A case involving a roofer who was paralyzed after falling about 40 feet has culminated in an $8.5 million settlement.
More than half of that amount is to be paid by the insurer of the victim’s employer, whose subcontract with the defendant general contractor included an indemnity provision and required that it add the contractor to its insurance policy.
In Schiazza v. R.W. Thomas Design Builders Inc. , according to defendant R.W. Thomas Design Builders Inc.’s settlement conference memorandum, plaintiff Joseph Schiazza was an employee of subcontractor Belcher Roofing, which R.W. Thomas had hired as the roofer of a building being constructed in Philadelphia.
The defense memorandum said a witness standing on the ground testified that he saw Schiazza walk backward off of the roof while unrolling some material.
The plaintiff’s settlement conference memorandum said Schiazza suffered paraplegia and fractured his pelvis, ribs and arm.
According to the defense memorandum, the roofers were not using fall protection – a line of flags that warns workers that they are close to the edge – in the area where Schiazza fell.
The plaintiff’s memorandum said fall protection is required by federal law under Occupational Safety and Health Administration, or OSHA, standards.
The plaintiff’s memorandum includes excerpts from the depositions of R.W. Thomas President William Waskey, Vice President Robert Waskey and Anthony Habib, who was filling in for Robert Waskey as superintendent the day of Schiazza’s fall.
In those excerpts, both Habib and Robert Waskey say they were unaware at the time of the incident that fall protection is required by OSHA standards, though both acknowledge that they had a duty to comply with and enforce OSHA regulations.
In its memorandum, the defense said R.W. Thomas had delegated all roofing safety responsibilities to Belcher, which had employer’s immunity in this case, and added that Belcher has since been issued an OSHA safety violation for not having fall protection when Schiazza fell.
The defense argued further in its memorandum that it was also entitled to employer’s immunity under state law because it was a statutory employer of Schiazza.
At settlement, according to Schiazza’s attorney, Robert J. Mongeluzzi of Saltz Mongeluzzi Barrett & Bendesky in Philadelphia, R.W. Thomas offered its full policy coverage of $4 million and Belcher’s insurance company offered its $1 million primary policy. The plaintiff’s attorneys were then able to negotiate with Belcher’s insurance company for $3.5 million of its $5 million excess policy coverage.
According to Mongeluzzi, the settlement took about two weeks to negotiate.
Mongeluzzi called the case “very unusual,” because the plaintiff was able to collect the majority of the insurance coverage of a party it didn’t technically have a claim against.
He said he thought the defense was persuaded to settle before the November trial date by the settlement video his firm put together, which featured clips from videotaped depositions of the parties in the case.
According to Mongeluzzi, his firm has videotaped almost every deposition it’s taken over the past five years and has made the settlement video a staple in all of its cases.
“When you are negotiating or in mediation, the person you’re talking to isn’t really the decision maker,” he said. “The decision maker is the vice president of claims sitting in an office in New York or Boston or Chicago. You never talk to them, you never see them, but if you put together a settlement video – and the one we did was devastating – that person calling the shots has to see it. It is truly your only chance and opportunity to persuade the person calling the shots on what the case is worth.”
Saltz Mongeluzzi attorneys Larry Bendesky and V. Paul Bucci II were co-counsel for the plaintiff along with Daniel A. Schwarz of Schwarz & Schwarz in Philadelphia.
“I think we do a very good job of taking the important parts of the depositions and putting them on the settlement video,” Bendesky said. “You have a 20- to 25-minute opportunity to show what you’re going to take to trial.”
R.W. Thomas’ attorney William Coleman, of McCormick & Priore in Philadelphia, could not be reached at press time.