SEPTA Penn Medicine station
PHILADELPHIA – A worker injured when a SEPTA bus hit him can keep his multimillion-dollar verdict, a Pennsylvania appeals court has ruled in deciding the company that hired his employer for a job is not technically also his employer, though both companies are owned by the same person.
Had Independence Construction Corporation been found to be Jesse Hernandez’s “statutory employer,” Hernandez would have had to go through the Workers’ Compensation system rather than suing ICC. The Superior Court ruled against that argument Oct. 28, affirming a $7.3 million Philadelphia verdict.
ICC was found 70% at fault, above the threshold for joint and several liability that would cause it to pay the entire verdict. SEPTA, which settled, was blamed for 29% of Hernandez’s injuries, while he was found 1% liable for them.
Hernandez was employed by Minority Services Inc., which was subcontracted by ICC to dig trenches and place pipes underground for electrical wires along a SEPTA train line. The work was within approximately four feet of the tracks, and Hernandez suffered a traumatic brain injury that forced a medically induced coma when he was struck. The resulting lawsuit alleged SEPTA and ICC failed to ensure his workplace was safe.
There are provisions in Workers’ Comp law in which the employee of a subcontractor can be found to be working for the company that hired it. Digging a trench, ICC argued, is excavation work under a Workers’ Comp statute that would qualify it as Hernandez’s employer.
Hernandez’s lawyers said digging the trench “was ancillary” to the job of laying conduit, and the holes in the ground were refilled once wires were laid. They compared it to digging holes for fenceposts and warned that many injury cases would be blocked if digging were considered excavating.
“While MSI’s trenching work included the digging and removal of soil, such digging was incidental to the primary purpose of the work, which was to lay conduit pipe,” Judge Timika Lane wrote.
“MSI was not employed merely to remove or excavate soil, but instead to lay conduit pipe.”
Pennsylvania courts have only considered the excavation statute for accidents at natural gas sites and timber-harvesting operations, Lane added.
ICC has worked with SEPTA for nearly 30 years and in 2012 started providing trenching and watchperson services. Those functions were “always” subcontracted to MSI, Lane said, while ICC continued providing janitorial and landscaping services.
ICC was a project manager that never performed trenching, which was a “regular and recurrent part of MSI’s business,” Lane wrote.
