Frequently Asked Questions Employer Notice of No Coverage or Termination of Coverage
Who must file the DWC Form-005?
An employer who does not have workers’ compensation insurance (non-subscriber) must file the DWC Form-005, unless the employer’s only employees are
exempt from coverage under the Texas Workers’ Compensation Act (for example, certain domestic workers, certain farm and ranch workers).
An employer who terminates workers’ compensation insurance coverage must file the DWC Form-005.
Failure to file the form when required may subject the employer to administrative penalties.
When do I file the DWC Form-005?
An employer who uses the DWC Form-005 to file a notice of no coverage must file:
· annually between February 1st and April 30th of each calendar year;
· within 30 days of the employer hiring its first employee, unless this due date falls between February 1st and April 30th and the employer submits
the notice within this time period; and
· within 10 days of receipt of a TDI-DWC request for filing a notice of no coverage.
An employer who uses the DWC Form-005 to file a notice of termination of coverage must file:
· within 10 days after notifying the insurance carrier of the termination of coverage unless the employer purchases a new policy or becomes a
certified self-insurer; and
· thereafter, the employer must file the DWC Form -005 as a non-subscriber as long as the employer remains in operation and does not have
workers’ compensation insurance coverage.
How do I file the DWC Form-005?
Employers can submit the DWC Form-005 to the TDI-DWC by:
· filing electronically on the TDI website at:
https://txcomp.tdi.state.tx.us/TXCOMPWeb/common/home.jsp;
· faxing the form to (512)804-4146; or
· mailing the form to the address listed at the top of the form (if the filing is for termination of coverage, the submission must be by certified mail).
How/when must a non-subscriber notify employees that workers’ compensation coverage is not provided?
An employer must post the Notice to Employees Concerning Workers’ Compensation in Texas in the workplace in English, Spanish and any other language
common to the employer’s employee population in the print type specified by TDI-DWC rules whenever the employer:
· elects to not have workers’ compensation insurance;
· cancels or terminates workers’ compensation insurance;
· withdraws from certified self-insurance; or
· has its workers’ compensation coverage cancelled by the insurance company.
An employer must also provide this notice to each employee:
· at the time of hire;
· when the employer elects to not have workers’ compensation insurance;
· within 15 days of notification to the insurance carrier that the employer is terminating coverage unless the employer maintains continuous
coverage under a new policy or becomes a certified self-insurer; or
· within 15 days of cancellation by the insurance company.
The required notice may be found on the TDI website at:
http://www.tdi.texas.gov/forms/dwc/notice5.pdf (English) and
http://www.tdi.texas.gov/forms/dwc/notice5s.pdf (Spanish).
DWC005 Rev. 01/13 Page 3 of 3
DWC005
Are non-covered employers required to file other forms with TDI-DWC?
Employers with five or more employees are required to report work-related injuries and diseases to the TDI-DWC. Non-subscribers and covered employers
whose employee(s) have waived workers’ compensation insurance coverage must report these work-related injury and diseases using the DWC Form-007,
Employer’s Report of Non-covered Employee’s Occupational Injury or Diseases. The form must be filed not later than the 7th day of the month following the
month in which:
· a work-related death occurred,
· an employee was absent from work for more than one day* as a result of an on-the-job injury, or
· the employer acquired knowledge of an occupational disease.
*Do not count the day of the injury or the day the injured employee returned to work when calculating the number of days absent from work.
The DWC Form-007 can be obtained from the TDI website at http://www.tdi.texas.gov/forms/dwc/dwc7injnc.pdf.
Are any fields on the DWC Form-005 optional?
No, all applicable fields must be completed each time the DWC Form-005 is filed.
Additional information can be obtained from the TDI website at:
http://www.tdi.texas.gov/wc/employer/index.html or by calling 1-800-372-7713.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas nonsubscriber defense attorneys in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
Throughout the history of workers’ compensation in the U.S., premiums for insurance policies have been determined by a set of factors related to
employer risks, primarily the mix of occupational classes they employ. Employers are assigned to work classifications according to state-sanctioned
rating bureau guidelines. In general, employers in classifications with greater injury and illness risks and loss costs have higher “manual rates.”
For example, a roofing contractor generally has a higher manual rate than a bank. Recommended or specified manual rates must be approved by
the state regulators in most cases. Additionally, those employers which qualify for experience rating and that have a history of greater injury
and illness claims and costs within the risk classes are charged even higher premiums through the application of an experience modification factor.
Those employers with fewer claims and lower loss costs benefit from lower premiums.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas workers’ comp defense attorneys in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
TEXAS ATTORNEYS AND ATTORNEY FEES IN WORKERS’ COMP LAWSUIT
Participation Of Attorneys In Workers’ Compensation Claims
TWCC v. Texas Builders’ Insurance Company, 1999 WL 394876 (Tex. App. – Austin) June 17, 1999
A Texas workers’ compensation claimant sought compensation for on-the-job injuries and was successful before the TWCC. TBIC filed suit and when Guerro failed to answer, TBIC was given a no-answer default judgment. The TWCC then denied TBIC’s claim for reimbursement from the Subsequent Injury Fund because the modification of the Appeals Panel order came as a result of a default judgment rather than a trial on the merits. The trial court determined that the TBIC was entitled to reimbursement.
The Austin Court of Appeals affirmed and discussed the language of Section 410.205(c), the applicable provision in this case. The Court also discussed the fact that the Legislature has addressed the situation in this case by enacting Section 410.257(e).
With respect to attorneys and attorney fees, the Court reiterated language from the Garcia case concerning participation of attorneys in workers’ compensation cases.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas workers’ compensation defense attorneys in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
James L. Williams, a lawyer based in Fort Worth, TX whose primary area of practice is Civil Litigation, has earned the AV Preeminent® rating from Martindale-Hubbell®
Fort Worth, TX (PR Newswire) July 24, 2015 – Martindale-Hubbell® has confirmed that attorney James L. Williams still maintains the AV Preeminent Rating, Martindale-Hubbell’s highest possible rating for both ethical standards and legal ability, even after first achieving this rating in 2015.
For more than 130 years, lawyers have relied on the Martindale-Hubbell AV Preeminent® rating while searching for their own expert attorneys. Now anyone can make use of this trusted rating by looking up a lawyer’s rating on Lawyers.com or martindale.com. The Martindale-Hubbell® AV Preeminent® rating is the highest possible rating for an attorney for both ethical standards and legal ability. This rating represents the pinnacle of professional excellence. It is achieved only after an attorney has been reviewed and recommended by their peers – members of the bar and the judiciary. Congratulations go to James L. Williams who has achieved the AV Preeminent® Rating from Martindale-Hubbell®.
James L. Williams commented on the recognition: “The Martindale-Hubbell AV Preeminent Rating is a credential highly valued and sought after in the legal world. It used to be a sort of secret among attorneys who used the rating as a first screen when they needed to hire a lawyer they did not personally know. Now, thanks to the Internet, the Rating is a great way for anyone ñ lawyers or lay people – to use to screen lawyers. I am thankful to my peers who nominated me for this distinction, and proud to have earned this, the highest possible Martindale-Hubbell rating.”
About James L. Williams:a short profile by and about the honoree:
Williams, McClure & Parmelee provides a broad range of legal services with concentration in the areas of insurance defense litigation and business representation. Our attorneys have over 90 years of combined legal experience. The firm has extensive experience in business and insurance company representation including insurance defense, construction law, transportation law, workers’ compensation defense and employment law defense.
The plaque shown here commemorates James L. Williams’s recognition.
To find out more or to contact James L. Williams of Fort Worth, TX, call 817-335-8800, or visit https://texasdefensecounsel.com.
As a result of this honor, American Registry LLC, has added James L. Williams to The Registry™ of Business and Professional Excellence. For more information, search The Registry™ at http://www.americanregistry.com.
This press release was written by American Registry, LLC, with approval by Martindale-Hubbell as well as approval and/or contributions from James L. Williams; it was distributed by PR Newswire, a subsidiary of UBM plc.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas civil litigation attorneys in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
There are many ways available on the internet to find top Fort Worth, Texas attorneys in civil law, business, law, construction law, collections law, employment law, nonsubscriber law, insurance defense law. workers’ compensation law, or other areas of practice. Some of the available sites are set forth below with links:
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas civil litigation attorneys in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
Abercrombie Resolves Religious Discrimination Case Following Supreme Court Ruling in Favor of EEOC
WASHINGTON – A federal appeals court has granted Abercrombie & Fitch’s request to dismiss its appeal of EEOC’s successful religious discrimination suit against the company, the federal agency announced today. This represents the final resolution of EEOC v. Abercrombie & Fitch, which was first filed in 2009. The case involved Abercrombie’s refusal to hire Samantha Elauf, a Muslim, because of her religious practice of wearing a hijab. Elauf filed her charge with the EEOC in 2008.
On July 27, 2015, the U.S. Tenth Circuit Court of Appeals accepted Abercrombie’s request that the court dismiss its appeal of EEOC’s case against the company, as part of Abercrombie’s decision to resolve EEOC’s claims following the U.S. Supreme Court ruling in favor of EEOC. The company has paid $25,670 in damages to Elauf and $18,983 in court costs.
“We were extremely pleased with the Supreme Court ruling in our favor, which has reinforced our longstanding efforts to enforce Title VII’s prohibition against religious discrimination,” said EEOC General Counsel David Lopez. “We are now even more pleased to have final resolution of this case and to have Ms. Elauf receive the monetary damages awarded to her by a jury in 2011.”
In its June 1, 2015 decision, the Supreme Court held that an employer may not refuse to hire an applicant if the employer was motivated by avoiding the need to accommodate a religious practice. Such behavior violates the prohibition on religious discrimination contained in Title VII of the Civil Rights Act of 1964.
The case arose when Elauf, then a teenager who wore a headscarf or hijab as part of her Muslim faith, applied for a job at an Abercrombie & Fitch store in her hometown of Tulsa, Oklahoma. She was denied hire for failing to conform to the company’s “look policy,” which Abercrombie claimed banned head coverings. Elauf then filed a charge with the EEOC, alleging religious discrimination, and the EEOC filed suit against Abercrombie, charging that the company refused to hire Elauf due to her religion, and that it failed to accommodate her religious beliefs by making an exception to its “look policy” prohibiting head coverings.
The district court granted summary judgment on liability to EEOC after holding that the evidence established that Elauf wore the hijab as part of her Muslim faith, that Abercrombie was on notice of the religious nature of her practice, and that it refused to hire her as a result. A jury subsequently awarded Elauf damages for the discrimination.
Abercrombie appealed and a divided panel of the Tenth Circuit court ruled for the company. The court of appeals held that Abercrombie was not on sufficient notice of Elauf’s religious practice because, despite correctly “assuming” that Elauf wore a headscarf because of her religion, the company did not receive from Elauf explicit, verbal notice of a conflict between the “look policy” and her religious practice. The evidence in the case included that Abercrombie never disclosed to Elauf the “no head coverings” rule in its “look policy.” The Supreme Court reversed the Tenth Circuit’s decision and ruled in favor of EEOC.
Elauf said, “I was a teenager who loved fashion and was eager to work for Abercrombie & Fitch. Observance of my faith should not have prevented me from getting a job. I am glad that I stood up for my rights, and happy that EEOC was there for me and took my complaint to the courts.”
Elauf also said that she was “grateful to the Supreme Court” for its decision and that she hopes that “other people realize that this type of discrimination is wrong and the EEOC is there to help.”
The EEOC enforces federal laws prohibiting employment discrimination. More information about the EEOC is available at www.eeoc.gov.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
Appellants, MEMC Electronic Materials and MEMC Pasadena (collectively MEMC), appeal the trial court’s order that granted a motion for partial summary judgment urged by appellees, Albemarle Corporation and its insurers, Lexington Insurance and Travelers Property Casualty Group, and that denied MEMC’s cross-motion for partial summary judgment.FN1 After Albemarle indemnified Ethyl Corporation for claims paid by Ethyl to three people who were injured in a fire at a manufacturing plant, Albemarle sought indemnification from MEMC for Albemarle’s payment to Ethyl. MEMC refused to indemnify Albemarle, contending that the Asset Purchase Agreement between MEMC and Albemarle does not require the indemnification. In a single issue on appeal that challenges the trial court’s rendition of summary judgment in favor of Albemarle, MEMC asserts three reasons that the trial court should have rendered judgment in its favor. First, MEMC contends that Albemarle’s right to obtain indemnification from MEMC under the Asset Purchase Agreement was not triggered by the claims against Ethyl because every claim for which Ethyl was held liable arose out of Ethyl’s design and operation of the plant prior to the closing date of the Asset Purchase Agreement. Second, MEMC asserts that the Ethyl Indemnity Agreement was not an obligation that it assumed under the terms of the Asset Purchase Agreement. Third, MEMC states that Albemarle’s claim for indemnity is unenforceable under Texas and Virginia law. Albemarle replies by asserting that its indemnification of Ethyl was required under Virginia law, that the indemnification provision of the Asset Purchase Agreement is not modified by any other part of the agreement, and that the indemnification’s before-and-after nature provides for the indemnification that it seeks here.FN2
FN1. The trial court granted the parties’ Joint Motion to Sever and Abate the damages portion of the case, rendering the grant of partial summary judgment a final, appealable judgment.
FN2. Both parties filed post-submission supplemental briefs with this Court. We allow this supplementation in accordance with Rule 38 .7 of the Texas Rules of Appellate Procedure. See Tex.R.App. P. 38.7 (“A brief may be amended or supplemented whenever justice requires, on whatever reasonable terms the court may prescribe.”)
Considering the entire agreement and all individual provisions in the context of the whole instrument, we conclude that the Asset Purchase Agreement does not obligate MEMC to indemnify Albemarle for its payment to Ethyl for Ethyl’s liability for injuries caused by a fire at the plant. We do not reach the issue of whether the laws of Texas and Virginia make the indemnity agreement unenforceable as matter of law. We reverse and render judgment in favor of MEMC.
Background
Ethyl designed and built a polysilicon manufacturing plant located in Pasadena, Texas. In 1994, Ethyl created Albemarle as a separate company and transferred various of its businesses, including the plant, to Albemarle’s ownership and control. The transfer was under a “Reorganization and Distribution Agreement.” Ethyl and Albemarle also entered into an “Indemnification Agreement,” under which Albemarle agreed to “indemnify, defend and hold harmless Ethyl … from and against any and all Indemnifiable Losses of the Ethyl Indemnitees arising out of or due to the failure or alleged failure of Albemarle or any of its Affiliates to pay, perform, or otherwise discharge in due course any of the Albemarle Liabilities.” The agreements between Ethyl and Albemarle are governed by the laws of the state of Virginia.
In 1995, Albemarle sold the plant to MEMC pursuant to an “Asset Purchase Agreement” that is governed by Texas law. The closing date for the agreement was July 31, 1995. Under a separate agreement, MEMC and Albemarle agreed that Albemarle would continue to operate the plant.
The Asset Purchase Agreement describes the transfer of the plant and other assets and liabilities in Sections 3.3 and 3.4. Some assets and liabilities were specifically excluded from the transfer, and only certain liabilities were assumed by MEMC. Section 3.4(b) specifies that MEMC “shall not assume any other Liabilities of Seller whatsoever” except “those Liabilities specifically assumed” in Section 3.4(a). Section 3.4(a) does not mention the agreement between Ethyl and Albemarle, nor was that agreement a contract that was assumed by MEMC in the accompanying Schedule 3.4(a)(i). The agreement further specified that MEMC did not assume any liability that results or arises from the operation of the plant prior to the closing date.
Albemarle made certain representations and warranties to MEMC. Under Section 4.16, labeled “Contracts and Commitments,” Albemarle represented that, except as set forth in Schedule 4.16, it was “not a party to” and the transferred assets “are not bound by” and the Assumed Obligations “shall not include, any written or oral, formal or informal … agreements between or among Seller and any Affiliate of Seller ….“ Schedule 4.16 did not mention the indemnity agreement between Ethyl and Albemarle.
The Asset Purchase Agreement between Albemarle and MEMC included an indemnity provision. Generally speaking, depending on whether the damages arose out of the operation of the plant “prior to the closing date” or “on or after the closing date,” MEMC would indemnify Albemarle for the damages, or Albemarle would indemnify MEMC for the damages. In Section 7.3, Albemarle agreed to indemnify MEMC from and against all damages incurred by MEMC directly or indirectly by reason of or resulting from liabilities, obligations or claims, with respect to the plant arising out of operations of the plant prior to the Closing Date. Similarly, Section 7.4 provided that MEMC would indemnify Albemarle from and against all damages asserted against, resulting to, imposed upon or incurred by Albemarle, directly or indirectly by reason of or resulting from liabilities, obligations or claims with respect to the plant arising out of the operations of the plant on or after the Closing Date.
In 1996, three Albemarle employees were injured when a fire broke out at the plant. The employees, collectively referred to as the the Damewood plaintiffs, filed a lawsuit against a number of parties, including Ethyl and MEMC.FN3 Albemarle, which carried worker’s compensation coverage, was not subject to suit. MEMC settled with the Damewood plaintiffs. Of the parties relevant to the present case, only Ethyl went to trial in the underlying litigation. Pursuant to the agreement between Ethyl and Albemarle, Albemarle defended Ethyl in the Damewood litigation. At the close of the trial, Ethyl was the only remaining defendant, and a jury rendered a verdict in excess of six-and-a-half million dollars against Ethyl. Ethyl appealed, and while the appeal was pending, it settled with the Damewood plaintiffs for approximately five million dollars. Ethyl sought indemnification from Albemarle under the terms of their agreement. Albemarle indemnified Ethyl for its losses, which is the amount that Albemarle now seeks from MEMC in this lawsuit.
FN3. Larry Damewood, Gary Woodard, and Roy Moss v. Ethyl Corporation, Cause No. 96-38521, in the 189th District Court of Harris County, Texas.
MEMC filed for summary judgment, which was denied. Albemarle then filed a motion for partial summary judgment on the issue of whether MEMC was obligated to indemnify Albemarle, and MEMC re-urged its motion as a cross-motion for partial summary judgment. The trial court ruled in Albemarle’s favor. The trial court severed the summary judgment order and abated the question of damages so the parties could bring the present appeal.
Standard of Review
When reviewing cross-motions for summary judgment, we consider both motions and render the judgment that the trial court should have entered. Coastal Liquids Transp., L.P. v. Harris County Appraisal Dist., 46 S.W.3d 880, 884 (Tex.2001). Further, in a contract action where, as here, neither party contends that a contract is ambiguous, a court should construe the contract as a matter of law, and, on appeal, the court’s ruling is subject to de novo review. See J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex.2003) (citing Coker v. Coker, 650 S.W.2d 391, 394 (Tex.1983)) (applying rule to arbitration agreement); C.M. Asfahl Agency v. Tensor, Inc., 135 S.W.3d 768, 780 (Tex.App.-Houston [1st Dist.] 2004, no pet.) (interpreting asset purchase agreement); Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 125 (Tex.App.-Houston [1st Dist.] 2002, pet. denied) (interpreting indemnity agreement); Webb v. Lawson-Avila Constr., Inc., 911 S.W.2d 457, 459-60 (Tex.App.-San Antonio 1995, writ dism’d w.o.j.).
“An indemnity agreement is a promise to safeguard or hold the indemnitee harmless against either existing and/or future loss liability.” Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 508 (Tex.1993). Indemnity provisions are to be strictly construed, pursuant to the usual principles of contract interpretation, in order to give effect to the parties’ intent as expressed in the agreement. See Ideal Lease Serv., Inc. v. Amoco Prod. Co., 662 S.W.2d 951, 953 (Tex.1984). In construing a written contract, the court’s primary concern is to ascertain the true intent of the parties as expressed in the instrument. J.M. Davidson, Inc., 128 S.W.3d at 229; see C.M. Asfahl Agency, 135 S.W.3d at 780. Accordingly, the court must examine and consider the entire writing in an effort to harmonize and give effect to all provisions so that none is rendered meaningless. J.M. Davidson, Inc., 128 S.W.3d at 229. The court may not consider any single provision, taken in isolation, as controlling, but must consider all provisions in the context of the entire instrument. Id.
Obligations Assumed by MEMC Under the Agreement
MEMC contends that, in its Asset Purchase Agreement with Albemarle, it did not assume an obligation for the indemnity agreement between Ethyl and Albermarle. MEMC contends that Sections 3.4, 4.16 and 3.3(b) exclude the agreement between Albemarle and Ethyl from the agreement between Albemarle and MEMC. Albemarle does not dispute that the agreement between Ethyl and Albemarle is never mentioned specifically in the agreement between Albemarle and MEMC. Albemarle, however, asserts that it is entitled to indemnification from MEMC under Section 7.4, the section of the agreement that pertains to indemnification.
MEMC Does Not Assume Obligation for Ethyl-Albemarle Agreement
MEMC points to Section 3.4 of the Asset Purchase Agreement to show that it did not assume any obligation for the indemnity agreement between Ethyl and Albermarle. As noted above, Albemarle does not dispute that Section 3.4 does not mention the agreement between Ethyl and Albemarle.
Section 3.4(a)
The Asset Purchase Agreement describes the transferred business and transferred assets. Section 3.4(a) specifically describes “Assumed Obligations.” These are obligations, assumed by MEMC, of liabilities that belong to Albemarle. The only obligations that are assumed by MEMC are those that are listed in Schedule 3.4(a)(i), the “Assumed Contracts[.]” FN4 The agreement between Ethyl and Albemarle was not listed in Schedule 3.4(a)(i) as a contract that was assumed by MEMC. Moreover, the agreement between Albemarle and MEMC specifically provided that MEMC would “assume no liabilities relating to the Assumed Contracts which result or arise from operation of the Transferred Business or the Transferred Assets prior to the Closing Date.” MEMC thus correctly points out that Section 3.4(a) provides that MEMC is assuming an obligation for only the liabilities of Albemarle that “are listed in Schedule 3.4(a)(i) [,]” and that the agreement between Ethyl and Albermarle is not listed in that Schedule. We agree with MEMC’s representation that under Section 3.4(a), it has not assumed liability for the agreement between Ethyl and Albemarle.
FN4. The Asset Purchase Agreement states,
Section 3.4 Assumptions by MEMC Pasadena
(a) Liabilities Being Assumed. Except as otherwise expressly provided herein and subject to the terms and conditions of the Agreement, simultaneously with the sale, transfer, conveyance and assignment to MEMC Pasadena of the Transferred Assets, MEMC Pasadena shall assume and agree and undertake in writing to pay, perform, and discharge as and when due … the following Liabilities of Seller (collectively, “Assumed Obligations” ):
(i) those Liabilities of Seller under all contracts, leases, subleases, commitments, supply contracts, agreements and orders relating primarily to the operation of the Transferred Business or the Transferred Assets, but in all such cases only to the extent the same are listed in Schedule 3.4(a)(i) attached hereto (the “Assumed Contracts” ) provided, however, that MEMC Pasadena shall assume no liabilities relating to the Assumed Contracts which result or arise from operation of the Transferred Business or the Transferred Assets prior to the Closing Date ….
Section 3.4(b)
The Asset Purchase Agreement specifies under Section 3.4(b) that liabilities of Albermarle are not being assumed by MEMC. The only exception is that MEMC is assuming liability for items listed in Schedule 3.4(a)(i), which is the schedule included within 3.4(a). Section 3.4(b) states that MEMC “shall not assume any other Liabilities” of Albemarle, unless the liability is “specifically assumed in writing” under Section 3.4(a). The agreement between Albemarle and Ethyl is not listed in Schedule 3.4(a)(i) and is therefore excluded from the obligations assumed by MEMC. MEMC thus accurately represents that under Section 3.4(b), it has not assumed liability for the agreement between Ethyl and Albemarle.FN5
FN5. Section 3.4(b) of the Asset Purchase Agreement states,
(b) Liabilities Not Being Assumed. Except for those Liabilities specifically assumed in writing by MEMC Pasadena pursuant to Section 3.4(a) hereof, MEMC Pasadena shall not assume any other Liabilities of Seller whatsoever such as (by way of example and without limitation of the scope of the preceding portion of this sentence), the following (collectively, “Excluded Obligations” ).
(i) any Liabilities of Seller (other than Assumed Obligations) of any nature whatsoever (regardless of whether the existence of such Liability (A) is or was at any time known or unknown to MEMC Pasadena, MEMC or Seller or (B) constitutes or does not constitute a breach of any representation or warranty of Seller to MEMC or MEMC Pasadena) to the extent arising or incurred or which arose or were incurred on or before the Closing, or which are based on (1) events occurring on or before the Closing, or (2) the operation of the Transferred Business on or before the Closing, notwithstanding that the date on which the claim, demand or Liability arose is after the Closing …
In summary, Sections 3.4(a) and (b) provide that MEMC is not assuming obligation for liabilities of Albemarle that are not specifically set forth in Schedule 3.4(a). The agreement between Ethyl and Albemarle is not mentioned in Schedule 3.4(a). We conclude that Section 3.4 of the agreement does not provide for MEMC to assume obligation for the indemnity agreement between Ethyl and Albermarle. Our task, however, is not merely to examine a single provision of the agreement, but to look at all the provisions in the context of the entire instrument in an effort to harmonize and give effect to all provisions so that none is rendered meaningless. See J.M. Davidson, Inc., 128 S.W.3d at 229.
Albemarle Did Not Disclose Ethyl-Albermarle Agreement
MEMC contends that the failure of Albemarle to disclose the existence of the indemnity agreement between Ethyl and Albemarle shows that there was never any obligation by MEMC for that agreement. Albemarle makes representations and warranties to MEMC in the Asset Purchase Agreement. Under Section 4.16(a)(x) of the Asset Purchase Agreement, Albemarle represents that it is not “a party to” and is “not bound by” any “agreements between or among” Albemarle and any “Affiliate.” The indemnification agreement between Ethyl and Albemarle showed that Albemarle was Ethyl’s “wholly-owned subsidiary[,]” which meets the definition of affiliate in the agreement between Albemarle and MEMC.FN6 Further, Section 4.16(xiii) includes Albemarle’s representation that it is not “a party to” and is “not bound by … any other agreement, contract, commitment, arrangement or instrument that relate[s] to or may affect the plant.” FN7 The only exception to these provisions concerns agreements listed in schedules accompanying the Asset Purchase Agreement. As noted above, the indemnity agreement between Ethyl and Albemarle was never disclosed in any schedule, nor was it ever mentioned in the Asset Purchase Agreement. We conclude that Section 4.16 called for Albemarle to disclose contract and commitments that “relate to or may affect” the plant, but Albemarle did not disclose its indemnity agreement with Ethyl. We also conclude that Albemarle failed to disclose in Section 4.16 the indemnity agreement it had with its affiliate, Ethyl. Albemarle’s failure to disclose its indemnity agreement with Ethyl suggests that MEMC was not aware of that agreement and did not obligate itself to cover any liability imposed under that agreement. We conclude that terms of Section 4.16 support MEMC’s position that it is not obligated for the indemnity agreement between Albemarle and Ethyl.
FN6. “Affiliate” is defined in the agreement as “in the case of an entity, any person who or which, directly or indirectly, through one or more intermediaries, controls or is controlled by, or is under common control with, any specified Person (the term “control” for these purposes means the ability, whether by ownership of shares or other equity interest, by contract or otherwise, to elect a majority of the directors of a corporation … or have the power to remove and then select, a majority of those Persons exercising governing authority over an entity).”
FN7. The Asset Purchase Agreement states,
Section 4.16 Contracts and Commitments
(a) Except as set forth in Schedule 4.16 or in other Schedules to this Agreement hereof, to Seller’s knowledge, Seller is not, with respect to the Transferred Business or the Transferred Assets, a party to, and the Transferred Assets and the Transferred Business are not bound by, and the Assumed Obligations shall not include, any written or oral, formal or informal …
[the section lists a number of possible contractual obligations]
(x) agreements between or among Seller and any Affiliate of Seller;
…
(xiii)any other agreement, contract, commitment, arrangement or instrument that relate to or may affect the Transferred Business, except for the Assumed Contracts.
In view of Sections 3.4 and 4.16 of the Asset Purchase Agreement, we conclude that those sections suggest that MEMC was not obligated to indemnify Albemarle for the payment that it made to Ethyl.FN8
FN8. We disagree with MEMC that Section 3.3(b) supports its position that it is not obligated to Albemarle here, because we conclude that the section is inapplicable. Section 3.3(b) states that Albemarle continues to have responsibility for certain assets, including “(v) all indemnification rights against and indemnification agreements with other parties arising out of the Transferred Business or the Transferred Assets prior to the Closing Date.” The indemnity agreement between Ethyl and Albemarle is not an asset of Albemarle’s, but is rather a liability, and that Section, therefore, does not aid in our analysis of the issues here.
The Indemnification Portion of the Agreement
Albemarle contends that the indemnification terms specified by Section 7.4 of the agreement require MEMC to indemnify Albemarle, and that under the rules of contract construction, we must favor an interpretation that affords some consequence to each part of the instrument so that none of its provisions will be rendered meaningless. Albemarle contends Section 7.4(a) requires MEMC to indemnify it for its obligation to Ethyl so long as that obligation FN9 (1) is with respect to the transferred business,FN10 and (2) arose out of the operation of the transferred business, (3) on or after the closing date.
FN9. MEMC does not challenge Albemarle’s assertion that it met the term “Liabilities, Obligations or Claims” because the lawsuit arising out of the January 1996 fire would qualify as an obligation, claim, or liability. The Asset Purchase Agreement defines Liabilities as: “any and all debts, claims, liabilities and obligations of any kind, regardless of whether disclosure thereof would be required to be made in accordance with [Generally Accepted Accounting Principles], whether accrued or fixed, absolute or contingent or determined or determinable.”
FN10. Albemarle contends that it is undisputed that the Damewood plaintiffs were injured while performing polysilicon manufacturing operations for the Pasadena business, and thus the injuries were “with respect to the Transferred Business.” The agreement between Albemarle and MEMC defines “Transferred Business” as “all of the business of Seller related to the manufacture of granular polysilicon, silane, sodium aluminum fluoride, and sodium ethyl silicate at the manufacturing facilities of Seller located in Pasadena, Texas, but specifically excluding Seller’s sodium aluminum hydride business[.]”
MEMC’s challenge on appeal focuses on the term “arising out of the operations of the Transferred Business … on or after the Closing Date.” MEMC contends that the undisputed evidence shows that Albemarle’s payment to Ethyl was due to the agreement between them, which occurred prior to the Closing Date of the Asset Purchase Agreement between Albemarle and Ethyl, and that the payment did not arise out of the operations of the plant on or after the Closing Date. In short, the tort claims by the Damewood plaintiffs are not the legal basis for Albemarle’s indemnity claim here. MEMC also asserts that the undisputed summary judgment record indicates that every claim for which Ethyl was held liable arose out of Ethyl’s design and operation of the plant prior to the closing date of the Asset Purchase Agreement.
Albemarle responds that we should rely on the specific indemnity provision in Section 7.4(a) of the Asset Purchase Agreement, despite the fact that the Asset Purchase Agreement fails to mention the indemnity agreement between Ethyl and Albemarle. Albemarle contends that “Resolution of the meaning of the term ‘arising out of’ is, perhaps, the central and controlling issue presented to this Court.” Albemarle asserts that it is asking this Court to give “arising out of” the “normal inclusive” reading that “reasonable mutual indemnitors would have accorded the phrase.”
Under Section 7.4(a) of the Asset Purchase Agreement, MEMC must indemnify Albemarle for all damages asserted against, resulting to, imposed upon or incurred by Albemarle directly or indirectly by reason of or resulting from liabilities, obligations or claims with respect to the plant arising out of the operations of the plant on or after the Closing Date.FN11 The Damewood plaintiffs were injured after the Closing Date of the Asset Purchase Agreement and there is no dispute that those injuries arose out of the operations of the plant. The damages at issue here, however, consist of the payment made by Albemarle to Ethyl pursuant to their indemnity agreement, which was an agreement in existence before the Closing Date of the Asset Purchase Agreement. We conclude that the payment made to indemnify Ethyl was not a liability, obligation or claim arising out of the operations of the plant, but rather a payment that arose out of the prior contractual relationship between Albemarle and Ethyl.
FN11. Section 7.4 of the Asset Purchase Agreement provides that MEMC will indemnify Albemarle under certain circumstances. The agreement states,
Section 7.4 MEMC’s and MEMC Pasadena’s Agreement to Indemnify. Subject to the terms and conditions of this Article 7, MEMC and MEMC Pasadena jointly and severally agree to indemnify, defend and hold harmless Seller from and against all Damages asserted against, resulting to, imposed upon or incurred by Seller, directly or indirectly (collectively, “Seller Claims” ), by reason of or resulting from:
(a) without prejudice to any obligations of Seller under the Operating Agreement or the Utilities and Services Agreement, liabilities, obligations or claims with respect to the Transferred Business or the Transferred Assets (whether absolute, accrued, contingent or otherwise) arising out of the operations of the Transferred Business or the Transferred Assets (including the Facility and the Facility Site) on or after the Closing Date;
(b) liabilities with respect to the Assumed Obligations and the Assumed Contracts;
(c) a breach of any representation, warranty or agreement of MEMC or MEMC Pasadena contained in or made pursuant to this Agreement ….
We disagree with the assertion by Albemarle that we will render Section 7.4(a) meaningless if we interpret the Asset Purchase Agreement to deny recovery here. The Asset Purchase Agreement plainly provides for MEMC to indemnify for damages arising out of the operations of the plant on or after the Closing Date. That indemnity agreement remains in place for any liabilities, obligations or claims that arise out of the operations of the plant on or after the closing date. Our holding merely denies recovery for any Albemarle liabilities, obligations or claims that arise out of unidentified, contractual obligations in existence prior to the Closing Date that were not specifically mentioned by the Asset Purchase Agreement with MEMC.FN12
FN12. In its most recent supplemental brief, Albemarle contends that the language in Section 7.4. which states that the section is “[s]ubject to the terms and conditions of this Article 7 ” requires us to read Section 7.4 independently of Articles 3 and 4. To the contrary, we note that the term “subject to the terms and conditions” appears throughout the agreement, and nowhere requires any section to be read in isolation. We also note that Section 7.1 expressly incorporates all other agreements between the parties into Article 7:
All representations, warranties and agreements made by any party to this Agreement or pursuant hereto shall be true, complete, and correct as of the date hereof and at and as of the Closing Date as though such representations, warranties, covenants and agreements were made at and as of the closing date.
Viewing the indemnity provision in context with the agreement as a whole, our conclusion is consistent with the other sections of the agreement. As we noted above, Section 3.4 of the agreement does not provide for MEMC to assume an obligation for the indemnity agreement between Albemarle and Ethyl. Additionally, Albemarle’s failure to disclose the agreement under Section 4.16, suggests that MEMC was not aware of the agreement. We further noted that Section 4.16(a)(x) suggests that MEMC is not obligated to Albemarle for its payment to Ethyl because it is a “wholly-owned subsidiary” of Ethyl, which would qualify as an “Affiliate of Seller” under the Asset Purchase Agreement.
Albemarle refers us to decisions that interpret “arising out of” language to require only a causal nexus between the action and the result. For its broad interpretation, Albemarle calls this court’s attention to a number of cases construing insurance contracts. See Mid-Century Ins. Co. of Tex. v. Lindsey, 997 S.W .2d 153, 156 (Tex.1999); Utica Nat’l Ins. Co. v. Am. Indem. Co., 141 S.W.3d 198, 203 (Tex.2004); McCarthy Bros. Co. v. Cont’l Lloyds Ins. Co., 7 S.W.3d 725, 730 (Tex.App.-Austin 1999, no pet.); Gen. Agents Ins. Co. v. Arredondo, 52. S.W.3d 762, 767 (Tex.App.-San Antonio 2001, pet. denied); Sport Supply Group, Inc. v. Columbia Cas. Co., 335 F.3d 453, 458 (5th Cir.2003). In interpreting an insurance policy, when that policy “is subject to more than one reasonable interpretation, we must adopt the construction most favorable to the insured when we resolve the uncertainty.” State Farm Fire & Cas. Co. v. Vaughan, 968 S.W.2d 931, 933 (Tex.1998). Albemarle presents no authority that requires us to interpret the terms of contractual indemnity in a commercial setting-terms which neither party contends are subject to multiple reasonable interpretations-to favor the indemnitee.
MEMC relies on an unpublished decision from this Court in Union Tex. Petroleum Energy Corp. v. Kelly Operating Co., No. 01-96-00346-CV, 1997 WL 476322 (Tex.App.-Houston [1st Dist.] Aug. 21, 1997, no pet.) (not designated for publication). In August 1990, four men were injured by a well and sued Union Texas for negligent dredging of an oil well extension canal that occurred in 1975. Id. at *1. Kelly refused to indemnify Union Texas under their May 1990 agreement that provided that Kelly would discharge all obligations arising out of the purchased property with respect to all occurrences on or after the Effective Date of the agreement. Id. This Court held that the agreement that provided for indemnity after May 1990 did not apply because the negligent conduct-the 1975 dredging of the oil well-occurred prior to the effective date of the agreement. Id. at *3. Here, similarly, the liability, obligation or claim arises from the contractual relationship between Albemarle and Ethyl, which occurred before the Closing Date of the Asset Purchase Agreement. See id.
Examining the entire writing in order to give effect to the intent of the parties as expressed in the agreement, and in order to render no clause meaningless, we conclude that the Asset Purchase Agreement does not obligate MEMC to indemnify Albemarle for the payment to Ethyl under the agreement between Albemarle and Ethyl. The trial court therefore erred by granting partial summary judgment for Albmarle, and also erred by failing to grant partial summary judgment in favor of MEMC.
Conclusion
We reverse and render judgment for MEMC.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
Section 4G.03 Operation of Emergency-Vehicle Traffic Control Signals
Standard:
01 Right-of-way for emergency vehicles at signalized locations operating in the steady (stop-and-go) mode
shall be obtained as provided in Section 4D.27.
02 As a minimum, the signal indications, sequence, and manner of operation of an emergency-vehicle
traffic control signal installed at a midblock location shall be as follows:
A. The signal indication, between emergency-vehicle actuations, shall be either green or flashing
yellow. If the flashing yellow signal indication is used instead of the green signal indication, it shall
be displayed in the normal position of the green signal indication, while the steady red and steady
yellow signal indications shall be displayed in their normal positions.
B. When an emergency-vehicle actuation occurs, a steady yellow change interval followed by a steady
red interval shall be displayed to traffic on the major street.
C. A yellow change interval is not required following the green interval for the
emergency-vehicle driveway.
03 Emergency-vehicle traffic control signals located at intersections shall either be operated in the
flashing mode between emergency-vehicle actuations (see Sections 4D.28 and 4D.30) or be full-actuated
or semi-actuated to accommodate normal vehicular and pedestrian traffic on the streets.
04 Warning beacons, if used with an emergency-vehicle traffic control signal, shall be flashed only:
A. For an appropriate time in advance of and during the steady yellow change interval for the major
street; and
B. During the steady red interval for the major street.
Guidance:
05 The duration of the steady red interval for traffic on the major street should be determined by on-site test-run
time studies, but should not exceed 1.5 times the time required for the emergency vehicle to clear the path of
conflicting vehicles.
Option:
06 An emergency-vehicle traffic control signal sequence may be initiated manually from a local control point
such as a fire station or law enforcement headquarters or from an emergency vehicle equipped for remote
operation of the signal.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
ATTORNEY FEES
Not Recoverable In A Retaliatory Discharge Case
Holland v. Wal-Mart Stores, 1999 WL 450681 (Tex.)
In this Texas workers’ compensation retaliation case, The Supreme Court of Texas stated that there is no recovery of attorney fees by a prevailing party from an opposing party unless permitted by statute or contract between the parties. Article 8307c of the prior workers’ compensation act did not specifically permit recovery of attorney fees. For that reason, the Court reversed and deleted the award of fees to Plaintiff”s attorney.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
MECHANIC’S LIEN FORECLOSURE
Mechanic’s Lien Foreclosure Procedures
GENERAL INFORMATION – A copy of the signed work order must be submitted. In addition, a determination must be made as to where the vehicle was last registered. Ownership can only be obtained through a court order if a signed work order is unavailable or no determination can be made as to where the vehicle was last registered.
1.
FORECLOSURE NOTICE – Not later than 30 days after the day on which charges accrue, the mechanic/garage must notify the owner(s) and lienholder(s) of record by certified mail, return receipt requested, of the charges due and request payment. Notice by newspaper publication may be permitted (see “Notification by Newspaper” below). Not later than 30 days after the day on which charges accrue, the mechanic/garage must submit a copy of the notice (made to the owner(s) and lienholder(s)), a copy of the signed work order, and a $25 administrative fee to the county tax assessor-collector’s office in the county in which the repairs were made. The mechanic must include in the notice the physical address where the repairs were made, the legal name of the mechanic/garage, the taxpayer or employer identification number of the mechanic/garage, and a copy of the signed work order authorizing repairs. NOTE: The notice must also be sent to the address that appears on the work order/document authorizing possession if the addresses are different from the address on the motor vehicle record.
2.
STORAGE NOTICE, IF APPLICABLE – If any amount of the charges include storage fees, a second notification is required. Refer to Storage Lien Foreclosure, Form VTR-265-S, for additional notification requirements when storage fees are included. Form VTR-265-S must be submitted if storage fees are included. Additionally, a release of lien (if applicable) is required; otherwise, foreclosure must be through a court of competent jurisdiction.
3.
PUBLIC SALE – If charges are not paid before the 31st day after the day the notice was mailed or published, the mechanic/garage may sell the vehicle at public sale without obtaining a release of lien. The proceeds shall be applied to the payment of charges, and the balance shall be paid to the person entitled to them.
4.
APPLICATION FOR TITLE – The highest bidder at public sale must apply for title, unless the vehicle is purchased by a dealer with a current General Distinguishing Number (GDN).
NOTIFICATION BY NEWSPAPER – In lieu of written notification, publication of the notice(s) in a newspaper of general circulation in the county in which the vehicle is stored may be used only if ALL of the following apply: (1) The mechanic/garage submits a written request by certified mail, return receipt requested, to the governmental entity with which the motor vehicle is registered requesting information relating to the identity of the last known registered owner(s) and any lienholder(s) of record. (2) The mechanic/garage: (a) is advised in writing by the governmental entity with which the motor vehicle is registered that the entity is unwilling or unable to provide information on the last known registered owner or any lienholder of record, or (b) does not receive a response from the governmental entity with which the motor vehicle is registered on or before the 21st day after the date the holder of the lien submits a request under (1). (3) The identity of the last known registered owner cannot be determined. (4) The registration does not contain an address for the last known registered owner. (5) The mechanic/garage cannot determine the identities and addresses of the lienholders of record. NOTE: The mechanic/garage is not required to publish notice if a correctly addressed notice is sent with sufficient postage and is returned as unclaimed, refused, the forwarding order has expired, or with a notation that the addressee is unknown or has moved without leaving a forwarding address.
Evidence Required to Transfer Ownership
a. Form 130-U – Application for Texas Title. b. Form VTR-265-M – Mechanic’s Lien Foreclosure. c. Verification of Title and Registration – If the vehicle is registered in Texas, verification of Texas title and registration is required. If registered outside of Texas, verification of title and registration from the state of record, if available. A third party verification is not acceptable. If not available, the following may be provided in lieu of title and registration verification from the state of record: (1) If a mechanic/garage sends a request for title and registration verification to the state of record (by certified mail) and is informed by letter that due to the Driver’s Privacy Protection Act restrictions the state will forward the mechanic’s notification to the owner(s) for notification purposes, then the original letter(s) from the state of record and certified receipts for each notification sent to that state will be acceptable, or (2) If notification is made by newspaper publication, proof that a correctly addressed request for the name and address of the last known registered owner(s) and lienholder(s) was sent to the state of record by certified mail with return receipt requested. Proof consists of a copy of the request and certified receipts for the notification sent to the state of record. d. Proof of Notifications Notices by Certified Mail – Proof consists of the date stamped receipts for certified mail and return receipt, including any unopened certified letter(s) returned as undeliverable, unclaimed, refused, or no forwarding address. Notice by Newspaper Publication (only if applicable) – Proof consists of the certified request (as listed above for certified mail) sent to the state of record requesting verification of owner(s) and lienholder(s) AND a legible photocopy of the newspaper publication including the name and date of the publication. Receipt from County Tax Assessor-Collector – Dated receipt showing $25 administrative fee was paid. This confirms filing with the county tax assessor-collector’s office. e. Liability Insurance – A copy of current proof of liability insurance in the applicant’s name. f. Work Order – Attach a copy of the signed work order. g. Out-of-State Vehicles – An Out-of-State Identification Certificate, Form VI-30, or a Texas Vehicle Inspection Report (acceptable) after March 1, 2015) and a certified weight certificate if the vehicle is a commercial vehicle.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
![texas[2]](https://texasdefensecounsel.com/wp-content/uploads/2014/02/texas2.gif)
