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Click here for the full text of this decision FACTS:Gilbane Building Co. and Keystone Structural Concrete Ltd. contracted for Keystone to act as a subcontractor on a construction project that Gilbane was performing at Rice University. During construction, Victor Nava, an employee of Keystone, suffered an injury and brought suit alleging negligence against Gilbane. Nava settled his suit for $2 million, of which Admiral Insurance, Keystone’s primary carrier, paid the first million. Gilbane’s primary insurance carrier, Zurich, paid the second million of the settlement. After Nava’s settlement was paid, Gilbane filed suit against Keystone and Royal Insurance Co. of America, Keystone’s excess carrier, seeking to recover the million dollars it paid to settle Nava’s claim. In its third amended petition, and pertinent to this appeal, Gilbane asserted that Keystone was liable for: 1. breaching a contractual indemnity agreement in the Gilbane-Keystone contract; 2. breaching the contractual provision that required Keystone to provide insurance coverage of up to $6 million that would be primary to any coverage issued to Gilbane for any loss arising out of Keystone’s performance of the work under the contract; and 3. breaching the contractual requirement that Keystone verify that all construction equipment used was in a safe condition and that the work was performed in compliance with the applicable safety rules, regulations, codes, ordinances and statutes. Gilbane also sought reformation of its contract with Keystone if the trial court did not agree that the contract expressed a specific intent that Keystone provide Gilbane with liability coverage for negligence; and Gilbane contended that it was damaged when Keystone failed to timely inform it that Northern Insurance Co. had issued a policy to Keystone that would have covered Nava’s claim. Keystone filed a motion for partial summary judgment and a no-evidence motion for partial summary judgment. Gilbane filed a response. On July 18, 2005, the trial court granted summary judgment to Keystone as to all the allegations against Keystone asserted by Gilbane. Gilbane filed a motion for new trial or in the alternative a motion to modify judgment. The motion for new trial was overruled by operation of law. HOLDING:Affirmed. In its first issue on appeal, Gilbane argued that the trial court incorrectly granted Keystone’s summary judgment on the contractual indemnity claim asserted by Gilbane. Gilbane relied on the contractual indemnity provision found in the Gilbane-Keystone contract. Because indemnity provisions seek to shift the risk of one party’s future negligence to the other party, the court stated that Texas imposes a fair notice requirement before enforcing such agreements. The fair notice requirements are the express negligence doctrine and the conspicuousness requirement. 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 specifically stated in the four corners of the document.” The conspicuousness requirement mandates that “something must appear on the face of the [contract] to attract the attention of a reasonable person when he looks at it.” After reviewing the relevant contractual language, the court concluded that the contractual language did not meet the express negligence test, because it did not expressly provide that Keystone would indemnify Gilbane for Gilbane’s own negligence. Thus, the contractual indemnity provision was unenforceable. To allow Gilbane, the court stated, to litigate the question of who caused Nava’s injuries post-settlement and without a valid indemnity agreement “retards rather than advances the policy of preventing satellite litigation regarding interpretation of indemnity contracts.” In its second issue on appeal, Gilbane argued that the trial court incorrectly granted summary judgment on its breach of contract cause of action. Specifically, Gilbane contended that Keystone breached the Gilbane-Keystone contract by failing to require its excess carrier, Royal Insurance, to provide coverage that was primary to the policy issued by Zurich to Gilbane. But the court also rejected that point of error, finding that although the insurance specifications require Keystone to maintain an umbrella policy in the amount of $5 million, the contract did not specify the priorities between Keystone’s insurance and any other insurance. In its third issue on appeal, the court stated, Gilbane argued that the trial court erred by refusing to reform the contract to reflect the parties’ intent that Keystone would provide “insurance coverage up to at least the sum of $6 million that was primary to any insurance policy issued directly to Gilbane for losses arising out of the work performed by Keystone.” Equity has jurisdiction to reform written instruments in cases of mutual mistake, the court stated, but a written contract will not be reformed in equity because of a mistake, in the absence of fraud, unless it is a mutual mistake. The court found that Gilbane presented no evidence of a mutual mistake. Thus, the court held that the trial court properly granted summary judgment on Gilbane’s contract reformation argument. The court overruled two other of Gilbane’s causes of action: another breach of contract claim and a claim that Keystone failed to uphold a duty to advise Gilbane of the existence of the Northern Insurance Co. of New York policy under which Gilbane was an additional insured. OPINION:Keyes, J.; Nuchia, Keyes, and Higley, JJ.

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