Affirmed, in Part, Reversed and Rendered, in Part, and Memorandum Opinion 

filed May15, 2012.

In The

Fourteenth Court of Appeals

NO. 14-10-00837-CV

PASADENA REFINING SYSTEM, INC., Appellant

V.

MIKE MCCRAVEN, Appellee

NO. 14-10-00860-CV

AUSTIN INDUSTRIAL SERVICES, LP AND BRITISH AMERICAN 

INSURANCE COMPANY, Appellants

V.

PASADENA REFINING SYSTEM, INC., Appellee

On Appeal from the 151st District Court

Harris County, Texas

Trial Court Cause No. 2008-18597
2

M E M O R A N D U M O P I N I O N

Mike McCraven, who was employed by Austin Industrial Services, LP (Austin), 

sustained injuries in connection with the replacement of a cart anchor cable of a Coker 

Unit owned by Pasadena Refining System, Inc. (PRSI). McCraven sued PRSI for 

negligence, and PRSI, in turn, filed third-party claims against (1) Austin for indemnity or 

contractual contribution, and (2) British American Insurance Company (BAIC) for 

additional insured status, breach of contract, and breach of the duty of good faith and fair 

dealing. Finding negligence, the jury allocated responsibility for McCraven‘s injuries as 

follows: PRSI 75%; Austin 20%; and McCraven 5%. In the first amended final 

judgment, the trial court awarded McCraven $5,355,059.42 (95% of $5,636.904.65), plus 

pre- and post-judgment interest and costs. The trial court awarded PRSI recovery of 

contractual contribution from Austin of 20% for the liability imposed by the jury‘s 

verdict. The trial court further found as a matter of law that PRSI was entitled to 

additional insured status under the CGL policy issued to Austin by BAIC, but that such 

coverage is only excess, not primary, coverage. The trial court further found that PSRI 

had nonsuited, without prejudice, its claims for breach of contract and breach of the duty 

of good faith and fair dealing. 

Pending before this court are two appeals, which we have consolidated into one 

proceeding on our own motion. In the first appeal, PRSI appeals the first amended final 

judgment entered in favor of McCraven on his negligence claim for the injuries sustained 

on PRSI‘s premises, and the allocation of responsibility. We affirm that portion of the 

judgment awarding damages to McCraven on his negligence claim.

In the second appeal, Austin and BAIC appeal the first amended final judgment 

awarding contractual contribution and ―additional insured‖ status to PRSI. We (1) 

reverse that portion of the judgment awarding PRSI contractual contribution from Austin 

and render judgment that PRSI take nothing on its claim for contractual contribution; (2)

affirm that portion of the judgment awarding PRSI additional insured status; and (3) 
3

reform the judgment to delete the trial court‘s finding that PRSI nonsuited, without 

prejudice, its claims for breach of contract and breach of the duty of good faith and fair 

dealing, and render judgment that PRSI take nothing on those claims.

I. PRSI V. MCCRAVEN

A. Background

PRSI owns and operates a refinery, including a Coker Unit. Coke is the black 

powder that remains after crude oil has been refined and is ultimately used as another fuel 

source. After the product is removed, the 77-foot tall drum, which holds the remaining 

coke, is ―quenched‖—filled with 50,000 gallons of water to cool the coke, which is about 

900 degrees. It takes about four hours to fill the drum with water, and the coke soaks for 

an hour and a half. After the coke is cooled to 200 to 215 degrees, the hot water is 

drained from the drum, i.e., the water is released into a ―sluiceway‖—a five-foot wide 

drainage ditch. The water released into the sluiceway is black due to the coke residue. 

The coke is then ―drilled‖ and removed from the drum with front-end loaders, and 

eventually offloaded from a conveyor to barges. 

On September 5, 2007, PRSI generated a priority work order to Austin to replace 

the anchor cart cable on the second deck of the Coker Unit so that PRSI could drain the 

sluiceway on schedule. Austin sent a three-man crew, which included Tommy Ford, 

Kevin Kirkland, and Hugo Benavides, to do the job. A crane or boom truck was needed 

to lift the cable spool up to the second deck. Tony Shelman, a PRSI representative, 

recommended that the Austin crew use a Terex crane. After it was discovered that the 

Terex crane was not available, the Austin crew brought in a boom truck. 

The sluiceway covers—metal plates with holes—had been removed prior to 

September 5, 2007, so that the sluiceway could be ―hydroblasted‖ or cleaned. The 

sluiceway covers had not been put back in place, leaving the drainage ditch uncovered. 

Barricade tape had been placed around the area surrounding the open sluiceway. The 
4

Austin crew took down the barricade tape, and Benavides drove the boom truck into a 

barricaded area, straddling the open sluiceway. Whether Shelman granted the Austin 

crew permission to place the boom truck in the barricaded area was disputed at trial. 

After completing the job, the Austin crew needed to move the boom truck from 

the barricaded area, but needed PRSI‘s permission to remove the boom truck. Shelman 

initially refused the Austin crew‘s request to move the boom truck. However, Shelman 

changed his mind and, ―against [his] better judgment,‖ allowed the Austin crew to 

remove the boom truck after Kirkland claimed that he would be in ―trouble‖ if he were

not allowed to move the truck and return it timely. 

At the same time, PRSI had already started the ―drain,‖ releasing hot water into

the uncovered sluiceway. Also, the drain resulted in the overflow of the sluiceway. The 

evidence showed that PRSI had been having ongoing problems with the ability of the 

pumps to prevent water from overflowing the sluiceway during the drain. It was because

of the overflow that PRSI told everyone to leave the area.

McCraven, a heavy equipment operator, testified that his supervisor, Greg Gray,

assigned him the job of moving the boom truck, and drove him to the Coker Unit. 

McCraven testified that it was raining at that time. When Gray dropped him off, 

McCraven did not see the barricade. McCraven testified that ―[t]here was no tape there.‖

McCraven then went to the control room. McCraven encountered Shelman, who told 

him to ―go ahead and move‖ the boom truck. McCraven responded that he was waiting 

for the Austin crew. When Ford and Kirkland arrived, McCraven followed them into the 

control room. In the control room, McCraven heard Ford and Kirkland say something 

about a barricade, but he was not paying attention to their conversation and he did not 

know what they were talking about.

McCraven and Kirkland left the control room and walked toward the boom truck.

McCraven could not see the uncovered sluiceway due to the flooding of the area. Within 
5

three to four feet of the truck, McCraven fell into the sluiceway, up to his hips in the 

scalding water. McCraven was able to climb out of the ditch. At that moment, 

McCraven did not realize how badly he was injured. McCraven folded up the outriggers 

on the boom truck and drove it to the maintenance shop. When McCraven said he 

wanted to wash the black water off, he was told to take a shower. When McCraven took 

his socks off, his skin came off, and he was taken to the hospital by ambulance. 

McCraven suffered second and third degree burns. 

The evidence at trial showed that McCraven did not review the Job Hazard 

Analysis (JHA), the purpose of which was to list the specific hazards of the job. Ford 

testified that he and Kirkland should have gone over the JHA with McCraven and had 

McCraven sign it. Ford testified that he intended to tell McCraven about the barricade 

and the uncovered sluiceway, but McCraven was already heading toward the truck. 

Kirkland testified similarly that he tried to tell McCraven that he needed to sign the JHA, 

and it was his intention to warn McCraven about the barricade and the uncovered 

sluiceway, but McCraven was had started out for the truck. McCraven testified that 

Kirkland was walking a step or two behind him—close enough for them to talk. 

McCraven explained that he did not sign off on the JHA that day because he did not 

―think [he] needed one since [he] wasn‘t doing any work. [He] was just driving the truck 

out. And [he] never saw one.‖ 

McCraven sued PRSI for negligence; PRSI, in turn, brought a third-party claim 

against Austin.1 Finding negligence, the jury found PRSI was 75% responsible for 

McCraven‘s injuries, Austin 20%, and McCraven 5%. PRSI filed a motion for JNOV on 

McCraven‘s negligence action, which the trial court denied at the March 29, 2010 

hearing to enter judgment. On March 29, 2010, the trial court signed a final judgment, 

awarding McCraven $5,355,059.42 (95% of $5,636.904.65), plus pre- and post-judgment 

 

1 McCraven also sued PRSI for gross negligence; however, the trial court granted PRSI‘s motion 

for a directed verdict on gross negligence. 
6

interest and costs. PRSI filed a motion to modify and, in the alternative, motion for 

remittitur and motion for new trial, complaining of the judgment entered in favor of 

McCraven, which the trial court denied. On June 1, 2010, the trial court signed the first 

amended final judgment, but it did not change anything regarding the award of damages 

to McCraven. PRSI filed a motion to modify the first amended final judgment and, in the 

alternative, motion for remittitur and motion for new trial, complaining of the judgment 

entered in favor of McCraven, which the trial denied. 

In this appeal, PRSI challenges the legal and factual sufficiency of the evidence to 

support the jury‘s findings that PRSI (1) exercised or retained some control over the 

manner in which the work was performed, other than the right to order the work to start 

or stop or to inspect progress or receive reports;2and (2) had actual knowledge of the 

danger that injured McCraven.3 PRSI also complains that the evidence is factually 

 

2 Question No. 1 of the charge asked: 

Did Pasadena Refining System, Inc. exercise or retain some control over the

manner in which the work was performed, other than the right to order the work to start 

or stop or to inspect progress or receive reports? 

Question No. 1 instructed:

―Some Control‖ in this Question means that Pasadena Refining System, Inc. had the right

to control the means, methods, or details of Austin Industrial Services‘ work to the extent 

that Austin Industrial Services‘ [sic] was not entirely free to do the work its own way.

3 Question No. 2 in the charge asked: 

Did the negligence, if any, of those named below proximately cause the injury in 

question? 

Question No. 2 instructed, inter alia,:

With respect to the condition of the premises, Defendant PASADENA 

REFINING SYSTEM, INC., was negligent if[:] 

1. the condition posed an unreasonable risk of harm, and

2. Defendant, PASADENA REFINING SYSTEM, INC., acting by or through its 

employees, had actual knowledge of the danger, and

3. Defendant, PASADENA REFINING SYSTEM, INC., failed to exercise ordinary 

care to protect Plaintiff, MIKE MCCRAVEN, from the danger, by both failing to 
7

insufficient to support the jury‘s allocation of responsibility. McCraven brings one crosspoint, contesting the applicability of Chapter 95 of the Civil Practice and Remedies 

Code.4 

B. Standard of Review

In reviewing the legal sufficiency of the evidence, we view the evidence in the 

light most favorable to the fact finding, crediting favorable evidence if reasonable 

persons could, and disregarding contrary evidence unless reasonable persons could not. 

City of Keller v. Wilson, 168 S.W.3d 802, 822, 827 (Tex. 2005). We may not sustain a 

legal sufficiency, or ―no evidence‖ point unless the record demonstrates: (1) a complete 

absence of a vital fact; (2) the court is barred by the rules of law or of evidence from 

giving weight to the only evidence offered to prove a vital fact; (3) the evidence to prove 

a vital fact is no more than a scintilla; or (4) the evidence established conclusively the 

opposite of the vital fact. Id. at 810. 

To evaluate the factual sufficiency of the evidence to support a verdict, we 

consider all the evidence and will set aside the verdict only if the evidence supporting the 

verdict is so weak or so against the overwhelming weight of the evidence that the verdict 

is clearly wrong and unjust. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406–07 

(Tex. 1998); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam). We may not 

pass upon the witnesses‘ credibility or substitute our judgment for that of the jury, even if 

the evidence would clearly support a different result. Id. at 407. The amount of evidence 

necessary to affirm a judgment is far less than necessary to reverse a judgment. Thomas 

v. Uzoka, 290 S.W.3d 437, 452 (Tex. App.—Houston [14th Dist.] 2009, pet. denied). 

 

adequately warn Plaintiff, MIKE MCCRAVEN, of the condition and failing to 

make that condition reasonably safe.

4

See TEX. CIV. PRAC. & REM. CODE §§ 95.001–.004 (West 2011). 
8

C. Chapter 95

The trial court held that Chapter 95 is applicable to this case and submitted it to 

the jury accordingly. When Chapter 95 applies, a property owner will not be liable for 

negligence claims arising from the failure to provide a safe work place unless: 

(1) the property owner exercises or retains some control over the 

manner in which the work is performed, other than the right to order the 

work to start or stop or to inspect progress or receive reports; and

(2) the property owner had actual knowledge of the danger or condition 

resulting in the personal injury, death, or property damage and failed to 

adequately warn.

TEX. CIV. PRAC. & REM. CODE ANN. § 95.003.

The first prong of section 95.003 codifies the common-law holding of Redinger v. 

Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985), which adopted section 414 and the 

accompanying comments of the Restatement (Second) of Torts. Dyall v. Simpson 

Pasadena Paper Co., 152 S.W.3d 688, 699 (Tex. App.—Houston 2004, pet. denied) (op. 

on reh‘g en banc). The second prong requires actual knowledge, rather than merely 

constructive knowledge, by the premises owner concerning the allegedly dangerous 

condition. Id. Thus, the statutory actual knowledge standard replaces the pre-chapter 95 

standard of constructive knowledge. Phillips v. Dow Chem. Co., 186 S.W.3d 121, 133 

(Tex. App.—Houston [1st Dist.] 2005, no pet.). Control and actual knowledge are two 

independent and necessary elements to impose liability. Vanderbeek v. San Jacinto 

Methodist Hosp., 246 S.W.3d 346, 352 (Tex. App.—Houston [14th Dist.] 2008, no pet.). 

McCraven brings a cross-point that the trial court erred in holding that Chapter 95 

applies to this case.

5

 However, because we find the evidence, as addressed below, is 

 

5

Section 95.002 restricts the scope of section 95.003 and states:

This chapter applies only to a claim:
9

legally and factually sufficient to support the jury‘s findings on control and actual 

knowledge, we need not address McCraven‘s cross-point. 

D. Actual Control

In its first and second issues, PRSI contends that the evidence is legally and 

factually insufficient to support the jury‘s finding that PRSI exercised or retained some 

control over the manner in which the work was performed, other than the right to order 

the work to start or to stop or to inspect progress or receive reports. 

The right to control may be proven by either (1) a contractual right of control or 

(2) an exercise of actual control. Dow Chem. Co. v. Bright, 89 S.W.3d 602, 606 (Tex. 

2002). McCraven does not assert that PRSI retained the contractual right to control the 

details of Austin‘s work. To be liable, PRSI must have had the right to control the 

means, methods, or details of the independent contractor‘s work to the extent that the 

independent contractor was not entirely free to do the work his own way. Ellwood Tex. 

Forge Corp. v. Jones, 214 S.W.3d 693, 700 (Tex. App.—Houston [14th Dist.] 2007, pet. 

denied). The right to control work must extend to the operative details of the contractor‘s 

work. Id. Control must relate to the injury the negligence causes. Id. Actual control is 

not satisfied by evidence showing that the property owner had control over the facilities. 

Vanderbeek, 246 S.W.3d at 352. 

Although a determination of ―operative details‖ is frequently the challenging 

analysis in a premises liability case, here it is not. The details of the actual repair of the 

 

(1) against a property owner, contractor, or subcontractor for personal injury, death, 

or property damage to an owner, a contractor, or a subcontractor, or an employee of a 

contractor or subcontractor; and 

(2) that arises from the condition or use of an improvement to real property where 

the contractor or subcontractor constructs, repairs, renovates, or modifies the 

improvement.

TEX. CIV. PRAC. & REM. CODE ANN. § 95.002. McCraven argues that Chapter 95 does not apply because 

his claim does not arise from the condition or use of the second deck cart and anchor cable where Austin 

constructed, repaired, renovated, or modified the second deck cart anchor cable. See id. 
10

cable, which were not controlled by PRSI, are not at issue. Instead, the operative details

of Austin‘s work that led to the injury here were (1) use of the boom truck; (2) placement 

of the boom truck; and (3) removal of the boom truck. Viewing all of the evidence, but 

with particular attention to the PRSI and Austin witnesses directly involved in these 

tasks, we conclude the evidence is legally and factually sufficient to support the jury‘s 

finding that PRSI exercised control. 

Shelman recommended that the Austin crew use the Terex crane to reach the 

second deck were they would be working. However, the Terex crane was not available,

leaving the boom truck as the other available option. Ford testified that the Austin crew 

informed Shelman that the Terex crane was not available, and Shelman knew the Austin 

crew was going to use the boom truck. 

PRSI did not allow anyone to enter area of the sluiceway when it was barricaded. 

Shelman testified that he ―can‘t let maintenance go into a barricaded area.‖ Keith 

Overton of PRSI similarly testified: ―When it‘s barricaded off, we don‘t have any duty 

over there at all. Until the plates are put back on, we don‘t drive a front-end loader 

through there, we don‘t do anything there.‖ 

The Austin crew could not enter the barricaded area without PRSI‘s permission. 

Ford testified that he could not enter a barricaded area without permission. Ford and 

Kirkland each testified that Shelman knew Austin would have to take the boom truck into 

the barricaded area, and that Shelman gave them permission to (1) take down the 

barricade tape, and (2) place the boom truck in the barricaded area. Shelman, however,

testified that he believed that the Austin crew was going to use a Terex crane, and he did 

not think they were going to enter the barricaded area. 

Ford testified that PRSI controlled when the boom truck would be moved because 

Austin could not move it until PRSI said the crew could do so. Dudley Hughes, a PRSI 

operations supervisor, also testified that Shelman had the authority to control whether and 
11

when Austin could go in to retrieve the boom truck. Shelman testified that he initially 

told Kirkland that Austin would not be permitted to retrieve the boom truck from the 

barricaded area ―because it wasn‘t supposed to be there in the first place, you‘re just 

going to have to wait until the drain is over. . . . You shouldn‘t have brought it over 

there, no.‖ However, Shelman relented when Kirkland complained that he was going to 

be in ―trouble.‖ Shelman did not ―want to get the guy fired. So against my better 

judgment, I said, Kevin, go get the truck. . . . I gave Kevin permission to get the truck. 

Against my better judgment.‖ Shelman testified that ―the drain had started‖ when he 

gave Kirkland permission to move the boom truck, even though Shelman stated that 

―[w]e were getting people out of the area as a precaution‖ due to the area flooding. 

Ford also testified that McCraven could not have gone into the barricaded area 

without permission. McCraven testified that Shelman approached him when he was 

walking to the unit. When McCraven told Shelman that he was there to move the boom 

truck, Shelman told McCraven to ―go ahead and move it.‖ 

The jury was entitled to resolve any conflicts in the testimony regarding the 

circumstances surrounding the use and removal of the boom truck. PRSI controlled 

whether Austin would use the boom truck, where Austin could place the boom truck, and 

when Austin could remove the boom truck after the job had been completed—all of 

which led to McCraven‘s injuries when he fell into the open sluiceway filled with hot 

water. This constitutes more than control over the facilities; it is control over the 

operative details of the work resulting in McCraven‘s injuries. We conclude that the 

evidence is both legally and factually sufficient to support the jury‘s finding that PRSI 

exercised or retained some control over the manner in which the work was performed, 

other than the right to order the work to start or stop or to inspect progress or receive 

reports. Accordingly, we overrule PRSI‘s first and second issues. 
12

E. Actual Knowledge

In its third and fourth issues, PRSI claims that the evidence is neither legally nor 

factually sufficient to support the jury‘s finding that PRSI had actual knowledge of the 

danger. McCraven was also required to prove that PRSI had actual knowledge of the 

danger or condition resulting in his injury and failed to adequately warn. See TEX. CIV.

PRAC. & REM. CODE ANN. § 95.003(2). ―[K]nowledge that an activity is potentially 

dangerous is not sufficient to satisfy the second prong of Section 95.003—actual 

knowledge of the danger is required.‖ Dyall, 152 S.W.3d at 709 n.18. 

PRSI states that ―the alleged danger or condition that resulted in Plaintiff‘s 

claimed personal injuries was the hot water that was drained from one of the Coker Unit 

drums and had backed up such that it overflowed and concealed the uncovered 

sluiceway.‖ PRSI claims that its employees were not aware that the drain water had 

backed up into the sluiceway resulting in flooding obscuring the uncovered sluiceway. 

We disagree with PRSI‘s characterization of the condition at issue. The condition of the 

premises that made it dangerous to McCraven included not only the flooding condition, 

for which there was evidence of actual knowledge, but also the uncovered sluiceway, 

which was filled with hot water. 

PRSI knew the sluiceways were uncovered on the day of the incident. Shelman 

testified that the drain covers had been off the sluiceway for at least a few days prior to 

September 5, 2007. Shelman stated that ―[w]ell, when I came in that day we know [sic] 

the covers were off.‖ Shelman and Hughes both testified that the drain covers had been 

removed intentionally so the sluiceway could be cleaned. 

PRSI also knew that the water was scalding hot. Hughes testified that it was 

intended that the water released during the drain would be hot—approximately 212 

degrees. Shelman testified that when he gave Kirkland permission to move the boom 

truck, ―the drain had started,‖ with 212-degree water draining into the sluiceway.
13

Shelman down-played the seriousness of 212-degree water by stating that ―212 [degrees] 

is hot, but it‘s not like 900 [degrees].‖ However, Shelman admitted that ―212 [degrees] is 

boiling water.‖ 

PRSI also knew that water was overflowing the sluiceway and flooding the area. 

Shelman testified that, on September 5, 2007, ―[w]e knew it was going to slightly run 

over the parameter of the sluiceway . . . [b]ecause the pumps were not keeping up. We 

still had the covers off. We were working on that system.‖6 PRSI knew there was 

flooding that day because the problem with the overflowing sluiceway had not been 

fixed. Shelman explained, ―[w]e were getting people out of the area as a precaution.‖ 

Shelman minimized the hazard caused by the overflow of the sluiceway when he stated, 

―[y]ou can see‖ the open sluiceway even when the water is overflowing the sluiceway. 

However, Keith Overton of PRSI admitted that it would be difficult to see the open 

sluiceway or whether its covers are off when it floods. 

Shelman gave Kirkland permission to move the boom truck after the drain had 

started, with actual knowledge that hot water would flood the uncovered sluiceway. This 

is evidence of more than knowledge of a ―potentially dangerous‖ condition. We 

conclude that the evidence is legally and factually sufficient to support the jury‘s finding 

that PRSI had actual knowledge of the danger or condition resulting in resulting in 

McCraven‘s injury. We overrule PRSI‘s third and fourth issues. 

F. Apportionment of Responsibility

In its fifth issue, PRSI challenges the factual sufficiency of the evidence to support 

the jury‘s allocation of 75% proportionate responsibility to PRSI, 20% to Austin, and 5% 

to McCraven. PRSI argues that ―the great weight of the evidence militates in favor of a 

fault allocation that places significantly more fault on Austin and McCraven.‖ 

 

6 The PRSI investigation report of the incident concluded that ―[w]orking in flooded areas ha[d] 

become an accepted practice by refinery personnel.‖ 
14

PRSI argues that the following facts support an allocation of more than 20% 

responsibility to Austin: (1) PRSI recommended using a Terex crane to avoid being in the 

barricaded area; (2) the Austin crew decided to use the boom truck, which had to be 

located in the barricaded area in order to be able to lift the cable spool over the second 

deck; (3) the Austin crew created a potentially dangerous condition by positioning the 

truck to straddle the sluiceway, requiring the driver to navigate around the sluiceway; (4) 

the Austin crew did not note this potentially dangerous condition on its JHA, which 

Austin admitted violated Austin‘s safety policies and procedures; (5) the PRSI operator in 

the area where the drums are located did not see the boom truck or know it was in the 

barricaded area until after the drain had started; (6) the Austin foreman—who should 

have known the nature of the Coker Unit operation, including the drain—pulled the 

original heavy equipment operator who had positioned the boom truck and substituted 

McCraven, who was not familiar with the Coker Unit, to get the truck during heavy rain; 

(7) the Austin crew failed to inform McCraven of the open sluiceway, which was covered 

with steaming, hot water, and failed to go over the JHA and job safety check list with 

him, which should have been updated to reflect the flooding of the area where the boom 

truck was located over the sluiceway.

PRSI argues that McCraven demonstrated ―an almost total failure to use  ̳ordinary 

care‘—which must total more than 5% of the cause of his injuries.‖ PRSI contends that 

the following facts support a larger allocation of responsibility to McCraven: (1) 

McCraven disobeyed all safety rules; (2) McCraven did not communicate with the crew 

to learn the conditions of the job site; (3) McCraven made no effort to locate and read the 

JHA as required by Austin‘s safety policies; (4) McCraven overheard some discussion 

about a barricade, but failed to inquire about it; (5) McCraven admitted that he had been 

in the business long enough to know not to cross a barricade; (6) the Austin crew 

members stated that McCraven took off toward the truck without their being able to talk 

to him about the job conditions; (7) McCraven claimed to have seen the steam rising off 

the water, but it did not ―register‖ with him that that water was hot, as it did with his 
15

coworkers; and (8) McCraven claimed not to have seen the barricade tape, which would 

have been hard not to see from where the foreman dropped him off. 

The jury is given wide latitude in performing its sworn duty to serve as the fact 

finder in allocating responsibility. TEX. CIV. PRAC. & REM. CODE ANN. § 33.003 (West 

2008); Rosell v. Cent. W. Motor Stages, Inc., 89 S.W.3d 643, 659 (Tex. App.—Dallas 

2002, pet. denied). Even if the evidence could support a different percentage allocation

of responsibility, an appellate court may not substitute its judgment for that of the jury. 

Samco Props., Inc. v. Cheatham, 977 S.W.2d 469, 478 (Tex. App.—Houston [14th Dist.]

1998, pet. denied). 

With respect to McCraven‘s actions, the jury was entitled to believe McCraven‘s 

testimony that he did not see the barricade tape, and he did not know the sluiceways were 

uncovered. It was undisputed that McCraven did not go over the JHA, but it was because 

he did not think it was necessary. With respect to Austin‘s actions, it was undisputed that

Austin did not tell McCraven that the boom truck was straddling an uncovered sluiceway

or go over the JHA with McCraven. 

Ultimately, however, the evidence supports the jury‘s allocation of 75% 

responsibility to PRSI. Although the evidence about whether Shelman gave the Austin 

crew permission to use the boom truck in the barricaded area and remove the barricade 

tape was disputed, the jury was entitled to believe Ford‘s and Kirkland‘s testimony. It 

was, however, undisputed that PRSI knew the sluiceway covers had been removed, but 

not replaced, and hot water would drain into sluiceway. It was also undisputed that 

Shelman gave the Austin crew permission to remove the boom truck from the barricaded 

area, even though the drain had started and PRSI had evacuated personnel from the 

barricaded area due to flooding because of ongoing problems with the pumps. We 

conclude that the above-detailed evidence amply supports the jury‘s determination on 

allocation of responsibility. We overruled PRSI‘s fifth issue. 
16

G. Conclusion

Having overruled all of PRSI‘s issues in its appeal of the judgment awarding 

damages to McCraven for negligence and finding that PRSI is 75%, Austin 20%, and

McCraven 5% responsible for McCraven‘s injuries, we affirm that portion of the 

judgment.7 

II. AUSTIN & BAIC V. PRSI

A. Background

In connection with McCraven‘s personal injury suit, PRSI filed an original thirdparty petition against Austin, seeking indemnification for its own negligence pursuant to 

the November 4, 2005 ―Technical Services and Maintenance Agreement‖ between PRSI 

and Austin (PRSI/Austin agreement). Austin moved for summary judgment on the 

ground that the PRSI/Austin agreement did not provide for indemnification for PRSI‘s 

own negligence. PRSI then filed a first amended third-party petition, seeking contractual

indemnity and/or contribution. On May 1, 2009, the trial court granted, in part, and 

denied, in part, Austin‘s motion for summary judgment. The court granted Austin‘s 

motion to the extent that PRSI was seeking attorney‘s fees and costs, but denied Austin‘s 

motion to the extent that it sought summary judgment on PRSI‘s contractual contribution 

claim and held that PRSI was entitled to recover contractual contribution from Austin.

Austin filed a motion to reconsider the partial denial of summary judgment, which the 

trial court denied.8 

 

7 As an initial matter, in his appellee‘s brief, McCraven claims PRSI‘s arguments on appeal are 

contrary to its position at trial, where PRSI‘s counsel admitted PRSI‘s responsibility for McCraven‘s

injurirs to the jury during opening arguments. McCraven suggests that statements by PRSI‘s counsel 

could constitute judicial admissions, while PRSI responds that its counsel‘s statements were not judicial 

admissions. Because we find the outlined evidence legally and factually sufficient to support the jury‘s 

findings on actual control and actual knowledge, we need not address counsel‘s purported judicial 

admissions.

8

PRSI‘s proposed order denying Austin‘s motion to reconsider included the following paragraph:

IT IS FURTHER ORDERED ADJUDGED AND DECREED that Defendant and 

Third-Party Plaintiff, Pasadena Refining System, Inc. (―PRSI‖), is entitled to recover 
17

PRSI filed a second amended third-party petition, adding BAIC as third-party 

defendant. PRSI filed a third amended third-party petition, which was the live petition at 

trial, adding claims against BAIC for breach of contract and breach of the duty of good 

faith and fair dealing, and seeking a declaratory judgment that it was an additional 

insured under the BAIC commercial general liability policy (CGL policy) issued to 

Austin. 

At a hearing on February 10, 2010, before resting at trial, PRSI stated that it was 

reserving its right to address ―any issues . . . that may arise out of [its] claim against 

[BAIC] related to additional insured coverage, which may or may not become relevant 

depending on what happens.‖ After PRSI had rested, Austin and BAIC moved for 

directed verdict, asserting, inter alia, that PRSI had failed to put on any evidence on its

claims for contractual contribution, additional insured status, breach of contract, or 

breach of the duty of good faith and fair dealing during its case-in-chief and had failed to 

raise a fact issue. PRSI responded that it did not intend to pursue its claims for breach of

contract and breach of the duty of good faith and fair dealing, but it was not abandoning 

its declaratory judgment claim against BAIC on additional insured coverage. PRSI then 

nonsuited its claims for breach of contract and breach of the duty of good faith and fair 

dealing against BAIC. The trial court denied the motion for directed verdict, and allowed 

PRSI to nonsuit its claims against BAIC for breach of contract and breach of the duty of 

good faith and fair dealing. 

The jury returned a verdict finding PRSI 75% responsible for McCraven‘s injuries, 

Austin 20% responsible, and McCraven 5% responsible. On March 29, 2010, the trial 

court signed a final judgment awarding McCraven damages. The final judgment stated 

that PRSI had non-suited its remaining claims against BAIC, without prejudice, in open 

 

contractual contribution from Austin in connection with PRSI‘s third-party claims against 

Austin.

The trial court, however, struck through that paragraph when it signed the order denying the motion to 

reconsider.
18

court. The judgment, however, did not mention PRSI‘s contractual contribution claim 

against Austin or its additional insured claim against BAIC.

9

 

Austin filed a motion to modify, reform, or correct the final judgment to reflect

that PRSI take nothing on its contractual contribution claim because PRSI (1) had not 

moved for summary judgment on that claim and, therefore, the trial court granted more 

relief than was requested; and (2) had failed to prosecute that claim at trial. BAIC also

moved for the trial court to modify, correct, or reform the final judgment, arguing that (1)

nonsuit was not available to PRSI after it had had rested at trial; and (2) PRSI had not 

prosecuted its additional insured claim and could not ―defer‖ it. 

PRSI filed a motion for entry of judgment and motion to modify, correct, or 

reform the final judgment to (1) reflect that PRSI was entitled to contractual contribution

from Austin consistent with the trial court‘s prior rulings; and (2) declare that PRSI was 

entitled to coverage as an additional insured under the BAIC CGL policy. The trial court 

held a hearing on May 24, 2010. 

On June 1, 2010, the trial court signed a first amended final judgment in which the 

court clarified that it could not have granted contractual contribution in the summary 

judgment order because PRSI had not moved for summary judgment on that claim; 

therefore, the trial court considered such an award in the summary judgment order a 

―nullity.‖ The trial court, however, stated that the issue was a question of law and it still 

had plenary power to decide the contribution claim. Therefore, the trial court found that, 

as a matter of law, PRSI should be awarded recovery of contractual contribution from 

Austin in the amount of 20% of the total award, and awarded the same. 

 

9

PRSI had requested that the trial court declare that (1) the waiver of subrogation provisions in 

the PRSI/Austin agreement and/or the policy were valid and enforceable; and (2) the waiver of 

subrogation provisions in the agreement and/or policy barred BAIC‘s right to recover any portion of its 

lien from any party, including McCraven. The trial court granted PRSI‘s motion for partial summary 

judgment on those claims. The final judgment stated that summary judgment had previously been 

granted against BAIC that any right of subrogation had been contractually waived. BAIC has not 

challenged that portion of the judgment on appeal. 
19

The amended final judgment still states that PRSI non-suited, without prejudice, 

its claims for breach of contract and breach of the duty of good faith and fair dealing. 

against BAIC. The trial court found further that, as a matter of law, PRSI is entitled to 

―additional insured‖ status under the BAIC CGL policy, but that such coverage is excess, 

not primary, coverage. 

Austin filed a motion to modify, correct, or reform the first amended final 

judgment to reflect that PRSI take nothing on its contractual contribution claim against 

Austin. BAIC also filed a motion to modify, correct, or reform the first amended final 

judgment to reflect that PRSI‘s claims are dismissed with prejudice, and PRSI take 

nothing on its claims against BAIC. The trial court denied Austin‘s and BAIC‘s motions. 

As appellants in this appeal, Austin and BAIC bring six issues, complaining of the 

first amended final judgment awarding PRSI contribution from Austin and holding that 

PRSI is an additional insured under the BAIC CGL policy. 

B. Austin and BAIC’s Procedural Issues

In their first through fourth issues, appellants assert that (1) the trial court erred in 

denying their motions for directed verdict; (2) PRSI abandoned its claims for affirmative 

relief; (3) PRSI‘s mistaken belief that the denial of Austin‘s motion for summary 

judgment constituted a dispositive ruling does not excuse PRSI‘s failure to prosecute its 

contractual contribution claim; and (4) PRSI‘s purported reservation of its claim for 

additional insured status did not preserve the claim. 

Essentially, appellants contend that the trial court could not enter judgment in 

favor of PRSI on its claims for contractual contribution and additional insured status 

because PRSI did not attempt to prosecute those claims during trial, but, instead, waited 

until after the trial court had signed the March 29, 2010 final judgment to request 

judgment on those claims. We conclude the fact that the trial court had plenary power to 

sign the first amended final judgment is dispositive of appellants‘ first through fourth 

issues. 
20

A trial court retains jurisdiction over a case for a minimum of thirty days after a 

final judgment, during which the court has plenary power to change its judgment. TEX.

R. CIV. P. 329b(d); Lane Bank Equip. Co. v. Smith S. Equip. Co., 10 S.W.3d 308, 310 

(Tex. 2000). A motion to modify, correct, or reform a judgment, if filed within this 

initial thirty day period, extends the trial court‘s plenary power for up to an additional 

seventy-five days, depending on when or whether the court acts on the motions. TEX. R.

CIV. P. 329b(g); Lane Bank Equip. Co., 10 S.W.3d at 310. 

A trial court retains full control over its judgment while it has plenary power. Esty 

v. Beal Bank S.S.B., 298 S.W.3d 280, 294 (Tex. App.—Dallas 2009, no pet.); WMC 

Mortg. Corp. v. Starkey, 200 S.W.3d 749, 751 (Tex. App.—Dallas 2006, pet. denied). 

Plenary power is broadly defined as the court‘s power to dispose of any matter before it. 

WMC Mortg. Corp., 200 S.W.3d at 751. ―A trial court‘s jurisdictional power over its 

judgment is full, complete, absolute, and unqualified.‖ Shelby Operating Co. v. City of 

Waskom, 964 S.W.2d 75, 80 (Tex. App.—Texarkana 1997, pet. denied); Mesa Agro v. 

R.C. Dove & Sons, 584 S.W.2d 506, 508 (Tex. Civ. App.—El Paso 1979, writ ref‘d 

n.r.e.); see also In re Provine, 312 S.W.3d 824, 829 (Tex. App.—Houston [1st Dist.] 

2009, orig. proceeding) (―A trial court‘s power to modify its judgment is virtually 

absolute during the period of its plenary power.‖). A trial court has authority to sua 

sponte modify the judgment within the duration of its plenary power. Horseshoe Bay 

Resort Sales Co. v. Lake Lyndon B. Johnson Improvement Corp., 53 S.W.3d 799, 814 

(Tex. App.—Austin 2001, pet. denied). 

Most of appellants‘ arguments center on the consequences for failing to submit a 

fact issue to the jury. See AVCO Corp. v. Interstate Sw., Ltd., 251 S.W.3d 632, 666 (Tex. 

App.—Houston [14th Dist.] 2007, pet. denied) (―When a plaintiff fails to request an issue 

and an affirmative finding regarding the omitted issue is essential to recovery, the trial 

court must render judgment for the defendant.‖). However, the construction of an 

unambiguous contract or insurance policy is a question of law for the court. Tawes v. 
21

Barnes, 340 S.W.3d 419, 425 (Tex. 2011); State Farm Lloyds v. Page, 315 S.W.3d 525, 

527 (Tex. 2010). As addressed below, neither the PRSI/Austin agreement nor the BAIC 

CGL policy is ambiguous. Because the interpretation of the PRSI agreement and the

BAIC CGL policy were both questions of law for the trial court‘s determination, there 

was nothing to submit to the jury. PRSI, Austin, and BAIC each filed a timely motion to 

modify, correct, or reform the March 29, 2010 final judgment, extending the trial court‘s 

plenary power. Therefore, the trial court ultimately had full power to set aside, modify, 

correct, or reform the March 29, 2010 final judgment by its June 1, 2010 first amended 

final judgment. We overrule appellants‘ first through fourth issues. 

C. Contractual Indemnity

In their fifth issue, appellants assert that the trial court erred when it construed the 

PRSI/Austin agreement to provide contractual contribution. Our primary concern when 

we construe a written contract is to ascertain the parties‘ true intent as expressed in the 

contract. In re Serv. Corp. Int’l, 355 S.W.3d 655, 661 (Tex. 2011) (per curiam) (orig. 

proceeding); Epps v. Fowler, 351 S.W.3d 862, 865 (Tex. 2011). ―We must examine and 

consider the entire writing  ̳in an effort to harmonize and give effect to all the provisions 

of the contract so that none will be rendered meaningless.‘‖ Grohman v. Kahlig, 318 

S.W.3d 882, 887 (Tex. 2010) (per curiam) (quoting Valence Operating Co. v. Dorsett, 

164 S.W.3d 656, 662 (Tex. 2005)). ―We begin this analysis with the contract‘s express 

language.‖ Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 

333 (Tex. 2011). The construction of an unambiguous contract is a question of law for 

the court, which we may consider under a de novo standard of review. Tawes, 340 

S.W.3d at 425. 

The following are the material provisions of the PRSI/Austin agreement:

17.1 CONTRACTOR shall indemnify and hold harmless COMPANY, its 

divisions parent and subsidiaries, directors, officers, agents, contractor, and 

employees against any and all claims, demands or causes of action, and all 
22

costs, losses, liabilities, expenses and judgments incurred in connection 

therewith, including attorneys‘ fees and costs of court (―Liabilities‖) 

brought by any of CONTRACTOR‘S employees or representatives, or by 

any third party, based upon, in connection with, resulting from or arising 

out of CONTRACTOR‘S actions or inactions under this Agreement or 

COMPANY‘S use of the Work; provided however, that CONTRACTOR‘S 

contractual obligation of indemnification shall not extend to such 

Liabilities, to the extent arising from COMPANY‘s negligence or other 

fault or to strict or vicarious liability imposed upon COMPANY as a matter 

of law in connection with the Work, the negligence or intentional 

misconduct of any COMPANY party or of any third party.

17.2 Conversely, COMPANY will indemnify and hold harmless 

CONTRACTOR, its directors, officers, agents, contractors, and employees 

against any and all claims, demands or causes of action, and all costs, 

losses, liabilities, expenses and judgments incurred in connection therewith, 

including attorneys‘ fees and costs of court, brought by any third party to 

the extent based upon, in connection with, resulting from or arising out of 

COMPANY‘s negligence or intentional misconduct or COMPANY‘s use 

of the Work; provided, however, that COMPANY‘s contractual obligation 

of indemnification shall not extend to the negligence or other fault of 

CONTRACTOR or strict liability imposed upon CONTRACTOR as a 

matter of law in connection with the Work.

17.3 In the event that both CONTRACTOR and COMPANY are 

adjudicated negligent or otherwise at fault or strictly liable without fault 

with respect to the damage or injuries sustained by such third party 

claimant, this contractual obligation of indemnification shall continue but 

each of CONTRACTOR and COMPANY shall indemnify the other (the 

indemnitee) only for the percentage of responsibility of the damage or 

injuries adjudicated to be attributed to the indemnitor. 

As a preliminary matter, appellants contend that section 17.3 of the PRSI/Austin 

agreement—the provision relied upon by PRSI for its claim for contractual 

contribution—is not applicable to this case. Specifically, appellants argue that section

17.3, like section 17.2, applies only where the claimant is a ―third party.‖ Appellants

contrast this language against section 17.1, which applies to claims not only by a ―third 

party‖ but also to claims by either ―CONTRACTOR‘S employees or representatives.‖

Citing to section 17.1, appellants claim that the parties envisioned claims by third-party 
23

claimants to be separate and distinct from claims brought by Austin‘s employees. Thus, 

appellants argue that section 17.3 confines its applicability to third parties. In other 

words, even if section 17.3 were construed as affording PRSI a right of contractual 

contribution, it does not afford that right here where suit is brought by McCraven—one 

of ―CONTRACTOR‘S employees.‖

PRSI responds that a reasonable interpretation of the plain language of the 

PRSI/Austin agreement requires that the phrase ―such third party claimant‖ in section

17.3 be read as a reference back to ―section 17.1‘s list of who might sue PRSI or Austin, 

including  ̳any‘ of Austin‘s employees or representatives or  ̳any other third party.‘‖ 

We agree with appellants‘ interpretation. Both sections 17.2 and 17.3 refer solely 

to third parties. In contrast, section 17.1 refers to third parties and employees and 

representatives. If PRSI were correct, and the term ―third party‖ encompassed not only 

third parties, but also employees and representatives, then the words ―employees and 

representatives‖ would be rendered superfluous or without meaning. Traditional rules of 

contract construction do not permit us to disregard words when interpreting contracts. 

See Grohman, 318 S.W.3d at 887 (stating that courts must examine and consider entire 

writing in order to harmonize and give effect to all contract provisions so that none will 

be rendered meaningless). 

Moreover, PRSI does not explain why the phrase ―such third party claimant‖

found in section 17.3 more appropriately refers back to section 17.1 than to the adjacent 

section 17.2. The term ―such‖ more logically refers to the third party claims described in 

section 17.2, immediately above. To look to section 17.1 to determine the definition of 

―such third party claimant‖ results in a strained interpretation.

Finally, PRSI argues that the intent of the term ―such third party claimant‖ is 

reflected by section 17.4, which requires as a ―condition precedent to the indemnitor‘s 

contractual obligation under this Agreement that the party seeking indemnity shall 
24

provide written notice of the third party claim . . . within thirty (30) days after such third 

party claim . . . is received by the party seeking indemnity, and the indemnitor shall 

thereafter have the right to participate in the investigation, defense and resolution of such 

third party claim.‖ However, nothing in section 17.4 gives greater definition to the term 

―third party.‖ To interpret the contract as requiring notice as a condition precedent to 

indemnify solely for third-party claims is not an unreasonable interpretation. 

We hold that the PRSI/Austin agreement does not provide a contractual right to 

contribution for adjudicated liability under section 17.3 because the damage or injuries 

were sustained by ―CONTRACTOR‘S employee,‖ not by a third-party claimant. 

Therefore, we sustain appellants‘ fifth issue regarding construction of the PRSI/Austin 

agreement. 

D. Additional Insured

In their sixth issue, appellants assert that the trial court erred when it determined, 

as a matter of law, that PRSI is entitled to additional insured coverage under the BAIC 

CGL policy. The rules governing interpretation of contracts, in general, apply to 

interpreting insurance policies. Gilbert Tex. Constr., L.P. v. Underwriters at Lloyd’s 

London, 327 S.W.3d 118, 126 (Tex. 2010) (op. on reh‘g). When construing an insurance 

contract, the court‘s primary concern is give effect to the written expression of the 

parties‘ intent. Mid-Continent Cas. Co. v. Global Enercom Mgmt., Inc., 323 S.W.3d 151, 

154 (Tex. 2010) (per curiam). If an insurance contract uses unambiguous language, we 

must enforce it as written. Don’s Bldg. Supply, Inc. v. OneBeacon Ins. Co., 267 S.W.3d 

20, 23 (Tex. 2008). The fact that the parties may disagree about the policy‘s meaning 

does not create an ambiguity. Page, 315 S.W.3d at 527. Only if the policy is subject to 

two or more reasonable interpretations may it be considered ambiguous. Id. Whether a 

particular provision or the interaction among multiple provisions creates an ambiguity is 

a question of law. Id.
25

Section 15.4 of the PRSI/Austin agreement includes the following language 

regarding ―additional insured‖:

COMPANY be added as an additional insured in all such certificates, except 

insurance providing protection against worker‘s or workmen‘s compensation 

claims, to the extent of the coverage required and only in the minimum amount 

required by contract, and only with respect to liability arising out of work done by 

or on behalf of the named insured, and only to the extent COMPANY is 

indemnified by CONTRACTOR under the terms of the contract. 

The additional insured endorsement in the BAIC CGL policy describes who is an insured 

as follows:

―Any person or organization . . . for whom the named insured . . . has 

specifically agreed by written contract to procure bodily injury . . . 

insurance, provided that: 

a. This insurance applies only to the type of coverage which is 

otherwise provided by this policy and which the named insured has 

agreed to provide by contract, but in no event shall the coverage 

exceed, in type or amount, the coverage otherwise provided by this 

policy;

b. The amount of insurance is limited to the minimum amount required 

by such written contract, or to the limits of liability provided by this 

policy, whichever is lower;

c. The insurance applies only with respect to liability arising out of the 

work done by or on behalf of the named insured under such written 

contract; and

d. This insurance shall apply as primary insurance with regard to the 

additional insured for whom the named insured has agreed by 

written contract to provide insurance on a primary basis, and in such 

cases, any other insurance or self insurance available to the 

additional insured shall be excess to, and not contributory with, the 

insurance afforded by this policy to that additional insured. 

However, if the contract does not specifically require that this 

insurance shall be primary, this this insurance shall be excess over 

and not contributory with any other valid and collectible insurance 

or self insurance available to the additional insured whether such 
26

other insurance or self insurance is primary, excess, or contingent, or 

on any other basis.

In Evanston Insurance Co. v. ATOFINA Petrochemicals, Inc., the Texas Supreme

Court addressed ―whether a commercial umbrella policy that was purchased to secure the 

insured‘s indemnity obligation in a service contract with a third party also provide[d] 

direct liability coverage for the third party.‖ 256 S.W.3d 660, 662 (Tex. 2008) (op. on 

reh‘g). ATOFINA contracted with Triple S Industrial Corporation to perform 

maintenance and construction work at ATOFINA‘s Port Arthur refinery. Id. The 

contract contained an indemnity provision and a requirement that Triple S carry certain 

minimum levels of liability insurance coverage. Id. Triple S agreed to indemnify 

ATOFINA for all personal injuries and property losses sustained during the performance 

of the contract ―except to the extent that any such loss is attributable to the concurrent or 

sole negligence, misconduct, or strict liability of [ATOFINA].‖ Id. Triple S also agreed 

to carry at least $500,000 of primary comprehensive general liability (CGL) insurance, 

―[i]ncluding coverage for contractual liability insuring the indemnity agreement,‖ and an 

excess (or ―umbrella‖) liability policy ―following form for [the CGL policy]‖ of at least 

$500,000. Id. at 662–63. Triple S purchased a commercial umbrella policy from 

Evanston Insurance Company. Id. at 663. Jones, a Triple S employee working at the 

ATOFINA facility, drowned after he fell through the corroded roof of a storage tank 

filled with fuel. Id. Jones‘s survivors sued Triple S and ATOFINA for wrongful death. 

Id. ATOFINA demanded coverage from Evanston as an additional insured under the 

umbrella policy, but Evanston denied the claim, and ATOFINA brought Evanston into 

the case as a third-party defendant for a declaration of coverage. Id. 

The supreme court noted that, under the terms of the service contract, ATOFINA

was not entitled to be indemnified by Triple S if the Jones loss was occasioned in any 

way by ATOFINA‘s negligence. Id. However, ATOFINA did not seek indemnity from 

Triple S; instead, it claimed that it was entitled to indemnification from Evanston by 

virtue of its status as an additional insured on the umbrella policy Evanston issued to 
27

Triple S. Id. at 663–64. ―Instead of looking, as the court of appeals did, to the indemnity 

agreement in the service contract to determine the scope of any coverage, we base our 

decision on the terms of the umbrella insurance policy itself.‖ Id. at 664. 

The policy provided that ATOFINA was an additional insured: ―A person or 

organization for whom [Triple S] ha[s] agreed to provide insurance as is afforded by this 

policy; only with respect to operations performed by [Triple S] or on [Triple S‘s] behalf, 

or facilities owned by or used by [Triple S].‖ Id. Rejecting Evanston‘s argument that 

ATOFINA was not an additional insured because the language did not cover an 

additional insured for its own negligence, the court held that the injury ―respected‖

operations performed by Triple S because Triple S employed the worker who was 

performing the operation at the time and place of injury, and that any negligence of 

ATOFINA did not change the result. Id. at 667. Therefore, there was coverage under 

that provision. Id.

Appellants claim that Evanston is distinguishable because section 15.4 the 

PRSI/Austin agreement ―shows that the parties‘ intent for requiring additional insured 

coverage was to ensure performance of the indemnity provision.‖ In other words,

according to appellants, the additional insured provision expressly links its coverage to 

indemnification, and PRSI‘s status as an additional insured is triggered ―to the extent 

[PRSI] is indemnified by [Austin] under the terms of the contract.‖ 

Appellants rely on Shell Chemical L.P. v. Discover Property & Casualty 

Insurance Co. in support of its argument that the PRSI/Austin agreement evidenced the 

parties‘ intent that requiring additional insured coverage was to ensure performance of 

the indemnity provision. CIV. A. No. H-09-2583, 2010 WL 1338068 (S.D. Tex. Mar. 29, 

2010). In Shell Chemical, the ―Texas Truckers Policy‖ provided that Shell was an 

additional insured ―but only with respect to their legal liability for acts or omissions of 

[Mission].‖ Id. at *2. ―The Texas Supreme Court noted that, had the parties in Evanston

wanted to provide additional insured status only for the additional insured‘s vicarious 
28

liability for the policy holder‘s conduct,  ̳language clearly embodying that intention was 

available.‘‖ Id. (quoting Evanston, 256 S.W.3d at 666). In Shell Chemical, ―[t]he Texas 

Truckers Policy contained such language  ̳clearly embodying‘ the intent to provide 

coverage, and a duty to defend, to Shell as an additional insured only as to an injured 

party‘s claim that Shell is vicariously liable for Mission‘s acts or omissions.‖ Id. 

Appellants‘ reliance on Shell Chemical is misplaced. The crux of appellants‘

argument is that the PRSI/Austin agreement shows the parties‘ intent to limit additional 

insured status ―only to the extent COMPANY is indemnified by CONTRACTOR under 

the terms of the contract.‖ The policy in Shell Chemical limited the scope of additional 

insured status. See id. Pursuant to Evanston, we look to the unambiguous BAIC CGL

policy, which neither contains a limitation on additional insured coverage concerning 

indemnity under the PRSI/Austin agreement nor incorporates any such limitation. We 

contrast this absence of such a limitation with the policy‘s express incorporation of the 

PRSI/Austin agreement‘s limitations pertaining to the amount of coverage that will be 

available. 

Moreover, ―where an additional insured provision is separate from and additional 

to an indemnity provision, the scope of the insurance requirement is not limited by the 

indemnity claims.‖ Evanston, 256 S.W.3d at 664 n.5 (citing Getty Oil Co. v. Ins. Co. of 

N. Am., 845 S.W.2d 794, 804 (Tex. 1992)). The insurance requirement does not support 

the indemnity provision; it does not provide that Austin must maintain coverage for its 

indemnity obligations. Instead, the insurance requirement is a separate and independent 

obligation from the indemnity provision. Therefore, direct insured status was extended to 

PRSI as an additional insured. See id. at 670 (―[I]t is unmistakable that the agreement in 

this case to extend direct insured status to ATOFINA as an additional insured is separate 

and independent from ATOFINA‘s agreement to forego contractual indemnity for its 

own negligence.‖) (emphasis added). 
29

Relying on the PRSI/Austin agreement, appellants attempt to create an ambiguity

―as to the intentions of the parties and whether coverage is triggered.‖ However, looking 

solely to unambiguous language of the BAIC CGL policy pursuant to Evanston, we find 

no ambiguity as to the parties‘ intentions that PRSI be an additional insured. We overrule 

appellants‘ sixth issue. 

E. Breach of Contract and Breach of the Duty of Good Faith & Fair Dealing

Although not set out in a separate appellate issue, appellants complain that PRSI‘s 

purported nonsuit of its claims against BAIC for breach of contract and breach of the 

duty of good faith and fair dealing ―came too late‖ because PRSI waited until after it had 

rested to nonsuit. Parties have an absolute right to nonsuit their own claims for relief at 

any time during the litigation until they have introduced all evidence other than rebuttal 

evidence at trial. TEX. R. CIV. P. 162; Villafani v. Trejo, 251 S.W.3d 466, 468–69 (Tex. 

2008). 

PRSI concedes that the judgment should be reformed to reflect a take-nothing 

judgment on its claims for breach of contract and breach of the duty of good faith and fair 

dealing. PRSI states that while Austin‘s argument that PRSI nonsuited those claims after 

resting could serve as a ground for reformation, it asserts that the ―larger reason‖ is PRSI 

did not introduce evidence of nor submit questions to the jury on those fact-based claims; 

therefore, the proper judgment is to render judgment for BAIC on PRSI‘s claims for 

breach of contract and breach of the duty of good faith and fair dealing. See AVCO 

Corp., 251 S.W.3d at 666 (―When a plaintiff fails to request an issue and an affirmative 

finding regarding the omitted issue is essential to recovery, the trial court must render 

judgment for the defendant.‖). We conclude that the judgment should be reformed to 

delete that portion of the judgment finding that PRSI had nonsuited, without prejudice, its 

claims against BAIC for breach of contract and breach of the duty of good faith and fair 

dealing, and a take-nothing judgment should be rendered on those claims. 
30

F. Conclusion

We affirm that portion of the judgment awarding additional insured status to PRSI. 

We reverse that portion of the judgment awarding contractual contribution to PRSI, and 

render judgment that PRSI take nothing on that claim. We reform the judgment to delete 

the trial court‘s finding that PRSI nonsuited, without prejudice, its claims against BAIC

for breach of contract and breach of the duty of good faith and fair dealing, and render 

judgment that PRSI take nothing on those claims. 

III. CONCLUSION

To summarize, we (1) affirm that portion of judgment awarding damages to 

McCraven, plus pre- and post-judgment interest and costs; (2) affirm that portion of the 

judgment apportioning responsibility for McCraven as 75% to PRSI, 20% to Austin, and 

5% to McCraven; (3) affirm that portion of the judgment awarding additional insured 

status to PRSI; (4) reverse that portion of the judgment awarding contractual contribution 

to PRSI, and render judgment that PRSI take nothing on that claim; and (5) reform the 

judgment to delete the trial court‘s finding that PRSI nonsuited, without prejudice, its 

claims against BAIC for breach of contract and breach of the duty of good faith and fair 

dealing, and render judgment that PRSI take nothing on those claims. Accordingly, we 

affirm the judgment, in part, and reverse and render, in part. 

/s/ Sharon McCally

Justice

Panel consists of Justices Brown, Boyce, and McCally.