© 2018 The Texas Lawbook.
By Natalie Posgate
(May 4) – A Houston appellate court has tossed out a $17 million jury negligence verdict against subsidiary of Baylor University’s general contractor for the death of a steel worker who drowned in 2014 while working on McLane football stadium.
In a ruling issued Thursday, a three-judge panel of the First Court of Appeals in Houston found that Austin Bridge & Road, LP should never have been sued by the family of the worker, Jose Dario Suarez, because Suarez was covered by a workers’ comp program implemented by Baylor and its contractors.
The court said the trial court erred when it dismissed an “exclusive-remedy” claim in a motion for summary judgment by Austin Bridge.
“This was a very sad accident, but the negligence claims never should have gone to a jury, and Mr. Saurez’s family did receive compensation through the insurance program,” Houston attorney Jessica Barger, a partner at Wright Close Barger who led the appeal for Austin Bridge, said in a statement.
In January 2014, Suarez was performing steel work on a bridge across the Brazos River as part of the stadium’s construction. Suarez and another man were working while tethered by safety belts to a barge-based “man-lift” when the lift toppled, carrying both men into the river. The other man was able to free himself from the safety belt, but Suarez drowned.
Suarez was employed by Derr & Isbell, the subcontractor that Austin Bridge hired to complete the steel work. A couple months after the accident, Suarez’s family sued Austin Bridge, Derr & Isbell, Austin Commercial (the general contractor of the whole McLane project) and several other entities. In the meantime, the family also filed worker’s comp claims with Derr & Isbell and began receiving payments.
The Suarez family alleged in their claims against Austin Bridge that it committed negligence and gross negligence that made it responsible for the accident.
Before the trial, Austin Bridge filed a motion for summary judgment claiming that the Suarez lawsuit was barred under the Texas Workers Compensation Act, and that the workers’ comp process is the sole remedy for claims against employers covered by workers’ compensation. Their “exclusive-remedy” defense was rejected.
When the jury returned its verdict in August 2016, it found Austin Bridge 100 percent liable for Mr. Suarez’s death. The jury awarded $15 million in damages to Suarez’s widow and three children and $2 million in punitive damages. Jurors also found Bob Beam, the Austin Bridge employee who was supervising the bridge construction, individually liable.
Austin Bridge appealed, and in a 59-page ruling the First Court of Appeals agreed with the contractor — ruling that the trial court erred when it rejected the Austin Bridge “exclusive-remedy” defense, and that no evidence was offered at trial to support the jury’s finding of gross negligence. The panel reversed the $17 million verdict and rendered judgment that the Suarezes take nothing.
“We conclude that Austin Bridge conclusively established that the Suarezes received death benefits pursuant to the workers’ compensation insurance policy provided to Derr & Isbell… pursuant to written agreements creating and implementing the Baylor Stadium OCIP (owner-controlled insurance program) to provide workers’ compensation insurance to all workers on the project,” the opinion says.
“Furthermore, there was no evidence that Beam had actual, subjective awareness of the risk involved on the day of Suarez’s accident and that he nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others,” the opinion says later. “There was no evidence that Beam knew about the peril to Suarez or someone similarly situated, and there is no evidence of any acts or omissions on Beam’s part indicating that he did not care about any risk to Suarez.”
Justice Evelyn Keyes wrote the opinion for a panel that included Justices Terry Jennings and Laura Carter Higley.
Assisting Barger on appeal was Wright Close Barger partner Bradley Snead and associate Brian Cathey.
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