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Our Case Summaries

1. Patterson

Propane Explosion and Fire – Lawsuit Against Propane Company

On November 23, 2009, a horrific explosion awakened six occupants of a home in Greenbrier County, West Virginia. This explosion blew the home apart, heaving the occupants into the air before they crashed back down in the fiery debris. All six occupants survived, but with severe life-changing physical and emotional scars. Initially, the news media incorrectly reported that an illegal meth lab being operated at the home caused the explosion. Ultimately, the State Fire Marshal concluded the explosion was caused by a propane leak, but the source of the leak could not be identified. Unfortunately, our clients were faced with a situation where most people in the community believed initial media reports of a meth lab.

The owner of the home, Terry Patterson, contacted Heavens Law Firm and we commenced representation of Mr. Patterson and all other victims of the explosion. Through investigation we learned that the home had not been using propane for several years before the explosion. The 325-gallon LP gas tank that was located outside in the yard of the Patterson property had been placed there years earlier when a previous owner utilized propane appliances. When that previous owner sold the property, the propane appliances were removed and the propane company never came to the property to remove the LP gas tank. Subsequent investigation showed that LP gas remained in the tank after the explosion and that there was an underground propane line running into the home.

When first responders arrived at the scene of the explosion, they testified that they were able to turn the valve on the top of the LP gas tank slightly, suggesting that it may not have been completely closed. Because of the complete destruction of the home, it was not possible to identify the specific leak that caused the explosion inside of the home; it was only possible to say that it was a gas-fed explosion and that the LP gas tank was the only source of gas at the property. The State Fire Marshal concurred with our private experts on this critical point, and ruled out any illegal activity on the part of our clients.

Because of the total destruction of the home, we could not identify a specific gas leak inside the home. That left us with two legal theories. One theory was that the propane company was negligent in leaving the LP gas tank on the property after the contract with the previous property owner expired. We argued that, but for their negligence in leaving the tank at the property, the explosion would not have occurred. The second theory was that the propane company’s LP gas tank constituted a trespass of chattel on the property of Mr. Patterson and that the propane company should be strictly liable for the harm caused by the instrumentality (LP gas tank being the chattel) constituting trespass, irrespective of the cause of the leak.

The insurance companies for the propane companies hired major national law firms and their lawyers mounted a vigorous defense that relied primarily on the theory that the intervening or superseding criminal act of a third party caused the explosion. The defendant’s lawyers argued that a third party must have opened the valve on the 325 gallon LP gas tank outside of the home just before the explosion. They focused on a disgruntled ex-boyfriend of one of the female victims who had been at the home the night before the explosion and had been involved in an altercation at the home. The defendants’ lawyers argued that the disgruntled ex-boyfriend opened the valve on the LP gas tank and caused the LP gas to enter the home, resulting in the explosion. Under the law, the propane company could potentially escape liability if they could show that an unforeseeable criminal act was the cause of the leak and explosion. The law does recognize that defendants are usually not responsible for unforeseeable intervening or superseding criminal acts. However, in this case, the West Virginia State Police investigated and cleared the ex-boyfriend after he passed a polygraph examination. We were, therefore, in a position where the West Virginia State Fire Marshal agreed with our experts that LP gas caused the explosion and the West Virginia State Police agreed that there was not sufficient evidence to establish that an unforeseeable intervening or superseding act caused the LP gas leak.

In litigation, we uncovered documents showing a prior occupier of the property had requested that the propane companies remove the LP gas tank. We also uncovered documents showing the Mr. Patterson had declined propane gas service from the defendants. Mr. Patterson also said he asked the propane companies to remove the LP gas tank. When we took the depositions of corporate representatives, they asserted that the reason that they did not remove the tank was that it was not feasible because of the location of the tank. However, in another deposition, a former driver for the companies stated that the companies had an unwritten policy of leaving LP tanks at properties in hopes that new property owners or renters would continue to utilize their services. Essentially, we had evidence that the companies left LP gas tanks at properties after contracts expired or customers moved as a business practice to generate profits.

Our clients suffered serious damages as a result of the explosion. However, they also suffered numerous indignities, such as being suspected of running a drug operation. During the litigation, the defendants continued to float the meth lab theory and other theories that cast our clients in a negative light. Fortunately, we were able to vindicate our clients through extensive investigation and discovery.

Result: Substantial Confidential Settlement On Behalf of All Six Clients.

Patterson, et al., v. Diversified Energy Company d/b/a Highland Propane Company, RGC Resources, Inc., Inergy LP, and Inergy Propane LLC d/b/a Highland Propane Company, Circuit Court of Greenbrier County, West Virginia, Civil Action No.: 12-C-100

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2. Lancaster

Work Injury – Explosion and Fire Marcellus Shale Natural Gas Well Pad Site – Third Party Claim

We successfully pursued third-party work accident claims for Richard Lancaster and Frank Lancaster. These men were injured as a result of an explosion and fire at a Marcellus Shale well pad site. Chesapeake Energy, Signal Completion Services and H&H Oilfield Services were engaged in a Marcellus Shale natural gas well drilling operation in Avella, Pennsylvania, and our clients were in the scope of their employment with BBU Environmental Services on the “Joseph Powers” well site. (http://www.bizjournals.com/pittsburgh/blog/energy/2011/02/marcellus-fire-at-chesapeake-well-site.html).

Chesapeake, Signal and H & H were conducting flow back testing without properly controlling natural gas vapors and condensate, resulting in the vapors and condensate exploding and catching on fire. The companies failed to utilize natural gas and condensate vapor meters to monitor the existence and amount of gas vapors in the atmosphere, and the companies failed to equip workers on the site with such meters. We retained experts who opined that the companies violated industry safety standards in their operation of the Marcellus Shale well pad site.

We sued the defendants in Kanawha County, West Virginia, despite the fact that the explosion and fire occurred in Pennsylvania, because our clients’ employer and H&H were both West Virginia based companies. Chesapeake was unsuccessful in its efforts to dismiss our case and move it to Pennsylvania on forum non-conveniens grounds. (https://en.wikipedia.org/wiki/Forum_non_conveniens) There was also an issue of spoliation of evidence because the defendants failed to preserve the well pad site for our inspection, despite receiving written notice from us requesting preservation of the site. (https://en.wikipedia.org/wiki/Spoliation_of_evidence)

Chesapeake was cited by Pennsylvania authorities in relation to the explosion and fire and fought hard to prevent us from obtaining public records reflecting the citations and fines imposed on them. We were forced to file suit in Pennsylvania to force production of the records under the Freedom of Information Act. (http://www.foia.gov/) Once the public records were obtained, it was clear that Chesapeake had admitted its wrongdoing to government authorities, while asserting in our case that it had done nothing wrong.

Our clients suffered severe physical and psychological injuries as a result of this fire and explosion. Their damages could have been easily avoided if the companies had employed relatively low-cost safety measures to prevent and detect unsafe levels of gas and condensate vapor.

We prepared a settlement video on this case and that settlement video is posted on our web site. (Insert link to video) We encourage you to review the video because it will give you a good idea about the level of commitment we make to our clients and their families.

Result: Substantial confidential settlement on behalf of our clients.

Richard Lancaster and Frank Lancaster v. Chesapeake Appalachia, LLC., H & H Oilfield Services, LLC., and Signal Completion Cervices, LLC.,

Circuit Court of Kanawha County, West Virginia, Civil Action No.: 11-C-694

3. Charles Kidd

Wrongful Termination – Workers Compensation Discrimination and Retaliation

Our client, Charles Kidd, was terminated by EXCO, a Texas-based gas well company, after twenty years of employment. His termination followed a work accident and his filing of a workers compensation claim. When Mr. Kidd contacted us, he stated that he was told the reason for his termination was that he had two other work accidents within twelve months and that a third accident put him in violation of company policy. However, when he pointed out that he only had one other accident within twelve months, EXCO said it terminated him for failure to timely report his work accident. Under West Virginia Code §23-5A-3(a) an employer may not terminate an employee in retaliation for filing a workers compensation claim and we sued EXCO alleging that they did just that.

EXCO’s conflicting information as to the reason(s) for Mr. Kidd’s termination was a red flag. When employers give conflicting reasons for a termination, it can mean that the reasons are a mere pretext for a hidden discriminatory or retaliatory motive. In this instance, Mr. Kidd’s company ATV rolled over on him while he was tending an EXCO well in rough terrain. He immediately called his supervisor to report a serious leg injury. It was late on a Friday and the supervisor told Mr. Kidd not to report the accident, but rather to go home to see if the leg felt better over the weekend. The leg injury, however, got worse and Mr. Kidd had to report to a hospital emergency room on Saturday. On the following Monday, he notified his employer that he needed to make a workers compensation claim. At that point, EXCO notified him that they were “investigating” the incident.

EXCO notified Mr. Kidd that it had concluded its investigation and that he was being terminated for being in violation of company accident policy (3 accidents within 12 months). The supervisor to whom Mr. Kidd reported the accident on the day of the accident was suspended for not timely reporting the accident to EXCO, but kept his job. Mr. Kidd came to us and after hearing his story and reviewing the documents provided to him by EXCO, we immediately filed suit against EXCO for workers compensation discrimination under West Virginia Code §23-5A-3(a).

In discovery, we were immediately able to establish that Mr. Kidd had not violated company accident policy. Of the other two accidents in which has involved, only one occurred within the company’s 12-month time frame. Therefore, terminating Mr. Kidd, while only suspending the supervisor who instructed Mr. Kidd to not report his accident, constituted disparate and unfair treatment. We argued that the only explanation for terminating Mr. Kidd and not terminating the supervisor was Mr. Kidd’s reportable workers compensation accident that would increase EXCO premiums.

In litigation, EXCO asserted Mr. Kidd was terminated for unsafe practices. However, EXCO’s own internal report on Mr. Kidd’s rollover accident showed that it was not Mr. Kidd’s fault and that EXCO had been on notice of the need to improve conditions for its gas well tenders to eliminate the conditions that caused Mr. Kidd’s rollover accident. Based exclusively on paper discovery in the case, we were able to put together a settlement demand report that caused EXCO to request early mediation so as to avoid having its corporate representatives placed under oath in depositions.

Our economist, Dan Selby, prepared a report putting Mr. Kidd’s net present value of lost income and benefits at $741,612.00. Mr. Selby also examined the financial position of EXCO Resources, Inc., for the purpose of permitting us to seek punitive damages. We cited the case of Peters v. Rivers Edge Min., Inc., 224 W.Va. 160, 680 S.E.2d 791 (2009), which sets forth an analysis of West Virginia law pertaining to the award of punitive damages in employment retaliation cases arising under West Virginia Code §23-5A-3(a). Based on EXCO’s financial position, as set forth in Mr. Selby’s report, we argued that EXCO could easily pay a punitive damage award based on a multiple of five to ten times the $741,612.00 economic loss suffered by Mr. Kidd.

Wrongful termination cases are unique because the loss of a job not only has dire economic consequences, but also serious psychological implications. The self-image of many people is tied up in what they do for a living. When that self-image and the camaraderie of relationships with co-workers, especially in jobs that people have held for many years, is taken away, it can devastate a person’s life. The circumstances that give rise to this case turned the lives of Charles Kidd, his wife, Vickie, and their family, upside down. We conveyed to EXCO those human, emotional and psychological harms and losses.

Result: Substantial Confidential Settlement.

CHARLES W. KIDD v. EXCO RESOURCES, LLC, Circuit Court of Wyoming County, West Virginia, Civil Action No.: 13-C-196

4. Hale

Work Injury – Third Party Claim

Our client, Betty Hale, was working for Aramark at the Southwestern Regional Jail in West Virginia on October 6, 2006, when a 300lb mixer toppled from a wheeled cart and landed on her foot. Ms. Hale lost several toes in the incident.

Screen Shot 2016-04-20 at 11.42.45 AMMs. Hale contacted us because she was having problems with the workers compensation insurer not wanting to cover her medical care. We straightened that out for her. However, when we investigated her incident, we determined the Ms. Hale had a potential third party claim against the West Virginia Regional Jail Authority (“Jail) based on the facts of the incident.

The State of West Virginia had a contract with Aramark to run the Jail kitchens in all of the Regional Jails throughout the State. This process required an Aramark supervisor to supervise inmates in the preparation and serving of meals. The equipment was provided by the Jail, including an industrial mixer perched on a wheeled cart.

On October 6, 2006, Ms. Hale was wheeling the mixer on the cart off of a metal grate in the kitchen floor where the mixer had been hosed off. When one of the wheels on the cart became lodged on the uneven surface created by the lower sitting metal grate and higher sitting tile floor, the cart got stuck. An inmate then came to assist Ms. Hale and picked up the opposite side of the cart, toppling the mixer, which landed on Ms. Hale’s foot and severely injured her.

When we contacted the Jail’s insurance company, they immediately denied liability and blamed Ms. Hale for her injury. We then filed suit. We discovered that the mixer Screen Shot 2016-04-20 at 11.42.36 AMhad been unbolted from the wheeled cart prior to Ms. Hale’s injury because the Jail changed mixers and never re-bolted the new mixer to the cart. The Jail’s lawyer’s asserted that the mixer was not bolted to the cart because the cart was not supposed to be moved.

We hired a forensic engineer who identified a violation of building safety code that caused the cart to get lodged between the tile floor and metal drainage grate. By code, walking surfaces are required to be even or not to exceed ¼ inch. In this case, the metal drainage grate was sitting more than ¼ inch below the surface of the tile floor, creating an uneven surface the broke the rule. This uneven floor surface caused the wheels on the cart to get stuck. Thus, we argued that the proximate cause of the incident was the code violation.

Once we identified the code violation, the Jail’s lawyers recruited an inmate to argue that Ms. Hale was the person that lifted the cart. This tactic of using an inmate to testify against Ms. Hale, combined with the argument that mixer was not be wheeled around the kitchen, despite being perched on a wheeled cart, proved to be folly. The jury rejected the Jail’s tactics and returned a verdict of $827,000 for Ms. Hale.

Prior to the trial, the Jail’s insurance company would not offer any more than $50,000 to settle the case. After the verdict, with pre-judgment and post-judgment interest, Ms. Hale’s verdict was nearly one million dollars.

Betty Jean Hale v. West Virginia Regional Jail and Correctional Facility Authority, et al., Circuit Court of Logan County, West Virginia, Civil Action No.: 07-C-193

5. University Employee Exposed to Infectious Animal Lab Waste

Our client was responding to a complaint of a leak at the animal research lab of University of Pennsylvania. As result he came into contact with secretions from macaque monkeys, which carried the Herpes B virus. Due to this exposure, our client was required to undergo medical treatment with prophylactic medications to prevent infection. He developed allergic reactions to the medications used for treatment of his potential exposure, and, as a result he was admitted to the intensive care unit at the Hospital of the University of Pennsylvania, for inpatient desensitization. Fortunately, our client physically recovered without any infection.

Through investigation and discovery, we learned that the leak was the fault of a contractor that had installed the drainage system for the animal lab. We filed a third party negligence lawsuit against the contractor. Our client not only incurred medical bills and lost wages, but he suffered serious anxiety and emotional distress because of his fear that his exposure to the virus to which the animals has been exposed would result in his own infection. The defendant and its insurance company initially attempted to downplay this aspect of our client’s damages, but we were able to effectively convey that this aspect of damage, while perhaps economically intangible, was the most serious damage in the case. Result: Substantial confidential settlement for our client that was well in excess of what he recovered through his workers compensation claim.

C.H. v. Binsky & Snyder, LLC.

Court of Common Pleas, Philadelphia County, Pennsylvania

 

6. Sisolack (Fire)

Propane Explosion and Fire Destroys Small Local Business

On March 8, 2013, Sisolack Truck Repair was totally destroyed by an explosion and fire at its facility in Belington, West Virginia. The explosion was caused by the ignition of LP gas venting from a Southern States LP gas truck being repaired at Sisolack Truck Repair. Initially, Southern States and its insurance company blamed business owner John Sisolack for the explosion and fire, asserting that he was negligent in placing the propane truck inside his building with a space heater operating.

John Sisolack initially called our firm because of difficulty he was having with his business insurer, Erie. While we were in a lawsuit against Erie (a suit in which we obtained a significant settlement for Mr. Sisolack), we were investigating the origin and cause of the explosion and fire. Through the use of the Freedom of Information Act (FOIA), we obtained U.S. Department of Transportation (USDOT) documents showing that Southern States had been fined for over-filling its truck with LP gas. Our expert concluded that the over-filling of the truck with LP gas caused the propane truck to vent once it was placed inside of Sisolack’s garage, which was warmer than ambient temperature. When the LP gas vented from the propane truck, anything inside of the building that was an ignition source could have caused the explosion. In this instance, it was likely Mr. Sisolack’s space heater.

Despite being presented with evidence that its over-filled propane truck was the cause of the explosion and fire (our expert demonstrated that an LP gas truck filled to regulation would not have vented inside of the garage), Southern States doubled-down on blaming Mr. Sisolack. They falsely asserted that they had instructed Mr. Sisolack to not place the propane truck inside his garage and that it was primarily Mr. Sisolack’s failure to follow their instructions that caused the explosion and fire. Our firm was able to establish that this assertion was false. In reality, Mr. Sisolack had worked on Southern States propane trucks inside of his garage for 15 years prior to the explosion in the presence of Southern States employees who never objected to the propane trucks being brought inside. We took the deposition of Southern States’ former manager (terminated by Southern States after the explosion) and he admitted that Mr. Sisolack was a highly competent man of the highest integrity who never lied to him in the 15 years that Mr. Sisolack did business with Southern States. This was hardly the profile of an incompetent, reckless or dishonest man.

In discovery in our lawsuit, we were able to establish evidence that Southern States routinely over-filled propane trucks to get more deliveries from its drivers per trip. Over-filling trucks with LP gas saved them money by limiting the time their drivers spent driving back and forth to their LP gas filling facility. Southern States strongly resisted our efforts to obtain LP gas fill tickets for all of their trucks, but the Court ordered them to produce the LP gas fill tickets. Once produced, the LP gas fill tickets showed that Southern States had over-filled trucks 139 times in the year prior to the explosion. Since the USDOT fine on one incident of LP gas truck over-filling was $12,000, we presented Southern States with an economic report setting forth our intention to seek punitive damages in excess of $1,668,000 ($12,000 x 139).

In addition to punitive damages based on over-filling of its LP gas trucks, we also intended to seek punitive damages for Southern States’ attempt to conceal evidence. We learned from a local fire chief on the fire scene that a Southern States employee attempted to retrieve the LP gas fill ticket from the truck, stating that it contained information that “no one needs to see.” We were prepared to present this evidence from the local fire chief to show that Southern States had attempted to conceal incriminating evidence and would have done so had it not been for the local fire chief who ordered the Southern States employee out of the fire scene area.

The settlement of this case vindicated our client, John Sisolack, on a personal level. In many ways, Mr. Sisolack’s self-identity was directly tied to the reputation he had built up over 20 years as a businessman in his local community. He felt strongly that Southern States had called his reputation as a competent and honest businessman into question. As with all of our clients, we hope our work for him and his wife, Lisa, helped them in the process of healing and gave them some faith that our legal system can work for people who have been treated unfairly. Result: Substantial confidential settlement.

Sisolack Truck Repair v. Southern States Cooperative, Incorporated, Circuit Court of Randolph County, West Virginia

7. Sisolack (Insurance Bad Faith)

Insurance Bad Faith Settlement for Local Business Owner

On March 8, 2013, Sisolack Truck Repair was totally destroyed by an explosion and fire at its facility in Belington, West Virginia. The company owners, John and Lisa Sisolack, were insured by Erie Insurance Company. The Sisolacks contacted our firm after having difficulty with Erie.

We immediately retained a contractor and insurance expert to review Erie’s claim handling and discovered the difference between the Erie dwelling repair estimate and the actual cost to repair the plaintiffs’ structure was $48,598.38. We also discovered that Erie failed to disclose to the Sisolacks that they had lost income coverage of $25,000. The Sisolacks were being short-changed about $73,598.38.

We sued Erie and its insurance adjuster for breach of contract, bad faith and fraud. As standard practice we conducted research on jury verdicts in first party insurance breach of contract/bad faith cases in West Virginia and provided that information to Erie. Through our insurance expert, we showed Erie how they violated various industry regulations and standards.

There are two sides to every story, but insurance industry regulations and standards are a constant. We focused on insurance industry regulations and standards to lead Erie to the conclusion that they could not win in court. We showed Erie what juries were awarding in such cases. Result: Substantial confidential settlement for our clients that was well in excess what Erie would have paid if Erie had simply followed the rules.

Sisolack Truck Repair v. Erie Insurance Company, Circuit Court of Kanawha County, West Virginia

8. Sherry

Apartment Fire – Fatality – Smoke Detector – Ingress/Egress Issues

On July 12, 2014, Richard Sherry died in a fire at his apartment complex. Mr. Sherry was a Veteran living on disability benefits. He had several brushes with the law and was on probation at the time of his death. He was also a recovering alcoholic. Other lawyers had turned down the case before we agreed to represent his family.Screen Shot 2016-04-20 at 3.32.55 PM

Our experts identified the poor condition and maintenance of electrical conduit in the ceiling area of the second floor hallway in the structure as the caused of the fire. The landlord’s failure to properly and safely maintain the electrical service and conduit in the structure was documented by our experts. (Cindy, Send Alex a copy of the photo of the the crazy wire situation in the basement of the apartments that we attached to the settlement demand).

Our experts identified multiple violations of the NFPA Code and State Fire Code. The smoke detector in Mr. Sherry’s apartment was not properly installed and maintained. The placement of the smoke detector on a wall instead of a ceiling was a violation of manufacturer’s recommendations. (Cindy. Send Alex a copy of Smoke detector on wall) Furthermore, there was no smoke detector located at the entrance of the bedroom in Mr. Sherry’s apartment and this was a violation of state law. W. Va. Code §87-1-11.

We were able to show that the one smoke detector in Mr. Sherry’s apartment was unlikely to operate under the circumstances even assuming a fully charged battery. Our investigator took statements from all witnesses and no one heard a smoke detector sound emanating from Mr. Sherry’s apartment during the fire incident or fire suppression efforts. We documented that “NFPA 72: National Fire Alarm and Signaling Code” is referred to by most manufacturers by reference in their installation instructions and user guides. The 2007 edition states in part:

Spot type smoke detectors shall be located on the ceiling not less than 100mm (4in.) from a sidewall to the near edge or, if on a sidewall, between 100mm and 300mm (4in. and 12in.) down from the ceiling to the top of the detector. (5.7.3.2.1).

Some manufacturers include an installation diagram that is derived from the NFPA, and that mirrors the explanation given in 5.7.3.2.1. This is contained in the appendices (Figure A.5.6.3.1). An improperly placed smoke detector could cause a delay in, or failure to, properly indicate the presence of smoke. This is directly related to airflow characteristics during a fire situation. An explanation cited for this came from an NFPA “interpretation” of the code. This explanation states:

“Since smoke and deadly gases rise, alarms should be placed on the ceiling at least 4 inches from the nearest wall, or high on a wall, 4-12 inches from the ceiling. This 4-inch minimum is important to keep alarms out of possible “dead air” spaces, because hot air is turbulent and may bounce so much it misses spots near a surface. Installing alarms near a window, door or fireplace is not recommended because drafts could detour smoke away from the unit. In rooms where the ceiling has an extremely high point, such as in vaulted ceilings, mount the alarm at or near the ceiling’s highest point.”

BRK Electronics manufactured the smoke detector in Mr. Sherry’s apartment, however the date of manufacture was not legible due to fire damage. It appeared to be a Model 83R. The manufacturer’s website showed no record of that model, likely due to its age, or that its manufacture has been discontinued. Installation recommendations for a pre-2010 BRK smoke detector (Model 7010B) mirror the aforementioned NFPA recommendations. Those recommendations were not met in this instance.

BRK Electronics and Kidde Fire Safety appeared to be the major suppliers of smoke detectors for Residential/Homeowner/DIY installation. Both manufacturers clearly indicate that NFPA 72 should be followed in the installation of their products. In addition, they both recommend that the local fire department or AHJ be contacted for current installation requirements. Although we could not find specific information on smoke detector installation from the West Virginia State Fire Marshal’s Office, general discussion of smoke detectors in the State Fire Code advises that NFPA 72 and the manufacturer’s recommendations should be followed. Further, CPSC publication 559: Smoke Alarms-Why, Where, and Which (see attached document) advises mounting 6”-12” below any ceiling.

Screen Shot 2016-04-20 at 3.33.05 PMMr. Sherry’s smoke detector was installed 3-1/2 inches below the drop ceiling and about 9 inches from the door. When the door was open it partially covered and impacted the smoke detector, possibly damaging it in a way that could have caused it to malfunction. Further, 9 inches from the door qualified as “near” in the language of NFPA 72, also impacting the smoke detector’s ability in a negative fashion. These parameters did not meet NFPA 72 recommendations, and therefore, they did not meet the manufacturer recommendations either.

The landlord was responsible for proper installation and placement of the smoke detector under the manufacturer and NFPA guidelines. In this instance the landlord violated the rules on proper installation and placement of the smoke detector. Our fire origin and cause expert was prepared to testify in support of all of the standards we identified .

The Energizer battery removed from Mr. Sherry’s smoke detector carried the label “Use By 2006”. (Cindy, Provide Alex with Photo of Battery, attached as Exhibit E). This indicates the battery was at least 5 years beyond its manufacturer recommended end-use date, and possibly 6 years. Smoke detector manufacturer literature recommends replacing the battery no later than every twelve months, and CPSC Release Number: 08-211, dated March 6, 2008, entitled CPSC Daylight Saving Time Alert: Working Smoke Alarms Are Key to Surviving Home Fires, recommends replacement every year on the Daylight Savings Time date. The battery in Mr. Sherry’s detector was well beyond any of these criteria, and most likely would not have allowed the detector to function properly, if at all. The landlord was responsible for replacing smoke detector batteries every twelve months. In this instance the landlord violated that rule at least 4 times.

We provided the landlord’s insurance company and lawyers with Fire Safety Inspection Report of the West Virginia State Fire Marshal’s Office. The Fire Marshal noted as follows:

All existing apartments shall have approved self-contained smoke alarm located at the entrances to bedrooms. Citing SFC 87-1-11.

There was no smoke detector located at the entrance of the bedroom in Mr. Sherry’s apartment. The landlord, by statute, was responsible for placing a smoke detector at the entrance of the bedroom in the apartments and in this instance the landlord violated that rule. Our expert was prepared to testify that, in his experience, the lack of a smoke detector at the entrance of a bedroom when a fire occurs during hours where people are normally sleeping often results in fatalities, as was the case in this instance.

Even assuming that Mr. Sherry’s smoke detector was working and he was able to get out of the apartment into the hallway, he would have been confronted with several other hazards created by the landlord’s other rules violations that are cited in the Fire Marshal’s Fire Safety Inspection Report. Our expert provided us with a report addressing the practical implications of the egress Code violations identified at the apartments. Our expert was prepared to testify as to how, in his experience, lack of illumination and insufficient egress in apartment buildings often lead to serious injury and death where people are able to exit individual apartments, but are confronted with such code violations in common areas.

Multiple rules violations pertaining to the landlord’s apartments were recorded in the Fire Marshal’s Fire Safety Inspection Report. The Fire Marshal identified the following rules violations: Lack of 1 hour fire resistance rating, lack of sprinkler system and lack of automatic fire detection system (NFPA 101 31.1.2.3); Insufficient egress from dwelling units (NFPA 101 31.2.1.1; NFPA 101 7.1.3.2.1); Usable spaces within exist enclosures are prohibited (NFPA 101 7.2.2.5.3); Every dwelling unit shall have access to not less than two separate exits remotely located from each other (NFPA 101 31.2.4.1; NFPA 7.4); No common path of travel shall exceed 35 feet (10.7 m) in buildings not protected throughout by an approved supervised automatic sprinkler system installed in accordance with 31.3.5 (NFPA 101 31.2.5.3.1); Dead end corridors shall not exceed 50 feet (15 m) NFPA 101 31.2.5.4); Means of egress shall be illuminated (NFPA 101 31.2.8; NFPA 7.8); Interior wall finishes must comply with code (NFPA 101 31.3.3.2); All electrical outlets and junction boxes shall be covered in accordance with NFPA 101 11.1.2); All existing apartments shall have approved self-contained smoke alarm located at the entrances to bedrooms (SFC 87-1-11).

On page 8 of the Fire Safety Inspection Report it stated “SUBMIT PLAN OF CORRECTIONS WITHIN 15 DAYS OF THIS REPORT.” In this instance, the landlord never submitted a plan.

A person properly alerted by a smoke detector will make efforts to quickly exit a structure. In this instance, the physical evidence is consistent with the lack of a smoke detector at the entrance of Richard Sherry’s bedroom and an improperly installed and inoperable smoke detector at the entrance to the apartment. Mr. Sherry never made it out of his apartment because there were not properly installed and maintained smoke detectors to timely alert him of the fire. The failure of the landlord to ensure the proper installation and operation of smoke detectors in Mr. Sherry’s apartment, including updating batteries in the one smoke detector in Mr. Sherry’s apartment every twelve months, constituted rules violations that were proximate causes of Mr. Sherry’s death. Moreover, even if Mr. Sherry had been able to escape his apartment, he would have been confronted with several other Code violations impacting his ability to escape the apartment building.

Mr. Sherry’s Death Certificate stated his cause of death as “smoke and soot inhalation.” According to the autopsy report he died because of smoke from the fire. The autopsy photos of Mr. Sherry’s body did not show significant burn injuries and the autopsy report did not identify burns as a contributing factor in his death. Therefore, properly installed and functioning smoke detectors would have saved his life, assuming he could have overcome the landlord’s lack of illumination and insufficient egress Code violations.

Mr. Sherry’s autopsy report stated, in part, “[n]o contributory drug/alcohol toxicity is identified.” Mr. Sherry was not impaired by any drugs or alcohol in his ability to be awakened and/or to navigate his way out of the structure. There was no credible evidence of comparative fault on the part of Mr. Sherry.

Because of the horrible condition of the apartment complex and multiple code violations, we sought punitive damages on behalf of Mr. Sherry’s estate. Once we presented our settlement demand to the landlord’s insurance company and lawyers, they agreed to settle for their policy limit.

Result: Substantial Confidential Settlement.

NANCY SHERRY, Administrator of the Estate of Richard Sherry, v. JOHN DASKAL, DENVER DEHAVEN, and APOTHECARY RENTALS

CIRCUIT COURT OF MINERAL COUNTY, WEST VIRGINIA

9. Fultz

Work Injury – Fall Accident – Third Party Claims Against Contractors

Our client, Glenn Fultz, was injured in a fall accident while at work on May 14, 2013. Once we became involved in the case, we had to sort through a myriad of issues, including the role of multiple contractors on the job site. When we determined the role each company played and assembled a team of experts to address the work safety and medical issues, we were able to resolve the case for Glenn and his wife, Constance.

In 2011, Northern Management Services (“NMS”) was contracted by the General Services Administration (“GSA”) to perform inspection and maintenance of 17 federal buildings, including the Parkersburg Federal Building, pursuant to the Facility Engineering, Operations and Maintenance Services contract entered into by NMS. This contract required that NMS inspect and maintain the premises all the way to the property line and including interior and exterior architectural and structural system components.

A portion of the property included an air intake shaft that allowed airflow necessary for the HVAC system in the building. This shaft was 14 feet deep and was covered by several pieces of metal grating that allowed airflow to pass through the shaft. Despite the grating being a structural component of the premises and accessing the shaft that included using the grating as a walking working surface, NMS never made any determination regarding the structural stability and condition of the support system suspending the grating over the 14-foot deep pit.

In 2012, Henderson Contractors was contracted by the GSA for approximately $1.4 million to perform an Electrical Distribution Replacement and Upgrade project. Henderson then subcontracted the electrical portion of the work to B. Armstrong Electrical Services (“B. Armstrong”), with Henderson, as the prime contractor, retaining safety responsibility for the entire project. Subsequently, B. Armstrong subcontracted the construction of a concrete pad for electrical components to rest upon to B&F Contracting (“B&F”).


On May 14, 2013, our client, Glenn Fultz, and his co-worker, Rick Potter, were assigned and directed by B&F’s management to supply concrete to the electrical room using the air intake shaft as the means of access. This necessitated the use of the air intake grating as a walking and working surface, despite none of the defendants making any determination as to the structural stability of the grates. Messrs. Potter and Fultz were required to remove one of the 9 foot by 2 foot sections of grating to run a pump hose down the shaft, thereby creating an 9’x2’ hole. Despite this hole being created, Messrs. Potter and Fultz were never trained nor instructed on the use of fall protection, namely a hardness and lanyard.

As a result of the deteriorated state of the support structures suspending the grating above the air intake pit which were never properly inspected and examined, the unstable supports broke free as Rick and Glenn were attempting to replace the grating after the pump hose had been removed. Because they were neither provided with nor required to wear any type of fall protection, as the grating collapsed, they fell uncontrolled onto the concrete floor of the air intake shaft where the 315 pounds pieces of grating rained down upon them causing Rick and Glenn both to suffer permanent and disabling injuries.

In the days that followed, individuals from NMS and B. Armstrong actually made an endeavor to perform a thorough examination of other grates directly adjacent to the one that collapsed beneath Rick and Glenn. Not surprisingly, some of these grates, too, were found to be unsafe and in a state of deterioration such that they had to be repaired.

Northern Management failed to not only protect its own employees when they were exposed to a potential fall hazard when walking/working upon the air intake grate, but also failed to train them on the requirement and procedure to perform adequate hazard assessments to maintain the premises in a safe condition so as to not pose a hazards to persons visiting or performing work on the property.

Such negligent conduct was clearly demonstrated through the lack of training provided to Northern Management’s employees, cultivating a mindset whereby employees would follow a computer generated checklist without regard to conditions readily observable had Northern Management followed the contract and its own company safety policy.

OSHA issued citations in response to the incident:

29 CFR 1926.501 regulates in what situations fall protection is required and what actions an employer must take to minimize exposure of its employees to fall hazards. Among the portions which were pertinent to this case were as follows:

1926.501(a)(2) The employer shall determine if the walking/working surfaces on which its employees are to work have the strength and structural integrity to support employees safely. Employees shall be allowed to work on those surfaces only when the surfaces have the requisite strength and structural integrity.

1926.501(b)(1) “Unprotected sides and edges.” Each employee on a walking/working surface (horizontal and vertical surface) with an unprotected side or edge which is 6 feet (1.8 m) or more above a lower level shall be protected from falling by the use of guardrail systems, safety net systems, or personal fall arrest systems.

On May 13, 2013, Glenn Fultz was brought via ambulance to Camden Clark Hospital’s emergency room. He complained of severe pain in his left flank area and had obvious abrasions in that area. Scans revealed significant spinal fractures of the T12 vertebra and a compression fracture at L2 and L4, as well as a fracture of the spinous process at T11. Glenn was admitted for further observation to the orthopedic floor.

The following day, Glenn underwent an L2 and L4 bilateral kyphoplasty, internal fixation of T1- to L2 with a pedicle screw, posterial lateral fusion, and open kyphoplasty at T12, decompression including T12 laminectory at T11 to L1. Glenn had to endure an extensive regimen of physical therapy 5 days a week for a four-month period at Kings Daughter’s Medical Center. During the visits he engaged in rehabilitation of his back for pain management and range of motion.

Our expert, Elizabeth Davis, RN, MS, CRRN, CLCP, CRC, evaluated Glenn on August 3, 2014 in his home. After an extensive in-person evaluation and record review, Ms. Davis noted vocational impairments and loss of earning capacity, as Glenn now had permanent work restrictions.

On September 16, 2014, Glenn underwent an Independent Medical Examination by Robert Walker, M.D. Glenn continued to have numbness extending from his tailbone down both legs. Glenn had problems getting in and out of the bathtub, grooming, and even getting on and off the toilet and trouble sleeping due to back and leg pain. Dr. Walker opined that Glenn had 40% whole person impairment.

We were able to show that the evidence and testimony painted a clear picture of liability and catastrophic damages that would warrant a substantial verdict from a jury. The “I didn’t know the law” or “its not my job” defenses would not have been well-received in the face of clear law and incriminating testimony from the witnesses, including the defendants’ own witnesses. Every witness conceded the presence of a fall hazard the moment the grate was removed, and it was undisputed that no fall protection was provided to Messrs. Potter and Fultz. Likewise, there was no evidence of any type of inspection of the subject grating within 11 months prior to Messrs. Potter and Fultz’ injury. No actual determination was made as to the structural stability of the grating, as required by law.

Result: Substantial Confidential Settlement for Glenn and Constance Fultz.

GLENN FULTZ and CONSTANCE FULTZ v. B & F CONTRACTING, INC.,

A Kentucky Corporation, NORTHERN MANAGEMENT SERVICES, INC.,

an Idaho Corporation, B. ARMSTRONG ELECTRICAL SERVICES, INC.,

a West Virginia corporation, and HENDERSON CONTRACTORS CORPORATION,

an Ohio corporation,

Consolidated Civil Action No. 14-C-841, Judge Louis H. Bloom, Circuit Court Of Kanawha County, West Virginia

10. Webb

Vehicle Accident – Pedestrian Struck and Killed

Larry and Mary Webb’s 12-year-old son, Curtis, was struck and killed by a West Virginia State Trooper’s vehicle on March 22, 2008. Following the accident, the Webb family received several anonymous letters suggesting that they should retain legal counsel to have the matter investigated. It appeared that these letters must have come from someone within the ranks of the State Police or someone with detailed knowledge of the incident that could not be obtained without inside information. The Webb family initially had trouble finding a lawyer to take the case, since it would involve taking on the State Police.

Eventually, the Webb family was referred to and retained Chris Heavens. Heavens filed suit and immediately requested the video camera footage from the State Police vehicle. The State Police responded by asserting that the camera in the vehicle “malfunctioned” and that there was no sim card (data card) in the camera at the time of the accident. Had the sim card been installed, the footage of the vehicle striking Curtis Webb would have been recorded. Since the accident occurred at night in a well-lit commercial area, Heavens believed that the camera footage would prove that Curtis Webb was plainly visible to an alert driver and thus the accident avoidable (the State Police insisted that the child was not visible to the State Trooper).

Given the State Police insistence that the camera malfunctioned, Heavens then requested the Trooper’s laptop computer to determine if the Trooper was using the computer at the time of this incident or if the computer contained information relating to the accident. The State Police refused to turn over the laptop until Heavens obtained a court order requiring the State Police to produce the laptop. By the time the laptop was produced, the State Police advised that it too had malfunctioned and that the hard drive had to be destroyed because it contained confidential information of ongoing investigations on the hard drive.

Against this backdrop of questionable behavior by the State Police, the case went to trial. During trial it was learned that a coroner had witnessed a State Trooper at the accident scene retrieve a sim card from the Trooper’s State Police car, contradicting State Police assertions that there was no sim card in the camera. At this point, the insurance company for the State Police settled the case confidentially before verdict.

Ironically, during trial the State Police argued that Curtis Webb violated his parents’ curfew and rode his skateboard in the street, in clear violation of the rules he was taught. Perhaps the settlement of the case was an indication that the State Police came to realize that a 12 year old boy’s violations of rules was no less important than rule violations by adult men trained in the importance of preservation of evidence by the West Virginia State Police Academy.

In this case, Chris Heavens retained an accident reconstruction expert who recreated the conditions at the time of the accident, clearly showing that Curtis Webb would have been plainly visible to a driver paying attention to the road. Heavens also hired a computer forensic expert to examine the State Trooper’s computer and confirm that the original hard drive had been destroyed so that no data could be retrieved. These experts were instrumental in helping Mr. Heavens get the case prepared for trial and helping the Webb family prevail on behalf of their beloved, son, brother and grandson, Curtis Webb.

LARRY WEBB, as the Administrator of the Estate of Curtis Webb, v. WEST VIRGINIA STATE POLICE, et al., Civil Action No.: 08-C-1682, In the Circuit Court of Kanawha County, West Virginia.

11. Chattaroy – Propane Explosion, Spoliation of Evidence and Insurance Company Fraud – Chattaroy, West Virginia

The Heavens Law Firm specializes in fire and explosion litigation. Chris Heavens began his legal career in 1991 litigating fire and explosion cases for insurance companies seeking to recoup claim payments through subrogation. The experience Mr. Heavens gained in working for insurance companies is invaluable for the people and families represented by the Heavens Law Firm today.

In this particular case, our firm represented a group of homeowners in Mingo County, West Virginia, whose homes were damaged when a neighborʼs home exploded. Our clients had to sue the neighborʼs homeowner insurer for failing to preserve evidence and failing to preserve the explosion scene for inspection by our cleints’ experts. Essentially, the homeowner insurer of the home that exploded told our clients, “we investigated the fire origin and cause and it was not the fault of our policy holder. Trust us.” The homeowner insurer of the home that exploded disposed of critical evidence and directed that the explosion scene be leveled by a bulldozer within days, Thus, literally, our clients were left to “trust” that insurance company or hire an attorney to find out the truth.

Despite getting rid of evidence that would permit our clients to prove the origin and cause of the explosion, the insurance company refused to turn over its own explosion origin and cause documents (documents showing what its own experts said about the origin and cause when they inspected the evidence and explosion scene before destroying it) in the lawsuit we filed. This forced us to move to compel the insurance company to turn over its origin and cause documents.

The insurance company fought us in court for nearly a year, until we obtained a court order forcing full and complete disclosure of their origin and cause documents. Once the insurance company internal documents were produced, they showed that the insurance company knew within days that its own policyholders left an open gas line in the home before leaving for vacation (clear negligence). Basically, the insurance company knew it was obligated to pay liability benefits to our clients within days, but denied coverage to them and destroyed the evidence that would have permitted our clients to prove their case.

Once we established the negligence of the insurance companyʼs policy holders (known within days of the explosion), the insurance company paid its full $300,000 policy limit to our clients. However, under insurance regulations, insurance companies have a duty to make settlement offers to victims once liability becomes reasonably clear. In this case liability was reasonably clear within days of the explosion, but our clients had to hire an attorney and go through over one year of litigation in a slug fest with a powerful insurance company before getting paid.

Because of the insurance company’s violation of regulations and fraud, a confidential settlement was reached in addition to the payment of the policy proceeds.

For any people who believe in “tort reform” or passing laws to limit the amount of damages that insurance companies are required to pay in court, we have numerous stories to tell them like this Chattaroy Explosion case. Needless to say, our Chattaroy clients are not advocates of “tort reform” based on their experience in this matter.

Browning v. Woodford Transport – Retaliatory Discharge

We were retained by a truck driver in relation to his termination from employment. The driver, Sheridan Browning, was terminated following a crash of his tractor trailer tanker truck. The crash occurred when he swerved in reaction to several deer being in the road on a foggy morning at 1:00 a.m. His truck left the roadway and struck a tree. He was seriously injured in the crash and had to apply for worker’s compensation benefits.

His employer, Woodford Transport, terminated him on grounds that he destroyed company property. However, since the company had a previous similar incident where a driver was not terminated after wrecking and spilling diesel fuel into a stream, we felt that Mr. Browning’s case required scrutiny. After doing some research, we discovered that the other driver did not file a worker’s compensation claim. Since, under West Virginia law, it is illegal to terminate an employee for filing a worker’s compensation claim, we felt like we had a prima facie case of worker’s compensation discrimination.

We filed suit and conducted discovery and depositions. Woodford Transport began to change their story as things progressed. They began to assert that Mr. Browning must have fallen asleep at the wheel and, therefore, they were justified in terminating him. They also alleged that he lied on his employment application, even though they never mentioned it at the time he was terminated. In addition to all of this, they alleged he lied about the deer being in the road just prior to crashing to cover up the fact that he fell asleep.

During the deposition of the company representative, we asked why the company did not mention the issue of “sleeping at the wheel” at the termination meeting of Mr. Browning. Incredibly, the company representative said he did not want to have a “confrontation” with Mr. Browning, even though the purpose of the meeting was to terminate him. The company produced an undated and unsigned memo purportedly reflecting its belief that Mr. Browning had been sleeping at the wheel prior to the crash. This document raised suspicions in our minds as to whether it may have been drafted after Mr. Browning retained our firm.

Woodford asserted that the other driver was not terminated because the other driver did nothing wrong in crashing the company truck. However, we obtained the ECM/Black Box data from that other truck that showed the driver was speeding prior to losing control of the truck and rolling it into the stream. In addition to obtaining the ECM/Black Box data from Woodford’s other truck that rolled over, we had an accident reconstruction expert visit the scene of Mr. Browning’s crash to provide us with his opinion on Woodford’s “fell asleep at the wheel” theory. Since Mr. Browning crashed in a slight turn toward the crash site, our accident reconstruction expert opined that his truck would have been more likely to leave the road on the other side road in the curve if he had, in fact, fallen asleep.

After the wreck, Mr. Browning was bleeding and badly injured, but he could crawl from the cab of the truck before it caught on fire. Since he lost his cell phone in the cab of the truck, he limped about a quarter mile up the road to the only house in sight and asked the homeowner to call 911. We interviewed that homeowner and he told us that Mr. Browning told him that he swerved his truck to avoid deer in the road. In our minds, it seemed highly unlikely that a man in Mr. Browning’s condition would be thinking up a lie to tell this homeowner. The homeowner was listed as one of our witnesses in the case.

Eventually, Woodford and its insurance companies requested a mediation and the case was soon settled for a confidential amount that reflected the company’s serious exposure to a substantial verdict.

In these cases, people need a law firm that is experienced, smart and aggressive. Over the years, we have been in many legal wars with big corporations, insurance companies and law firms. We are relentless. We know what to do to beat them and we do it for all our clients. That is why we have so many clients referring their family members and friends to us. If you need a lawyer, get a referral from someone you trust or call us!

 

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