipulations.

DATED this _i7th_ day of August, 1993.

By: _/s/ r immi

EDWARD J. MURPHY

TBA No. 14697500

GERARD J. KIMMITT

TBA No. 11427500

JOHN F. WALDO

TBA No. 20679900

1300 Post Oak Boulevard, 20th Floor

Houston, Texas 77056

Telephone: (713) 871-6700

Facsimile: (713) 871-6767

Attorneys for Defendant-Third

Party Plaintiff-Appellant

Amoco Pipeline Company

OF COUNSEL: .

BELL & MURPHY

2la

ERVI

I hereby certify that two (2) true and correct copies

the foregoing REPLY BRIEF FOR DEFENDANT-THIRD

PARTY PLAINTIFF-APPELLANT AMOCO PIPELINE

COMPANY were sent via hand delivery to:

Bradley M. Bingham, Esq.

Bingham & Mann

1221 Lamar, Suite 1300

Houston, TX 77010

on this _7th_ day of August, 1993.

/s/ Gerard J. Kimmitt

Gerard J. Kimmitt

22a

APPENDIX B

BINGHAM & MANN

Attorneys at Law

1001 Fannin, Suite 1212

Houston, Texas 77002-6708

Phone:713-659-8405

Fax:713-659-5407

August 24, 1993

Richard E. Windhorst, Jr.

Office of The Clerk

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

600 Camp Street

New Orleans, Louisiana 70130

RE: Cause No. 93-2138; Hamilton vs. Amoco vs.

Woodson Construction (D.C. #CA-H-4158);

United States Court of Appeals, Fifth Circuit

Dear Mr. Windhorst:

On behalf of Appellee Woodson Construction

Company, I have recently learned of an appellate decision in

Texas which contains pertinent and significant authority in

support of Appellee’s position. This decision, a copy of

which is enclosed, did not come to my attention until after

Appellee’s Brief had been filed.

23a

We would appreciate your bringing the enclosed

decision to the attention of the Court.

Sincerely,

/s/ Bradley M. Bingham

Bradley M. Bingham

BMB/mh

cc: Mr. Ed Murphy

AUG 27 1993

24a

Affirmed and Opinion filed July 1, 1993.

(SEAL)

In The

Fourteenth Court of Appeals

NO. C14-92-01254-CV

MAN GHH LOGISTICS GMBH, FKA MAN GHH

KRANTECHNIK GMBH AND _ FKA _ M.A.N.,

WOLFFKRAN GMBH, MAN GH CORP., FKA

AMERICAN M.A.N., CORP., MAN

GUTEHOFFNUNGSHUTTE AG, FKA MAN

GUTEHOFFNUNGSHUTTE GMBH, AND

WOLFFKRAN AMERICAN, INC., FKA EMSCOR

WOLFF RENTALS, INC., AND DBA E.W.R., A

WOLFFKRAN COMPANY, Appellants

EMSCOR, INC., AND WALTER MANNING, JR.,

Appellees

On Appeal from the 55th District Court

Harris County, Texas

Trial Court Cause No. 87-20154-a

25a

OPINION

Appellants and appellees, by cross-point, both appeal

from summary judgments. The parties sought

indemnification form each other for funds voluntarily paid in

settlement of a wrongful death suit. The parties contend they

are entitled to reimbursement from each other through

contractual contribution. We disagree and affirm the

judgment of the trial court.

On April 25, 1987, three men were killed and one

man injured when a 152’ tower crane fell over while it was

being dismantled. Approximately two years prior to the

accident, in May, 1985, Emscor sold its crane fleet,

including the crane involved in this accident, to appellants.

Emscor continued managing the crane fleet until January

1987, four months before the accident, when Emscor’s

management contracts were terminated. The families of two

of the men killed filed suit against appellants and Emscor.

In October 1990, appellants voluntarily settled the two death

claims for $3,000,000. In November, 1990, Emscor and

Manning (former president of Emscor) agreed to a

$3,000,000 judgment in favor of the two families.

Appellants contend appellees are responsible for the

accident because Emscor erected the tower crane with twelve

center ballast weights, instead of fourteen center ballast

weights. The center ballast weights are placed on the base

of the tower crane to maintain its stability. Appellees

contend the accident was caused by the improper dismantling

procedure of appellants.

Appellants sought reimbursement from appellees for

the $3,000,000 appellants voluntarily paid to the two

families. Appellees moved for summary judgment, which

26a

was granted. Appellees in turn, sought indemnity from

appellants. Appellants moved for summary judgment, which

the trial court also granted. Both parties appeal the granting

of the summary judgments.

A summary judgment will be upheld on appeal only

if the movant has conclusively established there is no genuine

issue as to any material fact, and the movant is entitled to

judgment as a matter of law. Davis v. Houston Independent

School District, 654 S.W.2d 818, 820 (Tex. App.--Houston

[14 Dist.] 1983, no writ). The summary judgment evidence

is considered in the light most favorable to the party

opposing the motion. Gonzales v. Global Truck &

Equipment, Inc., 625 S.W.2d 348, 350 (Tex. Civ. App.--

Houston [1st Dist.] 1981, no writ). All doubts concerning

the existence of a genuine issue of material fact should be

resolved against the movant. /d. All conflicts in the

evidence must be disregarded and the evidence that tends to

support the position of the non-movant is accepted as true.

Id.

The question to be determined on appeal is whether

the summary judgment proof establishes as a matter of law

that there is no genuine issue of fact as to one or more of the

essential elements of plaintiff’s cause of action. Gibbs v.

General Motors, 450 S.W.2d 827, 828 (Tex. 1970).

In three points of error, appellants argue the trial

court erred in granting appellee’s motion for summary

judgment because application of the "express negligence

rule" was premature and improper; appellants’ claim for

contractual contribution survives a voluntary settlement and

is not barred by the express negligence rule; and satisfaction

of the express negligence rule should not be a prerequisite to

recovery of contractual contribution and/or contractual

27a

comparative indemnity. We will address appellants’ three

points of error together.

Appellants acknowledge that their voluntary settlement

of $3,000,000 extinguishes any common-law and statutory

contribution rights. See Beech Aircraft Corp. v. Jinkins, 739

S.W.2d 19 (Tex. 1987); International Proteins Corp. v.

Ralston-Purina Co., 744 S.W.2d 932 (Tex. 1988); TEX.

CIV. PRAC. & REM. CODE ANN. § 33.015(d)(Vernon

1993). However, appellants argue they have a right to

"contractual contribution" for appellees’ proportionate share

of fault based upon the indemnification clause contained in

the "Asset Purchase Agreement," signed by appellants and

Emscor on January 24, 1987, when Emscor sold the crane

fleet to appellants. The pertinent portion of the “Asset

Purchase Agreement” states:

Indemnifications

Indemnification by Sellers. Sellers [Emscor], jointly

and severally, hereby indemnify and hold harmless

the Purchaser [appellants] and its respective

successors and assigns from and against any loss,

damage, or expense (including reasonable attorneys’

fees) caused by or arising out of:

(i) any breach or default in the performance by

Sellers of any covenant or agreement of

Sellers contained in this Agreement;

(ii) any breach of warranty or inaccurate or

erroneous representation made by Sellers

herein, in any Exhibit hereto, or in any

certificate or other instrument delivered by or

on behalf of Sellers pursuant hereto;

28a

(iii) third party claims regarding Emscor’s’

management of Purchaser’s Wolff tower

cranes prior to the closing Date;

(iv) third party claims regarding any matter

relating to title to or Emscor’s maintenance of

the Purchase Assets prior to the Closing Date;

(v) any liability arising out of any and all actions,

suits, proceedings, claims. demands,

judgments, costs, and expenses (including

reasonable legal and accounting fees) incident

to any of the foregoing.

The express negligence rule requires parties seeking

to indemnify the indemnitee from the consequences of its

own negligence to express that intent in specific terms.

Under the test, the intent of the parties must be specifically

Stated within the four corners of the contract before such

indemnity provision is enforceable. Ethyl Corp. v. Daniel

Construction Co. , 725 S.W.2d 705 (Tex. 1987). Application

of the express negligence test is proper at the summary

judgment stage; fault apportionment is not a prerequisite to

judging an indemnity agreement’s effectiveness. Aflantic

Richfield v. Petroleum Personnel, 768 S.W.2d 724 (Tex.

1989). Appellants argue the trial court’s application of the

express negligence rule was improper because appellants

were seeking reimbursement not for their own negligence,

but for appellees’ negligence.

We agree with appellants that the express negligence

rule does not apply in this case because appellants are not

seeking to recover for their own negligence. We also agree

with appellants that if they were seeking to recover for their

own negligence, they would be barred by the express

29a

negligence rule because the indemnification clause does not

meet the requirements set forth in Ethyl Corp., 725 S.W.2d

705.

However, we also find that the indemnification

agreement is not effective in establishing a claim for

contractual contribution. The clause is an indemnity

provision, not a contractual contribution provision. There is

no agreement that appellees will reimburse appellants for any

voluntarily settlements made with any plaintiffs. The

contract provision does not mention “contribution,” and fails

to discuss any apportionment of fault. The contract provision

also fails to set forth any intent by the parties for a claim for

reimbursement. The indemnification agreement does not

provide for contractual contribution. Therefore, the

indemnification clause is not necessary because appellants are

not seeking reimbursement for their own negligence and if

they were, are barred by the express negligence rule, and the

clause is ineffective in establishing a contractual contribution

for a voluntary settlement. Appellants voluntarily paid

$3,000,000 to plaintiffs in the underlying case. By doing so

appellants have destroyed any forum for determining who

was at fault. Appellants are not entitled to reimbursement

for their voluntarily settlement of $3,000,000. We overrule

appellants’ first, second and third points of error.

In its cross-point, appellees argue the trial court erred

in granting appellants’ motion for summary judgment because

the summary judgment evidence presented a genuine fact

issue for the jury to decide if Emscor’s negligence was the

sole cause of the accident. We agree that there is a fact

question as to the cause of the accident.

However, appellants’ motion for summary judgment

asserted that appellees were the sole cause of the accident

and that there was no basis for appellees’ assertion of a

30a

contractual contribution and/or indemnity claim. In their

response to appellants’ motion for summary judgment,

appellees furnished controverting evidence as to the cause of

the accident. They did not furnish any evidence to support

their assertion of a contractual contribution and/or indemnity

claim. The summary judgment order does not state on which

of the two grounds it was granted; therefore, if either ground

is insufficiently controverted by the evidence, the summary

judgment will be upheld. Appellees must show that each of

the independent arguments alleged in the motion is

insufficient to support the summary judgment. See Tilotta v.

Goodall, 752 S.W.2d 160, 161 (Tex.App.--Houston[1st

Dist.] 1988, writ denied).

In their pleadings, appellees rely upon the same

contract appellants relied ‘upon to establish a contractual

contribution. The contract provided for reciprocal indemnity

obligations. Based upon our discussion of appellants’ three

points of error, we find that appellees’ reciprocal indemnity

obligations fail to establish a right for contractual

contribution. We overrule appellees’ cross-point.

Accordingly, we affirm the judgment of the trial

court.

/s/ Robert E. Morse, Jr.

Former Justice

Judgment rendered and Opinion filed July 1, 1993.

Panel consists of Justices Robertson, Cannon and Morse

(sitting by designation).

Publish - Tex. R. App. P. 90.

3la

APPENDIX C

BELL & MURPHY

ATTORNEYS AT LAW

1300 POST OAK BOULEVARD

20th FLOOR

HOUSTON, TEXAS 77056-3095

(713) 871-6700

EDWARD J. MURPHY FAX (713) 871-6767

September 3, 1993

Richard E. Windhorst, Jr.

Office of the Clerk

Fifth Circuit Court of Appeals

600 Camp Street

New Orleans, LA 70130

RE: Cause No. 93-2138; Hamilton vs. Amoco vs.

Woodson Construction Co.; In the United

States Court of Appeals for the Fifth Circuit

Our Ref.: 166-25

Dear Mr. Windhorst:

By letter of August 24, 1993, attorneys for appellee

Woodson Construction Company sent the Court a letter

attaching a very recent Texas appellate court opinion, Man

GHH Logistics Gmbh v. Emscor, Inc., No. C14-92-01254-

CV (Tex. App.--Houston [14th Dist.] July 1, 1993). For

reasons stated in this letter, Amoco submits that the Man

GHH case clearly supports Amoco’s position on appeal

rather than Woodson’s position.

32a

Richard E. Windhorst, Jr.

September 3, 1993

Page 2

The operative facts of Man GHH case were similar to

this case. A party that had settled a personal-injury claim,

thus abandoning its statutory and common-law claims for

contribution, sought a recovery of both indemnity and

contribution based on the contract between the parties.

The appellate court in Man GHH denied any

recovery. It defined indemnity as being a recovery for all

losses, including losses caused by the negligence of the party

seeking indemnity. (Slip op. at 4-5) The appellate court

denied indemnity because the contract at issue did not meet

the express-negligence test of Ethyl Corp. v. Daniel, 725

S.W.2d 705 (Tex. 1987). The appellate court defined

contribution as being recovery only for that portion of the

loss attributable to the negligence of the party that did not

pay the settlement. (Slip op. at 5). The appellate court

denied contribution on the basis that the contract between the

parties did not contain any provision that could be interpreted

as calling for contribution.

Under Man _GHH, then, the dispositive issue is

whether the contract requires the non-settling party to pay in

proportion to that party’s negligence. In this case, the

contract between Woodson and Amoco does indeed require

Woodson to pay in proportion to its negligence.

The critical provision in the Woodson-Amoco contract

is the following:

The Contractor (Woodson) shall indemnify

and save Company (Amoco) harmless from

and against any and all losses . . . caused by

33a

Richard E. Windhorst, Jr.

September 3, 1993

Page 3

or resulting from the negligence of the Contractor .

. or from poor, improper or unworkmanlike

performance. . . and the Contractor agrees to

reimburse Company for all sums which Company

may pay. . . in settlement of any claim on account

thereof...

This provision is different from the provision at issue in the

Man GHH case in every critical respect.

First, in Man GHH, the court said that "[t]here is no

agreement that appeliees will reimburse appellants for any

voluntary settlements made with any plaintiffs." (Slip op. at

5). Here, by contrast, Woodson specifically “agrees to

reimburse Company for all sums which Company may pay.

. in settlement of any claim."

Second, the Man GHH court said that "[t]he contract

provision does not mention ‘contribution,’ and fails to

discuss any apportionment of fault." (Slip op. at 5).

Although the Woodson-Amoco contract may not use the

word “contribution,” it specifically states that Woodson is

obligated to Amoco only to the extent of Woodson’s

"negligence," or its "poor, improper or unworkmanlike

performance," which language unmistakably incorporates the

concept of apportionment.

Third, the Man GHH court said that "[t]he contract

provision also fails to set forth any intent by the parties for

« “aim for reimbursement." (Slip op. at 5). Here, by

contrast, the Woodson-Amoco contract specifically does

incorporate a provision for reimbursement, using that very

word.

Richard E. Windhorst, Jr.

September 3, 1993

Page 4

If those textual differences alone were not enough, the

evidence of record also shows that the parties specifically

contemplated that Woodson would reimburse Amoco in

proportion to Woodson’s fault. Louis Woodson, the

president of Woodson Construction, testified that the

Woodson-Amoco contract meant:

We hold you (Amoco) harmless for things that

we do at Woodson Construction Company but

not what Amoco does or causes Woodson to

do.

(R. 1073). Amoco plainly had the same understanding, as

evidenced by the fact that it is not seeking to recover that

portion of the loss arising out of its own negligence, but only

for that portion of the loss arising out of Woodson’s

negligence.

In our case, of course, Woodson and Amoco have

stipulated that each party was 50% at fault in the underlying

casualty, and that Amoco’s settlement payment of $6,025,000

was reasonable and necessary. Amoco submits that on the

facts of our case, the Man GHH court would permit Amoco

to recover 50% of the settlement amount, or $3,012,500,

because the Woodson-Amoco contract contains all of the

terms that the contract at issue in Man GHH lacked.

35a

Richard E. Windhorst, Jr.

September 3, 1993

Page 5

Amoco appreciates the Court’s consideration of its

views concerning the Man GHH case.

Very truly your,

BELL & MURPHY

/s/ Edward J. Murphy

Edward J. Murphy

Gerard J. Kimmitt

Attorneys for Appellant

Amoco Production Company

JFW\alc

C:\apps\docs\jfw\ 166-25\a166-25.01

cc: Bradley M. Bingham, Esq.

Bingham & Mann

1001 Fannin, Suite 1212

Houston, Texas 77002

36a

APPENDIX D

RAY HARDY DIST. CLERK

HARRIS COUNTY TEXAS

1987 NOV 19 PM 4:47

NO. 87-51143

ROBERT LEE HAMILTON §

and GWENDOLYN MARIE §

HAMILTON, Individually §

and as Next Friend of §

Minors, CLINTON §

HAMILTON and AMBER §

HAMILTON, and CHESTER §

HAMILTON and EVELYN §

HAMILTON §

VS.

AMOCO PIPELINE COMPANY

NOTICE

FILED

DEPUTY

IN THE DISTRICT

COURT OF

HARRIS COUNTY,

LteBAAS

215TH JUDICIAL

DISTRICT

TO: PLAINTIFF, ROBERT LEE HAMILTON, et al, et

ux, by and through his attorney of record, Joseph D.

Jamail, Esq., Jamail and Kolius, 3300 One Allen

Center, Houston, Texas 77002

CLERK, U.S. DISTRICT COURT

RECEIVED

NOV 10 1987

37a

You are hereby notified that on the 19th day of

November, 1987, Amoco Pipeline Company, Defendant in

the above-entitled and numbered cause, filed in the United

States District Court for the Southern District of Texas,

Galveston Division, its petition for removal and bond, copies

of which are attached hereto, for the purposes of removing

the above-entitled and numbered cause to the District Court

of the United States for the Southern District of Texas,

Galveston Division, and has filed with the district clerk of

Harris County, Texas, a copy of said petition, thereby

removing said cause.

Respectfully submitted,

CLANN, BELL & MURPHY

By: _/s/ Edward J. Murphy

Edward J. Murphy

TBA #14697500

Gerard J. Kimmitt, II

TBA #11427500

20th Floor, Allied Bank Tower

1300 Post Oak Boulevard

Houston, Texas 77056

(713) 871-0333

ATTORNEYS FOR DEFENDANT

AMOCO PIPELINE COMPANY

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the

foregoing Notice was mailed certified mail, return receipt

requested, to Joseph D. Jamail, Jamail & Kolius, 3300 One

Allen Center, Houston, Texas, 77002, on this 19th day of

November, 1987.

/s/ Vicky J. Davis

WW 166.25 Vicky J. Davis

38a

CLERK U S DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

FILED

NOV 19 1987

JESSE E. CLARK, CLERK

BY DEPUTY

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

GALVESTON DIVISION

ROBERT LEE HAMILTON §

and GWENDOLYN MARIE §

HAMILTON, Individually §

and as Next Friend of §

Minors, CLINTON §

HAMILTON and AMBER §

HAMILTON, and CHESTER §

HAMILTON and EVELYN §

HAMILTON §

§ C. A. NO.

VS. G-87-405

AMOCO PIPELINE COMPANY

BOND

KNOW ALL MEN BY THESE PRESENTS that

Amoco Pipeline Company is held and firmly bound to Robert

Lee Hamilton, et al, et ux, plaintiff in the above-entitled and

numbered cause, his successors and assigns, in the sum of

FIVE HUNDRED AND NO/00 DOLLARS ($500.00), for

the payment of which well and truly to be made we send

ourselves, our successors and assigns, jointly and severally,

by these presents, upon condition nevertheless that

39a

WHEREAS, the said plaintiff has brought suit of a

civil nature in the 215th Judicial District of Harris County,

Texas, No. 87-51143, against defendant; and

WHEREAS, defendant simultaneously with the filing

hereof is filing its petition in United States District Court for

the Southern District of Texas, Galveston Division, for the

removal of such suit to the United States District Court for

the Southern District of Texas, Galveston Division, and

intends immediately thereafter to file its petition with the

district clerk of Harris County, Texas, according to the

provision of the Act of Congress in such cases made and

provided,

NOW, THEREFORE, the condition of this obligation

is such that if the said United States District Court should

determine that such suit was wrongfully and improperly

removed to said United States District Court, the said

defendant shall well and truly pay all costs and disbursements

incurred and to that end has deposited herewith the cash sum

of FIVE HUNDRED AND NO/100 DOLLARS ($500.00),

to which the clerk of this court is authorized irrevocably to

pay to the plaintiff if so directed by the Court.

Executed this 19th day of November, 1987.

Respectfully submitted,

By: war Murph

Edward J. Murphy

Admissions No. 5174

20th Floor, Allied Bank Tower

1300 Post Oak Boulevard

Houston, Texas 77056

(713) 871-0333

40a

ATTORNEYS FOR DEFENDANT

AMOCO PRODUCTION COMPANY

OF COUNSEL:

CLANN, BELL & MURPHY

A Professional Corporation

Gerard J. Kimmitt, Il

20th Floor, Allied Bank Tower

1300 Post Oak Boulevard

Houston, Texas 77056

(713) 871-0333

WW 166.25

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the

foregoing Bond was mailed certified mail, return receipt

requested, to Joseph D. Jamail, Jamail & Kolius, 3300 One

Allen Center, Houston, Texas, 77002 on this 19th day of

November, 1987.

/s/_ Vicky J. Davis

Vicky J. Davis

4la

CLERK, U.S. DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

FILED

NOV 19 1987

JESSE E. CLARK, CLERK

BY DEPUTY

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

GALVESTON DIVISION

ROBERT LEE HAMILTON §

and GWENDOLYN MARIE §

HAMILTON, Individually §

and as Next Friend of §

Minors, CLINTON §

HAMILTON and AMBER §

HAMILTON, and CHESTER §

HAMILTON and EVELYN §

HAMILTON §

§ C. A. NO.

VS. § G-87-405

AMOCO PIPELINE COMPANY §

PETITION FOR REMOVAL

COMES NOW Amoco Pipeline Company, hereinafter

"Amoco", a defendant herein, and files this petition for

removal of a suit enumerated Cause No. 87-51143 brought

by Robert Lee Hamilton, et al, et ux, plaintiff, from the

215th Judicial District Court of Harris County, Texas, where

the suit was instituted, to the United States District Court for

the Southern District of Texas, Galveston Division, and,

expressly reserving all questions other than that of removal,

respectfully shows the Court the following:

42a

Amoco is the defendant in the civil action brought

against it in the 215th Judicial District Court of Harris

County, Texas; copies of the citation and petition are

attached hereto and constitute all process, pleadings and

orders served upen Amoco in said action.

Il.

The aforesaid action was commenced by the service

of process consisting of the citation upon Prentice-Hall

Corporation System, Inc., Amoco’s registered agent for

service of process, on November 13, 1987.

Ill.

The above-described action is one of which this court

has original jurisdiction under the provisions of 28 U.S.C.A.

§ |332 (diversity), and is oné which may be removed to this

court by the petitioner/defendant herein pursuant to the

provisions of 28 U.S.C.A. § 1441 in that it is a civil action

wherein the matter in controversy exceeds the sum or value

of $10,000 exclusive of interest and costs.

IV.

At the time of the service of the citation and petition,

petitioner was, and now is, a corporation duly organized and

existing under and by virtue of the laws of the state of Maine

with its principal office and place of business in Illinois. At

the time of the service of the summons and complaint in this

action, the plaintiffs were and still are citizens of the state of

Louisiana.

43a

Because complete diversity exists and none of the

parties are citizens of the State of Texas, Amoco is

incorporated in Maine and has its principal place of business

in Illinois, plaintiffs are citizens and residents of Louisiana,

this case is properly removable under 46 U.S.C. § 1441.

Amoco files and presents herewith a bo with good

and sufficient surety in the sum of FIVE HUNWRED AND

NO/100 DOLLARS ($500.00) conditioned and required by

the acts of Congress on that behalf duly made and provided,

that petitioner will pay the costs and disbursements incurred

by reason of this removal proceeding should it be determined

that this case is not removable or is improperly removed.

WHEREFORE, PREMISES CONSIDERED, Amoco

prays that this petition be accepted and the aforesaid bond

approved by this Honorable Court as good and sufficient and

that the aforesaid action now pending against it in the 215th

Judicial District Court of Harris County, Texas, be removed

therefrom to the United States District Court for the Southern

District of Texas, Galveston Division, and that this case

proceed in this court as a properly removed cause and that

Amoco have such other, further, and different relief as to

this court may seem just and proper in the premises.

44a

Respectfully submitted,

By:_/s/_Edward J. Murphy _

Edward J. Murphy

Admissions No. 5174

20th Floor, Allied Bank Tower

1300 Post Oak Boulevard

Houston, Texas 77056

(713) 871-0333

ATTORNEYS FOR DEFENDANT

AMOCO PIPELINE COMPANY

OF COUNSEL:

CLANN, BELL & MURPHY

A Professional Corporation

Gerard J. Kimmitt, II

20th Floor, Allied Bank Tower

1300 Post Oak Boulevard

Housion, Texas 77056

(71. 371-0333

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the

foregoing Petition for Removal was mailed certified mail,

return receipt requested ‘9 Joseph D. Jamail, Jamail &

Kolius, 3300 One Allen Center, Houston, Texas, 77002 on

this 19th day of November, 1987.

s|_ Vicky J. Davi

Vicky J. Davis

WW 166.25

45a

VERIFICATION

THE STATE OF TEXAS §

COUNTY OF HARRIS §

EDWARD J. MURPHY, being duly sworn, deposes

and says:

I am a member of the firm of Clann, Bell &

Murphy, a Professional Corporation, attorneys for

Amoco Pipeline Company, Defendant herein, and |

have read the foregoing Petition for Removal and

know the contents thereof. The same is true to the

best of my knowledge and belief except as to those

matters therein alleged upon information and belief,

and as to those matters, I believe them to be true.

The sources of my information and the grounds of my

belief, as to the matters herein alleged upon

information and belief, are records and documents of

the Amoco Pipeline Company available to me as one

of their attorneys.

_/s/_Edward J. Murphy _

EDWARD J. MURPHY

SUBSCRIBED AND SWORN TO before me, the

undersigned authority, this 19th day of November, 1987.

Notary Public in and for

the State of TEX AS

My Commission Expires:

Vicky J. Davis

Notary Public - State of Texas

My Commission Expires 6/4/89

WW 166.25

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.