Texas employers have been opting out of Worker's Compensation insurance in growing numbers in the past two decades in an effort to avoid the program's high costs.
"There are a lot of factors that go into the decision to be a nonsubscriber," explained attorney James W. Karel. "How big is the company? What is their loss record? What are their comp premiums? Is it going to be a cost saving measure from year to year? That just scratches the surface. There are so many questions, and there isn't a cookie-cutter answer.
"The big issue is how comfortable is the employer in allowing a jury to determine negligence?" Karel said.
Typically in a civil lawsuit, comparative liability deems that a Defendant can be held proportionately liable for a Plaintiff's damages. If a jury finds a Plaintiff is thirty percent at fault, then the Defendant pays seventy percent of the damages. In Texas, if a Plaintiff is found to be fifty-one percent at fault, then the Defendant pays no damages.
However, in nonsubscriber cases, if a jury finds a Defendant to be even one percent at fault, that Defendant is one hundred percent liable. Add to that the fact that the employer cannot show evidence that the employee was negligent or that the employee knew the risks and voluntarily proceeded, and nonsubscribers face a difficult challenge in the courtroom.
What's key to being a nonsubscriber, Karel says, is having an attorney who is experienced in dealing with these limitations. Karel has found that many attorneys, unaccustomed to the critical differences, fail to grasp nonsubscriber's intricacies.
"Rather than try to spread liability," Karel said, "the defense must look to what the employer did by way of training, supervision, providing safe equipment, and providing a safe environment, so that the one-percent threshold can be defused by showing how reasonably the employer acted. If the employer can show that it took reasonable steps and nothing it did or failed to do caused the accident. The fact that an employee was injured is not an indication of negligence. To that end, how your approach to the case has to be a little different."
The differences in handling nonsubscriber lawsuits may be subtle, such as refocusing questions in discovery or in depositions, but it is essential that an employer's attorney understand those differences. Karel & Hicks has the necessary experience.
"I've handled nonsubscriber cases for fifteen years and have worked with a variety of employers," Karel said. "We're familiar with the nuances of nonsubscriber cases, how to evaluate them, and prepare them for trial."