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$2.5 Million Settlement for fall from Tanker Truck

Case Synopsis:

This workplace injury action stemmed from 55-year-old truck driver Joseph Guido’s claims that lax safety precautions at a South Jersey refinery owned by Koch caused a debilitating 12-foot fall in January 2001 while he helped a Koch employee transfer liquid asphalt into the tanker he was piloting.

According to court papers, Guido asserted that while perched on the side of his truck as he helped the Koch employee guide an asphalt-loading pipe into his tanker, the unclogging of a blockage caused the pipe to jump up knocking Guido down onto the concrete floor below.

According to plaintiff attorney Richard Jurewicz of Galfand Berger in Philadelphia, Guido’s injuries as a result of the fall included a broken left hip, broken left eye socket bones and permanent hearing loss and disequilibrium. Guido contended that he was rendered permanently disabled.

“The case would’ve settled for double [what it did] if it stayed in Philadelphia County,” Jurewicz said.

Jeffrey Lutsky of Stradley Ronon Stevens & Young in Philadelphia, who represented Wichita, Kan-based Koch in Guido-said that the defense did not dispute the extent of Guido’s injuries, but they were convinced that Guido could have found a desk job with only a modest decrease in salary. “Given the significance of [Guido’s] injuries, we were satisfied it was a fair resolution of the claim,” Lutsky said of the settlement. He worked on the matter with partner Jeffrey Grossman.

According to Jurewicz and Lutsky, the case was filed in Philadelphia because the plaintiff’s side believed Koch regularly did business in the city.

The defense sought to transfer to another county through an improper venue motion, and a six-month fight on the issue ensued, the lawyers said. After discovery and a hearing on that issue, Philadelphia Common Pleas Judge Mark I. Bernstein, citing Koch’s business records, concluded that the city’s court system did not have jurisdiction in the matter.

Guido was then transferred to Berks County, where Koch operates an asphalt facility. It was tentatively assigned for trial to Berks County Common Pleas Judge Albert A. Stallone, they said.

The parties agreed to seek a local mediator through the assistance of the Berks County Bar Association. The lawyers said they agreed on Hatt as a mediator because he is a general practitioner who has represented both plaintiffs and defendants and is familiar with the typical sizes of verdicts and settlements in actions filed in the county’s common pleas system.

Jurewicz said Guido’s demand was for $7.5 million. Lutsky said he believes it was for $8.5 million. Both agreed that Guido rejected an initial settlement offer from Koch for $875,000.

The mediation before Hatt took place on October 26. During the mediation, they said, the defense called attention to the relative scarcity of multimillion-dollar verdicts and settlements reported out of Berks County. The defense also argued that there was strong evidence Guido had been at least partially responsible for his injuries, given the way he allegedly chose to position himself while helping guide the load pipe, the attorneys said. And the defense further reasoned that even if found liable, Guido could be considered as having been a borrowed employee of Koch at the time of the accident, thereby giving the company an employer’s statutory defense.

Jurewicz and Lutsky said that Berks County Common Pleas Judge Scott E. Lash had denied a Koch motion for summary judgment based on that issue, but that Koch could have raised that argument at trial. According to the terms of the settlement agreement, the lawyers said, Koch is permitted to pursue a claim for contribution against Guido’s tanker’s manufacturer, E.D. Etnyre & Co. Koch had had Etnyre joined to the matter as an additional defendant, but Guido chose not to develop a case against the manufacturer. Etnyre did not participate in last month’s mediation proceedings, they said.

Although Koch is currently responsible for the full $2.5 million settlement, a “significant part” of the sum will be covered by the company’s insurance,” said Lutsky, who declined to go into details about his client’s liability coverage. Lutsky also said that Koch intends to seek contribution to the settlement from Etnyre. According to Jurewicz, Guido is married and a father to seven grown children and stepchildren.

Outcome:

The lawyers said they had expected the trial in the matter to last two weeks. However, the matter settled for $2.5 million after a daylong, eight-hour mediation session. Richard M. Jurewicz, Esquire of Galfand Berger handled this matter. For more information on this case, please contact him at rjurewicz@galfandberger.com.