Court of Appeals of Texas, First District, Houston
JACOBS FIELD SERVICES NORTH AMERICA, INC., JACOBS ENGINEERING GROUP, INC., AND JACOBS ENGINEERING, INC., Appellants
TROY WILLEFORD, Appellee
Appeal from the 127th District Court Harris County, Texas
Trial Court Case No. 2015-65988
consists of Justices Bland, Lloyd, and Caughey.
Russell Lloyd Justice
interlocutory appeal, Jacobs Field Services North America,
Inc., Jacobs Engineering Group, Inc., and Jacobs Engineering,
Inc. (collectively "Jacobs") appeal from the trial
court's order denying its motion to dismiss Troy
Willeford's claims of negligence, gross negligence,
strict liability, and product defect against them. Jacobs
contends that the trial court erred in denying its motion to
dismiss because the certificate of merit filed with
Willeford's petition fails to meet the requirements of
section 150.002 of the Texas Civil Practice and Remedies
Code. See Tex. Civ. Prac. & Rem. Code Ann.
§ 150.002 (West 2011). Jacobs also asserts that its
motion to dismiss was not untimely and that the trial court
was permitted to consider extrinsic evidence in ruling on its
motion. We reverse and remand.
and Procedural Background
sued Jacobs, as well as numerous other entities not parties
to this appeal,  for injuries he allegedly sustained after
responding to the scene of a workplace accident involving his
co-worker, Maurice Ware, at the Far East Coker Unit
("FECU") of the ExxonMobil refinery in Baton Rouge,
Louisiana. Willeford asserted claims against Jacobs
for negligence, gross negligence, strict liability, and
amended petition, under the section entitled "Factual
Allegations Regarding the Role of Each Defendant, "
Willeford alleged, in pertinent part:
4.9 Jacobs Engineering, Inc. Upon
information and belief, Jacobs Engineering, Inc. completed
the detailed design for the project to modify the Delayed
Coker Unit in February 2007 to reduce the risks associated
with manual unheading of the top heads. The factual support
for this allegation is found in Mosenteen exhibit 2, p. 1,
¶ 2, as well as in Mosenteen's testimony:
Deposition of Jon Mosenteen:
Q: And was Jacobs Engineering ultimately in charge of the
design of that system in 2007 and '8?
A: To the best of my knowledge, Jacobs Engineering was
responsible for the overall design but they had some
subcontractors, I believe who were assisting in the-in the
design aspect of it.
. . . .
4.10 Jacobs Field Services North America,
Inc. Upon information and belief, Jacobs Field
Services North America, Inc. provided programming and HMI
configuration and was otherwise heavily involved in the
upgrade for the PLCs in the Far East Coker Unit in
2013. The factual support for this is found in
Mosenteen exhibit 5, pages 60-61 (ExxonMobil Global Services
Company procurement identifying Jacobs Engineering Group Inc.
and Jacobs Field Services North America Inc. as providing
requested work) and in Mosenteen's testimony:
Deposition of Jon Mosenteen:
A: Page 5 of 7 of what I believe is labeled Exhibit 2,
Question No. 5, Jacobs Engineering sought to have completed
the design programming of the PLC for the 2013 PLC upgrade
. . . .
Q: Detail design, what does that mean?
A: Well, the PLC is a series of, as best I can explain it, a
series of yes/no questions and so it's logic that gets
you to an end solution or an activity or permissi[on] for
something to work. Jacobs provided that programming, provided
that service to be able to do that project.
Q: Okay. Did Jacobs actually come on-site?
A: I believe they did.
Q: And so essentially, in Exxon's mind, Jacobs was
ultimately responsible for the correct programming of the PLC
and HMI, fair?
A: For the correct implementation of the programming, yes,
4.11 Jacobs Engineering Group, Inc. Upon
information and belief, Jacobs Engineering, Group, Inc.
provided programming and HMI configuration and was otherwise
heavily involved in the upgrade for the PLCs in the Far East
Coker Unit in 2013.
ExxonMobil procurement document referenced in Willeford's
amended petition identifies Jacobs's scope of work as
WORK REQUESTED: PROVIDE PROGRAMMING AND HMI CONFIGURATION FOR
THE NEW UPGRADED PLCS FOR THE FAR EAST COKER CUTTING
CONSOLES. FOUR NEW PLCS AND HMIS WILL BE INSTALLED ONE
FOR EACH DRUM, ALSO SITE ACCEPTANCE AND START UP SERVICES
WILL BE PROVIDED. PROVIDE INTOOLS WIRING.
amended petition, Willeford attached a certificate of merit
affidavit of Gregg S. Perkin, a registered professional
engineer in the field of mechanical engineering. A copy of
Perkin's curriculum vitae and a list of the materials he
reviewed in preparing the certificate were attached to his
affidavit, Perkin stated that he has a Bachelor of Science in
Mechanical Engineering and that he is a registered
professional engineer in the field of mechanical engineering
in the State of Texas. Perkin's affidavit further stated,
in relevant part:
In mid-1986, I began my work as an independent professional
Mechanical Engineering consultant.
Since 1995, I have been employed by [Engineering Partners
International] as an independent engineering consultant and
Professional Engineer in the areas of detailed safety
analysis of highly complex process units and systems within
the processing industries and risk assessment for various
industries. In these regards, and over the course of my
professional career, I have actively worked in the areas of
equipment design, manufacture, fabrication, assembly,
construction, testing, operation, maintenance and
As one (1) of EPI's Principal Engineers, I have often
been actively engaged in providing design engineering and
independent engineering reviews and analysis. I have been
independently retained to conduct product design analysis,
design equipment, failure analysis, risk and hazard analysis,
and provide other ...