Maxim Crane Works, L.P. v. Berkel & Company Contractors, Inc.

Opinion

ACCEPTED 14-15-00614-cv FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 10/19/2015 8:49:00 AM CHRISTOPHER PRINE CLERK

No. 14-15-00614-CV FILED IN 14th COURT OF APPEALS HOUSTON, TEXAS IN THE COURT OF APPEALS 10/19/2015 8:49:00 AM FOR THE FOURTEENTH DISTRICT OF TEXAS CHRISTOPHER A. PRINE Clerk __________________________________________________________

MAXIM CRANE WORKS, L.P.,

Appellant V.

BERKEL & COMPANY CONTRACTORS, INC.

Appellee

Appeal from the 149th Judicial District Court Brazoria County, Texas Trial Court Cause No. 75576-CV __________________________________________________________

MAXIM CRANE WORKS, L.P’S RESPONSE TO BERKEL & COMPANY CONTRACTORS, INC.’S MOTION TO ABATE __________________________________________________________ Jeffrey L. Diamond State Bar No. 05802500 Ann E. Knight State Bar No. 00786026 1010 N. San Jacinto Street Houston, Texas 77002 Tel: (713) 227-6800 Fax: (713) 227-6801 jeffrey@ jdiamondandassociates.com ann@jdiamondandassociates.com TO THE HONORABLE FOURTEENTH COURT OF APPEALS:

Appellant, Maxim Crane Works, L.P., (“Maxim”) files this, its response to Appellee,

Berkel Company Contractors, Inc. (Berkel’s”) Motion to Abate, and respectfully shows the

Court as follows:

I. INTRODUCTION AND BACKGROUND FACTS

The underlying lawsuit arises out of a personal injury which was sustained by Plaintiff on

September 30, 2013, as a result of being struck by a piece of equipment at a jobsite in Houston,

Harris County, Texas. At the time of the incident, Plaintiff was employed by Skanska USA

Building Inc., the general contractor, who had retained BERKEL, a subcontractor, to provide

construction services, including the installation of Auger Cast Piles. In order to provide the

construction services at the jobsite, BERKEL rented a Link-Belt crawler crane form MAXIM

pursuant to a Bare Rental Agreement (hereinafter referred to as “Agreement”). At the time of the

incident, BERKEL was operating the crane to perform deep foundation drilling and installation

of the piles when the boom collapsed and the auger and leads broke and struck Plaintiff.

The Bare Rental Agreement between MAXIM and BERKEL contained an indemnity

clause which was subject to, and specifically referenced, Chapter 151 of the Texas Insurance

Code, commonly referred to as the Texas Anti Indemnity Statute. Maxim filed a cross-action

against Berkel on or about June 12, 2014, for breach of that Agreement and for recovery of its

defense costs, and the same was subsequently amended on December 17, 2014. (See Exhibit “A”

attached hereto.)

Maxim’s Motion for Entry of Judgment and Supplemental Motion for Entry of Judgment

on its cross-claim against BERKEL (See Exhibits “B” and “C” attached hereto), were denied in

the Amended Final Judgment, signed on July 1st 2015 (See Exhibit “D” attached hereto). On July

2 16, 2015, Maxim filed its Notice of Appeal from a Final Judgment signed on June 17, 2015, and

the Amended Judgment signed on July 1st 2015. Subsequently, on August 31, 2015, BERKEL

filed a Motion to Abate Maxim’s Appeal on the grounds that Maxim’s Appeal was not ripe.

BERKEL also filed a Motion for New Trial and Objections to the Amended Judgment which

were heard on August 31, 2015. The Motion for New Trial was denied but the objections to the

Amended Judgment were granted and, as a result of same, a Final Judgment was entered on

September 16, 2015 (See Exhibit “E” attached hereto). BERKEL filed its Notice of Appeal on

September 16, 2015.

II. MAXIM’S APPEAL IS RIPE

Maxim has filed an appeal on the denial of its cross-claim against BERKEL and is

seeking the Court’s guidance on the interpretation and application of Chapter 151, of The Texas

Insurance Code, specifically, Sections 151.102.and 151.103.

Pursuant to Section 151.102, of The Texas Insurance Code, Maxim is of the opinion that

it is entitled to a reimbursement of its attorney’s fees under the Bare Rental Agreement on a

pro-rata percentage consistent with the Jury’s Verdict. BERKEL, on the other hand, is of the

opinion that since MAXIM was assigned a percentage of fault by the jury, then it is not entitled

to reimbursement under the Bare Rental Agreement and Section 151.102, of any of its

attorney’s fees. This issue is clearly ripe for appeal, since it is a matter of interpretation of the

Statute, Chapter 15, Texas Insurance Code, and is not contingent on the outcome of

BERKEL’S Appeal, noticed on September 16, 2015.

With respect to Section 151.103 of The Texas Insurance Code, MAXIM is of the

opinion that it is entitled to full defense and indemnity from BERKEL (pursuant to the

Agreement and Section 151.103) in the event that BERKEL is successful on its Appeal. In

3 other words, if Plaintiffs’ Judgment against BERKEL is determined to be barred, based on the

exclusive remedy defense of the Texas Worker’s Compensation Scheme, MAXIM is of the

opinion that Section 151.103, provides that MAXIM is entitled to full defense and indemnity

from BERKEL. Although BERKEL will argue that this issue is contingent on the outcome of

its appeal on the merits of this case, that is not the case since the appeal issue to be decided is a

matter of interpretation of the Statute, Chapter 15, Texas Insurance Code, and how it should be

applied in this instance.

III. CONCLUSION

For the foregoing reasons, Maxim Crane Works, L.P. respectfully requests that this

Court deny BERKEL’s Motion to abate this case in its entirety.

Respectfully submitted,

J. DIAMOND AND ASSOCIATES, PLLC

/s/ Ann E. Knight Jeffrey L. Diamond State Bar No. 05802500 Ann E. Knight State Bar No. 00786026 1010 N. San Jacinto Street Houston, Texas 77002 Tel: (713) 227-6800 Fax: (713) 227-6801 jeffrey@ jdiamondandassociates.com ann@jdiamondandassociates.com

Attorneys for Defendants: Maxim Crane Works, L.P., and James Davidson

4 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the forgoing instrument was served upon all known counsel of record via facsimile, hand delivery, and/or certified mail, return receipt requested, on the 16th day of October, 2015.

Kurt B. Arnold Justin Gilbert ARNOLD & ITKIN GILBERT & FUREY 6009 Memorial Drive 222 North Velasco Street Houston, TX 77007 Angleton, TX 77515

Charles Lloyd Clay, Jr. Russell S. Post CHUCK CLAY & ASSOCIATES, LLC. BECK REDDEN LLP 3280 Peachtree Road NE, Suite 2050 1221 McKinney, Suite 4500 Atlanta, GA 30305 Houston, TX 77010

Andrew T. McKinney IV Thomas C. Wright D. Douglas Mena Jessica Z. Barger LITCHFIELD CAVO LLP Garrett A. Gibson One Riverway, Suite 1000 WRIGHT & CLOSE, LLP. Houston, TX 77056 One Riverway, Suite 2200 Houston, Texas 77056

John Dwyer Steven D. Selbe GORDON & REES, LLP GORDON & REES, LLP 633 West Fifth Street, 52nd Floor 1900 West Loop South, Suite 1000 Los Angeles, CA 90071 Houston, TX 77027

Christopher Pine Christopher Pine Clerk, First Court of Appeals Clerk, Fourteenth Court of Appeals First Court of Appeals Fourteenth Court of Appeals 301 Fannin Street, Room 208 301 Fannin Street, Room 208 Houston, Texas 77002-2066 Houston, Texas 77002-2066

/s/ Ann E. Knight Ann E. Knight