$469,638 – Wrongful Death / Construction Site Accident

$469,638.90 Recovered for Slain Worker’s Family – Construction Site Accident

Type of Action: Negligence, Construction Accident, Wrongful Death

Injuries Alleged: Middle-aged male died when heavy objects fell onto his body while he was working at a construction site.

Name of Case: *Confidential *

Court and County with Case #: *Confidential, in a county east of Charlotte, NC*

Verdict or Settlement: Settlement at mediated settlement conference.

Name of Mediator: Sam Q. Carlisle, II, Pinehurst, NC, Mediator

Special Damages: $4,805.00 Funeral/Burial Expenses

Verdict or Settlement: Settlement

Amount: $469,638.90: $375,000.00 via tort recovery from general contractor; and, another $94,638.90 recovered from decedent’s employer-subcontractor via workers compensation.

Date of Verdict or Settlement: October 9, 2009

Most Helpful Experts (Name, Title, Location): Howard J. Rigsby, M.E., accident reconstruction engineer, OSHA & construction industry standards Charles R. Manning, Jr., Ph.D., P.E., accident reconstruction engineer Cynthia Hill, Markay Media, Durham, NC (video production); and, Mark Valentine, The Visual Advantage, Wendell, NC (medical illustrations, courtroom exhibits)

Insurance Carrier(s): *Confidential*

Lead Plaintiff’s Lawyer : Philip A. Mullins, IV of Thomas, Ferguson & Mullins, LLP (Durham), 919-682-5648, fax 919-688-7251

Description of Case, evidence presented, arguments made and other useful information: Liability was contested. Damages were contested. Decedent was an hourly employee for a subcontractor on a construction jobsite who provided manual labor. Decedent was living in a drug rehabilitation house and had been working for less than a week when this accident occurred. Decedent had very limited skill or experience working on any construction jobs. The general contractor specified how the subcontractor and its employees were to perform their work on this site. Plaintiff contended that such directions and supervision, or lack thereof, by the general contractor, constituted actionable negligence which proximately caused the fatal accident.

The defendant general contractor contended that it was not negligent. The general contractor asserted that the decedent was contributorily negligent such that any recovery by the Estate was barred by the doctrine of contributory negligence. Additionally, the defendant general contractor alleged that the decedent’s employer (subcontractor) was negligent and such negligence was intervening and superceding such that, even if the general contractor were negligent, which was denied, the Estate still had no right of recovery. The decedent’s family had recovered from the employer-subcontractor the statutory maximum allowed under the North Carolina Workmen’s Compensation Act for the decedent’s death. At the decedent’s compensation rate for the 400 weeks, that sum totaled $94,638.90. The subcontractor’s workers’ compensation insurance carrier asserted its right to subrogation as regarded any recovery from any third party. Due to insufficient evidence to support a Woodson claim, no claims were asserted by the Estate against the employer-subcontractor in this civil action. However, the Estate took the position that the employer-subcontractor’s negligence, which joined in and concurred with the defendant general contractor’s negligence, barred the subcontractor’s right to any workers’ compensation subrogation claim of lien. A number of depositions were completed of fact witnesses, the parties, and each party’s experts. OSHA cited the subcontractor and the general contractor for separate violations of safety standards.

The general contractor contested these citations and entered into an informal settlement agreement with NC OSH whereby the settlement could not be used as an admission against its interest in the wrongful death civil case. The general contractor’s experts opined that many of the citations were not grounded in fact and that none were causally related to the decedent’s fatal accident. The decedent had no tax records or proof of financial support of his surviving spouse or three minor children for the five years preceding the accident. The Plaintiff claimed he was actively working to turn his life around when he was killed due to the negligence of the defendant general contractor. The defense obtained some written evidence of marital problems and argued that the relationship between the decedent and his family members was not healthy and of minimal value should the case go to a jury. Plaintiff was able to negotiate with the employer-subcontractor’s workers’ compensation insurer a full waiver of its subrogation claim. Thus, the total recovery for this contested liability claim for the decedent’s family was $469,638.90. The decedent’s surviving spouse was deposed and presented very well. The defense was able to get her to admit many of the facts concerning marital issues and problems. However, she was able to explain their marriage, the decedent’s progress and rehabilitation, and their family’s interactions in the last weeks of the decedent’s life. She would have been a very strong witness before any jury. There were a number of witnesses who would have testified that the relationship between the decedent and his family was very, very strong in the weeks before his fatal accident. .

Amount Actually Recovered for Client: 100% recovery, ie., $469,638.90 (Four Hundred Sixty-Nine Thousand Six Hundred Thirty-Eight Dollars and Ninety Cents).