IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-40557

DANNY CUPIT and BETTY CUPIT,

Plaintiffs-Appellants,

versus

CHARLES WALTS, doing

business as MERCHANTS, INC.;

MERCHANTS FAST MOTOR LINES, INC.;

and GYPSUM TRANSPORT, INC.,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Texas

July 22, 1996

Before SMITH, DUHÉ and DeMOSS, Circuit Judges.

PER CURIAM:

Plaintiffs-Appellants Danny and Betty Cupit, husband and wife,

appeal from the district court's grant of summary judgment in favor

of Defendants-Appellees Walts, Merchants and Gypsum (collectively,

Defendants). We find the Cupits' appeal unmeritorious, but write

nonetheless to remove any doubt about this Circuit's position on

f ederal preemption under § 301 of the Labor Management Relati ons29 U.S.C. § 185.

2

Act (LMRA), 1 relative to those aspects of the Workers Compensation

Law of Texas discussed below.

I.

FACTS AND PROCEEDINGS

The basic facts of this case are not disputed. Cupit, a truck

driver employed by Gypsum, was represented by the Union of

Transportation Employees (UTE) which had entered into a Collective

Bargaining Agreement (CBA) with Gypsum. On February 1, 1992,

Gypsum became a "nonsubsc riber to the Texas Workers Compensation

Act." In September 1992, Cupit suffered an injury while in the

course and scope of his employment. After reporting his injury,

Cupit received and accepted weekly checks from September 21, 1992,

until September 18, 1994. Cupit never filed a grievance under the

CBA concerning his injury; however, on September 12, 1994, the

Cupits filed suit against the Defendants in Texas state court. In

that suit Cupit alleg ed negligence and gross negligence, and his

wife alleged a loss of consortium.

The Defendants removed the case to federal district c ourt

based on federa l preemption of § 301 of the LMRA. In March of

1995, the Defendants filed a motion for summary judgment and their

brief in support thereof. The Cupits responded to the Defendants'

motion; Gypsum replied; and the district court requested the Cupits

to file a supplemental brief.3

Some two months after Defendants' summary judgment motion was

filed, the district court issued a memor andum opinion and order

granting summary judgment. The district court expressed the

following conclusion:

Danny Cupit's negligence and gross negligence

claims against Gypsum were waived by UTE when

it entered into a collective bargaining

agreement with Gypsum that provided the

exclusive remedy for compensating employees

for on-the-job injuries and resolving disputes

regarding the compensation provided. Because

of Mr. Cupit's failure to institute a grievance under the provisions of the CBA, he

is now barred from asserting negligence and

gross negligence claims against Gypsum. Since

Mr. Cupit's claims of negligence and gross negligence against Gypsum are barred, Mrs.

Cupit's derivative claim for loss of

consortium is also barred.

The district court entered judgment that the Cupits take nothing

from Gypsum. The court also declined to exercise supplemental

jurisdiction over the claims filed against Walts and Merchants Fast

Motor Lines. The Cupits timely filed a notice of appeal.

II.

ANALYSIS

We review a district court's grant of summary judgment de

novo. T opalian v. Ehrman

, 954 F.2d 1 125, 1131 (5th Cir.), c ert.

denied

, 113 S. Ct. 82 (1992). Summary judgment under Fed. R. Civ.

P. 56(c) is proper "if the pleadings, depositions , answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact that the moving party is entitled to a judgment as a

matter of law ." Celotex Corp. v. Catrett , 477 U.S. 317, 322Tex. Labor Code Ann. § 406.002 (West 1995).

Tex. Labor Code Ann. § 406.033 (West 1995).

4 (1986). In this case, the Cupits are not arguing that the summary

judgment was inappropriate due to the existence of a factual

d ispute; rather, they take issue with the district court's legal

conclusions.

Pursuant to § 406.002 of the Texas Workers' Compensation Act

(TWCA), 2 Gyp sum elected not to obtain workers' compensation

insurance. Under § 406.033 of the TWCA, an employer who does not

have workers' compensation insurance cannot assert the defenses of

contributory negligence, assumption of the risk, or negligence of

a fellow employee in an action brought by an employee to recover

damages for personal injuries or death. 3 In the Gypsum/UTE CBA,

Article 32 § 4 provides,

In lieu of subscribing to the Texas Workers'

Compensation Act, the Company agrees to

provide directly to its employees the

compensation and benefits otherwise available

under the provisions of the Texas Workers

Compensation Act. In any proceeding

concerning an injury or illness sustained in

the course of employment (e.g., grievance

procedure or arbitration

-- not court action),

the Company further agrees to waive its common

law defenses, except those defenses applicable

to alleged gross negligence.

Under § 406.034 of the TWCA, unless an employee gives notice to the

contrary, "an employee of an employer waives the employee's right

of action at common law or under a statute of this state to recover

damages for personal injuries or death sustained in the course andTex. Labor Code Ann. § 406.034 (West 1995).

1989 WL 251223, 132 L.R.R.M. 2741, 2743 (BNA) (W.D. Tex.

1989), citing Tigrett v. Heritage Bldg. Co. , 533 S.W. 2d 65 (Tex.

App. 1976).

Id

.

5 scope of the employment." 4

Cupit asserts that this arrangement is contrary to the public

policy behind the TWCA, arguing that the CBA creates an unregulated

self-insuring scheme. Cupit's position is wholly dependent on his

assertion that his union was without authority to bargain away his

right to sue for his injuries. We disagree with Cupit and agree

with the district court in Lozano v. Ingram Mfg. Co.

, 5 which held:

The collective bargaining agreement does not

violate public policy as expressed in the

Texas Workers' Compensation Act.

Participation in the statutory workers'

compensation plan is voluntary, and an

employer may elect to refrain from being a

subscriber under the Act. An agreement

between a non-subscribing employer and its

employees whereby the non-subscribing employer

contractually obligates i tself to provided

benefits to its employees equal to or greater

than those provided under the Texas Workers'

Compensation Act is a valid and enforceable

contract.

Cupit has cited no case law supporting his contrary assertion, and

we find none independently. We therefore hold today that the

analysis and conclusion re ached by the quoted language of the

district court in L ozano 6 reflects the correct status of the law

applicable to this situation.

Other than in his argument that the UTE could not bargain that

right away, Cupit does not specifically add ress the district6

court's conclusion that he is barred from filing suit because he

did not exhaust his remedies under the C BA. Neither does Cupit

address the di strict court's interpretation of the CBA that his

gross negligence claim was covered by the language of the CBA and

TWCA. As he thus forfeits any objection to those rulings, they too

must stand. See Randall v. Chevron , 13 F.3d 888 (5th Cir. 1994).

III.

CONCLUSION

For the reasons set forth above, we affirm the summary

judgment of the district court in favor of the Defendants. In so

doing, we reject the Cupits' contentions that in this instance the

applicable provisions of § 301 o f the LMRA do not preempt state

law, and that those provisions are somehow unlawful under Texas law

and against Texas public policy.

AFFIRMED

.