The Texas Supreme Court has granted a highway contractor’s petition for review of a Houston [14th] Court of Appeals holding that § 97.002, CPRC, which protects a contractor from liability if the contractor performs the work in substantial compliance with TxDOT’s contract documents, requires privity of contract with TxDOT.
Third Coast Services, LLC & SpawGlass Civil Construction, Inc. v. Felicitas Castaneda, Individually and as Representative of the Estate of Pedro Castaneda, Deceased, Irving Castaneda, Evelyn Castaneda & Lizzie Castaneda (No. 23-0848; granted April 4, 2025) arose from a wrongful death action resulting from a fatality vehicle accident at the intersection of Woodtrace Boulevard and SH 249 in Montgomery County. The area was adjacent to a construction project under an agreement between TxDOT and Montgomery County for a segment of tollroad. The frontage road upon which the accident occurred remained part of the state highway system operated and maintained by TxDOT. In 2018 the county contracted with SpawGlass to serve as the general contractor for the SH 249 tollroad project. SpawGlass contracted with Third Coast to furnish and install electrical components, including traffic signals. At the time of the accident, the signals at the intersection had been installed but not electrified or operational. Instead, the intersection was controlled by the existing stop sign and stop bar on the east and west sides of Woodtrace. The frontage road had no signals, so Woodtrace traffic had to yield to southbound traffic on SH 149.
The decedent was killed when, without stopping at the stop sign, his vehicle was broadsided by a southbound vehicle on the frontage road. Plaintiffs sued SpawGlass and Third Coast for negligence and gross negligence and requested more than $1,000,000 in actual and punitive damages. Defendants moved for summary judgment pursuant to § 97.002, which the trial court denied. The court of appeals affirmed, holding that § 97.002 did not apply because Defendants failed to conclusively establish that they were hired by TxDOT or otherwise contracted with TxDOT for the SH 249 project.” Defendants petitioned for review, which SCOTX has now granted.
In their petition, Defendants argue that the court of appeals erroneously interpreted § 97.002 to require privity of contract between a contractor and TxDOT. The statute, however, reads as follows: “A contractor who constructs or repairs a highway, road, or street for the Texas Department of Transportation is not liable to a claimant for personal injury, property damage, or death arising from the performance of the construction or repair if, at the time of the personal injury, property damage, or death, the contractor is in compliance with contract documents material to the condition of defect that was the proximate cause of the personal injury, property damage, or death.” Defendants assert that the SH 149 project agreement assigns maintenance of the frontage road to TxDOT, and that the contract documents required Third Coast to erect traffic signals at that intersection. In addition to that, the project required modifications to the frontage road itself, including “grading embankment and drainage structures, pavement markings on the southbound SH 149 frontage road, and paving and riprap for the U-turns for the SH 249 frontage roads.” Contrary to the court of appeals’ reading, nothing in the statute requires privity of contract with TxDOT, only that a contractor substantially comply with contract documents while working “for TxDOT.” If the Legislature had intended contractors to have privity, Defendants conclude, it could have done so, as it has in other statutes governing contracts between governmental entities and contractors.
Oral arguments have not yet been scheduled.
