On May 22, 2020, the Supreme Court of Nebraska, in
Sellers v. Reefer Systems, Inc., ruled that under Nebraska statute 48-125(4)(b), the details of the attorney-client fee agreement in a workers compensation case is not a necessary component of the affidavit required by Supreme Court rule 2-109(F) that establishes the procedure for attorney fees in appellate cases. Nebraska statute 48-125(4)(b) states that reasonable attorney fees will be allowed to the employee by the appellate court if the employer appeals a workers compensation award and fails to obtain a reduction in the awarded amount.
In this case, the supreme court reversed an appellate decision denying the employee attorney fees because the affidavit did not provide details of the fee agreement. The supreme court concluded that reasonable attorney fees mandated by 48-125(4)(b), as a matter of public policy, do not depend on the terms of the fee agreement. The court found that the affidavit contained sufficient justification as to the extent and value of the attorney’s services to make a meaningful determination of the reasonable attorney fees to which the employee was entitled.
Texas—Intentional Tort Exception to Exclusive Remedy
On June 12, 2020, the Texas Supreme Court, in
Mo-Vac Service Co. v. Escobedo, held that for the intentional tort exception to workers compensation exclusive remedy to apply, an employer must believe that its actions are substantially certain to result in a particular injury to a particular employee, and not merely highly likely to increase the overall risk of injury.
In this case, the estate of a truck driver who fell asleep at the wheel and was involved in a fatal auto accident brought a tort suit against the employer alleging that the employer forced the driver to work excessive hours leading to the fatal accident. The estate contended the employer’s actions constituted an intentional tort not subject to workers compensation exclusive remedy. The court analyzed prior decisions and noted that the intentional tort exception to exclusive remedy requires that the plaintiff show the employer believed it was substantially certain a particular employee would be injured from a definite risk.
The court reversed the appellate decision, finding that the evidence raised a factual issue under the intentional tort exception, and concluded that the claim against the employer was precluded by exclusive remedy.
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