TX Court Overturns $43M Settlement; Says Injuries Covered Under Workers’ Comp


By Liz Carey

Austin, TX (WorkersCompensation.com) – A Texas appeals court reversed a $43 million injury award for a man whose leg was amputated in an industrial accident, saying his injuries were covered under workers’ compensation.

In 2013, Tyler Lee was a superintendent for a general contractor on a construction site in Houston. Berkel & Company Contractors Inc. was one of the subcontractors on the site. According to court records, one of Berkel’s superintendents, Chris Miller, ordered crane operators to maneuver to free stuck equipment, despite safety concerns from others on the site. 

Court records show that as a result of the maneuvers, the crane snapped in half and crashed. Leads on the crane then struck Lee, who was behind a safety barricade, striking him in the leg, crushing it and severing it below the knee.

While Lee received workers’ compensation through his employer, New Jersey-based Skanska USA Building Inc., he sued Berkel in Texas for negligence, gross negligence and intentional injury. In 2015, a jury ruled in Lee’s favor and awarded him $35 million in actual damages and $8.5 million in damages for gross negligence on Berkel’s part.

Berkel appealed to the 14th Court of Appeals in Houston.

The appeals court overturned the decision and reversed the award, finding that workers’ compensation was Lee’s exclusive remedy. According to the three-judge panel, because Skanska had agreed to provide workers’ compensation insurance to all of its subcontractors and their employees, of which Berkel was a subcontractor, Berkel was Skanska’s statutory employee and Lee was Berkel’s statutory co-employee. The court ruled that Miller was operating as a vice principal for Berkel and that liability for his actions lay with Berkel, unless it could be proven that Miller had “substantial certainty” his action would cause injury. 

The “evidence easily supports a finding that Miller was reckless, but it does not support a finding that Miller was substantially certain that Lee would be a particular victim of Miller’s conduct. To make that greater finding, there must have been some evidence that Miller at least knew of Lee’s location. … But there is none,” the panel said in its ruling.

Thomas C. Wright, a partner with Wright & Close, LLP, that represented Berkel, said the decision clarifies what allows an injured worker to be exempted from the Texas Workers’ Compensation Act, according to BusinessInsurance.com.

“In its very thorough opinion, the appellate court found that ‘intentional injury’ requires an intent to injure a particular person or a small class of people, not just a general knowledge that an activity is dangerous,” Wright said, according to BusinessInsurance.com. “Many plaintiffs attempt this way around the Workers’ Compensation Act, and this case should bring some clarity to the law."

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