Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the County Court at Law No. 1 of Nueces County,
Chief Justice Contreras and Justices Benavides and Longoria
L. LONGORIA JUSTICE
sustaining injuries while working at a refinery, appellant
David Barrett sued appellees Berry Contracting, LP (Berry),
Elite Piping & Civil, Ltd. (Elite), and Govind
Development, LLC (Govind). The trial court granted
Berry's and Elite's separate motions for summary
judgment. The trial court also granted Govind's motion to
dismiss Barrett's claims against it. By two issues,
Barrett asserts that the trial court erred by (1) granting
summary judgment in favor of Berry and Elite, and (2)
granting Govind's motion to dismiss. We affirm.
underlying facts are undisputed. Barrett was an employee of
Valero. On January 5, 2016, while he was working on
Valero's premises, the ground collapsed, causing him to
sink three to four feet into "superheated soil."
Barrett sustained severe burn injuries to both of his legs.
6, 2016, Barrett filed suit against BHP Engineering &
Contracting, L.P. (BHP) and Berry. Barrett did not include an
engineer's certificate of merit with the petition.
See Tex. Civ. Prac. & Rem. Code Ann. §
150.002 (listing the requirements for certificates of merit
and when they must be filed).
August 23, 2016, Barrett filed an amended petition, which
omitted BHP as a defendant but added Govind in its place.
Again, Barrett filed no certificate of merit. See
id. On February 1, 2017, Barrett filed a second amended
petition, this time omitting Govind and leaving Berry as the
only named defendant.
December 27, 2017, Barrett filed his third amended petition,
which reasserted his claims against Govind and added Elite as
a new defendant. Even though Barrett did not include a
certificate of merit, he acknowledged the applicable statute
and referenced § 150.002's near-limitations
exception, stating, "Plaintiff pleads and is prepared to
demonstrate that this filing is within ten (10) days of the
statute of limitations." See id. §
150.002(c). On January 28, 2018, Barrett filed an affidavit
from Wesley Goodwin, a professional engineer, and offered it
as his certificate of merit.
March 27, 2018, Elite filed a motion for summary judgment.
According to Elite, it was a subcontractor of Valero, the
general contractor. Elite asserted that Valero provided Elite
and Barrett with workers' compensation insurance. Thus,
as a subcontractor and deemed employee of Valero, Elite
argued that it was "entitled to the exclusive remedy
defense against the claims of Barrett." See
Tex. Lab. Code Ann. § 408.001(a) (explaining the
exclusive remedy defense available to subcontractors in
certain scenarios). On May 1, 2018, the trial court granted
Elite's motion for summary judgment.
4, 2018, Govind filed a motion to dismiss Barrett's
claims against it. Govind asserted that Barrett violated the
statute by failing to file a certificate of merit with the
first petition that named Govind as a defendant. See
Tex. Civ. Prac. & Rem. Code Ann. § 150.002. Govind
alternatively claimed that the statute required dismissal
because the affidavit by Goodwin was untimely and defective.
See id. Barrett filed a response to Govind's
motion, arguing that "it was not possible to obtain a
Certificate of Merit before the running of the statute of
15, 2018, Berry filed a motion for summary judgment that was
almost identical to Elite's motion for summary judgment.
Berry argued that it was a deemed employee of Valero because
Berry had a written contract with Valero to provide Berry
with workers' compensation insurance. Therefore, similar
to Elite, Berry asserted that it was entitled to the
exclusive remedy defense. See Tex. Lab. Code Ann.
§ 406.123(e). On August 15, 2018, the trial court held a
hearing and granted Berry's motion for summary judgment.
September 11, 2018, the trial court granted Govind's
motion to dismiss. On October 11, 2018, the trial court
signed an amended order, specifying that Barrett's claims
against Govind were dismissed without prejudice. This appeal