Can I file a wrongful death lawsuit in addition to a Texas workers’ compensation claim?

While there are some costs that can be recovered through filing a workers’ compensation claim, it is often not enough to cover the full extent of a family’s losses. While pursuing a wrongful death claim is a good option for many survivors, families need to be aware of some legal barriers that arise when filing these claims—especially if the employer is covered by Texas workers’ compensation insurance.

What Can I Recover in a Texas Wrongful Death Claim?

Families of workers who are killed on the job are forced to endure many emotional and financial difficulties. Wrongful death claims are filed on behalf of spouses, children, or parents of the deceased, and are meant to compensate these family members for their losses, including:

  • Lost income and future earning capacity
  • Funeral expenses
  • Loss of counsel (such as advice, child care, and guidance)
  • Loss of companionship and society
  • Loss of parental and spousal services
  • Loss of future inheritance
  • Mental and emotional anguish
  • Costs of therapy and grief counseling
  • Punitive damages (to punish the negligent party for causing the death)

Filing a Wrongful Death Lawsuit After an Injury at a Subscriber Employer

Under the Texas Workers Compensation Act, workers’ compensation is the “exclusive remedy” for recovering the cost of a workplace injury or death. In layman’s terms, this means that employers who subscribe to workers’ compensation cannot be named in injury or wrongful death lawsuits. However, there is an exception to this rule. If the employee was killed by an employer’s gross negligence or as a result of an intentional act or oversight of the employer, families can sue an employer for wrongful death. This lawsuit can be filed even if the employer has provided workers’ compensation benefits (although these benefits may be subject to subrogation after a successful wrongful death suit).

If someone other than the employer was responsible for the death of the employee, a family can file a third-party claim. Third-party claims can be filed regardless of whether the employer provided workers’ compensation or was a non-subscriber. Common parties in third-party injury claims include manufacturers of defective machinery, distributers of tools and supplies used on the job, at-fault drivers or subcontractors, and other negligent parties.

Filing a Wrongful Death Lawsuit Against a Non-Subscriber Employer

If a person is killed while working for an employer who does not carry workers’ compensation insurance, families have few limitations on their ability to file suit and receiver damages. Not only can survivors sue employers directly, they can also recover damages that are not awarded through the workers’ compensation system, such as pain and suffering and punitive damages.

Some Texas non-subscriber employers provide alternative accident and health benefits to injured workers and their families. While these benefits may offer some relief for survivors of a deceased worker, they are not legally a replacement for workers’ compensation, and families of the deceased may still sue the employer. In addition, survivors can file an additional lawsuit against any third parties (including co-employees) who contributed to the death.

Employers take a big risk when they fail to provide workers’ compensation. If the family of a deceased employee files suit, the employer could be on the hook for major damages—and the employer also loses the right to claim many defenses in the case. For example, employers cannot escape liability by claiming that the worker was partly to blame for the accident or that the employee should have been aware of the risk of injury. The employer may only place blame on the victim if evidence shows that the victim caused the accident on purpose or the victim was intoxicated at the time of the accident.

If you have lost someone you love in a work accident, our attorneys can explore your options to get you the maximum amount of allowable compensation for your losses. Contact the Packard Law Firm today to tell us more about your case in your free consultation. Anything you tell us is confidential, and we do not charge anything unless we win your case.