Attorney Waystack and co-counsel Attorney Gregory Howe of Newport, Vermont, successfully represented a widow and her two children in a wrongful death claim after their husband and father was killed in a horrific workplace accident. The deceased logging company employee (who worked as a shear operator) was run over by the driver of a low-bed truck while helping the truck driver install snow chains. This truck was owned by a separate corporation that was formed specifically for the purpose of providing transportation services for the logging company. At the time of the fatal accident, the truck was being used to transport logging machinery.
The defendant trucking company argued it was immune from liability under NH RSA 281-A:8, the workers compensation statute (the so-called “workers compensation bar”). This statue, in part, prevents a co-employee from bringing an action against another co-employee. Both the decedent and the truck driver were W-2 employees of the logging company at the time of the death. The defendant trucking company argued this co-employee status barred the lawsuit under this statue.
The defendant filed a summary judgment motion on this issue (and others) in the U.S. District Court of NH. Waystack Frizzell, on behalf of the widow and her children, argued that the truck driver was a borrowed servant of the trucking company at the time of the tragedy, and therefore was not a co-employee of the decedent at the time.
The Court denied the defendants’ summary judgment motion, holding that the issue of whether the truck driver was a borrowed servant of the trucking company at the time of the death was a material disputed fact that must be resolved by the jury. Specifically, the Court stated that the “plaintiffs marshal sufficient evidence for this question to be put to a jury.” The Court reaffirmed this ruling after the defendant filed a motion to reconsider.
Ultimately, the case settled at mediation for the full limit of the trucking company’s liability policy, which was for one million dollars. Additionally, the widow and her family received another one hundred-thousand-dollar settlement from the worker’s compensation carrier, and all subrogation liens by the worker’s compensation carrier were waived.