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Whiteco v. Texas Utilities Electric Co.2/28/2000
Texas Utilities Electric Company (TU Electric) sued Metrocom, Inc. d/b/a Whiteco, and Whiteco Industries, Inc. d/b/a Whiteco (Whiteco) for reimbursement of its costs incurred in defending and settling a case brought by a Whiteco employee for injuries suffered when he contacted a high-voltage power line. Whiteco appeals the summary judgment granted to TU Electric, asserting that a provision of the Texas Workers' Compensation Act shielding an employer from liability to third parties precludes TU Electric's right to indemnification. We affirm the trial court's judgment.
The facts are undisputed. While attempting to remove an advertisement from a billboard on January 11, 1993, Whiteco's employee, Edmund C. Johnston, came into contact with a high- voltage overhead power line owned and/or operated by TU Electric. The summary judgment evidence establishes that neither Johnston nor anyone else notified TU Electric, the operator of the power line, at least forty-eight hours before Johnston's work near the power line began, in violation of section 752.003 of the health and safety code. See Tex. Health & Safety Code Ann. § 752.003 (Vernon 1989). Johnston sued TU Electric, and TU Electric then sued Whiteco for indemnification. The two lawsuits were consolidated. Johnston settled his claim, and TU Electric and Whiteco entered into a separate agreement to fund the settlement. The remaining parties to the case, TU Electric and Whiteco, then filed cross motions for summary judgment, each relying on a statute to support its position. The trial court granted TU Electric's motion and denied Whiteco's motion. The trial court ordered Whiteco to pay TU Electric's portion of the settlement to Johnston and TU Electric's costs and attorney's fees. Whiteco appealed.
We apply well-known standards when reviewing a motion for summary judgment. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). When both parties move for summary judgment, each must carry its own burden of proof. Benchmark Bank v. State Farm Lloyds, 893 S.W.2d 649, 650 (Tex. App._Dallas 1994, no writ). That burden is to show an entitlement to summary judgment as a matter of law by conclusively proving all the elements of the cause of action or defense. Ordneal v. Van Horn, 678 S.W.2d 941, 941 (Tex. 1984).
The issue presented is whether section 417.004 of the Texas Worker's Compensation Act (the immunity statute) precludes TU Electric's right to indemnification under section 752.008 of the Texas Health and Safety Code (the indemnity statute), which addresses owner indemnification in case of contact with electrical power lines in violation of chapter 752 of that code (the power line statute). See Tex. Lab. Code Ann. § 417.004 (Vernon 1996). Tex. Health & Safety Code Ann. § 752.008 (Vernon 1989). For the reasons set forth below, we conclude it does not.
Section 417.004 of the labor code provides:
In an action for damages brought by an injured employee . . . against a third party liable to pay damages for the injury . . . that results in a judgment against the third party or a settlement of the third party, the employer is not liable to the third party for reimbursement or damages based on the judgment or settlement unless the employer executed, before the injury or death occurred, a written agreement with the third party to assume liability. (emphasis added)
Tex. Lab. Code Ann. § 417.004 (Vernon 1996). Under this statute, employers who subscribe to workers' compensation insurance are immune from liability to third parties the employee might sue for their injuries. See Charter Builders v. Durham, 683 S.W.2d 487, 489-91 (Tex. App._Dallas 1984, writ ref'd n.r.e.) (
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