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Worker’s Comp Subscribers and Non-Subscribers — What Texas Families Need to Know
How Your Loved One’s Employer’s Workers’ Comp Status Determines Your Legal Options
If a family member has been killed or seriously injured in a construction accident, one of the first and most important questions your attorney will ask is whether the employer purchased workers’ compensation insurance. The answer to that question will fundamentally determine how your claim is handled, what legal avenues are available to you, and what standard of proof must be met to recover compensation. More information about our San Antonio workers’ comp lawyers here.
The State of Texas does not require companies to purchase workers’ compensation insurance. Texas is the only state in the country that makes workers’ comp coverage optional for most private employers. While the state strongly urges companies to subscribe, many choose not to. Whether the construction company involved in your loved one’s accident was a workers’ comp subscriber or a non-subscriber will completely shape the type of wrongful death litigation you pursue and how that case will proceed.
Subscribing Companies
When a company purchases workers’ compensation insurance, it buys more than just a policy — it also purchases significant legal protection from lawsuits in the event of work-related injuries or deaths involving its employees. In most cases, the family of a worker killed on the job cannot sue a workers’ comp subscriber directly. The workers’ comp system is designed to be the exclusive remedy, replacing the right to sue in exchange for guaranteed benefits. More information about our San Antonio work injury lawyers here.
There is one critical exception to this rule: gross negligence. If the family can prove that the company committed gross negligence and that this gross negligence directly caused the fatal construction accident, the family can pursue a lawsuit against the employer despite their subscriber status. This is a high bar to clear, but it is not impossible — and when it can be proven, it opens the door to significantly greater compensation than workers’ comp benefits alone would provide.
Workers’ comp does provide some financial compensation to the families of deceased workers, but insurance providers routinely attempt to convince families to settle for amounts that fall far short of fair compensation for their loss. The goal of an insurance company is to make a profit, just like any other business. It is not concerned with helping your family heal from a devastating loss. The less money they can convince you to accept, the more money they keep. Cases arise every year in Texas in which insurance companies undercut or outright deny the claims of families whose loved ones were killed in construction accidents — and they do it repeatedly, simply to protect their bottom line.
The workers’ comp system was created in part to reduce the volume of personal injury and wrongful death lawsuits and ease the burden on the Texas court system. But many insurers exploit this structure by pressuring grieving families into accepting settlements that are a fraction of what they are actually entitled to receive. These insurance professionals specifically target families without legal representation. You must have an experienced wrongful death attorney in your corner to ensure you receive the restitution your family deserves.
Even when suing the employer directly is not an option, families of workers killed in subscriber-covered accidents still have the right to pursue claims against other responsible parties. Other employees, independent contractors, and third parties who supplied malfunctioning or defective equipment can all be held liable for the accident, either in part or in full. Our attorneys know how to conduct thorough investigations of construction accident scenes, identify every party whose negligence contributed to the tragedy, and build a case that holds each of them fully accountable.
Gross Negligence
Because establishing gross negligence is the only direct path to suing a workers’ comp subscriber, understanding the distinction between gross negligence and standard negligence is essential. Standard negligence refers to an isolated error or a temporary lapse in judgment — an accident that could happen to anyone and is covered by workers’ comp benefits. Gross negligence is something far more serious: it occurs when a company or its employees habitually and recklessly fail to provide a safe workplace, with conscious indifference to the rights, safety, and welfare of workers.
To illustrate the difference, consider this: a construction worker accidentally knocks a block of cement off the roof of a building, striking and killing a coworker below. That is standard negligence — an isolated accident. But if that same construction site was routinely filled with debris and dangerous objects had repeatedly been knocked off that roof without corrective action being taken, the company would be considered to have committed gross negligence. Management should have been able to reasonably foresee that a fatality was a predictable outcome of the pattern of unsafe conditions they allowed to persist.
Our firm handled one case that illustrates this point powerfully. We represented the family of a construction worker who died after his employer insisted he work on a crane while wearing a safety harness that was known to be malfunctioning. The harness failed and the worker fell to his death — a direct result of his employer’s gross negligence. To make matters worse, the owner of the company raced to the nearest equipment store after the accident, purchased a new harness, and placed it on the deceased worker’s body before reporting the incident in an attempt to conceal his negligence. Through a thorough investigation of the accident scene and detailed interviews with coworkers, our attorneys exposed this conduct and held the owner fully accountable in court. Had that investigation not taken place, the owner may well have escaped responsibility entirely.
Non-Subscribing Companies
When a construction company chooses not to purchase workers’ compensation insurance, the rules change dramatically. Because the company opted out of the workers’ comp system, it does not enjoy the same lawsuit protections that subscribers receive. The primary — and in most cases, the only — avenue available to the family of a deceased worker is a direct lawsuit against the non-subscribing employer.
The standard of proof in these cases is significantly lower than in subscriber cases. Rather than having to establish gross negligence, the family only needs to prove standard negligence — that the employer failed to exercise reasonable care and that failure caused the worker’s death. This lower threshold is how the State of Texas penalizes companies that choose not to subscribe. Non-subscribers face a much greater exposure to lawsuits and much larger potential judgments as a result of that choice.
That said, a lower standard of proof does not mean an easy case. Non-subscriber wrongful death cases can be highly complex, requiring careful investigation, detailed documentation, and expert testimony to establish both negligence and the full scope of the family’s losses. You still need an experienced wrongful death attorney to navigate this process and ensure that the compensation sought reflects the true and complete impact of your loss.
Contact our office today for a free consultation and let us put our experience to work for your family.