St. Mary's Law Journal


The Texas Supreme Court’s decision in Kroger Co. v. Keng appears to resolve the question of whether an employer who does not subscribe to worker’s compensation can avail itself of the proportionate responsibility scheme in Chapter 33 of the Texas Civil Practice and Remedies Code. The question left unresolved is whether proportionate responsibility is available in nonsubscriber cases involving additional independently liable defendants. In Keng, the Court premised its holding on Texas Labor Code § 406.033, concluding nonsubscribing employers are prohibited from proving its employees were negligent. The Keng Court declined to decide whether proportionate responsibility was unavailable per se. Therefore, Keng does not preclude an independently liable non-employer defendant from relying on the provisions in Chapter 33 to reduce its percentage of responsibility in nonsubscriber cases. Logically, if Chapter 33 is applied to cases involving a nonsubscribing employer, an independently liable defendant, and a partially responsible plaintiff, the result would be a nonsubscribing employer’s liability is reduced by virtue of the plaintiff’s fault. The Texas Supreme Court’s recent decision in F.F.P. Operating Partners, L.P. v. Duenez supports the argument that proportionate responsibility should be applied as written in Chapter 33 in nonsubscribing cases involving additional independently liable defendants. In Duenez, the Court noted the legislature’s clear intent to protect the policy of fault-based apportionment of responsibility set forth in Chapter 33. That same Court held proportionate responsibility applied to all tort cases except those clearly and expressly excluded by statute. Regardless of whether Duenez ultimately results in a reversal of Keng, proportionate responsibility should be applied to nonsubscriber cases involving other independently liable defendants. Nothing about Keng’s rationale would preclude application of proportionate responsibility, and Duenez disposes of any argument that proportionate responsibility does not apply.


St. Mary's University School of Law