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Click here for the full text of this decision FACTS:On Sept. 10, 2001, Annie Hopkins, a customer in a Randall’s Food Markets Inc. (Randall’s) grocery store that had been undergoing remodeling, sustained an injury after slipping and falling in the store. Hopkins brought suit for negligence against Randall’s and R S Clark Construction Inc., the general contractor for the remodeling job. At the time of the remodeling, Clark and Randall’s had entered into an agreement with Cabo Construction Inc. for Cabo to serve as a subcontractor (the Clark-Cabo agreement). After Hopkins sued them, Clark and Randall’s brought a third-party petition against Cabo seeking contribution or complete indemnity for the claims alleged by Hopkins. Clark and Randall’s denied their own negligence and pled that Cabo “is believed to have been the company that dug a trench in the Randalls store in question which is the trench that is the subject of this lawsuit.” Clark and Randall’s filed a joint motion for summary judgment seeking to enforce the indemnity provision in the Clark-Cabo agreement. They relied on Paragraph 4.6 of the agreement, which provided that Cabo would indemnify and hold harmless Randall’s and Clark against claims, damages, losses and expenses, including but not limited to attorneys’ fees arising out of or resulting from performance of Cabo’s work under the subcontract, provided that any such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property, but only to the extent caused by the negligent acts or omissions of Cabo. Cabo responded that the indemnity provision was unenforceable, because it did not pass the express-negligence test. The trial court granted the motion for summary judgment without stating its reasons. The trial court later severed the indemnity claim against Cabo. Cabo filed a motion for new trial, which the trial court denied. HOLDING:Reversed and remanded. Cabo, the court stated, argued that the indemnity provision did not expressly indemnify Clark and Randall’s for their own negligence and thus did not pass the express negligence test required for validity. Because indemnity provisions, the court stated, seek to shift the risk of one party’s future negligence to the other party, Texas imposes a fair notice requirement before enforcing such agreements. Under the express negligence doctrine, the court stated, an intent to indemnify one of the parties from the consequences of its own negligence must be stated specifically in the four corners of the document. The court then found that the indemnity provision at issue expressly stated that Cabo will indemnify Clark and Randall’s for claims arising from Cabo’s negligence, but it did not expressly state that Cabo will indemnify Clark and Randall’s for claims arising from their own negligence. Nevertheless, Clark and Randall’s rely on the language toward the end of the indemnity provision to show that Cabo must indemnify them for their negligence. Specifically, they rely on a proviso that states that Cabo will indemnify Clark and Randall’s for Cabo’s negligence, “but only to the extent caused by the negligent acts or omissions of the Subcontractor [Cabo], the Subcontractor’s Sub-subcontractors, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder.” Because the language Clark and Randall’s rely on is unclear as to who is indemnified and for what, the court found that the indemnity provision was ambiguous. Ambiguous indemnity provisions are unenforceable, the court stated. OPINION:Keyes, J.; Nuchia, Keyes and Higley, J.J.

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