A PECO Energy employee who sustained several injuries to his pelvis and urethra three years ago when a co-worker ran him over with a backhoe loader was awarded $4.5 million Tuesday by an arbitrator.
In Johnson v. Wenner Ford, Joseph Johnson and his wife, Annemarie, sued the distributor of the backhoe, Wenner Ford Tractor Rentals, and the manufacturer, New Holland North America. The latter, original defendant was released from the case.
Johnson’s attorneys, Robert Mongeluzzi and David Kwass of Saltz Mongeluzzi Barrett & Bendesky, claimed in court papers that Wenner Ford was liable because the automatic backup alarm in the backhoe was turned off at the time. Mongeluzzi said the alarm should not have an on/off switch and, if it does, it should default automatically to “on.”
The Johnsons sought damages for past medical bills, wage loss, pain and suffering, loss of life’s pleasures and loss of consortium.
The case was shifted to binding arbitration and decided by neutral arbitrator Joseph Pinto of White & Williams, plaintiff’s arbitrator Steve Wigrizer of Wapner Newman & Wigrizer and defendant’s arbitrator Bruce Wickersham of Lavin Coleman O’Neil Ricci Finarelli & Gray.
Wenner Ford was represented by Joe DeMarco of March Hurwitz DeMarco & Mitchell of Media, who could not be reached for comment yesterday afternoon.
As part of a high-low agreement, the most the plaintiff could have received was $4.5 million and the least $1.5 million. The arbitrator awarded $4 million to Joseph Johnson and $1 million to Annemarie Johnson. Because of the high-low agreement, the Johnsons received $4.5 million.
On March 4, 1999, Johnson was working on a PECO construction crew installing a new gas service for a residential customer in Abington. In order to install the service, the crew had to run a line underground from the house out to a main in the street on Susquehanna Road. Johnson was measuring the amount of plastic pipe it would take to run underground to the house, court papers state.
According to a memo prepared by Mongeluzzi and Kwass, Johnson heard emergency vehicle sirens and looked to his left and right without finding the source of the sound. As he turned back to face the house, the backhoe whizzed by his head and caused him to fall on his back. The backhoe then ran up his left leg before two co-workers signaled to the operator to move off Johnson’s leg and hip.
Johnson was rushed to Abington Memorial Hospital, where he remained until being discharged eight days later. He suffered fractures to the right hip socket, coccyx and sacrum, a displaced pubic bone, a severed urethra, a torn prostate, urinary incontinence and impotence.
Johnson has undergone extensive rehabilitation and numerous surgeries on the pubic bone, sacrum, urethra and pelvis. Doctors informed him that he would not be able to resume his duties as a PECO gas mechanic and that he had suffered permanent disruption in both urinary and sexual function.
According to his lawyers, Johnson suffers from constant pain in his back and right knee, numbness in his left leg and groin. The Johnsons have three children, and Mongeluzzi said the couple wanted to have more but are now unable to do so. Johnson earned $55,000 from PECO in 1998.
Mongeluzzi and Kwass argued that Wenner Ford violated OSHA regulations in two respects. Wenner Ford converted the backup alarm to allow it to be disabled by the backhoe operator. OSHA requires that all motor vehicles have a reverse signal alarm distinguishable from the surrounding noise level. Johnson’s attorneys also argued that Wenner Ford failed to provide appropriate training for PECO backhoe operators with concern to the alarm. And in its contract with PECO, Wenner Ford has an obligation to provide such training, according to court papers.
While defense counsel argued that Wenner Ford officials were only following the instructions of PECO by disabling the automatic alarm, Mongeluzzi said that is not a defense in a strict liability case such as this one.
“Hazards come with that job all the time, so the alarm should be on all the time,” Mongeluzzi said. “And just because PECO asked them to disable the automatic function, it doesn’t make it right.”
Kwass, who was largely responsible for discovery, said the most challenging aspect of the case was working with the 17 expert witnesses to get a feel for how the accident happened and what injuries were sustained.
Saltz Mongeluzzi picked up another victory in a binding arbitration yesterday in Wermuth v. Chase Oil. The case was arbitrated by Tom Rutter of ADR Options. The plaintiffs received $750,000, which was again the high cap in a high-low agreement.
The case revolved around injuries sustained during a car accident on June 9, 1999. Patricia Wermuth was driving her mother-in-law, Delores, home from a doctor’s appointment at Fox Chase Cancer in Northeast Philadelphia when their car was rear-ended by a car driven by Charles Krieker of Chase Oil Parts. Liability in the case is not disputed.
Delores Wermuth died eight months later of colon cancer but nevertheless suffered neck, back and shoulder injuries. According to Mongeluzzi, her doctors said it was unfortunate that she had to spend her final days in considerable pain due to the accident.
Patricia Wermuth, a therapist at Children’s Hospital of Philadelphia, is permanently disabled after sustaining injuries to her cervical spine and left upper extremities. She has undergone several spinal surgeries. Patricia Wermuth sought compensation for past and future loss of earning capacity, medical expenses, pain and suffering, and embarrassment and humiliation, and loss of life’s pleasures.
The Wermuths were represented by Mongeluzzi and associate Jeffrey Laffey and Chase Oil/Krieker were represented by Glenn Ricketti of Margolis Edelstein. Ricketti could not be reached yesterday.
Mongeluzzi said Delores and Patricia Wermuth were awarded $750,000, while Patricia Wermuth’s husband received $50,000 for loss of consortium. But because of the high-low agreement, they received a total of $750,000. The low end of the agreement was $350,000.