United States Court of Appeals

Fifth Circuit



## FILED

June 2, 2003

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________________

No. 02-41160

Summary Calendar

__________________________

RODNEY SENIGUAR,

Plaintiff - Appellant,

versus

FORD MOTOR COMPANY; DAVID J. BICKERSTAFF;

DAVID J. BICKERSTAFF AND ASSOCIATES INCORPORATED,

Defendants - Appellees,

__________________________

Consolidated with

No. 02-51025

__________________________

STEVEN JOY,

Plaintiff - Appellant,

versus

FORD MOTOR COMPANY,

Defendant - Appellee.

___________________________________________________

Appeals from the United States District Courts

Eastern District of Texas

(No. 1-CV-243)

and

Western District of Texas

(No. 1-CA-271-SS)

___________________________________________________ Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be

published and is not precedent except under the limited circumstances set forth in 5th Cir. R.

47.5.4.

2 PER CURIAM: *

Plaint iffs assert the settlement agreements and releases they signed with Ford Motor Company

(“Ford”) to compromise their Ford Bronco II roll-over suits do not preclude the present actions

claiming they were fraudulently induced to sign the settlement agreements. The district courts

disagreed and granted Ford summary judgment, finding plaint iffs had discla imed reliance on Ford

representations. The Seniguar court also dismissed the action as proscribed. We affirm.

Under Texas law, “a disclaimer of reliance may conclusively negate the element of reliance, which

is essential to a fraudulent inducement claim.” S ee Schlumberger Tech. Corp. v. Sw anson , 959

S.W.2d 171, 179 (Tex. 1997). The contract and the circumstances surro unding its formation

determine whether the disclaimer of reliance is binding. I d. at 179. Relevant circumstances include

whether both parties were represented by highly co mpetent counsel, i d. at 180, and whether the

parties sought to disclaim reliance on representations about specific matters in dispute, id. at 181.

There is no dispute the parties were represented by highly competent counsel. The parties argue

whether they sought to disclaim reliance on representations about specific matters in dispute, e.g.

,

whether they sought to disclaim reliance on t he allegedly suborned expert opinion of David J.

Bickerstaff. We conclude the releases disclaimed reliance.

The Seniguar settlement agreement releases Ford for “all known and unknown . . . matters and

things from the beginning of time to the date of these [particulars]

. . . invo lving

. . . the incident made

the basis of the Lit igat ion.” It provides that “no representation of any kind has been made to

[Seniguar and his parents] with respect to this settlement by Ford Motor Company . . . .” Instead,3

Seniguar and his parents “acknowledge and represent that they have relied upon the legal advice of

their attorney s

. . . .” Seniguar’s disclaiming of reliance on representations by Ford, coupled with the

explicit reliance on retained counsel, precludes a claim of reliance on Bickerstaff’s expert opinion.

In the Joy settlement agreement, plaint iffs “expressly waive[d] and assume[d] the risk of any and

all claims for damages which exist[ed] as of [the date of execution], but of which they d[id] not know

or suspect to exist, whether through ignorance, oversight, error, negligence, or otherwise, and which

whether or not, if known, would [have] materially affect[ed] the de cision to enter into [the

agreement.]” Further, plaint iffs “assume[d] the risk that the fact or laws may be otherwise than they

believe.” These contractual clauses, combined with the context of the settlement, demonstrate that

the Joy plaint iffs disclaimed any reliance on Ford’s representations about the disputed facts and

settlement value of the underlying lawsuit. Additionally, the Joy plaint iffs represented “that they [had]

relied upon the legal advice of their attorney s

. . . .” Their signing attorney, Ted Turner, knew of the

alleged inconsistencies in Bickerstaff’s testimony and also knew Ford was paying Bickerst aff’s

consulting firm large sums of money.

For these reasons, we AFFIRM.