Brito v. Intex Aviation Services, Inc., 4:94-CV-660-A.

• Court: United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
• Citation: 879 F. Supp. 650
• Docket Number: No. 4:94-CV-660-A.,4:94-CV-660-A.
• Parties: Raul BRITO, Plaintiff, v. INTEX AVIATION SERVICES, INC., and Delta Air Lines, Inc., Defendants.
• Decision Date: 20 March 1995

879 F. Supp. 650

Raul BRITO, Plaintiff,
v.
INTEX AVIATION SERVICES, INC., and Delta Air Lines, Inc., Defendants.

No. 4:94-CV-660-A.

United States District Court, N.D. Texas, Fort Worth Division.

March 20, 1995.

879 F. Supp. 651

Jay K. Gray, Law Offices of Charles Noteboom, Hurst, TX, for Raul Brito.

Mia M. Martin, Thompson & Knight, Dallas, TX, for Intex Aviation Services, Inc.

Debra Stahl Fitzgerald, Crouch & Hallett, Dallas, TX, for Delta Airlines, Inc.

MEMORANDUM OPINION AND ORDER

McBRYDE, District Judge.

Before the court for decision in the above-styled and numbered action is the motion of defendant Intex Aviation Services, Inc., ("Intex") for summary judgment. After considering the motion, the brief in support thereof ("Brief"), the response, as amended,¹ of plaintiff, Raul Brito, ("Brito"), the reply thereto, the applicable authorities, and other pertinent parts of the record, the court finds that the motion should be granted.

I.

Brito's Claims

Brito asserts claims against defendants, Delta Air Lines, Inc., ("Delta") and Intex for recovery of damages he alleges he suffered while working for Intex. Plaintiff's Original Petition at 3. He alleges that he was an employee of Intex, a company that contracted with Delta to clean airplanes at the Dallas/Fort Worth Airport, that in September 1992, as he was exiting from a Delta DC-9 aircraft he had cleaned, he was injured when he slipped on grease on the stairway, and that his injury was caused by the negligence and gross negligence of Intex and Delta. Id. at 2-3.

II.

The Motion, Brief, Response, and Reply

Intex alleges that: Prior to Brito's accident, Intex rejected coverage under the Texas Worker's Compensation Act ("the Act"), and established a voluntary occupational insurance plan ("the plan"), in which employees could enroll by executing, inter alia, a waiver ("the waiver") by which they agreed to waive all rights under the Act, any other statute, or under common law, to assert legal action against Intex for work related injuries and agreed that the plan would be the sole source of recovery for such injuries. Brief at 3. Brito elected to participate in the plan, he signed the waiver on August 25, 1992, and he received and retained medical benefits and wage replacement benefits under the plan for his September 1992 injury. Id. at 2.

Intex asserts that summary judgment is appropriate because (1) Brito's claims against Intex arising out of his September 19, 1995, work related injury are barred by the waiver, id. at 5; (2) Brito ratified the waiver by accepting benefits under the plan for his injury,² id. at 6-8; and, (3) Brito is estopped from asserting his claims under the quasi-estoppel doctrine, by nature of having accepted the benefits under the plan. Id. at 8-10.

879 F. Supp. 652

In his response, Brito asserts that the waiver is unenforceable under Texas law because it contravenes the Act, that it is void under Tex.Lab.Code.Ann. § 406.035, prohibiting waivers of compensation, that, because the waiver is void, it cannot be ratified or saved by estoppel, and that he did not understand the meaning and consequences of the waiver when he signed it because it was not explained to him. Response at 4-7.

In its reply, Intex distinguishes from the instant action the authorities upon which Brito relies to support his contention that the waiver is unenforceable, and reasserts its ratification and estoppel arguments.

III.

Applicable Summary Judgment Principles

A party is entitled to summary judgment on all or any part of a claim as to which there is no genuine issue of material fact and as to which the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). The moving party has the initial burden of showing that there is no genuine issue of material fact. Anderson, 477 U.S. at 256, 106 S.Ct. at 2514. The movant may discharge this burden by showing an absence of evidence to support the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986). Once the moving party has carried its burden under Rule 56(c), the non-moving party must do more than merely show that there is some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). The party opposing the motion may not rest on mere allegations or denials of pleading, but must set forth specific facts showing a genuine issue for trial. Anderson, 477 U.S. at 248, 256, 106 S.Ct. at 2514. An issue is material only if its resolution could affect the outcome of the action. Id. at 248, 106 S.Ct. at 2510. Unsupported allegations, conclusory in nature, are insufficient to defeat a proper motion for summary judgment. Simmons v. Lyons, 746 F.2d 265, 269 (5th Cir.1984).

The Fifth Circuit explained the burden placed on the nonmovant:

When the nonmovant fails to make a sufficient showing on an essential element of her case, the moving party is entitled to summary judgment "since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial."

McKee v. City of Rockwall, Texas, 877 F.2d 409, 414-15 (5th Cir.1989) (quoting Celotex Corp., 477 U.S. at 323, 106 S.Ct. at 2552), cert. denied, 493 U.S. 1023, 110 S.Ct. 727, 107 L.Ed.2d 746 (1990).

IV.

Analysis

The relevant summary judgment evidence establishes that:

(1) On February 1, 1992, Intex rejected coverage under the Act, concurrently with establishing the plan. Materials Submitted in Support of Defendant's Motion for Summary Judgment ("Materials"), Exhibit "1" at 2.

(2) Brito began employment with Intex on August 25, 1992. Id. On that same date, he acknowledged receipt of notice that Intex rejected coverage under the Act, that Intex...