Preview
FILED - 5/5/2023 5:52 PM
2021-DCL-05129 / 75380941
LAURA PEREZ-REYES
Cameron County District Clerk
By Vilma Garcia Deputy Clerk
CAUSE NO. 2021-DCL-05129
DEIDRICK DIAZ § IN THE DISTRICT COURT
§
vs. §
§
VANGUARD RESOURCES INC., §
THYSSENKRUPP ELEVATOR §
CORPORATION AND TK ELEVATOR § 445th JUDICIAL DISTRICT
CORPORATION, ET AL. §
§
vs. §
§
VALLEY BAPTIST MEDICAL §
CENTER—HARLINGEN §
§
vs. §
§
G4S SECURE SOLUTIONS § CAMERON COUNTY, TEXAS
(USA), INC. §
THIRD-PARTY DEFENDANT AND COUNTER-PLAINTIFF VALLEY BAPTIST
MEDICAL CENTER—HARLINGEN’S FIRST AMENDED ORIGINAL ANSWER
AND RESPONSIVE PLEADING TO VANGUARD RESOURCES, INC. AND
THYSSENKRUPP ELEVATOR CORP.’S THIRD-PARTY PETITIONS
AND FIRST AMENDED COUNTER-PETITION
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, VHS HARLINGEN HOSPITAL COMPANY, LLC D/B/A VALLEY
BAPTIST MEDICAL CENTER—HARLINGEN, Third Party Defendant and Counter-Plaintiff
and makes and files this its Original Answer and Responsive Pleading, and Counter-Petition in
Response to Third-Party Plaintiff VANGUARD RESOURCES, INC.’s Third-Party Petition and
THYSSENKRUPP ELEVATOR CORPORATION’s First Amended Third-Party Petition in the
above-entitled and numbered cause (hereafter sometimes referred to as VBMC, Third-Party
Defendant, or Counter-Plaintiff), and any further amendments and supplements thereto, and
would respectfully show the Court the following:
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[WH/Ofc] V/V-1165/Pleadings/VBMC/VBMC’s 1st Amend. Ans. To Vanguard and TK’s 3rd Pty Petitions
I. Factual Background
1. VBMC is a hospital that employed plaintiff Deidrick Diaz at the time of the events giving
rise to this litigation.
2. VBMC is also a workers compensation subscriber and plaintiff Diaz accepted workers’
compensation benefits and did receive or is receiving said benefits.
3. The accident and elevator malfunction occurred in the hospital’s South Tower when
plaintiff Diaz was entering the hospital to report for work. Plaintiff Diaz was taking the
elevator in question to his place of employment when it became stuck between the first
and second floors near the South Tower entrance.
4. Plaintiff Diaz was a licensee at the time of the accident since he had not yet assumed his
job duties and had permission to ingress and egress his place of employment.
5. The contract between Third-Party Plaintiff Vanguard Resources and VBMC was attached
as Exhibit 1 to Vanguard’s Third-Party Petition. In accordance with Tex. R. Civ. P. 59,
VBMC incorporates that contract and the below provisions of that agreement into this
first amended original answer, responsive pleading, and first amended counter-petition.
The contract between the hospital and Vanguard contains a stand-alone insurance
paragraph, paragraph number seven, which provides as follows:
7. INSURANCE.
Company shall secure and maintain at all times during the Term, at Company’s
sole expense, general liability insurance covering Company, and Company’s Staff,
with a carrier licensed to do business in the State and having at least an “A” best
rating, at the following limits:
Commercial General Liability covering bodily injury and property damage to third
parties and including Products/Completed Operations, Blanket Contractual
Liability, and Personal/Advertising Injury:
$1,000,000 per occurrence; $2,000,000 general aggregate
and
$1,000,000 per occurrence Personal/Advertising Injury
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$2,000,000 Products/Completed Operations aggregate
Such insurance shall name Hospital as an additional insured and shall not be
cancelable except upon 30 days’ prior written notice to Hospital. Such coverage
shall be primary and non-contributory. Company upon request shall annually
provide Hospital a certificate of insurance evidencing such coverage and coverage
extensions.
See Exhibit 1, Defendant and Third-Party Plaintiff Vanguard Resources, Inc.’s Third-Party
Petition Against VHS Harlingen Hospital Company, LLC d/b/a Valley Baptist Medical
Center—Harlingen, paragraph 7, at page 5.
6. The independent additional insurance provision of the aforementioned contract obligates
Vanguard to secure and maintain a $1,000,000 per occurrence Commercial General
Liability Insurance Policy covering personal injuries like those claimed by Mr. Diaz.
The additional insurance provision requires that such insurance name the hospital as an
additional insured and be primary and non-contributory. This additional insurance
obligation that Vanguard is obligated to secure and maintain, is a stand-alone provision
and it is not linked to the obligation to indemnify, which is the basis for Vanguard’s
lawsuit against VBMC. The hospital requested a copy of the certificate of insurance
evidencing the aforementioned coverage and Vanguard failed to produce and provide
such confirmation. Failure of Vanguard to produce and provide VBMC with such an
additional insurance obligation is a material breach of Vanguard’s contractual obligation.
There is no justifiable or legal excuse for Vanguard not making VBMC an additional
insured under Vanguard’s CGL policy. VBMC is entitled to actual and consequential
damages resulting from Vanguard not performing this contractual obligation.
7. The indemnity provision cited by Third-Party Plaintiff Vanguard provides as follows:
11. INDEMNIFICATION. Hospital hereby agrees to indemnify, protect,
defend and hold the Company and its officers, directors, employees agents, and
representatives (collectively the “Company Parties”) harmless from and against any
and all liabilities, claims, causes of action, fines, damages, suits and expenses,
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[WH/Ofc] V/V-1165/Pleadings/VBMC/VBMC’s 1st Amend. Ans. To Vanguard and TK’s 3rd Pty Petitions
including expert fees (collectively, the “Claims”), arising from the acts or
omissions of Hospital hereunder including those which arise out of, are related to,
or are caused by the services performed by Company hereunder except where
caused by the negligence, in whole or in part, or the gross negligence of the
Company Parties. If any action or proceeding shall be brought against the Company
Parties, or any of them, by reason of any such Claim, Hospital, upon notice from
Company, shall provide a separate defense to same at Hospital’s sole cost and
expense by counsel reasonably satisfactory to Company.
Company hereby agrees to indemnify, protect, defend and hold the Hospital and its
officers, directors, employees, agents, and representatives (collectively the “Hospital
Parties”) harmless from and against any and all Claims, arising from the acts or
omissions of Company related to, or are caused by the services performed by
Company hereunder except where caused by the negligence, in whole or in part, or
the gross negligence of the Hospital Parties. If any action or proceeding shall be
brought against the Hospital Parties, or any of them, by reason of any such Claim,
Company, upon notice from Hospital, shall provide a separate defense to same at
Company’s sole cost and expense by counsel as agreed by Hospital.
See Exhibit 1, Defendant and Third-Party Plaintiff Vanguard Resources, Inc.’s Third-
Party Petition Against VHS Harlingen Hospital Company, LLC d/b/a Valley Baptist
Medical Center—Harlingen, paragraph 11, at pages 6 and 7 (bold and italics added).
8. The indemnity obligation of VBMC is limited to “acts or omissions of [the] Hospital.”
Id. Plaintiff Deidrick Diaz was injured due to an elevator mis-leveling issue and not due
to any act or omission of VBMC. Additionally, Deidrick Diaz was not acting in the
course and scope of his employment at or about the time of the events giving rise to this
lawsuit. Employee Diaz was on hospital premises with permission to come and go from
the unit at which he worked. When coming to and going from his place of employment,
Deidrick Diaz was not performing job-related duties for the hospital. Deidrick Diaz
would have been a licensee and was not in the course and scope of his employment.
Therefore, his actions in deciding to take directions from the elevator company or the
security officer to jump out of the elevator did not occur during one of his hospital shifts.
Plaintiff Diaz’s actions are not attributable to the hospital and no contractual duty of
indemnity is owed to Vanguard.
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[WH/Ofc] V/V-1165/Pleadings/VBMC/VBMC’s 1st Amend. Ans. To Vanguard and TK’s 3rd Pty Petitions
9. VBMC was the owner and occupier of the hospital and as such, any acts or omissions of
the hospital would be adjudged by premises liability law. Because Deidrick Diaz was
entering the hospital to gain ingress and egress to his place of employment, Mr. Diaz
would have been a licensee at the time of the complained of incident and not an invitee.
As such, the hospital would have only been responsible for any act or omission as to Mr.
Diaz if it had actual knowledge that the elevator in question maintained by TK Elevator
Corporation was unsafe. The hospital had no foreknowledge that the elevator in question
would malfunction or was otherwise unfit for use by Diaz or the general public;
therefore, there is no act or omission on the part of the hospital that merits
indemnification.
10. The indemnification paragraph does not require the hospital to indemnify Vanguard
Resources, Inc. where the claim or causes of action were “caused by the negligence, in
whole or in part” of Vanguard or its employees. Both plaintiff Diaz and ThyssenKrupp
and TK Elevator Corporation are making claims against Vanguard Resources, Inc.
Assuming there is any merit to these claims, then no indemnity is owed by VBMC under
the terms of the indemnity agreement to Vanguard and it would be premature to
indemnify and provide a defense to Vanguard Resources Inc. until such time as the
factfinder makes a liability determination in this case.
11. To the extent any liability allegations against Vanguard are shown to be valid, then
Vanguard Resources, Inc. owes VBMC a duty to indemnify the hospital by counsel
agreed upon by the hospital.
12. VBMC entered into The Platinum Premier Service Agreement, attached hereto and
incorporated herein by reference as Exhibit A, with ThyssenKrupp Elevator Corporation.
This agreement provided for a comprehensive maintenance program designed to
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[WH/Ofc] V/V-1165/Pleadings/VBMC/VBMC’s 1st Amend. Ans. To Vanguard and TK’s 3rd Pty Petitions
maximize the performance, safety, and life span of the hospital’s elevator equipment.
The Platinum Premier Service Agreement Preventative Maintenance Program included
the aforementioned company examining VBMC’s elevators to insure optimum operation
including lubrication and adjustment of safety mechanisms, drives, motors, governors,
sheaves, and control and landing positioning systems. See Exhibit A, page 4 of 13.
13. ThyssenKrupp Elevator Corporation contracted to provide full coverage parts repair
and/or replacement for all components requiring service or repair due to normal wear.
They also warranted that ThyssenKrupp Elevator Corporation maintained a
comprehensive parts inventory to support its operations and meet the quality standards of
ThyssenKrupp Elevator Corporation. ThyssenKrupp Elevator Corporation warranted
that to ensure “Quality Assurance,” its technicians utilized the latest industry methods
and technology available for the hospital’s specific brand of elevator and that behind its
onsite technicians was a “team devoted to elevator excellence” and that its technicians
were ”supported around the clock by a team of engineers and field support experts.” See
Exhibit A, page 4 of 13. With all these assurances in place, the hospital justifiably relied
on ThyssenKrupp’s expertise and affirmative representations that it would undertake
positive steps to ensure the hospital’s elevators operated safely and efficiently.
14. In its pleadings at paragraph 12 of its First Amended Third Party Petition, ThyssenKrupp
Elevator Corporation asserts that the hospital, as the owner of the subject elevator, had
the duty to make proper repairs and modifications and modernizations to the elevator as
suggested and proposed by ThyssenKrupp Elevator Corporation. VBMC denies it was
obligated to make such repairs, modifications, or modernizations in the context of the
facts giving rise to this dispute. This assertion by ThyssenKrupp contradicts the plain
wording of The Platinum Premier Service Agreement where ThyssenKrupp in fact
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[WH/Ofc] V/V-1165/Pleadings/VBMC/VBMC’s 1st Amend. Ans. To Vanguard and TK’s 3rd Pty Petitions
clearly assumed the obligation to make repairs, modification, and modernization. The
Platinum Premier Service Agreement is a ThyssenKrupp Elevator Corporation document
and was drafted by ThyssenKrupp Elevator Corporation and therefore should be
construed against Thyssen in favor of the hospital. This is the case because in
agreements where one party seeks indemnity from the other, such agreements are
construed in favor of the indemnitor (VBMC) and against the indemnitee, which in this
case is TK Elevator Corporation.
15. Notwithstanding Third-Party Plaintiff ThyssenKrupp Elevator Corporation’s pled
allegations, ThyssenKrupp contracted to inspect, maintain, repair and replace the
necessary components on the subject elevator and perform periodic safety testing on its
equipment so as to prevent issues with mis-leveling or malfunctioning of the elevator’s
landing and positioning control system to ensure that the elevator would stop on the
correct floor. See Exhibit A, page 4 of 13. By contracting to perform preventative
maintenance and to undertake periodic safety testing, ThyssenKrupp Elevator
Corporation promised to maintain the hospital’s elevators in a safe condition and
assumed the affirmative duty to do so with reasonable care, skill, and expedience the
negligent performance of which gives rise to tort liability.
16. ThyssenKrupp contends the hospital is obligated to defend and indemnify ThyssenKrupp
based on boilerplate language buried under two paragraphs contained in a small section of
the contract identified as “Other.” Within this untitled paragraph, a contract which is
entirely written in fine print, sits an indemnity agreement that in no way obligates VBMC
to indemnify ThyssenKrupp under the facts of this case. The operative language of the
indemnity agreement in attached Exhibit A states:
In consideration of ThyssenKrupp Elevator performing the services herein specified,
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[WH/Ofc] V/V-1165/Pleadings/VBMC/VBMC’s 1st Amend. Ans. To Vanguard and TK’s 3rd Pty Petitions
you expressly agree, to the fullest extent permitted by law, to indemnify, defend,
save harmless, discharge, release and forever acquit ThyssenKrupp Elevator
Corporation, our employees, officers, agents, affiliates, and subsidiaries from and
against any and all claims, demands, suits, and proceedings brought against
ThyssenKrupp elevator, our employees, officers, agents, affiliates and subsidiaries
for loss, property damage (including damage to the equipment which is the subject
matter of this agreement), personal injury or death that are alleged to have been
caused by the Purchaser or any others in connection with the presence, use, misuse,
maintenance, installation, removal, manufacture, design, operation or condition of
the equipment covered by this agreement, or the associated areas surrounding such
equipment. Your duty to indemnify does not apply to the extent that the loss,
property damage (including damage to the equipment which is the subject matter
of this agreement), personal injury or death is determined to be caused by or
resulting from the negligence of ThyssenKrupp Elevator and/or our employees.
You recognize that your obligation to ThyssenKrupp Elevator under this cause
includes payment of all attorney’s fees, court costs, judgments, settlements, interest
and any other expenses of litigation arising out of such claims or lawsuits.
See Page 7 of 13 of attached Exhibit A (bold and italics added). The language of this
paragraph is not conspicuous. However, this indemnity provision specifically states that
ThyssenKrupp’s attempt to shift liability for its maintenance obligations to the hospital fails
when the injury or death claim “is determined to be caused by or resulting from the
negligence of ThyssenKrupp Elevator and/or [its] employees.”
17. Because Mr. Diaz’s injury claim resulted from a malfunctioning elevator that
ThyssenKrupp contracted to inspect, maintain, and repair, there is no basis for the hospital
indemnifying said company. Deidrick Diaz’s workers’ compensation claim and this
litigation would not be necessary nor would there be any basis for a lawsuit by Mr. Diaz if
ThyssenKrupp had fulfilled its affirmative common law and contractual obligations to
develop a safety and quality assurance program to properly inspect, maintain, test, and
replace the equipment and necessary parts that were involved in the elevator malfunction
which led to the elevator mis-leveling in this case. In this way, clearly this event was
“caused by or resulting from the negligence of ThyssenKrupp Elevator” as mentioned in
the latter part of the indemnity paragraph therefore nullifying any claim under the earlier
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[WH/Ofc] V/V-1165/Pleadings/VBMC/VBMC’s 1st Amend. Ans. To Vanguard and TK’s 3rd Pty Petitions
part of the indemnity paragraph so as to entitle ThyssenKrupp or its successor to indemnity.
18. ThyssenKrupp also contends the hospital is obligated to defend, indemnify, and hold
ThyssenKrupp harmless based on the Insurance paragraph contained in The Platinum
Premier Service Agreement of attached Exhibit A, located on page 7 of 13. The operative
language of the Insurance paragraph indemnity agreement in attached Exhibit A states:
Insurance
You expressly agree to name ThyssenKrupp Elevator Corporation along with its
officers, agents, affiliates and subsidiaries as additional insureds in your liability and
any excess (umbrella) liability insurance policy(ies). Such insurance must insure
ThyssenKrupp Elevator Corporation, along with its officers, agents, affiliates and
subsidiaries for those claims and/or losses referenced in the above [indemnity]
paragraph, and for claims and/or losses arising from the sole negligence or
responsibility of ThyssenKrupp Elevator Corporation and/or its officers, agents,
affiliates and subsidiaries. Such insurance must specify that its coverage is primary
and non-contributory. You hereby waive the right of subrogation.
See Page 7 of 13 of attached Exhibit A. (bold, italics and bracketed text added).
19. The language of the “Insurance” paragraph incorporates “those claims and/or losses
referenced in the above [indemnity] paragraph, and for claims and/or losses arising from
the sole negligence or responsibility of ThyssenKrupp Elevator Corporation.” The
“Insurance” paragraph is not a standalone provision and therefore runs afoul of and is
subject to the Express Negligence Doctrine. Although the Texas Supreme Court has held
that standard standalone additional insurance paragraphs are not subject to the Express
Negligence Doctrine; that is not the case for intertwined indemnity and express negligence
clauses like this one. Here the combined intertwined paragraphs provide that no indemnity
is required by VBMC for the negligence of ThyssenKrupp because the preceding indemnity
paragraph states such even though the subsequent insurance clause (which expressly
incorporates the indemnity paragraph) seeks to excuse ThyssenKrupp from liability from
its sole negligence. ThyssenKrupp appears to give its customer something reasonable on
the one hand while taking it away through some contractual slight-of-hand on the reverse
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side, making the customer the guarantor of the elevator company’s performance obligation.
Such schemes of a corporation releasing oneself from their own negligence has been
condemned by the Texas Supreme Court. The supreme court commented about “the
injustice arising when a contracting party buries a provision, substantially releasing itself
from its own negligence in a way that is inconspicuous and does not provide fair notice to
the other party.” Green Int’l, Inc. v. Solis, 951, S.W.2d 384, 387 (Tex. 1997).
20. In addition to running afoul of the Express Negligence Doctrine, which requires no
ambiguity and conspicuousness, the two paragraphs that ThyssenKrupp makes the basis of
its Third-Party Action against VBMC are internally inconsistent and patently ambiguous on
their face. Moreover, this attempt to relieve itself from the consequences of its own fault is
unconscionable given the affirmative representations ThyssenKrupp made concerning their
expertise, their preventative maintenance program, their parts repair and replacement, their
maintenance, their control, and their quality assurance program.
II. General Denial
21. Third party defendant and counter-plaintiff, by and through undersigned counsel and
without the benefit of discovery, herewith enters its general denial in accordance with Rule
92 of the Texas Rules of Civil Procedure, thereby, under the law, generally denying the
allegations contained in the third-party petitions as well as all other pled causes of action
against VBMC, and, pursuant to the law, places the burden of proof upon the third-party
plaintiffs and all other parties seeking any affirmative relief against the hospital, to prove
each and every material allegation in their pleadings.
III. Affirmative Defenses
22. Tex. Labor Code § 417.004 provides that:
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Sec. 417.004. Employer Liability to Third Party.
In an action for damages brought by an injured employee, a legal beneficiary, or an
insurance carrier against a third party liable to pay damages for the injury or death
under this chapter that results in a judgment against the third party or a settlement by
the third party, the employer is not liable to the third party for reimbursement or
damages based on the judgment or settlement unless the employer executed, before
the injury or death occurred, a written agreement with the third party to assume the
liability.
Because the ThyssenKrupp indemnity and insurance provisions are inextricably
intertwined and violate the express negligence rule, they are void as a matter of law and
for this reason § 417.004 bars any right of recovery by ThyssenKrupp Elevator
Corporation against the hospital and specifically bars contribution claims as they existed
at common law and as provided for by Chapter 33 of the Texas Civil Practice and
Remedies Code.
23. Tex. Labor Code § 417.004 bars Vanguard’s claim for indemnity. Indemnification under
the hospital’s contract with Vanguard is limited to “acts or omissions of [the] Hospital”
and does not specifically provide indemnity for injuries suffered by hospital employees.
24. Plaintiff Deidrick Diaz was injured due to an elevator mis-leveling issue and not due to
any act or omission of VBMC. VBMC is not vicariously liable for ThyssenKrupp who is
an independent contractor and VBMC is not obligated to pay Vanguard for any alleged
responsibility for issues involving the elevator.
25. Mr. Diaz was on the way to work and not on duty. Mr. Diaz was not acting in any
capacity on behalf of VBMC at the time of the accident. VBMC affirmatively denies it
caused any loss so as to entitle Vanguard to bring an indemnity claim against VBMC.
The hospital is not obligated to indemnify Vanguard Resource, Inc.
26. To the extent the jury determines part of the events that give rise to the facts made the
basis of Diaz’s damage claims are due to Vanguard’s conduct, then no indemnity is owed
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[WH/Ofc] V/V-1165/Pleadings/VBMC/VBMC’s 1st Amend. Ans. To Vanguard and TK’s 3rd Pty Petitions
to Vanguard Resources, Inc. under the terms of the indemnity agreement.
27. The indemnity provision made the basis of Vanguard’s complaint patently violates the
express negligence rule. The indemnity paragraph made the basis of Vanguard’s
complaint seeks to indemnify Vanguard for losses relating to Vanguard’s performance
except where a loss is caused in whole or in part by Vanguard. This is an end run around
the express negligence rule. However, were the Court to determine that the indemnity
provision is not violative of the express negligence rule, then it is unenforceable because
of ambiguity since there is no explanation or context given under which the hospital
could be liable or responsible for negligence associated with the service performed or
furnished by Vanguard.
28. ThyssenKrupp’s claim for a defense and indemnification fails to meet the Express
Negligence Doctrine’s unambiguous and conspicuous requirements and therefore fails as
a matter of law.
29. Furthermore, VBMC asserts that TK Elevator Corporation, which is the current iteration
under which former ThyssenKrupp Elevator Corporation is doing business, lacks
standing to enforce Exhibit A because the contract is between the hospital and the
predecessor to TK Elevator Corporation.
30. In the alternative, as allowed for the Tex. R. Civ. P. 47, VBMC pleads ambiguity with
respect to the indemnity and the insurance provisions in The Platinum Premier Service
Agreement. On one hand ThyssenKrupp is seeking a defense and indemnity from an
agreement that excuses the hospital from liability for any negligence on the part of
Thyssen, and on the other hand, they seek to hold the hospital responsible for the “sole
negligence or responsibility of ThyssenKrupp Elevator Corporation” based on the
unlawful additional insurance paragraph that fails to meet the Express Negligence
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Doctrine requirements.
31. VBMC is the owner and occupier of the hospital’s premises. ThyssenKrupp Elevator
Corporation is an independent contractor who undertook the affirmative obligation to
inspect, service, and maintain the hospital’s elevator. The hospital had no duty to ensure
that ThyssenKrupp performed its affirmative obligations in a safe manner and the
hospital was within its right to justifiably rely on the elevator company’s affirmative
representations that it would perform its obligations in accordance with The Platinum
Premier Service Agreement; therefore the hospital should be excused from any obligation
to insure ThyssenKrupp from its contractual obligations to properly maintain the elevator
in question since enforcement of the additional insurance paragraph (1) would cause an
extreme forfeiture or penalty, and (2) the additional insurance provision of the contract is
not an essential term of the agreement.
32. Defendant pleads the doctrine of unconscionability. The intertwined ambiguous
indemnity and insurance paragraphs of ThyssenKrupp’s contract violate public policy
and are injurious to the public. The elevator company represented it was the expert in
elevator maintenance with The Platinum Premier Service Agreement and public policy
should not allow an elevator service company to offload its common law and statutory
obligations to furnish maintenance with due care and diligence to its customers.
33. Page 4 of 19 of The Platinum Premier Service Agreement (TKE 000116), attached as
Exhibit A, provides that all parts used or needing replacement (full coverage parts repair
and/or replacement for all components) will “meet the quality standards of
ThyssenKrupp Elevator.” It would likewise be unconscionable to allow the elevator
service company to make its customers the guarantors of ThyssenKrupp or
ThyssenKrupp’s successors quality assurance program.
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34. In the alternative, as allowed for by Tex. R. Civ. P. 47, defendant denies the third-party
plaintiffs satisfied all conditions precedent for imposing liability on this party defendant.
35. VBMC asserts that ThyssenKrupp’s conduct is a cause or the sole cause of the loss
complained about.
36. There is a failure of conditions precedent in connection with the additional insurance
provision in Exhibit A. Having primary insurance was a condition precedent under the
contract with the elevator service company. Having primary insurance was necessary to
impose liability and any obligation on VBMC. The nonoccurrence of this precedent
condition vitiates any obligation to provide additional insurance to ThyssenKrupp and
renders the additional insurance paragraph a nullity.
IV. Counter-Petition
37. Third Party Defendant and Counter-Plaintiff VBMC asserts in accordance with rule 54 of
the Texas Rules of Civil Procedure that all conditions precedent have occurred or been
performed.
38. Third Party Defendant and Counter-Plaintiff VBMC reasserts the background facts set
forth in Paragraph I, Subparagraphs 1 to 20 f above for purposes of its Counter-Petition
which gives the Counter-Defendants fair notice of the nature of Counter-Plaintiff’s factual
allegations.
39. Counter-Plaintiff brings this action against Counter-Defendants ThyssenKrupp Elevator
Corporation now referred to as TK Elevator Corporation and Vanguard Resources, Inc.
40. Counter-Defendants have already entered an appearance in this case and service is being
effectuated through their counsel of record.
41. Damages sought by VBMC are within the jurisdictional limits of the Court.
42. Counter-Plaintiff seeks monetary relief over $250,000 but not more than $1,000,000, and a
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demand for judgment for all the other relief to which VBMC is entitled.
43. Venue over this matter is properly before this Court since the hospital is located in
Cameron County and the contractual obligations and underlying events giving rise to this
dispute occurred in Cameron County, Texas.
44. VBMC brings this action against ThyssenKrupp or its predecessor for breach of contract
and misfeasance to the extent the facts demonstrate that ThyssenKrupp Elevator
Corporation or its successor failed to examine the subject elevator for “optimum
operation” to include the “control and landing positioning system” so as to ensure that
the elevator did not misposition itself between hospital floors.
45. VBMC brings this action against ThyssenKrupp or its successor for breach of contract
and misfeasance to the extent Counter-Defendant failed to properly lubricate, adjust, or
timely replace any components which failed due to normal wear and tear as required by
Exhibit A, which provides for Full Coverage Parts Repair and Replacement under The
Platinum Premier Service Agreement attached hereto and incorporated herein by
reference as Exhibit A.
46. VBMC brings this action against ThyssenKrupp or its successor for breach of contract
and misfeasance to the extent Counter-Defendant failed to: (1) implement an
appropriate elevator Quality Assurance program to help increase elevator performance;
(2) utilize the latest industry methods and available technology; and (3) provide the
hospital with the necessary replacement parts so as to ensure the elevator in question
operated safely for hospital licensees and invitees. ThyssenKrupp’s Quality Assurance
obligations are contained in the Quality Assurance paragraph of The Platinum Premier
Service Agreement attached hereto and incorporated herein by reference as Exhibit A.
47. VBMC brings this action against ThyssenKrupp or its successor for breach of contract
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and misfeasance to the extent Counter-Defendant failed to implement and provide for
the periodic testing requirements outlined in the American National Safety Code for
Elevators and Escalators, a service that is specifically included in The Platinum Premier
Service Agreement attached hereto and incorporated herein by reference as Exhibit A.
See Exhibit A, page 6 of 13, titled “Periodic Safety Testing.”
48. VBMC brings this action against Vanguard Resources, Inc. for breaching its additional
insurance obligations contained in paragraph 7 of the agreement with VBMC for failing
to make VBMC an additional insured under its comprehensive general liability
insurance policy.
49. VBMC brings this action against Vanguard Resources, Inc. for indemnity to the extent
the jury determines that any liability allegations against Vanguard are valid which
would fall within those claims requiring that Vanguard indemnify VBMC under
paragraph 11 of the agreement between Vanguard Resources, Inc. and VBMC.
V. Damages and Attorneys’ Fees
50. VBMC seeks all damages to which it is entitled, both general and special as well as
damages for breach of contract, tort damages, contractual attorneys’ fees, and all
consequential and resultant damages flowing from the actions of the counter-defendants
and all other jointed parties as allowed for by the contractual agreements at issue in this
litigation as well as at law. Tort damages would be available to the extent the factfinder
determines any Counter-Defendant failed to perform its common law and statutory
obligations in a good and workmanlike manner.
VI. Contribution and Indemnity
51. Third-Party Defendant and Counter-Plaintiff reserves its statutory right to contractual
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[WH/Ofc] V/V-1165/Pleadings/VBMC/VBMC’s 1st Amend. Ans. To Vanguard and TK’s 3rd Pty Petitions
indemnity, contribution or credit with respect to the other parties in this case as set forth in
Chapters 32 and 33 of the Texas Civil Practice and Remedies Code. Third-Party
Defendant and Counter-Plaintiff specifically reserves the right to submit issues to the jury
inquiring of the alleged responsibility of the third-party plaintiffs, all other parties in this
cause and/or settling defendants, and/or designated responsible third parties or
alternatively reserves the right to elect a dollar for dollar credit for any settlement of
monies or other valuable consideration paid or agreed upon or for the benefit of the
plaintiff, any third-party plaintiff or, alternatively, reserves the statutory right to avail itself
of such percentage or dollar credits as provided by statute and the common law.
52. Contribution claims against VBMC are barred by Texas Labor Code § 417.004. The
Texas Labor Code prohibits all claims (except for contractual claims) against an injured
employee’s employer. Accordingly, any claims for common law or statutory indemnity,
proportionate responsibility, or for common law or statutory contribution are barred.
VII. Jury Demand
53. VBMC respectfully requests a trial by jury and has deposited the required fee with the
District Clerk’s office.
VIII. Prayer
Third Party Defendant and Counter-Plaintiff, Valley Baptist Medical Center—Harlingen,
prays that Counter-Defendants and Third-Party Plaintiffs be cited to appear and answer herein as
required by law and that upon a full trial, the Court award Counter-Plaintiff and Third-Party
Defendant VBMC all actual damages and other relief sought, both contractual and as allowed for by
law, its attorneys’ fees and costs, judgment for all costs of court, and for such other general and
special relief, whether at law or in equity, to which the hospital may show itself to be justly
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[WH/Ofc] V/V-1165/Pleadings/VBMC/VBMC’s 1st Amend. Ans. To Vanguard and TK’s 3rd Pty Petitions
entitled.
Respectfully submitted,
HUGHES HEALTH LAW PLLC
P.O. Box 530393
Harlingen, Texas 78553-0393
Phone: 956/425-4105
Fax: 956/368-5082
Email: will@hugheshealthlaw.com
/s/ Will Hughes
By: ____________________________________
Will Hughes
State Bar No.10240100
ATTORNEYS FOR DEFENDANT VHS
HARLINGEN HOSPITAL COMPANY LLC
DBA VALLEY BAPTIST MEDICAL CENTER-
HARLINGEN
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[WH/Ofc] V/V-1165/Pleadings/VBMC/VBMC’s 1st Amend. Ans. To Vanguard and TK’s 3rd Pty Petitions
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing instrument was
served on the following counsel of record on this the 5th day of May, 2023, as shown below.
Service is being effectuated electronically through eFileTexas.gov to all known counsel of record. I
understand that eFileTexas.gov will send a case filing notification to all known counsel of record
who have registered to use eFileTexas.gov.
Email: Ttijerina@mbmtlawfirm.com
Email: Trey@mbmtlawfirm.com
Thomas F. Tijerina
Martinez &|Tijerina, PLLC
Benigno (Trey) Martinez
1201 East Van Buren
Brownsville, Texas 78520
Email: rguerra@rguerralaw.com
Robert L. Guerra, Jr.
Law Office of Robert Guerra, PLLC
1201 East Van Buren
Brownsville, Texas 78520
Email: aaron@fvlawfirm.com
Email: ryan@fvlawfirm.com
Aaron Von Flatern
Ryan Reyna
Fogelman & von Flatern
3101 Bee Caves Rd. #301
Austin, Texas 78746
Attorneys for Plaintiff
Email: mramirez@mlllaw.com
Email: awickern@mlllaw.com
Michael I. Ramirez
Alyssa P. Wickern
McCoy Leavitt Laskey, LLC
20726 Stone Oak Parkway, Suite 116
San Antonio, Texas 78258
Attorneys for ThyssenKrupp Elevator Corporation
and TK Elevator Corporation
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[WH/Ofc] V/V-1165/Pleadings/VBMC/VBMC’s 1st Amend. Ans. To Vanguard and TK’s 3rd Pty Petitions
Email:bnichols@hodgejames.com
Email: ajames@hodgejames.com
Bryan D. Nichols
Anthony B. James
Hodge, James, Jilpas & Nichols
1617 E. Tyler Ave., Suite A
Harlingen, Texas 78550
Attorneys for Vanguard Resources, Inc.
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[WH/Ofc] V/V-1165/Pleadings/VBMC/VBMC’s 1st Amend. Ans. To Vanguard and TK’s 3rd Pty Petitions
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Wilbert (Will) Hughes on behalf of Will Hughes
Bar No. 10240100
will@hugheshealthlaw.com
Envelope ID: 75380941
Filing Code Description: AMENDED ORIGINAL ANSWER
Filing Description: Third Party Def & Counter-Plaintiff Valley Baptist
Medical Center-Harlingen's First Amended Original Answer and Response
Pleading to Vanguard Resources, Inc and Thyssenkrupp Elevator Corp's
Third Party Petitions and First Amended Counter-Petition
Status as of 5/8/2023 8:06 AM CST
Associated Case Party: Deidrick Diaz
Name BarNumber Email TimestampSubmitted Status
Samantha Garza sam@mbmtlawfirm.com 5/5/2023 5:52:38 PM SENT
Mayra Sanchez mayra@mbmtlawfirm.com 5/5/2023 5:52:38 PM SENT
Robert Guerra rguerra@rguerralaw.com 5/5/2023 5:52:38 PM SENT
Aaron von Flatern aaron@fvlawfirm.com 5/5/2023 5:52:38 PM SENT
Ryan Reyna ryan@fvlawfirm.com 5/5/2023 5:52:38 PM SENT
Benigno (Trey) Martinez trey@mbmtlawfirm.com 5/5/2023 5:52:38 PM SENT
Tomas Tijerina ttijerina@mbmtlawfirm.com 5/5/2023 5:52:38 PM SENT
Andrea Espinoza andrea@mbmtlawfirm.com 5/5/2023 5:52:38 PM SENT
Stephanie Contreras stephanie@mbmtlawfirm.com 5/5/2023 5:52:38 PM SENT
Associated Case Party: G4S Secure Solutions (USA), Inc
Name BarNumber Email TimestampSubmitted Status
Jose "JJ"Trevino, Jr. jtrevino@valdeztrevino.com 5/5/2023 5:52:38 PM SENT
Katie Guerrero
Preview
FILED - 5/5/2023 5:52 PM 2021-DCL-05129 / 75380941 LAURA PEREZ-REYES Cameron County District Clerk By Vilma Garcia Deputy Clerk CAUSE NO. 2021-DCL-05129 DEIDRICK DIAZ § IN THE DISTRICT COURT § vs. § § VANGUARD RESOURCES INC., § THYSSENKRUPP ELEVATOR § CORPORATION AND TK ELEVATOR § 445th JUDICIAL DISTRICT CORPORATION, ET AL. § § vs. § § VALLEY BAPTIST MEDICAL § CENTER—HARLINGEN § § vs. § § G4S SECURE SOLUTIONS § CAMERON COUNTY, TEXAS (USA), INC. § THIRD-PARTY DEFENDANT AND COUNTER-PLAINTIFF VALLEY BAPTIST MEDICAL CENTER—HARLINGEN’S FIRST AMENDED ORIGINAL ANSWER AND RESPONSIVE PLEADING TO VANGUARD RESOURCES, INC. AND THYSSENKRUPP ELEVATOR CORP.’S THIRD-PARTY PETITIONS AND FIRST AMENDED COUNTER-PETITION TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, VHS HARLINGEN HOSPITAL COMPANY, LLC D/B/A VALLEY BAPTIST MEDICAL CENTER—HARLINGEN, Third Party Defendant and Counter-Plaintiff and makes and files this its Original Answer and Responsive Pleading, and Counter-Petition in Response to Third-Party Plaintiff VANGUARD RESOURCES, INC.’s Third-Party Petition and THYSSENKRUPP ELEVATOR CORPORATION’s First Amended Third-Party Petition in the above-entitled and numbered cause (hereafter sometimes referred to as VBMC, Third-Party Defendant, or Counter-Plaintiff), and any further amendments and supplements thereto, and would respectfully show the Court the following: 1 [WH/Ofc] V/V-1165/Pleadings/VBMC/VBMC’s 1st Amend. Ans. To Vanguard and TK’s 3rd Pty Petitions I. Factual Background 1. VBMC is a hospital that employed plaintiff Deidrick Diaz at the time of the events giving rise to this litigation. 2. VBMC is also a workers compensation subscriber and plaintiff Diaz accepted workers’ compensation benefits and did receive or is receiving said benefits. 3. The accident and elevator malfunction occurred in the hospital’s South Tower when plaintiff Diaz was entering the hospital to report for work. Plaintiff Diaz was taking the elevator in question to his place of employment when it became stuck between the first and second floors near the South Tower entrance. 4. Plaintiff Diaz was a licensee at the time of the accident since he had not yet assumed his job duties and had permission to ingress and egress his place of employment. 5. The contract between Third-Party Plaintiff Vanguard Resources and VBMC was attached as Exhibit 1 to Vanguard’s Third-Party Petition. In accordance with Tex. R. Civ. P. 59, VBMC incorporates that contract and the below provisions of that agreement into this first amended original answer, responsive pleading, and first amended counter-petition. The contract between the hospital and Vanguard contains a stand-alone insurance paragraph, paragraph number seven, which provides as follows: 7. INSURANCE. Company shall secure and maintain at all times during the Term, at Company’s sole expense, general liability insurance covering Company, and Company’s Staff, with a carrier licensed to do business in the State and having at least an “A” best rating, at the following limits: Commercial General Liability covering bodily injury and property damage to third parties and including Products/Completed Operations, Blanket Contractual Liability, and Personal/Advertising Injury: $1,000,000 per occurrence; $2,000,000 general aggregate and $1,000,000 per occurrence Personal/Advertising Injury 2 [WH/Ofc] V/V-1165/Pleadings/VBMC/VBMC’s 1st Amend. Ans. To Vanguard and TK’s 3rd Pty Petitions $2,000,000 Products/Completed Operations aggregate Such insurance shall name Hospital as an additional insured and shall not be cancelable except upon 30 days’ prior written notice to Hospital. Such coverage shall be primary and non-contributory. Company upon request shall annually provide Hospital a certificate of insurance evidencing such coverage and coverage extensions. See Exhibit 1, Defendant and Third-Party Plaintiff Vanguard Resources, Inc.’s Third-Party Petition Against VHS Harlingen Hospital Company, LLC d/b/a Valley Baptist Medical Center—Harlingen, paragraph 7, at page 5. 6. The independent additional insurance provision of the aforementioned contract obligates Vanguard to secure and maintain a $1,000,000 per occurrence Commercial General Liability Insurance Policy covering personal injuries like those claimed by Mr. Diaz. The additional insurance provision requires that such insurance name the hospital as an additional insured and be primary and non-contributory. This additional insurance obligation that Vanguard is obligated to secure and maintain, is a stand-alone provision and it is not linked to the obligation to indemnify, which is the basis for Vanguard’s lawsuit against VBMC. The hospital requested a copy of the certificate of insurance evidencing the aforementioned coverage and Vanguard failed to produce and provide such confirmation. Failure of Vanguard to produce and provide VBMC with such an additional insurance obligation is a material breach of Vanguard’s contractual obligation. There is no justifiable or legal excuse for Vanguard not making VBMC an additional insured under Vanguard’s CGL policy. VBMC is entitled to actual and consequential damages resulting from Vanguard not performing this contractual obligation. 7. The indemnity provision cited by Third-Party Plaintiff Vanguard provides as follows: 11. INDEMNIFICATION. Hospital hereby agrees to indemnify, protect, defend and hold the Company and its officers, directors, employees agents, and representatives (collectively the “Company Parties”) harmless from and against any and all liabilities, claims, causes of action, fines, damages, suits and expenses, 3 [WH/Ofc] V/V-1165/Pleadings/VBMC/VBMC’s 1st Amend. Ans. To Vanguard and TK’s 3rd Pty Petitions including expert fees (collectively, the “Claims”), arising from the acts or omissions of Hospital hereunder including those which arise out of, are related to, or are caused by the services performed by Company hereunder except where caused by the negligence, in whole or in part, or the gross negligence of the Company Parties. If any action or proceeding shall be brought against the Company Parties, or any of them, by reason of any such Claim, Hospital, upon notice from Company, shall provide a separate defense to same at Hospital’s sole cost and expense by counsel reasonably satisfactory to Company. Company hereby agrees to indemnify, protect, defend and hold the Hospital and its officers, directors, employees, agents, and representatives (collectively the “Hospital Parties”) harmless from and against any and all Claims, arising from the acts or omissions of Company related to, or are caused by the services performed by Company hereunder except where caused by the negligence, in whole or in part, or the gross negligence of the Hospital Parties. If any action or proceeding shall be brought against the Hospital Parties, or any of them, by reason of any such Claim, Company, upon notice from Hospital, shall provide a separate defense to same at Company’s sole cost and expense by counsel as agreed by Hospital. See Exhibit 1, Defendant and Third-Party Plaintiff Vanguard Resources, Inc.’s Third- Party Petition Against VHS Harlingen Hospital Company, LLC d/b/a Valley Baptist Medical Center—Harlingen, paragraph 11, at pages 6 and 7 (bold and italics added). 8. The indemnity obligation of VBMC is limited to “acts or omissions of [the] Hospital.” Id. Plaintiff Deidrick Diaz was injured due to an elevator mis-leveling issue and not due to any act or omission of VBMC. Additionally, Deidrick Diaz was not acting in the course and scope of his employment at or about the time of the events giving rise to this lawsuit. Employee Diaz was on hospital premises with permission to come and go from the unit at which he worked. When coming to and going from his place of employment, Deidrick Diaz was not performing job-related duties for the hospital. Deidrick Diaz would have been a licensee and was not in the course and scope of his employment. Therefore, his actions in deciding to take directions from the elevator company or the security officer to jump out of the elevator did not occur during one of his hospital shifts. Plaintiff Diaz’s actions are not attributable to the hospital and no contractual duty of indemnity is owed to Vanguard. 4 [WH/Ofc] V/V-1165/Pleadings/VBMC/VBMC’s 1st Amend. Ans. To Vanguard and TK’s 3rd Pty Petitions 9. VBMC was the owner and occupier of the hospital and as such, any acts or omissions of the hospital would be adjudged by premises liability law. Because Deidrick Diaz was entering the hospital to gain ingress and egress to his place of employment, Mr. Diaz would have been a licensee at the time of the complained of incident and not an invitee. As such, the hospital would have only been responsible for any act or omission as to Mr. Diaz if it had actual knowledge that the elevator in question maintained by TK Elevator Corporation was unsafe. The hospital had no foreknowledge that the elevator in question would malfunction or was otherwise unfit for use by Diaz or the general public; therefore, there is no act or omission on the part of the hospital that merits indemnification. 10. The indemnification paragraph does not require the hospital to indemnify Vanguard Resources, Inc. where the claim or causes of action were “caused by the negligence, in whole or in part” of Vanguard or its employees. Both plaintiff Diaz and ThyssenKrupp and TK Elevator Corporation are making claims against Vanguard Resources, Inc. Assuming there is any merit to these claims, then no indemnity is owed by VBMC under the terms of the indemnity agreement to Vanguard and it would be premature to indemnify and provide a defense to Vanguard Resources Inc. until such time as the factfinder makes a liability determination in this case. 11. To the extent any liability allegations against Vanguard are shown to be valid, then Vanguard Resources, Inc. owes VBMC a duty to indemnify the hospital by counsel agreed upon by the hospital. 12. VBMC entered into The Platinum Premier Service Agreement, attached hereto and incorporated herein by reference as Exhibit A, with ThyssenKrupp Elevator Corporation. This agreement provided for a comprehensive maintenance program designed to 5 [WH/Ofc] V/V-1165/Pleadings/VBMC/VBMC’s 1st Amend. Ans. To Vanguard and TK’s 3rd Pty Petitions maximize the performance, safety, and life span of the hospital’s elevator equipment. The Platinum Premier Service Agreement Preventative Maintenance Program included the aforementioned company examining VBMC’s elevators to insure optimum operation including lubrication and adjustment of safety mechanisms, drives, motors, governors, sheaves, and control and landing positioning systems. See Exhibit A, page 4 of 13. 13. ThyssenKrupp Elevator Corporation contracted to provide full coverage parts repair and/or replacement for all components requiring service or repair due to normal wear. They also warranted that ThyssenKrupp Elevator Corporation maintained a comprehensive parts inventory to support its operations and meet the quality standards of ThyssenKrupp Elevator Corporation. ThyssenKrupp Elevator Corporation warranted that to ensure “Quality Assurance,” its technicians utilized the latest industry methods and technology available for the hospital’s specific brand of elevator and that behind its onsite technicians was a “team devoted to elevator excellence” and that its technicians were ”supported around the clock by a team of engineers and field support experts.” See Exhibit A, page 4 of 13. With all these assurances in place, the hospital justifiably relied on ThyssenKrupp’s expertise and affirmative representations that it would undertake positive steps to ensure the hospital’s elevators operated safely and efficiently. 14. In its pleadings at paragraph 12 of its First Amended Third Party Petition, ThyssenKrupp Elevator Corporation asserts that the hospital, as the owner of the subject elevator, had the duty to make proper repairs and modifications and modernizations to the elevator as suggested and proposed by ThyssenKrupp Elevator Corporation. VBMC denies it was obligated to make such repairs, modifications, or modernizations in the context of the facts giving rise to this dispute. This assertion by ThyssenKrupp contradicts the plain wording of The Platinum Premier Service Agreement where ThyssenKrupp in fact 6 [WH/Ofc] V/V-1165/Pleadings/VBMC/VBMC’s 1st Amend. Ans. To Vanguard and TK’s 3rd Pty Petitions clearly assumed the obligation to make repairs, modification, and modernization. The Platinum Premier Service Agreement is a ThyssenKrupp Elevator Corporation document and was drafted by ThyssenKrupp Elevator Corporation and therefore should be construed against Thyssen in favor of the hospital. This is the case because in agreements where one party seeks indemnity from the other, such agreements are construed in favor of the indemnitor (VBMC) and against the indemnitee, which in this case is TK Elevator Corporation. 15. Notwithstanding Third-Party Plaintiff ThyssenKrupp Elevator Corporation’s pled allegations, ThyssenKrupp contracted to inspect, maintain, repair and replace the necessary components on the subject elevator and perform periodic safety testing on its equipment so as to prevent issues with mis-leveling or malfunctioning of the elevator’s landing and positioning control system to ensure that the elevator would stop on the correct floor. See Exhibit A, page 4 of 13. By contracting to perform preventative maintenance and to undertake periodic safety testing, ThyssenKrupp Elevator Corporation promised to maintain the hospital’s elevators in a safe condition and assumed the affirmative duty to do so with reasonable care, skill, and expedience the negligent performance of which gives rise to tort liability. 16. ThyssenKrupp contends the hospital is obligated to defend and indemnify ThyssenKrupp based on boilerplate language buried under two paragraphs contained in a small section of the contract identified as “Other.” Within this untitled paragraph, a contract which is entirely written in fine print, sits an indemnity agreement that in no way obligates VBMC to indemnify ThyssenKrupp under the facts of this case. The operative language of the indemnity agreement in attached Exhibit A states: In consideration of ThyssenKrupp Elevator performing the services herein specified, 7 [WH/Ofc] V/V-1165/Pleadings/VBMC/VBMC’s 1st Amend. Ans. To Vanguard and TK’s 3rd Pty Petitions you expressly agree, to the fullest extent permitted by law, to indemnify, defend, save harmless, discharge, release and forever acquit ThyssenKrupp Elevator Corporation, our employees, officers, agents, affiliates, and subsidiaries from and against any and all claims, demands, suits, and proceedings brought against ThyssenKrupp elevator, our employees, officers, agents, affiliates and subsidiaries for loss, property damage (including damage to the equipment which is the subject matter of this agreement), personal injury or death that are alleged to have been caused by the Purchaser or any others in connection with the presence, use, misuse, maintenance, installation, removal, manufacture, design, operation or condition of the equipment covered by this agreement, or the associated areas surrounding such equipment. Your duty to indemnify does not apply to the extent that the loss, property damage (including damage to the equipment which is the subject matter of this agreement), personal injury or death is determined to be caused by or resulting from the negligence of ThyssenKrupp Elevator and/or our employees. You recognize that your obligation to ThyssenKrupp Elevator under this cause includes payment of all attorney’s fees, court costs, judgments, settlements, interest and any other expenses of litigation arising out of such claims or lawsuits. See Page 7 of 13 of attached Exhibit A (bold and italics added). The language of this paragraph is not conspicuous. However, this indemnity provision specifically states that ThyssenKrupp’s attempt to shift liability for its maintenance obligations to the hospital fails when the injury or death claim “is determined to be caused by or resulting from the negligence of ThyssenKrupp Elevator and/or [its] employees.” 17. Because Mr. Diaz’s injury claim resulted from a malfunctioning elevator that ThyssenKrupp contracted to inspect, maintain, and repair, there is no basis for the hospital indemnifying said company. Deidrick Diaz’s workers’ compensation claim and this litigation would not be necessary nor would there be any basis for a lawsuit by Mr. Diaz if ThyssenKrupp had fulfilled its affirmative common law and contractual obligations to develop a safety and quality assurance program to properly inspect, maintain, test, and replace the equipment and necessary parts that were involved in the elevator malfunction which led to the elevator mis-leveling in this case. In this way, clearly this event was “caused by or resulting from the negligence of ThyssenKrupp Elevator” as mentioned in the latter part of the indemnity paragraph therefore nullifying any claim under the earlier 8 [WH/Ofc] V/V-1165/Pleadings/VBMC/VBMC’s 1st Amend. Ans. To Vanguard and TK’s 3rd Pty Petitions part of the indemnity paragraph so as to entitle ThyssenKrupp or its successor to indemnity. 18. ThyssenKrupp also contends the hospital is obligated to defend, indemnify, and hold ThyssenKrupp harmless based on the Insurance paragraph contained in The Platinum Premier Service Agreement of attached Exhibit A, located on page 7 of 13. The operative language of the Insurance paragraph indemnity agreement in attached Exhibit A states: Insurance You expressly agree to name ThyssenKrupp Elevator Corporation along with its officers, agents, affiliates and subsidiaries as additional insureds in your liability and any excess (umbrella) liability insurance policy(ies). Such insurance must insure ThyssenKrupp Elevator Corporation, along with its officers, agents, affiliates and subsidiaries for those claims and/or losses referenced in the above [indemnity] paragraph, and for claims and/or losses arising from the sole negligence or responsibility of ThyssenKrupp Elevator Corporation and/or its officers, agents, affiliates and subsidiaries. Such insurance must specify that its coverage is primary and non-contributory. You hereby waive the right of subrogation. See Page 7 of 13 of attached Exhibit A. (bold, italics and bracketed text added). 19. The language of the “Insurance” paragraph incorporates “those claims and/or losses referenced in the above [indemnity] paragraph, and for claims and/or losses arising from the sole negligence or responsibility of ThyssenKrupp Elevator Corporation.” The “Insurance” paragraph is not a standalone provision and therefore runs afoul of and is subject to the Express Negligence Doctrine. Although the Texas Supreme Court has held that standard standalone additional insurance paragraphs are not subject to the Express Negligence Doctrine; that is not the case for intertwined indemnity and express negligence clauses like this one. Here the combined intertwined paragraphs provide that no indemnity is required by VBMC for the negligence of ThyssenKrupp because the preceding indemnity paragraph states such even though the subsequent insurance clause (which expressly incorporates the indemnity paragraph) seeks to excuse ThyssenKrupp from liability from its sole negligence. ThyssenKrupp appears to give its customer something reasonable on the one hand while taking it away through some contractual slight-of-hand on the reverse 9 [WH/Ofc] V/V-1165/Pleadings/VBMC/VBMC’s 1st Amend. Ans. To Vanguard and TK’s 3rd Pty Petitions side, making the customer the guarantor of the elevator company’s performance obligation. Such schemes of a corporation releasing oneself from their own negligence has been condemned by the Texas Supreme Court. The supreme court commented about “the injustice arising when a contracting party buries a provision, substantially releasing itself from its own negligence in a way that is inconspicuous and does not provide fair notice to the other party.” Green Int’l, Inc. v. Solis, 951, S.W.2d 384, 387 (Tex. 1997). 20. In addition to running afoul of the Express Negligence Doctrine, which requires no ambiguity and conspicuousness, the two paragraphs that ThyssenKrupp makes the basis of its Third-Party Action against VBMC are internally inconsistent and patently ambiguous on their face. Moreover, this attempt to relieve itself from the consequences of its own fault is unconscionable given the affirmative representations ThyssenKrupp made concerning their expertise, their preventative maintenance program, their parts repair and replacement, their maintenance, their control, and their quality assurance program. II. General Denial 21. Third party defendant and counter-plaintiff, by and through undersigned counsel and without the benefit of discovery, herewith enters its general denial in accordance with Rule 92 of the Texas Rules of Civil Procedure, thereby, under the law, generally denying the allegations contained in the third-party petitions as well as all other pled causes of action against VBMC, and, pursuant to the law, places the burden of proof upon the third-party plaintiffs and all other parties seeking any affirmative relief against the hospital, to prove each and every material allegation in their pleadings. III. Affirmative Defenses 22. Tex. Labor Code § 417.004 provides that: 10 [WH/Ofc] V/V-1165/Pleadings/VBMC/VBMC’s 1st Amend. Ans. To Vanguard and TK’s 3rd Pty Petitions Sec. 417.004. Employer Liability to Third Party. In an action for damages brought by an injured employee, a legal beneficiary, or an insurance carrier against a third party liable to pay damages for the injury or death under this chapter that results in a judgment against the third party or a settlement by the third party, the employer is not liable to the third party for reimbursement or damages based on the judgment or settlement unless the employer executed, before the injury or death occurred, a written agreement with the third party to assume the liability. Because the ThyssenKrupp indemnity and insurance provisions are inextricably intertwined and violate the express negligence rule, they are void as a matter of law and for this reason § 417.004 bars any right of recovery by ThyssenKrupp Elevator Corporation against the hospital and specifically bars contribution claims as they existed at common law and as provided for by Chapter 33 of the Texas Civil Practice and Remedies Code. 23. Tex. Labor Code § 417.004 bars Vanguard’s claim for indemnity. Indemnification under the hospital’s contract with Vanguard is limited to “acts or omissions of [the] Hospital” and does not specifically provide indemnity for injuries suffered by hospital employees. 24. Plaintiff Deidrick Diaz was injured due to an elevator mis-leveling issue and not due to any act or omission of VBMC. VBMC is not vicariously liable for ThyssenKrupp who is an independent contractor and VBMC is not obligated to pay Vanguard for any alleged responsibility for issues involving the elevator. 25. Mr. Diaz was on the way to work and not on duty. Mr. Diaz was not acting in any capacity on behalf of VBMC at the time of the accident. VBMC affirmatively denies it caused any loss so as to entitle Vanguard to bring an indemnity claim against VBMC. The hospital is not obligated to indemnify Vanguard Resource, Inc. 26. To the extent the jury determines part of the events that give rise to the facts made the basis of Diaz’s damage claims are due to Vanguard’s conduct, then no indemnity is owed 11 [WH/Ofc] V/V-1165/Pleadings/VBMC/VBMC’s 1st Amend. Ans. To Vanguard and TK’s 3rd Pty Petitions to Vanguard Resources, Inc. under the terms of the indemnity agreement. 27. The indemnity provision made the basis of Vanguard’s complaint patently violates the express negligence rule. The indemnity paragraph made the basis of Vanguard’s complaint seeks to indemnify Vanguard for losses relating to Vanguard’s performance except where a loss is caused in whole or in part by Vanguard. This is an end run around the express negligence rule. However, were the Court to determine that the indemnity provision is not violative of the express negligence rule, then it is unenforceable because of ambiguity since there is no explanation or context given under which the hospital could be liable or responsible for negligence associated with the service performed or furnished by Vanguard. 28. ThyssenKrupp’s claim for a defense and indemnification fails to meet the Express Negligence Doctrine’s unambiguous and conspicuous requirements and therefore fails as a matter of law. 29. Furthermore, VBMC asserts that TK Elevator Corporation, which is the current iteration under which former ThyssenKrupp Elevator Corporation is doing business, lacks standing to enforce Exhibit A because the contract is between the hospital and the predecessor to TK Elevator Corporation. 30. In the alternative, as allowed for the Tex. R. Civ. P. 47, VBMC pleads ambiguity with respect to the indemnity and the insurance provisions in The Platinum Premier Service Agreement. On one hand ThyssenKrupp is seeking a defense and indemnity from an agreement that excuses the hospital from liability for any negligence on the part of Thyssen, and on the other hand, they seek to hold the hospital responsible for the “sole negligence or responsibility of ThyssenKrupp Elevator Corporation” based on the unlawful additional insurance paragraph that fails to meet the Express Negligence 12 [WH/Ofc] V/V-1165/Pleadings/VBMC/VBMC’s 1st Amend. Ans. To Vanguard and TK’s 3rd Pty Petitions Doctrine requirements. 31. VBMC is the owner and occupier of the hospital’s premises. ThyssenKrupp Elevator Corporation is an independent contractor who undertook the affirmative obligation to inspect, service, and maintain the hospital’s elevator. The hospital had no duty to ensure that ThyssenKrupp performed its affirmative obligations in a safe manner and the hospital was within its right to justifiably rely on the elevator company’s affirmative representations that it would perform its obligations in accordance with The Platinum Premier Service Agreement; therefore the hospital should be excused from any obligation to insure ThyssenKrupp from its contractual obligations to properly maintain the elevator in question since enforcement of the additional insurance paragraph (1) would cause an extreme forfeiture or penalty, and (2) the additional insurance provision of the contract is not an essential term of the agreement. 32. Defendant pleads the doctrine of unconscionability. The intertwined ambiguous indemnity and insurance paragraphs of ThyssenKrupp’s contract violate public policy and are injurious to the public. The elevator company represented it was the expert in elevator maintenance with The Platinum Premier Service Agreement and public policy should not allow an elevator service company to offload its common law and statutory obligations to furnish maintenance with due care and diligence to its customers. 33. Page 4 of 19 of The Platinum Premier Service Agreement (TKE 000116), attached as Exhibit A, provides that all parts used or needing replacement (full coverage parts repair and/or replacement for all components) will “meet the quality standards of ThyssenKrupp Elevator.” It would likewise be unconscionable to allow the elevator service company to make its customers the guarantors of ThyssenKrupp or ThyssenKrupp’s successors quality assurance program. 13 [WH/Ofc] V/V-1165/Pleadings/VBMC/VBMC’s 1st Amend. Ans. To Vanguard and TK’s 3rd Pty Petitions 34. In the alternative, as allowed for by Tex. R. Civ. P. 47, defendant denies the third-party plaintiffs satisfied all conditions precedent for imposing liability on this party defendant. 35. VBMC asserts that ThyssenKrupp’s conduct is a cause or the sole cause of the loss complained about. 36. There is a failure of conditions precedent in connection with the additional insurance provision in Exhibit A. Having primary insurance was a condition precedent under the contract with the elevator service company. Having primary insurance was necessary to impose liability and any obligation on VBMC. The nonoccurrence of this precedent condition vitiates any obligation to provide additional insurance to ThyssenKrupp and renders the additional insurance paragraph a nullity. IV. Counter-Petition 37. Third Party Defendant and Counter-Plaintiff VBMC asserts in accordance with rule 54 of the Texas Rules of Civil Procedure that all conditions precedent have occurred or been performed. 38. Third Party Defendant and Counter-Plaintiff VBMC reasserts the background facts set forth in Paragraph I, Subparagraphs 1 to 20 f above for purposes of its Counter-Petition which gives the Counter-Defendants fair notice of the nature of Counter-Plaintiff’s factual allegations. 39. Counter-Plaintiff brings this action against Counter-Defendants ThyssenKrupp Elevator Corporation now referred to as TK Elevator Corporation and Vanguard Resources, Inc. 40. Counter-Defendants have already entered an appearance in this case and service is being effectuated through their counsel of record. 41. Damages sought by VBMC are within the jurisdictional limits of the Court. 42. Counter-Plaintiff seeks monetary relief over $250,000 but not more than $1,000,000, and a 14 [WH/Ofc] V/V-1165/Pleadings/VBMC/VBMC’s 1st Amend. Ans. To Vanguard and TK’s 3rd Pty Petitions demand for judgment for all the other relief to which VBMC is entitled. 43. Venue over this matter is properly before this Court since the hospital is located in Cameron County and the contractual obligations and underlying events giving rise to this dispute occurred in Cameron County, Texas. 44. VBMC brings this action against ThyssenKrupp or its predecessor for breach of contract and misfeasance to the extent the facts demonstrate that ThyssenKrupp Elevator Corporation or its successor failed to examine the subject elevator for “optimum operation” to include the “control and landing positioning system” so as to ensure that the elevator did not misposition itself between hospital floors. 45. VBMC brings this action against ThyssenKrupp or its successor for breach of contract and misfeasance to the extent Counter-Defendant failed to properly lubricate, adjust, or timely replace any components which failed due to normal wear and tear as required by Exhibit A, which provides for Full Coverage Parts Repair and Replacement under The Platinum Premier Service Agreement attached hereto and incorporated herein by reference as Exhibit A. 46. VBMC brings this action against ThyssenKrupp or its successor for breach of contract and misfeasance to the extent Counter-Defendant failed to: (1) implement an appropriate elevator Quality Assurance program to help increase elevator performance; (2) utilize the latest industry methods and available technology; and (3) provide the hospital with the necessary replacement parts so as to ensure the elevator in question operated safely for hospital licensees and invitees. ThyssenKrupp’s Quality Assurance obligations are contained in the Quality Assurance paragraph of The Platinum Premier Service Agreement attached hereto and incorporated herein by reference as Exhibit A. 47. VBMC brings this action against ThyssenKrupp or its successor for breach of contract 15 [WH/Ofc] V/V-1165/Pleadings/VBMC/VBMC’s 1st Amend. Ans. To Vanguard and TK’s 3rd Pty Petitions and misfeasance to the extent Counter-Defendant failed to implement and provide for the periodic testing requirements outlined in the American National Safety Code for Elevators and Escalators, a service that is specifically included in The Platinum Premier Service Agreement attached hereto and incorporated herein by reference as Exhibit A. See Exhibit A, page 6 of 13, titled “Periodic Safety Testing.” 48. VBMC brings this action against Vanguard Resources, Inc. for breaching its additional insurance obligations contained in paragraph 7 of the agreement with VBMC for failing to make VBMC an additional insured under its comprehensive general liability insurance policy. 49. VBMC brings this action against Vanguard Resources, Inc. for indemnity to the extent the jury determines that any liability allegations against Vanguard are valid which would fall within those claims requiring that Vanguard indemnify VBMC under paragraph 11 of the agreement between Vanguard Resources, Inc. and VBMC. V. Damages and Attorneys’ Fees 50. VBMC seeks all damages to which it is entitled, both general and special as well as damages for breach of contract, tort damages, contractual attorneys’ fees, and all consequential and resultant damages flowing from the actions of the counter-defendants and all other jointed parties as allowed for by the contractual agreements at issue in this litigation as well as at law. Tort damages would be available to the extent the factfinder determines any Counter-Defendant failed to perform its common law and statutory obligations in a good and workmanlike manner. VI. Contribution and Indemnity 51. Third-Party Defendant and Counter-Plaintiff reserves its statutory right to contractual 16 [WH/Ofc] V/V-1165/Pleadings/VBMC/VBMC’s 1st Amend. Ans. To Vanguard and TK’s 3rd Pty Petitions indemnity, contribution or credit with respect to the other parties in this case as set forth in Chapters 32 and 33 of the Texas Civil Practice and Remedies Code. Third-Party Defendant and Counter-Plaintiff specifically reserves the right to submit issues to the jury inquiring of the alleged responsibility of the third-party plaintiffs, all other parties in this cause and/or settling defendants, and/or designated responsible third parties or alternatively reserves the right to elect a dollar for dollar credit for any settlement of monies or other valuable consideration paid or agreed upon or for the benefit of the plaintiff, any third-party plaintiff or, alternatively, reserves the statutory right to avail itself of such percentage or dollar credits as provided by statute and the common law. 52. Contribution claims against VBMC are barred by Texas Labor Code § 417.004. The Texas Labor Code prohibits all claims (except for contractual claims) against an injured employee’s employer. Accordingly, any claims for common law or statutory indemnity, proportionate responsibility, or for common law or statutory contribution are barred. VII. Jury Demand 53. VBMC respectfully requests a trial by jury and has deposited the required fee with the District Clerk’s office. VIII. Prayer Third Party Defendant and Counter-Plaintiff, Valley Baptist Medical Center—Harlingen, prays that Counter-Defendants and Third-Party Plaintiffs be cited to appear and answer herein as required by law and that upon a full trial, the Court award Counter-Plaintiff and Third-Party Defendant VBMC all actual damages and other relief sought, both contractual and as allowed for by law, its attorneys’ fees and costs, judgment for all costs of court, and for such other general and special relief, whether at law or in equity, to which the hospital may show itself to be justly 17 [WH/Ofc] V/V-1165/Pleadings/VBMC/VBMC’s 1st Amend. Ans. To Vanguard and TK’s 3rd Pty Petitions entitled. Respectfully submitted, HUGHES HEALTH LAW PLLC P.O. Box 530393 Harlingen, Texas 78553-0393 Phone: 956/425-4105 Fax: 956/368-5082 Email: will@hugheshealthlaw.com /s/ Will Hughes By: ____________________________________ Will Hughes State Bar No.10240100 ATTORNEYS FOR DEFENDANT VHS HARLINGEN HOSPITAL COMPANY LLC DBA VALLEY BAPTIST MEDICAL CENTER- HARLINGEN 18 [WH/Ofc] V/V-1165/Pleadings/VBMC/VBMC’s 1st Amend. Ans. To Vanguard and TK’s 3rd Pty Petitions CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing instrument was served on the following counsel of record on this the 5th day of May, 2023, as shown below. Service is being effectuated electronically through eFileTexas.gov to all known counsel of record. I understand that eFileTexas.gov will send a case filing notification to all known counsel of record who have registered to use eFileTexas.gov. Email: Ttijerina@mbmtlawfirm.com Email: Trey@mbmtlawfirm.com Thomas F. Tijerina Martinez &|Tijerina, PLLC Benigno (Trey) Martinez 1201 East Van Buren Brownsville, Texas 78520 Email: rguerra@rguerralaw.com Robert L. Guerra, Jr. Law Office of Robert Guerra, PLLC 1201 East Van Buren Brownsville, Texas 78520 Email: aaron@fvlawfirm.com Email: ryan@fvlawfirm.com Aaron Von Flatern Ryan Reyna Fogelman & von Flatern 3101 Bee Caves Rd. #301 Austin, Texas 78746 Attorneys for Plaintiff Email: mramirez@mlllaw.com Email: awickern@mlllaw.com Michael I. Ramirez Alyssa P. Wickern McCoy Leavitt Laskey, LLC 20726 Stone Oak Parkway, Suite 116 San Antonio, Texas 78258 Attorneys for ThyssenKrupp Elevator Corporation and TK Elevator Corporation 19 [WH/Ofc] V/V-1165/Pleadings/VBMC/VBMC’s 1st Amend. Ans. To Vanguard and TK’s 3rd Pty Petitions Email:bnichols@hodgejames.com Email: ajames@hodgejames.com Bryan D. Nichols Anthony B. James Hodge, James, Jilpas & Nichols 1617 E. Tyler Ave., Suite A Harlingen, Texas 78550 Attorneys for Vanguard Resources, Inc. 20 [WH/Ofc] V/V-1165/Pleadings/VBMC/VBMC’s 1st Amend. Ans. To Vanguard and TK’s 3rd Pty Petitions Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Wilbert (Will) Hughes on behalf of Will Hughes Bar No. 10240100 will@hugheshealthlaw.com Envelope ID: 75380941 Filing Code Description: AMENDED ORIGINAL ANSWER Filing Description: Third Party Def & Counter-Plaintiff Valley Baptist Medical Center-Harlingen's First Amended Original Answer and Response Pleading to Vanguard Resources, Inc and Thyssenkrupp Elevator Corp's Third Party Petitions and First Amended Counter-Petition Status as of 5/8/2023 8:06 AM CST Associated Case Party: Deidrick Diaz Name BarNumber Email TimestampSubmitted Status Samantha Garza sam@mbmtlawfirm.com 5/5/2023 5:52:38 PM SENT Mayra Sanchez mayra@mbmtlawfirm.com 5/5/2023 5:52:38 PM SENT Robert Guerra rguerra@rguerralaw.com 5/5/2023 5:52:38 PM SENT Aaron von Flatern aaron@fvlawfirm.com 5/5/2023 5:52:38 PM SENT Ryan Reyna ryan@fvlawfirm.com 5/5/2023 5:52:38 PM SENT Benigno (Trey) Martinez trey@mbmtlawfirm.com 5/5/2023 5:52:38 PM SENT Tomas Tijerina ttijerina@mbmtlawfirm.com 5/5/2023 5:52:38 PM SENT Andrea Espinoza andrea@mbmtlawfirm.com 5/5/2023 5:52:38 PM SENT Stephanie Contreras stephanie@mbmtlawfirm.com 5/5/2023 5:52:38 PM SENT Associated Case Party: G4S Secure Solutions (USA), Inc Name BarNumber Email TimestampSubmitted Status Jose "JJ"Trevino, Jr. jtrevino@valdeztrevino.com 5/5/2023 5:52:38 PM SENT Katie Guerrero