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Prohibited Defenses for Non-Subscribers Under Texas Law:

When an employer opts into workers’ comp coverage, they are (mostly) immune from work injury lawsuits. But when an employer opts out, injured workers can sue them by showing that the employer’s negligence was the cause of their injuries. Employers who opt out are called “non-subscribers.” Therefore, an employee who is injured while working for a non-subscriber has what is known as a non-subscriber case.

Even though Texas lawmakers gave employers the lawful right to opt in or out of workers’ comp, they structured the law in such a way as to strongly encourage employers to opt in. In particular, the language of the Texas Workers’ Compensation Act eliminated several defenses that employers had historically used quite effectively against work injury lawsuits. In other words, the lawmakers said, “We want you to participate in a Texas workers’ comp plan, but since we can’t make you do so, we’re going to take away some of the best arguments that you otherwise would have been able to use to defend yourself from your workers’ lawsuits, and hopefully that will encourage you to do what we want.”

The result of this legislative is Texas work injury laws that strongly favor workers who are injured while working for a non-subscriber. In this article, Texas work injury attorney Michael Grossman will review what defenses non-subscriber employers are not permitted to use their defense.


Questions answered on this page

  • What defenses are non-subscriber employers prohibited from using in court?
  • How do these different defenses work?
  • How does this affect a workers’ non-subscriber work injury case?
  • How can an experienced work accident attorney help with your work injury case?

Defenses Not Allowed

Most folks assume that you can argue whatever the you want in courtroom, or at least that’s the perception that they get from television and movies. However, in many instances, there are arguments, which either through precedent or legislation have been invalidated. In the context of non-subscriber work injury defenses, the following is a list of defenses that employers are not permitted to use in court:

  • Contributory negligence–This argument can be used in every other type of personal injury cases, and it can essentially be summarized as, “The injured person’s own negligence caused the accident, therefore the jury should award them less money or no money at all.” However, as a non-subscriber, an employer cannot claim that their employee contributed partially to their own injury in order to offset the employer’s liability. Even if the employer was only 1% at fault and the worker contributed 99% of the fault, the employer does not have the luxury of using this comparative fault type of defense to escape being responsible for the losses that the worker has incurred.

    Read more here about comparative fault arguments that non-subscribers are not allowed to use.

  • Assumption of the risk–Assumption of the risk is an argument that can be summarized as, “The injured person knowingly participated in a risky activity, so they should not be compensated because they were hurt; getting hurt is a likely outcome for that type of activity.” A good example of this defense in action would be to consider knife-juggling. Obviously, knife-juggling is a risky activity, so if someone goes to a class to learn knife-juggling and is injured in the process, the school could defend itself against a lawsuit by arguing that the student assumed the risk of being cut merely by participating in the act of knife-juggling. But a non-subscribing employer cannot use this defense to say that an employee was injured because they participated in an activity that they knew to be risky, like timber cutting, oil extraction, or construction.
  • Pre-injury waiver of liability–The idea behind a pre-injury waiver (usually referred to simply as a “waiver” or a “release of liability”) is that someone will want to participate in some activity and the host of the activity will require the participant to sign a contract that says they will not sue the host should an injury occur. Under most circumstances, a pre-injury waiver is an effective means of eliminating liability if an injury occurs (bear in mind that a release is a contract, so it must be in the proper form. Most releases that are ineffective fail because they are poorly written). But non-subscriber employers cannot use pre-injury waivers to avoid liability for a work injury. However, there are some pre-injury agreements that the court has deemed acceptable. For instance, courts have ruled that a binding arbitration agreement does not act as a pre-injury waiver, so an employee will still be bound to that type of an agreement. Arbitration agreements are essentially a contract between the employee and the employer wherein both parties agree to not have the case decided in court, rather it is to be decided in arbitration, which is sort of a privatized pseudo court.
  • Fellow servant doctrine–The fellow servant defense can be summarized as, “The worker was hurt by a co-worker, so he should sue the co-worker, not us, the employer.” This defense was highly effective and used extensively by employers throughout the 1800s and early 1900s. It’s basically a way for the employer to shift the blame onto someone other than them, but the law now forbids non-subscribers from using this defense.
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What Defenses can a Non-subscriber Use?

Many lawyers believe that employers are only left with what is known as the “sole proximate cause” defense. This defense basically says that the injured worker was the negligent party and basically caused their own injuries. However, that’s not accurate. Employers can still argue that an accident resulted from a sudden emergency, was unavoidable, an “act of God,” or even that an employee was “not in the course and scope of employment” at the time of an accident.

While the Texas Workers’ Compensation Act may have tilted the deck in favor of workers in non-subscriber cases, it certainly didn’t leave employers defenseless.

For a complete list of defenses that they can use, read this article on defenses that are still allowed in non-subscriber cases.

Make sure you’ve got an attorney that knows how to deal with non-subscribers.

Just because an employer is not allowed to use a defense, does not mean that their legal team will not try. In fact, inexperienced accident attorneys often do not know to object to invalid defenses. This raises the possibility that one of these defenses could slip through and damage your case.

The attorneys at Grossman Law Offices have represented clients in thousands of personal injury cases and as a result we have the skill and expertise necessary to maximize the effectiveness of your case to ensure that you are able to get the compensation you deserve.

Our Texas non-subscriber attorneys are dedicated to providing each and every one of our clients with the best representation available. To discuss your work injury lawsuit contact us for a free consultation at (855)326-0000.


If you are an injured worker, you may be interested in the following related articles:

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