PLUM ISLAND — A 2005 explosion and fire at a Plum Island construction site that killed a father and maimed his son has made its way to the state Supreme Court, where a dispute over the right to sue a Newburyport builder could have ramifications for contractors across the state.
Timothy Wentworth, 51, and his son, Ezekiel Wentworth, then 24, were spraying a waterproofing material in a home at 154 Old Point Road in the Newburyport section of Plum Island in August 2005 when a pilot light on a water heater ignited the fumes, according to news reports. An explosion and fire caused severe burns to both men, and within weeks Timothy Wentworth died from his injuries.
Four Plum Island neighbors who heard the explosion and pulled the men from the burning building were given the state's prestigious Madeline Amy Sweeney Award for Civilian Bravery. Timothy Wentworth was already halfway out of the building and was quickly pulled to safety, while his son was trapped inside, where the room had filled with thick smoke. Two neighbors went inside the building, feeling along the floor until they could find Ezekiel Wentworth and pull him outside.
Ezekiel Wentworth suffered "a great deal of disfigurement," and has undergone numerous surgeries, said his family's lawyer, John Fraser. "He's not able to do much in respect to what he was able to do before."
In the years since the accident, a wrongful death and injury case filed by Cheryl Wentworth, the wife of Timothy and mother of Ezekiel, has made its way through the state courts. The Wentworth case arrived at the Supreme Court's door recently to resolve an issue that's become central to the suit — a dispute over the state's workers' compensation insurance law. The court will hear arguments starting today.
According to the court documents, Newburyport-based builder Henry C. Becker had hired the Wentworths' North Berwick, Maine, company as a subcontractor. The Wentworths did not carry workers' compensation insurance, which helps pay for medical costs and lost pay if a worker is injured or killed on the job.
State law says that employers are required to provide workers' compensation insurance to employees and make sure that subcontractors are covered in most circumstances, according to the state Department of Industrial Accidents.
Cheryl Wentworth filed a workers' compensation claim against Becker, arguing that he had allowed an uninsured subcontractor to work on the job. Becker agreed to a settlement, the court records say.
Wentworth also went to court and sued Becker for negligence in the death of her husband and the injuries to her son. Becker fought it in court, arguing that state law doesn't allow subcontractors like the Wentworths to both collect workers' compensation insurance and sue for damages — it must be one or the other, and the Wentworths had already chosen the insurance. Essex County Superior Court Judge Thomas R. Murtagh agreed with Becker in a decision handed down two years ago.
But the Wentworths' lawyers argued that a case Murtagh based his decision on was flawed, and an appeals court panel agreed with the Wentworths. Timothy and Ezekial Wentworth shouldn't be considered to be employees of Becker, the Wentworths' argument says, and therefore they aren't subject to a state law that requires them to choose either the insurance or the lawsuit.
A lawyer for Becker didn't return a call yesterday.
The Massachusetts Academy of Trial Attorneys, a nonprofit association of lawyers, has filed a brief in support of the Wentworths, saying they should be allowed to sue Becker. The association harshly criticized Becker's firm, arguing that by "having been negligent in causing the injury and culpable in failing to confirm the subcontractor's insurance coverage, (it) will never pay for its share of the harm caused by its negligence."
The association also accused Becker of taking part in what it called the state's "underground economy" of exploited workers.
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