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Travelers Indemnity Co. v. PCR Incorporated12/9/2004
s sufficient proof to preclude the entry of a summary judgment for PCR. Id. In so holding, we found that there was an abundance of evidence leading to the conclusion that PCR's conduct was substantially certain to result in injury to its employees:
As in Connelly, there is evidence here that PCR knew of the highly explosive nature of TFE and the reactants, yet failed to disclose this to its employees. Further, as in Connelly, there is evidence here that by putting the concern for profits first, PCR ignored the safety risks and attempted to meet Dupont's demands by using an unsuited existing reaction facility that lacked the proper safety instruments. In fact, this case is arguably more egregious than Connelly and Cunningham in that PCR knew of prior similar explosions with the same and similar chemicals involved in the explosion at issue here, yet chose to ignore them. . . . here are allegations in this case that PCR did not disclose the extent of the danger created by TFE of which ICI had informed PCR in writing.
Id. at 691.
At the time of the explosion on November 22, 1991, PCR was combining the chemicals "tetrafluoroethylene (TFE) with hexafluoropropene (HFP), in the presence of aluminum chloride" to create F-pentene-2, a replacement for the coolant, Freon 113. Id. at 684. PCR was aware that TFE is an extremely dangerous chemical, for "ICI, the company that manufactures TFE, notified PCR in April 1991, that it was planning to discontinue supplying TFE throughout the United States because of its hazardous character." Id. at 685. "TFE's explosive force is equal to two-thirds that of TNT, and the risk of an explosion by using TFE in the production of F-pentene-2 is very high." Id. at 684-85 (emphasis added). The risk was so high, in fact, that there was "evidence of 'at least three' other uncontrolled explosions at PCR in just under two years." Id. at 685.
Since similar uncontrolled explosions had occurred at PCR on at least three different occasions and since TFE was known to be a dangerous and explosive chemical, this November 22, 1991, explosion that claimed the life of Paul Turner and seriously injured James Creighton was foreseeable, substantially certain to occur, and should have been anticipated. Hence, it is quite clear that this was not an accident. Because this was not an accident, PCR was not covered under Part Two of its Employers Liability Insurance Policy since that policy's "coverage applied only to claims of 'bodily injury by accident . . . aris out of and in the course of the injured employee's employment by ." Majority op. at 7.
For these reasons, I dissent.
WELLS and CANTERO, JJ., concur.
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