STORAGE & PROCESSORS, INC. AND LEONEL GUERRERO v. RAMON REYES (concurring)

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No. 02-1008

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STORAGE & PROCESSORS, INC. AND LEONEL GUERRERO,

Petitioners

v.

RAMON REYES, Respondent

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On Petition for Review from the

Court of Appeals for the Sixth District of Texas

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Argued October 29, 2003

Justice Schneider, concurring.

I fully agree with the Court that an employer must satisfy the fair notice requirements of the express-negligence doctrine and conspicuousness when it enrolls employees in a non-subscriber workers= compensation benefits plan.

But I write separately to note that there is an additional reason why the fair notice requirements should apply to all nonsubscriber agreements. Workers entering into these agreements are uniformly less sophisticated than the employers who draft them. It is unlikely that many workers are even aware of what exactly they are giving up by agreeing that they can neither sue their employer nor receive subscriber-level benefits in the event they are injured. Reyes is a prime example. A non-English speaker, he allegedly received a summary of the plan in Spanish, but the contract that he signed was in English. Moreover, it is undisputed that the waiver was not conspicuous.

Of course, not all contracts between sophisticated and unsophisticated parties must meet the fair notice requirements. But, because non-subscriber worker=s compensation plans are exclusively drafted by more sophisticated parties and offered to less sophisticated parties, there is a strong public policy justification to require those agreements to meet both requirements. Accordingly, I join the Court=s opinion and concur in its judgment.

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MICHAEL H. SCHNEIDER

JUSTICE

OPINION DELIVERED: April 2, 2004