* John T. Boyd, Chief Justice (Ret.), Seventh Court of A ppeals, sitting by

assignment

.

1 Tex. R. App. P. 47.2(a)

. NO. 07-02-0169 -CV

IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L E JANUA RY 14, 2003

______________________________ TEXAS WORKERS’ COMPENSATION COM MISSION, APP ELLANT V. TEXAS W ORKER’S COMPENSATION IN SURANCE FUND, APPELLEE

_________________________________ FROM THE 1 27TH DISTRICT COURT OF HARRIS COUNTY; NO. 98-39523; HON ORABLESHARO LYN WOOD, JUDGE

_______________________________ Before QUINN and REAVIS, JJ. and BOYD, S.J. * OPIN ION 12 Tex. Lab. C ode Ann. § 401.001 (Vernon Supp. 1998 & 2003) (hereafter the A ct). 3 The Com mission does not present an issue contending that a genui ne issue o f m aterial fact

exist s and pr ecludes s um m ary j udgm ent. Tex . R. C iv. P. 1 66a(c). 4 Although rep res ented b y coun sel i n the trial court, Everett di d not fil e a notice of app eal. 2 The Te xa s W or ke rs ’ C omp en sa ti on Co mmi ss i on (C omm ission ) presents tw o issues challenging a sum mary judgm ent that the Texas W orker’s Com pensation Insurance Fund (Insurance Fund) be relieved of a ll liability for worker’s c ompen sation benefits to Glenn Everett, therea l par

ty of intere st. By

itsfirst is sue , th e Co m m iss io n conten ds that the TexasW orkers’ Compensation Act 2 abrogates the com mon law defense of electio n of remedies, and by its second issue, contend s t hat Everett did not m ake an election of re med i es . B as ed on th e r at i on al e e xp re ss ed he re i n, we a ff i rm. 3 Sui t by Ever

ett 4 Following injuries to his leftarm on Decem ber 21, 1995, Everett filed suit agai nst Jeffery Evansd/b/a The Finished Touch on Marc h 22, 19 96, alleging th at his inj uries were caused by the negligence of The Finished Touch while he was using equipment prov ided byThe Finished Touch and sought to recover act ual and pun itive damages . The first written notice of injury w as received by the insurance carrier on April 19, 1996, wh ich was followed by notice filed bythe insurance carrier for The Finished Touch on April 25, 1996, asserting that paym entof benefits was denied becaus e no inj uryoccurred i n the course3

and scope of em ployment and Everett w

as an independent contractor, not an em ployee. However, by its original answer filed on May 3, 1996, The Finishe d Touch con ten ded it wascovered by a workers’ compensa tion i nsurance pol icy and that Everet t’s exclusive remedy was und er the Act, not a n act ion for damages based on ne glig ence grounds; however, the pleading was am ended withdraw ing the defense that coverageunder the Act wasEverett’s exclusive rem edy. Evere tt t hen filed hisclaim for w orker’s com pensation on October 16, 1996. While his suit was pend ing and his worker’s compen sation claim rem ained contested, on February 18, 1997, in consideration of the paym ent to him of $37,500, Everett signed a five and one- half page Compromise Settlement Agreement and Release of All Claims w hich bore the num ber and style of Everett ’s suit, b y which, am ong other things, paragraph 3 released “the Defend ant . . . and an y and all oth er perso ns, firm s, p art ie s, and corporations that m ightbe in privity with them . . . specifically including any and al l cla im s for breach of contrac t, breach of w

arranty, and/or tort, or otherwise, which w

ere ma de or could have been m ade against Defendant as a result of the Occurrence.” Paragraph 4 p ro vi de d t ha t t he ag re eme nt wou l d b e a “b ar to an y p ro se cu ti on of ” c l ai ms and Everett agreed to dismiss his suit w ith prejudice and to deliver amotion to dismiss and order dismissing his action with prej udice. As also m aterial here, by paragraphs 5 and 6 of theagr eem ent , E ver

ett agr eed not to b ring any

act ion a t law

or in equity based upon the4

occurrence and agreed to defend, hold harm less, and indemnify thedef endant, “ its assigns . . . insurers . . . or any other pers ons, entities, parties, or corporations in privity with th em . . . ” from all claims, whether in contract, tort, or statute, w hether third party actions, actions in intervention, cross-actions, or otherw ise. Then, am ong other later provisi ons, by paragraph 9, Everett represented that he m ade the agreem ent“o f h is own free w ill in acc or da nc e wi th hi s own judgm ent and after consultation w ith his attorneys . . . .” Suit b y Insurance F und Following the execution of the settlement agreem ent and paym ent of consideration, on N ove m ber 4, 1 997 , E ver

ett dec id ed to pursue hi s claim for worker’s com pensation. After the hearing’s of ficer made a n award toEverett, the decision was reviewed and affirmed byan appeals panel. Following this decision, the Insurance Fund filed suit against Everett on A ugust 18, 1998, seeking, am ong other relief, to set aside the decision of the appeals panel, judgm ent that Everett ma de an election of reme dies, that he did not suffer any disabili ty, and for costs. Alle ging tha t th e de cis ion of th e ap pea ls panel was

erro ne ous because it was not supported by evide nce and was an incorre ct application of the law tothe facts, the Ins urance Fund sought a determ ination that Everett did ma ke an election of remed ies and that he did not have disability from Decem ber 21, 1995, to February 6, 1997. In res ponse, Everett f iled an answer w hich included a general denial and affirmat ive defenses of limitations and laches. At a benc h trial on the m erits on5

August21, 2000, thetrial court found that Everett did make a binding election of remedies when he elected to pursue and settle a claim for dam ages and that such election barred hisright to receive workers’ com pensation benefitsand signe d an interloc utory judgm ent based upon i ts findi ngs. The judgm ent also directed that the Insurance Fund prepare a final judgm ent and that it be sent to the Com mission w ith notice as required by the Labor Code. Following receiptof the interlocutory judg ment , the Com mission filed its pet ition in intervention contending that the decision of the appeals panel was correct because Everett did not m ake an election of rem edies and filed its traditional motion for sum mary judgm ent contending the s ame. The C omm ission did not contend that the com promise and s ettlement

agreem ent was voidable because of fraud, accident, or m istake, or th at th e insurance carrier’s defense that E verettwas an independent contractor was not m ade in good faith. After the C omm ission filed i ts m otion, the Insurance Fund filed a com peting mot ion supported by ten ex hibits contending that Everett m ade an election of rem edies and tha t it sho uld be relieved of liabil ity. Following subm ission of the two m otions, the trial court signed a fi nal judgm ent on Decem ber 18, 2001, ordering that Everet t’s election of remedies barred his rig ht to receive workers’ compensation benefit s from the Insurance Fund and orderi ng that the Insura nce Fund be reli eved of all liabi lity for workers’ com pensation ben efits toEvere tt a s a res ult of his Decem ber 21, 19 95 in jur y. Bef or e we co mmenc e o uran an al ysi s, we fi rs t se t fo rt h t he ap pr op ri at e st an da rd of re vi ew.6 Sum mary Ju dgm ent Stan dard

of Review Fo ra party

to prevai l on a tradi tional motion for summary j udgment, he mus t co nc lus ive lyes ta blis h t he ab s en c e o f a ny g en uin e q ue s tio n o f m at er ial f ac t a nd th at he is ent i tl ed to j udg men t a s a m at te r o f l aw. Tex . R. Ci v. P. 166a(c ). Thi s requi rement di ctates thatwhen the def

enda nt i s t he movant, he must concl usivel y ne gate at le ast one of the essenti al ele me nt s of th e p lain tif f's ca us e o f a c tio n. Lik ew ise , a de fe nd an t w ho co nc lus ive ly establ ishes each el ement of a n affi rmati ve defense i s ent it le d to summary j udgment. Ra nd all's Food Mark ets, Inc. v. Johnson, 891 S .W .2d 64 0, 644 (Tex. 19 95). In N ixon v. M r. PropertyManagement Co ., 690 S.W .2d 546, 548-49 (Tex. 1985), the C ourt set out the standard by whi ch we are to revi ew a summary j udgment:
1. The movant fo r summary j udgment has t he burd en of showi ng that th ere is no genui ne i ssue of

materi al fact and that i t i s enti tl ed to j udgment as a matter of l aw. 2. In deci di ng wh eth er the re i s a di sput ed ma ter i al fact i ss ue pre cludi ng sum mary j udgment, e viden ce favorabl e to the non-movant wil l be taken as true. 3. Ev ery reason able inferenc e mus t be indulged in fav or o f the no n-m ovant and an y doubts resolve d in its favo r. Once the movant h as establ ished a ri ght to summar y j udgment, t he non- movan t has the burden to resp ond to the mo tion and pre sen t to the trial cou rt any i ssues that woul d precl ude summa ry

j udgm ent . Ci ty

of Houst on v. Cle ar Creek Basi n Authori ty , 589 S.W.2d 671, 678 (Tex. 1979); Barbouti v. Hearst Corp ., 927 S.W .2d 37, 64 (Tex.App.--Houston [1st Di st.]7

1996, wri t deni ed). Issues which t he non -mov ant contends preclude the granti ng of a sum mary j udgm entmustbe expressly presente d to the tri al court by wri tten answer or

other wri tte n respo nse to the mot i on a nd n ot b ymere refe re nce to summary j udgment evi dence. McConnell v. Southsi de School Dist. , 858 S.W.2d 337, 341 ( Tex. 1993) . Issue s not ex pr es s lypresente d to the tri al court i n wri ti ng shal l not be consi dered o n appeal as ground s for reversal. Tex . R. Ci v. P. 166a(c) . Furt her, a ll theor ie s in support o f or i n opposi ti on to a moti on for sum mary j udgment must be presente d i n wri ti ng to th e tri al court. Casso v. Brand, 776 S.W .2d 551, 553 (Tex. 1989).
W here, as here, both si des move for summary

j udgment and the tr ia l court gr ants one motion an d denies the oth er, on appeal, we review the summary j udgment evidence of both sides and deter mine al l questi ons presente d, and render j udgm entthe tr i al cour t sho ul d ha ve rendered. Bradley

v. State ex re l . Whit e, 9 90 S. W .2d 245 , 24 7 ( Tex. 199 9) . Greg L ai r, Inc. v. Spri ng, 23 S.W.3d 443, 446 (Te x. App. --Amar i l l o 20 00, pet . de ni ed) . Moreove r, beca use nei ther party presente d any

objecti ons to the summary j udgment evidence in the tri al court, we may cons id e r a ll ofth e s um ma ry jud gm en t e v ide nc e in th e r ec or d. Gr an d P ra irie Independen t School Di stri ct v. Vaughan, 79 2 S .W .2 d 9 44 , 9 45 (T ex . 1 99 0) ; C alp v. Tau Kappa Eps il on Fra ternity, 75 S. W .3d 64 1, 645 -46 (Tex .Ap p.--Am arill o 2002 , pet. d enied). Analysis Instead of presenti ng a general poi nt of er ror or i ssue as permi tted by Mal ool yBro the rs, Inc. v. Na pi er , 46 1 S.W.2d 1 19, 121 (Te x. 197 0) , t he Co mmi ssi on p re sent s the se i ssues:5 A motion for

sum m ary

j udg m ent

sho uld “state the specific grounds” for the mot ion. Tex. R. Civ. P. 16 6a (c). 8 1. Does t he Te xas W or ker s’ Comp ensa ti on Actby creating exp ress statu tory ri ghts abro gate the common l aw el ecti on of remedi es defense? 2. W hen an injured em ployee pursues alternative methods of recovery and r eceives a no adm ission of liability se ttlem ent from the em ployer an d c ont inues to pursue tim ely his exclusive rem edy of workers’ com pensation benefits, can such a settlement rise to th e level of an electi on of remedies? For purpose s of our anal ysis, we w ill consider the “grounds” 5 set out in the Commission’s mot ion for summ ary judgm ent: 1. Under the “new

law” Workers’ Compensat ion Act adopted in 1989, the Le gi sl at ur e a l l ow ed on e y ea r t o f i l e a wor ke r’ s c omp en sa ti on cl ai m. 2. Under Texas

Labor C ode, section 406.035 stated “except asprovided herein, an a greem ent by an em ployee to waive the em ployee’s right to com pensation is void.” The defendant could not have agreed in any fashion notto give up his right to com pensation m erely by receiving a settlement from the em ployer, esp ecia llywhen t he insurance carrier, the Plaintiff, was denying the Claimant’s right to com pensation. 3. Under the “new law ,” the Legislature created the right of a subclaim ant for the first t ime, and, u nder Texas Labor C ode section 409.009 . . . . A n y person o r en tit y has an independent right as a subc laimant to seek reimbursem entfor any service s for the workers’ com pensation insurance carrier, and if they wish to pursu e that right they can. 4. The four factors, which must all four be met, un der the Bocan egra test were no t a ll sho wn to have [been] m et as a m atter of law. Without all four factors me t, an election of rem edies has not been m ade. This right cannot9

be taken away by attem pting to create an election of remedies, which such under the ne w law is not inconsistent or allowing an injured em ployee a double r ecovery. Because grounds 1 and 3 are not im plicated here, we w ill di rect our attention to ground 1 as it relates to issue one and ground 4 as it relates to issue two. In support of its first issue, citing section 406.035, the Com mission arguesbecause the Act creates express statutory rights, it abrogates thecom mon law election of rem edies defense. That secti on provid es: § 406.035 Waiver of Compen sation Pr ohibited Ex cep t aspro vide d by

this subtitle, an agreem entby an employee to waive the em ployee’s right to com pensation is void. The Com mission has not cited any case authority for its position and the issue presents a question offirst impressio n as appli ed to these uni que facts. Although section 408.001 providesthat re covery under th e Act “is the exclusi ve r emedy of an em ployee covered by w orkers’ com pensation insurance coverage,” befor e thatprovision applies, the injured person m ust have been an “em ployee” as defined by the Act. An “em ployer” is aper son “w ho m ake s a con tra ct of hir e” a nd a n em ployee isa person whoworks fo r an em ployer, exclu ding independent contractors. Tex . Lab. Code Ann . §§ 401.011(18) & 401.012(b) (Vernon Supp. 2003).10

The Com m iss ion’ s ar

gum ent inco rre ctly

ass um es t hat

theter m ”waive r” a s us ed in the statute is synonym ous with the doc trin e of elec tion of r em edie s. “Waiver

” is com m only defined “as the intentional release, relinqui shm ent, o r surr ender of a known right.” Se e Fisherv. First Nat. Bank of Mem phis, 584 S.W.2d 515, 519(Te x. Civ .A pp. --A m arillo1979, no writ), citing Ford v. Culbertson, 158 Tex. 124, 308 S.W.2d 855, 865 (1958). Election of remediesis b roa dly

defined as the act of c hoosing between tw o or m ore inconsistent but coexistent

mo d es of procedure and reli ef all owed by law on the same state of facts. CustomLeasing, Inc. v . Texas Ba nk & Tr . Co. of Dallas, 4 91 S.W.2d 869, 871 (Tex . 1973). W here, as here, the Legi slature do es not define a term, its ordinary mea ning will be applied. Hopkins v. Spring Independent S chool Dist., 736 S.W.2d 617, 619 (Tex . 1987). As is apparen t from

considering the definitions of “waive r” a n d “election of remedies,” section 406.035 does not abrogate the com mon law defense of e lection of remedies. Moreover, because a “right” must exist before it can be w aived, the uncertainty of Everett’s status as an em ployee precluded a wa iver of com pensation benefits by executing the settlement

agreem ent. Accordingly, taken i n the context of this record, the Act does not abrogate the com mon law election of rem edies defense. Issue one is overruled. Byits second issue, the Com mission argues tha twhere an em ployee set tlesa c laim against an em ployer

and thereafter pursues a t imely filed worker’s com pensation claim, the settlement

does not rise to the level of an election. Based on this record, we disagree. The Com mission ackno wledges that the insurance carrier disputed Everett ’s claim asan11

employee. Further, the Com mission did not seek to avoid the settlem entagreem ent on the grounds of fraud, accident, m istake, or otherwise, or challenge t he good faith of the insurance carrier in disputing Everett’s statusas an em ployee. In deciding this issue, it is important to consider the chronology of the following eventsin light of paragraph 5 of the settlement

agreem ent: Decem ber 21, 1995 Injury; March 22, 1996 Everett files com mon law personal injury ac tion; April 25, 1996 Insurance carrier disp utes s tatus as a n employee; October 16, 1996 Everett filed com pensation claim; February 18, 1997 Co mpr omi se settleme nt a greement signed and $37,500 paid to Evere tt. Als o, $ 2,2 17. 65 p aid in attorney’s fees and co urt costs; Novem ber 4, 1997 Eve rett decides to pursue his com pen sat io n cl ai m; record is silent as to why Everett delayed in pursuing his claim for com pensation. Sum marized here, by paragraph 5 of the settlem ent agreem ent, Everett also agreed that he would not bring, com mence, institu te, nor maintain any claimagainst The Finished Touch, itsinsu rer

s, o r ot her

s w ho m ig h t be in privity with them . Also, in paragraph 6, Everett agr eed to i n demnify a nd hold The Finished Touch, et al. ha rml es s f ro m cl ai ms based in contract, tort, or stat ute. Although the Insu rance Fund did not contend that th e agreemen t constituted a “release” of clai m s, i t did contend that it operated as an election of rem edies.12

In Custom Leasi

ng , 491 S.W.2d at 871, the Court held: An election of remedies is the ac t of choosing bet

ween t wo o r m ore inconsistentbutcoexistent m odes of procedure and relief all owed by law on the sa me state of facts . When a party thus chooses to ex ercise one of them he a b andons his right to exercise the other rem edy and is precluded from resorting to it. The Com mission contends that the four elem ents of the doctr i ne a s an nou nce d in Bocanegra v. A

etna Life Ins. Co., 605 S.W.2d 848, 851 (Tex. 1980), to-w it: when (1) one successfull y exercises an info rmed choice (2) between t wo or m ore remedies, rights or states of facts (3) which are so inconsistent asto (4) constitute m anifest injustice

werenot es tablished by the su m m aryjudgm ent evidence. We disagree for the following reasons. Exerciseof informe d choice. In Bocan egra , the Court held that the w orker did not makean informed c hoice because she w as a laym an and the m edical terms and issues werebeyond her general understanding. Here, however, Everett m ade an informed choice because the term s used in the com promise and s ettlement a greement are com monly use d and Evere tt a ckn ow ledg ed t hat he s igne d th e ag ree m ent “af ter con sultatio n w ith h is attorne ys.” Two or more remedies or rights. Beca use Everett’s status as a em ployee was challenged at the tim e of the agreem ent, the exclusive remedy p rovision in section 408.00113

and the “opt out” provisions in section 406.034 were not controlling. Therefore, Everet t cou ld have diligently prosecuted his worker’s compensation clai m or could, as he did, el ect to accept $37,500 in accordan ce with the comprom ise and settlemen t agreem ent. In consi stent. Unlike a common law action for damages, workers’ com pensation benefits are not dependent on a finding of fault. Further, where an injured person i s an employeeas defined by the Ac t, the prosecution of a com mon law negligen ce ac tion against an em ployer is prohibited under section 408.001. Constitute m anifest inj ustice. Everett signed acon tra ct afte r co nsu lting w ith h is attorneyby which, among other things, he agreed not to assert any claims arising under com mon law, in equity, or statute. Notwithstan ding his agreement not to purs ue aclai m after he was paid $37,500, Evere tt p urs ued his com pen sat ion c laim . M ore ove r, apar ty i s gen era llynot entitled to a double recovery w hich exists whe n a party obtains m ore than one recove ry f

or t he s am e inj ury . Waite Hill S erv ices , In c. v . World Class Metal, 959 S.W.2d 182, 184 (Tex. 1 998). We have not overlooked the Co mm ission’s argumen t regarding section 410.253; however, because courts generally presum e that a statute s hall operate prospective ly only, Subaru of Am erica v. David McDav id Nissan, 84 S.W.3d 212, 219 ( Tex. 2002), and because that statute w as not effective until Septem ber 1, 19 97, it doe s not apply to a settlement

agreem ent m ade in February of 1997. Moreover, theiss ue w as n ot exp res sly14

presented to the trial court by written answer or respons e. McConnell , 858 S.W.2d at 341. Issue tw o is overruled. Accordingly, the j udgme nt of the trial court is affirmed. Don H. Reavis Justice