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At a Glance:
Lawrence v. CDB Services, Inc.
March 29, 2001
44 S.W.3d 544
Texas Supreme Court
Published Opinion

Lawrence v. CDB Services, Inc.

Supreme Court of Texas.

Gary LAWRENCE, et ux., Martee Lawrence, Petitioners,


CDB SERVICES, INC., Respondent.

Danny Lee Lambert and Teresa Lambert, individually, and as next friends of R.L., and R.L., Petitioners,


Affiliated Foods, Inc., Respondent.

Nos. 00–0142, 00–0201.


Argued Oct. 2, 2000.


Decided March 29, 2001.

Attorneys & Firms

*545 Coleman Young, Robert L. Templeton, Templeton Smithee Hayes Fields Young & Heinrich, Amarillo, for Petitioners.

S. Tom Morris, Gibson Ochsner & Adkins, Amarillo, for Respondent CDB Services, Inc.

G. Luke Ashley, Thompson & Knight, Dallas, for Respondent Affiliated Foods, Inc.



In these consolidated cases, employees of nonsubscribers to workers’ compensation insurance under the Texas Workers’ Compensation Act voluntarily elected to participate in employer benefit plans that provide injured employees specified benefits in lieu of common-law remedies. We must decide whether the Workers’ Compensation Act prohibits voluntary pre-injury agreements of this type and, if not, whether we should hold them void on public policy grounds because they undermine the Legislature’s workers’ compensation scheme. In Lawrence v. CDB Services, Inc., we must also decide whether the waiver signed by the employee meets the express-negligence and fair-notice tests.

We discern no clear legislative intent to prohibit agreements such as those presented here. Although the parties and various amici have raised numerous fact-intensive public policy considerations favoring both sides of the issue, we believe these policy choices are best resolved by the Legislature. Absent any clear indication of legislative intent to prohibit such agreements, we decline to hold them void on public policy grounds. Finally, we hold that the waiver Lawrence executed satisfies the fair-notice and express-negligence tests. Accordingly, we affirm the court of appeals’ judgments upholding summary judgments in favor of the employers. 20 S.W.3d 1.


A. Lawrence v. CDB Services, Inc.

At all times relevant to these proceedings, CDB Services was a nonsubscriber under the Texas Workers’ Compensation Act. Instead of opting into the statutory workers’ compensation scheme, CDB adopted an employee benefit plan that provides medical disability, dismemberment, and death benefits for its eligible employees who choose to participate in the plan. On his first day of employment with CDB, Gary Lawrence signed an election to participate in the plan. That election provided:

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 *546 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.

(Bold-face in original). The election further recites 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. Lawrence does not claim that he was forced to sign the election under duress or that his decision to participate in the plan was anything other than voluntary.

Less than a month after signing the election, Lawrence was injured on the job. He began receiving benefits under the CDB plan, and the record reflects that those benefits have continued. About seven months after he was injured, Lawrence sued CDB alleging that his injury was caused by CDB’s negligence and negligence per se. CDB moved for summary judgment on the basis of waiver, election of remedies, release, and estoppel by acceptance of benefits. The trial court granted the motion, and the court of appeals affirmed, holding that the employee’s waiver did not violate any public policy expressed in the Workers’ Compensation Act. 16 S.W.3d at 44.

B. Lambert v. Affiliated Foods, Inc.

Affiliated Foods, Inc., a nonsubscriber to the workers’ compensation insurance program, employed Danny Lee Lambert in May 1992. Although Affiliated did not have workers’ compensation coverage, it had an employee disability plan that provided certain medical, disability, and death benefits to injured employees who agreed to release and waive any claims against their employer. The waiver recited:




(Bold-face in original). The election also recites that (1) Lambert executed the document voluntarily and without duress, (2) no representation by Affiliated induced him to execute the document, (3) he carefully read and understood the document, (4) he signed the document of his own free will and with knowledge of the consequences, and (5) he had consulted an attorney to the extent he deemed necessary. Like Lawrence, Lambert does not claim that his election was in any way forced upon him or was not voluntary.

Almost nine months after he signed the waiver, Lambert was injured on the job. He received more than $57,000 in benefits before suing Affiliated for negligence and gross negligence. Affiliated moved for summary judgment, arguing that: (1) Lambert had waived and released his claims by signing the election; (2) he had ratified the waiver by accepting benefits under the plan; and (3) he was estopped from suing Affiliated because he had accepted plan benefits. The trial court granted Affiliated’s motion. The court of appeals affirmed, holding that the election was not void as against public policy. 20 S.W.3d at 6–7.

C. Other Cases

These two cases are not the only ones to present the issue before us today. Recently, in Castellow v. Swiftex Mfg. Corp., 33 S.W.3d 890 (Tex.App.—Austin 2000, no pet.), holding that the employee’s waiver of common law rights was unenforceable because the benefits offered under the employer’s plan were inferior to statutory workers’ compensation benefits. We granted these petitions to resolve this conflict among the courts of appeals.


A. No Prohibition under the Act

Petitioners argue that section 406.033 of the Workers’ Compensation Act prohibits their nonsubscribing employers from asserting waiver as a defense. That section provides:

(a) In an action against an employer who does not have workers’ compensation insurance coverage to recover damages for personal injuries or death sustained by an employee in the course and scope of the employment, it is not a defense that:

(1) the employee was guilty of contributory negligence;

(2) the employee assumed the risk of injury or death; or

(3) the injury or death was caused by the negligence of a fellow employee.

(b) This section does not reinstate or otherwise affect the availability of defenses at common law, including the defenses described by Subsection (a).

*548 (c) The employer may defend the action on the ground that the injury was caused:

(1) by an act of the employee intended to bring about the injury; or

(2) while the employee was in a state of intoxication.

(d) In an action described by Subsection (a) against an employer who does not have workers’ compensation insurance coverage, the plaintiff must prove negligence of the employer or of an agent or servant of the employer acting within the general scope of the agent’s or servant’s employment.

TEX. LAB.CODE § 406.033.

Petitioners contend that the Act prohibits their employers from asserting waiver as a defense because section 406.033(a)(2). Petitioners cite a number of cases to support their positions, but none addresses the precise situation presented here.

For example, petitioners cite Id. at 352.

In contrast, the statute reveals no clear legislative intent to preclude an employer from asserting the affirmative defense of waiver. There is, admittedly, some tension between the enumeration of prohibited defenses in section 406.033 highlights this tension. They emphasize subsection (a), which lists defenses that are not available to a nonsubscriber. Because the defense of waiver is not specifically prohibited, they contend that our failure to allow this defense would be adding a prohibited defense to the statute.

We do not believe that the Legislature’s purpose in enacting subsection (c) was to provide an exhaustive list of defenses available to nonsubscribers. Instead, by enacting subsection (c), the Legislature clearly indicated that it did not intend subsection (a), which lists defenses based on an employee’s (or fellow employee’s) fault that would otherwise defeat or diminish recovery, to protect employees injured as a result of their own intoxication or their own intent to bring about the injury.1 But for the exceptions expressly identified in subsection (c), subsection (a)’s prohibition of the contributory negligence defense might arguably prevent an employer from asserting as a defense its employee’s intoxication or intent to cause the injury. Unlike the comparative-fault issue in section 406.033, either as a prohibited or a permitted defense.

To support their contention that subsection (c)’s defenses are exclusive, petitioners rely in part on our statement in 154 Tex. 336, 280 S.W.2d 238 (Tex.1955).

Petitioners next argue that enforcing their waivers would be inconsistent with 596 S.W.2d 204, 205 (Tex.Civ.App.—Houston [1st Dist.] 1980, writ ref’d n.r.e.).

In this case, it is undisputed that neither Lawrence nor Lambert was required to release his common-law claims as a condition of employment. They were free to decline their employers’ plans, retain their employment, and retain the right to sue for negligent injury, with the inherent risks and uncertainty that might involve. Nor do the employers’ plans shift the risk of on-the-job injuries to the employees; they provide immediate and certain benefits the employers are not otherwise required to provide in exchange for a voluntary relinquishment of the right to sue. This distinction is significant. As one federal court, interpreting Texas law, has stated:

The distinction between an employment contract that requires a prospective employee, as a condition to receipt or retention of employment, to agree to limit the employer’s liability, on one hand, and a voluntary occupational insurance plan, in which the employee has the option to enroll in consideration for agreeing that such plan constitutes the exclusive remedy for job related injuries, on the other, is decisive.


In sum, we find the Act itself does not expressly prohibit the elections signed by Lawrence and Lambert. Thus, we must enforce them as we would any other contract unless they should be held void on public policy grounds because they contravene the workers’ compensation scheme.

*551 B. Public Policy Concerns

Petitioners argue that enforcing their elections would contravene the workers’ compensation scheme because their employers would then enjoy the benefits the Act bestows upon subscribers without having to provide their employees equivalent statutory benefits. The courts of appeals in Castellow, 33 S.W.3d at 901. Those courts engaged in a substantive comparison of the respective benefits and concluded that the employer-provided benefits were inferior to those provided under the Act and were therefore void.

We believe that courts engaging in such a qualitative, plan-by-plan evaluation is ill-advised. First, such an analysis is premised on the questionable presumption that the various benefits can in fact be compared. In 20 S.W.3d at 7.

In addition, deciding whether one set of benefits is substantially equivalent to another presents a number of practical concerns. For instance, Lambert’s employer claims its package of benefits in fact affords broader coverage than workers’ compensation insurance because, among other things, it covers nonoccupational injuries. Lambert, on the other hand, contends that his employer’s plan does not provide benefits equal to those offered under the Act because, among other things, it does not provide for lifetime medical benefits. Assuming that different benefits such as these are even capable of comparison, should expert economic testimony regarding the relative equivalency of benefits be presented in each case? And who should decide—judge or jury? Hinging the validity of employer-provided plans upon a comparative-equivalency analysis fosters unpredictability of outcome and undermines judicial economy. But more importantly, weighing the substantive equivalency of employer-provided benefits involves competing policy considerations that courts are ill-equipped to address. Because the Act itself provides no clear guidance on this issue, we believe the balance must be drawn by the Legislature.

Petitioners argue that we should declare these waivers void because they undermine the Act’s general scheme; if employee waivers such as these are not prohibited, they argue, employers will have no incentive to subscribe to workers’ compensation insurance and the system established under the Act will be crippled. It is *552 true that the Act discourages employers from choosing nonsubscriber status by abolishing their common-law defenses of contributory negligence, assumption of the risk, and fellow servant. See Paradissis v. Royal Indem. Co., 507 S.W.2d 526, 529 (Tex.1974). Allowing employees of nonsubscribers additional choices does not in itself violate the legislative scheme.

In addition to the policy concerns raised by Petitioners, several amici have weighed in both supporting and opposing these waivers on numerous, competing public policy grounds.3 Those opposing the waivers argue that the waivers violate public policy by allowing employers to escape liability by offering benefits that are inherently inferior because benefits may be provided by entities that are unregulated and that may become insolvent. At the same time, they argue, these plans are not subject to the protective mechanisms that the Act provides to ensure that claims disputes are fairly resolved, do not protect workers from being terminated for filing claims, and often do not allow injured employees to freely choose their treating physicians. They also contend that the waivers are not generally truly voluntary because workers feel compelled to sign them.

Amici supporting waivers, on the other hand, raise a number of countervailing policy concerns. They contend that allowing waivers will result in increased benefits for injured employees, and that insurance from a number of financially strong companies is available to provide those superior benefits. They cite statistics suggesting that few subscribers will be influenced to leave the workers’ compensation system if the waivers are upheld, and contend that benefits currently offered under some plans will be reduced if the waivers are struck down. They claim that waivers such as these have been used by employers for years, and that invalidating them will upset the status quo. And, they argue, there is no evidence that waivers have been or will be used abusively. To the contrary, employees who decide to sign waivers are actually exercising an informed, intentional choice. These amici claim that traditional contract defenses, as well as the Employee Retirement Income Security Act of 1974, protect employees from employers using waivers abusively.

*553 To these policy concerns, we add another: We do not know how many injured employees in Texas are currently receiving benefits provided by their employers under similar plans. Several amici suggest that there are a significant number. Were we to invalidate such plans on public policy grounds, these employees might lose their benefits yet no longer be able to assert common-law claims because of limitations problems.

We recognize that the Legislature designed the workers’ compensation scheme to encourage employer participation. See, e.g., Garcia, 893 S.W.2d at 511. We also recognize that enforcing waivers like those presented today might discourage employer participation in the workers’ compensation system and present the problems articulated by some of the amici. But, while the Legislature has created statutory incentives to encourage participation, participation remains voluntary. As a judicial body, we are ill-equipped to evaluate the likely real-world consequences of invalidating the agreements before us.

Undoubtedly, the issue we face raises critical and complex public policy issues. And the administration of the workers’ compensation system is heavily imbued with public policy concerns. See Wood Motor Co. v. Nebel, 150 Tex. 86, 238 S.W.2d 181, 185 (1951). Courts must exercise judicial restraint in deciding whether to hold arm’s-length contracts void on public policy grounds:

Public policy, some courts have said, is a term of vague and uncertain meaning, which it pertains to the law-making power to define, and courts are apt to encroach upon the domain of that branch of the government if they characterize a transaction as invalid because it is contrary to public policy, unless the transaction contravenes some positive statute or some well-established rule of law.

Sherrill v. Union Lumber Co., 207 S.W. 149, 153–54 (Tex.Civ.App.—Beaumont 1918, no writ) (quoting 6 RULING CASE LAW § 119, at 710). Given the lack of any clear legislative intent to prohibit agreements like the ones before us, and absent any claim by the petitioners of fraud, duress, accident, mistake, or failure or inadequacy of consideration, we decline to declare them void on public policy grounds. We believe the factually-intensive, competing public policy concerns raised by the parties and by amici in these cases are not clearly resolved by the statute and are best resolved by the Legislature, not the judiciary.


Express Negligence/Fair Notice

Lawrence additionally argues that his release of claims against CDB is unenforceable because it does not meet the express-negligence or fair-notice tests. Lawrence’s pre-injury release of claims against CDB for CDB’s own negligence can be enforced only if it meets two fair notice requirements. First, the parties’ intent that CDB was to be released from liability for CDB’s own future negligence must be expressed in unambiguous terms within the four corners of the release. See Ethyl Corp. v. Daniel Constr. Co., 725 S.W.2d 705, 707–08 (Tex.1987).



The Texas Workers’ Compensation Act neither clearly prohibits nor clearly allows voluntary pre-injury employee elections to participate in nonsubscribing employers’ benefit plans in lieu of exercising common-law remedies. And whether or not such elections should be held void on the theory that they contravene the general statutory scheme and thus violate public policy is a decision that we believe, absent clear legislative guidance and in light of numerous competing public policy concerns, is better left to the Legislature. Accordingly, we decline to invalidate the petitioners’ elections on public policy grounds and affirm the court of appeals’ judgments.

BAKER, J., filed a dissenting opinion, joined by PHILLIPS, C.J.

Justice BAKER, joined by Chief Justice PHILLIPS, dissenting.

For eighty-eight years workers’ compensation legislation has provided a closely-monitored compensation scheme to encourage employers’ participation in the workers’ compensation system and to ensure all injured employees adequate redress. Today, by declining to invalidate the waivers at issue on public policy grounds, the Court ignores the Texas Workers’ Compensation Act’s statutory scheme and its established underlying public policies. Instead, the Court elects to defer to the Legislature to resolve what the Court improperly calls “competing public policy concerns.” 44 S.W.3d at 554. Because the Court’s choice is contrary to the public-policy decision the Legislature has already made and embodied in the Act, I dissent.




In 1913, the Texas Legislature enacted workers’ compensation legislation “to meet the needs of an increasingly industrialized society.” Middleton v. Texas Power & Light Co., 108 Tex. 96, 185 S.W. 556, 558 (1916).

In 1989, the Legislature passed the Texas Workers’ Compensation Act to resolve problems with existing legislation. TEX. LAB.CODE § 406.034(d).

The Act also gives employers the option not to subscribe to workers’ compensation insurance. See Kroger Co., 23 S.W.3d at 349–350.


On several occasions, we have held otherwise freely-entered contracts void because they were contrary to public policy. See, e.g., Sabine Pilot Serv., Inc. v. Hauck, 687 S.W.2d 733, 735 (Tex.1985) (holding employment termination for refusal to perform illegal act contrary to public policy expressed in state and federal criminal laws). Thus, to determine whether a contract violates public policy, we consider the policies underlying any applicable statutes.

Whether a contract violates public policy is a question of law, which we review de novo. Ex parte Payne, 598 S.W.2d 312, 317 (Tex.Civ.App.—Texarkana 1980, no writ) (“Since the contract was void, neither party was bound thereby, and thus estoppel by contract could not arise in this case.”).



The Act provides a comprehensive compensation system with two methods by which employers can handle workplace injuries: (1) an employer may elect to provide workers’ compensation insurance coverage, thereby barring an injured employee’s common-law claims unless the employee timely elected to waive coverage; or (2) an employer may choose not to carry workers’ compensation insurance, remain subject to an injured employees’ common-law claims, and waive traditional common-law defenses. See Kroger Co., 23 S.W.3d at 350–51.

In Holmans v. Transource Polymers, Inc., 914 S.W.2d 189, 193 (Tex.App.—Fort Worth 1995, writ denied) ( “[T]he Workers’ Compensation Act is an example of the legislature’s reasonable substitute for common-law rights.”).

Thus, a key concept in upholding the Act has been its providing injured employees of nonsubscribing and subscribing employers definite means by which they may seek adequate redress. Today, however, the Court allows employers an end-run around the Act’s carefully-crafted system and improperly creates a third compensation method. This method allows employers to privately negotiate injured employees’ compensation without considering whether the employer’s benefits plan affords fewer benefits than under the Act or whether the employee relinquishes more remedies than the Act allows.

In concluding that the waivers in these cases do not violate public policy, the Court engages in an improper analysis. Rather than looking to the Act to ascertain Texas’ public policy, National County Mut. Fire Ins. Co., 879 S.W.2d at 5, the Court weighs what it labels as the parties’ and amici’s “competing public policy concerns.” 44 S.W.3d at 554. But in reality, the Court is merely reciting the waivers’ pros and cons and data compiled from a statewide employer survey-not the public policies the Act expresses.

This Court has previously identified the public policies underlying the Act. We have recognized, for example, that the Act manifests a strong legislative policy encouraging employers to subscribe to workers’ compensation insurance. Kroger Co., 23 S.W.3d at 349.

The Act’s underlying public policies are also evident in cases where contracts have been held void as against public policy because they reduced injured employees’ common-law and statutory rights. For example, this Court has held that a contract in which an employee expressly assumes the risk of workplace injury is “so abhorrent that it is held to be in violation of public policy and void.” Clevenger v. Burgess, 31 S.W.2d 675, 678 (Tex.Civ.App.—Beaumont 1930, writ ref’d) (rejecting nonsubscribing employer’s argument that the Act unconstitutionally impairs freedom of contract if it invalidates an employee’s agreement to assume the risk of injury).

It is already established, therefore, that the Act’s underlying policies are to encourage workers’ compensation insurance subscription while assuring nonsubscribing employers’ injured employees a means to seek suitable compensation. Yet, the Court today refuses to hold these waivers unenforceable despite the Act’s comprehensive compensation scheme and established public policies. Instead, the Court gives too much consideration to the parties’ and amici’s “factually-intensive” concerns, says the Legislature can better resolve these issues, and declines to hold the waivers invalid. 44 S.W.3d at 553. Surprisingly, the Court acknowledges that enforcing the waivers will discourage employer subscription to workers’ compensation insurance—a fundamental policy expressed in the Act. See Kroger Co., 23 S.W.3d at 350. But, rather than upholding the Act’s underlying policies, the Court declines to take the appropriate action and defers to the Legislature in an area about which the Legislature and this Court have already clearly spoken.

The Court adds as an additional concern the possibility that invalidating the waivers may cause some employees to lose benefits while also losing their common-law claims because limitations has run. In doing so, the Court ignores the rule that “[i]n considering whether a contract is contrary to public policy, the test is whether the tendency of the agreement is injurious to the public good, not whether its application in a particular case results in actual injury.” Amarillo Oil Co. v. Ranch Creek Oil & Gas Co., 271 S.W. 145, 151 (Tex.Civ.App.—Amarillo 1925, writ dism’d by agr.)).

In James, 498 S.W.2d at 162 (recognizing that invalidating a waiver may work a hardship on individual employee, but concluding it is in the working majority’s best interest). Because the Act dictates that “the great army of employees” is best served by encouraging subscription while also assuring nonsubscribing employers’ employees a means to seek adequate compensation, the Court should have no choice but to hold the waivers void and unenforceable.

The Court also finds it pertinent that employer and employee participation in the workers’ compensation system is voluntary and says that allowing nonsubscribing employers’ employees additional choices does not violate the legislative scheme. 44 S.W.3d at 551–52. This simply ignores that even when employers and employees elect not to have workers’ compensation insurance coverage, the Act “delineate[s] explicitly the structure” of an injured employee’s personal-injury action. Kroger Co., 23 S.W.3d at 351. Enforcing these waivers is thus contrary to the Act’s intent to protect both nonsubscribing and subscribing employers’ employees and to monitor all injured employees’ remedies.

Finally, because I would hold that the waivers violate public policy, I also consider the employers’ argument that by accepting benefits under the plans, Lawrence and Lambert are estopped from claiming the waivers are unenforceable. While accepting benefits is a form of quasi-estoppel, Richmond Printing, 996 S.W.2d at 224. Accordingly, accepting benefits does not make the otherwise void waivers enforceable.



An employee’s agreement to waive all claims against a nonsubscribing employer violates the Act’s long-recognized public policies. Today, the Court ignores its obligation to uphold those public policies and punts a well-settled issue to the Legislature. I respectfully dissent.



Neither is an employee of a subscriber entitled to compensation if the employee was intoxicated or wilfully caused his or her own injury. See TEX. LAB.CODE § 406.032.


All parties agreed that evidence of the purported agreement was inadmissible under the statutory predecessor to section 406.035 of the current Act, which provides that “an agreement by an employee to waive the employee’s right to compensation is void.” Several courts have since held that section 406.035 of the 1989 Act does not apply to nonsubscribers’ employees, see, e.g., Martinez v. IBP, Inc., 961 S.W.2d 678, 682 (Tex.App.-Amarillo 1998, pet. denied), and neither Lawrence nor Lambert argue that section 406.035 renders their waivers unenforceable.


Amici opposing waivers include the Texas Workers’ Compensation Insurance Fund, the Texas Medical Association, the Insurance Council of Texas, the Texas AFL CIO, and Senator Robert Duncan. Amici supporting waivers include the Texas Association of Business and Chambers of Commerce, HCA the Healthcare Company, St. Joseph Regional Healthcare, Texas Risk Retention Association, the Texas Association of Residential Care Communities, and H.E. Butt Grocery Co.

End of Document