Safety and OSHA News

$11M verdict: Why didn’t workers’ comp cover this fatality?

cost-of-safety

Workers’ comp laws usually prohibit lawsuits against companies when a worker is seriously injured or killed on the job. But a lawyer in Texas found a way to skirt the law and win a huge jury award.

Crane operator Adrian Flores was killed after he was pinned by a 1,200 ton weight.

Flores’ crane was one of four working simultaneously to lift the weight from one end of a dry dock to the other.

The load shifted and came into Flores’ cab. He was trapped for over two hours and was conscious for much of that time. He was taken to a local hospital where he died on the operating table.

William Tinning, the lawyer for Flores’ family alleged that Gulf Marine Fabrication:

  • didn’t use enough cranes
  • didn’t send instructions on how to lift the load
  • failed to hire an outside engineering company to design a lift plan, and
  • relied on an unqualified engineer whose plan deviated from accepted practices and contained math errors.

The attorney sued the employer’s parent and sister companies, alleging they had control of the worksite. At the same time, he admitted that the employer bore some responsibility, just not all of it.

Tinning used the deposition of an executive with the parent company who signed the contract, oversaw daily operation and did hiring onsite to show the parent company had control over the crane operation.

The jury assigned 15% of the blame for the employer and awarded $5 million to Flores’ widow, $500,000 to each of his four adult children, and $1 million to each of his two minor children. The remainder of the $11 million award went to his estate for his own pain and suffering.

Lawyers for the company only called two witnesses during the trial: the engineer who designed the plan and an OSHA expert.

Did the jury make the right decision? Let us know what you think in the Comments Box below.

Print Friendly

Subscribe Today

Get the latest and greatest safety news and insights delivered to your inbox.

Comments

  1. …and we wonder why jobs go overseas.

  2. Safety King says:

    The worker trusted his company to provide a capable engineer and lifting plan. He was let down and I’m glad everyone was paid. God knows how many other violations weren’t even addressed.

  3. I agree with John.
    Crane operator is a trade that needs extensive training in most (if not all) states. They know how to lift stuff. They are not supposed to need special engineer instructions. A load shifting is most of the time a rigging error. Rigger is also a trade with training in most states. Now if the operator believed it was not right to lift, the final decision is his. The engineer that miscalculated should be blamed… to a point. Too many times these days, we are trying to pass the blame on someone else and it seems like it stops at the person/company who has enough money to pay. Finally, no matter how many precautions we take, accidents happen, and that is what they are; accidents. Now I was not sitting in that court room and I may have been swayed the other way if so, but where did that $2M estate came from and who does it go to!?!? Seems like a fat lawyer bonus to me.

  4. Apathy in Training says:

    I agree with John, We have a situation where it is definitely more profitable to move higher risk (higher Paying) jobs over seas. At what point does America wake up? There needs to be accountability but also some form of protection for companies, obviously the company had some faults but there has to be some way to protect American Jobs. Maybe we don’t need universal health care, instead universal WC may be an answer. You can’t win punitive damages against the gov.

  5. Not enough data to make a good determination fo the fault on this one. Math error alone may or may not add up to a fault, (no pun intended), depends on the magnitude and direction of the error. The size of the verdict is pretty outragous unless there was some willful issues. Again not enough data. I agree with John, verdicts like this do drive companies out of business and the replacement businesses offshore. In many third world countries the worker is fired on the way to the hospital to avoid WC claims. Not saying it is right, just that it is an added expense of doing business in this and most industrialized countries.

  6. Cool Daddy says:

    It appears, based upon the available information, and the hope that all of the facts were heard, this decision was correct. From my position, this incident was very preventable – it is simple, you don’t take on a task as described until abosolutely sure that it can go on without hurting anyone. Based upon the article’s contents, it seems that it was thrown together haphazardly, not well thought out, and the company ended up spending way more than they would have if they had only done due dilligence, and worked to prevent injury, as opposed to just getting the job done. As Safety King says above, it can almost be imagined this company most likely has safety because it has to, not because it is the right way to do business. As for the comment about jobs going overseas – yes, you can kill people with less cost if you go abroad, but does it make it right?

  7. First, I really wonder if they can ship crane operators building businesses here in the US overseas?

    Second, just because a job is high-risk or does come with a lot of training, does not mean that the people are adequately trained in every situation.

    I think the comments above are twisting the facts to make political points rather than comment directly on the story above. Think twice before you type!

  8. I think the company should be at fault for some of it, but come on………….why didn’t the guy think before he acted. Would you jump out of a plane without knowing how to skydive, would you?? This is what is so wrong with the judicial system. Think before you act…..Every action has an opposite and equal reaction. Why should the employer be blamed, when it was someone else who did it? Why is it commonplace to try and pass the blame off on everyone else, instead of “sucking-it-up” and taking acceptance for your own actions? It was probably a union worker too!!

  9. I disagree with John, companies moving overseas has nothing to do with this particular case, that is a profiteering and traitorously motivated move, to turn away from america only in the name of profits at the expense of the american workers, this is what is causing our employment crisis, and causes the lowering of company standards to stay in business. This has been seen across our country. I do agree with Mike J. to the fact that there is not enough information to make a accurate determination on our parts as to whether this case was justifiable or not. Also, I do agree that the settlement amount was excessive but only the cut that the overambitious lawyer got, not the family’s compensation, as is always the case. Sad for america.

  10. The amount of verdict is too far out of site and unreasonable. Sad loss for the family, but money does not replace a life and the amount is excess,

  11. Fault, partial fault, or no fault, why was the attorney allowed to circumvent established WC law?

  12. Cool Daddy says:

    Agree that the amount was way above what it should have been, but this guy, from the imformation that is posted, was in a cab of a crane, lifting an object. Look, we work with cranes – you do not lift unless you are sure – especially when more than one crane is involved. From what is in the article, there is enough information to lead one to believe this lift was not assessed properly, it was lifted, and a person died. Personal Responibility? Are you kidding me? There were 3 others moving at the same time. What he should have done is told them he wasn’t going to participate – he probably would have lost his job, but he’d still be here. 4 Cranes? You’d better be sure! This company was not sure, or the employee would still be here. This accident was preventable.

  13. Makes sense... right? says:

    Its a wonder that they didnt sue the crane builder for not having a cab strong enough to support said accident. My heart goes out to the family. However that level of judgement is absurd.

  14. It seems as if some are making the assumption Flores caused the load to shift. He was one of four working simultaneously – someone else may have caused the load to shift and move into his cab. Other individuals may not have had the skill or experience needed to accomplish a complex lifting plan. Sounds like the organization was cutting corners by not getting an engineer to design a lifting plan that was safe and could be accomplished by four cranes.

    On a final note – how exactly would crane operator jobs be sent overseas? Ridiculous!

  15. Come on guys. Protecting American Jobs shouldn’t come at the expense of lives. A person died here. What if it was your brother, son, father or husband? Would you still feel the same. Whose going to help raise the children left behind. To me, casualties of war are always unacceptable.
    The amount of the lawsuit; I just don’t know, but the man definatly suffered tremendously before dying.

  16. It is intersting that OSHA provided a witness in favor of the company. If OSHA did an investigation which they automatically do when there is a workplace death, and did not find the company at fault or negligible, then the jury must have been swayed by something else not mentioned in the article. The engineer that designed the plan must have been able to defend his math or the company’s attorney would not have had him as a witness. This story doesn’t tell us enough to answer the question. I have my doubts based only on the information in the article.

  17. I agree that the amount was excessive. I cannot fathom why they would be awarded so much. The operator would not have made that much money in a 20 year career. Why would the adult children get compensation? I also believe that the company should be held liable if something goes wrong. They saved money by keeping it in house with someone that was obviously underquallified. OSHA sets standards for that and should be adhered to. I know everyone is looking at cutting costs where ever possible, but that is not one area that should not be messed with. I also blame the operators, they should been trained well enough to see what might have gone wrong and not done the job until it was done right. Where was the Safety Manager? On a job of that size, safety should have been in there double checking everything. I wonder if I could get $10,000 for stubbing my toe at work?

  18. Do a little research and you will find more details. Interesting case, third party liability. Good attorney. How much do they get in Texas as a fee, 30%?
    More from a google search. If you go to the OSHA establishment page you will find that Gulf Marine Fabricators facilities have been inspected and fined several times.

    In order for an injured worker to recover for what in a construction accident could be catastrophic injuries or death, the worker must identify a third party beyond the employer that is responsible for the accident.

    In a recent case in Texas, the attorney did just that. The case is very interesting for a number of reasons not the least of which was the $11 million jury verdict in favor of the deceased construction worker. Perhaps, more interesting from a legal perspective, was the plaintiff attorney’s ability to tie liability to the employer’s parent company escaping the limitations of the worker’s compensation statutes.

    Because the deceased plaintiff’s estate was barred from suing his employer, the attorney ingeniously argued that the defendant’s (Gulf Marine Fabricators) parent company (Gulf Island Fabrication) was responsible for the plaintiff’s death. The attorney did admit to the jury that there was some fault lying with the employer, but argued that the parent company carried the bulk of liability for the crane accident which resulted in the plaintiff being crushed to death. The jury assigned only 15 percent liability to the employer. The remaining 85% liability accounted for the $11 million wrongful death jury verdict.

    The plaintiff’s attorney was able to show that the parent company and not the employer controlled the crane operations. The parent company controlled every aspect of the crane operations from hiring and firing to daily operations. Oddly, but by necessity, the defense attempted to place all the blame on the employer, a related company, to gain the protective shield of the workers compensations statutes.

    The fact that a defense attorney would attempt to place blame on a company related to his own client clearly illustrates the reality that workers compensation statutes should really be called employer protection statutes. These statutes have sad and tragic consequences for workers and their families. Neither the worker nor his or her family will recover anything close to actual damages in cases of serious injuries or wrongful death. It takes little imagination to envision the economic harm, let alone the pain and suffering, that occurs when a worker is permanently injured or killed.

    Unfortunately, the workers compensation statutes are here to stay. As such, if you or a loved one are injured or killed on the job, it is important that all possible causes of the accident be determined. It may very well be that the workers compensation statutes can be avoided by identifying third party liability for the accident. Or as the ingenious lawyer in this case was able to do, tie the liability to a related corporate entity not protected by the worker compensation statutes.

    http://www.CollinsAttorneys.com

  19. Jaxon Lee says:

    Too many times it’s all about the almighty dollar! Competition is what has driven our country, and competition breeds shortcuts and accidents. In the total picture, there are way too many crooks, the justice system stinks at all levels, and our country needs a major overhaul. The value of a life has no price tag — period! You canot bring it back with money! Penalties need to fit the crime–eye for an eye and a tooth for a tooth! Justice can succeed by that law, and only by that law! In this case a number of people were directly quilty for the unfortunate mishap including the crane operator! You do not make a lift without making sure there is a plan and you are confident of your abilities to do it.
    The company shortcut the system by not hiring an expert in the field, or by not providing the proper equipment for the lift. Whoever okayed the plan from a safety point of view failed to do their job as well. The penalty was totally out of line and someone should be doing some time!

  20. This company is in Aransas Pass, just north of Corpus Christi – we use them for repair of rigs, offloading of large, heavy tanks, and so on. They have an excellent reputation and safety record. The oil and gas business is a dangerous one – very large, heavy objects are involved – hundreds of tons moved at a time. This incident happened in the graving dock. Sometimes, ‘stuff’ happens – it doesn’t take much to cause all hell to break loose. Constant vigilance is the motto on our rigs – and many others. We grieve the loss of life – but it happens in this business. We learn from it and move on.

    As for sending such jobs ‘off shore’? Not a problem, senor – just 100 miles down the coast in Matamoras, Mexico – across the Rio Grande from Brownsville, TX is a nice marine repair facility that is ‘coming out of the ground’. They are gearing up to serve Pemex, the Mexican state-owned oil company.

  21. Accidents can and will happen. We use training and safety measures to help prevent them.
    The article stated that the laywer was able to “skirt the law” and take it to a jury trial.
    I wish it would have explained how he was able to do this. The problem with jurys are that some members are easily swayed by a smooth talker or are against business. You do have to feel bad for the family, and if the crane operator was at fault, that would have come out at trial.

  22. I can see that there are some very literal minded types here. A crane operators job isn’t going oversees. But a company that has a choice will look at costs such as the WC and insurance rates which sett6lements like this cause to increase and that may make them chose Mexico or some other country to locate in. We have some of the highest wages in the hemisphere, high tax rates, stiff and costly environmental laws, strict safety requirements and in some cases stifling unions. Throw in the possibility of this type of judgement and it makes companies think. As for some who gloriously claim that it is better to lose money and stay in the US, there is a reason you are not a captian of industry. Stockholders demand returns on their investment and few if any care where the profit comes from. Any board that sugested that the company rule out overseas locations simply because it would cost US jobs would in all likelihood be out the door the next election. Jobs are leaving this country for a reason. It is not productivity, we have some of the most productive workers in the world, it isn’t tech, we are the best or damn near, it is the auxillery costs of doing business. We need to come to grips with this or we face becoming another England.

  23. Thanks safemba! Good information!

  24. From the editor: Replying to some questions from Commenters, regarding “skirting the law”:

    First, a short definition of workers’ comp from Cornell University’s Web site: Workers’ Compensation laws are designed to ensure that employees who are injured or disabled on the job are provided with fixed monetary awards, eliminating the need for litigation. These laws also provide benefits for dependents of those workers who are killed because of work-related accidents or illnesses. Some laws also protect employers and fellow workers by limiting the amount an injured employee can recover from an employer and by eliminating the liability of co-workers in most accidents.

    The important part in this case: limiting the amount an injured employee can recover from an employer.

    Injured workers, or families of killed workers, are usually prohibited from suing the employer because workers’ comp is “the exclusive remedy.”

    So, “skirting the law” was just a reference to the fact that, in this case, the lawyer for the deceased’s family was able to sue the parent company of the dead worker’s former employer and win a jury award.

    The usual exception is when an injured employee can prove that there was an “intentional wrong” committed by the employer.

    So, in this case, the lawyer “skirted the law” by just being able to successfully sue for damages above and beyond what’s provided by workers’ comp.

  25. Made in China!!!!!

    These lawyers will be the end of the USA, they need to be put on a boat to china, and sent with the seacocks open!

  26. apathy in training says:

    Several folks have missed the point entirely. WC is gov. by the state when it comes to death benefits and provides some protection for companies for stupidity. If you read the article you should have noticed the word Loop Hole. I for one believe the family should have some benefit, however the benefits need to have some temper not a loop hole for some attny to play games. Lets face it we’ve all seen the commercials of the Dewy Cheatem & Howe Law firms. They get sometimes 30% of the estate. I was involved in a death case a few years ago that turned into an OJ trial. Maybe the guy in the crain fell asleep? We will never know. Thats why they are called accidents. If gross negligence is the issue criminal charges are at hand. The guy that stated it has nothing to do with companies moving to other countries. The 11 mil will make you rethink your position if you were the company owner.

  27. Two of the workers grown children worked for the same company and witnessed the accident. His boom came into his cab and cut him in half. Everyone knew when they got him out, he would bleed to death, which he did on the way to the hospital. The load capacity of the crane should not exceed 50% of its capacity in most cases. In this incident, the cranes were loaded at 91% capacity which left no room for error. In addition, they were operating on muddy, soggy ground which made the cranes slightly unstable. I don’t agree with the $11M verdict, but they definitely needed a wake-up call when it comes to safety. This could have been avoided if the company had done what it was supposed to.

  28. For those of you agreeing with “John,” are you safety people or just ordinary folks? If you are safety folks, then go to school and get some education and learn the profession for Pete’s sake!

    Heaven help both the companies and employees you are entrusted to protect. Noticed I did not refer to you as “safety professionals.”

  29. JM, are you saying this type of settlement as a class and the subsequent increase in business costs have no bearing on a corporate decision of where to locate??? Successful businesses look at all costs and condition on decisions from where to locate to where to sell. This fact is pretty self evident. I have done siting assesments for plants and labor availability and cost, (WC and Insurance are labor costs) figure prominently. This is one of the reasons certain states are having job drains, Michican comes to mind. I fail to see how this would impact whether a person is a safety professional or not. Please elaborate.

  30. This is a terrible tragedy. 11 million dollars will not bring the worker back to life. At least his family is getting some compensation. With adequate resources the accident most likely could have been prevented. WE do not have the details. I have to say the family hired the right attorney.
    This is why the company has insurance for unforseen tragedies. They will incur higher costs in the future. This will provide an incentive to ensure accidents are prevented.
    Will they go to Mexico? Somebody posted there was a similar facility close by, so if they have not already gone why will they now? Whenever you move tasks overseas you will always incur unforseen hidden costs.
    One last item, when it comes down to insurance the Republic of Texas does have some interesting cases. Could legislation and existing law be a factor?

  31. Cool Daddy says:

    All. First the settlement, as with many settlements in this country is extremely excessive. I see the merit in John’s and Mike’s verbiage from that angle (tort reform anyone?). However, just based on the complexity of the event, the seeming lack of planning by the company, (or the companies parent company), and the fact that an employee died, they left their rear end hanging out. As I tell my kids, once you are caught, you don’t dictate the penalty – someone else does. As for companies going overseas, there is a balance. One would hope (if this company doesnt run) this company would now understand the need for a lifting plan, proper training, and a little bit about the right thing to do in the first place. So there has to be some impact, but the big question is how much? If you have ever had to knock on a persons door and tell them their daddy ain’t never coming home – then you may not understand that.

  32. Safety King says:

    I think what he is saying we should not be willing to compromise safety then relocate our business when we have failed our folks. Being an employer in the USA requires a safety committment to the people we employ. There will always be accidents because we are human and to err is human. But an organization can put safe procedures into place to offset mishaps. Also we should never minimize the worth of human life.

  33. IThere are only “hidden” costs for those that fail to look. In my last corporate life “we” had 3 overseas plants. 2 in Mexico, 1 in Canada. The Mexican operation was so profitable compared to our stateside plants that all new programs ended up there. The canadian operation, while not particularly more profitable, did have the advantage of very lax environmental regulations, comparitively, allowing major permit changes in as little as 90 days. in one case the same permit mode in the states was estimated to take up to 2 years AND required the installation of a 1.6 million dollar scruber. Tiem an dcost in Canada??? 60 days, no scrubber. Where did the line go? No brainer. Since I moved on to greener pastures the company has shutdown 2 stateside plants and reduced the workforce at the other 6 while continuing to expand overseas. We need as a country to get a better handle on what is required to maintain safety and environmental cleanliness and jetison the regulations that complicate life but do noting to improve the environment nor increase safety. A good start would be to have all regulator be required to do 5+ years in the private sectors prior to getting that big fat govt job. As for the legislators who pass these silly extravegances, term limits for all and to al a good night.

  34. Cool Daddy says:

    Mike, I wholeheartedly agree with every word you wrote – tru dat! I come from a long line of coal miners and Appalacia in the Eastern part of the US. What started out in my specific area as a sytem to ensure the safety of the worker has evolved into a complex quagmire. The Division that I work for now has a very good safety program the works against the complexity and works toward simplization – and it has been a blessing to the entire worldwide organization from any perspective – Financial to Employee Morale. We emphasize personal accountabiltiy, leadership, and doing the right thing – regardless of regulatory requirements. We do have one thorn – OSHA comes in, does an inspection, removes paperwork and ideas, understands the program is very solid, but will not leave without a miscellaneous ding. The environmental side of things – even more of a quagmire, and so I sympathize with your words. In this particular case, again the award was extravegant – definately too high. I am convinced this worker would not have died, if the company has met it’s burden, most often shortcuts are based in percieved shortfalls or expectations of higher profits. My take is this is not the first time a task like this was undertaken, they got by with it the other times, and all of the pieces (no pun intended) fell into place to cause the incident. As far as moving from the country – that is their choice – but hopefully – a change takes place in their minds that more could have been done to prevent this regardless of where it took place.

  35. Many of these lifting accidents can often times be avoided if proper planning went into effect prior to the lift.

  36. As a long time WC professional I will say I am not surprised. The caps on Death Benefits are absurd. For instance in Georgia the cap is 150K. That crane Operator probably made that in a year.
    The verdict was high – but if you consider the wage loss to his family and their inability to continue their life style because of this unfortunate incident it’s probably not that far off. Crane operators are highly compensated. His AWW was probably more than 2K a week. Depending on his age and LE his wage loss would have been significant. WC never comes near to actually compensating someone for their loss, especially in death claims, because of caps. The verdict was based on wage, medical and pain and suffering damages…and from the size – punitive.

    I am surprised at the Claimant’s attorney ability to get around the exclusive remedy. Apparently the Employer/Parent Company/Insurer attorney had no case law to win his argument. I suggest watching a movie called “A Civil Action” with Travolta and Robert Duvall for an interesting take on Big Business, the Insurance Industry and claimant’s. I used to be jaded until I got out in the field and saw my claimant’s face to face. It’s an eye opener.

    I recall a claim where a young girl working for JC Penney was shot by a stalker. He had come to the store several times to ask her out. She politely refused as she was engaged. He kept coming into the store – at one point was escorted out by security. Several weeks later he came in the store to the jewelry counter where she worked and shot her in the head. WC paid nothing but her funeral expenses. She had no dependents. It was just a life wasted. I have at least 50 stories like this – so I don’t feel too bad that someone finally had to pay up for not doing what they should have done to begin with.
    Just my two cents.

  37. ATL, which state did the homicide occur in??? I am unaware of a state which only pays for the funeral when a worker is killed. Manyhave limits which can be high or low depending on who you talk to but none that I am aware of are that low. If you read the article you wil see that the ADLUT children got money as well. This is not normal under WC. Again which state are you describing; I want to make sure i don’t get caught work related dead there, pun intended.

  38. Sometimes an accident is just an accident. Workman’s comp protects the employer for accidents that happen. If there was gross negligence on the employer’s part, then of course the employer should be penalized; as well as anyone that had a part in the negligence. If the jury found for the plaintiff then the evidence must have been strong. The award may seem high to some but really, what is the price you would put on your love ones?

  39. Death benefits in California. From their web page. $160000 is the maximum. Maybe this is why families of dead workers hire attorney to get more money. Is $160000 (and this is better than many States) enough compensation for the death of a family member? Regardless of who is at fault or other circumstances.

    Death benefits

    In the event a worker is fatally injured, reasonable burial expenses, up to $5,000, are paid. In addition, the worker’s dependents may receive support payments for a period of time. These payments are generally payable in the same manner and amount as temporary disability benefits, but the minimum rate of payment is $224 per week. The total aggregate amount of support payments depends on the number of dependents and the extent of their dependency. Generally, the maximum (where three or more total dependents are eligible) is $160,000, though additional benefits are payable if there continues to be any dependent children after the basic death benefit has been paid.

Speak Your Mind

*