TheCoal Mining Accident Attorneys at the Fitzsimmons Law Firm recently obtained a
wrongful death settlement on behalf of a coal miner killed in a
coal truck accident. The plaintiff's decedent was killed as a result of critical injuries he sustained in a surface mining haulage accident when the coal truck he was operating lost its brakes causing him to lose control and overturn the truck. The plaintiff's decedent was only 32 years old at the time of his death.
The underlying Complaint asserted a "deliberate intention" claim against the miner's employer pursuant to W.Va. Code § 23-4-2(d)(2)(ii) who was an independent contractor of the mine operator. The Complaint also asserted claims for negligence and punitive damages against the coal mine operator and the owner of the truck. As pled in the Complaint, the employer intentionally exposed the plaintiff's decedent to known unsafe working conditions which presented a high degree of risk and strong probability of serious injury or death by failing to maintain the subject tractor-trailer in a safe operating condition. Specifically, at the time of the fatality, the following defective and unsafe conditions existed on the truck:
- Management failed to ensure that proper mechanical parts were utilized for its truck fleet in that the drive axle brake chambers on the No. 300 Kenworth did not have matching brake chambers. The left brake chamber was a type 20 while the right was a type 24. A mismatch in brake chamber sizes on the steering axle is considered an "out of service criterion" pursuant to the Commercial Vehicle Safety Alliance (CVSA) North American Standard Out-of Service Criteria. The mismatched steering axle brake chambers impaired the plaintiff's decedent's ability to stop and/or control the truck.
- Two of the six brake canisters on the trailer were beyond the manufacturer's stroke length for safe operating condition. According to Title 56, Series 3, Section 13.1 of the West Virginia Surface Mining Laws, this defect constitutes an "imminent danger."
- One of the six brake drums on the trailer brake was worn beyond the manufacturer's wear limits. On the left side of the intermediate trailer axle, the brake linings did not contact the drum when the brakes were applied. Additionally, a brake chamber defect caused limited stroke due to the pusher plate assembly not fully retracting into the spring brake portion. Two of the four bolts that held the cam shaft support tube in place were also missing which allowed the cam shaft to move approximately 1/16 of an inch when the brakes were applied. These defects resulted in no effective braking at this wheel. According to Title 56, Series 3, Section 13.1 of the West Virginia Surface Mining Laws, these defects constitute an "imminent danger."
- The right center trailer brake was not functioning prior to the accident. The pushrod travel for this brake was 2 ½ inches which exceeded the maximum allowable limit of 2 inches. Additionally, the axle brake drum had an inside diameter of 16.773 inches which is beyond the maximum allowable diameter stamped on the drum of 16.62 inches. According to Title 56, Series 3, Section 13.1 of the West Virginia Surface Mining Laws, this defect constitutes an "imminent danger."
- One of the tractor's brake chamber pushrod strokes was beyond the readjustment limit. The right front steering axle brake chamber stroke was 2 1/16 inches which exceeded the required limit of 1 ¾ inches.
As a result of these defects, the tractor/trailer had virtually no effective brake capabilities which caused the plaintiff's decedent to lose control of the Kenworth coal truck and crash. Contributing to the problem of the unsafe and defective condition of the truck was the employer's failure to utilize and require an adequate pre-operational inspection by its drivers. As a result of a prior fatality and citation, the employer changed its pre-trip inspection from a 10 to a 59 point inspection. However, the employer's new pre-trip did not require 2 inspectors to perform the inspection which is necessary to conduct a proper inspection. The employer's deficient pre-operational inspection program resulted in undetected safety defects on the subject truck on the date of the crash.
The Complaint further alleged that the mine operator and truck owner owed a duty of care to the plaintiff's decedent but breached this duty by failing to maintain the truck in a safe operating condition.
The subject lawsuit was filed pursuant to W.Va. Code § 23-4-2(d)(2)(ii) which is an exception to the workers' compensation exclusivity provision in West Virginia. Typically, an employee cannot sue his or her employer for a work related injury or death. However, if the employee can prove that the employer acted with "deliberate intention," the employee can maintain a civil claim against the employer. To prove "deliberate intention," the employee does not need to prove that the employer acted with the specific intent to cause harm. Rather, the employee need only prove essentially that the employer knowingly violated an OSHA or MSHA regulation, or some other written industry standard.
The Fitzsimmons Law Firm is a personal injury litigation firm headquarted in Wheeling, West Virginia. For over 35 years, the work injury lawyers at the Fitzsimmons Law Firm have successfully represented workers throughout West Virginia in numerous "deliberate intention" claims. We have represented workers injured and/or killed on the job in a variety of claims, including coal mining accidents, oil and gas accidents, explosions, pipeline accidents, gas drilling accidents, chemical and toxic exposure, construction accidents, and general workplace accidents. Through our representation, we have helped ensure a safer working environment for all West Virginia workers.