The family of a Nutter Fort, W. Virg. firefighter was awarded a $4.25 million settlement agreed to by the Harrison County Court System yesterday. The resolved lawsuit and details from the defendant’s bankruptcy also bring into question whether better vetting of a contractor could have prevented his death.
Michael Garrett was responding to a tower collapse on Feb. 1, 2014 when the collapse of a second nearby tower took his life.
The lives of two tower technicians employed by S&S Communication Specialists, Inc. of Oklahoma were also lost when the two SBA Communications towers collapsed in Clarksburg.
Attorney Douglas R. Miley of the Miley Legal Group of Clarksburg, representing the Garrett family, said that a portion of the settlement will be used by the family to fund a scholarship that was created in Michael Garrett’s name following his death.
“It will assist them in their constant fund-raising efforts to support the scholarship,” Miley informed Wireless Estimator this morning.
He also said that because this is the first time that a firefighter was killed in a telecom tragedy, it helped to provide a greater focus upon safety standards, and he believes that it was instrumental in sparking additional conversations on the need to have rigging plans.
It’s been alleged that S&S failed to ensure that temporary supports were utilized during the replacement of the diagonal bracing on a 340-foot guyed tower and they failed to comply with industry safety standards.
The Garrett family also sued SBA, the Summit Park Volunteer Fire Department and FDH Velocitel, the company that subcontracted the retrofitting project to S&S, but it is expected that those claims will be dismissed with prejudice when a judge signs the settlement agreement.
Although Miley said that confidentiality requirements of the resolution prevented him from discussing S&S’s insurers’ payments and coverages, according to documents obtained by Wireless Estimator from S&S’s 2016 Chapter 7 bankruptcy filing, Mid-Continent Casualty Co. of Oklahoma provided $1 million in general liability coverage.
An umbrella policy for $5 million was provided by Navigators Insurance Company.
However, SBA is also suing S&S for at least $1 million as well as FDH. SBA’s master subcontract agreement with FDH required general contractors to have a $4 million excess/umbrella policy, according to SBA’s lawsuit.
Miley said that he hopes an ancillary benefit of the settlement will be contractors vetting their subcontractors more carefully.
Although it wasn’t reported in any media, eight months before the Clarksburg fatalities, FDH under contract with SBA hired S&S to perform structural modifications on a guyed tower in Quanah, Tex., also resulting in a tower collapse.
Unbeknownst to FDH, according to a June 17, 2015 subrogation lawsuit against S&S and MEI Tower Service, LLC (MEI) by FDH’s insurer, Amerisure Mutual Insurance Co., on June 21, 2013, S&S was in breach of contract with FDH when it retained MEI without notification to FDH to, among other things, perform the modification.
The complaint states that MEI’s three-man crew over-tensioned new guy wires resulting in the tower’s collapse. Fortunately, there were no injuries, an event that would have been picked up by the press.
Amerisure, on behalf of FDH, paid for the damages after S&S did not honor the indemnification requirements in FDH’s contract.
According to the action, the damages amounted to $452,406.
In S&S President Randall Shankle’s bankruptcy filing, the company’s liabilities totaled $14,021,566, with assets at $317,323.
In addition to listing the Amerisure obligation, S&S had a contingent claim for Garrett at $6 million.
Two of his employees that died with estate tort claims were Kyle Kirkpatrick with an unknown amount and Terry Lee Richard at $4 million.
Also listed as a liability was an unknown amount to the estate of Justin Stamps, an S&S employee who died when he fell from a 325-foot guyed tower in Oregon County, Mo. on Sept. 14, 2009.
As a result of the Clarksburg fatalities, S&S was cited by OSHA for two Serious violations and paid $11,900 in fines. The 2009 fatality saw OSHA fine S&S $3,000 for two Serious violations.
Wrongful death lawsuits were filed in 2015 on behalf of the administrators of Kyle Kirkpatrick and Terry Richard, both of Oklahoma, who were both killed when the Clarksburg SBA tower collapsed, and personal injury lawsuits were filed on behalf of Randall McElhaney, of Texas, and Jerry Hill, of Oklahoma, who also sustained injuries in the collapse.
The lawsuits on behalf of Kirkpatrick, Richard, McElhaney and Hill name SBA Communications Corporation of Palm Beach Gardens, Fla. and FDH Velocitel of Springfield, Ill. as defendants.