Wolfe v. C.S.P.H. Inc.

• Decision Date: 08 August 2000
• Docket Number: No. 05-98-00214-CV,05-98-00214-CV
• Parties: (Tex.App.-Dallas 2000) KEVIN W. WOLFE, Appellant V. C.S.P.H., INC. D/B/A DOMINO'S PIZZA, Appellee Opinion Filed
• Court: Texas Court of Appeals

Page 641

24 S.W.3d 641 (Tex.App.-Dallas 2000)

KEVIN W. WOLFE, Appellant

V.

C.S.P.H., INC. D/B/A DOMINO'S PIZZA, Appellee

No. 05-98-00214-CV

In The Court of Appeals Fifth District of Texas at Dallas

Opinion Filed August 8, 2000.

On Appeal from the 95th Judicial District Court Dallas County, Texas Trial Court Cause No. 97-01528-D

Before Justices Lagarde, Moseley, and FitzGerald

OPINION

Opinion By Justice Kerry P. FitzGerald

On the Court's own motion, we withdraw our opinion of April 19, 2000. The following is now the opinion of the Court.

After suffering an on-the-job injury, Kevin W. Wolfe sued his employer, C.S.P.H. d/b/a Domino's Pizza (CSPH), for negligence. CSPH moved for summary judgment on the ground that Wolfe had contractually waived his right to sue CSPH for work-related injuries. The trial court granted summary judgment for CSPH. In three points of error, Wolfe contends the trial court erred in granting summary judgment because (1) section 406.035 of the Texas Labor Code and public policy prohibit waiver of an employee's right to compensation; (2) the doctrine of ratification does not apply; (3) certain summary judgment evidence was inadmissible; and (4) the trial court used an improper standard of review. Because we conclude Wolfe voluntarily waived his right to sue for additional compensation, no public policy exception applies, and his other points are without merit, we affirm the trial court's judgment.

Factual Background

CSPH employed Wolfe as a truck driver to deliver supplies to various Domino's outlet stores. According to Wolfe, during one of these deliveries, the products in his truck shifted and fell on his neck and shoulders as he restacked the supplies. CSPH was a nonsubscriber to the Texas Workers' Compensation Act (the Act) but had an Injury Benefit Plan for employees. Under this two-tiered plan, employees were automatically entitled to a first tier of benefits. CSPH employees could voluntarily participate in a second level, the Enhanced Benefits Program, in which employees received a greater package of benefits than under the standard Injury Benefit Plan in exchange for a waiver of the right to sue CSPH for work-related injuries. To receive the enhanced benefits, an employee who opted into the Enhanced Benefits Program was not required to prove the injury was caused by any fault of CSPH.

When he began working for CSPH, Wolfe elected to participate in the Enhanced Benefits Program and, in doing so, executed the following waiver of his right to sue CSPH:

In consideration of this election to become eligible to receive additional medical, income, dismemberment, and death benefits under the [Injury Benefit] Plan, I hereby waive my rights under the Act, any other statute, or common law to bring legal action and recover judgment against [CSPH] and/or its affiliates, directors, officers, agents, and employees, and fully release such parties from liability, for any damages arising from any personal injury incurred (i) in the course of my employment by [CSPH], and (ii) during my participation in the Plan or by reason of death resulting from such injury. . . . I agree that amounts payable under the Plan, which are paid or funded solely by [CSPH], shall be the exclusive remedy for me and my legal beneficiaries arising from any such personal injury or death.

Just above Wolfe's signature, the waiver further provided, "I acknowledge that I knowingly and voluntarily enter into this Waiver and that I fully understand the meaning and effect of my action in signing it."

After Wolfe was injured, CSPH paid him enhanced benefits for over eighteen months. Wolfe then brought this suit against CSPH for negligence.¹ CSPH moved for summary judgment, asserting it was entitled to judgment as a matter of law because Wolfe had contractually waived his right to sue CSPH for work-related injuries. The trial court granted summary judgment for CSPH. This appeal followed.

Standard of Review

The standards for reviewing a traditional summary judgment are well established: (1)the movant for summary judgment has the burden of showing there is no genuine issue of material fact and he is entitled to judgment as a matter of law; (2)in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true; and (3)every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in his favor. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985); see also Tex. R. Civ. P. 166a(c). A defendant who moves for summary judgment must show the plaintiff has no cause of action. A defendant may meet this burden by either: (1)disproving at least one essential element of each theory of recovery; or (2) conclusively proving all elements of an affirmative defense. See Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex. 1993); Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex. 1990).

Discussion

In his first point of error, Wolfe contends the trial court erred in granting summary judgment because section 406.035 of the Texas Labor Code and a general public policy embodied in the Act apply to both subscribers and nonsubscribers of workers' compensation insurance and prevent Wolfe from waiving his right to sue CSPH for work-related injuries.

1. Section 406.035

The Texas Workers' Compensation Act provides that "an agreement by an employee to waive the employee's right to compensation is void." See Tex. Lab. Code Ann. § 406.035 (Vernon 1996). The legislature enacted specific definitions for several of the words relevant to this statute. The Act defines "agreement" as "the resolution by the parties to a dispute under [the Act] of one or more issues regarding an injury, death, coverage, compensability, or compensation." See Tex. Lab. Code Ann. § 401.011(3) (Vernon Supp. 2000). "Compensation" is defined as "payment of a benefit." See id. § 401.011(11). Further, "benefit" means "a medical benefit, an income benefit, a death benefit, or a burial benefit based on a compensable injury." See id. § 401.011(5). A "compensable injury" is one that "arises out of and in the course and scope of employment for which compensation is payable under [the Act]." See id. § 401.011(10).

At least two Texas courts of appeals have addressed the applicability of section 406.035 to nonsubscribers of the Act. See Reyes v. Storage & Processors, Inc., 995 S.W.2d 722 (Tex. App.-San Antonio 1999, pet. denied); Martinez v. IBP, Inc., 961 S.W.2d 678 (Tex. App.-Amarillo 1998, pet. denied). Both courts held the legislature did not intend this section to apply to the employees of nonsubscribers. See Reyes, 995 S.W.2d at 726 (citing Martinez, 961 S.W.2d at 682); see also Brito v. Intex Aviation Servs., Inc., 879 F. Supp. 650, 653-54 (N.D. Tex. 1995). We agree. The definitions of "compensation," "benefit," and "compensable injury" establish that this section applies to a payment of benefits based on an injury compensable under the Act. Because nonsubscribers' employees are not entitled to benefits under the Act, section 406.035 does not apply to waiver agreements by employees of nonsubscribers. In the present case, CSPH was a nonsubscriber to the Act, and therefore Wolfe had no right to receive compensation under the Act. Wolfe's execution of the waiver in this case did not affect such a right to compensation under the Act that he was not otherwise entitled to as the employee of a nonsubscriber. As such, section 406.035 is not applicable in this case and provides no support for Wolfe's contention that the waiver is void.

The Act provides further evidence of the legislature's intent for section 406.035 to apply only to subscribers. Section 406.033 states that in an action by an employee against a nonsubscriber employer for work-related injuries, the employer may not assert the following common-law defenses: (1) contributory negligence; (2) assumption of the risk; and (3) negligence of a fellow employee. Tex. Lab. Code Ann. § 406.033(a) (Vernon 1996). The defense of waiver is an affirmative defense but is not included as a prohibited defense for nonsubscribers. See id.; LSR Joint Venture No. 2 v. Callewart, 837 S.W.2d 693, 699 (Tex. App.-Dallas 1992, writ denied ). Because the legislature did not include waiver as a prohibited defense for nonsubscribers, CSPH is entitled to assert this defense in response to Wolfe's cause of action. Further, we decline to judicially create a fourth prohibited defense for nonsubscribers, particularly in light of the fact that the legislature has specifically addressed a nonsubscriber'sright to rely on common-law defenses. We overrule Wolfe's first point of error to the extent it addresses the application of section 406.035 to nonsubscribers.

2. Public Policy

Wolfe also contends there is a general public policy incorporated in the Act that prohibits employees from executing these types of waivers. This issue was recently addressed in Lawrence v. CDB Services, Inc., 16 S.W.3d 35 (Tex. App.-Amarillo 2000, pet. filed). In Lawrence the employer was a nonsubscriber to workers' compensation insurance but provided benefits through an employee benefit plan for employees who elected to participate in the plan. Id. at 37. Lawrence signed an election to participate in the employee benefit plan and, as a requirement for participation, he waived his right to recover from the employer for work-related injuries. Id. Lawrence was injured in a work-related accident and received benefits under the plan for over three years before suing his employer for negligence. Id. at 38. Lawrence argued the election to participate in the employee benefits plan that included the waiver of his right to sue his employer was void because it violated public policy. The court disagreed and found the legislature "has neither expressly nor impliedly established a public policy with which Lawrence's pre-injury execution of his election...