In this case, it is claimed the plaintiffs’ decedent, Robert Henderson, worked as an insulator for insulation contractor Win-Way Industries and claimed asbestos exposure from both his work and the work of Dow Chemical Company employees installing asbestos insulation at the Dow Freeport Texas plant. Dow moved for summary judgment in the MDL pretrial court, based on Chapter 95 of the Texas Civil Practice and Remedies Code, which covers limitations on a property owner’s liability for injury, death, or property damage due to the work of an independent contractor. The court dismissed the plaintiff’s claims that alleged exposure as a result of his work and the work of his co-workers, as independent contractors, but upheld the plaintiff’s claims against Dow related to the insulation work of its employees. Dow appealed, after a trial where a jury found it 30 percent liable for the decedent’s injury. The trial court overruled Dow’s objection that Chapter 95 precluded the submission of a general negligence questions, and the court rejected a jury instruction that would have required plaintiffs to establish Dow’s liability based on the Chapter 95 requirements.
The court of appeals agreed with Dow, reversed the trial court, and rendered a take-nothing judgment in favor of Dow. As held by the court: “’The plain meaning of the text of [section 95.002(2)] does not preclude [Chapter 95’s] applicability where a claim is based upon the negligent actions of the premises owner.’ The court of appeals reasoned that the claim arose from the condition or use of an improvement (the asbestos-insulated pipeline system) where Robert Henderson, as a contractor, constructed, repaired, renovated, or modified the improvement. Thus, Chapter 95 applied to the Hendersons’ claims against Dow, and the Hendersons had to establish Dow’s liability under the standards set forth in Chapter 95, which they failed to do” (citations omitted).
The plaintiff’s subsequent appeal was denied by the supreme court, as the plaintiff failed to challenge the court of appeals’ conclusion that Chapter 95 applied to the specific claims as pleaded, and failed to challenge the court of appeals’ conclusion that they failed to establish Dow’s liability under the chapter. In its ruling, the supreme court stated “because we agree with the court of appeals’ construction of Chapter 95, we affirm its judgment reversing the trial court’s judgment and rendering a take-nothing judgment in Dow’s favor.”
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