Preview
Filed: 8/27/2015 3:25:47 PM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 6685569
By: Shailja Dixit
8/27/2015 3:28:13 PM
CAUSE NO. 15-CV-0643
JESSE WHITTINGTON AND § IN THE DISTRICT COURT
SANDY WHITTINGTON
Plaintiff,
vs. § GALVESTON COUNTY, TEXAS
TONY'S USED CARS, INC.,
Defendant. § 405TH JUDICIAL DISTRICT
DEFENDANT'S EVIDENTIARY MOTION FOR PARTIAL SUMMARY JUDGMENT
COMES NOW, Tony's Used Cars, Inc., Defendant in the above-entitled and numbered
cause, files this its Evidentiary Motion for Partial Summary Judgment, and would respectfully
show the following:
I.
GROUNDS FOR GRANTING MOTION FOR PARTIAL SUMMARY JUDGMENT
*Jesse Wayne Whittington's claims for injuries sustained from a January 20, 2015
incident are barred by virtue of the execution of a Settlement Agreement and Release;
*The settlement agreement complies with requirements set out in §406.033 (f) & (g) in
that Release language was bold, underlined and included in the title of the document; in
fact, the entirety of the agreement was a settlement agreement release — rather than a
paragraph included in other separation of employment terms; and
*Tony's Used Cars, Inc. should be entitled to common law defenses since Jesse Wayne
Whittington acted as a independent contractor on the occasion.
II
FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGEMENT
In this regard, Tony's Used Cars owns and operates a retail automobile dealership. Tony's
Used Cars would purchase vehicles from dealership auctions which often need mechanical
repairs prior to their sale to the Tony's Used Cars retail customer. Tony's Used Cars already had
a mechanic and even its own repair equipment — including a lift.
Jesse Wayne Whittington is an automobile mechanic, and Jesse Wayne Whittington
approached Tony's Used Cars and agreed to offer his services in November of 2013. Jesse
Whittington agreed to work on a flat-rate basis of $350.00 per week. Jesse Wayne Whittington
set his own hours and did not have to account to anyone concerning the methods of his work. Mr.
Whittington provided his own tools. He acknowledged that he worked as an independent
contractor and accepted the contracted amount by checks which reflect that no deductions were
taken out for taxes.
On or about January 20, 2015, Jesse Wayne Whittington suffered an injury which took
place at the Tony's Used Cars lot. In this regard, Jesse Wayne Whittington was working under a
vehicle which was supported by a jack (and not on the lift belonging to Tony's Used Cars) when
the car slipped while Mr. Whittington was underneath the vehicle.
Although not obligated to do so, Tony's Used Cars paid Mr. Whittington the contracted
amount for three or four weeks while Mr. Whittington was recovery. In addition, Tony's Used
Cars likewise paid some pharmacy charges and medical expenses. After the incident, Jesse
Wayne Whittington acknowledged, on multiple occasions, that the January 20, 2015 incident was
solely and proximately caused by his own negligence for being under the vehicle when the
vehicle was being raised/lowered by the jack and/or for not using a car lift.
On or about March 7, 2015, Jesse Whittington executed a Settlement and Release of all
claims. The Settlement Agreement was reached as compromise of a disputed claim. Tony's Used
Cars paid the sum of $500.00 in exchange for the release. The Settlement and Release was
executed after Jesse Whittington had full opportunity (three hours) to read and review the
document. The settlement was consummated at a Chase bank location and notarized.
SUMMARY JUDGMENT EVIDENCE
Tony's Used Cars, Inc.'s Motion for Summary Judgment is supported by the following
summary judgement evidence, which is attached hereto and incorporated herein by reference:
EXHIBIT A: Tony Romany's Affidavit in Support of Motion for Summary Judgment
EXHIBIT B: Settlement Agreement and Release
EXHIBIT C: Checks
SUMMARY JUDGMENT STANDARD
Summary Judgment is appropriate where no genuine issue exists for any material
fact and the movant is entitled to judgment as a matter of law. Tex. Civ. P. 166a(c); KPMG
Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). The issue
in a summary judgment proceeding is whether there is a genuine issue of material fact. Gaines v.
Hamman, 358 S.W.2d 557 (Tex. 1962). The question is not whether the summary judgment
proof raises fact issues with reference to the essential elements of plaintiffs claim or cause of
action, but whether the summary judgment proof establishes, as a matter of law, that there is no
genuine issue of fact as to one or more of the essential elements of the plaintiffs cause of action.
Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970); Walton v. Harnischfeger
d/b/a P & H Crane, 796 S.W.2d 225 (Tex. App).
In the present case, even when the facts are viewed in the light most favorable to
the non-moving party, Tony's Used Cars, Inc. is entitled to summary judgment because (1) the
summary judgment evidence conclusively establishes that Plaintiff cannot prove all elements of
its cause of action against Tony's Used Cars, Inc.; and/or (2) Plaintiff has no evidence to prove
each and every essential element of its causes of action. For these reasons, Tony's Used Cars,
Inc. is entitled to summary judgment.
IV.
ARGUMENTS AND AUTHORITIES
A. The settlement agreement and release bars plaintiffs claims for injuries.
A valid release agreement is a complete bar to any action based on matters covered in the
release. Lopez v. The Garbage Man, Inc., 2011 WL 1259523 (Tex.App.—Tyler 2011, no pet.)
(mem. op.).The releasing instrument effectively releases a claim when the claim is mentioned in
the release or is clearly within the subject matter of the release. Id. at *7. A valid release could
bar "unknown claims and damages that develop in the future." Id. at *7. Like any agreement, a
release is subject to the rules of construction governing contracts. Williams v. Glash, 789 S.W.2d
261, 264 (Tex.1990). When construing a contract, courts must give effect to the true intentions of
the parties as expressed in the written instrument. Lenape Res. Corp. v. Tennessee Gas Pipeline
Co., 925 S.W.2d 565, 574 (Tex.1996). The contract must be read as a whole rather than by
isolating a certain phrase, sentence of section of the agreement. State Farm Life Ins. Co. v.
Beaston, 907 S.W.2d 430, 433 (Tex.1995).
In the case at hand, summary judgment evidence supports that Whittington signed the
agreement and that his negligence-based claims related to the January 20, 2015 incident are
within the subject matter of the released claims. When the agreement is read as a whole, the true
intention of the parties as is clear. The overarching purpose of the parties, through this written
instrument, is to "settle and resolve with regard to any claims that Jesse Wayne Whittington may
have against Tony's Used Cars Inc. and their employees, agents, affiliates, and owners, arising
from an accident and/or injury occurring on or about January 20, 2015." Ex. B,1, '111; Ex. B, 2, if
1.0 Release and Discharge. Such a provision is not hidden in an obscure paragraph in the written
instrument, but is repeatedly emphasized throughout the document, and is even contained in the
title itself. Moreover, the agreement specifically says that once Whittington agrees to and signs
the settlement agreement, which he did, Whittington is precluded from bringing future litigation
against Tony's Used Cars, Inc. Ex. B, 1, ¶ 2; Ex. B, 3, ¶ 2.0 Indemnity.
A person who signs a contract is "held to have known what words were used in the
contract and to have known their meaning, and [is] held to have known and fully comprehended
the legal effect of the contract." Lopez, 2011 WL 1259523 at *8 (holding that not even illiteracy
is a valid defense, and will not relieve a party of the consequences of the contract"). In his
Original Petition, Whittington alleges that he signed the agreement only because Defendant
falsely induced him to do so. This directly conflicts with what Whittington declared in giving his
signature to the release. By signing the release, Whittingon declared that he had done so "wholly
upon his own volition, individual judgment, belief and knowledge, and that this Agreement is
made without reliance upon any statement or representation of any other party or any other
person." Ex. B,1,11 3; Ex. B, 5, ¶ 7.1. Whittington's notarized signature at the end of this
document evidences his acknowledgment of and consent to each part of the document that he
signed. In interpreting a contract, courts "must presume that the parties thereto intended every
clause to have some effect." Lopez, 2011 WL 1259523 at *10. Even if oral promises were made
to Plaintiff as he now contends, as per the agreement Whittington had given his signature out of
his own volition and judgment, in spite of what may have allegedly been said or promised to him.
For Whittington to now claim otherwise is a fraudulent and deceptive practice, and puts him in
breach of contract.
B. The settlement agreement complies with requirements set out in the Labor Code.
An employee is at liberty to waive both the right to sue in tort and an employer's workers'
compensation coverage without the waiver becoming "void and unenforceable." Espinoza v.
Cargill Meat Solutions Corp., 622 F.3d 432, 2010 U.S. App. LEXIS 20544, 31 I.E.R. Cas.
(BNA) 596, 189 L.R.R.M. (BNA) 2353, 160 Lab. Cas. (CCH) P10315 (5th Cir. Tex. 2010).
In Jesse Whittington's Original Petition, he judicially admits executing the Settlement
Agreement and Release. Jesse Whittington alleges that the waiver that he signed did not satisfy
the requirements for such release as contemplated by §406.033(0(1) of the Texas Labor Code.
That statute provides that employees' release of claims must meet the following criteria:
(1) the employee voluntarily enters into the waiver with knowledge of the waiver's effect;
(2) the waiver is entered into not earlier than the 10th business day after the date of the
initial report of injury;
(3) the employee, before signing the waiver, has received a medical evaluation from a
nonemergency care doctor;
(4) the waiver is in a writing under which the true intent of the parties is specifically
stated in the document;
(5) The waiver provisions must be conspicuous and appear on the face of the agreement.
To be conspicuous, the waiver provisions must appear in a type larger than the type
contained in the body of the agreement or in contrasting colors.
As will be clear in this motion for summary judgement, the executed settlement
agreement comports with the requirements of §406.033(0(l) of the Texas Labor Code as a
matter of law. As such, Tony's Used Cars is entitled to a summary disposition of this action with
respect to claims brought by Jesse Whittington.
In Gunn vs. Baptist, the Court of Appeals for Amarillo considered whether the employee
waived her rights to sue Baptist St. Anthony's Health Network for her job-related injury. The trial
court granted the employer's motion for summary judgment predicated on its affirmative defense
of release. In the Gunn case, the nurse reported the incident on February 4 and executed a one-
page document which was entitled BSA 's Occupational Injury Benefit Program Acceptance and
Waiver. The Court found that the employee waived her right to sue by signing the document
which contained release language:
WAIVER: In exchange for my enrollment and election to participate in the program: I
HEREBY VOLUNTARILY RELEASE, WAIVE, AND FOREVER GIVE UP ALL MY
RIGHTS, CLAIMS AND CAUSES OF ACTION, WHETHER NOW EXISTING OR
ARISING IN THE FUTURE THAT I MAY HAVE AGAINST [BSA] THAT ARISE
OUT OF OR ARE IN ANY WAY RELATED TO INJURIES (INCLUDING A
SUBSEQUENT OR RESULTING DEATH) THAT I HAVE SUSTAINED IN THE
COURSE AND SCOPE OF MY EMPLOYMENT WITH BSA.
See, Gunn v. Baptist, 405 S.W.3d 239, (Tex. App. Amarillo 2013).
The Tyler Court of Appeals addressed § 406.033(0(1) in Lopez v. Garbage Man, Inc.,
No. 12-08-00384-CV, 2011 Tex.App. LEXIS 2342 (Tex.App.—Tyler March 31, 2011, no pet.)
(released for publication). Specifically addressing the "knowledge of its effect" requirement of §
406.033(0(1), the court applied the presumption that one "who signs a contract must be held to
have known what words were used in the contract and to have known their meaning, and he must
be held to have known and fully comprehended the legal effect of the contract." Thus, absent
evidence of "trick or artifice," the signer is presumed as a matter of law to have read and
understood the contract. See, also, (Tamez v. SW Motor Transp. Inc., 155 S.W.3d 564, 570
(Tex.App.—San Antonio, no pet.)).
Whether a provision meets a conspicuousness requirement is a question of law,
determined in this case by the § 406.033(g) definition. See Cate v. Dover Corp., 790 S.W.2d 559,
560 (Tex. 1990) (applying, as question of law, Business & Commerce Code definition to
disclaimer of warranty).
It is difficult to conjure a document which tracts more with the statutory requirements
than the one actually executed by the Plaintiff in this case. In the first place, the entirety of the
document is clearly labeled "Settlement and Release." Aside from being the style of the
document, the warning is in all capital letters and underscored.
The Recitals make clear that the entire purpose of executing the document was
"understood intent, purpose, and desire of Jesse Wayne Whittington to hereby release, relinquish,
and forever discharge Tony's Used Cars ... of any of his claims."
As per paragraph 2, the Settlement Agreement and Release forewarns the Plaintiff in a
plain heading entitled "Release and Discharge" that he would "release and forever discharge and
acquit Tony's Used Cars, Inc and Romani Tony, as well as from any and all claims,
demands, actions and causes of action of any and every character, known" Also, the Settlement
Agreement specifically spells out that the release applied to "(Jesse Wayne Whittngton's accident
and injury occurring on or about January 20, 2015)."
Thus, the release language was repeated throughout the document. This is not the sort of
situation in which the employer buries the release in and amongst other language to divert the
signor's attention from the point of the document. Here, the release is abundantly clear, given rise
to undisputed fact that the release was knowingly and volitional.
Other cases have found all capital letters to be conspicuous in comparable contexts. See
e.g. Amtech Elevator Servs. Co. v. CSFB 1998-PI Buffalo Speedway Office Ltd. Piship, 248
S.W.3d 373, 377-78 (Tex.App.—Houston [1st Dist.] 2007, no pet.) (finding capitalized heading
with following language in all capital letters attracts the attention of a reasonable person and is
thus conspicuous).
There is no question that the waiver was executed later than the 10 th business day after the
incident. Given that the release complies with the requirements set out in the Labor Code, Tony's
Used Cars is entitled to partial summary judgment, disposing of all of the claims brought by
Jesse Whittington.
C. Jesse Wayne Whittington was not an employee of Tony's Used Cars.
In order to hold an employer liable for injuries caused a third party by an employee, the
plaintiff must establish an employer-employee relationship. Brentwood Financial Corp. v.
Lamprecht, 736 S.W.2d 836, 845 (Tex. App.--San Antonio 1987, writ refd n.r.e.); see
Newspapers, Inc. v. Love, 380 S.W.2d 582, 589 (Tex. 1964). To determine whether such a
relationship exists, the plaintiff must prove the employer had the right to control the details of the
employee's work. See id. Every person found performing the work of another is presumed to be
in the employment of the person whose work is being done. Taylor, B. & H. Ry. Co. v. Warner,
32 S.W. 868, 870 (1895); Hoechst Celanese Corp. v. Compton, 899 S.W.2d 215, 219 (Tex.
App.--Houston [14th Dist.] 1994, writ denied). Once the presumption is raised, the burden of
proof shifts and the defendant has the burden to escape liability by establishing that the worker
was an independent contractor. Hoechst Celanese, 899 S.W.2d at 219. The fact that one
employer pays the salary of the worker does not establish that the worker is not an employee of
another. Kachmar v. Stewart Title Co., 477 S.W.2d 306, 310 (Tex. Civ. App.--Houston [14th
Dist.] 1972, no writ).
The test to determine whether a worker is an employee or an independent contractor is
whether the employer has the right to control the progress, details, and methods of operations of
the employee's work. Thompson v. Travelers Indem. Co., 789 S.W.2d 277, 278 (Tex. 1990). This
same test applies regardless of whether the claim arises at common law or under workers'
compensation. Thompson, 789 S.W.2d at 278; Elder v. Aetna Casualty & Sur. Co., 236 S.W.2d
611, 613 (1951). The employer must control not merely the end sought to be accomplished, but
also the means and details of its accomplishment as well. Thompson, 789 S.W.2d at 278. When
there is no dispute about the controlling facts, and there is only one reasonable conclusion that
can be inferred from such facts, the question whether a person is an employee or an independent
contractor is one of law, not of fact. See Indus. Indem. Exch. v. Southard, 138 Tex. 531, 534,
160 S.W.2d 905, 906 (Tex. 1942) (stating rule in context of worker's compensation case).
Courts generally analyze five factors in determining the amount of control retained by the
employer: (1) the independent nature of the worker's business; (2) the obligation to furnish the
necessary tools, supplies, and materials to perform the job; (3) the right to control the progress of
the work except as to final results; (4) the time for which the worker is employed; and (5)
whether the worker is paid by the time or by the job. Hoechst Celanese, 899 S.W.2d at 220
(citing Pitchfork Land & Cattle Co. v. King, 162 Tex. 331, 346 S.W.2d 598, 603 (1961)).
Examples of the type of control normally exercised by an employer include when and where to
begin and stop work, the regularity of hours, the amount of time spent on particular aspects of the
work, the tools and appliances used to perform the work, and the physical method or manner of
accomplishing the end result. Thompson v. Travelers Indem. Co., 789 S.W.2d 277, 278-9 (Tex.
1990).
The summary judgment record makes clear that Jesse Whittington was not an employee
of the dealership in that he performed mechanical services on a flat-rate basis, with his own tools
and without answering to anyone concerning the details of his work. Accordingly, Tony's Used
Cars is entitled to summary of any job-related claim.
Respectfully submitted,
/s/ J. Nathan Overstreet
James Nathan Overstreet
SBN: 00784706
J. Nathan Overstreet & Assoc., P.C.
8711 Hwy 6 N., Suite #230
Houston, Texas 77095
(281) 855-1000
Fax (281) 855-4580
Attorneys for Defendant
Tony's Used Cars, Inc.
CAUSE NO. 15-CV-0643
JESSE WHITTINGTON AND § IN THE DISTRICT COURT
SANDY WHITTINGTON §
Plaintiff, §
§
vs. § GALVESTON COUNTY, TEXAS
§
TONY'S USED CARS, INC., §
Defendant. § 405TH JUDICIAL DISTRICT
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument Tony's Used
Cars, Inc.'s Evidentiary Motion for Partial Summary Judgment has been sent pursuant to Rule
21a of the Texas Rules of Civil Procedure by U.S. First Class Certified Mail, Return Receipt
Requested, Electronically, or through Facsimile Transmission on this the 19 th day of July, 2015,
to all counsel of record.
Joshua Estes
James Magers
1708 Thompson Road
Richmond, Texas 77469
(281) 238-5400
fax (281) 238-9964
joshuaEstes@EstesPC.net
/s/ J. Nathan Overstreet
James Nathan Overstreet
CAUSE NO. I 5-CV-0643
JESSE WHITTINGTON AND § IN THE DISTRICT COURT
SANDY WHITTINGTON §
Plaintiff, §
§
vs. § GALVESTON COUNTY, TEXAS
§
TONY'S USED CARS, INC., §
Defendant. § 405TH JUDICIAL DISTRICT
AFFIDAVIT IN SUPPORT OF EVIDENTIARY
MOTION FOR SUMMARY JUDGMENT
BEFORE ME, the undersigned notary, did personally appear Romany W. Tony, who
upon his oath did say as follows:
"My name is Romany W. Tony. I am an officer of Tony's Used Cars, Inc. I am over the
age of eighteen and am otherwise fully competent to make this affidavit. I have never been
convicted of a felony. The matters contained in this affidavit are all within my personal
knowledge and are true and correct.
Tony's Used Cars owns and operates a retail automobile dealership. Tony's
Used Cars would purchase vehicles from dealership auctions which often need mechanical
repairs prior to their sale to the Tony's Used Cars retail customer. Tony's Used Cars already had
a mechanic and even its own repair equipment — including a lift — prior to the time that Jesse
Whittington agreed to repair the dealer's cars.
Jesse Wayne Whittington is an automobile mechanic, and Jesse Wayne Whittington
approached Tony's Used Cars and agreed to offer his services in November of 2013. Jesse
Whittington agreed to work on a flat-rate basis of $350.00 per week. Jesse Wayne Whittington
set his own hours and did not have to account to anyone concerning the methods of his work. Mr.
Whittington provided his own tools. He acknowledged that he worked as an independent
contractor and accepted the contracted amount by checks which reflect that no deductions were
taken out for taxes.
On or about January 20, 2015, Jesse Wayne Whittington suffered an injury which took
place at the Tony's Used Cars lot. In this regard, Jesse Wayne Whittington was working under a
vehicle which was supported by a jack (and not on the lift belonging to Tony's Used Cars) when
the car slipped while Mr. Whittington was underneath the vehicle.
DEFENDANT'S
EXHIBIT
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After the incident, Jesse Wayne Whittington acknowledged, on multiple occasions, that
the January 20, 2015 incident was solely and proximately caused by his own negligence for being
under the vehicle when the vehicle was being raised/lowered by the jack and/or for not using a
car lift.
On or about March 7, 2015, Jesse Whittington executed a Settlement and Release of all
claims. The Settlement Agreement was reached as compromise of a disputed claim. Tony's Used
Cars paid the sum of $500.00 in exchange for the release. The Settlement and Release was
executed after Jesse Whittington had full opportunity (three hours) to read and review the
document. The settlement was consummated at a Chase bank location and notarized.
I am the custodian of Business Records, records for the following entity: Tony's Used
Cars, Inc. Attached hereto is a true and correct copy of the Settlement Agreement and Release
and some checks written to the Plaintiff These records are business records of the dealership.
These records are kept in the regular course of business at this office, for an employee, or
representative with personal representative with personal knowledge of the act, event or
condition recorded to make the memorandum or record to transmit information thereof to be
included in such memorandum or record; and the memorandum or record was made at or near
the time of the act, event or condition recorded reasonably soon thereafter. The records attached
hereto are exact duplicates of the original, and it is a rule to not permit the original records to
leave the premises.
FURTHER AFFIANT sayeth not.
RomanyM7f,W. V ony
SUBSCRMED TO AND SWORN TO on this the • da of 4A AIJ,
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SETTLEMENT AGREEMENT AND RELEASE
WHEREAS, it is the desire of Jesse Wayne Whittington and Tony's Used Cars Inc. to settle
and resolve with regard to any claims that Jesse Wayne Whittington may have against Tony's Used
Cars Inc. and their employees, agents, affiliates, and owners, arising from an accident and/or injury
occurring on or about January 20, 2015 while working on the premises owned by Tony's Used Cars
Inc. located at 2801 Texas Avenue La Marque, Tx 77568.
WHEREAS, it is understood by Jesse Wayne Whittington and Tony's Used Cars Inc.
that this Agreement is only for the purpose of settlement and compromise of claims; that
any action taken pursuant to this Agreement is not to be construed or considered as an
admission of liability or fault on the part of Tony's Used Cars Inc.; that Tony's Used Cars
Inc. denies liability on any and all claims that have been asserted or could be asserted
against Tony's Used Cars Inc. by Jesse Wayne Whittington: and that this Agreement is
entered into merely to settle and terminate any outstanding issues and/or claims between
the parties , and to avoid and preclude future litigation; and
WHEREAS, Jesse Wayne Whittington further declares and represents he is
executing this Agreement wholly upon his own volition, individual judgment, belief and
knowledge, and that this Agreement is made without reliance upon any statement or
representation of any other party or any other person, and further declares and represents
that no promise, inducement, or agreement not herein expressed has been made to him,
and that this Agreement reflects the entire agreement and understanding between Jesse
Wayne Whittington and Tony's Used Cars Inc. and that the terms of this Agreement are
contractual and not a mere recital; and
DEFENDANT'S
EXHIBIT
3
WHEREAS, it is the expressly understood intent, purpose, and desire of Jesse
Wayne Whittington to hereby release, relinquish, and forever discharge Tony's Used Cars
Inc., as well as any and all of their servants, agents, employees, owners, predecessors,
successors, assigns and affiliated of and from any and all claims, demands, actions and
causes of action of any and every kind and character, known or unknown, that Jesse Wayne
Whittington may now have against any of them for bodily injury, property damage,
employment or labor related damages or any other damages arising out of or related to the
work Jesse Wayne Whittington was performing on the premises owned by Tony's Used
Cars Inc.
NOW, THEREFORE, in consideration of the payment to Jesse Wayne Whittington
by Tony's Used Cars, Inc., in the sum of FIVE HUNDRED DOLLARS ($500.00), already
paid, the receipt and sufficiency of which is hereby acknowledged by Jesse Wayne
Whittington, it is hereby stipulated and agreed as follows:
1.0 Release and Discharge
Jesse Wayne Whittington for himself and his heirs, legal representatives and
assigns, does hereby release and forever discharge and acquit Tony's Used Cars Inc. and
Romani Tony, as well as any and all of their servants, agents, employees, employers,
partners, insurance carriers, predecessors, successors, assigns, parents, subsidiaries,
owners, and affiliates (hereinafter collectively referred to as the "Releasees"), from any and
all claims, demands, actions and causes of action of any and every character, known or
unknown, that Jesse Wayne Whittington has ever had and/or may ever have against any of
them arising out of or connected with the events and claims referenced in this Agreement
(Jesse Wayne Whittington's accident and injury occurring on or about January 20, 2015),
2
and from any and all claims and causes of action that have been or could have been
asserted. This release specifically includes all claims, past, present or future, known or
unknown, against the Releasees, whether based on tort, contract, statute or any other
theory of recovery, for damages, relief or remedy of any sort, arising out of or relating in any
way to arising from the accident injury of January 20, 2015 while working for and/or on the
premises owned by Tony's Used Cars Inc; and/or (2) any and all injuries, medical expenses,
property damage, lost income, loss of earning capacity, pain and suffering, mental anguish,
physical impairment, loss of consortium, loss of enjoyment of life, lost business
opportunities, or other damages of any sort, past, present or future, resulting from the
Incident.
2.0 Indemnity
It is the purpose and intention of Jesse Wayne Whittington and the Releasees herein
that the Releasees shall not, either directly or indirectly, under any device, form of action or
proceeding, present or future, be liable for or required to make any further payment of any
monies in any way arising out of or resulting from the injury Jesse Wayne Whittington
sustained on or about January 20, 2015 on the premises owned by Tony's Used Cars Inc.
Therefore, in further consideration of the payments described above, Jesse Wayne
Whittington agrees to indemnify and hold harmless the Releasees herein of and from any
and all claims, suits, debts, liens, causes of action, demands, cross-actions, or third-party
actions, now pending or that may hereafter be asserted by any party claiming by, through
or under the Jesse Wayne Whittington, including without limitation, claims for any lien,
quantum meruit claims, or any other claims made on any theory whatsoever, regardless of
whether said claims arise in whole or in part from the negligence, negligence per se, gross
3
negligence, willful and wanton conduct, and/or intentional conduct of any of the Releasees.
In this regard, it is agreed and acknowledged by the parties hereto that this Indemnity
Agreement meets the "express negligence" test, including "conspicuousness," set forth
under Texas Common Law.
3.0 Warranty of Capacity to Execute Agreement
Jesse Wayne Whittington expressly warrants and represents that he is of sound mind
and is otherwise competent to execute this Agreement; that he is the sole owner of the
claims described herein and any other claims with respect to the subject matter thereof that
could have been brought, known or unknown, past, present or future; that all such claims
are subject to this Agreement; and that only he has the sole right and authority to settle,
compromise, and release such claims and to execute this Agreement. Jesse Wayne
Whittington further warrants and represents that he has not conveyed, assigned or
otherwise transferred to anyone any right, title or interest in any claim described herein.
Jesse Wayne Whittington further agrees to indemnify and hold harmless the Releasees
against any claims based on any such conveyance, assignment or transfer made by him.
4.0 Medical and/or Healthcare Expenses
4.1 Jesse Wayne Whittington expressly warrants that he has paid for, will pay for
and/or will cause to be satisfied, any and all medical and/or healthcare-related expenses
that have been incurred in the past, that are presently due and owing, and/or that are or may
be owed in the future, for treatment or care received as a result of the matters stated herein
and will fully and completely indemnify and hold harmless the Releasees of and from any
and all claims and liens based thereon, including, but not limited to, claims or liens under
the Texas Hospital Lien Law and/or Medicare.
4
4.2 The parties have reasonably considered whether a Medicare Set Aside is
necessary. Jesse Wayne Whittington declares and expressly warrants that he is not
Medicare eligible and all treatment for the alleged injury related to this settlement has been
completed as of the date of this settlement, and that future medical items and/or services
for his injuries will not be required, and therefore, no Medicare Set Aside Allocation is being
made. In the event any of the above information is false or is in any way incorrect, the
undersigned shall be solely liable for any and all actions, causes of action, penalties, claims,
costs, services, compensation or the like resulting from these inaccuracies, and further, the
undersigned acknowledges that Medicare may require him to exhaust the entire settlement
proceeds on Medicare covered expenses should the undersigned become Medicare eligible
within thirty (30) months.
5.0 Compromise
It is hereby expressly understood that this settlement is a compromise of doubtful
and disputed claims, and that the payment described above is not to be construed as an
admission of liability on the part of the Releasees.
6.0 Intentionally blank
7.0 No Representations by Releasees
7.1 In making this agreement of compromise and settlement, Jesse Wayne
Whittington has not relied upon any statement or representation pertaining to this matter
made by the Releasees or persons representing them, or by any person or persons
employed by them.
5
7.2 Jesse Wayne Whittington represents and warrants that the Releasees have
not made any representations to them as to federal income tax consequences, if any, of the
settlement reflected by this Agreement.
8.0 Governing Law
This Agreement shall be construed and interpreted in accordance with the laws of
the State of Texas.
9.0 Additional Documents
All parties agree to cooperate fully and execute any and all supplementary
documents and to take all additional action that may be necessary or appropriate to give full
force and effect to the basic terms and intent of this Agreement.
10.0 Entire Agreement and Successors in Interest
This Agreement contains the entire agreement between Jesse Wayne Whittington
and the Tony's Used Cars Inc. with regard to the matters set forth in it, and shall be binding
upon and inure to the benefit of the executors, administrators, personal representatives,
heirs, successors and assigns of each.
IT IS EXPRESSLY WARRANTED AND UNDERSTOOD that the undersigned has
carefully read the foregoing Agreement and knows the contents thereof, and signed the
same of his own free act.
Dated: 3 1 7 ,2015.
JURAT
6
BEFORE ME, the undersigned authority, on this day personally appeared Jesse
Wayne Whittington, known to me to be the person whose name is subscribed to the
foregoing instrument and acknowledged to me that she executed same in the capacity
stated, and for the purposes and consideration therein expressed.
?GIVEN UNDER MY HAND AND SEAL OF OFFICE, this
kWh 2015.
day of
blic hfand)for the
TEXAS
LAURA SAUCEDO
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Preview
Filed: 8/27/2015 3:25:47 PM JOHN D. KINARD - District Clerk Galveston County, Texas Envelope No. 6685569 By: Shailja Dixit 8/27/2015 3:28:13 PM CAUSE NO. 15-CV-0643 JESSE WHITTINGTON AND § IN THE DISTRICT COURT SANDY WHITTINGTON Plaintiff, vs. § GALVESTON COUNTY, TEXAS TONY'S USED CARS, INC., Defendant. § 405TH JUDICIAL DISTRICT DEFENDANT'S EVIDENTIARY MOTION FOR PARTIAL SUMMARY JUDGMENT COMES NOW, Tony's Used Cars, Inc., Defendant in the above-entitled and numbered cause, files this its Evidentiary Motion for Partial Summary Judgment, and would respectfully show the following: I. GROUNDS FOR GRANTING MOTION FOR PARTIAL SUMMARY JUDGMENT *Jesse Wayne Whittington's claims for injuries sustained from a January 20, 2015 incident are barred by virtue of the execution of a Settlement Agreement and Release; *The settlement agreement complies with requirements set out in §406.033 (f) & (g) in that Release language was bold, underlined and included in the title of the document; in fact, the entirety of the agreement was a settlement agreement release — rather than a paragraph included in other separation of employment terms; and *Tony's Used Cars, Inc. should be entitled to common law defenses since Jesse Wayne Whittington acted as a independent contractor on the occasion. II FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGEMENT In this regard, Tony's Used Cars owns and operates a retail automobile dealership. Tony's Used Cars would purchase vehicles from dealership auctions which often need mechanical repairs prior to their sale to the Tony's Used Cars retail customer. Tony's Used Cars already had a mechanic and even its own repair equipment — including a lift. Jesse Wayne Whittington is an automobile mechanic, and Jesse Wayne Whittington approached Tony's Used Cars and agreed to offer his services in November of 2013. Jesse Whittington agreed to work on a flat-rate basis of $350.00 per week. Jesse Wayne Whittington set his own hours and did not have to account to anyone concerning the methods of his work. Mr. Whittington provided his own tools. He acknowledged that he worked as an independent contractor and accepted the contracted amount by checks which reflect that no deductions were taken out for taxes. On or about January 20, 2015, Jesse Wayne Whittington suffered an injury which took place at the Tony's Used Cars lot. In this regard, Jesse Wayne Whittington was working under a vehicle which was supported by a jack (and not on the lift belonging to Tony's Used Cars) when the car slipped while Mr. Whittington was underneath the vehicle. Although not obligated to do so, Tony's Used Cars paid Mr. Whittington the contracted amount for three or four weeks while Mr. Whittington was recovery. In addition, Tony's Used Cars likewise paid some pharmacy charges and medical expenses. After the incident, Jesse Wayne Whittington acknowledged, on multiple occasions, that the January 20, 2015 incident was solely and proximately caused by his own negligence for being under the vehicle when the vehicle was being raised/lowered by the jack and/or for not using a car lift. On or about March 7, 2015, Jesse Whittington executed a Settlement and Release of all claims. The Settlement Agreement was reached as compromise of a disputed claim. Tony's Used Cars paid the sum of $500.00 in exchange for the release. The Settlement and Release was executed after Jesse Whittington had full opportunity (three hours) to read and review the document. The settlement was consummated at a Chase bank location and notarized. SUMMARY JUDGMENT EVIDENCE Tony's Used Cars, Inc.'s Motion for Summary Judgment is supported by the following summary judgement evidence, which is attached hereto and incorporated herein by reference: EXHIBIT A: Tony Romany's Affidavit in Support of Motion for Summary Judgment EXHIBIT B: Settlement Agreement and Release EXHIBIT C: Checks SUMMARY JUDGMENT STANDARD Summary Judgment is appropriate where no genuine issue exists for any material fact and the movant is entitled to judgment as a matter of law. Tex. Civ. P. 166a(c); KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). The issue in a summary judgment proceeding is whether there is a genuine issue of material fact. Gaines v. Hamman, 358 S.W.2d 557 (Tex. 1962). The question is not whether the summary judgment proof raises fact issues with reference to the essential elements of plaintiffs claim or cause of action, but whether the summary judgment proof establishes, as a matter of law, that there is no genuine issue of fact as to one or more of the essential elements of the plaintiffs cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970); Walton v. Harnischfeger d/b/a P & H Crane, 796 S.W.2d 225 (Tex. App). In the present case, even when the facts are viewed in the light most favorable to the non-moving party, Tony's Used Cars, Inc. is entitled to summary judgment because (1) the summary judgment evidence conclusively establishes that Plaintiff cannot prove all elements of its cause of action against Tony's Used Cars, Inc.; and/or (2) Plaintiff has no evidence to prove each and every essential element of its causes of action. For these reasons, Tony's Used Cars, Inc. is entitled to summary judgment. IV. ARGUMENTS AND AUTHORITIES A. The settlement agreement and release bars plaintiffs claims for injuries. A valid release agreement is a complete bar to any action based on matters covered in the release. Lopez v. The Garbage Man, Inc., 2011 WL 1259523 (Tex.App.—Tyler 2011, no pet.) (mem. op.).The releasing instrument effectively releases a claim when the claim is mentioned in the release or is clearly within the subject matter of the release. Id. at *7. A valid release could bar "unknown claims and damages that develop in the future." Id. at *7. Like any agreement, a release is subject to the rules of construction governing contracts. Williams v. Glash, 789 S.W.2d 261, 264 (Tex.1990). When construing a contract, courts must give effect to the true intentions of the parties as expressed in the written instrument. Lenape Res. Corp. v. Tennessee Gas Pipeline Co., 925 S.W.2d 565, 574 (Tex.1996). The contract must be read as a whole rather than by isolating a certain phrase, sentence of section of the agreement. State Farm Life Ins. Co. v. Beaston, 907 S.W.2d 430, 433 (Tex.1995). In the case at hand, summary judgment evidence supports that Whittington signed the agreement and that his negligence-based claims related to the January 20, 2015 incident are within the subject matter of the released claims. When the agreement is read as a whole, the true intention of the parties as is clear. The overarching purpose of the parties, through this written instrument, is to "settle and resolve with regard to any claims that Jesse Wayne Whittington may have against Tony's Used Cars Inc. and their employees, agents, affiliates, and owners, arising from an accident and/or injury occurring on or about January 20, 2015." Ex. B,1, '111; Ex. B, 2, if 1.0 Release and Discharge. Such a provision is not hidden in an obscure paragraph in the written instrument, but is repeatedly emphasized throughout the document, and is even contained in the title itself. Moreover, the agreement specifically says that once Whittington agrees to and signs the settlement agreement, which he did, Whittington is precluded from bringing future litigation against Tony's Used Cars, Inc. Ex. B, 1, ¶ 2; Ex. B, 3, ¶ 2.0 Indemnity. A person who signs a contract is "held to have known what words were used in the contract and to have known their meaning, and [is] held to have known and fully comprehended the legal effect of the contract." Lopez, 2011 WL 1259523 at *8 (holding that not even illiteracy is a valid defense, and will not relieve a party of the consequences of the contract"). In his Original Petition, Whittington alleges that he signed the agreement only because Defendant falsely induced him to do so. This directly conflicts with what Whittington declared in giving his signature to the release. By signing the release, Whittingon declared that he had done so "wholly upon his own volition, individual judgment, belief and knowledge, and that this Agreement is made without reliance upon any statement or representation of any other party or any other person." Ex. B,1,11 3; Ex. B, 5, ¶ 7.1. Whittington's notarized signature at the end of this document evidences his acknowledgment of and consent to each part of the document that he signed. In interpreting a contract, courts "must presume that the parties thereto intended every clause to have some effect." Lopez, 2011 WL 1259523 at *10. Even if oral promises were made to Plaintiff as he now contends, as per the agreement Whittington had given his signature out of his own volition and judgment, in spite of what may have allegedly been said or promised to him. For Whittington to now claim otherwise is a fraudulent and deceptive practice, and puts him in breach of contract. B. The settlement agreement complies with requirements set out in the Labor Code. An employee is at liberty to waive both the right to sue in tort and an employer's workers' compensation coverage without the waiver becoming "void and unenforceable." Espinoza v. Cargill Meat Solutions Corp., 622 F.3d 432, 2010 U.S. App. LEXIS 20544, 31 I.E.R. Cas. (BNA) 596, 189 L.R.R.M. (BNA) 2353, 160 Lab. Cas. (CCH) P10315 (5th Cir. Tex. 2010). In Jesse Whittington's Original Petition, he judicially admits executing the Settlement Agreement and Release. Jesse Whittington alleges that the waiver that he signed did not satisfy the requirements for such release as contemplated by §406.033(0(1) of the Texas Labor Code. That statute provides that employees' release of claims must meet the following criteria: (1) the employee voluntarily enters into the waiver with knowledge of the waiver's effect; (2) the waiver is entered into not earlier than the 10th business day after the date of the initial report of injury; (3) the employee, before signing the waiver, has received a medical evaluation from a nonemergency care doctor; (4) the waiver is in a writing under which the true intent of the parties is specifically stated in the document; (5) The waiver provisions must be conspicuous and appear on the face of the agreement. To be conspicuous, the waiver provisions must appear in a type larger than the type contained in the body of the agreement or in contrasting colors. As will be clear in this motion for summary judgement, the executed settlement agreement comports with the requirements of §406.033(0(l) of the Texas Labor Code as a matter of law. As such, Tony's Used Cars is entitled to a summary disposition of this action with respect to claims brought by Jesse Whittington. In Gunn vs. Baptist, the Court of Appeals for Amarillo considered whether the employee waived her rights to sue Baptist St. Anthony's Health Network for her job-related injury. The trial court granted the employer's motion for summary judgment predicated on its affirmative defense of release. In the Gunn case, the nurse reported the incident on February 4 and executed a one- page document which was entitled BSA 's Occupational Injury Benefit Program Acceptance and Waiver. The Court found that the employee waived her right to sue by signing the document which contained release language: WAIVER: In exchange for my enrollment and election to participate in the program: I HEREBY VOLUNTARILY RELEASE, WAIVE, AND FOREVER GIVE UP ALL MY RIGHTS, CLAIMS AND CAUSES OF ACTION, WHETHER NOW EXISTING OR ARISING IN THE FUTURE THAT I MAY HAVE AGAINST [BSA] THAT ARISE OUT OF OR ARE IN ANY WAY RELATED TO INJURIES (INCLUDING A SUBSEQUENT OR RESULTING DEATH) THAT I HAVE SUSTAINED IN THE COURSE AND SCOPE OF MY EMPLOYMENT WITH BSA. See, Gunn v. Baptist, 405 S.W.3d 239, (Tex. App. Amarillo 2013). The Tyler Court of Appeals addressed § 406.033(0(1) in Lopez v. Garbage Man, Inc., No. 12-08-00384-CV, 2011 Tex.App. LEXIS 2342 (Tex.App.—Tyler March 31, 2011, no pet.) (released for publication). Specifically addressing the "knowledge of its effect" requirement of § 406.033(0(1), the court applied the presumption that one "who signs a contract must be held to have known what words were used in the contract and to have known their meaning, and he must be held to have known and fully comprehended the legal effect of the contract." Thus, absent evidence of "trick or artifice," the signer is presumed as a matter of law to have read and understood the contract. See, also, (Tamez v. SW Motor Transp. Inc., 155 S.W.3d 564, 570 (Tex.App.—San Antonio, no pet.)). Whether a provision meets a conspicuousness requirement is a question of law, determined in this case by the § 406.033(g) definition. See Cate v. Dover Corp., 790 S.W.2d 559, 560 (Tex. 1990) (applying, as question of law, Business & Commerce Code definition to disclaimer of warranty). It is difficult to conjure a document which tracts more with the statutory requirements than the one actually executed by the Plaintiff in this case. In the first place, the entirety of the document is clearly labeled "Settlement and Release." Aside from being the style of the document, the warning is in all capital letters and underscored. The Recitals make clear that the entire purpose of executing the document was "understood intent, purpose, and desire of Jesse Wayne Whittington to hereby release, relinquish, and forever discharge Tony's Used Cars ... of any of his claims." As per paragraph 2, the Settlement Agreement and Release forewarns the Plaintiff in a plain heading entitled "Release and Discharge" that he would "release and forever discharge and acquit Tony's Used Cars, Inc and Romani Tony, as well as from any and all claims, demands, actions and causes of action of any and every character, known" Also, the Settlement Agreement specifically spells out that the release applied to "(Jesse Wayne Whittngton's accident and injury occurring on or about January 20, 2015)." Thus, the release language was repeated throughout the document. This is not the sort of situation in which the employer buries the release in and amongst other language to divert the signor's attention from the point of the document. Here, the release is abundantly clear, given rise to undisputed fact that the release was knowingly and volitional. Other cases have found all capital letters to be conspicuous in comparable contexts. See e.g. Amtech Elevator Servs. Co. v. CSFB 1998-PI Buffalo Speedway Office Ltd. Piship, 248 S.W.3d 373, 377-78 (Tex.App.—Houston [1st Dist.] 2007, no pet.) (finding capitalized heading with following language in all capital letters attracts the attention of a reasonable person and is thus conspicuous). There is no question that the waiver was executed later than the 10 th business day after the incident. Given that the release complies with the requirements set out in the Labor Code, Tony's Used Cars is entitled to partial summary judgment, disposing of all of the claims brought by Jesse Whittington. C. Jesse Wayne Whittington was not an employee of Tony's Used Cars. In order to hold an employer liable for injuries caused a third party by an employee, the plaintiff must establish an employer-employee relationship. Brentwood Financial Corp. v. Lamprecht, 736 S.W.2d 836, 845 (Tex. App.--San Antonio 1987, writ refd n.r.e.); see Newspapers, Inc. v. Love, 380 S.W.2d 582, 589 (Tex. 1964). To determine whether such a relationship exists, the plaintiff must prove the employer had the right to control the details of the employee's work. See id. Every person found performing the work of another is presumed to be in the employment of the person whose work is being done. Taylor, B. & H. Ry. Co. v. Warner, 32 S.W. 868, 870 (1895); Hoechst Celanese Corp. v. Compton, 899 S.W.2d 215, 219 (Tex. App.--Houston [14th Dist.] 1994, writ denied). Once the presumption is raised, the burden of proof shifts and the defendant has the burden to escape liability by establishing that the worker was an independent contractor. Hoechst Celanese, 899 S.W.2d at 219. The fact that one employer pays the salary of the worker does not establish that the worker is not an employee of another. Kachmar v. Stewart Title Co., 477 S.W.2d 306, 310 (Tex. Civ. App.--Houston [14th Dist.] 1972, no writ). The test to determine whether a worker is an employee or an independent contractor is whether the employer has the right to control the progress, details, and methods of operations of the employee's work. Thompson v. Travelers Indem. Co., 789 S.W.2d 277, 278 (Tex. 1990). This same test applies regardless of whether the claim arises at common law or under workers' compensation. Thompson, 789 S.W.2d at 278; Elder v. Aetna Casualty & Sur. Co., 236 S.W.2d 611, 613 (1951). The employer must control not merely the end sought to be accomplished, but also the means and details of its accomplishment as well. Thompson, 789 S.W.2d at 278. When there is no dispute about the controlling facts, and there is only one reasonable conclusion that can be inferred from such facts, the question whether a person is an employee or an independent contractor is one of law, not of fact. See Indus. Indem. Exch. v. Southard, 138 Tex. 531, 534, 160 S.W.2d 905, 906 (Tex. 1942) (stating rule in context of worker's compensation case). Courts generally analyze five factors in determining the amount of control retained by the employer: (1) the independent nature of the worker's business; (2) the obligation to furnish the necessary tools, supplies, and materials to perform the job; (3) the right to control the progress of the work except as to final results; (4) the time for which the worker is employed; and (5) whether the worker is paid by the time or by the job. Hoechst Celanese, 899 S.W.2d at 220 (citing Pitchfork Land & Cattle Co. v. King, 162 Tex. 331, 346 S.W.2d 598, 603 (1961)). Examples of the type of control normally exercised by an employer include when and where to begin and stop work, the regularity of hours, the amount of time spent on particular aspects of the work, the tools and appliances used to perform the work, and the physical method or manner of accomplishing the end result. Thompson v. Travelers Indem. Co., 789 S.W.2d 277, 278-9 (Tex. 1990). The summary judgment record makes clear that Jesse Whittington was not an employee of the dealership in that he performed mechanical services on a flat-rate basis, with his own tools and without answering to anyone concerning the details of his work. Accordingly, Tony's Used Cars is entitled to summary of any job-related claim. Respectfully submitted, /s/ J. Nathan Overstreet James Nathan Overstreet SBN: 00784706 J. Nathan Overstreet & Assoc., P.C. 8711 Hwy 6 N., Suite #230 Houston, Texas 77095 (281) 855-1000 Fax (281) 855-4580 Attorneys for Defendant Tony's Used Cars, Inc. CAUSE NO. 15-CV-0643 JESSE WHITTINGTON AND § IN THE DISTRICT COURT SANDY WHITTINGTON § Plaintiff, § § vs. § GALVESTON COUNTY, TEXAS § TONY'S USED CARS, INC., § Defendant. § 405TH JUDICIAL DISTRICT CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing instrument Tony's Used Cars, Inc.'s Evidentiary Motion for Partial Summary Judgment has been sent pursuant to Rule 21a of the Texas Rules of Civil Procedure by U.S. First Class Certified Mail, Return Receipt Requested, Electronically, or through Facsimile Transmission on this the 19 th day of July, 2015, to all counsel of record. Joshua Estes James Magers 1708 Thompson Road Richmond, Texas 77469 (281) 238-5400 fax (281) 238-9964 joshuaEstes@EstesPC.net /s/ J. Nathan Overstreet James Nathan Overstreet CAUSE NO. I 5-CV-0643 JESSE WHITTINGTON AND § IN THE DISTRICT COURT SANDY WHITTINGTON § Plaintiff, § § vs. § GALVESTON COUNTY, TEXAS § TONY'S USED CARS, INC., § Defendant. § 405TH JUDICIAL DISTRICT AFFIDAVIT IN SUPPORT OF EVIDENTIARY MOTION FOR SUMMARY JUDGMENT BEFORE ME, the undersigned notary, did personally appear Romany W. Tony, who upon his oath did say as follows: "My name is Romany W. Tony. I am an officer of Tony's Used Cars, Inc. I am over the age of eighteen and am otherwise fully competent to make this affidavit. I have never been convicted of a felony. The matters contained in this affidavit are all within my personal knowledge and are true and correct. Tony's Used Cars owns and operates a retail automobile dealership. Tony's Used Cars would purchase vehicles from dealership auctions which often need mechanical repairs prior to their sale to the Tony's Used Cars retail customer. Tony's Used Cars already had a mechanic and even its own repair equipment — including a lift — prior to the time that Jesse Whittington agreed to repair the dealer's cars. Jesse Wayne Whittington is an automobile mechanic, and Jesse Wayne Whittington approached Tony's Used Cars and agreed to offer his services in November of 2013. Jesse Whittington agreed to work on a flat-rate basis of $350.00 per week. Jesse Wayne Whittington set his own hours and did not have to account to anyone concerning the methods of his work. Mr. Whittington provided his own tools. He acknowledged that he worked as an independent contractor and accepted the contracted amount by checks which reflect that no deductions were taken out for taxes. On or about January 20, 2015, Jesse Wayne Whittington suffered an injury which took place at the Tony's Used Cars lot. In this regard, Jesse Wayne Whittington was working under a vehicle which was supported by a jack (and not on the lift belonging to Tony's Used Cars) when the car slipped while Mr. Whittington was underneath the vehicle. DEFENDANT'S EXHIBIT Pk After the incident, Jesse Wayne Whittington acknowledged, on multiple occasions, that the January 20, 2015 incident was solely and proximately caused by his own negligence for being under the vehicle when the vehicle was being raised/lowered by the jack and/or for not using a car lift. On or about March 7, 2015, Jesse Whittington executed a Settlement and Release of all claims. The Settlement Agreement was reached as compromise of a disputed claim. Tony's Used Cars paid the sum of $500.00 in exchange for the release. The Settlement and Release was executed after Jesse Whittington had full opportunity (three hours) to read and review the document. The settlement was consummated at a Chase bank location and notarized. I am the custodian of Business Records, records for the following entity: Tony's Used Cars, Inc. Attached hereto is a true and correct copy of the Settlement Agreement and Release and some checks written to the Plaintiff These records are business records of the dealership. These records are kept in the regular course of business at this office, for an employee, or representative with personal representative with personal knowledge of the act, event or condition recorded to make the memorandum or record to transmit information thereof to be included in such memorandum or record; and the memorandum or record was made at or near the time of the act, event or condition recorded reasonably soon thereafter. The records attached hereto are exact duplicates of the original, and it is a rule to not permit the original records to leave the premises. FURTHER AFFIANT sayeth not. RomanyM7f,W. V ony SUBSCRMED TO AND SWORN TO on this the • da of 4A AIJ, 2015. , sw Noy.' blic My commission ex i/ 1=4,..n # hiDEBBY A. GRUBB y Commission Expires July 7, 2016 wriessor" / SETTLEMENT AGREEMENT AND RELEASE WHEREAS, it is the desire of Jesse Wayne Whittington and Tony's Used Cars Inc. to settle and resolve with regard to any claims that Jesse Wayne Whittington may have against Tony's Used Cars Inc. and their employees, agents, affiliates, and owners, arising from an accident and/or injury occurring on or about January 20, 2015 while working on the premises owned by Tony's Used Cars Inc. located at 2801 Texas Avenue La Marque, Tx 77568. WHEREAS, it is understood by Jesse Wayne Whittington and Tony's Used Cars Inc. that this Agreement is only for the purpose of settlement and compromise of claims; that any action taken pursuant to this Agreement is not to be construed or considered as an admission of liability or fault on the part of Tony's Used Cars Inc.; that Tony's Used Cars Inc. denies liability on any and all claims that have been asserted or could be asserted against Tony's Used Cars Inc. by Jesse Wayne Whittington: and that this Agreement is entered into merely to settle and terminate any outstanding issues and/or claims between the parties , and to avoid and preclude future litigation; and WHEREAS, Jesse Wayne Whittington further declares and represents he is executing this Agreement wholly upon his own volition, individual judgment, belief and knowledge, and that this Agreement is made without reliance upon any statement or representation of any other party or any other person, and further declares and represents that no promise, inducement, or agreement not herein expressed has been made to him, and that this Agreement reflects the entire agreement and understanding between Jesse Wayne Whittington and Tony's Used Cars Inc. and that the terms of this Agreement are contractual and not a mere recital; and DEFENDANT'S EXHIBIT 3 WHEREAS, it is the expressly understood intent, purpose, and desire of Jesse Wayne Whittington to hereby release, relinquish, and forever discharge Tony's Used Cars Inc., as well as any and all of their servants, agents, employees, owners, predecessors, successors, assigns and affiliated of and from any and all claims, demands, actions and causes of action of any and every kind and character, known or unknown, that Jesse Wayne Whittington may now have against any of them for bodily injury, property damage, employment or labor related damages or any other damages arising out of or related to the work Jesse Wayne Whittington was performing on the premises owned by Tony's Used Cars Inc. NOW, THEREFORE, in consideration of the payment to Jesse Wayne Whittington by Tony's Used Cars, Inc., in the sum of FIVE HUNDRED DOLLARS ($500.00), already paid, the receipt and sufficiency of which is hereby acknowledged by Jesse Wayne Whittington, it is hereby stipulated and agreed as follows: 1.0 Release and Discharge Jesse Wayne Whittington for himself and his heirs, legal representatives and assigns, does hereby release and forever discharge and acquit Tony's Used Cars Inc. and Romani Tony, as well as any and all of their servants, agents, employees, employers, partners, insurance carriers, predecessors, successors, assigns, parents, subsidiaries, owners, and affiliates (hereinafter collectively referred to as the "Releasees"), from any and all claims, demands, actions and causes of action of any and every character, known or unknown, that Jesse Wayne Whittington has ever had and/or may ever have against any of them arising out of or connected with the events and claims referenced in this Agreement (Jesse Wayne Whittington's accident and injury occurring on or about January 20, 2015), 2 and from any and all claims and causes of action that have been or could have been asserted. This release specifically includes all claims, past, present or future, known or unknown, against the Releasees, whether based on tort, contract, statute or any other theory of recovery, for damages, relief or remedy of any sort, arising out of or relating in any way to arising from the accident injury of January 20, 2015 while working for and/or on the premises owned by Tony's Used Cars Inc; and/or (2) any and all injuries, medical expenses, property damage, lost income, loss of earning capacity, pain and suffering, mental anguish, physical impairment, loss of consortium, loss of enjoyment of life, lost business opportunities, or other damages of any sort, past, present or future, resulting from the Incident. 2.0 Indemnity It is the purpose and intention of Jesse Wayne Whittington and the Releasees herein that the Releasees shall not, either directly or indirectly, under any device, form of action or proceeding, present or future, be liable for or required to make any further payment of any monies in any way arising out of or resulting from the injury Jesse Wayne Whittington sustained on or about January 20, 2015 on the premises owned by Tony's Used Cars Inc. Therefore, in further consideration of the payments described above, Jesse Wayne Whittington agrees to indemnify and hold harmless the Releasees herein of and from any and all claims, suits, debts, liens, causes of action, demands, cross-actions, or third-party actions, now pending or that may hereafter be asserted by any party claiming by, through or under the Jesse Wayne Whittington, including without limitation, claims for any lien, quantum meruit claims, or any other claims made on any theory whatsoever, regardless of whether said claims arise in whole or in part from the negligence, negligence per se, gross 3 negligence, willful and wanton conduct, and/or intentional conduct of any of the Releasees. In this regard, it is agreed and acknowledged by the parties hereto that this Indemnity Agreement meets the "express negligence" test, including "conspicuousness," set forth under Texas Common Law. 3.0 Warranty of Capacity to Execute Agreement Jesse Wayne Whittington expressly warrants and represents that he is of sound mind and is otherwise competent to execute this Agreement; that he is the sole owner of the claims described herein and any other claims with respect to the subject matter thereof that could have been brought, known or unknown, past, present or future; that all such claims are subject to this Agreement; and that only he has the sole right and authority to settle, compromise, and release such claims and to execute this Agreement. Jesse Wayne Whittington further warrants and represents that he has not conveyed, assigned or otherwise transferred to anyone any right, title or interest in any claim described herein. Jesse Wayne Whittington further agrees to indemnify and hold harmless the Releasees against any claims based on any such conveyance, assignment or transfer made by him. 4.0 Medical and/or Healthcare Expenses 4.1 Jesse Wayne Whittington expressly warrants that he has paid for, will pay for and/or will cause to be satisfied, any and all medical and/or healthcare-related expenses that have been incurred in the past, that are presently due and owing, and/or that are or may be owed in the future, for treatment or care received as a result of the matters stated herein and will fully and completely indemnify and hold harmless the Releasees of and from any and all claims and liens based thereon, including, but not limited to, claims or liens under the Texas Hospital Lien Law and/or Medicare. 4 4.2 The parties have reasonably considered whether a Medicare Set Aside is necessary. Jesse Wayne Whittington declares and expressly warrants that he is not Medicare eligible and all treatment for the alleged injury related to this settlement has been completed as of the date of this settlement, and that future medical items and/or services for his injuries will not be required, and therefore, no Medicare Set Aside Allocation is being made. In the event any of the above information is false or is in any way incorrect, the undersigned shall be solely liable for any and all actions, causes of action, penalties, claims, costs, services, compensation or the like resulting from these inaccuracies, and further, the undersigned acknowledges that Medicare may require him to exhaust the entire settlement proceeds on Medicare covered expenses should the undersigned become Medicare eligible within thirty (30) months. 5.0 Compromise It is hereby expressly understood that this settlement is a compromise of doubtful and disputed claims, and that the payment described above is not to be construed as an admission of liability on the part of the Releasees. 6.0 Intentionally blank 7.0 No Representations by Releasees 7.1 In making this agreement of compromise and settlement, Jesse Wayne Whittington has not relied upon any statement or representation pertaining to this matter made by the Releasees or persons representing them, or by any person or persons employed by them. 5 7.2 Jesse Wayne Whittington represents and warrants that the Releasees have not made any representations to them as to federal income tax consequences, if any, of the settlement reflected by this Agreement. 8.0 Governing Law This Agreement shall be construed and interpreted in accordance with the laws of the State of Texas. 9.0 Additional Documents All parties agree to cooperate fully and execute any and all supplementary documents and to take all additional action that may be necessary or appropriate to give full force and effect to the basic terms and intent of this Agreement. 10.0 Entire Agreement and Successors in Interest This Agreement contains the entire agreement between Jesse Wayne Whittington and the Tony's Used Cars Inc. with regard to the matters set forth in it, and shall be binding upon and inure to the benefit of the executors, administrators, personal representatives, heirs, successors and assigns of each. IT IS EXPRESSLY WARRANTED AND UNDERSTOOD that the undersigned has carefully read the foregoing Agreement and knows the contents thereof, and signed the same of his own free act. Dated: 3 1 7 ,2015. JURAT 6 BEFORE ME, the undersigned authority, on this day personally appeared Jesse Wayne Whittington, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that she executed same in the capacity stated, and for the purposes and consideration therein expressed. ?GIVEN UNDER MY HAND AND SEAL OF OFFICE, this kWh 2015. day of blic hfand)for the TEXAS LAURA SAUCEDO d My Commission Expires .7.11