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Alashmawi v. IBP, Inc.

ERISA '1144(a) does not preempt a common law negligence claim for a work related injury against an employer.

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By this appeal, appellant Amr Alashmawi challenges the trial court’s order granting summary judgment that he take nothing against appellee IBP, Inc. on his common law cause of action for personal injuries sustained by him while in the course and scope of his employment with IBP and his action for breach of contract. In connection with his general issue, *fn1 Alashmawi presents seven sub- issues, to wit: 1) whether there is more than a scintilla of evidence raising a genuine issue of material fact on all challenged elements of his claim for negligence, and 2) on all challenged elements of his contract defenses of fraud, duress, undue influence, and lack of capacity; 3) whether IBP established as a matter of law all essential elements of its affirmative defenses of waiver, election, release, and Workplace Injury Settlement Program-Texas *fn2 (WISP) dispute- resolution and administrative-remedies provisions; 4) whether IBP established as a matter of law all essential elements of its affirmative defenses of ratification, estoppel, and lack of due diligence; 5) whether there is more than a scintilla of evidence raising a genuine issue of material fact on all challenged elements of his section 32.46 claim; 6) whether IBP established as a matter of law that his state law claims and contract defenses are preempted by ERISA; *fn3 and 7) whether the trial court had jurisdiction over his alternative claim for breach of contract. Based upon the rationale expressed herein, we reverse and remand in part and affirm in part.

IBP did not provide workers’ compensation insurance coverage and elected to become a non-subscriber. Tex. Lab. Code Ann. � 406.002 (Vernon 1996). Instead, IBP established WISP, which provides benefits summarized in part as follows:

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