Employer's Liability for a Houston Workplace Injury

Workplace injuries are a significant concern across Texas, and especially in places like Houston that have high employment in dangerous industries like construction, manufacturing, maritime, and the oil and gas industry. If you get hurt on the job in Texas, one of your top questions might be: Who is responsible for the injury?

Most employers in the state of Texas carry workers’ compensation insurance. So when an employee is injured on the job and the employer has workers’ compensation, then the employee can make a workers’ comp claim. That claim is handled through the workers ’compensation system, and an injured employee can obtain medical care through approved providers, a percentage of lost wages, and perhaps some other benefits.

Unlike many other states, employers in Texas are not required to carry workers’ compensation insurance. If a Texas employer does not have workers’ compensation insurance, that employer is known as a non-subscriber. If an employee is injured on the job and the employer is a non-subscriber, the way the injured employee can require the employer to pay for medical care, lost wages, and other damages is by making a claim against the employer for negligence. This usually requires that a lawsuit be filed against the non-subscribing employer. Some non-subscriber employers will do the right thing by paying for the injured employee’s medical care and lost wages, but unfortunately, all too often that is not what happens.

When an employee is injured on the job, there can also be what is known as a third-party claim. This is a type of claim that can be made against a third-party (not the employer or a co-employee) that caused the workplace accident or injury, such as a truck driver, truck company, general contractor, sub-contractor, equipment manufacturer, or other.

If you or a loved one has sustained injuries while on the job in Houston or elsewhere in Texas, get help from the experienced workplace injury lawyers at The Callahan Law Firm today. Employer liability is a complex topic in Texas, and there may be multiple options for seeking financial compensation. Let us investigate the specifics of your case and help you get the justice you and your family deserve under the law.

Contact us online or call us 24/7 at (713) 589-7767 to set up a free consultation with a Houston workplace injury attorney. Our office is conveniently located at 440 Louisiana St #2050, Houston, TX. We can help!

When Are Texas Employers Liable for Workplace Injuries?

Texas law allows employers to choose whether they carry workers’ compensation insurance. The choice changes how liability for workplace injuries functions.

Employers that choose to carry workers’ compensation coverage, known as “subscribers,” cannot be sued for negligence by one of their employees who is injured on the job. Instead, workers’ compensation provides no-fault coverage and is meant to be the sole remedy against the employer for workplace injuries. The trade-off for no-fault workers’ compensation coverage is that employees waive their right to sue their employers for negligence.

Note, however, that employees in Texas can opt out of workers’ comp coverage and retain the right to sue their employers if they provide written notice (Tex. Lab. Code 406.034) within five days of the day they begin employment or learn their employer has obtained workers’ compensation insurance coverage.

Employers that do not carry workers’ compensation, known as “non-subscribers,” can be held liable for negligence that causes an employee’s injuries. Specifically, non-subscribers can be liable for employee injuries resulting from the employer’s negligence.

Non-subscriber employers in Texas can purchase employer’s liability coverage to protect them if an employee sues for workplace injuries. Unlike the no-fault workers’ compensation system, injured workers may be required to prove that the employer’s negligence caused the accident to recover compensation.

What Claims Can Employer’s Liability Insurance Cover?

Employer’s liability insurance can pay for injuries and any other costs that stem from a workplace injury due to employer negligence. Usually, this type of non-workers’ compensation policy will pay for medical care expenses as long as the injured worker treats with a company-approved doctor, as well as approved loss of earnings. This type of policy usually does not pay for damages such as pain and suffering, physical impairment, mental anguish, disfigurement, and more.

In addition to workplace injury claims, employer liability insurance can pay for:

• Over-action claims – An over-action claim occurs when an injured employee sues a third party, which then sues the employer for negligence.
• Dual-capacity claims – A dual-capacity claim is when a party sues an employer in two capacities. For instance, if an employee sustains injuries while using employer-produced equipment, they might sue the company as an employer and as a product supplier.
• Consequential injuries – Consequential injuries are injuries that occur in response to occupational injuries, such as a spouse having a heart attack due to the stress of managing their partner’s work injury.
• Loss of consortium – Spouses of injured employees may be able to sue employers for loss of companionship, comfort, and affection after serious or fatal workplace injuries.

What Are the Key Legal Doctrines in Employer Liability?

Tex. Lab. Code 406.033 lays out several important common law principles regarding employer liability claims when the employer is a non-subscriber and does not carry workers’ compensation insurance.

• Employers can be liable for acts or omissions of only their employees or agents, not contractors or subcontractors.
• Employers cannot defend themselves from liability by arguing that the employee assumed risk or was contributorily negligent.
• Employers can defend claims on the grounds that the injured employee was intoxicated at the time of the accident.
• Employers can defend claims on the grounds that the employee’s injuries were intentional.
• The burden of proof of demonstrating employer negligence is on the plaintiff.
• Employees cannot waive their right to sue for injuries before the injury or illness occurs.
• Employees can voluntarily waive their right to sue after sustaining an injury if they have received a medical evaluation and enter the waiver no sooner than 10 days after the injury’s occurrence.

How Does Employer’s Liability Insurance Compare to Workers’ Compensation in Texas?

There are two key differences concerning employer’s liability insurance vs. workers’ compensation:

• The first is how liability works. Employer’s liability insurance is fault-based coverage, meaning the employee must show the employer was at fault for the injury to recover compensation under the policy. In contrast, workers’ compensation insurance is no-fault, which means it will pay benefits for employee injuries regardless of who was at fault.
• The second difference concerns covered losses. Workers’ compensation will pay for only financial losses like medical bills and lost work income. If an employer has workers’ compensation coverage, the employee cannot sue the employer for negligence. An exception is that if there is a fatality, a gross negligence claim can be filed against an employer..

Employer’s liability insurance, in contrast, can pay for intangible losses, such as pain and suffering, in addition to financial losses. If an employer does not carry workers’ compensation coverage, employees can sue for pain and suffering, physical impairment, mental anguish, disfigurement, and potentially additional damages.

What Happens if Your Employer Is a Texas Non-Subscriber?

If your employer is a non-subscriber to the Texas workers’ compensation system, then you can sue them for workplace injuries that stem from their negligence. The process of suing a non-subscribing employer for a workplace accident is similar to that of other kinds of personal injury lawsuits.

You can check whether your employer is a non-subscriber through the state’s Division of Workers’ Compensation lookup tool.

Get Help from a Houston Workplace Injury Lawyer Today

The Callahan Law Firm’s trial lawyers have over 30 years of experience litigating workplace injury claims in Houston and throughout Texas. We are dedicated to standing up for everyday Texans against big insurance companies and corporations.

Our board-certified attorneys are selective about the cases they accept to ensure they can devote the time and attention to the clients we do represent. At The Callahan Law Firm, we have the experience, skill, and resources required to level the playing field and maximize your chances of a successful financial recovery.

Contact our offices today or call us 24/7 at (713) 589-7767 for a free in-person, over-the-phone, or video case consultation with a Houston workplace injury attorney.