July 2, 2007

SUBCONTRACTOR PAYS OUT $1.8M TO WORKER'S FAMILY

Jacqueline Bueno, Administratrix of the Estate of Hector Salemi v. All Phase Construction LLC: The wife of a Greenwich man, who was paralyzed and eventually died as a result of injuries sustained from falling down an elevator shaft at a construction site, has collected $1.8 million.

Hector Salemi was 38 and employed by A. Pappajohn Construction Co. when the accident occurred on Feb. 14, 2002. He was working on a building renovation project on Havemeyer Street in Greenwich when he fell through an unguarded opening to an elevator shaft that was under construction. The fall left him a paraplegic, and three years later he died from the injuries.

The Occupational Safety and Health Administration (OSHA) later cited A. Pappajohn Construction Co. for not supplying the proper fall protection for its workers. But because Salemi collected workers’ compensation, he could not sue his employer unless he could prove an intentional tort, said plaintiffs’ attorney Joel T. Faxon, who handled the case for Salemi’s estate. “Those cases are extremely rare,” said Faxon, of Stratton Faxon in New Haven.

Just one month before the statute of limitations to bring suit was about to expire, Faxon discovered that All Phase Construction LLC was a subcontractor on site when the accident occurred. Although All Phase had not been cited by OSHA, Faxon was able to prove that the company also did not provide proper fall protection for its workers.

Faxon said All Phase’s actions were particularly egregious because the company would remove the fall protection during the work day, seemingly when it was most necessary, and would reconstruct it when it was time to leave work for the day. Thus Faxon filed a negligence suit against All Phase and gave up the idea of an intentional tort claim against A. Pappajohn. “It became clear we couldn’t prove Pappajohn intentionally hurt Salemi,” said Faxon.

The case, which would otherwise have gone to trial this summer, was settled after a full day of mediation before U.S. Magistrate Judge Thomas P. Smith in Hartford. The deal was finalized in May. Faxon credited Smith with resolving the case.

Normally, an injured worker winning a settlement has to repay what he or she has collected in workers’ compensation benefits. But Faxon was able to negotiate with A Pappajohn so that Salemi’s estate had to repay only $400,000 of the $1.2 million workers’ compensation lien. Faxon said that concession was the key to the entire settlement.

Pappajohn was represented by Boston attorney Michael L. Mahoney, who could not be reached for comment. All Phase was represented by Christopher L. Jefford, of the Boston office of Bonner, Kiernan, Trebach & Crociata. Jefford did not return calls by press time. Zurich Insurance Co was All Phase’s carrier.

“In the end it was a fair settlement for all the parties involved,” said Faxon. “Hector’s family is obviously very distraught to have gone through everything they’ve been through over the past four-and-a-half years. They wanted to get the case behind them.” Salemi is survived by his wife, Jacqueline Bueno, and two children from a prior marriage.