Tuesday, July 25, 2017

A Texas state appeals court in Houston overturned a $43.5 million jury verdict for Tyler Lee, a construction superintendent who lost one of his legs after a crane collapsed. Lee et al. v. Berkel & Co. Contractors Inc. et al.

A Texas state appeals court in Houston overturned a $43.5 million jury verdict for a construction superintendent who lost one of his legs after a crane collapsed.

The Fourteenth Court of Appeals ruled this week that Tyler Lee was not entitled to receive the $43.5 million awarded two years ago because the health care and income replacement benefits provided through no-fault Texas workers compensation insurance is the sole remedy for non-fatal workplace accidents.

The appeals court also determined that Lee's injuries were not intentional because the subcontractor controlling the crane had no idea where Lee was at the time of the accident.

Lee was working nearby when the crane collapsed, crushing his leg which had to be amputated from above the knee, according to court records. He sued the subcontractor for negligence, gross negligence and intentional injury. A jury awarded Lee $35 million in actual damages and $8.5 million in exemplary damages.

Lee worked for Skanska USA Building, the general contractor for the office building project. Skanska, in turn, hired Berkel & Company Contractors to drill the foundation piling of the new office space. Skanska provided workers compensation insurance for the entire project, including the subcontractors firms, according to court records.

Since the contractor firms were covered by Skanska's workers compensation insurance, the appeals court determined that Lee's only legal recourse was to obtain benefits under the Skanska policy.

The Houston law firm representing Lee could not be reached for immediate comment.

Texas law allows the families of workers killed in workplace accidents to sue for gross negligence but the appeals court determined that doesn't apply in Lee's case because he wasn't killed.

Texas law also allows injured workers to sue for intentional injuries. But the appeals court determined that while the contractor's superintendent was "reckless," the superintendent was not "substantially certain that Lee would be a particular victim," according to the opinion.

No evidence was presented that the contractor's superintendent even knew where Lee was when the crane operator was trying to free a drilling auger stuck in mortar, according to court records. Lee was behind a barricade, working with another subcontractor to make sure dirt was spread and compacted properly.

The appellate court found that 'intentional injury' requires an intent to injure a particular person or a small class of people, not just a general knowledge that an activity is dangerous, Houston lawyer Thomas C. Wright said in a written statement. He represents Berkel & Company Contractors.


Jury Awards Leg Amputee $44M Over Crane Accident

By Paul DeBenedetto Law360, Houston 

May 7, 2015 -- 

A construction superintendent whose leg was amputated after being crushed in a Texas crane accident, involving a Berkel & Co. Contractors Inc. operator on a Maxim Crane Works LP crane, won a roughly $44 million jury decision against the two companies on Wednesday afternoon. 

Tyler Lee, 31, was working on a Houston construction site when the crane collapsed, pinning the man, who was later rushed to a nearby hospital where doctors were forced to amputate his left leg above the knee, according to court documents.

Lee's attorney Kurt Arnold of Arnold & Itkin LLP said Thursday that he was happy about the decision and that the companies would be forced to own up to the accident.

“For over a year and half, the defendants avoided taking responsibility for their actions," Arnold said in a statement. "It’s rewarding to finally see them held accountable. Even after hearing the evidence at trial, Berkel maintained it did nothing wrong in closing arguments. The jury decided otherwise.”

On Sept. 30, 2013, Lee's was working at the site where Berkel was hired to drill auger cast pilings. The crane operator was working to complete deep foundation drilling when the auger became stuck, Arnold said.

The operator stopped the work, but a supervisor repeatedly insisted that the work continue, eventually leading to the crane collapse, according to the complaint.

Lee was standing behind a safety fence about 100 feet away when a large piece of the crane hit him and pinned him down. Another crane was brought in to lift the equipment, and Lee was hospitalized.

In the suit, the companies insisted that Lee's claims were barred under the exclusive remedy provision of the Texas Workers’ Compensation Act, and that punitive damages would violate the Eighth Amendment's excessive fines clause, as well as the 14th Amendment and the Texas Constitution, among other things.

During the trial, lawyers for Lee told the jury that Berkel repeatedly violated safety practices to complete the project quickly, and violated company policy to save "a few hundred dollars and a few days’ time," Arnold said. Those decisions, along with poor inspection, and the superintendent’s refusal to stop the job, led to the collapse, he said.

The jury found that Berkel and Maxim were both negligent, awarding Lee and his family damages for past and future medical expenses, loss of earning capacity, and past and future physical impairment, physical pain, and mental anguish. The jury also awarded $8.5 million in punitive damages for Berkel’s negligence.

The jury assigned 90 percent of responsibility to Berkel, and 10 percent to Maxim.

The companies did not immediately respond to a request for comment.

Lee is represented by Kurt B. Arnold and J. Kyle Findley of Arnold & Itkin LLP, Russell S. Post and Marcos Rosales of Beck Redden LLP, Chuck Lloyd Clay Jr. of Chuck Clay & Associates LLC, and Justin Gilbert of Gilbert & Furey.

Berkel is represented by Andrew McKinney IV of Litchfield Cavo LLP. Maxim is represented by Ann E. Knight of J. Diamond and Associates PLLC.

The case is Lee et al. v. Berkel & Co. Contractors Inc. et al., case number 75576-CV, in the 149th District Court of Brazoria County, Texas.