As a nonsubscriber, if a case does go to trial, do I lose all common-law defenses?
No. Since the first Texas workers’ Compensation Act in 1913, it has always expressly deprived nonsubscribers of the common-law defenses of assumption of the risk, contributory negligence and negligence of a fellow servant. Since then, however, the Texas Supreme Court has eliminated those three defenses from the Texas common law for all defendants. The statutory defense of proportionate responsibility is not available to defend an employee’s occupational injury negligence claim against a nonsubscriber, and pre-injury waiver agreements signed after June 17, 2001 are not enforceable as a defense to such a claim.
