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United States Court of Appeals,
Fifth Circuit.
No. 93-7403.
Summary Calendar.
Claibon SIMPSON, Sr., Plaintiff-Appellant,
v.
LYKES BROS. INC., et al., Defendants,
Texaco, Inc., Defendant-Appellee.
June 9, 1994.
Appeal from the United States District Court for the Southern
District of Texas.
Before GARWOOD, DAVIS and JONES, Circuit Judges.
PER CURIAM:
Simpson appeals the district court's judgment dismissing his
Jones Act suit against the defendant, Texaco. We affirm.
I.
In 1992, Claibon Joseph Simpson, Sr., filed a Jones Act suit
against Texaco and others alleging that he suffered hearing loss
due to exposure to excessive noise during his seagoing employment
from 1965 through 1984.
Texaco filed a Motion for Summary Judgment. In support of its
motion, Texaco submitted an excerpt from Simpson's deposition
testimony and a copy of a release signed by Simpson in October
1989. Pursuant to the release, Simpson and his wife settled with
Texaco for $398,000 for a 1984 back injury. Simpson did not submit
an affidavit or other evidence in opposition.
The district court granted Texaco's motion and stated that the
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"Plaintiff's present claims against Texaco, Inc., for loss of
hearing are barred due to Plaintiff's signing of the FULL AND FINAL
RECEIPT AND RELEASE." All other defendants were dismissed.
II.
On appeal, Simpson argues that the district court incorrectly
interpreted the scope of the 1989 release. Simpson argues that the
release is specifically limited to the back injury. He argues that
he did not appreciate the consequences of the release because he
did not know of the hearing loss until after he signed the release.
"Seamen are wards of admiralty and any release or settlement
involving their rights is subject to careful scrutiny."
Stipelcovich v. Sand Dollar Marine, Inc., 805 F.2d 599, 606 (5th
Cir.1986). "The ultimate concern in these cases, however, is not
whether the seaman has received what the court believes to be
adequate consideration, but rather whether the seaman relinquished
his rights with an informed understanding of his rights and a full
appreciation of the consequences when he executed a release." Id.
The shipowner bears the burden of proof in establishing the
validity of a seaman's release. Castillo v. Spiliada Maritime
Corp., 937 F.2d 240, 244 (5th Cir.1991). "The shipowner must show
that the seaman's release was executed freely, without deception or
coercion, and that it was made by the seaman with full
understanding of his rights." Id. (internal quotations and
citation omitted). The burden is heavier on a motion for summary
judgment because the shipowner must conclusively demonstrate the
absence of a genuine issue of material fact. Id.
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This court reviews a grant of summary judgment de novo.
Reese v. Anderson, 926 F.2d 494, 498 (5th Cir.1991). Factors
relevant to an appraisal of a seaman's understanding of his rights
include the nature of the legal advice available to the seaman at
the time of signing the release, the adequacy of the consideration,
whether the parties negotiated at arm's length and in good faith,
and whether there was the appearance of fraud or coercion. Borne
v. A & P Boat Rentals No. 4, Inc., 780 F.2d 1254, 1256-57 (5th
Cir.1986).
The release clearly stated the terms of the agreement and
Simpson's rights against Texaco. In exchange for the consideration
given, the Simpsons agreed to "fully hold harmless" Texaco from
any and all liability of any sort ... arising from deleterious
or detrimental exposures, events or occurrences sustained by
CLAIBON JOSEPH SIMPSON, SR., and all consequences thereof,
whether known or unknown while I, CLAIBON JOSEPH SIMPSON, SR.,
worked aboard or about the properties, personnel and or
vessels of ... [Texaco], including but not necessarily limited
to even my death and/or that which form the basis of the [back
injury suit] ...
We further understand that this Release and the aforesaid
consideration covers [sic] all future and unknown damages, as
well as such damages as are now known to have occurred ...
Simpson concedes that the release was not signed under duress.
The Simpsons acknowledged that they had been advised by counsel and
that they understood the advice. They stipulated that "[a]s part
of the consideration hereof, we sign this Release after we have
consulted with attorneys of our own choice and with full knowledge
that we are giving up all our rights against the said ... TEXACO,
INC. ..." It was Simpson's counsel who negotiated the settlement
in apparent good faith at arm's length.
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The consideration of $398,000 received by Simpson does not
support a finding that he was uninformed of his rights or that he
did not recognize the consequences when he settled. See
Stipelcovich, 805 F.2d at 606.
The district court analyzed the release in light of the Borne
factors and determined that "it is difficult to see how Mr. Simpson
can now argue that he did not understand the release, or believed
that it was limited to the injuries to his back and nervous
system." The district court did not err in concluding that Simpson
was informed of his rights and of the consequences of signing the
release.
The district court correctly rejected Simpson's argument that
the release does not cover his hearing loss because he was unaware
of this injury when he signed the release. The release expressly
covers unknown events and exposures as well as future damages both
known and unknown.
Texaco met its burden of establishing that there are no
material facts at issue in this case. Simpson offered no evidence
establishing the existence of a genuine issue for trial. The
release bars suit by Simpson against Texaco, and the court
correctly granted summary judgment as to Texaco.
III.
Simpson argues that if there was a general release, it is void
as a matter of public policy because Texaco drafted the release and
because there was unequal bargaining power between Simpson and
Texaco. Simpson does not support this argument with any
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controlling case law or evidence, therefore, this argument is
without merit.
Simpson signed the release with assistance of counsel. He
does not complain about the adequacy of that representation. "When
a seaman is acting upon independent advice and that advice is
disinterested and based on a reasonable investigation, there being
no question of competence, a settlement agreement will not be set
aside." Borne, 780 F.2d at 1258.
AFFIRMED.

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