Worker falls off roof: Failure to insure employee: Leg fracture: Shoulder, back injuries: Loss of consortium: Settlement

Law Reporter, May 2002

Worker falls off roof. Failure to insure employee: Leg fracture: Shoulder, back injuries: Loss of consortium: Settlement.

Berghorst v. Doe Roofing, Inc., Cal., Orange County Super. Ct., No. 00CC13612, Aug. 13,2001.

Berghorst, 35, an employee of Doe Roofing, was repairing the roof at the residence of Doe Roofing's owner when he lost his footing and fell off the roof Berghorst suffered a right femur fracture, requiring interior rodding; bilateral frozen shoulders, necessitating surgery; stiffness and pain in his hands; a compression deformity of L-1; and protrusion of Ll-2 and L3-4. His medical expenses totaled about $145,800. Berghorst had been earning approximately $3,800 per month at the time of the fall but is now totally disabled.

Berghorst and his wife sued Doe Roofing and the owner, who claimed that Berghorst was not eligible for workers' comp because he was an officer/shareholder of Doe Roofing. Plaintiffs contended that Berghorst's status as an owner/shareholder was a sham, and that he was entitled to sue his employer as a wrongfully uninsured employee. Plaintiffs also alleged that the owner was personally liable for Berghorst's injuries as a homeowner retaining control and direction of the job. Berghorst also filed a workers' comp claim. Berghorst's wife claimed loss of consortium.

Defendants claimed that Berghorst was solely at fault for the incident because he did not use safety equipment. They also contended that Berghorst could not sue Doe Roofing because he was acting as an employee when he was injured.

The parties settled before trial for $1 million, the limits available under the owner's homeowner policy, plus dismissal of the contested workers' comp claim.

Plaintiffs' expert was Wayne Lancaster, economics, Fullerton, Cal.

Plaintiffs' Counsel

*Darren 0. Aitken, Santa Ana, Cal.