Castellow v. Swiftex Manufacturing Corp.

CourtCourt of Appeals of Texas
Writing for the CourtBefore Chief Justice Aboussie; Bea Ann Smith
Citation33 S.W.3d 890
Parties(Tex.App.-Austin 2000) Helen F. Castellow, Appellant v. Swiftex Manufacturing Corporation, Individually and d/b/a Swiftex, Inc., Appellee NO. 03-00-00287-CV
Decision Date07 December 2000

Page 890

33 S.W.3d 890 (Tex.App.-Austin 2000)
Helen F. Castellow, Appellant
Swiftex Manufacturing Corporation, Individually and d/b/a Swiftex, Inc., Appellee
NO. 03-00-00287-CV
December 7, 2000
Rehearing Overruled Jan. 19, 2001.


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Before Chief Justice Aboussie, Justices B. A. Smith and Patterson.

Bea Ann Smith, Justice.

Appellant Helen F. Castellow sued her employer, appellee Swiftex Manufacturing Corporation (Swiftex), for negligence that proximately caused injuries she incurred in the course of her employment. Swiftex is not a subscriber to workers' compensation insurance but offers a private benefit plan that requires an employee to waive her common-law remedies for the employer's negligence in causing on-the-job injuries. The trial court granted Swiftex's motion for summary judgment which asserted waiver, ratification, and estoppel. The sole issue appellant raises on appeal is whether the waiver Castellow signed is unenforceable because it violates public policy. We hold that the waiver thwarts the intent of the legislature embodied in the statutory workers' compensation scheme and reverse the trial court's summary judgment in favor of Swiftex.


Castellow was hired in January 1998. Swiftex did not subscribe to workers' compensation insurance but instead offered its own "Employee Safety Program Benefit Plan" (the Plan). The parties stipulate that participation in the Plan was voluntary

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but required a waiver of all common-law remedies against Swiftex for on-the-job injuries. Castellow elected to participate in the Plan and signed the waiver, relinquishing her right to sue Swiftex or its employees for injuries or death sustained in the course of her employment that resulted from the sole or concurrent negligence of Swiftex. The waiver provided in bold language, "My only remedy will be to receive benefits under the Plan."

In February 1999, Castellow was injured after tripping over a cord in her work area, which she described as "small and cramped." Castellow made a claim and received medical and wage replacement benefits under the Plan. She has never paid back any of these benefits.

Ignoring the terms of the waiver, Castellow filed this suit in June 1999 alleging that Swiftex's negligence in failing to provide a safe work environment proximately caused her injuries. In September, Swiftex filed a motion for summary judgment asserting that Castellow's claims were barred because she had agreed to waive her claims by voluntarily electing to participate in the Plan; that she ratified the waiver by accepting and not returning, or offering to return, the benefits she received; and that she is estopped from adopting an inconsistent position by suing Swiftex.

Castellow did not file a response or appear at the summary-judgment hearing. The trial court granted Swiftex's motion on November 3, 1999, without stating its grounds. Castellow filed a response to the motion for summary judgment on December 16. On January 6, 2000, Castellow appealed the court's granting summary judgment, and on January 24, she filed a motion for new trial.


Because the propriety of a summary judgment is a question of law, we review the trial court's decision de novo. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994); Texas Dep't of Ins. v. American Home Assurance Co., 998 S.W.2d 344, 347 (Tex. App.--Austin 1999, no pet.). The standards for review of a summary judgment are well-established: (1) the movant must show there is no genuine issue of material fact and that it is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, the court must take evidence favorable to the nonmovant as true; and (3) the court must indulge every reasonable inference in favor of the nonmovant and resolve any doubts in the nonmovant's favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). Swiftex has the burden of showing that Castellow could not succeed on any theory pleaded. See San Antonio Express News v. Dracos, 922 S.W.2d 242, 247 (Tex. App.--San Antonio 1996, no writ). When the trial court's summary judgment does not specify the grounds relied upon, we must affirm the court's judgment if any of the summary-judgment grounds is meritorious. Bradley v. State ex rel. White, 990 S.W.2d 245, 247 (Tex. 1999).

Castellow's sole challenge to the summary judgment in Swiftex's favor is her assertion that the waiver she signed is unenforceable because its terms are contrary to public policy. Whether an agreement violates public policy is a question of law, which we review de novo. Reyes v. Storage & Processors, Inc., 995 S.W.2d 722, 726 (Tex. App.--San Antonio 1999, pet. denied). Castellow concedes that if the waiver is not contrary to public policy, it is otherwise enforceable.

Preservation of Error

Swiftex argues that Castellow failed to preserve error in two ways: first, by failing to appeal all three points on which the summary judgment could have been based; and second, by not presenting the issue on appeal to the trial court prior to its ruling on the motion for summary judgment.

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Swiftex maintains that the summary judgment must be affirmed because Castellow failed to attack every possible ground upon which the trial court based its summary judgment and she did not assert a general assignment of error in granting the summary judgment. See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970). General assignment of error, or specific attack on each ground on which the summary judgment was possibly based, is not necessary here because disposition of the public policy issue necessarily disposes of the entire case. If the waiver contravenes public policy and is unenforceable, then Swiftex's ratification and estoppel arguments fail. See Peniche v. Aeromexico, 580 S.W.2d 152, 157 (Tex. Civ. App.--Houston [1st Dist.] 1979, no writ) ("It is well settled that an illegal contract cannot be ratified or saved by estoppel."). If the waiver is enforceable, then Castellow concedes that waiver, estoppel, and ratification will defeat her cause of action. See Reyes, 995 S.W.2d at 726. Castellow clearly states her issue on appeal and concisely argues that the waiver is unenforceable as a matter of public policy. This is sufficient to preserve this issue for our review. See id. at 725.

Next, Swiftex argues that Castellow failed to present to the trial court, in writing, her contention that the waiver is unenforceable prior to the hearing on Swiftex's motion for summary judgment. The non-movant must expressly present to the trial court, by written answer or response to the motion, those issues that would defeat the movant's right to a summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 679 (Tex. 1979). If the non-movant fails to do so, she may not later assign those issues as error on appeal. Id. "[B]oth the reasons for the summary judgment and the objections to it must be in writing before the trial judge at the hearing." Id. at 677. The exception to this rule is when "the grounds expressly presented to the trial court by the movant's motion are insufficient as a matter of law to support summary judgment." Id. at 678.

In her motion for new trial, Castellow asserted that, as a matter of law, the waiver she signed is unenforceable because it offends public policy. Her motion for new trial was overruled by operation of law. See Tex. R. Civ. P. 329b(b). She was not required to file an answer to the motion for summary judgment to preserve her contention that the grounds for summary judgment are insufficient as a matter of law. See Guzman v. Carnevale, 964 S.W.2d 311, 314 (Tex. App.--Corpus Christi 1998, no pet.).

Enforceability of the Waiver

Castellow asserts that the waiver undermines the purpose and structure of the Workers' Compensation Act and is therefore contrary to public policy. See Tex. Lab. Code Ann. §§ 401.001-418.002 (West 1996 & Supp. 2000). She states that because Swiftex's Plan provides fewer benefits to the injured worker while granting the employer greater immunity from liability than the Act, the waiver provision should be held unenforceable as against public policy. Swiftex, on the other hand, maintains that the waiver is "purely a matter of contract and the rights and obligations are to be measured by the contract."

A court can declare a contract void as against public policy and refuse to enforce it. Williams v. Patton, 821 S.W.2d 141, 147-48 & n.11 (Tex. 1991) (Doggett, J., concurring) (citing cases in which courts found contracts to be void as contrary to public policy). Agreements exempting a party from future liability for negligence are generally recognized as valid except where, because of the relationship of the parties, the exculpatory provision is contrary to public policy or the public interest. Crowell v. Housing Auth., 495 S.W.2d 887, 889 (Tex. 1973) ("It is generally held, for example, that a contract exempting an employer from all liability for negligent injury of his employees in the

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course of their employment is void as against public policy."). The State's public policy is expressed through its statutes. See National County Mut. Fire Ins. Co. v. Johnson, 879 S.W.2d 1, 8 (Tex. 1993). We begin our analysis by noting that we must liberally construe the workers' compensation statute in favor of the injured worker. See Kroger Co. v. Keng, 23 S.W.3d 347, 349 (Tex. 2000).

Prior to 1913, when the first workers' compensation legislation was enacted in Texas, employees injured on the job were often denied recovery. Texas Workers' Comp. Comm'n v. Garcia, 893 S.W.2d 504, 510...

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