$7,900,000 – Construction Fall

When the pool of potential jurors filed into Philadelphia Common Pleas Judge Marlene F. Lachman’s courtroom on Friday morning, they were informed almost immediately that they were no longer needed.

The huddle of defense lawyers the jurors saw on one side of the room had just moments before finalized the terms of a nearly $7.9 million global settlement in a suit brought by Victor Tavares, a New Jersey carpenter who was left paralyzed and disfigured from a three-story fall while working on the construction of a retirement community in Delaware County.

Plaintiffs attorneys Ara R. Avrigian and Robert J. Mongeluzzi of Saltz Mongeluzzi & Bendesky said the settlement could swell to more than $8.1 million as a result of a contingency that calls for another $225,000 to be added if one of the settling defendants is successful in its suit against an insurer.

Avrigian said settlement talks were underway on Monday when the parties convened for a mediation conducted by Thomas Rutter of ADR Options.

Mongeluzzi said those talks greased the wheels for a second round of settlement talks conducted by Lachman that stretched into the evening on Thursday and led to a last-minute deal on Friday.

Under the terms of the settlement, Erickson Construction will pay $6 million; Mega Construction Corp. will pay $1.1 million; Construction Resources United will pay more than $712,000, and Dobek Contracting will pay $75,000.

In court papers, the plaintiffs lawyers had focused almost entirely on Erickson, arguing that it alone was responsible for the August 2006 accident caused by the malfunction of temporary guard railings designed to protect the open space where floor-to-ceiling windows would later be installed. The other defendants were added to the suit as a result of a complex array of indemnity claims.

Mongeluzzi said it is a common practice in construction of multi-story buildings to keep such large windows open to ease the ferrying of supplies and fixtures to the higher floors.

But the suit said the temporary rails installed by Erickson at the Maris Grove Retirement Community project in Concordville, Pa., violated federal regulations because they were on the outside of the building and therefore easily dislodged whenever a worker leaned on them.

Avrigian said one of the main difficulties in the suit was that Tavares had no memory of the accident and there were no eyewitnesses.

Further complicating matters, Mongeluzzi said, was that none of the evidence from the scene of the accident was preserved in photographs.

But the suit alleged that the plaintiffs lawyers had managed to reconstruct the accident and had mustered significant evidence pointing to the temporary guardrails as the only possible culprit.

Tavares, 46, a native of Portugal who lived in Brazil before becoming a citizen of the United States more than 25 years ago, was working for Dobek Contracting, a subcontractor hired to perform work on the building’s interior trim.

The accident left Tavares paralyzed from the lower back down and with disfigured legs that required 12 surgeries.

Erickson Construction was the general contractor on the project, which consisted of several multi-story residential buildings and a community center. Mega Construction was contracted by Erickson to oversee interior work and in turn, had subcontracted with Dobek.

On the morning of the accident, the suit alleged, Tavares was instructed to locate a delivery and went to the fourth floor, where he leaned out of the opening to scan for trucks. The last thing Tavares remembers before waking up in the hospital was putting his hand on the metal railing.

If the case had gone to trial, the plaintiffs lawyers would have set out to prove that the temporary guard rails were never properly installed because regulations from the federal Occupational Safety and Health Administration call for securing such rails on inside walls.

Placing such rails on the outside walls is “a hazardous, foolish and improper method” because the screws must face inward, the plaintiffs team wrote in a mediation memo.

Erickson’s negligence was “particularly egregious,” the plaintiffs lawyers argued because it was “on notice of this hazard,” and “did not follow the recommendations of their own safety consultant” by modifying the rails.

Attorney Robert G. Devine of White & Williams, one of the lead lawyers for Erickson, confirmed the settlement figure, but said that “liability was and remains disputed.”

Mega’s lawyer, Grant S. Palmer of Blank Rome, could not be reached for comment.

Dobek was represented by attorney Fred B. Buck of Rawle & Henderson, and Construction Resources United was represented by Andrew R. Benedict and Christine Benedum of Weber Gallagher Simpson Stapleton Fires & Newby.

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