The Alfred Firm recently obtained a confidential settlement on behalf of our client who sustained life-changing injuries when he was crushed by a backhoe on a Houston construction site. In this case, our client was able to sue his employer directly for its negligence and recover damages because his employer did not provide workers’ compensation benefits to its employees.
What is a Non-subscriber Employer?
In Texas, employers have the option to provide workers’ compensation insurance to its employees. A 2018 study conducted by The Texas Department of Insurance revealed that approximately 72% of eligible employers are subscribed to workers’ compensation coverage, which means about 1 in every 4 eligible employers are non-subscribers.
If the employer chooses to subscribe to workers’ compensation coverage, it pays money into the program, and if an employee is injured on the job he/she files an administrative claim for limited benefits from the workers’ compensation injury fund. With the exception of very rare and specific circumstances, the injured worker does not have the right to sue his/her employer directly due to his/her injuries.
However, if the employer chooses not to subscribe to workers’ compensation coverage, the employer is considered a ‘non-subscriber’ and its employees retain their right to sue them directly for work-related injuries. This allows an injured worker, like our client who was nearly killed in the backhoe crushing incident, to hold his employer accountable for its negligence and be fully compensated for his losses.
Non-subscriber Cases Differ from Most Work Injury Lawsuits
When we are contacted by an injured worker, one of the first things we do at The Alfred Firm is determine whether or not the employer is subscribed to workers’ compensation coverage. If the employer is a non-subscriber, the employer may be sued and, additionally, is barred from using some powerful defenses. This can be advantageous to our client’s work injury claim.
Employers generally have a variety of defenses at their disposal that they can assert in the event they are sued for negligence. In non-subscriber work injury cases, the following common defenses are not allowed to be raised by the employer:
Non-Subscriber Employers May Not Assert the Contributory Negligence Defense
In a typical work injury claim, the employer is allowed to attempt to blame the injured worker as being the cause of his/her own injuries. At the end of a jury trial the jury assigns a percentage of fault to both the employer and the injured worker, and any recovery by the injured worker is reduced by the amount of fault placed on him/her.
An example would be if a jury assesses damages at $1,000,000 and assigns 20% of the fault to the injured worker and 80% of the fault to the employer, the employer will be ordered to pay the injured worker $800,000. This is because the injured worker’s recovery was reduced by 20% due to his or her own fault in causing the injury.
This is arguably the most significant difference-maker in non-subscriber cases because the employer is not allowed to assert this defense, nor benefit from a reduction of damages due to the injured worker’s own negligence. This means that if the employer is found to be only 1% responsible for causing the injuries, it must pay 100% of the damages.
Non-Subscriber Employers May not Assert the Assumption of Risk Defense
Negligent employers sometimes argue that an injured employee is not entitled to any compensation because he/she knew what he/she was doing could result in injuries and he/she assumed the risk of being injured by doing it. This defense is prohibited in non-subscriber cases.
Non-Subscriber Employers May not Assert the Waiver of Liability Defense
Non-subscriber employers are prohibited from using pre-injury waivers to avoid liability if an employee is injured at work. This means that a non-subscriber employer cannot require an employee to sign a contract agreeing not to sue if he/she is injured on the job.
Non-Subscriber Employers May not Assert the “Fellow Servant” Defense
Sometimes negligent employers claim that another employee caused the worker’s injuries and that the other employee should be responsible for the injured worker’s damages. In non-subscriber cases, employers cannot use this defense and is responsible for the injured worker’s injuries - even if another employee is also found to be liable.
About Johnny Alfred III
Johnny Alfred III is a trial lawyer who focuses his practice on workplace injuries, refinery explosions, construction accidents, catastrophic personal injuries, 18 wheeler crashes, auto collisions, real property matters, and patent/intellectual property litigation. As both an attorney and an engineer, Johnny leverages his practical engineering experience and deep understanding of complex technical issues to help his clients obtain maximum results.