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Phillips v. Dow Chemical Co.11/30/2005
ral rule of non-liability for premises owners created by section 95.003, but emphasized, in particular, subsection (1), the requirement of a showing that Dow had exercised or retained some control, beyond the right to order work to start or stop, to inspect progress, or to receive reports. See Tex. Civ. Prac. & Rem. Code Ann. ยง 95.003(1).
Dow first demonstrated that its hold-harmless agreement with Sulzer, the general contractor for the cleanup project for Styrene 2, expressly disclaimed control over the project. Paragraph 2 of the hold-harmless agreement in favor of Dow, which delineated contractor responsibilities, stated that Sulzer was an independent contractor for the project and required to "assume all of the rights, obligations, and liabilities" applicable to Sulzer as an independent contractor. The same paragraph expressly disclaimed any right of Dow to direct the cleanup project by further stating that
Any provisions in this Contract or in any contract or purchase order to which this Contract applies which may appear to give DOW the right to direct [Sulzer] as to the details of doing the work covered by that contract or purchase order or to exercise a measure of control over the work shall be deemed to mean that [Sulzer] shall follow DOW's desires in the result of the work only. Neither [Sulzer] nor any its employees or agents shall be considered an employee or agent of DOW, nor shall any partnership, co-venture, or joint-employer relationship be created by virtue of this Contract, any contract or purchase order to which this Contract is applicable, or the performance of any of them. All persons engaged by [Sulzer], either as employees or agents, to assist [Sulzer] in the performance of this Contract or any contract or purchase order to which this Contract applies shall be of [Sulzer's] own selection, for its own account, at its own expense, and under its supervision.
(Emphasis added.) The summary judgment record shows that ISI and Altair representatives executed hold-harmless agreements in favor of Dow containing the same provision.
In addition to precluding Dow from controlling or directing the repair work on its Styrene 2 unit, except as to its "desires" for the results of the work, this provision of the hold-harmless agreements negated, in advance, any contractor's doubts about whether Dow had control over the repair work, a right to control it, or any responsibility for it, whether arising from Dow's contracts with Sulzer, ISI, or Altair, or any other contract or purchase order derived from those contracts. Construing virtually identical terms in Dow Chem. Co. v. Bright, 89 S.W.3d 602, 606--07 (Tex. 2002), the supreme court ruled that the premises owner had no right of control over its subcontractor and therefore owed no duty to the injured plaintiff.
Concerning the scaffolding from which Stewart fell, Dow's motion demonstrated, through deposition testimony attached to the motion for summary judgment, that ISI had responsibility for erecting the scaffolding around the styrene unit and for inspecting it at the end of every shift. Dow's summary-judgment evidence further demonstrated that Dow took no part in those inspections.
Dow's motion for traditional summary judgment argued that, pursuant to the express provisions of its hold-harmless agreements with Sulzer, ISI, and Altair, therefore, any minimal control that Dow might have had over the project did not extend beyond the end result requested. Accordingly, Dow contended the hold-harmless agreement precluded extending to Dow control over the cleanup project or the power to direct the operative details of the work performed by Sulzer, the general contractor; or the work perfo
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