Ross v. Union Carbide Corp. (Tex.App.- Houston [14th Dist.] Aug. 25, 2009) (Guzman)(en
banc)(
asbestos survivors claim for exemplary damages and loss or consortium barred by release signed by
worker prior to death)  
AFFIRMED: Opinion by
Justice Eva Guzman    
Before Price, Chief Justice Hedges, Justices Brock Yates, Anderson, Frost, Seymore, Guzman, Brown and
Sullivan  
14-07-00860-CV Marjorie Ross, Joan Seelback, Timothy R. Ross, James R. Ross, Billy R. Ross and Robert
R. Ross v. Union Carbide Corporation   
Appeal from 133rd District Court of Harris County
Trial Court Judge:
Lamar McCorkle
Concurring Opinion by Justice Frost in Marjorie Ross, Joan Seelback, Timothy R. Ross, James R. Ross,
Billy R. Ross and Robert R. Ross v. Union Carbide Corporation   
Concurring Opinion by Senior Justice Price in Marjorie Ross, Joan Seelback, Timothy R. Ross, James
R. Ross, Billy R. Ross and Robert R. Ross v. Union Carbide Corporation  
                                        
M A J O R I T Y  O P I N I O N  O N  E N  B A N C  R E V I E W  

In this asbestos case, we must determine whether a broad settlement and release agreement executed by an
injured worker and his wife acts as a bar, after the worker's death, to his survivors' claims against his
employer for exemplary and loss-of-consortium damages.  In particular, the survivors argue that their
exemplary-damages claim is not derivative of any cause of action owned by the worker or that accrued
during the his lifetime, but is instead an independent cause of action under the Workers' Compensation Act
and article XVI, section 26 of the Texas Constitution.  They therefore contend that the trial court erred in
granting summary judgment to the employer based on the worker's release of his claims.  We disagree with
the survivor's premise that their exemplary-damages claim is a nonderivative cause of action, overruling our
prior decision in Perez v. Todd Shipyards Corp., 999 S.W.2d 31 (Tex. App.-Houston [14th Dist.] 1999), pet.
denied, 35 S.W.3d 598 (2000).  We also disagree with the survivors' arguments that the release (1) is void in
that it impermissibly settles workers' compensation claims, or alternatively, applies only to products-liability
claims, and not to claims of premises or employer liability; and (2) is unenforceable because it is the result of
unilateral mistake, is unconscionable, or otherwise violates public policy.  Because the survivors' exemplary-
damages and loss-of-consortium claims are encompassed within the release, we affirm the trial court's
judgment.

I.  Factual and Procedural Background

After working as a pipefitter for more than thirty-seven years, Homer Ross developed an asbestos-related
disease from his workplace exposure.  In 1989, Ross and his wife Marjorie sued twenty-two asbestos
manufacturers, alleging that Homer “is suffering from an asbestos-related disease and his future outlook is
very dim.  He has sought the services of physicians in an effort to cure or arrest the condition from which he
is suffering, but to no avail."  They asserted Homer's claim for personal injury and Marjorie's claim for loss of
consortium under theories of strict liability, negligence, gross negligence, intentional conduct, and breach of
warranty.  In 1993, both Homer and Marjorie reached a settlement with the Center for Claims Resolution
(“CCR"), a nonprofit corporation formed by twenty-one companies to act as the companies' agent in
asbestos litigation.  Homer's former employer Union Carbide Corporation (“Union Carbide"), which was then
known as Union Carbide Chemicals & Plastics Co., Inc., was a member of the CCR.  Although Union Carbide
was not a defendant in the suit, it was a party to the settlement and release (the “Release").

The Release provides in pertinent part as follows:

WHEREAS, Homer G. Ross and Marjorie Ross have agreed to settle and compromise their claim and cause
of action asserted and which could be asserted in said suit, including, but not limited to, each and every
cause of action for loss of consortium, personal injury, medical expenses, . . . and any future claim for
alleged wrongful death under the statutes and laws of the State of Texas;

WHEREAS, . . . the Releasees and the Releasors desire to enter into a final compromise and settlement of
any and all claims which they have or may hereafter have against the Releasees, for injuries to Homer G.
Ross, and any claim for injuries to Marjorie Ross, including loss of consortium, mental anguish, or the future
death of Homer G. Ross, arising directly or indirectly from such injuries, disease or death.

NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS:

THAT WE, Homer G. Ross and Marjorie Ross, . . . joined by our attorney, hereby fully and finally RELEASE,
ACQUIT and FOREVER DISCHARGE the Releasees from any and all claims, demands, causes of action of
whatsoever nature or character which we may now have or hereafter have against the Releasees, including .
. . damages, punitive and exemplary damages, loss of consortium, damages under Wrongful Death and
Survival Statutes, Worker's Compensation liens . . . in any manner arising out of, or in any way connected
with, directly or indirectly, the exposure or occurrences of injuries, disease, illness or death of Homer G.
Ross, above described, as well as any consequence thereof, as well as any cause of action sustained or to
be sustained by Marjorie Ross.

This Release shall be construed as broadly as possible with regard to the alleged injuries of Homer G. Ross
and shall include, but not be limited to, asbestosis, mesothelioma, cancer and any disease of the body that
could now or in the future be alleged to be related to the exposure of Homer G. Ross to asbestos-containing
products of any of the Releasees. . . .

We intend this Release to be as broad and comprehensive as possible so that the Releasees shall never be
liable, directly or indirectly, to us or our beneficiaries, heirs, successors or assigns, or any person . . .
claiming by, through, under or on behalf of us or them, for any claims, demands, actions or causes of action
of whatsoever nature or character arising out of any illness[,] disease or death of Homer G. Ross or
damages to Marjorie Ross in any way connected with the use of or exposure to various materials and
products manufactured, sold or distributed by the Releasees. . . .

The Releasors expressly contract that no claim or cause of action of any type is reserved against any
Releasees.  If any other claims exist against the Releasees, whether directly or indirectly, whether released
herein or not, whether foreseeable or unforeseeable, the Releasors hereby assign those claims in full to the
Releasees. . . .

In consideration for the payment of the aforesaid sum, Homer G. Ross and Marjorie Ross, for themselves,
their beneficiaries and heirs and on behalf of their successors and assigns[,] agree to indemnify and hold
harmless the Releasees from any further payment of damages, debts, liens, charges and/or expenses of any
character incurred by or on behalf of the Releasees as a result of any further claim by Homer G. Ross and
spouse, Marjorie Ross, or their representatives, heirs, or assigns.  Homer G. Ross and Marjorie Ross[]
further agree to indemnify and hold harmless the Releasees from any and all liability for the payment of
damages by reason of any claims asserted by any person . . . as a result of any claim . . . made by or to
Homer G. Ross and spouse, Marjorie Ross, or their representatives, heirs, or assigns, arising out of any
illness of Homer G. Ross and damages claimed or asserted by Marjorie Ross, and the potential claim for the
wrongful death of Homer G. Ross in any way connected with the use of or exposure to various materials and
products manufactured, sold or distributed by the Releasees. . . . .

It is the intent and purpose of this agreement that at no time will the Releasees be called upon to pay any
further sum or incur any further expense by reason of any fact, matter or claim, directly or indirectly, . . .
arising out of or predicated upon any claim, demand, judgment or payment made by or to Homer G. Ross or
Marjorie Ross, their beneficiaries, successors, heirs or assigns, arising out of the injuries to, disease of, or
death of Homer G. Ross. . . .

[T]his agreement is and may be asserted by the Releasees as an absolute and final bar to any claim or
proceeding now pending or hereafter brought. . . .

By our signatures below we represent that we understand this Full and Final Release and Indemnity
Agreement constitutes a final and complete release of all claims regardless of their kind or character,
including any possible claim which might be discovered in the future.

Homer died in 2001, and two years later, his wife and children brought an exemplary- damages claim against
Union Carbide,[1] alleging that Homer's asbestos-related death was caused by Union Carbide's wilful act,
omission, or gross neglect in exposing Homer to asbestos in the workplace.  They specified they brought this
claim pursuant to article XVI, section 26 of the Texas Constitution and the Workers' Compensation Act, Texas
Labor Code section 408.001(b).  Marjorie also raised a claim for loss of consortium.  Relying on the
affirmative defense of release, Union Carbide successfully moved for traditional summary judgment on all
claims, and this appeal timely ensued.

II.  Issues Presented

In their first three issues, appellants contend the trial court erred in granting summary judgment because
Homer could not have validly assigned, settled, or released their claims arising from his death.   In their
fourth issue, appellants argue that a fact issue regarding unilateral mistake precluded summary judgment.

III.  Standard of Review

We review summary judgments de novo.  Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.
2005).  In a traditional summary-judgment motion, the movant has the burden of showing that there is no
genuine issue of material fact and it is entitled to judgment as a matter of law.  Tex. R. Civ. P. 166a(c); Am.
Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997).  A defendant must conclusively negate at least
one essential element of each of the plaintiff's causes of action or conclusively establish each element of an
affirmative defense.  Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).  Evidence is
conclusive only if reasonable people could not differ in their conclusions.  City of Keller v. Wilson, 168 S.W.
3d 802, 816 (Tex. 2005).  Once the defendant establishes its right to summary judgment as a matter of law,
the burden shifts to the plaintiff to present evidence raising a genuine issue of material fact.   City of Houston
v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex. 1979).

We apply a de novo standard of review to the interpretation of our state constitution[2] and consider such
factors as the language of the provision, its purpose, its application in prior judicial decisions, and the
historical context in which it was written.  See Tesco Am., Inc. v. Strong Indus., Inc., 221 S.W.3d 550, 554 n.
15 (Tex. 2006).  We likewise review questions of statutory construction de novo to ascertain and give effect
to the legislature's intent as expressed by the plain meaning of the words it chose to use.  Entergy Gulf
States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009); F.F.P. Operating Partners, L.P. v. Duenez, 237 S.
W.3d 680, 683 (Tex. 2007).

IV.  Analysis

To clarify appellants' arguments, we first provide the legal context for their claims.  Under the terms of the
Wrongful Death Act, an individual's surviving spouse, children, and parents may sue for actual damages
arising from an injury that results in the individual's death.  Tex. Civ. Prac. & Rem. Code Ann. §§ 71.002,
71.004 (Vernon 2008).   If the death was caused by a wilful act or omission or gross negligence, exemplary
damages as well as actual damages may be recovered.  Id. § 71.009.  

Claims made under the Wrongful Death Act are entirely derivative and thus may be brought only if the
injured individual would have been entitled to bring an action for the injury if he had lived.   Id. § 71.003(a); In
re Labatt Food Serv., L.P., 279 S.W.3d 640, 646 (Tex. 2009) (“While it is true that damages for a wrongful[-]
death action are for the exclusive benefit of the beneficiaries and are meant to compensate them for their
own personal loss, the cause of action is still entirely derivative of the decedent's rights."); Russell v.
Ingersoll-Rand Co., 841 S.W.2d 343, 345 (Tex. 1992).

Appellants filed suit against Union Carbide for exemplary damages, alleging that the company's intentional,
knowing, or reckless acts or omissions in regularly exposing Homer to respirable asbestos fibers without
providing respiratory protection or advising him of the health risks caused the injuries that resulted in
Homer's death.  But the Release executed by Homer and Marjorie Ross broadly covers all claims and
damages against Union Carbide, including those under the Wrongful Death Act.  Thus, the Release bars
appellants' claims unless the claims are properly asserted on some basis other than the Wrongful Death Act.  
Appellants expressly deny that their claims are brought pursuant to the Wrongful Death Act, and instead
contend that specific provisions of the Texas Constitution and the Workers' Compensation Act, alone or in
combination, create an exemplary-damages cause of action that is both independent of the Wrongful Death
Act and nonderivative of Homer's rights.

Appellants first rely on article XVI, section 26 of the Texas Constitution, which provides as follows:

Every person, corporation, or company, that may commit a homicide, through wilful act, or omission, or gross
neglect, shall be responsible, in exemplary damages, to the surviving husband, widow, heirs of his or her
body, or such of them as there may be, without regard to any criminal proceeding that may or may not be
had in relation to the homicide.

They next point out that although the recovery of workers' compensation benefits is the exclusive remedy for
the death or work-related injury of an employee covered by the Workers' Compensation Act, the Act  “does
not prohibit the recovery of exemplary damages by the surviving spouse or heirs of the body of a deceased
employee whose death was caused by an intentional act or omission of the employer or by the employer's
gross negligence."  See Tex. Lab. Code Ann. § 408.001(b) (Vernon 2006).   Appellants contend that these
provisions, either separately or together, allow them to recover exemplary damages based on Union
Carbide's grossly negligent or intentional acts or omissions that caused the injuries that led to Homer's
death.  They argue that the Release does not cover their claims arising from Homer's death because such
claims did not accrue until after his death and never belonged to Homer.  They further reason that Homer
could not settle and thereby “sell" the claims because “one cannot sell what one does not own."   Specifically,
appellants argue in their first and third issues that the trial court erred in granting summary judgment based
on the Release because Homer could not release his survivors' exemplary-damages claim under article XVI,
section 26 of the Texas Constitution or section 408.001(b) of the Workers' Compensation Act.[3]

A.        No Independent Exemplary-Damages Claim Under the Texas Constitution or Workers'
Compensation Act

In construing a state constitutional provision, “the fundamental guiding rule is to give effect to the intent of
the makers and adopters of the provision in question."  Harris County Hosp. Dist. v. Tomball Reg'l Hosp., 283
S.W.3d 838, 842 (Tex. 2009).  And because any such provision is “construed in the light of the conditions
existing at the time of adoption," its meaning “is fixed when it is adopted, and it is not different at any
subsequent time."  Cramer v. Sheppard, 140 Tex. 271, 285, 167 S.W.2d 147, 154 (1942) (orig. proceeding).

Here, our analysis of article XVI, section 26 of the Texas Constitution is made easier because our highest
court already has analyzed and explained, in a unanimous decision, this section's purpose:

[T]he reason for adoption of the constitutional provision was to allow for exemplary damages under the
Wrongful Death Act because of an early interpretation that such damages were not authorized by the Act. . .
.  It did not abrogate the common law requirement of actual damages and extend the remedy to those with no
cause of action under the [Wrongful Death] Act.

Travelers Indem. Co. of Ill. v. Fuller, 892 S.W.2d 848, 851B52 (Tex. 1995).[4]  Thus, Fuller makes clear that
a claim for exemplary damages under article XVI, section 26 is asserted through the Wrongful Death Act, not
separately from it.  Consequently, “a decedent's pre-death contract may limit or totally bar a subsequent
action" by his wrongful-death beneficiaries.  See Labatt Food Serv., 279 S.W.3d at 644 (citing Sullivan-
Sanford Lumber Co. v. Watson, 106 Tex. 4, 155 S.W. 179, 180 (Tex. 1913)).  If, during his lifetime, the
decedent released the tortfeasor from further liability, then his survivors' subsequent wrongful-death claims
are barred.  Thompson v. Fort Worth & R.G. Ry., 97 Tex. 590, 80 S.W. 990, 991 (1904).  Therefore,
because the Release broadly discharged Union Carbide from liability (specifically including liability for
exemplary damages and wrongful death), and  a claim for exemplary damages under article XVI, section 26 is
a derivative cause of action that may be asserted only through the Wrongful Death Act, appellants' claim for
exemplary damages under the Texas Constitution is barred by the Release.  See Labatt Food Serv., 279 S.
W.3d at 646 (explaining that wrongful-death beneficiaries “stand in [the decedent's] legal shoes and are
bound by his agreement").

Appellants' argument that the Workers' Compensation Act creates an independent, nonderivative cause of
action is similarly unpersuasive.  In interpreting a statute, our goal is to ascertain the legislature's intent by
examining the statute's plain language.  City of DeSoto v. White, 52 Tex. Sup. Ct. J. 893, 2009 WL 1712796,
at *4 (Tex. June 19, 2009).  Because the words chosen by the legislature “should be the surest guide to
legislative intent," the text is determinative unless enforcement of the statute's plain language would produce
absurd results.  Entergy Gulf States, Inc. v. Summers, 282 S.W.3d at 437.  And contrary to appellants'
contention, section 408.001(b) of the Workers' Compensation Act does not purport to create an independent
cause of action, but instead identifies an exception to the Act's exclusivity provision.  See Tex. Lab. Code
Ann. § 408.001(b) (“This section does not prohibit the recovery of exemplary damages by the surviving
spouse or heirs of the body of a deceased employee whose death was caused by an intentional act or
omission of the employer or by the employer's gross negligence.") (emphasis added).  Stated differently,
section 408.001(a) explains what the Workers' Compensation Act does - i.e., it provides an exclusive remedy
for covered employees and their beneficiaries, substituting the right to statutory benefits for  the right to
recover actual damages from the worker's employer - and section 408.001(b) explains what the Act does not
do - i.e., it does not prohibit certain of a covered employee's survivors from recovering exemplary damages
from an employer who caused the employee's death through its intentional act or omission or its gross
negligence.  Compare id. § 408.001(a) with id. § 408.001(b).  The text of section 408.001(b) is unambiguous,
and reading the statute in accordance with its plain language would not produce absurd results.[5]  We
therefore conclude that section 408.001(b) of the Workers' Compensation Act does not create a
nonderivative cause of action for exemplary damages independent of the Wrongful Death Act.

1.         Perez Overruled

Although appellants cite several cases in support of their argument that the Texas Constitution and the
Workers' Compensation Act create an independent, nonderivative cause of action, we find these authorities
unpersuasive or inapplicable and therefore decline to follow them.  Chief among the authorities on which
appellants rely is this court's prior decision in  Perez v. Todd Shipyards Corp.

In Perez, a deceased employee's children and personal representative sued the worker's employer for gross
negligence in allegedly causing the employee's death from asbestos exposure.  999 S.W.2d at 32.  The
employer filed a bankruptcy petition in 1987, and the plan was confirmed in 1990.  Id.  While the bankruptcy
action was pending, the employee was diagnosed with a benign asbestos-related pleural disease.  Id.  In
1992, the employee was diagnosed with metastatic mesothelioma and died three months later.  Id.

His employer argued that the children's claims were derivative of the employee's claims, which were barred
by the employer's previously-obtained discharge in bankruptcy.  Id.  We rejected that argument on the
grounds that the children's claims were not brought under the Wrongful Death Act, but instead were brought
pursuant to article XVI, section 26 of the Texas Constitution and section 408.001(b) of the Workers'
Compensation Act.  We concluded that the children did not present “a derivative action arising from any
rights that may have been possessed by the decedent" because “[t]he cause of action provided to the
surviving family under the Texas Constitution and the Labor Code is not an action that could have been
brought by the deceased."  Id. at 33.

Although this is the same argument presented by appellants, we cannot agree with their contention that
Perez accurately represents the settled law in this district applicable to the issues before us.  Simply stated,
the reasoning in Perez cannot be reconciled with that of the previously-discussed decisions of the Texas
Supreme Court.  See, e.g., Fuller, 892 S.W.2d at 851B52; Russell, 841 S.W.2d at 345B47; Sullivan-Sanford
Lumber Co., 155 S.W. at 180; Thompson, 80 S.W. at 992.[6]  In Perez, we neither followed nor distinguished
Fuller, Russell, Sullivan-Sanford Lumber Co., or Thompson,[7] and because Perez is contrary to the
reasoning of prior as well as subsequent decisions of the Texas Supreme Court and of this court,[8] it has
been a source of unnecessary confusion.[9]

In sum, Perez presents an unsupported and unsustainable departure from precedent.  To obtain uniformity
among this court's decisions and reduce further confusion, we therefore overrule Perez.  See Tex. R. App. P.
41.2(c) (authorizing en banc consideration of a case when necessary to secure uniformity of the court's
decisions).

2.         Sbrusch Rejected
      
Appellants also point to some federal cases containing language suggesting that the Worker's Compensation
Act created an independent cause of action for exemplary damages.  See, e.g., Sbrusch v. Dow Chem. Co.,
124 F. Supp. 2d 1090, 1092 (S.D. Tex. 2000); Castillo v. Angelo Iafrate Constr., L.L.C., No. Civ.A.
303CV0061L, 2003 WL 22287637, at *3-4 (N.D. Tex. Sept. 30, 2003) (not reported) (following Sbrusch).[10]  
We are not obligated to follow these decisions in the same way that we are obligated to follow the precedent
of our State's highest courts and the United States Supreme Court.  See Penrod Drilling Corp. v. Williams,
868 S.W.2d 294, 296 (Tex. 1993) (per curiam).  Morever, we do not consider the Sbrusch court's reasoning
persuasive.

The Sbrusch court analyzed the Texas Supreme Court's opinion in Wright v. Gifford-Hill & Co., 725 S.W.2d
712, 713 (Tex. 1987), and concluded that “Wright supports the view that the Texas Supreme Court, if
confronted with the issue directly, would hold that section 408.001 creates an independent cause of action
for exemplary damages based on wrongful death, as opposed to merely saving a pre-existing cause of
action."  Sbrusch, 124 F. Supp. 2d at 1092. The issue addressed in Wright was whether a claimant who was
entitled to workers' compensation benefits was precluded from recovering exemplary damages in the
absence of a jury finding on the amount of actual damages sustained as a result of the worker's death.  
Wright, 725 S.W.2d at 713-14. The Texas Supreme Court rejected the argument, noting that “[t]he plaintiff in
a workers' compensation case cannot recover actual damages. . . .  Therefore, it is a waste of the jury's time
and efforts to require a finding of an amount of actual damages in such a case."  Wright, 725 S.W.2d at 714.  
The court did not hold that section 408.001(b) creates an independent cause of action for exemplary
damages, and as previously discussed, such an interpretation is inconsistent with the statute's unambiguous
text.

Contrary to the authorities cited by appellants, precedent and plain language dictate the conclusion that
neither article XVI, section 26 of the Texas Constitution nor section 408.001(b) of the Workers'
Compensation Act, alone or in conjunction with one another, creates a nonderivative cause of action that
may be asserted independently from the Wrongful Death Act.  Because claims under the Wrongful Death Act
are derivative of the injured person's claim and Homer released Union Carbide from liability for gross
negligence,

exemplary damages, or his future death, appellants' claim for exemplary damages is barred by the Release.   
We therefore overrule appellants' first and third issues.[11]

B.        Release Is Not Void

Because of the derivative nature of their claims, wrongful-death beneficiaries are generally bound by the
injured family member's contract releasing the alleged tortfeasor from liability.    See Labatt Food Serv., 279
S.W.3d at 644.  But settlements of claims for workers' compensation benefits are governed by the Workers'
Compensation Act, which requires the parties to obtain the workers' compensation commissioner's approval
of such agreements.  See Tex. Lab. Code Ann. § 408.005.   Absent approval, a workers' compensation
claimant “cannot settle his claim by accepting a payment of money and signing a common-law release."  
Starnes v. Tex. Employers' Ins. Ass'n, 549 S.W.2d 46, 47 (Tex. Civ. App.-Dallas 1977, writ ref'd n.r.e.).  

To the contrary, with exceptions inapplicable here, “an agreement by an employee to waive the employee's
right to compensation is void."  Tex. Lab. Code Ann. § 406.035.  Appellants therefore contend in their
second issue that if the Release waived all claims arising from Homer's asbestos exposure, then it also
impermissibly waived any right to workers' compensation benefits.  Because the Release contains no
severability clause, appellants further argue that the inclusion of the unlawful provision voids the entire
agreement.  In the alternative, appellants assert that the Release addresses only products-liability claims,
and not claims of employer or premises liability.  Appellants argue that as  a result of such defects, the
Release does not bar their claim for exemplary damages or Marjorie's claim for loss of consortium.
      
But even assuming that the Release encompasses claims for workers' compensation benefits in violation of
section 406.035 of the Labor Code,[12] the absence of a severability clause does not necessarily void the
entire agreement.  Severability is determined by the intent of the parties as evidenced by the language in the
contract.  In re Kasschau, 11 S.W.3d 305, 313 (Tex. App.-Houston [14th Dist.] 1999, orig. proceeding) (op.
on reh'g).  Generally, an illegal or unconscionable contract provision may be severed if it does not constitute
the essential purpose of the agreement.  In re Poly-America, L.P., 262 S.W.3d 337, 360 (Tex. 2008); see
also Hoover Slovacek LLP v. Walton, 206 S.W.3d 557, 565 (Tex. 2006) (explaining that if a contract or term
“'is unconscionable at the time the contract is made a court may refuse to enforce the contract, or may
enforce the remainder of the contract without the unconscionable term, or may so limit the application of any
unconscionable term as to avoid any unconscionable result'" (quoting Restatement (Second) of Contracts §
208 (1981))). “The issue is whether the parties would have entered into the agreement absent the illegal
parts."  Kasschau, 11 S.W.3d at 313.  Therefore, the court “must determine the central and essential
purpose of the settlement agreement."  Id.

Here, the central and essential purpose of the Release is to resolve any claim that has been or could be
asserted against the members of the CRC based on Homer's personal injury or death from asbestos
exposure.  Although the Release expressly includes any claim by his survivors for exemplary damages or
loss of consortium, claims for workers' compensation benefits are not mentioned.  Consequently, such claims
are included in the Release only if we construe the contract's terms to include them.  See Lewis v. Davis, 145
Tex. 468, 472, 199 S.W.2d 146, 149 (1947) (“[W]here the illegality does not appear on the face of the
contract it will not be held void unless the facts showing its illegality are before the court.").  But because the
purpose of the legal system is to combat unlawfulness, not promote it, we cannot construe a contract to
impose or enforce an illegal obligation.  Cayan v. Cayan, 38 S.W.3d 161, 166 n.8 (Tex. App.-Houston [14th
Dist.] 2000, pet. denied).  When two constructions of a contract are possible, we must apply the one that
does not result in a violation of law.  Lewis, 145 Tex. at 472-73, 199 S.W.2d at 149.  We therefore conclude
that the parties intended the release to be as broad and comprehensive as the law allows, but not more so.

Moreover, even if the Release encompasses the right to workers' compensation benefits, an invalid release
and assignment of workers' compensation claims can be severed from the remainder without doing violence
to the parties' agreement to waive the claims specifically referenced therein, including claims for products
liability, loss of consortium, wrongful death, and exemplary damages.  See Keck, Mahin & Cate v. Nat'l Union
Fire Ins. Co. of Pittsburgh, 20 S.W.3d 692, 697-98 (Tex. 2000) (holding that a broad-form release of “'all
demands, claims or causes of action of any kind whatsoever'" validly released “unknown claims and damages
that develop in the future"); Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 938 (Tex. 1991) (analyzing
a more narrowly-tailored release and stating that “the releasing instrument must 'mention' the claim to be
released").  Finally, there is no evidence that the parties would have declined to execute a Release that did
not dispose of claims for statutory workers' compensation benefits.[13]    Cf. Kassachu, 11 S.W.3d at 313.

In support of their alternative argument that Homer and Marjorie Ross settled only products-liability claims,
appellants point to language in the Release referring to “materials and products manufactured, sold or
distributed by the Releasees," overlooking other provisions in which the Rosses released the members of the
CRC “from any and all claims, demands, causes of action of whatsoever nature or character which we may
now have or hereafter have . . . arising out of, or in any way connected with, directly or indirectly, the
exposure or occurrences of injuries, disease, illness or death of Homer G. Ross."  And because we must
presume that the parties to a contract intended every clause to have some effect, we cannot selectively grant
controlling effect to the individual provisions appellants cite.  See rePipe, Inc. v. Turpin, 275 S.W.3d 39, 44
(Tex. App.-Houston [14th Dist.] 2008, no pet.) (citing Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118,
121 (Tex. 1996)).  Instead, we examine the entire contract and harmonize its provisions so that none are
rendered meaningless. Id. (citing J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003)).  If the
parties have entered into an unambiguous writing, we will enforce the parties' intentions as expressed in the
contract, and because “it is objective, not subjective, intent that controls," the writing alone ordinarily is
sufficient to express the parties' intentions.  Matagorda County Hosp. Dist. v. Burwell, 189 S.W.3d 738, 740
(Tex. 2006) (per curiam).

As illustrated by the provisions of the Release excerpted in Section I of this opinion, the parties to the
Release expressly and repeatedly stated their intent to settle any and all of the Ross family's present or
future claims arising from Homer's injuries or death, including Marjorie Ross's claim for loss of consortium.  In
addition to reciting categories of waived claims, the parties also stated their intentions in broad but general
terms:

It is the intent and purpose of this agreement that at no time will the Releasees be called upon to pay any
further sum or incur any further expense by reason of any fact, matter or claim, directly or indirectly, . . .
arising out of or predicated upon any claim, demand, judgment or payment made by or to Homer G. Ross or
Marjorie Ross, their beneficiaries, successors, heirs or assigns, arising out of the injuries to, disease of, or
death of Homer G. Ross. . . .
As an added safeguard of finality, Homer and Marjorie Ross assigned to Union Carbide and the other
Releasees any other claims that they or their heirs could assert in connection with Homer's injury or death.

Viewing the contract as a whole, we do not agree that the Release is void or its scope limited as appellants
suggest.  We therefore overrule appellants' second issue.

C.        Unilateral Mistake

In their fourth issue, appellants argue that the trial court erred in granting summary judgment in favor of
Union Carbide regarding their exemplary-damages claim and Marjorie's loss-of-consortium claim because
there is a question of fact as to whether appellants are entitled to the equitable remedy of rescission under
the doctrine of unilateral mistake.  Relief from a unilateral mistake is available “when the conditions of
remediable mistake are present."  James T. Taylor & Son, Inc. v. Arlington Indep. Sch. Dist., 160 Tex. 617,
620, 335 S.W.2d 371, 372-73 (Tex. 1960).  As the Texas Supreme Court further explained,

These conditions generally are: (1) the mistake is of so great a consequence that to enforce the contract as
made would be unconscionable; (2) the mistake relates to a material feature of the contract; (3) the mistake
was made regardless of the exercise of ordinary care; and (4) the parties can be placed in status quo in the
equity sense, i. e., rescission must not result in prejudice to the other party except for the loss of his bargain.

Id.  Appellants contend that Homer and Marjorie Ross “exercised ordinary care before signing the agreement
and still made a material mistake"; however, the only evidence produced in support of this contention was
Marjorie's affidavit.

Although appellants contend that the affidavit raises a fact issue concerning the availability of equitable
relief, the affidavit simply contains assertions that (1) Homer never worked for Union Carbide Chemicals &
Plastics Co., Inc.; (2) A[i]t was not revealed" to the Rosses at that time that any party to the Release was
liable to them “for anything other than manufacturing, selling, or distributing an asbestos[-]containing
product"; (3) when Homer and Marjorie executed the Release, they “had no understanding"of who Union
Carbide Chemicals & Plastics Co., Inc. was; and (4) the Rosses would not have entered into the agreement if
they had known that Homer's employer was one of the released parties.

In effect, the affidavit addresses only the knowledge that the Rosses possessed without taking any steps to
identify the current legal name of Homer's prior employer or the identity of Union Carbide Chemicals &
Plastics Co., Inc.  But the Rosses were represented by counsel, and their attorney was a signatory to the
Release, in which the Rosses acknowledged that they relied not only upon their own knowledge and
information, but also upon their attorney's advice regarding their legal rights and the liability of the released
parties.  The Rosses' attorney further certified that he had “fully explained to them the legal effect thereof
and after such explanation they were fully satisfied to release their claims."  Nevertheless, Marjorie's affidavit
fails to address the summary-judgment evidence that, according to publicly-available records, Union Carbide
changed its name to Union Carbide Chemicals & Plastics Co., Inc. in 1989, and changed its name back to
Union Carbide Corporation in 1994.  And although his employer's legal name was Union Carbide Corporation
at the time Homer retired in 1984, the company was named Union Carbide Chemicals & Plastics Co., Inc.
when the Release was executed in 1993.

Appellants also argue that it  would be unconscionable to enforce the contract because Union Carbide did
not contribute to the settlement.  Under the terms of the contract, however, the entities who are released
from liability include Union Carbide and its parent, subsidiary, predecessor, and successor corporations; its
insurance carriers; and its present, former, and subsequent officers, directors, attorneys, agents, servants,
and employees.  The Rosses acknowledged the receipt and sufficiency of the consideration they received,
and nothing in the Release required the settlement to be funded by any particular entity or limited the right of
any party to enforce the Release.  Appellants have not cited, and we have not found, any authority for
implying such restrictions.  They also state that Union Carbide would not be prejudiced by the rescission of
the Release because the parties would be “placed in the status quo in the equity sense"; however,
appellants do not contend that rescission would fail to prejudice the many other companies whose potential
liability was extinguished by the Release.

We conclude that appellants have failed to raise a legal or factual issue regarding the availability of equitable
relief, and we overrule their fourth issue.

V.  Conclusion

Homer and Marjorie Ross, acting for themselves and on behalf of their heirs, reached a final settlement and
release for the express purpose of reducing the time, expense, and uncertainty of litigation, and appellants
are bound by that decision.  Because the trial court correctly concluded that Union Carbide established its
right to judgment as a matter of law on the affirmative defense of release and appellants failed to raise a
legal or factual issue concerning their assertion of unilateral mistake, we affirm the trial court's judgment.

/s/        
Eva M. Guzman

Justice

En banc court consists of Chief Justice Hedges; Justices Yates, Anderson, Frost, Seymore, Guzman, Brown,
and Sullivan; and Senior Justice Price.*  (Frost, J. and Price, S.J., concurring).  (Boyce, J., not participating).

[1]  Although Homer's estate and two dozen other defendants were originally parties to this action, all claims
were non-suited with the exception of the claims of Homer's wife and children against Union Carbide.

[2]  See Perry v. Del Rio, 67 S.W.3d 85, 91 (Tex. 2001).

[3]  Or, as appellants frame the issues, that such a claim could not be sold to the employer by the injured
employee.

[4]  See also id. at 850 (explaining that when the Republic of Texas adopted the common law, there was no
common law cause of action for wrongful death); Morrow v. Corbin, 122 Tex. 553, 564, 62 S.W.2d 641, 647
(1933) (explaining that the Texas Constitution “is to be interpreted in the light of the common law").

[5]  Appellants do not contend otherwise.

[6]  As the higher court has pointed out, A[i]t is not the function of a court of appeals to abrogate or modify
established precedent." Lubbock County, Tex. v. Trammel's Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex.
2002).

[7]We also note that the holdings of the authorities cited in Perez do not support its reasoning.  See Perez,
999 S.W.2d at 33 (citing Smith v. Atl. Richfield Co., 927 S.W.2d 85, 87 (Tex. App.-Houston [1st Dist.]  1996,
writ denied), Universal Servs. Co. v. Ung, 904 S.W.2d 638, 639-40 (Tex. 1995), and Texaco, Inc. v.
Sanderson, 898 S.W.2d 813, 814 (Tex. 1995) (orig. proceeding) (per curiam)).  In Smith v. Atlantic Richfield
Co., the family members of a deceased worker challenged the summary judgment granted in the employers'
favor on their exemplary-damages claim.  923 S.W.2d at 87.  The employers argued that Smith could not
have sued for his injuries had he survived because his exclusive remedy was workers' compensation
benefits, and because Smith could not sue for actual damages, his family had no cause of action for
exemplary damages.  Id.  But as Smith's family correctly pointed out, its cause of action was permitted by
section 408.001(b) of the Workers' Compensation Act.  Id.  Smith's employers conceded that this provision
would have saved a state constitutional cause of action, but pointed out Fuller “explicitly extinguished" any
independent cause of action under article XVI, section 26.  Id.  This argument, however, appears to have
been a red herring, for the Smith opinion contains no indication the family pursued its claim under the Texas
Constitution rather than the Wrongful Death Act.  To the contrary, the court not only acknowledged the
family's position that its claim was permitted by section 408.001(b) of the Labor Code, id. at 87-88, but
expressly noted that the family relied on Texaco, Inc. v. Sanderson and Universal Services Co. v. Ung in
support of their position.  Id. at 88 (citing Sanderson, 898 S.W.2d at 814, and Ung, 904 S.W.2d at 639B40).  
Significantly, neither Sanderson nor Ung contains any mention of the Texas Constitution whatsoever.

[8]  See, e.g., Suber v. Ohio Med. Prods., Inc., 811 S.W.2d 646 (Tex. App.-Houston [14th Dist.] 1991, writ
denied) (en banc).  In Suber, a plaintiff asserted a design-defect claim and recovered a judgment for her
personal injuries.  Id. at 648.  After her death, her surviving spouse, children, and mother sued the same
defendants for the decedent's wrongful death, and the trial court granted summary judgment in favor of the
defendants.  Id.  On appeal, the survivors challenged the judgment on the ground, inter alia, that article XVI,
section 26 of the Texas Constitution guarantees gross-negligence wrongful-death beneficiaries a cause of
action for exemplary damages, regardless of whether the injured person recovered damages for her injuries
during her lifetime.  See id. at 651.  We explained our rejection of this argument as follows:

Although this section provides for exemplary damages upon a finding of gross negligence, it is inapplicable
where an award of actual damages is unsupportable.  Because appellants are barred from bringing a
wrongful[-]death action in the instant case, there can be no recovery of actual damages, and thus, no
recovery of exemplary damages.  Consequently, this constitutional provision is inapplicable.

Id. (citation omitted).  Notably, our decision in Suber was cited with approval by the Texas Supreme Court in  
Fuller for the proposition that article XVI, section 26 “did not change the common law actual damages
requirement."  Fuller, 892 S.W.2d at 851 n.3.

Only a month after deciding Perez, we made no mention of it when following contrary reasoning in Frias v.
Atlantic Richfield Co.   999 S.W.2d 97, 103 (Tex. App.-Houston [14th Dist.] 1999, pet. denied).  Contrary to
appellants' characterization, our decision in Frias did not address the derivative nature of the plaintiffs' claims
or the date on which their claims accrued.  Moreover, we did not hold that family members have an
independent cause of action under the Texas Constitution; to the contrary, we quoted the Texas Supreme
Court's statement in Fuller that article XVI, section 26 “guarantees the remedy of punitive damages . . . when
a wrongful[-]death beneficiary otherwise possesses a cause of action for compensatory relief . . . ."  Id. at
103 (quoting Fuller, 892 S.W.2d at 893) (emphasis added).

[9]  See, e.g., Zacharie v. U.S. Natural Res., Inc., 94 S.W.3d 748, 756-57 (Tex. App.-San Antonio 2002, no
pet.) (citing Perez as authority for the existence of an independent, nonderivative cause of action for gross
negligence under the Texas Constitution and the Workers' Compensation Act); Crowder v. Am. Eagle
Airlines, Inc., 118 F. App'x 833, 841-42 & n.41 (5th Cir. 2004) (per curiam, not for publication) (same);
Castillo v. Angelo Iafrate Constr., L.L.C., No. Civ.A. 303CV0061L, 2003 WL 22287637, at *3 (N.D. Tex. Sept.
30, 2003) (not reported) (same).

[10]  But see Wyble v. E.I. Dupont de Nemours & Co., 17 F. Supp. 2d 641, 644-46 (E.D. Tex.1998)
(repeatedly referring to language in the Texas Workers' Compensation Act exempting exemplary-damage
gross-negligence suits by certain survivors of deceased workers from the exclusivity rule as a “savings
clause"); Callis v. Union Carbide Chem. & Plastics Corp., 932 F. Supp. 168, 170-71 (S.D. Tex. 1996) (“While
the Workers' Compensation Act generally provides the exclusive remedy for work-related injuries, it does not
prohibit the recovery of exemplary damages under the Wrongful Death Act for gross negligence resulting in
death.").

[11]  We do not imply that a deceased worker's survivors could not maintain an action against the worker's
employer if the worker had released only third parties; here, however, the employer was among those
released from liability.

[12]  Section 406.035 of the Texas Labor Code applies only to subscribing employers.  See Martinez v. IBP,
Inc., 961 S.W.2d 678, 682 (Tex. App.-Amarillo 1998, pet. denied).  The parties, however, cite no evidence
regarding Union Carbide's status as a subscriber.  Appellants did not assert in their pleadings at trial or in
their statement of facts on appeal that Union Carbide was a workers' compensation subscriber.  Cf. Tex. R.
App. P. 38.1(g) (“In a civil case, the court will accept as true the facts stated unless another party contradicts
them.").  In the argument section of their brief, however, appellants state that “[a]s Union Carbide was a
subscriber employer, the only claims Mr. and Mrs. Ross have ever held against Union Carbide, be it now or in
1993, are/were workers' compensation remedies."  Inasmuch as virtually all of appellants' arguments are
based on the assumption that Union Carbide is a workers' compensation subscriber and Union Carbide does
not appear to have addressed that premise, either at trial or on appeal, we assume without deciding that
Union Carbide's status as a subscribing employer is undisputed.

[13]  There is no evidence that Homer or appellants have ever asserted a claim for workers' compensation
benefits in connection with his asbestos-related injuries or death.

*  Senior Justice Frank C. Price sitting by assignment.