Conoco, Inc. v. Pamela D. Brown, Individually and as the Duly Appointed Administrator of the Estate of Kenneth R. Brown--Appeal from 111th Judicial District Court of Webb County

MEMORANDUM OPINION
No. 04-02-00336-CV
CONOCO, Inc.,
Appellant
v.
Pamela BROWN, Individually and as the
Duly Appointed Administrator of the Estate of Kenneth R. Brown,
Appellee
From the 111th Judicial District Court, Webb County
Trial Court No. 98-CVT-01280-D2
Honorable Raul Vasquez, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: October 8, 2003

REVERSED AND RENDERED

Conoco appeals the trial court's judgment in favor of Pamela Brown for damages as a result of the death of her husband, Kenneth R. Brown. Because there is legally insufficient evidence to support the jury's finding that Conoco controlled the manner in which Brown performed his work, we reverse the trial court's judgment and render judgment in Conoco's favor.

It is undisputed that Conoco contracted with Ferguson Beauregard to supply and help install a plunger-lift system on its Rosa V. Benavides F-68 gas well. On August 19, 1998, Jay Jay Well Service, Inc. installed portions of the system: the lubricator, the catcher, the nipple, the ball valve, and the bull plug. Brown, a Ferguson Beauregard employee, completed the installation on August 21, 1998, by dropping the plunger into the well. While working on the well on August 24, 1998, to ensure its operation after the installation of the system, Brown was fatally injured. His widow, Pamela Brown, individually and as the administrator of her husband's estate, filed this suit and recovered judgment against Conoco. Conoco appealed, arguing there is no evidence to support the jury's finding that "Conoco, Inc. exercise[d] or retain[ed] some control over the manner in which the work was performed ...."

Conoco is not liable for Brown's death unless it " exercise[d] or retain[ed] some control over the manner in which the work is performed, other than the right to order the work to start or stop or to inspect progress or receive reports ...." Tex. Civ. Prac. & Rem. Code Ann. 95.003 (Vernon 1997); see Francis v. Coastal Oil & Gas Corp., No. 01-01-00457-CV, 2003 WL 21233564 (Tex. App.-Houston [1st Dist.] May 29, 2003, no pet.). The right to control may be proved "by evidence that the premises owner actually exercised control over the manner in which the independent contractor's work was performed." Dow Chem. Co. v. Bright, 89 S.W.3d 602, 606 (Tex. 2002). (1) The degree of control retained must be more than a mere "'general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations.'" Koch Ref. Co. v. Chapa, 11 S.W.3d 153, 155 (Tex. 1999) (quoting Restatement (Second) of Torts 414 cmt. c (1965)). In other words, the right to control must extend to the "operative detail" of the contractor's work. Koch Ref. Co., 11 S.W.3d at 155-56; Victoria Elec. Co-op., Inc. v. Williams, 100 S.W.3d 323, 326 (Tex. App.-San Antonio 2002, pet. denied). Moreover, there must be a nexus between the control actually exercised and the resulting injury. Dow Chem., 89 S.W.2d at 606.

Conoco argues that Brown failed to produce legally sufficient evidence that it exercised actual control over Brown's work in connection with the installation of the plunger-lift system. Brown maintains that Conoco controlled the operative detail of Brown's work by: (1) improperly designing the system; (2) aiding in Brown's installation of the plunger; (3) allowing the system to be improperly installed; and (4) requiring Brown to climb on the well without proper safety equipment. We disagree.

In support of her argument that Conoco improperly designed the system, Brown points to the testimony of Ron Britton, a registered professional petroleum engineer, that Conoco's engineers likely participated in the design of the plunger-lift system. According to Britton, the engineers would have provided Ferguson Beauregard with the information necessary to ensure that Ferguson Beauregard's design would meet Conoco's needs at the well. In support of her argument that Conoco assisted Brown in installing the system, Brown points to the testimony of Orlando Navarro, a production supervisor for Conoco, that Roel Benavides, the Conoco production specialist, told him that Benavides and Brown installed the plunger together on August 21, 1998. (2) Brown also points to the testimony of Ron Britton, who testified that, based upon his review of the depositions of Navarro and Benavides, Benavides assisted Brown in installing the plunger. However, even if we assume Conoco helped design and install the system, this is not evidence that Conoco actually controlled the operative detail of Brown's work. See Koch Ref., 11 S.W.3d at 155; Victoria Elec., 100 S.W.3d 323 at 326.

In support of her argument that Conoco allowed the system to be improperly installed, Brown points to the testimony of Gabriel Perez, one of the Jay Jay employees who installed portions of the plunger-lift system, that vent lines associated with the system were tightened by Jay Jay but not tied to the well. Perez was not sure why Conoco chose to not have the vent lines tied. Matthew Elmer, a Conoco operation and services manager, confirmed that the lines were not tied and explained that the same procedure was followed in a "handful" of other wells. At trial, Brown argued that Conoco's failure to require that the vent lines be tied created the circumstance leading to the fatal injury. However, the fact that Conoco did not require the vent lines to be tied is not evidence that Conoco controlled Brown's work on the date of the accident. See Koch Ref., 11 S.W.3d at 155.

In support of her argument that Conoco required Brown to climb on the well without proper safety equipment, Brown points to the testimony of several witnesses that, despite Conoco's safety instructions to the contrary, Conoco's independent contractors would occasionally climb wells without proper safety equipment. Benavides confirmed that because Brown did not have a manlift on the day of the accident, he would have had to have climbed the well against Conoco's safety instructions. However, the contractual agreement between Conoco and Ferguson Beauregard required Ferguson Beauregard's employees to adhere to Conoco's safety guidelines. Cf. Koch Ref., 11 S.W.3d at 156 (employer who requires an independent contractor to follow safety guidelines owes a mere "'duty that any safety requirements and procedures it promulgated did not unreasonably increase, rather than decrease, the probability and severity of injury'") (quoting Hoechst-Celanese Corp v. Mendez, 967 S.W.2d 354, 358 (Tex. 1998)).

At most, the evidence upon which Brown relies to support the jury's control finding merely reflects Conoco's general supervisory right to control the installation of the plunger-lift system, which does not trigger liability. See Victoria Elec., 100 S.W.3d 323 at 328. Therefore, viewing "the evidence in a light that tends to support the finding of the disputed facts and disregard[ing] all evidence and inferences to the contrary[,]" we conclude that there is legally insufficient evidence to support the jury's finding that Conoco exercised actual control over Brown's work activity. See Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 782 (Tex. 2001). We therefore reverse the trial court's judgment and render a take nothing judgment in Conoco's favor.

Sarah B. Duncan, Justice

1. Control may also be established "by evidence of a contractual agreement that explicitly assigns the premises owner a right to control[.]" Dow Chem. Co. v. Bright, 89 S.W.3d 602, 606 (Tex. 2002). However, the Services Contract between Ferguson Beauregard and Conoco assigned Ferguson Beauregard exclusive direction and control of "the method or manner in which [Ferguson Beauregard] perform[ed] [its] Work[,]" thereby contractually divesting Conoco of any control over Brown's work activities.

2. When presented with his deposition testimony at trial, Navarro testified that he did not know who installed the plunger.