WHY SMART EMPLOYERS OPT OUT FROM TEXAS WORKERS COMPENSATION COVERAGE UNDER V.T.C.A. LABOR CODE (A)

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1 WHY SMART EMPLOYERS OPT OUT FROM TEXAS WORKERS COMPENSATION COVERAGE UNDER V.T.C.A. LABOR CODE (A) KIRK D. WILLIS 1 I. INTRODUCTION Under the Texas Workers Compensation Code, an employer may elect to obtain workers compensation insurance coverage. 2 However, an 1. Kirk D. Willis is the Managing Member of The Willis Law Group, PLLC in Dallas, Texas. His practice is primarily defense litigation. He is Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization. He is a graduate of Texas Southern University, Thurgood Marshall School of Law. 2. TEX. LAB. CODE ANN (a) (West 2012). Workers compensation laws provide compensation and payment of medical care to employees injured on the job. This compensation system is no fault under which qualified employees are guaranteed compensation, but are then prohibited from suing employers for their injuries. Each of the fifty States and the District of Columbia have exacted some sort of workers compensation statute. E.g., Alabama: ALA. CODE (2012); Alaska: ALASKA STAT (2012); Arizona: ARIZ. REV. STAT. ANN , , (2012); Arkansas: ARK. CODE ANN , , (2012); California: CAL. LAB. CODE 3300, (West 2012); Colorado: COLO. REV. STAT , , (2012); Connecticut: CONN. GEN. STAT , c (2012); Delaware: DEL. CODE. ANN. tit. 19, (West 2012); District of Columbia: D.C. CODE (2012); Florida: FLA. STAT , (2012); Georgia: GA. CODE ANN to -5, , (2012); Hawaii: HAW. REV. STAT , 386-4, (2012); Idaho: IDAHO CODE ANN to -213 (2012); Illinois: 820 ILL. COMP. STAT. 305/1, 305/3 (2012); Indiana: IND. CODE , , (2012); Iowa: IOWA CODE 85.1, 85.1A (2012); Kansas: KAN. STAT. ANN , (2012); Kentucky: KY. REV. STAT. ANN , , , (West 2012); Louisiana: LA. REV. STAT. ANN. 23:1034, 23:1035, 23:1045, 23:1046, 23:1047 (2012); Maine: ME. REV. STAT. tit. 39-A, 102 (2012); Maryland: MD. CODE ANN., LAB. & EMPL , to -223, 9-227, to -404 (West 2012); Massachusetts: MASS. GEN. LAWS ch. 152, 1, 25A, 69 (2012) ( [E]mployees may recover medical expenses and lost wages resulting from work-related injuries without having to prove the negligence of their employer. In exchange, employees cannot bring civil suits against their employers to recover damages, such as damages for pain and suffering. ); Michigan: MICH. COMP. LAWS , , , , , , ; Minnesota: MINN. STAT , , (2012); Mississippi: MISS. CODE ANN , , (2012); Missouri: MO. REV. STAT , , (2012); Montana: MONT. CODE. ANN , , , (2012); Nebraska: NEB. REV. STAT , (2012); Nevada: NEV. REV. STAT. 616A.110, 616A.220, 616B.656 (2012); New Hampshire: N.H. REV. STAT. ANN. 281-A:2, 281-A:3 (2012); New Jersey: N.J. STAT. ANN. 34:15-7, 34:15-9, 34:15-36, 34:15-43, 34:15-70 (West 2012); New Mexico: N.M. STAT. ANN , , , , to -16 (2012); New York: N.Y. WORKERS' COMP. LAW 2, 3 (McKinney 2012); North Carolina: N.C. GEN. STAT (2012); North Dakota: N.D. CENT. Code , to -33,

2 118 THURGOOD MARSHALL LAW REVIEW [Vol. 38:117 employer is responsible for work-related injuries of its employees under common law principles of negligence if it is a non-subscriber under workers compensation law. 3 The Supreme Court of Texas in Kroger Co. v. Keng held that a nonsubscriber to workers compensation insurance is not entitled to jury questions regarding its employees alleged comparative responsibility for injuries, in accordance with Texas Labor Code Annotated (a), which prohibits certain common law defenses by nonsubscribing employers. 4 Texas is the only state that, except for four (4) categories of employees, does not require employers to carry workers compensation insurance. The following categories, however, must participate in the compensation system: (1)... contractors and subcontractors who enter into a building or construction contract with the state or any political subdivision... ; (2) motor carriers under the authority of the Texas Railroad Commission; (3) liquefied gas dealers; and (4) most state and government employers. 5 This aberration procedure intensifies the discussion on some fundamental issues of civil rights and the rights of workers. From the employee s standpoint, regarding the right to sue for negligence against non-subscribing employers, the question is whether this Act actually provides more flexibility for on-the-job injuries. In contrast, from the (2012); Ohio: OHIO REV. CODE ANN (West 2012); Oklahoma: OKLA. STAT. ANN. tit. 85, 2.1, 2.6 (repealed 2011); Oregon: OR. REV. STAT , , , , (2012); Pennsylvania: 77 PA. CONS. STAT , 676 (2012); Rhode Island: R.I. GEN. LAWS , to -8, to -1.1 (2012); South Carolina: S.C. CODE ANN , , (2012); S.C. CODE ANN , (repealed 2007); South Dakota: S.D. CODIFIED LAWS to -3, , , (2012); Tennessee: TENN. CODE ANN , (2012); Texas: TEX. LAB. CODE ANN , , , (West 2012); Utah: UTAH CODE ANN. 34A-2-103, 34A (West 2012); Vermont: VT. STAT. ANN. tit. 21, 601, 616 (2012); Virginia: VA. CODE ANN (2012); Washington: WASH. REV. CODE , , (2012); West Virginia: W. VA. CODE (2012); Wisconsin: WIS. STAT , , (2012); Wyoming: WYO. STAT. ANN , (2012). 3. Brookshire Bros. v. Lewis, 997 S.W.2d 908, 912 (Tex. App. Beaumont 1999, pet. denied). 4. Kroger Co. v. Keng, 23 S.W.3d 347, 352 (Tex. 2000); see also Trek C. Doyle & Jarrett R. Andrews, Comparative Responsibility in Nonsubscriber Litigation Revisited After Kroger Co. v. Keng, 38 ST. MARY S L.J. 443, (2007). 5. JOE F. CANTERBURY, JR. & ROBERT J. SHAPIRO, TEX. CONSTR. LAW MANUAL 3:19 (3d ed. 2012).

3 2012] WORKERS COMPENSATION INSURANCE COVERAGE 119 employer s standpoint, the decision not to choose workers compensation is one that might have civil rights concerns. [T]he injury must arise out of and in the course and scope of employment. Course and scope of employment is defined as: an activity of any kind or character that has to do with and originates in the work, business, trade, or profession of the employer and that is performed by an employee while engaged in or about the furtherance of the affairs or business of the employer. The term includes an activity conducted on the premises of the employer or at other locations. Transportation to and from the place of employment is not included in course and scope of employment unless: (1) the transportation is furnished as a part of the contract of employment or is paid for by the employer; (2) the means of the transportation are under the control of the employer; or (3) the employee is directed in the employee s employment to proceed from one place to another place. An employer who terminates workers' compensation insurance coverage must file a written notice with the Texas Department of Insurance not later than 10 days after the date on which the employer notified the insurance carrier to terminate the coverage. The notice must include a statement certifying the date notice was or will be provided to affected employees. Affected employees must be notified of the termination not later than 15 days after the date on which the termination of the coverage takes effect. General contractors may utilize subcontractors who are nonsubscribers to workers compensation on private projects in Texas without risk of exposure from an injured employee of that subcontractor, provided that the subcontractor is not an employee as defined by the statute. A subcontractor and the subcontractor s employees are not employees of the general contractor for purposes of the statute if the subcontractor[: (1)] is operating as an independent contractor[;] and [(2)] has entered into a written agreement with the general contractor that evidences a relationship in which the subcontractor assumes the responsibilities of an employer for the performances of work. 6 An injury sustained while the workman is performing the dut[ies] he is employed to perform is considered to be received in the course of 6. Id. (footnotes omitted).

4 120 THURGOOD MARSHALL LAW REVIEW [Vol. 38:117 employment, within the Workmen s Compensation Act. 7 [An injury] arises out of the employment when there is apparent to the rational mind... a causal connection between the conditions under which the work is required to be performed and the resulting injury. 8 The causative danger must be peculiar to [his] work, for an employee s injury to arise out of employment within the Workmen s Compensation Act. 9 Additionally, the employee s injury need not be foreseen or expected. 10 There must be a contract for hire, either expressed or implied, between the employee and the employer, for there to be liability under the workers compensation law. 11 The contract [between parties] must be one [that] creates the relation of master-servant rather than that of independent contractor-contractee for a claimant to recover workers compensation benefits. 12 A workers compensation claimant must also establish his relationship as the employee of the subscriber. 13 Numerous circumstances are relevant in determining the existence of an employer-employee relationship, such as the right to hire and discharge, the obligation to pay wages, the carrying of the worker on the social security and income tax withholding rolls, and the furnishing of tools, but the ultimate and decisive test is the right of the alleged employer to control the details of the worker's performance. 14 II. NON-SUBSCRIBERS UNDER V.T.C.A. LABOR CODE (A) A nonsubscriber is an employer with employees subject to the Texas Workers Compensation Act that elects to optout of the Act.... Texas is the only state where [the] employers have the option... to subscribe 7. Jasper v. Texas Emp rs Ins. Ass n, 206 S.W.2d 646, 649 (Tex. Civ. App. Waco 1947, no writ) (quoting In re McNicol, 102 N.E. 697, 697 (Mass. 1919)); see also TEX. LAB. CODE ANN (12) (West 2012). 8. Jasper, 206 S.W.2d at 649 (quoting In re McNicol, 102 N.E. at 697) (internal quotation marks omitted). 9. Id. (quoting In re McNicol, 102 N.E. at 697). 10. Id. (quoting In re McNicol, 102 N.E. at 697). 11. U.S. Fid. & Guar. Co. v. Goodson, 568 S.W.2d 443, (Tex. Civ. App. Texarkana 1978, writ refused n.r.e.). 12. Id. at 446 (citing Lowry v. Anderson-Berney Bldg. Co., 161 S.W.2d 459, 462 (Tex. 1942)). 13. Id. (citing Indus. Indem. Exch. v. Southard, 160 S.W.2d 905, 906 (Tex. 1942)). 14. Id.

5 2012] WORKERS COMPENSATION INSURANCE COVERAGE 121 to worker s compensation [coverage and] since 1913[,] participation under the Act has been voluntary. 15 During the 1990s when workers compensation expenses increased, non-subscription became more popular and today, about [one-third] of Texas employees work for non-subscribing employers. 16 The Texas Labor Code specifically prohibits two types of employers from not subscribing to workers compensation: (1) public employers; and (2) general contractors involved in a building or a construction contract with a governmental entity. Further, individuals employed in certain federally-regulated industries are subject to workers compensation schemes that are not elective. Examples include: [p]ersons engaged in maritime employment, such as ship workers and longshoremen, subject to the Longshore and Harbor Workers Compensation Act in addition to the Texas statute; [m]asters of, or seamen on, vessels, engaged in interstate or foreign commerce, subject to the Jones Act; and Employees of interstate rail carriers, covered by the Federal Employer s Liability Act (FELA). Finally, although not prohibited by statute, some employers are mandated by contract to carry workers compensation coverage. This is common in the construction industry and similar situations in which there are several contractors working at a particular work site. 17 Texas is the only state in which workers compensation coverage is optional. A 1996 survey revealed that 39% of Texas employers, who employ 20% of the workforce, opted out of workers compensation coverage. Non-subscribing employers often develop alternative benefit plans for their employees.... A nonsubscribing employer has unfettered discretion in determining the amount of benefits it will provide employees under an alternative plan. In exchange for these benefits,... the worker is prevented from presenting his claims to a jury by being required either to waive his right to sue or to submit his claims to binding arbitration. 15. Jay M. Wallace, Nonsubscription Under the Texas Workers Compensation Act, 37 ADVOC.: INS. AND LITIG. 65, 65 (2006) (citing TEX. LAB. CODE ANN (a) (West 2012)), available at 16. Id. 17. Id. (footnotes omitted).

6 122 THURGOOD MARSHALL LAW REVIEW [Vol. 38: The Texas Supreme Court has yet to address the issue under the reformed workers compensation statute. The law is clear as it existed prior to the reform. As one court stated in 1980: The statute, on the one hand, takes away from the subscribing employer his common law defenses, and, on the other, it limits the amount of compensation recoverable by the employee. If, as in the case at bar, this balance is tipped so that the employee s benefits under the statute are substantially reduced, the clear intent of the legislature is thwarted. Thus, the contractual provision in question must be declared invalid as against public policy. 18 In Texas Workers Compensation Commission v. Garcia, the Supreme Court of Texas disagreed with the court of appeals holding that the optout provision [of the Texas Workers Compensation Act] violated equal protection and due course of law because it allows new employees hired after the effective date of the Act to avoid its coverage, without affording existing employees a similar opportunity. 19 [T]he State has a legitimate interest in requiring employees to make a binding election at the beginning of their employment. This limitation allows carriers to set an appropriate premium and allows employers to budget the cost of compensation insurance. 20 III. BENEFITS OF REMAINING A NON-SUBSCRIBER The biggest advantage to nonsubscribing to workers compensation is that an employer manages the insured employee s medical costs and return to work and has control of the employee s medical providers. Approved medical providers under a non-subscriber s occupational injury benefit plan are chosen based on their expertise... [and] are more likely to make well-reasoned decisions regarding the necessary treatment for the employee and release of an employee to return to work. The plan s design... can also be designed to encourage employees with a financial incentive to return to work sooner Chief Justice Phil Hardberger, Texas Workers Compensation: A Ten-Year Survey Strengths, Weaknesses, and Recommendations, 32 ST. MARY S L.J. 1, 6 7, 12 (2000) (footnotes omitted) (quoting Hazelwood v. Mandrell Indus. Co., 596 S.W.2d 204, 206 (Tex. Civ. App. Houston [1st Dist.] 1980, writ ref d n.r.e)). 19. Tex. Workers' Comp. Comm'n v. Garcia, 893 S.W.2d 504, 532 (Tex. 1995). 20. Id.

7 2012] WORKERS COMPENSATION INSURANCE COVERAGE 123 As a nonsubscriber,... [e]mployers are directly... in control of costs..., [which can] create[] heightened safety awareness and improved safety attitudes. 21 An employer can compel arbitration based on an employee s participation in an occupational injury benefit plan offered by the employer. 22 Also, the Supreme Court of Texas has held that the statute forbidding discharge of an employee out of retaliation provides protection only for claimants proceeding or testifying under the Workers Compensation Act. 23 In Smith v. Hoover Company, Plaintiff Smith did not report an injury he received for several days while working for the Defendant Hoover Company. 24 Hoover carried its own version of an occupational injury benefit program (the HELP Plan ) instead of traditional workers compensation insurance. 25 In exchange for a waiver of their right to sue for negligence, Hoover personnel became eligible to participate in the HELP Plan. 26 Defendant denied... [plaintiff s] claim as untimely because the Plaintiff didn t report his injury by the end of the shift as required by the HELP Plan. 27 Smith opposed Hoover s motion for summary judgment, arguing that the waiver [was] void as a matter of law because it contravenes Texas public policy as set forth in the workers compensation scheme. 28 The Court granted Defendant s motion for summary judgment, ruling that [t]he Texas Workers Compensation Act neither clearly prohibits nor clearly allows voluntary pre-injury employee elections to participate in nonsubscribing employers benefit plans in lieu of exercising common-law remedies. 29 Similarly, in Lawrence v. CDB Services, Inc., the Supreme Court of Texas held that employers do not violate public policy in offering voluntary pre-injury employee elections as opposed to allowing employees to exercise 21. Wallace, supra note 15, at Unit Tex. Drilling, L.L.C. v. Morales, No CV, 2010 WL , at *9 (Tex. App. Corpus Christi July 29, 2010, pet. denied) (mem. op., not designated for publication). 23. Tex. Mexican Ry. v. Bouchet, 963 S.W.2d 52, 55 (Tex. 1998). 24. Smith v. Hoover Co., EP-00-CA-150-DB, 2001 U.S. Dist. LEXIS 6142, at *2 (W.D. Tex. Apr. 12, 2001). 25. Id Id. at * Id. at * Id. at * Id. at *10 (quoting Lawrence v. CDB Servs., Inc., 44 S.W.3d 544, 554 (Tex. 2001)).

8 124 THURGOOD MARSHALL LAW REVIEW [Vol. 38:117 their traditional rights at common law. 30 In Cupit v. Walts, the Fifth Circuit Court of Appeals held that [a]n agreement between a non-subscribing employer and its employees whereby the non-subscribing employer contractually obligates itself to provided [sic] benefits to its employees equal to or greater than those provided under the Texas Workers Compensation Act is a valid and enforceable contract. 31 In short, the nonsubscriber s alternate compensation plan is valid. 32 In a similar situation where a nonsubscriber provided an alternate plan, the court held that the client had not established that it had workers compensation insurance coverage for the worker s injury, which [was] a prerequisite to the application of the exclusive remedy provision in Texas Labor Code (a). 33 In Hodge v. BSB Investments, Inc., the Plaintiff brought a wrongful discharge action filed pursuant to the Texas Workers Compensation Act against a non-subscribing employer. 34 The Court held that a claim against a nonsubscribing employer, under a statute that prohibited employers from discharging or discriminating an employee who, in good faith, instituted a claim under the Workers Compensation Act, constituted a claim under the Workers' Compensation Act. 35 The Court also held, an employee is not deemed to have notice that an employer is a nonsubscriber. 36 Further, in Holiday Hills Retirement and Nursing Center, Inc. v. Yeldell, Bertha F. Yeldell brought suit against Holiday Hills Retirement and Nursing Center, Inc., a non-subscriber to Worker's Compensation, for personal injuries she sustained while employed at Holiday Hills as a charge nurse when a coffee urn overturned, spilling scalding hot coffee over her abdomen and legs. 37 The Court held there was no duty on the part of appellant to supplement his answers regarding non-expert witnesses, and furthermore, if there was such a duty, the trial court, in this particular instance, abused its discretion in refusing the proffered testimony Lawrence, 44 S.W.3d at 551 (Tex. 2001). 31. Cupit v. Walts, 90 F.3d 107, 109 (5th Cir. 1996) (quoting Lozano v. Ingram Mfg. Co., No. SA-88-CA-0453, 1989 WL , at *3 (W.D. Tex. Apr. 27, 1989)). 32. Id. at Garza v. Exel Logistics, Inc., 161 S.W.3d 473, 481 (Tex. 2005). 34. Hodge v. BSB Invs., Inc., 783 S.W.2d 310, 311 (Tex. App. Dallas 1990, writ denied). 35. Id. at Id. 37. Holiday Hills Ret. & Nursing Ctr. v. Yeldell, 686 S.W.2d 770, 771 (Tex. App. Fort Worth 1985, writ granted). 38. Id. at 773.

9 2012] WORKERS COMPENSATION INSURANCE COVERAGE 125 The Court also held that the issue as to whether the employee was acting in course and scope of her employment was a fact question... which should have been submitted to the jury for determination. 39 Lastly, the Court found that in employees' suits against a non-subscribing employer to the Compensation law, comparative negligence is not applicable and should not be submitted to the jury. 40 Last, in Hernandez v. Honish, survivors of a deceased employee sued under a negligence theory against the employer. 41 The Court held that since the defendant (1)... was never a public employer; (2)... was never required to obtain workers' compensation insurance coverage; (3)... never elected to obtain workers' compensation insurance coverage; and (4)... never employed five or more employees not exempt from workers' compensation insurance, there was no duty to provide a safe workplace under Texas Labor Code The Court also held that the Plaintiff [did] not raise a genuine issue of material fact on the issue of proximate cause. 43 IV. INJURED EMPLOYEES CAN SUE FOR NEGLIGENCE IF THE EMPLOYER IS A NON-SUBSCRIBER As a nonsubscriber, the employer is subject to negligence liability associated with a work injury, which includes the available range of damages associated with a typical negligence claim. In a negligence lawsuit, the nonsubscriber cannot use the defenses of contributory negligence, negligence by a fellow employee, or assumption of the risk.... The employee can recover tort damages... including punitive damages. The available damages also include damages for lost earning capacity, pain and suffering, and mental anguish. The insurance carrier... bears the costs of defense as well as any compensation award. In contrast, the non-subscribing employer is the party defendant in a negligence action..., but can shift the costs of defense, settlement, or payment of a judgment through obtaining 39. Id. at Id. at Hernandez v. Honish, No CV, 2003 WL , at *2 (Tex. App. Corpus Christi July 24, 2003, no pet.) (mem. op., not designated for publication). 42. Id. at * Id. at *4.

10 126 THURGOOD MARSHALL LAW REVIEW [Vol. 38:117 appropriate liability insurance that covers nonsubscriber claims..... An injured worker must prove two elements to establish that he or she was in the course and scope of their employment: (1) the injury must have occurred while the employee was engaged in or about the furtherance of his employer s affairs or business; and (2) the injury was of a kind and character that had to do with and originated in the employer s work, trade, business, or profession..... The plaintiff employee must also prove that the employer s negligent acts proximately caused the injury. Proximate cause includes... cause in fact and... foreseeability. Proximate Cause means that cause which, in a natural and continuous sequence, produces an event, and without [that] cause such event would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that a person using ordinary care would have foreseen that the event, or some similar event, might reasonably result.... There may be more than one proximate cause of an event [I]n Keng v. Kroger,... the Texas Supreme Court rejected the statutory defense of comparative responsibility, finding that it should be included under the common law... defenses which a nonsubscriber is deprived of under the Texas Labor Code. The Court [concluded]... that the Texas Labor Code deprives nonsubscribing employers of their defenses as an incentive to subscribe to Texas [W]orkers [C]ompensation. Therefore, a defense such as comparative responsibility as to the plaintiff employee is also not available to nonsubscribers. 44 The Court held that a nonsubscrib[er]... is not entitled to a jury question [regarding] its employee s alleged comparative responsibility. 45 A person may not discharge or in any other manner discriminate against an employee because the employee has: (1) filed a workers' compensation claim in good faith; (2) hired a lawyer to represent the employee in a claim; (3) instituted or caused to be instituted in good faith a proceeding under Subtitle A; or 44. Wallace, supra note 15, at Kroger Co. v. Keng, 23 S.W.3d 347, 347 (Tex. 2000).

11 2012] WORKERS COMPENSATION INSURANCE COVERAGE 127 (4) testified or is about to testify in a proceeding under Subtitle A. 46 The employee must prove negligence and produce evidence that the employer breached the duty to provide a safe and properly supervised workplace. 47 In Barton v. Whataburger, Inc., the Court held since the estate did not show that the aggravated robbery, which resulted in the employee s murder, was foreseeable, the restaurant possessed no duty to exercise preventive action. 48 An employee can also elect to be covered by the employer s occupational plan and thus waive his rights to the employer for negligence arising in the course of employment. 49 In Brookshire Bros., v. Lewis, in an employee s action for a work injury, the Court held that denying a nonsubscribing employer s request for an explanatory instruction concerning the respective duties of the employer and employee was not an abuse of discretion, when a proper instruction had already been given on standard of care and negligence. 50 However, defendant s plan in Reyes v. Storage & Processors, Inc., which limited benefits more than those provided by workers' compensation insurance, were deemed to violate[] public policy and as a result the waiver [plaintiff] signed [was]... void and unenforceable. 51 In SSHG, LLC v. Lewis, an employee who was injured while using a wood planer sued the non-subscribing employer based on negligence. 52 The employee had to prove the employer s negligence or that an agent of the employer was acting within the general scope of the agent s employment 46. TEX. LAB. CODE ANN (West 2011). 47. Amrhein v. La Madeleine, Inc., No CV, 2009 WL , at *5 6 (Tex. App. Dallas June 30, 2009, pet. denied) (mem. op., not designated for publication); see also Harrison v. Harrison, 597 S.W.2d 477, 479 (Tex. Civ. App. Tyler 1980, writ ref d n.r.e.) (jury found that the employer failed to furnish the employee reasonably safe and suitable machinery, which was the proximate cause of the injury). 48. Barton v. Whataburger, Inc., 276 S.W.3d 456, 469 (Tex. App. Houston [1st Dist.] 2008, pet. denied). 49. Beldon Roofing & Remodeling Co. v. Tanner, No CV, 1997 WL , at *1 (Tex. App. San Antonio May 28, 1997, orig. proceeding) (per curiam, not designated for publication). 50. Brookshire Bros., v. Lewis, 997 S.W.2d 908, 921 (Tex. App. Beaumont 1999, pet. denied). 51. Reyes v. Storage & Processors, Inc., 995 S.W.2d 722, 729 (Tex. App. San Antonio 1999, pet. denied). 52. SSHG, L.L.C. v. Lewis, No CV, 2008 Tex. App. LEXIS 6945, at *3 (Tex. App. Waco Sept. 10, 2008, pet. denied) (mem. op., not designated for publication).

12 128 THURGOOD MARSHALL LAW REVIEW [Vol. 38:117 under Texas Labor Code Annotated (d). 53 The employer owed the employee a duty... to train him in the safe use of the planer and warn him of its danger. 54 In Payne v. Galen Hospital Corporation, the Plaintiff s argument raise[d] the dual-capacity doctrine. Under that doctrine, an employer normally shielded from liability by the workers compensation exclusive-remedy principle may become liable in tort to an employee if it occupies, in addition to its capacity as an employer, a second capacity that confers on it obligations independent of those imposed on it as an employer. 55 The Court held that the doctrine did not apply here because, in this situation, the Defendant hospital merely filled the Plaintiff s prescription because she worked there. 56 Before filling these prescriptions, the pharmacy verifies that the employee is a workers compensation claimant and that a doctor has ordered the prescription to treat a work-related injury. 57 In Illinois National Insurance Co. v. Hagendorf Construction Co., the plaintiff insurer filed a motion for summary judgment in its action seek[ing] a declaration that it owe[d] no duty to defend and/or indemnify [defendant insured] under a commercial business automobile policy in a personal injury lawsuit.... [The employee] allege[d] that he was a domestic employee of [the insured]. He [claimed] that..., during the course and scope of his employment, he was driving a vehicle owned by [the insured and]... that the brakes failed, causing a turn over and his eject[ion] from the car, which caused him severe injuries. He allege[d] that [the insured] was negligent in maintaining the vehicle, failing to repair the vehicle, and failing to provide a safe workplace. [The insured] contend[ed] that [a workers compensation exclusion]... entitle[d it] to... a declaration that there [was] no duty to defend or indemnify Id. at * Id. at * Payne v. Galen Hosp. Corp., 28 S.W.3d 15, 20 (Tex. 2000) (footnote omitted). 56. Id. at Id. at Ill. Nat l Ins. Co. v. Hagendorf Constr. Co., 337 F. Supp. 2d 902, 903 (W.D. Tex. 2004).

13 2012] WORKERS COMPENSATION INSURANCE COVERAGE 129 The court concluded that because the employee brought a negligence suit against his non-subscribing employer, the suit arose under the Texas Workers Compensation Act, Texas Labor Code Annotated Because the employee s lawsuit was completely provided for and described in the Workmen s Compensation Act, his claim was an obligation for which the insured might have been held liable under , and thus, the workers compensation exclusion applied. 60 Because the workers compensation exclusion applied, the insurer had no duty to indemnify the insured. 61 In Hulshouser v. Texas Workers Compensation Insurance Fund, Michael Hulshouser sued the Texas Workers' Compensation Insurance Fund (the Fund) for bad faith, asserting its denial and delay in compensating him for his initial hernia injury aggravated that condition. 62 The court of appeals affirmed the lower court s holding that any harm resulting from the Fund's delay in accepting compensability of the hernia condition was part of the compensation claim and thus barred by the exclusive remedy provision of the Texas Workers' Compensation Act. 63 A primary purpose of the Workers Compensation Act is to relieve employees injured on the job of the burden of proving their employer s negligence, and to provide prompt remuneration for their on-the-job injuries. Because of this purpose, the courts have liberally construed the Act in the employee s favor. A compensable injury is one that arises out of and in the course and scope of employment. To fully effectuate the Act s purpose to provide prompt and certain remuneration to injured employees, course and scope has been interpreted expansively to include additional injuries that result from treating on-the-job injuries. In exchange for prompt remuneration to the employee with no burden of proof as to negligence, the benefits under the Act provide the exclusive remedy for on-the-job injuries, prohibiting the employee from 59. Id. at Id. (quoting Figueroa v. Healthmark Partners, L.L.C., 125 F. Supp. 2d 209, 211 (S.D. Tex. 2000)). 61. Id. 62. Hulshouser v. Tex. Workers Comp. Ins. Fund, 139 S.W.3d 789, 790 (Tex. App. Dallas 2004, no pet.). 63. Id.

14 130 THURGOOD MARSHALL LAW REVIEW [Vol. 38:117 seeking common-law remedies from his employer, its agents, and coemployees. 64 In Garza v. Exel Logistics, Inc., [a] worker hired by a temporary employment agency was injured while performing tasks for the agency's client. 65 The Court held that since the client company did not establish that it [was] covered by workers' compensation insurance coverage, which is necessary to come within the exclusive remedy provision, it could claim the defense that would bar the worker s claim. 66 In Excel Corp. v. Reyes, for about a year, appellant s meat packing corporation had excess oil on meat trolleys, a USDA violation, after they were cleaned and returned to circulation in the plant. 67 Appellee worker was hired and trained and signed a safety checklist warning him of operating machinery without guards and to lock out equipment before doing repairs. 68 Appellees, who were the worker and his family, sued and won actual and exemplary damages of about $2 million, which the court affirmed. 69 As appellant had not pleaded contributory negligence in defense, contributory negligence could not establish an absence of foreseeability. 70 Although there was conflicting evidence about unplugging the blowers, malice was sufficiently shown to support punitive damages. 71 As appellant had an oil leak problem for a year, but still placed appellee worker in a room with unguarded fans without enough training, and made him alone responsible for wiping oil near the fans, malice was shown, which justified punitive damages for his loss of fingers. 72 The trial court, on appellant s motion, reduced the future earnings award and appellant could not challenge it; judgment and damages were affirmed. 73 In Werner v. Colwell, a worker brought a personal injury action against a nonsubscriber company under the Workers Compensation Act and her supervisor for a back injury. 74 The Plaintiff argue[d] that one man was 64. Id. at Garza v. Exel Logistics, Inc., 161 S.W.3d 473, 474 (Tex. 2005). 66. Id. 67. Excel Corp. v. Reyes, No CV, 2000 WL , at *2 (Tex. App. Amarillo Oct. 17, 2000, pet. denied) (not designated for publication). 68. Id. at * Id. at * Id. at * Id. at * Id. at *8, * Id. at *14, * Werner v. Colwell, 909 S.W.2d 866, (Tex. 1995).

15 2012] WORKERS COMPENSATION INSURANCE COVERAGE 131 sufficient to load meat but that two women were not, without presenting any evidence regarding the physical ability of these women or of [the Defendant]. 75 The Court held that [t]here [was] no evidence that two employees constituted an inadequate work force to do the required loading. 76 The Court also held that since the trustee was not named as a party to the suit..., the judgment rendered against her as trustee was improper. 77 V. PREEMPTION OF NEGLIGENCE LIABILITY 78 An employer s policy of paying benefits to its employees in the event of work-related injuries will constitute an employee of welfare benefit plan and be subject to the Employee Retirement Income and Security Act ( ERISA ). Such plans must comply with ERISA s provisions regarding reporting and disclosure, fiduciary responsibility, and administration and enforcement. Failure to comply with those requirements may result in criminal penalties or civil actions for enforcement.... [T]he consequences of ERISA coverage... benefit most nonsubscribers because of the extent to which ERISA preempts[]... state law, and the relatively limited relief available under ERISA. Section 514(a) of ERISA provides that with certain exceptions, the provisions of ERISA supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan.... If ERISA preempts a state law claim, the plaintiff may seek relief only under ERISA. ERISA preemption is usually quite beneficial, because under state law an employee normally may recover a whole range of different types of relief, such as punitive damages or damages for pain and suffering, and has the right to a jury trial. Under ERISA, punitive damages are not recoverable and the courts have traditionally held that no right to jury trial exists.... [In] Pilot Life [Insurance Co. v. Dedeaux], and prior cases[, it was] established that ERISA preempts state law causes of action for wrongful claims administration with respect to any employee benefit plan. Thus, ERISA should preempt any state-law claim against a nonsubscriber based on... allegation[s] that the employer 75. Id. at Id. 77. Id. at Wallace, supra note 15, at 69.

16 132 THURGOOD MARSHALL LAW REVIEW [Vol. 38:117 misrepresented the plan s coverage, or in some other way acted improperly in determining or paying claims Eurine v. Wyatt Cafeterias, Inc., involved claims by an injured employee against an employer that rejected Texas workers compensation coverage and implemented an occupational injury benefit plan for employees. [The court] initially held, in an opinion issued May 16, 1991, that because the employee s negligence claims sought compensation... that largely overlapped with the type of benefits provided under the employer s benefit plan, such claims related to the plan and were preempted by ERISA. A similar ruling was handed down in Benson v. Wyatt Cafeterias, Inc., on July 20, However, both Courts subsequently reconsidered their rulings and both opinions were vacated. The Courts ultimately concluded that an action for negligence against an employer in its capacity as an employer, rather than in is [sic] capacity as administrator of an employee benefit plan, has only a remote connection to the purposes of ERISA. This same conclusion was also reached... in the case of Nunez v. Wyatt Cafeterias, Inc. The injured employees in all three of these cases were allowed to continue to pursue their negligence claims against the employer in state court.... [C]urrent case law indicates that ERISA will not [automatically] preempt an employee s negligence action against the nonsubscriber for personal injuries in the workplace merely because the nonsubscriber establishes a benefit plan that is subject to ERISA. 79 In Hernandez v. Jobe Concrete Products, Inc., the plaintiff injured his back in the course of his employment and later quit after being required to perform arduous manual work upon his return. 80 After his benefits under his employer s injury plan ceased, the plaintiff sued, alleging amongst other things, retaliation, negligence, [and] breach of contract. 81 The Court held that the employer s occupational injury plan was an ERISA plan subject to federal preemption... [and does not] fall[] within the exception to preemption reserved for state workers compensation plans. 82 In Nunez v. Wyatt Cafeterias, Inc., the plaintiff brought a negligence action for damages he... sustained by reason of injuries he suffered as the result of a slip-and-fall accident he had on defendant's premises while he 79. Id. at Hernandez v. Jobe Concrete Prods., Inc., 282 F.3d 360, 361 (5th Cir. 2002). 81. Id. 82. Id.

17 2012] WORKERS COMPENSATION INSURANCE COVERAGE 133 was engaged in work as an employee of defendant. 83 The defendant was not subscribed to a policy of workers' compensation insurance of a kind contemplated by Texas law and claimed that the preemption section of ERISA... operate[d] on plaintiff's action and thereby causes there to be federal question subject matter jurisdiction. 84 The Court held that since there was no relation between plaintiff's action and the Plan..., there [was] no preemption [by ERISA] and there [was] no showing [of]... subject matter jurisdiction. 85 In In re Poly-Am., L.P., a former employee sought a writ of mandamus... []asserting his argument that provisions of the arbitration agreement were substantively unconscionable. 86 The Supreme Court [held] that the arbitration agreement's provision that eliminates available remedies under the Workers' Compensation Act [was] unenforceable, but... [the] provision [was] severable from the arbitration agreement as a whole and conditionally grant[ed the defendant's] writ of mandamus. 87 In Pilot Life Insurance Company v. Dedeaux, the Plaintiff instituted a diversity action against [Defendant] in Federal District Court, alleging tort and breach of contract claims under Mississippi common law for [Defendant]'s failure to pay benefits under the insurance policy. 88 The Supreme Court held that ERISA pre-empt[ed]... [the] suit under state common law for alleged improper processing of his claim for benefits under the ERISA-regulated benefit plan. 89 In Sommers Drug Stores Company Employee Profit Sharing Trust v. Corrigan Enterprises, Inc., [t]he Sommers Drug Stores Company Employee Profit Sharing Trust sued Walter N. Corrigan and Corrigan Enterprises, Inc., in United States District Court for the Western District of Texas, alleging that the defendants had breached their fiduciary duty to the Trust under ERISA and under state common law. 90 The Court held that punitive damages under ERISA [are not recoverable] against a trustee for breach of fiduciary duty Nunez v. Wyatt Cafeterias, Inc., 771 F. Supp. 165, 166 (N.D. Tex. 1991). 84. Id. at Id. at In re Poly-Am., L.P., 262 S.W.3d 337, 345 (Tex. 2008). 87. Id. 88. Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 41 (1987). 89. Id. 90. Sommers Drug Stores Co. Emp. Profit Sharing Trust v. Corrigan Enters., 793 F.2d 1456, 1457 (5th Cir. 1986). 91. Id. at 1463.

18 134 THURGOOD MARSHALL LAW REVIEW [Vol. 38:117 In McDonald v. Artcraft Electric Supply Company, the plaintiff s state law claims [were] based on [his] termination which was allegedly motivated by a desire to avoid obligations under an ERISA plan. 92 With the exception of Mr. McDonald s claim for wages due and owing, the Court held that the plaintiff s remaining claims were preempted by ERISA. 93 The Court also held that [e]ven if ERISA did purport... to preclude a jury trial for traditionally legal causes of action, it could not do so; Plaintiffs have a constitutional right to trial by jury under the Seventh Amendment for the claims they have brought in this action. 94 VI. CIVIL RIGHTS CONCERNS There is authority that the exclusivity provisions of workers compensation acts do not preclude statutory civil rights claims. However, it has been held that by accepting workers compensation benefits, the employee waived the right to pursue a civil action for damages for mental and emotional injuries inflicted by sexually discriminating practices under a state civil rights act. 95 Texas, of course, with their opt-out provision, logically creates a stronger case for not violating the injured plaintiff s civil rights. 96 The fact is that other states with regular workers compensations statutes are more rife with civil rights concerns than the Texas opt-out statute. 97 The Civil Rights Act of 1964 is a comprehensive federal law prohibiting discrimination in many settings, including elections, housing, 92. McDonald v. Artcraft Elec. Supply Co., 774 F. Supp. 29, 30 (D.D.C. 1991). 93. Id. 94. Id. at J.D. LEE & BARRY A. LINDAHL, MODERN TORT LAW: LIABILITY & LITIGATION 43:32 (2d ed. 2012). 96. See generally ROBERT N. COVINGTON, EMPLOYMENT LAW IN A NUTSHELL (3d ed. 2009) (discussing the interaction of workers compensation and employment law with civil rights); JACK B. HOOD, BENJAMIN A. HARDY, JR. & HAROLD S. LEWIS, JR., WORKERS COMPENSATION AND EMPLOYEE PROTECTION LAWS IN A NUTSHELL 26 42, (4th ed. 2005); HAROLD S. LEWIS, JR. & ELIZABETH J. NORMAN, CIVIL RIGHTS LAW & PRACTICE 86 98, (2d ed. 2004). 97. See Monica E. McFadden, Workers Compensation and Workplace Injury: Coordinating Workers Compensation with Civil Rights Claims, 1 ASS N. OF TRIAL LAWYERS OF AM. ANN. CONVENTION REFERENCE MATERIALS 1331 (July 2003) (explaining how state and federal laws interact with workers compensation claims).

19 2012] WORKERS COMPENSATION INSURANCE COVERAGE 135 federally funded programs, education, employment, and public facilities and accommodations. 98 Title VII of the Civil Rights Act protects against employment discrimination and asserts that an employer may not distinguish between employees when that distinction is made on the basis of certain characteristics, such as race, gender, religion, or national origin. 99 A better argument would be to combine a Title VII class membership, if available, with the illusory class of employees of an opt-out employer. In Arends v. Houston Lighting & Power Co., the court, applying Texas law, plac[ed the burden on the plaintiff] to show that [the] release of Title VII claims was voidable,... [but the] release... arising under Title VII must also be knowing and voluntary. 100 The U.S. Supreme Court in Martin v. Wilks held that nonminority employees who object to a consent judgment adverse to their interests are not required to intervene in a Title VII action, but instead may collaterally attack the judgment in independent actions. 101 VII. CONCLUSION In an excellent article by David F. Johnson and Peyton N. Smith entitled The First Step in Nonsubscriber Employee Injury Suits is Defining the Scope of the Employer s Duty It Affects Everything, the authors emphasize the difficulty that injured workers have in proving that the actions or inactions of the employer were the proximate cause of the injury. 102 Plaintiffs, of course, must prove the scope of the employer s duty, which is not easy, so as to indicate the existence of proximate cause. 103 In their section entitled, Parties Must First Define The Scope of the Employer s Duty, the authors divide that section into five subparts which emphasize the difficulty of the task of the injured employee: An Employer Does Not Always Have A Duty to Train and Warn ; An Employer Does 98. Civil Rights Act of 1964, 42 U.S.C. 2000a f (2012) U.S.C. 2000e-2 (2012); RICHARD A. LORD, WILLISTON ON CONTRACTS 54:17 (Thomson Reuters, 4th ed. 2012) LORD, supra note 99, 54:17 n.46 (citing Arends v. Hous. Lighting & Power Co., 969 F. Supp. 424, 426 (S.D. Tex. 1997)) Martin v. Wilks, 490 U.S. 755, 771 (1989); see generally COVINGTON, supra note 96, at David F. Johnson & Peyton N. Smith, The First Step in Nonsubscriber Employee Injury Suits is Defining the Scope of the Employers Duty It Affects Everything, 59 BAYLOR L. REV. 381, (2007); Forrest v. Vital Earth Res., 120 S.W.3d 480, 490 (Tex. App. Texarkana 2003, pet. denied) Johnson & Smith, supra note 102, at 387.

20 136 THURGOOD MARSHALL LAW REVIEW [Vol. 38:117 Not Always Have a Duty to Adopt Safety Policies ; An Employer Does Not Always Have a Duty to Monitor or Supervise ; An Employer Does Not Always Have a Duty to Provide Assistance ; and Employer s Duty Is Narrow Where Employee Alleges Premises Defect. 104 Although employers owe a general common law duty to provide a safe workplace, that does not mean that every employer has a duty to train, warn, instruct, supervise, create safety policies, or assist every employee for every work activity that they do. In fact, employers commonly have none of those specific duties. The inquiry depends upon both the character of work and the experience of the employee. If the character of work is not inherently dangerous or the employee is already experienced in the character of the work, the employer may not owe any of these specific duties. Accordingly, employers should evaluate the case-specific factors and should assert that they do not owe a duty. Potential avenues for asserting this defense are: special exceptions, traditional or no-evidence motion for summary judgment, motion in limine, motion to exclude an expert, motion for directed or instructed verdict, evidence objections, charge conference, motion for new trial, motion to disregard a jury finding, and a motion for judgment notwithstanding the verdict. 105 In sum, and to badly paraphrase Justice Cardozo, negligence in the air so to speak, will not do. 106 That being a truism, then the relative balancing indices of the burden of proving up negligence will fall squarely on the injured worker s shoulders. That is, the onus of this burden is entirely the plaintiff s, which creates another difficulty, namely, negligence suits are expensive, and it is all but impossible to secure the services of an experienced plaintiff s workers compensation attorney without a retainer and a slam-dunk case. The non-subscribing attorney knows this, but is that a violation of the injured employee s civil rights? Probably not Id. at Id. at Martin v. Herzog, 126 N.E. 814, 820 (N.Y. 1920) (quoting SIR FREDERICK POLLOCK, THE LAW OF TORTS: A TREATISE ON THE PRINCIPLES OF OBLIGATIONS ARISING FROM CIVIL WRONGS IN THE COMMON LAW 472 (Stevens & Sons, 10th ed. 1916) (1897)).

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