By Michelle Lorenz, Manager of Litigation and Claims, NBIS
In the May issue of American Cranes & Transport, John Schoppert discussed the most common OSHA citations under the new Crane and Derrick standard. NBIS has found that the cause of accidents in this niche market has some significant differences from the most common OSHA citations. Therefore, we will focus on power line contact and the citations related to the failure to maintain a 20-foot working radius from power lines.
The number of OSHA’s power line citations appears to correlate with severity of the harm and the frequency of the incident in the construction industry in general. According to OSHA, 15 workers die each year from crane contact with power lines. Thus, it appears to be a high priority for OSHA, and the number of power line citations reflects that severity.
Moreover, even historically, power line contact was a focus of OSHA’s citations. For example, from 1991-2002, 34 percent of crane-related fatalities arose from electrocutions of workers on construction sites. During that same period of time, the number of Serious Citations to the Crane & Rigging Industry was dominated by power line accidents. Prior to the adoption of the new Crane and Derrick Standard, over 30 percent of serious citations were for operating proximate to power lines where electrical distribution and transmission are energized.
For over 20 years, OSHA’s continued focus on avoiding power line contact is exemplified both by the number of citations as well as the number of Serious Citations under 29 CFR 1926. While we agree with OSHA’s emphasis on power line contact because of the catastrophic outcomes, neither power line contact nor electrocutions from power line contact is common among the insured with NBIS. We can only surmise that this is because the locations of power lines are being highlighted in pre-lift meetings, designed around in lift plans, discussed when setting up the cranes, and pointed out by the experienced operators in the seats of cranes.
However, in the crane and rigging industry, when power line contact does occur, it often occurs on K rail jobs. Fortunately, power line contact on K rail jobs hasn’t often resulted in fatalities, but it has caused significant property damage to insured’s cranes and to the surrounding property. It also has the potential to cause catastrophic harm.
Doing a deeper dive into those K rail accidents, we find a few common patterns. As we all know, many K rail jobs happen at night and on weekends and this seems to impact the cause of the accidents in a myriad of ways. First, it appears many of the operators on these jobs are the less experienced operators. Second, the picks are obviously repetitive, and thus it may be that inattention plays a role. Third, fatigue may also play a role as power line contact often occurs near the end of the shift and into the late night/ early morning hours. Fourth, because many K rail jobs occur at night, visibility appears to be a contributing factor. Fifth, often this contact occurs when the operator is moving his crane rearward and the power line is not in his view. Finally, almost without exception, power line contact is occurring when the spotter is distracted or isn’t present.
When doing pre-lift meetings, it’s important to ensure the power line is illuminated by bright lighting to warn riggers, signalmen, spotters and operators of an upcoming power line. Operators should refuse to move their crane – or even travel to a new position on the K rail job – when their spotter steps away for even a few moments. Reemphasize with operators the importance of noting the location of these power lines. Ensure operators have adequate rest before beginning a K rail job. Consider if it’s appropriate to travel with the boom extended when moving across intersections or other spans. Have operators note on their rental tickets the name of spotters and signalmen. Discuss emergency procedures in case of power line contact. Discuss whether it’s appropriate to de-energize lines. Finally, ensure a pre-lift meeting occurs every day and every shift, and especially if new spotters or signalmen are assigned to the task. This takeaway can also be used on any job where the potential for power line contact can be made.
According to OSHA, from 1991-2002, nearly 75 percent of fatality victims were riggers and laborers; less than 5 percent of victims were the crane operators themselves. In our experience, an experienced crane operator working for a crane and rigging company is almost never the victim. From a claims perspective, this means your Worker’s Compensation EMOD is not likely to be impacted by electrocution cases. Instead, your general liability policy will be. Because the majority of victims of electrocutions are riggers – who are most often employed by others – your company will be the likely target in a lawsuit brought by the victim’s estate.
When the victim’s estate sues a crane and rigging company, one other factor will impact the exposure to your GL policy: The victim’s employer will likely be immune from liability because of the worker’s compensation bar. This is significant in the context of ASME B30.5 Duties and Responsibilities. Often the victim’s employer will be the lift director. On some jobs – like K rail jobs – the victim’s employer will also concurrently be the site supervisor.
Consider this worker’s compensation immunity in light of who is likely the primary cause of the accident: spotters and signalmen. Because the spotters and signalmen are most often employed by the lift directors and site supervisors, and because they are often employed by the same company as the injured victim, your crane company could be left as the only defendant in a lawsuit.
The impact of worker’s compensation immunity is further compounded by the fact that you might be in a state that applies joint and several liability. Reflect back to one of our earlier articles, or ask your agent or attorney if your state is one with joint and several liability. If it is, your GL policy could end up paying for the percentage of fault apportioned to the immune employer of the victim in a power line contact case. For example, your crane operator could be 1 percent at fault and the immune employer of the spotter could be 99 percent at fault, but your GL policy could be stuck paying for 100 percent of the damages.
This is a dangerous outcome in a catastrophic case, and it could result in catastrophic impact on your own loss history even though your company wasn’t the primary cause of the danger.
Failure to maintain a 20-foot working radius from power lines appears atop OSHA’s citation list, both because of frequency and severity of harm. However, it appears insured in our NBIS program have a better track record of avoiding power line contact than other non-specialists operating cranes.
Source: American Cranes & Transport Magazine, June 2013 Issue