The Texas Supreme Court ruled that a man who was injured while working for an employer that opted out of the state workers’ comp system cannot sue the company’s liability insurer after his hand was amputated in a work accident, until his employer’s liability toward him has been established. Rafael Zuniga worked for San Diego Tortilla in San Diego, Texas, and his hand was amputated in September 2012 while operating a tortilla machine for the company. Zuniga filed a tort lawsuit against San Diego Tortilla. However, Essex (the tortilla-maker’s liability insurer) investigated his accident and determined that its liability policy would not cover Zuniga because he was a San Diego Tortilla employee when he was injured, court filings show. San Diego Tortilla denied that Zuniga was an employee, instead claiming that he was an independent contractor. Essex disagreed with that assessment, but agreed to defend San Diego Tortilla against Zuniga’s lawsuit. A trial court denied San Diego Tortilla’s motion to dismiss, but the Supreme Court reversed the decision. Zuniga must now prove San Diego Tortilla’s liability before proceeding with his tort case.
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