Texas Wrongful Death Claims After a Workplace Fatality

Whether the employer carried workers' compensation is the first question, and the answer changes almost everything that follows.

Short answer

Did the employer carry workers' compensation?

Start here, because the answer sorts every family into one of three paths.

Coverage is checked as of the date of death. A staffing agency, a parent company, or a general contractor may have a coverage arrangement that a pay stub or a badge won't reveal. Ask for these records early:

• the comp carrier's name and the policy dates, which show whether the exclusive-remedy rule applies;
• staffing, subcontract, and site agreements, which show who employed the worker and who controlled the task;
• the employer's notice of non-coverage, if there is one, since nonsubscribers must notify the state under § 406.004.

How do the different family groups compare?

The three remedies don't go to the same people, which can surprise parents.

Comp death benefits equal 75 percent of the employee's average weekly wage under § 408.181(b), subject to the statutory maximum. Burial benefits are capped at $10,000 under § 408.186. Our guide on who can file a Texas wrongful death claim covers the chapter 71 groups.

Take a 41-year-old warehouse lead who dies, leaving a wife, two children, and his mother:

• If his employer had comp coverage, benefits go to the wife and children, and only they could pursue the gross negligence claim.
• If his employer was a nonsubscriber, his wife, children, and mother can each bring a wrongful death claim against it.

What changes when the employer is a nonsubscriber?

Section 406.033 takes away some defenses but not all of them. A nonsubscriber can't argue that the worker was contributorily negligent, assumed the risk, or was hurt by a coworker's negligence. It can still defend on intoxication or an intentional self-injury under § 406.033(c). Your family still has to prove the employer was negligent under § 406.033(d). And a waiver the worker signed before the injury is void under § 406.033(e), so hiring paperwork can't give up the claim.

Austin v. Kroger Texas, L.P. adds three points to that:

1. Losing the common-law defenses doesn't remove the employee's burden to prove a duty. The family still has to show the employer owed a duty for the hazard involved.
2. No duty to warn about obvious or known hazards. An employer generally doesn't have to warn a worker about a premises hazard that's open and obvious or already known to the worker, with two narrow exceptions. A claim built only on a spill the worker saw may fail.
3. Equipment is different. A claim that the employer didn't provide safe, necessary equipment doesn't need contemporaneous negligent activity, so missing tools, training, or gear can support a separate theory.

When can a family claim gross negligence?

Gross negligence under § 41.001(11) has two parts. Viewed from the employer's position at the time, the act or omission must have involved an extreme degree of risk. And the employer must have actually known about that risk and gone ahead with conscious indifference to worker safety. Your family has to prove it by clear and convincing evidence, and the jury has to be unanimous under § 41.003. Exemplary damages are capped by § 41.008(b) unless an exception in § 41.008(c) applies.

Picture a worker killed while clearing a jam on a press whose guard came off weeks earlier. Investigators would want answers to questions like these:

• Who took the guard off, and when?
• Who walked past the press while it ran without one?
• Did anyone order the line to keep running?
• Is there a text telling crews to skip the lockout step to meet a deadline?

An agency safety citation can point to those facts, but it isn't a civil finding of gross negligence. The separate article on gross negligence and exemplary damages in this hub, now in preparation, covers the standard in more depth.

Who else might be responsible?

Someone other than the employer may share the blame. Think of the equipment maker that sold a press without an interlock to stop it while the guard was open, or a crane operator from a different company who drops a load. A refinery owner may control the unit where a contractor's employee dies. A delivery truck from another company may back over a worker in a loading yard.

Chapter 417 of the Labor Code sets the money rules for that kind of claim:

• Section 417.001(a) lets your family take comp benefits and sue the third party at the same time.
• Under § 417.001(b), the comp carrier is subrogated. It's repaid from the recovery, less the reduction tied to the employer's percentage of responsibility.
• Section 417.002(a) sends the net recovery first to repay benefits the carrier paid, so your settlement figure isn't the amount you keep.
• Section 417.002(b) treats any excess as an advance against future benefits, so benefit checks may pause until it's used up.

Frequently asked questions

Can parents recover if the employer had comp coverage? Parents may qualify for some comp benefits in limited cases. They aren't in the group allowed to seek exemplary damages under § 408.001(b).

How long do we have to file? A wrongful death suit is generally due two years from the death under § 16.003. Comp claims and notices have their own deadlines.

The company called my husband an independent contractor. Does that end it? No. A label on a form doesn't settle employment or coverage. The contracts and who controlled his work do.

Will a third-party settlement cut off comp benefits? It can, because the excess is treated as an advance against future benefits. Ask for the numbers before agreeing.

More guides are in the Texas Wrongful Death Knowledge Hub, including how wrongful death proceeds are divided.

Legal sources

• Tex. Lab. Code § 408.001
• Tex. Lab. Code §§ 408.181, 408.182, 408.186
• Tex. Lab. Code § 406.033
• Tex. Lab. Code §§ 417.001, 417.002
• Tex. Civ. Prac. & Rem. Code §§ 41.001, 41.003, 41.008
• Austin v. Kroger Texas, L.P., 465 S.W.3d 193 (Tex. 2015)

This article is general information about Texas law, not legal advice about a particular case. Results depend on the facts, the evidence, the court and the law that applies. Reading it does not create an attorney-client relationship.

Families who need grief programs, funeral and survivor benefit help, or a needs assessment can use our Wrongful Death and Family Support Center.