Court of Appeals of Texas,

Houston (14th Dist.).

KRUEGER ENGINEERING & MANUFACTURING COMPANY, INC., Appellant,

v.

ADMIRAL TRUCK SERVICES, LTD., Appellee.

No. 14-01-00035-CV.

|

April 18, 2002.

OPINION

KEM THOMPSON FROST, Justice.

*1 In this contractual indemnity case, appellant/indemnitee Krueger Engineering & Manufacturing Company, Inc. (“KEMCO”) appeals a summary judgment granted in favor of appellee/indemnitor Admiral Truck Services, Limited. We reverse in favor of KEMCO as to the indemnification claim, and remand this case to the trial court.

I. Factual And Procedural Background

In July 1991, Admiral entered into a contract (the “Transportation Contract”) to provide transportation services for KEMCO. This contract included an indemnity provision whereby Admiral agreed to indemnify KEMCO for all damages sustained by third parties arising from services performed by Admiral, excluding those damages caused solely by the negligence of KEMCO. In 1994, KEMCO’s insurer advised KEMCO that to maintain coverage it must obtain a specific indemnity agreement from all contractors doing business on KEMCO’s premises. Because Admiral was one of its contractors, KEMCO sent a letter to Admiral requesting that Admiral sign the indemnity agreement, add KEMCO to Admiral’s general liability and auto insurance policies, and waive subrogation rights on various insurance policies. KEMCO made it clear that absent Admiral’s agreement to these terms, KEMCO would no longer do business with Admiral. Admiral agreed to the request and its officer, Linda Willis, signed and returned the indemnity agreement (“the Indemnity Agreement”) to KEMCO. Admiral maintains that Willis was acting under duress when she signed the agreement.

After Admiral signed the Indemnity Agreement, the parties continued their business relationship without disruption for three more years. In March 1997, Eillis Lewis Pharis, one of Admiral’s truck drivers, was injured on KEMCO’s premises while loading his truck. Pharis brought a negligence suit against KEMCO. After KEMCO was served with the lawsuit, Jerry Krueger, the KEMCO officer who had negotiated the Indemnity Agreement, notified Admiral of the Pharis claim, and requested defense and indemnification. Krueger met with Admiral and its attorney, at which time Admiral agreed to provide defense counsel and to indemnify KEMCO in the Pharis suit. Despite this agreement, Admiral failed to provide either a defense or indemnification.

KEMCO brought a third party action against Admiral and its insurance carrier. Admiral’s insurance carrier filed a motion for summary judgment contending that a direct action cannot be brought against a third party’s insurance carrier. KEMCO non-suited all claims against Admiral’s insurer and pursued a third party action against Admiral, asserting claims for comparative negligence, contribution, and indemnification. Admiral filed a motion for summary judgment as to all of the claims asserted. Without stating specific grounds, the trial court granted Admiral’s traditional motion for summary judgment. Subsequently, the trial court granted Admiral’s motion to sever the third-party claims from Pharis’s negligence suit against KEMCO. In the negligence suit against KEMCO, the jury found KEMCO 75% negligent. KEMCO settled with Pharis and in March 2001, the trial court granted a motion to dismiss the suit against KEMCO based on this settlement.

*2 On appeal, KEMCO challenges the trial court’s summary judgment. Admiral has filed a motion to dismiss this appeal or affirm summary judgment as to KEMCO’s contribution and comparative-negligence claims. Admiral maintains this court should dismiss this appeal as to these claims.

II. Scope of Appeal and Issues Presented For Review

Admiral is correct in noting that the only claim before this court in this appeal is the indemnification claim. Because KEMCO settled its suit with Pharis, its contribution and comparative-negligence claims against Admiral are no longer viable. See Beech Aircraft Corp. v. Jinkins, 730 S.W.2d 19, 21 (Tex.1987) (holding that a settling party may not seek contribution). Furthermore, as Admiral points out, KEMCO has not assigned error on appeal regarding the trial court’s take-nothing judgment on its contribution and comparative-negligence claims. See San Jacinto River Auth. v. Duke, 7 83 S.W.2d 209, 209-10 (Tex.1990) (stating that it is a “well-established rule that grounds of error not asserted by points of error or argument in the court of appeals are waived”); Fields v. City of Texas City, 864 S.W.2d 66, 68 (Tex.App.-Houston [14th Dist.] 1993, no writ) (holding that court of appeals may not reverse summary judgment on grounds not challenged). Although we agree that KEMCO is no longer asserting its contribution and comparative-negligence claims, we have jurisdiction over KEMCO’s appeal of the trial court’s summary judgment as to the indemnification claim. Therefore, we deny Admiral’s motion to dismiss.

KEMCO contends that the summary judgment should be reversed in its favor because: (1) Admiral did not prove as a matter of law that the Indemnity Agreement does not meet the requirements of the express-negligence doctrine; (2) Admiral did not prove as a matter of law that the Indemnity Agreement does not satisfy the common-law requirements for a binding contract; (3) Admiral did not conclusively prove that the agreement was signed under duress; (4) Pharis’s allegation that KEMCO was negligent does not trigger the sole-negligence exception to the Indemnity Agreement; (5) there was a fact-issue as to whether Pharis’s injuries resulted from the sole negligence of KEMCO unmixed with the fault of any other party; and (6) the workers’ compensation bar contained in Section 417.004 of the Texas Labor Code does not apply because Admiral executed a written agreement with KEMCO assuming liability and because Admiral was a non-subscriber at the time of the accident.

This appeal is based on a grant of summary judgment and the trial court did not specify the grounds on which it relied in granting summary judgment. A party appealing from a summary judgment that does not recite the grounds on which it is granted assumes the burden of pointing the appellate court to competent summary judgment evidence in the record establishing that none of the independent grounds the motion asserted are sufficient to support the judgment. See Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989). Consequently, we must affirm if any of the motion’s grounds are meritorious. See State Farm Fire & Cas.Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993).

*3 As noted, KEMCO has not assigned error on appeal as to the trial court’s judgment dismissing any claims KEMCO asserted against Admiral based on contribution, comparative-negligence, implied common-law indemnity between joint tortfeasors, and contractual indemnity under the 1991 agreement. However, KEMCO has assigned error as to each theory advanced by Admiral in its motion for summary judgment against KEMCO’s claims for contractual indemnity under the Indemnity Agreement. Therefore, we review only the granting of summary judgment as to KEMCO’s claim under the Indemnity Agreement.

III. Standard of Review

The standard for reviewing a summary judgment is whether the successful movant at the trial level carried its burden of showing that there is no genuine issue of material fact and that judgment should be granted as a matter of law. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). In conducting our review, we take as true all evidence favorable to the nonmovant, and we make all reasonable inferences in the nonmovant’s favor. See KPMG Peat Marwick v. Harrison County Housing Finance Corp., 988 S.W.2d 746 (Tex.1999). A movant is entitled to summary judgment when it negates at least one element of the plaintiff’s theory of recovery or pleads and conclusively establishes each element of an affirmative defense. Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997). If a reviewing court finds that the movant has not met its burden, it must reverse and remand the case for further proceedings. See Gibbs v. General Motors Corp., 450 S.W.2d 827, 828-29 (Tex.1970).

IV. Analysis

A. Does the Indemnity Agreement meet the fair notice requirements?

KEMCO contends the trial court erred to the extent it granted summary judgment on the grounds that the Indemnity Agreement is enforceable because it meets the fair notice requirements, which are: (1) the indemnity agreement is conspicuous and gives the indemnifying party (Admiral) adequate notice of its obligations; and (2) the express-negligence doctrine is met and the intent of the parties is obvious from the four corners of the document. KEMCO’s contention that the Indemnity Agreement meets the conspicuousness requirement as a matter of law is undisputed. Thus, we turn to whether the express-negligence doctrine has been met.

Under the express-negligence doctrine, a party seeking indemnity for the consequences of its own negligence must express that intent in specific terms within the four corners of the contract. Ethyl Corp. v. Daniel Const. Co., 725 S.W.2d 705, 707-08 (Tex.1987). In considering KEMCO’s contention that the express-negligence test is satisfied, we must determine whether the Indemnity Agreement requires Admiral to indemnify KEMCO for KEMCO’s own negligence or for any concurrent negligence. The express-negligence test sets out the standard that a contract’s indemnity provision must meet for one to obtain indemnification from another for one’s own negligence. Id. at 708. To meet the express negligence test, the contract must express an intent to do so in specific terms “within the four corners of the contract.” Id.; see also Enserch Corp. v. Parker, 794 S.W.2d 2, 9 (Tex.1990). Courts have recognized that indemnifying a party for its own negligence involves a dramatic shifting of risks. Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 508 (Tex.1993). Requiring such an indemnity provision to be clearly and unambiguously drafted ensures that indemnitors are well aware that they are assuming this extra burden. Houston Lighting & Power Co. v. Atchison, Topeka & Santa Fe Ry. Co., 890 S.W.2d 455, 458 (Tex.1994).

*4 Words of an indemnity agreement are to be given their ordinary or common meaning in determining the intent of the parties. Hudson v.. Hinton, 435 S.W.2d 211, 214 (Tex.Civ.App.-Dallas 1968, no writ). The indemnitor is entitled to have his agreement strictly construed; his undertaking cannot be extended by construction or implication beyond its plain terms. Id. at 214. The question of whether an indemnity provision satisfies the express-negligence doctrine should be determined by the court as a matter of law. See Fisk Elec. Co. v. Constructors & Assoc., Inc., 888 S.W.2d 813, 814 (Tex.1994).

The Indemnity Agreement between KEMCO and Admiral reads:

Contractor agrees to and shall indemnify and hold harmless KEMCO, its officers, agents, and employees from and against any and all claims, losses, damages, causes of action, suits, and liability of every kind, including all expense of litigation, court costs, and attorney’s fees, for injury to, or death of, any person, or for damages to any property, arising out of, or in connection with, work done by the contractor under this contract, whether such injuries, death, or damages are caused by KEMCO or any other person or entity. It is the express intention of the parties hereto, both contractor and KEMCO, that the indemnity provided for in this paragraph is an indemnity by contractor to indemnify and protect KEMCO from the consequences of KEMCO’s own negligence, whether that negligence is a concurring cause of the injury, death, or damage. Furthermore, the indemnity provided for in this paragraph shall have no application to any claim, loss, damage, cause of action, suit, or liability where the injury, death, or damage results from the sole negligence of KEMCO unmixed with the fault of any other person or entity. Contractor assumes no liability for the sole negligence of KEMCO, its officers, agents, or employees.

(emphasis added).

The Indemnity Agreement specifically and expressly states that the contractor assumes no liability for KEMCO’s sole negligence. However, the Indemnity Agreement expressly states that the contractor agrees to indemnify KEMCO for the consequences of KEMCO’s own negligence, as long as the injury, death, or damage does not result from the sole negligence of KEMCO unmixed with the fault of any other person. See Banzhaf v. ADT Sec. Systems, Inc., 28 S.W.3d 180 (Tex.App.-Eastland 2000, pet. denied).¹

Admiral contends that, because the agreement does not define the term “contractor,” the agreement fails the express negligence test. To support its contention, Admiral cites to Melvin Green, Incorporated v. Questor Drilling Corporation, 946 S.W.2d 907 (Tex.App.-Amarillo 1997, no writ). This case is factually distinguishable. In Melvin, there were more than two parties involved. Id. The issue in Melvin concerned whether an indemnity clause in a drilling contract was applicable to a consultant who was not a party to the contract between the well operator and the drilling contractor. See id. The consultant argued he should be included in the indemnity agreement and that he should be included in the definition of “operator.” Id. at 908. The court in Melvin, applied a common-sense reading of the agreement and held that the indemnity clause did not include the third-party consultant. See id. at 911. In contrast to the multi-party scenario in Melvin, there are only two parties involved here-KEMCO and its contractor, Admiral. A common-sense reading of the Indemnity Agreement leads to the inescapable conclusion that Admiral is the “contractor” in the agreement. See id.; Faulk Management Services v. Lufkin Industries, Inc., 905 S.W.2d 476, 478-79 (Tex.App.-Beaumont 1995, writ denied). A defendant moving for summary judgment may prevail if it shows that as a matter of law no material issue of fact exists as to the plaintiff’s claim. See Citizens First Nat’l Bank v. Cinco Exploration Co., 540 S.W.2d 292, 294 (Tex.1976). The language of the Indemnity Agreement is unambiguous and Admiral did not prove as a matter of law that the Indemnity Agreement violates the express-negligence doctrine. Accordingly, we sustain KEMCO’s issue in this regard.

B. Did Admiral prove as a matter of law the Indemnity Agreement is not a valid contract supported by consideration?

*5 In its motion for summary judgment, Admiral asserted that, as a matter of law, the Indemnification Agreement does not meet the elements of a contract and was signed under duress. KEMCO counters that the agreement satisfies the common law elements for contract formation and that Admiral did not conclusively prove duress.

To form a contract, there must be an offer, acceptance, and consideration. See Bendalin v. Delgado, 406 S.W.2d 897, 900 (Tex.1966); Pennington v. Jerry F. Gurkoff, D.O., P.A., 899 S.W.2d 767, 770 (Tex.App.-Fort Worth 1995, writ denied). The indemnitee must receive a benefit from the indemnification agreement and the indemnitor must suffer some detriment from the indemnity or the agreement lacks consideration and is unenforceable. See Fourticq v. Fireman’s Fund Insurance Co., 679 S.W.2d 562 (Tex.App.-Dallas 1984, no writ); Green v. American Refining Properties, 22 S.W.2d 343 (Tex.Civ.App.-El Paso 1929, no writ).

Admiral first contends that there was no offer and acceptance. In support of this contention, Admiral asserts that the mere presence of signatures at the bottom of the Indemnity Agreement does not constitute an offer and an acceptance. We disagree.

For an offer to be valid under Texas law, (1) the offeror must have intended to make an offer; (2) the terms of the offer must have been clear and definite; and (3) the essential terms must have been communicated to the offeree. Edmunds v. Houston Lighting & Power Co., 472 S.W.2d 797, 799 (Tex.App.-Houston [14th Dist.] 1971, writ ref’d n.r.e). All three elements are present here. KEMCO sent Admiral the Indemnity Agreement, along with a letter requesting Admiral’s signature on the document. KEMCO’s officer, Jerry Krueger also discussed the letter and agreement with Admiral’s corporate officer, Linda Willis, making it clear that, unless Admiral signed the Indemnity Agreement, KEMCO would no longer use Admiral’s transportation services. This is objective proof of KEMCO’s intent to make an offer. Admiral accepted the offer when it returned the signed Indemnity Agreement to KEMCO.

Admiral also contends the Indemnity Agreement is not supported by consideration. Admiral argues that its future transportation services were already bargained for in the original 1991 Transportation Contract and because KEMCO was already bound to perform under that contract, KEMCO’s threat to discontinue use of Admiral’s transportation services unless Admiral signed the Indemnity Agreement, is not new consideration.

A contract must be based upon valid consideration, that is, mutuality of obligation. See Texas Gas Util. Co. v. Barrett, 460 S.W.2d 409, 412 (Tex.1970); Iacono v. Lyons, 16 S.W.3d 92, 94 (Tex.App.-Houston [1st Dist.] 2000, no pet.). Consideration is a bargained-for exchange of promises. See Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 496 (Tex.1991); Iacono, 16 S.W.3d at 94. It consists of either a benefit to the promisor or a detriment to the promisee. Roark, 813 S.W.2d at 496; Iacono, 16 S.W.3d at 94. It may consist of some right, interest, or profit, or benefit that accrues to one party, or, alternatively, of some forbearance, loss or responsibility that is undertaken or incurred by the other party. Copeland v. Alsobrook, 3 S.W.3d 598, 606 (Tex.App.-San Antonio 1999, pet. denied); Solomon v. Greenblatt, 812 S.W.2d 7, 15 (Tex.App.-Dallas 1991, no writ). The detriments must induce the parties to make the promises and the promises must induce the parties to incur the detriments. Roark, 813 S.W.2d at 496; Iacono, 16 S.W.3d at 94.

*6 There is a presumption that a written contract is supported by consideration. See E.J. Fourticq, 679 S.W.2d at 564; Harqis v. Radio Corporation of America, Electronic Components, 539 S.W.2d 230, 232 (Tex.Civ.App.-Austin 1976, no writ); Wright v. Robert & St. John Motor Co., 585 S.W.2d 67, 69 (1933). As the party asserting lack of consideration, Admiral had the burden to prove that there was no consideration for the Indemnity Agreement. See Cooch v. American Sling Co., Inc., 902 S.W.2d 181, 185 (Tex.App.-Fort Worth 1995, no writ); Harquis, 539 S.W.2d at 232. Admiral failed to meet this burden.

Clearly, there was new consideration supporting Admiral’s execution of the Indemnity Agreement. Admiral received a benefit while KEMCO relinquished certain rights or suffered a detriment. The 1991 Transportation Contract did not require KEMCO to use Admiral’s services; rather, it stated agreed terms that would apply whenever KEMCO elected to use Admiral’s transportation services. In any event, under the terms of the 1991 Transportation Contract, KEMCO had the right to cancel at any time upon thirty-days notice. In fact, the terms of the 1991 Transportation Contract gave either party the right to cancel the contract at any time. Admiral’s own summary-judgment evidence showed that KEMCO told Admiral (through its corporate officer, Linda Willis) that unless Admiral signed an indemnification agreement, added KEMCO to its general liability and automobile insurance policies, and gave KEMCO a waiver of subrogation on certain insurance policies, KEMCO would no longer use Admiral’s transportation services. In short, Admiral had a choice-either enter into the Indemnity Agreement or lose KEMCO’s business. Admiral chose the former.

In exchange for its agreement to indemnify KEMCO, Admiral received the on-going benefit of remaining a KEMCO transportation contractor. Admiral retained the opportunity to secure KEMCO business and did not suffer the loss of KEMCO business that would have resulted had Admiral refused to provide the contractual indemnification. KEMCO continued to use Admiral’s services, although it was not required to do so. Therefore, the Indemnity Agreement was supported by consideration. See Roark, 813 S.W.2d at 496; Hargis, 539 S.W.2d at 232 (holding that an agreement to continue doing business with a party confers a benefit on that party); see also Tripp Village Joint Venture v. MBank Lincoln, 774 S.W.2d 749 (Tex. App-Dallas 1989, writ denied).

Admiral also argues the Indemnity Agreement lacked consideration because KEMCO forced its corporate officer, Linda Willis to sign as a condition to securing its future business, and thus Willis signed the agreement under economic duress. We find no merit in Admiral’s arguments.

The elements of economic duress are: (1) a threat to do something that a party has no legal right to do; (2) illegal exaction or some fraud or deception; and (3) imminent restraint such as to destroy free agency without present means of protection. King v. Bishop, 879 S.W.2d 222, 223 (Tex.App.-Houston [14th Dist.] 1994, no writ). Economic duress may be claimed “only when the party against whom it is claimed was responsible for claimant’s financial distress.” Simpson v. MBank Dallas, N.A., 724 S.W.2d 102, 109 (Tex.App.-Dallas 1987, writ ref’d n.r.e.). Willis claimed in her affidavit that KEMCO “forced” her to sign the Indemnity Agreement. This mere assertion is not enough to show economic duress. To prevail on a claim of economic duress, the threat must be unlawful, improper, or unjust. See Windham v. Alexander, Weston, & Poehner, 887 S.W.2d 182, 185 (Tex.App.-Texarkana 1994, writ denied). KEMCO simply laid out the facts for Admiral, leaving Admiral with a business decision: sign an indemnification agreement or face the loss of business from KEMCO’s discontinuation of Admiral’s transportation services. That is not economic duress. KEMCO did not threaten to do something that it had no legal right to do. If Admiral had refused to provide the requested indemnification, KEMCO could have rightfully cancelled the contract and gotten its trucking services elsewhere.

*7 Admiral did not establish as a matter of law that the Indemnity Agreement is not a binding contract, that it lacked consideration, or that Admiral signed the agreement under duress. See Windham v. Cal-Tim, Ltd., 47 S.W.3d 846 (Tex.App.-Beaumont 2001, pet. denied). Accordingly, we sustain KEMCO’s issues in this regard.

C. Does Plaintiff Pharis’s allegation that KEMCO was solely negligent preclude indemnification?

In its summary judgment motion, Admiral states that, as a matter of law, the Indemnity Agreement does not apply or provide indemnification because the original plaintiff in the underlying suit, Pharis, alleged only KEMCO’s negligence. Admiral contends that this is conclusive proof that the sole-negligence exception in the agreement applies.

The sole-negligence exception in the Indemnity Agreement states:

The indemnity provided for in this paragraph shall have no application to any claim, loss, damage, cause of action, suit, or liability where the injury, death, or damage results from the sole negligence of KEMCO unmixed with the fault of any other person or entity. [Admiral] assumes no liability for the sole negligence of KEMCO, its officers, agents, or employees.

KEMCO argues this language is not enough evidence to eliminate any fact issues as to whether KEMCO was solely negligent. We agree. KEMCO’s negligence, if any, does not preclude Admiral’s negligence. Furthermore, in the underlying suit against KEMCO, the jury did not find KEMCO 100% negligent. Admiral did not establish as a matter of law that KEMCO was solely negligent. Therefore, we find that summary judgment was improper if granted on this ground, and we sustain KEMCO’s issue in this regard.

D. Does Section 471.004 of the Texas Labor Code apply to KEMCO’s indemnification claim?

In its motion for summary judgment, Admiral argued section 417.004 of the Texas Labor Code bars KEMCO’s claims for indemnification. See Tex. Lab.Code Ann. § 417.004 (Vernon 1996). KEMCO argues the trial court erred to the extent it granted summary judgment based on this section.

Section 417.004, often referred to as the “Texas workers’ compensation bar,” provides that an employer has no liability to reimburse another person for a judgment or settlement resulting from injury or death of an employee, unless the employer executed a written agreement with the third party expressly assuming such liability, before the injury or death occurred. See id. Section 417.004 specifically provides that a party may seek indemnification from an employer for a claim asserted by that employer’s employee if there existed a written indemnity agreement prior to the employee’s injury or death. See id.; Enserch Corp., 794 S.W.2d at 7. Admiral does not dispute that KEMCO and Admiral signed the Indemnity Agreement before Pharis was injured on March 18, 1997. Admiral asserts that section 417.004 bars KEMCO’s indemnification claim because the Indemnity Agreement is invalid. However, Admiral does not argue any new grounds for the alleged invalidity of the Indemnity Agreement; rather, Admiral relies on the grounds discussed above. Because we already have rejected those grounds and found that Admiral did not prove as a matter of law that the Indemnity Agreement is invalid or unenforceable, we also reject Admiral’s section 417.004 argument and sustain KEMCO’s issue in this regard.

E. Does the statute of limitations apply to KEMCO’s indemnification claim?

*8 Admiral also argues that KEMCO’s indemnification claim fails as a matter of law because Pharis’s negligence claim against Admiral is barred by the statute of limitations. Admiral maintains that because it is not subject to suit by Pharis, no suit may be brought against Admiral by some other responsible third-party due to the injuries to Admiral’s employee. This is not the law. Even if Pharis’s suit against Admiral was barred by limitations, this bar would not prevent KEMCO from suing Admiral on its contractual indemnity claim. See Enserch Corp., 794 S.W.2d at 6-9; Houston Lighting & Power Co. v. Eller Outdoor Advertising Co. of Texas, 635 S.W.2d 133, 134-35 (Tex.App.-Houston [1st Dist.] 1982, writ ref’d n.r.e).

Furthermore, in its reply brief, KEMCO contends its claim for indemnification is not barred by the statute of limitations. In the case of a promise to indemnify against liability, a cause of action accrues to the indemnitee only when the liability has become fixed and certain, as by rendition of a judgment. Tubb v. Bartlett, 862 S.W.2d 740, 750 (Tex.App.-El Paso 1993, writ denied); Holland v. Fidelity & Deposit Co. of Md., 623 S.W.2d 469, 470 (Tex.App.-Corpus Christi 1981, no writ). With respect to a promise to indemnify against damages, a right to bring suit does not accrue until the indemnitee has suffered damage or injury by being compelled to pay the judgment or debt. Tubb, 862 S.W.2d at 750; Holland, 623 S.W.2d at 470.

The Texas Civil Practice and Remedies Code provides that a person must bring suit on a cause of action for debt not later than four years after the day the cause of action accrues. Tex. Civ. Prac. & Rem.Code Ann. § 16.004(a)(3) (Vernon 1986). Section 16.004(a)(3), which specifies the limitations period on an action for debt, includes all suits brought to recover money for breach of contract. Ingersoll-Rand Co. v. Valero Energy Corp., 953 S.W.2d 861, 867 (Tex.App.-Corpus Christi 1997), rev’d on other grounds; 997 S.W.2d 203 (Tex.1999); Perez v. Gulley, 829 S.W.2d 388, 390 (Tex.App.-Corpus Christi 1992, writ denied). KEMCO’s indemnification claims are subject to the four-year statute of limitations. See Ingersoll-Rand, 953 S.W.2d at 867. Limitations began to run when Pharis settled his suit in March of 2001. Thus, the statute of limitations does not bar KEMCO’s contractual indemnification claim. We sustain KEMCO’s issue in this regard.

V. Conclusion

We reverse the summary judgment solely as to the indemnification claim, and remand this case to the trial court for further proceedings consistent with this opinion.

	Footnotes
1		Compare Enserch Corp. v. Parker, 794 S.W.2d 2, 7 (Tex.1990) (holding language in indemnification agreement satisfied the express negligence rule); Atlantic Richfielf Co. v. Petroleum Personnel, Inc., 768 S.W.2d 724 (Tex.1989) (holding the language in indemnity agreement sufficient to meet express negligence test); with Houston Lighting & Power Co. v. Atchison, Topeka & Santa Fe Ry. Co., 890 S.W.2d 455, 457-59 (Tex.1994) (applying the express negligence rule to indemnification for claims involving strict liability and holding that the rule was not satisfied because the parties did not mention the intent to cover strict liability in “specific terms”); Fisk Elec. Co. v. Constructors & Assoc., Inc., 888 S.W.2d 813, 814 (Tex.1994) (holding the indemnification agreement did not express, within the four corners of the contract, the intent that the indemnitee will be indemnified from the consequences of its own negligence).