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The family of a deceased employee of an armored car service may not maintain a wrongful death action for exemplary damages against the employer on the basis of allegations that it engaged in gross negligence resulting in the death of their family member because the death resulted from “an assault, theft, or other criminal act,” as described in Tex. Civ. Prac. & Rem. § 41.005(a), held a federal district court in Houston. The surviving spouse, son, and estate had sought to recover under a special exception to the Texas exclusive remedy provision of the state’s Workers’ Compensation Act. That provision, Tex. Lab. Code § 408.001(b), allows for exemplary damages in cases where an employer’s gross negligence results in an employee's death. The court noted (a) that § 41.005 was the more recently enacted law, and (b) the Texas Legislature had expressly declared that its provisions prevailed over all other law to the extent of any conflict [see Tex. Civ. Prac. & Rem. § 41.002(c)]. The court added that the statute was constitutional and granted the employer’s motion for summary judgment.
Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is the co-author of Larson’s Workers’ Compensation Law (LexisNexis).
LexisNexis Online Subscribers: Citations below link to Lexis Advance.
See Kinney v. Brink’s Inc., 2018 U.S. Dist. LEXIS 4834 (S.D. Tex. Jan. 11, 2018)
See generally Larson’s Workers’ Compensation Law, § 105.05.
Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law