United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED August 25, 2021 No. 19-20489 Lyle W. Cayce Clerk Maxim Crane Works, L.P.,

Plaintiff—Appellant,

versus

Zurich American Insurance Company,

Defendant—Appellee.

Appeal from the United States District Court for the Southern District of Texas No. 4:18-CV-3667

Before Smith, Ho, and Oldham, Circuit Judges. Per Curiam: We withdraw the court’s prior opinion of Aug. 20, 2021 and substitute the following opinion. This is an insurance coverage dispute involving an intricate web of insurance contracts arising out of a construction project involving multiple different businesses. But the legal issue presented in this case is simply this: Who counts as an “employee” under the Texas Anti-Indemnity Act (“TAIA”)? See Tex. Ins. Code §§ 151.102, 151.103. Specifically, if a person is employed by a general contractor, is that person also considered an Case: 19-20489 Document: 00515994295 Page: 2 Date Filed: 08/25/2021

No. 19-20489

“employee” of the subcontractor? One might think, under a traditional understanding of the term “employee,” the natural answer to this question must be “no.” But the TAIA does not define the term “employee” for these purposes; there are no Texas cases interpreting the TAIA; and at least one Texas court has answered the question “yes,” at least as the term “employee” has been used in the Texas Workers’ Compensation Act. We are advised that the answer to this question of statutory interpretation may affect countless Texas construction contracts. But we lack sufficient guidance from Texas courts to determine with any confidence how the Supreme Court of Texas would answer this question. “To best serve the people of Texas, th[i]s[] question[] should be answered by the only court that can issue a precedential ruling that will benefit all future litigants, whether in state or federal court.” JCB, Inc. v. Horsburgh & Scott Co., 912 F.3d 238, 239 (5th Cir. 2018). Accordingly, we certify this question to the Supreme Court of Texas. Before we do so, we address, and reject, the contention that the district court should have dismissed this case for lack of standing, rather than enter judgment on the merits for the insurer. In doing so, we explain why there was no need for the insurer to file a cross-appeal in order to raise the issue of standing on appeal. I. In 2013, Skanska USA, Inc. (“Skanska”), a general contractor, hired Berkel & Co. Contractors (“Berkel”) as a subcontractor on a large construction project in Houston. Skanska required all of its subcontractors, including Berkel, to participate in a contractor-controlled insurance program (“CCIP”) as a condition of working on the job. The CCIP provided for general commercial liability insurance as well as workers’ compensation coverage.

2 Case: 19-20489 Document: 00515994295 Page: 3 Date Filed: 08/25/2021

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Berkel leased a Lin