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Lawrence v. CDB Services3/29/2001
ng language must be "conspicuous." Id. Whether a release is conspicuous is a question of law. Id. Language that appears in contrasting type or in capitals satisfies the conspicuousness requirement. Id. at 274-75. We agree with the court of appeals that CDB's election meets both the express-negligence and fair-notice requirements. See Id. at 274; Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 508 (Tex. 1993); Ethyl Corp. v. Daniel Constr. Co., 725 S.W.2d 705, 707-08 (Tex. 1987).
IV. Conclusion
The Texas Workers' Compensation Act neither clearly prohibits nor clearly allows voluntary pre-injury employee elections to participate in nonsubscribing employers' benefit plans in lieu of exercising common-law remedies. And whether or not such elections should be held void on the theory that they contravene the general statutory scheme and thus violate public policy is a decision that we believe, absent clear legislative guidance and in light of numerous competing public policy concerns, is better left to the Legislature. Accordingly, we decline to invalidate the petitioners' elections on public policy grounds and affirm the court of appeals' judgments.
For eighty-eight years workers' compensation legislation has provided a closely-monitored compensation scheme to encourage employers' participation in the workers' compensation system and to ensure all injured employees adequate redress. Today, by declining to invalidate the waivers at issue on public policy grounds, the Court ignores the Texas Workers' Compensation Act's statutory scheme and its established underlying public policies. Instead, the Court elects to defer to the Legislature to resolve what the Court improperly calls "competing public policy concerns." __ S.W.3d at __. Because the Court's choice is contrary to the public-policy decision the Legislature has already made and embodied in the Act, I dissent.
I. APPLICABLE LAW
A. The Workers' Compensation Act
In 1913, the Texas Legislature enacted workers' compensation legislation "to meet the needs of an increasingly industrialized society." Texas Workers' Comp. Comm'n v. Garcia, 893 S.W.2d 504, 510 (Tex. 1995). At the time, despite the rising number of workplace injuries, most employees were denied any recovery because it was difficult to establish workplace negligence and employers invoked complete common-law defenses, such as contributory negligence, assumption of the risk, and fellow servant, to bar negligence claims. See Garcia, 893 S.W.2d at 521. Consequently, the Legislature passed the first workers' compensation legislation with the "general purpose . . . [of working] an important change in the law in regard to the liability of employers for personal injuries to their employees, or for death resulting from such injuries, and the compensation afforded therefor to employees or their beneficiaries." Middleton v. Texas Power & Light Co., 185 S.W. 556, 558 (Tex. 1916).
In 1989, the Legislature passed the Texas Workers' Compensation Act to resolve problems with existing legislation. Garcia, 893 S.W.2d at 511-14. However, the provisions governing compensation for injured employees have remained largely unchanged since the early 1900s. See Kroger Co. v. Keng, 23 S.W.3d 347, 349-50 (Tex. 2000) (describing workers' compensation legislation in 1913); Garcia, 893 S.W.2d at 521 (noting that the Act carries "forward the general scheme of the former act"). Under the Act, an injured employee whose employer subscribes to workers' compensation insurance may recover statutorily-prescribed benefits without regard to the employer's fault or the employee's negligence. See Tex. Lab. Code ยงยง 406.031, 406.033; Kroger Co., 23 S
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