Martin K. Eby Construction Company, Inc. v. OneBeacon Insurance Company

Filing 270

MEMORANDUM AND ORDER. Judge Brown's order of February 11, 2011 (Doc. 119 ) is set aside to the extent he ruled that Eby is obligated to indemnify KBR. See order for details. Signed by District Judge Monti L. Belot on 9/17/2012. (aa)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MARTIN K. EBY CONSTRUCTION
COMPANY, INC.,
Plaintiff,
v.
ONEBEACON INSURANCE COMPANY,
Defendant.
CONTINENTAL CASUALTY COMPANY,
et al.,
Plaintiffs,
v.
ONEBEACON INSURANCE COMPANY,
successor in interest to
COMMERCIAL UNION INSURANCE
COMPANY, et al.,
Defendants.

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CIVIL ACTION
No.

08-1250-MLB

CIVIL ACTION
No.

08-2392-MLB

MEMORANDUM AND ORDER
Before me are the following:
1.

Eby’s argument that Judge Wesley E. Brown’s Memorandum
and Order of February 22, 2011 (Doc. 119) is “in
error” (Doc. 237 at 21-25);

2.

OneBeacon’s argument that Judge Brown’s Memorandum and
Order entering summary judgment against Eby should be
“reversed” (Doc. 256 at 6-29);

3.

KBR’s response to Eby’s argument (Doc. 267);

4.

Eby’s reply (Doc. 268); and

5.

KBR’s surreply (Doc. 269).

Judge Brown ruled that Eby must indemnify KBR for its costs and
attorneys’ fees in connection with the Texas lawsuit in which the jury

found in favor of KBR.

It does not appear that any party sought

timely reconsideration of Judge Brown’s ruling.

Indeed, it was not

until March 2012 that Eby raised its “Judge Brown’s decision is in
error”

argument.

essentially

One

announced

month

its

later,

agreement

in

April

2012,

OneBeacon

with

Eby’s

argument.

Not

surprisingly, KBR has opposed any reconsideration of Judge Brown’s
ruling, arguing that reconsideration is untimely and, in any event,
that Judge Brown’s ruling was and remains correct.

Albeit with some

reluctance, I allowed Eby and then KBR to file, respectively, a reply
and surreply. The parties’ arguments are mostly variants of those
which they made, or could have made, in earlier submissions.
The threshold question is whether Eby and OneBeacon’s arguments
should be entertained at all.

In their submissions (Docs. 237 and

256), both launch into their criticisms of Judge Brown’s ruling
without so much as a passing nod to rules.

KBR responds by pointing

to local rule 7.3 which requires that motions to reconsider nondispositive orders be filed within 14 days.

Eby replies that Judge

Brown’s ruling was not final under Rule 54(b) and thus can be
reconsidered at any time.
I find that I have the discretion to revisit Judge Brown’s
ruling. This is a fairly difficult case which was assigned to me
following Judge Brown’s death.

It makes sense to resolve disputed

issues on the merits rather than by technical application of rules
regarding time limits.

See Fed. R. Civ. P. 1 and local rule

1.1(b)(2).1 This is particularly true where, as here, the prior ruling

1

I have reviewed the following submissions which include
references to the indemnity issues: Docs. 70, 94, 95, 99, 101 and 108.
-2-

forms the foundation for several claims yet to be decided.
Factual History
The significant underlying facts are set out in Judge Brown’s
memorandum and order and are not disputed.

Somewhat simplified, in

1979, Eby contracted to build a water pipeline in Harris County,
Texas. KBR was the construction manager or “engineer” on the project.
There were old pipelines in the area, including a methanol pipeline
owned by Celanese. Sometime around 2006, a leak was discovered in the
methanol pipeline which, among other things, resulted in soil and
ground water contamination which required extensive (and expensive)
remediation.
Celanese sued Eby and KBR, claiming that its methanol pipeline
had been damaged during construction of the water pipeline.

The case

eventually went to a jury which determined that Eby had damaged the
methanol pipeline but that neither Eby nor KBR was aware of the
damage.

The jury rejected Celanese’s claim that KBR allowed Eby to

backfill the excavation with knowledge that the damaged pipeline could
leak.

The jury thus found that KBR was not liable to Celanese but,

of course, KBR incurred substantial attorneys’ fees and expenses in
defending the suit which it now seeks to recover from Eby on the
theory that Eby contractually agreed to indemnify KBR.
There

was

an

indemnity

provision

in

the

“CONSTRUCTION

SPECIFICATIONS” of the lengthy water pipeline project contract which
provided:
“The
contractor
[Eby]
agrees
that
he
has
sole
responsibility
for
the
protection
of
facilities,
structures, and properties inside and outside the limits of
construction and agrees to indemnify and hold harmless the
Owner, the Engineer [KBR], and owners of adjoining
-3-

properties from and against any and all damages, claims,
demands, suits, and judgment costs including attorney’s
fees and expenses for or on account of damage to property
of any person, firm, corporation, company, or government
agency, or death of or injury to any person or persons
(including property and employees of the Coastal Industrial
Water Authority, Brown & Root, Inc., the Contractor, and
employees of the Contractor), directly or indirectly
arising from or caused by or in connection with the
performance or failure to perform any work provided for
hereunder by the Contractor, his subcontractors, or their
or the Contractor’s agents, servants, or employees. It is
agreed and understood that in the prosecution of work under
the provisions hereof, the Contractor is and shall continue
to be an independent contractor.
(Doc. 72 at 22).
The parties agree that Texas law applies but they disagree about
how it applies.
Texas Supreme Court Cases
Indemnity agreements have a litigious history in Texas courts.
The first case of note is Ethyl Corporation v. Daniel Construction
Company, 725 S.W.2d 705 (Tex. 1987). Both Ethyl and Daniel were found
negligent in a suit brought by an injured Daniel employee.

Ethyl, as

owner, sought indemnity from Daniel, as contractor, under a contract
provision which read:
Contractor shall indemnify and hold Owner harmless against
any loss or damage to persons or property as a result of
operations growing out of the performance of this contract
and caused by the negligence or carelessness of Contractor,
Contractor's employees, Subcontractors, and agents or
licensees.
A Texas court of appeals had found the provision did not require
Daniel to indemnify Ethyl for Ethyl’s own negligence or for the
parties’ concurrent negligence because it did not meet the “clear and
unequivocal test,” which was:
. . . whether the contract between the parties expresses in
clear and unequivocal language the intent of the indemnitor
-4-

to indemnify the indemnitee against the consequences of the
indemnitee's own negligence whether such negligence was the
sole proximate cause of the injury or a proximate cause
jointly and concurrently with the indemnitor's negligence.
Ethyl, 725 S.W.2d at 707 (internal citation omitted).
The Texas Supreme Court affirmed and announced its firm decision
to reject the “clear and equivocal test” in favor of the so-called
“express negligence doctrine” because:
As we have moved closer to the express negligence doctrine,
the scriveners of indemnity agreements have devised novel
ways of writing provisions 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. The result has been a plethora
of law suits to construe those ambiguous contracts. We hold
the better policy is to cut through the ambiguity of those
provisions and adopt the express negligence doctrine.
[P]arties seeking to indemnify the indemnitee from the
consequences of its own negligence must express that intent
in specific terms. Under the doctrine of express
negligence, the intent of the parties must be specifically
stated within the four corners of the contract. We now
reject the clear and unequivocal test in favor of the
express negligence doctrine. In so doing, we overrule those
portions of Joe Adams & Son v. McCann Construction Co.,
Ohio Oil Co. v. Smith, and Mitchell's, Inc. v. Friedman
stating it is unnecessary for the parties to say, “in so
many words,” they intend to indemnify the indemnitee from
liability for its own negligence. Joe Adams & Son v. McCann
Construction Co., 475 S.W.2d 721, 723 (Tex. 1971); Ohio Oil
Co. v. Smith, 365 S.W.2d 621, 624 (Tex. 1963); Mitchell's,
Inc. v. Friedman, 157 Tex. 424, 303 S.W.2d 775, 779 (1957).
Ethyl, 725 S.W.2d at 707-08.
Ethyl was followed two months later by Gulf Coast Masonry, Inc.
v. Owens-Illinois, 739 S.W.2d 239 (Tex. 1987).

A Gulf Coast employee

suffered a job-related injury and sued Owens.

Owens, in turn, sought

indemnity from Gulf Coast.

The indemnity provision provided:

Contractor [Gulf Coast] agrees to indemnify and save owner
[Owens-Illinois] harmless from any and all loss sustained
by owner by reason of damage to owner's property or
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operations, and from any liability or expense on account of
property damage or personal injury (including death
resulted therefrom) sustained or alleged to have been
sustained by any person or persons, including but not
limited
to
employees
of
owner,
contractor
and
subcontractors, arising out of or in any way connected with
or attributable to the performance or non-performance of
work here under by contractor, its subcontractor(s) and
their respective employees and agents, or by any act or
omission of contractor, its subcontractor(s), and their
respective employees and agents while on owner's premises,
or by defects in material or equipment furnished hereunder
. . .
The supreme court simply noted, without further explanation, that the
provision did not meet the “express negligence test” announced in
Ethyl and affirmed the trial court’s decision that the provision was
“unenforceable as a matter of law.”2 Gulf Coast, 739 S.W.2d at 239.
In Atlantic Richfield Company v. Petroleum Personnel, Inc., 768
S.W.2d 724 (Tex. 1989), a Petroleum Personnel employee was injured
while working on an Atlantic Richfield oil platform.

The employee

sued Atlantic Richfield which then sought indemnity from Petroleum
Personnel. This time the Texas Supreme Court found that the following
indemnity provision met the “express negligence test”:
CONTRACTOR
[PPI]
agrees
to
hold
harmless
and
unconditionally indemnify COMPANY [ARCO] against and for
all liability, cost, expenses, claims and damages which
[ARCO] may at any time suffer or sustain or become liable
for by reason of any accidents, damages or injuries either
to the persons or property or both, of [PPI], or of the
workmen of either party, or of any other parties, or to the
property of [ARCO], in any matter arising from the work
performed hereunder, including but not limited to any
negligent act or omission of [ARCO], its officers, agents
or employees.... (emphasis added).

2

The indemnity provision in Gulf Coast was drafted before the
decision in Ethyl, just as was the provision in this case. Although
the supreme court did not address the issue, the logical conclusion
is that it intended to apply the “express negligence test” whether or
not the indemnity provision was drafted before Ethyl.
-6-

The court concluded:
Therefore, we hold that this language meets the
requirements of the express negligence rule. Although the
language does not differentiate between degrees of
negligence, the language “any negligent act of ARCO” is
sufficient to define the parties' intent. Usage of the
terms “joint,” “concurrent” or “comparative contractual”
would not add to the expression of intent to exculpate ARCO
for its negligence.
Atlantic

Richfield,

768

S.W.2d

at

726

(footnote

omitted).

In

addition, the court explained why the provision in Gulf Coast did not
satisfy the “express negligence test”:
Although the agreement in Gulf Coast specified the
contractor's duty to indemnify the owner for claims
resulting from the contractor's acts, it failed to state,
with equal specificity, the obligation to indemnify for
claims resulting from acts of other parties (i.e. owner).
Further, the contractor may have reasonably assumed that if
it were to indemnify the owner for the acts of other
parties, this requirement also would have been stated in
specific terms.
In 1994, the Texas Supreme Court decided Fisk Electric Company
v. Constructors & Associates, Inc., 888 S.W.2d 813 (Tex. 1994).

An

employee of Fisk was injured on the job site and filed a negligence
action against Constructors. Constructors sought indemnity from Fisk
for Constructors’ attorney’s fees and expenses.
numerous

courts

of

appeal

allowed

Constructors

One of Texas’
to

recover

its

attorneys fees and costs under an indemnity provision which admittedly
did

not

comply

with

the

“express

negligence

test”

because

the

provision did not expressly indemnify Constructors’ own negligence.3

3

The court of appeals opinion, 880 S.W.2d 424 (Tex.App.1993) sets
out the provision:
... [Fisk] shall indemnify, hold harmless, and defend
[Constructors], ... from and against all claims, damages
losses, and expenses, including but not limited to
attorney's fees, arising out of or resulting from the
performance of [Fisk's] work ... provided that any such
-7-

The supreme court said there could be no recovery:
We hold that no obligation to indemnify an indemnitee for
the costs or expenses resulting from a claim made against
it for its own negligence arises unless the indemnification
agreement complies with the express negligence test.
Therefore, we reverse the judgment of the court of appeals
and render judgment for Fisk.
888 S.W.2d at 813-14.
The Court also noted that Texas courts of appeals “. . . have
split

in

their

application

of

the

express

negligence

test

in

determining whether an indemnitor [here, Eby] must pay the costs of
defense for an indemnitee [here, KBR] accused of negligence.”
court clearly resolved the split and then explained:
The express negligence requirement is not an affirmative
defense but a rule of contract interpretation. See Monsanto
[Monsanto Co. v. Owens–Corning Fiberglas, 764 S.W.2d 293,
296 (Tex. App.—Houston [1st Dist.] 1988, no writ)]. Issues
of contract interpretation are determinable as a matter of
law. See Gulf Coast Masonry [Inc. v. Owens–Illinois, Inc.,
739 S.W.2d] 239-40 (Tex. 1987).
This Court in Ethyl
established that indemnity provisions that do not clearly
provide for indemnification for the indemnitee's own
negligence do not, as a matter of law, indemnify the
indemnitee for its own negligence. Fisk's obligation to pay
attorney's fees arises out of its duty to indemnify. Absent
a duty to indemnify there is no obligation to pay
attorney's fees. Cases from the courts of appeals holding
to the contrary are hereby disapproved.
* * *
By Constructors' own admission, if the plaintiff in the

claim, damage, loss, or expense (a) is attributable to
bodily or personal injury, sickness, disease, or death, or
patent infringement, or to injury, ... and (b) is caused in
whole or in part by any negligent act or omission or any
act or omission resulting in the strict liability of [Fisk]
or anyone directly or indirectly employed by it[,] anyone
for whose acts it may be liable, or is caused by or arises
out of the use of any products, material, or equipment
furnished by [Fisk]....

-8-

The

underlying suit were successful, Fisk would not be
obligated to pay anything to Constructors because the
agreement fails to satisfy the express negligence test.
Yet, Constructors would have this Court impose on Fisk a
duty to bear the costs of defense. Such a holding would be
contrary to the reasoning of Ethyl. The purpose of the
express negligence rule “is to require scriveners to make
it clear when the intent of the parties is to exculpate an
indemnitee for the indemnitee's own negligence.” Atlantic
Richfield Co. v. Petroleum Personnel, Inc., 768 S.W.2d 724,
726 (Tex.1989). Either the indemnity agreement is clear and
enforceable or it is not. Such a determination should not
depend on the outcome of the underlying suit, but should be
established as a matter of law from the pleadings. The rule
proposed by Constructors regarding defense expenses would
leave indemnitors liable for a cost resulting from a claim
of negligence which they did not agree to bear.
Significantly, it would also leave indemnitors vulnerable
to indemnitees who might settle cases without admitting
negligence, leaving the indemnitor to pay the costs of
settlement and defense. Without an express reference in
the indemnification provision to claims based upon
negligence, there is no indemnity for defense costs
incurred in connection with a negligence claim irrespective
of whether the claim is ultimately proved.
Fisk, 888 S.W.2d at 814-16.
Three weeks after deciding Fisk, the supreme court ruled in
Houston Lighting & Power Company v. Atchison, Topeka and Santa Fe
Railway Company, 890 S.W.2d 455, 456 (Tex. 1994) that if parties were
seeking to indemnify an indemnitee against strict liability, the
agreement must so state.
The most recent Texas Supreme Court decision cited by KBR (Doc.
267 at 4) and Eby (Doc. 268 at 3) is D.R. Horton-Texas, Ltd. v. Markel
International Insurance Company, Ltd., 300 S.W.3d 740 (Tex. 2009).
The case does mention indemnity, but not in the context of the
“express negligence test.”

Rather, the case involved the following

scenario:
In this dispute, a general contractor, as an additional
insured on its subcontractor's commercial general liability
(CGL) insurance policy, seeks a defense and coverage from
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the CGL insurer for alleged construction defects. The
insurer claims that it has no duty, under the eight-corners
doctrine, to provide a defense because the homeowners'
petition in the underlying liability action did not
implicate the insured, the subcontractor that performed the
allegedly defective work. Further, because it has no duty to
provide a defense, it claims it has no duty to indemnify the
general contractor as well. We hold that the duty to
indemnify is not dependent on the duty to defend and that an
insurer may have a duty to indemnify its insured even if the
duty to defend never arises. In determining coverage, a
matter dependent on the facts and circumstances of the
alleged injury-causing event, parties may introduce evidence
during coverage litigation to establish or refute the duty
to indemnify.
The court goes on to discuss at some length the separate duties to
defend and indemnify in the context of liability insurance policies.
The court explains that the duty to defend is determined by the “eight
corners doctrine” [the allegations of the complaint plus the policy
language], but that the duty to indemnify is different:
The insurer's duty to indemnify depends on the facts
proven and whether the damages caused by the actions or
omissions proven are covered by the terms of the policy.
Evidence is usually necessary in the coverage litigation to
establish or refute an insurer's duty to indemnify. This is
especially true when the underlying liability dispute is
resolved before a trial on the merits and there was no
opportunity to develop the evidence, as in this case. We
hold that even if Markel has no duty to defend D.R. Horton,
it may still have a duty to indemnify D.R. Horton as an
additional insured under Ramirez's CGL insurance policy.
That determination hinges on the facts established and the
terms and conditions of the CGL policy.
This case, of course, does not involve indemnity under a CGL
policy or any other type of insurance.
Texas Courts of Appeal Decisions
Based on what I have read in the Texas Supreme Court opinions, in
the parties’ voluminous submissions and in my own research, there is
a large body of decisions from the fourteen Texas courts of appeal
which touch on indemnity agreements or provisions.
-10-

None of the

parties have cited a case which is directly on point and I have not
found one, either.

Nevertheless, the following cases may have some

relevance to the present dispute in the absence of a controlling Texas
Supreme Court case.
Safeco Insurance Company of America v. Gaubert, 829 S.W.2d 274,
281 (Tex. App. 1992) states the following general rule:
A contract for indemnity is read as any other contract.
Under principles of contract law, courts must ascertain and
give effect to the intentions of the parties as expressed in
the instrument. When the contract is unambiguous, we must
determine the rights and liabilities of the parties by
giving legal effect to the contract as written.
The indemnity agreement governs the parties' rights and
obligations, and indemnity agreements are strictly construed
in favor of the indemnitors, in this case, appellees. The
doctrine of strictissimi juris is a rule of substantive law
applicable after the parties' intent has been ascertained.
In determining the parties' intent in the indemnity
agreement, words and phrases are given their ordinary,
popular, and commonly accepted meaning. Further, we may not
expand the parties' rights or responsibilities beyond the
limits agreed upon by them in the contract.
(Internal citations omitted).
Texas Dept. of Transportation v. Metropolitan Transit Authority
of Harris County, 2002 WL 724927 (Tex. App.-Hous. (1 Dist.)) (not
designated for publication) ruled that the express negligence doctrine
is not applicable when the indemnitee is not seeking indemnification
for its own negligence, which is what KBR says is the situation here
(Doc. 99 at 6).

But, under Texas Court of Appeals rules, unpublished

opinions have no precedential value. Tex. R. App. P. 47.7.
In English v. BGP International, Inc., 174 S.W.3d 366, 370-71
(Tex. App. 2005) a Texas court of appeals observed:
Generally, when parties include an indemnity provision
in a contract, the duty to indemnify includes the duty to
pay for all costs and expenses associated with defending
-11-

suits against the indemnitee. See, e.g., Fisk Elec. Co. v.
Constructor's & Assoc., Inc., 888 S.W.2d 813, 815 (Tex.1994)
(“[An] obligation to pay attorney's fees arises out of [a]
duty to indemnify.”); Keystone Equity Mgmt. v. Thoen, 730
S.W.2d 339, 340 (Tex. App.-Dallas 1987, no writ) (“The
ordinary and commonly accepted meaning of the phrase
‘indemnify, defend, and save harmless' ... encompasses
attorney's fees.... We hold that [the] contractual promise
to ‘defend ... all suits in connection with the premises'
includes the obligation to pay for the defense of such
suits.”) (emphasis added). However, “absent a duty to
indemnify, there is no obligation to pay attorney's fees.”
Fisk Elec. Co., 888 S.W.2d at 815.
The problem is that the opinion, while citing some of the language
from Fisk, does not deal directly with Fisk’s holding that:
We hold that no obligation to indemnify an indemnitee for
the costs or expenses resulting from a claim made against it
for its own negligence arises unless the indemnification
agreement complies with the express negligence test.
Therefore, we reverse the judgment of the court of appeals
and render judgment for Fisk.
The Parties’ Positions
It is helpful to review the parties’ positions with respect to
the indemnity issue.

Early on, KBR took the position that Eby’s

obligations under the provisions are not subject to the express
negligence test finally adopted in Ethyl.

KBR’s argument was that:

Ethyl and Fisk limit the express negligence test to situations where
an indemnitee is seeking to be indemnified for its own negligence or
strict liability.

The difference in this case, according to KBR, is

that it is seeking to indemnified for Eby’s acts, not its own.

(Doc.

70 at 8-9).
Eby’s response did not directly state whether or not it takes the
position that the indemnity provision meets the express negligence
test.

Eby’s arguments were somewhat convoluted and are hard to

summarize. Eby’s conclusion was that the provision “. . . might serve

-12-

to indemnify KBR for Eby’s negligent actions; however, by its own
terms, it is not so broad as to indemnify KBR for its own acts . . .
which were the basis of [Celanese’s] claims.”

(Doc. 94 at 23).

KBR replied by restating that it is not seeking indemnity for its
own negligence or strict liability.
and

argued

that

negligence test.

the

indemnity

However, it changed its position

provision

does

meet

the

express

But it advanced this argument without squaring it

with Ethyl’s clear requirement that “[P]arties seeking to indemnify
the indemnitee [here, KBR] from the consequences of its [KBR’s] own
negligence must express that intent in specific terms.”

Instead, KBR

merely argued that Eby had “fair notice” under the unambiguous
language of the indemnity provision that it was agreeing to all
liabilities for all damages . . . .”

(Doc. 99 at 7 and 17-19).

Discussion
It simplifies the discussion to remove the surplus wording from
the indemnity provision.

When that is done, the provision reads:

Eby agrees to indemnify and hold harmless KBR from and
against any damages, claims, demands, suits, and judgment
costs including attorney’s fees and expenses for or on
account of damage to property directly or indirectly arising
from or caused in connection with the work by Eby.
A couple of things are immediately apparent: (1) the provision
does not contain the word “negligence” and (2) it does not mention
“work” done by KBR.

When the provision is compared to the indemnity

provision in Atlantic Richfield, supra, (which specifically refers to
any negligent act or omission of ARCO, the indemnitee), it is clear
that the provision in this case does not meet the express negligence
test because it does not clearly state that its intent is to indemnify
KBR from KBR’s own negligence.

Therefore, under the clear holding in
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Fisk, Eby is not obligated to indemnify KBR.
KBR attempts to distinguish Fisk by pointing out there was no
determination of the indemnitee’s negligence in Fisk, while it has
been determined that Eby’s actions and not KBR’s caused the damage to
the methanol line. (Doc. 269 at 3). But Fisk rejected this outcomebased approach under an indemnity contract. Just as in Fisk, the
indemnitee (KBR) was sued on claims that its own wrongful conduct
(both intentional and strict liability) caused damage and rendered it
liable. And just as in Fisk, if KBR had lost on those claims Eby would
not have been obligated to indemnify KBR because their agreement fails
to satisfy the express negligence test. Fisk said the indemnitee
cannot not recover its defense costs in such circumstances.4 “Without
an express reference in the indemnification provision to claims based
upon negligence, there is no indemnity for defense costs incurred in
connection with a negligence claim irrespective of whether the claim
is ultimately proved.” Fisk, 888 S.W.2d at 815-16.5 The determination
that KBR did not cause the damage does not create a duty to indemnify.
Conclusion
Judge Brown’s order of February 11, 2011 (Doc. 119) is set aside

4

See Fisk, 888 S.W.2d at 815 (“By Constructors’ own admission,
if the plaintiff in the underlying suit were successful, Fisk would
not be obligated to pay anything to Constructors because the agreement
fails to satisfy the express negligence test. Yet, Constructors would
have this court impose on Fisk a duty to bear the costs of defense.
Such a holding would be contrary to the reasoning of Ethyl.”)
5

Any reliance by KBR on Tesoro Petroleum Corp. v. Nabors
Drilling USA, Inc., 106 S.W.3d 118 (Tex. App. 2002) is misplaced.
Aside from the fact that a court of appeals decision could not alter
the clear holding of Fisk, Tesoro is distinguishable because the
indemnity agreement in that case met the express negligence test,
while the agreement between Eby and KBR does not.
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to the extent he ruled that Eby is obligated to indemnify KBR.
No motion to reconsider may be filed.
been fully briefed.

The indemnity issue has

It is now time to move this case to an ultimate

resolution.
The Pretrial Order noted a ruling on Eby’s duty to indemnify
could render moot many of the remaining claims. (Doc. 262 at 6). The
parties are directed to file a joint statement identifying any claims
that are not moot in view of the court’s ruling above. The statement
shall be filed by October 9, 2012, and shall not exceed three pages.
IT IS SO ORDERED.
Dated this

17th

day of September 2012, at Wichita, Kansas.

s/ Monti Belot
Monti L. Belot
UNITED STATES DISTRICT JUDGE

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