In a settlement reached this week, a 37-year old man who suffered multiple third-degree burns and other injuries as a result of a fire that erupted at a construction site has secured a total of $2.3 million from three defendants.
According to Jerry McNeil’s attorneys, Larry Bendesky and Robert Mongeluzzi of Saltz Mongeluzzi & Bendesky, none of the defendants in McNeil v. Hankin Management Co. was willing to take responsibility for a condition that existed at the construction site and that ultimately caused their client’s injuries.
Mongeluzzi credited Bendesky with the outcome of the case, stating that during discovery, Bendesky not only uncovered what happened and advanced the plaintiff’s theories of liability, but also successfully attacked the defendants’ factual and legal defenses.
The two attorneys also pointed to a successful mediation, conducted by Ronald Sherr for ADR Options as a facilitator of the settlement. Bendesky said he thought that after discovery, the parties all had a good idea of the facts and where they stood, which led to the mediation.
According to the plaintiff’s mediation memorandum, he was doing demolition work in Building 108 of the Arsenal Building Center, in Philadelphia, in May 2000 when the heat from his welding torch ignited liquid and oil in the structure he was dismantling, causing a flash fire.
The defendants named in the document include Mark Hankin and Hankin Management Co., identified as the equitable owners of the building: Thompson Environmental Corp., a company allegedly contacted by Hankin to perform demolition work in the building: Nobel Learning Communities, identified as the lessee of the building, and Penn Construction, a general contracting company allegedly hired by Nobel to renovate the building for use as a charter school.
Bendesky said Thompson Environmental and Penn Construction each settled for $1.1 million, with Nobel Learning agreeing to pay $100,000. The attorney said Hankin and his company have not settled the case.
Hankin is insured by the Pennsylvania Property & Casualty Insurance Guaranty Association, Bendesky explained, and the insurer has claimed that a workers’ compensation lien of more than $300,000 exceeds the amount of coverage available. Bendesky said his client would pursue additional monies from Hankin and his company either through settlement or by going to trial.
McNeil’s mediation memorandum states that he was employed by Geppert Brothers, a subcontractor of Penn Construction, and working on a chilled refrigeration unit known as a chiller when he was injured.
The chiller, the document indicates, contained a refrigerant, lubrication oil, and Preon, a liquid used to transfer heat. According to the memorandum, the plaintiff’s fire and explosion analyst determined that the cause of the explosion and resulting fire was ignition of vapor entitled by the lubrication oil that was present in the chiller’s pipes
McNeil alleged in the document that “prior to the accident, defendants Hankin. Nobel [Learning], Penn [Construction] and [Thompson Environmental] were all aware that there were chillers in the basement that needed to be removed. . . . None of them ever considered if there were any hazardous materials inside the chillers. Everyone believed that this was someone else’s responsibility.”
The plaintiff further claimed that the defendants all knew that his employer would use torches to do demolition work and that torches might be used on the chiller.
Despite this knowledge, none of the defendants removed the hazardous oil and Preon for the chiller.” McNeil asserted in the memorandum. “As a result, when (the plaintiff) began dismantling the chiller with his torch he was devastatingly injured when the heat from his welding torch ignited the Preon and oil that was in the chiller, causing a flash fire.”
As to Hankin and his management company, the plaintiff claimed in his memorandum that Hankin controlled the premises in May 2000. A Hankin employee, the document states, testified at his deposition that he – the employee – was on-site 10 to 20 hours per week from the time the renovation project began.
The plaintiff’s liability expert opined that Hankin was in possession and control of Building 108 in May 2000 and that he retained and exercised shared control with Nobel Learning and Penn Construction over the work and workplace safety, the memorandum states “Hankin failed to protect McNeil and was therefore responsible for the severe burn injuries he suffered” the document alleges.
The mediation memorandum also alleges that a Thompson Environmental project manager testified in deposition that his company was responsible for safely furnishing the labor and material to complete demolition and removal of certain materials, including the chiller.
“Most importantly,” the document states, “[the project manager] testified that someone from (Thompson Environmental) looked at the chiller in the basement to see if there was asbestos on it. Yet no one took the time to check this same chiller for flammable liquids even though (Thompson Environmental) knew that the chiller had to be removed as part of the demolition work and that a torch might be used to do this work.”
The plaintiff claimed in the memorandum that in a contract with Thompson Environmental, his employer had specifically excluded removal of hazardous materials as one of Geppert’s duties. McNeil further alleges several OSHA violations by Thompson Environmental.
As to Nobel Learning, the plaintiff alleged in his memorandum that the company hired Penn Construction as the general contractor for the renovation. The document states that a Nobel Learning executive testified at her deposition that her company was ultimately responsible for the work that Penn Construction performed.
Additionally, McNeil claimed in the document that his liability expert determined that “Nobel had a responsibility to ensure that Penn [Construction], (Thompson Environmental) and Geppert complied with OSHA on the job site.”
Finally, with regard to Penn Construction, the plaintiff said in his memorandum that the company’s president testified at deposition that a general contractor is responsible for maintaining safety on projects.
McNeil again alleged OSHA violations and asserted in the memorandum that Penn Construction was required to ensure his safety.
“As the general contractor, Penn (Construction) had an obligation to inspect and determine if flammable materials existed.” The document states “Penn failed to live up to this obligation.”
According to the mediation memorandum, McNeil suffered third-degree burns over multiple areas of his body, including his face, and underwent several skin grafts. The document states that he exhibits scarring, has asthma that was not present before the accident, and is self-conscious in public.
McNeil’s vocational expert opined that he could only perform sedentary work or work that requires light exertion levels, the memorandum states. In addition, due to sun and temperature sensitivity that resulted from his injuries, the plaintiff claimed, he would have to work indoors.
The memorandum indicates that the plaintiff’s economist estimated future lost earnings at $520,000 to $695,000. The document states that loss of value and household services is $17,500 to $39,000.
Attorneys for the defendants are as follows: William Cillngin of Naulty Scaricamazza & McDevitt for Hankin and Hankin Management; Thomas Gallagher of Cozen O’Connor for Thompson Environmental; Andrew Flypovych of McKissock & Hoffman for Nobel Learning; and Elizabeth Horneff of Margolis Edel-stein for Penn Construction.
The defendants’ attorneys could not be reached for comment prior to press time.