Articles Posted in workplace accidents

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In 2008, a new high school was being built in Reading, Pennsylvania. Perrotto was the general contractor on the project and Reigel was hired to procure and install the structural steel for the building. Ralph Ferraro, an employee of Riegel was working with two other men in a five story, stairway tower. He was standing on a lift platform installing steel and when he attempted to secure a 300 pound piece, he lost his balance and fell 30 feet. He filed suit for his injuries against Perrotto and Turner, the lift company. Perrotto filed and was granted a request to bring Riegel into the suit. Perrotto claimed that in accordance with their subcontractor agreement, Riegel is required to defend, indemnify and hold harmless, Perrotto.

Reigel agreed that under the agreement they would have to take the fall if they or their employees were negligent, but argued that they were not required to indemnify Perrotto if Perrotto was negligent. Perrotto settled the matter with Ralph and is now seeking for Reigel to indemnify, or cover the settlement costs.

In order for a business, which has settled a case for personal injuries to recover the costs of the settlement from someone they have an indemnity contract with, they must demonstrate that the underlying claim against them was valid, that settlement was reasonable and that any attorneys fees were reasonable. Otherwise they would just settle the matter regardless of fault and seek payment from the other party.

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Three months ago, federal Judge Judith Fitzgerald requested post-trial briefs for a Delaware asbestos case. Pending her ruling, the case appears to still be mired in the mud of decision making.

Fitzgerald spends her time as a United States bankruptcy judge in Pennsylvania’s Western District and Delaware. Back in the second week of January she held an estimation trial that lasted a week. The trial was supposed to reduce the gap between the amount that the case’s debtors (Bondex International, RPM International and Specialty Products Holding Corp.) believe they owe any future asbestos victims who file a claim and the amount future claimants assert that the bankrupt companies should pay them.

Prior to filing for bankruptcy, the debtors were asbestos defendants in the tort system. Their bankruptcy filing stops civil litigation and forces them to establish a trust fund to compensate future claimants. From January 7 to January 11, attorneys for the debtors and those representing the Official Committee of Asbestos Personal Injury Claimants pleaded their case to Fitzgerald in her 52nd floor courtroom in a Pittsburgh commercial tower. However, the case seems to be in limbo as the concerned parties await Fitzgerald’s ruling, which is expected before she retires on May 31.

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If you were recently involved in a Pennsylvania auto accident, and you’ve been struggling to collect money from an insurance company because the driver who hit you (or otherwise caused the accident) lacks insurance coverage (entirely or in part), you might find a recent decision in the case of Bole v. Erie Insurance Exchange enlightening.

The case is actually pretty heartbreaking.

It involves a man named Ronald Bole, a volunteer firefighter, who rushed to the scene of a car crash during a hurricane to help a driver who had been trapped by a collapsed bridge. While engaged in the rescue, Bole suffered injuries from the bridge, but he nevertheless managed to save the passenger, Devin Finazzo. Court reports suggests that, had Bole not intervened, Finazzo likely have been killed during the incident.

Finazzo lacked insurance. So Bole placed a UIM (underinsured motorist) claim to get compensated for his injuries. Even though the bridge collapse – not an auto accident, per se – was the proximate cause of his injuries, Bole said that he should still be able to collect UIM benefits because of something called the rescue doctrine.

Unfortunately for Bole, the court found that it was not foreseeable that the bridge would collapse – “the rescue doctrine will not make an original tortfeasor liable for injuries attributable to a superseding cause … a superseding cause must be an act which is so extraordinary as to not have been reasonably foreseeable.”

Bole’s ultimately fruitless legal path was fraught and full of ups and down.

• First, he faced an arbitration panel, which reached a divided decision about the applicability of the rescue doctrine to his situation. The panel decided that he was not entitled to UIM benefits because he hadn’t been driving.

• A trial court then examined the arbitration panel’s decision and affirmed.

• Bole then appealed to Pennsylvania Superior Court, which reversed the trial court’s decision – another divided opinion – and remanded the case back to the arbitration panel.

• The panel reached another split decision – 2 to 1 – “finding that although appellant could reasonably be found to have been engaged in a rescue, the bridge collapsed because of intervening circumstances not attributable to Finazzo,”

• Then both the trial court and Superior Court affirmed, although one judge, Judge Donohue, dissented from the Superior Court’s majority opinion.

A Tangled Mess and Disappointing Outcome
What are lessons that you can learn from Bole’s ordeal, if you or someone you care about has been struggling to collect UM or UIM benefits after a Philadelphia injury accident.

1. Don’t assume that your path to victory will be easy or simple.

Even if the facts are on your side and you can compile a strong case, the law is full of nuances and wrinkles.

2. Your recovery process can be quite long and can be filled with ups and downs.

It is important to try to keep emotionally even keeled during the process: don’t get too excited by good news or too devastated by bad news.

3. The right Pennsylvania personal injury lawyer can make the world a difference.
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As a Philadelphia personal injury lawyer, I was interested to see a recent state Supreme Court ruling removing a barrier between public workers and adequate compensation for injuries they suffered in car crashes that were no fault of their own. In Heller v. Pennsylvania League of Cities and Municipalities et al., the state high court ruled that Sugarcreek Borough police officer Frank Heller should be permitted to claim underinsured motorist coverage for an accident he suffered while at work, even though he was also collecting workers’ compensation insurance. Heller’s department was insured by the Pennsylvania League of Cities and Municipalities, which had an express exclusion for any employee eligible to claim workers’ compensation. In this decision, the state Supreme Court found that this violates public policy and cannot be enforced.

Heller suffered injuries that his complaint described as “severe and disabling” on Halloween of 2002. He successfully claimed workers’ compensation and recovered the limit of the at-fault driver’s policy, but this was just $25,000. This was inadequate for his injuries, so he notified the borough’s auto insurer of a potential UIM claim. The insurer denied it because of the policy exclusion against UIM coverage for workers eligible for workers’ compensation, so Heller sued for a declaratory judgment saying this was against public policy. He received it in 2007; in fact, the court noted that this exclusion was expressly illegal until 1993. The Commonwealth Court reversed the decision, finding that in the absence of a specific law or caselaw, the conflicting policy considerations should favor the insurer. One judge dissented, saying the exclusion prevents workers’ compensation insurers from subrogating UIM benefits and injured workers from collecting fully.

The Pennsylvania Supreme Court agreed to review only the issue of whether the exclusion violates public policy — and eventually found that it does. On appeal, Heller (supported by amicus Pennsylvania Association for Justice) argued that the borough’s UIM coverage is “illusory” because nearly all borough employees are eligible for workers’ compensation. The court started its analysis by noting that Pennsylvania’s auto insurance laws are aimed at cost containment. However, it noted, cost containment is not enough to allow insurers to deny coverage for which the insured has contracted and paid. In this case, the borough voluntarily paid for UIM coverage, which it could have opted not to buy. However, the high court said, the coverage is unlikely to ever attach because of the exclusion that covers basically all borough employees. Thus, it agreed that the coverage is illusory and that the insurer gets a windfall by declining to provide it. To allow this would contravene the intention of Pennsylvania insurance law, it said. Thus, it found the exclusion contrary to public policy and reversed the lower court.

As a Philadelphia accident lawyer, I applaud this ruling. In essence, the high court said that insurers may not charge premiums for insurance and refuse to provide it, even when they write that refusal directly into their policies. The presence of an express written exclusion might normally make the court sympathetic to the insurer — but in this case, the fact that every borough employee can get workers’ compensation benefits means the exclusion functions to negate the purpose of the insurance. By doing this, the insurer was charging for something it knew it would never have to provide, and that’s what the court found was against public policy. As a Philadelphia injury lawyer, I doubt that consumers or courts would put up with this kind of fraud in another context, and I applaud the court for not allowing it in insurance, where denying benefits is very much the path to profit.
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As a Philadelphia injury lawyer, I was interested to see a Third Circuit decision that could change how federal courts in Pennsylvania determine jurisdiction in personal injury cases involving more than one state. In Washington v. Hovensa LLC, Gloria Washington sued Hovensa and Triangle Construction and Maintenance, Inc., after Triangle employees working on Hovensa property in the Virgin Islands injured her. Washington owned a home in Texas but was back in the islands for work. The district court dismissed her suit for lack of subject-matter jurisdiction, saying she was properly a Virgin Islands resident, not a Texas resident. The Third reversed that and remanded it, saying the district court did not give enough weight to her intent to return to Texas.

Washington worked for Sabine Storage Operations, a Texas company that sent her to the islands to work as a pipe inspector for an indefinite period of time. She had been born in St. Croix and had family in the islands, who she saw regularly while she was there. She owned a home in Baytown, Texas and had rented an apartment in the islands. She had not returned to Texas for several months before she drove onto Hovensa’s property, where she was assigned to work at a Hovensa refinery. She drove her rental car past a site where Triangle employees were conducting sandblasts that she said were improperly supervised and used faulty equipment. She sued Triangle and Hovensa in Virgin Islands federal court, based on diversity of citizenship. The defendants moved to dismiss for lack of diversity, arguing that Washington was a VI citizen, not a Texas citizen. The district court granted this, overriding an affidavit by Washington stating her intent to return to Texas. Washington appealed, repeating her intent to return to Texas when the assignment was over.

The Third Circuit started by noting that caselaw requires courts to presume in favor of an old domicile over a new one, although the person seeking diversity (in this case, Washington) still has the burden of proof. It’s not clear that the district court took that into account, the Third said, despite the list of facts weighing in favor of finding that Washington lived in Texas: home ownership, driver’s license, doctor, vehicle registration, mobile phone and bank account. The Third acknowledged that Washington’s affidavit was “self-serving,” in that it could easily have been engineered to give Washington the outcome she preferred. But it did not see why the district court relied on the Third Circuit’s own 1968 decision in Korn v. Korn, a decision that said affidavits must be disregarded as self-serving — but only when they are contradicted by inconsistent behavior. Because Washington’s behavior has not been inconsistent, it said, the district court was wrong to disregard her affidavit. It also wrongly disregarded certain evidence, the court noted. Thus, it reversed the district court and remanded the case.

This case is mostly about jurisdiction, not the injury to Washington, so one might wonder why a Philadelphia accident lawyer like me would be interested. As it happens, where a lawsuit is heard can make a big difference. In this case, because the Virgin Islands is a relatively small community, Washington might feel that her chances of objective treatment are better in the federal courts than in Islands courts, whose judges might socialize with business leaders from Hovensa and Triangle. Federal court might also be more advantageous if federal law offers causes of action or rules of court that state law does not have. When the connection is strong, as with Washington’s connection to Texas, this practice can offer injured people an opportunity to make the strongest case they can to hold the negligent party financially and legally accountable.
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As a Philadelphia accident lawyer, I was disappointed to see a recent federal appeals court ruling denying an injured man a chance to pursue fair compensation from the company he says is to blame. In Roth v. Noralfco, David Roth sued a chemical supply company for various causes of action claiming it had a duty to design safer acid tank cars. Roth had a job at a York, Penn. paper company that included unloading tanks of sulfuric acid sent by Noralfco by rail. He suffered chemical burns to his face in 2004 when he attempted to unload a tank that was under pressure. The federal trial court granted summary judgment to Noralfco, saying the bulk of the claims are expressly preempted by the federal Hazardous Materials Transportation Uniform Safety Act of 1990, and the Third Circuit affirmed.

The HMTA regulates interstate commerce involving hazardous materials, giving buyers and sellers uniform regulations even between states. A section of the HMTA explicitly says that “Unless authorized by another law of the United States, a law… of a State… that is not substantively the same as a provision of this chapter… is preempted.” It then goes on to list the areas of regulation that are preempted, which include what is a hazardous material, how the materials are packed and labeled, their shipping documents, notice of any spills and their shipping containers. The Third Circuit found that all of Roth’s tort claims fall under the HMTA’s purview, and were thus expressly preempted by the law. It dismissed Roth’s arguments that his job was not “in commerce” and thus the HMTA did not apply, saying unloading is expressly part of the HMTA. Thus, it upheld the trial court’s decision to grant summary judgment to Noralfco.

This decision is disappointing, because it means Roth cannot pursue compensation for what sound like some very serious injuries. In making this ruling, the Third Circuit did not rule on the merits of the case; it simply said there was no case because federal law has taken away the state-law remedy available to him. This leaves Roth and anyone else involved in shipping hazardous materials without recourse if they happen to be injured by dangerous materials like sulfuric acid while they are at work. As a Philadelphia injury lawyer, I believe our society can and should do better for the people who do this kind of dangerous job and rely on supervisors, colleagues or suppliers to stay safe.
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A court is hearing testimony this week after a teacher has been pummeled and injured by a student at a Philadelphia alternative school. According to reports, two older students are being held for trial on charges that they attacked their teacher at the Excel Academy. Excel is an alternative school in Northeast Philadelphia.

After the alleged attack, the teacher had to be hospitalized and was eventually released in good health. While the defendants remain in custody, Prosecutor Erica Rebstock says the attack by the students that wrongfully injured the teacher was unprovoked.

The defendants, 20-year-old Terrell Carter and 19-year-old Bryan Pressley allegedly attacked the teacher who was returning to class from lunch. Terrell Carter “comes from behind, reaches into his lunch bag. The teacher removes his hand and then Terrell Carter punches him very forefully in the back of the knee.” Carter’s attorneys are saying his client will plead not guilty, while Pressley’s attorney’s declined to comment to CBS Philadelphia yesterday evening.

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When it comes to work injuries and accidents as well as occupational hazards, the coal miner has become a poster child. This week, the Philadelphia Inquirer went six miles deep to report from a coal mine in southwestern Pennsylvania, the kind of many Philadelphia residents and US citizens forget even exists. Pennsylvania is still quite the coal producer and was in fact the fourth largest U.S. coal producer in 2008.

Pennsylvania is at the forefront as coal, wind, and solar power battle it out to become the key energy industries of the future. In the mean time, several US workers in Pennsylvania and the surround states go to work as coal miners, power plant workers, solar panel and wind turbine builders, etc.

Today’s challenge of improving the coal industry and creating alternative energy sources, has put some US workers back to work, but it is important for us to remember the day to day occupational hazards the men and women in the coal and energy industry can face. While environmental and emissions regulations continue to be scrutinized, it is also important for us to remember our country’s energy workers and how we can keep them as safe as can be from work related accidents and occupational hazards.

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That’s just what one firefighter just a few hours North of Philadelphia has just done. Richard LaPiedra, 42, is a well known Staten Island firefighter, previously heralded for his many years with the firedepartment and many heroic feats during his career has just sewed the FDNY. Recently, Richard became injured while on a call. He suffered injuries after tripping over a mound of pot growing paraphernalia while fighting an apartment blaze.

Richard LaPiedra was able to legally sue the Fire Department because he alleged that his injuries were caused by a violation of statutes, namely, the illegal marijuana growing operation and the equipment used for it, according to his injury lawyer. The injuries are allegedly career ending in nature, and for that, LaPiedra could receive a hefty some upon winning the case. “Its devastating to him” LaPiedra’s lawyer said on Thursday.

After the fall, LaPiedra is said to have suffered disabling shoulder and spine injuries. Aside from the FDNY, the court papers also named Robert Pennachio, the owner of the building as a defendant.

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A recent study released Tuesday by a Massachusetts-based nonprofit that supports renewable energy development has found that Philadelphia residents are more concerned than US residents in general on average. Fracking is a term used for hydraulic fracturing as a process for the extraction of natural gas. Studies have shown that his process is harmful to the environment and can contaminate public drinking water.

The state survey was conducted among 403 adults from November 26-30 amidst a national survey conducted among 1,012 adults. Philadelphia residents were most likely to say they are “very concerned” about the health threats, personal injury, and damage that fracking can cause. Pam Solo, founder and president of the Civil Society Institute said concern about fracking “illustrates the point that Americans don’t think of an energy source as cheap or clean if there is a hidden price in terms of safe drinking water and human health.” Several Philadelphia residents seem to be on this page when it comes to fracking.

It is unfortunate that in the Philadelphia area as well as across the world, several processes used by big business put public health at risk. Philadelphia Injury lawyers remind us that this year’s environmental disaster with BP, for example, demonstrates how a corporation damaged the environment, caused personal injury, and put the lives and lively hoods of humans at risk. For this, BP had to pay out richly in settlements. If you believe you or a loved one has been the victim of injury due to fracking or another environmental hazard caused by big business, find out what you’re entitled to by contacting a Philadelphia injury lawyer.

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