Brito v. Intex Aviation Services, Inc.

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

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.

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.

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 adopted the plan, and that execution of a waiver was necessary for enrollment in the plan. Materials, Exhibit "1B."

(3) Brito signed the waiver on August 25, 1992.³ Materials, Exhibit "1C." The pertinent parts of the waiver stated:

MY SIGNATURE BELOW CONFIRMS I UNDERSTAND AND AGREE TO THE FOLLOWING:

1. ON AND AFTER FEBRUARY 1, 1992, INTEX AVIATION SERVICES,

INC. (THE COMPANY) WILL BE A NONSUBSCRIBER UNDER THE TEXAS WORKERS' COMPENSATION ACT (THE "ACT"). UNDER SECTIONS 1 AND 4 OF THE ACT AS IN EFFECT UNTIL JANUARY 1, 1991, AND UNDER SECTIONS 3.03 AND 3.04 OF THE ACT AS IN EFFECT THEREAFTER:

(A) AN EMPLOYEE OF A NONSUBSCRIBER IS ENTITLED TO BRING LEGAL ACTION AGAINST HIS EMPLOYER, AND IF HE PREVAILS, TO RECOVER JUDGMENT AGAINST HIS EMPLOYER, FOR ANY DAMAGES SUSTAINED BY REASON OF ANY PERSONAL INJURY RECEIVED IN THE COURSE OF HIS EMPLOYMENT, OR BY REASON OF DEATH RESULTING FROM SUCH INJURY;

(B) IN SUCH AN ACTION, IT IS NOT A DEFENSE THAT THE EMPLOYEE WAS GUILTY OF CONTRIBUTORY NEGLIGENCE, THAT THE INJURY OR DEATH WAS CAUSED BY THE NEGLIGENCE OF A FELLOW EMPLOYEE, OR THAT THE EMPLOYEE HAD ASSUMED THE RISK OF INJURY OR DEATH;

(C) THE EMPLOYER MAY DEFEND SUCH AN ACTION ON THE GROUND THAT THE INJURY WAS CAUSED BY THE WILLFUL INTENTIONAL ACT OF THE EMPLOYEE TO BRING ABOUT THE INJURY, OR WAS SO CAUSED WHILE THE EMPLOYEE WAS IN A STATE OF INTOXICATION; AND

(D) IN ANY SUCH ACTION THE EMPLOYEE, IN ORDER TO RECOVER, MUST PROVE NEGLIGENCE OF THE EMPLOYER OR SOME AGENT OR SERVANT OF THE EMPLOYER ACTING WITHIN THE GENERAL SCOPE OF HIS EMPLOYMENT.

. . . . .

3. IN CONSIDERATION OF MY ELECTION TO ENROLL IN, AND THUS BECOME ELIGIBLE TO RECEIVE BENEFITS UNDER, THE PLAN I HEREBY WAIVE MY RIGHTS UNDER THE ACT, ANY OTHER STATUTE, OR COMMON LAW TO BRING LEGAL ACTION AND RECOVER JUDGMENT AGAINST THE COMPANY, AND/OR ITS DIRECTORS, OFFICERS, AGENTS AND EMPLOYEES, FOR ANY DAMAGES SUSTAINED BY REASON OR ANY PERSONAL INJURY RECEIVED IN THE COURSE OF MY EMPLOYMENT BY THE COMPANY, OR BY REASON OF DEATH RESULTING FROM SUCH INJURY. BY ELECTING TO ENROLL IN THE PLAN, I AGREE THAT BENEFITS PAYABLE UNDER THE PLAN SHALL BE THE EXCLUSIVE REMEDY FOR ME OR MY LEGAL BENEFICIARIES ARRIVING FROM SUCH ANY PERSONAL INJURY OR DEATH.

Id.

(4) Brito reported to Intex that on or about September 19, 1992, he sustained an on the job injury. Materials, Exhibit "1" at 3.

The court concludes that, by his execution of the waiver on August 25, 1992, Brito waived his right to recover for the causes of action he presently asserts. The waiver constitutes a condition contained in an employee benefit plan, as defined by the Employee Retirement Income Security Act ("ERISA"). 29 U.S.C. §§ 1001-1461 (1985). Nevertheless, because Brito's negligence and gross negligence claims do not "relate to," and are thus not preempted by, ERISA, the operation of the waiver upon such claims is to be determined under Texas law principles. See Texas Health Enterprises v. Reece, 44 F.3d 243, 244-45 (5th Cir.1994); see also Hook v. Morrison Milling Co., 38 F.3d 776, 779 n. 4 (5th Cir.1994).

Under Texas law, the elements Intex's waiver defense are: (1) the existence of a right held by the waiving party; (2) knowledge, actual or constructive, by that party of its existence; and (3) an actual intent by that party to relinquish the right, which can be inferred from conduct. Vessels v. Anschutz Corp., 823 S.W.2d 762, 765 (Tex.App. — Texarkana 1992, writ denied); FDIC v. Attayi, 745 S.W.2d 939, 946 (Tex.App. — Houston 1st Dist. 1988, no writ). The court finds that Intex has established by uncontroverted evidence the elements of waiver, that is, that Brito had, as an employee of a nonsubscriber under the Act, the right to assert causes of action under the common law against Intex for job related injuries, he received notice of that right by the first paragraph of the waiver, and he voluntarily signed the waiver, thus inferring an actual intent to waive that right.

Brito cites two cases for the proposition that a waiver of the right to seek statutory or common law remedies for personal...