3/29/2007 - Mexican family of victim to seek compensation

BY STEVEN BEARDSLEY

Family members of a construction worker recently killed when a house collapsed at Chateau Elan have hired an Atlanta attorney to seek workers' compensation on their behalf. Meanwhile, as an Occupational Safety and Health Administration (OSHA) study continues, the same building contractor is rebuilding the house on the same site 18 days after the incident occurred.

L. Brown Bivens, a civil litigator with Mobley, Bivens & Self, LLP of Atlanta, says he has agreed to represent the family of 43-year-old Evaristo Enrique Chimal Librado, who was killed when the Chateau Elan house in which he was working suddenly collapsed on top of him, Saturday, March 3. The house, at 2410 Green Mountain Drive, was part of a new construction phase in The Villages community of the private development.

Bivens said Librado was an undocumented alien from Mexico who sent a monthly $400 paycheck back to Mexico City to aid his wife, three children and a mother.

As to Librado's legal status affecting his eligibility for compensation, Bivens says he believes it will not.
"That was my first question," Bivens said. "And I have to tell you, I've never had a case where the injured party was here illegally, or an alien. My understanding of the law in the worker's compensation arena, and in every other personal injury, is that it doesn't matter where you are from."

Most builders will only hire subcontractors with workers' compensation insurance, Bivens explained, and once any individual begins work for that subcontractor, he or she is eligible for compensation.

By Georgia law, a maximum workers' compensation award would provide the Librado family with the greater of two-thirds of Librado's salary for 400 weeks, or $125,000. It would also provide a $7,500 death benefit.

Bivens believes Librado was hired by a subcontracting company that, in turn, may have been hired by a framing subcontractor. Bivens' office is currently trying to determine Librado's direct employer, and is being assisted by the worker's friends.

The attorney also believes the circumstances of the case could give rise to additional litigation.

"It interests me because I can't understand how an 80-percent-complete house blows over in a 33 mile-per-hour wind," he said.

Reports from responding police and fire departments note the framing of the house was well advanced at the time of the incident. They also state that workers at the site reported that a gust of wind immediately preceded the collapse.
Bivens said an Athens weather station indicated gusts of 33 mph on March 3. The National Weather Service in Peachtree City reported gusts up to 24 mph at the Barrow County airport in Winder on the same day.

Two other workers sustained non-life-threatening injuries during the incident. Both were on the roof when the house collapsed. A police report states Librado, who sustained internal injuries, was working inside at the time.

The report also indicated that BLW Homes, based in Braselton, was the homebuilder. Bivens says a subcontractor employed Librado.

SouthCare Funeral home in Marietta held a visitation for Librado's body on March 8, and a funeral service on the following day. The body was subsequently flown to Mexico City, where it will be buried, a SouthCare official confirmed.

BUILDING CONTINUES AT ACCIDENT SITE

Braselton and Chateau Elan officials have confirmed that building has continued at the lot where the incident occurred, with the same builder, BLW Homes Group, Inc., continuing work.

At the same time, an OSHA study continues into the circumstances surrounding the collapse. G.T. Breezly, area director of the OSHA Atlanta East office, said it is not untypical for builders linked to an investigation to resume building after an accident.

"We can only do what we can do. We don't have the authority to suspend work. [BLW] said 'Okay, the building is down, so we're going to create a whole new building now," Breezly surmised.

"I'm hoping they're not using the parts of the old building and raising it back up again," he added.

Breezly said that as part of the investigation, OSHA will interview both the builder and subcontractor, in addition to other parties it believes might have knowledge of the situation. Most investigations take six months. Should OSHA determine negligence on the part of any parties involved in the incident, they could decide to file civil charges, Breezly said, penalizing individuals or companies with hefty fines.

Phil Mulherin, vice president of development for Fountainhead Residential Development, the company developing Chateau Elan, said his office is aware that BLW has resumed building, though he is not sure if they using the same subcontracting company that worked on the collapsed house.

Mulherin said he knows little about the OSHA investigation. "It's really been an issue between the builder, being the exclusive builder on that entire development, and OSHA," he said.

He estimates BLW has built more than 100 homes in Chateau Elan and that the builder currently has 20 units in construction as part of the new phase. Chateau Elan, which employs 11 other builders for additional construction phases, markets and sells the homes after they are built.

A voice message left with BLW Home Group, Inc., was not returned by deadline.

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