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Attorney(s) for Plaintiff:
Carl J. Kolb
Carl J. Kolb, P.C.


Atascosa County, TX

In this action for fraud and breach of contract, the plaintiff, Christina Viesca, alleged that she was entitled to worker's compensation benefits per the terms of a statutory policy as opposed to the non-subscriber policy held by the defendant, Business Staffing Inc. ("BSI") and provided by the co- defendant insurance company, Transglobal Indemnity ("Transglobal").

The defendant, BSI, leases employees and was contractually required to provide worker's compensation insurance to those employees pursuant to an employee lease agreement that existed between BSI and Wiley, an oilfield operator. Although, BSI claimed to have purchased "worker's compensation" insurance for Wiley's lease employees, instead of purchasing a statutory policy, BSI procured a non-subscriber policy through its own captive insurance company, Transglobal. As a result, when the plaintiff attempted to recover from BSI for the accidental death of her husband, she received significantly less than that to which she believed she was entitled.

On October 22, 2005, Hector Viesca was killed on the job while working for BSI as a leased employee through Wiley. Initially, the decedent's wrongful death beneficiaries filed suit against the defendants, Wiley and BSI. as joint, non-subscriber employers. However, Wiley settled with the decedent's family for $150,000 plus two thirds of any sum Wiley recovered from BSI and Transglobal; ultimately becoming a co-plaintiff in the instant litigation.

Thereafter, BSI and Transglobal offered to settle the wrongful death claim for $995,000. The offer was rejected based on the plaintiff's belief that the defendants owed (present value) $1,600,000. In addition, co-plaintiff, Wiley's, prayer for relief included a request for actual damages in the amount of $1,223,270. This sum included $260,000 as restitution for lease payments and for failing to procure statutory worker's compensation, the $150,000 that Wiley paid to settle its claims with the decedent's family, and twice the sum of these amounts as representative of Wiley's own actual damages; such as its ongoing obligation to pay the decedent's family two thirds of any recovery. Wiley was awarded from the instant litigation.

Ultimately, the case went to trial on the issue of whether or not BSI was in breach of its contract with the plaintiffs and whether or not BSI and Transglobal committed fraud and violated the DTPA/Insurance Code. The plaintiffs argued that even if the defendants had paid the decedent's family all that they were entitled to under a statutory worker's compensation policy, the defendants remained liable as a non-subscriber. Moreover, the plaintiffs contended that the average weekly wage benefits actually paid were paid late and in amounts lower than the statutory policy would have required.

The defendants denied the allegations. Instead, the defense contended that the contract at issue did not require the defendant to procure a statutory worker's compensation policy. In addition, the defense argued that whether or not the defendant had purchased as statutory policy was irrelevant insofar as the existing policy provided the same benefits that a statutory worker's compensation policy would have provided.

Ultimately, a unanimous jury awarded the plaintiff, Christina Viesca $1,600,000 in actual damages, and additional damages of $4,800,000. The jury also awarded Wiley $1,223,270 in actual damages, and additional damages of $3,669,810.

Plaintiff's insurance & underwriting expert: Don Bendure from Colleyville, TX.

Christina Viesca, et al. vs. Business Staffing, Inc., et al. Case no. 06-01-0869-CVA; Judge Fred Shannon, 05-18-10.

Attorneys for plaintiff: Carl J. Kolb of Carl J. Kolb, P.C. in San Antonio, TX, Robert M. Stone of Law Office of Robert M. Stone in San Antonio, TX, and Wayne Shuffield of Adami Shuffield Schiehing Burns in San Antonio, TX. Attorney for defendant: Bogdan Rentea of Rentea & Associates in Austin, TX.

According to the plaintiff's counsel, the jury's verdict was a direct result of the fact that they believed the marketing of the worker's compensation benefits policy at issue was deceptive, and that the contract between BSI and Wiley required a statutory worker's compensation policy be procured.

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