In a construction case involving injuries the Plaintiff sustained as a result of falling 10 feet from an obscured hole in the attack of a residential building, a Dallas County jury has absolved the original Defendant of any negligence, placing the entirety of the blame on the third-party Defendant the original Defendant said, instead, deserved it.
This was the culmination of a number of strategic moves by the parties, including Plaintiff removing his vicarious liability claim against the original Defendant, the original Defendant becoming a third-party Plaintiff, the Plaintiff successfully severing the third-party actions out of the case, and the Defendant successfully fighting to bring them back in ahead of trial.
– DETAILS –
1. Plaintiff’s Sues One Defendant, Then Removes Vicarious Liability Claim
Plaintiff sued one Defendant in this case — referred to herein as Defendant “Spray Foam” — for sole responsibility of Plaintiff’s “severe injuries” and “severe pain and suffering.”
In Plaintiff’s Original Petition, he alleged he was “under the direction and in furtherance of his work for the benefit and under the control of Spray Foam” when he suffered on the job injuries.
He also alleged that:
[Section VI(11) Plaintiff’s Original Petition – Filed 1/13/2021]
In Plaintiff’s First Amended Petition, he substituted the above direction and control paragraph with “Plaintiff was in his professional trade’s course and scope of employment unrelated to insulation in the same area of Defendant’s professional trade in their course and scope of employment.”
He also substituted the above “non-delegable duty” paragraph with:
[Section VI(11) Plaintiff’s First Amended Petition – Filed 4/27/2021]
Plaintiff’s Original included a claim for, and factual language compatible with, vicarious liability; the Amended removed the vicarious liability claim, and tweaked the factual allegations accordingly.
Both petitions included a premises liability claim, describing Spray Foam’s role as “the owner and/or in possession of the premises” where the incident occurred and who, in the alternative, “at all relevant times had care and control of the premises for safety and security purposes.”
On March 2, Spray Foam filed an Original Answer generally denying Plaintiff’s claims.
2. Defendant Sues Two Third-Party Defendants, Becoming Third-Party Plaintiff
On September 21, roughly six months after its original answer, Spray Foam filed Defendant/Third-Party Plaintiff Performance Spray Foam, Inc.’s Third-Party Petition against two third-party Defendants — Okon Homes (“Okon”) and Dalmar Electric, LLC (“Dalmar”).
In its’ Third-Party Petition, Spray Foam alleged that:
- 1) Okon was the general contractor that maintained control of the project and that was responsible for safety and subcontractor coordination; and
- 2) Dalmar was Plaintiff’s employer and subcontracted with Okon to do the electrical work.
If Plaintiff’s claims were true, Spray Foam argued, Okon and Dalmar were liable “for all or part” of them—not Spray Foam.
3. Third-Party Defendant Files Notice of Bankruptcy
On October 25, Okon filed an Original Answer generally denying all of Spray Foams allegations.
A couple months later on January 31, 2022, Okon filed Third Party Defendant Howard Okon Homes, Inc.’s Notice of Bankruptcy and informed the Court it “is currently the subject of a Chapter 7 Bankruptcy filing,” providing bankruptcy court and counsel information.
3.Plaintiff Moves to Sever Third-Party Actions — and Wins
Just a few days later on February 4, Plaintiff filed a Motion to Sever Third-Party Action Against Third-Party Defendant Howard Okon Homes, Inc. on the basis of Okon’s bankruptcy, stating “since Plaintiff will recover nothing from that Debtor and since [Spray Foam] can file a claim and hope to be included in whatever plan is filed in that case,” the Court should sever Spray Foam’s actions against Okon “into a separate cause” to “avoid a long automatic stay” and “so that discovery may proceed.”
Spray Foam filed Defendant’s Response to Plaintiff’s Motion to Sever on February 21, arguing the Court should deny Plaintiff’s request since Okon “is a necessary party in order to apportion liability” and granting the Motion would “result in duplicitous proceedings over identical facts.”
Taking particular issue with Plaintiff’s premises liability claim against it, Spray Foam alleged it “had no control over the premises,” “was not present the day of the accident,” and Okon was “responsible for maintaining the premises.”
Since Plaintiff’s and Spray Foam’s causes of actions are “inextricably intertwined and from the exact incident,” Spray Foam argued, the Court should deny Plaintiff’s Motion to Sever.
On February 28, the Court signed an Order granting Plaintiff’s Motion, and removed Okon from the case.
4. Defendant/Third-Party Plaintiff Moves to Consolidate — and Wins
Almost exactly one year later, on February 27, 2023, Spray Foam filed a Motion to Consolidate, asking the Court to “consolidate this cause with the previously severed action” against Okon as “there is no longer a need” since Okon’s bankruptcy litigation is “final and concluded.” Spray Foam reiterated “the claims are interwoven and involve the same facts, issues, and alleged damages.”
Plaintiff responded on April 28, asking the Court to deny Spray Foam’s Motion as the bankruptcy “was successfully completed with the automatic stay now permanent.”
On May 10, Spray Foam submitted a Reply In Support of its Motion, challenging Plaintiff’s contention that the automatic bankruptcy stay “is somehow now ‘permanent,’” arguing “Plaintiff is simply wrong” and precedent says the stay ‘remains in effect [only] until the bankruptcy proceeding is concluded.’
Plaintiff submitted a Reply to Spray Foam’s Reply the next day, citing additional precedent that emphasized the requirement for the stay to be ‘lifted or modified,” which it stated had not happened in this case.
The Court signed an Order on May 11 granting Spray Foam’s Motion to Consolidate.
5. Jury Finds Against Plaintiff and For Third-Party Plaintiff
The case finally went to trial on April 1, 2025.
On April 7, five-of-six members of the jury issued the following verdict:
- “No” as to negligence of the Plaintiff;
- “No” as to negligence of Spray Foam;
- “No” as to negligence of the Plaintiff proximately causing the accident;
- “No” as to negligence of Spray Foam proximately causing the accident;
- “Yes” as to Okon’s negligence proximately causing the accident;
- “100” percent fault as to Okon; and
- “No” as to any gross negligence attributable to Spray Foam.
| “NO” Negligence or Proximate Cause | “YES” Negligence & Proximate Cause |
| – Plaintiff – Third-Party Plaintiff Spray Foam (original Defendant) | – Third-Party Defendant Okon – 100% fault |
There were no answers to the percentages of fault, money damages, or exemplary damages questions involving the Plaintiff or Spray Foam, since neither were determined to be negligent.
– CASE INFO –
County:
Dallas
Court:
County Court at Law No. 5
Judges Presiding:
Hon. Juan Renteria (pre- January 1, 2023)
Hon. Nicole Taylor (post- January 1, 2023)
Cause #:
CC-21-00138-E
Caption:
Jose Refugio Tapia-Silva v. Performance Spray Foam
Claims:
Negligence, Premises Liability
Counsel for 𝛑:
Paul Hornung of LAW OFFICES OF DOMINGO A. GARCIA, PC
Counsel for 𝝙/Third-Party 𝛑:
Rhonda J. Thompson and Brett D. Gardner of THOMPSON, COE, COUSINS & IRONS, LLP