Texas Workers' Compensation Exclusive Remedy (§ 408.001) vs. Non-Subscriber Tort Liability (§ 406.033)
Summary of the Texas Rule (Tex. Lab. Code §§ 406.002, 406.033, 408.001, 417.001)
Contrasts the workers' compensation exclusive-remedy shield for subscribing Texas employers with the complete abolition of comparative fault, assumption of risk, and fellow-servant defenses for non-subscribing employers.
Statutory Text Summary & Legal Mechanics
Under Tex. Lab. Code § 408.001(a), recovery of workers' compensation benefits is the exclusive remedy of an employee covered by workers' compensation insurance coverage against the employer for a work-related injury (except for exemplary damages in fatal gross-negligence cases under § 408.001(b)). Conversely, under § 406.033(a), in an action against an employer who does NOT have workers' compensation coverage (a 'non-subscriber'), the employee must prove negligence of the employer, and it is NOT a defense that: (1) the employee was guilty of contributory negligence; (2) the employee assumed the risk; or (3) the injury was caused by the negligence of a fellow employee.
Practical Impact on Texas Personal Injury Claims & Jury Trials
Even when an injured worker's employer subscribes to Texas Workers' Compensation, Tex. Lab. Code § 417.001 expressly authorizes the employee to sue any negligent third party (such as an at-fault motorist, general contractor, or equipment manufacturer), subject to the workers' comp carrier's statutory subrogation lien under § 417.002 (which is reduced by up to one-third for the plaintiff's attorney's fees and a proportionate share of expenses under § 417.003).
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