and i guess the play ran out or whatever and they decided to move that rig to texas and it was during that time in texas in this to maybe was heard on this  not so good foresight and then during discovery we learned of this drilling contractor in the journalling contract applies to the contractor the drill governs and then we find out that well maybe texas law didn't go over it because that literally when you say even we find now we're talking we're talking fourteen months later talking one year after with all i see as a fall lawsuit in january and then we got the discovery that january and shortly thereafter how do you get to the legal question whether the subcontractor on it is much less its employees a third party beneficiary of that because the contract itself talks about subcontractors and it says it requires a subcontractor so have insurance has provisions in the drawing contract that pertain to personal injuries of employees or subcontractors other contract the not just workers comp but for some some other provision general liability broad form personal injury provisions those have to be talking  and that the contract itself has multiple paragraphs that deal with how to apply this contract you agreed that under texas law he would not be a third party hearing i absolutely agree that under texas law he would not be a third party beneficiary ok but i firmly believe that under louisiana law that he would be a third party beneficia and so we've got the clash which which when the my opponent argued well that you just wasn't enough relations with louisiana to apply louisiana law well of the first well was louisiana it was it was drilling in louisiana longer than it will ever drilled in texas and as nothing to do with mr may very well if by the mud subcontractor he's employed by the most subcontractor who is also governed by this drilling contract by that by the absolute terms of that  contract it says that the sub contractors is subject to me that's the constitution of what goes on on the drilling rig you can have all kinds of other will master service agreements and all this other kind of stuff question mr maybe was performing work on that drilling rig i mean he was hired by the operator he was doing the mud work part of the component that the operator was responsible for and yet the trial judge is texas law to throw out his claims against the operator which would not have happened if i ha thirty nine years i always hope i make good faith determinations sometimes you just miss it you know twenty twenty hindsight says jordan you should a file the lawsuit in louisiana and if they didn't like it there that in their own yout you have choice of line louisiana two and is it absolutely clear that louisiana law would have applied to the drilling of the well in texas yes you can say that i don't know they use the most significant relationship to us but they also favor choice a lot provisions in contracts just like texas states and given the fact that this where that rig is now could be in the next day well i mean the law the law of drilling doesn't follow the rig does it i think that's a new standard the net rig could go to montana or you could put that rig on a barge and take it down toward subcontractors are or whoever they are booked by by the terms of that contract and so if they take it to venezuela then somebody some warriors going to look at that contract says oh we're supposed to be  anna it has a we have special premises liability provisions and unfortunately when i moved in the trial court to strike the texas law defenses and to apply louisiana law truck judge use texas law he says your clients not a third party beneficiary and i said but he is a third party beneficiary if we go by the terms of the contract and we construe that contract and interpret that contract in accordance with louisiana law which is exactly where the contract tells us to do you know we can not honor that portion of the contract and strictly go by straight up the airy principle that we follow a lawsuit in one state that's the law you apply cetera but no telling we got a straight up negligence case with the premier premises liability aspect and we just think that so if this court grieves life back in my case as i hope that they will that you will in addition there's the issue of got a rig i don't know where does it really not that important is where the witnesses stephen did stephen only been working for that company for six months he wouldn't buddy buddy with the employ so we didn't know whether those crew members that we only learned that they lived in louisiana after we f only two mentions of this direct action statute on the record at all one was in his reply to h p i do sees no evidence motion for summary judgment and the other one was actually brought up by me and an initial conference with judge hughes i basically indicated that plaintiff plaintiff's filings and things he had been saying had suggested that he appeared to be planning on filing a lawsuit against the insurers as you've seen in the briefing the corps indicated that was not going to be possible cited and it has not been i was not adequately adequately brought up before the trial court if there was any error which we argue there was not because it was not adequately preserved there was if there was any error it was harmless because in order sue a liability insured directly under the louisiana direct action statute as plaintiffs or maybe he's indicated he was wont to do the accident or injury either must have occurred in louisiana which it's clear from the record it did not or the policy has to have been written or delivered in louisiana and there's no evidence on the record that that that that occurred either the only evidence on the record that we have relating to the insurance policies was a certificate of insurance for h p i d c moving on to the next issue on the trial court also did not abuse its discretion when it denied mayberry's motion to transfer venue that issue has actually already been addressed by this court and of september twenty third two thousand and fifteen mandamus denial of the initial issue appellate level of this level the denial of the motion to transfer venue should only be overturned if it could show that the district court failed to consider the facts we've set forth those factors that the court must weigh at the trial court level when determining whether a motion to transfer venue should be granted or not i'm not going to go through them here about i think it's pretty clear that the court did address the majority of those factors particularly the convenience of the witnesses the court addressed that the operative events and the issue it was clear from the record that the court considered that the incident occurred on a texas site was a texas accident with the texas oil and gas rig the court also considered the convenience of the parties again going back to the issue of venue made the choice to spile suit in taxes he chose the venue and was ok at with it for over seventeen months of litigation before filing a motion to transfer venue the motion transfer venue was actually only filed when it became clear that chapter ninety five was going to be a huge hurdle for venue should be made with reasonable promptness i think the case was clear that seventeen months would not be reasonably prompt a transfer would clearly result in more difficulty to lay in costs for both parties at this point i'm going to  not that it does not apply he does state briefly that because the h p was not a property owner it does not apply but he does not argue at any point in the response of the m s j that maybe was a third party  beneficiary to the contract now for the first time on appeal maybury is now asserting that chapter ninety five does not apply because of this choice of well provision in the day or contract as mr mayberry did not brief the the arguments on chapter ninety five  the intention of the contracting parties to determine whether a third party can enforce the contract if there's any reasonable doubt as to whether or not the parties to a contract have intended to create a third party beneficiary with enforceable contract rights claim of the third party fails there's actually a presumption in texas it's south texas water authority vs lomas two twenty three southwest three d three or four it's a texas supreme court you just conceded there not a third party beneficiary under texas law ok i will i think under louisiana law it's clear that they also are not at the reporting beneficiary but i do want to say one thing there's another case that's it's  c twenty eighteen west law one one four six three nine four it's a march first twenty eighteen opinion of the western district court judge order it is opinion it looks at this identical contract and i think that's the issue here these types of drilling contracts are is the same whether you're looking at texas or louisiana law the term day work in the contract actually states that h p i do see shall furnish equipment of labor and perform services for specified some per day under the direction and supervision and control of b h p that provision that plaintiff has highlighted only identifies b h p and h p i do see and any other party engaged by b h p to direct drilling operations that did not does not apply to stage three stage three was not employed to direct drilling operations neighbor has presented no evidence that his employer was engaged by b h p to direct drilling operations on the property plaintiff's employer was only engaged by b h p to provide services under a separate agreement while on a day at work basis and then there's the key other than those specifically assume by h p i d c so this language actually only indicates how beach p and h p i d c the two contracting parties may hold each other liable under the terms of the day were contract there's no evidence in the record that may be or stage three were and were intended beneficiaries and again i think that analysis is the same under texas or louisiana law  nothing in the contract spells out any intent to confer a direct benefit upon the plaintiff or his employer to allow them to enforce estate work contract and i couldn't find a single case under texas or louisiana law or this had occurred where a subcontractor had been allowed to enforce the day work contract and that in qana opinion it's a little bit different in this situation and that there are the entered employee is attempting to follow breach of contract action and the court there says you are clearly not a third party beneficia in your brief it's not your honor what you need to give a piece of paper with to the court room deputy with the citation i will your honor and i apologize i found it last night i will have something as to in his reply brief he indicates that we have not adequately responded to those i'll just say i've read all of those cases and most of them the court actually finds that there are there is no third party beneficiary none of the contracts are oil and gas contracts one the louisiana case is a drug screen case they found that there was not a third party but the the person who was actually getting the drug screen was not a third party beneficiary of the of the contract between the employer and the drug screen or so that our situation is even more tangentally removed from that under louisiana law that was found to not be a third party beneficiary situation joseph vs hospital service district they are the court also found that there was no provision in find that someone was a third party beneficiary but there that's a very different situation from here is it involved up it was a subsequent purchaser agreement so it involved someone who was an environmental issue on property and someone of that it purchased the property after the initial analysis but i do think it's important to note that chapter ninety five clearly does apply plaintiff has not argued either at the district court level or on or on appeal that it does not apply so then at that point the only issue becomes was there evidence of control or was there evidence of actual knowledge i think here the evidence is clear that there was no no evidence that b h p controlled neighbors work at the time of the incident there was also no evidence that b h p had actual knowledge of the condition resulting in mr mayberry's injury and i i don't think that's necessarily been contested from an independent contractor mr mayberry has to prove that the operator controls his work b h p clearly we've established in our brief the beach he did not have contractual control that the contract specifically states that the independent contractor which would have been stage three would have been responsible for supervision and control of its own employees there's also has to be an exercise of actual control by b h p which the evidence shows and maybe testify that b h p and it's going to dock control the details of his work so i think there's also evidence there also has to be actual knowledge on order for plaintiff to prove his case there's no evidence that b h p knew about the mud near the specific stage three equipment so i think the evidence was clear and a summary judgment was properly granted for order so our initial argument in our summary judgment motion was an h p i do see it neither own nor operated the premises i think that was the first grounds that the trial court granted summary judgment on i don't think we need to go past this point because i don't i do to you don't and dug a trench a foot deep in a foot wide to catch drilling mud that they anticipated would be all over the drill site and it got so filled up with scavenger my client couldn't see it that's when he stepped down and fell and broke a song and he still needs surgery so there's genuine issues and material preclude summary judgment even under texas law but particularly under louisiana law if you would govern and interpret and apply louisiana