Exclusive Remedy

Chemical Release Injuries Not Covered by Comp

A judge says BP failed to prove that 315 employees injured in a chemical release were harmed in the scope of their employment.
By: | January 26, 2015

BP Products may be on the hook for injuries to more than 300 workers after an alleged chemical release. A federal District Court in Texas said the company did not prove that the injuries were work-related. Attorneys and other experts are closely watching the case as another potential attack on the exclusive remedy defense.

“I don’t think it’s a major blow to the exclusive remedy defense at this juncture,” said Thomas Robinson, JD and author of workcompwriter.com. “As the case moves forward, that might change.”

More than 500 plaintiffs said they were injured by the chemical release at the BP refinery in Texas City in November 2011. More than half were identified as workers at the refinery or at a Dow Chemical plant nearby while others were nearby residents.

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“BP sought partial summary judgment on the negligence and strict liability claims of 315 ‘worker’ plaintiffs, contending in relevant part that workers’ compensation insurance claims were the exclusive remedies for the workers plaintiffs alleged injuries,” Robinson explained.

The court said at trial BP Products would have to prove the employees were covered by workers’ comp and that their injuries were work-related, meaning they occurred in the scope and course of employment. While the company did show the workers were covered by workers’ comp, the court said it failed on the second element.

“Defendant provided the Court with no evidence that the contractor plaintiffs’ alleged injuries were work-related,” the court said. “Defendant did offer excerpts from signed fact sheets prepared by each individual client.” However, the excerpts “show only each plaintiff’s identifying information and information about his or her place of work and job position in November 2011. Nothing in the fact sheet excerpts indicates where or when plaintiffs believe they were exposed to BP’s alleged chemical release.”

But the court said that could change. “The court would look favorably on a renewed motion for summary judgment on claims that may be subject to the exclusive remedy of workers’ compensation after discovery into the circumstances of the workers’ alleged injuries is complete.”

Nancy Grover is the president of NMG Consulting and the Editor of Workers' Compensation Report, a publication of our parent company, LRP Publications. She can be reached at [email protected]

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The R&I Editorial Team can be reached at [email protected]