John O'Brien Dec. 3, 2012, 4:36pm
CLARKSBURG – Two months after losing its motion for summary judgment, Century Steel Erectors settled a wrongful death case brought by the estate of a Tucker County man who died in a construction accident for $1 million.
U.S. District Judge Irene Keeley approved the proposed settlement on Nov. 27 in a case filed by the Estate of Kelly Nestor, who died April 9, 2009, as a result of injuries suffered at work five weeks earlier.
He was employed by Century Steel as an iron worker and was erecting structural steel members for a new building at the Armed Forces Readiness Center in Camp Dawson, which is in Preston County near Kingwood.
Nestor fell approximately 18 feet from a steel I-beam to the ground, fracturing his spine and sternum. He died at Ruby Memorial Hospital in Morgantown.
His widow Teresa filed a wrongful death lawsuit against the employer on behalf of his estate and three daughters in Preston County Circuit Court in 2011. It was removed to federal court in March 2011.
Franklin attorney Jeffrey Bowers represented Nestor’s estate on a contingent fee basis, as did Parsons law firm Cooper & Preston. They will receive a combined one-third of the settlement - $333,333 – as fees and another $85,056.67 as reimbursement for expenses.
Century Steel also must pay $400,000 to two insurance companies that will provide periodic payments to Teresa and her three daughters.
The complaint said Kelly Nestor died as a result of unsafe working conditions known to Century Steel, according to Keeley’s order.
Keeley wrote that the complaint alleged the specific unsafe working condition was in violation of one or more Occupational Safety and Health Administration regulations and carried a strong probability of serious injury or death.
Century Steel “strongly” contested the allegations, Keeley added.
Keeley had denied Century Steel’s motion for summary judgment on Sept. 4. In her decision, she wrote Nestor was seated on a beam while welding bar joists to a roof that did not have guardrails or any other installed fall protection system.
Two months before the fall, an OSHA inspector had driven past another Century Steel work site and videotaped ironworkers working without fall protection. OSHA cited the company, and Century Steel safety director Dan Grove subsequently issued a memorandum to all employees, including those at the Kingwood project, reminding them to use fall protection.
After the memorandum, a safety meeting was held at the Kingwood work site. Nestor was in attendance.
“During this safety meeting, however, (foreman Darryl) Beton also informed the crew that he was comfortable if the men moved about the beams using a method known as ‘cooning,’ in which a worker straddles a beam, placing a foot on the bottom flanges of either side of the beam,” Keeley wrote when she denied Century Steel’s summary judgment request.
“Importantly, cooning is not an acceptable method of fall protection under either OSHA regulations or Century Steel’s policy.”
Nestor was wearing a personal safety harness at the time of his accident, but it was not secured.
Beton said neither he nor any of his crew tied off their safety harnesses while working from the time of the safety meeting to Nestor’s fall.
Beton was suspended for one week for failing to enforce the company’s safety policy.
Century Steel claimed immunity under the West Virginia Workers’ Compensation Act. Employer immunity is lost if the plaintiff can prove five elements.
Century Steel said the plaintiff could not prove two of those elements - that it had actual knowledge of the existence of a specific unsafe working condition and of the high degree of risk associated with it, or that it intentionally exposed an employee to the working condition.
Century Steel said that even if it knew Nestor was working without fall protection, it did not know that presented a high degree of risk because he was an experienced ironworker who had never complained about safety standards.
“This argument belies both common sense and Century Steel’s own statements recognizing the risk contained in its internal memorandum circulated two weeks prior to Mr. Nestor’s fall,” Keeley wrote.
As to whether Century Steel intentionally exposed Nestor to the condition, the company said Beton never specifically directed Nestor to work without fall protection.
“Although it is true that a deliberate intent claim is not intended to punish an employer who is merely negligent, a reasonable juror could infer from the facts of this case that Beton made a conscious decision not to remedy a known dangerous condition,” Keeley wrote.
“At bottom, Beton’s intent is a disputed question of fact that must be determined by a jury based upon the evidence of his statements, actions and failures to act.”