Why Hire Rich Godshall for Your Construction Injury
Rich Godshall was raised blue collar by a family of union workers. His dad is a disabled union carpenter who was hurt at work because of a dangerous scaffold. Rich’s grandparents were union plumbers and laborers, his uncles are union steamfitters and drywallers, and his cousins are union painters.
Immediately out of law school, Rich worked defending general contractors, subcontractors, construction managers and architects in injury claims. He handled and resolved some of the largest Pennsylvania construction injury claims for these various contractors for almost a decade. During this time, Rich chaired the Construction Workplace Safety subcommittee for the largest research institute for defense attorneys and insurance companies. These positions enabled Rich to understand, first-hand, the interaction of various contractors on a job site, laws that these contractors use to protect themselves when a worker is injured, and OSHA safety rules that must be followed (but often are ignored).
For the last ten years, Rich completely changed his practice and now only represents people who are injured, including workers injured on a job site. His personal injury firm has grown to 10 lawyers, 40 employees, and 9 offices across Pennsylvania.
Rich’s family background and professional experience offer a unique perspective on what an injured worker and his family are going through. His family background provides a personal perspective on how a family feels when a loved one is injured at work, and his professional experience allows him to anticipate what those at fault will do to try to avoid responsibility.
Below is the link to Rich’s television commercial that discusses his dad’s workplace injury, and how it ultimately shaped the direction of his career:
Construction Jobsite Injuries Are Preventable
According to OSHA, one in ten construction workers are injured each year. Most injuries are preventable had the proper safety mechanisms and training been in place. Studies suggest that over 80% of construction job site injuries could have been prevented with the appropriate safety training and related protocols. With this, it is no surprise that statistics prove that construction companies spend more money on injury-related expenses compared to upfront money spent on safety training.
Rich and his team of construction accident attorneys in Pennsylvania are OSHA-certified. We understand the complexities of a workplace accident and have the experience and resources to respond.
What To Do if You Are Hurt on a Construction Site
If you are hurt on the job site, you should notify your shop steward or union representative as soon as possible. Depending on your injury, medical attention needs to be a priority. Whether it is you (if able) or a co-worker, take photographs or video of the accident scene, including any tools or equipment involved. A list of all witnesses is important as well.
Given the ever-changing nature of a construction site and the number of contractors that may be involved, retaining an attorney early in the process is recommended. While you are in the hospital getting better, those responsible for your injuries have access to the area where you were hurt and related information. An experienced construction injury attorney understands this and will respond immediately and aggressively. An experienced construction injury attorney in Pennsylvania will investigate your accident, interview witnesses, retain experts to assist in building your case, ensure all evidence is preserved and tested (if needed), and quickly identify the contractors potentially responsible for the dangerous job site condition that caused the accident.
With 10 lawyers, 40 employees and 9 offices across Pennsylvania, Rich and his team can get anywhere across the State within 24 hours of being retained.
Construction Accidents Are Complex
Construction sites are complex. There are multiple levels of contractors, owners, construction managers, and design professionals at every project. Hiring a Pennsylvania lawyer who understands the interplay between each entity at a job site is essential to ensuring the injured person and their family are protected after a construction accident.
Construction injury claims are not just about proving the injury. An experienced lawyer is familiar with the safety rules that govern the job site. Our team is experts in the law related to contract claims between contractors and other job site professionals, locating and triggering the right insurance policies, and anticipating and defeating the most common defenses used to deny or minimize the recovery for the injured person and his family.
Below is a graph that outlines some of the most important concepts that apply to construction injury claims:
ALLOCATION OF LOSS
Courses of Action occurring BEFORE June 28, 2011 – pure Joint and Several Liability; a defendant that is found 1% at fault may be called upon to satisfy the entire verdict, minus plaintiff’s comparative fault.
Causes of Action occurring AFTER June 28, 2011 – modified Joint and Several Liability; where recovery is permitted against more than one defendant, each defendant is liable only for that proportion of the verdict for which it was found to be casually negligent, EXPECT where there is allocation of 60% or more against any one defendant. In this instance (coined the Fair Share Act), plaintiff may recover the entire verdict from the defendant found 60% or more at fault, minus plaintiff’s comparative fault. There are certain discrete exceptions not discussed herein.
Pennsylvania’s transition to a modified Joint and Several jurisdiction is noteworthy. It negates the need for a well financed (or insured) “peripheral” defendant from contributing a larger settlement share simply to avoid possibly funding an entire verdict due to fellow insolvent or less insured, albeit possibly more liable, co-defendants.
CONTRIBUTION RIGHTS
Where a defendant has been held jointly and severally liable and discharges by payment more than its proportionate share of liability, that defendant is entitled to recover contribution from defendants who paid less than their proportionate share. Further, any defendant may recover from any other entity all, or a portion of, the damages assessed against that defendant pursuant to the terms of a contract.
It should be noted that a jury will not be permitted to apportion liability against plaintiff’s employer in worksite injury cases. Further, a settling defendant, in multi-party litigation is not permitted to seek contribution, absent contractual issues. In multi-party litigation is not permitted to seek contribution, absent contractual issues. In multi-party litigation, when one or more defendants settle independently with the plaintiff via joint tortfeasor release(s), the jury will nonetheless be permitted to allocate liability against those settling defendant(s). Any remaining non-settling defendant(s) also assessed liability will gain the benefit of the percentage of fault attributed to the settling defendant(s), and not be bound by joint and several rules.
INDEMNIFICATION
Pennsylvania permits indemnification for a party’s “own” negligence, but the relevant provision must be clear and unequivocal. General terms of import such as “any and all negligence” or “any nature whatsoever” are insufficient to have a third party indemnify for another’s “own” negligence.
Ruzzi v. Butler Petroleum, 588 A. 2d 1 (Pa. 1991); Greer v. City of Philadelphia, 795 A. 2d 376 (Pa. 2002); Bester v. Essex Crane Corp., 619 A.2d 204 (Pa. Super. 1993)
Pennsylvania indemnification law is favorable to superior contracting parties, i.e. owners and general contractors as opposed to subcontractors, but specific terminology must be utilized before the benefit is gained. For example, assuming the injured party is an employee of the indemnitor, the relevant indemnification provision must include reference that the indemnification provision includes injury to employees of the indemnitor, in addition to the “own” negligence standard listed above.
VERTICAL/HORIZONTAL IMMUNITY
Under Pennsylvania law, the general contractor, under limited circumstances, may be considered statutory employer of a subcontractor’s injured employee, and thus gain benefit of Worker’s Compensation immunity, including third party protections. This has been coined the “statutory employer defense.”
McDonald v. Levinson Steel, Co., 153 A. 424 (Pa. 1930); Pennsylvania Worker’s Compensation Act , § § 203, 302 (b)
The purpose behind the statutory employer defense is to provide an injured party with a secondary level of available worker’s compensation benefits if his primary employer becomes insolvent or is not appropriately insured. Notwithstanding its seemingly legitimate purpose, perfection of the statutory employer defense is difficult. The following five elements must be met: (1) the general contractor is under contract with the owner of the project; (2) the general contractor occupies or controls the premises; (3) the general contractor subcontracts with another entity; (4) part of the subcontracted work is part of the general contractor’s regular business; and (5) the injured party was an employee of the subcontractor.
JURISDICTIONAL CLIMATE
County specific, but overall becoming more moderate; notwithstanding, juries in Pennsylvania generally favor an injured worker.
Understandably, Philadelphia County receives the most discussion with this topic, and rightfully so, as it has historically been listed as one of the worst defense counties in the country over the last few decades. The reason for this is lack of meaningful judicial oversight, a largely un/low-educated jury pool, and pure joint and several law. With that said, Philadelphia County does implement aggressive case deadlines that keep cases moving towards resolution. As for surrounding counties, Montgomery County, a suburb just outside Philadelphia County, is the polar opposite. It lacks any meaningful case deadlines, but provides conservative/well-educated juries. Other noteworthy plaintiff friendly jurisdictions include Luzerne, Lackawanna, and Allegheny. The unmentioned counties often have conservative juries, but often lack sophisticated judges capable of managing complex cases.
COMPARATIVE NEGLIGENCE
In negligence actions, the jury is permitted to allocate fault against the plaintiff for his actions in causing the relevant event. Plaintiff’s recovery is reduced by the percentage of his assigned fault up to, and including, 50%. If, however, a plaintiff is found 51% or more at fault, that plaintiff is barred from any recovery.
Basic comparative negligence principles remain unchanged even with implementation of the Fair Share Act. An important point to note when discussing liability allocation is that a jury cannot assess liability against non-parties, including plaintiff’s employer. Further, assumption of risk and contributory negligence are not independent defenses in an ordinary negligence case.
OFFSETS
Pennsylvania law favors joint tortfeasor releases in multi-party construction claims.
Charles v. Giant Eagle Markets, 522 A.2d 1 (Pa. 1987); refer to “contribution rights” for recourse available to non-settling defendant(s) where certain defendants settle prior to trial.
Assuming the defendant that entered into the joint tortfeasor release admits liability and its status as a joint tortfeasor, its presence at trial is not necessary. Notwithstanding its non-presence, the non-settling defendant is not permitted to inform the jury of the settlement or the settlement amount, but can present a case against the settling defendant. Note that a private settlement in a multi-party situation negates the settling defendant’s ability to seek contribution, absent contractual issues.
STRICT LIABILITY
Strict liability is not permitted in construction cases, absent on allegation of product defect. To be clear, owners, contractors, and subcontractors involved in the means and methods of a construction project are primarily sued under a negligence theory of recovery, not strict product liability.
402A of the Restatement (Second) of Torts; Brandimarti v. Caterpillar Tractor Co,. 527 A.2d 134 (Pa. Super. 1987).
Common law indemnity applies to distributors and sellers of a defective product, absent an independent theory of negligence.
STATUE OF LIMITATION
Negligence claims (including wrongful death) – 2 years from date of injury
Product Liability – 2 years from date of injury
Contracts – 4 years from the breach, inclusive of UCC sale of goods actions
Statute of Repose – 12 from completion of construction
Pennsylvania Statute of Limitations’ law is straightforward; it does not permit “relation back” argument or the meaning of “John Does” or fictitious names to toll the Statute as to unidentified parties. In the construction context, assuming plaintiff sues a general contractor on the eve of the Statute and that general contractor then joins the arguably responsible subcontractors after the Statute expires, the plaintiff has no direct claims against the joined subcontractors, and the general contractor bears the burden of proof as to those joined parties.
COLLATERAL SOURCE RULE
Payments from a collateral source shall not diminish the damages otherwise recoverable from the tortfeasor. The principle behind the collateral source rule is that public policy would prefer the wronged plaintiff to receive a potential windfall, rather than for a tortfeasor to be relieved for the wrong.
Johnson v. Beane, 664 A.2d 96 (Pa. 1995); Moorhead v. Crozer Chester Medical Center, 765 A.2d 786 (Pa. 2001), overturned on other grounds.
The collateral source rule is a negative for the defendant. To be clear, the defendant will not garner an offset or verdict reduction from any privately negotiated benefit obtained/held by the plaintiff, i.e. social security or workplace disability benefits. The law, however, restricts reimbursement of medical bills to the amount paid or accepted by the provider, not the amount billed.
NEW JERSEY
ALLOCATION OF LOSS
The New Jersey Joint Tortfeasor Act allows a plaintiff to recover the full amount of damages from any defendant determined to be 60% or more responsible for the total damages. In the alternative, any party found to be less than 60% responsible for the total damages is only responsible for the percentage of damages attributable to that party. In the event a party is required to pay more than its share of the damages award in accordance with the Joint Tortfeasors Act, it may seek contribution from the other joint tortfeasors for the excess over its pro rata share.
New Jersey law permits a peripheral defendant to aggressively defend its case without fear of contributing monies above its allocated exposure, even in cases where the primary defendant may be un/under-insured.
CONTRIBUTION RIGHTS
Where a defendant has been held jointly and severally liable and discharges by payment more than its proportionate share of the total liability, that defendant is entitled to recover contribution from defendants who have paid less than their proportionate share of the total liability, that defendant is entitled to recover contribution from defendants who have paid less than their proportionate share. Further, any defendant may recover from any other person all, or a portion of, the damages assessed that defendant pursuant to terms of a contractual agreement.
It should be noted that a jury will not be permitted to apportion liability against plaintiff’s employer in worksite injury cases or other non-parties.
A settling defendant in multi-party litigation is not permitted to seek contribution. Further, the jury will be permitted to assess fault against any settling defendant, and any non-settling defendant, and any non-settling defendant found at fault will gain the benefit of the percentage of fault attributed to the settling defendant.
INDEMNIFICATION
New Jersey permits indemnification for a party’s “own” negligence, but the relevant provision must be expressed in unequivocal terms. Further, an employer may be forced to indemnify another contractor for injury to the employer’s employee under the same standard; there is no requirement that the indemnification provision discuss employer immunity in instances where the injured party is an employee of the indemnitor.
Ramos v. Browning Ferris Industries, 510 A.2d 1152 (N.J. 1986); Azurak v. Corporate Property Investors, 814 A.2d 600 (N.J. 2003)
A party may gain indemnification protections for its own negligence, but the relevant contract will be strictly construed and must include “unequivocal” verbiage. It is a strict standard, but one that can be met through careful contract drafting. We are starting to see insureds, as indemnification is the purest and most effective risk transfer mechanism.
VERTICAL/HORIZONTAL IMMUNITY
New Jersey permits a contractor other than the plaintiff’s employer to gain immunity protection under limited circumstances; the defense has been coined “special employees.”
Volb v. G.E. Capital Corp., 139 NJ. 110 (1995); Antheunisse v. Tiffany & Co., 229 N.J. Super. 399 (App. Div. 1988)
Five elements must be met before a second contractor is “immune” from third party liability: (1) the employee has made an express or implied contract of hire with the special employer; (2) the employee is performing work that is essentially the work; (4) the special employer can control can control the details of the work; (4) the special employer pays the wages of the borrowed employee; and (5) the special employer has the right to hire, fire or recall the borrowed employee.
JURISDICTIONAL CLIMATE
New Jersey is a vastly moderate jurisdiction with certain exceptions; namely Camden County and Middlesex County, both of which are historically liberal/plaintiff friendly.
New Jersey Courts proactively manage complex cases with uniform State Rules that permit some ability to gauge strategic success through motion practice.
COMPARATIVE NEGLIGENCE
In ordinary negligence actions, the jury is permitted to allocate fault against the plaintiff for his actions in causing the relevant event. Plaintiff’s recovery is reduced by the percentage of his assigned fault up to, and including, 50%. If, however, a plaintiff is barred from any recovery. Assumption of risk is not a complete defense, but simply argued as evidence of comparative negligence.
In multi-party litigation, plaintiffs’ lawyers are permitted to recommend to the jury specific percentages they contend should be allocated to particular defendants, although the Court will not advise the jury of the impact of finding a defendant less or more than 60 percent at fault. A jury is told the significance of a 51% or more allocation of fault against a plaintiff.
OFFSETS
New Jersey law favors joint tortfeasor releases in multi-party construction claims.
Cockerline v. Menendez, 411 N.J. Super 596, 623 (App. Div. 2010)
It should be noted that a non-settling defendant must prove the case against any settling defendant, thus in multi-party litigation, the scope of any non-settling defendant’s procured expert opinions is paramount.
STRICT LIABILITY
Strict liability is not permitted in construction cases, absent an allegation of product defect. To be clear, owners, contractors, and subcontractors involved in the means and methods of a construction project can be sued primarily under a negligence theory of recovery, not strict product liability.
STATUTE OF LIMITATION
Negligence claims (including wrongful death) – 2 years from date of injury
Product Liability – 2 years from date of injury
Contracts – 6 years from the breach/UCC relates sales – 4 years
Statute of Repose – 10 years from completion of construction
New Jersey permits plaintiffs to include fictitious names in situations where a plaintiff is aware of the cause of action, but does not know a defendant’s particular identity. The naming of this “fictitious” entity tolls the Statute and allows plaintiff to name that entity after Statute expiration, assuming plaintiff was diligence in his/her investigation. In the construction context, this practice is prevalent. For example, plaintiffs name contractors they have identified through preliminary investigation in addition to “John Does,” and then during the pendency of discovery when additional contractors are identified, the court permits plaintiffs to amend their pleading from a “relation back” standpoint. New Jersey Courts permit liberal fictitious name/additional defendant “relation back” joinder practice.
COLLATERAL SOURCE RULE
If a plaintiff receives or is entitled to receive benefits for the injuries allegedly incurred from any other source other than a joint tortfeasor, the benefits, other than workers’ compensation benefits or the proceeds of a life insurance policy, shall be disclosed to the court. The amount of benefits previously received that duplicates any benefits contained in the award shall be deducted from any award recovered by the plaintiff, less any premiums paid to an insurer directly by the plaintiff. Any party to the action is permitted to introduce evidence regarding “collateral” benefits held by the plaintiff.
N.J.S.A. 2A:15-97; Cockerline v. Menendez 411 N.J. Super 596, 623 (App. Div. 2010)
New Jersey statute abrogates the common law collateral source rule and is intended to prohibit a plaintiff from receiving a double recovery. The benefits intended to be covered by the statute include benefits from health insurance policies, employment contracts, statutes such as the Federal Employees Liability Act, gratuities, social security, welfare, and certain pension plans. To be clear, an injured plaintiff’s receipt of social security benefits will reduce his “boardable” economic loss figures.
LETTER
July 25, 2014
Segal Mccambridge Singer & Mahoney
1818 Market Street -Suite 2600
Philadelphia, PA 19103
Attn: Mr. Rich Godshall
Ref: Jones Case
On behalf of Central Metals, Inc. please permit me to extend our sincere appreciation for your work and due diligence on the Jones Case. Your knowledge, expertise and professionalism were often a motivation and I can’t express strongly enough my appreciation for your consistent willingness to share your many capabilities with me. Through your expertise I gained a great education in the legal process and as the case developed, I never felt misinformed about anything. Your clear explanations on extremely complex matters always made sense. I have to add that your statements always seemed well placed and timely and I believe for that reason you became an integral player in the mediation continuing forward to a conclusion. Your ability to say so much with so few words greatly aided in the path to that conclusion.
Rich, on a more personal note, I can’t express enough my appreciation for your kindness, the respect I felt from you and your willingness to include me at every phase of the evolution of the process.
At times I found the process exasperating but your words of wisdom and management of the circumstances were always reassuring. I walk away with great respect for your ability and admiration for your composed demeanor under significant pressure.
Please permit me to also express my sincere thanks for th.e assistance of both Greg McNamee and Susan Gross. Their help was always thorough, on time and on target. Please extend my gratitude to them.
If you have any questions do not hesitate to reach out to me!
Very Truly Yours,
Robert J. Russo
Senior Vice President
cc.Walther Swayze Ill
Identifying Those Responsible for Your Injuries
In many states like Pennsylvania, workers injured on the job can apply for workers’ compensation benefits. This no-fault form of insurance allows you to receive compensation – even if no one else is responsible for your injury. This benefit will cover medical bills and some lost wages while you are unable to work.
When a worker is injured because someone else did something wrong on a construction site, an attorney in Pennsylvania can also hold the responsible party accountable in a separate lawsuit. Here are some examples of other workplace companies that can be sued if a worker is injured or killed on a job site:
General contractor
Jobsite owners
Construction manager or other owner representatives
Safety and scheduling consultants
Design specialists: architects and engineers
Subcontractors involved with the scope(s) of work at issue
Manufacturers and suppliers of equipment and tools
Categories of Damages
In a construction injury claim, the injured worker and his/her family can sue for both economic and non-economic damages. Here is a list of these categories:
Lost wages for time missed from work during the lawsuit
Future wage impairment for time that may be missed from work in the future, even after the lawsuit is resolved
Money to repay medical expenses incurred to treat your injuries
Money to repay future medical expenses that may be needed in the future to treat your injuries, even after the lawsuit is resolved
Pain and suffering for the injury worker (past and future)
Pain and suffering for the spouse of the injured worker (past and future)
Additional damages if the injury resulted in death
Common Construction Job Site Injuries
Falls from height are the leading cause of injury whether it be falling from an overhead platform, elevated workstations, or holes in the floor. Struck by, caught between, and electrocutions are the other leading causes of injury on a job site. These four causes of injury make up OSHA’s “Fatal Four.”
Other common construction injuries involve cranes, ladders, forklifts, scaffolding, burns and fires, faulty equipment, lack of fall protection, slips and trips, and elevators.
The sooner you contact us, the more evidence our Pennsylvania construction accident lawyers will be able to gather before it disappears.