Centerpoint Builders Gp, LLC and Centerpoint Builders, Ltd. v. Trussway, Ltd. ( 2016 )

IN THE SUPREME COURT OF TEXAS
══════════
No. 14-0650
══════════
CENTERPOINT BUILDERS GP, LLC AND CENTERPOINT BUILDERS, LTD.,
PETITIONERS,
v.
TRUSSWAY, LTD., RESPONDENT
══════════════════════════════════════════
ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE NINTH DISTRICT OF TEXAS
══════════════════════════════════════════
Argued November 2, 2015
JUSTICE LEHRMANN delivered the opinion of the Court, in which CHIEF JUSTICE HECHT,
JUSTICE GREEN, JUSTICE WILLETT, JUSTICE GUZMAN, JUSTICE DEVINE, and JUSTICE BROWN joined.
JUSTICE BOYD filed a dissenting opinion, in which JUSTICE JOHNSON joined.
Texas Civil Practice and Remedies Code chapter 82 entitles the “seller” of a defective
product to indemnity from the product manufacturer for certain losses. In this case, the general
contractor hired to construct an apartment complex seeks indemnity under chapter 82 from the
manufacturer of wooden trusses used in roofing and drywall projects on the site. The sole issue is
whether the general contractor qualifies as a truss seller under chapter 82. The trial court held that
it does, but the court of appeals disagreed and rendered judgment for the manufacturer on the
indemnity claim. Applying chapter 82’s definition of “seller,” we agree with the court of appeals
that the general contractor is not a seller and affirm the court’s judgment.
I
Glenmont Madison Beaumont LLC hired Centerpoint Builders, Ltd. (now known as
Centerpoint Builders, LLC) as the general contractor to build the Beaumont Trace Apartments.
Centerpoint subcontracted with McEvers Maverick Builders to install sheetrock and drywall, and
with Sandidge & Associates, Inc. to install wooden roof trusses.1 Centerpoint purchased the
trusses directly from their manufacturer, Trussway, Ltd.
The underlying lawsuit arose when Merced Fernandez, an independent contractor hired by
Sandidge, stepped onto a truss that had been laid in position but not yet installed. Fernandez was
carrying sheetrock while walking across the trusses above the second story. A truss broke and
Fernandez fell eight to ten feet, rendering him paraplegic. Fernandez sued Glenmont, Centerpoint,
Maverick, Sandidge, and Trussway for, among other related claims, failing to use reasonable and
appropriate care to correct, remedy, or warn of an unreasonably unsafe condition on the property,
failing to adequately supervise, failing to use good quality building materials, and negligently
designing, manufacturing, and testing the truss. Fernandez ultimately settled with all defendants.
Centerpoint filed a cross-action against Trussway for statutory indemnity, alleging that
Trussway, the truss manufacturer, was legally required to indemnify Centerpoint, the truss seller,
for any loss arising from Fernandez’s suit. Trussway responded with its own indemnity crossclaim
against Centerpoint.
Centerpoint and Trussway filed cross-motions for summary judgment. Centerpoint also
sought partial summary judgment on its own claim, arguing that it was a seller under chapter 82
1
Trusses are wooden beams that are nailed together to support a building’s roof.
2
and was entitled to indemnity as a matter of law. The trial court granted Centerpoint’s motion as
to Trussway’s claim. With respect to the motions on Centerpoint’s claim, the court held as a matter
of law that Centerpoint was a seller under chapter 82, but otherwise denied both parties’ requests
for summary judgment. The trial court certified its order for interlocutory appeal. TEX. CIV. PRAC.
& REM. CODE § 51.014(d) (allowing a trial court to permit an interlocutory appeal of an otherwise
unappealable order if certain conditions are met).
The court of appeals reversed in part, holding that Centerpoint did not fit the statutory
definition of a seller and was not eligible to seek indemnity. 436 S.W.3d 882, 888 (Tex. App.—
Beaumont 2014). The court of appeals also affirmed the trial court’s summary judgment in
Centerpoint’s favor on Trussway’s cross-claim because Centerpoint did not manufacture the truss
and therefore was not obligated to indemnify Trussway. Id. at 889. Only Centerpoint filed a
petition for review, presenting as its sole issue whether the court of appeals erred in holding
Centerpoint was not a seller. Centerpoint contends that the court of appeals’ analysis conflicts
with our opinion in Fresh Coat, Inc. v. K-2, Inc., 318 S.W.3d 893 (Tex. 2010),2 and that the trial
court correctly recognized Centerpoint’s seller status.
II
The Texas Products Liability Act gives the innocent seller of an allegedly defective product
a statutory right to indemnity from the product’s manufacturer for losses arising out of a products-
liability action. Petroleum Sols., Inc. v. Head, 454 S.W.3d 482, 491 (Tex. 2014). This statutory
2
We have jurisdiction over interlocutory appeals in which the court of appeals “holds differently from a prior
decision of” this Court, meaning “there is inconsistency in the[] respective decisions that should be clarified to remove
unnecessary uncertainty in the law and unfairness to litigants.” TEX. GOV’T CODE § 22.225(c), (e). The parties present
a genuine dispute about whether the court of appeals correctly applied Fresh Coat, revealing uncertainty to be clarified
in this area.
3
right is “in addition to any duty to indemnify established by law, contract, or otherwise.” TEX.
CIV. PRAC. & REM. CODE § 82.002(e)(2). In construing the Act, as with any statute, we start with
the “ordinary meaning of the statutory text.” In re Ford Motor Co., 442 S.W.3d 265, 271 (Tex.
2014). We analyze that language in context, considering the specific sections at issue as well as
the statute as a whole. CHCA Woman’s Hosp. v. Lidji, 403 S.W.3d 228, 231–32 (Tex. 2013).
While we are limited to the statute’s text, “we must attempt to give effect to every word and
phrase,” and we may not omit or gloss over verbiage in an attempt to reclaim clarity. Abrams v.
Jones, 35 S.W.3d 620, 625 (Tex. 2000). We “presume[] the Legislature deliberately and
purposefully selects words and phrases it enacts, as well as deliberately and purposefully omits
words and phrases it does not enact.” Tex. Mut. Ins. Co. v. Ruttiger, 381 S.W.3d 430, 452 (Tex.
2012).
The Act’s indemnity provision states:
A manufacturer shall indemnify and hold harmless a seller against loss arising out
of a products liability action, except for any loss caused by the seller’s negligence,
intentional misconduct, or other act or omission, such as negligently modifying or
altering the product, for which the seller is independently liable.
TEX. CIV. PRAC. & REM. CODE § 82.002(a). “Products liability action” is broadly defined as “any
action against a manufacturer or seller for recovery of damages arising out of personal injury,
death, or property damage allegedly caused by a defective product.” Id. § 82.001(2). The term
includes “all direct allegations against the seller that relate to plaintiff’s injury.” Meritor Auto.,
Inc. v. Ruan Leasing Co., 44 S.W.3d 86, 90 (Tex. 2001).
We have explained that the “purpose of section 82.002 is to protect innocent sellers by
assigning responsibility for the burden of products-liability litigation to product manufacturers.”
Petroleum Sols., 454 S.W.3d at 494. To that end, the duty to indemnify is triggered by allegations
4
in the injured claimant’s pleadings of a defect in the manufacturer’s product, regardless of any
adjudication of the manufacturer’s liability to the claimant. Gen. Motors Corp. v. Hudiburg
Chevrolet, Inc., 199 S.W.3d 249, 255 (Tex. 2006); see Owens & Minor, Inc. v. Ansell Healthcare
Prods., Inc., 251 S.W.3d 481, 484 (Tex. 2008) (“The manufacturer’s duty begins when it is given
notice that a seller has been sued.”). The manufacturer may “escape this duty to indemnify” by
proving that the seller’s “acts or omissions independent of any defect in the manufactured product
cause[d] injury.” Hudiburg, 199 S.W.3d at 252, 255.
While the scope of a manufacturer’s duty to indemnify is often described as broad, it is
owed only to sellers, and an indemnity claimant’s seller status is a necessary prerequisite to
maintaining a claim. Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 867 (Tex.
1999) (“Anyone who qualifies as a ‘seller’ may seek indemnification, subject to the limitations of
section 82.002(a).”). The Act defines “seller” as “a person who is engaged in the business of
distributing or otherwise placing, for any commercial purpose, in the stream of commerce for use
or consumption a product or any component part thereof.” TEX. CIV. PRAC. & REM. CODE
§ 82.001(3).3
The statute does not define the phrase “engaged in the business of.” Black’s Law
Dictionary defines “engaged” as “to employ or involve oneself; to take part in; to embark on.”
3
To the extent any question lingers as to whether the pleadings trigger seller status rather than the facts and
evidence, we answer that question in the negative. Our precedent consistently determines seller or manufacturer status
based on the evidence, and nothing in section 82.002(a) or the statute’s purpose supports allowing the pleadings to
dictate whether a party qualifies as a manufacturer or seller. See, e.g., Fresh Coat, 318 S.W.3d at 899 (analyzing the
evidence to conclude that Fresh Coat was a seller); Fitzgerald, 996 S.W.2d at 867 (noting that the definition of seller
included the petitioner, “who sells spinal fixation devices, a product, for use by its customers”); see also Hadley v.
Wyeth Labs., Inc., 287 S.W.3d 847, 850 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) (noting that chapter 82’s
expansion of a seller’s indemnity rights by allowing the duty to indemnify to be triggered by allegations “does not
suggest an additional legislative intent to also broaden the scope of defendants who are considered sellers”).
5
BLACK’S LAW DICTIONARY 646 (10th ed. 2014); State Office of Risk Mgmt. v. Carty, 436 S.W.3d
298, 302 (Tex. 2014) (noting that “[u]ndefined terms in a statute are typically given their ordinary
meaning [unless] a different or more precise definition is apparent from the term’s use in the
context of the statute” (citation and internal quotation marks omitted)). “Business” is defined as a
“commercial enterprise carried on for profit; a particular occupation or employment habitually
engaged in for livelihood or gain.” BLACK’S LAW DICTIONARY at 239. And the similar phrase
“doing business” is defined as “the carrying out of a series of similar acts for the purpose of
realizing a pecuniary benefit.” Id. at 590. Our analysis cannot begin and end with the definitions
of individual words, however, because the Legislature used an entire phrase: “engaged in the
business of.” See In re Office of Atty. Gen., 422 S.W.3d 623, 629 (Tex. 2013) (“We must endeavor
to read the statute contextually, giving effect to every word, clause, and sentence.”).
Centerpoint argues that it is a truss seller entitled to indemnity from the truss manufacturer
for Centerpoint’s losses arising out of this lawsuit, in which Fernandez alleged in part that a
defective truss caused his injuries. Like the court of appeals, our inquiry is limited to Centerpoint’s
seller status.
III
A
Whether a general contractor may seek statutory indemnity as a seller of materials used in
a building’s construction is an issue of first impression in this Court. We addressed the seller
status of a subcontractor in Fresh Coat and begin with that case, cited extensively by both the
parties and the court of appeals.
6
Fresh Coat contracted with a homebuilder to install synthetic stucco components
(collectively referred to as EIFS, or exterior insulation and finishing system) on the exterior walls
of several homes. Fresh Coat, 318 S.W.3d at 895. The contract required Fresh Coat to provide
“labor, services and/or materials, equipment, transportation, or facilities” necessary to apply and
finish the synthetic stucco. Id. at 899 (internal quotation marks omitted). Fresh Coat purchased
EIFS components from their manufacturer and installed them pursuant to Fresh Coat’s contract
with the builder. Id. at 895. After moving in, more than 90 homeowners sued Fresh Coat, the
EIFS manufacturer, and the builder, alleging the EIFS allowed water penetration that damaged
their homes. Id. The builder sought indemnity from Fresh Coat and the manufacturer, and Fresh
Coat in turn sought indemnity from the manufacturer. Id. at 896. The homeowners settled with
all defendants, and Fresh Coat settled with the builder. Id. At issue in the court of appeals and
this Court was a judgment in Fresh Coat’s favor on its indemnity claim against the manufacturer.
The builder’s indemnity claims were not before us.
The issue pertinent to this case was whether Fresh Coat qualified as a seller. Rejecting the
manufacturer’s characterization of Fresh Coat as a service provider and not a product seller, we
held that chapter 82 “anticipates that a product seller may also provide services” and that a
company’s “installation services do not preclude it from also being a seller.” Id. at 899. We agreed
with the court of appeals that Fresh Coat presented legally sufficient evidence it was a seller
entitled to seek indemnity under chapter 82 even though the stucco was a component part of
improved real property, which is not considered a product. Id. at 898–99; see also RESTATEMENT
(THIRD) OF TORTS: PROD. LIAB. § 19 cmt. e (1998) (“Traditionally, courts have been reluctant to
7
impose products liability on sellers of improved real property in that such property does not
constitute goods.”).
Centerpoint contends that, like Fresh Coat, it is both a product seller and a service provider.
It argues that the contract and truss purchase order show that Centerpoint was “in the business of
placing the trusses, for a commercial purpose (fulfilling its contract to build the apartment
building), into the stream of commerce for use or consumption.” Trussway responds that
Centerpoint, like most builders, “is ‘engaged in the business’ of selling construction services,” not
building materials. For the reasons discussed below, we agree with Trussway.
In holding that Fresh Coat was a seller, we relied in part on witness testimony that the
company was “in the business of providing EIFS products combined with the service of EIFS
installation.”4 Fresh Coat, 318 S.W.3d at 899. But we did not elaborate on the contents of that
testimony, instead addressing and rejecting the manufacturer’s legal argument that Fresh Coat was
precluded from being a seller because it also provided installation services. Id. Further, the
contractor at issue in Fresh Coat sold and installed a particular product, and we were not required
to consider how and if the analysis would be affected if the person seeking seller status were a
general contractor constructing an improvement to real property. Accordingly, we find guidance
in case law on more factually similar footing.
4
We also noted that Fresh Coat had installed the EIFS pursuant to the manufacturer’s instructions, which
was significant in light of section 82.002(d)’s recognition that “a wholesale distributor or retail seller who completely
or partially assembles a product in accordance with the manufacturer’s instructions shall be considered a seller.” Fresh
Coat, 318 S.W.3d at 899 (quoting TEX. CIV. PRAC. & REM. CODE § 82.002(d)). This provision does not apply here.
8
B
In evaluating Centerpoint’s seller status, we do not examine whether Centerpoint has ever
sold trusses, but whether Centerpoint is “engaged in the business of” selling trusses. Aside from
the court of appeals’ opinion in this case, we have found few Texas cases addressing whether a
general contractor is a seller of the materials it incorporates into construction projects. But the
cases we have found, which typically involve whether a general contractor is a seller for strict-
liability purposes, are consistent with the court of appeals’ conclusion that Centerpoint is not a
seller. In Barham v. Turner Construction Co. of Texas, for example, the plaintiff, injured during
construction of an office building when a steel column fell and struck his head, sued the general
contractor hired to construct the building. 803 S.W.2d 731, 734 (Tex. App.—Dallas 1990, writ
denied). The trial court refused to submit jury questions and instructions on the plaintiff’s
products-liability claim against the contractor, and the court of appeals agreed, holding that the
contractor was not a seller with respect to the steel columns. Id. at 737–38. Examining the
distinction between a company in the business of selling its services and a company in the business
of selling products, the court explained:
Turner Construction is in the business of selling its services as a general contractor.
We find nothing in the record to indicate that Turner Construction is in the business
of selling the steel columns and erection plates which caused Barham’s injury. Any
alleged “sale” of the steel columns by Turner Construction was incidental to its
contract to provide the services necessary to construct a building.
Id. at 738; cf. Peterson Homebuilders, Inc. v. Timmons, No. 14-03-00400-CV, 2004 WL 1660936,
at *5 (Tex. App.—Houston [14th Dist.] July 27, 2004, no pet.) (mem. op.) (holding that a
subcontractor that built a foundation pad for a house did not owe the general contractor a duty to
9
indemnify because the subcontractor “did not place this structural pad in the stream of
commerce”).5
Case law from other jurisdictions, while sparse, also supports a determination that general
contractors typically are not “engaged in the business of” selling or distributing the materials used
in constructing a particular improvement. In Maack v. Resource Design & Construction, Inc.,
homeowners sued the builder for strict liability, alleging that defects in the home’s exterior
components led to water leaks. 875 P.2d 570, 573 (Utah Ct. App. 1994), abrogated in part on
other grounds by Davencourt at Pilgrims Landing Homeowners Ass’n v. Davencourt at Pilgrims
Landing, LC, 221 P.3d 234 (Utah 2009). The Utah Court of Appeals held that the builder was not
a “seller” of the house’s exterior component parts, explaining: “The evidence is undisputed that
[the contractor and its owner] were construction contractors who simply utilized these component
parts when constructing the residence—they were not in the business of selling stucco, adhesives,
or membranes on a wholesale or retail basis.” Id. at 581; compare Fresh Coat, 318 S.W.3d at 899
5
We recognize that the issue in many of these cases was whether the plaintiff could maintain a common-law
strict-liability claim against a general contractor as a seller, not whether the contractor could bring a statutory-
indemnity claim as a seller. E.g., Barham, 803 S.W.2d at 734. However, the Legislature chose to define “seller” in
chapter 82 just as we have construed the term for strict-liability purposes. Strict liability is limited to those “engaged
in the business of selling” a product, which we have long interpreted to include those “engaged in the business of
introducing the products into channels of commerce.” Armstrong Rubber Co. v. Urquidez, 570 S.W.2d 374, 375 (Tex.
1978). “Seller” in turn is defined in the Products Liability Act as “a person who is engaged in the business of
distributing or otherwise placing, for any commercial purpose, in the stream of commerce for use or consumption a
product or any component part thereof.” TEX. CIV. PRAC. & REM. CODE § 82.001(3). We presume the Legislature
was aware of our case law when it enacted a substantially similar definition of “seller” in the Products Liability Act.
In re Allen, 366 S.W.3d 696, 706 (Tex. 2012) (“A statute is presumed to have been enacted by the legislature with
complete knowledge of the existing law and with reference to it.” (internal quotation marks and citation omitted)).
Oddly, by arguing that it is a seller for statutory-indemnity purposes, Centerpoint is essentially conceding that it would
be a seller for purposes of a strict-liability claim brought by an injured party.
10
(noting the evidence that the indemnity claimant was “in the business of providing EIFS products
combined with the service of EIFS installation”).
Other cases take a similar approach in denying seller status to contractors whose business
is providing construction services, not any particular building material that may be utilized in that
process. See, e.g., Calloway v. City of Reno, 993 P.2d 1259, 1272 (Nev. 2000) (“Although a
contractor may, as part of a construction or remodeling project, install certain products, a
contractor, without doing more, is not engaged in the business of ‘manufacturing’ or selling such
products and therefore does not come within the ambit of [strict products liability].”), superseded
by statute on other grounds, NEV. REV. STAT. § 40.635, as recognized in Olson v. Richard, 89 P.3d
31 (Nev. 2009); Scordino v. Hopeman Bros., 662 So. 2d 640, 645 (Miss. 1995) (holding that a
subcontractor hired to build the interior outfitting of a ship, which included providing the necessary
services and materials, was not a “seller” of the wall paneling it provided and installed under the
contract); compare State Stove Mfg. Co. v. Hodges, 189 So. 2d 113, 115, 123–24 (Miss. 1966)
(holding that contractors that installed a water heater as part of their construction of a residence
were subject to strict liability because they also operated the hardware store that sold the water
heater to the homeowners), superseded by statute on other grounds, MISS. CODE ANN. § 11-1-63,
as recognized in Huff v. Shopsmith, Inc., 786 So. 2d 383 (Miss. 2001).6
6
In classifying general contractors in contexts other than indemnity and strict liability, courts similarly focus
on the fact that contractors’ businesses involve the rendition of construction services, while “the materials that pass
are incidental.” State, Dept. of Revenue v. Debenham Elec. Supply Co., 612 P.2d 1001, 1002–03 (Alaska 1980)
(holding that contractors were not “dealers” of products for sales tax purposes); Nixon v. U. S. Fid. & Guar. Co., 290
So. 2d 26, 27–29 (Fla. 1973) (holding that “products–completed operations” exclusion in general contractor’s liability
policy did not preclude coverage and noting the “significance that [the insured] is engaged in the general contracting
business; he is not a manufacturer or seller of goods or products”); Material Serv. Corp. v. McKibbin, 43 N.E.2d 939,
946 (Ill. 1942) (“A contractor holds himself out to the public as having the skill and knowledge necessary to the
construction of certain improvements. He does not represent himself as being engaged in the business of selling
building material.”).
11
We agree with the reasoning of these cases and hold that one is not “engaged in the business
of” selling a product if providing that product is incidental to selling services. Applying that
standard here requires the conclusion that Centerpoint is not a truss “seller” entitled to seek
indemnity from the manufacturer. To that end, whether Centerpoint technically sold trusses to
Glenmont does not make it “engaged in the business of” commercially distributing that product.7
As in Barham, any “‘sale’ of [trusses] by [Centerpoint] was incidental to its contract to provide
the services necessary to construct a building.”8 Barham, 803 S.W.2d at 738. This is consistent
with the way the materials were priced in the contract. Centerpoint did not set prices on the
materials to achieve a gain or profit;9 it was effectively reimbursed for the cost of materials that
were necessary to complete construction.10
7
By way of example, consider a hair salon that offers haircuts that include a wash and style. When the client
walks out of the salon, she has shorter hair, but she also has a head full of hair product. The price of the haircut will
inevitably include the cost of the product that was used. Still, a hairdresser is in the business of selling haircuts, not
selling handfuls of mousse. One does not go to the hair salon to acquire a dollop of moisturizing serum and a few
spritzes of hairspray, just as a person does not retain a general contractor to acquire trusses.
8
Centerpoint’s standard form contract with Glenmont provided that Centerpoint “shall fully execute the
Work described in the Contract Documents.” The term “Work” was defined in an ancillary document as “the
construction and services required by the Contract Documents, whether completed or partially completed, and
includes all other labor, materials, equipment and services provided or to be provided by [Centerpoint] to fulfill
[Centerpoint’s] obligations. The Work may constitute the whole or a part of the Project.” In turn, “Project” is defined
as “the total construction of which the Work performed under the Contract Documents may be the whole or a part and
which may include construction by [Glenmont] and by separate contractors.” Tellingly, the focus of the “Work” and
the “Project” is “construction and services,” and materials were ancillary to those services. By contrast, Fresh Coat’s
contract to install EIFS placed “labor, services and/or materials” on equal footing. Fresh Coat, 318 S.W.3d at 899.
We therefore disagree with the dissent’s contention that the two contracts contain no “relevant differences,” post at
___, and, in any event, the contract language is but one consideration in our analysis.
9
The “Contract Sum,” constituting “the total amount payable by the Owner to the Contractor for performance
of the Work under the Contract Documents,” was a stipulated lump sum subject to certain authorized additions and
deductions. That sum included allowances for materials and equipment delivered at the site. If the actual costs were
greater or less than the allowances, Centerpoint was to submit a change order.
10
The dissent dismisses this consideration, citing examples of companies that may be engaged in the business
of selling a product even if they do not seek to profit from the specific sales giving rise to an indemnity claim. Post
at ___. But we are not mandating a profit-seeking motive as a prerequisite to seller status; we are simply identifying
the pricing structure in Centerpoint’s contract as pertinent to what it is “engaged in the business of” doing.
12
In turn, as the court of appeals noted, “Centerpoint’s contract with the property owner
covered innumerable construction products and materials that would be involved in the
construction of the apartment complex.” 436 S.W.3d at 888. And that is the nature of a general
contractor’s business when it builds based on custom designs and specifications, as the materials
required for a particular project will vary. See RESTATEMENT (THIRD) OF TORTS: PROD. LIABILITY
§ 19 cmt. e (1998) (“A housing contractor, building and selling one house at a time, does not fit
the pattern of a mass producer of manufactured products . . . .”). Although the quantity of
materials used is not dispositive, we agree with Trussway’s contention that “the fact that
Centerpoint used innumerable building materials supports the conclusion that any single material
was incidental to its provision of construction services.”
In sum, we hold that a general contractor who is neither a retailer nor a wholesale
distributor of any particular product is not necessarily a “seller” of every material incorporated
into its construction projects for statutory-indemnity purposes. Whether a person or entity is
“engaged in the business of” selling a service, selling a product, or doing both (as in Fresh Coat)—
regardless of the person’s classification as a general contractor or subcontractor—depends upon
the specific facts at issue. In this case, evidence that the general contractor agreed to undertake
construction of the entire building and to be reimbursed for the cost of the materials (including the
trusses) indicates that Centerpoint was selling construction services rather than trusses or other
building materials. While some contractors may engage in the business of selling both products
and services, the record is devoid of evidence that Centerpoint was doing so here. Instead, the
record shows that any sale of the trusses by Centerpoint “was incidental to its contract to provide
the services necessary to construct a building.” Barham, 803 S.W.2d at 738. Because Centerpoint
13
was “engaged in the business” of providing a service, and its provision of trusses was incidental
to that service, Centerpoint is not a “seller” under the Products Liability Act.11
C
Finally, we address the dissent’s reliance on two cases from this Court that purportedly
support the dissent’s conclusion that Centerpoint is a seller. Neither of those cases involves
contractors, and neither supports the dissent’s position.
In Barbee v. Rogers, we held that the plaintiff could not pursue a strict-liability claim
against licensed optometrists for failing to properly fit prescribed contact lenses to the plaintiff’s
eyes. 425 S.W.2d 342, 346 (Tex. 1968). We explained that the optometrists’ activities “fall
between those ordinarily associated with the practice of a profession and those characteristic of a
merchandising concern.” Id. at 345. In rejecting the strict-liability claim, we noted that in addition
to “the disqualifying factor of the professional relationship,” the claim was “not premised on any
defect in the lenses as such.” Id. at 346.
The dissent extrapolates from this statement that, had such a defect been alleged, “the
optometrist would have been a ‘seller’ subject to strict liability even though the sales were
incidental to the defendant’s optometric services.” Post at ___. But Barbee simply does not
support this assertion. First, what we would have held in the event the plaintiff asserted a
hypothetical defective-lens claim is not at all obvious, particularly in light of the professional
relationship between the parties. See Barbee, 425 S.W.2d at 346. Further, the dissent assumes
11
In reaching the opposite conclusion, the dissent implies that we have “stray[ed] from the plain language of
a statute.” Post at ___. Statutes are not always clear, and interpreting them can be a difficult task. That the Court and
the dissent disagree on the ultimate interpretation of a statutory provision does not mean that either has “encroach[ed]
on the Legislature’s function.” Id. at ___.
14
that product sales in Barbee were incidental to services, but we described evidence indicating the
opposite, noting the defendants’ “advertising and sales techniques designed to promote the sale of
contact lenses at a predetermined and advertised price” and “their standardization of procedures
and methods.”12 Id. We simply did not conduct a “seller” analysis, and the dissent’s presumption
about the outcome of such an analysis is neither helpful nor justified.
The dissent also cites New Texas Auto Auction Services, L.P. v. Gomez de Hernandez, in
which we held that an auctioneer who conducted sales of automobiles was not a seller subject to
strict liability. 249 S.W.3d 400, 405–06 (Tex. 2008). The parties in that case agreed that
auctioneers are generally not considered sellers, and disputed only the significance of the fact that
the defendant atypically held title to the allegedly defective vehicle when it was sold. Id. at 405.
We found that fact immaterial, noting that strict liability “applies to those whose business is selling,
not everyone who makes an occasional sale.” Id. We agree with this broad proposition; however,
our analysis in New Texas Auto of whether an auctioneer was a seller is of little help in this factually
dissimilar case.
IV
The Products Liability Act defines “seller” not simply as “a person who sells” or “a person
who places a product in the stream of commerce,” but as a person “engaged in the business of”
commercially distributing products. We may not ignore the Legislature’s prudently selected
words, lest we stray from the statute’s plain language. Centerpoint has not shown that it is
“engaged in the business of” commercially distributing or placing trusses in the stream of
12
No such evidence was presented in this case.
15
commerce. Accordingly, Centerpoint is not a “seller” entitled to seek indemnity under chapter 82.
We affirm the court of appeals’ judgment.
_________________________________
Debra H. Lehrmann
Justice
OPINION DELIVERED: June 17, 2016
16