When an employee dies while at work or while engaging in activities required by his or her employer, certain members of the employee’s family can sue the employer even if the employer has worker’s compensation insurance. The Texas Constitution provided long ago that every legal person, including companies and corporations, that causes the death of a natural through an omission, gross neglect, or willful act is responsible in what are called “exemplary damages” to any surviving husband or wife or heirs of the deceased person. These surviving family members can obtain exemplary damages from the deceased person’s employer even if there is a criminal proceeding pending regarding the employee’s death. Texas courts have interpreted the Texas Constitution such that the only people that can bring such a claim are spouses and children actually procreated, or begotten, by the deceased parent. The Texas Legislature cannot disclaim this right, because it is provided by the Texas Constitution. The Legislature has even expressly included language in the Texas worker’s compensation statute that assures the right of a surviving spouse or heirs of a deceased worker to sue an employer for exemplary damages if the employee’s death was caused by the intentional act or omission, or gross negligence, of the employer.
A surviving family member’s lawsuit or claim against the employer of a deceased worker is completely separate and distinct from any proceedings to obtain worker’s compensation benefits. Therefore, for example, a surviving spouse or dependent child might be attempting to obtain worker’s compensation benefits on one hand and choose to sue the employer for exemplary damages on the other. A husband or wife surviving a deceased worker and/or the children of such a worker would file suit pursuant to the Texas Wrongful Death Statute.
When suing for exemplary damages as a result of the death of an employee in the workplace, a family member must prove gross negligence. Generally, gross negligence means that an employer acted with conscious indifference to the safety or welfare of the deceased employee. Such a claim for exemplary damages is unusual, because exemplary damages claims are typically brought with other claims in personal injury cases, seeking damages in addition to compensatory damages (such as medical and healthcare expenses, lost wages, and loss of consortium or society).
