Texas Supreme Court Exclusive Remedy
According to an article in Business Insurance, the Texas Supreme Court ruled that even temporary employees are to be covered under a company’s Workers Comp policy. The case is Casados v Port Elevator.
A similar ruling was handed down in Texas approximately 10 years ago. A ruling such as this can have a chilling effect on employers” Workers Compensation policies in Texas – and possibly in other states.
The three basic concerns I have with this ruling are:
- The employers are already paying for Workers Compensation insurance in the fee markup by the temporary agency. Requiring an employer to pay double for coverage is a violation of the basic rules on insurance. The temp agency had a valid Workers Comp policy in place at the time of the accident.
- Insurance carriers will likely have no choice except to charge for temporary employees when the policy is written or at the time of the premium audit. The risk of having to cover temporary workers in now in place.
- The worst effect is employers may decide to not hire temporary employees if part of the agency fee will also have to be paid again to the employers’ Workers Compensation carrier. Employers should not be discouraged with using temps in this economy.
The case was a 2005 death case that involved a temporary worker who was killed his third day on the job in a grain storage facility accident. The Texas Supreme Court did make the proper decision on exclusive remedy. A jury did not apply the exclusive remedy doctrine and awarded the employee’s family $2.7 million. The appeals court upheld the award.
The bottom line is the Texas Supreme Court’s exclusive remedy part of their ruling was correct. The mistake was made when the temporary agency’s Workers Comp carrier was not held 100% liable as is usually the case. This was a weird take on the exclusive remedy doctrine.
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