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Johnson v. Triple Industrial Corporation3/23/2000
This is an appeal from a summary judgment which severed the portion of appellants' lawsuit involving injuries to appellant, Larry's, lower back. In their original petition, appellants contend that Larry injured his back, spine, spinal cord, and nervous system on the job when the forklift he was operating collided with a parked vacuum sweeper truck, owned and operated by appellee, which was left unattended by appellee. The petition further alleges said collision occurred on January 25, 1996. Appellee's amended answer raised a number of defenses including the affirmative defense of estoppel. See Tex. R. Civ. P. 94. Said defense was pleaded as follows:
v.
The Plaintiff is estopped to claim that injuries to parts of Mr. Johnson's body, other than his neck, were caused or contributed to by the accident made the basis of this lawsuit for the reason that the Plaintiff has affirmatively sought, and received, money as a result of claiming that other injuries to his body were the result not of an accident on January 25, 1996 but rather an alleged accident on January 31, 1996. In the alternative the Plaintiff has waived such claims.
Thereafter, appellee filed a motion for partial summary judgment and motion for severance contending that Larry's only physical complaint following the January 25, 1996, collision was to his neck, and only later on January 31, 1996, did Larry first complain of an injury to his lower back following his lifting of buckets. The trial court granted said motion for summary judgment apparently on these grounds because it then severed Larry's neck injury claim and continued that cause as a viable cause of action.
The doctrine of "election of remedies" is an affirmative defense that, under certain circumstances, bars a person from pursuing two inconsistent remedies. Medina v. Herrera, 927 S.W.2d 597, 600 (Tex. 1996). In Bocanegra v. Aetna Life Ins. Co., 605 S.W.2d 848, 851 (Tex. 1980), the Supreme Court noted that the election of remedies doctrine combines elements of estoppel, ratification, and unjust enrichment. Although recognizing that the doctrine has been "widely criticized," id. at 850, the Court concluded that it survives in several branches of the law to prohibit inconsistent legal positions that may produce manifest injustice:
n election will bar recovery when the inconsistency in the assertion of a remedy, right, or state of facts is so unconscionable, dishonest, contrary to fair dealing, or so stultifies the legal process or trifles with justice or the courts as to be manifestly unjust.
Id. at 851. Based upon these principles, the Court fashioned the following test:
The election doctrine, therefore, may constitute a bar to relief when (1) one successfully exercises an informed choice (2) between two or more remedies, rights, or states of facts (3) which are so inconsistent as to (4) constitute manifest injustice.
Id.
Generally, in order to prevail on a motion for summary judgment, the movant must either prove that no genuine issue of material fact exists, affirmatively disprove at least one element of plaintiff's cause of action, or prove an affirmative defense as a matter of law. American Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548 (Tex. 1985). The movant bears the burden of proving that he is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). On review, the appellate court must take as true all evidence favoring the non-movant and indulge every reasonable inference in his favor. Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 510 (Tex. 1995). Because appellee's
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