The “workers comp bar”—the rule that an employer with workers’ compensation insurance is generally immune from damages for a work-related accident—is a powerful defense that is often underutilized. Plaintiffs try to plead around it, and subcontracting relationships blur the lines between who is an employee covered by workers’ compensation and who is not. Arnold & Placek recently used the comp bar to successfully defend a construction company against a wrongful death suit brought by the family of a subcontractor’s employee.
After a construction worker was killed by an excavator in a trench accident in San Antonio, her parents claimed workers’ compensation benefits and sued Step It Up Construction, a utilities subcontractor, along with the general contractor, for wrongful death in the Bexar County District Court. Step It Up’s foreman had been operating the excavator that struck and killed the worker. But the worker was not paid by Step It Up. Instead, she was paid by a subcontractor who supplied labor to Step It Up. The employers’ liability insurer for Step It Up retained Arnold & Placek to defend their policyholder in the wrongful death action. The insurer also began paying benefits to the parents, who then refused to cash their benefits checks because of the impact on their wrongful death case. The parents amended their petition to remove all allegations of employment and sought to withdraw their application for workers’ compensation benefits.
Arguing that employment status was within the exclusive jurisdiction of the Texas Division of Workers’ Compensation, Arnold & Placek succeeded first in persuading the trial court to abate the wrongful death case to afford the DWC time to determine whether the deceased worker was an employee of Step It Up or the labor subcontractor. Arnold & Placek partner Scott Placek represented Step It Up at the DWC and successfully argued that the claim was covered by Step It Up’s workers’ compensation policy.
After the determination of the DWC became final, the wrongful death case resumed. Arnold & Placek promptly moved for summary judgment based on the workers’ comp bar. Based on the language of the Workers’ Compensation Act, the parents were not among the beneficiaries permitted to assert a gross negligence case. The trial court agreed and dismissed all of the claims of the parents and the estate against the employer.
Arnold and Placek next attacked the bystander claim of the deceased worker’s brother, who witnessed the accident and sued for mental anguish. Relying on precedent that prohibits bystanders from recovering in actions when the victims cannot recover, Arnold & Placek successfully argued that the determination that the worker was covered by workers’ compensation insurance also bars the bystander claim. The trial court dismissed the bystander claims on summary judgment.
The parents were represented by the Thomas J. Henry firm out of San Antonio. Arnold & Placek partners Scott Placek and Matthew Foerster represented the employer, Step It Up Construction, in the trial court and at the Division of Workers’ Compensation.