Losing plaintiff in Baltimore County Circuit Court gets $29K under

Daily Record, The (Baltimore), Aug 18, 2008 by Danny Jacobs

A series of complex agreements hashed out during a settlement conference allowed a Bel Air man to collect $29,050 from two companies for injuries he suffered in a home construction fall, even though a Baltimore County Circuit Court jury found the companies were not liable for the accident.

Gene Wheat was awarded $14,525 each from T&M Builders Inc. and subcontractor Nelson's Carpentry Inc. following a two-day trial and more than one hour of jury deliberation, lawyers in the case said. The amounts had been set during a July settlement conference that established a "high-low" payout agreement, the lawyers said.

The agreement, reached with the help of retired county Judge Frank E. Cicone, first established Wheat's suit would only be tried for liability. Wheat would be awarded $101,800 if liability was found and $29,050 if it was not, said Charles A. Arcodia, an Owings Mills solo practitioner who represented T&M Builders. If Wheat won, the $101,800 would have been paid by the liable party or evenly split if both parties were held liable, Arcodia said. If both parties were not found liable -- which is what happened -- they agreed to split the $29,050 owed to Wheat.

"There were so many different possible scenarios," Arcodia said. "It was a complicated payout structure."

Nelson's was represented by Jeffrey A. Wothers and Christopher Wolf. "I think it was commendable all of the attorneys were able to put this together," said Wothers, managing partner of Niles, Barton & Wilmer LLP in Baltimore. "We could go to trial knowing we weren't at risk for a runaway verdict."

The lawsuit sought $500,000 in damages.

The settlement agreement scenarios did not involve a third defendant, Safety Guardrail Systems Inc., which opted to not be included and was dismissed from the case by Judge Dana M. Levitz during the trial. Rodger O. Robertson of the Law Offices of Joseph M. Jagielski in Baltimore, who represented Safety Guardrail Systems, did not respond to a request for comment.

Wheat was a metal framer and drywall installer working on a new home in November 2004 in a Reisterstown subdivision, according to the complaint filed in October 2006. He was not an employee of any of the defendants.

Wheat's responsibilities were on the second floor, which was accessible only by a stairwell covered by floorboards and without safety rails, according to the complaint.

Walking down the stairwell, Wheat "lost his balance on an unsecured and unfastened floorboard and slipped and fell down to the next story of the home," the lawsuit alleged. Wheat suffered a fractured pelvis and other injuries, Wothers said.

Wheat's lawyer, Emanuel M. Levin of Emanuel M. Levin & Associates P.A. in Baltimore, was out of state for a family emergency and unavailable for comment.

Wheat was the only witness to the accident, and his recollections were clouded by a concussion he suffered in the fall, Arcodia said. In his cross-examination of Wheat, Arcodia attempted to prove Wheat did not know if he saw a problem with a floorboard prior to his fall or unfastened one by accident with his feet.

"He couldn't testify to what happened," Arcodia said.

Wothers said he and Wolf also pointed to a lack of evidence in the case, arguing Wheat could not meet the burden of proof for liability.

Gene Wheat v. T&M Builders Inc. et al

Court: Baltimore County Circuit

Proceedings: Jury trial

Judge: Dana M. Levitz

Outcome: Defense verdict; damages under high-low agreement

Dates: Incident: Nov. 10, 2004

Suit filed: Oct. 11, 2006

Disposition: Aug. 12, 2008

Plaintiffs' Attorney: Emanuel L. Levin of Emanuel L. Levin & Associates P.A.

Defense Attorneys: Charles A. Arcodia for T&M Builders; Christopher Wolf and Jeffrey A. Wothers of Niles, Barton & Wilmer LLP for Nelsons Carpentry Inc; Rodger O. Robertson of the Law Offices of Joseph M. Jagielski for Safety First Guardrail Systems Inc.

Charges: Negligence

Award: $29,050, half from T&M Builders, half from Nelson's Carpentry