dissenting. I respectfully disagree with the majority opinion. In my view, the opinion contravenes statutory law, public policy, and case law. In short, the opinion adopts a rule which will be coercively applied against employees, whereby employers can compel employees, in exchange for hiring them, to waive any right of redress for any injury sustained resulting from a negligent act of the employers’ clients or customers. If employees refuse to waive their rights, they simply will not be hired, or if already employed, will lose their jobs.
Initially, Entergy’s argument is beguiling. It says Michelle Edgin, when applying for a job with her employer Wackenhut Corporation, agreed to waive her claim for any job-related injury she may sustain resulting from the negligence of one of Wackenhut’s customers, because Edgin would already be receiving Workers’ Compensation benefits for the injury. The waiver, however, makes no mention that the Workers’ Compensation law specifically provides that her making a claim for Workers’ Compensation benefits shall not affect her right as an employee to sue any third party who may have negligently caused her injury. See Ark. Code Ann. § 11-9-410 (Repl. 1996). (Emphasis added.)
Indisputedly, any agreement whereby an employee waives his right to compensation benefits is invalid. Ark. Code Ann. § 11 — 9— 108(a) (Repl. 1996). Section 11-9-108(a) also provides that no contract shall operate to relieve the employer or carrier, in whole or in part, from liability under Chapter 9 of the Workers’ Compensation law. This statutory provision is designed to protect employees against the practice of unscrupulous employers to avoid compensation liability by having employees sign a contract waiving all their rights to compensation in consideration of being employed. Bryan v. Ford, Bacon & Davis, 246 Ark. 327, 438 S.W.2d 472 (1969).
While in the present case, Michelle was not asked by Wackenhut to waive her compensation benefits in exchange for an opportunity to work, she was requested, before hiring her, to release any legitimate negligence action she would have against Wackenhut’s customers. Wackenhut, by law, must furnish its employees Workers’ Compensation coverage and that law in no way authorizes it, as an employer, to protect its customers against liability those customers may have under § 11-9-410(a). Surely employer Wackenhut should not be able to entice business customers by assuring them immunity from suit that might arise under § 11-9-410(a). Wackenhut should not be able to force an employee to waive in futurity his or her statutory right against a third-party tortfeasor in exchange for Wackenhut giving a job to the employee. Arkansas statutory law establishes public policy, see Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988), and here that law and policy gives an employee the right to maintain an injury action in court against any third party, and Wackenhut, or any employer, has no authority to divest its employees of that right.
Even if Wackenhut’s waiver provision was not void as against public policy, another reason requires the trial court’s reversal. I would add that this court has never upheld an agreement purporting to release a party from liability for his own negligence before it occurred. Firstbank of Ark. v. Keeling, 312 Ark. 441, 850 S.W.2d 310 (1993). The reason for disfavoring such clauses is based upon the public policy of encouraging the exercise of reasonable care. Id. at 445. While it is not impossible to avoid liability through contract, the contract must at least clearly set out what negligent liability is to be avoided. Middleton & Sons v. Frozen Food Lockers, 251 Ark. 745, 474 S.W.2d 895 (1972). Contracts which exempt a party from liability for negligence are not favored by the law, and they are strictly construed against the party relying on them. Farmers Bank v. Perry, 301 Ark. 547, 787 S.W.2d 645 (1990); Gulf Compress Company v. Harrington, 90 Ark. 258, 119 S.W. 249 (1909).
In her application for employment with Wackenhut, Michelle Edgin signed the following release or waiver which reads in pertinent part:
In recognition of the fact that any work-related injuries which might be sustained by me are covered by state Workers’ Compensation statutes, and to avoid the circumvention of such state statutes which may result from suits against the customers or clients of Wackenhut based on the same injury or injuries, and to the extent permitted by law, I HEREBY WAIVE AND FOREVER RELEASE ANY RIGHTS I MIGHT HAVE to make claims or bring suit against any client or customer of Wackenhut for damages based upon injuries which are covered under such Workers’ Compensation statutes.
Entergy argues that the release is clear and unambiguous and therefore valid. However, the clause stating that “any work related injuries which might be sustained by me are covered by state Workers’ Compensation statutes” is erroneous and misleading. Not all work-related injuries are covered by workers’ compensation. Further, the clause does not clearly set out what negligent liability is to be avoided. Taken literally, this language could release Entergy for even intentional torts. Again, such an interpretation would be against public policy.
Imber, J., joins this opinion.