Trucker's negligence claim against employer still gets WC treatment

In Texas, when an employee brings a negligence suit against an employer that does not carry workers' compensation insurance, the suit still arises under the Workers' Compensation Act.

Case name: Robertson v. Home State County Mutual Insurance Co., No. 2-08-280-CV (Tex. Ct. App. 10/08/09).

Ruling: The Texas Court of Appeals affirmed summary judgment for a liability carrier, finding the carrier did not have a duty to defend the employer under the terms of the policy because the employee's action fell under the workers' compensation exclusion.

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What it means: In Texas, when an employee brings a negligence suit against an employer that does not carry workers' compensation insurance, the suit still arises under the Workers' Compensation Act.

Summary: A trucker was injured when a tarp on his truck malfunctioned. His employer did not carry workers' compensation insurance but had a trucker's liability insurance policy. The policy specifically excluded "obligations" that the employer could be held liable for under the workers' compensation laws. The trucker filed a negligence suit against the employer and the carrier. The carrier argued the trucker's negligence claim against the employer -- and therefore against the carrier -- was barred under the policy's workers' compensation exclusion. The trucker argued his employer did not carry workers' compensation insurance, and therefore, the policy's exclusion could not apply. Under Texas law, if an employer chooses not to carry workers' compensation coverage an injured employee can sue for negligence, and the employer is limited in its defenses. As the law specifically addressed this scenario, the trucker's case was covered under the act. The court affirmed the finding that his claim fell under the workers' compensation exclusion.

The court explained under the Texas workers' compensation law, there are three possible outcomes. Here, the court reasoned the trucker's claim was covered under the employer penalty statute to the Workers' Compensation Act. The court reasoned that the trucker's case was not simply a negligence action, it was "expressly contemplated by and completely provided for and described in the [workers' compensation act]." To decide otherwise would effectively render meaningless several provisions of the law, it said.

As for the other two scenarios, if an employer has workers' compensation coverage and an injury occurs in the course and scope of employment, the carrier is liable, and workers' compensation is the exclusive remedy. However, an employee can notify his employer in writing that he waives coverage in order to retain all of his rights to sue the employer for negligence.

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December 3, 2009

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