Construction Accidents

Florida Court of Appeals Allows Construction Worker to Sue Fellow Subcontractor for Gross Negligence

Published on: March 7, 2013 | by Friedman, Rodman & Frank, P.A.

Florida’s First District Court of Appeals recently issued two opinions in one case, Villalta v. Cornn Intl., that assessed whether workers’ compensation statutory immunity applied to a contractor and subcontractor. A construction worker was finishing drywall when his ladder slipped into a cutout left by other subcontractors. He fell through the cutout and died from his injuries, and the personal representative of his estate brought suit against the contractor and all subcontractors tied to the project.

A Florida construction contractor hired two subcontractors, one for drywall installation, and one for HVAC installation. The drywall subcontractor hired their own subcontractor to do the finishing. The sub-subcontractor employed the deceased plaintiff. The cutout that caused the plaintiff to fall was made by the HVAC subcontractors, who did not warn the other subcontractors of its presence or use the proper guidelines to ensure safety of the area. Workers’ compensation was available to the deceased’s workers family, but they elected to also pursue a personal injury action against all liable parties.

Florida’s workers’ compensation is a state-mandated insurance fund designed to provide injured workers or their families with the compensation they need when an employee is injured or killed at work. Because compensation is ensured, Florida also grants immunity to employers unless they committed an intentional tort, and to fellow subcontractors unless there was gross negligence. When the injury or death occurs on a construction site, the relationships are assessed to determine which statutory immunity applies, if at all.

The Court decided that the contractor was immune from a personal injury suit because they were in a vertical relationship, defined in Mena v. J.I.L. Construction Group, Latite Roofing & Sheet Metal Co. v. Barker, and also Dempsey v. G & E 3Construction Co. The only exception to immunity is when an intentional tort (when someone has been hurt purposefully) has occurred, and the Court ruled that it didn’t exist in this case. The HVAC subcontractor is also granted immunity, however the exception is merely gross negligence (willful and wanton misconduct) instead of an intentional tort.

After litigation began, the HVAC subcontractor moved for summary judgment, arguing that they are entitled to immunity. The trial court initially agreed, but the Florida Court of Appeals looked at the facts and ruled that it was for a jury to decide whether or not the events that led to the employee’s death were gross negligence or standard negligence. The deceased employee and his representative now get to move forward in the personal injury suit against the HVAC contractor.

Injured Florida Worker Denied Opportunity to Hold Negligent Employer Liable

Published on: February 7, 2013 | by Friedman, Rodman & Frank, P.A.

Florida’s Fourth District Court of Appeals recently echoed a lower court’s ruling that prevented an injured Florida man from holding his employer directly liable for his construction accident injuries. Florida grants immunity to employers since employees are covered under mandatory workers’ compensation insurance. Workers cannot pursue personal injury claims against the employer unless they fall under the narrowly tailored exception. In this case, the court maintained that the worker did not show the employer knew of the danger from prior occurrences, that he himself was unaware of any dangers, and that the employer actively misled the worker of the project’s safety.

The worker was employed by a construction contractor who was installing a nine-ton wall on the day of the accident. Safe installation of that size of wall depends heavily on favorable weather conditions and cannot be performed if the wind speeds are too high. Prior to the accident, the installation had been delayed due to high winds over 20 mph. On the morning of the accident the winds were determined to be safe enough to proceed. Testimony from the general foreman and one of the crane operators differed from each other. The foreman testified that he radioed to the crew and informed them of 16-18 mph winds, but the crane operator recalled being informed the winds were 12-15 mph. The injured worker provided conflicting accounts, some indicating that he was concern with the windy condition, but didn’t know what it was and nonetheless relied on wind speed confirmation from the general foreman.

The Court looked to the last 13 years of case law and legislative action surrounding the immunity exception and pointed out that no employee has been able to show with virtual certainty that the employer committed an intentional tort. Since the Court had to view the case in a light most favorable to the employer, the employer only had to show that none of the elements of the immunity exception existed. The Court conceded that even if they accepted the worker’s version of the installation, the employer would only be grossly negligent and not liable for an intentional act.

Workers’ compensation benefits are determined by a calculation that factors in the worker’s impairment rating, the regular wage of the worker at the time of the accident, and the cost of medical care and related costs, among other things. Benefits are calculated with statutorily-created multipliers, and may be capped at 104 weeks. The amount of compensation can differ greatly depending on whether the worker is deemed temporarily disabled or permanently disabled.

A personal injury claim of the same or similar matter will likely calculate the same types of costs like medical care and lost wages. However, unlike worker’s compensation, the negligent party may also have to pay for pain and suffering or punitive damages, depending on the level of egregious behavior.

Evaluating Construction Accidents in South Florida After 2013 Crane Collapse

Published on: February 5, 2013 | by Friedman, Rodman & Frank, P.A.

At the beginning of this year, a crane collapsed in the Queens borough of New York City, injuring seven people. The crane greatly damaged the building project, but left the other completed part of the residential building complex intact. The crane belongs to New York Crane and Equipment Company, owned by Jimmy Lomma, who was recently acquitted for manslaughter following the deaths of two people caused by one of his cranes in 2008.

The crane operator and contractor were both recently cited for five violations in the collapse. The Buildings Department pointed to the operator’s attempt to lift more than double the acceptable load. The operator also couldn’t see what was being lifted and moved materials outside of the approved zone. This contrasts with the recent construction accident at South Florida’s, Miami Dade College, where the cause of the collapse is still unknown and under an investigation led by OSHA (Occupational Safety & Health Administration).

The college was forced to close their West campus to ensure the safety of the students after four workers were killed. Many things could have caused or contributed to the multi-level collapse of the garage floors. Investigators began their assessment with whether it was the construction procedures that were faulty, or if it was something defective in the design that led to the collapse. Other concern include whether an adequate system of checks and balances was used as the structure was built and whether the plans themselves were confusing, thus leading to defective construction.

Construction accidents are tragic, complex events resulting in either serious injury or death. As the South Florida investigation shows, it can take awhile to even figure out what occurred and why it occurred. A 2012 appellate case from the New York Court of Appeals (Admiral Ins. Co. v Joy Contrs., Inc., NY Slip Op 04670, 2012) assessed whether the insurance company of the ‘excess policy’ for additional insured under the comprehensive general liability policy was obligated to pay based on the contractual language of the policy that excluded residential buildings.

A tower crane had also collapsed and killed seven people, injured many more, and damaged several surrounding buildings on top of the one under construction. The Joy Construction Company was insured with standard comprehensive general liability coverage and had the excess policy through Admiral Insurance, which began to submit letters to Joy denying any obligation to indemnify for several reasons. One of Admiral’s claims before the appellate body was that they weren’t liable because the building was for residential use, and that type of building was excluded from coverage. They also focused on whether they were obligated to cover entities who were alleged to have misrepresented themselves or were structured as an LLC. Ultimately, the Court of Appeals thought the case should move forward as there were issues of material fact whether the building was a ‘mixed use’ unit, thus not exclusively residential and excluded from Admiral’s CGL coverage; and that the LLC status of the companies seeking indemnification didn’t bar coverage.