You’re Killing Me!
The Oversight Preventing Lawsuits when Young People get Killed on the Worksite
Can anyone bring a wrongful death claim for a deceased adult against the employer if the adult does not have a spouse or children? What about parents, brothers, sisters, etc.?
Unfortunately, due to the way the worker’s compensation statute is drafted, the only people who can bring claims against an employer are (1) the surviving spouse; (2) “the heirs of the body”, which has been interpreted by the Courts to mean surviving children. Parents are not able to bring such claims. Siblings are not able to bring claims.
Below is the statute for the “Exclusive Remedy” for worker’s compensation subscribers, which would include most larger companies. This statute means that a worker is unable to sue their employer if they are a subscriber to worker’s compensation. However, the sole exception is where there is a workplace death, the “surviving spouse or heirs of the body” can bring a claim for an intentional act or gross negligence against the employer. (highlighted below).
Parents and siblings are not among the specified classes in the Texas Constitution who may recover exemplary damages in the case of “a homicide, through willful act, or omission, or gross neglect.” In order to bring an action for exemplary damages for a wrongful death, the plaintiff must be the “surviving husband, widow” or “heir[s] of his or her body.” Tex. Const. art. XVI, § 26. Texas law is well settled that parents and siblings are not heirs of the body. Castleberry v. Goolsby Building Corp., 608 S.W.2d 763, 765 (Tex.Civ.App.—Corpus Christi 1980), aff’d 617 S.W.2d 665 (Tex.1981). Article XVI, § 26 of the Texas Constitution thus divides survivors into two classes: (1) spouses and children and (2) parents, siblings, and all other legal beneficiaries.
This decision was recently affirmed by the Texas Supreme Court in Mo-Vac Serv. Co., Inc. v. Escobedo. 603 S.W.3d 119, 121 (Tex. 2020) (The parents and sister of the deceased worker attempted to sue the employer for wrongful death. However, the Texas Supreme Court held that they “are not the decedent’s surviving spouse or heirs of his body and thus lack standing to sue under that provision”. The Court held the claims were rightfully dismissed.) This is an unfortunate and unjust loophole in the worker’s compensation statute that essentially allows companies to get away with killing people who are unmarried and do not have children since no one can bring a claim. Justice Guzman recently reiterated this concern when drafting his Mo-Vac concurring opinion:
Unfortunately, a parent cannot bring a claim, through wrongful death or a survival statute, for a deceased adult child that would override the worker’s compensation bar. Now, a parent could recover death benefits through the worker’s compensation insurance under § 408.181 and § 408.182. This is done by and through Texas Worker’s Compensation which equates to 75% of the weekly salary. But this is all dealt with through the administration of worker’s compensation, and not through a lawsuit.
The only exception is for the estate of the deceased, which may bring a survival cause of action against the employer. Both of you, as his parents and members of the estate, can bring a single survivorship claim as heirs of the estate. However, this is limited to only claims for intentional injury by the employer, and possibly gross negligence, although some recent case law has severely limited the gross negligence line of cases. The only damages the estate can pursue are those suffered by the deceased including: pain, suffering and mental anguish that deceased suffered prior to his death; funeral expenses; medical damages; physical impairment; and possible punitive damages.