## 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

### 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. (SeeEx. 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. (SeeEx. 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 itsclaim for relief against Berkel was dependent on the outcome of the argumentsBerkel 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. (SeeEx. C, Notice of Hearing) Berkel’s notice of appeal would not be due until September 15, 2015. Since Maxim’s claims are contingent – atleast 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 OFCONFERENCE 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. Barger07/01/2015 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 thejury charge, thejury made findings that the Court received, filed and entered as record on May 6, 2015. The questions submitted to the jury and thejury'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.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 ofcourt, including costs incutted in enforcement and collection. The Court orders that Pla.intiffLeigh 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 $41,600.0007/01/2015 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 ofMaxim's Defense Fees, Costs, and Expenses ofand 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 ofall 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

3CAUSE 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 underadvisement; thus, the reason why Maxim has fIled this Supplemental Motion for Entry of Judgment on Ma.x:im's Cross Action AgainstBerkel. 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 ofJudgment." The Original Motion for Entry ofJudgment 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 ofthe 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 addedJIn 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 ofLessee (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: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 ofan employee ofthe 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 ofMaxim, 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.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 thejury 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 DavidsonCERTIFICATE 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 CAvo 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

# ·HI ICAUSE 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 thejury in the Court's Charge. Thejury 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 assessed90% 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 ofbreach 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 ofthe 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 ofits 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 BERKELand 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 ofthe 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

### 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. ’sAmended 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

### 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

### 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