HOUSTON -- Four years ago, Frank "Scott" Claborn was killed by a drunk driver while working with a construction crew on the Sam Houston Tollway near Hammerly. Claborn's family believes that drunk driver is not the only one responsible for his death. The case is headed to court and Local 2 investigative reporter Robert Arnold explains it's one that questions whether those who protect construction crews around Houston are getting the protection they need.

"He was a wonderful husband and father," said Claborn's widow, Paula Henderson, who has since remarried. "I immediately became a single mother, wondering how am I going to provide for my child."

"Me and my dad used to play football every day," said Tanner Claborn, 13.

Claborn was killed when Donald Lee Fincher slammed into his patrol car just after 2 a.m. on Feb. 19, 2004. Fincher's blood-alcohol level was nearly three times the legal limit.

"I think it could have been prevented if he would have had the proper equipment," said Claborn's mother, Betty.

She believes Fincher isn't the only one responsible for the death of her only child. When Fincher hit Claborn's car, the deputy constable was working an off-duty job protecting a construction crew from W.W. Webber.

While one crew worked near the exit behind concrete barriers, Claborn was sent to watch over two other workers who were picking up barrels to reopen the lane.

"Everyone in the construction zone deserves to be protected," said Henderson.

Claborn's family believes he should have been protected by a truck-mounted attenuator.

A TMA is designed to shield construction crews from errant drivers by absorbing the blow from a crash. Industry standards call for the devices to protect crews that aren't working behind concrete barriers.

The family has filed a lawsuit against W.W. Webber.

"They instructed him to go with this crew and to shadow this crew, but didn't provide him with the protection their own contract required," said attorney Rob Ammons, who is representing the family.

W.W. Webber had a contract with Harris County. Ammons points to item 502 of the contract, which spells out barricades, signs and traffic handling. A portion of that items reads, "Shadow vehicles equipped with truck mounted attenuators (TMA's) are required as shown on traffic control plan (TCP)."

"What caused this accident was a man named Donald Lee Fincher," said attorney Andrew McKinney, who represents W.W. Webber.

McKinney argues since the county's contract did not require Webber to have police officers working with the crews, there was no requirement to have a TMA behind the officers.

"There is no plan or specification that calls out the circumstances of putting a TMA in advance of a police officer parked on the side of the road," said McKinney.

McKinney argues several other points. He says TMAs are not guarantees, since the trucks are only 8 feet wide and the work zone is 36 feet wide. Plus, McKinney says, officers are on the side of busy freeways all the time, pulling over speeders and running radar without TMAs behind them. He also argues having a TMA behind Claborn would have blocked the flashing lights from his patrol car "and defeat the purpose of his being there, which is to slow traffic down to protect the crew," said McKinney.

Ammons says Webber should have anticipated the dangers that come with doing roadwork at 2 a.m. when the bars close. Plus, Ammons says, Webber did have a TMA at the site the morning Claborn was killed. It was parked behind the concrete barrier shielding the second crew.

"There was simply a decision not to do what should have been done," said Ammons.

Claborn's family says their lawsuit is not just about Scott, but also whether police officers have enough protection when working with construction crews.

"They're there for public safety only. They're not there to be used as crash trucks," said Henderson.

Fincher was charged with intoxication manslaughter, pleaded guilty and was sentenced to four years in prison. Claborn's family is also suing him and the bar that served Fincher.

Harris County has also joined the suit against W.W. Webber, claiming breach of contract and seeking to recoup the workman's compensation money paid to Claborn's family.

W.W. Webber disputes both claims.