In 2009, a deal struck moments before jury selection in Philadelphia Common Pleas Court was set to begin, Dietz & Watson agreed 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 & 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.”