The Fitzsimmons Law Firm has obtained a settlement on behalf of a coal truck driver killed in a surface hauling accident. In the underlying Complaint, the plaintiff asserted a deliberate intention claim pursuant to W.Va. Code §23-4-2(d)(2)(ii) alleging that the coal miner's employer failed to maintain the coal truck in a safe operating condition. The plaintiff also asserted a negligence claim against the mine operator alleging that it failed to properly ensure the safety of the subject truck before allowing it to leaving its premises.
The fatal accident occurred when the plaintiff's decedent lost his brakes while descending a steep haulage road. As the driver was descending the haulage road, he began to experience brake failure and reported over the CB that that he "lost his air" and "lost everything." As the coal truck continued down the haul road, it continued to gain speed and reached speeds estimated at 25-30 miles per hour. In an effort to minimize the risk of danger to other drivers and to himself, the plaintiff's decedent attempted to stop the coal truck by "ditching" it into a hillside. However, when he did so, the coal truck's left front wheel dropped into a drainage sump in the ditch line and struck the downhill end of the sump, causing the wheel to fold underneath the truck. The plaintiff's decedent was ejected from the truck and the cab rolled over onto him, thereby crushing and pinning his body against the ground. The plaintiff's decedent died as a result of the fatal injuries he sustained in the coal truck accident.
The plaintiff alleged that the trucking company exposed her decedent to unsafe working conditions by failing to maintain the coal truck in a safe operating condition. At the time of the crash, there were numerous defects with the brakes and braking system on both the truck and trailer. As a result of these defects, the trailer had essentially no effective braking capabilities, and according to the plaintiff's retained expert, the entire truck produced only 44% of the brake force that it should have had if the tractor-trailer was properly maintained. Additionally, the mechanics for the trucking company were manually adjusting the automatic slack adjusters on the subject truck which was in direct violation of the manufacturer's warnings and recommendations. The plaintiff claimed that these unsafe working conditions constituted violations of MSHA regulations, West Virginia mining laws and regulations, FMCSA regulations, and general industry standards.
The plaintiff also alleged that the mine operator breached a duty of care owed to the her decedent by failing to identify and correct the defective conditions on the subject truck before allowing it to leave its premises.
The plaintiff sought compensation for all damages recoverable under West Virginia's wrongful death statute together with pain and suffering of the decedent prior to his death.
The Fitzsimmons Law Firm is a West Virginia personal injury law firm that regularly represents
coal miners and other workers injured or killed on the job like in the present case. Typically, an employee cannot sue his employer in West Virginia for a
work related injury or death. However, there is an exception to this immunity if the employee can prove that the employer acted with "deliberate intention." This essentially requires the employee to prove that the employer knowingly
violated an MSHA or OSHA regulation or some other safety stature or standard. Our trial lawyers have successfully represented numerous clients in "deliberate intent" claims such as the claim discussed herein.