A Philadelphia lawyer this week secured a $3.8 million settlement for a construction worker who fell more than two stories during the building of the CoreStates Center arena.
The resolution came Monday after a jury had been selected in Judge Howland Abramson’s Common Pleas Courtroom,” said Robert J. Mongeluzzi of Daniels Saltz Mongeluzzi & Barrett. Co-counsel in the case was Larry Bendesky of the Daniels Saltz firm.
Ironworker David Leahy, 36, sustained a crushed upper tibia and required a knee replacement. He can no longer work in construction, where he was earning in excess of $60,000 per year.
The defendants in the case were the general contractor, L.F. Driscoll, and two subcontractors: Helmark Steel, which had the job of fabricating and erecting the structural steel and decking of the South Philadelphia sports arena; and its sister corporation, Falcon Steel, which was hired to erect the structure.
Leahy was working for a joint venture of Falcon and a New York firm called Caribe Steel. As a non-employee of the subcontractors and general contractor, he could sue them for negligence, Mongeluzzi explained and did not have to settle for workers’ compensation benefits.
Leahy fell, plaintiff’s lawyers alleged because the subcontractors ignored a contract requirement that netting and other safety restraints be set up to prevent falls of more than 10 feet. The contract term was more stringent than the Occupational Safety and Health Administration, which requires fall protection for ironworkers facing a 25-foot drop, according to Mongeluzzi.
Mongeluzzi said that the theme of the case would have been that the subcontractors “broke their promise” to provide fall protection.
Leahy’s job on March 30, 1995, was to climb out onto steel beams and measure where steel decking should be placed. Ironically, OSHA inspectors showed up on the site six days before to inspect fall protection measures, Mongeluzzi said. At that time, promises were made by the contractor and subcontractors to city officials and OSHA personnel that fall protection would be installed throughout the job site.
But it was not done as promised, Mongeluzzi said.
A concrete apron was in place around some of the levels of the arena, and Leahy was laying out the decking for the eighth floor. He walked out 40 feet on a beam, then turned and walked on a second 40-foot beam perpendicular to the first one. Finally, he turned back on a third 40-foot beam back toward the concrete apron. Unfortunately, there was a pile of debris preventing him from getting back on the apron, Mongeluzzi said.
The plaintiff had two choices: walk back 120 feet to where he started, even though there was no fall protection; or shinny down a pole to the sixth floor.
“If there were safety nets, he would have walked back because it was safer,” Mongeluzzi said.
Leahy lost his balance when he got to within five feet of the sixth floor, Mongeluzzi said, and fell through a gap in the sixth-floor apron, falling all the way down to the fourth floor.
It took four hours of negotiation on Monday to arrive at the $3.8 million figure, Mongeluzzi said.
Judge Bernard Goodheart led the Day Forward trial team in the case, and had recommended a $4 million settlement last Thursday, Mongeluzzi said.
Two months ago, the defendants tendered $1 million in primary coverage, but plaintiffs’ counsel was insisting on $6.5 million.
“We tried to go the mediation route, but that did not work,” Mongeluzzi said. “There were no negotiations between [the say of the $1 million offer] and last Thursday when Judge Goodheart brought us in.”
Mongeluzzi said he made it clear that he would refuse to negotiate once he delivered an opening statement.
As for damages, Leahy may require as many as five knee replacement surgeries in his lifetime, yet if the tibia does not hold up, he may have to wind up with a steel rod holding the leg together, according to the life care expert retained by Mongeluzzi and Bendesky, a Montgomery County registered nurse name Mona Yudkoff. Bendesky was chiefly responsible for developing the evidence on Leahy’s damages, Mongeluzzi said.
All of the parties had the same insurer for primary and excess coverage, Mongeluzzi said, and the settlement was global.
General contractor Driscoll paid Helmark $14 million for the steel work, Mongeluzzi said.
“Helmark wanted Driscoll to keep its promise,” Mongeluzzi said”. “But [the subcontractors] did not keep their promise [to provide for worker safety].”
Driscoll was represented by John J. Hatzell Jr. of Frayne & Hatzell, and Helmark and Falcon, the subcontractors, were represented -by John F. Ledwith of Marshall Dennehey Warner Coleman & Goggin.
The owner of the CoreStates Center, Spectacor Inc., was let out of the case as a defendant since it had no direct involvement in fall protection measures on the site, Mongeluzzi said.