State Supreme Court Rules Against Workers Hurt In Kleen Energy Plant Explosion

July 28--The state Supreme Court, in a 6-1 decision Wednesday, upheld a Superior Court judge's dismissal of a lawsuit filed against O&G Industries by workers seriously injured in the 2010 Kleen Energy explosion that killed six people.

Two men who were working within 100 yards of the explosion on Feb. 7, 2010, during a pipe cleaning "gas blow" procedure at the Middletown power plant sued O&G, the general contractor. A Superior Court judge ruled that, under an amended 1988 state law, O&G was immune from litigation.

Attorneys for James Thompson and James McVay appealed to the Supreme Court to have the lower court's ruling overturned and the case revived.

"O&G stands to use an unauthorized immunity to avoid liability for an explosion that, the plaintiffs allege, could have been avoided. Unless reversed, the decision ... has set the plaintiffs' case on an unjustly and legally incorrect path, with the result that construction workers at O&G's site, who were injured in the massive explosion, will lose their chance to vindicate their rights," Attorney James J. Healey wrote in his brief.

The lawsuit hinged on the interpretation of the 1988 amendment that states: "the principal employer must be party to paying workmen's compensation benefits in return for statutory immunity from lawsuits."

In this case, O&G established a Contractor Controlled Insurance Program (CCIP), which provided workers' compensation insurance as well as general liability insurance. O&G argued that it was immune from civil actions because it was a "principal employer" that had paid workers' compensation benefits to Thompson and McVay.

"The plaintiffs did not challenge the defendant's status as a principal employer, but asserted that a genuine issue of material fact existed as to whether the defendant had 'paid' workers' compensation benefits. In particular, the plaintiffs argued that, although the defendant sponsored a CCIP and paid the premium under the policies, it was the subcontractors that had actually paid the benefits, because the defendant effectively shifted the cost of the premium to its subcontractors by issuing change orders in the amount of each subcontractor's insurance costs," the majority decision states.

Superior Court Judge David Sheridan granted O&G's motion for summary judgment in 2013, ruling that O&G was immune because it had paid into the CCIP. The Supreme Court justices partially agreed with the plaintiffs' argument but ruled that O&G was immune under the law.

"We agree with the plaintiffs' claim that the trial court improperly interpreted the term 'paid compensation benefits' ... but further conclude that, even under the proper construction of the statute, no genuine issue of material fact exists as to whether the defendant paid compensation benefits to Thompson and McVay," Justice Richard A. Robinson wrote.

"The defendant did, in fact, pay the CCIP premium 'on behalf of the subcontractor[s],' because the subcontractors received the benefit of workers' compensation coverage under the CCIP, rather than having to provide their own coverage."

Thompson and McVay subsequently applied for and received workers' compensation benefits under the CCIP, including medical expenses and lost wages, the majority opinion indicates.

The only dissenting judge was Dennis G. Everleigh.

"The court has given a free pass to a company who basically killed six people," said Joel Faxon, attorney for the workers. "It is a sad day for these families who are still dealing with injuries they suffered in the horrific explosion."

The blast occurred on the morning of Super Bowl Sunday in February 2010 as contractors were rushing to finish the plant by June 1. If the plant had been running by then, O&G would have earned as much as a $19 million bonus, according to the contract.

The explosion occurred during a procedure called a "gas blow," in which natural gas was pumped through pipes to clean out debris. The gas was vented into a closed courtyard where it built up until an undetermined ignition source sparked the explosion, killing six people and injuring more than 50 others. Most of the men killed were working in an area closest to the courtyard.

Thompson was on scaffolding 40 feet in the air when the explosion occurred, and when he fell to the ground he suffered head, back and neck injuries. McVay was performing tests on gas turbines and was struck by a ladder and other debris as he tried to shield himself, suffering numerous injuries and also hearing loss.

Those killed in the explosion were Peter Chepulis, 48, of Thomaston; Ronald Crabb, 42, of Colchester; Chris Walters, 48, of Florissant, Mo.; Kenneth Haskell, 37, of New Durham, N.H.; Raymond Dobratz, 58, of Old Saybrook; and Roy Rushton, 36, of Hamilton, Ontario.

Estates for all but Dobratz settled their lawsuits in 2012 after several mediation sessions with Superior Court Judge Robert L. Holzberg. The settlements totaled $1.5 million and $2.5 million, according to attorneys involved in the various cases and probate records.

The explosion, heard for more than 40 miles around, led to a statewide ban on gas blows, and a call from federal safety experts to prohibit the procedure nationally.

The state conducted a criminal investigation but no charges were filed. Federal work-safety regulators issued more than $16 million in fines against O&G and several of its subcontractors and identified more than 100 violations at the plant, which was 95 percent complete when the explosion occurred.

The plant eventually was rebuilt and opened in 2011.

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