Wrongful Death claims in Texas in employment differ from other states in two specific ways.
(1) In Texas even if your employer may not carry workers compensation. Most states do not allow an employer not to have workers' compensation, but in Texas many of the largest employers do not carry workers' compensation. This means that if your Texas employer has no Texas Workers' Compensation Coverage or their own Occupation Injury Plan, the employer can still be sued if they are negligent in causing the injury or death. If they have Texas Workers' Compensation they are protected from a lawsuit even if they are negligent, except as noted below.
(2) If an employee is killed by the gross negligence of their employer then their spouse and children can sue and collect punitive damages. This is because the Texas Constitution specifically allows such lawsuits. In this regard The Workers' Compensation Act states:
Sec. 408.001. EXCLUSIVE REMEDY; EXEMPLARY DAMAGES.
(a) Recovery of workers' compensation benefits is the exclusive remedy of an employee covered by workers' compensation insurance coverage or a legal beneficiary against the employer or an agent or employee of the employer for the death of or a work-related injury sustained by the employee.
(b) This section does not prohibit the recovery of exemplary damages by the surviving spouse or heirs of the body of a deceased employee whose death was caused by an intentional act or omission of the employer or by the employer's gross negligence.
(c) In this section, "gross negligence" has the meaning assigned by Section 41.001, Civil Practice and Remedies Code.
Gross negligence is more than just negligence. To win this type of lawsuit your lawyer must prove by "clear and convincing evidence" that:
(A) which when viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and
(B) of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others.
It should always be remembered that even if a loved one is killed or injured they still have a claim against any third-parties who were not their employer and were negligent in causing their injury.
Mr. Roger Davie - Bio
Mr. Roger Davie has been a practicing lawyer since 1985. He is licensed in both Texas (1985) and New Mexico (1986) and both the state and federal courts. Mr. Roger Davie is one of the few Board Certified Attorneys in Employment Law in El Paso who exclusively represents employees.
Mr. Davie started off his career representing employers and defendants and working for large law firms until he switched sides and started representing Employees in their claims for wrongful termination and workplace injuries. This gives Mr. Davie a unique perspective and allows him to better represent his clients. Mr. Davie exclusively represents employees and is one of the most experienced employment lawyers in El Paso. Mr. Davie takes cases in El Paso, Las Cruces, Southern New Mexico and far West Texas.
Mr. Davie only takes cases on a contingency so there is never a charge unless Mr. Davie receives a recovery for you.
If you have been wrongfully terminated or injured on the job you deserve to have a lawyer who is Board Certified by the Texas Board of Legal Specialization representing you in your claim. Almost every lawyer in El Paso who represents your employer is Board Certified by the Texas Board of Legal Specialization in Employment Law; you should have a Board Certified lawyer on your side as well.