See also Reed Tool Co. v. Copelin, 610 S.W.2d 736 (Tex. 1980) (acceptance of workers' compensation benefits by employee barred wife's action for negligent impairment of consortium); American Petrofina, Inc. v. Dorchester Gas Corp., 685 S.W.2d 723 (Tex.App.-Dallas 1985, writ granted) (surviving corporation liable for amount paid by predecessor in settlement of personal injury claim by surviving corporation's employee even though workers' compensation benefits accepted where two corporations had specific indemnity clause in merger agreement). Appellant elected his remedy against his employer, Arco.
Eastman Kodak Co. v. Exxon, 603 S.W.2d 208 (Tex. 1980); Goodyear Tire Rubber Co. v. Jefferson Construction Co., 565 S.W.2d 916 (Tex. 1978); Fireman's Fund Insurance Co., 490 S.W.2d at 822; Phillips Pipeline Co. v. Richardson, 680 S.W.2d 43, 46 (Tex.App. โ El Paso 1984, no writ). In American Petrofina, Inc. v. Dorchester Gas Corp., 685 S.W.2d 723 (Tex.App. โ Dallas 1985, writ granted), the Court reconciles the language of Section 3 with the general rules used in analyzing the sufficiency of indemnity agreements. The Court discusses in the Eastman Kodak decision the question of whether the "clear and unequivocal" rule applies when an indemnity agreement refers to injuries arising from the maintenance or operation of a specified instrumentality.
The judge pointed to Texas precedent that, on language similar to the merger documents before the Davis court, had found a valid agreement by an employer to indemnify the party that had sold the workplace to the employer and was subsequently found liable in negligence to an employee. Id. at 418 (Sears, J., dissenting) (citing American Petrofina, Inc. v. Dorchester Gas Corp., 685 S.W.2d 723 (Tex.App. 1985), rev'd on other grounds, 710 S.W.2d 541 (Tex. 1986)).
After a trial without a jury, the trial court found that the clause was insufficient to cover the claim. The court of appeals reversed the judgment of the trial court and rendered judgment in favor of Fina. 685 S.W.2d 723. We reverse the judgment of the court of appeals and affirm the judgment of the trial court.