$4,600,000 – Construction Site Fall Results in $4.6 Mil. Accord

A construction worker who suffered a career-ending back injury in a 20-foot fall when the unsecured metal decking he was working on collapsed will be paid $4.6 million in a global settlement with a general contractor and two subcontractors.

Plaintiffs attorneys Robert J. Mongeluzzi and Andrew R. Duffy of Saltz Mongeluzzi & Bendesky said the settlement in Jason Weitzel’s case was reached after an 11-hour marathon mediation conducted by James Melinson of JAMS.

Under the terms of the settlement, All Steel Supply Inc. will pay $2.4 million; DBP Construction Management will pay $1.7 million, and Penntex Construction Co. will pay $500,000.

According to court papers, Weitzel was working for Carl M. Weber Steel Services Inc. in June 2008 on a Voorhees, N.J., construction project in which DBP served as general contractor.

In the fall, Weitzel suffered a “burst fracture” of a vertebra and now walks with a limp and battles constant, chronic pain.

In a mediation memo, plaintiffs lawyers said the accident “abruptly ended his career as a construction worker,” a fact that was especially difficult for Weitzel since he is a high-school dropout.

“All he knows is heavy, manual labor. It was his source of money, security, medical benefits, self-esteem, and self-worth. It was what he was good at,” the plaintiffs team wrote.

The plaintiffs memo said All Steel, a subcontractor, had been hired to install steel decking, but that the company “was so inexperienced in steel decking, they did not know what they were doing.”

The memo also said All Steel was “clueless” about worker safety regulations from the Occupational Safety & Health Administration that impose specific requirements for the erection of steel decking.

According to the memo, All Steel’s site supervisor testified that he was aware the company had to comply with OSHA regulations, but that “I was not aware of certain things that we needed to do.”

The memo said All Steel had effectively admitted liability by conceding that it failed to secure loose decking and allowed Weitzel’s crew to start their work before All Steel had completed the decking job.

“All Steel blatantly violated federal OSHA law because All Steel did not care enough about safety to take the time to learn federal OSHA law,” the plaintiffs team wrote in their memo.

The memo said DBP and Penntex shared responsibility for the accident.

As general contractor, the memo said, DBP had “a non-delegable duty under New Jersey law to ensure the safety of the construction project” but the company “did nothing to fulfill this serious responsibility.”

DBP’s “only defense,” the memo said, “is it contractually delegated this non-delegable duty to Penntex.”

But the memo said Penntex “also did nothing” to ensure the safety of the steel decking.

Joint and Several’s New Impact?
Penntex’s lawyer, John J. Delaney III of Delaney & O’Brien, said in an interview that the settlement is a harbinger of the changing dynamics in Pennsylvania law on joint and several liability.

Weitzel’s case was governed by New Jersey law, Delaney said, which mirrors the recent changes to Pennsylvania law with a modified joint and several liability doctrine that limits the exposure of any defendant whose responsibility is less than 60 percent.

Delaney said that under the previous Pennsylvania law, a defendant found to be just 1 percent responsible could nonetheless find itself on the hook for a substantial portion of a hefty judgment if the plaintiffs were unable to collect from the defendants deemed more responsible.

As a result, Delaney said, there was more pressure on lesser responsible defendants to contribute greater amounts to settlements. But under the new structure, he said, the pressure is eased because the plaintiff’s ability to collect is capped by the percentage of responsibility.

In response to Delaney’s remarks, plaintiffs attorney Andrew Duffy said that he and Mongeluzzi and their client were “extremely happy” with the total settlement amount and that the plaintiffs team “didn’t discount this case at all” because of the New Jersey joint and several liability law.

Duffy – who is not related to reporter Shannon Duffy – said he was not aware that Delaney considered the New Jersey rule to be a factor, and that the only factor that was important to the plaintiffs team was the aggregate settlement which, he said, was in the “upper tier” for cases such as Weitzel’s.

All Steel’s lawyer, Philip D. Priore of McCormick & Priore, and DBP’s lawyer, Joseph F. Van Horn Jr. of Bodell Bove Grace & Van Horn, both declined to be interviewed about the settlement.

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