Lawrence v. CDB Services

• Decision Date: 20 January 2000
• Citation: 16 S.W.3d 35
• Parties: (Tex.App.-Amarillo 2000) GARY LAWRENCE, ET UX, MARTEE LAWRENCE, APPELLANTS V. CDB SERVICES, INC., APPELLEE NO. 07-98-0356-CV
• Court: Texas Court of Appeals

Page 35

16 S.W.3d 35 (Tex.App.-Amarillo 2000)

GARY LAWRENCE, ET UX, MARTEE LAWRENCE, APPELLANTS

V.

CDB SERVICES, INC., APPELLEE

NO. 07-98-0356-CV

IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO

JANUARY 20, 2000

PANEL A

FROM THE 108TH JUDICIAL DISTRICT COURT OF POTTER COUNTY;, NO. 81,270-E; HONORABLE ABE LOPEZ, JUDGE

Templeton, Smithee, Hayes, Fields Young & Heinrich, Brian Henrich, Robert L.Templeton, Amarillo, for appellants.

Gibson, Ochsner & Adkins, L.L.P., S. Tom Morris, Amarillo, for appellee.

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.

ON MOTION FOR REHEARING

PHIL JOHNSON, Justice.

We withdraw our original opinion of October 11, 1999, and issue the following opinion in lieu thereof.

Gary Lawrence (Lawrence) and wife, Martee Lawrence, sued CDB Services, Inc. (CDB) for damages, alleging that Lawrence was injured due to the negligence of CDB. Lawrence was in the course of his employment for CDB at the time of his injury. CDB moved for summary judgment on the basis that prior to his injury Lawrence elected to participate in CDB's Employee Benefit Plan; the written election waived and released Lawrence's rights to recover from CDB; and that Lawrence was estopped from recovering by his acceptance of benefits.¹ The trial court granted summary judgment to CDB. Lawrence did not urge in the trial court and does not assert on appeal that his election, if valid, did not release and waive his right to sue CDB for negligence. Rather, by four issues, Lawrence contends the trial court erred in granting the summary judgment because: (1) his election relinquishing his common law right to sue CDB was executed prior to his injury and therefore violates Texas public policy and is void; (2) hispreinjury election relinquishing his common law right to sue CDB does not meet express negligence and conspicuousness tests; (3) CDB's Employee Benefit Plan does not provide benefits equivalent to the benefits provided under the Texas Workers' Compensation Act and therefore the election (and the release and waiver contained in it) are in violation of Texas public policy and void; and (4) CDB's estoppel defense is precluded by Texas public policy because it is based on his pre-injury election which is void because it violates public policy. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Lawrence began working for CDB on November 9, 1994. At that time and at all times relevant to Lawrence's claim, CDB did not carry workers' compensation insurance and was thus a "non-subscriber" to the Texas Workers' Compensation Act (the "Act").² CDB, however, provided a benefit plan (the "Plan") that provided medical, disability, dismemberment, and death benefits for employees who chose to participate in it. On November 9, 1994, Lawrence executed a document entitled "Election to Participate in CDB Services, Inc.'s Employee Benefit Plan and Trust" (the "election"). The election provides in part as follows:

By executing this document, I voluntarily elect to participate in the CDB SERVICES, INC.'S EMPLOYEE BENEFIT PLAN AND TRUST (the "Plan"). According to the Plan, I agree that by accepting benefits under the Plan or executing this election form indicating an election to participate in the Plan:

*I agree to the Plan's terms.

*I waive any right I may have to recover from CDB Services, Inc. (the "Employer"), or any of its Affiliated Employers, directors, officers, shareholders, employees, and agents for injuries I sustain or for my death if they arise out of and within the course and scope of my employment with Employer or any Affiliated Employers.

*I acknowledge that, if I am injured or killed in the course and scope of my employment, my only relief against Employer or any of its Affiliated Employers, directors, officers, shareholders, employees, and agents will be to receive the benefits provided by the Plan.

I understand that by electing to participate in the Plan, I will lose any right that I may have had to sue Employer or any of its Affiliated Employers, directors, officers, shareholders, employees, and agents because of any injuries, illness, or death I sustain in my employment with Employer or any of its Affiliated Employers resulting from their negligence or any other conduct actionable under the common law of the State of Texas, the statutes of the State of Texas, or under any otherwise available equitable relief. My only remedy will be to pursue benefits under the Plan. Executing this election involves the waiver and release of valuable legal rights.

The election further sets out that (1) Lawrence did not sign the election under duress; (2) he received a summary plan description; (3) no person made any representation to him on behalf of CDB or its affiliated employers that influenced him to sign the election; (4) Lawrence signed the election of his own free will; (5) he had the option of seeking professional advice before executing the election and had consulted an attorney to the extent he deemed necessary; and (6) he understood the language in the election.³

CDB posted notice in a conspicuous place that it did not have workers' compensation insurance covering its employees in the event of work-related illness or injury. See Labor Code 406.005(c). The notice stated that the employees ". . . may have rights under the common law of Texas." When Lawrence was employed, he signed a separate written "Notice to New Employees" which set out that CDB did not have workers' compensation insurance coverage.

On December 5, 1994, Lawrence was injured on the job when a bulldozer he was operating overturned. In June, 1995, the Lawrences filed suit against CDB. The Lawrences assert that Lawrence was injured due to the negligence of CDB.⁴ Following his injury, Lawrence accepted payment under the Plan for medical services, disability benefits, and dismemberment benefits. The benefits paid during the three and one-half years following his injury exceeded two hundred thousand dollars. Lawrence is eligible to continue receiving benefits until age 65.⁵

In its motion for summary judgment, CDB contended that (1) Lawrence voluntarily released and waived his common law negligence claim by his execution of the election to participate in CDB's Employee Benefit Plan; (2) Lawrence ratified his pre-injury release and waiver of his common law rights when he applied for and accepted benefits from the Plan following his injury; and (3) the doctrine of estoppel by acceptance of benefits bars Lawrence's claim for negligence. The trial court granted summary judgment to CDB without stating the grounds for its ruling.

STANDARD OF REVIEW

The movant for summary judgment has the burden of proving that no genuine issue exists for any material fact and that the movant is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548 (Tex. 1985). In determining whether a genuine issue of material fact exists, all evidence favorable to the non-movant will be assumed as true and every reasonable inference must be indulged in favor of the non-movant with any doubts resolved in his favor. Id. at 548-49. If the basis for the motion is an affirmative defense, the movant must establish all essential elements of the defense as a matter of law. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex. 1979).

PRE-INJURY WAIVER OF NEGLIGENCE

CAUSE OF ACTION

By his first issue, Lawrence asserts that the election relinquishing his right to sue CDB was executed before his injury and therefore is void because it violates Texas public policy. Lawrence primarily relies on Barnhart v. Kansas City, M. & O. Ry. Co. of Texas, 107 Tex. 628, 184 S.W. 176 (1916) and Texas Health Enterprises, Inc. v. Kirkgard, 882 S.W.2d 630 (Tex.App.--Beaumont 1994, writ denied). He also cites language from Crowell v. Housing Authority of the City of Dallas, 495 S.W.2d 887 (Tex. 1973) to support his position.⁶ In supplementation of his brief Lawrence urges that Reyes v. Storage & Processors, Inc., 995 S.W.2d 722 (Tex.App.--San Antonio 1999, pet. denied) supports his position.

In Kirkgard, an employee sued her non-subscriber employer for wrongful termination of employment after she was fired for refusing to sign a waiver of all workers' compensation rights and common law rights to sue the employer for work injuries.⁷ Lawrence claims support in a broad statement by the court that "[a]n employment agreement limiting a non-subscribing employer's liability for job-related injuries is void as against public policy." Kirkgard, 882 S.W.2d at 634. Lawrence's confidence in Kirkgard, however, is misplaced. First, the Kirkgard case involved actions of an employer attempting to coerce employees to execute an agreement waiving rights. Lawrence does not claim that he was coerced into signing his election. Second, the Kirkgard court articulated the issue before it as being whether the employee was wrongfully terminated for refusing to sign the waiver. Lawrence is not claiming that he was wrongfully terminated. Third, Kirkgard did not involve an employment agreement which limited the non-subscribing employer's liability for job-related injuries; therefore, the quoted statement relied on by Lawrence is dictum.

Kirkgard relies, in part, on Barnhart v. Kansas City, M. & O. Ry. Co. of Texas, 184 S.W. at 176, which is also cited to us by Lawrence. In Barnhart, the employee signed an employment application that acknowledged the employee's having been informed that the job for which he was applying ". . . will expose me to great danger, the risk of which I assume for myself . . . ." The application provided that Barnhart agreed ". . . in consideration of my employment . . ." to use due and constant care for his own safety while working for the railway company. Id. at 179. Barnhart was injured on the job and sued his employer. On appeal the Supreme Court of Texas affirmed a judgment for the employee. Without...