If employers with worker’s compensation insurance are immune from employee lawsuits, how can they be sued for the wrongful death of an employee?

Employers that purchase worker’s compensation insurance policies which comply with the terms and conditions of the Texas Workers’ Compensation Act receive a grant of immunity from the ordinary negligence claims of their employees. However, the grant of immunity is not absolute and there are several exceptions. Employers are not immune from the claims of their employees based on the intentional acts or omissions of the employer. Furthermore, employers are not immune from punitive damages for the grossly negligent conduct of the employer which causes the death of an employee. These claims are not really “Wrongful Death” claims. Gross negligence death claims seeking punitive damages are often referred to as “Employers B” cases. This is because the authority for these claims comes from Subpart (B) of Texas Labor Code Section 408.001 which authorizes the spouse and heirs of the body of a deceased worker to bring a gross negligence claim against an employer seeking punitive damages.

Another way that a Texas employer might be responsible for damages in connection with the death of an employee is if the employer did not maintain workers’ compensation insurance. In such a situation the employer is sued for both wrongful death and survival claims pursuant to the provisions of Texas Civil Practice and Remedies Code Section 71. Such a claim is no different from any other wrongful death and survival claim except that a nonsubscriber employer may not assert the common law defenses of assumption of the risk or contributory negligence.

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