1. law, govt and politics

No. 03-0987
IN THE
SUPREME COURT OF TEXAS
RAWSON-KOENIG, INC., and GENERAL MOTORS CORPORATION,
P e titio n e rs ,
v.
HUDIBURG CHEVROLET, INC., and HUDIBURG CHEVROLET HOLDING,
INC.,
R e s p o n d e n ts .
On Petition for Review from the
Fifth Court of Appeals at Dallas, Texas
No. 05-02-01166-CV
REPLY BRIEF OF PETITIONER RAWSON-KOENIG, INC.
JAMES A. McCORQUODALE
State Bar No. 13464900
V IAL, H AMILTON, K OCH & K NOX, L.L.P.
1700 Pacific, Suite 2800
Dallas, Texas 75201-4632
Tel (214) 712-4400 Fax (214) 712-4402
ATTORNEY FOR PETITIONER
RAWSON-KOENIG, INC.
ORAL ARGUMENT REQUESTED
T ABLE OF C ONTENTS
Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
I. Summary of the Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. Argument and Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
A.
The failure of the underlying Anderson petition to allege any defect in the
service body manufactured by Rawson-Koenig is fatal to Hudiburg’s claim
for statutory indemnity under Chapter 82. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
B.
The summary judgment evidence conclusively established as a matter of
law that Hudiburg was independently liable to the Anderson plaintiffs. . . . . . . 4
1.
Hudiburg had a legal duty to inspect the assembly it had caused to
be made before delivering the assembly to its customer. . . . . . . . . . . . 4
2.
The summary judgment evidence conclusively established as a
matter of law that Hudiburg’s breach of its duty to inspect was a
cause of the loss. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.
C.
(a)
Thebert’s opinions on causation were not conclusory. . . . . . . 10
(b)
Hudiburg waived its objections that Thebert’s opinions on
causation are conclusory and “not premised on a valid legal
definition of cause” by not raising it in the trial court. . . . . . 14
Hudiburg was independently liable for selling the assembly it had
caused to be made. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Chapter 82 does not create any comparative partial indemnity scheme. . . . . 17
Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
-i-
INDEX OF AUTHORITIES
C ASES
AMS Construction Co. v. Warm Springs Rehabilitation Foundation,
94 S.W.3d 152 (Tex. App.–Corpus Christi, 2002, no pet.) . . . . . . . . . . . . . . . . . . . . 14
Anderson v. Snider, 808 S.W.2d 54
(Tex. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Beech Aircraft Corp. v. Jinkins, 739 S.W.2d 19
(Tex. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18
Birchfield v. Texarkana Memorial Hospital, 747 S.W.2d 361
(Tex.1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Brownlee v. Brownlee, 665 S.W.2d 111
(Tex.1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Champion Mobile Homes v. Rasmussen, 553 S.W.2d 237
(Tex. App.–Tyler 1977, writ ref’d n.r.e.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
City of Wilmer v. Laidlaw Waste Sys. (Dallas), Inc., 890 S.W.2d 459
(Tex. App.–Dallas 1994), aff’d, 904 S.W.2d 656,
38 Tex. Sup. Ct. J. 973 (Tex. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Cuyler v. Minns, 60 S.W.3d 209
(Tex. App.--Houston [14th Dist.] 2001, pet. denied) . . . . . . . . . . . . . . . . . . . . . . . . 11
Dailey v. Albertson’s, Inc., 83 S.W.3d 222
(Tex. App.–El Paso 2002, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
De La Morena v. Ingenieria e Maquinaria de Guadalupe, S.A.,
56 S.W.3d 652 (Tex. App.–Waco 2001, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Ft. Bend County Drainage Dist. v. Sbrusch, 818 S.W.2d 392
(Tex. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Global Drywall Sys. v. Coronado Paint Co., 104 S.W.3d 538
(Tex. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Grand Prairie I.S.D. v. Vaughan, 792 S.W.2d 944
(Tex.1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
-ii-
Harris County v. Smyly, 2004 Tex. App. Lexis 1732
(Tex. App.–Houston [14th Dist.] 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Haynes v. City of Beaumont, 35 S.W.3d 166
(Tex. App.--Texarkana 2000, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Hodgkins v. Bryan, 99 S.W.3d 669
(Tex. App.--Houston [14 Dist.] 2003, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
International Proteins Corp. v. Ralston-Purina Co., 744 S.W.2d 932
(Tex. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18
Johnson v. Abbe Engineering Co., 749 F.2d 1131
(5th Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Kennon v. Slipstreamer, Inc., 794 F.2d 1067
(5 th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Kopischke v. First Continental Corp., 187 Mont. 471, 610 P.2d 668
(Mont. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Kroger Grocery & Baking Co. v. Woods, 167 S.W.2d 869
(Ark. 1943) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Liberty Mut. Ins. Co. v. Garrison Contractors, Inc., 966 S.W.2d 482
(Tex. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
McBride v. Clayton, 140 Tex. 71, 166 S.W.2d 125
(Tex. 1942) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 19
McMahan v. Greenwood, 108 S.W.3d 467
(Tex. App.–Houston [14th Dist.] 2003, pet. denied) . . . . . . . . . . . . . . . . . . . . . . . . . 14
Mitchell Energy Corp. v. Ashworth, 943 S.W.2d 436
(Tex. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Monsanto Co. v. Cornerstones Mun. Util. Dist., 865 S.W.2d 937
(Tex. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Phillips v. Beaber, 995 S.W.2d 655
(Tex. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
-iii-
Picolo v. Flex-A-Bed, Inc., 466 So.2d 652
(La. App. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,6
Querner v. Querner, 668 S.W.2d 801
(Tex. App.–San Antonio 1984, writ ref’d n.r.e.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Red River National Bank v. Ferguson, 109 Tex. 287, 206 S.W. 923
(1918) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Rizkallah v. Conner, 952 S.W.2d 580
(Tex. App.--Houston [1st Dist.] 1997, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 15
Silk v. Terrill, 1995 Tex. App. Lexis 3390
(Tex. App.–Dallas 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Sinatra v. National X-Ray Products Corp., 141 A.2d 28
(N.J. 1958) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Thomasson v. A. K. Durnin Chrysler-Plymouth, Inc., 399 So. 2d 1205
(La. App. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Thompson v. Curtis, 2004 Tex. App. Lexis 1953
(Tex. App.–Dallas 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Travelers Indem. Co. v. Hunter Fan Co., 2002 U.S. Dist. Lexis 1238
(S.D.N.Y. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 7
S TATUTES
T EX. C IV. P RAC. & R EM. C ODE § 82.003(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
T EX. C IV. P RAC. & R EM. C ODE § 33.015(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
T EX. G OV’T C ODE § 311.023
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
R ESTATEMENTS
R ESTATEMENT (S ECOND) OF T ORTS § 324A (1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
-iv-
M ISCELLANEOUS
E.L. Kellett, Annotation, Seller’s Duty to Test or Inspect as Affecting His Liability for Product-Caused
Injury, 6 A.L.R.3d 12 (1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 8
Frank J. Wozniak, Annotation, Breach of Assumed Duty to Inspect Property as Ground for Liability to
Third Party, 13 A.L.R.5th 289 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
-v-
I. S UMMARY OF THE ARGUMENT.
The failure of the underlying Anderson petition to allege any defect in the service body
manufactured by Rawson-Koenig is fatal to Hudiburg’s claim for statutory indemnity under
Chapter 82.
The summary judgment evidence conclusively established as a matter of law that
Hudiburg was independently liable to the Anderson plaintiffs. (1) Hudiburg had a legal duty to
inspect the assembly it had caused to be made before delivering the assembly to its customer.
The cases support Rawson-Koenig’s position that Texas law requires a seller to conduct a
reasonable inspection for non-latent defects before introducing a product into the stream of
commerce. The facts of this case do not support Hudiburg’s call for the Court to abolish the
duty of a seller – particularly an assembling seller, as here – to conduct a reasonable inspection
for non-latent defects before introducing a product into the stream of commerce. (2) The
summary judgment evidence conclusively established as a matter of law that Hudiburg’s breach
of its duty to inspect was a cause of the loss. Hudiburg does not challenge Thebert’s statement
that “Hudiburg Chevrolet was negligent in failing to insure that the modifications to the vehicle
made at their directions were properly performed prior to selling the vehicle to Arthur Bewley.”
Instead, Hudiburg objected for the first time on appeal to Thebert’s opinion that Hudiburg’s
negligence contributed to cause the Anderson plaintiffs’ injuries by claiming that this opinion is
conclusory, thus depriving it of evidentiary value and relieving Hudiburg of any obligation to
object in the trial court. Hudiburg is wrong on both counts: Thebert’s causation opinion is not
conclusory and Hudiburg waived its objection that Thebert’s opinions on causation are
conclusory and “not premised on a valid legal definition of cause” by not raising it in the trial
-1-
court. (3) Hudiburg was independently liable for selling the assembly it had caused to be made.
As the uncontroverted Thebert Affidavit establishes, there were deficiencies in the installation
of the service body by Hudiburg’s contractor, B&M, which were a cause of the underlying
Plaintiffs’ injuries. The sale by Hudiburg of the vehicle with the B&M-created installation
deficiencies represents conduct on behalf of Hudiburg for which it would be independently
liable. The summary judgment evidence established a defect in the attachment of the service bed
to the chassis. Since that defect was created when Hudiburg caused the assembly to be made
from the component parts and by definition did not exist before the attachment was made.
Hudiburg’s sale of the defective assembly it had caused to be made is an “other act or omission
. . . for which the seller is independently liable” within the meaning of § 82.002(a). Thus, Chapter
82 does not permit Hudiburg to pass on its liability for selling the defective assembly to the
component part suppliers.
Chapter 82 does not create any comparative partial indemnity scheme. Hudiburg’s
argument that Chapter 82 created a scheme of “partial indemnity,” Hudiburg’s Brief at 24, has
no support in the case law or the statute’s legislative history, nor does Hudiburg support its
argument with citation to either. If the Legislature had intended such a radical change, the Court
must assume they would have done so explicitly rather than by implication.
-2-
II. ARGUMENT AND AUTHORITIES.
A.
The failure of the underlying Anderson petition to
allege any defect in the service body manufactured by
Rawson-Koenig is fatal to Hudiburg’s claim for
statutory indemnity under Chapter 82.
This issue has been fully briefed in Rawson-Koenig’s Brief on the Merits. The difficulties
pointed out there with Hudiburg’s position that the allegation that “the vehicle, including its fuel
system[,] was defective and unreasonably dangerous,” sufficed to allege a defect in each and eery
component part in the final, assembled vehicle, see Hudiburg’s Brief at 31, are not resolved by
any of the arguments Hudiburg makes. By this logic, the Anderson pleadings would be read to
allege a defect in every component part of the vehicle. For example, under Hudiburg’s proposed
reading, why wouldn’t Hudiburg be entitled to indemnity from the manufacturers of the spark
plugs, the fuel pump or the fuel filter – all component parts of the vehicle and the fuel system?
Hudiburg’s proposed reading allows no logical distinction between those manufacturers and
Rawson-Koenig.
Nothing in the legislative history of Chapter 82 or the issues it was meant to address
suggests that the legislature ever intended to impose a duty to indemnify under Chapter 82 on
every supplier of component parts for a product alleged to be defective; nor did it do so. Instead,
it imposed a threshold requirement for obtaining indemnity under Chapter 82 that the pleading
must identify the component part in question and allege that component part (not some
modification or alteration of that component part) to be defective. This is the most logical
construction of the phrase “allegedly caused by a defective product” in § 82.001(2) in the context
of component-part suppliers.
-3-
B.
The summary judgment evidence conclusively
established as a matter of law that Hudiburg was
independently liable to the Anderson plaintiffs.
1.
H u d ib u rg h a d a le g a l d u ty to in s p e c t th e a s s e m b ly it h a d
c a u s e d to b e m a d e b e f o re d e liv e rin g th e a s s e m b ly to its
c u s to m e r.
Common Law Duty. As Hudiburg notes, the cases support Rawson-Koenig’s position
that Texas law requires a seller to conduct a reasonable inspection for non-latent defects before
introducing a product into the stream of commerce. Kennon v. Slipstreamer, Inc., 794 F.2d 1067,
1073 (5 th Cir. 1986) (“a retailer has a duty to conduct a reasonable inspection for non-latent
defects”); Champion Mobile Homes v. Rasmussen, 553 S.W.2d 237, 243 (Tex. App.–Tyler 1977, writ
ref’d n.r.e.)1 . Further, a seller has duty to inspect products a seller has assembled or caused to
be assembled. See, e.g., Travelers Indem. Co. v. Hunter Fan Co., 2002 U.S. Dist. Lexis 1238 (S.D.N.Y.
2002) (a retailer can be held liable in negligence under New York law if it fails to detect a
dangerous condition that it could have discovered during a normal inspection while the product
was in its possession; here, retailer had assembled lamps and placed them on the display floor
before sale). Thus:
It has been recognized that a seller may in some instances be more than a mere
marketing conduit between manufacturer and consumer when he exercises
greater dominion or control over the product than would be required for a simple
sale. For example, a seller may actually change the nature of the product – as a
restaurateur who prepares food for consumption; he may otherwise prepare the
product for sale – as by mixing its ingredients and packaging it; he may make it
1
“We have found no Texas cases, and have been cited none, holding that a vendor has
a duty to inspect or test a product manufactured by another for latent defects either before or
after it has been sold to a third party. The weight of authority seems to be that the vendor has
no such burden. Accordingly, we hold that the vendor owes no duty to the manufacturer to
inspect for latent defects.” (citations omitted; emphasis added).
-4-
ready for use – as by installing or repairing it. A number of cases have held that
whenever a seller undertakes to perform functions other than the mere sale of the
product – for example, its preparation, installation, packaging, servicing, repair,
etc. – he has a duty to test and inspect it, and may be held liable for his failure
properly to do so.
E.L. Kellett, Annotation, Seller’s Duty to Test or Inspect as Affecting His Liability for Product-Caused
Injury, 6 A.L.R.3d 12, § 8 (1966).
Hudiburg urges the Court to “repudiate” this established law based on its assertion that
the latent/non-latent distinction is nothing more than a set of labels which Courts have applied
based on other underlying outcome-determinative determinations. Hudiburg Brief at 37-38. This
entirely misperceives the well-established principles of this doctrine.
Whether a defect is latent or non-latent depends on whether it is apparent by reasonable
inspection. A non-latent (or patent) defect is one which can be discovered by such an inspection
as would be made in the exercise of ordinary care and prudence. This is contrasted with a latent
defect, one which is hidden and which would not be discovered by a reasonably careful
inspection.2 What constitutes a reasonable inspection is a matter to be determined from the
2
Compare Kroger Grocery & Baking Co. v. Woods, 167 S.W.2d 869 (Ark. 1943) (moldy and
mildewed sack of chicken feed; the court stated that the jury had apparently taken the view that
the wet condition of the sack should have been observed by the seller, and that its failure to
inspect and observe such condition amounted to negligence. Thus, although defendant was the
seller and not the manufacturer, and did not package or otherwise handle the product itself, the
court held it to a duty to inspect for a defect occurring during its possession of the product,
where the defect could have been observed without opening the package.), with Picolo v. Flex-ABed, Inc., 466 So.2d 652, 654 (La. App. 1985) (non-manufacturing seller did not have duty to not
inspect the product prior to sale for non-apparent defects; “In his deposition, plaintiffs’ expert
engineer said the bed collapsed because of a defective weld. There is no mention in affidavits
or depositions of some other positive cause for the bed’s collapse. In his view, such defects
would not only be non-apparent but non-discoverable by a lay person. The defect here was
discovered by him only after having magnified the weld 30X (30 times) normal vision.
Additionally, both the testimony of plaintiffs’ expert and the owner of Flex-A-Bed indicate the
(continued...)
-5-
totality of circumstances of the particular case and must vary with the nature of the thing to be
inspected (e.g., goods in sealed packages are different from items commonly assembled by a
retailer, such as bicycles3 ) and the nature and gravity of the harm which is sought to be averted.4
The facts of this case do not support Hudiburg’s call for the Court to abolish the duty
of a seller – particularly an assembling seller, as here – to conduct a reasonable inspection for
non-latent defects before introducing a product into the stream of commerce. As the Thebert
affidavit attests:
[¶ 22] After receiving the modified vehicle from B & M Truck Equipment, with
the service body installed, Hudiburg did not adequately inspect the Seaton vehicle
to insure that B & M Truck Equipment had complied with Rawson-Koenig’s
instructions regarding installation of the service body. [¶ 23] Considering the
improper attachment of the service body on the vehicle and Hudiburg
2
(...continued)
facia attached to the bed’s structure tended to conceal the welds from view. In our view, this
engineer’s testimony was sufficient to prove the defective weld was the cause of the bed’s
collapse and the same was not readily visible or discoverable.”).
3
“From the public policy standpoint, it would be an enormous burden, and, ultimately,
an impossible one, to expect every retailer or other non-manufacturing seller to have all the
products that pass through its hands fully tested prior to sale. This would be the practical result
of finding a failure to use due care when a retailer failed to inspect or test a product. This is
especially true in situations involving the breaking open of sealed packages or containers.”
F RUMER & F RIEDMAN, P RODUCTS L IABILITY § 6.02[3].
4
See, e.g., Sinatra v. National X-Ray Products Corp., 141 A.2d 28, 32 (N.J. 1958) (“[W]hile
there have been differing views as to the proper scope of the ordinary vendor’s obligation to
inspect (compare Eldridge, Modern Tort Problems 269 (1941), with 2 Harper & James, [Torts]
1597 [1956]) we are satisfied that here National, as the exclusive distributor which actually
assembled, installed and serviced the X-ray unit, also had an inspection duty of locating defects
which could be ascertained by the exercise of reasonable care on its part. It may well be that the
distributor’s exercise of reasonable care would not disclose defects which the manufacturer’s
exercise of due care in the light of its own situation would have disclosed. Nevertheless, the
overriding principle of due care is applicable to both and there is ‘no hard and fast rule as to
latent defects’ and ‘what is reasonable care depends upon all the facts of the case.’ “) (citation
omitted).
-6-
Chevrolet’s actions prior to sale of the vehicle to Arthur Bewley, I believe
Hudiburg Chevrolet was negligent in failing to insure that the modifications to
the vehicle made at their direction were properly performed prior to selling the
vehicle to Arthur Bewley. An inspection by Hudiburg Chevrolet prior to delivery
of the vehicle to Arthur Bewley would have revealed the improper attachment of
the service body discussed in paragraphs 12-17 above. As reflected above,
Hudiburg Chevrolet’s negligence, which resulted in the vehicle’s being delivered
to Arthur Bewley with the service bed improperly attached to the back of the
Seaton vehicle, is causally related to the injuries at issue in the underlying lawsuit
filed by the Original Plaintiffs. [R.411-414.]
The duty to inspect of a seller to inspect for non-latent defects does not impose such
“serious costs,” Hudiburg Brief at 38, that it should be abolished. Other jurisdictions have
routinely found such a duty. See, e.g., Thomasson v. A. K. Durnin Chrysler-Plymouth, Inc., 399 So. 2d
1205, 1208 (La. App. 1981) (under Louisiana law, seller owes a duty of reasonable inspection and
is not required to search for latent, nonapparent defects; duty is heightened if seller has prior
notice of difficulties relating to the defect); Travelers Indem. Co. v. Hunter Fan Co., 2002 U.S. Dist.
Lexis 1238 (S.D.N.Y. 2002) (duty recognized under New York law); Kopischke v. First Continental
Corp., 187 Mont. 471, 480-481, 610 P.2d 668, 673 (Mont. 1980) (used car dealer has a duty to
discover and repair any defects which are patent or discoverable in the exercise of ordinary care).
Hudiburg’s alternative argument – that there is no need for the duty because “sellers are
already subject to strict products liability,” Hudiburg’s Brief at 39 – fails to consider the
substantial limitations placed upon such possible liability under House Bill 4. Under current
Texas law, the general rule is that “[a] seller that did not manufacture a product is not liable for
harm caused to the claimant by that product.” T EX. C IV. P RAC. & R EM. C ODE § 82.003(a) (eff.
Sept. 1, 2003). While the statute provides a few limited exceptions to this general rule,
Hudiburg’s premise that strict products liability law adequately encompasses any negligence-
-7-
based duty of a seller to inspect for non-latent defects is incorrect under current Texas law. In
fact, a negligence-based duty is quite different from strict products liability:
Where the seller has entirely omitted to make any tests and inspections, as is often
the case, the determination of the existence of duty, vel non, will also dispose of
the question of negligence. In such cases, if a duty was owed, the seller has been
negligent; if no duty was owed, he has not been negligent.
In many cases, however, the determination of liability requires a second step, to
wit: assuming that some duty of testing or inspection was owed, do the facts and
circumstances of the particular case indicate that defendant negligently breached
such duty? In answering such question, particular emphasis has been given to the
reasonableness of the tests or inspections sought to be imposed, and to the
effectiveness of the tests or inspections, if any, actually performed.
Hence, it has been held that a seller may be liable where the method of testing or
inspection adopted by him or his agent is shown to be ineffective; but there is no
liability where proper tests and inspections have, in fact, been made, even though
the defect may have escaped detection.
E.L. Kellett, Annotation, Seller’s Duty to Test or Inspect as Affecting His Liability for Product-Caused
Injury, 6 A.L.R.3d 12, § 2a (1966). Thus, recognizing the existence of the duty is not “actually
deciding breach or causation,” as Hudiburg argues. Hudiburg’s Brief at 38.
Duty Arising From Contract. Here, Hudiburg does not dispute that it had a contractual
duty under its contract with General Motors to conduct a pre-delivery inspection for defects;
it does dispute whether this acknowledged duty extended downstream.
When a person, corporation, or other entity voluntarily assumes a duty to inspect
property, a duty to perform the inspections carefully may arise and the breach of
that duty may subject the inspector to liability for injuries or damages caused by
the breach. In many cases the party injured is not the party for whom the
inspections were made, but a third party that the inspector may or may not have
intended to confer a benefit upon by performing its inspections.
-8-
Frank J. Wozniak, Annotation, Breach of Assumed Duty to Inspect Property as Ground for Liability to
Third Party, 13 A.L.R.5th 289, § 2a (1993). Under the R ESTATEMENT (S ECOND) OF T ORTS
§ 324A (1965):
One who undertakes, gratuitously or for consideration, to render services to
another which he should recognize as necessary for the protection of a third
person or his things, is subject to liability to the third person for physical harm
resulting from his failure to exercise reasonable care to protect his undertaking,
if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person,
or
(c) the harm is suffered because of reliance of the other or the third person upon
the undertaking.5
“Even where the negligence of the actor does not create any new risk or increase an existing one,
he is still subject to liability if, by his undertaking with the other, he has undertaken a duty which
the other owes to the third person.” Id. cmt d. For example:
The A Telephone Company employs B to inspect its telephone poles. B
negligently inspects and approves a pole adjoining the public highway. Because
of its defective condition the pole falls upon and injures a traveler upon the
highway. B is subject to liability to the traveler.
Id. illus. 2. Hudiburg’s contractual duty to inspect is no different here. As Hudiburg points out,
it undertook performance of an inspection, Hudiburg’s Brief at 45-46, but used untrained
personnel who did not know the difference between a proper attachment and an improper
5
See Ft. Bend County Drainage Dist. v. Sbrusch, 818 S.W.2d 392 (Tex. 1991) (discussing
§ 324A); Johnson v. Abbe Engineering Co., 749 F.2d 1131, 1132 (5th Cir. 1984) (“we hold that the
Texas courts would impose . . . those duties expressed in § 324A”).
-9-
attachment, Hudiburg’s Brief at 41. Under these circumstances, the duty rules stated in § 324A
apply.
2.
T h e s u m m a ry ju d g m e n t e v id e n c e c o n c lu s iv e ly e s ta b lis h e d a s
a m a tte r o f la w th a t H u d ib u rg ’s b re a c h o f its d u ty to in s p e c t
w a s a c a u s e o f th e lo s s .
Hudiburg does not challenge Thebert’s statement that “Hudiburg Chevrolet was
negligent in failing to insure that the modifications to the vehicle made at their directions were
properly performed prior to selling the vehicle to Arthur Bewley.” Instead, Hudiburg objected
for the first time on appeal to Thebert’s opinion that Hudiburg’s negligence contributed to cause
the Anderson plaintiffs’ injuries by claiming that this opinion is conclusory, thus depriving it of
evidentiary value and relieving Hudiburg of any obligation to object in the trial court. Hudiburg
is wrong on both counts: Thebert’s causation opinion is not conclusory and Hudiburg had an
obligation to raise this objection below in order to preserve it for review here. (The Court of
Appeals did not reach the question of Hudiburg’s objection to the Thebert Affidavit.)
(a)
Thebert’s opinions on causation were not conclusory.
“The affidavit of an . . . expert witness can support summary judgment if it meets the
requirements of Rule 166a.” Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991). Affidavits setting
forth specific supporting facts are not conclusory. While it is true that “affidavits consisting only
of conclusions are insufficient to raise an issue of fact,” Brownlee v. Brownlee, 665 S.W.2d 111, 112
(Tex.1984), this “does not mean that logical conclusions based on stated underlying facts are
improper.” Rizkallah v. Conner, 952 S.W.2d 580, 587 (Tex. App.--Houston [1st Dist.] 1997, no
pet.). Thus, “[i]n order to support a summary judgment, an expert’s affidavit must offer an
opinion (1) which has a reasoned, demonstrable basis and (2) which the expert is qualified to
-10-
state.” Cuyler v. Minns, 60 S.W.3d 209, 215 (Tex. App.--Houston [14th Dist.] 2001, pet. denied).
Hudiburg has never challenged Thebert’s qualifications.6 Thus, the only challenge here is
whether Thebert’s opinion on causation is a logical conclusion which has a reasoned basis in
stated underlying facts. If it is, then the causation opinion is not conclusory and is competent
evidence supporting the summary judgment.
6
Thebert attests: “[¶ 2] I am currently self-employed as an Engineering Consultant,
doing automotive crash analysis and reconstruction. Phases of my practice include vehicle
design, test and manufacture, and computer applications. I have over 40 years of experience in
automotive design, testing and crash performance analysis and evaluation.[¶ 3] Prior to starting
my engineering consulting practice, I worked for General Motors for over 30 years. From July,
1953 to May, 1959, I worked in the Engineering Test Laboratory, Physical Test Section, at
Chevrolet. There I primarily did brake testing and development. In May, 1959, I moved to
production Engineering at Chevrolet where I did early design liaison for assembleability and
serviceability, field problem evaluation and solution, and service parts engineering. In March,
1966, I began working in Chevrolet Research and Development. As part of my responsibilities,
I performed crash reconstruction and analysis. [¶ 4] In June, 1970, I was assigned to the
Chevrolet Division, Truck Body Design Group. Assignments included current and future vehicle
and component development in truck seating, active and passive restraint systems and steering
column mounting. In June, 1971, I began working In Engineering Analysis at General Motors.
There, I was responsible for new product review and analysis, and evaluation of current GM and
competitor vehicles. I also provided technical assistance to GM legal staff and outside counsel
in crash reconstruction, injury analysis, component performance, vehicle dynamics and crash
reconstruction technique development. [¶ 5] In November, 1980, I moved to Durability Test
and Development, Current Product Engineering, GM Engineering Staff. I was Chairman of a
Corporate Subcommittee responsible for coordination, development and standardization of test
methods and specifications. Tests covered every phase of vehicle development, certification of
compliance to performance regulations, and validation of established design characteristics for
all GM-produced cars, trucks and buses. I retired from General Motors in January, 1984 and
began my own consulting firm. [¶ 6] I have been a registered professional engineer since 1963.
I have been a member of the Society of Automotive Engineers since 1954. I have served on
several SAE technical and review committees including brakes, auto safety and accident
investigation. I am currently Chairman of SAE’s Impact and Rollover Test Procedure Standards
Committee. I have been a member of the Engineering Society of Detroit since 1958. I have also
been a member of the Association for the Advancement of Automotive Medicine since 1969
and am a past Director of that organization. I have given presentations and written papers on
the subject of automobile safety and I am currently a nationally certified accident
reconstructionist, an accredited professional forensic engineer, and a licensed master automotive
mechanic.” R.409-410.
-11-
Hudiburg’s argument that Thebert’s opinion on causation “is clearly a bare conclusion
that fails to provide the basic facts on which his opinion is based” and “does not offer any
supporting explanation providing the facts undergirding his conclusion.” Hudiburg’s Brief at 35,
is simply wrong. Thebert explains the factual basis of his causation opinion in considerable
detail:
[¶ 7] In developing my opinions in this case, I have relied on my inspection of
both accident vehicles and photographs taken during my inspection and by
others. I have also reviewed the police report of the accident, police photographs
and other photographs, vehicle and body maker’s specifications and information.
legal documents, depositions and summaries, vehicle inspection notice and site
information and collision reconstruction information. [¶ 8] This case incident
was the September 18, 1995, crash of two General Motors (GM) light duty trucks,
in Van Zandt County, Texas. The crash occurred on Interstate 20, at a location
consisting of two travel lanes each, east and westbound, with a recessed grassy
median. [¶ 9] Per the police report prepared by Investigator Scott W. Gee, an
eastbound 1992 Ford Explorer struck the left rear of a utility trailer towed by a
1987 Chevrolet 1-ton truck equipped with a Koenig service (utility) body. The
1987 Chevrolet was not a pickup truck, but rather had been sold by GM as an
incomplete vehicle, consisting of chassis and cab. [¶ 10] After impact by the
Explorer, the Chevrolet utility truck, driven by Mr. R.L. Seaton, and its trailer,
crossed the median, and entered the westbound lanes of 1-20. At this point the
utility truck was struck on its right side by a westbound 1991 Chevrolet pickup
truck driven by Mr. Ronald O. Anderson. Mr. Anderson’s truck was an extended
cab, 3/4-ton diesel powered pickup truck. [¶ 11] As a result of the Explorer’s
impact, of the Seaton truck’s trajectory across the non-level median, and/or the
impact to it by the Anderson pickup, the following significant aspects of the crash
took place. The Seaton utility truck was at least partially airborne prior to impact
by the Anderson pickup. Seaton’s heavily-laden trailer broke away from the utility
truck towing it. The Koenig service/utility body separated from the 1987
Chevrolet truck’s chassis. At their respective post-crash points of rest, the
Anderson pickup was upright, whereas the Seaton chassis-cab (now less its utility
body) was passenger (right) side down, having rolled 1/4 turn. The utility body
itself was upright, somewhat east of the truck chassis. The 1987 Chevrolet truck’s
fuel system was breached, and fuel-fed fires ensued, involving each truck. Mr.
Seaton sustained burn injury, and Mr. Anderson was burned and fatally injured.
[¶ 12] The primary crash factor, beyond Mr. Seaton’s loss of control, was
separation of his truck’s service/utility body from the truck’s chassis. This
separation pulled both fuel tanks’ filler systems apart, and would thus necessarily
-12-
allow liquid fuel exit. [¶ 13] The non-GM service/utility body was attached to the
truck’s frame at only four points, all of which were of poor construction. At the
front, one bolt was used at each frame rail, via a large new (non-GM) hole drilled
through the frame rail upper flanges. Rectangular steel spacers were used between
the frame and the added truck body, but not beneath the rail flange. Both bolts
pulled through the steel frame. [¶ 14] At its rear, the truck body was bolted to
extensions welded post-sale to the GM frame rails. Truck body separation here
occurred by total failure of those extensions-to-frame welds. [¶ 15] This utility
body installation did not comply with Koenig’s published Body Installation
Practices. Frame rail top flange holes are specifically avoided on Koenig’s R/V
Chevy body mounting instructions, and washers or spacers were to have been
used to distribute bolt head or nut clamping forces. [¶ 16] Once truck body
separation had taken place, frame bending, bowing and matchboxing more readily
occurred, causing damage to the truck fuel system. [¶ 17] Enhancement of this
post-crash fire did result from utility truck fuel system damage. That fuel system’s
major damage, however, would not have occurred but for separation of the
poorly attached service/utility body from the Seaton truck’s chassis. . . . [¶ 19]
The Seaton utility truck . . . was defectively completed and/or modified after it
left GM’s possession. [ ¶ 20] I understand that the Seaton vehicle was owned by
Arthur Bewley, who had purchased the vehicle from Hudiburg Chevrolet. Prior
to sale of the vehicle, the Seaton vehicle was shipped by General Motors to
Hudiburg Chevrolet, Inc. without a service body installed on the back of the
vehicle. [¶ 21] By reviewing the facts and Request for Admission responses by
Hudiburg Chevrolet, I understand that the Hudiburg Plaintiffs did not consult
with General Motors prior to the installation of the service body on the Seaton
vehicle and that the Hudiburg Plaintiffs were responsible for choosing both the
brand of the service body (RawsonKoenig) and an authorized dealer (B & M
Truck Equipment) to install the service body on the Seaton vehicle. [¶ 22] After
receiving the modified vehicle from B & M Truck Equipment, with the service
body installed, Hudiburg did not adequately inspect the Seaton vehicle to insure
that B & M Truck Equipment had complied with Rawson-Koenig’s instructions
regarding installation of the service body. [¶ 23] Considering the improper
attachment of the service body on the vehicle and Hudiburg Chevrolet’s actions
prior to sale of the vehicle to Arthur Bewley, I believe Hudiburg Chevrolet was
negligent in failing to insure that the modifications to the vehicle made at their
direction were properly performed prior to selling the vehicle to Arthur Bewley.
An inspection by Hudiburg Chevrolet prior to delivery of the vehicle to Arthur
Bewley would have revealed the improper attachment of the service body
discussed in paragraphs 12-17 above. As reflected above, Hudiburg Chevrolet’s
negligence, which resulted in the vehicle’s being delivered to Arthur Bewley with
the service bed improperly attached to the back of the Seaton vehicle, is causally
related to the injuries at issue in the underlying lawsuit filed by the Original
Plaintiffs. [R.411-414.]
-13-
This is far more than the “hint and innuendo” Hudiburg claims. Hudiburg’s Brief at 36.
It is a reasoned explanation as to why Thebert’s opinion on causation is a logical conclusion
which has a reasoned basis in stated underlying facts. As a result, Thebert’s causation opinion
is not conclusory and is competent evidence to support the summary judgment.
(b)
Hudiburg waived its objections that Thebert’s opinions on
causation are conclusory and “not premised on a valid legal
definition of cause” by not raising it in the trial court.
Hudiburg had an obligation to raise its objection that Thebert’s opinions on causation
are conclusory in the trial court. Because Hudiburg failed to make its objection in the lower
court,7 it has waived its complaint.8 A party must object in writing to the form of summary
judgment evidence and place the objections before the trial court, or its objections will be
waived. Grand Prairie I.S.D. v. Vaughan, 792 S.W.2d 944, 945 (Tex.1990).
7
“Hudiburg did not challenge the sufficiency of Rawson-Koenig’s supplemental motion
on the element of causation.” Hudiburg’s Brief at 34 n.8.
8
This Court has not squarely addressed the issue. The Courts of Appeals have generally
come to the contrary conclusion that “[a]n objection that an affidavit is conclusory is an
objection to the substance of the affidavit and may be raised for the first time on appeal.”
Thompson v. Curtis, 2004 Tex. App. Lexis 1953 (Tex. App.–Dallas 2004), citing City of Wilmer v.
Laidlaw Waste Sys. (Dallas), Inc., 890 S.W.2d 459, 467 (Tex. App.–Dallas 1994), aff’d, 904 S.W.2d
656, 660-61, 38 Tex. Sup. Ct. J. 973 (Tex. 1995). See also Hodgkins v. Bryan, 99 S.W.3d 669, 674
(Tex. App.--Houston [14 Dist.] 2003, no pet.) (“An objection that an affidavit is conclusory is
an objection to the substance of the affidavit that may be raised for the first time on appeal.”),
citing Harris County v. Smyly, 2004 Tex. App. Lexis 1732 (Tex. App.–Houston [14th Dist.] 2004);
McMahan v. Greenwood, 108 S.W.3d 467, 498 (Tex. App.–Houston [14th Dist.] 2003, pet. denied)
(“any objections relating to substantive defects (such as lack of relevancy, conclusory) can be
raised for the first time on appeal and are not waived by the failure to obtain a ruling from the
trial court”); Dailey v. Albertson’s, Inc., 83 S.W.3d 222, 225 (Tex. App.–El Paso 2002, no pet.);
Haynes v. City of Beaumont, 35 S.W.3d 166, 178 (Tex. App.--Texarkana 2000, no pet.); AMS
Construction Co. v. Warm Springs Rehabilitation Foundation, 94 S.W.3d 152, 156 (Tex. App.–Corpus
Christi, 2002, no pet.); De La Morena v. Ingenieria e Maquinaria de Guadalupe, S.A., 56 S.W.3d 652,
658 (Tex. App.–Waco 2001, no pet.); Rizkallah v. Conner, 952 S.W.2d 580, 587 (Tex.
App.--Houston [1st Dist.] 1997, no pet.).
-14-
Hudiburg’s complaint that Thebert’s opinion on causation “is not premised on a valid
legal definition of ‘cause,’ “ Hudiburg’s Brief at 34, is an objection to form which was waived
because it was not raised below. An expert may give an opinion regarding an ultimate issue such
as negligence as long as the opinion is confined to the relevant issues and is based upon proper
legal concepts. Birchfield v. Texarkana Memorial Hospital, 747 S.W.2d 361 (Tex.1987). An affidavit
does not have to set out the legal definitions of terms such as negligence or proximate cause in
order to avoid an objection that it is conclusory. See, e.g., Silk v. Terrill, 1995 Tex. App. Lexis 3390
(Tex. App.–Dallas 1995) (not designated for publication).9 Here, viewing Thebert’s affidavit as
a whole, the only conclusion is that Thebert’s opinion on causation was based on proper legal
concepts.
3.
H u d ib u rg w a s in d e p e n d e n tly lia b le f o r s e llin g th e a s s e m b ly it h a d
c a u s e d to b e m a d e .
Hudiburg was entirely responsible for selecting B&M as the final stage manufacturer, and
Hudiburg’s sale of the final assembly to Bewley with deficiencies in B&M’s installation of the
service body represent an “other act” which bars Hudiburg’s claim for indemnity. As the
uncontroverted Thebert Affidavit establishes, there were deficiencies in the installation of the
service body by Hudiburg’s contractor, B&M, which were a cause of the underlying Plaintiffs’
injuries. The sale by Hudiburg of the vehicle with the B&M-created installation deficiencies
9
“[Appellant] claims the remainder of the affidavit is insufficient because Smith does
not set out the standard of care, but merely states in a conclusory fashion that he is familiar with
the standard of care. Smith’s affidavit does not contain the definitions of negligence or
proximate cause . . . . Viewing the affidavit as a whole, we conclude that Smith’s discussion of
Terrill’s acts or omissions indicates his opinions were based on ‘proper legal concepts,’ “ citing
Birchfield.
-15-
represents conduct on behalf of Hudiburg for which it would be independently liable. See
Rawson-Koenig’s Brief on the Merits at 35-38.
Nothing in Chapter 82 overturns the well-established law discussed in Rawson-Koenig’s
Brief on the Merits to grant the manufacturer and seller of a defective integrated assembly
indemnity from suppliers of non-defective component parts. A seller’s conduct in causing a
defective integrated assembly (comprised of components not themselves defective) to be made
and distributed constitutes an “other act or omission . . . for which the seller is independently
liable” within the meaning of § 82.002(a). Here, this principle precludes both Hudiburg’s
statutory indemnity claim and its common law indemnity claim.
In the Court of Appeals, Hudiburg did not contest that “[t]he act of selling a defective
product does give rise to an ‘independent cause of action’ against the seller,” Brief of Appellants
in the Court of Appeals at 19, but claimed that this liability is not an “other act or omission . . .
for which the seller is independently liable” within the meaning of § 82.002(a).
Here, somewhat curiously, Hudiburg no longer advances the argument it made in the
Court of Appeals and, instead, has elected simply to ignore the argument almost entirely;
deigning only to call it “not relevant” because “there has been no finding that the service bed
was or was not defective.” Hudiburg’s Brief at 46 n.9. This misses the essential point that the
summary judgment evidence established a defect in the attachment of the service bed to the
chassis. Since that defect was created when Hudiburg caused the assembly to be made from the
component parts and by definition did not exist before the attachment was made. Hudiburg’s
sale of the defective assembly it had caused to be made is an “other act or omission . . . for
which the seller is independently liable” within the meaning of § 82.002(a). Thus, Chapter 82
-16-
does not permit Hudiburg to pass on its liability for selling the defective assembly to the
component part suppliers.10
C.
Chapter 82 does not create any comparative partial
indemnity scheme.
Hudiburg’s argument that Chapter 82 created a scheme of “partial indemnity,”
Hudiburg’s Brief at 24, has no support in the case law or the statute’s legislative history, nor does
Hudiburg support its argument with citation to either. Hudiburg’s proposed “partial indemnity”
is nothing more than an assertion that the Legislature overturned the doctrines established in
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), and T EX. C IV. P RAC. & R EM. C ODE § 33.015(d),11 sub rosa in
order to permit a seller to settle with a plaintiff and seek contribution from other parties, both
settling (General Motors) and non-settling (Rawson-Koenig).
[I]n International Proteins, we expressed no public policy that voids this assignment.
In International Proteins, we relied on our earlier decision in Beech Aircraft Corp. v.
Jinkins to hold that a joint tortfeasor cannot take an assignment of a plaintiff’s
claim as part of a settlement agreement with the plaintiff and then prosecute that
claim against a joint tortfeasor. Our rationale was that such an arrangement does
indirectly that which cannot be done directly – improperly preserve contribution
rights against non-settling joint tortfeasors.
10
Hudiburg’s focus on whether there has been a “finding” of any defect in the service
bed is also misleading because it appears to suggest that such a determination will be made at
some point during prosecution of a Chapter 82 claim for indemnity. As Hudiburg itself argues
elsewhere, “[i]n Chapter 82, the Legislature created a whole new species of manufacturer liability
in which the defectiveness of the manufacturer’s product is not an element of liability.”
Hudiburg’s Brief at 21. On its face, Chapter 82 purports to require indemnity even in the
absence of any fact-finding that Rawson-Koenig was liable for the Anderson plaintiffs’ alleged
injuries by reason of a Rawson-Koenig product defect. Thus, even if the summary judgment
record conclusively established as a matter of law that there was no defect in Rawson-Koenig’s
product, that, by itself, does not appear to be a defense under Chapter 82.
11
“No defendant has a right of contribution against any settling person.”
-17-
Relying on Jinkins, we noted that a settling defendant could settle only its
proportionate share of a common liability; it could not assert a claim for
contribution at common law or by statute, and it could not recover contribution
simply by purchasing the plaintiff’s entire cause of action. Thus, we concluded,
“it is contrary to public policy to permit a joint tortfeasor the right to purchase
a cause of action from a plaintiff to whose injury the tortfeasor contributed.”
Global Drywall Sys. v. Coronado Paint Co., 104 S.W.3d 538, 539 (Tex. 2003) (Enoch, J., joined by
O’Neill and Schneider, JJ., dissenting to the improvident grant).
Our objective when construing a statute is to determine and give effect to the
Legislature’s intent. See Liberty Mut. Ins. Co. v. Garrison Contractors, Inc., 966 S.W.2d
482, 484 (Tex. 1998); Mitchell Energy Corp. v. Ashworth, 943 S.W.2d 436, 438 (Tex.
1997). To ascertain that intent, we look first to the statute’s plain language. See
Liberty Mutual, 966 S.W.2d at 484 (citing Monsanto Co. v. Cornerstones Mun. Util.
Dist., 865 S.W.2d 937, 939 (Tex. 1993)). We must view the statute’s terms in
context, and give them full effect. See id. Under the Code Construction Act, we
may look to the statute’s legislative history in gleaning the Legislature’s intent. See
T EX. G OV’T C ODE § 311.023(3). We also bear in mind the circumstances under
which the statute was enacted, and the consequences of any particular
construction. See T EX. G OV’T C ODE § 311.023(2), (5). Further, we presume that
the Legislature acted with knowledge of the common law and court decisions. See
McBride v. Clayton, 140 Tex. 71, 166 S.W.2d 125, 128 (Tex. 1942).
Phillips v. Beaber, 995 S.W.2d 655, 658 (Tex. 1999).
All statutes are presumed to be enacted by the legislature with full knowledge of
the existing condition of the law and with reference to it. They are therefore to
be construed in connection and in harmony with the existing law, and as a part
of a general and uniform system of jurisprudence, and their meaning and effect
is to be determined in connection, not only with the common law and the
constitution, but also with reference to other states and the decisions of the court.
McBride v. Clayton, 166 S.W.2d at 128. Here, nothing in the text of Chapter 82 or its legislative
history suggests that the Legislature intended such a massive change in the existing law. “If the
Legislature had intended such a radical change . . . we must assume they would have done so
explicitly rather than by implication.” Querner v. Querner, 668 S.W.2d 801, 803 (Tex. App.–San
Antonio 1984, writ ref’d n.r.e.). See Red River National Bank v. Ferguson, 109 Tex. 287, 206 S.W.
-18-
923, 925 (1918) (“The Legislature had full authority to change the law. It was within its province
to overturn this established policy . . . . But in the execution of such a purpose it is to be
assumed that the radical change to be effected by the proposed law would constrain it to the use
of language so plain and certain as to stand in no need of construction.”). “The ease with which
such intent could have been expressed, coupled with the Legislature’s failure to do so, implies
that the radical departure advocated . . . was not intended.” Querner, 668 S.W.2d at 803.
Thus Hudiburg’s assertion that Chapter 82 creates a partial indemnity scheme must be
rejected.
-19-
P RAYER
Rawson-Koenig asks the Court to set this case for oral argument, and after argument,
sustain petitioner’s issues presented for review, reverse the judgment of the court of appeals,
affirm the trial court’s judgment, and render judgment in favor of Rawson-Koenig. In the
alternative, Rawson-Koenig asks the Court to remand to the court of appeals or the trial court
for such further proceedings as may be necessary, and to grant Petitioner Rawson-Koenig such
other and further relief to which it may be justly entitled in law or in equity.
Respectfully submitted,
____________________________________
JAMES A. M CC ORQUODALE
State Bar No. 13464900
V IAL, H AMILTON, K OCH & K NOX, L.L.P.
1700 Pacific, Suite 2800
Dallas, Texas 75201-4632
Telephone: (214) 712-4400
Facsimile:
(214) 712-4402
A TTORNEY FOR P ETITIONER
R AWSON-KOENIG, INC.
-20-
C ERTIFICATE OF S ERVICE
I certify that a copy of this Brief of Appellee Rawson-Koenig, Inc., has been served by mail on
April 5, 2004, in accordance with T EX. R. A PP. P. 9.5 on the following counsel of record:
Richard F. Werstein
Mat Gilmore
Werstein & Wilson
2121 San Jacinto Street, Suite 1130
Dallas, Texas 75201
Counsel for Respondent Hudiburg
Deron L. Wade
Kyle Dreyer
Hartline, Cacus, Dreyer & Kern, LLP
6688 N. Central Expressway, Suite 1000
Dallas, Texas 75206
Counsel for Petitioner General Motors
Charles T. Frazier, Jr.
Gregory J. Lensing
Cowles & Thompson, P.C.
901 Main Street, Suite 4000
Dallas, Texas 75202-3793
Counsel for Respondent Hudiburg
Elvin E. Smith, III
M. Ames Hutton
Strasburger & Price, L.L.P.
901 Main Street, Suite 4300
Dallas, Texas 75202
Counsel for Petitioner General Motors
A. Erin Dwyer
Figari Davenport & Graves, L.L.P.
901 Main Street, Suite 3400, LB 125
Dallas, Texas 75202-3796
Counsel for Petitioner General Motors
JAMES A. M CC ORQUODALE
-21-