By Phyllis Zorn, Staff Writer
Enid News and Eagle
Not only is Zaloudek Grain Co. fighting its workers’ compensation insurer over coverage for two teens injured in a floor auger accident Aug. 4, 2011, it also is fighting a negligence lawsuit.
Cherie Gannon, Lee Zander and Rhonda Zander, parents of Bryce Gannon and Tyler Zander, are suing Zaloudek Grain Co. and its officers and shareholders for more than $75,000, plus punitive damages. In separate but identical lawsuits filed by the same lawyers, the families assert five counts of negligence against the grain company.
Kingfisher County Associate District Judge Robert Davis is assigned to the case, filed in Garfield County District Court.
The petitions contend Zaloudek assigned the teens to “work duties in violation of state and federal labor laws,” and were negligent in training and supervising them. Furthermore, they contend Zaloudek failed to warn the teens of the hazards of the in-floor auger, did not have workers’ compensation insurance and that the auger was “improperly guarded, maintained, designed and configured all in violation of multiple federal and state safety codes, ordinances, labor laws and industry standards and practices.”
However, lwyers for Zaloudek, point to the grain company’s own lawsuit against its workers’ compensation company, filed in Oklahoma County District Court, as the reason the Gannon and Zander lawsuits should be dismissed — or at least put on the shelf until the Oklahoma County court decides whether CompSource Oklahoma must pay the bills for the teens’ injuries at Zaloudek.
In the negligence lawsuit, Zaloudek’s original answer was filed by Richard Hornbeek, the same Oklahoma City lawyer who represents the grain company in its lawsuit against CompSource. Then, Hornbeek withdrew from the negligence lawsuit and Tulsa attorney Joe Farris stepped to the plate.
Farris contends Oklahoma workers’ compensation laws leave the teens one place to turn for compensation.
“Typically — overwhelmingly, I should say — if a worker is injured on the job, workers’ compensation is the exclusive remedy,” Farris said.
The exception to that rule, Farris said, is when an employee works in a place so dangerous there is no question they eventually will be injured, which is a difficult contention to prove in court, he added.
Brad Gungoll, who filed the lawsuits on behalf of Bryce and Tyler’s families, said Zaloudek’s court fight with CompSource Oklahoma makes no real difference in the negligence matter.
“We are not a party to that lawsuit,” Gungoll said.
The only difference Zaloudek’s lawsuit against CompSource will make to the teens and their families is who pays after the negligence lawsuit is finished, Gungoll said.
“They did not have workers’ comp bound on the day of the accident,” Gungoll said.
Though Bryce and Tyler both have a long, hard road ahead of them, Gungoll said, he is inspired by their determination. Both boys lost legs in the accident and were hospitalized for a lengthy time. Both have since returned home.
“The attitudes of these young men are really a testament to the human spirit,” Gungoll said. “These young men are more driven than ever before to accomplish what they set out to accomplish.”
Gungoll said the final amount the families will seek isn’t yet known because medical bills still are coming in. They have to reach “maximum medical recovery” before the sum will be known, Gungoll said.
“People have really poured their hearts out to these boys, and every bit of that is appreciated,” Gungoll said.
Money raised on their behalf has gone to defray travel expenses between here and Oklahoma City, where they were hospitalized, provide for needs throughout the ordeal of the hospitalization and follow-up, and make modifications to their homes and such, Gungoll said. All has been a help.
Asked if anything has been paid toward the costs of Bryce and Tyler’s medical care, Farris answered, “Not that I’m aware. I don’t know if these young men had any personal coverage.”
Gungoll was more succinct.
“My short answer would be ‘No.’ The boys and their families are saddled with it.”