Court affirms $12.3M award in construction towing accidentPosted On: Jul. 18, 2019 11:37 AM CST
A Houston construction firm whose insurer denied a workers compensation claim following an accident cause by a foreman who failed to properly strap his toolbox to his truck before driving to a job site must pay a jury award of $12.3 million to the family of a worker who was killed, a divided appeals court in Texas ruled Wednesday.
Two constructions workers, a father and son, were traveling at 65 miles per hour in their personal pickup truck to a job site in Austin, Texas, directly behind their foreman, who was towing a 400-pound wooden toolbox full of shovels and other equipment in a trailer. The toolbox dislodged and the two men stopped to retrieve it. In the middle lane, the workers were struck by a third vehicle, leaving the father injured and the son dead, according to documents in David Mora, Texas Sterling Construction Co. a/k/a Texas Crushed Concrete, and Sterling Construction Co., Inc. a/k/a Sterling Delaware Holding Co., Inc. v. Martin Valdivia, Sr. and Maria Cervantes Valdivia, both Individually and as Sole Heirs of the Estate of Martin Valdivia, Jr., deceased, filed in the Court of Appeals of Texas, Fourth District, in San Antonio, Texas.
Texas Sterling Construction Co.’s workers compensation insurer denied claims for workers compensation because the (workers) were “traveling to and from work,” a noncompensable claim under Texas comp law, according to documents. The company did not appeal the insurer’s determination and several supervisors stated in court testimony that they agreed; that the men were not in the course and scope of their employment at the time of the accident, according to documents.
The family of the deceased, including the injured father, later filed a personal-injury suit alleging negligence and gross negligence on the part of the construction firm, its affiliates and the foreman.
Following trial, a jury found the defendants grossly negligent based on the actions of the foreman, among others, and for failing to have protocol for towing tools, among other allegations. The jury awarded the family $9.5 million in actual damages and $2.8 million in exemplary damages, according to documents.
On appeal, the company contended the evidence is “legally and factually insufficient” to support the jury's findings that the men “were not in the course and scope of their employment at the time of the accident” and that the case did not meet the bar for gross negligence, among other claims, according to documents.
Pegging its findings on the lack of safety protocols by the company’s corporate safety director, the appeals court affirmed: “We therefore conclude the record contains clear and convincing evidence to support the jury's firm conviction that the harm… resulted from the gross negligence attributable to Texas Sterling based on (the safety director’s) failure to implement the necessary protocols and training to ensure proper cargo securement.”
One of the three ruling judges dissented, writing that “based on a review of the entire record… I would hold there is insufficient evidence to support a finding that (the safety officer) had ‘actual, subjective awareness of the risk involved, but nevertheless proceeded in conscious indifference to the rights, safety, or welfare of others.’”
The dissenting judge concluded that there is a lack of evidence in regards to negligence: “While it is clear (the safety director) knew towing unsecured loads is extremely dangerous and that Sterling did not have a written policy requiring employees to secure loads before towing, I would hold the subjective awareness element of the gross negligence test is not satisfied unless there is some evidence supporting a firm belief or conviction that (the safety director) knew Sterling employees… actually towing unsecured loads and consciously disregarded that knowledge.”
The company and attorneys involved could not immediately be reached for comment.