Texas Non Subscriber Defense Law
Signed Waiver Precludes Employee’s Right to Sue for Injuries in Course & Scope of Employment
Lambert v. Affiliated Foods, Inc. 1999 WL 1277559 (Tex.App.-Amarillo) November 16, 1999
The Employer elected not to provide workers’ compensation coverage and established an employee disability benefit plan. The plan provides alternative no-fault coverage for occupational and non-occupational injuries to employees who voluntarily elect to participate in the plan.
Lambert was hired, and subsequently elected to participate in the plan, signing a statement that indicated he understood that he would lose the right to sue Affiliated if injured, and that his only remedy would be to benefits under the plan. Once injured, Lambert received and accepted disability and medical care benefits under the employer’s plan, then filed suit for personal injuries under the Labor Code.
Lambert asserted that the waiver or election of rights was unenforceable on public policy grounds only, as well as the defenses of estoppel and ratification. In affirming summary judgment for Affiliated, the appeals court noted that the legislature addressed certain common law defenses to actions brought by employees in §406.033 of the Act, and that even though waiver is a common law defense, it is not included in the list of prohibited defenses to a common law action for personal injuries brought by an employee, and declined to hold the waiver void on public policy grounds.
The court also addressed §406.035 of the Act that states that an agreement by an employee to waive rights to compensation is void. They held that §406.035 only applies to employees of a subscribing employer.
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