The case involved two workers who were called into an industrial plant to help repair some faulty equipment. They were not employed by the plant, but instead, were third-party contractors with specialized skill. During the course of the workers’ performance of their duties, there was a fault in a piece of industrial equipment. The two workers went to investigate the cause of the fault and while awaiting supervisory assistance, an explosion occurred, severely injuring both workers.
The first plaintiff, who was the crew chief, was standing inside the protective metal railing surrounding the equipment when the explosion occurred. He was engulfed in what was described as a 30-foot ball of fire. While on fire, the first plaintiff was able to crawl through the protective railing to a place several feet from the equipment; it was there that another member of his crew put him out with a fire extinguisher. By that time, the fire had burned through his clothes, leaving him with blistered and charred skin over most of his body. The crew chief was then assisted outside the plant, where he remained conscious until being sedated during ambulance transport.
The second plaintiff was assisting the crew chief at the time of the explosion and was standing approximately 15 feet outside the protective railing. The fire ball also engulfed him, burning him from head to toe. He was put out by another crew member and also remained conscious until being placed in the ambulance for transport.
Both plaintiffs spent several months in burn units while efforts were made to save their lives. The first plaintiff suffered second- and third-degree burns over 68 percent of his body, and the second plaintiff suffered second- and third-degree burns over 45 percent of his body. Both required extensive skin grafts and numerous rehabilitative surgeries.
Both plaintiffs survived. Although the first plaintiff was determined to be fully disabled, the second plaintiff was able to resume his position of employment.
With respect to workers’ compensation, both plaintiffs’ claims were accepted by the carrier and all medical expenses and lost wages were paid during the course of their respective recoveries. As a result, by the time the third-party litigation resolved, the workers’ compensation carrier held substantial liens. Because both plaintiffs were third-party contractors brought in to perform work in the defendant’s facility, however, their claims against the industrial plant defendant were not preempted by the workers’ compensation exclusive-remedy provision.
Both negligence and causation were heavily contested in the litigation. Part of the manufacturing being performed at the defendant’s facility involved the processing of industrial material. Plaintiffs’ allegation was that the defendant failed to follow certain safety precautions related to the handling of industrial dust and that these shortcomings led to the explosion that injured the plaintiffs. Defendant disputed this allegation, instead contending that it was the plaintiffs’ faulty work that led to the explosion. Defendant also used the fact that NCOSHA cited the workers’ employer with four safety violations (related to shortcomings in safety training and protective equipment), but never cited the defendant, in support of its defense.
One of the difficulties in proving the case resulted from the defendant’s destruction of the industrial equipment that exploded. Defendant contended that it was under no duty to keep the equipment after it had been inspected by NCOSHA, the manufacturer and certain other investigators. Plaintiffs contended that an e-mail notifying the defendants of the plaintiffs’ retention of counsel and asking defendant to preserve the piece of industrial equipment in question was sufficient to require that it be maintained. Despite this e-mail (which defendant contended it never received), coupled with testimony by third-party investigators concerning their recommendations to defendant that the equipment be preserved, the equipment was sold for scrap metal. As such, plaintiffs’ experts were required to base their analysis and causation opinions on contemporaneous investigation reports and photographs.
The cases were settled at mediations which were held on separate days. The crew chief’s case, which also included a loss-of-consortium claim on behalf of his wife, settled for payment by the third-party defendant of $5 million and a waiver by the workers’ compensation carrier of its $934,151 lien, resulting in a $5,934,151 total recovery.
The second plaintiff’s case, which contained no ancillary claim, settled for payment by the third-party defendant of $2 million and a waiver by the workers’ compensation carrier of $760,695 of its lien, resulting in a $2,760,695 total recovery.
Type of action: Workplace injury
Injuries alleged: Two third-party contractors severely burned during industrial explosion
Case name: Confidential
Case number: Confidential
Verdict or settlement: Settlement
Date: May 2010
Amount: Total settlement of $8,694,846
Plaintiffs’ attorneys: John Jensen and Mark McGrath, both of Jensen McGrath Podgorny (Research Triangle Park)