United States: Employee's Tort Action Against Non-Conforming Employer May Not be Removed

A Texas injured employee's tort action against a non-subscribing employer arises out of common law--not from the Texas Workers' Compensation Act ("the Act")--held a federal district court sitting in the court's Western District. Accordingly, the tort action was properly removed from the Texas trial court where it had been filed; diversity jurisdiction existed. The court acknowledged that, generally speaking, 28 U.S.C.S. § 1445(c) barred removal of any civil action "arising under the workmen's [sic] compensation laws" of the state. The court said that dicta in Kroger v. Keng, 23 S.W. 3d 347 (Tex. 2000), convinced the court that the Act did not create the employee's cause of action against his employer; it only modified aspects of it (the employer lost various common law defenses).

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance.

See Kaspar v. Ryder Integrated Logistics, Inc., 2020 U.S. Dist. LEXIS 214581 (W.D. Tex. Nov. 17, 2020)

See generally Larson’s Workers’ Compensation Law, § 102.01.

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law

For a more detailed discussion of the case, see

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