In a deal struck just moments before jury
selection in Philadelphia Common Pleas Court was set to begin,
Dietz & Watson agreed Friday to pay $10 million to a
construction worker who was paralyzed in a fall while erecting a
pallet rack, plaintiffs lawyers said.
If the case v. Dietz & Watson had gone to
trial, lawyers said that one of the key disputes would have been
whether plaintiff, who was hired by a temporary services agency,
had legally become the equivalent of a Dietz & Watson employee
under the so-called "borrowed servant" doctrine.
The issue was a critical one because, as a borrowed servant, the
plaintiff would have been strictly limited to the benefits
available under workers' compensation laws. But if the jury had
concluded that he was not a borrowed servant, the plaintiff would
then have been entitled to seek a sizeable award on his negligence
claim against Dietz & Watson.
Plaintiffs attorneys Robert J. Mongeluzzi and Andrew R. Duffy of
Saltz Mongeluzzi Barrett & Bendesky said they set out to prove
during discovery that he was never supervised by Dietz & Watson
employees but instead received all his instructions from another
worker from the temp agency, Performance Staffing.
In court papers, Mongeluzzi and Duffy (no relation to reporter
Shannon P. Duffy) argued that he and the other workers from
Performance Staffing "were not given any instructions or directions
by anyone from Dietz & Watson on how to safely erect the pallet
storage rack."
The task of erecting the pallet storage rack required the
plaintiff to work at heights of up to 16 feet, but Dietz &
Watson failed to provide fall protection, the plaintiffs lawyers
argued in pretrial briefs.
Mongeluzzi said the plaintiff's team scored a significant
victory when Philadelphia Common Pleas Court Judge Marlene F.
Lachman refused to dismiss the suit, holding that the issue of the
borrowed servant defense hinged on factual issues that should be
decided by a jury.
Several attempts to settle the case had failed, Mongeluzzi said.
But on the day before the trial was set to begin, Mongeluzzi said,
two last-minute videotaped depositions were taken of Dietz &
Watson employees that gave added ammunition to the plaintiff's
side, clearing the way for an 11th-hour settlement.
Defense attorney Alan C. Milstein of Sherman Silverstein Kohl
Rose & Podolsky in Pennsauken, N.J., declined to comment on the
settlement.
But in court papers, Milstein had argued that the evidence would
show that the plaintiff and the other workers from the temp agency
had received explicit instructions from Dietz & Watson
supervisors that they should not climb atop the pallet rack while
it was under construction and that they should use safety
equipment.
On the day of the accident, Milstein argued in his brief, that
the plaintiff decided on his own, while the supervisors were away,
that he could climb onto the rack to adjust one of the horizontal
pieces, and that the accident occurred when he "began to kick" the
piece and it "jarred loose."
If the case had gone to trial, Milstein was hoping to set a
precedent for changing the way lawyers and judges talk to juries
about the "borrowed servant" doctrine.
In a motion in limine, Milstein argued that jurors might find
the term "servant" to be offensive and that it should therefore be
replaced by "employee."
"While the doctrine and phrase have long been a part of
Pennsylvania jurisprudence, the phrase 'borrowed servant' conjures
an image inconsistent with contemporary life and is out of place in
today's society," Milstein wrote.
"It is an unfortunate phrase from another era that conjures an
immoral time in our history. To require that a jury apply it to an
African-American such as the plaintiff would be prejudicial to the
extreme," Milstein wrote.
Under workers' compensation laws, Milstein said in his brief,
the terms "employer" and "employee" are synonymous with "master"
and "servant."
But Milstein argued that "employees, borrowed or not, are not
servants, and a phrase which suggests they are is
inflammatory."
As a result of Friday's settlement, Lachman never ruled on
Milstein's request that neither the court nor the plaintiffs
lawyers use the phrase "borrowed servant" and instead use the term
"borrowed employee." •