ZEM C.S.H.B. 961 75(R)BILL ANALYSIS


CIVIL PRACTICES
C.S.H.B. 961
By: Holzheauser, et al.
4-21-97
Committee Report (Substituted)


BACKGROUND 

Currently, the construction industry has a large number of agreements in
construction contracts that prevent owners and companies from being held
responsible for their own actions.  Owners on construction projects
require general contractors to assume liability for the owner's negligence
to the extent that general contractors are held liable for damages
resulting from accidents caused by owners.  When general contractors pass
this liability on to subcontractors, the subcontractor is then held liable
for damages even though the subcontractor might have been only minimally
involved in the accident.    

PURPOSE

H.B. 961, as substituted, provides that a company can indemnify others for
the company's own actions; prohibits indemnification for a company's sole
or gross negligence, willful misconduct, or fines assessed by governmental
entities; permits indemnification by a company for the death or bodily
injury of that company's employee, limited by general liability insurance;
provides that additional insured endorsements in liability insurance
policies are restricted to the liability assumed by a company under the
construction contract; and prevents waiver of its provisions by contract. 


RULEMAKING AUTHORITY

It is the committee's opinion that this bill does not expressly grant any
additional rulemaking authority to a state officer, department, agency or
institution. 


SECTION BY SECTION ANALYSIS

SECTION 1. Amends Title 6, Civil Practice and Remedies Code by adding
Chapter 145 as follows: 

CHAPTER 145.  INDEMNITY PROVISIONS IN CERTAIN AGREEMENTS RELATING TO REAL
PROPERTY 

 Sec. 145.001  Defines "Loss," "Real property," "Real property services,"
"Real    property services contract," and "Real property services
indemnity agreement." 

 Sec. 145.002  Provides the scope of the chapter's applicability.

Sec. 145.003 Provides that a real property services indemnification
agreement is void and unenforceable to the extent that it indemnifies a
person, that person's agent or employee or a person who is directly
responsible to that person, for sole negligence, gross negligence, willful
misconduct, or for fines or penalties assessed by a governmental entity. 

 Sec. 145.004  (a) Provides that a real property services agreement may
indemnify a    person for: 

  (1) a loss that arises from the acts or omissions of a person's or that
person's agent or contractor or employee; or 

 (2) subject to Secs. 145.003 and 145.005, a loss associated with bodily
injury or death of that person's employee, agent, or contractor, arising
from acts or omissions of the person to be indemnified. 

(b) Specifies that Sec. 145.004(a)(1) liability may not exceed the
percentage of responsibility for the harm caused by the person; defines
"percentage of responsibility." 

(c)  Provides that this section does not require a person to assume a
liability or obligation described by Subsection (a). 

Sec. 145.005  (a)  Provides that the indemnity of Sec. 145.004(a)(2) is
limited to the coverage and dollar limits of insurance that the person
providing the indemnity has agreed to provide under the real property
services agreement or to $500,000 if no coverage or dollar limits are
specified in the contract. 

(b)  Provides that additional insured endorsements to liability insurance
policies may not require coverage for liability other than the liability
assumed under the real property services contract or indemnity agreement. 

(c) Provides that additional insured endorsements are void if they impose
obligations greater than the indemnity obligations authorized in this
chapter. 

(d) Provides that requirements to provide insurance coverage in real
property services contracts or indemnity agreements are void to the extent
that the required insurance coverage exceeds the limitations of this
chapter. 

Sec. 145.006 Specifies that except as outlined in Sec. 145.005, the
Chapter does not affect the applicability, validity, or enforceability of
insurance contracts. 

Sec. 145.007 Limits application of the chapter; excludes indemnity
provisions in mineral agreement governed by Chapter 127, construction
contracts governed by Chapter 130, and indemnity  provisions contained in
financial or surety bond agreements unless they are directly related to
real property services. 

Sec. 145.008  Provides that Chapter provisions may not be waived.

SECTION 2.  Effective date:  September 1, 1997.

SECTION 3.  Applies prospectively; savings clause.

SECTION 4.  Emergency clause.


COMPARISON OF ORIGINAL TO SUBSTITUTE

The committee substitute makes the following changes:

1. Clarifies that the services referred to in Sec. 145.002 are "real
property services." 

2. Includes losses related to or arising out of an act or omission or
losses associated with bodily injury or death of "any person directly or
indirectly employed" by a person or the person's contractor or agent
obligated to make the indemnification within the circumstances in which
indemnification is permissible under Sec. 145.002 (a)(1) and (a)(2). 

3. Limits liability for indemnity under a real property services indemnity
agreement for losses associated with bodily injury or death to either the
coverage and dollar limits of insurance that the person has agreed to
provide or $500,000 if no coverage and dollar limits are specified in Sec.
145.005(a) rather than limiting losses to the lesser of the coverage and
dollar limits of insurance or the amount of liability insurance available
for purchase as was specified in the original bill.  

4. Clarifies that Sec. 145.005(b) - (d) apply to real property services
contracts as well as indemnity agreements. 

5. Adds a new Sec. 145.007 to exclude from application of the chapter
indemnity provisions in mineral agreements under Chapter 127, construction
contracts governed by Chapter 130, and indemnity provisions contained in
financial or surety bond agreements unless they are directly related to
real property services. 

6. Clarifies that the effective date applies to real property services
contracts as well as indemnity agreements.