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Construction Site Fatalities
If you lost a family member due to a construction site accident, you must first determine whether or not the construction company purchased workers’ compensation insurance, whether or not your family member was considered an employee of the company according to the eyes of the law, and, most importantly, if the negligence of the construction company led to the fatal accident. There are myriad questions that need to be answered, and many aspects of the case to prove. Your family needs a wrongful death attorney who knows how to investigate this kind of accident to provide the answers to those crucial questions, and to devise an effective plan in order to secure equitable compensations, no matter the circumstances of the case. More about San Antonio construction site accidents
Subscriber vs. Non-Subscriber
The way your case is handled depends almost entirely on whether the construction company either purchased, or “subscribed” to, worker’s compensation, or chose not to pay for workers’ comp insurance, and is therefore a “non-subscriber.” There is a vast difference in the manner in which claims are handled between the two.
The state of Texas strongly encourages companies of all types to purchase workers’ compensation insurance in order to stem the tide of lawsuits involving injuries or death, lawsuits that further choke an already exceedingly over-burdened legal system. Thus, when an employer purchases workers’ comp, it’s getting more than just insurance – it’s buying lawsuit protection. The reason is simple; family members of those killed in construction accidents cannot sue a subscribing company unless gross negligence occurred. Workers’ comp is designed to compensate loved ones for the loss of a family member, however, a lot of times insurance companies will attempt to goad you into settling for an offer that doesn’t come close to compensating you for the tragedy you and your family have experienced.
Insurance providers are in business for one reason – to make money. They are not concerned with helping you and your family heal from your devastating loss. If there’s any way they can get you to accept less money, they will make more money. Hundreds of families of construction workers who die due to a workplace accident in Texas either see their claims flat-out denied or significantly under-cut, all in the name of making the insurance company more money.
Most insurance companies respect only negotiations with lawyers. If a representative of an insurance provider walks into a negotiating room and sees someone sitting at the table without legal help, he or she will probably laugh quietly, then celebrate later after you have settled for a ludicrously low amount of money. You simply must have an experienced lawyer on your side if you have any intention of getting fair restitution.
There are only two instances where family members of a loved one wrongfully killed in a construction accident can sue a subscribing company:
If the death occurred due to the gross negligence of the construction company.
When there may be more than one party in addition to the employer that may be to blame for the wrongful death. Other employees, other contractors or independent third parties that provided malfunctioning equipment could be liable for either all or part the death, and a lawsuit may be filed against them as well.
A skilled wrongful death attorney is very familiar with examining all of the details surrounding a case, and formulating a plan of attack to get the compensation you have coming. The attorneys at our Law Firm will immediate launch an investigation of the accident scene to ascertain what third parties may share responsibility and make them all pay dearly for your family’s tragic loss.
Gross Negligence Defined
Again, the only way you can sue a company that is a workers’ compensation subscriber it by proving its gross negligence led to the death of your family member. Instances such as momentary lapse of focus or reason, or an isolated error, are considered standard negligence and are protected by workers’ comp. But if either an employer or one of its employees habitually displays recklessness or carelessness in the performance of their duty to protect others, that is considered gross negligence. Say a fellow worker accidentally knocks a cinder block off the roof of a building and crushes an employee standing below. This is an example of standard negligence. But if the construction company habitually allows a construction site to pose a hazard due to debris constantly lying around, and other objects have repeatedly been knocked from the building, then that is gross negligence. The worksite’s foreman should have been reasonably able to anticipate the possibility that a fatal accident could have been a consequence of that hazardous environment.
One of our clients was the family member of a construction worker who dies when his boss ordered him to work on crane without a properly functioning safety harness. Not only did the worker’s harness malfunction and cause him to fall to his death, the owner of the company had the sheer audacity to race to a nearby hardware store, buy a new harness, and attach it to the corpse before the death was even reported. But because we undertook an investigation and interviewed other workers who were at the scene, we were able to expose the owner’s callous attempt at a cover-up.
In order for your family’s wrongful death lawsuit to be successful, you need to have an experienced attorney on your side who can strategize a rock-solid case that can meet the high standards necessary to prove gross negligence.
Because a non-subscribing company did not purchase workers’ comp insurance, the only way to gain restitution is through a lawsuit. In this case, however, the plaintiff needs only prove the occurrence of standard negligence to win restitution, and standard negligence has a much lower standard of proof.
The State of Texas, in effect, punishes non-subscribers by making it easier for a plaintiff to win a wrongful death lawsuit. However, the litigation involved in such a case can be much more intricate, and emphasizes even more your need to have an experienced attorney on your side. Not only must the plaintiffs in this kind of case prove their loved one’s death was due to the company’s standard negligence, they must also prove the amount of compensation they are trying to obtain is fair and just.
The compensation associated with wrongful death damages include:
Medical and funeral expenses as a result of the construction fatality.
Financial support provided by the victim lost as a result of his or her death.
The mental and emotional trauma as a result of the family member’s death.
The consortium and love provided by the deceased that cannot be replaced.
Restitution for survival damages include:
Medical expenses arising as a result of the construction site accident.
Salary lost while the victim would have been hospitalized, or salary that would have been lost by the victim because of long-term disabling injuries caused by the accident.
Mental and emotional turmoil that the deceased would have experience had he or she survived.
The physical pain and suffering experienced by the deceased.
Hurdles in Obtaining Wrongful Death Case Compensation
Non-subscribing companies have very few options in trying to avoid paying a construction wrongful death claim, because, as stated above, the state of Texas designed workers’ compensation laws to try and reduce the amount of lawsuits, and thus strongly encourage companies to subscribe. But even a non-subscriber has a couple of tools it can try to utilize to defeat a wrongful death claim. These are described in detail below.
Sole Proximate Cause
This only true defense a non-subscriber can use to avoid paying a claim is the Sole Proximate Cause defense – that the deceased employee was 100 percent responsible for his or her own death. The only way an employer can successfully prove this defense is by making your family out to be a habitually incompetent employee who was negligent on a regular basis. If successful in proving Sole Proximate Cause, the employer will be able to keep from paying your family the compensation that you deserve.
While it’s true the company did not see fit to pay for workers’ comp insurance, you can guarantee that company will open its checkbook and pay big money to a defense lawyer who is adept at dragging deceased construction workers through the mud. It is imperative you have an experienced and effective attorney by your side to defeat those lowdown tactics and protect your loved one’s reputation.
The Employer/Employee Relationship
A few employers will try and skate the rules by claiming the deceased worker was never really a “true employee,” but a contractor. And in Texas, contractors are solely responsible for their own safety in the workplace. But merely making that claim does not mean that Texas law will view that worker as a contractor. Attorneys with our Law Offices are very adept at proving that an employer/employee relationship existed by examining pay stubs and contracts and interviewing fellow workers in order to satisfy one of the several standards that prove an employer/employee relationship. These include:
The employer held back Social Security or taxes from the worker’s paycheck.
The employer was responsible for providing the equipment necessary for the worker to perform his or her job.
The worker was expected to follow a set schedule established by the employer.
Your family member either signed a document, or performed a task, that limited his or her rights while working for that company. For example, he or she signed a document that stated he or she agreed to comply with an employee handbook or took a drug test.
The worker was not hired for an isolated, single job, but rather for an extended, undetermined amount of time.
Your loved one was paid via salary or hourly wage instead of job-by-job.
What Can You Do?
The first thing NOT to do is to ever, ever give up your right to sue by signing any sort of admission of your family member’s liability for the accident in exchange for a woefully inadequate settlement.
Next, you must act immediately to find a lawyer, or at least as soon as you can. It can be very difficult, and require a lot of proof, to protect the reputation of your deceased loved one.
Every minute you wait to hire an attorney is every minute that evidence disappears – witnesses’ memories become cloudy, and the physical characteristics of the accident scene itself begin to alter. The longer you wait to seek legal help, the more difficult time you’ll have unearthing the evidence that is crucial to prevailing in your case. A detailed investigation needs to immediately be launched; after all, the construction company, insurance provider and defense lawyers will already be working for the other side. You need a tenacious and passionate attorney working on your side to match them stride for stride.
The wrongful death attorneys at our Law Offices have helped the devastated families of construction fatality victims for two decades. We’ve won hundreds of wrongful death cases that resulted in millions of dollars in judgments for our clients. When hired, we will launch an immediate investigation into the circumstances surrounding your family member’s death and gather the evidence you will need to prove your case. And we will not hesitate to pursue legal action against any liable third parties if necessary in order to ensure all of those responsible for the death of your loved one are held accountable. Our attorneys have either negotiated settlements with, or won lawsuits against, every major insurance company in the United States, so their high-powered operatives are well aware of our courtroom acumen. As a result, there are many times and insurer will choose to make our clients a reasonable settlement offer rather than risk losing a much larger amount of money in a lawsuit. And if they choose not to engage in negotiations, we’ll be well prepared to face them in court and make them regret that decision. If you have lost a family member due to a fatal construction accident, call our Law Offices as soon as you can for a free and confidential consultation with an experienced wrongful death attorney and find out how we can help you get the justice and fair restitution your family deserves.