Late April summary judgment hearing set in suit over woman tossed by backhoe

David Yates Apr. 13, 2011, 8:21am


A summary judgment hearing between ABClean and plaintiff Ruby Clurksy, who sued after being swung around by a backhoe, has been set for late April.

Acting as a third-party plaintiff, ABClean filed a motion for summary judgment Jan. 4, arguing Clurksy already received worker's compensation.

A third amended notice of oral hearing was filed April 1, rescheduling the hearing for Friday, April 29, court records show.

In October 2009, Ruby Clursky sued ABClean and Motiva Enterprises, alleging an ABClean employee fell asleep while operating a backhoe and accidentally lifted her off the ground.

Court records show Clursky was working for L.C. Personnel Inc. on Dec. 3, 2008, on property owned by Motiva Enterprises when the incident occurred.

"The backhoe operator fell asleep and when he woke up his jacket hung over the lever of the backhoe," the suit states.

"The backhoe then caught the Plaintiff, Ruby Clursky, and lifted her off the ground and swung her back and forth resulting in the injuries and damages complained of herein."

In its motion for summary judgment, ABClean argues that Clursky was a "borrowed employee" and that her "exclusive remedy" was the worker's compensation she received following the incident.

Clursky filed a response to the motion on Jan. 11, which contends there was no contract between herself and the company and that she had only been on site for a week and was left unsupervised.

Because of the incident, Clursky says she experienced physical pain, suffering, mental anguish, loss of earning capacity and physical impairment and incurred medical expenses.

She is represented by Tom Oxford of Waldman Smallwood in Beaumont.

Houston attorney Daniel Fulkerson of the Lorance & Thompson law firm represents ABClean.

Judge Donald Floyd, 172nd District Court, is presiding over the case.

Case No. E185-010

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