OPINION ON MOTION FOR REHEARING
KENNEDY, Justice.We think the argument made by appellee in his motion for rehearing, and the case law in support thereof, to be worthy of discussion. The appellee predicates his argument on Texas Industries, Inc. v. Lucas, 634 S.W.2d 748 (Tex.App.—Houston [14th Dist.] 1982, no writ), a case factually analogous to the one at bar. In Lucas the plaintiff had received workers’ compensation benefits from the insurance carrier of his employer, Precast Erectors, Inc., for injuries received in a construction related accident, and subsequently brought suit sounding in negligence against two other subcontractors, TXI Structural Products, Inc., and Everman Corporation. In response to special issues the jury apportioned fault as follows: TXI 73%, Everman 9%, and Precast 18%. The trial court then disregarded the jury’s findings concerning the fault of the employer, Precast, and assigned one third of that percentage (or an additional 6%) to Everman, and two thirds (or an additional 12%) to TXI.6 Thus, the final judgment apportioned fault 85% to TXI and 15% to Everman.
The Court of Appeals held that the trial court did not err in disregarding the jury’s findings. In so doing the Court noted the decision in Deal v. Madison, 576 S.W.2d 409, and then distinguished that case.
“However, we disagree that the employer is like a ‘settled’ joint tortfeasor. A settlement is an agreement by which parties reach an understanding in compromise of disputed matters. [Citation omitted.] It necessarily follows that only those matters for which a party has a cause of action against another are disputed. If that were not the case, no reason for entering into a settlement agreement would exist.
A party is barred from seeking contribution and indemnity from a party against whom the injured party has no cause of action. [Citation omitted.] If appellee’s cause of action against Precast is precluded by Art. 8306 § 3, then it defies reason to suggest that Precast is a ‘settled’ tort-feasor.
This issue is one of first impression as appellants do not seek contribution and indemnity from Precast but only a consideration of the jury’s findings so that a percentage attributable to Precast’s negligence may be deducted from the amount they will have to pay. However, we base our decision for this point of error on the policies espoused in General Elevator Corp. v. Champion Papers, 590 S.W.2d 763 (Tex.Civ.App.—Houston [14th Dist.] 1979, writ ref’d n.r.e.) and Superior Commercial Carpet Service v. American Chain and Cable Co., 623 S.W.2d 747 (Tex.Civ.App.—Houston [1st Dist.] 1981, no writ).” 634 S.W.2d at 756-57.
It stands to reason, of course, that if the trial court is free to disregard such findings and simply reapportion that percentage of the injuries found to be attributable to the employer, then the issue of the employer’s negligence should never be submitted in the first place. With all respect to our learned colleagues who fashioned Lucas, we are unable to agree with their conclusions, and decline to follow that case.
While an injured employee of a subscribing employer who has opted to receive benefits under workers’ compensation is barred from pursuing a common-law negligence action against his employer, such is the case because the two have elected to settle disputes concerning compensation for employment related injuries in the manner prescribed by the Workers’ Compensation Statutes. Cohn v. Spinks Industries, Inc., *492602 S.W.2d 102, 103 (Tex.Civ.App.—Dallas 1980, writ ref’d n.r.e.). If the employee has complied with the appropriate statutory notice provisions, he may forego workers’ compensation benefits and proceed against his employer under common-law theories of recovery. Tex.Rev.Civ.Stat.Ann. Art. 8306, Sec. 3a (Vernon’s 1967). We cannot agree with the holding in Lucas that a distinction exists between a settling tortfeasor and a subscribing employer who is insulated from further legal actions, solely for purposes of determining the extent of negligence of the remaining defendants. Each has bought his peace with the injured plaintiff. The potential inequities in holding otherwise are all too apparent.
In a case such as the one at bar, the remaining defendants would be liable for 100% of the plaintiff’s damages despite the fact that the evidence raises the possibility that they were not 100% at fault for his injuries. Thus, the plaintiff is enabled to recover twice for at least a portion of his damages, while the remaining defendants have no legal recourse against the employer. The facts and result in Lucas bear this out. In reviewing that case, we cannot help but consider how inequitable the Court’s holding would be were the figures in the comparative negligence issue changed. Suppose, for example, that the jury had found the negligence of TXI and Everman each to be 5% to blame, and deemed that of Precast to be 90%. Disregarding the jury’s findings and laying the entire liability at the door of the remaining defendants with no available claim for indemnity would be unconscionable.
Additionally, we do not agree with the reliance had in Lucas upon Superior Commercial Carpet Service v. American Chain and Cable Co., supra. In Superior the issue was whether it was necessary to join the employer as a party defendant in order to have its percentage of negligence determined, even though the remaining defendant admitted that it had no claim against it for indemnity and contribution. The Court held that the employer’s presence as a party defendant was not necessary, and that the trial court was correct in granting the employer’s motion for summary judgment. 623 S.W.2d at 750. The Court indicated in dicta, however, that in order for the jury to be provided with all of the facts it may be acceptable for the defending tortfeasor to make reference to and obtain instructions regarding the negligence of the non-party as the possible cause of the injury in question. Id.
Appellee’s motion for rehearing is overruled.
. The means by which the trial court arrived at this solution to the problem of reassignment of Precast’s percentage of fault once the decision had been made to disregard the jury’s findings is not known.