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
federal preemption under § 301 of the Labor Management Relations
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 "nonsubscriber 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 alleged negligence and gross negligence, and his
wife alleged a loss of consortium.
The Defendants removed the case to federal district court
based on federal 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.
29 U.S.C. § 185.
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Some two months after Defendants' summary judgment motion was
filed, the district court issued a memorandum 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. Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert.
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, 322
3
(1986). In this case, the Cupits are not arguing that the summary
judgment was inappropriate due to the existence of a factual
dispute; rather, they take issue with the district court's legal
conclusions.
Pursuant to § 406.002 of the Texas Workers' Compensation Act
(TWCA),2 Gypsum 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 and
Tex. Labor Code Ann. § 406.002 (West 1995).
Tex. Labor Code Ann. § 406.033 (West 1995).
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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 itself 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 reached by the quoted language of the
district court in Lozano6 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 address the district
Tex. 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.
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court's conclusion that he is barred from filing suit because he
did not exhaust his remedies under the CBA. Neither does Cupit
address the district 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 of the LMRA do not preempt state
law, and that those provisions are somehow unlawful under Texas law
and against Texas public policy.
AFFIRMED.
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