Notice to Employer of Intention to Bring a Common Law Claim After An Accident

In Ferguson v. Hospital Corp. Int'l, Ltd., 769 F.2d 268 (5th Cir. 1985), two nurses were in an automobile accident in Saudi Arabia. Ferguson, 769 F.2d at 269. They filed workers' compensation claims against their employer. Id. at 270. At about the same time they filed their claims, their employer, for the first time, gave oral and written notice that it had provided for payment of compensation benefits for the injuries they had sustained. Id. The Court held the employer's failure to give an earlier notice that it had provided workers' compensation coverage meant it was not a subscriber under the Texas Workers' Compensation Act. Id. at 273. In view of that, the court held the employer could not assert that the nurses' remedy was limited to the exclusive remedy of workers' compensation. Id. The court held the nurses did not waive their common law claim by failing to notify their employer, within five days of receiving its post-accident notice, of their intention to retain the right to bring a common law claim. Id. at 274. Finally, the court held the nurses' common law claims were not barred by the exclusive remedy provision because there was no final judgment for compensation. Id. at 275. Subsequently, the Texas Supreme Court held that a final resolution of the compensation claim is not always a necessary element of the election of remedies defense. See Medina v. Herrera, 927 S.W.2d 597, 605 (Tex. 1996).