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Barrett v. Berry Contracting, L.P.

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

October 3, 2019

DAVID BARRETT, Appellant,
v.
BERRY CONTRACTING, L.P., ELITE PIPING & CIVIL, LTD., AND GOVIND DEVELOPMENT, LLC., Appellees.

          On appeal from the County Court at Law No. 1 of Nueces County, Texas.

          Before Chief Justice Contreras and Justices Benavides and Longoria

          MEMORANDUM OPINION

          NORA L. LONGORIA JUSTICE

         After 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.

         I. Background

         The 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.

         On July 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).

         On 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.

         On 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.

         On 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.

         On June 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 limitations."

         On June 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.

         On 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 ensued.

         II. "Provide" ...


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