Texas employers who are subscribers to the workers’ compensation program are still nonetheless liable for punitive damages in connection with the death of an employee upon a showing of gross negligence. Although being a subscriber gives an employer limited immunity from the ordinary negligence claims of their employees that immunity does not extend to liability for intentional acts or gross negligence which results in the death of an employee.
Texas Labor Code Section 408.001 provides that the spouse and “heirs of the body” of a deceased worker have a right to bring a claim against an employer with workers’ compensation insurance for punitive damages. In order to be successful the spouse and heirs must show that the conduct of the employer created an extreme risk of harm to the employee, that the employer had actual subjective awareness of the extreme risk created by their acts and/or omissions, and that the employer was consciously indifferently to that risk. Because workers’ compensation coverage provides lost wages and medical benefits and a gross negligence claim seeks punitive damages the two claims are deemed not to be in conflict with one another and both claims may be pursued. Injured workers would be well advised to contact a Texas workers’ compensation attorney.
If a Texas employer elects not to purchase workers’ compensation insurance then the employer is a “nonsubscriber” and does not have the immunity granted by the program. Nonsubscriber employers lose the right to assert the common law defenses of assumption of the risk and contributory negligence. Furthermore, nonsubscribers are subject to Wrongful Death and Survival claims pursuant to Chapter 71 of the Texas Civil Practices and Remedies Code.
For more information contact a Tyler Wrongful Death Attorney today.