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Products Liability - Chemical Drum Explosion

Injuries alleged: Burn scars over 80-percent of body

Tilton v. Union Oil Company of California, et al.

Nortolk Superior Court, C. A. No. 94-01901

Judge: Charles M. Grabau

Trial by Jury

Amount of award: $2.9 million (including interest)

Date: July 27, 1999

Highest offer: $120,000 from landowner; $100,000 from defendant

Attorneys for Plaintiff: John M. Wozniak, Esq., Law Office of John M. Wozniak, Mendon and Daniel J. Murphy, Esq., Murphy, Mackenzie, Michaels & Sullivan, Boston

Attorneys for defendant: Withheld

Other useful information:

On Oct. 9, 1991, the 20-year-old plaintiff was allegedly instructed to remove the top of an unlabeled 55-gallon drum with an oxy-acetylene torch. When the plaintiff touched the torch to the drum, the drum exploded. The plaintiff was engulfed in flames and received second and third degree burns to 80-85 percent of his body.

Following the accident, the drum, which allegedly had been filled with the chemical Toluene, disappeared. During the course of discovery the defendant oil company stated that bills reflecting deliveries of Toluene to the plaintiff's employer were not available and had been lost. The defendant did produce computer-generated summary sheets of deliveries of Toluene to the plaintiff's employer over a span of 22 years.

During the course of trial, the plaintiff was able to show that the defendant oil company was the exclusive provider of Toluene to the plaintiff's employer.

One of the oil company representatives testified that the drums in which they delivered Toluene were black with white tops. The photographic evidence of the drum involved in the explosion showed some remnants of white paint on the top and black coloring on the body of the drum.

The plaintiff's witnesses testified that on at least one occasion the defendant oil company had made a bulk delivery by truck and filled existing drums at the employer's premises. One witness said that he had no memory of as to whether or not the drums had a warning label.

The plaintiff's expert testified that the characteristics of the explosion were consistent with the chemical Toluene. The fire investigator for the town of Franklin testified that he had identified the group of drums that held similar characteristics to the exploded drum. The investigator also found one drum, clearly marked as Toluene from the defendant oil company, which was consistent with the characteristic of the drum that exploded.

The plaintiff settled with the landowner for $120,000 prior to commencement of trial. The plaintiff settled the workers' compensation hen for $60,000 from the proceeds of the settlement with the landowner.

The jury found the plaintiff negligent but also determined that the plaintiff's negligence had no causal relationship to the accident.

Bankruptcy - Mortgage Obligation - Divorce - 'Maintenance And Support'

Where a Bankruptcy Court judge determined that a now-bankrupt divorced husband's obligation to pay the mortgage on a parcel of property in Shrewsbury is in the nature of maintenance and support and therefore is nondischargeable pursuant to 11 U.S.C. § 523(a)(S), the judge's ruling was not clearly erroneous and should accordingly be affirmed.

The matter must be remanded, however, for consideration of whether pre-petition payments made by the debtor could be credited against the debtor's support obligation.

Nondischargeability

"After considering the evidence in this case, the Bankruptcy Court held that at the tone of the Property Settlement Agreement, the parties intended for the payments on the Shrewsbury mortgage to operate as a support obligation rather than a property distribution. In reaching this conclusion, the Bankruptcy Court properly considered the language and substance of the Agreement in light of the surrounding circumstances, each party's financial circumstances at the time of the Agreement, and the function served by the obligation at the time of the Agreement. Although the Agreement itself characterized t the Shrewsbury mortgage as a property distribution, the Bankruptcy Court determined that the language of the Agreement should not be given a 'great deal of weight on the question of what was really intended because what was really intended was masked in an attempt to lower the tax impact.' Indeed, the attorney who drafted the Agreement testified that the Agreement was drafted with tax implications in mind. The bankruptcy judge also made an independent calculation of [ex-wife] Pamela's income and expenses. When this calculation led to a monthly payment equivalent to the mortgage payment due on the Shrewsbury premises it bolstered his conclusion that [debtor] Peter [M. Schultz] and Pamela intended to create a support obligation through the vehicle of that payment. Having reviewed the record, this Court rules that the Bankruptcy Court's conclusion that the obligation to pay the Shrewsbury mortgage was a nondischargeable support obligation is not clearly erroneous."

Remand

"Peter also asks this Court to reduce his nondischargeable obligation of $123,751.84 by $100,000.00 - the amount he paid to Pamela under the Agreement prior to filing his Chapter 11 petition. This would appear to be a last ditch attempt to avoid the force of the Bankruptcy Court ruling. Still, from the record before this Court, it is unclear whether the Bankruptcy Court considered the pre-petition payments made by Peter in calculating the extent to which the debt was not dischargeable. It is also unclear which part, if any at all, of the $100,000.00 could be considered as payment of a future support obligations. l n order to resolve these ambiguities, this matter must be remanded to the Bankruptcy Court."

Conclusion

"This Court affirms in part the determination of the Bankruptcy Court that $123,751.84 was intended as a support obligation at the time of the divorce settlement agreement. The matter is, however, remanded so that the Bankruptcy Court may consider whether any portion of the pre-petition payment of $100,000 is to be credited against this future support obligation."

In Re: Schultz, Peter M. (Lawyers Weekly No. 02-287-96) (7 pages) (Young, J.) John M. Wozniak for the debtor husband; Alan S. Dambrov for the wife (Civil Action No. 96-40124).

Manhole explosion leads to settlement

The attorney for a young Holliston man who was severely injured by a flying manhole cover says is client has settled a lawsuit against NStar.

Eric Brack was a front-seat passenger in his father's car on Route 135 in Natick when a manhole explosion propelled the 185-pound cover through the car's windshield. Brack's jaw, arm and bronchial tube were crushed by the impact.

Brack, now 21, spent two weeks in a medically-induced coma and underwent several surgeries after the July 2004 accident.

His family sued NStar for negligence.

Brack's attorney, John M. Wozniak of Mendon, said that the two sides had reached a settlement in the case but would not give details, citing a nondisclosure agreement.

Technician slips on worn stairway, injuries back - tread on bottom step, handrail were missing - $1.875 million verdict

$1.875 million verdict

The plaintiff was an HVAC technician for a company performing renovation work on a building that was being converted into a day-care center. The work involved the removal of existing equipment and the installation of new equipment on the second floor.

While carrying a coil out of the building, the technician descended an exterior stairway. He lost his balance and twisted on the bottom step, which was missing half its tread. He attempted to catch himself, but the handrail was also missing.

As a result of the accident, the man sustained a severe back injury requiring a four-level circumferential fusion, extending from L2 to S1 on the anterior and posterior. Prior to this accident, he had suffered another work-related injury that required a discectomy. Although that procedure was performed within a year of this accident, he had returned to work without restriction.

The man underwent a successful surgical procedure, but he has been unable to return to his prior employment.