Non-Subscribing Companies

Because a non-subscribing company did not purchase workers’ comp insurance, the only way to gain restitution is through a lawsuit. In this case, however, the plaintiff needs only prove the occurrence of standard negligence to win restitution, and standard negligence has a much lower standard of proof.

The State of Texas, in effect, punishes non-subscribers by making it easier for a plaintiff to win a wrongful death lawsuit. However, the litigation involved in such a case can be much more intricate and emphasizes, even more, your need to have an experienced attorney on your side. Not only must the plaintiffs in this kind of case prove their loved one’s death was due to the company’s standard negligence, but they must also prove the amount of compensation they are trying to obtain is fair and just.

Available Damages

The compensation associated with wrongful death damages include:

Medical and funeral expenses as a result of the construction fatality.
Financial support provided by the victim lost as a result of his or her death.
The mental and emotional trauma as a result of the family member’s death.
The consortium and love provided by the deceased cannot be replaced.

Survival Damages

Restitution for survival damages include:

Medical expenses arising as a result of the construction site accident.
Salary lost while the victim would have been hospitalized, or salary that would have been lost by the victim because of long-term disabling injuries caused by the accident.
The mental and emotional turmoil that the deceased would have experienced had he or she survived.
The physical pain and suffering experienced by the deceased.

Hurdles in Obtaining Wrongful Death Case Compensation
Non-subscribing companies have very few options in trying to avoid paying a construction wrongful death claim, because, as stated above, the State of Texas designed workers’ compensation laws to try and reduce the amount of lawsuits, and thus strongly encourage companies to subscribe. Even a non-subscriber has a couple of tools it can try to utilize to defeat a wrongful death claim. These are described in detail below.

Sole Proximate Cause

The only true defense a non-subscriber can use to avoid paying a claim is the Sole Proximate Cause defense – that the deceased employee was 100 percent responsible for his or her own death. The only way an employer can successfully prove this defense is by making your family out to be a habitually incompetent employee who was negligent on a regular basis. If successful in proving Sole Proximate Cause, the employer will be able to keep from paying your family the compensation that you deserve.

While it’s true the company did not see fit to pay for workers’ comp insurance, you can guarantee that company will open its checkbook and pay big money to a defense lawyer who is adept at dragging deceased construction workers through the mud. It is imperative you have an experienced and effective attorney by your side to defeat those lowdown tactics and protect your loved one’s reputation.

The Employer/Employee Relationship

A few employers will try and skate the rules by claiming the deceased worker was never really a “true employee,” but a contractor. In Texas, contractors are solely responsible for their own safety in the workplace. But merely making that claim does not mean that Texas law will view that worker as a contractor. Attorneys with our Law Offices are very adept at proving that an employer/employee relationship existed by examining pay stubs and contracts and interviewing fellow workers in order to satisfy one of the several standards that prove an employer/employee relationship. These include:

The employer held back Social Security or taxes from the worker’s paycheck.
The employer was responsible for providing the equipment necessary for the worker to perform his or her job.
The worker was expected to follow a set schedule established by the employer.
Your family member either signed a document or performed a task, that limited his or her rights while working for that company. For example, he or she signed a document that stated he or she agreed to comply with an employee handbook or took a drug test.
The worker was not hired for an isolated, single job, but rather for an extended, undetermined amount of time.
Your loved one was paid via salary or hourly wage instead of job-by-job.