Ross v. Union Carbide Corp.

• Decision Date: 25 August 2009
• Docket Number: No. 14-07-00860-CV.,14-07-00860-CV.
• Citation: 296 S.W.3d 206
• Parties: Marjorie ROSS, Joan Seelback, Timothy R. Ross, James R. Ross, Billy R. Ross, and Robert R. Ross, Appellants v. UNION CARBIDE CORPORATION, Appellee.
• Court: Texas Court of Appeals

296 S.W.3d 206

Marjorie ROSS, Joan Seelback, Timothy R. Ross, James R. Ross, Billy R. Ross, and Robert R. Ross, Appellants v. UNION CARBIDE CORPORATION, Appellee.

No. 14-07-00860-CV.

Court of Appeals of Texas, Houston (14th Dist.).

August 25, 2009.

[296 S.W.3d 208]

Marcus D. Pinney, Houston, TX, for appellants.

Stephen G. Tipps, James H. Powers, Houston, TX, for appellees.

En banc court consists of Chief Justice HEDGES; Justices YATES, ANDERSON, FROST, SEYMORE, GUZMAN, BROWN, and SULLIVAN; and Senior Justice PRICE.^*

MAJORITY OPINION ON EN BANC REVIEW

EVA M. GUZMAN, Justice.

In this asbestos case, we must determine whether a broad settlement and release agreement executed by an injured worker and his wife acts as a bar, after the worker's death, to his survivors' claims against his employer for exemplary and loss-of-consortium damages. In particular the survivors argue that their exemplary-damages claim is not derivative of any cause of action owned by the worker or that accrued during his lifetime, but is instead an independent cause of action under the Workers' Compensation Act and article XVI, section 26 of the Texas Constitution. They therefore contend that the trial court erred in granting summary judgment to the employer based on the worker's release of his claims. We disagree with the survivor's premise that their exemplary-damages claim is a nonderivative cause of action, overruling our prior decision in Perez v. Todd Shipyards Corp., 999 S.W.2d 31 (Tex.App.-Houston [14th Dist.] 1999), pet. denied, 35 S.W.3d 598 (2000). We also disagree with the survivors' arguments that the release (1) is void in that it impermissibly settles workers' compensation claims, or alternatively, applies only to products-liability claims, and not to claims of premises or employer liability; and (2) is unenforceable because it is the result of unilateral mistake, is unconscionable, or otherwise violates public policy. Because the survivors' exemplary-damages and loss-of-consortium claims are encompassed within the release, we affirm the trial court's judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

After working as a pipefitter for more than thirty-seven years, Homer Ross developed an asbestos-related disease from his workplace exposure. In 1989, Ross and his wife Marjorie sued twenty-two asbestos manufacturers, alleging that Homer "is suffering from an asbestos-related disease and his future outlook is very dim. He has sought the services of physicians in an effort to cure or arrest the condition from which he is suffering, but to no avail." They asserted Homer's claim for personal injury and Marjorie's claim for loss of consortium under theories of strict liability, negligence, gross negligence, intentional conduct, and breach of warranty. In 1993, both Homer and Marjorie reached a settlement with the Center for Claims Resolution ("CCR"), a nonprofit corporation formed by twenty-one companies to act as the companies' agent in asbestos litigation. Homer's former employer Union Carbide Corporation ("Union Carbide"), which was then known as Union Carbide Chemicals & Plastics Co., Inc., was a member of the CCR. Although Union Carbide was not a defendant in the suit, it was a party to the settlement and release (the "Release").

The Release provides in pertinent part as follows:

WHEREAS, Homer G. Ross and Marjorie Ross have agreed to settle and compromise their claim and cause of action asserted and which could be asserted in said suit, including, but not limited to, each and every cause of action for loss of consortium, personal injury, medical expenses, ... and any future claim for alleged wrongful death under the statutes and laws of the State of Texas;

WHEREAS, ... the Releasees and the Releasors desire to enter into a final compromise and settlement of any and all claims which they have or may hereafter have against the Releasees, for injuries to Homer G. Ross, and any claim for injuries to Marjorie Ross, including loss of consortium, mental anguish, or the future death of Homer G. Ross, arising directly or indirectly from such injuries, disease or death.

NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS:

THAT WE, Homer G. Ross and Marjorie Ross, ... joined by our attorney, hereby fully and finally RELEASE, ACQUIT and FOREVER DISCHARGE the Releasees from any and all claims, demands, causes of action of whatsoever nature or character which we may now have or hereafter have against the Releasees, including ... damages, punitive and exemplary damages, loss of consortium, damages under Wrongful Death and Survival Statutes, Worker's Compensation liens ... in any manner arising out of, or in any way connected with, directly or indirectly, the exposure or occurrences of injuries, disease, illness or death of Homer G. Ross, above described, as well as any consequence thereof, as well as any cause of action sustained or to be sustained by Marjorie Ross.

This Release shall be construed as broadly as possible with regard to the alleged injuries of Homer G. Ross and shall include, but not be limited to, asbestosis, mesothelioma, cancer and any disease of the body that could now or in the future be alleged to be related to the exposure of Homer G. Ross to asbestos-containing products of any of the Releasees....

We intend this Release to be as broad and comprehensive as possible so that the Releasees shall never be liable, directly or indirectly, to us or our beneficiaries, heirs, successors or assigns, or any person ... claiming by, through, under or on behalf of us or them, for any claims, demands, actions or causes of action of whatsoever nature or character arising out of any illness[,] disease or death of Homer G. Ross or damages to Marjorie Ross in any way connected with the use of or exposure to various materials and products manufactured, sold or distributed by the Releasees....

The Releasors expressly contract that no claim or cause of action of any type is reserved against any Releasees. If any other claims exist against the Releasees, whether directly or indirectly, whether released herein or not, whether foreseeable or unforeseeable, the Releasors hereby assign those claims in full to the Releasees....

In consideration for the payment of the aforesaid sum, Homer G. Ross and Marjorie Ross, for themselves, their beneficiaries and heirs and on behalf of their successors and assigns[,] agree to indemnify and hold harmless the Releasees from any further payment of damages, debts, liens, charges and/or expenses of any character incurred by or on behalf of the Releasees as a result of any further claim by Homer G. Ross and spouse, Marjorie Ross, or their representatives, heirs, or assigns. Homer G. Ross and Marjorie Ross[] further agree to indemnify and hold harmless the Releasees from any and all liability for the payment of damages by reason of any claims asserted by any person ... as a result of any claim ... made by or to Homer G. Ross and spouse, Marjorie Ross, or their representatives, heirs, or assigns, arising out of any illness of Homer G. Ross and damages claimed or asserted by Marjorie Ross, and the potential claim for the wrongful death of Homer G. Ross in any way connected with the use of or exposure to various materials and products manufactured, sold or distributed by the Releasees....

It is the intent and purpose of this agreement that at no time will the Releasees be called upon to pay any further sum or incur any further expense by reason of any fact, matter or claim, directly or indirectly, ... arising out of or predicated upon any claim, demand, judgment or payment made by or to Homer G. Ross or Marjorie Ross, their beneficiaries, successors, heirs or assigns, arising out of the injuries to, disease of, or death of Homer G. Ross....

[T]his agreement is and may be asserted by the Releasees as an absolute and final bar to any claim or proceeding now pending or hereafter brought....

By our signatures below we represent that we understand this Full and Final Release and Indemnity Agreement constitutes a final and complete release of all claims regardless of their kind or character, including any possible claim which might be discovered in the future.

Homer died in 2001, and two years later, his wife and children brought an exemplary-damages claim against Union Carbide,¹ alleging that Homer's asbestos-related death was caused by Union Carbide's wilful act, omission, or gross neglect in exposing Homer to asbestos in the workplace. They specified they brought this claim pursuant to article XVI, section 26 of the Texas Constitution and the Workers' Compensation Act, Texas Labor Code section 408.001(b). Marjorie also raised a claim for loss of consortium. Relying on the affirmative defense of release, Union Carbide successfully moved for traditional summary judgment on all claims, and this appeal timely ensued.

II. ISSUES PRESENTED

In their first three issues, appellants contend the trial court erred in granting summary judgment because Homer could not have validly assigned, settled, or released their claims arising from his death. In their fourth issue, appellants argue that a fact issue regarding unilateral mistake precluded summary judgment.

III. STANDARD OF REVIEW

We review summary judgments de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). In a traditional summary-judgment motion, the movant has the burden of showing that there is no genuine issue of material fact and it is entitled to judgment as a matter of law. TEX.R. CIV. P. 166a(c); Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997). A defendant must conclusively negate at least one essential element of each of the plaintiff's causes of action or conclusively establish each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997). Evidence is conclusive only if reasonable people could not differ in their conclusions. City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex.2005). O...