IN THE SUPREME COURT OF TEXAS
`444444444444
`NO. 10-0648
`444444444444
`
`EL PASO FIELD SERVICES, L.P. AND
`GULFTERRA SOUTH TEXAS, L.P. F/K/A/
`EL PASO SOUTH TEXAS, L.P.,
`PETITIONERS,
`
`v.
`
`MASTEC NORTH AMERICA, INC.
`AND MASTEC, INC.,
`RESPONDENTS
`
`4444444444444444444444444444444444444444444444444444
`ON PETITION FOR REVIEW FROM THE
`COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS
`4444444444444444444444444444444444444444444444444444
`
`Argued January 11, 2012
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`JUSTICE GREEN delivered the opinion of the Court, in which CHIEF JUSTICE JEFFERSON,
`JUSTICE HECHT, JUSTICE JOHNSON, JUSTICE WILLETT, and JUSTICE BOYD joined.
`
`JUSTICE GUZMAN filed a dissenting opinion, in which JUSTICE MEDINA and JUSTICE
`LEHRMANN joined.
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`In this case, we are asked to harmonize provisions in a pipeline construction contract to
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`determine who bears the risk of obstacles in the pipeline’s path. Specifically, we must examine the
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`effect of the contract’s risk-allocation provisions in light of due diligence specifications under which
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`the pipeline owner was purportedly required, but failed, to provide accurate and complete
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`information to the contractor regarding the location of “foreign crossings.” We conclude that the
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`contract allocated all risk to the contractor for unknown obstacles discovered during the construction
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`process. Accordingly, we reverse the court of appeals’ judgment and reinstate the trial court’s
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`judgment.
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`I. Factual Background
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`El Paso Field Services, L.P. purchased an eight-inch propane pipeline from Coastal
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`Corporation. The pipeline was approximately sixty-eight miles long, and was constructed in the
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`1940s as an emergency war pipeline to transport petroleum from Corpus Christi to inland U.S. Air
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`Force bases. After determining that the pipeline was too shallow to be safe, El Paso made plans to
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`remove the old pipeline and construct a new one that would carry butane, a byproduct of natural gas.
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`El Paso invited MasTec, Inc., a company looking to expand its business to include energy pipelines,
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`as well as other contractors to bid on a project to replace the section of the pipeline from Victoria
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`to Nueces Bay. MasTec had never installed a pipeline, and its primary business usually entailed
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`installing underground fiber-optic cables and telephone lines.
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`Before soliciting bids for the project, El Paso hired Gullett & Associates, Inc., a survey
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`mapping company out of Houston, to survey the pipeline route. This survey was compiled in the
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`form of “alignment sheets,” which showed the locations of 280 “foreign crossings” along the
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`pipeline’s right-of-way, including other pipelines, utilities, roads, rivers, canals, fences, wells, cables,
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`and concrete structures. The alignment sheets were included in a bid package, which was distributed
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`to the contractors at a pre-bid meeting to help them estimate the cost of constructing the pipeline.
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`To bid the project, MasTec hired as its general manager Bill White, who had forty-one years
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`of experience in the pipeline construction business and had a team of construction personnel,
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`including many who had worked with him for almost thirty years. White attended the pre-bid
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`meeting on MasTec’s behalf and received a copy of the alignment sheets, El Paso’s contract, and
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`other pertinent information for estimating the cost of the project. At the meeting, El Paso
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`encouraged each potential bidder to perform an aerial inspection of the pipeline route. Subsequently,
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`White and his son flew by helicopter over the route to assess its general topography, landing
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`occasionally to assess the soil conditions. White testified that bidders were prohibited from entering
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`certain private properties along the route, but El Paso later claimed that the contractors were able to
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`enter those areas if they were escorted by an El Paso representative.
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`Shortly thereafter, White submitted, on MasTec’s behalf, a completed contract and a bid on
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`the project for $3,690,960, which was substantially lower than the other bids. The average bid for
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`the project was $8.1 million. El Paso narrowed its choices to two contractors, then met with White
`1
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`to ensure that MasTec would be able to complete the project according to El Paso’s time frame. El
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`Paso asserts that, at that meeting, its representatives discussed MasTec’s low bid with White, and
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`then offered White the opportunity to withdraw the bid. White disputes being told that the bid was
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`low and denies being offered the chance to withdraw the bid. Nevertheless, El Paso subsequently
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`awarded MasTec the contract, which the parties entered into on June 10, 2003.
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`1
` MasTec’s bid of more than $3.69 million, combined with its damage award of more than $4.69 million,
`approximately equals the average bid amount submitted by other contractors.
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`MasTec’s work on the project commenced later that month. Although the alignment sheets
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`showed 280 foreign crossings, MasTec discovered far more foreign crossings by the end of the
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`project. Many of the undiscovered foreign crossings required a special weld, called a “tie-in” weld,
`2
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`and about ten hours of labor, which substantially increased the cost of the work. In a letter to El Paso
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`dated September 8, 2003, White raised the issue of extra costs associated with foreign crossings,
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`though he did not make a demand for payment. El Paso responded by letter on September 26, 2003,
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`reciting contractual provisions and asserting that the undiscovered foreign crossings were within
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`MasTec’s scope of work.
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`II. Procedural Background
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`In 2004, MasTec filed suit against El Paso for breach of contract and fraud, based on El
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`Paso’s failure to locate 794 unknown foreign crossings and its subsequent refusal to compensate
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`MasTec for its additional expenses resulting from the crossings. In the alternative, MasTec sought
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`to recover under the theories of quantum meruit and quantum valebant. At trial, the jury was asked
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`whether El Paso failed to comply with the contract. To answer that question, the jury was instructed
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`2
` The record contains conflicting accounts of the actual number of foreign crossings. Steve Edwards, who
`MasTec hired to locate foreign crossings, testified that he found over a thousand foreign crossings. Greg Perkins, a
`mechanical engineer who testified as an expert for MasTec, testified that MasTec located 794 foreign crossings and that
`more than 200 were metal pipelines that had not been identified on El Paso’s alignment sheets. Gullett’s survey
`supervisor, Richard Schubert, who El Paso sent out at the close of the project to confirm the number and location of
`additional foreign crossings, testified that there were 274 additional foreign crossings and 126 additional tie-in welds.
`Schubert also testified, however, that the as-built drawings Gullett prepared after MasTec completed the project showed
`343 additional foreign crossings, including 208 that were metal. In this proceeding, MasTec alleges that there were 794
`foreign crossings that required 217 additional tie-in welds.
`
`3
` It appears from the record that MasTec did not pursue fraud or misrepresentation claims, nor were any tort
`theories submitted to the jury. Incidentally, MasTec had indicated in a letter to El Paso during the construction process
`that it did not believe the omissions from the alignment sheets were intentional or that El Paso withheld information from
`them. The letter stated, “We merely feel that circumstances beyond your control, and ours, has [sic] had a cost impact
`to MasTec worth reviewing.” The letter then stated, in regard to the additional foreign crossings: “These were mostly
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`to consider “whether El Paso exercised due diligence in locating foreign pipelines and/or utility line
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`crossings.” The jury answered that El Paso failed to comply with the contract and awarded MasTec
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`$4,763,890 in damages. Additionally, the jury found that MasTec failed to comply with the contract
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`by not completing the work required in the contract and awarded El Paso $104,687.09 in damages.
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`El Paso moved to disregard the jury’s findings and for judgment notwithstanding the verdict.
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`El Paso urged that the “due diligence” provisions in the contract “did not involve any future
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`performance but at best constituted a warranty.” El Paso further asserted that, regardless of the due
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`diligence provisions in the contract, MasTec disclaimed reliance on any warranty by El Paso
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`regarding foreign pipeline and utility crossings. The trial court granted the motion and entered a
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`take-nothing judgment in favor of El Paso, finding that the contract was clear and unambiguous and
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`“allocates the risk of any additional cost incurred because of foreign pipeline crossings to MasTec.”
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`In response, MasTec filed a motion to vacate the judgment, which the trial court denied.
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`MasTec appealed, and the court of appeals reversed the trial court’s judgment. 317 S.W.3d
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`431, 434 (Tex. App.—Houston [1st Dist.] 2010). On rehearing, the court of appeals issued a new
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`opinion, though it did not change its disposition or judgment. Id. The court of appeals held that
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`MasTec’s commitments and representations under the contract did not preclude its recovery based
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`on the jury’s finding that El Paso failed to exercise due diligence in locating the foreign crossings.
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`Id. at 456. The court of appeals denied El Paso’s motion for rehearing en banc. Id. at 431. We
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`granted El Paso’s petition for review. 55 Tex. Sup. Ct. J. 29 (Oct. 21, 2011).
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`all fiberglass lines that no one had any knowledge of.”
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`III. Standard of Review
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`In construing a contract, we must ascertain and give effect to the parties’ intentions as
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`expressed in the writing itself. Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341
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`S.W.3d 323, 333 (Tex. 2011). In discerning the parties’ intent, “we must examine and consider the
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`entire writing in an effort to harmonize and give effect to all the provisions of the contract so that
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`none will be rendered meaningless.” Id. (quoting J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223,
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`229 (Tex. 2003)) (internal quotation marks omitted). We begin our analysis with the contract’s
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`express language. Id. If we determine that the contract’s language can be given a certain or definite
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`legal meaning or interpretation, then the contract is not ambiguous and we will construe it as a matter
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`of law. Id. But, “if the contract is subject to two or more reasonable interpretations after applying
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`the pertinent rules of construction, the contract is ambiguous, creating a fact issue on the parties’
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`intent.” J.M. Davidson, 128 S.W.3d at 229.
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`IV. Contract Interpretation
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`El Paso relies on the following risk-allocation provisions in the lump-sum contract:
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`7.1 REPRESENTATIONS AND WARRANTIES
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`[MasTec] represents and warrants to [El Paso]:
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`(e) That its duly authorized representative has visited the site of the Work, is
`familiar with the local and special conditions under which the Work is to be
`performed and has correlated the on site observations with the requirements of the
`Contract and has fully acquainted itself with the site, including without limitation,
`the general topography, accessibility, soil structure, subsurface conditions,
`obstructions and all other conditions pertaining to the Work and has made all
`investigations essential to a full understanding of the difficulties which may be
`encountered in performing the Work, and that anything in this Contract or in any
`representations, statements or information made or furnished by [El Paso] or any of
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`its representatives notwithstanding, [MasTec] assumes full and complete
`responsibility for any such conditions pertaining to the Work, the site of the Work or
`its surroundings and all risks in connection therewith;
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`. . . .
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`(g) That the Contract is sufficiently complete and detailed for [MasTec] to perform
`the Work required to produce the results intended by the Contract and comply with
`all the requirements of the Contract; . . .
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`. . . .
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`8.1 CONTRACTOR’S CONTROL OF THE WORK
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`(a)(7) [MasTec] represents that it has had an opportunity to examine, and has
`carefully examined, all of the Contract documents and has fully acquainted itself with
`the Scope of Work, design, availability of materials, existing facilities, the general
`topography, soil structure, substructure conditions, obstructions, and all other
`conditions pertaining to the Work, the site of the Work and its surrounding; that it
`has made all investigations essential to a full understanding of the difficulties which
`may be encountered in performing the Work; and that anything in any of the Contract
`documents or in any representations, statements or information made or furnished by
`[El Paso] or its representatives notwithstanding, [MasTec] will regardless of any such
`conditions pertaining to the Work, the site of the Work or its surrounding, complete
`the Work for the compensation stated in this Contract, and pursuant to the extent of
`[MasTec’s] liability under this Contract, assume full and complete responsibility for
`any such conditions pertaining to the Work, the site of the Work or its surroundings,
`and all risks in connection therewith. In addition thereto, [MasTec] represents that
`it is fully qualified to do the Work in accordance with the terms of this Contract
`within the time specified.
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`Exhibits B and C to the contract place additional requirements on both parties. Under
`4
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`Exhibit B-1, titled “Contractor’s Proposal,” MasTec agreed to perform “everything necessary to
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`complete, satisfy, and discharge all Work and obligations imposed on [MasTec] connected with the
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`performance of the Work.” This included “[f]urnish[ing] all labor, equipment and materials as
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`4
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` Article 24.1 of the contract expressly includes the exhibits as “part of this Contract for all purposes.”
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`described in the Specifications for all Work necessary to perform the following applicable Work as
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`shown on the Drawings, including, but not limited to: . . . welding (including tie-in and transition
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`welds, if required).” Exhibit B-1 further describes the scope of MasTec’s work:
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`Any Work required to complete installation of the new pipeline but not shown as a
`pay item is no less included in the scope of work for installation of the new 8-inch
`Butane Shuttle pipeline and is included in [MasTec’s] lump sum proposal. Just
`because an item of Work is not specifically identified, does not mean such Work is
`not included in [MasTec’s] scope of Work. Any item of Work [MasTec] knows is
`required for completion of the installation but not specifically identified is to be
`included in [MasTec’s] Lump Sum Proposal.
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`Exhibit C to the contract contains a lengthy collection of “Construction Specifications” for
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`the project, which include the due diligence language on which MasTec relies. Specification LP-5,
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`titled “Ditching,” states under the heading “Company Foreign Line and Utility Crossings” that “[El
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`Paso] will have exercised due diligence in locating foreign pipelines and utility line crossings.
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`However, [MasTec] shall confirm the location of all such crossings and notify the owner prior to any
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`ditching activity in the vicinity of the crossings.” Near the end of Exhibit C, Specification LP-17,
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`titled “Horizontal Directional Drilling,” states under the heading “Foreign Line and Utility
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`Crossings” that “[El Paso] will have exercised due diligence in locating foreign pipelines and/or
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`utility line crossings. However, [MasTec] shall confirm the location of all such crossings and notify
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`the owner prior to any [horizontal directional drilling] activity in the vicinity of the crossings.”
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`Here, neither party contends that the terms of the contract are ambiguous. Indeed, the
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`contract’s plain terms are clear. MasTec agreed that it had “fully acquainted itself with the site,
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`including without limitation . . . subsurface conditions, obstructions and all other conditions
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`pertaining to the Work.” It also agreed that it had “made all investigations essential to a full
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`understanding of the difficulties which may be encountered in performing the Work.” In regard to
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`potential work site conditions, MasTec “assume[d] full and complete responsibility for any such
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`conditions pertaining to the Work, the site of the Work or its surroundings and all risks in connection
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`therewith.” All of this was agreed to “notwithstanding” “anything in any of the Contract documents
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`or in any representations, statements or information made or furnished by [El Paso] or its
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`representatives.” These terms, in both Article 7.1(e) and Article 8.1(a)(7), clearly place the risk of
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`undiscovered foreign crossings on MasTec. And they expressly resolve any tension between the due
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`diligence specifications and the risk allocation provisions. Because MasTec abandoned its fraud
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`claim, MasTec is bound by the terms of this contract, regardless of whether it thought it contained
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`different terms. See In re Palm Harbor Homes, Inc., 195 S.W.3d 672, 676 (Tex. 2006) (holding that
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`absent fraud, deceit, or misrepresentation in the signing of an agreement, the parties are bound by
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`the agreement); see also Lonergan v. San Antonio Loan & Trust Co., 104 S.W. 1061, 1066 (Tex.
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`1907) (“[I]n the absence of fraud or other improper influence, competent persons may make their
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`own contracts for lawful purposes and will be required to perform them.”).
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`MasTec argues that the contract’s broad “all risks” provisions are limited by the specific
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`exception in the due diligence specifications in Exhibit C. Under MasTec’s reading of the contract,
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`the “all risks” provisions set out the scope of MasTec’s general responsibility, but the construction
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`specifications remove from MasTec’s responsibility the location of foreign crossings through the
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`5
` Although not raised by the parties, we note that Article 25 of the contract contains an order-of-precedence
`provision, which states: “Should any conflict exist or appear to exist between any parts or Exhibits of this Contract, such
`conflict shall be brought to the attention of [El Paso] and [El Paso] shall notify [MasTec] which Part or Exhibit shall have
`precedence.” The very next provision, however, states that “Conflicts between the Drawings and the Specifications shall
`be interpreted in favor of the Drawings.”
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`exercise of due diligence, a responsibility that was allocated to El Paso. That reading, however,
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`ignores the plain language of the agreement: MasTec assumes “all risks in connection with” “soil
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`structure, subsurface conditions, obstructions and all other conditions pertaining to the Work,”
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`“notwithstanding” anything else in the contract. The specified conditions relate to the physical
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`environment of the pipeline’s path, precisely the risk involved with unknown underground foreign
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`crossings. MasTec seems to have understood as much; its senior vice president testified at trial that
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`foreign crossings were included in the risks covered by Article 7.1(e). Just as we have held in the
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`insurance policy context that “‘all losses’ means all losses,” “all risks” in connection with the
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`physical conditions of the pipeline’s path must mean all risks. See Enter. Leasing Co. v. Barrios,
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`156 S.W.3d 547, 549 (Tex. 2004) (per curiam).
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`MasTec argues that our reading of the contract renders meaningless the two due diligence
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`specifications. Indeed, when construing a contract, we strive to “give effect to all the provisions of
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`the contract so that none will be rendered meaningless.” Coker v. Coker, 650 S.W.2d 391, 393 (Tex.
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`1983). While we have had occasion to give meaning to the phrase “due diligence” in other contexts,
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`we must construe it here in conjunction with the specific rights and obligations contained in this
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`contract. See, e.g., Via Net v. TIG Ins. Co., 211 S.W.3d 310, 314 (Tex. 2006) (discussing due
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`diligence in the context of the relationship between royalty owners and lessees in oil and gas
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`contracts); cf. Strickland v. Lake, 357 S.W.2d 383, 384 (Tex. 1962) (“The term ‘diligence’ is relative
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`and incapable of exact definition. Its meaning must be determined by the circumstances of each
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`case. Reasonable diligence has been defined as such diligence that an ordinarily prudent and diligent
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`person would exercise under similar circumstances. It is usually a question of fact.” (citations
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`omitted)). Because there is no indication that the parties intended to give “due diligence” any
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`technical or special meaning, we give the phrase its “plain, ordinary, and generally accepted
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`meaning.” See Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex. 1996). According
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`to Black’s Law Dictionary, “due diligence” is “[t]he diligence reasonably expected from, and
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`ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an
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`obligation.” BLACK’S LAW DICTIONARY (9th ed. 2009). With that in mind, we must harmonize the
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`due diligence specifications with the other contractual provisions to ascertain the true intentions of
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`the parties. See Coker, 650 S.W.2d at 393.
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`The contract contemplates a joint effort by the parties. The due diligence specifications,
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`which are contained in guidelines for the performance of ditching and horizontal directional drilling,
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`state: “[El Paso] will have exercised due diligence in locating foreign pipelines and/or utility line
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`crossings. However, [MasTec] shall confirm the location of all such crossings and notify the owner
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`prior to any [ditching or horizontal directional drilling] activity in the vicinity of the crossings.”
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`Because of the joint nature of these obligations, our construction of this contract does not render
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`these provisions meaningless; rather, our construction gives effect to the parties’ intent that the
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`parties agreed El Paso had already exercised due diligence to locate foreign crossings, but ultimately
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`the risk of omissions and inaccuracies, including the obligation to investigate and protect against
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`additional foreign crossings, falls on MasTec. Greg Floerke, MasTec’s vice president of
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`communications, which included the pipeline unit, explained: “Due diligence in my experience
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`typically meant other than taking existing maps and lines—crossings and lines that are shown on
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`those maps, to take the extra step to go out [and] do something, additional due diligence to locate
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`any foreign pipelines that might exist.
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`Before soliciting bids, El Paso took steps to locate foreign crossings. El Paso had only
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`preliminary alignment sheets from the 1940s for the pipeline at issue, and no as-built alignment
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`sheets. Knowing that those alignment sheets were “very poor” and “inadequate,” and would not
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`have shown any crossings installed after the pipeline was constructed, El Paso hired Gullett to survey
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`the pipeline’s right of way. El Paso instructed Gullett to locate as many foreign crossings as it could
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`using metal detection and visual inspection, and to compile the findings into a map (the alignment
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`sheets) that could be distributed to potential bidders. Using four crews, Gullett’s surveyors walked
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`the pipeline’s entire right-of-way, using an M-Scope, an advanced pipeline-locating device to find
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`metal pipelines, as well as PVC and fiberglass pipelines with metal tracers. Although El Paso did
`6
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`not instruct Gullett to use other methods to locate PVC or fiberglass crossings that an M-scope and
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`visual inspection would not detect, the record indicates that locating those lines would be very labor-
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`intensive, often requiring digging by hand or using a vactron, a hydraulic vacuum cleaner that
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`pressure washes holes. Moreover, although El Paso did have parallel pipelines in the same right-of-
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`way, the alignment sheets for those lines were also from the 1940s and would not have shown
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`foreign crossings built since then. Similarly, although Valero had a pipeline in the same right-of-
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`way, that pipeline was decades old, and testimony indicated that it was not customary for pipeline
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`6
` Mike White, who assisted his father, Bill White, on the El Paso project, testified that PVC piping is required
`by law to contain metal stripping so that it can be located by surveying crews. Some of the undiscovered PVC pipeline
`in this case did not contain metal stripping, as it was placed before the enactment of the law, making it nearly impossible
`for an above-ground surveying crew to detect it.
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`companies to share their survey data. El Paso provided Gullett’s full survey to potential bidders, and
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`there is nothing to suggest that bidders were confused about the extent of El Paso’s due diligence,
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`which consisted of hiring Gullett to map the pipeline route using an M-scope and visual inspection
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`to locate foreign crossings. Nor is there anything in the contract to indicate that the parties intended
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`El Paso to have any additional due diligence obligation.
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`The dissent argues that El Paso’s due diligence did not meet the industry standard because
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`El Paso did not locate and disclose 85-90% of foreign crossings. As the dissent notes, we have
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`discussed due diligence in terms of industry practice. ___ S.W.3d at ___ (citing Exxon Corp. v.
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`Emerald Oil & Gas Co., L.C., 348 S.W.3d 194, 206 (Tex. 2006)). But the dissent essentially ignores
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`the industry practice for locating foreign crossings on pipelines more than fifty years old, focusing
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`on a numerical standard that is not supported by the record, which it believes should apply in every
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`case. Moreover, the dissent disregards the parties’ agreement that MasTec, which was given the
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`complete alignment sheets and blank contract before it submitted a bid, acknowledged and assumed
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`the risk of unknown foreign crossings, “notwithstanding” any other provision in the contract or any
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`information furnished by El Paso. MasTec agreed that the work to be performed under the contract,
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`including “all . . . procedures and techniques necessary to perform the Work,” which required
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`MasTec to “fully acquaint[] itself with the site . . . accessibility, soil structure, subsurface conditions,
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`obstruction and all other conditions pertaining to the Work,” was consistent with “accepted industry
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`standards.” Were we to hold, as the dissent would have us do, that locating less than 85-90% of
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`foreign crossings is evidence of failure to exercise due diligence, we would disallow parties to define
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`by contract what sort of diligence is due or to allocate by agreement the risk of additional unknown
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`foreign crossings, a result that runs counter to the freedom to contract. See Gym-N-1 Playgrounds,
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`Inc. v. Snider, 220 S.W.3d 905, 912 (Tex. 2007). We refuse to amend the contract judicially to
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`substitute an unsupported standard for the contracted-for requirement that El Paso “will have
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`exercised due diligence.”
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`El Paso’s initial obligation to have exercised due diligence does not limit the risk allocated
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`to MasTec for omissions and inaccuracies in El Paso’s foreign crossings information. In fact, the
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`record indicates that MasTec understood the joint obligation contemplated by the contract.
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`MasTec’s comptroller for the project testified that “[i]t’s standard procedure in every job” for the
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`contractor to survey a pipeline’s right-of-way to identify foreign crossings and their exact location.
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`He further testified that such work was within MasTec’s scope of work under this contract, and that
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`MasTec’s bid included the cost of hiring a surveying crew to locate foreign crossings. MasTec
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`included a 15% markup in the bid as a contingency for undiscovered foreign crossings, higher than
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`the 10% usually included for similar projects. Additionally, MasTec’s senior vice president
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`acknowledged that, under Article 7.1(e) of the contract (“anything in this Contract . . .
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`notwithstanding”), MasTec assumed the risk of unknown foreign crossings. In its response to El
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`Paso’s motion for judgment notwithstanding the verdict, MasTec even admitted that if El Paso
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`exercised due diligence in identifying foreign crossings, “MasTec would be responsible for the costs
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`associated with those crossings unidentified on the Drawings.” The problem arises in this case
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`because although MasTec understood the risk of underground surprises and knew it assumed the risk
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`for such surprises, even including a contingency markup in its bid, MasTec, which was new to
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`pipeline construction, underestimated the amount of that risk and submitted a very low bid. The role
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`of the courts is not to protect parties from their own agreements, but to enforce contracts that parties
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`enter into freely and voluntarily. See Wood Motor Co. v. Nebel, 238 S.W.2d 181, 185 (Tex. 1951).
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`MasTec argues that our construction of the contract renders meaningless other provisions,
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`such as those relating to weather conditions, acts of God, and bodily injury. But those conditions
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`and circumstances do not arise in the context of the physical environment of the pipeline’s path, and
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`thus do not fall within the plain language of the “all risks” provision at issue here, which limits the
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`risks MasTec assumed to “conditions pertaining to the Work.” The fact that those other risks are
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`expressly addressed elsewhere in the contract does not affect the meaning of the “all risks”
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`provisions in 7.1(e) and 8.1(a)(7). In fact, those other contract provisions support our reading of the
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`contract because they show that the parties knew how to state clearly when some risks were not to
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`be assumed by MasTec.
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`Our jurisprudence supports this construction of the contract. In Lonergan v. San Antonio
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`Loan & Trust Co., we held that for an owner to be liable to a contractor for a breach of contract
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`based on faulty construction specifications, the contract must contain terms that could fairly imply
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`the owner’s “guaranty of the sufficiency of the specifications,” which were provided to the owner
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`by an architect. 104 S.W. at 1066. Here, as in Lonergan, El Paso did not guarantee the accuracy of
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`Gullett’s alignment sheets. El Paso and MasTec both relied on what Gullett’s surveyors were able
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`to locate, with the negotiated provision that MasTec would confirm the surveyor’s work and assume
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`the risks of “subsurface conditions, obstructions, and other conditions pertaining to the Work.” We
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`adhere to the “practically . . . universal rule” that “where one agrees to do, for a fixed sum, a thing
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`possible to be performed, he will not be excused or become entitled to additional compensation,
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`because unforeseen difficulties are encountered.” City of Dallas v. Shortall, 114 S.W.2d 536, 540
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`(Tex. 1938) (internal quotation marks omitted).
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`Someone has to bear the loss of the additional costs of constructing the pipeline around the
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`undiscovered foreign crossings. As in Lonergan, “the parties were each competent to contract, and
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`there is no circumstance indicating the slightest unfairness in the transaction.” 104 S.W. at 1065.
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`While MasTec was new to this type of construction project, it is a sophisticated party and
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`presumably had experienced attorneys review the contract. See Schlumberger Tech. Corp. v.
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`Swanson, 959 S.W.2d 171, 179 (Tex. 1997) (allowing sophisticated parties to contractually preclude
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`a claim for fraudulent inducement); see also Italian Cowboy Partners, Ltd. v. Prudential Ins. Co.
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`of Am., 341 S.W.3d 323, 350 (Tex. 2011). And there is nothing to suggest that the contractual
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`provisions at issue here are unique or novel. Sophisticated parties, like all parties to a contract, have
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`“an obligation to protect themselves by reading what they sign.” Thigpen v. Locke, 363 S.W.2d 247,
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`253 (Tex. 1962). Ultimately, this contract “constitute[s] the allocation by market participants of
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`risks and benefits” regarding the pipeline’s construction. Provident Life Ins. & Accident Ins. Co. v.
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`Knott, 128 S.W.3d 211, 220 (Tex. 2003). “The Court’s role is not to redistribute these risks and
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`benefits but to enforce the allocation that the parties previously agreed upon.” Id. (citing 11
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`RICHARD A. LORD, WILLISTON ON CONTRACTS § 31.5 (4th ed. 2003)).
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`We have an obligation to construe a contract by the language contained in the document. We
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`have “long recognized Texas’ strong public policy in favor of preserving the freedom of contract.”
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`Fairfield Ins. Co. v. Stephens Martin Paving, L.P., 246 S.W.3d 653, 664 (Tex. 2008); see also Wood
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`Motor Co. v. Nebel, 238 S.W.3d 181, 185 (Tex. 1951). “Freedom of contract allows parties to . . .
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`allocate risk as they see fit.” Gym-N-I Playgrounds, Inc., 220 S.W.3d at 912. Contract enforcement
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`is an “indispensable partner” to the freedom of contract. Fairfie