Articles Posted in Personal Injury

by
Dennis Woolman, former president of The Clemens Coal Company, challenged a district court’s determination that Liberty Mutual Fire Insurance Company didn’t breach a duty to him by failing to procure for Clemens Coal an insurance policy with a black-lung disease endorsement. Clemens Coal operated a surface coal mine until it filed for bankruptcy in 1997. Woolman served as Clemens Coal’s last president before it went bankrupt. Federal law required Clemens Coal to maintain worker’s compensation insurance with a special endorsement covering miners’ black-lung disease benefits. Woolman didn’t personally procure insurance for Clemens Coal but instead delegated that responsibility to an outside consultant. The policy the consultant ultimately purchased for the company did not contain a black-lung-claim endorsement, and it expressly excluded coverage for federal occupational disease claims, such as those arising under the Black Lung Benefits Act (the Act). In 2012, a former Clemens Coal employee, Clayton Spencer, filed a claim with the United States Department of Labor (DOL) against Clemens Coal for benefits under the Act. After some investigation, the DOL advised Woolman that Clemens Coal was uninsured for black-lung-benefits claims as of July 25, 1997 (the last date of Spencer’s employment) and that, without such coverage, Woolman, as Clemens Coal’s president, could be held personally liable. Woolman promptly tendered the claim to Liberty Mutual for a legal defense. Liberty Mutual responded with a reservation-of-rights letter, stating that it hadn’t yet determined coverage for Spencer’s claim but that it would provide a defense during its investigation. Then in a follow-up letter, Liberty Mutual clarified that it would defend Clemens Coal as a company (not Woolman personally) and advised Woolman to retain his own counsel. Liberty Mutual eventually concluded that the insurance policy didn’t cover the black-lung claim, and sued Clemens Coal and Woolman for a declaration to that effect. In his suit, Woolman also challenged the district court’s rejection of his argument that Liberty Mutual should have been estopped from denying black-lung-disease coverage, insisting that he relied on Liberty Mutual to provide such coverage. Having considered the totality of the circumstances, the Tenth Circuit Court of Appeals concluded the district court didn’t err in declining Woolman’s extraordinary request to expand the coverages in the Liberty Mutual policy. “Liberty Mutual never represented it would procure the coverage that Woolman now seeks, and the policy itself clearly excludes such coverage. No other compelling consideration justifies rewriting the agreement— twenty years later—to Woolman’s liking.” View "Liberty Mutual Fire Insurance v. Woolman" on Justia Law

by
Terry Schulenberg, a train engineer for BNSF Railway Company, was injured when the train he was riding “bottomed out.” Schulenberg filed suit against BNSF, alleging liability for negligence under the Federal Employers’ Liability Act (FELA). BNSF filed motions to exclude Schulenberg’s expert witness and for summary judgment, both of which the district court granted. Schulenberg appealed, but the Tenth Circuit Court of Appeals concluded the district court did not abuse its discretion in excluding the expert witness because there was no discernable methodology offered for his opinions. And the Court concluded the district court was correct in granting summary judgment to BNSF because Schulenberg failed to present a dispute of material fact on his sole theory of liability on appeal, negligence per se. View "Schulenberg v. BNSF Railway Company" on Justia Law

by
George Straub, an employee of BNSF Railway Company (“BNSF”), injured his back and neck when, in the course and scope of his duties, he attempted to adjust the engineer’s chair of Locomotive #6295. Straub brought suit, asserting BNSF was (among other things) strictly liable for his injuries under the provisions of the Federal Locomotive Inspection Act (“LIA”). BNSF moved to dismiss; the district court concluded Straub’s injuries did not implicate LIA. The district court ruled the adjustment mechanism of the engineer’s seat was not an “integral or essential part of a completed locomotive.” Instead, according to the district court, the seat adjustment mechanism was a non-essential comfort device. In reaching this conclusion, the district court relied on the Tenth Circuit’s decision in King v. Southern Pacific Transportation Co., 855 F.2d 1485 (10th Cir. 1988). Straub appealed, arguing the district court’s reliance on King was misplaced. The Tenth Circuit held that the allegations set out in Straub’s complaint (i.e., that the engineer’s chair failed when moved initially and stopped abruptly as Straub was attempting to adjust it) stated a violation of LIA: “Once BNSF installed an engineer’s chair with a seat adjustment mechanism, 49 U.S.C. 20701(1) mandated that BNSF maintain the chair so that the seat adjustment device be ‘in proper condition and safe to operate without unnecessary danger of personal injury’ and 49 C.F.R. 229.7 mandated that BNSF maintain the chair so that the seat adjustment mechanism was ‘in proper condition and safe to operate in service . . . without unnecessary peril to life or limb.’” The Court reversed the district court’s grant of BNSF’s motion to dismiss Straub’s claim to the extent it depended on LIA-based strict liability, and remanded this matter for further proceedings. View "Straub v. BNSF" on Justia Law

by
Plaintiffs Jacob McGehee and Steven Ray Heath appealed a district court’s grant of summary judgment to defendants Forest Oil Corp. and Lantern Drilling Co. Forest and Lantern leased a drilling device from Teledrift, plaintiffs’ employer, and returned the device after using it in drilling operations. Plaintiffs then proceeded to clean and disassemble it. McGehee discovered several small bolts had fallen into the device. While he attempted to remove them, the lithium battery inside the device exploded, injuring himself and Heath. They sued Forest and Lantern for negligently causing the explosion by allowing bolts to fall into the device. Following discovery, Forest and Lantern moved for summary judgment, which the district court granted, holding they did not owe the plaintiffs a duty of care under Oklahoma tort law. Finding no reversible error in that judgment, the Tenth Circuit affirmed. View "McGehee v. Southwest Electronic Energy" on Justia Law

by
Plaintiff-Appellant Jeffrey Allen was injured in a car accident in May 2013. His automobile insurance policy included coverage for medical expenses arising from car accidents, but this coverage contained a one-year limitation period such that he could not obtain reimbursement for medical expenses that accrued a year or more after an accident. Allen sought reimbursement for medical expenses accruing more than a year after his accident, arguing this limitation period was invalid on two grounds: (1) a 2012 disclosure form that his insurer sent him stated that his policy covers reasonable medical expenses arising from a car accident, Colorado’s reasonable-expectations doctrine rendered the one-year limitations period unenforceable; and (2) Colorado’s MedPay statute, which required car insurance companies to offer at least $5,000 of coverage for medical expenses, prohibited placing a one-year time limit on this coverage. The district court granted summary judgment in favor of the insurer. After review, the Tenth Circuit rejected both of Allen’s arguments and affirmed the district court order. View "Allen v. USAA" on Justia Law

by
In 2013, while the disputed insurance policy was in effect, several guests at the Siloam Springs Hotel allegedly sustained injuries due to carbon monoxide poisoning stemming from an indoor-swimming-pool heater that had recently been serviced. The hotel sought coverage under the policy, and the insurer denied coverage based on the exclusion for “qualities or characteristics of indoor air.” This case made it back to the Tenth Circuit following a remand in which the district court was directed to determine whether there was complete diversity of citizenship between the parties, which was an essential jurisdictional issue that needed to be decided before it could properly address the merits of this case. On remand, the district court received evidence on this question and determined that diversity jurisdiction was indeed proper. The district court also certified a policy question to the Oklahoma Supreme Court, which held that the exclusion at issue in this case - however interpreted -should not be voided based on public policy concerns. Following the Oklahoma Supreme Court’s resolution of the certified question, the insurer asked the district court to administratively close the case, arguing that “no further activity in this case . . . remains necessary to render the [district c]ourt’s adjudication of the coverage issue which the case concerns a final judgment.” The hotel asked the court to reopen the case to either reconsider its previous order or to enter a final, appealable judgment against the hotel. The district court held that the case had already been administratively closed and it had no need to reopen the case, since “both its finding of diversity jurisdiction and the Oklahoma Supreme Court’s answer to the certified question did not alter in any way” the court’s summary judgment decision on the merits of the coverage dispute. The hotel appealed. The Tenth Circuit determined the hotel was entitled to coverage under the policy at issue, and reversed the district court's denial. The case was remanded for further proceedings on the question of damages. View "Siloam Springs Hotel v. Century Surety Company" on Justia Law

by
F & H Coatings, LLC (“F&H”), a commercial and industrial painting contractor, contracted with Boardman L.L.C. (“Boardman”), a manufacturer of steel pressure vessels and tanks, to sandblast and paint a number of vessels at Boardman’s manufacturing facility in Wichita, Kansas. During the performance of this contract, a fatal accident at the Boardman facility took the life of Toney Losey, an employee of F & H: Losey and his F & H supervisor, Robert Patrick, were preparing a 12,000 pound vessel for sandblasting when the vessel slipped from its support racks and crushed Losey. F & H characterized this event as a “freakish, unforeseeable, and still-unexplained accident.” The Occupational Safety and Health Administration (“OSHA”) learned of the accident the same day, and sent a Compliance Safety and Health Officer to inspect the scene. The OSHA officer also interviewed witnesses and employees of F & H and Boardman. Upon the officer’s recommendation, OSHA issued a citation to F & H for a violation of the General Duty Clause, 29 U.S.C. 654(a)(l), because F & H’s employee was “exposed to struck-by hazards in that the pressure vessel was not placed on a work rack which prevented unintentional movement.” F&H contested the citation. Approximately eight months after the hearing, the ALJ issued a written order, finding that the accident that killed Losey resulted from an obviously hazardous condition of which F & H was aware. F&H appealed OSHA’s final order, asking the Tenth Circuit Court of Appeals to set aside a $7,000 penalty imposed. Finding that the ALJ’s findings were supported by substantial evidence, the Tenth Circuit affirmed OSHA’s final order and the penalty issued. View "F & H Coatings v. Acosta" on Justia Law

by
Several years after a tank car spill accident, appellants Larry Lincoln and Brad Mosbrucker told their employer BNSF Railway Company (“BNSF”) that medical conditions attributable to the accident rendered them partially, permanently disabled and prevented them from working outdoors. BNSF removed appellants from service as Maintenance of Way (“MOW”) workers purportedly due to safety concerns and because MOW work entailed outdoor work. With some assistance from BNSF’s Medical and Environmental Health Department (“MEH”), Appellants each applied for more than twenty jobs within BNSF during the four years following their removal from service. After not being selected for several positions, Appellants filed charges with the Equal Employment Opportunity Commission (“EEOC”), accommodation request letters with BNSF, and complaints with the Occupational Safety Health Administration (“OSHA”). Following BNSF’s rejection of their applications for additional positions, Appellants filed a complaint raising claims for: (1) discrimination under the Americans with Disabilities Act (“ADA”); (2) failure to accommodate under the ADA; (3) retaliation under the ADA; and (4) retaliation under the Federal Railroad Safety Act (“FRSA”). Relying on nearly forty years of Tenth Circuit precedent, the district court concluded that filing an EEOC charge was a jurisdictional prerequisite to suit and it dismissed several parts of Appellants’ ADA claims for lack of jurisdiction. Appellants also challenged the vast majority of the district court’s summary judgment determinations on the merits of their claims that survived the court’s exhaustion rulings. After polling the full court, the Tenth Circuit overturn its precedent that filing an EEOC charge was a jurisdictional prerequisite to suit, thus reversing the district court’s jurisdictional rulings. Appellants’ ADA discrimination and ADA failure to accommodate claims relative to some of the positions over which the district court determined it lacked jurisdiction were remanded for further proceedings. With respect to the district court’s summary judgment determinations on the merits of appellants’ claims that survived the exhaustion rulings, the Tenth Circuit was unable to reach a firm conclusion on the position-based ADA discrimination and failure to accommodate claims. The Court concluded the district court’s dismissal of the FRSA claims were appropriate. Therefore, the Court reversed in part, affirmed in part and remanded this case for further proceedings. View "Lincoln v. BNSF Railway Company" on Justia Law

by
Jake’s Fireworks, Inc. (“Jake’s”), a fireworks importer and distributor, assigned two employees to clean out its old facility. A fire broke out, injuring one employee and killing the other. After an Occupational Safety and Health Administration (“OSHA”) inspection, the Secretary of Labor (the “Secretary”) cited Jake’s for violating OSHA safety and health standards. Jake’s contested the citation before an Occupational Safety and Health Review Commission (“OSHRC”) Administrative Law Judge (“ALJ”), who affirmed in full. Jake’s sought review from the OSHRC’s discretionary review panel (the “Commission”), but it declined, finalizing the ALJ’s decision. Jake’s then filed a petition to the Tenth Circuit Court of Appeals, contesting violations of: (1) 29 C.F.R. 1910.109(b)(1), improper storage and handling of explosives; (2) 29 C.F.R. 1910.178(c)(2)(vii), improper use of a liquidpropane (“LP”) forklift around combustible dust; and (3) 29 C.F.R. 1910.1200(e)(1), lack of a written hazard communication program. Finding no reversible error, the Tenth Circuit denied the petition for review. View "Jake's Fireworks v. Department of Labor" on Justia Law

by
Perry Odom suffered serious injuries when a semi-trailer collapsed on him at work. His employer, Penske Logistics, did not own the trailer, but his employer’s sole stockholder, Penske Truck Leasing, did. Odom and his wife sought to recover from Penske Truck Leasing through a personal injury action in federal court. The district court dismissed their complaint, reasoning Oklahoma’s workers’ compensation scheme as applied here shielded an employer’s stockholders from employee claims arising out of a workplace injury. The Odoms appealed, challenging the district court’s interpretation of the Oklahoma statute. The Tenth Circuit Court of Appeals certified the interpretive question to the Oklahoma Supreme Court, and received an answer making it clear the district court applied an incorrect legal standard in dismissing this case. The Tenth Circuit therefore reversed and remanded for further proceedings. View "Odom v. Penske Truck Leasing Co." on Justia Law