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Construction Accidents Can Have Civil and Criminal Consequences


A former construction foreman has been charged with four felony counts in connection with a 2008 construction accident.

April 07, 2011 /24-7PressRelease/ -- In the same way that a drunk driving accident may result in criminal (DUI) charges as well as civil claims (for property damage or injuries caused in the accident), worksite accidents may also give rise to both criminal charges and civil claims for damages.

A recent case out of San Luis Obispo County is a perfect example where both civil and criminal consequences arose out of a construction accident. A construction site foreman was charged with two counts of involuntary manslaughter and two counts of violating the Labor Code in connection with a worksite accident in 2008 that resulted in the death of two men.

Criminal Charges

Two workers were removing struts from a pipe laid in a trench when an excavator working on another section of the trench reportedly struck a city water line. Both workers were trapped in the trench, and drowned.

According to the San Luis Obispo Tribune, the foreman instructed the workers to continue digging even though he had been warned that there was a water line in the excavation area. Investigation documents indicate confusion whether there were utility lines, reported the New Times. The foreman told investigators that he may have looked at a site map upside down, not seeing the water line marking, or that he may have relied on an unmarked map.

He now faces a total of six years and four months in jail if convicted of all four felony charges.

Civil Settlement and Fines

Criminal charges were not filed against the construction company; instead, the District Attorney sought and the company has agreed to pay monetary and safety reform. The construction company has agreed to pay $3 million, which will be divided among San Luis Obispo County, the California District Attorneys Association and the City of Paso Robles. The company will also adopt new safety procedures to improve employee safety at its excavation sites.

According to a company vice president, other settlements outside of court were also made with the families of the victims.

The company is appealing two $70,000 fines levied against it in early 2009 by the Division of Occupational Safety and Health (better known as Cal/OSHA) for a serious and willful violation.

Recourse When Workers are Injured

While not every construction accident results in both criminal and civil consequences, injured workers still have the right to pursue compensation for their injuries -- in some instances pursuing damages against those whose negligence caused the worksite accident.

When a worker is injured in a construction-related accident, there are various types of recourse, including:

- Workers' compensation: Injured employees can file an administrative claim with the workers' compensation insurance for money for medical bills and lost wages

- Court settlement or litigation: Injured workers can file a civil action to pursue money damages

- Civil fines and penalties: State, federal or local agencies and entities may impose fines and penalties on the employer for safety or other violations.

- Criminal charges: The employer, or individual supervisors or co-employees, may face criminal charges when their role in the accident is so egregious as to rise to the level of criminal responsibility.

Not all recourse against the employer directly affects injured workers or their families. That is, civil fines or criminal charges are generally used to punish the employer, or as a basis for educating the employer and correcting the dangerous conditions that gave rise to the accident.

On the other hand, workers' compensation benefits are paid directly to the injured worker. Similarly, if a worker brings a courtroom action against the employer or supervisor, to the extent a jury award or court settlement is reached, that money would be paid directly to the injured worker. Verdicts and settlement money is used to compensate for medical expenses or loss of wages.

Jury awards can also be used to punish employers if the employer acted willfully, committed gross negligence or acted in disregard of humanity. In these instances, the court may impose punitive damages, which are awarded to the victim even though the purpose is to punish the employer.

Any workers who have suffered an illness or injury due to a workplace accident should contact a personal injury attorney to determine whether they have a claim for damages and to protect their right to claim those damages.

Article provided by Shapiro, Galving, Shapiro & Moran, PC

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Construction Company Owners Beware!


connecticut construction insurance, connecticut contractor insurance, contractor controlled insurance programWhile driving through a major Connecticut city recently, I saw a giant billboard labeled, “Truck Accident Counsel”. When I got back to the office I typed in the web address, and saw exactly what I expected, a law firm specializing in truck accidents.

For contractors in Connecticut (and any other company with heavy trucks) the game has changed. Just like in every other area of business, specialization is the order of the day. Unfortunately, you, the Connecticut construction company owner are the target.

More and more,  the deck is stacked against you. There are literally hundreds of state and Federal laws for you to comply with. Now there are attorneys who specialize in understanding those laws and ready to nail you with a large verdict if you’re not in compliance and then cause injuries in an accident.

If you’ve read this blog before, you know we believe strongly in risk management that goes far beyond buying insurance. Do you still think risk management begins and ends with buying the cheapest insurance? If you do, here is one law firm ready to teach you a lesson.

Is your construction company up to date with all the laws and regulations governing the use of commercial vehicles? Is every vehicle in compliance? Are all your drivers properly trained and is safety emphasized every morning as your fleet of truck hits the road?  Do you have written cell phone policies in place?

Learn the laws, commit adequate resources to safety or test your insurance policies in court.  Your choice. Your business may depend on it.

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If You Own a Construction Company, There’s a Bulls-Eye on Your Back


As I skimmed Saturday's Wall Street Journal, I saw a handsome couple featured in an ad for fractional jet ownership. The caption read, "Avantair allows us to be more productive and efficient as a law firm". My immediate thought was, "What kind of law firm uses a private jet?" I found the answer at their website.

They listed twelve settlements on their home page ranging from $350 million (United States record) all the way down to a measly $12 million. I guess that explains the jet as does the sub-header under their name, "Over $800 million in Verdicts and Recoveries". I believe that plaintiff's attorneys get 30-40% for their fee so on the conservative side that's $240 million. Not bad for a two person, husband and wife law firm!

You might think that your Connecticut construction company could never be exposed to the type of liability that would attract a law firm like this. Think again. Any business owner could go bankrupt tomorrow if they get on the wrong end of a lawsuit and lack the proper insurance coverage.


Here's a quick sampling of their settlements:

$23.4 million against a drunk driver who killed three people. $13.5 million of the verdict was for punitive damages, uncovered by insurance. How certain are you that no one is ever drunk behind the wheel of one of your company vehicles?

$25 million verdict for a man who fell while inspecting a building. Do you own any property? Could someone fall from a height of 12 feet? That's what happened here. (The verdict was in 1998. What would it be worth in 2010? $50 million?)

• $12 million for amputations due to electric shock

• In Miami-Dade County, Florida a jury awarded a 78-year-old woman and her husband $20.98 million for the injuries that she suffered in a car crash that left her on a ventilator for live. The plaintiff sued the driver and the driver's employer. The woman's attorneys successfully argued that the defendant driver was so distracted that he made no attempt to stop and slammed into the rear of the woman's car. After subpoenaing the employee driver's cell phone records they proved that he had been on the cell phone talking at the time. The case settled for $16.1 million five days after the verdict.

Connecticut construction company owners can't think they are immune from the liability described in the suits above. If you own property and you have employees and you own vehicles and equipment, you have the potential for a devastating lawsuit.

You need to change your buying criteria for insurance today. Contractors tend to go for the "fools gold" of cheap insurance. Don't you do that! You've worked hard to build your construction company. Get a good advisor and protect it with the right insurance coverage.

Does Your $5 Million Umbrella Policy Provide You With Enough Coverage??


The following article is taken form the web site of Connecticut-based law firm Stratton Faxon who represented the plaintiff in the case described here. There are four points for contractors to pay attention to:

1) Safety has to be a cultural imperative for your company

2) You have to read all contracts and understand the liabilities imposed by them

3) Think twice about using temporary help. What looks inexpensive in the short run can be very expensive in the long run if you lose your immunity to be sued by an injured worker

4) Re-think your limits of liability. This is a precedent-setting case and an injury like this can happen to a contractor of any size. $10 Million is the new minimum limit.

November 2, 2009

In the highest-ever construction injury settlement in Connecticut history, and one of the state's costliest personal injury cases, a North Canaan laborer has settled a federal negligence suit for $11.35 million.

The case of Benjamin Wohlfert v. Stop & Shop and Pyramid Contractors is bound to raise serious new questions about construction hiring practices and insurance. Contractors might now think twice about hiring tradesmen from temporary agencies without paying directly for their workers' compensation coverage. While not paying workers' comp premiums saves money at the outset, it leaves contractors more vulnerable to unpredictable tort liability down the line.

"We have seen a trend toward the hiring of temp workers because the contractors feel it is cheaper to do that than employ a union laborer," said plaintiff's attorney Joel Faxon of New Haven's Stratton & Faxon. "Historically, unions have had very strict training and safety practices. In the temporary worker market, there's no specific safety training requirement."

Benjamin Wohlfert, then 29, was working for Providence, R.I.-based Pyramid in March 2006 at the construction site of a North Canaan supermarket. Pyramid hadn't hired Wohlfert directly. Torrington-based Alternative Employment Inc. "leased" Wohlfert to Pyramid.

Wohlfert was with two other men -- carpenters Gerald Bates and Jean Kennedy -- both of whom were working for Pyramid in a similar arrangement with other temp agencies.

It happened to be St. Patrick's Day. "The boys are probably thirsty," said Faxon. "It doesn't take a genius to find that."

Perhaps that's what led them to do something dangerous. Before knocking off for the day, they had to retrieve from the roof of the project a metal-cutting tool, known as a plasma cutter. But the one ladder to the roof had already been removed by the roofers. So Bates, who was the de facto foreman, instructed Kennedy and Wohlfert to get into a three-sided plywood box used for picking up construction debris.

Bates then lifted the box with a type of forklift that was not designed to pick up people. When the lift was some 25 feet in the air, the box began to break apart. Kennedy jumped to the roof - and to safety. Wohlfert fell to the ground, severely injuring his spine, and became a paraplegic. He required spinal fusion surgery, two months of hospitalization, and was transferred to a Colorado rehabilitation facility for "several more months," according to federal court documents.

After returning to Connecticut, he suffered from infections and had to be hospitalized again. During the second hospital stay, he contracted the drug-resistant bacterial infection known as MRSA, and had to have a substantial portion of his hip removed.

Temp Pros, Cons
The use of construction workers from temp agencies has some advantages for general contractors. By paying the agency a premium over the worker's normal hourly wage, the contractor no longer has to handle the paperwork and expense of workers' compensation coverage, payroll or unemployment insurance. Union contracts, requirements and protections also don't come into play.

As one Pyramid supervisor testified in a deposition, a worker doesn't need to be fired or laid off. The temp agency is simply notified that he or she is "no longer needed," with a notation on his or her time card. This effortless termination process removes the threat of a suit for discriminatory firing.

But because Pyramid did not pay the workers' compensation insurance for Wohlfert, it did not get the benefit of the workers comp "bar" to a civil suit. In other words, Wohlfert was able to collect workers' comp payments without jeopardizing his ability to sue Pyramid, which wasn't his actual employer.

Wohlfert went on to sue Pyramid and Stop & Shop directly in federal court, and that was the case that recently settled for $11.35 million. At first he was represented by Trumbull lawyer Richard G. Kascak Jr., of Mihaly & Kascak, who referred the matter to Stratton & Faxon.

Most often, co-workers such as Wohlfert, Bates and Kennedy cannot sue each other for on-the-job injuries. But that was not the case here, because all were hired by temp agencies. Wohlfert sued Kennedy, TradeSource, Bates and Spec Personnel in Bridgeport Superior Court. That case is scheduled for trial in May 2010.

Pyramid was represented by James G. Geanuracos, of West Hartford's Malliet & Geanuracos. "We're under a confidentiality agreement to only disclose the name of the plaintiff and the settlement amount," Geanuracos said. "I can't comment further."

Pyramid also sued several third party co-defendants. They included carpenter Bates, an Orleans, Mass. resident; his Fairfield temp agency, Spec Personnel; carpenter Kennedy; and his Warwick, R.I., temp agency, TradeSource Inc.

After Pyramid brought in TradesSurce and Kennedy as co-defendants to share in any potential liability imposed, TradeSource countersued Pyramid. The personnel agency said that its employment contract had an indemnity clause purportedly requiring the general contractor to hold TradeSource harmless from any on-the-job liability. On Oct. 29, TradeSource and Pyramid settled and withdrew their federal court claims.

Unexpected Deep Pocket
Normally workers' compensation coverage limits the liability exposure of contractors and building project owners, like Pyramid and Stop & Shop. But the fact that separate employment agencies were making the payments to the three key workers prevented the contractor and owner from enjoying the protection and benefit of the workers' comp bar. In such a case, the injuries suffered by Wohlfert become liabilities in the less predictable realm of tort law, to be compensated from general liability coverage. It was no different than if a member of the general public was injured on the job site.

In this regard, this case is analogous to the momentous construction case of state case of Pelletier v. Sordoni-Skanska, in which a subcontractor's employee won a $23 million verdict against the general contractor. The defendant in that case, like the defendants in the Wohlert case, had the means to pay a huge judgment. But in the Pelletier case, Sordoni won a 2008 reversal at the state Supreme Court, and contractors breathed a sigh of relief.

In the current case, no new case law has been created, but the large settlement is a loud and clear warning of the potential risks when hiring temporary workers through an agency.

General contractor Pyramid, in its federal court actions, has advanced an untested legal theory. It noted that it paid a premium over the workers' normal salary to the three temp agencies. Pyramid contended that by doing so, it was in essence paying for their workers' comp insurance, and deserved to get the legal benefits of doing so.

Various defendants in the federal case had motions for summary judgment pending when the case largely settled, and U.S. District Judge Alfred V. Covello had not ruled on any of them. Now that the two main defendants have settled the federal action, there is no longer any need for Covello to rule on the outstanding summary judgment motions. It is therefore not likely that any court will now rule on the defendants' theory of "pass- through" workers' compensation immunity.

Covello, in a ruling on a motion to dismiss last year, signaled that he was unlikely to embrace that theory, said Faxon, because a Connecticut statute specifically states that the temp agencies are responsible for paying the workers' comp coverage. Another statute says the benefit or tort immunity flows to the employer paying the workers' comp premium, he added.

"The statute is very specific about who can claim workers' comp immunity from suit in a leasing arrangement," said Faxon, "and it's only the temp agency.

Lawsuit Madness


Faces of Lawsuit is a project of the U.S. Chamber Institute for Legal Reform. These were the contenders for their 1st Annual Most Ridiculous Lawsuit of the Year Poll:

January - Woman crashes on curve, sues county claiming 10mph speed limit was inadequate warning

February - Customer sues restaurant chain after toilet paper rolls from "unreasonably dangerous toilet paper dispenser" fall onto his hand

March - Illegal immigrants sue rancher who stopped them on his property at gunpoint and turned them over to the Border Patrol

April - Tourist sues New York club after she slipped while dancing on top of the bar

May - Woman microwaves hair removal wax, spills it on herself, and sues manufacturer for "placing such dangerous products into the stream of commerce"

June - Inmate sues to avoid being named world's most litigious person

July - Double-murderer sues to claim his victims' classic Chevy pickup

August - Tourist sues hotel, claiming swimming pool got daughter pregnant

September - Dolphins splash, woman sues

October - Wife kills husband, sues for his pension's survivor benefits

November - Neighbor sues woman for smoking in her own home

December - Holocaust denier sues Auschwitz survivor, alleging memoir contains "fantastical tales"

After reading this I don't know whether to laugh or cry. Where is the public outcry? When are we going to stop lawyers from bringing suits of this sort? What risk management program will work when people take no responsibility for their own behavior?

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