Attorney(s) for Plaintiff:
Carl J. Kolb
Carl J. Kolb, P.C.
www.TexasLawyerMalpractice.com
$10,800,000 VERDICT - FRAUD - BREACH OF CONTRACT - DEFENDANT STAFFING FIRM FAILS TO PROVIDE STATUTORY WORKER'S COMPENSATION INSURANCE FOR LEASED EMPLOYEES.
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.
Reference
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.
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