The family of an electrician who was killed when a crane hook fell on him has reached a $17 million settlement in the Philadelphia Court of Common Pleas with the owner of the crane, the company contracted to inspect and repair the crane and the contractor of the decedent’s employer.
An examination of The Legal‘s sibling publication, PaLaw magazine, indicates this is the third-largest reported settlement in a wrongful death case in state court in the past 10 years.
In Nowak v. Veolia Energy Philadelphia, according to the plaintiff’s pretrial memorandum, decedent Adam P. Nowak was installing electrical equipment at defendant Veolia Energy’s Schuylkill Steam Plant when a crane hook fell about 60 feet from an overhead crane, striking and killing him.
Nowak’s wife, Michele Nowak, filed suit in the Philadelphia Court of Common Pleas against Veolia, the owner of the crane, along with Permadur Industries, which was contracted to perform repairs and annual inspections of the crane, and Kenny Construction Co., the contractor of Adam Nowak’s employer, Matrix Service Industrial Contractors, according to the plaintiff’s memorandum.
The plaintiff’s memorandum alleged that Veolia was negligent for failing to properly maintain the crane’s limit switch, which was designed to prevent “two-blocking,” a phenomenon in which a crane hook is raised too high, causing the cable holding the hook to snap and the hook to fall.
The plaintiff’s memorandum further alleged that Veolia failed to test the limit switch on a daily basis and failed to train its workers to perform such tests.
“As the owner of the overhead crane in the turbine hall, Veolia was responsible to make sure that the crane was safe to operate,” the plaintiff’s memorandum said. “Veolia is responsible for Adam Nowak’s death because it (1) did not make sure that its crane operators were trained, (2) ignored federal regulations and its own policies, (3) failed to fix a safety device which it knew was defective, (4) chose to save money instead of protect its workers, and (5) allowed a general disregard for worker safety to exist at all levels of management.”
Veolia, in its own pretrial memorandum, blamed Permadur for failing to properly inspect and repair the crane and said Kenny was responsible for job site safety.
The plaintiff’s memorandum also alleged that Permadur was negligent for failing, once it discovered during an inspection that the limit switch was antiquated, to take the crane out of service until the limit switch was replaced.
However, the plaintiff’s memorandum also said several members of Veolia’s management admitted that Permadur had advised Veolia to replace the outdated limit switches on its cranes following a two-blocking incident in 2004, but Veolia failed to do so.
According to the plaintiff’s memorandum, Michael Smedley, vice president of the mid-Atlantic region for Veolia, testified at deposition that the company failed to follow through on Permadur’s recommendations and that Veolia did not live up to its goal of making safety its highest priority.
Permadur said in its own mediation statement that it had alerted Veolia that the crane was not in compliance with Occupational Safety and Health Administration requirements and that Veolia had failed to take any corrective action.
According to Permadur, it recommended that Veolia upgrade to a newer type of limit switch following the 2004 incident but that Veolia “refused to spend the money” to make the upgrade.
Kenny, meanwhile, maintained in its mediation memorandum that it had no responsibility for the area where the incident occurred or for the maintenance and operation of the crane.
According to the plaintiff’s memorandum, Michele Nowak sought damages for pain and suffering, noting that Adam Nowak remained alive for about 10 minutes after the hook struck him.
Michele Nowak also sought damages for “loss of services, and loss of love, society, guidance and comfort” to her and the couple’s two young children, as well as Adam Nowak’s three children from a previous marriage, according to the plaintiff’s memorandum.
In addition, Michele Nowak sought punitive damages against Veolia, alleging “reckless disregard for the safety of its employees and on-site contractors.”
Ultimately, however, the parties agreed to settle the case for a total of $17 million, with Veolia contributing $15 million, Permadur contributing $1.5 million, and Kenny contributing $500,000, according to the plaintiff’s attorney, Robert J. Mongeluzzi of Saltz Mongeluzzi & Bendesky in Philadelphia.
Saltz Mongeluzzi attorneys David Langsam, David L. Kwass, and Pasquale Bianculli also worked on the case.
Mongeluzzi said he believed a jury would likely award even more than $17 million at trial but that Michele Nowak told him she wanted to settle so that she could start spending time with her children now, rather than endure a lengthy trial and appeals process.
“It is those times in your career when you know what’s best for your client,” Mongeluzzi said. “And her being with those kids now, not two-and-a-half, three years after appeals, is what’s best.”
Veolia was represented by Robert G. Devine of White and Williams in Philadelphia.
A spokesperson for Veolia forwarded a statement from the company calling Adam Nowak’s death “a terrible tragedy.”
“We hope this settlement is a step forward in the ongoing healing process for Mr. Nowak’s family,” the statement said. “Veolia’s safety culture and our ongoing commitment to safety are best reflected by our industry-leading safety record. However, we remain committed to continually improving. Through ongoing training and employee commitment, we remain focused on eliminating any safety incidents in the workplace.”
Permadur was represented by Francis J. Deasey of Deasey, Mahoney, Valentini & North, and Jay B. Harris of Fineman Krekstein & Harris in Philadelphia.
Deasey said his client believed it had not been negligent but agreed to settle because it was concerned a jury would attribute at least a portion of the negligence to Permadur.
Counsel for Kenny, David S. Cohen of Mintzer Sarowitz Zeris Ledva & Meyers in Philadelphia, declined to comment on the case.
Read more: http://www.thelegalintelligencer.com/id=1202642508272/%2417-Mil.-Settlement-in-Case-Of-Man-Killed-by-Crane-Hook#ixzz2t7RPNft8