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Can you sue your employer for your injuries if they have Texas Workers' Compensation.

Written by Mr. Roger Davie on Sunday, 08 Jul 2018.

I have a lot of clients in Texas that come see me when they are severely injured at work asking if they can sue their employer for the injuries they receive.  Texas is unique in that it does not require an employer to carry Texas Workers' Compensation.  Every other state, including New Mexico require employers to carry workers' compensation insurance.  Some of the biggest employers in Texas do not carry workers;' compensation insurance.  Many, in not most trucking companies,Walmart, Home Depot just to name a few.  But there are still a lot of employers who do carry Texas Workers' Compensation.  So why would an employer carry Texas Workers' Compensation?  It is because if they do, they generally cannot be sued by their employees, even if they are negligent.  (if the employee dies the wife and children can sue for gross negligence).  This is called the Texas Workers' Compensation Bar because it bars injured workers from suing their employers.  

But there is an exception to this rule.  Under the workers' compensation law of Texas if the injury is caused by an intentional act then the employer can still be liable.  However there is a catch, because the general rule is that an employer is not liable for the intentional acts of their employees unless the employee is a Vice-Principal of the employer. A Vice-Principal is someone who is generally fairly high up in the company or at least a supervisor who has the power to fire employees.  Recently a case came out of the one of the Texas Courts of Appeals that addressed the issue of what is an intentional act under Texas law.  The case is Berkel & Company Contractors, Inc. v. Lee, ___ S.W3d ___, 2018 WL 1403545 (Tex. App.—Houston [14th Dist.] 2018).  The facts of this case are horrific.  A supervisor, Miller told his employees to perform actions to try and fix a problem.  The employees told Miller that it was too dangerous and that someone could get killed or hurt.  Miller basically told them if they don't do what he said he would fire them all and get someone else to do the job.  Interestingly the problem (it was a stuck drill bit) was actually caused by Miller.  As a result of Miller's actions an employee was severely injured and actually lost a leg as a result of the injury.  The injured employee has workers' compensation insurance, but wanted to sue the employer because of the outrageous conduct of Miller.  First, the Court stated that if Miller's acts were intentional then the inured worker could sue the employer despite having Texas workers Compensation.  The Court also held that the employer was only liable for Miller's intentional act if he was a "Vice-Principal" of the employer.  The employer argued that Miller was just a low level supervisor and therefore not a Vice-Principal.  The court disagreed and held that Miller was a Vice-Principal because he had the ability to fire employees.  Then the Court turned to what is an intentional act?  The court stated that intent means “that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it.” “A person acts with the intent to produce a consequence if: (a) the person acts with the purpose of producing that consequence; or (b) the person acts knowing that the consequence is substantially certain to result.”  

The court used this definition and stated that Miller's intent was not specific enough to be intentional.  In other words Miller might have known of general possibility of injury, but not to a specific person or class of persons.  So the employee lost because the court said that the act of Miller was not intentional.  Interestingly the court seems to say that if Miller knew that a specific class of person would be injured almost to a certainty then it would be an intentional act.  So if someone had told Miller, if you keep doing that you may kill these guys standing over there, or you might kill us, or you may kill the crane operator.  

Interestingly, New Mexico seems to follow a similar rule.  New Mexico follows what is know as the Delgado rule.  It basically states that if an employer knows almost to a certainty that injury would result, then the employer remains liable, despite having workers' compensation injury.  I suspect that the New Mexico standard, while similar would have come out differently and the injury would have been compensable.

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