Premises Liability and the Independent Contractor s Employee

Premises Liability and the

Independent Contractor’s Employee

When independent contractors undertake new construction or repair the old, their customers’ premises often become the place where their employees suffer injury. Most independent contractors in Texas cover employee injury matters under the statutory workers’ compensation scheme. The Texas workers’ compensation scheme exchanges strict liability as an “exclusive remedy” for limited dollar damages for employee injury.3 However, even though independent contractor-employers have non-delegable duties to provide safe workplaces for their employees and a limit on their damages,4 careful plaintiffs’ lawyers use the permissive aspects of workers’ compensation law to tap the shoulders of non-employer third parties.5

Landowners and tenants are frequent targets for damages when they engage others to work on their premises, as reported cases show. Although workers’ compensation insurance pays injured workers their limited statutory benefits, landlords and tenants supplement those benefits through the deep pockets of their general liability insurance

1

Fred A. Simpson is a partner in the Houston Litigation Section of Jackson Walker, L.L.P. 2

Beth Anne Jackson is a senior associate at Houston Harbaugh, P.C., Pittsburgh, Pennsylvania. 3

See TEX.LAB.CODEANN. §§408.001 (“Exclusive Remedy; . . .”). 4

Exxon Corp. v. Tidwell, 867 S.W.2d 19, 21 (Tex. 1993).

5

See TEX.LAB.CODEANN. §417.001(a) (“Third-Party Liability”). See Payne v. Galen Hospital Corp., 28 S.W.3d 15, 17 (Tex. 2000). Whether an employer may have third party liability under the “dual capacity” doctrine is yet to be determined in Texas. Id. at 20-21.

carriers.6 General contractors are also frequent targets for damages when employees of subcontractors are injured. Those attacks are justified under a theory that general contractors stand in the shoes of property owners, like tenants, if contractors “control” the premises as true occupants, or they are otherwise liable if they “control” the “work” of their subcontractors.7 To avoid confusion (and to use fewer words), all general contractors, and landowners and tenants who hire others to perform “work,” are referred to below as “contractors.”8

In the past, contractors lost at trial or yielded in mediation because it was not clear how premises liability law applied to employees of their independent subcontractors. But for those uncertainties, many lawsuits would never be filed, settled or tried. Settlements and judgments become fewer, however, as Texas law develops. Contractors and attorneys monitoring these developments hoped to see Texas law more fully clarified in Lee Lewis

Construction, Inc. v. Harrison (2001).9 Lewis, however, proved the maxim that good facts

make bad law, or at least unclear law.10 Because Lewis does not afford Texas contractors the clear rules they had hoped for, the law is still foggy. As part of this survey, let’s first

6

However, subrogation rules and statutes usually eliminate the possibility of a double recovery. See TEX.LAB.CODEANN. §417.001(b); TEX. CIV. PRAC. & REM. CODEANN. § 95.004.

7

Hoechst-Celanese Corporation v. Mendez, 967 S.W. 2d 354, 356 (Tex. 1998).

8

See Koch Refining Co. v. Chapa, 11 S.W. 3d 153, 155 n.1 (Tex. 1999).

9

Lee Lewis Construction, Inc. v. Harrison, 70 S.W. 3d 778 (Tex. 2001).

10

The Justices of the Texas Supreme Court unanimously agreed that the contractor was liable for the death of a subcontractor’s employee, who fell from a multistory building. In the opinion of the Court and the three concurring opinions, however, the Justices set forth different rationales as to why liability was properly imposed.

look at the basic common law principles often attributed to Redinger v. Living, Inc. (1985).11

Texas rules of the common law

General rule: Contractors have no duty to see that independent subcontractors perform their work safely.12

Reason for the rule: Subcontractors are in the better position to warn their employees of general and usual workplace hazards and to find and eliminate specific workplace hazards.13

Exceptions to the rule: When contractors assume control of the manner and means of performing the “work,” contractors become liable for employee injury through failure to use reasonable care in exercising that control.14

Exceptions apply only after courts first determine that contractors have duties to provide safe workplaces. Control is a prerequisite to duty. To prove duty owed, plaintiffs often point to subcontract provisions to claim that any meager aspect of contractor control over any part of the work is sufficient, even though worker injury had no connection with the focused-on contract terms. For example, when plaintiffs argue contractor control of the “work,” plaintiffs focus on the timing and amount of a certain type of work subcontractors must produce. In the past, these claims led to some rewarding results for injured employees even though their injuries were caused from risks of harm over which contractors had no control. However, recent decisions show contract requirements for a

11

Redinger v. Living, Inc., 689 S.W. 2d 415 (Tex. 1985).

12

Ogle v. Shell Oil Co., 913 F. Supp. 490, 493 (E.D. Tex. 1995); Lewis, 70 S.W.3d at 783.

13

Shell Chemical Co. v. Lamb, 493 S.W. 2d 742, 748 (Tex. 1973) (as explained in Ogle v. Shell Oil Co., 913 F.

Supp. 490, 493 (E.D. Tex. 1995). 14

Redinger v. Living, Inc., 689 S.W. 2d 415 (Tex. 1985). A variation of this exception occurs where the

contractor has a non-delegable duty to ensure that inherently dangerous work is performed safely. Loyd v. Herrington, 143 Tex. 135, 182 S.W.2d 1003 (1944).

certain amount or type of work are no indicia of retained contractor supervisory control over the manner or means of performing the work. Trial courts previously dealt with these mere shadows of control as fact issues for juries. However, the Texas Supreme Court now allows trial courts to address these issues of control and dispose of them by summary judgment.15

How duty is established

Plaintiffs have the burden to prove contractors owe a duty of care to injured employees.16 Courts decide duty from the particular facts of each case17 surrounding the occurrences in question.18 Courts weigh the risk, foreseeability, and likelihood of injury against the social utility of the actor’s conduct, the magnitude of the burden of guarding against the injury, and consequences of placing the burden on a non-employer defendant,19 the foremost and dominant consideration being foreseeability20of the risk of harm.

How “foreseeability” suffers in the hands of plaintiffs’ lawyers

Courts legitimately consider “foreseeability” as a question of law when determining any contractor duty owed to injured employees. Plaintiffs frequently gain advantage by commingling their arguments on the “foreseeability” element of duty with another more popular use of “foreseeability,” one of the two sub-elements of proximate

15

Hoechst-Celanese Corporation v. Mendez, 967 S.W. 2d 354 (Tex. 1998).

16

Dixon v. Van Waters and Rogers, 682 S. W. 2d 533, 534 (Tex. 1984).

17

Golden Spread Council, Inc. v. Akins, 926 S.W. 2d 287, 289 (Tex. 1996) (citing to Greater Houston Transp. Co. v. Phillips, 801 S.W. 2d 523, 525 (Tex. 1990)).

18

See Centeq Realty, Inc. v. Siegler, 899 S. W. 2d 195, 197 (Tex. 1995).

19

Golden Spread Council v. Akins, 926 S.W. 2d at 289-290.

20

cause.21 Courts must perform their required measurement of the “foreseeability” part of duty by applying common knowledge and common sense,22 whereas foreseeability, as a sub-element of proximate cause, has far less chance of being a question of law.23 Although foreseeability24 may be vital for determining “duty,” and perhaps its beginning point,25 if plaintiffs convince trial judges that foreseeability is a question of fact for the jury, the door is slammed on contractor arguments of “no duty”, and summary judgments are impossible to obtain.

How duty is proved

How can injured workers convince trial courts that contractors owed a duty of care as a matter of law? Contractors gain or retain the “right to control” through (1) express contract provisions granting rights to supervise the manner and means in which work must be done, or (2) actual control over the work.26 Thus, a contractor’s duty can arise from either actual practice or contract language. But contract language disclaiming control cannot insulate contractors from liability if plaintiffs prove sham, subterfuge, or inconsistent contractor practices concerning control of the work.27 Therefore, contractors may be liable for dangerous conditions negligently created by the workers’ true employers

21

El Chico,732 S.W. 2d at 313.

22

El Chico,732 S.W. 2d at 311.

23

See, e.g., Strakos v. Gehring, 360 S.W.2d 787, 792 (Tex. 1962); Ambrosio v. Carter’s Shooting Center, Inc., 20

S.W.3d 262, 266 (Tex. App. – Houston [14thDist.] 2000, pet. denied). 24

See, NationsBank, N.A. v. Dilling, 922 S.W.2d 950, 954 (Tex. 1996) (no duty in the absence of foreseeability.)

25

Timberwalk Apartments, Partners, Inc., v. Cain, 972 S.W.2d 749, 756 (Tex. 1998).

26

Coastal Marine Service of Texas, Inc. v. Laurence, 988 S.W.2d 223, 226 (Tex. 1999).

27

if the contract terms disclaiming contractor control are meaningless or are disregarded in actual practice.

How duty is disproved

Contractors may show trial courts that there was no duty owed to subcontractors’ injured employees in one of two distinct ways, the obvious one being to establish that contractors had no actual control of the work and had no right to control the work. The second way is for contractors to prove that any control they did have was unrelated to the complained of dangerous conditions. Dangerous conditions arise in two ways: from activities on the premises, and premises defects.28 Contractors are responsible for premises defects if the defects arise from work activity under their supervisory control, and for premises defects pertaining to dangers unrelated to work activities. In order to hold a contractor liable under a premises defect theory, the elements of a premises defect claim must be submitted to the jury with the negligent control question.29 A jury finding of negligent control will not support a premises defect claim without specific findings of premises defect including knowledge and risk of harm.30

The difference between work activity defects and premises defects is explained in a 1997 supreme court decision, which was found by a dissenting justice to be a significant change in Texas law on contractor liability for premises defects.31 In that case, a worker

28

Clayton W. Williams, Jr., Inc. v. Olivo, 952 S. W. 2d 523, 527 (Tex. 1997).

29

Olivo, 952 S.W.2d at 529.

30

Olivo, 952 S.W. 2d at 529.

31

fell from an oil and gas drilling rig, landing on hard-rubber drill pipe thread protectors lying on the adjoining ground. Those rubber devices were left by his fellow workers of a previous shift. However, the devices posed a generally dangerous condition to every person working on the premises, not just those persons engaged in the oil and gas drilling activity.32

To determine how premises defects originate, the first question is whether the injury occurred contemporaneously from work activities or from a premises defect caused by the work activities.33 Contemporaniety is a question of law.34 The second question asks who had supervisory control of the work that created the dangerous conditions.35

In order for these types of premises defects to be attributable to contractors, courts can find either that contractors failed to warn plaintiffs of dangerous conditions on the premises that were independent of the work being performed by the plaintiffs’ subcontractor/employers, or courts can find that contractors were responsible for

dangerous conditions created by the subcontractors’ work because contractors retained

sufficient supervisory control over that work.36 However, the retained supervisory control must relate to the condition (or activity) that actually caused the employee injury.37 The following diagram illustrates these basic principles:

32

See Alamo Lumber Co. v. Pena, 972 S.W. 2d 800, 804 (Tex. App. -- Corpus Christi 1998, pet. denied).

33 Alamo Lumber, 972 S.W.2d 803. 34 Alamo Lumber, 972 S.W.2d 804. 35 Olivo, 952 S.W.2d at 528. 36 See Olivo, 952 S.W.2d at 527. 37 See Olivo, 952 S.W.2d at 528.

The supreme court’s 1985 seminal decision in Redinger38 raised more questions than it answered, and Texas law continues to offer questions and answers after 17 years, even after Lewis. For example, a 1988 supreme court case shows how the right to control the manner and means of performing a contract determines contractor liability, regardless of whether the contractor actually exercises that right of control.39 In that case, a railroad contractually retained substantial supervisory control over significant details of the work. The nature and scope of that right to control the work in that case was enough to impose a duty on the railroad to see that the independent contractor worked in a safe manner. On

38

Redinger v. Living, Inc., 689 S.W. 2d 415 (Tex. 1985).

39

the other hand, a contractor’s obligation to a premises owner to be fully responsible for the actions of subcontractors may not necessarily create contractor liability for injury to the subcontractor’s employees.40

Although Texas law favors everyone’s involvement in workplace safety, injured employees have claimed that contractors retained supervisory control over property improvements because subcontractors were encouraged to change their safety programs or practices after the injuries. However, contractor liability under Redinger is not necessarily proved by changes in safety rules and practices resulting from the contractor’s suggestions.41 In fact, contractors are free to have safety representatives at subcontractor work sites and still avoid the duty of care to the subcontractor’s employees.42 Nor does an employee’s willingness to follow the contractor’s instructions on work or safety necessarily constitute sufficient evidence of control.43 However, a duty can arise where the contractor knows his subcontractor routinely ignores safety laws or rules, or where the contractor gives on-site orders or detailed instructions on the means or methods to carry out a work order.44 Furthermore, the degree of control needed to defeat the contractor’s

40

See Elliott-Williams Co., Inc. v. Diaz, 9 S.W.3d 801 (Tex. 1999).

41

See Davis v. R. Sanders & Assoc. Custom Blders., Inc., 891 S.W. 2d 779, 781 (Tex. App. — Texarkana 1995,

no writ) (requirement that the work be done safely goes to the results of the work, not the details of performance). 42

See Koch v. Chapa, 11 S.W. 2d at 157. But see, RESTATEMENT(Second) of TORTS§§323; 324A, and Lewis, 70 S.W. 3d at 783 (finding liability where the contractor’s supervisor actually approved the use of an unsafe fall-protection system).

43

See Coastal Marine Serv. of Texas, Inc. v Lawrence, 988 S.W. 2d 223, 224 (Tex. 1999).

44

independent contractor defense is “supervisory” control, not incidental, ministerial, or passive control.45

Plaintiffs may argue that the contractor had control over safety modifications to the instrumentality that caused injury to plaintiffs. However, if the contractor did in fact maintain any form of control over that instrumentality, plaintiffs must show precisely what that control was and how that control caused the injury. To that end, the supreme court adopted the principle in 1998 that any supervisory control retained must be the causation of the injuries in question. This is the “nexus” required under Texas law.46 The contractor’s duty of care is commensurate with the control the contractor retains over the work.47

A 1997 Fort Worth case shows most of the relevant basic principles as a summary to this analysis. The contractor in that case retained the following express contractual rights:48

1. control over completion time of the task;

2. the right to require the independent subcontractor to enter into contracts with other lower-tier subcontractors;

3. the right to require the independent subcontractor to follow safety measures initiated by the contractor;

45

See Hoechst-Celanese, 967 S.W. 2d at 356 (supervisory control means subcontractor not entirely free to work

in his own way). 46

This emphasis on the nexus between an employer’s retained supervisory control and the condition or activity that caused the injury . . .” limits the scope of the duty to the scope of the retained supervisory control.

Hoechst-Celanese, 967 S.W. 2d at 357.

47

Hoechst-Celanese, 967 S.W.2d at 357; see also Lewis, 45 Tex. 233.

48

Campbell v. Adventist Health System/Sunbelt, Inc., 946 S.W.2d 617, 621 (Tex. App. – Fort Worth 1997, no

4. the right to require the independent subcontractor to comply with laws, ordinances, rules, and regulations covering the construction; and

5. the authority to specify the types of insurance coverage the independent subcontractor must have.

In that case, an experienced welder fell from his own portable scaffold at the job site after one of his periodic repositionings of the scaffold. The plaintiff welder was a lower-tier subcontractor. Plaintiff’s legal theories included the negligent hiring of the welder’s higher-tier subcontractor. The appellate court considered the elements of proximate cause (foreseeability, and cause in fact), observing that proximate cause can be a question of law when the relationship of the injury and the alleged proximate cause is attenuated or remote. Based on the facts of the case, the appellate court found as a matter of law no proximate cause between the injury and hiring practices. There was no reasonable foreseeability that, in the chain of subcontractor hiring, the injured plaintiff would some day render his own scaffold unstable. Hiring of subcontractors was found not to be a substantial factor in the injury. Therefore, unless a contractor has direct control over the selection of subcontractors, a negligent hiring theory should not create liability for injury to the subcontractor’s injured employee.

These principles were employed in the Fort Worth Adventist case:

Owners or occupiers of land generally have no duty to see that independent contractors perform work in a safe manner.49 Where an independent subcontractor has control of the work and the responsibility for doing the work in a safe manner, if danger

49

Campbell v. Adventist, 946 S.W. 2d at 621, citing to Exxon Corp. v. Quinn, 726 S.W. 2d 17, 19 (Tex. 1987); Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985).

arises from the manner in which the independent subcontractor’s employees perform that work, the consequences of the dangerous performance belong to the independent subcontractor, not the contractor (or premises owner).50The contractual right of control of the work, regardless of its actual exercise, gives rise to the duty to see that an independent subcontractor performs his work in a safe manner.51 When contractors retain rights to control work, failure to exercise control does not dissolve potential liability for injuries to the employees of independent subcontractors.52 The degree of control was distinguished from that of Redinger, where RESTATEMENT (SECOND) OF TORTS Section 414 was first adopted in Texas. The Fort Worth Court of Appeals harmonized the situation with the

Redinger degree of control (as specified in Restatement Section 414) by noting that: (1)

the contract only required the work to be done “as soon as possible;” (2) that if lower-tier subcontractors were hired, the same prime contract form must be used; and (3) that requiring reasonable safety measures to be followed, did not constitute a retention of the means, methods, or details of the work, nor did the requirement that the subcontractor follow the law. The Fort Worth Court of Appeals also found that imposing certain insurance coverage on the subcontractor was merely a contract condition unrelated to the method and manner in which the work would be done.

50

Campbell v. Adventist, 946 S.W. 2d at 621, citing to Abolos v. Oil Dev. Of Texas, 544 S.W.2d 627, 631 (Tex.

1976). 51

Pollard v. Missouri Pac. R.R., Co., 759 S.W.2d 670, 671 (Tex. 1988).

52

Statutory Relief

Clarification of the common law in the courts was aided by the Texas Legislature in1995.53 The addition of Chapter 95 to the Remedies Code provided contractors some important relief. Under the new Code provisions, contractors in commercial settings have no liability for injury arising from any failure to provide safe workplaces unless contractors fail to warn of danger when they control54 the work done on improvements to the premises and unless they have actual knowledge of the dangerous conditions.55 This provision tracks the common law, but an important aspect is added: contractors must have

actual knowledge of the dangerous conditions on the premises,56which relaxes the higher standard of care owed to a business “invitee,” as opposed to a “licensee”57such as a social guest.58

Lewis Construction v. Harrison (2001)

The Lewis case should have answered a number of questions on contractor liability for worker injury on contractor premises. 59 In that case, a subcontractor’s employee fell

53

Although enacted in 1995, Chapter 95 did not take effect under September 1, 1996, and applies only to a cause of action that accrues on or after that date. Acts 1995, 74thLegis., Ch. 136b4.

54

The statute leaves the question of whether there is “control” to existing common law. 55

See Fisher v. Lee and Chang Partnership, 16 S.W.3d 198 (Tex. App. -- Houston [1stDist.] 2000, pet. denied). 56

The usual elements of a claim by an invitee are: (1) the owner or occupier’s actual or constructive knowledge of a condition on the premises; (2) the condition posed an unreasonable risk of harm; (3) the owner or occupier did not exercise reasonable care to reduce or eliminate the risk; and (4) the owner or occupier’s failure to use such care proximately caused the plaintiff’s injury. See CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000). Adequate warning is an alternative to making the premises reasonably safe. See State v. Williams, 940 S.W.2d 583,584 (Tex. 1996) (per curiam).

57

See State Dept. of Highways v. Payne, 838 S.W.2d 235, 237 (Tex. 1992).

58

Duty owed to a licensee: not to injure willfully, wantonly, or by gross negligence, and to warn of or make safe known dangerous conditions. City of El Paso v. Zarate, 917 S.W.2d 326, 331 (Tex.App. - El Paso 1996, no writ). 59

to his death from a building under construction. The issues presented to the supreme court included three questions:

1. Can a contractor who requires subcontractors to follow the contractor’s general safety rules be liable for negligence in the absence of a finding that those safety rules unreasonably increased the risk of harm to a subcontractor’s employee?

6. Can terms of a general contract granting a contractor the right to control the work of a subcontractor be used to assign liability to the contractor for employee injury even though written subcontracts between the working parties expressly provide no such right of control but require the subcontracting parties to assume responsibility for all aspects of their work, including safety?

7. Can the contractor be liable for injury to the subcontractor’s worker on a negligence theory where there is legally insufficient evidence to show that the contractor retained a contractual right to control the details of the work or actually exercised such control with respect to the injury-causing activity? In its December 2001 opinion, however, the supreme court failed to reach these issues because it found more than a scintilla of evidence that the contractor’s superintendent was actually aware of and approved the fall-protection systems used by the subcontractor’s employees. Because the supreme court found actual control by the contractor, the court did not address the contractor’s argument that it had no contractual right of control.60

The supreme court also rejected the contractor’s arguments that, because no one saw the subcontractor’s employee fall, there was no evidence that the contractor’s conduct was the cause in fact of the employee’s death. The supreme court found evidence that the contractor required its own employees to use independent lifelines, but allowed the

60

subcontractor’s employees to perform their hazardous work without such lifelines.61 Because an independent lifeline would have stopped the employee’s fall before it became fatal, the court reasoned that the contractor’s failure to enforce its own safety rules with respect to subcontractors was a cause in fact of the employee’s death. Further, the employee’s death was foreseeable, inasmuch as the owner-contractor testified that “he knew that falls were one of the top causes of death in multi-story construction.”62 Having satisfied the two requisite elements of negligence, plaintiffs established that contractor negligence was a proximate cause of the employee’s death. Moreover, the court focused on these same facts to uphold a finding of contractor gross negligence .63

The supreme court reiterated in Lewis the evolution of appellate decisions over the years, but the court ultimately failed to resolve significant unanswered questions concerning the effect of contractual provisions on contractor liability. Relying on what the supreme court obviously considered egregious facts, the court declined to add more flesh to the bones of existing case law concerning contractor liability for injury to workers employed by independent subcontractors.

Most troubling about Lewis, perhaps, is the portion of the intermediate appellate court’s decision64 left without comment by the supreme court. In the contract (the

61

Lewis, 70 S.W. 3d at 784.

62

Lewis, 70 S.W. 3d at 785.

63

The contractor was grossly negligent because its failure to require the use of independent lifelines posed an extreme risk and the contractor actually knew and approved of the unsafe practices of the subcontractor’s employees. 70 S.W.3d at 786. Interestingly, an OSHA inspector saw the subcontractor’s system in use and “raised no objection.” 70 S.W.3d at 791 (Hecht’s concurring opinion).

64

“primary contract”) between the premises owner and the contractor, the contractor agreed to be responsible for all safety precautions and programs and to take all reasonable precautions for the safety of all employees on the job, including the premises owner and “other separate contractors.”65 In finding that the contractor had a contractual right (and therefore a duty) to control safety, the Amarillo Court of Appeals not only made every subcontractor on the job a de facto third party beneficiary of the primary contract, but it also in effect created a non-delegable duty on the part of the contractor with respect to safety matters.

Conclusion

By declining in Lewis, to reach the contractual issues of “control,”, the Texas Supreme Court passed up an opportunity to clarify its 1999 decision in Elliot-Williams

Co., Inc. v. Diaz.66 In Diaz, the Supreme Court concluded that even though the contract between the contractor and the premises owner required the contractor to be “fully responsible for the actions of all employees and contracted representatives,” the contractor had no duty to a third party who was injured by the subcontractor’s negligence because the contract did not “require [the contractor] to control the means, methods, or details of [the subcontractor’s] work.”67 The clear implication is that if the contract does require the contractor to, for example, control all safety aspects of the job, then a contractor may have a duty with respect to a subcontractor’s employee even if the contract between the

65 Lewis, 64 S.W.3d at 8. 66 9 S.W.3d 801. 67 Diaz, 9 S.W.3d at 805.

Page 17 of 17

contractor and the subcontractor does not provide for such control. Until this issue is resolved, contractors will have one more trap to avoid (i.e., their contracts with the premises owner) if they want to ensure subcontractor responsible for the safety and welfare of the subcontractor’s own employees or of third parties affected by the subcontractor’s work.

When the contractor in Lewis asked the supreme court for a rehearing after its December 2001 decision, the following provocative introductory statement was asserted in the (subsequently overruled) motion for rehearing:

If this Court’s Opinion stands unchanged on rehearing, it will cause general contractors to become insurers of every person that works on a construction site. It will make general contractors who sign standard AIA form contracts liable in virtually every instance for the acts of subcontractors and injuries to subcontractor employees, even though, as in this case, (1) the subcontractors possess much more proficiency in the operational details and safety issues concerning their work than the general contractor, and (2) the contracts provided and the parties agreed that the subcontractor would retain primary control over its part of the work and its safety precautions.68

68

Petitioner’s Motion For Rehearing and For New Oral Argument, at 1, filed Feb. 4, 2002 in the Supreme Court of Texas, Cause No. 99-0793.