Confidential
Settlement – $538,000Facts
At the time of the accident on Nov. 15, 2001, plaintiff Brewer was working as a carpenter for defendant Level 5
Construction which had been hired to put an addition on to the home of defendants Rick and Camille
Fernandez. The Fernandez defendants were concerned that the addition then in the process of being built would
be exposed to the rain/bad weather. According to the defendants, the plaintiff agreed to cover the roof
sheathing if someone got some plastic. Defendant Rick Fernandez brought home a roll of plastic covering and
at the end of the work day, at approximately 5:00 p.m., asked the plaintiff to go up on the roof to put the plastic
covering over the exposed roof/addition. Defendant Fernandez helped the plaintiff cut the plastic covering and
also supplied him with a ladder to go up on to the roof. The roof was 16 feet above ground and 10 feet above
the roof that existed at the residence prior to the construction of the second story addition. The plaintiff was not
wearing a personal fall arrest system or a personal fall restraint system nor did he have any training from his
employer, Level 5 Construction, regarding safety procedures. In laying the plastic covering onto the newly
constructed roof on the second story of the Fernandez residence, the plaintiff stepped on the plastic and slid off
the roof, falling approximately 10 feet onto a fence and then falling an additional six feet to the ground. The
plaintiff suffered a lacerated aorta, a spinal fracture, and a severe injury to his spine causing a paralysis in all
four extremities.
The legal theory against the Fernandez defendants is that they retained control over the job site/over the work of
the contractor (the plaintiff's employer) and the exercise of that retained control affirmatively contributed to his
injuries. The plaintiff's legal position was that the Fernandez defendants could not avail themselves of the
Privette v. Superior Court line of authority which protects owners from claims of subcontractor employees
injured on the job.
Settlement Discussions
The only insurance available to cover the plaintiff's injuries was a homeowner's policy in the amount of $500,000 that the Fernandez defendants had with Allstate Insurance Company. Allstate agreed to put up the $500,000 policy limit. The Fernandez defendants agreed to contribute an additional $38,000 towards the settlement. After the parties agreed on a settlement, a lien was filed by State Compensation Insurance Fund for benefits previously paid to the plaintiff in the amount of $527,000. A pre-trial settlement conference was scheduled for Nov. 4, 2005 before the Honorable Frank Roesch and the parties submitted settlement conference briefs. Thereafter, the settlement was put on the record before Judge Roesch on Nov. 4, 2005.
Injuries
The plaintiff is now 44 years of age and because of the spinal cord injury he is totally disabled, unable to work, and requires lifelong attendant care. The injury caused an incomplete spinal cord injury at C5-6 resulting in an incomplete quadriparesis. In late 2003, an intrathecal Baclofen pump was surgically implanted in the plaintiff so as to control his spasticity with the release of medication internally. The pump has to be refilled every few months. As a result of the incomplete spinal cord injury at the C5 level, the plaintiff has significant weakness in all extremities, with the left side weaker than the right. The plaintiff is able to move all extremities but has severe spasticity and there is chronic pain related to the spinal cord injury. The plaintiff was previously left-handed but now has learned to do many of his activities of daily living using mostly his right hand which is stronger and has greater range of motion. The plaintiff uses a motorized wheelchair for mobility and is able to ambulate only a few steps with the use of crutches. The plaintiff requires some assistance with dressing and bathing and is dependent in meal preparation and household tasks. He also requires some physical assistance in the administration of medications. The plaintiff has in-home attendant care and will require that in the future.
Result
Settlement: $538,000.
Other Information
Defendant Level 5 Construction was fined by Cal-Osha for not having approved personal fall arrest or fall restraint systems. This is required if the work exposes a worker to falling in excess of 7+ feet from a structure. In addition, defendant Level 5 Construction was cited/fined by Cal-Osha for not having an injury prevention program when the employer previously had been made aware of the fall hazard. The additional structure added on the Fernandez residence was 27 feet in height and the plaintiff fell 16 feet. Because of this employer negligence, State Compensation Insurance Fund waived its lien and withdrew its right to reimbursement and credit for monies received by the plaintiff in the third party lawsuit/settlement.
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