File: 061467HF - From documents transmitted: 01/08/2008
AFFIRM and Opinion Filed January 8, 2008
Court of Appeals
Fifth District of Texas at Dallas
MARK SCHOMBURG AND CYNTHIA S. SCHOMBURG, Appellants
TRW VEHICLE SAFETY SYSTEMS, INC., Appellee
On Appeal from the 116th Judicial District Court
Dallas County, Texas
Trial Court Cause No. 05-12825
OPINION ON MOTION FOR REHEARING
Before Justices Whittington, Wright, and FitzGerald
Opinion By Justice Wright
Appellants Mark and Cynthia Schomburg filed a motion for rehearing. We
deny appellants' motion for rehearing. On the Court's own motion, we withdraw this Court's
opinion dated October 23, 2007 and vacate the judgment of that date. This is now the opinion
of the Court.
Mark and Cynthia Schomburg appeal a summary judgment rendered in favor
of TRW Vehicle Safety Systems, Inc. (TRW). In a single issue, the Schomburgs contend the
trial court erred in granting summary judgment on TRW's affirmative defense of release. We
overrule the Schomburgs' issue and affirm the trial court's judgment.
On November 17, 2003, Mark Schomburg was injured in a car accident in
which his vehicle, a Chevrolet S-10 Blazer, rolled over. Following the accident, the Schomburgs
sued General Motors Corporation for products liability and negligence. The Schomburgs settled
their claims with GM and executed a Confidential Settlement Agreement and Complete Release
on December 8, 2004.
The settlement agreement defines the released party as “General Motors
Corporation, its related and affiliated companies or corporations, agents, servants, authorized
dealers, component suppliers, . . .” The release provides that it applies to all claims of the
Schomburgs that arise from or relate to the accident on November 17, 2003.
On December 27, 2005, a little over one year after signing the settlement
agreement with GM, the Schomburgs sued TRW, the seatbelt manufacturer. They claimed the
“vehicle components” manufactured by TRW were not crashworthy and were defectively
designed and manufactured. TRW asserted the affirmative defense of release and sought
summary judgment on the ground of release. The trial court granted TRW's motion and this
appeal timely followed.
Standard of Review
The standard of review for a summary judgment is well-established. Tex. R.
Civ. P. 166(c); Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 23 (Tex.1990). In
reviewing a traditional motion for summary judgment, evidence favorable to the nonmovant will
be taken as true. Nixon v. Mr. Prop. Mgm't Co., 690 S.W.2d 546, 548-49 (Tex.1985). To
prevail on summary judgment, a defendant as movant must either disprove at least one element
of each of the plaintiff's theories of recovery or plead and conclusively establish each essential
element of an affirmative defense, thereby rebutting the plaintiff's cause of action. City of
Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). A matter is
conclusively established if ordinary minds could not differ as to the conclusion to be drawn from
the evidence. Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d
443, 446 (Tex.1982).
In their sole issue, the Schomburgs contend the trial court erred in granting
summary judgment on the ground that they had released TRW through their settlement with GM.
They contend that TRW was not released because it was not specifically named.
A release is a complete bar to any later action based upon matters covered in
the release. Deer Creek Ltd. v. North Am. Mortgage Co., 792 S.W.2d 198, 201 (Tex.
App.-Dallas 1990, no writ). A release applies to a party that is either specifically identified in the
release or described with sufficient particularity. See Duncan v. Cessna Aircraft Co., 665
S.W.2d 414, 419 (Tex. 1984). When a release refers to a related document, that document
should be considered when reviewing a release. Anheuser-Busch Cos. v. Summit Coffee Co.,
858 S.W.2d 928, 932-34 (Tex. App.-Dallas 1993, writ denied), vacated on other grounds,
514 U.S. 1001, (1995).
The settlement agreement between the Schomburgs and GM defined the
released party as follows:
The released party is General Motors Corporation, its related and affiliated companies or
corporations, agents, servants, authorized dealers, component suppliers, legal
representatives, attorneys, employees, directors, shareholders, members, officers,
subsidiaries, predecessors, successors, and insurers, and all persons, firms, organizations, or
corporations in privity with the foregoing (even if such persons or entities are not specifically
named in this Confidential Settlement Agreement and Complete Release).
The Schomburgs released “all claims, actions, demands, and causes of action owned or held
by [the Schomburgs] . . . that arise from, result from, or in any way relate to the accident in
question that occurred on or about November 17, 2003 in Dallas County, Texas, which
accident is more particularly described above and in the pleadings on file in this action.” The
settlement agreement further states that it includes “any liability whatsoever that arises directly
or indirectly out of or is in any manner related to the subject vehicle involved in this action, or its
component parts, or manufacture, design, . . ..” (emphasis added). The settlement agreement
referenced the Schomburgs' complaint against GM. Their complaint alleged that the vehicle was
not crashworthy and that it was “unreasonably dangerous as designed, manufactured,
assembled, marketed, and tested because [GM] knew that the vehicle was unsafe and
The Schomburgs sued TRW alleging that the seatbelt restraint system that it
supplied by TRW to GM was not crashworthy and was defective. They alleged the seatbelt
failed to properly restrain Mark Schomburg during the accident. The factual allegations in the
complaint in the GM lawsuit and the petition in the TRW lawsuit are identical. TRW filed an
answer and asserted the affirmative defense of release.
The supreme court has held that a “tortfeasor can claim the protection of a
release only if the release refers to him by name or with such descriptive particularity that his
identity or his connection with the tortious event is not in doubt.” Duncan, 665 S.W.2d at 420.
In Duncan, the plaintiff's husband was killed in an airplane crash. She sued the pilot and owner
of the aircraft. They settled and signed a release that discharged the defendants and “any other
corporations or persons whomsoever responsible therefor, whether named herein or not, from
any and all claims of every kind and character whatsoever, . . . on account of the fatal injuries by
[the deceased], which resulted in his death, as the result of an airplane crash occurring on or
about October 19, 1976.” Id. at 418. Duncan then sued Cessna, the aircraft manufacturer.
Cessna asserted the affirmative defense of release. The supreme court held that the release did
not apply to Cessna because “all corporations” did not sufficiently describe the aircraft
manufacturer. Id. at 420.
This Court has previously held that a release in a lawsuit involving a motor
vehicle accident that applied to an employer and its “agent, servant” was sufficient to include
the release of the employee. See Randall v. Dallas Power & Light Co., 745 S.W.2d 397, 401
(Tex. App.-Dallas 1987), rev'd on other grounds, 752 S.W.2d 4 (Tex. 1988). In so holding,
this Court noted that the employee's identity and connection to the tortious event could not be
doubted where the release specified the date and location of the accident. Id.
In another case, the release defined the released parties as “[H. R.
Management Company], all its affiliated companies, parent companies, subsidiaries, officers,
agents, and employees, its insurer [Atlantic Lloyds], and all its affiliated companies, officers,
agents, and employees.” Atlantic Lloyds Ins. Co. v. Butler, 137 S.W.3d 199, 219 (Tex.
App.-Houston [1st Dist.] 2004, pet. denied). The court viewed the released parties as a
specific group who had the authority to act on behalf of HRM or Atlantic Lloyds in connection
with the underlying lawsuit. Id. at 219. The court held that the release applied to (1) Centennial
Insurance Company who issued two of HRM's policies in dispute, (2) Atlantic Mutual Insurance
Company, the owner of Centennial, and (3) two Atlantic Mutual employees who handled the
plaintiffs' claim. Id. In doing so, the court distinguished the release from those that attempt to
include a virtually limitless class of potential tortfeasors. Id. See also Frazer v. Texas Farm
Bureau Mut. Ins. Co., 4 S.W.3d 819, 824 (Tex. App.-Houston [1st Dist.] 1999, no pet.)
(court of appeals held document that released Texas Farm Bureau Mutual Insurance Company
“and its affiliated companies”sufficiently identified Texas Farm Bureau Underwriters such that
its identity was not in doubt).
The Schomburgs cite to an unpublished case out of this court to support their
contention that the release did not sufficiently identify TRW. See Wynne v. Lindauer, No.
05-05-01814-CV, 2002 WL 1608224 (Tex. App.-Dallas 2002, no pet.) (not designated for
publication). The parties in Wynne executed a release as part of an agreed judgment in the
division of their marital estate. Their attorneys were included among the released parties. The
wife then sued her attorneys for legal malpractice. The attorneys obtained summary judgment on
the ground of release. This Court reversed the summary judgment holding that the release of
malpractice claims was not a dispute contemplated by the parties when signing the release. Id.
This Court then stated, without any analysis, that the attorneys were not released because they
“clearly and unambiguously were not parties to the agreement, Wynne and Murphy were.” This
statement does not impact our analysis of this case under Duncan. See Footnote 1
this case, the settlement document identified the accident by date,
location, and the vehicle identification number of the Schomburgs' vehicle. The Schomburgs released GM
and its components suppliers. They also released all claims related to the vehicle and its
We conclude the term “component suppliers” is sufficiently descriptive so as
to identify TRW, the supplier of the seatbelt restraint system. It is not so broad as the release in
Duncan that referred to any other corporations or persons whomsoever responsible therefor.
Although the release does not name TRW, it identifies a specific group who supplied parts to
GM for the manufacture of a specifically identified vehicle. It was this vehicle that was alleged not
to be crashworthy in both the lawsuits against GM and TRW. TRW is readily identifiable from
We overrule the Schomburgs' issue and affirm the trial court's judgment.
Footnote 1 At oral argument, counsel for the Schomburgs cited the Court to another
unpublished opinion. See Ambrosio v. EPS Wireless, Inc., 05-99- 01442-CV, 2000
WL1160696 (Tex. App.-Dallas 2000, no pet.) (not designated for publication). In Ambrosio,
the plaintiff appealed from a summary judgment on his breach of contract claim against EPS
Wireless employee David Lopez in his individual capacity. In a release between the plaintiff and
EPS, the plaintiff released EPS and its employees. This court held that Lopez was released as an
employee of EPS but not in his individual capacity. We do not find the holding in Ambrosio to
be applicable to this case.