DeMarco v. Loftus Construction

$7.8M Settlement

Date of Settlement: April 22.

Court and Case No.: C.P. Philadelphia No. 170501773.

Judge: Shelley Robins-New.

Type of Action: Personal injury.

Injuries: Spinal injuries, pneumonia.

Plaintiffs Counsel: Larry Bendesky, Adam Pantano, Saltz Mongeluzzi Barrett and Bendesky, Philadelphia.

Defense Counsel: John Delany III, Delany McBride, Philadelphia; Joseph Fowler, Fowler Hirtzel McNulty & Spaulding, Philadelphia.

Comment:

A man injured after falling 10 feet from a platform on a construction site has settled his lawsuit against the general contractor for $7.8 million, according to his lawyers.

The lawsuit was filed against defendant Loftus Construction Inc., by plaintiff Raymond DeMarco, who claimed that a faulty railing on scaffolding caused him to fall to the ground, resulting in spinal injuries and his contracting pneumonia while in the hospital.

DeMarco, who is represented by Larry Bendesky and Adam Pantano of Saltz Mongeluzzi Barrett and Bendesky, claimed that Loftus violated Occupational Safety and Health Administration standards by not ensuring safe working conditions.

“This was a completely preventable accident where the general contractor violated OSHA standards and their own safety policies, resulting in a devastating accident that will have a lifetime impact on a decent, hardworking man,” Bendesky said.

The accident occurred Nov. 16, 2015, at the Willow Grove Ave. bridge in Philadelphia. DeMarco, an employee of Jupiter Contracting, was sandblasting and painting the bridge, which passed over Southeastern Pennsylvania Transportation Authority train tracks, when he fell.

According to the plaintiff's settlement conference memorandum, DeMarco will never return to work and “his life, and that of his family's, has been destroyed as a result of Loftus' violations of its duties and responsibilities as general contractor on the project.”

Loftus argued in its court papers that compensation was impossible for DeMarco.

“Putting aside the plaintiffs' inability to carry his factual burden of proof since no one knows how this accident occurred, the plaintiffs cannot recover as a matter of law since Loftus was the statutory employer of Mr. DeMarco,” Loftus' papers said.

Loftus claimed that as a statutory employer, it was immune under the Workers' Compensation Act. Loftus also argued that it was owed indemnity by Jupiter.

“Under the subject contract, Jupiter was required to carry $1 million in general liability coverage and $10 million in excess coverage and to name Loftus, PennDOT, the city of Philadelphia, and SEPTA as additional insureds,” Loftus' papers said. “Jupiter's carrier, Nautilus, has agreed to accept the tender, but subject to a reservation of rights which is incorrect both factually and legally, and which is adamantly disputed by Loftus. It is Loftus's position that Nautilus owes Loftus coverage as an additional insured to the full extent of all available coverage (all layers) for all claims, causes of action and damages in this lawsuit.”

John Delany III of Delany McBride represents Loftus and said of the accord in an email, “It is a settlement that occurs when you have very good trial attorneys, and an excellent mediator involved.”

Counsel for Jupiter, Joseph Fowler of Fowler Hirtzel McNulty & Spaulding in Philadelphia, did not respond to a request for comment.

—P.J. D'Annunzio, of the Law Weekly