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On February 26 the Texas Supreme Court heard oral argument to determine whether the parents and sister of Fabian Escobedo, a truck driver who died from a rollover accident on the job, may sue the Employer. The Employer argued that recovery of benefits under the Texas Workers’ Compensation Act is the exclusive remedy for Mr. Escobedo and that the parents and sister could not bring a wrongful death action under the gross negligence exception in the Act because that exception authorizes actions only by a surviving spouse or heirs of the body of the deceased. The parents and sister pointed out that the supreme court has previously held that the Act does not bar a deceased’s cause of action forintentional injuries which survive to the estate under the Texas Survival Statute. Accordingly, at issue is whether Mr. Escobedo suffered personal injury prior to deathdue to the Employer’s intentional acts or omissions.
To support their claim, the parents and sister pointed to evidence in the record that (1) oil fields in West Texas and South Texas were booming and the Employer could not keep up with the demand for drivers, (2) drivers were required to work unsafe amounts of overtime, (3) the Employer required drivers to work illegal amounts of time, (4) the Employer required drivers to falsify their driver logs to cover up the illegal hours, and (5) a terminal manager warned a supervisor that a driver would be killed because of the unreasonable driving hours and the supervisor said “we will cross that bridge when we come to it.”
The supreme court has previously held that the intentional failure to furnish a safe workplace does not rise to the level of intentional injury, except when the employer believes his conduct issubstantially certain to cause injury. Thus, in the present case, the task for the supreme court is to decide whether the evidence could support a finding that the trucking company believed its conduct was substantially certain to cause injury to Mr. Escobedo. If so, the parents and sister will be allowed to sue.
The Corpus Christi court of appeals concluded that the evidence in this case could support such a finding. The supreme court’s decision is expected later this year. MO-VAC Service Co. v. Primitivo Escobedo, et al.