# BNSF Ry. Co. v. Deacero Supreme Court of Texas, No. 24-0973 **BNSF Ry. Co. v. Deacero, No. 24-0973, is before the Supreme Court of Texas. Key issue: Is an indemnity term in an online rule book incorporated by reference into a shipping contract "conspicuous" under Dresser when the term is textually conspicuous within the rule book, or must something on the face of the contract itself draw attention to it?** Practice areas: indemnity ## Key issues - Is an indemnity term in an online rule book incorporated by reference into a shipping contract "conspicuous" under Dresser when the term is textually conspicuous within the rule book, or must something on the face of the contract itself draw attention to it? - If the term is inconspicuous, should the Court revisit Dresser's conspicuousness requirement for contracts between sophisticated commercial parties? ## Factual History BNSF Railway, a Class I railroad, and Deacero, a Mexican manufacturer of wire products, entered more than forty "Price Authority" shipping contracts over seven years, each incorporating BNSF's 6100-Series Rules Book on its first page (Brief on the Merits (Petitioner), PDF pp. 15, 26). The rule book includes railcar loading rules making the shipper responsible for loading and securing cargo and an all-caps "Liability and Indemnity" provision requiring Deacero to indemnify BNSF for losses from improper loading, even if BNSF's negligence contributed (Brief on the Merits (Petitioner), PDF pp. 30-31). Deacero says the 21-page Price Authority never mentions indemnity, that the rule book is an 80-page website document, and that it was unaware of the risk-shifting term (Brief on the Merits (Respondent), PDF pp. 17, 23-25). In October 2019 Deacero loaded a boxcar in Guanajuato, the wire spools shifted and the door protruded, and on November 13, 2019 a BNSF employee, Donald Seeberger, was struck and injured by it (Brief on the Merits (Petitioner), PDF pp. 31-32). ## Procedural History Seeberger sued BNSF under the Federal Employers' Liability Act and sued Deacero for negligence; BNSF cross-claimed against Deacero for contractual indemnity, and Seeberger's claims were later settled (Brief on the Merits (Petitioner), PDF p. 33; Brief on the Merits (Respondent), PDF pp. 22-23). On cross-motions for summary judgment the trial court granted BNSF's motion, denied Deacero's, and entered judgment that BNSF is entitled to indemnity (Brief on the Merits (Respondent), PDF p. 23). The Fourteenth Court of Appeals reversed on conspicuousness and remanded BNSF's alternative actual-knowledge ground, reasoning that the generic reference to the rule book, in the sixth of nine bullet points in the same type as the surrounding text, gave no fair notice of a risk-shifting indemnity clause, and that even counting the rule book as part of the contract the clause was inconspicuous because of document length, lack of contrasting display, and no notice of how to find it (Brief on the Merits (Respondent), PDF pp. 24-25). In an earlier appeal on Deacero's special appearance, the court of appeals held Deacero purposely availed itself of Texas by agreeing to follow BNSF's contract rules, including loading protocols (Brief on the Merits (Petitioner), PDF p. 34). The Court granted review on June 19, 2026. ## Issues Presented - BNSF (Brief on the Merits (Petitioner), PDF p. 20): whether the court of appeals erred in holding that an "otherwise conspicuous" indemnity term became inconspicuous because of its location in an incorporated online agreement, when Texas law requires conspicuousness in the "body" of an agreement, the body includes incorporated documents, and conspicuous terms have been enforced at the beginning, middle and end of contracts and in incorporated documents. - Deacero (Brief on the Merits (Respondent), PDF p. 10): whether the court of appeals correctly applied *Dresser*, under which an indemnity provision that extraordinarily shifts risk must be conspicuous, absent actual knowledge, to give fair notice. ## Standard(s) of Review Both sides argue conspicuousness as a question of law on cross-motions for summary judgment (Brief on the Merits (Respondent), PDF p. 23; Reply Brief (Petitioner), PDF p. 39). ## Legal Arguments **Whether the indemnity term is conspicuous.** **BNSF (Petitioner):** The provision is an "otherwise conspicuous," standalone, all-caps term in a document the Price Authority incorporates on its first page, and the court of appeals created a new test by holding it inconspicuous because the contract's face did not mention indemnity (Brief on the Merits (Petitioner), PDF p. 39). *Dresser* requires distinctive text in the body, not on the first page, and the body of an agreement includes documents incorporated by reference (Brief on the Merits (Petitioner), PDF p. 5). In reply, BNSF says the whole agreement is the "body," that Deacero injects a location-dispositive standard found nowhere in *Dresser*, and that the term has been conspicuous in forty contracts over seven years (Reply Brief (Petitioner), PDF pp. 2, 39). **Deacero (Respondent):** *Dresser* plainly requires considering an indemnity provision's location along with other factors, and the court below imposed no first-page rule, did not disallow incorporation by reference, and did not excuse parties from reading their contracts (Brief on the Merits (Respondent), PDF pp. 2-3). It adds that BNSF abandoned any challenge to the ruling that the separate 90010 rule book indemnity provisions are inconspicuous (Brief on the Merits (Respondent), PDF pp. 22, 26). **Whether to revisit *Dresser*.** **Deacero (Respondent):** The Court should reject BNSF's call to revisit *Dresser*, because the stare decisis factors do not justify overruling it, weakening the rule would put Texas out of step, and BNSF's fifty-state survey and "accessibility" contentions are unhelpful (Brief on the Merits (Respondent), PDF p. 3). ## Stated Reasons the Court Should Take the Case BNSF argued that the court of appeals' holding conflicts with *Dresser* and creates multiple conflicts and uncertainty, because conspicuousness requires textual distinction in the body of an agreement and the body is the whole agreement (Reply to Response to Petition filed (Petitioner), PDF p. 2). Deacero argued that the court of appeals correctly applied *Dresser* and decades of precedent, so the petition presents no issue warranting review (Response to Petition (Respondent), PDF p. 19). ## Practice Area Tags indemnity ## Procedural Posture/Vehicle Petition for review from the Fourteenth Court of Appeals (Houston); granted June 19, 2026. Oral argument: November 3, 2026. ## Amicus Involvement - An amicus curiae brief and a letter were filed; they are not summarized here. --- Source: The SCOTX Report, https://scotxreport.com/cases/24-0973. AI-generated summary of the Court's opinion, orders and the parties' briefs, with pin cites to the page of each document; verify against the Court's own documents at search.txcourts.gov.