1 In The 

### Court of Appeals Ninth District of Texas at Beaumont

__________________ N O . 09
- 20
- 00297
- CV

__________________ ENTERGY TEXAS, INC. , Appellant
V. DAVID WOOLLEN AND WAYNE HILL , Appellee s

__________________________________________________________________ On Appeal from the 172nd District Court Jefferson County, Texas Trial Cause No. E
- 202,405

__________________________________________________________________ MEMORANDUM OPINION Appellant Entergy Texas, Inc. (“Entergy”) complains that the trial court erred by denying its Motion for Summary Judgment because appellees, David Woollen and Wayne Hi ll (collectively referred to as “Plaintiffs”) , violated Chapter 752 of the Texas Health and Safety Code and , a s a result , their claims are extinguished due to circular indemnity. See Tex. Health & Safe t y Co d e Ann. § § 752.001

- .008. We reverse the tri al court’s A mended O rder and re mand to that court for further proceedings.2 BACKGROUND In September 2017, Plaintiffs were riding in a boat in a flooded area in Hardin County, Texas, and performing rescue operation s during Hurricane Harvey when Woollen’s b oat struck a n energized power line , causing Plaintiffs to be electrocuted and burned

. Plaintiffs sued Entergy for negligence and alleged that Entergy owned and operated the power line and owed Plaintiffs a duty to protect and prevent injury during the Hurricane Harvey rescue operations. According to Plaintiffs, Ent ergy was aware of flooding in the area and breached its duty to Plaintiffs by failing to t ak e
proper precautions to protect rescuers from electrocution by de

- ene rgizing the power line s in the flood ed areas
. Plaintiffs alleged that Entergy’s failures were the proximate cause of the accident and their injuries

. In its First Original Amended Answer to Plaintiffs ’ Orig inal Petitio n, Entergy answered with affirmative defenses , including that Plaintiffs were guilty of acts and/or omissions constituting contributory negligence and negligence per se for violating the provisions of section 752.001 , and following, of the Texas Health and Safety Code. See id . § 752.001. Entergy moved for s ummary judgment on its Chapter 752 affirmative defense and indemnity claim and argued that Plaintiffs violated Chapter 752 by placing themselves and the boat within six fee t of a high voltage overhead power line without first a rrang ing with Entergy to guard against possible contact

. See id. §§ 752.001

- .008. According to Entergy, Plaintiffs must3 indemnify it for all liability it incur red a s a result of Plaintiffs ’ electrical c ontacts , and due to circular indemnity, Plaintiffs ’ claims are extinguished as a matter of law. Entergy argued that it is undisputed that Plaintiff s : (1) performed an activity where it was possible to bring themselves and the boat w ithin six feet of a n overhead high voltage power line without first making arrangements with Entergy to guard against contact ; and (2) physically and electrically cont acted a high voltage overhea d
power line while navigating through flood waters off the roadway s , over private yards, and between houses

. Entergy further argued th at any alleged negligence on its part does not negate statutory indemnity. See id. § 752.00 8. To establish facts relevant to its Chapter 752 defense, E ntergy attached relevant excerpts from Plaintiffs’ depositions; the depositions of Dr. Peter Cass (“Cass”) and Stephanie Cass, who were witnesses to the accident ; and the affidavit of David Richard, Entergy’s Senior Manager, Operations and Safety. In his deposition, Woollen testified that he drove his boat down Keith Road with Hill to pick up Cass , Stephanie, and their daughter, and after he took the Casses
t o get gas for their generator , he decided to help rescue a family

. According to
Woo l len, the next thing he remember s was hearing his wife tell him that he had been electrocuted. Wool l en testified that prior to the accident, h e never contacted Entergy regarding the power lines , but he had heard that the power was supposed to have4 been turned off

. Wool l en explained that when he was operating his boat, the back of his head contacted the power line

. H ill testified that he volunteered to help Woollen in rescue efforts

. Hill testified that after they took the Casses to get gas and to check on a friend’s cat , they planned to navigate across the highway to help people who needed a boat. Hill explained that they followed the streets and stayed on the roadway until they reache d Artesian Acres where the accident occurred. According to Hill, he did not remember the accident or being near any power lines

. Hill testified that prior to the accident, he did anticipate that he would be near power lines, but he did not call Entergy to de

- energize any power lines. Cass testified that he , St ephanie, and his daughter, Natalie, were with Woollen and Hill when the accident occurred. Ca ss testified that the y decided to help evacuate people on the other side of H ighway 69 , and Woollen drove the boat while Hill navigated. C a ss explained that he saw power lines along the road , and they tried to stay as far away as possible because they did not know if t he lines were energized. Cass also explained that they had to travel under one or two lines, but he could not remember if they were cable or power lines

. Cass testified that while they were navigating through the neighborhood , they encountered some dry roads and had to travel between houses and through individual yards. According to Cass, they had to be careful because it was “ fairly tight ” navigating between houses

.5 Cass testified that at one point they were navigating between two houses when they encountered a power line in the backyard of the houses that blocked their route

. Cass explained that Woollen throttled down the engine while the y discussed how
t hey were going to navigate around the power line, but the boat drifted towards the power line , causing the power line to electrocute Hill and Wool l en by contact ing the boat and Woollen ’s head. Cass testified that the boat came within two t o three feet of the power line , which they assumed was energized, and he did not know if Wool l en or Hill had contacted Entergy before they entered the area. Stephanie testified that on the day of the accident, she rode with Woollen and
Hill to check on pets and to help with evacuation efforts

. Stephanie testified that they traveled under power lines and assumed that they were energized , but she also assumed that they were dead because there was no power. Stephanie explained that some of the roads were not flooded, and they had to travel through individual yards and between houses

. Stephanie further explained they found themselves in what they assumed was the backyard of someone’s home when the y encounte red a p ower line that they had to maneuv er under , and Stephanie testified that the power line ca me in contact with the boat and Woollen ’s head. Stephanie testified that nobody told her that the power lines were de

- energized , and on the day of the accident, she did not have any conversations with Entergy

.6 In his affidavit, David Richard averred that he was employed by Entergy as Sr. Manager, Operations and Safety and that he has personal knowledge of the power lines contacted by Woo l len and Hill. Richard te stified that the bare overhead powerline contacted b y Woollen and Hill carried 7,600 volts mea suring from phase to ground. Plaintiffs filed a Response to Defendant’s Motion for Summary Judgment in which they argued that Entergy’s motion should be denied because Chapter 752 does not apply when a person comes in contact with an overhead line wh ile on the water engaging in rescue boating activit i es during natural disasters

. Plaintiffs further argued that if Chapter 752 does apply, complying with the statute during hurricane rescues is an impossibility

. Plaintiffs argue d that the statute’s legislative history shows that the statute was designed to address dangers associated with anticipated work around power line s and not to insulate Entergy from liability during natural disasters. Plaintiffs further argued that Chapter 75 2 does not apply to accidents that

occur on water because the statute specifically provides that it applies to accidents that occur on land, a building or highway , or other premises. According to Plaintiffs, the accident happened on a boat and on the water , and the only possible location that could apply would be a “premises,” but the statute does not define “premises” and water does not fall under the term’s comm on definition

.7 Plaintiffs also argue that the statute only applies to “work” because the inten t of the statute was to address concerns with employers and employees working around power lines. Plaintiffs contend that the statute does not apply because they did not intend to perform work around high voltage lines. According to Plaintiffs, although En tergy was aware of the flood and the presence of rescue boaters , Entergy was negligent because it failed to take all necessary steps to ensure the safety of citizens by de

- energizing all the power lines in the flooded areas , and Entergy should not be affor ded immunity for activities that it knew were ongoing by claiming that it was required to be notified by boaters performing rescue operation s
. P laintiff s’
summary - judgment evidence includes , among other items, the statute’s Bill Analysis; a News Release issue d by Entergy regarding its preparations for Tropical Storm Harvey; excerpts from the deposition of Richard; excerpts from the deposition of Cass; and Trouble Tickets from Entergy’s Outage Management System

. I n an Amended Order, the trial cou rt denied Entergy’s Motion for Summary Judgment and made the following find i ngs: 1. There are substantial grounds for differences of opinion regarding the one controlling question of law presented by [Entergy’s] Motion for Summary Judgment

– whether the Texas Health & Safety Code §§ 752.001

- .008 apply to the facts presented, to which this Court rules that the statute does not apply to the facts presented in this case ; and
2. Since the application of the statute would result in the dismissal of Plaintiffs’ claim s in this case through circular indemnity, an8 immediate appeal from t his Amended Order may materially advance the ultimate termination of this litigation. Entergy filed this interlocutory appeal. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(d).
ANALYSIS
In its sole issue, Entergy argue s that the trial court erred in denying its Motion for Summary Judgment because Chapter 752 applies to the facts in this case, it is undisputed that Plaintiffs viola ted the statute , and Plaintiffs ’ violation results in circular indemnity. Entergy argues that the plain language of Chapter 752 makes it clear that the L egislature intended the provisions to apply to both employment and

non - employment activities. See Tex. Health & Safety Code Ann. §§ 752.003, 752.004. According to Entergy, the plain language of the statute expressly includes activities on land or other premises , which would include Plaintiffs ’ rescue boating activity. Entergy also argues Plaintiffs are not exempt from complying with the
statute and that Chapter 752 applies to Plaintiffs regardless of Plaintiffs’ intent or any allegations of negligence against Entergy. Plaintiffs argue that Chapter 752 does not apply because Plaintiffs were not involved in a ny sort of work or activity or function as contemplated by Chapter 752.
See id. §§ 752.003

- .005. Plaintiffs further argue that Chapter 752 does not apply to people who are simply traveling in the vicinity of a power line or to boats traveling on the water. According to Plaintiffs, since they had no intent to perform any work9 around high voltage power lines, they were not required to notify Entergy, and since
t he winds and current drifted the boat into the power line, Plaintiffs should not be held liable for Entergy’s losses because they were not responsible for any alleged violation of Chapter 752. See id. §§ 752.003, 752.007, 752.008. Plaintiffs contend that t he fact that such a violation would result in a criminal penalty provides a compelling reason not to construe the statute in a manner that would include people who were merely passing by a powerline while rescuing victims during natural disasters.
We rev iew rulings on motions for summary judgment using a de novo standard. See Provident Life & Accident Ins. Co. v. Knott , 128 S.W.3d 211, 215 (Tex. 2003). The moving party has the burden to show with competent summary

- judgment evidence that no genuine issue o f material fact exists and it is entitled to summary judgment as a matter of law. See Tex. R. Civ. P. 166a(c) ; Mann F r ankfort Stein & Lipp Advisors, Inc. v. Fielding , 289 S.W.3d 844, 848 (Tex. 2009) ; Nixon v. Mr. Prop. Mgmt. Co. , 690 S.W. 2d 546, 548 (Tex. 1985). On appeal, we review the summary

- judgment record “in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion.” City of Kell er v. Wilson , 168 S.W.3d 802, 824 (Tex. 2005). We credit evidence in favor of the verdict if reasonable jurors could and disregard evidence that contradicts the verdic t unless reasonable jurors could not. Id.10 at 827. Summary judgment for a defendant is proper only if the defendan t negates at least one element of each of the plaintiff’s theories of recovery

. Sci. Spectrum, Inc.
v. Martinez , 941 S.W.2 d 910, 911 (Tex. 1997). A party asserting an affirmative defense has the burden of pleading and proving the defense as a matter of law such that there is no genuine issue of material fact. Montgomery v. Kennedy , 669 S.W.2d 309, 310

- 11 (Tex. 1984); Chavez v. City of San Antonio ex rel. v. City Public Service Bd. o f San Antonio , 21 S.W.3d 435, 438 (Tex. App.

— San Antonio 2000, pet. denied); see also Tex. R. Civ. P. 94. The issue in this appeal involves statutory construction, which is a question of law that we review de novo

. See Bragg v. Edwards Aquifer Auth. , 71 S.W. 3d 729, 734 (Tex. 2002). When construing a statute, we must ascertain the L egislature’s intent in e nacting the statute. Fleming Foods of Tex. v. Rylander , 6 S.W.3 d 278, 284 (Tex. 1999). In determining the L egislature’s intent, we look to the plain meaning of the words used in the statute. See Fireman’s Fund Cty. Mut. Ins. Co. v. Hidi , 13 S.W.3d 767, 768

- 69 (Tex. 2000). We presume every wor d was deliberately chosen and that excluded words were purposely omitted

. USA Waste Servs. of Houston, Inc. v. Strayhorn , 150 S.W.3d 491, 494 (Tex. App.

— Austin 2004, pet. denied)

. We must consider the entire act and not isolated portions. See Jones v. Fowler , 969 S.W.2d 429, 432 (Tex. 1998). We may also consider the legislative history, the “object sought to be attained [] ” by enacting the statute , and the “consequences of a particular11 construction [

. ] ” Tex. Gov’t Code Ann. § 311.023. However, legislative history cannot be used to alter or disregard the express terms of a code provision when i ts meaning is clear. Rylander , 6 S.W.3d at 284. We now turn to the relevant provision s of Chapter 752 of the Texas Health and Safety Code , which pertains to person s who engage in activities near high voltage power lines

. See Tex. Health & Safety Code Ann. §§ 7 52.001

- .008 ; McCaughtry v. Barwood Homes Ass’n , 981 S.W.2d 325, 334 (Tex. App.

— Houston [ 14 th Dist.] 199 8 , pet. denied). Section 752.001 (1) defines “high voltage” as “more than 600 volts measured between conductors or between a conductor and the ground.” Tex. Health & Safety Code Ann. § 752.001(1). Section 752.002 provides exemptions for certain employees and activities and notes the Chapter “ does not apply to the construction, reconstruction, operation, or maintenance by an authorized person of overhead electrical or communication circuits or conductors [.]” Id. § 752.002(a). Section 752.003 requires a person responsible for tem porary work or a temporary activit y or function within certain prescribed proximities to a high voltage overhead line to notify the operator of the line at least forty

- eight hours before any work, activity, or function b egins and to arrange for temporary de

- en ergization o f the line or other safety precautions to prevent contact between the line and the material or equipment or the person performing the work, activity, or function

. I d. § 752.003(a)

- (b). Section 752.004 requires a person to first comply with section12 752.003 before pe rforming a function or activity on l and , a building, a highway, or other premises if at any time the person performing the function or activity may “(1) move or be placed within six feet of a high voltage overhead line while performing the function or activity; or (2) bring any p art of a tool, equipment, machine , or material within six feet of a high voltage overhead line while performing the function or activity.” Id. § 752.004 (a)

- (b)

. Unless a person guards against danger by contact with the line as prescribed by section 752.003 , a person may not operate any equipment within six feet of a high voltage line. Id. § 752.005(2). The L egislature’s intent behind passing Chapter 752 was to ensure th e safety of individuals engaged in activities near power lines. See Ringo v. Gulf States Util.
Co. , 569 S.W.2d 31, 65 (Tex. App.

— Beaumont 1978, writ ref’d n.r.e.) (discussing purpose of the predecessor statute)

. A person who violates C hapter 752 is subject to a criminal penalty , and if the violation results in physical or electrical contact with a high voltage overhead line, the person is liable to the owner or ope rator of the line for all damages to the facilities and for all liability that the owner or opera tor incur s because of th e contact. Tex. Health & Safety Code Ann. § § 752.00 7, 752.008 ; see also Tra i l v. Friedrich , 77 S.W.3d 508, 513

- 14 (Tex. App.

— Houston [1 st Dist.] 2002, pet. denied) ; Chavez , 21 S.W.3d at 43 8

- 39

. Th e purpose of the indemnification provision of Chapter 752 is to place the liability for losses resulting from noncompliance with the notification and safety provisions on the person responsible13 for performing the temporary work, activity , or function near a h igh voltage overhead line

. See Chavez , 21 S.W.3d at 439. We are not persuaded by Plaintiffs’ argument that Chapter 752 only applies
to people doing work in the vicinity of power lines. The st atute is unambiguous, and where statutory text is clear the text of the statute determines the Legislature’s intent. Entergy Gulf States, Inc. v. Summers , 282 S.W.3d 433, 437 (Tex. 2009). It is clear that the Legislature did not intend for Chapter 752 to o nly apply to emp loyees performing work because the Legislature included the terms “function” and “activity” in addition to “ work, ” and the Legislature also included the terms “person” “individually,” and “employee” with the conjunction “or , ” which makes it clear that the provisions were intended to apply to both employment and non

- employment activities. See Tex. Health & Safety Code Ann. §§ 752.003, 752.004 ; Presley v. Gulf States Utils. Co. , No. 09

- 10

- 00039

- CV, 2010 WL 4264097, at *6 (Tex. App.

— Beaumont Oct. 28, 2010, pet. denied) (mem. op.). We disagree with Plaintiffs ’ conten tion that the legislation was aimed at work being done on land and things solidly grounded and d oes not apply to ev ents happening in a boat on the water

. While Chapter 752 does not define the term “premises,” Chapter 481 of the Texas Health and Safety Code defines “premises” as

“ real property and all buildings and appurtenances pertaining to the real property. ”
See Tex . Health & Safety Code. Ann. §§ 481.134 (a) (4) , 752.00 1

. Section 752.00414 expressly includes activities “on land, a building, a highway , or other premises [

. ] ” Id. § 752.004 . It is undisputed that P laintiffs were in a boat over someone’s privately owned real property that was temporarily flooded , and that the real property remained a premises before, during, and after Hurricane Harvey. See Baker v. City of Fort Worth , 210 S.W.2d 564, 567 (Tex. 1948) ( stating that a flood overflowed petitioner’s premises and inflicted damages) ; City of Austin v. Leggett , 257 S.W.3d 456, 474

- 75 (Tex. App.

— Austin 2008, pet. denied) (explaining that a flooded intersection is an ordinary premises defect). We conclude that Chapter 752 applies
to Plaintiffs ’ temporary activity of conducting rescue boating operations on a premises

. We also disagree that Plaintiffs are not responsible for contacting the power line

. A person is responsible for violating Chapter 752 when the y have the desire to perform a temporary activity and have some degree of control o ver the activity. See Tex. Health & Safety Code. Ann. § 752.003; Chavez , 21 S.W.3d at 439. It is undisputed that Plaintiff s made the decision to take the boat into flooded waters and perform rescue operation s, and while navigating the boat , Plaintiff s came into contact with a power line. The fact that Plaintiffs did not plan to perform a temporary activity near an overhead power line or unexpectedly became aware of the possibility that an activity would have to be performed near a power line does not excuse Plaintiffs from the obligation of inform ing Entergy before initiating the activity. See15 AEP Tex. North Co. v. SPA Pipe, Inc. , No. 03

- 06

- 00122

- CV, 2008 WL 5210919, at

* 6 (Tex. App.

— Austin 2008 Dec. 12, 2008, pet. dism’d ) (mem. op.) . A contrary construction would be inconsistent with the public policy interests of imposing liability on the person performing an activity near a power line and of minimizing the potentia lly devastating consequences of doing so. See id. Additionally, we conclude that Plaintiffs are not exempt from complying with Chapter 752. By its plain language, Chapter 752 does not exempt private persons engaged in performing rescue operations from indemnity for failure to comply with section 752.003. See Tex. Health & Safety Code. Ann. § § 75 2.002, 752.003

. Section 752.002 expressly exempts ce rtain employees and activities from complying with the provisions of the Act, and if the Legislature wanted to exclude persons performing rescue operations from the Act’s application it could have done so. See id. Moreover, since section 752.008 does not c ontain qualifications limiting its applicability to situations in which the utility i s without fault , Chapter 752’s indemnity provision applies regardless of any alleged negligence on Entergy’s part.
See id. § 752.008; AEP Tex. North Co. , 2008 WL 5210919, at *6. Based on the record before us, w e conclude Entergy established as a matter of law that Chapter 752 applies to the facts in this case , Plaintiffs violated Chapter 752 by performing an activity on a premises that brought Plaintiffs and their boat within six fee t of a high voltage overhead power line with out first making arrangement s16 with Entergy, and Plaintiffs’ claims are extinguished due to circular indemnity. See Tex. Health & Safety Code Ann. §§ 752.001

- .0 08. We further conclude that the trial court erred by denying Entergy’s Motion for Summary Judgment. In its Motion for Summary Judgment, Entergy sought to recover costs; therefore, w e sustain Entergy’s sole issue and reverse the trial court’s Amended Order and remand to that court for further proceedings consistent with this opinion

. REVERSED AND RE MANDED

.

_________________________ W. SCOTT GOLEMON Chief Justice

Submitted on August 26, 2021 Opinion Delivered November 1 0 , 2021 Before Golemon , C.J., Kreger and Johnson, JJ.