No. 14-15-00614-CV 

IN THE COURT OF APPEALS

FOR THE FOURTEENTH DISTRICT OF TEXAS

MAXIM CRANE WORKS, L.P. , 

Appellant 

V. 

BERKEL & COMPANY CONTRACTORS, INC. 

Appellee 

Appeal from the 149th Judicial District Court 

Brazoria County, Texas 

Trial Court Cause No. 75576-CV 

BERKEL & COMPANY CONTRACTORS, INC.’S 

OBJECTIONS TO MEDIATION & ABATEMENT ORDER 

Thomas C. Wright 

State Bar No.22059400 

Jessica Z. Barger 

State Bar No. 24032706 

Garrett A. Gibson 

State Bar No. 24069024 

WRIGHT & CLOSE, LLP 

One Riverway, Suite 2200 

Houston, Texas 77056 

(713) 572-4321 

(713) 572-4320 (fax) 

Reagan W. Simpson 

State Bar No. 18404700 

YETTER COLEMAN LLP 

909 Fannin Street, Suite 3600 

Houston, Texas 77010 

Tel. 713-632-8000 

Fax 713-632-8002 

ACCEPTED

14-15-00614

FOURTEENTH COURT OF APPEALS

HOUSTON, TEXAS

8/31/2015 2:44:33 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 14th COURT OF APPEALS HOUSTON, TEXAS 8/31/2015 2:44:33 PM CHRISTOPHER A. PRINE Clerk
2

TO THE HONORABLE FOURTEENTH COURT OF APPEALS: 

Appellee, Berkel & Company Contractors, Inc. (“Berkel”) files this 

objection to this Court’s mediation order, and respectfully shows the Court as 

follows. 

INTRODUCTION

The Court’s mediation order is premature because Maxim’s appeal for 

indemnity and defense costs is not ripe as this is an appeal from a final judgment, 

signed on June 17, 2015, against Berkel and Maxim for damages in excess of $43 

million. (See Ex. A, Final Amended Judgment) Maxim entered into a settlement 

with Plaintiff for its portion of the judgment. Berkel, however, responsible for 90 

percent of the judgment, has filed a motion for new trial—set to be heard on 

August 31, 2015. Berkel’s notice of appeal (in the event a new trial is not granted) 

is not due until September 15, 2015. 

Maxim’s attorney’s fees and indemnity claims is contingent on the outcome 

of any appeal on the merits in this case. (See Ex. B, Maxim’s supplemental motion 

for entry of judgment on Maxim’s Cross Action Against Berkel) In sum, 

mediation in Maxim’s appeal premature until there has been a final outcome on the 

merits – either in the trial court or on appeal – on the issues between Plaintiffs and 

Berkel. 
3

REASONS SUPPORTING OBJECTIONS TO MEDIATION 

 

Appellee Berkel and Appellant, Maxim, were co-defendants in the 

underlying trial court proceedings in Brazoria County. At the conclusion of trial, 

the jury found Berkel 90% responsible and Maxim 10% responsible for the 

underlying incident, a construction accident in which the plaintiff’s leg was 

severed. The jury awarded over $43 million to Plaintiff, his wife, and his daughter. 

(See Ex. A, Final Amended Judgment) Maxim has settled with Plaintiffs, but 

continues to pursue its indemnity and breach of contract claims against Berkel. 

Maxim advised the trial court that its claim for relief against Berkel was 

dependent on the outcome of the arguments Berkel is making in the trial court and 

anticipates making on appeal if necessary. Berkel’s motion for new trial is 

scheduled to be heard by the trial court on August 31, 2015. (See Ex. C, Notice of 

Hearing) Berkel’s notice of appeal would not be due until September 15, 2015. 

Since Maxim’s claims are contingent – at least in part – on the outcome of the 

merits of Berkel’s arguments, this Court should withdraw its mediation order until 

the claims of Plaintiffs against Berkel have been finally resolved on appeal. 

Conclusion

For the foregoing reasons, Berkel & Company Contractors, Inc. respectfully 

requests that this Court withdraw its mediation and abatement order of August 20, 

2015. 
4

Respectfully submitted, 

/s/ Jessica Z. Barger 

Thomas C. Wright 

State Bar No.22059400 

Jessica Z. Barger 

State Bar No. 24032706 

Garrett A. Gibson 

State Bar No. 24069024 

WRIGHT & CLOSE, LLP 

One Riverway, Suite 2200 

Houston, Texas 77056 

(713) 572-4321 

(713) 572-4320 (fax) 

wright@wrightclose.com 

barger@wrightclose.com 

gibson@wrightclose.com 

/s/ Reagan W. Simpson 

Reagan W. Simpson 

State Bar No. 18404700 

YETTER COLEMAN LLP 

909 Fannin Street, Suite 3600 

Houston, Texas 77010 

Tel. 713-632-8000 

Fax 713-632-8002 

rsimpson@yettercoleman.com 

ATTORNEYS FOR APPELLEE, 

BERKEL & COMPANY 

CONTRACTORS, INC. 
5

CERTIFICATE OF CONFERENCE 

I certify that I conferred with opposing counsel on August 29, 2015 

regarding the filing of this motion. This motion is opposed. 

/s/ Jessica Z. Barger 

Jessica Z. Barger 

CERTIFICATE OF SERVICE 

I hereby certify that a true and correct copy of this document was served on 

all counsel of record in this case, identified below, on August _31, 2015, 

electronically through the electronic filing manager and or via facsimile in 

compliance with the Texas Rules of Civil Procedure: 

Kurt B. Arnold 

M. Paul Skrabanek 

ARNOLD & ITKIN LLP 

6009 Memorial Drive 

Houston, TX 77007 

713-222-3850 (fax) 

e-service@arnolditkin.com 

Charles “Chuck” L. Clay, Jr. 

CHUCK CLAY & ASSOCIATES 

225 Peachtree Street, N.E., Suite 1700 

Atlanta, GA 30303 

Chuck@chuckclay.com 

Ann E. Knight 

J DIAMOND AND ASSOCIATES 

 PLLC 

1010 N. San Jacinto 

Houston, TX 77002 

713-227-6801 (fax) 

ann@jdiamondandassociates.com 

John D. Dwyer 

GORDON & REES LLP 

633 West Fifth street, 52nd Floor 

Los Angeles, CA 90071 

213-680-4470 (fax) 

Steven D. Selbe 

GORDON & REES, LLP 

1900 West Loop South, Suite 1000 

Houston, TX 77027 

713-961-3938 (fax) 

sselbe@gordonrees.com 

/s/ Jessica Z. Barger 

Jessica Z. Barger 
Exhibit A

07/01/2015 03:18 9798641061 149TH DISTRICT CT PAGE 02/04 

CAUSE NO. 75576 .. CV 

TYLER LEE AN:O LEIGH ANN LEE 

INDIVIOUALLY AND AS NEXT FRIEND 

OF SYDNEY ROSE LEE, MINOR 

Plaint([{ 

vs. 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

BERKEl .. & COMPANY CONTRACTORS, § 

INC., MAXIM CRANE WORKS, L.P., DIXON § 

EQUIPMENT SERVICES, INC., FLOYD § 

DIXON, ISAAC DOLAN, JAMES DAVIDSON § 

ANDREW BENNETT, AND LINJ< .. BELT § 

CONSTRUCTION EQUIPMENT CO. § 

Defendants 

§ 

§ 

IN THE :OISTRICT COURT OF 

BRAZORIA COUNTY, TEXAS 

l49TH JUDICIAL DISTRICT 

AMENDED FINAL JUDGMENT 

On Monday) April 20, 2015, this case was called to trial. Plaintiffs Tyler Lee and Leigh 

Ann Lee) individually and as next friend of Sydney Rose Lee, a. minor, appeared in person and 

th.t·ottgh their attorneys and announced ready for trial. Defendants Berkel & Company 

Contractors) Inc. (";Berkel',) and Maxim Crane Works, L.P. ("Maxim'') appeared through their 

attorneys and announced ready for trial. 

P1'ior to the beginning of trial, Defendant Link-Belt Construction Equipment Co. and 

, o(l.(, A tn~; iliA. 4 . Plaintiffs announced ~ettlement of $1,000,000, which is treated as a credit in this Judgment. 

A jury of twelve qualified jurors of Brazoria County (with two alternates) were selected, 

sworn, and empanel1ed) after which the jury heard the evidence and the arguments of counsel. 

Following the conclusion of evidence, in response to the jury charge, the jury made findings that 

the Court received, filed and entered as record on May 6, 2015. The questions submitted to the 

jury and the jury's findings are attached as Exhibit A and incorporated by reference. 

The jury found Defendant Berkel 90% responsible for the occurrence and found 

Defendant Maxim 10% responsible for the occW"rence. 
Exhibit A

07/01/2015 03:18 9798641061 149TH DISTRICT CT PAGE 03/04 

After. trial but prior to the entry of this Judgment, Defendant Maxim and Plaintiffs 

reached a settlement of $3,544,300.60, which is treated as a credit in this Judgment. 

The Court hereby renders judgment for Plaintiffs against Berkel. 

The Court orders that Plaintiff Tyler Lee recover damages jointly and severally from 

Defendant Berkel in the sum of $38,744,866.13, pr~judgm.ent interest of $387,805.81 (calculated 

on past damage awat·d of $5,572,800 at the annual r.ate of 5% for an accrual period of 509 days), 

court costs and post-judgm.en.t interest at the annual rate of 5% 1.1ntil paid, together with all costs 

of court, including costs incutted in enforcement and collection. 

The Court orders that Pla.intiff Leigh A1111 Lee, individually) recover damages jointly and 

severally from Defendant Berkel in the sum of $174~357.14, prejudgment interest of $6,263.01 

(calculated on past damage award of $90,000 at the annual :r.ate of 5% for a11 accrual period of 

509 days), court costs, and post~judgment interest at the a11nual rate of 5% until. paid) together 

with all costs of court, including costs incurred in enforcement an.d collection. 

The Court orders that Plaintiff Leigh Ann Lee; as next friend of Sydney Rose Lee, a 

minor, recover damages jointly and severally from Defendant Berkel in the sum of $479,482.13, 

prejudgment inte1·est of $3,131.51 (calculated on past damage award of $45,000 at the annual 

rate of 5% for an accrual period of 509 days), court costs) an.d post..judgment interest at the 

annual rate of 5% until paid, together with all costs of court, including costs incurred in 

enforcement and collection. 

The Court orders that Ma.xim)s Defense Fees) Costs and Expenses are as follows: 

Attorney's fees-- $327)000.00; 

Expert witness expenses/costs--

Miscellaneous expenses/costs--

Trial expenses/costs--

2 

$106,000.00; 

$30,000.00; and 

$41,600.00 
Exhibit A

07/01/2015 03:18 9798641061 149TH DISTRICT CT PAGE 04(04 

Total Defense Fees, Costs, and Expenses are: $504,600.00 

The Court additionally orders that pursuant to the .iury's findings as to the negligence 

questi011s in the Court's Jury Charge, and Chapter. 151 of The Texas Insurance Code, Maxim is 

not entitled. to reimbursement of Maxim's Defense Fees, Costs, and Expenses of and from Berkel; 

The Court hereby renders judgment for Berkel against Maxim on Maxim's Cross Action. 

All relief not expressly granted by this Judgment is denied. This judgment is final, 

disposes of all claims and parties, and is appealable. 

The Court orders execution to issue for this .Tudg1nent. 

SIGNED this _l!__ day of~2015. 

HONOi\ E ,JijjjGE TERRI HOLDER 

3 
CAUSE NO. 75576-CV 

TYLER LEE Al""D LEIGH ANN LEE 

INDIVIDUALLY AND AS NEXT FRIEND 

OF SYDNEY ROSE LEE, MINOR 

Plaintiff 

VS. 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

BERKEL & COMPANY CONTRACTORS, § 

INC., MAXIM CRANE WORKS, L.P., DIXON § 

EQUIPMENT SERVICES, INC., FLOYD § 

DIXON, ISAAC DOLAl"", JAMES DA VInSON § 

ANDREW BENNETT, AND LINK-BELT § 

CONSTRUCTION EQUIPMENT CO. § 

Defendants 

§ 

§ 

IN THE DISTRICT COURT OF 

BRAZORIA COUNTY, TEXAS 

149TH JUDICIAL DISTRICT 

MAXIM'S SUPPLEMENTAL MOTION FOR ENTRY OF JUDGMENT ON 

MAXIM'S CROSS ACTION AGAINST BERKEL 

TO THE HONORABLE JUDGE OF SAID COURT: 

COMES NOW, MAXIM CRANE "YORKS, L.P. a Defendant in the above numbered 

and referenced matter (hereinafter "Maxim") and files this Supplemental Motion for Entry of 

Judgment on Maxim's Cross Action Against Berkel, and in support thereof would respectfully 

show as follows: 

1. 

At the post-verdict hearings held on June 8, 2015, Berkel again, through a Motion for 

JNOY, a Motion to Disregard, and a Motion for Entry of Judgment, asked the court to fmd 

that Berkel is entitled to the workers' compensation bar to suit and that the Lees' claims 

and verdict against Berkel should, as a matter oflaw, be disposed of by the court-i.e. that 

the Lees should take nothing of and from Berkel (hereinafter may sometimes be referred to 

as "Berkel's Comp Bar Argument"). The court has taken Berkel's arguments under 

Exhibit B
advisement; thus, the reason why Maxim has fIled this Supplemental Motion for Entry of 

Judgment on Ma.x:im's Cross Action Against Berkel. 

II. 

Maxim hereby adopts and incorporates by reference, as if the same was fully set forth 

herein below, its previously filed Motion for Entry of Judgment as to lvlaxim's Cross Action 

Against Berkel (and Exhibits), which was filed on or about June 4, 2015. Hereinafter referred to 

as the "Original Motion for Entry of Judgment." The Original Motion for Entry of Judgment was 

based upon the facts and status of the case that existed at the time said pleading was filed. 

Specifically, that Berkel was not considered Mr. Lee's employer for purposes of the Texas 

Worker's Compensation Act, and so did not have the benefit of the workers compensation bar to 

suit by the Lees. Under that set of circumstances and facts, Maxim acknowledges that pursuant 

to Chapter 151 of the Texas Insurance Code (the Texas Anti-Indemnity Act) it would not be 

entitled to indemnity of and from Berkel; however, Maxim is of the opinion that it would be 

entitled to its defense costs of and from Berkel, but only to the extent caused in whole or in part 

by any negligent act or omission or any intentional act of Berkel. See the language of Chapter 

151 below: 

Sec. 151.102. AGREEMENT VOID AND UNENFORCEABLE. 

Except as provided by Section 151.103, a provision in a construction contract, or 

in an agreement collateral to or affecting a construction contract, is void and 

unenforceable as against public policy to the extent that it requires an indemnitor 

to indernnify, hold hannless, or defend a party, including a third party, against a 

claim caused by the negligence or fault, the breach or violation of a statute, 

ordinance, governmental regulation, standard, or rule, or the breach of contract of 

the indemnitee, its agent or employee, or any third party under the control or C'~~"""''''''''-':7~C''~r\"n t>.-f't"ht::> ~-nr1P."YrI-n1+PP. nthpr th<;:ln t"hp. -i-nilp.rn-n-itnr nr -it~ <;lo-p-nt prn-nl(yupp or J\,.j.p~l Y l..:J..lV.Ll V..l U..l ..... -'--'--'-U.V.l..l..li.1..l ............. , '-'UH,.,-'- l..LU.U.-'- , .... '--'-v -'--'--'-............... -'--'-.'-'.1....., ... '-'-'- .11..., '--"0 ..... -'--'-1.' ""' ..... -'-.>.y ... ..., J ........ , '-'-'-

subcontractor of any tier. [Emphasis addedJ 

Exhibit B
In the Charge submitted to the jury by the court, MAXli\1 was assessed 10% responsible, 

and BERKEL was assessed 90% responsible, in the negligence/liability questions. See Exhibit D, 

herein. Therefore, it is Maxim's position that it is entitled to reimbursement of 90% of its 

defense costs. 

Contrary to Berkel's assertions, when the anti-indemnity provisions of Chapter 151 are 

reviewed, the intent of the statute is clear, that is, to avoid both defense and indemnification and 

additional insured clauses/provisions that purport to indemnifY the indemnitee/additional insured 

for its own negligence or fault, but not void the indemnity provision in its entirety. The 

indemnity provision is unenforceable to the extent that it requires the indemnitor to indemnify 

the indemnitee for the indemnitee's negligence. The Bare Rental Agreement between Maxim 

and Berkel does not require Berkel to defend and indemnifY Maxim for Maxim's own 

negligence. Rather, the Agreement states Berkel shall do so "but only to the extent caused in 

whole or in part by any negligent act or omission or any intentional act of Lessee (Berkel) ... " 

However, in the event that this court, post-verdict, or some appellate court in the 

future, agrees with Berkel's Comp Bar Argument and concludes that Berkel was Tyler 

Lee's employer at the time of incident at issue and that, therefore, Berkel is entitled to the 

workers' compensation bar to suit, that the Lees' claims and verdict against Berkel should, 

as a matter of law, be dismissed, and that the Lees should take nothing of and from Berkel, 

then it is Maxim's position that it is entitled to not only 90% of its defense costs, but also to 

indemnity, of and from Berkel in the amount of the verdict returned by the jury in this 

case. Chapter 151 supports Maxim's position as to indemnity under the above described facts 

and circumstances. See the Exception to Chapter 151 set forth below: 

Exhibit B
Sec. 151.103. EXCEPTION FOR EMPLOYEE CLAIM. 

Section 151.102 does not apply to a provision in a construction contract that 

requires a person to indemnifY, hold harmless, or defend another party to the 

construction contract or a third party against a claim for the bodily injury or death 

of an employee of the indemnitor, its agent, or its subcontractor of any tier. 

So, if Berkel is allowed to utilize the workers compensation bar to suit as a defense to the Lee 

claims and verdict, then, pursuant to Chapter 151.103 and the Bare Rental Agreement, Berkel 

would be considered Lee's employer, the exception to the Anti-Indemnity Statute would apply, 

and Berkel would owe Maxim both defense and indemnity. 

m. 

Pursuant to its Original Motion for Entry of Judgment, Maxim submitted two proposed 

Judgments for the Court to consider as to the defense costs issue--{)ne in favor of Maxim, and 

one in favor of Berkel. At the June 8, 2015 post-verdict hearing, Maxim made its position as to 

these proposed Judgments clear~either the court should enter the appropriate Judgment as a 

the applicable wording of the appropriate Judgment and paste it into the Final Judgment that 

the court ultimately elects to enter in the case. 

H1 " . 

However, in the event that the Court embraces Berkel's Comp Bar Argument and is 

inclined to issue a ruling/Judgment accordingly, then Maxim attaches another proposed 

Judgment for the court's consideration. See Extibit "A". Like the other two Judgments 

previously proffered by Maxim, if the court elects to go with the Judgment attached as Exhibit 

"A", then the Court should enter said Judgment as a "Partial J udgrnent" and do so before the 

entry of the Final Judgment, or the Court should take the applicable wording of said Judgment 

and paste it into the Final Judgment that the court ultimately elects to enter in the case. 

Exhibit B
The Judgment attached as Exhibit "A" permits Maxim, under the circumstance wherein 

Berkel's Comp Bar Argument is embraced by the Court, to recover indemnity of and from 

Berkel (pursuant to Chapter 151.103 and the Bare Rental Agreement) in the amount found by 

the jury in their verdict from the trial ofthis case. 

v. PRAYER FOR RELIEF 

WHEREFORE, PREMISES CONSIDERED, lVIAXIlVI CRANE WORKS, L.P., 

prays that if the court is inclined to issue a Judgment in favor of Berkel on the workers 

compensation bar to suit, then MAXlM moves the court to enter a Partial or Final Judgment in 

accordance with the Judgment attached hereto as Exhibit "A," in the above numbered and 

captioned matter; and for such other and further relief, both general and special, at law and in 

equity to which MAXIM may otherwise be justly entitled. 

Respectfully submitted, 

J. DIAMOND & ASSOCIATES, PLLC 

/s/ Jeffrey L. Diamond 

Jeffrey L. Diamond 

State BarNo. 05802500 

Ann E. Knight 

State Bar No. 00786026 

1010 N. San Jacinto Street 

Houston, Texas 77002 

Tel: (713) 227-6800 

Fax: (713) 227-6801 

jeff@jdiamondandassociates.com 

ann@jdiamondandassociates.com 

Attorneys for Defendants: 

Maxim Crane Works, L.P., and James Davidson 

Exhibit B
CERTIFICATE OF SERVICE 

I hereby certify that a true and correct copy of the forgoing instrument was served upon 

all known counsel of record via facsimile, hand delivery, and/or certified mail, return receipt 

requested, on the 9th day ofJune, 2015. 

Kurt B. Amold 

ARNOLD & ITKIN 

6009 Memorial Drive 

Houston, TX 77007 

Charles Lloyd Clay, Jr. 

CHUCK CLAY & ASSOCIATES, LLC. 

3280 Peachtree Road NE, Suite 2050 

Atlanta, GA 30305 

John Dwyer 

GORDON & REES, LLP 

633 West Fifth Street, 52nd Floor 

Los Angeles, CA 90071 

Steven D. Selbe 

GoRDON & REES, LLP 

1900 West Loop South, Suite 1000 

Houston, TX 77027 

Andrew T. McKinney IV 

D. Douglas Mena 

LITCHFIELD CA vo LLP 

One Riverway, Suite 1000 

Houston, TX 77056 

Jerry B. Dozier 

LAW OFFICE OF JERRY B. DOZIER 

2318 Koster Road 

Alvin, TX 77511 

Russell S. Post 

Beck Redden LLP 

1221 McKinney, Suite 4500 

Houston, TX 77010 

Justin Gilbert 

GILBERT & FUREY 

222 North Velasco Street 

Angleton, TX 77515 

/S/ Jeffrey L. Diamond 

Ann E. Knight 

Exhibit B
·HI I 

Exhibit B
CAUSE NO. 75576-CV 

TYLER LEE AND LEIGH Al~ LEE 

INDIVIDUALLY AND AS NEXT FRIEND 

OF SYDNEY ROSE LEE, MINOR 

Plaintiff 

VS. 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

BERKEL & COMPANY CONTRACTORS, § 

INC., MAXIM CRANE WORKS, L.P., DIXON § 

EQUIPMENT SERVICES, INC., FLOYD § 

DIXON, ISAAC DOLAN, JAMES DAVIDSON § 

ANDREW BENNETT, Aj"D LINK-BELT § 

CONSTRUCTION EQUIPMENT CO. § 

Defendants 

§ 

§ 

JUDGMENT 

IN THE DISTRICT COURT OF 

BRAZORIA COUNTY, TEXAS 

149TH JUDICIAL DISTRICT 

On April 20th, 2015, the Court called this case for trial. All parties appeared in person and 

through their respective attorneys, and announced ready for trial. The Court summoned a jury 

panel and a qualified jury of twelve (plus two alternates) was sworn to be the jury and that jury, 

together with the Court, proceeded to hear the evidence with that jury retiring to consider the 

verdict and thereafter returning its verdict into open court. 

MAXIM CRANE WORKS, L.P. and JAMES DAVIDSON (collectively "MAXIM") 

filed a cross action against BERKEL & COMPANY CONTRACTORS, INC., ("BERKEL") 

on or about June 12, 2014, for breach of contract. MAXIM'S cross action was based upon the 

Bare Rental Agreement between it and BERKEL. At the Jury Charge Conference, MAXIM 

requested that a Breach of Contract question be submitted to the jury for consideration, but the 

submission of same was objected to by BERKEL and sustained by the Court. A Breach of 

Contract question was not submitted to the jury in the Court's Charge. 

The jury returned a verdict that found both defendants negligent. In the Charge submitted 

to the jury by the Court, MAXIM was assessed 10% responsible, and BERKEL was assessed 

Exhibit B
90% responsible, in the negligence/liability questions. The Jury also found for the Plaintiffs in 

the damages questions contained in the court's Jury Charge. 

Whether MAXIM was entitled to reimbursement of its defense costs had previously 

been submitted to the court for consideration via BERKEL'S Motion for Summary Judgment. 

MAXIM filed responsive pleadings to BERKEL'S Motion and BERKEL, in tum filed a Reply 

to same. On February 24, 2015, the Court issued an Order denying BERKEL'S Motion. 

At the Charge Conference, BERKEL argued and the Court concluded, that MAXIM'S 

cross claim should not be couched in terms of breach of contract, but instead was a question of 

law to be decided pursuant to Chapter 151 of the Texas Insurance Code (the Texas AntiIndemnity Act). Accordingly, both BERKEL and MAXIM agreed that MAXIM'S defense 

fees, costs and expenses should be submitted to the court for consideration outside the presence 

of the jury and the same was submitted to the judge via sworn testimony on May 6th, 2015. 

THEREFORE, THE COURT ORDERS THAT MAXIM'S claim for 

reimbursement of its defense fees, costs and expenses is governed by Chapter 151 of the Texas 

Insurance Code (the Texas Anti-Indemnity Act) and by the Bare Rental Agreement entered 

into by MAXIM and BERKEL, and is a question oflaw for the court. 

THEREFORE, THE COURT FURTHER ORDERS THAT MAXIM'S defense 

fees, costs and expenses are as follows: 

Attorney's fees-- $327,000.00; 

Expert witness expenses/costs-- $121,800.00; 

Miscellaneous expenses!costs-- $30,000.00; and 

Trial expenses/costs-- $41,695.00 

TOTAL DEFENSE FEES, COSTS Al~D EXPENSES $540,495.00 

The COURT ADDITIONALLY ORDERS that pursuant to the jury's findings as to the 

negligence questions in the Court's Jury Charge, the Bare Rental Agreement between BERKEL 

Exhibit B
and MAXIM, and Chapter 151 of The Texas Insurance Code, BERKEL is to reimburse Maxim 

90% of MAXIM'S TOTAL DEFENSE FEES/EXPENSES/COSTS, which amounts to 

$486,445.50. 

The COURT ADDITIONALLY ORDERS that pursuant to its decision(s) regarding 

BERKEL'S request for relief under the Texas Workers' Compensation Act's bar to suit, 

MAXIM'S claim for indemnity is governed by the Bare Rental Agreement entered into by 

MAXIM and BERKEL, and Chapter 151.103 of the Texas Insurance Code (the Texas AntiIndemnity Act), and is a question oflaw for the court. 

Accordingly, the COURT ORDERS that pursuant to the jury's findings as to the 

negligence and damages questions in the Court's Jury Charge, the Bare Rental Agreement 

between BERKEL and MAXIM, and Chapter 151.103 of The Texas Insurance Code, BERKEL 

is to indemnify and pay Maxim the sum of $3,444,300.60, which is the amount of the verdict the 

jury returned against Maxim. 

THE COURT DENIES an further relief not granted in this judgment. 

SIGNED this ___ day ofJune, 2015. 

HONOR".BLE JUDGE TERF..1 HOLDER 

Exhibit B
CAUSE NO. 75576-CV

TYLER LEE AND LEIGH ANN LEE,

INDIVIDUALLY AND AS NEXT 

FRIEND OF SYDNEY ROSE LEE, 

MINOR

Plaintiffs

§

§

§

§

§

§

IN THE DISTRICT COURT

v.

§

§

§

BRAZORIA COUNTY, TEXAS

BERKEL & COMPANY 

CONTRACTORS, INC., MAXIM 

CRANE WORKS, L.P., DIXON 

EQUIPMENT SERVICES, INC., FLOYD 

DIXON, ISAAC DOLAN, JAMES 

DAVIDSON, ANDREW BENNETT, 

AND LINK-BELT CONSTRUCTION 

EQUIPMENT CO.

Defendants

§

§

§

§

§

§

§

§

§

§ 149TH JUDICIAL DISTRICT

NOTICE OF ORAL HEARING 

 PLEASE TAKE NOTICE that Berkel & Company Contractors, Inc.’s Amended 

Motion for New Trial and Motion for Remittitur has been set for Monday, August 31, 

2015 at 9:00 a.m. in the 149th District Court, Brazoria County, Texas. 

Respectfully submitted, 

/s/ Thomas C. Wright 

Thomas C. Wright 

State Bar No. 22059400 

Jessica Z. Barger 

State Bar No. 24032706 

Garrett A. Gibson

State Bar No. 24069024 

WRIGHT & CLOSE, LLP 

One Riverway, Suite 2200

Houston, TX 77056

Filed for Record

7/17/2015 1:44:05 PM

Rhonda Barchak, District Clerk

Brazoria County, Texas

75576-CV

Kelley Hanson, Deputy

Exhibit C
713-572-4321 

713-572-4320 (fax) 

wright@wrightclose.com 

barger@wrightclose.com 

gibson@wrightclose.com 

ATTORNEYS FOR DEFENDANTS 

BERKEL & COMPANY CONTRACTORS, 

INC AND ANDREW BENNETT 

Exhibit C
CERTIFICATE OF SERVICE 

I hereby certify that a true and correct copy of this document was served on all 

counsel of record in this case, identified below, on July 17, 2015, electronically through 

the electronic filing manager and or via facsimile in compliance with the Texas Rules of 

Civil Procedure:

Kurt B. Arnold

M. Paul Skrabanek

ARNOLD & ITKIN LLP

6009 Memorial Drive

Houston, TX 77007

713-222-3850 (fax)

e-service@arnolditkin.com

Charles “Chuck” L. Clay, Jr.

CHUCK CLAY & ASSOCIATES

225 Peachtree Street, N.E., Suite 1700

Atlanta, GA 30303

Chuck@chuckclay.com

Ann E. Knight

J DIAMOND AND ASSOCIATES

PLLC

1010 N. San Jacinto

Houston, TX 77002

713-227-6801 (fax)

ann@jdiamondandassociates.com

John D. Dwyer

GORDON & REES LLP

633 West Fifth street, 52nd Floor

Los Angeles, CA 90071

213-680-4470 (fax)

Steven D. Selbe

GORDON & REES, LLP

1900 West Loop South, Suite 1000

Houston, TX 77027

713-961-3938 (fax)

sselbe@gordonrees.com

Thomas C. Wright 

Thomas C. Wright 

Exhibit C