Death on state road’s impact
Family of worker killed on the job uncovers Texas’ insurance oversight
RYE — Less than two years out of high school, Matthew McCoy did what many young men in Texas do and found a decent job for an honest day’s labor.
Weeks after going to work for a state highway maintenance contractor in March, McCoy was part of a road crew replacing the lane reflectors along Interstate 20 in west Pecos, where Texas is so flat the sky touches the low, dry grasses at the end of the horizon. McCoy and another worker were in the lead truck of a four-vehicle maintenance convoy. Their job was to pry the current reflectors — those bumpy plastic objects roughly every 50 feet along an interstate — out of the pavement and toss them in the back of the pickup.
Typically, it is a three-person job to grab the reflectors and go. But on April 6, McCoy was pulling double-duty by inching the truck forward, in between grabbing the reflectors himself and tossing them in the back. Normally, a driver would stay in the truck as the two other workers grabbed
the reflectors and tossed them in the bed.
As they popped reflectors out of place and moved ahead, McCoy got ahead of three trailing vehicles — or they lagged behind him, police were not clear — including the rear vehicle that was directing traffic out of the slow lane of I-20 with a flashing yellow arrow. After passing the three rear vehicles, Jay Dilorenzo, 47, merged his new Freightliner semitractor and the truck trailer he was hauling into the slow lane, following another truck.
Based on the police report, Dilorenzo then saw the truck McCoy was driving, tried to steer back to the left, but didn’t make it in time. The semi-tractor trailer hit the pickup’s left rear, spinning it off the roadway and ejecting McCoy from the driver’s seat, fatally injuring the 20-year-old. The other worker narrowly missed being hit by diving out of the way because he was outside the truck. McCoy was rushed to a hospital in Odessa — about 80 miles away — where he died six days later.
“He didn’t have a broken bone anywhere,” Kaye McCoy said, gathering her composure as she recalled the incident and the havoc it brought to their family. “It was a head injury.”
In reviewing the tragic incident following Matthew McCoy’s death, Texas transportation officials said there’s room for improvement in maintaining records and holding state contractors responsible. Plans are underway to revise language to toughen breach of contract terms in state contracts, to include improper workers compensation insurance filings. Though finalizing the new rules will take months of legal vetting and ultimately approval from the Texas Transportation Commission, officials called it a necessary improvement to make sure the thousands of people welding, pouring concrete and maintaining state highways are protected. From grief, action
Less than two months after Matthew was tragically killed on his job in West Texas, his grandparents Joe and Kaye McCoy, did what many grieving families would do and searched for answers to the tragedy that seemingly made no sense.
They sought to understand how Dilorenzo’s truck came to be in the midst of a highway work zone, how vulnerable it seemed Matthew’s bosses left him and what could be done to discipline their grandson’s employer, get compensation for his death on the job and make sure this kind of tragedy doesn’t happen again.
“This thing has devastated our lives,” Joe McCoy said recently over the phone, his voice slowing to choose his words. “You have no idea how much we loved him.”
Grief turned to anger after the workers compensation claim Matthew’s mother, Rebecca Horrigan, filed was denied in June. Now, Kaye McCoy was looking for a fight with the insurance company, and the Texas Department of Transportation, which allowed the contractor hire for the highway maintenance job Crawford-based JASCO, to file erroneous paperwork that didn’t mention a subcontractor it hired for the job, who JASCO-claimed was Matthew’s employer.
She wanted the state to explain itself, and possibly even punish one or both of the companies — JASCO, the contractor, or Matthew’s actual employer, Smitty and Sons Enterprise, the subcontractor. Neither company responded to requests for comment for this story.
The McCoys channeled grief and anger into determination to hold Texas transportation officials responsible for better management of road maintenance contracts, taking on a state system from a modest house down Mys- tery Road — a gravel and dirt lane separating the East Texas forest and the big thicket in rural Liberty County.
For families involved like the McCoys who seek relief via workers compensation claims, any hiccups or inaccuracies can be devastating, and the state’s ability to police highway project paperwork is tricky to assess.
“Construction is a really fluid process, and we would love for there to be more documentation,” said Shonn Brown, a Dallas lawyer who has represented citizens, government agencies and insurance companies in a host of liability claims. “But the reality is, it is something hardly anyone pays attention to. As long as the job gets done on time and there is no issue and no one gets hurt, I don’t think anyone (outside TxDOT) looks into if the paperwork is all there.” State admits mistake
Following a letter-writing effort by Kaye McCoy, Texas Department of Transportation officials acknowledged in July “an omission in our sanction rules” regarding subcontractors on state road jobs submitting proof of valid
“The reason I was upset, well, losing Matthew was the reason I was upset, but TxDOT had rules and regulations that were mandated. It felt to me that TxDOT had not done its due diligence.” Kaye McCoy, grandmother of Matthew
workers compensation insurance.
Despite agreeing with McCoy that the state contractor JASCO didn’t properly alert the state to the subcontractor who hired her grandson or file the proper proof of workers compensation insurance, TxDOT cannot penalize the contractor, or the subcontractor that wasn’t registered for this highway job. In fact, JASCO has subsequently been the low bidder on other state highway maintenance jobs, including one in October to repair and seal cracks in highways in Cooke County, near Wichita Falls.
State officials said they simply lack a mechanism under TxDOT regulations to disqualify companies that hire subcontractors and don’t properly notify them as JASCO did, or turn in the wrong workers compensation forms.
The confusion over improper workers compensation paperwork and the state having limited accountability over a contractor, state officials said, is extremely rare, based on more than 40 other state highway maintenance contracts reviewed by the Houston Chronicle for approved in 2015 and 2016. The contracts showed no signs of improper insurance filings, as most were awarded to pre-qualified bidders like JASCO that have their workers compensation insurance information on file.
Many road building and maintenance industry of- ficials — though reluctant to criticize another business openly — said they’d never seen such an error regarding proper insurance coverage by a contractor in decades of state road improvement contracts, citing the extreme risk a company hired to do a state job would expose itself to for not having the proper proof of workers compensation insurance.
Though exceedingly rare given that around 2,500 workers are present at any time along Texas highways, fatalities occur, and nearly half of workers killed in construction zones result from incidents in which vehicles strike workers. From 2011 to 2014, the last year verified information is available from the U.S. Bureau of Labor Statistics, 22 road workers were killed in work zones after being struck by a driver in Texas, of the 229 killed nationwide.
“(TxDOTofficials) do inspect work sites periodically and part of that inspection is to ensure that safety is an important aspect of job performance,” TxDOT spokeswoman Veronica Beyer said, responding to questions about McCoy’s death. “In Ms. McCoy’s case, a third-party truck driver was the cause of death of her grandson.” Frustration mounted
Still, as Matthew’s grandparents dived deeper into the circumstances of the workplace wreck that killed him, their frustration only compounded.
Because JASCO was not Matthew’s employer, the company’s workers compensation insurance wouldn’t cover him anyway, and in fact one of the insurance forms JASCO submitted clearly stated the insurance did not cover alternate workers from subcontractors. What’s more, subcontractors are not valid on state jobs, per TxDOT and Texas insurance laws.
JASCO, which otherwise has a solid but limited track record of conducting maintenance for TxDOT, didn’t mention a subcontractor on the job Matthew worked on when it filed its paperwork with TxDOT for the road work on I-20. State officials, meanwhile, failed to catch the error and accepted a proof of insurance form from JASCO that was — by TxDOT’s own policies — not valid as proof of workers compensation insurance.
“The reason I was upset, well, losing Matthew was the reason I was upset, but TxDOT had rules and regulations that were mandated,” Kaye McCoy said. “It felt to me that TxDOT had not done its due diligence.”
Over more than three months of back-and-forth that included direct appeals by mail to Gov. Greg Abbott, Kaye McCoy received acknowledgement that TxDOT erred in overseeing the paperwork. In the end, the state plans to strengthen its breach of contract terms with contractors, but there would be no sanctions against JASCO and the company continues as a state contractor. No sanctions
For legal purposes, JASCO’s workers compensation insurance must cover employees, but for this highway job Smitty and Sons — run by the cousin of the head of JASCO — was never a valid subcontractor, TxDOT concluded. That meant the state could not sanction JASCO, TxDOT officials said, because they technically hadn’t breached their contract with the state.
McCoy’s mother has a pending lawsuit against Dilorenzo and his company, Triple D Supply, contending his failure to stay out of the construction area caused the April wreck and cost her son his life. JASCO and Smitty and Sons have since been added to Horrigan’s lawsuit, which was moved from federal court to Reeves County District Court, where the accident occurred.
For his grandparents, Matthew’s death, and their aggravating ordeal to hold the state accountable for it, remains particularly painful because they had been a constant in his life.
“I am the only man alive who ever bought the boy a jar of baby food or changed his diaper,” Joe McCoy said.