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Fires / Explosions

Kimberly K. Lester, as Administratrix of the Estate of Cornell Lester, v. Gilbert Distributing, Inc.

Type of Case: Wrongful Death

On December 6, 2000, Cornell Lester, Jr. (age 27) was burned to death while refueling his truck with diesel fuel. Mr. Lester was self-employed as a coal hauler and was survived by his wife and daughter. After investigating the facts and circumstances surrounding Mr. Lester’s death, Chris Heavens filed suit against the company that delivered diesel fuel to Mr. Lester’s diesel storage tank on his property. Testing of the diesel fuel revealed that there was gasoline contamination. Heavens’ expert theorized that without said contamination there could not have been ignition or a fire under the circumstances presented. Heavens alleged that defendant was responsible for the contamination was strictly liable for all damages to Mr. Lester’s wife and child. Defendant denied that it was responsible for the contamination and further asserted that the cause of the fire could not be determined. Result: $1,500,000 Settlement*.

Counsel: Christopher J. Heavens, Charleston, WV H. Truman Chafin, Williamson, WV

Coleman Tyree, et al. v. Southern States Corporation, Inc., et al., Nicholas County Circuit Court, Civil Action No.: 95-C-13

Type of Case: Negligent Fuel Delivery

Mr. and Mrs. Tyree were injured in a house explosion. The Tyrees had a well pump underneath the crawl space at their home. Their home was heated by propane and there was a slow leak in the propane line in the crawl space at their home. Over a period of months, the propane leak worsened and the Tyrees complained to the propane delivery company, Southern States, that their propane consumption and bills were increasing for unexplained reasons. Eventually, the Tyrees began to detect an odor of propane and they complained to Southern States about the odor. In response to the Tyrees’ complaints, Southern States had a technician check the propane tank and connecting line for leaks. When none were found, Southern States told the Tyrees that there were no leaks. Southern States took no action to trace the propane line running into the Tyrees’ home. One day when Mr. Tyree flushed the toilet at his home, it caused the electric well pump to operate and the electrical charge from the well pump motor caused an explosion that totally destroyed the Tyree’s home and injured them. Propane had collected in the crawl space due to the worsening leak. The Tyrees filed suit against Southern States alleging negligence. The Tyrees alleged that Southern States knew or should have known of the existence of a leak, notwithstanding the fact that no leak was found at the propane tank or connecting lines. The Tyrees alleged that Southern States had a duty to either trace the line to find the leak or to stop delivering propane until the leak was repaired. Southern States countered that they were not aware of the leak and not responsible for propane lines in the Tyrees’ home. Southern States stated that the inspection of internal lines required a service call and separate charges that the Tyrees never requested. Result: Confidential Settlement.

Counsel: Christopher J. Heavens, Charleston, WV

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

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.

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 cause 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.

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. 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.

Mr. 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”.  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

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

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

Explosion Case With Spoliation of Evidence Issue

Liberty Mutual Insurance Company runs television advertisements preaching the virtues of personal responsibility, but some folks (the plaintiffs represented by the Heavens Law Firm) had an experience with Liberty Mutual that caused them doubt Liberty Mutual’s commitment to “personal responsibility.”

Our clients suffered significant property damage when their neighbor’s house exploded as a result of a natural gas leak on April 2, 2009. Liberty Mutual insured the house that exploded and had experts on the ground to investigate the cause of the explosion within a day. Soon after determining the cause (which they refused to disclose to our clients), Liberty Mutual released the property to its policyholders and authorized them to bulldoze the property, which they promptly did. Once the property was bulldozed, it made it impossible for the plaintiffs to have their own experts determine the cause and origin of the explosion.

Liberty Mutual denied the claims of the plaintiffs, asserting that their policyholders did not cause the explosion and pointed the finger of blame at the gas company. The plaintiffs then hired Heavens Law Firm. Heavens Law Firm filed suit on July 9, 2009. In the lawsuit, Liberty Mutual continued to deny liability on behalf of its policyholders. Liberty Mutual refused to fully respond to interrogatories and requests for production of documents, specifically those aimed at determining the conclusions reached by Liberty Mutual experts with regard to the cause and origin of the explosion. Liberty Mutual asserted that its expert findings were “privileged and confidential.” Essentially, Liberty Mutual failed to preserve the explosion scene, preventing the Plaintiffs from investigating the cause and origin of the explosion, and then refused to produce the information and documents that they possessed on the conclusions their experts reached before the explosion scene was bulldozed.

Liberty Mutual’s Fraud Exposed by Heavens Law Firm’s Persistence

After months of battle with Liberty Mutual’s lawyers, the Heavens Law Firm filed a motion to compel against Liberty Mutual and the court entered an Order on November 11, 2010 requiring Liberty Mutual to produce its cause and origin documents. Despite being ordered by the court to produce said documents, Liberty Mutual continued to delay until February 4, 2011, when Liberty Mutual finally produced the documents. The cause and origin documents revealed that Liberty Mutual had identified a gas line left open by its policyholders as the cause of the explosion. The clear inference from the cause and origin documents was that Liberty Mutual recognized the liability of its policyholders for the Plaintiffs damages within days of the explosion. The documents showed that Liberty Mutual engaged in fraud. Once this fraud was exposed, Liberty Mutual extended a $300,000 policy limit offer to the Plaintiffs. Had Liberty Mutual lived up to its “personal responsibility” mantra, that money would have been paid to the plaintiffs without the plaintiffs having to hire a lawyer or file a lawsuit.

Spoliation of Evidence and Appellate Issues

To use a football analogy, Heavens Law Firm stripped the ball from Liberty Mutual’s grip as they tried to take it in for a fraudulent touchdown. However, Heavens Law Firm was not content with the payment of the $300,000 policy limit and argued to the court that a spoliation of evidence case should be permitted to go forward against Liberty Mutual despite payment of the policy limit. That legal issue is now on appeal, but the plaintiffs have received their share of settlement proceeds from the Liberty Mutual $300,000 payment.

Lessons Learned

This case points to the importance of people immediately contacting lawyers when they, their family members or their property have been harmed. If the plaintiffs in this case would have contacted Heavens Law Firm before the property had been bulldozed, we could have taken action, including a court injunction if necessary, to prevent any spoliation of evidence. Unfortunately, the plaintiffs did not believe that an insurance company would be so brazen as to commit fraud, as did Liberty Mutual in the instant case. Please call us anytime at 1-866-HEAV LAW if you have any questions about the legal issues in this case or any other cases we have handled. The call is free and so is the phone consultation.

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.

 

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