Alashmawi v. Ibp, Inc.

• Decision Date: 12 July 2001
• Docket Number: No. 07-00-0269-CV.,07-00-0269-CV.
• Citation: 65 S.W.3d 162
• Parties: Amr ALASHMAWI, Appellant, v. IBP, INC., Appellee.
• Court: Texas Court of Appeals

65 S.W.3d 162

Amr ALASHMAWI, Appellant, v. IBP, INC., Appellee.

No. 07-00-0269-CV.

Court of Appeals of Texas, Amarillo.

July 12, 2001.

Opinion on Overruling of Rehearing August 21, 2001.

Rehearing Overruled October 3, 2001.

Wood Law Firm, LLP, James H. Wood, Chaney F. Wood, Amarillo, for appellant.

Underwood Wilson Berry Stein & Johnson PC, Kelly Utsinger, Charles A. Mallard, Fred A. Stormer, Amarillo, for appellee.

Before QUINN and REAVIS and JOHNSON, JJ.

DON H. REAVIS, Justice.

By this appeal, appellant Amr Alashmawi challenges the trial court's order granting summary judgment that he take nothing against appellee IBP, Inc. on his common law cause of action for personal injuries sustained by him while in the course and scope of his employment with IBP and his action for breach of contract. In connection with his general issue,¹ Alashmawi presents seven sub-issues, to wit: 1) whether there is more than a scintilla of evidence raising a genuine issue of material fact on all challenged elements of his claim for negligence, and 2) on all challenged elements of his contract defenses of fraud, duress, undue influence, and lack of capacity; 3) whether IBP established as a matter of law all essential elements of its affirmative defenses of waiver, election, release, and Workplace Injury Settlement Program-Texas² (WISP) dispute-resolution and administrative-remedies provisions; 4) whether IBP established as a matter of law all essential elements of its affirmative defenses of ratification, estoppel, and lack of due diligence; 5) whether there is more than a scintilla of evidence raising a genuine issue of material fact on all challenged elements of his section 32.46 claim; 6) whether IBP established as a matter of law that his state law claims and contract defenses are preempted by ERISA;³ and 7) whether the trial court had jurisdiction over his alternative claim for breach of contract. Based upon the rationale expressed herein, we reverse and remand in part and affirm in part.

IBP did not provide workers' compensation insurance coverage and elected to become a non-subscriber. Tex. Lab.Code Ann. § 406.002 (Vernon 1996). Instead, IBP established WISP, which provides benefits summarized in part as follows:

PREAMBLE

The IBP Workplace Injury Settlement Program—Texas is an employee welfare benefit program offered by IBP to its Texas employees (and to those of its subsidiaries doing business in Texas) to provide certain payments for damages resulting from work related personal injuries. This ERISA program (Exhibit B) is designed to provide such employees with benefits that are equivalent to—and in many ways superior to—those provided by Texas Workers' Compensation, to which IBP does not subscribe.

Beyond serving as an alternative to Workers' Compensation for Texas employees, the Program is part of an overall Occupational Health and Safety program aimed at enhancing the quality of employment at IBP through improved employee health, increased productivity, reduced absenteeism as well as turnover and improved employee relations. The Program contributes to these aims by its availability, superior benefits, understandability and caring in-house administration.

By accepting the Program, an employee settles his or her negligence claim with the Company and waives any right of action at common law or under any statute to recover damages for personal injuries, or death, sustained in the course and scope of employment. The Program provides that any dispute relating to the Program shall be resolved by binding arbitration.

Because this is an appeal from a summary judgment only the facts necessary for our analysis will be presented. Alashmawi worked in a laboratory at IBP and sustained burns and injuries when a bottle of nitric acid broke. After sustaining the injuries, Alashmawi read the 30-plus page WISP plan and signed the acceptance and waiver. According to the plan, Alashmawi's voluntary participation began when he signed the post-injury waiver. In exchange for being able to participate in the no-fault program, an injured employee agrees not to bring a civil action against IBP. The waiver signed by Alashmawi provided:

I have been injured at work and want to apply for payments offered by IBP to me under its Workplace Injury Settlement Program. To qualify, I understand I must accept the rules of the Program. I have been given a copy of the Program Summary. I accept the Program.

I understand I am giving up the right to sue the Company and perhaps others because of my injury. I understand that the Company would not be able to use certain common law defenses against me, but that the Company would never pay anything until a court decided that the Company caused my injury since the Company does not provide benefits under the Texas Workers' Compensation laws. I am giving up any right I or any family member have to sue either the Company or anyone for whom the Company is responsible in exchange for being able to participate in the Program.

After Alashmawi received some medical care and benefits under WISP, and notwithstanding his execution of the acceptance and waiver, approximately six months later, he filed suit against IBP seeking to recover for his personal injuries at common law, and among other things, seeking to set aside his execution of the waiver on common law grounds of fraud, duress, and undue influence.⁴ See Lambert v. Affiliated Foods, Inc., 20 S.W.3d 1 (Tex.App.-Amarillo 1999), aff'd, 44 S.W.3d 544, 44 Tex. Sup.Ct. J. 555 (2001). After IBP's first motion for summary judgment was denied, Alashmawi filed his third amended petition, reasserting his original claims and also contending for the first time that (1) by having him execute the acceptance and waiver, IBP violated section 32.46 of the Texas Penal Code, thereby vitiating the applicability of the cap as to punitive damages, and also alleged (2) that the consideration for the acceptance and waiver failed, at least in part. This amended pleading prompted IBP to file its second motion for summary judgment.

After referencing Alashmawi's new claims that section 32.46 of the Penal Code applied to vitiate the cap on punitive damages and alleging failure of consideration for the acceptance and waiver, in whole or part, by paragraph 4 of its second motion, IBP asserted:

4. IBP has filed this Motion for Partial Summary Judgment because, as to these new claims of Plaintiff, there exists no genuine issue of any material fact. Furthermore, these new claims further illustrate the applicability of Defendant's previously plead defenses that Plaintiff failed to exhaust the available administrative remedies under IBP's ERISA governed Workplace Injury Settlement Program, and that Plaintiff's claims are preempted by ERISA.

(Emphasis added). IBP concluded its second motion requesting that the trial court grant summary judgment:

• as to Plaintiff's claims under § 32.46 of the Texas Penal Code,

• in the alternative as to all of Plaintiff's claims for failure to exhaust his administrative remedies under the WISP,

• in the alternative, as to all of Plaintiff's claims on the basis of ERISA preemption.

Despite the language in IBP's motion for partial summary judgment, the trial court's order recites that it reconsidered the first motion for summary judgment together with the second motion and "is of the opinion that the Motions for Summary Judgment should be granted as to all claims asserted by Plaintiff."⁵ Following the Supreme Court's most recent opinion addressing finality of summary judgments, we have jurisdiction to consider this appeal. Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex.2001). Thus, we proceed with our analysis and consider only such theories in support of or in opposition to the motions which were presented in writing and considered by the trial court. Travis v. City of Mesquite, 830 S.W.2d 94, 99-100 (Tex.1992); Casso v. Brand, 776 S.W.2d 551, 553 (Tex.1989). Because IBP's motions presented combination traditional and no-evidence motions for summary judgment, we will discuss the appropriate standards of review; but first, we must determine which law controls for purposes of our review.

ERISA: What Law Controls

We begin our analysis by considering sub-issue six, by which Alashmawi contends that IBP did not establish as a matter of law that his state law claims and contract defenses were preempted by ERISA. We agree. ERISA was enacted in 1974 as a comprehensive statute designed to promote the interest of employees and their beneficiaries in employment benefit plans. Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 90, 103 S.Ct. 2890, 2896, 77 L.Ed.2d 490 (1983). Among other things, it imposes participating, funding, and vesting requirements on pension plans and sets various uniform standards, including rules concerning reporting disclosure and fiduciary responsibility for both pension and welfare plans. Congress also provided that a participant or beneficiary of a plan may bring a civil action to enforce an ERISA plan, 29 U.S.C. § 1132, and an action filed in state court may be removed to federal court under 28 U.S.C. § 1446. Hook v. Morrison Milling Co., 38 F.3d 776, 779 (5th Cir.1994). Although ERISA preemption was not raised in Martinez v. IBP, Inc., 961 S.W.2d 678 (Tex.App.-Amarillo 1998, pet. denied), and IBP did not seek to remove this proceeding to federal court, IBP now contends that Alashmawi's claims designated above are preempted by 29 U.S.C. § 1144(a) which provides:

§ 1144. Other laws.

(a) Supersedure; effective date

Except as provided in subsection (b) of this section the provisions of this subchapter and subchapter III of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003(a) of this title and not exempt under section 1003(b) of this title. This section shall take effect on January 1, 1975.

IBP argues that ERISA preempts all claims including...