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The Nonsubscriber Defender

Legal Forum for the Defense of Nonsubscriber Claims and Litigation

Texas Supreme Court to review certified question from Fifth Circuit in Austin v. Kroger

Posted in Uncategorized

The Supreme Court of Texas has accepted the Fifth Circuit’s certified question in Austin v. Kroger. The Fifth Circuit’s request for certification formally withdraws its previous controversial opinion. The case could have widespread implications for nonsubscriber premises liability claims.

The case involved an employee-janitor who was directed to clean up a spill in a restroom with a mop. There was no dispute that Austin knew of the spill and of course, cleaning up the spill was part of his ordinary job duties. Unfortunately, Austin slipped, fell and was injured. Austin filed suit against his employer on premises liability and other theories of negligence. United States District Judge Jane Boyle granted Kroger’s motion for summary judgment on the grounds that the case involved premises liability law and citing to various recent decisions of the Texas Supreme Court that nonsubscriber employers owe no duty with regard to known dangers.

In its first opinion, the Fifth Circuit reversed the summary judgment (except as it related to the plaintiff’s claim for punitive damages). Among other things, the Fifth Circuit pointed to the fact that Austin was not given “Spill Magic,” a substance Kroger recommended to its employees in the clean up of such spills. The opinion was regarded as controversial because it basically held Kroger was potentially liable for employing a janitor to clean up a known spill with a mop. The opinion was also arguably inconsistent with the several recent pronouncements of the Texas Supreme Court.

Kroger requested rehearing and also asked that the Fifth Circuit certify the question to the Texas Supreme Court for resolution because the case involved an important question of state law. In its new opinion, the Fifth Circuit lays out what it perceives as a conflict in Texas law and certified the following question:

Pursuant to Texas law, including § 406.033(a)(1)-(3) of the Texas Labor Code, can an employee recover against a non-subscribing employer for an injury caused by a premises defect of which he was fully aware but that his job duties required him to remedy? Put differently, does the employee’s awareness of the defect eliminate the employer’s duty to maintain a safe workplace?

The Texas Supreme Court has agreed to review the case but is not bound by the Fifth Circuit’s phrasing of the issue presented.

This case represents an opportunity to clean up Texas nonsubscriber law on key issues relating to employee slip/trip-and-fall cases. All nonsubscriber employers should watch this case closely.


Trek Doyle and Karl Seelbach to speak at TXANS nonsubscriber conference

Posted in Uncategorized

The Texas Association of Responsible Nonsubscribers (TXANS) is holding its annual conference on April 30 to May 1, 2014. As an organization, “TXANS leads the effort to promote the use of sound and ethical practices relating to injury prevention and the provision of quality workplace injury benefits by non-subscribers to workers’ compensation. TXANS provides specialized programs and services to help Texas employers succeed as responsible non-subscribers. TXANS also works to address important public policy objectives so that the freedom to choose injury benefit options can continue for both employers and employees.”

Blog authors Trek Doyle and Karl Seelbach will speak on May 1 on the Defending Nonsubscriber Premises Liability and Lifting Injury Claims. We hope to see you there.

Oklahoma Supreme Court Rejects Constitutional Challenge to the “Oklahoma Option”

Posted in Uncategorized

Following last week’s oral arguments, on December 16, 2013 the Oklahoma Supreme Court issued an order rejecting a constitutional challenge to the state’s new workers compensation law. The law includes an “opt out” provision (a.k.a. Oklahoma Option) that permits employers to provide benefits outside of the workers’ comp system for on-the-job injuries occurring on or after February 1, 2014. Click here for a more detailed discussion of the Oklahoma court’s ruling.

Defending Nonsubscriber Lifting Injuries – Part IX – “Foreseeability”

Posted in Lifting Injury Series

In addition to proving “but for” (a.k.a., cause-in-fact) causation, the plaintiff must also prove as a separate element of causation that the injury was foreseeable to the defendant.  In general, to prove foreseeability, the plaintiff must show that a reasonable person would anticipate the harm associated with the defendant’s negligence. Lifting injury cases present an unusual challenge in terms of proving foreseeability.

It is nearly always true that a plaintiff would not have lifted the object which caused him harm if he himself had any reason to expect of foresee that he would injure himself. A person’s capacity to safely lift an object obviously varies by individual. Some persons can individually lift and move 100 lbs or more safely; others cannot. The plaintiff knows his own physical capabilities and limitations better than anyone else including his employer. If the plaintiff was not in a position to foresee his own injury, how was it foreseeable to the employer? Often, the plaintiff will admit these facts when interviewed or even at deposition and it is therefore sometimes possible to secure an outright admission that the plaintiff’s injury was “unforeseeable.” Such admissions can be used to support a motion for summary judgment.

In addition, as pointed out in Part II, there are nearly always viable alternatives to lifting the object alone without assistance. Where the employer has provided a safe method for performing a task, the plaintiff who chooses to proceed in an unsafe manner will have difficulty proving his accident was “foreseeable” to his employer. Again, the case of Fields v. Burleson provides good support for this position. In Fields, the plaintiff testified that “if she had anticipated injury to her back she would never have picked [the tub] up [and] was unable to foresee injury to her back.” The Fort Worth Court of Appeals concluded that the plaintiff could not prove proximate cause.

Practice tip: If you are interviewing or deposing a claimant or plaintiff, get them to commit to the following propositions which can be modified or tailored to fit your situation:

-You would not have lifted the object if you knew you would were going to get injured?

-You know your own physical abilities and limitations better than anyone else including your employer?

-You did not expect or foresee that you would be injured when you picked it up?

-Your injury was unforeseeable to you?

-Your injury was unforeseeable to your employer?

This concludes our series on “Defending Nonsubscriber Lifting Injuries.” The authors welcome comments or questions.

DOMA Concerns for Nonsubscribers, What You Need to Know Now.

Posted in Uncategorized

On June 26, 2013, the United States Supreme Court issued a historic 5-4 decision that impacts how federal law is applied to same-sex couples. In United States v. Windsor, the Supreme Court held that Section 3 of the 1996 Defense of Marriage Act (“DOMA”) is unconstitutional. Section 3 had previously defined “marriage” for purposes of federal law as the union of one man and one woman. Following Windsor, employers are scrambling to comply with this recent ruling and change in federal law. The most recent guidance provided by the federal government comes from the IRS. On August 29, 2013, the IRS issued Revenue Ruling 2013-17, which declares the IRS will look to the state where the same-sex marriage took place to determine whether the couple is validly married for federal tax purposes. One of my colleagues, Greta Cowart (a nationally recognized expert on ERISA issues and guidance), recently explained in more detail the impact of this IRS ruling and the most relevant excerpts of her analysis are noted below:

“if a couple enters into a same-sex marriage that is valid in the jurisdiction in which it is entered into, they shall be treated for all federal tax purposes as married and there should be no tracing of whether an individual is married based on separate state laws of the states in which they may live thereafter”

“as of september 16, 2013, all qualified retirement plans must recognize same-sex spouses recognized under revenue ruling 2013-17 as spouses under the retirement plan, with the related spousal rights.”

“Given the IRS’s position requiring recognition of all spouses equally, employers must now consider also modifying their COBRA administrative provisions to make sure they are recognizing all spouses with notice and election rights as qualified beneficiaries under COBRA.”

The Windsor decision and IRS ruling cited above directly impact employee benefit plans governed by the Employee Retirement Income Security Act of 1974 (“ERISA”). Although Texas does not currently recognize same-sex marriage and Attorney General Greg Abbott has drafted an opinion staunchly refusing to recognize them under Texas law, Texas nonsubscribers should nonetheless consider whether their employee benefit plans need or may require revisions to address injury-related benefits to same-sex couples (e.g., surviving spouse payments). While Texas does not recognize same sex marriage, nonsubscribers should still consider reviewing and updating their group medical and other ERISA plans as to the definition of “spouse” and whether limitations are desired for spouses of Texas-based employees who enter into a same-sex marriage in another jurisdiction (in which same-sex marriage is valid) and later move to Texas.

The following list of action items prepared by Greta Cowart is a good starting point for Texas employers, including nonsubscribers, who are reviewing their plans and addressing the impact of Windsor and the IRS’s recent ruling:

  • Employers must determine which States in which they operate have made a decision to recognize same sex marriage.
  • Employers need to determine which States refuse to recognize same sex marriages which occurred in other States or countries.
  • Employers need to reach out to their employees requesting identification of which of the employees may be married and in which jurisdiction they were married and when that marriage occurred to begin to identify the individuals for whom there may need to be changes in the tax treatment of their health coverage and potential tax refunds and changes in any gross ups for the tax treatment.
  • Employers will need to consider their plan terms (in all employee benefit plans) and if the plan incorporated DOMA’s definition and if the plan incorporated a State law as the governing law for any matters not preempted by ERISA, it will need to be amended.
  • Employers will need to determine how much FICA and income tax withholding will need to be refunded to same sex marriage employees and will need to determine how the employer can request a refund for any FICA and Medicare taxes it paid and the employee’s share of the FICA and Medicare (including the additional Medicare tax in 2013) taxes the employer remitted related to the coverage for any same sex married employees.
  • Employer should review their employment policies, such as for Family and Medical Leave Act, bereavement leave and others, to determine if any revisions are necessary to include same sex married domestic partners (“SSMDP”) and to determine how the employer wants to address employees in states which do not recognize same sex marriage.
  • Health plans subject to Medicare Secondary payer requirements and Tri-Care secondary payer requirements will need to wait for guidance on whether the Center for Medicare and Medicaid Services and the Department of Defense respectively will pursue claims against the plan for the SSMDP’s who were protected under such statutes as the result of this decision and for whom the health plan should have paid as primary instead of Medicare paying primary.

Please contact Karl Seelbach (kseelbach@winstead.com) or Greta Cowart (gcowart@winstead.com) if you have questions or need assistance or further analysis regarding these issues.