Facts

On May 26, 2011, plaintiff Harry Deschene, 53, was working for Pavement Recycling when he was injured on the job site during a repaving of State Road 43 in Fresno. Don Davis, an employee of Emmett Excavation was driving a water truck owned and provided by Emmett Excavation, and ran over Deschene while backing up his truck. The truck knocked plaintiff to the ground and ran over his mid-section.

PLAINTIFF'S CONTENTIONS:
Plaintiff claimed that Davis saw plaintiff walk by the water truck and go behind it, but after he lost sight of him, he assumed he could back up the truck. Plaintiff contended he was standing behind the truck with his back to the truck engaged in a work-related cell phone call in a noisy construction site environment. Plaintiff alleged that Davis, in violation of his employer's own rules and below the standard of care failed to walk around the truck to clear the area before backing up.

DEFENDANT'S CONTENTIONS:
Defendant claimed that Davis was a "special employee" of Pavement Recycling and as such plaintiff was limited to his workers' compensation remedy. Further, plaintiff was negligent by walking behind the truck and engaging in a cell phone conversation and not hearing the backup warning sounds made by the backing truck.

Specials in Evidence

$577,000 medical expenses, and temporary and permanent disability

Injuries

Plaintiff claimed a pelvis fracture with disruption, right elbow dislocation, large posterior pelvic hematoma with split-thickness skin graft, thoracic split thickness skin graft donor site, malnutrition, anemia, hypogonadism, mild neuropathy and depression.

Result

The case settled for $3.3 million plus waiver of workers' compensation lien of $577,000 and third-party compromise and release.

Other Information

FILING DATE: March 25, 2013.