IN THE SUPREME COURT OF TEXAS

══════════

No. 14-0650

══════════

CENTERPOINT BUILDERS GP, LLC AND CENTERPOINT BUILDERS, LTD.,

PETITIONERS,

v.

TRUSSWAY, LTD., RESPONDENT

══════════════════════════════════════════

ON PETITION FOR REVIEW FROM THE

COURT OF APPEALS FOR THE NINTH DISTRICT OF TEXAS

══════════════════════════════════════════

JUSTICE BOYD, joined by JUSTICE JOHNSON, dissenting.

Centerpoint Builders seeks indemnity from Trussway, Ltd., under the Texas Products 

Liability Act. The sole issue in this interlocutory appeal is whether Centerpoint qualifies under the 

Act as a “seller” of Trussway’s allegedly defective roof truss. The first time this Court addressed 

the Act’s indemnity provisions it warned that, “when we stray from the plain language of a statute, 

we risk encroaching on the Legislature’s function to decide what the law should be.” Fitzgerald v. 

Advanced Spine Fixation Systems, Inc., 996 S.W.2d 864, 866 (Tex. 1999). I conclude that the 

Court strays from the statute’s plain language in this case by excluding from the definition of 

“seller” those persons whose sales of a product are “incidental” to its sales of services. Ante at ___.

The statute’s definition of “seller” says nothing about sales that are “incidental” to sales of services. 

Instead, it includes all those who are “engaged in the business of” selling the product, and nothing 

in the ordinary, common meaning of the phrase “engaged in the business” excludes business
2

activities that are “incidental” to other business activities in which the person is also engaged. 

Because the evidence here establishes that Centerpoint was “engaged in the business of” selling 

trusses, the Act’s plain language makes it a “seller” entitled to indemnity regardless of whether 

those sales were “incidental” to its other business activities. Because the Court holds otherwise, I 

respectfully dissent.

I.

Introduction

Centerpoint was the general contractor for the construction of an apartment complex on 

property owned by Glenmont Madison Beaumont, LLC. Pursuant to the contract, Centerpoint 

purchased preassembled roof trusses1directly from Trussway, Ltd., and subcontracted with 

Sandidge & Associates to install them. Sandidge, in turn, contracted with Merced Fernandez to 

assist with the installation. During the construction, Sandidge’s crew moved the trusses into place 

on top of what would become the second-floor ceiling and left them laying there flat like “fallen 

dominoes” until they could be raised and installed. While carrying a piece of sheetrock and using 

the uninstalled trusses like a “platform” above the second floor, Fernandez stepped on one of the 

trusses, the board beneath him broke, and he fell and suffered permanent, debilitating injuries.

 

1 According to the parties and the record, trusses are wooden structures typically formed by fastening multiple 

2x4 boards together using a particular design that enables them to bear the weight of a roof suspended above the 

ceiling below. Builders (or their framing subcontractors) sometimes construct trusses themselves by nailing the 

necessary boards together at the jobsite. Alternatively, the builder may purchase fully constructed trusses from a truss 

manufacturer like Trussway, and then modify them at the jobsite as necessary, as Centerpoint did here. By suspending 

the roof above the ceiling, trusses create attic space above the floor below. After the framers install the trusses, a 

drywall (or “sheetrock”) subcontractor may install drywall along the trusses’ vertical boards to finish-out the attic 

space. 
3

Fernandez sued Glenmont, Centerpoint, Sandidge, and Trussway, alleging that the truss 

that broke beneath him was unreasonably dangerous and that “the Defendants” (including 

Centerpoint) “designed, manufactured, marketed, distributed[,] and utilized” the product and 

“placed [it] into the stream of commerce.” Centerpoint and Trussway filed cross-claims against 

each other seeking indemnity from the other under the Texas Products Liability Act. TEX. CIV.

PRAC. & REM. CODE §§ 82.001–.008. Both Centerpoint and Trussway then filed cross-motions for 

summary judgment on their indemnity claims.

The trial court denied Trussway’s summary-judgment motion and granted partial summary 

judgment for Centerpoint, holding that, for purposes of indemnity under the Act, Centerpoint was 

a “seller” of the allegedly defective truss. On Trussway’s agreed interlocutory appeal, the court of 

appeals reversed, and this Court now affirms that court’s judgment. In support of its conclusion 

that Centerpoint was not a seller of the allegedly defective truss, the Court cites to the text of the 

Products Liability Act, our precedents construing that text, and other precedents that address 

whether a party is a “seller” under common-law strict-liability principles. In my view, none of 

these authorities support the Court’s conclusion.

II.

The Text

The Texas Products Liability Act requires a “manufacturer” to “indemnify and hold 

harmless a seller against loss arising out of a products liability action, except for any loss caused 

by the seller’s negligence, intentional misconduct, or other act or omission, such as negligently 

modifying or altering the product, for which the seller is independently liable.” TEX. CIV. PRAC. &

REM. CODE § 82.002(a). The parties agree that Trussway was the “manufacturer” of the allegedly 
4

defective truss, that this is a “products-liability action,” and that Centerpoint seeks indemnification 

for a “loss” arising out of this action. The only issue is whether Centerpoint was a “seller” of the 

allegedly defective truss.

Because the Products Liability Act expressly defines the term “seller,” we need not decide 

in this case whether Centerpoint was a seller of trusses under the term’s common, ordinary

meaning.2 When construing a statute, we do not rely on a term’s ordinary meaning if a “different 

meaning is supplied by legislative definition.” Tex. Lottery Comm’n v. First State Bank of 

DeQueen, 325 S.W.3d 628, 635 (Tex. 2010). If the statute defines a term, we are “bound to 

construe that term by its statutory definition only.” Tex. Dep’t of Transp. v. Needham, 82 S.W.3d 

314, 318 (Tex. 2002) (citing TEX. GOV’T CODE § 311.011(b)). The Products Liability Act expressly 

defines the term “seller” to mean “a person who is engaged in the business of distributing or 

otherwise placing, for any commercial purpose, in the stream of commerce for use or consumption 

a product or any component part thereof.” TEX. CIV. PRAC. & REM. CODE § 82.001(3). We must 

decide whether Centerpoint is a seller under this definition.

 

2 The Court suggests that the record here is “devoid of evidence” that Centerpoint was a “seller” of trusses, 

and that the evidence “indicates that Centerpoint was selling construction services rather than trusses or other building 

materials.” Ante at ___. To the extent the Court means to suggest that there is no evidence that Centerpoint was a truss 

“seller” under the common, ordinary meaning of that term, I disagree. In ordinary usage, a “seller” is simply someone 

“who sells or contracts to sell goods,” or even more generally, “a person who sells anything; the transferor of property 

in a contract of sale.” Seller, BLACK’S LAW DICTIONARY (10th ed. 2014) (hereinafter BLACK’S 10th ed.). Under their 

standard American Institute of Architects form contract, Centerpoint agreed to complete “the Work,” which included 

the obligation to “provide and pay for” all “materials” necessary to “fulfill [Centerpoint’s] obligations.” The contract 

required Centerpoint to warrant to Glenmont that all such materials were “of good quality and new” and “free from 

defects.” In exchange for the Work, Glenmont agreed to pay Centerpoint a lump sum that included amounts to “cover 

the cost to [Centerpoint] of materials,” including materials to be “incorporate[ed] in the completed construction.” The 

contract specified the amount Glenmont would pay for the floor and roof trusses. And the contract expressly provided 

that all payments for all materials would be conditioned on Glenmont becoming the legal owner of those materials. In 

short, the parties agreed that Centerpoint would purchase and provide the trusses, Glenmont would pay Centerpoint 

for the trusses, and Glenmont would then own the trusses. And that is exactly what happened.
5

It is undisputed that Centerpoint “distributed”3the truss in the stream of commerce4for use 

or consumption, and did so for a commercial purpose. The Court concludes, however, that 

Centerpoint was not a seller because it was not “engaged in the business of commercially 

distributing” trusses. Ante at ___ (emphasis added). Because the Act does not define “engaged in 

the business of,” the Court seeks the common ordinary meaning of that phrase in Black’s 

Dictionary, which defines

 “engaged” as “to employ or involve oneself,” “to take part in,” or “to 

embark on,” ante at ___ (quoting Engage, BLACK’S 10th ed.);

 “business” as a “commercial enterprise carried on for profit; a particular 

occupation or employment habitually engaged in for livelihood or gain,” 

ante at ___ (quoting Business, BLACK’S 10th ed.); and

 “doing business” as “the carrying out of a series of similar acts for the 

purpose of realizing a pecuniary benefit,” ante at ___ (quoting Doing

Business, BLACK’S 10th ed.).

Relying on these dictionary definitions to inform the meaning of the “entire phrase . . . 

‘engaged in the business of,’” the Court holds that “one is not ‘engaged in the business of’ selling 

a product if providing that product is incidental to selling services.” Ante at ___ (emphasis added). 

Applying that holding, the Court concludes that Centerpoint’s sales of trusses were “incidental to 

its contract to provide the services necessary to construct a building,” ante at ___ (quoting Barham 

v. Turner Constr. Co. of Tex., 803 S.W.2d 731, 738 (Tex. App.—Dallas 1990, writ denied)),

 

3 To “distribute” means to “deliver,” to “spread out; to disperse.” Distribute, BLACK’S 10th ed.

4 See Fresh Coat, Inc. v. K–2, Inc., 318 S.W.3d 893, 899 (Tex. 2010) (rejecting argument that contractor “did 

not place [stucco product] into the stream of commerce since [the product] was applied to walls that were part of 

newly constructed homes”).
6

because “Centerpoint did not set prices on the materials to achieve a gain or profit,” ante at ___, 

and “Centerpoint used innumerable building materials” in addition to the trusses, ante at ___. The 

Court then goes on to hold that “a general contractor who is neither a retailer nor a wholesale 

distributor of any particular product is not necessarily a ‘seller’ of every material incorporated into 

its construction projects . . . .” Ante at ___. I disagree, because nothing in the statute’s definition

of “seller” or in the common meaning of “engaged in the business of” supports the Court’s two 

holdings or the evidentiary factors on which it relies. 

A. First Holding: “Incidental” Sales

The Court’s first holding is that “one is not ‘engaged in the business of’ selling a product 

if providing that product is incidental to selling services.” Ante at ___ (emphasis added). Although 

the Court does not explain what it means by “incidental,” that term commonly refers to something 

“[s]ubordinate to something of greater importance” or having “a minor role” within a greater 

enterprise. Incidental, BLACK’S 10th ed. Presumably, under the Court’s incidental-sales test, an 

entity is not “engaged in the business of” selling a product if that business activity is “subordinate” 

in importance to, or plays only a “minor role” compared with, other business activities in which 

the entity is also engaged. Nothing in the common meaning of “engaged in the business” or in the 

statutory definition of “seller” supports this test.

An entity can of course be simultaneously engaged in more than one business activity,5and 

one or more of those activities will likely be more important or primary to the entity or to a 

 

5 See, e.g., Gregory v. Roedenbeck, 174 S.W.2d 585, 587 (Tex. 1943) (noting that persons engaged in the oiland-gas-well-supply business may also be “engaged in other business”); Hous. Life Ins. Co. v. Dabbs, 125 S.W.2d 

1041, 1043–44 (Tex. 1939) (noting that a corporation can “engage[] in a business foreign to its charter powers”).
7

particular transaction than another. Similarly, the entity may engage more regularly or 

continuously in one or more business activities than another. But that one business activity is less 

important or primary or that the entity engages in it less regularly or frequently does not mean it 

is not “engaged in the business of” that activity. Under the common, ordinary meaning, the entity 

is still “engaged in” (i.e., “employed,” or “involved” or “taking part” in, see Engage, BLACK’S 

10th ed.) that “business” (i.e., the “commercial enterprise carried on for profit” or “gain,” Business, 

BLACK’S 10th ed.), as those terms are commonly understood.

Numerous Texas statutes confirm that the common meaning of “engaged in the business

of” does not exclude activities that are “incidental” to a business’s other activities.6 Many statutes, 

for example, expressly apply only to persons that are “primarily” or “principally” engaged in the

business of a particular activity.

7 And many other statutes expressly apply only to those who

“continuously” or “regularly” engage in a particular business activity or that conduct at least a 

certain minimum amount or volume of the business.8In fact, some statutes expressly apply only 

 

6 This Court regularly and properly relies on “the use and definitions of [a] word in other statutes” to 

determine the word’s common, ordinary meaning. Jaster v. Comet II Const., Inc., 438 S.W.3d 556, 563 (Tex. 2014) 

(plurality op.).

7 See, e.g., TEX. CIV. PRAC. & REM. CODE § 27.010(b) (providing that the Texas Citizens Participation Act 

does not apply to certain legal actions against “a person primarily engaged in the business of selling or leasing goods 

or services” (emphasis added)); TEX. GOV’T. CODE § 27.060(c)(2) (requiring that Supreme Court adopt justice-court 

rules for “specific procedures for an action by a person primarily engaged in the business of lending money at interest” 

(emphasis added)); TEX. OCC. CODE § 1052.003(a)(12) (authorizing a person who “is primarily engaged in the 

business of park and recreation planning” to engage in the practice of landscape architecture (emphasis added)); TEX.

TRANSP. CODE § 396.001(4) (defining “Recycling business” as a “business primarily engaged” in specific activities 

(emphasis added)); TEX. TAX CODE §§ 171.1011(g-8), (g-10), (g-11), (w-1) (imposing unique tax obligations on 

taxable entities that are “primarily engaged in” particular businesses (emphasis added)).

8 See, e.g., TEX. ELEC. CODE § 253.103(a)(1) (prohibiting a corporation from making a loan to a candidate, 

officeholder, or political committee for campaign or officeholder purposes unless “the corporation has been legally 

and continuously engaged in the business of lending money for at least one year before the loan is made” (emphases 

added)); TEX. FIN. CODE § 308.001 (applying chapter only to persons “regularly engaged in the business of extending 
8

to entities that are both primarily or principally and regularly engaged in a particular business

activity.

9

As the Court itself explains, we must presume that “the Legislature deliberately and 

purposefully selects words and phrases it enacts, as well as deliberately and purposefully omits 

words and phrases it does not enact.” Ante at ___ (quoting Tex. Mut. Ins. Co. v. Ruttiger, 381 

S.W.3d 430, 452 (Tex. 2012)). The fact that many statutes include words that limit the scope of 

the phrase “engaged in the business of” indicates that statutes that omit those words are not so 

limited. If, as the Court asserts, the common meaning of “engaged in the business of” does not 

include business activities that are only “incidental” to the business or transaction, there would be 

no need to limit statutes to those who are “primarily” or “principally” engaged in a particular 

business, or who engage in the business “regularly” or “continuously.” Under the Court’s 

construction, a statute that applies to entities that are “engaged in the business of” a particular 

activity already excludes those that only “incidentally” engage in that activity. If that were true, 

there would be no need for statutes to modify the phrase “engaged in the business” with terms like 

“primarily,” “principally,” or “regularly,” and those terms would be meaningless and superfluous 

in all the statutes that use them. Of course, we must not construe statutes in ways that render 

 

credit . . . primarily for personal, family, or household use” (emphasis added)); TEX. OCCUP. CODE § 2352.001(3) 

(defining “Dealer” as “a person engaged in the business of buying, selling, . . . or exchanging at least five vessels, 

motorboats, or boat motors during a calendar year”); TEX. PARKS & WILD. CODE § 31.003(7) (defining “Dealer” as “a 

person engaged in the business of buying, selling, . . . or exchanging at least five vessels, motorboats, or outboard 

motors during a calendar year”).

9 See, e.g., TEX. FIN. CODE § 345.001(1)(C) (defining “credit card issuer” to exclude a person who is 

“regularly and principally engaged in the business of lending money for personal, family, or household purposes” 

(emphases added)); TEX. WATER CODE § 26.342(7)(E) (defining “lender” to include entities that are “regularly

engaged in the business of extending credit and if extending credit represents the majority of the entity’s total business 

activity” (emphases added)).
9

statutory terms “meaningless or superfluous.” Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 

271 S.W.3d 238, 256 (Tex. 2008).

I believe we must acknowledge and respect the fact that the Products Liability Act’s 

definition of “seller” includes all those “engaged in the business” of selling a product, and does 

not employ limiting words like “primarily” or “regularly” or, as the Court holds today, “nonincidentally.” The Products Liability Act thus applies to all persons “engaged in the business” of 

selling a product regardless of whether their engagement in that business is a primary, regular, or 

merely incidental activity. By construing “engaged in the business” to exclude those whose 

relevant activities are incidental to other business activities, the Court construes the Act’s 

definition of “seller” as if it included terms like “primary,” “principally,” and “regularly” when it 

does not. Of course, we must not do this when construing a statute either. City of Rockwall v. 

Hughes, 246 S.W.3d 621, 631 (Tex. 2008) (“[C]hanging the meaning of the statute by adding 

words to it, we believe, is a legislative function, not a judicial function.”).

Under the ordinary, common meaning of “engaged in the business” and the Act’s language, 

a person is a “seller” under the Products Liability Act if the person is employed or involved (that 

is, “engaged”) in a commercial enterprise for profit or gain (that is, a “business”) in which the 

person distributes or places for use or consumption a product or component part into the stream of 

commerce for any commercial purpose. See TEX. CIV. PRAC. & REM. CODE § 82.001(3); Engage, 

Business, Doing Business, BLACK’S 10th ed. Because the Act’s definition of “seller” does not 

include additional language like “primarily,” “principally,” “regularly,” or “non-incidentally,” the 

question of whether the entity’s distribution or placement of the product is “incidental” in 
10

comparison to its other business activities is irrelevant to determining whether it is “engaged in 

the business” at issue.

B. Second Holding: Contractors and Construction Projects

The Court’s second, more specific holding is that “a general contractor who is neither a 

retailer nor a wholesale distributor of any particular product is not necessarily a ‘seller’ of every 

material incorporated into its construction projects . . . .” Ante at ___. While I agree with this 

holding as worded, it merely begs the question of when a general contractor is or is not a “seller” 

of a product it incorporates into a construction project. Under the Products Liability Act’s plain 

language, the answer is that a general contractor is a “seller” of a product if it is “engaged in the 

business of distributing or otherwise placing” the product “in the stream of commerce for use or 

consumption,” and does so “for any commercial purpose.” TEX. CIV. PRAC. & REM. CODE

§ 82.001(3) (emphasis added).

To the extent the Court suggests by this holding that the Act’s definition of “seller” applies 

differently to a “general contractor” than to others who sell products, I disagree. The statutory 

definition includes every “person” who is “engaged in the business,” TEX. CIV. PRAC. & REM.

CODE § 82.001(3), and the Court makes no effort to explain how the Act distinguishes general 

contractors from any other “person.” Nothing in the Act or in the common meaning of “engaged 

in the business of” imposes different criteria on “general contractors” than on builders, 

subcontractors, retailers, or wholesalers, and nothing in the common meaning or the Act conditions 

“seller” status on how the product is ultimately used. 
11

To the contrary, as discussed further below, this Court has held that the fact that the entity 

is a contractor that provides services through which it incorporates the product into a construction 

project does not preclude it from being a “seller” of that product. Fresh Coat, 318 S.W.3d at 899. 

Under the Act’s language, any “person” (thus, any general contractor, subcontractor, retailer, 

wholesaler, etc.) “who is engaged in the business of distributing or otherwise placing, for any 

commercial purpose, in the stream of commerce for use or consumption a product or any 

component part thereof” is a seller, regardless of how the product is used. TEX. CIV. PRAC. & REM.

CODE § 82.001(3) (emphasis added).

C. Evidentiary Factors

The Court identifies two facts that it believes demonstrate that Centerpoint’s placement of 

trusses into the stream of commerce for commercial purposes was merely “incidental” to its

primary business obligations: (1) Centerpoint did not price the trusses to achieve a gain or profit,

ante at ___, and (2) trusses were just one of “innumerable” products that Centerpoint sold, ante at 

___. In my view, because the Act does not support the Court’s incidental-sales test, these factors 

(which the Act never mentions) are irrelevant to the question of whether Centerpoint was a “seller” 

under the Act. And to the extent they are relevant at all, they merely demonstrate that the common, 

ordinary meaning of the phrase “engaged in the business of” does not support the Court’s new 

incidental-sales test.

Regarding the Court’s first factor, nothing in the Act or the ordinary meaning of “engaged 

in the business of” requires that the sale of the specific product at issue must be designed to achieve 

a financial “gain” or “profit.” Under the common, ordinary meaning of the phrase, even a non-
12

profit corporation like the Salvation Army may be “engaged in the business” of selling products, 

even though it is not seeking to “achieve a profit” from those sales. See, e.g., City of San Antonio 

v. Salvation Army, 127 S.W. 860, 862 (Tex. Civ. App.—San Antonio 1910, writ ref’d) (noting the 

Salvation Army’s legislative charter provides that the “proceeds of said business shall be devoted 

to the religious, charitable, educational or missionary purposes of the Salvation Army” (emphasis 

added)). The statutory definition provides no basis for excluding a non-profit or not-for-profit 

organization from the Act’s indemnity provisions.

More specifically, neither the Act nor the common meaning support the Court’s suggestion

that a party is “engaged in the business of” selling a particular product only if it seeks a “gain or 

profit” from the sales of that specific product. If a hardware store, for example, decides to sell all 

hammers for a price below the company’s costs, it is still “engaged in the business of” selling those 

hammers. When cell-phone carriers sold iPhones below cost to attract customers into service 

contracts, they were still “engaged in the business of” selling iPhones, even if their primary 

business was providing cellular services and they realized no financial gain from the sales of the 

phones. See Matt Scully & Scott Moritz, iPhones go from T-Mobile Loss Leader to New Source of 

Cash, BLOOMBERG (Apr. 30, 2015, 6:07 PM), http://www.bloomberg.com/news/articles/2015-04-

30/t-mobile-changes-iphones-from-loss-leaders-to-source-of-finance. And when Wal-Mart sold 

gasoline as a loss-leader in an effort to attract shoppers into their stores, it was still “engaged in 

the business of” selling gasoline, even if it did not seek a profit or realize a gain from those sales. 

See Brad Tuttle, Walmart’s New Loss Leader: Cheap Gas, TIME, (June 29, 2011), 

http://business.time.com/2011/06/29/walmarts-new-loss-leader-cheap-gas. In the same way, when 
13

Centerpoint sells trusses or other building materials at cost in connection with a contract to build 

an apartment complex, it is still “engaged in the business of” selling those building materials. Even 

under the dictionary definitions on which the Court relies, the seller need only be seeking some 

“gain” or “pecuniary benefit” from the transaction as a whole to be “engaged in the business,” 

even if it may not seek or “achieve a gain or profit” from the specific sale at issue. 

Regarding the Court’s second factor—that trusses were only one of “innumerable” 

products that Centerpoint sold—nothing in the Act supports the Court’s reliance on this factor 

either. The Act’s definition of “seller” expressly includes a person who distributes a product “for 

any commercial purpose.” TEX. CIV. PRAC. & REM. CODE § 82.001(3) (emphasis added). If a 

quick-lube shop whose primary business is to offer oil-change services sells oil, oil additives, oil 

filters, fuel filters, air filters, windshield-wiper blades, and “innumerable” other products, the shop 

is “engaged in the business” of selling each of those products, even if those sales are “incidental” 

to its oil-change services and even if those services are its “primary responsibility” to its customer. 

If the purpose of the sale is to provide the product in connection with the party’s services, the party 

still distributes the product for a “commercial purpose,” and the Act expressly provides that any

commercial purpose qualifies. See id. If a Jiffy Lube only occasionally sells a wiper blade, a 

hardware store sells only a few auger bits, an AT&T store sells only a few screen protectors, or a 

Wal-Mart store only occasionally sells a Hula Hoop, they are still “engaged in the business” of 

selling those products, even if the products are only one of “innumerable” other products that each 

of them sells. 

The apartment project Centerpoint was constructing when Fernandez was injured was one 
14

of “four or five” similar construction projects that Centerpoint had going at the time. And as the

Court itself acknowledges, it “is the nature of a general contractor’s business when it builds based 

on custom designs and specifications” to provide “innumerable construction products and 

materials.” Ante at ___. Under the ordinary meaning of “engaged in the business,” selling trusses 

and other building materials is part of the business in which Centerpoint engaged, even if it is an 

“incidental,” and not the “primary,” part. Although Centerpoint may be only “incidentally”—and 

not “primarily” or “regularly”—engaged in the business of selling trusses, it is nevertheless 

“engaged in the business” of selling trusses. I would apply the unambiguous statutory language 

and conclude that Centerpoint is a “seller” of trusses under the Products Liability Act. TEX. CIV.

PRAC. & REM. CODE § 82.001(3).

III.

Chapter 82 Precedent

In addition to its purported reliance on the statutory text, the Court relies on our precedent 

addressing the Products Liability Act to support its conclusion that Centerpoint does not qualify 

as a “seller.” Although we have addressed the Act’s definition of “seller” on a number of 

occasions,10 the key precedent here, the one on which both parties rely most heavily, and the one 

 

10 The Court first addressed the Act’s definition of “seller” in Fitzgerald. 996 S.W.2d at 867. In that case, the 

party seeking indemnity sold the manufacturer’s product but not the specific product that allegedly harmed the 

plaintiffs and was thus dismissed from the suit. Id. at 865. Contesting any indemnity obligation, the manufacturer 

argued that, to qualify as a “seller,” the party had to be in the “chain of distribution” of the specific allegedly defective 

product. Id. We disagreed, noting that the Act “does not explicitly require that the seller be proven to have been in the 

chain of distribution.” Id. at 867. We rejected the manufacturer’s interpretation because it “would have us judicially 

amend the statute to add an exception not implicitly contained in the language of the statute.” Id. We laid the proper 

foundation for interpreting and applying the Act by noting that only “truly extraordinary circumstances showing 

unmistakable legislative intent should divert us from enforcing the statute as written.” Id.

More recently, we acknowledged that the Act imposes “‘a new, distinct statutory duty’ of indemnification 

because it is, by its terms, ‘in addition to any duty to indemnify established by law, contract, or otherwise.’” Gen. 

Motors Corp. v. Hudiburg Chevrolet, Inc., 199 S.W.3d 249, 255 (Tex. 2006) (footnote omitted) (first quoting 
15

the Court addresses, is Fresh Coat, 318 S.W.3d 893. We held in Fresh Coat that a construction

contractor that installed synthetic stucco products on the exterior walls of new-build homes did

qualify as a “seller” of those products even though it purchased the products from the manufacturer 

and provided all the labor and services to install the products on the homes. Id. at 899. Noting that 

the Act “anticipates that a product seller may also provide services,” we concluded that 

“installation services do not preclude [a company] from also being a seller.” Id.

The Court claims that Fresh Coat is unhelpful here because the “contractor at issue in 

Fresh Coat sold and installed a particular product” while Centerpoint was “a general contractor 

constructing an improvement to real property.” Ante at ___. I find the Court’s attempt to 

distinguish Fresh Coat to be both incomplete and unconvincing. The Court begins by noting that 

the contract in Fresh Coat “required Fresh Coat to provide ‘labor, services and/or materials, 

equipment, transportation, or facilities’ necessary to apply and finish the synthetic stucco.” Ante

at ___ (citing Fresh Coat, 318 S.W.3d at 899). Under the Court’s analysis in Fresh Coat, however, 

there are no relevant differences between Fresh Coat’s contractual obligations and Centerpoint’s 

(to provide “the construction and services required by the Contract Documents,” including “all 

other labor, materials, equipment and services” necessary “to fulfill its obligations”). 

Although the Court suggests today that the Fresh Coat contract placed those products on 

“equal footing” with the services while Centerpoint’s contract did not, ante at n.8, the Court placed 

no value on that point in Fresh Coat. In both cases, the contract required the party to provide both 

 

Fitzgerald, 996 S.W.2d at 866; then quoting TEX. CIV. PRAC. & REM. CODE § 82.002(e)(2)). We thus acknowledged 

that our preconceptions based on common law liabilities and indemnity cannot control our construction of the Act’s 

provisions. See id. at 255–57. And most recently, we recognized that the Act “broadly defines [the term] ‘seller.’” 

Petroleum Sols., Inc. v. Head, 454 S.W.3d 482, 491 (Tex. 2014) (emphasis added).
16

the allegedly defective “materials” and the services to properly install them in the construction 

project. Nothing in Fresh Coat suggests that the fact that Centerpoint contractually agreed to 

provide other materials and services requires a conclusion that it was not “engaged in the business” 

of providing the materials that were later alleged to be defective. Nor does anything in the Act 

support that proposition.

Next, the Court notes that “Fresh Coat purchased [the synthetic stucco products] from their 

manufacturer and installed them pursuant to its contract with the builder.” Ante at ___ (citing Fresh 

Coat, 318 S.W.3d at 895). But the Court makes no effort to explain how Fresh Coat’s installation 

of the stucco products pursuant to its contract with the builder is different from Centerpoint’s 

installation of the trusses pursuant to its contract with Glenmont. See ante at ___. The product at 

issue in Fresh Coat was a combination of component products that the installer had to properly 

combine, apply, and finish in a particular way at the time of installation. See Fresh Coat, 318 

S.W.3d at 899 (explaining that the synthetic stucco system included a “base coat, mesh, and finish 

coat”). Here, by contrast, Centerpoint did not rely on Trussway’s instructions to “completely or 

partially assemble” the trusses because Trussway provided the trusses fully assembled. All 

Centerpoint had to do was install the trusses, and as even Trussway admits, “no builder needs 

instructions on putting up a truss any more than it needs to be told how to drive a nail.” In short,

Fresh Coat’s sale of the stucco products was far more “incidental” to the services Fresh Coat 

provided to install the stucco products than Centerpoint’s sale of the truss was to the services it 

provided to install the truss.

Next, the Court states, “In holding that Fresh Coat was a seller, we relied in part on witness 
17

testimony that the company was ‘in the business of providing [the] products combined with the 

service of [the] installation.’” Ante at ___ (quoting Fresh Coat, 318 S.W.3d at 899). While the 

Court correctly quotes from the Fresh Coat opinion, the Court did not find such conclusory 

testimony determinative in Fresh Coat, nor could it have. See, e.g., Elizondo v. Krist, 415 S.W.3d 

259, 264 (Tex. 2013) (rejecting testimony that legal malpractice resulted in reduced settlement as 

conclusory and mere ipse dixit); Nat. Gas Pipeline Co. of Am. v. Justiss, 397 S.W.3d 150, 161 

(Tex. 2012) (rejecting property owner’s valuation testimony as conclusory and speculative). While 

the testimony may have been worth noting, it was meaningless in the absence of evidence 

supporting that conclusory assertion. Here, the evidence established that Centerpoint was engaged 

in the business of selling trusses even if no witness expressly stated that it was.

Finally, the Court simply concludes that, in Fresh Coat, “we were not required to consider 

how and if the analysis would be affected when the person seeking seller status were a general 

contractor constructing an improvement to real property.” Ante at ___. But Fresh Coat was also a 

contractor constructing an improvement to real property, and nothing in the Act’s definition of 

“seller” or in our opinion in Fresh Coat supports the Court’s conclusion that general contractors 

should be treated differently from any other contractor, person, or entity.

The Court’s discussion of Fresh Coat is unconvincing, but what the Court does not say 

about Fresh Coat is even more illuminating. The Court makes no effort to distinguish or analogize 

Fresh Coat in light of the incidental-sales test it adopts and applies today. That is because the 

Court did not apply any incidental-sales test when it applied the Act’s plain language in Fresh 

Coat. The Fresh Coat Court never considered whether the contractor’s obligation to provide the 
18

product was “primary” or “incidental,” never discussed whether the contractor derived its “profits” 

or “gains” from its products sales or its installation services or both, and never mentioned whether 

the contractor sold products other than those alleged to be defective. See Fresh Coat, 318 S.W.3d 

at 899. Those questions, which the Court finds determinative in today’s case, do not appear in the 

Act and thus were simply not relevant to the Court’s conclusion that Fresh Coat qualified as a 

“seller.”

Instead, when the Fresh Coat Court addressed the specific question of whether the 

contractor could be a “seller,” it expressly agreed with the court of appeals’ holding in that case 

that the Act’s “definition of ‘seller’ does not exclude a seller who is also a service provider, nor 

does it require the seller to only sell the product.” Id. at 899 (quoting K–2, Inc. v. Fresh Coat, Inc., 

253 S.W.3d 386, 393 (Tex. App.—Beaumont 2008)). And it specifically recognized that 

“homebuilders and their contractors” could seek indemnity as sellers under the Act. Id. at 898–99. 

Ultimately, the Court agrees with Trussway’s argument that, under Fresh Coat, 

Centerpoint could not be a truss seller because it sold “‘construction services,’ not building 

materials.” Ante at ___. But it does not explain why it believes that is an either/or proposition, as 

if Centerpoint’s status as a construction-services seller precludes it from also being a truss seller. 

The Court expressly rejected this very approach in Fresh Coat, holding that “the company’s 

installation services do not preclude it from also being a seller.” Fresh Coat, 318 S.W.3d at 899. 

Applying that holding here, Centerpoint, like Fresh Coat, was “engaged in the business” of 

distributing the trusses it undeniably sold, and is therefore a “seller” under the Act even though it 

also provided services.
19

IV.

Strict-Liability Cases

Ultimately, the Court relies not on our own applicable decision in Fresh Coat but on other 

courts’ decisions addressing the issue of whether a service provider is a “seller” of products under 

common-law strict-liability principles. This case, however, presents the issue of who is a seller 

under the Products Liability Act, not who is a seller under common-law strict-liability principles. 

I believe it is unnecessary and imprudent to address the difficult and complicated common-law 

issue that this case does not raise. 

The common-law principle and the Act’s indemnity provisions address two separate but 

related issues. Under the common law, “the seller of a defective product is subject to strict liability 

for damages the product causes even though the defect was not his fault, but he is generally entitled 

to indemnity from the manufacturer by statute and by common law.” SSP Partners v. Gladstrong 

Invs. (USA) Corp., 275 S.W.3d 444, 446–47 (Tex. 2009) (footnote omitted). The cases on which 

the Court relies address whether and when a party that provides or distributes a product in 

connection with its service is considered to be a “seller” that is strictly liable for any defect in the 

product under the common law. This is an issue that has been the subject of extensive discussion 

and debate throughout the country for many years. See, e.g., William C. Powers, Jr., Distinguishing 

Between Products and Services in Strict Liability, 62 N.C. L. REV. 415 (1984).11

 

11 In his article published more than thirty years ago, President Powers explained that one rationale for 

imposing strict liability is the recognition that plaintiffs often lack access to the evidence necessary to prove the facts 

that would allow them to recover under fault-based liability theories. Id. Powers proposed that courts should decide 

whether the defendant in a “hybrid product-service case[]” is a “seller” subject to strict liability by inquiring “whether 

it is the type of case that evokes the proof rationale of strict products liability.” Id. at 430. In his view, many 

transactions that involve the provision of both products and services “can be classified themselves fairly easily as 

product or service” based on the proof rationale. Id. at 431. If a plumber who installs a water heater is sued, for 
20

As the Court notes, other courts have held, at least generally, that a service provider that 

also distributes products is not a “seller” subject to strict liability under the common law if:

 the sale of the product was only “incidental” to the service contract and the 

provider only “occasional[ly]” sold the products at issue, Barham, 803 S.W.2d 

at 738;

 the provider does not place the product in the stream of commerce, Peterson 

Homebuilders, Inc. v. Timmons, No. 14-03-00400-CV, 2004 WL 1660936, at 

*5 (Tex. App.—Houston [1st Dist.] July 27, 2004, no pet.) (mem. op.) 

(concluding without discussion that a subcontractor who built a foundation pad 

for a house “did not place this structural pad in the stream of commerce”);

 the provider simply “used” the product when constructing a project, Maack v. 

Res. Design & Constr., Inc., 875 P.2d 570, 581 (Utah Ct. App. 1994) (holding 

that a subcontractor was not a seller because it “simply utilized these component 

parts when constructing the residence—they were not in the business of selling 

stucco, adhesives, or membranes on a wholesale or retail basis”); or

 the product becomes an integral part of the building being constructed, 

Calloway v. City of Reno, 993 P.2d 1259, 1272 & n.5 (Nev. 2000) (holding that 

a contractor who merely installs products as part of a construction project “is 

not engaged in the business” of selling the products and therefore not a seller 

subject to strict liability).

We rejected some of these very reasons in Fresh Coat when we specifically held that the 

Act does not exclude those that provide construction services from being a “seller,” even when the 

product is used in and incorporated into a building project. Fresh Coat, 318 S.W.3d at 899. Instead 

 

example, a claim asserting “defective installation might be considered a service, since [the installation] occurred at a 

location accessible to the consumer after he had selected the plumber.” Id. at 430. A claim asserting a “defect in the 

water heater, however, would subject the consumer to the obstacles of proof that make product injuries special, and 

might therefore be governed by strict liability,” so “the plumber would be treated like a [seller] of a defective product.” 

Id. Even in cases that involve “homogeneous transactions” implicating both a product and a service, he suggested “a 

court might distinguish between causes of an injury that are local and contemporaneous (such as failure to rectify a 

sagging transmission line) and those that are remote and ancient (such as engineering studies concerning the location 

of water wells).” Id. at 432. In his view, “the proof rationale at least provides courts with a co-herent, workable 

method of analyzing cases that are on the border between products and services.” Id.
21

of relying on those extra-jurisdictional cases, I find better guidance in this Court’s own decisions.

First, in Barbee v. Rogers, 425 S.W.2d 342, 346 & n.3 (Tex. 1968), the Court addressed 

whether an optometrist was a “seller” of contact lenses subject to strict liability under the common 

law. In answering that question, the Court focused on the plaintiff’s allegations to determine 

whether he alleged that his injuries resulted from defective optometry services or a defective 

product. Id. at 346. The Court concluded that the optometrist could not be strictly liable as a seller 

because the plaintiff in that case attributed the injury not “to the product itself, i.e., the contact 

lenses, but to the professional and statutorily authorized act of ‘measuring the powers of vision’ 

of [the plaintiff’s] eyes and ‘fitting lenses . . . to correct or remedy . . . (his) defect or abnormal 

condition of vision.’” Id. (alterations in original). In short, the alleged “miscarriage, if such there 

was, rests in the professional acts of Respondents and not in the commodity they prescribed, 

fitted[,] and sold.” Id. Because the plaintiff complained not of “the act of one selling a ‘product in 

a defective condition unreasonably dangerous to the user,’” but instead complained of “the act of 

one deemed in law to have the competence to remedy a visual defect by furnishing particularly 

prescribed contact lenses,” the Court concluded that the optometrist was not a seller subject to 

strict liability in that case. Id. Under the Court’s reasoning in Barbee, if the plaintiff had alleged 

that the contact lenses were defective, rather than the optometrist’s services, the optometrist would 

have been a “seller” subject to strict liability even though the sales were incidental to the 

defendant’s optometric services.12

 

12 The Court rejects Barbee as authority because the Court did not expressly state in that case that the 

optometrist would have been a seller if the plaintiff had asserted product-liability claims against the optometrist, and 

because the Court “simply did not conduct” the incidental-sales analysis that it adopts and applies today. Ante at ___. 

The relevance of Barbee, however, is exactly that: in a common-law strict-liability context, the Court did not apply 
22

Second, our more recent decision in New Texas Auto Auction Services, L.P. v. Gomez de 

Hernandez, 249 S.W.3d 400 (Tex. 2008), confirms that a party whose business involves 

transferring ownership of a product from itself to another party is a “seller” subject to strict liability 

under the common law. Id. at 404. The issue in New Texas Auto was whether an auctioneer that 

facilitated the sale of an allegedly defective automobile was a seller subject to strict liability under 

the common law. 249 S.W.3d at 401–02. In holding that the auctioneer was not such a seller, the 

Court noted that businesses that “play only an incidental role in a product’s placement” (as 

opposed to the Court’s holding that businesses that only engage in “incidental” sales of the 

product) are not sellers, and that strict liability “applies to those whose business is selling, not 

everyone who makes an occasional sale.” Id. (first emphasis added). We reached that conclusion, 

however, not because auctioneers are not “engaged in the business” of selling, but because 

 

the incidental-sales test the Court applies today, but focused instead on the plaintiff’s allegations against the 

optometrist. Barbee, 425 S.W.2d at 346. Similar to the approach President Powers advocated, see supra note ___, the 

Court noted that the optometrist’s business involved both the provision of optometry services and “a merchandising 

concern,” Barbee, 425 S.W.2d at 345, and concluded that the optometrist was not a seller subject to strict liability in 

that particular case because the alleged liability was “not premised on any defect in the lenses as such” but on the 

services the optometrist provided, id. at 346.

As the following discussion of the Restatement’s principles explains, this “proof rationale,” based on the 

nature of the plaintiff’s allegations against the party seeking indemnity, may answer the Court’s illustration regarding 

hair salons and products. See ante at n.7. While the Court apparently doubts that we would hold that a hair stylist can 

be strictly liability as a seller of the products used when providing hair-styling services, our decision in Barbee, 

President Powers’ proof rationale, and the Restatement all suggest that the law should hold the stylist liable if, for 

example, the customer alleges that the product was defectively designed or manufactured and damaged her hair or 

scalp. On the other hand, if the customer alleges that the product was defective because the stylist improperly used or 

applied it, these authorities suggest that we should not subject the stylist to strict liability as the product’s seller. 

However we might decide that issue, the Court’s illustration demonstrates why the Court should not rely on commonlaw strict-liability cases from other courts and jurisdictions to decide whether Centerpoint is a seller under the Products 

Liability Act, because for these purposes the Legislature has already decided that issue. The day may come when we 

must reconsider Barbee’s approach to deciding whether a service provider is subject to common-law strict liability as 

a seller of products provided in connection with its services. This, however, is not that day. As for whether the hair 

stylist would be a seller entitled to statutory indemnity under the Products Liability Act, we must at least agree that 

only the Act itself must provide the answer. 
23

auctioneers generally do not sell at all. Id. at 404–05. “Auctioneers are usually neither buyers nor 

sellers, but agents for both.” Id. at 401. Although “they are obviously engaged in sales,” we 

explained, “the only thing they sell for their own account is their services; the items they auction 

are generally sold for others.” Id. at 402 (emphasis added). The distinction we recognized in New 

Texas Auto between a “seller” and an auctioneer was in the fact that auctioneers are not “engaged 

in the business of selling or otherwise distributing products” because an auctioneer neither 

“transfers ownership” nor “provides the product.” Id. at 404 (quoting RESTATEMENT (THIRD) OF 

TORTS § 1 (AM. LAW. INST. 1998)). A seller, in other words, is one who passes title from itself to 

another, not one who assists with or facilities such a transaction for another. Id. at 404–05.

Once the Court identified that distinction in New Texas Auto, it then noted that the 

auctioneer in that case had in fact “actually held title to the [allegedly defective automobile] when 

it was finally sold at auction.” Id. at 405. Thus, that auctioneer was in fact the “seller” in that 

particular transaction. See id. But “it was undisputed that [the auctioneer] normally never took title 

to the cars it auctioned, and did so here only because an arbitrator ordered it to do so.” Id. Because 

sellers subject to strict liability are “those whose business is selling, not everyone who makes an 

occasional sale,” the Court concluded that the auctioneer in that case was not subject to strict 

liability even though it actually sold the vehicle in that case. Id. at 405–06. The Court reached that 

conclusion not because the sale in that case was only “incidental” to the auctioneer’s services, but 

because the auctioneer “normally never” engaged in such sales at all. Id. at 404–05.

In discussing these principles in New Texas Auto, the Court relied heavily on the 

Restatement (Third) of Torts. The Restatement supports the proposition that a service provider that 

also distributes products can be a “seller” subject to strict liability under the common law. It begins 
24

with the unremarkable principle: “Services, even when provided commercially, are not products.” 

RESTATEMENT (THIRD) OF TORTS: PRODS. LIAB. § 19 (1998). But it rejects the notion that one who 

provides a service is not a seller of products used in the provision of the service. To the contrary, 

the Restatement explains, “When a building contractor sells a building that contains a variety of 

appliances or other manufactured equipment, the builder, together with the equipment 

manufacturer and other distributors, are held as product sellers with respect to such equipment 

notwithstanding the fact that the built-in equipment may have become, for other legal purposes, 

attachments to and thus part of the underlying real property.” Id. § 19 cmt. e.

Thus, for example, “one who contracts to inspect, repair, and maintain machinery owned 

and operated by another is the provider of a product-related service rather than the provider of a 

product.” Id. § 19 cmt. f. However, if “a product repairer replaces a worn-out component part with 

a new part, the replacement constitutes a sale of the part . . . .” Id. And one “sells or otherwise 

distributes a product when, in a commercial transaction, one provides a combination of products 

and services and either the transaction taken as a whole, or the product component thereof,” 

constitutes a commercial sale or distribution of the product. Id. § 20(c). When a service-provider 

sells or provides a product that is “consumed or permanently transferred to the customer” in 

connection with the service, “the transaction ordinarily is treated as a sale of the material that is 

consumed in providing the service,” and this is true “[e]ven when the service provider does not 

charge the customer separately” for the product. Id. § 20 cmt. d. In short, as we noted in Fresh 

Coat, the Restatement “recognizes that a product seller may also provide services.” 318 S.W.3d at 

899.
25

Ultimately, however, the Court need not and should not decide in this case whether 

Centerpoint was a “seller” subject to strict liability under the common law. The issue before us is 

whether Centerpoint is a “seller” who is entitled to indemnity under the Products Liability Act. 

The Court appears to equate the two today. See ante at n.5 (suggesting that “by arguing that it is a 

seller for statutory-indemnity purposes, Centerpoint is essentially conceding that it would be a 

seller for purposes of a strict-liability claim brought by an injured party”). As we noted in New 

Texas Auto, however, the Products Liability Act “was not intended to replace [the Restatement] or 

the common law except in limited circumstances[, and] its broad definitions were drafted to 

provide indemnity for all retailers, even if they are not proper defendants in an underlying products 

claim.”249 S.W.3d at 405 (citing Fitzgerald, 996 S.W.2d at 867 (holding defendant who did not 

sell product that injured plaintiff was nevertheless entitled to indemnity)).

For these reasons, the Court’s reliance on other courts’ decisions addressing the commonlaw strict-liability question is unconvincing, not only because they address the common-law 

question, but also because they are inconsistent with this Court’s own prior decision in Barbee and 

the Restatement’s guidance. Ultimately, however unclear and unsettled the common-law question 

may be in Texas or throughout the country, the question before us is not what the common law 

should be, but what Texas statutory law is. Even if the Court desires to limit the scope of the 

Product Liability Act’s definition of “seller,” we must apply the Act as written in this case, not 

announce common-law principles. “[A]s with any statute, we begin with the text,” City of DeSoto 

v. White, 288 S.W.3d 389, 395 (Tex. 2009), and when “the statute’s language is unambiguous and 

does not lead to absurd results, our search also ends there: ‘Where text is clear, text is 

determinative.’” Tex. Adjutant Gen.’s Office v. Ngakoue, 408 S.W.3d 350, 362 (Tex. 2013) 
26

(quoting Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009)). In short, the 

statutory definition—and “only” that definition—should control our decision in this case. 

Needham, 82 S.W.3d at 318. 

V.

Conclusion

As part of its regular business for financial gain, Centerpoint contracted to transfer title of 

an allegedly defective truss from itself to Glenmont. It was thus a seller of the truss and not merely 

a facilitator of the sale. And making such sales was a regular part of the business in which 

Centerpoint was engaged. The summary judgment evidence in this case conclusively established 

that Centerpoint was “engaged in the business of distributing or otherwise placing” trusses “in the 

stream of commerce for use or consumption” and for a “commercial purpose.” TEX. CIV. PRAC. &

REM. CODE § 82.001(3). It was thus a “seller” under the Product Liability Act’s plain language. 

Of course, the Legislature could have defined the term “seller” to include only those who 

are “primarily” engaged in the business of distributing an allegedly defective product, who do not 

make such sales only “incidentally” as part of other business activities, who price the product to 

“achieve a profit” or “gain,” or who do not sell “innumerable” other products in conjunction with 

the provision of a service. But it did not. Because the Court concludes that Centerpoint was not a 

seller when the Products Liability Act plainly says that it was, I respectfully dissent.

_____________________

Jeffrey S. Boyd

Justice

Opinion delivered: June 17, 2016