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Sherner v. Conoco2/29/2000
APPEAL FROM: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, The Honorable Russell C. Fagg, Judge presiding.
Heard: November 30, 1999
Submitted: December 2, 1999
Peter Sherner (Sherner) appeals from the order of the Thirteenth Judicial District Court, Yellowstone County, granting Respondent Conoco, Inc. (Conoco) summary judgment. We reverse and remand.
The two issues on appeal are:
I What standard should be used to determine whether an employer's act or omission is "intentional and malicious," thereby allowing an injured worker to bring a tort action against his employer under ยง 39-71-413, MCA?
II Whether it was error for the District Court to grant summary judgment in favor of Conoco.
FACTUAL BACKGROUND
In 1995, Sherner was an employee at the Conoco Refinery in Billings, Montana. On August 7, a leak was discovered in a nozzle of the Fluidized Catalytic Cracker (FCC) Unit. The FCC Unit makes gasoline and light cycle oil which is processed into diesel fuel. John Gott, a member of Conoco management, elected to repair the nozzle leak and at the same time, perform work inside one of the FCC vessels known as W-58. In order to bring the FCC Unit down for repair, the refinery operations crew must follow a complex and detailed shutdown procedure. Part of this procedure involves isolating the FCC Unit from other units of the Refinery which are not going to be repaired. The FCC Unit is then steamed out in order to remove hazardous gasses.
Once the operations crew completes this procedure, the FCC Unit is turned over to a "blind" foreman who establishes that valves are closed and checks for the existence of gas using a sensor. The blind foreman may then authorize workers to begin the process of "blinding" the FCC Unit. Blinding involves inserting flat metal plates into openings in the pipes to ensure that gas such as hydrogen sulfide (H2S) does not move through the pipes to the FCC Unit. Breathing H2S gas results in poisoning and even in very low concentrations causes headaches and nausea.
Two known sources of H2S are connected to the FCC Unit; the gas recovery plant (GRP), and a desulferizer known as HDS #1. The GRP was idled but not depressurized during the August 1995 shutdown and repair and the HDS #1 was still operating under pressure. The tendency in such a situation is for gas under pressure in a closed space to move toward an area with less pressure, i.e., from the pressurized GRP Unit and the HDS #1 through the pipes to the non-pressurized FCC Unit.
According to Conoco rules no work, including blinding, could begin until the blind foreman signed a work authorization permit. It is also the blind foreman's responsibility to walk through the Unit to check valves and test for the presence of gas.
Blind foreman Wayne Lipp (Lipp), tested the overhead line on W-58 and found it free of H2S. According to Conoco policy, blinding was to begin within one hour after the work permit was issued, however in this case it did not. Around this time, Gott and other managers smelled a sour gas odor in the vicinity of W-58. Management did not stop work on the shutdown as a result of this odor.
Approximately 2 hours after Lipp performed the gas sniff test at the top of W-58, he signed a work authorization permit allowing workers to begin installing blinds. Lipp assigned Sherner and another worker to install the blind on the overhead line leading to the W-58 tower (a vessel which is part of the FCC Unit). Sherner was exposed to H2S gas while he was installing the blind and was seriously injured. Conoco's i
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