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Wrongful Death on the Job | What to Look for in a Wrongful Death Attorney

In this podcast episode, Josh and Aaron talk about a tough topic, the rights of family members who have lost a loved one from an on the job wrongful death accident. They walk through the different kinds of wrongful death cases and some of FVF’s experiences advocating for our clients whose family members tragically lost their lives on the job. Listen in to learn what to look for in a wrongful death lawyer and why it’s absolutely essential to find an attorney who will leave no stone unturned in these cases. FVF’s Summary Judgment podcast is available wherever you listen to podcasts including Apple Podcasts, Spotify, iHeart Radio, and more.

Introduction: Thank you for tuning in to Summary Judgment, where Austin Personal Injury Attorneys, Josh Fogelman and Aaron Von Flatern of FVF Law discuss the ins, outs and in betweens of personal injury cases.

Josh Fogelman: Welcome back to Summary Judgment. My name is Josh Fogelman, I’m one of the founding partners of FVF Law. I’m here today with my co-founding partner, Aaron Von Flatern, and we’re here to talk about a little bit of a difficult topic, which is, what are the rights of people who have lost a family member or a loved one in an accident that happens on the job, kind of opening the door to some wrongful death statutory discussion? And our firm has had some experience in handling some of those cases. Aaron, can you kind of talk about what the law is like in the wrongful death context for on the job injuries?

Aaron Von Flatern: Yeah, let me start off by saying that if you’re listening to this podcast and you’re in this situation, obviously our heart goes out to you. And one of the struggles we have in this area is that your rights are very limited, and it’s important to get really good advice on this. It’s important you have good advocacy on it. There is a way to make these cases work. They are challenging. We’re doing this podcast without a script, we just want to talk to you because this is one of those situations where there’s so many different facets to it. And I’m just going to start by saying, there’s two worlds. There’s the workers’ compensation world, and then there’s the tort world, okay? So the workers’ compensation world is where your employer has secured a policy that pays automatic benefits, based on whatever happens at the job. So maybe you got hurt and you’re out and you’re getting a weekly check, or if there’s been a death, there might be a death benefit that pays to the family.

What we’re talking about, and what our law firm does specifically is the tort aspect of it. That’s where someone’s done something wrong. So if you’re in a situation where you know someone has done something wrong and it’s killed a worker, what we investigate is whether or not the law will allow us to pursue the employer and anyone else who might have been on that job site. The employer has all these protections. There’s a lot of names for it, exclusive remedy, or they call it comp barred. And essentially what it means is even if the employer did something wrong, your only recourse as a family is to go to those workers’ comp benefits. But there’s a big exception, and the exception’s guaranteed by the Texas constitution. It’s reiterated in the Texas labor code. And that exception is when the employer has been grossly negligent. And gross negligence is a special term, it’s way beyond regular negligence. It requires an extreme risk. It requires that risk be both a high chance of something bad happening, and that when that bad thing happens, it’s likely to be very bad. In other words, really bad injuries, really bad harm, or possibly death.

Both of those have to be true. And, the actor that you’re blaming has to have appreciated that and known, “That’s a real extreme risk, but I’m going to proceed anyway.” And they call that proceeding with conscious indifference. That’s a tough case to prove for any lawyer. It requires the defendant tell you almost out of their own mouth that they had an evil intent, and you can just picture some of these situations. Unfortunately, they’ve happened here in Texas. You have a valve in a refinery and the engineers come to the company and say, “This valve, if you don’t change it, it’s going to blow up by Thursday.” And they don’t change it because it costs them more money than they’re worried about the explosion costing, it’s just a cost benefit analysis. They say, “No, we know that’s an extreme risk. We know people could probably get hurt. We know people might die. But that would cost us too much money to replace.” And then the explosion happens.

That is a classic example of a gross negligence situation. And unfortunately, even in the case that I just described, which is loosely based on a real case, the Texas Supreme Court has raised questions as to whether that can even work. And so when you start to analyze these cases, you come up against statutory caps as to how much you can recover, and there are just a lot of questions to investigate. But that being said, Josh, let me just turn it over to you and you can kind of describe maybe just one case that we’ve worked on in this area and some of the challenges that we faced.

Josh Fogelman: Yeah, absolutely. And I want to reiterate that it’s incredibly important to know when you’re analyzing a client’s rights and potential remedies, you must first analyze which type of case you’re looking at. Are you looking at a case where the employer has done something careless that has resulted in your family member’s death? Or are you looking at a situation where your family member on the job was killed by somebody wholly unrelated to your employer? And we’re talking about situations where a person was killed as a result of the employer’s negligence. But even beyond that, the employer has workers’ compensation in place, which dramatically limits the employee’s remedies under that situation. If there’s no workers’ compensation in place, it’s a completely different analysis. It’s much easier…

Aaron Von Flatern: That’s a great point.

Josh Fogelman: Much, much easier to have a recovery for the wrongful death claim, but in the workers’ compensation case, as you suggested Aaron, we got to prove gross negligence in order to open the door to damages, which are then capped. Aaron and I worked a really complicated case involving an oilfield services company, where our client, unfortunately, had fallen asleep at the wheel and caused a collision that he ended up perishing in. And we kind of took a step back and tried to understand, well, how did this happen and how can we evaluate and prove that there was gross negligence? Because his employer had worker’s compensation in place, and we needed to prove gross negligence in order to even have a right to assert recovery. And it’s just hard, it’s a hard thing to do. We took dozens of depositions, come through thousands of pages of company records and corporate policies and analyzed a bunch of federal regulatory data, and were able to actually prove that this company had been knowingly fraudulently crafting these drivers logs that the law requires them to keep in order to limit the number of hours that people behind the wheels of big trucks are able to be on the road.

And they were abusing and creating fraudulent records in order to allow their employees to work around the clock in violation of federal statute, so that they could pull oil out of the ground at an unprecedented rate, so we proved that basically our client hadn’t slept in five days before the company put him behind the wheel of an 18-wheeler and allowed him to fatally injure himself. That’s sort of indicative of the standard that the law now requires a person be able to prove before you have the opportunity to recover. Gross negligence is, it’s basically malicious conduct, it’s reckless endangerment, knowing that you’re putting somebody almost certainly in harm’s way and just not caring about it. Really, really complicated stuff.

Aaron Von Flatern: Yeah, I think you did an amazing job describing that case and the factors in it. If you’re listening to this and thinking, “Well, that’s just obviously evil and surely that was just an amazing outcome in that case.” I think we might have mediated that case multiple times, maybe three times, and what we learned… What we kept hearing back from their side is, “Yeah but, you’re capped.” In other words, your best day in court with this case has already been determined by the Texas legislation, and it was a specific amount that was their worst day in court, and that became the ceiling upon which we kept balancing as we tried to negotiate the resolution in that case, it was a really hard-fought battle that required dozens of depositions, thousands of pages of discovery, but I was particularly proud of that case and our work in it, especially after having called the lawyers who had worked on cases that failed at the Texas Supreme Court who reported to us that they wouldn’t take a case like that, they just wouldn’t. And so if you’re in this situation, and I’m sorry if you are, the important thing to remember, is that if you get turned down by a lawyer, it’s because of how challenging this area is, please keep calling.

Don’t give up. We met more lawyers who didn’t know anything about this area of the law, who claimed to be specialists in personal injury during that case and some others after it than had actual expertise in it, it’s kind of rare to find a lawyer who’s been through these wars and knows how to win them, so not to toot our own horn, but this is an area that I feel particularly proud of our firm on, and Josh, I think you’d agree that even with those caps, they can be worthwhile cases to work on.

Josh Fogelman: Yeah, I mean, you have to evaluate every single case for its own facts and circumstances, a lot of lawyers will look at wrongful death cases where workers’ compensation is in place and immediately be scared off because the bar is so incredibly high to be able to open the door to a potential recovery from the employer, but every case is different and you have to do some digging, not the least of which is trying to understand whether there is even workers’ compensation insurance in play. Aaron, I understand that the worker’s compensation situation in Texas is somewhat complicated. Can you talk about some of the things that Texas has done to extend workers’ compensation to people who might not otherwise believe that they have it?

Aaron Von Flatern: There’s a couple of things here. Let me start by first saying that Texas is one of only two states, and right now it might be the only state that allows employers to completely opt out of the workers’ compensation system. We call those defendants non-subscriber employers and those are employers that you can sue for regular negligence, just the regular old type of case that we’re used to seeing in car wrecks. Someone did something wrong and somebody got hurt as a result, and we asked them to compensate according to Texas law. Apart from that, what Josh is talking about here with employers who… You’ve seen this at construction sites. There’s five or six trades out there, there’s the general contractor, there’s the owner, there might even be a city government laying on top of all that, who owns the land, and you’re saying to yourself well, not all those employer are going to pick workers’ comp, some of them might be non-subscribers, and as personal injury lawyers, we ask ourselves, “Are there any avenues here that we need to explore?” Perhaps on a construction site, you might have some framers who did something that contributed to a collapse of a structure or something like that.

Well, the insurance companies and the owners of these construction sites have gotten very sophisticated and they put together these policies that are called wrap-up policies or OCIP policies, which I don’t even remember what that stands for, but essentially, it means that the owner or the general contractor on the job is going to pay extra to cover every single person who steps foot on that job under workers’ comp and therefore bar these lawsuits, completely block them through a kind of immunity. And what they do in the backend is they charge the subcontractors for that out of what they’re being paid. And so, it’s a smart solution on their part, unfortunately, from our perspective, workers’ compensation, although it does have some benefits, you get a weekly check and eventually you might get some kind of small lump sum for a permanent injury, workers’ comp is extremely limited compared to all of the harms and losses that someone sustains after an incident that permanently injures them, and so if there’s an avenue to get around it, we’ll find it.

Sometimes it may require that you go outside of that bubble, we call it, to find flaws, and maybe the architecture design of a structure, if it’s, say, collapsed and we’ve had that case before. So bottom line, if it’s a work-related injury, you are going to hear from all kinds of supposed experts, friends and family who have been through workers’ comp claim, and they think because they’ve been through it, that they know exactly what it means and exactly what your rights are and they can tell you how they’ve gotten burned by the workers’ comp system, please call us because it is not what it appears, it requires a lot of investigation and a lot of questions being answered before we can tell you whether you have a good case or not, or whether that’s one that we can prosecute for you.

Josh Fogelman: Yeah, and I think if you’ve unfortunately lost somebody for an on-the-job accident and you just don’t really know where to turn or you’re getting conflicting information from law firms, please give us a call, we’re happy to help. We understand how to handle workers’ comp, death cases, and also death cases where workers’ comp is not at play at all, we’re happy to help at least give you some counsel and advice so that you can understand what your rights and options are. So this has been another episode of summary judgement. We hope that you found it helpful and hope to see you next time.



Fogelman & Von Flatern is a personal injury law firm that believes it matters why we practice law: to make sure good people in unfair circumstances who want reasonable options are taken seriously, especially by their attorney. We value transparency, compassion, and justice, and we strive to embody that in our practice. At FVF, you can trust that you've got the best people on your case, for the right reasons.

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