Painter Recovers over $1.7 Million Following Partial Building Collapse

Diller Ruis Osorio - Panter Panter Sampedro (1)Daniel Ortiz came to Miami on a work visa to provide for his family abroad. He found work with a custom painting company that specialized in large painting jobs. About one month after starting this new job, Mr. Ortiz’s employer was brought on to paint the interior of a large home on Biscayne Bay that had recently undergone a complete renovation.

Mr. Ortiz and his coworkers were tasked with painting the newly installed ceilings, walls, doors, and woodwork throughout the interior of the 3-story, 11,000 sq. ft. home. One of the small pleasures of the job was being able to sit on the home’s expansive patio that overlooked a private cove and Biscayne Bay while on breaks.

On June 1, 2020, Mr. Ortiz was seated on the ground floor patio enjoying the breeze off Biscayne Bay while he ate lunch. Suddenly and without warning, the patio ceiling gave way and collapsed striking Mr. Ortiz’s head and then landing squarely on his left leg. Mr. Ortiz was pinned beneath the rubble which caused multiple tibial plateau fractures and multiple tibial shaft fractures. Once the wreckage was lifted off him, it became apparent that Mr. Ortiz also suffered multiple deep puncture wounds to his lower left leg.

Mr. Ortiz was rushed to the nearest hospital, where he underwent a fasciotomy – a surgery consisting of cutting the tissue around muscle groups to remove swelling – to address his acute compartment syndrome. Compartment syndrome, if not quickly addressed, can lead to tissue death and amputation. After controlling the dangerous muscle swelling, Mr. Ortiz’s doctors then addressed the contamination caused by his deep puncture wounds and worked to stabilize his complex tibia fractures. Mr. Ortiz spent the next ten days in a hospital bed with a system of external rods and pins holding his tibia together and a wound vacuum on his calf to help heal from the fasciotomy. He also underwent a painful skin graft to cover his surgical wound.

On the tenth day after his crush injury, Mr. Ortiz had a second surgery, this one designed to permanently repair his broken leg with internal screws and rods. Mr. Ortiz spent the next five days – and a total of two weeks – in the hospital. Months later, Mr. Ortiz underwent a third surgery to address ongoing pain and discomfort by removing the screws and pins from his tibia. The rod inserted into his tibial shaft will remain permanently.

As soon as he was stable and able to take stock of what happened, Mr. Ortiz reached out to David Sampedro at Panter, Panter & Sampedro for legal advice. David immediately drafted letters to the owner of the home under construction and the general contractor demanding that they preserve all evidence of the incident including the physical debris that landed on Mr. Ortiz. David and Josh Wintle, partner at Panter, Panter & Sampedro, also began the investigation into what exactly triggered the collapse and who was responsible for Mr. Ortiz’s injuries.

Unbeknownst to Mr. Ortiz and his employer, about nine months before Mr. Ortiz’s injury a new drop ceiling had been installed on the patio. It was the patio drop ceiling that gave way and fell upon Mr. Ortiz. David and Josh filed suit against the contractor and subcontractors responsible for the installation and finishing of the patio drop ceiling.

Not long into the litigation and formal discovery process began, it became apparent that the contractor and subcontractors failed to preserve the physical evidence of the collapse. The only piece of debris kept was what one of the subcontractor’s referred to as a “souvenir” – a small piece of stucco taken from the edge of the failed ceiling. David and Josh amended the complaint alleging spoliation, or destruction, evidence and advised of his intent to argue to the jury that the missing evidence was destroyed because it was too damning to the defendants.

Fortunately, the discovery process also uncovered a short video taken after the collapse and before the debris was removed. Under careful analysis, Josh was able to establish that the video showed the thickness of the stucco applied to the drop ceiling framing, the framing material, the anchors used to secure the framing, and what those anchors were attached to. With this evidence, David and Josh retained a construction expert to provide an opinion on what went wrong and why.

After analyzing the debris video and the depositions taken by Josh, the expert was able to show that the ceiling collapse was caused by a litany of errors in the sourcing of the materials used, the incorrect type and insufficient quantity of metal studs used to the construct the framing, improper screws and anchors, the substandard design of the framing system, failure to properly attach the framing system to the concrete slab of the floor above the patio, and irregular application and thickness of the stucco throughout that patio ceiling.

The patio drop ceiling installed approximately nine months prior to Mr. Ortiz’s injury was a ticking time bomb. It was destined to fail and violently collapse. Mr. Ortiz was simply in the wrong place at the time the shoddy work finally gave way.

David and Josh took ten depositions and conducted copious paper discoveries over the course of the year and a half following Mr. Ortiz’s injury. Ultimately, less than two years after his injury Mr. Ortiz was able to reach a settlement with each of the contractors and subcontractors responsible for his injuries. Mr. Ortiz received the full insurance policy limits of the two subcontractors that designed, sourced, and installed[1] the framing system while also receiving settlements from the general contractor and stucco subcontractor.

All told, David and Josh were able to secure $1,710,000 for Mr. Ortiz. Those funds were in addition to the more than $500,000 of medical and lost wage benefits Mr. Ortiz received from his workers’ compensation insurer.

Shortly after the conclusion of the litigation, Mr. Ortiz was able to return home to see his children in Colombia for the first time since his injury. With his fractures healed and well on the road to recovery, Mr. Ortiz was able to start the process of healing his family and using his settlement funds to build and plan for their future.

[1] The installer’s insurance company sued Mr. Ortiz and its own insured, the installation subcontractor, alleging that the commercial liability policy at issue provided no coverage for Mr. Ortiz’s injuries. Josh was able to successfully defend that declaratory judgment action and secure a tender of the full policy limits.

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