On 8 October 2012, a large premanufactured retaining wall form on a Kentucky Transportation Cabinet road job in Barren County raised, toppled and collapsed while crews were pouring concrete. Kenneth Decker was killed. John McIntosh, Steve Nelson and Jamie Groce were injured. All four worked for VanMeter Contracting, the wall subcontractor to prime contractor Scotty’s Contracting and Stone. Fourteen years later, on 28 August, the Kentucky Court of Appeals wiped out the $22.58 million judgment that came out of it and ordered every claim dismissed.
How a comp bar became a $22.6 million verdict
The workers took workers’ compensation from VanMeter, which barred suit against their employer. They then sued seven KTC engineers individually as third-party tortfeasors. The engineers brought indemnity claims against Scotty’s and VanMeter under Section 107.13 of Kentucky’s Standard Specifications for Road and Bridge Construction, which is incorporated into both the prime contract and the subcontract.
In August 2020 the plaintiffs and the engineers signed an assignment of claims, a consent judgment and a covenant not to execute. The plaintiffs agreed never to collect from the engineers and took assignment of the engineers’ indemnity claims against the contractors instead. Scotty’s and VanMeter objected on collusion grounds and lost at trial. The February 2024 final judgment itemized $437,587 to Decker’s estate, $2 million to Velma Decker for loss of consortium, $1.68 million to McIntosh, $4.73 million to Groce, $2.73 million to Nelson, $1 million to Linda Nelson, and $10 million in punitive damages.
The court found nobody had proved a cause
The reversal doesn’t turn on the indemnity clause, though the trial court had read Section 107.13(3) as requiring Scotty’s to indemnify the engineers for their own negligence, over a Kentucky statute that prohibits exactly that in construction services contracts. It turns on causation.
In earlier workers’ compensation litigation, an administrative law judge affirmatively found VanMeter had used push-pull pipe bracing and spaced anchor bolts within four-foot intervals, meaning the alleged formwork violations under 29 CFR 1926.703(a)(1) did not occur. The Kentucky Supreme Court affirmed. The only uncontradicted causation evidence in that forum pointed to an undiscoverable defective anchor bolt; VanMeter’s president testified the form manufacturer reviewed the incident and found crews had used more anchor bolts than recommended. The state OSH report recorded that workers "heard a loud pop and the entire form raised and toppled to the east toward the crane."
Writing for a unanimous panel, Judge Acree held the trial court "never adjudicated" whose conduct was the primary and efficient cause and "relied solely on assumption." Quoting an older utilities case, negligence must do more "than merely furnish the condition or give rise to the occasion." The opinion is designated to be published.
Two things to take back to the office
First, a settled citation is not proof of causation. The court reiterated that a settlement agreement is not a conclusive judicial admission of a safety violation, and that an administrative determination doesn’t preclude relitigation elsewhere. Abating a citation to close a file is not conceding a case.
Second, read the standard specifications your public owner incorporates by reference. A state spec section was argued for years as making the prime contractor the deep pocket for the owner’s own inspection failures, until an appellate court finally applied the anti-indemnity statute. The Kentucky Association of Highway Contractors filed an amicus brief for Scotty’s, which tells you how the industry read the exposure.
Subcontract packaging on public work carries the same risk profile everywhere. Programs let in discrete trade packages, like the roofing, drainage and masonry award at Newark Penn Station, sit under the same kind of incorporated specification language. The opinion is on CourtListener.