Paving foreman struck by transfer truck
Personal Injury
Kern County Superior Court

This is an industrial injury case brought by Armando Andrade, now 49 years old, who was severely and permanently injured on July 31, 2017 while in the course and scope of his employment for Pave Tech, Inc. as a paving foreman. Armando was knocked to the pavement and run over by an asphalt transfer vehicle backing up within the roadway closure. The transfer truck was owned by defendant South Valley Transport (“SVT”) and operated by its employee and co-defendant, Steven Dalke (“Dalke”). SVT was one of several sub-haulers hired by the hauler, co-defendant Triple-E Trucking (“Triple-E”). Also involved was the workers compensation carrier for Pave Tech, Inc. through its claims administrator, Gallagher Bassett.

Plaintiffs contend that Dalke was negligent in operating his truck and striking Plaintiff because ( 1) Dalke failed to maintain a proper lookout for pedestrian workers in the area, considering that he never saw Plaintiff before the accident; and (2) Dalke's back up alarm did not sound so as to warn Armando that the truck was approaching from behind Plaintiff and struck Plaintiff. Plaintiff also contends that the backup alarm on Dalke's truck was not activated because he was coasting his vehicle in neutral gear and the backup alarm is only triggered in reverse gear. Dalke denied traveling in neutral at the time of the accident. There was conflicting witness evidence as to whether Dalke's backup alarm was sounding at the time of the accident.

Plaintiffs contended that Triple-E is vicariously liable for the negligence of its retained independent contractor, SVT and its employee-driver Dalke, under a non-delegable duty of care doctrine. Such contention is based on the holding in California that a highway motor carrier cannot delegate the duty to safely operate vehicles to an independent contractor. Gamboa v. Conti Trucking Inc. (1993) 19 Cal.App.4th 663 [ motor carrier held liable to members of the public for harm caused by the negligence of the carrier's independent contractor sub-hauler]. Therefore, Triple E may only be held vicariously liable to Plaintiffs if Dalke is found to have negligently caused the accident.

Mr. Andrade asserts that he did not know that Dalke was backing his dump truck in the number two lane where Mr. Andrade was walking. Plaintiffs contended that the number two lane in which Mr. Andrade was walking at the moment of the accident was the "safe lane" in which to walk because the asphalt dump trucks were delivering their loads by traveling in reverse only on the shoulder being paved; not within the number two lane. Mr. Andrade stated that, after delivering their respective loads of asphalt, the dump trucks would drive away eastbound from the shuttle buggy by maneuvering from the right shoulder into the number two eastbound lane. Therefore, Mr. Andrade contended that he had no reason to anticipate or look out for dump trucks approaching him from behind while he walked within the closed number two lane, although he admitted that the dump trucks did have occasion to straddle partially within the number two lane and the shoulder while backing up. Mr. Andrade was struck as he was within five feet of the fog line separating the number two lane and the shoulder.

Mr. Andrade was the only person who would testify that the trucks backing up to the shuttle buggy traveled solely on the shoulder being paved and not in the number two lane. Pave Tech's job superintendent, Ezequiel Hernandez, testified that the trucks backed up to the shuttle buggy that day using the number two lane and drove away using the right shoulder.

Plaintiff stated that he was walking within the number two lane for 15 minutes before he was struck from behind, and admitted that he never looked back during this time period. According to Pave Tech safety director, Kevin McWalters, Mr. Andrade failed to follow his employer's safety rules (which Mr. Andrade admits that he received and read), including: [1] "Watch out for the safety and well-being of co-workers as well as yourself. [2] Never take it for granted that Equipment Operators can see you. Keep in eye contact with operator. [Mr. McWalters agreed that the accident dump truck is "equipment" for purposes of this rule.] [3] Keep clear of moving equipment. Do not depend on horns or warning signals, as general noise may make it difficult to hear them. [ 4] Be aware of moving vehicles. And [ 5] Keep yourself and equipment a safe distance from traffic." According to Mr. McWalters, while visiting Mr. Andrade in the hospital following the accident, Mr. Andrade appeared angry at himself and stated that he was in a place that he should not have been; that he was where he had told his crew never to be. Mr. Andrade denies making such statement. Mr. Dalke testified that his backup alarm was activated when the accident happened. Mr. Andrade did not hear the backup alarm on Dalke's truck. Additionally, Mr. Andrade admitted that he took Norco on the day of accident for ongoing, daily pain due to pre-existing plantar fasciitis in both feet.

Mr. Andrade's employer, Pave Tech, was also comparatively at fault for the accident for its failure to maintain a safe work place for its employees, including Mr. Andrade.

Mr. McWalters stated that, on a project of this nature, Pave Tech is supposed to create and implement a traffic control plan for construction vehicles moving on the project, including materials delivery trucks such as the asphalt delivery dump trucks, and to inform truck drivers where to maneuver their trucks in order to unload their asphalt into the shuttle buggy attached to the paving machine. Project superintendent Hernandez admitted that no such traffic control plan was in place at the time of Mr. Andrade's accident.

Armando Andrade sustained serious bodily injuries consisting of a complex fracture and dislocation of the right tibia and fibula at the ankle as well as multiple fractures of his foot. He initially underwent surgery consisting of an open reduction and internal fixation of the right ankle; fasciotomy of the right leg and foot; application of wound vac to his leg and foot; and application of a short leg splint. In October 2018, Armando underwent an outpatient surgical procedure consisting of an arthroscopy of the ankle to remove scar tissue and bone spurring; repair a torn ankle ligament; and remove broken surgical hardware from the fibular bone. Plaintiffs contend that Mr. Andrade will require future ankle fusion surgery.                                 

Plaintiff Sharon Andrade made a claim for loss of consortium due to her husband's injuries interfering with and placing a strain on their marital relationship due to his frustration, depression and withdrawal from interpersonal and social interaction.

Mr. Andrade's paid medical bills totaled approximately $163,856, with claims of ongoing and future medical treatment. Mr. Andrade earned an average of approximately $10,000 gross per month. His gross lost earnings claim exceeded $160,000. Mr. Andrade's injuries allegedly caused him to be unable to return to work since the July 31, 2017, accident to the present time. Plaintiffs contended that Mr. Andrade would not ever be able to return to his usual occupation, although he testified that was his desire and intent.

In addition to filing the instant action, Mr. Andrade filed a workers compensation action for his employment-related injuries arising out of the subject accident. Federal Insurance and his employer, Pave Tech, sought recovery of workers compensation benefits paid to and on behalf of Mr. Andrade. The last known lien amount claimed by the subrogation parties was the sum of approximately $236,890, consisting of $73,034 in paid disability indemnity and $163,856 in paid medical expenses.

The matter went to private mediation where defendant offered only $30,000.  Ultimately, South Valley tendered its policy limits of $1,000,000 and Triple E paid $207,500 to the workers comp carrier.   The workers comp carrier agreed to waive any right to future credit.