Moon v. Catalyst Energy

$1,530,000 Settlement

Date of Settlement:

March 12.

Court and Case Number:  

Allegheny County Court of Common Pleas, No. GD-16-023830.

Judge:

Michael A. Della Vecchia.

Type of Action: 

Motor vehicle.

Injuries: 

Back and skull fracture, brain damage, death.

Plaintiffs Counsel: 

Alan H. Perer, The Law Firm of Swensen & Perer.

Defense Counsel: 

Mark R. Lane, Dell, Moser, Lane & Loughney, Pittsburgh; Michael E. Lang; Margolis Edelstein, Beaver; Alan T. Silko and Robert C. Bechtell Jr., Silko & Associates, Bridgeville.

Plaintiffs Experts:

Todd M. Luckasevic, forensic pathology, Bridgeville; David J. Bizzak, engineering; Homestead; Ronald W. Eck, highway/street; Morgantown, West Virginia.

Defense Experts:

Wayne K. Ross, forensic pathology, Lancaster; Joseph M. Fiocco, traffic, Trevose; Robert T. Lynch, accident reconstruction, Philadelphia; Steven M. Pustay, accident reconstruction, Canonsburg; Steven M. Schorr, accident reconstruction, Abington.

Comment:

On Oct. 4, 2016, plaintiff's decedent William Moon Jr., 55, a shipping supervisor, was motorcycling east on Bredinsburg Road, in Oil City. His motorcycle struck the rear end of a skid-steer loader. Moon fell off of the motorcycle, and he suffered a fatal injury.

Moon's widow, acting as administrator of her husband's estate, sued the skid-steer loader's driver, Michael Brown; Brown's employer, Clint Brown & Sons Inc.; the owner of an adjacent property that Brown was cleaning at the time of the accident, Seneca Resources Corp.; and the company that commissioned the cleaning, Catalyst Energy Inc. The lawsuit alleged that Brown was negligent in his operation of the skid-steer loader. The lawsuit further alleged that the remaining defendants were vicariously liable for Brown's actions.

Plaintiffs' counsel contended that Brown lacked the experience to perform the work he had been asked to perform. He claimed that Brown's sweeping created a large, dark cloud of dust that completely blocked Moon's view of the skid-steer loader. He argued that Catalyst violated safety regulations by sending Brown to operate a large piece of machinery with a road sweeper to clean a buildup of mud on Bredinsburg Road. He contended that statutes and regulations regarding traffic control were violated because the defendants failed to implement flag people, warning signs and flashing lights on the slow-moving skid-steer loader to alert motorists. In a report, the estate's expert engineer opined that the defendants' failure to erect temporary traffic control was the proximate cause of the accident and that, if not for the lack of traffic control, the accident would not have occurred.

In a report, the estate's accident-reconstruction expert calculated Moon's speed at 32 to 35 mph. The expert determined that Catalyst had an obligation to know and implement temporary traffic controls. According to the expert, the company had an obligation to make sure that any contractor it hired to perform roadway maintenance knew of the traffic-control requirements. The expert concluded that Catalyst hired a contractor without ensuring that these safety requirements were known or followed by the contractor it hired.

Counsel of Brown and Clint Brown & Sons Inc. argued that the skid-steer loader was on the public highway for less than 15 minutes, thereby categorizing the work as short duration. He contended that, pursuant to applicable Pennsylvania Department of Transportation publications regarding traffic control, and to the fact that Brown was conducting a street-sweeping event, no traffic-control devices were required.

Brown and Clint Brown & Sons Inc.'s accident-reconstruction experts submitted reports in which they opined that Moon had sufficient time and distance to perceive the skid-steer loader and dust cloud and to react them by gradual brake application, thus avoiding the impact altogether. Regardless of the presence of lights and/or traffic-control devices, the size and density of the skid-steer loader and dust cloud alone was visible for sufficient time and distance to afford Moon the time and distance to slow and stop his motorcycle before reaching the point of impact, according to the experts.

Catalyst maintained that it had committed no wrongdoing. Its accident-reconstruction expert submitted a report in which he opined that the proximate cause of the crash was Moon's failure to slow down in a reduced-visibility environment. The expert contended that the dust cloud over both travel lanes was a clear and obvious restriction to visibility as indicated by an eyewitness, who was an oncoming motorist. According to the expert, the unobstructed line-of-sight distance in the area provided Moon more than twice as much time and distance to observe and react to the local dust cloud surrounding the skid steer as it was sweeping the road surface. The expert concluded that Moon had been driving too fast for the road conditions; 44 mph in a 45-mph zone.

Catalyst's traffic-engineering expert submitted a report in which he opined that the sweeping operation was not required to have advanced-warning traffic controls because it was exempt from requirements of Pennsylvania Department of Transportation publications regarding traffic control.

Moon was airlifted to a hospital and was pronounced dead shortly thereafter. He was diagnosed with significant blunt force trauma to his head, neck and trunk; a laceration of his lower frontal scalp; depressed and comminuted fractures of the frontal bone of his skull, with extension to the orbital bones and anterior base of the skull; lacerations and contusions of the frontal lobes of his brain; fractures of the T2 vertebra and pelvis; and multi-compartmental intracranial hemorrhages of his brain, including subdural, subarachnoid, intra-parenchymal and intraventricular hemorrhages.

Moon was survived by his wife, two children and two grandchildren.

In a report, the estate's expert pathologist opined that Moon experienced at least a few minutes of pain and suffering. The expert based this on the fact that Moon, at the accident scene, acknowledged those who rendered aid to him by attempting to answer their questions, but he could do so only by mouthing words and moving his fingers.

The estate sought to recover damages under wrongful death and survival acts.

The defense's expert pathologist submitted a report in which he opined that Moon suffered no conscious pain and suffering. According to the expert, Moon sustained catastrophic brain injuries that rendered him immediately unresponsive and unconscious, and he remained unconscious for the rest of his life. Due to the catastrophic injuries, the conscious areas of the brain were rendered immediately incapacitated, and Moon was unable to spontaneously respond after the trauma, the expert concluded.

The parties negotiated two pretrial settlements, for a total amount of $1.53 million. Seneca Resources, which was self-insured, agreed to pay $30,000. In a subsequent settlement, mediated by Judge Michael Della Vecchia, Catalyst Energy's insurer agreed to pay $815,000, from a policy that provided a substantially greater amount of coverage, and Clint Brown & Sons Inc.'s insurer agreed to pay $685,000, from a policy that provided a substantially greater amount of coverage.

This report is based on information that was provided by plaintiff's counsel and counsel of Brown, Clint Brown & Sons Inc., and Seneca Resources. Catalyst Energy's counsel did not respond to the reporter's phone calls.

—This report first appeared in VerdictSearch, an ALM publication